United States v. Anderson

Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 14, 2023

FOR THE TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 21-2151
v.

STEVEN ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:20-CR-00897-KWR-1)
_________________________________

Martín Juárez, Assistant Federal Public Defender, Office of the Federal Public Defender,
Albuquerque, New Mexico, for Defendant-Appellant.

Fred J. Federici, Assistant United States Attorney (Alexander M.M. Uballez, United
States Attorney, with him on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________

Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.
_________________________________

SEYMOUR, Circuit Judge.
_________________________________

In December of 2019, Mr. Steven Anderson was stopped by police after a woman

complained he was harassing her and an officer observed him walking in the street in

violation of a city ordinance. Mr. Anderson provided the officers with false identifying
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information and was arrested for concealing his identity. During a search incident to

arrest, law enforcement found a firearm and a crystal-like substance determined to be

methamphetamine on his person. Following a failed motion to suppress, Mr. Anderson

pled guilty to being a felon in possession. At sentencing, the district court applied a four-

level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in

connection with another felony offense and sentenced Mr. Anderson to fifty-one months

in prison.

On appeal, Mr. Anderson challenges the denial of his motion to suppress, arguing

that law enforcement lacked reasonable suspicion to stop him and that the firearm was

discovered in violation of his Fourth Amendment rights. He also argues the district court

erroneously applied § 2K2.1(b)(6)(B), primarily because it relied on an uncorroborated

police report not admitted into evidence. We hold that law enforcement had reasonable

suspicion to stop Mr. Anderson and that he failed to show a Fourth Amendment violation

was the but-for cause of the discovery of the firearm. We also hold that the district court

did not err in applying the § 2K2.1(b)(6)(B) enhancement. Accordingly, we affirm Mr.

Anderson’s conviction and sentence.

Background

On December 17, 2019, Sergeant Ignas Danius was patrolling a high crime area in

Albuquerque, New Mexico and was flagged down by a woman pointing toward Mr.

Anderson. The woman told Sgt. Danius that Mr. Anderson was harassing her. Rec.,

vol. I at 135. Sgt. Danius began to follow Mr. Anderson, whom he observed walking in

the street.

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Sgt. Danius called for backup and approached Mr. Anderson once other officers

arrived. Sgt. Danius asked Mr. Anderson whether he had identification, to which Mr.

Anderson said no. Id. at 137. Sgt. Danius then asked Mr. Anderson if he had any

weapons on him. Id. Mr. Anderson initially did not respond but upon further questioning

stated he did not have any weapons. Id. In part because Mr. Anderson appeared

particularly nervous, raised his hands, and was wearing a bulky jacket, Sgt. Danius

decided to conduct a pat-down for weapons. Mr. Anderson was noncompliant and was

therefore handcuffed. Sgt. Danius was eventually able to conduct the pat-down but found

no weapons.

In response to further questioning, Mr. Anderson repeatedly provided Sgt. Danius

with false identifying information, including a false name and a social security number

belonging to another person. Id. at 138. Sgt. Danius arrested Mr. Anderson for

concealing his identity. Law enforcement later ran Mr. Anderson’s fingerprints,

determined his actual identity, and discovered he had two outstanding felony arrest

warrants. Rec., vol. II at 66.

During a search incident to arrest, Sgt. Danius found a stolen, loaded handgun in

Mr. Anderson’s waistband and baggies filled with a crystal-like substance. Id. Sgt.

Danius later found a similar baggie in Mr. Anderson’s sock. Id. Based on Sgt. Danius’s

training and experience, he identified the substance in the baggies to be

methamphetamine. Id. This was confirmed by a field test of the substance from Mr.

Anderson’s sock, which returned positive for methamphetamine. Id. Mr. Anderson was

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charged in state court with trafficking methamphetamine, among other crimes. Those

charges were dismissed when he was indicted in this case for being a felon in possession.

Mr. Anderson filed a motion to suppress, which the district court denied. He then

entered a conditional guilty plea reserving his right to appeal the denial of his suppression

motion. At sentencing, Mr. Anderson objected to the application of a four-level guideline

enhancement under § 2K2.1(b)(6)(B) for possessing a firearm in connection with another

felony offense—to wit, trafficking methamphetamine. He argued there was insufficient

evidence to support the enhancement. The district court denied the objection and

sentenced Mr. Anderson to fifty-one months’ imprisonment.

