                                                                              F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              June 19, 2007
                                    TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                              Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 06-2259
 PATRICK AYON,                                        (D.C. No. CR-05-2160-WPJ)
                                                            (D. New Mexico)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and MURPHY, Circuit Judges.


       Defendant Patrick Ayon appeals his seventy-month sentence, contending that the

district court erroneously added four levels to his offense level under U.S.S.G. §

2K2.1(b)(5) for using or possessing any firearm or ammunition in connection with

another felony offense. The district court concluded that Ayon had used a firearm to

commit the New Mexico felony offenses of aggravated assault, shooting at a dwelling or

from a vehicle, and contributing to the delinquency of a minor. Ayon contends that the

district court failed to make sufficient factual findings and conclusions of law and that the


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
only evidence supporting the enhancement was unreliable hearsay. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                            I.

      On August 27, 2005, Ayon encountered Joseph Ramirez at a birthday party in

Albuquerque, New Mexico. After a verbal altercation between the two men, Ayon and

Ramirez were asked to leave the party. Ayon then went home with his two minor

nephews, Lawrence and Michael Candelaria (hereinafter referred to as Lawrence and

Michael, respectively), and was joined at some point by a friend named Michael Vallez.

Over the course of the day, Ayon and Ramirez traded a series of threatening phone calls,

with each man threatening the other man with various forms of physical violence.

      Eventually, Ayon asked Lawrence, Michael, and Vallez to accompany him to

Ramirez’s apartment because he and Ramirez were going to fight. When he arrived at the

apartment complex, Ayon got out of his car and Ramirez then walked out onto the

balcony of his apartment with a rifle. The parties agree that Ayon and Ramirez shot at

each other. Ayon then drove away from the scene with Michael in the car, leaving Vallez

and Lawrence behind.

      Albuquerque Detective Jamie Mueller was nearby and heard a series of gunshots,

the first set being from what he described as a higher-caliber weapon and the second set

from a lower-caliber weapon. He proceeded to investigate. After driving a block,

Mueller saw Ayon driving through a stop sign as he was trying to put on his seat belt.

Mueller initiated a stop and Ayon was eventually arrested for driving while intoxicated.

                                            -2-
During the stop, Mueller asked Ayon if he had heard gunshots. Ayon first replied he had

not, but later admitted that he had heard gunshots “and that kids were exchanging gunfire

between two apartment complexes.” ROA, Vol. IV, at 10. Over the next few hours, the

police pieced together that a shooting had occurred at Ramirez’s apartment complex.

       As a result of the police finding a shotgun in Ayon’s vehicle, Ayon was indicted

for violating 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), felon in possession of a

firearm and ammunition. Ayon eventually pled guilty to the charge. The presentence

report (PSR) submitted by the Probation Office prior to sentencing included in its

Guidelines calculation a proposed four-level enhancement of Ayon’s base offense level

under § 2K2.1(b)(5), which provided in part: “If the defendant used or possessed any

firearm or ammunition in connection with another felony offense . . . increase [the

defendant’s offense level] by 4 levels.” 1 The PSR characterized Ayon’s firing of a

firearm at Ramirez at the apartment complex as the use or possession of a firearm in

connection with another felony offense:

       Pursuant to U.S.S.G. § 2K2.1(b)(5), if the defendant used or possessed any
       firearm or ammunition in connection with another felony offense, increase
       by 4 levels. The offense conduct regarding this offense revealed that
       Albuquerque, New Mexico, police officers responded to a scene regarding
       shots fired. During the investigation, officers spoke to witnesses, who
       stated they observed the defendant shooting a handgun at an unidentified
       victim standing in a parking lot. Although the victim was never found or
       identified and there are no pending charges against the defendant regarding
       the shooting, the defendant could have been charged with a felony offense

       1
         This provision has since been moved to § 2K2.1(b)(6) without otherwise being
altered. See United States v. Howse, 478 F.3d 729, 730 (6th Cir. 2007). We will
nonetheless continue to refer to this provision as “§ 2K2.1(b)(5)” for consistency’s sake.

                                            -3-
       punishable by more than a year. Therefore, a 4 level enhancement is
       applicable

PSR at 5. With a criminal history category of V and a total offense level of twenty-one,

the PSR recommended a Guidelines sentence range of seventy to eighty-seven months.

