Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-1075 (D.C. No. 1:22-CR-00080-RMR-2) MARLENE MCGUIRE, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges.** _________________________________
Defendant Marlene McGuire sold fentanyl pills to sixteen-year-old J.B., who
overdosed and died as a result. At trial, a jury convicted Defendant of six drug-
related offenses: conspiracy to distribute fentanyl, para-fluorofentanyl,
methamphetamine, and cocaine resulting in death under 21 U.S.C. § 846 (Count 1);
distribution of fentanyl and para-fluorofentanyl resulting in death under 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Count 2); distribution of fentanyl and para-fluorofentanyl to a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 2
person under 21 under 21 U.S.C. §§ 841(a)(1), (b)(1)(C) & 859 (Count 3); possession
with the intent to distribute methamphetamine under 21 U.S.C § 841(a)(1),
(b)(1)(B)(viii) (Count 4); possession with intent to distribute heroin under 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Count 5); and possession with intent to distribute cocaine
under 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 6).
At sentencing, the district court calculated a total offense level of 40 after
applying a two-level enhancement under U.S.S.G. § 3A1.1(b)(1).
Section 3A1.1(b)(1)’s two-level enhancement applies when the victim of the offense
is “unusually vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct.” The district court found
that J.B. was a vulnerable victim, and the Defendant objected to this finding. The
district court stated that even if the Defendant were to prevail on this objection,
Defendant’s total offense level would remain the same because the counts are
grouped, and another count would mandate a total offense level of 40. Defendant
now appeals the two-level enhancement arguing that J.B. was not a vulnerable victim
under § 3A1.1(b)(1).
We review the district court’s application of the sentencing guidelines
de novo, and we uphold the district court’s factual findings unless they are clearly
erroneous. United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997) (citing
United States v. McAlpine, 32 F.3d 484, 487–88 (10th Cir.), cert. denied, 513 U.S.
1031 (1994)). Although an erroneously calculated Guideline sentence generally
requires us to remand for resentencing, United States v. Gieswein, 887 F.3d 1054,
2 Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 3
1056 (10th Cir. 2018), we may affirm a sentence resulting from an incorrect
guideline calculation if the error was harmless, United States v. Sanchez, 979 F.3d
1256, 1264 (10th Cir. 2020) (citing United States v. Todd, 515 F.3d 1128, 1139
(10th Cir. 2008)). “In the sentencing context, a harmless error is one that ‘did not
affect the district court’s selection of the sentence imposed.’” United States v. Hess,
106 F.4th 1011, 1036 (10th Cir. 2024) (quoting United States v. Lente, 647 F.3d
1021, 1037–38 (10th Cir. 2011)).
We decline to reach the merits of Defendant’s claim because we agree with the
district court that Defendant’s total offense level is 40 regardless of whether
§ 3A1.1(b)(1)’s two-level enhancement applies.
Section 3D1.2 provides that “counts involving substantially the same harm
shall be grouped together into a single Group.” Once the sentencing court groups the
offenses, it then determines the offense level of the group. United States v. Gigley,
213 F.3d 503, 506 (10th Cir. 2000). The group’s offense level, when grouped
together pursuant to § 3D1.2(a)–(c), “is the offense level . . . for the most serious of
the counts comprising the group, i.e., the highest offense level of the counts in the
group.” Id. (quoting § 3D1.3(a)); see also § 3D1.3(b) (“In the case of counts grouped
together pursuant to § 3D1.2(d) . . . apply the offense guideline that produces the
highest offense level.”). The “offense level” for a count refers to the offense level
after all adjustments and enhancements. § 3D1.3, Application Note 1. The
presentence report grouped all counts together as a single group under § 3D1.2(a),
3 Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 4
(c), (d), and at sentencing, the district court agreed with that approach. On appeal,
Defendant does not challenge the grouping of her offenses.
We look to § 2D1.1 to calculate the base offense level of Counts 1, 2, 4, 5, and
6 because those counts involve 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), (b)(1)(C) and
846 violations. See U.S.S.G. Appendix A, Statutory Index. Under U.S.S.G.
§ 2D1.1(a)(2), Defendant’s base offense level is 38. Because the district court
determined that J.B. was a vulnerable victim under § 3A1.1(b)(1) and applied the
two-level enhancement, the district court calculated a total offense level of 40.
But even if the district court did not apply § 3A1.1(b)(1)’s two-level
enhancement, Defendant’s total offense level would still be 40. We look to § 2D1.2
to calculate the base offense level for Count 3 because Count 3 is a violation of
21 U.S.C. § 859. See U.S.S.G. Appendix A, Statutory Index. Under
U.S.S.G. § 2D1.2, Defendant’s base offense level is 40.1 Because all counts are
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Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-1075 (D.C. No. 1:22-CR-00080-RMR-2) MARLENE MCGUIRE, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, MURPHY, and CARSON, Circuit Judges.** _________________________________
Defendant Marlene McGuire sold fentanyl pills to sixteen-year-old J.B., who
overdosed and died as a result. At trial, a jury convicted Defendant of six drug-
related offenses: conspiracy to distribute fentanyl, para-fluorofentanyl,
methamphetamine, and cocaine resulting in death under 21 U.S.C. § 846 (Count 1);
distribution of fentanyl and para-fluorofentanyl resulting in death under 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Count 2); distribution of fentanyl and para-fluorofentanyl to a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 2
person under 21 under 21 U.S.C. §§ 841(a)(1), (b)(1)(C) & 859 (Count 3); possession
with the intent to distribute methamphetamine under 21 U.S.C § 841(a)(1),
(b)(1)(B)(viii) (Count 4); possession with intent to distribute heroin under 21 U.S.C.
