PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. STEVEN ANDERSON, Defendant - Appellant. No. 21-2151

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:20-CR-00897-KWR-1)

________________ _________________ Martín Juárez, Assistant Federal Public Defe nder, Office of the Fede ral Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. Fred J. Federici, Assistant United States Attorney (Ale xander M.M. Uballez, United States Attorney, with him on the brief), Office of th e United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

________________ _________________ Before TYMKOVICH , SEYMOUR , and PHILLIPS , Circuit Judges.

________________ _________________ SEYMOUR , Circuit Judge.

________________ _________________ In December of 2019, Mr. Steven Anders on was stopped by police after a woman complained he was harassing her and an offi cer observed him walking in the street in violation of a city ordinance. Mr. Anderson provided the officers w ith false identifying FILED United States Court of Appeals Tenth Circuit 

### March 14, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 12 information and was arrested for concealing his identity. During a search incident to arrest, law enforcement found a firearm and a crystal-like substance determined to be methamphetamine on his person. Following a failed motion to suppress, Mr. Anderson pled guilty to being a felon in possession. At sentencing, the districtcourt applied a fourlevel enhancement under U.S.S.G. § 2K 2.1(b)(6)(B) for possessing a firearm in connection with another felony offense and sentenced Mr. An derson to fifty-one months in prison. On appeal, Mr. Anderson challenges the de nial of his motion to suppress, arguing that law enforcement lacked reasonable suspicion to stop him and that the firearm was discovered in violation of his Fourth Amendmen t rights. He also argues the district court erroneously applied § 2K2.1(b)(6)(B), primar ily because it relied on an uncorroborated police report not admitted in to evidence. We hold that law enforcement had reasonable suspicion to stop Mr. Anderson and that he failed to show a Fourth Amendment violation was the but-for cause of the discovery of the fire arm. We also hold that the district court did not err in applying the § 2K2.1(b)(6)(B) e nhancement. Accordi ngly, we affirm Mr. Anderson’s conviction and sentence. Background On December 17, 2019, Sergeant Ignas Dani us was patrolling a high crime area in Albuquerque, New Mexico and was flagge d down by a woman pointing toward Mr. Anderson. The woman told Sg t. Danius that Mr. Anders on was harassing her. Rec., vol. I at 135. Sgt. Danius began to follow Mr. Anderson, whom he observed walking in the street. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 23 Sgt. Danius called for backup and approached Mr. Anderson once other officers arrived. Sgt. Danius aske d Mr. Anderson whether he had identification, to which Mr. Anderson said no. Id. at 137. Sgt. Danius then as ked Mr. Anderson if he had any weapons on him. Id. Mr. Anderson initially did not re spond but upon furt her questioning stated he did not have any weapons. Id. In part because Mr. Anderson appeared particularly nervous, raised his hands, a nd was wearing a bulky j acket, Sgt. Danius decided to conduct a pat-down for weapons. Mr. Anderson was noncompliant and was therefore handcuffed. Sgt. Danius was eventu ally able to conduct the pat-down but found
no weapons. In response to further questioning, Mr. A nderson repeatedly provided Sgt. Danius with false identifying information, including a false name and a social security number belonging to another person. Id. at 138. Sgt. Danius arrested Mr. Anderson for concealing his identity. Law enforcement later ran Mr. Anderson’s fingerprints, determined his actual identity, and discovere d he had two outstanding felony arrest warrants. Rec., vol. II at 66. During a search incident to arrest, Sgt. Danius found a stolen, loaded handgun in Mr. Anderson’s waistband a nd baggies filled with a cr ystal-like substance. Id. Sgt. Danius later found a similar baggie in Mr. Anderson’s sock. Id. Based on Sgt. Danius’s training and experience, he identified the substance in the baggies to be methamphetamine. Id. This was confirmed by a field test of the substance from Mr. Anderson’s sock, which returned positive for methamphetamine. Id. Mr. Anderson was Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 34 charged in state court with trafficking me thamphetamine, among other crimes. Those charges were dismissed when he was indicted in this case for being a felon in possession. Mr. Anderson filed a motion to suppress, whic h the district court denied. He then entered a conditional guilty plea reserving his right to appeal the denial of his suppression motion. At sentencing, Mr. Anderson objected to the application of a four-level guideline enhancement under § 2K2.1(b)(6)(B) for posse ssing a firearm in connection with another felony offense—to wit, trafficking methamph etamine. He argued there was insufficient evidence to support the enha ncement. The district c ourt denied the objection and sentenced Mr. Anderson to fift y-one months’ imprisonment. The Motion to Suppress In his suppression motion, Mr. Anderson ar gued that Sgt. Danius improperly stopped him under Terry v. Ohio , 392 U.S. 1 (1968), becau se the officer lacked reasonable suspicion that he committed a crime, particularly criminal harassment. He argued there was no evidence of a pattern of conduct that would have caused a reasonable person substantial emotional di stress, as required by the relevant New Mexico statute. See N.M. Stat. Ann. § 30-3A-2. The district court found that Sgt. Danius credibly testified that the woman, who appeared frighten ed, concerned, and shaken up, flagged Sgt. Dani us down and pointed toward M r. Anderson. According to Sgt. Danius, the woman then said, “He’s hara ssing me. He’s not leaving me alone. He’s asking me for my number. He’s asking to da te him. If I have a boyfriend, and then he asked me for money.” Rec., vol. I at 141. Based on this testimony, the court held Sgt. Danius reasonably suspected Mr. An derson of committing harassment. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 45 The court also found that “Sgt. Danius credibly testified he observed [Mr. Anderson] walking in the street,” id. , and held that Sgt. Dani us had reasonable suspicion to stop him for violating the city ordina nce prohibiting walki ng “along or upon” a roadway when a sidewalk is available, see Albuquerque Code Ordinance § 8-2-7-7(A). 1
Mr. Anderson did not contend otherwise. Mr. Anderson did argue that Sgt. Danius lacked reasona ble suspicion to conduct the pat-down frisk, but he did not sp ecifically argue that the frisk resulted in the discovery of his firearm. The district co urt found that Sgt. Da nius “reasonabl y and credibly believed that [Mr. Anderson] was abnor mally nervous and ha d his hands raised.” Rec., vol. I at 142. It also noted that Mr . Anderson fled from the scene of the alleged harassment, did not have identification, did not answer when first asked if he was armed, repeatedly stated he did not know why he was be ing stopped, and was w earing multiple laye rs of clothing. The court held Sgt. Danius ha d reasonable suspici on to frisk Mr. Ande rson for weapons. The court further noted that no evidence was found during the pat-down , and held that the pat-down was not the but-for cause of the discovery of the fi rearm. The court therefore denied Mr. Anderson’s motion to suppress.
Standard of Review We review the denial of a suppression motion for clear error with respect to findings of fact and de novo with respect to the ultimat e question of reasonability. United

