United States v. Busch

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 30, 2024
• Docket: 22-2161
• Status: Unpublished

Opinion

Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 30, 2024 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2161 (D.C. No. 5:20-CR-01486-KG-2) DONALD ALFRED BUSCH, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, EBEL, and ROSSMAN, Circuit Judges. _________________________________

Donald Alfred Busch was convicted after a jury trial in the District of

New Mexico on charges of conspiracy, carjacking resulting in death, carrying

a firearm while committing a crime of violence, and being a felon in possession

of a firearm or ammunition. The district court imposed a sentence of 480

months in prison. Mr. Busch now appeals, advancing challenges to his

conviction and sentence. As we explain, many of Mr. Busch’s appellate

challenges were not preserved in the district court or properly developed 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* This order and judgment is not binding precedent, except under the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. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2

appeal, and the arguments appropriately before us are unavailing. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I1

A

On the evening of May 27, 2019, Mr. Busch and his ex-girlfriend Tristyn

Carlo were arguing over text message. Carlo had recently started dating Justin

Swenson. Mr. Busch said he would “come down” to Swenson’s house and show

her and Swenson “how dumb he could be.” RIII.874. A little after midnight,

Mr. Busch went to Swenson’s house and saw Carlo’s car parked outside. He

thought Carlo was “in there banging [Swenson].” RI.153.

Mr. Busch drove a few miles away to a property where his friend, Stetson

Barnes, lived in a trailer. There, he asked Barnes and two others—Jehra

Hedgecock and Tyson Terrell—to help him steal a dirt bike2 from Swenson.

Hedgecock drove the group to Swenson’s house in her truck. Mr. Busch,

1 We derive these facts from Volumes I and III of the record, with reference to the narrative summaries in the Opening and Answer Briefs.

2 The district court and parties use both “motorcycle” and “dirt bike”

to describe the vehicle. Because the distinction does not affect our analysis, and because Mr. Busch proposes we call it a “dirt bike,” we will use the characterization he suggests.

2 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3

Barnes, and Hedgecock each carried a handgun.3 When they arrived,

Hedgecock got out of her truck and knocked on Swenson’s front door, but no

one answered. Mr. Busch and Terrell walked to the garage and looked at

Swenson’s dirt bikes, while Barnes stood near the tailgate of the pickup truck.

Mr. Busch selected a dirt bike, brought it outside the garage, and tried to start

it.

Swenson then came to the front door with a gun in his hand. Mr. Busch,

Barnes, and Hedgecock pulled out their guns and pointed them at Swenson.

Mr. Busch shouted at Swenson to get back in the house. Swenson responded,

“Chill the fuck out,” and went back inside. Mr. Busch again tried to start the

dirt bike, but he was unsuccessful. He then pushed the dirt bike down the

driveway and off Swenson’s property. Barnes, Terrell, and Hedgecock got back

inside the truck, with Hedgecock driving, Terrell in the passenger seat, and

Barnes in the backseat.

As Hedgecock pulled away from the property, Barnes and Swenson

exchanged gunfire. In a few seconds, Barnes fired twelve shots into the house,

and Swenson fired four shots at the pickup truck. One of Barnes’s shots

ultimately penetrated the house, killing Swenson.

3 Mr. Busch disputes he carried a gun that evening. As we will soon

discuss, we conclude the evidence was sufficient to find beyond a reasonable doubt Mr. Busch possessed a firearm during the offense.

3 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4

Mr. Busch was arrested about a week later. Mr. Busch’s firearm was

never recovered. A federal grand jury indicted Mr. Busch for committing a

carjacking resulting in death under 18 U.S.C. § 2119(3); engaging in a

conspiracy to commit carjacking under 18 U.S.C. §§ 2119(3) and 371; carrying

a firearm during and in relation to a crime of violence under 18 U.S.C.

§ 924(c)(1)(A)(2); and being a felon in possession of a firearm or ammunition

under 18 U.S.C. § 922(g)(1). Barnes, Terrell, and Hedgecock were charged as

co-defendants with Mr. Busch in the same indictment.4

B

Mr. Busch and co-defendants Barnes and Terrell proceeded to jury trial.5

We briefly highlight aspects of the trial proceedings relevant to the appellate

issues and will discuss these facts in more detail in our analysis.

4 Like Mr. Busch, all three were charged with conspiracy to commit

carjacking under §§ 2119 and 371. The government also charged Barnes and Hedgecock with carjacking resulting in death under § 2119(3) and carrying a firearm during and in relation to a crime of violence under § 924(c)(1)(A)(ii). Barnes was additionally charged with causing a death by using his firearm in relation to a crime of violence, in violation of § 924(j)(1), and being a felon in possession of a firearm or ammunition, in violation of § 922(g)(1). The government charged Terrell with simple carjacking under § 2119(1).

5 Hedgecock pleaded guilty before trial and testified against Mr. Busch, Barnes, and Terrell at trial. Barnes was convicted on all counts. His direct appeal remains pending. See United States v. Barnes, No. 22-2147. As to Terrell, the district court declared a mistrial because of a hung jury. 4 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 5

At the pretrial conference, Mr. Busch’s counsel mentioned for the first

time his desire to call a toxicology expert to testify about Swenson’s alleged

methamphetamine intoxication on the night of the offense. The expert-

designation deadline had expired, but the district court agreed to “reconsider

a deadline if there’s good cause, if [Mr. Busch] [did] have an expert,” since there

was “some time before trial.” RIII.2142. Mr. Busch never proposed a toxicology

expert.

Before trial, each defendant and the government filed a set of proposed

jury instructions. The court then drafted a preliminary set of jury instructions,

including one on the elements of carjacking under § 2119(3), which said

To find a Defendant . . . guilty of this crime, you must be convinced that the United States has proved each of the following elements beyond a reasonable doubt: First, the Defendant took a Yamaha motorcycle from the presence of another person; Second, the Defendant did so by means of force and violence, or intimidation; Third, the motor vehicle had been transported, shipped, and received in interstate or foreign commerce; Fourth, the Defendant intended to cause death or serious bodily harm; and Fifth, someone died as a result of the crime.

ECF No. 280 at 10.6

6 The documents to which we refer by docket number were not included in the record on appeal. We have accessed these publicly filed documents on the district court docket and take judicial notice of them. See In re Syngenta II, 95 F.4th 1251, 1259 n.4 (10th Cir. 2024). (noting we may “take judicial notice of documents appearing on the district court’s docket and on our own docket”).

5 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 6

At the jury instruction conference, the government asked the district

court to modify the instruction by separating the first four elements (simple

carjacking) from the final element (the death-results element). The

government also proposed placing the death-results element in a separate

interrogatory. Mr. Busch’s counsel opposed the government’s proposal. “I

would object to doing that,” defense counsel said. RIII.1532. “I think it’s totally

proper the way the Court’s done it.” The district court ultimately gave a single

instruction with all five elements for carjacking resulting in death, in the form

endorsed by Mr. Busch.

Co-defendant Barnes requested a self-defense instruction on the charges

of carjacking under § 2119(3) and carrying a firearm in violation of

§ 924(c)(1)(A)(2).7 The district court ultimately concluded self-defense was

available only as to the § 924(c)(1)(A)(2) offense against Barnes—and not as to

the carjacking charge. On the record before us, Mr. Busch did not participate

in the pre-trial litigation on the self-defense instruction.

7 The issue of whether to give a self-defense instruction relating to the

carjacking and § 924(c) charges first arose when the government filed a motion in limine arguing self-defense was not available in this context. RI.288–89. Barnes opposed that motion, insisting he was entitled to argue self-defense. See RI.287–88 (describing Barnes’s arguments). Mr. Busch did not respond to the government’s motion or otherwise request such an instruction on his behalf. The district court denied the government’s motion, ruling a self-defense instruction for the charges against Barnes could be warranted “depending on the admissible evidence presented to the jury.” RI.289. 6 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 7

The jury heard testimony over the course of eight days. The government

presented evidence from fifteen witnesses, including the officers who

investigated the incident, Carlo, Hedgecock, and two firearms and ammunition

experts. Barnes testified in his defense; the other defendants did not.

When the government rested, Mr. Busch moved for a judgment of

acquittal on all charges. The court denied the motion. The jury convicted Mr.

