                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                    January 6, 2020

                                                                     Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                        Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2165

 JEREMIAS ROBERTSON,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 1:17-CR-02573-JAP-1)
                       _________________________________

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant - Appellant.

Howard R. Thomas, Assistant United States Attorney (and John C. Anderson, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff -
Appellee.
                        _________________________________

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

KELLY, Circuit Judge.
                        _________________________________

      Defendant-Appellant Jeremias Robertson pled guilty to possession of a firearm

and ammunition by a felon, 18 U.S.C. § 922(g)(1), and was sentenced to a term of 84
months’ imprisonment followed by three years’ supervised release.1 On appeal he

challenges the district court’s findings that he pointed a gun at an officer, thereby

resulting in a four-level enhancement for use or possession of a firearm in connection

with another felony offense (aggravated assault with a deadly weapon), and a six-level

enhancement for assaulting the officer in a manner creating a substantial risk of bodily

injury. U.S.S.G. §§ 2K2.1(b)(6) & U.S.S.G. § 3A1.2(c)(1). He argues that (1) the

district court should have required proof by clear and convincing evidence, (2) under any

standard of proof, the evidence did not support the district court’s findings, and (3) the

district court erroneously drew a negative inference from his silence at the sentencing

hearing. See Aplt. Br. at 1–3. We exercise jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), and affirm.



                                        Background

       The district court held an evidentiary hearing. In August 2017, Albuquerque

Police Department officer Steven Arias responded to a 911 call reporting a man walking

through the downtown part of the city “pulling out a gun” and “pointing it at people.”

Aplee. Br. at 1 (citing V R. Ex. W). Mr. Robertson, who matched the description given

by the 911 caller, was walking in the area when the officer arrived. Id. at 2. Mr.


1
  The district court based the sentence upon an offense level of 27. In addition to the
enhancements, the district court applied a three-level reduction for acceptance of
responsibility and reduced his criminal history category to category IV. The guideline
range for a person in category IV, level 27 who was convicted of this crime is 100–120
months’ imprisonment (the upper bound of the range is capped at 120 months, the
statutory maximum for the crime).
                                              2
Robertson crossed First Street and headed northeast through a dirt parking lot. Aplt. Br.

at 5. Officer Arias stopped his police vehicle at the north end of First Street. Id.

Spotting Mr. Robertson, Officer Arias accelerated toward him. Id. Mr. Robertson

quickened his pace, crossed to the sidewalk on the east side of First Street, and passed out

of Officer Arias’s line of sight behind a tow truck. IV R. 21–22. Officer Arias stopped

his vehicle next to the tow truck and exited. Id. The officer testified that based on the

description on the 911 call and Mr. Robertson’s proximity to the area, he believed there

was a high likelihood that an object in Mr. Robertson’s right hand was a gun. Id. at 23.

       Officer Arias rounded the tow truck and spotted Mr. Robertson, who continued to

move through the parking lot while partially obscured by cars. Id. 23:24–24:1. Officer

Arias crouched behind a car for cover and twice shouted “show me your hands.” Id. at

24:22; see Aplt. Br. at 6. According to Officer Arias, Mr. Robertson then “kind of turned

to the west looking over his left shoulder with a small caliber handgun in his right hand,

and he pointed it at [Officer Arias].” IV R. 23:1–11; Aplt. Br. at 3. Officer Arias then

took cover behind a sedan. IV R. 23:20–24:3.

       When Officer Arias looked back, Mr. Robertson was again “moving at a brisk

pace” toward the northeast. Aplt. Br. at 4. Officer Arias testified that he repeated his

commands and Mr. Robertson responded by saying something to the effect of “I didn’t

do anything wrong,” and “don’t shoot me.” Id. 56:1–13. Officer Arias testified that Mr.

Robertson then again pointed a gun at him over his shoulder, and the officer identified it

as a gun “because of the barrel.” Id. at 25:9–13. Fearing that Mr. Robertson might shoot,

Officer Arias fired a single round from his service rifle toward Mr. Robertson’s chest. Id.

                                              3
at 14–17. The bullet entered Mr. Robertson’s chest under his left armpit and

incapacitated him. Id. at 20–24. A handgun was later recovered near where Mr.

Robertson fell to the ground. Aplt. Br. at 7.

       The district court also heard testimony from Johnny Pinson, a bystander. Mr.

Pinson testified that he saw Mr. Robertson cross First Street before Officer Arias arrived.

