United States v. Hargrove , 911 F.3d 1306 ( 2019 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    January 2, 2019
    PUBLISH
    Elisabeth A. Shumaker
    UNITED STATES COURT OF APPEALS Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                   No. 17-2102
    JOHN WAYNE HARGROVE,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of New Mexico
    (D.C. No. 2:16-CR-02705-RB-2)
    Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa,
    Oklahoma, for Defendant-Appellant.
    Dustin C. Segovia, Assistant United States Attorney (John D. Tierney, Acting
    United States Attorney, with him on brief), Office of the United States Attorney
    for the District of New Mexico, Las Cruces, New Mexico, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
    HOLMES, Circuit Judge.
    United States Border Patrol agents found Defendant-Appellant John Wayne
    Hargrove, his girlfriend Janelle Richter, and Edgar Silvas-Hinojos in the desert
    near the border between Arizona and New Mexico. They were all in Mr.
    Hargrove’s truck, along with nearly 300 pounds of marijuana and two firearms.
    Mr. Hargrove was subsequently charged with two offenses: (1) conspiracy to
    distribute more than 100 kilograms of marijuana in violation of 
    21 U.S.C. § 846
    ;
    and (2) possession with the intent to distribute 100 kilograms or more of a
    mixture and substance containing a detectable amount of marijuana, and aiding
    and abetting said possession, in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B), and
    
    18 U.S.C. § 2
    . After a two-day jury trial, Mr. Hargrove was found guilty and
    sentenced to sixty months’ imprisonment.
    Mr. Hargrove now raises two challenges on appeal. First, with regard to
    his trial, Mr. Hargrove asserts that the district court erred in failing to grant him a
    mistrial after the prosecutor elicited testimony that the district court had
    previously barred. Second, Mr. Hargrove contends that the district court erred in
    failing to grant him safety-valve relief under § 5C1.2 of the United States
    Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Because we hold that the
    district court did not err with respect to either ruling, we affirm.
    2
    I
    A
    One night in February 2016, a Border Patrol agent detected seven
    backpackers in the desert near Rodeo, New Mexico. 1 This rural area is known for
    narcotics trafficking. After that agent observed the backpackers, he alerted other
    Border Patrol agents, who moved in to apprehend the backpackers. The agents
    observed the seven backpackers enter an area containing ranching equipment. Six
    of the seven backpackers then left this area without their backpacks. The agents
    detained these six backpackers. The backpackers were dressed in camouflage
    clothing and wearing carpeted booties on their feet, which are typically worn to
    mask footprints. They admitted they had entered the country illegally.
    The dispatched agents then began looking for the missing (i.e., seventh)
    backpacker and the discharged backpacks. The agents discovered a truck that
    appeared to be occupied by two individuals who were “trying to conceal
    themselves or pretend[ing] to be sleeping in the truck, kind of slouching low in
    their chairs.” R., Vol. III, at 46 (Trial Tr., dated Oct. 17–18, 2016). As they
    approached, the agents could detect the smell of marijuana emanating from the
    truck. An agent tapped on the truck’s window and asked the occupant on the
    1
    In the narcotics-trafficking context, a “backpacker” is a person who
    smuggles marijuana across the United States-Mexico border. See R., Vol. III, at
    36–37 (Trial Tr., dated Oct. 17–18, 2016).
    3
    driver’s side—a woman, later identified as Ms. Richter—to roll down the
    window. After she did so, Ms. Richter got out of the vehicle. Likewise, an agent
    also asked the occupant of the front passenger’s side of the vehicle—a man, later
    identified as Mr. Hargrove—to get out of the truck. Mr. Hargrove complied.
    There was also a third person in the truck, in the back seat on the passenger’s
    side, who the agents had not originally seen. This man, later identified as Mr.
    Silvas-Hinojos, also exited the truck. The agents believed that Mr. Silvas-
    Hinojos was the seventh backpacker.
    After the three occupants exited the truck, an agent noticed a bundle of
    marijuana lying in the center of the truck’s back seat. Agents also found and
    seized more bundles of marijuana in the bed of the truck; these bundles were
    partially covered by a tarp. The government later learned (through the
    cooperation of Mr. Silvas-Hinojos) that Mr. Hargrove had received the bundles of
    marijuana from the backpackers and strapped them down in the bed of his truck.
    In total, the agents seized approximately 297 pounds of marijuana from the truck.
    When Mr. Hargrove exited the truck, an agent patted him down and found
    two knives on his person. After another agent noticed a rifle in the truck’s back
    seat, Mr. Hargrove told the agents that he had “two weapons inside the vehicle,”
    including the rifle. Id. at 263. The second firearm, a pistol, was found on the
    truck’s dashboard inside a bag bearing an Oakland Raiders emblem. At the time
    of these events, Ms. Richter was wearing a jacket with an Oakland Raiders
    4
    emblem that matched the one on the bag containing the pistol. Mr. Hargrove, Ms.
    Richter, and all of the backpackers were arrested.
    After his arrest, Mr. Hargrove again “admitted the loaded rifle and pistol
    found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5 (Presentence
    Investigation Report (“PSR”), dated Jan. 26, 2017). The agents asked Mr.
    Hargrove about the bundles of marijuana they had found in his truck, and he told
    the agents that he believed the bundles were alfalfa, not marijuana, and that he
    was simply in the area to go fishing.
    B
    Mr. Hargrove was charged with two counts: (1) conspiracy to distribute
    more than 100 kilograms of marijuana in violation of 
    21 U.S.C. § 846
    ; and (2)
    possession with the intent to distribute 100 kilograms or more of a mixture and
    substance containing a detectable amount of marijuana, and aiding and abetting
    said possession, in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B), and 
    18 U.S.C. § 2
    . Ms. Richter and two of the backpackers were charged with similar crimes,
    but these three pleaded guilty pursuant to plea agreements. Mr. Hargrove
    proceeded to trial.
    1
    Prior to trial, Mr. Hargrove filed a motion in limine requesting that the
    district court exclude all evidence regarding firearms or knives, including “all
    purported testimony [that] one of the firearms [was] stolen.” Suppl. R. at 12–14
    5
    (Mr. Hargrove’s Mot. in Lim., dated Oct. 10, 2016). This motion contended that
    “the possession of the firearms was simply part of his property” and that Mr.
    “Hargrove made no attempt to hide or distance himself from the firearms,” and it
    argued, among other things, that admitting evidence that one of the firearms was
    stolen would be unduly prejudicial. 
    Id.
     at 13–14.
    The district court resolved this motion in a written order. It reasoned that
    “[t]he presence of loaded firearms that Defendant admitted belong to him, and
    their location in the cab of the truck[,] is probative of Defendant’s knowledge and
    of his agreement to participate in a drug trafficking scheme.” 
    Id. at 18
     (Mem. Op.
    and Order, dated Oct. 14, 2016). The court further ruled that the probative value
    of this evidence was not substantially outweighed by potential prejudice; thus, the
    evidence was admissible. But the court adopted a contrary stance regarding the
    stolen nature of one of the firearms, concluding that “the fact that one of the
    firearms was stolen is not particularly probative of any fact at issue.” 
    Id.
    Consequently, the court found this evidence to be inadmissible, as the risk of
    prejudice substantially outweighed any conceivable relevance. Thus, the court
    granted the motion in part, excluding any testimony concerning the stolen nature
    of one of the firearms but allowing testimony about the presence of loaded
    firearms in the truck.
    At trial, Mr. Hargrove’s strategy was to raise doubt regarding whether he
    knew of the drug-trafficking activity and knowingly agreed to participate in it.
    6
    Specifically, during opening statements, Mr. Hargrove’s counsel told the jury that
    Ms. Richter “arranged this marijuana deal,” R., Vol. III, at 202, that she had
    asked to borrow Mr. Hargrove’s vehicle, 
    id.,
     that she told Mr. Hargrove that they
    were going to “camp out” at a fishing hole and “hang out for a few days,” 
    id.
     at
    202–03, and that Mr. Hargrove—without any knowledge of the planned drug-
    trafficking activity—agreed to do that, 
    id. at 203
    .
    However, in eliciting testimony concerning the presence of loaded firearms
    in order to undermine this defense, as authorized by the district court, the
    prosecution strayed into forbidden territory. In response to the prosecutor’s
    questions, a Border Patrol agent testified that one of the firearms had been stolen:
    Q.    Agent [], is this -- are these the two individuals that you
    arrested that night?
    A.    Yes sir.
    Q.    And you notice [Ms. Richter] has also an Oakland Raiders
    decal on her jacket?
    A.    Yes, yes, sir.
    Q.    Is that basically what the bag was like also with where the
    gun was?
    A.    Yeah, it was a black bag with an Oakland Raiders emblem
    on it.
    Q.    And the defendant, though, was the one that told you
    where the gun was?
    A.    Yes, sir.
    Q.    Did you ever ascertain ownership of that gun?
    A.    No, sir.
    ....
    Q.    Did you eventually ascertain ownership of the gun?
    A.    I ran records checks on both weapons and the truck, yes,
    sir.
    Q.    And to whom did it come back to?
    A.    The truck came back to the defendant. The rifle came
    7
    back as a clear weapon and the pistol came back as stolen.
    
    Id.
     at 264–65 (emphasis added).
    Mr. Hargrove’s counsel objected and immediately moved for a mistrial,
    arguing that the testimony about the stolen gun could not be “cure[d] with an
    instruction.” 
    Id. at 265
    . The district court held a hearing on the issue outside of
    the jury’s presence. The court first asked the agent if he had been instructed not
    to testify about the stolen nature of the gun. The agent answered that he had been
    informed to disregard the fact that the gun was stolen, but “misunderstood the
    question” and stated that he did not “know how to answer [the question] without
    . . . not telling the truth.” 
    Id. at 268
    . The prosecutor admitted “it’s my fault,”
    conceding that he did not “frame the question correctly.” 
    Id.
     Accordingly, the
    court concluded that the error lay with the prosecutor and that the agent was not
    to blame for the utterance. The court subsequently took the motion for a mistrial
    under advisement. See 
    id. at 269
     (“[T]his is how I’m going to play it: I am going
    to take under advisement the motion to mistrial. I’m going to instruct the jury
    when they get back that they are to completely disregard the answer. And then
    I’m going to see how the testimony proceeds and -- well, we’ll see where it
    goes.”).
    The court called the jury back into the courtroom and gave the following
    instruction:
    Ladies and gentlemen, in the preliminary instruction this
    8
    morning, I told you that if, at some point in the trial, I told you
    to disregard something that you heard, then you couldn’t consider
    that matter in your deliberations later in the trial. Well, that’s
    happened. So right before you left for your break, there was a
    statement made by the agent that one of the firearms may have
    been stolen. The stolen nature of those firearms is not at issue in
    this case. That is not something that you need to consider. In
    fact, I’m going to ask you and expect you to disregard anything
    regarding that firearm or its ownership. That’s not something
    you need to concern yourself with in this trial.
    And as we talked this morning, what’s before you are the two
    charges, conspiracy and possession with intent on the marijuana.
    There isn’t any charge related to firearms, their ownership, and
    it would be inappropriate for you to consider those facts in
    addressing the facts that are actually in front of you and the
    elements of the charges that are actually in front of you. So
    please disregard any thought or connection relating to the
    ownership of that firearm.
    
