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

                            FOR THE TENTH CIRCUIT                           December 4, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,                                 Nos. 18-6223
                                                             and 18-6224
 v.
                                                    (D.C. Nos. 5:18-CR-00097-HE-1
 LERAY EUGENE RICHARDS, a/k/a                          and 5:18-CR-00098-HE-1)
 Le'Ray Eugene Richards, a/k/a Cory                        (W.D. Oklahoma)
 Tremell Brown,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, McHUGH, and CARSON, Circuit Judges.
                  _________________________________


      On July 3, 2018, LeRay Eugene Richards pleaded guilty to three counts of

being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C.

§ 922(g)(1). Mr. Richards’s Presentence Investigation Report (the “PSR”) computed

an advisory sentencing range of 77–96 months based on a total offense level of 21,




      *
         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.
       This order and judgment is not binding precedent, except under the doctrines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.
inclusive of a four-level enhancement for Mr. Richards’s use or possession of a

firearm in connection with another felony offense.

      The district court held a sentencing hearing, at which the government

presented evidence on the factual basis for the four-level increase. After hearing

testimony and other evidence from the parties, the district court found by a

preponderance of the evidence and over Mr. Richards’s objection, that he used or

possessed a firearm in connection with an assault or domestic violence felony

offense. As a result, the district court adopted the PSR and sentenced Mr. Richards to

a guidelines-range, 94-month term of imprisonment.

      On appeal, Mr. Richards asserts that the district court’s factual findings

supporting the four-level enhancement were clearly erroneous. He further argues that

his 94-month, within-guidelines sentence is substantively unreasonable. Exercising

jurisdiction under 28 U.S.C. § 1291, we reject both contentions and affirm his

sentence.

                               I.     BACKGROUND

                                     A. The Indictments

      On April 17, 2018, a grand jury returned two separate indictments1 collectively

charging Mr. Richards with three violations of 18 U.S.C. § 922(g)(1). The

indictments emanated from two separate incidents, which we summarize below.


      1
         The two indictments initiated separate criminal cases, but the Western
District of Oklahoma’s Probation and Pretrial Services office prepared a single PSR
for Mr. Richards, and the district court convened a single sentencing hearing. The
separate appeals of those sentences have been consolidated before this court.
                                           2
   The September 28, 2016, Incident

       On September 28, 2016, Oklahoma City police responded to a report that

Mr. Richards had broken into the home of Kieaira Perry, his ex-girlfriend, and was in

possession of a firearm. Mr. Richards was observed exiting the home as officers

arrived, only to reenter the home for several seconds before reemerging, at which

point he was arrested. During a search of Mr. Richards incident to arrest, police

discovered fifty rounds of ammunition for a .22 long rifle, as well as a taser.

Ms. Perry permitted police to search her home, which led to the discovery of

Mr. Richards’s .22 long rifle caliber pistol under Ms. Perry’s couch. The firearm was

both magazine and chamber loaded, with the safety off and the hammer in the

“cocked” position. Ms. Perry’s PlayStation gaming console was missing and was

later discovered in the car Mr. Richards had driven to Ms. Perry’s home. The police

discovered a little more than half a gram of crack cocaine on Mr. Richards’s person

during a further search upon admission to the detention facility.

   The October 27, 2017, Incident

      On October 27, 2017, police responded to reports of a fight involving a firearm

at an apartment complex in Midwest City, Oklahoma. The complex’s security guards

told police they had asked Mr. Richards for identification as he entered the apartment

complex. Mr. Richards failed to produce identification, and instead tried to remove a



Following the parties’ citation convention, all cites to the sentencing transcript
(“Tr.”) in this order refer to the transcript found in Volume III in the respective
records on appeal.
                                            3
firearm—again magazine and chamber loaded—from his clothing, at which point the

security guards wrestled him to the ground and removed the firearm from his reach.

                              B. The Sentencing Hearing

      Because Mr. Richards raised a timely objection to the factual basis for his

four-level sentencing enhancement, the district court received evidence at the

sentencing hearing on the predicate felony conduct. The government called Sergeant

Jacob Papera, the police officer who interviewed Ms. Perry and her children

immediately after Mr. Richards was arrested on September 28, 2016. Sergeant Papera

testified that Ms. Perry related the following facts pertaining to the sentencing

enhancement: (1) she awoke to a loud banging sound to find her ex-boyfriend,

Mr. Richards, in her home; (2) the two began arguing, and Mr. Richards pointed a

“small, black, semi-automatic handgun” at her (Tr. at 8); and (3) her children

observed Mr. Richards point the firearm at her.

