Prisons- Transfer;

Appellate Review-Mootness

Boyce v. Ashcroft, 98-1280 (October 1, 2001)

(Order on petition for rehearing)

The transfer of Boyce by the Bureau of Prisons was precisely the relief requested in his § 2241 petition and therefore the case is moot.

HELD: (1) Although the court has discretion to decide subject matter jurisdiction before reaching the issue of mootness, the court found no reason to do so in this case.

Apprendi - Indictment, Mandatory Minimum;

Plain Error Review;

Drug Quantity - Pure or Mixture;

Indictment - Construction

United States v. Lujan, 00-2016 (October 9, 2001)

(Jill M. Wichlens, FPD, Denver, Colorado)

Lujan was indicted on three counts arising from his attempt to sell approximately three pounds of methamphetamine. He entered into a plea agreement, and pleaded guilty to count one, which charged him with conspiracy to possess more than 50 grams of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and § 846. He was sentenced to 120 months imprisonment, followed by 5 years supervised release. The guideline range was 108 to 135 months. The judge indicated he would impose a 108 month sentence, but when reminded of the 10 year mandatory minimum sentence, the court imposed the 10 year sentence.

HELD: (1) In Apprendi, the Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

(2) In the absence of an objection, review is for plain error.

(3) There is no error under Apprendi. Here, the indictment did specify drug quantity. For Lujan to prevail, he would have to convince the court to extend Apprendi to mandatory minimum sentences.

(4) Section 841(b)(1)(A)(viii) pertains to offenses involving 50 grams or more of methamphetamine, or 500 grams or more of a mixture or substance containing a detectible amount of methamphetamine. Lujan claims the language in the indictment is ambiguous because it could mean either 50 grams of pure methamphetamine or 50 grams of a mixture. If the indictment were construed in the latter way, the mandatory minimum sentence would be 5 years rather than 10 years. When an indictment is attacked for the first time on appeal, the court will construe the indictment in favor of its validity, and construes the indictment to refer to pure methamphetamine. Therefore there was no plain error in sentencing Lujan in accordance with the 10 year minimum mandatory sentence.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA Applies, Death Penalty;

Procedural Bar - Independent and Adequate, Ineffective Assistance;

Instructions - Presumption of Innocence, Parole Ineligibility, Culpability Requirement;

Harmless Error - Brecht Standard in Habeas;

Ineffective Assistance of Counsel - Procedural Bar, Deficient Performance and Prejudice;

Parole Ineligibility (Simmons) - Adequate Instruction;

HAC Aggravator - Sufficient Evidence;

Malice Aforethought - Instructions;

Certificate of Appealibility

McCracken v. Gibson, 00-5127 (October 10, 2001)

McCracken was convicted of four counts of first degree murder and sentenced to death. The circuit affirmed the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

HELD: (1) The provisions of the AEDPA apply. The AEDPA sets forth the standard of review.

(2) The trial court instructed the jury that McCracken was presumed not guilty, rather than presumed innocent of the charged crimes. There was no objection. The OCCA concluded the issue was waived. The federal court will not consider issues in habeas that have been defaulted in state court on an independent and adequate state ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice. A state procedural ground is independent if it relies on state law rather than federal law as the basis for the decision. To be adequate, a state's procedural rule must have been firmly established and regularly followed when the purported default occurred. Procedural default precludes federal habeas review of this issue. Even if the circuit addressed the merits, the circuit has previously rejected that such instruction constitutes structural error. Under harmless error analysis in habeas, the court applies the Brecht standard of substantial and injurious effect or influence in determining the jury's verdict. The court found any error harmless.

(3) The OCCA concluded the claim of ineffective assistance of counsel in the penalty phase was waived by failure to raise it on direct appeal. The state's procedural bar is inadequate to preclude federal review of this claim. The Oklahoma procedural bar will apply when trial and appellate counsel differ, and when the ineffectiveness claim can be resolved on the trial record alone. All other ineffectiveness claims are barred only if Oklahoma's special appellate remand rule for ineffectiveness claims is adequately and even-handedly applied.

