United States v. Townley

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
January 10, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AM ERICA,
Plaintiff-Appellee, No. 05-8066
v.
RODNEY JOE TOW NLEY,
Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D.C. No. 04-CR-212-01-J)

Ronald G. Pretty, Cheyenne, W yoming, for D efendant-Appellant.

Kenneth R. M arken, Special Assistant United States Attorney, (M atthew H. M ead,
United States Attorney, and David A. Kubichek, Assistant United States Attorney,
with him on the brief) District of W yoming, Casper, W yoming, for Plaintiff-
Appellee.

Before KELLY, M cKA Y, and O’BRIEN, Circuit Judges.

M cK A Y, Circuit Judge.

Appellant Rodney Joe Townley appeals his conviction for conspiracy to

possess with intent to distribute more than 500 grams of methamphetamine, 21

U.S.C. §§ 841(a)(1), 841 (b)(1)(A )(viii), and 846; two counts of possession with

intent to distribute less than 50 grams of methamphetamine, 21 U.S.C. §§
841(a)(1), 841(b)(1)(C); and possession with intent to distribute less than 50

grams of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). Appellant argues that:

(1) the admission of hearsay statements violated his Sixth Amendment

confrontation right under Crawford v. Washington, 541 U.S. 36 (2004); (2) the

erroneous enhancement of his sentence was unreasonable in light of Booker v.

United States, 543 U.S. 220 (2005); and (3) the calculation of his criminal history

violated Booker and Shepard v. United States, 544 U.S. 13 (2005).

I. BACKGROUND

On July 20, 2004, Appellant was arrested at the D ays Inn in Casper,

W yoming following a report by a motel employee of suspicious activity in

Appellant’s room. At the time of his arrest, Appellant was found in possession of

13.05 grams of methamphetamine, 12.59 grams of cocaine, drug distribution

materials including plastic bags and a digital scale, drug paraphernalia, a safe,

wire transfer receipts, and $4,394 in cash. Eva Carvajal, Appellant’s one-time

girlfriend, was present in the motel room, and police encountered and detained

two individuals, Robert Anthoney Ritchie and Rhonda Sprayberry, as they were

leaving Appellant’s room. Police found drugs on M r. Ritchie and drug

paraphernalia on M s. Sprayberry.

As a result of this arrest, Appellant was charged in state court with felony

possession of cocaine and methamphetamine and possession with intent to

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distribute both substances. After posting a $3,000 bond, Appellant was released.

Appellant failed to appear at a preliminary hearing, and a bench warrant was

issued for his arrest.

Following his run-in with the police outside the Days Inn motel room, M r.

Ritchie agreed to act as a confidential informant for the W yoming Division of

Criminal Investigation (“DCI”) and, in that capacity, placed two recorded

telephone calls to Appellant in an effort to locate him. Those efforts proved

successful, and DCI agents located Appellant at the Best Value Inn in Gillette,

W yoming. W hile surveilling the motel, DCI agents witnessed Appellant leave a

motel room to meet with Douglas Goodsell, an associate of Appellant, to conduct

a drug transaction. W hen agents attempted to arrest Appellant, he fled on foot but

was captured after a brief pursuit. 1 The agents then returned to the motel, where

they detained Harold Virden and M ary Virden as the two were leaving the same

motel room and heading tow ard a vehicle registered to Rick Johnson, in w hose

name the motel room also was registered. The agents found drug paraphernalia

on M r. Virden, and they discovered a scale in M rs. Virden’s handbag that

appeared to have— and was later confirmed to have— methamphetamine residue

on it.

1
M r. G oodsell fled in his vehicle when the agents gave chase to Appellant.
M r. Goodsell was later located with the help of coconspirator Rick Johnson and
was apprehended.

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 After securing a search warrant, DCI agents searched the motel room. On a

nightstand police found 29.86 grams of methamphetamine contained inside a

Budweiser stash can, 1.42 grams of methamphetamine contained in a plastic bag,

loose methamphetamine, a glass vial containing methamphetamine residue, used

plastic bags containing methamphetamine residue, a ledger, and a Social Security

card and a Sheridan Community Federal Credit Union card bearing Appellant’s

name. Two syringes, one filled with .23 grams of liquid methamphetamine and

the other empty, were found wrapped in a washcloth and tucked inside a leather

jacket pocket. DCI agents also located a small quantity of marijuana inside the

motel room refrigerator. DCI agents located Appellant’s vehicle in the motel

parking lot, and a search of that vehicle revealed a Western Union wire transfer

receipt and a piece of paper containing various phone and/or social security

numbers. Present in the motel room when the search was initiated were M r.

Johnson, Amy Engdahl, M s. Engdahl’s three children, and the Virdens’ one child.

Appellant was charged with the four-count federal indictment outlined

above. His co-defendants on the conspiracy charge included M isty Jean Kosta,

Christine Dawn Herden, M r. Goodsell, and M r. Johnson, all of whom pleaded

guilty and, with the exception of M s. Herden, appeared as witnesses for the

government against Appellant. On M arch 29, 2005, the district court conducted a

James hearing to determine the extent of these witnesses’ testimony. After

hearing testimony from DCI Agent and chief investigator Tina Trimble, the

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district court ruled from the bench that the government had established by a

preponderance of the evidence that a conspiracy existed between Appellant, the

various co-defendants, and various unindicted individuals including Tom Dishion,

Rod Townley, Jr., and M s. Carvajal.

On M arch 3, 2005, the government filed an information in accordance with

21 U.S.C. § 851 alleging that, because Appellant had previously been convicted

of a felony drug offense, he would be subject to a mandatory term of twenty

years’ imprisonment if convicted of the conspiracy count. The § 851 information

later w as dismissed when a government-subpoenaed witness failed timely to

appear during the sentencing phase.

At sentencing, Appellant objected to various inclusions in the pre-sentence

report (“PSR”). The PSR placed Appellant in Criminal History Category VI,

which the trial court lowered to Category IV of its own discretion. In addition,

the trial court declined to add the leader/organizer enhancement, although it did

adopt a two-level enhancement for use of a dangerous weapon during the

commission of a drug crime. As a result, the district court sentenced Appellant to

240 months’ imprisonment on the conspiracy charge and 120 months’

imprisonment on each of the three possession with intent to distribute charges, to

run concurrently.

II. CO NFR O NTA TION CLA USE

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 The Confrontation Clause of the Sixth Amendment guarantees a criminal

defendant “the right . . . to be confronted with the witnesses against him.” U.S.

Const. art. VI. Although a district court’s evidentiary rulings are reviewed for

abuse of discretion, whether admission of such evidence violates the

Confrontation Clause is reviewed de novo. United States v. Summers, 414 F.3d

1287, 1298 (10th Cir. 2005). That review is conducted according to the rule

promulgated by the Supreme Court in Crawford, 541 U.S. 36, and defined further

in Davis v. Washington, --- U .S. ---, 126 S. Ct. 2266 (2006).

In Crawford, the Supreme Court held that the admission at trial of

testimonial hearsay would violate the Confrontation Clause unless the declarant

testified or, where unavailable, was previously subject to cross-examination by

the defendant regarding the objectionable statements. 541 U.S. at 68. The

Supreme Court, however, opted not to provide a precise definition of

“testimonial,” id. (“W e leave for another day any effort to spell out a

comprehensive definition of ‘testimonial.’”), concluding only, “at a minimum,”

that it would comprise prior testimony and statements made during police

interrogation, id. In Davis, the Supreme Court restricted its clarification of the

definition of “testimonial” hearsay to the police interrogation context. 126 S. Ct.

at 2273. “W ithout attempting to produce an exhaustive classification of all

conceivable statements— or even all conceivable statements in response to police

interrogation— as either testimonial or nontestimonial,” the Supreme Court held

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that statements “made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to enable

police assistance to meet an ongoing emergency” are nontestimonial. Id.

Despite the expressly limited nature of the definition provided in Davis, it

nevertheless lends credence to this court’s interpretation of “testimonial” posited

in United States v. Summers, 414 F.3d 1287. See United States v. Wade, No. 05-

4160, 2006 W L 3059929, at *4 (10th Cir. Oct. 30, 2006) (unpublished) (“The

Court did not precisely define testimonial in Crawford, but it indicated in Davis

v. Washington that a statement is testimonial if ‘the circumstances objectively

indicate . . . that the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.’” (emphasis added)).

