United States v. Cox , 505 F. App'x 692 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
December 7, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-4087
v. (D.C. No. 2:10-CR-00273-DB-1)
(D. of Utah)
KIM LYLE COX,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, HOLLOWAY, and TYMKOVICH, Circuit Judges.
Kim Lyle Cox was sentenced to 71 months’ imprisonment and 36 months’
supervised release after pleading guilty to firearms charges. On appeal, Cox
claims the sentencing court clearly erred in enhancing his sentence after finding
he possessed a stolen gun. We conclude the government introduced sufficient
evidence for the court to infer Cox’s gun was stolen and AFFIRM the district
court’s sentence.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Background
Cox was arrested in Utah on January 12, 2010 on charges arising from a
state offense. While in custody, Cox called his girlfriend and directed her to
dispose of a gun hidden in his car. After retrieving the gun, the girlfriend took it
to her parents, asking them to discard it. Her parents kept the gun.
A month later, the Utah County Sheriff’s Office received an anonymous tip
that a gun at the girlfriend’s parents’ residence might have been involved in
homicides and that Cox might have information about the homicides. Also, Cox
was released the same day. A week later, police acted on the tip and went to the
parents’ home. They confiscated a 9mm Glock handgun with the serial number
DDX629US. One of the three serial numbers on the gun was scratched out.
Police later arrested Cox and charged him with possession of a firearm by a
felon. Cox pleaded guilty to this charge.
Cox’s presentence report (PSR) recommended a four-level increase in his
offense level pursuant to United States Sentencing Guideline (USSG)
§ 2K2.1(b)(4)(B) because the Glock had an obliterated serial number. Cox
objected to this increase on the grounds that only one of the gun’s three serial
numbers was scratched off. The sentencing court agreed this increase was not
warranted. The court nonetheless found the government’s evidence sufficient to
establish that Cox’s gun was stolen. The court then increased Cox’s offense level
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by two under USSG § 2K2.1(b)(4)(A). The court sentenced Cox to 71 months’
imprisonment and 36 months’ supervised release.
II. Discussion
We review the district court’s factual findings, including findings related to
application of the sentencing guidelines, for clear error. United States v. Graham,
413 F.3d 1211, 1218 (10th Cir. 2005). We will not disturb the district court’s
findings of fact unless they have no support in the record. United States v.
Mozee, 405 F.3d 1082, 1088 (10th Cir. 2005) (internal citation omitted). When
reviewing the district court’s findings, we should view the evidence and any
“inferences therefrom in the light most favorable to the district court’s
determination.” Id. (internal quotation omitted). At sentencing, the court is
entitled to make findings based on a preponderance of the evidence. United
States v. Magallanez, 408 F.3d 672, 684 (10th Cir. 2005).
In a case like this the court must draw inferences from circumstantial
evidence. But the inferences must be reasonable, meaning they must flow from
the facts in evidence based on logical or probabilistic reasoning. United States v.
Summers, 414 F.3d 1287, 1295 (10th Cir. 2005). An inference is permissible so
long as it is reasonable, even if the inference is not required by the evidence and
is not the one that the reviewing court, if it were the trier of fact, would make.
See United States v. Phillips, 543 F.3d 1197, 1210 (10th Cir. 2008). Inferences
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are unreasonable when they require “a degree of speculation and conjecture that
renders [them] a guess or mere possibility.” United States v. Bowen, 527 F.3d
1065, 1076 (10th Cir. 2008) (internal quotation omitted).
Cox contends the court erred in reviewing the evidence. He claims no
reasonable jurist could conclude from the evidence presented that his gun was
stolen; the gun’s status was merely a possibility or guess. We disagree.
At Cox’s sentencing, the government introduced several pieces of evidence
and testimony to prove his gun was stolen: (1) a bill of sale showing the 9mm
Glock handgun with the serial number DDX629US that ended up in Cox’s
possession was purchased by Dennis White in 1999; (2) a police report showing a
gun matching this description was stolen from the home of Dennis’s son Greg in
2006, although it did not provide the gun’s serial number; and (3) a police report
stating that police detectives in Laramie, Wyoming, had learned that Cox had a
gun that was stolen from Greg White and that the White burglary happened at a
time when Cox was White’s neighbor. 1 The government claims this evidence,
taken as a whole, shows that Dennis White’s 9mm Glock handgun was stolen
from his son, Greg, in 2006, and made its way to Cox, who then possessed it until
his girlfriend gave it to her parents.
