United States v. Abdoulaye Barry

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12101

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABDOULAYE BARRY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cr-00385-ELR-JSA-5

____________________

Before WILLIAM PRYOR, Chief Judge, and GRANT and KIDD, Circuit

Judges.

KIDD, Circuit Judge:

Abdoulaye Barry and his codefendants used shared stolen

credit cards and shared memberships at a popular warehouse store

to purchase large amounts of cigarettes. As a result, they were

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2 Opinion of the Court 23-12101

charged with several fraud offenses. Barry alone went to trial, and

a jury convicted him of a subset of the offenses. At sentencing, the

district court held Barry accountable for the total amount that he

and his codefendants charged on the shared credit cards without

first determining the amount for which Barry himself should be re-

sponsible. That was a legal error. So we vacate Barry’s sentence

and remand the case to the district court for resentencing.

I. BACKGROUND

Barry and his codefendants used stolen credit cards to pur-

chase over $2 million in cigarettes from Sam’s Club, a membership-

based warehouse. Here is how the scheme worked:

Sam’s Club requires a personal or business membership to

shop in its stores. The coconspirators in this case opened business

memberships. For that type of membership, the person who opens

the account is the primary cardholder and the only person who can

make changes to the account. The primary cardholder can add sec-

ondary members to the account. A business membership requires

both photo identification and a government-issued business li-

cense. During the relevant timeframe, the Sam’s Club membership

card included a photograph of the member, which was taken in the

store.

The coconspirators obtained Sam’s Club memberships in

their names and aliases, and they sometimes provided fraudulent

tobacco licenses to do so. They then used the memberships and

stolen credit cards to buy cigarettes in large quantities.

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23-12101 Opinion of the Court 3

Barry was the primary account holder on two business

membership accounts, one for Enclave One Stop Shop and one for

Suwannee Smoke Shop. One codefendant also used the Enclave

One Stop Shop account, three codefendants used the Suwanee

Smoke Shop account, and one of those three was issued a member-

ship card for Suwanee Smoke Shop. Barry was a secondary mem-

ber on two other business accounts, which were for Sawalii Smart

Shop and Dominic Tobacco Shop. Three codefendants used the

Sawalii Smart Shop account, and three codefendants used the

Dominic Tobacco Shop account. Additionally, Barry used stolen

credit cards that were also used by other codefendants.

Barry and his codefendants faced an 85-count indictment in

the district court. Count 1 alleged that the group conspired to com-

mit credit card fraud, in violation of 18 U.S.C. § 1029(a)(2) and

(b)(2). Barry was also charged individually with six counts of credit

card fraud (Counts 62–67), in violation of 18 U.S.C. §§ 1029(a)(2)

and 2, and six counts of aggravated identity theft (Counts 68–73),

in violation of 18 U.S.C. §§ 1028A(a)(1) and 2. The government al-

leged that Barry used six victims’ credit cards, and each of the six

pairs of credit card fraud and aggravated identity theft charges cor-

responded to each victim.

After Barry’s codefendants pleaded guilty, Barry proceeded

to trial, which lasted four days. The government called five of the

six victims to testify at trial to establish that they had not made or

authorized the purchases at issue on their credit cards.

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4 Opinion of the Court 23-12101

After the government rested its case, the district court

granted Barry’s motion for a judgment of acquittal as to Counts 64

and 70 because the alleged victim, G.L., did not testify and there

was no other evidence that Barry’s use of the associated card was

unauthorized. Subsequently, the jury also acquitted Barry of

Counts 62 and 68, associated with alleged victim S.M. The jury

found Barry guilty of the remaining charges.

Prior to sentencing, a probation officer prepared a presen-

tence investigation report. The probation officer calculated the loss

amount as $539,131.79, which included losses caused by Barry’s

codefendants using the same stolen credit cards as Barry. The pro-

bation officer excluded from the loss amount transactions involv-

ing the use of S.M.’s and G.L.’s cards because Barry was acquitted

of the charges associated with those cards.

Barry objected to this loss calculation. At sentencing, the dis-

trict court heard argument from the parties regarding the loss

amount. The government argued for a loss amount in the

$550,000–$1,500,000 range of the Sentencing Guidelines, or alter-

natively, in the $250,000–$550,000 range. Barry argued that his loss

amount should be restricted to the transactions that he personally

made, which amounted to $117,261.98. Barry conceded that he was

in a conspiracy and that he was working with someone else, but he

contended that the government had not produced “any evidence

to show that [he] should have been aware that these other people

were using the same cards as him.”

