United States v. Fillman

FILED
United States Court of Appeals
Tenth Circuit

May 1, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 07-3226
v. (D.C. No. 06-CR-10218-JTM)
(D. Kan.)
BARRY P. FILLMAN,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.

Defendant Barry Fillman appeals his sentence and conviction on five counts

involving firearm possession. He asserts that there was not sufficient evidence to

sustain a guilty verdict on Count 2 because there was no evidence regarding the

location of the firearm. He also claims that the district court improperly

calculated his sentence of 292 months’ imprisonment. Exercising our jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that sufficient

*
This order and judgment is not binding precedent, except under the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.
evidence was presented to sustain the guilty verdict and that the district court

committed no procedural error in calculating Mr. Fillman’s Guidelines sentence.

Accordingly, we AFFIRM.

I. BACKGROUND

Carrying a gun, Mr. Fillman let himself into the apartment of Tammy

Gannon and her 11-year-old son. He placed the gun under a couch in the living

room and went to Ms. Gannon’s bedroom to lie down. At that time Ms. Gannon,

who was not comfortable with Mr. Fillman being in her apartment, went to her

living room, discovered Mr. Fillman’s gun, and hid the gun. When her son came

home from school a short time later, she asked him to borrow a neighbor’s phone

so that she could call a friend to ask the friend to take both her and her son to her

mother’s home.

Ms. Gannon woke Mr. Fillman when her friend arrived and told him that he

had to leave her apartment. Mr. Fillman became upset, but he started to gather

his things to leave. He told Ms. Gannon that he needed to find something that

was under the couch, and when he could not find his gun, he became even more

upset. He asked Ms. Gannon where “it” was, and she denied knowing what he

was talking about.

Mr. Fillman then left Ms. Gannon’s apartment, but he quickly returned with

a .22 caliber rifle that he had retrieved from his truck. Upon reentering the

apartment, he pulled the blinds, positioned a chair in front of the doorway, sat in

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the chair, and demanded that Ms. Gannon return his gun. While Ms. Gannon tried

to prevent her son from coming out of his room, Mr. Fillman fired two shots from

his rifle in the direction of Ms. Gannon’s head; both shots missed her. When Ms.

Gannon still denied knowing anything about the gun, Mr. Fillman fired again, this

time hitting Ms. Gannon in the buttocks.

After Mr. Fillman fired the third shot, Ms. Gannon’s son came out of his

room. Mr. Fillman then brandished a knife, pointing it at Ms. Gannon’s son.

Frightened, her son retreated to his bedroom. Mr. Fillman eventually left the

apartment, and the police were called to Ms. Gannon’s apartment.

Several days later, police officers, who were aware that Mr. Fillman was

wanted for Ms. Gannon’s shooting, received information about Mr. Fillman’s

location. When the police arrived at that location, one officer saw a man

matching Mr. Fillman’s description in a vehicle. When the officers attempted to

stop the vehicle, Mr. Fillman exited, brandishing an object that the officers

believed to be a weapon but later determined was a long butane lighter. The

officers told Mr. Fillman to drop the item. At that point, Mr. Fillman dropped the

lighter and fled.

The officers gave chase and located Mr. Fillman under a vehicle in an

alley. Mr. Fillman was ordered to come out from under the vehicle. Mr. Fillman

got up, holding a large knife and pointing the blade at an officer. The officer

instructed Mr. Fillman to drop the knife, and Mr. Fillman complied. Instead of

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following orders to get down on the ground, however, Mr. Fillman attempted to

run. One officer was able to apply a taser to Mr. Fillman as he ran, but Mr.

Fillman continued his attempt to escape.

The officers were eventually able to get Mr. Fillman to the ground and

under control so they could take him into custody. When the officers brought Mr.

Fillman to his feet, they discovered a flask underneath him that contained

explosive powder and a fuse. In searching Mr. Fillman, the officers found a bag

of .22 caliber ammunition in his pockets and a tin can that was shaped like a

hockey puck and wrapped in blue tape with a fuse protruding from it.

