                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         June 7, 2016

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-8019

EMILIANO FRANCISCO MARTINEZ,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                          (D.C. No. 1:14-CR-00274-ABJ-1)
                       _________________________________

Grant Russell Smith, Research & Writing Specialist, Office of the Federal Public
Defender, Cheyenne, Wyoming (Virginia L. Grady, Federal Public Defender, and
Veronica S. Rossman, Assistant Federal Public Defender, Office of the Federal Public
Defender, Denver, Colorado, with him on the briefs), for Defendant-Appellant.

Eric J. Heimann, Assistant United States Attorney, Office of the United States Attorney,
Cheyenne, Wyoming (Christopher A. Crofts, United States Attorney, Office of the
United States Attorney, Cheyenne, Wyoming, with him on the brief), for Plaintiff-
Appellee.
                       _________________________________

Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
                  _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      Emiliano Martinez pleaded guilty to possessing an unregistered, short-barrel

shotgun in violation of federal law. 26 U.S.C. §§ 5841, 5845(a), (d), 5861(d), and
5871. Under his plea agreement, Martinez reserved the right to appeal his sentence if

the district court determined that his total offense level was greater than 23 under the

2014 United States Sentencing Guidelines. The district court calculated his total

offense level as 27 after applying a four-level enhancement for using or possessing a

firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Key to this

enhancement was the district court’s finding that Martinez had possessed a firearm in

connection with another felony offense—a burglary of the home from which the

shotgun Martinez later possessed was stolen.

      On appeal, Martinez contends that the district court clearly erred at sentencing

when it considered the hearsay statements of Eduardo Hernandez, who, in a police

interview, had admitted to committing the burglary with Martinez. Martinez argues

that Hernandez’s hearsay statements lacked sufficient indicia of reliability to support

their probable accuracy. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  BACKGROUND

A.    Palomo Burglary

      On July 14, 2014, Arlo Palomo’s home in Torrington, Wyoming was

burglarized. The burglary was extensive, lasting several hours. A burglar even took

time to eat a bowl of cereal. Among other items stolen was a Remington 870 12-

gauge shotgun. Mr. Palomo told police that his ex-wife, June Palomo, had bought the

shotgun at a Walmart in Scottsbluff, Nebraska. Inside the Palomo home, police found

a fingerprint left by Eduardo Hernandez.



                                           2
B.    Discovery of a Short-Barrel Shotgun

      On July 23, 2014, nine days after the burglary, agents from the Wyoming

Division of Criminal Investigation (DCI) and the U.S. Drug Enforcement

Administration executed a search warrant—one unrelated to the Palomo burglary—

on the car of Martinez’s girlfriend, Amanda Dowers. In Dowers’s car trunk, the

agents found and seized a Remington 870 12-gauge shotgun with a 17-inch barrel.1 A

witness later told DCI that the shotgun belonged to Martinez.

      Sometime after the agents executed the search warrant, U.S. Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agents Steve McFarland

and Matthew Wright took possession of the shotgun and began investigating

Martinez. The agents ran a trace on the shotgun’s serial number and learned that June

Palomo had bought the shotgun from a Walmart in Scottsbluff, Nebraska. Although

this was consistent with Arlo Palomo’s statements to Torrington police after the

burglary, the record doesn’t say whether Torrington police had advised the ATF

agents about the Palomo burglary before the ATF agents ran the trace.

C.    Interview with Martinez

      On September 26, 2014, two months after officers seized Martinez’s short-

barrel shotgun, Agents McFarland and Wright interviewed Martinez in Torrington.

During the non-custodial interview, Martinez said that he obtained the shotgun from


      1
        Under 26 U.S.C. §§ 5841 and 5845, shotguns with barrels less than 18 inches
long must be registered in the National Firearms Registration and Transfer Record.
Neither Martinez nor Dowers had registered any firearms, and the seized shotgun
wasn’t registered to any other person or entity.
                                          3
an unidentified white male in a field “a couple months” before Dowers’s arrest (so by

his account he would have obtained it sometime near late May 2014). R. vol. 1 at 11.