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The district court stated the following when announcing the

decision on the loss amount:

I also overrule or reject the defendant’s objection that

he should essentially only be held accountable for the

count reflecting his own conduct, because I do find

that the government did prove a conspiracy existed

and the jury obviously did agree to that.

So I find that, in this case, conspiracy, which I find

equates to jointly undertaking criminal activity, leads

us to the conclusion that probation has reached,

which I agree with, and that is that 12 is the correct

number of levels to add for loss.

Therefore, the district court determined that the loss amount that

the probation officer calculated was correct.

The district court ultimately imposed a sentence of 69

months of imprisonment but left open the amount of restitution.

Barry then appealed his judgment. Subsequently, the district court

ordered Barry to pay restitution in the amount of $539,131.79—the

total disputed loss amount.

II. STANDARD OF REVIEW

We review questions of law arising under the Sentencing

Guidelines de novo. United States v. Huff, 609 F.3d 1240, 1245 (11th

Cir. 2010). We review “for clear error a factual finding regarding

the specific amount of restitution.” Huff, 609 F.3d at 1247.

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6 Opinion of the Court 23-12101

III. DISCUSSION

A. Loss Amount

The district court did not determine the loss amount at-

tributable to Barry individually, and the parties agree that this fail-

ure was in error. The Sentencing Guidelines require a defendant to

be held accountable for all acts that he “committed, aided, abet-

ted . . . or willfully caused.” U.S.S.G. § 1B1.3(a)(1)(A) (Nov. 2021).

In cases involving joint criminal activity, a defendant may also be

held accountable for the conduct of others, but only if that conduct

was (1) “within the scope of the jointly undertaken criminal activ-

ity,” (2) “in furtherance of that criminal activity,” and (3) “reasona-

bly foreseeable in connection with that criminal activity.” Id.

§ 1B1.3(a)(1)(B)(i)–(iii). Thus, “a district court may hold partici-

pants in a conspiracy responsible for the losses resulting from the

reasonably foreseeable acts of co-conspirators in furtherance of the

conspiracy.” United States v. Mateos, 623 F.3d 1350, 1370 (11th Cir.

2010) (citation modified).

But “to determine a defendant’s liability for the acts of oth-

ers, the district court must first make individualized findings con-

cerning the scope of criminal activity undertaken by a particular

defendant.” Id. (citation omitted); see U.S.S.G. § 1B1.3, cmt. (n.

3(B)). The district court thus committed a legal error when it con-

cluded that “conspiracy . . . equates to jointly undertaking criminal

activity” and then failed to make individualized findings. This is be-

cause the scope of the defendant’s jointly undertaken activity is not

necessarily the same as the scope of the entire conspiracy, so the

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23-12101 Opinion of the Court 7

relevant conduct for each coconspirator likewise is not necessarily

the same. U.S.S.G. § 1B1.3, cmt. (n. 3(B)).

Our precedents illustrate why this is reversible error. For in-

stance, in United States v. Medina, one of the defendants who re-

ceived kickbacks from a healthcare fraud scheme challenged the

calculation of her loss amount at sentencing, which included every

claim the conspirators had submitted to Medicare. 485 F.3d 1291,

1303 (11th Cir. 2007). We sent the case back for resentencing be-

cause we could not determine the factual basis for holding the de-

fendant responsible for every claim submitted to Medicare during

the conspiracy. Id. at 1304–05.

Similarly, in United States v. Hunter, the defendants chal-

lenged the district court’s loss calculation for their convictions

stemming from a counterfeit-check conspiracy. 323 F.3d 1314, 1316

(11th Cir. 2003). The district court found at sentencing that “a ring”

existed and that it would not be “unusual that the various partici-

pants in the ring would not necessarily know one another.” Id. at

1318. But the district court also found that it was “certainly reason-

ably foreseeable they would be aware of the fact they were partici-

pating in a larger scheme than their own individual conduct,” and

it held the defendants responsible for the larger amount of the con-

spiracy. Id. We determined that the district court erred in assessing

the defendants’ relevant conduct. Id. at 1320. Although the district

court found that the conduct was reasonably foreseeable, it did not

first identify the scope of the activity the defendants agreed to

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8 Opinion of the Court 23-12101

jointly undertake. Id. “Only after the district court makes individu-

alized findings concerning the scope of criminal activity the defend-

ant undertook is the court to determine reasonable foreseeability.”

