FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, Nos. 18-6223 and 18-6224 v. (D.C. Nos. 5:18-CR-00097-HE-1 LERAY EUGENE RICHARDS, a/k/a and 5:18-CR-00098-HE-1) Le'Ray Eugene Richards, a/k/a Cory (W.D. Oklahoma) Tremell Brown,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and CARSON, Circuit Judges. _________________________________
On July 3, 2018, LeRay Eugene Richards pleaded guilty to three counts of
being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C.
§ 922(g)(1). Mr. Richards’s Presentence Investigation Report (the “PSR”) computed
an advisory sentencing range of 77–96 months based on a total offense level of 21,
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. inclusive of a four-level enhancement for Mr. Richards’s use or possession of a
firearm in connection with another felony offense.
The district court held a sentencing hearing, at which the government
presented evidence on the factual basis for the four-level increase. After hearing
testimony and other evidence from the parties, the district court found by a
preponderance of the evidence and over Mr. Richards’s objection, that he used or
possessed a firearm in connection with an assault or domestic violence felony
offense. As a result, the district court adopted the PSR and sentenced Mr. Richards to
a guidelines-range, 94-month term of imprisonment.
On appeal, Mr. Richards asserts that the district court’s factual findings
supporting the four-level enhancement were clearly erroneous. He further argues that
his 94-month, within-guidelines sentence is substantively unreasonable. Exercising
jurisdiction under 28 U.S.C. § 1291, we reject both contentions and affirm his
sentence.
I. BACKGROUND
A. The Indictments
On April 17, 2018, a grand jury returned two separate indictments1 collectively
charging Mr. Richards with three violations of 18 U.S.C. § 922(g)(1). The
indictments emanated from two separate incidents, which we summarize below.
1 The two indictments initiated separate criminal cases, but the Western District of Oklahoma’s Probation and Pretrial Services office prepared a single PSR for Mr. Richards, and the district court convened a single sentencing hearing. The separate appeals of those sentences have been consolidated before this court. 2 The September 28, 2016, Incident
On September 28, 2016, Oklahoma City police responded to a report that
Mr. Richards had broken into the home of Kieaira Perry, his ex-girlfriend, and was in
possession of a firearm. Mr. Richards was observed exiting the home as officers
arrived, only to reenter the home for several seconds before reemerging, at which
point he was arrested. During a search of Mr. Richards incident to arrest, police
discovered fifty rounds of ammunition for a .22 long rifle, as well as a taser.
Ms. Perry permitted police to search her home, which led to the discovery of
Mr. Richards’s .22 long rifle caliber pistol under Ms. Perry’s couch. The firearm was
both magazine and chamber loaded, with the safety off and the hammer in the
“cocked” position. Ms. Perry’s PlayStation gaming console was missing and was
later discovered in the car Mr. Richards had driven to Ms. Perry’s home. The police
discovered a little more than half a gram of crack cocaine on Mr. Richards’s person
during a further search upon admission to the detention facility.
The October 27, 2017, Incident
On October 27, 2017, police responded to reports of a fight involving a firearm
at an apartment complex in Midwest City, Oklahoma. The complex’s security guards
told police they had asked Mr. Richards for identification as he entered the apartment
complex. Mr. Richards failed to produce identification, and instead tried to remove a
Following the parties’ citation convention, all cites to the sentencing transcript (“Tr.”) in this order refer to the transcript found in Volume III in the respective records on appeal. 3 firearm—again magazine and chamber loaded—from his clothing, at which point the
security guards wrestled him to the ground and removed the firearm from his reach.
B. The Sentencing Hearing
Because Mr. Richards raised a timely objection to the factual basis for his
four-level sentencing enhancement, the district court received evidence at the
sentencing hearing on the predicate felony conduct. The government called Sergeant
Jacob Papera, the police officer who interviewed Ms. Perry and her children
immediately after Mr. Richards was arrested on September 28, 2016. Sergeant Papera
testified that Ms. Perry related the following facts pertaining to the sentencing
enhancement: (1) she awoke to a loud banging sound to find her ex-boyfriend,
Mr. Richards, in her home; (2) the two began arguing, and Mr. Richards pointed a
“small, black, semi-automatic handgun” at her (Tr. at 8); and (3) her children
observed Mr. Richards point the firearm at her.