The officers later searched Mr. Fillman’s pickup truck, which was parked

in the vicinity where he was first seen in the other vehicle. Inside Mr. Fillman’s

truck, the officers found a blue bag containing another flask similar to the one

they had found underneath Mr. Fillman. In their search of Mr. Fillman’s truck,

the officers also located the .22 rifle that was used to shoot Ms. Gannon.

Mr. Fillman was charged with five counts stemming from the incident at

Ms. Gannon’s and his arrest. Specifically, he was charged with possessing the

unregistered destructive devices found on his person and in his vehicle, being a

felon in possession of the firearm and ammunition found on his person and in his

truck, and being a felon in possession of the ammunition that was used in Ms.

Gannon’s apartment. After a trial, a jury found Mr. Fillman guilty on all counts.

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 At sentencing, the district court determined that the advisory Guidelines

range was 292 to 365 months, based on Mr. Fillman’s total offense level of 38

and criminal history category of III. Mr. Fillman was sentenced to 292 months of

imprisonment. He received a sentence of 120 months on each of Counts 1 and 2

and 52 months on each of Counts 3, 4, and 5. Counts 1, 2, and 3 were ordered to

run consecutively, and Counts 4 and 5 were ordered to run concurrent to Count 3.

Mr. Fillman timely appealed.

II. DISCUSSION

A. Sufficiency of the Evidence

Mr. Fillman argues that the evidence was insufficient as to Count 2.

Specifically, he asserts that there was no evidence “concerning a device in a

truck.” Aplt. Br. at 17. His argument rests on the superseding indictment, which,

in Count 2, charged him with possessing “a destructive device (the destructive

device found in the truck).” R., Vol. I, Doc. 31, at 1-2 (Superseding Indictment,

filed Jan. 24, 2007). 1

1
Mr. Fillman also implies that the evidence was insufficient on Count
1, which charged him with possessing a firearm not registered to him and
described the firearm as “a destructive device (the destructive device found
underneath Fillman upon his arrest).” R., Vol. I, Doc. 31, at 1. He alleges that
the government did not place the destructive devices at the correct scenes, the
government did not prove they were destructive devices that were not properly
registered, and that “[t]he most glaring failure” of the government’s ability to
prove its case was in Count 2. Aplt. Br. at 17. However, Mr. Fillman only makes
substantive arguments that pertain to Count 2. “[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
(continued...)

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 A sufficiency of the evidence claim is reviewed de novo. United States v.

Willis, 476 F.3d 1121, 1124 (10th Cir. 2007). The evidence is sufficient if, when

viewed in the light most favorable to the government, a reasonable jury could

have found the defendant guilty beyond a reasonable doubt. Id. “We will not

weigh conflicting evidence” in reviewing the evidence’s sufficiency. United

States v. Sells, 477 F.3d 1226, 1235 (10th Cir. 2007) (quoting United States v.

Summers, 414 F.3d 1287, 1293 (10th Cir. 2005)). It is only when “no rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt” that we will reverse a conviction. Willis, 476 F.3d at 1124

(internal quotation mark omitted) (quoting United States v. Gurule, 461 F.3d

1238, 1243 (10th Cir.2006)). We do not require that the government prove

1
(...continued)
appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.
2007). Because Mr. Fillman’s possible sufficiency-of-the-evidence challenge
concerning Count 1 was not sufficiently briefed, any assertion of error in that
regard is waived. See id. at 1105 (“But these cursory statements, without
supporting analysis and case law, fail to constitute the kind of briefing that is
necessary to avoid application of the forfeiture doctrine.”); Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1169 (10th Cir. 2002) (finding
issue waived for failure to properly brief when argument consisted entirely of
conclusory statements), modified on reh’g, 319 F.3d 1207 (10th Cir. 2003).