    Id.
     at 284–85 (emphases added). Following that instruction, the trial resumed and
    the prosecutor quickly finished his cross-examination of the agent.
    Moreover, the prosecutor took remedial measures during the remainder of
    the trial: specifically, the prosecutor (1) withdrew an exhibit displaying all
    weapons retrieved from the truck, see 
    id. at 25
     (“[T]he government would not
    oppose removing [Government’s Exhibit Number 15, i.e., a photo of the guns and
    knives] if it will help alleviate some of the damage that was done. So since the
    jury hasn’t seen it, the government, without objection from defense, will
    withdraw that exhibit.”); (2) did not seek testimony from its expert witness
    regarding the use of firearms in the narcotics trade, even though it had filed a
    notice with the court regarding expert testimony in this area; and (3) did not
    9
    discuss either of the guns during its closing argument.
    After the close of all of the evidence but prior to closing arguments, the
    district court denied the motion for mistrial, concluding that the prosecutor’s
    violation of the court’s ruling was not “intentional” but rather “was a mistake . . .
    caused by an inartfully asked question.” 
    Id. at 138
    . The court further concluded
    that, in light of all of the evidence, the improper testimony was not
    “consequential.” 
    Id.
     The defense renewed its objection after the court’s ruling
    but seemed to agree that the prosecutor had not acted in bad faith in eliciting the
    testimony. 
    Id. at 139
     (“Obviously, I don’t think the issue of whether it was in bad
    faith or not is really at issue here. What’s at issue is the prejudice of the exact
    nature of the testimony that was specifically excluded that came in. And it is of
    such nature that the only fair remedy to this proceeding would be to declare a
    mistrial.”).
    Then, after the closing arguments, the court again instructed the jury:
    During the trial, I didn’t let you hear answers to some of the
    questions that the lawyers asked and sometimes I ordered you to
    disregard things you saw or heard or I struck things from the
    record. You must completely ignore all of those things. Don’t
    even think about them. Don’t speculate about what a witness
    might have said. These things are not evidence and you’re bound
    by your oath not to let them influence your decision in any way.
    