IV R. 123:20–24. According to Mr. Pinson, Mr. Robertson appeared to be listening to

music at the time and did not have a gun in his hand. Id. at 123:2–10. Mr. Pinson also

testified that he did not see a gun in Mr. Robertson’s hands when he turned in response to

Officer Arias’s commands. Id. at 123:13–15. However, he later testified that “wouldn’t

have seen” whether Mr. Robertson had a gun in his right hand. Id. at 135:8–9.

       Mr. Robertson also presented evidence of Officer Arias’s troubled disciplinary

record and his “proclivity for violent confrontation.” Aplt. Br. at 8. Officer Arias was

removed from a Special Weapons and Tactics (SWAT) team because he fired three “bean

bag” shots at a man’s head. Id. He was also given a 32-hour suspension and a letter of

reprimand for that incident. Id. Officer Arias received a verbal reprimand for improper

use of force after he pointed his firearm at a man who had reported domestic violence

involving his neighbor. Id. at 8–9. He was suspended for 40 hours and sent to anger

management counseling for assaulting a police lieutenant. Id. at 9.

       The court acknowledged that it “had serious questions” about Officer Arias

because of his disciplinary history. IV R. 161:23. Nevertheless, it found his testimony

“supported in this case.” Id. at 161:24. The court also stated the following: “I’m a little



                                                4
surprised that I didn’t hear from the main player who would tell us that ‘no, I did not

point a gun at Officer Arias.’ I didn’t hear that testimony.” Id. at 161:25–162:2.

       Counsel stated Mr. Robertson’s position that he never pointed a gun at Officer

Arias. Id. at 162:3–10. The district court then said: “But he ha[s]n’t testified to that

under oath . . . And I’ve heard other testimony under oath that is not countered by that.”

Id. The district court explained that Mr. Pinson, while an “honest person,” had given

testimony that did “not fit what was shown on the video” evidence. Id. at 163. The

district court ultimately found that “testimony under oath, uncontradicted by direct

testimony to the contrary,” supported a finding that Mr. Robertson had twice pointed the

gun at Officer Arias. Id. at 166.



                                         Discussion

       This court reviews a district court’s factual findings at sentencing for clear error

and its legal conclusions de novo. United States v. Lozano, 921 F.3d 942, 946 (10th Cir.

2019). Factual findings are clearly erroneous if they are without factual support in the

record or if the court is left with a definite and firm conviction that a mistake has been

made. Id. We view the evidence in the light most favorable to the government. Id.

       Mr. Robertson urges a higher standard of proof. The district court found—over

Mr. Robertson’s objection—that he pointed a gun at a law enforcement officer. This

resulted in an increase of 10 levels, which more than doubled the initial guidelines range

from 46–57 months to 120 months (the statutory maximum). Aplt. Br. at 24. Because

this disputed fact had a disproportionate effect on his sentence, Mr. Robertson contends

                                              5
that due process requires the government to prove it by clear and convincing evidence

rather than by a preponderance of the evidence. Id. at 22 (citing United States v. Ray,

704 F.3d 1307, 1314 (10th Cir. 2013)).

       Generally, factual findings at the sentencing stage must be supported by a

preponderance of the evidence. United States v. Olsen, 519 F.3d 1096, 1104 (10th Cir.

2008). The Supreme Court has not yet held that due process requires a heightened

standard when a contested fact significantly changes the guidelines range of the sentence.

Five circuits have rejected that argument. See United States v. Villareal-Amarillas, 562

F.3d 892, 894–98 (8th Cir. 2009); United States v. Grubbs, 585 F.3d 793, 800–03 (4th

Cir. 2009); United States v. Fisher, 502 F.3d 293, 295–308 (3d Cir. 2007); United States

v. Brika, 487 F.3d 450, 461–62 (6th Cir. 2007); United States v. Reuter, 463 F.3d 792,

792–93 (7th Cir. 2006). Mr. Robertson points to a test adopted by the Ninth Circuit to

determine whether a fact must be proven by heightened standard at sentencing. Aplt. Br.

at 22; see United States v. Hymas, 780 F.3d 1285, 1290 (9th Cir. 2015). The Ninth

Circuit is the only circuit to adopt such a standard.

