United States v. Leib

57 F.4th 1122

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 18, 2023
• Docket: 21-2136
• Status: Published

Opinion

Appellate Case: 21-2136 Document: 010110799232 Date Filed: 01/18/2023 Page: 1 FILED United States Court of Appeals Tenth Circuit

PUBLISH January 18, 2023

Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court FOR THE TENTH CIRCUIT _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2136

JOSHUA LEIB,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:18-CR-03658-JCH-1) _________________________________

Erlinda O. Johnson, The Law Office of Erlinda O. Johnson, Albuquerque, New Mexico, for Appellant Leib.

Emil J. Kiehne, Assistant U.S. Attorney (Alexander M. M. Uballez, U.S. Attorney, with him on the brief), Albuquerque, New Mexico, for Appellee United States of America. _________________________________

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

EBEL, Circuit Judge. _________________________________

In this direct criminal appeal, Defendant Joshua Leib challenges the

100-month sentence he received for his conviction for being a previously convicted

felon in possession of a firearm. The specific sentencing question presented by this Appellate Case: 21-2136 Document: 010110799232 Date Filed: 01/18/2023 Page: 2

appeal is whether the district court clearly erred in calculating Mr. Leib’s advisory

prison range under the sentencing guidelines by enhancing his base offense level

under U.S.S.G. § 2K2.1(b)(6)(B). That guideline adds four offense levels if a

defendant used a firearm in connection with another felony; here, that other felony

was shooting at a dwelling in violation of New Mexico law. We conclude there was

sufficient evidence for the sentencing court to find, by a preponderance of the

evidence, that this enhancement applied in Mr. Leib’s case. Having jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we, therefore, AFFIRM Mr. Leib’s

sentence.

I. BACKGROUND

The following facts are undisputed. On August 28, 2018, Mr. Leib, in his

mid-fifties, was living with his parents in their Albuquerque home. Mr. Leib had a

long and violent criminal history and ongoing problems with substance abuse and

mental illness. Distraught because his father was gravely ill, Mr. Leib left the house,

became intoxicated, returned to the home and went into his bedroom. Soon

thereafter, Mr. Leib’s mother’s friend called police to report shots being fired in the

Leib home. A police dispatcher called Mr. Leib’s mother, Norma Leib, who reported

that she had heard three gun shots in her home, her son may have shot himself, and

she was hiding in another bedroom in the house.

When responding officers approached the Leib home, they saw an empty gun

case and ammunition in plain view on the passenger floorboard of Mr. Leib’s vehicle

parked in the driveway. Norma Leib met officers in the driveway and explained that

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her ill husband was unconscious in his bedroom, while Mr. Leib was in his own

bedroom. Although Mr. Leib had not made any suicidal or homicidal statements,

Norma Leib expressed her concern that Mr. Leib “may be laying there dead for all I

know.” (I R. 106.) When officers outside the home were unsuccessful in getting Mr.

Leib to respond, they looked into the open window in his first-floor bedroom and saw

Mr. Leib passed out on the floor. Officers determined that Mr. Leib was alive but

“very drunk” (id. at 107 (alteration omitted)), and that there was a firearm on the

floor near Mr. Leib. Officers then entered Mr. Leib’s bedroom and seized the firearm

for safe-keeping, along with six spent shell casings. After an officer standing in Mr.

Leib’s bedroom commented that he did not see any bullet holes in the walls or

ceiling, Norma Leib, who had followed the officers to Mr. Leib’s bedroom, stated

that Mr. Leib had shot the gun into the floor. Officers determined that Mr. Leib did

not require medical attention and left. The incident was recorded by the officers’

body cameras.

Based on this incident, the State of New Mexico initially charged Mr. Leib

with 1) shooting at a dwelling and 2) unlawful possession of a firearm by a felon.

The State dropped those charges, however, when the United States indicted Mr. Leib

on the federal offense of being a previously convicted felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Leib pled guilty to that federal

offense.

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In preparation for sentencing, the amended presentence report (“PSR”)

determined Mr. Leib’s total offense level to be 27, based on the following

calculations:

base offense (U.S.S.G. § 2K2.1(a)(2)) 24

firearm was stolen (U.S.S.G. § 2K2.1(b)(4)(A)) +2

Mr. Leib used or possessed the firearm in connection with +4 another felony offense (U.S.S.G. § 2K2.1(b)(6)(B))

acceptance of responsibility (U.S.S.G. § 3E1.1) -3

total offense level 27

Mr. Leib objected to the PSR’s application of the four-offense-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with

another felony offense. The district court overruled that objection and determined

that Mr. Leib’s total offense level was 27 and his criminal history category was VI,

resulting in an advisory guideline range of 130 to 162 months in prison. But because,

by statute, Mr. Leib’s offense of conviction was punishable by no more than ten

years in prison, see 18 U.S.C. § 924(a)(2) (subsequently amended and renumbered),

his guideline range became 120 months. See U.S.S.G. § 5G1.1(a). At sentencing,

the district court varied downward from that range to impose a 100-month prison

sentence to be followed by a three-year term of supervised release. On appeal,

Mr. Leib challenges the application of the four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B).

