                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 11-1581 & 11-1776
                                     ___________

                           UNITED STATES OF AMERICA

                                            v.

                                  BARRY CORBIN,
                                              Appellant
                              _______________________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                D.C. Criminal Nos. 09-cr-00490-001 & 10-cr-00573-001
                             (Honorable R. Barclay Surrick)
                                   ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 5, 2012

         Before: SCIRICA, AMBRO and VAN ANTWERPEN, Circuit Judges.

                             (Opinion Filed: April 17, 2012)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Barry Corbin pleaded guilty to uttering a forged treasury check, in violation of 18

U.S.C. § 510(a)(2); producing a false identification document, in violation of 18 U.S.C. §

1028(a)(1); possessing a document-making implement, in violation of 18 U.S.C. §

1028(a)(5); conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371; four counts
of wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349; and five counts of aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Corbin appeals his sentence,

arguing the District Court erred in determining whether his five § 1028A sentences

should run consecutively with one another, and miscalculated his advisory sentencing

range. We will affirm.1

                                             I.

       Corbin was the leader of a counterfeiting and identity fraud operation in

Philadelphia, Pennsylvania. In March 2009, as part of an ongoing investigation, law

enforcement officers observed Corbin using a false identification to cash a fraudulently

endorsed United States Treasury check. A subsequent search of Corbin’s home yielded

a variety of equipment used to produce forged documents as well as a significant number

of false driver’s licenses and Social Security cards. Corbin pleaded guilty to an

indictment and an information pursuant to a plea agreement, and the two cases were

consolidated for sentencing.

       Corbin was sentenced on February 28, 2011. All of the counts from both cases,

excluding the aggravated identity theft convictions, were grouped together under

U.S.S.G. § 3D1.2(b). With an offense level of twenty-eight and a criminal history of

Category VI, Corbin’s advisory sentencing range—excluding the aggravated identity

theft convictions—was calculated at 140-175 months.




1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             2
       The District Court then added the sentences for Corbin’s five aggravated identity

theft convictions under § 1028A. The Court added one two-year term to the lower end of

the advisory guidelines range, and five two-year terms to the upper end, thereby

increasing the final range to 164-295 months. Counsel did not object to this calculation.

The Court then considered Corbin’s extensive criminal history, the seriousness of the

offenses, and the need for significant punishment. The Court ultimately sentenced

Corbin to 240 months’ imprisonment with three years’ probation. This timely appeal

followed.

                                              II.

       Generally we review sentencing decisions for abuse of discretion. Gall v. United

States, 552 U.S. 38, 46 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)

(en banc). However, because Corbin failed to raise his objections before the sentencing

court, we review only for plain error. United States v. Couch, 291 F.3d 251, 252-53 (3d

Cir. 2002). Under this standard, we must find “(1) an error was committed, (2) the error

was plain, i.e., clear or obvious, and (3) the error affected the defendant’s substantial

rights.” United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001).2

                                             III.

                                              A.




2
  Plain error must be prejudicial in that it “affected the outcome of the district court
proceedings.” United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000). The Court
should exercise its discretion to order a reversal only if the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id.
                                               3
       Corbin contends the District Court committed procedural error by failing to

consider the factors listed in the commentary to U.S.S.G. § 5G1.2 to determine whether

his aggravated identity theft convictions should run concurrently to, or consecutive with,

one another. Because a sentencing court has discretion in considering the § 5G1.2

factors, the District Court did not commit procedural error in imposing consecutive §

1028A sentences.

       Corbin pleaded guilty to five counts of aggravated identity theft in violation of 18

U.S.C. § 1028A(a)(1). Under § 1028A, a conviction for aggravated identity theft carries

a two-year sentence, which must run consecutively with any other term of imprisonment.

Id. §§ 1028A(a)(1), (b)(2). However, the statute carves out an exception for multiple

aggravated identity theft convictions, which “may, in the discretion of the court, run

concurrently” to one another. Id. § 1028A(b)(4). Such discretion “shall be exercised in

accordance with any applicable guidelines and policy statements issued by the

Sentencing Commission.” Id.