Even if we were to consider the sufficiency of the evidence with
regard to Count 1—the only other count pertaining to destructive devices—Mr.
Fillman could not succeed. First, as discussed infra, Mr. Fillman does not
challenge the government’s proof as to an essential element of the offense.
Second, even if we were to believe that the government needed to prove the
location of these destructive devices, the record demonstrates that there was
sufficient evidence on Count 1: the government put forward evidence about these
destructive devices, their location, and that they were not registered.

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everything in the indictment. United States v. Smith, 838 F.2d 436, 439 (10th Cir.

1988). Rather, in our review, we look to the substantive elements of the offense.

See Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979).

Mr. Fillman was convicted under 26 U.S.C. § 5861(d), which provides that

it is illegal for a person “to receive or possess a firearm which is not registered to

him in the National Firearms Registration and Transfer Record.” “From the text

of the statute, the only element is possession of an unregistered firearm.

However, the Supreme Court has read a mens rea requirement into the crime . . .

.” United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir. 2001). Mr. Fillman

does not claim that the government failed to demonstrate that he possessed the

destructive device. Rather, he claims that the government did not demonstrate

that there was a destructive device in a truck. Accordingly, Mr. Fillman’s

argument about the location of the device is misguided and fails because he

presents no evidence that a rational trier of fact could not have found an essential

element beyond a reasonable doubt. See Willis, 476 F.3d at 1124.

Furthermore, even if we were to believe that the location of the destructive

devices had to be demonstrated, testimony was presented that these devices came

from a blue bag that was located in Mr. Fillman’s pickup truck. The government

presented testimony about the mortars and the flasks containing explosive powder

that were found in the blue bag in the truck and testimony that these items were

destructive devices. There also was evidence that the National Firearms

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Registration was searched multiple times for Mr. Fillman under his real name and

aliases and that the agents did not find any firearms registered to Mr. Fillman or

any person with the name “Fillman.” Accordingly, this evidence, when taken in

the light most favorable to the government, would be sufficient to prove not only

that there were unregistered destructive devices but also their location. 2

B. Sentencing

We review a sentence for reasonableness, giving deference to the district

court under “the familiar abuse-of-discretion standard.” Gall v. United States,

128 S. Ct. 586, 594 (2007); see also United States v. Smart, 518 F.3d 800, 805

(10th Cir. 2008). Reasonableness “has both procedural and substantive

components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007),

overruled in part on other grounds by Irizarry v. United States, 128 S. Ct. 2198,

2
The government suggests that Mr. Fillman’s argument could more
appropriately be considered one relating to “an amendment to the charging
document and a variance to the charging terms.” Aplee. Br. at 23. Even if we
were to consider this argument under such a framework—a framework that Mr.
Fillman never invoked—this would not change our conclusion. There are two
kinds of variances: a constructive amendment and a simple variance. Sells, 477
F.3d at 1237. A constructive amendment “occurs when the district court’s
instructions and the proof offered at trial broaden the indictment.” Id. Here, the
proof offered at trial did not broaden the indictment; as discussed supra, the
government offered proof regarding the location of the devices. “A simple
variance arises when the evidence adduced at trial establishes facts different from
those alleged in the indictment, . . . . The defendant bears the burden of proof
both to show that a variance occurred and that it was fatal.” Id. Here, not only
did Mr. Fillman fail to meet this burden, in that he did not argue that there was a
variance at all, but, as discussed supra, the evidence at trial demonstrated the
location of the destructive devices, as stated in the superseding indictment. Thus,
there was no constructive amendment or simple variance.