§ 841(a)(1), (b)(1)(C) (Count 5); and possession with intent to distribute cocaine
under 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 6).
At sentencing, the district court calculated a total offense level of 40 after
applying a two-level enhancement under U.S.S.G. § 3A1.1(b)(1).
Section 3A1.1(b)(1)’s two-level enhancement applies when the victim of the offense
is “unusually vulnerable due to age, physical or mental condition, or who is
otherwise particularly susceptible to the criminal conduct.” The district court found
that J.B. was a vulnerable victim, and the Defendant objected to this finding. The
district court stated that even if the Defendant were to prevail on this objection,
Defendant’s total offense level would remain the same because the counts are
grouped, and another count would mandate a total offense level of 40. Defendant
now appeals the two-level enhancement arguing that J.B. was not a vulnerable victim
under § 3A1.1(b)(1).
We review the district court’s application of the sentencing guidelines
de novo, and we uphold the district court’s factual findings unless they are clearly
erroneous. United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997) (citing
United States v. McAlpine, 32 F.3d 484, 487–88 (10th Cir.), cert. denied, 513 U.S.
1031 (1994)). Although an erroneously calculated Guideline sentence generally
requires us to remand for resentencing, United States v. Gieswein, 887 F.3d 1054,
2 Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 3
1056 (10th Cir. 2018), we may affirm a sentence resulting from an incorrect
guideline calculation if the error was harmless, United States v. Sanchez, 979 F.3d
1256, 1264 (10th Cir. 2020) (citing United States v. Todd, 515 F.3d 1128, 1139
(10th Cir. 2008)). “In the sentencing context, a harmless error is one that ‘did not
affect the district court’s selection of the sentence imposed.’” United States v. Hess,
106 F.4th 1011, 1036 (10th Cir. 2024) (quoting United States v. Lente, 647 F.3d
1021, 1037–38 (10th Cir. 2011)).
We decline to reach the merits of Defendant’s claim because we agree with the
district court that Defendant’s total offense level is 40 regardless of whether
§ 3A1.1(b)(1)’s two-level enhancement applies.
Section 3D1.2 provides that “counts involving substantially the same harm
shall be grouped together into a single Group.” Once the sentencing court groups the
offenses, it then determines the offense level of the group. United States v. Gigley,
213 F.3d 503, 506 (10th Cir. 2000). The group’s offense level, when grouped
together pursuant to § 3D1.2(a)–(c), “is the offense level . . . for the most serious of
the counts comprising the group, i.e., the highest offense level of the counts in the
group.” Id. (quoting § 3D1.3(a)); see also § 3D1.3(b) (“In the case of counts grouped
together pursuant to § 3D1.2(d) . . . apply the offense guideline that produces the
highest offense level.”). The “offense level” for a count refers to the offense level
after all adjustments and enhancements. § 3D1.3, Application Note 1. The
presentence report grouped all counts together as a single group under § 3D1.2(a),
3 Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 4
(c), (d), and at sentencing, the district court agreed with that approach. On appeal,
Defendant does not challenge the grouping of her offenses.
We look to § 2D1.1 to calculate the base offense level of Counts 1, 2, 4, 5, and
6 because those counts involve 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), (b)(1)(C) and
846 violations. See U.S.S.G. Appendix A, Statutory Index. Under U.S.S.G.
§ 2D1.1(a)(2), Defendant’s base offense level is 38. Because the district court
determined that J.B. was a vulnerable victim under § 3A1.1(b)(1) and applied the
two-level enhancement, the district court calculated a total offense level of 40.
But even if the district court did not apply § 3A1.1(b)(1)’s two-level
enhancement, Defendant’s total offense level would still be 40. We look to § 2D1.2
to calculate the base offense level for Count 3 because Count 3 is a violation of
21 U.S.C. § 859. See U.S.S.G. Appendix A, Statutory Index. Under
U.S.S.G. § 2D1.2, Defendant’s base offense level is 40.1 Because all counts are
grouped, under § 3D1.3(a)–(b), we apply the offense guideline that produces the
highest offense level. In this case, the base offense level for Count 3 is higher than
1 To be clear, although § 2D1.2(a)(1) adds two levels onto the base-offense level calculated under § 2D1.1 if the drug offense involved an underaged person, this is not the same two-level enhancement under § 3A1.1(b)(1) to which Defendant objects. And the two additional levels mandated in § 2D.1.2 are part of the base offense level, not enhancements to the base offense level. See United States v. Norwood, 548 F. App’x 550, 554 (10th Cir. 2013); United States v. Smith, 13 F.3d 380, 383 (10th Cir. 1993). 4 Appellate Case: 24-1075 Document: 43 Date Filed: 04/11/2025 Page: 5
the offense level of Counts 1, 2, 4, 5, and 6 without the two-level enhancement, so
Count 3’s offense level controls the group.2
In sum, regardless of whether the district court applied § 3A1.1(b)(1)’s two-
level vulnerable victim enhancement, Defendant’s total offense level is 40. Thus,
even if the district court erred by applying the enhancement, that error was harmless.
AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge
2 The district court noted at sentencing that “the calculation remains at 40” even “if the defendant were to prevail on [her vulnerable victim] objection” because “Count Three would control the offense level for the group of all counts.” 5