[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 16063 Non

- Argument Calendar

________________________ D.C. Docket No. 8:15

- cr - 00328

- SCB

- AAS

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus YANNIER ARIAS, Defendant

- Appellant.

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

________________________ (October 5, 2017) Before WILLIAM PRYOR , JORDAN and ROSENBAUM , Circuit Judges. PER CURIA M:

Case: 16-16063 Date Filed: 10/05/2017 Page: 1 of 82 Yannier Arias appeals his convictions and 102

- month sentence for two counts of conspir ing to commit access device fraud and aggravated identity theft, 18 U.S.C. § 371; nine counts of access device fraud, i d. § § 2, 1029 ( a)(1); five counts of aggravate d identity theft, i d

. §§ 2, 1028A ; and one count of possessin g more than 15 counterfeit and unauthorized access devices, i d

. § § 2, 1029(a)(3). Arias challenges the denial of his motions to sever the charges against him , to exclude a videotape showing hi s vehicle exceeding the speed limit , and t o acquit
him of seven offenses that he committed with Jose Vera . Arias also challenges the denial of downward adjustments for acceptance of responsibility and for a minor role ; the reasonableness of his sentence ; and, for the first time, the calculation of his criminal history score . We affirm. The district court did not abuse its discretion when it denied Arias’s motion
to sever the charges in Counts 1 through 9 related to his conspiracy with Vera from the charg es in Counts 10 through 17 related to his conspiracy with Daniel Sardinas

- Lopez. All of Arias’s offenses involved stealing personal identification information to produce counterfeit credit cards for use by the co conspirators

. Because Arias’s offenses were “ of the same or similar character, ” Fed. R. Crim. P. 8(a) , they were subject to joinder. See United States v. Barsoum , 763 F.3d 1321,
1336

– 37 (11th Cir. 2014). And A rias failed to prove that joinder “ result ed in

Case: 16-16063 Date Filed: 10/05/2017 Page: 2 of 83 compelling prejudice against which the district court could offer no protection.” See United States v. Bowers , 811 F.3d 412, 422 (11th Cir. 2016 ) (quoting United States v. Walser , 3 F.3d 380, 385 (11th Cir. 1993) )

. Arias was tried separately to enable t he jur y to determin e guilt based solely on the evidence of hi s conduct, and the government presented its evidence in a sequential manner t o help the jurors

a ssess Arias’s participation in each conspiracy

. Furthermore , the district court instruct ed the jury that “[i]f you find the defendant guilty or not guilty of one of the crimes, that must not affect your verdict for any other crime , ” and we presume that the jury follow ed that instruction. See id. The district court also did not abuse its discreti on when it admitted video footage displaying the high rate of speed that Arias drove to evade arrest

. Troopers Jorge Navarez and Walex Louis testified that they stopped Arias ’s vehicle; that a wallet and cigarette box containing fraudulent identification cards were tossed out the passenger side window; that Arias said the wallet and box were empty and then produc ed a fraudulent driver’s license identifying him self as Angel Garci a ; that Arias fled when Navarez handed the wallet and box to Louis; and that Arias proceeded to le a d the troopers on a high speed chase. The video recording of Arias’s flight that showed the speeds that he reached w as “ admissible to demonstrate [ his ] consc iousness of guilt and thereby guilt. ” See United States v. Blakey , 960 F.2d 996, 1000 (11th Cir. 1992)

.

Case: 16-16063 Date Filed: 10/05/2017 Page: 3 of 84 Arias argues that he was entitled to a partial verdict of acquittal for Counts 10 through 17 , but he has waived that argument by failing to comply with Federal Rule of Appellate Procedure 28(a)(8)(A)

. That r ule requires a n appellant to include
in hi s brief an “argument, which must contain [his] contentions and reasons for them, with citations to the authorities and parts of the record on which [he] relies .” Fed. R. App. P. 28(a)(8)(A). The government contends, and we agree , that Arias’s “argument is not sufficient developed . . . to merit appellate review.” Arias’s argument con sists of one paragraph in which he a sserts that each of the charges connected to his conspiracy with Vera “were not proven

. ” In the light of our repeated warnings about the consequences of fail ing to comply with Rule 28(a)(8) (A) , we deem waived Arias’s challenge to the denial of his motion for a judgment of acquittal. S ee Nat ’ l All. f or the Mentally Ill, St. J ohns Inc. v. Bd. of
C ty
. Comm’rs , 376 F.3d 1292, 129 5

– 96 (11th Cir. 2004) ; Farrow v. West , 320 F.3d 1235, 1242 n.10 (11th Cir. 2003) ; Cont’ l Tech. Servs., Inc. v. Rockwell Int ’ l Corp. , 927 F.2d 1198, 1199 (11th Cir. 1991)

. Even if Arias had not waived the issue, we would affirm the denial of his motion for judgment of acquittal. The government presented ample evidence of Arias’s crimes with Vera, including video surveillance of them using a counterfeit credit card in stores at the Orlando mall, evidence of the high

- speed chase and

Case: 16-16063 Date Filed: 10/05/2017 Page: 4 of 85 counterfeit cards in the same name thrown from Arias’s car, and counterfeit drivers’ licenses in the same name seized from Arias and Vera. The district court did not clearly err in finding that Aria s failed to accept responsibility for his crimes. For a defendant to obtain a two

- level reduction of his offense level , he must “clearly demonstrate [] acceptance of responsibility for his offense.” United States Sentencing Guidelines Manual § 3E1.1 (a) (Nov. 2015). Arias was not entitled to t h e reduction because he “ put [] the government to its burden of proof at trial . . . , [was] convicted, and only then admit [ted] guilt and expresse[d] remorse.” Id. cmt. n.2. Arias mov ed to exclude inculpatory evidenc e and contested his guilt. See United States v. Spoerke , 568 F.3d 1236, 1252 (11th Cir. 2009)

. Arias also never express ed genuine contrition for his misdeeds

. As the district court stated , Arias ’s sentencing memorandum “minimized [his] responsibility” by stating his coconspirators led the schemes to defraud and was

“ full of excuses” that he was helpi ng his coconspirators and that he needed the
money to satisfy his financial obligations. Arias’s conduct w as inconsistent with an acceptance of responsibility. The district court also did not clearly err by finding that Arias serve d more than a minor role in the conspiracy

. To qualify as a minor participant , a defendant must be “ less culpable than most other participants in the criminal activity, but [his] role [cannot] be described as minimal

. ” U.S.S.G. § 3B1.2(b) & cmt. n.5.

Case: 16-16063 Date Filed: 10/05/2017 Page: 5 of 86 When Arias worked with Lopez, the two men were videotaped together using

c ounterfeit credit cards , two of which bore the name on Arias’s fraudulent driver’s license; a tracking device on Lo pez’s vehicle showed that he routinely visited Arias before driving to gas stations to install skimming devices ; a nd agents discovered in Lopez’s house nine counterfeit credit cards embossed with Arias’s

name. When Arias worked with Vera, Arias was videotaped serv ing as a lookout for, shopp ing with, and carr y i ng item s that Vera purchased using a counterfeit credit card that was discarded from Arias’s car and that was embossed with the

name on Arias’s fraudulent driver’s license. Arias bore the bu rden of proving he played a lesser role, s ee United States v. Moran , 778 F.3d 942, 980 (11th Cir. 2015) , and he offer ed no evidence other than his self

- serving statements to prove that Lopez or Vera had a more significant role than him in the conspiracies. Based on the nature and extent of Arias’s conduct, the district court reasonably denied Arias a reduction for the reason that he was not “a minor participant in either of the conspiracies” and was “not substantially less liable or responsible” than Lopez or
Vera. See U.S.S.G. § 3B1.2 cmt. n.3(C) ; United States v. De Varon , 175 F.3d 930, 940 (11 th Cir. 1999) (en banc). Arias c hallenges the addition of one point to his criminal history score for a prior conviction for petit theft , see U.S.S.G. § 4A1.1(c), but because Arias did not rais e this issue in the district court, we review f or plain error

. Under that standard, Case: 16-16063 Date Filed: 10/05/2017 Page: 6 of 87 Arias must prove that an error occurred that is plain and that affected his substantial rights. See United States v. Agu ilar

- Ibarra , 740 F.3d 587, 592 (11th Cir. 2014)

. Arias argues that United States v. Clarke , 822 F.3d 1213 (11 th Cir. 2016), bars scoring his prior conviction because a djudication was withheld . In Clarke , we held that a guilty plea without adjudication d oes not qualify as a “c rime punishable by imprisonment for a term exceeding one year ” for purposes of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Clarke , 822 F.3d at
1214

– 15. But the district court used Arias’s prior conviction to calcula te hi s criminal history score under s ection s 4A1.1 (c) and 4A1.2 (f) of the Sentencing Guidelines. Under those provisions, Arias’s prior conviction with adjudication withheld following a plea of nolo contendere warrants one criminal history point as a diversionary disposition. See U nited States v. Rockman , 993 F.2d 811, 813

– 14 (11th Cir. 1993)

. The district court did not err, much less plainly err, in calculating Arias’s criminal history

. Arias also argues that his sentence of 102 months of imprisonment is substantively unreasonable, but we disagree. While on probation for committing petit theft in Florida, Arias misappropriated the means of identification of at least
10 actual persons , which he used to creat e counterfeit credit cards and to cause a loss of more than $150,000. And in his attempt to evade arrest, Arias endangered the public by leading officers on a high speed chase. With an offense level of 24

Case: 16-16063 Date Filed: 10/05/2017 Page: 7 of 88 and a criminal history of I II, Arias faced an advisory guideline range of 63 to 78 months for each of his crimes of conspiracy, access device fraud, and possessing counterfeit access devices, and a mandatory consecutive sentence of 24 months for each of his aggravated identity theft crimes. The district court reasonably determined that imposing concurrent terms of 78 month s t hat ran consecutively to

concurr e nt terms of 24 month s , which resulted in a sentence “within the guideline range” yet “at [its] high end , ” was necessary to accou nt for Arias’ s criminal history and the seriousness of his offense, to deter him from future similar conduct, and to protect the public. See 18 U.S.C. § 3553(a). Arias argues that his sentence is “vastly disparate” from Lopez’s 48

- month sentence, but the two men are not similarly situated. See United States v. Docampo , 573 F.3d 1091, 1101

– 02 (11th Cir. 2009)

. In contrast to Arias, who proceeded to trial for multiple offenses connected to two conspiracies, Sardinas

- Lopez pleaded guilty for two offenses that he committed during one conspiracy. The district court did not abuse its discretion.
We AFFIRM Arias’s convictions and sentence. Case: 16-16063 Date Filed: 10/05/2017 Page: 8 of 8