1 Concerning this jaywalki ng ordinance, Mr. Anderson argued the stop constituted selective enforcement in violation of his eq ual protection rights. The district court rejected this argument, and Mr. Ande rson does not renew it on appeal. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 56 States v. Gambino-Zavala , 539 F.3d 1221, 1225 (10th Cir. 2 008). Evidence is viewed “in the light most favorable to the government.” Id. Suppression arguments are preserved through “sufficiently definite, specific, detail ed and nonconjectural factual allegations.” Id. at 1227 n.2 (quoting United States v. Barajas-Chavez , 358 F.3d 1263, 1266 (10th Cir. 2004)). When a defendant fails to raise a particular supp ression argument in district court, the argument is waived absent a showing of good cause. See United States v. Warwick , 928 F.3d 939, 944 (10th Cir. 2019); Fed. R. Crim. P. 12(c)(3). Failure to show good cause precludes even plain error review. United States v. Bowline , 917 F.3d 1227, 1236–37 (10th Cir. 2019). A district court’s application of the senten cing guidelines is reviewed for abuse of discretion. United States v. Rodriguez , 945 F.3d 1245, 1248 (10th Cir. 2019). “In applying that standard, we review questions of law de novo and factual findings for clear error, ‘giving due deference to the district court’s applicati on of the Guidelines to the facts.’” Id. at 1249 (quoting United States v. Pentrack , 428 F.3d 986, 969 (10th Cir. 2005)). “In particular, we review the appli cation 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). We also review “a district court’s assessment of the re liability of evidence supporting a sentencing enhancement” for clear error. United States v. Martinez , 824 F.3d 1256, 1261 (10th Cir. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 67 2016). But see id. at n.6 (stating the abuse of di scretion standard may be more appropriate). 2
Discussion
A. Mr. Anderson’s Suppression Arguments On appeal, Mr. Anderson renews his argument s that Sgt. Danius lacked reasonable suspicion both to stop him for committing harassment and to conduct a pat-down frisk. He also raises new arguments, challenging the district court’s conclusions concerning reasonable suspicion to stop hi m for violating the jaywalking ordinance and the causal nexus between the pat-down and the firear m he sought to suppress. He does not, however, challenge the court’s factual findings. It is well settled that, notwithstanding the Fourth Amendmen t’s prohibition on unreasonable searches and seizures, “police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘m ay be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow , 490 U.S. 1, 7 (1989) (quoting Terry , 392 U.S. at 30). This is not “an onerous standard.” United States v. Simpson , 609 F.3d 1140, 1153 (10th Cir. 2010). Rather, “as long as [an officer] has a particularized and objective basis for suspecting an individual may be involved in cr iminal activity, he may initiate an investigatory detention even if it is more likely than not that the individual is not involved

