UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4175

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DYVAE DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Elizabeth City. Richard E. Myers, II, Chief District Judge. (2:22-cr-00010-M-RN-1)

Submitted: December 14, 2023 Decided: December 18, 2023

Before GREGORY and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Eric J. Foster, Asheville, North Carolina, for Appellant. Michael F. Easley, 

Jr., United States Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Dyvae Davis appeals his conviction following his guilty plea to possession with 

intent to distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession 

of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(i), (D)(ii). On appeal, Davis argues the district court plainly erred by 

accepting his guilty plea because the court did not ensure he understood each element of 

the § 924(c) offense and because his plea to that offense was not supported by an adequate 

factual basis. We affirm.

Because Davis did not move to withdraw his plea or otherwise object to the plea 

hearing in the district court, our review is for plain error. United States v. Sanya, 774 F.3d 

812, 815 (4th Cir. 2014). A guilty plea is valid if the defendant knowingly, voluntarily, 

and intelligently pleads guilty “with sufficient awareness of the relevant circumstances and 

likely consequences.” United States v. Fisher, 711 F.3d 460, 464 (4th Cir. 2013) (internal 

quotation marks omitted). “In evaluating the constitutional validity of a guilty plea, courts 

look to the totality of the circumstances surrounding it, granting the defendant’s solemn 

declaration of guilt a presumption of truthfulness.” United States v. Moussaoui, 591 F.3d 

263, 278 (4th Cir. 2010) (cleaned up). Before accepting a guilty plea, the district court 

must conduct a plea colloquy in which it informs the defendant of, and determines he 

understands, the rights he is relinquishing by pleading guilty, the charges to which he is 

pleading, and the maximum and any mandatory minimum penalties he faces. Fed. R. Crim. 

P. 11(b)(1). The district court also must ensure there is a factual basis for the plea. Fed. 

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R. Crim. P. 11(b)(3). Any variance from the requirements of Rule 11 “is harmless error if 

it does not affect substantial rights.” Fed. R. Crim. P. 11(h).

We discern no plain error in the district court’s acceptance of Davis’ plea. The

district court adequately ensured Davis understood the elements of the offenses to which 

he had agreed to plead guilty. See United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 

1991). And the Government’s factual proffer established a sufficient factual basis for the 

§ 924(c) offense. See United States v. Dennis, 19 F.4th 656, 667-68 (4th Cir. 2021) 

(discussing factors relevant to determining if firearm furthered drug trafficking crime). 

We therefore affirm the criminal judgment. 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

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