United States v. Ortiz

Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 24, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2061
(D.C. No. 1:21-CR-00280-JB-1)
ROBERT ORTIZ, (D.N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, SEYMOUR, and EID, Circuit Judges.
_________________________________
Robert Ortiz challenges his 57-month sentence for carjacking on three
grounds. Finding no error, we affirm.
Background
In November 2020, Ortiz—unemployed, unhoused, and suffering from drug
addiction, posttraumatic stress disorder, anxiety, and depression—was inside a
laundromat trying to obtain quarters from the washing machines. As he was doing so,
Ortiz noticed a BMW parked outside. He approached the vehicle, opened the
driver’s-side door, and demanded the keys from the passenger (who was the only
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 2
person in the vehicle at that time). When the passenger resisted, Ortiz pulled out a
BB gun, pointed it at him, and again demanded the keys.1 The passenger told Ortiz
that he did not have the keys. Ortiz then returned to the laundromat, located the
driver, and demanded the keys while pointing the BB gun at the driver’s chin. The
driver gave Ortiz the keys and told the passenger to exit the vehicle. Ortiz then drove
away in the BMW. Although neither victim was injured, both believed Ortiz intended
to shoot them.
Four days later, officers saw Ortiz run a red light while driving the BMW.
Ortiz attempted to flee but was arrested after a short chase. The government indicted
Ortiz for carjacking. He pleaded guilty without a plea agreement.
Before sentencing, the United States Probation Office prepared a presentence
investigation report (PSR). As relevant here, the PSR recommended adding four
levels to Ortiz’s base offense level under the United States Sentencing Guidelines
(the Guidelines or U.S.S.G.) because he “otherwise us[ed]” a dangerous weapon
during the offense. U.S.S.G. § 2B3.1(b)(2)(D). The PSR set Ortiz’s total offense
level at 23, which, when combined with a criminal history category of III, produced
an advisory Guidelines sentencing range of 57 to 71 months.
Ortiz objected to the four-level enhancement for otherwise using a dangerous
weapon under § 2B3.1(b)(2)(D), arguing that his conduct warranted only a three-
level enhancement under § 2B3.1(b)(2)(E) for brandishing a dangerous weapon. He
1
Ortiz told officers that it was a BB gun, but the victims believed it was a real
firearm; the actual weapon was never located.
2
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 3
accordingly advocated for a total offense level of 22 and a resulting Guidelines range
of 51 to 63 months.
Before the sentencing hearing, the district court issued an order overruling
Ortiz’s objection. After surveying caselaw from the Tenth Circuit and virtually every
other circuit, the district court explained that for the otherwise-used enhancement to
apply, the threat posed to the victim must be specific rather than general. The district
court then determined that Ortiz used the BB gun to create a specific threat by
pointing the BB gun at the victims and demanding the keys to the BMW. Although
the district court agreed with Ortiz that the cases affirming otherwise-used
enhancements typically involved more egregious conduct, it rejected his argument
that the Guidelines impose a “proportionality requirement” for sentencing. R. vol. 1,
45. The district court therefore concluded that Ortiz’s conduct amounted to otherwise
using the BB gun, meriting the four-level enhancement.
At his sentencing hearing, Ortiz argued for a sentence of 41 months, below his
Guidelines range. In support, he cited negative experiences in his upbringing, his
extensive substance-abuse history, and his need for treatment and education. He also
reiterated that his conduct was less egregious than that typically captured by the
otherwise-using enhancement in § 2B3.1(b)(2)(D), warranting a lower sentence. The
district court ultimately imposed a sentence within, but at the bottom of, the
Guidelines range—57 months in prison plus three years of supervised release—and
later issued a written order memorializing and further explaining its sentencing
decision.
3
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 4
Ortiz appeals, raising three issues.
Analysis
I. Otherwise Using a Dangerous Weapon
Ortiz first argues that the district court erred in applying the four-level
enhancement under § 2B3.1(b)(2)(D) for “otherwise us[ing]” a dangerous weapon
during the offense. In his view, he should have only received a three-level
enhancement for “brandish[ing]” under § 2B3.1(b)(2)(E). “We review the factual
findings underlying a district court’s sentencing determination for clear error and
review the underlying legal conclusions de novo.” United States v. Marrufo, 661 F.3d
1204, 1206 (10th Cir. 2011) (italics omitted) (quoting United States v. Hooks, 551
F.3d 1205, 1216 (10th Cir. 2009)).
