                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                               FOR THE TENTH CIRCUIT                         October 3, 2018

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                            No. 17-2091
                                                    (D.C. No. 2:16-CR-03859-JFM-1)
LEWIS TEMPLETON,                                                (D.N.M.)

       Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before TYMKOVICH, Chief Judge, MORITZ and EID, Circuit Judges.


       Lewis Templeton was convicted of being a felon in possession of a firearm. The

conviction arose out of a search of his home following Templeton’s sale of marijuana to a

confidential informant. On appeal, Templeton challenges a four-level enhancement to his

offense level for possessing firearms that had the potential of facilitating another felony

offense. Templeton alleges that evidence presented in the district court regarding the

physical proximity between the firearms and the marijuana sale was insufficient to

establish that the firearms had the potential of facilitating the drug sale. We hold that

Templeton waived this argument because he did not raise it at the sentencing hearing.


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm the district

court’s application of the four-level enhancement under § 2K2.1(b)(6)(B) of the 2016

United States Sentencing Guidelines (“USSG”).

                                            I.

       On November 2, 2015, a confidential informant advised agents with the Lea

County Drug Task Force that Templeton was selling marijuana from his home.

Presentence Report (“PSR”) ¶ 6. The same day, at the request of the agents, the

confidential informant successfully purchased an unknown amount of marijuana from

Templeton “at his residence.” Id. ¶ 39. On November 3, 2015, agents from the drug task

force executed a search warrant at Templeton’s address. Id. ¶ 7.

       During the execution of the search warrant, Templeton agreed to speak with an

agent and disclosed that there were three baggies of methamphetamine in a tin in his

bedroom. Agents found the baggies, which weighed approximately 1.8 grams and field

tested positive for methamphetamine. Id.; Addendum to PSR at 1.

       Agents also found two loaded semi-automatic rifles between the mattress and box

spring in Templeton’s bedroom. PSR ¶¶ 7–8. One of the rifles had a sawed-off barrel

and lacked registration. Id. ¶ 8.

       A federal warrant was issued for Templeton’s arrest and he was arrested on May

4, 2016. Id. ¶ 10. Templeton pleaded guilty to a one-count Information filed in the

United States District Court for the District of New Mexico, charging Templeton with

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and

§ 924(a)(2). PSR ¶¶ 1–2.

                                             2
       According to USSG § 2K2.1, a violation of 18 U.S.C. § 922(g)(1) yields a base

offense level of 20 when the defendant is a prohibited person who possessed a sawed-off

rifle. PSR ¶ 15; see also USSG §§ 2K2.1(a)(4)(B)(i)(II) and (ii)(I). The presentence

report included an enhancement to Templeton’s base offense by four levels because “the

defendant possessed two rifles in connection with his possession of approximately 1.8

grams of methamphetamine.”1 PSR ¶ 16; see also USSG § 2K2.1(b)(6)(B). The offense

level was decreased by a total of three levels because Templeton demonstrated

acceptance of responsibility for the offense and assisted the investigation “by timely

notifying the authorities of the intention to enter a plea of guilty.” PSR ¶¶ 22–23; see

also USSG § 3E1.1. Based on a total offense level of 21 and a criminal history category

of III, the imprisonment range under the USSG was forty-six to fifty-seven months. PSR

¶ 82; USSG Ch. 5, Part A.

       On January 6, 2017, Templeton filed an objection to paragraph sixteen of the

presentence report, which stated that Templeton “possessed two rifles in connection with

his possession of approximately 1.8 grams of methamphetamine,” PSR ¶ 16, on the

grounds that he did not possess methamphetamine. He asserted that the substance was

not confirmed to be methamphetamine and that it belonged to his girlfriend. R. on

Appeal, Vol. I, Def.’s Objection to PSR (Doc. 27) at 1–2. Templeton objected to the

government’s four-level enhancement under USSG § 2K2.1(b)(6)(B) on this basis,


       1
         Section 2K2.1(b)(6)(B) prescribes a four-level enhancement if the defendant
“used or possessed any firearm or ammunition in connection with another felony offense;
or possessed or transferred any firearm or ammunition with knowledge, intent, or reason
to believe that it would be used or possessed in connection with another felony offense.”
                                             3
contending that the offense level should be 17, which would result in a sentence of thirty

to thirty-seven months. Id. at 9 n.1. Templeton requested a thirty-month sentence. Id.

       The government responded to Templeton’s objection, asserting that the four-level

enhancement was appropriate because methamphetamine was packaged for distribution

and two rifles were found in Templeton’s bedroom. R. on Appeal, Vol. I, Govt.’s Resp.

to Def.’s Objection to PSR (Doc. 28) at 2.

       At the sentencing hearing on May 22, 2017, Templeton challenged the

government’s failure to obtain a lab report identifying the substance contained in the

baggies found in Templeton’s bedroom and contended that there was no proof that the

baggies contained methamphetamine. R. on Appeal, Vol. III, Tr. at 3:8–9, 15–20; 4:14–

5:7. Templeton’s counsel asserted that the four-level enhancement should not apply

because the government did not establish that there was methamphetamine in

Templeton’s home. Id. at 3:10–20. After hearing this argument, the court stated that it

would not add the four-level enhancement. Id. at 5:22.

       The government then offered the sale of marijuana to the confidential informant

the day before Templeton’s arrest as an alternative basis for the four-level enhancement.2

The court indicated that it agreed with the government’s argument. Id. at 6:12.

