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This order and judgment is not binding precedent, except under the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
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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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