McCONNELL, Circuit Judge.
Ricardo Zubia-Torres was convicted, pursuant to a guilty plea, of one count of
On June 9, 2007, Mr. Zubia-Torres was arrested by United States Border Patrol agents in Las Cruces, New Mexico. Mr. Zubia-Torres previously was deported in 2001. Prior to his deportation on that occasion, he had been convicted of violating section 453.3385 of the Nevada Revised Statutes, which prescribes a penalty for "trafficking in controlled substances." Mr. Zubia-Torres's pre-sentencing report ("PSR") indicated that his prior offense, which occurred nine years previously, involved 26.9 grams of methamphetamine. Treating this prior conviction as a felony conviction for a "drug trafficking offense" within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(i), the PSR recommended that Mr. Zubia-Torres receive a sixteen-level enhancement atop the base offense level of eight for his reentry offense. Because Mr. Zubia-Torres received a three point reduction for demonstrating acceptance of responsibility under U.S.S.G. § 3E1.1, the PSR recommended his advisory guidelines sentence be calculated based on a total offense level of twenty-one.
At sentencing, the district court adopted the PSR's calculation of Mr. Zubia-Torres's guidelines range and imposed a sentence of forty-one months, at the low end of the guidelines range of forty-one to fifty-one months. On appeal, with new counsel, Mr. Zubia-Torres argues that his Nevada conviction was not a "drug trafficking offense" within the meaning of § 2L1.2(b)(1)(A)(i).
II. STANDARD OF REVIEW
We must first address two issues regarding standard of review: first, whether defense counsel's acquiescence in the PSR guideline calculation constituted a waiver of the right to raise this issue on appeal, as opposed to a mere forfeiture, which would lead to plain error review; and second, whether Mr. Zubia-Torres's own comments during allocution were sufficient to preserve the issue for appeal on a de novo basis.
A. Waiver or Forfeiture
Pointing to an exchange between defense counsel and the court during sentencing, the government contends that the defendant waived his right to challenge the imposition of a sixteen-level enhancement on appeal. When the court asked defense counsel whether she had anything to state on "—the 16 le[vel]—or the offense calculation or his criminal history score," counsel responded: "Your Honor, the offense was correctly calculated by Probation. Our issue is whether or not it's a Booker issue." Tr. 4. The Government argues that this response was an "intentional" and
The defendant argues that we should, at most, treat counsel's failure to object as a forfeiture, subject to plain error review. See Teague, 443 F.3d at 1314 (holding that in cases of forfeiture, the defendant may obtain appellate review on a plain error standard). We agree with the defendant.
Although it is true that counsel stated that "the offense was properly calculated by probation," this was said in the context of directing the court's attention to Mr. Zubia-Torres's primary argument at sentencing, seeking a variance. There is nothing in the record to suggest that counsel actually identified the issue related to Mr. Zubia-Torres's sentencing enhancement and either invited the court to make the particular error or abandoned any claim that the enhancement did not apply. Rather, we think counsel was merely indicating that she was not raising a sentencing calculation issue and attempting to draw the court's attention instead to the issue she had briefed in her sentencing memorandum. See Sent. Tr. 4. The record suggests that counsel did not "consciously cho[o]se to forego" the argument, United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006), but rather that she failed to recognize the argument and instead agreed to the PSR's calculation of the sentence. Accordingly, we will review Mr. Zubia-Torres's claim for plain error.
Because there is some uncertainty in our cases regarding the difference between waiver and forfeiture,
Our cases demonstrate the distinction. We begin with this Court's unanimous en banc decision in United States v. Haney, 318 F.3d 1161 (10th Cir.2003) (en banc)
This case is similar. In both cases, in the course of pursuing a particular theory of the defense, counsel told the court that the defense was not raising another, closely related issue. (In Haney, counsel made this statement repeatedly; in our case only once.) But in neither was there any evidence that counsel had deliberately considered the unraised issue and made an intentional decision to forego it. Counsel simply was focused on another theory.
