CA10: Affirmative withdrawal of challenge to presentence report is a waiver

Defendant, Brice Ashton Carter, was convicted of possessing a firearm as a felon. A confidential informant told federal agents that Carter had used two firearms as payment for some methamphetamine. Relying on the informant’s statements, the presentence investigation report applied a Sentencing Guidelines cross-reference, which resulted in an increase in Carter’s offense level.

Carter challenged the factual basis for the confidential informant’s statements on appeal, but in United States v. Carter (opinion by Judge McKay) the Tenth Circuit affirmed. While Carter had originally raised this objection in the district court, he affirmatively withdrew it there. Unsurprisingly, the Court concluded that this was a waiver.

Even if Carter had merely forfeited his claim, rather than waived it, plain error review did not apply, because under that standard, an appellate court does not review a district court’s factual findings in a sentencing proceeding.

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