Martinez also told Agents McFarland and Wright that the barrel was already cut

down when he obtained the shotgun and that he had put the shotgun in Dowers’s car

trunk the day that she was arrested. Further, Martinez said that he had previously

buried the shotgun in the ground “because there was no need for [him] to be messing

with it unless he needed it; and he would leave it buried until the appropriate time.”

Id. (alteration in original) (quotation marks omitted).

D.    Interviews with Hernandez

      On November 18, 2014, four months after the burglary, a Torrington police

officer interviewed Hernandez about a string of local burglaries, including the

Palomo burglary. At first, Hernandez denied any involvement in the burglaries. After

leaving the interview room for “a few seconds,” the Torrington police officer

returned and “became more accusatory” in his questioning. R. vol. 3 at 39.

Hernandez again denied any involvement in the burglaries. But during the same

interview, Hernandez eventually admitted that he had burglarized the Palomo home

and had stolen a shotgun during the burglary. The next day, Torrington police again

interviewed Hernandez. During this second interview, Hernandez confirmed his

earlier admissions. But this time Hernandez implicated Martinez in the burglary, too.

Hernandez said that Martinez had stolen some tools while they were both there and

that Martinez had returned to the Palomo home later in the day and had stolen

additional property. Importantly, Hernandez told police that Martinez had several of

                                            4
the firearms Hernandez had stolen. Torrington police memorialized both of the

Hernandez interviews in written reports.

E.    Martinez’s Plea Agreement and Presentence Investigation Report

      Following a criminal complaint on October 8, 2014, and a preliminary hearing

on October 15, 2014, a grand jury indicted Martinez on two counts: (1) felon in

possession of a firearm (Count One), 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and (2)

possession of an unregistered, short-barrel firearm (Count Two), 26 U.S.C. §§ 5841,

5845(a), (d), 5861(d), 5871. On December 17, 2014, Martinez agreed to plead guilty

to Count Two, and the government agreed to dismiss Count One. Under the signed

plea agreement, the parties agreed to a base offense level of 22 under U.S.S.G. §

2K2.1(a)(3).

      The parties also agreed to the application of two separate enhancements. First,

the parties agreed to recommend application of U.S.S.G. § 2K2.1(b)(4)(A), which

adds two offense levels for possessing a stolen firearm. Second, the parties agreed to

recommend application of U.S.S.G. § 2K2.1(b)(3)(B), which adds two offense levels

for possessing a destructive device. Also under the plea agreement, the government

agreed to “recommend the court grant a reduction of three offense levels reflect[ing]

his acceptance of responsibility” under U.S.S.G. § 3E1.1. R. vol. 2 at 10. Martinez




                                           5
reserved the right to appeal if the district court calculated his total offense level as

greater than 23.2

      On January 7, 2015, Torrington police informed ATF Special Agents

McFarland and Wright about the Palomo burglary; that a shotgun had been stolen

during that burglary; and that Hernandez had admitted to burglarizing the Palomo

home with Martinez.

      On February 6, 2015, the probation office issued Martinez’s Presentence

Investigation Report (PSR). As contemplated by the plea agreement, the PSR set

Martinez’s base offense level as 22 and included the two two-level enhancements for

possession of a stolen firearm and possession of a destructive device. But the PSR

included an additional four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)—

one unaddressed in the plea agreement—for Martinez’s possessing a firearm in

connection with another felony, reporting that “[Martinez] and [Eduardo] Hernandez

burglarized a residence on July 14, 2014, and stole the firearm during the burglary.”3


      2
        The plea agreement thus contemplated the district court setting a base offense
level of 22, adding four levels for the agreed-upon enhancements, and subtracting
three levels for acceptance of responsibility under U.S.S.G. § 3E1.1.
      3
          U.S.S.G. § 2K2.1(b)(6)(B) provides that if the defendant

           used or possessed any firearm or ammunition in connection with
           another felony offense; or possessed or transferred any firearm or
           ammunition with knowledge, intent, or reason to believe that it
           would be used or possessed in connection with another felony
           offense, [the defendant’s offense level will] increase by 4 levels.