2 The government argues that some of Mr. Anderson’s challenges to his sentence are unpreserved and should be reviewed for plain error. We need not address this argument because we conclude that Mr. An derson’s challenges would fail even if they were preserved. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 78 in any illegality.” United States v. Johnson , 364 F.3d 1185, 1194 (10th Cir. 2004). Furthermore, “an officer need not rule out the possibility of innocen t conduct, or even have evidence suggesting a fair pr obability of criminal activity.” United States v. Esquivel-Rios , 725 F.3d 1231, 1236 (10th Cir. 20 13) (internal quotation marks and citations omitted).

a. Reasonable Suspicion for the Stop The district court held that Sgt. Dani us reasonably suspected Mr. Anderson of harassment and jaywalking. Because reasonable suspicion of either offense is sufficient to justify a Terry stop, we need only determine whet her Sgt. Danius reasonably suspected that Mr. Anderson committed one of these offenses. For the first time on appeal, Mr. Anderson asserts Sgt. Danius lacked reasonable suspicion that he violated the jaywalking ordinance. Specifically, he argues the ordinance does not proscribe walking on a road shoulder, wh ere he was walking. Mr. Anderson acknowledges that he did not ma ke this specific argument below but argues that the district court committed plain error. 3 Mr. Anderson’s failure to raise this argument below constitutes waiver, 4 and he does not attempt to show good cause.

3 He also argues that, based on Yee v. Escondido , 503 U.S. 519, 5 34 (1992), he is permitted to raise this argument on appeal because it was encompassed by his general argument that there was no reasonable suspici on to stop him. As the government points out, however, we have reject ed this construction of Yee

. See Parker Excavating, Inc. v. Lafarge West, Inc. , 863 F.3d 1213, 1223 (10th Cir. 2017). 4 The government cont ends this new argument is al so precluded by the conditional plea agreement, which gives Mr. Anderson th e right to appeal the suppression decision only on grounds argued in district court. We need not decide th is issue because we conclude the argument is waived. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 89 Nonetheless, Mr. Anderson’s argument would fa il even under plain error review because it relies on a faulty reading of the or dinance, which prohibits “walk[ing] along or upon an adjacent roadway” if a sidewalk is prov ided. § 8-2-7-7(A) (emphasis added). Because Mr. Anderson’s new argument fa ils, we are not required to decide whether there was reasonable suspicion that he committed harassment in violation of the New Mexico statute. We nonetheless conc lude, on de novo review, that there was reasonable suspicion to stop Mr. Anderson to investigate the alleged harassment. First, the woman who flagged Sgt. Danius down specifically claimed Mr. Anderson was harassing her. Second, the fact that she fl agged Sgt. Danius down conveys she was concerned enough to seek police assistance and perhaps had significant concerns about her safety. Similarly, Sgt. Danius’s observation of the woman’s demeanor supports a reasonable suspicion that Mr. Anderson’s acti ons were causing her emotional distress. Finally, the statement “He’s not leaving me alone” indicates Mr. Anderson was engaging in some sort of repetitive conduct and s upports a reasonable suspicion there was the requisite pattern of conduct. At this stage, Sgt. Danius was not required to have all the information and evidence ne eded to convict Mr. Ande rson of harassment. The information available to him wa s sufficient to meet the low reasonable suspicion bar, and thus the district court did not err in finding there was reasonable suspicion of harassment. 5