       Those guidelines are set out in the commentary to U.S.S.G. § 5G1.2. The

Sentencing Commission recommends courts “should consider” a non-exhaustive list of

factors in determining whether multiple counts of § 1028A should run concurrently or

consecutively:

       (i) The nature and seriousness of the underlying offenses. . . .

       (ii) Whether the underlying offenses are groupable under § 3D1.2 (Groups of
       Closely Related Counts). Generally, multiple counts of 18 U.S.C. 1028A should
       run concurrently with one another in cases in which the underlying offenses are
       groupable under § 3D1.2.


                                              4
       (iii) Whether the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) are
       better achieved by imposing a concurrent or a consecutive sentence for multiple
       counts of 18 U.S.C. 1028A.

U.S.S.G. § 5G1.2, cmt 2(B). Corbin argues the District Court’s failure to explicitly

acknowledge, weigh, or make a record of the § 5G1.2 factors constitutes procedural error.

       As is clear from the language of § 1028A, the sentencing court “may,” in its

discretion, impose concurrent aggravated identity theft sentences in accordance with the

guidelines in U.S.S.G. § 5G1.2. 18 U.S.C. § 1028A. These guidelines explain the court

“should consider” the listed factors in its determination. U.S.S.G. § 5G1.2.

       The District Court did not explicitly mention the guideline commentary that

provides the analysis for determining whether multiple aggravated identity theft

convictions warrant consecutive sentences, but that omission does not constitute plain

error. We do not require sentencing courts to explicitly discuss the non-exhaustive

factors in the commentary to § 5G1.2.3 Even so, the District Court carefully considered

the nature and seriousness of Corbin’s prior offenses as well as the § 3553(a) factors, thus

covering two of the three factors under § 5G1.2. Accordingly, we conclude the District

Court did not plainly err in imposing consecutive sentences for Corbin’s § 1028A

convictions.


3
  Other circuits have come to the same conclusion. See United States v. Collins, 640 F.3d
265, 270 (7th Cir. 2011) (noting the court’s oversight in not addressing the § 5G1.2
factors was not reversible error); United States v. Dvorak, 617 F.3d 1017, 1029 (8th Cir.
2010), cert. denied, 131 S.Ct. 1539 (2011) (holding a court is not required to “recite
every factor contained in a guideline” so long as the sentence is “implicitly based . . . on
at least one of those factors”); United States v. Bonilla, 579 F.3d 1233, 1245 (11th Cir.
2009) (finding sufficient an evaluation of the seriousness of offenses and analysis of §
3553(a) factors).
                                             5
                                            B.

       Corbin also contends the District Court miscalculated his advisory sentencing

range by adding the minimum two-year term for his § 1028A convictions to the lower

end of the sentencing range, but adding the maximum ten-year term to the upper end of

the sentencing range. Corbin asserts the correct calculation was to add the minimum

two-year term to both the lower and upper ends of his sentencing range.

       Excluding his five § 1028A convictions, Corbin’s advisory sentencing range was

calculated at 140-175 months. The District Court added one two-year term to the lower

end of the sentencing range—representing the statutory minimum term if the five §

1028A sentences ran concurrently—and five two-year terms to the upper end of the

sentencing range—indicating the statutory maximum term if the § 1028A sentences ran

consecutively.

       As discussed above, sentencing courts have discretion to impose consecutive or

concurrent § 1028A sentences. 18 U.S.C. § 1028A; U.S.S.G. § 5G1.2. There is no

method outlined in the Guidelines, or in our case law, that requires a sentencing court to

impose the statutory minimum to both the lower and upper ends of the advisory

sentencing range. In effect, the District Court’s calculated range represented the

minimum and maximum advisory sentences, according to the Court’s discretion, for

Corbin’s five § 1028A convictions. If the § 1028A sentences ran concurrently, his

sentence would be 164 months; if the § 1028A sentences ran consecutively, his sentence

would be 295 months. By calculating Corbin’s advisory sentencing range in this manner,

the Court did not commit a “plain, i.e., clear or obvious” error. Knight, 266 F.3d at 206.

                                             6
Accordingly, the District Court did not commit procedural error in calculating Corbin’s

sentence.

                                           IV.

      For the foregoing reasons, we will affirm the judgment of conviction and sentence.




                                            7
