                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         February 13, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2022
                                                  (D.C. No. 1:17-CR-01099-MCA-1)
 RICHARD J. HALL,                                              (D.N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Richard Hall challenges the district court’s decision to impose a three-level

enhancement under § 2B3.1(b)(2)(E) of the United States Sentencing Guidelines (the

Guidelines) for possessing or brandishing a dangerous weapon during a robbery. For

the reasons explained below, we affirm.

                                     Background

      Hall robbed a Wells Fargo bank in Albuquerque, New Mexico. The security

video of the robbery shows Hall waiting in line, approaching a teller, rummaging

through his pockets, and giving the teller a note. The note, which the teller returned



      *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
to Hall, said “something to the effect of ‘give me the money and no one will get

hurt.’” R. vol. 2, 5. The teller reported to law enforcement that after Hall gave him

the note, Hall reached down toward his waistband, raised the bottom of his shirt with

one hand, and grabbed what appeared to be a black handgun. Although Hall’s

waistband can’t be seen in the video, the video corroborates part of the teller’s

statement: it shows Hall giving the teller the note and then immediately moving his

hand down to his waistband.

      The teller gave Hall $2,456 in cash, and Hall walked out of the bank. Law

enforcement identified and arrested Hall about a week later. Hall admitted to robbing

the bank but told law enforcement that he didn’t use a gun. The government charged

Hall with bank robbery under 18 U.S.C. § 2113(a). Hall pleaded guilty.

      In the presentence report (PSR), the probation officer recommended a three-

level enhancement under § 2B3.1(b)(2)(E) because Hall created the impression that

he possessed a dangerous weapon during the robbery. Hall objected to the

enhancement. He argued that an objective review of the circumstances showed that

he only reached toward his waistband to pull his pants up, not to create the

impression that he had a weapon. At the sentencing hearing, the district court found

that the video, the teller’s statement as recounted in the PSR, and the threatening note

sufficiently supported imposing the enhancement. The district court sentenced Hall to

63 months in prison (the low end of the Guidelines range) and three years of

supervised release. Hall appeals, challenging the three-level enhancement.



                                           2
                                        Analysis

      We review de novo “the district court’s legal interpretation and application of

the [G]uidelines.” United States v. Farrow, 277 F.3d 1260, 1262 (10th Cir. 2002)

(quoting United States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999)). We likewise

review de novo whether “the facts found by the district court are insufficient as a

matter of law to warrant an enhancement.” United States v. Martinez, 602 F.3d 1156,

1158 (10th Cir. 2010) (quoting United States v. Hamilton, 587 F.3d 1199, 1222 (10th

Cir. 2009)).

      The § 2B3.1(b)(2)(E) enhancement increases the base offense level by three “if

a dangerous weapon was brandished or possessed” during the robbery. But the

enhancement applies in circumstances beyond those involving the use or possession

of an actual weapon. In particular, the commentary to the enhancement provides that

“an object shall be considered to be a dangerous weapon for purposes of subsection

(b)(2)(E) if . . . the defendant used the object in a manner that created the impression

that the object was an instrument capable of inflicting death or serious bodily injury.”

§ 2B3.1 cmt. n.2.

      On appeal, Hall first faults the district court for failing to specify which

“object” he used to create the impression of a dangerous weapon. Id.; see also

Farrow, 277 F.3d at 1266 (noting that “the commentary to [§ 2B3.1(b)(2)(E)]

necessarily requires some ‘object’ to support a finding of possession of a dangerous

weapon” (quoting § 2B3.1 cmt. n.2)). But Hall didn’t make this objection below.

Instead, in district court, Hall stated his “specific objection” was that under “an

                                            3
objective, reasonable view of what happened,” Hall never “created the impression

that he possessed a dangerous weapon.” R. vol. 2, 4. In other words, Hall argued

below that based on the video and the totality of the circumstances, the teller’s

impression—that Hall had a gun—wasn’t reasonable. And the district court’s ruling

reflects the argument that Hall presented: the district court concluded “that the video,

when combined with the other evidence, including the victim’s statement, is

sufficient to support the enhancement.” Id. at 12. Because Hall didn’t argue about the

absence of an “object”—in fact, the noun “object” doesn’t appear in Hall’s written

objection below, and he never said that word during the sentencing hearing—the

district court made no finding on that subject.

