United States v. Lowe

117 F.4th 1253

Opinion

Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 20, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-1156

SCOTT LOWE,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:20-CR-00326-WJM-1) _________________________________

Jason B. Wesoky, Member of the Tenth Circuit’s CJA Appellate Panel, Ogborn Mihm LLP, Denver, Colorado, for Defendant-Appellant.

Jess D. Mekeel, Assistant United States Attorney (Cole Finegan, United States Attorney, with him on the brief), United States Attorney’s Office, Denver, Colorado, for Plaintiff- Appellee. _________________________________

Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges. _________________________________

TYMKOVICH, Circuit Judge. _________________________________

Scott Lowe challenges his conviction for drug trafficking and unlawful

possession of a firearm. He contends that the government intruded on his Fourth

Amendment privacy rights when it searched a storage unit he was using in his Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 2

apartment building without permission from the manager. When Denver Police

Department officers searched the storage unit, they uncovered incriminating evidence

linking Mr. Lowe to drug trafficking crimes. Mr. Lowe moved to suppress the

evidence, claiming a possessory interest in the unit that required the officers to obtain

a search warrant first. The district court denied the motion.

We affirm. Mr. Lowe failed to establish a legitimate expectation of privacy in

the storage unit. Moreover, sufficient evidence supports his conviction, and we find

no legal error in sentencing.

I. Background

In 2014, Mr. Lowe pleaded guilty to possession of a firearm by a felon under 18

U.S.C. § 922(g)(1) and was sentenced to 48-months’ imprisonment, followed by three

years of supervised release. After serving his sentence, Mr. Lowe entered supervised

release under the supervision of Officer Buescher in September 2018. He eventually

moved into an apartment in Denver in August 2019.

Officer Buescher began receiving information from a confidential informant who

alleged that Mr. Lowe used a storage unit to hide narcotics and firearms. Because of the

informant’s unreliable history, Officer Buescher did not immediately act on the

information. When Officer Buescher eventually asked Mr. Lowe whether he had a

storage locker, Mr. Lowe denied it. Officer Buescher also contacted the building

management for Mr. Lowe’s apartment, who confirmed that Mr. Lowe did not rent one.

On December 2, 2019, Officer Buescher conducted an unannounced search of Mr.

Lowe’s apartment and cell phone. The search uncovered messages implying involvement

2 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 3

in narcotics trafficking, a search history related to a firearm, and a large plastic bag

containing hundreds of empty gelatin capsules in Mr. Lowe’s kitchen cabinet. On

February 24, 2020, during another compliance check, officers found a digital scale,

plastic baggies, a pill bottle, concentrated marijuana, a pill press, and Xanax pills in Mr.

Lowe’s apartment. Notably, Mr. Lowe’s four-year-old son pointed towards a storage

room on the seventh floor, exclaiming that “Daddy goes in there all the time.” Despite

Mr. Lowe’s denials, the officers searched a storage unit on the seventh floor but found no

evidence of criminal activity there.

Three days later, Officer Buescher received a tip that Mr. Lowe had hidden

narcotics and firearms in one of the first two storage units on the eighth floor of his

apartment. The informant also mentioned that Mr. Lowe’s associates intended to clear

out the storage unit. Indeed, earlier that day, Mr. Lowe—now incarcerated on unrelated

state charges—had called a friend from jail, instructing them to “clean out” a place where

“extra tools” were kept. Aple. Br. at 5–6. So the informant stated that time was of the

essence. Since Officer Buescher was out of town, he asked Denver Police Detectives

Ryan Roybal and Jose Diaz “to investigate the information” from the confidential

informant and to help search the storage unit. Reply Br. at 7–8. The Denver police and

the property manager entered the eighth-floor sprinkler room and saw several storage

units with “see-through” mesh or chain-link doors. Officer Buescher told the officers to

search the first or second unit on the right side of the sprinkler room. The unit had a

metal padlock and contained various items. Nonetheless, the property manager

confirmed that the unit should have been vacant and that “nobody should have access to

3 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 4

the units unless they were paying for them.” Aplt. Br. at 5. At the officers’ request, the

property manager consented to searching the unit and had the padlock cut.

Inside, the officers discovered: (1) a zipped suitcase containing a .40 caliber Kahr

handgun with a loaded magazine and an after-market grip; (2) a plastic bag with

suspected narcotics; (3) Xanax pills; (4) a Smith & Wesson box with a loaded 9-

millimeter magazine; (5) other ammunition; (6) vials of unknown substances; (7) a black

ski mask; (8) a black t-shirt with “Police” printed on it; (9) small plastic baggies with a

“smiley devil” logo; and (10) digital scales with white residue. (A forensic analysis later

showed that Mr. Lowe likely contributed to the DNA profiles on the handgun, t-shirt, and

ski mask. Aple. Br. at 6 n.1.). The officers also discovered other items directly

connected to Mr. Lowe: (1) a prescription; (2) correspondence; (3) a piece of paper with

Officer Buescher’s letterhead; (4) a prescription for his ex-wife; (5) a Social Security

card; (6) a passport; (7) and correspondence for his ex-wife’s brother. Following the

discovery of these items, Mr. Lowe was arrested and charged with possession with intent

to distribute MDMA, possession of a firearm in furtherance of a drug trafficking crime,

and possession of a firearm as a felon.

While incarcerated, Mr. Lowe made several incriminating admissions during jail

calls, discussing efforts to retrieve valuable items from the storage unit and referring to

firearms as “tools.” Aple. Br. at 8. In one call, a friend informed Mr. Lowe that he had

gone to retrieve some of Mr. Lowe’s valuables but found the area “tor[n] out” and

“ravaged.” Aple. Br. at 8. Mr. Lowe denied instructing anyone to go there, and the

friend assured him that the area was not marked off as evidence. In another phone call,

4 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 5

Mr. Lowe asked his wife whether she had the “two-toned one”—a description matching

the Kahr handgun contained in the suitcase. Aple. Br. at 8. His wife said she did not,

explaining that someone had “broke[n] into [their] storage unit.” Aple. Br. at 8. Mr.

Lowe told her to “chill out.” Aple. Br. at 8.

Mr. Lowe moved to suppress the evidence obtained from the storage unit because

the warrantless search violated his Fourth Amendment rights. The court denied the

motion, ruling that Mr. Lowe lacked standing to challenge the search because he did not

demonstrate a reasonable expectation of privacy in the contents of storage unit.

At trial, Mr. Lowe was convicted on all three counts, and sentenced to 123 months

in prison.

II. Discussion

Mr. Lowe presents four issues for appellate review.

First, he challenges the trial court’s denial of his motion to suppress, arguing that

Denver police obtained evidence from his cell phone and a storage locker during an

unconstitutional and warrantless search, violating his Fourth Amendment rights. Mr.

