United States v. Edger, 18-1594

Decision Date23 May 2019
Docket NumberNo. 18-1594, No. 18-1596,18-1594
Parties UNITED STATES of America, Plaintiff - Appellee, v. Joe EDGER, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Joe Edger, Defendant - Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Sayler Anne Ault Fleming, Thomas S. Rea, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Eastern District of Missouri, Saint Louis, MO, for Plaintiff - Appellee.

Joe Edger, Pro Se.

Henry M. Miller, Jr., HENRY M. MILLER, ATTORNEY AT LAW, Saint Louis, MO, for Defendant - Appellant.

Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.

COLLOTON, Circuit Judge.

Joe Edger pleaded guilty to unlawful possession of a firearm as a previously convicted felon and conspiracy to possess a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. §§ 922(g)(1), 924(o). The district court1 sentenced him to the statutory maximum term of 360 months’ imprisonment, which was also the advisory guideline sentence. On appeal, Edger contends that the district court erred in applying a cross-reference in the advisory sentencing guidelines and by allowing the government to breach a plea agreement when it refused to move for a downward departure under the guidelines. We conclude there was no reversible error, and we therefore affirm.

Edger, a convicted felon, gave a nine-millimeter firearm to an acquaintance, Dwane Taylor, in exchange for Taylor’s .22 caliber firearm. Edger understood that Taylor intended to use the nine-millimeter gun in connection with drug trafficking activity and to retaliate against a woman who had stolen property from Taylor. Taylor eventually used the firearm to kill that woman.

A grand jury charged Edger with unlawfully possessing the .22 caliber firearm as a convicted felon. A separate indictment charged Edger and Taylor with conspiracy to possess "one or more firearms" in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(o). Edger pleaded guilty to both charges, and the cases were consolidated for sentencing.

To determine a base offense level under the sentencing guidelines, the district court applied the cross-reference at USSG § 2K2.1(c)(1)(B). That provision states that if the defendant "transferred a firearm ... cited in the offense of conviction with knowledge ... that it would be used ... in connection with another offense," and if "death resulted," then the court should apply the base offense level in "the most analogous offense guideline" concerning homicide. USSG § 2K2.1(c)(1)(B). The district court determined that because the nine-millimeter firearm formed the basis for Edger’s conviction under § 924(o), and Edger transferred the firearm to Taylor with knowledge that he would use it to retaliate against a woman who supposedly had wronged him, the applicable guideline was USSG § 2A1.1 for first degree murder.

After applying the base offense level, applicable adjustments, and criminal history score, Edger’s advisory guideline sentence was 360 months’ imprisonment, the statutory maximum sentence. The government had promised conditionally to move for a downward departure as part of a plea agreement, but ultimately refused to file the motion after determining that Edger’s post-agreement conduct made him ineligible. The district court then sentenced Edger in accordance with the advisory guidelines to a term of 360 months.

Edger first challenges the district court’s application of the cross-reference under § 2K2.1(c)(1)(B). He complains that the nine-millimeter firearm that he transferred to Taylor was not "cited in the offense of conviction," so the district court should not have applied the cross-reference to the murder guideline. He argues that a firearm is not "cited in the offense of conviction" unless the indictment identifies the firearm by make, caliber, type, or some other characteristic. On this theory, since the count charging a violation of § 924(o) stated only that Edger and Taylor conspired to possess "one or more firearms," and did not specifically identify the nine-millimeter firearm, the cross-reference under § 2K2.1(c)(1)(B) cannot apply. We review the district court’s legal conclusion de novo . See United States v. Jenkins , 792 F.3d 931, 935 (8th Cir. 2015).

The guideline provides that the firearm must be "cited in the offense of conviction," not "cited in the indictment," so Edger’s focus is too narrow. The "offense of conviction" is ultimately identified by code section in the judgment. But the phrase encompasses more broadly the offense conduct giving rise to the conviction, and the court may refer to the entire record of the case to determine whether a firearm is "cited" in the offense. "Cite" means "to bring to mind," "refer to," or "bring forward, mention, [or] call to another’s attention." Webster’s Third New International Dictionary 411 (2002). It is clear from the record as a whole that Edger was convicted of violating § 924(o) by conspiring to possess the nine-millimeter firearm that he transferred to Taylor. In establishing a factual basis for his guilty plea under § 924(o), Edger admitted that he knew Taylor was involved in drug trafficking, that he agreed to transfer the nine-millimeter firearm to Taylor, and that he understood that Taylor would use the firearm in connection with drug trafficking activities. The nine-millimeter firearm was therefore "cited in the offense of conviction," because the record refers to that gun as the basis for the § 924(o) conviction.

The commentary for § 2K2.1(c)(1)(B) further illuminates the meaning of "cited in the offense of conviction." The cross-reference applies where a defendant is convicted of unlawfully possessing a shotgun and used the same shotgun in connection with a robbery eight months...

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5 cases
  • United States v. Alderete
    • United States
    • U.S. District Court — District of New Mexico
    • July 19, 2021
    ...of unlawfully possessing a shotgun and used the same shotgun in connection with a robbery eight months earlier." United States v. Edger, 924 F.3d 1011, 1014 (8th Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 420, 205 L.Ed.2d 235 (2019). The Eighth Circuit has concluded that the cross-......
  • United States v. Alderete
    • United States
    • U.S. District Court — District of New Mexico
    • July 19, 2021
    ...of unlawfully possessing a shotgun and used the same shotgun in connection with a robbery eight months earlier." United States v. Edger, 924 F.3d 1011, 1014 (8th Cir. 2019), cert. denied, 140 S. Ct. 420 (2019). The Eighth Circuit has concluded that the cross-reference does not apply, howeve......
  • Edger v. United States
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 2, 2023
    ...was therefore “cited in the offense of conviction,” because the record refers to that gun as the basis for the § 924(o) conviction. Edger, 924 F.3d at 1014. There was no ambiguity or uncertainty in the language or structure of § 2K2.1(c)(1)(B), and applying it here did not involve a “guess”......
  • Edger v. United States
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 2, 2023
    ...924(o). Alleging error in sentencing, Edger appealed the judgments. The Eighth Circuit Court of Appeals affirmed, United States v. Edger, 924 F.3d 1011 (8th Cir.), and the Supreme Court denied certiorari, 140 S.Ct. 420 (2019). Edger now moves to vacate, set aside, or correct his sentence un......
  • Request a trial to view additional results
1 books & journal articles
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...(7th Cir. 2017) (no downward departure absent government motion because defendant did not allege unconstitutional motive); U.S. v. Edger, 924 F.3d 1011, 1015 (8th Cir. 2019) (no downward departure absent government motion because defendant likely breached plea agreement); U.S. v. Flores, 55......

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