In Summers, we held that “a statement is testimonial if a reasonable person in the

position of the declarant would objectively foresee that his statement might be

used in the investigation or prosecution of a crime.” 414 F.3d at 1302. This

holding comports with those of our sister circuits, see United States v. Hinton,

423 F.3d 355, 360 (3d Cir. 2005) (“[S]tatements made under circumstances that

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial are testimonial.”); United States v. Cromer, 389

F.3d 662, 675 (6th Cir. 2004) (“The proper inquiry, then, is whether the declarant

intends to bear testimony against the accused. That intent, in turn, may be

determined by querying whether a reasonable person in the declarant’s position

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would anticipate his statement being used against the accused in investigating and

prosecuting the crime.”); United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004)

(“[T]he [Crawford] Court would use the reasonable expectation of the declarant

as the anchor of a more concrete definition of testimony.”), and refutes

Appellant’s assertion that Summers improperly “focus[es] on the subjective

motivation of the speaker as the pivotal factor in the ‘testimonial’ analysis.”

(Appellant’s Br. at 20.)

Appellant reads Crawford’s compelling account of the abuses surrounding

the right to confrontation throughout history as an argument that Crawford

demands a “‘categorical constitutional guarantee’” of live confrontation. (Id. at

15 (quoting Crawford, 541 U.S. at 67).) According to Appellant, “now that the

Supreme Court has reconnected [with] its common law origins” (id. at 13), any

reliance on the Summers test “cannot be reconciled with Crawford’s insistence on

the common law as the touchstone for determining which statement requires an

opportunity for confrontation” (id. at 20). Consequently, Appellant argues for an

extreme interpretation of Crawford that would replace the test established by

Summers— and our sister circuits— in favor “of asking whether confrontation

would have been required at common law as it existed in 1791.” (Id. at 20.) W e

refuse Appellant’s confused suggestion.

Nor did Crawford overrule Bourjaily v. United States, 483 U.S. 171 (1987),

as Appellant suggests. Bourjaily held that a court need not independently inquire

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into the reliability of statements of coconspirators where Federal Rule of

Evidence 801(d)(2)(E) is at play. Id. at 183-84. This holding is entirely

consistent with Crawford. Indeed, the Supreme Court made clear that

Crawford abrogated only Ohio v. Roberts, 448 U.S. 56 (1980), by “restoring the

unavailability and cross-examination requirements,” Davis, 126 S. Ct. at 2275

n.4, leaving longstanding interpretation of the Federal Rules of Evidence

untouched. W e find no merit to Appellant’s unfounded and unsupported

contention that Crawford’s instruction on testimonial hearsay somehow

eviscerated Federal Rule of Evidence 801(d)(2)(E), especially since Rule

801(d)(2)(E) treats declarations by coconspirators not as an exception to the

hearsay rules, but as nonhearsay.

Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if . . . [t]he

statement is offered against a party and is . . . a statement by a coconspirator of a

party during the course and in furtherance of the conspiracy.” 2 Statements by a

conspirator are in furtherance of the conspiracy when they are “intended to

promote the conspiratorial objectives.” United States v. Reyes, 798 F.2d 380, 384

(10th Cir. 1986) (quotation omitted). Such promotion occurs through “statements

that explain events of importance to the conspiracy in order to facilitate its

2
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Fed. R. Evid. 801(c).

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operation,” United States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987),

“‘[s]tatements between coconspirators w hich provide reassurance, which serve to

maintain trust and cohesiveness among them, or which inform each other of the

current status of the conspiracy,’” id. (alteration in original) (quoting United

States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987), and “‘[s]tatements of a

coconspirator identifying a fellow coconspirator’” id. (alteration in original)

(quoting United States v. Handy, 668 F.2d 407, 408 (8th Cir. 1982)). Of course,

“direct testimony of a conspirator . . . describing his participation in the

conspiracy and the actions of others is not hearsay.” United States v. M obile

M aterials, Inc., 881 F.2d 866, 871 (10th Cir. 1989).

Under Tenth Circuit law, a district court can only admit coconspirator

statements if it holds a James hearing or conditions admission on forthcoming

proof of a “predicate conspiracy through trial testimony or other evidence.”

United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). W e have repeatedly

mentioned, however, “our strong preference for James proceedings.” United

States v. Gonzalez-M ontoya, 161 F.3d 643, 648 (10th Cir. 1998); United States v.

Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996); Owens, 70 F.3d at 1123.

