                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     April 18, 2008
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 06-2258
 v.                                              (D.C. No. 04-CR-02497 JB)
                                                    (D. of New Mexico)
 RICHARD RAY ASHLEY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.


      Defendant-Appellant Richard Ashley was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced him to 51 months of imprisonment, the bottom of the Guidelines

recommended range, and 36 months of supervised release. Mr. Ashley now

challenges the district court’s rulings pertaining to the disclosure and cross-

examination of three witnesses and the length of his sentence. Our jurisdiction

arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.


      *
              This order and judgment is not binding precedent, except under the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.
                               I. BACKGROUND

      We report the facts in the light most favorable to the verdict. Mr. Ashley

was indicted by a grand jury on the charge of being a felon in possession of a

firearm. The charge arose from a trip Mr. Ashley took to Pancho Villa State Park

near Columbus, New Mexico, during which Mr. Ashley showed his .22 pistol to a

park ranger, Ranger Martinez, and a park volunteer. Also during that trip, a paid

informant saw Mr. Ashley wearing a fanny pack that appeared to contain a pistol.

The informant, who had gone to the park looking for Mr. Ashley because he had

received information about him, told an Immigration and Customs Enforcement

agent, Agent Spiess, that he had seen Mr. Ashley and believed he was carrying a

firearm. Agent Spiess then went to Mr. Ashley’s campsite, where he searched

Mr. Ashley’s possessions and found an unloaded .22 pistol in a dry storage box.

Mr. Ashley told Agent Spiess that his son had left the pistol in the camping gear. 1

      Mr. Ashley was tried on the charge of being a felon in possession of a

firearm. The government’s main witness was Agent Spiess, who testified about

the circumstances under which he found the pistol. The jury was unable to reach

a unanimous verdict and a mistrial was declared.

      1
             The reported account of what Mr. Ashley told Agent Spiess is based
upon the testimony of the latter. See Aplee. Supp. App., Vol. I, at 62 (testifying
that Mr. Ashley said “[t]hat his son had left it in the camping gear.”). Mr. Ashley
disputed this account. He testified that he learned for the first time that the
firearm was in the camping gear the evening before his encounter with Agent
Spiess and the weapon had been placed there by a friend who was holding it for
Mr. Ashley’s son. See id. at 219-20, 231, 238.

                                         -2-
      Mr. Ashley was retried on the charge. Six days before trial, the

government provided Mr. Ashley with Ranger Martinez’s name and the names of

the paid informant and park volunteer, and indicated that it planned to call all

three individuals as witnesses. The government also provided Mr. Ashley with

Ranger Martinez’s affidavit, which summarized his anticipated testimony.

      Mr. Ashley objected to the government’s use of these witnesses.

Principally, he argued that the government failed to disclose the witnesses in a

timely manner, thus preventing Mr. Ashley from effectively preparing to explore

credibility issues raised by the government’s decision not to call the witnesses in

the initial trial. Mr. Ashley sought a dismissal of the indictment. In the event the

court was opposed to such relief, Mr. Ashley alternatively argued that the court

should permit him to cross-examine the witnesses regarding their absence at the

initial trial. At no point did Mr. Ashley seek a continuance to address his

concerns related to the government’s allegedly untimely witness disclosure.

      The district court expressed its inclination to deny the motion to dismiss

and ultimately did so. It permitted the government to call the witnesses and

allowed the defense to cross-examine them regarding their absence at the initial

trial, so long as the defense did not mention, or seek to elicit testimony

concerning, the outcome of the initial trial.

      The jury returned a guilty verdict, and Mr. Ashley was sentenced to 51

months’ incarceration. The applicable United States Sentencing Guidelines

                                         -3-
Range was 51 to 63 months. Mr. Ashley timely appealed from the district court’s

judgment and sentence.

                                 II. DISCUSSION

                             A. Disclosure of Witnesses

      Mr. Ashley claims that the failure to timely disclose the identity of the

three witnesses before the retrial violated his due process rights. In a motion to

dismiss raised before the district court and in his briefing before this court, he has

framed the issue as the suppression of material, exculpatory evidence, arguing

that the government violated Brady v. Maryland, 373 U.S. 83, 87 (1963), and

Giglio v. United States, 405 U.S. 150, 154-55 (1972).

