UNITED STATES OF AMERICA, Plаintiff - Appellee, v. SCOTT LOWE, Defendant - Appellant.
No. 23-1156
United States Court of Appeals for the Tenth Circuit
September 20, 2024
PUBLISH
Jess D. Mekeel, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), United States Attorney‘s Office, Denver, Colorado, for Plaintiff-Appellee.
Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges.
TYMKOVICH, Circuit Judge.
Scott Lowe challenges his conviction for drug trafficking and unlawful possession of a firearm. He contends that the government intruded on his Fourth Amendment privacy rights when it searched a storage unit he was using in his
We affirm. Mr. Lowe failed to establish a legitimate expectation of privacy in the storage unit. Moreover, sufficient evidence supports his conviction, and wе find no legal error in sentencing.
I. Background
In 2014, Mr. Lowe pleaded guilty to possession of a firearm by a felon under
Officer Buescher began receiving information from a confidential informant who alleged that Mr. Lowe used a storage unit to hide narcotics and firearms. Because of the informant‘s unreliable history, Officer Buescher did not immediately act on the information. When Officer Buescher eventually asked Mr. Lowe whether he had a storage locker, Mr. Lowe denied it. Officer Buescher also contacted the building management for Mr. Lowe‘s apartment, who confirmed that Mr. Lowe did not rent one.
On December 2, 2019, Officer Buescher conducted an unannounced search of Mr. Lowe‘s apartment and cell phone. The search uncovered messages implying involvement
Three days later, Officer Buescher received a tip that Mr. Lowe had hidden narcotics and firearms in one of the first two storage units on the eighth floor of his apartment. The informant also mentioned that Mr. Lowe‘s associates intended to clear out the storage unit. Indeed, earlier that day, Mr. Lowe—now incarcerated on unrelated state charges—had called a friend from jail, instructing them to “clean out” a place where “extra tools” were kept. Aple. Br. at 5–6. So the informant stated that time was of the essence. Since Officer Buescher was out of town, he asked Denver Police Detectives Ryan Roybal and Jose Diaz “to investigate the information” from the confidential informant and to help search the storage unit. Reply Br. at 7–8. The Denver police and the property manager entered the eighth-floor sprinkler room and saw several storage units with “see-through” mesh or chain-link doors. Officer Buescher told the officers to search the first or second unit on the right side of the sprinkler room. The unit had a metal padlock and contained various items. Nonetheless, the property manager confirmed that the unit should have been vacant and that “nobody should have access to
Inside, the officers discovered: (1) a zipped suitcase containing a .40 caliber Kahr handgun with a loaded magazine and an after-market grip; (2) a plastic bag with suspected narcotics; (3) Xanax pills; (4) a Smith & Wesson box with a loaded 9-millimeter magazine; (5) other ammunition; (6) vials of unknown substances; (7) a black ski mask; (8) a black t-shirt with “Police” printed on it; (9) small plastic baggies with a “smiley devil” logo; and (10) digital scales with white residue. (A forensic analysis later showed that Mr. Lowe likely contributed to the DNA profiles on the handgun, t-shirt, and ski mask. Aple. Br. at 6 n.1.). The officers also discovered other items directly connected to Mr. Lowe: (1) a prescription; (2) correspondence; (3) a piece of paper with Officer Buescher‘s letterhead; (4) a prescription for his ex-wife; (5) a Social Security card; (6) a passport; (7) and correspondence for his ex-wife‘s brother. Following the discovery of these items, Mr. Lowe was arrested and charged with possession with intent to distribute MDMA, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm as a felon.
While incarcerated, Mr. Lowe made several incriminating admissiоns during jail calls, discussing efforts to retrieve valuable items from the storage unit and referring to firearms as “tools.” Aple. Br. at 8. In one call, a friend informed Mr. Lowe that he had gone to retrieve some of Mr. Lowe‘s valuables but found the area “tor[n] out” and “ravaged.” Aple. Br. at 8. Mr. Lowe denied instructing anyone to go there, and the friend assured him that the area was not marked off as evidence. In another phone call,
Mr. Lowe moved to suppress the evidence obtained from the storage unit because the warrantless search violated his Fourth Amendment rights. The court denied the motion, ruling that Mr. Lowe lacked standing to challenge the search because he did not demonstrate a reasonable expectation of privacy in the contents of storage unit.