      Sergeant Papera further testified that he interviewed Ms. Perry’s two

children—ages five and seven—one at a time and outside Ms. Perry’s presence. He

testified that the children told him they had been roused by the same loud sounds as

their mother, and when they left their bedroom to investigate, they “saw their mother

arguing with Mr. Richards and him pointing the gun at her.” Tr. at 9.

      In rebuttal, Mr. Richards called Richard Reyna, a criminal investigator

employed by the Federal Public Defender’s Office. Mr. Reyna interviewed Ms. Perry

about the incident at the direction of Mr. Richards’s attorney. Mr. Reyna testified that

Ms. Perry told him, contrary to Sergeant Papera’s testimony, that her children had not

                                           4
witnessed Mr. Richards point the firearm at her. But Mr. Reyna did not testify as to

the source of Ms. Perry’s belief that her children had not witnessed this event.

Mr. Reyna further admitted he did not interview Ms. Perry’s children and therefore

could not speak to what they had seen from their “point of view.” Tr. at 18–19.

Following Mr. Reyna’s testimony, Mr. Richards introduced furniture rental

agreements he executed in March of 2016 that reported his address to be the same as

Ms. Perry’s.

      After the parties concluded their presentation of evidence, the government

urged the district court to find that Mr. Richards had committed burglary, relying on

the fact that Ms. Perry’s PlayStation was found in Mr. Richards’s car. The district

court declined to find that Mr. Richards had burglarized Ms. Perry’s home,

explaining that “[t]he evidence suggests that the defendant had stuff here and

obviously a past relationship with the victim, and so I’m not persuaded that this

constitutes technically a burglary, which, as counsel know, is a fairly specific sort of

breaking-and-entering circumstance.” Tr. at 23.

      The district court instead concluded that “the government . . . established by a

preponderance of the evidence that the gun was used in connection with a—

essentially, an assault or domestic violence situation.” Tr. at 23. Having made that

finding, the district court adopted the PSR’s computation of a total offense level of

21, which, when combined with Mr. Richards’s criminal history category of VI,

produced an advisory Guidelines sentencing range of 77–96 months of imprisonment.



                                            5
After weighing the statutory factors, the district court sentenced Mr. Richards to a

94-month term of imprisonment in each case, to run concurrently.

                                   II.    ANALYSIS

                   A. The § 2K2.1(b)(6)(B) Offense Level Enhancement

      Under § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”), a defendant’s total offense level is increased by four

levels if he “used or possessed any firearm or ammunition in connection with another

felony offense.” Application note 14 to U.S.S.G. § 2K2.1 clarifies that this

sentencing enhancement applies “if the firearm or ammunition facilitated . . . another

felony offense.” U.S.S.G. § 2K2.1, cmt. n.14(A).

      We have explained that § 2K2.1(b)(6)(B) “contains three elements: the

defendant must (1) use or possess a firearm (2) in connection with (3) another felony

offense.” United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir. 2011). As with all

sentencing enhancements, the government bears the burden of proving these elements

by a preponderance of the evidence. See United States v. Orr, 567 F.3d 610, 614

(10th Cir. 2009). Mr. Richards disputes only the third element of the enhancement,

contending the district court erred by finding he committed another felony offense.2



      2
         At sentencing, neither the district court nor the parties pointed to the precise
statute that makes Mr. Richards’s conduct a felony. On appeal, the government
asserts that Mr. Richards violated Oklahoma’s domestic assault with a dangerous
weapon statute, Okla. Stat. tit. 21, § 644(D)(1), with which state authorities charged
him before all state charges were dismissed in favor of the instant federal
indictments. Under that statute:

                                            6
       “We review the factual findings underlying a district court’s sentencing

determination for clear error and review the underlying legal conclusions de novo.”

Marrufo, 661 F.3d at 1206 (quotation marks omitted). Because Mr. Richards

challenges the district court’s factual findings—arguing that “the district court erred

in relying on impeached hearsay testimony”—he can prevail on appeal only if he

establishes that the district court clearly erred. See Opening Br. at 17.

