                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-4643


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL K. AGYEPONG,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00178-JAB-2)


Submitted:   June 30, 2010                        Decided:   July 21, 2010


Before SHEDD and      AGEE,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Robert Michael Hamilton, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Daniel K. Agyepong pled guilty to conspiracy to use

counterfeit and unauthorized access devices (credit cards and

credit     card      account    numbers),      in    violation     of     18     U.S.C.

§ 1029(a)(1), (a)(2), (b)(2) (2006) (Count One), and aggravated

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

(Count Eleven).        The district court initially sentenced Agyepong

to fifteen months’ imprisonment on Count One and a consecutive

twenty-four       months’      imprisonment     on    Count     Two.           Agyepong

appealed his sentence, challenging the district court’s loss and

criminal history calculations.            We affirmed the district court’s

loss calculation, but because Agyepong was not on probation when

he committed the instant offenses, we found that the district

court erred by assessing two criminal history points under U.S.

Sentencing Guidelines Manual § 4A1.1(d) (2007).                        Without these

criminal    history     points,     Agyepong’s       criminal    history       category

was reduced from category III to category II, and his guidelines

range on Count One, based on offense level twelve, became twelve

to   eighteen     months,      rather   than   the    higher     range    originally

calculated      by    the   district    court. ∗      See   USSG   ch.     5,    pt.   A

(sentencing table).          Accordingly, we vacated Agyepong’s sentence

      ∗
       Agyepong’s sentence on Count Eleven, aggravated identity
theft, was a statutory mandatory consecutive twenty-four months’
imprisonment. 18 U.S.C. § 1028A(a)(1), (b)(2).



                                          2
and   remanded     for    resentencing      under     the   correctly    calculated

guidelines range.           United States v. Agyepong, 312 F. App’x 566

(4th Cir. 2009) (No. 08-4053).

            At resentencing, the district court imposed a twelve-

month prison term on Count One, the bottom of the guidelines

range, and a consecutive twenty-four months on Count Eleven, for

a total sentence of thirty-six months’ imprisonment.                       Agyepong

timely appealed.           His attorney has filed a brief pursuant to

Anders     v.     California,       386    U.S.      738    (1967),     finding    no

meritorious       grounds    for    appeal,    but    questioning     whether     the

district        court    erred     by     denying     Agyepong’s      motions     for

substitution of counsel and to withdraw his guilty plea to Count

Eleven, and in calculating the loss attributable to Agyepong and

his     criminal    history      score.        Counsel      also   challenges     the

reasonableness of Agyepong’s sentence.                 Agyepong filed a pro se

supplemental       brief     reiterating       counsel’s      challenge     to    the

district court’s denial of his motion to withdraw the guilty

plea.    For the reasons that follow, we affirm.

            Agyepong first contends that the district court erred

by denying his motion for substitution of counsel, filed shortly

before his resentencing hearing.               This court reviews a district

court’s denial of a motion for substitution of counsel for abuse

of discretion.          United States v. Corporan-Cuevas, 35 F.3d 953,

956 (4th Cir. 1994).               In evaluating whether the trial court

                                           3
abused its discretion, we consider:                           (1) the timeliness of the

motion; (2) the adequacy of the inquiry into the defendant’s

complaint        about          his         attorney;          and      (3)      whether        the

attorney/client conflict was so great that it resulted in total

lack of communication preventing an adequate defense.                                        United

States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).                                          These

factors are balanced against the district court’s “interest in

the orderly administration of justice.”                              Id. at 157.         We have

reviewed Agyepong’s claim with these standards in mind and find

no   abuse     of       discretion          in    the       district    court’s        denial    of

Agyepong’s motion.

               Next, Agyepong asserts that the district court erred

by   denying        his    motion      to    withdraw         his    guilty     plea    to   Count

Eleven,    aggravated           identity         theft.         We     review    the     district

court’s denial of a motion to withdraw a guilty plea for abuse

of discretion.             United States v. Ubakanma, 215 F.3d 421, 424

(4th Cir. 2000).            “[A] defendant does not have an absolute right

to   withdraw       a     guilty      plea,      even       before   sentencing.”            United

States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).                                 Instead, he

must   show     a    “fair      and    just       reason”      supports       his   request      to

withdraw      his       plea.       Id.          Factors      considered      in    determining

whether    a    defendant          has      shown       a    fair    and   just     reason      for

withdrawing his guilty plea include:



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       (1)   whether  the  defendant   has  offered  credible
       evidence that his plea was not knowing or not
       voluntary, (2) whether the defendant has credibly
       asserted his legal innocence, (3) whether there has
       been a delay between the entering of the plea and the
       filing of the motion, (4) whether the defendant has
       had close assistance of competent counsel, (5) whether
       withdrawal will cause prejudice to the government, and
       (6) whether it will inconvenience the court and waste
       judicial resources.

Id.    Agyepong’s challenge to his guilty plea focuses on Factor

2,    legal   innocence,      because    he   contends       that    he    is       actually

innocent      of   aggravated     identity     theft     in     light          of    Flores-

Figueroa v. United States, 129 S. Ct. 1886 (2009), a decision

that issued a month before his resentencing.

              Under 18 U.S.C. § 1028A(a)(1), a person convicted of

specified     predicate       offenses   (including      18     U.S.C.         § 1029(a))

faces a mandatory two-year consecutive prison term if in the

course of committing the other offenses he “knowingly . . .

possesses     []   or   uses,    without      legal    authority,          a        means   of

identification of another person.”              18 U.S.C. § 1028A(a)(1).                    In

Flores-Figueroa,        the    Supreme    Court       held    that        to    obtain      a

conviction                                                                             under

§ 1028A(a)(1), “the Government [must] show that the defendant

knew that the [unlawfully used] means of identification . . .

belonged to another person.”             129 S. Ct. at 1894.               At the time

of Agyepong’s guilty plea, the established authority in this

circuit was United States v. Montejo, 442 F.3d 213 (4th Cir.