5 Mr. Anderson argues the district court vi olated Fed. R. Crim. P. 12(d) by not explaining why it rejected his argument on this issue. To the contrary, the court recounted many facts that “a mply support a reasonable susp icion of harassment.” Rec., vol. I at 141. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 910 Therefore, Sgt. Danius did not violat e Mr. Anderson’s Fourth Amendment rights by initiating a Terry stop.
b. The Pat-Down Frisk During an investigative stop, an officer may conduct a limited search for weapons if “a reasonably prudent man in the circumst ances would be warranted in the belief that his safety or that of others was in danger.” Terry , 392 U.S. at 27. The parties dispute whether Sgt. Danius had the reasonable susp icion necessary to conduct the pat-down frisk of Mr. Anderson. We need not decide this issue because Mr. Anderson has failed to show there was a causal nexus between the pat-down and the di scovery of the firearm. See United States v. Goebel , 959 F.3d 1259, 1268 (10th Cir. 2020); United States v.
Nava-Ramirez , 210 F.3d 1128, 1131 (10th Cir. 2000 ) (defendant bears the burden of showing a nexus between the alleged vi olation and the challenged evidence). Mr. Anderson argues that the pat-down prol onged the stop and led to the discovery of the firearm. An unr easonably prolonge d detention is unconstitutional. United States v. Samilton , 56 F.4th 820, 827 (10th Cir. 2022). Ho wever, even if a defendant shows that a detention was impermissibly prolonged, evidence will onl y be suppressed if he can “establish a causal link between the viola tion and the discovery of the contested evidence.” Goebel , 959 F.3d at 1268. “Evidence will not be suppressed as fruit of the poisonous tree unless an unlawful search is at least the but-for cause of its discovery.” United States v. Chavira , 467 F.3d 1286, 1291 (10th Cir. 2006) (emphasis in original). We agree with the district court and th e government that Mr. Anderson failed to show a causal nexus between the pat-down and the discovery of the firearm. Critically, Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1011 no evidence was found during the pat-down. The firearm was instead found in a search incident to Mr. Anderson’s arrest for concealing his identity. It is undeniable that the frisk prolonge d the stop. But Mr. Anderson would have been arrested and the gun woul d have been discovered regard less of the pat-down. Sgt. Danius asked Mr. Anderson if he had identif ication before initiating the pat-down. In fact, body camera footage shows Sgt. Danius asked this question within about thirty seconds of getting out of his vehicle and approaching Mr. An derson. It thus appears Sgt. Danius was interested in ascertaining Mr. Anderson’s identity from the inception of the stop. Moreover, there is no evid ence to suggest that Sg t. Danius’s reasons for continuing to inquire into Mr. Anderson’s identity were derived from the pat-down. It is well-established “that questio ns concerning a suspect’s identity are a routine and accepted part of many Terry stops.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. , 542 U.S. 177, 186 (2004). This questioning allows law enforcement to determine whether the suspect has any outstanding warrants or a history of violence or mental illness and helps officers a ssess personal and public safety. Id. Indeed, Sgt. Danius testified at the suppression hearing that identifying involve d parties is “police work 101.” Rec., vol. IV at 41. Sgt. Dani us was also entitled to request Mr. Anderson’s identification to cite him for viol ating the jaywalking ordinance. Notably, Mr. Anderson does not argue that anything about the pat-down led him to repeatedly lie about his identity . He was a felon in possessi on of a loaded firearm with outstanding arrest warrants. Being truthful ab out his identity was certa in to lead to an Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1112 arrest and further charges, and his incentives to conceal his identity were not altered by any extension of the stop required to conduct the frisk. For these reasons, we are not persuaded th at the pat-down was the but-for cause of the discovery of the firearm.
B. Sentencing Enhancement At sentencing, Mr. Anderson objected to the application of the § 2K2.1(b)(6)(B) enhancement for possessing a fire arm in connection with anothe r felony. He argued there was insufficient eviden ce to find that he po ssessed methamphetamine. 6 The district court denied Mr. Anderson’s objectio n, holding that the government met its burden in proving the enhancement applied by a preponderance of the evidence . In doing so, it cited the attachments to the government’s senten cing memorandum including the criminal complaint, a police report auth ored by Sgt. Danius, and the related state indictment. Id. at 116. Of importance to the court, the police report stated that the substance found in Mr. Anderson’s sock tested positive for metham phetamine and that Sg t. Danius observed evidence consistent with narcotics trafficking. Id. The court also highlighted that Mr. Anderson had been charged with drug traffick ing in state court in connection with the instant arrest. Id.