Busch as charged in the indictment. Mr. Busch was sentenced to concurrent

prison terms of 60 months on Count 1 (conspiracy), 396 months on Count 2

(carjacking), and 120 months on Count 7 (felon in possession), and a

consecutive term of 84 months on Count 4 (using a firearm in a crime of

violence), for a total of 480 months.

This timely appeal followed.

II

Mr. Busch urges reversal of his conviction and sentence. His opening

brief raises seven issues—some of which overlap. We understand his appellate

challenges as follows.

First, Mr. Busch argues the evidence was insufficient to support a

conviction. He challenges the sufficiency of the evidence on his carjacking

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conviction under § 2119(3).8 He contends a dirt bike is not a “motor vehicle”

within the meaning of the statute. And he insists the evidence was insufficient

to show he intended to harm Swenson. He also appeals his conspiracy

conviction based on insufficient evidence of his specific intent to commit the

underlying carjacking offense and the interdependence among the

coconspirators. Mr. Busch likewise challenges his firearms-related convictions

(for being a felon in possession and using a firearm in a crime of violence),

contending the government failed to prove beyond a reasonable doubt he

carried a gun.

Second, Mr. Busch challenges aspects of the jury instructions. He

contends the jury was erroneously instructed on the carjacking offense because

the death-results element was not set out in its own interrogatory. And he

insists he was entitled to a jury instruction on self-defense to the carjacking

charge.

Third, Mr. Busch contends the district court erred by excluding his

proposed toxicology expert.

8 Because the carjacking offense was a predicate to the convictions for

conspiracy and using a firearm in a crime of violence, Mr. Busch’s sufficiency argument on this issue implicates all three convictions. 8 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 9

Finally, Mr. Busch contends his sentence is procedurally unreasonable

because the district court erroneously imposed a two-level sentencing

enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

As we explain, Mr. Busch’s appellate claims are unpreserved,

underdeveloped on appeal, or unavailing on the merits. We discuss each in turn

and affirm the district court.

III

Mr. Busch argues there was insufficient evidence to sustain a conviction

for carjacking resulting in death under 18 U.S.C. § 2119. As a general rule, we

review sufficiency-of-the-evidence challenges to criminal jury verdicts de novo.

United States v. Cornelius, 696 F.3d 1307, 1316 (10th Cir. 2012). Sufficient

evidence exists to support a conviction if, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”

Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir. 2009) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)).

Here, the statute of conviction provides criminal penalties for “[w]hoever,

with the intent to cause death or serious bodily harm, takes a motor

vehicle . . . from the person or presence of another by force and violence or by

intimidation.” 18 U.S.C. § 2119. Mr. Busch asserts § 2119 “was . . . directed at

9 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 10

cars” and not dirt bikes—the vehicle he took from Swenson. Opening Br. at 35.

He further contends the evidence was insufficient to prove either of the charges

for which the carjacking offense is a predicate, namely the conspiracy count

and the § 924(c) count. See Opening Br. at 37–38.

This challenge was forfeited, as the government persuasively argues.

Federal Rule of Criminal Procedure 29 provides “[a]fter the government

closes its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P.

29(a). Rule 29 thus allows defendants to challenge the sufficiency of the

evidence both before the case is submitted to a jury and after the jury has

returned a verdict. See id. 29(a), (c).

The Rule 29 context creates unique implications for preservation.

“When a defendant challenges in district court the sufficiency of the

evidence on specific grounds, all grounds not specified in the motion are

waived.” United States v. Maynard, 984 F.3d 948, 961 (10th Cir. 2020)

(quoting United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (internal

quotation omitted)). This principle does not require heightened “specificity

of grounds . . . in a Rule 29 motion.” United States v. Murphy, 100 F.4th

1184, 1193 (10th Cir. 2024) (internal quotation omitted). Rather, it focuses

on the appellate consequences of heightened specificity in the Rule 29

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motion: “where a Rule 29 motion is made on specific grounds, all grounds

not specified are waived.” Id.; see also 2A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 469 (4th ed. 2024) (“[I]f the

defendant has asserted specific grounds in the trial court as the basis for a

motion for acquittal, he or she cannot assert other grounds on appeal.”).

We generally consider sufficiency arguments waived “when [a

defendant] make[s] specific challenges in the district court in support of a

Rule 29 motion and then later raise[s] entirely separate claims before us.”

Murphy, 100 F.4th at 1195 (emphasis added) (discussing Maynard, 984 F.3d

at 948, which held a Rule 29 motion expressly addressing only one count

resulted in waiver of sufficiency challenges to his convictions on other

counts). But when the arguments on appeal are not about “entirely

separate” claims but are merely new arguments about the same convictions,

we view those arguments as forfeited and review for plain error. See, e.g.,

Goode, 483 F.3d at 681 (reviewing the defendant’s sufficiency challenge to

a felon-in-possession conviction for plain error because he raised a challenge

to the interstate-commerce element on appeal after challenging only the

possession element in his Rule 29 motion); see also United States v. Kimler,

335 F.3d 1132, 1141 (10th Cir. 2003) (reviewing the defendant’s sufficiency

challenge to a child pornography conviction for plain error because he raised

11 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 12

a new argument on appeal after challenging only the interstate commerce

element in his Rule 29 motion).

Mr. Busch moved for a judgment of acquittal on the carjacking count

on two grounds: (1) the vehicle was not taken from Swenson’s presence, and

(2) although Mr. Busch committed an “actual taking of the motorcycle,” the

“taking of the motor vehicle had stopped before the shooting occurred.”

RIII.1373–74. Neither ground includes the specific argument now before

us—that a dirt bike is not a “motor vehicle” within the meaning of § 2119.

The argument on appeal, however, is about the same claim as raised in the

Rule 29 motion. Under these circumstances, we may review the forfeited

issue—but only for plain error. See Goode, 483 F.3d at 681.

Mr. Busch attempts to resist the conclusion about the appropriate

standard of review. He says the argument advanced on appeal was

preserved and in support, purports to quote trial counsel as “not[ing] there

had been ‘no taking of a motor vehicle’ by Appellant.” Opening Br. at 34

(purporting to quote RIII.1372).9 The record simply does not support Mr.

Busch’s position. The transcript confirms trial counsel only argued “the

taking of the motor vehicle had stopped before the shooting occurred.”

9 The citation to page 1372 of the third volume of the record is

incorrect. The language most closely resembling the purported quotation appears on pages 1373–74. 12 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 13

RIII.1374. To the extent Mr. Busch suggests this portion of the transcript,

correctly construed, shows he affirmatively argued a dirt bike is not a motor

vehicle, we are unpersuaded.

We conclude Mr. Busch forfeited the argument that a dirt bike is not

a motor vehicle within the meaning of § 2119. Mr. Busch did not argue for

plain error in his Opening Brief. After the government pointed out this

omission, Mr. Busch, in his reply brief, sought plain-error review. We

permit “a plain error argument to be raised for the first time in a reply

brief.” United States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015);

see also Goode, 483 F.3d at 681 (holding defendant forfeited a sufficiency

argument by failing to adequately specify it in a Rule 29 motion and

reviewing for plain error); Kimler, 335 F.3d at 1141 (same). We do so here.

“Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (quoting United States v.

Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004)). “The defendant has ‘the burden

of establishing entitlement to relief for plain error.’” Greer v. United States, 593

U.S. 503, 508 (2021) (quoting United States v. Dominguez Benitez, 542 U.S. 74,

82 (2004)).

13 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 14

Mr. Busch’s appellate challenge to the district court’s interpretation of

18 U.S.C. § 2119(3) falters on the first two prongs. “[A]n error is plain if it is

‘clear or obvious under current, well-settled law,’ meaning ‘either the Supreme

Court or this court has addressed the issue.’” United States v. Flechs, 98 F.4th

1235, 1254 (10th Cir. 2024) (alteration adopted) (quoting United States v.

Brooks, 736 F.3d 921, 930 (10th Cir. 2013)). In the context of a district court’s

interpretation of a statute, an appellant “must demonstrate either that this

court or the Supreme Court has resolved these matters in his favor, or that the

language of the relevant statute[] is clearly and obviously limited to the

interpretation [he] advances.” United States v. Harbin, 56 F.4th 843, 845 (10th

Cir. 2022) (internal alterations omitted) (quoting United States v. Fagatele, 944

F.3d 1230, 1239 (10th Cir. 2019)), cert. denied, 144 S. Ct. 106 (2023).

