UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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