       The lack of such a finding isn’t surprising. Indeed, “[o]ur precedent is clear

that an objection must be ‘definite’ enough to indicate to the district court ‘the

precise ground’ for a party’s complaint.” United States v. Winder, 557 F.3d 1129,

1136 (10th Cir. 2009) (quoting Neu v. Grant, 548 F.2d 281, 287 (10th Cir. 1977)).

Here, Hall’s general objection to this enhancement failed to alert the district court to

his specific complaint on appeal, thereby “depriv[ing the district court] of the

opportunity to correct its action in the first instance.” Id. And to the extent that Hall

intended to advance an objection below to the lack of any finding regarding the

specific “object” the district court concluded he possessed, he did nothing to clarify

that objection when the district court gave him the opportunity to do so. Indeed, after

the district court denied Hall’s general objection without identifying the relevant

“object,” it asked Hall’s counsel, “Do you wish to note an objection to the court’s

                                            4
ruling?” R. vol. 2, 12. Hall’s counsel responded, “Well, we would object to that

ruling, Your Honor. I don’t need to elaborate any further.” Id. (emphasis added). So,

even when given the opportunity to clarify his objection, Hall declined to do so.

Instead, by stating there was no “need to elaborate,” Hall implicitly signaled to the

district court that it had understood and addressed Hall’s argument below. Id.; see

also United States v. Uscanga-Mora, 562 F.3d 1289, 1294 (10th Cir. 2009) (finding

that defendant forfeited specific challenge to sentencing enhancement that he failed

to advance below—even after “district court judge paused at the end of his discussion

of the sentencing enhancement and gave both parties the opportunity to raise any

additional concerns,” thereby providing defendant with “opportunity to raise any as-

yet unvoiced objection to the court’s statement of reasons for granting the

enhancement”).

      Accordingly, to the extent Hall now asserts that the district court erred by

failing to make a finding about which “object” he used, he forfeited this argument by

failing to raise it below. See United States v. Zubia-Torres, 550 F.3d 1202, 1205

(10th Cir. 2008). What’s more, he has waived it on appeal by failing to argue for

plain error. See United States v. Kearn, 863 F.3d 1299, 1313 (10th Cir. 2017) (“[T]he

failure to argue for plain error and its application on appeal . . . marks the end of the

road for an argument for reversal not first presented to the district court.” (quoting

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011))). As such, we

decline to consider this argument.



                                            5
      We now move on to Hall’s two properly preserved arguments. First, he

contends that the district court applied an incorrect legal standard when it imposed

the enhancement under § 2B3.1(b)(2)(E). The standard for applying this enhancement

is an objective one: the sentencing court inquires “whether a reasonable person,

under the circumstances of the robbery, would have regarded the object that the

defendant brandished, displayed[,] or possessed as a dangerous weapon.” Farrow,

277 F.3d at 1268 (quoting United States v. Hart, 226 F.3d 602, 607 (7th Cir. 2000)).

Under this objective standard, a victim’s subjective impression is “relevant” but “is

never controlling of the outcome.” Id. (quoting Hart, 226 F.3d at 607). Instead,

“[c]ourts must examine the totality of the evidence, including words spoken and the

surrounding context, to determine whether it was reasonable for the victim to think

that the defendant was wielding a weapon.” United States v. Maxwell, 90 F. App’x

305, 307 (10th Cir. 2004) (unpublished); see also Farrow, 277 F.3d at 1268

(applying enhancement based on combination of bank teller’s observations and

defendant’s threatening actions).

      Here, Hall argues that the district court incorrectly applied a subjective

standard by relying solely on the teller’s impressions. In support, he points out that

the district court failed to specify that it was applying an objective standard, relied on

the teller’s impression that Hall had a gun in his waistband, and didn’t explicitly find

that the teller’s impression was reasonable. But the district court’s failure to use the

words “objective” or “reasonable” doesn’t mean that the district court applied a

subjective standard. First, we presume that the district court knows and follows the

                                            6
law. See United States v. Ruiz-Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007).

Moreover, as the government points out, both parties presented the district court with

the correct standard in their filings and at the sentencing hearing.1 So the absence of

an explicit recital of the objective standard doesn’t convince us that the district court

failed to apply that standard.

