UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4038

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

LENNY LYLE CAIN, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:06-cr-00551-RDB-3) 

Submitted: December 1, 2009 Decided: December 14, 2009 

Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges. 

Dismissed in part, affirmed in part, vacated in part, and 

remanded by unpublished per curiam opinion. 

William Francis Xavier Becker, Rockville, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, 

Christopher J. Romano, Assistant United States Attorney, 

Baltimore, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Lenny Lyle Cain appeals his conviction for aggravated 

identity theft in violation of 18 U.S.C. § 1028A(a)(1) (2006), 

and his sentence after pleading guilty to possessing false 

identification documents, aggravated identity theft, possessing 

a seal of the Social Security Administration knowing it was 

falsely made, and using the Social Security number of another 

person. On appeal, he contends that the district court erred in 

finding there was a sufficient factual basis for his aggravated 

identity theft conviction in light of Flores-Figueroa v. United 

States, 129 S. Ct. 1886 (2009), and in calculating his guideline 

range on the other counts. Specifically, Cain argues that the 

district court erred in not granting his request for a downward 

departure under U.S. Sentencing Guidelines Manual § 4A1.3(b)(1) 

(2007). The Government concedes there is no evidence in the 

record showing Cain’s knowledge that the means of identification 

involved in his aggravated identity theft conviction belonged to 

another person as required under § 1028A(a)(1), but contends his 

sentence on the other counts was both proper and reasonable. 

Before entering judgment on a guilty plea, a district 

court must determine that there is a factual basis for the plea. 

Fed. R. Crim. P. 11(b)(3). The rule is designed to protect a 

defendant who is in the position of pleading voluntarily with an 

understanding of the nature of the charge but without realizing 

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that his conduct does not actually fall within the charge. 

United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007) 

(citations omitted). “It is ‘well settled that a defendant may 

raise on direct appeal the failure of a district court to 

develop on the record a factual basis for a plea.’” United 

States v. Ketchum, 550 F.3d 363, 366 (4th Cir. 2008) (quoting 

United States v. Mitchell, 104 F.3d 649, 652 n.2 (4th Cir. 

1997)). We review the district court’s determination for abuse 

of discretion, and we will not find an abuse of discretion so 

long as the district court could reasonably have determined that 

there was a sufficient factual basis based on the record before 

it. Mastrapa, 509 F.3d at 660 (citations omitted). Since Cain 

did not challenge the Rule 11 proceedings in the district court, 

we review his challenge now for plain error. Id. at 657. 

Because we conclude that the record contains no factual basis 

showing Cain’s knowledge that the means of identification 

involved in his aggravated identity theft conviction belonged to 

another person as required under § 1028A(a)(1), we vacate the 

conviction and sentence for that conviction. 

Cain also contends that the district court erred in 

calculating his advisory guideline range on the other counts. 

We review a sentence under a deferential abuse-of-discretion 

standard. See Gall v. United States, 552 U.S. 38, 51 (2007). 

The first step in this review requires us to ensure that the 

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district court committed no significant procedural error, such 

as improperly calculating the guideline range. United States v. 

Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 

2525 (2008). In assessing a sentencing court’s application of 

the guidelines, we review its legal conclusions de novo and its 

factual findings for clear error. United States v. Allen, 446 

F.3d 522, 527 (4th Cir. 2006). We then consider the substantive 

reasonableness of the sentence, taking into account the totality 

of the circumstances. Gall, 552 U.S. at 51. 

On appeal, Cain notes the objections he made in the 

district court and contends the district court erred in not 

granting his request for a downward departure under USSG 

§ 4A1.3(b)(1). We dismiss this part of Cain’s appeal because a 

district court’s decision not to depart from the sentencing 

guidelines is not reviewable on appeal unless the court 

mistakenly believed that it lacked authority to depart. See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). To 

the extent that Cain otherwise challenges the district court’s 

calculation of his advisory guideline range and sentence, we 

find no error or abuse of discretion by the district court. 

We therefore vacate Cain’s conviction and sentence for 

aggravated identity theft; dismiss his appeal in part; affirm 

his other convictions and sentences; and remand to the district 

court for further proceedings consistent with this opinion. We 

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grant Cain’s motion to advance consideration of this appeal. 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. 

DISMISSED IN PART, AFFIRMED IN PART,

VACATED IN PART, AND REMANDED