Sergeant Papera further testified that he interviewed Ms. Perry’s two
children—ages five and seven—one at a time and outside Ms. Perry’s presence. He
testified that the children told him they had been roused by the same loud sounds as
their mother, and when they left their bedroom to investigate, they “saw their mother
arguing with Mr. Richards and him pointing the gun at her.” Tr. at 9.
In rebuttal, Mr. Richards called Richard Reyna, a criminal investigator
employed by the Federal Public Defender’s Office. Mr. Reyna interviewed Ms. Perry
about the incident at the direction of Mr. Richards’s attorney. Mr. Reyna testified that
Ms. Perry told him, contrary to Sergeant Papera’s testimony, that her children had not
4 witnessed Mr. Richards point the firearm at her. But Mr. Reyna did not testify as to
the source of Ms. Perry’s belief that her children had not witnessed this event.
Mr. Reyna further admitted he did not interview Ms. Perry’s children and therefore
could not speak to what they had seen from their “point of view.” Tr. at 18–19.
Following Mr. Reyna’s testimony, Mr. Richards introduced furniture rental
agreements he executed in March of 2016 that reported his address to be the same as
Ms. Perry’s.
After the parties concluded their presentation of evidence, the government
urged the district court to find that Mr. Richards had committed burglary, relying on
the fact that Ms. Perry’s PlayStation was found in Mr. Richards’s car. The district
court declined to find that Mr. Richards had burglarized Ms. Perry’s home,
explaining that “[t]he evidence suggests that the defendant had stuff here and
obviously a past relationship with the victim, and so I’m not persuaded that this
constitutes technically a burglary, which, as counsel know, is a fairly specific sort of
breaking-and-entering circumstance.” Tr. at 23.
The district court instead concluded that “the government . . . established by a
preponderance of the evidence that the gun was used in connection with a—
essentially, an assault or domestic violence situation.” Tr. at 23. Having made that
finding, the district court adopted the PSR’s computation of a total offense level of
21, which, when combined with Mr. Richards’s criminal history category of VI,
produced an advisory Guidelines sentencing range of 77–96 months of imprisonment.
5 After weighing the statutory factors, the district court sentenced Mr. Richards to a
94-month term of imprisonment in each case, to run concurrently.
II. ANALYSIS
A. The § 2K2.1(b)(6)(B) Offense Level Enhancement
Under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”), a defendant’s total offense level is increased by four
levels if he “used or possessed any firearm or ammunition in connection with another
felony offense.” Application note 14 to U.S.S.G. § 2K2.1 clarifies that this
sentencing enhancement applies “if the firearm or ammunition facilitated . . . another
felony offense.” U.S.S.G. § 2K2.1, cmt. n.14(A).
We have explained that § 2K2.1(b)(6)(B) “contains three elements: the
defendant must (1) use or possess a firearm (2) in connection with (3) another felony
offense.” United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir. 2011). As with all
sentencing enhancements, the government bears the burden of proving these elements
by a preponderance of the evidence. See United States v. Orr, 567 F.3d 610, 614
(10th Cir. 2009). Mr. Richards disputes only the third element of the enhancement,
contending the district court erred by finding he committed another felony offense.2
2 At sentencing, neither the district court nor the parties pointed to the precise statute that makes Mr. Richards’s conduct a felony. On appeal, the government asserts that Mr. Richards violated Oklahoma’s domestic assault with a dangerous weapon statute, Okla. Stat. tit. 21, § 644(D)(1), with which state authorities charged him before all state charges were dismissed in favor of the instant federal indictments. Under that statute:
6 “We review the factual findings underlying a district court’s sentencing
determination for clear error and review the underlying legal conclusions de novo.”
Marrufo, 661 F.3d at 1206 (quotation marks omitted). Because Mr. Richards
challenges the district court’s factual findings—arguing that “the district court erred
in relying on impeached hearsay testimony”—he can prevail on appeal only if he
establishes that the district court clearly erred. See Opening Br. at 17.
