                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0421n.06

                                           No. 17-1595

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                               Aug 17, 2018
                                                                               DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA                                )
                                                         )
        Plaintiff-Appellee,                              )
                                                         )       ON APPEAL FROM THE
 v.                                                      )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
 ANTONIO DEJESUS PEREZ-MARTINEZ                          )       DISTRICT OF MICHIGAN
                                                         )
        Defendant-Appellant.                             )
                                                         )

BEFORE: MOORE, GIBBONS, and ROGERS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. After a four-day jury trial, Antonio Perez-

Martinez (“Perez”) was convicted of multiple charges related to a wire-fraud conspiracy and

identity-theft scheme in which he and associates illegally obtained and used consumers’ credit-

card information. He appeals, alleging a fatal variance from the indictment, improper introduction

of evidence, and prejudicial errors in his sentencing. We affirm the district court.

                                                 I.

       Perez was convicted in January 2017 of conspiracy to commit wire fraud, in violation of

18 U.S.C. § 1349 and 18 U.S.C. § 1343, access device fraud, in violation of 18 U.S.C. § 1029, and

aggravated identity theft, in violation of 18 U.S.C. § 1028A, in connection with a credit-card fraud

and “skimming” scheme.

       At trial, the government demonstrated that Perez spearheaded an operation in which he and

associates obtained consumers’ credit-account information, encoded that data onto cloned access
No. 17-1595, United States v. Perez-Martinez


devices (i.e., counterfeit credit cards1), and then used these cloned access devices to purchase

goods and stored-value cards. A primary means by which the group obtained credit-account

information was by installing credit-card “skimmers,” which have the ability to clone consumers’

credit-card information, onto gas station pumps. Once retrieved from a pump, these skimmers

would be connected to a computer, and the captured data would be downloaded and encoded onto

new cards. The government also introduced evidence that, prior to upgrading to skimmers, Perez

purchased compromised credit-card data through an illicit website, which data he then encoded

onto cards that he and associates used to make purchases.

         Four of Perez’s original co-defendants in this case, Raul Gonzalez Falcon (“Falcon”),

Yunier Carballo-Pupo (“Pupo”), Manuel Perez-Cabrera (“Cabrera”), and Michael Velazquez-

Gregori (“Gregori”), testified against him at trial2 and outlined the comprehensive fraud scheme

headed by Perez. The men all testified that Perez recruited them shortly after they moved to the

United States from Cuba to be a part of his credit-card-fraud operation, which he ran out of Austin,

Texas. They also outlined the trips that they would take around the country at Perez’s instruction

to create and use cloned cards.

         In June 2015, Pupo, Falcon, Cabrera, Gregori, and three other men, Pedro Sanchez-Pupo,

Yoan Mafut, and “Danilo from Miami,” traveled from Texas to Ohio to Colorado, attempting to

use credit cards encoded with data that Perez had obtained from illicit Internet sites to make

fraudulent purchases, though they had a low success rate. On another trip in June or July 2015,

Falcon, Cabrera, Gregori, and Mafut traveled to Michigan and again attempted to use cards


         1
            18 U.S.C. § 1029 defines “access device” as “any card, plate, code, account number, electronic serial
number, mobile identification number, personal identification number, or other telecommunications service,
equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with
another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a
transfer of funds (other than a transfer originated solely by paper instrument).” 18 U.S.C. § 1029(e)(1).
         2
             The men testified using translators.

                                                          2
No. 17-1595, United States v. Perez-Martinez


encoded with account information Perez had obtained online, but returned to Texas at Perez’s

instruction after they had little success. It was around this time that Perez began looking into using

credit-card skimmers instead of purchasing compromised accounts online. Perez accompanied

Falcon, Pupo, Cabrera, Gregori, Sanchez-Pupo, and Mafut, among others, on another trip, which

was to Wisconsin in July 2015 and was the group’s first attempt at using a skimmer, which Perez

provided. Perez, however, instructed the group to turn back after one day, due to computer

problems that prevented them from installing the skimmer. But a subsequent trip was more

fruitful. In August 2015, Perez, Falcon, Pupo, Cabrera, Gregori, Mafut, and others travelled to

McAllen, Texas, and Perez was able to use the skimmers (which had been previously installed at

pumps by Pupo and another conspirator) to code counterfeit cards, which the men were then able

to successfully use to make purchases.

