                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 May 13, 2014
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                       No. 13-3180
 v.

 TAURUS D. HOYLE,

       Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                  (D.C. No. 2:10-CR-20056-CM-1)


R. Bruce Kips, Shawnee, Kansas, for Defendant - Appellant.

James Brown, Assistant United States Attorney, (and Barry R. Grissom, United
States Attorney, on the brief), Topeka, Kansas, for Plaintiff - Appellee.


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


KELLY, Circuit Judge.


      Defendant-Appellant Taurus D. Hoyle appeals from the remand

proceedings of his prior appeal. In United States v. Hoyle (Hoyle I), 697 F.3d

1158 (10th Cir. 2012), this court affirmed Mr. Hoyle’s conviction of 18 U.S.C.

§ 922(g)(1) but remanded for proper sentencing. Mr. Hoyle appeals again, this
time challenging the district court’s denial of his motion for a new trial on

remand and consideration of prior state convictions at resentencing. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                    Background

      The facts underlying Mr. Hoyle’s conviction are detailed in Hoyle I, 697

F.3d at 1161-63. Briefly, Mr. Hoyle was charged with violating 18 U.S.C.

§ 922(g)(1), which makes it unlawful for a convicted felon to “possess in or

affecting commerce, any firearm or ammunition.” Id. at 1162-63. The charge

came after an incident where Mr. Hoyle pointed a gun at Tyda Hall and

threatened to shoot. Id. at 1161. Ms. Hall called 911, and Mr. Hoyle fled. Id.

During the 911 call, Ms. Hall described the gun as a silver revolver. Id. Officer

Ruben Rodriguez located Mr. Hoyle and attempted to make contact. Id. at 1161-

62. Mr. Hoyle fled, and Officer Rodriguez noticed that it looked like Mr. Hoyle

was holding something. Id. at 1162. Officers eventually apprehended Mr. Hoyle,

and Officer Rodriguez saw that Mr. Hoyle’s hands were scratched and dotted with

blood. Id. No gun was found on Mr. Hoyle’s person; however, Officer William

Saunders searched the immediate area and found a silver revolver under an

automobile. Id. Blood was found on the revolver—blood that a DNA test showed

to be Mr. Hoyle’s. Id.

      Mr. Hoyle made several incriminating statements after arrest. First, in an

                                        -2-
interview with Detective Pat Greeno at Wyandotte County Jail, Mr. Hoyle asked

whether he would be prosecuted by state or federal authorities; he wanted to know

because he was a felon caught with a gun, and he should be in a federal holding

facility. Id. Later, when Detective Greeno was transporting Mr. Hoyle to the

United States Marshal’s booking facility, Mr. Hoyle asked, “[C]an I plead guilty

today?” Id. And when Detective Greeno was reading Mr. Hoyle the terms of a

search warrant, Mr. Hoyle interrupted with, “I’m guilty of this, man. You don’t

need to go through all this.” Id.

        On this record, we rejected Mr. Hoyle’s insufficient-evidence argument and

affirmed his conviction. Id. at 1163, 1170. However, we held that his two prior

Kansas convictions did “not qualify as predicate convictions for the [Armed

Career Criminal Act’s] enhanced sentencing provisions” because his civil rights

had been restored under Kansas law. Id. at 1161, 1170. We therefore vacated his

sentence and remanded “for resentencing consistent with this opinion.” Id. at

1170.

        On remand, Mr. Hoyle did not content himself with challenging his

sentence; rather, he again challenged his conviction, this time arguing that the

government suppressed evidence he could have used to impeach various

witnesses. Aplt. Br. 4; Aplee. Br. 8. The district court denied Mr. Hoyle’s

motion for a new trial and proceeded to resentencing. Aplt. Br. 4.

        In preparation for resentencing, the probation office prepared a presentence

                                         -3-
investigation report (PSR) using the November 1, 2012 edition of the Sentencing

Guidelines (U.S.S.G.). 3 R. 4-29. The PSR took into account Mr. Hoyle’s two

prior felony convictions—a 1994 Kansas conviction for aggravated assault and a

1994 Kansas conviction for aggravated escape from custody. Id. at 8, 11, 13.

Given these prior felonies, the PSR arrived at a base offense level of 24 under

U.S.S.G. § 2K2.1(a)(2) and assessed each conviction three criminal history points

under § 4A1.1(a). Id. at 8, 16. This resulted in a criminal history category of VI.

