PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ELIGIUS MONTANO, Defendant - Appellant. No. 23-2030

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:22-C R-00894-KWR-2)

________________ _________________ Violet Edelman, Assistant Federal Public Defender (Martín Juárez, Assistant Federal Public Defender, on the briefs), Office of th e Federal Public Defender, District of New Mexico, Albuquerque, New Mexi co, for Defendant – Appellant. Jaymie L. Roybal, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on th e briefs), Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexi co, for Plaintiff – Appellee.

________________ _________________ Before ROSSMAN , KELLY , and MURPHY , Circuit Judges.

________________ _________________ MURPHY , Circuit Judge.

________________ _________________ I. Introduction In 2022, Eligius Montano pleaded guilty to robbing a Metro PCS store in Belen, New Mexico. At sentencing, the dist rict court applied tw o relevant guidelines FILED United States Court of Appeals Tenth Circuit 

### July 23, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 12 enhancements: an increase in his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(E) for creating the impression he was holding a firearm under his sweatshirt during the robbery; and an endangerment adjustment pur suant to U.S.S.G. § 3C1.2 for inducing his getaway driver to naviga te recklessly. In calculating Montano’s criminal history, the district court noted that each of five consolidated state cases , which were resolved in a single judgment with one overarching sentence, included a charge or charges with possible prison terms exceeding thirteen months. As a result, the district court assigned each case the maximum three crimin al history points pursuant to U.S.S.G. § 4A1.1(a). Montano appeals, challenging the correct ness of each of the district court actions summarized above. Given the availa ble evidence, this court concludes the district court did not err in its application of § 2B3.1( b)(2)(E) or in calculating Montano’s total offense level in § 3C1.2. The evidence, however, did not support the district court’s attribution of three criminal history points to each of the five state cases. Thus, exercising jurisdiction pursuan t to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court remands the matter to the district c ourt with directions to vacate the judgment and resentence Montano cons idering an advisory sentencing range calculated by reference to a crim inal history category of V.
II. Background

a. Factual History On April 18, 2022, Montano and his father, Daniel Montano (“Daniel”), robbed a Metro PCS store in Belen, New Mexico. Two clerks were working when Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 23 Montano and Daniel entered the store. Montano and his father shouted at the employees to “put your hands where we can see them” and directed them to “get against the wall.” One clerk testified bot h men had their hands positioned in their sweatshirts to create the impression they were holding firearms. Despite the clerk’s belief and fear that a gun wa s present, further investiga tion revealed neither Montano nor Daniel possessed a weapon at the scen e. After gaining control of the clerks, Montano guarded the front of the store while Daniel ushered one of the clerks around the store to facilitate the th eft of various electronics. Shor tly thereafter, the men left the store with a garbage bag containing r oughly $8000 in merchandise. Following the Montanos’ departure, the clerks immediately contacted the police. As Montano and his father exited the store, the Metro PCS district manager happened to be traveling to the Belen franchi se in her vehicle. As she approached the location, she witnessed the duo walk behind the store