        Later in August, on a skimming trip to Perry, Michigan, Pupo and Falcon were arrested

while installing a skimmer at a gas station. During this arrest, the police seized the skimmer and

the laptop that Perez had given them to use. Perez’s co-defendants Cabrera and Gregori were

arrested in Michigan on September 9, 2015, while on a fraud trip taken at the direction of Sanchez-

Pupo.3 Perez was not arrested until August 8, 2016, when police apprehended him as he was re-

entering the United States from Canada in Derby Line, Vermont.

        At trial, the prosecution corroborated the witnesses’ accounts of the fraud trips with

forensic evidence from Perez’s seized laptop, from Perez’s cell phone, and from his co-defendants’

cell phones. Additionally, as proof of Perez’s intent to defraud in this case, the government

introduced evidence that in 2014 Perez had been prosecuted in Williamson County, Texas, for

credit-card fraud. In the 2014 case, Perez pled guilty and was sentenced to deferred adjudication,


        3
          At trial, the government did not seek to prove that the September 9 trip was done at Perez’s direction but
instead acknowledged that it represented Sanchez-Pupo’s branching out to spearhead a trip of his own.

                                                         3
No. 17-1595, United States v. Perez-Martinez


which required mandatory meetings with a parole officer and placed limits on his travel outside of

Williamson County. The prosecution offered Perez’s failure to attend mandatory meetings with

his probation officer after September 2015 as evidence of his flight in this case.

         The jury returned a guilty verdict on all counts, and Perez was sentenced to 144 months’

imprisonment. He then filed this appeal.

                                                           II.

                                                          A.

         Perez first claims that there was a fatal variance between the allegations in the indictment

and the proof offered at trial, as the indictment alleged only a single conspiracy, and, he argues,

the evidence at trial showed multiple conspiracies. There was no fatal variance, because a rational

juror could conclude that the evidence at trial showed a single, overarching conspiracy.

                                                           1.

         This court normally “reviews the question of whether a variance has occurred de novo.”

See United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006). However, if the variance issue was

not raised at trial, we review for plain error only. Id.; see also United States v. Soto, 794 F.3d 635,

658 (6th Cir. 2015). Here, Perez claims that he preserved the variance issue by requesting a

multiple-conspiracies jury instruction,4 while the government argues that the issue was waived.

But Perez did not preserve this issue, as his counsel told the district judge that a multiple-




          4
            Perez conflates his argument that there was a material variance from the indictment with the district court’s
failure to give a multiple-conspiracies instruction to the jury. A variance and a multiple-conspiracies instruction are
generally analyzed as distinct issues. See United States v. Warner, 690 F.2d 545, 546–51 (6th Cir. 1982) (addressing
variance and a multiple-conspiracies instruction separately). However, here Perez characterizes his argument as
dealing with the single issue of whether there was a variance; we have therefore treated it as such.

                                                           4
No. 17-1595, United States v. Perez-Martinez


conspiracies instruction was not warranted and otherwise did not raise the variance issue. 5 We

therefore review for plain error.

          Plain error arises only when there is “(1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Maliszewski, 161 F.3d 992, 1003 (6th Cir. 1998) (quoting

United States v. Dedhia, 134 F.3d 802, 808 (6th Cir. 1998)). If these factors are present, this court

may exercise its discretion to notice a forfeited error if the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” Id.

                                                            2.

          There was no error here, and thus our plain error inquiry concludes at its first step. See

United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993) (“Absent any error, our inquiry is at an

end.”).