Lowe contends that the court erroneously found that he lacked standing to challenge

these searches.1

Second, Mr. Lowe contests the jury’s verdict and subsequent judgment of

conviction, arguing that the evidence presented at trial was insufficient to prove he

1 Mr. Lowe waived appellate review of the argument about the cell phone search because he never presented it to the district court in his suppression papers and, despite the government’s notice in its brief in response, Aple. Br. at 11–13, did not show good cause on appeal for failing to raise it below. See United States v. Burke, 5 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 6

possessed a firearm in furtherance of a drug trafficking crime. Mr. Lowe contends that

the government failed to demonstrate that the firearm was used to advance the drug

trafficking activities.

Third, Mr. Lowe challenges the reasonableness of his sentence, arguing that the

trial court erred in sentencing him for possession with intent to distribute both MDMA

and methamphetamine. He contends that the jury only convicted him of possession with

intent to distribute MDMA, and therefore, his sentence was improperly enhanced.

Fourth, and finally, Mr. Lowe argues that this Court should remand his case for

resentencing under Amendment 821 of the Reform Act, contending that his criminal

history level would be reduced from level V to level IV.

We address each in turn.

633 F.3d 984, 987–88 (10th Cir. 2011) (“[A] suppression argument raised for the first time on appeal is waived (i.e., completely barred) absent a showing of good cause for why it was not raised before the trial court.”).

6 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 7

A. Motion to Suppress

When reviewing a district court’s decision on a motion to suppress, we view

the record in the light most favorable to the prevailing party and accept the district

court’s findings of fact unless they are clearly erroneous. United States v. Johnson,

584 F.3d 995, 998 (10th Cir. 2009). We review de novo the ultimate legal conclusion

of whether a search was reasonable under the Fourth Amendment.

The Fourth Amendment protects “the right of people to be secure in their

persons, houses, papers, and effects against unreasonable searches and seizures.”

U.S. Const. amend. IV. To enforce the Fourth Amendment’s protections, the

Supreme Court has recognized that defendants in federal cases may move a district

court to exclude from trial evidence obtained through an unlawful search and seizure.

See, e.g., Simmons v. United States, 390 U.S. 377, 389 (1968).

To establish a protectable Fourth Amendment interest, a defendant must

demonstrate a “legitimate expectation of privacy” in the premises searched. Terrence

Byrd v. United States, 584 U.S. 395, 403 (2018) (citation omitted). “The test of

legitimacy is not whether the individual chooses to conceal assertedly ‘private’

activity. Rather, the correct inquiry is whether the government’s intrusion infringes

upon the personal and societal values protected by the Fourth Amendment.” United

States v. Ruckman, 806 F.2d 1471, 1474 (10th Cir. 1986) (quoting Oliver v. United

States, 466 U.S. 170, 182–83 (1984)). Indeed, a subjective expectation of privacy

does not warrant Fourth Amendment protection “unless society is prepared to accept

7 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 8

that expectation as objectively reasonable.” California v. Greenwood, 486 U.S. 35,

39–40 (1988).

We therefore assume—without deciding—a point neither party disputes: Mr.

Lowe’s subjective expectation is not the dispositive issue here.2 The question is

whether Mr. Lowe established an expectation of privacy in the storage facility that

the public would consider objectively reasonable under the circumstances of this

case. See Ruckman, 806 F.2d at 1472.

1. Legal Framework — Objective Reasonableness

“Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’

necessarily entails a balancing of interests.” Hudson v. Palmer, 468 U.S. 517, 527

(1984). Two sets of interests are at play here. The first is Mr. Lowe’s unauthorized

use of the apartment building’s storage unit. The second is the government’s interest

in ensuring compliance with the conditions of supervised release and the releasee’s

interest in maintaining privacy. We begin with the former.

2 Both parties agree that the Court can address the objective component of the legitimate expectation of privacy analysis without needing to resolve the subjective component. Compare Aple. Br. at 19 (“This Court can bypass the subjective prong of the expectation of privacy analysis and address the objective prong.”) (citing Ruckman, 806 F.2d at 1472; with Aplt. Br. at 30 (“[M]any courts do not distinguish between the subjective expectation and social recognition prongs ‘and little attention has been given to the independent significance of the first factor or to precisely how it is to be interpreted.’”)); and Reply Br. at 11 (“[T]his Court can and should assume Mr. Lowe ‘entertained a subjective expectation of privacy’ even without a statement from him ‘that he had any subjective expectation of privacy.’”) (quoting Ruckman, 806 F.2d at 1472). See also Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. CHI. L. REV. 113 (2015).

8 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 9

The Supreme Court has recognized that the “unlicensed use of property by

others is presumptively unjustified.” Oliver, 466 U.S. at 184 n.15. Moreover, the

Supreme Court’s holding in “Rakas makes clear that wrongful presence at the scene

of a search would not enable a defendant to object to the legality of the search.”

Byrd, 584 U.S. at 409 (quoting Rakas, 439 U.S. at 141 n.9) (internal quotation marks

omitted). Supreme Court jurisprudence thus “strike[s] the balance in favor,” Hudson,

468 U.S. at 527, of preventing unlicensed or wrongful use of other’s property—uses

the public would generally not consider objectively reasonable.

Our longstanding precedents reflect these principles. In United States v.

Ruckman, 806 F.2d 1471 (10th Cir. 1986), for example, we held that a trespasser on

federal land had no possessory interest in a cave he was apparently living in. We

explained that the government had “the rights of an ordinary proprietor”—to

maintain its possession and to prosecute trespassers—concerning its “own” lands,

while the defendant was a “trespasser” subject to “immediate ejectment.” Id. at

1472–73. We therefore concluded that the defendant’s subjective expectations were

“not reasonable” since he could be “ousted” by the government “at any time.” Id. If

individuals have “no legal right” to occupy the land and build on it, their completed

actions do not establish a reasonable expectation of privacy, even if they own the

structures they built. Id. (citing Amezquita v. Hernandez-Colon, 518 F.2d 8, 12 (1st

Cir. 1975)).

Similarly, in United States v. Jones, 213 F.3d 1253, 1260 (10th Cir. 2000), we

rejected an argument that an occupant had a protectable privacy interest in a condo

9 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 10

room he was not authorized to use. In analyzing whether the defendant could assert

Fourth Amendment standing, we assumed that the defendant had a subjective

expectation of privacy. But we concluded that the defendant’s subjective expectation

was not one society was prepared to recognize as reasonable. Id. In reaching this

conclusion, we focused on the fact that the defendant “did not [get] and would not

[have gotten] permission” from the owner to enter the premises. Id. at 1260.

