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United States of America v. Jerome A. Holmes
Case Number: 18-6033
Judge: Jerome A. Holmes
Court: UNITED STATES COURT OF APPEALS
On appeal from The United States District Court for the Western District of Oklahoma - Oklahoma City
Plaintiff's Attorney: Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting
United States Attorney, and Jacquelyn M. Hutzell, Assistant United States
Attorney, with him on the brief), Office of the United States Attorney, Western
District of Oklahoma
Denver, CO - Criminal defense lawyer represented defendant with a being a felon in possession of a firearm charge.
In May 2017, a federal grand jury sitting in the Western District of
Oklahoma returned an indictment alleging that, on or about April 21, 2017, in
Oklahoma City, Oklahoma, Mr. Garcia violated 18 U.S.C. § 922(g)(1) by
possessing a firearm after having previously been convicted of a felony. Mr.
Garcia pleaded guilty to the Indictment’s sole count without a plea agreement.
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The Probation Office then prepared a Presentence Report (“PSR”).
describing Mr. Garcia’s offense conduct, the PSR observed that, on April 24,
2016—nearly a year before the April 2017 firearm possession, which formed the
basis of his offense of conviction—officers from the Oklahoma City Police
Department (“OCPD”) encountered Mr. Garcia and his girlfriend at a gas station
in a high-crime area, started talking to him, requested his identification, and asked
whether he was carrying any weapons. Mr. Garcia disclosed that he was carrying
a gun, and an officer found two loaded handguns in Mr. Garcia’s waistband. The
officer arrested Mr. Garcia on an outstanding warrant, and he was later charged in
state court with being a felon in possession of a firearm.
The PSR also described the events directly giving rise to Mr. Garcia’s
current conviction: Specifically, in April 2017, OCPD officers were called to a
high school and spoke to the daughter of Mr. Garcia’s girlfriend. The daughter
reported that her mother (i.e., Mr. Garcia’s girlfriend) had locked herself in a
bedroom to “get away from” Mr. Garcia, who “was agitated” and “had his rifle
out.” R., Vol. II, ¶ 8, at 6 (PSR, originally filed Nov. 22, 2017, revised Dec. 18,
2017). Other officers went to the house where Mr. Garcia’s girlfriend was
1 The Probation Office used the 2016 edition of the United States
Sentencing Guidelines Manual in preparing the PSR. That decision is not
challenged here. Accordingly, we also use that edition when resolving the issues
in this appeal.
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located and convinced her to leave with them. Officers later interviewed her, and
she stated that Mr. Garcia “suddenly became upset with her and hit her with an
unknown object” and “punched her in the leg.” Id. Officers saw a “fresh wound
with blood” on her leg. Id.
Mr. Garcia’s girlfriend had told officers that he “had his rifle out” during
the incident at the house, but she later told them that she had not seen him “get
the rifle out in six months.” Id. Officers noted that she seemed frightened about
what Mr. Garcia might do to her and seemed reluctant to tell them “the whole
truth.” Id. She also expressed concern that Mr. Garcia would commit “suicide by
cop” rather than go back to jail. Id. The girlfriend gave consent to search the
house, and officers discovered a loaded rifle under Mr. Garcia’s bed and 108
rounds of ammunition throughout the house.
The PSR calculated a total offense level of twenty-one. In doing so, it
applied a two-level enhancement under § 2K2.1(b)(1)(A) of the United States
Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) for an offense
involving three or more firearms; the number comprises the rifle forming the
basis for the conviction and the two handguns discovered in the April 2016
firearms incident. The PSR observed that the April 2016 incident and the April
2017 offense of conviction occurred a little less than a year apart.
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The PSR then set forth Mr. Garcia’s criminal history. Mr. Garcia has a
long criminal record, consisting of mostly state offenses that date back to when he
was a juvenile. His record includes a 1993 juvenile adjudication for possessing a
weapon (i.e., an unloaded pistol) on school property when Mr. Garcia was sixteen
years old. His record also includes subsequent adult convictions for, inter alia,
burglary and attempted automobile burglary, as well as discharging a firearm from
a motor vehicle (in 1994, when he was seventeen years old); pointing a firearm at
another (in 1996, when he was nineteen years old); domestic abuse (in 2002,
when he was twenty-five years old); and unlawful possession of marijuana,
methamphetamine, and drug paraphernalia, as well as unlawful shipment, transfer,
receipt, or possession of stolen firearms (in 2008, when he was thirty-one years
old). Notably, the PSR did not assign criminal-history points to over a dozen of
Mr. Garcia’s prior convictions because they were not countable, for various
reasons, under the Guidelines—a majority of them merely because they were too
According to the PSR, Mr. Garcia’s subtotal criminal history score was
three, and one of those criminal-history points stemmed from a 2007 conviction
for possession of methamphetamine for which he received a five-year suspended
sentence in June 2011. The PSR added two points to his subtotal criminal-history
score, pursuant to Guidelines § 4A1.1(d), because Mr. Garcia “committed the
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instant offense while under a criminal justice sentence” resulting from the 2007
conviction. Id., ¶ 52, at 19. This calculation yielded a total of five criminalhistory points, placing Mr. Garcia in criminal-history category III. Based on a
total offense level of twenty-one and a criminal-history category of III, the PSR
found that the Guidelines range was forty-six to fifty-seven months’
imprisonment. Id., ¶ 96, at 28.
The PSR also identified factors that might warrant a non-Guidelines
sentence. In particular, when discussing whether an upward variance would be
justified, the PSR generally stated the following:
Based on the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for the sentence
imposed to reflect the seriousness of the offense, the need to
afford adequate deterrence to criminal conduct, and the need to
protect the public from further crimes of the defendant, an
upward variance may be warranted.
Id., ¶ 119, at 31. In particular, the PSR commented as follows:
The defendant sustained his first felony conviction shortly after
he turned 18; for essentially his entire adult life it has been
unlawful for him to possess firearms. However, he has repeatedly
continued to disregard the law both with respect to firearms and
other criminal activity. . . . The defendant’s possession of a
firearm is particularly concerning – more so than the “average”
felon in possession case – because of his history involving
pointing and discharging firearms. This concern is further
increased because of the defendant’s apparently unstable mental
state and his ongoing involvement in domestic violence.
Id., ¶ 120, at 31–32.
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In urging the court to consider imposing an upward variance, the Probation
Office stressed that the Guidelines range did not adequately take into account the
seriousness and longstanding nature of Mr. Garcia’s criminal conduct.
Underscoring the seriousness of his criminal record, the PSR noted that Mr.
Garcia was only one qualifying conviction short of the three required to subject
him to a sentence under the Armed Career Criminal Act (“ACCA”), which
requires courts to impose a fifteen-year mandatory-minimum prison term on
And, regarding the concern posed by Mr. Garcia’s mental state, the PSR
reported, among other indicators of significant mental instability, that Mr. Garcia
had been diagnosed on two prior occasions as suffering from “Antisocial
Personality Disorder,” that he had previously noted “his own weaknesses as
hurting those he cares about and feeling no pain,” and that currently he “reported
experiencing visual and auditory hallucinations.” Id., ¶¶ 72–73, at 24.
Mr. Garcia filed objections to the PSR’s Guidelines computations, arguing
in pertinent part that the two additional criminal-history points had been
2 The PSR informed the court that, as a matter of law, Mr. Garcia was
not eligible for the ACCA’s fifteen-year mandatory-minimum sentence because
our court had determined that the crime forming the basis for one of his prior
convictions—the 1996 Oklahoma offense for pointing a firearm—did not qualify
as a “violent felony” under the ACCA. See R., Vol. II, ¶121, at 32 (citing United
States v. Titties, 852 F.3d 1257 (10th Cir. 2017), in which we held that
Oklahoma’s offense for pointing a firearm was not a violent felony).