          “A variance to the indictment occurs when the charging terms of the indictment are

unchanged, but the evidence at trial proves facts materially different from those alleged in the

indictment.” Caver, 470 F.3d at 235. Where, as here, a defendant is charged with a single

conspiracy in the indictment, there is reversible error if the evidence at trial could “reasonably be

construed only as supporting a finding of multiple conspiracies” and the appellant can demonstrate

that he was prejudiced. United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982) (emphasis

added). If, however, considering the evidence “in the light most favorable to the government,” a



          5
           During a jury instructions conference with the district court, Perez’s counsel mentioned a multiple-
conspiracies instruction only for the purpose of assuring the court that she would not seek such an instruction. She
stated:
          I considered 3.08 and 3.09 regarding evidence of multiple conspiracies. . . . I read quite a lot of case
          law. I’m not intending to offer any sort of argument that there were multiple conspiracies and that’s
          a reason why there’s a problem with the indictment or something, but I wanted to raise the issue so
          that everybody knows I looked at it, I don’t think it applies.
DE 268, Trial Tr. Vol. 3, Page ID 1759 (emphasis added). Perez’s counsel made no further mention of a multiple-
conspiracies instruction and later responded “no objection” to the jury instructions as given. DE 269, Trial Tr. Vol.
4, Page ID 1834.

                                                             5
No. 17-1595, United States v. Perez-Martinez


rational trier of fact could find that each defendant “had knowledge of and agreed to participate in

a single, overarching conspiracy,” then there is no variance. United States v. Smith, 320 F.3d 647,

652 (6th Cir. 2003); see also United States v. Lara, 679 F. App’x 392, 394 (6th Cir. 2017).

       Determining whether one or multiple conspiracies existed principally depends on three

factors: “the existence of a common goal, the nature of the scheme, and the overlapping of the

participants in various dealings.” Smith, 320 F.3d at 652. However, “a single conspiracy does not

become multiple conspiracies simply because each member of the conspiracy did not know every

other member, or because each member did not know of or become involved in all of the activities

in furtherance of the conspiracy.” Warner, 690 F.2d at 549. Instead, “[t]o prove a single

conspiracy, the government need only show that each alleged conspirator had knowledge of and

agreed to participate in what he knew to be a collective venture directed toward a common goal.”

Smith, 320 F.3d at 653.

       Here, the indictment alleged a single conspiracy to commit wire fraud by using “devices

that were designed to secretly record account data from credit cards that gas station customers

used,” encoding that data onto fraudulent access devices, and then using those devices to make

purchases. DE 109, First Sup. Indictment, Page ID 406–07. Perez argues that at trial the

government actually presented evidence of several separate conspiracies led by three different

men, as well as a separate, earlier conspiracy to obtain credit-card numbers from the “dark web”

without using skimmers. Viewing the evidence in the light most favorable to the government,

however, a rational juror could conclude that there was a single, overarching conspiracy. See

Smith, 320 F.3d at 652.

       Trial testimony by the four cooperating co-defendants, Falcon, Pupo, Cabrera, and Gregori,

outlined a comprehensive credit-card-fraud scheme headed by Perez. The men all testified that



                                                 6
No. 17-1595, United States v. Perez-Martinez


Perez recruited them to his operation shortly after they moved to the United States. Although

individual participants across trips might have varied, these trips were all taken at Perez’s

direction, using equipment and information supplied by him.6 Thus, their testimony outlining

Perez’s leadership over and involvement in this operation provided ample evidence of a single,

overarching conspiracy.

         Additionally, although the indictment focused on the use of credit-card skimmers, applying

the three variance factors, a rational juror could conclude that the excursions involving credit-card

accounts obtained from the “dark web” were a part of the same conspiracy. See Smith, 320 F.3d

at 652. The government introduced ample evidence that the goal and nature of the scheme was

the same whether the group used the Internet or used skimmers—they sought to obtain credit-card

information, copy the information onto access devices, and use those devices to purchase goods

charged to consumers’ credit-card accounts. Id. Additionally, Perez’s co-defendants testified that

these earlier trips were organized by Perez and undertaken at his instruction. Finally, the

participants in the trips that used credit-card information from the Internet overlapped with the

participants in the trips that used skimmers. Smith, 320 F.3d at 652. For example, Pupo, Falcon,

Cabrera, Gregori, and Mafut participated in the June 2015 Ohio trip, and all besides Pupo also

went on the Michigan trip in June or July 2015 in which the men attempted to code access devices

using credit-card accounts Perez obtained from the Internet. The same co-conspirators—joined

by Perez—traveled to Wisconsin in July 2015 and to McAllen, Texas, in August 2015, at which

time they had graduated to using skimmers. Thus, although the indictment focused on the use of

skimmers, a rational juror could conclude that the trips using credit-card information from the


        6
          Perez claims that the government improperly offered proof of a trip in September 9, 2015, to Grand Rapids,
Michigan, as a part of the alleged overarching conspiracy. The government, however, made clear on multiple
occasions at trial that Perez was not involved in this trip and that this trip did not form the basis of the conspiracy
charge. This trip is the source of the 27 disputed access devices discussed in Perez’s sentencing challenge, infra.