The Motion to Suppress

In his suppression motion, Mr. Anderson argued that Sgt. Danius improperly

stopped him under Terry v. Ohio, 392 U.S. 1 (1968), because the officer lacked

reasonable suspicion that he committed a crime, particularly criminal harassment. He

argued there was no evidence of a pattern of conduct that would have caused a

reasonable person substantial emotional distress, as required by the relevant New

Mexico statute. See N.M. Stat. Ann. § 30-3A-2. The district court found that Sgt.

Danius credibly testified that the woman, who appeared frightened, concerned, and

shaken up, flagged Sgt. Danius down and pointed toward Mr. Anderson. According to

Sgt. Danius, the woman then said, “He’s harassing me. He’s not leaving me alone. He’s

asking me for my number. He’s asking to date him. If I have a boyfriend, and then he

asked me for money.” Rec., vol. I at 141. Based on this testimony, the court held Sgt.

Danius reasonably suspected Mr. Anderson of committing harassment.

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The court also found that “Sgt. Danius credibly testified he observed [Mr.

Anderson] walking in the street,” id., and held that Sgt. Danius had reasonable suspicion

to stop him for violating the city ordinance prohibiting walking “along or upon” a

roadway when a sidewalk is available, see Albuquerque Code Ordinance § 8-2-7-7(A).1

Mr. Anderson did not contend otherwise.

Mr. Anderson did argue that Sgt. Danius lacked reasonable suspicion to conduct the

pat-down frisk, but he did not specifically argue that the frisk resulted in the discovery of

his firearm. The district court found that Sgt. Danius “reasonably and credibly believed

that [Mr. Anderson] was abnormally nervous and had his hands raised.” Rec., vol. I

at 142. It also noted that Mr. Anderson fled from the scene of the alleged harassment, did

not have identification, did not answer when first asked if he was armed, repeatedly stated

he did not know why he was being stopped, and was wearing multiple layers of clothing.

The court held Sgt. Danius had reasonable suspicion to frisk Mr. Anderson for weapons.

The court further noted that no evidence was found during the pat-down, and held that the

pat-down was not the but-for cause of the discovery of the firearm. The court therefore

denied Mr. Anderson’s motion to suppress.

Standard of Review

We review the denial of a suppression motion for clear error with respect to

findings of fact and de novo with respect to the ultimate question of reasonability. United

1
Concerning this jaywalking ordinance, Mr. Anderson argued the stop constituted
selective enforcement in violation of his equal protection rights. The district court
rejected this argument, and Mr. Anderson does not renew it on appeal.

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States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir. 2008). Evidence is viewed “in

the light most favorable to the government.” Id. Suppression arguments are preserved

through “sufficiently definite, specific, detailed and nonconjectural factual allegations.”

Id. at 1227 n.2 (quoting United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir.

2004)). When a defendant fails to raise a particular suppression argument in district

court, the argument is waived absent a showing of good cause. See United States v.

Warwick, 928 F.3d 939, 944 (10th Cir. 2019); Fed. R. Crim. P. 12(c)(3). Failure to show

good cause precludes even plain error review. United States v. Bowline, 917 F.3d 1227,

1236–37 (10th Cir. 2019).

A district court’s application of the sentencing guidelines is reviewed for abuse of

discretion. United States v. Rodriguez, 945 F.3d 1245, 1248 (10th Cir. 2019). “In

applying that standard, we review questions of law de novo and factual findings for clear

error, ‘giving due deference to the district court’s application of the Guidelines to the

facts.’” Id. at 1249 (quoting United States v. Pentrack, 428 F.3d 986, 969 (10th Cir.

2005)). “In particular, we review the application of § 2K2.1(b)(6)(B) in a given case for

clear error.” United States v. Leib, 57 F.4th 1122, 1125–26 (10th Cir. 2023). We also

review “a district court’s assessment of the reliability of evidence supporting a sentencing

enhancement” for clear error. United States v. Martinez, 824 F.3d 1256, 1261 (10th Cir.

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2016). But see id. at n.6 (stating the abuse of discretion standard may be more

appropriate).2

Discussion

A. Mr. Anderson’s Suppression Arguments

On appeal, Mr. Anderson renews his arguments that Sgt. Danius lacked reasonable

suspicion both to stop him for committing harassment and to conduct a pat-down frisk.

He also raises new arguments, challenging the district court’s conclusions concerning

reasonable suspicion to stop him for violating the jaywalking ordinance and the causal

nexus between the pat-down and the firearm he sought to suppress. He does not,

however, challenge the court’s factual findings.

It is well settled that, notwithstanding the Fourth Amendment’s prohibition on

unreasonable searches and seizures, “police can stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30). This is

not “an onerous standard.” United States v. Simpson, 609 F.3d 1140, 1153 (10th Cir.

2010). Rather, “as long as [an officer] has a particularized and objective basis for

suspecting an individual may be involved in criminal activity, he may initiate an

investigatory detention even if it is more likely than not that the individual is not involved

2
The government argues that some of Mr. Anderson’s challenges to his sentence
are unpreserved and should be reviewed for plain error. We need not address this
argument because we conclude that Mr. Anderson’s challenges would fail even if they
were preserved.

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in any illegality.” United States v. Johnson, 364 F.3d 1185, 1194 (10th Cir. 2004).

Furthermore, “an officer need not rule out the possibility of innocent conduct, or even

have evidence suggesting a fair probability of criminal activity.” United States v.

Esquivel-Rios, 725 F.3d 1231, 1236 (10th Cir. 2013) (internal quotation marks and

citations omitted).

a. Reasonable Suspicion for the Stop

The district court held that Sgt. Danius reasonably suspected Mr. Anderson of

harassment and jaywalking. Because reasonable suspicion of either offense is sufficient

to justify a Terry stop, we need only determine whether Sgt. Danius reasonably suspected

that Mr. Anderson committed one of these offenses.

For the first time on appeal, Mr. Anderson asserts Sgt. Danius lacked reasonable

suspicion that he violated the jaywalking ordinance. Specifically, he argues the

ordinance does not proscribe walking on a road shoulder, where he was walking. Mr.

Anderson acknowledges that he did not make this specific argument below but argues

that the district court committed plain error.3 Mr. Anderson’s failure to raise this

argument below constitutes waiver,4 and he does not attempt to show good cause.

3
He also argues that, based on Yee v. Escondido, 503 U.S. 519, 534 (1992), he is
permitted to raise this argument on appeal because it was encompassed by his general
argument that there was no reasonable suspicion to stop him. As the government points
out, however, we have rejected this construction of Yee. See Parker Excavating, Inc. v.
Lafarge West, Inc., 863 F.3d 1213, 1223 (10th Cir. 2017).
4
The government contends this new argument is also precluded by the conditional
plea agreement, which gives Mr. Anderson the right to appeal the suppression decision
only on grounds argued in district court. We need not decide this issue because we
conclude the argument is waived.

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Nonetheless, Mr. Anderson’s argument would fail even under plain error review because

it relies on a faulty reading of the ordinance, which prohibits “walk[ing] along or upon an

adjacent roadway” if a sidewalk is provided. § 8-2-7-7(A) (emphasis added).

Because Mr. Anderson’s new argument fails, we are not required to decide

whether there was reasonable suspicion that he committed harassment in violation of the

New Mexico statute. We nonetheless conclude, on de novo review, that there was

reasonable suspicion to stop Mr. Anderson to investigate the alleged harassment. First,

the woman who flagged Sgt. Danius down specifically claimed Mr. Anderson was

harassing her. Second, the fact that she flagged Sgt. Danius down conveys she was

concerned enough to seek police assistance and perhaps had significant concerns about

her safety. Similarly, Sgt. Danius’s observation of the woman’s demeanor supports a

reasonable suspicion that Mr. Anderson’s actions were causing her emotional distress.

