* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-2255

v. (D. New Mexico) QUINCY DEANDRE KELLY,

Defendant - Appellant. (D.C. No. CR-97-497-HB)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Quincy Deandre Kelly pleaded guilty to one count of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and a jury-2-

convicted him of a related charge of using or carry ing a gun in connection with a drug crime, in violation of 18 U.S.C. § 924. In th is appeal from the sentence imposed, Kelly contends that the district court mis calculated his offense level reduction for acceptance of responsibility on the § 841(a)(1) offense. We affirm. On July 23, 1997, Kelly was a passenger in a car dr iven by a friend. At a border control point in New Mexico, agents discover ed a duffel containing marijuana in the car’s trunk, and Kelly admitted ow nership of a firearm located in a duffel behind the front seat. However, he claime d the firearm was unrelated to the drug crime. Both the driver and Kelly were ind icted on drug and related firearm charges. Trial was initially set for Octob er 15, 1997. Following a government motion for a continuance in order to fac ilitate plea negotiations, the trial was reset for December 9, 1997. Kelly’s code fendant entered a plea agreement in late October. On November 5, Kelly entered a plea to the drug trafficking charge only. Unlike his codefendant, K elly’s plea did not result from an agreement with the government. On November 12, Kelly’s first jury trial on the guncharge began. When the jury could not reach a verdict, the court decla red a mistrial. Subsequently, on December 9, a second jury trial commenced, and this time a guilty verdict was returned. The subsequent Presentence InvestigationReport (PSR) recommended a two point offense level reduction for acceptance of responsibility related to1 In its responsive brief, the government challenges Kelly’s entitlement to

the two point reduction for acceptance of responsib ility. Because the government failed to make this argument before the district co urt, we do not consider it. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). -3- Kelly’s guilty plea on his § 841 conviction. Witho ut objection from either Kelly or the government, 1 the district court accepted the PSR recommendation . The court then sentenced Kelly to twenty-one months und er the guidelines on the drug conviction, and to a consecutive statutory term of five years on the § 924 conviction. Kelly now appeals, contending that the district court committed plain error when it failed to accord him the full three p oint offense level reduction related to his timely guilty plea on the § 841 char ge. Pursuant to USSG § 3E1.1(a), if the defendant clear ly demonstrates acceptance of responsibility for his offense, the d istrict court shall “decrease the offense level by 2 levels.” Id. Additionally, if the defendant qualifies for a reduction under subsection (a), and the offense lev el before that reduction is sixteen or greater, “and the defendant has assistedauthorities in the investigation or prosecution of his own misconduct by . . . timel y notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to all ocate its resources efficiently,” the court shall “decrease the offense level by 1 ad ditional level.” USSG § 3E1.1(b).-4-

Kelly’s entitlement to an additional reduction for acceptance of responsibility under subsection (b) involves resolutions of fact which we would review under a clearly erroneous standard, had Kell y properly objected at sentencing. See United States v. McCollom , 12 F.3d 968, 972 (10th Cir. 1993). However, as noted, Kelly failed to object to the PS R and otherwise failed to raise his entitlement to the additional reduction before the district court. Therefore, we review the district court’s application of the sent encing guidelines for plain error only. Fed. R. Crim. P. 52(b); see United States v. Jones , 80 F.3d 436, 438 (10th Cir. 1996). Under the plain error standard, Kelly must show clear or obvious error that affected his substantial rights and seri ously affected the integrity of the judicial proceedings. See Johnson v. United States , 520 U.S. 461, 467 (1997). Although a court’s erroneous resolution of a legal question which results in the misapplication of a guideline provision may constitute plain error, see United States v. Ivy , 83 F.3d 1266, 1294-95 (10th Cir. 1996), we have g enerally held that factual disputes regarding the applicability of a p articular guideline do not rise to the level of plain error. Id. at 1294; Jones , 80 F.3d at 438; see also United States v. Deninno , 29 F.3d 572, 580 (10th Cir. 1994) (noting that fa ilure to object to a presentence report’s statement of fact constitutes a waiver of the issue). In this case, Kelly’s failure to raise the matter b efore the district court deprived that court of the opportunity to make the requisite factual findings-5-

regarding Kelly’s entitlement to an additional redu ction. Under the circumstances, we conclude the court’s failure to g rant an additional reduction pursuant to USSG § 3E1.1(b) does not rise to the le vel of plain error.
AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge