UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished 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Unpublished opinions are not binding precedent in this circuit.
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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, 
4

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 
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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