      Nor are we convinced that the district court relied solely on the teller’s

subjective impressions. Instead, it considered those subjective impressions along with

more objective evidence, including the video of the robbery. See Farrow, 277 F.3d

at 1268. And although the district court didn’t expressly state that the teller’s

subjective impressions were reasonable, such a conclusion is implicit in the statement

that “the video, when combined with the other evidence, including the victim’s

statement, is sufficient to support the enhancement.” R. vol. 2, 12. Further, “the other

evidence” also includes the undisputedly threatening note, which further corroborates

the teller’s belief that Hall had a weapon by implying that Hall had the capacity to

“hurt” people if the teller failed to comply with his demands. Id. at 5, 12. Thus, we

reject Hall’s argument that the district court applied an incorrect subjective standard.

      Second, Hall suggests that even if the district court applied the correct

objective standard, it erred in concluding that the evidence was legally sufficient to


      1
        The record belies Hall’s argument that the government “effectively argu[ed]
for application of a subjective standard” at the sentencing hearing. Aplt. Br. 12. The
government did focus on the teller’s impressions. But it also presented the district
court with the correct law on the objective standard. Moreover, after the
government’s argument, Hall’s counsel again cited the objective standard, thereby
providing the district court with the correct governing law.
                                            7
satisfy that standard. Specifically, Hall asserts that the factors the district court relied

on—including the teller’s impression that Hall had a gun, the video corroborating

some of what the teller reported and showing Hall reaching toward his waistband,

and Hall’s threatening note—are legally insufficient to warrant the enhancement. In

support, Hall contends that the district court lacked adequate contextual information

to credit the teller’s report of a weapon. But that’s just not the case; the video

corroborated the teller’s report and provided sufficient context. Hall also points out

that the video shows the robbery occurred peacefully and without other bank

customers becoming aware of it. That may be, but it doesn’t negate the other

evidence supporting the reasonableness of the teller’s impression that Hall had a gun:

the threatening note and the security footage showing Hall reaching for his

waistband.

       Indeed, the facts of this case are very similar to the facts in United States v.

Abbott, 69 F. App’x 936 (10th Cir. 2003) (unpublished).2 There, the bank teller

reported that the “defendant appeared to have his hand on an object with a black

handle.” Abbott, 69 F. App’x at 937. Here, the teller reported that Hall put his hand

on what the teller believed was a black handgun at Hall’s waistline. There, like here,

security footage corroborated the teller’s report by showing the defendant moving his


       2
         Although unpublished cases lack precedential value, we may rely on them if
they “ha[ve] persuasive value with respect to a material issue in a case and would
assist the court in its disposition.” United States v. Austin, 426 F.3d 1266, 1274 (10th
Cir. 2005); see also 10th Cir. R. 32.1(A) (“Unpublished decisions are not
precedential, but [they] may be cited for their persuasive value.”). We find Abbott
persuasive in these circumstances.
                                             8
hands in the way the teller described—and in a way that indicated he might have a

weapon. See id. And there, like here, the defendant presented a note that didn’t

expressly mention a weapon but was nevertheless threatening. See id. We found this

record sufficient to impose the enhancement, despite the defendant’s argument that

“it [wa]s undisputed that he did not possess a ‘firearm’ during the robbery.” Id.

at 937–38. And in United States v. Bates, the Eleventh Circuit reached the same

conclusion based on similar facts. See 213 F.3d 1336, 1338–39 (11th Cir. 2000)

(affirming enhancement where defendant threatened to hurt teller and then reached

toward his waistband and “simulated possession of what appeared to be a dangerous

weapon”). We reach the same conclusion in this case.3

                                      Conclusion

      We decline to consider Hall’s forfeited and waived argument that the district

court erred in failing to make a finding about which “object” supported the



      3
         The dissent would find the evidence insufficient to support the enhancement
based primarily on the absence of testimony from the teller. In particular, the dissent
concludes that because Hall objected to the enhancement, the district court couldn’t
rely on the teller’s statement as recounted in the PSR. But Hall never voiced such an
objection below. On the contrary, he told the district court that the teller’s “subjective
view [was] certainly something that the court [could] consider.” R. vol. 2, 9–10
(emphasis added). In other words, Hall clearly assumed that the teller’s statement—
although recounted in the PSR and not presented as testimony at the sentencing
hearing—was evidence that the district court could consider. As such, Hall forfeited
any argument based on the absence of the teller’s testimony by failing to raise it
below. See United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007) (noting
“that issues not presented below are forfeited on appeal”). Additionally, we question
whether Hall in fact raised this argument on appeal. And even assuming he did, he
fails to argue for plain error. Accordingly, we treat this argument as waived and
decline to consider it. See Kearn, 863 F.3d at 1313.
                                            9
enhancement. And because the district court applied the correct legal standard and

the evidence was legally sufficient to satisfy that standard, we affirm.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                           10
No. 18-2022, United States v. Hall
BRISCOE, Circuit Judge, dissenting.


