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United States v. Carter

United States Court of Appeals, Tenth Circuit

October 28, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BRICE ASHTON CARTER, Defendant-Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:18-CR-00079-ABJ-1)

         Submitted on the briefs:[*]

          Ann Marie Taliaferro of Brown, Bradshaw & Moffat, LLP, Salt Lake City, Utah, and Michelle Quist, Salt Lake City, Utah, for Defendant - Appellant.

          Mark A. Klaassen, United States Attorney, District of Wyoming, Cheyenne, Wyoming, for Plaintiff - Appellee.

          Before MORITZ, McKAY, and CARSON, Circuit Judges.

          McKAY, CIRCUIT JUDGE.

         In this appeal, we consider the procedural and substantive reasonableness of a sentence imposed for a firearm offense following application of a guidelines cross-reference, pursuant to U.S.S.G. § 2K2.1(c), to an uncharged drug offense. Concluding that the procedural challenge is not subject to plain-error review and that the substantive challenge is without merit, we affirm the sentence.

         BACKGROUND

         In September 2017, law enforcement agents began investigating Defendant Brice Carter's involvement in trafficking drugs and passing counterfeit notes. As part of that investigation, agents conducted a proffer with a confidential informant who had recently been arrested in connection with drug trafficking. The CI informed the agents that he or she had supplied Defendant with drugs for some months and that during that time Defendant had provided the CI with two firearms as partial payment for a quantity of methamphetamine. After executing a search warrant, agents recovered two firearms from the CI's home and identified Defendant's fingerprints on a box in which one of the firearms-a .22 caliber pistol-was stored. Based in part on the CI's proffer, the government filed a criminal complaint against Defendant, and a grand jury returned an indictment against him for one count of possessing a firearm-the .22 caliber pistol-as a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and one count of manufacturing counterfeit notes, in violation of 18 U.S.C. § 471.[1] Defendant pled guilty to both counts pursuant to a plea agreement.

         At sentencing, the presentence investigation report noted the sentencing guideline for the firearm offense calls for application of a cross-reference if the defendant uses the firearm cited in the offense of conviction in connection with the commission of another offense so long as the offense level resulting from application of the cross-reference is greater than it otherwise would be. See U.S.S.G. § 2K2.1(c)(1)(A) (2016). Relying on the CI's proffer, the PSR attributed to Defendant, for purposes of the cross-reference, an uncharged drug-distribution offense involving 9 ounces (or 255 grams) of methamphetamine, which, according to the CI, Defendant had purchased in exchange for the pistol. The PSR applied a cross-reference to the drug-distribution guideline and calculated Defendant's total offense level, after all adjustments, at 25, which the PSR determined was a greater level than would result from a straightforward application of the firearm-offense guideline. See U.S.S.G. §§ 2D.1.1(a)(5), (b)(1), (c)(7), 2X1.1(a), 3E1.1(a)-(b) (2016). In combination with Defendant's criminal history category, the total offense level of 25 yielded an advisory guidelines range of 100 to 125 months' imprisonment.

         Defendant objected to the cross-reference on three grounds. First, Defendant argued the CI's proffer simply was insufficient to support a finding by a preponderance that he was responsible for distributing nine ounces of methamphetamine. Defendant explained that the proffer was uncorroborated and not given under oath in a judicial proceeding, leaving the CI's credibility in doubt. In this same vein, he later contended the CI's story was inconsistent, explaining the CI at one point stated Defendant had bought eight, not nine, ounces of methamphetamine, and thus was subject to further doubt-although the basis for this contention does not appear in the record. Next, Defendant argued that the parties' plea negotiations had not contemplated that the CI's proffer would be used at sentencing to support a cross-reference. Finally, Defendant argued that cross-references from the firearm-offense guideline are rarely used and are inappropriate especially where, as in his case, the factual basis for the cross-reference is contested.

         Instead of the cross-reference, Defendant argued for straightforward application of the firearm-offense guideline, § 2K2.1. He claimed that, after adjustments, this would elicit a total offense level of 21 which, when combined with his criminal history category, should result in a guidelines range of 70 to 87 months' imprisonment. However, in the event the district court decided to apply the cross-reference, Defendant requested a four-level downward variance to his total offense level in order to honor the parties' understanding of the plea agreement.

         At the initial sentencing hearing, Defendant reiterated his objection to the cross-reference. He argued that the district court should not credit the CI's proffer because it was unsworn, uncorroborated, and inconsistent and that, because the CI's credibility had not been established, the proffer was insufficient to support the cross-reference's application. In response, the government pointed out the CI's statement that Defendant purchased the methamphetamine in exchange for firearms was corroborated by the identification of Defendant's fingerprints on the storage box containing the pistol recovered from the CI's home. Rather than resolving the dispute, the court recessed the hearing in order to "get the witness in and proceed." (R., vol. III, at 77.)

         Two days later, the district court reconvened the hearing to address the CI's credibility. Before the hearing proceeded further, ...


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