UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4916

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTONIO DONEIL LEE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:08-cr-00242-TDS-1)

Argued: January 25, 2011 Decided: March 21, 2011

Before KING, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Harry L. Hobgood, OFFICE OF THE UNITED STATES ATTORNEY, 

Greensboro, North Carolina, for Appellant. James Darren Byers, 

LAW OFFICE OF J. DARREN BYERS, PA, Winston-Salem, North 

Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Antonio Doneil Lee pled guilty to bank fraud (Count One), 

in violation of 18 U.S.C. § 1344(2), and was found guilty, after 

a bench trial, of aggravated identity theft (Count Two), in 

violation of 18 U.S.C. § 1028A(a)(1). The district court 

sentenced Lee to forty-eight months imprisonment on Count One in 

addition to a statutorily mandated consecutive sentence of 

twenty-four months on Count Two. Lee appeals his conviction for 

Count Two and challenges the amount of loss attributed to Count 

One at sentencing. Finding no error, we affirm the judgment of 

the district court.

I.

Lee argues the district court improperly denied his motion

for judgment of acquittal on Count Two. We review de novo the 

district court’s denial of a motion for judgment of acquittal. 

United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). 

“[A]ppellate reversal on grounds of insufficient evidence . . . 

will be confined to cases where the prosecution’s failure is 

clear.” Burks v. United States, 437 U.S. 1, 17 (1978). The 

verdict will be affirmed if, when viewed in the light most 

favorable to the government, there is substantial evidence to 

support it. United States v. Alerre, 430 F.3d 681, 693 (4th 

Cir. 2005). Substantial evidence is defined as evidence that a 
3

“‘reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.’” Green, 599 F.3d at 367 (quoting United 

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)). 

18 U.S.C. § 1028A(a)(1), the statute charged in Count Two, 

imposes a mandatory two-year consecutive sentence on an 

individual who “knowingly transfers, possesses, or uses, without 

lawful authority, a means of identification of another person” 

during or in relation to the commission of certain enumerated 

felonies. In Flores-Figueroa v. United States, 556 U.S. ----, 

129 S. Ct. 1886 (2009), the Supreme Court held that this 

language requires the Government to “show that the defendant 

knew that the means of identification at issue belonged to 

another person.” Flores-Figueroa, 129 S. Ct. at 1894. Lee 

argues the Government failed to offer sufficient evidence to 

prove that he knew that the identification documents he used to 

cash altered checks actually belonged to a real person, as 

required by the Supreme Court in Flores-Figueroa. 

The Flores-Figueroa standard may impose a difficult burden 

on the Government in proving the elements of § 1028A(a)(1) in 

certain cases of identity theft. As the Ninth Circuit has 

noted, however, requiring proof of knowledge “that the 

identification document belonged to another person . . . . is 

not an insurmountable burden, especially in a case where the 
4

identification document contains someone else’s photo and does 

not appear to be a fake.” United States v. Miranda-Lopez, 532 

F.3d 1034, 1040 (9th Cir. 2008).1

After reviewing the record, we conclude that the evidence 

was sufficient to support Lee’s conviction on Count Two. That

evidence established that the Social Security and North Carolina 

identification cards used by Lee were both genuine in fact and 

appearance. In particular, the North Carolina identification 

card used to cash the altered check bore two images of the 

card’s actual owner in addition to a series of complex holograms 

 This observation properly 

reflects that circumstantial evidence can be fully sufficient 

for purposes of sustaining a conviction under a sufficiency of 

the evidence review. See United States v. Tresvant, 677 F.2d 

1018, 1021 (4th Cir. 1982) (“We must consider circumstantial as 

well as direct evidence, and allow the government the benefit of 

all reasonable inferences from the facts proven to those sought 

to be established.”). Thus, circumstantial evidence supporting 

a reasonable inference of knowledge that the means of 

identification belonged to another person will be sufficient to 

sustain a conviction under 18 U.S.C. § 1028A(a)(1). 