       I respectfully dissent. In my view, the government failed to meet its burden of

proving that “a dangerous weapon was brandished or possessed” by Hall. U.S.S.G.

§ 2B3.1(b)(2)(E). Consequently, I would reverse the judgment of the district court and

remand for resentencing.


                                              I


       Hall, as noted by the majority, pleaded guilty to a single count of robbing a Wells

Fargo bank in Albuquerque, New Mexico, in violation of 18 U.S.C. § 2113.

       Following Hall’s guilty plea, the probation office prepared a presentence

investigation report (PSR) and submitted it to the district court and the parties. In

describing the offense conduct, the PSR stated, in pertinent part:

              In summary, the defendant robbed a bank by passing the teller a note
       stating “keep calm, give me the money and no one gets hurt.” The
       defendant then raised his shirt and grabbed what the teller perceived to be a
       handgun. The defendant partially drew the object and then placed it back
       into his waistband, creating the impression the object was a dangerous
       weapon. The teller felt threatened and handed the defendant took [sic]
       $2,456 dollars.

Supp. ROA, Vol. 1 at 4. The PSR, in turn, based upon that factual description of the

offense, applied a base offense level of 20 pursuant to U.S.S.G. § 2B3.1(a), a two-level

increase pursuant to U.S.S.G. § 2B3.1(b)(1) because “the property of a financial

institution . . . was taken,” and a three-level increase pursuant to U.S.S.G.

§ 2B3.1(b)(2)(E) because “[t]he defendant created the impression he possessed a
dangerous weapon.” Id. at 5. After decreasing the offense level by three levels for

acceptance of responsibility, the PSR arrived at a total offense level of 22. That total

offense level, when combined with Hall’s criminal history category of IV, resulted in an

advisory Guidelines imprisonment range of 63 to 78 months.1

       Hall objected to the PSR’s description of the offense and, in turn, its proposed

§ 2B3.1(b)(2)(E) enhancement. To begin with, Hall denied that he ever raised his shirt

with one hand, grabbed what appeared to be a handgun, or partially drew the weapon

before putting it back in place. ROA, Vol. 1 at 7. Hall also disputed possessing any

weapon. Id. at 7–8. Hall in turn argued that he “did not create the impression that he

possessed a dangerous weapon” and “did not make any movements which would lead a

reasonable person to believe he possessed a firearm.” Id. at 8. Hall acknowledged that

the bank had provided law enforcement officials with a video taken by a surveillance

camera inside the bank lobby, but he asserted that the video “d[id] not support the

three-level enhancement.” Id.

       The probation officer responded to Hall’s objection by stating, in pertinent part:

       The video was reviewed several times. In the video, the defendant is seen
       walking up to the teller and producing a robbery note. The note stated,
       “keep calm and give me the money and no one gets hurt.” In the video,
       after the defendant puts the note on the counter, his hands go below the
       view of the camera. There is a brief moment in the video where it does
       appear the defendant lifted his shirt with his right hand and has his hand
       placed near his stomach area. Unfortunately, the video does not clearly
       show what the defendant is doing with his hand. From the video, it is
       unclear if there is anything in the defendant’s waistband. However, the
       victim reported he saw the defendant lift his shirt and grab what appeared

       1
        Without the § 2B3.1(b)(2)(E) enhancement, the advisory Guidelines
imprisonment range would have been 46 to 57 months.
                                             2
       to be a firearm. The video appears to corroborate at least part of the
       victim’s story. The defendant’s action, combined with the note, would lead
       a reasonable person to believe the defendant had a weapon in his
       possession. It appears the three level enhancement is appropriately applied.

Supp. ROA, Vol. 1 at 22.

       At the sentencing hearing, defense counsel again objected to the proposed

§ 2B3.1(b)(2)(E) enhancement, arguing that “there [was] not a firearm or any other

weapon secreted on . . . Hall’s body” and “also that it [wa]s not [Hall’s] intention to give

the impression that he [wa]s so armed with either a knife or any other sort of dangerous

weapon or handgun.” ROA, Vol. 2 at 6.