Additionally, a particularly relevant application note provides that § 2K2.1(b)(6)(B)
applies “in a case in which a defendant who, during the course of a burglary, finds
                                           6
R. vol. 2 at 21. After subtracting two offense levels for accepting responsibility,

U.S.S.G. § 3E1.1(a), and one level for assisting authorities in the investigation of his

own misconduct by timely notifying authorities of his intention to enter a guilty plea,

id. § 3E1.1(b), the PSR calculated Martinez’s total offense level as 27.

      The PSR also itemized Martinez’s extensive criminal history. In addition to his

other convictions, Martinez had pleaded guilty or no contest to six separate thefts

between 2003 and 2011. All told, Martinez accumulated 21 criminal-history points,

far more than the 13 needed for a criminal-history category of VI. The advisory

Guidelines range for a total offense level of 27 and a criminal-history category of VI

is 130 to 162 months’ imprisonment. But the maximum sentence for possessing an

unregistered, short-barrel shotgun is ten years’ imprisonment. 26 U.S.C. § 5871.

Thus, the advisory Guidelines range became 120 months’ imprisonment. U.S.S.G.

§ 5G1.1(a).

      Before the sentencing hearing, Martinez objected to the PSR’s four-level

enhancement for his possessing the shotgun in connection with the Torrington

burglary, arguing that his alleged participation in the burglary was “not readily

provable nor supported by credible evidence.” R. vol. 2 at 39.




and takes a firearm, even if the defendant did not engage in any other conduct with
that firearm during the course of the burglary.” U.S.S.G. § 2K2.1, cmt. 14(B). On
appeal, Martinez doesn’t address whether § 2K2.1(b)(6)(B) requires that he
personally have possessed the firearm during the burglary.
                                           7
F.    Sentencing Hearing

      On March 31, 2015, the district court held a sentencing hearing. To support the

PSR’s four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), the government

called Special Agent Wright as a witness. Agent Wright testified about ATF’s

investigation. He said that, soon after obtaining the shotgun, he ran a trace on its

serial number and learned that June Palomo had bought the shotgun from a Walmart

in Scottsbluff, Nebraska. Agent Wright also discussed what Martinez had told him

during Martinez’s interview. Finally, Agent Wright testified about portions of the

Torrington police reports memorializing their interviews with Hernandez. Martinez’s

attorney objected to Agent Wright’s testimony about the Torrington police reports,

arguing that the “multiple hearsay is so unreliable that I object to any use of that to

take this sentence from 92 months up to 120 months.”4 R. vol. 3 at 34. The district

court overruled the objection.5




      4
         Without the four-level enhancement, Martinez would have had a total offense
level of 23 and a criminal-history category of VI, yielding an advisory range of 92 to
115 months’ imprisonment.
      5
        Of course, a district court may consider hearsay evidence at sentencing if the
evidence has sufficient indicia of reliability to support its probable accuracy. See
United States v. Brewer, 983 F.2d 181, 185–86 (10th Cir. 1993) (“[I]t is well-
established that hearsay evidence is admissible at sentencing.”); U.S.S.G. § 6A1.3(a)
(“[A] court may consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the information has
sufficient indicia of reliability to support its probable accuracy.”). We interpret
Martinez’s objection at sentencing to mean that because of the multi-layered hearsay
here, the evidence was so unreliable that it shouldn’t have been considered under
U.S.S.G. § 6A1.3(a).
                                          8
      On direct examination, with the Torrington police reports in hand, Agent

Wright testified that Hernandez had admitted that he and Martinez together

burglarized the Palomo home. On cross-examination, Agent Wright acknowledged

that Hernandez initially denied any involvement in the burglary, that Hernandez later

claimed that Martinez had “muscled” the shotgun from him sometime after the day of

the burglary, and that Agent Wright had never spoken with Hernandez and wasn’t

present at Hernandez’s interviews with the Torrington police. Id. at 38–40.

      Despite having the Torrington police reports in front of him during his

testimony at the sentencing hearing, the sentencing-hearing transcript reveals that

Agent Wright wasn’t fully versed in the reports’ contents. At one point during his

testimony, Agent Wright was asked whether Hernandez had admitted to taking the

shotgun from the home. He responded, “If it’s in the report, then yes.” Id. at 41. In

response to another question asking whether Hernandez had initially said that he

hadn’t committed the burglary, Agent Wright responded, “That’s what is in the report

as my understanding, yes, sir.” Id. at 39. The government didn’t introduce the

Torrington police reports into evidence, and the reports aren’t in the appellate record.

