US v. Dewayne Richmond, No. 13-4705 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4705 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEWAYNE LAMONT RICHMOND, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00055-CCE-1) Submitted: February 27, 2014 Decided: March 4, 2014 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III, Federal Public Defender, Mireille P. Clough, Assistant Federal Public Defender, Winston-Salem, North Carolina, for Appellant. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dewayne Lamont Richmond pled guilty to felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). sentence, He arguing a now appeals four-level the resulting enhancement for 115-month possessing a firearm in connection with another felony offense, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2012), was unconstitutionally applied because it was not charged in the indictment. raising the Richmond same issue. responsive brief. In has filed The a pro se Government supplemental declined to brief file a We affirm. the district court, Richmond challenged the application of the sentencing enhancement, arguing the facts did not support argues that the enhancement. the application On of appeal, the however, enhancement Richmond violated his Sixth Amendment right to a trial by jury, as articulated in Alleyne v. Richmond United objected States, 133 to application the S. Ct. 2151 of (2013). the Because enhancement at sentencing only on the ground that the factual foundation was lacking, not that the enhancement violated his constitutional rights, our review is for plain error. Under the plain error standard, a defendant must establish that the district court erred, that the error substantial rights. was plain, and that it affected his United States v. Robinson, 627 F.3d 941, 2 954 (4th Cir. 2010) (internal quotation marks and alterations omitted) (citing (1993)). United States v. Olano, 507 U.S. 725, 734 And even if a defendant meets this heavy burden, an appellate court has discretion whether to recognize the error, and should not do so unless the error seriously affects the fairness, integrity proceedings. or public reputation of judicial United States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010) (internal quotation marks omitted). Here, the district court did not commit error much less plain error and we therefore affirm its application of the sentencing enhancement. any fact, other than In Alleyne, the Supreme Court held that a prior conviction, that increases the statutory minimum punishment is an element that must be charged in the indictment and proved beyond a reasonable doubt. Ct. 2151, 2155, 2162 63 (2013). 133 S. The Court cautioned that its holding did not disturb judicial factfinding at sentencing for facts that do not impact the statutory punishment. Id. at 2163. The sentencing enhancement Richmond challenges affects only the advisory Guidelines calculations and not the statutory mandatory minimum punishment. Therefore, the See district USSG court did § 2K2.1(b)(6)(B) not err (2012). in applying the have reviewed the enhancement. In remainder of accordance the with record in Anders, this 3 we case and have found no meritorious judgment. writing, issues for appeal. We therefore affirm the This court requires that counsel inform Richmond, in of the right to petition United States for further review. the Supreme Court of the If Richmond requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Richmond. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. AFFIRMED 4
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