United States v. Lor

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 21, 2025
• Docket: 24-1172
• Status: Unpublished

Opinion

Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 21, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-1172 (D.C. No. 1:23-CR-00348-NYW-1) KONG MENG LOR, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, MURPHY, and EID, Circuit Judges. _________________________________

I. INTRODUCTION

Kong Meng Lor pleaded guilty to one count of illegally possessing

ammunition as a felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district court

increased Lor’s offense level by four pursuant to U.S.S.G. § 2K2.1(b)(6)(B) when

deciding his Guidelines sentencing range. On appeal, Lor challenges the application

of § 2K2.1(b)(6)(B) by arguing the district court based its decision upon a clearly

erroneous factual finding. The district court did not clearly err in concluding Lor

illegally possessed the ammunition in connection with a Colorado car-theft felony

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 2

offense. Therefore, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742, this court affirms the district court’s sentence.

II. BACKGROUND

Lor was caught driving a stolen 1995 Honda Civic. He was arrested at the

scene. After waiving his Miranda rights, Lor admitted he knew the Civic was stolen.

He also indicated he was carrying a gun. A search of his person revealed Lor had a

black 9mm semi-automatic handgun with a loaded magazine and a separate loaded

magazine attached to a holster. Because he had prior felony convictions, Lor was

indicted on a single count of unlawfully possessing ammunition in violation of

§ 922(g)(1). He pleaded guilty without a plea agreement.

The Presentence Investigation Report (“PSR”) concluded Lor’s offense level

should be increased by four pursuant to § 2K2.1(b)(6)(B). The PSR reasoned the

enhancement should apply because Lor possessed the ammunition in connection with

his arrest for driving the stolen 1995 Civic. Lor objected to the PSR, identifying

Colorado’s aggravated motor vehicle theft as the relevant criminal statute. See Colo.

Rev. Stat. § 18-4-409. Instead of denying he was guilty of motor vehicle theft, Lor

argued the government failed to meet its burden of establishing by a preponderance

of the evidence that his offense was a felony. In particular, he argued his theft of the

Civic amounted to a felony under § 18-4-409 only if the vehicle was worth at least

$2000 but that the government had presented no evidence establishing the value of

the vehicle.

2 Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 3

At the sentencing hearing, the district court considered the PSR, objections to

the PSR, documents attached thereto, and the parties’ arguments. The district court

concluded the government had indeed established, by a preponderance of the

evidence, that Lor possessed ammunition in connection with another felony offense.

See Colo. Rev. Stat. § 18-4-409(4)(b). Underlying this conclusion was the district

court’s finding that the value of the 1995 Civic exceeded $2000. Applying the four-

level enhancement in accordance with § 2K2.1(b)(6)(B), the district court determined

Lor’s advisory Guidelines range was 46 to 57 months. Ultimately, Lor was sentenced

to serve a 40-month term of imprisonment, which reflected a downward variance.

III. DISCUSSION

“A challenge to the application of a sentencing enhancement tests the

procedural reasonableness of a sentence, which requires, among other things, a

properly calculated Guidelines range.” United States v. Mollner, 643 F.3d 713, 714

(10th Cir. 2011) (quotation omitted). “When evaluating the district court’s

interpretation and application of the Sentencing Guidelines, we review legal

questions de novo and factual findings for clear error, giving due deference to the

district court’s application of the guidelines to the facts.” United States v. Zamora, 97

F.4th 1202, 1207-08 (10th Cir. 2024) (quotation omitted).

Lor challenges the district court’s application of the offense level enhancement

set out in § 2K2.1(b)(6)(B). Section 2K2.1(b)(6)(B) instructs the sentencing court to

increase a defendant’s offense level by four if the defendant “used or possessed any

firearm or ammunition in connection with another felony offense.” The district court

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applied the enhancement, finding Lor possessed ammunition in connection with

felony aggravated motor vehicle theft under Colorado law. See Colo. Rev. Stat.

§ 18-4-409 (2022).1 The relevant provision of the Colorado statute states that a

person commits felony aggravated motor vehicle theft if “the value of the motor

vehicle or motor vehicles involved is two thousand dollars or more.” Id.

§ 18-4-409(4)(b). In contrast, if the value of the vehicle involved is less than $2000,

the offense is considered a misdemeanor. See id. § 18-4-409(4)(c).

Lor raises a single issue on appeal. He argues the government failed to satisfy

its burden of establishing the value of the stolen vehicle was $2000 or more. He

claims the district court’s finding to the contrary was therefore clearly erroneous.

“To constitute clear error, we must be convinced that the sentencing court’s

finding is simply not plausible or permissible in light of the entire record on appeal,

remembering that we are not free to substitute our judgment for that of the district

judge.” United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quotation

omitted).

1 After Lor’s offense, but before the sentencing hearing, the Colorado General Assembly amended the aggravated motor vehicle theft statute. Compare Colo. Rev. Stat. § 18-4-409(4)(b) (2022) (defining as a class six felony, the theft of a vehicle the value of which is two thousand dollars or more but less than twenty thousand dollars), with id. § 18-4-409(4) (2023) (defining as a class five felony, the theft of a vehicle, regardless of its value). For the purposes of § 2K2.1(b)(6)(B), the relevant iteration of the felony statute is the one in effect at the time the offense was committed. See United States v. Whitehead, 425 F.3d 870, 871-72 (10th Cir. 2005); see also United States v. Alibegic, 34 F.4th 1122, 1123 (8th Cir. 2022). As did the district court, we focus on the version of the statute in effect at the time of the offense. 4 Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 5

The parties argue at length about what evidence the district court should or

should not have considered.2 It is undisputed, however, that the Kelley Blue Book

Pricing Report (“Pricing Report”) is a relevant piece of evidence because it provides

a record of “the sale price of other similar property.” People v. Thornton, 251 P.3d

1147, 1149-51 (Colo. App. 2010); see Colo. Rev. Stat. § 18-4-414(2). The Pricing

Report is sufficient evidence to establish the district court did not clearly err.

The Pricing Report was attached to Lor’s written objections to the PSR. A law

enforcement officer who interviewed the car-theft victim obtained the Pricing Report

by inputting the vehicle’s information into the pricing tool available on the Kelley

Blue Book website. The Pricing Report is composed of two main parts. The first part

reveals the valuation itself. It assesses the value of a 1995 Honda Civic as $1939 if

sold to a “[p]rivate [p]arty,” with 38.7% deviation spanning either direction, yielding

a range of $1188 to $2689. The second part lists the configured options which were

considered in estimating the value of the vehicle. This part lists “pre-selected

options” which are considered “typical equipment” for a vehicle given its year, make,

and model. It also indicates, with a check mark, any of the options added by the user.

Pre-selected options include, but are not limited to, engine specifications and type of

2 To support its position that the 1995 Civic was worth at least $2000, the government filed, among others, four Facebook Marketplace listings and an incident report involving the theft of a 1996 Honda Civic Hatchback in which the spouse of the car-theft victim estimated that different car’s value. Although the parties dispute the relevance and evidentiary weight of these exhibits, there is no need to address them because the Kelley Blue Book is sufficient to resolve the issue on appeal. 5 Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 6

steering. Check marks on the Pricing Report indicate the vehicle’s black color and

automatic transmission were added by the officer.

A. Valuation

Lor argues the Pricing Report affirmatively establishes the district court

clearly erred in its factual finding. He emphasizes how both the median value and a

preponderance of the values within the valuation range fall below the $2000

threshold.3 The government responds by claiming the median value is not dispositive

evidence of the vehicle’s value. The government instead suggests the range of values

provided in the Pricing Report represents the “numerous values” for a 1995 Honda

Civic.

Under Colorado law, the value of a stolen property “may be established

through the sale price of other similar property.” Colo. Rev. Stat. § 18-4-414(2). The

Colorado Court of Appeals has held that a Pricing Report represents a “market

report” which “indicates the sale price of other similar property.” Thornton, 251 P.3d

at 1149-50. The contents of the Pricing Report suggest Kelley Blue Book considers

as similar those vehicles with the same year, make, model, approximate mileage, and

options. Vehicles which share these attributes, however, may not be identical nor

valued the same. For example, the vehicle’s accident history or cosmetic features

3 Here, by referencing a preponderance of the values, Lor alludes to the fact that more than half of the values in the Pricing Report’s valuation range fall below the $2000 threshold. Indeed, with a median value of $1939 and 38.7% deviation spanning in either direction, approximately 54% of the values in the range are below $2000. 6 Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 7

may affect its valuation. The Pricing Report reflects an accumulation of sale prices of

comparable, but not identical, vehicles. Consequently, no one value within the value

range is likely to be dispositive; rather, the valuation of any specific vehicle is more

likely to be “based thereon.” Id. at 1150.

Two aspects of the Pricing Report support this understanding. First, the Pricing

Report presents the vehicle’s estimated value not as a stand-alone determination, but

as the median of the “estimated range of the [vehicle’s] fair market value.” People v.

