                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 10-15780              SEP 07, 2011
                                                                       JOHN LEY
                                        Non-Argument Calendar            CLERK
                                      ________________________

                               D.C. Docket No. 1:10-cr-20252-JAL-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                          lPlaintiff - Appellee,

    versus

ANTONIO BRADSHAW,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                           (September 7, 2011)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Antonio Bradshaw appeals his convictions for credit card fraud, in violation

of 18 U.S.C. § 1029(a)(2) (“Count 1”), and two counts of aggravated identity theft,
in violation of 18 U.S.C. § 1028A(a)(1) (“Counts 2 and 3”), and his 72-month

sentence.1 He presents three arguments for our consideration. After review of the

parties’ briefs and the record, we affirm.

                                               I.

       Bradshaw first claims that the district court abused its discretion by

admitting evidence of previous fraud convictions under Federal Rule of Evidence

404(b). Immediately after the court entered the convictions into evidence—over

Bradshaw’s objection—the court instructed the jury that the previous convictions

could be used to determine whether Bradshaw “had the state of mind or intent

necessary to commit the crimes charged” or to help establish “the identity of

[Bradshaw] . . . as the perpetrator of the crime charged in the indictment.”

Bradshaw contends that the district court erred in allowing the jury to consider his

previous convictions for purposes of establishing identity because the earlier

crimes lacked sufficient distinctive characteristics to establish a modus operandi.

Moreover, the instant offenses shared no characteristics with his previous

transgressions outside of the fact that each involved fraud. Bradshaw also asserts


       1
           Two different courses of conduct were the focus of Bradshaw’s indictment and trial.
First, the government alleged that in August 2005, Bradshaw opened a credit card in another
individual’s (“Victim 1”) name. Second, approximately 2 months later, Bradshaw accessed an
unknowing couple’s (“Victim 2 and Victim 3”) line of credit through an “authorized user” credit
card that had been issued in his name. The latter is known as an account “take over.”

                                               2
that the other evidence offered at trial was not sufficient to render the district

court’s error harmless.

      We review a district court’s decision to admit evidence pursuant to

Rule 404(b) for an abuse of discretion. United States v. Brown, 587 F.3d 1082,

1091 (11th Cir. 2009). Rule 404(b) states:

             Evidence of other crimes, wrongs, or acts is not admissible
             to prove the character of a person in order to show action
             in conformity therewith. It may, however, be admissible
             for other purposes, such as proof of motive, opportunity,
             intent, preparation, plan, knowledge, identity, or absence
             of mistake or accident . . . .

When determining whether extrinsic-offense evidence may be introduced to prove

identity, the likeness of the prior and charged offenses is the “crucial

consideration.” United States v. Phaknikone, 605 F.3d 1099, 1108 (11th Cir.

2010). “The physical similarity must be such that it marks the offenses as the

handiwork of the accused. In other words, the evidence must demonstrate a modus

operandi,” otherwise the evidence is inadmissible under Rule 404(b) as proof of

identity. See id. We review preserved evidentiary objections for harmless error.

United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). The government

bears the burden of establishing that an error is harmless. Phaknikone, 605 F.3d

at 1109. “Reversal is warranted only if the error resulted in actual prejudice



                                           3
because it had substantial and injurious effect or influence in determining the

jury’s verdict.” Id. (internal quotation marks omitted). We may consider the

presence of overwhelming evidence of guilt as a factor in determining that an error

is harmless. Id.

      For purposes of resolving this appeal, we assume that the district court erred

by initially allowing the jury to consider Bradshaw’s previous convictions to

establish identity for the instant offenses. However, such an error does not

warrant reversal of his convictions because there was overwhelming evidence

apart from these convictions to establish Bradshaw’s identity as the perpetrator of

the charged offenses; thus any error in admitting the previous convictions was

harmless.

      Bradshaw states that his “defense at trial was that the government failed to

prove he was the person who fraudulently possessed and used” the credit cards at

issue. The government introduced ample evidence to directly refute that. For

example, as to the credit card obtained in Victim 1’s name, the government

submitted the following evidence to demonstrate that Bradshaw committed credit

card fraud: (1) a credit card was opened under the victim’s name and shipped to

Bradshaw’s Florida address; (2) Bradshaw’s first name was the password for the

online application for the account; (3) the owner of a pawn shop identified

                                         4
Bradshaw as the individual who pawned several items and then bought them back

using the fraudulently obtained credit card. Furthermore, “Antonio Bradshaw”

was added as an authorized user of Victim 2 and 3’s credit line after a phone call

that originated from a number that fraud investigators traced to Bradshaw. The

record also contains testimony from a number of merchants who implicated

Bradshaw in using both credit cards.2 After consideration of the record evidence,

it is clear that, even without the previous convictions, the government produced

overwhelming evidence of Bradshaw’s guilt. Accordingly, even if there was error,

it was harmless.

                                               II.

       Bradshaw next argues that the district court should have granted his motion

for judgment of acquittal on the aggravated identity theft charges. Specifically, he

claims that the government failed to establish that he knew he had used

identification that belonged to an actual person.

       “[A defendant’s] conviction must be upheld if any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. We

       2
         Two additional facts minimize any potential for injurious effect. First, the government
never argued, to the court or the jury, that the previous convictions should be considered for
purposes of establishing identity. More importantly, during jury instructions, the district court
properly directed the jury to consider the previous convictions only in determining whether
Bradshaw possessed the necessary intent to commit the crimes. That mitigated the initially
erroneous statement that the jury could consider the previous convictions for identity purposes.

                                                5
view the evidence in the light most favorable to the government, with all

reasonable inferences and credibility choices made in the government’s favor.”