(4) To establish ineffective assistance of counsel, McCracken must show deficient performance and prejudice. Prejudice is defined as a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Counsel's obligation to conduct reasonable investigation extends to the sentencing phase. There was no evidentiary hearing held in this case, but the transcript suggests that counsel had several strategies for defending McCracken in the penalty phase and made some effort to investigate and present mitigating evidence. McCracken testified in the penalty phase and denied responsibility. His attorney relied heavily on the residual doubt strategy. Trial counsel also outlined, through testimony of McCracken and three relatives, difficulties he faced growing up. The circuit was reluctant to conclude that counsel's performance was constitutionally deficient, but because of the insufficient record, the circuit turned to the question of prejudice and concluded that McCracken was not prejudiced by counsel's failure to present psychological evidence.

(5) The jury sent a note during the first stage of deliberations asking what the term "life imprisonment without possibility of parole" meant. In addition, during the penalty phase, the jury sent a note asking whether life without parole means exactly that, that McCracken would never get out of prison. The trial court only instructed the jury to look at the instructions already given. In Simmons v. South Carolina, the Supreme Court held that where the state puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury that he is parole ineligible. The circuit has considered and rejected identical arguments asserted by other Oklahoma prisoners, and its earlier decision controls because one panel cannot overrule a decision of another panel. In Simmons, the jury was given a choice between life in prison and death which, because the jury might have thought the defendant could be released on parole, created a false choice between sentencing to death and sentencing to a limited period of incarceration. No such false choice was created here where the court instructed the jury on life, life without possibility of parole, and death. This three-way choice fulfills the Simmons requirement that a jury be notified if the defendant is parole ineligible.

(6) The OCCA rejected McCracken's claim of insufficient evidence to support the heinous and cruel aggravator. Both victims were shot in the head and left to languish. One victim was semi-conscious and vomiting when police arrived. The other was still alive and able to tell the police her name when they found her. The OCCA presumably applied the rational fact-finder standard of Jackson v. Virginia, that requires the court to view the evidence in the light most favorable to the prosecution, and determine whether any rational trier of fact could have found the aggravator beyond a reasonable doubt. The circuit concluded the evidence was constitutionally sufficient to support this aggravator.

(7) McCracken tendered a "triggerman" instruction during the penalty phase. The trial court refused to give this instruction, and McCracken urges that the jury was not asked to determine whether he met the death eligibility standards announced in Enmund v. Florida, and Tison v. Arizona. This claim was rejected by the OCCA. Enmund and Tison set forth a minimum level of criminal intent that must be proven by the prosecution before a criminal defendant can be sentenced to death. The culpability requirement of those cases was satisfied. McCracken was charged alternatively with first degree malice murder and felony murder with respect to each of the four victims. However, a review of the information demonstrates that he was charged only with first degree malice murder. The instructions required the jury to find that McCracken acted with malice aforethought. There was no violation of Enmund and Tison. The jury unanimously found that McCracken knowingly created a great risk of death to more than one person. This finding satisfies the culpability requirement.

(8) McCracken asked for an expanded COA to raise an additional issue of whether direct appeal counsel was ineffective in failing to raise the claim about the "presumed not guilty" instruction. In order to receive a COA, McCracken must make a substantial showing of the denial of a constitutional right. Because the court had repeatedly rejected similar arguments asserted by other Oklahoma state prisoners, McCracken cannot demonstrate that the issue is debatable among jurists. Even assuming a COA were granted on the issue, the circuit is bound by prior decisions.

New Trial - Newly Discovered Evidence, Discretion Standard;

Exculpatory (Brady) Evidence - Pretrial Services;

Prosecutorial Misconduct - Pretrial Services;

Witnesses - Impeachment, Pretrial Disclosure, Sequestration;

Discovery - Disclosure of Witnesses;

Apprendi;

Sufficient Evidence

United States v. Combs and United States v. Williams,

00-2018 and 99-2341 (October 12, 2001)

Combs and Williams were convicted of conspiracy to distribute marijuana, and possession with intent to distribute more than 100 pounds of marijuana.

