                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4053


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:    December 29, 2008            Decided:   February 20, 2009


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


Affirmed in part, vacated in part, and remanded by unpublished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


Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant.       Anna Mills
Wagoner, United States Attorney, Robert M. Hamilton, Assistant
United   States Attorney,   Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Pursuant to a plea agreement, 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.    § 1019(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

sentenced Agyepong to fifteen months’ imprisonment on Count One

and   a   consecutive       twenty-four           months’    imprisonment     on   Count

Eleven.      Agyepong      appeals      his   sentence,        contending     that   the

district court erred in its loss calculation and in calculating

his   criminal      history.         We   affirm      the    loss    calculation,    but

remand for resentencing for the reasons stated below.

              In    the    presentence        report        (“PSR”),    the   probation

officer determined that the base offense level for Count One ∗ was

six, pursuant to USSG § 2B1.1(a)(2).                        Finding that the amount

of    loss    exceeded      $10,000,       the      probation       officer   increased

Agyepong’s base offense level by four levels, pursuant to USSG

§ 2B1.1(b)(1)(C).           Because the offense involved the possession


      ∗
       The probation officer did not group Counts One and Eleven,
although they were closely related, because Count Eleven,
aggravated identity theft, 18 U.S.C. § 1028A(a)(1), (a)(2),
carried a mandatory consecutive prison term.      U.S. Sentencing
Guidelines Manual § 5G1.2(a) (2007); 18 U.S.C. § 1028A(a)(1),
(b)(2).



                                              2
or     use    of     device-making            equipment,         the     probation      officer

increased Agyepong’s offense level by two levels, pursuant to

USSG § 2B1.1(b)(1)(A)(i).                  The probation officer recommended a

two-level          decrease       in     offense          level        for    acceptance         of

responsibility, pursuant to USSG § 3E1.1(a).                             Based on his prior

criminal       convictions,            the      probation          officer         found        that

Agyepong’s subtotal criminal history score was three.                                  However,

the probation officer added two points under USSG § 4A1.1(d),

because he found that Agyepong committed the instant offense

while on probation; the total criminal history score of five

points placed Agyepong in Criminal History Category III.                                        The

guidelines range for offense level ten and criminal history III

was    ten    to    sixteen       months      in       prison.      Thus,     the    probation

officer determined that Agyepong’s guidelines range for Count

One was ten to sixteen months in prison, with a mandatory two-

year    consecutive         sentence       for         Count   Eleven,       pursuant      to    18

U.S.C. § 1028A(a)(1), (b)(2).

               Agyepong       objected         to       the    four-level       increase         in

offense      level    for     a   loss     greater        than    $10,000      based       on    the

$26,914.90 loss calculation in the PSR, claiming that he was

unaware of the full scope of the scheme and did not realize the

credit       card    purchases         were    fraudulent.              At   the    sentencing

hearing,      the     Government        called         United     States     Secret     Service

Special Agent James Albert Shively, Jr., who testified about

                                                   3
specific transactions.                Agyepong also testified, admitting that

he     illegally        obtained        credit          card       account      numbers      for

co-conspirator, Ahdi Ghazi Alshare, but denying that he ever

personally made purchases with a fraudulent credit card.

               The district court overruled Agyepong’s objections to

the    loss    determinations          in    the       PSR.        Furthermore,       the   court

denied       Agyepong     the    acceptance            of     responsibility       reduction.

Without the acceptance of responsibility adjustment, Agyepong’s

offense level was twelve, resulting in a guidelines range of

fifteen       to    twenty   months.             The    court      sentenced     Agyepong      to

fifteen       months    in   prison         on    Count       One,     the    bottom    of    the

guidelines          range,      and     a        consecutive         twenty-four        months’

imprisonment on Count Eleven.

               Agyepong      argues     first          on     appeal   that     the    district

court improperly calculated the amount of loss attributable to

him.     In a fraud case, the Government must establish the amount

of    loss    for     sentencing       purposes          by    a    preponderance       of    the

evidence.          United States v. Pierce, 409 F.3d 228, 234 (4th Cir.

2005).        This court reviews the amount of loss, to the extent

that it is a factual matter, for clear error.                                United States v.

West, 2 F.3d 66, 71 (4th Cir. 1993).                           This deferential standard

of review requires reversal only if this court is “left with the

definite and firm conviction that a mistake has been committed.”

United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005).

                                                  4
We find that the district court did not clearly err in its loss

calculations.

