United States v. Carlton , 13 F. App'x 119 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4429
CARLOS EDDIE CARLTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-99-362)
Argued: June 7, 2001
Decided: July 2, 2001
Before NIEMEYER and TRAXLER, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Traxler and Senior Judge Beezer joined.
COUNSEL
ARGUED: Eric David Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Paul Alexander Weinman,
Assistant United States Attorney, Winston-Salem, North Carolina, for
Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,
2 UNITED STATES v. CARLTON
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Winston-Salem, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
NIEMEYER, Circuit Judge:
Carlos Eddie Carlton was convicted for possession of stolen fire-
arms, in violation of 18 U.S.C. §§ 922(j), and the district court sen-
tenced him to 108 months imprisonment. For the first time on appeal,
he challenges his sentence, contending that the district court erred in
enhancing his offense level on the ground that he possessed firearms
"in connection with another felony offense" — namely, his larceny of
the same firearms — under U.S.S.G. § 2K2.1(b)(5). Finding no plain
error, we affirm.
I
On October 15, 1999, Lieutenant Jim Mecum, an officer in the For-
syth County (North Carolina) Sheriff’s Department, was off-duty and
working on a house near his own residence when he spotted Carlton
carrying firearms and other items out of Mecum’s residence. Mecum
jumped into his pickup truck, drove to his house, and rammed Carl-
ton’s vehicle as he attempted to escape. Carlton then fled on foot. He
was apprehended minutes later by other Forsyth County deputies,
who found several items in Carlton’s possession, including a .45 cali-
ber pistol, .270 caliber rifle, and .30-.30 caliber rifle, which Carlton
admitted stealing from Mecum. Thereafter, Carlton pled guilty to pos-
session of stolen firearms, in violation of 18 U.S.C. §§ 922(j).
In connection with Carlton’s sentencing, the presentence investiga-
tion report recommended an offense level of 24 and a criminal history
UNITED STATES v. CARLTON 3
category of VI for a sentencing range of 100 to 120 months imprison-
ment. That recommendation was based in part upon the attribution of
a four-level offense level enhancement under U.S.S.G. § 2K2.1(b)(5)
for possession of a firearm "in connection with another felony
offense," which was either a State-law felony breaking and entering
or larceny offense relating to the theft of Mecum’s weapons. Carlton
made no objection to the presentence report, and the district court,
adopting the findings in that report, sentenced him to 108 months
imprisonment. This appeal followed.
II
Carlton’s principal argument on appeal is that the district court
erred when it enhanced his offense level for possession of the stolen
firearms "in connection with another felony offense" under U.S.S.G.
§ 2K2.1(b)(5). Because Carlton did not object during sentencing, our
review is for plain error, governed by Rule 52(b) of the Federal Rules
of Criminal Procedure. See United States v. Ford, 88 F.3d 1350, 1355
(4th Cir. 1996); United States v. Grubb, 11 F.3d 426, 440 (4th Cir.
1993).
Rule 52(b) represents a "careful balancing of our need to encourage
all trial participants to seek a fair and accurate trial the first time
around against our insistence that obvious injustice be promptly
redressed." United States v. Frady, 456 U.S. 152, 163 (1982). Accord-
ingly, the Rule strictly limits the authority of the appellate courts to
recognize unobjected-to error. See United States v. Olano, 507 U.S.
725, 731-37 (1993). Such error may be "noticed" only when it is
"plain," affects "substantial rights," id. at 732 (quoting Fed. R. Crim.
P. 52(b)), and "seriously affect[s] the fairness, integrity, or public rep-
utation of judicial proceedings," id. at 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
While perhaps not addressed as frequently as its companion prongs
in the Olano analysis, Rule 52’s requirement that the error be "plain"
remains significant. According to the Olano Court, when putative
errors were not brought to the district court’s attention in a timely
fashion, only "plain" errors — i.e., those that are "clear" or "obvious,"
at least at the time of appeal — merit appellate disruption of the final-
ity achieved by the criminal trial process. See Olano, 507 U.S. at 734
4 UNITED STATES v. CARLTON
(citing United States v. Young, 470 U.S. 1, 17 n.14 (1985); Frady, 456
U.S. at 163). This policy is shaped by at least two principles. First,
to encourage defendants to raise all relevant objections before the tri-
bunal that can most easily and efficaciously correct them, the
Supreme Court has admonished that Rule 52(b) is "to be used spar-
ingly, solely in those circumstances in which a miscarriage of justice
would otherwise result." Frady, 456 U.S. at 163 n.14 (citing United
States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980); United States
v. DiBenedetto, 542 F.2d 490, 494 (8th Cir. 1976)). Unless an error
is immediately "clear" or "obvious," those who would argue that the
error’s oversight was a "miscarriage of justice" face an uphill battle.
