1 

16-3885 

United States v. Alexander

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 25th day of July, two thousand eighteen. 

PRESENT: 

DENNIS JACOBS,

REENA RAGGI, 

PETER W. HALL,

Circuit Judges. 

_____________________________________ 

United States of America, 

 Appellee, 

v. 16-3885 

Craig Alexander, 

 Defendant-Appellant. 

_____________________________________ 

FOR DEFENDANT-APPELLANT: Craig Alexander, pro se, Fort Dix, NJ. 

FOR APPELLEE: Ransom Reynolds and Paul D. Silver, 

Assistant United States Attorneys, of 

Counsel, for Grant C. Jaquith, Acting United 

States Attorney for the Northern District of 

New York, Albany, NY. 
2 

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Suddaby, C.J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

A jury found Craig Alexander guilty of two counts of access card fraud, see 18 U.S.C. 

§§ 1029(a)(3) , (c)( 1 )(A)(i), and two counts of aggravated identity theft, see id. §§ 1028A(a)(l), 

(c)(4). Alexander had acquired another individual’s driver’s license and social security card, and 

had possessed more than a dozen fraudulent credit cards with that individual’s name embossed on 

them. Those credit cards were embedded with bank account information belonging to other 

individuals. The district court sentenced Alexander principally to 64 months’ imprisonment, at 

the high end of his guidelines range, imposing the two-year sentences on each aggravated identity 

theft conviction consecutively to one another and to the concurrent 16-month sentences on the 

access card fraud convictions. Alexander appeals pro se.1

 We assume the parties’ familiarity 

with the underlying facts, the procedural history of the case, and the issues presented for review. 

1. Double Jeopardy 

Alexander argues that his convictions for access card fraud and aggravated identity theft 

violate the Double Jeopardy Clause because they relied on the same facts--his use of a credit card 

belonging to another person. We review a double jeopardy challenge de novo. See United States 

v. Basciano, 599 F.3d 184, 196 (2d Cir. 2010). In assessing such a claim, a court must determine 

whether “each offense contains an element not contained in the other,” United States v. Dixon, 509 

U.S. 688, 696 (1993), and the focus is on the statutory elements, rather than on the facts used to 

establish them, Basciano, 599 F.3d at 198. The statutes at issue require proof of different 

elements. Section 1029(a)(1) requires, inter alia, knowing use of a counterfeit access card, while 

section 1028A requires, inter alia, knowing possession of a means of identification of another 

person. Alexander’s knowing use of a fraudulent credit card embedded with another person’s 

identity satisfied the elements of both crimes; but because those elements are distinct, his 

convictions do not violate the Double Jeopardy Clause. 

2. Cumulative Errors Denying Alexander a Fair Trial 

Alexander argues that he was denied a fair trial based on the cumulative effect of the 

indictment’s insufficiency, evidentiary errors, ineffective assistance of counsel, and his being 

shackled at trial without a finding of necessity. 

Review of the indictment reveals it was sufficient; Alexander advances no specific 

arguments about counsel’s ineffectiveness; and the district court did not err in its evidentiary 

 

1 Alexander moved to relieve his court-appointed counsel and to represent himself on this appeal, 

which motion we granted on April 27, 2017. 
3 

rulings. However, Alexander correctly asserts that he was tried in shackles without a requisite 

finding of necessity. Because he did not object below, review is for plain error. See United 

States v. Cassesse, 685 F.3d 186, 188 (2d Cir. 2012). 

“[A] defendant may not be tried in shackles unless the trial judge finds on the record that 

it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as 

preserving the safety of persons in the courtroom,” and shackling is appropriate “‘only in the 

presence of a special need.’” United States v. Haynes, 729 F.3d 178, 188 (2d Cir. 2013) (quoting 

Deck v. Missouri, 544 U.S. 622, 626 (2005)). Under Deck, when a court orders a defendant to 

wear shackles that will be visible to the jury, the shackling is presumptively prejudicial. Deck, 

544 U.S. at 635; see also Haynes, 729 F.3d at 189. 

Here, no finding of necessity was made on the record. And although the district court 

endeavored to prevent the jury from seeing Alexander wearing shackles, it is unclear whether these 

efforts were entirely successful. However, even assuming this satisfies the first two requirements 

of plain error, Alexander fails to satisfy the final two. See United States vs. Marcus, 560 U.S. 

