                                                               [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-13532         ELEVENTH CIRCUIT
                                                            SEPTEMBER 22, 2011
                                   Non-Argument Calendar
                                                                 JOHN LEY
                                 ________________________
                                                                  CLERK

                            D.C. Docket No. 1:10-cr-20169-KMM-2

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                            versus

YUDEISY LOPEZ,

lllllllllllllllllllll                                              Defendant-Appellant.
                                ________________________

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

                                     (September 22, 2011)

Before TJOFLAT, CARNES, and FAY, Circuit Judges.

PER CURIAM:

         Yudeisy Lopez appeals her convictions and sentences for: (1) conspiracy to

possess access device-making equipment, in violation of 18 U.S.C. § 1029(b)(2);

(2) possession of access device-making equipment, in violation of 18 U.S.C.
§ 1029(a)(4); and (3) aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). First, she contends that the district court deprived her of her right

to an impartial jury when it denied her requests to strike two jurors from the panel

for cause and when it refused to grant her additional peremptory challenges.

Second, she contends that the district court erred in denying her motion to

suppress evidence seized during a search of her car because her consent was

involuntary. Third, she contends that the court erred in denying her request for a

minimal or minor role sentence reduction because there was no evidence that she

installed or possessed access device-making equipment or had any knowledge of

the volume of fraudulently obtained credit card information possessed by her co-

conspirators. And fourth, she contends that her 90-month total sentence is

substantively unreasonable.

                                              I.

       In 2009 Ariel Pelier, Lopez’s live-in boyfriend, was arrested for illegally

possessing access device-making equipment, which is also known as “skimming”

equipment and is used to steal credit, bank, or debit card information.1 The United

States Secret Service later began surveillance of Pelier. In late February and early



       1
          “Skimming” refers to the unauthorized retrieval of magnetic numbers from the magnetic
strip of a credit, bank, or debit card in order to re-use them on another card.

                                               2
March 2010, Secret Service agents tracked Pelier, Lopez, and another suspect,

Matos Pinon, as they drove through several southeastern states, installing and

removing skimming and other equipment from ATMs. Although Lopez never

handled the equipment during the trip, she was present and a bank camera

recorded her illegally withdrawing funds from a Wachovia bank account. Agents

arrested all three of them in Florida.

      At their Miami field office, agents questioned the three separately. Pelier

cooperated with the agents, giving them consent to search his truck and home

where agents discovered evidence, including more than 3,800 credit card numbers.

Lopez was read her Miranda rights, and agents searched her car, which was

located at the home she shared with Pelier. In her car agents discovered

incriminating evidence related to the conspiracy, including credit card track data,

which is the information encoded on the card’s magnetic strip to identify valid

credit cards. A grand jury indicted Lopez and the others on the three charges

related to the skimming conspiracy. Pelier pleaded guilty. Lopez was tried with

Pinon.

      Before the trial began Lopez moved to strike two potential jurors for cause

because they stated during voir dire that they had been the victims of crimes, and

one of them had been an identity theft victim. Both jurors attested that the earlier

                                          3
incidents would not affect their decision in Lopez’s case, and the district court

denied Lopez’s request to remove them for cause. Lopez had no peremptory

challenges left to exclude them.

      During the trial Lopez moved to suppress the evidence agents seized from

her car, arguing that she either did not consent to the search or that if she did, her

consent was not voluntarily given. Out of the presence of the jury, the district

court held a suppression hearing and denied the motion. The only witness to

testify at that hearing, a federal agent, testified that Lopez did verbally consent,

but that she refused to sign the written consent form.

      The jury found Lopez guilty on all three charges, and the district court

entered judgment on the verdict. The presentence investigation report set Lopez’s

base offense level at 6. The PSI recommended and the district court imposed a 16-

level enhancement because she was responsible for a loss greater than $1 million

but less than $2.5 million. Because of her role in the conspiracy, she was liable

for the conduct of her co-conspirators, making her accountable for $1.9 million in

losses, calculated based on multiplying the $500 statutory offense loss minimum

by 3,899, the total amount of credit card numbers seized. She received another

two-level enhancement for relocating their fraudulent scheme to another

jurisdiction in order to evade law enforcement and another two levels were added

                                           4
for obstructing justice. The district court calculated her guidelines range as 63 to

78 months, and it sentenced her to 66 months. The sentence for the aggravated

identity theft conviction was 24 months, the statutory maximum which is required

to be imposed consecutively, see 18 U.S.C. § 1028A(a)(1), making her total

sentence 90 months.

