United States v. Gary Carrington, Sr. , 560 F. App'x 371 ( 2014 )

Case: 13-40664 Document: 00512579657 Page: 1 Date Filed: 03/31/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40664 FILED
Summary Calendar March 31, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARY LYNN CARRINGTON, SR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:12-CR-104-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Gary Lynn Carrington, Sr., appeals from the sentence imposed following
his guilty plea conviction for being a felon in possession of a firearm. He
contests the application of a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B). Carrington argues that the Government failed to present
reliable evidence that he possessed a firearm in connection with another felony
offense and that the district court relied upon unsubstantiated hearsay to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-40664 Document: 00512579657 Page: 2 Date Filed: 03/31/2014
No. 13-40664
apply the enhancement. He further contends that his rights under the
Confrontation Clause were violated because he was not allowed to confront
witnesses at sentencing.
The Government moves for summary dismissal on the basis that the
appeal is barred by an appeal waiver in Carrington’s written plea agreement.
However, in the absence of the transcripts necessary for a review of whether
the waiver was knowing and voluntary, this court will not consider the issue.
See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992) (noting that party raising
an issue has duty to provide the record relating to that issue); United States v.
Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir. 1973) (same).
Carrington has not offered any evidence to rebut the factual findings in
the presentence report that, during a search of his home, officers found
firearms along with drug paraphernalia and drug-manufacturing equipment.
The proximity of the firearms to the drug paraphernalia and drug-
manufacturing materials makes it plausible for the district court to have found
that Carrington possessed the firearms in connection with another felony
offense. See § 2K2.1(b)(6)(B), cmt. n.14(B)(ii); United States v. Jeffries, 587
F.3d 690, 692 (5th Cir. 2009). Carrington has not shown that, to the extent
that the district court relied on hearsay evidence to impose the enhancement,
the evidence lacked sufficient indicia of reliability. See United States v.
Ramirez, 271 F.3d 611, 612-13 (5th Cir. 2001). His claim that he was denied
the right to confront witnesses at sentencing is foreclosed. See United States
v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). Thus, Carrington has not shown
that the district court clearly erred in assessing a four-level increase pursuant
to § 2K2.1(b)(6)(B). See United States v. Harris, 702 F.3d 226, 229 (5th Cir.
2012), cert. denied, 133 S. Ct. 1845 (2013).
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No. 13-40664
The district court’s judgment is AFFIRMED. The Government’s motion
for summary dismissal of the appeal or, in the alternative, an extension of time
to file an appellate brief is DENIED.
Because Carrington’s counsel, Thomas J. Burbank, raised the instant
sentencing issue without mentioning the existence of the appeal waiver and
did not file a reply brief to address the Government’s arguments regarding the
implications of the waiver for the instant appeal, counsel is WARNED that
such conduct constitutes a waste of judicial resources and will invite sanctions.
See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir. 1999). To be fair,
the government’s failure to present a record sufficient to support the argument
that the waiver applied also altered the otherwise applicable review standards.
The Government is WARNED to support its arguments.
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