Finally, the statement “He’s not leaving me alone” indicates Mr. Anderson was engaging

in some sort of repetitive conduct and supports a reasonable suspicion there was the

requisite pattern of conduct. At this stage, Sgt. Danius was not required to have all the

information and evidence needed to convict Mr. Anderson of harassment. The

information available to him was sufficient to meet the low reasonable suspicion bar, and

thus the district court did not err in finding there was reasonable suspicion of

harassment.5

5
Mr. Anderson argues the district court violated Fed. R. Crim. P. 12(d) by not
explaining why it rejected his argument on this issue. To the contrary, the court
recounted many facts that “amply support a reasonable suspicion of harassment.” Rec.,
vol. I at 141.

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Therefore, Sgt. Danius did not violate Mr. Anderson’s Fourth Amendment rights

by initiating a Terry stop.

b. The Pat-Down Frisk

During an investigative stop, an officer may conduct a limited search for weapons

if “a reasonably prudent man in the circumstances would be warranted in the belief that

his safety or that of others was in danger.” Terry, 392 U.S. at 27. The parties dispute

whether Sgt. Danius had the reasonable suspicion necessary to conduct the pat-down

frisk of Mr. Anderson. We need not decide this issue because Mr. Anderson has failed to

show there was a causal nexus between the pat-down and the discovery of the firearm.

See United States v. Goebel, 959 F.3d 1259, 1268 (10th Cir. 2020); United States v.

Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) (defendant bears the burden of

showing a nexus between the alleged violation and the challenged evidence).

Mr. Anderson argues that the pat-down prolonged the stop and led to the discovery

of the firearm. An unreasonably prolonged detention is unconstitutional. United States v.

Samilton, 56 F.4th 820, 827 (10th Cir. 2022). However, even if a defendant shows that a

detention was impermissibly prolonged, evidence will only be suppressed if he can

“establish a causal link between the violation and the discovery of the contested

evidence.” Goebel, 959 F.3d at 1268. “Evidence will not be suppressed as fruit of the

poisonous tree unless an unlawful search is at least the but-for cause of its discovery.”

United States v. Chavira, 467 F.3d 1286, 1291 (10th Cir. 2006) (emphasis in original).

We agree with the district court and the government that Mr. Anderson failed to

show a causal nexus between the pat-down and the discovery of the firearm. Critically,

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no evidence was found during the pat-down. The firearm was instead found in a search

incident to Mr. Anderson’s arrest for concealing his identity.

It is undeniable that the frisk prolonged the stop. But Mr. Anderson would have

been arrested and the gun would have been discovered regardless of the pat-down. Sgt.

Danius asked Mr. Anderson if he had identification before initiating the pat-down. In

fact, body camera footage shows Sgt. Danius asked this question within about thirty

seconds of getting out of his vehicle and approaching Mr. Anderson. It thus appears Sgt.

Danius was interested in ascertaining Mr. Anderson’s identity from the inception of the

stop.

Moreover, there is no evidence to suggest that Sgt. Danius’s reasons for

continuing to inquire into Mr. Anderson’s identity were derived from the pat-down. It is

well-established “that questions concerning a suspect’s identity are a routine and

accepted part of many Terry stops.” Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt Cty., 542 U.S. 177, 186 (2004). This questioning allows law enforcement to

determine whether the suspect has any outstanding warrants or a history of violence or

mental illness and helps officers assess personal and public safety. Id. Indeed, Sgt.

Danius testified at the suppression hearing that identifying involved parties is “police

work 101.” Rec., vol. IV at 41. Sgt. Danius was also entitled to request Mr. Anderson’s

identification to cite him for violating the jaywalking ordinance.

Notably, Mr. Anderson does not argue that anything about the pat-down led him to

repeatedly lie about his identity. He was a felon in possession of a loaded firearm with

outstanding arrest warrants. Being truthful about his identity was certain to lead to an

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arrest and further charges, and his incentives to conceal his identity were not altered by

any extension of the stop required to conduct the frisk.

For these reasons, we are not persuaded that the pat-down was the but-for cause of

the discovery of the firearm.

B. Sentencing Enhancement

At sentencing, Mr. Anderson objected to the application of the § 2K2.1(b)(6)(B)

enhancement for possessing a firearm in connection with another felony. He argued there

was insufficient evidence to find that he possessed methamphetamine.6 The district court

denied Mr. Anderson’s objection, holding that the government met its burden in proving

the enhancement applied by a preponderance of the evidence. In doing so, it cited the

attachments to the government’s sentencing memorandum including the criminal

complaint, a police report authored by Sgt. Danius, and the related state indictment. Id.

at 116. Of importance to the court, the police report stated that the substance found in

Mr. Anderson’s sock tested positive for methamphetamine and that Sgt. Danius observed

evidence consistent with narcotics trafficking. Id. The court also highlighted that Mr.

Anderson had been charged with drug trafficking in state court in connection with the

instant arrest. Id.

6
Mr. Anderson also argued the government violated Fed. R. Crim. P. 16 and the
district court’s discovery order by failing to produce additional evidence of
methamphetamine possession. The district court denied Mr. Anderson’s oral motion
because he did not file a written motion even though Probation had made clear in the PSR
disclosed months prior that it was recommending the enhancement.

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On appeal, Mr. Anderson challenges the enhancement on multiple grounds. He

begins by arguing that the government provided inaccurate information to the district

court because the prosecutor erroneously stated at sentencing that testimony about

methamphetamine was given at the preliminary and suppression hearings. But Mr.

Anderson did not object to the misstatement and there is no evidence that it was material

to the district court, which did not mention any such testimony when denying the

objection or otherwise.

He similarly contends the district court erred in recounting the information in the

police report. The court said Sgt. Danius stated in the report that “possession of multiple

packaging materials (clear plastic baggies) and containers (black box) as well as

individually packaged narcotics was consistent with narcotics sales and trafficking.” Id.

The court continued: “In addition, Mr. Anderson . . . was in possession of drug

paraphernalia, as indicated in the report.” Id. (emphasis added). Mr. Anderson argues

that the police report does not mention paraphernalia other than the clear plastic baggies

and black box. However, the government aptly points out that the police report identifies

“another small clear container” as “drug paraphernalia.” Rec., vol. II at 66. Furthermore,

a reading of the sentencing transcript alongside the police report makes clear that the

court was referencing two separate statements in the police report: one describing Mr.

Anderson’s possession of drug paraphernalia and one drawing the conclusion that the

paraphernalia was consistent with drug trafficking. There is no indication that the district

court was relying on evidence that did not exist or was not presented.

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Mr. Anderson next argues it was improper for the district court to rely on the state

charge because it was dismissed. But Mr. Anderson is not entitled to a favorable

inference from this dismissal. See United States v. Farnsworth, 92 F.3d 1001, 1005 n.2,

1010 (10th Cir. 1996) (referencing dismissed state charges in upholding the district

court’s application of § 2K2.1(b)(6)(B)7); Gambino-Zavala, 539 F.3d at 1230 n.3

(sentence can be enhanced on the basis of uncharged or acquitted conduct); United States

v. Ruby, 706 F.3d 1221, 1230 (10th Cir. 2013) (acquittal in state court under the beyond a

reasonable doubt standard bears little weight on whether the preponderance standard can

be met at federal sentencing). In fact, the PSR states the charges were dropped due to the

instant federal case.

Most notably, Mr. Anderson argues for the first time that it was improper for the

court to rely on a police report not admitted into evidence without specifically

determining that it was reliable. In doing so, Mr. Anderson relies on our unpublished

decision in United States v. Padilla, 793 F. App’x 749 (10th Cir. 2019). There, the

defendant’s offense level was increased based on information in a police report that was

not admitted into evidence or supported by corroborating evidence. Id. at 762. We held

the district court was required to “make an on-the-record, individualized reliability

assessment” before relying on the report. Id. However, we explained that a sentencing

court can rely on information in an unadmitted police report if the record contains

7
Section 2K2.1(b)(6)(B) was previously numbered 2K2.1(b)(5).

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corroborative evidence and the relevant information is summarized somewhere in the

record (e.g., the PSR). Id. at 758 n.5.

Although Padilla is non-binding, it is also easily distinguishable from the instant

case in two material ways. First, the police report in Padilla was not part of the record at

all and had not been disclosed in discovery. Id. at 752. Here, the police report and the

criminal complaint were exhibits to both the government’s opposition to the motion to

suppress and its sentencing memorandum. The government also submitted the state

indictment charging Mr. Anderson with trafficking methamphetamine as an exhibit to its

sentencing memorandum. Although none of these documents were admitted into

evidence at a hearing, they were part of the record and Mr. Anderson had the opportunity

to test the reliability of the police report at the suppression hearing by cross examining

Sgt. Danius.

