FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
WYOMING (D.C. No. 2:18-CR-00079-ABJ-1)
on the briefs:[*]
Marie Taliaferro of Brown, Bradshaw & Moffat, LLP, Salt
Lake City, Utah, and Michelle Quist, Salt Lake City, Utah,
for Defendant - Appellant.
A. Klaassen, United States Attorney, District of Wyoming,
Cheyenne, Wyoming, for Plaintiff - Appellee.
MORITZ, McKAY, and CARSON, Circuit Judges.
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.
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. Defendant pled guilty to both counts
pursuant to a plea agreement.
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.
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.
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.
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.)
days later, the district court reconvened the hearing to
address the CI's credibility. Before the hearing
proceeded further, ...