Id. We vacated the sentence and remanded the case for particular-

ized findings about the scope of the defendants’ agreement to par-

ticipate in the fraudulent scheme and for resentencing. Id. at 1323–

24.

The rule is that a sentencing judge must make individualized

findings. “[W]ithout individualized findings concerning the scope

of [the defendant’s] involvement with the conspiracy, it cannot be

determined that [he] should be liable for some quantity less than

all.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).

But we recognize that we have also held that “a sentencing court’s

failure to make individualized findings regarding the scope of the

defendant’s activity is not grounds for vacating a sentence if the

record supports the court’s determination with respect to the of-

fense conduct, including the imputation of others’ unlawful acts to

the defendant.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.

2002) (citation modified); see also Pierre, 825 F.3d 1183, 1198 (11th

Cir. 2016) (holding that regardless of whether the district court

made individualized findings, the record supported the court’s de-

terminations); Mateos, 623 F.3d at 1370–71 (finding that the record

clearly supported the district court’s determination to hold the de-

fendant responsible for the entire loss amount). In each of these

cases, we found that the record clearly supported holding each of

the defendants accountable for the loss amounts at issue.

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23-12101 Opinion of the Court 9

Not so here. After careful review, we determine that the rec-

ord contains insufficient evidence for us to find that Barry neces-

sarily should be liable for the conspiracy’s entire loss amount.

The evidence at trial showed that opening a business mem-

bership account at Sam’s Club required a customer to go into the

store with a photo identification and business license. The person

who opens the account is the primary cardholder and the only per-

son who can add a secondary member to the account by bringing

that person into the Sam’s Club store. Barry was a primary account

holder for two business memberships.

The government presented evidence that several of Barry’s

coconspirators used these two accounts, but the evidence estab-

lished only that one coconspirator was a member of those accounts.

So there is insufficient evidence to allow us to infer that Barry, as

the primary account holder, necessarily accompanied the remain-

ing coconspirators to the Sam’s Club store to be added as second-

ary members to his accounts. Because of that deficiency, the gov-

ernment failed to tie these codefendants in time or place to Barry.

Similarly, while Barry had two secondary membership accounts,

he would have had to go with only the primary account holder to

be added to those accounts. The evidence does not establish that

he should have known of other secondary members or other users

of the accounts.

The government also failed to connect all of the credit card

charges to Barry. At trial, the government established that Barry

and his codefendants used the same stolen credit cards, sometimes

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10 Opinion of the Court 23-12101

within one day of each other. But we cannot reasonably infer from

shared usage that Barry knew about the other users and what they

were doing with the cards. While the evidence shows that Barry

was passing credit cards to someone, it does not reveal who that

someone was.

Our dissenting colleague reads these facts differently and be-

lieves that we must “[go] along with [Barry’s] narrative” about

someone named “John” to “reject as clearly erroneous the district

court’s factual finding that Barry and his codefendants jointly un-

dertook the scheme.” First, as we note above, the district court

committed a legal error by equating “jointly undertaken criminal

activity” with the scope of the entire conspiracy. The dissent at-

tempts to rehabilitate this error by interpreting the district court’s

statement to say that, “in this case,” the district court viewed the

two as being coterminous. The dissent then asserts that this inter-

pretation was a factual finding that we should review for clear er-

ror. We disagree with the dissent’s interpretation. The district

court’s statement that “conspiracy, which I find equates to jointly un-

dertaking criminal activity” (emphasis added) is simple to under-

stand—and legally incorrect. That the district court used the word

“find” when committing this error does not convert the legal con-

clusion into a factual finding.

After converting the district court’s conclusion, the dissent

goes on to make the individualized findings that it admits the dis-

trict court, erroneously, did not make—even though the parties

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23-12101 Opinion of the Court 11

discussed the conspiratorial acts at sentencing. In making its find-

ings, the dissent appears to draw inferences in favor of the govern-

ment rather than “[go] along with [Barry’s] narrative.” Yet it is not

Barry’s burden to prove loss amount. Medina, 485 F.3d at 1304

(“The amount of loss must be proven [by the government] by a

preponderance of the evidence, and the burden must be satisfied

with reliable and specific evidence” (citation modified)). Regardless

of what role “John” might have played in this scheme, to uphold

the district court’s sentence, we would have to find that the gov-

ernment connected Barry to each person and each credit card

charge in the conspiracy with reliable and specific evidence. We

cannot make that finding on the evidence presented, so we will

leave any such determination to the district court on remand.