    Id. at 144
    . After approximately one hour of deliberation, the jury found Mr.
    Hargrove guilty on both counts.
    2
    10
    Following Mr. Hargrove’s conviction, the U.S. Probation Office prepared a
    PSR noting that the mandatory-minimum sentence was sixty months’
    imprisonment and computing an advisory Guidelines sentencing range of sixty to
    sixty-three months’ imprisonment. 
    Id.,
     Vol. II, at 1–15 (PSR, dated Jan. 26,
    2017). 2
    In his Sentencing Memorandum and Objections to the PSR, Mr. Hargrove
    argued that he qualified for the safety valve under U.S.S.G. § 5C1.2 and,
    therefore, his sentence should have been calculated without regard to the
    otherwise-applicable mandatory minimum. 3 See id., Vol. I, at 40–42
    2
    The Probation Office used the 2016 edition of the Guidelines in
    calculating Mr. Hargrove’s sentence. Neither party questions this choice on
    appeal; therefore, we also rely on the 2016 edition, to the extent that it is relevant
    to the resolution of the issues on appeal.
    3
    The Guidelines safety-valve provision (i.e., § 5C1.2) traces back to a
    statutory safety-valve provision that Congress had enacted, 
    18 U.S.C. § 3553
    (f);
    this provision permits a district court to disregard the otherwise applicable
    statutory mandatory minimum and to sentence a defendant in accordance with the
    advisory Guidelines and the sentencing factors of 
    18 U.S.C. § 3553
    (a). See, e.g.,
    United States v. Smart, 
    518 F.3d 800
    , 803 (10th Cir. 2008) (“Section 3553(a)
    mandates consideration of its enumerated factors . . . .”); United States v.
    Altamirano-Quintero, 
    511 F.3d 1087
    , 1091 (10th Cir. 2007) (noting that the
    statutory safety-valve provision “permits the district court to disregard a statutory
    mandatory minimum sentence and instead impose a sentence within the advisory
    sentencing guidelines range”); United States v. Acosta-Olivas, 
    71 F.3d 375
    , 379
    (10th Cir. 1995) (“In sum, § 3553(f), as repeated in guideline [U.S.S.G.] § 5C1.2,
    was clearly intended to permit courts to sentence relatively less culpable
    offenders to sentences below an otherwise applicable mandatory statutory
    minimum sentence.”). In U.S.S.G. § 5C1.2, not only has the Sentencing
    Commission “set[] forth the relevant provisions” of § 3553(f), but it also “has
    promulgated application notes to provide guidance in the application of the
    (continued...)
    11
    (Sentencing Mem. & Objs. to PSR, dated Apr. 24, 2017). In particular, Mr.
    Hargrove disputed whether he had “possess[ed] a firearm or other dangerous
    weapon . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2). Mr.
    Hargrove asserted that there was no evidence that the firearms’ presence “had
    anything to do with the marijuana transaction”; consequently, Mr. Hargrove
    reasoned that he was eligible for safety-valve relief under § 5C1.2. R., Vol. I, at
    41. After making other arguments for the application of reductions and a
    variance, Mr. Hargrove requested a sentence of eighteen months’ imprisonment.
    During the first of two sentencing hearings, Mr. Hargrove’s counsel argued
    that the transaction resulting in his arrest was not a “typical drug situation” that
    was “real dangerous” because money was not exchanged between the backpackers
    and the individual picking up the drugs. Id., Vol. III, at 7 (Sentencing Hr’g Tr.,
    dated May 4, 2017). He thus reasoned that Mr. Hargrove would not have needed
    to bring a firearm for protection. The district court rejected this argument, noting
    3
    (...continued)
    statute.” U.S.S.G. § 5C1.2, cmt. background. Mr. Hargrove’s safety-valve
    argument before the district court was consistently framed in terms of the
    Guidelines provision, § 5C1.2. Though his opening brief is sprinkled with several
    citations to the statutory safety-valve provision, § 3553(f), Mr. Hargrove also
    primarily invokes the rubric of § 5C1.2 in stating his appellate challenge. Aplt.’s
    Opening Br. at 1 (stating the issue for review as whether “Mr. Hargrove
    possess[ed] a firearm in connection with the offenses of which he was convicted,
    such that he was ineligible for the safety valve under [U.S.S.G.] § 5C1.2?”).
    Given that the Guidelines safety-valve provision restates verbatim the relevant
    text of the statutory safety-valve provision, Mr. Hargrove’s litigation decision on
    this point is of no moment in our analysis.
    12
    that “[i]f I’m going to my first big drug deal in Rodeo -- in a farm outside Rodeo,
    New Mexico, in the dark of the night with a bunch of guys, backpackers, coming
    over the hill, I might think I needed to be protected.” Id. at 8. Mr. Hargrove’s
    counsel also argued that the weapons were unrelated to the offense, as many
    individuals in remote areas carry weapons because of “snakes,” “varmints,” and
    “things of that nature.” Id. at 9. The court, however, expressed skepticism,
    questioning “[h]ow many of those [weapons used as protection against animals]
    [we]re stolen,” like one of Mr. Hargrove’s guns. Id. Because of the potential for
    a “big swing” based on the application vel non of the safety valve, the court
    recessed for further research on how to treat the firearms. Id. at 16.
    In a written order, the district court denied Mr. Hargrove safety-valve
    relief. Specifically, the district court stated: “The only question at issue is
    whether [Mr. Hargrove] possessed the firearms ‘in connection with the offense.’”
    Id., Vol. I, at 23 (Mem. Op. and Order, dated May 25, 2017) (quoting 
    18 U.S.C. § 3553
    (f)). The district court recited the relevant facts: Mr. Hargrove and both
    guns were found in the cab of the truck, and most of the marijuana was found
    close by in the truck’s bed; both guns were loaded; and Mr. Hargrove evinced
    knowledge of the location of the guns by voluntarily telling the agents about
    them. The district court concluded that “[b]oth [the] proximity and the potential
    [of the weapons] to facilitate the offense” established that the weapons were
    possessed “in connection with the offense.” 
    Id.
     at 23–24. The court further
    13
    reasoned that “[e]ven if the firearms did not directly facilitate the drug
    transaction, they certainly had the potential to do so.” 
    Id. at 24
    . The court
    concluded: “Under these circumstances, Defendant has not met his burden by a
    preponderance of the evidence to demonstrate eligibility for the safety valve.
    Thus, Defendant is subject to the statutory mandatory minimum sentence of 60
    months.” 
    Id.
    The court then held a second sentencing hearing. During his allocution,
    Mr. Hargrove stated: “I had my guns with me ‘cause I was going to work and I
    might come across a rattlesnake.” 
    Id.,
     Vol. III, at 324 (Sentencing Hr’g Tr., dated
    June 7, 2017). He further stated that at the time of his arrest he “was four and a
    half feet away from [his] weapon.” 
    Id. at 327
    . The district court subsequently
    sentenced Mr. Hargrove to sixty months’ imprisonment, the applicable
    mandatory-minimum sentence. Mr. Hargrove now appeals.
    II
    We are presented with two issues in this appeal: (1) whether the district
    court erred in failing to grant Mr. Hargrove’s motion for a mistrial after the
    Border Patrol agent testified about the stolen nature of Mr. Hargrove’s pistol, and
    (2) whether the district court erred in failing to grant Mr. Hargrove safety-valve
    relief under U.S.S.G. § 5C1.2. Because we conclude that the district court did not
    err with respect to either issue, we affirm the court’s judgment as to Mr.
    Hargrove’s conviction and sentence.
    14
    A
    We first address Mr. Hargrove’s assertion that the district court erred by
    denying his motion for a mistrial after the Border Patrol agent testified that the
    pistol in Mr. Hargrove’s car was stolen, in direct contravention of the district
    court’s ruling in limine. As discussed below, we conclude that Mr. Hargrove’s
    arguments in support of this assertion are unavailing.
    “We review a district court’s refusal to grant a mistrial for abuse of
    discretion. The district court has discretion to grant a mistrial only when a
    defendant’s right to a fair and impartial trial has been impaired.” United States v.
    Meridyth, 
    364 F.3d 1181
    , 1183 (10th Cir. 2004) (citation omitted). “This calculus
    calls for ‘an examination of the prejudicial impact of an error . . . viewed in the
    context of an entire case.’” United States v. Wells, 
    739 F.3d 511
    , 532 (10th Cir.
    2014) (quoting Meridyth, 
    364 F.3d at 1183
    ). “While there are ‘cases where the
    prejudicial effect cannot be erased because the evidence is of such a nature that it
    necessarily interferes with the jury’s impartial consideration of other evidence,’
    ‘[t]he general rule is that the effect of improper evidence may be remedied by
    admonishing the jury to disregard and by withdrawing the evidence.’” Id. at 533
    (alteration in original) (quoting United States v. Laymon, 
    621 F.2d 1051
    , 1053
    (10th Cir. 1980)).
    “Under the abuse of discretion standard, a trial court’s decision will not be
    disturbed unless the appellate court has a definite and firm conviction that the
    15
    lower court has made a clear error of judgment or exceeded the bounds of
    permissible choice in the circumstances.” United States v. Chanthadara, 
    230 F.3d 1237
    , 1248 (10th Cir. 2000) (quoting United States v. Thompson, 
    908 F.2d 648
    ,
    650 (10th Cir. 1990)). Or, put another way, “[w]e will not disturb a district
    court’s decision to deny a motion for a mistrial unless the decision ‘was based on
    a clearly erroneous finding of fact or an erroneous conclusion of law or manifests
    a clear error of judgment.’” United States v. Templeman, 
    481 F.3d 1263
    , 1265
    (10th Cir. 2007) (quoting United States v. Stiger, 
    413 F.3d 1185
    , 1194 (10th Cir.
    2005), abrogated in part on other grounds by Alleyne v. United States, 
    570 U.S. 99
    , 108 (2013)).
    In determining whether a mistrial is necessary “where the prosecutor asked
    a question her witness answered in a potentially improper way,” the
    nonexhaustive set of factors that we consider “include”: (1) whether the
    prosecutor acted in bad faith, (2) whether the district court limited the effect of
    the improper statement through its instructions to the jury, and (3) whether the
    improper remark was inconsequential in light of the other evidence of the
    defendant’s guilt. Meridyth, 
    364 F.3d at 1183
    . Here, all three factors weigh in
    favor of affirming the district court’s decision.
    1
    The parties first dispute whether the prosecutor acted in bad faith in
    eliciting the Border Patrol agent’s improper testimony about the stolen gun. The
    16
    district court found no bad faith by the prosecutor, specifically ruling that the
    prosecutor did not act in an “intentional” manner in eliciting the improper
    testimony but, rather, made “a mistake,” and that the testimony was “caused by an
    inartfully asked question.” R., Vol. III, at 138. We conclude that the district
    court’s assessment was firmly grounded in the record evidence and legally sound.
    We primarily rest our conclusion on two variables that our caselaw has
    deemed to be significant in the bad-faith inquiry. 4 First, we have inquired
    whether “the prosecutor . . . intentionally elicit[ed] the statement in question.”
    Meridyth, 
    364 F.3d at 1184
    ; see United States v. Kamahele, 
    748 F.3d 984
    , 1017
    (10th Cir. 2014) (discerning no bad faith in part because “[t]he mistake
    appear[ed] to be innocent”). And, second, we have noted whether the prosecutor
    acknowledged the improper character of the testimony and took steps to mitigate
    its prejudicial effects. See Wells, 739 F.3d at 533 (affirming denial of a motion
    4
    During oral argument on the motion for mistrial before the district
    court, Mr. Hargrove’s trial counsel seemed to concede that the prosecutor did not
    act in bad faith. See R., Vol. III, at 139 (“Obviously, I don’t think the issue of
    whether it was in bad faith or not is really at issue here. What’s at issue is the
    prejudice of the exact nature of the testimony that was specifically excluded that
    came in.”). The government acknowledges this apparent concession here but does
    not argue that it is dispositive. See Aplee.’s Resp. Br. at 24 (“Contrary to
    Hargrove’s assertion of bad faith on appeal, as Hargrove’s trial counsel
    acknowledged and as the district court found, the government did not act in bad
    faith in asking the questions that it did.”). In light of the government’s approach,
    we are content to accord the apparent concession of Mr. Hargrove’s counsel on
    the bad-faith issue little weight in our analysis, though it is not irrelevant. It is
    simply noteworthy in passing that Mr. Hargrove’s trial counsel, who saw the
    prosecutor’s questioning of the agent in real time—just as the trial judge did—did
    not at that time view the prosecution’s conduct as evidencing bad faith.
    17
    for mistrial in part because the “prosecutor attempted to change the subject
    immediately after” the inappropriate testimony); cf. Meridyth, 
    364 F.3d at 1184
    (noting that the prosecutor’s failure to fully acknowledge the improper nature of
    the testimony “somewhat belied” her “ostensibly innocent explanation” for
    eliciting the testimony).
    Turning to the first variable, though it is undisputed that the prosecutor’s
    questions elicited the improper, stolen-gun testimony, the district court did not
    clearly err in finding that the prosecutor did so inadvertently (i.e., by mistake),
    not with bad intent. See Meridyth, 
    364 F.3d at 1184
    . The Border Patrol agent
    stated that the prosecutor told him not to testify about the stolen nature of the
    gun. See R., Vol. III, at 268. The fact that the prosecutor specifically instructed
    the agent not to testify about the stolen nature of the gun significantly undermines
    any notion that the prosecutor’s intent was to put the improper testimony before
    the jury. See Kamahele, 748 F.3d at 1017 (concluding that the prosecutor’s
    “mistake appear[ed] to be innocent [because] the prosecutor informed the district
    court that she had previously instructed the witness not to discuss” the improper
    testimony).
    In response, Mr. Hargrove points to the fact—ostensibly suggestive of ill
    intent—that the prosecutor repeatedly inquired about the ownership of the gun
    before the agent uttered the improper testimony. But, at least under the
    circumstances here, this tells us virtually nothing about whether the prosecutor
    18
    acted with bad intent or was simply careless and persistently so.
    And, in this factual setting, we view the second variable—the prosecutor’s
    conduct in acknowledging the improper character of the testimony and taking
    steps to mitigate its prejudicial effects—as strongly indicating that the prosecutor
    did not act in bad faith. First, in the immediate aftermath of the improper
    testimony, the prosecutor admitted that his questioning was unclear and that he
    was at fault for causing the testimony to be uttered. See R., Vol. III, at 268 (“I
    think it’s my fault because I didn’t ask [the pertinent questions] clear[ly] enough.
    But I didn’t intend to violate the order. I just didn’t -- I didn’t frame the question
    correctly.”). This immediate acceptance of responsibility—while certainly not
    dispositive—provides some support for the conclusion that “the prosecutor did
    not intentionally elicit the statement in question.” Meridyth, 
    364 F.3d at 1184
    .
    Indeed, the prosecutor’s conduct here contrasts markedly with the prosecutor’s
    conduct in Meridyth. There, instead of immediately accepting responsibility for
    adducing the improper testimony, the prosecutor spent much of her “response to
    the motion for a mistrial” trying to convince the court that there actually was an
    evidentiary basis for the introduction of the testimony; the prosecutor could
    reasonably be understood from this line of argument as saying that, even if she did
    intend to adduce the testimony, her conduct would not have been improper. 
    Id.
    We concluded in Meridyth that the prosecutor’s approach “somewhat belied” her
    “ostensibly innocent explanation,” which was based on the view that she did not
    19
    actually intend to adduce the testimony. 
    Id.
     In short, the prosecutor’s immediate
    acceptance of responsibility here is significantly probative of the prosecutor’s
    lack of bad faith.
    We view in a similar light the prosecutor’s efforts to mitigate the
    prejudicial effects of the improper testimony throughout the remainder of the
    trial. Once he resumed the examination of the agent (i.e., following the improper
    utterance), the prosecutor immediately veered his questioning away from the
    stolen gun and began inquiring about other issues; he thereafter quickly ended his
    examination of the agent:
    Q.    Agent [], did you find any binoculars in the vehicle?
    A.    There was a set of night-vision goggles inside the vehicle.
    Q.    Where in the vehicle were they?
    A.    I don’t recall. I did not locate them, myself.
    [Prosecutor]: I’ll pass the witness, Your Honor.
    R., Vol. III, at 285. Such a dramatic shift supports the district court’s finding that
    the prosecutor did not intend to put the improper testimony before the jury in the
    first place. See Wells, 739 F.3d at 533. Furthermore, moving past the immediate
    aftermath of the improper testimony, the prosecution went to great lengths to limit
    any damage caused by the testimony by taking the following steps: (1)
    withdrawing an exhibit that displayed all of the weapons retrieved from the truck;
    (2) forgoing testimony from its expert witness regarding the use of firearms by
    drug traffickers to safeguard their narcotics loads, even though it had given notice
    of expert testimony to this effect; and (3) avoiding any discussion of the guns
    20
    during its closing argument. In sum, the prosecutor’s actions—both immediately
    after eliciting the improper testimony and throughout the remainder of the
    trial—clearly evince a strong intent to mitigate any prejudicial effects of the
    improper testimony, rather than an intent to highlight or cement such effects.
    Such remedial efforts strongly suggest that the prosecution did not intend to elicit
    the improper testimony to begin with.
    To be sure, we noted in Meridyth that one of the “helpful” inquiries
    “subsumed within the ‘bad faith’ factor” is whether the prosecutor’s “line of
    questioning was reasonable.” 
    364 F.3d at
    1183 n.3. Mr. Hargrove underscores
    this point, arguing that “there was no reason for this [i.e., the prosecutor’s] line of
    questioning” and that “the line of questioning was wholly unreasonable.” Aplt.’s
    Opening Br. at 27–28. In response, the government contends that the prosecutor’s
    questioning was designed (albeit inartfully) to establish that Mr. Hargrove had
    claimed ownership of the firearms, in order (1) to show that he was aware of the
    drug transaction that was going on, and (2) to avoid the jury drawing an incorrect
    inference from the testimony that immediately preceded the ownership line of
    questioning—that is, testimony about Ms. Richter wearing an Oakland Raiders
    jacket with an emblem that matched the one on the Oakland Raiders bag
    containing the pistol. More specifically, the government contends that the
    prosecutor apparently reasoned that “the jury could have inferred [wrongly from
    the fact that the bag displayed the same Oakland Raiders emblem as Ms. Richter’s
    21
    jacket] that it was Richter’s bag and Richter’s firearm, even though Hargrove was
    aware of the location of the firearm.” Aplee.’s Resp. Br. at 20. Accordingly, the
    government argues that the testimony was relevant to undermine Mr. Hargrove’s
    defense theory that Ms. Richter planned the entire event and that he agreed to go
    along on the trip with lawful purposes in mind, without knowledge of the drug-
    trafficking activity.
    On this specific point, however, we are not persuaded by the government’s
    argument. Recall that, among other things, the prosecutor asked the agent with
    respect to the pistol: “Did you ever ascertain ownership of that gun?” and “[T]o
    whom did it come back to?” R., Vol. III, at 264–65. Under these circumstances,
    we are hard-pressed to discern the relevancy of any testimony regarding the legal
    ownership of the pistol. Indeed, if the prosecutor just wanted to establish for the
    jury that it was Mr. Hargrove—not Ms. Richter—who possessed the pistol and
    brought it to the drug transaction (with the attendant inference that Mr. Hargrove
    knew drug-trafficking activity was going on and needed the firearm to protect it),
    the prosecutor could have simply asked the agent if he knew whether anyone laid
    claim to the pistol during the arrests and investigation of the crime. And the
    agent almost certainly would have responded that Mr. Hargrove did so.
    Based on the foregoing, we therefore do not find the government’s
    argument regarding the reasonableness of its line of questioning persuasive.
    However, the prosecution can act unreasonably without acting in bad faith. Given
    22
    the totality of the circumstances here, we reject Mr. Hargrove’s suggestion that
    this one factor “weighs heavily in favor of a finding that the Government acted in
    bad faith.” Aplt.’s Opening Br. at 28. As noted, the district court’s finding that
    the prosecutor elicited the improper testimony through inadvertence—rather than
    intentionally—is firmly supported by the record, and the prosecutor’s conduct in
    promptly acknowledging the improper character of the testimony and taking steps
    to mitigate its prejudicial effects strongly supports the conclusion that the
    prosecutor did not act at the outset in bad faith in eliciting the improper
    testimony. In light of these circumstances, we feel confident in rejecting any
    suggestion that the prosecutor’s questioning amounted to “a gratuitous attempt to
    improperly influence the jury” through placing improper testimony before it about
    the stolen nature of the pistol. Meridyth, 
    364 F.3d at 1184
    . More generally,
    considering all of the circumstances, we conclude that the prosecutor did not act
    in bad faith, and that this criterion weighs heavily in the government’s favor.
    2
    We next consider whether the district court’s instructions following the
    testimony about the stolen gun “limited the effect of the improper statement . . .
    to the jury.” Meridyth, 
    364 F.3d at 1183
    . We conclude that this factor also
    weighs heavily in the government’s favor.
    We presume that jurors “follow their instructions.” 
    Id. at 1184
    ; United
    States v. Lamy, 
    521 F.3d 1257
    , 1266 (10th Cir. 2008) (“We presume that jurors
    23
    will follow clear instructions to disregard evidence . . . .” (quoting United States
    v. Caballero, 
    277 F.3d 1235
    , 1243 (10th Cir. 2002))). However, this presumption
    may be overcome: “[W]here the character of the testimony is such that it will
    create so strong an impression on the minds of the jurors that they will be unable
    to disregard it in their consideration of the case, although admonished to do so, a
    mistrial should be ordered.” Maestas v. United States, 
    341 F.2d 493
    , 496 (10th
    Cir. 1965); see also Lamy, 
    521 F.3d at 1266
     (noting that the presumption applies
    “unless there is an overwhelming probability that the jury will be unable to follow
    the court’s instructions, and a strong likelihood that the effect of the evidence
    would be devastating to the defendant” (quoting Caballero, 
    277 F.3d at 1243
    )).
    Mr. Hargrove contends that the agent’s improper testimony made the “sort
    of strong impression” described in Maestas, Aplt.’s Opening Br. at 31, but his
    assertions on this issue are entirely conclusory. He vaguely references his
    opening brief’s “discussion of the third factor” (i.e., of whether the agent’s
    testimony was inconsequential), 
    id.,
     without ever mentioning what components of
    this discussion are relevant under Maestas. Indeed, he never again mentions
    Maestas, nor does he discuss its facts or analyze what “character of . . .
    testimony” is necessary to give rise to the kind of “strong impression” that a jury
    might be unable to disregard. Maestas, 
    341 F.2d at 496
    . Therefore, we view Mr.
    Hargrove’s contention as waived. See, e.g., United States v. Pursley, 
    577 F.3d 1204
    , 1231 n.17 (10th Cir. 2009) (noting that a “skeletal reference does not
    24
    present a cognizable issue for appellate review”); accord United States v. Gordon,
    
