United States v. Young

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 20, 2024
• Docket: 23-6094
• Status: Unpublished

Opinion

Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

September 20, 2024 FOR THE TENTH CIRCUIT ________________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 23-6094 v. (D.C. No. 5:22-CR-00492-F-1) (W.D. Okla.) JEMERIO JACOBY YOUNG,

Defendant - Appellant. ___________________________________________

ORDER AND JUDGMENT * ____________________________________

Before BACHARACH, MORITZ , and FEDERICO, Circuit Judges. ____________________________________

Mr. Jemerio Young was convicted of possessing fentanyl with the

intent to distribute. 21 U.S.C. § 841(a)(1). For this conviction, the district

court imposed a sentence of 140 months.

Mr. Young appeals the sentence, challenging the district court’s

calculation of the guideline range. That calculation depended in part on the

quantity and type of drugs attributable to him. U.S.S.G. § 1B1.3(a).

* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 2

In the presentence report, the probation officer addressed drugs

found in Mr. Young’s house. The district court attributed these drugs to

Mr. Young and said that they had contained fentanyl. Challenging this

statement, Mr. Young argues that the evidence didn’t show the presence of

fentanyl.

Preservation

In district court, Mr. Young denied possession of the drugs but not

the presence of fentanyl. In fact, Mr. Young appeared to acknowledge that

the drugs had contained fentanyl:

Mr. Young disputes possessing the fentanyl pills described in these paragraphs. He did not commit this act of possession, nor was the possession by other parties done in a jointly undertaken criminal activity.

R. vol. 2, at 29. The district court ultimately rejected Mr. Young’s

argument that he hadn’t possessed the drugs. But the court had no reason to

decide whether the drugs contained fentanyl.

Mr. Young argues that the district court nonetheless characterized the

drugs as fentanyl. Based on this purported characterization, Mr. Young

insists that he can challenge the court’s statement that the drugs contained

We disagree. An argument is preserved when a district court

“‘explicitly’ address[es] the merits of an issue.” See United States v.

Guinn, 89 F.4th 838, 847 (10th Cir. 2023) (quoting United States v.

2 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 3

Johnson, 43 F.4th 1100, 1115 (10th Cir. 2022)). But the district court

didn’t explicitly address whether the evidence would permit

characterization of the drugs as fentanyl.

Granted, the court did refer to the drugs as fentanyl. But this

reference appeared only to acknowledge the parties’ mutual assumption

about the presence of fentanyl, and there’s nothing to suggest that the

district court was intending to make a separate finding of drug type based

on the evidence. See United States v. Gunn, 89 F.4th 838, 847 (10th Cir.

2023) (concluding that the district court hadn’t “explicitly addressed” the

appellate issue by referring to the merits without mention of the specifics

of the contention later raised in the appeal). We thus conclude that Mr.

Young failed to preserve his appellate argument involving the presence of

fentanyl in the drugs. See United States v. Deninno, 29 F.3d 572, 579–80

(10th Cir. 1994) (finding a forfeiture when the defendant objected to the

quantity of the drug but not its type).

The government characterizes that lapse as a waiver; Mr. Young

characterizes the lapse as a forfeiture. If Mr. Young is right, he could seek

reversal under the plain-error standard; if the government is right,

Mr. Young would have given up his right to seek reversal under any

standard. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir.

1919) (forfeiture); United States v. Egli, 13 F.4th 1139, 1144 (10th Cir.

2021) (waiver).

3 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 4

For the sake of argument, we can assume that Mr. Young is right in

characterizing the lapse as a forfeiture. Based on that assumption, we apply

the plain-error standard. See Davis v. United States, 589 U.S. 345, 140

S. Ct. 1060–62 (2020) (per curiam). Under that standard, Mr. Young must

show that the district court committed an error that was obvious. United

States v. Wells, 38 F.4th 1246, 1256 (10th Cir. 2022). An error would have

been obvious only if the district court’s findings had been

 “internally contradictory,”

 “wildly implausible,” or

 “in direct conflict with the evidence” presented to the sentencing court.

United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1262–63 (10th Cir.

2020) (quoting United States v. Saro, 24 F.3d 283, 291 (D.C. Cir. 1994)).

In our view, Mr. Young hasn’t made that showing.

Absence of an Obvious Error

Mr. Young acknowledges that his attorney and the prosecutor

assumed that the drugs had contained fentanyl. See Appellant’s Opening

Br. at 28 (“[E]veryone present at sentencing appears to have taken for

granted that the pills were fentanyl (except perhaps Mr. Young who denied

knowledge of the pills and therefore could not state whether the pills were

fentanyl or not).”). The probation officer apparently shared that

assumption, referring in the presentence report to Mr. Young’s

4 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 5

“‘[p]ossession of [f]entanyl.” R. vol. 2, at 7. Mr. Young objected, but not

because he questioned the presence of fentanyl. To the contrary, Mr.