HELD: Combs argues that pretrial services was aware of Redman's marijuana use during trial and, as an agency of the United States government, its knowledge should be imputed to the prosecution. If a new trial motion is based on an alleged Brady violation, review is de novo. A defendant must demonstrate the prosecution suppressed evidence that was favorable to the defendant and was material. Pretrial services has a statutory duty to report any violation of pretrial release conditions to both the court and the United States Attorney. The Supreme Court has interpreted Brady broadly to provide an incentive for the government to initiate procedures and regulations related to the prosecutor's duty to learn of any favorable evidence known to others acting on the government's behalf. One line of cases suggests that pretrial services is not covered by Brady. Another line suggests that Brady should be broadly construed. The court did not resolve the question, concluding that the evidence was not material, and adopted a more restrained approach rather than relying on the conclusion of immateriality. Impeachment evidence satisfies the standard of exculpatory, favorable evidence. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The court was convinced that there is no reasonable probability that the impeachment evidence of Redman's marijuana use would have affected the outcome of Combs' trial.

(2) Alternatively, Combs argues this evidence of Redman's drug use constitutes newly discovered evidence requiring a new trial. Denial of a motion for new trial is reviewed for abuse of discretion. A defendant must show the evidence was discovered after trial, failure to learn of the evidence was not due to his lack of diligence, the new evidence is not merely impeaching, but is material and is of such nature that a new trial will probably produce an acquittal. It was reasonable for the district court to conclude that the evidence tended only to impeach Redman and not exculpate Combs.

(3) The district court refused to allow Simone Gale, a proffered defense witness, to testify. She is Redman's cousin and the mother of Combs' son. She was present in the courtroom during opening statements. After opening statements, Rule 615 was invoked, sequestering witnesses. At some point after that, she left the courtroom. There is no constitutional barrier to trial courts requiring mutual pretrial disclosure of witnesses, and courts have power to sanction violations of reciprocal discovery agreements. Factors in United States v. Russell (10th Cir.) include the reason for the delay in disclosure, whether the delay prejudiced the other party, and feasibility of curing prejudice with a continuance. These factors guide the district court in its discretion. In this case, discovery was governed by an agreement assented to by the parties. Combs failed to seek relief from the discovery instructions. Gale had spoken prior to trial to Combs' counsel without revealing that she had any testimony to give. The district court found the potential prejudice to the government to be significant. The district court did not explicitly consider whether a continuance would cure the prejudice. The district court did not abuse its discretion. The circuit did not reach whether exclusion of Gale's testimony was justified due to violation of Rule 615.

(4) Combs was sentenced to 120 months imprisonment followed by 8 years supervised release. No quantity of marijuana was charged. Apprendi applies to incarceration and supervised release. Combs faced at least 4 years supervised release due to his prior felony. Neither his term of imprisonment nor his supervised release exceeded the statutory maximum. Apprendi does not require reversal where a sentence is equal to the statutory maximum.

(5) Williams did not object to exclusion of Gale's testimony and review is for plain error.

(6) Williams urges the evidence was insufficient to convict him. The court reviews the evidence in the light most favorable to the government.

Motion to Suppress - Review Standard;

Warrant - Affidavit, No Knock, False Statement, Stale Information, Persons Likely to be Armed and Dangerous;

Instructions - Review, In Furtherance Element of § 924(c)

United States v. Basham, 01-5016 (October 22, 2001)

Basham appeals the denial of his motion to suppress, and convictions for possession with intent to distribute methamphetamine, and firearm charges of violations of § 924(c) and § 922(g).

HELD: (1) When reviewing a district court's denial of a motion to suppress, the court accepts the district court's fact findings unless clearly erroneous, and views the evidence in the light most favorable to the government. The ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewed de novo.

(2) The court reviews the sufficiency of the affidavit by looking at the totality of the circumstances, and insuring that the magistrate had a substantial basis for concluding that probable cause existed. To justify a no-knock entry, police must have a reasonable suspicion that knocking and announcing would be dangerous or futile.

(3) The court rejected Basham's argument that the magistrate has a independent duty to inquire about the means of executing the warrant. Reasonableness governs execution of a search warrant, and unnecessary destruction of property may violate the Fourth Amendment, but this is a different question from whether the warrant itself is valid.

(4) It is a violation of the Fourth Amendment for an affiant to knowingly and intentionally, or with reckless disregard for the truth, make a false statement in an affidavit. Where a false statement is made, the search warrant must be voided if the affidavit's remaining content is insufficient to establish probable cause. This prohibition also applies to reckless omissions of material facts.

