                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 28, 2019
                                      PUBLISH                     Elisabeth A. Shumaker
                                                                      Clerk of Court
                     UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT
                       _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 18-8069

BRICE ASHTON CARTER,

      Defendant - Appellant.



                       _________________________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF WYOMING
                    (D.C. No. 2:18-CR-00079-ABJ-1)
                  _________________________________

Submitted on the briefs:*

Ann Marie Taliaferro of Brown, Bradshaw & Moffat, LLP, Salt Lake City, Utah, and
Michelle Quist, Salt Lake City, Utah, for Defendant - Appellant.

Mark A. Klaassen, United States Attorney, District of Wyoming, Cheyenne,
Wyoming, for Plaintiff - Appellee.
                      _________________________________

Before MORITZ, McKAY, and CARSON, Circuit Judges.
                 _________________________________


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
McKAY, Circuit Judge.
                   _________________________________

      In this appeal, we consider the procedural and substantive reasonableness of a

sentence imposed for a firearm offense following application of a guidelines cross-

reference, pursuant to U.S.S.G. § 2K2.1(c), to an uncharged drug offense.

Concluding that the procedural challenge is not subject to plain-error review and that

the substantive challenge is without merit, we affirm the sentence.

                                  BACKGROUND

      In 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, in violation of 18 U.S.C. §§ 922(g)(1),




                                           2
924(a)(2), and one count of manufacturing counterfeit notes, in violation of 18 U.S.C.

§ 471.1 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 calls 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. See U.S.S.G.

§ 2K2.1(c)(1)(A) (2016). 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. See

U.S.S.G. §§ 2D.1.1(a)(5), (b)(1), (c)(7), 2X1.1(a), 3E1.1(a)–(b) (2016). 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.

      Defendant objected to the cross-reference on three grounds. First, Defendant

argued the CI’s proffer simply was insufficient to support a finding by a

preponderance that he was responsible for distributing nine ounces of

      1
        On appeal, Defendant does not challenge his conviction or sentence for the
counterfeiting offense, and it does not affect the parties’ arguments or the court’s
decision.
                                            3
methamphetamine. Defendant explained that the proffer was uncorroborated and not

given under oath in a judicial proceeding, leaving the CI’s credibility in doubt. In this

same vein, he later contended the CI’s story was inconsistent, explaining the CI at one

point stated Defendant had bought eight, not nine, ounces of methamphetamine, and

thus was subject to further doubt—although the basis for this contention does not

appear in the record. Next, Defendant argued that the parties’ plea negotiations had

not contemplated that the CI’s proffer would be used at sentencing to support a cross-

reference. Finally, Defendant argued that cross-references from the firearm-offense

guideline are rarely used and are inappropriate especially where, as in his case, the

factual basis for the cross-reference is contested.

      Instead of the cross-reference, Defendant argued for straightforward

application of the firearm-offense guideline, § 2K2.1. He claimed that, after

adjustments, this would elicit a total offense level of 21 which, when combined with

his criminal history category, should result in a guidelines range of 70 to 87 months’

imprisonment. However, in the event the district court decided to apply the cross-

reference, Defendant requested a four-level downward variance to his total offense

level in order to honor the parties’ understanding of the plea agreement.

      At the initial sentencing hearing, Defendant reiterated his objection to the

cross-reference. He argued that the district court should not credit the CI’s proffer

because it was unsworn, uncorroborated, and inconsistent and that, because the CI’s

credibility had not been established, the proffer was insufficient to support the cross-

reference’s application. In response, the government pointed out the CI’s statement

                                            4
that Defendant purchased the methamphetamine in exchange for firearms was

corroborated by the identification of Defendant’s fingerprints on the storage box

containing the pistol recovered from the CI’s home. Rather than resolving the

dispute, the court recessed the hearing in order to “get the witness in and proceed.”

(R., vol. III, at 77.)

       Two days later, the district court reconvened the hearing to address the CI’s

credibility. Before the hearing proceeded further, however, defense counsel advised

the court:

       Since the [previous] hearing . . . , we have been provided with
       information that does support the credibility of this witness, and we are
       now going to withdraw our factual objection to inclusion of that
       information in the report. And, therefore, we are withdrawing our
       objection to the report at this time.

