United States v. Dickerson

FILED
United States Court of Appeals
Tenth Circuit
February 3, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 14-2223
v.
(D.C. No. 1:13-CR-03901-MCA-1)
(D.N.M.)
KELVIN L. DICKERSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit
Judges.
Defendant-Appellant Kelvin Dickerson appeals from the district court’s
written judgment sentencing him to 121 months’ imprisonment and three years of
supervised release, and ordering him to pay restitution in the amount of
$9,798.60. Exercising jurisdiction under 28 U.S.C. § 1291, with the exception of
Mr. Dickerson’s challenge regarding the restitution amount specified in the
written judgment, we affirm Mr. Dickerson’s sentence. As to that restitution
*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
amount, we reverse and remand with instructions for the district court to enter
an amended judgment ordering restitution in the amount of $8,424.60.
I
During the summer of 2013, Mr. Dickerson robbed seven individuals as
they attempted to make deposits for their employers at banks throughout
Albuquerque, New Mexico. Applying various amounts of force, Mr. Dickerson
obtained money from the possession of each victim and fled the scene in a car
driven by his co-defendant, Dominique Dickens. Police apprehended Mr.
Dickerson after his seventh robbery, on September 5, 2013.
The grand jury returned an eight-count indictment, charging Mr. Dickerson
with one count of conspiracy to commit robbery in violation of 18 U.S.C.
§ 1951(a) (Count 1), two counts of robbery in violation of § 1951(a) (Counts 2
and 5), and five counts of robbery and aiding and abetting (Counts 3, 4, 6, 7, and
8), in violation of 18 U.S.C. §§ 2 and 1951(a). Mr. Dickerson pleaded guilty to
all eight counts.
The presentence investigation report (“PSR”) calculated a recommended
sentencing range under the U.S. Sentencing Guidelines Manual (“U.S.S.G.” or
“Guidelines”) of 151 to 188 months’ imprisonment and recommended restitution
in the amount of $8,424.60, based on its calculation of actual loss to the
2
individual victims and the employers whose deposits were stolen. 1 To calculate
the recommended Guidelines range, the PSR created seven sentencing groups.
See U.S.S.G. § 3D1.2 (“All counts involving substantially the same harm shall be
grouped together into a single Group.”). The PSR created seven sentencing
groups based on Dickerson’s charges. Group 1 consisted of Count 1 (conspiracy
to commit robbery) and Count 2 (robbery). The remaining six counts were
grouped individually—that is, Count 3 became Group 2, Count 4 became Group 3,
and so on.
The PSR then calculated the combined offense level for the sentencing
groups pursuant to U.S.S.G. § 3D1.4. The combined offense level is determined
by calculating the adjusted offense level for each group and “taking the offense
level applicable to the Group with the highest offense level and increasing that
offense level by the amount indicated in [§ 3D1.4].” See U.S.S.G. § 3D1.4. The
PSR assigned each sentencing group a base offense level of twenty, which is the
base offense level for a violation of 18 U.S.C. § 1951. See U.S.S.G. § 2B3.1.
The PSR then applied various sentencing enhancements to each sentencing
group, 2 and identified Group 5 as having the highest adjusted offense level at
1
The U.S. Probation Office appears to have applied the 2013 version
of the Guidelines. The parties do not challenge this decision on appeal.
Therefore, we reference that version of the Guidelines herein.
2
More specifically, the PSR applied the following enhancements to
each group: Group 1 received two levels for property stolen from a financial
institution pursuant to U.S.S.G. § 2B3.1(b)(1) and two levels for threat of death pursuant
3
thirty. The PSR then increased that offense level—i.e., thirty—by five levels
based on the adjusted offense levels of the other six groups pursuant to § 3D1.4,
totaling a combined offense level of thirty-five. Finally, the PSR subtracted three
levels from the combined offense level for acceptance of responsibility under §
3E1.1, for a total offense level of thirty-two. Based on the total offense level of
thirty-two, and a criminal history category of III, the PSR calculated a Guidelines
range of 151 to 188 months’ imprisonment.
At the sentencing hearing, the district court “adopt[ed] the proposed
findings set forth in the [PSR] with the exception [of the] two-level enhancement
for threat of death” that the PSR had applied to Groups 1, 2, and 3. R., Vol. III,
at 11 (Sentencing Hr’g Tr., dated Dec. 9, 2014). The court then stated that the
Guidelines range was 121 to 151 months’ imprisonment. The court pronounced a
sentence of 121 months’ imprisonment and three years of supervised release, and
to U.S.S.G. § 2B3.1(b)(2)(F); Group 2 received two levels for property stolen from a
financial institution, two levels for threat of death, two levels for bodily injury pursuant to
U.S.S.G. § 2B3.1(b)(3)(A), two levels for physical restraint of victim pursuant to
U.S.S.G. § 2B3.1(b)(4)(B), and one level for loss exceeding $10,000; Group 3 received
two levels for property stolen from a financial institution, two levels for threat of death,
and two levels for physical restraint of victim; Group 4 received three levels for
brandishing a dangerous weapon pursuant to U.S.S.G. § 2B3.1(b)(2)(E) and two levels
for physical restraint of victim; Group 5 received two levels for property stolen from a
financial institution, four levels for use of a dangerous weapon pursuant to U.S.S.G.
§ 2B3.1(b)(2)(D), two levels for bodily injury, and two levels for physical restraint of
victim; Group 6 received four levels for use of a dangerous weapon, two levels for bodily
injury, and two levels for physical restraint of victim; and Group 7 received four levels
for use of a dangerous weapon, two levels for bodily injury, and two levels for physical
restraint of victim.
4
ordered Mr. Dickerson to pay restitution in the amount of $8,424.60.
The district court entered a written judgment against Mr. Dickerson on
December 15, 2014. The written judgment differed from the sentence pronounced
from the bench, however, in one material respect: it ordered restitution in the
amount of $9,798.60, rather than $8,424.60. The remainder of the judgment
reflected the terms orally pronounced at the sentencing hearing: i.e, 121 months’
imprisonment and three years of supervised release.
Mr. Dickerson filed a timely appeal, challenging the amount of the written
restitution order, and the procedural and substantive reasonableness of his prison
sentence.
II
Mr. Dickerson first challenges the restitution amount ordered in the written
judgment. At the sentencing hearing, the district court ordered Mr. Dickerson to
pay $8,424.60 in restitution, but in its written judgment the district court ordered
Mr. Dickerson to pay restitution in the amount of $9,798.60. On appeal, the
government concedes that the amount of restitution ordered at the sentencing
hearing—that is, $8,424.60—controls. We agree. See United States v. Barwig,
568 F.3d 852, 855 (10th Cir. 2012) (“It is undisputed that ‘an oral pronouncement
of sentence from the bench controls over . . . written language.’” (quoting United
States v. Marquez, 337 F.3d 1203, 1207 n.1 (10th Cir. 2003))); accord United
States v. Ullman, 788 F.3d 1260, 1264 (10th Cir. 2015). Accordingly, we reverse
5
and remand to the district court with instructions to enter an amended judgment
reflecting the restitution amount pronounced at the sentencing hearing—that is,
$8,424.60.
III
Mr. Dickerson challenges the procedural and substantive reasonableness of
the district court’s 121-month prison sentence. We reject these challenges.
A
“Reasonableness review is a two-step process comprising a procedural and
a substantive component.” United States v. Verdin-Garcia, 516 F.3d 884, 895
(10th Cir. 2008). “We ‘must first ensure that the district court committed no
significant procedural error . . . .’ If the district court’s decision is ‘procedurally
sound,’ we ‘then consider the substantive reasonableness of the sentence
imposed.’” United States v. Lucero, 747 F.3d 1242, 1246 (10th Cir. 2014)
(citation omitted) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Procedural reasonableness concerns “the manner in which the sentence was
calculated.” United States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014)
(quoting United States v. Masek, 588 F.3d 1283, 1290 (10th Cir. 2009)).
“Procedural error includes ‘failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an explanation for any
6
deviation from the Guidelines range.’” Id. (quoting Gall, 552 U.S. at 51).