Here, the district court conducted a Jam es hearing and determined by a

preponderance of the evidence that (1) a conspiracy to sell methamphetamine

existed; (2) numerous codefendants, unindicted coconspirators, and Appellant

were members of that conspiracy; and (3) the anticipated testimony of these

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coconspirators at Appellant’s trial concerned statements made in furtherance of

the conspiracy. (Tr. vol. 2 at 32-33); see Owens, 70 F.3d at 1123; see also United

States v. James, 590 F.2d 575, 582 (5th Cir. 1979). W e note that Appellant makes

no objection to the district court’s findings at the Jam es hearing.

Appellant does, however, cite a host of testimony that he contends violated

the Confrontation Clause, including:

• two tape-recorded telephone conversations between M r. Ritchie and
Appellant in which the pair discussed drug sales and Appellant’s having
threatened M r. Dishion at knifepoint;

• a tape-recorded telephone conversation betw een M r. Johnson, a
coconspirator then cooperating with police, and M r. Goodsell where the
men discussed the intended meeting between M r. Goodsell and Appellant,
which was prevented by Appellant’s arrest;

• a tape-recorded telephone conversation between M r. Johnson and M r.
Townley, Jr. in which the men discussed Appellant’s arrest and the location
of Appellant’s wallet and vehicle;

• M r. Johnson’s testimony that M r. Dishion stated the pair had to
obtain money from M r. Goodsell, meet Appellant to acquire
methamphetamine with that money, and then deliver the methamphetamine
to M r. Goodsell;

• M r. Johnson’s testimony that M r. Dishion said Appellant had
instructed the two men to pick up prescription drugs from an
acquaintance’s apartment;

• M r. Johnson’s testimony that M r. Dishion said Appellant had
telephoned him to request that the two men wire funds to D enver;

• M r. Johnson’s testimony that M r. Dishion stated Appellant supplied
him with methamphetamine;

• M r. Ritchie’s testimony that M s. Herden stated Appellant supplied

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 her with methamphetamine;

• M r. Ritchie’s unidentified statements to unspecified persons;

• M r. Goodsell’s statement that M r. Dishion said he needed to w ire
money; and

• M s. Kosta’s statement that M r. Townley, Jr. telephoned her trying to
find Appellant because, according to M r. Townley, Jr., members of a gang
were holding a gun to his head until Appellant showed up to pay them for a
drug delivery. 3

The two, tape-recorded conversations between M r. Ritchie and Appellant

are, as the district court correctly noted during sidebar, admissible under Federal

Rule of Evidence 801(d)(2)(A). Although M r. Ritchie was not found to be a

coconspirator in this case— indeed his name w as never even mentioned at the

James hearing— Appellant’s statements in the recorded conversations are

nevertheless admissible as a party admission. See United States v. Busch, 758

F.2d 1394, 1397 (10th Cir. 1985).

The tape-recorded conversation between M r. Johnson and M r. Goodsell is

not problematic because both men testified at trial and, therefore, were available

for cross-examination regarding their statements. M r. Johnson’s tape-recorded

3
In his laundry list of Crawford violations, Appellant also includes DCI
Agent Appley’s testimony regarding statements of M r. and M rs. Virden and the
district court’s refusal to permit defense counsel to cross-examine M s. Kosta
about potential child services proceedings. The district court sustained defense
counsel’s objection to DCI Agent Appley’s testimony, and certainly no hearsay
statement can be involved w here the district court refuses to allow cross-
examination on relevancy grounds. As neither of these cited instances poses a
Crawford problem, we do not address them.

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conversation with M r. Townley, Jr. is admissible as nonhearsay under Federal

Rule of Evidence 801(d)(2)(E). The district court found M r. Tow nley, Jr. was a

coconspirator, and although these conversations took place after Appellant’s

arrest, the conversations reflect M r. Townley, Jr.’s intent to continue pursuing the

conspiracy’s objectives. W e observe that Appellant raises no argument that the

conspiracy had ended, and in fact several coconspirators remained free to

continue operations.

The remainder of the statements are admissible under Rule 801(d)(2)(E).

M r. Johnson, M r. Goodsell, and M s. Kosta were all coconspirators recounting the

statements of other coconspirators. Although M r. Ritchie was not found to be a

coconspirator, he recounted statements of coconspirators. The sole purpose of the

majority of these statements was to promote the conspiracy’s unlawful objectives

by arranging funding and transportation for the purchase and distribution of

methamphetamine as well as arranging and effecting the sale of the drugs

themselves. See Reyes, 798 F.2d at 384; see also Smith, 833 F.2d at 219. Some

of these statements simply identified other members of the conspiracy. See Smith,

833 F.2d at 219; see also United States v. Caro, 965 F.2d 1548, 1557 (10th Cir.

1992). M oreover, most of the statements were provided in the context of

describing first-hand participation in the conspiracy and the actions of the other

coconspirators. See M obile M aterials, 881 F.2d at 871.

