                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4268


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KIMBERLY TAYLOR,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00119-F-1)


Submitted:   March 30, 2010                 Decided:   April 15, 2010


Before KING, DUNCAN, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Slade   C.  Trabucco,   SULLIVAN,  TRABUCCO   &   WAGONER,  LLP,
Wilmington, North Carolina, for Appellant.        George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kimberly    Taylor    pled       guilty    to    ten   counts   of   bank

fraud, 18 U.S.C. § 1344 (2006) (Counts 1-10), and two counts of

aggravated     identity   theft,       18      U.S.C.       § 1028A(a)(1)     (2006)

(Counts 11-12).       She was sentenced to a term of seventy months

imprisonment.       Taylor appeals her sentence, contending that the

district court’s application of a two-level enhancement under

U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)(C)(i) (2008),

for use of a means of identification (Social Security numbers)

in the commission of the bank fraud, was plain error.                       She also

argues that the sentence violated the Eighth Amendment and the

sentencing goals set out in 18 U.S.C. § 3553(a) (2006).                           We

agree that the increase in Taylor’s offense level for use of

Social   Security    numbers     was   plain     error.        United   States    v.

Olano, 507 U.S. 725, 732 (1993) (defendant must show that (1)

error occurred; (2) the error was plain; (3) the error affected

her substantial rights).         We conclude that the error “seriously

affect[s]     the   fairness,     integrity       or    public      reputation    of

judicial proceedings,” id., and that resentencing is necessary.

            For the bank fraud convictions, Taylor’s total offense

level was 21 and her advisory guideline range was 37-46 months.

Taylor initially objected to the enhancement for use of Social

Security numbers, but withdrew the objection at sentencing.                      The

district court adopted the recommended guideline calculation in

                                         2
the   presentence        report      and    imposed     a    sentence        of    forty-six

months.        The     two-year      sentences    for       the    aggravated       identity

theft    offenses       were   required       under     18    U.S.C.       § 1028A       to   be

consecutive       to    any    other       term   of    imprisonment.              See    USSG

§ 2B1.6.       The district court imposed a two-year sentence on each

count of aggravated identity theft, consecutive to the forty-

six-month bank fraud sentence, but concurrent with each other,

which resulted in a total sentence of seventy months.

               Application      Note    2    to   § 2B1.6         states    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.”           The government concedes that the two-level

increase under § 2B1.1(b)(10)(C)(i) for Taylor’s use of Social

Security numbers was plain error that increased her guideline

range    and    affected       her    substantial       rights.            The    government

agrees that the case should be remanded for resentencing under

the correct guideline range of 30-37 months, rather than the

range of 37-46 months used by the district court.                           We agree, and

we exercise our discretion to notice the error.

               Taylor also maintains that her sentence violated the

Eighth    Amendment       prohibition        on   cruel      and    unusual       punishment

because the government arbitrarily charged her with two counts

                                              3
of    aggravated        identify      theft          which     required           sentences

consecutive to her sentence for bank fraud.                      We do not discern

any Eighth Amendment violation.

           Last, Taylor argues that the district court erred by

simply stating that it had considered the relevant § 3553(a)

factors without discussing those factors in detail.                             Because we

are   remanding     Taylor’s       case    for       resentencing,         we     will   not

address   this    issue.     We     note,       however,      that    on     remand,     the

district court should “apply the relevant § 3553(a) factors to

the   specific    circumstances       of       the   case     before       it.”     United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

           For    the    reasons     discussed,         we    vacate       the     sentence

imposed   by     the    district     court      and     remand       for    resentencing

without the enhancement under § 2B1.1(b)(10)(C)(i).                          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.



                                                               VACATED AND REMANDED




                                           4