       “Under clear error review, we view the evidence and inferences drawn

therefrom in the light most favorable to the district court’s determination.” United

States v. Porter, 928 F.3d 947, 962 (10th Cir. 2019) (internal quotation marks

omitted). To be clearly erroneous, “a finding must be more than possibly or even

probably wrong; the error must be pellucid to any objective observer.” United States

v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir. 2007) (quotation marks

omitted). “[W]e must be convinced that the sentencing court’s finding is simply not

plausible or permissible in light of the entire record on appeal, remembering that we

are not free to substitute our judgment for that of the district judge.” Porter, 928 F.3d

at 962–63 (quotation marks omitted). “And this deferential standard of review applies


       Any person who, with intent to do bodily harm and without justifiable or
       excusable cause, commits any assault . . . upon . . . a person who formerly
       lived in the same household as the defendant . . . with any sharp or
       dangerous weapon . . . is guilty of domestic assault . . . with a dangerous
       weapon which shall be a felony.
Okla. Stat. tit. 21, § 644(D)(1). Mr. Richards does not dispute that if the district
court permissibly found that he pointed the firearm at Ms. Perry, he is properly
found to have committed this offense for purposes of the enhancement.


                                              7
equally regardless of whether the district court’s factual findings are based on

credibility determinations or on documentary evidence.” United States v. Hargrove,

911 F.3d 1306, 1325 (10th Cir. 2019) (internal quotation marks omitted).

      Mr. Richards’s sole argument on appeal is that the impeachment evidence

provided by Mr. Reyna and through the furniture rental agreements rendered

impermissible the district court’s reliance on Sergeant Papera’s account of hearsay3

statements attributed to Ms. Perry and her children.

1.    Mr. Reyna’s Testimony

      As described above, Mr. Reyna testified that Ms. Perry told him her children

had not observed Mr. Richards point the firearm at her. Because Sergeant Papera

testified that Ms. Perry had related the opposite to him, a factfinder could permissibly

conclude that Mr. Reyna’s testimony (1) calls into question Ms. Perry’s credibility

generally, and/or (2) creates an evidentiary conflict as to whether or not the children

observed the event. The district court ultimately resolved both matters against

Mr. Richards, explaining that “while the evidence as to the hearsay statement of the



      3
         “[H]earsay statements may be considered at sentencing if they bear some
minimal indicia of reliability.” United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir.
2013) (quotation marks omitted). Mr. Richards does not argue that the hearsay
statements supporting the enhancement did not bear minimal indicia of reliability,
and we have affirmed the application of this same sentencing enhancement on
substantially similar hearsay evidence as that supporting Mr. Richards’s. See United
States v. Farnsworth, 92 F.3d 1001, 1010 (10th Cir. 1996) (deeming reliable a
hearsay statement made by victim to police that defendant threatened her with a
firearm where statement was made contemporaneously with the incident and the
defendant had an opportunity to cross-examine the officer who recounted the
hearsay).
                                           8
victim is certainly less than ironclad, it’s not so noncredible as to cause me to

discount it entirely.” Tr. at 24.

       To be sure, Mr. Richards has provided evidence from which the district court

could have discounted Ms. Perry’s statement to Sergeant Papera and generally

questioned her credibility. But nothing in the evidence would require the district

court to do so. As a result, Mr. Richards has failed to establish that the district court’s

decision was clearly erroneous. Absent such a showing, we will not disturb a

factfinder’s evidentiary and credibility determinations. See United States v. A.S., 939

F.3d 1063, 1081 (10th Cir. 2019) (“Where conflicting evidence exists, we do not

question the [factfinder’s] conclusions regarding the credibility of witnesses or the

relative weight of evidence.” (quoting United States v. Cope, 676 F.3d 1219, 1255

(10th Cir. 2012) (alteration in original)); United States v. Sweargin, 935 F.3d 1116,

1123 (10th Cir. 2019) (“We have long held that the credibility of a witness at

sentencing is for the sentencing court, who is the trier of fact, to analyze.” (internal

quotation marks omitted)). Because Mr. Richards has adduced nothing that renders

the district court’s resolution of these matters clearly erroneous, we will not disturb

its findings on appeal.

       As the district court noted, even if Mr. Richards is correct that the children did

not witness Mr. Richards pointing the firearm at Ms. Perry, that fact does not

preclude a finding that the assault occurred. Ms. Perry did not tell Mr. Reyna that

Mr. Richards did not point a gun at her; she stated only that she believed her children

did not observe the incident. Thus, the district court was free to credit Ms. Perry’s

                                            9
unrebutted statement to police that Mr. Richards pointed the weapon at her—

committing a domestic assault.