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improperly assessed, pursuant to Guidelines § 4A1.1(d), because his five-year
suspended sentence for methamphetamine possession expired in June 2016, “prior
to the allegations in the case before the [district] [c]ourt”—that is, the April 2017
unlawful firearm-possession offense. Id. at 33 (Addendum to PSR, filed Dec. 18,
The Probation Office responded that, in April 2016, prior to the expiration
of his suspended sentence, Mr. Garcia had unlawfully possessed two handguns,
and this possession was relevant conduct with respect to his subsequent April
2017 offense of conviction. Therefore, it reasoned that adding the two points for
committing “the instant offense while under any criminal justice sentence” was
appropriate. U.S.S.G. § 4A1.1(d). More specifically, referencing the Guidelines
commentary, the Probation Office explained that the “instant offense,” which
§ 4A1.1(d) contemplates, is not limited to just the crime of conviction—which
admittedly occurred in April 2017, after his suspended sentence expired. Rather,
this term, said the Office, encompasses relevant conduct, such as his April 2016
incident involving the unlawful possession of firearms. R., Vol. II, 34. Thus, at
the time of that incident (i.e., in April 2016) Mr. Garcia was still under a
“criminal justice sentence” and thus two additional criminal-history points were
properly attributed to him.
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The district court considered Mr. Garcia’s objections during a sentencing
hearing. Defense counsel initially said that he would stand on his written
objections, while the government stated that it agreed with the Probation Office’s
assessment. As relevant here, defense counsel subsequently reiterated that Mr.
Garcia was not “subject to any criminal indictment, supervision, or probation at
the time this offense occurred,” such that “that [§ 4A1.1(d)] enhancement would
not apply.” Id., Vol. III, at 56 (Sentencing Tr., filed Apr. 6, 2018). Notably, Mr.
Garcia did not specifically object to the Probation Office’s predicate finding that
the April 2016 incident was relevant conduct as to the April 2017 offense of
However, the government agreed with this relevant-conduct finding and
made it the centerpiece of its argument. It emphasized that the April 2016
incident was relevant conduct because Mr. Garcia’s actions were “just a
continuing set of circumstances where [he] was repeatedly and continuously
possessing firearms as a felon.” Id. at 57. The district court asked whether
defense counsel had “[a]nything . . . to add to” the government’s analysis, and
defense counsel responded, “[n]o.” Id. at 57–58.
The district court stated that the relevant-conduct question was “close” due
to the “the amount of time that elapsed between” the April 2016 incident and the
April 2017 offense of conviction, but it ultimately overruled Mr. Garcia’s
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objection because there was “a more or less continuous course of conduct over an
extended period of time involving possession of firearms by [Mr. Garcia] in
various contexts.” Id. at 58. The district court ultimately adopted the PSR’s
Mr. Garcia and counsel made statements prior to sentencing. Defense
counsel contended that Mr. Garcia had “made it as painless as can be for the
[g]overnment” by pleading guilty, and counsel urged the court to consider that
Mr. Garcia had been in custody “for in excess of eight months” based on the
instant offense with “no misconducts.” Id. at 59. Mr. Garcia stated that he had
“time to think about a lot of things” while in custody and would not exercise
similar “poor judgment” in the future. Id. at 59–60. The government requested a
sentence at the high end of the Guidelines range. Specifically, the government
noted Mr. Garcia’s “lifetime of criminal activity,” which had been “virtually
nonstop” since he was sixteen. Id. at 60–62.
The district court, however, elected to vary upward instead from the
Guidelines sentencing range and imposed a term of ninety-six months’
imprisonment. After noting its duty to consider the Guidelines and relevant
statutory factors, it offered a rationale for its decision:
The things that the statute requires me to consider include the
nature and circumstances of the offense.
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Here, of course, I’ve considered the fact that [Mr. Garcia] was
picked up apparently during a relatively violent episode where
the rifle was present.
There was at least some suggestion in the [PSR] that he had
access to it in connection with this dispute with his wife
triggered the immediate inquiry from law enforcement.
It appears that – from the condition and circumstances of the
house, that [Mr. Garcia] was, if not planning for a shootout,
at least equipped for one.
And so that, coupled with the fact that we have had multiple
instances of [Mr. Garcia] dealing with guns over an extended
period of time and all subsequent to an early felony
conviction many years ago, suggests to me that we have a
very serious set of circumstances here because, as counsel for
the [g]overnment has suggested, there has been a long, more
or less continuous history of law-breaking by [Mr. Garcia].
But it appears that throughout virtually the entire period of his
adult life, when he’s committed these other crimes, he’s also
had guns around. So this circumstance here is, in my view,
a very serious offense.
I’m required to consider [Mr. Garcia’s history]. The most
pertinent thing, of course, is that he does have a long, pretty
much continuous history of breaking the law, criminal
convictions for one thing or another.
3 The district court apparently misspoke in referring to the female
involved in the April 2017 incident, which gave rise to Mr. Garcia’s offense of
conviction, as his “wife”; the PSR consistently refers to the woman as Mr.
Garcia’s “girlfriend.” See, e.g., R., Vol. II, ¶ 7, at 3. Mr. Garcia does not refer to
this seemingly minor mistake in his appellate briefing, much less contend that it
has any material bearing on his appellate challenges. Therefore, we do not
consider the matter further.
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At least some of those convictions are for violent conduct,
both in terms of the domestic abuse, and I recall one, I think,
was a drive-by shooting or something equivalent to that.
So we have a very serious streak of violent conduct as a part
of the broader range of criminal activity he’s been involved
[Mr. Garcia] appears to have mental health issues of some
sort, at least in the sense of anger management – maybe more
serious than that – that also, I think, contributes to the
seriousness of what we’re dealing with here.
[The government] has mentioned the factor that I think is
probably the most important of the statutory factors. In some
cases, it’s not the most important, but here I think it probably
is. That’s the need to protect the public from further crimes
of [Mr. Garcia].
I appreciate what [Mr. Garcia] said here today, in terms of
learning his lesson, and I hope that’s true, but the history that
I am looking at here over the last 15 or 20 years suggests to
me that there were a lot of opportunities to learn that lesson
and it didn’t get learned.
So I think there is a substantial need to protect the public
from the risk of further criminal activity of [Mr. Garcia],
partly reflected by the repetitive nature of his criminal
activity generally, but also from the repetitive nature of these
situations where he’s illegally possessing a firearm and, in
some cases, it appears, using it. So all of that adds to the
I think that, in my view, this is simply a situation where the
[G]uideline[s] range does not reach an adequate sentence.
. . . .
It just seems to me that when you consider, in this case, the
lengthy history of criminal conduct, as [the government] has
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pointed out, running more or less continuously from the age
of 16 or 17, the fact that much of it was violent in terms of
these battery situations, the drive-by incident, the
amm[unition] in the house, the various aspects of that, the
repeated possession of the guns, and I think, as I say, the
anger management/mental-health-type issues that appear to be
part of it, this is simply a situation where the risk to the public
from the defendant is very significant, and I think there is a
need to protect the public from the risk of further crimes.
And the [G]uideline[s] sentence, in my view, does not get
So it’s going to be the judgment of the Court that [Mr.
Garcia] be committed to the custody of the Bureau of Prisons
for a term of 96 months.
Id. at 62–66 (emphases added).
The district court entered judgment consistent with this ruling, and Mr.
Garcia timely appealed.
Mr. Garcia challenges the district court’s relevant-conduct finding. Before we
turn to the merits of this issue, however, we consider the appropriate standard of
review, as we have only “limited power” to correct errors that were forfeited in
the district court. United States v. Olano, 507 U.S. 725, 731 (1993); see also
United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)
(applying “rigorous” plain-error standard of review to forfeited errors); accord
FED. R. CRIM. P. 52(b). Mr. Garcia acknowledges that the district court’s
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relevant-conduct finding is reviewable only for plain error because he did not
object to this finding. See Aplt.’s Opening Br. at 8.
4 Curiously, in connection with discussing the standard of review, Mr.
Garcia notes that he “did object to the addition of two criminal history points for
committing the instant offense while under a criminal justice sentence,” and the
propriety of applying those points “involves a legal question of guideline
interpretation,” which “is reviewed de novo.” Aplt.’s Opening Br. at 8–9.