Section 2B3.1 incorporates the definitions for the terms otherwise used and
brandished from U.S.S.G. § 1B1.1’s application notes. See § 2B3.1 cmt. n.1. Those
application notes define otherwise used as “conduct [that] did not amount to the
discharge of a [dangerous weapon] but was more than brandishing, displaying, or
possessing a . . . dangerous weapon.” § 1B1.1 cmt. n.1(J). And brandished “means
that all or part of the weapon was displayed, or the presence of the weapon was
otherwise made known to another person, in order to intimidate that person,
regardless of whether the weapon was directly visible to that person.” § 1B1.1 cmt.
n.1(C).
We distinguish between otherwise using a dangerous weapon and brandishing
a dangerous weapon by looking at specificity of the threat—we will affirm the
4
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 5
otherwise-used enhancement when the defendant pointed a weapon at a victim to
create a specific rather than general threat of harm. See, e.g., United States v. Gilkey,
118 F.3d 702, 705 (10th Cir. 1997); United States v. Rucker, 178 F.3d 1369 (10th
Cir. 1999).2 For instance, in Gilkey, the defendant robbed a diner and pointed his
weapon directly at various victims while making various demands:
[H]e (1) pointed [the weapon] at the victims, (2) used it to threaten
them, (3) pointed it at one victim’s head while grabbing and lifting her
neck and demanding money, and (4) grabbed another victim, forced him
to an office area while pointing the gun at him, and demanded that he
open the safe and provide money.
118 F.3d at 705 (emphases added). We held that the defendant’s use of the gun to
threaten the victims specifically and directly and to force them to move according to
his instructions constituted conduct more culpable than brandishing, even though it
was unclear whether physical contact between the gun and the victims occurred or
whether the defendant verbalized a threat to kill. Id. In so doing, we explained that
the “specific rather than general pointing of the gun” elevated the gun’s use from
mere brandishing to otherwise using. Id. at 706; see also United States v. Roberts,
898 F.2d 1465, 1469–70 (10th Cir. 1990) (holding that defendant otherwise used
knife by placing it against victim’s throat from behind while demanding money at
2
The parties agree that these cases remain good law even though the definition
of brandished was amended in 2000. The amendment did not impact our specific-
versus-general framework, which we used both before and after the amendment. Cf.
United States v. Villar, 586 F.3d 76, 89 & n.7 (1st Cir. 2009) (explaining that
although some circuits previously used implicit-versus-explicit framework prior to
amendment, majority of those have switched to specific-versus-general framework
after amendment).
5
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 6
ATM). Two years later, we relied on Gilkey to similarly hold that a defendant had
otherwise used a dangerous weapon when he “pointed a gun . . . at the [victims]
while ordering them to comply with his demands.” Rucker, 178 F.3d at 1371(emphasis added).
Other circuits likewise “distinguish[] between the general pointing or waving
about of a weapon, which amounts to ‘brandishing,’ and the pointing of a weapon at
a specific victim or group of victims to force them to comply with the robber’s
demands.” United States v. Johnson, 199 F.3d 123, 126 (3d Cir. 1999); see also id.(collecting cases, including Gilkey, from five circuits).3 In fact, “[v]irtually all of the
circuits to address the question have held that where a dangerous weapon is pointed
at a person and some further verbal threat or order accompanies the pointing of the
weapon to facilitate commission of the underlying crime,” the otherwise-used
enhancement should apply. United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir.
1999) (collecting cases, including Gilkey, from seven circuits). And as in this circuit,
the rationale underlying this “majority view suggests that the key consideration is
whether a gun (or other weapon) was pointed at a specific person in an effort to
create fear so as to facilitate compliance with a demand, and ultimately to facilitate
the commission of the crime.” Id.Notwithstanding this consensus, Ortiz contends that pointing a weapon at a
3
Like our own pre-2000 caselaw, the cases cited in this paragraph remain
good law after the 2000 amendment to the definition of brandish because they follow
the specific-versus-general framework. See, e.g., Villar, 586 F.3d at 90.
6
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 7
victim, even coercively, constitutes only brandishing, not otherwise using. But
Ortiz’s only authority for this point is a dissent from the Ninth Circuit. See United
States v. Albritton, 622 F.3d 1104, 1108–12 (9th Cir. 2010) (Berzon, J., dissenting).
And Ortiz acknowledges our precedent and the weight of authority from other
circuits holding that pointing a weapon to convey a specific threat can constitute
otherwise using that weapon. We therefore reject Ortiz’s argument that pointing a
gun at a victim can never constitute otherwise using it.
