United States of America v. Dunnie G. Smith

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4618
DUNNIE G. SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CR-98-57-BO)
Submitted: March 9, 2000
Decided: March 16, 2000
Before WILKINS, TRAXLER, and KING, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert J. McAfee, MCCOTTER, MCAFEE & ASHTON, P.L.L.C.,
New Bern, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Dennis M. Duffy, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Dunnie G. Smith appeals the district court's judgment imposing a
six month sentence after a guilty plea for operating a vessel on the
high seas under the influence of alcohol and drugs in violation of 46
U.S.C.A. § 2302(c)(2) (West Supp. 1999). Finding no error, we
affirm.
Because there is no sentencing guideline expressly applicable to
this crime, the district court calculated Smith's sentencing range of
zero to six months using the most closely analogous offense guide-
line, U.S. Sentencing Guidelines Manual§ 2D2.1 (1998). See USSG
§ 2X5.1. Smith did not file an objection to the presentence report or
object to the calculation at sentencing. Our review, therefore, is lim-
ited to plain error. See Fed. R. Crim. P. 52(b); United States v. Olano,
507 U.S. 725, 732-35 (1993).
We have held that a sentence imposed within a correctly calculated
guideline range is not subject to appellate review. See United States
v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994). Because we find that
the district court sentenced Smith within a correctly calculated guide-
line range, Smith's claim is not reviewable. We therefore affirm
Smith's conviction and sentence. 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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