       The Supreme Court has not adopted a heightened standard of proof at sentencing

for contested facts, thus we hold that the correct standard of proof in this case was a

preponderance of the evidence. This issue has been foreclosed in this Circuit. See

United States v. Constantine, 263 F.3d 1122, 1125 n.2 (10th Cir. 2001) (“The Supreme

Court has left the choice of standard to the discretion of the courts of appeals . . . and

within the Tenth Circuit[,] the arguments for higher standards are ‘foreclosed by binding

precedent.’” (quoting United States v. Valdez, 225 F.3d 1137, 1143 n.2 (10th Cir. 2000));

                                               6
United States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993) (“We have clear

holdings that the preponderance standard applies to fact finding in the sentencing process.

. . . At least as concerns making guideline calculations the issue of a higher than a

preponderance standard is foreclosed in this circuit.”).2

       Mr. Robertson next contends that the district court’s factual finding that he

assaulted Officer Arias in a manner creating a substantial risk of bodily injury was

improper “[u]nder any standard of proof.” Aplt. Br. at 26. We review a district court’s

factual findings for clear error; because we decline to adopt a heightened standard for the

fact at issue in this case, we look for clear error in the findings that the judge made by a

preponderance of the evidence. See Lozano, 921 F.3d at 946.

       Mr. Robertson argues essentially that the district court erred when it credited

Officer Arias’s testimony that Mr. Robertson simultaneously pointed a handgun at him

and pleaded not to be shot. See Aplt. Br. at 26–31. The district court heard and

considered a variety of claims about that moment and assessed the credibility of the

officer under direct and cross-examination. Because the district court is in the best

position to observe witnesses, “[t]his court is loath to second-guess a district court’s

determination of a witness’s credibility.” United States v. Asch, 207 F.3d 1238, 1243

(10th Cir. 2000). The fact that the district court “had serious questions” about Officer



2
 We note that in Ray, we stated that we have “left open the possibility” that an
exceptional case might exist where a heightened standard is proper. 704 F.3d at 1314.
However, our caselaw predating Ray is clear that the issue was already settled and one
panel cannot overrule another. See United States v. Holcomb, 853 F.3d 1098, 1100 (10th
Cir. 2017).
                                              7
Arias’s background but nonetheless decided that “his testimony is supported in this case”

shows that it engaged in exactly the kind of on-the-ground balancing and demeanor

judgments for which district courts administering hearings are particularly well-suited.

See IV R. 161:23–24. The district court’s findings by a preponderance thus have support

in the record and were not in clear error.

       Mr. Robertson’s final argument is that the district court drew a negative inference

from his decision not to testify at the sentencing hearing. Aplt. Br. at 31. Mr. Robertson

argues that United States v. Mitchell, 526 U.S. 314 (1999) establishes that it is reversible

error for a sentencing judge to “draw[] an adverse inference from the accused’s silence at

sentencing.” Aplt. Br. at 32. At sentencing, the court made the following remark:

       THE COURT: I have some serious questions about [Officer Arias], frankly.
       But I think his testimony is supported in this case. I’m a little surprised that
       I didn’t hear from the main player who would tell us that, “No, I did not
       point a gun at Officer Arias.” I didn’t hear that testimony.

IV R. 161:23–162:2. Mr. Robertson argues that this comment shows a violation of his

Fifth Amendment right to remain silent and to due process. Aplt. Br. at 31.

       Mr. Robertson contends that he sufficiently objected at sentencing by reminding

the court that Mr. Robertson did not have to testify to challenge the application of

enhancements because other testimony contradicted Officer Arias’s version of events,

and that any further objection would have been futile. Aplt. Reply Br. at 22; see IV R.

162:11–14. We disagree that counsel’s objection was sufficient. Because Mr. Robertson

raises this specific issue for the first time on appeal, we review the district court’s

statement for plain error. See United States v. Garcia-Caraveo, 586 F.3d 1230, 1232


                                               8
(10th Cir. 2009). Plain error is (1) error, (2) that is plain, (3) which affects Mr.

Robertson’s substantial rights, and (4) which seriously affects the “fairness, integrity, or

public reputation of judicial proceedings.” Id. (quoting United States v. Romero, 491

F.3d 1173, 1178 (10th Cir. 2007)). The error must be “clear or obvious.” United States

v. Pablo, 696 F.3d 1280, 1290 (10th Cir. 2012). It is a high standard for the appellant.

Garcia-Caraveo, 586 F.3d at 1232.

       The district court’s comments in this case are ambiguous. Had the district court

said it was basing the sentence on Mr. Robertson’s silence, the district court would have

committed error. The district court expressed “surprise” that it had not heard from Mr.

