                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALSDecember 12, 2012
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-4021
 v.                                           (D.Ct. No. 1:11-CR-00082-DB-1)
                                                          (D. Utah)
 DENNIS LEE JONES,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


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



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

unanimously that oral argument would not materially assist in the determination

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

therefore ordered submitted without oral argument.



      Appellant Dennis Lee Jones appeals his sixty-month sentence, arguing his


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
sentence is procedurally unreasonable because the district court enhanced his

sentence two levels under United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 2K2.1(b)(1)(A) for relevant conduct involving three or more

firearms. We exercise our jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291 and affirm Mr. Jones’s sentence.



                               I. Factual Background

      On or before April 25, 2011, Dustin John, Mr. Jones, and Mr. Jones’s

girlfriend, Tara Rust, drove to her aunt’s neighbor’s home with the intent to

burglarize it, after learning the occupant spent little time there. While Ms. Rust

waited in her vehicle, Mr. Jones and Mr. John broke into the home and stole

several items, including jewelry, coins, three rifles, a shot gun, and a safe, which

they loaded into the vehicle. They returned to Ms. Rust’s and Mr. Jones’s home,

where Mr. John was also staying. Mr. John then cut the hinges off the safe,

which contained two revolvers and additional jewelry. Ms. Rust and Mr. Jones

kept the jewelry, while Mr. John allegedly took the firearms to his grandmother’s

home. Later, based on a tip, officers recovered one of the stolen rifles from the

rafters of Mr. Jones’s and Ms. Rust’s garage as well as the stolen jewelry in their

bedroom.




                                         -2-
                            II. Procedural Background

      An indictment issued, which stated in Count III that Mr. Jones and the

others:

      knowingly received, possessed, concealed, stored, bartered, and sold
      stolen firearms, ... shipped or transported in interstate commerce,
      namely (1) Smith & Wesson model 300 rifle; (2) Remington, model
      700, 30-06 rifle; (3) Winchester .22 caliber rifle; (4) Mossberg 12
      gauge shotgun; (5) Smith & Wesson .357 Magnum revolver; and/or
      (6) Smith & Wesson .44 magnum revolver, knowing and having
      reasonable cause to believe the firearms had been stolen, all in
      violation of 18 U.S.C. § 922(j).

Following his arrest, Mr. Jones admitted to burglarizing the home in question and

explained he took the jewelry and coins from the home, while Mr. John carried

out the firearms and safe. In a written statement, Mr. Jones said, “I didn’t want

nothin’ to do with the guns so I don’t know what [Mr. John] planned to do with

them.” He also indicated he was not aware Mr. John had brought one of the rifles

back to their home. Later, in his statement in advance of his guilty plea, Mr.

Jones admitted he possessed the Smith & Wesson .357 Magnum revolver when it

was removed from the safe and he physically handled it. He then pled guilty to

Count III of the indictment with respect to only that firearm.



      Following his guilty plea, a probation officer prepared a presentence report,

calculating Mr. Jones’s sentence under the applicable 2011 Guidelines. The

probation officer set Mr. Jones’s base offense level at twenty pursuant to U.S.S.G.


                                         -3-
§ 2K2.1(a)(3) for possession of a stolen firearm subsequent to sustaining a felony

conviction for a controlled substance offense. Because relevant conduct during

the offense involved three to seven firearms, the probation officer also

recommended the contested two-level offense increase under U.S.S.G.

§ 2K2.1(b)(1)(A). She also recommended a four-level increase under U.S.S.G.

§ 2K2.1(b)(6) for Mr. Jones’s possession of a firearm in connection with his

felony offense and a three-level reduction under U.S.S.G. § 3E1.1 for his

acceptance of responsibility, resulting in a total offense level of twenty-three.



      A total offense level of twenty-three, together with Mr. Jones’s criminal

history category of IV, resulted in a recommended advisory Guidelines range of

seventy to eighty-seven months imprisonment. The probation officer also stated

an upward departure may be warranted based on Mr. Jones’s four additional

pending state criminal cases involving significant felony offenses unrelated to the

instant offense. The probation officer also pointed out Mr. Jones’s extensive

substance abuse, including methamphetamine use from 1993 or 1994 until his

instant arrest, and the fact he presently suffers from major medical problems,

including pulmonary arterial hypertension and a weak and enlarged heart, for

which he is on several medications.