Where a defendant preserves his or her procedural challenge in the trial
court, we generally review the procedural reasonableness of that defendant’s
sentence using the familiar abuse-of-discretion standard of review, “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) (alteration in original); accord Lucero, 747 F.3d at
1246.
“The party challenging the sentence ‘bears the initial burden of showing
that the district court’ erred.’” Sanchez-Leon, 764 F.3d at 1261 (quoting Williams
v. United States, 503 U.S. 193, 203 (1992)). “If we find a procedural error,
‘resentencing is required only if the error was not harmless.’” Id. (quoting United
States v. Cerno, 529 F.3d 926, 939 (10th Cir. 2008)).
Substantive reasonableness, on the other hand, concerns “whether the
length of the sentence is reasonable given all the circumstances of the case in
light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Friedman,
554 F.3d 1301, 1307 (10th Cir. 2009) (quoting United States v.
Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008)). We review a
sentence for substantive reasonableness under the abuse-of-discretion standard
and give “substantial deference to district courts.” United States v. Sayad, 589
F.3d 1110, 1116 (10th Cir. 2009).
7
B
We first turn to Mr. Dickerson’s procedural challenges to his prison
sentence. He argues that the district court erred in applying “four types of
sentencing enhancements and [in calculating] restitution” because the relevant
evidence in the record is unreliable and, even if reliable, it is insufficient to
support the enhancements and restitution amounts. Aplt.’s Opening Br. at 18.
Additionally, he argues that the district court failed to make findings as to
disputed issues of fact and erred in relying on these disputed facts to increase his
sentence.
1
We first address Mr. Dickerson’s challenge to the reliability of the
evidence in the record to support the sentencing enhancements and restitution
amount. Mr. Dickerson argues that the only evidence in the record that supports
his enhancements was “hearsay information, most of which was taken from police
reports.” Aplt.’s Opening Br. at 19. He complains that the “probation officer
apparently conducted no in-person interviews and consequently did not observe
the demeanor of any victim or any other person involved in this case,” and that
“[n]o medical reports substantiated the claimed injuries and no business reports
substantiated the claimed loss amounts.” Id. at 20.
a
Where an evidentiary reliability argument is properly preserved for our
8
consideration, “[w]e review for clear error a district court’s assessment of the
reliability of evidence supporting a sentencing enhancement.” United States v.
Martinez, 824 F.3d 1256, 1261 (10th Cir. 2016); see Martinez-Jimenez, 464 F.3d
1205, 1209–10 (10th Cir. 2006) (“We . . . conclude that the district court did not
clearly err in finding that the evidence establishing [the defendant’s] prior
conviction was sufficiently reliable.”). Although Mr. Dickerson objected to the
accuracy of certain facts contained in the PSR and noted that these “objections
remain” at the sentencing hearing, R., Vol. III, at 2, he never made a specific
hearsay challenge to the district court’s reliance on the evidence contained in the
PSR. Accordingly, we deem his hearsay-reliability challenge forfeited and
subject, at most, to rigorous plain-error review. See, e.g., Gantt, 679 F.3d at 1246(“If, however, Defendant did not preserve the procedural challenge below, we
review only for plain error.”); United States v. Martinez-Barragan, 545 F.3d 894,
899 (10th Cir. 2008) (“As a general rule, when a defendant fails to preserve an
objection to the procedural reasonableness of his sentence, we review only for
plain error.”). However, because Mr. Dickerson does not even attempt to make a
hearsay-reliability argument under the plain-error standard, we may decline to
consider the argument at all and treat it as effectively waived. See, e.g., Richison
v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to . . .
argue for plain error and its application on appeal . . . surely marks the end of the
road for an argument for reversal not first presented to the district court.”).
9
b
Even were we to give Mr. Dickerson the benefit of plain-error review, his
hearsay-reliability argument would fail. “We find plain error only when there is
(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007);
accord United States v. Pursley, 577 F.3d 1204, 1233 (10th Cir. 2009). Mr.
Dickerson bears the burden to establish each of these factors. See United States
v. Crowe, 735 F.3d 1229, 1242 (10th Cir. 2013) (“The plain error standard
presents a heavy burden for an appellant, one which is not often satisfied.”
(quoting Romero, 491 F.3d at 1178)); see also United States v. Kieffer, 681 F.3d
1143, 1172 (10th Cir. 2012) (“Both parties agree Defendant did not object to this
condition of supervised release before the district court, so he has the burden of
establishing plain error.”). Mr. Dickerson “cannot establish that such [alleged
hearsay-reliability] error is plain—that is, obvious and clear.” United States v.
Wardell, 591 F.3d 1279, 1298 (10th Cir. 2009); United States v. Duran, 133 F.3d
1324, 1330 (10th Cir. 1998) (“An error . . . is ‘plain’ if it is obvious or clear, i.e.,
if it [is] contrary to well-settled law.”). In other words, even if the district court
erred in relying on unreliable hearsay in imposing the challenged sentencing
enhancements and the restitution amount, we cannot conclude that any such error
is clear or obvious.
10
“[S]entencing courts have broad discretion to consider various kinds of
information.” United States v. Watts, 519 U.S. 148, 151 (1997) (per curiam)
(citing 18 U.S.C. § 3661). “District courts are not strictly bound by the Federal
Rules of Evidence at sentencing hearings.” United States v. Ruby, 706 F.3d 1221,
1229 (10th Cir. 2013); see U.S.S.G. § 6A1.3, cmt. (“In determining the relevant
facts, sentencing judges are not restricted to information that would be admissible
at trial.” (citation omitted)). “[H]earsay statements may be considered at
sentencing if they bear some minimal indicia of reliability.” Ruby, 706 F.3d at
1229 (quoting United States v. Damato, 672 F.3d 832, 847 (10th Cir. 2012)).
“This reliability floor is a requirement of due process” and “[c]orroborating
evidence is often key to determining whether a statement is sufficiently reliable.”
Id.The evidence available to the district court in this case did not clearly or
obviously lack the requisite minimal indicia of reliability to support the
sentencing enhancements. The district court relied on information set forth in the
PSR and “derived from investigative reports prepared by the Albuquerque Police
Department.” See R., Vol. II, at 4 (further noting that the investigative reports
are “contained in the discovery material provided by the United States Attorney’s
Office.”). In Ruby, we found no plain error where a district court similarly relied
on statements contained in a Petition and Violation Report that were derived from
police reports. 706 F.3d at 1229; see also United States v. McBrayer, 546 F.
11App’x 803, 805 (10th Cir. 2013) (“Of course, the district court could consider the
police reports during sentencing, as hearsay evidence may be considered if it
bears a minimal indicia of reliability.”); United States v. West, 2000 WL 807283,
at *4 (10th Cir. June 23, 2000) (unpublished table decision) (affirming application
of sentencing enhancement where district court relied on police report to justify
enhancement).
On appeal, Mr. Dickerson relies chiefly on United States v. Fennell, 65
F.3d 812 (10th Cir. 1995). There the defendant pleaded guilty to possession of an
automatic machine gun, and the district court found by a preponderance of the
evidence that he had fired his machine gun at his girlfriend, an act which
qualified him for a four-level enhancement under the Guidelines. Id. at 813. The
only record evidence supporting the enhancement—that is, the only evidence that
he fired the machine gun at his girlfriend—was the defendant’s girlfriend’s
unsworn telephone account to a testifying probation officer. Id. Finding this
hearsay evidence unreliable, we reversed the enhancement. Id. at 814.
We emphasized that the testifying officer had no opportunity to observe the
demeanor of the girlfriend and that “no other evidence . . . corroborate[d] the
account given the preparing officer.” Id. at 813. Moreover, we explained that
“[t]he government did not bother to file the arrest report or even to summarize its
contents”; therefore, we were “unable to determine if the girlfriend’s
contemporaneous statements to the state police support[ed] the story given the
12
preparing officer.” Id. at 813 n.2. We also noted that Oklahoma authorities had
initially charged the defendant with a misdemeanor, rather than a felony. Id.“We took this as evidence that felonious intent to injure was lacking—meaning
that [the defendant] hadn’t tried to shoot his girlfriend with the machine gun.”
