US v. David Starkey - Affirmation of Felon in Possession Conviction

UNPUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 25-4001 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID ALLEN STA RKEY, Defendant - Appella nt. Appeal from the Unite d States District Court for the Northern Di strict of West Virginia, at Elkins. Thomas S. Kle eh, Chief District J udge. (2:24- cr -00006- TSK -MJA-1) Submitted: February 2 6, 2026 Decided: March 2, 2026 Before NIEMEYER and QUATTLE BAUM, Circuit Judges, and FL OYD, Senior Circuit Judge. Affirmed by unpublish ed per curiam opini on. ON BRIEF: Shawn A. Morgan, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellant. Stephen Donald Warner, Assi stant United States Attorney, OFFICE OF THE UNI TED STATES AT TORNEY, Elkins, West Vir ginia, for Appellee. Unpublished opinions are not binding prec edent in this circuit.

2 PER CURIAM: David Allen Starkey entered a conditional guilty plea, pursuant to a plea agreement, to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), reser ving his right to appeal the district court’s denial of his motion to dismiss the indictmen t on Second Amendment g rounds. The dist rict court sentenced Sta r k ey to 165 months’ imprisonment and thre e years’ super vised release. On appeal, coun sel has filed a brief under Anders v. California, 386 U.S. 738 (1967), challengin g the denial of the motion to dismiss the indictment and raising a sen tencing issue. * Although notified of his right to d o so, Starkey has not file d a pro se suppleme ntal brief. We affirm. Starkey first asserts tha t the district court erred by denying his motion to dismiss the indictment. He argues that the indictment violated his Second Amendment rights. Starkey’s clai m is foreclosed by our decision in United States v. Hu nt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025). Turning to the sentenc ing issue, we “review[] all sentences — whether inside, just outside, or significantl y outside the [Sentencing] Guidelines r ange — under a deferent ial abuse-of- discretion standard.” United States v. Claybrooks, 90 F. 4th 248, 257 (4th Cir. 2024) (citation modified). We “must first e nsure that the district court com mitted no significant procedural error,” which incl udes, among other things, “impr operly * Anders c ounsel notes that St arkey ’ s waiver of app ellate rights in the plea agreement bars review of his sentencin g claim. But b ecause the Government has not invoked the waiver, we may conduct our Anders review. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).

3 calculating[] the Guidelines range, ... failing to consid er the [18 U.S. C.] § 3553(a) factors, selecting a sentence ba sed on clearly erroneous facts, or fa iling to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (200 7). If there is no significa nt procedural error, the n we consider the se ntence’s substantive rea sonableness under “the totality of the circum stances.” Id.; see Uni ted States v. Pr ovance, 944 F.3d 213, 218 (4th Cir. 2019). We afford a presumption of reaso nableness to any senten ce within or below a properly calculated Guidelines range. United States v. Hende rson, 107 F.4th 287, 29 7 (4th Cir.), ce rt. denied, 145 S. Ct. 578 (2024). A defendant can re but this p resumption only “b y showing that the sentence is unreasonable when measured again st the ... § 3 553(a) factors.” Id. (citation modified). Our review of the record confirms the pr ocedural reasonableness of Starkey’s sentence. Although Starkey contest s on appeal the district co urt’s applica tion of the cross- reference in U. S. Sente ncing Guidelin es Manual § 2 K2.1(c)(1)(A) to t he drug Guidelines to establish a base offense le vel of 3 0, we conclude that the district court did not err in applying the cross-reference. See USSG §§ 2K2.1 cmt. n.14(B) (ii), (C), 2D1.1(c)(5). The district court adopted the otherwise uncontes ted Guidelines calculations set forth in the presentence report, and we discern no error i n the calculation of Starkey ’s advisory Guidelines ra nge. The district court afforded the parties an opportunit y to argue for an appropriate sente nce, an d Starkey declined to allocute. The dist rict court considered the § 3553(a) factors an d Starkey ’s arguments and provided a reasone d explanation for the sentence. Finally, b ecause nothing in th e record undermines the presumptio n of

4 substantive reasonabl eness afforded the selected sentence, Starkey ’s sentence is substantively reasonabl e. In accordance with And ers, we have revie wed the entire record in this case and have found no potentially meritorious gro unds f or appeal. We t herefore affirm the district court’s judgment. This court requires that cou nsel inform Starkey, in writing, of the right to petition the Supreme Court of the United St ates for further re view. If Star key requests that a petition be filed, but counsel bel ieves that suc h a petition would be frivo lous, then counsel may move in this court for l eave to withdraw from repres entation. Counsel’ s motion must state that a copy thereof was served on Starkey. We dispense with oral argument because the f acts and legal co ntentions are adequately presented in the mater ials before this court and ar gument would not aid the decisional proces s. AFFIRMED