In summary, the district court concluded that Barry was re-

sponsible for all the losses caused by his coconspirators without

considering whether those losses fell within the scope of the jointly

undertaken criminal activity that was reasonably foreseeable to

him. That conclusion was erroneous, so we vacate Barry’s sentence

and remand the case to the district court for resentencing. On re-

mand, the district court will have the opportunity to make individ-

ualized findings regarding the scope of the criminal activity that

Barry undertook, and only after doing so, what conspiratorial con-

duct was reasonably foreseeable to Barry.

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12 Opinion of the Court 23-12101

B. Restitution

The district court also ordered Barry and his codefendants

jointly to pay $539,131.79 in restitution. Barry argues that his or-

dered restitution should match his individual loss amount. Indeed,

the measure of restitution is each victim’s loss proximately caused

by the defendant. See United States v. Martin, 803 F.3d 581, 593–94

(11th Cir. 2015). On remand, the district court should also recon-

sider Barry’s restitution amount.

C. Clerical Error in the Criminal Judgment

Finally, there is a clerical error in Barry’s judgment, which

this Court may raise sua sponte and remand with instructions to

correct it. United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006).

The judgment states that, for Counts 71, 72, and 73, Barry was con-

victed of violating 18 U.S.C. §§ 1028(a)(1) and (2). But that is the

wrong statute. The aggravated identity theft statute is 18 U.S.C.

§ 1028A, not 1028(a). Therefore, on remand, the district court is di-

rected to enter an amended judgment that corrects this clerical er-

ror.

IV. CONCLUSION

We VACATE Barry’s sentence and REMAND to the district

court for resentencing in accordance with this opinion, as well as

to correct the clerical error in Barry’s judgment.

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23-12101 GRANT, J., Dissenting 1

GRANT, Circuit Judge, dissenting:

I respectfully disagree with the majority’s decision to

remand the case to the district court for resentencing. In my view,

the district judge made a factual finding that Barry and his

coconspirators embarked on a joint scheme to lie and steal, and it

did not clearly err in holding Barry responsible for the damage

done by his partners in crime.

“Whether a co-conspirator’s act was reasonably foreseeable

to the defendant so that it qualifies as relevant conduct is a question

of fact reviewed for clear error.” United States v. Valarezo-Orobio,

635 F.3d 1261, 1264 (11th Cir. 2011). And under clear error review,

the Court should affirm the sentence so long as it is “plausible in

light of the record viewed in its entirety” that the conduct at issue

was “part of the same common scheme or plan.” United States v.

Siegelman, 786 F.3d 1322, 1333 (11th Cir. 2015) (quotation omitted).

I agree with the majority that the district court’s statement

on this question “is simple to understand.” Majority Op. at 10. But

it is simpler still when one considers the complete quotation rather

than a partial one: “I find that, in this case, conspiracy, which I find

equates to jointly undertaking criminal activity, leads us to the

conclusion that” Barry is responsible for a higher loss amount.

Sentencing Tr. at 34 (emphasis added); see Majority Op. at 6. So

while the scope of “jointly undertaken criminal activity” will not

always be the same as the scope of an entire conspiracy, here the

district court made a factual finding that in this case, the two were

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2 GRANT, J., Dissenting 23-12101

coextensive. See U.S. Sentencing Guidelines § 1B1.3 cmt. n.3(B)

(Nov. 2021).

Refusing to accept this factual finding for what it is, the

majority insists that the district court committed “legal error” by

equating—as a matter of law—jointly undertaken criminal activity

and conspiracy. Majority Op. at 6–7, 10. Not so. Indeed, “the

record from the entire sentencing hearing” contradicts this

surprising assertion. See United States v. Suarez, 939 F.2d 929, 934

(11th Cir. 1991). To start, the presentence investigation report teed

up the “unresolved factual issue” of whether Barry and his

codefendants jointly undertook the scheme. And at the very

beginning of the sentencing hearing, the district court asked the

parties to present any objections to the “factual findings”

underlying the probation officer’s Guidelines range calculation.

