United States v. Maxey-Velasquez

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 8, 2024
• Docket: 22-2138
• Status: Unpublished

Opinion

Appellate Case: 22-2138 Document: 010111028110 Date Filed: 04/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-2138 v. (D.C. No. 1:21-CR-00750-WJ-1) (D. N.M.) NICHOLAS A. MAXEY-VELASQUEZ,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Nicholas Maxey-Velasquez pleaded guilty to possessing a firearm and

ammunition as a convicted felon, and aiding and abetting that offense, in violation of

18 U.S.C. §§ 922(g)(1) and 2. He appeals the district court’s application of two

sentencing enhancements: (1) U.S.S.G. § 2K2.1(b)(6)(B), which permits a four-level

enhancement for unlawful possession of a firearm when the firearm was used in

connection with another offense, and (2) U.S.S.G. § 3E1.1(b), which permits a two-

level downward departure for acceptance of responsibility. Mr. Maxey-Velasquez

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-2138 Document: 010111028110 Date Filed: 04/08/2024 Page: 2

argues that the district court erred in applying the enhancement and failing to apply

the departure.

We affirm the district court. The district court’s conclusion that Mr. Maxey-

Velasquez possessed the firearm in connection with another felony was not clearly

erroneous, and the district court acted within its discretion in considering post-plea

behavior to determine whether Mr. Maxey-Velasquez had accepted responsibility for

his offense.

I. Background

Mr. Maxey-Velasquez came to the New Mexico state police’s attention during

an investigation into the trafficking of stolen firearms. Police officers pulled him

over as he drove off his property. After they pulled him over, Mr. Maxey-Velasquez

informed the officers that he had a shotgun and handgun in his vehicle. Since Mr.

Maxey-Velasquez had previously pleaded guilty to a felony offense, he was

prohibited under 18 U.S.C. § 922(g)(1) from possessing the shotgun and handgun.

The officers then searched Mr. Maxey-Velasquez’s car and found multiple syringes

and bags containing less than a gram of cocaine and less than a gram of

methamphetamine. They also identified the trailer hitched to his vehicle as stolen.

Mr. Maxey-Velasquez admitted to stealing it and stated that he planned to sell it.

A federal grand jury indicted Mr. Maxey-Velasquez for possession of a

firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1), and aiding

and abetting that offense, in violation of 18 U.S.C. § 2. Mr. Maxey-Velasquez

pleaded guilty to these charges. He was not charged in connection with the drugs 2 Appellate Case: 22-2138 Document: 010111028110 Date Filed: 04/08/2024 Page: 3

found in his car. At the sentencing hearing, the district court reserved judgment on

whether U.S.S.G. § 2K2.1(b)(6)(B) applied. It adjourned without determining a

sentence and scheduled a subsequent sentencing hearing. After considering the

matter, the court published an order holding that the U.S.S.G. § 2K2.1(b)(6)(B)

enhancement applied, reasoning that Mr. Maxey-Velasquez’s illicit firearm

possession emboldened him to possess illegal drugs and a stolen trailer.

Between his two sentencing hearings, Mr. Maxey-Velasquez was subject to

another traffic stop. During a search of his car, police officers discovered suboxone

strips, hypodermic needles, and allegedly counterfeit United States currency. At the

second sentencing hearing, the district court concluded that while suboxone is a legal

substance, “the quantity of Suboxone that was found on the Defendant . . . is just not

consistent with legal prescription use.” Tr. at 31. The district court concluded that

possession of suboxone and drug paraphernalia was inconsistent with acceptance of

responsibility, and it denied Mr. Maxey-Velasquez’s motion for a two-level decrease

for acceptance of responsibility under U.S.S.G. § 2K2.1(b)(6)(B).

Mr. Maxey-Velasquez appeals the district court’s application of the four-level

enhancement for possessing the firearm in connection with another felony and its

denial of his motion for a two-level decrease for acceptance of responsibility.

Reviewing the former decision for clear error and the latter for abuse of discretion,

we affirm the district court.

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II. Analysis

A. Possession in Connection with Another Felony

1. Legal standards

The sentencing guideline for unlawful possession of a firearm enhances a

defendant’s offense level by four “[i]f the defendant . . . used or possessed any

firearm or ammunition in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge, intent, or reason to believe

that it would be used or possessed in connection with another felony offense.”

U.S.S.G. 2K2.1(b)(6)(B). “The government bears the burden of proving sentencing

enhancements by a preponderance of the evidence.” United States v. Orr, 567 F.3d

610, 614 (10th Cir. 2009). “[W]e review the application of § 2K2.1(b)(6)(B) in a

given case for clear error.” United States v. Anderson, 62 F.4th 1260, 1265 (10th Cir.

2023).

