United States v. Southard ( 2022 )

Appellate Case: 21-6035 Document: 010110641221 Date Filed: 02/04/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-6035
(D.C. No. 5:20-CR-00118-R-1)
JERRY SCOTT SOUTHARD, II, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
Jerry Scott Southard, II, pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 84 months in prison. He
challenges the procedural reasonableness of his sentence, arguing the district court
improperly applied a four-level enhancement under United States Sentencing
Guideline (“U.S.S.G.”) § 2K2.1(b)(6)(B). 1 Exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm.
*
This order and judgment is not binding precedent, except under the doctrines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.
1
At oral argument, Mr. Southard confirmed this is the only issue for our
review and abandoned any other challenges to his sentence. Oral Arg. at 0:21-0:44,
2:38-2:47.
Appellate Case: 21-6035 Document: 010110641221 Date Filed: 02/04/2022 Page: 2
I. BACKGROUND
A. Factual History
On February 23, 2020, Oklahoma City police offers stopped a Chevrolet
Silverado driven by Mr. Southard. During the stop, Mr. Southard disclosed he had a
firearm. The officers found an automatic pistol and illegal drugs—including heroin
and methamphetamine—on his person. Mr. Southard admitted he was a felon and
was aware it was unlawful for him to carry a firearm.
The police determined that the Silverado had been stolen at gunpoint the
previous day. Mr. Southard said he had traded his Cadillac Escalade for the
Silverado from his acquaintance, Flisha Mehan. Ms. Mehan and two accomplices
had stolen the Silverado earlier that day. In an interview with the police, Ms. Mehan
confirmed that she and her accomplices traded the Silverado to Mr. Southard for the
Escalade.
B. Procedural History
A federal grand jury indicted Mr. Southard for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Southard pled guilty to that
charge.
The Presentence Investigation Report (“PSR”) recommended an offense-level
enhancement under § 2K2.1(b)(6)(B), which provides for a four-level increase “[i]f
the defendant . . . used or possessed any firearm or ammunition in connection with
another felony offense.” “[A]nother felony offense” is “any federal, state, or local
offense . . . punishable by imprisonment for a term exceeding one year, regardless of
2
Appellate Case: 21-6035 Document: 010110641221 Date Filed: 02/04/2022 Page: 3
whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1
cmt. n.14(C).
The PSR found that Mr. Southard possessed a firearm in connection with the
felony offenses of (1) drug possession with a prior state conviction under 21 U.S.C.
§ 844(a) and (2) unauthorized use of a vehicle under Okla. Stat. tit. 47, § 4-102(A). 2
Mr. Southard objected to the enhancement, arguing (1) his drug possession could not
amount to “a felony offense under an enhanced federal statute that was never
charged,” ROA, Vol. III at 10, and (2) he did not know the Silverado was stolen, id.
at 10-11.
At sentencing, the district court overruled Mr. Southard’s objection. It first
determined that Mr. Southard’s drug possession at the traffic stop, coupled with his
2016 state court conviction for possession of a controlled dangerous substance under
Okla. Stat. tit. 63, § 2-402, was a felony under 21 U.S.C. § 844(a). Possession under
§ 844(a) is a felony if the defendant has a prior conviction of a state “drug, narcotic,
or chemical offense” that “proscribes the possession . . . [of] any substance . . .
prohibited under this subchapter.” 21 U.S.C. § 844(a), (c).
2
This provision states:
A person not entitled to possession of a vehicle who, without the
consent of the owner and with intent to deprive the owner, temporarily or
otherwise, of the vehicle or its possession, takes, uses or drives the vehicle
shall, upon conviction, be guilty of a felony punishable by imprisonment in the
custody of the Department of Corrections for a term not to exceed two (2)
years.
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The district court also determined that Mr. Southard’s unauthorized use of the
Silverado was a felony under Oklahoma law and provided a basis for the
enhancement. The court rejected Mr. Southard’s argument that he did not know the
Silverado was stolen, stating:
Well, I’m going to overrule the [enhancement] objection in
any event. I’m satisfied from the authority that the
defendant had—his possession of drugs, coupled with his
prior convictions, made this qualify for the four-point
enhancement. And also, frankly, I don’t believe [Mr.
Southard’s] explanation [for possessing the stolen vehicle.]
Here is a vehicle that was stolen the day before and he has
it. And with his track record, I’m satisfied he knew that
was a stolen vehicle. So I’m going to overrule the
objection.
ROA, Vol. III at 12.
After considering Mr. Southard’s criminal history and the factors set forth in
18 U.S.C. § 3553(a), the district court imposed an above-guidelines sentence of
84 months in prison.
II. DISCUSSION
Mr. Southard concedes he possessed a firearm. Aplt. Br at 5. He contests
whether there was “another felony offense.” Id. at 24-25. In his opening brief, he
makes only one argument, and does so for the first time on appeal. He contends that
his 2016 state drug conviction did not make his drug possession in this case a felony
under 21 U.S.C. § 844(a) because the Oklahoma drug statute underlying his state
conviction included drugs that were not listed as controlled substances on the federal
drug schedule.
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We need not consider this argument because we can affirm the district court’s
§ 2K2.1(b)(6)(B) sentencing enhancement based on Mr. Southard’s unauthorized use
of the Silverado. Mr. Southard fails in his opening brief to address this ground for
the four-level increase and therefore has waived the issue. See Platt v. Winnebago
Indus., Inc., 960 F.3d 1264, 1271 (10th Cir. 2020) (“[F]ailure to raise an issue in an
opening brief waives that issue . . . .” (quotations omitted)); Wyoming v. Livingston,
443 F.3d 1211, 1216 (10th Cir. 2006) (“Wyoming did not address this issue in its
opening appellate brief. The issue is therefore waived.”); Silverton Snowmobile Club
v. U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006) (“[W]e have held that the
failure to raise an issue in an opening brief waives that issue.” (quotations and
alterations omitted)); see also U.S. v. RaPower-3, LLC, 960 F.3d 1240, 1250 (10th
Cir. 2020) (“When an appellant does not challenge a district court’s alternate ground
for its ruling, we may affirm the ruling.” (quoting Starkey ex rel A.B. v. Boulder
Cnty. Soc. Servs., 569 F.3d 1244, 1252 (10th Cir. 2009))).
In his reply brief, Mr. Southard “concedes he cannot establish harm as to the
[district court’s] ruling” if the district court also found that his unauthorized use of a
vehicle was a felony offense. Aplt. Reply Br. at 5. At oral argument, his counsel
said, “If [the court] was making an alternative holding . . . [that] this four-level
enhancement applies because . . . [Mr. Southard] fit the elements for felony
possession of a stolen vehicle . . . it’s over for Mr. Southard.” Oral Arg. at
1:54-2:30. We conclude the district court found that Mr. Southard’s possession of a
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stolen vehicle was a felony offense and was an alternative basis for the
§ 2K2.1(b)(6)(B) enhancement.
As to whether his firearm possession was “in connection with” the
unauthorized use of the Silverado, that requirement was satisfied because his firearm
“had the potential to facilitate his possession of the stolen vehicle.” United States v.
Sanchez, 22 F.4th 940, 942 (10th Cir. 2022); see also Oral Arg. at 7:30-7:41
(acknowledging that Sanchez resolves this requirement).
III. CONCLUSION
We affirm Mr. Southard’s sentence.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
6