Second, the police report here is strongly corroborated by Sgt. Danius’ body

camera footage, which was admitted into evidence at the suppression hearing. The video

depicts officers recovering a substance stored in the manner described in the report.

Consistent with the report, Mr. Anderson is recorded in the video claiming the alleged

drugs were fake. The video also includes audio of Mr. Anderson admitting the substance

from his sock “may be real,” which supports application of the enhancement. The

veracity of the police report is further supported by the district court’s repeated finding

that Sgt. Danius was a credible witness. Although police reports are not inherently

reliable, see Ruby, 706 F.3d at 1230, the police report here has significant indica of

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reliability and allowed the district court to properly determine, by a preponderance of the

evidence, that Mr. Anderson was engaged in drug trafficking.

Importantly, Mr. Anderson did not challenge the reliability of the police report in

district court. Rather, he argued instead that the government’s exhibits were not

evidence, did not provide enough information, were not subject to cross examination, and

omitted evidence favorable to Mr. Anderson.

We recently held in United States v. McDonald, 43 F.4th 1090, 1096 (10th Cir.

2022), that Padilla was “incorrect” in concluding that our prior caselaw determined the

issue of “whether a mere objection to the reliability of the evidence in the PSR is

sufficient to trigger a district court’s fact-finding obligation.” In McDonald, the

defendant made several objections to facts in the PSR, arguing “that the source of the

information was not credible or reliable.” Id. We clarified that “[a]ttacking a witness’s

credibility or reliability is different than asserting that their statements or information are

false.” Id. at 1097. Thus, to trigger a district court’s fact-finding obligation, a defendant

must affirmatively “make a showing that the information in the [PSR] was unreliable and

articulate the reasons why the facts contained therein were untrue or inaccurate.” Id.

at 1096 (quoting United States v. Chee, 514 F.3d 1106, 1115 (10th Cir. 2008)) (emphasis

and alteration in original). “In other words, the defendant must assert that the facts

alleged . . . are false.” Id. at n.3.

Although Mr. Anderson objected to the claim that he possessed

methamphetamine, he did not contend in district court that specific statements in the

police report were false and does not do so on appeal. For example, he does not argue

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that he did not possess a crystal-like substance which appeared to Sgt. Danius to be

methamphetamine, nor that the substance was not stored in the manner described in the

report or did not test presumptively positive for methamphetamine in a field test. Instead,

Mr. Anderson now argues the police report was insufficient to support the enhancement

because it was not admitted into evidence, was not corroborated by other evidence, and

was not determined to be reliable. We disagree. The police report was twice included in

the record, corroborated by the body camera footage and the state indictment, and

authored by a witness deemed credible by the district court. This was sufficient for the

court to rely upon it in applying § 2K2.1(b)(6)(B).

C. Brady Claim

On appeal, Mr. Anderson also asserts the government failed to disclose evidence

of methamphetamine possession in violation of Brady v. Maryland, 373 U.S. 83 (1963).

In particular, he points out that the government did not disclose photographs of the drugs,

additional test results, or information about the field test used. He argues this failure to

disclose prevented him from challenging the evidence used to enhance his sentence.

To establish a Brady violation, a defendant must show the government suppressed

material evidence that was favorable to him. United States v. Acosta-Gallardo, 656 F.3d

1109, 1117 (10th Cir. 2011). Mere speculation about whether evidence would have been

favorable to the defendant is insufficient to support a Brady claim. See id. Particularly

because Mr. Anderson was indicted in state court for trafficking methamphetamine, it is

likely some of the evidence he requested exists. We need not speculate, however,

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because Mr. Anderson has not shown any such evidence would be favorable to him. His

Brady claim therefore fails.

Conclusion

We are not persuaded that the firearm was discovered in violation of Mr.

Anderson’s Fourth Amendment rights or that the district court miscalculated the

applicable sentencing guidelines. Accordingly, we affirm the denial of his motion to

suppress, as well as his sentencing enhancement.

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