                                          II.

      First, Lopez contends that the district court violated her Sixth Amendment

right to an impartial jury by denying her request to disqualify two purportedly

biased jurors and for refusing to grant her additional peremptory challenges. We

review both of these rulings only for abuse of discretion. See United States v.

Hurley, 746 F.2d 725, 727 (11th Cir. 1984); United States v. Romero, 780 F.2d

981, 984 (11th Cir. 1986). “[T]he party challenging . . . a refusal [to strike a juror

for bias] must demonstrate that the juror in question exhibited actual bias: That is,

either an express admission of bias, or proof of specific facts showing such a close

connection to the circumstances of the case that bias must be presumed.” Id. A

juror’s general knowledge or personal experience with a particular criminal act by

itself is not enough to establish a bias against a particular defendant. See United

States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983).




                                           5
       Lopez argues that juror Kasey Smith should have been disqualified because

he admitted during voir dire that he had been the victim of identity theft more than

ten years ago. Lopez argues that juror Marjorie Davidson should have been

disqualified because she was a burglary victim who was unhappy with the fact that

the juvenile burglars were not prosecuted.2 However, being a victim of criminal

acts did not disqualify them from serving. See Tegzes, 715 F.2d at 507. Both

Smith and Davidson stated that their earlier experiences with crime would not

affect their decision in Lopez’s case. “The jurors . . . took their oath, and absent

evidence to the contrary, we must presume that they were fair and impartial, as

indeed they swore to be.” United States v. Khoury, 901 F.2d 948, 955 (11th Cir.

1990). Lopez did not present any evidence to the contrary.

       Lopez also argues that the district court erred by not granting her additional

peremptory challenges so that she could strike Smith and Davidson. In

non-capital felony cases, the government is entitled to six peremptory challenges,

and the defense, whether a single defendant or multiple codefendants, is entitled to

ten. Fed.R.Crim.P. 24(b)(2). The rule states, however, that in a case such as


       2
         Lopez also objects to Davidson because she served on a grand jury fifteen years ago.
However, Lopez failed to fully brief or argue how that 15-year-old grand jury service would
disqualify Davidson from serving in Lopez’s trial. As such, she has waived that argument. See
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (“If an argument is not fully
briefed . . ., evaluating its merits would be improper . . . .”).

                                              6
Lopez’s which included multiple defendants, a “court may allow additional

peremptory challenges.” Fed.R.Crim.P. 24(b) (emphasis added). Despite that

rule’s language placing the trial court’s decision to deny additional peremptory

challenges entirely within its discretion, Lopez seeks to turn the “may” language

into a “must.” The district court is given discretion about whether to allow

additional peremptory challenges, and Lopez has failed to show that it abused its

discretion here. See United States v. Bryant, 671 F.2d 450, 455 (11th Cir. 1982)

(noting the district court’s “wide discretion” in “regulating the exercise of

peremptory challenges”).

                                          III.

      Second, Lopez contends that the district court erred by denying her motion

to suppress evidence from the warrantless search of her car. She argues that her

consent to the agents’ search of her car was not freely and voluntarily given, and

that she “merely acquiesced to a show of authority.”

      Because the voluntariness of consent is a question of fact, we will not

disturb a district court’s finding on that issue unless it was clearly erroneous.

United States v. Zapata, 180 F.3d 1237, 1240–41 (11th Cir. 1999). “We accord

great deference to the district court's credibility determinations.” United States v.

Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999); see also United States v. Izquierdo,

                                           7
448 F.3d 1269, 1278 (11th Cir. 2006) (observing the deference and “due regard”

given to the district court’s assessment of a witness’s credibility (quotation marks

omitted)) .

       The only witness to testify on this issue was a Secret Service agent who said

Lopez gave oral consent for agents to search her vehicle. Although Lopez argued

to the district court that her consent was not voluntary, she offered no evidence of

that, giving the district court no reason to discredit the agent’s testimony. The

district court did not clearly err.

                                         IV.

