United States v. Arevalo-Magana

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-5121
(D.C. No. 4:16-CR-00006-GKF-1)
MAURICIO AREVALO-MAGANA, a/k/a (N.D. Okla.)
Wicho, a/k/a Wecho, a/k/a Armando
Magana, a/k/a Armando Murgas, a/k/a
Wicho Murgas,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before KELLY, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Mauricio Arevalo-Magana pled guilty to being an unlawful alien in possession
of firearms and ammunition. See 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2). He now
appeals his 33-month sentence, claiming the district court assigned an incorrect base
offense level without sufficient or reliable evidence. Exercising jurisdiction under
18 U.S.C. § 3742 and 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 This order and judgment is not binding precedent,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.
I. BACKGROUND
During an investigation of Tim Sumner for stealing 47 firearms from an
Oklahoma home, undercover agents with the Bureau of Alcohol, Tobacco, and
Firearms (ATF) attempted to purchase the weapons from him. Police eventually
seized 42 of the 47 firearms. Mr. Sumner said he sold the remaining guns—including
a Bushmaster .223 caliber semiautomatic rifle and a Rock River Arms .223 caliber
rifle—to Mr. Arevalo-Magana in exchange for marijuana and $500.1 The two rifles
and three other firearms were never recovered.
Through their investigation, ATF agents learned that Mr. Arevalo-Magana
stayed in the apartment of Remi Carrillo. Mr. Carrillo told an unnamed ATF agent
that Mr. Arevalo-Magana showed him photos of “AR-15 type rifles” that he had
purchased. R. at 28. He said Mr. Arevalo-Magana disposed of the firearms after
learning that Mr. Sumner had told the police he had sold the firearms to Mr. Arevalo-
Magana.
A grand jury indicted Mr. Arevalo-Magana on three counts: (1) being an
unlawful alien in possession of firearms and ammunition, including the Bushmaster
and Rock River Arms rifles, 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2); (2) possession of
marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(D); and
(3) possession of firearms in furtherance of a drug trafficking crime, 18 U.S.C.
1
Mr. Sumner said he sold the weapons to an individual named “Wicho,” Supp.
R., Vol. II at 14, which is one of Mr. Arevalo-Magana’s aliases.
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§ 924(c)(1)(A)(i). He pled guilty to count one in exchange for dismissal of counts
two and three. He preserved his right to appeal any contested sentencing issue.
Under the plea agreement, the parties stipulated for sentencing purposes that
the anticipated base offense level would be 20 under the U.S. Sentencing Guidelines
Manual § 2K2.1(a)(4)(B) (U.S. Sentencing Comm’n 2015). That provision applies if
the offense involved a semiautomatic firearm capable of accepting a large-capacity
magazine.2 Mr. Arevalo-Magana admitted to possessing the firearms charged in
count one of the indictment, including the Bushmaster and the Rock River Arms
rifles.
The presentence investigation report (PSR) did not apply § 2K2.1(a)(4)(B).
Instead, the PSR assigned a lower base offense level of 14 under USSG
§ 2K2.1(a)(6), without regard to whether the offense involved a semiautomatic
firearm capable of accepting large-capacity magazines. The government objected,
arguing that the Bushmaster and Rock River Arms rifles were semiautomatic firearms
capable of accepting large-capacity magazines. The government claimed that when
ATF agents attempted to purchase the firearms from Mr. Sumner, he sent them
photos depicting the rifles with large-capacity magazines attached. The government
also asserted the burglary victim told ATF Agent Carlos Sandoval he had 20- and
30-round magazines for these rifles.
2
Section 2K2.1(a)(4)(B) also requires the defendant to be a “prohibited
person.” Mr. Arevalo-Magana does not dispute his status as a prohibited person.
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At sentencing, the parties stipulated that the rifles were stolen in new
condition, in their original boxes, with large-capacity magazines. See Supp. R.,
Vol. II at 11-12, 21-22. Also, the government called ATF Agent Lucas Keck. He
testified that he had conducted a phone interview of Mr. Sumner, who said the
“AR-style rifles” “were brand new . . . in the factory-style boxes[] when he []
received them and sold them” to Mr. Arevalo-Magana. Id. at 15. He told Agent
Keck the magazines “were in the original boxes with the rifles” and, although he was
unfamiliar with the magazines, he knew “they were the same ones that came from the
factory.” Id. Agent Keck added that the factory magazines “would have been 20- or
30-round magazines.” Id. at 21.