1
The report is hearsay, but hearsay is admissible at sentencing so long as
it has some indicia of reliability. United States v. Cook, 550 F.3d 1292, 1296
(10th Cir. 2008).
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Cox told his arresting officers a different story of the gun’s provenance.
He claimed to have purchased the gun approximately 7 years before his arrest.
He claims he bought it from a stranger in a Salt Lake City gas station parking lot
for $100. Cox admits that at the time of the purchase, when he asked the seller
whether the gun was “hot,” the seller replied, “Probably.” R., Vol. III at 6.
Cox’s account conflicts with the government’s evidence in that, if believed, it
shows he obtained the gun before Greg White was burglarized, so the gun could
not have come from the Whites.
Before the district court and on appeal, Cox argues this evidence does not
establish his gun was stolen because it does not eliminate the possibility that Greg
White had another 9mm Glock pistol stolen from him, as opposed to the 9mm
Glock owned by his father and then Cox. Cox may be correct that the
government’s evidence does not require the inference that his gun was stolen
from the Whites, but the evidence nonetheless permits this inference.
First, Cox is simply incorrect that none of the government’s evidence goes
to whether his gun was stolen. The government may not have introduced any
direct evidence of this fact, but it introduced several pieces of circumstantial
evidence tending to show this. This includes the evidence discussed above, as
well as Cox’s attorney’s admission at sentencing that Dennis White transferred
his Glock to his son, Greg. Cox denies his attorney made such an admission,
claiming he merely declined to dispute the contents of Cox’s PSR, but the
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transcript of the sentencing hearing shows that he did. 2 The sentencing court was
2
The dissent argues that, read in context, it is clear Cox’s counsel did not
concede that Dennis White transferred the Glock to his son, Greg. The relevant
exchange was as follows:
The Court: Right, but we have this information that I can look at, and
it appears to be authentic, that Dennis White purchased a Glock nine
millimeter with the serial number D.D.X. 629 –
Mr. Douglas [Defense Counsel]: I do not dispute that he owned the
Glock here.
The Court: I take it you don’t dispute that – maybe I shouldn’t – do
you dispute the information that the father transferred the gun to the
son?
Mr. Douglas: I take it from the report and I would not dispute that.
The Court: Then the son reported stolen a 9mm Glock.
Mr. Douglas: That is right, but we don’t know whether that is the
Glock that he borrowed from his father. We do not know if his
father owned more than –
The Court: Do you have any information that he did own more than
one Glock?
R., Vol. II at 28–29. This reveals that the court was discussing Cox’s gun, the
DDX629US Glock, and then asked counsel whether he disputed that the father
(Dennis) transferred “the” gun to his son (Greg). In the context of the discussion,
“the gun” clearly refers to Cox’s Glock, serial number DDX629US.
Counsel then argued the gun stolen from Greg might not have been the
Glock he borrowed from Dennis, or that Dennis might have had more than one
Glock. But counsel never finished this second argument, as he was interrupted by
the court. The dissent assumes counsel was planning to argue that Dennis may
have transferred a different Glock to Greg. But this is not in the transcript, unlike
counsel’s clear concession that Dennis transferred “the gun” to Greg. It is
equally likely that counsel planned to argue that Dennis transferred multiple
(continued...)
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entitled to rely on this representation. See United States v. Ventura-Perez, 666
F.3d 670, 676 (10th Cir. 2012) (“Courts could not function properly if
concessions by counsel cannot be relied upon.”).
This evidence together created a reasonable probability that the 9mm Glock
Greg White reported as stolen was the same 9mm Glock that belonged to Dennis
White. Phillips, 543 F.3d at 1210. Cox claims an inference is permissible only if
strictly logical, pointing out that correlation is not causation and citing United
States v. Jones, 49 F.3d 628, 632 (10th Cir. 1995). He says the inferences here
rely on the logical fallacy of post hoc ergo propter hoc, in which a temporal
connection between events—in this case, his possession of the Glock after Greg
White’s robbery—is erroneously assumed to be a causal connection. He asserts
this moves the inference into the realm of speculation, making it unreasonable.
Cox may be correct that the government’s evidence does not require us to
deduce his gun was stolen, but the reasonableness of a permissive inference is not
based solely on deductive reasoning. As we stated in Summers, an inference is
2
(...continued)
identical Glocks to Greg, including the DDX629US Glock.
