USA v. Luke Joselin

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13739
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUKE JOSELIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cr-60028-WPD-1
____________________
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2 Opinion of the Court 22-13739
Before W ILLIAM P RYOR , Chief Judge, and N EWSOM and A NDERSON ,
Circuit Judges.
PER CURIAM:
Luke Joselin appeals his convictions and sentence for con-
spiring to commit and committing wire fraud, 18 U.S.C. §§ 1349,
1343, and aggravated identity theft, id. § 1028A(a)(1). Joselin argues
that insufficient evidence supports his conviction for aggravated
identity theft and that the district court erred by admitting bad-
character evidence, Fed. R. Evid. 404(b). He also argues, for the
first time on appeal, that the loss calculation supporting his en-
hanced advisory sentencing range failed to adhere to Kisor v. Wilkie,
139 S. Ct. 2400 (2019), and United States v. Dupree, 57 F.4th 1269
(11th Cir. 2023) (en banc), because the district court relied on the
commentary to the Sentencing Guidelines to consider his intended
loss instead of actual loss. United States Sentencing Guidelines
Manual § 2B1.1, cmt. n.3(A) (Nov. 2021). We affirm.
I. BACKGROUND
A grand jury indicted Joselin for one count of conspiring to
commit wire fraud, 18 U.S.C. § 1349, nine counts of wire fraud, id.
§ 1343, and two counts of aggravated identity theft, id.
§ 1028A(a)(1). The indictment alleged that between May and Au-
gust 2020, Joselin conspired with Renaldo Harrison and Judlex Jean
Louis to submit fraudulent loan applications to the Paycheck Pro-
tection Program. The conspirators allegedly shared stolen personal
identification information to prepare fraudulent loan applications
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22-13739 Opinion of the Court 3
in the victims’ names. The two aggravated identity theft counts
were based on the alleged use of J.C.’s name and driver’s license
and T.D.’s name and social security number in fraudulent loan ap-
plications. Joselin pleaded not guilty to all charges.
Before trial, the government notified Joselin of its intent to
introduce “inextricably intertwined and [Rule] 404(b) evidence” of
his involvement in another fraudulent loan scheme with the Eco-
nomic Injury Disaster Loan program. The government also pro-
vided notice of its intent to present testimony from Jean Louis that
before 2020 he and Joselin jointly possessed multiple victims’ stolen
personal information, including T.D.’s information, and that the
“pair always intended to use this [information] for fraud and that
the [paycheck program] just provided the best opportunity.” The
government argued that this evidence was inextricably intertwined
with the setup of the charged offenses because it established that
Joselin knowingly used T.D.’s real information to submit the fraud-
ulent loan application. After the district court deferred ruling on
the admissibility of this evidence, the government agreed to proffer
the testimony outside the jury’s presence.
At trial, the government presented testimony about the
paycheck loan program. The program was “designed and funded
to offer forgivable loans to business owners in America to help
them pay their employees” through the COVID-19 pandemic. The
Small Business Administration administered the program but al-
lowed private lenders to manage the loan application and disburse-
ment process. Applicants submitted proof of eligibility and certified
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4 Opinion of the Court 22-13739
the veracity of their application under penalty of fine or imprison-
ment.
Harrison testified that around May 2020 Joselin told him
about an opportunity to obtain money through the paycheck loan
program. Harrison provided Joselin with the necessary documents,
including his driver’s license and social security number, and Jose-
lin submitted the application for a 15 percent fee. Harrison agreed
to work with Joselin on another application for one of Harrison’s
companies by falsifying payroll information. Harrison later pleaded
guilty to conspiring to commit and committing wire fraud.
Jean Louis testified about his role in the scheme. After meet-
ing Joselin in 2005, the two lived together briefly until 2006 and
again between 2016 and 2019. Jean Louis worked at one of Joselin’s
companies, 24Hour Printing, between 2017 and 2020, and received
cash or digital payments. In March 2020, Joselin said that he had
obtained a paycheck loan under his own name and that he intended
to submit a second application using a fictitious social security
number. Joselin recruited Jean Louis to apply for a loan using Jean
Louis’s real name and inactive company, Pricerite, and a fictitious
social security number. The pair then “continued a scheme to sub-
mit applications in different victims’ names, using [the victim’s]
driver’s license and Social Security number” obtained from a gov-
ernment website. Jean Louis’s job was to research and send the
documents Joselin asked for, while Joselin’s job was to edit the doc-
uments and submit the loan applications.
