FILED
United States Court of Appeals
Tenth Circuit
March 21, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-3149
EDWARD E. MOORE, (D.C. No. 09-20139-01-JWL)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HOLMES, and BALDOCK, Circuit Judges, and JOHNSON **, District
Judge. ***
After police discovered two firearms in the vehicle from which he fled,
Defendant Edward Moore pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence based
upon a picture discovered on Defendant’s cell phone that depicted him holding three
*
This order and judgment is not binding precedent except under the doctrines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.
**
Honorable William P. Johnson, United States District Judge, District of New
Mexico, sitting by designation.
***
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is therefore
submitted without oral argument.
other firearms. See U.S.S.G. §§ 1B1.3, 2K2.1(a)(4), and 2K2.1(b)(1)(A). The
district court also refused to reduce his sentence for acceptance of responsibility.
See U.S.S.G. § 3E1.1(a). Defendant appeals, arguing the district court clearly erred
in making both of those decisions. Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742, we affirm.
I.
On October 24, 2009, a police officer attempted to stop a vehicle in Kansas
City, Kansas. The car ran straight into another vehicle. The driver fled the disabled
vehicle, escaping police. The passenger, Defendant, also fled but police soon
captured him. Subsequently, police discovered a pistol on the driver’s seat and a
shotgun on the passenger’s seat of the vehicle. A check of Defendant’s criminal
history revealed he had previously been convicted of two crimes, each punishable by
a term of imprisonment exceeding one year, in February and May 2009. Based upon
the pistol and shotgun, a grand jury indicted Defendant with one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Defendant pled guilty without a plea agreement. Initially, the presentence
report (PSR) recommended an offense level of twelve, reflecting a two-level
reduction for acceptance of responsibility. See U.S.S.G. §§ 2K2.1(a)(6) and
3E1.1(a). The PSR also noted that upon Defendant’s arrest the police seized
Defendant’s cell phone. Examination of the cell phone revealed a photograph of
Defendant holding three firearms (none of which were the pistol and shotgun found
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in the car), one of which contained a large-capacity magazine. The file properties
of the photograph indicated it was created on October 8, 2009. Nonetheless, the PSR
states that, according to defense counsel, Defendant claimed a friend had sent the
picture to Defendant’s cell phone on October 8, 2009, “but the picture itself was
taken at an earlier date.” ROA Vol. 3 at 6. Thus, the PSR did not initially consider
the picture to constitute evidence of relevant conduct that would increase
Defendant’s base offense level. See U.S.S.G. § 1B1.3.
Thereafter, the Government made one objection to the PSR: that the
photograph found on Defendant’s phone constituted evidence of relevant
conduct—possession of three additional firearms—warranting an enhancement of his
offense level. The Government also revealed to Probation and Defendant that an
expert had confirmed, and would so testify, that the photograph at issue was taken
on October 8, 2009 by Defendant’s cell phone, and not sent and saved to his cell
phone from some other source on that date. Defense counsel simply responded he
would “conduct[] further investigation into the issues presented by the Government.”
Citing United States v. Windle, 74 F.3d 997, 1000–01 (10th Cir. 1996), the probation
officer then amended the PSR to explain that if the district court found the photo was
taken on October 8, 2009, when Defendant was a felon and thereby prohibited from
possessing firearms, his possession of the three firearms in the picture would
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constitute relevant conduct. 1 Because the photo depicts Defendant holding three
weapons, one of which contained a high-capacity magazine, the Sentencing
Guidelines recommend an offense level of twenty-two. See U.S.S.G.
§§ 2K2.1(b)(1)(A) and 2K2.1(a)(4).
At the sentencing hearing, the Government called the computer forensics
expert who had examined Defendant’s cell phone. He testified that the photo in
question, referred to as photo number 90, was taken on October 8, 2009 by
Defendant’s cell phone camera. The expert further explained that no. 90 was one
photo in a series of three photographs taken by Defendant’s cell phone camera within
three minutes on October 8, 2009. The first depicts two pistols and “an Uzi-looking
weapon with an extended clip on a kitchen table” with “someone’s hand apparently
throwing up a gang sign.” ROA Vol. 2 at 53–54. The second shows Defendant
holding one of the three firearms in the same kitchen area. Id. at 54. And, the
third—no. 90—depicts Defendant in the same kitchen area holding the three
firearms. Id. at 55.
At that point, Defendant proffered another explanation of photo no. 90
separate from his claim that October 8 was the date he received that picture on his
camera from a friend—the same explanation he proffers to us. Defendant told the
1
We decided in Windle that when a defendant is charged with possessing
firearms as a felon, relevant conduct clearly includes unlawfully possessing other
firearms within the five months prior to his arrest for the charged offense. 74 F.3d
at 1000–01.
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district court the photo is actually a photo of a photo; the original—the photo in the
photo—was taken some time before October 8, 2009. Consequently, Defendant
maintained that the Government had not met its burden of proving the original photo
was taken after either of his felony convictions in February and May 2009. On
cross-examination, the expert agreed that three other photos also found on
Defendant’s cell phone appeared to be pictures of pictures, i.e., Defendant had used
his cell phone camera to take a picture of an existing picture.
