                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4135


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

AMADOU BALDE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:13-cr-00075-BR-2)


Submitted:   April 30, 2015                 Decided:   June 18, 2015


Before KEENAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Amadou     Balde       appeals        from      his      convictions        and    70-month

sentence imposed pursuant to a jury verdict finding him guilty

of   conspiracy        to    use     counterfeit           access      devices,    as    well   as

substantive       counts        of    use    of       a    counterfeit          access   device,

possession       of    counterfeit          access         devices,       and    possession      of

access device making equipment.                       On appeal, Balde’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    asserting         that     there       are       no    meritorious       issues      for

appeal but raising six issues for this court’s consideration.

Balde has filed a pro se supplemental brief, addressing some of

the same issues and raising two additional claims.                                       After a

thorough review of the record, we affirm.



                                                      I.

      Balde contends that the district court’s admission of prior

bad acts dating as far back as 2004 was so prejudicial as to

deprive    him    of     a   fair     trial.           Balde’s         co-conspirator,        Shiek

Fofanah,     testified          against       him         at     trial.         During    cross-

examination,          counsel      asked     Fofanah           about     his     knowledge      and

expertise    with       similar        crimes         prior       to    meeting    Balde.       On

redirect, the Government asked, without objection, about Balde’s

prior   knowledge.            Balde     contends           that    the    admission      of   this

evidence of his conduct as far back as 2004 amounted to evidence

                                                  2
of “bad character” and was so prejudicial as to deprive him of a

fair trial.       We normally review the district court’s evidentiary

rulings for abuse of discretion.                   United States v. Aramony, 88

F.3d 1369, 1377 (4th Cir. 1996).                  However, by failing to object

to the admission of the evidence during trial, Balde has failed

to   preserve     his      objection.      Fed.     R.    Evid.   103(a)(1);         United

States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996).                           The admission

of the evidence is therefore reviewed for plain error.                            Chin, 83

F.3d at 87.

       The challenged testimony is vague and, at most, infers that

Balde purchased cigarettes with re-encoded cards a couple of

months prior to the instant crimes and that he committed similar

crimes    as   far    back    as   2004.         This    evidence    is    part    of    the

foundation for the current conspiracy charges, as it explains

why Fofanah and Balde would partner with each other.                           See United

States v. Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (permitting

prior bad act evidence that provided context).                        Similarly, the

challenged        evidence     that     Balde      was     engaged        in   the      same

activities as far back as 2004 and utilized the same manner and

method to      re-encode cards was admissible to “complete the story

of the crime on trial,” see id., especially given that Balde’s

strategy was to portray himself as an innocent bystander.                            Thus,

Rule     404(b)      did    not    mandate       exclusion     of    the       challenged

testimony.

                                             3
     Balde    also    contends     that,        even       if   the     evidence   was

admissible under Rule 404(b), it should have been excluded under

Rule 403, because the probative value of the evidence did not

outweigh its prejudicial effect.               He asserts that the admission

of   evidence    of   his   misconduct             years    before      the    charged

conspiracy tainted his right to a fair trial.                         Evidence should

be excluded under Rule 403 only in rare cases because the policy

of the Federal Rules is that all relevant evidence should be

admitted.     See United States v. Cooper, 482 F.3d 658, 663 (4th

Cir. 2007).      The fact that the challenged evidence will damage

the defendant’s case is insufficient to render it inadmissible;

rather, to be excluded under Rule 403, the evidence must cause

“‘unfair’     prejudice,”        and     the        “unfair       prejudice        must

‘substantially’       outweigh         the      probative        value        of   the

evidence.”      United States v. Grimmond, 137 F.3d 823, 833 (4th

Cir. 1998) (quoting Fed. R. Evid. 403).                     Here, the challenged

evidence was relevant to the history of the formation of the

conspiracy, as well as Balde’s motive, intent and knowledge.                        We

conclude that the evidence, while harmful to Balde’s defense,

was not unfairly prejudicial.                Accordingly, the district court

did not err, plainly or otherwise, in admitting it.



                                             II.



                                         4
       Balde also asserts that the district court erred in denying

his Fed. R. Crim. P. 29 motion for judgment of acquittal because

the Government’s evidence was insufficient to establish that he

was involved with or knew about the counterfeit access devices.