    710 F.3d 1124
    , 1144 n.22 (10th Cir. 2013). And we properly turn our attention to
    assessing the import of the district court’s instructions, which we presume the
    jury followed.
    As noted above, the district court gave two limiting instructions, one
    directly in the wake of the improper testimony and one after the close of
    evidence. In brief, in its instructions, the court told the jury both (1) to disregard
    the specific testimony about the stolen nature of the pistol, and (2) to completely
    ignore any and all inferences regarding the pistol—with the clear aim of giving
    the agent’s testimony no influence in the jury’s decision-making. In other words,
    the court effectively instructed the jurors to act as if they had never heard the
    stolen-gun testimony and to avoid thinking about that testimony.
    Despite the seeming clarity of those instructions, Mr. Hargrove asserts that
    the district court’s approach was inadequate because the court did not
    “specifically and expressly indicate[]” that the jury should not reach the
    “potential conclusion” that “by virtue of possessing a stolen gun, Mr. Hargrove’s
    character was that of a criminal and he had a propensity to commit criminal acts.”
    Aplt.’s Opening Br. at 29. He further contends that the court should have “also
    specifically instruct[ed] the jury to refrain from considering the evidence as proof
    of [his] criminal propensity.” Aplt.’s Reply Br. at 8. In support of his position,
    Mr. Hargrove cites to both Meridyth and United States v. Hardwell, 
    80 F.3d 1471
    25
    (10th Cir.), modified in part on reh’g, 
    88 F.3d 897
     (10th Cir. 1996). However,
    neither of those cases supports his position.
    More specifically, Mr. Hargrove argues that the district court’s instructions
    in this case were “confusing and not particular enough” when compared to the
    district court’s instructions in Meridyth because they did not specify which
    inference the jury could not make—viz., it could not infer from the stolen nature
    of the gun that Mr. Hargrove had a propensity towards crime. Aplt.’s Opening
    Br. at 29. In Meridyth, the panel observed that, after testimony was elicited from
    which the jury could have inferred that the defendant threatened a witness, the
    district court “took great pains to instruct the jury not to infer” that such a threat
    had taken place and that the effect of such instructions “in th[at] case” was to
    “preclude the improper inference” of the threat. 5 Meridyth, 
    364 F.3d at 1184
    .
    5
    To provide helpful context, we reproduce below the salient aspects of
    the district court’s instructions quoted in Meridyth:
    After an exhaustive discussion with counsel and my own
    examination of this witness out of your hearing, I have
    determined a couple of things.
    First, it appears that the United States Attorney asked the
    question regarding why this witness moved to, in part, explain
    why the United States Government, through the United States
    Attorney’s Office, has provided $1000 in assistance for this
    individual to move. You will recall that the witness said he
    moved because of threats made against him.
    In part, an inference that you could draw from that statement was
    that the threats were made by [a co-defendant] and Mr. Meridyth.
    (continued...)
    26
    Juxtaposed with the Meridyth court’s specific instructions, Mr. Hargrove
    maintains, the district court’s instructions here were inadequate. We disagree.
    The district court’s instructions here actually had a broader prophylactic
    scope than the ones in Meridyth; they necessarily reached not only the specific
    inference relating to the stolen-gun that concerned Mr. Hargrove—i.e., the
    inference that he possessed a criminal propensity—but each and every other
    inference relating to the testimony about the gun. Recall that the court explicitly
    and unequivocally instructed the jury to “to disregard anything regarding that
    firearm or its ownership.” R., Vol. III, at 284 (emphasis added). Anything means
    anything. More specifically, anything would include any criminal-propensity
    inferences stemming from the stolen nature of the gun. Moreover, the court did
    not take any chances that the jury might not comprehend its all-encompassing
    instructions that the jury should put out of mind any inferences related to the
    5
    (...continued)
    I am telling you now that that would be an improper inference,
    based on all of the information I now know. You will recall that
    this witness was working on at least 40 cases with the drug task
    force. That gives this witness ample opportunity to make a lot of
    enemies.
    While I have no reason to doubt that—the likelihood that what
    motivated him to move were threats, it can’t be said, based on
    any credible evidence now known to the Court that those threats
    can be connected to these defendants. And you may not infer that
    they do, based on the evidence we now have.
    