This case is also strikingly similar to United States v. Arviso-Mata, 442 F.3d 382 (5th Cir.2006) (Higginbotham, J.). There, counsel made a Blakely objection to sentencing on the basis of judge-found facts. When the court asked if there were any objections to the PSR, counsel answered that he had made a Blakely objection but "[o]utside of that, Your Honor, we have no objections to the PSR." Id. at 383. On appeal, the defendant sought to argue that the district court plainly erred in assessing two criminal history points for a misdemeanor more than ten years old. As in our case, the government argued that the issue had been waived and not merely forfeited. The Fifth Circuit rejected the government's argument, explaining: "There is no evidence, here, that counsel knew of the sentencing guidelines issue and that he consciously chose to forego it. The government's only evidence of waiver is counsel's statement that, other than the Blakely objection, he had no problem with the PSR. This statement, alone, is insufficient to establish that Arviso's counsel abandoned a known right." Id. at 384. The court therefore reviewed the issue for plain error.
This case is virtually on all fours with Arviso-Mata. In both cases, defense counsel lodged a Sixth Amendment challenge to the sentencing procedure, and on inquiry from the court expressly stated that he had no objection to the PSR calculation. In neither case was there any evidence that the defense considered the issue later raised on appeal, and thus no
Haney and Arviso-Mata may be contrasted to decisions by this court finding waiver, not forfeiture. In United States v. Carrasco-Salazar, 494 F.3d 1270 (10th Cir.2007), defense counsel filed a written objection to a PSR recommendation of a 16-level enhancement for a prior crime of violence. In response, the probation officer filed an addendum to the PSR and the government produced an additional document supporting application of the enhancement. The defense did not respond. At the sentencing hearing, the district court asked counsel if the objections to the PSR had been resolved, and defense counsel answered: "Yes, your honor." Id. at 1272. When the defendant sought to "resurrect" the enhancement issue on appeal, this court concluded that the issue had been waived, and not merely forfeited. The court did not rely solely on counsel's answer to the court, but looked to "the sequence of events" to determine whether the purported waiver was "knowing and voluntary." Id. at 1273. The Court answered this question in the affirmative, explaining: "There can be no clearer `intentional relinquishment or abandonment of a known right,' Olano, 507 U.S. at 733, 113 S.Ct. 1770, than when the court brings the defendant's prior objection to his attention, asks whether it has been resolved, and the defendant affirmatively indicates that it has[.]" Id. In support of its conclusion, the Court cited two cases from other circuits, United States v. Denkins, 367 F.3d 537, 543 (6th Cir.2004), and United States v. Thompson, 289 F.3d 524, 527 (8th Cir.2002). In both of them, defense counsel first raised an objection to the PSR and later explicitly "abandoned" or "withdrew" the objection.
Similarly, in United States v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir. 2008), the court found waiver, not forfeiture, when defense counsel first raised an issue and then affirmatively abandoned it. The defendant moved to suppress certain evidence, which the government claimed had been found in plain view. In a written pleading, the defendant argued that no facts were in dispute, but during the suppression hearing challenged the evidentiary basis for the government's plain view argument. The prosecutor responded that he thought the facts were undisputed but that the government could prove its position by testimony. Defense counsel neither contested the prosecutor's argument nor insisted that the testimony be heard. Accordingly, this Court found waived, the argument that the government had not proved that the contraband was in plain view. Defense counsel obviously knew of the issue. By his action, the defendant "affirmatively abandoned his challenge to the officers' testimony about the contraband and waived any claim on appeal." Id. at 1227.
In this case, by contrast, the defendant never made the argument that his prior conviction was not for a drug trafficking offense, and so he could not have "affirmatively abandoned" it. Defense counsel did not decline a government offer to submit documentation of the nature of the offense; no one ever suggested it was necessary. The record is simply devoid of any evidence that defense counsel knew of the argument or considered making it. We will not presume a waiver or infer one from a record as sparse as this. We do not suggest that waiver can be found only when an objection is made and then abandoned, or error invited, but we do hold, consistent with our precedents, that there must be some evidence that the waiver is "knowing and voluntary," beyond counsel's rote statement that she is not objecting to the PSR.