       Ayon objected to the four-level enhancement under § 2K2.1(b)(5), arguing that his

use of the firearm was not a felony offense because he was acting in self-defense. The

district court held an evidentiary hearing before sentencing to determine if there was

sufficient evidence to support the enhancement. Testifying on Ayon’s behalf, Lawrence

stated that he was “positive” that Ramirez fired first. ROA, Vol. IV, at 36, 39. The

district court also heard testimony from Special Agent Timothy King of the federal

Bureau of Alcohol, Tobacco, Firearms, and Explosives, who was working on a task force

with the Albuquerque Police Department on the day of the shooting. King testified about

two statements that Michael made to King on the night of the shooting, in which Michael

at first stated that he did not know who was shooting at the apartment complex but later

said that he was “certain” that Ayon shot first. Id. at 62, 86.

       After the evidentiary hearing concluded, the district court overruled Ayon’s

objection to the four-level enhancement, concluding that the United States had established

that Ayon’s conduct in firing a weapon at Ramirez’s apartment complex satisfied §

2K2.1(b)(5) because it constituted the use of a firearm in connection with the following

New Mexico state felony offenses: aggravated assault; shooting at a dwelling or from a

vehicle; and contributing to the delinquency of a minor. The district court adopted the



                                             -4-
PSR’s calculation of Ayon’s total offense level and imposed a term of imprisonment of

seventy months.

                                              II.

       Ayon contends that the district court erroneously applied § 2K2.1(b)(5)’s four-

level enhancement for use or possession of a firearm or ammunition in connection with

another felony offense. First, Ayon asserts that the district court erred by failing to make

sufficient factual findings to support the enhancement. Second, Ayon contends that the

only reliable evidence presented at the sentencing hearing showed that he acted in self-

defense when he fired at Ramirez, not that he committed a felony offense under state law.

                                   A. Standard of Review

       In reviewing a district court’s application of the Sentencing Guidelines, “we

review factual findings for clear error and legal determinations de novo.” United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam) (citations omitted). The court

“‘will not reverse a lower court’s finding of fact simply because we would have decided

the case differently. Rather, [we] . . . ask whether, on the entire evidence, [we are] left

with the definite and firm conviction that a mistake has been committed.’” United States

v. Edeza, 359 F.3d 1246, 1248 (10th Cir. 2004) (quoting Easley v. Cromartie, 532 U.S.

234, 242 (2001)) (alterations in original). It is the government’s burden to demonstrate,

by a preponderance of the evidence, that Ayon is subject to a sentence enhancement

under § 2K2.1(b)(5). United States v. Farnsworth, 92 F.3d 1001, 1009 (10th Cir. 1996)

(citing United States v. Pantelakis, 58 F.3d 567, 568 (10th Cir. 1995)).

                                             -5-
                 B. Sufficiency of the District Court’s Factual Findings

       Ayon argues that the district court’s factual findings are inadequate because the

district court failed to rule on the disputed issue of whether Ayon acted in self-defense

and also failed to explain how the facts supported a four-level enhancement. Ayon

asserts that we must vacate his sentence and remand to the district court for further factual

findings because we would otherwise have to engage in conjecture to divine the basis for

the district court’s enhancement.

       We review compliance with the Federal Rules of Criminal Procedure de novo.

United States v. Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (citation

omitted), cert. denied, 127 S. Ct. 1338 (2007). Rule 32(i)(3)(B) provides that, “[a]t

sentencing, the court . . . must – for any disputed portion of the presentence report or

other controverted matter – rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not consider

the matter in sentencing . . . .” The rule ensures that the district court’s calculation of the

Guidelines range did not result from legal or factual error by exposing the basis of the

calculation and guarantees that the burden of proof on enhancements is not impermissibly

shifted to the defendant. See United States v. Williams, 374 F.3d 941, 947 (10th Cir.

2004) (discussing earlier version of the rule). “A ruling on a disputed issue need not be

exhaustively detailed, but it must be definite and clear.” Id. at 947 n.9.

       In the case before us, the district court’s findings and conclusions are definite and

clear enough to satisfy Rule 32. The district court ruled on the disputed issue of whether

                                              -6-
the shooting on August 27, 2005, justified a four-level enhancement, concluding that a

four-level enhancement was appropriate. ROA, Vol. IV, at 102-03. The district court

found that Ayon’s conduct amounted to the state felony offenses of aggravated assault;

shooting at a dwelling or from a vehicle; and contributing to the delinquency of a minor.

Id. at 103. Further, the district court noted on the record that it was basing its decision on

the testimony presented at the sentencing hearing, instead of simply adopting the PSR’s

factual findings. See Farnsworth, 92 F.3d at 1011 (remanding to the district court for

failing to make factual findings under Rule 32 because the district court “simply

adopt[ed] the presentence report as its finding”).

