Appellate Case: 21-2072 Document: 010110769745 Date Filed: 11/16/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 16, 2022
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Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2072
(D.C. No. 1:20-CR-01220-KWR-1)
ERICH DEOLAX RIKER, (D.N.M.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
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Defendant pleaded guilty to one count of failing to register as a sex offender.
Finding by a preponderance of the evidence that Defendant committed a sex offense
against a minor while in failure-to-register status, the district court increased Defendant’s
sentencing-guidelines base offense level by eight points and sentenced Defendant to
eighty-seven months’ imprisonment. Defendant argues that the district court’s factual
finding violated the Fifth and Sixth Amendments to the United States Constitution. But
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-2072 Document: 010110769745 Date Filed: 11/16/2022 Page: 2
as Defendant concedes, our precedent forecloses this argument. Thus, we exercise
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.
I.
Defendant has three prior convictions for criminal sexual misconduct against
minors, and the Sex Offender Registration and Notification Act requires him to register
as a sex offender for life. 34 U.S.C. § 20913. After receiving a conviction for failure
to register as a sex offender in Oregon, Defendant moved to New Mexico and again
failed to register. Rather than register, he told his girlfriend he was “on the run” and
went by a different name. With his identity as a sex offender concealed, he babysat
an eight-year-old girl, who later accused him of sexually abusing her after showing
her pornographic videos. The State of New Mexico criminally charged Defendant
but has yet to try him for this alleged conduct.
The United States charged Defendant with failure to register as a sex offender,
and Defendant pleaded guilty. At sentencing, the district court considered evidence
of the alleged sexual offense against a minor underlying Defendant’s pending state
charges. Finding by a preponderance of the evidence that Defendant committed the
offense, the court applied United States Sentencing Guideline § 2A3.5(b)(1)(C),
which provides for an eight-level increase to a defendant’s base offense level when
the defendant committed a sex offense against a minor while in failure-to-register
status. As a result, Defendant’s offense level was 21, which combined with a
category V criminal history provided a guideline imprisonment range of seventy to
eighty-seven months’ imprisonment.
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Defendant objected to the district court’s application of U.S.S.G.
§ 2A3.5(b)(1)(C), arguing that it amounted to impermissible judicial fact-finding in
violation of the Fifth and Sixth Amendments. The district court overruled the
objection and sentenced Defendant to eighty-seven months’ imprisonment.
Defendant appeals.
II.
We review constitutional challenges to the sentencing guidelines de novo.
United States v. McKneely, 69 F.3d 1067, 1078 (10th Cir. 1995). When a court
sentences within a properly calculated guidelines range, we presume the sentence is
reasonable. See United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013).
Sometimes the guidelines call for sentence enhancements based on facts a jury did
not find and the defendant did not admit. See United States v. Magallanez, 408 F.3d
672, 684–85 (10th Cir. 2005). A sentencing court applies a preponderance-of-the-
evidence standard when evaluating such facts to determine whether a sentence
enhancement applies. See id. A court may even consider conduct underlying an
acquitted charge so long as the government proves the conduct by the preponderance
of the evidence. Id. No heightened standard of proof exists at sentencing for
contested facts. See United States v. Robertson, 946 F.3d 1168, 1171 (10th Cir.
2020).
III.
Defendant asserts that the district court violated the Fifth and Sixth
Amendments by applying U.S.S.G. § 2A3.5(b)(1)(C) based on the court’s
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preponderance-of-the-evidence finding that Defendant committed a sex offense
against a minor although the government has yet to try him. Defendant relies on
views expressed by individual Supreme Court justices in separate opinions to support
the argument that when a sentence is substantively reasonable only because of a
specific factual finding, a jury must find that fact beyond a reasonable doubt. See
Jones v. United States, 574 U.S. 948, 948 (2014) (Scalia, J., dissenting); see also Rita
v. United States, 551 U.S. 338, 372 (2007) (Scalia, J., concurring); see also United
States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring). In
other words, Defendant argues that without the district court’s finding that he
committed a sexual offense against a minor while in failure-to-register status, his
eighty-seven-month sentence would be substantively unreasonable. Thus, Defendant
argues that the Fifth and Sixth Amendments require that the government prove that
conduct to a jury beyond a reasonable doubt before a sentencing court can consider
it.
As Defendant concedes, our precedent forecloses his argument. We have held
that the Constitution does not prohibit a district court from applying the sentencing
guidelines based on facts the court finds by a preponderance of the evidence—even if
the sentence would be substantively unreasonable without the finding. See United
States v. Stein, 985 F.3d 1254, 1266 (10th Cir.); See also Magallanez, 408 F.3d at 684–
85. The sentencing court properly applied a preponderance-of-the-evidence standard
when evaluating the evidence of Defendant’s alleged sex offense against a minor.
Section 2A3.5(b)(1)(C) advises courts to add eight points to a defendant’s base
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offense level when they find that a defendant sex offender “committed” a sex offense
against a minor while unregistered. The court found that the child’s allegations were
corroborated, reliable, and credible, meeting the preponderance of the evidence
standard, and properly applied the eight-level increase. The district court then
appropriately sentenced Defendant within the corresponding guideline range.
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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