                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4221


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

IVO SVETOZAROV DAMYANOV,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:11-cr-00120-CCB-1)


Submitted:   December 21, 2012            Decided:   January 7, 2013


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


Affirmed by unpublished per curiam opinion.


Jonathan A. Gladstone, LAW OFFICES OF JONATHAN GLADSTONE,
Annapolis, Maryland, for Appellant.    Rod J. Rosenstein, United
States Attorney, Kristi O’Malley, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Ivo    Svetozarov          Damyanov         pled      guilty      without    a    plea

agreement      to    conspiracy          to     commit         access      device      fraud,    in

violation of 18 U.S.C. §§ 371, 1029(a)(1), (b)(2) (2006) (count

one), aiding and abetting access device fraud, in violation of

18   U.S.C.    § 2    (2006)        and    18     U.S.C.         § 1029(a)(1),         (e)(1)-(2)

(count four), and aiding and abetting aggravated identity theft,

in   violation       of   18    U.S.C.          §§ 2,      1028A(a)(1),          (c)(4)    (2006)

(count five).         Damyanov appeals his sentence, challenging the

district      court’s      application            of       the      two-level       enhancement

under   U.S.       Sentencing       Guidelines            Manual        § 2B1.1(b)(11)(B)(i)

(2011) for an offense involving the production or trafficking of

an   unauthorized         access     device          or    counterfeit          access    device.

Damyanov      contends      that,        because          he    was    also      sentenced       for

aggravated identity theft under 18 U.S.C. § 1028A, the district

court’s    application         of    the      two-level          enhancement        amounted      to

impermissible double counting.

              In    assessing        a    challenge            to    the     district     court’s

application of the Guidelines, we review the district court’s

factual findings for clear error and its legal conclusions de

novo.      United     States        v.    Alvarado         Perez,       609     F.3d     609,    612

(4th Cir. 2010).           When a Guidelines provision is applied based

on consideration of factors that already have been accounted for

by   another       provision    of        the    Guidelines           or   by    statute,       this

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amounts to double counting.                United States v. Reevey, 364 F.3d

151, 158 (4th Cir. 2004).                  “The Sentencing Commission plainly

understands        the     concept    of      double        counting,      and     expressly

forbids       it   where    it   is    not     intended.”              United     States    v.

Williams, 954 F.2d 204, 208 (4th Cir. 1992).

               Section     2B1.1(b)(11)        of    the     Guidelines         instructs   a

district court to increase a defendant’s offense level by two

levels if the offense involved:

       (A) the possession or use of any (i) device-making
       equipment, or (ii) authentication feature; (B) the
       production or trafficking of any (i) unauthorized
       access device or counterfeit access device, or (ii)
       authentication feature; or (C)(i) the unauthorized
       transfer or use of any means of identification
       unlawfully to produce or obtain any other means of
       identification, or (ii) the possession of [five] or
       more means of identification that unlawfully were
       produced from, or obtained by the use of, another
       means of identification.

To    avoid    impermissible         double       counting        of   relevant    conduct,

however, section 2B1.6 of the Guidelines—the Guideline section

applicable to convictions for aggravated identity theft under

§ 1028A—limits           the     application           of      USSG       § 2B1.1(b)(11).

Specifically, the commentary instructs that, if a sentence under

the Guideline is imposed “in conjunction with” a sentence for

the      underlying         fraud      offense,             the        specific     offense

characteristics for “the transfer, possession, or use of a means

of     identification”         are    inapplicable.                USSG     § 2B1.6    cmt.

n.2.    Under 18 U.S.C. § 1028A(a)(1), a two-year prison sentence

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is required for the knowing “transfer[], possess[ion], or use[],

without    lawful    authority”            of     a    “means       of     identification        of

another person” during and in relation to certain underlying

offenses.       Although the exclusion language in Application Note 2

“tracks the language that triggers [§ 1028A]’s consecutive term

of     imprisonment, . . . [USSG]                 § 2B1.6          does    not     exclude      all

conduct described in” USSG § 2B1.1(b)(11).                                 United States v.

Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009).

             Here,       the     district             court     imposed        the      two-level

enhancement under USSG § 2B1.1(b)(11)(B)(i) based on Damyanov’s

production of unauthorized access devices—plastic cards encoded

with the credit and debit card account information Damyanov and

others     skimmed    from       automated            teller       machines.           The    plain

language of Application Note 2 is limited to offenses involving

“the transfer, possession, or use of a means of identification.”

USSG § 2B1.6 cmt. n.2.                 Moreover, the other Courts of Appeal

that     have    addressed           the     applicability                of   the      two-level

enhancement      where    the        evidence         showed       that    a   defendant       also

sentenced under § 1028A produced the unauthorized or counterfeit

access    device     have       held       that       the     enhancement        was      properly

imposed.        United States          v.    Perez,          432    F. App’x       930,      934-36

(11th Cir.       2011)     (No.       10–10778);             United       States     v.      Wiley,

407 F. App’x       938,        942    (6th Cir.             2011)     (Nos.      09–5789,      09–

5855); Jenkins-Watts, 574 F.3d at 962; United States v. Jones,

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551 F.3d 19, 25-26 (1st Cir. 2008).                    We therefore conclude that

the       district    court    did    not    err    in     applying          the    two-level

enhancement under USSG § 2B1.1(b)(11)(i) in this case.

               We also reject on review for plain error Damyanov’s

remaining challenges—premised on Application Note 4(A) to USSG

§ 1B1.1 and the rule of lenity—to the application of the two-

level enhancement.            Damyanov’s reliance on Application Note 4(A)

as    a    basis     for    error    in    this    case    is    wholly        unexplained.

Further, because Application Note 2 is clear on its face, the

rule of lenity is inapplicable.                    Cf. United States v. Cutler,

36 F.3d      406,    408    (4th    Cir.    1994)   (stating          that    the    rule   of

lenity is applicable to the Sentencing Guidelines where there is

present “a grievous ambiguity or uncertainty in the language and

structure” of the Guideline (internal quotation marks omitted)).

              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

this court and argument would not aid the decisional process.



                                                                                     AFFIRMED




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