United States v. Austin

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AHMAD AUSTIN, Defendant-Appellant.

No. 22-3040

United States Court of Appeals, Tenth Circuit

March 2, 2023

(2:21-CR-20012-HLT-TJJ-1) (D. Kan.)

Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT ^[*]

STEPHANIE K. SEYMOUR, CIRCUIT JUDGE

Ahmad Austin pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, he received a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing a firearm in connection with an aggravated assault. On appeal Mr. Austin contends that the district court clearly erred in applying § 2K2.1(b)(6)(B) because there is no reliable evidence to support the enhancement. We conclude there was sufficient evidence for the sentencing court to find, by a preponderance of the evidence, that the enhancement applied in Mr. Austin's case and we therefore affirm.

Background

In the early morning of September 8, 2020, Mr. Austin and his partner of twenty-four years, Jasmine Moten, were arguing loudly in their home in Lawrence, Kansas. Three of their children were asleep in the home. At some time around 6:00 a.m., Ms. Moten came into the room of her 15-year-old son ("A.A."), gave him her phone, and told him to call 911 because Mr. Austin had hit her with a gun. A.A. heard the front door shut and saw his parents leaving in his father's Dodge Charger through the window.

A.A. called 911 as instructed. Thereafter, Officer J. Risner and another officer were dispatched to the home where they interviewed A.A. Officer Risner indicated in his incident report that A.A. confirmed the basic facts described above. Officer Meghan Bardwell also visited the home and interviewed A.A. and his 12-year-old brother ("N.A."). During this conversation, which was captured on Officer Bardwell's lapel camera, A.A. again confirmed the basic facts of the incident, including that his mother said Mr. Austin had a gun. He stated, "I think she said she got hit with it." Aplt. Supp. App., vol. II at 7:01-7:03 (Officer Bardwell's Body Camera Footage). When Officer Bardwell asked if Mr. Austin had done this before, A.A. responded that he had not hit her with a gun before. Officer Bardwell then recounted the events as she understood them: "So this morning she steps in and says, 'Call the police your dad hit me with a gun.'" Id. at 7:38-7:43. A.A. affirmatively nodded. After additional questioning, Officer Bardwell again recounted the events: "At about five or six you hear them yelling . . . and then mom pushes the door open and says, 'Hey call the cops your dad hit me with a gun.' And then she just walks out of your room." Id. at 9:00-9:13. A.A. again gave multiple affirmative nods, and responded, "Yeah." Id. at 9:13. A.A. told Officer Bardwell that he was "confused, kind of scared" and that his mother appeared scared and did not want to leave with his father. Id. at 7:10-7:18, 7:58-8:03. A.A. also described the firearm his father had access to as a silver Smith &Wesson handgun with black grips.

Officer Bardwell asked N.A. about the argument as well. N.A. indicated that while his parents' arguments were not typically violent, he felt like this particular argument was or could have been "super violent." Id. at 2:11-2:20. N.A. told Officer Bardwell that Ms. Moten went into A.A.'s room to call 911 and spoke to A.A. before leaving.

That same morning, police were notified that four shots were fired from a silver Dodge Charger at a nearby apartment complex. Officers located the vehicle, and a traffic stop revealed the occupants to be Mr. Austin and Ms. Moten. Officers observed a holster on Mr. Austin's waistband and located two spent shell casings in the vehicle. Officers subsequently interviewed Ms. Moten. She admitted that Mr. Austin came home intoxicated early that morning and that there was some pushing. However, she denied that Mr. Austin hit her with a firearm. She also denied the existence of the firearm and denied discarding it from the vehicle and repeatedly stated that she did not want to be involved. Officers observed some bruising or marks on her cheeks and took photographs which were later admitted into evidence.

Officers returned to the apartment complex where the shots had been fired and found a silver Smith &Wesson handgun with black grips. Testing ultimately confirmed that Mr. Austin's DNA was on the gun. In addition, a magazine was found in Mr. Austin's home. Shell casings matching those recovered from the Dodge Charger were also found in his bedroom.