(5) It would be an over-generalization to conclude that because a person is engaged in the drug trade, that person is likely to be dangerous and possess firearms. But it would not be an over-generalization to conclude that, because a certain person involved in the drug trade exhibited violent tendencies, was armed with a sawed-off shotgun, declared he would not go to prison at any cost, and had a violent criminal history, the same person might possess weapons and hold the same views at the present time.

(6) The determination of whether information is stale depends on the nature of the crime and the length of criminal activity.

(7) The court reviews jury instructions de novo to determine whether, as a whole, they correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards. There is some tension between the standard set forth in Ceballos-Torrez, 218 F.3d 409 (5th Cir.), and this court's decision in Iiland, 254 F.3d 1264. In Iiland, this court concluded that, rather than broadening the statute, the amendment to § 924(c) directed the "in furtherance" requirement to be an even higher standard than that required for the "use" and "carry" prongs. But nothing in Iiland compels rejection of the Ceballos-Torrez factors on which the instruction the court gave was based.

Traffic Stop - Nervous, Consent to Search, Continued Detention;

Motion to Suppress - Review Standard;

Standing - Passenger's Own Detention, De Novo Review;

Detention - Factual Nexus Between Detention and Search, Request Permission to Depart in Vehicle;

Appellate Review - One Panel Cannot Overrule

United States v. DeLuca, 00-1442 (October 25, 2001)

The government appeals from the district court's order suppressing methamphetamine that gave rise to a conspiracy charge against DeLuca. DeLuca was indicted on conspiracy to possess more than 50 grams of actual methamphetamine and two counts of distribution. The distribution charges arose out of events which occurred in April 1999 and are not at issue. The events that gave rise to the conspiracy charge are pertinent. In June 1999, during a New Mexico traffic stop, a state police officer seized a quantity of methamphetamine from the trunk of a car in which DeLuca was a passenger. The district court suppressed the methamphetamine as the fruit of the illegal detention.

The district court found the initial stop was part of a highway safety program and was defensible. The court concluded the stop became indefensible after the driver produced a license and one passenger produced a valid registration, and that nervousness was insufficient. The court concluded that continued detention was illegal, and the link between detention of the car's occupants and discovery of the package in the trunk required that the drugs be suppressed.

HELD: (1) In reviewing the grant of a suppression motion, the court accepts fact findings absent clear error, and reviews the determination of reasonableness de novo. The court also reviews de novo whether the defendant has standing. Without a possessory or property interest in the vehicle, passengers lack standing to challenge the search. However, a defendant may contest the lawfulness of his own detention, and seek to suppress evidence that is found in the vehicle that is the fruit of the defendant's illegal detention. DeLuca concedes he did not have a possessory or property interest in the vehicle, and lacks standing to directly challenge the search of the vehicle.

(2) To suppress evidence of the fruit of his unlawful detention, DeLuca must show the detention violated his Fourth Amendment rights, and that there is a factual nexus between the illegality and challenged evidence. In order to show a factual nexus, at a minimum, DeLuca must adduce evidence to show the evidence sought to be suppressed would not have come to light but for the government's unconstitutional conduct. DeLuca has not met this "but for" test and falls within the holding of Nava-Ramirez. In that case, Nava-Ramirez put on no evidence to demonstrate that had he at some point requested permission or attempted to depart, he would have been able to leave in the vehicle. DeLuca has failed to show that, had he requested to leave the scene of the traffic stop, he would have been able to do so in Boyer's car. Therefore, the car and its owner would have continued to be detained, and the officer would still have found the methamphetamine.

(3) The majority of the panel found it was appropriate to apply a de novo standard to the legal question of standing, and noted one panel cannot overrule Nava-Ramirez even if it were so inclined. Seymour dissented.

Habeas Corpus (28 U.S.C. § 2254) - AEDPA, Death Penalty;

Experts - Funding, Ake Claim, Harmless Error, Voluntary Intoxication;

Inculpatory Statements - Desire for Counsel;

HAC Aggravator - Sufficiency

Toles v. Gibson, 00-6337 (October 26, 2001)

Toles was convicted of two counts of first degree malice aforethought murder.

HELD: (1) The AEDPA and its standards apply.

