                               UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                               No. 09-4295


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

SHARONE   JERMAINE    BERRY,   a/k/a   Shaun   Smith,   a/k/a   Jerome
Smith,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:08-cr-00043-RGD-TEM-1)


Submitted:   January 27, 2010                   Decided:   March 12, 2010


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Richard Cooke, Brian
J. Samuels, Assistant United States Attorneys, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sharone Jermaine Berry appeals his jury conviction and

286-month    sentence       for    possession           with    intent    to   distribute

cocaine base within 1000 feet of school property, in violation

of   21   U.S.C.    §§ 841,       860       (2006);      identification        theft,     in

violation of 18 U.S.C. § 1028(a)(7) (2006); false representation

of   a    social    security       number,         in    violation       of    42   U.S.C.

§ 408(a)(7)(B)       (2006);       and       aggravated         identity       theft,     in

violation of 18 U.S.C. § 1028A (2006).                     On appeal, Berry asserts

that: (i) the district court erred when it denied his motion to

suppress; (ii) his identity theft and aggravated identity theft

convictions must be reversed in light of the Supreme Court’s

recent holding in Flores-Figueroa v. United States, 129 S. Ct.

1886 (2009); and (iii) his sentence is procedurally unreasonable

because     the    district       court      allegedly         failed     to   provide     a

sufficient statement of reasons for the sentence it imposed.

Although     we    vacate     Berry’s         identity         theft     and   aggravated

identity theft convictions and their corresponding sentences, we

affirm the remainder of the district court’s judgment.

            On     appeal     from      a    district          court’s    denial     of    a

suppression       motion,    we    review         the    district       court’s     factual

findings for clear error and its legal determinations de novo.

See United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009).

When a defendant’s suppression motion has been denied, we review

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the evidence in the light most favorable to the Government.                            See

United States v. Farrior, 535 F.3d 210, 217 (4th Cir.), cert.

denied, 129 S. Ct. 743 (2008).                    We also defer to the district

court’s credibility determinations.                    See United States v. Abu

Ali, 528 F.3d 210, 232 (4th Cir. 2008), cert. denied, 129 S. Ct.

1312 (2009).      With these standards in mind, and having reviewed

the   transcript     of    the    suppression         hearing     and    the    parties’

briefs,    we   conclude    that    the       district    court    did    not    err    in

denying Berry’s motion to suppress.

            We nonetheless agree that Berry’s § 1028A aggravated

identity theft conviction and his § 1028(a)(7) identity theft

convictions, as well as their corresponding sentences, must be

vacated in light of Flores-Figueroa. *                  In Flores-Figueroa, which

was   decided    after    Berry    was        convicted    and    sentenced      by    the

district    court,    the    Supreme          Court    held   that      “§ 1028A(a)(1)

requires the Government to show that the defendant knew that the

means of identification [stolen] belonged to another person.”

129 S. Ct. at 1894.          Although Flores-Figueroa did not address

the   knowledge    necessary       for    a       § 1028(a)(7)    conviction,      “when

Congress uses the same language in two statutes having similar

      *
       Although Berry moved for a judgment of acquittal on his
§ 1028A conviction, thereby preserving this issue for appeal, we
review Berry’s challenge to his § 1028(a)(7) convictions for
plain error.    See United States v. Smith, 441 F.3d 254, 271
(4th Cir. 2006).



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purposes, particularly when one is enacted shortly after the

other, it is appropriate to presume that Congress intended that

text to have the same meaning in both statutes.”                                      Smith v.

