**UN PUBLISHED** 
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 Easter n 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 un published per curiam opi nion

. 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 S tates Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM Domiko Derrill Davis appeals his fifty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 procedur al sentencing error by failing to consider an amendment to the Guidelines, pending at the t ime 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 distri ct 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 t he 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.3d3 337, 342 (4t h 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 t w o objection s to the P resentence R eport , including application of USSG § 4A1.1(e). Davis confirmed his intention to waive these arguments. Moreover, he maintained this position throughout the hearing. T herefore , the issue is not reviewable by this court. , 507 U.S. at 732

- 33).

Accordin gly, 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