                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-7076
          v.                                           (E.D. Oklahoma)
 LON PERRY ED GE,                               (D.C. No. CR-05-86-01-RAW )

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, L UC ER O, and HA RTZ, Circuit Judges.


      Lon Perry Edge was indicted in the United States District Court for the

Eastern District of Oklahoma on two counts of being a prohibited person in

possession of a firearm, see 18 U.S.C. § 922(g)(8), one count of being a

prohibited person in possession of ammunition, see id., and one count of

possession of marijuana, see 21 U.S.C. § 844. The indictment alleged that he was

a prohibited person because he was subject to a domestic-relations protective

order. After he pleaded not guilty, a jury convicted him on all but the drug



      *
        This order and judgment is not binding precedent except under the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.
charge. At sentencing the district court credited testimony from M r. Edge’s

estranged wife that he had pointed a firearm at her, and the court accordingly

enhanced his offense level by four under the United States Sentencing Guidelines

(U SSG). See USSG § 2K2.1(b)(5) 1 (“If the defendant used or possessed any

firearm or ammunition in connection with another felony offense . . . increase by

4 levels.”). He was sentenced to 44 months’ imprisonment. On appeal M r. Edge

contends that (1) there was insufficient evidence to support his conviction

because the protective order was entered without notice or opportunity to

participate; (2) the sentencing judge should not have considered conduct

underlying charges on which he had been acquitted in state court; and (3) the

evidence presented at sentencing did not support his enhancement. W e have

jurisdiction under 28 U.S.C § 1291 and affirm.

I.    B AC KGR OU N D

      On October 15, 2003, shortly after Vicki Edge Dixon filed a petition for

dissolution of her marriage to M r. Edge, Oklahoma D istrict Judge Don Ed Payne

issued at M s. Dixon’s request a temporary protective order prohibiting M r. Edge

from contacting her or going near her or her residence. The order set a hearing

for October 28 to consider a permanent protective order. On November 6 Judge

Payne issued a permanent protective order.



      1
       The 2006 amendments to the Sentencing Guidelines redesignated Section
2K2.1(b)(5) as Section 2K2.1(b)(6).

                                        -2-
      Twenty months later, on July 5, 2005, M s. Dixon was driving to a store on

a dirt road that took her past Bill Hughes’s residence, about a m ile and a half

from her home. She knew that M r. Edge had driven on the road earlier in the day

and that M r. Edge often visited M r. Hughes. As she drove by M r. Hughes’s house

at between 35 and 40 miles per hour, M r. Edge approached her truck on the

driver’s side and pointed a gun at her. The gun appeared to her to be a black

handgun with a clip in it.

      W hen she saw the gun, she ducked toward the seat of the truck and

continued driving, accelerating. After driving half a mile she stopped, turned

around, and drove back to her home, again passing M r. Hughes’s home. M r. Edge

did not point the gun at her on this occasion. She explained that she returned

home, despite having to pass M r. Hughes’s house once more, because she wanted

to get to the nearest phone to call the police and report M r. Edge’s actions.

      Law-enforcement officers arrived between 35 and 45 minutes after her

phone call, took her statement, and proceeded to M r. Hughes’s house to confront

M r. Edge. On the way the officers observed M r. Edge driving toward them in the

middle of the road. They pulled to the shoulder to avoid a collision, turned

around, and conducted a traffic stop. During the stop the officers observed in the

vehicle in plain view an open container of beer, a black handgun, a shotgun, and

amm unition. After the officers determined that M r. Edge was subject to a

protective order, they arrested him.

                                         -3-
      On July 7, 2005, M r. Edge was charged in state court on five counts: (1)

feloniously pointing a firearm; (2) violating a protective order; (3) transporting an

open container of alcohol; (4) driving left of center; and (5) having defective

automobile equipment. He was acquitted on the first two charges, and the

remaining three were later dismissed by the state. After the state-court acquittal

M r. Edge w as indicted in federal court and tried on January 3 and 4, 2006. He

was convicted and sentenced to 44 months’ imprisonment.

II.   ANALYSIS

      A.     Protective Order

      M r. Edge challenges his conviction by contesting his status as a “prohibited

person” under 18 U .S.C. § 922(g)(8). The statute provides:

      It shall be unlawful for any person . . .
         who is subject to a court order that—
             (A) was issued after a hearing of which such person received
             actual notice, and at which such person had an opportunity to
             participate;
             (B) restrains such person from harassing, stalking, or
             threatening an intimate partner of such person or child of such
             intimate partner or person, or engaging in other conduct that
             would place an intimate partner in reasonable fear of bodily
             injury to the partner or child; and
             (C)(i) includes a finding that such person represents a credible
             threat to the physical safety of such intimate partner or child;
             or
             (ii) by its terms explicitly prohibits the use, attempted
             use, or threatened use of physical force against such
             intimate partner or child that would reasonably be
             expected to cause bodily injury . . .

      to . . . possess in or affecting comm erce, any firearm or ammunition.

                                         -4-
M r. Edge challenges only whether the evidence established compliance with

subparagraph (A), which requires notice of the hearing and an opportunity to

participate. The jury was instructed on this requirement. W hen a defendant

challenges a jury finding of an element of his offense, “we view the evidence,

both direct and circumstantial, in the light most favorable to the government and,

without weighing conflicting evidence or considering the credibility of w itnesses,

we determine whether that evidence, if believed, would establish the . . .

element.” United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir.

1999).

