UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRANDON THOMAS FINNESY, Defendant - Appellant.
No. 18-3045
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
March 20, 2020
PUBLISH
FILED
United States Court of Appeals Tenth Circuit
March 20, 2020
Christopher M. Wolpert Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON THOMAS FINNESY,
Defendant - Appellant.
No. 18-3045
Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10010-EFM-1)
Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.
Carrie N. Capwell, Assistant United States Attorney (Stephan R. McAllister, United States Attorney, and Jason Hart, Assistant United States Attorney on the brief), Office of the United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.
Before HOLMES, McKAY, and KELLY, Circuit Judges.
Brandon Thomas Finnesy appeals from his conviction and sentence for escape from custody. As to his conviction, which was entered upon his guilty plea, Mr. Finnesy contends that he should be permitted to withdraw his guilty plea because the magistrate judge who conducted his plea colloquy lacked “jurisdiction” to accept his plea. As to his sentence, he maintains that the district court erred in applying the United States Sentencing Guidelines (the “Guidelines” or “U.S.S.G.“) in his case. For the reasons explicated infra, we disagree. Accordingly, exercising jurisdiction under
I
In 2015, Mr. Finnesy was charged and convicted of misprision of a felony, in violation
A few days after Mr. Finnesy‘s indictment, in early February 2017, Kansas law enforcement arrested Mr. Finnesy, along with two other suspects, following a car chase; law enforcement recovered methamphetamine and firearms in the vehicle and near the scene of the chase. In that connection, a Kansas state court convicted him of one count of possession of a controlled substance and one count of possession of a firearm by a convicted felon. He was sentenced to forty-eight months’ imprisonment in July 2017, and several weeks later was admitted to a state correctional facility to begin serving his sentence on these two state offenses.
In November 2017, while Mr. Finnesy was serving his state sentence, the federal government took steps in federal district court to pursue its prosecution of Mr. Finnesy for his escape-from-custody offense. But several weeks before his trial was slated to begin on that offense, Mr. Finnesy entered into a plea agreement with the government, whereby he agreed to plead guilty to escape from custody. The government, for its part, agreed to recommend the maximum applicable offense-level reduction for acceptance of responsibility, as well as “to join [Mr. Finnesy] in recommending his sentence be served concurrent to his [state] sentence“—but with several conditions. R., Vol. I, at 20 (Plea Agreement, dated Dec. 20, 2017). Specifically, the government‘s fulfillment of its obligations under the plea agreement was contingent on, inter alia, Mr. Finnesy “continuing to manifest an acceptance of responsibility” and not “engag[ing] in additional criminal conduct” in advance of sentencing. Id. at 20–21. If Mr. Finnesy failed to adhere to these conditions, the government reserved the right to petition the court for a hearing to determine if he had breached the plea agreement. Id. If the district court were to then conclude that he had in fact done so, the government would be released from its obligations under the plea agreement.
In connection with his guilty plea, Mr. Finnesy also signed a document entitled “Consent to Proceed with Guilty Plea Before a United States Magistrate Judge in a Felony Case.” Supp. R. at 1 (Consent to Proceed Form, filed Dec. 20, 2017). In so signing, Mr. Finnesy affirmatively represented that he had been informed of his right to “enter” a guilty plea before a U.S. district judge, and that he was waiving that right and consenting to “enter[]” a guilty plea before a U.S. magistrate judge. Id.
A magistrate judge presided at Mr. Finnesy‘s plea hearing. During the hearing, the magistrate judge confirmed that Mr. Finnesy had agreed to have a magistrate judge “conduct[]” the hearing, and accepted the signed Consent to Proceed form. R., Vol. III, at 64–65 (Tr. Plea Hr‘g, dated Dec. 20, 2017). At the end of the hearing, Mr. Finnesy pleaded guilty, and the magistrate judge “accept[ed]” the guilty plea. Id. at 83–84.
The day after Mr. Finnesy‘s submission of his motion, the United States Probation Office filed a Presentence Investigation Report (“PSR“) in connection with Mr. Finnesy‘s sentencing on the escape-from-custody offense. As relevant here, the PSR calculated a base offense level of thirteen under
Shortly thereafter, the government filed a Motion to Determine Breach of Plea Agreement (the “motion to determine“). In so moving, the government explained that it had been informed of Mr. Finnesy‘s recent involvement in a “prisoner altercation” in which he had “possess[ed] a ‘shank’ and us[ed] it to harm another inmate at the detention facility where [Mr. Finnesy] [was] housed.” R., Vol. I, at 30 (Mot. to Determine, filed Feb. 28, 2018). These actions, the government contended, constituted a breach of the plea agreement‘s condition that Mr. Finnesy not “engage[] in additional criminal conduct,” id. (quoting R., Vol. I, at 20–21), and that this breach, in turn, relieved the government of its obligation under the agreement “to join [Mr. Finnesy] in recommending concurrent sentencing with [the state sentence],” id. The government requested that the district court so find, and that it do so at Mr. Finnesy‘s upcoming sentencing hearing.
