United States v. Stapp

      Appellate Case: 24-7009      Document: 64-1     Date Filed: 04/15/2025    Page: 1
                                                                                     FILED
                                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS                         Tenth Circuit

                                FOR THE TENTH CIRCUIT                           April 15, 2025
                            _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                             No. 24-7009
                                                     (D.C. No. 6:22-CR-00040-RAW-1)
 KENT MATTHEW STAPP,                                            (E.D. Okla.)

          Defendant - Appellant.
                         _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before MATHESON, EBEL, and MORITZ, Circuit Judges.
                  _________________________________

          Kent Matthew Stapp appeals his sentence for being a felon in possession of a

firearm. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

                                     I. BACKGROUND

                                  A. Prior Oklahoma Offenses

          In 2005, Mr. Stapp pled guilty to the Oklahoma state offenses of

second-degree burglary, grand larceny, and unauthorized use of a vehicle. He



          *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
   Appellate Case: 24-7009      Document: 64-1      Date Filed: 04/15/2025     Page: 2



received a seven-year prison sentence for the second-degree burglary and five-year

sentences for the two remaining counts, to be served concurrently. In 2008,

Mr. Stapp pled guilty to Oklahoma aggravated assault and battery and received a

two-year sentence, to run concurrently with his 2005 sentences.

                                   B. Factual History1

       On February 10, 2022, Mr. Stapp was a guest at a motel in Okmulgee, Oklahoma.

That evening, he rode in a car with his brother, Damien, and sister-in-law, Ravine, to a

nearby casino.2 Early the next morning, while Damien and Ravine remained at the

casino, Mr. Stapp drove away with the car. Sometime later, Ravine reported the car

stolen to Muscogee (Creek) Nation Lighthorse Police.

       Okmulgee County Sheriff’s Deputy Benjamin Ruppert observed Mr. Stapp

driving and stopped him for improper display of a vehicle tag. After discovering

Mr. Stapp had active Oklahoma arrest warrants, Deputy Ruppert ordered him to exit

the vehicle. When Mr. Stapp refused, Deputy Ruppert, assisted by another officer,

removed Mr. Stapp from the vehicle.

       As Deputy Ruppert patted him down, Mr. Stapp resisted and fled.

Deputy Ruppert gave chase and tackled Mr. Stapp. While on the ground, Mr. Stapp



       1
       We draw this factual history from trial evidence and undisputed evidence
from sentencing.
       2
          The record does not provide Ravine’s last name. For ease of reference, we
refer to her as “Ravine.” To avoid confusion, we also refer to Mr. Stapp’s brother by
his first name, “Damien,” because his last name is also “Stapp.”

                                             2
   Appellate Case: 24-7009      Document: 64-1       Date Filed: 04/15/2025   Page: 3



resisted commands to show Deputy Ruppert his hands, reaching for his waistline or

front pants pocket instead. During the scuffle, Deputy Ruppert heard “a metallic

sound” as an object “hit the ground.” ROA, Vol. III at 78. After placing Mr. Stapp

in handcuffs, the officers recovered a handgun from the ground near Mr. Stapp.

      After Mr. Stapp’s arrest, Ravine arrived. Police body camera footage captured law

enforcement asking her, “Did you give him permission to take the vehicle?” Id.

at 244-45. She responded, “No, I gave him permission to sit in my car. I didn’t know he

was going to take it.” Id. at 245. She also stated she wished Mr. Stapp “would have told

me he was going to take it.” Id. She declined to press charges.

                                 C. Procedural History

      In 2023, a jury convicted Mr. Stapp of being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

   Presentence Investigation Report

      The United States Probation Office prepared a Presentence Investigation

Report (“PSR”) for Mr. Stapp’s sentencing.

      Mr. Stapp’s PSR set his base offense level at 14. It then applied a four-level

enhancement under the United States Sentencing Guidelines (“U.S.S.G.” or “the

Guidelines”) for “possess[ing] any firearm or ammunition in connection with another

felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). It said the enhancement applied

because Mr. Stapp was operating a vehicle that had been reported stolen when he was

arrested. This resulted in a total offense level of 18.



                                            3
   Appellate Case: 24-7009      Document: 64-1      Date Filed: 04/15/2025    Page: 4



      The PSR assessed 17 criminal history points, including three points each for

his 2005 and 2008 convictions. This score placed Mr. Stapp in criminal history

category VI, which, combined with his offense level, yielded an advisory Guidelines

range of 57 to 71 months in prison.

   PSR Objections

      In a letter to the Probation Office, Mr. Stapp objected to the PSR’s four-level

enhancement. He argued the evidence described in the PSR did not prove that he

committed automobile theft. Without stating whether Damien owned the vehicle,

Mr. Stapp proffered that he received the car keys and permission from Damien to

drive the car back to his motel. He did not object to the inclusion of his 2005 and

2008 convictions in his criminal history score.

      The Government responded that Ravine’s report to the police of a stolen

vehicle together with the body camera footage of her later statement at the arrest

scene sufficed to prove Mr. Stapp violated Okla. Stat. tit. 47, § 4-102, which makes it

a felony to, “without the consent of the owner and with intent to deprive the owner,

temporarily or otherwise, of the vehicle or its possession, [to] take[], use[] or drive[]

the vehicle.” Okla. Stat. tit. 47, § 4-102.

   Sentencing Motion

      Mr. Stapp moved the district court to sustain his objection to the sentencing

enhancement or vary his offense level to 14. Mr. Stapp argued that he “thought he

had permission to drive the vehicle” based on his proffer that he “asked and received

the keys to the car from his brother for the purpose of running an errand.” ROA,

                                              4
   Appellate Case: 24-7009     Document: 64-1     Date Filed: 04/15/2025      Page: 5



Vol. I at 109. He therefore contended the Government failed to prove “intent to

deprive the owner of the vehicle.” Id. at 108.

      A reduction of the offense level to 14 would have resulted in a Guidelines

range of 37 to 46 months. He asked for 37 months.

   Sentencing

      At the sentencing hearing, Mr. Stapp stipulated to the body camera footage and

to Ravine’s statement but reiterated his proffer that Damien permitted him to drive

the car. He argued the conflicting evidence amounted to a “misunderstanding”

between Mr. Stapp and his family. ROA, Vol. III at 241.

      The Government argued that Ravine’s statement sufficed to prove that

Mr. Stapp “took the vehicle without the permission of the owner, albeit temporarily

. . . . [which] is enough to satisfy this statute.” Id. at 243. The Government played

the body camera footage at the sentencing hearing but introduced no witness

testimony.

      The district court adopted the PSR’s calculation of Mr. Stapp’s Guidelines

range, including the § 2K2.1(b)(6)(B) sentencing enhancement. It explained:

             Based on the evidence in this case, the owner of the vehicle
             reported it stolen to Creek Nation Lighthorse Police, and
             advised law enforcement that the Defendant was not given
             permission to drive the vehicle from the casino, but merely
             to sit in it. This resulted in the Defendant being in
             possession of a stolen vehicle, which meets the definition of
             “another felony offense.”

             The Defendant’s possession of the firearm had the potential to
             facilitate his possession of the stolen vehicle by emboldening
             him to maintain that possession if confronted by law

                                           5
   Appellate Case: 24-7009      Document: 64-1       Date Filed: 04/15/2025      Page: 6



              enforcement or the rightful owner. The details of this case
              indicated that the Defendant did not obey the orders of law
              enforcement and appeared to have been reaching for the
              firearm during the attempted arrest . . . . Therefore, the Court
              does find by a preponderance of the evidence that the four-level
              enhancement pursuant to the Guideline Section
              2K2.1(b)(6)(B) is applicable in this case, and the Defendant’s
              objection is overruled.

Id. at 246. Hearing no other objections, the court adopted the PSR’s Guidelines

range of 57 to 71 months. It denied Mr. Stapp’s motion for a downward variance and

sentenced him to 60 months in prison.

                                   II. DISCUSSION

       Mr. Stapp challenges the procedural reasonableness of both his offense level

and his criminal history category. Aplt. Br. at 16-39. First, he argues the four-level

enhancement under § 2K2.1(b)(6) was based on unreliable hearsay and otherwise

lacked sufficient evidence. Id. at 16-28. Second, he contends his prior Oklahoma

convictions should not count for his criminal history under U.S.S.G. § 4A1.1 because

the Supreme Court’s decision in McGirt v. Oklahoma, 591 U.S. 894 (2020), rendered

them void. Id. at 28-39.

               A. Procedural Reasonableness and Standard of Review

       When reviewing a sentence for procedural reasonableness, we consider

whether the district court committed “significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range.” Gall v. United States,

552 U.S. 38, 51 (2007); accord United States v. McCrary, 43 F.4th 1239, 1244

(10th Cir. 2022). District courts calculate the range based on the defendant’s offense


                                             6
   Appellate Case: 24-7009       Document: 64-1      Date Filed: 04/15/2025      Page: 7



level and criminal history category. See U.S.S.G. § 1B1.1. Mr. Stapp claims the district

court miscalculated both.

       We review procedural reasonableness for abuse of discretion, which means “we

review de novo the district court’s legal conclusions regarding the guidelines and review

its factual findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246

(10th Cir. 2012); see Gall, 552 U.S. at 51; United States v. McDonald, 43 F.4th 1090,

1095 (10th Cir. 2022).

       “In particular, we review the application of § 2K2.1(b)(6)(B) in a given case

for clear error.” United States v. Leib, 57 F.4th 1122, 1125-26 (10th Cir. 2023).

“Thus, ‘we will not disturb the district court’s factual findings unless they have no basis

in the record’ and, in reviewing the record, ‘we view the evidence and inferences

therefrom in the light most favorable to the district court’s determination.’” Id. at 1126

(quoting United States v. Hoyle, 751 F.3d 1167, 1174 (10th Cir. 2014)). “To constitute

clear error, we must be convinced that the sentencing court’s finding is simply not

plausible or permissible in light of the entire record on appeal, remembering that we

are not free to substitute our judgment for that of the district judge.” United States v.

McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003) (quotations omitted).

       We review a sentence’s procedural reasonableness for plain error when the

defendant did not object in the district court. See Fed. R. Crim. P. 52(b);

United States v. Booker, 543 U.S. 220, 268 (2005) (clarifying that ordinary prudential

doctrines, such as the “‘plain-error’ test” apply to reasonableness challenges to

sentences); see also Leib, 57 F.4th at 1128 (applying plain-error review to

                                             7
   Appellate Case: 24-7009       Document: 64-1      Date Filed: 04/15/2025     Page: 8



defendant’s hearsay argument not raised at sentencing). The appellant must show

“(1) the district court erred; (2) the error was plain; (3) the error affects the

defendant’s substantial rights; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Warrington,

78 F.4th 1158, 1167 (10th Cir. 2023) (quotations omitted). “An error is plain if it is

clear or obvious under current, well-settled law.” Id. (quotations omitted). “A law is

well-settled in the Tenth Circuit if there is precedent directly on point from the

Supreme Court or the Tenth Circuit, or if there is consensus in the other circuits.”

United States v. Egli, 13 F.4th 1139, 1146 (10th Cir. 2021).

       “When an appellant fails to preserve an issue and also fails to make a

plain-error argument on appeal, we ordinarily deem the issue waived (rather than

merely forfeited) and decline to review the issue at all—for plain error or otherwise.”

United States v. Bradley, 97 F.4th 1214, 1221 (10th Cir. 2024) (quoting United States

v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019)).

                                       B. Analysis

   Offense Level Enhancement

       a. Hearsay

       Mr. Stapp argues the district court erred when it relied on Ravine’s statement

to police. Aplt. Br. at 19-28. For the first time on appeal, he contends the statement

is unreliable hearsay because it lacks the minimal indicia of reliability required for

evidence at sentencing. See id. We reject this argument because he fails to argue

plain error and it otherwise lacks merit.

                                             8
   Appellate Case: 24-7009       Document: 64-1      Date Filed: 04/15/2025     Page: 9



              i. Legal background: hearsay at sentencing

       “Unlike at a criminal trial where the Federal Rules of Evidence limit the types

of admissible evidence, at a sentencing hearing the court can have access to any

relevant information, so long as it adheres to a preponderance of the evidence

standard.” United States v. Ruby, 706 F.3d 1221, 1227 (10th Cir. 2013).

       Hearsay statements are “presumptively unreliable” for trial purposes, Idaho v.

Wright, 497 U.S. 805, 823 (1990), but “may be considered at sentencing if they bear

‘some minimal indicia of reliability,’” which is a “low hurdle,” United States v.

Cook, 550 F.3d 1292, 1296 (10th Cir. 2008) (quoting United States v. Browning,

61 F.3d 752, 755 (10th Cir. 1995)).3 “Corroborating evidence is often key to

determining whether a statement is sufficiently reliable.” Ruby, 706 F.3d at 1229.

              ii. Waiver and no error

       Mr. Stapp contends Ravine’s hearsay statement lacked the minimal indicia of

reliability.4 He forfeited this argument by failing to raise it in district court.

See United States v. Garcia, 936 F.3d 1128, 1131 (10th Cir. 2019). “On appeal, we


       3
          See U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor
important to the sentencing determination, the court may consider relevant
information without regard to its admissibility under the rules of evidence applicable
at trial, provided . . . [it] has sufficient indicia of reliability to support its probable
accuracy.”).
       4
         The parties agree that the body camera footage of Ravine’s statement was
hearsay evidence—that is, a statement that “the declarant does not make while
testifying at the current trial or hearing” and offered “to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c); see Smith v. Arizona, 602 U.S. 779,
785 (2024).

                                             9
  Appellate Case: 24-7009      Document: 64-1     Date Filed: 04/15/2025    Page: 10



can only consider forfeited arguments under the plain error standard of review. But

if a defendant does not argue for plain error in his opening brief on appeal, he waives

any plain error argument.” Id. (citation omitted); Bradley, 97 F.4th at 1221.

Mr. Stapp has not argued plain error on appeal, so he has waived his hearsay

argument.

      Mr. Stapp has not otherwise demonstrated the district court erred in relying on

the hearsay statement. The statement meets the “some minimal indicia of reliability”

standard, Cook, 550 F.3d at 1296. Ravine’s report to the police that the vehicle had

been stolen before Mr. Stapp’s traffic stop corroborates her later statement at the

scene that she was the vehicle’s owner and that Mr. Stapp did not have permission to

take it. See Ruby, 706 F.3d at 1229. Her statement on body camera footage was

presented at sentencing, which permitted the district court to observe her demeanor.

See Leib, 57 F.4th at 1129 (reasoning the hearsay was reliable, in part, because an

affiant officer “reviewed the body camera audio and video recording” of the

statement).

      Mr. Stapp argues that United States v. Fennell, 65 F.3d 812 (10th Cir. 1995),

shows Ravine’s statement cannot clear the “low hurdle” required of hearsay evidence

at sentencing. In Fennell, the defendant’s former girlfriend and victim of the alleged

crime made unsworn allegations against the defendant in a telephone interview with

the probation officer who prepared the PSR for the defendant’s sentencing. Id.

at 813. The district court relied solely on the probation officer’s in-court testimony

account of the girlfriend’s hearsay statement to enhance the defendant’s sentence. Id.

                                          10
  Appellate Case: 24-7009      Document: 64-1     Date Filed: 04/15/2025     Page: 11



We held this statement lacked the minimal indicia of reliability to warrant its

consideration at sentencing. Id. Unlike here, the interviewing officer in Fennell had

no opportunity “to observe her demeanor during the interview and therefore could not

form any opinion as to her veracity,” and there was “no other evidence” in the record

corroborating the officer’s account. Id.

      Ravine’s hearsay statement more closely resembles the one in United States v.

Leib. In Leib, we upheld a sentencing enhancement under § 2K2.1(b)(6)(B) based in

part on a hearsay statement that the defendant’s mother made to law enforcement

officials. Leib, 57 F.4th at 1229. She told them the defendant had fired multiple

shots into his bedroom floor. Id. at 1228. She declined to press charges and did not

testify, but police captured her statement on body camera footage and presented it to

the court at sentencing through an officer’s affidavit. Id. at 1228-29. The court

found the “totality of the circumstances” corroborated the mother’s hearsay statement

that her son intentionally fired shots into the floor, noting the defendant was alone,

uninjured, and had fired multiple shots. Id. at 1127-28. We also emphasized that,

unlike Fennell, the unsworn statement was captured in the body camera footage. Id.

at 1129.

      Ravine’s hearsay statement was at least as reliable, if not more so, than the

statement in Leib. As previously discussed, Ravine’s earlier report to the police that

the vehicle was stolen corroborated her statement, which was captured on body

camera footage and was presented to the court. In contrast to Fennell, the record thus

tends to “buttress” rather than “undermine” confidence in the hearsay statement,

                                           11
   Appellate Case: 24-7009       Document: 64-1      Date Filed: 04/15/2025      Page: 12



Fennell, 65 F.3d at 813, which cleared the “low hurdle” required by the “some

minimal indicia of reliability” standard, Cook, 550 F.3d at 1296.

       b. Sufficiency5

       Mr. Stapp contends the district court clearly erred in finding Mr. Stapp

committed another felony offense to warrant application of the § 2K2.1(b)(6)(B)

sentence enhancement. We disagree.

           i. Legal background: § 2K2.1(b)(6)

       “The government has the burden of proving, by a preponderance of the evidence,

that Section 2K2.1(b)(6) applies.” United States v. Kitchell, 653 F.3d 1206, 1226

(10th Cir. 2011). “The district court’s factual finding as to whether the government met

this burden ‘is not clearly erroneous unless it is without factual support in the record, or

unless the court after reviewing all the evidence, is left with a definite and firm

conviction that the district court erred.’” United States v. Brown, 85 F.4th 1291, 1295

(10th Cir. 2023) (quotations omitted) (reviewing sufficiency of evidence for a sentencing


       5
         We are not convinced Mr. Stapp adequately raised his
sufficiency-of-evidence argument in his opening brief because he only contested the
reliability of the hearsay evidence. See United States v. Workman, No. 23-7081,
2024 WL 4988279, at *3 n.4 (10th Cir. Dec. 5, 2024) (unpublished) (“Apart from
contesting whether the hearsay evidence was sufficiently reliable, Mr. Workman does not
separately challenge the district court’s finding that a preponderance of the evidence
supported the sentencing enhancement.”). But we exercise our discretion to consider
it. See United States v. Jani, No. 23-1309, 2025 WL 548404, at *3 (10th Cir. Feb.
19, 2025) (“Generally, we do not consider arguments made for the first time on
appeal in an appellant’s reply brief, but we retain the discretion to do so.” (quotation
omitted)) (unpublished).
       We cite these unpublished cases as persuasive under Fed. R. App. P. 32.1(A)
and 10th Cir. R. 32.1.

                                             12
   Appellate Case: 24-7009      Document: 64-1       Date Filed: 04/15/2025     Page: 13



enhancement under § 2K2.1); see Leib, 57 F.4th at 1125-27 (reviewing sufficiency of

evidence for a § 2K2.1(b)(6)(B) enhancement for clear error).

       Section 2K2.1(b)(6)(B) provides for a four-level enhancement to a defendant’s

offense level “[i]f the defendant . . . used or possessed any firearm or ammunition in

connection with another felony offense.” This provision therefore has three elements:

(1) possession of a firearm, (2) in connection with, and (3) another felony offense.

Mr. Stapp has limited his challenge to whether he committed “another felony offense.”6

       For the “felony offense” element of § 2K2.1(b)(6), the district court relied on the

Oklahoma crime of unauthorized use of a vehicle, Okla. Stat. tit. 47, § 4-102, which

requires proof that the defendant (1) is not entitled to possession of the vehicle without

the consent of the owner, (2) intends to deprive the owner of the vehicle, and (3) takes,

uses, or drives the vehicle. Mr. Stapp addressed the first two elements in district court

but addresses only the first one—without the owner’s consent—on appeal.



       6
         Mr. Stapp does not challenge that he possessed a firearm. Nor does he
contest the district court’s finding that he possessed it “in connection” with the
vehicle offense. Even if he had challenged this finding, the district court did not
clearly err. See United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012)
(reviewing district court’s “in connection” finding for clear error).
       The “in connection” requirement is met if the firearm “facilitated, or had the
potential of facilitating” the felony offense. U.S.S.G. § 2K2.1 cmt. 14(A).
Facilitation occurs when having the firearm “embolden[s] the possessor to commit
the offense” by giving a “sense of security” while committing the offense, Justice,
679 F.3d at 1255, including the offense of possession of a stolen vehicle,
United States v. Sanchez, 22 F.4th 940, 942 (10th Cir. 2022).
       Here, the district court found that Mr. Stapp’s firearm possession emboldened
him based on Deputy Ruppert’s testimony that Mr. Stapp repeatedly tried to reach for
the firearm while resisting arrest.

                                             13
   Appellate Case: 24-7009     Document: 64-1      Date Filed: 04/15/2025    Page: 14



              ii. Proof of a “felony offense”

       Mr. Stapp argues the government failed to prove by preponderance of the

evidence that he did not have the owner’s consent to drive the vehicle—a necessary

element of the unauthorized-use offense. See Aplt. Reply Br. at 5.7

       The district court found that Mr. Stapp committed the offense based on

(1) Ravine’s report to the police that her vehicle was stolen from the casino, and

(2) body camera footage of her later stating she had reported the car stolen and that

she had not given Mr. Stapp permission to drive it. Mr. Stapp stipulated to this

evidence but proffered that Damien had permitted him to drive the car to a nearby

motel to retrieve his debit card. At sentencing, Mr. Stapp called the contrasting

accounts a “misunderstanding,” but never argued that Damien was the owner for

purposes of having the owner’s consent under Okla. Stat. tit. 47, § 4-102. ROA,

Vol. III at 241.8


       7
         On appeal, Mr. Stapp has abandoned the argument he made in his sentencing
motion to the district court that Damien’s permission negated the “intent to deprive”
element of the unauthorized use offense. See ROA, Vol. I at 108 (“Mr. Stapp had no
intent to deprive the owner of the vehicle. He thought he had permission to use the
vehicle.”). Instead, he argues the Government offered insufficient evidence to prove
he drove the vehicle “without the consent of the owner.” Aplt. Reply Br. at 5
(quotations omitted).
       8
         For the first time on appeal, Mr. Stapp argues the evidence was insufficient
because it did not prove Ravine was the vehicle’s sole owner. See Aplt. Reply Br.
at 5-7. He contends that, if Damien co-owned the vehicle and gave him permission
to drive the car, Ravine’s hearsay statement did not show that Mr. Stapp lacked the
owner’s consent. Id.
       But Mr. Stapp never raised this argument in district court, nor did he proffer
that Damien co-owned the vehicle. See Oral Arg. at 08:00-09:17. Because Mr. Stapp
failed to raise this argument in district court and failed to argue plain error on appeal,
                                           14
  Appellate Case: 24-7009     Document: 64-1     Date Filed: 04/15/2025    Page: 15



      Although Mr. Stapp’s attempt to reconcile his proffer with the Government’s

evidence may be plausible, we cannot say the district court clearly erred in finding

that Mr. Stapp lacked the owner’s permission to take the vehicle from the casino.

The Government offered evidence to show Ravine owned the vehicle, that she spoke

with Mr. Stapp before he left the casino, and that she did not give him permission to

take the vehicle. “[V]iew[ing] the evidence and inferences therefrom in the light

most favorable to the district court’s determination,” Leib, 57 F.4th at 1126

(quotation omitted), the district court could reasonably find the Government’s

evidence more likely than not established that Mr. Stapp took the vehicle without the

owner’s permission.

   Criminal History

      Mr. Stapp also contends his 2005 and 2008 Oklahoma state convictions should

not have been used to calculate his criminal history score because McGirt rendered

them void for lack of jurisdiction. Aplt. Br. at 28-39. Because Mr. Stapp raises this

argument for the first time on appeal, we review for plain error. See United States v.

Vannortwick, 74 F.4th 1278, 1280–81 (10th Cir. 2023). He cannot show any error

was plain.




he is not entitled to our review. See United States v. Portillo-Uranga, 28 F.4th 168,
177 (10th Cir. 2022).

                                          15
  Appellate Case: 24-7009      Document: 64-1     Date Filed: 04/15/2025    Page: 16



      a. McGirt

      In McGirt v. Oklahoma, 591 U.S. 894 (2020), the Supreme Court held that the

Muscogee (Creek) Reservation had not been disestablished. Id. at 913, 937-38. The

“Indian Major Crimes Act,” 18 U.S.C. § 1153, confers exclusive federal jurisdiction

over the prosecution of crimes when (1) the accused is an “Indian,” (2) the alleged

offense occurred in “Indian country,” and (3) the conduct falls under one of the

enumerated offenses set forth in § 1153.9

      Mr. Stapp’s 2005 and 2008 convictions were for offenses enumerated in

§ 1153(a). Under McGirt, they occurred within Indian country—the Muscogee

(Creek) Reservation. The parties agree that Oklahoma courts would not have

jurisdiction to prosecute Mr. Stapp for his 2005 and 2008 offenses after McGirt.

See Aplt. Br. at 31-32; Aplee. Br. at 15. They disagree about whether those offenses

should be counted as part of Mr. Stapp’s criminal history in this case.

      b. No plain error

      Mr. Stapp has not shown that any error in calculating his criminal history score

using his 2005 and 2008 Oklahoma convictions was plain. If anything, our case law

shows no error.




      9
         These offenses include: “murder, manslaughter, kidnapping, maiming,
[sexual abuse], incest, a felony assault [within the maritime and territorial
jurisdiction of the United States], assault against an individual who has not attained
the age of 16 years, felony child abuse or neglect, arson, robbery, and [] felony
[theft].” 18 U.S.C. § 1153(a).

                                            16
  Appellate Case: 24-7009      Document: 64-1      Date Filed: 04/15/2025    Page: 17



      Mr. Stapp has identified no authority entitling him to collaterally attack his

Oklahoma convictions in a federal sentencing proceeding.10 The Guidelines “do not

confer upon the defendant any right to attack collaterally a prior conviction or

sentence beyond any such rights otherwise recognized in law.” U.S.S.G. § 4A1.2

cmt. n.6. In United States v. Garcia, 42 F.3d 573 (10th Cir. 1994), this court said

that, “with the exception of a collateral attack based on complete denial of counsel, a

district court sentencing a defendant under the . . . Guidelines cannot consider a

collateral attack on a prior conviction.” Id. at 581; see also Custis, 511 U.S. at 487,

493 (holding the same for the Armed Career Criminal Act, finding it “lack[ed] any

indication that Congress intended to permit collateral attacks on prior convictions

used for sentence enhancement purposes.”).

      Mr. Stapp’s attempts to distinguish Garcia are unpersuasive.

      First, he says the defendant in Garcia argued the Guidelines permitted the

district court to depart downward based on his claim that he was innocent of the

predicate offense for the enhancement. See Aplt. Reply Br. at 19 (citing Garcia,

42 F.3d at 574-75). But this part of the Garcia opinion has nothing to do with the

issue presented here. Compare Garcia, 42 F.3d at 575-78 (“Claim of Innocence”),

with id. at 578-82 (“Constitutional Challenge”).




      10
        Courts describe challenges to the use of a prior conviction for sentence
enhancement as “collateral attacks” on the conviction. See Custis v. United States,
511 U.S. 485, 488 (1994).

                                           17
  Appellate Case: 24-7009      Document: 64-1     Date Filed: 04/15/2025     Page: 18



      Second, Mr. Stapp, addressing the portion of Garcia dealing with the

permissibility of collateral attacks at sentencing, argues we rejected Mr. Garcia’s

attack on his predicate conviction based on an interpretation of the Sentencing

Guidelines. See Aplt. Reply Br. at 19. But Mr. Stapp fails to explain how this

argument shows error in this case, let alone plain error. Id.

      Third, Mr. Stapp argues “Garcia deserves re-examination.” Aplt. Reply Br.

at 20, but “[w]e are bound by the precedent of prior panels,” In re Smith,

10 F.3d 723, 724 (10th Cir. 1993) (per curiam).

      In sum, Mr. Stapp’s arguments are unpersuasive. At a minimum, any error is

not plain under well-established law. Mr. Stapp thus fails to satisfy the “plain” prong

of plain error review.

                                 III. CONCLUSION

      We affirm.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           18