              Agyepong       also        challenges      the       district      court’s

calculation       of   his    criminal       history     category.         Under      USSG

§ 4A1.1(d), a defendant who “committed the instant offense while

under any criminal justice sentence, including probation,” will

be assessed two criminal history points.                        In addition to the

three    criminal      history       points      Agyepong       received      for     past

criminal convictions, he received two points under § 4A1.1(d)

for committing his subject offenses while on probation.                             He now

contends that the district court erred by assessing these two

criminal history points.             Because Agyepong did not object to his

criminal history calculation in the district court, we review

his claim for plain error.                 United States v. Olano, 507 U.S.

725,    732   (1993)     (error      occurred,       which     was   plain,     affected

defendant’s       substantial        rights,     and    “seriously       affects       the

fairness,        integrity,         or     public      reputation       of      judicial

proceedings”).

              The subject offenses occurred from April 1, 2004, to

September 9, 2004.           As the Government concedes, a review of the

PSR reflects that Agyepong was not on probation at the time of

the    instant    offenses     and       therefore     the   two     criminal    history

points were incorrectly applied.                 Thus, the district court erred

in calculating Agyepong’s guidelines range.

                                             5
              Without     these        criminal       history     points,          Agyepong’s

criminal history category would be II.                       Under USSG ch. 5, pt. A

(sentencing        table),    with       offense       level     twelve       and       criminal

history category II, Agyepong’s guidelines range on Count One

should have been twelve to eighteen months.                         The fifteen-month

sentence Agyepong received on this Count is within that range.

Nevertheless, the Government concedes that Agyepong is entitled

to be resentenced based on this error.                      We agree.

              In United States v. McCrary, 887 F.2d 485 (4th Cir.

1989),   we    determined         that      the     defendant    was     entitled         to    be

resentenced        when   the      district         court    imposed      a    sentence        of

imprisonment         under        an     erroneously           calculated           sentencing

guidelines range--even when, as here, the sentence imposed fell

within the overlap between the correct and erroneous ranges.                                   In

such circumstances, we held that the appellate court “cannot

confidently assume” that the factors influencing the district

court’s selection of a specific term of imprisonment within the

erroneous range would necessarily lead the court to select the

same term within the correct range.                     Id. at 489.            The case was

remanded      in    order       that,       “apprised       of    the        error      in     the

presentence        report     and       the       applicability         of     a     different

guidelines     range,       the    district         court    [could]         reconsider        the

sentence   imposed,       either       on     the    [existing]     record         or    on    the

basis of further proceedings.”                 Id.

                                               6
             The         Supreme        Court         has       endorsed       the    principle

underlying McCrary even after United States v. Booker, 543 U.S.

220 (2005).         Post-Booker, “a district court should begin all

sentencing proceedings by correctly calculating the applicable

Guidelines range.            As a matter of administration and to secure

nationwide consistency, the Guidelines should be the starting

point and the initial benchmark.”                       Gall v. United States, 128 S.

Ct. 586, 596 (2007) (internal citations omitted).                                     Gall thus

confirms     the    holding        in    McCrary       that      the    district      court   may

weigh the specific factors relevant to the defendant to arrive

at    the   reasonably       appropriate              sentence     only    after       correctly

determining        the    starting        point--i.e.,            the   correct       guidelines

range.

             Accordingly,           the     error       in       this    case    is    not    the

district     court’s         imposition           of        a    fifteen-month         term    of

imprisonment on Count One, but its acceptance of the Probation

Office’s report placing Agyepong in criminal history category

III   upon   an     incorrect           factual       basis      for    that    determination.

That error, based upon a finding that Agyepong was on probation

when he was not, affected his right to a determination of the

correct guidelines range, the district court’s starting point

for evaluating his sentence.

             As in McCrary, we cannot know whether the district

court would have imposed the same term of imprisonment had it

                                                  7
“appreciated the possibility that an alternative, ‘overlapping’

guideline[s] range might apply.”                 887 F.2d at 489.          But because

the district court sentenced Agyepong to the minimum term of

imprisonment under the guidelines range it mistakenly applied,

it is reasonable to presume the court would have imposed a lower

sentence had it been aware of the correct guidelines range.                         See

United States v. Price, 516 F.3d 285, 289 n.28 (5th Cir. 2008)

(The district court’s imposition of the minimum term under the

incorrect       range     “demonstrate[d]          ‘at     least     a      reasonable

probability that the district court would have imposed a lesser

sentence     if    it     had     properly       applied       the   Guidelines.’”)

Accordingly, we find that Agyepong has satisfied the plain error

standard of review.

            Accordingly, although we affirm the district court’s

loss calculation, we vacate Agyepong’s sentence and remand for

resentencing      under    the   correctly       calculated     guidelines      range.

Agyepong’s      motions    to    file   a   pro    se    supplemental       brief   are

denied.     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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