Consequently, the defendant’s “presence” was both unauthorized—“contrary to the

[owner’s] contingent permission”—and “unlawful.” Id. Therefore, despite the

defendant’s subjective expectations, we held that society was not prepared to

recognize the occupancy as reasonable under these circumstances.3

Finally, in United States v. Johnson, 584 F.3d 995 (10th Cir. 2009), we

evaluated whether an individual could legitimately expect privacy in a storage unit

rented using a stolen identity. In that case, the defendant instructed his girlfriend to

rent a storage unit under a false identity. After the pair were later arrested, police

officers contacted the identity theft victim. She later confirmed to the police that she

had not rented the unit and agreed to its search. When the victim, the detective, and

the manager of the facility arrived at the unit, they found it “secured by a heavy-duty

3 Id. (first citing United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991); then citing United States v. Cassell, 542 F.2d 279 (5th Cir. 1976) (concluding that the defendant could not assert standing because his unauthorized entry, contrary to the owner’s instructions, were done to evade law enforcement and conceal the fruits of illegal activities thus could not confer legitimate standing)).

10 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 11

lock.” Id. at 998. The manager of the facility permitted the detective to open the unit

by cutting the latch. Once inside, the detective discovered contraband.

In determining whether the defendant could assert standing under the Fourth

Amendment, we again assumed that the defendant had “established that he had a

subjective expectation of privacy[.]” Id. at 999. But we nevertheless concluded that

the defendant did not establish that society would recognize his subjective expectation

as objectively reasonable. To reach this conclusion, we recognized that people

generally have a legitimate expectation of privacy in a storage unit. See id. at 1001

(citation omitted) (collecting cases). We also acknowledged that this legitimate

expectation could extend even to individuals who are not the lessees of those units.

But we nevertheless determined that the situation in Johnson was “not orthodox,” since

the defendant “obtain[ed]” the rental unit “fraudulently.” Id. at 1001. Moreover, the

defendant “knew [that the storage] unit was not in [his girlfriend’s] name.” Id. at 998.

That manner of acquisition “undermined” the “reasonableness of any privacy

expectations[.]” (emphasis added). We refused to become “a party to [the] fraud” by

“legitimizing [the defendant’s] interest in the storage unit.” Id. at 1004. Therefore,

even if the defendant exhibited a subjective expectation of privacy, we held that society

was not prepared to recognize it as objectively reasonable under these circumstances.

In sum, these cases show that where property use is unauthorized or obtained

through fraudulent means, society is generally not prepared to consider expectations

of privacy arising out of such circumstances as objectively reasonable.

11 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 12

2. Application

Applying these principles, we conclude that, based on the particular facts here,

Mr. Lowe has failed to demonstrate a subjective expectation of privacy that the

public is prepared to consider objectively reasonable.

First, Mr. Lowe failed to introduce any evidence that he occupied or used the

storage unit—let alone with the permission of the owner, a legitimate renter, or any

other person with the authority to grant such access. The property manager’s records

“did not show there was anyone paying” for the unit at issue. R. Vol. I at 430:22–24.

Management also confirmed that Mr. Lowe did not have “any sort of storage unit or

locker within the building that he had been renting out.” R. Vol. I at 388:04–11. Mr.

Lowe provided no evidence to suggest otherwise. Further, Mr. Lowe asserted no

interest in the property seized from inside the storage unit—a suitcase containing

items he claimed “belong[ed] to other people.” Aple. Br. at 17 (citing R. Vol. I at

312:14–16).4 Simply put, Mr. Lowe made no attempt at an evidentiary showing that

“his own Fourth Amendment rights were violated by the challenged search.” Rakas,

439 U.S. at 132 n.1. As a result, we “cannot make a determination” whether his

subjective expectations were objectively reasonable. United States v. Rascon, 922

4 Mr. Lowe “fail[ed] to assert ownership” of the storage unit or the suitcase found inside—despite “notice” from the government’s arguments that he bore the burden of proof on the issue. See R. Vol. I at 573–76. For purposes of this review, we “must assume” that he “does not own” either. Rakas, 439 U.S. at 132 n.1.

12 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 13

F.2d 584, 587 (10th Cir. 1990). See also United States v. Lyons, 992 F.2d 1029,

1031–32 (10th Cir. 1993) (declining to reach objective reasonableness issue where

defendant made “no attempt” to produce “any evidence” of any right or interest).

Thus, we agree with the district court that Mr. Lowe failed to establish that he had a

reasonable expectation of privacy in the storage unit. R. Vol. I at 354.

Second, even if the record supported an inference that Mr. Lowe used the

storage unit, “[m]ere physical possession or control of property is not sufficient to

establish standing to object to a search of that property.” United States v. Conway,

73 F.3d 975, 979 (10th Cir. 1995) (citing United States v. Arango, 912 F.2d 441,

444–446 (10th Cir. 1990)). Mr. Lowe must show a lawful basis for asserting Fourth

Amendment privacy interests in the storage unit: demonstrating that he gained

possession or permission from the apartment complex or someone with the authority.

Mr. Lowe failed to show that he lawfully obtained possession of the storage

unit. Arango, 912 F.2d at 445. “[F]ail[ing] to present evidence of lawful possession”

may indicate that a defendant had no reasonable expectation of privacy in the

property. United States v. Abreu, 935 F.2d 1130, 1133 (10th Cir. 1991). Here, the

record establishes that the apartment complex owned the storage units and only

permitted the tenants to “rent them out.” R. Vol. I at 293:16. Indeed, the property

manager told Officer Diaz that “the vacant [storage] units should be vacant” and

“nobody should have access to them unless they were paying for them.” R. Vol. I at

430:20–22. And no evidence shows that Mr. Lowe rented a storage unit. R. Vol. I at

388:04–11. Nor did Mr. Lowe provide evidence that he “shar[ed] [a storage unit]

13 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 14

with someone” who did rent one. Carr, 939 F.2d at 1446 (occupant of a motel room

registered to another person presented no evidence that he was in lawful possession

of the room).

To be sure, “[p]roperty ownership” is not necessarily “controlling.” Abreu,

935 F.2d at 1133. But whatever interest Mr. Lowe had in the storage unit was

“certainly not as strong,” Johnson, 584 F.3d at 1003, as it would have been if he had

rented out the storage unit according to the conditions set by the property owner—the

apartment complex. See Jones, 213 F.3d at 1260 (violating conditional permissions

diminishes legitimate expectations of privacy). The district court noted that when a

storage unit is used without permission, apartment management’s policy is to notify

the user to remove the “property improperly held in [the] unrented storage locker.”

R. Vol. I. at 357 n.4. After the notice period lapses, the apartment management

removes the property from the storage unit, places it outside the building area, and

discards it after 24 hours. R. Vol. I at 294:16–18. These facts erode Mr. Lowe’s

claim that his expectation of privacy was reasonable. See Ruckman, 806 F.2d at

1472–73 (concluding that a defendant did not have an objectively reasonable

expectation of privacy in a cave owned by the government because of the

vulnerability of being ejected at any moment by the government acting as an ordinary

proprietor).

