Appellant waived procedural challenge to sentence by withdrawing objection to facts in PSR
United States v. Carter, 2019 WL 5541357 (10th Cir. October 28, 2019) (WY - published): The panel finds that by withdrawing his factual objections to the PSR in the district court, Carter waived his procedural reasonableness challenge to the district court’s sentence on appeal. His sentencing issue therefore, is not subject to appellate review. Waiver, the panel explained, is the intentional relinquishment or abandonment of a known right. By comparison, forfeiture, is the failure to make a timely assertion of a right. Generally, waived issues will not be reviewed on appeal but forfeited issues can be under the plain error standard.
Carter pleaded guilty to being a felon in possession of a firearm and manufacturing counterfeit notes. The Presentence Report (PSR) cross-referenced to the drug guidelines under USSG § 2K2.1 based on information from an informant. Carter objected to the cross-reference. He argued the informant’s proffer was insufficient to support a finding by a preponderance that he was responsible for trading guns for methamphetamine because the proffer was uncorroborated and not given under oath in a judicial proceeding. The court ordered an evidentiary hearing to address the informant’s credibility. However, before the hearing defense counsel was given information that supported the informant’s credibility. Carter then withdrew his objections to the PSR. The court adopted the PSR’s findings and offense level calculations and sentenced Carter to a prison term of 84 months.
On appeal Carter reiterated the arguments made in district court. He said the only evidence supporting the cross-reference was the informant’s proffer. The panel found that Carter waived his procedural challenge to the factual basis for the cross-reference. It also noted that generally, it will not review a challenge to the district court’s factually dependent sentencing determinations if that challenge was either waived (affirmatively withdrawn/rejected), as it was here, or simply forfeited (not raised). The panel reasoned that such actions by the accused deprive it of "any meaningful opportunity to evaluate the accuracy of the district court’s factual determinations."
Carter pleaded guilty to being a felon in possession of a firearm and manufacturing counterfeit notes. The Presentence Report (PSR) cross-referenced to the drug guidelines under USSG § 2K2.1 based on information from an informant. Carter objected to the cross-reference. He argued the informant’s proffer was insufficient to support a finding by a preponderance that he was responsible for trading guns for methamphetamine because the proffer was uncorroborated and not given under oath in a judicial proceeding. The court ordered an evidentiary hearing to address the informant’s credibility. However, before the hearing defense counsel was given information that supported the informant’s credibility. Carter then withdrew his objections to the PSR. The court adopted the PSR’s findings and offense level calculations and sentenced Carter to a prison term of 84 months.
On appeal Carter reiterated the arguments made in district court. He said the only evidence supporting the cross-reference was the informant’s proffer. The panel found that Carter waived his procedural challenge to the factual basis for the cross-reference. It also noted that generally, it will not review a challenge to the district court’s factually dependent sentencing determinations if that challenge was either waived (affirmatively withdrawn/rejected), as it was here, or simply forfeited (not raised). The panel reasoned that such actions by the accused deprive it of "any meaningful opportunity to evaluate the accuracy of the district court’s factual determinations."
posted by Anonymous at 3:00 PM
<< Home