Because Mr. Austin was a convicted felon, it was unlawful for him to possess a firearm. He pled guilty to being a felon in possession in violation of 18 U.S.C. § 922(g)(1).^[1]

The Sentencing Hearing

In February of 2022, the district court held a sentencing hearing during which Mr. Austin objected to the four-level enhancement under § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony-to wit, aggravated assault. Officer Bardwell testified at the hearing and her police report and body camera footage were admitted into evidence. Although Officer Risner did not testify, his police report was admitted into evidence. Neither Mr. Austin, Ms. Moten, nor A.A. testified. However, Mr. Austin did make a statement to the court in which he denied hitting Ms. Moten with the gun but admitted to ownership, possession, discharge, and disposal of the weapon.

In overruling Mr. Austin's objection to the enhancement, the district court provided a lengthy and detailed explanation, including the following statements:

A.A. reported that he was in fear for his safety and the safety of his mother due to his mother's statements before she left.... This interaction is recorded in Exhibit 3 which the court reviewed. The court observed A.A.'s demeanor throughout that interview and contact with Officer-now-Detective [Bardwell].

....

The court credits the testimony of Officer [Bardwell] and Agent Padilla and their repeated contemporaneous and consistent statements of A.A. A.A. consistently maintained that he heard his parents fighting and that his mother asked him to call 911 after Mr. Austin hit her with a firearm. He described the firearm, admitted that he was scared and concerned, and had no reason or motivation to lie.

The court finds A.A.'s statements and the officer's corresponding testimony and reports credible. A.A.'s statement is also corroborated to some extent by the pictures and the marks on Ms. Moten's cheek. The court recognizes that the [body camera footage shows A.A. stating] that, quote, "I think she said she got hit with it," but Detective [Bardwell] repeated the same question several times and each time he confirmed that Ms. Moten had said she had been hit with a firearm. This is also consistent with the other reports by the initially responding officers in this case.

The court does not credit Ms. Moten's statements to the officers about this issue during her interview. She was willing to admit conduct that would not place Mr. Austin in trouble but denied all information that could get him in trouble. She denied the firearm even though police subsequently located it with his DNA at the apartment complex they were seen exiting. Mr. Austin was also arrested with an empty gun holster. She admitted some pushing but denied that Mr. Austin hit her with the firearm. She would not answer questions about the travel route and repeatedly stated that she did not want to get involved.

Ms. Moten and Mr. Austin have four children together and have been in a relationship for 24 years. She had a motivation to protect him while talking with the officers. Mr. Austin identifies no motive or explanation as to why she would lie when talking to her son or why A.A. would lie to police. The court also notes the reports about witness intimidation and notes that Ms. Moten was involved .... This further undercuts her credibility ....

For all these reasons, the court finds that the government has established by a preponderance of the evidence that Mr. Austin used or possessed the firearm in connection with the felony offense of aggravated assault against Ms. Moten.

Rec., vol. III at 78-81.

Based on this ruling, the district court calculated the guideline range to be 21 to 27 months and ultimately sentenced Mr. Austin to twenty-four months in prison.

Standard of Review

"We review the district court's application of the Sentencing Guidelines for abuse of discretion. In applying that standard, we review questions of law de novo and factual findings for clear error." United States v. Stein, 985 F.3d 1254, 1266 (10th Cir. 2021) (internal quotation marks and citation omitted). "In particular, we review the application of § 2K2.1(b)(6)(B) in a given case for clear error." United States v. Leib, 57 F.4th 1122, 1125-26 (10th Cir. 2023).^[2] To find clear error, "we must be convinced that the sentencing court's finding is simply not plausible or permissible in light of the entire record on appeal, remembering that we are not free to substitute our judgment for that of the district judge." United States v. Garcia, 635 F.3d 472, 478 (10th Cir. 2011) (internal quotation marks omitted).

Discussion

Mr Austin argues the district court impermissibly applied § 2K2.1(b)(6)(B) based on unreliable double hearsay. "While the due process clause protects a defendant's right not to be sentenced on the basis of materially incorrect information, hearsay statements may be considered at sentencing if they bear 'some minimal indicia of reliability.'" United States v. Cook, 550 F.3d 1292, 1296 (10th Cir. 2008) (quoting United States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995)); see also U.S.S.G. § 6A1.3(a) (stating that sentencing courts may consider...