United States v. Nichols

Opinion

Appellate Case: 20-6198 Document: 010110686424 Date Filed: 05/18/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-6198 (D.C. No. 5:20-CR-00006-F-1) JADE CHRISTIAN NICHOLS, (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER _________________________________

Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________

Appellant’s Motion to Reissue the Judgment is GRANTED. The Order and

Judgment issued December 14, 2021 is VACATED. The Clerk shall reissue the Order

and Judgment in its original form as of today’s date.

Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 20-6198 Document: 010110686424 Date Filed: 05/18/2022 Page: 2 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 18, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

v. No. 20-6198 (D.C. No. 5:20-CR-00006-F-1) JADE CHRISTIAN NICHOLS, (W.D. Okla.)

ORDER AND JUDGMENT * _________________________________

Before HOLMES, PHILLIPS, and EID, Circuit Judges. _________________________________

A jury convicted Jade Nichols of possession of a firearm and ammunition by a

felon, in violation of 18 U.S.C. § 922(g), and the district court sentenced him to 120

months’ imprisonment. Nichols appeals, arguing the evidence was insufficient to

convict him and the court’s sentence was substantively and procedurally

unreasonable. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 20-6198 Document: 010110686424 Date Filed: 05/18/2022 Page: 3

BACKGROUND

In late October 2019, Nichols confronted two of his sisters at a drive-up fried

chicken restaurant in El Reno, Oklahoma called Tooters. Bobby Stevenson, a

customer at the restaurant, witnessed the confrontation, during which he saw Nichols

pull out a small .22 caliber pistol. Stevenson testified he saw Nichols leave on a blue

bicycle after hearing sirens. J.N., Nichols’s minor sister, was working at Tooters at

the time. She testified Nichols came into the restaurant wearing a backpack, which

he carried to her older sister’s car outside the restaurant and placed on the trunk. She

also testified she saw Nichols pull out a gun, which scared her, so she ran back into

the restaurant storage area and cried.

Police arrived at Tooters and investigated. They searched the backpack

Nichols left on his sister’s car and found ammunition inside. They eventually found

Nichols walking through a nearby neighborhood. Nichols admitted being at Tooters

but denied having a firearm. Using a search dog, officers found a .22 caliber pistol

next to a fence abutting a public alleyway near where they found Nichols. They also

found a clean hat that looked as though it had not been outside for very long. J.N.

and her sister told police Nichols was wearing a hat during the encounter.

At trial, the government presented evidence from J.N., Stevenson, and several

investigating officers. A jury convicted Nichols of illegal possession of a firearm

and ammunition by a felon.

The probation office prepared a presentence investigation report (PSR). It

noted Nichols’s criminal history included two prior Oklahoma felony convictions for

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Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute, in

violation of Okla. Stat. tit. 63, § 2-401(A)(1). Applying U.S. Sentencing Guidelines

Manual (U.S.S.G.) § 2K2.1(a)(2) (U.S. Sent’g Comm’n 2018), the PSR determined

Nichols’s base offense level should be increased to 24 because he had two prior state

drug convictions that were controlled substance offenses under U.S.S.G. § 4B1.2. 1

The PSR also applied a four-level enhancement, per U.S.S.G. 2K2.1(b)(6)(B),

because the crime involved the felonious pointing of the pistol at J.N. in violation of

Oklahoma law. The PSR therefore calculated the total offense level as 28.

Based on Nichols’s criminal history category of IV, the advisory guideline

range was 140 to 175 months. But because the statutory maximum term of

imprisonment was 10 years, see 18 U.S.C. §924(a)(2), the guideline term of

imprisonment was 120 months, see U.S.S.G § 5G1.1(a). Overruling Nichols’s

objections to the PSR, the court sentenced him to 120 months’ imprisonment.

DISCUSSION

Nichols raises three arguments on appeal. First, he argues the evidence was

insufficient to support his conviction. Second, he argues his sentence was

procedurally unreasonable, specifically challenging the treatment of his prior state

drug offenses as controlled substance offenses under U.S.S.G. § 4B1.2 so as to

enhance his base offense level under U.S.S.G. § 2K2.1(a)(2) and the imposition of a

1 Section 2K2.1(a)(2) provides for a base offense level of 24, “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence of a controlled substance offense.” 3 Appellate Case: 20-6198 Document: 010110686424 Date Filed: 05/18/2022 Page: 5

four-level enhancement for use of a firearm in connection with a felony offense under

U.S.S.G. § 2K2.1(b)(6)(B). Third, he argues his sentence was substantively

unreasonable. We consider each argument in turn.

1. Sufficiency of the Evidence

“We review legal sufficiency of evidence de novo, viewing the evidence in the

light most favorable to the government and drawing all reasonable inferences from

the evidence in favor of the verdict.” United States v. Kaspereit, 994 F.3d

1202, 1207 (10th Cir. 2021). “Acquittal for insufficient evidence is proper only

when no reasonable jury could find the defendant guilty beyond a reasonable doubt.”

United States v. Wagner, 951 F.3d 1232, 1256 (10th Cir. 2020) (internal quotation

marks omitted). To secure a conviction under 18 U.S.C. § 922(g), the United States

bore the burden to prove, inter alia, that Nichols “knowingly possessed the firearm as

charged in the Indictment or knowingly possessed ammunition as charged in the

Indictment.” R. Vol. 1 at 130; see also United States v. Taylor, 113 F.3d 1136, 1144

(10th Cir. 1997).