      “We review questions regarding the disclosure of exculpatory or

impeachment evidence de novo.” United States v. Gonzalez-Montoya, 161 F.3d

643, 649 (10th Cir. 1998).    To establish a Brady violation, Mr. Ashley must

demonstrate that (1) the prosecution suppressed evidence; (2) the evidence was

favorable to the defendant; and (3) the evidence was material. Id.; see also

United States v. Wright, 506 F.3d 1293, 1301 (10th Cir. 2007). After thorough

review of the record, we reject Mr. Ashley’s disclosure challenge.

      As the government correctly noted, his challenge fails at the “most

fundamental level,” Aplee. Br. at 11—the identification of evidence favorable to

the defense. Mr. Ashley has not advanced a persuasive theory that would permit

us to characterize information related to the three witnesses as exculpatory. The

                                         -4-
witnesses possessed testimony that was incriminating to Mr. Ashley, not

exculpatory. Indeed, Mr. Ashley candidly acknowledged as much: “It is not Mr.

Ashley’s complaint that the evidence provided by these witnesses was in itself

favorable to his defense. It clearly was not.” Aplt. Op. Br. at 18.

      Mr. Ashley’s idea appears to be that the fact that witnesses the government

put forward as having relevant testimony for the retrial were not called to testify

in the initial trial implicates Brady because it raises the possibility of recent

fabrication or otherwise calls the witnesses’ credibility into question. See Aplt.

Op. Br. at 18 (citing Brady, stating, “It is his [Mr. Ashley’s] complaint that

disclosure of the evidence in a timely fashion would have, as a matter of due

process, allowed him to effectively attack the credibility of the evidence”

(emphasis added)); Aplee. Supp. App., Vol. I, at 21, 153-54 (e.g., informing the

district court, “Basically, . . . it’s our position that we should have been able to

explore the possibility of the issue of recent fabrication.” (emphasis added)).

      However, logically, there is nothing inherently exculpatory about the fact

that the government did not call the witnesses in the initial trial, but elected to do

so in the retrial. Cf. United States v. Watts, 95 F.3d 617 (7th Cir. 1996)

(declining to infer from the prosecution’s decision not to call a witness to testify

that “his testimony would have been adverse to the prosecution”). 2 In particular,

      2
              In Watts, the government did not call a witness named “Walls” to
testify at the defendant’s trial for possession of crack cocaine with intent to
                                                                           (continued...)

                                           -5-
this sequence of events does not naturally suggest that the information the

witnesses had to offer “changed” between the two trials.

      Indeed, as the government noted, the answer could easily lie in the fact that

a different prosecutor handled the retrial and exercised independent forensic

judgment in selecting witnesses. See Aplee. Br. at 12 n.8 (“The change in

prosecutors is reflected in the differing presentations of the evidence.”); Aplee.

Supp. App., Vol. I, at 156 (“The fact that the United States did not call them is

indicative, simply, of the fact that the previous prosecutor on this case must have

believed there was sufficient evidence on [sic] the witnesses that were called.”).

We are hard-pressed, moreover, to see how the credibility of the witnesses could

be called into question by the fact that another person—the

government—changed its mind and decided to avail itself of their testimony in the


      2
          (...continued)
distribute. 95 F.3d at 618. He was one of only two people “who might have
seen” the defendant possess the drugs. Id. Nevertheless, in assessing defendant’s
challenge to the sufficiency of the evidence, the Seventh Circuit declined to infer
from the government’s failure to call Walls to testify that his evidence was
adverse to it (and, thus, presumably favorable to the defense). Id. at 619.
Specifically, the court noted: “The government may have had strategic reasons for
not calling Walls, or it simply may have decided that it did not need his
testimony.” Id. Similarly, we are unwilling to infer the existence of material
impeachment evidence within the meaning of Brady and Giglio by engaging in a
high degree of speculation about the government’s litigation decision-making. In
particular, we will not speculate that at the time of the initial trial the government
decided not to call the three individuals at issue as witnesses because their
testimony was unfavorable to its case (and, thus, presumably favorable to the
defense) and then elected to call them for the retrial because their testimony
“changed” for the better.

