FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 24, 2014
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 13-2066
v. (D.C. No. 12-CR-00696-JAP-1)
(D.N.M.)
ABRAHAM SEDILLO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.
Defendant-Appellant Abraham Sedillo pleaded guilty to robbery and was
sentenced to 51 months’ imprisonment and three years’ supervised release. He
appeals from the sentence, challenging a firearm enhancement imposed under
U.S.S.G. § 2B3.1(b)(2)(C). The district court imposed the enhancement after
finding that Mr. Sedillo brandished a handgun during a restaurant robbery.
United States v. Sedillo, No. 1:12-cr-00696-JAP-1 (D.N.M. May 31, 2013). Mr.
Sedillo argues that the enhancement was improper as it was based on
*
This order and judgment is not binding precedent, except under the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.
uncorroborated hearsay. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Background
Mr. Sedillo pleaded guilty to a September 2011 robbery of Blake’s
Lotaburger in Moriarty, New Mexico, in violation of 18 U.S.C. § 1951 and 18
U.S.C. § 2. 1 R. 7, 9. He received a five-level sentencing enhancement under §
2B3.1(b)(2)(C). According to the presentence report, two men robbed the
restaurant, taking $300 in rolled coins kept in a plastic container called the “safe.”
2 R. 7-8. One robber, who was carrying a folding knife with an orange handle,
stayed at the front of the restaurant with a counter employee while a second
robber, later identified as Mr. Sedillo, went to the back of the restaurant where a
second employee was washing dishes. 2 R. 7-8. Mr. Sedillo grabbed the second
employee by the arm, pointed a gun at him, and took him to the front of the
restaurant, after which the two robbers soon fled. 2 R. 8. The second employee
identified Mr. Sedillo as a former employee of the restaurant. 2 R. 8. Mr. Sedillo
was described as wearing a blue bandana and black gloves and carrying a .357- or
.38-caliber revolver. 2 R. 7-8.
In a subsequent search of the getaway car—registered to Mr. Sedillo’s
wife—police found a folding knife with an orange handle and a bag containing
about $40 worth of coins. 2 R. 8, 10. A black glove, along with drug
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paraphernalia, was discovered in a search of Mrs. Sedillo’s home. 2 R. 9. No
gun was ever recovered. 2 R. 12.
In February, 2012, an agent with the Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF agent”) traveled to Moriarty to interview the second
employee, accompanied by an officer with the Moriarty police department. 2 R.
11. During the interview, the second employee “reported the same information as
before,” adding details about his working with Mr. Sedillo at the restaurant and
Mr. Sedillo’s knowledge of closing patterns. 2 R. 11. The ATF agent also
listened to recorded telephone conversations Mr. Sedillo had with his wife while
in custody. 2 R. 12. During one phone call, the two discussed a firearm,
bandanas, and sweatshirts that had been in the getaway vehicle but not yet found
by police. 2 R. 12.
Several months later, the ATF agent re-interviewed the second employee by
telephone “to determine his knowledge of firearms.” 2 R. 12. During the
interview, the second employee stated that he (1) once owned a .38 caliber
revolver, (2) had been around firearms for many years, and (3) completed basic
training in the military, which furthered his knowledge of weapons. 2 R. 12. The
second employee explained that the revolver Mr. Sedillo was carrying was either
a .357- or .38-caliber but that the two guns were very similar and could be
distinguished only by further inspection. 2 R. 12. Mr. Sedillo declined to
provide his version of events, 2 R. 13, although he admitted during police
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questioning that he worked the evening shift at the restaurant, giving him direct
knowledge of closing procedures, 2 R. 6.
Before sentencing, Mr. Sedillo filed a sentencing memorandum objecting to
the firearm enhancement on two grounds: (1) that no gun was ever recovered;
therefore, the government failed to provide evidence that an actual gun was used
in the robbery; and (2) that the enhancement required a factual finding by a jury,
which did not occur. 1 R. 12.
The ATF agent was present at the sentencing hearing; the second employee
was not. In order to “speed this up,” the district court had the government proffer
the substance of the testimony of the ATF agent with an opportunity for the ATF
agent to agree or disagree with the proffer and add to it. 3 R. 5-8. Mr. Sedillo’s
counsel then cross-examined the ATF agent. There was no objection to this
procedure.
According to the proffer, the ATF agent would testify that the second
employee was knowledgeable about weapons and identified Mr. Sedillo as
carrying either a .357- or .38-caliber revolver during the robbery. 3 R 6-7, 8. In
addition, the ATF agent would testify that he listened to Mr. Sedillo’s recorded
telephone conversations from jail regarding items not yet found by police,
including a gun. 3 R. 7-8. Based on this evidence, the ATF agent would testify
that he thought that the second employee’s testimony was reliable and that Mr.
Sedillo did indeed posses a weapon during the robbery. 2 R. 7.
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On cross examination, the ATF agent agreed with Mr. Sedillo that (1) other
devices, such as pellet guns and BB guns, can look like handguns; (2)
misidentifications can occur in emotionally charged environments such as
robberies; and (3) a gun was never recovered. 3 R. 9-11. Mr. Sedillo made no
other objections to the presentence report, which the district court adopted. 1 3 R.
13.
The district court found by a preponderance that the second employee was
knowledgeable about guns and identified Mr. Sedillo as brandishing a revolver in
connection with the Lotaburger robbery. 3 R. 13-14. Accordingly, the district
court applied the firearm enhancement to Mr. Sedillo’s sentencing calculation. 3
R. 14. This appeal followed.
Discussion
Factual findings supporting a sentence enhancement must be proven by a
preponderance of the evidence, and we review such findings for clear error.
United States v. Tindall, 519 F.3d 1057, 1063-64 (10th Cir. 2008).
Mr. Sedillo acknowledges that reliable hearsay may be used in determining
a non-capital sentence. Aplt. Br. 7 (citing United States v. Bustamante, 454 F.3d
1200, 1202 (10th Cir. 2006)). However, Mr. Sedillo argues that the district court
1
Mr. Sedillo made an earlier objection to the presentence report that is not
relevant to this appeal. 3 R. 2-4.
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erred because the evidence it considered failed to provide the “minimal indicia of
reliability” required by the Sentencing Guidelines, based primarily on our holding
in United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995). Aplt. Br. 8-10. In
his reply brief, Mr. Sedillo also argues that (1) the ATF agent only talked with the
second employee over the phone, (2) the government did not provide an affidavit
by the second employee, (3) the second employee’s allegations about a firearm
are not corroborated, (4) the government cannot explain why the firearm was not
recovered, (5) the government did not provide testimony from the other
Lotaburger employee who was at the counter, (6) the robbery took only 30
seconds to complete, (7) the second employee was under incredible stress, (8) the
ATF agent conceded that a person familiar with firearms could mistakenly
identify an item made to look like a firearm as a real firearm, (9) Mr. Sedillo’s
wife denied that Mr. Sedillo owned or had access to firearms at the time of the
robbery, (10) the ATF agent interviewed the second employee almost a year after
the robbery, and finally, (11) the district court did not explain its credibility
finding. Aplt. R. Br. 2-7. We are not persuaded.
In Fennell, we held that the unsworn testimony of a defendant’s girlfriend
used to support a sentencing enhancement lacked the required “minimal indicia of
reliability” because the probation officer who prepared the presentence report
took her testimony over the telephone and did not personally observe her
demeanor such that he could determine her veracity, and no other evidence
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corroborated the girlfriend’s unsworn testimony. Fennell, 65 F.3d at 813. Rather,
other evidence in the record—namely, the decision by the state to sentence the
defendant to a lesser charge—seemed to undermine the girlfriend’s testimony. Id.
This case is readily distinguishable. Here, an experienced ATF agent—and
not merely the probation officer writing the presentence report—interviewed the
second employee twice, once in person and once over the phone, and found him to
be credible. Second, the second employee’s statements were corroborated by Mr.
Sedillo’s conversations with his wife, during which they specifically discussed
that a gun was one of the three items not yet recovered by the police. Third, the
second employee knew Mr. Sedillo, having worked with him. Finally, nothing in
the record supports a contrary conclusion. The victim’s statements were
consistent both to the ATF agent and to other police officers, and Mr. Sedillo
offered no evidence to the contrary. Thus, we conclude that the district court did
not commit clear error by relying on the hearsay statements for the firearm
enhancement. See United States v. Cook, 550 F.3d 1292, 1297 (10th Cir. 2008).
Mr. Sedillo makes much of the fact that it was critical to cross-examine the
second victim because the gun was never found and the victim may have mistaken
a gun for a gun-like weapon. Aplt. Br. 10. But as noted, reliable hearsay is
permissible for sentencing purposes, and the district court is free to accept or
reject it. See, e.g., United States v. Beaulieu, 893 F.2d 1177, 1179-81 (10th Cir.
1990). Explicit findings as to why the district court found the ATF agent credible
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are not required. 2 Allied Van Lines, Inc. v. Small Bus. Admin., 667 F.2d 751,
753 (8th Cir. 1982) (“It is well established that the trial court does not need to
make specific findings on all facts but only must formulate findings on the
ultimate facts necessary to reach a decision.”); cf. Woods Constr. Co. v. Pool
Constr. Co., 314 F.2d 405, 406-07 (10th Cir. 1963).
Mr. Sedillo also challenges whether the ATF agent who appeared before the
district court actually met with the second employee in person, Aplt. R. Br. 2;
whether the recorded jailhouse conversations mentioned a firearm, Aplt. R. Br. 4;
and whether the record provides any basis that the second employee made a
statement about the gun to anyone other than the ATF agent, Aplt. R. Br. 7.
2
Mr. Sedillo relies on United States v. Palmer, 248 F.3d 569, 571 (7th Cir.
2001) (holding that a district court’s finding on the quantity of crack cocaine was
clearly erroneous in part because it did not explain why a gang member’s
statements about quantity were credible). Palmer is easily distinguished in two
ways. First, in reversing the district court, the Palmer court stressed that a
sentencing court must explicitly demonstrate how it arrived at a particular drug
quantity because of the importance of quantity in sentencing—findings that the
district court failed to provide, including any explanation as to why the drug
amount offered by one gang member was credible. Id. The sentencing
enhancement in this case does not require such a calculation. Second, nothing in
Palmer stands for the proposition that a sentencing court must make a finding of
witness credibility; it merely noted that, among other things, no explanation was
provided as to why a particular witness’ statements were considered credible,
given contrary evidence in the record. Id.
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These issues were not raised below, and we will not address them on appeal. See
United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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