with a trash bag and enter a red Toyota, which had pulled up to meet the me n. The driver of the vehicle was later revealed to be Jennah Payne, Daniel’s girl friend. The manager was able to follow the getaway car in her vehicle and assisted officers in locating the Toyota as they responded to the robbery alert. As officers approached the Montanos ’ getaway vehicle on the highway, the driver began maneuvering er ratically. According to Payne ’s statement to officers after the chase, Montano actively urged her to evade the police as they were being pursued. He demanded she “go, go” and “just fucking drive.” He al so told her he was on parole and did not want to return to prison. Payne informed police that Montano Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 34 gave her specific advice about how to el ude the authorities as she drove. After several miles of high-speed chase that invo lved weaving through traffic and illegally crossing the highway median multiple tim es, police successfu lly deployed spike strips to stop the car. When the vehicle came to a halt, Montano and his father quickly exited and unsuccessfully attemp ted to carjack two nearby automobiles before being apprehended.
b. Procedural History Montano and his father were indicted for Hobbs Act robbery in violation of 18 U.S.C. § 1951. Mont ano pleaded guilty to the charge without a plea agreement. The United States Probation Office prepar ed a Presentence Investigation Report (“PSR”) which applied two sentencing guide lines enhancements: (a) a three-level increase to the offense level for possession or br andishing a weapon under § 2B3.1(b)(2)(E); and (b) a two-level ad justment under § 3C1.2 for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing law enforcement. The bra ndishing-based increase in offense level was predicated on evidence Montano obscured his hand in his sweatsh irt to create the appearance of a firearm. See U.S.S.G. § 2B3.1 cmt. n.2 (providing § 2B3.1(b)(2)(E) covers objects used “in a manner that crea te[] the impression that the object was an instrument capable of infl icting death”). The endangerm ent adjustment was based on evidence Montano induced Payne into drivi ng recklessly in the getaway vehicle. See id. § 3C1.2 cmt. n.5 (applying the guidelin e to conduct the defendant “aided or abetted, counseled, commanded, induced , procured, or willfully caused”). Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 45 The district court adopted both §§ 2B3.1( b)(2)(E) and 3C1.2. It determined the clerk’s testimony regarding Montano’s plac ement of his hands during the robbery and evidence of his forceful demands s ubstantiated the brandishing guideline’s application. Similarly, given the nature of the offense, Payne’s statement to police, and her hazardous driving, the district c ourt concluded the record supported the application of the reckle ss endangerment adjustment. In calculating Montano’s criminal hi story category, the district court considered two prior state court judgmen ts involving crimes committed between 2016 and 2017. Only the crim inal history points assessed for the sentences imposed in the first of thes e two judgments (the “December 201 7 Judgment”) are at issue in this appeal. 1 The December 2017 Judgment consolid ated five New Mexico state cases which resolved thirteen ch arges. Two of the cases re solved in the December 2017 Judgment involve convictions for only a single crime: CR 2017-01101 (unlawful taking of a motor vehicle) and CR 2017-03304 (conspiracy to commit auto burglary). Both of these crimes are fourth degree fel ony offenses subject to a maximum term of eighteen months’ imprisonment. The other three cases resolved in the December 2017 Judgment involve multiple charges with total terms of imprisonment of three,