At trial, Mr. Lowe was convictеd on all three counts, and sentenced to 123 months in prison.
II. Discussion
Mr. Lowe presents four issues for appellate review.
First, he challenges the trial court‘s denial of his motion to suppress, arguing that Denver police obtained evidence from his cell phone and a storage locker during an unconstitutional and warrantless search, violating his Fourth Amendment rights. Mr. Lowe contends that the court erroneously found that he lacked standing to challenge these searches.1
Second, Mr. Lowe contests the jury‘s verdict and subsequent judgment of conviction, arguing that the evidence presented at trial was insufficient to prove he
Third, Mr. Lowe challenges the reasonableness of his sentence, arguing that the trial court erred in sentencing him for possession with intent to distribute both MDMA and methamphetamine. He contends that the jury only convicted him of possession with intent to distribute MDMA, and therefore, his sentence was improperly enhanced.
Fourth, and finally, Mr. Lowе argues that this Court should remand his case for resentencing under Amendment 821 of the Reform Act, contending that his criminal history level would be reduced from level V to level IV.
We address each in turn.
When reviewing a district court‘s decision on a motion to suppress, we view the record in the light most favorable to the prevailing party and accept the district court‘s findings of fact unless they are clearly erroneous. United States v. Johnson, 584 F.3d 995, 998 (10th Cir. 2009). We review de novo the ultimate legal conclusion of whether a search was reasonable under the Fourth Amendment.
The Fourth Amendment protects “the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”
To establish a protectable Fourth Amendment interest, a defendant must demonstrate a “legitimate expectation of privacy” in the prеmises searched. Terrence Byrd v. United States, 584 U.S. 395, 403 (2018) (citation omitted). “The test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the government‘s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” United States v. Ruckman, 806 F.2d 1471, 1474 (10th Cir. 1986) (quoting Oliver v. United States, 466 U.S. 170, 182–83 (1984)). Indeed, a subjective expectation of privacy does not warrant Fourth Amendment protection “unless society is prepared to accept
We therefore assume—without deciding—a point neither party disputes: Mr. Lowe‘s subjective expectation is not the dispositive issue here.2 The question is whether Mr. Lowe established an expectation of privacy in the storage facility that the public would consider objectively reasonable under the circumstances of this case. See Ruckman, 806 F.2d at 1472.
1. Legal Framework — Objective Reasonableness
“Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests.” Hudson v. Palmer, 468 U.S. 517, 527 (1984). Two sets of interests are at play here. The first is Mr. Lowe‘s unauthorized use of the apartment building‘s storage unit. The second is the government‘s interest in ensuring compliance with the conditions of supervised release and the releasee‘s interest in maintaining privacy. We begin with the former.
Our longstanding precedents reflect these principles. In United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986), for example, we held that a trespasser on federal land had no possessory interest in a cave he was apparently living in. We explained that the government had “the rights of an ordinary proprietor”—to maintain its possession and to prosecute trespassers—concerning its “own” lands, while the defendant was a “trespasser” subject to “immediate ejectment.” Id. at 1472–73. We therefore concluded that the defendant‘s subjective expectations were “not reasonable” since he could be “ousted” by the government “at any time.” Id. If individuals have “no legal right” to occupy the land and build on it, their completed actions do not establish a reasonable expectation of privacy, even if they own the structures they built. Id. (citing Amezquita v. Hernandez-Colon, 518 F.2d 8, 12 (1st Cir. 1975)).
