                              UNPUBLISHED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remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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