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

                                    TENTH CIRCUIT                               June 6, 2014

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                            No. 13-7029
                                                               (E. D. Okla.)
 MICHAEL DARRELL MAYBERRY,                           (D.C. No. 6:12-CR-00045-JHP-1)

        Defendant - Appellant.




                                ORDER AND JUDGMENT


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


       Defendant Michael Mayberry challenges his sentencing enhancement under

USSG § 2K2.1(b)(6)(B) for pointing a firearm at a vehicle. He argues that the

enhancement was improper because he acted in self-defense. We affirm his sentence

because the district court did not clearly err when it found that he did not act in self-

defense.

I.     BACKGROUND

       Defendant was convicted by a jury in the United States District Court for the

Eastern District of Oklahoma on one count of being a felon in possession of a firearm.

See 18 U.S.C. § 922(g)(1). The presentence investigation report (PSR) calculated that his
base offense level was 20 and that he should receive a four-level increase under USSG

§ K2.1(b)(6)(B) for using his firearm to shoot at a vehicle. The PSR also calculated his

criminal-history category as III, resulting in a guideline sentencing range of 63 to 78

months’ imprisonment. Defendant’s single objection to the PSR was that he should not

receive the four-level enhancement because he acted in self-defense. The PSR rejected

the objection because (1) “The defendant’s argument that he possessed the firearm in

self-defense did not give rise to a jury instruction for self-defense during trial,” and (2)

“there were no casings, bullet holes or other evidence located in the area of the shooting

that indicates the defendant was shot at first.” R, Vol. 3 at 15.

       Two witnesses at trial had observed the shooting incident. The first to testify was

Joe Pierce, who was outside washing his car when he saw Defendant walking west down

the sidewalk of Elizabeth Avenue in Muskogee. As Defendant approached the

intersection of Elizabeth and 30th Street, Mr. Pierce saw a car slowly moving south on

30th Street toward the intersection. Although Mr. Pierce thought at first that it might hit

Defendant as he crossed the intersection, it safely passed him. After the car was “a little

ways from [Defendant],” Mr. Pierce heard someone in the car say, “[T]here he go right

there,” followed by gunfire. Id., Vol. 2 at 70 (internal quotation marks omitted). When

he heard the gunfire he looked at Defendant and saw “him come out with a gun from

behind his back and turn shooting at the car and I heard the car shooting at him.” Id. at

71. He estimated that the car was 30 to 40 feet past Defendant when he saw Defendant

shooting. Defendant was “crouched down a little bit right there in the middle of the
                                               2
street” and shooting behind his back. Id. at 72. As the car drove past Defendant it

initially kept its slow pace, but it sped up when it got further away. Mr. Pierce heard at

least six shots and testified that “I guess [Defendant] kept shooting until the vehicle was

out of sight and then after that he headed out through some houses.” Id. at 73. When

asked whether he knew whether Defendant or someone in the vehicle shot first, he said,

“That’s what I—I don’t know who shot first,” id. at 75; and when asked whether he had

“hear[d] shooting before this individual pulled the gun out of the back of their pants

there,” he replied, “I—I’m not sure. I think I heard gunfire—I don’t know if he was

retaliating or firing.” Id. When questioned about his grand-jury testimony that

Defendant had retaliated, he replied:

       Yeah, like I said, I don’t know who fired first, but like I said, it could have
       been him retaliating or it could have been them. I don’t know who fired
       first. All I know is I heard the gunshots.

Id. at 81.

       The other witness was Willie Hopkins, a plumber who was working nearby. After

hearing gun shots, he “[saw] a young man run out in the street and then . . . heard three

more shots.” Id. at 102. Defendant was the only one he saw shooting. When asked for

more detail, he testified that Defendant “ran in the middle of 30th Street and turned

around and started shooting.” Id. at 103. After the shooting incident, Defendant ran

away. Shortly thereafter, he came to the house where Mr. Hopkins was working and

said, “They are shooting at me,” to which Mr. Hopkins replied, “Man, you was the only

one I seen shooting.” Id. at 102 (internal quotation marks omitted).
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         To support its account of the shooting, the government introduced shell-casing

evidence at trial. A police officer explained that he had found three .40 caliber shell

casings in the general area of the intersection where witnesses had observed the shooting.

The shell casings were spread out over about 30 or 40 feet in the intersection or just north

of it. Two were Winchester casings and one was a Federal casing. The officer looked for

casings for a block south of the intersection but found none. Defendant’s gun, which was

recovered from a house in the neighborhood, was a .40 caliber Smith & Wesson pistol; its

magazine included rounds from different manufacturers.

         At sentencing, the district court said:

         Based on the evidence and testimony presented at jury trial, the Court finds
         by a preponderance of the evidence that a claim of self defense and [1]
         defendant’s discharge of a firearm is not supported by the facts in this case.
         Therefore, the Court finds that the defendant appropriately received a four
         level enhancement for possession of a firearm in connection with another
         felony offense pursuant to Section 2K2.1(b)(6). The defendant’s objection
         is overruled.