Sentencing Tr. at 5. On the question of loss amount, both sides

went great lengths to highlight the evidence that supported their

view of the facts—including surveillance images, Sam’s Club

records, and witness testimony from Barry and others. See id. at 8–

34. Against this backdrop, the district court adopted the probation

officer’s findings on this “unresolved factual issue.”

The majority’s characterization of the district court’s

relevant conduct determination as a legal conclusion about all

conspiracies, rather than a factual finding about this conspiracy, is

also implausible because Barry did not object on those grounds at

the sentencing hearing. In fact, Barry concedes on appeal that “the

district court’s error in failing to make individualized findings as to

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23-12101 GRANT, J., Dissenting 3

loss can be overcome if the trial evidence supports its calculation.”

So the record reflects, and the parties agree, that the district court

made a factual conclusion that in this case the jointly undertaken

activity was the same as the conspiracy writ large. That conclusion

must therefore be reviewed for clear error.

That high standard is not met here. The facts do not show

a sprawling conspiracy with many moving parts; it was a petty get-

rich-quick scheme in which a crew used the same set of fake Sam’s

Club memberships and stolen credit cards to buy untaxed

cigarettes. The scope of the criminal activity goes no further than

that, and the district court did not clearly err by concluding that

Barry and his coconspirators jointly undertook that scheme.

No doubt—the sentencing court should have made

individualized findings about the scope of the activity that the

defendant and his coconspirators jointly agreed to undertake. See

United States v. Hunter, 323 F.3d 1314, 1320 (11th Cir. 2003). But as

the majority opinion recognizes, “a sentencing court’s failure to

make individualized findings regarding the scope of the defendant’s

activity is not grounds for vacating a sentence if the record

support[s] the court’s determination with respect to the offense

conduct, including the imputation of others’ unlawful acts to the

defendant.” United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir.

2002). So it is settled law: the absence of individualized findings

from the district court does not mean the sentence is vacated. It

means that we must evaluate the offense conduct determination

based on our view of the record evidence to decide whether the

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4 GRANT, J., Dissenting 23-12101

district court’s conclusion was clearly erroneous. 1 See United States

v. Moriarty, 429 F.3d 1012, 1021–22 (11th Cir. 2005); United States v.

Baldwin, 774 F.3d 711, 730–31 (11th Cir. 2014).

It was not. There was plenty of evidence for a reasonable

factfinder to infer that Barry knew what his coconspirators were up

to, and that they were all in on it together. To begin with, the

scheme was profitable precisely because it could operate at scale:

one fake tobacco license could support one fake primary business

membership; one fake primary membership could support up to

ten fake secondary memberships. Because Barry and his

coconspirators got their hands on many fake licenses, there were

lots of memberships to go around—each providing access to a

nondepletable supply of cheap cigarettes. And while cheap is good,

free is better. The evidence also shows that Barry and his

coconspirators used the same set of stolen credit cards to make

their tobacco purchases.

For his part, Barry played an outsized role in the scheme,

and the evidence reveals a web of connections. He was the primary

account holder for two fake businesses: “Enclave One Stop Shop”

and “Suwannee Smoke Shop.” Codefendants Ousmane Diallo,

Alimu Bah, and Sayon Bestman all used Barry’s primary accounts.

Diallo even joined one of those accounts as a secondary member.

Because Sam’s Club requires the primary account holder to

1 For that reason, the majority’s critique that my clear error analysis depends

on factual findings that the district court did not make falls flat. Majority Op.

at 10–11.

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23-12101 GRANT, J., Dissenting 5

accompany the secondary membership applicant, Diallo’s

secondary membership ties Barry and Diallo to the same time and

place. The district court could easily have inferred that by allowing

Diallo, Bah, and Bestman to use memberships associated with his

primary account, Barry knew that these codefendants would

become coconspirators. It was not just foreseeable—it was the

entire point of the scheme.

Codefendants Thierno Ly and Thierno Bah did not use

memberships associated with Barry’s primary accounts, but that

does not mean there were no ties. To the contrary, Ly, Bah, and

Barry all used secondary memberships belonging to the same

primary accounts: “Dominic Tobacco Shop” for Ly and Barry, and

“Sawalii Smart Shop” for all three men. Plus, all three used the

same set of stolen credit cards. Here too, the logical inference is

that Barry knew that Ly and Bah were his partners in the scheme.