The term “motor vehicle” is not defined in § 2119. And Mr. Busch has not

identified (nor have we found) any authority suggesting this court or the

Supreme Court has construed the term in § 2119. According to Mr. Busch,

“federal courts . . . universally hold that the term is limited to the language

contained in the Motor Vehicle Act of 1984: ‘a vehicle driven or drawn by

mechanical powers and manufactured primarily for use on public streets, roads

and highways.’” Reply Br. At 3–4. But Mr. Busch has marshalled no

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precedential authority to support this assertion.10 Nor has Mr. Busch carried

his burden to show “the language of the relevant statute[] is clearly and

obviously limited to the interpretation [he] advances.” Id. (quoting Fagatele,

944 F.3d at 1239.

When interpreting a statute, we “begin[] with its text.” See Abbott v.

Abbott, 560 U.S. 1, 10 (2010) (quoting Medellin v. Texas, 552 U.S. 491, 506

(2008)). Recall, “motor vehicle” is not defined in § 2119 or elsewhere in Chapter

103 of Title 18. We “give undefined terms their ordinary meanings, considering

both the specific context in which the word is used and the broader context of

the statute as a whole.” Hooper v. City of Tulsa, 71 F.4th 1270, 1282 (10th Cir.

2023) (quoting In re Taylor, 899 F.3d 1126, 1129 (10th Cir. 2018)). “[I]f

Congress does not define [a] statutory term, its common and ordinary usage

may be obtained by reference to a dictionary.” United States v. Barajas-Chavez,

162 F.3d 1285, 1288 (10th Cir. 1999) (citing United States v. Roberts, 88 F.3d

10 For example, Mr. Busch points us to a bankruptcy case from the

Western District of Missouri. Reply Br. at 4 (citing In re Race, 159 B.R. 857 (Bankr. W.D. Mo. 1993), rev’d sub nom. Willison v. Race, 192 B.R. 949 (W.D. Mo. 1995)). There, the bankruptcy court interpreted a Bankruptcy Code provision excepting from discharge a debt incurred for death or personal injury caused by debtor’s unlawful operation of a motor vehicle while intoxicated. See In re Race, 159 B.R. at 859. But Mr. Busch cannot—by identifying one case from a bankruptcy court in another circuit defining the term “motor vehicle” as used in another section of another legal code— “demonstrate . . . that this court or the Supreme Court has resolved” the interpretation of § 2119 “in his favor.” See Harbin, 56 F.4th at 845. 15 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 16

872, 877 (10th Cir. 1996) and using, in part, Black’s Law Dictionary to define

“furtherance”); see also In re Hamilton Creek Metro. Dist., 143 F.3d 1381, 1385

(10th Cir. 1998) (noting that “the ordinary meaning attached to the word . . .

may be found by aid of commonly accepted dictionary definitions” and using

Black’s Law Dictionary to define “due”); Marcantel v. Michael & Sonja

Saltman Fam. Tr., 993 F.3d 1212, 1223 (10th Cir. 2021) (using Black’s Law

Dictionary to define “defect”).

The government contends the ordinary meaning of “motor vehicle” is “[a]

wheeled conveyance that does not run on rails and is self-propelled, esp. one

powered by an internal-combustion engine, a battery or fuel cell, or a

combination of these.” Answer Br. at 14 (citing Motor Vehicle, Black’s Law

Dictionary (11th ed. 2019)11). This definition would include dirt bikes, since

these generally are wheeled conveyances that do not run on rails and are

powered by internal combustion engines.12 Mr. Busch urges the panel to adopt

11Mr. Busch does not challenge the government’s reliance on this dictionary to define the term.

12 Mr. Busch’s argument on this issue appears limited to challenging

whether dirt bikes generally fall within the purview of § 2119—not whether the evidence was sufficient that this particular dirt bike had the requisite features. In other words, Mr. Busch does not contend the government’s definition was not satisfied on this record. And there is no indication from the record that the dirt bike stolen from Swenson deviated in any relevant respect from the definition the government proposes. For example, though Mr. Busch may have had doubts about whether the dirt bike would run, see 16 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 17

a narrower construction of “motor vehicle” by either (1) reading the scope of

the statute as limited by its title, the “Anti Car Theft Act,” and legislative

history referring to cars and trucks; or (2) importing the definition of “motor

vehicle” from another section, 18 U.S.C. § 511.13 These arguments are

unavailing.

The title of an act “may furnish some aid in showing what was in the

mind of the legislature,” but it “cannot control [the statute’s] words.” Holy

Trinity Church v. United States, 143 U.S. 457, 462 (1892). Neither the context

in which “motor vehicle” is used in § 2119 nor the “broader context of the

statute as a whole” aligns with Mr. Busch’s reading. Hooper, 71 F.4th at 1282

(quoting In re Taylor, 899 F.3d at 1129). There is no indication in § 2119, for

example, Congress meant to import a specialized definition from another

section of another title, 49 U.S.C. § 32101. Mr. Busch has offered no authority

supporting that proposition, and we are aware of none.

RIII.1666, there was no testimony or argument suggesting the vehicle was not equipped with an internal combustion engine.

13 Section 511(c) provides that “‘motor vehicle’ has the meaning given

that term in section 32101 of title 49.” 18 U.S.C. § 511(c)(2). In turn, 49 U.S.C. § 32101 (located in Title 49, Part C, which imposes certain requirements on vehicles sold to consumers), defines “motor vehicle” as “a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.” 49 U.S.C. § 32101(7). 17 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 18

Mr. Busch relies on the House Report—describing this statute’s purpose

as “to prevent and deter auto theft”—as evidence of a legislative intent

narrowly focused on “automobile theft” rather than theft of other vehicles. See

Opening Br. at 35 (citing 1999 House Report No. 102-851, 1992 U.S.S.C.A.N.

2829, at 2829). But that stated purpose evinces no clear intent to exclude other

kinds of vehicles from the statute’s ambit. The legislative history relied on by

Mr. Busch does not suggest giving “motor vehicle” its ordinary meaning will

“produce a result demonstrably at odds with the intentions of [§ 2119’s]

drafters.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989)

(“The plain meaning of legislation should be conclusive, except in the rare cases

in which the literal application of a statute will produce a result demonstrably

at odds with the intentions of its drafters.” (quoting Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 571 (1982))).

The district court did not plainly err by refusing to construe the term

“motor vehicles” in a manner not compelled by the statutory text or applicable

caselaw. Mr. Busch has offered no contrary availing argument. Having failed

to satisfy his burden of proving plain error on the first two prongs, we need not

address whether he satisfies the remaining elements. United States v. Gantt,

679 F.3d 1240, 1246 (10th Cir. 2012) (“Because all four [plain error]

requirements must be met, the failure of any one will foreclose relief and the

others need not be addressed.”). We thus find his argument for reversal of his

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convictions for carjacking, conspiracy, and using a firearm in a crime of

violence on this ground to be unavailing.

IV

Mr. Busch next challenges the sufficiency of the evidence on the specific

intent element for carjacking. See Opening Br. at 43–44. This argument

appears to have been adequately raised during the motion for a judgment of

acquittal. See RIII.1373 (arguing the evidence did not “establish[] that they

[the codefendants] had any intent to go commit a carjacking” and that “there

was no intent to hurt Mr. Swenson”). The government does not contend

otherwise. We review de novo. Cornelius, 696 F.3d at 1316.

Section 2119 requires the taking of the motor vehicle to have been

committed with “the intent to cause death or serious bodily injury.” 18 U.S.C.

§ 2119. The requisite intent is a conditional intent—meaning the government

need not prove the defendant “actually attempted to harm or kill the driver.”

Holloway v. United States, 526 U.S. 1, 7, 11 (1999). The government could

satisfy the intent requirement of § 2119 by showing “the defendant possessed

the intent to seriously harm or kill the driver if necessary to steal the [vehicle].”

