UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PAUL LUJAN, Defendant - Appellant. No. 22-2157 (D.C. No. 1:20-CR-01691-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and EID , Circuit Judges.

________________ _________________ Defendant Paul Lujan escaped from the Dierson Residential Reentry Center on July 23, 2020. Lujan pleaded guilty to one count of escape. At sentencing the parties disputed whether Lujan had committed stat e offenses while on escape, rendering him ineligible for a four-l evel reduction in offense level. The district court held a hearing to determine whether the United States ha d established by a pr eponderance of the evidence that Lujan committed the alleged offe nses. At the heari ng the district court

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered submitted with out oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### May 1, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 12 heard the testimony of the responding officer and the statements of two victims. The district court subsequently de nied the four-level reduction. In this case, we conclude that the district court did not err in finding the testimony given at the sentencing hearing reliable enough to establish that Lujan committe d state offenses while on escape status. Accordingly, we affirm.
I. On April 11, 2018, Paul Lujan was convi cted of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). He was sentenced to sixty months’ imprisonmen t. On June 29, 2020, the Bureau of Prisons (“BOP”) placed Lujan at the Dierse n Charities, Diersen Residential Reentry Center (“RRC”) to serve out the remainder of his sentence. On July 23, 2020, Lujan, who was still in the custody of the BO P, walked away from the RRC without permission. On September 10, 2020, a gr and jury indicted Lujan on one count of escape, in violation of 18 U.S.C. § 751(a). Lujan was apprehended on January 19, 2021. He pleaded guilty to the indictment without the benefit of a plea agreement on June 22, 2022. A United States Probation Officer prepar ed a presentence report (“PSR”) in anticipation of sentencing. The initial PSR calculated Lujan’s base offense level at 13, pursuant to U.S.S.G. § 2P1.1(a)(1). The PSR reduced Lujan’s offense level by six levels—two for acceptance of respons ibility and four pursuant to U.S.S.G. § 2P1.1(b)(3), the escape guideline, because Lujan escaped from a “non-secure custody of a community corrections center, community treatment cen ter” or “halfway Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 23 house.” R. Vol. II at 17. The reductions left Lujan with a total offense level of 7 and a criminal history category of V, resulting in a Guideline range of twelve to eighteen months’ imprisonment. The government objected to the calculation of Lujan’s o ffense level. It argued that Lujan was disqualified from the four-l evel reduction under § 2P1.1(b)(3) because he had committed state offenses while escaped from custody. The government included in its objection (1) a state arrest warrant detailing Lujan’s robbery of two people at gunpoint, (2) Lujan’s booking sheet, (3) related court papers, (4) written witness statements, and (5) th e order dismissing the state case for failure to secure appearance of the defendant. Lujan opposed the government’s objection on the grounds that he was not convicted of any cr ime, and that the witn ess statements were unreliable hearsay. The Pr obation Officer filed a second PSR in response to the objection that removed the four-point redu ction, changing Lujan’s ultimate offense level to 11. With an offens e level of 11 and a criminal history category of V, Lujan’s Guideline range subsequently became twenty-four to thirty months’ imprisonment. The district court held a sentencing hear ing on October 11, 2022, to resolve the dispute. The government called Detectiv e Natasha Nieto of the Bernalillo County Sheriff’s Office to testify about her inve stigation into the alleged crimes committed by Lujan. It also submitted an audio r ecording containing the alleged victims’ Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 34 statements to Detective Nieto. The statements of the tw o alleged victims, M.O. and I.R., and Detective Nieto’s testimony pieced together the following picture: 1 Between three-thirty and four in the morning on August 26, 2020, M.O. and I.R. were stopped at an ATM on 4th Street in Albuquerque, New Mexico, to get money for th e casino when a car pulled up and Defendant Paul Lujan—also known as, “Chubbs”—got out of the vehicle. M.O. recognized Defendant as her cousin and greeted him. Four other people were with Defendant in the car. One of the women who was with Defendant needed to use the restroom, so Defendant and his four companions followed M.O. and I.R. back to M.O.’s nearby residence . . . Not long after, Defe ndant pulled out a gun and pointed it at M.O. Defendant instructed M.O. and I.R. to empty out their pockets. Defendant then told I.R. to unplug M.O.’s television a nd carry it outside to M.O.’s car. After placing the televisi on in the car, I.R. returned to the living room. Once I.R. was back in the living room, Defendant ordered M.O. and I.R. to lie on their stom achs and put their hands behind their backs. Defendant and another ma n tied I.R.’s and M.O.’s hands. Defendant then told M.O. and I.R. that if he saw any shadows following him, he would “blast” them. Defenda nt took M.O.’s car, wallet, car keys, television, shoes, watches, dartboard, and cell phone; Defendant also took I.R.’s two ce ll phones and his wallet. R. Vol. I. at 70–71. Detective Nieto also testified that it was not until about thirteen hours later that a call was ma de to the police, and that it was either M.O.’s father or grandfather who made the call. M.O. and I.R. did not call the police because they feared retaliation from the robbers and b ecause their cell phones had been stolen. Detective Nieto’s testimony was primarily a recounting of what M.O. and I.R. stated in the audio recordings. The audio record ing also captured officers’ discovery of knotted television cords at M.O.’s residence, which M.O. stated were the cords that