1 The second judgment (the “May 2018 Judgment”) imposes a sentence of six years’ imprisonment to be served concurre ntly with the sentence imposed in the December 2017 Judgment. The district court’s criminal history calculation attributed the maximum possible three points to th is six-year sentence of imprisonment pursuant to U.S.S.G. § 4A1. 1(a). Montano does not challe nge this determination. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 56 four, and twelve years respectively. 2 [Id.] The state court imposed the maximum possible sentence on each of the thirteen criminal convictions resolved in the December 2017 Judgment: 3 a total sentence of one day less than twenty -two years’ imprisonment. 4 Nevertheless, it suspended all but se ven years of that term. The state court did not allocate any pa rt of the unsuspended seven-y ear sentence to any one of

2 CR 2017-03303 resolved the following tw o charges: receivi ng or transferring a stolen vehicle (a fourth degree felony) and aggravated fleeing a law enforcement officer (a fourth degree felony). The tota l possible maximum sentence available in CR 2017-03303, assuming both sentences were ordered to run consecutively, is three years’ imprisonment. CR 2017-01385 resolved the following three charges: receiving or transferring a stolen vehicle (a four th degree felony); conspiracy to commit receiving or transferring a st olen vehicle (a fourth de gree felony); and resisting, evading, or obstructing an officer (a misdemeanor). The total possible maximum sentence available in CR 2017- 01385, assuming all three se ntences were ordered to run consecutively, is four years’ im prisonment. CR 2017-01217 resolved the following six charges: reside ntial burglary (a third degr ee felony); conspiracy to commit residential burglary (a fourth degree felony); larceny of at least $2501, but no more than $20,000 (a third degree felony); two counts of larceny of a firearm (each fourth degree felonies); and receiving or tr ansferring a stolen vehicle (a fourth degree felony). The total possible maximum sent ence available in CR 2017-01217, assuming all six sentences were ordere d to run consecutively, is twelve years’ imprisonment.
3 The December 2017 Judgmen t lists the thirteen crim es for which consecutive sentences are imposed in th e following order: (1) the single crime set out in CR 2017-01101, which occurred on or about Februa ry 14, 2017; (2) the six crimes set out in CR 2017-01217, which occurred on or about December 8, 2016; (3) the three crimes set out in CR 2017-01385, which occurred on or about March 28, 2017; (4) the two charges set out in CR 2017-0 3303, which occurred on or about August 27, 2017; and (5) the single crime set out in CR 2017-03304, which occurred on or about October 3, 2017.
4 Presumably, the one-day-less-than-twenty- two-years aspect of the sentence is meant to account for the si ngle misdemeanor conviction re solved in CR 2017-01385. See N.M. Stat Ann. § 31-19-1 (providi ng that the maximum sentence for any misdemeanor is imprisonment “for a de finite term less than one year”). Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 67 the five consolidated cases or thirteen sentenced convictions. 5 Instead, the dispositive paragraph of the state court judgm ent simply stat es as follows: The convictions shall be served consecutively for all purposes including any future parole/proba tion violations for an overall jurisdiction of twenty-two (22) year s minus one (1) day. All but seven (7) years will be suspended, for an act ual term of seven (7) years in the New Mexico Department of Correcti ons. Thirteen (13) years and onehundred and eighty-one (181) days of the sentence shall be suspended and the defendant will be placed on five (5) years of supervised probation. One (1) year and one-hu ndred and eighty-three (183) days will be suspended without condition.
R. at 58. Pursuant to U.S.S.G. § 4A1.1, previous convictions receive criminal history points weighted according to the length of actual imprisonment. Three criminal history points are allocated for sentences of imprisonment exceeding thirteen months; two points for sentences of at least sixty days; and one point for se ntences under sixty days. U.S.S.G. § 4A1.1(a)–(c). The PSR recommended allocation of the maximum three criminal history points to each of the five consolidated case s regardless of the maximum possible sentences for th e crimes charged in each of the five cases. In total, the PSR assessed Montano twenty points, 6 which resulted in a criminal history

5 The absence of allocation of the unsus pended sentence to any of the five cases is unremarkable. The pa rties have not furnished, a nd this court has not found, any New Mexico case, statute, or regulation that contempl ates, expects, or requires such allocation. New Mexico courts generally have discretion to suspend or partially suspend sentences. See N.M. Stat. Ann. § 31-20-3; State v. Sinyard , 675 P.2d 426, 428–29 (N.M. App. 1983).
6 This total calculation includes three cr iminal history points deriving from the May 2018 Judgment, see supra n.1., as well as two points because Montano Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 78 category of VI. See U.S.S.G. Ch 5 Pt. A (noting that category VI includes any defendant with thirteen or mo re criminal history points). The district court reached the same conclusion as the PSR in calculating criminal history points under § 4A1.1(a), re sulting in a criminal history category of VI. In analyzing the issue, th e district court determined: Looking through each of these case s, they involved threat in one way or another, burglary, larceny, th at type of thing. The Court must assume that it was the intent of the State Court for the defendant to spend time in custody on each of these cases and not cut off by going in order, as the defense has suggested, af ter you have reached [7 years] and spend no time after that for any of the cases after that, th at are listed, if I’m making any sense, in this Ame nded Judgment and Partial Sentence. That is reasonable, a nd I believe the preponde rance of the evidence supports that.

. . . . And if you give each case 18 months, that is three, six, seven and a half, that’s somebody serving time, a little bit of time for each one. I just think it is supported, and I think th at makes reasonable sense that the Court intended the defendant to sp end time in custody for each of the cases. R. at 262–63. The district court then adopted the PSR’s recommendation and assigned Montano to criminal history category VI. After applyi ng all relevant sentencing enhancements and deductions, the district court calculate d Montano’s offense level to be twentytwo points, which resulted in a senten cing guideline range of 84 to 105 months.

