593 F. App'x 346
5th Cir.2014Background
- Carlton, incarcerated in federal prison, was convicted by a jury of possessing contraband (marijuana) in violation of 18 U.S.C. § 1791(a)(2) after his companion Whitney Anderson smuggled packages in a child’s clothing and he ingested some packages.
- The PSR recommended two sentencing enhancements: U.S.S.G. § 2D1.1(b)(4) (object of offense was distribution in a prison) applied via U.S.S.G. § 2P1.2(c)(1), and U.S.S.G. § 3B1.4 (use of a minor).
- Carlton objected in the PSR to both enhancements but expressly withdrew his objection to the § 3B1.4 enhancement at sentencing.
- The district court applied both enhancements, relying in part on its (erroneous) recollection that Anderson testified she brought the drugs so Carlton could repay a debt to another inmate; the government conceded Anderson never so testified.
- Carlton was sentenced within the resulting guidelines range to 27 months and appealed, challenging both enhancements; the panel affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 3B1.4 (use of a minor) | Carlton argued the enhancement shouldn’t apply because he didn’t take affirmative action to involve the child; Anderson hid the drugs herself. | Government argued the enhancement was supported by facts in the PSR/trial context. | Court: Waived — Carlton expressly withdrew the objection at sentencing, so challenge is forfeited and not reviewable. |
| Applicability of § 2D1.1(b)(4) (object = distribution in prison) — textual scope | Carlton argued conviction for mere possession (§ 1791(a)(2)) precludes finding the object was distribution under the Guidelines. | Government argued §§ 2P1.2(c)(1) and 2D1.1(b)(4) permit applying the distribution-object enhancement regardless of the specific § 1791 subsection charged. | Court: Rejected Carlton’s cramped reading; the Guidelines provisions do not limit “the offense” to providing contraband under § 1791(a)(1). |
| Factual basis for § 2D1.1(b)(4) enhancement | Carlton argued the district court clearly erred because it relied on Anderson’s supposed trial testimony that Carlton intended to pay a prison debt — a statement she never made. | Government conceded the PSR and court mistakenly attributed that testimony to Anderson; contended Carlton invited or failed to correct the error at sentencing. | Court: Reviewed for plain error but applied Lopez rule (factual mistakes not cognizable on plain-error review if curable at sentencing); held Carlton failed to show clear error because the mistake was a fact that could have been corrected at sentencing. |
| Whether plain error remedy was warranted | Carlton argued the misstatement materially affected his guideline range (two-level increase) and thus met plain-error fourth prong. | Government argued the error was not cognizable or was invited/unobjected-to. | Court: Declined relief; under Fifth Circuit precedent the factual misstatement was forfeited opportunity to cure at sentencing and cannot constitute plain error. |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard and discretion to correct unpreserved error)
- Puckett v. United States, 556 U.S. 129 (2009) (rejecting a per se approach to plain-error review)
- United States v. Lopez, 923 F.2d 47 (5th Cir. 1991) (factual-finding mistakes not cognizable on plain-error review at sentencing)
- United States v. Claiborne, 676 F.3d 434 (5th Cir. 2012) (discussing Lopez and plain-error issues; Prado, J., concurrence addresses rule)
- United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010) (distinguishing waiver and forfeiture standards)
- United States v. Evans, 587 F.3d 667 (5th Cir. 2009) (standard of review for district court factual findings at sentencing)
- United States v. Mueller, 168 F.3d 186 (5th Cir. 1999) (de novo review for legal interpretation of Guidelines)
- United States v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. 2006) (plain-error review context for sentencing enhancements)
- United States v. John, 597 F.3d 263 (5th Cir. 2010) (plain-error significance of Guidelines range disparities)
- United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011) (two-level Guidelines discrepancy can warrant plain-error correction)