Absent any evidence showing lawful or legitimate use or possession, we

conclude that Mr. Lowe failed to provide sufficient evidence to establish an

objectively reasonable expectation of privacy in the storage unit. See United States v.

14 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 15

Arango, 912 F.2d 441, 445–46 (10th Cir. 1990) (lacking standing in a vehicle used

without evidence of lawful possession); United States v. Conway, 73 F.3d 975, 979

(10th Cir. 1995) (lacking standing in hotel room occupied without evidence of being

an invited guest); See Gordon, 168 F.3d at 1226 (similar). His “unlicensed use”

remains “unjustified.” Oliver, 466 U.S. at 184 n.15.

Mr. Lowe counters by asserting that, as “a tenant in the apartment building

where the storage locker was located,” he had “the right and ability to utilize the

storage lockers.” Reply Br. at 12. He further contends that his situation is distinct

because it involves “an apartment complex in which he legally resides” and “storage

units that tenants have a right to use.” Reply Br. at 14.

This argument fails. Mr. Lowe essentially argues that his legitimate presence

on the premises of the apartment complex automatically grants him a legitimate

expectation of privacy in all areas searched. We reject this reasoning. First, the

Supreme Court has “abandon[ed] the ‘legitimately on premises’” doctrine. Rakas,

439 U.S. at 141–42,147–48. Second, “even a property interest in [a] premises” may

not suffice to establish a legitimate expectation of privacy with respect to specific

“activity conducted” there. Id. at 144 n.12. So Mr. Lowe’s status as a legitimate

tenant in the apartment complex, by itself, is “not determinative” of whether he had a

Fourth Amendment interest in the “particular area[]” searched. Cf. id. at 148–49

(concluding that a “passenger qua passenger” who asserts neither a property interest

nor a possessory interest and disclaims any interest in the seized object has no

15 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 16

reasonable expectation of privacy in a glove compartment or area under the seat of

the car).

So Mr. Lowe may have had “the right and ability to utilize” the property,

Reply. Br. at 12, but that fact alone is trivially true. Still, it does not establish that

Mr. Lowe utilized the storage in a manner that confers a legitimate expectation of

privacy.5 As the proponent of the motion to suppress, Mr. Lowe bore the burden of

adducing facts to demonstrate a lawful basis to establish a legitimate use. His failure

to offer any evidence compels the conclusion that he did not meet that burden. See,

e.g., Carr, 939 F.2d at 1446 (concluding that a defendant who presented no evidence

at the suppression hearing failed to sustain his burden of proof that he had a

legitimate expectation of privacy in a room not registered to him).

Third and finally, even if Mr. Lowe had somehow obtained authorization to

use the storage unit, “Rakas makes clear that wrongful presence at the scene of a

search would not enable a defendant to object to the legality of the search.” Byrd,

584 U.S. at 409 (quoting Rakas, 439 U.S. at 141 n.9) (internal quotation marks

omitted). Here, the evidence establishes that Mr. Lowe’s actions of obtaining and

using the storage unit violated the terms of his supervised release. Consequently, on

these facts, Mr. Lowe’s claim to privacy from government intrusion is not one

5 We reject Mr. Lowe’s logic, which would permit him to assert a Fourth Amendment interest anywhere in the apartment building. See Rakas, 439 U.S. at 152 (“Allowing anyone who is legitimately on the premises searched to invoke the exclusionary rule extends the rule far beyond the proper scope of Fourth Amendment protections, as not all who are legitimately present invariably have a reasonable expectation of privacy.”) (Powell, J., concurring). 16 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 17

“society would accept as objectively reasonable.” United States v. Marchant, 55

F.3d 509, 516 (10th Cir. 1995) (rejecting the defendant’s expectations of privacy as

not objectively reasonable privacy due in part to status as prohibited person under

gun law).6

Individuals on supervised release inherently possess reduced privacy

expectations because of the heightened scrutiny required to ensure compliance with

release conditions. See United States v. Pacheco, 884 F.3d 1031, 1041 (10th Cir.

2018) (“[W]hen the terms of a parolee’s parole allow officers to search his person or

effects with something less than probable cause, the parolee’s reasonable expectation

of privacy is significantly diminished.”) (internal quotation marks omitted). And Mr.

Lowe’s supervised release conditions expressly required that he answer truthfully any

6 United States v. Marchant, 55 F.3d 509 (10th Cir. 1995), provides a useful framework for this discussion. In that case, a defendant claimed a Fourth Amendment privacy interest in the information on ATF Form 4473, arguing that law enforcement officers violated his privacy by inspecting the form at a pawn shop. 55 F.3d 509, 510–12 (10th Cir. 1995). The court rejected this argument for four key reasons. First, the defendant’s argument “disregard[ed] the significance of his status as a prohibited person under § 922(g)(1) of the GCA as amended by FOPA.” Id. at 515. Second, the court declined to read the law to “create[] a reasonable expectation of privacy in ATF Form 4473 that inures to the benefit of a person prohibited from possessing firearms under § 922(g).” Id. at 515–16. Third, the ATF Form 4473 “was not private” and explicitly “informed [the] Defendant that an untruthful answer may subject [him]to criminal prosecution.” Id. at 516. Fourth, and finally, the defendant had no lawful possession or control over the pawn shop or the form in any event. Id. Thus, the court concluded that the defendant’s claimed privacy interest was not one society would recognize as reasonable. The reasoning in Marchant parallels the reasoning here and supports our conclusion that Mr. Lowe’s acquisition and use of the storage unit was “wrongful,” rendering his expectation of privacy not objectively reasonable. 17 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 18

questions posed by his probation officer and submit his property and any area under

his control to searches. See R. Vol. I at 25–27 (listing supervised release conditions).

See also Samson v. California, 547 U.S. 843, 852 (2006) (“[A]cceptance of a clear

and unambiguous search condition significantly diminishe[s] [a defendant’s]

reasonable expectation of privacy.”) (internal quotation marks omitted). Mr. Lowe

knew that probation officers had the legal authority to inquire about and potentially

search any property he obtained.

Yet when Officer Buescher twice asked Mr. Lowe whether he had a storage

unit, Mr. Lowe twice denied obtaining or possessing one. R. Vol. I at 350, 387:16

(first denial), 388:16 (second denial). See also United States v. Hansen, 652 F.2d

1374, 1384 n.8 (10th Cir. 1981) (concluding that the defendant’s statements denying

any ownership in a motel room and statements identifying item found inside as

belonging to someone else “conclusively establishes” that defendant did not have a

legitimate expectation of privacy in the motel room).7 And Mr. Lowe did not

7 In fact, Mr. Lowe’s repeated denials of ownership, coupled with the surrounding circumstances of this case, may support concluding that he effectively abandoned any expectation of privacy in the storage unit—precluding him from challenging the search. See United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997) (“Abandonment is akin to the issue of standing because a defendant lacks standing to complain of an illegal search or seizure of property which has been abandoned.”).