To that end, the district court took up the government‘s motion to determine several weeks later at Mr. Finnesy‘s sentencing hearing. There, the government adduced evidence of the alleged prisoner altercation in which Mr. Finnesy had purportedly used a shank to attack another inmate, including testimony on the incident, a still shot from a video of the altercation, and the shank itself. The government argued that based on this evidence, it was clear that Mr. Finnesy had committed battery, in violation of the
I am going to grant the [g]overnment‘s motion that Mr. Finnesy has breached his plea agreement; therefore, [he] is not entitled to the acceptance of responsibility reduction of two points in this case, and that‘s going to adjust his offense level to a level 13, criminal history category VI.
Id. at 40. Thus, having determined that Mr. Finnesy breached the plea agreement, the district court then granted the government‘s request that it be released from its plea-agreement obligation to join Mr. Finnesy in recommending that the instant sentence run concurrently with the state sentence. The district court concluded its ruling by asking the parties, “[are there] [a]ny other issues with respect to the presentence investigation report?” Mr. Finnesy‘s counsel responded, “No, Your Honor.” Id. at 41.
The court then shifted its attention to other sentencing issues, including, as relevant here, whether to order that Mr. Finnesy‘s sentence on the instant escape-from-custody offense run consecutively to or concurrently with his undischarged sentence on his state offenses. The government recommended a consecutive sentence, emphasizing Mr. Finnesy‘s lengthy criminal history.
Mr. Finnesy‘s counsel countered that committing an offense while in escape status deprived Mr. Finnesy of the benefit of
The district court then took up Mr. Finnesy‘s request for a concurrent sentence. First, the court acknowledged that the government had previously joined Mr. Finnesy in recommending a concurrent sentence (prior to the government‘s learning of Mr. Finnesy‘s alleged altercation with another prisoner, and then, as a result, asking that it be released from its obligation to join Mr. Finnesy in that recommendation). Id. at 55. However, the court noted that even if the government had continued to recommend concurrent sentences, it was “not sure [it would] have granted that request in any event” because Mr. Finnesy‘s previous convictions on the state offenses did not “really relate[] to the offense that he‘s being sentenced for here.” Id. Accordingly, the district court concluded, it was “going to order that his sentence in this case is to be consecutive to the sentence he‘s to serve [for his previous state offenses].” Id.
The district court solicited objections to the tentative sentence. Mr. Finnesy‘s counsel asserted that “the sentence at the statutory maximum and consecutive to what he‘s already serving is substantively unreasonable, and I would object.” Id. at 56. Mr. Finnesy‘s counsel then continued, “I would also submit that procedurally . . . the sentence is also unreasonable.” Id. The district court inquired as to “the nature of [counsel‘s] procedural objections,” to which he responded, “[t]he ability of the -- just some of the objections that I had with respect to the testimony that was brought out in the hearing today.” Id. The district court stated that it saw no “procedural irregularity” in the conduct of the hearing, noting particularly that Mr. Finnesy‘s counsel received a “full opportunity” to cross-examine witnesses and make objections during the hearing. Id. Mr. Finnesy‘s counsel advised that he would seek to raise on appeal his procedural objections “with respect to those issues . . . that went against [him].” Id. The district court overruled the objections, stating that “the fact that [Mr. Finnesy‘s counsel] lost an objection” was not a “procedural irregularity.” Id.
The district court then imposed a sixty-month consecutive sentence, in accordance with its tentative sentence. In doing so, it noted that the PSR had been “adjusted pursuant to the [g]overnment‘s motion which [the district court] sustained to revoke acceptance of responsibility.” Id. at 57.
Consistent with its statements at the hearing, the district court entered judgment, and Mr. Finnesy timely appealed.
II
On appeal, Mr. Finnesy raises three claims of error. The first of these three claims concerns his conviction, and the second and third claims concern his sentence. As to Mr. Finnesy‘s conviction, he argues that magistrate judges do not have the authority to accept guilty pleas and adjudicate a defendant guilty, and that the magistrate judge here thus lacked jurisdiction to enter his guilty plea. As to Mr. Finnesy‘s sentence, first, he argues that
We reject Mr. Finnesy‘s claims in full, and we therefore affirm the district court‘s judgment as to Mr. Finnesy‘s conviction and sentence.