Id. at 16. The PSR also added four offense levels under § 2K2.1(b)(6)(B) because

Mr. Hoyle “used or possessed the firearm” in connection with the Kansas felony

of “criminal threat.” Id. at 8.

      Mr. Hoyle objected. He argued that, because his civil rights had been

restored, his two state felony convictions could not be used to either enhance his

base offense level under § 2K2.1(a)(2) or assess criminal history points under

§ 4A1.1(a). Id. at 26, 28. He also objected to the four-level increase for

committing “criminal threat,” arguing that Ms. Hall, who testified at trial that Mr.

Hoyle pointed his revolver at her and threatened to shoot, was not a credible

witness. Id. at 27-28.

      The district court overruled Mr. Hoyle’s objections. 2 R. 41-44. The court

adopted the PSR’s total offense level of 28 and criminal history category VI, and

noted that the guidelines range was 140 to 175 months. Id. at 44. However,

because the statutory maximum sentence was 120 months, id. at 44-45, the court

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sentenced Mr. Hoyle to 120 months’ imprisonment followed by three years’

supervised release, 1 R. 78-79.



                                     Discussion

      In this appeal, Mr. Hoyle argues that, on remand of Hoyle I, the district

court erred by (1) denying him a new trial based on violations of Brady v.

Maryland, 373 U.S. 83 (1963); (2) using his two state convictions—to which his

civil rights had been restored—to (a) enhance his base offense level under

U.S.S.G. § 2K2.1 and (b) assess criminal history points under § 4A1.1; and (3)

finding that he used or possessed the revolver in connection with the Kansas

felony “criminal threat.” Aplt. Br. ii, 23.

1.    New Trial for Brady Violations

      We review a Brady claim asserted in a Rule 33 motion for a new trial de

novo, reviewing any factual findings for clear error. United States v. Torres, 569

F.3d 1277, 1281 (10th Cir. 2009). Mr. Hoyle alleges that, after our remand in

Hoyle I, his counsel discovered three Brady violations that occurred during his

trial. Aplt. Br. 6. First, he argues the government failed to disclose a disciplinary

letter received by Officer Saunders, and this impeachment evidence creates “a

reasonable probability that the jury might not have believed [Officer Saunders’s]

testimony that he found the firearm underneath an automobile in the area where

[Mr. Hoyle] was arrested.” Id. at 6, 11. Second, Mr. Hoyle alleges that the

                                         -5-
government failed to disclose a disciplinary letter received by Officer

Palmerin—whom the government did not call as a witness—and with this

evidence he “could have called Palmerin as a witness and questioned his

credibility” regarding a police report. Id. at 6, 12. Finally, he alleges the

government failed to disclose that Tyda Hall had a Kansas City, Kansas

conviction of misdemeanor theft. Id. at 6. Although there is no reason to believe

that the government knew about Ms. Hall’s conviction before trial, he argues that

“the Government should or could have learned about” it before then. Id. at 13.

      We reject Mr. Hoyle’s arguments that the government suppressed material

impeachment evidence at his trial. 1 First, the district court reviewed Officer

Saunders’s disciplinary letter in camera and found that the letter did not relate to

“truthfulness” or “honesty.” 1 R. 56. Mr. Hoyle does not challenge this finding

as clearly erroneous, see Aplt. Br. 10-12, so the issue is waived, Silverton


      1
          The government raises the possibility that the district court lacked
jurisdiction to consider Mr. Hoyle’s motion for a new trial given our limited
remand for “resentencing” only. Aplee. Br. 1 n.1. The “mandate rule”
“requir[es] trial court conformity with the appellate court’s terms of remand.”
United States v. West, 646 F.3d 745, 748 (10th Cir. 2011). “[T]he scope of the
mandate on remand in the Tenth Circuit is carved out by exclusion: unless the
district court’s discretion is specifically cabined, it may exercise discretion on
what may be heard.” Id. at 749. In addition to a mandate from this court,
however, Rule 33 provides a district court with an independent jurisdictional
basis to consider post-remand motions for a new trial. See United States v. Ross,
372 F.3d 1097, 1105 (9th Cir. 2004). Because Mr. Hoyle’s motion was based on
newly discovered evidence and filed within three years after his guilty verdict,
see Fed. R. Crim. P. 33(b)(1), the district court had jurisdiction to consider it on
remand, and it is properly before this court.

