[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 17-14735

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-20322-UU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

CARLOS FLEITAS, 

 Defendant - Appellant. 

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No. 17-14820

Non-Argument Calendar

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D.C. Docket No. 1:17-cr-20322-UU-3

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

REYNEL RODRIGUEZ HERNANDEZ, 

 Defendant-Appellant. 

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Appeals from the United States District Court

for the Southern District of Florida

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(March 12, 2019)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM: 

Carlos Fleitas appeals his total 150-month sentence for conspiracy to commit 

access device fraud, in violation of 18 U.S.C. § 1029(b)(2); possession of access 

device-making equipment, in violation of 18 U.S.C. § 1029(a)(4); and aggravated 

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Co-defendant, Reynel 

Rodriguez Hernandez, appeals his total 48-month sentence for conspiracy to commit 

access device fraud, in violation of 18 U.S.C. § 1029(b)(2); possession of 15 or more 

counterfeit and unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3);

and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). 

Several issues are raised on appeal: (1) both defendants argue that the district 

court erred in imposing a 16-level enhancement, pursuant to U.S.S.G. § 

2B1.1(b)(1)(I), for a loss amount calculation based on the 3,659 account numbers 

discovered on the computer of a third co-defendant, Armando Pedroso, and in 

imposing a 2-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i), for ten 

or more victims; (2) Rodriguez Hernandez argues that the district court erred in 

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failing to impose a 4-level reduction, pursuant to U.S.S.G. § 3B1.2(a), for a minimal 

role in the conspiracy; and (3) Fleitas argues that the district court abused its 

discretion by imposing a substantively unreasonable sentence. After careful review, 

we affirm.

We review a district court’s interpretation of the Sentencing Guidelines de 

novo, and its determination of the amount of loss involved in an offense for clear 

error. United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). Clear error 

will be found only if we are left with a definite and firm conviction that the district 

court committed a mistake. Id. We also review a district court’s determinations of 

a defendant’s role in the offense and the number of victims for clear error. United 

States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013); United States v. 

Rodriguez DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). We review the 

sentence a district court imposes for “reasonableness,” which “merely asks whether 

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 

(11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)). 

Where a defendant expressly withdraws an objection before the district court, 

he waives the issue on appeal. United States v. Cobb, 842 F.3d 1213, 1222 (11th 

Cir. 2016). However, where a defendant fails to orally restate an objection at a 

sentencing hearing, but refers to previously filed objections, the issue is preserved 

for appeal. United States v. Baker, 116 F.3d 870, 872 n.4 (11th Cir. 1997). 

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Objections or arguments that are not raised at the district court are reviewed for plain 

error. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). To prove plain 

error, a defendant must show: (1) error, (2) that is plain, and (3) that affects 

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If 

all three conditions are met, we may exercise our discretion to recognize the error, 

if it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings. Id. 

First, we are unpersuaded by the defendants’ challenge to the district court’s 

loss-amount calculation. Under the Guideline Commentary, loss in cases involving 

counterfeit or unauthorized access devices equals any unauthorized charges using 

the device “and shall be not less than $500 per access device.” U.S.S.G. § 2B1.1, 

comment. (n.3(F)(i)). A district court may hold all participants in a conspiracy 

responsible for the losses resulting from the reasonably foreseeable acts of coconspirators in furtherance of the conspiracy. See United States v. Dabbs, 134 F.3d 

1071, 1082 (11th Cir. 1998). To determine a defendant’s liability for the acts of 

others, the court must first make individualized findings concerning the scope of the 

criminal activity undertaken by a particular defendant, and then determine 

reasonable foreseeability. United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 

2003). The government bears the burden of establishing loss amount by a 

preponderance of the evidence. See Dabbs, 134 F.3d at 1081. 

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Here, the district court did not clearly err in calculating the loss amount nor 

err in assessing a 16-level enhancement for a loss amount of more than $1.5 million, 

but not more than $3.5 million. At sentencing, Detective Sebastian Monros testified

that: (1) the simplest model of skimming devices can hold about 2,000 account 

numbers; (2) over the approximately two-month charged conspiracy, investigators 

recovered four skimming devices Monros had witnessed being installed by either 

Fleitas or the third co-defendant, Pedroso; (3) Monros could not confirm how many 

of the account numbers on Pedroso’s computer were obtained through the skimmers, 

but the more than 3,000 numbers on the computer were consistent with having been 

retrieved using a skimmer; (4) Monros could not determine when the numbers were 

downloaded to Pedroso’s computer, but Fleitas had equipment to download 

information from skimmers; and (5) at the time officers searched Fleitas’s house, he 

had a flash drive with 500 account numbers. In addition, Rodriguez Hernandez 

admitted in the plea agreement that he had accompanied Fleitas to gas stations to 

install or remove skimming devices, and Rodriguez Hernandez had in his possession 

a magnetic strip encoder and 16 counterfeit credit and gift cards encoded with 

account numbers. 

