USCA4 Appeal: 23-4202 Doc: 43 Filed: 11/28/2023 Pg: 1 of 4

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4202

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSHUA EARL DEVON DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:21-cr-00244-D-1)

Submitted: November 21, 2023 Decided: November 28, 2023

Before WILKINSON and NIEMEYER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

ON BRIEF: Damon J. Chetson, CHETSON FIRM, PLLC, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4202 Doc: 43 Filed: 11/28/2023 Pg: 2 of 4

PER CURIAM:

Joshua Earl Devon Davis pled guilty, without a written plea agreement, to

possession of a firearm by a convicted felon, in violation of

(g)(1),

924(a)(2). * The district court sentenced Davis to 71 months’ imprisonment. On appeal,

Davis challenges the district court’s denial of his pretrial motion to suppress evidence that

law enforcement officers obtained during a traffic stop. Davis also argues that the district

court erred in calculating his advisory Sentencing Guidelines range by applying a

four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2021)

for using or possessing a firearm in connection with another felony offense. We dismiss

in part and affirm in part.

With respect to Davis’ appeal of the denial of his motion to suppress, “when a

defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings

conducted prior to entry of the plea and has no non-jurisdictional ground upon which to

attack that judgment except the inadequacy of the plea under [Fed. R. Crim. P.] 11.” United

States v. Glover,

(4th Cir. 2021) (cleaned up). Because Davis does not

dispute that he entered a valid and unconditional guilty plea, his challenge to the district

court’s denial of his motion to suppress “is not properly before us.” United States v.

* Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) convictions; the new penalty provision in

(a)(8) sets forth a statutory maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer Communities Act,

(c),

, 1329 (2022). The 15-year statutory maximum does not apply in this case, however, because Davis’ offense was committed before the June 25, 2022, amendment to the statute.

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Fitzgerald,

(4th Cir. 2016). Accordingly, we dismiss this portion of the

appeal.

Next, rather than evaluating the merits of Davis’ challenge to the calculation of his

Guidelines range, “we may proceed directly to an assumed error harmlessness inquiry.”

United States v. Gomez-Jimenez,

(4th Cir. 2014) (internal quotation

marks omitted). In other words, we may assume the alleged Guidelines “error occurred

and proceed to examine whether the error affected the sentence imposed.” United States

v. McDonald,

(4th Cir. 2017). “[W]e can find any error harmless if we

have (1) knowledge that the district court would have reached the same result even if it had

decided the [G]uidelines issue the other way, and (2) a determination that the sentence

would be reasonable even if the [G]uidelines issue had been decided in the defendant’s

favor.” United States v. Gondres-Medrano,

(4th Cir. 2021) (internal

quotation marks omitted). The claimed error will be deemed harmless only when we are

“certain” that these requirements are met. United States v. Gomez,

(4th

Cir. 2012).

Here, the first part of the inquiry is satisfied “because the district court has expressly

stated in a separate and particular explanation that it would have reached the same result”

even if it had erred in calculating the Guidelines. Gomez-Jimenez,

. With

respect to the second step of the analysis, we review a sentence for substantive

reasonableness by “tak[ing] into account the totality of the circumstances to determine

whether the sentencing court abused its discretion in concluding that the sentence it chose

satisfied the standards set forth in [18 U.S.C.] § 3553(a).” United States v. Nance, 957

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(4th Cir. 2020) (internal quotation marks omitted). The district court

appropriately balanced Davis’ offense conduct and significant, violent criminal history

with the mitigating factors he presented. The court further explained that the 71-month

sentence was necessary to promote respect for the law, provide just punishment, and afford

adequate deterrence. In light of the district court’s thorough discussion of the relevant

§ 3553(a) factors, we conclude that Davis’ sentence is reasonable. Accordingly, even if

we were to conclude that the district court erred by applying the disputed Guidelines

enhancement—an issue we do not reach—any error was harmless.

Accordingly, we dismiss the appeal to the extent Davis seeks to challenge the denial

of his suppression motion, see United States v. Bundy,

(4th Cir. 2004),

and we affirm the criminal judgment. 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.

DISMISSED IN PART, AFFIRMED IN PART

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