Mr. Lowe’s supervised release conditions required him to submit his property to searches and to tell the truth about his property. See R. Vol. I at 26 ¶¶ 3–4. So Officer Buescher was arguably “entitled to take [Mr. Lowe] at his word.” United States v. Denny, 441 F.3d 1220, 1228 (10th Cir. 2006). Thus, Mr. Lowe’s “express disclaimer of ownership in response to a lawful police inquiry,” id. at 1227–28, may constitute abandonment of any expectation of privacy in the storage unit. Cf. United States v. Ruiz, 664 F.3d 833, 841–42 (10th Cir. 2012) (concluding that a defendant 18 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 19

disclose the existence of the storage unit or did not make the storage unit available

for search. Plus, the property manager’s records “did not show [that] anyone [was]

paying” for the storage unit here. R. Vol. I at 430:22–24. Taken together, Mr.

Lowe’s unauthorized acquisition of, and denial of ownership in, the storage unit

directly violated his legal obligations and afforded him a greater opportunity to

“conceal criminality.” Samson, 547 U.S. at 854. Accordingly, Mr. Lowe’s

“subjective expectation of not being discovered” is “not one that society is prepared

to recognize as reasonable.” Rakas, 439 U.S. at 143 n.12.

Recognizing Fourth Amendment interests in arrangements that evade legal

supervision fundamentally contradicts the purpose and rationale of those release

conditions. It follows that Mr. Lowe’s claim “cannot be reconciled,” Hudson, 468

U.S. at 526, with the principles governing supervised release or society’s interests in

enforcing supervised release conditions. Thus, we conclude that the record

establishes that Mr. Lowe’s acquisition and use of the unit was “wrongful.” Cf.

United States v. Dodds, 946 F.2d 726, 729 (10th Cir. 1991) (concluding that a

fugitive defendant with no interest in the apartment established no legitimate

expectation of privacy in the apartment). Accordingly, Mr. Lowe “could not expect

voluntarily abandoned an expectation of privacy in a rental house by “explicit[ly] stat[ing]” in letter to landlord that he no longer would be renting the property, thereby terminating the lease).

19 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 20

that the police were required to obtain a warrant or establish an exception to [the

warrant] requirement in order to search the unit.” Johnson, 584 F.3d at 1004.8

In sum, Mr. Lowe did not demonstrate standing to assert a Fourth Amendment

claim in the storage unit or its contents.

B. Sufficiency of the Evidence

Next, Mr. Lowe contends that the government failed to present sufficient

evidence that he possessed a firearm in furtherance of a drug trafficking crime.

Before addressing this contention, we must first consider whether he preserved it for

appeal.

1. Preservation

Mr. Lowe stated in his opening brief that he preserved a challenge to the in-

furtherance element during his oral Rule 29 motion for a judgment of acquittal when

he argued that “the Government did not present sufficient evidence to prove the

elements of Counts 1 and 2.” Aplt. Br. at 45 (citing R. Vol. III at 58:7–15). The

government argues in response that Mr. Lowe failed to preserve this argument,

contending that Mr. Lowe only argued that the evidence was insufficient to support a

reasonable jury finding of firearms possession.

8 The same reasons also justify rejecting Mr. Lowe’s subsidiary contention that he had “a reasonable expectation of privacy in, at a minimum, the contents of the zipped suitcase[.]” Aplt. Br. at 35. Mr. Lowe failed to assert any property or possessory interest in the suitcase or the property seized from it. Cf. Rakas, 439 U.S. at 148–49. Consequently, no evidence establishes that Mr. Lowe had a protectable interest in the suitcase, nor does the record establish Mr. Lowe’s ownership of the suitcase. 20 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 21

Federal Rule of Criminal Procedure 29 permits defendants to challenge the

sufficiency of the evidence at multiple stages: after the government closes its

evidence, after the close of all the evidence, and within 14 days after the jury returns

a guilty verdict or is discharged without a verdict. Fed. R. Crim. P. 29(a), (c); see

also United States v. Murphy, 100 F.4th 1184, 1192–93 (10th Cir. 2024) (similar).

The Rules of Criminal Procedure do not expressly permit defendants “to challenge

the sufficiency of the evidence” on appeal. United States v. Leffler, 942 F.3d 1192,

1197 (10th Cir. 2019) (quoting United States v. Goode, 483 F.3d 676, 680 (10th Cir.

2007)) (internal quotation marks omitted). Consequently, a defendant must present

claims of insufficient evidence in the first instance to the district court through a

motion for a judgment of acquittal. Id. “When a defendant challenges in district

court the sufficiency of the evidence on specific grounds all grounds not specified in

the motion are waived.” See id. (internal quotation marks and citation omitted).9

Thus, a defendant must specify all grounds for challenging the sufficiency of the

evidence in their Rule 29 motion or those unspecified grounds will be waived. “Our

preservation doctrine on this point is chiefly concerned with preventing defendants

from raising for the first time on appeal entirely distinct arguments from those

presented to the district court.” Murphy, 100 F.4th at 1195.

9 Our precedents previously “described the failure to raise a challenge in district court as a ‘waiver,’” but we have recognized that the failure is “more precisely termed a forfeiture when there is no suggestion of a knowing, voluntary failure to raise the matter.” Leffler, 942 F.3d at 1197 (quoting Goode, 483 F.3d at 681)).

21 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 22

At the close of the government’s case, Mr. Lowe made an oral Federal Rule

of Criminal Procedure 29 motion. In his motion for a judgment of acquittal, Mr.

Lowe argued that:

Viewing the evidence in the light most favorable to the Government, I still argue that the Government has not proven the elements as to Count 1 and 2 beyond a reasonable doubt. They have not tied Mr. Lowe directly to the suspected MDMA or to . . . the .40-caliber Kahr handgun that was found in the storage unit. So I would argue that the case should be dismissed as to those two counts at this time.

R. Vol. III at 58: 7–15 (emphasis added).10

The government asserts that Mr. Lowe’s Rule 29 motion for acquittal argued

only that there was insufficient evidence that he possessed a firearm. Aplt. Br. at 33.

Because these are two separate “inquiries and elements,” the government argues that

we should review only for plain error. Aplt. Br. at 33 (citing United States v. Rufai,

732 F.3d 1175, 1189 (10th Cir. 2013)). Since Mr. Lowe did not raise a plain error in

his opening brief, the government argues his challenge has reached “the end of the

road.” Aplt. Br. at 33 (citing Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th

Cir. 2011)).