    364 F.3d at
    1182–83 (quoting the record).
    27
    stolen firearm—including possible inferences regarding Mr. Hargrove’s criminal
    propensities. The court expressly and specifically emphasized that the jury was
    not to consider “a statement made by the agent that one of the firearms may have
    been stolen.” 
    Id.
     Thus, based on the court’s instructions, we presume the jury
    understood that it was obliged not to consider any inferences based on the
    testimony about the stolen firearm; this would necessarily include an inference
    that Mr. Hargrove possessed a criminal propensity because the pistol was stolen. 6
    Mr. Hargrove’s only retort to this seems to be that the instructions were
    “confusing” because they “appear[ed] to only indicate that the testimony . . .
    could not be used to find Mr. Hargrove guilty of the charged offenses.” Aplt.’s
    Opening Br. at 29. Mr. Hargrove is correct that the court’s instructions
    6
    Our decision in Wells, moreover, underscores the adequacy of the
    court’s instructions. There, the subject of the defendant’s motion for mistrial was
    a witness’s improper testimony that prior to trial the defendant had been offered
    “a plea offer” (which he presumably rejected). 739 F.3d at 532. In upholding the
    district court’s denial of the motion, we observed that the court’s “curative
    instruction . . . was ‘clear and concise and pertained to testimonial evidence from
    a single witness that was amenable to easy segregation in the minds of the jury.’”
    Id. at 533 (quoting Caballero, 
    277 F.3d at 1243
    ). Yet, that instruction simply
    stated: “Ladies and gentlemen, disregard that last answer. I’ll strike it from the
    record. We’re getting into an area that’s not proper for jury consideration.” Id. at
    532. Recognizing (as we do) that the adequacy of instructions must be
    understood in light of all of the circumstances of a particular case, it nevertheless
    would strain credulity to believe that, after endorsing this brief curative
    instruction in Wells, this court should conclude here that the district court’s
    broadly protective instructions—that obliged the jury to completely disregard the
    stolen-gun testimony and any inferences related to it—were not sufficiently clear
    or otherwise adequate to cure any prejudice. Notably, Mr. Hargrove’s reply brief
    does not respond to the government’s similar argument based on Wells.
    28
    specifically cautioned the jury that the stolen-gun testimony was not relevant to
    its consideration of the charged crimes:
    [W]hat’s before you are the two charges, conspiracy and
    possession with intent on the marijuana. There isn’t any charge
    related to firearms, their ownership, and it would be
    inappropriate for you to consider those facts in addressing the
    facts that are actually in front of you and the elements of the
    charges that are actually in front of you.
    R., Vol. III, at 284. But in virtually the same breath the court spoke more
    broadly, saying “please disregard any thought or connection relating to the
    ownership of that firearm.” Id. at 284–85 (emphasis added). And this advisement
    must be read in the context of court’s earlier instructions to the jury, which made
    plain that it must “disregard anything regarding that firearm or its ownership.”
    Id. at 284 (emphasis added). Thus, the district court’s instructions here actually
    cast a wider protective net than the ones that we approved of in Meridyth.
    Captured within this net was precisely the concern that Mr. Hargrove points to
    here—viz., the concern that the jury might infer that he had criminal propensities
    from the stolen nature of the firearm. Taking all of these instructions into
    account, we are hard-pressed to understand how a reasonable jury could have not
    understood that, not only could it not consider the stolen-gun testimony in finding
    him guilty of the charged offenses, but it also could not use this testimony for any
    purpose. 7 In sum, Mr. Hargrove’s arguments based on the trial court’s
    7
    In any event, we question what material prejudice Mr. Hargrove
    (continued...)
    29
    instructions in Meridyth are unavailing.
    Lastly, Mr. Hargrove’s reliance on our decision in Hardwell is another
    wrong note in Mr. Hargrove’s tune of criminal-propensity error, which we may
    address in short order. Specifically, Mr. Hargrove turns to Hardwell to support
    his contention that the district court erred by not sua sponte specifically
    instructing the jury to disregard any inference arising from the stolen-gun
    testimony that Mr. Hargrove had a propensity to commit crimes. In this regard,
    quoting from Hardwell, 
    80 F.3d at 1491
    , Mr. Hargrove notes that we have
    “previously held that a district court committed error by failing to advise the jury
    . . . in a limiting instruction” that prior uncharged misconduct cannot be used as
    proof of criminal propensity. See Aplt.’s Opening Br. at 30 (quoting Hardwell’s
    observation that “the court’s instructions did not expressly advise the jury that it
    could not consider prior misconduct as proof of criminal disposition or
    propensity, which is what Rule 404(b) is intended to prevent”).
    However, Hardwell is inapposite: it expressly relates to a district court’s
    7
    (...continued)
    could claim even if the jury did feel free to infer from the stolen gun-testimony
    that he had criminal propensities, so long as it also felt obliged to honor the
    court’s instructions not to use this inference in determining whether he was guilty
    of the charged offenses. Put another way, even if the court’s instructions gave the
    jury the leeway (which they did not) to infer from the stolen-gun testimony that
    Mr. Hargrove had tendencies to be a scofflaw, it is hard to see how Mr. Hargrove
    could have been materially prejudiced by such an inference, if the jury stayed true
    to the court’s instructions and did not use this inference in determining his guilt
    of the charged offenses.
    30
    failure to employ appropriate limiting instructions in admitting prior wrongful-
    acts evidence under Federal Rule of Evidence 404(b), and on appeal “[a]ll four
    defendants contend[ed] the trial court abused its discretion by admitting evidence
    of prior bad acts” under that rule. 
    80 F.3d at 1488
    . The evidence before the jury
    was admissible for some purposes, but not others. 
    Id. at 1491
     (“[A]lthough it
    could consider the evidence of Dennis’ and Marcel’s prior misconduct as proof of
    the money laundering charge and 1992 cocaine sale charges, it could not consider
    that evidence as proof of the conspiracy, except to the extent that it proved
    intent.”). Here, on the other hand, the district court did not admit the disputed
    testimony for any purpose; it expressly excluded it. Therefore, there was no need
    for the court to even consider providing a more specific limiting instruction
    regarding the testimony, as in Hardwell. Under the district court’s instructions,
    the jury could not consider the stolen-gun testimony for any purpose—full stop.
    Hardwell is thus inapposite.
    Accordingly, because the district court’s instructions unequivocally
    admonished the jury that it could not consider the testimony or any inferences
    stemming from it, and because it is permissible to presume here that the jurors
    followed the court’s instructions, see Lamy, 
    521 F.3d at 1266
    , this factor weighs
    heavily in the government’s favor.
    3
    Finally, we consider whether the improper remark was inconsequential in
    31
    light of the other evidence of the defendant’s guilt. See Meridyth, 
    364 F.3d at 1183
    . This factor strongly undermines Mr. Hargrove’s position and, combined
    with the two other factors discussed above, firmly closes the door on his mistrial
    challenge.
    The crux of Mr. Hargrove’s argument is that the improper stolen-gun
    testimony “completely reframed the way the jury viewed [him],” Aplt.’s Opening
    Br. at 33, because “the jury would [have] likely view[ed] him as a ‘bad’ man, the
    kind of man that would [have been] involved in a scheme to possess and distribute
    marijuana – without regard to the actual evidence presented,” 
    id.
     at 32–33.
    However, the weight of the “actual evidence” against Mr. Hargrove—which
    undermined his defense theory that he had no knowledge of the drug-trafficking
    activity afoot—would have rendered any prejudice from the stolen-gun testimony
    inconsequential.
    Although the trial presented considerable evidence that pointed towards Mr.
    Hargrove’s guilt, we need not detail it all here. That is because, even standing
    alone, two lines of unchallenged evidence clearly incriminated Mr. Hargrove in
    the charged drug trafficking, and a reasonable jury could have concluded that this
    evidence convincingly belied Mr. Hargrove’s defense theory predicated on his
    unawareness of that activity. More specifically, without more, these two lines of
    evidence established that “nothing about [the Border Patrol agent’s improper]
    comment changed the basic nature of [Mr. Hargrove’s] trial.” United States v.
    32
    Kravchuk, 
    335 F.3d 1147
    , 1155 (10th Cir. 2003). 8
    First, and perhaps most damning, is the testimony from one of the
    backpackers, Mr. Silvas-Hinojos. During trial, Mr. Silvas-Hinojos testified that
    Mr. Hargrove himself met the backpackers when they arrived and personally took
    marijuana that Mr. Silvas-Hinojos was carrying; that Mr. Hargrove arranged the
    bundles of marijuana on the bed of the truck and covered the bundles with a tarp;
    and that Mr. Hargrove put one bundle of marijuana in the backseat of the truck
    because the stack of bundles in the truck bed was “too high.” R., Vol. III, at
    310–13. Significantly, Mr. Silvas-Hinojos’s testimony on these matters was left
    entirely without specific challenges during the course of the trial. As such, that
    undisputed testimony unequivocally indicated that Mr. Hargrove knew of and
    actively participated in the drug exchange, undercutting his defense theory and
    8
    In assessing the weight of the government’s evidence and the related
    effect of the agent’s improper stolen-gun testimony, we do not factor into the
    calculus the dubious testimony of Mr. Hargrove’s co-defendant, Ms. Richter. The
    government asserts that Ms. Richter’s testimony undermines Mr. Hargrove’s
    defense theory because she testified that Mr. Hargrove was the one who arranged
    the marijuana deal. To be sure, Ms. Richter, during her direct examination, did
    finger Mr. Hargrove as the brains behind the operation. However, we question
    the reliability of this ostensibly incriminating testimony because Ms. Richter
    admitted that she had taken full responsibility for all of the events that occurred
    and wholly exculpated Mr. Hargrove in her plea agreement. See R., Vol. III, at
    97 (testifying that she (i.e., Ms. Richter) had previously stated that she, and not
    Mr. Hargrove, had planned the drug transaction and that she planned it because
    she was in need of money). Given that the two lines of unchallenged evidence
    discussed above unequivocally pointed the jury to Mr. Hargrove’s
    guilt—rendering the effect of the agent’s improper stolen-gun testimony
    inconsequential—we need not rely on Ms. Richter’s dubious testimony to support
    our analysis here.
    33
    pointing directly toward a guilty verdict. Notably, Mr. Hargrove likewise fails to
    address the significance of this testimony on appeal.
    Second, the government presented testimony from numerous agents
    throughout trial that Mr. Hargrove’s defense that he thought the marijuana (all
    297 pounds of it) was alfalfa was incredible because alfalfa and marijuana smell
    nothing alike and are packaged in entirely distinct ways. See, e.g., id. at 47 (“Q.
    Did you notice anything when [Ms. Richter] rolled down the window? A. I could
    immediately smell the smell of marijuana. Q. Have you spent any time around
    alfalfa, [agent]? A. A little bit. My aunt had a cattle farm down in Mexico,
    growing up. I’ve been around it. And also, through the work here, I’ve seen it.
    Q. Does it smell anything like marijuana? A. No, it does not.”); see also id. at
    65–66 (testifying that alfalfa is not packaged the same way as marijuana:
    “[Alfalfa is] actually not packaged. It’s kind of bounded [sic] together by wire.
    As far as I know, they try to keep all the moisture out of it because if it gets wet
    or whatever . . . it spoils, so . . . they try to keep it open-air”); id. at 66–67 (“Q.
    And in your 12 years as a law enforcement officer, have you encountered a lot of
    marijuana? A. Yes, sir. Q. Do you know what marijuana smells like? A. I do.
    Q. In your experience, does alfalfa smell like marijuana? A. Not at all”); id. at
    238 (after testifying that the marijuana was packaged in bundles, an agent further
    testifying: “Q. Have you seen alfalfa before? A. Yes, sir, I have. Q. In your
    experience, how is alfalfa packaged? A. Usually, three strand wires, maybe four
    34
    strands, sometimes twine”). The ample testimony on this front would have made
    patent to the jury that Mr. Hargrove’s defense was based on a far-fetched
    assertion that he mistakenly believed that the marijuana was alfalfa. Again, Mr.
    Hargrove does not raise any specific challenge to this testimony on appeal.
    Thus, we believe that these two lines of evidence, taken by themselves,
    strongly and convincingly directed the jury to a guilty verdict. Therefore, we are
    quite confident that any “improper effect [the Border Patrol agent’s] intimations
    may have had on the jury . . . pales in comparison to the total weight of the
    government’s evidence.” Lamy, 
    521 F.3d at 1266
    . Accordingly, we conclude that
    this factor too weighs in favor of affirming the district court’s denial of Mr.
    Hargrove’s motion for mistrial.
    ***
    In light of the above analysis, and given that all three factors of the
    Meridyth test weigh in favor of the government, we conclude that the district
    court did not abuse its discretion in denying Mr. Hargrove’s motion for a mistrial.
    B
    We now turn to Mr. Hargrove’s second challenge: he contends that the
    district court erred when it did not grant him a U.S.S.G. § 5C1.2 safety-valve
    adjustment during sentencing. More specifically, Mr. Hargrove argues that the
    district court “erred by considering only Mr. Hargrove’s possession of the
    firearms and their and his proximity to the marijuana, without taking into account
    35
    Mr. Hargrove’s own conduct.” Aplt.’s Opening Br. at 7. We disagree and affirm
    the district court’s safety-valve ruling. In the following discussion, we recount
    (1) the district court’s ruling, (2) our standard of review, (3) the legal framework
    governing our analysis, and (4) how that framework applies in this case.
    1
    Generally, the district court evaluated whether Mr. Hargrove possessed the
    firearms “in connection with the offense,” U.S.S.G. § 5C1.2(a)(2), by looking to
    their “proximity and potential to facilitate the offense.” R., Vol. I, at 24 (quoting
    United States v. Andrade-Vargas, 459 F. App’x 762, 767 (10th Cir. 2012)
    (unpublished)). Applying that rubric, the district court concluded that Mr.
    Hargrove was not eligible for the safety-valve reduction because (1) the firearms
    were located “in the cab of the pickup truck with Defendant and the marijuana,”
    and thus were in close proximity to the drug trafficking, and (2) the firearms “had
    the potential” to facilitate the drug trafficking, even if the firearms did not do so
    directly. Id.
    More specifically, the district court highlighted several facts in support of
    its decision, including: that Mr. Hargrove, the drugs, and both guns were all in the
    cab of the pickup truck—with the pistol on the dashboard and the rifle behind the
    front seat; that both guns were loaded; and that Mr. Hargrove evinced knowledge
    of the location of the guns, since he voluntarily told the agents about them. The
    court expressly took note of Mr. Hargrove’s exculpatory statements “that he had
    36
    no knowledge of the marijuana, he was in the area to fish, and he thought the
    bundles of marijuana were alfalfa,” but effectively declined to credit those
    statements, finding instead that “[t]he presence of firearms was not coincidental
    or entirely unrelated to the drug transaction.” Id. at 22, 24; see also id., Vol. III,
    at 8 (regarding the presence of the guns, the district court stated: “If I’m going to
    my first big drug deal in Rodeo -- in a farm outside Rodeo, New Mexico, in the
    dark of the night with a bunch of guys, backpackers, coming over the hill, I might
    think I needed to be protected”). In sum, the district court determined that Mr.
    Hargrove “ha[d] not met his burden by a preponderance of the evidence to
    demonstrate eligibility for the safety valve” and thus he was “subject to the
    statutory mandatory minimum sentence of 60 months.” Id., Vol. I, at 24.
    2
    We review the district court’s denial of U.S.S.G. § 5C1.2 safety-valve
    relief for clear error, “giving due deference to the district court’s application of
    the Sentencing Guidelines to the facts.” United States v. Zavalza-Rodriguez, 
    379 F.3d 1182
    , 1184 (10th Cir. 2004). “Clear error exists if a factual finding ‘is
    wholly without factual support in the record, or after reviewing the evidence, we
    are definitively and firmly convinced that a mistake has been made.’” United
    States v. Hooks, 
    551 F.3d 1205
    , 1217 (10th Cir. 2009) (quoting United States v.
    Ivory, 
    532 F.3d 1095
    , 1103 (10th Cir. 2008)). And this deferential standard of
    review “applies equally regardless of whether the district court’s factual findings
    37
    are based on credibility determinations or on documentary evidence.” La
    Resolana Architects, PA v. Reno, Inc., 
    555 F.3d 1171
    , 1177 (10th Cir. 2009);
    accord United States v. Little, 
    60 F.3d 708
    , 713 (10th Cir. 1995); see also United
    States v. Galvon-Manzo, 
    642 F.3d 1260
    , 1270–71 (10th Cir. 2011) (observing, in
    analyzing defendant’s challenge to safety-valve determination, that although
    district court’s evaluation of attorney reports did not evaluate the defendant’s
    credibility “in the typical sense, the court was considering the truthfulness and
    ‘credibility’ of all the information he provided in various ways to the government
    and to the court,” and declining to disturb the district court’s “obvious[]”
    determination that defendant was not trustworthy).
    3
    a
    Congress has enacted mandatory-minimum sentencing provisions for many
    different crimes, including the drug-trafficking offenses at issue here. See, e.g.,
    