                                                          7
No. 17-1595, United States v. Perez-Martinez


“dark web” were a part of the same overarching conspiracy. Smith, 320 F.3d at 652; Lara, 679 F.

App’x at 394–95 (finding no variance where the indictment alleged a marijuana conspiracy but

evidence was introduced of a heroin conspiracy with “blended” operations and the same “core

personnel” and a “common goal”).

       Perez also claims that the prosecution improperly introduced evidence of the June 2015

Denver-to-Ohio trip, when the indictment alleged a conspiracy “[b]eginning not later than July 24,

2015.” DE 109, First Sup. Indictment, Page ID 406. This “approximate date language,” however,

is “broad enough to reach events” that occurred in the previous month and does not make for a

fatal variance. United States v. Manning, 142 F.3d 336, 340 (6th Cir. 1998) (quoting United States

v. Warner, 82 F.3d 419 (6th Cir. 1996) (unpublished table decision)) (holding that an indictment

alleging a drug conspiracy “on or about September 6” was broad enough to encompass related

events on August 4 of the same year); Warner, 82 F.3d 419 (evidence of conspiracy activities in

April 1993 was not a fatal variance when the indictment charged a drug conspiracy “on or about

May 1993”); see also United States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989) (“When ‘on or

about’ language is used in an indictment, proof of the exact date of an offense is not required as

long as a date reasonably near that named in the indictment is established.”).

       Because the evidence at trial could not “reasonably be construed only as supporting a

finding of multiple conspiracies,” there was no variance from the indictment. Warner, 690 F.2d

at 548. Thus, we do not address whether Perez suffered any prejudice. Lara, 679 F. App’x at 394

(“Only if we find a variance do we then measure the degree of prejudice . . . .”).

                                                B.

       Perez next alleges that the district court erred in allowing the prosecution to introduce his

failure to report to his Texas probation officer as evidence of flight in this case and argues that



                                                 8
No. 17-1595, United States v. Perez-Martinez


instead it should have been excluded under Federal Rule of Evidence 404(b). But the district court

did not abuse its discretion in allowing the prosecution to introduce this flight evidence.

                                                  1.

       This court generally reviews a district court’s evidentiary determinations for abuse of

discretion. See United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). Some panels of this

court, however, have contended that there is “an intra-circuit split regarding the correct standard

of review for a district court’s decision to admit Rule 404(b) evidence.” United States v. Mandoka,

869 F.3d 448, 456 (6th Cir. 2017) (discussing cases); see also United States v. Clay, 677 F.3d 753,

754 (6th Cir. 2012) (Kethledge, J., dissenting from denial of rehearing en banc). This is due to a

line of Sixth Circuit cases that hold there is a three-part inquiry that the court must undertake when

assessing a district court’s admission of 404(b) evidence, rather than simply applying the abuse of

discretion standard to the entire decision reached by the district court. That is,

       we first review for clear error the district court’s factual determination that the
       “other . . . acts” occurred. Second, we examine de novo the district court’s legal
       determination that the evidence was admissible for a legitimate purpose. Finally,
       we review for abuse of discretion the district court’s determination that the
       probative value of the other acts evidence is not substantially outweighed by its
       unfairly prejudicial effect.

United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001) (quoting United States v.

Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996)). In any event, the tripartite framework can be

viewed as a recognition that we are faced with three distinct questions when reviewing the

admission of Rule 404(b) evidence for abuse of discretion. Mandoka, 869 F.3d at 457; see also

United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006).




                                                  9
No. 17-1595, United States v. Perez-Martinez


                                                          2.

         Applying the three-part 404(b) abuse-of-discretion framework, we conclude that the

district court did not abuse its discretion in admitting the flight evidence here.7

                                                          a.

