United States v. Acevedo
| Decision Date | 27 May 2021 |
| Docket Number | No. 19-12208,19-12208 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JORGE ACEVEDO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 0:18-cr-60309-WJZ-1
Appeal from the United States District Court for the Southern District of Florida
Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.
A jury convicted Jorge Acevedo of possessing 15 or more unauthorized access devices, possessing access device-making equipment, and aggravated identity theft. Following his convictions, the district court imposed a sentence of 45 months' imprisonment. Acevedo appeals his convictions and his resulting sentence, arguing that the district court erred in admitting evidence of his prior uncharged conduct at trial, denying his motion for judgment of acquittal, and calculating the loss amount for which it held him accountable at sentencing. Acevedo also argues that his sentence is substantively unreasonable. After careful review, we affirm.
Acevedo was indicted and charged with two counts of possessing 15 or more unauthorized access devices,1 in violation of 18 U.S.C. § 1029(a)(3) (Counts One and Three); two counts of possessing access device-making equipment,2 in violation of 18 U.S.C. § 1029(a)(4) (Counts Two and Four); and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a) (Counts Five and Six). Specifically, the indictment alleged that on two occasions, Acevedo used a credit card skimming device to obtain more than 15 credit and debit card accountnumbers issued to other people. The underlying criminal complaint alleged that on both occasions Acevedo had installed a credit card skimmer in a gas pump at a Chevron gas station in Coral Springs, Florida. After a three-day trial, a jury found Acevedo guilty on all counts. We begin by summarizing the evidence adduced at trial, including the evidence introduced under Federal Rule of Evidence 404(b). We then review the post-conviction proceedings.
Before Acevedo's trial began, the government announced its intent to introduce evidence under Federal Rule of Evidence 404(b) of two prior uncharged incidents where Acevedo allegedly installed or attempted to install credit card skimmers in gas pumps. The government sought to introduce this evidence to prove Acevedo's identity, modus operandi, knowledge, motive, intent, and lack of mistake. As to the first incident, the government alleged that police found a skimmer in a gas pump at a Valero gas station ("Valero station") in Coral Springs. The pump's protective seal had been tampered with and Acevedo's fingerprint was later found on the seal. The second incident occurred about six months later; a gas station attendant observed a man attempting to open a pump at a Chevron gas station ("Chevron station"), which was across the street from the Valero station. When the witness told the man to stop, he got into a van and left. The police didnot find a skimmer in the pump, but they investigated the van's tag number and found that Acevedo was one of its authorized drivers. The witness then identified Acevedo as the man he saw trying to open the gas pump.
Acevedo objected to the admission of this evidence, arguing that the government had not established a proper purpose for admitting it, that it was unduly prejudicial, and that it was not inextricably intertwined with the charged conduct.
The district court reserved ruling on whether to admit the proffered 404(b) evidence until after the government presented its case in chief. After hearing government's case, the court, over Acevedo's objection, allowed the government to introduce the 404(b) evidence. The court concluded that the prior uncharged conduct was being offered to establish Acevedo's identity and modus operandi and that the jury could find by a preponderance of the evidence that Acevedo had committed the conduct. The court also determined that the probative value of this evidence was not substantially outweighed by undue prejudice to Acevedo and that the acts were not so remote in time as to be no longer probative or relevant.
The government presented the following evidence at trial. Ana Ribeiro, a former manager at the Chevron station, testified that one day a customer complained that someone had "skimmed" his credit card while he was at the gasstation. Doc. 73 at 114.3 In response, Ribeiro went to check the gas pump; she observed that the seal on the pump had been broken and when she opened the pump, she saw a skimmer inside. Ribeiro then called the police. A crime scene technician who responded to Ribeiro's call testified that she lifted a latent fingerprint from the skimmer, and a fingerprint examiner testified that the print matched Acevedo's fingerprint.