A
We first address Mr. Finnesy‘s contention that he is entitled to withdraw his guilty plea because a magistrate judge lacks “jurisdiction” or “authority” to “accept a guilty plea” and “adjudicate[] him guilty.” Aplt.‘s Opening Br. at 10, 15. We reject this argument.
1
Before we turn to the merits of this issue, however, we consider the appropriate standard of review. Mr. Finnesy candidly acknowledges that he did not raise his challenge to the magistrate judge‘s authority before the district court and that “[t]ypically, when a party fails to raise an issue below, the party has forfeited the issue, and this Court reviews for plain error.” Aplt.‘s Opening Br. at 10; see, e.g., United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2019), petition for cert. docketed, No. 19-7991 (10th Cir. Mar. 16, 2020) (noting that “[a]s a general matter, arguments not raised before the district court are forfeited on appeal“); see also United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (applying “rigorous” plain-error standard of review to forfeited error (quoting United States v. Bader, 678 F.3d 858, 894 n.24 (10th Cir. 2012))). Nevertheless, Mr. Finnesy maintains that plain-error review does not apply here, because jurisdictional issues cannot be waived or forfeited. Aplt.‘s Opening Br. at 10–12. Therefore, he asks us to review his challenge de novo. See, e.g., United States v. Brown, 164 F.3d 518, 521 (10th Cir. 1998) (holding that “[w]e review [defendant‘s] challenge to the district court‘s jurisdiction de novo“); accord United States v. Tolliver, 730 F.3d 1216, 1224 (10th Cir. 2013); United States v. Kammersell, 196 F.3d 1137, 1138 (10th Cir. 1999).
In support of his argument, Mr. Finnesy relies on two Supreme Court decisions that, he points out, “expressly refer[] to a magistrate judge‘s authority in jurisdictional terms.” Aplt.‘s Br. at 11. The first of these two cases, Gomez v. United States, 490 U.S. 858 (1989), took up the question of whether a magistrate judge in a defendant‘s felony case has the authority to preside over jury selection absent the defendant‘s consent. Id. In determining that a magistrate judge does not have such authority, the Gomez Court assessed the proper scope of a magistrate judge‘s duties in terms of “jurisdiction,” asserting that a magistrate judge “exceeds his jurisdiction by selecting a jury” without the defendant‘s consent. Id. at 865–72, 876 (emphasis added).
The second case, Peretz v. United States, 501 U.S. 923 (1991), considered whether a magistrate judge had the authority to select a jury in a felony case where, in a departure from Gomez, the defendant had provided consent. Id. Again, in addressing this question—this time answering in the affirmative—the Supreme Court spoke in terms of “jurisdiction,” explaining that “[w]hen a defendant does consent to the
We reject Mr. Finnesy‘s argument. In a long line of cases issued after Gomez and Peretz (cases that Mr. Finnesy largely elides), this court has expounded on the meaning of “jurisdiction” as it pertains to a magistrate judge‘s authority. And what those cases have made plain is this: the term “jurisdiction,” when employed by courts in reference to a magistrate judge‘s authority, is not used in the strict sense of subject-matter jurisdiction.
We crystallized this proposition the year after Peretz was decided, in Clark v. Poulton. There, in addressing the implications of a defendant‘s failure to object to a district-court referral to a magistrate judge, we examined “the jurisdiction and authority of a federal magistrate judge under section 636 [of the Federal Magistrates Act].” 963 F.2d 1361, 1363 (10th Cir. 1992). In particular, we looked to the Gomez Court‘s use of the term “jurisdiction,” emphasizing that in that context, “the Court was not using the term ‘jurisdiction’ in the sense of non-waivable subject matter jurisdiction,” but rather in the sense of “authority.” Id. at 1366–67 (citing Peretz, 501 U.S. at 953 (Scalia, J., dissenting)). We also looked to Peretz and determined that, despite its use of the term “jurisdiction,” its holding—i.e., that a magistrate judge has the authority to conduct jury selection with the parties’ consent—supported the notion that the magistrate judge‘s authority in that context did not implicate subject-matter jurisdiction, because “litigants cannot confer jurisdiction by consent where none exists.” Id. at 1367 (quoting United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991)). Accordingly, we concluded in Clark that “a magistrate judge‘s lack of statutory authority is not a jurisdictional defect, so any objection is waived if not raised.”3 Id. In other words, any such objection is not preserved for appellate review.