Martinez, 824 F.3d at 1262 (discussing Fennell, 65 F.3d at 813). We thus
concluded that the initial misdemeanor charge “tend[ed] to undermine, rather than
buttress, confidence in the girlfriend’s hearsay statements.” Fennell, 65 F.3d at
813.
Here, the evidence in the record was more reliable than that available to
support the enhancement in Fennell. The PSR at least summarized the contents of
the police reports, as well as the video recordings of the robberies, and the
government disclosed the police reports during discovery. Moreover, Mr.
Dickerson points to no significant inconsistencies among the contents of the
police reports, the video recordings, and the PSR, whereas in Fennell, the initial
misdemeanor charge tended to contradict the girlfriend’s statements.
To be sure, the probation officer in this case conducted a phone interview
of one victim, known as H.G., 3 about a year after the robbery. H.G. gave an
3
Throughout this proceeding—commencing with the indictment—the
government has identified the individual victims of Mr. Dickerson’s offenses by
their initials, cf. 18 U.S.C. § 3771(a)(2) (noting that “[a] crime victim” has “[t]he
right to treated . . . with respect for the victim’s . . . privacy”); Mr. Dickerson and
the PSR have adhered to this practice. And so do we.
13
unsworn account of her injuries, which the probation officer summarized in the
PSR. Mr. Dickerson likens H.G.’s statements to the girlfriend’s statements in
Fennell, which we deemed unreliable. In Fennell, however, we noted that the
girlfriend may have had a reason to lie based on her previous relationship with the
defendant. Here, Mr. Dickerson has made no assertion that H.G. had a dishonest
motive, and no such motive is apparent to us. In fact, the PSR indicates that H.G.
is not seeking restitution or other compensation from Mr. Dickerson, so H.G.
would not personally benefit from exaggerating her injuries to the probation
officer. Moreover, nothing in the record, including her initial statements to the
police, undermines the statements H.G. made over the phone. And Mr. Dickerson
has made no arguments to this effect.
In sum, we conclude that, even assuming that the district court erred in
considering unreliable hearsay in imposing its sentencing enhancements and
determining the restitution amount—which seems doubtful in light of the
foregoing analysis—Mr. Dickerson has not demonstrated that any such error is
clear or obvious. Accordingly, he has not carried his burden under the rigorous
plain-error standard.
2
We now turn to Mr. Dickerson’s argument that the record contained
insufficient evidence to support various sentencing enhancements and the
restitution amount. Specifically, Mr. Dickerson contends that the record
14
contained insufficient evidence to support the restitution order and the imposition
of enhancements for bodily injury, physical restraint, brandishing a dangerous
weapon, use of a dangerous weapon, and loss exceeding $10,000. A district
court’s factual findings supporting sentencing enhancements and restitution
amounts are reviewed for clear error. See, e.g., United States v. Mejia-Canales,
467 F.3d 1280, 1283 (10th Cir. 2006) (“[W]e review the district court’s factual
finding of bodily injury for clear error.”); United States v. Burt, 134 F.3d 997,
999 (10th Cir. 1998) (“We begin with the first prong of the [Guidelines] section
3B1.3 inquiry: whether Defendant possessed special skills within the meaning of
the guideline. We review the district court’s factual findings for clear
error . . . .”); see also United States v. Aranda-Flores, 450 F.3d 1141, 1144 (10th
Cir. 2006) (“We review for clear error the district court’s factual findings
regarding sentencing and review de novo its legal interpretation of the sentencing
guidelines.”). As explained below, we conclude that the district court did not err
in applying the disputed sentencing enhancements and calculating the restitution
amount, based on the evidence in the record.
a
We first address Mr. Dickerson’s challenge to the dangerous-weapon
enhancements applied to Groups 4, 5, 6, and 7. The district court added three
levels to Group 4 pursuant to U.S.S.G. § 2B3.1(b)(2)(E) (punishing the
brandishing or possession of a dangerous weapon), based on the PSR’s finding
15
that Mr. Dickerson shoved a “hard object in [M.P.S.’s] stomach in a manner that
created the impression that the object was a dangerous weapon.” R., Vol. II, at
17. And the court added four levels to Groups 5, 6, and 7 under
§ 2B3.1(b)(2)(D) (punishing the use of a dangerous weapon other than simply
brandishing or possessing it), for using a taser to accomplish the robberies of
H.G., D.G., and J.H., respectively. Mr. Dickerson contests whether, on this
record, a “hard object” or taser constitutes a “dangerous weapon.”
Specifically, the Guidelines provide: “if a dangerous weapon was otherwise
used, increase by 4 levels; . . . if a dangerous weapon was brandished, or
possessed, increase by 3 levels.” U.S.S.G. § 2B3.1(b)(2)(D), (E). The Guidelines
define “dangerous weapon” as:
(i) an instrument capable of inflicting death or serious bodily
injury, or (ii) an object that is not an instrument capable of
inflicting death or serious bodily injury but (I) closely resembles
such an instrument; or (II) the defendant used the object in a
manner that created the impression that the object was such an
instrument . . . .
U.S.S.G. § 1B1.1, cmt. n.1(D).
After the briefs were filed in this case, our circuit determined that a taser is
a dangerous weapon as a matter of law in United States v. Quiver, 805 F.3d 1269(10th Cir. 2015). Specifically, we held that “a Taser—even in drive-stun
mode—is a dangerous weapon.” Id. at 1272. We reasoned that “[i]n either
drive-stun or probe mode, a Taser is ‘capable of inflicting . . . serious bodily
16
injury,’ which is defined as ‘injury involving extreme physical pain or the
protracted impairment of a function of a bodily member, organ, or mental faculty;
or requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation.’” Id. (quoting U.S.S.G. § 1B1.1, cmt. n.1(D), (L)).
In light of Quiver, we reject Mr. Dickerson’s challenge to the four-level
dangerous-weapon enhancements applied to Groups 5, 6, and 7. At oral
argument, Mr. Dickerson conceded as much—specifically, he acknowledged that
our decision in Quiver killed his challenges to the four-level dangerous-weapon
enhancements applied to Groups 5, 6, and 7. However, he insists that the
three-level dangerous-weapon enhancement applied to Group 4 should be
reversed. See Oral Arg. at 6:21–6:25. In explaining the application of the
enhancement to Group 4, the PSR stated that “Mr. Dickerson placed a hard object
in the victim’s stomach in a manner that created the impression that the object
was a dangerous weapon. Therefore a 3 level enhancement is warranted.” R.,
Vol. II, at 17.
Mr. Dickerson objected to this enhancement in the district court, arguing
that “[a]n unidentified hard object . . . is not a dangerous weapon.” R., Vol. I, at
35 (Def.’s Sentencing Mem., filed Oct. 26, 2014). But, as stated above, the
Guidelines define “dangerous weapon” as, inter alia, “an object that . . . the
defendant . . . in a manner that created the impression that the object was [an
instrument capable of inflicting death or serious bodily injury].” U.S.S.G. §
17
1B1.1, cmt. n.1(D). Thus, a hard object does not have to be a dangerous weapon
for this enhancement to apply; rather, an object need only be “used . . . in a
manner that created the impression that the object was a dangerous weapon.” Id.
Here, Mr. Dickerson’s altercation with M.P.S. could certainly give the
impression that he was committing the quintessential “stick ‘em up” robbery; that
is, by shoving a hard object into M.P.S.’s stomach and demanding money, Mr.
Dickerson created the impression that the object was a dangerous weapon that he
would use to inflict serious bodily injury if M.P.S. refused to comply with his
demand. Mr. Dickerson’s briefing offers no legal authority or arguments to the
contrary. We therefore find no clear error in the district court’s application of the
three-level dangerous-weapon enhancement to Group 4.
b
Next, Mr. Dickerson challenges the application of the two-level
enhancement for bodily injury pursuant to U.S.S.G. § 2B3.1(b)(3)(A) to Groups 2,
5, 6, and 7. According to the Guidelines, bodily injury is “any significant injury;
e.g., an injury that is painful and obvious, or is a type for which medical attention
ordinarily would be sought.” U.S.S.G. § 1B1.1, cmt. n.1(B). “To be ‘significant’
an injury need not interfere completely with the injured person’s life but cannot
be wholly trivial and, while it need not last for months or years, must last for
some meaningful period.” United States v. Brown, 200 F.3d 700, 709 (10th Cir.