“Under clear error review, we view the evidence and inferences drawn
therefrom in the light most favorable to the district court’s determination.” United
States v. Porter, 928 F.3d 947, 962 (10th Cir. 2019) (internal quotation marks
omitted). To be clearly erroneous, “a finding must be more than possibly or even
probably wrong; the error must be pellucid to any objective observer.” United States
v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir. 2007) (quotation marks
omitted). “[W]e 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.” Porter, 928 F.3d
at 962–63 (quotation marks omitted). “And this deferential standard of review applies
Any person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault . . . upon . . . a person who formerly lived in the same household as the defendant . . . with any sharp or dangerous weapon . . . is guilty of domestic assault . . . with a dangerous weapon which shall be a felony. Okla. Stat. tit. 21, § 644(D)(1). Mr. Richards does not dispute that if the district court permissibly found that he pointed the firearm at Ms. Perry, he is properly found to have committed this offense for purposes of the enhancement.
7 equally regardless of whether the district court’s factual findings are based on
credibility determinations or on documentary evidence.” United States v. Hargrove,
911 F.3d 1306, 1325 (10th Cir. 2019) (internal quotation marks omitted).
Mr. Richards’s sole argument on appeal is that the impeachment evidence
provided by Mr. Reyna and through the furniture rental agreements rendered
impermissible the district court’s reliance on Sergeant Papera’s account of hearsay3
statements attributed to Ms. Perry and her children.
1. Mr. Reyna’s Testimony
As described above, Mr. Reyna testified that Ms. Perry told him her children
had not observed Mr. Richards point the firearm at her. Because Sergeant Papera
testified that Ms. Perry had related the opposite to him, a factfinder could permissibly
conclude that Mr. Reyna’s testimony (1) calls into question Ms. Perry’s credibility
generally, and/or (2) creates an evidentiary conflict as to whether or not the children
observed the event. The district court ultimately resolved both matters against
Mr. Richards, explaining that “while the evidence as to the hearsay statement of the
3 “[H]earsay statements may be considered at sentencing if they bear some minimal indicia of reliability.” United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013) (quotation marks omitted). Mr. Richards does not argue that the hearsay statements supporting the enhancement did not bear minimal indicia of reliability, and we have affirmed the application of this same sentencing enhancement on substantially similar hearsay evidence as that supporting Mr. Richards’s. See United States v. Farnsworth, 92 F.3d 1001, 1010 (10th Cir. 1996) (deeming reliable a hearsay statement made by victim to police that defendant threatened her with a firearm where statement was made contemporaneously with the incident and the defendant had an opportunity to cross-examine the officer who recounted the hearsay). 8 victim is certainly less than ironclad, it’s not so noncredible as to cause me to
discount it entirely.” Tr. at 24.
To be sure, Mr. Richards has provided evidence from which the district court
could have discounted Ms. Perry’s statement to Sergeant Papera and generally
questioned her credibility. But nothing in the evidence would require the district
court to do so. As a result, Mr. Richards has failed to establish that the district court’s
decision was clearly erroneous. Absent such a showing, we will not disturb a
factfinder’s evidentiary and credibility determinations. See United States v. A.S., 939
F.3d 1063, 1081 (10th Cir. 2019) (“Where conflicting evidence exists, we do not
question the [factfinder’s] conclusions regarding the credibility of witnesses or the
relative weight of evidence.” (quoting United States v. Cope, 676 F.3d 1219, 1255
(10th Cir. 2012) (alteration in original)); United States v. Sweargin, 935 F.3d 1116,
1123 (10th Cir. 2019) (“We have long held that the credibility of a witness at
sentencing is for the sentencing court, who is the trier of fact, to analyze.” (internal
quotation marks omitted)). Because Mr. Richards has adduced nothing that renders
the district court’s resolution of these matters clearly erroneous, we will not disturb
its findings on appeal.
As the district court noted, even if Mr. Richards is correct that the children did
not witness Mr. Richards pointing the firearm at Ms. Perry, that fact does not
preclude a finding that the assault occurred. Ms. Perry did not tell Mr. Reyna that
Mr. Richards did not point a gun at her; she stated only that she believed her children
did not observe the incident. Thus, the district court was free to credit Ms. Perry’s
9 unrebutted statement to police that Mr. Richards pointed the weapon at her—
committing a domestic assault.
