941 F.3d 954
10th Cir.2019Background
- CI proffered that Carter obtained ~9 ounces (255g) of methamphetamine in exchange for firearms; agents later found two firearms at the CI’s home and Carter’s fingerprints on the storage box for a .22 pistol.
- Carter was indicted for possession of a firearm by a felon (18 U.S.C. § 922(g)(1)) and counterfeiting; he pleaded guilty to both counts.
- The PSR applied U.S.S.G. § 2K2.1(c) (cross-reference to drug-trafficking guideline) based on the CI’s proffer, attributing 9 ounces of methamphetamine and calculating total offense level 25 (guidelines range 100–125 months).
- Carter objected at sentencing to the cross-reference as based on an unsworn, uncorroborated, inconsistent CI proffer and argued the plea negotiations did not contemplate that use; he alternatively requested a four-level downward variance.
- At a continued sentencing hearing defense counsel withdrew Carter’s factual objection after receiving information supporting the CI’s credibility; the court adopted the PSR, granted a two-level downward variance, and imposed an 84-month sentence (below the 100–125 range).
- Carter appealed, challenging (1) the procedural validity of the cross-reference (insufficient factual basis) and (2) substantive reasonableness of the 84-month sentence.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Carter) | Held |
|---|---|---|---|
| Whether Carter preserved his procedural objection to the § 2K2.1(c) cross-reference | Carter withdrew his objection at the continued hearing, so the objection was waived | The original objection to the CI proffer was preserved and the cross-reference was based on unreliable evidence | Waived: Carter affirmatively abandoned the objection; appellate review of the procedural challenge is foreclosed |
| Whether the CI proffer (unsworn) sufficed to attribute 9 ounces for the cross-reference | The proffer was corroborated by Carter’s fingerprints on the pistol’s storage box; PSR facts became undisputed when objection withdrawn | The proffer was unsworn, uncorroborated, inconsistent, and insufficient to meet the preponderance standard | Court adopted PSR findings as its own; factual attribution upheld because it was undisputed—no reversible error |
| Whether plain-error review applies if objection was forfeited (not waived) | Even if forfeited, plain-error review is inappropriate for district-court factual findings developed at sentencing | Seeks plain-error review of factual finding that 9 ounces were attributable to him | Plain-error review unsuitable for disputed factual findings here; Carter’s withdrawal deprived the record and precluded such review |
| Whether the 84‑month below-guidelines sentence was substantively unreasonable | Below-guidelines sentence with a two-level variance is presumptively reasonable; Carter failed to rebut the presumption | Sentence was excessive given plea expectations and Carter should have received an additional four-level variance | Sentence is substantively reasonable; court did not abuse discretion and Carter failed to overcome the presumption of reasonableness |
Key Cases Cited
- Olano v. United States, 507 U.S. 725 (1993) (distinguishes waiver and forfeiture and sets standard for plain-error review)
- Zubia-Torres v. United States, 550 F.3d 1202 (10th Cir. 2008) (waiver found when defendant affirms an objection is resolved)
- Carrasco-Salazar v. United States, 494 F.3d 1270 (10th Cir. 2007) (withdrawing a sentencing objection constitutes waiver)
- Teague v. United States, 443 F.3d 1310 (10th Cir. 2006) (forfeiture/waiver principles apply to sentencing objections)
- Robertson v. United States, 568 F.3d 1203 (10th Cir. 2009) (district court may accept uncontested PSR facts as findings)
- Saucedo v. United States, 950 F.2d 1508 (10th Cir. 1991) (limits plain-error review of district-court factual findings at sentencing)
- Griffith v. United States, 928 F.3d 855 (10th Cir. 2019) (framework for procedural and substantive reasonableness review)
- Damato v. United States, 672 F.3d 832 (10th Cir. 2012) (below-guidelines sentence is presumptively reasonable)