(Id. at 37–38.) Upon the court’s inquiry, defense counsel stated there were no other

objections to the PSR, and the court expressly adopted the PSR’s findings and

accepted its calculation of the total offense level and advisory guidelines range.

       Defendant then reiterated his request for a four-level downward variance from

the total offense level, which would result in a range of 70 to 87 months, and asked

for a sentence of 70 months’ imprisonment. He argued the variance would effectuate

the parties’ intent when they negotiated the plea agreement and account for the

infrequent application of the cross-reference. The district court asked if any other

factors merited a variance, and defense counsel responded that Defendant’s untreated

mental illness, his demonstrated sense of loyalty, and his willingness to make

substantial changes in his life also militated in favor of a variance.

                                             5
      The district court reflected on a number of sentencing factors, the difficulties

Defendant faced due to his background and criminal history, and the likelihood

Defendant would recidivate. The court then granted a two-level downward variance,

which produced a range of 84 to 105 months’ imprisonment, see U.S.S.G. ch. 5, pt. A

(sentencing table), and sentenced Defendant to 84 months in prison.

      Defendant timely appealed. He now challenges the procedural and substantive

reasonableness of his sentence.

                                      ANALYSIS

      “When we review a sentence for reasonableness, our review ‘includes both a

procedural component, encompassing the method by which a sentence was calculated,

as well as a substantive component, which relates to the length of the resulting

sentence.’” United States v. Griffith, 928 F.3d 855, 872 (10th Cir. 2019) (quoting

United States v. Ortiz-Lazaro, 884 F.3d 1259, 1261 (10th Cir. 2018)). “We normally

review a defendant’s claim of procedural unreasonableness for abuse of discretion,

‘under which we review de novo the district court’s legal conclusions regarding the

guidelines and review its factual findings for clear error.’” Ortiz-Lazaro, 884 F.3d at

1262 (quoting United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012)).

However, if a defendant forfeits the procedural challenge by failing to preserve it, we

review it only for plain error. See id. (citing Gantt, 679 F.3d at 1246). And, if a

defendant waives the procedural challenge, we do not review it even for plain error.

See United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012); United States v.

Teague, 443 F.3d 1310, 1314–15 (10th Cir. 2006).

                                            6
       Defendant’s procedural challenge to his sentence attacks the factual basis for

applying the § 2K2.1(c) cross-reference. As he did in the district court, Defendant

contends that the only evidence presented as a basis for the cross-reference—the CI’s

proffer—was unreliable because it was unsworn, uncorroborated, internally

inconsistent, and otherwise not credible. The proffer, Defendant argues, was thus

insufficient to support a finding by preponderance that Defendant was responsible for

trafficking nine ounces of methamphetamine, and the district court plainly erred in

applying the cross-reference. The government responds that Defendant’s procedural

challenge is not subject to appellate review because it has been waived. We agree.

       “[W]aiver is the intentional relinquishment or abandonment of a known right,”

whereas, in contrast, “forfeiture is the failure to make the timely assertion of a right.”

Teague, 443 F.3d at 1314 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

“We typically find waiver in cases where a party has invited the [putative] error that it

now seeks to challenge, or where a party attempts to reassert an argument that it

previously raised and abandoned below.” United States v. Zubia-Torres, 550 F.3d

1202, 1205 (10th Cir. 2008). We have previously found waiver where a defendant at

a sentencing hearing abandoned a previously advanced objection to the PSR by

affirming that the objection had been resolved. See United States v. Carrasco-

Salazar, 494 F.3d 1270 (10th Cir. 2007). Other courts of appeal have done the same.

See id. at 1273 (collecting cases). Indeed, we have said, “[t]here can be no clearer

intentional relinquishment or abandonment of a known right than when the court

brings the defendant’s prior objection to his attention [and] asks whether it has been

                                             7
resolved, and the defendant affirmatively indicates that it has.” Zubia-Torres, 550

F.3d at 1207 (internal quotation marks, citations, and brackets omitted).