(2) Toles raised a question about funding under Ake v. Oklahoma for expert testimony to support his voluntary intoxication defense. The OCCA did not address the merits of Toles' Ake claim, so the circuit did under a de novo standard. Ake held that when a state brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure the defendant has a fair opportunity to present his defense. The question is whether the expert's testimony was integral to the building of an effective defense. The circuit considers the effect on Toles' private interest in the accuracy of the trial, the burden on the government, and the probable value of the additional service and risk of error in the proceedings if assistance is not offered. The court assumed without deciding that the denial of funding for this expert's testimony violated due process. The question is whether the error is harmless under the Kotteakos test, asking whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Under Oklahoma law, voluntary intoxication is a defense to first degree malice murder. A detailed account given by the defendant of the circumstances surrounding a murder defeats a claim of voluntary intoxication. Toles gave four video taped statements to the police. The denial of funding for the expert testimony did not have a substantial injurious impact on the first stage verdicts. If Toles is asserting an Ake claim regarding the penalty phase, this was not adequately presented and is procedurally barred.

(3) Toles claims his video taped statements to police violated Miranda v. Arizona. In Edwards v. Arizona, the Supreme Court held that, when an accused has expressed his desire for counsel, he is not subject to further interrogation unless he initiates further communication. Toles' constitutional rights were not violated in connection with the initial statement. Afterward, Toles invoked his right to counsel, and then Toles initiated more communication.

(4) Toles also challenges the heinous and cruel aggravator. The challenge goes to the sufficiency of the evidence, and the rational fact finder standard of Jackson v. Virginia applies. The evidence was more than sufficient.

Bank Fraud;

Amount of Loss - Intended or Actual

United States v. Schild, 01-3002 (October 30, 2001)

(David J. Phillips, FPD, Topeka, Kansas)

Schild pleaded guilty to bank fraud in violation of 18 U.S.C. § 1344. On appeal, he argues his offense level should not have been increased based on loss to the bank. The Vice President had testified that Schild had converted 500 head of cattle at a fair market value of $2,070,000. The district court relied on that figure to arrive at an intended loss of between $200,000 and $350,000. The Vice President testified that the bank did not include the claim for lost cattle in its proof of claim in bankruptcy proceedings, because it had already entered into a separate agreement with the defendant for repayment of these amounts. The district court did not award any restitution due to its inability to determine actual loss. The bank had loaned the defendant money to purchase cattle, and the cattle themselves were collateral.

HELD: (1) The court accepts fact findings unless clearly erroneous and reviews de novo what may be included in computing loss. The government bears the burden of proving loss by a preponderance.

(2) Section 2F1.1, comment (n. 8) states that if an intended loss the defendant was attempting to inflict can be determined, that figure will be used if it is greater than the actual loss.

(3) When actual loss cannot be determined, but the intended loss can be ascertained, the latter is to be used for sentencing purposes. Money repaid to a fraud victim is not included in the loss amount, unless the defendant voluntarily returns the value to the victim as part of the ongoing fraud.

(4) The fact that loans are fully secured is a factor to be taken into account when sentencing is based on actual loss. In this case, when the defendant sold the cattle, he sold the bank's collateral. The mere presence of collateral securing an item fraudulently obtained does not automatically reduce the loss calculation when it can be shown that the defendant intended to permanently deprive the creditor of the collateral through concealment. Intent is a question of fact for the sentencing court to determine.

Revocation of Supervised Release- Concurrent or Consecutive Sentences;

Guideline Interpretation - Policy Statement

United States v. Urcino-Sotello, 01-4035 (October 30, 2001)

(Steven B. Killpack, and Scott Keith Wilson, FPD, Salt Lake City, Utah)

Urcino-Sotello pleaded guilty to illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. At sentencing, he admitted that his reentry also constituted a violation of conditions of a term of supervised release imposed after his prior violation of § 1326. The district court imposed consecutive sentences.

HELD: (1) The court reviews the district court's legal interpretation and application of the guidelines de novo.

(2) Section 7B1.3(f) provides that any term of imprisonment imposed upon revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment. This is a policy statement.

(3) The district court generally has broad discretion to order concurrent or consecutive sentences, when multiple terms of imprisonment are imposed on a defendant at the same time. The policy statements in chapter 7 are advisory only, and do not limit a district court's discretion to impose sentence. However, the district court was required to consider factors listed in 18 U.S.C. § 3553(a), before it imposed a concurrent or consecutive sentence, and was not free to disregard policy statements in the guidelines. The defendant has the burden to come forward with a reason upon which the district court could exercise its discretion to impose concurrent sentences in spite of §7B1.3(f). The district court was mistaken in stating that its discretion was very limited. But the court knew it had discretion, assuming a sufficient reason was advanced by the defendant.