Clark, moreover, was hardly a one-off. Since issuing that decision, we have repeatedly cited it and its progeny—in controlling precedent, as well as non-precedential decisions—for the proposition that a magistrate judge‘s authority is not jurisdictional. See, e.g., In re Griego, 64 F.3d 580, 583 (10th Cir. 1995) (“A magistrate judge‘s lack of statutory authority is not a jurisdictional defect; thus, objection to such authority is waived if not timely raised.“). Indeed, we analyzed issues strikingly similar to those presented here in United States v. Ciapponi (a case discussed at length below), which applied plain-error review where a defendant had failed to object to a magistrate judge “taking” his guilty plea.4 77 F.3d 1247, 1249–50 (10th Cir. 1996). Thus, our precedent forecloses Mr. Finnesy‘s argument.5
In sum, Mr. Finnesy failed to properly raise his challenge to the magistrate judge‘s authority in district court—a challenge that we conclude is non-jurisdictional and, consequently, is subject to our usual forfeiture rules. Accordingly, we review for plain error.
2
A party seeking relief under the plain-error rubric bears the burden of showing “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights.” United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011)); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc) (noting that a party seeking relief under plain-error review bears the burden of satisfying the elements of that standard of review). “As to the plain-error rubric‘s second inquiry, we have held that an error is clear or obvious if ‘it is contrary to well-settled law.‘” United States v. Garcia, 946 F.3d 1191, 1202 (10th Cir. 2020) (quoting United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000)). “In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). “[A]s to the third inquiry, ordinarily when we say that ‘the error affects substantial rights . . . [that] ‘usually means that the error must have affected the outcome of the district court proceedings.‘” Garcia, 946 F.3d at 1202 (alterations and omission in original) (quoting Gonzalez-Huerta, 403 F.3d at 732–33).
“If these factors are met, [this court] may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir. 2011); United States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009) (“Under the plain error standard, ‘even if a defendant demonstrates an error that is plain, we may only take corrective action if that error not only prejudices the defendant‘s substantial rights, but also seriously affects the fairness, integrity, or public reputation of judicial proceedings.‘” (quoting United States v. Rivas-Macias, 537 F.3d 1271, 1281 (10th Cir. 2008))).
3
We now turn to the merits of Mr. Finnesy‘s first claim on appeal, challenging his conviction. He argues that the powers granted to magistrate judges by federal statute and rule do not include the authority to accept guilty pleas and adjudicate a defendant guilty, and that the magistrate
The bedrock authority delineating a magistrate judge‘s authority is the Federal Magistrates Act, and in particular,
Expounding on
holding was narrow and was compelled by the constitutional issue it potentially engendered as to “whether a defendant has a constitutional right to demand that an Article III judge preside at every critical stage of a felony trial“; the principle of constitutional avoidance, Peretz explained, thus led the Gomez Court to demand clear evidence of Congress‘s intent to include among magistrate judge‘s “additional duties” one that “raised a substantial constitutional question” (viz., supervision of jury selection in felony trials). Id. at 928–30.
Finally, there is Ciapponi, which considered Peretz in some depth. Ciapponi is fatal to Mr. Finnesy‘s argument. In Ciapponi, a district judge designated a magistrate judge to “accept” the defendant‘s guilty plea. 77 F.3d at 1249. At the defendant‘s plea hearing, the magistrate judge informed the defendant of his right to “appear before a district judge to enter his plea,” the defendant then executed a Consent to Proceed form “waiving his right to enter his plea before a district judge and consenting to proceed before the magistrate judge,” and ultimately, the magistrate judge conducted the proceedings “and accepted the defendant‘s plea of guilty.” Id. Addressing defendant‘s challenge
Ciapponi concluded, “neither the
The principles expressed in Ciapponi remain good law in this circuit. Time and again, this court has continued to hold that a magistrate judge has the authority to accept a defendant‘s guilty plea, provided that the defendant has given consent to that procedure. See, e.g., Garcia, 936 F.3d at 1138 (“Based on our precedent, it is clear that in the Tenth Circuit, federal magistrate judges have the authority to accept felony guilty pleas . . . .“); United States v. Salas-Garcia, 698 F.3d 1242, 1253 (10th Cir. 2012) (“Magistrate judges have the authority to conduct plea hearings and accept guilty pleas.“); United States v. Montano, 472 F.3d 1202, 1204 (10th Cir. 2007) (“A magistrate judge has jurisdiction to conduct a plea hearing and subsequently accept a defendant‘s plea where the defendant consents.“). In short, Ciapponi instructs that a magistrate judge may accept a felony guilty plea if the defendant consents, and roundly forecloses Mr. Finnesy‘s argument to the contrary.6 In the
cannot satisfy even the first prong of the plain-error framework: he cannot establish error.
Yet straining to blunt Ciapponi‘s controlling force, Mr. Finnesy contends that certain post-Ciapponi developments have cast Ciapponi into doubt. Aplt.‘s Opening Br. at 18. Specifically, he focuses on the 2005 enactment of
Our recent decision in United States v. Garcia—which squarely addressed the effect
In sum, Mr. Finnesy has failed to establish that the district court erred in permitting the magistrate judge to accept his felony guilty plea. Accordingly, absent a showing of error, much less plain error, we reject Mr. Finnesy‘s first challenge and, consequently, uphold his conviction. We turn to Mr. Finnesy‘s two claims of error as to his sentence.
B
Turning to Mr. Finnesy‘s second claim of error (and the first of his two challenges to his sentence), he contends that the district court improperly failed to apply
Typically, “we review legal questions regarding the application of the Sentencing Guidelines de novo,” and “a district court‘s factual findings are reviewed only for clear error, giving due deference to the district court‘s application of the Guidelines to the facts.” United States v. Iley, 914 F.3d 1274, 1278–79 (10th Cir. 2019) (quoting United States v. Pentrack, 428 F.3d 986, 989 (10th Cir. 2005)). Nonetheless, “[a]s a general rule, when a defendant fails to preserve an objection to the procedural reasonableness of his sentence, we review only for plain error.” United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008).
As we discuss below, we conclude that Mr. Finnesy has forfeited his
We are confronted with a threshold question of whether Mr. Finnesy‘s claim of error was forfeited in district court, thereby triggering plain-error review. Although he did not specifically invoke
We agree with the government. Not only did Mr. Finnesy fail to specify in the first instance that he objected to the district court‘s ruling on
The facts bear out Mr. Finnesy‘s failure to adequately alert the district court to the alleged sentencing error under
In arguing to the contrary, Mr. Finnesy‘s reliance on United States v. Tisdale is unavailing. There, while presiding over the defendant‘s sentencing hearing, the district court described a tentative sentence and then “asked whether there were any objections to the proposed sentence.” 248 F.3d 964, 976 (10th Cir. 2001). Mr. Tisdale‘s counsel responded, “[t]he only request, Your Honor, would be that the [c]ourt consider the lower end of the [G]uidelines. And also, he is serving a State sentence, but that the [c]ourt make the sentence here concurrent with the State sentence.” Id. The district court heard “brief arguments” (not further described in Tisdale) on “this issue” and then ordered a consecutive sentence. Id. On appeal, we opined that Mr. Tisdale‘s objection was not “the model of specificity” and that it would have been “preferable” for
Mr. Finnesy argues that his case is squarely governed by Tisdale: he reasons that, although he did not invoke
In short, Mr. Finnesy‘s procedural objection here did not adequately alert the district court that its proposed decision to run his federal sentence consecutively to his state sentence might contravene
preserve for appeal a different claim of procedural sentencing error, e.g., relying on different
2
We now turn to the merits of Mr. Finnesy‘s second claim of error. Recall that in order to satisfy the rigorous plain-error standard, a party ordinarily must show “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights.” McGehee, 672 F.3d at 876 (quoting Cooper, 654 F.3d at 1117). If that party makes this showing, we may exercise our discretion to correct the error if (4) “it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Cooper, 654 F.3d at 1117).
Mr. Finnesy contends that, in ordering his federal escape-from-custody sentence to run consecutively to his undischarged state sentence, the district court plainly erred because it should have applied
(a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the
sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed as follows:
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment. . . .
. . .
(d) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
2. Application of Subsection (b). –
(A) In General. – Subsection (b) applies in cases in which all of the prior offense is relevant conduct to the instant offense under the provisions of subsection (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct). Cases in which only part of the prior offense is relevant conduct to the instant offense are covered under subsection (d).
(B) Inapplicability of Subsection (b). – Subsection (b) does not apply in cases in which the prior offense was not relevant conduct to the instant offense under § 1B1.3(a)(1), (a)(2), or (a)(3) . . . .