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22-13739 Opinion of the Court 5
Jean Louis testified about two fraudulent applications that
he and Joselin filed for J.C., who was Jean Louis’s girlfriend, and
T.D., who was a stranger. Jean Louis provided Joselin with J.C.’s
real name, address, and driver’s license but supplied a fictitious so-
cial security number because she did not know about the loan ap-
plication. When Jean Louis began testifying about the fraudulent
application for T.D., using her real name and social security num-
ber, the government requested a sidebar based on the earlier Rule
404(b) ruling. The government stated its intent to ask Jean Louis
when and how he obtained T.D.’s personal information and why
he shared T.D.’s information with Joselin. The government antici-
pated that Jean Louis would testify that he “obtained the infor-
mation a long [time] ago, in the early 2000s; that he obtained it un-
lawfully; that he then shared it soon thereafter with [Joselin]; and
that he did so for the purpose of committing other fraud with [Jose-
lin].” The district court instructed the government to “just indicate
that [Jean Louis] had obtained this information before he had given
it to [Joselin] without indicating that it was for fraudulent means.”
Jean Louis testified that he obtained T.D.’s personal infor-
mation in 2005 and sent her information to Joselin “soon thereaf-
ter.” Jean Louis again supplied T.D.’s information to Joselin in 2020
for the loan application. At some point, Joselin sent Jean Louis a
text message asking for a “CPN,” meaning a fictitious social secu-
rity number. A later text message referenced “Jude,” meaning an
application using Jean Louis’s real name and social security num-
ber, and “Jude CPN,” meaning an application using his real name
but a fictitious social security number.
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6 Opinion of the Court 22-13739
On cross-examination, Jean Louis explained that he sent an
e-mail titled “[J.C.]” and containing J.C.’s real information to an
e-mail account that he and Joselin shared. Jean Louis also sent an
e-mail titled “[T.D.],” without a “CPN” designation, to the shared
e-mail account for Joselin to access. After Jean Louis’s arrest, offic-
ers found several victims’ identification in his home. Jean Louis
pleaded guilty to bank fraud and aggravated identity theft of J.C.
On re-direct examination, the prosecutor asked Jean Louis
whether he told Joselin that he did not have T.D.’s or J.C.’s permis-
sion to use their information. Jean Louis answered:
Joselin had knowledge of everything that was going
on. He knows that I did not have permission to use
any of those [sic] information that I had, and he
know[s] that I obtained those [sic] information that I
had fraudulently, and he still encourage[d] me and in-
dulge[d] in submitting those applications for the
fraudulent PPP loans.
After the prosecutor asked whether Jean Louis had “any reason at
all to believe that Mr. Joselin thought that [J.C.] or [T.D.] had given
you permission to use their identities,” he answered in the nega-
tive:
Absolutely not. Mr. Joselin knew those documents
and information I had were obtained fraudulently.
And those were obtained—some of them were ob-
tained in 2005 and stored in emails just for those pur-
poses.
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22-13739 Opinion of the Court 7
After Joselin objected and the district court sustained his objection,
Joselin did not request a curative instruction, ask the district court
to strike Jean Louis’s testimony, or move for a mistrial.
Ricardo Pena, an economic crimes detective and U.S. Secret
Service task force officer, testified that, based on his investigation
and experience, “CPN” means a false social security number. Pena
believed that Joselin knew he was committing fraud and “kn[ew]
what he was doing” because his communications with Jean Louis
about identities used for loan applications referenced “CPN.”
Joselin moved for a judgment of acquittal on both counts of
aggravated identity theft because J.C.’s and T.D.’s identifications
were found in Jean Louis’s possession. Fed. R. Crim. P. 29. After
the district court denied the motion, Joselin declined to testify and
renewed his motion for a judgment of acquittal, which was denied.
