                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          February 27, 2020
                                                                           Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                              Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                                No. 18-1468
 v.

 DANIEL LOVATO,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:18-CR-00213-RM-1)
                       _________________________________

John C. Arceci, Assistant Federal Public Defender (Shira Kieval, Assistant Federal Public
Defender, and Virginia L. Grady, Federal Public Defendant, on the briefs), Office of the
Federal Public Defender for the Districts of Colorado and Wyoming, Denver, CO, for the
Appellant Daniel Lovato.

Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney,
with him on the brief), Office of the United States Attorney for the District of Colorado,
Denver, CO, for the Appellee.
                         _________________________________

Before BACHARACH, KELLY, and CARSON, Circuit Judges.
                 _________________________________

CARSON, Circuit Judge.
                    _________________________________

       This action arose out of the district court’s admission of a 911 call under the

present sense impression exception to the rule against hearsay. Defendant Daniel
Lovato (“Defendant”) alleges that, in doing so, the district court abused its

discretion. 1 Following admission of the 911 call, a jury convicted Defendant of two

counts of being a felon in possession of a firearm or ammunition. The district court

merged the two counts of conviction, and sentenced Defendant to 100 months’

imprisonment followed by three years of supervised release. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm Defendant’s conviction.

                                           I.

      On March 3, 2018, a man called 911 to report that he witnessed two men in a

Honda shoot at another car. The caller followed the Honda and dialed 911 within

“two to three minutes” of observing the gunfire. 2 During the approximately thirteen-

minute 911 call, the caller discussed the shooting, his continuing observations of the

Honda and its occupants, and his safety, often in response to the 911 operator’s

questions.

      The caller began the call by stating that occupants of the Honda “just shot at”

another car. After providing his location, phone number, and name to the 911

operator, the caller again described his observations of the shooting less than one

minute into the call. Specifically, the caller stated that he observed two Hispanic

males in the Honda shoot at a white Durango. Less than three minutes into the call,



      1
        Defendant presented two collateral issues related to his sentence, both of
which the parties now agree that our recent opinions resolve.
      2
       In quoting the 911 call, we rely on the audio recording of the call on file.
The recording does not differ materially from the written transcript of the 911 call.
                                           2
the caller informed the 911 operator that the shooting occurred “five or six minutes

ago.”

        While the caller continued to follow the Honda, he conveyed additional

information of his observations of the Honda. The 911 operator returned the

conversation to the shooting about five minutes into the call—seven to eight minutes

after the shooting occurred. The caller responded that someone in the Honda fired

“two shots,” and provided the exact location of the shooting. Just over eight minutes

into the call, the 911 operator asked for a description of the suspects, which the caller

provided. The caller next stated that the passenger of the Honda was the shooter.

Finally, the caller observed the Honda run a red light, at which point he lost sight of

the Honda. The caller provided his address to the 911 operator and, with the Honda

then out of sight, ended the call after about thirteen minutes.

        Shortly thereafter, responding police officer Levi Braun (“Officer Braun”)

located a Honda matching the caller’s description. With Officer Braun in pursuit, the

Honda slowed down and Defendant jumped out of the passenger’s side of the moving

car. Officer Braun stopped to detain Defendant, who volunteered that he had a gun

on him. Officer Braun then retrieved a .22 caliber pistol from Defendant’s

waistband, along with thirty-two rounds of .22 caliber ammunition from Defendant’s

left front pants pocket. The pistol had a spent shell casing in the chamber, which

indicated that someone recently fired the weapon. Officer Braun also located a

canister filled with more ammunition in the street near Defendant. Defendant told



                                            3
officers that the driver of the Honda gave him the gun and ammunition, pointed a

second gun at him, and threatened to shoot him if he did not jump out of the car.

      At the time of this incident, Defendant had prior felony convictions. The

government ultimately charged Defendant with three violations of the 18 U.S.C.

§ 922(g)(1) for being a felon in possession of a firearm or ammunition: one each for

possessing the .22 caliber pistol, thirty-two rounds of .22 caliber ammunition, and

canister full of additional ammunition.

      At trial, Defendant objected to the admission of the 911 call on hearsay

grounds. The district court overruled the objection and admitted the 911 call into

evidence under the present sense impression exception to the rule against hearsay.

The district court concluded “that the length of the call, and the continuous

discussion is [not] such that it destroys the contemporaneousness” required to qualify

as a present sense impression. The district court based its conclusion on a finding

that the call was “essentially, a continuous conversation” about “the same continuing

event.” The government played the 911 call for the jury.

      Although Defendant admitted to possessing the .22 caliber pistol and

ammunition, he raised the affirmative defense of duress caused by the driver’s threat.