committed the PCS Store robbery wh ile under supervised probation, see U.S.S.G. § 4A1.1(d) (2021). Montano does not challenge either of these determinations. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 89 Montano was ultimately sentenced to nine ty-six months’ imprisonment, followed by three years of supervised release.
III. Analysis

a. Standard of Review “When evaluating the district court’s interpretation and application of the Sentencing Guidelines, we review legal questions de novo and factual findings for clear error, giving due deferenc e to the district court’s app lication of the guidelines to the facts.” United States v. Zamora , 97 F.4th 1202, 1207 –08 (10th Cir. 2024) (quotation omitted). Whether the facts found by the district court are sufficient to warrant an enhancement is reviewed de novo. United States v. Martinez , 602 F.3d 1156, 1158 (10th Ci r. 2010). “The government b ears the burden of proving sentencing enhancements by a pr eponderance of the evidence.” United States v. Orr , 567 F.3d 610, 614 (10th Ci r. 2009). Similarly, the government generally has the burden of showing “facts necessa ry to justify the addition of criminal history points” by a preponderance of the evidence. United States v. Randall , 472 F.3d 763, 766 n.1 (10th Cir. 2006); see also United States v. Servin-Acosta , 534 F.3d 1362, 1365 (10th Cir. 2008) (“The sentencing court may find th at the defendant has a prior conviction if it is satisfied by a pre ponderance of the evidence.”).
b. Brandishing Enhancement This court has clearly he ld that “a concealed ha nd may be an object which potentially triggers the three-level enhancement under § 2B3.1(b)(2)(E).” United
States v. Farrow , 277 F.3d 1260, 1268 (10th Cir. 200 2). We have been careful, Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 910 however, to ensure that “innocent conduct is not punished due solely to potentially unreasonable perceptions of particular victims.” Id . Thus, when analyzing the applicability of § 2B3.1(b)(2)(E) to an ob ject, this court evaluates the witness’s subjective state of mind but does not consider it determinative. Id . Instead, we look to whether “‘a reasonable person, under the ci rcumstances of the robbery, would have regarded the object that the defendant br andished, displayed or possessed as a dangerous weapon.’” Id . (quoting United States v. Hart , 226 F.3d 602, 607 (7th Cir. 2000)).
Farrow considered a bank teller’s report that the defendant placed his hand in his pocket to mimic a gun wh ile conducting a robbery. 277 F.3d at 1268. When he approached the bank counter, the defendant to ld the teller, “give me all the money, set it on the counter” and “don’t try anyt hing funny. Don’t make a scene or I’ll do something reckless.” Id . at 1261–62. Although the di strict court considered the teller’s subjective observati ons in concluding the bran dishing enhancement should apply, we determined the district court adequately considered other evidence in reaching its conclusion. Id . at 1268. Specifically, the dist rict court “applied the threelevel enhancement to Mr. Farrow based on his actions and language at the scene, which included demands for money and threats.” Id . Additionally, the district court appropriately considered evidence that th e defendant told i nvestigators he had strategically positioned his ha nd in his pocket to give th e appearance of possessing a firearm. Id . Under these facts, this court was “satisf[ied] . . . that the district court Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1011 assessed the evidence in light of the prope r standard and that its findings were not based solely on the victim ’s subjective perception.” Id

. Here, Montano conducted himself similarly to the defendant in Farrow . The district court found he was credibly seen obscuring his hand to create the appearance of a weapon and he made forceful, direc tive comments in the context of stealing thousands of dollars’ wo rth of goods. The record reflect s the district court relied on the totality of the circumst ances in reaching its determin ation and there is nothing to suggest the factual assertions underlying the district cour t’s analysis were clearly erroneous. The district court here did not have the benef it of an express admission by the defendant, as was present in Farrow . Nonetheless, such evidence is not required for a court to apply the proper, objective standard. Id . Rather, courts must consider the perceptions of a reasonable observer under the circumstances, which can be informed simply by the “actions and langu age” of the defendant during the event. Id .; see also United States v. Tate , 999 F.3d 374, 384 (6th Cir. 2021) (“Through [defendant’s] menacing words coupled with using his hand and his shoulder bag, a ‘reasonable individual’ would believe that [the defendan t] had a weapon . . . .”); United States v. Davis , 635 F.3d 1222, 1227 (D.C. Cir. 2011) (noting the defendants’ demands for money; nervous demeanor; and motion to reach into a bag sufficiently corroborated a witness’s impression that the defendant possessed a weapon during the robbery); United States v. Maxwell , 90 F. App’x 305, 307 (10th Cir. 2004) (when analyzing § 2B3.1(b)(2)(E) “the district co urt . . . properly considered the entire context, including the timing of the moveme nt of his hand to his pocket . . . , its Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1112 duration . . . , and his potentially threaten ing words”) (unpublishe d disposition cited only for its persuasive value). 7 Given the employee’s observations, the context of the robbery, and Montano’s forceful threats to limit the clerks’ moveme nts, we conclude a reasonable person under these circumstances would have regarded his hand to be a dangerous weapon and the ensuing e nhancement was properly applied.