Robertson, which could mean that the court was relying upon his failure to take the stand.

But the statement also could be taken at face value. The court’s statement that Officer

Arias’s testimony “was uncontradicted by direct testimony to the contrary” was merely

an observation that after discounting Johnny Pinson’s testimony, see IV R. 135:4–16,

157:18–158:6, the only remaining testimony on the issue was that Mr. Robertson pointed

the gun at Officer Arias. Given the ambiguity in the court’s statements, if there was

error, it was not “clear or obvious” and would not satisfy the second element of the plain

error test. See United States v. Fonseca, 744 F.3d 674, 684 (10th Cir. 2014) (concluding

that ambiguity in the district court’s ruling was not “plainly or obviously improper”); see

also United States v. Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002).

       AFFIRMED.




                                               9
No. 18-2165, United States v. Robertson
BRISCOE, Circuit Judge, concurring and dissenting.

       I agree with the majority’s conclusion that the district court was correct in

applying a preponderance of the evidence standard of proof, although I would also

address and reject Mr. Robertson’s additional contention that the district court erred in its

application of the preponderance standard. See Aplt. Br. at 15–21. The record provides

no indication that the district court applied an “ample evidence” standard, id. at 16, or

that it merely examined the quantum of the evidence presented, id. at 17. I agree that the

district court did not clearly err in its factual findings.

       I disagree, however, with the majority’s conclusion that the district court did not

plainly err by drawing an adverse inference from Mr. Robertson’s silence. By holding

Mr. Robertson’s silence against him in determining facts bearing upon the severity of his

sentence, the district court committed plain error and imposed an impermissible burden

on the exercise of his constitutional right against self-incrimination. I would, therefore,

reverse and remand for resentencing.

       As regards the first prong of plain error, Mr. Robertson has shown that the district

court erred at sentencing by drawing an adverse inference from his silence when

determining whether Mr. Robertson pointed a gun at Officer Arias. The Supreme Court

held in Mitchell that a district court commits reversible error by drawing any “adverse

inference from the defendant’s silence” at sentencing “in determining facts about the

crime which bear upon the severity of the sentence.” 526 U.S. at 316–17, 330 (emphasis

added) (concluding that the district court imposed an impermissible burden on the
exercise of the constitutional right against compelled self-incrimination “[b]y holding

[the defendant’s] silence against her in determining the facts of the offense at the

sentencing hearing”). The majority contends that the district court’s statements regarding

Mr. Robertson’s silence at sentencing are ambiguous, but it omits critical portions of the

sentencing transcript. The full exchange between Mr. Robertson’s counsel and the court

was as follows:

              THE COURT: I have some serious questions about [Officer
              Arias], frankly. But I think his testimony is supported in this
              case. I’m a little surprised that I didn’t hear from the main
              player who would tell us that, “No, I did not point a gun at
              Officer Arias.” I didn’t hear that testimony.

              MS. KATZE: Well, we’re here in a contested sentencing
              hearing because my client is saying, as we said throughout the
              objections in the sentencing memo, that he did not point the
              gun at - -

              THE COURT: But he hadn’t testified to that under oath . . .
              And I’ve heard other testimony under oath that is not
              countered by that.

ROA, Vol. IV, at 161–62 (emphasis added).

       The district court’s explicit consideration of Mr. Robertson’s failure to testify

under oath, as evidenced by this exchange with defense counsel, makes clear that Mr.

Robertson’s silence factored into the district court’s analysis of the “other testimony”

presented at the sentencing hearing. The district court would not have repeatedly

referenced the lack of testimony from Mr. Robertson in analyzing Officer Arias’s

testimony if Mr. Robertson’s failure to testify was not a consideration in its analysis.

When, as we see here, the defendant’s silence is a factor which persuades the sentencing


                                              2
court to rely on the testimony of other witnesses, the court commits error under Mitchell.

See Mitchell, 526 U.S. at 319 (finding reversible error where “‘[o]ne of the things’

persuading the [district] court to rely on the testimony of the codefendants [at sentencing]

was [the defendant’s] ‘not testifying to the contrary’”). While the district court at other

times discussed a lack of “direct testimony” contradicting Officer Arias’s account

generally, see ROA, Vol. IV, at 166, the district court’s focus in the above exchange was

on the absence of one specific piece of evidence—the testimony of Mr. Robertson. See

id. at 162 (“But he hadn’t testified to that under oath.”) (emphasis added).1 The district

court’s own statements make clear that it considered Mr. Robertson’s silence in

determining whether Mr. Robertson pointed a gun at Officer Arias.

