United States v. Wallace , 403 F. App'x 868 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LLOYD BRIDGES WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00135-BR-1)
Submitted: September 28, 2010 Decided: December 3, 2010
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
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Unpublished opinions are not binding precedent in this circuit.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:
Lloyd Bridges Wallace appeals from his conviction and
the fifty-four month sentence imposed after he pleaded guilty to
possession of stolen mail and aggravated identity theft.
Counsel has filed an Anders v. California, 386 U.S. 738 (1967),
brief stating that he has discerned no meritorious issues, but
raising the issues of ineffective assistance of counsel by
failing to file a motion to suppress, and whether the district
court erred in calculating the Sentencing Guidelines range.
Wallace did not file a pro se supplemental brief. We affirm
Wallace’s conviction, but vacate the sentence and remand for
resentencing.
We may address on direct appeal a claim that counsel
was ineffective only if the ineffectiveness appears conclusively
on the face of the record. United States v. Baldovinos, 434
F.3d 233, 239 (4th Cir. 2006). We conclude that ineffective
assistance does not conclusively appear on the record regarding
Wallace’s claim that counsel failed to file a motion to suppress
items found in the glove compartment during a search of his car.
Next, Wallace alleges that the district court erred in
calculating his advisory Sentencing Guidelines range by
attributing more loss than the amount of the check cashed,
applying a two-level increase for use of an identification card
to obtain another means of identification, and that he should
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not have received a two-year consecutive sentence under 18
U.S.C. § 1028A (2006), for use or possession of a fraudulent
identification in relation to the aggravated identity theft.
When determining a sentence, the district court must calculate
the appropriate advisory Guidelines range and consider it in
conjunction with the factors set forth in 18 U.S.C. § 3553(a)
(2006). Gall v. United States, 552 U.S. 38, 49-50 (2007).
Appellate review of a district court’s imposition of a sentence,
“whether inside, just outside, or significantly outside the
Guidelines range,” is for abuse of discretion. Id. at 41.
Sentences within the applicable Guidelines range may be presumed
by the appellate court to be reasonable. United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
The court did not err in calculating the loss. The
loss was not stipulated to by the parties in the plea agreement
and the agreement indicated that the sentence would be
established by the district court and the Sentencing Guidelines.
Wallace contends that he understood that his loss would be fixed
at $7,700 - the amount of the check he fraudulently cashed.
However, Wallace was linked to several other checks, bringing
the total intended loss to $22,279.03. Therefore, Wallace
received a four-level increase, instead of a two-level increase.
Under the Guidelines, loss is the greater of the actual loss or
intended loss. U.S. Sentencing Guidelines Manual § 2B1.1,
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comment. (n.3(A)) (2009). The two-year mandatory consecutive
sentence for the aggravated identity theft was proper because a
bank fraud is an enumerated felony triggering the consecutive
sentence provision. See USSG § 2B1.6. However, our review of
the sentence identified an error in the application of one
enhancement used to calculate the sentence. The district court
applied a two-level enhancement under USSG § 2B1.1(b)(10)(C)(i)
for the unauthorized transfer or use of any means of
identification unlawfully to produce or obtain any other means
of identification. Wallace initially objected to the
application of the enhancement, arguing that he did not produce
any other identification documents. The presentence report
applied the enhancement because Wallace used a fraudulent
Georgia identification card to open a credit union account in a
victim’s name.
Although Wallace objected to the calculation of his
sentence based on the applicable facts, he did not argue that
the enhancement should not have been applied because he was
receiving a consecutive sentence under § 1028A. Therefore, this
portion of the sentence is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993). Under the plain
error test, a defendant must show that (1) error occurred;
(2) the error was plain; and (3) the error affected his
substantial rights. Id. at 732. Even when these conditions are
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satisfied, this court may exercise its discretion to notice the
error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(internal quotation marks omitted).
Application Note 2 to USSG § 2B1.6 directs that “[i]f
a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific
offense characteristic for the transfer, possession, or use of a
means of identification when determining the sentence for the
underlying offense.” Therefore, the two-level increase under
§ 2B1.1(b)(10)(C)(i) for Wallace’s use of the Georgia
identification card to obtain the credit union account was
erroneously applied. The correct Guidelines range for the
possession of stolen mail count is 18-24 months, rather than the
range of 24-30 months used by the district court. The court
sentenced Wallace to a 30-month sentence for the stolen mail
count and then added the mandatory consecutive 24-month sentence
for the aggravated identity theft count, for a total of 54
months of imprisonment.
We conclude that the enhancement was indeed plain
error, which affected Wallace’s substantial rights because it
increased his Guidelines range for the possession of stolen
mail, and resulted in a sentence above the Guidelines range that
should have been applied. We therefore exercise our discretion
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to notice the error, vacate the sentence, and remand the case
for resentencing.
In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
appeal. We therefore affirm the convictions, but vacate the
sentence and remand for resentencing. 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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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