c. Reckless Endanger ment Enhancement Section 3C1.2 contemplates a sent encing adjustment for reckless endangerment caused not only by a defe ndant’s personal ac tions fleeing from authorities, but also conduct of others th e defendant “aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G. § 3C1.2 cmt. n.5. In turn, this court has held that a defendant who is merely a pa ssenger in a getaway vehicle can be responsible for the reckless actions of the driver. See United States v. Wilfong , 475 F.3d 1214, 12 20 (10th Cir. 2007); United States v. Conley , 131 F.3d 1387, 1391 (10t h Cir. 1997).

7 Montano argues many cases evalua ting analogous applications of § 2B3.1(b)(2)(E) consider statements from th e defendant to witne sses that either (a) expressly state the obscured ha nd or object is a weapon; or (b) threaten e xplicit harm. See e.g. , Tate , 999 F.3d at 384; United States v. Stitman , 472 F.3d 983, 986 (7th Cir. 2007). He contends his own statements fell short of these types of claims and, therefore, precedent does not support that a reasonable pe rson would have interpreted he brandished a weapon. Certainly, such evidence is compelling in analyzing whether § 2B3.1(b)(2)(E) applies. Si milar facts, however, are not necessary to satisfy the objective standard. As explained above, ev idence of threating statements, demands, and actions can substantiate brandishing without an express admission from the defendant or graphic threat of harm. See Farrow , 277 F.3d at 1268. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1213 In United States v. Conley , this court considered a defendant who was a passenger in a getaway car subj ect to a high-speed chase si milar to the one in this case. 131 F.3d at 1391. There, we recognized th at “[t]he behavior of the car is not, in and of itself, a sufficient basis for a fi nding that Appellants procured the driver’s reckless behavior.” Id . Without evidence of what ha ppened in the car during the chase, this court concluded that “the defendant’s conduc t prior to the [crime]” was relevant for determining if he encouraged the reckless action. Id . We determined several aspects of the defenda nt’s behavior could support the application of a § 3C1.2 enhancement, including: (a) “conscious[]” planning for a robbery which required a quick escape; and (b) committing such a crim e, thereby supplying motive to abscond. Id .; see also Wilfong , 475 F.3d at 1220 (noting that de fendant’s attempt to destroy evidence by throwing it out of the getawa y car window as a passenger helped to substantiate defendant’s role as “an active par ticipant in the chas e” for purposes of § 3C1.2). 8

