United States v. Cook

FILED
United States Court of Appeals
Tenth Circuit

December 31, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 07-1487
KENNETH WAYNE COOK,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 07-CR-00170-DME)

Matthew C. Golla, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender and David E. Johnson, Writing and Research Attorney, with him on
the briefs), Denver, Colorado, for Defendant-Appellant.

Michael C. Johnson, Assistant United States Attorney (Troy A. Eid, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before GORSUCH, MCKAY, and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Kenneth Wayne Cook, a convicted felon, pleaded guilty to

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In return, the

Government dismissed another charge of possessing an unregistered sawed-off
shotgun, in violation of 26 U.S.C. §§ 5845(a)(1), (2), 5861(d). Defendant now

appeals (1) the district court’s decision to apply a four-level increase to his base

offense level for felony menacing under the United States Sentencing Guideline

§ 2K2.1(b)(6), and (2) the adequacy of the district court’s explanation for this

enhancement under Federal Rule of Criminal Procedure 32(i)(3)(B). Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

I.

Police arrested Defendant in March 2007, after receiving reports of an armed

individual matching his description near East Colfax Avenue and Moline Street in

Aurora, Colorado. Defendant fled from authorities, attempting to hide what was later

discovered to be a black Remington .870 12-gauge sawed-off shotgun. The State of

Colorado charged Defendant with several crimes, including two counts of felony

menacing in violation of Colorado Revised Statutes § 18-3-206(1)(a).1 At a

preliminary hearing, a state-court judge found probable cause to believe these

offenses occurred. Colorado authorities dismissed the state charges, however, after

1
In relevant part, § 18-3-206(1)(a) provides:

A person commits the crime of menacing if, by any threat or physical
action, he or she knowingly places or attempts to place another person
in fear of imminent serious bodily injury. Menacing is a . . . class 5
felony if committed:
. . . By the use of a deadly weapon or any article used or fashioned in
a manner to cause a person to reasonably believe that the article is a
deadly weapon.

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a federal grand jury issued a two-count indictment against Defendant.

Defendant pleaded guilty to being a felon in possession of a firearm, and the

Government dismissed the remaining charge. The plea agreement noted that an

“[a]dditional investigation indicated that the defendant may have previously pulled

out the shotgun in the apartment of William Spurall . . . in the presence of Mr.

Spurall and Desiree Smith,” Defendant’s aunt. Based on this conduct, the plea

agreement observed that a four-level increase pursuant to U.S.S.G. § 2K2.1(b)(6)

“may apply” because the sawed-off shotgun Defendant possessed “may have been

possessed or used in connection with another felony offense.” Defendant reserved

the right to contest this adjustment and the allegations regarding his conduct with

Mr. Spurall and Ms. Smith prior to his arrest.

The presentence report (PSR) recommended a four-level increase under

§ 2K2.1(b)(6) based on the state-court judge’s finding of probable cause that

Defendant committed felony menacing. Defendant filed a written objection to the

PSR’s recommended enhancement. At the sentencing hearing, the district court gave

Defendant the opportunity to present evidence challenging the § 2K2.1(b)(6)

enhancement. Instead of presenting evidence, Defendant argued the documents

provided in response to his objections to the PSR were unreliable, and therefore did

not prove he committed felony menacing by a preponderance of the evidence. After

the Government declined to present additional evidence in response to Defendant’s

argument, the district court found “that the defendant used or possessed a firearm in

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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). Accordingly, “we review a district court’s legal

interpretation of the Guidelines de novo and its factual findings for clear error.”

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Smith, 534 F.3d at 1226. 2

Although the Government was required to prove by a preponderance of the

evidence any findings necessary to support the district court’s enhancement for

felony menacing, see United States v. Tindall, 519 F.3d 1057, 1063 (10th Cir. 2008),

our review under the clearly erroneous standard is more deferential. See United

States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003). “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.” Id. We will not

find clear error unless “our review of the entire record leaves us with the definite and

firm conclusion that a mistake has been made.” United States v. Ary, 518 F.3d 775,

787 (10th Cir. 2008).

The district court had before it the following documentary evidence supporting

the enhancement: (1) the affidavit of Officer Christopher Cruser (the Cruser

affidavit); (2) Officer Cruser’s narrative remarks in a police report describing the

events surrounding Defendant’s arrest; and (3) a Bureau of Alcohol, Tobacco and

Firearms Report of Investigation (the ATF report). Defendant contends these

2
The Government originally contended we should review Defendant’s
challenge to the sufficiency of the evidence supporting the § 2K2.1(b)(6)
enhancement for plain error only, but conceded at oral argument that this issue was
adequately presented to the district court, and that clear error is the appropriate
standard of review.

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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. Romero-

Hernandez, 505 F.3d 1082, 1085-86 (10th Cir. 2007) (explaining application of

Shepard’s “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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Defendant committed felony menacing by a preponderance of the evidence.