Second, the district courts play a critical role in the development of
unclear matters of federal criminal law. Absent the district courts’
consideration of difficult questions, appellate courts will be less cer-
tain that they have considered the full panoply of relevant arguments
and facts before reaching their own conclusions. Cf. Good News Club
v. Milford Cent. Sch., ___ U.S. ___, ___, 2001 WL 636202, at *22
(2001) (Souter, J., dissenting) ("[A]n issue as first conceived may
come to be seen differently as a case moves through trial and appeal;
we are most likely to contribute something of value if we act with the
benefit of whatever refinement may come through the course of litiga-
tion").
In this case, Carlton contends that the district court committed
plain error in determining that he possessed a firearm "in connection
with another felony offense," leading to a four-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(5). Carlton challenges two
aspects of that finding. First, arguing that the district court’s determi-
nation that he possessed the firearms in connection with the breaking
and entering and larceny was error, he asserts that the firearms did not
facilitate his breaking and entering or larceny of Mecum’s property.
Second, he contends that neither the breaking and entering nor the lar-
ceny constituted a separate felony offense from the offense of convic-
tion — possession of the stolen firearms.
With respect to the first point, Carlton notes that we have held that
a court may find that a firearm was used "in connection with" another
felony offense under § 2K2.1(b)(5) if the use or possession "facilitates
or has a tendency to facilitate the felony offense." United States v.
Garnett, 243 F.3d 824, 829 (4th Cir. 2001) (citing United States v.
UNITED STATES v. CARLTON 5
Nale, 101 F.3d 1000, 1003-04 (4th Cir. 1996)). He thus contends that
because the role of the firearms in the specified crimes was merely
fortuitous — i.e., he happened to pick up the first thing of value he
found in Mecum’s house — the district court could not have con-
cluded that the weapons were possessed "in connection with" the lar-
ceny and breaking and entering.
But Carlton’s very arguments suggest that the application of the
governing legal standard — whether the possession of a firearm facil-
itated or potentially facilitated the offense — turned largely upon the
specific factual nuances of this case, and the district court’s assess-
ment of those nuances is due substantial deference. See 18 U.S.C.
§ 3742(e); Buford v. United States, 121 S. Ct. 1276, 1279-81 (2001);
see also United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)
(noting that the district court is entitled to rely upon the facts alleged
in the presentence report). In addition, the Fifth Circuit has held that
in certain circumstances, the larceny of a firearm can constitute its
possession "in connection with" the larceny for the purposes of
§ 2K2.1(b)(5). See United States v. Armstead, 114 F.3d 504, 511-12
(5th Cir. 1997); United States v. Guerrero, 5 F.3d 868, 872 (5th Cir.
1993) ("‘[I]n connection with’ does not necessarily exclude possess-
ing the firearms as fruits of the crime the possessor is contemporane-
ously committing"); see also United States v. Szakacs, 212 F.3d 344,
349 (7th Cir. 2000) (stating that the court did "not necessarily dis-
agree with" this reasoning in Guerrero); cf. Garnett, 243 F.3d at 829-
30 (noting that the exchange of a firearm for drugs constitutes the
"use" of that firearm "in connection with" the drug sale under
§ 2K2.1(b)(5)). Following the reasoning adopted by the Fifth Circuit,
the district court could have determined that Carlton was emboldened
in his misdeeds by his possession of the firearms, prompting him to
steal more items than he otherwise would have, or that the firearms
had the potential to facilitate the crime or his escape. See Armstead,
114 F.3d at 511-12; Guerrero, 5 F.3d at 873.
Concededly, we do not know the district court’s precise findings on
this point (other than the general finding that the firearms were used
in connection with the larceny and breaking and entering), but this is
so only because Carlton did not raise this objection before the district
court. Because he failed to do so, Rule 52(b) requires that he show
not that the sentencing court’s calculation might have been problem-
6 UNITED STATES v. CARLTON
atic, but rather that it was error and the error is plain. And in light of
the precedent from our sister circuit and the lack of a clear statement
from us on the subject, see United States v. Neal, 101 F.3d 993, 998
(4th Cir. 1996) (noting that other circuit cases may be relevant to the
determination whether an error is plain), we cannot say that any error
in the district court’s determination that Carlton possessed the stolen
firearms "in connection with" the larceny is sufficiently plain to jus-
tify reversal.