“[P]ossession of a firearm may facilitate an offense by emboldening the

possessor to commit the offense.” United States v. Justice, 679 F.3d 1251, 1255

(10th Cir. 2012). And while “[e]mboldenment is not always present when firearms

are near drugs,” we have held that:

when the defendant is out and about, with drugs on his person and a loaded firearm within easy reach, one can infer that the proximity of the weapon to the drugs is not coincidental and that the firearm “facilitated, or had the potential of facilitating,” the drug offense by emboldening the possessor.

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Id. at 1256. Possessing drugs does not automatically trigger the § 2K2.1(b)(6)(B)

enhancement, but the enhancement may apply as long as the sentencing judge makes

a factual finding that the gun possession “facilitated, or had the potential of

facilitating” “the drug offense.”

Consistent with that understanding, we have affirmed a district court’s

application of the enhancement to a defendant in possession of a stolen vehicle,

reasoning that the defendant “could have carried the gun to intimidate anyone who

sought to interfere with his possession of [a stolen] vehicle” as not clearly erroneous.

United States v. Sanchez, 22 F.4th 940, 942 (10th Cir. 2022) (emphasis added). In

United States v. Sanchez, we recognized that a defendant “[d]riving a stolen vehicle

. . . could very well have increased his concern that law enforcement, the rightful

owner, or another would recognize the vehicle was stolen.” Id. Therefore, the

district court could “infer that the loaded firearm emboldened Defendant to accept

this enhanced risk and maintain possession of the vehicle.” Id. Again, the

§ 2K2.1(b)(6)(B) enhancement did not apply merely because the possessor was

knowingly driving a stolen vehicle. Rather, the district court’s finding that

possession of a firearm facilitated possession of the stolen vehicle permitted the

application of the enhancement.

2. Application

The district court did not commit clear error when it applied the

§ 2K2.1(b)(6)(B) enhancement to Mr. Maxey-Velasquez’s offense. The district court

found that Mr. Maxey-Velasquez’s possession of a firearm facilitated two felonies:

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(1) possession of cocaine and methamphetamine, in violation of N.M. Stat. Ann.

1978 § 30-31-23 (prohibiting possession of any amount of a substance known to be

cocaine or methamphetamine); and (2) receipt of a stolen utility trailer in violation of

N.M. Stat. Ann. 1978 § 30-16-11 (prohibiting reception of stolen property valued

over five hundred dollars). Order at 3. We discuss each in turn.

a. Narcotics Possession

Here, the district court’s finding that possessing a weapon facilitated Mr.

Maxey-Velasquez’s possession of cocaine and methamphetamine was not clearly

erroneous. As a preliminary matter, the court had sufficient evidence to conclude

that Mr. Maxey-Velasquez possessed the prohibited substances: (1) testimony by one

of the arresting officers that a search of Mr. Maxey-Velasquez’s vehicle revealed the

forbidden substances and drug paraphernalia, and (2) Mr. Maxey-Velasquez was the

sole occupant of the vehicle at the time of the search. Order at 4-5. The district court

further relied on testimony by the police officer that, in his experience, “criminal

defendants routinely carry firearms to obtain and protect narcotics.” Order at 5. We

have concluded that district courts can infer from a defendant’s possession of drugs

and a firearm in easy reach that “the proximity of the weapon to the drugs is not

coincidental and that the firearm ‘facilitated, or had the potential of facilitating,’ the

drug offense by emboldening the possessor.” Justice, 679 at 1256. Under Justice,

therefore, the district court’s inference was reasonable.

Resisting this conclusion, Mr. Maxey-Velasquez offers two arguments for

reversing the district court. First, he argues that the government did not meet its

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burden to prove by a preponderance of the evidence that the allegedly prohibited

substances were, in fact, cocaine and methamphetamine. As Mr. Maxey-Velasquez

correctly notes, the arresting officer did not perform either a field test nor a

laboratory test on the substances found in Mr. Maxey-Velasquez’s car. The officer

instead relied on his training and experience to identify the substances as cocaine and

methamphetamine.

Our precedents do not require field or laboratory identification, and instead

permit the district court to rely on an officer’s training and experience to identify

controlled substances. See United States v. Sanchez DeFundora, 893 F.2d 1173,

1175 (10th Cir. 1990) (“The government need not introduce scientific evidence to

prove the identity of a substance.”). Indeed, lay testimony and circumstantial

evidence of “the physical appearance of the substance” is “relevant to determining

the identity of a substance.” Id. Accordingly, the district court’s reliance on the

arresting officer’s training and experience to identify controlled substances as

cocaine and methamphetamine was not inconsistent with our precedent, and its

finding that Mr. Maxey-Velasquez possessed cocaine and methamphetamine was not

clearly erroneous.