Shifting gears, Ortiz concedes that pointing a weapon may sometimes
constitute otherwise using that weapon, but he stresses that a defendant must do more
than merely point a dangerous weapon for pointing to cross the line from brandishing
into otherwise using. And in Ortiz’s view, mere pointing is all he did here. But Ortiz
did not merely point the BB gun. Instead, as the district court found and as the
government emphasizes, he pointed the BB gun directly at the victims to force them
to comply with his demands for the keys to the car. In particular, recall that when the
passenger first resisted Ortiz’s demands for the car keys, Ortiz pulled out the BB gun,
pointed it at him, and demanded the keys a second time. And after learning that the
keys were not in the car, Ortiz then located the driver, pointed the BB gun at his chin,
and demanded the keys from him. In so doing, Ortiz conveyed implicit but specific
threats that he would shoot them if they did not cooperate with his orders. See United
States v. Bolden, 479 F.3d 455, 461 (6th Cir. 2007) (explaining that “by pointing a
firearm at an individual and making a demand of that individual, a defendant
communicates the implicit threat that if the individual does not comply with the
7
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 8
defendant’s demands, the defendant will shoot the individual”). This is precisely the
type of conduct that shifts a defendant’s conduct from brandishing to otherwise
using. See Gilkey, 118 F.3d at 705–06; Rucker, 178 F.3d at 1371; Roberts, 898 F.2d
at 1470.4
To be sure, unlike some defendants in these authorities, Ortiz did not (1) make
physical contact with the victims, (2) force the victims to physically move anywhere,
(3) place his finger on the trigger of the BB gun, (4) swing it at them in a threatening
manner, or (5) say anything explicitly threatening. But the otherwise-used
enhancement does not turn on any of these particular facts. The relevant inquiry is
whether Ortiz pointed the BB gun at the victims to create a specific threat of harm.
And that he did. The district court therefore properly enhanced his sentence by four
levels under § 2B3.1(b)(2)(D).
II. Overall Reasonableness of Sentence
Next, Ortiz challenges the reasonableness of his sentence. When reviewing a
sentence, we “first ensure that the district court committed no significant procedural
error.” Gall v. United States, 552 U.S. 38, 51 (2007). And “[i]f the district court’s
4
Other circuits have reached similar conclusions on similar facts. See, e.g.,
United States v. Orr, 312 F.3d 141, 144–45 (3d Cir. 2002) (pointing gun at victim
while demanding money constituted otherwise using the weapon); Bolden, 479 F.3d
at 461 (pointing gun at individual while making demand amounts to “more than
merely displaying a firearm with an intent to intimidate (i.e., brandishing)”); United
States v. Taylor, 135 F.3d 478, 482–83 (7th Cir. 1998) (poking gun into bank
employee’s back while directing her to hand over money constituted otherwise using
the weapon); Albritton, 622 F.3d at 1107 (pointing pistol at bank teller and ordering
her to get down constituted otherwise using weapon).
8
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 9
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) (quoting Gall, 552 U.S. at 51).
A. Procedural Reasonableness
Ortiz contends that his sentence is procedurally unreasonable. We would
typically review such an argument for abuse of discretion. United States v. Ortiz-
Lazaro, 884 F.3d 1259, 1262 (10th Cir. 2018). But as Ortiz acknowledges, because
he did not raise any procedural challenge below, he must satisfy our plain-error
standard on appeal. Id. We will reverse based on plain error only if “(1) an error
occurred; (2) the error was plain; (3) the error affected . . . substantial rights; and
(4) the error seriously affected the fairness, integrity, or public reputation of a
judicial proceeding.” United States v. Farley, 36 F.4th 1245, 1250 (omission in
original) (quoting United States v. Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016)).
Ortiz specifically argues that the district court failed to adequately explain its
decision to deny his request for a variance. A district court must “state in open court
the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). But
when a district court stays within the Guidelines, it “must provide only a general
statement of its reasons” to satisfy § 3553(c). United States v. Lente, 647 F.3d 1021,
1034–35 (10th Cir. 2011) (quoting United States v. Martinez-Barragan, 545 F.3d
894, 903 (10th Cir. 2008)). This means that even though the district court must
consider the sentencing factors in § 3553(a) when determining an appropriate
sentence, the district court “need not explicitly refer to either the § 3553(a) factors or
9
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 10
respond to every argument for leniency that it rejects in arriving at a reasonable
sentence.” Id. (quoting Martinez-Barragan, 545 F.3d at 903). Further, “the district
court may satisfy its obligation to explain its reasons for rejecting the defendant’s
arguments for a below-Guidelines sentence by” considering the defendant’s
arguments and indicating in some way that it “‘did not rest on the [G]uidelines
alone’” but instead “‘considered whether the [G]uideline[s] sentence actually
conforms, in the circumstances,” to the § 3553(a) factors. United States v. Wireman,
849 F.3d 956, 958–59 (10th Cir. 2017) (quoting Martinez-Barragan, 545 F.3d at
903). “Such a ‘functional rejection’ of a defendant’s arguments—as opposed to an
explicit rejection—is entirely proper.” Id. at 959 (quoting Martinez-Barragan, 545
F.3d at 903).