         Under the first step of 404(b) review, we assess the district court’s determination that the

“other acts” occurred for clear error. See Murphy, 241 F.3d at 450. Here, there was sufficient

evidence to show that he fled from the jurisdiction. Perez’s parole officer testified that Perez was

compliant with his supervision reporting requirements from February 2015 until September 21,

2015, but beginning with his appointment scheduled for October 23, 2015, he stopped reporting,

did not answer calls, and could not be located. Perez was not found until August 2016, when he

was arrested re-entering the United States from Canada at Derby Line, Vermont. The district court

therefore did not clearly err in concluding there was sufficient evidence that Perez had been on

probation and that Perez fled Williamson County.

                                                          b.

         Under the next step in the 404(b) analysis, we consider de novo whether the past conduct

evidence “was admissible for a legitimate purpose.” Murphy, 241 F.3d at 450.

         Under Rule 404(b), although “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character,” it may be admissible “for another purpose.” Fed. R. Evid. 404(b).

Here, the evidence that Perez was on probation for an earlier Texas conviction and that he failed

to appear at parole appointments is undoubtedly evidence of a prior crime or wrong; however, the


         7
           While considering 404(b) as a possible basis for excluding the flight evidence is appropriate in this case,
where the alleged flight occurred at a different point in time from the charged offenses, flight evidence is often
analyzed as a part of the offense conduct. See 6th Cir. Crim. PJI 7.14 (treating flight as offense conduct); cf. Farrell
v. United States, 162 F. App’x 419, 422 (6th Cir. 2006) (analyzing flight evidence under 404(b)).

                                                          10
No. 17-1595, United States v. Perez-Martinez


government contends that it was admissible as flight evidence. “Flight evidence comes in as an

admission of guilt by conduct,” and when it “has genuine probative value . . . ‘juries are given the

power to determine how much weight should be given to such evidence,’” meaning such evidence

can be admissible for a legitimate purpose. United States v. Dillon, 870 F.2d 1125, 1126 (6th Cir.

1989) (quoting United States v. Touchstone, 726 F.2d 1116, 1119 (6th Cir. 1984)). Courts have,

however, “consistently doubted the probative value [of flight evidence] in criminal trials.” Id.

(quoting Wong Sun v. United States, 371 U.S. 471, 483 n.10 (1963)). Therefore, to determine

whether the past conduct evidence was admissible for a legitimate purpose, we must ensure that it

has probative value as flight evidence, which involves a four-step analysis. See United States v.

Oliver, 397 F.3d 369, 376 (6th Cir. 2005).

       This four-step analysis of the probative value of flight evidence considers the strength of

four cascading inferences that can be drawn from: (1) “defendant’s behavior to flight”; (2) the

connection between that flight and consciousness of guilt; (3) whether this consciousness of guilt

concerns the crime charged; and (4) whether the defendant’s consciousness of guilt is probative of

whether he actually committed the crime charged. See id; United States v. Atchley, 474 F.3d 840,

853 (6th Cir. 2007). Here, all four inferences are “‘reasonabl[y] support[ed]’ by the evidence.”

Oliver, 397 F.3d at 376 (alterations in original) (quoting Dillon, 870 F.2d at 1127).

       First, although Perez argues that the prosecution only offered “speculation” as its evidence

that he fled the jurisdiction, as discussed, Perez’s parole officer testified that Perez stopped

complying with his supervision reporting requirements after September 2015 and could not be

located until he was later apprehended outside of Texas in August 2016. See United States v.

White, 543 F. App’x 563, 567 (6th Cir. 2013) (failure to appear for hearing on bond revocation

supported finding of flight).



                                                11
No. 17-1595, United States v. Perez-Martinez


         The evidence also supports the inference that Perez’s flight reflected consciousness of guilt,

as his flight coincided with his discovery that the Michigan state case against Falcon and Pupo for

installing skimmers was being taken over by federal authorities. At Perez’s trial, the attorney who

represented Falcon and Pupo in the Michigan case testified that he informed the individual who

had hired him to represent Falcon and Pupo—who evidence indicated was Perez8—in either late

August or early September that “there was a strong likelihood that it would become a federal case.”

DE 268, Trial Tr. Vol. 3, at 1655–56. We have held that “flight may be proven where it occurs

after any event which would tend to spark a sharp impulse of fear of prosecution or conviction in

a guilty mind.” Dillon, 870 F.2d at 1128. And learning that his conspirators’ state case was

morphing into a larger federal investigation would certainly spark such an impulse. See id.