                                          -6-
retrial. The witnesses would not have had any role in this government decision,

and Mr. Ashley makes no assertions to the contrary. Consequently, we are

puzzled as to how the fact of their appearance as witnesses could cast any doubt

on their veracity.

      “[O]n this record we are left only with speculation and conjecture,” United

States v. Nevels, 490 F.3d 800, 804 (10th Cir. 2007), concerning the alleged

exculpatory nature of the evidence. That is not enough. See United States v.

Williams-Davis, 90 F.3d 490, 514 (D.C. Cir. 1996) (joining the Third and Ninth

Circuits in declining to infer the existence of Brady material based upon

speculation alone, and therefore rejecting defendant’s Brady claim because

“[e]xcept for bare speculation, . . . [defendant] has nothing to suggest the

existence of favorable materials”); United States v. Santiago, 993 F.2d 504, 506

(5th Cir. 1993) (holding that defendant “failed to demonstrate a Brady violation”

in part because he “ha[d] not established the exculpatory nature of the allegedly

suppressed evidence—his allegations are mere speculation and conjecture”),

overruled on other grounds by United States v. Calverley, 37 F.3d 160, 164 &

n.27 (5th Cir. 1994) (en banc), abrogated on other grounds by Johnson v. United

States, 520 U.S. 461, 467 (1997).

      Mr. Ashley has suggested that his real concern was the timing of the

disclosure—which allegedly prevented him from effectively responding to the

new witnesses and their testimony. For example, when asked by the district court

                                          -7-
“[w]hat . . . about [the character of] that testimony” he thought was

“exculpatory,” Mr. Ashley responded:

                   Judge, I suppose it is . . . the fact that the Government
             had this evidence available at a previous trial and did not call
             these witnesses—it’s the issue of— . . . the fact that the
             defendant has not had an opportunity to appropriately and
             completely evaluate why the Government would not call these
             witnesses at a prior trial in that regard. . . .

                    Basically, . . . it’s our position that we should have been
             able to explore the possibility of the issue of recent
             fabrication. And the fact that we were not able to know of this
             information until less than a week before trial put Mr. Ashley
             in a position where he was not able to adequately prepare his
             defense and was, as a result of that, denied the due process of
             law that he is entitled to receive.

Aplee. Supp. App., Vol. I, at 153-54 (emphasis added); see Aplt. Op. Br. at 13

(contending that Mr. Ashley was “denied the opportunity to effectively impeach

critical government witnesses by the late disclosure of the nature of their

testimony”). 3

      3
             In oral argument before us, Mr. Ashley could be understood to have
advanced a somewhat different concern related to the timing of disclosure. Mr.
Ashley argued that the government’s allegedly belated disclosure created a
situation where he “w[as] not able to address that [the prospective witnesses’
testimony] adequately to the court.” Oral Arg. at 15:24 (emphasis added). Mr.
Ashley appeared to be arguing that the government’s alleged tardiness in
disclosing the witnesses impaired his ability to give the district court a proper
foundation for evaluating the issue and presumably granting him relief against the
government’s use of the witnesses. Forced to operate without adequate
information, reasons Mr. Ashley, the district court erred. At no point, however,
did Mr. Ashley seek a continuance to permit him to mount a more effective
challenge to admission of the witness testimony. Nor has he offered any clues to
us regarding what he would have done with the additional time to better prepare
                                                                          (continued...)

