UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4752

DAVIN LAMONT SMITH,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

James C. Fox, Senior District Judge.

(CR-02-17)

Submitted: May 22, 2003

Decided: June 13, 2003

Before NIEMEYER and SHEDD, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Jeanette Doran Brooks, Research

and Writing Attorney, Raleigh, North Carolina, for Appellant. Anne

Margaret Hayes, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Davin Lamont Smith pled guilty to distributing 3.5 grams of

cocaine base (Count 1), two counts of possessing a firearm by a convicted felon (Counts 2 and 4), and using and carrying a firearm in

relation to a drug trafficking crime (Count 3). The district court sentenced Smith to 96 months imprisonment for Counts 1, 2 and 4, and

60 months, to be served consecutively, for Count 3. The court also

fined Smith $8400 ($2100 per offense), and imposed a special assessment of $400 ($100 per offense). On appeal, counsel has filed a brief

under Anders v. California, 386 U.S. 738 (1967), alleging that there

are no meritorious claims on appeal but raising the following issue:

whether the sentencing court erred by ordering Smith to pay a fine

without considering the burden the fine would impose on his three

dependent children. For the reasons that follow, we affirm in part, and

vacate and remand in part. 

We vacate and remand for the district court to consider the burden

that the $8400 fine will have on Smith’s three dependent children as

required by 18 U.S.C. § 3572(a)(2) (2000). See United States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). A district court must make

factual findings with respect to applicable § 3572 factors, to ensure

that there is a basis for appellate review. United States v. Walker, 39

F.3d 489, 492 (4th Cir. 1994). We also direct the district court’s attention to the clerical error in its criminal judgment stating that Smith’s

total offense level was 26. A review of the entire record reveals that

Smith’s total offense level was 21; the error may be corrected under

Fed. R. Crim. P. 36. 

We have examined the entire record in this case, in accordance

with the requirements of Anders, and find no other meritorious issues

for appeal. Accordingly, we affirm in part, vacate in part, and remand.

This court requires that counsel inform his client, in writing, of his

2 UNITED STATES v. SMITH
right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client.

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 IN PART, VACATED

IN PART AND REMANDED

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