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II. STANDARD OF REVIEW

“When evaluating sentence enhancements under the Sentencing Guidelines,

this Court reviews the district court’s factual findings for clear error and questions of

law de novo.” United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022). In

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

error. See United States v. Sanchez, 22 F.4th 940, 942 (10th Cir. 2022). Thus, “we

will not disturb the district court’s factual findings unless they have no basis in the

record” and, in reviewing the record, “we view the evidence and inferences therefrom

in the light most favorable to the district court’s determination.” United States v.

Hoyle, 751 F.3d 1167, 1174 (10th Cir. 2014).

III. DISCUSSION

“The government has the burden of proving, by a preponderance of the evidence,

that Section 2K2.1(b)(6) applies.” United States v. Kitchell, 653 F.3d 1206, 1226 (10th

Cir. 2011). Section § 2K2.1(b)(6)(B) adds four offense levels if a defendant

convicted of unlawfully possessing a firearm “used or possessed any firearm or

ammunition in connection with another felony offense.” “‘Another felony offense,’ for

purposes of subsection (b)(6)(B), means any federal, state, or local offense, other

than the . . . firearms possession . . . offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” Id. cmt. 14(C).

In this case, the district court found that Mr. Leib used the firearm he

unlawfully possessed in connection with the felony of shooting into a dwelling in

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violation of N.M. Stat. § 30-3-8(A).1 That state offense required proof that Mr. Leib

“willfully” shot a firearm, targeting a building that he knew to be a dwelling. See

N.M. Cr. UJI 14-340A (2014); State v. Comitz, 443 P.3d 1130, 1136 (N.M. 2019).

“Willfully” under New Mexico law means “conscious or intentional conduct.” State

v. Coleman, 264 P.3d 523, 528–29 (N.M. Ct. App. 2011) (quoting State v. Varela,

993 P.2d 1280, 1291 (N.M. 1999)). It was not enough, then, for the Government to

show that Mr. Leib discharged a gun in the home or that somehow bullets ended up

in the dwelling. See Comitz, 443 P.3d at 1136–37 (overturning felony murder

conviction based on the felony of shooting at a dwelling where the evidence showed

only that the defendant “specifically and primarily targeted,” not the dwelling, but

particular individuals standing in front of a house). The Government had to show

that the house was Mr. Leib’s “principal target.” Id. at 1137.

1 New Mexico Stat. § 30-3-8(A) states in full:

Shooting at a dwelling or occupied building consists of willfully discharging a firearm at a dwelling or occupied building. Whoever commits shooting at a dwelling or occupied building that does not result in great bodily harm to another person is guilty of a fourth degree felony. Whoever commits shooting at a dwelling or occupied building that results in injury to another person is guilty of a third degree felony. Whoever commits shooting at a dwelling or occupied building that results in great bodily harm to another person is guilty of a second degree felony.

This statute appears to be aimed primarily at drive-by shootings. We doubt that the New Mexico legislature had the scenario presented in this case—shooting into the floor of a single family home from inside the house—in mind when it enacted this criminal statute. Nevertheless, the statute’s language is broad enough to cover the situation presented here.

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On appeal, Mr. Leib does not dispute that he possessed and discharged a

firearm in his bedroom and that he knew that he was in a dwelling. Nor does he

challenge on appeal the district court’s determination that firing a gun inside a

dwelling can support a conviction under N.M. Stat. § 30-3-8(A) for shooting at a

dwelling.2 Mr. Leib challenges only the sufficiency of the Government’s evidence to

establish that he “willfully” targeted the dwelling.3

In finding that Mr. Leib willfully shot at the dwelling, the district court ruled:

I agree with several things [defense counsel] has pointed out. The neighbor reported hearing shots from the house, the defendant’s mother heard the shots herself, and was concerned that her son may have shot himself.

I agree with some of things that the Government has pointed out . . . . It doesn’t appear that there was another person who was a target of those shots and so the defendant argues that the only evidence points to himself being the target. I agree with the prosecutor’s argument that . . . the defendant had attempted suicide in the past and harmed himself. He didn’t . . . succeed in killing himself, but he did harm himself. In this case, the defendant was not harmed at all by the shooting.