The second prong of Carlton’s attack focuses on the language that
follows the "in-connection-with" language in § 2K2.1(b)(5) — i.e.,
"another felony offense." He points to a Sixth Circuit decision in
which the defendant, after stealing firearms from a pawn shop, was
convicted of transporting those stolen weapons, in violation of 18
U.S.C. § 922(i), and being a convicted felon in possession of the fire-
arms, in violation of 18 U.S.C. § 922(g)(1). See United States v. Sand-
ers, 162 F.3d 396, 397-98 (6th Cir. 1998). The government requested
the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) on the basis
that the defendant had possessed the firearms in connection with the
State-law burglary of the firearms. See id. at 398. The Sixth Circuit
rejected that request, reasoning that because the guideline contem-
plates the possession of the firearm in connection with another felony
offense, it implicitly requires "a finding of a separation of time
between the offense of conviction and the other felony offense, or a
distinction of conduct between that occurring in the offense of convic-
tion and the other felony offense." Id. at 400. Since the court found
that the State-law burglary and the subsequent possession and trans-
portation of the weapons arose "from the same conduct," it concluded
that the enhancement was inappropriate. Id.; accord Szakacs, 212
F.3d at 351. Carlton argues that because the facts in this case parallel
those in Sanders, the district court committed plain error in this case
when it found that at least one of the State-law crimes constituted a
felony offense separate from the federal crime of possession of a
stolen firearm.
Again, however, we fail to see how the error here, if any, was suffi-
ciently "clear" and "obvious" to warrant reversal under Rule 52(b).
The Fifth Circuit has adopted a rule directly contrary to the Sixth Cir-
cuit’s, holding that State-law burglary could constitute a felony
offense separate from theft of firearms from a licensed dealer in viola-
UNITED STATES v. CARLTON 7
tion 18 U.S.C. § 922(u), even though precisely the same acts gave rise
to liability for both crimes. See Armstead, 114 F.3d at 511-13. More-
over, two judges in the Sixth Circuit have voiced their disagreement
with the Sanders rule. See United States v. McDonald, 165 F.3d 1032,
1037-38 (6th Cir. 1999) (Wellford, J., concurring); Sanders, 162 F.3d
at 403-05 (Kennedy, J., concurring in part and dissenting in part).
And we have not expressed our opinion on this issue. Nor need we
do so here, for it is axiomatic that an error cannot be "clear" or "obvi-
ous" in this Circuit when neither we nor the Supreme Court have spo-
ken on the issue, and other circuits are split. See Neal, 101 F.3d at 998
(citing United States v. Alli-Balogun, 72 F.3d 9, 12 (2d Cir. 1995)).
Accordingly, we conclude that the district court did not commit plain
error when it enhanced Carlton’s offense level under U.S.S.G.
§ 2K2.1(b)(5).
III
Carlton’s counsel has also filed a brief pursuant to Anders v. Cali-
fornia, 386 U.S. 738 (1967), raising two additional objections. After
carefully reviewing the entire record in accordance with Anders, we
find no reversible error.
First, Carlton argues that the district court erred when it assessed
criminal history points under the Sentencing Guidelines for two of
Carlton’s juvenile convictions. But the Guidelines specifically pro-
vide that when a defendant is confined for at least 60 days as a result
of a juvenile conviction, two points must be added to the defendant’s
criminal history score "if the defendant was released from such con-
finement within five years of his commencement of the instant
offense." U.S.S.G. § 4A1.2(d)(2)(A). Carlton served six months and
18 days for the two juvenile convictions that were counted by the dis-
trict court, and he was released from confinement for both offenses
on September 26, 1996 — within five years of the commission of the
offense in this case in 1999. Accordingly, the district court did not err
when it added two points to Carlton’s criminal history score for each
of these convictions. See United States v. Daniels, 929 F.2d 128, 130
(4th Cir. 1991).
Second, Carlton argues that the district court erred when it chose
108 months as the appropriate amount of imprisonment within the
8 UNITED STATES v. CARLTON
guideline range. Because we have no jurisdiction to review a district
court’s decision to impose a particular amount of imprisonment
within the applicable range, we cannot reverse on this basis. See 18
U.S.C. § 3742(a); United States v. John, 935 F.2d 644, 648 n.5 (4th
Cir. 1991) (citing United States v. Porter, 909 F.2d 789, 794 (4th Cir.
1990)).
IV
For the reasons given, the judgment of the district court is
AFFIRMED.