8 In his appellate briefing, Montano attempts to factually distinguish Conley

. Unlike here, in Conley (a) the defendants had guns an d the driver did not, thereby creating a possibility of greater control over the driver; (b ) the road conditions were icy and particularly dangerous ; and (c) the defendants con ceded they were trying to outrun the authorities. 131 F.3d at 1391. Although the presen ce of these facts contributes to a finding that § 3C 1.2 applies, none are mandatory. See , e.g. , Wilfong , 475 F.3d at 1220. As noted in Conley , several factors inform whether the defendant induced recklessness. Many of these factors were present he re, such as the nature of the driving, the timing of getaway, and th e content of the crime. 131 F.3d at 1391. Additionally, the case at hand also invol ves compelling evidence of what occurred inside the vehicle during the chase, which reflects Montano’s di rect role in the reckless getaway. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1314 Here, there is no doubt that the vehicle was driven recklessly. See United
States v. Brown , 314 F.3d 1216, 1221 (10th Cir. 2003) (explaining “reckless” for purposes of § 3C1.2 as being aware of and disregarding risk constituting a gross deviation from the standard of care expected of a reasonable person). Payne violated several traffic laws in an at tempt to elude officers and je opardized the safety of other drivers over the course of several miles. Similar to Conley , Montano’s conduct prior to and after the chase indicates motive to quickly escape authorities. He planned and committed a crime that required enlisting the se rvices of a getaway driver to make a speedy departure from the scene. Montano and his father further underscored the urgency of their flight by attempting to carjack multiple vehicles after their own getaway vehicle was disabled. Unlike Conley , this case includes additiona l contemporaneous evidence from inside the car which implicates Montano’s ro le in encouraging th e reckless driving. Payne’s statement to police emphasized Mont ano’s entreaty to drive quickly and his express efforts to direct her navigation. Montano argues Pa yne’s statement was merely hearsay that cannot sufficiently es tablish his actions in side the vehicle. Hearsay statements, however, “m ay be considered at sent encing if they bear some minimal indicia of reliability.” United States v. Damato , 672 F.3d 832, 847 (10th Cir. 2012); see also U.S.S.G. § 6A1.3(a). Several fa cts lend credibility to Payne’s statement, including that her report was given in-person so the officer could assess her demeanor; her statement was self-inculpa tory; and she implicated both father and son, rather than just shif ting the blame onto Montano. See Damato , 672 F.3d at 847; Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1415 United States v. Smalls , 605 F.3d 765, 781 (10th Cir. 2010); United States v. Cook , 550 F.3d 1292, 1297 (10th Cir. 2008). 9 Accordingly, we perceive no error in the district court’s reliance on he r statement in analyzing th e application of § 3C1.2. Even if Payne’s report was not properly c onsidered, however, enou gh evidence exists of Montano’s conduct surrounding the cr ime to support the enhancement. Conley , 131 F.3d at 1391. In light of Montano’s conscious efforts to execute a robbery, the clearly dangerous nature of the car chase, and Payne’s corroborating statement, we are convinced the government carried its bu rden to show the § 3C1.2 enhancement applied and comprehend no clear error in the district court’s factual findings underlying that conclusion.
d. Criminal History Calculation Section 4A1.1 assigns criminal hi story points based on the length of imprisonment term imposed on prior crim inal convictions. Convictions with

9 Montano argues Payne’s statements do not meet this minimal bar for reliability. He analogizes these facts to those in United States v. Fennell , 65 F.3d 812 (10th Cir. 1995), which determined that an unsworn statement to a probation officer was not reliable enough to support an e nhancement under U.S.S.G. § 2K2.1(b)(5). The statement in Fennell , however, was made telephoni cally “by an unobserved witness” and was “unsupported by other evidence.” Id . at 813–14. Here, that is not the case. As explained above, Payne’s stat ement was made more reliable by her inperson recitation, self-incul patory acknowledgement, and l ack of blame-shifting. As was true in Conley , Montano’s inducement of reckle ss driving was also supported by his need to escape quickly. See generally United States v. Ruby , 706 F.3d 1221, 1229 (10th Cir. 2013) (“Corroborating evidence is often key to determining whether a statement is sufficiently reliable.”). Fina lly, the record does not support the argument that Payne’s statement excl usively and unfairly pinned bl ame on Montano. In fact, her statement of the conduct inside the car also contribut ed to her boyfriend Daniel receiving a § 3C1.2 enhancement at sentencing. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1516 associated sentences of imprisonment exceeding thirt een months receive the maximum allotment of three points; convictions associat ed with shorter sentences receive as little as one poi nt if the sentence falls below sixty days. U.S.S.G. § 4A1.1(a)–(c). The narrow ques tion on appeal is whether th e district court erred in allocating fifteen criminal history points to the five cases reso lved in the December 2017 Judgment. 10 To recapitulate, the December 2017 Judgment resolved five consolidated cases, each of which involved convictions for crimes such as burglary, larceny, and stolen vehicle offenses. The December 2017 Judgment imposed a statutory maximum sentence of almost twenty-two years’ imprisonment, but suspended all but se ven of those years. 11 The December 2017 Judgment does not indicate whether or what part of th e seven-year unsus pended sentence was attributable to any of the five particular cases or thirteen separate convictions. 12 But cf

. United States v. Cruz-Alcala , 338 F.3d 1194, 11 99 (10th Cir. 20 03) (noting that the sentencing court clearly underscored how much prison time was included in a suspended sentence for purposes of § 4A 1.1 analysis). The unsuspended sentence simply represented the total prison time to be served for the five consolidated cases.

