The panel said a defendant challenging a firearm-related sentencing enhancement showed error over a marijuana-possession predicate, but not the kind of plain error needed to undo his 77-month sentence.
What happened
The Tenth Circuit affirmed Glen Delane Arnett Jr.'s 77-month sentence for unlawful possession of a firearm Tuesday, holding that a Guidelines challenge tied to marijuana found in a car failed under plain-error review.
Arnett was convicted of being a felon in possession of a firearm after Oklahoma City police stopped a vehicle he was driving, found him sitting on a loaded handgun and later discovered several ounces of marijuana in the car. The sentencing fight centered on a four-level enhancement for possessing a firearm in connection with another felony offense.
The district court applied the enhancement after treating Arnett's otherwise simple marijuana possession as a felony under 21 U.S.C. § 844 based on his prior Oklahoma drug convictions. Judge Rossman, writing for a panel that included Judges Bacharach and Murphy, said Arnett showed error on that point, but not plain error because he had not raised the argument in the district court.
The panel also rejected Arnett's alternative argument that the district court used the wrong legal standard when it found he constructively possessed the marijuana. Even assuming the standard was wrong, the court said the record supported intent to exercise dominion and control: Arnett was the sole occupant, the marijuana was significant in quantity, visible in a bag, close to him and the firearm, and he told an officer there was marijuana in the car.
In a concise bottom line, the court said the district court “did not plainly err in imposing § 2K2.1(b)(6)(B)’s four-point enhancement.” The ruling leaves intact the 77-month prison term and three years of supervised release.
The decision is most useful for sentencing practitioners as a plain-error case rather than a clean merits ruling on the marijuana predicate. The panel accepted that Arnett had identified an error, but the forfeiture posture and the record evidence prevented resentencing.