United States v. Moss

Court of Appeals for the Tenth Circuit·Decided July 20, 2026·No. 25-8040·Unpublished

Opinion

Appellate Case: 25-8040 Document: 43-1 Date Filed: 07/20/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 20, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-8040 (D.C. No. 1:24-CR-00165-SWS-1) KENDALL JOSEPH MOSS III, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, KELLY, and EID, Circuit Judges. _______________________________________

This appeal involves an enhancement to the sentencing range under

the guidelines. If a district court applies an enhancement based on some

factors that are impermissible, does that error undermine confidence in the

outcome if the court also relied on permissible factors that would

independently justify the enhancement? We answer no.

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 25-8040 Document: 43-1 Date Filed: 07/20/2026 Page: 2

The defendant, Mr. Kendall Moss III, was convicted of sexually

abusing a ten-year old girl. 18 U.S.C. § 2244(a)(5). They had met in a

group home: The girl was placed in the group home, and Mr. Moss was

employed there. After meeting the girl in the group home, Mr. Moss took

her in as a foster child. While the two lived together, Mr. Foster rubbed the

girl’s vagina through her clothes, leading to the conviction for sexual

abuse.

To decide the sentence, the district court needed to apply the

sentencing guidelines, 18 U.S.C. § 3553(a)(4). Under these guidelines, the

court could enhance the advisory range if the victim was considered

vulnerable. U.S.S.G. § 3A1.1(b)(1). The probation officer recommended

application of the enhancement for a vulnerable victim, and the court

adopted the recommendation without an objection. With the enhancement,

the guideline range for imprisonment increased to 63–78 months. The court

varied downward, imposing a sentence of 57 months’ imprisonment and 15

years of supervised release.

Mr. Moss challenges the enhancement, arguing that the district court

erred by considering some factors that had already been incorporated into

the guideline calculation. See U.S.S.G. § 3A1.1, cmt. n.2 (stating that the

enhancement doesn’t apply if the factor making a victim vulnerable is

already incorporated in the offense guideline). This argument triggers a

question of preservation: Mr. Moss hadn’t made this argument in district

2 Appellate Case: 25-8040 Document: 43-1 Date Filed: 07/20/2026 Page: 3

court, and he urges us to apply the plain-error standard; the government

counters that the plain-error standard doesn’t apply because the issue was

deliberately waived. We assume for the sake of argument that Mr. Moss

didn’t waive the issue. Absent a waiver, however, an error would be plain

only if Mr. Moss had shown an effect on his substantial rights. See United

States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016). For this

showing, Mr. Moss must establish a reasonable probability that the district

court would have declined to apply the enhancement absent the

impermissible factors. See United States v. Booker, 63 F.4th 1254, 1262

(10th Cir. 2023) (stating that an error affects the defendant’s substantial

rights only if a reasonable probability exists that the result would have

been different absent the error).

In recommending the enhancement for a vulnerable victim, the

probation office’s report considered two factors (age and custody status)

that had already been incorporated into the guideline calculation, and the

district court adopted that report. For example, the probation report

pointed out that the victim had been only ten years old during the abuse.

But even without the enhancement, the court had increased the offense

level because the victim was under twelve. U.S.S.G. § 2A3.4(b)(1). In

addition, the probation report relied in part on Mr. Moss’s custody over the

girl as her foster parent despite a separate two-level enhancement based on

the defendant’s custodial status. U.S.S.G. § 2A3.4(b)(3).

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But the district court also relied on

• a size difference between Mr. Moss and the girl and

• an unstable home life.

These factors were permissible. See United States v. Checora, 175 F.3d

782, 789 (10th Cir. 1999) (size difference); United States v. Sumka,

81 F.4th 1153, 1159 (10th Cir. 2023) (unstable home life). Mr. Moss

disagrees, arguing that (1) the size difference and unstable home life were

simply proxies for his control and the girl’s age and (2) the district court’s

explanation shows heavy reliance on the impermissible factors. We

disagree.

Mr. Moss points out that (1) the girl was small because she was only

ten and (2) her age elsewhere contributed to the offense level. But the

district court didn’t rely solely on the girl’s size; instead, the court relied

on the difference between her size and Mr. Moss’s. Mr. Moss was 6 feet,

3 inches and weighed 340 pounds. The probation report pointed out that a

much smaller person, like the girl, was particularly vulnerable given

Mr. Moss’s size. This rationale didn’t turn on factors that had otherwise

affected the guideline calculation. See United States v. Tissnolthtos,

115 F.3d 759, 761–62 (10th Cir. 1997). So the court could consider the

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difference in size. See Checora, 175 F.3d at 789 (stating that the district

court could consider a size disparity). 1

In addition, Mr. Moss faults the district court for relying on the girl’s

unstable home life, arguing that (1) it had led to Mr. Moss’s role as a

foster parent and (2) that role had already triggered an increase of two

levels. But the district court didn’t just rely on the girl’s unstable home

life because it led to Mr. Moss’s role as a foster parent; the court also

relied on Mr. Moss’s knowledge of the girl’s difficulties at home and her

emotional problems. The court could reasonably infer that this knowledge

of the girl’s troubled past had intensified Mr. Moss’s power, and this

inference didn’t turn on factors that had elsewhere contributed to the

offense level.

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