The majority sees the record differently. It concludes that

the government did not present enough evidence to show that

Barry would or should have known that his codefendants were also

part of his scam—never mind that they used the same kind of

memberships to buy the same kind of products with the same

stolen credit cards, often on the same day and at the same location.

Majority Op. at 9–11. To be fair, Barry did offer a way around the

obvious inferences. As he explained it at trial, someone named

“John” operated the scheme as a hub-and-spoke, personally

providing him with fake business documents and stolen credit

cards before each purchase, and then collecting them right after.

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6 GRANT, J., Dissenting 23-12101

According to Barry, this “John” character would then hand them

over to the next participant in the scheme—but Barry himself

never took part in that transfer. All the while, he insisted, John kept

him and his codefendants in the dark about what the others were

doing.

If Barry’s story is true, then the obvious inferences from the

evidence presented at trial—all pointing to a joint undertaking

between Barry and his codefendants—would be disproved. But the

district court did not buy it, and I can see why.

First, Barry could not provide basic details about his alleged

boss. He even said he did not remember John’s last name, a curious

assertion since he also claimed that he often purchased cigarettes

with business memberships and credit cards bearing that name.

Second, Barry said he did not know how to get in touch with

John—even though John supposedly pulled all the strings and

would give him “eight to nine thousand dollars at a time in cash”

to buy cigarettes. How did he know when to meet John in the

parking lot? Barry did not say.

Third, in Barry’s telling, John paid him to do the dirty work

because it would have been suspicious for John to visit Sam’s Club

more than once. But this part of the story has serious holes in it

too: if John had a Sam’s Club business membership based on a retail

tobacco license, it would have been no more suspicious for him to

make frequent trips to buy cigarettes in bulk than it would have

been for Barry. Indeed, consistent with Sam’s Club policy allowing

members to “come in and shop the club as many times as [they]

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23-12101 GRANT, J., Dissenting 7

like throughout the year,” Barry testified that he made multiple

trips, often on the same day and often only a few minutes apart.

Yet he never explained why John needed him to serve as a

middleman, or why it seemed less suspicious for Barry to use an

account bearing someone else’s name to make large repeat

purchases.

Fourth, Sam’s Club records show that Barry and his

coconspirators often shopped at the same stores on the same day,

sometimes within minutes of each other and swiping the same

stolen credit cards. For example, on the night of October 30, 2019,

Barry went shopping with Diallo at the Sam’s Club in Duluth:

Barry made two back-to-back purchases totaling $7,157 on a stolen

Capital One credit card; and seven minutes later, Diallo completed

a $5,371 transaction. Thierno Bah joined the crew two days later

at the Sam’s Club in Alpharetta. Around noon, Bah made a $9,054

purchase with the same stolen Capitol One credit card that Barry

used just a few days earlier in Duluth. Barry followed up four

minutes later with a $7,271 transaction. And just 45 minutes after

that, Diallo charged $2,674 to the stolen Capitol One credit card

that Bah used less than an hour earlier.

It’s no coincidence that the three men stood in the same

checkout line and swiped the same set of stolen credit cards. And

it’s no coincidence that police apprehended Diallo inside Barry’s

car not long after. Unable to account for abundant record evidence

tying him to his business partners, Barry’s fiction about “John” rests

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8 GRANT, J., Dissenting 23-12101

on a thoroughly “unimpressive account of events.” United States v.

Rivera, 780 F.3d 1084, 1098 (11th Cir. 2015).

Barry’s story simply does not add up. But unless this Court

goes along with his narrative, I cannot see why we would reject as

clearly erroneous the district court’s factual finding that Barry and

his codefendants jointly undertook the scheme. Inferences like the

ones above “are a staple of our adversary system of factfinding.”

Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 156 (1979). Evidence

is evidence. And whether it is “reliable and specific” does not turn

on whether it proves a fact directly or by way of inference.

Majority Op. at 11.

In short, that some of the evidence here is circumstantial

does not excuse the majority’s failure to consider it. Clear error

review is deferential and “imposes an especially heavy burden on

the appellant.” Lincoln v. Bd. of Regents of Univ. Sys. of Ga., 697 F.2d

928, 939 (11th Cir. 1983). After all, “the district court had the

advantage of observing the witnesses and evaluating their

credibility firsthand.” Id. Barry does not come close to showing

reversible error by the district court, and I respectfully dissent.