In arguing the evidence was insufficient to support his conviction, Nichols

focuses on the moment law enforcement first contacted him, when he was not

carrying a firearm, and the lack of forensic or DNA evidence linking him to the pistol

police found near where they contacted him. He also highlights the lack of testimony

from other individuals at the scene, the lack of surveillance footage despite the

presence of cameras at Tooters, and the lack of physical evidence in the backpack

linking it to him. But the evidence at trial included the eyewitness testimony of J.N.,

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who stated Nichols “pulled out his gun,” R. Vol. 4 at 38, and Stevenson, who stated

Nichols “pulled a small gun out” of his pocket, id. at 17. Stevenson went on to

testify that the gun was small and black, and that based upon his personal knowledge

of firearms, looked like a .22 caliber. This eyewitness testimony, construed in the

light most favorable to the government, sufficiently links Nichols to the small, black,

.22 caliber pistol police found a few blocks away from Tooters. Likewise, J.N.

testified Nichols put his backpack on the trunk of his sister’s car at Tooters, and

police testified they found both long and short .22 caliber ammunition in the

backpack. The evidence was therefore also sufficient for a reasonable jury to find

beyond a reasonable doubt Nichols knowingly possessed ammunition as charged.

2. Procedural Reasonableness

“When a party challenges a sentence for procedural reasonableness, our

standard of review is ordinarily abuse of discretion, under which we review de novo

the district court’s legal conclusions regarding the guidelines and review its factual

findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246

(10th Cir. 2012). “Factual findings can be found clearly erroneous if they have no

basis in the record, or if this court is left with the definite and firm conviction that a

mistake has been committed.” United States v. Orozco, 916 F.3d 919, 924

(10th Cir. 2019) (internal quotation marks and citations omitted).

We first reject Nichols’s argument that the definition of “controlled substance”

in U.S.S.G. § 4B1.2 is limited to the federal definition in the Controlled Substances

Act (CSA), and therefore his Oklahoma convictions did not qualify as predicate

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offenses to enhance his base offense level under U.S.S.G. § 2K2.1(a)(2). That

argument is foreclosed by our recent decision in United States v. Jones, 15 F.4th

1288, 1291–92 (10th Cir. 2021). In Jones, we held the reference to “controlled

substances” in U.S.S.G. § 4B1.2 is not limited to federally controlled substances

under the federal CSA, and, therefore, a prior conviction under Oklahoma law for

possession of a controlled dangerous substance is an appropriate predicate for

application of an enhanced base offense level. See id.

We also reject Nichols’s challenge to the district court’s application of a

four-level sentence enhancement. The district court applied the enhancement

because Nichols “used or possessed [the] firearm or ammunition in connection with

another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B). The court found the trial

testimony established Nichols committed the crime of feloniously pointing a firearm

in violation of Okla. Stat. tit. 21 § 1289.16, which makes it unlawful to point a

firearm “at any person . . . for the purpose of threatening . . . or with any malice or

for any purpose of injuring, either through physical injury or mental or emotional

intimidation or for purposes of whimsy, humor or prank, or in anger or

otherwise . . . .” Specifically, the court found the trial testimony established by a

preponderance of the evidence that Nichols pointed the gun at his sister. The court

made that finding considering all circumstances as they existed during the encounter,

and interpreted J.N.’s testimony that she “saw the end of the gun that the bullets

came out,” in light of those circumstances, as sufficiently indicative “that [Nichols]

did, in fact, point the weapon.” R. Vol. 3 at 30.

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Nichols argues the district court’s findings in this respect were clearly

erroneous, pointing to different portions of J.N.’s testimony and Stevenson’s

testimony that Nichols “just showed [the gun] to us and kept arguing with us.” Id. at

26. But, giving appropriate deference to the trial court’s credibility findings, we

cannot conclude it clearly erred in applying U.S.S.G. § 2K2.1(b)(6)(B). The district

court’s findings have record support in the testimony of J.N. and Stevenson.

3. Substantive Reasonableness

“We review the substantive reasonableness of a sentence for abuse of

discretion.” Kaspereit, 994 F.3d at 1207. Under this standard of review, “we will

give substantial deference to the district court’s determination and overturn a

sentence as substantively unreasonable only if it is arbitrary, capricious, whimsical,

or manifestly unjust.” Id. “In this circuit, a sentence imposed within the properly

calculated advisory guideline range is entitled to a rebuttable presumption of

reasonableness on appeal.” United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th

Cir. 2011) (internal quotation marks and alteration omitted).

When announcing Nichols’s sentence, the district court remarked that his

conduct was “toward the more serious end” of the types of conduct resulting in a

§ 922(g) violation. R, Vol. 3 at 44. In attacking the substantive reasonableness of

his sentence, Nichols criticizes the district court’s remark, pointing to the small

caliber of the gun, the lack of a magazine, and the lack of physical injury in the

incident. He further argues the district court placed too much weight on his

assaultive conduct in jail, given its remark that it would not consider unadjudicated

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conduct, and also reemphasizes his personal history and characteristics, including a

difficult childhood. But these arguments are insufficient to rebut the presumption of

reasonableness of the guidelines sentence in this case. The district court accounted

for the factors Nichols highlights on appeal, considered the relevant factors under

§ 3553, and concluded the most compelling factor was the need for “incapacitation,

for the protection of the public.” Id. at 45. Nichols’s arguments do not overcome the

substantial deference we owe to that conclusion.

CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Gregory A. Phillips Circuit Judge