United States v. Clifford ( 2021 )

Appellate Case: 21-8004 Document: 010110611883 Date Filed: 11/30/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2021
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Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-8004
(D.C. No. 1:20-CR-00039-SWS-3)
TERRY WILLIAM CLIFFORD, (D. Wyo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HOLMES, KELLY, and MATHESON, Circuit Judges.
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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
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 21-8004 Document: 010110611883 Date Filed: 11/30/2021 Page: 2
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).
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Appellate Case: 21-8004 Document: 010110611883 Date Filed: 11/30/2021 Page: 3
Separately, we find that Mr. Clifford invited any error. Mr. Clifford’s counsel
provided the factual nexus between the possession of a firearm and the conspiracy to
distribute methamphetamine. Mr. Clifford subsequently adopted his counsel’s
statement and the district court accepted these statements. Mr. Clifford thus invited
error and may not now assert that the factual basis of the guilty plea was insufficient.
See United States v. Edward J., 224 F.3d 1216, 1222 (10th Cir. 2000).
Finally, even if we consider Mr. Clifford’s claim on plain error review, Mr.
Clifford failed to show that the district court erred, let alone that the record fails to
provide a factual basis for the plea. See United States v. Sanchez, 13 F.4th 1063,
1077 (10th Cir. 2021); United States v. Carillo, 860 F.3d 1293, 1300 (10th Cir.
2017). Here, both Mr. Clifford’s statements and the prosecutor’s statement provide
an ample factual basis for his guilty plea. See United States v. Landeros-Lopez, 615
F.3d 1260, 1263 (10th Cir. 2010).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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