United States v. Carter, No. 18-8069 (10th Cir. 2019)
Annotate this CaseIn 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, and one count of manufacturing counterfeit notes. Defendant pled guilty to both counts pursuant to a plea agreement. At sentencing, the presentence investigation report noted the sentencing guideline for the firearm offense called 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. 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. 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. In this appeal, the issue presented for the Tenth Circuit’s review was the procedural and substantive reasonableness of Defendant’s sentence. Concluding that the procedural challenge was not subject to plain-error review and that the substantive challenge was without merit, the Tenth Circuit affirmed the sentence.
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