Further, none of the objected-to evidence could be considered testimonial.

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None of it was made at a hearing or trial or as a result of police interrogation,

Crawford, 541 U .S. at 68, and no reasonable person in the position of these

declarants w ould have objectively foreseen that these statements w ould be used in

the investigation or prosecution of their conspiracy, see Sum mers, 414 F.3d at

1302.

In any case, other than Appellant’s admission threatening M r. Dishion at

knifepoint and the statements identifying Appellant as the source of the

methamphetamine, the statements were not testimonial because they were not

offered for their truth. W e have held that “[o]ne thing that is clear from Crawford

is that the [Confrontation] Clause has no role unless the challenged out-of-court

statement is offered for the truth of the matter asserted in the statement.” United

States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006) (providing detailed

analysis and collecting cases). A ppellant has not identified any of the statements

as having been offered for their truth.

For all these reasons, Appellant’s Confrontation Clause challenge fails.

III. SE NTENCE ENHANCEM ENT

Appellant argues that the district court’s two-level enhancement under

Sentencing Guideline § 2D1.1(b)(1) for possession of a dangerous weapon

violated Booker. According to Appellant, the court comm itted constitutional

error when it employed judicial fact-finding under a preponderance of the

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evidence standard to find that Appellant possessed a knife w hen he threatened M r.

Dishion’s life for failing to pay for methamphetamine. In Booker, “the Supreme

Court held that the mandatory application of the Guidelines to judge-found facts

(other than a prior conviction) violates the Sixth A mendment,” and the C ourt

therefore rendered the Guidelines advisory rather than mandatory. United States

v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). The advisory

Guidelines remain “a factor to be considered in imposing a sentence.” Id. Thus,

district courts “‘must consult those Guidelines and take them into account when

sentencing.’” Id. (quoting Booker, 543 U.S. at 264).

On appeal, while we review a defendant’s ultimate sentence for

reasonableness, we continue to review the district court’s application of the

Guidelines de novo, and we review any factual findings for clear error. Id. at

1054. W here the district court correctly applies the G uidelines and imposes a

sentence within the applicable Guidelines range, that sentence “is entitled to a

rebuttable presumption of reasonableness.” Id. However, if the district court errs

in applying the Guidelines, we must remand unless the error is harmless. Id. at

1055.

Appellant incorrectly argues that Booker error occurs any time a district

court enhances a sentence based on facts not found by a jury. Rather, after

Booker, a district court is not precluded from relying on judge-found facts in

determining the applicable Guidelines range so long as the G uidelines are

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considered as advisory rather than mandatory. United States v. M agallanez, 408

F.3d 672, 685 (10th Cir. 2005); United States v. Lawrence, 405 F.3d 888, 907

(10th Cir.), cert. denied, --- U.S. ---, 126 S. Ct. 468 (2005). W e find harmless

any error in the district court’s application of the two-level enhancement under §

2D1.1(b)(1). That provision directs that a two-level increase be imposed “[i]f a

dangerous weapon (including a firearm) w as possessed.” U.S.S.G. § 2D1.1(b)(1).

The commentary to this section indicates that this enhancement “reflects the

increased danger of violence when drug traffickers possess weapons” and that it

“should be applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3. Under

§ 2D1.1(b)(1), “the government has the burden of proving merely that a weapon

was present in some physical proximity to the offense.” United States v.

Alexander, 292 F.3d 1226, 1231 (10th Cir. 2002). “O nce the government meets

this standard, it is incumbent upon the defendant to show that it is ‘clearly

improbable’ that the weapon was connected to the offense.” United States v.

Sagaste-Cruz, 187 Fed. App’x 804, 809 (10th Cir. 2006) (unpublished) (citing

United States v. Vaziri, 164 F.3d 556, 568 (10th Cir. 1999)). The district court

relied on Appellant’s recorded admission and M r. Ritchie’s corroborating trial

testimony in finding that Appellant threatened M r. Dishion at knifepoint over M r.

