Submitted: January 14, 2019
Appeals from United States District Court for the Eastern
District of Missouri - St. Louis
SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Edger pleaded guilty to unlawful possession of a firearm as a
previously convicted felon and conspiracy to possess a
firearm in furtherance of a drug trafficking crime.
See 18 U.S.C. §§ 922(g)(1), 924(o). The
district court sentenced him to the statutory maximum
term of 360 months' imprisonment, which was also the
advisory guideline sentence. On appeal, Edger contends that
the district court erred in applying a cross-reference in the
advisory sentencing guidelines and by allowing the government
to breach a plea agreement when it refused to move for a
downward departure under the guidelines. We conclude there
was no reversible error, and we therefore affirm.
a convicted felon, gave a nine-millimeter firearm to an
acquaintance, Dwane Taylor, in exchange for Taylor's .22
caliber firearm. Edger understood that Taylor intended to use
the nine-millimeter gun in connection with drug trafficking
activity and to retaliate against a woman who had stolen
property from Taylor. Taylor eventually used the firearm to
kill that woman.
jury charged Edger with unlawfully possessing the .22 caliber
firearm as a convicted felon. A separate indictment charged
Edger and Taylor with conspiracy to possess "one or more
firearms" in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(o). Edger pleaded guilty to
both charges, and the cases were consolidated for sentencing.
determine a base offense level under the sentencing
guidelines, the district court applied the cross-reference at
USSG § 2K2.1(c)(1)(B). That provision states that if the
defendant "transferred a firearm . . . cited in the
offense of conviction with knowledge . . . that it would be
used . . . in connection with another offense," and if
"death resulted," then the court should apply the
base offense level in "the most analogous offense
guideline" concerning homicide. USSG §
2K2.1(c)(1)(B). The district court determined that because
the nine-millimeter firearm formed the basis for Edger's
conviction under § 924(o), and Edger transferred the
firearm to Taylor with knowledge that he would use it to
retaliate against a woman who supposedly had wronged him, the
applicable guideline was USSG § 2A1.1 for first degree
applying the base offense level, applicable adjustments, and
criminal history score, Edger's advisory guideline
sentence was 360 months' imprisonment, the statutory
maximum sentence. The government had promised conditionally
to move for a downward departure as part of a plea agreement,
but ultimately refused to file the motion after determining
that Edger's post-agreement conduct made him ineligible.
The district court then sentenced Edger in accordance with
the advisory guidelines to a term of 360 months.
first challenges the district court's application of the
cross-reference under § 2K2.1(c)(1)(B). He complains
that the nine-millimeter firearm that he transferred to
Taylor was not "cited in the offense of
conviction," so the district court should not have
applied the cross-reference to the murder guideline. He
argues that a firearm is not "cited in the offense of
conviction" unless the indictment identifies the firearm
by make, caliber, type, or some other characteristic. On this
theory, since the count charging a violation of § 924(o)
stated only that Edger and Taylor conspired to possess
"one or more firearms," and did not specifically
identify the nine- millimeter firearm, the cross-reference
under § 2K2.1(c)(1)(B) cannot apply. We review the
district court's legal conclusion de novo.
See United States v. Jenkins, 792 F.3d 931, 935 (8th
guideline provides that the firearm must be "cited in
the offense of conviction," not "cited in the
indictment," so Edger's focus is too narrow. The
"offense of conviction" is ultimately identified by
code section in the judgment. But the phrase encompasses more
broadly the offense conduct giving rise to the conviction,
and the court may refer to the entire record of the case to
determine whether a firearm is "cited" in the
offense. "Cite" means "to bring to mind,"
"refer to," or "bring forward, mention, [or]
call to another's attention." Webster's
Third New International Dictionary 411 (2002). It is
clear from the record as a whole that Edger was convicted of
violating § 924(o) by conspiring to possess the
nine-millimeter firearm that he transferred to Taylor. In
establishing a factual basis for his guilty plea under §
924(o), Edger admitted that he knew Taylor was involved in
drug trafficking, that he agreed to transfer the
nine-millimeter firearm to Taylor, and that he understood
that Taylor would use the firearm in connection with drug
trafficking activities. The nine-millimeter firearm was
therefore "cited in the offense of conviction,"
because the record refers to that gun as the basis for the
§ 924(o) conviction.
commentary for § 2K2.1(c)(1)(B) further illuminates the
meaning of "cited in the offense of conviction."
The cross-reference applies where a defendant is convicted of
unlawfully possessing a shotgun and used the same shotgun in
connection with a robbery eight months earlier. USSG §
2K2.1, comment. (n.14(E)(i)). But where the defendant is
convicted of unlawfully possessing a shotgun and used a
handgun in connection with a robbery eight months
earlier, the cross-reference does not apply, because the
handgun was not "cited in the offense of
conviction." Id. comment. (n.14(E)(ii)). The
illustration's generic references to "shotgun"
and "handgun" suggest that whether a firearm is
"cited in the offense of conviction" depends on
whether the firearm formed the basis for the conviction, not
whether the firearm was specifically identified in the
charging document. Accord United States v. Aberant,
741 Fed.Appx. 905, 908 (4th Cir. 2018) (per curiam). We
therefore conclude that the district court did not err in
calculating the advisory guideline sentence.
second argument is that the district court erred by allowing
the government to breach the plea agreement when it refused
to move for a downward departure under the guidelines. Edger
failed to raise this claim in the district court, so we
review for plain error. United States v. Johnson,
241 F.3d 1049, 1052 n.1 (8th Cir. 2001). To prevail, Edger
must show that there was an obvious error that affected his
substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732-37 (1993).
When a defendant's claim of error is subject to
reasonable dispute, there is no plain error. Puckett v.
United States, 556 U.S. 129, 135 (2009).
plea agreement stated that as of the date of the agreement,
Edger "ha[d] substantially assisted the government, and
the government will file a motion for downward
departure." But the agreement also enumerated actions
that would render Edger's assistance non-substantial and