Similarly, in United States v. Jones, 213 F.3d 1253, 1260 (10th Cir. 2000), we rejected an argument that an occupant had a protectable privacy interest in a condo
Finally, in United States v. Johnson, 584 F.3d 995 (10th Cir. 2009), we evaluated whether an individual could legitimately expect privacy in a storage unit rented using a stolen identity. In that case, the defendant instructed his girlfriend to rent a storage unit under a false identity. After the pair were later arrested, police officers contacted the identity theft victim. She later confirmed to the police that she had not rented the unit and agreed to its search. When the victim, the detective, and the manager of the facility arrived at the unit, they found it “secured by a heavy-duty
In determining whether the defendant could assert standing under the Fourth Amendment, we again assumed that the defendant had “established that he had a subjective exрectation of privacy[.]” Id. at 999. But we nevertheless concluded that the defendant did not establish that society would recognize his subjective expectation as objectively reasonable. To reach this conclusion, we recognized that people generally have a legitimate expectation of privacy in a storage unit. See id. at 1001 (citation omitted) (collecting cases). We also acknowledged that this legitimate expectation could extend even to individuals who are not the lessees of those units. But we nevertheless determined that the situation in Johnson was “not orthodox,” since the defendant “obtain[ed]” the rental unit “fraudulently.” Id. at 1001. Moreover, the defendant “knew [that the storage] unit was not in [his girlfriend‘s] name.” Id. at 998. That manner of acquisition “undermined” the “reasonableness of any privacy expectations[.]” (emphasis added). We refused to become “a party to [the] fraud” by “legitimizing [the defendant‘s] interest in the storage unit.” Id. at 1004. Therefore, even if the defendant exhibited a subjective expectation of privacy, we held that society wаs not prepared to recognize it as objectively reasonable under these circumstances.
In sum, these cases show that where property use is unauthorized or obtained through fraudulent means, society is generally not prepared to consider expectations of privacy arising out of such circumstances as objectively reasonable.
Applying these principles, we conclude that, based on the particular facts here, Mr. Lowe has failed to demonstrate a subjective expectation of privacy that the public is prepared to consider objectively reasonable.
First, Mr. Lowe failed to introduce any evidence that he occupied or used the storage unit—let alone with the permission of the owner, a legitimate renter, or any other person with the authority to grant such access. The property manager‘s records “did not show there was anyone paying” for the unit at issue. R. Vol. I at 430:22–24. Management also confirmed that Mr. Lowe did not have “any sort of storage unit or lockеr within the building that he had been renting out.” R. Vol. I at 388:04–11. Mr. Lowe provided no evidence to suggest otherwise. Further, Mr. Lowe asserted no interest in the property seized from inside the storage unit—a suitcase containing items he claimed “belong[ed] to other people.” Aple. Br. at 17 (citing R. Vol. I at 312:14–16). Simply put, Mr. Lowe made no attempt at an evidentiary showing that “his own Fourth Amendment rights were violated by the challenged search.” Rakas, 439 U.S. at 132 n.1. As a result, we “cannot make a determination” whether his subjective expectations were objectively reasonable. United States v. Rascon, 922 F.2d 584, 587 (10th Cir. 1990).4
Second, even if the record supported an inference that Mr. Lowe used the storage unit, “[m]ere physical possession or control of property is not sufficient to establish standing to object to a search of that property.” United States v. Conway, 73 F.3d 975, 979 (10th Cir. 1995) (citing United States v. Arango, 912 F.2d 441, 444–446 (10th Cir. 1990)). Mr. Lowe must show a lawful basis for asserting Fourth Amendmеnt privacy interests in the storage unit: demonstrating that he gained possession or permission from the apartment complex or someone with the authority.
