                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4305



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RYAN LEE SMITH,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:06-cr-00834-DCN)


Submitted:   July 18, 2007                 Decided:   July 30, 2007


Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ryan Lee Smith pled guilty without the benefit of a plea

agreement to one count of identity theft, in violation of 18 U.S.C.

§ 1028(a)(7), (b)(1)(D) (2000).            Although he did not object to the

calculations in his presentence report (“PSR”), he argued three

prior state convictions were part of the same course of conduct as

his federal offense, pursuant to U.S. Sentencing Guidelines Manual

(“USSG”) § 1B1.3 (2005).               Therefore, Smith argued his federal

sentence should run concurrently with his state sentence pursuant

to USSG § 5G1.3(b).            The district court dismissed this argument,

finding the three state convictions were sentenced concurrently

with       unrelated   state    drug   convictions,   which   Smith’s   counsel

conceded did not constitute relevant conduct under USSG § 1B1.3.

The court sentenced Smith to twenty-four months’ imprisonment, at

the bottom of the sentencing guidelines range and a sufficient term

to qualify for the Bureau of Prisons’ 500-hour drug treatment

program. Smith timely appealed, and we affirm the district court’s

judgment.1

               Smith argues the district court erroneously believed it

had no discretion to fashion a reasonable punishment pursuant to

USSG § 5G1.3(c).2        The Government contends this argument was not



       1
        Smith does not challenge his conviction on appeal.
       2
      Smith does not contend his sentence was unreasonable under
United States v. Booker, 543 U.S. 220 (2005).

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raised below.      See United States v. Rouse, 362 F.3d 256 (4th Cir.

2004) (holding USSG § 5G1.3(c) argument waived when defense counsel

failed to cite that section or argue district court was required to

impose    concurrent    sentence).     Smith    contends   he   sufficiently

referenced USSG § 5G1.3 generally at the sentencing hearing.

Unlike in United States v. McCormick, 58 F.3d 874, 877 (2d Cir.

1995), however, Smith’s counsel did not merely mistakenly reference

the provision of USSG § 5G1.3 upon which he sought to rely at the

sentencing hearing.       Smith does not make “essentially the same

argument to the district court that he now raises on appeal,” see

id., and therefore we review his argument for plain error.

            To meet the plain error standard: (1) there must be an

error; (2) the error must be plain; and (3) the error must affect

substantial rights.      United States v. Olano, 507 U.S. 725, 732-34

(1993).    If the three elements of the plain error standard are met,

we may exercise our discretion to notice the error only if the

error     seriously    affects   the   fairness,    integrity     or    public

reputation of judicial proceedings.          Id. at 736.   After thoroughly

reviewing    the   applicable    materials,    including    the   sentencing

transcript, we conclude Smith fails to meet this standard.

            Accordingly, we affirm the district court’s judgment. 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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