      After Agent Wright testified, the government told the district court that it

didn’t “have other evidence in support of this offense characteristic.” Id. at 46. After

hearing argument on the applicability of the four-level enhancement, the district court

found that Martinez had participated in the Torrington burglary, so it applied the

enhancement. The district court explained its finding as follows:



                                           9
          The things I usually look for in . . . weighing statements such as
          the statement made by Mr. Hernandez would be what did he get
          out of it, was there some sort of promise of special treatment, the
          question not asked or evidence that wasn’t developed here.
          Clearly, Mr. Hernandez went [into] the interrogation intending to
          see how far he could push it by way of denial, and when that did
          not seem to be working, especially given the fact that his
          fingerprint was discovered within the premises, he eventually
          came clean and made admissions that not only implicated him but
          implicated his coactor, the defendant in this matter . . . . Mr.
          Martinez made the poor choice not only to commit the burglary
          but to do it with Mr. Hernandez, who made admissions against
          his interest and, frankly, against his associate, backed up by the
          fact that Mr. Martinez was found in possession of the firearm not
          so—at a later period, and there was a statement that it was
          muscled by this defendant, Mr. Martinez, and chosen by him for
          the, for the taking.

Id. at 48–49. After applying the enhancement, the district court sentenced Martinez to

the statutory maximum of ten years’ imprisonment, which also was a within-

Guidelines sentence under U.S.S.G. § 5G1.1(a). Martinez timely appealed.

                                    DISCUSSION

      Martinez challenges the district court’s application of the four-level

enhancement for his possessing the shotgun in connection with another felony. He

contends that the evidence supporting the enhancement was so unreliable that the

district court shouldn’t have considered it. Specifically, Martinez argues that

Hernandez’s statements lacked sufficient indicia of reliability to support their

probable accuracy. We conclude that the district court didn’t clearly err in finding

that Hernandez’s statements implicating Martinez—especially when considered with

all of the other evidence before the district court—had sufficient indicia of reliability

to support their probable accuracy. Therefore, we affirm.

                                           10
      We review for clear error a district court’s assessment of the reliability of

evidence supporting a sentencing enhancement. See United States v. Martinez-

Jimenez, 464 F.3d 1205, 1209–10 (10th Cir. 2006) (“We . . . conclude that the district

court did not clearly err in finding that the evidence establishing [the defendant’s]

prior conviction was sufficiently reliable.”).6

      In arguing that the district court erred in considering Hernandez’s hearsay

statements, Martinez relies chiefly on United States v. Fennell, 65 F.3d 812 (10th Cir.

1995). In Fennell, we reversed a district court’s four-level enhancement for using or

possessing a firearm in connection with another felony. Id. at 814. The enhancement

depended on our being willing to credit Fennell’s ex-girlfriend’s telephone account to

a testifying probation officer that Fennell had shot a machine gun at her. Id. at 813.

Felonious assault in Oklahoma depended on proof of “the intent to do bodily harm”

or the “intent to injure.” Id. Among the difficulties applying the enhancement,

presumably, was that no one explained how Fennell could fire a machine gun at his

girlfriend and miss. Although acknowledging that the girlfriend’s account might be




      6
         In view of this, the parties unsurprisingly apply the clear-error standard to the
district court’s evidentiary ruling made under U.S.S.G. § 6A1.3(a). But we wonder
whether the abuse-of-discretion standard fits better. See United States v. Alvarado-
Martinez, 556 F.3d 732, 735 (9th Cir. 2009) (“We review a district court’s evaluation
of the reliability of evidence used at sentencing for an abuse of discretion.” (citing
United States v. Alvarado-Guizar, 361 F.3d 597, 599–600 (9th Cir. 2004))). A ruling
under § 6A1.3(a) resembles a ruling under the Federal Rules of Evidence, not a
finding of fact. Regardless, we would affirm under either standard.
                                           11
“potential truth,” we saw problems with basing the enhancement “solely” on her

account.7 Id.