Defendant further claimed that the driver was the one who shot at the other car. The

911 call contradicted significant aspects of Defendant’s testimony. The jury




                                           4
ultimately convicted Defendant on two counts of violating 18 U.S.C. § 922(g)(1) for

possession of the .22 caliber pistol and ammunition in his pants pocket. 3

      After granting Defendant’s motion to merge the two counts of conviction, the

district court sentenced Defendant to 100 months’ imprisonment. 4 The district court

also imposed a three-year term of supervised release with special conditions

following Defendant’s release from prison. Of note, the third special condition of

supervised release (“Special Condition Three”) requires Defendant to “take all

medications that are prescribed by [his] treating psychiatrist” and “cooperate with

random blood tests” to demonstrate compliance with the condition. Defendant now

appeals.

                                          II.

      Defendant contends the district court abused its discretion by admitting the

911 call over his hearsay objection. Specifically, Defendant argues the 911 call does

not qualify under the present sense impression exception to the rule against hearsay.

      “We review the district court’s evidentiary rulings for an abuse of discretion,

considering the record as a whole.” United States v. Trujillo, 136 F.3d 1388, 1395

(10th Cir. 1998). “Because hearsay determinations are particularly fact and case



      3
      The jury acquitted on the third count of being a felon in possession of
ammunition regarding the ammunition canister.
      4
        Over Defendant’s objection, the district court found that Defendant had two
prior convictions for crimes of violence, and correctly calculated Defendant’s
guideline sentencing range to be 100 to 125 months based on a total offense level of
24.
                                           5
specific, we afford heightened deference to the district court when evaluating hearsay

objections.” Id.

      “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” United States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009) (quoting

Fed. R. Evid. 801(c)). Under Federal Rule of Evidence (“Rule”) 802, hearsay is

inadmissible, subject to certain exceptions. Fed. R. Evid. 802. A declarant’s

“present sense impression” qualifies as one such exception. Fed. R. Evid. 803(1).

      Under Rule 803(1), “[a] statement describing or explaining an event or

condition, made while or immediately after the declarant perceived it” is admissible

as an exception to the rule against hearsay, regardless of whether the declarant is

available as a witness. Id. “In evidence law, we generally credit the proposition that

statements about an event and made soon after perceiving that event are especially

trustworthy because ‘substantial contemporaneity of event and statement negate the

likelihood of deliberate or conscious misrepresentation.’” Navarette v. California,

572 U.S. 393, 399–400 (2014) (quoting Fed. R. Evid. 803(1) advisory committee’s

notes to 1972 proposed rules (emphasis added)). “Unsurprisingly, 911 calls that

would otherwise be inadmissible hearsay have often been admitted on those

grounds.” Id. at 400 (analogizing to the present sense impression exception in a

Fourth Amendment case). Defendant argues that: (1) the district court abused its

discretion by analyzing the 911 call as a whole and (2) the caller’s statements were



                                            6
not sufficiently contemporaneous to qualify as present sense impressions. 5 We

address Defendant’s arguments in turn.

                                            A.

       We start by addressing the manner in which the district court considered the

admissibility of the 911 call. On this issue, we conclude that the district court

properly analyzed the 911 call as a whole because: (1) no authority requires

otherwise in this context, (2) all the statements made within the call pertain to the

same temporal event without a substantial change in circumstances, and (3) other

relevant factors support the reliability of the statements within the call.

       No authority creates a blanket requirement that a court must individually

analyze each statement within a broader narrative under the present sense impression

exception. Indeed, we have affirmed the admission of entire 911 calls as present

sense impressions without requiring such a particularized inquiry. See United States

v. Allen, 235 F.3d 482, 493 (10th Cir. 2000) (concluding that a 911 tape as a whole

“was admissible as . . . a present sense impression”). Where we—or the Supreme

Court—have not recognized a novel rule or extended a principle to a materially

distinct context, it stands to reason that the district court did not abuse its discretion

in likewise declining to do so. See Sorbo v. United Parcel Serv., 432 F.3d 1169,



       5
         Defendant also argues that the 911 call includes speculative statements that
are not admissible as present sense impressions. Defendant imbeds this contention
within his argument that the statements lack sufficient contemporaneity because, the
argument follows that, speculation demonstrates that the caller had an opportunity for
reflection or interpretation. We will address this argument in like manner.
                                             7
1177 (10th Cir. 2005) (reasoning that a district court does not abuse its discretion

when we “know of no authority suggesting that the district court was required” to act

in a certain manner). Even though some circumstances may require a court to

conduct a more particularized analysis—and we are certainly not saying that the

district court would have abused its discretion had it done so here—those

circumstances are not present in this case. See Williamson v. United States, 512 U.S.

594, 599 (1994) (conflicting motives for separate statements); United States v.

Jackson, 124 F.3d 607, 618 (4th Cir. 1997) (intervening event between statements).

      Defendant, however, argues that Williamson requires courts to individually

analyze whether each statement within a 911 call is admissible. 512 U.S. at 599. We

acknowledge the Supreme Court has opined that the definition of a “statement” under

the hearsay rules is limited to “a single declaration or remark” and Rule 803(1) refers

to a “statement” that qualifies as present sense impression. Id. (determining in the

context of statements against interest that a court must exclude non-self-inculpatory

parts of a broader, generally self-inculpatory narrative as inadmissible hearsay). But

the principle from Williamson is readily distinguishable because it arises in the

context of self-inculpatory statements and is supported by an entirely different

rationale than at issue here. See id.