The government argued, and the court agreed, that the object of the conspiracy 

was to use skimming devices to obtain credit card account numbers and make 

fraudulent credit cards, and that the skimming devices were capable of holding 

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around 2,000 numbers per device. The government also argued, and the court again 

agreed, that the scope of the conspiracy included an indeterminate quantity of 

numbers, “as many numbers as they possibly can obtain.” The court added that 

Fleitas had been engaged in this conspiratorial conduct, and had been hoping for as 

much financial gain as he could derive. Moreover, the court observed that Rodriguez 

Hernandez had jointly undertaken criminal activity that he knew involved skimming 

credit card numbers and manufacturing access devices, had exchanged text messages

with Fleitas about which account numbers he could take, and did not appear

concerned about how big the conspiracy was. The court concluded that it was 

reasonably foreseeable to both Fleitas and Rodriguez Hernandez that the scope of 

the conspiracy exceeded whatever numbers were found in their possession. 

Through these findings, the court described the scope of the conspiracy and 

indicated that the quantity of numbers on Pedroso’s computer were a foreseeable 

consequence of that activity. Hunter, 323 F.3d at 1320, 1322; Dabbs, 134 F.3d at 

1082. The court then calculated the loss amount, using the 3,000 credit card account 

numbers found on Pedroso’s computer and the Guidelines’ rubric of at least “$500 

per access device,” which resulted in a total loss amount of between $1.5 and $3.5 

million. Because the district court made findings as to the scope of the criminal 

activity Fleitas and Rodriguez Hernandez jointly undertook with their co-defendant, 

and found that the over 3,000 credit card account numbers on Pedroso’s computer 

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were a reasonably foreseeable consequence of the conspiracy, the district court did 

not err in applying a 16-level enhancement for loss amount. 

Next, we reject the defendants’ claim that the district court clearly erred in 

calculating the number of victims involved in the offense. A two-level sentencing 

enhancement applies where the offense involved ten or more victims. U.S.S.G. § 

2B1.1(b)(2)(A). A “victim” means, inter alia, “any individual whose means of 

identification was used unlawfully or without authority,” and the mere transfer of 

unauthorized identifying information is not the equivalent to the actual use of the 

identifying information for a fraudulent purpose. United States v. Hall, 704 F.3d 

1317, 1321-1323 (11th Cir. 2013) (emphasis omitted). Hall held that because the 

plain language of U.S.S.G. § 2B1.1(b)(2)(B) did not apply to a defendant’s mere sale 

or transfer of the victims’ identifying information, only the 12 individuals whose 

identifying information was used to obtain fraudulent credit cards could be counted

as “victims” in calculating Hall’s sentence. Id. at 1322-23.

For starters, we need not decide Rodriguez Hernandez’s appeal of this issue.

At sentencing, his counsel declared that while “there was one more objection that I 

filed concerning the number of victims[,] . . . I’m withdrawing that objection.” Thus, 

Rodriguez Hernandez failed to preserve this issue on appeal by expressly 

withdrawing his objection during sentencing. Cobb, 842 F.3d at 1222. 

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Fleitas, however, likely preserved this issue for appeal by referencing his 

objections at the end of the sentencing hearing, although he did not make arguments 

before the district court related to the objection, he did not remind the court it needed 

to rule on the objection, and the court never made an explicit ruling on the objection. 

On this record, we review for plan error, Bennett, 472 F.3d at 831, but we cannot 

find any. Even without considering Fleitas’s mere possession of account numbers, 

the record reveals that Fleitas personally possessed 6 counterfeit credit and gift 

cards, while Rodriguez Hernandez personally possessed 16 counterfeit credit and 

gift cards. Because Fleitas can be held responsible for the foreseeable acts of his coconspirators, between Fleitas and Rodriguez Hernandez, 22 counterfeit credit and 

gift cards were made, and the identifying information of at least 10 victims was used 

for the purposes of the enhancement. Hall, 704 F.3d at 1322-23. Thus, the district 

court did not plainly err in calculating the number of victims.

We are also unconvinced by Rodriguez Hernandez’s claim that the district 

court clearly erred in failing to impose a four-level minimal-role reduction. The 

Sentencing Guidelines provide for a two-level reduction in a defendant’s offense 

level if he was a minor participant in the offense. U.S.S.G. § 3B1.2(b). A minor 

participant is any participant “who is less culpable than most other participants in 

the criminal activity, but whose role could not be described as minimal.” Id. § 3B1.2, 

comment. (n.5). Further, a district court may decrease a defendant’s offense level 

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by four levels if it finds the defendant was a “minimal participant” in the criminal 

activity. Id. § 3B1.2(a). The commentary to the Guidelines instructs that a fourlevel reduction “is intended to cover defendants who are plainly among the least 

culpable of those involved in the conduct of a group . . . [and their] lack of knowledge 

or understanding of the scope and structure of the enterprise and of the activities of 

others is indicative of a role as minimal participant.” Id., comment. (n.4). The 

district court has “considerable discretion in making this fact-intensive 

determination.” United States v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). 