258, 262 (2010) (stating that a plain error is (1) an error, (2) that is “clear or obvious,” (3) that 

affects “substantial rights,” and (4) that “seriously affects the fairness, integrity, or public 

reputation of judicial proceedings” (internal quotation marks omitted)). Given the overwhelming 

evidence presented against him, Alexander fails to demonstrate that the outcome of the 

proceedings was affected by the shackling without the requisite finding or by the jury’s possible 

observation of the restraints. See United States v. Boyland, 862 F.3d 279, 288–89 (2d Cir. 2017) 

(explaining that plain error requires, inter alia, that “the error ‘affected the appellant’s substantial 

rights, which in the ordinary case means’ it ‘affected the outcome of the district court 

proceedings’” (quoting Marcus, 560 U.S. at 262)). Nevertheless, it bears emphasizing that a 

finding of necessity is required before shackling a defendant at trial. See Haynes, 729 F.3d at 

190. 

 

3. Sentence 

Alexander challenges his sentence as unreasonable, arguing that the district court erred by 

imposing his sentences under § 1028A consecutively to each other and to his convictions under 

§ 1029. He further contends that the district court did not appropriately weigh the 18 U.S.C. 

§ 3553(a) factors, giving them only a “passing mention.” Appellant’s Br. 60. Finally, he argues 

that the district court failed to consider the 18 U.S.C. § 3584 factors in applying U.S.S.G. § 5G1.3. 

Because Alexander did not object below, review is for plain error. United States v. Chibuko, 744 

F.3d 259, 262 (2d Cir. 2014). 

Section 1028A provides for a mandatory two-year sentence that must run consecutively to 

any other sentence unless the other sentence is also for a violation of § 1028A, in which case, the 

district court may exercise discretion in deciding whether to impose consecutive or concurrent 

sentences. 18 U.S.C. § 1028A; Chibuko, 744 F.3d at 262 (“If a defendant is convicted of more 

than one offense under § 1028A, the only sentencing decision the court makes is whether the 
4 

sentences for multiple § 1028A offenses will run concurrently with each other.”). In making this 

decision, a court must consider (1) the nature and seriousness of the underlying offenses; 

(2) whether the underlying offenses are groupable under § 3D1.2, in which case the § 1028A 

sentences should run consecutively; and (3) whether the § 3553(a)(2) factors are better achieved 

by concurrent or consecutive sentences. Chibuko, 744 F.3d at 262 (citing U.S.S.G. § 5G1.2). 

Here, the district court began by specifically referencing the three factors listed in § 5G1.2. 

The district court discussed groupability, although it declined to impose the counts concurrently. 

Chibuko, 744 F.3d at 264 (“Even though the crimes underlying those counts were groupable, it 

remained within the district court’s discretion to determine whether the ‘general[ ]’ rule should not 

apply based either on a factor spelled out in Application Note 2(B) or, given the expressly nonexhaustive nature of Note 2(B), some other factor.” (alteration in original)). The court considered 

the seriousness of the underlying offenses--specifically, that Alexander committed the offenses at 

multiple locations, that he assumed someone else’s identity, and that he repeatedly gave the police 

a false identity. The court also noted there were at least 15 victims. Thus, the record reflects that 

the district court did not “ignore factors Congress ha[d] instructed it to consider,” and Alexander’s 

contention that the district court wrongly imposed consecutive sentences is without merit. Id. at 

263. 

Nor was Alexander’s sentence procedurally or substantively unreasonable based on the 

district court’s treatment of the § 3553(a) factors. Our review for reasonableness is akin to a 

‘“deferential abuse-of-discretion standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 

2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We identify no such 

abuse here. At sentencing, the district court stated that it had reviewed the PSR, the parties’ 

sentencing submissions, and the § 3553(a) factors; it listed the factors it considered when imposing 

the sentence; and it imposed a sentence within the Guidelines range. See United States v. PerezFrias, 636 F.3d 39, 43 (2d Cir. 2011) (“[I]n the overwhelming majority of cases, a Guidelines 

sentence will fall comfortably within the broad range of sentences that would be reasonable in the 

particular circumstances.” (internal quotation makrs omitted)) (per curiam). 

 

Finally, Alexander argues that the district court abused its discretion under § 5G1.3 by 

imposing his term of imprisonment to run consecutively with any sentence on his parole violation. 

The argument is without merit. First, under § 5G1.3, “the sentence for the instant offense may be 

imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged 

term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. 

§ 5G1.3(d). Section 3584 provides that “[m]ultiple terms of imprisonment imposed at different 

times run consecutively unless the court orders that the terms are to run concurrently,” and that the 

court should consider the § 3553(a) factors in making the determination. 18 U.S.C. § 3584(a)–

(b). Here, the district court stated that it considered the parole violation a “separate and distinct” 

matter. App’x at 490. As recounted above, the court discussed the factors that influenced its 

sentencing decision. Accordingly, the record does not suggest that the district court failed to 

consider its discretion to sentence Alexander consecutively to any pending parole violation, nor 

did the court fail to explain its reasoning. 
5 

We have considered all of Alexander’s remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court