         Although M r. Edge testified that he never received notice of a hearing

regarding a permanent protective order and was never permitted an opportunity to

object, two other witnesses testified to the contrary: Deputy Sheriff Rita Duncan

said that she served M r. Edge with the temporary protective order, which provides

notice of the later hearing. And Judge Payne stated that the order itself (which

has “by agreement of the parties” written on it) indicated that “rather than [M r.

and M rs. Edge deciding] to present evidence at a hearing,” they “just agree[d] that

a protective order could be entered into to resolve the issue, the dispute.” Aplt.

App. at 66. This testimony, if believed, would have established that M r. Edge

had notice of his hearing. 2

         2
       In a footnote M r. Edge seems to contend that the jury was improperly
instructed that “‘whether he chose to be present or not is of no consequence.’”
                                                                      (continued...)

                                          -5-
      As to the opportunity to participate, M r. Edge appears to argue that the

order could comply with the statute’s opportunity requirement only if he w ere

represented by counsel. But he cites no support for that proposition, and we are

aware of none. See United States v. Wilson, 159 F.3d 280, 289–90 (7th Cir. 1998)

(court rejected defendant’s contention that he was not a prohibited person under

18 U.S.C. § 922(g)(8) because he was not represented by counsel when the

protective order was issued); see also United States v. Banks, 339 F.3d 267,

271–72 (5th Cir. 2003) (discussing Wilson with approval).

      B.     Basing Sentencing Findings on Acts on W hich State Jury
             Acquitted M r. Edge

      M r. Edge was acquitted in state court on the charge of feloniously pointing

a firearm. He contends that the sentencing judge therefore could not enhance his

sentence on the ground that he had pointed the handgun at M s. Dixon. Doing so,

he says, violates the Sixth A mendment because a jury did not find the necessary

facts and violates the Fifth Amendment because the judge did not employ the

beyond-a-reasonable-doubt burden of proof. W e disagree.

      M r. Edge’s Sixth Amendment argument is precluded by precedent. The

Sixth Amendment right to a jury trial is not implicated by judicial fact finding

under a discretionary sentencing regime, as is now the case in federal court. See

      2
       (...continued)
Aplt. Br. at 43 n.30. But he fails to explain why the quoted language was
improper, so we decline to address the issue. See United States v. M cConnel, 464
F.3d 1152, 1158 (10th Cir. 2006).

                                        -6-
Rita v. United States, No. 06-5754, 2007 W L 1772146, at *13 (U.S. June 21,

2007) (Sixth Amendment is violated by increase in sentence based on judicial fact

finding only if the sentencing statute “forbids a judge to increase a defendant’s

sentence unless the judge finds facts that the jury did not find (and the offender

did not concede).”); United States v. Ramirez, 479 F.3d 1229, 1255–56 (10th Cir.

2007). That M r. Edge was acquitted in state court of the conduct considered by

the sentencing judge is of no moment. See United States v. M agallanez, 408 F.3d

672, 684 (10th Cir. 2005).

      As to M r. Edge’s Fifth Amendment due-process argument, we have

repeatedly held that the standard of proof for sentencing factors is preponderance

of the evidence. See United States v. Crockett, 435 F.3d 1305, 1319 (10th Cir.

2006); United States v. Oberle, 136 F.3d 1414, 1424 (10th Cir. 1998). M r. Edge

has given us no reason to reject that standard when considering “acquitted

conduct.” Indeed, United States v. Watts, 519 U.S. 148 (1997) (per curiam),

which held that acquitted conduct could be considered by a sentencing judge,

noted that “application of the preponderance standard at sentencing generally

satisfies due process,” id. at 156. It qualified that statement only by suggesting

that perhaps clear and convincing evidence might be necessary “in extreme

circumstances” when the conduct “would dramatically increase the sentence.” Id.

M r. Edge has pointed to no such extreme circumstance here. W e are not

persuaded that it makes a due-process difference that the sentencing judge had not

                                         -7-
heard the state-trial evidence, and we find nothing in United States v. Booker, 543

U.S. 220 (2005), to alter this analysis.

III.   SU FFIC IE NC Y OF E VIDENCE AT SENTENCING

       M r. Edge contends that there was insufficient evidence that he pointed a

firearm at M s. Dixon, so the sentencing enhancement based on that alleged

conduct must be rejected. W e review a judge’s decision to enhance a sentence for

clear error. See United States v. Valdez-Arieta, 127 F.3d 1267, 1270 (10th Cir.

1997). “Under the clearly erroneous standard, we will not reverse the district

court’s findings unless they are without factual support in the record, or unless

after reviewing all the evidence, we are left with the definite and firm conviction

that a mistake has been made.” Id. (internal quotation marks omitted).

       The sentencing judge’s decision was not clearly erroneous. M s. Dixon

testified at sentencing that M r. Edge pointed the gun at her. It was not

unreasonable for the judge to believe the witness. See United States v. Wiseman,

172 F.3d 1196, 1207 (10th Cir. 1999) (appellate court shows great deference to

credibility determinations). Nothing she said was inherently unbelievable or

contrary to the laws of nature. And although M r. Edge says that his inability to

secure the state-court trial transcript before sentencing prevented the court from

hearing M s. Dixon’s absurd testimony in the earlier trial, he had the opportunity

to ask for a continuance and declined to do so.




                                           -8-
IV .   C ON CLU SIO N

       W e A FFIR M the judgment below.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




                                      -9-