Id. at 22–23. Defendant renewed his objection that the four-level enhancement “was not

procedurally sound or substantively sound by virtue of the lack of facts and the lack of

recognition of the self defense argument that we’ve made.” Id. at 26. The court

sentenced Defendant to 70 months’ imprisonment, the middle of the guidelines range.

II.      DISCUSSION

         “At sentencing, the government must prove facts supporting a sentencing

enhancement by a preponderance of the evidence.” United States v. Garcia, 635 F.3d

1
    Perhaps the word “and” was supposed to be “in.”
                                                   4
472, 478 (10th Cir. 2011). We “examine the court’s interpretation and application of the

sentencing guidelines de novo” and “uphold [its] factual findings unless they are clearly

erroneous.” United States v. Willie, 253 F.3d 1215, 1218 (10th Cir. 2001). “We view the

evidence underlying a district court’s sentence, and inferences drawn therefrom, in the

light most favorable to the district court’s determination.” Id. (brackets, ellipsis, and

internal quotation marks omitted). There is clear error only if the district court’s “finding

is simply not plausible or permissible in light of the entire record on appeal.” Garcia,

635 F.3d at 478 (internal quotation marks omitted).

       Section 2K2.1(b)(6)(B) directs that the defendant’s offense level should be

increased by four levels if the defendant “[u]sed or possessed any firearm or ammunition

in connection with another felony offense.” The enhancement applies “if the firearm or

ammunition facilitated, or had the potential of facilitating, another felony offense.” Id.,

cmt. n.14(A). “Another felony offense” means “any Federal, state or local offense [other

than some inapplicable exceptions] punishable by imprisonment for a term exceeding one

year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id.,

cmt. n.14(C) (internal quotation marks omitted).

       Defendant received a four-level enhancement under § 2K2.1(b)(6)(B) because he

“used the firearm he possessed to shoot at a vehicle, which was charged as Feloniously

Pointing a Firearm in Muskogee County, Oklahoma, District Court.” R., Vol. 3 at 5.

(The disposition of the state charge is not disclosed in the record.) Defendant concedes

that “the offense of pointing a firearm meets the definition of ‘another felony offense.’”
                                              5
Aplt. Br. at 8 n.1. He argues, however, that he did not commit that offense because he

acted in self-defense. 2 He points out, and the government acknowledges, that under

Oklahoma law the offense of pointing a firearm “does not include pointing in defense of

any person, one’s home or property.” Id. at 9 (internal quotation marks omitted); see

Okla. Stat. tit. 21, § 1289.16 (2011).

       Defendant and the government agree that an Oklahoma jury instruction accurately

defines self-defense:

              A person is justified in using deadly force in self-defense if that
       person reasonably believed that use of deadly force was necessary to
       protect himself/herself from imminent danger of death or great bodily
       harm. Self-defense is a defense although the danger to life or personal
       security may not have been real, if a reasonable person, in the
       circumstances and from the viewpoint of the defendant, would reasonably
       have believed that he/she was in imminent danger of death or great bodily
       harm.

OUJI-CR § 8-46 (1991). Self-defense is generally not available to the aggressor or a

person who entered into mutual combat. See id. CR § 8-50; Jones v. State, 201 P.3d 869,

886 (Okla. Crim. App. 2009). And “if a party who was the attacker withdraws and the

other party pursues more than is necessary to ensure her safety, the pursuing party can

take on the status of attacker, and lose the right of self-defense.” Allen v. State, 871 P.2d

79, 92 (Okla. Crim. App. 1994). Under Oklahoma law it is the government’s burden to



2
  Defendant also argued in his briefs that the district court made a factual finding that he
did not fire his gun. But at oral argument Defendant’s counsel conceded that his client
fired the gun, suggesting that the district court misspoke. It is obvious to us that the court
misspoke or was misheard by the court reporter.
                                              6
show that the defendant did not act in self-defense. See Perez v. State, 798 P.2d 639, 641

(Okla. Crim. App. 1990).

       The evidence at trial is uncertain regarding who was the initial aggressor.

Certainly, a reasonable factfinder could have inferred that the car’s occupants fired first;

but Mr. Hopkins testified that Defendant was the only one he saw shooting and

Mr. Pierce testified that he did not know who shot first. And the shell casings support the

view that no one in the car shot at Defendant: All the shell casings were compatible with

Defendant’s gun and none were found in the area from which the car’s occupants would

have been shooting. We cannot say that it would have been clear error for the district

court to find that Defendant’s first shots were not in self-defense. Moreover, Mr. Pierce

testified that as the vehicle drove away, going south on 30th Street, Defendant “kept

shooting until the vehicle was out of sight.” R., Vol. 2 at 73. There was no testimony

that any shots came from the vehicle during its retreat. The district court could have

reasonably found that even if Defendant initially acted in self-defense, he became the

aggressor by continuing to fire at the car after it had retreated and stopped returning fire.

See Smith v. State, 197 P. 514, 516 (Okla. Crim. App. 1919) (defendant lost the right of

self-defense if he pursued the aggressor and stabbed him with a knife after the aggressor

withdrew).




                                              7
III.   CONCLUSION

       We AFFIRM the district court’s sentence.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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