United States Court of Appeals

For the Eighth Circuit 

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No. 23-1790

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United States of America

 Plaintiff - Appellee

v.

James W. Fithen, Jr., also known as Boss

 Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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Submitted: December 11, 2023

Filed: February 14, 2024

[Unpublished]

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Before ERICKSON, MELLOY, and STRAS, Circuit Judges. 

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PER CURIAM.

Defendant James W. Fithen, Jr., pleaded guilty to conspiring to distribute 50 

grams or more of methamphetamine and aiding and abetting the attempted 

possession with intent to distribute 500 grams or more of a mixture or substance 

containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 
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846, 851, and 18 U.S.C. § 2. He also consented to a $3.6 million forfeiture. He now 

appeals his 336-month sentence. We affirm. 

The statutory sentencing range for Mr. Fithen’s offenses was fifteen years to 

life imprisonment. He challenged the Presentence Investigation Report’s (PSR) 

drug-quantity recommendation as relevant to establishing his base offense level 

under United States Sentencing Guideline § 2D1.1(c). He also challenged the 

application of several enhancements as follows: two levels for the possession of a

firearm in connection with the conspiracy, U.S.S.G. § 2D1.1(b)(1); two levels for 

the use of violence, U.S.S.G. § 2D1.1(b)(2); two levels for the importation of drugs, 

U.S.S.G. § 2D1.1(b)(5); and four levels for his role as an organizer or leader, 

U.S.S.G. § 3B1.1(a).

The district court1 found the relevant drug quantity to be greater than 4.5 kg 

resulting in a base offense level of 38.2

 The district court also rejected Mr. Fithen’s 

challenges to the enhancements, resulting in an adjusted offense level greater than 

43. As such, pursuant to U.S.S.G. § 5.A. cmt. n.2, Mr. Fithen’s offense level was 

43. At Criminal History Category III, his advisory Guidelines “range” was life 

imprisonment. The government argued for a 480-month sentence, and Mr. Fithen 

argued for 240 months. The district court rejected both suggestions, varied 

downward, and imposed a sentence of 336 months. The district court discussed the 

factors under 18 U.S.C. § 3553(a), Mr. Fithen’s and his co-conspirators’ roles in the 

conspiracy, and the other conspirators’ sentences.

Mr. Fithen now argues that the district court erred regarding two of the 

Guideline enhancements he challenged at the district court because the district court 

1

The Honorable Beth Phillips, Chief Judge, United States District Court for 

the Western District of Missouri.

2

At sentencing, when discussing the drug quantity determination, the district 

court referenced a base offense level of 38 and stated its quantity conclusion, but 

later referenced a base offense level of 35. Reading the transcript as a whole, the 

isolated reference to a base offense level of 35 was just an isolated misstatement. 
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relied upon select public records—his co-conspirators’ plea agreements and 

stipulations—without providing advance notice it would do so. As to this narrow, 

notice-based evidentiary challenge, we note Mr. Fithen stipulated in the district court 

that, if called to testify, officers would testify consistently with statements and 

materials contained in an appendix to the government’s sentencing brief, including 

statements from co-conspirators. Accordingly, Mr. Fithen expressly waived 

evidentiary challenges he might otherwise assert regarding reliance on the contents 

of the appendix. See United States v. Chavarria-Ortiz, 828 F.3d 668, 670–71 (8th 

Cir. 2016) (“A waiver . . . is ‘the intentional relinquishment or abandonment of a 

known right,’ whereas forfeiture is ‘the failure to make the timely assertion of a 

right.’” (quoting United States v. Olano, 507 U.S. 725, 733 (1993))). “Waiver 

precludes appellate review, while forfeiture limits consideration to a rigorous plainerror standard.” Id.3

 Regarding the district court’s reliance on public materials from 

the files of his co-conspirators not found in the stipulated appendix, Mr. Fithen made 

no objection. As such, we review his notice-based challenge to the district court’s 

reliance on such records only for plain error. Id.

Plain error review permits us to grant relief if we find an error that was (1) 

plain or “obvious” under existing law at the time the error occurred and (2) 

negatively affected the appellant’s “substantial rights.” Olano, 507 U.S. at 733–34. 

Even when these conditions are met, relief is discretionary. Id. at 736 (“The Court 

of Appeals should correct a plain forfeited error affecting substantial rights if the 

error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial 

proceedings.’” (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))). The 

appellant bears the burden of proving plain error. See United States v. Pirani, 406 

F.3d 543, 551 (8th Cir. 2005).

Here, even assuming a notice-based evidentiary error occurred that might be 

described as plain or obvious, there has been no showing that it affected Mr. Fithen’s 

substantial rights, and we find nothing to impugn the integrity of the court. He does 

3

In fact, he expressly concedes this point in his reply brief.
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not articulate precisely what information from his co-conspirators’ plea agreements 

and stipulations was both used by the district court and absent from the appendix to 

which he consented. Further, he has not articulated how advance notice of possible 

reliance on any such public materials would have altered his case. He argues 

generally that the district court relied on the plea agreements and stipulations to 

assess his co-conspirators’ veracity. But he does not indicate how any specific 

records affected his rights. Rather, he asserts that with greater notice, 

“he might have considered calling the co-defendants as witnesses” or “he might have 

sought other admissible evidence challenging their veracity.” Finally, we note that 

Mr. Fithen’s defense had access to these related case materials below and referenced 

his co-conspirators’ records at sentencing when making arguments comparing his 

situation to that of his co-conspirators. This is not an appropriate case for plain-error 

relief. 

Turning to his Guidelines arguments, we review the district court’s factual 

determinations for clear error and its interpretation of the Guidelines de novo. See 

United States v. Hernandez Lopez, 24 F.4th 1205, 1208 (8th Cir. 2022). Mr. Fithen 

argues the relevant drug quantity should have been 2.5 kg of methamphetamine 

based on a quantity discovered by officers during their investigation. We reject his 

argument. The district court permissibly approximated the quantity to be greater 

than 4.5 kg based in part on Mr. Fithen’s own statements. He stated that he owed 

suppliers $80,000 and the 2.5 kg of methamphetamine alone cost $25,000. By any 

conservative measure of conversion, the district court did not clearly err in finding 

the additional money represented at least an additional 2 kg of methamphetamine. 

See United States v. Padilla-Pena, 129 F.3d 457, 467–68 (8th Cir. 1997) (“In 

determining base offense levels, the district court may rely on evidence including 

drug prices and organizational capabilities to approximate total drug quantities 

beyond the amount of drugs actually seized.”). 

Mr. Fithen also challenges the firearm enhancement. During the conspiracy,

an officer saw Mr. Fithen point a firearm at another co-conspirator, Mr. Fithen 
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entered an Alford plea4 to a firearm charge, and Mr. Fithen called the sheriff’s 

department to ask about the return of his gun after officers confiscated a gun from 

his ex-wife’s home. Courts may infer the requisite connection between a firearm 

and drug dealing based on a logical or spatial nexus when facts do not otherwise 

show a connection is “improbable.” U.S.S.G. § 2D1.1(b) cmt. n.11(A) (“The 

enhancement should be applied if the weapon was present, unless it is clearly 

improbable that the weapon was connected with the offense.”); see also United 

States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008) (the government must “show 

that it is not clearly improbable that the weapon was connected to the drug offense”). 

Here, especially in light of the fact that an officer saw Mr. Fithen point a firearm at 

a co-conspirator, we find no clear error.

We affirm the judgment of the district court.

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4

North Carolina v. Alford, 400 U.S. 25, 37 (1970) (permitting guilty plea 

without admission of guilt based on concession that evidence is sufficient to prove 

guilt).