Mr. Finnesy contends that the district court committed plain procedural error because it failed to apply
By Mr. Finnesy‘s logic, because the offenses underlying his state sentence—possession of a controlled substance and possession of a firearm by a convicted felon—were committed while he was in escape status, the state offenses are relevant conduct to his federal escape-from-custody offense upon which the district court sentenced him, and thus the court should have applied
The government contests Mr. Finnesy‘s assertion of plain error. Among other things, it disputes Mr. Finnesy‘s contention that the prior offenses underlying his undischarged state sentence were relevant conduct at all, and, even if they were, that they were the kind of relevant conduct that
The government observes, moreover, that “the district court did not appear to treat the state conviction as ‘relevant conduct,‘” Aplee.‘s Resp. Br. at 13, in that it expressly commented that the state offenses underlying that conviction “are not really related to the offense that he‘s being sentenced for here,” R., Vol. III, at 55. Finally, the government argues that “[e]ven if the state conviction had been considered as ‘relevant conduct,’ it is not clear that, in this case, the possession of methamphetamine and criminal possession of a firearm conviction should fall within (a)(1) rather than (a)(4) of”
We conclude that Mr. Finnesy has not established that the district court clearly or obviously erred under the circumstances of this case in not applying
We turn first to examining the merits of his contention in the context of the record. It is undisputed that (if subdivision (a) does not apply) a district court is only obliged to apply
We conclude that on the record before the district court, it hardly would have been clear or obvious that the state offenses underlying Mr. Finnesy‘s undischarged state sentence were relevant conduct, or that, even if they were, they were relevant conduct within the meaning of subsection (a)(1), (a)(2), or (a)(3) of
The PSR left virtually no room for doubt that it did not consider Mr. Finnesy‘s state offenses to be relevant conduct. And, importantly,
To be sure, Mr. Finnesy contends that the PSR would not have assigned Mr. Finnesy a base offense level of thirteen under
Thus, based on the PSR—as to which Mr. Finnesy lodged no objection—it would not have been clear or obvious to the district court that Mr. Finnesy‘s state offenses underlying his undischarged state conviction were relevant conduct, let alone relevant conduct under subsection (a)(1), (a)(2), or (a)(3) so as to trigger the application of
In sum, the record does not support Mr. Finnesy‘s contention that the district court plainly erred in not applying
Mr. Finnesy suggests that—notwithstanding the record‘s virtual silence concerning the matter—the circumstances of his state-law offenses should have made it clear or obvious to the district court, as a matter of law, that those offenses were relevant conduct of the kind that
However, it is telling—and especially problematic for Mr. Finnesy on plain-error review—that, in his reply brief, Mr. Finnesy does not challenge the government‘s assertion that “none of those cases [that Mr. Finnesy relies on] addressed whether a new crime committed during the escape necessarily qualified as relevant conduct” under the
Therefore, Mr. Finnesy has not satisfied his burden under the second prong of plain-error review because in addition to
In any event, our independent examination of the controlling caselaw revealed no decisions directly addressing the relevant-conduct question before us, making it all the more pellucid that the district court‘s purported error was anything but “clear or obvious” under the plain-error framework. See Garcia, 946 F.3d at 1210 (where defendant “ha[d] cited no controlling precedent from the Supreme Court or the Tenth Circuit that establishe[d] [his asserted challenge on appeal],” and “we are not aware of any[,] . . .[t]his effectively sounds the death knell for his . . . challenge on plain-error review“).
We recognize that Mr. Finnesy‘s argument under this second prong of plain-error review also relies in part on “the plain text of
In sum, we conclude that Mr. Finnesy has not demonstrated under the circumstances of this case that the district court clearly or obviously erred in not applying
C
Mr. Finnesy‘s third and final claim of error is that the district court improperly denied an acceptance-of-responsibility downward adjustment under
As we discuss below, we conclude that Mr. Finnesy forfeited his third claim of error and is therefore entitled to only review for plain error. See, e.g., McGehee, 672 F.3d at 876.13 And, as with his first two claims, Mr. Finnesy has not made a sufficient showing to satisfy this rigorous standard of review as to his third claim.
The parties dispute whether Mr. Finnesy preserved before the district court the acceptance-of-responsibility argument that he presents on appeal. We conclude that he did not.
In arguing to the contrary, Mr. Finnesy points to his objection to the district court‘s decision to grant the government‘s motion to determine. The government alleged in that motion that the plea agreement was conditioned on Mr. Finnesy continuing to evince an acceptance of responsibility and that he had violated this condition by engaging in post-plea-agreement criminal conduct while in prison, including “possessing a ‘shank’ and using it to harm another inmate.” R., Vol. 1, at 30. Because of the alleged breach, the government sought in its motion to be relieved of its own plea-agreement obligations. Mr. Finnesy supports his claim that his objection to the motion to determine preserves his current acceptance-of-responsibility argument by noting that the district court denied him an acceptance-of-responsibility adjustment, “[c]iting nothing other than the grant of this motion [i.e., the government‘s motion for a determine].” Aplt.‘s Opening Br. at 24.