Second, Mr. Maxey-Velasquez argues that the district court “failed to

articulate specific facts to support that the firearm actually facilitated or had the

potential to facilitate narcotics possession.” Aplt. Br. at 17. We are unpersuaded for

two reasons. First, the district court relied on the New Mexico police officer’s

testimony that “in his experience, criminal defendants routinely carry firearms to

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obtain and protect narcotics.” Order at 5. And because the Federal Rules of

Evidence do not apply to sentencing hearings, see Fed. R. Evid. 1101(d)(3), the

district court could permissibly draw a propensity inference based on this evidence.

Second, under our precedents, a district court may infer from a defendant’s proximity

to both illegal narcotics and a firearm that “the proximity of the weapon to the drugs

[was] not coincidental and that the firearm ‘facilitated, or had the potential of

facilitating,’ the drug offense by emboldening the possessor.” Justice, 679 at 1256.

Accordingly, the district court’s reasoning was consistent with our precedent,

and its finding that Mr. Maxey-Velasquez’s possession of a firearm facilitated, or had

the potential to facilitate, his possession of narcotics was not clearly erroneous.

b. Receipt of a Stolen Trailer

For similar reasons, the district court’s finding that possessing a weapon

facilitated Mr. Maxey-Velasquez’s receipt of the stolen trailer was not clearly

erroneous. The district court found that Mr. Maxey Velasquez “was aware of the

substantial risk that law enforcement or the rightful owner of the trailer might

recognize it as stolen and confront” him, and that “[c]arrying a firearm had the

potential to embolden him to retain possession of the trailer.” Order at 5.

Yet, Mr. Maxey-Velasquez argues that the district court order should be

reversed. He contends that the district court’s conclusion relied on speculation rather

than specific facts tying Mr. Maxey-Velasquez’s firearms possession with his receipt

of the stolen trailer.

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We disagree. Contrary to Mr. Maxey-Velasquez’s contention, the district

court’s conclusion here was rooted in evidence, not guesswork. The guidelines

commentary directs courts to apply the § 2K2.1(b)(6)(B) enhancement “if the firearm

or ammunition facilitated, or had the potential of facilitating, another felony

offense.” U.S.S.G. 2K2.1 cmt. n.14(A) (emphasis added); see also Sanchez, 22 F.4th

at 942 (“All § 2K2.1(b)(6)(B) requires under our precedents is that Defendant’s

possession of the firearm had the potential to facilitate his possession of the stolen

vehicle.”). The U.S.S.G. § 2K2.1(b)(6)(B) enhancement may be applied based on a

firearm’s potential to facilitate another felony. Determining whether the possession

of a firearm could potentially facilitate another felony inherently involves a forward-

looking assessment of what could have occurred due to the firearm’s presence—a

reasoned judgment about possible outcomes based on the evidence available. But in

reaching that conclusion regarding the firearm’s potential to facilitate another felony,

the district courts must still analyze the evidence presented and establish how the

firearm’s presence, within the specific facts of the case, could contribute to the

criminal activity. The district court did that here.

Indeed, the district court’s factual findings support its conclusion that the

firearm could have facilitated the felony: (1) Mr. Maxey-Velasquez was aware of the

substantial risks that might occur if the trailer’s owner or law enforcement were to

confront him while he was in possession of the trailer, and (2) possessing the firearm

would have emboldened Mr. Maxey-Velasquez to confront these risks. Order at 5.

Neither of these findings was clearly erroneous. We have affirmed the application of

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the § 2K2.1(b)(6)(B) enhancement under analogous circumstances and see no reason

to reach the opposite conclusion here. Sanchez, 22 F.4th at 942 (finding no abuse of

discretion in application of § 2K2.1(b)(6)(B) enhancement appropriate where

defendant possessed a firearm while knowingly driving a stolen car).

In sum, the district court did not clearly err in applying the § 2K2.1(b)(6)(B)

enhancement for use of a firearm in connection with drug possession and receipt of

stolen goods.

B. Acceptance of Responsibility

1. Legal standards and background

A court should decrease a defendant’s offense level by two if “the defendant

clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G.

§ 3E1.1(b). If the defendant qualifies for a reduction under this provision, a district

court may reduce his offense level by another level if: (1) the offense level was above

16 prior to that operation, and (2) the government submits a motion “stating that the

defendant has assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” Id. The defendant

bears the burden of proving that he qualified for the sentencing reduction. United

States v. Meyers, 95 F.3d 1475, 1486 (10th Cir. 1996).

The guidelines commentary for this provision provides a non-exhaustive list of

factors that a court may consider when determining whether a defendant has accepted

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responsibility: (1) admitting to the conduct, (2) terminating or withdrawing from

criminal conduct or associations, (3) voluntary payment of restitution, (4) voluntary

surrender to authorities shortly after commission of the offense, (5) voluntary

assistance to authorities in the recovery of the fruits and instrumentalities of the

offense, (6) voluntary resignation from the office or position held during commission

of the offense, (7) post-offense rehabilitative efforts, and (8) timeliness of the

defendant’s conduct in manifesting the acceptance of responsibility.