 1 Although issued prior to Flores-Figueroa, the Ninth 

Circuit’s decision in Miranda-Lopez, by requiring proof of 

knowledge that the identification belonged to another person, 

was consistent with the Supreme Court’s later ruling on the 

meaning of § 1028(A)(a)(1). 
5

not found on counterfeit versions. Additionally, the North 

Carolina identification card “contains someone else’s photo and 

does not appear to be a fake.” Miranda-Lopez, 532 F.3d at 1040. 

Furthermore, the record shows that Lee’s modus operandi was to 

use genuine identification documents when he or his accomplices 

cashed altered checks. This evidence, a consistent modus 

operandi combined with the cards’ factual and apparent 

genuineness, was sufficient for a reasonable finder of fact to 

conclude that Lee had knowledge that the identification belonged 

to an actual person.

Accordingly, we conclude that the district court did not 

err in denying Lee’s motion for acquittal. We therefore affirm 

Lee’s conviction under Count Two for violating U.S.C. § 

1028A(a)(1). 

II.

The other issue raised by Lee is whether the district court 

erred in its determination of the amount of loss attributable to 

him for sentencing purposes under Count One. Lee challenges the 

district court’s finding at sentencing that a $20,000 check, 

found in his car at the time of his arrest, was part of the 
6

“same common scheme or plan” as the charged conduct.2

“The sentencing guidelines establish that certain relevant 

conduct may be considered in determining the guidelines range 

for a criminal defendant.” United States v. Hodge, 354 F.3d 

305, 312 (4th Cir. 2004). Conduct that is a “part of the same 

course of conduct or common scheme or plan as the offense of 

conviction” is considered relevant under the guidelines. 

U.S.S.G. § 1B1.3(a)(2). Several factors are considered when 

determining whether uncharged conduct is part of “the same 

course of conduct or common scheme or plan,” including “the 

nature of the defendant’s acts, his role, and the number and 

frequency of repetitions of those acts.” Pauley, 289 F.3d at

259 (quotation omitted). Additionally, we evaluate the 

“similarity, regularity and temporal proximity between the 

offense of conviction and the uncharged conduct.” Id. 

 We review 

factual findings made at sentencing for clear error. United 

States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002). 

The district court did not err in finding that the $20,000 

check was part of a “common scheme or plan” with the charged 

conduct. Like the more than forty stolen checks successfully 

cashed by Lee, the record reflects that the $20,000 check had 

 2 The district court’s finding as to the $20,000 check had 

the effect of raising Lee’s offense level under the sentencing 

guidelines from fourteen to sixteen. 
7

also been stolen and chemically washed to remove the original 

payee’s name. This is strong evidence that Lee’s role, purpose, 

and modus operandi were substantially the same with respect to 

the $20,000 check as with the successfully cashed checks. Lee’s 

attempt to distinguish this $20,000 check by emphasizing that it 

was a pre-printed business check rather than a hand-written 

personal check is unpersuasive.3

III.

 The district court properly 

considered the relevant factors under United States v. Pauley

and correctly concluded that the $20,000 check was part of a 

“common scheme or plan” pursuant to U.S.S.G. § 1B1.3. 

Accordingly, we affirm the sentence imposed by the district 

court.

For the aforementioned reasons, the judgment of the 

district court is

AFFIRMED.

 3 We also reject Lee’s arguments that the check be excluded

from the loss calculations because it was severely damaged and 

he had never tried to cash it. The Sentencing Guidelines 

provide that the amount of loss for determining sentencing 

enhancements is the greater of the actual or intended loss. 

U.S.S.G. § 2B1.1 cmt. n. 3(A) (2008). Intended loss is defined 

as “the pecuniary harm that was intended to result from the 

offense . . . and . . . includes intended pecuniary harm that 

would have been impossible or unlikely to occur.” Id. at § 

2B1.1 cmt. n. 3(A)(ii). We think that Lee’s alterations to and 

retention of the check, in conjunction with his well-established 

modus operandi, provided the district court with ample evidence 

to conclude that it was an intended loss under the check cashing 

scheme.