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(B). However, Congress has “refine[d]” the
    operation of those mandatory-minimum provisions for “the least culpable
    participants” in federal drug-trafficking offenses by creating an exception to
    mandatory-minimum sentences, known as the safety valve, which applies when
    defendants meet certain criteria. H.R. R EP . N O . 103-460, at 3 (1994), 
    1994 WL 107571
    ; see 
    18 U.S.C. § 3553
    (f); see also United States v. Pena-Sarabia, 
    297 F.3d 983
    , 988 (10th Cir. 2002) (“The basic purpose of the safety valve was ‘to
    38
    permit courts to sentence less culpable defendants to sentences under the
    guidelines, instead of imposing mandatory minimum sentences.’” (quoting
    Acosta-Olivas, 
    71 F.3d at 378
    )); accord United States v. Brooks, 
    722 F.3d 1105
    ,
    1108 (8th Cir. 2013) (“In the safety valve statute and parallel advisory guidelines
    provision, ‘Congress provided relief for less culpable drug offenders from its
    harsh mandatory minimum sentences.’” (quoting United States v. Tournier, 
    171 F.3d 645
    , 646 (8th Cir. 1999))).
    At Congress’s direction, the Sentencing Commission has inserted the safety
    valve provision into the Guidelines. See U.S.S.G. § 5C1.2, cmt. background.
    Section 5C1.2(a) provides relief under the safety valve if the defendant can meet
    the following criteria:
    (1) the defendant does not have more than 1 criminal history
    point, as determined under the sentencing guidelines before
    application of subsection (b) of §4A1.3 (Departures Based on
    Inadequacy of Criminal History Category);
    (2) the defendant did not use violence or credible threats of
    violence or possess a firearm or other dangerous weapon (or
    induce another participant to do so) in connection with the
    offense;
    (3) the offense did not result in death or serious bodily injury to
    any person;
    (4) the defendant was not an organizer, leader, manager, or
    supervisor of others in the offense, as determined under the
    sentencing guidelines and was not engaged in a continuing
    criminal enterprise, as defined in 
    21 U.S.C. § 848
    ; and
    (5) not later than the time of the sentencing hearing, the
    39
    defendant has truthfully provided to the Government all
    information and evidence the defendant has concerning the
    offense or offenses that were part of the same course of conduct
    or of a common scheme or plan, but the fact that the defendant
    has no relevant or useful other information to provide or that the
    Government is already aware of the information shall not
    preclude a determination by the court that the defendant has
    complied with this requirement.
    § 5C1.2(a)(1)–(5) (emphases added). 9 The defendant bears the burden of
    satisfying all five criteria by a preponderance of the evidence. United States v.
    Verners, 
    103 F.3d 108
    , 110 (10th Cir. 1996). If the defendant satisfies all five
    criteria, the sentencing “court shall impose a sentence without regard to a
    statutory minimum.” Zavalza-Rodriguez, 
    379 F.3d at 1185
    .
    b
    Here, only the second criterion—whether Mr. Hargrove “possess[ed] a
    firearm . . . in connection with the offense”—is at issue because the government
    has conceded that Mr. Hargrove otherwise qualifies for the safety valve. We note
    three principles informing what it means to possess a firearm “in connection with
    the offense,” before summarizing one case particularly important to our analysis.
    i
    First, we have held that a firearm is possessed “in connection with the
    offense” if the firearm facilitates or, as relevant here, has the “potential to
    facilitate” the offense. United States v. Hallum, 
    103 F.3d 87
    , 89 (10th Cir. 1996),
    9
    These five criteria replicate the relevant statute’s requirements. See
    
    18 U.S.C. § 3553
    (f)(1)–(5).
    40
    overruled on other grounds by Pena-Sarabia, 
    297 F.3d at
    989 & n.2 (overruling
    by an en banc footnote). Hallum’s “facilitate or potential to facilitate” concept
    arose out of statutory and Guidelines provisions that are analogous to the firearms
    component of the safety-valve provision. For example, we interpreted similar
    language in the Guidelines enhancement for defendants who possess a firearm “in
    connection with another felony offense” as applying when “the weapon facilitates
    or has the potential to facilitate . . . the offense.” United States v. Walters, 
    269 F.3d 1207
    , 1219 (10th Cir. 2001) (quoting United States v. Gomez-Arrellano, 
    5 F.3d 464
    , 466–67 (10th Cir. 1993)). 10
    In doing so, we relied on the Supreme Court’s interpretation of whether a
    firearm was used “in relation to” an offense in Smith v. United States, 
    508 U.S. 223
    , 238 (1993), partially abrogated on other grounds by Bailey v. United States,
    
    516 U.S. 137
     (1995). See Gomez-Arrellano, 
    5 F.3d at
    466–67. In Smith, the
    Supreme Court had interpreted the “in relation to” language as requiring that “the
    gun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug
    10
    Walters and Gomez-Arrellano both addressed previous iterations of
    U.S.S.G. § 2K2.1(b)(5). See U.S.S.G. § 2K2.1(b)(5) (1992) (“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, increase by 4 levels. If the resulting offense level is less
    than level 18, increase to level 18.”); U.S.S.G. § 2K2.1(b)(5) (1998) (same); see
    also Walters, 
    269 F.3d at 1218
    ; Gomez-Arrellano, 
    5 F.3d at 466
    . The Guidelines
    applicable at the time of the offense contained similar language. U.S.S.G. §
    2K2.1(b)(6)(B) (2016).
    41
    trafficking offense.” 
    508 U.S. at 238
     (quoting United States v. Stewart, 
    779 F.2d 538
    , 539 (9th Cir. 1985) (Kennedy, J.), overruled in part on other grounds, as
    recognized in Muscarello v. United States, 
    524 U.S. 125
    , 137 (1998)). 11 Thus, in
    light of the foregoing, we should consider Mr. Hargrove’s possession of the
    firearms to have been “in connection with the offense” only if the firearms
    facilitated or had the potential to facilitate the offense.
    Second, we have focused on “the defendant’s own conduct” in evaluating
    his eligibility for safety-valve relief. Zavalza-Rodriguez, 
    379 F.3d at 1186
    .
    Thus, for example, we have ruled that proof of “a joint criminal actor’s
    reasonably foreseeable possession of a firearm” is not “sufficient to foreclose” a
    defendant from receiving safety-valve relief. Pena-Sarabia, 
    297 F.3d at
    988–89
    & n.2 (overruling Hallum “to the extent it is inconsistent with th[is] rule” of law).
    This focus on a defendant’s own conduct is fully in accord with the Sentencing
    Commission’s commentary, which ordinarily controls our interpretation of the
    advisory Guidelines. See United States v. Gieswein, 
    887 F.3d 1054
    , 1058 (10th
    11
    Though the Hallum panel did not expressly mention the historical
    origins of the “potential to facilitate” linguistic formulation, other panels of this
    court, albeit in unpublished decisions, have recognized its historical roots. See
    United States v. Archuleta, 257 F. App’x 116, 123 (10th Cir. 2007) (unpublished)
    (connecting Hallum’s “potential to facilitate” language with Walters, 
    18 U.S.C. § 924
    (c)(1), and U.S.S.G. § 2K2.1(b)(5)); see also United States v. Castaneda
    Ascencio, 260 F. App’x 69, 71–72 (10th Cir. 2008) (unpublished) (quoting and
    affirming the district court’s statement that Gomez-Arrellano’s “analysis is
    applicable to the application of Sentencing Guideline Section 5C1.2,” before
    relying on Hallum’s “potential to facilitate” language).
    42
    Cir.) (noting that the Guidelines “commentary from the Sentencing Commission is
    ‘authoritative unless it violates the Constitution or a federal statute, or is
    inconsistent with, or a plainly erroneous reading of, that guideline’” (quoting
    Stinson v. United States, 
    508 U.S. 36
    , 38 (1993))), cert. denied, 
    139 S. Ct. 279
    (2018); accord United States v. Lucero, 
    747 F.3d 1242
    , 1247 (10th Cir. 2014).
    As relevant here, the Commission expressly “limit[ed] the accountability of the
    defendant to his own conduct and conduct that he aided or abetted, counseled,
    commanded, induced, procured, or willfully caused.” U.S.S.G. § 5C1.2 cmt. n.4
    (emphasis added).
    Third and relatedly, Zavalza-Rodriguez emphasized that “possession in
    § 5C1.2(a)(2) is an active possession whereby there is a close connection linking
    the individual defendant, the weapon and the offense.” 
    379 F.3d at 1187
    (emphasis added).
    ii
    Zavalza-Rodriguez offers helpful instruction regarding the contours of the
    “own conduct” and “active possession” principles described supra. Therefore, we
    turn to look at Zavalza-Rodriguez in more depth.
    Zavalza-Rodriguez discussed these two principles in explaining why the
    firearms provision of the safety valve is materially distinct from a related firearms
    enhancement in § 2D1.1(b)(1). That Guideline provides for an offense-level
    enhancement for certain convicted drug traffickers “[i]f a dangerous weapon
    43
    (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). In
    Zavalza-Rodriguez, police officers found the defendant in a home that contained
    narcotics, material used to package narcotics, five firearms, and a large amount of
    cash. 
    379 F.3d at 1184
    . The officers found one of the firearms, a loaded
    semiautomatic pistol, in the room where the defendant was staying. 
    Id.
     The
    home was owned by a third party who also was involved in selling narcotics, and
    the defendant claimed that he had only spent one night in the home. 
    Id.
    In his plea agreement, the defendant had stipulated to a sentencing
    enhancement pursuant to § 2D1.1(b)(1), which applies when “a dangerous weapon
    (including a firearm) was possessed,” based on the presence of the pistol;
    however, the defendant separately argued that he was eligible for the safety valve
    because the gun was not possessed “in connection with” the offense within the
    meaning of § 5C1.2. Id. In particular, while the defendant acknowledged that he
    had constructively possessed the gun through his knowledge of the gun’s presence
    in the bedroom where he stayed, he denied ever actually possessing or even
    touching the gun. Id. at 1184–85. The district court accepted this argument, and
    held the defendant was eligible for the safety valve, because there was a lack of
    evidence connecting the defendant to the gun. Id. at 1184.
    We affirmed. To start, we “explain[ed] that while a § 2D1.1(b)(1) sentence
    enhancement applies to a defendant for a co-conspirator’s possessing a weapon, a
    defendant is not precluded from receiving a safety valve reduction [in the context
    44
    of such a conspiracy] based on the defendant’s individual conduct,” if that
    conduct does not run afoul of the firearms component of the safety-valve
    provision. Id. at 1186 (emphasis added); see also id. (noting that, “[a]lthough
    conspiracy was not charged in the information, [the defendant’s] situation is
    closely analogous to the facts of these cases”). This is because in evaluating the
    safety-valve provision, unlike § 2D1.1(b)(1), we focus on the defendant’s “own
    conduct” and “recognize a distinction between constructive and actual
    possession.” Id. Thus, while a co-conspirator’s possession of a firearm might
    satisfy § 2D1.1(b)(1), the Guidelines commentary to the safety-valve provision
    limits a defendant’s accountability to his “own conduct.” U.S.S.G. § 5C1.2 cmt.
    n.4.
    As for “active possession” of a firearm—which, as noted, entails a “close
    connection linking the individual defendant, the weapon and the offense”—we
    reasoned that this requirement prevents mere constructive possession (without
    more) from satisfying the safety-valve provision, though it might satisfy
    § 2D1.1(b)(1). Zavalza-Rodriguez, 
    379 F.3d at
    1186–87. 12 However, we
    specifically distinguished situations involving mere constructive possession, as in
    Zavalza-Rodriguez, from those where a defendant acknowledged actual
    12
    See also United States v. Gutierrez-Casillas, 140 F. App’x 26, 28
    (10th Cir. 2005) (unpublished) (“We concluded [in Zavalza-Rodriguez] that
    § 2D1.1(b)(1) merely requires ‘constructive possession,’ based on proximity of
    the gun, whereas § 5C1.2 requires ‘actual possession,’ which is characterized by a
    closer degree of connection.” (quoting Zavalza-Rodriguez, 
    379 F.3d at
    1186–88)).
    45
    possession of a firearm. 
    Id.
     at 1186 n.2. Taking note of our prior precedent,
    especially Hallum, we acknowledged that, when a defendant “did not argue that
    the gun was not actually his nor that it was merely constructively possessed,” “a
    gun’s proximity and potential to be used in connection with the offense” may well
    be sufficient to bar safety-valve relief. 
    Id.
     (citing Hallum, 103 F.3d at 89). 13
    13
    We made this acknowledgment in the course of harmonizing the
    principles announced in Zavalza-Rodriguez with our prior precedent, most notably
    in Hallum, where we held that “a firearm’s proximity and potential to facilitate
    the offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2),” 103 F.3d
    at 89. See Zavalza-Rodriguez, 
    379 F.3d at
    1186 n.2. Because “[i]n cases of
    conflicting circuit precedent our court ‘follow[s] earlier, settled precedent over a
    subsequent deviation therefrom,’” United States v. Sabillon-Umana, 
    772 F.3d 1328
    , 1334 n.1 (10th Cir. 2014) (quoting Haynes v. Williams, 
    88 F.3d 898
    , 900
    n.4 (10th Cir. 1996)), it was incumbent upon the Zavalza-Rodriguez panel to
    explain why the dimensions of the safety-valve provision that it outlined were
    congruent with our earlier decision in Hallum. In other words, we recognized that
    Hallum was the law of this circuit. And, rather than purporting to overrule any
    portion of it, as we did in Pena-Sarabia, 
    297 F.3d at
    989 & n.2, the
    Zavalza-Rodriguez panel endeavored—as principles of stare decisis dictated—to
    harmonize its articulation of the safety-valve’s dimensions with Hallum’s holding
    that a firearm’s proximity and potential to facilitate the offense may be
    determinative. Given that this harmonization endeavor was a necessary step in
    establishing the legitimacy and integrity of Zavalza-Rodriguez’s holding, we are
    entirely unpersuaded by Mr. Hargrove’s assertion that Zavalza-Rodriguez’s
    discussion of Hallum amounted to no more than non-binding dicta. See Aplt.’s
    Opening Br. at 15 n.5 (contending that in Zavalza-Rodriguez “the Court did not
    need to consider—and did not consider—whether its opinion had an impact on
    Hallum, and its discussion of Hallum is nothing more than dicta”). Compare
    Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 S TAN . L. R EV . 953,
    953 (2005) (“A holding consists of those propositions along the chosen decisional
    path or paths of reasoning that are actually decided, are based upon the facts of
    the case, and lead to the judgment. A proposition in a case that is not holding is
    dicta.” (emphasis added)), with Rohrbaugh v. Celotex Corp., 
    53 F.3d 1181
    , 1184
    (10th Cir. 1995) (“Dicta are ‘statements and comments in an opinion concerning
    some rule of law or legal proposition not necessarily involved nor essential to
    (continued...)
    46
    In other words, in the parlance of Zavalza-Rodriguez, in those
    circumstances a court may find that a defendant “actively possessed” the firearm.
    