                                          -8-
      However, Mr. Ashley’s “plea for earlier disclosure fails for one very simple

reason: no rule of law requires it.” Watts, 95 F.3d at 619. “There is no general

constitutional right to discovery in a criminal case” and Brady “did not create

one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). In particular, the Due

Process Clause does not require the government to disclose before trial the names

of its witnesses, just so the defense can have sufficient time to investigate their

backgrounds for impeachment information. Id. (rejecting the notion that the Due

Process Clause required the government to disclose the name of an adverse

witness so the defense can “do a background check” on him “for purposes of

cross-examination”); see Nevels, 490 F.3d at 803 (“The Supreme Court has

established that no constitutional right to pretrial discovery of witnesses exists in

non-capital cases.”).

      Lastly, even if Mr. Ashley had some legal basis to object to the

government’s allegedly untimely disclosure of the three witnesses, on this record

we could not conclude that Mr. Ashley was prejudiced in his trial preparation by

the alleged delay, much less denied a fair trial. See United States v. Scarborough,

128 F.3d 1373, 1376 (10th Cir. 1997) (reasoning where “the [Brady] evidence

was eventually disclosed to the defense, albeit towards the end of trial,” the court

focuses not on “the fact that the material, if disclosed earlier, may have affected

      3
          (...continued)
the record for a ruling by the district court. Insofar as Mr. Ashley’s argument
encompasses this judicial-relief contention, we conclude that it is untenable.

                                          -9-
the defense strategy” but rather “on whether earlier disclosure would have created

a reasonable doubt of guilt that did not otherwise exist” (internal quotation marks

omitted)). Compare United States v. Collins, 415 F.3d 304, 310 (4th Cir. 2005)

(rejecting Brady argument where defendant moved to dismiss charges based on

government’s alleged untimely disclosure, “only a few days prior to

commencement of the trial,” of the identities of nontestifying confidential

informants, noting, “There is nothing to support Collins’ assertion that these

informants would have produced exculpatory information”), and Gonzalez-

Montoya, 161 F.3d at 650 (concluding in Brady context that “no prejudice

resulted” from government’s untimely disclosure during the course of trial of

material impeachment evidence, where court afforded defendant opportunity to

review evidence and he declined to use the evidence in interviewing or cross-

examining the witness), with United States v. Red Elk, 185 F. App’x 716, 723

(10th Cir. 2006) (unpublished) (reviewing exclusion of expert witness for alleged

untimely disclosure and noting “[t]o support a finding of prejudice, the court must

determine that the delay impacted the defendant’s ability to prepare or present its

case” (internal quotation marks and citation omitted)).

      As to the three witnesses, Mr. Ashley has failed to indicate “how he might

have better cross-examined them or what he could have done differently at trial if

he had” known the witnesses’ identities “for a longer period of time before trial.”

United States v. Cleaver, 163 F. App’x 622, 627 (10th Cir. 2005) (unpublished),

                                        -10-
cert. denied, 547 U.S. 1103 (2006). Although the government was not obliged to

do so under any discovery rule (see, e.g., 18 U.S.C. § 3500), it had provided Mr.

Ashley with Ranger Martinez’s affidavit before trial, so Mr. Ashley would have

confronted minimal surprises (if any) concerning the substance of this significant

witness’s testimony and would have been armed to conduct a thorough

impeachment of him. And, importantly, Mr. Ashley never sought a continuance

before trial. See Nevels, 490 F.3d at 804 (noting that defendant “never asked for

a continuance of the trial” as a factor bearing on its conclusion that defendant

“failed to establish prejudice” from allegedly untimely disclosure of witness’s

identity). Cf. Collins, 415 F.3d at 311 (rejecting Brady challenge brought

through motion to dismiss, noting that “when his motion was denied, he did not

seek a continuance”); Watts, 95 F.3d at 619 (upholding district court’s denial of

defense motion in limine, aimed at excluding government witness disclosed three

days before trial; observing that “[t]here is no indication in the record” that the

defendant “requested a continuance after hearing about” the witness’s testimony).

      Therefore, for the foregoing reasons, we reject Mr. Ashley’s constitutional

challenge under Brady and Giglio to the propriety of the government’s disclosure

of witnesses.