Convicting Mr. Lowe under § 924(c)(1)(A)(i) required proof beyond a

reasonable doubt of (1) a drug trafficking crime; (2) possession of a firearm; and (3)

possession of the firearm in furtherance of the drug trafficking crime. To meet the

10 Count One was for possession with intent to distribute a mixture and substance containing a detectable amount of MDMA, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1); Count Two was for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). 22 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 23

“in furtherance element,” the government needed to prove beyond a reasonable doubt

that “the weapon furthered, promoted or advanced a drug trafficking crime.” United

States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007) (quoting United States v.

Robinson, 435 F.3d 1244, 1251 (10th Cir. 2006)) (alterations omitted). “This

requires that the government establish some nexus between the firearms and the

underlying drug trafficking crime.” Id.

Mr. Lowe challenged the government’s evidence as insufficient to “tie[] Mr.

Lowe to the suspected MDMA” and insufficient to “tie[] Mr. Lowe . . . to the

handgun.” R. Vol. III at 58: 7–15; see also Reply at 1. Therefore, Mr. Lowe based

his motion for judgment of acquittal on the § 924(c)(1)(A)(1) charge on specific

arguments of insufficient evidence related to two elements: (1) the evidence failed to

show Mr. Lowe committed MDMA trafficking (i.e., element one); and (2) the

evidence failed to show Mr. Lowe possessed a firearm (i.e., element two). We

conclude that Mr. Lowe’s original motion for judgment of acquittal did not invoke an

argument specific to the “possession of the firearm in furtherance of the drug

trafficking crime” (i.e., element three). Mr. Lowe now asks us to reverse the district

court’s denial of his motion for judgment of acquittal, claiming that evidence could

not show a “link between [the MDMA] and the firearm.” Aple. Br. at 49. Thus, Mr.

Lowe challenges on appeal “a different element,” Murphy, 100 F.4th at 1195, than

the two elements his motion expressly challenged at the district court. See United

States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (treating argument as forfeited

when the defendant challenged at district court the evidentiary sufficiency of the

23 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 24

weapon and defendant nexus to meet the element of possession and challenged

evidentiary sufficiency of commerce element on appeal).

“As a general matter, arguments not raised before the district court are

forfeited on appeal.” United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2019)

(citing Richison, 634 F.3d at 1127–28). “On appeal, we can only consider forfeited

arguments under the plain error standard of review.” Id. Yet Mr. Lowe failed to

make a plain-error argument in his opening brief, however, and failed to “allege plain

error in [his] reply brief after the Government assert[ed] waiver” in its brief in

response. Leffler, 942 F.3d at 1198. Accordingly, we may follow our ordinary

course and “deem the issue waived (rather than merely forfeited) and decline to

review the issue at all—for plain error or otherwise.” Id. at 1196.

But that is inappropriate in this context because the issue was preserved below.

In United States v. Hernandez-Rodriguez, we concluded that when the district court

“sua sponte raises and explicitly resolves an issue of law on the merits,” the appellant

“may challenge that ruling on appeal on the ground addressed by the district court

even if he failed to raise the issue in district court.” United States v. Hernandez-

Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003). See also Garcia, 936 F.3d at 1132

(“[I]f the district court was ‘adequately alerted to the issue,’ and perhaps even

responded to the issue, then we are able to review on appeal.”). In such a scenario,

we review not for ‘plain error’ but rather the “same standard of appellate review that

would be applicable if the appellant had properly raised the issue.” Hernandez-

Rodriguez, 352 F.3d at 1328.

24 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 25

In a recent opinion, United States v. Buntyn, we applied the Hernandez-

Rodriguez principle in the context of a motion for a judgment of acquittal for

sufficiency of the evidence. 104 F.4th 805 (10th Cir. 2024). In Buntyn, the

defendant was charged with willfully violating detainees’ rights under the Fourteenth

Amendment’s Due Process Clause. 104 F.4th at 806–07 (citing 18 U.S.C.

§ 242). After the government rested its case, the defendant moved for a judgment in

his favor, challenging only two elements, but not others. The district court denied

that challenge. The defendant appealed, challenging the sufficiency of the evidence

and broadening the sufficiency argument to additional elements not argued below.

Applying Hernandez-Rodriguez, we considered the challenge on the merits

irrespective of what the defendant had argued in the district court. Id. at 808

(applying Hernandez-Rodriguez, 352 F.3d at 1328–30). We explained that because

“the government responded to [the] motion by arguing that the evidence was

sufficient not only on [the challenged element], but also on all other elements,” and

the district court’s ruling “arguably addressed all the elements,” id. at 808, we,

therefore, could review de novo the sufficiency of the evidence arguments. Id.

The same is true here. The government “responded to [the] motion by arguing

that the evidence was sufficient not only on [the challenged element], but also on all

other elements,” and the district court’s ruling “addressed all the elements.” Id. In

addressing Mr. Lowe’s motion for judgment of acquittal, the government stated:

And I think establishing possession of the Kahr specifically, and in those phone calls I note, Your Honor, the defendant actually admits to actual possession, I believe on Friday, the

25 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 26

24th, where he mentions that, you know, the Kahr -- the two- toned one that he was showing to one of his friends I think earlier that day. I interpret that to mean earlier the Friday he was taken into custody. So that’s actual possession. That means he had to place that firearm in that luggage that day. That’s – that actual possession also is evidence of the constructive possession he had on the 27th when he sent people up there to try to get it before police did.

It’s also evidence of his constructive possession of the narcotics in the luggage.

The narcotics that you heard from Detective Jeffers is an amount that is not common or, rather, is an amount for distribution along with all the other evidence of distribution. The gelatin capsules, the pill press, the baggies, the scales. Take that altogether, Your Honor, all that is sufficient at this time to proceed with the jury and let them make a determination on the charges. Thank you.

R. Vol. III at 62: 2–23 (emphasis added).

Given this, we find that the government addressed the “in furtherance of”

element required for conviction. The government argued that phone calls established

“possession of the Kahr specifically,” which Mr. Lowe admitted to “plac[ing] . . . in

the luggage that day.” The government also argued that the firearm’s placement in

the luggage to the constructive possession of narcotics found in the same luggage was

“also evidence of [Mr. Lowe’s] constructive possession of the narcotics.” Lastly, the

government argued that testimony showed that the quantity of narcotics found was

“an amount for distribution.” These points collectively relate to factors relevant to

26 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 27

assessing whether the government has established the requisite nexus between the

firearm and the drug-trafficking offense.11

The district court’s ruling also expressly addressed all the elements. For the

drug trafficking crime, the court found that “a reasonable jury could conclude that

Mr. Lowe knowingly or intentionally possessed MDMA.” Regarding possession, the

court concluded that facts showing that Mr. Lowe’s “DNA was very likely present on

the Kahr firearm,” supported “the inference that Mr. Lowe possessed the firearm.”