1999) (quoting United States v. Perkins, 123 F.3d 1324, 1326 (10th Cir. 1997));
18
accord Mejia-Canales, 467 F.3d at 1282. “Visible injuries such as bumps,
bruises, and redness or swelling are sufficient to constitute ‘bodily injury.’”
Brown, 200 F.3d at 709 (finding bodily injury where “victim sustained bleeding
and a severe headache from the ‘half a dozen’ blows he received, as well as
swelling, bruises, cuts and lumps on his face”); see Perkins, 132 F.3d at 1326
(affirming the application of the bodily-injury enhancement where the victim
sustained a small laceration and bruising, and suffered neck and shoulder pain
causing him to seek chiropractic treatment). In determining whether bodily injury
occurred for purposes of the two-level enhancement, the focus of the inquiry is on
the victim’s injury, not on the defendant’s conduct. United States v. Egbert, 562
F.3d 1092, 1102 (10th Cir. 2009).
Mr. Dickerson’s challenges rely heavily on our decision in Mejia-Canales,
supra. There, we reversed a bodily-injury enhancement where the victim
sustained “a minor head injury and a small oral cut.” Mejia-Canales, 467 F.3d at
1283–84. We noted that the head injury was not “necessarily painful or obvious,”
as it “consisted only of a red mark—without any reported swelling, bleeding, or
bruising,” and “the record . . . contain[ed] no evidence regarding the painfulness
or duration of this injury.” Id. As for the oral laceration, the district court took
judicial notice of the fact that “oral injuries do not heal quickly,” but we
disagreed, noting that some oral injuries are “lasting and some fleeting, some
painful and some scarcely so.” Id. at 1284. We disapproved of the district
19
court’s reliance on the PSR’s “cursory description of a ‘small laceration’ and two
photographs of the officer’s mouth, which [were] of such poor quality that they
could lend no support to a . . . finding” of bodily injury. Id. at 1285. In sum, we
held that the red mark and oral laceration did not rise to the level of bodily
injuries under the Guidelines:
In every reported case where a “bodily injury”
enhancement has been upheld against a challenge based on the
significance of the injury or the sufficiency of the evidence
presented, the record before the district court demonstrated
injuries that were more severe than those here, were painful and
lasting, or were of a type for which medical treatment would
ordinarily be sought.
Id. at 1282 (collecting cases).
In Mr. Dickerson’s view, the injuries in this case are similar to the red
mark and oral cut in Mejia-Canales. We disagree. It was not clear error for the
district court to conclude that the injuries here were more significant than those in
Mejia-Canales, and sufficient for the bodily-injury enhancement.
Mr. Dickerson first challenges the application of the bodily-injury
enhancement to Group 2, which corresponds to the robbery of victim C.P.
According to the PSR, Mr. Dickerson threw C.P. to the ground in an apparent
headlock, and pinned her down with his knees on her back. The police officer
who responded to the crime scene observed that C.P. had several scratches and
redness that resulted from her being shoved to the ground.
We conclude that the district court did not clearly err in finding that these
20
injuries are sufficient to constitute bodily injury for purposes of the two-level
enhancement. First, the injury manifested itself as scratches and redness and we
have explicitly stated that “[v]isible injuries such as . . . redness” and presumably
scratches “are sufficient to constitute ‘bodily injury.’” Brown, 200 F.3d at 709.
Second, the PSR states that the officers observed the scratches and redness
on C.P.’s person which suggests that the injury was obvious, an element of the
Guidelines’ definition of bodily injury that was lacking in the injuries in
Mejia-Canales. It is not clear error for the district court to conclude that visible
scratches, which break the skin, are more significant than the red mark left on the
victim in Mejia-Canales. Moreover, there is no indication in the record that the
district court rested its bodily-injury finding on the erroneous notion that
all scratches constitute bodily injury under the Guidelines. In Mejia-Canales, the
district court took judicial notice that all injuries to the mouth are lasting, and we
found clearly erroneous its finding of bodily injury on that basis, because not all
oral injuries will constitute bodily injury. Here, the district court’s finding relates
only to the particular scratches and redness suffered by C.P., and we cannot say
that this finding is clearly erroneous based on the record.
Mr. Dickerson next challenges the application of the bodily-injury
enhancement to Group 5, which corresponds to the robbery of victim H.G. The
robbery of H.G. presents an even stronger case for bodily injury. H.G. told the
responding officer that she had red cuts on her chest after Mr. Dickerson tased
21
and punched her. In a phone interview one year later, H.G. recounted the attack
to the probation officer and stated that she sustained marks on her neck from the
taser that were sore for a month and experienced two weeks of soreness in her
chest from being punched. The evidence thus supports the district court’s finding
that the injuries were visible (red cuts) and lasting (neck soreness for a month and
chest soreness for two weeks). Accordingly, the district court did not clearly err
in applying the bodily-injury enhancement to Group 5.
Mr. Dickerson also contests the application of the bodily-injury
enhancement to Group 6, which corresponds to the robbery of D.G. Like H.G.,
D.G. also sustained cuts from being tased by Mr. Dickerson. The responding
officer observed two cuts on D.G.’s arm where he was tased. According to the
PSR, the video recording from the bank corroborates the use of the taser and
D.G.’s reaction of “jumping [while] clutching his chest.” R., Vol. II, at 9. There
was no follow-up interview with D.G. and there is nothing in the record that
explicitly addresses the length of D.G.’s injuries.
Nonetheless, we cannot say that the district court clearly erred in finding
that D.G.’s injuries constitute bodily injury. The two cuts on D.G.’s wrist were
visible injuries, obvious to the responding officers. Moreover, we consider
relevant the video evidence of D.G. jumping and clutching his chest in response
to the taser. Although we have no evidence that the taser caused D.G. lasting
pain, it would not be clearly erroneous for the district court to infer that the injury
22
to D.G. was painful based on his reaction to the taser in the video recording.
Focusing only on D.G.’s reaction to the pain of the taser, not Mr. Dickerson’s act
of tasing D.G., we conclude that the evidence supports a finding that D.G.
suffered a “painful and obvious” injury sufficient for bodily injury. See U.S.S.G.
§ 1B1.1, cmt. n.1(B). The district court could reasonably find that such a
physical response, in conjunction with visible cuts, rises to the level of bodily
injury under the Guidelines.
Finally, Mr. Dickerson challenges the application of the bodily-injury
enhancement to Group 7, which corresponds to the robbery of J.H. J.H. told
responding officers that he sustained a seven-centimeter red mark on his upper
chest where Mr. Dickerson grabbed him and ripped his shirt during the attack.
Mr. Dickerson then tased J.H. and struck him several times. In Mejia-Canales,
we held that a “red mark—without any reported swelling, bleeding, or
bruising . . . is not, in and of itself, necessarily painful or obvious” and held that
the district court committed clear error when it applied the bodily injury
enhancement based on such a red mark. Id. at 1283. However, in Brown, 200
F.3d at 709, we noted that “[v]isible injuries such as . . . redness . . . are sufficient
to constitute ‘bodily injury.’”
Here, J.H. experienced more than a mere red mark; J.H. also experienced
the shock of a taser. Focusing only on the victim’s injury, it would not have been
clearly erroneous to infer that a victim who experienced the shock of a taser
23
sustained a painful injury and that the red mark is some additional evidence of an
obvious injury. We therefore conclude that the district court’s finding that J.H.
suffered bodily injury is “plausible in light of the record.” See United States v.
Uscanga-Mora, 562 F.3d 1289, 1296 (10th Cir. 2009) (quoting United States v.
Spears, 197 F.3d 465, 469 (10th Cir. 1999)).