                                         -6-
Snowmobile Club v. United States Forest Serv., 433 F.3d 772, 783 (10th Cir.

2006). Second, Mr. Hoyle neither presented the content of Officer Palmerin’s

disciplinary letter to the district court, 1 R. 55, nor placed it in the appellate

record. Mr. Hoyle has thus failed to meet his burden of establishing the existence

of favorable, material evidence rather than hinting at its suspected existence. See

United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009). Finally, the

district court found that the government did not suppress knowledge of Tyda

Hall’s conviction because the government did not know of that conviction. 1 R.

54-55. This finding is not clearly erroneous. Moreover, Mr. Hoyle’s suggestion

that the government “should or could have” learned of this conviction highlights

that this evidence was not in the “possession or control of the government,”

Erickson, 561 F.3d at 1163, and Mr. Hoyle does not allege that the government

kept itself intentionally ignorant of Ms. Hall’s conviction, see Aplt. Br. 13-14.

The district court properly denied Mr. Hoyle’s motion for a new trial.

2.    Prior State Convictions under Sentencing Guidelines

      We review the district court’s interpretation of the sentencing guidelines de

novo. United States v. Hodge, 721 F.3d 1279, 1280 (10th Cir. 2013). In this

appeal, Mr. Hoyle argues that the sentencing guidelines’ use of the term

“imprisonment for a term exceeding one year” conflicts with the use of that term

in statutes. Aplt. Br. 14, 18. Specifically, he argues U.S.S.G. § 2K2.1(a)(2)’s

definition of “felony conviction” (i.e., a conviction “punishable by death or

                                           -7-
imprisonment for a term exceeding one year”), and § 4A1.1(a)’s definition of

“prior sentence of imprisonment exceeding one year and one month,” conflict

with 18 U.S.C. § 921(a)(20)’s definition of “crime punishable by imprisonment

for a term exceeding one year.” Id. The latter statute expressly excludes from

that definition “[a]ny conviction which has been expunged, or set aside or for

which a person has been pardoned or has had civil rights restored.” 18 U.S.C.

§ 921(a)(20). Because the sentencing guidelines nonetheless take such

convictions into consideration, Mr. Hoyle argues the sentencing guidelines

impermissibly deviate from the statute.

      We must first determine whether § 921(a)(20) governs or controls the use

of felony convictions under the sentencing guidelines as Mr. Hoyle contends.

Aplt. Br. 16-17. Of course, Congress delegated to the Sentencing Commission

significant discretion in formulating federal sentencing guidelines. United States

v. LaBonte, 520 U.S. 751, 757 (1997). That discretion is not unbounded,

however, and the guidelines must follow the “specific directives of Congress.”

Id. Congress “imposed upon the Commission a variety of specific requirements.”

Id. at 753 (citing 28 U.S.C. §§ 994(b)-(n)). To determine whether a statute

constitutes a specific directive or requirement that limits the Commission’s

discretion, we must turn to the statutory language. See id. at 757. If the

guidelines conflict with a specific directive of Congress, then the guidelines must

give way. Id.

                                          -8-
      Mr. Hoyle argues that § 921(a)(20) is a “statutory prohibition” on the use

of pardoned convictions under the sentencing guidelines. Aplt. Br. 17. He does

not point out, however, any specific directive within the statute to this effect.

Section 921 sets forth various definitions “used in this chapter,” and subsection

(a)(20) defines “crime punishable by imprisonment for a term exceeding one year

. . . for purposes of this chapter.” 18 U.S.C. § 920(a), (a)(20). “This chapter”

refers to Chapter 44 (“Firearms”) of Title 18 of the United States Code. In

Chapter 44, “crime punishable by imprisonment for a term exceeding one year” is

used in § 922(d)(1), (g)(1), and (n), which make it unlawful to provide a firearm

to a known felon, possess a firearm as a felon, or ship or transport a firearm while

under a felony indictment; § 924(e)(2)(B), which defines “violent felony”; and

§ 925(b), which exempts certain licensed persons from criminal liability. Thus,

§ 921(a)(20)’s definition of “crime punishable by imprisonment for a term

exceeding one year”—and its exclusion of pardoned convictions—is limited to

determining what offenses count as predicate offenses for § 922, determining who

gets a greater minimum sentence under § 924(e)(1), and exempting certain

persons from criminal liability altogether (§ 925(b)). The statutory definition

does not illuminate what convictions the Commission can use to determine an

appropriate sentence under the guidelines.