The district court then cautioned the jury on Rule 404(b) evidence:
During the trial, you heard evidence of acts allegedly
done by the defendant on other occasions that may
be similar to acts with which the defendant is cur-
rently charged. You must not consider any of this ev-
idence to decide whether the defendant engaged in
the activity alleged in the indictment. This evidence
is admitted and may be considered by you for the lim-
ited purpose of assisting you in determining whether
the defendant had the state of mind or intent neces-
sary to commit the crime charged in the indictment,
or the defendant had a motive or an opportunity to
commit the acts charged in the indictment, or the de-
fendant acted according to a plan or in preparation to
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8 Opinion of the Court 22-13739
commit a crime, or the defendant committed the acts
charged in the indictment by accident or mistake.
The jury acquitted Joselin of aggravated identity theft of J.C.
and found him guilty of the remaining counts. Joselin moved for a
new trial, Fed. R. Crim. P. 33, based on Jean Louis’s testimony
about Joselin’s involvement in obtaining T.D.’s information. The
district court denied Joselin’s motion for a new trial and agreed
with the government that the testimony was inextricably inter-
twined with the charged counts and, in any event, was admissible
under Rule 404(b) for multiple non-propensity purposes.
Joselin’s presentence investigation report provided a base of-
fense level of seven, U.S.S.G. § 2B1.1(a)(1), added 18 levels based
on the calculation that he was responsible for $3.6 million in in-
tended losses, id. § 2B1.1(b)(1)(J), added two levels for using sophis-
ticated means, id. § 2B1.1(b)(10)(C), and added two levels for his
role as the organizer or leader of the scheme, id. § 3B1.1(c). With a
total offense level of 29 and criminal history category of I, Joselin’s
advisory guideline range was 87 to 108 months of imprisonment
plus a consecutive two years of imprisonment for the aggravated
identity theft conviction.
After Joselin objected that he was responsible for a loss
amount of $477,533, the government notified the probation officer
that the correct intended loss amount was $1,955,479, based on
$842,543 from the wire fraud counts plus $1,112,936 from Joselin’s
relevant conduct of submitting additional fraudulent loan applica-
tions to both the paycheck loan and the economic injury loan
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22-13739 Opinion of the Court 9
programs. Based on the recalculated loss amount and a total of-
fense level of 27, Joselin’s advisory guideline range became 70 to
87 months followed by two years of imprisonment.
At sentencing, Joselin argued that he was responsible for an
actual loss amount of $477,533, and the intended loss calculation
should not include his uncharged relevant conduct. But he clarified
that he had no objections to the government’s exhibit that calcu-
lated a total intended loss amount of $1.9 million based on charged
and uncharged relevant conduct. The district court determined
that the loss amount was $1.9 million because intended loss could
be counted under the Guidelines and could include uncharged rel-
evant conduct. Joselin objected that considering loss amounts tied
to uncharged relevant conduct violated due process.
The government requested a total sentence of 94 months
and argued that Joselin’s conduct was “above the run-of-the-mill
type” of conduct common in these loan schemes. The district court
heard Joselin’s allocution and argument that the statutory sentenc-
ing factors, 18 U.S.C. § 3553(a), warranted a downward variance
due to his health issues, community ties, and codefendants’ sen-
tences. The district court varied downward and sentenced Joselin
to 60 months of imprisonment for the wire fraud counts and a con-
secutive 24 months for the aggravated identity theft count.
II. STANDARDS OF REVIEW
Three standards govern our review. We review the suffi-
ciency of the evidence de novo, viewing “the evidence in the light
most favorable to the government, with all inferences and
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10 Opinion of the Court 22-13739
credibility choices drawn in the government’s favor.” United States
v. Feldman, 931 F.3d 1245, 1253, 1257 (11th Cir. 2019) (quotation
marks omitted). The evidence will be sufficient to sustain a convic-
tion unless “no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” United States v. Shabazz, 887 F.3d 1204,
1221 (11th Cir. 2018). We review rulings on the admissibility of ev-
idence for abuse of discretion. Id. at 1216. We review a sentencing
challenge raised for the first time on appeal for plain error. United
States v. Ramirez-Flores, 743 F.3d 816, 821–22 (11th Cir. 2014). Under
that standard, Joselin must prove that the district court committed
an error that is plain and that affects his substantial rights. See id.
