UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
TERRY WILLIAM CLIFFORD, Defendant-Appellant.
United States Court of Appeals, Tenth Circuit
November 30, 2021
(D.C. No. 1:20-CR-00039-SWS-3) (D. Wyo.)
Before HOLMES, KELLY, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT [*]
PAUL J. KELLY, JR. CIRCUIT JUDGE
Defendant-Appellant Terry William Clifford appeals from his conviction for possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). He challenges whether there was an adequate factual basis for his plea. Fed. R. Crim. P. 11(b)(3). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
Background
In May 2020, Mr. Clifford was indicted for various offenses. The parties entered into a plea agreement in which Mr. Clifford pled guilty to the above offense
and conspiracy to distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1) &(b)(1)(A). 2 R. 10-11.
The government filed a prosecutor's statement detailing the facts surrounding Mr. Clifford's offenses. 2 R. 17-22. At the change of plea hearing, the court was unsatisfied with Mr. Clifford's answers regarding possession of a firearm. See 3 R. 31-32. Mr. Clifford's counsel explained that the firearm was found in a backpack at the same time that Mr. Clifford was found in possession of drugs. 3 R. 32. Mr. Clifford confirmed these facts. 3 R. 32. The court again confirmed: "And during this time that you possessed the firearm, you were also involved in drug trafficking activity?" 3 R. 32. Mr. Clifford answered in the affirmative. 3 R. 33. Both the government and Mr. Clifford's counsel agreed that a sufficient factual basis was established. 3 R. 33.
Discussion
Ordinarily, we review the sufficiency of the factual basis for a guilty plea for clear error. United States v. Moran, 452 F.3d 1167, 1171-72 (10th Cir. 2006). But Mr. Clifford failed to object to the factual basis of his guilty plea at the district court and did not argue for plain error review in his opening brief. He belatedly argued for plain error in his reply brief. Aplt. Reply Br. at 8. Consequently, under the circumstances of this case, we find that Mr. Clifford waived his claim. See United States v. Walker, 918 F.3d 1134, 1153 (10th Cir. 2019); United States v. Leffler, 942 F.3d 1192, 1198 (10th Cir. 2019).
Separately, we find that Mr. Clifford invited any error. Mr. Clifford's counsel provided the factual nexus between the possession of a firearm and...