       Contrary to Ayon’s contention, we need not engage in conjecture to determine the

district court’s reasoning. As presented, the district court had to choose between the

conflicting statements of two witnesses. The only evidence directly supporting the

United States’ argument that Ayon did not act in self-defense was Michael’s statement to

Agent King that Ayon fired first. The only evidence directly supporting Ayon’s argument

that he acted in self-defense was Lawrence’s testimony that Ramirez, not Ayon, fired

first. Therefore, the only avenue by which the district court could have arrived at its

conclusion – that Ayon used a firearm in connection with a felony offense – was to

believe Michael’s statement and disbelieve Lawrence’s.

       Ayon argues that the basis of the district court’s ruling is unclear because it might

have concluded that Ayon used or possessed a firearm in connection with another felony

offense, and rejected Ayon’s claim of self-defense, in one of two ways: (1) Ramirez fired

                                              -7-
at Ayon first, but Ayon would not be entitled to plead self-defense in a New Mexico

criminal case because Ayon was “the aggressor” by driving to the apartment complex to

initiate a fight with Ramirez; or (2) Ayon fired at Ramirez first. Ayon theorizes that the

district court might have come to the first, rather than the second, conclusion because the

United States argued this position at the hearing. Ayon further argues that the first

conclusion misstates New Mexico law because a person who initiates a fight with non-

deadly force may still defend himself under New Mexico law if his opponent resorts to

deadly force in retaliation, thereby raising the possibility that the district court’s

application of the four-level enhancement to Ayon’s offense level resulted from a

mistaken interpretation of state law. Without a clearer indication of whether the district

court adopted the first or second conclusion, Ayon argues that we should remand to allow

the district court to make a more specific finding.

       The district court could not have erred as Ayon suggests because the United States

did not argue to the district court that Ayon was the aggressor simply for initiating a fight.

Instead, the United States argued that circumstantial evidence pointed to Ayon as “the

aggressor” who initiated the gun battle by firing his gun at Ramirez, such as various

comments that Ayon made before the fight indicating that he and his posse should “do it.”

ROA, Vol. IV, at 93-94. At most, the United States argued that Ayon’s decision to

initiate a fight with Ramirez corroborated that Ayon fired the first shot in the gun battle,

not that Ayon was precluded from arguing self-defense by the fact that Ayon drove over

to the apartment complex to start a fight using non-deadly force. See generally id.

                                               -8-
(“Michael Candelaria also indicated that it was the defendant who fired the first shot,

which is consistent with the defendant driving over to the southeast part of town and

looking to confront Joseph Ramirez.”).

                  C. Sufficiency of the Evidence at Sentencing Hearing

       Ayon next contends that the United States failed to show by a preponderance of

the evidence that he used a firearm in connection with the felony offenses of aggravated

assault and shooting at a dwelling or from a vehicle.2 In New Mexico,

       [a]ggravated assault consists of either:

       A. unlawfully assaulting or striking at another with a deadly weapon;

       B. committing assault by threatening or menacing another while wearing a
       mask, hood, robe or other covering upon the face, head or body, or while
       disguised in any manner, so as to conceal identity; or

       C. willfully and intentionally assaulting another with intent to commit any
       felony.

       Whoever commits aggravated assault is guilty of a fourth degree felony.

N.M. S TAT. A NN. § 30-3-2 (2007).

       Assault consists of either:



       2
         The United States does not argue that the district court correctly determined that
the events of August 27, 2005, constituted “contributing to the delinquency of a minor.”
Instead, it argues that any error the district court may have made on delinquency was
harmless given its conclusion that Ayon committed two other state felony offenses:
aggravated assault and shooting at a dwelling or from a vehicle. Because the United
States’ argument on delinquency relies on whether the district court correctly decided that
Ayon committed aggravated assault and shooting at a dwelling or from a vehicle, we will
focus on whether sufficient evidence supports the district court’s conclusion that Ayon
committed those two offenses.

                                             -9-
       A. an attempt to commit a battery upon the person of another;

       B. any unlawful act, threat or menacing conduct which causes another
       person to reasonably believe that he is in danger of receiving an immediate
       battery; or

       C. the use of insulting language toward another impugning his honor,
       delicacy or reputation.

Id. § 30-3-1. As for shooting at a dwelling, it “consists of willfully discharging a firearm

at a dwelling or occupied building. Whoever commits shooting at a dwelling or occupied

building that does not result in great bodily harm to another person is guilty of a fourth

degree felony.” Id. § 30-3-8(A).

