                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 27, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 13-2050
 v.                                          (D.Ct. No. 2:12-CR-02315-JGC-1)
                                                         (D. N.M.)
 PAUL SANCHEZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Appellant Paul Sanchez pled guilty to one count of escape from government

custody in violation of 18 U.S.C. § 751(a). He now appeals his sentence on


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
grounds the district court improperly applied a five-level sentencing enhancement

for making a threat of force against another after he escaped a halfway house. In

support of his argument, he claims the district court inappropriately relied on

hearsay in determining he made such a threat and improperly considered his

escape to be a continuing offense. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Sanchez’s sentence.

                       I. Factual and Procedural Background

      On January 9, 2006, Mr. Sanchez received a seventy-two-month sentence

for distribution of cocaine. After serving six years in a federal prison, authorities

transferred him to a halfway house in Las Cruces, New Mexico, to serve out his

sentence. On March 24, 2012, Mr. Sanchez signed out for work but did not

return. Two days later, United States Marshals interviewed his ex-girlfriend, Ms.

Smith, who stated Mr. Sanchez contacted her, stating he was drunk and asking for

a ride to a local motel to sleep it off; she explained she drove him there but had

not since heard from him. At the motel, the marshals learned Ms. Smith had paid

for his room and Mr. Sanchez left the next day. On further inquiry, Ms. Smith

admitted she paid for the room but she had not told them more because she was

afraid of Mr. Sanchez hurting her. She then played for them a voice mail message

from Mr. Sanchez, telling her to help him leave town or he would “burn her shop

down.” The parties agree this message came two days after she dropped Mr.

Sanchez at the motel. The marshals arrested Mr. Sanchez several weeks later in

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Carlsbad, New Mexico.

      Following the district court’s acceptance of Mr. Sanchez’s guilty plea

agreement, a probation officer prepared a presentence report, calculating his

sentence under the applicable 2012 United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”). The probation officer set Mr. Sanchez’s base

offense level at 13, pursuant to U.S.S.G. § 2P1.1, for his escape offense and

increased it five levels, pursuant to U.S.S.G. § 2P1.1(b)(1), for his threat of force

against Ms. Smith. He then reduced the five-level offense increase by four levels

under U.S.S.G. § 2P1.1(b)(3), because his escape involved his leaving a non-

secure halfway house, and further reduced his offense level by two levels for

acceptance of responsibility, resulting in a total offense level of 12. An offense

level of 12, together with a criminal history category of VI, resulted in a

recommended Guidelines range of thirty to thirty-seven months imprisonment.

      Mr. Sanchez filed a sentencing memorandum, objecting only to the five-

level increase in his offense level in conjunction with § 2P1.1(b)(1) for threat of

force during his escape, claiming he never threatened Ms. Smith and she

exaggerated the truth when speaking to the authorities. He also requested a

variant sentence of twelve months, contending his criminal history over-

represented the seriousness of his past criminal conduct and pointing to his

personal history and characteristics, including his unstable childhood.

      At sentencing, Mr. Sanchez’s counsel again objected to the five-level

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offense increase but explained an evidentiary hearing might not be warranted,

stating, “[w]hat I can proffer to the Court is that on the 24th of March of last year

Ms. Smith gave a ride to Mr. Sanchez away from the ... Halfway House.

Subsequent to that time, Ms. Smith received a recording in her voice mail of a

threatening nature from Mr. Sanchez.” His counsel then argued the five-level

increase should not apply for this threat because he did not make the threat to

achieve escape, which had already occurred when he left the halfway house, and

because he did not threaten someone at the halfway house to aid in his escape.

      In overruling the objection, the district court determined “escape” is a

continuing offense; Mr. Sanchez clearly threatened Ms. Smith; and U.S.S.G.

§ 2P1.1(b)(1) covers any threat made during an ongoing escape, including the one

he made to gain her assistance while at large. After hearing Mr. Sanchez’s

allocution, the district court imposed a below-Guidelines-range sentence of

twenty months incarceration in conjunction with the 18 U.S.C. § 3553(a)

sentencing factors.

                                    II. Discussion

      In his appeal, Mr. Sanchez continues to claim the district court improperly

applied a five-level sentencing enhancement under U.S.S.G. § 2P1.1(b)(1) for

making a threat of force against another during his escape. In support, he

continues to argue the district court improperly considered his escape to be a

continuing offense and, for the first time on appeal, contends it inappropriately

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relied on hearsay contained in the presentence report, which included the erased

voice mail tape and the statements of marshals on its content who were not

available to testify at the sentencing hearing. The government opposes the

appeal.