      Specifically, the rationale behind separating out non-self-inculpatory

statements from self-inculpatory ones is based on credibility concerns due to a

declarant’s motivation for self-inculpation. See id. at 599–600 (observing that “[o]ne

of the most effective ways to lie is to mix falsehood with truth, especially truth that

                                            8
seems particularly persuasive because of its self-inculpatory nature”). Motivation for

self-inculpation, however, is not at issue here because the 911 caller in this case was

a non-party observer, detached from any allegations of wrongdoing.

       In this context, the district court did not need to disassociate each statement

within the call to ameliorate credibility concerns. We therefore decline to extend the

principle in Williamson to this case because the 911 caller’s status as a disinterested

observer eliminates the need to assess whether self-serving motives tainted the

credibility of individual statements within the 911 call. See id. Thus, we conclude

that the district court did not abuse its discretion solely by considering the

admissibility of the 911 call as a whole, rather than parsing each individual statement

within the call.

       Next, no substantial change in circumstances occurred during the call. When a

significant, intervening event or substantial change in circumstances occurs between

statements, Rule 803(1) may require a court to treat a declarant’s statements

differently. See Jackson, 124 F.3d at 618 (observing that a witness’s statement made

after police intervened and gained control of the scene may not qualify as a present

sense impression even though earlier statements did qualify). Here, the caller

witnessed a shooting, called 911, and followed the Honda during the call with no

interruption or police intervention. The caller maintained focus on the Honda and its

occupants for the entirety of the discussion. Although the discussion shifts between

related topics, the call continually focused on an ongoing stream of observations,

which supports the admissibility of the call as a whole. See United States v. Beck,

                                            9
122 F.3d 676, 682 (8th Cir. 1997) (indicating statements made about events that

“were part of a single, continuous event” were properly admitted under Rule 803(1)).

       Finally, the factors relevant to Rule 803(1)’s trustworthiness rationale applied

to the call as a whole. “A 911 call has some features that allow for identifying and

tracing callers, and thus provide some safeguards against making false reports with

immunity.” Navarette, 572 U.S. at 400. Although the use of the 911 system alone

“does not ‘suggest that tips in 911 calls are per se reliable,’” a caller’s use of the

system mitigates some concern regarding reliability. United States v. Gaines, 918

F.3d 793, 806 (10th Cir. 2019) (Tymkovich, C.J., dissenting) (quoting Navarette, 572

U.S. at 401). 6 Other indicia of reliability are present “when the caller reveals where

he is located, jeopardizing his anonymity; does not decline to give any information,

especially identifying information; and does not seem in any hurry to make an

allegation and hang up.” Id. at 806–07 (observing when a caller does not describe

activities with precise contemporaneity, it “weakens the reliability” of the call as a

whole, but “other indicia of reliability” can make the call “fairly credible” evidence

when viewed in full context (id. at 806)).




       6
        To be clear, a particular credibility judgment of the declarant does not make
or prohibit a statement from being present sense impression, but the means through
which a declarant speaks can be relevant to the trustworthiness—and, therefore,
admissibility—of the statement itself. See Navarette, 572 U.S. at 397 (observing that
courts can more often rely on an attributable 911 call than an anonymous tip because
the former is more reliable evidence); see also United States v. Parker, 936 F.2d 950,
954 (7th Cir. 1991) (reasoning that the admissibility of statements under Rule 803(1)
can be “buttressed by the intrinsic reliability of the statements”).
                                             10
       Those same reliability factors apply here. The caller was not anonymous, but

rather provided his full name, phone number, and home address during the call. The

circumstances of the call, therefore, created a “disincentive for making false

allegations,” which increases the reliability of its collective statements. See Gaines,

918 F.3d at 806. These factors equally support the truthfulness of each statement

within the 911 call, which were all admissible as present sense impressions. See

Parker, 936 F.2d at 954. Accordingly, the district court did not abuse its discretion in

considering the admissibility of the 911 call as a whole because the entire call was

sufficiently reliable.

                                           B.

       Next, we must address whether the caller’s statements were sufficiently

contemporaneous to qualify as present sense impressions. In addressing this

question, we must apply the appropriate level of deference to the district court’s

consideration of case-specific facts. See United States v. Banks, 761 F.3d 1163,

1197 (10th Cir. 2014) (explaining that “we will not disturb the ruling unless it is

arbitrary, capricious, whimsical or manifestly unreasonable, or we are convinced that

the district court made a clear error of judgment or exceeded the bounds of

permissible choice”). Defendant contends that Rule 803(1) requires immediate

contemporaneity, and, even if it does not, the passage of time between the 911

caller’s observations and statements destroyed the necessary contemporaneity. We

reject these arguments. To begin with, Rule 803(1) “recognizes that in many, if not

most, instances precise contemporaneity is not possible and hence a slight lapse is

                                           11
allowable.” Fed. R. Evid. 803(1) advisory committee’s notes to 1972 proposed rules;

see also Christopher B. Mueller & Laird C. Kirkpatrick, 4 Fed. Evid. § 8:67 (4th ed.