       King’s testimony which related Michael Candelaria’s statement establishes, by a

preponderance of the evidence, that Ayon committed aggravated assault and shooting at a

dwelling. Michael told King that Ayon fired a gun at Ramirez, establishing that Ayon

unlawfully assaulted Ramirez with a deadly weapon. See id. § 30-3-2 (aggravated

assault). It also established that Ayon willfully discharged a firearm at a dwelling or

occupied building, specifically Ramirez’s apartment complex. See id. § 30-3-8(A)

(shooting at a dwelling).

       Ayon argues, however, that Michael Candelaria’s statement should be disregarded

because it is hearsay lacking sufficient indicia of reliability. If that statement is removed

from consideration, Ayon argues, then the only reliable evidence produced at the hearing

as to his culpability was Lawrence’s testimony that Ramirez fired first. Ayon concludes

that the only reliable evidence therefore demonstrated that Ayon acted in self-defense and



                                             -10-
therefore was not guilty of a felony offense. See Pantelakis, 58 F.3d at 568 (“An intent to

lawfully defend oneself – even with an unlawful weapon – does not, however, warrant a

2K2.1(b)(5) enhancement.”).

       As a result, whether sufficient evidence supported the four-level enhancement

depends on whether the district court properly considered Michael’s hearsay statement in

applying the enhancement. Ayon is correct that Michael’s statement to King is hearsay

because it is an out-of-court statement being offered to show that Ayon fired first. See

F ED. R. E VID. 801(c). For hearsay to serve as a basis for a sentencing enhancement, the

Sentencing Guidelines require that a hearsay statement possess “sufficient indicia of

reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States

v. Dazey, 403 F.3d 1147, 1177 n.7 (10th Cir. 2005) (citation omitted). This is not a high

standard, for it requires only “minimal indicia of reliability.” United States v. Fennell, 65

F.3d 812, 813 (10th Cir. 1995) (citing United States v. Beaulieu, 893 F.2d 1177, 1181

(10th Cir. 1990)).

       Michael’s statement possessed sufficient indicia of reliability and the district court

properly relied on it to determine that Ayon did not act in self-defense.3 First, Michael’s

description of who fired what and when roughly matched what Mueller heard several



       3
         In an attempt to discredit Michael’s statement, Ayon points to Michael’s apparent
use of marijuana earlier in the day and speculates that Michael may have been swayed to
implicate Ayon out of fear of being charged as an accomplice, but credibility is an issue
for the district court, not us, to resolve. Farnsworth, 92 F.3d at 1011 (“‘Credibility, of
course, is a matter for the district court, not this court.’”) (quoting United States v.
Draper, 24 F.3d 83, 85 (10th Cir. 1994)).

                                            -11-
blocks away. Michael told King that Ayon fired first with a .357 revolver, followed by

Ramirez returning fire with a shotgun and Vallez shooting with a .22 pistol. ROA, Vol.

IV, at 61-62. Mueller testified, consistent with Michael’s description, that he heard a

series of “larger-caliber shots . . . followed by a series of what sounded [like] smaller,

higher-pitched fire, firing rounds.” Id. at 8. Although Ayon correctly notes that

Michael’s statement and Mueller’s testimony do not correspond perfectly, the general

trend is the same in both: a high-caliber weapon was fired first (.357 revolver), followed

by shots from a lower-caliber weapon (.22 pistol).

       Second, as Ayon’s nephew, Michael had a motive to make up a story in Ayon’s

favor, yet instead made a statement incriminating Ayon. Third, Lawrence’s testimony

corroborates that Ayon went to Ramirez’s apartment to attack Ramirez.4 According to

Lawrence, before the shooting Ayon threatened to beat Ramirez up and told Ramirez that

he wanted to fight. See id. at 32 (“‘You better be prepared to get your ass whooped’ and

shit like that.”), 42 (“Q. And your understanding was he was going over there because he

wanted to have a fight with Joseph Ramirez? A. Yes, sir.”). When Ayon arrived at the

complex, he told Ramirez to come outside because they were “gonna throw down.” Id. at

       4
          Citing to United States v. Gregg, 467 F.3d 1126 (8th Cir. 2006), Ayon argues that
the district court could not have used any of Lawrence’s testimony to support the
enhancement if it found that Michael’s testimony was more credible on the issue of who
fired first, or else the district court’s factual findings would have been internally
inconsistent. See id. at 1129 (“A court’s credibility findings for purposes of calculating
the appropriate Guideline range and fashioning a sentence under § 3553(a) must be
internally consistent.”). Yet Ayon does not explain why it would be inconsistent for the
district court to find Lawrence’s testimony to be more credible as to some facts, such as
the events leading up to the shootout, but not as to others, such as the shootout itself.