10 As noted above, Montano does not ch allenge the three criminal history points the district court a llocated to the May 2018 Judg ment or the two criminal history category points the di strict court allocated pursuan t to U.S.S.G. § 4A1.1(d) (2021). See supra nn. 1, 6.
11 Under § 4A1.2(b)(2), “[i]f part of a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to the portion that was not suspended.”
12 See supra n.5 and corresponding text. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1617 The PSR recommended, and the government ar gued, that each of the five cases resolved in the December 2017 Judgment should be a llocated the maximum three criminal history points. The only evidence o ffered to support such an approach was the December 2017 Judgment itself, along with the factual re citations of the underlying convictions in the PSR. In its analysis of Montano’s criminal history calculation, the district court began by criticizing the state court’s judgment. 13 It then interpreted the judgment, emphasizing that each of the five cases involved a “threat in one way or another, burglar y, larceny, that type of th ing.” In turn, it concluded the preponderance of the evidence supported th e assumption “it was the intent of the State Court for the defendant to spend tim e in custody on each of these cases.” In accordance with the PSR, the district cour t proceeded to attri bute eighteen months’ imprisonment to each of the five consolidat ed cases. This resulted in twenty criminal history points, three from the May 2018 Ju dgment, two from § 4A1.1(d) (2021), and fifteen from the December 2017 Judgment, thereby supporting a criminal history category of VI. On appeal, the government broadly ar gues the district court properly interpreted the state court judgment as inte nding to allocate pris on time to each case

13 The district court characterized the state court’s judgment as “appalling” and “a mess.” In doing so, it apparently expect ed the state court to specify what portion of the seven-year sentence applied to each of the five conso lidated cases. Such criticism is off the mark. See supra n.5. State court judges impose sentences in accordance with their own jurisdiction’s requirements and not necessarily in anticipation for how their sentences might be considered in another jurisdiction. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1718 because the underlying offenses involved “t hreats” and were, therefore, not minor. 14 Rather than endorsing the district court’ s approach to alloca te eighteen months’ imprisonment to each case, 15 however, the government prop oses an alternate theory of allocation supporting a criminal history cat egory of VI. It notes that the seven-year unsuspended sentence is roughl y 32% of the full twenty-t wo-year sentence. Applying this ratio to proportionally reduce the maxi mum sentence in each of the consolidated state cases similarly results in criminal history category VI. 16

14 The government’s adoption of this aspect of the district c ourt’s analysis is inapt for several reasons. First, the gove rnment does not identify any aspect of Chapter Four of the sentencing guidelines th at utilizes the perceived severity of prior crimes to illuminate how the state cour t intended to “pronounce[]” the punishments covered by the partial senten ce. U.S.S.G. § 4A1.2 cmt. n. 2 (clarifying definition of “sentence of imprisonment” for purposes of § 4A1.1). Fu rthermore, the government does not identify what is meant by “threat.” Black’s Law Dictionary defines “threat” as a “communicated intent to inflict harm or loss on another or on another’s property [in a way] that might diminish a person’s freedom to act voluntarily.” Black’s Law Dictionary 1618 (9th ed. 2009); see also State v. Fernandez , 875 P.2d 1104, 1110–11 (N.M. Ct. App. 1994) (using Black’s defi nition of “threat” to give content to elements of witness intimidati on statute). There is no indica tion in the record that any of the thirteen crimes of conviction involve d this type of actu al “threat.” If the government or district court meant to use the term as a proxy for the issue of danger, it does so without explanation or discussion. In any event, this court’s reading of the PSR indicates only two of thirteen crimes se t out in two different consolidated cases involved specific danger to a person or pers ons: the residential burglary charged in CR 2017-01217 and the aggravated fleei ng from an officer charged in CR 2017- 03303. In asserting the contrary, the govern ment, like the district court is inaccurate.
15 The government concedes it “is not cer tain what the district court meant” when it indiscriminately allocated eighteen months for each of the five state court cases. 16 This methodology allocates two crim inal history points for three of the consolidated state cases and three points fo r the remaining two for a total of twelve points. When added to Mont ano’s second state court sent ence and his two points for committing the violation while on proba tion, the resulting criminal history calculation well-exceeds th e thirteen points required for category VI. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1819 Montano argues the government has fa iled to demonstrate each of the consolidated cases merit three criminal hi story points and, therefore, has failed to meet its burden of proof. See Randall , 472 F.3d at 766 n.1. He proposes a third alternative allocation theory which results in a crimin al history category of V. He advocates allocating all seven years of the unsuspended sent ence to the most serious of the five cases, which ha d a maximum sentence of twelve years’ imprisonment. 17 Accordingly, he suggests this case rece ive three criminal history points and the remaining four cases receiv e one point. When added to his other criminal history points, the total criminal history calcu lation amounts to twelve points and a corresponding category of V. This court is thus pres ented with three differen t theories projecting the possible intent of the state court in sentencing Montano: two result in category VI, and one results in category V. Each method allocates criminal history points to each of the five consolidated cases. Each of the theories also present a potentially plausible basis to allocate time of impr isonment. The evidence presented does not indicate any methodology is weightier than the others and to pick one would be speculative. As demonstrated by the dist rict court’s unsupported assumptions at