Jackson, MS, 544 U.S. 228, 233 (2005).                          Because § 1028(a)(7)’s

wording     is     virtually        identical        to    § 1028A,       both        statutes

criminalize identity theft, and § 1028A was passed shortly after

§ 1028(a)(7),          we   agree    that     the    Supreme       Court’s          holding   in

Flores-Figueroa should apply to a § 1028(a)(7) conviction, as

well.     Compare 18 U.S.C. § 1028(a)(7) (2006) (making it unlawful

for     someone    to       “knowingly      transfer[],          possess[],         or   use[],

without lawful authority, a means of identification of another

person with the intent to commit, or to aid or abet, or in

connection        with,      any    unlawful        activity      that    constitutes         a

violation of Federal law, or that constitutes a felony under any

applicable       State      or   local   law)     with     18    U.S.C.     §       1028A(a)(1)

(2006) (making it unlawful for someone to “knowingly transfer[],

possess[],        or    use[],      without     lawful      authority,          a    means    of

identification of another person”).

             The       Government        concedes         that     Flores-Figueroa            is

retroactively          applicable     to    Berry’s       appeal,     see       Griffith      v.

Kentucky, 479 U.S. 314, 328 (1987), and acknowledges that the

record is devoid of evidence establishing that Berry knew the

identification he stole belonged to another person.                                 Because we



                                              4
agree, we vacate Berry’s identity theft and aggravated identity

theft convictions, as well as their respective sentences.

            We nonetheless affirm the remainder of the district

court’s judgment. In evaluating the district court’s explanation

for a selected sentence, we have consistently held that, while a

district court must consider the statutory factors and explain

its    sentence,   it    need   not       explicitly        reference       18 U.S.C.      §

3553(a) (2006) or discuss every factor on the record.                                United

States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006).                                At the

same    time,   the     district     court      “may       not     presume       that    the

Guidelines      range     is       reasonable,”            but      “must        make     an

individualized        assessment      based         on     the     facts        presented.”

Gall v. United States, 552 U.S. 38, 50 (2007).

            Against      this   backdrop,            we     recognized          in   United

States v.    Carter,     564    F.3d      325       (4th    Cir.    2009),        that   the

“individualized       assessment      .    .    .    must    provide        a    rationale

tailored to the particular case at hand and [be] adequate to

permit meaningful appellate review.”                     564 F.3d at 330 (internal

quotation marks and citation omitted).                      Thus, a recitation of

the § 3553(a) factors and purposes is insufficient.                          Likewise, a

conclusory statement that a specific sentence is the proper one

does not satisfy the district court’s responsibilities.                              Id. at

328-29.     In addition, we “may not guess at the district court's

rationale, searching the record for statements by the Government

                                           5
or defense counsel or for any other clues that might explain a

sentence.”       Id. at 329-30.

             Despite         the    foregoing       considerations,          the    district

court’s explanation "need not be elaborate or lengthy."                               Id. at

330. “That is especially true where, as here, the sentence is

inside     the     advisory         guidelines      range.”       United       States       v.

Johnson, 587 F.3d 625, 639 (4th Cir. 2009).                            “Gall was quite

explicit that district courts should provide more significant

justifications for major departures than for minor ones.                                   But

when a district court does not depart or vary at all, it may

provide      a     less        extensive,          while     still      individualized,

explanation.”           Id.    (internal       citations,       quotation          marks   and

brackets     omitted).              “This     is   because      guidelines         sentences

themselves       are    in    many     ways    tailored    to    the    individual         and

reflect approximately two decades of close attention to federal

sentencing policy.”            Id. (internal quotation marks and citation

omitted).        We have reviewed the transcript of Berry’s sentencing

and   find    that      the        district    court   adequately           explained      its

rationale    for       the    within-Guidelines        sentence        it    imposed       and,

although not overly detailed, the district court’s reasoning for

Berry’s sentence was sufficiently individualized and reflected a

considered rationale.

             Based on the foregoing, we vacate Berry’s conviction

and sentence for aggravated identity theft under § 1028A, as

                                               6
well as his convictions and sentences for identity theft under

§ 1028(a)(7),    affirm   the   remainder      of     the   district   court’s

judgment   and   remand    to    the       district     court   for    further

proceedings consistent with this opinion.             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 IN PART,
                                                                 AND REMANDED




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