      Fennell guides us in evaluating whether the district court clearly erred when it

considered Hernandez’s hearsay statements. In finding insufficient indicia of

reliability in Fennell, we emphasized that “no other evidence . . . corroborates the

account given the preparing officer.” Id. In fact, we looked to the record to learn that

Oklahoma authorities had charged Fennell with a misdemeanor, not a felony. Id. We

took this as evidence that felonious intent to injure was lacking—meaning that

Fennell hadn’t tried to shoot his girlfriend with the machine gun. We declared that

this “tends to undermine, rather than buttress, confidence in the girlfriend’s hearsay

statements.” Id. But in Martinez’s case, we have evidence helping to corroborate

Hernandez’s statements.

      For starters, Hernandez knew that Martinez would have at least one firearm

stolen from a burglarized home. Martinez downplays this fact, suggesting that by the

time police interviewed Hernandez in mid-November, Hernandez could have learned

about Martinez’s arrest and charges, perhaps as early as October 15, 2014—the date

of Martinez’s preliminary hearing. But Martinez doesn’t explain how Hernandez


      7
         We said that “[t]he facts surrounding Mr. Fennell’s arrest, while suggesting
that the machine gun was fired during an altercation between Mr. Fennell and his
girlfriend, do not answer the question of whether Mr. Fennell’s actions constituted a
felony or a misdemeanor.” Fennell, 65 F.3d at 813. Because the government hadn’t
“bother[ed] to file the arrest report or even to summarize its contents with any
particularity,” we were “unable to determine if the girlfriend’s contemporaneous
statements to the state police support the story given the preparing officer [the
probation officer who prepared the PSR].” Id. at 813 n.2.
                                          12
would have known from this that Martinez’s charged firearm came from one of the

burglarized homes.

       In addition, Martinez’s possession of the shotgun nine days after it was stolen

(the date law enforcement searched Dowers’s car and arrested her) also provides

some corroborative evidence of Martinez’s involvement in the burglary. This is

especially true given Martinez’s actions during that nine-day period. For example,

explaining the dirt on the shotgun when agents seized it, Martinez said that he had

earlier buried it in a field but later unearthed it before putting it in Dowers’s car trunk

the day that she was arrested. These suspicious actions are consistent with Martinez’s

having obtained the shotgun from the Palomo home. Martinez also couldn't rationally

explain how he came to possess the shotgun. Martinez’s story about getting the

shotgun “in a field” from “an unknown white guy” hardly inspires confidence—

especially since he said that happened in late May 2014, long before the Palomo

burglary. R. vol. 3 at 44. That Martinez lied about when (and likely where) he got

the shotgun strongly suggests that he didn’t want police talking to Hernandez.

       Further, in assessing whether Hernandez’s statements had sufficient indicia of

reliability, the district court was entitled to rely on Martinez’s long history of theft

offenses—six separate guilty or no-contest pleas in less than ten years. See United

States v. Ruby, 706 F.3d 1221, 1230 (10th Cir. 2013) (“While prior incidents are not

necessarily probative of later conduct, Fed. R. Evid. 404(a), this type of evidence

may help establish another piece of the minimal indicia of reliability necessary to



                                            13
consider hearsay at sentencing.” (citing United States v. Damato, 672 F.3d 832, 847

(10th Cir. 2012) (quotation marks omitted)).

      Aside from the comparisons to Fennell, Martinez argues that Hernandez’s

statements are unreliable because they were inconsistent. Specifically, Martinez

characterizes Hernandez’s Martinez-muscled-me-out-of-the-shotgun story and the

Martinez-was-with-me-when-I-burglarized-the-house story as conflicting accounts.

But we agree with the district court that the two accounts were one, evolving story

reluctantly making its way toward truth. The district court sensibly interpreted

Hernandez’s statements. Taken together, the corroborative evidence mentioned above

provides additional support for the district court’s determination that Hernandez’s

statements were probably accurate. We therefore conclude that the district court

didn’t clearly err when it considered the statements.

                                   CONCLUSION

      The district court didn’t clearly err when it considered Agent Wright’s

testimony regarding Hernandez’s statements to Torrington police. Because of

substantial corroborative evidence, the statements had sufficient indicia of reliability

to support their probable accuracy. We therefore affirm the district court’s

consideration of Agent Wright’s testimony and its application of the four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B).




                                          14