The district court sustained the government’s objection, ruling there was
sufficient evidence to find that Mr. Arevalo-Magana possessed semiautomatic rifles
with large-capacity magazines in close proximity. The court therefore applied the
base offense level of 20 under § 2K2.1(a)(4)(B). It added 2 levels for the number of
guns involved, another 2 because they were stolen, and 4 more because they were
possessed in connection with another felony (the drug offense), yielding an offense
level of 28. The court then reduced the offense level by 3 because Mr. Arevalo-
Magana accepted responsibility, and granted a 6-level stipulated variance, resulting
in a final offense level of 19. Accounting for his category-I criminal history, the
court determined the applicable sentencing guideline range was 30 to 37 months. It
sentenced Mr. Arevalo-Magana to 33 months in prison.
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Now on appeal, Mr. Arevalo-Magana contends there was insufficient evidence
to support the higher base offense level under § 2K2.1(a)(4)(B) because the rifles
were never recovered. He also contends the government’s evidence at sentencing
was unreliable and could not sustain the greater base offense level.
II. DISCUSSION
“Our appellate review of a defendant’s sentence includes both a procedural
component, encompassing the method by which a sentence was calculated, as well as
a substantive component, which relates to the length of the resulting sentence.”
United States v. Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008) (internal quotation
marks omitted). Mr. Arevalo-Magana contends the district court lacked sufficient or
reliable evidence that he possessed the rifles with large-capacity magazines to impose
a greater base offense level under § 2K2.1(a)(4)(B). “This is a proper procedural
argument because it challenges the district court’s method of fact-finding on a fact
that it used to increase [his] sentence.” United States v. Lente, 647 F.3d 1021, 1031
(10th Cir. 2011).
We examine such procedural challenges for an “abuse of discretion, under
which we review de novo the district court’s legal conclusions regarding the
[G]uidelines and review its factual findings for clear error.” United States v. Gantt,
679 F.3d 1240, 1246 (10th Cir. 2012). The government bears the burden to prove by
a preponderance of the evidence that the offense involved a semiautomatic firearm
capable of accepting a large-capacity magazine. See United States v. Flonnory,
630 F.3d 1280, 1285-86 (10th Cir. 2011) (“The facts necessary to calculate the
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guidelines sentencing range must be proved by a preponderance of the
evidence . . . .”); United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir. 1990)
(“[T]he quantum of proof required for factual determinations under the Sentencing
Guidelines is a preponderance of the evidence and the burden of proof generally is
allocated to the government for sentence increases and to the defendant for sentence
decreases.”).
Under § 2K2.1(a)(4)(B), the applicable base offense level is 20 if the “offense
involved a [] semiautomatic firearm that is capable of accepting a large capacity
magazine.” The commentary notes of § 2K2.1 define a “semiautomatic firearm that
is capable of accepting a large capacity magazine” as:
a semiautomatic firearm that has the ability to fire many rounds without
reloading because at the time of the offense (A) the firearm had attached
to it a magazine or similar device that could accept more than 15 rounds
of ammunition; or (B) a magazine or similar device that could accept
more than 15 rounds of ammunition was in close proximity to the
firearm.
USSG § 2K2.1 cmt. n.2.
It is undisputed that the Bushmaster and Rock River Arms rifles are capable of
accepting large-capacity magazines that hold more than 15 rounds. The question is
whether large-capacity magazines were attached to or within close proximity of the
rifles at the time of the offense. On this score, there was ample evidence that
Mr. Sumner sold the rifles to Mr. Arevalo-Magana with the original, large-capacity
magazines from the manufacturer. The parties stipulated that the rifles were stolen
new, in their original boxes, which contained large-capacity magazines. Mr. Sumner
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confirmed to Agent Keck that he sold the rifles to Mr. Arevalo-Magana with the
magazines. Mr. Arevalo-Magana admitted to possessing the rifles. And although
Mr. Sumner was unfamiliar with the capacity of the magazines, he knew they were
the factory magazines, which Agent Keck testified were capable of holding 20 or 30
rounds. Presented with this evidence, the district court did not clearly err in finding
that Mr. Arevalo-Magana possessed the semiautomatic rifles with large-capacity
magazines in close proximity.