Relatedly, he purports to concede that he is subject to the plain-error standard of
review concerning the district court’s imposition of a two-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(1)(A) for an offense involving three or more
firearms—which was based on the district court’s determination that the two
handguns discovered in Mr. Garcia’s possession in April 2016 were relevant
conduct—because he did not object to this enhancement. But as clearly evident
from Mr. Garcia’s framing in his opening brief of his issues on appeal and his
comments at oral argument, Mr. Garcia fully understands that, with respect to the
district court’s Guidelines rulings, the sole issue before us is whether the court
erred in its relevant-conduct determination, and our review of that issue is for
plain error because Mr. Garcia did not object to this determination. See, e.g., id.
at 2 (describing the Guidelines issue for appeal as “whether the district court
plainly erred in finding that a 2016 arrest for felon in possession of a firearm . . .
constituted relevant conduct” (capitalization omitted)).
To be sure, that relevant-conduct ruling “was used [by the court] to
support,” inter alia, its application of two criminal-history points under
§ 4A1.1(d) and the two offense levels under § 2K2.1(b)(1)(A), for an offense
involving three or more firearms. Id. at 15. But, notably, before the district court
and on appeal, the court’s determination of that relevant-conduct predicate for
these two enhancements has been the exclusive basis for Mr. Garcia’s objection to
them. In other words, the gravamen of his objection to these two Guidelines
enhancements is that they are based on an ostensibly flawed relevant-conduct
determination. Thus, it is not surprising that Mr. Garcia has not argued that the
court’s addition of these enhancements was improper for an independent, nonrelevant-conduct reason. More specifically, no such arguments adequate for our
review appear in his opening brief with respect to the addition of these
enhancements. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th
Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived . . .
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Because we review only for plain error, Mr. Garcia must show “(1) an error,
(2) that is plain, which means clear or obvious under current law, and (3) that
affects substantial rights.” United States v. McGehee, 672 F.3d 860, 876 (10th
Cir. 2012) (quoting United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.
2011)). If Mr. Garcia satisfies these criteria, then under the fourth element of the
plain-error test, we may exercise our discretion to correct the error if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quoting Cooper, 654 F.3d at 1117); see also United States v. Gonzalez-Huerta,
403 F.3d 727, 736 (10th Cir. 2005) (en banc) (underscoring that the party seeking
relief under the plain-error rubric bears the burden of satisfying its elements).
With regard to the standard’s first inquiry—whether there was error at all—the
parties dispute the question of whether relevant conduct is an issue of law,
reviewed de novo, or an issue of fact, reviewed for clear error. See Aplt.’s
.”). Put another way, his objections to these two enhancements are entirely
subsidiary to, and derivative of, his objection on appeal to the court’s relevantconduct determination. As his counsel candidly acknowledged at oral argument,
Mr. Garcia’s objections to these enhancements will “stand or fall” with his
objection to the court’s relevant-conduct ruling. Oral Arg. 3:05–3:07. Therefore,
we need not conduct an independent, standard-of-review analysis with respect to
the district court’s rulings concerning these two enhancements. The only
Guidelines ruling truly before us relates to the district court’s determination that
the April 2016 incident is relevant conduct with respect to the April 2017
incident, which formed the basis for Mr. Garcia’s felon-in-possession conviction.
And the standard of review for that issue is plain error.
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Opening Br. at 9 (arguing for de novo review); Aplee’s Resp. Br. at 13 n.2
(“[T]he proper standard for reviewing whether a district court’s relevant conduct
determination was valid is normally clear error, as such a determination is a
factual finding.”). Unfortunately, “[t]he answer to this question has perplexed
this Court. . . . [and] [w]e have been inconsistent in our decisions” concerning it.
United States v. Craig, 808 F.3d 1249, 1255 (10th Cir. 2015). We need not delve
into this matter further, however. Instead, we are content to “give [Mr. Garcia]
the benefit of the doubt and assume for the purposes of this appeal that a district
court’s ultimate determination of relevant conduct is a legal conclusion we review
de novo.” Id. This is so because, irrespective of the character of this ultimate
relevant-conduct determination, Mr. Garcia’s challenge here turns on whether the
record provides a proper foundation for certain subsidiary “factual findings in
support of a determination of relevant conduct.” United States v. Griffith, 584
F.3d 1004, 1012 (10th Cir. 2009). And it is undisputed that ordinarily (absent
forfeiture) we must review those findings only for clear error. Id.; accord United
States v. Smith, 705 F.3d 1268, 1274 (10th Cir. 2013); see Craig, 808 F.3d at
1255 (“Even under this assumption [that relevant conduct is a question of law],
we must still review for clear error the district court’s factual findings supporting
its determination of relevant conduct.”).
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As to the plain-error rubric’s second inquiry, we have held that an error is clear or
obvious if “it is contrary to well-settled law.” United States v. Whitney, 229 F.3d
1296, 1309 (10th Cir. 2000); accord United States v. DeChristopher, 695 F.3d
1082, 1091 (10th Cir. 2012). And “[i]n general, for an error to be contrary to
well-settled law, either the Supreme Court or this court must have addressed the
issue.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003); accord
United States v. Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011). Lastly, as to
the third inquiry, ordinarily when we say that “the error affects substantial rights .
. . [that] ‘usually means that the error must have affected the outcome of the
district court proceedings.’” Gonzalez-Huerta, 403 F.3d at 732–33 (quoting
United States v. Cotton, 535 U.S. 625, 632 (2002)); accord United States v.
Pablo, 696 F.3d 1280, 1293 (10th Cir. 2012).
We now turn to the merits of Mr. Garcia’s relevant-conduct argument. Mr.
Garcia’s argument concerns the application of Guidelines § 1B1.3, entitled
“Relevant Conduct,” and particularly its instruction that, as to “offenses of a
character for which [Guidelines] § 3D1.2(d) would require grouping of multiple
counts,” relevant conduct includes “all acts or omissions . . . that were part of the
same course of conduct . . . as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2)
(emphasis added). Significantly, § 3D1.2(d) requires the grouping of multiple
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counts of offenses that § 2K2.1 covers. And § 2K2.1 is applicable to Mr.
Garcia’s offense of conviction under 18 U.S.C. § 922(g)(1). See id. § 3D1.2(d).
Therefore, the court was obliged to apply the same-course-of-conduct standard
here. This standard is a factual one, and, consequently, a court’s same-course-ofconduct determination ordinarily (absent forfeiture) would be reviewed only for
clear error. See, e.g., United States v. Svacina, 137 F.3d 1179, 1185 (10th Cir.
1998) (“We hold that the court’s factual finding that Defendant’s possession of
methamphetamine in August 1995 was part of the same course of conduct as the
offense of conviction is not clearly erroneous.”); United States v. McKneely, 69
F.3d 1067, 1079 (10th Cir. 1995) (“The district court’s determination that the
cocaine seized in Utah was involved in the same course of conduct as the offense
of conviction was not clearly erroneous.”).
According to an application note to § 1B1.3, offenses are part of the same course
of conduct if they “are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode, spree, or ongoing
series of offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). The note continues as
Factors that are appropriate to the determination of whether
offenses are sufficiently connected or related to each other to
be considered as part of the same course of conduct include
the degree of similarity of the offenses, the regularity
(repetitions) of the offenses, and the time interval between the
offenses. When one of the above factors is absent, a stronger
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presence of at least one of the other factors is required. For
example, where the conduct alleged to be relevant is relatively
remote to the offense of conviction, a stronger showing of
similarity or regularity is necessary to compensate for the
absence of temporal proximity. The nature of the offenses
may also be a relevant consideration (e.g., a defendant’s
failure to file tax returns in three consecutive years
appropriately would be considered as part of the same course
of conduct because such returns are only required at yearly
Id. (emphasis added).
We have opined that this same-course-of-conduct standard “looks to
whether the defendant repeats the same type of criminal activity over time,” but
“does not require that acts be ‘connected together’ by common participants or by
an overall scheme.” United States v. Roederer, 11 F.3d 973, 979 (10th Cir. 1993)
(quoting United States v. Perdomo, 927 F.2d 111, 115 (2d Cir. 1991)).
5 Mr. Garcia observes that both Roederer and United States v.
Richards, 27 F.3d 465 (10th Cir. 1994), were decided prior to a 1994 amendment
to the Guidelines commentary which “specifically directed courts to consider
similarity, regularity and time interval separately, and to require a stronger
presence of one when another factor is absent.” Aplt.’s Reply Br. at 10 n.1. He
does not argue, however, that these cases are inapposite as to all matters arising in
the relevant-conduct context. Indeed, he relies on Roederer’s analysis of one of
the three factors. See Aplt.’s Opening Br. at 13. Moreover, our cases after 1994
have continued to cite Roederer and Richards for other relevant-conduct
principles. See, e.g., United States v. Caldwell, 585 F.3d 1347, 1350–51 (10th
Cir. 2009); see also United States v. Niles, 708 F. App’x 496, 504 (10th Cir.