Id.; see also United States v. Malone, 222 F.3d 1286, 1291 (10th Cir. 2000)

(analyzing a sufficiency challenge on the intent element of § 2119 under

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Holloway by asking “whether the words and actions of the defendants

sufficiently demonstrate a conditional intent to cause serious bodily harm”).

The mens rea element of § 2119 refers to the defendant’s state of mind

“at the moment the defendant demanded or took control over” the motor

vehicle. See Holloway, 526 U.S. at 8. The totality of the circumstances during

the same “episode” may be probative of the defendant’s intent. See Malone, 222

F.3d at 1291 (clarifying “it is necessary to look at the totality of the

circumstances” to discern whether a defendant had the conditional intent to

cause serious bodily harm); United States v. Pena, 550 F. App’x 563, 565–66

(10th Cir. 2013)14 (interpreting Malone to permit consideration of any facts

from the same “episode” as “sufficiently contemporaneous” to be probative). For

example, Malone held a jury could reasonably infer the defendant’s actions

before the car was taken —“tying up [the car owner’s] family, holding a gun to

her head, and shoving her to the ground several times”—sufficiently

established the requisite conditional intent for carjacking, even though at the

precise moment of the taking the defendants made no threats. 222 F.3d at

1292.

We have said brandishing or otherwise using a gun to take a motor

vehicle may support an inference of conditional intent. See United States v.

14 This unpublished authority is not binding on the panel, but we find

it persuasive. See 10th Cir. R. 32.1. 20 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 21

Vallejos, 421 F.3d 1119, 1124 (10th Cir. 2005) (describing with approval other

courts’ rulings that “when a carjacker brandishes a firearm and orders a driver

out of his car, it is reasonable for the driver, and for the jury, to infer that the

carjacker is willing to use that firearm if the driver refuses to give up the car”).

But intimidation alone is not enough.15 See Malone, 222 F.3d at 1291–92

(relying in part on a defendant forcing the car owner “at gunpoint, out [of her

house] to her car” in finding sufficient evidence of conditional intent). We have

also considered “whether there was physical violence or touching and/or direct

or implied verbal threats to kill or harm” as relevant to the inquiry into

conditional intent. United States v. Folse, 854 F. App’x 276, 289 (10th Cir.

2021) (citing Malone, 222 F.3d at 1291–92).16

Mr. Busch urges reversal, arguing the evidence of conditional intent was

not sufficient beyond a reasonable doubt. According to Mr. Busch, each

15 The intent element for carjacking is distinct from the intimidation

element, though evidence of intimidation might be relevant to proving intent. Threats of force or actual use of force tend to show conditional intent to kill or seriously harm. But an “empty threat” or mere “intimidating bluff” standing alone is not sufficient to establish that intent. Malone, 222 F.3d at 1291. For example, “if a defendant ordered a carjacking victim to do as he was told or he would be shot, while carrying an unloaded weapon, the intimidation element [for carjacking] would be satisfied although the intent element might not.” Id.

16 Folse, though not precedential, persuasively shows how we have applied Malone in analogous circumstances. See 10th Cir. R. 32.1. 21 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 22

defendant (including Mr. Busch) “responded to [Swenson’s] conduct in a

measured way that did not indicate an intent to kill or cause [Swenson] serious

bodily injury.” Opening Br. at 43–44. Mr. Busch maintains the evidence

showed only that he, Hedgecock, and Barnes “acted in a way designed to

deescalate” the situation created by Swenson’s “drug-addled, paranoid

impulses brought on by his methamphetamine addiction”; none made verbal

threats “to attack or shoot” Swenson; and “certainly [Swenson] was never

physically touched.” Opening Br. at 44. Mr. Busch also argues the

co-defendants were not “brandish[ing]” their weapons, cf. Vallejos, 421 F.3d at

1124, because they did not “shake or wa[ve] a weapon menacingly.” Opening

Br. at 44.

We discern no reversible error. On de novo review, the record amply

supports the jury’s finding that Mr. Busch possessed the requisite conditional

intent required by § 2119. The evidence showed Mr. Busch harbored animosity

toward Swenson, recruited others to show up armed to Swenson’s home at

night to take a dirt bike, drew and pointed a gun at Swenson when he emerged

from the home, and ordered him to go back inside. For example, the jury heard

evidence from which it could reasonably conclude

 Mr. Busch had a motive to harm Swenson (Swenson was dating Carlo, Mr. Busch’s ex-girlfriend), RI.150–54; RIII.871–73;

22 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 23

 Mr. Busch openly expressed hostility to Swenson and agreed with the others to “fuck him up” and “jack him up in front of his new lady” if he came outside, RI.146, 155;17

 Mr. Busch and his friends arrived at Swenson’s house armed, in the middle of the night, RI.130–32; RIII.1366–68;18

 Mr. Busch, Barnes, and Hedgecock all drew their weapons and pointed them at Swenson when he came outside, RIII.1237–38; and

 Mr. Busch yelled an order at Swenson—“get back in the house, pussy”—while pointing a gun at him, RIII.1238.

We have found sufficient evidence of conditional intent in similar

circumstances, particularly when the defendant uses an imminent threat of

force in a carjacking. See, e.g., United States v. Hernandez, No. 22-2083, 2023

WL 4073726, at *1, *5 (10th Cir. June 20, 2023) (pressing gun into owner’s

back while he drove was sufficient to establish conditional intent). And we have

acknowledged, evidence of an implied threat to harm the victim in the event of

non-compliance with the defendant’s demands supports a finding of conditional

intent. See Malone, 222 F.3d at 1291–92.19

17 The government seems to suggest Mr. Busch said these words, but

Mr. Busch correctly points out law enforcement actually made these statements. See Reply Br. at 11–12 (discussing the words “jack,” “punk” and “fuck him up”). A full review of the record confirms Mr. Busch and Hedgecock expressly affirmed these sentiments during the interview. See RI.146, RI.155, RIII.1304–05.

18We soon reject Mr. Busch’s challenge to the sufficiency of the evidence showing he carried a firearm that night.

19 The government urges affirmance, relying on Vallejos for the proposition that “[t]he use of a firearm in a carjacking sufficiently establishes 23 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 24

Accordingly, we conclude the evidence was sufficient on the intent

element of § 2119.

V

Mr. Busch next contends the evidence was insufficient to convict him

of conspiracy to commit carjacking resulting in death. We review de novo to

determine whether the record, viewed in the light most favorable to the

verdict, would permit any rational trier of fact to have convicted on the

conspiracy count. See Workman, 577 F.3d at 1183.20

the conditional intent required by § 2119.” Answer Br. at 18 (citing 421 F.3d at 1123–24). The government points to language in Vallejos stating “the presence of a gun establishes that the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car.” 421 F.3d at 1124 (quoting Holloway, 526 U.S. at 3). Importantly, the few cases invoking this language from Vallejos have affirmed findings of conditional intent based on more than the presence of a gun. See Pena, 550 F. App’x at 566 (sufficient evidence of conditional intent based on “[t]he presence of the loaded guns, Pena’s threat to shoot Arthur, and his other aggressive behavior”); Hernandez, 2023 WL 4073726, at *5 (sufficient evidence of conditional intent based on “[t]he open presence of Mr. Hernandez’s gun throughout this episode, and the evidence that Mr. Hernandez pointed the gun at Mr. Jackson’s back while he drove”); see also Malone, 222 F.3d at 1291 (sufficient evidence of conditional intent to harm the victim based on the facts that defendants tied up her family, held a gun to her head, and pushed her to the ground several times). To affirm, we need not endorse the government’s broad framing of Vallejos—that the use of a firearm, without more, would conclusively establish the conditional intent element.

20Mr. Busch raised the issue at least in part in the motion for a judgment of acquittal. See RIII.1373 (arguing for a judgment of acquittal on the conspiracy count based on insufficient evidence of specific intent to commit the underlying offense—carjacking). And the government does not contest preservation. Because we readily conclude the evidence is sufficient 24 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 25

Under the general conspiracy statute, 18 U.S.C. § 371, “the

government must prove the following elements beyond a reasonable doubt:

(1) an agreement with another person to violate the law, (2) knowledge of

the essential objectives of the conspiracy, (3) knowing and voluntary

involvement, and (4) interdependence among the alleged conspirators.”