                                          -11-
                        B. Limitation on Cross-Examination

      Mr. Ashley argues that the district court impermissibly limited the scope of

the cross-examination of Ranger Martinez, the park volunteer, and the paid

informant. Specifically, Mr. Ashley contends that he was not allowed to cross-

examine these witnesses about whether they were called to testify in the previous

trial. Mr. Ashley also argues that he should have been allowed to ask if the

witnesses were known by the government before the retrial and whether they were

aware of the outcome of the initial trial (i.e., the mistrial). We conclude that Mr.

Ashley cannot prevail on these contentions.

      Initially, to the extent that Mr. Ashley argues that he should have been able

to ask questions regarding the outcome of the previous trial, he has waived that

argument. In addressing the issue before the district court, Mr. Ashley agreed

with the district court that the outcome of the previous trial should not be discussed,

stating, “And I agree, I don’t think that it’s appropriate, nor will we suggest how that

other trial ended.” Aplee. Supp. App., Vol. I, at 22.

      This is not a situation where a challenge is forfeited because it was not timely

preserved. See United States v. Teague, 443 F.3d 1310, 1314 (10th Cir.), cert.

denied, 127 S. Ct. 247 (2006). Rather, this is a case where there was an “intentional

relinquishment or abandonment of a known right,” which amounts to a waiver.

United States v. Olano, 507 U.S. 725, 733 (1993) (citation omitted). Although Mr.

Ashley argues that his statement before the district court merely expressed his


                                          -12-
understanding of the district court’s decision, Oral Arg. at 9:08-9:50, a careful

reading of the record contradicts that view. The district court had not made its

decision concerning the permissible scope of cross-examination and was

specifically inquiring as to whether Mr. Ashley would find acceptable a procedure

in which he could cross-examine about the prior trial, but not mention, or ask

about, the trial’s outcome. Mr. Ashley orally assented to that procedure. We

conclude that Mr. Ashley’s response waives the issue of asking about the

outcome, and we will not review his challenge on appeal.

      Insofar as Mr. Ashley objects to a purported broader cross-examination

restriction by the district court—essentially one relating to the fact of a prior trial

and the circumstances surrounding the government’s failure to call the three

witnesses at that trial, we conclude that Mr. Ashley’s challenge is misguided and

reject it. Specifically, the challenge has no foundation in the record. The district

court imposed no restriction relating to such cross-examination. Indeed, it

specifically noted that Mr. Ashley could inquire into such matters, and Mr.

Ashley orally acknowledged the advisement. 4 Importantly, Mr. Ashley actually

      4
            The district court had the following exchange with Mr. Ashley’s
defense counsel:

      [THE COURT]          But what about the solution that we don’t tell
                           them [the jurors] what the prior verdict was, but if
                           you think it would be helpful to get into the fact
                           that there was a prior—either you can call it a
                           hearing, or whatever you want to, but if you
                                                                          (continued...)

                                         -13-
did cross-examine two of the three witnesses on the topics. See Aplee. Supp.

App., Vol. I, at 40-41, 149. Based on our review of the record, then, we reject

Mr. Ashley’s claim that cross-examination was impermissibly limited.

                           C. Reasonableness of Sentence

      Finally, Mr. Ashley argues that his sentence is disproportionate to the crime

of possessing a firearm because it was inadvertent possession on a camping trip and

not the kind of violent use that Congress sought to punish.

      We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see United States v. Smart, 518 F.3d

800, 805 (10th Cir. 2008) (noting that it is now “well settled that we review a

district court’s sentencing decisions solely for abuse of discretion”).

Reasonableness “has both procedural and substantive components.” United States

v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007); see Gall, 128 S. Ct. at 597

(noting that a reviewing court “must first ensure that the district court committed




      4
          (...continued)
                           decide to call it a trial, then that’s fine, then you
                           can ask questions as to why that testimony didn’t
                           come out. Is that acceptable?


      [DEFENSE]            Yes, Your Honor. . . .

Aplee. Supp. App., Vol. I, at 21.

                                          -14-
no significant procedural error” and then should “consider the substantive

reasonableness of the sentence”).