      Nor did Mr. Reyna’s testimony impeach the credibility of Ms. Perry’s

children, each of whom separately told Sergeant Papera—outside Ms. Perry’s

presence—that they observed Mr. Richards point the firearm at their mother.

Importantly, there was no evidence received about the source of Ms. Perry’s belief

that her children had not witnessed the incident (and therefore nothing to establish a

foundation for her statement to that effect). And Mr. Reyna admitted he did not speak

to the children. Thus, the district court would have acted well within its discretion if

it credited the children’s contemporaneous statements to Sergeant Papera about

matters they personally perceived.

2.    Furniture Rental Agreements Evidence

      Next, Mr. Richards points to the furniture rental agreements that list his

address as Ms. Perry’s in March of 2016. Mr. Richards introduced the agreements to

prove he was still living with Ms. Perry in September of 2016, and thereby rebut the

government’s assertion that he had burglarized her home. Having succeeded in

thwarting a burglary finding below, Mr. Richards argues on appeal that because

Ms. Perry told police he moved out of her home in February of 2016, the March 2016

furniture rental agreements “alone demonstrate[] the unreliable nature of Ms. Perry’s

hearsay statements.” Opening Br. at 16. But the record is devoid of evidence

suggesting, and Mr. Richards never affirmatively states, that he was residing in

Ms. Perry’s home at the time of the September 2016 incident.

                                           10
      Thus, the most damaging inference from the rental agreements is that

Ms. Perry’s recollection about when Mr. Richards moved out of her home was

inaccurate. And even if we assume she intentionally misrepresented that information,

the district court remained free to credit her statement that Mr. Richards pointed the

firearm at her. Stated differently, the impeachment evidence is not so powerful that

the district court’s decision to credit other of Ms. Perry’s statements was clearly

erroneous. At minimum, we cannot say the error would be “pellucid to any objective

observer.” See Cardenas-Alatorre, 485 F.3d at 1119 (quotation marks omitted).

      In sum, Mr. Richards has not demonstrated clear error in the district court’s

factfinding. As a result, his four-level enhancement under § 2K2.1(b)(6)(B) must be

sustained.

                 B. Mr. Richards’s Substantive Reasonableness Challenge

      “In considering a substantive-reasonableness challenge, we presume that the

sentence was reasonable if it fell within the applicable guideline range.” United

States v. Ibanez, 893 F.3d 1218, 1219 (10th Cir. 2018). “This is a deferential standard

that either the defendant or the government may rebut by demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in [18

U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

“[I]mportantly, both the Supreme Court and this court have made clear that it is not

the job of an appellate court to review de novo the balance struck by a district court

among the factors set out in § 3553(a).” United States v. Sells, 541 F.3d 1227, 1239

(10th Cir. 2008); see United States v. Vasquez-Alcarez, 647 F.3d 973, 978 (10th Cir.

                                           11
2011) (“Our role is not to second guess the district court’s treatment of the § 3553(a)

factors.”).

       “We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Durham, 902 F.3d 1180, 1236 (10th Cir. 2018) (internal

quotation marks omitted). We will not find this standard met “unless the sentence is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (internal quotation

marks omitted). Thus, “we will defer to the district court’s judgment so long as it

falls within the realm of . . . rationally available choices.” Id. (alteration in original)

(quotation marks omitted).

       Because Mr. Richards’s 94-month sentence is within his properly computed

Guidelines range of 77–96 months, he bears the burden of rebutting the presumption

that his sentence is substantively reasonable. In attempting to carry that burden,

Mr. Richards submits two arguments.

       First, he suggests that “[t]he district court did not properly allocate weight to

[his] childhood, employment history, mental health issues, self-reporting to address

those issues, support from the community, and role as a father to his children.”