In sum, we conclude that the district court did not clearly err in applying
the bodily-injury enhancement.
c
We next turn to Mr. Dickerson’s argument that the district court erred in
applying the U.S.S.G. § 2B3.1(b)(4)(B) enhancement for physical restraint of the
victim to Group 2, which corresponds to the robbery of victim C.P. Under
§ 2B3.1(b)(4)(B) a two-level enhancement applies “if any person was physically
restrained to facilitate commission of the offense or to facilitate escape.” The
Guidelines define “physically restrained” as “the forcible restraint of the victim
such as by being tied, bound, or locked up.” 4 U.S.S.G. § 1B1.1, cmt. n.1(K).
“‘[R]estraint’ . . . mean[s] the defendant’s conduct must hold the victim
4
“By use of the words ‘such as,’ it is apparent that ‘being tied, bound,
or locked up’ are listed by way of example rather than limitation.” United States
v. Roberts, 898 F.2d 1465, 1470 (10th Cir. 1990) (quoting United States v.
Stokley, 881 F.2d 114, 116 (4th Cir. 1989)); accord United States v. Harris, 271
F. App’x 723, 726 (10th Cir. 2008).
24
back from some action, procedure, or course, prevent the victim from doing
something, or otherwise keep the victim within bounds or under control.” United
States v. Checora, 175 F.3d 782, 791 (10th Cir. 1999) (holding that physical
restraint occurred where defendant “tackled [victim] to the ground to prevent his
escape”). “The fact [that] the restraint of [the victim] was brief does not”
foreclose a finding of physical restraint. Id. “[T]he ‘Guidelines do not
distinguish between long- and short-term restraint, and neither will we.’” Id.(quoting United States v. Foppe, 993 F.2d 1444, 1452 (9th Cir. 1993)).
The district court adopted the PSR’s recommendation to apply a two-level
enhancement for physical restraint of victim C.P. The PSR stated that C.P. told
the responding officers that Mr. Dickerson “pinned” her “to the ground . . . with
his knees in her back and demanded she give him the money.” R., Vol. II, at 5.
C.P. complied and Mr. Dickerson fled the scene. Id. According to the PSR, the
video recordings corroborated C.P.’s story that Mr. Dickerson threw her to the
ground “in what appears to be a headlock. As C.P. hits the ground, [Mr.
Dickerson] stands up on top of her and violently rips the cash bag from her
possession.” Id. at 6.
According to Mr. Dickerson he “did not pin C.P. on the ground”; rather,
“they both fell to the ground after a brief scuffle as he tried to take the money
from her.” Aplt.’s Opening Br. at 27. In Mr. Dickerson’s view, this does not rise
to the level of physical restraint. But even Mr. Dickerson’s version of the
25
facts—under which he and C.P. fell to the ground in a struggle for possession of
the money—could be construed as Mr. Dickerson “hold[ing] the victim back from
some action,” whether it be escape or maintaining possession of the money, and
“keep[ing] the victim . . . under [his] control” to effectuate the robbery. See
Checora, 175 F.3d at 791. And, Mr. Dickerson cites no legal authority to the
contrary. His challenge focuses solely on his disagreement with the PSR’s
characterization of his physical altercation with C.P. Even if we assume that his
characterization is plausible, the PSR’s certainly is as well. And, “[w]here there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985). Therefore, the district court’s endorsement of the PSR’s view in
applying the physical-restraint enhancement cannot be deemed clearly erroneous.
d
We next turn to Mr. Dickerson’s claim that the district court erred in
applying the enhancement for loss exceeding $10,000 under U.S.S.G.
§ 2B3.1(b)(7) to Group 2, which corresponds to the robbery of victim C.P. The
PSR states that when Mr. Dickerson robbed C.P., he escaped with $3,662.60 in
cash and $35,885.49 in checks. According to the PSR, “the bulk of [One Main
Financial’s] loss was in the form of checks or money orders, which their
customers either stopped payment on or reissued.” R., Vol. II, at 11. As a result,
the actual loss to One Main Financial for the purposes of restitution, which One
26
Main Financial opted not to pursue, would be the value of the cash—that is,
$3,662.60.
Mr. Dickerson argues that the sentencing enhancement should not apply
because the actual loss to One Main Financial was only $3,662.60, an amount that
is well below $10,000. In Mr. Dickerson’s view, the relevant total for purposes of
this enhancement is the actual loss to the victim and, because One Main Financial’s
customers stopped payment on or reissued the stolen checks or money orders, the
value of the checks and money orders cannot count towards the “loss” for the
sentencing enhancement.
The Guidelines define “loss” as “the value of the property taken, damaged,
or destroyed.” U.S.S.G. § 2B3.1 cmt. n.3. This definition—“the value of the
property taken”—begs the question: at what point in time do we calculate the
value of the loss? When Mr. Dickerson approached C.P., C.P. possessed cash and
checks worth $39,548.09 to One Main Financial. When Mr. Dickerson took
possession of C.P.’s money bag, he escaped with the entire sum of money. At
some point in the future, the stolen checks and money orders in Mr. Dickerson’s
possession became virtually worthless because customers stopped payment on
them. The question, then, is whether we calculate “the value of the property”
taken at the time of dispossession or after customers have canceled the checks and
money orders.
Other circuits have held that for purposes of determining the amount of the
27
loss under § 2B3.1(b)(7), the Guidelines do not limit “loss” to permanent
deprivation of property. See United States v. McCarty, 35 F.3d 1349, 1361 (5th
Cir. 1994) (holding that the relevant amount is the amount taken, not the amount
taken less the amount recovered); United States v. Napier, 21 F.3d 354, 355 (9th
Cir. 1994) (holding that the relevant amount was the amount taken prior to
apprehension of the defendant); United States v. Cruz-Santiago, 12 F.3d 1, 3 (1st
Cir. 1993) (holding that the loss calculation under § 2B3.1(b)(7) is not limited to
permanent deprivations); United States v. Parker, 903 F.2d 91, 105 (2d Cir. 1990)
(holding that the amount of loss is calculated irrespective of whether the property
is immediately thereafter recovered).
Guided by the reasoning of these cases from our sister circuits, we hold that
the relevant value of the loss for purposes of the § 2B3.1(b)(7) enhancement is
the value of the stolen property at the time of dispossession. To hold otherwise
would allow Mr. Dickerson to benefit from the fact that One Main Financial was
able to mitigate its losses. The victim’s ultimate actual loss resulting from the
robbery is a question for restitution, not for this sentencing enhancement.
Therefore, we conclude that the district court did not clearly err in applying the
sentencing enhancement for loss exceeding $10,000 under § 2B3.1(b)(7).
e
Finally, we turn to Mr. Dickerson’s claim that the record contains
insufficient evidence to support the district court’s calculation of actual loss for
28
purposes of restitution in the amount of $8,424.60. The PSR recommended a
restitution amount of $8,424.60. The amount included losses sustained by three
businesses—Loan Max ($3,931), Church’s Chicken ($2,347.60), Sonic
($2,091)—and victim J.H. ($55). The district court adopted the PSR’s findings
and, pursuant to the Mandatory Victims Restitution Act (“MVRA”), see 18
U.S.C.A. § 3663A, ordered restitution in the amount of $8,424.60—the sum of the
aforementioned losses. Mr. Dickerson now argues that the government failed to
prove the amounts of actual loss sustained by Loan Max, Church’s Chicken, and
Sonic.
i
We first address the parties’ dispute as to which standard of review applies
to each of the components of the restitution amount. “We review the district
court’s application of the MVRA de novo, review its factual findings for clear
error, and review the amount of the restitution awarded for abuse of discretion.”
United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). Where a
defendant fails to challenge a restitution amount in the district court, “our review
is for plain error.” United States v. Burns, 800 F.3d 1258, 1261 (10th Cir. 2015).
Mr. Dickerson concedes that he failed to object in the district court to the PSR’s
calculation of Sonic’s actual loss and thus that issue is subject to plain-error
review. The parties dispute which standard of review applies to the restitution
amounts for Loan Max and Church’s Chicken.
