1The Honorable Gregory W. Carman, Chief Judge, United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2869

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Carl J. Curtis, * [UNPUBLISHED]

*

Appellant. *

___________

Submitted: April 10, 2001

Filed: June 6, 2001

___________

Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and CARMAN,1

Chief Judge.

___________

PER CURIAM.

Carl J. Curtis appeals the conviction entered and the sentence imposed following

his plea of guilty to one count of possession with intent to distribute methamphetamine

and one count of the illegal possession of a firearm. We affirm the conviction, but we

vacate the sentence and remand to the district court for further proceedings. 
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I.

In January, 2000, a grand jury in the Northern District of Iowa returned a

superseding indictment charging Curtis with six counts related to the distribution of

illegal drugs. On the second day of his ensuing jury trial, Curtis reached an agreement

with the government and pled guilty to one count of possession with intent to distribute

methamphetamine within 1,000 feet of a school, a violation of 21 U.S.C. § 841(a)(1)

and § 860, and to one count of possession of a firearm by a prohibited person, a

violation of 18 U.S.C. § 922. Following the preparation of a Presentence Investigation

Report (PSR), the court sentenced Curtis to 120 months of imprisonment, ten years of

supervised release, and a $200 special assessment. 

On appeal, Curtis argues that his plea was invalid, alleges that he received the

ineffective assistance of counsel at sentencing, and contends that the district court

improperly calculated his sentence. Additionally, in a pro se supplemental brief, Curtis

alleges that the government breached his plea agreement. 

II. 

We first address Curtis’s challenge to the validity of his guilty plea. To be valid,

a guilty plea must be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S.

238, 242-43 (1969); United States v. Martinez-Cruz, 186 F.3d 1102, 1104 (8th Cir.

1999). Curtis contends that his plea was unintelligent and therefore constitutionally

invalid because he was provided with “confusing and incomplete information”

regarding the potential sentence on his conviction for possession with intent to

distribute methamphetamine. Although the transcript of the plea hearing reflects some

discussion of a ten-year statutory minimum sentence, the district court explicitly

informed Curtis on at least two separate occasions that he was facing a minimum of

five years in prison. On both occasions, Curtis responded by saying that he understood
2Curtis was sentenced under the version of the United States Sentencing

Guidelines in effect on November 1, 1998.

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the minimum sentence. Moreover, in his pro se brief Curtis indicates that he

understood the terms of the plea agreement and the potential sentence he was facing.

Accordingly, we reject Curtis’s contention that his plea was not intelligently entered.

Curtis next contends that he received the ineffective assistance of counsel at

sentencing. In light of our holding that Curtis is entitled to be resentenced, this claim

may very well be moot. To the extent that it is not moot, it should be raised in a

collateral proceeding. See United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir.

1996); Martinez-Cruz, 186 F.3d at 1105. 

Third, Curtis argues that the district court erred in calculating his sentence.2 The

court increased Curtis’s base offense level from 28 to 30 pursuant to U.S.S.G. §

2D1.1(b)(1), which provides a two-level increase where “a dangerous weapon

(including a firearm) was possessed.” Similarly, the court concluded that because

Curtis possessed a firearm, he was ineligible for the safety valve provision in U.S.S.G.

§ 5C1.2.

Curtis concedes that the police located three shotguns and one rifle in a locked

gun safe in his residence. He contends, however, that because the guns were unloaded

and were used solely for hunting purposes, the district court erred in finding a sufficient

nexus between the weapons and the illegal drug activities. We disagree. A district

court’s finding that a weapon is related to a criminal offense will be overturned only if

it is clearly erroneous. Wright v. United States, 113 F.3d 133, 134 (8th Cir. 1997). To

sustain a weapons enhancement, the government need only show (1) that the firearm

was present, and (2) that it was not clearly improbable that the weapon had a nexus

with the criminal activity. United States v. Tyler, 238 F.3d 1036, 1040-41 (8th Cir.

2001); United States v. Bost, 968 F.2d 729, 731-32 (8th Cir. 1992). Here, the district
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court heard testimony that prescription pills packaged in a manner consistent with

resale were located in the safe with the weapons and that methamphetamine had

previously been stored in the safe where the guns were located. Accordingly, we

cannot say that the court clearly erred in finding a sufficient nexus between the

weapons and the crimes. 

 

Finally, Curtis argues, pro se, that the government breached his plea agreement

by misrepresenting terms of the deal to the court. Although the government contends

that it did not breach the agreement, it concedes that a sentencing error occurred below.

Specifically, the parties agree that although Curtis admitted responsibility for 50 grams

of a mixture of methamphetamine, the PSR erroneously stated that he had stipulated to

50 grams of actual methamphetamine. Accordingly, when the district court adopted the

findings of the PSR, it applied a statutory minimum sentence of ten years of

imprisonment, rather than the 5-year statutory minimum applicable to a quantity of 50

grams of methamphetamine mix. See 21 U.S.C. § 841(b)(1)(B). 

The record reflects the Assistant United States Attorney and Curtis’s counsel

failed to bring this error to the court’s attention. We therefore review for plain error.

“Under plain error review, an error not identified by a contemporaneous objection is

grounds for reversal only if the error prejudices the substantial rights of the defendant

and would result in a miscarriage of justice if left uncorrected.” United States v.

Fountain, 83 F.3d 946, 949 (8th Cir. 1996). Here, the district court believed that Curtis

was subject to a 120-month statutory minimum sentence. Assuming that the parties

have correctly described the terms of the plea agreement and that the PSR has

otherwise correctly calculated Curtis’s sentence, the district court would have been

free to sentence Curtis to as little as 97 months in prison had it not been for the error

in the PSR. We thus conclude that Curtis’s substantial rights have been affected. See

United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (defendant’s “substantial

rights were clearly affected because, as he was sentenced, he would end up serving 17

more months in prison than he might have served had he been sentenced absent the
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error”). We further believe that such an error seriously affected the fairness of the

sentencing proceedings. Id.

Accordingly, we affirm Curtis’s conviction. We vacate his sentence, however,

and remand the case so that the district court may examine the terms of the original plea

agreement, recalculate the correct sentencing range under the Guidelines, and then

enter whatever sentence it deems appropriate in light of the correct statutory minimum.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.