FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 7, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1050
NICKIE NATHANIAL RICO,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CR-00145-PAB-1)
_________________________________
J. Lance Hopkins, CJA Appellate Panel Member, Tahlequah, Oklahoma, for Defendant-
Appellant.
Elizabeth S. Ford Milani, Assistant United States Attorney (Jason R. Dunn, United States
Attorney with her on the brief), Denver, Colorado for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, EBEL, and CARSON, Circuit Judges.
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CARSON, Circuit Judge.
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Defendants often assert the affirmative defense of self-defense to justify
conduct that results in injury to another. And as common sense tells us, self-defense
means defending oneself from the threat of harm. So to invoke self-defense, one
must face imminent danger that he did not cause. Defendant Nickie Nathanial Rico
faced no such danger when he fired several shots in the late hours of the night across
a busy downtown Denver street. As a result of his actions, the government charged
Defendant with one count of possessing a firearm as a felon in possession under 18
U.S.C. § 922(g)(1), and he pleaded guilty. At sentencing, the Presentence
Investigation Report (“PSR”) applied a cross-reference for attempted murder. Over
Defendant’s objection, the district court concluded the PSR appropriately applied the
cross-reference and sentenced Defendant to 97 months’ imprisonment. Our
jurisdiction arises under 28 U.S.C. § 1291. We affirm.
I.
Bar patrons poured onto Market Street as downtown Denver shut down for the
night while Defendant and Armando Rogelio Durete (“Durete”) started exchanging
words with a rival gang. The verbal altercation began in a parking lot near a popular
restaurant at 15th Street. Gerald Wright (“Wright”) stood on the other side of the
street. Defendant shouted expletives and threw gang signs. Either Defendant or
Durete yelled, “Who wants to get painted?” while holding a gun in his hand, and the
other lifted his shirt to show a gun in the waistband of his pants. As tensions rose, a
security guard nearby saw Defendant kneel behind a taco truck, display a firearm,
and fire the first several shots across Market Street toward a group of people near
Wright. Wright fired several shots back. One shot from Defendant’s direction struck
Wright in the leg causing serious bodily injury. Another shot struck an innocent
bystander in the back. And Defendant suffered a gunshot wound to his thumb and
another to his arm. After the shooting, Defendant and Durete ran back to
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Defendant’s vehicle in the parking lot. Defendant placed the firearm on the front
seat, and later testing confirmed Defendant’s DNA on the firearm.
The government charged Defendant with one count of possession of a firearm
as a prohibited person under 18 U.S.C. § 922(g). Ordinarily, that would have
resulted in a United States Sentencing Guideline (“Guidelines” or “U.S.S.G.”) range
of 24 to 30 months’ imprisonment. But here, the PSR concluded Defendant faced a
Guidelines range of 78 to 97 months’ imprisonment. To arrive at this range, the PSR
applied U.S.S.G. § 2K2.1(c)(1)(A) and § 2X1.1 to cross-reference the substantive
offense committed with the firearm—attempted murder.1 Defendant objected to this
particular application of the Guidelines, contending the government failed to prove
he did not act in self-defense.
The district court concluded Defendant’s conduct amounted to attempted
murder and adopted the PSR’s offense level calculation. Defendant received 97
months’ imprisonment.
1
U.S.S.G. § 2K2.1(c)(1) provides that “if the defendant used or possessed any
firearm . . . cited in the offense of conviction in connection with the commission or
attempted commission of another offense . . . apply § 2X1.1 in respect to that other
offense, if the resulting offense level is greater than that determined above.” In turn,
§ 2X1.1(c)(1) provides that “when an attempt . . . is expressly covered by another
offense guideline section, apply that guideline section.” The Guidelines expressly
cover the attempted murder offense in § 2A2.1(a) establishing the base offense level
at 27. Section 2A2.1(b)(1)(B) imposes a 2-level increase when a victim sustains a
serious bodily injury. And when a defendant accepts responsibility, a PSR can apply
a 3-level decrease. The PSR calculated Defendant’s final offense level at 26,
combined it with his criminal history category of III, and arrived at the Guideline
range at issue here: 78 to 97 months’ imprisonment.
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II.
“We review the factual findings underlying a district court’s sentencing
determination for clear error and review the underlying legal conclusions de novo.”
United States v. Hooks, 551 F.3d 1205, 1216 (10th Cir. 2009) (citing United States v.
Swanson, 253 F.3d 1220, 1222 (10th Cir. 2001)). Clear error exists when a factual
finding lacks any factual support in the record, or after reviewing the evidence, the
record convinces us the district court made a mistake. Id. (citation omitted). And
we give “due deference to the district court’s application of the Guidelines to the
facts.” United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008) (citing United
States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)).
III.
Defendant contends the district court incorrectly found that he did not act in
self-defense, and therefore erred in applying the Guideline enhancement for
attempted murder. Defendant also contends that Colorado, and not federal, self-
defense law applies. We need not decide which law applies because Defendant loses
under either law.2
2
Defendant also insists the government needed to show Defendant had not
acted in self-defense by clear and convincing evidence because the enhancement had
a dramatic effect citing United States v. Hymas, 780 F.3d 1285 (9th Cir. 2015). But
we recently declined to adopt such a standard—thus foreclosing the issue. See
United States v. Robertson, 946 F.3d 1168, 1171–72 (10th Cir. 2020) (citations
omitted). And the district court judge determined that even under a clear and
convincing standard his decision remained the same. ROA Vol. III at 35. So not
only does the clear and convincing standard not apply, but also the district court
concluded the facts met it.
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Under federal law, “[a] person may resort to self-defense if he reasonably
believes that he is in imminent danger of death or great bodily harm, thus
necessitating an in-kind response.” United States v. Toledo, 739 F.3d 562, 567 (10th
Cir. 2014) (citations omitted). So self-defense only requires the defendant
reasonably believe he needed to use deadly force in that context. Id. Colorado
allows a person to use physical force to defend himself from what “he reasonably
believes to be the use or imminent use of unlawful physical force by that other
person.” Colo. Rev. Stat. Ann. § 18-1-704(1). And an initial aggressor who does not
effectively withdraw and communicate that withdrawal cannot argue self-defense
under Colorado law. Colo. Rev. Stat. Ann. § 18-1-704(3)(b). Defendant asserts
Wright drew his gun first. Thus, Defendant argues the district court erred in finding
that he did not act in self-defense. But Defendant fails to support that assertion with
record evidence. In fact, the record supports the district court’s factual finding that
the evening’s events did not trigger a reasonable belief that Defendant needed to use
deadly force in self-defense.
The district court found Defendant’s actions ultimately provoked the gunfight
in downtown Denver as the streets overflowed with bar patrons. And in that
gunfight, Defendant shot multiple shots directly at someone. Defendant asks us to
infer that Wright’s conduct supports the assertion that he was the initial aggressor.
Defendant mentions that Wright fled the scene, did not report the shooting, and did
not seek medical attention at the nearest hospital. We cannot oblige for two reasons.
First, Wright’s conduct does not necessarily suggest guilt. And second, the record
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supports the district court’s conclusion that Defendant acted first. Defendant flashed
his weapon, threw gang signs in the parking lot, and yelled inflammatory comments
at the rival gang before any shots fired. Record evidence also contains the testimony
of a security guard that Defendant fired the first shots and Defendant’s own statement
that Wright returned fire. Moreover, no allegation exists in the record that Wright
threatened Defendant by the verbal altercation. So abundant facts in the record
support the district court’s conclusion that Defendant cannot claim self-defense
because Defendant’s actions provoked the conflict. Nor do the events suggest
Defendant had a reasonable belief that he needed to use deadly force. And we do not
find clear error when ample evidence in the record supports the district court’s
factual finding. See Hooks, 551 F.3d at 1217.
Because the record shows the district court did not clearly err in finding
Defendant cannot claim self-defense, we conclude the district court did not err by
applying the sentencing enhancement under the Guidelines.3
AFFIRMED.
3
Defendant also contends that he lacked the requisite mens rea to satisfy the
state attempted murder offense because he acted in self-defense when Wright drew
his weapon first. Defendant fails to adequately brief this argument, so we consider it
waived. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)
(citations omitted). (“Arguments inadequately briefed in the opening brief are
waived[.]”).
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