29
Mr. Dickerson argues that he preserved his challenges to the restitution
amounts for Loan Max and Church’s Chicken in his sentencing memorandum by
objecting to paragraphs 43 and 45 of the PSR. The relevant portion of his
sentencing memorandum states:
Paragraph 43 - The loss amount of $3,931.00 in this paragraph
differs from the loss of $3,700 which was reported to the police
as reflected in Paragraph 15.
Paragraph 45 - The loss amount of $2,347.60 listed in this
paragraph differs from the loss amount $2,310 which was
reported to the police as reflected in paragraph 17.
R., Vol. I, at 34.
The government argues that plain-error review applies to all three
restitution amounts because Mr. Dickerson failed to object to paragraph 202 of
the PSR, in which the probation officer computed the total amount of restitution
as $8,424.60. The government maintains that Mr. Dickerson’s “objection to the
amount of loss sustained by Loan Max and Church’s Chicken was not a challenge
to restitution, but rather a challenge to adjustments under U.S.S.G.
§ 2B3.1(b)(7).” Id. at 30–31.
We need not resolve the parties’ dispute. Mr. Dickerson makes essentially
the same, overarching argument regarding all three restitution amounts. And, as
we explain below, his argument fails as to all three under the more rigorous clear-
error—as opposed to plain-error—standard. Consequently, for simplicity’s sake,
we review the district court’s calculation of the actual losses suffered by Loan
30
Max, Church’s Chicken, and Sonic for clear error and ultimately reject Mr.
Dickerson’s challenges.
ii
The MVRA provides that the district “court shall order . . . that the
defendant make restitution to the victim of the offense.” 18 U.S.C.
§ 3663A(a)(1). “[A]n order of restitution imposed pursuant to the MVRA must be
based on the ‘full amount of each victim’s losses as determined by the
court . . . .’” United States v. Ferdman, 779 F.3d 1129, 1132 (10th Cir. 2015)
(quoting 18 U.S.C. § 3664(f)(1)(A)). “[T]he MVRA does not require a court to
calculate a victim’s actual loss with ‘exact’ precision.” Id. But, “the MVRA
undoubtedly ‘require[s] some precision when calculating restitution. Speculation
and rough justice are not permitted.’” Id. (quoting United States v. Anderson,
741 F.3d 938, 954 (9th Cir. 2013) (emphasis added)).
“The burden of demonstrating the amount of loss sustained by the victim as
a result of the offense shall be on . . . the Government.” 18 U.S.C. § 3664(e).
The PSR must contain “information sufficient for the court to exercise its
discretion in fashioning a restitution order. The report shall include, to the extent
practicable, a complete accounting of the losses to each victim . . . .” Id.§ 3664(a).
“Any dispute as to the proper amount . . . of restitution shall be resolved by
the court by the preponderance of the evidence.” Id. § 3664(e). “A district court
31
‘may resolve restitution uncertainties with a view towards achieving fairness to
the victim so long as it still makes a reasonable determination of appropriate
restitution rooted in a calculation of actual loss.’” Ferdman, 779 F.3d at 1133
(alteration omitted) (quoting Gallant, 537 F.3d at 1252).
iii
We conclude that the district court did not clearly err in adopting the PSR’s
calculation of actual loss amounts for Loan Max, Church’s Chicken, or Sonic.
The PSR included estimates of the losses as reported by the individual victims of
the crime to the responding officers. The probation officer then conducted
follow-up interviews with each victim employer business to confirm the
restitution amounts. Mr. Dickerson objected that the victims’ loss estimates made
to the responding officers immediately after the robbery differed from the
amounts that the businesses provided in the follow-up interviews with the
probation officer. The probation officer responded to Mr. Dickerson’s objections
in the addendum to the PSR, explaining that any discrepancy was a result of the
fact that the victim gave an approximation at the scene of the crime and that the
businesses were later able to provide a more accurate accounting of actual loss.
On appeal, Mr. Dickerson essentially makes the same argument for all three
restitution amounts. He argues that we must reverse the district court’s order
because the “PSR supplied no supporting documentation for the recommended
restitution amounts and did not identify any individual supplying information on
32
loss amounts or explain how those loss amounts were determined.” Aplt.’s
Opening Br. at 37. But the caselaw Mr. Dickerson relies on to make this
argument is inapplicable here.
Mr. Dickerson chiefly relies on Ferdman, a case in which this court
reversed a restitution award because insufficient evidence was submitted to the
district court. 779 F.3d at 1141. The defendant in Ferdman illegally procured
cellular telephones from Sprint stores. Id. at 1131. The district court ordered the
defendant to pay Sprint $48,715.59 in restitution based entirely on an “unverified
or unsworn . . . letter” that Sprint’s regional manager of investigation submitted
to the probation office. Id. at 1133. The letter “purport[ed] to list the amount of
the phone losses Sprint sustained” during the relevant period. Id. It explained
that “[t]he phone losses are the retail unsubsidized price of these phones,” and
included estimates for investigative and shipping costs that allegedly flowed from
the defendant’s conduct. Id. at 1134. On appeal, we vacated the restitution order
for lack of evidence. Id. at 1141. We held that where a district court relies on
“lost sales and accompanying profits to calculate the amount of the victim’s
actual loss under the MVRA . . . . in the case of fungible or readily replaceable
goods . . . the Government must present more than a claim that but for a
defendant’s theft, the victim may have made additional sales[;] . . . the
Government must present at least some evidence . . . from which the court could
reasonably infer lost sales.” Id. Moreover, we also found that Sprint’s estimates
33
for shipping and investigative costs were insufficient to support a restitution
order. Id. at 1140.
But the facts in this case are different from those in Ferdman. First, it is
easier to calculate the loss for the things that Dickerson stole—cash and
checks—than for fungible assets like cell phones. To calculate the loss of
fungible assets, we usually need to consider lost sales and profits. But to
calculate the loss of cash and checks, we can simply add up the total amount
stolen. Second, there was more evidence supporting the restitution award in this
case than there was in Ferdman. The responding officers received estimates from
the individual victims at the time of the robberies, and the probation officer
verified similar totals with the victim employer businesses when preparing the
PSR. And third, the district court’s restitution calculation was not based on
“estimates” from the victims regarding any vague expenses such as “shipping” or
“investigative” costs as in Ferdman. Here, the total restitution amount was based
only on the value of the cash and checks taken from the victims.
Mr. Dickerson also relies on United States v. Smith, 156 F.3d 1046 (10th
Cir. 1998). There the defendant stole guns from a store and the district court
ordered restitution in the amount of $1,209.98 “to cover the cost of both guns
stolen from the sporting goods store.” Id. at 1057. We reversed the district
court’s restitution order because the government failed to “present evidence at the
hearing concerning the appropriate amount of restitution.” Id. We explained that
34
“[a] restitution order entered without proof of loss is clearly erroneous.” Id. Mr.
Dickerson argues that Smith requires us to reverse the restitution order here
because the government presented no evidence in support of the restitution order
at sentencing. But Mr. Dickerson ignores other differences between this case and
Smith. The stolen property in Smith—like the stolen property in Ferdman—was a
fungible asset; here, the stolen goods were cash and checks. And, as we pointed
out above, it is simpler to calculate the face value of cash and checks than to
calculate the value of fungible assets.
Moreover, the law does not require the government to make a showing at
the restitution hearing where the facts underlying the restitution amounts are
undisputed. See Tindall, 519 F.3d at 1061–62 (holding that a sentencing court
may “‘accept any undisputed portion of the presentence report as a finding of
fact.’” (quoting Fed. R. Crim. P. 32(i)(3)(A))). Mr. Dickerson’s only objection in
the district court related to the minor discrepancies between the victims’ initial
approximations and later clarifications of loss. Mr. Dickerson never pointed to
evidence contradicting the actual loss amounts listed in the PSR. We therefore
conclude that the present record contains sufficient, undisputed evidence of the
actual losses underlying the total restitution amount.
In sum, Mr. Dickerson fails to show that the district court’s factual findings
in support of its restitution award were clearly erroneous, or that the court abused
its discretion in setting the restitution amount at $8,424.60.
