UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4461

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHIRLENE REESE BOONE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (2:10-cr-00054-F-1)

Submitted: March 27, 2012 Decided: April 23, 2012

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel 

Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A. 

WILLIAMS, P.A., Greenville, North Carolina, for Appellant. 

Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford-McKinney, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to her written plea agreement, Shirlene Reese 

Boone pled guilty to conspiracy to commit offenses against the 

United States, to wit: health care and mail fraud, in violation 

of 18 U.S.C. § 371 (2006) (“Count One”); aggravated identity 

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

§§ 1028A, 2 (2006) (“Count Two”); and failure to collect and pay 

over payroll taxes and aiding and abetting, in violation of 26 

U.S.C. §§ 7202, 2 (“Count Three”) (2006). The district court 

sentenced Boone to 144 months of imprisonment, consisting of 60 

months on Counts One and Three and 44 months on Count Two, all 

to be served consecutively. This appeal timely followed.

Boone first asserts there was an insufficient factual 

basis to support her guilty plea to aggravated identity theft 

because she was not convicted under one of the statutory 

sections or chapters enumerated in 18 U.S.C. § 1028A(c). Thus, 

Boone contends, the district court committed plain error in 

accepting the guilty plea to Count Two. Boone next argues her

attorney was ineffective during the sentencing phase because he 

failed to object, pursuant to United States v. Llamas, 599 F.3d 

381 (4th Cir. 2010), to the two sentencing enhancements 

predicated on the vulnerability of the victims of Boone’s fraud. 

Claiming that counsel’s ineffectiveness is evident on the face 

of the record, Boone asks this court to vacate her sentence and 
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to remand for resentencing. For the reasons that follow, we 

reject these contentions and affirm.

Boone pled guilty to knowingly possessing and using, 

without lawful authority, a means of identification of another 

person, during and in relation to the commission of health care 

fraud, in violation of 18 U.S.C.A. § 1347 (West 2000 and Supp. 

2011). On appeal, Boone contends that the aggravated identity 

theft statute, 18 U.S.C. § 1028A, requires that “a defendant 

must be convicted of the predicate felony during which the 

identification was used before section 1028A is triggered.” 

(Appellant’s Br. at 7) (emphasis added). Because she was 

convicted of violating 18 U.S.C. § 371, which is not enumerated 

in 18 U.S.C. § 1028A(c), Boone contends there was an 

insufficient factual basis for her guilty plea. 

Boone’s argument, however, is contrary to the plain 

wording of the statute. Subsection (a) discusses only a “felony 

violation” of any of the enumerated provisions in subsection 

(c). 18 U.S.C. § 1028A(a). Subsection (c), in turn, defines a 

“felony violation enumerated in subsection (c)” to mean “any 

offense that is a felony violation of” the enumerated statutory 

sections and chapters. 18 U.S.C. § 1028A(c) (emphasis added). 

Because the statutory text does not support Boone’s contention 

that there must be a conviction on the predicate felony offense, 

we must reject this argument. See Conn. Nat’l Bank v. Germain, 
4

503 U.S. 249, 253–54 (1992) (reiterating the judicial canon that 

“courts must presume that a legislature says in a statute what 

it means and means in a statute what it says there”); Ignacio v. 

United States, __ F.3d. __, 2012 WL 887594, at *5 (4th Cir. 

Mar. 16, 2012) (“[A]bsent an ambiguity in the words of a 

statute, our analysis begins and ends with the statute’s plain 

language.”). We thus conclude there was no error, let alone 

plain error,1 in the district court’s accepting Boone’s guilty 

plea to Count Two.2

Boone next contends her sentence should be vacated 

because counsel rendered constitutionally deficient assistance 

prior to and during sentencing. Specifically, Boone claims 

 1 Even if we were to conclude there was error, that error 

cannot be considered “plain” in the absence of any controlling 

contrary Fourth Circuit or Supreme Court authority. See United 

States v. Maxwell, 285 F.3d 336, 341-42 (4th Cir. 2002). In 

fact, there is a dearth of precedential support for Boone’s

argument. Although Boone relies on United States v. Luke, 628 

F.3d 114 (4th Cir. 2010), the Luke court did not rule that the 

“during and in relation to any felony violation” clause mandates 

a conviction on the predicate felony offense. Cf. Luke, 628 

F.3d at 123. The “felony violation” here was the offense of 

health care fraud, which is encompassed by § 1028A(c)(1). See

United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010) 

(“[C]onvictions for health care fraud qualif[y] as predicate 

felony offenses under 18 U.S.C. § 1028A(c)(1).”). 

2 This analysis renders moot Boone’s related contention that 

the predicate conviction must be a “substantive offense of 

conviction, not merely the object of a general conspiracy 

charge.” (Appellant’s Br. at 10) (relying on United States v. 

Phan, 121 F.3d 149, 152-53 (4th Cir. 1997)). 
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counsel should have objected to the two enhancements based on 

the vulnerable victims of the fraud, because the presentence 

report (“PSR”) lacked particularized findings regarding the 

victims’ unusual vulnerability and Boone’s knowledge thereof. 

Central to Boone’s argument is this court’s decision 

in Llamas, where we held that, to apply the vulnerable victim 

enhancement under U.S. Sentencing Guidelines Manual (“USSG”) 

§ 3A1.1(b)(1), the “sentencing court must determine that a 

victim was unusually vulnerable. . . . [and] then assess whether 

the defendant knew or should have known of such unusual 

vulnerability.” 599 F.3d at 388. This court accepted the 

proposition that, for the enhancement to apply, the sentencing 

court must offer “‘a fact-based explanation of why advanced age 

or some other characteristic made one or more victims unusually 

vulnerable to the offense conduct.’” Llamas, 599 F.3d at 388 

(quoting United States v. Vega-Iturrino, 565 F.3d 430, 434 (8th 

Cir. 2009)). Boone maintains that counsel’s failure to object 

based on Llamas amounts to per se deficient performance, because 

the specific facts necessary to support the enhancement were 

absent from the PSR and the court made no such factual findings 

at sentencing. Furthermore, the omission was prejudicial to 

Boone because the enhancements resulted in two two-level 

increases to her adjusted offense level and the elevated 
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Guidelines range, in turn, triggered the use of USSG § 5G1.2(d) 

to impose consecutive sentences. 

Boone aptly acknowledges that claims of ineffective 

assistance of counsel generally are not cognizable on direct 

appeal unless the record conclusively establishes counsel’s 

“objectively unreasonable performance” and resulting prejudice. 

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). 

Instead, ineffective assistance of counsel claims are most 

appropriately pursued in a motion under 28 U.S.C.A. § 2255 (West 

Supp. 2011) to allow for adequate development of the record. 

See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 

2010). The record here does not conclusively establish that 

counsel’s failure to assert the objection amounts to deficient 

performance, i.e., “performance . . . ‘below an objective 

standard of reasonableness’ measured by ‘prevailing professional 

norms.’” United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 

2011) (quoting Strickland v. Washington, 466 U.S. 668, 688 

(1984)). Given the opportunity in a § 2255 proceeding, counsel 

may provide a sound and reasonable explanation for not making 

the Llamas objection that is not readily discernible from the 

record in its present form. We therefore decline to consider 

Boone’s ineffective assistance of counsel claim at this 

juncture. 
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For these reasons, we affirm the district court’s 

judgment. Further, we deny Boone’s motion for 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