UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). He now appeals the resulting 115-month
sentence, arguing a four-level enhancement for 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. Richmond has filed a pro se supplemental brief
raising the same issue. The Government declined to file a
responsive brief. We affirm.
In the district court, Richmond challenged the
application of the sentencing enhancement, arguing the facts did
not support the enhancement. On appeal, however, Richmond
argues that the application of the enhancement violated his
Sixth Amendment right to a trial by jury, as articulated in
Alleyne v. United States, 133 S. Ct. 2151 (2013). Because
Richmond objected to the application of the 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 was plain, and that it affected his
substantial rights.” United States v. Robinson, 627 F.3d 941,
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954 (4th Cir. 2010) (internal quotation marks and alterations
omitted) (citing United States v. Olano, 507 U.S. 725, 734
(1993)). 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 or public reputation of judicial
proceedings.” 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. In Alleyne, the Supreme Court held that
any fact, other than 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. 133 S.
Ct. 2151, 2155, 2162–63 (2013). 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. See USSG § 2K2.1(b)(6)(B) (2012).
Therefore, the district court did not err in applying the
enhancement.
In accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
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meritorious issues for appeal. We therefore affirm the
judgment. This court requires that counsel inform Richmond, in
writing, of the right to petition the Supreme Court of the
United States for further review. 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
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