June 2019 Update) (commenting that a slight lapse is acceptable under Rule 803(1)

because “a small delay . . . is not enough to allow reflection, which would raise

doubts about trustworthiness”). 7 Thus, the advisory committee has specifically

addressed at least half of Defendant’s argument and reached a contrary conclusion.

      Defendant’s position is also belied by the fact that courts addressing the issue

have refused to adopt a “per se rule indicating what time interval is too long under

Rule 803(1).” United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995) (quoting

Parker, 936 F.2d at 954), vacated and remanded on other grounds sub. nom., Hawkins

v. United States, 516 U.S. 1168 (1996). And that makes sense because “[t]he

underlying rationale of the present sense impression exception is that substantial

contemporaneity of event and statement minimizes unreliability due to defective

recollection or conscious fabrication.” Id. Thus, instead of recognizing a bright-line

rule for specific time intervals and admissibility, courts have held that “the



      7
         But see United States v. Rosetta, 127 F.3d 1110, at *2 (10th Cir. 1997)
(unpublished table decision) (stating that “a delay of minutes or hours between an
event and a statement bars resort to [Rule] 803(1)” in concluding that a victim’s
statement made approximately nine hours after an assault was not admissible under
the present sense impression exception, but was admissible as an excited utterance).
In other words, we suggested that an unspecified period of minutes may be too long
to preserve substantial contemporaneity under Rule 803(1). Id. Our conjecture in
Rosetta is too imprecise to provide significant guidance here beyond the conclusion
that a nine-hour delay between event and statement is too long. Moreover, we
generally disfavor the citation of orders and judgments, so Rosetta is both non-
binding and non-persuasive in this case. See 10th Cir. R. 32.1.
                                           12
admissibility of statements under hearsay exceptions depends upon the facts of the

particular case.” United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979),

overruled on other grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir.

1991). Underlying all of this is the notion that “[t]he need for deference to a trial

court ruling on a hearsay objection is particularly great because the determination of

whether certain evidence is hearsay rests heavily upon the facts of a particular case.”

United States v. Rodriguez-Pando, 841 F.2d 1014, 1018 (10th Cir. 1988).

       The 911 call in this case involved statements relaying the caller’s

contemporaneous observations during his pursuit of the Honda, as well as statements

describing what the caller observed minutes earlier. Although the call lasted about

thirteen minutes in total, the caller first provided details of the shooting only three or

four minutes after observing the event. The weight of authority from other

jurisdictions counsels in favor of admitting 911 calls such as this one because such a

short delay does not give rise to much opportunity for reflection or interpretation that

could undermine the reliability of the statements. See, e.g., United States v. Davis,

577 F.3d 660, 669 (6th Cir. 2009) (stating that “it does not matter whether the [911]

call was made thirty seconds or five minutes after witnessing the event” because the

time interval did not diminish the reliability of the statements); United States v.

Shoup, 476 F.3d 38, 42–43 (1st Cir. 2007) (concluding that a district court does not

commit obvious error in admitting a 911 call where the caller dials 911 “one or two

minutes” after perceiving an event (id. at 40)); Hawkins, 59 F.3d at 730 (affirming

the admission of a 911 call placed seven minutes after an event occurred, during

                                            13
which time the caller moved locations due to the event, because the slight delay did

not allow significant opportunity for conscious fabrication). To be sure, the caller’s

statements here are even more contemporaneous with the underlying event (the

shooting) than other statements admitted as present sense impressions. See Hawkins,

59 F.3d at 730 (concluding that seven minutes did not destroy sufficient

contemporaneity); see also Blakey, 607 F.2d at 785–86 (affirming the admission of

statements under Rule 803(1) where the interval was potentially twenty-three minutes

between event and statements when “coupled with the substantial circumstantial

evidence corroborating the statements’ accuracy”). Accordingly, the three to four-

minute delay between the shooting and first descriptive statements did not destroy the

necessary contemporaneity.

      The context surrounding the 911 call in this case also supports the reliability of

the statements. Although statements about the shooting and suspects are interspersed

throughout the call, the 911 caller made the statements in a discrete period without

any break, interruption, or intervening event. See supra Part II(A) (citing Jackson,

124 F.3d at 618; Beck, 122 F.3d at 682). The facts that the 911 call began soon after

the caller observed the shooting and focused on “the same continuing event” weighs

against the adverse effect of the length of the call on sufficient contemporaneity. See

Blakey, 607 F.2d at 786 (affirming the admission of recorded statements even though

“[a] relatively large amount of conversation was recorded” because the conversation

began “soon after” the underlying event and focused on that central event). The

caller’s continued focus on the Honda and engagement with the 911 operator further

                                          14
limited his opportunity for “defective recollection or conscious fabrication” while

providing detailed statements about the shooting. Hawkins, 59 F.3d at 730.

      Defendant also takes issue with the admission of the 911 call because the

caller made several statements in response to the 911 operator’s questions.