III. DISCUSSION
We divide our discussion in three parts. First, we explain
that sufficient evidence supports Joselin’s conviction for aggravated
identity theft of T.D. Second, we reject Joselin’s argument that the
district court erred by admitting Jean Louis’s testimony about
T.D.’s information. Third, we explain that Joselin’s challenge to the
loss calculation based on Kisor and Dupree fails on plain error review
and that the loss calculation is reasonable.
A. Sufficient Evidence Supports Joselin’s Conviction for Aggravated
Identity Theft of T.D.
Joselin argues that the government failed to present suffi-
cient evidence that he knew T.D.’s identification belonged to a real
person. To convict Joselin of aggravated identity theft, the govern-
ment had to prove that he “knew that the identity [used in the
scheme] belonged to a real person.” United States v. Gomez-Castro,
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22-13739 Opinion of the Court 11
605 F.3d 1245, 1248 (11th Cir. 2010); see 18 U.S.C. § 1028A(a)(1).
Means of identification includes “a name, social security number,
date of birth, or driver’s license number, among other things.”
United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011).
“[K]nowledge can be inferred reasonably based on ordinary human
experience for which no special proof is required; a trier of fact can
rely on common sense.” Gomez-Castro, 605 F.3d at 1249.
Sufficient evidence supports Joselin’s conviction for aggra-
vated identity theft of T.D. The government introduced evidence
that Joselin submitted a fraudulent loan application using T.D.’s
name and social security number and that all Joselin’s fraudulent
loan applications were submitted under the names of real people,
including himself, Jean Louis, Harrison, and J.C. A reasonable jury
could have found that, based on Joselin’s pattern of submitting ap-
plications under the names of real people, he would not have sub-
mitted an application under T.D.’s name to the loan processors had
he not believed that T.D. was a real person. See id.
The government also introduced evidence that Jean Louis
and Joselin shared identities that were ready to be used for fraudu-
lent loan applications through a shared e-mail account, and Pena
and Jean Louis testified about the unique naming conventions used
to designate which identity profiles were real and which profiles
contained fictitious information. Jean Louis sent J.C.’s real infor-
mation to Joselin in e-mails with the subject lines “[J.C.]” and “[J.C.]
Checking account” and “[J.C.] Savings account.” Jean Louis ex-
plained that he and Joselin used “CPN” to refer to identity profiles
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12 Opinion of the Court 22-13739
that contained fictitious social security numbers, such as “Jude
CPN.” Jean Louis also explained that a reference to “Jude,” without
the “CPN” designation, referred to his identity profile using his real
social security number. The government then introduced evidence
that Jean Louis sent an e-mail containing T.D’s real information to
the shared account for Joselin to access, and the e-mail subject line
was “[T.D.],” without the “CPN” designation. A reasonable jury
again could infer that Joselin understood that the “[T.D.]” e-mail
contained T.D’s real identifying information, which he then used
to file a fraudulent loan application.
B. The District Court Did Not Abuse its Discretion Regarding Jean
Louis’s Unsolicited Remark.
Joselin argues that Jean Louis’s testimony that he stole and
sent T.D.’s information to Joselin for a shared fraudulent purpose
long before the charged offense was inadmissible under Federal
Rule of Evidence 404(b). He argues that, by continuing to press
Jean Louis after the sidebar ruling, the government elicited preju-
dicial testimony and the district court erred by failing to strike the
testimony or provide a limiting instruction.
The district court did not abuse its discretion. The district
court instructed the government not to ask Jean Louis whether, in
2005, he shared T.D.’s information with Joselin for a fraudulent
purpose. The government followed that instruction, and after it
asked Jean Louis whether it was possible that Joselin could have
believed Jean Louis had permission to use J.C.’s or T.D.’s infor-
mation, Jean Louis said no. He then made the unsolicited remark
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22-13739 Opinion of the Court 13
that some identities, though he did not specify whose, were ob-
tained and stored for fraudulent reasons as early as 2005.