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2201 n.1, 2203-04 (2008); see Gall, 128 S. Ct. at 597. Because the starting point

for any sentence is a properly calculated Guidelines range, we must first ensure

that the district court made no procedural errors. United States v. Todd, 515 F.3d

1128, 1134-35 (10th Cir. 2008). In so doing, we review the district court’s legal

conclusions de novo and factual findings for clear error. Id. at 1135. 3

Mr. Fillman alleges the district court erred in the following six ways: (1)

grouping the counts of conviction; (2) making an upward departure without

notice; (3) imposing consecutive sentences above the statutory maximum; (4)

applying certain enhancements; (5) finding facts when determining to apply the

enhancements in violation of United States v. Booker, 543 U.S. 220 (2005); and

3
The government contends that Mr. Fillman failed to raise a number
of issues before the district court and, thus, plain error review should apply.
Under plain error review, a defendant “must show: (1) an error, (2) that is plain,
which means clear or obvious under current law, and (3) that affects substantial
rights. If he satisfies these criteria, this Court may exercise discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Goode, 483 F.3d 676, 681 (10th Cir.
2007) (internal quotation marks omitted) (quoting United States v. Kimler, 335
F.3d 1132, 1141 (10th Cir. 2003)). There is no dispute that Mr. Fillman objected
to the enhancements that were applied to his sentencing, the calculation of his
offense level, and the consecutive sentences he received. As to the remaining
claims, we need not delay in distinguishing between those claims Mr. Fillman
properly preserved and those he forfeited. Regardless of what standard of review
we apply, the result remains the same, for we find no error as to any of the issues
Mr. Fillman raises on appeal. See United States v. Martinez-Barragan, 545 F.3d
894, 899 (10th Cir. 2008) (“Since we ultimately conclude that the district court
did not commit any error at all, the difference between plain error and harmless
error is largely immaterial.”).

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(6) failing to give him a meaningful opportunity to be heard. 4 He also claims that

the judge relied on undisclosed evidence that was reviewed during a recess in the

sentencing hearing. We find no merit in any of these arguments.

First, with regard to the district court’s use of grouping, we find no

procedural error. When counts involve substantially the same harm, the counts

are grouped and the defendant’s offense level is the offense level for the most

serious of the counts. U.S. Sentencing Guidelines Manual §§ 3D1.2, 3D1.3(a).

That is precisely how Mr. Fillman’s counts were grouped. All of Mr. Fillman’s

counts of conviction were grouped together because they involved substantially

the same harm. His base offense level was set at 22 based on his conviction on a

count of unlawful possession of a firearm after being convicted of a felony crime

4
Mr. Fillman mistakenly describes as substantively unreasonable the
district court’s application of consecutive sentences and sentencing
enhancements. Both of these alleged errors pertain to the proper calculation of a
Guidelines sentence and are thus procedural errors. See Todd, 515 F.3d at 1134-
35 (“[O]ur first task remains to ‘ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range . . . [or] selecting a sentence based on clearly
erroneous facts.’” (alteration in original) (citing Gall, 128 S. Ct. at 597 )).
Substantive reasonableness, on the other hand, “addresses whether the length of
the sentence is reasonable given all the circumstances of the case in light of the
factors set forth in 18 U.S.C. § 3553(a).” United States v. Huckins, 529 F.3d
1312, 1317 (10th Cir. 2008) (internal quotation marks omitted) (quoting United
States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.), cert. denied, 128 S. Ct.
161 (2008)). After careful review of Mr. Fillman’s brief, we can find no proper
claim regarding substantive reasonableness. Thus, we address all of his
contentions as claims of procedural error.

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of violence, which was the most serious of his counts of conviction. The counts

were properly grouped pursuant to the Guidelines.