We review the denial of a Rule 29 motion de novo.                           See United

States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).                            When a

Rule 29 motion is based on a claim of insufficient evidence, the

jury’s    verdict    must     be    sustained       “if    there     is   substantial

evidence, taking the view most favorable to the Government, to

support it.”     United States v. Abu Ali, 528 F.3d 210, 244 (4th

Cir.   2008)   (internal      quotation      marks,       brackets    and    citations

omitted).       We     may    not   weigh     the    evidence        or   review   the

credibility of the witnesses.               See United States v. Allen, 491

F.3d 178, 185 (4th Cir. 2007).                  A defendant challenging the

sufficiency of the evidence faces a heavy burden.                           See United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

       Here, neither Balde nor counsel focus on specific elements

of the convictions.           Instead, they argue that the Government’s

case rested on Fofanah’s testimony and that this testimony was

neither     credible    nor     consistent.          Nonetheless,         the   jury’s

decision to credit Fofanah’s testimony that he and Balde were

involved in a scheme to use re-encoded cards to defraud various

banks and retailers was a credibility determination that should

not be disturbed on appeal.           See United States v. Moye, 454 F.3d

                                         5
390, 396 (4th Cir. 2006) (“[I]t was for the jury, not this

court, to decide which version of the events-the government’s or

Moye’s-was more credible.”); see also United States v. Saunders,

886   F.2d   56,    60   (4th     Cir.      1989)         (recognizing         that   witness

credibility is within the sole province of the jury and the

court will not reassess the credibility of testimony).

      Moreover,      Fofanah’s         testimony          was       corroborated      by     the

evidence that Balde avoided the police in order to dispose of

counterfeit    gift      cards,       and   that    Balde        was    in    possession      of

items   purchased        with     fraudulent         gift       cards.         Because       the

evidence     presented     was     sufficient            for    a    reasonable       jury    to

conclude     that   Balde       was    guilty       of    both       the     conspiracy      and

substantive charges, we will not disturb the jury’s verdict.



                                            III.

      Balde next challenges the district court’s denial of his

motion to substitute counsel and his motion for a new trial

based   upon   ineffective        assistance         of        counsel.        We   review     a

district court’s ruling on a motion to substitute counsel for

abuse of discretion.            United States v. Horton, 693 F.3d 463, 466

(4th Cir. 2012).          We consider three factors: the “[t]imeliness

of the motion; [the] adequacy of the court’s inquiry into the

defendant’s complaint; and whether the attorney/client conflict

was so great that it had resulted in total lack of communication

                                             6
preventing an adequate defense.”                United States v. Gallop, 838

F.2d 105, 108 (4th Cir. 1988).

       The district court conducted a thorough inquiry into the

conflict between Balde and his counsel.                   Balde appeared unaware

that his counsel had filed many of the motions that he was

requesting and was making progress on his other requests.                             In

fact, aside from his complaints that proved unfounded, Balde

stated that he was satisfied with counsel’s performance.                          While

Balde was dissatisfied with counsel’s communication with him, we

conclude that the disagreement was not sufficient to demonstrate

that    Balde      would     not     be   provided        an    adequate        defense.

Therefore, the district court did not abuse its discretion in

denying Balde’s motion to substitute counsel.

       Regarding      Balde’s   request       for   a   new    trial    based    on   his

allegations that counsel had prevented him from testifying on

his    own   behalf,    Balde      withdrew    this     motion.        The   court    had

appointed       him    independent        counsel       who     discussed       Balde’s

potential testimony with him and advised him regarding his trial

counsel’s strategy.           Thus, the record supports the conclusion

that Balde’s withdrawal of his motion was knowingly made after

consulting      with       independent     legal        counsel.         Accordingly,

contrary to Balde’s assertions, the district court did not deny

this motion.          Further, the district court did not abuse its



                                           7
discretion        in    conducting     the        hearing       and     accepting          the

withdrawal of the motion.



                                         IV.

        Balde further contends that the district court erroneously

calculated the loss amount for sentencing purposes because he

was held responsible for cards and account numbers that were not

connected to him and could not have been utilized and because

the district court erroneously relied upon the credit limit of

the cards and the potential loss, rather than the actual loss.

In assessing a challenge to the district court’s application of

the     Sentencing      Guidelines,     we        review      the     district    court’s

factual findings for clear error and its legal conclusions de

novo.        United States v. Alvarado Perez, 609 F.3d 609, 612 (4th

Cir.     2010).        The   amount    of        loss   can    be     supported       by    a

preponderance of the evidence.                    United States v. Miller, 316

F.3d 495, 503 (4th Cir. 2003).                   Further, “[t]he court need only

make     a     reasonable    estimate        of       the   loss,”      and     its    loss

determination “is entitled to appropriate deference,” given its

unparalleled access to the pertinent facts.                            U.S. Sentencing

Guidelines Manual § 2B1.1 cmt. n.3(C) (2013).

