United States of America v. Lerico Clayvon Yates

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4332
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LERICO CLAYVON YATES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00451-CCE-1)
Submitted: August 22, 2016 Decided: September 2, 2016
Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Kyle D. Pousson, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A federal grand jury indicted Lerico Clayvon Yates on one
count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g), 924(a)(2) (2012). Yates
entered a conditional guilty plea, preserving the right to
assert on appeal that he did not have a prior felony conviction
to support his felon-in-possession conviction because his
previous North Carolina conviction for attempted common law
robbery was not punishable by a sentence exceeding one year.
In his opening brief on appeal, Yates argued that his North
Carolina attempted common law robbery conviction was not
punishable by a sentence of imprisonment exceeding one year
because the North Carolina Justice Reinvestment Act of 2011
required that 9 months of his 10- to 21-month sentence be served
on post-release supervision. As Yates now concedes, his
argument is foreclosed by our recent decision in United States
v. Barlow, 811 F.3d 133 (4th Cir. 2015), cert. denied, 136 S.
Ct. 2014 (2016), which issued while Yates’ appeal was pending.
Yates filed a supplemental brief challenging his sentence,
arguing for the first time that North Carolina attempted common
law robbery is not a “crime of violence” for purposes of U.S.
Sentencing Guidelines Manual § 2K2.1 (2014). By failing to
raise this issue in his initial brief, Yates has waived
appellate review of this claim. United States v. Bartko, 728

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F.3d 327, 335 (4th Cir. 2013); Suarez-Valenzuela v. Holder, 714
F.3d 241, 248-49 (4th Cir. 2013).
Accordingly, we 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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