2017) (unpublished). Therefore, although we do not rely on Roederer and
Richards for principles directly relating to the existence of an obligation of
sentencing courts to consider the three factors and the specified methodology for
weighing the factors, we rely on the cases for other, more general principles
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focuses instead on whether [a] defendant has engaged in an identifiable ‘behavior
pattern’ . . . of specified criminal activity.” Id. (emphasis added) (quoting
Perdomo, 927 F.2d at 115). Morever, “each case depends largely on its own
facts.” Id. (quoting United States v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990)).
Here, the parties dispute the presence and strength of each of the three
application-note factors—that is, the degree of similarity of the offenses, the
regularity or repetition of the offenses, and the temporal proximity of the
offenses. For the reasons explicated below, we conclude that, with respect to the
district court’s relevant-conduct determination, Mr. Garcia cannot establish
reversible error under the plain-error standard.
Mr. Garcia first argues that the two instances of possession were “factually
dissimilar.” Aplt.’s Opening Br. at 12. That is, during the April 2016 incident,
he possessed handguns on his person and outside his home, there was no evidence
that he was “using” the guns when he was apprehended, and he was compliant
germane to the relevant-conduct determination.
6 Mr. Garcia is correct that the district court did not individually
address the three factors and expressly balance them against each other. See
Aplt.’s Opening Br. at 11–12. Under similar circumstances, however, we have
ruled that a district court’s failure to make “specific findings” on the factors is
not fatal in light of our ability to affirm on any ground supported by the record.
See Richards, 27 F.3d at 468 (citing Roederer, 11 F.3d at 977).
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when officers asked to speak with him. Id. On the other hand, during the April
2017 incident, the firearm was found at Mr. Garcia’s home and his girlfriend
“gave inconsistent stories about whether Mr. Garcia actually had his rifle out, or
whether it had always been under the bed.” Id.; see also Aplt.’s Reply Br. at 4
(arguing that “the only similarity” between the incidents was “the name of the
charge and the name of the defendant”).
The government argues otherwise, relying principally on United States v.
Windle, 74 F.3d 997 (10th Cir. 1996). There, we rejected a defendant’s argument
that possession of other firearms was not relevant conduct to a felon-inpossession charge, observing succinctly that “the offenses were not merely similar
but identical.” Id. at 1000. The government also notes that both offenses
occurred in Oklahoma City, see, e.g., United States v. Caldwell, 585 F.3d 1347,
1353 (10th Cir. 2009) (finding similarity present for producing and selling crack
cocaine where, inter alia, “all three instances of Mr. Caldwell’s conduct of
conviction and all three instances of his relevant conduct took place in the same
city in Kansas”), and that in both instances the guns were “loaded and ready to be
fired,” Aplee.’s Resp. Br. at 16.
Having considered the parties’ arguments here, we conclude that Mr.
Garcia has failed to establish the “factual dissimilarity” that he alleges. More
specifically, we conclude that he has not established error—much less clear or
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obvious error—concerning a judicial finding of similarity. Notably, he has not
offered us any legal authority that indicates that the fine distinctions that he draws
between the precise location where the firearms were possessed, his use of the
firearms, and his compliance with law enforcement are distinctions with a
material difference on the question of similarity. On the other hand, our decision
in Windle appears to forcefully undercut Mr. Garcia’s similarity argument.
Windle may be reasonably read as holding that, in connection with a felon-inpossession crime, a defendant’s additional instances of illegal firearm possession
may be found to be “not merely similar but identical,” Windle, 74 F.3d at 1000, to
the offense of conviction—without the need for a sentencing court to engage in a
detailed analysis of the factual circumstances of each possession.
Mr. Garcia’s attempts to diminish the potency of Windle are unpersuasive.
In this regard, Mr. Garcia contends that Windle engaged in “little analysis” and
failed to discuss “the circumstances under which the individual guns were
possessed” or to expressly weigh the three factors.
See Aplt.’s Reply Br. at 5.
7 Mr. Garcia also states that “the only objection the defendant [in
Windle] appeared to lodge was to the sufficiency of the proof of his previous
firearms possessions, a point he later conceded.” Aplt.’s Reply Br. at 5.
This is an untenably narrow reading of Windle. To be sure, the court there
first addressed whether the government had adequately proven that the
offense “involved five firearms,” noting that defense counsel had basically
conceded this issue at argument. 74 F.3d at 1000. But then the court went
on to analyze the defendant’s contention that “the possession of the firearms
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But, as noted, Windle is reasonably read as not requiring sentencing courts to
parse the factual circumstances under which individual guns are possessed in
reaching similarity determinations, and the mere fact that Windle’s analysis is
brief does not mean that it is not cogent and entirely congruent with the concerns
of § 1B1.3, and we conclude that it is.
Furthermore, stepping beyond Windle, several of our cases have ruled that
allegedly relevant conduct can differ in meaningful respects from the conduct
giving rise to a conviction without rendering the respective sets of conduct
“factually dissimilar” from one another. See Caldwell, 585 F.3d at 1353 (“To be
sure, there were also some differences between Mr. Caldwell’s conduct of
conviction and his relevant conduct. For example, Mr. Caldwell’s role in the
conduct of conviction (distributor) differed from his role in the relevant conduct
(producer). Further, the amount involved in the relevant conduct was greater than
the amount involved in the conduct of conviction. . . . These differences do not
undercut the substantial similarities between his conduct of conviction and his
additional relevant conduct.”); see also United States v. Moore, 130 F.3d 1414,
1418 (10th Cir. 1997) (“In Moore’s case, the record shows substantial similarity
[was] not relevant conduct.” Id. Significantly, the Windle defendant had not
specifically conceded the issue of similarity. Therefore, his objection to a
finding of relevant-conduct would necessarily have put the issue of similarity
in play and required the court to resolve it.
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between his nine-ounce crack deal in September 1992 and the smaller deals that
comprised the earlier conspiracy[.] . . . Although the amount of crack in the
September 1992 [deal] was larger than ever before, this difference does not
outweigh the rest of the similarities with the earlier activities.”). Therefore, the
fine distinctions that Mr. Garcia draws between the April 2016 event and the
April 2017 offense of conviction do not avail him.
We thus conclude that Mr. Garcia’s arguments do not permit him to cross
the threshold of showing that a similarity determination would constitute error.
But, even if he had succeeded in crossing the error threshold, given the absence of
any controlling, on-point caselaw favorable to his cause, Mr. Garcia could not
establish that any similarity finding was clear or obvious error.
8 Therefore, the
8 Mr. Garcia’s relevant-conduct argument relies in substantial part on
the Sixth Circuit’s decision in United States v. Amerson, 886 F.3d 568 (6th Cir.
2018), which found that the relevant-conduct test was not satisfied where, inter
alia, the guns that were the subject of a felon-in-possession conviction and the
guns that were possessed as allegedly relevant conduct were possessed at different
times and under different factual circumstances. Aplt.’s Opening Br. at 14–15.
However, as Ruiz-Gea’s holding makes clear, 340 F.3d at 1187, a single decision
from one of our sister circuits ordinarily is no moment on the question of whether
the district court clearly or obviously erred, see, e.g., United States v. Schneider,
704 F.3d 1287, 1304 (10th Cir. 2013) (Holmes, J., concurring, joined by
Martinez, J., to constitute a majority) (noting that “[g]enerally” the absence of
Supreme Court or Tenth Circuit authority “will close the door on a claim that the
error at issue is clear or obvious”). Furthermore, Amerson is distinguishable at
least on the question of whether the district court clearly or obviously erred here
because it was not decided under the plain-error rubric. See 886 F.3d at 573
(reviewing the district court’s relevant-conduct determination de novo and
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similarity factor does not support his challenge to the district court’s relevantconduct determination.
“‘To determine whether “regularity” is present, we inquire whether there is
evidence of a regular, i.e., repeated, pattern of similar unlawful conduct’ between
‘the purported relevant conduct and the offense of conviction.’” United States v.