We are not persuaded, however, by Mr. Finnesy‘s preservation argument. In order for Mr. Finnesy to succeed on this argument, we must accept the tacit premise that his objection to the district court‘s decision to grant the government‘s motion to determine was effectively also an objection to the basis for the district court‘s separate decision to deny Mr. Finnesy an acceptance-of-responsibility adjustment under
Even though the general subject matter of the government‘s motion to determine was Mr. Finnesy‘s alleged failure to continue manifesting an acceptance of responsibility for his charged offense by continuing his criminal conduct in prison, as the government rightly points out, the motion to determine did not ask the district court to “retract” Mr. Finnesy‘s acceptance-of-responsibility adjustment. Aplee.‘s Resp. Br. at 17. In other words, the government did not seek such a retraction or disallowance of the acceptance-of-responsibility adjustment as part of its requested relief in its motion to determine. Indeed, there is not so much as even a single citation to
And Lozano does not give us cause to alter our view. In Lozano, “the government concede[ed] that . . . Ms. Lozano preserved her § 3E1.1 argument at the sentencing hearing,” and, without analysis, we simply signaled our agreement. See Lozano, 514 F.3d at 1134. Moreover, Ms. Lozano actually objected vigorously to the denial of an acceptance-of-responsibility downward adjustment, although admittedly her objection did not embrace with specificity the error both sides agreed that the district court had made—that is, granting under
By contrast here, the government does not agree that Mr. Finnesy preserved his acceptance-of-responsibility argument. And, in light of the government‘s concession in Lozano, it was not “essential” for us to resolve a preservation dispute there, as it is here; accordingly, we would best advised to view our agreement with the government in Lozano as no more than dictum. In re Tuttle, 291 F.3d 1238, 1242 (10th Cir. 2002) (“[D]icta are ‘statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case at hand.‘” (quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995))); accord United States v. Titties, 852 F.3d 1257, 1273 (10th Cir. 2017); see also JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 173 (2d Cir. 2004) (observing that the litigant was “correct” in interpreting a comment from the Supreme Court as “dictum” because the subject matter of the comment was not contested before the Court). As such, we are not obliged to follow Lozano on this preservation issue. Bates v. Dep‘t of Corr., 81 F.3d 1008, 1011 (10th Cir. 1996) (“[A] panel of this Court is bound by a holding of a prior panel of this Court but is not bound by a prior panel‘s dicta.“); accord Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir. 2014).
Moreover, even if the Lozano court‘s agreement with the government on the preservation question could be construed as a binding holding (which it cannot), Lozano is distinguishable because there the defendant‘s objection at least related in general terms to the court‘s action challenged on appeal—its failure to grant an
In order to preserve his acceptance-of-responsibility challenge for appeal, Mr. Finnesy was obliged to bring it to the district court‘s attention. We conclude that he did not. Accordingly, Mr. Finnesy is entitled to no more than plain-error review.
2
We now turn to the merits of Mr. Finnesy‘s third and final claim of error—that is, that the district court erroneously denied an acceptance-of-responsibility reduction under
Guidelines
Mr. Finnesy contends, however, that “nothing within
We conclude that, even assuming Mr. Finnesy‘s interpretation of
Indeed, we think the natural reading of the record is to the contrary: that the district court denied Mr. Finnesy‘s a downward adjustment for acceptance of responsibility because it independently found—after an evidentiary hearing on the government‘s motion to determine—that Mr. Finnesy failed to voluntarily terminate or withdraw from criminal conduct. Such a finding would properly support the court‘s denial of the adjustment. Indeed, in Prince, on similar facts we concluded that “the district court‘s denial of an adjustment for acceptance of responsibility based on reports of defendant‘s criminal conduct in prison while awaiting sentencing was not legal error.” 204 F.3d at 1024; see id. at 1022–23 (noting that the government received reports that “[w]hile defendant was in custody awaiting sentencing, . . . defendant stabbed another prisoner“).
In this regard, the district court expressly found that Mr. Finnesy “initiated the physical conduct” with another inmate that constituted “a battery”—striking “the first blow” on the inmate with a “shank . . . that caused the puncture wounds in the victim.” R., Vol. III, at 39–40. It also determined that the Barton County captain‘s testimony regarding Mr. Finnesy‘s purported involvement in trafficking contraband constituted “evidence of contraband being there.” Id. at 40. And later in
To be sure, some of the district court‘s comments (which Mr. Finnesy highlights) could be read as suggesting a connection—even a causal one—between the court‘s decision to accept the government‘s position in its motion to determine that Mr. Finnesy failed to accept responsibility by engaging in post-plea-agreement criminal conduct while in prison, and the court‘s decision to deny Mr. Finnesy a downward adjustment for acceptance of responsibility. See, e.g., id. at 40 (“So on the basis of this evidence that I‘ve heard in this court, I am going to grant the [g]overnment‘s motion that Mr. Finnesy has breached his plea agreement; therefore, [he] is not entitled to the acceptance of responsibility reduction of two points in this case.” (emphasis added)); id. at 57 (“The court determines that the [PSR], as previously corrected or modified by the [c]ourt or, I should say, adjusted pursuant to the Government‘s motion which I sustained to revoke acceptance of responsibility and the previously stated findings, are [sic] accurate.” (emphasis added)).