Young denied possessing “the fentanyl as described in” the presentence

report. R. vol. 2, at 29; see p. 2, above.

On appeal, Mr. Young insists that by denying possession of the

drugs, he couldn’t have known what the drugs were. But Mr. Young never

denied knowledge of the drugs. 1

Granted, Mr. Young denied possessing those drugs. Possession

required not only knowledge, but also an intent to exercise control over the

drugs. United States v. Little, 829 F.3d 1177, 1182–83 (10th Cir. 2016). So

when Mr. Young denied possession, he wasn’t necessarily denying

knowledge of the drugs. After all, the drugs sat on a shelf in his house.

The presence of fentanyl was not just assumed, but also supported by

the evidence. For example, the district court had an affidavit stating that

the drugs were in bags labeled M-30 and FTP-Fentanyl. Mr. Young insists

that the affidavit was ambiguous and unsworn.

The affidavit was arguably ambiguous. It said that the bags had two

labels: M-30 and FTP-Fentanyl. But were both markings on each bag, or

were some bags marked M-30 and others marked FTP-Fentanyl? Because

we don’t know which set of markings existed, Mr. Young argues that the

1 Mr. Young insists that he disavowed knowledge of the pills. But he doesn’t provide support for this purported disavowal of knowledge. 5 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 6

district court would obviously have erred by inferring that all of the bags

had been marked FTP-Fentanyl. But if that inference had been

unwarranted, the mistake would have been understandable. After all, the

conviction itself was for possessing drugs that had tested positive for

fentanyl. Given the nature of the conviction, the court could reasonably

assume that the drugs in the house had contained fentanyl.

Mr. Young argues, however, that the affidavit wasn’t reliable. But

Mr. Young hadn’t said anything in district court to question the reliability

of the affidavit. And even now, Mr. Young doesn’t point to any

inconsistencies between the affidavit and other evidence.

Though Mr. Young doesn’t point to any such inconsistencies, he

argues that United States v. Fennell, 65 F.3d 812 (10th Cir. 1995),

disallows reliance on statements

 made outside of court

 by an unobserved witness

 that are neither sworn nor corroborated.

In Fennell, we concluded that the district court shouldn’t have enhanced a

sentence based on an unsworn, unobserved statement unsupported by other

evidence. Fennell, 65 F.3d at 813. “But we have explained in many later

cases how limited Fennell is.” United States v. Alqahtani, 73 F.4th 835,

851 (10th Cir. 2023).

6 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 7

Here, for example, the affiant relied on physical evidence rather than

an out-of-court statement. That physical evidence included bags of blue

pills with markings for M-30 and FTP-Fentanyl. The court could assess

that physical evidence through photos of the bags. And the court could

easily see that the bags contained markings.

Granted, the placement of the bags obscures the lettering in the

photos. So the district court presumably couldn’t tell from the photos

themselves what the markings say. But the court could tell that the bags

contained blue pills and labeling, just as the affidavit had said. In cases

involving similar corroboration, we have distinguished Fennell and upheld

the reliability of unsworn evidence. E.g., United States v. Martinez, 824

F.3d 1256, 1262 (10th Cir. 2016); United States v. Farnsworth, 92 F.3d

1001, 1010 (10th Cir. 1996). For example, we distinguished Fennell,

treating a statement as sufficiently reliable when it relied on a presentence

report that summarized police reports and lacked any apparent

inconsistencies with other evidence. United States v. Dickerson, 678 F.

App’x 706, 714 (10th Cir. 2017) (unpublished). 2 So if the district court had

2 Though Dickerson isn’t precedential, it bears on the obviousness of the alleged error. See United States v. Buendia, 73 F.4th 336, 341 (5th Cir. 2023) (concluding that the need to distinguish a nonprecedential opinion shows that the error wouldn’t have been considered plain); see also United States v. Garcia-Lagunas, 835 F.3d 479, 496 (4th Cir. 2016) (concluding that the district court’s reliance on a nonprecedential opinion suggests that any error wouldn’t have been considered plain). After all, if a Tenth Circuit panel regarded unsworn evidence as sufficiently reliable based on 7 Appellate Case: 23-6094 Document: 61-1 Date Filed: 09/20/2024 Page: 8

erred in viewing the affidavit as reliable, the error wouldn’t have been

obvious.

Conclusion

Given the absence of an obvious error, we conclude that the district

court didn’t commit plain error by sharing the parties’ assumption that the

drugs contained fentanyl. And in the absence of plain error, we affirm the

sentence.

Entered for the Court

Robert E. Bacharach Circuit Judge

summaries of police reports, we would be hard-pressed to regard a district court’s similar approach as an obvious error. 8