USCA4 Appeal: 22-4414 Doc: 34 Filed: 01/16/2024 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4414

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY DEWAYNE DAYE,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Kenneth D. Bell, District Judge. (5:21-cr-00030-KDB-DSC-1)

Submitted: September 29, 2023 Decided: January 16, 2024

Before QUATTLEBAUM and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion.

ON BRIEF: John G. Baker, Federal Public Defender, Melissa S. Baldwin, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Elizabeth M. Greenough, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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PER CURIAM:

Anthony Dewayne Daye appeals his convictions and 151-month sentence imposed

following his guilty plea to dealing in firearms without a license and aiding and abetting,

in violation of

, 922(a)(1)(A), 923(a), 924(a)(1)(D), and eight counts of

possessing a firearm after being convicted of a felony, in violation of

(g)(1).

On appeal, Daye contends that his guilty plea was not knowing and intelligent and that his

sentence is procedurally and substantively unreasonable. For the following reasons, we

affirm his convictions and sentence, and we remand for correction of a clerical error in the

judgment.

We first consider the validity of Daye’s guilty plea. Prior to accepting a guilty plea,

a court must conduct a plea colloquy in which it informs the defendant of, and determines

that the defendant understands, the nature of the charges to which he is pleading guilty, any

applicable mandatory minimum sentence, the maximum possible penalty he faces, and the

various rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1); United

States v. Williams,

(4th Cir. 2016). We “accord deference to the trial

court’s decision as to how best to conduct the mandated colloquy with the defendant.”

United States v. Moussaoui,

(4th Cir. 2010) (internal quotation marks

omitted).

Because Daye neither raised an objection during the Fed. R. Crim. P. 11 proceeding

nor moved to withdraw his guilty plea in the district court, we review the plea colloquy

only for plain error. United States v. Sanya,

(4th Cir. 2014). To establish

plain error, Daye “must show that: (1) an error occurred; (2) the error was plain; and (3) the

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error affected his substantial rights.” United States v. Lockhart,

(4th

Cir. 2020) (en banc).

Daye argues that the magistrate judge failed to comply with the requirements of

Rule 11 in advising him of the maximum penalty he faced as a result of his guilty plea. We

disagree. First, while the magistrate judge did not explicitly advise Daye that his sentences

could run consecutively, Rule 11 “does not require a district court to inform the defendant

of [even] mandatory consecutive sentencing.” United States v. General,

(4th Cir. 2002). Indeed, as “[n]umerous other courts” have held, “a district court’s failure

to advise a defendant that sentences could run consecutively does not render a guilty plea

invalid” so long as the district court advises the defendant of the maximum statutory

penalty on each count, because “the logical inference from a listing of the maximum terms

of imprisonment for the individual counts is that the terms of imprisonment for each could

run consecutively.” United States v. Adams,

(2d Cir. 2020)

(collecting cases). Here, we conclude that the magistrate judge properly advised Daye of

the maximum statutory penalty as to each count of conviction and, thus, complied with the

rule’s mandate regarding the possible term of imprisonment that Daye could receive.

Daye further argues that the magistrate judge was obliged to advise him of the

possible penalties he could face if he violated the terms of his supervised release. Contrary

to Daye’s assertions, there is no requirement that a district court inform a defendant at a

Rule 11 hearing as to the potential revocation sentencing penalties that could be imposed

upon violation of a condition of supervised release. See United States v. Nicholson,

(4th Cir. 2012) (noting that defendants need not be made aware of

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collateral consequences of guilty plea and defining collateral consequences as those

“beyond the direct control of the court” (emphasis omitted)). Here, the magistrate judge

properly informed Daye of the significance of supervised release by advising him that he

could be subject to an additional term of imprisonment if he violated the terms of his

supervised release. We reject Daye’s contention that potential revocation penalties

constituted part of the maximum term of imprisonment for his criminal offenses, as a

revocation sentence—imposed to punish a breach of the sentencing court’s trust—is

separate and distinct from any punishment imposed for underlying criminal conduct. See

United States v. Crudup,

(4th Cir. 2006).

Daye next argues that the magistrate judge failed to advise him of the maximum

term of supervised release that he could receive for his § 922(g)(1) convictions. While the

magistrate judge informed Daye that he would be subject to a term of supervised release

for these convictions, he did not advise Daye of the three-year maximum for that term; this

was error. United States v. Thorne,

(4th Cir. 1998). However, a vacatur

of Daye’s guilty plea is not warranted because he has not shown that this error affected his

substantial rights. In the guilty plea context, a defendant can establish that his substantial

rights are affected by showing a reasonable probability that he would not have pleaded

guilty but for the Rule 11 omission. Sanya,

. Daye points to no evidence

in the record suggesting that he would not have pleaded guilty absent the error, and we

conclude that he has failed to make the required showing. The magistrate judge properly

advised Daye that he was subject to a three-year term of supervised release due to his

conviction for selling firearms without a license, and the district court ultimately sentenced

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Daye to that term. Therefore, the magistrate judge correctly informed Daye of the

maximum term of supervised release he could be subject to based on his plea. See

(e) (mandating that multiple terms of supervised release run concurrently).