In any event, Cox’s primary argument below and on appeal is that the
government did not prove the Glock stolen from Greg White was the DDX629US
Glock, as opposed to a hypothetical identical Glock. Whether this hypothetical
second Glock came from Dennis or Greg does not change the analysis, given
counsel’s admission that Dennis transferred the DDX629US Glock to Greg.
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also permissible if the evidence establishes a reasonable probability it is true.
414 F.3d at 1295; see also Phillips, 543 F.3d at 1210. 3
The chain of logic establishing that Cox’s gun was stolen is as follows:
Dennis White bought the Glock, Dennis White gave the Glock to Greg White,
someone stole a gun matching the Glock’s description from Greg White, and Cox
was later found in possession of the Glock. The only missing link is conclusive
proof that the stolen gun was this same Glock, and not, as Cox argues, an
identical gun Greg White possessed in addition to his father’s gun. The evidence
tends to make the former explanation more likely than the latter.
While the dissent is correct that the government did not prove Greg White
possessed only one 9mm Glock, the burglary evidence does not exist in a vacuum.
The government’s evidence also showed that Greg’s father, Dennis, purchased the
Glock, and that Cox was later found in possession of it. When asked to explain
how he got the gun, Cox gave an unconvincing account that frankly supports the
inference that the gun was stolen.
We have held that unexplained possession of stolen property supports the
inference that the possessor knew the property was stolen and actually stole the
property himself. See United States v. Luman, 624 F.2d 152, 155 (10th Cir.
3
Probabilistic reasoning is a form of inductive reasoning, whereby
conclusions are reached by generalizing from specific facts. See John Vickers,
“The Problem of Induction,” The Stanford Encyclopedia of Philosophy (Edward
N. Zalta, ed., 2011), http://plato.stanford.edu/entries/induction-problem/.
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1980). This does not exactly describe the situation here, but it is similar enough
to support a similar inference. Cox explained his possession of a gun that the
evidence suggested was stolen by stating he bought it from a stranger in a gas
station parking lot who told him it was probably stolen. 4 Taken in conjunction
with the other evidence, this makes it more likely than not that the gun was
stolen, regardless of whether Greg White had a hypothetical second Glock.
The Eighth Circuit’s decision in United States v. Bates supports this
analysis. 584 F.3d 1105 (8th Cir. 2009). In Bates, the Eighth Circuit affirmed
the district court’s finding at sentencing that the defendant’s gun was stolen based
on the former owner’s testimony that he probably left the gun at a bar. Id. at
1107–08. He also admitted his girlfriend might have taken the gun, though she
denied this. Id. The former owner never reported the gun stolen, and there was
no evidence as to who took the gun or how, but the court held that the evidence
was sufficient to support the inference that whoever took the gun did not have the
owner’s permission and intended to deprive him of ownership. Id.The evidence here is stronger: a gun matching the description of Cox’s
weapon was reported stolen from the former owner’s son who, as Cox’s attorney
4
Cox’s account obviously differs somewhat from the government’s theory,
primarily because he claimed he purchased the gun roughly three years before
Greg White was robbed. But viewing this evidence in the light most favorable to
the district court’s determination, Cox’s frankly implausible claim that he bought
the gun “approximately” seven years prior to his arrest is vague and does not
necessarily drive a conclusion he obtained the gun before Greg White was robbed.
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admitted, received the gun from his father. This certainly permits the inference
that the stolen gun was the same gun once owned by Dennis White and later
found in Cox’s possession, even though the evidence does not require this
inference. Given that this inference is permissible, we are bound to draw it in the
district court’s favor. Mozee, 405 F.3d at 1088.
Because the underlying circumstantial evidence and reasonable inferences
drawn therefrom support the district court’s finding under a preponderance of the
evidence standard, the district court did not clearly err when it concluded Cox’s
gun was stolen. Given this, the district court also did not err when it increased
Cox’s offense level by two under USSG § 2K2.1(b)(4)(A).
IV. Conclusion
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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United States v. Cox, No. 11-4087
HOLLOWAY, Circuit Judge, dissenting:
I respectfully dissent. It is well settled that the government has the burden
of proof with respect to sentence enhancements. See, e.g., United States v.
Munoz-Tello, 531 F.3d 1174, 1181 n.12 (10th Cir. 2008). Consequently, mere
assumptions without adequate support in the record are insufficient. Id. at 1182-
83. I cannot agree that the government carried its burden of proof with respect to
the sentencing enhancement at issue here.
