United States v. David Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4536
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ELIJAH SMITH, a/k/a Miami Dave,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:16-cr-00120-D-11)
Submitted: May 31, 2019 Decided: June 6, 2019
Before GREGORY, Chief Judge, and MOTZ and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Elijah Smith, Appellant Pro Se. Jennifer P. May-Parker, 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Unpublished opinions are not binding precedent in this circuit.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:
David Elijah Smith appeals his convictions and 120-month sentence imposed
following his guilty plea to transfer of a firearm to a prohibited person, in violation of 18
U.S.C. § 922(d) (2012), and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2012). On appeal, Smith challenges the factual basis supporting
his guilty plea and the procedural reasonableness of his sentence. Finding no reversible
error, we affirm.
“Before entering judgment on a guilty plea, the [district] court must determine that
there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The district court
possesses wide discretion in finding a factual basis, and it need only be subjectively
satisfied that there is a sufficient factual basis for a conclusion that the defendant
committed all of the elements of the offense.” United States v. Stitz, 877 F.3d 533, 536
(4th Cir. 2017) (internal quotation marks omitted), cert. denied, 138 S. Ct. 1572 (2018).
In addition, “the district court may conclude that a factual basis exists from anything that
appears on the record.” United States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008)
(internal quotation marks omitted). Because Smith did not move to withdraw his guilty
plea or otherwise preserve any error in the plea proceedings, we review the challenge to
the plea for plain error. United States v. Lockhart, 917 F.3d 259, 262 (4th Cir. 2019).
In its factual basis proffer, the Government alleged that Smith, a convicted felon,
unlawfully possessed a firearm, which he then sold to his step-grandson, another known
felon. And during the plea colloquy, Smith acknowledged both possessing and
transferring the firearm at issue—admissions that “carry a strong presumption of verity.”
2
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal quotation marks
omitted). Thus, we discern no plain error in the district court’s finding that a factual basis
supported Smith’s guilty plea.
Turning to the sentencing challenges, we review for procedural reasonableness,
applying a deferential abuse of discretion standard. United States v. Blue, 877 F.3d 513,
517 (4th Cir. 2017). In addition, when assessing issues relating to the Sentencing
Guidelines, “we review questions of law de novo and findings of fact for clear error.”
United States v. Hawley, 919 F.3d 252, 255 (4th Cir. 2019).
First, Smith contests the district court’s application of U.S. Sentencing Guidelines
Manual § 2K2.1(b)(6) (2016), which requires a four-level enhancement if the defendant
“possessed or transferred any firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with another felony offense.”
Based on testimony provided at the sentencing hearing, the district court determined that
Smith knew that his step-grandson held a leadership role in a violent gang. Because
Smith had reason to believe that his step-grandson would use the firearm for felonious
purposes, we agree that this evidence was sufficient to sustain the § 2K2.1(b)(6)
enhancement.
Next, Smith complains that, at sentencing, the district court prevented him from
orally objecting to various allegations in the presentence report. Even assuming the court
procedurally erred, our review of the record and the myriad objections Smith raises in his
informal brief confirms that such error was harmless. See Fed. R. Crim. P. 52(a); United
States v. Martinovich, 810 F.3d 232, 242 (4th Cir. 2016). Indeed, none of Smith’s minor
3
quibbles with the presentence report undermines the district court’s thorough sentencing
explanation, which justified Smith’s sentence based on the seriousness of the offenses,
Smith’s extensive criminal history, and the need to protect the public from Smith’s
criminal acts. See 18 U.S.C. § 3553(a)(1), (2)(A), (C) (2012). Thus, we conclude that
any procedural error did not result in a longer sentence. Martinovich, 810 F.3d at 243.
Accordingly, we affirm the judgment of the district court. 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
4