Mr. Lowe failed to show that he lawfully obtained possession of the storage unit. Arango, 912 F.2d at 445. “[F]ail[ing] to present evidence of lawful possession” may indicate that a defendant had no reasonable expectation of privacy in the property. United States v. Abreu, 935 F.2d 1130, 1133 (10th Cir. 1991). Here, the record establishes that the apartment complex owned the storage units and only permitted the tenants to “rent them out.” R. Vol. I at 293:16. Indeed, the property manager told Officer Diaz that “the vacant [storage] units should be vacant” and “nobody should have access to them unless they were paying for them.” R. Vol. I at 430:20–22. And no evidence shows that Mr. Lowe rented a storage unit. R. Vol. I at 388:04–11. Nor did Mr. Lowe provide evidence that he “shar[ed] [a storage unit]
To be sure, “[p]roperty ownership” is not necessarily “controlling.” Abreu, 935 F.2d at 1133. But whatever interest Mr. Lowe had in the storage unit was “certainly not as strong,” Johnson, 584 F.3d at 1003, as it would have been if he had rented out the storage unit according to the conditions set by the property owner—the apartment complex. See Jones, 213 F.3d at 1260 (violating conditional permissions diminishes legitimate expectations of privacy). The district court noted that when a storage unit is used without permission, apartment management‘s policy is to notify the user to remove the “property improperly held in [the] unrented storage locker.” R. Vol. I. at 357 n.4. After the notice period lapses, the apartment management removes the property from the storage unit, places it outside the building area, and discards it after 24 hours. R. Vol. I at 294:16–18. These facts erode Mr. Lowe‘s claim that his expectation of privacy was reasonable. See Ruckman, 806 F.2d at 1472–73 (concluding that a defendant did not have an objectively reasonable expectation of privacy in a cave owned by the government because of the vulnerability of being ejectеd at any moment by the government acting as an ordinary proprietor).
Absent any evidence showing lawful or legitimate use or possession, we conclude that Mr. Lowe failed to provide sufficient evidence to establish an objectively reasonable expectation of privacy in the storage unit. See United States v. Arango, 912 F.2d 441 (10th Cir. 1990)
Mr. Lowe counters by asserting that, as “a tenant in the apartment building where the storage locker was located,” he had “the right and ability to utilize the storage lockers.” Reply Br. at 12. He further contends that his situation is distinct because it involves “an apartment complex in which he legally resides” and “storage units that tenants have a right to use.” Reply Br. at 14.
This argument fails. Mr. Lowe essentially argues that his legitimate presence on the premises of the apartment complex automatically grants him a legitimate expectation of privacy in all areas searched. We rеject this reasoning. First, the Supreme Court has “abandon[ed] the ‘legitimately on premises” doctrine. Rakas, 439 U.S. at 141–42, 147–48. Second, “even a property interest in [a] premises” may not suffice to establish a legitimate expectation of privacy with respect to specific “activity conducted” there. Id. at 144 n.12. So Mr. Lowe‘s status as a legitimate tenant in the apartment complex, by itself, is “not determinative” of whether he had a Fourth Amendment interest in the “particular area[]” searched. Cf. id. at 148–49 (concluding that a “passenger qua passenger” who asserts neither a property interest nor a possessory interest and disclaims any interest in the seized object has no
So Mr. Lowe may have had “the right and ability to utilize” the property, Reply. Br. at 12, but that fact alone is trivially true. Still, it does not establish that Mr. Lowe utilized the storage in a manner that confers a legitimate expectation of privacy.5 As the proponent of the motion tо suppress, Mr. Lowe bore the burden of adducing facts to demonstrate a lawful basis to establish a legitimate use. His failure to offer any evidence compels the conclusion that he did not meet that burden. See, e.g., Carr, 939 F.2d at 1446 (concluding that a defendant who presented no evidence at the suppression hearing failed to sustain his burden of proof that he had a legitimate expectation of privacy in a room not registered to him).
