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UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.
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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 18 U.S.C. §§ 2, 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 18 U.S.C. § 922(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, 811 F.3d 621, 622 (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, 591 F.3d 263, 295 (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, 774 F.3d 812, 815 (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, 947 F.3d 187, 191 (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, 278 F.3d 389, 395
(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, 955 F.3d 238, 245-46 (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, 676
F.3d 376, 381-82 (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, 461 F.3d 433, 437-38 (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, 153 F.3d 130, 133 (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, 774 F.3d at 816. 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 18
U.S.C. § 3624(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, 552 U.S. 38, 41 (2007).
This review entails consideration of both the procedural and substantive reasonableness of
the sentence. Id. at 51. 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 18 U.S.C.
§ 3553(a) factors, and sufficiently explained the selected sentence. Id. at 49-51. We then
consider the substantive reasonableness of the sentence, evaluating “the totality of the
circumstances.” Id. at 51. 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 18
U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (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, 28 F.4th 553, 561 (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, 26 F.4th 610, 626 (4th Cir.), cert. denied, 143 S. Ct. 310 (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, 606 F.3d 171, 178 (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, 958 F.3d 240,
243 (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, 957 F.3d 204, 212-13 (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, 951 F.3d 167, 174-75 (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, 957 F.3d at 214. 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, 756 F.3d at 306. 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, 668 F.3d 95, 101
(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, 557 F.3d 866, 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, 28 F.4th 487, 495
(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, 893 F.3d 1218, 1220-21 (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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