(“[A] guilty defendant is almost as unequivocally put on notice of his peril by a convicted co-

conspirator who is on the verge of testifying . . . about their common crime.”).

         Further, the evidence reasonably supports the conclusion that Perez’s consciousness of

guilt was related to the crimes in this case, as Perez points to no evidence that he was facing other

charges or that he had any other motivation to flee Williamson County unrelated to escaping the

federal investigation. Finally, the testimony by Perez’s four co-defendants at trial that Perez

spearheaded the skimming scheme, as well as forensic evidence from his cell phone and laptop, is

sufficient to support the fourth flight inference here, connecting Perez’s consciousness of guilt to

his actual guilt in this case. See Oliver, 397 F.3d at 376.

         Therefore, because the evidence of Perez’s parolee status, communicated by showing that

he failed to appear at parole appointments, had probative value as flight evidence, it “was


        8
          The attorney testified that the man who hired him referred to himself as “Mafut.” Perez told Falcon in a
recorded jail call that, in calls to the attorney, “mister Mafut, it’s me, you hear me?” DE 277, Appellant Ex. 17, Page
ID 1990–91. Phone records confirm that the call to the attorney came from a number that all four testifying
codefendants testified was Perez’s.

                                                         12
No. 17-1595, United States v. Perez-Martinez


admissible for a legitimate purpose” and satisfies the second prong of the 404(b) inquiry. Murphy,

241 F.3d at 450.

                                                  c.

       Under the third and final step of our 404(b) admissibility determination review, the district

court did not abuse its discretion in concluding that the probative value of the prior-act evidence

was not substantially outweighed by the risk of unfair prejudice. Id.; see Fed. R. Evid. 403. As

outlined, the flight evidence here was probative of Perez’s consciousness of guilt of the fraud

crimes with which he was charged. Flight evidence, however, is considered to have relatively

weak probative value, and here it arguably risked unfairly prejudicing Perez, as it necessitated

informing the jury that Perez was on probation—risking that the jury would punish him for his

prior bad acts instead of for the conduct for which he was on trial. See, e.g., United States v.

Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994). The risk of unfair prejudice attendant to this flight

evidence, however, was mitigated by the fact that evidence of Perez’s prior arrest for credit-card

fraud—the offense for which he was on probation—had already been introduced to the jury as

proof of Perez’s “intent.” Perez does not challenge the admission of his prior arrest and conviction

for this intent purpose in his appeal. Therefore, the risk of unfair prejudice attendant to the flight

evidence is low in light of the fact that his Texas offense was already presented to the jury for

another permissible purpose.      Moreover, the district court limited the extent to which the

government presented evidence of Perez’s probation violation to only that necessary to

demonstrate his flight.

       Indeed, Perez’s primary contention in this appeal is not that he was prejudiced by the

revelation to the jury that he was on, and then violated, probation, but that the flight evidence was

unduly confusing. The district court, however, instructed the jury on proper consideration of the



                                                 13
No. 17-1595, United States v. Perez-Martinez


flight evidence and also instructed them to consider the evidence of Perez’s Texas offense for the

“intent” purpose only. The district court therefore did not abuse its discretion in concluding that

the flight evidence’s probative value was not substantially outweighed by the risk of unfair

prejudice here.

       In conclusion, applying the three-part 404(b) inquiry, the district court did not abuse its

discretion in admitting the flight evidence.

                                                 C.

       Perez next raises two challenges to his sentence. He first claims that the district court erred

in its loss calculation because it incorrectly attributed to him 27 credit-card numbers from a

September 2015 skimming trip in which he was not involved. He also contends that the district

court improperly applied an obstruction of justice enhancement to his sentence. Neither argument

has merit.

                                                 1.

       Perez first challenges the district court’s loss calculation as it relates to his sentence for

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. This court reviews a district

court’s factual findings in sentencing decisions for clear error and its application of a Sentencing

Guidelines provision de novo. E.g., United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).

Here, any error by the district court would be harmless, as it would not change Perez’s base offense

level calculation.

