                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-4577


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

IRA LEE THORPE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:15-cr-00407-WO-1)


Submitted:   February 9, 2017               Decided:   March 1, 2017


Before TRAXLER, KEENAN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Michael   A.   DeFranco,   Assistant  United  States   Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Ira    Lee    Thorpe     pled      guilty,      pursuant        to    a    written       plea

agreement, to one count of being a felon in possession of a

firearm,     in    violation        of    18    U.S.C.       §§     922(g)(1),       924(a)(2)

(2012).      The district court sentenced Thorpe to 24 months and 1

day of imprisonment, and he now appeals.                            Appellate counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), questioning            whether     Thorpe’s          sentence       is   procedurally

unreasonable        because        the    district          court     denied       Thorpe       “an

effective      right     of    allocution.”               Thorpe    has     filed    a    pro    se

supplemental brief contending that his conviction violates both

the Second Amendment as applied to him and due process.                                          We

affirm.

      Counsel        argues        that        Thorpe’s        “effective           right        to

allocution”        was   violated        when       the    district        court    questioned

Thorpe    during       allocution        and    then       penalized        Thorpe       for    his

answers when imposing sentence.                      Because Thorpe did not raise

this objection in the district court, we review for plain error.

See   United      States      v.   Muhammad,         478    F.3d     247,    249     (4th      Cir.

2007).      To establish plain error, Thorpe must demonstrate that

(1) the district court committed an error; (2) the error was

plain;      (3) the      error      affected         his     substantial         rights;        and

(4) the error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.”                               Puckett v. United

                                                2
States,    556    U.S.     129,   135    (2009)      (internal       quotation   marks

omitted).

      “Before imposing sentence, the court must . . . address the

defendant personally in order to permit the defendant to speak

or present any information to mitigate the sentence.”                          Fed. R.

Crim. P. 32(i)(4)(A)(ii).              A court may interrupt a defendant’s

allocution to ask questions so long as there is no indication

that the court is attempting to terminate the allocution and the

defendant   is     given      ample   opportunity      to     speak    to    mitigating

factors.    See United States v. Covington, 681 F.3d 908, 910 (7th

Cir. 2012); cf. United States v. Li, 115 F.3d 125, 133-34 (2d

Cir. 1997) (holding that defendant was denied opportunity for

“meaningful” allocution).              Furthermore, a court may increase a

defendant’s sentence based on comments made during allocution if

the comments are relevant to the 18 U.S.C. § 3553(a) (2012)

analysis.        See United States v. Smith, 424 F.3d 992, 1016-17

(9th Cir. 2005); United States v. Burgos-Andujar, 275 F.3d 23,

30-31 (1st Cir. 2001); Li, 115 F.3d at 134-35.

      Although     the     district     court      often    interrupted       Thorpe’s

allocution to question him and referenced Thorpe’s answers in

setting the downward variance sentence, we discern no error.

The   district      court      properly      noted     that    some     of    Thorpe’s

responses    could       be   viewed    as       minimizing    his    acceptance    of

responsibility and others were of questionable veracity.                            We

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conclude    that       the    district        court   permissibly        assessed    the

credibility       of     Thorpe’s          comments     during      allocution       and

appropriately considered those statements in fashioning Thorpe’s

sentence under § 3553(a).

       Thorpe also argues that his conviction violates the Second

Amendment as applied to him because his felony drug convictions

are over 20 years old and he does not have a history of violent

conduct.      Thorpe’s contention is likely waived by his guilty

plea.     See United States v. Fitzgerald, 820 F.3d 107, 110 (4th

Cir. 2016) (recognizing that “when a defendant pleads guilty, he

waives     all     nonjurisdictional              defects    in    the      proceedings

conducted prior to entry of the plea” (alterations and internal

quotation marks omitted)); United States v. Seay, 620 F.3d 919,

922 n.3 (8th Cir. 2010) (holding as-applied Second Amendment

challenge    to    §    922(g)       was   not    jurisdictional     claim);     United

States v. Fox, 573 F.3d 1050, 1052 n.1 (10th Cir. 2009) (same).

Even    assuming       Thorpe’s       claim      survives    his   guilty    plea,   we

conclude that the claim lacks merit.                  Although we have left open

the     possibility      of      a     successful      as-applied        challenge    to

§ 922(g)(1), United States v. Moore, 666 F.3d 313, 320 (4th Cir.

2012),    given    Thorpe’s          criminal     history,    he   cannot     meet   the

“law-abiding responsible citizen requirement.”                     United States v.

Pruess, 703 F.3d 242, 246 (4th Cir. 2012) (internal quotation

marks omitted).

                                              4
       Lastly, Thorpe avers that his conviction violates his “due

process reliance interests.”                  When Thorpe pled guilty in North

Carolina state court to the felony drug offenses that served as

the predicates for the instant conviction, state law prohibited

Thorpe from possessing firearms for five years after his release

from    state      custody.           Before          Thorpe    reached       the       five-year

threshold,       the       North    Carolina          General       Assembly     amended       the

restoration       of       rights    statute,          N.C.     Gen.    Stat.       §    14-415.1

(1995),    to    permanently          ban    convicted          felons       from   possessing

certain firearms.

       Like Thorpe’s Second Amendment claim, his due process claim

was likely waived when he pled guilty.                         See Fitzgerald, 820 F.3d

at 110.        Notwithstanding, we conclude that Thorpe’s argument

fails on the merits.               Because Thorpe’s right to possess firearms

was    never    restored,          his    state       court     convictions         are    proper

predicates      under       §     922(g)(1).           See     18    U.S.C.     §       921(a)(20)

(2012).         Furthermore,             Thorpe       cites     no     authority         for   the

proposition that a felon retains a due process interest in the

right    to     bear       arms     under    either       the       Second    or    Fourteenth

Amendment.       See Johnston v. State, 735 S.E.2d 859, 876 (N.C. Ct.

App. 2012) (“No federal or State case has held that a convicted

felon     enjoys       a    liberty        interest       to     bear     arms      under      the

Fourteenth       Amendment.”).              For       these     reasons,       Thorpe’s        due

process claim fails.

                                                  5
     In   accordance     with    Anders,     we    have   reviewed     the   entire

record in this case and have found no meritorious issues for

appeal.    We    therefore      affirm   the      district      court’s   judgment.

This court requires that counsel inform Thorpe, in writing, of

the right to petition the Supreme Court of the United States for

further review.       If Thorpe 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 Thorpe.

     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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