The defendant bears the burden of proving his minor role by the preponderance of 

the evidence. DeVaron, 175 F.3d at 939.

Here, the district court did not clearly err in granting Rodriguez Hernandez a 

minor-role reduction instead of a minimal-role reduction. As we’ve said, the district 

court has considerable discretion in making this determination, and in this case, 

Rodriguez Hernandez failed to carry his burden of proving his role was minimal, as 

opposed to minor, by a preponderance of the evidence. Boyd, 291 F.3d 1274; 

DeVaron, 175 F.3d at 939. The court specifically noted that, had Rodriguez 

Hernandez’s role been limited solely to acting as a lookout, it would consider him a 

minimal participant. The court added, however, that because Rodriguez Hernandez 

was in possession of credit card numbers, 16 counterfeit credit or gift cards, and a 

magnetic strip encoder, and had exchanged text messages with Fleitas about which 

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account numbers he could take, the evidence indicated his role was more than only 

a lookout. So while Rodriguez Hernandez may have been the least culpable of his 

co-defendants, we cannot say the court clearly erred in finding he was more than a 

minimal participant. 

Finally, we find no merit to Fleitas’s claim that his sentence is substantively 

unreasonable. In reviewing the “‘substantive reasonableness of [a] sentence 

imposed under an abuse-of-discretion standard,’” we consider the “‘totality of the 

circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall v. United States, 552 U.S. 

38, 51 (2007)). The district court must impose a sentence “sufficient, but not greater 

than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a).1

 The 

court must consider all of the § 3553(a) factors, but it may give greater weight to 

some factors over others -- a decision which is within its sound discretion. United 

States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). However, a sentence 

may be substantively unreasonable when a court unjustifiably relies on any single § 

3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the sentence on 

impermissible factors, or selects the sentence arbitrarily. Pugh, 515 F.3d at 1191-

 1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 

history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the 

seriousness of the offense, to promote respect for the law, and to provide just punishment for the 

offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to 

protect the public; (5) the need to provide the defendant with educational or vocational training 

or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the 

pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted 

sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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92. A sentence that suffers from one of these symptoms is not per se unreasonable; 

rather, we must examine the totality of the circumstances to determine the sentence’s 

reasonableness. Id. at 1192. “[W]e will not second guess the weight (or lack thereof) 

that the [court] accorded to a given [§ 3553(a)] factor . . . as long as the sentence 

ultimately imposed is reasonable in light of all the circumstances presented.” United 

States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and 

emphasis omitted). 

If the court varied from the guideline range after weighing the § 3553(a) 

factors, we “may not presume that [the] sentence . . . is unreasonable and must give 

due deference to the district court’s decision . . . .” United States v. Irey, 612 F.3d 

1160, 1187 (11th Cir. 2010) (en banc) (quotation omitted). We will vacate a 

sentence 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.” Id. at 1190 (quotation omitted). Although the district court 

must consider the § 3553(a) sentencing factors, it is not required to explicitly discuss 

or state on the record that it has considered each of the § 3553(a) factors. United 

States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007). Even if the district court fails 

to articulate explicitly that it has considered the § 3553(a) factors, the sentence is not 

rendered unreasonable if the record indicates that the court did, in fact, consider a 

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number of the sentencing factors. Id. The party challenging the sentence bears the 

burden to show it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 

(11th Cir. 2010).

Here, the district court did not impose a substantively unreasonable sentence.

At sentencing, the court said that it specifically considered the circumstances of the 

offense and Fleitas’s criminal history, including uncharged conduct, and that, based 

on those factors, as well as the parties’ statements, the PSI, and the other statutory 

factors, an upward variance was warranted. The district court then imposed a 

sentence of 120 months’ imprisonment on one of Fleitas’s counts (upward from the

Guidelines’ range of 70 to 87 months), which resulted in a total sentence of 150 

months’ imprisonment. In imposing the variance, the court repeatedly noted that the 

circumstances of the offense demonstrated a callousness on the part of Fleitas, 

especially since he had been out on bond when he committed the instant offense, and 

that Fleitas had been involved in this kind of criminal credit card scheme since at 

least 2013. On this record, we cannot say that the district court abused its discretion 

in imposing Fleitas’s sentence, nor in imposing an upward variance on one of the 

counts. Indeed, we’ve explained that, under the abuse-of-discretion standard of 

review, there will be occasions in which we affirm the district court even though we 

would have gone the other way had it been our call. Irey, 612 F.3d at 1189. Because 

the district court clearly considered the § 3553(a) factors in arriving at Fleitas’s 

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sentence and did not fail to afford consideration to relevant factors that were due 

significant weight, did not give significant weight to an improper or irrelevant factor, 

and did not commit a clear error of judgment in considering the proper factors, we 

cannot say the sentence was substantively unreasonable. Id.

AFFIRMED.

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