Summary
The Tenth Circuit affirmed a felon-in-possession conviction, holding that the defendant waived his sufficiency-of-the-evidence challenge to the “in furtherance” element of 18 U.S.C. § 924(c) by failing to raise that specific ground in his Rule 29 motion for judgment of acquittal and by not arguing for plain-error review in his opening brief. The court declined to exercise its discretion to review the forfeited claim under the plain-error standard because the defendant raised plain error for the first time in his reply brief, the government opposed the argument, and the defendant was represented by counsel. This case illustrates the distinction between forfeiture and waiver in appellate review and the requirement that an appellant must both preserve specific sufficiency arguments in the district court and properly invoke plain error on appeal.
Topics
Practice areas
Questions Presented
- Whether the defendant's challenge to the sufficiency of the evidence for his conviction under 18 U.S.C. § 924(c)(1)(B)(i) is preserved for appeal.
- Whether the court should review the claim for plain error when the defendant failed to argue plain error in his opening brief.
Holdings
- The defendant's challenge is waived because the argument on appeal (insufficient nexus between the shotgun and drug trafficking) differs from the argument made in the district court motion for judgment of acquittal (inoperability of the shotgun), and the defendant failed to argue for plain error review in his opening brief.
Key quotations
“But here the Government argues Defendant failed to preserve his challenge because he does not raise the same argument on appeal as he did in moving for a judgment of acquittal before the district court.” (at 4)
“When a party fails to raise an argument below, we typically treat the argument as forfeited.” (at 5)
“By contrast, when a party intentionally relinquishes or abandons an argument in the district court, 'we usually deem it waived and refuse to consider it.'” (at 5)
“Because Defendant failed to preserve his argument for review on appeal, we ordinarily would review his insufficient-evidence claim under our rigorous plain-error standard.” (at 8)
“Under Rule 52(b) and our precedents, we have discretion to review Defendant's challenge to the sufficiency of the evidence despite his failure to argue for plain error in his opening brief.” (at 9)
“In sum, we conclude Defendant waived his insufficient-evidence claim by failing to argue for plain error in his opening brief.” (at 12-13)
Factual background
On January 5, 2018, police observed a stolen Ford Escape. The driver, Kevin Dewayne Leffler, exited the vehicle and walked to a disabled truck. Officers approached and detained Leffler and others. A pistol was found on the ground, which Leffler admitted owning. An inventory search of the Escape revealed a duffel bag with magazines, ammunition, grenades, approximately 42 grams of methamphetamine, scales, baggies, and five long guns, including a modified short-barreled shotgun. Leffler stated everything in the vehicle belonged to him.
Procedural history
Defendant was convicted by a jury on multiple counts. He moved for a judgment of acquittal at trial on the ground that the government failed to show the shotgun was operable. The district court denied the motion. On appeal, he argues insufficient evidence as to the nexus between the shotgun and drug trafficking. The Tenth Circuit found the argument waived because it was not raised below and defendant did not argue plain error in his opening brief, and affirmed.