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 (WITH THE NOTATION ASUMMARY 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 25th 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.

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     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 counts of aggravated identity theft, see 

(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 court 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 and 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 procedural history of the case, and the issues presented for review.

    1. Double Jeopardy

        Alexander argues that his convictions for access card fraud and aggravated identity theft
violate the Double Jeopardy Clause because they relied 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, 

, 196 (2d Cir. 2010). In assessing such a claim, a court must determine
whether “each offense contains an element not contained in the other,” United States v. Dixon, 

, 696 (1993), and the focus is on the statutory elements, rather than on the facts used to
establish them, 

. The statutes at issue require proof of different
elements. Section 1029(a)(1) requires, inter alia, knowing use of a counterfeit access card, while
section 1028A requires, inter alia, knowing possession of a means of identification of another
person. Alexander’s knowing use of a fraudulent credit card embedded with another person’s
identity satisfied the elements of both crimes; but because those elements are distinct, his
convictions do not violate the 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 the district court did not err in its evidentiary

1
 Alexander moved to relieve his court-appointed counsel and to represent himself on this appeal,
which motion we granted on April 27, 2017.

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rulings. However, Alexander correctly asserts that he was tried in shackles without a requisite
finding of necessity. Because he did not object below, review is for plain error. See United
States v. Cassesse, 

, 188 (2d Cir. 2012).

        “[A] defendant may not be tried in shackles unless the trial judge finds on the record that
it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as
preserving the safety of persons in the courtroom,” and shackling is appropriate “‘only in the
presence of a special need.’” United States v. Haynes, 

, 188 (2d Cir. 2013) (quoting
Deck v. Missouri, 

, 626 (2005)). Under Deck, when a court orders a defendant to
wear shackles that will be visible to the jury, the shackling is presumptively prejudicial. 

; see also 

.

        Here, no finding of necessity was made on the 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, 

, 262 (2010) (stating that a plain error 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 quotation 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, 

, 288–89 (2d Cir. 2017)
(explaining that plain error requires, inter alia, that “the error ‘affected the appellant’s substantial
rights, which in the ordinary case means’ it ‘affected the outcome of the district court
proceedings’” (quoting 

)). Nevertheless, it bears emphasizing that a
finding of necessity is required before shackling a defendant at trial. See 

.

  3. Sentence

        Alexander challenges his sentence 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 court did not appropriately weigh the 18 U.S.C.
§ 3553(a) factors, giving them only a “passing mention.” Appellant’s Br. 60. Finally, he argues
that the district court failed to consider the 18 U.S.C. § 3584 factors in applying U.S.S.G. § 5G1.3.
Because Alexander did not object below, review is for plain error. United States v. Chibuko, 

, 262 (2d Cir. 2014).

         Section 1028A provides for a mandatory two-year sentence that must run consecutively to
any other sentence unless the other sentence is also for a violation of § 1028A, in which case, the
district court may exercise discretion in deciding whether to impose consecutive or concurrent
sentences. 18 U.S.C. § 1028A; 

(“If a defendant is convicted of more
than one offense under § 1028A, the only sentencing decision the court makes is whether the

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sentences for multiple § 1028A offenses will run concurrently 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 groupable under § 3D1.2, in which case the § 1028A
sentences should run consecutively; and (3) whether the § 3553(a)(2) factors are better achieved
by concurrent or consecutive sentences. 

(citing U.S.S.G. § 5G1.2).

         Here, the district court began by specifically referencing the three factors listed in § 5G1.2.
The district court discussed groupability, although it declined to impose the counts concurrently.

(“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 non-
exhaustive nature of Note 2(B), some other factor.” (alteration in original)). The court considered
the seriousness of the underlying offenses--specifically, 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 factors Congress ha[d] instructed it to consider,” and Alexander’s
contention that the district court wrongly imposed consecutive sentences is without merit. 

         Nor was Alexander’s sentence procedurally or substantively unreasonable based on the
district court’s treatment of the § 3553(a) factors. Our review for reasonableness is akin to a
‘“deferential abuse-of-discretion standard.’” United States v. Cavera, 

, 189 (2d Cir.
2008) (en banc) (quoting Gall v. United States, 

, 41 (2007)). We identify no such
abuse here. At sentencing, the district court stated that it had reviewed the PSR, the parties’
sentencing submissions, and the § 3553(a) factors; it listed the factors it considered when imposing
the sentence; and it imposed a sentence within the Guidelines range. See United States v. Perez-
Frias, 

, 43 (2d Cir. 2011) (“[I]n the overwhelming 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 under § 5G1.3 by
imposing his term of imprisonment to run consecutively with any sentence on his parole violation.
The argument is without merit. First, under § 5G1.3, “the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged
term of imprisonment to achieve a reasonable punishment 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 court 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 stated that it considered the parole violation a “separate and distinct”
matter. App’x at 490. As recounted above, the court discussed the factors that influenced its
sentencing decision. Accordingly, the record does not suggest that the district court failed to
consider its discretion to sentence Alexander consecutively to any pending parole violation, nor
did the court fail to explain its reasoning.

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       We have considered all of Alexander’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




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