UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee,

v. No. 00-4429 C ARLOS E DDIE C ARLTON , Defendant-Appellant. Appeal from the United States District Court

for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge. (CR-99-362)

Argued: June 7, 2001

Decided: July 2, 2001 Before NIEMEYER and TRAXLER, Circuit Judges, and

Robert R. BEEZER, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit, sitting by designation. Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,

in which Judge Traxler and Senior Judge Beezer joined. COUNSEL ARGUED: Eric David Placke, Assistant Federal Public Defender,

Greensboro, North Carolina, for Appellant. Paul Alexander Weinman,

Assistant United States Attorney, Winston-Salem, North Carolina, for

Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,

Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,

United States Attorney, Winston-Salem, North Carolina, for Appel-

lee. Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). OPINION NIEMEYER, Circuit Judge:

Carlos Eddie Carlton was convicted for possession of stolen fire-

arms, in violation of 18 U.S.C. 922(j), and the district court sen-

tenced him to 108 months imprisonment. For the first time on appeal,

he challenges his sentence, contending that the district court erred in

enhancing his offense level on the ground that he possessed firearms

"in connection with another felony offense" Ð namely, his larceny of

the same firearms Ð under U.S.S.G. § 2K2.1(b)(5). Finding no plain

error, we affirm. I On October 15, 1999, Lieutenant Jim Mecum, an officer in the For-

syth County (North Carolina) Sheriff's Department, was off-duty and

working on a house near his own residence when he spotted Carlton

carrying firearms and other items out of Mecum's residence. Mecum

jumped into his pickup truck, drove to his house, and rammed Carl-

ton's vehicle as he attempted to escape. Carlton then fled on foot. He

was apprehended minutes later by other Forsyth County deputies,

who found several items in Carlton's possession, including a .45 cali-

ber pistol, .270 caliber rifle, and .30-.30 caliber rifle, which Carlton

admitted stealing from Mecum. Thereafter, Carlton pled guilty to pos-

session of stolen firearms, in violation of 18 U.S.C. 922(j).

In connection with Carlton's sentencing, the presentence investiga-

tion report recommended an offense level of 24 and a criminal history

category of VI for a sentencing range of 100 to 120 months imprison-

ment. That recommendation was based in part upon the attribution of

a four-level offense level enhancement under U.S.S.G. § 2K2.1(b)(5)

for possession of a firearm "in connection with another felony

offense," which was either a State-law felony breaking and entering

or larceny offense relating to the theft of Mecum's weapons. Carlton

made no objection to the presentence report, and the district court,

adopting the findings in that report, sentenced him to 108 months

imprisonment. This appeal followed. II Carlton's principal argument on appeal is that the district court

erred when it enhanced his offense level for possession of the stolen

firearms "in connection with another felony offense" under U.S.S.G. § 2K2.1(b)(5). Because Carlton did not object during sentencing, our

review is for plain error, governed by Rule 52(b) of the Federal Rules

of Criminal Procedure. See United States v. Ford , 88 F.3d 1350, 1355

(4th Cir. 1996); United States v. Grubb , 11 F.3d 426, 440 (4th Cir. 3).

Rule 52(b) represents a "careful balancing of our need to encourage

all trial participants to seek a fair and accurate trial the first time

around against our insistence that obvious injustice be promptly

redressed." United States v. Frady , 456 U.S. 152, 163 (1982). Accord-

ingly, the Rule strictly limits the authority of the appellate courts to

recognize unobjected-to error. See United States v. Olano , 507 U.S. , 731-37 (1993). Such error may be "noticed" only when it is

"plain," affects "substantial rights," id . at 732 (quoting Fed. R. Crim.

P. 52(b)), and "seriously affect[s] the fairness, integrity, or public rep-

utation of judicial proceedings," id . at 736 (quoting United States v. Atkinson , 297 U.S. 157, 160 (1936)).

While perhaps not addressed as frequently as its companion prongs

in the Olano analysis, Rule 52's requirement that the error be "plain"

remains significant. According to the Olano Court, when putative

errors were not brought to the district court's attention in a timely

fashion, only "plain" errors Ð i.e., those that are "clear" or "obvious,"

at least at the time of appeal Ð merit appellate disruption of the final- ity achieved by the criminal trial process. See Olano , 507 U.S. at 734

(citing United States v. Young , 470 U.S. 1, 17 n.14 (1985); Frady , 456

U.S. at 163). This policy is shaped by at least two principles. First,

to encourage defendants to raise all relevant objections before the tri-

bunal that can most easily and efficaciously correct them, the

Supreme Court has admonished that Rule 52(b) is "to be used spar-

ingly, solely in those circumstances in which a miscarriage of justice

would otherwise result." Frady , 456 U.S. at 163 n.14 (citing United

States v. Gerald , 624 F.2d 1291, 1299 (5th Cir. 1980); United States

v. DiBenedetto , 542 F.2d 490, 494 (8th Cir. 1976)). Unless an error

is immediately "clear" or "obvious," those who would argue that the

error's oversight was a "miscarriage of justice" face an uphill battle.