Damato, 672 F.3d 832, 841 (10th Cir. 2012) (emphasis added) (quoting United
States v. Rhine, 583 F.3d 878, 889–90 (5th Cir. 2009)).
Mr. Garcia argues that “[t]he only two incidents occurred 362 days apart,
and there were no intervening instances of firearms possession on which the
[district] court relied.”
9 Aplt.’s Opening Br. at 12. According to Mr. Garcia,
“[c]ourts have found that where only two separate incidents are at issue, there is
not a significant degree of regularity.” Id. at 12–13. But, citing our decision in
Svacina, the government argues that two incidents are enough to demonstrate
observing that it was the government’s burden to prove that another offense was
9 Mr. Garcia acknowledges that the PSR identified other instances of
firearm possession, but he contends that these occurred in the mid-1990s and in
2008—many years prior to the events of this case. See Aplt.’s Opening Br. at 12
n.3; Aplt.’s Reply Br. at 8. The government does not advance these instances in
support of a showing of regularity, see Aplee.’s Resp. Br. at 16–17, and we do not
rely on them in our analysis.
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regularity. See Aplee’s Resp. Br. at 16. Svacina’s discussion of the regularity
issue is brief. See 137 F.3d at 1183. However, in considering there whether a
dismissed drug count qualified as relevant conduct to the drug offense of
conviction, we stated, “[a] comparison of the dismissed count with the count of
conviction also shows that some regularity of conduct exists—the minimum
requirement of two instances of conduct.” Id. Quite apart from Svacina,
moreover, the government challenges the factual premise of Mr. Garcia’s
argument—specifically, the belief that there are only two incidents at issue in the
regularity analysis—i.e., the firearm incidents of April 2016 and April 2017. The
government points out that Mr. Garcia’s girlfriend told law enforcement that he
had “the rifle out” six months prior to the April 2017 incident, R., Vol. II, ¶ 8, at
6, and that a plausible inference from her statement was that Mr. Garcia
continuously possessed the rifle on each and every day during the six-month
period preceding the April 2017 incident—that is, for a six-month period falling
between the alleged relevant conduct and the crime of conviction—even if he did
not bring the rifle out, see Aplee.’s Resp. Br. at 17; see id. at 10 (noting that the
girlfriend “reported seeing Mr. Garcia with the rifle six months earlier, indicating
that Mr. Garcia had continuously been possessing illegal firearms for at least half
of the previous year”).
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In our view, the government has the better position. We would be hard
pressed on these facts to conclude that a finding of regularity constitutes error, let
alone clear or obvious error. We need not opine on whether Svacina’s language
actually stands for the proposition that two incidents of unlawful conduct,
standing alone, can display sufficient regularity. This is so because we conclude
that the district court would not have erred in rejecting Mr. Garcia’s reading of
the record with respect to the regularity factor, which limited the universe of
unlawful incidents to two—i.e., the two instances of unlawful possession of
firearms occurring in April 2016 and April 2017. In particular, as the government
suggests, the district court would not have erred in finding based on the
statements of Mr. Garcia’s girlfriend that he unlawfully possessed a firearm each
and every day for a six-month period “between ‘the purported relevant conduct
and the offense of conviction.’” Damato, 672 F.3d at 841 (quoting Rhine, 583
F.3d at 890). And, given that “regular, i.e., repeated, pattern of similar unlawful
conduct,” id., we think it beyond dispute that the district court would not have
erred in determining that there was ample evidence to support a finding of
To be sure, Mr. Garcia vigorously objects to our consideration of the
girlfriend’s statement. Specifically, Mr. Garcia urges us to disregard his
girlfriend’s statement because the district court did not refer to it at sentencing,
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making only a “general reference” to Mr. Garcia’s “continuous course of
conduct.” See Aplt.’s Reply Br. at 8. Further, Mr. Garcia contends that his
girlfriend’s six-months-prior statement concerning his purported display of the
rifle was made at the same approximate time she was “directly contradicting her
earlier statement that Mr. Garcia had his gun out on the date of the charged
incident”—a retraction that “law enforcement disbelieved.” Id. We do not find
these arguments offer a cogent basis for disregarding the girlfriend’s statement.
First, the fact that the district court did not specifically reference the
girlfriend’s statement stands as no obstacle to our considering it in affirming the
court’s ultimate relevant-conduct determination. In this regard, it is axiomatic
that ordinarily we may affirm on “any ground that finds support in the record.”
United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994); accord Richison v.
Ernest Grp., 634 F.3d 1123, 1130 (10th Cir. 2011). Furthermore, it would be
particularly imprudent to infer from the absence of a discussion by the court
concerning the girlfriend’s statement that the court did not rely on it, where it is
undisputed that Mr. Garcia did not challenge the court’s relevant-conduct
determination and, consequently, did not give the court any reason to develop a
record with some particularity regarding the variables underlying its
determination. Cf. United States v. Howard, 784 F.3d 745, 749 (10th Cir. 2015)
(“[F]actual disputes regarding sentencing not brought to the attention of the
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district court do not rise to the level of plain error.”) (quoting United States v.
Lewis, 594 F.3d 1270, 1288 (10th Cir. 2010)); accord Svacina, 137 F.3d at 1187.
Second, Mr. Garcia’s attack on his girlfriend’s credibility does not advance
his cause. He reasons that, if the police did not believe the girlfriend’s retraction
regarding Mr. Garcia’s having the firearm visible on the day of the April 2017
incident, there was not a proper factual basis for the district court to find that her
related statement about his possession of the firearm six months prior was
credible. However, although Mr. Garcia’s girlfriend retracted her statement about
the rifle being visible during the April 2017 incident, officers believed she was
“reluctant to tell them the whole truth” because she was “frightened about what
[Mr. Garcia] might do to her.” R., Vol. II, ¶ 8, at 6. One might reasonably infer
from this that the girlfriend was motivated by a desire to downplay Mr. Garcia’s
criminal conduct when she spoke to the police and that her retraction was a
product of this motivation.
As such, it would be inconsistent with this motivation for the girlfriend to
fabricate a story involving Mr. Garcia’s possession of the rifle six months prior in
order to inculpate him. Such a reading of the record would be questionable at the
very least. It seems much more likely that when the girlfriend told the police
about Mr. Garcia’s prior possession of the rifle, she was offering them, as she
perceived it, the most benign version of the facts concerning his possession of a
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firearm—one suggesting that he had not displayed a firearm during a domesticviolence incident. Thus, the district court would not have erred in deeming the
girlfriend’s statement credible and crediting it in assessing the regularity factor.
We underscore that we need not decide that the only plausible reading of
the record would involve crediting the girlfriend’s statement. It is enough that
crediting this statement is consistent with a plausible reading of the record. See,
e.g., United States v. Piper, 839 F.3d 1261, 1271 (10th Cir. 2016) (“If the ‘court’s
account of the evidence is plausible in light of the record viewed in its entirety,’
we may not reverse it even if we might have weighed the evidence differently.”
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985))); see also
United States v. Cortes-Gomez, 926 F.3d 699, 708 (10th Cir. 2019) (“Where there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” (quoting Anderson, 470 U.S. at 574)). And we
conclude that this reading is plausible. Consequently, the district court—based on
the girlfriend’s statement—would not have erred in finding that Mr. Garcia
unlawfully possessed a firearm each and every day for a six-month period
“between ‘the purported relevant conduct and the offense of conviction.’”
Damato, 672 F.3d at 841 (emphasis added) (quoting Rhine, 583 F.3d at 890).
And this finding would have provided ample evidence for a regularity
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determination. Therefore, the district court did not commit error here, let alone
clear or obvious error.
Finally, Mr. Garcia argues that the time interval between the events of
April 2016 and April 2017 was too great to support a finding of relevant conduct.
It bears noting that even were we to accept Mr. Garcia’s reading of the
record—wherein there are only two unlawful firearms incidents that are separated
by a little less than one year (i.e., in April 2016 and April 2017)—and even were
we to conclude that the district court erred in its regularity determination, Mr.