Burgess, No. 24CA0123, 2024 WL 4850491, at *1 (Colo. App. Nov. 21, 2024)

(unpublished). Because the range itself is an estimate based on sale prices of similar

vehicles, price points within the range are presumably relevant, but not

determinative. Second, the record indicates Kelley Blue Book estimates the value of

any one vehicle based, at least in part, on “pre-selected options” which, in turn, are

based on equipment that is “typical” of similar cars. Neither party argues that the

Kelley Blue Book pricing tool has the capacity to consider every single option or

attribute on a vehicle, even though such options and attributes are likely to affect its

valuation. See id. at *1, 3 (affirming the trial court’s finding, based on the owner’s

testimony, that the vehicle’s value would be at the “high end of the estimate” because

the car was purchased new and cared for).

Thus, the Pricing Report is best understood as evidence which provides a

range of reasonable values of the vehicle based on certain factors. The ultimate

determination of the vehicle’s value should be based on how a factfinder weighs the

7 Appellate Case: 24-1172 Document: 43 Date Filed: 02/21/2025 Page: 8

Pricing Report as evidence. See Thornton, 251 P.3d at 1150 (citing Beaudoin v.

People, 627 P.2d 739, 741 (Colo. 1981) (en banc)).

B. Configured Options

Lor maintains the Pricing Report shows the car’s value does not exceed $2000

because the $1939 valuation represents an overestimation. He argues the $1939 is an

overestimation because the officer who obtained the Pricing Report did not enter the

vehicle’s exterior damage into the Kelley Blue Book pricing tool. Lor cites to the

record which suggests the vehicle had both a dent in the front on the passenger’s side

as well as damage to the headlight on the passenger’s side. The government concedes

the exterior damage was not reflected in the valuation. It argues, however, that the

car’s mechanical condition was also omitted from the assessment. The car-theft

victim mentioned to the officer how her vehicle was “mechanically very well taken

care of and runs without any mechanical issues.” Lor, on the other hand, argues the

officer did, in fact, input the vehicle’s mechanical condition into the pricing tool. He

cites to the part of the record in which the officer suggests the information he entered

into the pricing tool was based on statements from the car-theft victim.

There are two parts of the record which most directly speak to how the Pricing

Report was generated: an incident report from the officer and the Pricing Report

itself. The incident report stated, in relevant part, as follows:

[The victim] advised that her vehicle was mechanically very well taken care of and runs without any mechanical issues. Based on this information[,] the vehicle was entered into Kelly [sic] Blue Book with the vehicle’s specific VIN number and milage [sic].

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From these statements, it appears the officer entered the vehicle’s VIN number and

mileage into the Kelley Blue Book pricing tool while leaving out its exterior damage.

The statements, however, do not establish whether the officer input the mechanical

condition of the vehicle. This is because it is unclear how the officer entered the

vehicle into the pricing tool “[b]ased on” the information provided by the car-theft

victim. This uncertainty is not clarified by the second part of the Pricing Report. That

part is silent on whether it reflects the mechanical condition or the exterior damage to

the vehicle. On its face, the report suggests the only options added to the pricing tool

were the exterior color and the transmission of the 1995 Civic. Thus, the district

court was within its discretion to conclude the Pricing Report did not reflect

circumstances argued by either party.

C. The District Court’s Valuation

The district court was required to determine the value of the 1995 Civic based

on the record which was unclear as to whether the car’s mechanical condition or

exterior damage was included in the Pricing Report. The district court could thus

reasonably conclude that good mechanical condition of a vehicle would have a

positive impact on its valuation. It would have been equally reasonable to conclude

that good mechanical condition would be far more important than exterior damage to

a purchaser of an almost thirty-year-old 1995 Civic sedan. It follows that the district

court could reasonably conclude, on balance, that if both the Civic’s exterior

cosmetic damage and sound mechanical condition were factored in, the value of the

car would be more than $61 higher than the median value set out in the Pricing

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Report. The district court’s finding that the value of the 1995 Civic exceeds $2000 is

neither implausible nor impermissible given the record on appeal.4 That finding

therefore does not rise to the level of clear error. See Cook, 550 F.3d at 1295.

IV. CONCLUSION

Lor has not shown that the district court clearly erred when it found that the

value of the vehicle was $2000 or more. We therefore affirm the district court’s

sentence. Lor’s pending motion to expedite is denied as moot.

Entered for the Court

Michael R. Murphy Circuit Judge

4 To seek this enhancement, the government needed only to establish that the value of the vehicle was at least $2000. See Colo. Rev. Stat. § 18-4-409(4)(b) (2022). The sentencing court, however, found that the government had “proffered sufficient evidence [to establish] that the value of the car exceeds $2000 by a preponderance of the evidence.” 10