Next, Mr. Fillman’s claim that the district court made an upward departure

without notice fails because there was no upward departure. “[W]hen a court

reaches a sentence above or below the recommended Guidelines range through

application of Chapters Four or Five of the Sentencing Guidelines, the resulting

increase or decrease is referred to as a ‘departure.’” Atencio, 476 F.3d at 1101

n.1. Here, the district court did not depart from the recommended Guidelines

range by applying Chapters Four or Five of the Guidelines. Rather, the district

court applied a sixteen-level increase to Mr. Fillman’s base offense level due to

offense characteristics and the application of three different enhancements. And

it then set his sentence at the low end of the applicable Guidelines range. 5

Third, the district court did not improperly sentence Mr. Fillman above the

statutory maximum, as Mr. Fillman alleges. After the sixteen-level increase was

5
There has been confusion in our “sentencing nomenclature” with
regard to variances and departures. Atencio, 476 F.3d at 1101 n.1. Even if we
were to assume that Mr. Fillman fell victim to this confusion, he could not prevail
because there also was no variance. We clarified that “[w]hen a court enhances
or detracts from the recommended range through application of § 3553(a) factors,
[] the increase or decrease is called a ‘variance.’” Id. Here, the district court
sentenced Mr. Fillman at the low end of the applicable Guidelines range. The
district court stated that it considered the § 3553(a) factors, but it did not sentence
Mr. Fillman above or below the applicable Guidelines range based on its
consideration of those factors. Thus, whether we consider Mr. Fillman’s
argument to pertain to a departure or a variance, we could not find any support for
his claim because neither a departure nor a variance occurred when Mr. Fillman
was sentenced.

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applied to Mr. Fillman’s base offense level, his total offense level was 38. This

yields an applicable Guidelines range of 292 to 365 months. The district court’s

sentence of 292 months—the low end of that range—was proper. The Guidelines

instruct: “If the sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed on one or

more of the other counts shall run consecutively, but only to the extent necessary

to produce a combined sentence equal to the total punishment.” U.S.S.G. §

5G1.2(d). 6 Here, the highest statutory maximum is 10 years, which applies to

each of Counts 1 and 2. 26 U.S.C. § 5871. Likewise, there is a statutory

maximum of 10 years for the remaining counts. 18 U.S.C. § 924(a)(2). Thus, the

district court properly reached a total punishment of 292 months—the low end of

6
The Guidelines commentary to this section further explains:

The combined length of the sentences (“total punishment”) is
determined by the court after determining the adjusted
combined offense level and the Criminal History Category.
...
Usually, at least one of the counts will have a statutory
maximum adequate to permit imposition of the total
punishment as the sentence on that count. The sentence on
each of the other counts will then be set at the lesser of the
total punishment and the applicable statutory maximum, and be
made to run concurrently with all or part of the longest
sentence. If no count carries an adequate statutory maximum,
consecutive sentences are to be imposed to the extent
necessary to achieve the total punishment.

U.S.S.G. § 5G1.2 cmt. n.1. Mr. Fillman’s situation falls into the latter category:
no one count carries a statutory maximum equal to the total punishment under the
Guidelines.

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the Guidelines range—when it sentenced Mr. Fillman to the statutory maximum

on each of Counts 1 and 2, running consecutively, and then less than the statutory

maximum on the remaining three counts, with Count 3 running consecutively to

Counts 1 and 2 and running concurrently to Counts 4 and 5. See United States v.

Ivory, 532 F.3d 1095, 1107-08 (10th Cir. 2008) (“[I]f the defendant has been

convicted of several offenses, it is hardly unreasonable to stack the statutory

sentences to reach a presumptively reasonable Guidelines sentence.” (citing

U.S.S.G. § 5G1.2(d)). 7

Mr. Fillman next challenges both the sentencing enhancements that were

applied and how the district court determined that these enhancements applied.

Mr. Fillman asserts that the district court violated Booker when it found facts for