Mr. Arevalo-Magana contends, however, that Agent Keck’s testimony was
unreliable. He points out that Mr. Sumner was not present at the sentencing hearing
and Agent Keck merely relayed his recollection of their phone interview. But
hearsay statements may be considered at sentencing so long as they bear sufficient
indicia of reliability. See United States v. Martinez, 824 F.3d 1256, 1260 n.5
(10th Cir. 2016); United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013);
see also USSG § 6A1.3(a) (“[T]he court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, provided that
the information has sufficient indicia of reliability to support its probable
accuracy.”).
When hearsay is introduced at a sentencing hearing, “[c]orroborating evidence
is often key to determining whether a statement is sufficiently reliable.” Ruby,
706 F.3d at 1229. For example, in Martinez, we concluded the district court did not
clearly err in considering multi-layered hearsay statements that were supported by
corroborating evidence. 824 F.3d at 1263. The court there found that the defendant
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possessed a firearm in connection with another felony for purposes of applying a
four-level enhancement under USSG § 2K2.1(b)(6)(B). Id. at 1259-60. That finding
was based in part on the co-defendant’s incriminating statements to police, which
were memorialized in written police reports indicating that the defendant obtained
the firearm during a burglary they jointly committed. Id. at 1258, 1260-61. These
statements were admitted at sentencing through an ATF agent who had neither
spoken to the co-defendant nor been present during the co-defendant’s interviews
with police. Id. at 1260. We affirmed the enhancement because corroborating
evidence tended to confirm the accuracy of the co-defendant’s statements, id. at
1263;3 see also United States v. Roach, 978 F.2d 573, 575-76 (10th Cir. 1992)
(affirming enhancement based on ATF agent’s hearsay sentencing testimony that was
corroborated by other evidence).
Here, too, corroborating evidence supported the veracity of Mr. Sumner’s
statements. Mr. Sumner said the rifles were brand new, in the original boxes, with
the factory magazines, when he sold them to Mr. Arevalo-Magana. Mr. Arevalo-
Magana admitted to possessing the rifles, and the parties stipulated that they were
stolen in new condition, with the large-capacity magazines. The burglary victim told
ATF Agent Sandoval that he had large-capacity magazines for these rifles when they
3
The corroborating evidence was that the co-defendant knew the defendant
would have at least one firearm from the burglary, the defendant possessed the stolen
firearm nine days after the burglary, the defendant suspiciously stated he obtained the
firearm “in a field from an unknown white guy” long before the firearm was actually
stolen, and the defendant had a lengthy record of theft offenses. Martinez, 824 F.3d
at 1262 (internal quotation marks omitted).
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were stolen, and Agent Keck testified without objection that the original factory
magazines would have held 20 or 30 rounds. This information refutes any suggestion
that the magazines had a lower capacity.
Moreover, Mr. Sumner sent a photo to undercover ATF agents, which was
admitted at sentencing, depicting the rifles with their large-capacity magazines
attached, and Mr. Carrillo told an ATF agent that Mr. Arevalo-Magana showed him a
photo of AR-15-type rifles he had purchased. Although Mr. Arevalo-Magana notes
that Mr. Sumner merely “believed the weapons . . . had the original magazines with
them,” Supp. R., Vol. II at 16 (emphasis added), Mr. Arevalo-Magana stipulated that
the rifles were stolen with large-capacity magazines in the original boxes.
The evidence corroborates Mr. Sumner’s statements and provides sufficient
indicia of reliability as to their veracity. The district court therefore did not clearly
err in considering this evidence and finding that Mr. Arevalo-Magana possessed
semiautomatic rifles with large-capacity magazines in close proximity.
III. CONCLUSION
The judgment of the district court is affirmed.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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