      We review a sentence’s length for substantive reasonableness. See United

States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007) (“In evaluating the

substantive reasonableness of a sentence, we ask whether the length of the

sentence is reasonable considering the statutory factors delineated in 18 U.S.C. §

3553(a).”), petition for cert. filed, (U.S. Mar. 14, 2008) (No. 07-9943). “[W]e

accord a properly calculated Guidelines sentence a presumption of substantive

reasonableness.” United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir.

2007); see Gall, 128 S. Ct. at 597 (“If the sentence is within the Guidelines range,

the appellate court may, but is not required to, apply a presumption of

reasonableness.”).

       Mr. Ashley argues that the firearm was found with camping supplies when

he was on a camping trip and that type of inadvertent possession does not justify

the sentence imposed. More specifically, Mr. Ashley contends that his offense

conduct is “vastly different from the type of conduct contemplated by Congress in

enacting legislation to prevent violent acts by felons owning handguns.” Aplt.

Op. Br. at 22. The district court also received numerous letters from Mr.

Ashley’s family and friends describing his many positive characteristics.

Although these facts might have led a district court to consider granting a

variance, a district court is not required to reduce a sentence simply because it could

                                         -15-
have justified such a reduction. United States v. Mares, 441 F.3d 1152, 1161 (10th

Cir. 2006), cert. denied, 127 S. Ct. 3048 (2007) .

      There are a number of facts that support the reasonableness of Mr. Ashley’s

sentence under 18 U.S.C. § 3553(a). Mr. Ashley has a lengthy criminal history

spanning more than three decades. He was convicted of crimes on seven separate

occasions, many involving firearms and some involving violence. Specifically,

four of his previous convictions involved firearms, and two of those four were for

essentially the same offense at issue here. One of his convictions was for felony

burglary of a dwelling, an offense which ordinarily is deemed to be a “crime of

violence” under federal statutes and the Guidelines. 5 And another offense

involved a misdemeanor battery of his ex-wife, during which Mr. Ashley

allegedly kicked her and threatened to do further damage to her; specifically, to

“pound” her “until this thing is over.” Aplee. Supp. App., Vol. II, ¶ 30 at 10

(Presentence Report).

      The district court could have reasonably determined under § 3553(a) that in

light of Mr. Ashley’s criminal history and characteristics, the 51-month sentence

was necessary (among other things) “to protect the public from further crimes” of


      5
             See United States Sentencing Guidelines Manual § 4B1.2 (defining
“crime of violence” to include “burglary of a dwelling”). Compare 18 U.S.C. §
16(b) (defining “crime of violence”), with Leocal v. Ashcroft, 543 U.S. 1, 10
(2004) (noting that §16(b)’s definition covers burglary “because burglary, by its
nature, involves a substantial risk that the burglar will use force against a victim
in completing the crime”).

                                          -16-
Mr. Ashley, “to promote respect for the law,” and “to afford adequate deterrence

to criminal conduct.” 18 U.S.C. §§ 3553(a)(1), (a)(2)(A)-(C). Even if we were to

accept Mr. Ashley’s characterization of Congress’s purpose in enacting the felon-

in-possession statute, the district court could have reasonably concluded that Mr.

Ashley is exactly the kind of violence-prone felon that Congress wanted to keep

away from firearms. 6 Thus, we have no difficulty concluding that Mr. Ashley’s

sentence is substantively reasonable.



                               III. CONCLUSION

      We conclude that the district court did not err in rejecting Mr. Ashley’s

Brady challenge to the government’s disclosure of three new witnesses for his

retrial and in imposing limitations on the scope of cross-examination of those

witnesses. Furthermore, we conclude that Mr. Ashley’s sentence is substantively

reasonable. Accordingly, the district court’s judgment and sentence is

AFFIRMED.

                                        Entered for the Court



                                        Jerome A. Holmes
                                        Circuit Judge

      6
             We note, moreover, the district court found that Mr. Ashley had
willfully obstructed justice by offering perjurious testimony at trial. This is
another factor that it could have reasonably found militated in favor of a within-
Guidelines sentence of 51 months.

                                         -17-