Defendant argues that the 911 operator’s questions provided an “opportunity for

strategic modification,” which “undercuts the reliability that spontaneity insures.”

See United States v. Manfre, 368 F.3d 832, 840 (8th Cir. 2001). 8 The mere fact that

the caller made statements in response to questions, however, does not demonstrate

that the statements were a product of strategic modification outside the bounds of

Rule 803(1). See United States v. Boyce, 742 F.3d 792, 797 (7th Cir. 2014)

(observing that a caller “can still make statements without calculated narration even

if made in responses to questions”). Indeed, those facts do not materially diminish

spontaneity under the circumstances, which supports the rationale for Rule 803(1).

See Manfre, 368 F.3d at 840.

      Similarly, the caller’s movement from the location of the shooting through his

pursuit of the Honda does not eliminate sufficient contemporaneity. See United


      8
        Defendant cites United States v. Green, 556 F.3d 151, 157 (3d Cir. 2009) in
support of his argument, but Green is distinguishable. There, law enforcement
searched, transported, and formally debriefed a confidential informant before the
informant gave a statement fifty minutes after perceiving an event. The court
reasoned that these facts “affirmatively indicate[] that [the confidential informant]
made his statement after he was expressly asked to reflect upon the events in
question, and thereby fatally disqualifies the declaration for admission as a present-
sense impression.” Id. No such law enforcement intervention or debriefing occurred
here, nor is the delay between statement and event near the fifty-minute delay that the
speaker experienced in Green. Id.
                                          15
States v. Dean, 823 F.3d 422, 428 (8th Cir. 2016) (concluding that a “911 call and

recorded statements occurred with sufficient contemporaneity” where the caller had

time to leave an apartment in which an event took place before calling 911 to

describe the event); Hawkins, 59 F.3d at 730 (the caller traveled from an apartment to

a nearby convenience store before calling 911). The caller made his statements

regarding the catalyst of the event (the shooting) within two or three minutes of the

shooting, and while observing “the same continuing event” from behind the wheel of

his car. See supra Part II(A). Taken together, the facts demonstrate the caller made

the statements with no more than the “slight lapse” allowed by Rule 803(1) between

event and statement. Fed. R. Evid. 803(1) advisory committee’s notes to 1972

proposed rules.

       Finally, the call was sufficiently reliable evidence. As discussed above, we

look to “other indicia of reliability” outside of the call itself to assess its reliability as

evidence. Gaines, 918 F.3d at 806. And “substantial circumstantial evidence

corroborating the statements’ accuracy” can justify the admittance of a call under

Rule 803(1) despite a particularly long delay between event and statement. See

Blakey, 607 F.2d at 786 (relying on such evidence to verify reliability where the

delay was up to twenty-three minutes); see also Parker, 936 F.2d at 954. After all,

“[t]he core inquiry under the rule concerns the reliability of the declarant” under the

circumstances. First State Bank of Denton v. Md. Cas. Co., 918 F.2d 38, 42 (5th Cir.

1990) (internal quotation marks and citation omitted).



                                             16
      The 911 caller in this case was a disinterested party with no known motive to

fabricate information. See id. (affirming the admission of hearsay statements

because the declarant “had little motive to lie and was relating information he had

just gathered . . . even assuming it did not meet the precise contours of [R]ule

803(1)”). The fact that Officer Braun corroborated several of the caller’s statements

in short order further adds to the statements’ reliability. 9 Even though Officer Braun

did not corroborate every detail of the caller’s statements—in fact, some peripheral

details proved erroneous 10—Defendant retained the opportunity to attack the

reliability of these statements in the presentation of his defense. The fact that the 911

recording system preserved the caller’s statements, such that “there is no uncertainty

as to the content of the declarant’s statement[s]” further supports the reliability

rationale for admitting hearsay statements under Rule 803(1). Blakey, 607 F.2d at

785. On balance, we conclude that substantial corroboration of the 911 caller’s

disinterested statements demonstrates that the statements were particularly reliable

evidence. First State Bank of Denton, 918 F.2d at 42.

      Accordingly, we hold that the 911 caller’s statements qualified as present

sense impressions. The “timeline of events suggests that the caller reported the


      9
         Specifically, by the time Officer Braun detained Defendant, he corroborated
the caller’s statements about the Honda’s direction of travel, a distinctive feature of
the Honda, and Defendant’s appearance.
      10
          Specifically, the caller said the gun used in the shooting sounded like a
9mm, but Officer Braun discovered a .22 caliber pistol on Defendant’s person. The
caller also guessed that Defendant was in his twenties, but Defendant was 38 years
old at the time of the event.
                                           17
[shooting] soon after” he perceived it and his continuing observations of the Honda

and its occupants are the “sort of contemporaneous report [that] has long been treated

as especially reliable” in evidence law. Navarette, 572 U.S. at 399. Our conclusion

is consistent with the manner in which courts have analyzed sufficient

contemporaneity under similar circumstances, and other indicia of reliability

bolstered the admissibility of the 911 call in this case. See Gaines, 918 F.3d at 804.