       Government counsel responded by asserting that the “victim teller,” who “had

been working at the bank for approximately 10 months,” had “the perspective” that Hall

“ha[d] something with which he may hurt” the teller “or other individuals” and “was

[thus] placed in fear.” Id. at 8–9. Government counsel stated that the teller “shared that

perspective with the [investigating law enforcement] agent at the time he was

interviewed.” Id. at 9. Government counsel further asserted that “the defendant’s motion

towards his pants where firearms are typically placed during . . . armed bank robberies”

was “visible” in the bank’s surveillance video. Id. at 9. Government counsel conceded

that the surveillance video—which was comprised solely of a series of still

photographs—was “kind of halting.” Id. But government counsel argued that, “from the

perspective of the teller, it was realtime, and in that realtime, he perceived this defendant

to have a firearm[, a]nd he described it as a black semiautomatic handgun.” Id.




                                              3
       Defense counsel responded to government’s counsel’s argument by emphasizing

that, under Tenth Circuit case law, a teller’s subjective state of mind is “‘never

controlling of the outcome’” and that, instead, “the standard overall is an objective one.” 2

Id. at 9–10 (quoting United States v. Farrow, 227 F.3d 1260, 1268 (10th Cir. 2002)).

Defense counsel in turn argued, after discussing the deficiencies in the surveillance video,

that “there is an objective standard, and I think looking at it objectively, I don’t think that

the government has met their burden to support the application of that three-point

enhancement.” Id. at 10.

       In ruling on the objection, the district court stated that it was “undisputed that the

defendant did not brandish or possess an actual weapon.” Id. at 11. The district court in

turn noted that the “probation officer [proposed] this enhancement based on” a “statement



       2
         The majority suggests that defense counsel’s statement amounted to a concession
“that the teller’s statement . . . was evidence that the district court could consider.” O&J
at 9 n.3. That interpretation, however, clearly takes defense counsel’s statement out of
context. As discussed above, the sole point of defense counsel’s statement was that
Tenth Circuit law requires a district court to take an objective view of the evidence before
it. In my view, the statement was not intended as any type of concession that it was
proper for the district court to treat as evidence the PSR’s summary description of the
victim’s statement to a law enforcement agent.
        The majority in turn concludes that “Hall forfeited any argument based on the
absence of the teller’s testimony by failing to raise it below.” Id. And, lastly, the
majority concludes that Hall “waived” the issue on appeal by “fail[ing] to argue for plain
error” review. Id. In my view, this is patently unfair. Rather than acknowledging that
government counsel erred by failing to present the victim teller as a witness at the
sentencing hearing, the majority wrongly takes defense counsel to task and effectively
creates an issue of ineffective assistance of defense counsel.
        The proper course, in my view, is to recognize and correct the sentencing error
that occurred in this case, rather than effectively forcing Hall to seek relief for that error
in a § 2255 postconviction proceeding.

                                               4
of the victim who reported that he saw defendant lift his shirt and grab what appeared to

be a firearm and the robbery note which state[d] ‘keep calm and give me the money and

no one gets hurt.’” Id. at 11–12. The district court concluded that “the video was not

dispositive or clear on this issue.” Id. at 12. But the district court concluded “that the

video, when combined with the other evidence, including the victim’s statement, [wa]s

sufficient to support the enhancement.” Id. The district court therefore denied the

objection, adopted the PSR’s sentencing calculations, and sentenced Hall to a term of

imprisonment of 63 months, a sentence at the very bottom of the advisory Guidelines

sentencing range.

                                              II

       Section 2B3.1 of the United States Sentencing Guidelines applies to robbery

offenses. Subsection (a) thereof directs that a base offense level of 20 shall apply to all

such offenses. Subsection (b), in turn, requires the application of specific increases that

are based on the specific offense characteristics. Of relevance here is subsection

(b)(2)(E), which states that “if a dangerous weapon was brandished or possessed, increase

by 3 levels.” U.S.S.G. § 2B3.1(b)(2)(E). Application Note 2 to § 2B3.1 states:

               Consistent with Application Note 1(E)(ii) of § 1B1.1 (Application
       Instructions), an object shall be considered to be a dangerous weapon for
       purposes of subsection (b)(2)(E) if (A) the object closely resembles an
       instrument capable of inflicting death or serious bodily injury; or (B) the
       defendant used the object in a manner that created the impression that the
       object was an instrument capable of inflicting death or serious bodily injury
       (e.g., a defendant wrapped a hand in a towel during a bank robbery to create
       the appearance of a gun).

Id. § 2B3.1 cmt n.2.