35
3
We next turn to Mr. Dickerson’s third procedural challenge. He argues that
his sentence was procedurally unreasonable because the district court failed to
make the factual findings necessary for his sentence or responsive to his
objections. Specifically, Mr. Dickerson argues that remand is necessary because
the district court failed to “find a single fact pertaining to Mr. Dickerson or the
offenses for which he was sentenced.” Aplt.’s Opening Br. at 42. He claims that
his “objections to the PSR clearly triggered the court’s fact finding obligation
under Federal Rule of Criminal Procedure 32.” Id. at 45. We disagree.
Rule 32(i)(3)(A) “allows the sentencing court to ‘accept any undisputed
portion of the presentence report as a finding of fact.’” Tindall, 519 F.3d at
1061–62 (quoting Fed. R. Crim. P. 32(i)(3)(A)). “But the court ‘must—for any
disputed portion of the presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary either because the matter will
not affect sentencing, or because the court will not consider the matter in
sentencing.’” Id. (quoting Fed. R. Civ. P. 32(i)(3)(B)). “We review de novo the
district court’s compliance with the Federal Rules of Criminal Procedure.”
United States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir. 2007).
“[T]o invoke the district court’s Rule 32 fact-finding obligation, the
defendant is required to make specific allegations of factual inaccuracy.” Id. at
1215–16 (quoting United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th
36
Cir. 2006)). “[A] defendant’s attempt to controvert legal determinations—or even
ultimate factual conclusions—drawn in a PSR ‘does not implicate’ the district
court’s fact-finding obligations under Rule 32.” Id. at 1214 (quoting United
States v. Tovar, 27 F.3d 497, 500 (10th Cir 1994)). “Arguments that ‘challenge[]
the district court’s application of the guidelines to the facts and not the facts
themselves’ do not trigger any obligation on the part of the district court to make
specific findings.” Rodriguez-Delma, 456 F.3d at 1253 (quoting United States v.
Windle, 74 F.3d 997, 1002 (10th Cir. 1996)); see also United States v.
Pena-Hermosillo, 522 F.3d 1108, 1118–19 (10th Cir. 2008) (Ebel, J., concurring)
(“Although [the defendant] clearly challenged the application of two guidelines
offense-level enhancements . . . he never disputed any of the historical facts
contained in the [PSR] . . . . Therefore, Rule 32(i)(3)(B)’s requirement that the
district court resolve factual disputes concerning historical facts was never
triggered.”).
On appeal, Mr. Dickerson does not identify any specific, contested facts
that the district court failed to address and that should have triggered a Rule 32
hearing. Rather, Mr. Dickerson only generally refers to the contested sentencing
enhancements and the total restitution amount. He argues:
[T]he district judge adopted the PSR findings and imposed the
bodily injury enhancements, the enhancement for physical
restraint of victim C.P., the dangerous weapon enchantments, the
enhancement for loss above $10,000 and the restitution orders-all
without acknowledging Mr. Dickerson’s numerous objections and
37
without making any findings or comments about them. There is
no indication in the record that the district court considered the
facts underlying the enhancements or the objections Mr.
Dickerson raised.
Aplt.’s Opening Br. at 47. To achieve reversal on appeal, Mr. Dickerson needed
to point us to the “specific allegations of factual inaccuracy” that he made in the
district court that would have triggered the “district court’s Rule 32 fact-finding
obligation.” Cereceres-Zavala, 499 F.3d at 1215–16 (quoting Rodriguez-Delma,
456 F.3d at 1253). But Mr. Dickerson has not carried his burden. We therefore
reject Mr. Dickerson’s Rule 32 challenge.
4
Finally, we turn to Mr. Dickerson’s argument that “[t]he record does not
support the conclusion that the district court appropriately considered the
statutory factors in [18 U.S.C.] § 3553(a).” 5 Aplt.’s Opening Br. at 53. He
argues that “the record is insufficient to permit this Court to properly” review the
district court’s consideration of the § 3553(a) factors. Id. Indeed, the failure of a
district court to consider a § 3553(a) sentencing factor is reversible procedural
error. See Gall, 552 U.S. at 51. However, Mr. Dickerson must direct this court to
5
Mr. Dickerson includes this argument in his
substantive-reasonableness challenge. However, a district court’s failure to
consider a sentencing factor set forth in 18 U.S.C. § 3553(a) is a procedural error.
See Gall, 552 U.S. at 51 (classifying as a procedural error a district court’s
“fail[ure] to consider the § 3553(a) factors”). Therefore, we address his challenge
within our discussion of procedural reasonableness.
38
at least one sentencing factor that, if considered by the district court, would have
altered the district court’s calculation of his sentence. Because he fails to do so,
Mr. Dickerson gives us no basis on which to reverse the district court.
In sum, we conclude that Mr. Dickerson has not identified a significant
procedural error worthy of reversal on appeal.
C
Now that we have assured ourselves that the district court’s sentence is
procedurally reasonable, we turn to Mr. Dickerson’s substantive challenges.
Specifically, Mr. Dickerson argues that his sentence was substantively
unreasonable because (1) the procedural defects in his sentence implicate its
substantive reasonableness, and (2) the court-found facts more than doubled his
Guidelines range. Concluding that Mr. Dickerson has identified no substantive
error, we affirm the district court’s sentence.
1
As we mentioned supra, our “[r]eview for substantive reasonableness
focuses on ‘whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).’”
Friedman, 554 F.3d at 1307 (quoting Alapizco-Valenzuela, 546 F.3d at 1215).
The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence
imposed—(A) to reflect the seriousness of the offense, to
39
promote respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
treatment in the most effective manner; (3) the kinds of sentences
available; (4) the kinds of sentence and the sentencing range
established for—(A) the applicable category of offense
committed by the applicable category of defendant as set forth in
the guidelines . . . (5) any pertinent policy statement[;] . . . (6)
the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and (7) the need to provide restitution to any
victims of the offense.
18 U.S.C. § 3553(a).
“When reviewing a sentence for substantive reasonableness, this court
employs the abuse-of-discretion standard, a standard requiring ‘substantial
deference to district courts.’” Friedman, 554 F.3d at 1307 (citation omitted)
(quoting United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)). “A
district court abuses its discretion when it renders a judgment that is ‘arbitrary,
capricious, whimsical, or manifestly unreasonable.’” United States v.
Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v.
Byrne, 171 F.3d 1231, 1235–36 (10th Cir. 2008)). “That we might reasonably
have concluded a different sentence was appropriate is insufficient to justify
reversal of the district court.” Friedman, 554 F.3d at 1307–08 (alterations
omitted) (quoting Munoz-Nava, 524 F.3d at 1146).
Ordinarily, “if a sentence falls within the correct Guidelines range, we
40
presume it is reasonable.” United States v. Delgado-Montoya, --- F. App’x ----,
2016 WL 6211800, at *6 (10th Cir. Oct. 25, 2016); see United States v. Craig,
808 F.3d 1249, 1263 (10th Cir. 2015) (noting that “we presume Defendant's
within-Guidelines sentence is substantively reasonable”); see also United States v.
Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (“If . . . the district court properly
considers the relevant Guidelines range and sentences the defendant within that
range, the sentence is presumptively reasonable. The defendant may rebut this
presumption by demonstrating that the sentence is unreasonable in light of the
other sentencing factors laid out in § 3553(a).”).
2
At the outset, we address and reject Mr. Dickerson’s contention that we
should eschew the presumption of reasonableness on this record. It would
ordinarily apply because the district court imposed a within-Guidelines sentence
on Mr. Dickerson. See, e.g., Kristl, 437 F.3d at 1055. Specifically, the district
court calculated a Guidelines range of 121 to 151 months and imposed a sentence
within that range—121 months.
Mr. Dickerson contends that we “cannot apply the presumption of
reasonableness that is accorded to a properly calculated guideline sentence
because [we] cannot determine, in light of the inadequate record, that Mr.
Dickerson’s sentence was properly calculated.” Aplt.’s Opening Br. at 53. He
adds that “[t]he court arrived at the guideline range by applying enhancements
41
unsupported by the evidence.” Id. In other words, Mr. Dickerson asserts that we
cannot apply a presumption of reasonableness because (1) his sentence may have
been improperly calculated, and (2) there was insufficient evidence to support the
sentencing enhancements imposed by the district court. We are unpersuaded.
