                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11026                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             OCTOBER 28, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket No. 1:08-cr-20840-JEM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

DOMINGO ANTONIO BATISTA FLORIAN,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (October 28, 2010)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

         Domingo Batista Florian appeals his sentence of imprisonment for 30

months and convictions for making a false statement in his application for a
passport, 18 U.S.C. § 1542, falsely representing himself to be a citizen of the

United States, id. § 911, and aggravated identity theft, id. § 1028A(a)(1). Batista

Florian challenges the admission of evidence of a prior conviction and the

procedural reasonableness of his sentence. We affirm.

      Batista Florian argues that evidence of his prior conviction for

impersonating a citizen of the United States was inadmissible under Federal Rule

of Evidence 404(b), but we disagree. Batista Florian was charged with stealing

the identity of Jose Ramon Colon Rios and using Rios’s identity documents to

apply for a passport. At trial, the government read to the jury a stipulation that

Batista Florian had been convicted for falsely impersonating Kelvin Jose Perez-

Perez after paying $5000 to acquire Perez-Perez’s birth certificate and using it to

obtain an identity card from the State of California. That Batista Florian had acted

similarly on another occasion by purchasing and using identity documents that he

knew belonged to a real person is relevant both to his knowledge that Rios’s

identity was authentic and to his intent to misrepresent himself as Rios. See Fed.

R. Evid. 404(b); United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005).

The district court instructed the jury on three occasions that the evidence could be

used only to determine whether Batista Florian “had the state of mind or intent

necessary to commit the crime charged in the indictment or [he] acted according to

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a plan or in preparation for commission of a crime.” See United States v. McNair,

605 F.3d 1152, 1204–05 (11th Cir. 2010). The district court did not abuse its

discretion by admitting evidence of Batista Florian’s prior conviction.

      Batista Florian also argues that his sentence is procedurally unreasonable

because he should have received credit for the time he spent in the custody of

Immigration and Customs Enforcement officials, but this argument fails.

“Authority to calculate credit for time served under section 3585(b) is vested in

the Attorney General, not the sentencing court.” United States v. Alexander, 609

F.3d 1250, 1259 (11th Cir. 2010). Batista Florian argues that the district court

concluded that it lacked authority to consider his prior custody in fashioning a

reasonable sentence, but the district court discussed the matter with the parties and

then denied Batista Florian’s request for a downward variance to 25 months of

imprisonment. See 18 U.S.C. § 3553(a). The district court did not commit a

procedural error in sentencing Batista Florian.

      We AFFIRM Batista Florian’s convictions and sentence.




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