NOT RECOMMENDED FOR FULL - TEXT PUBLICATION File Name: 18a0371n.06 No. 18

- 5100 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. MENCHO DUMAS , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: SILER, GRIFFIN, and STRANCH, Circuit Judges. PER CURIAM. Mencho Dumas appeals his 100

- month sentence. As set forth below, we affirm. Dumas pleaded guilty to an indictment charging him with possession of a firearm by a convicted felon , i n violation of 18 U.S.C. § 922(g)(1). Dumas’s presentence report set forth a base offense level of 24 because he had at least two felony convictions for a crime of violence or controlled substance offense: a 2001 Tennessee convict ion for reckless homicide and a 2014 Tennessee conviction for possession of cocaine and marijuana with intent to sell. See USSG § 2K2.1(a)(2). Dumas received a 4

- level enhancement for using or possessing the firearm in connection with another felony offe nse , in that he pointed a shotgun at his girlfriend and “worked the action.” See USSG § 2K2.1(b)(6)(B). In his sentencing memorandum , Dumas objected to the base offense level of 24, arguing that his reckless homicide conviction should not be considered a crime of violence , and the 4

- level enhancement, arguing that the government could not prove use or possession of the firearm in connection with another felony offense.No. 18

- 5100 , United States v. Dumas

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The parties reached an agreement at sentencing: (1) the 4

- level enhancement for usi ng or possessing the firearm in connection with another felony offense did not apply, (2) Dumas was withdraw ing all his other objections, (3) the resulting guidelines range was 84 to 105 months, and (4) Dumas should receive a 100

- month sentence. Accepting the parties’ agreement , the district
court calculated the guidelines range as 84 to 105 months and imposed a 100

- month sentence

. On appeal, Dumas argues that the district court plainly erred in refusing to allow him to preserve for further review the iss ue of whether his sentence was properly enhanced based on a conviction for a c rime with only a reckless mens rea. The record does not support Dumas’s argument. The district court did not refuse to allow Dumas to preserve his objection to the classificati on of his reckless homicide conviction as a crime of violence. Dumas instead affirmatively withdrew his objection, thereby waiving appellate review. In summarizing the parties’ agreement, defense counsel stated that the parties had agreed not to apply t he 4

- level enhancement for using or possessing the firearm in connection with another felony and that Dum as was withdrawing all his other objections to the guidelines calculation. When the district court confirmed that there were no additional objections to the agreed

- upon range, defense counsel stated, “There are no additional objections. I do, and I said this to [the prosecutor], plan on preserving the issue of the reckless hom icide.” Defense counsel went on to state: “I want to leave that issue open, Your Honor, that is the only issue that will remain open for appellate purposes.” The district court attempted to clarify the defense’s position, stating that it

was “ my understanding that the defense was . . . withdrawing all the other objections, but

a ppa rently that is not the case.” Defense counsel backtracked, stating, “It is withdrawn

— I’ m
t r y ing to think if there is a way for me to agree that it wouldn’ t apply but still preserve it . . . .” After t he prosecutor said, “It was withdrawn,” defense cou nsel conceded , “That’s fine, YourNo. 18

- 5100 , United States v. Dumas

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Honor. It’s withdrawn.” The district court noted for the record Dumas’s withdrawal of the objection : “We will show withdrawn then

. ” By expressly withdrawing his objection to the classification of his reckless homicide conviction as a crime of violence , Dumas waived appellate review of th e issue. See United States v. Denkins , 367 F.3d 537, 544 (6th Cir. 2004) (“[W]e have held that this sort of abandonment of an issue . . . waives any right of appe al on that issue

. ”)

. The cases cited by Dumas are inapposite. In those cases, we reviewed withdrawn issues for plain error in light of intervening Supreme Court decisions. See United States v. Clements , 142 F. App’x 223, 228

- 29 (6th Cir. 2005); United S tates v. Stines , 313 F.3d 912 , 917

- 18 (6th Cir. 2002) (holding that when waiver predates relevant, intervening precedent, court may review waived issue because “[i]t would have been impossible for the defendant[] to have intentionally relinquished or aband oned” a right not recognized at the time of trial and sentencing)

. Dumas does not rely on any Supreme Court decisio n issued after his sentencing. Even if he had preserved his objection, Dumas cannot show any error. As Dumas acknowledges , this court has held that offenses requiring only recklessness can constitute crimes of violence under the guidelines. United States v. Verwiebe , 874 F.3d 258, 262

- 64 (6th Cir. 2017). Although another panel has expressed disagreement with the Verwiebe decision, see United States v. Harper , 875 F.3d 329, 330

- 33 (6th Cir. 2017), petition for cert. filed (U.S. Jan. 24, 2018) (No. 17

- 7613), “only the en banc process, a material intervening Supreme Court decision, or a relevant change to the Guidelines permits us to overr ide binding circuit precedent ,” Verwiebe , 874 F.3d at 262. For these reasons, we AFFIRM the dist rict court’s judgment.