First, in arguing against the presumption, Mr. Dickerson alleges only
procedural defects with his sentence. See Sanchez-Leon, 764 F.3d at 1261 (“Our
review of procedural reasonableness ‘focuses on the manner in which the sentence
was calculated.’” (quoting Masek, 588 F.3d at 1290)). But we considered and
rejected those defects supra. Second, Mr. Dickerson offers no legal support for
the proposition that procedural errors have any bearing on whether we may
properly apply a presumption of reasonableness at the substantive-reasonableness
stage of our review. Indeed, such a proposition would be at odds with our
reasonableness framework. We consider substantive reasonableness only after we
have addressed and rejected challenges to procedural reasonableness. See Lucero,
747 F.3d at 1246 (“We ‘must first ensure that the district court committed no
significant procedural error . . . .’ If the district court’s decision is ‘procedurally
sound,’ we ‘then consider the substantive reasonableness of the sentence
imposed.’” (citation omitted) (quoting Gall, 552 U.S. at 51)). If the alleged
procedural errors Mr. Dickerson identifies as the basis for his anti-presumption
argument were in fact significant errors (i.e., non-harmless errors), we would
have reversed on procedural grounds, without reaching the substantive-
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reasonableness question presently before us. See, e.g., Sanchez-Leon, 764 F.3d at
1261 (“If we find a procedural error, ‘resentencing is required only if the error
was not harmless.’ (quoting Cerno, 529 F.3d at 939)); United States v. Kristl, 437
F.3d 1050, 1054–55 (10th Cir. 2006) (“A different approach, however, is
warranted when the district court errs in applying the Guidelines. . . . In that
situation, we must remand—without reaching the question of [substantive]
reasonableness—unless the error is harmless.” (citations omitted)). Thus,
consistent with our precedent, we apply the presumption of reasonableness to Mr.
Dickerson’s within-Guidelines sentence.
3
The onus is on Mr. Dickerson to “rebut this presumption by demonstrating
that the sentence is unreasonable in light of the other sentencing factors laid out
in § 3553(a).” Kristl, 437 F.3d at 1055. Mr. Dickerson has made no attempt to
carry this burden. He has not identified a single § 3553(a) factor that, if properly
considered in his case, would merit a lower sentence than the district court
imposed on him. Mr. Dickerson argues only that “[t]he record does not support
the conclusion that the district court appropriately considered the statutory factors
in § 3553(a).” Aplt.’s Opening Br. at 53. But Mr. Dickerson’s brief leaves to the
imagination which § 3553(a) factors were not considered, how this is evident
from the district court’s sentence, and which specific factors would have merited
a lower sentence. These questions are essential to our substantive review and
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without answers to them from Mr. Dickerson, we have no basis on which to
reverse the district court.
Instead of making a substantive-reasonableness argument based on the
§ 3553(a) factors, Mr. Dickerson argues that his sentence was substantively
unreasonable because (1) it has procedural defects, and (2) because court-found
facts significantly increased his sentence. Concluding that neither argument is a
basis for finding his sentence substantively unreasonable, we reject Mr.
Dickerson’s substantive challenge.
a
Mr. Dickerson first argues that his sentence was substantively unreasonable
because of its “serious procedural defects.” Aplt.’s Opening Br. at 52.
Specifically, he argues that his sentence was “substantively unreasonable because
the district court imposed . . . numerous enhancements that substantially increased
Mr. Dickerson’s sentence without sufficient evidence or essential findings.” Id.
Moreover, he seems to argue that the district court failed to explain the reasons
for its sentence.
But these are squarely procedural arguments. See Gall, 552 U.S. at 51(categorizing as procedural errors “improperly calculating[] the Guidelines range”
and “failing to adequately explain the chosen sentence.”). And Mr. Dickerson has
identified no legal authority for the proposition that procedural error is a basis for
finding a sentence substantively unreasonable. We again emphasize our process
44
for analyzing reasonableness. We “first ensure that the district court committed
no significant procedural error” that independently warrants reversal. Id. If there
was no procedural error, we “then consider the substantive reasonableness of the
sentence imposed.” Id. If Mr. Dickerson’s sentence was procedurally
unreasonable, we would not have reached the substantive-reasonableness inquiry.
Moreover, Mr. Dickerson argues that “the record is insufficient to permit
this Court to properly conduct substantive review at all.” Aplt.’s Opening Br. at
53. He adds that the “district court did not see or hear any evidence, did not
make any credibility determinations, and did not acquire ‘full knowledge’ of the
pertinent facts.” Id. at 54 (quoting Gall, 552 U.S. at 51). However, the
record—no matter how inadequate—does not excuse Mr. Dickerson’s failure to
make a substantive-reasonableness argument. Put simply, Mr. Dickerson’s
argument regarding the sufficiency of the record misapprehends his burden on
appeal. No matter what the district court has said, or failed to say, he must point
us to at least one § 3553(a) factor that would have counseled in favor a lower
sentence.
b
Finally, Mr. Dickerson argues that his sentence is substantively
unreasonable because court-found facts more than doubled his Guidelines range.
According to Mr. Dickerson, the facts underlying the disputed sentencing
enhancements needed to be either admitted by him or submitted to a jury to
45
satisfy the Sixth Amendment, as interpreted by Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (holding that any fact increasing a sentence beyond the statutory
maximum must be submitted to the jury), and Alleyne v. United States, --- U.S.
----, 133 S. Ct. 2151, 2163–64 (2013) (holding that any fact increasing a
mandatory-minimum sentence must be submitted to the jury). He therefore
argues that we must find his sentence substantively unreasonable.
Mr. Dickerson’s reliance on Apprendi and Alleyne is misplaced. He was
not subject to a mandatory-minimum sentence nor sentenced beyond the statutory
maximum for his robbery-related convictions. The statutory maximum for Mr.
Dickerson’s offenses is twenty years (240 months), see 18 U.S.C. § 1951(a), and
the district court sentenced Mr. Dickerson to 121 months, well beneath the
statutory maximum. And there is no mandatory-minimum sentence prescribed for
his offense. The court’s factual findings simply provided a basis for the court’s
calculation of Mr. Dickerson’s Guidelines sentence, including his sentencing
enhancements. Accordingly, Apprendi and Alleyne are inapposite. See, e.g.,
United States v. Zar, 790 F.3d 1036, 1054–55 (10th Cir. 2015) (“The defendants’
reliance on Apprendi and Alleyne is misplaced as none of the defendants were
subject to mandatory minimum sentences or sentenced beyond the statutory
maximums for their convictions.”); United States v. Cassius, 777 F.3d 1093, 1097
(10th Cir. 2015) (“[N]othing in the record indicates the district court increased
Defendant’s statutory sentencing range or otherwise altered his legally prescribed
46
punishment; rather, by all indications the court used its larger drug quantity
finding solely as a sentencing factor to help determine Defendant’s sentence
within the prescribed statutory range. We find no error in this procedure under
Alleyne.” (emphasis added)), cert. denied, 135 S. Ct. 2909 (2015); United States
v. Fredette, 315 F.3d 1235, 1245 (10th Cir. 2003) (“Apprendi does not apply to
sentencing factors that increase a defendant's guideline range but do not increase
the statutory maximum.”)
In sum, Mr. Dickerson’s failure to argue that his sentence was substantively
unreasonable in light of the § 3553(a) factors is fatal to his substantive challenge.
He has given us no reason to bypass the “due deference” we give to “the district
court’s decision that the § 3553(a)” factors justify the sentence imposed. See
Friedman, 554 F.3d at 1307 (quoting Munoz-Nova, 524 F.3d at 1146).
IV
With the exception of Mr. Dickerson’s challenge regarding the restitution
amount specified in the written judgment, we AFFIRM Mr. Dickerson’s sentence.
As to that restitution amount, we REVERSE and REMAND with instructions for
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the district court to enter an amended judgment ordering restitution in the amount
of $8,424.60.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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