U.S.S.G. § 3E1.1 cmt. n.1 (U.S. Sentencing Comm’n 2004). Because “[t]he

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility,” Note 5 counsels that “the determination of the sentencing judge is

entitled to great deference on review.” Id., cmt. n. 5; see also United States v.

Nevarez, 55 F.4th 1261, 1266 (10th Cir. 2022) (citing United States v. Wooten, 377

F.3d 1134, 1145 (10th Cir. 2004) (quoting U.S.S.G. § 3E1.1 cmt. n.5)).

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

abuse of discretion.” Anderson, 62 F.4th at 1265. “In applying that standard, we

review questions of law de novo and factual findings for clear error, giving due

deference to the district court’s application of the Guidelines to the facts.” Id.

(internal quotation marks omitted).

The district court held two hearings to determine Mr. Maxey-Velasquez’s

sentence. As noted above, the court reserved judgment on the applicability of the

§ 2K2.1(b)(6)(B) enhancement at the first hearing, stating that it would issue a

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written opinion on the matter subsequently. In the interim, police officers conducted

a traffic stop on Mr. Maxey-Velasquez. During a subsequent search of his car, police

officers discovered suboxone strips, hypodermic needles, and allegedly counterfeit

United States currency.

The district court considered this new development when it reconvened for the

second sentencing hearing. Although suboxone is a legal substance, the district court

found that “the quantity of Suboxone that was found” on Mr. Maxey-Velasquez was

“not consistent with legal prescription use.” Tr. at 31. The district court therefore

concluded that possession of suboxone and drug paraphernalia was inconsistent with

acceptance of responsibility, and it denied Mr. Maxey-Velasquez’s motion for a

decrease under § 3E1.1(a).

The issue before this court is whether the district court abused its discretion

when it denied Mr. Maxey-Velasquez’s § 3E1.1(a) motion upon consideration of

felonies unrelated to the specific charge at sentencing. Does “acceptance of

responsibility” mean a defendant accepts responsibility for his specific crime, or for

his general criminal conduct? The sentencing guidelines commentary instructs courts

to consider a defendant’s “voluntary termination or withdrawal from criminal

conduct or associations”—but it does not specify whether the criminal conduct or

associations must relate to the specific crime charged. U.S.S.G. § 3E1.1 cmt. n.1(B).

But in United States v. Prince, 204 F.3d 1021, 1023 (10th Cir. 2000), “we

joined the majority of circuits and held that the Guidelines do not prohibit a

sentencing court from considering, in its discretion, criminal conduct unrelated to the

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offense of conviction in determining whether a defendant qualifies for an adjustment

for acceptance of responsibility under § 3E1.1.” United States v. Finnesy, 953 F.3d

675, 701 (10th Cir. 2020) (cleaned up).

Under our precedents, “[e]ven when a defendant truthfully admits his role in

the offense of conviction, a district court may properly deny the § 3E1.1 decrease if

the court concludes the defendant engaged in conduct that is inconsistent with

acceptance of responsibility.” United States v. Patron-Montano, 223 F.3d 1184,

1189 (10th Cir. 2000). Thus, courts may consider both the defendant’s admission of

wrongdoing in the offense of conviction and his broader conduct when determining if

he has accepted responsibility for his offense. Here, the district court did not abuse

its discretion to consider the Mr. Maxey-Velasquez’s subsequent possession of

narcotics, and its conclusion that such possession was inconsistent with acceptance of

responsibility was not clearly erroneous.

Urging us to reverse the district court, Mr. Maxey-Velasquez asks us to adopt

the Sixth Circuit’s jurisprudence on the matter. The Sixth Circuit restricts

“acceptance of responsibility” to “conduct which is related to the underlying

offense.” United States v. Morrison, 983 F.2d 730, 735 (6th Cir. 1993). But as

stated above, this interpretation is foreclosed by our precedent. We have held that

the Guidelines do “not . . . qualify [the voluntary termination or withdrawal from

criminal conduct or associations] factor to permit consideration of only criminal

conduct related to or of the same nature as the offense of conviction.” Finnesy, 953

F.3d at 701 (citing Prince, 204 F.3d at 1023).

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In sum, the district court did not abuse its discretion in considering conduct

unrelated to the underlying offense of conviction. We therefore affirm the district

court’s decision to deny Mr. Maxey-Velasquez’s § 3E1.1(a) motion.

III. Conclusion

We affirm the district court’s application of the § 2K2.1(b)(6)(B) enhancement

and its denial of Mr. Maxey-Velasquez’s motion for a § 3E1.1(a) decrease.

Entered for the Court

Timothy M. Tymkovich Circuit Judge