      Although the language in the substantive criminal statute and sentencing

guidelines may be similar, we have noted “that the inquiry under the statute is

                                         -9-
separate from and independent of the one under the sentencing guidelines, unless

indicated otherwise. Thus, the statutory definition is controlling for the actual

offense, but the commentary to the guideline controls for purposes of determining

the sentence.” United States v. Plakio, 433 F.3d 692, 696 (10th Cir. 2005). In

Plakio, the fact that the defendant’s conviction qualified as a “crime punishable

by imprisonment for a term exceeding one year” under § 922(g)(1) did not also

determine whether that conviction qualified as an offense “punishable by

imprisonment for a term exceeding one year” under U.S.S.G. § 2K2.1. Id.; see

also United States v. Morris, 139 F.3d 582, 584 (8th Cir. 1998) (Section

921(a)(20) is controlling for purposes of defining felon-in-possession offense,

while U.S.S.G. § 2K2.1 is controlling for purposes of determining resulting

sentence).

      Unless Congress has specifically directed otherwise, there is no conflict

between exempting certain conduct from criminal liability under a statute and not

exempting that same conduct from sentencing consideration. The two

provisions—§ 921(a)(20) and the sentencing guidelines—have different purposes.

The statute addresses criminal liability under § 922; that established, the

guidelines consider a number of factors (including prior convictions) pertaining to

sentencing. That Congress sought to avoid felon-in-possession liability for

persons who had their felonies negated by restoration of civil rights, see 18

U.S.C. § 921(a)(20), does not mean that Congress sought to avoid enhanced

                                        - 10 -
punishment for persons who were nonetheless guilty of § 922 and two previous,

albeit negated, felonies, see U.S.S.G. § 2K2.1(a)(2). The statute simply does not

address how restoration of civil rights affects sentencing. That determination is

within the sound discretion of the Sentencing Commission.

      The one appellate decision reaching the opposite conclusion is

unpersuasive. In United States v. Palmer, the Ninth Circuit held that, because the

“governing statute [(§ 921(a)(20))] specifically precluded the use of a conviction

for which civil rights have been restored, the district court erred in counting” the

defendant’s prior felony conviction towards his base offense level under U.S.S.G.

§ 2K2.1. 183 F.3d 1014, 1017 (9th Cir. 1999). Section 921(a)(20) governs

sentencing, the court concluded, because “Chapter 44 includes both § 922 and

§ 924, which sets out maximum sentences for offenses under this chapter.

Accordingly, ‘for purposes of this chapter’ clearly includes sentencing.” Id.

      Palmer’s holding that § 920(a)(20) is a “governing statute” cabining the

Commission’s discretion in enacting sentencing guidelines is flawed for two

reasons. First, in LaBonte, upon which Palmer purported to rely, 183 F.3d at

1018, the Supreme Court struck down sentencing guidelines where they conflicted

with “specific requirements” or “specific directives” of Congress, 520 U.S. at

753, 757. Unless a statute constitutes a “specific” limitation on the Commission’s

broad discretion, see 520 U.S. at 757, the Commission has discretion to act. The

Supreme Court found such specific limitations within 28 U.S.C. § 994, id. at 753,

                                        - 11 -
a statute that delineates what the Commission “shall” and “shall not” do, see, e.g.,

28 U.S.C. § 994(b)(1), (t). It is a jump of logic to assume, as the Palmer court

did, that because § 921(a)(20) “sets out maximum sentences for offenses under

this chapter,” it unquestionably controls the Commission’s discretion to consider

how prior convictions affect the appropriate sentence. 2

      Second, Palmer’s lack of analysis undermines the soundness of its holding.

