                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4805


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DOMIKO DERRILL DAVIS,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00299-F-1)


Submitted:   March 29, 2011                 Decided:   April 8, 2011


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Domiko      Derrill    Davis        appeals    his   fifty-seven-month

sentence     imposed     after   he     pleaded      guilty,    without     a   plea

agreement, to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2006).                 We affirm.

           Davis       argues    that      the      district    court     committed

procedural sentencing error by failing to consider an amendment

to the Guidelines, pending at the time of Davis’s sentencing,

that would eliminate the recency enhancement of U.S. Sentencing

Guidelines Manual (“USSG”) § 4A1.1(e) (2009).                     Davis contends

that   despite     the    absence     of       an   objection    below,     “proper

consideration of the [G]uidelines by the district court would

have given deference to the [Sentencing] Commission’s considered

view that recency points did not serve the purpose of sentencing

under [18] U.S.C. § 3553(a) (2006).”                     The Government asserts

that Davis’s explicit waiver of this argument at the sentencing

hearing waived his right to appeal this issue.                  We agree.

           “Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the ‘intentional relinquishment

or abandonment of a known right.’”                    United States v. Olano,

507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.

458, 464 (1938)).        When a defendant fails to raise an argument

before the district court, it is forfeited and we review the

issue for plain error.           United States v. Massenburg, 564 F.3d

                                           2
337,   342   (4th Cir. 2009).      In    contrast,    waiver   extinguishes

potential error under Fed. R. Crim. P. 52(b).               Olano, 507 U.S.

at 733.      When a claim of error has been waived, “it is not

reviewable on appeal.”        United States v. Claridy, 601 F.3d 276,

284 n.2 (4th Cir. 2010) (quoting Olano, 507 U.S. at 732-33).

             We conclude that Davis did not merely fail to raise

before the district court the argument he now advances; Davis

raised the argument and waived it.         Counsel indicated that Davis

had asked him to waive two objections to the Presentence Report,

including application of USSG § 4A1.1(e).             Davis confirmed his

intention to waive these arguments.            Moreover, he maintained

this position throughout the hearing.          Therefore, the issue is

not reviewable by this court.

             Accordingly, we affirm the district court’s judgment.

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




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