      We therefore affirm the district court’s decision to admit the 911 call in its

entirety under the present sense impression exception to the rule against hearsay. 11

                                          III.

      Defendant contends that his prior conviction for attempted second-degree

assault in Colorado is not for a crime of violence. Defendant, however, concedes that

circuit precedent precludes both of his assertions on this point. We observe that

Defendant maintains the argument strictly for preservation purposes.

      Specifically, Defendant concedes that United States v. Mendez, 924 F.3d 1122

(10th Cir. 2019) forecloses his first assertion that Colorado “attempt” is broader than

generic “attempt.” 924 F.3d at 1126 (observing that a defendant can do “no more

than offer theoretical grounds on which some conduct might constitute criminal

attempt in Colorado but not under the generic definition of the term”). Defendant

further concedes that United States v. Martinez, 602 F.3d 1166 (10th Cir. 2010)

forecloses his second assertion that Colorado attempt falls outside the ambit of


      11
        Because we conclude that the district court did not abuse its discretion in
admitting the 911 call, we need not reach the parties’ harmless error arguments.
                                          18
Application Note 1 to United States Sentencing Guidelines § 4B1.2(a). 602 F.3d at

1174 (reasoning that attempting to commit a crime of violence is itself a crime of

violence). Accordingly, we affirm the district court’s sentencing calculation.

                                         IV.

      Defendant finally argues that the district court committed plain error in

ordering Special Condition Three, without making any particularized supportive

findings. Special Condition Three requires Defendant to take all medications that

may be prescribed by his psychiatrist, and to demonstrate compliance through

random blood tests. In light of our recent decision in United States v. Malone, 937

F.3d 1325, 1329 (10th Cir. 2019), the government submitted a letter pursuant to

Federal Rule of Appellate Procedure 28(j) conceding that the district court plainly

erred in imposing Special Condition Three. Accordingly, we vacate and remand on

this issue for further proceedings.

                                          V.

      For the foregoing reasons, we AFFIRM Defendant’s conviction, vacate Special

Condition Three, and REMAND for further proceedings consistent with this opinion.




                                          19
United States v. Daniel Lovato, No. 18-1468, Bacharach, J., concurring.

      I agree with the majority that the district court did not abuse its

discretion in admitting the 911 call, that the district court’s sentencing

calculation was proper, and that we should vacate Special Condition Three.

But I respectfully disagree with the majority’s conclusions that (1) the

court should analyze the 911 call as a whole and (2) we should consider

“other indicia of reliability” to determine whether the 911 call is

admissible as a present-sense impression under Fed. R. Evid. 803(1).

Majority Op. at 17.

1.    The exception for present-sense impressions applies to individual
      statements, not conversations.

      Under the Federal Rules of Evidence, a present-sense impression is

admissible as an exception to the rule against hearsay. Fed. R. Evid. 803.

A present-sense impression is “[a] statement describing or explaining an

event or condition, made while or immediately after the declarant

perceived it.” Fed. R. Evid. 803(1). A “statement” is in turn defined as “a

person’s oral assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion.” Fed. R. Evid. 801(a).

      Under this definition, a 911 call may contain multiple statements.

Some statements may qualif y as present-sense impressions, and others may

not. But to apply these definitions, courts must separately analyze the

individual statements.
      The Supreme Court required consideration of each individual

statement in Williamson v. United States, 512 U.S. 594 (1994). There the

Court wrestled with the hearsay exception for statements against interest.

See Fed. R. Evid. 804(b)(3). That exception, like the one for present-sense

impressions, applies only to a “statement.” Id. So the Court focused on the

rules’ definition of the term “statement,” holding that it refers to “a single

declaration or remark” rather than “a report or narrative.” Williamson, 512

U.S. at 599 (quoting Webster’s Third New International Dictionary 2229

(1961)). The Supreme Court then considered the principle behind the

statement-against-interest exception, explaining that “reasonable people,

even reasonable people who are not especially honest, tend not to make

self-inculpatory statements unless they believe them to be true.” Id. That

principle does not necessarily apply to every statement in a confession.

The Supreme Court thus held that the statement-against-interest exception

requires courts to separately analyze each statement to determine whether

it is self-inculpatory. Id. at 599–604.

      Williamson’s reasoning likewise applies to the hearsay exception for

present-sense impressions. Just as a confession may contain statements that

are self-inculpatory and statements that are not, so too a 911 call may

contain statements that are present-sense impressions and statements that

are not.



                                          2
     The majority downplays Williamson, reasoning that the Supreme

Court was considering the hearsay exception for statements against

interest, not present-sense impressions. But the Supreme Court was

applying a definition of “statement” that applies equally to both

exceptions.