                                             -12-
42 (internal quotation marks omitted). Although Lawrence testified that Ayon only

wanted to “fight” Ramirez and, somewhat paradoxically, did not want to “hurt” Ramirez,

Lawrence also explained that he was so worried that something bad might happen – like a

shooting – that he tagged along to try to prevent events from escalating. See id. at 27-28,

42 (“I said, ‘I’m going to go with you,’ . . . because I didn’t want nothing else to happen

like what did happen.”). Fourth, Ayon’s dishonest denial, when pulled over by Mueller

minutes after the shooting, that he had heard gunfire, and his subsequent story about “kids

. . . exchanging gunfire,” confirm that Ayon was attempting to hide criminal conduct. See

id. at 10.

       Ayon also contends that the facts of his case are analogous to Fennell, in which we

reversed a district court’s application of a four-level enhancement under § 2K2.1(b)(5)

based on a hearsay statement that the defendant’s former girlfriend made to a probation

officer. 65 F.3d at 813. We noted, in part, that the former girlfriend had not made a

sworn statement and there were no facts in the record corroborating her account of the

alleged shooting. Id. We held that “[u]nsworn out-of-court statements made by an

unobserved witness and unsupported by other evidence form an insufficient predicate for

a sentence enhancement under 2K2.1(b)(5).” Id. at 814. Ayon contends that, similarly,

Michael’s statement was unsworn and there is no corroborating evidence to support

Michael’s accusation that Ayon fired first.

       Fennell, however, is easily distinguished. Unlike the probation officer in Fennell,

who interviewed the former girlfriend by telephone and therefore “did not have an

                                              -13-
opportunity to observe her demeanor,” id. at 813, Ayon admits that King interviewed

Michael in person, Aplt. Opening Br. at 28-29. As a result, King could observe whether

Michael appeared to be telling the truth.5 Further, Michael’s statement was given only a

few hours after the shooting occurred, whereas the former girlfriend in Fennell was

interviewed after the defendant pled guilty and the probation office was preparing the

presentence report. See Fennell, 65 F.3d at 813. Because Michael’s statement was made

closer to the event in question, his statement is more likely to be credible. See

Farnsworth, 92 F.3d at 1010 (concluding that a hearsay statement was more reliable than

the one in Fennell because it was “a contemporaneous statement [made] to the arresting

officer”). Finally, as noted above, there is corroborating evidence supporting that Ayon

fired first.

        In a final related challenge to his sentence, Ayon argues that application of §

2K2.1(b)(5) to increase his sentence violates due process, under Apprendi v. New Jersey,

530 U.S. 466 (2000), because it involved judicial fact-finding under a preponderance of

the evidence standard, not jury fact-finding which requires proof beyond a reasonable

doubt. Aplt. Opening Br. at 30-32. Apprendi applies when a sentence has been increased

above the statutory maximum based on a fact not found by a jury beyond a reasonable



        5
         Although Ayon acknowledges that King interviewed Michael in person, Ayon
alleges that King thought Michael was lying. Ayon’s argument misstates King’s
testimony: King thought that Michael had left out facts in his first statement, in which he
said that he did not know who had been firing weapons at the apartment complex, but had
“decided to come clean in the second statement” when he said that Ayon fired first.
ROA, Vol. IV, at 86.

                                             -14-
doubt. See United States v. Willis, 476 F.3d 1121, 1131 n.3 (10th Cir. 2007). Apprendi

does not apply when a fact found by a judge merely increases the defendant’s Guidelines

range without increasing the defendant’s sentence above the statutory maximum. Id. As

a result, Ayon’s seventy-month sentence did not violate Apprendi because it did not

exceed the ten-year statutory maximum. See 18 U.S.C. § 924(a)(2).

                                               III.

       Because Michael’s statement to King that Ayon fired first at Ramirez possesses

sufficient indicia of reliability, the district court did not err in relying upon it to find that

Ayon used or possessed any firearm in connection with the felony offenses of aggravated

assault and shooting at a building pursuant to U.S.S.G. § 2K2.1(b)(5). We AFFIRM the

district court’s sentence of seventy months.


                                                      Entered for the Court


                                                      Mary Beck Briscoe
                                                      Circuit Judge




                                               -15-
