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United States v. Dewayne Wilson, 13-4620 (2014)

Court: Court of Appeals for the Fourth Circuit Number: 13-4620 Visitors: 13
Filed: May 06, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4620 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEWAYNE ROY WILSON, a/k/a Dub, a/k/a New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. Affirme
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                            UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            2
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

                                          3

Source:  CourtListener

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