Third and finally, even if Mr. Lowe had somehow obtained authorization to use the storage unit, “Rakas makes clear that wrongful presence at the scene of a search would not enable a defendant to object to the legality of the search.” Byrd, 584 U.S. at 409 (quoting Rakas, 439 U.S. at 141 n.9) (internal quotation marks omitted). Here, the evidence establishes that Mr. Lowe‘s actions of obtaining and using the storage unit violated the terms of his supervised release. Consequently, on these facts, Mr. Lowe‘s claim to privacy from government intrusion is not one
Individuals on supervised release inherently possess reduced privacy expectations because of the heightened scrutiny required to ensure compliance with release conditions. See United States v. Pacheco, 884 F.3d 1031, 1041 (10th Cir. 2018) (“[W]hen the terms of a parolee‘s parole allow officers to search his person or effects with something less than probable cause, the parolee‘s reasonable expectation of privacy is significantly diminished.”) (internal quotation marks omitted). And Mr. Lowe‘s supervised release conditions expressly required that he answer truthfully any
Yet when Officer Buescher twice asked Mr. Lowe whether he had a storage unit, Mr. Lowe twice denied obtaining or possessing one. R. Vol. I at 350, 387:16 (first denial), 388:16 (second denial). See also United States v. Hansen, 652 F.2d 1374, 1384 n.8 (10th Cir. 1981) (concluding that the defendant‘s statements denying any ownership in a motel room and statements identifying item found inside as belonging to someone else “conclusively establishes” that defendant did not have a legitimate expectation of privacy in the motel room).7 And Mr. Lowe did not
Recognizing Fourth Amendment interests in arrangements that evade legal supervision fundamentally contradicts the purpose and rationale of those release conditions. It follows that Mr. Lowe‘s claim “cannot be reconciled,” Hudson, 468 U.S. at 526, with the principles governing supervised release or society‘s interests in enforcing supervised release conditions. Thus, we conclude that the record establishes that Mr. Lowe‘s acquisition and use of the unit was “wrongful.” Cf. United States v. Dodds, 946 F.2d 726, 729 (10th Cir. 1991) (concluding that a fugitive defendant with no interest in the apartment established no legitimate expectation of privacy in the apartment). Accordingly, Mr. Lowe “could not expect
voluntarily abandoned an expectation of privacy in a rental house by “explicit[ly] stat[ing]” in letter to landlord that he no longer would be renting the property, thereby terminating the lease).
In sum, Mr. Lowe did not demonstrate standing to assert a Fourth Amendment claim in the storage unit or its contents.
B. Sufficiency of the Evidence
Next, Mr. Lowe contends that the government failed to present sufficient evidence that he possessed a firearm in furtherance of a drug trafficking crime. Before addressing this contention, we must first consider whether he preserved it for appeal.
1. Preservation
Mr. Lowe stated in his opening brief that he preserved a challenge to the in-furtherance element during his oral Rule 29 motion for a judgment of acquittal when he argued that “the Government did not present sufficient evidence to prove the elements of Counts 1 and 2.” Aplt. Br. at 45 (citing R. Vol. III at 58:7–15). The government argues in response that Mr. Lowe failed to preserve this argument, contending that Mr. Lowe only argued that the evidence was insufficient to support a reasonable jury finding of firearms possession.
Viewing the evidence in the light most favorable to the Government, I still argue that the Government has not proven the elements as to Count 1 and 2 beyond a reasonable doubt. They have not tied Mr. Lowe directly to the suspected MDMA or to . . the .40-caliber Kahr handgun that was found in the storage unit. So I would argue that the case should be dismissed as to those two counts at this time.
R. Vol. III at 58: 7–15 (emphasis added).10
The government asserts that Mr. Lowe‘s
Convicting Mr. Lowe under
Mr. Lowe challenged the government‘s evidence as insufficient to “tie[] Mr. Lowe to the suspected MDMA” and insufficient to “tie[] Mr. Lowe . . . to the handgun.” R. Vol. III at 58: 7–15; see also Reply at 1. Therefore, Mr. Lowe based his motion for judgment of acquittal on the
“As a general matter, arguments not raised before the district court are forfeited on appeal.” United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2019) (citing Richison, 634 F.3d at 1127–28). “On appeal, we can only consider forfeited arguments under the plain error standard of review.” Id. Yet Mr. Lowe failed to make a plain-error argument in his opening brief, however, and failed to “allege plain error in [his] reply brief after the Government assert[ed] waiver” in its brief in response. Leffler, 942 F.3d at 1198. Accordingly, we may follow our ordinary course and “deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.” Id. at 1196.