The thing I find the most persuasive is the [state] criminal complaint that is attached to the defendant’s objection . . . .

2 The New Mexico Supreme Court, in a “nonprecedential decision,” has upheld a conviction for shooting at a dwelling, based on the defendant shooting both into the ceiling of an apartment and by shooting at someone when the bullet lodged in the outside wall of an apartment. See State v. Pagan-Rivera, No. S-1-SC-34832, 2015 WL 5512011, at *14 (N.M. Sept. 17, 2015) (unpublished). 3 For the first time in his reply brief, Mr. Leib also asserts that the sentencing court procedurally erred by failing to make adequate findings to support application of the enhancement to Mr. Leib’s case. Because Mr. Leib did not previously raise that specific argument, however, he has waived it. See United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). 7 Appellate Case: 21-2136 Document: 010110799232 Date Filed: 01/18/2023 Page: 8

And this is the part I find persuasive. “I heard Norma [Leib] stating Josh shot three rounds into the floor, somewhere in his room.”

So taking that statement, it certainly sounds to me like the Government has met its burden by a preponderance of the evidence that Josh shot three rounds into the building. The fact that he was in the house doesn’t change the analysis. It wasn’t just one shot that happened to be fired, it was three shots, and all three rounds were shot into the floor, somewhere in his room.

So that sounds to me like the building was the intended target, especially when you take into consideration that it wasn’t just one random shot, it was actually three. So I do think that the Government has met its burden, and I will overrule the defendant’s objection.

(IV R. 133–35.) The district court, thus, found that Mr. Leib willfully shot into the

floor of his bedroom, relying on the totality of the circumstances and in particular

Mr. Leib’s mother Norma’s statement that Mr. Leib fired the gun into the floor. The

district court’s analysis was not clearly erroneous.

“[V]iew[ing] the evidence and inferences therefrom in the light most favorable

to the district court’s determination,” Hoyle, 751 F.3d at 1174, the totality of the

circumstances indicated that Mr. Leib did not shoot at anyone. There was no one else

in his room and he had not made any homicidal statements. Further, the district court

reasonably inferred that, because Mr. Leib had fired three shots, he did not

accidentally discharge the gun.

Defense counsel asserts that Mr. Leib must have been trying to kill himself

and, therefore, he was the likely target of the shots—not the house. But there is no

evidence to support that assertion. Norma Leib told police officers that Mr. Leib,

although distraught, had not made any suicidal statements. Furthermore, the district

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court reasonably inferred that, when Mr. Leib had previously tried to kill himself, he

had caused harm to himself, as reported in the PSR (III R. (sealed) 29 ¶¶ 101–03).

Yet on this occasion, Mr. Leib fired a gun three times and he remained uninjured.

Defense counsel points to Norma Leib’s statements to police that she feared

Mr. Leib had shot himself. But at the time Norma Leib made those statements, she

did not know what had happened. It was only after Norma Leib followed officers to

her son’s bedroom—and discovered that he was unharmed and that there were no

bullet holes in the walls or ceiling of his bedroom—that she stated that her son had

shot into the floor.

For the first time on appeal, Mr. Leib argues that the district court erred in

relying on his mother’s statement that Mr. Leib shot into the floor because it was

unreliable hearsay. Because Mr. Leib forfeited this argument by not making it at

sentencing, we review for plain error.4 See Fed. R. Crim. P. 52(b). It is Mr. Leib’s

burden, then, to establish 1) error 2) that was plain, and 3) that affected his

substantial rights. See Greer v. United States, 141 S. Ct. 2090, 2096–97 (2021). If

Mr. Leib can make such a showing, we would have discretion to grant relief if “the

4 We disagree with Mr. Leib that he preserved this argument in the district court by objecting generally “to the imposition of the enhancement and the evidence the district court was relying upon to support it.” (Aplt. Reply Br. 4.) A general argument to the district court will usually be insufficient to preserve a more specific argument for appeal. See United States v. Finnesy, 953 F.3d 675, 689 (10th Cir. 2020) (holding general request for a concurrent sentence was insufficient to preserve for appeal argument that district court should have applied a specific guideline provision that he had never before mentioned).

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error had a serious effect on ‘the fairness, integrity or public reputation of judicial

proceedings.’” Id. at 2096–97 (quoting Rosales-Mireles v. United States, 138 S. Ct.

1897, 1905 (2018)); see United States v. Ruby, 706 F.3d 1221, 1225–26, 1228 (10th Cir.