       Counsel for Templeton objected, stating:



       2
           The government stated, “a controlled buy was done at [Templeton’s] residence
for marijuana the day before the search warrant was executed. . . . So even if
[Templeton’s counsel] takes issue with the fact of whose methamphetamine it was, . . .
there’s also the independent basis of the prior controlled purchase.” R. on Appeal, Vol.
III, Tr. at 5:25–6:11.
                                             4
       [C]ertainly he wasn’t charged with possession with intent to distribute
       marijuana. He wasn’t charged with any sale of marijuana. No marijuana
       was recovered here. So the connection suggesting that a marijuana sale
       from the day before is tenuous when the issue here is, we objected to the
       issue of the government saying it’s a controlled substance, and that being
       meth, and we’re saying it’s not.

Id. at 6:15–21. The court was not persuaded by the objection. Id. at 6:24–25.

       The court imposed a sentence of forty-six months in custody with two years of

supervised release. Id. at 13:2–8. The district court entered a judgment and Templeton

filed a timely notice of appeal. R. on Appeal, Vol. I, Docs. 34, 35.

       On appeal, Templeton contends that the government did not present sufficient

evidence that the firearms were possessed “in connection with” the sale of marijuana to

support the application of § 2K2.1(b)(6)(B). Aplt. Br. at 6. In particular, Templeton

argues that the government did not show that the firearms were in “close proximity” to

the marijuana sale. See Application Note 14(B)(ii) to § 2K2.1. The government argues

that Templeton failed to raise the argument that there was insufficient evidence to support

the application of that enhancement in district court. Aple. Br. at 4. Specifically, the

government asserts that Templeton “raised no issue regarding the location of the firearms

in relation to the marijuana sale at Templeton’s residence or the potential for the firearms

to facilitate the drug transaction.” Id. at 3. We agree, and therefore conclude that

Templeton waived the argument.

                                             II.

       We generally review issues on appeal that were not raised in district court for plain

error. United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016). However, we


                                             5
decline to review for plain error factual issues regarding the application of the U.S.

Sentencing Guidelines that were not raised before the district court. United States v.

Deninno, 29 F.3d 572, 580 (10th Cir. 1994). As we explained in Deninno, a factual

challenge regarding the application of the guidelines that was not raised before the trial

court at sentencing “acts as an admission of fact” and is waived for appeal. Id. at 580.

The rationale behind this approach 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. On the other hand, when a defendant fails to raise the issue below, we have

no factual record by which to review the application of the guidelines.” United States v.

Saucedo, 950 F.2d 1508, 1518 (10th Cir. 1991), overruled on other grounds by Stinson v.

United States, 508 U.S. 36 (1993); see also United States v. Bass, 411 F.3d 1198, 1208

(10th Cir. 2005) (Tymkovich, J., concurring in part and dissenting in part) (noting that

where a defendant has failed to make a factual challenge before the district court, “we do

not have a sufficient record to evaluate the accuracy of the district court’s determination

of those facts. This is precisely the concern that has in the past led the court to decline to

review factual sentencing claims for plain error.”). Thus, a failure to raise a factual

challenge before the trial court at sentencing prevents the development of the record on

the particular factual issue in question, precluding review. That is what occurred in this

case.

        Templeton argues that he did in fact raise the issue of the physical proximity

between the marijuana and the firearms in the district court. In particular, he points to the

objection that was made by his counsel at the sentencing hearing, which stated, “the

                                              6
connection suggesting that a marijuana sale from the day before is tenuous when the issue

here is, we objected to this issue of the government saying it’s a controlled substance, and

that being meth, and we’re saying that it’s not.” R. on Appeal, Vol. III, Tr. at 6:17–21.

Before this court, Templeton focuses on the word “tenuous,” suggesting that the term

raised the issue of physical proximity between the marijuana and the firearms. However,

that term cannot bear the weight that Templeton places on it.

       The context of the objection was that the district court had agreed with Templeton

that the methamphetamine could not serve as a basis for a sentencing enhancement under

§ 2K2.1(b)(6)(B). When the government asserted that the sale of marijuana to the

confidential informant the day before Templeton’s arrest could serve as an alternative

basis for the application of the enhancement, Templeton argued that the marijuana could

not serve that purpose because the buy and the search did not occur on the same day.

Thus, when Templeton referred to the “tenuous” connection, he was referring to a

temporal relationship between the marijuana sale and the discovery of the firearms, rather

than a spatial connection between the two. The issue of the physical proximity between

the location of the marijuana sale and the firearms was never brought to the district

court’s attention.

       Templeton’s failure to raise an objection to the sentencing enhancement in the

district court based on the physical proximity of the firearms to the marijuana sale

prevented the district court from addressing the factual dispute and, as a result, the record

is not developed on this issue on appeal. At oral argument, for example, a key factual

dispute involved whether the presentence report’s reference to the marijuana sale taking

                                              7
place “at his residence” established that the drug sale took place inside Templeton’s

residence, or instead, on the porch or in the driveway of Templeton’s residence. The

district court was deprived of the opportunity to resolve the meaning of “at his residence”

because the factual dispute was not raised at the sentencing hearing. Because Templeton

did not raise the issue of the physical proximity or connection between the firearms and

the marijuana sale before the district court, he waived his right to raise this issue on

appeal, and we therefore do not reach the merits of his challenge.

                                             ***

       For the reasons stated above, we AFFIRM the district court’s application of the

four-level sentencing enhancement pursuant to USSG § 2K2.1(b)(6)(B).


                                               Entered for the Court



                                               Allison H. Eid
                                               United States Circuit Judge




                                              8