       Here,    Balde    contends     that       he   should    not    have    been    held

responsible for the cards possessed by Fofanah.                               Further, he

claims that he was not responsible for the account numbers on

                                             8
the computer seized from his hotel room, because such numbers

may   have    been    sold    to    multiple      people.            Pursuant   to   USSG

§ 1B1.3(a)(1)(B),       in    the    case    of       jointly   undertaken      criminal

activity,      a    defendant       is    responsible          for    “all   reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity, that occurred during the

commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or

responsibility for that offense.”                 Accordingly, as a participant

in the jointly undertaken criminal scheme, Balde is liable for

the loss or potential loss due to Fofanah’s cards, as well as

the potential loss based on the numbers found on the computer.

      Balde    also    contends      that       the    district      court   improperly

imputed to him the full credit limit of each card, rather than

conducting     an    individualized         investigation         into   the    intended

loss.    The district court, however, did not calculate the credit

limit    of   each    card;    instead,         the    court    added    together    the

realized losses and $500 for each account number or card.                              In

counterfeit access device cases, “loss includes any unauthorized

charges made with the counterfeit access device or unauthorized

access    device     and   shall     be     not   less     than       $500   per   access

device.”      USSG § 2B1.1 cmt. n.3(F)(i).                Thus, the court properly

included at least $500 for every number recovered and related to



                                            9
the    conspiracy.          Based    on    the       foregoing,        we    find   that    the

district court’s loss calculations were without error.



                                            V.

       Next, Balde maintains that the court erred when it applied

an enhancement under USSG § 2B1.1(b)(10)(C), which provides for

a two-level increase if (1) the defendant relocated a fraudulent

scheme to another jurisdiction to evade law enforcement, (2) if

a substantial part of the scheme was committed from outside the

United     States,    or    (3)     if    the    offense     involved         sophisticated

means.      The district court found that all three prongs were

satisfied by Balde’s scheme.                On appeal, Balde argues that the

evidence supporting the first two prongs was not presented at

trial or sentencing, and it was improper to rely only on the

presentence        report    (“PSR”).           As    for   the    third      prong,      Balde

conclusorily states that the scheme was not sophisticated.

       “Whether a defendant’s conduct involved sophisticated means

is    an   essentially      factual       inquiry,      thus      we    review      for   clear

error.”      United States v. Adepoju, 756 F.3d 250, 256 (4th Cir.

2014).       The    sophisticated         means       enhancement           applies   when   a

defendant     employs       “especially         complex     or    especially        intricate

offense conduct pertaining to the execution or concealment of an

offense.”      USSG § 2B1.1 cmt. n.9(B).                       While the scheme must

involve “more than the concealment or complexities inherent in

                                            10
fraud,”         Adepoju,     756     F.3d    at     257,     courts    can     find       that     a

defendant         used      sophisticated          means    even     where    he        did    “not

utilize         the   most    complex       means    possible.”        United           States    v.

Jinwright, 683 F.3d 471, 486 (4th Cir. 2012).                               Moreover, there

is    no    requirement        that     a    defendant’s          individual       actions        be

sophisticated; what matters is the sophistication of the scheme

as a whole.           Adepoju, 756 F.3d at 257; see Jinwright, 683 F.3d

at    486       (“A   sentencing      court        should     consider       the    cumulative

impact of the criminal conduct, for the total scheme may be

sophisticated in the way all the steps were linked together.”

(internal quotation marks omitted)).

           We    conclude     that    Balde’s        scheme    was    complex       enough        to

support the sophisticated means enhancement.                           Balde and Fofanah

not   only       obtained     hundreds        of    stolen    or    fraudulent          gift     and

credit card numbers, but also used many of them by transferring

the   numbers         to    stolen    cards    by     use    of    access     device          making

equipment.            The card numbers were obtained by email from an

individual in Indiana, who received them from overseas.                                        Balde

and   Fofanah         disguised      their     fraudulent         purchases        by    encoding

cards       with      the    stolen     credit        card     numbers,       making          their

purchases         appear     as    legitimate,        credible       transactions.               The

merchandise purchased with the re-encoded cards was first kept

in a storage unit and then sent to New York for sale.                                         These



                                               11
actions both facilitated the scheme and concealed it, making it

more complex than a typical credit card fraud scheme.

     Given         that        the        evidence         clearly            supported          the

“sophisticated          means”       prong     of    USSG        § 2B1.1(b)(10)(C),              the

Guideline    was     appropriately           applied.            As    only       one    prong    is

necessary    for        the    enhancement,          we     decline          to    address       the

district court’s findings regarding the remaining two prongs.



                                             VI.

