United States v. Taylor

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4268

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

KIMBERLY TAYLOR,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00119-F-1)

Submitted: March 30, 2010 Decided: April 15, 2010

Before KING, DUNCAN, and AGEE, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Slade C. Trabucco, SULLIVAN, TRABUCCO & WAGONER, LLP,
Wilmington, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kimberly Taylor pled guilty to ten counts of bank

fraud, 18 U.S.C. § 1344 (2006) (Counts 1-10), and two counts of

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

(Counts 11-12). She was sentenced to a term of seventy months

imprisonment. Taylor appeals her sentence, contending that the

district court’s application of a two-level enhancement under

U.S. Sentencing Guidelines Manual § 2B1.1(b)(10)(C)(i) (2008),

for use of a means of identification (Social Security numbers)

in the commission of the bank fraud, was plain error. She also

argues that the sentence violated the Eighth Amendment and the

sentencing goals set out in 18 U.S.C. § 3553(a) (2006). We

agree that the increase in Taylor’s offense level for use of

Social Security numbers was plain error. United States v.

Olano, 507 U.S. 725, 732 (1993) (defendant must show that (1)

error occurred; (2) the error was plain; (3) the error affected

her substantial rights). We conclude that the error “seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings,” id., and that resentencing is necessary.

For the bank fraud convictions, Taylor’s total offense

level was 21 and her advisory guideline range was 37-46 months.

Taylor initially objected to the enhancement for use of Social

Security numbers, but withdrew the objection at sentencing. The

district court adopted the recommended guideline calculation in

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the presentence report and imposed a sentence of forty-six

months. The two-year sentences for the aggravated identity

theft offenses were required under 18 U.S.C. § 1028A to be

consecutive to any other term of imprisonment. See USSG

§ 2B1.6. The district court imposed a two-year sentence on each

count of aggravated identity theft, consecutive to the forty-

six-month bank fraud sentence, but concurrent with each other,

which resulted in a total sentence of seventy months.

Application Note 2 to § 2B1.6 states 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.” The government concedes that the two-level

increase under § 2B1.1(b)(10)(C)(i) for Taylor’s use of Social

Security numbers was plain error that increased her guideline

range and affected her substantial rights. The government

agrees that the case should be remanded for resentencing under

the correct guideline range of 30-37 months, rather than the

range of 37-46 months used by the district court. We agree, and

we exercise our discretion to notice the error.

Taylor also maintains that her sentence violated the

Eighth Amendment prohibition on cruel and unusual punishment

because the government arbitrarily charged her with two counts

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of aggravated identify theft which required sentences

consecutive to her sentence for bank fraud. We do not discern

any Eighth Amendment violation.

Last, Taylor argues that the district court erred by

simply stating that it had considered the relevant § 3553(a)

factors without discussing those factors in detail. Because we

are remanding Taylor’s case for resentencing, we will not

address this issue. We note, however, that on remand, the

district court should “apply the relevant § 3553(a) factors to

the specific circumstances of the case before it.” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).

For the reasons discussed, we vacate the sentence

imposed by the district court and remand for resentencing

without the enhancement under § 2B1.1(b)(10)(C)(i). 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.

VACATED AND REMANDED