UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4620
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEWAYNE ROY WILSON, a/k/a Dub, a/k/a New Jersey, a/k/a Jonah
James Levant, III,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:12-cr-00035-GEC-BWC-1)
Submitted: May 1, 2014 Decided: May 6, 2014
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research & Writing Attorney, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Ryan M.
Christian, Sr., Special Assistant United States Attorney,
Catherine Fata, 3rd Year Law-Student Intern, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
DeWayne Roy Wilson was convicted by a jury of
conspiracy to distribute and possess with intent to distribute
100 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846 (2012), and distribution of cocaine, possession
with intent to distribute heroin, and possession with intent to
distribute crack cocaine, all in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (2012). At sentencing, Wilson withdrew
his objections to the presentence investigation report (PSR) and
the Sentencing Guidelines calculations therein. The district
court sentenced Wilson to 168 months of imprisonment. On
appeal, Wilson contests only the district court’s imposition of
a two-level enhancement for his leadership role in the offense.
He argues that the evidence showed that he did not exercise
control over or direct the actions of any other person, but
merely acted in concert with them. We affirm.
Generally, unpreserved errors in sentencing are
reviewed for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). However, a
defendant may waive appellate review of a sentencing error if he
raises and then knowingly withdraws an objection to the error
before the district court. See United States v. Horsfall, 552
F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant’s
withdrawal of objection to upward departure precluded appellate
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review of departure); United States v. Rodriguez, 311 F.3d 435,
437 (1st Cir. 2002) (“A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.”).
An appellant is precluded from challenging a waived
issue on appeal. Id. Such a waiver is distinguishable “from a
situation in which a party fails to make a timely assertion of a
right—what courts typically call a ‘forfeiture,’” id. (quoting
Olano, 507 U.S. at 733), which, as noted above, may be reviewed
on appeal for plain error. Olano, 507 U.S. at 733-34. In this
case, as noted above, counsel withdrew all objections to the
PSR. Wilson has therefore waived appellate review of the
propriety of the enhancement for a leadership role.
Accordingly, we affirm the district court’s judgment.
We remand to the district court, however, for correction of two
minor clerical errors in the written judgment. The “nature of
offense” description of counts three and four should be amended
to read “Possession with Intent to Distribute heroin,” and
“Possession with Intent to Distribute “crack” cocaine,”
respectively, and the count numbers should be amended to reflect
that the counts were in a superseding indictment. 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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