2103) (noting that plain-error review applies to argument raised for the first time on

appeal that sentencing court erred in relying upon unreliable hearsay). Here, however,

Mr. Leib has failed to show any error, let alone plain error.5

The evidence before the district court establishing that Norma Leib stated that

Mr. Leib shot into the floor was the criminal complaint and arrest warrant affidavit

used to initiate the later-dismissed state charges against Mr. Leib. That affidavit was

made by a police officer who had reviewed one of the responding officers’ body

camera recordings. The affiant officer attested that, on that recording, he heard

Norma Leib state that Mr. Leib had shot into the floor of his bedroom.

Mr. Leib claims that this evidence of his mother’s statement is hearsay. Even

so, a sentencing court can rely upon hearsay at sentencing if it is reliable. “While the

due process clause protects a defendant’s right not to be sentenced on the basis of

materially incorrect information, hearsay statements may be considered at sentencing if

they bear ‘some minimal indicia of reliability.’” United States v. Cook, 550 F.3d 1292,

1296 (10th Cir. 2008) (quoting United States v. Browning, 61 F.3d 752, 755 (10th Cir.

1995)); see also United States v. Martinez, 824 F.3d 1256, 1260 n.5 (10th Cir. 2016).

5 Although Mr. Leib did not address the plain-error analysis until his reply brief, we exercise our discretion to consider Mr. Leib’s arguments. See United States v. Portillo-Uranga, 28 F.4th 168, 177 (10th Cir. 2022). 10 Appellate Case: 21-2136 Document: 010110799232 Date Filed: 01/18/2023 Page: 11

See generally U.S.S.G. § 6A1.3, cmt. (“In determining the relevant facts, sentencing

judges are not restricted to information that would be admissible at trial.”).

Norma Leib’s statement meets the required “some minimal indicia of

reliability” standard. As just explained, the totality of the circumstances

corroborated Norma Leib’s statement that Mr. Leib intentionally fired several shots

into the floor of his bedroom. See Ruby, 706 F.3d at 1229 (“Corroborating evidence

is often key to determining whether a statement is sufficiently reliable.”); see also

Martinez, 824 F.3d at 1263.

Moreover, there is nothing in the record to suggest that Norma Leib had any

bias against Mr. Leib which might prompt her to incriminate Mr. Leib falsely. To the

contrary, one of the next things Norma Leib said to the officers after stating that Mr.

Leib had shot into the floor was to decline to act as a witness against her son on a

state charge of negligently discharging a firearm in a house.

This case, then, is distinguishable from United States v. Fennell, 65 F.3d 812

(10th Cir. 1995), on which Mr. Leib relies. In Fennell, this court did rule that the

sentencing court erred in applying a sentencing enhancement based on unreliable

hearsay. See 65 F.3d at 813–14. In that case, the government tried to support

applying a sentencing enhancement for using an unlawfully possessed firearm during

a felony assault using evidence that the defendant fired a machine gun at his

girlfriend. Id. at 813. The only evidence of that fact, however, was the unsworn

statement from the girlfriend taken over the telephone by the probation officer

preparing the presentence report. Id. Fennell held that, although “[t]he Sentencing

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Guidelines do not set a high threshold of reliability, . . . more is required than . . .

[u]nsworn out-of-court statements made by an unobserved witness and unsupported

by other evidence.” Id. at 813-14.

Here, on the other hand, although Norma Leib’s statement that Mr. Leib shot

into the floor was unsworn, it was observed by the three responding police officers

and by the affiant officer who reviewed the body camera audio and video recording.

Moreover, as previously discussed, the totality of the circumstances presented here

corroborated Norma Leib’s statement that Mr. Leib shot into the floor. Fennell, then,

is distinguishable. See Martinez, 824 F.3d at 1262 (distinguishing Fennell on a

similar basis); United States v. Caiba-Antele, 705 F.3d 1162, 1166 (10th Cir. 2012)

(same); Cook, 550 F.3d at 1296–97 (same).

The district court, therefore, did not err in relying in part on Norma Leib’s

statement that her son shot into the floor of his bedroom to apply U.S.S.G.

§ 2K2.1(b)(6)(B)’s four-offense-level enhancement.

IV. CONCLUSION

Because there was sufficient information for the sentencing court to find, by a

preponderance of the evidence, that Mr. Leib committed the New Mexico felony of

willfully shooting at a dwelling, the court did not clearly err in applying U.S.S.G.

§ 2K2.1(b)(6)(B)’s four-offense-level enhancement. We, therefore, AFFIRM

Mr. Leib’s sentence.