United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009) (quoting

United States v. Rogers, 556 F.3d 1130, 1138 (10th Cir. 2009)). Mr. Busch

focuses his sufficiency challenge on two elements: specific intent to commit

the predicate offense and interdependence. We consider each argument.

Mr. Busch insists the government’s evidence on specific intent was

lacking. He claims it showed only he and his coconspirators set out to “jack”

a dirt bike and “talk shit” to Mr. Swenson, which does not establish the

“level of commitment necessary to achieve such horrid consequences” (here,

the death of Swenson). Opening Br. at 49. The record proves otherwise.

“[A] conviction for conspiracy requires the defendant to possess at

least the degree of criminal intent necessary for the substantive offense that

the parties are conspiring to commit.” Wardell, 591 F.3d at 1287. Mr. Busch

as to both elements Mr. Busch challenges on appeal, we need not address whether his sufficiency challenge to one element in the motion for a judgment of acquittal could preserve his sufficiency challenge to another element of the same offense, or whether the government waived the waiver by failing to assert it. 25 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 26

possessed the requisite intent for carjacking, so this necessarily establishes

he also possessed the requisite intent for conspiracy to commit carjacking.

See id. We thus reject Mr. Busch’s argument that the evidence was

insufficient on the intent element of § 371.

As to the interdependence element, Mr. Busch maintains “[t]he

government never proved how the other three friends stood to benefit by

helping [Mr. Busch] take a dirt bike from [Swenson’s] property, much less

how they planned to benefit by killing their friend, Swenson.” Opening Br.

at 50. This argument misunderstands the law.

The interdependence prong considers “if the activities of a defendant

charged with conspiracy facilitated the endeavors of other alleged

coconspirators or facilitated the venture as a whole.” Id. at 1291 (quoting

United States v. Horn, 946 F.2d 738, 740–41 (10th Cir. 1991)).

Interdependence requires “proof that the conspirators intended to act

together for their shared mutual benefit within the scope of the conspiracy

charged.” United States v. Hamilton, 587 F.3d 1199, 1208 (10th Cir. 2009)

(quoting United States v. Heckard, 238 F.3d 1222, 1231 (10th Cir. 2001)

(emphasis in original)). The “shared mutual benefit” need not be material

or personal to each actor; it requires only evidence that a defendant’s

“activities facilitated the endeavors of another alleged coconspirator or

26 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 27

facilitated the venture as a whole.” Id. at 1209 (quoting United States v.

Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998)).

Interdependence does not require proof that the coconspirators made

prudent or pragmatic decisions for their own independent benefit, as Mr.

Busch suggests. Rather, the evidence must show each coconspirator acted

for a “shared mutual benefit within the scope of the conspiracy charged” and

the activities of each “facilitated the endeavor as a whole.” Hamilton, 587

F.3d at 1208 (emphasis in original). Hamilton is instructive. There, the

evidence of interdependence was sufficient beyond a reasonable doubt—

even though Mr. Hamilton was not a member of the drug business and so

did not benefit directly—because his conduct, procuring payment for one

supplier, facilitated the overall venture. See id. at 1209.

So too here. The evidence shows Mr. Busch, Barnes, Hedgecock, and

Terrell each facilitated the objective of the conspiracy. For example, as the

government persuasively details, Mr. Busch “came up with the plan, asked

his friends to participate, selected the motorcycle to be stolen, and pushed

it off the property when it failed to start.” Answer Br. at 28. Reviewing de

novo, the evidence amply supports the government’s view of the record.21

21 The record shows Hedgecock drove the group to and from Swenson’s

house and used her handgun to deter Swenson from intervening, RIII.1224– 25, RIII.1237–38; Barnes pointed his gun at Swenson, watching his front door while Busch tried to start the dirt bike, RIII.1227–28, RIII.1234–35; 27 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 28

Because the record reflects each co-defendant’s activities “facilitated

the venture as a whole,” there was sufficient evidence of interdependence

to support the conspiracy conviction. Id. at 1211 (quoting Ailsworth, 138

F.3d at 851). We thus affirm Mr. Busch’s conviction under § 371.

VI

Mr. Busch next contends the evidence was insufficient to prove

beyond a reasonable doubt he carried a firearm—an element of his

convictions under 18 U.S.C. §§ 924(c) and 922(g)—and that the firearm or

ammunition traveled in interstate commerce—an element of his conviction

under § 922(g).22 We review Mr. Busch’s argument de novo under our

familiar standard, “viewing the evidence in the light most favorable to the

prosecution” and asking if “any rational trier of fact could have found [that

element] of the crime beyond a reasonable doubt.” Workman, 577 F.3d at

1183.

and Barnes and Terrell helped load the dirt bike into the truck bed, RIII.1246.

18 U.S.C. § 924(c)(1)(A) prohibits any person from “us[ing] or 22

carr[ying] a firearm” “during and in relation to any crime of violence” and provides additional penalties if the person brandishes the firearm. 18 U.S.C. § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . which has been shipped or transported in interstate or foreign commerce.” 28 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 29

Mr. Busch first emphasizes—correctly—no gun was ever recovered.

But that alone is not dispositive of the sufficiency issue. A jury could still

find beyond a reasonable doubt—based on other evidence presented by the

prosecution—Mr. Busch carried a firearm during the offense. See Desert

Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003). In Desert Palace, the Supreme

Court emphasized it has “never questioned the sufficiency of circumstantial

evidence in support of a criminal conviction, even though proof beyond a

reasonable doubt is required.” Id. The Court added “juries are routinely

instructed that the law makes no distinction between the weight or value

to be given to either direct or circumstantial evidence.” Id. (alteration

adopted) (internal quotations omitted). Accordingly, we consider both the

direct and circumstantial evidence here in deciding whether there was

sufficient evidence supporting Mr. Busch’s firearms convictions; we do not

require any particular piece or variety of evidence.

Mr. Busch further contends the surveillance camera footage from

Swenson’s security system did not establish beyond a reasonable doubt that

he possessed, see § 922(g), or carried, see § 924(c), a firearm. According to

Mr. Busch, the video showed “for no more than a second, a black speck at

[Mr. Busch’s] back near his waist band,” and later showed “another black

speck in his outstretched arm.” Opening Br. at 60. Mr. Busch argues this

29 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 30

footage is insufficient because testimony from a witness is necessary to

convict under the statute. In support, he relies on out-of-circuit precedents

where eyewitness testimony established sufficient evidence of firearm

possession. See Opening Br. at 61–62. We are not persuaded. The

authorities cited by Mr. Busch show only that testimony may be sufficient

to prove firearm possession, not that, as Mr. Busch mistakenly suggests,

such testimony is necessary to prove the element beyond a reasonable

doubt.23 And our independent review of the surveillance video supports

affirmance. The video shows

23 According to Mr. Busch, “[m]ost federal cases set a very low bar for

proving whether a person possessed a firearm,” but he insists “all expect at least a live witness to describe some characteristics of a real firearm.” Opening Br. at 61–62 (citing United States v. Jones, 16 F.3d 487, 491 (2nd Cir. 1994) (testimony from bank employees about a “silver gun with a white handle” sufficient to support a § 924(c) conviction); United States v. Cruz- Diaz, 550 F.3d 169, 173 (1st Cir. 2008) (testimony from bank employees about a “silver, shiny, nickel-plated pistol” sufficient to support a § 924(c) conviction); United States v. Castillo, 924 F.2d 1227, 1229 (2nd Cir. 1991) (testimony from a witness about a “dark revolver” sufficient to support a § 924(c) conviction)).

These cases give us no reason to doubt that properly admitted video footage is a sufficient basis for the jury’s fact-finding. See, e.g., United States v. Kamahele, 748 F.3d 984, 1010 (10th Cir. 2014) (affirming a conviction under § 924(c) based on surveillance video, the discovery of a matching gun, testimony by an accomplice that “the plan had called for [defendant] to carry a gun” and that defendant “had carried a sawed-off shotgun on the night of the robbery,” and testimony by a victim that the defendant had “showed her a gun”); see also United States v. Bell, 290 F. App’x 178, 181 (10th Cir. 2008) (affirming a conviction under § 924(c) because “the surveillance video 30 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 31

 Mr. Busch held in his hand a black object about the size of a firearm, Supp. R. at 15 (12:45:28);

 Before he held the object in his hand, Mr. Busch carried the object in a place on his body typical of carrying firearms (his waistband), Supp. R. at 13 (12:45:25, 12:45:27);

 Mr. Busch took out the object and pointed it at Swenson when Swenson came outside with a gun (rather than, for example, seeking cover or running away), Supp. R. at 14–15 (12:45:27–28);

 Mr. Busch gave orders to Swenson while pointing that black object at him, RIII.1238; and

 Hedgecock testified that she, Mr. Busch, and Barnes carried firearms that night and pointed their guns at Swenson when he came outside, RIII.1236–38.