       The applicable guideline for Perez’s 18 U.S.C. § 1349 violation is USSG § 2X1.1, which

instructs that the base offense level for conspiracy is determined using the guideline for the

substantive offense—here, wire fraud, in violation of 18 U.S.C. § 1343. This directs us to USSG

§ 2B1.1, which provides a base offense level of seven for fraud and then calculates any offense



                                                 14
No. 17-1595, United States v. Perez-Martinez


level increases by looking to the loss attributable to the defendant. See USSG § 2B1.1(a)(1), (b)(1).

Here, because there was no known actual loss, the district court used the intended-loss calculation

of $500 per access device provided for in § 2B1.1 Application Note 3. USSG § 2B1.1 cmt.3(F)(i)

(“In a case involving any counterfeit access device or unauthorized access device, loss . . . shall be

not less than $500 per access device.”); see also United States v. Moon, 808 F.3d 1085, 1092 (6th

Cir. 2015). Because the district court determined that there were 687 access devices attributable

to Perez—including the 27 fraudulent credit cards confiscated from Perez’s co-defendants during

their September 9, 2015, arrest—the district court calculated the total loss at $343,500. This

resulted in a 12-level base offense level increase, as Perez’s loss calculation was more than

$250,000 but less than $550,000. See USSG § 2B1.1(b)(1)(G)–(H).

       Perez argues that the 27 devices from the September 9 trip should not have been attributed

to him because there was no evidence that this trip was a part of his jointly undertaken criminal

activity. See USSG § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)).

He objected to these devices’ inclusion at sentencing, arguing that “the evidence at trial revealed

this trip was orchestrated and directed by Mr. Sanchez-Pupo, and not the defendant.” CA6 R. 8,

PSR Obj., at 38–39. The government took “no position on Defendant’s objection regarding the

27 Sept[ember] 2015 access devices because their inclusion or exclusion would have no effect on

the PSR’s recommended Guideline calculation” and acknowledged that it had “made a tactical

decision at trial not to try and persuade the jury that the September trip was done at Defendant’s

direction.” DE 257, Gov’t Resp., Page ID 1328–29 (n.1). The district court ultimately concluded

that these devices fell within Perez’s relevant conduct.

       As Perez acknowledges, even if the district court had not attributed the 27 devices to him,

it would not change his base offense level calculation. Without these 27 devices, the loss



                                                 15
No. 17-1595, United States v. Perez-Martinez


calculation would still lead to a base offense level increase of 12 under USSG § 2B1.1(b)(1)(G),

as the total loss based on 660 access devices would be $330,000. The district court acknowledged

this during sentencing and observed that, even though it overruled Perez’s objection, “it doesn’t

have a guideline impact.” DE 272, Sent. Hr’g Tr., Page ID 1941. Accordingly, even if the district

court did err in attributing the devices to Perez as part of his relevant conduct, any error would be

harmless, and resentencing on this ground would not be necessary.9 See United States v. Lanesky,

494 F.3d 558, 561 (6th Cir. 2007) (remand not required if the government can demonstrate “with

certainty that the error at sentencing did not cause the defendant to receive a more severe sentence”

(quoting United States v. Johnson, 467 F.3d 559, 564 (6th Cir. 2006))); see also United States v.

Mizori, 601 F. App’x 425, 431–32 (6th Cir. 2015) (harmless error when miscalculation of

guidelines range resulted in same statutory maximum sentence and the district court indicated it

would have given the same sentence “even if [it] had sustained the objections”).

                                                        2.

        Perez next argues that the district court incorrectly applied the obstruction of justice

enhancement, USSG § 3C1.1, to his sentence.                  At sentencing, the government must prove

obstruction by a preponderance of the evidence, United States v. Dunham, 295 F.3d 605, 609 (6th

Cir. 2002), and this court reviews the district court’s factual findings for clear error and its

conclusion that the facts constitute obstruction of justice de novo. See United States v. Henry, 819

F.3d 856, 872 (6th Cir. 2016); United States v. Huntley, 530 F. App’x 454, 457 (6th Cir. 2013).

We hold that the district court correctly applied the obstruction enhancement here.