Opening Br. at 21 With the exception of Mr. Richards’s employment history, the

district court explicitly weighed each of these matters. Indeed, in analyzing the

§ 3553(a) factors, the district court considered: (1) Mr. Richards’s “particularly

difficult childhood in terms of the circumstances with both his mother and his father”

(Tr. at 46); (2) Mr. Richards’s “mental health-related issues” (Tr. at 45); (3) that

Mr. Richards self-reported to a mental health facility for treatment without “being

                                             12
forced to do it by the criminal justice system or anybody else” (Tr. at 46); (4) the

letters of support from individuals “from his church and others who’ve talked in

terms of his potential” (Tr. at 45); and (5) that Mr. Richards “has been very much

involved in the lives of his kids”4 (Tr. at 46–47). Because he cannot argue that the

district court failed to consider these matters, Mr. Richards argues the court should

have accorded them greater weight and in turn should have imposed a lesser

sentence. But Mr. Richards has not established that the district court abused its

discretion, and absent that showing, we will “not . . . second guess the district court’s

treatment of the § 3553(a) factors.” Vasquez-Alcarez, 647 F.3d at 978.

      To the extent Mr. Richards assigns error to the district court’s failure to

explicitly rely on his employment history, we reject that argument. A district court

“need not rely on every single factor—no algorithm exists that instructs the district

judge how to combine the factors or what weight to put on each one.” United States

v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018). And at least in the four years

preceding his sentencing (as far back as the PSR goes), Mr. Richards did not

maintain anything approaching steady employment. In no year did he earn more than

$7,280, and he was terminated for cause from three jobs between 2016 and 2018.


      4
         The district court accorded less weight to Mr. Richards’s familial support,
remarking that “that activity [i.e., his involvement in the lives of his children],
laudable as it is, has undoubtedly occurred during much of the same period of time
this course of violent conduct and so on that I’ve talked about has also continued.”
Tr. at 47. The district court continued: “So much as I hate to impose a sentence that
necessarily removes the defendant from their family and from their kids for an
extended period of time, it does seem to me that a meaningful sentence is appropriate
here.” Tr. at 47.
                                           13
Thus, to the extent Mr. Richards asserts he should have received a lesser sentence

because each additional month incarcerated is another month preventing his return to

stable employment, there is scant evidence for that proposition.

       Second, Mr. Richards argues that the district court relied heavily on its finding

that he pointed the firearm at Ms. Perry. Reasserting the arguments he leveled against

that factual finding, Mr. Richards contends that the district court’s reliance on a

clearly erroneous fact in weighing the § 3553(a) factors was an abuse of discretion.

But if we agreed with Mr. Richards that the district court’s factual finding was

unsupported, he would be entitled to a remand for resentencing under a lower

Guidelines range, obviating any consideration of whether his sentence was

substantively reasonable. See United States v. Fennell, 65 F.3d 812, 813–14 (10th

Cir. 1995) (remanding for resentencing after finding sentencing enhancement

factually unsupported). As discussed above, however, the district court did not

clearly err in finding that Mr. Richards used a firearm in connection with a domestic

assault.

       Next, Mr. Richards argues that even if the district court’s factual finding is

sustained, “his sentence is substantively unreasonable because the district court

allocated undue weight upon this individual factor.” Opening Br. at 21 As indicated

above, we do not reweigh the § 3553(a) factors and substitute our judgment for that

of the sentencing court. And although the district court relied on its finding that

Mr. Richards pointed a loaded, cocked gun at Ms. Perry—“[a]nd because of that, it

puts this in a more serious circumstance than would be the case if this was just a

                                           14
matter of somebody passively possessing a weapon” (Tr. at 43)—the court appears to

have been more troubled that this incident represented yet another entry in

Mr. Richards’s “history of violence.” Tr. at 47. For example, the district court

remarked that its review of Mr. Richards’s criminal history revealed that “in a

significant number of [the offenses] the indications are that they involved some kind

of violence in the commission of them.”5 Tr. at 44. The district court further noted

that the October 2017 incident at the apartment complex was “also obviously not a

situation of passive possession” of a firearm. Tr. at 43.

      Far from abusing its discretion, our review of the record suggests the district

court conducted a thorough and thoughtful § 3553(a) analysis. The district court’s

reasoning demonstrates that it carefully reviewed all of the materials submitted in

connection with the relevant factors, and struck a permissible balance in arriving at a

94-month, within-Guidelines sentence.

                                III.   CONCLUSION

      Mr. Richards has not demonstrated any clearly erroneous factual

determinations underlying his sentencing enhancement, and he has not rebutted the

presumption that his within-Guidelines sentence is substantively reasonable. As a

result, the district court is AFFIRMED.

                                            Entered for the Court

                                            Carolyn B. McHugh
                                            Circuit Judge

      5
        Along with several other violent offenses, the PSR reports three prior
incidents of domestic violence.
                                           15