Garcia’s showing of clear or obvious error would come up short. Mr. Garcia does
not direct us to any controlling authority that has refused to find regularity under
similar circumstances because there were only two unlawful incidents. Instead,
he relies on (1) a Sixth Circuit case, (2) an unpublished District of New Mexico
case, and (3) two Tenth Circuit cases, i.e., Windle and Roederer, where regularity
was present based on five or eight instances of conduct, respectively. This
authority does not establish that the district court would have clearly or obviously
erred on the regularity question. First of all, the cited Tenth Circuit cases lend
Mr. Garcia no succor. The fact that more than two instances of unlawful conduct
were sufficient in Windle and Roederer to establish regularity says virtually
nothing about whether more than two instances would be necessary to show
regularity. See, e.g., United States v. Burkholder, 816 F.3d 607, 620 n.10 (10th
Cir. 2016) (“An event or condition is sufficient if its existence means that another
event or condition will occur. An event or condition is necessary if, in its
absence, another event or condition could not occur.”). Neither by their express
terms nor, as a matter of simple logic, do these cases stand for the latter
proposition (i.e., that more than two instances is necessary). Moreover, as set
forth previously, ordinarily only Supreme Court or Tenth Circuit precedent can
define well-settled law for purposes of the clear-or-obvious standard of the plainerror test, so Mr. Garcia’s reliance on cases from the Sixth Circuit and the New
Mexico district court do not avail him. In sum, even were we to accept Mr.
Garcia’s view of the record, and conclude that the district court’s decision reflects
an erroneous finding regarding the regularity factor, Mr. Garcia would not be able
to make a showing of clear or obvious error.
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Aplt.’s Opening Br. at 13. The government argues that this court has not set a
bright-line rule to follow in evaluating this factor but the “general rule appears to
be that offenses occurring within six months of each other have a strong temporal
link and temporal proximity is sufficient for offenses occurring up to five years
apart if evidence of the other two factors is also present.” See Aplee.’s Resp. Br.
Our most in-depth analysis of temporality came in Damato, where we
considered allegedly relevant conduct that predated the offense conduct by over
None of the cases cited by the government contain such a
lengthy gap between potentially relevant conduct and the
crime of conviction, nor have we discovered any in our
independent research. In fact, we have been unable to
uncover a case holding that conduct even half as temporally
distant qualifies as relevant conduct. The largest time
difference we have observed in the case law is the five-year
interval at issue in Roederer, 11 F.3d 973.
Further, the five-year delay in Roederer appears to be an
outlier. We have described a “fifteen month interval” as
“temporally distant.” United States v. Clark, 415 F.3d 1234,
1242 (10th Cir. 2005). Other circuits have held that temporal
gaps as brief as five months cut against a finding that an
activity was part of the same course of conduct as the offense
of conviction. See United States v. Hahn, 960 F.2d 903,
910–11 (9th Cir. 1992) (five-month gap is “relatively
remote”); See also United States v. McGowan, 478 F.3d 800,
802 (7th Cir. 2007) (eight-month “gap is long enough to cast
doubt on the relevance of the earlier conduct”); United States
v. Ortiz, 431 F.3d 1035, 1041 (7th Cir. 2005) (ten-month “gap
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suggests the lack of a common plan or course of conduct”);
United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir. 1992)
(temporal proximity factor “extremely weak . . . if present at
all, as the uncharged conduct took place over six months prior
to the two phone calls underlying the offense of conviction”).
And courts have repeatedly held that temporal proximity is
lacking or that conduct is very remote when the interval
exceeds one year. See United States v. Kulick, 629 F.3d 165,
171, 172 (3d Cir. 2010) (twenty-seven month interval is
“substantial” and “temporally remote”); [United States v.]
Hill, 79 F.3d [1477,] 1484 [(6th Cir. 1996)] (“[W]e find that
temporal proximity is extremely weak in that nineteen months
is an exceedingly long lapse between offenses.”); United
States v. Sykes, 7 F.3d 1331, 1337 (7th Cir. 1993) (temporal
gap of fourteen months “tends to indicate conduct that can
easily be separated into discrete, identifiable units rather than
behavior that is part of the same course of conduct”
The Fifth Circuit accurately summarized the bulk of the case
law in stating: “Various courts have found that a period of
separation of over one year negated or weighed against [a
finding of] temporal proximity.” United States v. Wall, 180
F.3d 641, 646 (5th Cir. 1999). With this consensus in mind,
it clearly follows that the thirteen-year interval between the
1990 transaction and Damato’s offense of conviction is
extraordinary. Given this extreme lack of temporal proximity,
the 1990 transaction may not be treated as relevant conduct
unless one of the other factors—regularity or similarity—is
“authoritatively present.” United States v. Miller, 179 F.3d
961, 967 n. 10 (5th Cir. 1999); See U.S.S.G. § 1B1.3 app.
n.9(B) (“When one of the above factors is absent, a stronger
presence of at least one of the other factors is required.”).
672 F.3d at 840–41 (emphasis added) (footnote omitted).
Even under the reading of the record most favorable to Mr. Garcia—which
we accept for purposes of analyzing the temporal-proximity factor—the operative
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gap of time is a little less than one year, specifically, the period between the April
2016 incident and the April 2017 offense of conviction.
11 Guided by Damato, we
have no difficulty concluding that, at the very least, the district court would not
have clearly or obviously erred in finding that this gap was not too remote. In
other words, it would not have been clear or obvious error for the court to find
that the temporal gap between the two events was sufficiently close to support a
In particular, Mr. Garcia has cited no controlling precedent from the
Supreme Court or the Tenth Circuit that establishes that a temporal gap of nearly
one year would eviscerate, as a matter of law, a showing of temporal proximity.
And we are not aware of any. This effectively sounds the death knell for his
temporal-proximity challenge on plain-error review. See Ruiz-Gea, 340 F.3d at
11 The government briefly suggests that the relevant temporal gap may
be less than one year because the “evidence indicates that [Mr. Garcia] continued
to illegally possess firearms less than six months after his 2016 arrest.” Aplee.’s
Resp. Br. at 20. Presumably, the government is alluding to the testimony of Mr.
Garcia’s girlfriend that Mr. Garcia had “the rifle out” six months prior to the
April 2017 incident. R., Vol. II, ¶ 8, at 6. However, the government does not
develop this argument, and it would be improper for us to flesh it out.
Accordingly, we are disinclined to comment on the merits of it. Cf. United States
v. Ray, 899 F.3d 852, 858 (10th Cir. 2018) (ruling that party who “fails to develop
or provide any authority” in support of his argument “waived” it), cert. denied,
139 S. Ct. 1206 (2019); Sports Racing Serv., Inc. v. Sports Car Club of Am., Inc.,
131 F.3d 874, 880 (10th Cir. 1997) (deeming “waived” claims that plaintiffs
“never developed”). In any event, for reasons explicated infra, even under the
view of the record most favorable to him, Mr. Garcia cannot prevail under the
applicable plain-error standard.
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1187; accord Thornburgh, 645 F.3d at 1208. But, making matters worse for Mr.
Garcia, the federal circuit courts have no uniform view that is favorable to him
concerning when the temporal gap is too wide to support a same-course-ofconduct determination. See United States v. Wolfname, 835 F.3d 1214, 1221
(10th Cir. 2006) (“[W]e agree that if neither this court nor the Supreme Court has
directly addressed a particular issue, then a circuit split on that issue weighs
against a finding of plain error.” (emphasis added)); United States v. Teague, 443
F.3d 1310, 1319 (10th Cir. 2006) (“If neither the Supreme Court nor the Tenth
Circuit has ruled on the subject, we cannot find plain error if the authority in
other circuits is split.” (emphasis added)). To the contrary, as Damato indicates,
the “consensus” among our sister circuits actually undercuts Mr. Garcia’s position
because it only deems impermissible temporal gaps that exceed one year. 672
F.3d at 841. And, of course, under Mr. Garcia’s reading of the record, the
temporal gap here is a little less than one year.
We recognize that Mr. Garcia marshals our decision in United States v.
Cuthbertson, 138 F.3d 1325 (10th Cir. 1998). There, we affirmed a district
court’s finding that a 1995 state sexual-battery offense was not relevant conduct
to a 1994 federal conviction of transporting a juvenile in interstate commerce
with intent to engage in criminal sexual activity because “these two acts occurred
on different occasions, separated by a temporal gap of almost a year, and involved
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‘multiple, separate instances of fear and harm.’” Id. at 1327 (citing U.S.S.G.