      Mr. Jones filed a formal objection to the probation officer’s inclusion of the

                                          -4-
contested two-level increase under U.S.S.G. § 2K2.1(b)(1)(A) for relevant

conduct involving three to seven firearms. While Mr. Jones admitted he

participated in the burglary, he contested the increase based on his prior statement

he did not want the stolen firearms, the fact he made only fleeting contact with

the handgun he physically held, and his assertion he played no role in attempting

to sell the firearms and did not intend to receive proceeds from their sale. In

apparent reference to his constructive possession of the rifle found in the rafters

of his garage, and express reference to the revolver he handled, Mr. Jones argued

no reliable evidence showed he sought to obtain, possess, or distribute more than

two firearms. He also asserted his diminished medical condition prevented him

from carrying the safe out of the home.



      At sentencing, Mr. Jones renewed his objection to the two-level

enhancement. In opposition, the government argued Mr. Jones was responsible

for the conduct of Mr. John and otherwise aiding, assisting, or abetting him in his

possession of all the firearms. After considering the parties’ arguments, the

district court denied Mr. Jones’s objection, finding “by a preponderance of the

evidence that the government ... met its burden of persuading [it] that there were

three or more firearms involved” in the offense for the purpose of applying the

two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A). It further stated:

      I agree in particular with [government counsel] and his statement

                                          -5-
      about the Guidelines anticipating that each willing participant in this
      caper is responsible for what the mission was intended to do and
      what it actually did. Under those circumstances, I find that he is
      appropriately credited with an enhancement for the offense involving
      more than two firearms.



      Before rendering a sentence, the district court also considered Mr. Jones’s

argument that both his lack of involvement with the firearms and serious medical

condition warranted a downward variance as well as the government’s argument

his medical condition did not alter his capacity to re-offend, as evidenced by his

additional pending state felony cases. After hearing these arguments, the district

court sentenced Mr. Jones to a below-Guidelines-range sentence of sixty months

imprisonment based on his “extraordinary physical impairment,” even though it

also found his impairment “has been largely by his own choices of health

debilitating activities.”



                                   III. Discussion

      On appeal, Mr. Jones argues his sentence is procedurally unreasonable

because the district court failed to make the necessary findings and misapplied the

law in enhancing his sentence two levels under U.S.S.G. § 2K2.1(b)(1)(A) for

relevant conduct involving three or more firearms. In support, Mr. Jones asserts

§ 2K2.1(b)(1)(A) requires actual, constructive, or planned possession of the

firearms at issue, rather than a finding of “pure enterprise liability,” “accomplice

                                         -6-
liability,” or “joint enterprise,” as determined by the district court in describing it

as a burglary “caper.” He contends “the district court failed to make any explicit

finding as to the fundamental possession issue,” imposing the enhancement

instead on its erroneous holding such a joint burglary caper included the theft of

the multiple firearms stolen. He suggests no evidence infers they knew the house

contained firearms, they were the object of the burglary, or that Mr. Jones

intended to steal or possess firearms. Instead, Mr. Jones argues, the record shows

he and Ms. Rust opposed having any guns in their home, which is why they took

the jewelry instead of the firearms. 1



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

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

800, 802, 805 (10th Cir. 2008). Thus, we review “‘all sentences–whether inside,

just outside, or significantly outside the Guidelines range–under a deferential

abuse of discretion standard’” in which we afford substantial deference to the

district court. Id. at 806 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

“Our appellate review for reasonableness includes both a procedural component,

... as well as a substantive component, which relates to the length of the resulting


      1
        While irrelevant to our disposition on appeal, Mr. Jones states evidence
shows he and Ms. Rust were “opposed to weapons following the death of a family
member” but fails to cite to the record in support of such “evidence,” nor has our
review of the record disclosed such evidence.

