                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4461


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHIRLENE REESE BOONE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:10-cr-00054-F-1)


Submitted:   March 27, 2012                 Decided:   April 23, 2012


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A.
WILLIAMS, P.A., Greenville, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant to her written plea agreement, Shirlene Reese

Boone pled guilty to conspiracy to commit offenses against the

United States, to wit:            health care and mail fraud, in violation

of 18 U.S.C. § 371 (2006) (“Count One”); aggravated identity

theft    and     aiding    and    abetting,     in    violation     of     18   U.S.C.

§§ 1028A, 2 (2006) (“Count Two”); and failure to collect and pay

over payroll taxes and aiding and abetting, in violation of 26

U.S.C. §§ 7202, 2 (“Count Three”) (2006).                     The district court

sentenced Boone to 144 months of imprisonment, consisting of 60

months on Counts One and Three and 44 months on Count Two, all

to be served consecutively.             This appeal timely followed.

               Boone first asserts there was an insufficient factual

basis to support her guilty plea to aggravated identity theft

because    she     was    not     convicted    under    one   of    the     statutory

sections or chapters enumerated in 18 U.S.C. § 1028A(c).                        Thus,

Boone    contends,       the    district   court     committed     plain    error   in

accepting the guilty plea to Count Two.                  Boone next argues her

attorney was ineffective during the sentencing phase because he

failed to object, pursuant to United States v. Llamas, 599 F.3d

381     (4th    Cir.     2010),    to    the   two     sentencing     enhancements

predicated on the vulnerability of the victims of Boone’s fraud.

Claiming that counsel’s ineffectiveness is evident on the face

of the record, Boone asks this court to vacate her sentence and

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to remand for resentencing.                For the reasons that follow, we

reject these contentions and affirm.

              Boone pled guilty to knowingly possessing and using,

without lawful authority, a means of identification of another

person, during and in relation to the commission of health care

fraud, in violation of 18 U.S.C.A. § 1347 (West 2000 and Supp.

2011).       On appeal, Boone contends that the aggravated identity

theft statute, 18 U.S.C. § 1028A, requires that “a defendant

must    be   convicted      of    the    predicate   felony     during    which   the

identification        was   used       before   section   1028A   is     triggered.”

(Appellant’s      Br.    at      7)    (emphasis   added).      Because     she   was

convicted of violating 18 U.S.C. § 371, which is not enumerated

in     18    U.S.C.     § 1028A(c),        Boone     contends     there     was    an

insufficient factual basis for her guilty plea.

              Boone’s argument, however, is contrary to the plain

wording of the statute.               Subsection (a) discusses only a “felony

violation” of any of the enumerated provisions in subsection

(c).     18 U.S.C. § 1028A(a).            Subsection (c), in turn, defines a

“felony violation enumerated in subsection (c)” to mean “any

offense that is a felony violation of” the enumerated statutory

sections and chapters.                18 U.S.C. § 1028A(c) (emphasis added).

Because the statutory text does not support Boone’s contention

that there must be a conviction on the predicate felony offense,

we must reject this argument.               See Conn. Nat’l Bank v. Germain,

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503 U.S. 249, 253–54 (1992) (reiterating the judicial canon that

“courts must presume that a legislature says in a statute what

it means and means in a statute what it says there”); Ignacio v.

United States, __ F.3d. __, 2012 WL 887594, at *5 (4th Cir.