§ 3D1.2 cmt. n.4). However, the Cuthbertson panel expressly ruled that the samecourse-of-conduct framework was not applicable in that case because the
defendant’s federal offense was not groupable and, thus, took a different
analytical route through the relevant-conduct rubric than we do here. Id.
Therefore, Cuthbertson is inapposite.
In sum, even under his view of the record, Mr. Garcia cannot demonstrate
that a finding of temporal proximity would constitute clear or obvious error.
Based on the foregoing analysis, we conclude that the district court did not
commit reversible error under the plain-error rubric in determining that the April
2016 incident was relevant conduct with regard to the April 2017 incident—i.e.,
the incident giving rise to Mr. Garcia’s felon-in-possession conviction. The
Guidelines commentary contemplates that, if one of the three factors that it
specifies is “absent” that courts may nevertheless determine that the conduct at
issue is relevant conduct under the same-course-of-conduct standard, if there is “a
stronger presence of at least one of the other factors.” U.S.S.G. § 1B1.3 cmt.
n.5(B)(ii); see Damato, 672 F.3d at 841 (“Given this extreme lack of temporal
proximity, the 1990 transaction may not be treated as relevant conduct unless one
of the other factors—regularity or similarity—is ‘authoritatively present.’”
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(emphasis added) (quoting Miller, 179 F.3d at 967 n.10)). However, we have no
need to conduct such a strong-presence assessment here because, at the very least,
the district court would not have clearly or obviously erred in finding that all
three factors were present.
In sum, concerning the district court’s relevant-conduct determination, Mr.
Garcia cannot demonstrate, as he must, that the court erred under the plain-error
rubric. Therefore, we reject this challenge to the court’s sentence. We now turn
to Mr. Garcia’s remaining sentencing challenge.
Mr. Garcia also argues that his ninety-six-month sentence is substantively
unreasonable. We review a sentence “for reasonableness, giving deference to the
district court under ‘the familiar abuse-of-discretion standard.’”
12 United States
v. Gambino-Zavala, 539 F.3d 1221, 1227 (10th Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 46 (2007)). More specifically, “[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).” United States v. Sample, 901 F.3d 1196, 1199 (10th Cir. 2018)
(quoting United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009)), cert.
12 A defendant need not object in district court to mount a substantivereasonableness challenge on appeal. United States v. Vasquez-Alcarez, 647 F.3d
973, 976 (10th Cir. 2011).
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denied, 139 S. Ct. 1545 (2019); accord United States v. Barnes, 890 F.3d 910,
915 (10th Cir. 2018).
We will find an abuse of discretion only if the sentence “exceeded the
bounds of permissible choice,” 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)); that is, a defendant must show that the sentence was “arbitrary,
capricious, whimsical, or manifestly unreasonable,” United States v. DeRusse, 859
F.3d 1232, 1236 (10th Cir. 2017) (quoting United States v. Gantt, 679 F.3d 1240,
1249 (10th Cir. 2012)); cf. Gall, 552 U.S. at 51 (noting the district court’s
“superior position to find facts and judge their import under § 3553(a)”).
“We do not apply ‘a rigid mathematical formula that uses the percentage of
a departure [or variance] as the standard for determining the strength of the
justifications required for a specific sentence.’” Sample, 901 F.3d at 1199
(quoting Gall, 552 U.S. at 47). However, the magnitude of the variance “remains
a consideration on appeal.” United States v. Smart, 518 F.3d 800, 807 (10th Cir.
2008); see also Gall, 552 U.S. at 50 (describing it as “uncontroversial that a
major departure should be supported by a more significant justification than a
Mr. Garcia challenges on two grounds the substantive reasonableness of his
ninety-six-month sentence (recall that the Guidelines range was forty-six to fifty38
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seven months’ imprisonment).
11 First, he contends that the district court relied
“central[ly]” on “its view of [his] criminal history as continuous and violent.”
See Aplt.’s Opening Br. at 19. However, this assessment is not supported by the
record. As Mr. Garcia reasons, his “troubling violent criminal episodes” were
limited to his teenage years, and, within the fifteen years preceding his instant
offense, his only non-traffic-related convictions were for drug possession and
possession of stolen firearms. Id. at 19–20. He contends that, in taking into
consideration the crimes from Mr. Garcia’s “teenaged years” and early adulthood,
in formulating its characterization of his history as “violent,” the district court
11 Because we have rejected Mr. Garcia’s arguments concerning the
calculation of the Guidelines range, then the range that the court calculated and
the actual sentence that the court ultimately imposed are the relevant comparators.
We also observe that, although Mr. Garcia characterizes his actual sentence as
“more than twice” or “more than double” a low-end Guidelines sentence, Aplt.’s
Opening Br. at 18, 21, we typically compare the high end of the Guidelines range
to the actual sentence imposed in doing our substantive-reasonableness analysis,
see United States v. Valtierra-Rojas, 468 F.3d 1235, 1240 (10th Cir. 2006)
(“Looking to only the percentage of the divergence – 122% above the high end of
the range – the sentence might seem extreme.”); United States v. Mateo, 471 F.3d
1162, 1170 (10th Cir. 2006) (“Here, the District Court increased Mr. Mateo’s
sentence by 471% above the high end of the advisory range of 21 months—more
than eight years longer than he would serve if he was sentenced in accordance
with the advisory Guidelines.”); United States v. Bishop, 469 F.3d 896, 908 (10th
Cir. 2006) (“The comparative difference between Mr. Bishop’s sentence of 78
months and the advisory range maximum of 57 months is a 37% increase.”),
overruled in part on other grounds by Gall, 552 U.S. at 47, as recognized by
United States v. Joel Miller, 891 F.3d 1220, 1234 (10th Cir. 2018). Here, the
district court’s sentence exceeded the high end of the Guidelines range by thirtynine months—that is, an increase of approximately sixty-eight percent over the
high end of Guidelines range.
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effectively expressed “a policy disagreement” with the Guidelines, which limit
how far back a sentencing court can go in assigning criminal-history points to
“convictions for purposes of recidivist enhancements.” Id. at 20. Consequently,
he contends that the court’s variance—which ostensibly is “grounded in” this
disagreement—“should be subject to a heightened level of review.”
United States v. Lente, 323 F. App’x 698, 715 (10th Cir. 2009) (per curiam)
(unpublished) (Holmes, J., concurring) (noting that, “in some instances,” Supreme
Court authority holds that “decisions of sentencing courts to deviate from the
Guidelines based upon policy disagreements will be subject to a heightened level
of review”), abrogated on other grounds by United States v. Story, 635 F.3d 1241
(10th Cir. 2011)).
We are unpersuaded. Mr. Garcia overstates the importance that the district
court attached to the remote, violent events in his criminal history. Indeed, the
court did not have to rely on remote events to validate its concern that Mr. Garcia
was prone to violence and, on this basis, a danger to the public. Indeed, Mr.
Garcia’s April 2017 arrest, which formed the basis for his conviction, occurred
In his reply brief, Mr. Garcia shifts position, contending that the
district court’s policy disagreement was with the stringent requirements to qualify
for a fifteen-year mandatory-minimum sentence under the ACCA and that “the
district court’s disagreement with these limitations does not provide a valid basis
for a variance.” Aplt.’s Reply Br. at 13. We deem this “late-blooming
argument,” however, to be waived. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir.
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during a “relatively violent episode” where a firearm was present and he appeared
to be either “planning for” or “at least equipped for” a shootout. R., Vol. III, at
Moreover, the true central focus of the court’s analysis was Mr. Garcia’s
longstanding, flagrant, and serious disregard for the law and, more specifically,
the fact that this lawlessness posed a particular danger to the public. As to that
danger, the court noted Mr. Garcia’s repeated, unlawful possession of inherently
dangerous firearms and apparent mental-health problems. A brief excerpt of the
court’s remarks makes the point:
[W]e have had multiple instances of [Mr. Garcia] dealing with
guns over an extended period of time and all subsequent to an
early felony conviction many years ago, [which] suggests to me
that we have a very serious set of circumstances here because, as
counsel for the [g]overnment has suggested, there has been a
long, more or less continuous history of law-breaking by [Mr.
