United States v. Cain , 355 F. App'x 758 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4038
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LENNY LYLE CAIN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:06-cr-00551-RDB-3)
Submitted: December 1, 2009 Decided: December 14, 2009
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Dismissed in part, affirmed in part, vacated in part, and
remanded by unpublished per curiam opinion.
William Francis Xavier Becker, Rockville, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Christopher J. Romano, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lenny Lyle Cain appeals his conviction for aggravated
identity theft in violation of 18 U.S.C. § 1028A(a)(1) (2006),
and his sentence after pleading guilty to possessing false
identification documents, aggravated identity theft, possessing
a seal of the Social Security Administration knowing it was
falsely made, and using the Social Security number of another
person. On appeal, he contends that the district court erred in
finding there was a sufficient factual basis for his aggravated
identity theft conviction in light of Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009), and in calculating his guideline
range on the other counts. Specifically, Cain argues that the
district court erred in not granting his request for a downward
departure under U.S. Sentencing Guidelines Manual § 4A1.3(b)(1)
(2007). The Government concedes there is no evidence in the
record showing Cain’s knowledge that the means of identification
involved in his aggravated identity theft conviction belonged to
another person as required under § 1028A(a)(1), but contends his
sentence on the other counts was both proper and reasonable.
Before entering judgment on a guilty plea, a district
court must determine that there is a factual basis for the plea.
Fed. R. Crim. P. 11(b)(3). The rule is designed to protect a
defendant who is in the position of pleading voluntarily with an
understanding of the nature of the charge but without realizing
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that his conduct does not actually fall within the charge.
United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007)
(citations omitted). “It is ‘well settled that a defendant may
raise on direct appeal the failure of a district court to
develop on the record a factual basis for a plea.’” United
States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (quoting
United States v. Mitchell, 104 F.3d 649, 652 n.2 (4th Cir.
1997)). We review the district court’s determination for abuse
of discretion, and we will not find an abuse of discretion so
long as the district court could reasonably have determined that
there was a sufficient factual basis based on the record before
it. Mastrapa, 509 F.3d at 660 (citations omitted). Since Cain
did not challenge the Rule 11 proceedings in the district court,
we review his challenge now for plain error. Id. at 657.
Because we conclude that the record contains no factual basis
showing Cain’s knowledge that the means of identification
involved in his aggravated identity theft conviction belonged to
another person as required under § 1028A(a)(1), we vacate the
conviction and sentence for that conviction.
Cain also contends that the district court erred in
calculating his advisory guideline range on the other counts.
We review a sentence under a deferential abuse-of-discretion
standard. See Gall v. United States, 552 U.S. 38, 51 (2007).
The first step in this review requires us to ensure that the
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district court committed no significant procedural error, such
as improperly calculating the guideline range. United States v.
Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct.
2525 (2008). In assessing a sentencing court’s application of
the guidelines, we review its legal conclusions de novo and its
factual findings for clear error. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). We then consider the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Gall, 552 U.S. at 51.
On appeal, Cain notes the objections he made in the
district court and contends the district court erred in not
granting his request for a downward departure under USSG
§ 4A1.3(b)(1). We dismiss this part of Cain’s appeal because a
district court’s decision not to depart from the sentencing
guidelines is not reviewable on appeal unless the court
mistakenly believed that it lacked authority to depart. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). To
the extent that Cain otherwise challenges the district court’s
calculation of his advisory guideline range and sentence, we
find no error or abuse of discretion by the district court.
We therefore vacate Cain’s conviction and sentence for
aggravated identity theft; dismiss his appeal in part; affirm
his other convictions and sentences; and remand to the district
court for further proceedings consistent with this opinion. We
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grant Cain’s motion to advance consideration of this appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART, AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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