[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                U.S.
                        ________________________ ELEVENTH CIRCUIT
                                                                 MAY 17, 2011
                               No. 10-12399                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                   D.C. Docket No. 4:09-cr-00073-RH-WCS-6

UNITED STATES OF AMERICA,

                                                  lllllllllllllllllllllPlaintiff-Appellee,

                                     versus

JUNIOR DOGUER,

                                              lllllllllllllllllllllDefendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                (May 17, 2011)

Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

      Appellant pled guilty under a plea agreement to Counts One, Two , and

Eight of a nine-count indictment returned against him and others. Count One
charged him with conspiracy to traffic and use unauthorized access devices, in

violation of 18 U.S.C. §§ 371, 1029(b)(2) and (c); Count Two charged fraud in

connection with counterfeit credit cards or access devices, in violation of 18

U.S.C. §§ 1029(b)(2) and (c); Count Eight charged aggravated identity theft, in

violation of 18 U.S.C. § 1028A. The district court sentenced appellant to

concurrent prison terms of 60 months on Count One and 97 months on Count 2

and a consecutive prison term of 24 months on Count Eight. He now appeals his

sentences.

      Appellant argues that the district court erred by imposing a two-level

enhancement of his offense level, pursuant to U.S.S.G. § 2B1.1(b)(10), for “(A)

possession or use of any (i) device making equipment” or “(B) production or

trafficking of any (i) unauthorized access device or counterfeit access device”

because he was also subject to the mandatory 24 months consecutive sentence on

Count Eight. He relies on the commentary to U.S.S.G. § 2B1.6, which restricts the

application of “specific offense characteristics for the transfer, possession, or use

of a means of identification when determining the sentence for the underlying

offense.” U.S.S.G. § 2B1.6, comment (n. 2).

      “We review the district court's legal interpretations of the Sentencing

Guidelines under a de novo standard of review and we must accept its factual

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determinations unless they are clearly erroneous.” United States v. Zaldivar, 

, 1350 (11th Cir. 2010) (citations omitted), cert. denied, 

(2011). Because appellant did not object to the district court’s application of the

two-level enhancement under § 2B1.1(b)(10), we review this issue for plain error.

United States v. Bonilla, 

, 1238-39 (11th Cir. 2009) (applying plain

error review to sentencing arguments raised for the first time on appeal), cert.

denied, 

(2010). To succeed on this point, appellant must show (1)

an error that (2) is plain, (3) affects substantial rights, and (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 

, 732, 

, 1776, 

(1993). An

error cannot be deemed plain where “there is no precedent from the Supreme

Court or this Court directly resolving” a doubtful question of statutory

construction. United States v. Lejarde-Rada, 

, 1291 (11th Cir.

2003).

      Appellant cannot establish that the district court plainly erred in its

application of the two-level enhancement. We have not yet addressed the scope of

the commentary to U.S.S.G. § 2B1.6 as applied to the § 2B1.1(b)(10) specific

offense characteristics. The presentence investigation report (“PSI”) states that the

§ 2B1.1(b)(10) enhancement applies under (A)(i) for “possession or use of any

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device-making equipment” because the “offense included an encoder” and under

(B)(i) for “production or trafficking of any (i) unauthorized access device or

counterfeit access device” because the “debit cards in this case were produced

with the express intent to defraud.” The limitation on application of specific

offense characteristics in the commentary to § 2B1.6 extends only to “transfer,

possession, or use of a means of identification,” such as a card, code, account

number, or PIN. U.S.S.G § 2B1.6, comment (n. 2); 18 U.S.C. §§ 1028(d)(7)(D),

1029(e)(1). The offense conduct that triggered the § 2B1.1(b)(10) enhancement in

this case involved both the use of an encoder to produce counterfeit debit cards

and the production of debit cards, rather than merely the “transfer, possession, or

use” of those debit cards. Thus, the plain language of the relevant guidelines,

commentary, and referenced statutes support the district court’s application of

§ 2B1.1(b)(10) in this case.

      Appellant’s contention that the factual basis for his plea agreement does not

support the enhancement is wholly without merit. He never objected to the factual

basis for the enhancement, i.e., use of an encoder and production of debit cards,

and he withdrew his objection to his designation as a “handler,” which the PSI

described as including the activity of “reencoding cards.” See 

(“failure to object to allegations of fact in a PSI admits those facts for

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sentencing purposes”). Although the offense conduct also involved “transfer,

possession or use” of counterfeit debit cards, the district court did not rely on this

conduct for application of the § 2B1.1(b)(10) two-level increase.

AFFIRMED.




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