1 These facts are taken from the dist rict court’s “Memorandum and Order Resolving PSR Objection and Setting Defenda nt’s Guidelines Sentencing Range.” Neither party disputes the district court’ s characterization of the content of the testimony. R. Vol. I at 65–72. Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 45 Lujan and another man used to tie her up. Detective Niet o obtained an arrest warrant for Lujan based on M.O.’s and I.R.’s statements. Lujan wa s subsequently arrested. The district court found that Detective Nieto’s testimony and the statements of the two victims had sufficien t indicia of reliability to support a finding by a preponderance of the evidence that Luja n committed the state offenses while on escape status. The district court declined to apply the four-level reduction to Lujan’s base offense level under § 2P 1.1(b)(3) and sentenced Lujan to a term of forty-two months’ imprisonment. Lujan timely appealed on the basis that th e statements before the district court were unreliable hearsay.
II. Section 2P1.1(a)(1) provides an offe nse level of 13 for a defendant who escapes from custody or confinement “by virtue of an arrest on a ch arge of felony, or conviction of any offense.” The offense level is decrea sed by four levels “if the defendant escaped from the non-secure cust ody of a community corrections center, community treatment center, ‘halfway house,’ or si milar facility . . . [ p ] rovided [] that this reduction shall not apply if the defendant, while away from the facility, committed any federal, state, or local o ffense punishable by a term of imprisonment of one year or more.” U.S. S.G. § 2P1.1(b)(3) (emphasis in original). The standard for factual findings that incr ease the Guideline range of a sentence is preponderance of the evidence. United States v. Robertson , 946 F.3d 1168, 1171 (10th Cir. 2020). Lujan asserts that the district court e rred in considering the statements of M.O. and I.R. and the testimony of Detectiv e Nieto, which he argues were unreliable Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 56 hearsay. 2 “While the due process clause pr otects a defendant’s right not to be sentenced on the basis of mate rially 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)). Corroborating evidence “is often key to determining whether a statemen t is sufficiently reliable.” United States v. Ruby , 706 F.3d 1221, 1229 (10th Ci r. 2013). Lujan argues th at the government simply relied upon the alleged victims’ unsworn statements and Detective Nieto’s summary of these statements, and th at there was no independent corroborating evidence that ties him to the state offe nses he allegedly committe d while on escape status. Lujan relies largely on United States v. Fennell , 65 F.3d 812 (10th Cir. 1995), to argue that the hearsay before the district court was unreliable. In Fennell , we determined that the evidence before the district court wa s insufficient to apply a sentence enhancement for posse ssion of a machine gun. Id. The district court had relied solely on an unswo rn telephone statement by the defendant’s estranged girlfriend to a probation officer in which she alleged that Fennell had fired his machine gun at her. Id. at 813. We found her statem ent “insufficiently reliable because the girlfriend did not prepare a swor n affidavit, the inte rviewing officer was