                                           -7-
sentence.” Id. at 803. Here, Mr. Jones appeals only the procedural component

based on his contention the district court impermissibly applied a two-level

enhancement under § 2K2.1(b)(1) without finding he constructively possessed the

firearms at issue.



      “Procedural reasonableness addresses whether the district court incorrectly

calculated or failed to calculate the Guidelines sentence, ... relied on clearly

erroneous facts, or failed to adequately explain the sentence.” United States v.

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

district court properly calculated a sentence, we review its legal conclusions de

novo and its factual findings for clear error. See United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006) (per curiam). In reviewing sentencing

enhancements, including the district court’s factual findings, we “view the

evidence and inferences therefrom in the light most favorable to the district

court’s determination.” United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir.

2005). “ A finding of fact is clearly erroneous only if it is without factual support

in the record or if the appellate court, after reviewing all of the evidence, is left

with a definite and firm conviction that a mistake has been made.” United States

v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011) (internal quotation marks

omitted). With regard to the explanation a district court provides, it must “‘state

in open court the reasons for its imposition of the particular sentence’” and satisfy

                                           -8-
us that it “has considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356 (2007) (quoting 18 U.S.C. § 3553(c)). While a court must provide

at least a general statement of its reasons for the sentence imposed, it “‘need not

explicitly refer to either the § 3553(a) factors or respond to every argument for

leniency that it rejects in arriving at a reasonable sentence.’” United States v.

Lente, 647 F.3d 1021, 1034-35 (10th Cir. 2011) (quoting United States v.

Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008)).



         In addition, we give due deference to the district court’s application of the

Guidelines to the facts. See Maestas, 642 F.3d at 1319. While we give the

district court deference when there is a “range of possible outcomes the facts and

law at issue can fairly support,” we also “will not hesitate to find abuse where a

decision is either based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error of judgment.” United States v.

McComb, 519 F.3d 1049, 1053-54 (10th Cir. 2007) (internal quotation marks

omitted). Finally, the government bears the burden of proving facts in support of

a sentencing enhancement by a preponderance of the evidence, see United States

v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999), including those pertaining to

relevant conduct. See United States v. Garcia, 411 F.3d 1173, 1177 (10th Cir.

2005).

                                            -9-
      Section 2K2.1 of the Guidelines establishes the base offense level as well

as certain enhancements for offenses involving the “unlawful receipt, possession,

or transportation of firearms.” U.S.S.G. § 2K2.1(a) and (b). Section 2K2.1 also

recommends a two-level offense increase “[i]f the offense involved three or more

firearms.” U.S.S.G. § 2K2.1(b)(1)(A). Commentary to § 2K2.1 states, “[f]or

purposes of calculating the number of firearms under subsection (b)(1), count

only those firearms that were unlawfully sought to be obtained, unlawfully

possessed, or unlawfully distributed, including any firearm that a defendant

obtained or attempted to obtain by making a false statement to a licensed dealer.”

U.S.S.G. § 2K2.1(b)(1) cmt. n.5.



      “A defendant is not only responsible for the firearms he personally and

unlawfully sought to obtain, possess, or distribute,” but “he is also responsible for

his relevant conduct” related to the offense. United States v. Damon, 595 F.3d

395, 401 (1st Cir. 2010). Accordingly, a district court, in deciding whether a two-

level enhancement applies under § 2K2.1(b)(1), may consider the defendant’s

“relevant conduct,” as outlined in U.S.S.G. § 1B1.3. 2 It provides the following

“shall be taken into account” when determining “relevant conduct”:


      2
        “An ‘offense,’ as defined by the Sentencing Guidelines, includes the
offense of conviction and all relevant conduct under § 1B1.3, unless a different
meaning is otherwise specified.” United States v. Tagore, 158 F.3d 1124, 1128
(10th Cir. 1998) (citing to U.S.S.G. § 1B1.3 cmt. n.1).

                                         -10-
      (1)(A) all acts and omissions committed, aided, abetted, [or]
      counseled, ... by the defendant; and

      (B) in the case of a jointly undertaken criminal activity (a criminal
      plan, scheme, endeavor, or enterprise undertaken by the defendant in
      concert with others, whether or not charged as a conspiracy), all
      reasonably foreseeable acts and omissions of others in furtherance of
      the jointly undertaken criminal activity, that occurred during the
      commission of the offense of conviction, [or] in preparation for that
      offense ....