the enhancements. However, “Booker makes clear that judicial fact-finding by a

preponderance of the evidence standard is unconstitutional only when it operates

7
There is little doubt that the district court properly utilized
consecutive sentences. A number of circuits have come to similar conclusions in
interpreting § 5G1.2. See United States v. Thompson, 523 F.3d 806, 814 (7th
Cir.) (“[T]he advisory Guidelines range was life imprisonment. The district court
thought a life sentence was warranted, and it did not err when it imposed
consecutive maximum sentences on each count of conviction to reach an
equivalent sentence.”), cert. denied, 129 S. Ct. 770 (2008); United States v.
Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (“We have held that § 5G1.2(d)
requires that sentences run consecutively to the extent necessary to reach the
defendant’s guidelines range.”); United States v. Rogers, 423 F.3d 823, 828 (8th
Cir. 2005) (“A sentence equal to the ‘total punishment’ is then imposed on each
count (or the statutory maximum sentence, if less), and the individual sentences
are imposed to run concurrently, unless the count carrying the highest statutory
maximum is less than the total punishment, in which case consecutive sentencing
is employed to produce a combined sentence equal to the total punishment.”).

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to increase a defendant’s sentence mandatorily.” United States v. Hall, 473 F.3d

1295, 1312 (10th Cir. 2007) (emphasis added). Here, the district court referred to

the “advisory guideline range” and also indicated that it had considered the

factors of section 3553(a) and felt that the sentence was otherwise appropriate.

R., Vol. IV, Tr. at 315-16 (Sentencing Hearing, dated July 23, 2007).

Accordingly, it is clear that the district court was applying the Guidelines in a

discretionary manner, and there is no Booker violation. See Hall, 473 F.3d at

1312.

We turn next to Mr. Fillman’s challenges to the application of three

enhancements. Mr. Fillman first outlines his objection to a four-level

enhancement for possession of a firearm in connection with another felony

offense pursuant to section 2K2.1(b)(6) of the Guidelines. He claims that the

application notes exclude the enhancement when the conviction offense is for the

possession of a firearm. Mr. Fillman’s argument misreads the application notes.

The enhancement applies “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)

(emphasis added). The application notes indicate that “another felony offense”

“means any federal, state, or local offense, other than the explosive or firearms

possession or trafficking offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” Id. § 2K2.1 cmt. n.14(C). Accordingly, the enhancement is

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excluded only when the other felony offense— that is serving as the basis of the

enhancement—is the possession of a firearm, and not when the conviction offense

is. Here, the “other felony offense” serving as the basis of the enhancement is

aggravated assault, which is a felony under Kansas law. Kan. Stat. Ann. § 21-

3410. Thus, the enhancement was appropriate.

Next, Mr. Fillman challenges a two-level victim-related enhancement,

arguing that the term “victim” in the Guidelines was not intended to apply to Ms.

Gannon or her son. The vulnerable-victim enhancement applies when the

defendant knew or should have known that the victim was vulnerable. U.S.S.G. §

3A1.1(b)(1). A vulnerable victim is any person “(A) who is a victim of the

offense of conviction and any conduct for which the defendant is accountable

under §1B1.3 (Relevant Conduct); and (B) who is unusually vulnerable due to

age, physical or mental condition, or who is otherwise particularly susceptible to

the criminal conduct.” Id. § 3A1.1 cmt. n.2 (emphasis added). Mr. Fillman

claims that the term “victim” does not apply to “indirect or secondary victims.”

Aplt. Br. at 14 (citing U.S.S.G. § 3D1.2 cmt. n.2). However, the commentary Mr.

Fillman cites is from a Guidelines section pertaining to grouping, which provides

no guidance on the vulnerable-victim enhancement.

When we look to the vulnerable-victim enhancement, the Guidelines

instruct us to look to all relevant conduct and not just the offense of conviction.

U.S.S.G. § 3A1.1 cmt. n.2; see also United States v. Holbert, 285 F.3d 1257,

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1260-61 (10th Cir. 2002). Under the Guidelines, relevant conduct includes “all

acts and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). Mr.

Fillman’s enhancement applied on the basis of his interaction with Ms. Gannon’s

eleven-year-old son, during which he acted in a threatening manner toward the

boy after having shot his mother. This certainly would be conduct relevant to Mr.

Fillman’s possession of the cartridge casings from the rounds he had just fired in

Ms. Gannon’s apartment. Thus, the district court’s consideration of Ms.