The government’s case on the critical issue of the “stolen” gun rested
entirely on the three exhibits which were admitted without objection – Exhibits 2,
3 and 4. Exhibit 3 shows that the offense gun had been purchased in 1999 by
Dennis White; the exhibit includes the serial number of the offense gun. Exhibit
4 shows that in 2006, a Glock pistol, serial number unknown, had been stolen
from a garage in Lehi, Utah belonging to Greg White (the son of Dennis White).
With these facts established, the government still needed to provide the last link
in the logical chain: some evidence that the gun stolen from Greg White’s garage
was the same gun that Dennis White had purchased in 1999.
Such evidence was needed, in my view, because Exhibits 3 and 4 were
insufficient to support a reasonable inference that the stolen gun was the offense
gun. To reach the desired conclusion based on the fact that Dennis White had
purchased the offense gun in 1999, and a similar gun had been stolen from Greg
White in 2006, would require speculation, not reasoned, probabilistic analysis.
Therefore, it seems to me that the issue turns on whether Exhibit 2 provided the
critical, missing linkage.
In my view, Exhibit 2 provides nothing at all. This one-page exhibit is an
excerpt from an incident report, possibly from the Defendant’s arrest on the
current charge. The author of the report is not identified. The report includes
this:
Wyoming detectives provided me a report which explains how
they learned this firearm in question [] was sold by Sportsman’s
Warehouse to Dennis White, and then stolen from Dennis’s son Greg
White, who resided at 377 W 200 S in Lehi, UT., at the time of the
theft, see attached report.
I spoke with Lt. Jeff Magnusson with Lehi Police, who told me
the firearm in question was reported stolen by Greg White as stated, .
. . see attached for further details.
Otherwise, Exhibit 2 reports that at the time of the theft Mr. Cox lived in
Lehi “in close proximity” to the location of the theft. It is particularly
noteworthy that there is no attachment to this exhibit, nor was any explanation
given for the absence of the attachment referenced twice in the exhibit.
The majority correctly notes that hearsay is admissible in sentencing
hearings subject to the requirement that the evidence must have some indicia of
reliability. Exhibit 2, on which the government’s case must turn, has no indicia
of reliability as to the information relayed from Wyoming authorities to the
unidentified author. It is undisputed that Greg White did not report the serial
number of the gun that had been stolen from his garage. How did the Wyoming
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authorities determine that the stolen gun was the same weapon as the offense gun?
What was the source of the information? Did the Wyoming authorities learn this,
or did they merely surmise that it might be the case? Did the Wyoming
authorities interview either Dennis White or Greg White? We are given no such
essential information. Apparently the majority agrees that this information is
untrustworthy, because if it were accepted, it would resolve the issue without
need for any further analysis.
The majority opines that defense counsel conceded at the sentencing
hearing that Dennis White transferred his Glock to his son, Greg. (Thus assuming
that Dennis White owned only one Glock, an assumption which finds no support
in the evidence.) Maj. op. at 5-6 & n.2. But I would hold that defense counsel
conceded only that Dennis White had transferred a gun to his son. While I
certainly agree with the majority that courts are entitled to rely on concessions by
counsel, that principle surely demands that we be clear about what it is that
counsel has conceded. The majority offers one statement made by counsel at the
sentencing hearing with no context. Because of the uncertainties inherent in oral
remarks made in the crucible of an adversary hearing, it is only fair to look at the
context to be certain that we have interpreted this single remark correctly.
That context, to me, makes it an impermissible leap of faith to say that
counsel was conceding that the stolen gun was the same gun that Dennis White
had transferred to his son, Greg. The majority’s interpretation of counsel’s
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concession is fundamentally inconsistent with the position taken by counsel at the
hearing, as shown by the exchanges that followed directly after the truncated
quote on which the majority relies. The majority quotes one question from the
district judge and a one-sentence response by defense counsel:
The Court: I take it you don’t dispute that – maybe I shouldn’t – do
you dispute the information that the father transferred the gun to the
son?
Mr. Douglas [Defense Counsel]: I take it from the report and I would
not dispute that.
The dialogue continued:
The Court: Then the son reported stolen a nine millimeter Glock.
Mr. Douglas: That is right, but we don’t know whether that is the
Glock that he borrowed from his father. We do not know if his
father owned more than –
At that point, the judge interrupted counsel and asked if he had any evidence that
“he” (apparently referring to the father, Dennis White) owned more than one
Glock. Counsel responded, correctly, that the burden of proof was on the
government, not his client, and contended that the government “cannot meet its
burden without an improper assumption based on no evidence.”