However, this should not be surprising, and it does not necessarily mean that the court‘s acceptance of the government‘s position was a factor—let alone the sole one—in the court‘s determination to deny Mr. Finnesy the acceptance-of-responsibility downward adjustment. That is because the same evidence that allowed the district court to accept the government‘s position (advanced first in its motion to determine) that Mr. Finnesy had failed to accept responsibility—within the meaning of the plea agreement—also would have permitted the district court to independently find that Mr. Finnesy did not qualify for an acceptance-of-responsibility downward adjustment because he had failed to “voluntar[ily] terminat[e] or withdraw[] from criminal conduct”—within the meaning of the Guidelines.
That the district court relied on the same evidence in reaching the two distinct decisions—to accept the government‘s position in its motion to determine concerning Mr. Finnesy‘s failure to accept responsibility and to deny Mr. Finnesy an acceptance-of-responsibility downward adjustment under
Viewed in the light most favorable to Mr. Finnesy, at best, the district court‘s comments make the record ambiguous concerning whether the court relied on the government‘s position that Mr. Finnesy failed to accept responsibility in denying him an acceptance-of-responsibility downward adjustment. As such, Mr. Finnesy cannot demonstrate with the requisite degree of clarity under the plain-error standard that the district court erred. In other
III
For the foregoing reasons, each of Mr. Finnesy‘s claims of error fails. We accordingly AFFIRM Mr. Finnesy‘s conviction and sentence.
Notes
Mr. Finnesy drills down on Ciapponi‘s language and urges that we take note of certain of the terms it employs. Most relevantly, he hones in on the term “conduct,” emphasizing that the opinion‘s holding is that a magistrate judge is authorized to “conduct” a felony plea colloquy. 77 F.3d at 1251 (emphasis added); see also id. at 1249, 1251 (discussing the issue in terms of “taking” a plea (emphasis added)). But conducting a change-of-plea colloquy on the one hand—which, by his reading, is all that Ciapponi countenances—and “accept[ing] a guilty plea and adjudicat[ing] a defendant guilty” on the other, are markedly and meaningfully distinct, he argues. Aplt.‘s Opening Br. at 16–17 (emphases added). A close reading of Ciapponi, however, undercuts Mr. Finnesy‘s argument on this score. First and foremost, in discussing the factual background of the case, Ciapponi made no mention of the magistrate judge issuing a recommendation to a district judge, nor did it characterize the magistrate judge‘s participation as limited to “conducting” a plea colloquy. 77 F.3d at 1249. Instead, it spoke of the magistrate judge “accept[ing] defendant‘s plea of guilty” and did not discuss any further action by the district court (aside from imposing a sentence). Id.
We also note that this court‘s subsequent cases citing Ciapponi, as well as at least one out-of-circuit case, frame Ciapponi‘s holding in terms of a magistrate judge‘s ability both to conduct a plea hearing and to accept a guilty plea. Salas-Garcia, 698 F.3d at 1253; Montano, 472 F.3d at 1204; see United States v. Harden, 758 F.3d 886, 891 (7th Cir. 2014) (observing “widespread agreement” that a magistrate judge may conduct a Rule 11 colloquy for purposes of making a report and recommendation, and that the Fourth, Tenth (in Ciapponi), and Eleventh Circuits further “authorize magistrate judges to accept felony guilty pleas with the parties’ consent“); see also United States v. Torres, 258 F.3d 791, 795 (8th Cir. 2001) (observing that the Second, Fifth, and Tenth circuits have ruled that a magistrate judge may preside over an allocution and plea in a felony case where the defendant consents, and that the Tenth Circuit (in Ciapponi) has further held that the district court “need not review the proceedings unless the parties so demand“).
Indeed, there is some suggestion in
We note that in Holguin-Hernandez, the Supreme Court recently clarified that the standard of specificity that at least one circuit—the Fifth—demanded litigants adhere to when lodging certain objections to the substantive reasonableness of sentences, i.e., the length of sentences, was too stringent to be consistent with the
In full, subsection (a)(1)(B) provides that:
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . .
Subsection (a)(4) specifies that—amongst the other variables that should be taken into account in determining relevant conduct—is “any other information specified in the applicable guideline.”
Because we do so for the reasons explicated here, we have no occasion to address the government‘s other arguments opposing Mr. Finnesy‘s (continued...)
11(...continued) second claim of error.