Second, the district courts play a critical role in the development of

unclear matters of federal criminal law. Absent the district courts'

consideration of difficult questions, appellate courts will be less cer-

tain that they have considered the full panoply of relevant arguments

and facts before reaching their own conclusions. Cf. Good News Club

v. Milford Cent. Sch. , U.S.,, 2001 WL 636202, at *22

  (2001) (Souter, J., dissenting) ("[A]n issue as first conceived may

come to be seen differently as a case moves through trial and appeal;

we are most likely to contribute something of value if we act with the

benefit of whatever refinement may come through the course of litiga-

tion").

In this case, Carlton contends that the district court committed

plain error in determining that he possessed a firearm "in connection

with another felony offense," leading to a four-level sentencing

enhancement under U.S.S.G. § 2K2.1(b)(5). Carlton challenges two

aspects of that finding. First, arguing that the district court's determi-

nation that he possessed the firearms in connection with the breaking

and entering and larceny was error, he asserts that the firearms did not

facilitate his breaking and entering or larceny of Mecum's property.

Second, he contends that neither the breaking and entering nor the lar-

ceny constituted a separate felony offense from the offense of convic-

tion Ð possession of the stolen firearms.

With respect to the first point, Carlton notes that we have held that

a court may find that a firearm was used "in connection with" another

felony offense under § 2K2.1(b)(5) if the use or possession "facilitates

or has a tendency to facilitate the felony offense." United States v. Garnett , 243 F.3d 824, 829 (4th Cir. 2001) (citing United States v. Nale , 101 F.3d 1000, 1003-04 (4th Cir. 1996)). He thus contends that

because the role of the firearms in the specified crimes was merely

fortuitous Ð i.e., he happened to pick up the first thing of value he

found in Mecum's house Ð the district court could not have con-

cluded that the weapons were possessed "in connection with" the lar-

ceny and breaking and entering.

But Carlton's very arguments suggest that the application of the

governing legal standard Ð whether the possession of a firearm facil-

itated or potentially facilitated the offense Ð turned largely upon the

specific factual nuances of this case, and the district court's assess-

ment of those nuances is due substantial deference. See 18 U.S.C. 3742(e); Buford v. United States , 121 S. Ct. 1276, 1279-81 (2001);

see also United States v. Terry , 916 F.2d 157, 162 (4th Cir. 1990)

(noting that the district court is entitled to rely upon the facts alleged

in the presentence report). In addition, the Fifth Circuit has held that

in certain circumstances, the larceny of a firearm can constitute its

possession "in connection with" the larceny for the purposes of

§ 2K2.1(b)(5). See United States v. Armstead , 114 F.3d 504, 511-12

(5th Cir. 1997); United States v. Guerrero , 5 F.3d 868, 872 (5th Cir. 3) ("`[I]n connection with' does not necessarily exclude possess-

ing the firearms as fruits of the crime the possessor is contemporane-

ously committing"); see also United States v. Szakacs , 212 F.3d 344,

(7th Cir. 2000) (stating that the court did "not necessarily dis-

agree with" this reasoning in Guerrero ); cf . Garnett , 243 F.3d at 829-

(noting that the exchange of a firearm for drugs constitutes the

"use" of that firearm "in connection with" the drug sale under

§ 2K2.1(b)(5)). Following the reasoning adopted by the Fifth Circuit,

the district court could have determined that Carlton was emboldened

in his misdeeds by his possession of the firearms, prompting him to

steal more items than he otherwise would have, or that the firearms

had the potential to facilitate the crime or his escape. See Armstead ,

F.3d at 511-12; Guerrero , 5 F.3d at 873.

Concededly, we do not know the district court's precise findings on

this point (other than the general finding that the firearms were used

in connection with the larceny and breaking and entering), but this is

so only because Carlton did not raise this objection before the district

court. Because he failed to do so, Rule 52(b) requires that he show not that the sentencing court's calculation might have been problem-

atic, but rather that it was error and the error is plain . And in light of

the precedent from our sister circuit and the lack of a clear statement

from us on the subject, see United States v. Neal , 101 F.3d 993, 998

(4th Cir. 1996) (noting that other circuit cases may be relevant to the

determination whether an error is plain), we cannot say that any error

in the district court's determination that Carlton possessed the stolen

firearms "in connection with" the larceny is sufficiently plain to jus-

tify reversal.