Nor did Mr. Reyna’s testimony impeach the credibility of Ms. Perry’s
children, each of whom separately told Sergeant Papera—outside Ms. Perry’s
presence—that they observed Mr. Richards point the firearm at their mother.
Importantly, there was no evidence received about the source of Ms. Perry’s belief
that her children had not witnessed the incident (and therefore nothing to establish a
foundation for her statement to that effect). And Mr. Reyna admitted he did not speak
to the children. Thus, the district court would have acted well within its discretion if
it credited the children’s contemporaneous statements to Sergeant Papera about
matters they personally perceived.
2. Furniture Rental Agreements Evidence
Next, Mr. Richards points to the furniture rental agreements that list his
address as Ms. Perry’s in March of 2016. Mr. Richards introduced the agreements to
prove he was still living with Ms. Perry in September of 2016, and thereby rebut the
government’s assertion that he had burglarized her home. Having succeeded in
thwarting a burglary finding below, Mr. Richards argues on appeal that because
Ms. Perry told police he moved out of her home in February of 2016, the March 2016
furniture rental agreements “alone demonstrate[] the unreliable nature of Ms. Perry’s
hearsay statements.” Opening Br. at 16. But the record is devoid of evidence
suggesting, and Mr. Richards never affirmatively states, that he was residing in
Ms. Perry’s home at the time of the September 2016 incident.
10 Thus, the most damaging inference from the rental agreements is that
Ms. Perry’s recollection about when Mr. Richards moved out of her home was
inaccurate. And even if we assume she intentionally misrepresented that information,
the district court remained free to credit her statement that Mr. Richards pointed the
firearm at her. Stated differently, the impeachment evidence is not so powerful that
the district court’s decision to credit other of Ms. Perry’s statements was clearly
erroneous. At minimum, we cannot say the error would be “pellucid to any objective
observer.” See Cardenas-Alatorre, 485 F.3d at 1119 (quotation marks omitted).
In sum, Mr. Richards has not demonstrated clear error in the district court’s
factfinding. As a result, his four-level enhancement under § 2K2.1(b)(6)(B) must be
sustained.
B. Mr. Richards’s Substantive Reasonableness Challenge
“In considering a substantive-reasonableness challenge, we presume that the
sentence was reasonable if it fell within the applicable guideline range.” United
States v. Ibanez, 893 F.3d 1218, 1219 (10th Cir. 2018). “This is a deferential standard
that either the defendant or the government may rebut by demonstrating that the
sentence is unreasonable when viewed against the other factors delineated in [18
U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
“[I]mportantly, both the Supreme Court and this court have made clear that it is not
the job of an appellate court to review de novo the balance struck by a district court
among the factors set out in § 3553(a).” United States v. Sells, 541 F.3d 1227, 1239
(10th Cir. 2008); see United States v. Vasquez-Alcarez, 647 F.3d 973, 978 (10th Cir.
11 2011) (“Our role is not to second guess the district court’s treatment of the § 3553(a)
factors.”).
“We review the substantive reasonableness of a sentence for abuse of
discretion.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir. 2018) (internal
quotation marks omitted). We will not find this standard met “unless the sentence is
arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (internal quotation
marks omitted). Thus, “we will defer to the district court’s judgment so long as it
falls within the realm of . . . rationally available choices.” Id. (alteration in original)
(quotation marks omitted).
Because Mr. Richards’s 94-month sentence is within his properly computed
Guidelines range of 77–96 months, he bears the burden of rebutting the presumption
that his sentence is substantively reasonable. In attempting to carry that burden,
Mr. Richards submits two arguments.
First, he suggests that “[t]he district court did not properly allocate weight to
[his] childhood, employment history, mental health issues, self-reporting to address
those issues, support from the community, and role as a father to his children.”
Opening Br. at 21 With the exception of Mr. Richards’s employment history, the
district court explicitly weighed each of these matters. Indeed, in analyzing the
§ 3553(a) factors, the district court considered: (1) Mr. Richards’s “particularly
difficult childhood in terms of the circumstances with both his mother and his father”
(Tr. at 46); (2) Mr. Richards’s “mental health-related issues” (Tr. at 45); (3) that
Mr. Richards self-reported to a mental health facility for treatment without “being
12 forced to do it by the criminal justice system or anybody else” (Tr. at 46); (4) the
letters of support from individuals “from his church and others who’ve talked in
terms of his potential” (Tr. at 45); and (5) that Mr. Richards “has been very much
involved in the lives of his kids”4 (Tr. at 46–47). Because he cannot argue that the
district court failed to consider these matters, Mr. Richards argues the court should
have accorded them greater weight and in turn should have imposed a lesser
sentence. But Mr. Richards has not established that the district court abused its
discretion, and absent that showing, we will “not . . . second guess the district court’s
treatment of the § 3553(a) factors.” Vasquez-Alcarez, 647 F.3d at 978.