R. Vol. III at 67: 18–21. And in furtherance of the drug trafficking crime, the court

concluded that “A reasonable jury could infer from these facts that Mr. Lowe

possessed the Kahr firearm . . . for the purpose of assisting in or accomplishing his

drug trafficking activities, i.e., in furtherance of those activities.”12 Thus, we reject

the government’s waiver argument and conclude that the government’s response and

the district court’s ruling addressed all the elements of Mr. Lowe’s evidentiary

11 Our precedents have identified a nonexclusive list of factors relevant when assessing whether the government has established the requisite nexus between the firearm and the drug-trafficking offense, including: (1) “the type of drug activity being conducted, (2) the accessibility of the firearm, (3) the type of firearm, (4) the legal status of the firearm, (5) whether the firearm is loaded, (6) the proximity of the firearm to drugs or drug profits, (7) and the time and circumstances under which the firearm is found.” United States v. King, 632 F.3d 646, 655 (10th Cir. 2011). 12 Mr. Lowe also argued that “somebody stuffed them in the suitcase all together at the same time.” Reply at 1 (brackets omitted). Cf. Garcia, 936 F.3d at 1132 (reviewing forfeited argument below despite no plain error argument where both parties sometime in the proceedings advocated for the argument and the district court fully addressed the argument on the merits).

27 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 28

sufficiency challenge to the § 924(c)(1)(A)(i) charge. Accordingly, we review de

novo Mr. Lowe’s “challenge on the merits irrespective of what he had argued in

district court.” Buntyn, 104 F.4th at 808 (citing Tesone v. Empire Mktg. Strategies,

942 F.3d 979, 991–92 (10th Cir. 2019) (quoting Hernandez-Rodriguez, 352 F.3d at

1328)).13

2. Merits

That said, we conclude that sufficient evidence existed to sustain Mr. Lowe’s

conviction. In reviewing the sufficiency of the evidence, we consider all the

evidence in the light most favorable to the prosecution and determine whether “any

rational trier of fact could have found the essential elements of the crime beyond a

13 This conclusion is consistent with United States v. Goode, 483 F.3d 676 (10th Cir. 2007). In that case, the district court instructed the jury to convict Mr. Goode only if it found that the government had proved beyond a reasonable doubt that: (1) the defendant was previously convicted of a felony; (2) the defendant knowingly possessed a firearm after the conviction; and (3) before the defendant possessed the firearm, the firearm had moved from one state to another. Goode, 483 F.3d at 679. After the jury was instructed, Mr. Goode moved for a judgment of acquittal under Federal Rule of Criminal rocedure. 29, arguing only that there was not a sufficiently legal nexus between the weapon and himself to meet the element of possession. Goode, 483 F.3d at 676. He did not address the commerce element. The district court denied the motion, ruling that “there was sufficient evidence for a jury to conclude that Mr. Goode was in possession of the weapon.” Id. Thus, the district court addressed only the possession element in its ruling. On appeal, Mr. Goode contended there was insufficient evidence that the firearm had moved between states. We reviewed this contention under the plain-error standard. Id. at 681.

Mr. Lowe similarly did not initially address in his original Rule 29 motion an element required for conviction—the “in-furtherance” element of 18 U.S.C. § 924(c)(1)(A)(i). But unlike in Goode, the district court ruled on the evidentiary sufficiency of all elements necessary for conviction. And the government addressed all elements necessary for conviction during argument on the Rule 29 motion.

28 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 29

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis added)

(citation omitted). We do not weigh conflicting evidence or consider witness

credibility. King, 632 F.3d at 650 (citation omitted). “The evidence necessary to

support a verdict need not conclusively exclude every other reasonable hypothesis

and need not negate all possibilities except guilt.” United States v. Serrata, 425 F.3d

886, 895 (10th Cir. 2005) (quoting United States v. Wilson, 182 F.3d 737, 742 (10th

Cir. 1999)). Thus, “[w]e may reverse only if no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” King, 632

F.3d at 650 (quoting United States v. Ramos-Arenas, 596 F.3d 783, 786 (10th Cir.

2010).

As stated above, convicting Mr. Lowe under § 924(c)(1)(A)(i) required proof

beyond a reasonable doubt of (1) a drug trafficking crime; (2) possession of a firearm

(3) and possession of the firearm in furtherance of the drug trafficking crime. Only

the third element is at issue on appeal, which “requires that the government establish

some nexus between the firearms and the underlying drug trafficking crime.” Id. We

conclude that the government met its burden.

First, the government presented evidence that Mr. Lowe possessed items

typically associated with drug trafficking, including the means to protect himself

while engaging in it. “Some items like firearms, large sums of cash, weighing scales,

and uncharged quantities of illegal drugs are generally viewed as tools of the trade—

that is, means for the distribution of illegal drugs.” United States v. Hall, 473 F.3d

1295, 1304 (10th Cir. 2007) (internal quotation marks omitted). Mr. Lowe has not

29 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 30

appealed his conviction for possessing MDMA with intent to distribute it, and he

acknowledges on appeal that “[e]vidence supporting” that conviction—the gelatine

capsules, baggies, and digital scales—were “found in [his] apartment.” Aplt. Br. at

49. These items are probative of a defendant’s “participation in the drug distribution

business.” Hall, 473 F.3d at 1304. Moreover the MDMA was found in the “same

compartment of the suitcase” as the firearms, Aple. Br. at 36, indicating that the

firearm was “easily available” for use when engaging in drug trafficking, King, 632

F.3d at 658. See also id. at 656 (“When guns and drugs are found together and a

defendant has been convicted of possession with intent to distribute, the gun . . . may

reasonably be considered to be possessed ‘in furtherance of’ an ongoing drug-

trafficking crime.”). Therefore, these facts permit a jury to find that Mr. Lowe

intended to have the firearm available to protect his drug operation. United States v.

Basham, 268 F.3d 1199, 1208 (10th Cir. 2001) (“[A] firearm that is kept available for

use if needed during a drug transaction is ‘possessed in furtherance of’ drug

trafficking[.]”).

Second, the government presented evidence of a loaded firearm near the drugs,

indicating Mr. Lowe’s intent to use it for protection in drug trafficking. “A loaded

firearm is obviously better suited to serve as protection for illegal drugs that a

defendant intends to distribute.” United States v. McGehee, 672 F.3d 860, 872 (10th

Cir. 2012) (internal quotation omitted) (citing King, 632 F.3d at 656). The Kahr

handgun found in the suitcase near the drugs was loaded. Aple. Br. at 36 (citing R.

Vol. III at 243, 247); see Robinson, 435 F.3d at 1251 (affirming a § 924(c)(1)(A)

30 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 31

conviction where “the firearm was a fully loaded and chambered high-powered rifle

easily within reach” and “in close proximity to drug paraphernalia”). Moreover, the

firearm, while not stolen, was “illegally possessed” since Mr. Lowe was at the time

“a convicted felon and had no right to possess it.” McGehee, 672 F.3d at 872.