6 Mr. Anderson also argued th e government violated Fed. R. Crim. P. 16 and the district court’s discovery order by faili ng to produce additional evidence of methamphetamine possession. The district court denied Mr. Anderson’s oral motion because he did not file a written motion even though Probation had made clear in the PSR disclosed months prior that it wa s recommending the enhancement. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1213 On appeal, Mr. Anderson challenges the enhancement on multip le grounds. He begins by arguing that the government provide d inaccurate information to the district court because the prosecutor erroneously st ated at sentencing that testimony about methamphetamine was given at the prelim inary and suppression hearings. But Mr. Anderson did not object to the misstatement a nd there is no evidence that it was material to the district court, which did not men tion any such testimony when denying the objection or otherwise. He similarly contends the district court erred in recounting th e information in the police report. The court said Sgt. Danius st ated in the report that “possession of multiple packaging materials (clear pl astic baggies) and containers (black box) as well as individually packaged narcotics was consiste nt with narcotics sales and trafficking.” Id. The court continued: “ In addition , Mr. Anderson . . . was in possession of drug paraphernalia, as indicated in the report.” Id. (emphasis added). Mr. Anderson argues that the police report does not mention paraph ernalia other than the clear plastic baggies and black box. However, the government aptly points out that the police report identifies “another small clear container” as “drug paraphernalia.” Rec ., vol. II at 66. Furthermore, a reading of the sentencing transcript alon gside the police report makes clear that the court was referencing two separate statemen ts in the police report: one describing Mr. Anderson’s possession of drug paraphernalia and one drawing the conclusion that the paraphernalia was consistent with drug traffick ing. There is no indication that the district court was relying on evidence that di d not exist or was not presented. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1314 Mr. Anderson next argues it was improper for the district court to rely on the state charge because it was dismissed. But M r. Anderson is not entitled to a favorable inference from this dismissal. See United States v. Farnsworth , 92 F.3d 1001, 1005 n.2, 1010 (10th Cir. 1996) (referencing dismissed state charges in upholding the district court’s application of § 2K2.1(b)(6)(B) 7 ); Gambino-Zavala , 539 F.3d at 1230 n.3 (sentence can be enhanced on the basis of uncharge d or acquitted conduct); United States v. Ruby , 706 F.3d 1221, 1230 (10th Cir. 2013) (ac quittal in state court under the beyond a reasonable doubt standard bears little weight on whether the preponderance standard can be met at federal sentencing). In fact, the PS R states the charges were dropped due to the instant federal case. Most notably, Mr. Anderson argues for th e first time that it was improper for the court to rely on a police report not adm itted into evidence without specifically determining that it was reliable. In doin g so, Mr. Anderson relie s on our unpublished decision in United States v. Padilla , 793 F. App’x 749 (10th Cir. 2019). There, the defendant’s offense level was increased based on information in a police report that was not admitted into evidence or supp orted by corroborating evidence. Id. at 762. We held the district court was required to “make an on-the-record, indivi dualized reliability assessment” before relying on the report. Id. However, we explained that a sentencing

court can rely on information in an unadmitted police report if the record contains

