Summaries of Selected Opinions, 0120 COBJ, Vol. 49, No. 1 Pg. 92

PositionVol. 49, 1 [Page 92]

49 Colo.Law. 92

Summaries of Selected Opinions

Vol. 49, No. 1 [Page 92]

Colorado Lawyer

January, 2020


No. 18-8069. United States v. Carter. 10/28/2019. D.Wyo. Judge McKay. U.S. Sentencing Guidelines—Variance—Forfeiture or Waiver—Presumption of Reasonableness.

Defendant pleaded guilty to possessing a firearm as a felon and manufacturing counterfeit notes. At sentencing, the district court applied a cross-reference to U.S. Sentencing Guideline § 2K2.l(c) for the firearm offense based on defendant's use of the firearm in connection with an uncharged drug distribution offense, which resulted in a greater offense level than a straightforward application of the firearm offense Guideline. Defendant requested a four-level downward variance from the total offense level. The district court granted a two-level downward variance and sentenced him to 84 months in prison.

On appeal, defendant argued that the district court procedurally erred in applying the cross-reference and his sentence was thus unreasonable. He contended that the only evidence presented as a basis for the cross-reference, a confidential informant's proffer, was unreliable because it was unsworn, uncorroborated, internally inconsistent, and otherwise not credible, and was thus insufficient to support a finding by preponderance that defendant was responsible fort trafficking nine ounces of methamphetamine. Here, defendant raised in district court the same objection to the cross-reference and then affirmatively abandoned it, so he waived this argument. Further, even assuming defendant merely forfeited the procedural challenge, he is not entitled to plain error review of the district court's factual findings.

Defendant also contended that his sentence was substantively unreasonable because the parties did not consider the cross-reference when negotiating the plea agreement. Defendant's speculation that the court would have granted the two-level downward variance in the absence of the cross-reference issue (or in addition to a four-level variance in light of the cross-reference issue) is not enough to overcome the presumption of reasonableness afforded the below-guidelines sentence he received.

The sentence was affirmed.

No. 18-6047. United States v. Anthony.

10/31/2019. W.D.Okla. Judge Phillips. Trafficking Victims Protection Reauthorization Act—Mandatory Victims Restitution Act—Conspiracy—Disaggregation of Harms.

Defendant was convicted of child sex trafficking and conspiracy to commit child sex trafficking. The district court sentenced him and ordered him to pay restitution to two victims, R.W. and M.M.

On appeal, defendant argued that the district court erred by ordering him to pay restitution for losses that R.W...

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