Still, Mr. Busch insists the object shown in the surveillance footage

could “just as easily have been a wrench or other tool used to work on the

dirt bike.” Reply Br. at 30. We disagree. Our review is limited to whether

any rational trier of fact could have determined the object was a gun—not

whether there is a potentially reasonable alternative interpretation of the

evidence. See United States v. Hooks, 780 F.2d 1526, 1530 (10th Cir. 1986)

(noting the Supreme Court “flatly rejected” the idea “that a criminal

conviction cannot be sustained if a reasonable hypothesis could be designed

which is consistent with innocence”); see also Jackson, 443 U.S. at 326

(declining to adopt a theory that “the prosecution was under an affirmative

clearly show[ed] the robber carrying a firearm” and “[m]oreover, two eyewitnesses testified that they saw the robber with a firearm”). 31 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 32

duty to rule out every hypothesis except that of guilt beyond a reasonable

doubt”). And Mr. Busch’s position defies common sense on this record. The

surveillance video shows Mr. Busch, Barnes, and Hedgecock all in similar

postures, pointing objects of similar sizes and shapes at Swenson while

shouting at him to go inside. It is undisputed Barnes and Hedgecock held

guns.

Accordingly, we conclude a rational juror could have found the

government met the firearm-possession element of § 922(g) and firearm-use

element of § 924(c) beyond a reasonable doubt. See Workman, 577 F.3d at

Mr. Busch also argues there was insufficient evidence the firearm

traveled in interstate commerce. Opening Br. at 60. This argument is

appropriately reviewed at most for plain error. Recall, when a defendant

moves for a judgment of acquittal under Rule 29 “on specific grounds, all

grounds not specified in the motion are waived.” Kimler, 335 F.3d at 1141

(quoting United States v. Chance, 306 F.3d 356, 369 (6th Cir. 2002)). When

Mr. Busch’s counsel moved in the district court for a judgment of acquittal

on the firearms charges, he focused only on the possession element and did

not challenge the interstate-nexus evidence. RIII.1372–73 (counsel

disputing whether “what [Mr. Busch] was actually possessing at that time

32 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 33

was, in fact, a firearm,” but not addressing the interstate nexus). But review

under the plain error standard and review of sufficiency of the evidence for

a conviction “usually amount to largely the same exercise.” United States v.

Wyatt, 964 F.3d 947, 952 (10th Cir. 2020) (explaining “[a] conviction in the

absence of sufficient evidence of guilt” almost always meets the four factors

of plain error—an error, that is plain, affected the defendant’s substantial

rights, and seriously affects the fairness or integrity of the proceedings

(quoting United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013))). No

matter which standard is applied, Mr. Busch cannot prevail on appeal.

The government needed to prove Mr. Busch “possess[ed] in or

affecting commerce, any firearm or ammunition . . . which ha[d] been

shipped or transported in interstate or foreign commerce.” 18 U.S.C.

§ 922(g)(1) (emphasis added). And there was sufficient evidence as to both

the firearm and the ammunition to permit “any rational trier of fact [to]

have found [the interstate commerce] element[] of the crime beyond a

reasonable doubt.” See Workman, 577 F.3d at 1183.

First, the government presented expert testimony that New Mexico’s

187 licensed firearm manufacturers could not sell a firearm to someone (like

Mr. Busch) with a prior felony conviction. See RIII.1354–56. This testimony

could have permitted a jury to find Mr. Busch’s firearm was manufactured

out-of-state.

33 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 34

Second, there was even more evidence on the interstate nexus element

for the ammunition. The statutory definition of ammunition includes

“primers” and “propellent powder.” See 18 U.S.C. § 921(a)(17)(A). The

government’s expert testified that certain primers and powder are not

manufactured in New Mexico. RIII.1357–58. This testimony could have

permitted a jury to find the ammunition in Mr. Busch’s firearm had traveled

in interstate commerce.

Because the surveillance footage and expert testimony provided

sufficient evidence that Mr. Busch carried a firearm and that the firearm

or ammunition had traveled in interstate commerce, we affirm his

convictions under §§ 924(c) and 922(g).

VII

We turn next to Mr. Busch’s appellate challenges to the jury

instructions. Mr. Busch claims the district court incorrectly instructed the

jury on the elements of carjacking under § 2119(3). He also claims the

district court erroneously deprived him of a jury instruction on self-defense

to the carjacking charge. We consider each argument and conclude neither

is properly before us on this record.

Mr. Busch first contends the death-results element of § 2119(3) should

have been placed in a separate interrogatory and failing to do so is

34 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 35

reversible error. See Opening Br. at 54–55.24 Mr. Busch did not make this

argument in the district court. Instead, he urged the district court to adopt

the very formulation he now challenges. Under these circumstances, the

invited-error doctrine typically bars appellate review. See United States v.

Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“[T]he invited-error doctrine

precludes a party from arguing that the district court erred in adopting a

proposition that the party had urged the district court to adopt.”).

Mr. Busch insists the argument is preserved. He claims “[a]ppellant,

and all the other codefendants, emphatically objected to the court’s

proposed instruction” and asked to separate the death-results element into

another instruction and interrogatory. Opening Br. at 53–54. As relevant to

preservation, Mr. Busch’s position is disingenuous. From what Mr. Busch

tells us in his appellate briefing, it would seem defense counsel opposed the

instruction in the district court (thus suggesting the argument advanced on

appeal is preserved). But a review of the transcript confirms it was the

prosecutor who objected to the proposed language. The court asked, “So

24 At oral argument, defense counsel also seemed to suggest the death-

results element should not have been included at all. See Oral Arg. 12:45- 13:12 (Mr. Busch’s counsel maintaining that the government asked the district court to include the death-results element in a separate instruction, while the defense asked to omit it altogether). Mr. Busch has not previously taken this position—neither on appeal nor in the district court. “[I]ssues may not be raised for the first time at oral argument.” United States v. Malone, 10 F.4th 1120, 1124–25 (10th Cir. 2021). 35 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 36

what you’re asking -- Are you asking me to remove the fifth element from

the current draft of Number 7?” RIII.1530. The prosecutor responded, “That

would be the objection, Your Honor. And make it its own, like, a separate

page, like a special interrogatory.” RIII.1530.

Mr. Busch’s counsel opposed the government’s position and argued in

favor of the instruction the court ultimately gave (which is now challenged

on appeal). “I would object to doing that,” counsel for a co-defendant said,

in response to the government’s proposal to separate the death-results

instruction into its own interrogatory. RIII.1532. “I think it’s totally proper

the way the Court’s done it.”25 RIII.1532. Mr. Busch’s counsel then

specifically joined in that objection “on behalf of Mr. Busch,” asking the

court not to separate the death-results instruction into its own

interrogatory. RIII.1532.

We do not reach the merits of this legal challenge because Mr. Busch’s

arguments are foreclosed by the invited-error doctrine.

25 We are compelled to remind counsel of their duty of candor as officers of the court. See Hollingsworth v. Perry, 570 U.S. 693, 722 (2013) (Kennedy J., dissenting) (recognizing that “litigants and counsel who appear before a federal court[] are subject to duties of candor, decorum, and respect for the tribunal and co-parties alike”); see also Roosevelt-Hennix v. Prickett, 717 F.3d 751, 758 n.11 (10th Cir. 2013) (emphasizing that “[f]actual contentions made on appeal should be supported in the record” and reminding counsel “of the duty of candor to the court” when counsel had “failed to meet these important obligations”).

36 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 37

Mr. Busch also claims the district court erroneously refused to give a

self-defense instruction on the carjacking count.26 Opening Br. at 55–56.