Accordingly, the magistrate judge’s error did not affect Daye’s substantial rights.

Turning to Daye’s sentence, we review a sentence for reasonableness, applying “a

deferential abuse-of-discretion standard.” Gall v. United States,

(2007).

This review entails consideration of both the procedural and substantive reasonableness of

the sentence.

. In determining procedural reasonableness, we consider whether

the district court properly calculated the defendant’s Sentencing Guidelines range, gave the

parties an opportunity to argue for an appropriate sentence, considered the

(a) factors, and sufficiently explained the selected sentence.

. We then

consider the substantive reasonableness of the sentence, evaluating “the totality of the

circumstances.”

. A sentence is presumptively substantively reasonable if it “is

within or below a properly calculated Guidelines range,” and this “presumption can only

be rebutted by showing that the sentence is unreasonable when measured against the

(a) factors.” United States v. Louthian,

(4th Cir. 2014).

Daye first contends that two statements by the district court—regarding the

likelihood that illegally sold firearms will be used to commit additional crimes as well as

the court’s understanding of Daye’s criminal history—were factually erroneous, thus

rendering his sentence procedurally unreasonable. We review the district court’s factual

findings for clear error. United States v. McDonald,

(4th Cir. 2022). A

factual finding is clearly erroneous when the reviewing court “on the entire evidence” is

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“left with the definite and firm conviction that a mistake has been committed.” United

States v. Hasson,

(4th Cir.), cert. denied,

(2022) (internal

quotation marks omitted). Further, as Daye did not challenge either of these findings in

the district court, we review these claims only for plain error.

We have reviewed the record and conclude that, even assuming that the district court

erred by sentencing Daye based, in part, on clearly erroneous factual findings, the

Government has shown that the alleged errors did not affect Daye’s substantial rights. See

United States v. Knight,

(4th Cir. 2010) (in sentencing context, defendant

must show “that he would have received a lower sentence had the error not occurred”).

The district court’s consideration of Daye’s criminal history and recidivism and its concern

with protecting the public by deterring illegal firearm sales were both aggravating

sentencing factors that the court properly considered. Even without the statements to which

Daye now objects, the court’s concerns regarding those factors were valid and supported

by the record. Daye is therefore not entitled to relief on these claims.

Next, Daye argues that the district court failed to adequately address his

nonfrivolous mitigating arguments in explaining his sentence. “A district court is required

. . . to explain adequately the sentence imposed to allow for meaningful appellate review

and to promote the perception of fair sentencing.” United States v. Lewis,

(4th Cir. 2020) (internal quotation marks omitted). “[A] district court’s explanation

should provide some indication that the court considered the § 3553(a) factors . . . and also

that it considered [the] defendant’s nonfrivolous arguments for a lower sentence.” United

States v. Nance,

(4th Cir. 2020) (cleaned up). However, “in a routine

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case, where the district court imposes a within-Guidelines sentence, the explanation need

not be elaborate or lengthy.” United States v. Arbaugh,

(4th Cir.

2020) (internal quotation marks omitted). Further, when the court has fully addressed the

defendant’s “central thesis” in mitigation, it need not “address separately each supporting

data point marshalled on its behalf.” Nance,

. We have reviewed the record

and conclude that the district court adequately considered the parties’ arguments and

explained its rationale for imposing Daye’s 151-month sentence.

Finally, Daye argues that his sentence is substantively unreasonable. However, he

fails to rebut the presumption of reasonableness attached to his within-Guidelines-range

sentence. See Louthian,

. We further discern no plain error resulting from

the district court’s failure to vary downwardly based on Daye’s policy disagreement with

the Sentencing Guidelines. * “Although a sentencing court [is] entitled to consider policy

decisions underlying the Guidelines, including the presence or absence of empirical data .

. . it is under no obligation to do so,” United States v. Rivera-Santana,

(4th Cir. 2012) (citation omitted). In any event, the district court plainly had a rational

basis for adhering to the advisory sentencing range, as “semiautomatic weapons are likely

more dangerous than other kinds of weapons.” United States v. Barron,

, 870-

* We recognize that Daye preserved a challenge to the substantive reasonableness of his sentence by arguing for a lower sentence than the one he received. However, plain error review applies to Daye’s argument regarding his policy disagreement with the Guidelines because Daye’s objection below “was too general to alert the district court” to the specific challenge he now raises on appeal. United States v. Hope,

(4th Cir. 2022) (internal quotation marks omitted).

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71 (8th Cir. 2009) (internal quotation marks omitted) (rejecting substantive reasonableness

challenge based on policy disagreement with U.S. Sentencing Guidelines Manual

§ 2K2.1); see also United States v. Ibanez,

(10th Cir. 2018)

(rejecting challenge based on same policy disagreement with the Guidelines). We thus

discern no abuse of discretion in the district court’s imposition of a 151-month term of

imprisonment.

Accordingly, we affirm Daye’s convictions and sentence. We remand, however,

for the limited purpose of correcting a clerical error in the judgment, which incorrectly lists

the § 922(g)(1) offense charged in Count Nine as occurring on February 26, 2020, rather

than February 26, 2021. See Fed. R. Crim. P. 36 (governing clerical errors). 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 AND REMANDED

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