Joselin complains that after he successfully objected to Jean
Louis’s remark, the district court failed to strike sua sponte the re-
mark or provide a curative instruction, but he never requested ei-
ther form of relief. Nor did he move for a mistrial based on the
testimony. See United States v. Mosquera, 886 F.3d 1032, 1046 (11th
Cir. 2018); United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir.
2009) (holding that the district court did not abuse its discretion by
failing to issue sua sponte a curative instruction to a witness’s stray
prejudicial remark because “the comment was but a brief refer-
ence . . . and a curative instruction could have drawn unwarranted
attention to the comment” (quotation marks omitted)). The dis-
trict court also reduced the risk of prejudice by cautioning the jury
that it could not consider evidence that Joselin allegedly engaged
in similar uncharged acts as evidence that he engaged in the
charged offenses.
C. The District Court Did Not Plainly Err by Considering Intended Loss.
Joselin argues for the first time that the district court erred
in the light of Kisor and Dupree because the term “loss” in the guide-
line, U.S.S.G. § 2B1.1(b)(1), unambiguously refers to actual loss, so
the district court could not defer to the commentary that “loss”
means the “greater of actual loss or intended loss,” id. § 2B1.1(b)(1),
cmt. n.3(A). Because Joselin never argued in the district court that
“loss” in section 2B1.1(b)(1) is unambiguous nor challenged relying
on the commentary, but instead argued without elaboration that
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14 Opinion of the Court 22-13739
he should be responsible only for the actual loss, we review this
new argument for plain error. United States v. Verdeza, 69 F.4th 780,
794 (11th Cir. 2023).
In Kisor, the Supreme Court held that a district court should
defer to an agency’s interpretation of a regulation “only if a regula-
tion is genuinely ambiguous. . . . even after a court has resorted to
all the standard tools of interpretation.” 139 S. Ct. at 2414. We held
in Dupree that Kisor’s clarification applies to the Sentencing Guide-
lines and that the commentary cannot deviate from an unambigu-
ous guideline. 57 F.4th at 1275, 1277. In other words, district courts
may not defer to commentary “if uncertainty does not exist in the
Guideline.” Id. at 1275 (quotation marks omitted).
The district court did not plainly err in considering the com-
mentary to find Joselin’s loss amount based on his intended loss.
To be plain, an error must have been specifically resolved by con-
trolling precedent or by the clear language of a statute or rule. See
United States v. Sanchez, 940 F.3d 526, 537 (11th Cir. 2019). Our prec-
edent requires district courts to consider the amount of intended
loss in calculating the loss attributable to the defendant. See United
States v. Moss, 34 F.4th 1176, 1190–92 (11th Cir. 2022); United States
v. Orton, 73 F.3d 331, 333 (11th Cir. 1996). And we recently ex-
plained that Dupree “did not specifically and directly resolve the
question of whether § 2B1.1’s definition of loss is ambiguous.”
Verdeza, 69 F.4th at 794 (quotation marks omitted, alteration
adopted). Because our precedent required the district court to
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22-13739 Opinion of the Court 15
consider intended loss in determining Joselin’s loss amount, see id.,
Joselin cannot establish that the district court plainly erred.
Joselin further argues that his sentence is unreasonable be-
cause the district court considered uncharged relevant conduct to
hold him responsible for a loss amount of $1.9 million, but we dis-
agree. We have held that relevant uncharged or acquitted conduct
may be considered in sentencing, so long as the government proves
that conduct by a preponderance of the evidence and the district
court applies the Sentencing Guidelines as advisory. See United
States v. Wilson, 788 F.3d 1298, 1317 (11th Cir. 2015). Joselin failed
to dispute the accuracy of the loss calculation, so he cannot argue
that the government failed to prove his relevant uncharged con-
duct by a preponderance of the evidence. See United States v. Wade,
458 F.3d 1278, 1277 (11th Cir. 2006). The district court did not treat
the Guidelines as mandatory in varying downwards. See Wilson,
788 F.3d at 1317. And the inclusion of Joselin’s relevant uncharged
conduct did not increase his statutory minimum or maximum sen-
tence. See United States v. Charles, 757 F.3d 1222, 1225 (11th Cir.
2014). Joselin’s sentence is reasonable.
IV. CONCLUSION
We AFFIRM Joselin’s convictions and sentence.
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