But that is inappropriate in this context because the issue was preserved below. In United States v. Hernandez-Rodriguez, we concluded that when the district court “sua sponte raises and explicitly resоlves an issue of law on the merits,” the appellant “may challenge that ruling on appeal on the ground addressed by the district court even if he failed to raise the issue in district court.” United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003). See also Garcia, 936 F.3d at 1132 (“[I]f the district court was ‘adequately alerted to the issue,’ and perhaps even responded to the issue, then we are able to review on appeal.“). In such a scenario, we review not for ‘plain error’ but rather the “same standard of appellate review that would be applicable if the appellant had properly raised the issue.” Hernandez-Rodriguez, 352 F.3d at 1328.
The same is true here. The government “responded to [the] motion by arguing that the evidence was sufficient not only on [the challenged element], but also on all other elements,” and the district court‘s ruling “addressed all the elements.” Id. In addressing Mr. Lowe‘s motion for judgment of acquittal, the government stated:
And I think establishing possession of the Kahr specifically, and in those phone calls I note, Your Honor, the defendant actually admits to actual possession, I believe on Friday, the
24th, where he mentions that, you know, the Kahr -- the two-toned one that he was showing to one of his friends I think earlier that day. I interpret that to mean earlier the Friday he was taken into custody. So that‘s actual possession. That means he had to place that firearm in that luggage that day. That‘s — that actual possession also is evidence of the constructive possession he had on the 27th when he sent people up there to try to get it before police did. It‘s also evidence of his constructive possession of the narcotics in the luggage.
The narcotics that you heard from Detective Jeffers is an amount that is not common or, rather, is an amount for distribution along with all the other evidence of distribution. The gelatin capsules, the pill press, the baggies, the scales. Take that altogether, Your Honor, all that is sufficient at this time to proceed with the jury and let them make a determination on the charges. Thank you.
R. Vol. III at 62: 2–23 (emphasis added).
Given this, we find that the government addressed the “in furtherance of” element required for conviction. The government argued that phone calls established “possession of the Kahr specifically,” which Mr. Lowe admitted to “plac[ing] . . . in the luggage that day.” The government also argued that the firearm‘s placement in the luggage to the constructive possession of narcotics found in the same luggage was “also evidence of [Mr. Lowe‘s] constructive possession of the narcotics.” Lastly, the government argued that testimony showed that the quantity of narcotics found was “an amount for distribution.” These points collectively relate to factors relevant to
The district court‘s ruling also expressly addressed all the elements. For the drug trafficking crime, the court found that “a reasonable jury could conclude that Mr. Lowe knowingly or intentionally possessed MDMA.” Regarding possession, the court concluded that facts showing that Mr. Lowe‘s “DNA was very likely present on the Kahr firearm,” supported “the inference that Mr. Lowe possessed the firearm.” R. Vol. III at 67: 18–21. And in furtherance of the drug trafficking crime, the court concluded that “A reasonable jury could infer from these facts that Mr. Lowe possessed the Kahr firearm . . . fоr the purpose of assisting in or accomplishing his drug trafficking activities, i.e., in furtherance of those activities.”12 Thus, we reject the government‘s waiver argument and conclude that the government‘s response and the district court‘s ruling addressed all the elements of Mr. Lowe‘s evidentiary
2. Merits
That said, we conclude that sufficient evidence existed to sustain Mr. Lowe‘s conviction. In reviewing the sufficiency of the evidence, we consider all the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a
As stated above, convicting Mr. Lowe under
First, the government presented evidence that Mr. Lowe possessed items typically associated with drug trafficking, including the means to protect himself while engaging in it. “Some items like firearms, large sums of cash, weighing scales, and uncharged quantities of illegal drugs are generally viewed as tools of the trade—that is, means for the distribution of illegal drugs.” United States v. Hall, 473 F.3d 1295, 1304 (10th Cir. 2007) (internal quotation marks omitted). Mr. Lowe has not
Second, the government presented evidence of a loaded firearm near the drugs, indicating Mr. Lowe‘s intent to use it for protection in drug trafficking. “A loaded firearm is obviously better suited to serve as protection for illegal drugs that a defendant intends to distribute.” United States v. McGehee, 672 F.3d 860, 872 (10th Cir. 2012) (internal quotation omitted) (citing King, 632 F.3d at 656). The Kahr handgun found in the suitcase near the drugs was loaded. Aple. Br. at 36 (citing R. Vol. III at 243, 247); seе Robinson, 435 F.3d at 1251 (affirming a
Mr. Lowe resists this conclusion by arguing that “[n]o evidence . . . directly tied” him to the drugs or the gun. Reply at 1. See also Reply Br. at 2 (“zero evidence” linking the “firearm in the storage locker” to “the furtherance of a drug transaction“). He contends that nothing at trial demonstrated his use of a firearm during any alleged drug sales and that the gun‘s location fails to prove it was used in furtherance of a particular drug trafficking crime.