Here, the district court’s oral pronouncement explained the basis for the
sentence it imposed. To begin, the district court expressly discussed the § 3553(a)
sentencing factors. It considered the nature and circumstances of the offense,
observing that Ortiz was “a large guy” who pointed what appeared to be a real gun at
the victims during the offense. App. vol. 3, 30; see also § 3553(a)(1). The district
court also discussed Ortiz’s history and characteristics, including his difficult
childhood, his substance-abuse problems, and his criminal history. See § 3553(a)(1).
Additionally, the district court acknowledged that the sentence should “promote
respect for the law, provide just punishment, afford adequate deterrence both at [a]
specific and general level,” noting Ortiz’s youth and the risk of recidivism given his
criminal history. R. vol. 3, 30; see also § 3553(a)(2)(A). And in the district court’s
10
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 11
view, a Guidelines sentence would avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of similar conduct. See
§ 3553(a)(6).
Moreover, the district court considered Ortiz’s arguments for a below-
Guidelines sentence. It acknowledged his “tough childhood” and agreed with him
that he needed substance-abuse treatment. R. vol. 3, 29. The district court also noted
that even though the otherwise-used enhancement applied, Ortiz’s “conduct [wa]s not
as egregious as some of the others that pick up” such enhancement. Id.
Nevertheless, Ortiz complains that the district court’s “discussion does little to
explain its decision not to grant a variance.” Aplt. Br. 24. Yet the district court made
clear that it had entertained Ortiz’s arguments for a lower sentence, but after
considering the § 3553(a) factors, it concluded that the mitigating factors were “not
strong enough to take [the sentence] out of the [G]uideline[s] range.” App. vol. 3, 30.
This satisfies the district court’s obligation to explain the reasons for rejecting Ortiz’s
arguments for a downward variance.
Ortiz also faults the district court for stating at the sentencing hearing that it
had identified approximately 12 factors that applied “downward pressure” and 21
factors that put “upward pressure” on the sentence but waiting until its written
sentencing opinion to list those factors. Aplt. Br. 23 (quoting App. vol. 3, 29). Yet
the district court is not required to specifically recite every factor it considers in
arriving at the chosen sentence; again, it only needs to provide a general statement of
its reasons. See Lente, 647 F.3d at 1034. Ortiz attempts get around this well-
11
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 12
established rule by arguing that excluding this list from the oral pronouncement
denied him the opportunity to object and be present at sentencing, but this argument
is unavailing. To be sure, when oral and written orders conflict, “[t]he oral
pronouncement controls because a ‘defendant has the right to be present at
sentencing.’” United States v. Benvie, 18 F.4th 665, 671 (10th Cir. 2021) (quoting
United States v. Barwig, 568 F.3d 852, 857–58 (10th Cir. 2009)). But Ortiz identifies
no clash between the oral pronouncement and the written order. Indeed, as the
government observes, all 21 upward-pressure factors can be found in the district
court’s oral pronouncement. So can the 12 downward-pressure factors, even though
the written order included more specific details about Ortiz’s treatment and
educational needs and his substance-abuse history. In other words, the district court’s
written order merely memorialized and provided a more detailed explanation of its
oral pronouncement. We therefore reject Ortiz’s argument that the district court
failed to give adequate reasons for its sentence by failing to expressly list and number
the 12 and 21 factors it had identified.5
Because the district court provided a general statement of its reasons and
sentenced Ortiz at the bottom of his Guidelines range, Ortiz has failed to establish
any error, much less a plain error that affects his substantial rights or the integrity of
judicial proceedings. See Farley, 36 F.4th at 1250.
5
Ortiz further argues that even if the written order properly elaborated the oral
pronouncement, “it still does not justify the decision.” Aplt. Br. 25. But because the
district court’s oral pronouncement adequately explained the basis for the chosen
sentence, we need not address that argument.