                                              5
       Application Note 1(E)(ii) of U.S.S.G. § 1B1.1 states that the term “dangerous

weapon” includes

       an object that is not an instrument capable of inflicting death or serious
       bodily injury but (I) closely resembles such an instrument; or (II) the
       defendant used the object in a manner that created the impression that the
       object was such an instrument (e.g., a defendant wrapped a hand in a towel
       during a bank robbery to create the appearance of a gun).

Id. cmt n.1(E)(ii).

                                             III

       Federal Rule of Criminal Procedure 32(i)(3) provides that “[a]t sentencing,” a

district court “may accept any undisputed portion of the [PSR] as a finding of fact,” but

“must—for any disputed portion of the [PSR] or other controverted matter—rule on the

dispute or determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing.” Fed. R.

Crim. P. 32(i)(3)(A)–(B). In this case, Hall disputed the PSR’s description of the offense

conduct and its related proposal to apply a three-level enhancement pursuant to

§ 2B3.1(b)(2)(E). Consequently, the district court was not allowed to accept the PSR’s

description of the offense conduct as its finding of fact, and instead was obligated to rule

on Hall’s objection and make relevant findings regarding the offense conduct. Further, it

was the government’s burden to prove the facts necessary to support the PSR’s proposed

enhancement under § 2B3.1(b)(2)(E). See United States v. Villanueva, 821 F.3d 1226,

1239 (10th Cir. 2016) (“The government carries the burden of proving by a

preponderance of the evidence that an enhancement is appropriate.” (quotations

omitted)); United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014) (“When a

                                              6
defendant objects to a fact in a presentence report, the government must prove that fact at

a sentencing hearing by a preponderance of the evidence.” (quotations omitted)).

       Hall argues, and I agree, that the government failed to meet its burden of proof on

the § 2B3.1(b)(2)(E) enhancement. By challenging the PSR’s statement that he

possessed and brandished an object that looked like a firearm, Hall placed that fact at

issue and effectively imposed on the government the burden of proving that fact at the

sentencing hearing by a preponderance of the evidence. At the sentencing hearing,

however, the government presented no witness testimony and, instead, simply pointed the

district court to the surveillance video and the PSR’s summary of the victim teller’s

statement to a law enforcement agent.3 Although the surveillance video was admitted as

an exhibit at the sentencing hearing, it did not establish, and indeed could not have

established, that Hall possessed and brandished an item that looked like a firearm. That

is because the surveillance camera was positioned in a manner that the teller counter

blocked the view of Hall’s body from the stomach down. Consequently, the still photos

contained in the video do not establish what, if anything, Hall did with his hands during

the robbery and whether or not, as alleged by the victim teller, he reached into his

waistband and grasped an item. As for the victim’s purported statement to a law

enforcement agent, the record on appeal contains no copy of any such statement (and no

indication that any such statement was admitted at the sentencing hearing), and thus we


       3
         Nothing in the record indicates that the probation officer spoke with anyone with
first-hand knowledge of the crime, including the victim teller. Nor is there any indication
in the record that any written or videotaped statement from the teller to a law
enforcement agent was introduced as evidence at the sentencing hearing.
                                             7
have no idea when the statement was made, to whom it was made, whether it was

recorded in any manner, and what the teller actually said during the interview. In short, it

amounted to no evidence at all. Thus, the only actual evidence presented by the

government at the sentencing hearing—the surveillance video—was insufficient to

satisfy the government’s burden of proof. This is particularly true in this case where the

government’s proof in support of the enhancement rested upon the perception of a

witness (the victim teller) who was not called to testify.

       The majority in this case, in concluding that the evidence presented at the

sentencing hearing was sufficient to satisfy the government’s burden of proof, states that

“the facts of this case are very similar to the facts in United States v. Abbott, 69 F. App’x

936 (10th Cir. 2003) (unpublished).” O&J at 8. Although the facts of the two crimes

might be similar, there is one important procedural distinction. In Abbott, the bank teller

who was presented with the robbery note testified at the sentencing hearing. 69 F. App’x

at 937 (“At sentencing, the bank teller testified that defendant appeared to have his hand

on an object with a black handle . . . .”). In Hall’s case, in contrast, the government

presented no witnesses. Because Hall timely objected to the PSR and its description of

the crime, it was the government’s duty to present evidence—including testimony from

the victim teller—to support the § 2B3.1(b)(2)(E) enhancement. Unfortunately, the

government failed to do so.

       For these reasons, I vote to reverse the judgment of the district court and remand

for resentencing.



                                              8
