UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4889

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

WEINTRAL DANIEL CURETON,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior 

District Judge. (7:09-cr-00432-HMH-1)

Submitted: July 15, 2010 Decided: August 20, 2010

Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville, 

South Carolina, for Appellant. Kevin F. McDonald, Acting United 

States Attorney, A. Lance Crick, Assistant United States 

Attorney, Greenville, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Weintral Daniel Cureton pled guilty to being a felon 

in possession of a firearm in violation of 18 U.S.C. § 922(g)

(2006). A presentence report was issued that classified Cureton 

as an Armed Career Criminal, and set his advisory guideline 

range at 168-210 months’ imprisonment, which was well above the 

statutory maximum of 120 months’ imprisonment that Cureton 

actually faced. Cureton did not object to the presentence 

report. 

At Cureton’s sentencing hearing, Cureton’s counsel 

pointed out that the district court could sentence Cureton to 

“whatever sentence the court deems fit.” Counsel also asked the 

court to “take into consideration” the fact that Cureton did not 

run from police when they attempted to arrest him on an 

outstanding warrant. However, at no point did counsel ever 

explicitly ask that Cureton receive a particular sentence, be 

sentenced within a particular range, or even request that he 

receive a sentence below the 120 month statutory maximum he 

faced.

When asked if he had anything to add to his attorney’s 

statements, Cureton stated that he was “going through some hard 

times.” He stated that he felt bad because he was unable to 

provide for his sick mother and the rest of his family, and that 

at the time he was arrested, he was planning to sell the gun in 
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his possession so that he could “provide for [his] family.” 

While Cureton did ask the court for “mercy,” he, like his 

attorney, failed to ask for a particular sentence, or to be 

sentenced within a particular range, or even for a sentence that 

was less than the 120 month statutory maximum.

After hearing from Cureton and his attorney, the 

district court stated:

The [c]ourt has considered those factors under [18 

U.S.C. § 3553(a)]. The [c]ourt has also considered 

the guidelines as advisory only. The [c]ourt believes 

that a [120 month] sentence is appropriate and will 

accomplish the purposes of the statute and considering 

the factors of this case.

The district court then proceeded to sentence Cureton to 120 

months’ imprisonment. Cureton appealed. 

This court reviews preserved claims of procedural 

sentencing error for abuse of discretion, reversing any sentence 

based upon such an error, unless the error was harmless; 

however, unpreserved claims of procedural sentencing error are 

reviewed under the more rigorous plain error test. See United 

States v. Lynn, 592 F.3d 572, 575-79 (4th Cir. 2010). To 

preserve his claim that a district court committed a procedural 

sentencing error by inadequately explaining the reasoning for 

its sentence, a defendant must, at minimum, “draw[] arguments 

from § 3553 for a sentence different than the one ultimately 

imposed.” Lynn, 592 F.3d at 578. 
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In other words, while a defendant is not necessarily 

required to “complain about a judicial choice after it has been 

made,” he must, “inform[] the court . . . of the action [he] 

wishes the court to take.” Id. at 577-78 (citing United 

States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009); Fed. R. 

Crim. P. 51(b)) (emphasis removed). Applying this standard, we 

find that Cureton has failed to preserve his objection to the 

district court’s explanation of his sentence. Accordingly, 

plain error review is appropriate. 

To establish plain error, Cureton must show that an 

error (1) was made, (2) is plain (i.e., clear or obvious), and 

(3) affects his substantial rights. United States v. 

Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009). Even if 

Cureton makes this three-part showing, this court may exercise 

its discretion to correct the error only if it “seriously 

affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. at 343 (internal quotation marks omitted). 

Here, even assuming the district court’s explanation of 

Cureton’s sentence was inadequate, Cureton has failed to show 

that any error affected his substantial rights, or that 

affirming his sentence would “seriously affect[] the fairness, 

integrity or public reputation” of the justice system.
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Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the issues are adequately 

presented in the materials before the court and argument would 

not aid the decisional process.

AFFIRMED