                                          5
2006), which held that the Government was not required to prove

that a defendant actually knew that the means of identification

belonged       to     another       person        when      he     used    it        without

authorization.        Id. at 217.        The Supreme Court abrogated Montejo

in Flores-Figueroa by holding that § 1028A(a)(1) requires the

Government to show that the defendant knew that the means of

identification he unlawfully used actually belonged to another

person,     as      opposed    to   being         merely    counterfeit.             Flores-

Figueroa, 129 S. Ct. at 1894.

               Agyepong admitted to using a device provided by his

co-defendant to skim or steal credit card numbers.                                His co-

defendant      then       re-encoded   these        stolen       numbers   onto       credit

cards.     At the time of his arrest, Agyepong was with his co-

defendant and had eight re-encoded credit cards on his person.

We conclude that this evidence established that Agyepong knew

that     the     credit     card    numbers        he     used    belonged      to     other

individuals          as     opposed      to        being         merely    counterfeit.

Accordingly, we find that Agyepong has not credibly asserted his

legal innocence and that the district court did not abuse its

discretion by denying Agyepong’s motion to withdraw his guilty

plea.

               Agyepong also seeks to challenge the amount of loss

attributed to him for sentencing purposes and the assignment of

two    criminal      history    points    for       two    convictions     for       driving

                                              6
while impaired.          Generally, “‘the doctrine [of the law of the

case] posits that when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent

stages in the same case.’”            United States v. Aramony, 166 F.3d

655, 661 (4th Cir. 1999) (quoting Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 815-16 (1988)).                  The law of the

case must be applied:

     in all subsequent proceedings in the same case in the
     trial court or on a later appeal . . . unless: (1) a
     subsequent   trial  produces  substantially  different
     evidence, (2) controlling authority has since made a
     contrary decision of law applicable to the issue, or
     (3) the prior decision was clearly erroneous and would
     work manifest injustice.

Aramony, 166 F.3d at 661 (quoting Sejman v. Warner-Lambert Co.,

845 F.2d 66, 69 (4th Cir. 1988)); see Doe v. Chao, 511 F.3d 461,

464-66    (4th     Cir.    2007)    (discussing     mandate     rule    and     its

exceptions).

           We affirmed the district court’s loss calculations in

Agyepong’s       first    appeal.       Moreover,        Agyepong    could    have

challenged the criminal history points assigned to him for his

driving while impaired convictions, but he did not do so.                       See

Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510

F.3d 474, 481 (4th Cir. 2007) (“[A] remand proceeding is not the

occasion for raising new arguments or legal theories.”); United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (stating that

mandate   rule    “forecloses       relitigation    of    issues    expressly    or

                                        7
impliedly decided by the appellate court,” as well as “issues

decided by the district court but foregone on appeal . . .”).

Because       neither      of     these     issues    falls       within       any     of     the

exceptions         to   the     law-of-the-case      doctrine,          we    conclude       that

Agyepong is foreclosed from raising these claims in this appeal.

                  Finally, turning to Agyepong’s sentence, we review it

under    a    “deferential        abuse-of-discretion             standard.”           Gall    v.

United       States,      552    U.S.     38,   41   (2007).       In    conducting          this

review, we “must first ensure that the district court committed

no significant procedural error, such as failing to calculate

(or improperly calculating) the [g]uidelines range, treating the

[g]uidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)          [(2006)]      factors,       selecting     a    sentence          based     on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.”               Id. at 51. “When rendering a sentence, the

district court must make an individualized assessment based on

the facts presented,” applying 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) (internal

quotation         marks   and    emphasis       omitted).         The    court    must       also

“state       in    open   court     the     particular      reasons          supporting       its

chosen sentence” and “set forth enough to satisfy” this court

that    it        has   “considered       the    parties’     arguments          and    has    a



                                                8
reasoned    basis     for    exercising         [its]      own     legal      decisionmaking

authority.”       Id. (internal quotation marks omitted).

            Once we have determined that the sentence is free of

procedural        error,         we      must           consider       the       substantive

reasonableness        of    the       sentence,         “tak[ing]      into     account    the

totality of the circumstances.”                     Gall, 552 U.S. at 51.               If the

sentence is within the appropriate guidelines range, this court

applies a presumption on appeal that the sentence is reasonable.

See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).

            In this case, the district court correctly calculated

the advisory guidelines range.                       Although the court committed

procedural      error       in    failing          to    provide       an    individualized

assessment     of     Agyepong’s        case,      we    conclude      that     the     court’s

omission    did     not    affect      Agyepong’s         substantial         rights.       See

United   States       v.   Lynn,       592    F.3d      572,     580   (4th     Cir.    2010).

Furthermore, neither counsel nor Agyepong has articulated any

factors to overcome the appellate presumption of reasonableness

afforded Agyepong’s within-guidelines sentence.                             Accordingly, we

conclude that the district court did not abuse its discretion in

sentencing Agyepong.

            In accordance with Anders, we have reviewed the entire

record   for    any     meritorious          issues      and   have     found    none.      We

therefore      affirm      the    district         court’s       judgment.       This     court

requires that counsel inform Agyepong, in writing, of the right

                                               9
to petition the Supreme Court of the United States for further

review.     If Agyepong requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move   in    this   court   for    leave   to   withdraw   from

representation. Counsel’s motion must state that a copy thereof

was served on Agyepong.

            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




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