                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4812


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANIKA N. GREENE, a/k/a Neek, a/k/a Anika Carroll,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cr-00032-AWA-LRL-2)


Submitted:   December 22, 2016             Decided:   March 7, 2017


Before GREGORY, Chief Judge, WYNN, Circuit Judge, and DAVIS, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Fernando Groene, FERNANDO GROENE, P.C., Williamsburg, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Kaitlin C.
Gratton, Brian J. Samuels, Assistant United States Attorneys,
Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Anika N. Greene was convicted by a jury of conspiracy to

commit bank and wire fraud, bank fraud, wire fraud, access device

fraud, and three counts of aggravated identity theft, in violation

of 18 U.S.C. §§ 2, 1028A, 1029(a)(2), 1343-44, 1349 (2012).                      She

was sentenced to concurrent terms of 24 months’ imprisonment on

the   aggravated      identity      theft     convictions,      and    18   months’

imprisonment on the remaining counts, to run concurrently with

each other and consecutive to the 24-month terms.                       On appeal,

Greene   argues      that   the    district    court    erred   in    allowing   the

Government      to   introduce      evidence    about    her    participation     in

uncharged fraud, there was insufficient evidence to support her

aggravated identity theft convictions, and her conduct did not

justify an enhancement under U.S. Sentencing Guidelines Manual

2B1.1(b)(10) (2015).            For the reasons that follow, we vacate

Greene’s conviction on Count Five (aggravated identity theft) and

remand for entry of an amended judgment.                In all other respects,

we affirm.

                                         I.

      Greene first claims that the district court erred in admitting

evidence regarding a separate act of credit card fraud at a Chanel

store.     We    review     a     district    court’s    determination      of   the

admissibility of evidence for abuse of discretion.                    United States

v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).

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      In denying Greene’s motion to exclude evidence of the Chanel

fraud, the district court concluded that the evidence was intrinsic

to the charged offense and, alternatively, that the evidence was

admissible under Fed. R. Evid. 404(b)(2) to show intent and absence

of mistake or accident.           On appeal, Greene challenges the court’s

conclusion that the evidence was intrinsic, but fails to challenge

its   independent     analysis         under      Rule   404(b)(2).       Because     the

“[f]ailure   of   a   party       in    its       opening    brief   to   challenge    an

alternate    ground    for    a    district          court’s    ruling    waives    that

challenge,” Brown v. Nucor Corp., 785 F.3d 895, 918 (4th Cir. 2015)

(alterations and internal quotation marks omitted), we conclude

that Greene has not preserved this issue on appeal.

                                          II.

      Next, Greene asserts that there was insufficient evidence to

support her three convictions for aggravated identity theft.                           We

review the sufficiency of the evidence supporting a conviction de

novo.   United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013).

“A defendant bringing a sufficiency challenge must overcome a heavy

burden, and reversal for insufficiency must be confined to cases

where the prosecution’s failure is clear.” United States v. Engle,

676 F.3d 405, 419 (4th Cir. 2012).                          In assessing evidentiary

sufficiency, we must determine “whether, viewing the evidence in

the light most favorable to the government, the jury’s verdict is

supported    by   substantial          evidence,      that     is,   evidence   that    a

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reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     McLean,   715     F.3d   at       137    (internal    quotation   marks

omitted).

     To establish aggravated identity theft, the Government must

prove that a defendant

     (1) knowingly transferred, possessed, or used, (2)
     without lawful authority, (3) a means of identification
     of another person, (4) during and in relation to a
     predicate felony offense. . . . Relevant to the first
     element, the government must prove that the accused knew
     that the means of identification belonged to another
     person.

United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014)

(internal quotation marks omitted).

                                      A.

     Count Five of the superseding indictment charged that, on

August 2, 2013, Greene and others established and used a Home Depot

credit card account in B.K.’s name and without B.K.’s permission.

We conclude there is insufficient evidence in the record to sustain

this conviction.

     The    only   evidence    connecting           Greene   to   the   offense   was

location data for the cell phone registered in Greene’s name.