      Here, Defendant raised in the district court the same objection to the § 2K2.1(c)

cross-reference he now seeks to raise on appeal and then affirmatively abandoned it.

Defendant objected to the factual basis for the cross-reference both in written

responses to the PSR and orally at the initial sentencing hearing. The court recessed

the hearing specifically to address Defendant’s objection, and, when the hearing

reconvened, defense counsel unequivocally stated that Defendant withdrew his

objection to the factual basis. These circumstances nearly mirror those that we have

identified as one of the clearest examples of the intentional relinquishment or

abandonment of a known right, which precludes appellate review. See id. We

therefore conclude that Defendant’s procedural challenge to the factual basis for the

cross-reference has been waived.2

      2
         Defendant appears to also take a slightly different tack on appeal, arguing the
preponderance standard was not met because the government failed to present any
evidence, and the district court did not make any finding, that Defendant was
responsible for nine ounces of methamphetamine. We think this line of argument has
also been waived. See United States v. Nelson, 868 F.3d 885, 891 n.4 (10th Cir. 2017)
(explaining the rules of forfeiture and waiver apply to new theories raised on appeal
that fall under the same general category as an argument presented in the trial court).
       In any event, Defendant’s new theory is meritless. A sentencing court “may
accept any undisputed portion of the presentence report as a finding of fact.” Fed. R.
Crim. P. 32(i)(3)(A). Thus, even where “the only evidence in the record in support of
the district court’s factual findings [i]s the PSR[’s] . . . summary of the [relevant]
conduct[,] . . . [o]ur precedent is clear that . . . district courts are free to accept
‘uncontested facts contained in the PSR’ for purposes of sentencing.” United States v.
Robertson, 568 F.3d 1203, 1214 (10th Cir. 2009) (quoting United States v. Mateo, 471
F.3d 1162, 1166 (10th Cir. 2006)).
       In this case, the PSR stated that Defendant had purchased nine ounces of
methamphetamine from the CI in exchange for the pistol underlying the offense of
                                           8
       Even assuming, as Defendant contends, that he merely forfeited rather than

waived the procedural challenge, he still is not entitled to plain-error review. “‘Under

the plain error standard, we will not review the district court’s factual findings

relating to sentencing’”; instead, we “‘will review for particularly egregious or

obvious and substantial legal error, which our failure to consider would result in a

miscarriage of justice.’” United States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th

Cir. 2003) (emphasis added) (quoting United States v. Ballard, 16 F.3d 1110, 1114

(10th Cir. 1994)). Although arguably we might have deviated from this principle in

some circumstances, see, e.g., United States v. Bass, 411 F.3d 1198, 1208–10 (10th

Cir. 2005) (Tymkovich, J., concurring in part and dissenting in part), we continue to

regularly adhere to it, see, e.g., United States v. Griffith, 928 F.3d 855, 874 (10th Cir.

2019); United States v. Smith, 531 F.3d 1261, 1271 (10th Cir. 2008). The reason for

this limitation on plain-error review is that, “when a defendant properly raises the

disputed factual issues in the district court, a record sufficient to permit adequate

review is thereby developed,” but, “when a defendant fails to raise the issue below,

we have no factual record by which to review” the district court’s factual

determinations. United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir. 1991),




conviction, that Defendant’s fingerprints were on the pistol’s storage box recovered
from the CI’s home, and thus that Defendant was responsible for the
methamphetamine. Defendant went beyond merely failing to dispute these facts; he
affirmatively withdrew any objection to them. The district court then expressly
adopted the PSR’s findings. Thus, contrary to Defendant’s assertions, the court found
he was responsible for the nine ounces of methamphetamine based on undisputed
portions of the PSR. There is no error here.
                                             9
abrogated on other grounds by Stinson v. United States, 508 U.S. 36 (1993); see also

Smith, 531 F.3d at 1271.