The second prong of Carlton's attack focuses on the language that

follows the "in-connection-with" language in § 2K2.1(b)(5) Ð i.e.,

"another felony offense." He points to a Sixth Circuit decision in

which the defendant, after stealing firearms from a pawn shop, was

convicted of transporting those stolen weapons, in violation of 18

U.S.C. § 922(i), and being a convicted felon in possession of the fire-

arms, in violation of 18 U.S.C. 922(g)(1). See United States v. Sand-

ers , 162 F.3d 396, 397-98 (6th Cir. 1998). The government requested

the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) on the basis

that the defendant had possessed the firearms in connection with the

State-law burglary of the firearms. See id . at 398. The Sixth Circuit

rejected that request, reasoning that because the guideline contem-

plates the possession of the firearm in connection with another felony

offense, it implicitly requires "a finding of a separation of time

between the offense of conviction and the other felony offense, or a

distinction of conduct between that occurring in the offense of convic-

tion and the other felony offense." Id . at 400. Since the court found

that the State-law burglary and the subsequent possession and trans-

portation of the weapons arose "from the same conduct," it concluded

that the enhancement was inappropriate. Id .; accord Szakacs , 212

F.3d at 351. Carlton argues that because the facts in this case parallel

those in Sanders , the district court committed plain error in this case

when it found that at least one of the State-law crimes constituted a

felony offense separate from the federal crime of possession of a

stolen firearm.

Again, however, we fail to see how the error here, if any, was suffi-

ciently "clear" and "obvious" to warrant reversal under Rule 52(b).

The Fifth Circuit has adopted a rule directly contrary to the Sixth Cir-

cuit's, holding that State-law burglary could constitute a felony

offense separate from theft of firearms from a licensed dealer in viola-

tion 18 U.S.C. 922(u), even though precisely the same acts gave rise

to liability for both crimes. See Armstead , 114 F.3d at 511-13. More-

over, two judges in the Sixth Circuit have voiced their disagreement

with the Sanders rule. See United States v. McDonald , 165 F.3d 1032,

7-38 (6th Cir. 1999) (Wellford, J., concurring); Sanders , 162 F.3d

at 403-05 (Kennedy, J., concurring in part and dissenting in part).

And we have not expressed our opinion on this issue. Nor need we

do so here, for it is axiomatic that an error cannot be "clear" or "obvi-

ous" in this Circuit when neither we nor the Supreme Court have spo-

ken on the issue, and other circuits are split. See Neal , 101 F.3d at 998

(citing United States v. Alli-Balogun , 72 F.3d 9, 12 (2d Cir. 1995)).

Accordingly, we conclude that the district court did not commit plain

error when it enhanced Carlton's offense level under U.S.S.G. § 2K2.1(b)(5). III Carlton's counsel has also filed a brief pursuant to Anders v. Cali-

fornia , 386 U.S. 738 (1967), raising two additional objections. After

carefully reviewing the entire record in accordance with Anders , we

find no reversible error.

First, Carlton argues that the district court erred when it assessed

criminal history points under the Sentencing Guidelines for two of

Carlton's juvenile convictions. But the Guidelines specifically pro-

vide that when a defendant is confined for at least 60 days as a result

of a juvenile conviction, two points must be added to the defendant's

criminal history score "if the defendant was released from such con-

finement within five years of his commencement of the instant

offense." U.S.S.G. § 4A1.2(d)(2)(A). Carlton served six months and

days for the two juvenile convictions that were counted by the dis-

trict court, and he was released from confinement for both offenses

on September 26, 1996 Ð within five years of the commission of the

offense in this case in 1999. Accordingly, the district court did not err

when it added two points to Carlton's criminal history score for each

of these convictions. See United States v. Daniels , 929 F.2d 128, 130

(4th Cir. 1991).

Second, Carlton argues that the district court erred when it chose 108 months as the appropriate amount of imprisonment within the

guideline range. Because we have no jurisdiction to review a district

court's decision to impose a particular amount of imprisonment

within the applicable range, we cannot reverse on this basis. See 18

U.S.C. § 3742(a); United States v. John , 935 F.2d 644, 648 n.5 (4th

Cir. 1991) (citing United States v. Porter , 909 F.2d 789, 794 (4th Cir. 0)). IV For the reasons given, the judgment of the district court is AFFIRMED .