U.S.S.G. § 1B1.3(a)(1)(A) and (B). Commentary to § 1B1.3 states “a defendant

is accountable for the conduct (acts and omissions) of others that was both ... in

furtherance of the jointly undertaken criminal activity” and “reasonably

foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n.2.

In making a relevant conduct assessment, we have held the district court may

consider the dismissed counts of an indictment. See United States v. Gay, 240

F.3d 1222, 1229 n.6 (10th Cir. 2001).



      In this case, it is clear Mr. Jones, Ms. Rust, and Mr. John participated in a

jointly-undertaken criminal scheme, plan, or enterprise to commit burglary of the

home in question. While Mr. Jones and the others may not have known the exact

contents of the home they intended to burglarize, it is evident they intended to

steal and thereby illegally possess items of value and, in so doing, took jewelry,

coins, and the firearms identified in the indictment. It is also evident Mr. John

took the firearms in furtherance of their jointly-undertaken criminal activity, and


                                         -11-
by participating in the burglary, Mr. Jones not only aided and abetted him in the

taking of the firearms but could reasonably have foreseen Mr. John would obtain

or seek to obtain firearms as items of value. 3 Indeed, Mr. Jones knew at the time

the burglary was transpiring that Mr. John removed and had possession of at least

four firearms from the home.



      These are the grounds on which the government’s argument was predicated.

By expressly agreeing with that argument and further explaining Mr. Jones, as a

willing participant, was responsible for the burglary caper, the district court

provided a sufficient explanation for the enhancement. Moreover, we give due

deference to the district court’s application of § 2K2.1(b)(1)(A) to the facts and

further conclude the facts and the law fairly support the district court’s conclusion

Mr. Jones is responsible for Mr. John’s unlawful taking and possession of at least

four firearms removed from the home, regardless of whether Mr. Jones knew in

advance those firearms were contained in the home or did not physically remove

them himself.



      While this alone is sufficient for the two-level enhancement, we disagree

      3
        Arguably, while the commentary limiting § 2K2.1(b)(1) to “firearms that
were unlawfully sought to be obtained” is most likely directed to the illegal
purchase of firearms, the commentary also does not limit the enhancement to
exclude other conduct of unlawfully seeking to obtain firearms, such as through a
burglary.

                                        -12-
with Mr. Jones’s argument he did not “constructively possess” more than two

firearms. This is because Mr. Jones admitted to watching Mr. John take the

firearms from the home and place them inside the vehicle they used to flee the

scene of the burglary. As a result, he not only participated in furtherance of the

joint criminal activity of burglary in which Mr. John unlawfully took possession

of the firearms, but he had knowing constructive possession of four of the

firearms in the vehicle he jointly occupied. See United States v. Gambino-Zavala,

539 F.3d 1221, 1229 (10th Cir. 2008) (holding constructive possession in a joint

occupancy situation does not require a showing defendant intended to exercise

dominion or control over the firearms). Thus, regardless of his self-serving

assertion he did not want to have anything to do with the firearms, Mr. Jones

constructively possessed the four firearms placed in the car, which, together with

his actual possession of the one removed from the safe, is also sufficient to apply

a two-level enhancement under § 2K2.1(b)(1) for relevant conduct involving three

or more firearms.



      For these reasons, the district court’s application of the two-level

enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for relevant conduct involving

three or more firearms has factual support in the record, and we cannot say the

district court’s finding is clearly erroneous or that we are left with a definite and

firm conviction that a mistake has been made. Accordingly, the district court did

                                          -13-
not abuse its discretion or otherwise err in applying the two-level enhancement

under § 2K2.1(b)(1) for the purpose of calculating his sentence. As a result, Mr.

Jones’s sixty-month below-Guidelines sentence is procedurally reasonable.



                                  IV. Conclusion

      Accordingly, we AFFIRM Mr. Jones’s sentence.

                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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