The district court, however, was not convinced. Instead, the court was
“persuaded that it is more likely than not that the photo . . . was taken of [Defendant]
possessing the three weapons depicted in that picture on or about the date of October
9 of 2009.” ROA Vol. 2 at 69. Based upon the expert’s testimony, the court
concluded “it is clearly not possible that the photo was sent to [Defendant’s cell
phone] camera from . . . some other camera or that it was uploaded from a
computer.” Id. As to Defendant’s photo of a photo argument, the court explained
that during the sentencing hearing Defendant had produced three examples of cell
phone photos of photos, but that:
Those three photos of photos . . . are quite clearly and unmistakably
photos of photos. . . . On the other hand, there’s absolutely nothing
about the picture [of Defendant with three firearms] that would give any
indication that it was a photo of a photo, and it’s included in a sequence
of three photos that seem to be taken, by the meta data supplied from
the review of the camera, on or about the same time. I find it highly
unlikely that there were three other photographs which were then in turn
photographed by the cell phone camera at or about that time. I believe
it is far more likely, to the point that I am totally persuaded, that those
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photos were taken when the meta data reflects they were.
Id. at 69–70. The court therefore sustained the Government’s objection, deeming
photo no. 90 evidence of relevant conduct. Subsequently, the court explained:
Because [Defendant] has . . . denied without a reasonable basis to do so
the relevant conduct here, I am denying him acceptance of
responsibility. He was certainly entitled to put the government to their
proof, but he did not accept responsibility as to that relevant conduct,
and I believe that is indicative of his lack of acceptance of
responsibility, and therefore he should not receive any reduction of his
total offense level for that purpose.
ROA Vol. 2 at 71–72.
II.
We review a district court’s legal interpretation of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Orr, 567 F.3d 610,
614 (10th Cir. 2009). “The [G]overnment bears the burden of proving sentencing
enhancements by a preponderance of the evidence.” Id. Defendant asserts the
district court clearly erred because there is no way to tell from the photo discovered
on his cell phone if he actually possessed the three weapons depicted on October 8,
2009; rather, he claims it could be a photo of a photo that was taken at some earlier
time. He therefore solely raises a factual challenge to the district court’s
enhancement of his offense level.
The district court heard the testimony of an expert, reviewed the cell phone
photos of the weapons and Defendant holding the weapons, and the cell phone photos
of photos. The court concluded as a matter of fact the photo of Defendant with three
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firearms was an original, not a photo of a photo, taken by Defendant’s cell phone
camera on October 8, 2009—when he was a felon and prohibited from carrying
firearms. We too have reviewed the expert’s testimony and cell phone photographs
submitted and find nothing to suggest the district court erred in its factual
determination that photo no. 90 depicts Defendant holding three firearms as a felon
on October 8, 2009.
Lastly, Defendant challenges the district court’s refusal to reduce his offense
level for acceptance of responsibility. “‘Determination of acceptance of
responsibility is a question of fact reviewed under a clearly erroneous standard.’”
United States v. Tom, 494 F.3d 1277, 1281 (10th Cir. 2007) (quoting United States
v. Gauvin, 173 F.3d 798, 805 (10th Cir. 1999)). Defendant bore the burden of
proving he was entitled “to such a reduction by a preponderance of the evidence.”
United States v. Collins, 511 F.3d 1276, 1279 (10th Cir. 2008).
The district court did not clearly err in refusing to reduce Defendant’s base
offense level for acceptance of responsibility. Defense counsel told the probation
officer in charge of preparing the PSR that Defendant had told him the photo was
taken at some point before October 8, but was sent to his cell phone by a friend on
October 8. The Government then told both defense counsel and the probation officer
that a forensics expert concluded the picture had been taken by Defendant’s cell
phone camera on October 8. Defendant did not change his story. At the beginning
of the sentencing hearing, Defendant confirmed that he had reviewed the PSR with
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counsel. ROA Vol. 2 at 26. He made no objection or correction to the PSR at that
time. But after the expert testified at the sentencing hearing, defense counsel stated
that what he had actually told the probation officer was that Defendant had told
counsel that the picture had not been taken by his cell phone and that counsel had
assumed that Defendant meant the photo had been sent to his cell phone from a
friend who actually took the picture. ROA Vol. 2 at 65. He further explained that
after receiving the Government’s objection to the PSR he pressed Defendant on the
origin of the photo and Defendant “confirmed . . . that he told me the picture was not
taken—the original picture was not taken with his cell phone.” Id. Enter the photo
of the photo theory. But instead of relaying this explanation to the probation officer
at that time or correcting the misstatement in the report at the beginning of the
hearing, defense counsel waited until after the expert confirmed at the sentencing
hearing that photo no. 90 had been taken by Defendant’s cell phone camera (and not
by another camera that was then sent to Defendant) to claim it was a photo of a
photo. Shifting explanations of criminal behavior hardly indicates acceptance of
responsibility. Therefore, the district court did not clearly err in concluding
Defendant was not entitled to an acceptance of responsibility reduction. For the
reasons explained herein, the district court’s final sentence of Defendant is
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AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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