     The Sixth Circuit has thus observed that “it would make little sense”

to confine Williamson to the hearsay exception for statements against

interest. United States v. Canan, 48 F.3d 954, 960 (6th Cir. 1995). For this

observation, the court reasoned that the Supreme Court was relying on a

definition of “statement” that governed all of the hearsay exceptions in

Rule 804:

     Although Williamson defined the term “statement” as it applies
     in the context of Rule 804(b)(3) “statements against interest,”
     we think that its definition extends to the other hearsa y
     exceptions delineated in Rule 804 as well. Accordingly, the term
     “statement” must mean “a single declaration or remark” for
     purposes of all of the hearsay rules. This determination is
     consistent with the idea implicit in Rule 801(a): that there is an
     overarching and uniform definition of “statement” applicable
     under all of the hearsay rules. Rule 801(a) indicates that its
     definition of statement covers Article VIII (Hearsay) of the
     Federal Rules of Evidence, entirely. It would make little sense
     for the same defined term to have disparate meanings throughout
     the various subdivisions of the hearsay rules.

Id. This reasoning applies here, compelling us to use Williamson’s

definition of a “statement” when considering present-sense impressions.

     Other courts have also applied the exception for present-sense

impressions to each individual statement rather than collectively to an

                                     3
entire conversation or narrative. For example, the Second Circuit parsed

individual statements in a 911 call:

      We conclude that the 911 tape, or at least the portion in which
      the caller states that the light-skinned black men in front of the
      bar are shooting-the crucial issue in [the petitioner’s] trial-was
      not shown by the People to be a report of a present sense
      impression and thus did not fall within the exception for that
      class of hearsay.

Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). So too did a Maryland

appellate court:

      The second [911] call . . . consisted of nine statements by the
      declarant. The first was legitimately a Present Sense Impression.
      The other eight were not. . . . The remaining eight statements
      consisted largely of a question and answer exchange between the
      declarant and the officer taking the call, as the declarant narrated
      past events in order to bring the officer up to date. “There was a
      shooting.” “They’re looking for a gun.” “[I]t was two guys. They
      threw it, more like buried it[.]” None of these is remotely a
      Present Sense Impression. . . . [The calls at issue] illustrate . . .
      how easy it is for a seemingly simple declaration to wander
      randomly back and forth between present impression and past
      narration.

Morten v. State, 215 A.3d 846, 858 (Md. Ct. Spec. App. 2019).

      Until now, our court has never held that a district court can apply a

hearsay exception to an entire conversation. The majority points to United

States v. Allen, where we concluded that the tape of a 911 call was

admissible as a present-sense impression. 235 F.3d 482, 493 (10th Cir.

2000). As the majority points out, the Allen panel didn’t separately discuss

the individual statements. But the defendant had not challenged the

admission of specific statements. The defendant instead argued that the

                                       4
entire call was inadmissible because it was cumulative and the declarant

was biased. See United States v. Allen, No. 99-3236, Appellant’s Opening

Br. at 32–33. We thus had no occasion to separately analyze specific

statements made during the 911 call. And a precedent like Allen cannot be

interpreted to include holdings on issues that were neither raised nor

decided. E.g., MODOC Lassen Indian Hous. Auth. v. U.S. Dep’t of Hous. &

Urban Dev., 881 F.3d 1181, 1191 (10th Cir. 2017). The majority’s

approach is thus unsupported by precedent.

      This approach appears difficult to apply. Under the majority’s

approach, it is unclear when a district court should analyze an entire 911

call as a single statement or separately analyze each individual statement. I

fear that district courts will now struggle with how to apply the

straightforward definition of “statement” set forth in the Federal Rules of

Evidence.

      Rather than foist this struggle onto district courts, I would consider

each challenged statement in the 911 call to determine whether the district

court erred in finding a present-sense impression.

2.    A separate reliability inquiry is not required.

      The majority discusses the caller’s reliability, considering factors not

directly related to contemporaneousness. For example, the majority notes

that the caller was not anonymous and that “the circumstances of the call

. . . created a ‘disincentive for making false allegations.’” Majority Op. at

                                      5
11 (quoting United States v. Gaines, 918 F.3d 793, 806 (10th Cir. 2019)

(Tymkovich, C.J., dissenting)); see also Majority Op. at 9 (noting “the 911

caller’s status as a disinterested observer”).

      In my view, however, the exception for present-sense impressions

contains no separate requirement of reliability. The hearsay exceptions

themselves are designed to assure reliability. See Fed. R. Evid. 803

advisory committee’s note to 1972 proposed rules (“The present rule

proceeds upon the theory that under appropriate circumstances a hearsay

statement may possess circumstantial guarantees of trustworthiness

sufficient to justify nonproduction of the declarant in person at the trial

even though he may be available.”). For example, the exception for

present-sense impressions requires temporal proximity, which itself serves

as a proxy for reliability. See United States v. Green, 556 F.3d 151, 155–

56 (3d Cir. 2009) (observing that contemporaneousness “is the effective

proxy for the reliability of the substance of the declaration” under the

exception for present-sense impressions); see also United States v. Ruiz,

249 F.3d 643, 647 (7th Cir. 2001) (“[C]ourts sometimes focus on the

corroboration or the lack thereof in admitting or excluding present sense

impressions, but the truth is that the rule does not condition admissibility

on the availability of corroboration.” (citation omitted)). So I respectfully

disagree with the majority’s view that a caller’s reliability bears on



                                       6
admissibility under the exception for present-sense impressions. 1 See

Edward J. Imwinkelried, The Need to Resurrect the Present Sense

Impression Hearsay Exception: A Relapse in Hearsay Policy, 52 How. L.J.