       Third, Lopez contends that the district court erred in not adjusting her

sentence downward to account for her purported minor role in the criminal

conspiracy. Lopez argues that agents found just 39 credit card numbers in her

possession out of the more than 3,800 seized during the investigation. Moreover,

Lopez argues that the government failed to prove that she participated in all (or

most of the more egregious) activities of the conspiracy, such as placing the

skimming devices on ATM machines or encoding credit cards on a computer.

       A district court’s determination of whether a defendant qualifies for a role

adjustment is a finding of fact that we review only for clear error. United States v.

De Varon, 175 F.3d 930, 934, 946 (11th Cir. 1999) (en banc). Where there is

                                          8
“ample evidence in the record to support [the district court’s] determination that

the defendant did not play a minor role in the offense,” we are unlikely to find

clear error. See id.

      The government presented evidence that Lopez unlawfully withdrew funds

more than once, and that she was present when one co-conspirator installed

skimming devices on ATMs, and that she willfully participated in the conspiracy

over an extended period of time, as opposed to a single isolated incident, and that

she benefitted from the proceeds of the conspiracy. The district court did not

clearly err in its conclusion that Lopez’s conduct was not minimal or minor. See

De Varon, 175 F.3d at 944 (“Simply put, a defendant is not automatically entitled

to a minor role adjustment merely because she was somewhat less culpable than

the other discernable participants.”).

                                         IV.

      Fourth, Lopez argues that her 90-month sentence was substantively

unreasonable and failed to comply with the purposes of sentencing as provided in

18 U.S.C. § 3553(a). We review only for abuse of discretion the substantive

reasonableness of a sentence. United States v. Tome, 611 F.3d 1371, 1378 (11th

Cir. 2010). To determine if a sentence is substantively unreasonable, “we must, as

the Supreme Court has instructed us, consider the totality of the facts and

                                          9
circumstances.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010).

“[O]rdinarily we . . . expect a sentence within the Guidelines range to be

reasonable.” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). We will

vacate a sentence for substantive unreasonableness “if, but only if, we are left with

the definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” Irey,

612 F.3d at 1190 (quotation marks omitted). “The party challenging the sentence

bears the burden to show it is unreasonable in light of the record and the § 3553(a)

factors.” Tome, 611 F.3d at 1378.

      Lopez’s total sentence was not unreasonable. First, her 24-month sentence

on Count 3 was mandatory under the statute, which also required it to be

consecutive. See 18 U.S.C. § 1028A(a)(1). Lopez wanted to be sentenced at the

lower end of the guidelines range, and her 66-month sentence for Counts 1 and 2

was near the lower end of the applicable guidelines range. In addition, that 66-

month sentence was well below her statutory maximum for Counts 1 and 2. See

18 U.S.C. § 1029(a)(4) (maximum sentence of 15 years); 18 U.S.C. § 1029(b)(2)

(maximum sentence of 7.5 years).




                                          10
      As district court found, the evidence of Lopez’s culpability over a sustained

period of time was “overwhelming.” The district court also concluded that Lopez:

(1) benefitted from the proceeds of the crime; (2) was responsible for the

reasonably foreseeable acts of her co-conspirators; and (3) was likewise

responsible for losses that resulted from 3,899 illegally obtained credit card

numbers. Moreover, Lopez admitted that she withdrew funds more than once.

The district court did not abuse its discretion in imposing the 90-month sentence.

                                         V.

      Although neither Lopez nor the government addresses the fact that there is a

typographical error in the judgment of conviction, we raise sua sponte the issue

and remand with instructions to correct the error. See United States v. Massey,

443 F.3d 814, 822 (11th Cir. 2006) (“[I]t is fundamental error for a court to enter a

judgment of conviction against a defendant who has not been charged, tried, or

found guilty of the crime recited in the judgment.” (quotation marks and citation

omitted)).

      The judgment in this case indicates that the conviction for Count 3 was for a

violation of 18 U.S.C. § 1028(a)(1). However, a review of the indictment, jury

instructions, and sentence hearing transcript indicates that Lopez’s conviction on

Count 3 was actually for a violation of 18 U.S.C. § 1028A(a)(1). Accordingly, we

                                         11
affirm Lopez’s convictions and sentence but vacate and remand for the limited

purpose of correcting the clerical error in the judgment with respect to Count 3.

See Massey, 443 F.3d at 822.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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