7 Section 2K2.1(b)(6)(B) was previously numbered 2K2.1(b)(5). Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1415 corroborative evidence and the relevant information is su mmarized somewhere in the record (e.g., the PSR). Id. at 758 n.5. Although Padilla is non-binding, it is also eas ily distinguishable from the instant case in two material ways. First, the police report in Padilla was not part of the record at all and had not been di sclosed in discovery. Id. at 752. Here, the police report and the criminal complaint were exhi bits to both the government ’s opposition to the motion to suppress and its sentencing memorandum. The government also submitted the state indictment charging Mr. Anderson with traffi cking methamphetamine as an exhibit to its sentencing memorandum. Alt hough none of these docum ents were admitted into evidence at a hearing, they were part of the record an d Mr. Anderson had the opportunity to test the reliability of the police report at the suppression hearing by cross examining Sgt. Danius. Second, the police report here is strong ly corroborated by Sgt. Danius’ body camera footage, which was admitted into evidence at the su ppression hearing. The video depicts officers recovering a substance stored in the manner described in the report. Consistent with the report, Mr. Anderson is recorded in the video claiming the alleged drugs were fake. The video also includes audio of Mr. Anderson admitting the substance from his sock “may be real,” which suppor ts application of the enhancement. The veracity of the police report is further supported by the dist rict court’s repeated finding that Sgt. Danius was a credible witness. Although police reports are not inherently reliable, see Ruby , 706 F.3d at 1230, the police report here has significant indica of Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1516 reliability and allowed the distri ct court to properly determin e, by a preponderance of the evidence, that Mr. Anderson was engaged in drug trafficking. Importantly, Mr. Anderson did not challenge the reliability of the police report in district court. Rather, he argued instead that the government’s exhibits were not evidence, did not provid e enough information, were not subject to cross examination, and omitted evidence favorable to Mr. Anderson. We recently held in United States v. McDonald , 43 F.4th 1090, 1096 (10th Cir. 2022), that Padilla was “incorrect” in concluding that our prior caselaw determined the issue of “whether a mere objection to the reliability of the evid ence in the PSR is sufficient to trigger a district c ourt’s fact-finding obligation.” In McDonald , the defendant made several objections to facts in the PSR, arguing “that the source of the information was not credible or reliable.” Id. We clarified that “[a]ttacking a witness’s credibility or reliability is differe nt than asserting that their statements or information are false.” Id. at 1097. Thus, to trigger a district court’s fact-finding obligation, a defendant must affirmatively “make a showing that th e information in the [PSR] was unreliable and articulate the reasons why the facts cont ained therein were untrue or inaccurate .” Id. at 1096 (quoting United States v. Chee , 514 F.3d 1106, 1115 (1 0th Cir. 2008)) (emphasis and alteration in original). “In other words, the defendant must a ssert that the facts alleged . . . are false.” Id. at n.3. Although Mr. Anderson objected to the claim that he possessed methamphetamine, he did not c ontend in district court that specific statements in the police report were false and does not do so on appeal. For example, he does not argue Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1617 that he did not possess a crys tal-like substance which appeared to Sgt. Danius to be methamphetamine, nor that the substance was not stored in the manner described in the report or did not test presumptively positive fo r methamphetamine in a field test. Instead, Mr. Anderson now argues the police report wa s insufficient to suppo rt the enhancement because it was not admitted into evidence, was not corroborat ed by other evidence, and was not determined to be relia ble. We disagree. The polic e report was twice included in the record, corroborated by the body camera footage and the state indictment, and authored by a witness d eemed credible by the district c ourt. This was sufficient for the court to rely upon it in applying § 2K2.1(b)(6)(B).
C. Brady Claim On appeal, Mr. Anderson also asserts th e government failed to disclose evidence of methamphetamine possession in violation of Brady v. Maryland , 373 U.S. 83 (1963). In particular, he points out that the government did not disclose photographs of the drugs, additional test results, or inform ation about the field test used. He argues this failure to disclose prevented him from challenging the evidence used to en hance his sentence. To establish a Brady violation, a defendant must show the government suppressed material evidence that wa s favorable to him. United States v. Acosta-Gallardo , 656 F.3d 1109, 1117 (10th Cir. 2011). Me re speculation about whether evidence would have been favorable to the defendant is insufficient to support a Brady claim. See id. Particularly because Mr. Anderson was indicted in state court for trafficking methamphetamine, it is likely some of the evidence he requested ex ists. We need not speculate, however, Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 1718 because Mr. Anderson has not s hown any such evidence would be favorable to him. His Brady claim therefore fails.
Conclusion We are not persuaded that the firear m was discovered in violation of Mr. Anderson’s Fourth Amendment rights or th at the district court miscalculated the applicable sentencing guidelines . Accordingly, we affirm the denial of his motion to suppress, as well as his sentencing enhancement. Appellate Case: 21-2151 Document: 010110825909 Date Filed: 03/14/2023 Page: 18