Just moments later (apparently, it being four pages later in the transcript),
counsel again argued that the government had failed to offer evidence to support
its contention that the gun stolen from Greg White in 2006 was the offense gun
purchased by Dennis White in 1999. Counsel stated that the only government
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witness at the hearing had offered no testimony “that he asked Dennis or Greg . . .
whether they owned more Glocks or more firearms.” 5
Because I would read counsel’s statements in context, I would not find that
counsel had conceded that Dennis White had transferred the offense gun to Greg
White. But even if the majority’s reading were correct, the government still
produced no evidence that the stolen gun was the offense gun. As Mr. Cox’s
counsel pointed out, the government produced no evidence to support the
conclusion, other than the third-hand speculation contained in Exhibit 2. There is
no evidence that the stolen gun was the only gun, or the only Glock pistol, owned
by Greg White.
The conclusion that the pistol stolen from Greg White in 2006 was the
offense gun cannot be the result of probabilistic reasoning, as the majority claims.
If Greg White owned two Glocks, probabilistic reasoning would suggest a fifty
percent possibility that the stolen gun was the offense gun. Such an assumption is
insufficient to establish that the contention was more likely true than not true.
And if Greg White owned more than two Glocks, quite clearly the contention that
the stolen gun was the offense gun would be less likely to be true.
5
The judge told counsel that he could ask the agent that question. Counsel
did so, but the agent stated that because he had not been the agent assigned to the
investigation, he had no contact with either of the Whites.
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Defense counsel was indisputably correct when he argued to the district
court that the burden of proof was on the government. Mr. Cox had no obligation
to produce evidence that Greg White indeed owned more than one Glock. The
government asked the district court to adopt a finding which lacked support in the
evidence. In making that finding, the district court erred.
In United States v. Munoz-Tello, 531 F.3d 1174 (10th Cir. 2008), the
defendant had been convicted of transporting undocumented aliens after a tragic
accident in which four of the defendant’s passengers had been killed. The
government pressed for a sentencing enhancement based on the premise that the
defendant had recklessly created a substantial risk of bodily injury. The district
court agreed that the enhancement applied, basing his conclusion on, inter alia, a
finding that by overloading the vehicle, the defendant had adversely affected its
handling or maneuverability. Id. at 1182-83.
It may have been true in Munoz-Tello that overloading the vehicle had
adversely affected its handling or maneuverability, but there was no evidence to
support such a finding, so we reversed. Similarly, here it may be the case that the
stolen gun was the offense gun, but the evidence is insufficient to prove it.
The majority’s attempt to find support for its holding in a statement made
by Mr. Cox to investigators is unpersuasive to me because it rests on a credibility
finding made by the majority, a function which of course is reserved for the trial
court. As reflected in the PSR, Mr. Cox told an investigator that he had
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purchased the offense weapon for $100 in a transaction which occurred in the
parking lot of a service station. The district judge did not rely in any way on this
evidence; indeed, the judge did not even comment on this evidence. Nor did the
government make any argument to the district court regarding Mr. Cox’s account
of how he had acquired the offense gun.
Because Mr. Cox’s explanation of his purchase was neither the basis for
any argument by the government in the district court nor the subject of any
finding by the district court, the majority’s reliance on this evidence is
troublesome. Even more troubling is the majority’s characterization of Mr. Cox’s
account as “frankly implausible.” While I disagree with that characterization, the
more salient point for this court is that fact-finding, including of course the
decision whether to credit any specific evidence, is for the district court, not for
us.
The majority acknowledges that Mr. Cox’s account, if believed, would
show that the offense gun had not been acquired from the Whites. Maj. op. at 5. 6
Yet the majority also reasons that Mr. Cox’s account, “in conjunction with the
other evidence . . . makes it more likely than not that the gun was stolen . . . .”
Id. at 9. This conclusion is simply illogical if Mr. Cox’s account is believed.
6
Elsewhere in the opinion, however, the majority characterizes Mr. Cox’s
account as one that merely “differs somewhat from the government’s theory.”
Maj. op. at 9, n.4.
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Thus, it is clear that the majority’s reasoning depends on finding that Mr. Cox’s
account is not credible.
For the reasons stated, I must respectfully dissent. I would reverse and
remand for a new sentencing hearing.
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