To the extent Mr. Richards assigns error to the district court’s failure to
explicitly rely on his employment history, we reject that argument. A district court
“need not rely on every single factor—no algorithm exists that instructs the district
judge how to combine the factors or what weight to put on each one.” United States
v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018). And at least in the four years
preceding his sentencing (as far back as the PSR goes), Mr. Richards did not
maintain anything approaching steady employment. In no year did he earn more than
$7,280, and he was terminated for cause from three jobs between 2016 and 2018.
4 The district court accorded less weight to Mr. Richards’s familial support, remarking that “that activity [i.e., his involvement in the lives of his children], laudable as it is, has undoubtedly occurred during much of the same period of time this course of violent conduct and so on that I’ve talked about has also continued.” Tr. at 47. The district court continued: “So much as I hate to impose a sentence that necessarily removes the defendant from their family and from their kids for an extended period of time, it does seem to me that a meaningful sentence is appropriate here.” Tr. at 47. 13 Thus, to the extent Mr. Richards asserts he should have received a lesser sentence
because each additional month incarcerated is another month preventing his return to
stable employment, there is scant evidence for that proposition.
Second, Mr. Richards argues that the district court relied heavily on its finding
that he pointed the firearm at Ms. Perry. Reasserting the arguments he leveled against
that factual finding, Mr. Richards contends that the district court’s reliance on a
clearly erroneous fact in weighing the § 3553(a) factors was an abuse of discretion.
But if we agreed with Mr. Richards that the district court’s factual finding was
unsupported, he would be entitled to a remand for resentencing under a lower
Guidelines range, obviating any consideration of whether his sentence was
substantively reasonable. See United States v. Fennell, 65 F.3d 812, 813–14 (10th
Cir. 1995) (remanding for resentencing after finding sentencing enhancement
factually unsupported). As discussed above, however, the district court did not
clearly err in finding that Mr. Richards used a firearm in connection with a domestic
assault.
Next, Mr. Richards argues that even if the district court’s factual finding is
sustained, “his sentence is substantively unreasonable because the district court
allocated undue weight upon this individual factor.” Opening Br. at 21 As indicated
above, we do not reweigh the § 3553(a) factors and substitute our judgment for that
of the sentencing court. And although the district court relied on its finding that
Mr. Richards pointed a loaded, cocked gun at Ms. Perry—“[a]nd because of that, it
puts this in a more serious circumstance than would be the case if this was just a
14 matter of somebody passively possessing a weapon” (Tr. at 43)—the court appears to
have been more troubled that this incident represented yet another entry in
Mr. Richards’s “history of violence.” Tr. at 47. For example, the district court
remarked that its review of Mr. Richards’s criminal history revealed that “in a
significant number of [the offenses] the indications are that they involved some kind
of violence in the commission of them.”5 Tr. at 44. The district court further noted
that the October 2017 incident at the apartment complex was “also obviously not a
situation of passive possession” of a firearm. Tr. at 43.
Far from abusing its discretion, our review of the record suggests the district
court conducted a thorough and thoughtful § 3553(a) analysis. The district court’s
reasoning demonstrates that it carefully reviewed all of the materials submitted in
connection with the relevant factors, and struck a permissible balance in arriving at a
94-month, within-Guidelines sentence.
III. CONCLUSION
Mr. Richards has not demonstrated any clearly erroneous factual
determinations underlying his sentencing enhancement, and he has not rebutted the
presumption that his within-Guidelines sentence is substantively reasonable. As a
result, the district court is AFFIRMED.
Entered for the Court
Carolyn B. McHugh Circuit Judge
5 Along with several other violent offenses, the PSR reports three prior incidents of domestic violence. 15