                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5082



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOYCE KAY GODWIN, a/k/a Joyce Kay Atkins,
a/k/a Brenda Kay Adkins, a/k/a Joyce Ann
Lowrance, a/k/a Joyce Ann Cox,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00211)


Submitted:   July 20, 2007                 Decided:   August 9, 2007


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Thomas Cullen, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Joyce Kay Godwin pled guilty to one count of conspiracy

to commit offenses against the United States, in violation of 18

U.S.C. § 371 (2000), two counts of uttering counterfeit and forged

securities and aiding and abetting such conduct, in violation of 18

U.S.C. §§ 2, 513 (2000), two counts of aggravated identity theft

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

§§ 2, 1028(A) (West 2000 & Supp. 2007) and two counts of bank fraud

and aiding and abetting such fraud, in violation of 18 U.S.C. §§ 2,

1344 (2000).      On appeal, Godwin claims that the district court

erred in sentencing her under the sentencing guidelines, that it

did not make sufficient findings of fact with respect to sentencing

factors, that it erred not considering whether to impose concurrent

or consecutive sentences on the two aggravated identity theft

convictions and that the district court erred not giving her the

opportunity to allocute at sentencing.       We find the district court

plainly   erred   in   not   considering   certain   factors   under   the

sentencing guidelines prior to ordering sentences consecutive to

each other on the aggravated identity theft convictions.               We

further find the court plainly erred in not allowing Godwin to

allocute.     Accordingly, we affirm the convictions and vacate the

sentence and remand for resentencing.

            At sentencing, Godwin challenged enhancements for her

role in the offense, the intended loss for which she was held


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responsible and the number of victims.                 The district court cited

its    reliance     on    affidavits     and    information     contained       in   the

presentence investigation report and rejected Godwin’s arguments.

The    court    imposed    a    concurrent      sentence     within    the    advisory

guidelines on most of the counts and imposed consecutive sentences

on the aggravated identity theft convictions.

               We find the district court did not err in determining the

range of imprisonment under the sentencing guidelines and imposing

a sentence within the guidelines.                Merely because our review of a

sentence is for reasonableness and we presume sentences within the

guidelines are reasonable, does not mean that the guidelines are

mandatory as opposed to advisory.                See Rita v. United States, 127

S. Ct. 2456, 2462 (2007); United States v. Moreland, 437 F.3d 424,

433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).

               We   further     find    the    district    court   made   sufficient

findings of fact prior to rejecting Godwin’s challenge to the

sentencing enhancements for her role in the offense and the amount

of intended loss.

               However,    we    find    the    district     court    plainly    erred

imposing consecutive sentences under the two aggravated identity

theft conviction without consulting the guidelines.                           Under 18

U.S.C.A. § 1028A(b)(4) (West Supp. 2007), if a defendant has more

than    one    conviction       under    §    1028A,   the   court     may,    in    its

discretion, run the sentences concurrently with each other, in


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whole or in part.         The court’s discretion is informed by the

guidelines and policy statements.         The district court was required

to   refer    to   the   commentary    for    U.S.   Sentencing   Guidelines

Manual § 5G1.2 (2005) for guidance regarding the imposition of

sentences under the two counts.         See USSG § 2B1.6, cmt. n.1.     Under

USSG § 5G1.2, cmt. n.2(B), courts are instructed to consider the

following     non-exhaustive    list    of    factors   prior   to   imposing

sentences on multiple aggravated identity theft convictions:

             (i) The nature and seriousness of the
             underlying offenses. For example, the court
             should   consider   the    appropriateness  of
             imposing     consecutive,      or    partially
             consecutive,   terms    of   imprisonment  for
             multiple counts of 18 U.S.C. § 1028A in a case
             in which an underlying offense for one of the
             18 U.S.C. § 1028A offenses is a crime of
             violence or an offense enumerated in 18
             U.S.C. § 2332b(g)(5)(B);

             (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;

             (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.

             Because it appears from the record that the district

court did not consider these factors, we find plain error, vacate

the sentence and remand for resentencing.




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           Godwin also claims the district court plainly erred in

not giving her the opportunity to allocute prior to sentencing.

Before imposing sentence, the district court shall address the

defendant personally in order to permit the defendant to speak or

present any information to mitigate the sentence.            See Fed. R.

Crim. P. 32(i)(4)(A)(ii).     In United States v. Cole, 27 F.3d 996

(4th Cir. 1994), we held that the denial of allocution constitutes

plain error on direct appeal warranting a remand for resentencing,

in those instances in which there is a possibility the defendant

could receive a lower sentence.          We noticed the error because

“[w]hen a defendant was unable to address the court before being

sentenced and the possibility remains that an exercise of the right

of allocution could have led to a sentence less than that received,

we are of the firm opinion that fairness and integrity of the court

proceedings 250 would be brought into serious disrepute were we to

allow the sentence to stand.”          Cole, 27 F.3d at 999; see also

United States v. Muhammed, 478 F.3d 247 (4th Cir. 2007).         Thus, we

vacate the sentence and remand for resentencing to give Godwin the

opportunity to allocute.

           Accordingly, while we affirm the convictions, we vacate

the sentence and remand for resentencing in order for the district

court to consider the sentencing factors under USSG § 5G1.2, cmt.

n.2(B),   applying   those   factors    to   the   two   convictions   for

aggravated identity theft.     We further remand for resentencing to


                                 - 5 -
provide Godwin the opportunity to allocute.   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 IN PART, VACATED IN PART, AND REMANDED




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