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 (W ITH THE NOTATION A SUMMARY 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 25 th 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 c ounts 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 cour t 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 a nd 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 proc edural history of the case, and the issues presented for review.

1. Double Jeopardy

Alexander argues that his convictions for acce ss card fraud and aggravated identity theft violate the Double Jeopardy Clause because they reli ed 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 el ement 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) requi res, inter alia, knowing use of a counterfeit access card, while section 1028A requires, inter al ia, knowing possession of a means of identi fication of another person. Alexander’s knowing use of a fraudulen t credit card embedded w ith another person’s identity satisfied the elements of both crimes ; but because those elements are distinct, his
convictions do not violate th e 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 th e district court did not err in its evidentiary

1 Alexander moved to relieve his c ourt-appointed counsel and to re present himself on this appeal, which motion we granted on April 27, 2017.3 rulings. However, Alexander corr ectly asserts that he was tried in shackles without a requisite finding of necessity. Because he did not obje ct below, review is for plain error. See United

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

“[A] defendant may not be trie d in shackles unless the trial j udge finds on the record that it is necessary to use such a rest raint as a last resort to satisf y a compelling interest such as preserving the safety of persons in the courtroo m,” and shackling is ap propriate “‘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 visi ble 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 th e 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 e rror 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 quot ation 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 th e 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)). Neverthele ss, 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 sent ence 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 c ourt did not appropriately weigh the 18 U.S.C. § 3553(a) factors, giving them only a “passing men tion.” Appellant’s Br. 60. Finally, he argues

that the district court failed to consider the 18 U.S.C. § 3584 factor s 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 othe r sentence is also for a violati on of § 1028A, in which case, the district court may exercise discretion in decidi ng whether to impose consecutive or concurrent sentences. 18 U.S.C. § 1028A; Chibuko , 744 F.3d at 262 (“If a defenda nt is convicted of more than one offense under § 1028A, th e only sentencing decision the court makes is whether the4 sentences for multiple § 1028A offenses will run conc urrently 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 groupa ble under § 3D1.2, in which case the § 1028A sentences should run consecutively; and (3) whethe r 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 refe rencing the three factors listed in § 5G1.2. The district court discussed groupa bility, although it dec lined to impose the c ounts 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), so me other factor.” (alteration in original)). The court considered the seriousness of the underlying offenses--specifi cally, 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 fa ctors Congress ha[d] instructed it to consider,” and Alexander’s contention that the district court wrongly impos ed 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 th e § 3553(a) factors. Our review for reasonableness is akin to a

‘“deferential abuse-of-d iscretion 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 di strict court stated th at it had reviewed the PSR, the parties’ sentencing submissions, and the § 35 53(a) factors; it listed the factor s 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 overw helming 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 u nder § 5G1.3 by imposing his term of imprisonment to run consecutivel y with any sentence on hi s parole violation. The argument is without merit. First, under § 5G 1.3, “the sentence for the instant offense may be imposed to run concurrently, part ially concurrently, or consecuti vely to the prior undischarged term of imprisonment to achieve a reasonable puni shment 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 co urt 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 stat ed that it considered the parole violation a “separate and distinct” matter. App’x at 490. As recounted above, the c ourt discussed the factor s that influenced its sentencing decision. Accordingly, the record does not suggest that the district court failed to

consider its discretion to senten ce Alexander consecutively to a ny pending parole violation, nor did the court fail to explain its reasoning.5 We have considered all of Al exander’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