         9
           Perez concludes his argument by stating he should be resentenced because “[m]any of the credit card
numbers that were attributed to Perez overall were duplicates or had no name on the account, suggesting they were
not authentic.” CA6 R. 21, Appellant Br., at 57. Perez provides no factual or legal support for this claim, and,
moreover, the Presentence Report expressly accounted for any duplication of numbers in tallying the total number of
access devices attributable to Perez.

                                                        16
No. 17-1595, United States v. Perez-Martinez


       USSG § 3C1.1 requires a defendant’s offense level to be increased by two levels if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration

of justice with respect to the investigation, prosecution, or sentencing of the instant offense of

conviction.” USSG § 3C1.1. Advisory Note 4 then provides a “non-exhaustive list of examples

of the type of conduct” qualifying as obstruction, including “threatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do

so.” USSG § 3C1.1 cmt.4(A).

       Here, the district court determined that the obstruction enhancement was applicable after

finding that Perez communicated a threat to Gregori, who was testifying as a witness in this case,

through Jose Gallegos—a defendant in an unrelated case whom Perez encountered while he was

in U.S. Marshal Service custody pending trial. Gallegos testified that, after learning Gallegos was

housed with witnesses Cabrera and Gregori, Perez told him that “he was very disappointed in these

other guys, that they were very ungrateful, and they actually was [sic] going to hear from him after

this was settled down.” DE 269, Trial Tr. Vol. 4, Page ID 1785. Gallegos also testified that Perez

asked him to convey to Gregori that Gregori “was going to be hurt after this being [sic] settled

down.” Id. The government produced a U.S. Marshal Service record confirming that Gallegos

and Perez had been transported to court together in the same van.

       Perez argues on appeal that the obstruction enhancement should not apply because he did

not make a “substantial step” toward obstruction of justice because he “did not ask Gallegos to

convey any message to Gregori.” CA6 R. 21, Appellant Br., at 59. That claim, however, is directly

contradicted by Gallegos’s trial testimony that Perez “f[ound] out that [Gallegos] was in a housing

unit with two other Cubans, and he actually told [Gallegos] to deliver a message to them” and that

Perez further “ask[ed] [him] to convey” that Gregori would get hurt after this “settled down.”



                                                 17
No. 17-1595, United States v. Perez-Martinez


DE 269, Trial Tr. Vol. 4, Page ID 1784–85. Perez’s contention that he was just “venting” and “not

asking for a message to be relayed” is further undermined by the fact that Gallegos actually

conveyed the message to Gregori, who testified that he received the message and that he “took it

as a threat.” Id. at 1795–96; CA6 R. 21, Appellant Br., at 59.

       Perez further argues that his conduct should not be considered obstruction because he did

not make this statement directly to the witness who was expected to testify; however, we have

recognized that “[a] defendant has obstructed justice when his ‘statements can be reasonably

construed as a threat, even if they are not made directly to the threatened person.’” United States

v. Kamper, 748 F.3d 728, 744 (6th Cir. 2014) (quoting United States v. Jackson, 974 F.2d 104,

105 (9th Cir. 1992)).

       The district court therefore did not err in concluding that Perez’s threats amounted to an

intentional attempt to obstruct justice, and it correctly applied the obstruction enhancement.

                                                III.

       For the reasons stated, we affirm the district court and uphold Perez’s convictions and

sentence.




                                                18
No. 17-1595, United States v. Perez-Martinez


       KAREN NELSON MOORE, Circuit Judge, concurring. I agree with the majority’s

opinion, but write separately with respect to Part II.A to address specifically the government’s

argument about the appropriate standard of review.

       Defense counsel raised the material-variance issue before the district court in a discussion

regarding a multiple-conspiracies jury instruction, alternatively indicating that she was concerned

about the issue and that she did not think that there was a material-variance problem. R. 268 (Trial

Tr. Vol. 3 at 137–38) (Page ID #1759–60). In its briefing, the government suggested defense

counsel’s discussion of the issue with the district court entirely precluded appellate review of

Perez’s material-variance argument. Appellee Br. at 41. This is incorrect. At a minimum, we

review for plain error if the defendant raises a material-variance argument for the first time on

appeal. United States v. Soto, 794 F.3d 635, 658 (6th Cir. 2015). And, here, Perez’s argument

fails under both plain-error review and de novo review—the standard applied if the defendant

properly raises the issue of variance before the trial court. Id.




                                                  19
