                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4700


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LLOYD BRIDGES WALLACE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00135-BR-1)


Submitted:   September 28, 2010           Decided:   December 3, 2010


Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Lloyd Bridges Wallace appeals from his conviction and

the fifty-four month sentence imposed after he pleaded guilty to

possession      of    stolen    mail    and    aggravated     identity     theft.

Counsel has filed an Anders v. California, 386 U.S. 738 (1967),

brief stating that he has discerned no meritorious issues, but

raising   the    issues    of    ineffective     assistance       of   counsel   by

failing to file a motion to suppress, and whether the district

court   erred    in    calculating     the    Sentencing    Guidelines     range.

Wallace did not file a pro se supplemental brief.                       We affirm

Wallace’s conviction, but vacate the sentence and remand for

resentencing.

           We may address on direct appeal a claim that counsel

was ineffective only if the ineffectiveness appears conclusively

on the face of the record.              United States v. Baldovinos, 434

F.3d 233, 239 (4th Cir. 2006).                We conclude that ineffective

assistance does not conclusively appear on the record regarding

Wallace’s claim that counsel failed to file a motion to suppress

items found in the glove compartment during a search of his car.

           Next, Wallace alleges that the district court erred in

calculating      his    advisory       Sentencing      Guidelines       range    by

attributing     more    loss    than   the    amount   of   the   check   cashed,

applying a two-level increase for use of an identification card

to obtain another means of identification, and that he should

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not    have    received      a     two-year            consecutive       sentence    under      18

U.S.C. § 1028A (2006), for use or possession of a fraudulent

identification         in   relation      to       the        aggravated    identity       theft.

When determining a sentence, the district court must calculate

the appropriate advisory Guidelines range and consider it in

conjunction with the factors set forth in 18 U.S.C. § 3553(a)

(2006).        Gall    v.    United      States,          552    U.S.    38,   49-50     (2007).

Appellate review of a district court’s imposition of a sentence,

“whether      inside,       just    outside,            or    significantly     outside        the

Guidelines      range,”      is    for    abuse          of    discretion.         Id.    at   41.

Sentences within the applicable Guidelines range may be presumed

by    the    appellate      court    to       be       reasonable.         United    States     v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

               The court did not err in calculating the loss.                                  The

loss was not stipulated to by the parties in the plea agreement

and    the     agreement         indicated             that     the     sentence     would     be

established by the district court and the Sentencing Guidelines.

Wallace contends that he understood that his loss would be fixed

at $7,700 - the amount of the check he fraudulently cashed.

However, Wallace was linked to several other checks, bringing

the    total    intended      loss       to    $22,279.03.              Therefore,       Wallace

received a four-level increase, instead of a two-level increase.

Under the Guidelines, loss is the greater of the actual loss or

intended       loss.        U.S.    Sentencing               Guidelines     Manual       § 2B1.1,

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comment. (n.3(A)) (2009).                The two-year mandatory consecutive

sentence for the aggravated identity theft was proper because a

bank fraud is an enumerated felony triggering the consecutive

sentence provision.           See USSG § 2B1.6.           However, our review of

the   sentence        identified    an   error     in   the     application     of   one

enhancement used to calculate the sentence.                      The district court

applied a two-level enhancement under USSG § 2B1.1(b)(10)(C)(i)

for     the    unauthorized         transfer      or    use     of     any   means    of

identification unlawfully to produce or obtain any other means

of    identification.              Wallace       initially       objected      to    the

application of the enhancement, arguing that he did not produce

any   other     identification         documents.        The    presentence     report

applied       the     enhancement      because     Wallace      used    a    fraudulent

Georgia identification card to open a credit union account in a

victim’s name.

              Although Wallace objected to the calculation of his

sentence based on the applicable facts, he did not argue that

the   enhancement        should    not   have    been    applied     because    he   was

receiving a consecutive sentence under § 1028A.                        Therefore, this

portion of the sentence is reviewed for plain error.                            United

States v. Olano, 507 U.S. 725, 732-37 (1993).                        Under the plain

error    test,      a   defendant    must      show    that    (1)   error   occurred;

(2) the       error     was   plain;     and     (3)    the    error     affected    his

substantial rights.           Id. at 732.        Even when these conditions are

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satisfied, this court may exercise its discretion to notice the

error   only     if    the   error      “seriously      affect[s]          the   fairness,

integrity or public reputation of judicial proceedings.”                                    Id.

(internal quotation marks omitted).

            Application Note 2 to USSG § 2B1.6 directs 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.”           Therefore, the two-level increase under

§ 2B1.1(b)(10)(C)(i)          for       Wallace’s        use      of       the        Georgia

identification        card   to    obtain       the   credit     union       account        was

erroneously      applied.         The    correct      Guidelines       range      for       the

possession of stolen mail count is 18-24 months, rather than the

range of 24-30 months used by the district court.                                The court

sentenced Wallace to a 30-month sentence for the stolen mail

count and then added the mandatory consecutive 24-month sentence

for   the   aggravated       identity     theft       count,    for    a    total      of    54

months of imprisonment.

            We     conclude    that      the    enhancement       was       indeed     plain

error, which affected Wallace’s substantial rights because it

increased    his      Guidelines     range      for    the     possession        of   stolen

mail, and resulted in a sentence above the Guidelines range that

should have been applied.               We therefore exercise our discretion

                                            5
to notice the error, vacate the sentence, and remand the case

for resentencing.

          In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal.   We therefore affirm the convictions, but vacate the

sentence and remand for resentencing.      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 AND REMANDED IN PART




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