United States v. Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010) (citations

omitted) (internal quotation marks omitted).

        “To prove a violation of 18 U.S.C. § 1028A, the evidence must establish

‘that the defendant: (1) knowingly transferred, possessed, or used; (2) the means of

identification of another person; (3) without lawful authority; (4) during and in

relation to a felony enumerated in § 1028A(c).’” United States v. Barrington, __

F.3d __, No. 09-15295, slip op. at 24 (11th Cir. August 11, 2011) (footnote

omitted) (quoting United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007)

(per curiam)). Therefore, the government must demonstrate that the defendant

knew that the misused identification belonged to an actual person. Flores-

Figueroa v. United States, 129 S. Ct. 1886, 1894 (2009). That knowledge may be

proven with circumstantial evidence. Gomez-Castro, 605 F.3d at 1249. “Both the

circumstances in which an offender obtained a victim’s identity and the offender’s

later misuse of that identity can shed light on the offender’s knowledge about that

identity.” Id. at 1248.

      The government provided sufficient evidence to demonstrate that Bradshaw

possessed the requisite knowledge to commit aggravated identity theft both by

                                          6
opening a new credit card account and “taking over” an existing credit card

account. In the “take over” circumstance, Bradshaw knew that the account could

only exist if it were connected to an actual individual. Significant circumstantial

evidence also demonstrates that Bradshaw was aware that information used to

open the new credit card was connected to an actual person. First, Victim 1

testified that the application submitted contained his correct name, birthday, and

social security number. Also, a reasonable jury could infer that Bradshaw would

not have sought credit using Victim 1’s identification if he did not believe it to be

connected to an individual with an actual credit history. See United States v.

Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (per curiam). Moreover, a Chase

official testified that a fictitious identity could not be used to secure a line of

credit. Even without that testimony, a jury, based on ordinary human experience,

could quite easily conclude that credit card companies subject applications to a

screener process before subjecting themselves to the risks of extending credit. Cf.

Gomez-Castro, 605 F.3d at 1249 (explaining that a jury’s everyday experience

would allow them to conclude that governments verify an applicants identity prior

to issuing documents). Based on that evidence, a jury could determine that

Bradshaw knew the identifying information he used to obtain a credit card in

Victim 1’s name was connected to an actual individual. Therefore, we conclude

                                            7
that reasonable jurors could have found that Bradshaw knew the identities he used

were connected with actual people.

                                              III.

       Finally, Bradshaw argues that the district court abused its discretion by

failing to consider the relevant commentary to the Sentencing Guidelines prior to

imposing two partially consecutive sentences for his aggravated identity theft

convictions. He points out that the Guidelines set out several factors that must be

considered before imposing sentences for multiple counts of conviction, U.S.S.G.

§ 5G1.2, and the district court failed to reference each of those factors during

sentencing. Bradshaw, however, did not raise this objection to the district court.3

       Pursuant to§ 1028A, a defendant convicted of aggravated identity theft is

required to serve a two-year term of imprisonment consecutive to any other

sentence imposed. If a defendant has multiple convictions under § 1028A, the

district court has discretion to determine whether these sentences should run

concurrently with each other. U.S.S.G. § 2B1.6 cmt. n.1(B); see also

§ 1028A(b)(4). This commentary directs the court to consult the commentary to




       3
         Sentencing arguments raised for the first time on appeal, such as Bradshaw’s, are
reviewed for plain error. United States v. Bonilla, 579 F.3d 1233, 1238–39 (11th Cir. 2009), cert
denied, 130 S. Ct. 2361 (2010).

                                                8
U.S.S.G. § 5G1.2 for guidance in making that determination. U.S.S.G. § 2B1.6

cmt. n.1(B). It provides:

            In determining whether multiple counts of 18 U.S.C.
            1028A should run concurrently with, or consecutively to,
            each other, the court should consider the following
            non-exhaustive list of factors:

            (i) The nature and seriousness of the underlying offenses.
            For example, the court should consider the
            appropriateness of imposing consecutive, or partially
            consecutive, terms of imprisonment for multiple counts
            of 18 U.S.C. 1028A in a case in which an underlying
            offense for one of the 18 U.S.C. 1028A offenses is a
            crime of violence or an offense enumerated in 18 U.S.C.
            2332b(g)(5)(B).

            (ii) Whether the underlying offenses are groupable under
            § 3D1.2 (Groups of Closely Related Counts). Generally,
            multiple counts of 18 U.S.C. 1028A should run
            concurrently with one another in cases in which the
            underlying offenses are groupable under § 3D1.2.

            (iii) Whether the purposes of sentencing set forth in 18
            U.S.C. 3553(a)(2) are better achieved by imposing a
            concurrent or a consecutive sentence for multiple counts
            of 18 U.S.C. 1028A.

U.S.S.G. § 5G1.2, cmt. n.2(B).

      Here, while the district court did not explicitly mention the specific

Guidelines commentary that provides the analysis for determining whether

multiple aggravated felony convictions warrant concurrent or consecutive



                                          9
sentences, that omission does not constitute plain error. First, Bradshaw points to

no binding precedent that requires the district court to explicitly discuss the list of

non-exhaustive factors present in comments to U.S.S.G. § 5G1.2. Second, the

transcript reveals that the district court did consider the nature and seriousness of

the underlying offenses, and it explicitly discussed the § 3553(a) factors.

Therefore, it clearly considered two of the three factors in the comments to

U.S.S.G. § 5G1.2. Accordingly, we conclude that the district court did not plainly

err in applying partially consecutive sentences for the two separate § 1028A

convictions.

                                          IV.

      For the foregoing reasons, we affirm.

      AFFIRMED.




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