      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802-03, 805 (10th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component ... as well as a substantive component,

which relates to the length of the resulting sentence.” Id. at 803. Procedural

reasonableness addresses, in part, whether the district court incorrectly calculated

the Guidelines sentence and relied on clearly erroneous facts. See United States

v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). In determining whether the

district court properly calculated a defendant’s sentence, we generally review its

legal conclusions de novo and its factual findings for clear error. See United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

      Applying these principles, we must determine if the district court

improperly calculated Mr. Sanchez’s sentence by applying the five-level

enhancement under § 2P1.1(b)(1), thereby affecting the calculation of his

Guidelines range and resulting in a procedurally unreasonable sentence. Section

2P1.1, titled “Escape, Instigating or Assisting Escape,” recommends an offense

level increase of five “[i]f the use or the threat of force against any person was

                                         -5-
involved.” U.S.S.G. § 2P1.1(b)(1). Both we and the Supreme Court have held

“escape” is a continuing offense until the escapee is returned to custody. See

United States v. Bailey, 444 U.S. 394, 413 (1980); United States v. Brown, 314

F.3d 1216, 1224 (10th Cir. 2003). As such, Mr. Sanchez was still in the course of

committing the offense of escape when he contacted and threatened Ms. Smith.

This is particularly applicable, not only because escape is considered a continuing

offense while Mr. Sanchez remained at large, but because, in this instance, he not

only asked Ms. Smith to help him leave the halfway house but called her again to

help him continue his escape in leaving the city of Las Cruces, where he must

have known authorities were looking for him. As a result, our de novo review

establishes the district court made the proper legal conclusion with respect to the

ongoing nature of Mr. Sanchez’s escape.

      As to the hearsay evidence supporting Mr. Sanchez’s threat of force against

Ms. Smith, we note Mr. Sanchez and his counsel did not object to such hearsay

evidence as contained in the presentence report nor make a contemporaneous

objection after the district court discussed the hearsay nature of the evidence

supporting the threat of force enhancement. While we review a district court’s

legal conclusions de novo and its factual findings for clear error, see Kristl, 437

F.3d at 1054, we review for plain error when, like here, a defendant fails to raise

an argument in the district court, see United State v. Ventura-Perez, 666 F.3d 670,




                                         -6-
674 (10th Cir. 2012). 1

      However, regardless of whether we apply clear or plain error review, Mr.

Sanchez cannot prevail. First, the circumstances surrounding the voice mail,

including the marshals’ verification of the threat to Ms. Smith after listening to

the recording, were in the presentence report, to which Mr. Sanchez did not

object. Further, at the sentencing hearing, his counsel suggested an evidentiary

hearing was unnecessary based on a proffer that two days after giving Mr.

Sanchez a ride to the motel, “Ms. Smith received a recording in her voice mail of

a threatening nature from Mr. Sanchez.” A sentencing court may rely on a wide

array of relevant information, including hearsay evidence containing a minimal

indicia of reliability, see United States v. Browning, 61 F.3d 752, 755 (10th Cir.

1995), as well as un-objected-to facts in a presentence report, see United States v.

Delossantos, 680 F.3d 1217, 1219 n.1 (10th Cir. 2012). Accordingly, while the

threat on the erased voice mail, as verified by unavailable marshals, may

constitute hearsay evidence, Mr. Sanchez’s failure to object to such evidence in

the presentence report, together with his counsel’s verification such a threat was

made, gives it the requisite indicia of reliability for the district court to rely on it

for the purpose of applying the five-level enhancement. As a result, the district

      1
         To establish plain error, the defendant has the burden of establishing: (1)
an error occurred; (2) that was plain; and (3) which affected his substantial rights.
Id. If these conditions are met, he must show the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. See Ventura-
Perez, 666 F.3d at 674.

                                           -7-
court reasonably concluded Mr. Sanchez made a threat of force during his

ongoing or continuing escape, supporting a five-level enhancement under

U.S.S.G. § 2P1.1(b)(1). Because the district court properly calculated Mr.

Sanchez’s sentence and sentenced him within the applicable Guidelines range, his

sentence is presumptively reasonable, and he has not otherwise rebutted this

presumption by demonstrating his sentence is unreasonable in light of the

sentencing factors in § 3553(a). See Kristl, 437 F.3d at 1053-54.

                                 III. Conclusion

      For these reasons, we AFFIRM Mr. Sanchez’s sentence.

                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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