    379 F.3d at 1188
    . This makes sense. Where a defendant’s actual possession is
    undisputed, the sentencing court may find—by focusing on the defendant’s own
    conduct—the close connection that active possession requires between the
    defendant and the firearm. As Zavalza-Rodriguez suggests, in a scenario of
    constructive possession, ordinarily more would be required to establish such a
    close connection. Compare 
    id. at 1186
     (noting that “we focus on the defendant’s
    own conduct for purposes of evaluating eligibility for the safety valve, and that
    we recognize a distinction between constructive and actual possession”), with
    Andrade-Vargas, 459 F. App’x at 764, 768 (declaring “mistaken” the notion that
    Zavalza-Rodrigruez held that “one must have actual physical possession of the
    firearm to make him ineligible for a safety valve reduction” and ruling in a
    circumstance where the defendant argued that “no evidence showed anyone saw
    him possessing a firearm” that constructive possession was sufficient to establish
    the active possession that Zavalza-Rodriguez requires, where the defendant had
    “knowledge and control of the firearms found in the bedroom he rented and had
    exclusive control over”). And, once the close connection between the defendant
    and the firearm is established, proof that the firearm was in close proximity to the
    13
    (...continued)
    determination of the case in hand.’” (emphasis added) (quoting Dicta, B LACK ’ S
    L AW D ICTIONARY (6th ed. 1990)).
    47
    offense and had the potential to facilitate the offense would round out the features
    of Zavalza-Rodriguez’s “active possession” requirement by demonstrating the
    close connection between the firearm and the offense. See United States v.
    Payton, 
    405 F.3d 1168
    , 1171 (10th Cir. 2005) (noting, where defendant actually
    possessed the firearms, that “[t]he mere propinquity of the weapons and drugs
    suggests a connection between the two”).
    In sum, our cases teach that a firearm is used “in connection with an
    offense” when it facilitates or has the “potential to facilitate” that offense.
    Hallum, 103 F.3d at 89. The focus of our inquiry is “the defendant’s own conduct
    for purposes of evaluating eligibility for the safety valve.” Zavalza-Rodriguez,
    