B. Whether the Issue Was Preserved On Allocution
For his part, the defendant argues that we should review his claim de novo on the basis of an argument that Mr. Zubia-Torres personally made during allocution. Aplt. Br. 12. There, Mr. Zubia-Torres stated through an interpreter: "[o]ne thing that you're not taking into account with the trafficking charge is that the amount was ridiculous, that I was more of a drug addict than a drug trafficker." Sent. Tr. 11. He asks us to treat this statement as a challenge to the conclusion that his prior conviction was for drug trafficking.
This Court has never held that a defendant's own statements during allocution are sufficient to preserve an issue regarding the proper calculation of the guidelines range. See FED.R.CRIM.P. 32(f)(1) (allowing parties to object to the PSR within fourteen days of receiving the report); id. at 32(i)(1)(D) (authorizing the court to allow parties, for good cause, to make new objections "at any time before sentence is imposed").
Even assuming, however, that a challenge by the defendant during allocution could, under certain circumstances, suffice to raise an issue before the sentencing court, Mr. Zubia-Torres's vague statement was insufficient to raise a genuine dispute regarding the enhancement. To say that he was "more of a drug addict than a drug trafficker" does not deny that he was both; and it is possible to be convicted of drug trafficking for sale of even a small quantity of methamphetamine. The legal issue, in any event, has to do with the breadth of the Nevada statute under which he was convicted and not with his actual conduct. We therefore reject the argument that we must review the propriety of the enhancement on a de novo basis.
III. THE SENTENCING ENHANCEMENT
When reviewing an issue for plain error, we will reverse the judgment below only if there is (1) error, (2) that is plain, which (3) affects substantial rights. United States v. Johnson, 414 F.3d 1260, 1263 (10th Cir.2005). If these three criteria are met, then we may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id. Because Mr. Zubia-Torres failed to present any evidence suggesting that imposition of the § 2L1.2 enhancement was ultimately inappropriate in his case, he cannot show that his substantial rights were affected by any error that may have been committed.
The Sentencing Commission defines a "drug trafficking offense" under § 2L1.2 as "an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import,
Had the defendant lodged a proper objection to the enhancement during the sentencing proceeding, the probation office and the government would have shouldered the burden of producing appropriate judicial documents to clarify the nature of Mr. Zubia-Torres's crime. "When the underlying statute reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the resulting ambiguity by consulting reliable judicial records, such as the charging document, plea agreement, or plea colloquy." United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir.2005). Because defense counsel conceded the correctness of the Guidelines calculation in the PSR, however, neither the probation officer, the government, nor the district court had occasion to seek production of the necessary documents. Even on appeal, the defendant offers no evidence that his conviction was for mere possession rather than sale.
As a result, even if we regard the district court's ruling on the enhancement issue as error, Mr. Zubia-Torres has failed to show that his substantial rights were affected. To satisfy this prong of plain error review, the defendant usually must show that the error "affected the outcome of the district court proceedings." United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005). This is also the case when the error occurs during sentencing. Id. at 733. Importantly, "a defendant appealing [his] sentence who failed to timely object to [an] alleged error bears the burden of proving prejudice under plain error analysis." Id. (quoting United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)). Here, if appropriate documents showed that Mr. Zubia-Torres's conviction was for a drug trafficking offense, then the § 2L1.2 enhancement would properly apply, notwithstanding any legal error in the sentencing judge's approach. By failing to present any evidence that relevant documents would indicate his conviction was not for drug trafficking, the defendant has failed to meet his burden under the third prong of plain error review.
This conclusion finds support in United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir.1998). In Svacina, the sentencing court applied the wrong version of the Sentencing Guidelines. The manual in effect at the time of the offense distinguished between two types of methamphetamine and placed the burden on the
For the foregoing reasons, we