However, no evidence was presented at trial to demonstrate that

Greene was necessarily in the same location as her cell phone on

August 2, 2013.     Further, there was no location data for Greene’s

phone for a significant amount of time on August 2, including the

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five hours preceding and following the Home Depot fraud, causing

the Government to rely on the location data of a coconspirator’s

phone in an effort to establish Greene’s location.                     Moreover, the

Government offered no evidence that Greene knowingly participated

in the scheme or knew that the identifying information of the

victim   belonged     to    a   real   person,       both   required    elements   to

establish aggravated identity theft.

     The   Government’s         failure       to    present   evidence     regarding

Greene’s state of mind is also fatal to its argument that Count

Five can be upheld based on Pinkerton v. United States, 328 U.S.

640 (1946).    “The Pinkerton doctrine makes a person liable for

substantive offenses committed by a co-conspirator when their

commission is reasonably foreseeable and in furtherance of the

conspiracy.”   United States v. Ashley, 606 F.3d 135, 142-43 (4th

Cir. 2010).    Here, the evidence fails to establish that Greene

knew of and knowingly decided to participate in the conspiracy as

of August 2, 2013.         Pinkerton is inapplicable if Greene was not a

member of the conspiracy at the time of the Home Depot fraud.

                                          B.

     Greene    also        challenges     her       aggravated   identity      theft

convictions arising out of a trip to Ashland, Virginia, on August

30, 2013 (Counts Six and Seven).                   Count Six charged the use of

J.B.’s identity, while Count Seven was based on the possession of

and plan to use the identifying information of M.V., L.M., and

                                          5
R.P.   Viewed in the light most favorable to the Government, there

is sufficient evidence to conclude that Greene committed these

offenses.

       At trial, coconspirator Alice Howard testified that she,

Greene, and another conspirator traveled from New York City to

Ashland, Virginia, on August 30, 2013, and that Greene drove for

part of the trip.   Howard testified that the conspirators obtained

and possessed personally identifying information of J.B., M.V.,

L.M., and R.P, without authority, and used or conspired to use

that information to impersonate the victims and unlawfully access

and transfer funds from their bank accounts.        Howard also stated

that all the conspirators, including Greene, knew and discussed

that bank fraud was the purpose of their trip.      Although there was

no express testimony that Greene knew that the victim’s identities

belonged to real people, it is reasonable to infer such knowledge

when existing bank accounts are the subject of the fraud.       United

States v. Clark, 668 F.3d 568, 574 (8th Cir. 2012) (“A reasonable

juror could infer that Clark . . . knew that banks open accounts

for, and give credit to only real people.        Thus, Clark knew that

the scheme could result in successful deposits and withdrawals

only if [the identity belonged to] a real person with a real bank

account.”).      Accordingly,   the   evidence     is   sufficient   to

demonstrate that Greene aided and abetted the commission of the

offenses charged in Counts Six and Seven by willingly driving the

                                 6
conspirators to Virginia with knowledge of the purpose of their

trip.

                                      III.

        Finally, Greene asserts that the district court erred when it

enhanced her offense level based on USSG § 2B1.1(b)(10).                    Under

this    Guideline,    a   defendant       receives   a   two-level    sentencing

enhancement “[i]f (A) the defendant relocated, or participated in

relocating, a fraudulent scheme to another jurisdiction to evade

law enforcement or regulatory officials . . . or (C) the offense

otherwise     involved     sophisticated        means     .   .   .    .”     USSG

§ 2B1.1(b)(10).       We review the district court’s factual findings

for clear error and its legal conclusions de novo.                United States

v. Horton, 693 F.3d 463, 474 (4th Cir. 2012).

        On appeal, Greene asserts that her act of driving Howard and

Washington    to    Virginia   did    not     involve    sophisticated      means.

However, Greene’s argument only tangentially acknowledges that the

district court found the enhancement applicable under both the

sophisticated means provision, USSG § 2B1.1(b)(10)(C), and the

relocation provision, USSG § 2B1.1(b)(10)(A).                 We conclude that

the     two-level    enhancement     is    plainly   appropriate      under   the

relocation provision based on the evidence that Greene drove her

coconspirators out of state because they believed they would be

caught if they perpetrated the fraud in New York.



                                          7
     Accordingly, we vacate Greene’s conviction for aggravated

identity theft in Count Five and remand for the entry of an amended

judgment.   As to all other claims, we affirm the judgment of the

district court.    We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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