    379 F.3d at 1186
     (emphasis added). And the kind of firearms possession that bars
    application of the safety valve is “active possession whereby there is a close
    connection linking the individual defendant, the weapon and the offense.” 
    Id. at 1187
    . Lastly, in circumstances where the defendant’s own conduct evinces actual
    possession of the firearm, we have recognized that active possession may be
    shown by evidence of “[that] firearm’s proximity and potential to facilitate the
    offense.” Hallum, 103 F.3d at 89; see Zavalza-Rodriguez, 
    379 F.3d at
    1186 n.2.
    4
    As noted, Mr. Hargrove contends that the district court “erred by
    considering only Mr. Hargrove’s possession of the firearms and their and his
    proximity to the marijuana, without taking into consideration Mr. Hargrove’s own
    48
    conduct—a consideration required by this Court’s authorities.” Aplt.’s Opening
    Br. at 7. However, under the legal principles discussed above, Mr. Hargrove’s
    argument cannot prevail.
    a
    In Zavalza-Rodriguez, we expressly acknowledged that when a defendant
    concedes actual possession of a firearm (as opposed to mere constructive
    possession), the requirement of active possession—based on defendant’s own
    conduct—may be rounded out and completed by further evidence that the
    possessed firearm was in close proximity to the offense and had the potential to
    facilitate it. See 
    379 F.3d at
    1186 n.2. Accordingly, contrary to Mr. Hargrove’s
    assertion, on these facts—where Mr. Hargrove freely admitted that the firearms
    belonged to him and indicated that he had brought them in the vehicle to the
    scene of his arrest—the district court’s express focus on the firearms’ proximity
    and potential to facilitate the offense did not reflect an analytical disregard of Mr.
    Hargrove’s own conduct.
    Indeed, Mr. Hargrove’s admissions regarding possession of the firearms
    placed his own conduct front and center, and they were the jumping-off point for
    the court’s further inquiries into proximity and facilitation. In other words, by
    focusing on Mr. Hargrove’s admissions regarding his own conduct, the court
    could discern that Mr. Hargrove actually possessed the firearms at some point
    during the trip—at least likely so at the trip’s beginning, when the firearms were
    49
    placed in the vehicle—and had the firearms in close proximity to him thereafter,
    including at the time of his arrest. These admissions were sufficient to establish
    the close connection required for active possession between Mr. Hargrove and the
    firearms. At that point, the court was left with the task of determining whether
    the requisite close connection existed between the firearms and the offense, so as
    to establish active possession. As Zavalza-Rodriguez acknowledged, this close
    connection—under circumstances such as these—could be established where the
    firearm was in close proximity to and had the potential to facilitate the offense.
    See 
    379 F.3d at
    1186 n.2.
    And that was certainly true here. As noted, the district court specifically
    found (1) that the firearms were located “in the cab of the pickup truck with
    Defendant and the marijuana,” and thus were in close proximity to the drug
    trafficking, and (2) that the firearms—which were loaded—“had the potential” to
    facilitate the drug trafficking, even if the firearms did not do so directly. R., Vol.
    I, at 24. There is ample evidence in the record to support these factual findings.
    And it is well established that firearms are “‘tools of the trade’—that is, means
    for the distribution of illegal drugs.” United States v. Martinez, 
    938 F.2d 1078
    ,
    1083 (10th Cir. 1991) (quoting United States v. Wiener, 
    534 F.2d 15
    , 18 (2d Cir.
    1976)); accord United States v. McGehee, 
    672 F.3d 860
    , 872 (10th Cir. 2012); see
    also United States v. Burkley, 
    513 F.3d 1183
    , 1188 (10th Cir. 2008) (noting that
    “evidence of Defendant’s firearm possession would have been admissible to prove
    50
    his intent to distribute marijuana”). Firearms are used by drug traffickers (among
    other things) to protect themselves from other criminals and to safeguard their
    valuable narcotics from theft. See, e.g., United States v. Lott, 
    310 F.3d 1231
    ,
    1248 (10th Cir. 2002) (“We conclude that the placement of a loaded,
    semi-automatic weapon on the driver’s seat of the car in which the
    instrumentalities of methamphetamine manufacturing were also found is sufficient
    evidence from which a jury could conclude that the purpose of the gun was to
    provide defense or deterrence in furtherance of attempting to manufacture
    methamphetamine.”); see also United States v. King, 
    632 F.3d 646
    , 657 (10th Cir.
    2011) (“Because the loaded rifle in this case was located immediately adjacent to
    the drugs, a reasonable jury could infer that it furthered [the defendant’s] drug
    trade by protecting [the defendant] and his merchandise.”). Thus, Mr. Hargrove’s
    loaded guns certainly had the potential to fulfill this protective purpose and, as
    the district court specifically ruled, they had the potential to facilitate the drug-
    trafficking offense.
    To be sure, Mr. Hargrove has argued that his possession of the firearms was
    unrelated to the drug-trafficking activity. In this regard, before the district court,
    he asserted “that he had no knowledge of the marijuana, he was in the area to fish,
    and he thought the bundles of marijuana were alfalfa.” R., Vol. I, at 22.
    However, the court effectively discounted these statements in determining that
    “[t]he presence of the firearms was not coincidental or entirely unrelated to the
    51
    drug transaction.” Id. at 24. 14 And nothing in this record gives us pause in
    according this factual determination the customary measure of deference. See,
    e.g., Hooks, 
    551 F.3d at 1217
    .
    Mr. Hargrove repeatedly objects that the district court did not take into
    account that there was “no evidence that Mr. Hargrove had ever been involved in
    any sort of drug distribution,” Aplt.’s Reply Br. at 14 n.4, and “did not find that
    Mr. Hargrove actually used or attempted to use the firearms in any way,” Aplt.’s
    Opening Br. at 10. See Aplt.’s Opening Br. at 21 (noting that “Mr. Hargrove has
    no criminal history relating to the distribution of drugs or the use of firearms, let
    alone at the same time”); Aplt.’s Reply Br. at 17 (“There must be something more
    in the way of the defendant’s own conduct (such as evidence the defendant had
    been running a drug operation or evidence that the defendant planned to use the
    weapon against human beings) that establishes the weapons were connected to the
    offense.”). However, Mr. Hargrove cites no Tenth Circuit authority holding that a
    defendant’s prior drug-trafficking activities or actual use of the firearm are
    necessary to establish active possession—much less that such factors are
    14
    Panels of this court have frequently declined to credit self-serving
    statements about the purpose of a defendant’s firearm possession. See, e.g.,
    Andrade-Vargas, 459 F. App’x at 768 (“[I]t is evident that, in denying the
    reduction, the district court discredited Mr. Andrade-Vargas’s seemingly
    self-serving claims he did not own the handguns and that they were not in the
    room for the purpose of facilitating his drug trafficking activities—both of which
    were unsupported by any evidence.”); Gutierrez-Casillas, 140 F. App’x at 28
    (affirming district court’s decision to “discount[]” each defendant’s credibility
    “by self-interest” (quoting record)).
    52
    determinative. 15 In particular, there is nothing in Zavalza-Rodriguez that supports
    such a proposition. In fact, we have binding Tenth Circuit authority to the
    contrary—that is, where neither prior drug-trafficking activity nor actual use of
    the firearm appeared to play any role in our denial of safety-valve relief. See
    Hallum, 103 F.3d at 89.
    In sum, based on the foregoing, we reject Mr. Hargrove’s argument that the
    district court failed to properly focus on his own conduct and, thus, did not
    correctly determine his eligibility for safety-valve relief. In our view, the district
    court’s ruling is sound and consistent with our caselaw.
    b
    A closer inspection of our precedential Hallum decision only serves to
    underscore the correctness of our judgment. Indeed, even standing alone,
    Hallum—which involved materially similar facts—would arguably be
    determinative. In Hallum, officers apprehended Mr. Hallum and two accomplices
    who were carrying duffle bags full of marijuana from a marijuana patch to their
    vehicles, which were parked “200 to 300 yards” away from the patch. 103 F.3d at
    89. After searching the vehicles, the officers found a .22 caliber rifle, which Mr.
    15
    Mr. Hargrove relatedly asserts that “the precedential authority
    requires some affirmative action on the part of a defendant to establish that a
    weapon was possessed ‘in connection with the offense.’” Aplt.’s Reply Br. at 11
    (emphasis added). But Mr. Hargrove cites no precedential authority to support
    this assertion, merely directing us to the plain text of § 5C1.2(a)(2), which is
    unavailing.
    53
    Hallum later conceded was his. Mr. Hallum testified that he brought the rifle “to
    shoot snakes, and that while he could have used it to protect against another
    person he did not have that intention and ‘would have not wanted to.’” Id.
    (quoting record). “The district court rejected the essence of Hallum’s testimony,
    declaring that if defendants were afraid of and protecting against snakes they
    would not have left the rifle in the vehicle some 200 yards from the marijuana
    patch.” Id. The district court further found that “the weapon was close to the
    marijuana cultivation activity, and accessible.” Id. (quoting record).
    We affirmed the district court’s denial of Mr. Hallum’s safety-valve
    request. We deemed it significant that Mr. Hallum admitted that he had the gun
    “for protection.” Id. (quoting record). “This plus the district court’s other
    findings . . . establish[ed] proximity of the firearm to the offense.” Id. And, on
    these facts, we held that “a firearm’s proximity and potential to facilitate the
    offense is enough to prevent application of [U.S.S.G.] § 5C1.2(2).” Id. Notably,
    viewed through the prism crafted by our subsequent decision in Zavalza-
    Rodriguez, all of the elements of the requisite active possession were present in
    Hallum: Mr. Hallum conceded his actual possession of the firearm, establishing a
    close connection between him and the weapon, and the proximity of the firearm to
    the marijuana and the evident drug-trafficking activity of Mr. Hallum established
    the close connection between the weapon and the offense. See Zavalza-
    Rodriguez, 
    379 F.3d at 1187
    . And Mr. Hallum acknowledged that the weapon
    54
    could have been used as protection against other human beings, meaning that it
    had the potential to facilitate his drug trafficking. Thus, the district court’s denial
    of safety-valve relief should come as no surprise.
    Nor should a similar outcome surprise us here. Indeed, Hallum virtually
    commands it. 16 We begin with proximity. The officers apprehended Mr.
    Hargrove in a rural area with almost 300 pounds of marijuana in his pickup truck.
    “A [loaded] semi-automatic pistol . . . was on the dashboard and a loaded rifle
    was behind the seat.” R., Vol. I, at 21. The district court specifically noted that
    “[t]he firearms were located in the cab of the pickup truck with Defendant and the
    marijuana.” Id. at 24. The firearms here were thus even closer to Mr. Hargrove
    and the illegal narcotics than the firearm in Hallum was to Mr. Hallum.
    16
    As we previously mentioned, Hallum was overruled in part by an en
    banc footnote in Pena-Sarabia, 
    297 F.3d at
    989 & n.2. In the overruled portion
    of Hallum, we erroneously applied the principle that “participants in joint
    criminal enterprises can be accountable for the foreseeable acts of others that
    further the joint activity,” in concluding that Mr. Hallum’s co-conspirators, like
    Mr. Hallum, did not qualify for safety-valve relief simply because they “knew of
    the presence of the weapon Hallum brought to the marijuana patch; [and] that it
    might further their joint activity was reasonably foreseeable.” Hallum, 103 F.3d
    at 90. But, importantly, the court’s holding and analysis with respect to Mr.
    Hallum, which we explicate in text here, has maintained its vitality. See also
    Andrade-Vargas, 459 F. App’x at 767 (noting that “we have continued to rely on
    our holding in Hallum that a firearm’s proximity and potential to facilitate the
    offense may be sufficient to prevent application of the safety valve provision”);
    United States v. Montgomery, 387 F. App’x 884, 888 (10th Cir. 2010)
    (unpublished) (relying on Hallum); United States v. McClure, 358 F. App’x 5, 12
    (10th Cir. 2009) (unpublished) (same); United States v. Gonzalez-Ambriz, 353 F.
    App’x 155, 157 (10th Cir. 2009) (unpublished) (same); Archuleta, 257 F. App’x
    at 123 (same).
    55
    Further, like Mr. Hallum, Mr. Hargrove “voluntarily informed the agents of
    the presence of the firearms when he was seized.” Id. at 21. Mr. Hargrove told
    the agents that he had “two weapons inside the vehicle,” the rifle and the pistol.
    Id., Vol. III, at 263. In post-arrest statements, Mr. Hargrove “admitted the loaded
    rifle and pistol found in his truck belonged to him.” Id., Vol. II, ¶ 8, at 5. 17 And,
    as in Hallum, these admissions supported a finding that Mr. Hargrove actually
    possessed the firearms at some point during the trip and had them in close
    proximity to him.
    Finally, as in Hallum, Mr. Hargrove also ostensibly had the guns for
    protection against snakes but the district court effectively discredited that
    exculpatory explanation in denying him safety-valve relief. Mr. Hargrove asserts,
    however, that Hallum is not “directly analogous” to this case because, even
    though Mr. Hallum testified regarding having the firearm for protection against
    snakes, the Hallum panel elided the snake explanation and determined that he
    “had his gun ‘for protection’ in general, which necessarily implies that it could be
    for ‘protection’ from anything, including human beings.” Aplt.’s Reply Br. at 12.
    The situation here, as Mr. Hargrove reasons, is different; specifically, the
    17
    Indeed, in his opening statement, Mr. Hargrove’s counsel told the
    jury that Mr. Hargrove and Ms. Richter “have a lot of things in their truck,”
    including “a .25 caliber tiny little pistol” and the rifle that Mr. Hargrove “drives
    around with.” R., Vol. III, at 204. And, during a bench conference with the
    judge, Mr. Hargrove’s counsel plainly admitted that Mr. Hargrove “claimed
    ownership of the gun. . . . [H]e claimed ownership about it.” Id. at 278.
    56
    evidence indicated that he had the firearms only as protection against snakes.
    This line of argument is strained and unpersuasive. It is not remarkable
    that the Hallum panel spoke generally of Mr. Hallum having the firearms “for
    protection,” without any reference to the snakes justification, because the panel
    had credited the district court’s finding that Mr. Hallum’s snake story was
    incredible. 103 F.3d at 89 (noting the district court’s statement that “if
    defendants were afraid of and protecting against snakes they would not have left
    the rifle in the vehicle some 200 yards from the marijuana patch”). As such, Mr.
    Hargrove actually is on precisely the same footing as Mr. Hallum because the
    district court here also effectively found incredible Mr. Hargrove’s exculpatory
    statements about having the guns for protection against snakes, noting specifically
    that “[t]he presence of firearms was not coincidental or entirely unrelated to the
    drug transaction.” R., Vol. I, at 24. By merely reiterating statements “not found
    to be credible” by the district court, Mr. Hargrove is effectively asking “us for a
    de novo determination of credibility. [However, that] is not our role.” Payton,
    
    405 F.3d at 1171
    ; see Galvon-Manzo, 
    642 F.3d at
    1270–71; Hooks, 
    551 F.3d at 1217
    .
    In sum, Hallum cogently underscores the correctness of our decision to
    uphold the district court’s denial of safety-valve relief to Mr. Hargrove. Indeed,
    given the similarity of Hallum’s facts to the instant case, it is arguably
    determinative.
    57
    ***
    In sum, we conclude that the district court did not err in determining that
    Mr. Hargrove did not establish a basis for safety-valve relief under U.S.S.G.
    § 5C1.2.
    III
    Based on the foregoing, we AFFIRM the district court’s judgment
    regarding Mr. Hargrove’s conviction and sentence.
    58
    

Document Info

Docket Number: 17-2102

Citation Numbers: 911 F.3d 1306

Filed Date: 1/2/2019

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (40)

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Henry Maestas v. United States , 341 F.2d 493 ( 1965 )

United States v. Caballero , 277 F.3d 1235 ( 2002 )

United States v. James Edward Laymon , 621 F.2d 1051 ( 1980 )

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United States v. Smart , 518 F.3d 800 ( 2008 )

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susan-rohrbaugh-barbara-ann-clay-debra-mae-ambler-individually-and-as , 53 F.3d 1181 ( 1995 )

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United States v. Zavalza-Rodriguez , 379 F.3d 1182 ( 2004 )

United States v. Heriberto Gomez-Arrellano , 5 F.3d 464 ( 1993 )

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