Therefore, the illegally possessed loaded firearm and its proximity to the MDMA

support conviction under § 924(c)(1)(A). What is more, the government’s evidence

that Mr. Lowe used language (e.g., “tools”) that are consistent with drug trafficking

codewords regarding the sale of drugs provides circumstantial evidence of his

intention to sell drugs.

Mr. Lowe resists this conclusion by arguing that “[n]o evidence . . . directly

tied” him to the drugs or the gun. Reply at 1. See also Reply Br. at 2 (“zero

evidence” linking the “firearm in the storage locker” to “the furtherance of a drug

transaction”). He contends that nothing at trial demonstrated his use of a firearm

during any alleged drug sales and that the gun’s location fails to prove it was used in

furtherance of a particular drug trafficking crime.

These arguments fail. For one thing, “[t]he intent to possess the weapon to

further the drug trafficking crime is generally proven through circumstantial

evidence[.]” United States v. Rogers, 556 F.3d 1130, 1140 (10th Cir. 2009). And

more to the point: the offense here “does not require evidence that the gun was

actively used or employed, only evidence that it was ‘possessed’ in furtherance of a

drug-trafficking crime.” King, 632 F.3d at 656 (citing Basham, 268 F.3d at 1208

(recognizing passive possession). So the government need not prove that the firearm

31 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 32

was used for a particular transaction for that evidence to be probative. See Hall, 473

F.3d at 1304.

C. Sixth Amendment Violation

Mr. Lowe next claims that the district court violated his Sixth Amendment

rights by erroneously finding methamphetamine in the mixture he possessed since the

lab results did not confirm the presence of methamphetamine.

The government asserts that Mr. Lowe did not raise a Sixth Amendment

challenge at the district court. Aple. Br. at 39 (citing R. Vol I:62-63; R. Vol. II:16;

R. Vol. III:20-23). We agree. All that Mr. Lowe did was object to the base offense

level calculation, arguing that the lab report did not specify an amount of

methamphetamine present in the mixture. R. Vol I:62-63 (objections); R. Vol. III:20-

23 (sentencing hearing). But he did not explicitly raise a Sixth Amendment claim at

the district court. Put another way: while Mr. Lowe contested the drug quantity and

the presence of methamphetamine, he did not specifically frame this contention as a

Sixth Amendment violation during the district court proceedings. And Mr. Lowe did

not “allege plain error in a reply brief after the Government assert[ed] waiver” in its

brief in response. Leffler, 942 F.3d at 1198. “When an appellant fails to preserve an

issue and also fails to make a plain-error argument on appeal, we ordinarily deem the

issue waived (rather than merely forfeited) and decline to review the issue at all—for

plain error or otherwise.” Id. at 1196 (citing Richison, 634 F.3d at 1130–31). That is

appropriate here since the government would have been prevented from responding

in writing to Mr. Lowe’s arguments on the plain error standards. See id. at 1198

32 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 33

(“But we will only exercise our discretion if it ‘permits the appellee to be heard and

the adversarial process to be served.’”) (quoting United States v. Isabella, 918 F.3d

816, 844 (10th Cir. 2019)). We, therefore, conclude that Mr. Lowe waived the Sixth

Amendment claim.

But even if we reached the merits of the underlying contention, the record

shows that “detectable” or “trace” amounts of methamphetamine were found. Under

United States v. Valdez, 225 F.3d 1137 (10th Cir. 2000), that is enough. In that case,

we dealt with an amount of methamphetamine that was “detectable but not

measurable or quantifiable.” Id. at 1142. We held that “a substance containing an

‘unquantifiable trace’ of methamphetamine still contains a sufficiently detectable

amount of the drug to be included as relevant conduct.” Id. at 1143 (citing United

States v. Killion, 7 F.3d 927, 935 (10th Cir. 1993)). We thus concluded that

“sufficient evidence in the record [supported] the district court’s finding that the

substances underlying the acquitted charges contained a detectable amount of

methamphetamine.” Id. at 1143–44. Thus, the trace amounts of methamphetamine

sufficed to be considered at sentencing.

Applying that logic and reasoning, we conclude the same here.14

14 To the extent Mr. Lowe challenges the procedural reasonableness of the district court’s calculation of his total offense level based on a methamphetamine mixture, this argument fails for the same reason. 33 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 34

D. Amendment 821 to the Sentencing Guidelines

Finally, Mr. Lowe contends that his case warrants a remand for resentencing

under Amendment 821 to the Sentencing Guidelines. The government asserts in

response that whether Mr. Lowe qualifies for a sentence reduction under the

amendment is “a matter for the district court, in its discretion, to determine in the

first instance under 18 U.S.C. § 3582(c)(2).” We agree.

Section 3582(c)(2) allows a court to reduce a sentence for a defendant “who

has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” In a recently decided

unpublished case, we determined that we lacked jurisdiction to consider a similar

request on direct appeal. United States v. Moreno, No. 23-4102, 2024 WL 159928, at

*1 (10th Cir. Jan. 16, 2024) (dismissing appeal for lack of jurisdiction when the

defendant did not seek a sentence reduction under Sentencing Guidelines Amendment

821 in the district court). As we explained, “where [defendants] [do] not move to

reduce [their] sentence in the district court,” and “assert[] for the first time on appeal

that [they] qualif[y] for a retroactive sentencing reduction under Sentencing

Guidelines Amendment 821,” we “have no final decision of the district court to

review and therefore lack jurisdiction to consider [the] issue.” Id. (first citing 28

U.S.C. § 1291; then citing Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261

(10th Cir. 2001) (“[a]side from a few well-settled exceptions, federal appellate courts

have jurisdiction solely over appeals from ‘final decisions of the district courts of the

United States.’”)).

34 Appellate Case: 23-1156 Document: 71-1 Date Filed: 09/20/2024 Page: 35

Mr. Lowe explains that “the retroactivity of Amendment 821 was not

determined and voted on by the Sentencing Commission until August 24, 2023—after

[his] sentence was imposed.” Aplt. Br. at 58. We conclude that this provides no

reason to deviate from the reasoning in Moreno to reach a different conclusion in Mr.

Lowe’s case.15

* * *

Accordingly, we AFFIRM the district court’s denial of Mr. Lowe’s motion to

suppress and AFFIRM Mr. Lowe’s conviction and sentencing.

15 We acknowledge that the Seventh Circuit allowed a remand for resentencing under 28 U.S.C. § 2106 on the defendant’s robbery convictions. See United States v. Claybron, 88 F.4th 1226, 1231 (7th Cir. 2023) (holding that the post-sentencing proposal and enactment of retroactive Amendment 821 warranted a § 2106 remand and limited resentencing on robbery convictions). In that case, the defendant specifically urged the Court to remand using § 2106. Id. at 1231. No such request was made here.