United States v. Davis ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4805
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMIKO DERRILL DAVIS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00299-F-1)
Submitted: March 29, 2011 Decided: April 8, 2011
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Domiko Derrill Davis appeals his fifty-seven-month
sentence imposed after he pleaded guilty, without a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). We affirm.
Davis argues that the district court committed
procedural sentencing error by failing to consider an amendment
to the Guidelines, pending at the time of Davis’s sentencing,
that would eliminate the recency enhancement of U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.1(e) (2009). Davis contends
that despite the absence of an objection below, “proper
consideration of the [G]uidelines by the district court would
have given deference to the [Sentencing] Commission’s considered
view that recency points did not serve the purpose of sentencing
under [18] U.S.C. § 3553(a) (2006).” The Government asserts
that Davis’s explicit waiver of this argument at the sentencing
hearing waived his right to appeal this issue. We agree.
“Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional relinquishment
or abandonment of a known right.’” United States v. Olano,
507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)). When a defendant fails to raise an argument
before the district court, it is forfeited and we review the
issue for plain error. United States v. Massenburg, 564 F.3d
2
337, 342 (4th Cir. 2009). In contrast, waiver extinguishes
potential error under Fed. R. Crim. P. 52(b). Olano, 507 U.S.
at 733. When a claim of error has been waived, “it is not
reviewable on appeal.” United States v. Claridy, 601 F.3d 276,
284 n.2 (4th Cir. 2010) (quoting Olano, 507 U.S. at 732-33).
We conclude that Davis did not merely fail to raise
before the district court the argument he now advances; Davis
raised the argument and waived it. Counsel indicated that Davis
had asked him to waive two objections to the Presentence Report,
including application of USSG § 4A1.1(e). Davis confirmed his
intention to waive these arguments. Moreover, he maintained
this position throughout the hearing. Therefore, the issue is
not reviewable by this court.
Accordingly, we affirm the district court’s judgment.
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
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