319, 350 (2009) (explaining that unlike some state statutes, the federal

present-sense exception “does not purport to grant the judge discretionary

authority to exclude otherwise admissible statements when ‘circumstances

indicate lack of trustworthiness’”).

3.    The district court did not abuse its discretion in admitting the
      statements in the 911 call as present-sense impressions.

      Though I respectfully disagree with the majority’s approach, I agree

with its outcome because the district court reasonably treated the

challenged statements as sufficiently contemporaneous to constitute

present-sense impressions.

      As the majority explains, we review the district court’s decision

under the abuse-of-discretion standard. This standard is ordinarily

deferential, Marczak v. Greene, 971 F.2d 510, 516 (10th Cir. 1992), and we


1
      Some of the majority’s authorities do not involve the exception for a
present-sense impression, and I would not apply these authorities. See,
e.g., United States v. Gaines, 918 F.3d 793, 806 (10th Cir. 2019)
(Tymkovich, C.J., dissenting) (invoking the reliability of an anonymous tip
as grounds for concluding that an investigative stop was supported by the
reasonable suspicion required by the Fourth Amendment); First State Bank
of Denton v. Maryland Cas. Co., 918 F.2d 38, 42 (5th Cir. 1990)
(discussing “the catch-all exception to rule 803,” Fed. R. Evid. 803(24),
and stating that “the core inquiry” under this exception “concerns the
reliability of the declarant” (quoting United States v. White, 611 F.2d 531,
538 n.7 (5th Cir. 1980))).
                                       7
review with “heightened” deference here because of “the fact-specific

nature of a hearsay inquiry.” United States v. Pursley, 577 F.3d 1204, 1220

(10th Cir. 2009) (citing United States v. Trujillo, 136 F.3d 1388 (10th Cir.

1998)). Discretion means that the district court has a “range of choice, and

. . . its decision will not be disturbed as long as it stays within that range

and is not influenced by any mistake of law.” Betty K Agencies, Ltd. v. M/V

Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quoting Guideone Elite

Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1324

(11th Cir. 2005)). So when we review a district court’s ruling under the

abuse-of-discretion standard, we are ultimately deciding whether the

district court has made a reasonable choice among the alternative

outcomes. Gasperini v. Center for Humanities, Inc., 149 F.3d 137, 141 (2d

Cir. 1998).

      We elsewhere apply the abuse-of-discretion standard by recognizing

the permissibility of various outcomes. For example, when confronted with

challenges to the substantive reasonableness of a sentence, we’ve often

recognized that many sentences are typically reasonable. See, e.g., Gall v.

United States, 522 U.S. 38, 51 (2007). We thus find an abuse of discretion

only when the district court chooses a sentence outside the range of

reasonable sentences. E.g., United States v. DeRusse, 859 F.3d 1232, 1236

(10th Cir. 2017).



                                       8
      So it is here when we review the admission of present-sense

impressions. In this area, the test lacks bright-line distinctions. See United

States v. Green, 556 F.3d 151, 156 (3d Cir. 2009) (“[C]ourts have not

adopted any bright-line rule as to when a lapse of time becomes too

lengthy to preclude Rule 803(1)’s application.”); see also United States v.

Blakey, 607 F.2d 779, 785 (7th Cir. 1979) (“There is no Per se rule

indicating what time interval is too long under Rule 803(1).”), overruled

on other grounds by United States v. Harty, 930 F.2d 1257, 1263 (7th Cir.

1991). Some statements are so obviously contemporaneous that no one

would question whether they constitute present-sense impressions. For

example, consider a 911 call in which a witness reports a robbery in

progress. This report would obviously be considered contemporaneous. On

the other hand, some statements are so clearly separated in time from the

incident that no one would regard the statements as present-sense

impressions. For example, a 911 call detailing the events of a robbery a

week earlier would obviously not qualify as contemporaneous.

      Between these polar extremes is a large gray area: statements in 911

calls that could reasonably be regarded as either contemporaneous or non-

contemporaneous. For these statements, district courts have broad

discretion in determining admissibility. See Balentine v. State, 707 P.2d

922, 926 (Alaska Ct. App. 1985) (observing that the Alaska version of the



                                      9
rule for present-sense impressions “leaves much room for subjective

application”).

      All of the challenged statements fall within this gray area, where

district courts enjoy considerable discretion. Some of the disputed

statements reported ongoing observations, some recalled events that had

occurred several minutes earlier, and some answered specific questions

from the 911 operator. For each statement, the district court could

reasonably conclude that the caller was

      •     describing or explaining an event

      •     while or immediately after the caller saw the event

      •     sufficiently close in time to the event to qualif y as a present-
            sense impression.

See Majority Op. at 11. Given the reasonableness of these conclusions, I

would hold that the district court did not abuse its discretion in treating

each challenged statement as a present-sense impression.




                                      10