12
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 13
B. Substantive Reasonableness
Ortiz also argues that his 57-month sentence is substantively unreasonable.
Substantive reasonableness asks “whether the length of the sentence is reasonable
given all the circumstances of the case in light of the factors set forth in [§ 3553(a)].”
United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008) (quoting
United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)).
We apply an abuse-of-discretion standard when reviewing a sentence for
substantive reasonableness, “a standard requiring ‘substantial deference to district
courts.’” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quoting
United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)). A district court abuses
its discretion only if it imposes a sentence that is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Sample, 901 F.3d 1196, 1199 (10th Cir.
2018) (quoting United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)). Put
differently, a sentencing decision is substantively unreasonable if it “‘exceed[s] the
bounds of permissible choice,’ given the facts and the applicable law.” United States
v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v. Ortiz,
804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). And because Ortiz’s sentence falls within
his Guidelines range, we presume his sentence is substantively reasonable. See
Alapizco-Valenzuela, 546 F.3d at 1215.
Ortiz “may rebut this presumption by showing that his sentence is
unreasonable in light of” the § 3553(a) factors. Id. Attempting to do so, Ortiz first
argues that the district court erred by considering the seriousness of the offense, its
13
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 14
nature and circumstances, and his criminal history when analyzing the § 3553(a)
factors because these factors were already accounted for by his Guidelines range.
This is essentially an allegation of impermissible double-counting, but it lacks merit.
As the government highlights, district courts must “begin all sentencing proceedings
by correctly calculating the applicable Guidelines range” and then “consider all of
the § 3553(a) factors.” Gall, 552 U.S. at 49 (emphasis added). District courts are not
required to ignore § 3553(a) factors that have some overlap with the Guidelines. On
the contrary, “the sentencing statutes envision both the sentencing judge and the
Commission as carrying out the same basic § 3553(a) objectives, the one, at retail,
the other at wholesale.” Rita v. United States, 551 U.S. 338, 348 (2007). Thus, as we
recently explained in rejecting a challenge to a district court’s decision to impose an
upward variance, “district courts have broad discretion to consider particular facts in
fashioning a sentence under [§ 3553(a)], even when those facts are already accounted
for in the advisory guidelines range.” United States v. Gross, 44 F.4th 1298, 1304
(10th Cir. 2022) (quoting United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)).
Here, the district court properly calculated Ortiz’s Guidelines range and then
considered the § 3553(a) factors in determining that a low-end Guidelines sentence
was appropriate. That some of the factors relevant to determining the Guidelines
range also played a role in the district court’s overall § 3553(a) analysis does not
create an abuse of discretion. And as the government observes, Ortiz identifies
nothing unreasonable about the district court’s finding that the seriousness and
circumstances of his offense and his criminal history weighed in favor of a
14
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 15
Guidelines sentence.
Ortiz also contends the district court ignored the unwarranted sentencing
disparity created by imposing a sentence within the Guidelines, taking issue with the
district court’s refusal to vary downward despite acknowledging that Ortiz’s conduct
was “not as egregious” as that of other defendants who receive the otherwise-using
enhancement. Aplt. Br. 29 (quoting R. vol. 3, 29). According to Ortiz, the district
court effectively failed to consider his disparity argument because, as he sees it, the
district court gave this factor no weight. But as the government highlights, the district
court did consider—and agree—that Ortiz’s conduct was less egregious than that of
some defendants who received an otherwise-used enhancement. Nevertheless, after
considering the § 3553(a) factors, the district court determined that a Guidelines
sentence was appropriate.
When, as here, “the balance struck by the district court among the factors set
out in § 3553(a) is not arbitrary, capricious, or manifestly unreasonable, we must
defer to that decision even if we would not have struck the same balance in the first
instance.” Sells, 541 F.3d at 1239. We therefore see no abuse of discretion in the
district court’s decision to impose a sentence at the bottom of Ortiz’s Guidelines
range.
Conclusion
Because Ortiz pointed a BB gun directly at two victims to force them to
comply with his demands for the car keys, the district court did not err in applying
the four-level enhancement under § 2B3.1(b)(2)(D) for otherwise using a dangerous
15
Appellate Case: 22-2061 Document: 010110817515 Date Filed: 02/24/2023 Page: 16
weapon. It also adequately explained its reasons for imposing the 57-month sentence,
and Ortiz fails to rebut the presumption that his Guidelines sentence is substantively
reasonable. We accordingly affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
16