After holding that pardoned convictions could not be used to establish a

defendant’s “base offense level,” the Ninth Circuit went on to hold that the use of

such convictions to compute a defendant’s “criminal history category” did not

conflict with the “statutory prohibition” of § 921(a)(20) because “criminal history

category” was not addressed in Chapter 44. Palmer, 183 F.3d at 1018. However,

this cannot be squared with the court’s earlier holding that Chapter 44 “clearly

includes sentencing.” Id. at 1017. A defendant’s criminal history category is as

much a part of his “sentencing” as his base offense level, see Koon v. United

States, 518 U.S. 81, 88 (1996), and neither are mentioned in Chapter 44.


      2
          This is not to say that the sentencing guidelines can never be in conflict
with a statute defining a substantive offense or setting out a maximum sentence.
If the guidelines sought to criminalize conduct that is lawful under statute, or
sought to impose a sentence notwithstanding a statutory maximum sentence, the
guidelines would conflict with a specific directive of Congress. But that is not
the case here. As mentioned above, U.S.S.G. § 2K2.1 does not create criminal
liability where none exists otherwise. It imposes a sentence for conduct made
unlawful by statute (e.g., § 922(g)) and also takes into account the defendant’s
susceptibility to recidivism, something that § 921(a)(20) does not specifically
prohibit.

                                        - 12 -
         For these reasons, the district court properly overruled Mr. Hoyle’s

objection to counting his prior Kansas convictions towards his base offense level

(U.S.S.G. § 2K2.1) and criminal history category (§ 4A1.1).

3.       Sufficient Evidence for Criminal Threat

         While we review the district court’s interpretation of the sentencing

guidelines de novo, we review its factual findings for clear error. United States v.

Kitchell, 653 F.3d 1206, 1226 (10th Cir. 2011). Under this standard of review,

we will not disturb the district court’s factual findings unless they have no basis

in the record, and we view the evidence and inferences therefrom in the light most

favorable to the district court’s determination. Id.

         Mr. Hoyle argues that the district court erred by increasing his offense level

by four levels because there was insufficient evidence to find that he committed

the Kansas felony “criminal threat” while possessing the silver revolver. Aplt.

Br. 21-23. This is so, he contends, because the district court failed to consider

Ms. Hall’s “lack of credibility” as exhibited by her misdemeanor theft conviction.

Id. at 21-22. He also contends the evidence is insufficient because Ms. Hall never

told the 911 operator that Mr. Hoyle was pointing a gun “at her or anyone else,”

and other witnesses never stated that Mr. Hoyle pointed a gun at Ms. Hall. Id. at

22-23.

         The guidelines provide for a four-level increase if the defendant “used or

possessed any firearm or ammunition in connection with another felony offense.”

                                          - 13 -
U.S.S.G. § 2K2.1(b)(6)(B). At the time of Mr. Hoyle’s actions, the Kansas

“criminal threat” statute made a felony of “any threat to . . . [c]ommit violence

communicated with intent to terrorize another.” Kan. Stat. Ann. § 21-3419(a)(1)

(2007). 3 The district court found by a preponderance of the evidence that Mr.

Hoyle committed this felony while possessing the silver revolver, 2 R. 44, in part

because Ms. Hall testified that Mr. Hoyle pointed his gun at her and threatened to

shoot, 2 Supp. R. 57-58. The court determined that Ms. Hall’s prior conviction

for theft did not undermine her credibility. 2 R. 21-22, 44.

      “The credibility of a witness at sentencing is for the sentencing court, who

is the trier of fact, to analyze.” United States v. Deninno, 29 F.3d 572, 578 (10th

Cir. 1994). A determination of witness credibility is reviewed for clear error, and

“[w]e will not hold that testimony is, as a matter of law, incredible unless it is

unbelievable on its face, i.e., testimony as to facts that the witness physically

could not have possibly observed or events that could not have occurred under the

laws of nature.” United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th

Cir. 2003) (quoting United States v. Mendez-Zamora, 296 F.3d 1013, 1018 (10th

Cir. 2002)). In this regard, the district court’s credibility determination is

“virtually unreviewable on appeal.” Id. (internal quotation marks omitted).

      After reviewing the record, we hold that the district court did not clearly err


      3
         This statute was repealed effective July 1, 2011. 2010 Kan. Sess. Laws
ch. 136, § 307.

                                        - 14 -
in crediting Ms. Hall’s version of events, nor did it clearly err in finding by a

preponderance of the evidence that Mr. Hoyle committed the Kansas felony of

“criminal threat” while possessing the silver revolver.

      AFFIRMED.




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