According to Mr. Busch, the district court should have “explained to the

jurors” that if the co-defendants “did not have the intent to cause death or

serious bodily injury should a crime have been committed in Appellant’s

taking of the dirt bike . . . self-defense to the increasingly violent action of

[Swenson], first pointing [his] gun and then firing the gun, was

appropriate.” Opening Br. at 55–56.

“We review the district court’s decision to give a particular jury

instruction for abuse of discretion; however, we review the instructions as

a whole de novo to determine whether they accurately informed the jury of

the governing law.” United States v. Toledo, 739 F.3d 562, 567 (10th Cir.

2014). “Specifically, a defendant is entitled to an instruction on any

26 There is no dispute the district court refused to give the self-defense

instruction on the carjacking count. But it is not entirely clear in the record whether the district court made an affirmative ruling on the issue. The parties have not identified the ruling nor did we locate it ourselves. We understand, however, the court functionally denied a self-defense instruction on count two by ruling it would permit a self-defense instruction only on count five, which charged Mr. Barnes with murder. See RIII.1551 (the court noting, “I included [a self-defense instruction] just as to Count 5”). 37 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 38

recognized defense for which there is evidence sufficient for a reasonable

jury to find in his favor.” Id.

But “[g]enerally, a federal appellate court does not consider an issue

not passed upon below.” United States v. Leffler, 942 F.3d 1192, 1196 (10th

Cir. 2019) (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)); see also id.

(noting if an appellant fails to “cite the precise references in the record

where the issue was raised and ruled on in the district court” then “we may

assume the appellant did not preserve the issue for appeal and refuse to

review the alleged error” (quoting Harolds Stores, Inc. v. Dillard Dep’t

Stores, Inc., 82 F.3d 1533, 1540 n.3 (10th Cir. 1996))). When an argument

is forfeited in the district court, the issue on appeal is then subject to plain-

error review. See Zander, 794 F.3d at 1232 n.5. But “[w]hen an appellant

fails to preserve an issue and also fails to make a plain-error argument on

appeal, we ordinarily deem the issue waived (rather than merely forfeited)

and decline to review the issue at all—for plain error or otherwise.” Leffler,

942 F.3d at 1196.

On the record before us, we fail to see how Mr. Busch preserved in the

district court his appellate argument on the self-defense instruction. Mr.

Busch asserts on appeal “[he] and his co-defendants . . . argued that a

self-defense instruction should have been allowed for the carjacking count

two.” Opening Br. at 55 (citing RIII.1547). But that portion of the record

38 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 39

reveals only the defense attorneys discussing various other jury

instructions unrelated to self-defense and answering “no objection” as to

each. We have also reviewed the record independently and failed to find

where Mr. Busch preserved this issue.27

Perhaps Mr. Busch seeks to establish preservation through the

advocacy of codefendant Barnes. But even if Barnes preserved the issue,

“an objection by one defendant is not sufficient to preserve the issue for

appeal for another defendant, at least when . . . there is no agreement

among the defendants that an objection by one defendant will count as an

objection by all defendants.” United States v. Zapata, 546 F.3d 1179, 1190

(10th Cir. 2008); see also United States v. Brown, 654 F. App’x 896, 905

(10th Cir. 2016) (relying on Zapata to find a challenge to certain expert

testimony was not properly preserved when the record revealed “only

objections made by [a codefendant], and seemingly not joined by Brown”).28

Mr. Busch makes no affirmative argument on appeal that Barnes’ advocacy

has preserved the issue on his behalf.

27 For example, Mr. Busch’s counsel filed a brief opposing the government’s motion in limine, which in part asked the court to preclude a self-defense instruction, without addressing that request or arguing a self- defense instruction was warranted. See RI.232.

28 This unpublished authority is not binding on the panel, but we find

it persuasive. See 10th Cir. R. 32.1.

39 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 40

We acknowledge the government did not challenge preservation and

addressed the issue on the merits. It seems the government has waived the

waiver. See Dine Citizens Against Ruining Our Env’t v. Haaland, 59 F.4th

1016, 1038 n.9 (10th Cir. 2023) (reasoning appellee “did not argue that the

argument was waived in its response brief, so the waiver has been waived”).

Still, we retain a measure of discretion over “what questions may be taken

up and resolved for the first time on appeal.” Singleton, 428 U.S. at 121. For

example, we may “determine an issue raised for the first time on appeal if

it is a pure matter of law and its proper resolution is certain.” First W. Cap.

Mgmt. Co. v. Malamed, 874 F.3d 1136, 1144 (10th Cir. 2017) (quoting Cox

v. Glanz, 800 F.3d 1231, 1246 n.7 (10th Cir. 2015)). Here, the “proper

resolution” of the legal question is uncertain.29 And the record—which

suggests the issue was not raised by Mr. Busch or ruled upon with him in

29 For example, the government argues self-defense does not apply to

the death-results element of the carjacking statute. Answer Br. at 36–38. The death-results element of the carjacking statute has been characterized in dicta as a “strict-liability element.” See United States v. Moya, 5 F.4th 1168, 1181 (10th Cir. 2021) (reasoning that the death-results element of a drug distribution statute was a strict liability element and citing the interpretation in United States v. Lowell, 2 F.4th 1291, 1293–95 (10th Cir. 2021), of the death-results element in the federal carjacking statute as a similar strict liability element). We cannot say Moya compels the conclusion the government advances. Moya concerns whether the government needed to prove a particular mental state attached to the death-results element; it did not address the availability of affirmative defenses. In any event, that issue is pending in co-defendant Barnes’s appeal. See No. 22-2147. 40 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 41

mind—does not permit meaningful appellate inquiry into the parameters of

the district court’s ruling.

On the record before us, we adhere to the general rule that “[n]ormally

when a party presents a new argument on appeal and fails to request plain

error review, we do not address it.” Id. (quoting Margheim v. Bulijko, 855

F.3d 1077, 1088 (10th Cir. 2017)). We therefore do not consider further

whether the district court erred in formulating the death-results element

as part of the carjacking instruction and in failing to give a self-defense

instruction to the carjacking charge.

VIII

Mr. Busch next argues the district court abused its discretion in

excluding his toxicology expert. Opening Br. at 56. Evidentiary rulings

“generally are committed to the very broad discretion of the trial judge, and

they may constitute an abuse of discretion only if based on an erroneous

conclusion of law, a clearly erroneous finding of fact or a manifest error in

judgment.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1246 (10th Cir.

1998). According to Mr. Busch, the defense expert would have testified that the

concentration of methamphetamine in Swenson’s blood could have caused

Swenson to have symptoms of “paranoia” and “confusion” that evening.

Opening Br. at 57. On appeal, Mr. Busch asserts he planned to argue the “level

of methamphetamine in [Swenson’s] system” affected “whether he would act in

41 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 42

an unreasonable manner.” RIII.2142. But there is a fundamental problem with

Mr. Busch’s appellate position. He never attempted to introduce a toxicology

Recall, at the pretrial conference, Mr. Busch’s trial counsel mentioned

for the first time that the defense sought to introduce a toxicology expert.

RIII.2142. The deadline for designation of expert witnesses had passed, but the

district court was willing to “reconsider a deadline if there’s good cause, if [Mr.

Busch] [did] have an expert,” since there was “some time before trial.”

RIII.2142. Ultimately, the district court decided it would “leave [it] up to [Mr.

Busch]” whether to proffer an expert, as long as he could “show good cause for

this late notice.” RIII.2142. Mr. Busch never proposed a toxicology expert, and

he proceeded to trial without presenting testimony or evidence.

Because Mr. Busch never proposed an expert, there is no ruling by the

district court on the admission or exclusion of a toxicology expert. See Leffler,

942 F.3d at 1196 (a proper appeal must identify where in the record “the issue

was raised and ruled on in the district court”). The error alleged on appeal—

the erroneous exclusion of the defense toxicology expert—simply did not occur.

IX

Mr. Busch’s final challenge on appeal is to the procedural

reasonableness of his sentence. Procedural reasonableness “focuses on the

manner in which the sentence was calculated.” United States v. Sanchez-

42 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 43

Leon, 764 F.3d 1248, 1261 (10th Cir. 2014) (quoting United States v. Masek,

588 F.3d 1283, 1290 (10th Cir. 2009)) (internal quotations omitted); see also

Gall v. United States, 552 U.S. 38, 51 (2007) (noting that procedural

sentencing error includes “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence”).