Exculpatory Brady Evidence - Voluntariness of Guilty Plea;

Equitable Estoppel;

Firearm - Enhancement (§2K2.1(b)(5));

Downward Departure - Victim's Conduct

United States v. Walters, 00-4107 (October 31, 20001)

Walters pleaded guilty to illegal possession of a firearm after a domestic violence conviction, in violation of 18 U.S.C. § 922(g)(9).

Salt Lake County Sheriffs Department officers responded to a domestic assault complaint. Avery reported that Walters had assaulted her in the camper, and she had fled to a neighbor's house after he fell asleep. The officers noticed that Avery had various wounds and bruising on her person. She told the officers that Walters had a gun, was out of his mind, and was addicted to methamphetamine. Officers found the truck and camper trailer where Avery had said they would be. The door to the trailer was open, so officers could see he was sleeping. They tried to wake him up by shouting through the open door, and finally entered and placed handcuffs on him for officer's safety. Walters denied possessing a gun, but then admitted he had one under the front seat of the pick up truck. Walters said the pick up was not his. It belonged to Scott Center. Center said that Walters took the truck as leverage to get Center to pay a $2,000 debt he owed Walters, after a payroll check forgery scheme failed. Walters had assaulted Center several times. The gun was owned by Richard Gowers, who said the gun had been missing. His son admitted that he had taken the gun. He in turn loaned the gun to a step brother-in-law, who traded it to another person.

Prior to trial, Walters filed a motion to suppress the gun and his statements. Walters entered his plea of guilty before the court ruled.

A presentence report was prepared. Walters received a four level enhancement for possessing a firearm in connection with a felony, possessing a stolen truck, and a two level enhancement for possessing a stolen firearm. Walters claims the government violated his due process rights, by failing to turn over discovery reports that support those enhancements. Walters asked the court to reduce the sentence under §5K2.10, victim's conduct, based on Center's complicity.

HELD: (1) The court reviews the district court's interpretation of the guidelines de novo and its fact findings for clear error.

(2) The Brady doctrine provides that suppression by the prosecution of evidence favorable to an accused, upon request, violates due process, where the evidence is material either to guilt or punishment. A defendant who has pleaded guilty may thereafter only challenge the voluntariness of his plea. Under some circumstances, a violation of Brady can render a plea involuntary. In the context of an attack on the validity of the plea, the evidence is considered material where there is a reasonable probability that, but for the failure to produce such information, the defendant would not have entered the plea, but instead would have insisted on going to trial. There is no objective evidence that, had Walters had the two reports, he would have insisted on going to trial.

(3) The court reviews de novo whether a violation of a defendant's due process rights has occurred. One agent's report tracing the gun's chain of possession to Walters is not favorable to Walters and not exculpatory. While, with such report, Walters could have impeached a witness, impeachment was irrelevant to the conviction and the stolen gun enhancement. Also, the fact that the government in its open file policy reported that a computer check did not reveal the gun was stolen is not an assurance that the gun was not in fact stolen.

(4) The district court did not commit plain error by failing to invoke the principal of equitable estoppel sua sponte to exclude the subsequent report on the gun being stolen. Also, the district court's Rule 11 colloquy warned Walters that he should not plead guilty on the basis of estimations of the length of sentence.

(5) The district court noted it was troubled by these series of events in which the United States failed to disclose appropriately information the law would have required. But Walters did not file any motion under Rule 16. Nor did he move to withdraw his plea.

(6) The district court applied the enhancement under §2K2.1(b)(5), possession of a firearm in connection with another felony offense, on the basis that the gun had the potential to facilitate the offense of keeping the stolen truck. The "in connection with" requirement is analogous to the "in relation to" requirement of 18 U.S.C. § 924(c)(1).

(7) The district court did not rule on Walters' motion to depart downward based on the victim's conduct under §5K2.10. Walters is entitled to have the district court consider in the first instance whether §5K2.10 applies. Therefore, the court remanded as to that question, but otherwise affirmed.