United States v. Dwayne Stallings ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4389
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE LEE STALLINGS, a/k/a Smiley,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Terrence W. Boyle, Chief District Judge. (4:17-cr-00066-BO-1)
Submitted: February 27, 2019 Decided: March 18, 2019
Before DUNCAN, THACKER, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North Carolina, for
Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Bryan M. Stephany, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne Lee Stallings pled guilty, without a written plea agreement, to being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).
The district court found Stallings’ Sentencing Guidelines range to be 100 to 120 months’
imprisonment, and sentenced Stallings to 108 months’ imprisonment. On appeal,
Stallings argues that his sentence is procedurally and substantively unreasonable. We
affirm.
We review a criminal sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Blue, 877
F.3d 513, 517 (4th Cir. 2017). This review requires consideration of both the procedural
and substantive reasonableness of the sentence. Gall, 552 U.S. at 51. In determining
procedural reasonableness, we examine, among other factors, whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, selected a sentence based on facts that were not clearly erroneous, and
sufficiently explained the selected sentence. Id. at 49-51. Only after determining that the
sentence is procedurally reasonable do we consider whether it is substantively reasonable,
“tak[ing] into account the totality of the circumstances.” Id. at 51.
Stallings alleges four procedural errors. First, Stallings argues that his sentence is
procedurally unreasonable because the district court failed to verify that he and his
defense counsel had read and discussed the presentence report. Stallings did not object at
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the sentencing hearing, so we review for plain error. United States v. Cohen, 888 F.3d
667, 678 (4th Cir. 2018). “To prevail on plain error review, an appellant must show
(1) that the district court erred, (2) that the error was plain, and (3) that the error affected
his substantial rights.” Id. at 685. “If each of those three requirements are satisfied, we
possess discretion on whether to recognize the error, but . . . should not do so unless the
error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks omitted).
District courts are required to determine that defendants have read and discussed
the PSR with their counsel prior to sentencing. United States v. Miller, 849 F.2d 896,
897-98 (4th Cir. 1988); Fed. R. Crim. P. 32(i)(1)(A). Upon a review of the record, we
conclude that the district court did not inquire whether Stallings had read and discussed
the PSR, nor was it clear from the record that Stallings had done so. Accordingly, the
district court committed error, and that error was plain. However, because Stallings has
not shown that the error prejudiced him in any way, Stallings has failed to satisfy the
third plain-error prong, and we decline to vacate the sentence on this ground. See United
States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
Stallings’ second assignment of error is the district court’s failure to notify him
that he might be eligible to appeal in forma pauperis. Again, because Stallings did not
object at the sentencing hearing, we review for plain error. See Cohen, 888 F.3d at 678.
Stallings concedes that he was not prejudiced by this violation, and we agree. He
therefore cannot prevail under plain error review.
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Stallings next argues that the district court erred in applying to his Sentencing
Guidelines calculation a 4-level enhancement for possessing the firearm in connection
with another felony offense. U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B)
(2016). This enhancement applies as long as “the firearm had some purpose or effect
with respect to the other offense, including if the firearm was present for protection or to
embolden the actor.” United States v. Jenkins, 566 F.3d 160, 162 (4th Cir. 2009)
(citation, brackets, and internal quotation marks omitted). In the case of a drug-
trafficking offense, the enhancement applies when “a firearm is found in close proximity
to drugs, drug-manufacturing materials, or drug paraphernalia.” USSG § 2K2.1 cmt.
n.14(B).
A district court’s finding that, based on the specific facts of a case, a firearm had
the potential for facilitating another felony offense is a factual determination, subject to
the clearly erroneous standard of review. Jenkins, 566 F.3d at 163. Here, the district
court found sufficient evidence to support a finding that the firearm was used in
connection with drug trafficking. On this record, we conclude that the district court’s
factual finding is not clearly erroneous. Accordingly, we find the district court did not
abuse its discretion in applying the 4-level enhancement for possessing a firearm in
connection with another offense.
Stallings also contends that the district court erred by applying the 2-level
enhancement for obstruction of justice. The obstruction of justice enhancement applies
when “the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation . . . of the instant offense of
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conviction.” USSG § 3C1.1. Stallings does not dispute that he convinced his girlfriend
to lie to the police on his behalf and claim ownership of the stolen firearm found in his
home. Stallings argues, however, that the enhancement should not apply because he
turned himself in shortly thereafter and there is no evidence that police believed his
girlfriend or that her statement significantly impeded the investigation. We conclude that
Stallings’ conduct in recruiting a third party into a scheme to misdirect the police is
sufficient to justify the application of the obstruction of justice enhancement.
Accordingly, the district court did not abuse its discretion in applying the enhancement.
Finally, Stallings argues that his sentence is substantively unreasonable because,
due to the alleged procedural errors, the sentence was based on an incorrectly calculated
Guidelines range. We disagree. Our review of the record reveals no significant
procedural errors, and we conclude that the Guidelines range was correctly calculated.
Stallings has not pointed to any other basis on which to conclude that his sentence is
substantively unreasonable, and we discern none. See United States v. Louthian, 756
F.3d 295, 306 (4th Cir. 2014) (“Any sentence that is within or below a properly
calculated Guidelines range is presumptively [substantively] reasonable.”).
We therefore affirm Stallings’ sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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