      Here, the district court expressly adopted the PSR’s factual findings—including

the PSR’s determination that nine ounces of methamphetamine were attributable to

Defendant based on the CI’s proffer—as its own. Thus, the district court implicitly

found the CI was credible and the proffer reliable. Defendant’s arguments amount to

a challenge to these factual findings. But factual-dependent determinations like these

typically are not subject to plain-error review. Further, the rationale underlying this

limitation on plain-error review calls for its application here: Defendant’s withdrawal

of his objection to the cross-reference prevented the parties and the court from further

developing a factual record even though the court had paused the proceedings

specifically to do so. As a result, Defendant’s own actions have deprived us of any

meaningful opportunity to evaluate the accuracy of the district court’s factual

determinations in this regard, so reviewing them for plain error is simply out of the

question.

      Defendant also challenges the substantive reasonableness of his 84-month

sentence. “‘We consider the substantive reasonableness of the length of a sentence

under an abuse-of-discretion standard,’” and “‘[a] district court abuses its discretion

when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly

unreasonable.’” Ortiz-Lazaro, 884 F.3d at 1265 (quoting United States v. Steele, 603

F.3d 803, 809 (10th Cir. 2010)). “When reviewing a sentence for substantive

reasonableness, we focus on ‘whether the length of the sentence is reasonable given

                                           10
all the circumstances of the case in light of the factors set forth in 18 U.S.C.

§ 3553(a).’” United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019) (quoting

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)). A sentence below

a correctly calculated advisory guidelines range is presumed to be reasonable in a

challenge brought by a defendant, see United States v. Damato, 672 F.3d 832, 848

(10th Cir. 2012), and the defendant faces a hefty burden to rebut the presumption of

reasonableness in this context, see United States v. Durham, 902 F.3d 1180, 1238

(10th Cir. 2018); United States v. Verdin-Garcia, 516 F.3d 884, 898 (10th Cir. 2008).

Indeed, where the sentencing court grants a downward variance from the

recommended guidelines range, the sentence in some respects warrants even greater

deference. See Cookson, 922 F.3d at 1091; United States v. Barnes, 890 F.3d 910,

916 (10th Cir. 2018).

       Defendant raises no meritorious argument against application of the § 2K2.1(c)

cross-reference or against any other aspect of the district court’s guidelines

calculations. Thus, we conclude the court correctly determined the guidelines range

to be 100 to 125 months of imprisonment. The court’s imposition of a sentence below

that range, at 84 months, pursuant to a two-level downward variance is accorded great

deference and the presumption of reasonableness.

       Defendant’s substantive challenge rests on his contention that the parties did

not consider the cross-reference when negotiating the plea agreement and instead

contemplated a guidelines range of 70 to 87 months’ imprisonment based on

straightforward application of the firearm-offense guideline. It hardly makes sense,

                                            11
however, to complain that an 84-month sentence is unreasonably long when it falls

within the guidelines range Defendant says he expected. Anticipating this, Defendant

argues his sentence is too long when compared to the range he expected along with

the two-level downward variance the district court granted him. In his view, the court

should have granted him a four-level variance to account for the unexpected cross-

reference, decreasing the range to 70 to 87 months. Then, the additional two-level

variance the court granted would have yielded a range of 57 to 71 months. The 84-

month sentence is unreasonable, Defendant argues, because the court failed to grant a

four-level variance to account for the unanticipated cross-reference and only granted a

two-level variance based on other qualitative factors, such as Defendant’s

commitment to turning his life around.

      Defendant’s attempt to rebut the district court’s presumptively reasonable,

below-guidelines sentence is unpersuasive. The chief problem in Defendant’s

argument is that he assumes the court would have granted the two-level variance even

if it had not been confronted with the cross-reference issue. This is hardly clear from

the record. Rather, it seems, as the government argues, that the court granted the two-

level variance at least in part because of the unexpected application of the cross-

reference. In any event, 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. See United States v. Gallegos, 655 F. App’x 615, 617 n.4 (10th Cir.

                                           12
2016) (unpublished). Ultimately, on the record before us, we cannot say the court’s

imposition of a sentence within the range Defendant says he expected in the absence

of the cross-reference was unreasonably long, amounting to an abuse of the court’s

discretion.

                                  CONCLUSION

      We accordingly AFFIRM Defendant’s sentence.




                                         13