       Having concluded that the district court committed error, I next consider whether

the error is plain—that is, whether it is “clear under current law.” United States v. Olano,

507 U.S. 725, 734 (1993). “An error is clear where ‘the Supreme Court or this court [ ]

[has] addressed the issue’ or where ‘the district court’s interpretation was clearly

erroneous.’” United States v. Cordery, 656 F.3d 1103, 1106 (10th Cir. 2011) (quoting

United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003)). That is the case here.

Mitchell made clear that a district court “may not draw [an] adverse inference” from a

defendant’s silence “in determining facts about the crime which bear upon the severity of


       1
         I emphasize that Mr. Robertson did not need to present any evidence whatsoever
because “the burden of proof fell on the government to trigger the enhancement.” United
States v. Gonzales, 931 F.3d 1219, 1224 (10th Cir. 2019); see Mitchell, 526 U.S. at 330
(“[t]he Government retains the burden of proving facts relevant to the crime at the
sentencing phase and cannot enlist the defendant in this process at the expense of the
self-incrimination privilege”) (emphasis added).
                                              3
the sentence.” 526 U.S. at 316–317. Unlike the majority, I do not view the district

court’s statements regarding Mr. Robertson’s silence to be ambiguous. As such, Mr.

Robertson has satisfied the second prong of plain error, and the government has not

argued otherwise.2

         Mr. Robertson has also satisfied the third prong of plain error—that is, whether the

error affects his “substantial rights.” United States v. Hasan, 526 F.3d 653, 664 (10th

Cir. 2008). In this analysis, “we ask only whether there is ‘a reasonable probability that,

but for the error claimed, the result of the proceeding would have been different.’” Id.

(quoting United States v. Andrews, 447 F.3d 806, 811 (10th Cir. 2006)). To satisfy this

burden, Mr. Robertson “must show a reasonable probability sufficient to undermine

confidence in the outcome at [his] sentencing.” United States v. Yurek, 925 F.3d 423,

446 (10th Cir. 2019). “Confidence in the outcome can be undermined even if [Mr.

Robertson’s] showing would not satisfy the preponderance-of-the-evidence standard.”

Id. And “[i]n light of the constitutional nature of the error,” we must conduct this

analysis less rigidly than we would otherwise. United States v. Dazey, 403 F.3d 1147,

1177 (10th Cir. 2005) (applying a less rigid approach to the third prong).

         In this case, the district court’s own statements indicate that it relied on Mr.

Robertson’s silence in crediting the testimony of Officer Arias. See United States v.

Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005) (considering a district court’s

comments at sentencing when determining whether the plain error prejudiced the


         2
             The government only addresses the first prong of plain error. See Aple. Br. at
23–24.
                                                 4
defendant). Taking the requisite less rigid approach appropriate to constitutional error, a

reasonable probability exists that the district court’s factual finding would have been

different had it not relied on Mr. Robertson’s silence.3 And if the district court had

discredited Officer Arias, its starting point of 120 months would have been reduced by

more than one-half (46 to 57 months), or even more if the 37 to 46 month range applied.

“When the court’s starting point is skewed a ‘reasonable probability’ exists that its final

sentence is skewed too.” United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th

Cir. 2014); see Yurek, 925 F.3d at 447 (finding the third prong met where there was a

reasonable probability that the district court would have granted a mitigating-role

adjustment under the correct test, which would have lowered the guideline range). Mr.

Robertson has satisfied the third prong of plain error.

       To satisfy the fourth prong, Mr. Robertson must show that the district court’s error

“seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Bustamante-Conchas, 850 F.3d 1130, 1144 (10th Cir. 2017) (en banc).

Where, as here, “an error affects the calculation of a defendant’s guideline range, the

fourth prong is ordinarily satisfied when the first three prongs are satisfied.” Yurek, 925

F.3d at 447. I conclude that the district court plainly erred by drawing an adverse

inference from Mr. Robertson’s silence at his sentencing hearing. I would reverse and

remand for resentencing.




       3
        “Of course, our standard is couched in terms of probability, and we cannot say
with certainty what the district court will find on remand.” Hasan, 526 F.3d at 665.
                                              5