Gannon’s son as a “victim” is not error. 8

Mr. Fillman’s final enhancement objection pertains to a six-level

enhancement for assaulting a law enforcement officer pursuant to section 3A1.2

of the Guidelines. Mr. Fillman reiterates his claim that the term “victim” would

not include the officer and also suggests that the conduct could not serve as the

basis for an enhancement because it was not proven at trial. As discussed supra,

8
We note that our consideration of the issue is limited to Mr.
Fillman’s argument that “‘[t]he term ‘victim’ is not intended to include indirect or
secondary victims.’” Aplt. Br. at 14 (quoting U.S.S.G. § 3D1.2 cmt. n.2). Any
additional argument about this enhancement that could have been made by Mr.
Fillman is forfeited in this appeal because he failed to make such an argument in
his opening brief. See Bronson, 500 F.3d at 1104; see also Fed. R. App. P.
28(a)(9)(A) (stating that an appellant’s brief must contain “appellant’s
contentions and the reasons for them”). Thus, our resolution of this issue does
not decide whether Ms. Gannon’s son was shown to be a “vulnerable” victim.
Our decision is limited to resolving the issue Mr. Fillman presented on appeal:
whether Ms. Gannon’s son could be considered a “victim” for purposes of this
enhancement.

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a sentencing court can “enhance a defendant’s sentence using uncharged conduct

proven to the court by a preponderance of the evidence.” United States v.

Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir. 2006). And Mr. Fillman’s

argument about who is a “victim” relies on the Guidelines grouping provisions,

which are inapposite.

With regard to the enhancement for assaulting a law enforcement officer,

the plain language of the Guidelines indicates that the enhancement applies “[i]f,

in a manner creating a substantial risk of serious bodily injury, the defendant . . .

knowing or having reasonable cause to believe that a person was a law

enforcement officer, assaulted such officer during the course of the offense or

immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1). Here, Mr. Fillman

brandished a large hunting knife at a police officer, who was in uniform, when he

was attempting to flee. This fits squarely within the enhancement. Accordingly,

there was no error in applying the enhancement. See United States v. Coldren,

359 F.3d 1253, 1255-56 (10th Cir. 2004) (affirming the application of the

enhancement when the defendant pleaded guilty to being a felon in possession of

a firearm).

Mr. Fillman’s remaining two claims of error are that he had no meaningful

opportunity to be heard and that the judge relied on undisclosed evidence in

determining his sentence. Both arguments are foreclosed by the record. The

record clearly demonstrates that the district court gave Mr. Fillman’s attorney the

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opportunity to make arguments before and at sentencing, and that the district

court gave Mr. Fillman himself the opportunity to address the court. The district

court specifically asked Mr. Fillman if he would like to be heard before the

sentence was imposed. Mr. Fillman’s only response was: “Wouldn’t know where

to start, Your Honor.” R., Vol. IV, Tr. at 326.

As to the consideration of undisclosed evidence, the record indicates that

the district court took a recess to consider the presentence report and the

arguments presented both at the sentencing hearing and in writing. Mr. Fillman

claims that the district court “referred to unknown and undisclosed evidence.”

Aplt. Br. at 12. Our careful review of the transcript of the sentencing hearing

reveals no such reference. When the hearing reconvened, the district court stated:

“I have reviewed the evidence that was submitted or presented this morning, have

gone back over the presentence report and the information contained in there. I

have reviewed the objections again, which we’ll take up in a moment.” R., Vol.

IV, Tr. at 314. The district court then announced a tentative sentence before

giving Mr. Fillman’s attorney the opportunity to speak to the objections he had

filed. Thus, Mr. Fillman’s arguments that he had no opportunity to be heard and

was sentenced on the basis of undisclosed evidence lack any support in the

record.

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 III. CONCLUSION

There was sufficient evidence to convict Mr. Fillman, and the district court

made no errors in calculating Mr. Fillman’s sentence. We AFFIRM.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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