                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         OCT 28 2003
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                              No. 02-3226
                                               (D. Ct. No. 00-CR-40024-11-SAC)
 SHANE ALLEN NEWMAN,                                        (D. Kan.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, MCKAY and MCCONNELL, Circuit
Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Shane Allen Newman, on direct appeal, moves to

remove the U.S.S.G. § 2D1.1(b)(1)      two-level sentence enhancement and remand


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
for resentencing. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742. Because we find that Mr. Newman waived this argument by

failing to object to the sentence enhancement before the district court, we DENY

this motion.

      Mr. Newman pleaded guilty to one count of violating 21 U.S.C. § 846,

conspiring to distribute more than a kilogram of methamphetamine. Specifically,

Mr. Newman admitted that he “conspired with Shane Wright to have him deliver

methamphetamine to me to sell.” On January 26, 2000, a Missouri Highway

Patrol trooper stopped Mr. Wright, a defendant in a related proceeding, for a

traffic violation and discovered a bag containing methamphetamine and a semi-

automatic handgun. Three days after Mr. Wright’s arrest, Mr. Newman

telephoned him and asked why he was “cruising with the firepower man[,]” to

which Mr. Wright responded, “Well, you know me, surprises all the time.”

      Based on the trooper’s discovery and this conversation, the probation

officer in Mr. Newman’s presentence report recommended a two-level sentence

enhancement for possession of a dangerous weapon pursuant to U.S.S.G. §

2D1.1(b)(1). At his May 22, 2002, sentencing hearing, the district court accepted

this sentence enhancement and sentenced him to a 105-month prison term. Mr.

Newman did not object in the district court to the facts underlying the sentence

enhancement or to the sentence enhancement itself. Mr. Newman filed his notice


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of appeal on June 18, 2002, four days after the deadline proscribed by Fed. R.

App. P. Rule 4(b)(1)(A)(i) but within the thirty-day extension period of Fed. R.

App. P. Rule 4(b)(4), which the district court granted.

      On appeal, Mr. Newman challenges the two-level enhancement to his

sentence based on Mr. Wright’s firearm possession. Though neither party to this

appeal contends that Mr. Newman possessed or used a firearm personally in

furtherance of his crime, the Sentencing Guidelines “permit sentencing courts to

attribute to a defendant weapons possessed by his codefendants if the possession

of weapons was known to the defendant or reasonably foreseeable by him.”

United States v. McFarlane , 933 F.2d 898, 899 (10th Cir. 1991). Mr. Newman

admits both that Mr. Wright had a handgun in Mr. Wright’s car during his arrest

and that he had a phone conversation with Mr. Wright concerning the firearm. As

conceded by Mr. Newman, “[t]he district court’s finding concerning foreseeability

is a factual finding reviewable under a clearly erroneous standard.” Thus, we

would normally affirm the district court’s § 2D1.1(b)(1) sentence enhancement so

long as this factual finding was not clearly in error.

      In this instance, however, we do not reach the clearly erroneous test,

because Mr. Newman failed to object to the presence of the § 2D1.1(b)(1)

sentence enhancement recommendation in the presentence report or to its use

during sentencing. “[F]ailure to object [prior to appeal] generally precludes


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review except for plain error.”      United States v. Svacina , 137 F.3d 1179, 1187

(10th Cir. 1998). Furthermore, when a factual dispute concerning the

applicability of a particular guideline is not brought to the attention of the district

court, we consider the issue waived and will not find plain error.         United States v.

Overholt , 307 F.3d 1231, 1253 (10th Cir. 2002).

       Mr. Newman asserts that his failure to object at sentencing does not result

in waiver because “the underlying facts are not in dispute, and the question is

really whether those facts come within the ambit of the guideline . . . [and thus] is

one of law . . . .” This assertion misconstrues the distinction between factual and

legal disputes.

       As stated above, the law is clear regarding application of a § 2D1.1(b)(1)

sentence enhancement when a codefendant possesses a firearm in conjunction

with the charged crime. Mr. Newman does not contest this law. Instead, he

objects to the factual finding of the district court that possession of the firearm by

Mr. Wright was known or reasonably foreseeable by Mr. Newman. Mr.

Newman’s appeal, therefore, represents exclusively a factual dispute regarding

the foreseeability, or his knowledge, of Mr. Wright’s firearm possession.          See,

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

(“Defendant’s knowledge or lack thereof [of a codefendant’s possession of a

firearm] is a factual issue”),    overruled on other grounds by      Stinson v. United


                                              -4-
States , 508 U.S. 36 (1993). “This court has held repeatedly that factual disputes

not brought to the attention of the [district] court do not rise to the level of plain

error.” Svacina , 137 F.3d at 1187.

       For these reasons, we DENY Mr. Newman’s appeal, finding that his failure

to object to his sentence enhancement under U.S.S.G. § 2D1.1(b)(1) at sentencing

precludes review by this court.

                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Chief Circuit Judge




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