Mr. Busch contends the district court erroneously applied the

obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 to increase his

base offense level. Mr. Busch objected to the enhancement in district court,

so we review for an abuse of discretion. See United States v. Garcia, 946

F.3d 1191, 1211 (10th Cir. 2020). “A district court by definition abuses its

discretion when it makes an error of law.” Koon v. United States, 518 U.S.

81, 100 (1996). But we need not conclusively resolve whether the district

court erred. We agree with the government that any error in the application

of the obstruction enhancement was harmless on this record.

The Presentence Investigation Report (PSR) calculated Mr. Busch’s

advisory Guidelines range based on a total offense level of 43 and criminal

history category of V. Supp. RII. 26, ¶ 82. The PSR also recommended an

enhancement for obstruction of justice under U.S.S.G. § 3C1.1, which

43 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 44

provides for an increase of two in a defendant’s offense level if he “willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction.” Supp. RII.10, ¶ 32. Mr.

Busch objected to the application of the obstruction enhancement. Supp.

RIII.6. He emphasized he “did not resist his arrest, and did not threaten the

safety of any law enforcement officers at the scene of his arrest.” Supp.

RIII.6.

At sentencing, the district court found the “firearm [Mr. Busch carried

during the offense] was never recovered by law enforcement” and “Mr.

Busch evaded capture immediately and in the days after the shooting

despite being aware that law enforcement was looking for him.” RIII.1822.

Based on those findings, the district court concluded Mr. Busch had

obstructed or impeded the administration of justice for purposes of § 3C1.1

by “destroying or concealing . . . evidence that [wa]s material to an official

investigation” and engaging in “conduct . . . calculated . . . to thwart the

investigation.” RIII.1822–24. The two-level enhancement under § 3C1.1

increased Mr. Busch’s total offense level from 43 to 45. But 43 is the

maximum offense level recognized by the Guidelines, as “an offense level of

more than 43 is to be treated as an offense level of 43. U.S.S.G. Ch. 5, Part

A, cmt. n.2.

44 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 45

The district court then considered “whether the guidelines counsel[ed]

any departures.” RIII.1825.30 The court noted the advisory guideline for

robbery, U.S.S.G. § 2B3.1(c)(1), cross references § 2A1.1. See § 2B3.1(c)(1)

(“If a victim was killed under circumstances that would constitute

murder . . . , apply § 2A1.1 (First Degree Murder).”). In turn,

U.S.S.G. § 2A1.1, cmt. n.2(B) provides in a sentencing for first-degree

murder, “[i]f the defendant did not cause the death intentionally or

knowingly, a downward departure may be warranted.”

“[A]lthough [Mr. Busch] . . . was a chief instigator of the conspiracy,”

the district court found, “he was not the shooter and was not in the

immediate vicinity where the shots were fired.” RIII.1826. Mr. Busch did

not “commence the carjacking with the purpose of killing the victim,” the

district court reasoned. RIII.1826. The district court determined there was

a “sufficient basis to depart to offense level 38”—the base offense level for

second-degree murder. RIII.1827. This made the advisory Guidelines range

30 Departures are sentences outside of the advisory Guidelines range

authorized by specific policy statements. See U.S.S.G. Ch. 1, Pt. A Subpt. (1)(4)(b). The Guidelines provide “[w]hen a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” U.S.S.G. Ch. 1, Pt. A, Subpt. (1). Here, the record does not reveal whether the court raised the possibility of a departure at Mr. Busch’s request or sua sponte, although the court noted “a departure [wa]s wholly within [its] discretion.” RIII.1825. 45 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 46

360 months to life. RIII.1827. The district court ultimately imposed a

sentence of 480-months imprisonment.31 RI.785–87.

Mr. Busch urges a remand for resentencing. He claims the district

court impermissibly based the obstruction enhancement on his attempt to

evade arrest. In support, Mr. Busch points to U.S.S.G. § 3C1.1, which

identifies “avoiding or fleeing from arrest” as an example of “conduct [that]

ordinarily do[es] not warrant application of this adjustment.” U.S.S.G.

§ 3C1.1 cmt. n.5(D); see also Stinson v. United States, 508 U.S. 36, 38 (1993)

(“[C]ommentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal

statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.”). Faced with the language of the Commentary, the government

does not meaningfully dispute the district court erred. Rather, the

government contends any error is harmless. On the unique facts of this case,

we agree.

31 Mr. Busch was sentenced to concurrent prison terms of 60 months

on Count 1, 396 months on Count 2, and 120 months on Count 7, and a consecutive term of 84 months on Count 4, for a total of 480 months. RI.785– 87. 46 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 47

When a defendant “meets the initial burden of showing that the

district court erred” in calculating an advisory sentencing range,

“resentencing is required only if the error was not harmless.” United States

v. Eddington, 65 F.4th 1231, 1243 (10th Cir. 2023) (quoting Sanchez-Leon,

764 F.3d at 1262). In the sentencing context, “[h]armlessness must be

proven by a preponderance of the evidence,” and “the beneficiary of the

error”—here, the government—bears the burden of proof. Id. (quoting

Sanchez-Leon, 764 F.3d at 1262). In this context, “an error is harmless if it

‘did not affect the district court’s selection of the sentence imposed.’” United

States v. Keck, 643 F.3d 789, 798 (10th Cir. 2011) (quoting United States v.

Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005)).

The government urges affirmance under United States v. Keck. That

case concerned a procedural reasonableness challenge to the defendant’s

sentence for a drug conspiracy conviction. Id. at 797. There, we found the

district court erred by applying sentencing enhancements based on an

incorrect drug quantity. Id. The erroneous enhancement increased the

defendant’s base offense level from 46 to 48. Id. at 801. Still, we concluded

the error could be deemed harmless for two reasons. See id. First, “the

sentencing error did not affect . . . the advisory sentence,” since the

Guidelines provided that any offense level above 43 would be treated as an

47 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 48

offense level of 43. See id. (“According to the sentencing table, an offense

level of 43 or above results in an advisory sentence of life imprisonment.”).

Second, the error did not affect “the district court’s reasoning in imposing a

life sentence,” since the district court had identified on the record reasons

unrelated to drug quantity—such as deterrence—to justify the sentence

imposed. Id. at 802.

We agree with the government that, on this record, affirmance is

appropriate under Keck. Here, as in Keck, the advisory Guidelines range

was unaffected by the alleged error because the base offense level was at or

above the maximum recognized offense level. See id. at 801. As calculated,

Mr. Busch’s offense level was 43 (without the obstruction enhancement) or

45 (with the enhancement). Because, as the district court correctly

observed, “the sentencing guidelines max out at offense level 43,” both carry

the same advisory Guidelines sentence—life imprisonment. RIII.1825.

Then, the district court specifically departed downward to offense

level 38, because it found “Mr. Busch did not commence the carjacking with

the purpose of killing of the victim” but rather that “his actions were, at

best, extremely reckless and negligent.” RIII.1826. The district court found

it appropriate, “based on this conduct,” to depart specifically to the offense

level for second-degree murder. RIII.1826–27.

48 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 49

And the district court’s reasoning at sentencing seems to have been

unaffected by the error. In Keck, no facts relating to the erroneous

adjustment for drug quantity featured in the district court’s rationale at

sentencing. See id. at 802 (observing “the district court indicated it relied

on . . . (1) the severity of the offense; (2) the necessity to protect the

community and to deter future drug conspiracies; and (3) the lack of

circumstances justifying a variance” rather than on any facts associated

with the upward adjustment). Similarly, here, the district court did not rely

on facts relating to the obstruction of justice enhancement in selecting the

ultimate sentence imposed of 480-months imprisonment.

Even assuming the district court improperly applied the enhancement

under § 3C1.1, Mr. Busch’s procedural reasonableness challenge is

unavailing on this record. The government has shown that any error was

harmless because it did not affect the district court’s selection of Mr.

Busch’s sentence.

XI

We AFFIRM Mr. Busch’s conviction and sentence.

ENTERED FOR THE COURT

Veronica S. Rossman Circuit Judge