UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4805

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DOMIKO DERRILL DAVIS,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior 

District Judge. (5:09-cr-00299-F-1)

Submitted: March 29, 2011 Decided: April 8, 2011

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, 

Jennifer P. May-Parker, Kristine L. Fritz, Assistant United 

States Attorneys, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM

Domiko Derrill Davis appeals his fifty-seven-month 

sentence imposed after he pleaded guilty, without a plea 

agreement, to possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) (2006). We affirm.

Davis argues that the district court committed 

procedural sentencing error by failing to consider an amendment

to the Guidelines, pending at the time of Davis’s sentencing,

that would eliminate the recency enhancement of U.S. Sentencing 

Guidelines Manual

“Whereas forfeiture is the failure to make the timely 

assertion of a right, waiver is the ‘intentional relinquishment 

or abandonment of a known right.’” 

(“USSG”) § 4A1.1(e) (2009). Davis contends 

that despite the absence of an objection below, “proper 

consideration of the [G]uidelines by the district court would 

have given deference to the [Sentencing] Commission’s considered 

view that recency points did not serve the purpose of sentencing 

under [18] U.S.C. § 3553(a) (2006).” The Government asserts 

that Davis’s explicit waiver of this argument at the sentencing 

hearing waived his right to appeal this issue. We agree.

United States v. Olano, 

507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 

458, 464 (1938)). When a defendant fails to raise an argument 

before the district court, it is forfeited and we review the 

issue for plain error. United States v. Massenburg, 564 F.3d 
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337, 342 (4th Cir. 2009). In contrast, waiver extinguishes 

potential error under Fed. R. Crim. P. 52(b). Olano, 507 U.S.

at 733. When a claim of error has been waived, “it is not 

reviewable on appeal.” United States v. Claridy, 601 F.3d 276, 

284 n.2 (4th Cir. 2010) (quoting Olano

We conclude that Davis did not merely fail to raise 

before the district court the argument he now advances; Davis 

raised the argument and waived it. Counsel indicated that Davis 

had asked him to waive two objections to the Presentence Report, 

including application of USSG § 4A1.1(e). Davis confirmed his 

intention to waive these arguments. Moreover, he maintained 

this position throughout the hearing. Therefore, the issue is 

not reviewable by this court.

, 507 U.S. at 732-33).

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED