United States v. Cook, 550 F.3d 1292, 10th Cir. (2008)
United States v. Cook, 550 F.3d 1292, 10th Cir. (2008)
Elisabeth A. Shumaker
Clerk of Court
No. 07-1487
In return, the
At a
connection with another felony offense; felony menacing, and the [four]-level
enhancement under [U.S.S.G. ] 2K2.1(b)(6) properly applies. The district court
sentenced Defendant to 90 months imprisonment based on a Guidelines range of 84
to 105 months.
II.
Defendant advances the same argument on appeal that he presented before the
district court, i.e., that the Government did not demonstrate by a preponderance of
the evidence that the four-level enhancement was appropriate. Further, Defendant
contends that Rule 32(i)(3)(B) requires us to remand for the district court to explain
more adequately the bases for its finding that Defendant committed felony menacing.
We consider each issue in turn.
A.
A challenge to the application of a sentencing enhancement tests the
procedural reasonableness of a sentence, which requires, among other things, a
properly calculated Guidelines range. United States v. Smith, 534 F.3d 1211, 1226
(10th Cir. 2008). [S]electing a sentence based on clearly erroneous facts is a
procedural error, which amounts to an abuse of discretion. Gall v. United States,
128 S. Ct. 586, 597 (2007).
interpretation of the Guidelines de novo and its factual findings for clear error.
affidavit); (2) Officer Crusers narrative remarks in a police report describing the
events surrounding Defendants arrest; and (3) a Bureau of Alcohol, Tobacco and
Firearms Report of Investigation (the ATF report).
documents could not be considered for purposes of enhancing his sentence after
Shepard v. United States, 544 U.S. 13 (2005). In Shepard, the Supreme Court held
that the charging document, the terms of a plea agreement, the transcript of
colloquy between judge and defendant, or some comparable judicial record, is the
permissible universe of evidence a court may consider in determining whether a
guilty plea establishes a predicate offense for a sentencing enhancement under the
Armed Career Criminal Act (ACCA). Id. at 26; see also United States v. RomeroHernandez, 505 F.3d 1082, 1085-86 (10th Cir. 2007) (explaining application of
Shepards modified categorical approach to sentencing enhancements).
Although Shepard may have some application to enhancements outside the
ACCA where the Guidelines require a conviction as a predicate to a sentencing
enhancement, we have never applied such a stringent requirement to warrant a
sentencing enhancement that merely requires certain conduct. See, e.g., United
States v. Zuniga-Sota, 527 F.3d 1110, 1119-20 (10th Cir. 2008) (discussing Shepard
in the context of determining whether a past conviction amounts to a crime of
violence for purposes of U.S.S.G. 2L1.2). Here, 2K2.1(b)(6) only requires
certain conduct to warrant an enhancement. See U.S.S.G. 2K2.1(b)(6) (If the
defendant used or possessed any firearm or ammunition in connection with another
felony offense . . . , increase by 4 levels.). Shepard is simply inapplicable in this
context. Accordingly, we examine the contents of the documents to determine
whether the district court clearly erred in finding they were sufficient to determine
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telephoned Mr. Spruell after Officers McCleerey and Spanos interviewed him,
confirming that Defendant pointed a loaded shotgun at Mr. Spruell. Finally, the ATF
report, based on Aurora Police Department reports, recounts the essential details of
this encounter, i.e., that Defendant pointed a loaded shotgun at Mr. Spruell.
While the due process clause protects a defendants right not to be sentenced
See also United States v. Gatewood, 370 F.3d 1055,1061 (10th Cir. 2004)
(holding that in sentencing hearsay may be considered as long as it bears some
minimal indicia of reliability) vacated on other grounds by Gatewood v. United
States, 543 U.S. 1109 (2005); United States v. Knox, 124 F.3d 1360, 1366 (10th Cir.
1997) (holding evidence legitimately considered at sentencing . . . may include
hearsay testimony containing only minimal indicia of reliability); see generally
U.S.S.G. 6A1.3(a) (2007) (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
that the information has sufficient indicia of reliability to support its probable
accuracy.).
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Smiths and Mr. Spruells demeanor and form an opinion regarding their veracity.
Second, two witnesses, Ms. Smith and Mr. Spruell, each corroborated that Defendant
pointed a loaded shotgun at Mr. Spruell. Finally, Mr. Spruells conversation with
Officer Cruser over the telephone, while insufficient by itself to establish that
Defendant committed felony menacing, was consistent with Mr. Spruells and Ms.
Smiths previous face-to-face account with the other two officers. 5 These differences
are sufficient to vest some minimal confidence in the reliability of the hearsay
statements before the district court. We hold that the district court did not clearly
err in relying on them. 6
B.
Next, we consider whether we must remand for a more thorough explanation
of the district courts finding that Defendant committed felony menacing.
Rule 32(i)(3)(B) requires a district court for any disputed portion of the presentence
report or other controverted matter to rule on the dispute or determine that a ruling
5
Because we have determined that the district court could rely on the
documents appended to the PSR in response to Defendants objections, we need not
consider whether the statements within the PSR itself concerning the Colorado State
Courts probable cause finding were also sufficient.
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is unnecessary because it will not affect a defendants sentence. The parties dispute
the appropriate standard of review for an alleged Rule 32(i)(3)(B) violation.
Defendant contends that we conduct a plenary review for compliance with the
Federal Rules of Criminal Procedure. The Government counters that plain error
should apply because Defendant failed to lodge a separate objection alleging
noncompliance with Rule 32(i)(3)(B) after the district court found that he committed
felony menacing.
In United States v. Williamson, 53 F.3d 1500, 1527 (10th Cir.1995), we
applied plain-error review when a defendant neglected to make a separate objection
at the sentencing hearing to the district courts failure to resolve factual objections
to the PSR under Rule 32(i)(3)(B)s predecessor. 7 As in Williamson, Defendant did
not raise his dissatisfaction with the adequacy of the district courts explanation until
this appeal.
After the district court calculated the Guidelines range and gave
I know the
Court . . . imposed a [four]-level enhancement, but I think that our objection, I still
think was a legitimate objection.
counsels previous argument concerning the sufficiency of the evidence, not the
district courts explanation of its finding. Because the Supreme Court has not
overruled Williamson and this circuit has not reconsidered it en banc, we are bound
to follow it. See Tootle v. USDB Commandant, 390 F.3d 1280, 1283 (10th Cir.
2004).
Defendants argument based on United States v. Atencio, 476 F.3d 1099,
1106-07 (10th Cir. 2007), overruled on other grounds by Irizarry v. United States,
128 S.Ct. 2198, 2201 n.1 (2008), that forfeiture of Rule 32(i)(3)(B)s protections
only occurs if a defendant fails to object to a disputed fact at the sentencing hearing,
despite prior submission of a written objection, is unconvincing. Atencio did not
purport to alter, or even cite to, Williamson. 8 We merely held in Atencio that a
district courts adoption of blatantly contradictory facts in the PSR and addendum
thereto constitutes plain error. See id. at 1107. Such is not the case here, as we have
already explained, all the evidence before the district court tended to reinforce its
finding that Defendant committed felony menacing. Accordingly, we apply plain
error review.
Plain error occurs when there is (1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Torres-Duenas, 461 F.3d 1178,
(1) Defendant triggered the district courts fact-finding and explanatory duties by
making a showing of specific allegations of factual inaccuracy, see United States
v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006); and (2) the district
courts finding that Defendant committed felony menacing fell so short of the
required ruling under Rule 32(i)(3)(B) as to amount to plain error, we determine
that Defendants challenge fails on the third and fourth prongs of plain error review.
For an error to affect substantial rights, Defendant bears the burden of showing
a reasonable probability that, but for the error claimed, the result of the proceeding
would have been different. United States v. Kaufman, 546 F.3d 1242, 1252 (10th
Cir. 2008) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004)).
Because the record is sufficient for the district court to apply the four-level
enhancement for felony menacing, Defendant cannot meet this burden. This is
especially true here because the district court has nothing further to consider on
remand, given that Defendant presented no evidence at sentencing. Remanding for
the district court to merely state on the record that it relied on the documents
appended to the PSR in response to Defendants objection would waste judicial
resources. Further, we conclude that where a district court explicitly makes a finding
resolving a defendants objection to the reliability of evidence at sentencing, and the
court of appeals determines the record is sufficient to sustain the finding, no
miscarriage of justice results due to a technical violation of Rule 32(i)(3)(B). See
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