Roberto Rodriguez, a gas station repairperson, testified that about six weeks after the first skimmer was discovered, another skimmer was found at the Chevron station inside a gas pump. A second crime scene technician testified that she lifted a fingerprint from the skimmer, and the fingerprint examiner testified that this print matched Acevedo's.
Craig Williams, a Special Agent with the United States Secret Service, testified that a skimmer has no legitimate purpose. He explained that a skimmer, when connected to a legitimate credit card reader, "skims" or reads the data (the account holder's name and account number) on credit cards passed through the reader. The skimmer stores the data directly and can also transmit the data to another device via Bluetooth. Williams testified that the two skimmers found at the Chevron station stored more than 30 account numbers, including accounts belonging to B.D. and J.D. B.D. and J.D. both testified that they had used theircredit cards to buy gas at the Chevron station during the relevant period, their cards had not been lost or stolen, and they had never given Acevedo permission to possess their credit card accounts.
The government also introduced the abovementioned 404(b) evidence involving the two prior uncharged incidents. Williams testified that the two skimmers found at the Chevron station and the skimmer found at the Valero station all had Bluetooth capability. Williams extracted the data from all three skimmers (two from the charged acts and one from the uncharged act) and listed all the account numbers and names in a spreadsheet that was admitted into evidence. The spreadsheet listed 93 accounts numbers and names. Regarding the skimmer found at the Valero station, Williams testified that it contained over 15 account numbers, including accounts belonging to F.P. and J.E. F.P. and J.E. both testified that they had used their credit cards to buy gas at the Valero station during the relevant period, their cards had not been lost or stolen, and they had never given Acevedo permission to possess their credit card accounts.
The government then rested its case, and Acevedo moved for a judgment of acquittal, which the district court denied. After the parties' closing arguments, the court instructed the members of the jury that although they could consider evidence of past acts similar to those with which Acevedo was currently charged, they could not convict him simply because they believed he may have committedthe past uncharged acts. The jury returned a verdict convicting Acevedo on all counts.
Before sentencing, the probation office prepared a presentence investigation report ("PSR"). The PSR determined that the three skimmers collectively contained 93 pieces of personal identification information (credit card account information). It noted that law enforcement spoke to 15 victims who confirmed that Acevedo was not permitted to access their credit card information. And it determined that the total loss amount was $46,500—$500 for each of the 93 unauthorized access devices. See U.S.S.G § 2B1.1 cmt. n.3(F)(i) ().
Based on Acevedo's convictions, the PSR applied a base offense level of six. See id. § 2B1.1(a)(2). The PSR recommended several enhancements to the base offense level: a six-level enhancement because the loss amount was between $40,000 and $95,000, id. § 2B1.1(b)(1)(D); a two-level enhancement because the offense involved more than 10 victims, id. § 2B1.1(b)(2)(A); and a two-level enhancement because the offense involved the possession or use of device-making equipment, id. § 2B1.1(b)(11)(A)(i). After applying these enhancements, Acevedo's total offense level was 16. The PSR arrived at a criminal history scoreof zero, resulting in a criminal history category of I. Based on his total offense level and criminal history category of I, Acevedo's recommended range of imprisonment under the Sentencing Guidelines was 21 to 27 months. The PSR noted that Counts Five and Six carried a mandatory consecutive term of two years' imprisonment, although the district court had discretion to run the mandatory terms concurrently. See 18 U.S.C. § 1028A(a)(1), (b); U.S.S.G. § 2B1.6 cmt. n.1(B).
Acevedo objected to two of the enhancements. First, he objected to the loss amount calculation, arguing that the government offered no evidence that he used the credit cards and that credit card account numbers were not considered access devices for the purpose of calculating a loss amount. Second, he objected to the enhancement for the number of victims, contending that the government could not establish that the offense involved 10 or more victims. The government argued in response that the PSR correctly calculated the loss amount but agreed that it could not establish that the offense involved more than 10 victims. The government thus conceded that Acevedo's total offense level should...
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