The Cruser affidavit explains that Officer Cruser and fellow Officers Moody,

McCleerey, and Spanos all participated in Defendant’s arrest. After the group

secured Defendant, Officers McCleerey and Spanos went to the address of the caller

who reported Defendant to authorities. As it turned out, the caller was Defendant’s

aunt, Ms. Smith. The Cruser affidavit recounts that Officers McCleerey and Spanos

questioned Mr. Spruell and Ms. Smith about Defendant’s conduct in the apartment

before his arrest. Ms. Smith said that Defendant had an argument with them, entered

the apartment, and began to unload a shotgun. Mr. Spruell stated he told Defendant

to “get that f*****g thing outta here.” After Mr. Spruell made this statement,

Defendant chambered a round, pointed the gun at him, and said, “I’m an OG.” 3 Ms.

Smith said she stepped in front of Defendant, pushed the gun into the air, and kicked

Defendant out the open door into the apartment hallway. Defendant left, and Ms.

Smith called the police. Officer Cruser’s narrative remarks indicate that he

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 defendant’s right not to be sentenced

3
“OG” is most likely shorthand for “Original Gangster,” a phrase coined by
the artist Ice-T. See Ice-T, O.G. Original Gangster (Sire Records 1991).

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on the basis of materially incorrect information, hearsay statements may be

considered at sentencing if they bear “some minimal indicia of reliability.” United

States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995). 4 Defendant contends that our

decision in United States v. Fennell, 65 F.3d 812 (10th Cir. 1995) demonstrates the

documents before the district court could not clear this low hurdle.

In Fennell, we held that the unsworn testimony of a girlfriend taken over the

telephone by a probation officer lacked “the minimal indicia of reliability required”

by the Guidelines to support a sentencing enhancement. Id. at 813. In so doing, we

stressed that the officer interviewing the girlfriend “did not have an opportunity to

observe her demeanor during the interview and therefore could not form any opinion

as to her veracity.” Id. Further, we concluded “no other evidence” corroborated the

preparing officer’s account. Id. At least three important differences are present

here.

First, Officers McCleerey and Spanos had the opportunity to observe Ms.

4
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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Smith’s and Mr. Spruell’s 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. Spruell’s conversation with

Officer Cruser over the telephone, while insufficient by itself to establish that

Defendant committed felony menacing, was consistent with Mr. Spruell’s and Ms.

Smith’s 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 court’s 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
We reject Defendant’s argument that the Colorado felony menacing statute
required Mr. Spruell to be placed in actual fear as an element of the offense—a detail
that was apparently not revealed until Officer Cruser’s telephone conversation with
Mr. Spruell. See People v. Dist. Ct. of Colo. Seventeenth Judicial Dist., 926 P.2d
567, 571 (Colo. 1996) (“To establish that a defendant has committed the crime of
menacing, it is not necessary to prove actual subjective fear on the part of the victim.
Rather, it is only necessary that the defendant be aware that his conduct is practically
certain to cause fear.”) (citations omitted).
6
Because we have determined that the district court could rely on the
documents appended to the PSR in response to Defendant’s objections, we need not
consider whether the statements within the PSR itself concerning the Colorado State
Court’s probable cause finding were also sufficient.

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is unnecessary” because it will not affect a defendant’s 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 court’s 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 court’s explanation until

this appeal. After the district court calculated the Guidelines range and gave

Defendant an opportunity to be heard, the only mention of the enhancement for

felony menacing that defense counsel made was the statement: “I know the

Court . . . imposed a [four]-level enhancement, but I think that our objection, I still

think was a legitimate objection.” This statement clearly referenced defense

counsel’s previous argument concerning the sufficiency of the evidence, not the

7
No substantive difference exists between the current version of
Rule 32(i)(3)(B) and its prior iterations since 1994. See United States v. Cereceres-
Zavala, 499 F.3d 1211, 1215 (10th Cir. 2007).

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district court’s 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).

Defendant’s 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 court’s 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,

8
Even if Atencio did stand for this proposition, we would be compelled to
follow Williamson. See Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir.1996)
(holding that “when faced with an intra-circuit conflict, a panel should follow earlier,
settled precedent over a subsequent deviation therefrom”).

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1180 (10th Cir. 2006) (quotations omitted). Assuming without deciding that

(1) Defendant triggered the district court’s 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

court’s 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 Defendant’s 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 Defendant’s objection would waste judicial

resources. Further, we conclude that where a district court explicitly makes a finding

resolving a defendant’s 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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Williamson, 53 F.3d at 1527 (holding that neglecting to object to district court’s

failure to make findings under Rule 32 “does not constitute the type of ‘exceptional

circumstance’ to which [Federal] Rule [of Criminal Procedure] 52(b) applies”).

Accordingly, we hold that the alleged error here would not “seriously affect the

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

Trujillo-Terrazas, 405 F.3d 814, 818 (10th Cir. 2005).

AFFIRMED.

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