     Balde also avers that his sentence was improperly enhanced

under     USSG    § 2B1.1(b)(11),            which        provides       for       a     two-level

increase when the offense involved the possession of device-

making     equipment          or    the    production        of        counterfeit          access

devices.         Balde     contends        that     this     enhancement               constituted

improper double counting because his crimes, through their very

nature, involved possessing device-making equipment.                                    Balde also

asserts that the device-making equipment belonged to Fofanah.

     “Double counting occurs when a provision of the Guidelines

is   applied       to     increase         punishment            on     the       basis     of     a

consideration       that      has    been    accounted           for    by    application         of

another      Guideline             provision        or      by         application         of      a

statute.”        United States v. Reevey, 364 F.3d 151, 158 (4th Cir.

2004).     “[T]here is a presumption that double counting is proper



                                               12
where    not    expressly      prohibited       by    the    guidelines.”          United

States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).

     Application        Note    10   to    USSG       §    2B1.1,    which      addresses

subsection      (b)(11),       contains    no     language      prohibiting        double

counting.        Moreover,      because    Balde’s          conviction    counts      were

grouped under USSG § 3D1.2(d), the Guidelines provide that “the

offense guideline applicable to the aggregate behavior is used”;

thus, the court “[d]etermine[s] whether . . . specific offense

characteristics or adjustments . . . apply based on the combined

offense behavior taken as a whole.”                  USSG § 3D1.3 cmt. n.3.

     Here,      Balde    both    possessed        device-making        equipment      and

produced       unauthorized       access        devices       and,    thus,       clearly

qualified      for   the     enhancement. *           Given     the      lack    of    any

prohibition in the Guidelines, we conclude that double counting

in this situation was not error.



                                          VII.

     Balde also contends that the district court should not have

imposed a two-level enhancement under USSG § 2B1.1(b)(2)(A)(1),

for a crime involving ten victims.                        Specifically, Balde avers

that the PSR only lists eight victims that suffered actual loss.


     *
       Even if Fofanah possessed the equipment, such possession
was foreseeable, and thus attributable to Balde.



                                           13
However, the PSR clearly lists ten victims.                              As Balde did not

object to this number in the district court, and the record

provides    no    reason    to    question       the    accuracy         of    the      PSR,   we

conclude that the district court did not err in applying the

enhancement.



                                         VIII.

      Finally, Balde objects to the overall reasonableness of his

sentence.    We review a sentence for reasonableness, applying an

abuse of discretion standard.               Gall v. United States, 552 U.S.

38,   46   (2007).         We    first   review     for       significant           procedural

error, and if the sentence is free from such error, we then

consider substantive reasonableness.                      Id. at 51.                Procedural

error   includes     failing       to    consider       the    18    U.S.C.         §   3553(a)

(2012) factors and failing to adequately explain the selected

sentence.        Gall, 552 U.S. at 51.                  To adequately explain the

sentence,    the     district       court        must    make       an    “individualized

assessment” by applying the relevant § 3553(a) factors to the

case’s specific circumstances.                   United States v. Carter, 564

F.2d 325, 328 (4th Cir. 2009).                    The individualized assessment

need not be elaborate or lengthy, but it must be adequate to

allow meaningful appellate review.                      Id. at 330.             Substantive

reasonableness is determined by considering the totality of the

circumstances,       and    if    the    sentence       is     within         the    properly-

                                            14
calculated      Guidelines         range,        we     apply        a     presumption            of

reasonableness.         United States v. Strieper, 666 F.3d 288, 295

(4th Cir. 2012).

     Balde does not provide specifics as to why his sentence is

unreasonable.        In imposing Balde’s sentence, the district court

did not provide a long explanation of the chosen sentence, but

nonetheless     it    was     clear      that      the       court       listened         to     and

considered Balde’s request for leniency.                             The court rejected

Balde’s   continuing        protestations          of    innocence             and    imposed      a

presumptively        reasonable       sentence          at     the       low       end    of     the

Guidelines      range.        We     conclude         that     Balde’s             sentence      was

procedurally and substantively reasonable.



                                          IX.

     In accordance with Anders, we have thoroughly reviewed the

record    and    find    no     other       meritorious             issues         for    appeal.

Accordingly,     we    affirm      the   district            court’s      judgment.            This

court requires that counsel inform her client, in writing, of

his right to petition the Supreme Court of the United States for

further   review.        If    the    client      requests          that       a     petition     be

filed,    but   counsel       believes      that      such      a    petition            would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.               Counsel’s motion must state that

a copy thereof was served on the client.                        We dispense with oral

                                            15
argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                       AFFIRMED




                                  16
