UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DEWAYNE CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:18-cr-00017-MR-WCM-1)
Submitted: February 1, 2022 Decided: February 24, 2022
Before DIAZ and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dewayne Clark appeals his conviction and 188-month sentence imposed
after he pled guilty, pursuant to a plea agreement, to possession of a firearm by a felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Counsel has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), stating there are no meritorious issues for
appeal but questioning whether Clark’s sentence was properly enhanced under the Armed
Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). Clark filed pro se supplemental briefs
in which he challenges his ACCA designation, asserts that his ACCA enhancement violates
double jeopardy, claims that his conviction is a violation of his right to bear arms under the
Constitution, and suggests that his conviction has been invalidated by Rehaif v. United
States, 139 S. Ct. 2191 (2019). The Government has declined to file a response brief.
Finding no error, we affirm.
Because Clark did not challenge his conviction in the district court, we review his
Rehaif argument for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). To establish plain error, Clark must show that an error occurred,
that the error was plain, and that the error affected his substantial rights. See Olano, 507
U.S. at 732; see also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (holding
that, in the guilty plea context, an error affects substantial rights if there is “a reasonable
probability that, but for the error, [the defendant] would not have entered the plea”). Even
if Clark makes this three-part showing, however, correction of the error remains within our
discretion, which “should not [be] exercise[d] . . . unless the error seriously affects the
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fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732
(brackets and internal quotation marks omitted).
We reject Clark’s suggestion that his conviction is no longer lawful under Rehaif.
In Rehaif, the Supreme Court held that, to obtain a felon in possession conviction, “the
Government must prove both that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred from possessing a firearm.”
Rehaif, 139 S. Ct. at 2200. The record reflects that Clark knew he was a felon at the time
of the offense and that he was previously convicted of numerous felonies. Under the
circumstances, Rehaif affords him no relief. See Greer v. United States, 141 S. Ct. 2090,
2097 (2021) (holding that a “defendant faces an uphill climb in trying to satisfy the
substantial-rights prong of the plain-error test based on an argument that he did not know
he was a felon” because “[i]f a person is a felon, he ordinarily knows he is a felon”).
Moreover, a review of Clark’s plea hearing establishes that the district court complied with
the requirements of Fed. R. Crim. P. 11 and that Clark’s plea was knowingly, voluntarily,
and intelligently made, with full knowledge of the consequences attendant to his guilty
plea. We therefore affirm Clark’s conviction.
Next, we review a criminal sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness, “under a deferential abuse-of-discretion
standard.” United States v. King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review requires us to ensure that the
district court committed no “significant procedural error.” See United States v. Evans, 526
F.3d 155, 162 (4th Cir. 2008) (internal quotation marks omitted). Procedural errors include
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“failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51.
In reviewing a sentence for substantive reasonableness, we “examine[] the totality
of the circumstances,” and, if the sentence is within the properly calculated Guidelines
range, we presume on appeal that the sentence is substantively reasonable. United States
v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). “Such a presumption can only
be rebutted by showing that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Upon review, we conclude that Clark’s sentence is procedurally and substantively
reasonable. The district court correctly calculated Clark’s Guidelines range, including his
armed career criminal enhancement. The court adopted the Guidelines range of 188 to 235
months set forth in Clark’s presentence report, listened to the parties’ arguments, and
afforded Clark an opportunity to allocute. After declining to vary downward to the
mandatory minimum and explaining its reasoning, the court imposed a sentence at the
bottom of the applicable Guidelines range. We therefore affirm Clark’s sentence.
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In accordance with Anders, we have reviewed the entire record and found no
meritorious issues for appeal. * We therefore affirm the district court’s judgment. This
court requires that counsel inform Clark, in writing, of the right to petition the Supreme
Court of the United States for further review. If Clark 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 Clark. 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
*
We have considered the remaining challenges raised by Clark in his pro se briefs
and find them to be meritless.
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