Mar. 16,      2012)    (“[A]bsent    an   ambiguity    in    the     words    of   a

statute, our analysis begins and ends with the statute’s plain

language.”).          We thus conclude there was no error, let alone

plain error, 1 in the district court’s accepting Boone’s guilty

plea to Count Two. 2

              Boone    next    contends   her   sentence    should    be     vacated

because counsel rendered constitutionally deficient assistance

prior    to   and     during   sentencing.      Specifically,      Boone     claims


     1
       Even if we were to conclude there was error, that error
cannot be considered “plain” in the absence of any controlling
contrary Fourth Circuit or Supreme Court authority. See United
States v. Maxwell, 285 F.3d 336, 341-42 (4th Cir. 2002).      In
fact, there is a dearth of precedential support for Boone’s
argument.   Although Boone relies on United States v. Luke, 628
F.3d 114 (4th Cir. 2010), the Luke court did not rule that the
“during and in relation to any felony violation” clause mandates
a conviction on the predicate felony offense.     Cf. Luke, 628
F.3d at 123.    The “felony violation” here was the offense of
health care fraud, which is encompassed by § 1028A(c)(1).    See
United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010)
(“[C]onvictions for health care fraud qualif[y] as predicate
felony offenses under 18 U.S.C. § 1028A(c)(1).”).
     2
       This analysis renders moot Boone’s related contention that
the predicate conviction must be a “substantive offense of
conviction, not merely the object of a general conspiracy
charge.”   (Appellant’s Br. at 10) (relying on United States v.
Phan, 121 F.3d 149, 152-53 (4th Cir. 1997)).



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counsel should have objected to the two enhancements based on

the vulnerable victims of the fraud, because the presentence

report    (“PSR”)    lacked          particularized       findings       regarding     the

victims’ unusual vulnerability and Boone’s knowledge thereof.

            Central to Boone’s argument is this court’s decision

in Llamas, where we held that, to apply the vulnerable victim

enhancement    under       U.S.      Sentencing       Guidelines       Manual     (“USSG”)

§ 3A1.1(b)(1),      the     “sentencing          court    must    determine        that    a

victim was unusually vulnerable. . . . [and] then assess whether

the     defendant    knew       or    should     have     known    of     such     unusual

vulnerability.”           599    F.3d   at     388.      This    court    accepted        the

proposition that, for the enhancement to apply, the sentencing

court must offer “‘a fact-based explanation of why advanced age

or some other characteristic made one or more victims unusually

vulnerable to the offense conduct.’”                     Llamas, 599 F.3d at 388

(quoting United States v. Vega-Iturrino, 565 F.3d 430, 434 (8th

Cir. 2009)).        Boone maintains that counsel’s failure to object

based on Llamas amounts to per se deficient performance, because

the specific facts necessary to support the enhancement were

absent from the PSR and the court made no such factual findings

at sentencing.         Furthermore, the omission was prejudicial to

Boone     because    the        enhancements       resulted       in     two     two-level

increases     to    her     adjusted      offense        level    and     the     elevated



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Guidelines range, in turn, triggered the use of USSG § 5G1.2(d)

to impose consecutive sentences.

            Boone    aptly    acknowledges      that   claims    of   ineffective

assistance of counsel generally are not cognizable on direct

appeal    unless     the    record   conclusively      establishes      counsel’s

“objectively unreasonable performance” and resulting prejudice.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

Instead,    ineffective       assistance      of   counsel   claims     are    most

appropriately pursued in a motion under 28 U.S.C.A. § 2255 (West

Supp. 2011) to allow for adequate development of the record.

See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.

2010).      The record here does not conclusively establish that

counsel’s failure to assert the objection amounts to deficient

performance,        i.e.,     “performance . . . ‘below          an     objective

standard of reasonableness’ measured by ‘prevailing professional

norms.’”     United States v. Higgs, 663 F.3d 726, 735 (4th Cir.

2011)    (quoting    Strickland      v.    Washington,   466     U.S.   668,   688

(1984)).     Given the opportunity in a § 2255 proceeding, counsel

may provide a sound and reasonable explanation for not making

the Llamas objection that is not readily discernible from the

record in its present form.               We therefore decline to consider

Boone’s     ineffective      assistance       of   counsel      claim   at     this

juncture.



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            For   these   reasons,   we   affirm   the   district   court’s

judgment.     Further, we deny Boone’s motion for 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




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