But it appears that throughout virtually the entire period of
his adult life, when he’s committed these other crimes, he’s also
had guns around. So this circumstance here is, in my view, a
very serious offense.
I’m required to consider [Mr. Garcia’s history]. The most
pertinent thing, of course, is that he does have a long, pretty
much continuous history of breaking the law, criminal
convictions for one thing or another.
. . . .
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[Mr. Garcia] appears to have mental health issues of some
sort, at least in the sense of anger management – maybe more
serious than that – that also, I think, contributes to the
seriousness of what we’re dealing with here.
[The government] has mentioned the factor that I think is
probably the most important of the statutory factors. In some
cases, it’s not the most important, but here I think it probably is.
That’s the need to protect the public from further crimes of [Mr.
Id. at 63–64 (emphases added).
Thus, as this quotation illustrates, the court’s central focus was not Mr.
Garcia’s remote crimes of violence per se, but rather his longstanding pattern of
flagrant and serious disregard for the law of which those crimes were a part. In
that vein, although the court did expressly note that Mr. Garcia’s criminal history
indicated that “some of [his] convictions [were] for violent conduct,” reflecting
“a very serious streak of violent conduct,” the court did not lose sight of the fact
that these violent episodes were “a part of the broader range of criminal activity”
that Mr. Garcia perpetrated over many years. Id.
Taking into consideration Mr. Garcia’s longstanding pattern of flagrant and
serious disregard for the law—frequently including his unlawful possession of
firearms—and the record evidence (recounted supra) concerning his seemingly
serious mental-health problems, we find that the district was not unreasonable in
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reaching the conclusion that the public needed to be protected from Mr. Garcia by
a lengthy term of imprisonment:
So I think there is a substantial need to protect the public
from the risk of further criminal activity of [Mr. Garcia], partly
reflected by the repetitive nature of his criminal activity
generally, but also from the repetitive nature of these situations
where he’s illegally possessing a firearm and, in some cases, it
appears, using it. So all of that adds to the seriousness here.
Id. at 64–65 (emphasis added).
Furthermore, insofar as the district court did take into account, in imposing
its upward variance, the fact that Mr. Garcia’s Guidelines criminal-history score
did not fully reflect the length and severity of his youthful criminal record, the
court would not have been expressing a policy disagreement with the Guidelines.
Indeed, the drafters of the Guidelines themselves have recognized that their
criminal-history computation scheme may not always fully reflect the seriousness
of an offender’s criminal background and that, in such circumstances, action to
elevate sentences above the otherwise applicable Guidelines range may be
appropriate. U.S.S.G. § 4A1.3 (“If reliable information indicates that the
defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes, an upward departure may be warranted.”
(emphases added)). Instead of disagreeing with the Guidelines, the court would
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have been endeavoring to faithfully discharge its statutory responsibility to
ensure, among other things, that Mr. Garcia’s sentence has the effect of
“protect[ing] the public from further crimes.” 18 U.S.C. § 3553(a)(2)(C); see
United States v. Shaw, 471 F.3d 1136, 1141 (10th Cir. 2006) (“[W]here the court
concludes that the Guidelines inadequately reflect a defendant’s criminal history
or the seriousness of the offense, a deviation may be appropriate.”); see also
United States v. Adams, 751 F.3d 1175, 1183 (10th Cir. 2014) (“[I]nsofar as
Defendant is contending that the district court improperly varied upward in
increasing his sentence, our response can be brief. For the reasons expressed by
the district court—particularly Defendant’s history of repeated criminal
offenses—his sentence satisfied the reasonableness standard for substantive
review of a sentence.”). Thus, Mr. Garcia’s assertion that the district court
effectively acted on a policy disagreement with the Guidelines is without merit,
and we reject his related call for the application of a heightened level of review of
the court’s upward variance. In sum, for the foregoing reasons, we find Mr.
Garcia’s first argument unpersuasive.
His second argument fares no better. Relying on statistics from the United
States Sentencing Commission, Mr. Garcia asserts that his sentence was “far
outside the norm” and suggests that it creates an unwarranted disparity with
nationwide sentences of offenders convicted of similar firearms offenses. Aplt.’s
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Opening Br. at 22 (citing 18 U.S.C. § 3553(a)(6)); see also id. at 23 (“These
statistics demonstrate that the upward variance in this case was both unusual and
unusually long.”). Specifically, referencing fiscal year 2017, Mr. Garcia
highlights the following: (1) the median sentence for firearms offenders in the
Tenth Circuit was forty months, with a mean sentence of fifty-nine months; (2)
only sixty offenders, or one percent of all defendants sentenced in the Tenth
Circuit, received any upward variance; and (3) nationally, the median sentencing
increase above the Guidelines range for firearms defendants receiving a variance
under § 3553 was twenty-one months, or 31.6 percent above the Guidelines range.
Id. at 22.
It is unquestionably true that under § 3553(a)(6), a sentencing court must
consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” 18 U.S.C.
3553(a)(6) (emphasis added). And we have specifically noted that “[t]he need to
avoid unwarranted disparities is a critical sentencing factor.” United States v.
Lente, 647 F.3d 1021, 1039 (10th Cir. 2011). However, Mr. Garcia’s statistics do
not advance his cause.
Insofar as he relies on statistics stemming only from Tenth Circuit
sentences, his argument plainly does not implicate the kind of disparities that
§ 3553(a)(6) seeks to avoid—that is, nationwide disparities. See United States v.
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Franklin, 785 F.3d 1365, 1371 (10th Cir. 2015) (“The purpose of the sentencing
guidelines is ‘to eliminate disparities among sentences nationwide.’” (quoting
United States v. Zapata, 546 F.3d 1179, 1194 (10th Cir. 2008))); accord Adams,
751 F.3d at 1183; Damato, 672 F.3d at 848.
And, to the extent that he offers nationwide statistics, as the government
rightly suggests, Mr. Garcia does not place them in a meaningful “context.”
Aplee.’s Resp. Br. at 27. Specifically, as its plain terms indicate, the pertinent
comparators under § 3553(a)(6) are similarly situated defendants, and Mr.
Garcia’s bare national statistics do not shed light on the extent to which the
sentences that the statistics pertain to involve defendants that are similarly
situated to Mr. Garcia. See, e.g., United States v. Joubert, 778 F.3d 247, 256 (1st
Cir. 2015) (“By pointing to national statistics, Joubert compares the sentence for
his unique offense to the average sentence for others convicted under the same
federal statute. A range of conduct is covered under criminal statutes like 18
U.S.C. §§ 2251(a) [and] 2252A(a)(5)(B). This comparison is thus unhelpful for
determining the substantive reasonableness of Joubert’s sentence for his unique
crime.”). In particular, his national statistics do not reveal what percentage of
those defendants have a similar criminal background to Mr. Garcia’s—notably,
whether those defendants have been involved in a similar longstanding pattern of
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flagrant and serious lawbreaking, which not infrequently involved unlawful
possession of inherently dangerous firearms.
Here, the district court correctly computed and carefully considered the
Guidelines range and, in doing so, “necessarily gave significant weight and
consideration to the need to avoid unwarranted disparities.” Franklin, 785 F.3d at
1371 (quoting Gall, 552 U.S. at 59); accord United States v. Gantt, 679 F.3d
1240, 1249 (10th Cir. 2012). And, in light of Mr. Garcia’s extensive and
troubling criminal history, we conclude that the court “reasonably believed that
Defendant’s criminal history was more serious than his guidelines range would
indicate.” Adams, 751 F.3d at 1183. Moreover, the court’s explanation leaves us
with no doubt that the length of the non-Guidelines sentence that it imposed on
Mr. Garcia was reasonably calculated to be “sufficient, but not greater than
necessary” to satisfy the sentencing considerations embodied in § 3553(a)(2), see
18 U.S.C. § 3553(a)—notably, the need “to protect the public from further crimes
of [Mr. Garcia],” id. § 3553(a)(2)(C). In other words, we conclude that the
district court did not abuse its discretion in sentencing Mr. Garcia and that his
sentence is substantively reasonable.
Outcome: In light of the foregoing, we reject Mr. Garcia’s challenges and AFFIRM