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Dishion’s failure to pay for his methamphetamine. 4 W e find no error in the

district court’s factual finding that Appellant possessed a dangerous w eapon in

connection with the offense, and we conclude that the district court correctly

calculated the Guideline range.

This conclusion is strengthened by the fact that the district court assigned a

base offense level of thirty-two based on the jury’s special interrogatory finding

of drug quantity rather than adopting the PSR’s higher base offense level

determination. Additionally, the district court decided that Appellant’s criminal

history was over-represented and reduced it by two levels and further determined

that A ppellant did not qualify for a leader/organizer enhancement.

Appellant has not rebutted the presumption of reasonableness that attaches

to his correctly calculated Guidelines-range sentence. The district court spent

considerable time considering the § 3553(a) factors. The district court conducted

a careful balancing of Appellant’s crimes, past military service, unfortunate

resultant mental disability that led to his drug abuse, and current attitude in

arriving at a sentence in the middle of the Guideline-calculated range.

Consequently, we find no error in the district court’s decision to apply the

4
Given Appellant’s Confrontation Clause argument, we note that a
sentencing court “may consider hearsay evidence provided that the evidence has
sufficient indicia of reliability,” and use of such evidence, by itself, is insufficient
to render a sentencing enhancement invalid. United States v. Dazey, 403 F.3d
1147, 1177 n.7 (10th Cir. 2005).

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two-level enhancement under § 2D1.1(b)(1), and conclude that the sentence is

reasonable.

IV . C RIM IN AL H ISTO RY CA LC ULA TIO N

Appellant received twelve criminal history points for a variety of past

offenses and two criminal history points for having committed the instant offense

while under a criminal justice sentence. Appellant argues that “any criminal

history category other than I” violates Booker and Shepard v. United States, 544

U.S. 13 (2005). (Appellant’s Br. at 25.) This court recently considered and

rejected a similar argument in United States v. Zuniga-Chavez, 464 F.3d 1199

(10th Cir. 2006). In that case we observed that Shepard concerned “what

evidence could be used to show that a plea of guilty to burglary defined by a

nongeneric burglary statute ‘necessarily admitted elements of the generic

offense.’” Id. at 1204 (quoting Shepard, 544 U.S. at 26). W e went on to state

that Shepard was not controlling precedent because it “did not address what

documents can be used to prove the fact of a prior conviction, but was concerned

only with what documents can be used to prove the facts underlying a conviction

where the elements of the state crime do not precisely mirror the federal

definition.” Id.

Appellant here urges us to adopt Shepard’s reasoning and require that prior

offenses can be established only through charging documents, written plea

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agreements, transcripts of plea colloquies, and any explicit factual findings by the

trial judge to which the defendant assented. As in Zuniga-Chavez, we decline to

so interpret Shepard.

“‘W e review the district court’s factual findings . . . under the clearly

erroneous standard, and review de novo the district court’s legal interpretation of

the Sentencing Guidelines.’” Zuniga-Chavez, 464 F.3d at 1203 (alteration in

original) (quoting United States v. Hawley, 93 F.3d 682, 686-87 (10th Cir. 1996)).

“W henever a prior conviction is relevant to sentencing, the government must

establish the fact of that conviction by a preponderance of the evidence.” United

States v. Cooper, 375 F.3d 1041, 1052 (10th Cir. 2004).

Here, the district court was presented with evidence derived from the

National Crime Information Center (“NCIC”) database and confirmed by the

District of Colorado United States Probation Office. Although Appellant appears

to contend that this process lacks sufficient reliability, we approved the use of

NCIC-based information to prove prior offenses in United States v. M artinez-

Jimenez, 464 F.3d 1205, 1209-15 (10th Cir. 2006) (collecting and analyzing

cases). Because Appellant fails to present any contradictory evidence tending to

show that he w as not convicted of the crimes used to enhance his sentence, we

conclude that the government has met its burden of showing the prior convictions

by a preponderance of the evidence and find no error in the district court’s

sentencing determination.

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 V . C ON CLU SIO N

Based on our conclusions that (1) the statements of the government’s

witnesses were properly admitted and presented no Confrontation Clause concern;

(2) the two-level enhancement for possession of a dangerous weapon was

appropriate; and (3) the criminal history score was supported by the evidence and

correctly calculated, we AFFIRM Appellant’s conviction and sentence.

Accordingly, we D EN Y Appellant’s motion for leave to have supplemental

briefing.

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