2 The parties disagree on the standard of review. Luja n contends that we must review the issue de novo, while the government urges us to review for clear error. We need not determine which standard of re view applies in this case because Lujan’s argument fails under either standard. Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 67 not able to observe her demeanor, and th ere was no other corroborating evidence.” Ruby , 706 F.3d at 1229 (characterizing Fennell ). The evidence here is far more reliable than that in Fennell . First, while Lujan emphasizes that Detective Niet o was simply repeating what M.O. and I.R. told her, he neglects to acknowledge th at M.O. and I.R. were in terviewed individually and corroborated each other with detailed and consistent accounts. Second, there is no indication that M.O. or I.R. had reason to lie, unlike Fe nnell’s estranged girlfriend, particularly considering that neither of th em placed the call to the police. Third, Detective Nieto had the opportunity to obser ve the victims and form her own opinion regarding their veracity , unlike the officer in Fennell

. See also United States v. Farnsworth , 92 F.3d 1001, 1010 (10th Cir. 1996) (finding hearsay evidence distinguishable from Fennell when the arresting officer t ook the victim’s statement in person). Fourth, when officers responded to M.O.’s residence, not only were M.O.’s television, car, and cell phone missing, but an officer recovered the knotted television cords used to tie M.O.’s hands. Lujan attempts to distinguish the presen t case from others in which we found appropriate indicia of reliability. For example, he argues that Cook is dissimilar because in that case, (1) th e defendant was apprehended s oon after the crime, (2) the weapon used by the defendant was recovered, and (3) the victims ca lled the police. 550 F.3d at 1294–97. He points out that none of those factor s is present in his case. We are unpersuaded for two reas ons. First, the factors that Lujan makes much of do not bear on the reliability of the hearsay evidence. The victims in the present case Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 78 did not call 911 because Lujan had threatened to kill them, and because he had stolen their phones. This does not make their statements less re liable, especially considering that the time between the r obbery and the 911 call was a mere thirteen hours. Second, in Cook we distinguished Fennell explicitly on th e basis that the responding officers had the opportunity to obs erve the witnesses’ demeanor, and that the witnesses’ accounts corroborated each other and remained consistent. Cook , 550 F.3d at 1296. Those factor s are fully present here. Lujan similarly directs us to United States v. Leib , 57 F.4th 1122 (10th Cir. 2023), arguing that the present case does not have as many corroborating circumstances. In Leib , we found that the defendant ’s mother’s statement bore sufficient indicia of reliability. But Leib does not set the floor for what may constitute the minimum indicia of reliability. Rather, in Leib we simply stated that “the totality of the circumst ances [] corroborated Norma Leib’s [unsworn] statement that Mr. Leib shot into the floor. Fennell , then, is distinguishable .” 57 F.4th at 1129. The district court, theref ore, did not err when it relied on Detective Nieto’s testimony and the statements of the two vic tims to determine that the United States established by a preponderance of the evid ence that Lujan committed state offenses while escaped from BOP custody. 3 The four-level reducti on under § 2P1.1(b)(3) was properly denied.

3 Lujan also argues that the evidence befo re the district court was not reliable because the government never actually identif ied Lujan as the assa ilant. The district court found that the witnesse s “all independently identifie d Defendant Paul Lujan as the man who committed the alleged state o ffenses on August 16, 2020.” R. Vol. I Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 89 IV. For these reasons, we affirm the j udgment of the district court.

Entered for the Court

Allison H. Eid Circuit Judge

at 70. Lujan disputes the district cour t’s finding and conte nds that consistent references by Detective Nieto, M.O., and I.R. to “Chubs,” M.O.’s “cousin,” or “Paul” do not confirm that Lujan was the assailan t, only that “they were consistent in referring to that individual by t hose nouns.” Aplt. Br. at 13. Yet, Lujan’s first name is Paul, he is M.O. ’s cousin, and he goes by the ga ng name “Chubbs.”. R. Vol. II at 15. Lujan’s argument that Detective Nieto and the two victims did not identify him is meritless and we can find no error in the district court’s determination. Appellate Case: 22-2157 Document: 010111041346 Date Filed: 05/01/2024 Page: 9