United States v. David Starkey

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 2, 2026
• Docket: 25-4001
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 25-4001

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID ALLEN STARKEY,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Thomas S. Kleeh, Chief District Judge. (2:24-cr-00006-TSK-MJA-1)

Submitted: February 26, 2026 Decided: March 2, 2026

Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Shawn A. Morgan, STEPTOE & JOHNSON PLLC, Bridgeport, West Virginia, for Appellant. Stephen Donald Warner, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.

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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), reserving

his right to appeal the district court’s denial of his motion to dismiss the indictment on

Second Amendment grounds. The district court sentenced Starkey to 165 months’

imprisonment and three years’ supervised release. On appeal, counsel has filed a brief

under Anders v. California, 386 U.S. 738 (1967), challenging the denial of the motion to

dismiss the indictment and raising a sentencing issue. * Although notified of his right to do

so, Starkey has not filed a pro se supplemental brief. We affirm.

Starkey first asserts that the district court erred by denying his motion to dismiss the

indictment. He argues that the indictment violated his Second Amendment rights.

Starkey’s claim is foreclosed by our decision in United States v. Hunt, 123 F.4th 697 (4th

Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025).

Turning to the sentencing issue, we “review[] all sentences—whether inside, just

outside, or significantly outside the [Sentencing] Guidelines range—under a deferential

abuse-of-discretion standard.” United States v. Claybrooks, 90 F.4th 248, 257 (4th Cir.

2024) (citation modified). We “must first ensure that the district court committed no

significant procedural error,” which includes, among other things, “improperly

* Anders counsel notes that Starkey’s waiver of appellate rights in the plea agreement bars review of his sentencing claim. But because 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).

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calculating[] the Guidelines range, . . . failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). If there is no significant

procedural error, then we consider the sentence’s substantive reasonableness under “the

totality of the circumstances.” Id.; see United States v. Provance, 944 F.3d 213, 218 (4th

Cir. 2019). We afford a presumption of reasonableness to any sentence within or below a

properly calculated Guidelines range. United States v. Henderson, 107 F.4th 287, 297 (4th

Cir.), cert. denied, 145 S. Ct. 578 (2024). A defendant can rebut this presumption only “by

showing that the sentence is unreasonable when measured against the . . . § 3553(a)

factors.” Id. (citation modified).

Our review of the record confirms the procedural reasonableness of Starkey’s

sentence. Although Starkey contests on appeal the district court’s application of the

cross-reference in U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(A) to the drug

Guidelines to establish a base offense level of 30, 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 uncontested Guidelines calculations

set forth in the presentence report, and we discern no error in the calculation of Starkey’s

advisory Guidelines range. The district court afforded the parties an opportunity to argue

for an appropriate sentence, and Starkey declined to allocute. The district court considered

the § 3553(a) factors and Starkey’s arguments and provided a reasoned explanation for the

sentence. Finally, because nothing in the record undermines the presumption of

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substantive reasonableness afforded the selected sentence, Starkey’s sentence is

substantively reasonable.

In accordance with Anders, we have reviewed the entire record in this case and have

found no potentially meritorious grounds for appeal. We therefore affirm the district

court’s judgment. This court requires that counsel inform Starkey, in writing, of the right

to petition the Supreme Court of the United States for further review. If Starkey 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 Starkey. 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