These arguments fail. For one thing, “[t]he intent to possess the weapon to further the drug trafficking crime is generally proven through circumstantial evidence[.]” United States v. Rogers, 556 F.3d 1130, 1140 (10th Cir. 2009). And more to the point: the offense here “does not require evidence that the gun was actively used or employed, only evidence that it was ‘possessed’ in furtherance of a drug-trafficking crime.” King, 632 F.3d at 656 (citing Basham, 268 F.3d at 1208 (recognizing passive possession). So the government need not prove that the firearm
C. Sixth Amendment Violation
Mr. Lowe next claims that the district court violated his Sixth Amendment rights by erroneously finding methamphetamine in the mixture he possessed since the lab results did not confirm the presence of methamphetamine.
The government asserts that Mr. Lowe did not raise a Sixth Amendment challenge at the district court. Aple. Br. at 39 (citing R. Vol I:62-63; R. Vol. II:16; R. Vol. III:20-23). We agree. All that Mr. Lowe did was object to the base offense level calculation, arguing that the lab report did not specify an amount of methamphetamine present in the mixture. R. Vol I:62-63 (objections); R. Vol. III:20-23 (sentencing hearing). But hе did not explicitly raise a Sixth Amendment claim at the district court. Put another way: while Mr. Lowe contested the drug quantity and the presence of methamphetamine, he did not specifically frame this contention as a Sixth Amendment violation during the district court proceedings. And Mr. Lowe did not “allege plain error in a reply brief after the Government assert[ed] waiver” in its brief in response. Leffler, 942 F.3d at 1198. “When an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.” Id. at 1196 (citing Richison, 634 F.3d at 1130–31). That is appropriate here since the government would have been prevented from responding in writing to Mr. Lowe‘s arguments on the plain error standards. See id. at 1198
But even if we reached the merits оf the underlying contention, the record shows that “detectable” or “trace” amounts of methamphetamine were found. Under United States v. Valdez, 225 F.3d 1137 (10th Cir. 2000), that is enough. In that case, we dealt with an amount of methamphetamine that was “detectable but not measurable or quantifiable.” Id. at 1142. We held that “a substance containing an ‘unquantifiable trace’ of methamphetamine still contains a sufficiently detectable amount of the drug to be included as relevant conduct.” Id. at 1143 (citing United States v. Killion, 7 F.3d 927, 935 (10th Cir. 1993)). We thus concluded that “sufficient evidence in the record [supported] the district court‘s finding that the substances underlying the acquitted charges contained a detectable amount of methamphetamine.” Id. at 1143–44. Thus, the trace amounts of methamphetamine sufficed to be considered at sentencing.
Applying that logic and reasoning, we conclude the same here.14
Finally, Mr. Lowe contends that his case warrants a remand for resentencing under Amendment 821 to the Sentencing Guidelines. The government asserts in response that whether Mr. Lowe qualifies for a sentence reduction under the amendment is “a matter for the district court, in its discretion, to determine in the first instance under
* * *
Accordingly, we AFFIRM the district court‘s denial of Mr. Lowe‘s motion to suppress and AFFIRM Mr. Lowe‘s conviction and sentencing.
Notes
Mr. Lowe similarly did not initially address in his original