17 This case was the most expansive. It contained six counts, twice that of the next most serious case, and included thr ee out of four of Montano’s larceny and burglary charges. See supra n.2. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 1920 sentencing, there is not sufficient evidence to determine the intent of the state court. 18 Merely because the state court judgment do es not inform the allocation of time of imprisonment to any of the five cases, the government is not relieved of its burden to justify the imposition of the hi gher criminal history category. 19 The government,

18 The government affirmatively asserts that resolution of this question is factual in nature. Gov’t Response Br. at 22. This court accepts the government’s concession, making it unnecessary to decide whether interpretation of an ambiguous state court judgment involves a legal or factual question. See Truman v. Johnson , 60 F.4th 1267, 1273 n.6 (10t h Cir. 2023) (noting that, in the preclusion context, the circuits are split as to this question).
19 This court perceives an additiona l interpretation of the December 2017 Judgment not advanced by either party. Rele vant state law and analysis of the state court’s intent drawn from the face of the doc ument support the conc lusion that a total of six criminal history points should be attributed to the December 2017 Judgment. As described above, see supra nn. 1–6, the December 2017 Judgment imposes sentences on the thirteen separa te convictions set out in fi ve consolidated cases. It does not impose sentences on the five cons olidated cases them selves. The December 2017 Judgment imposes the statutory ma ximum sentence on each conviction and orders all thirteen senten ces to run “consecutively fo r all purposes including any future parole/probation violations.” Of the total nearly twenty-t wo-year sentence, all but seven years are suspended. Of the remaining nearly fi fteen years, all but one-andone-half years are suspended with the cond ition Montano serve a five-year term of supervised probation. The New Mexico sentencing scheme is discussed at length in United States v. Jones , 921 F.3d 932, 939–42 (10th Cir. 2019) and State v. Kenneman , 653 P.2d 170, 172–74 (N.M. Ct. App. 1982). As those cases and the statutory cita tions therein make clear, suspended portions of sentences have meaningful existence post-judgment. Kenneman , 653 P.2d at 172 (“In the case of susp ension, if probation is revoked, the court may require the defendant to serve the balance of the sentence previously imposed but suspended, or any lesser sentence.”); N.M. Stat. Ann. § 31-20-8 (“Whenever the period of suspension expire s without revocation of the order, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal li ability for the crime. He sh all thereupon be entitled to a certificate from the court . . . and upon presenting the same to the governor, the defendant may . . . be grante d a pardon or a certificate re storing such person to full rights of citizenship.”). Notably, New Mexi co state courts can only impose a period Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 2021 therefore, has failed to m eet its burden and we concl ude Montano’s appropriate criminal history category to be V. 20
IV. Conclusion The sentence imposed by the District Cour t for the District of New Mexico is hereby affirmed in part and reversed in pa rt. The matter is remanded to the district

of probation by first suspending a porti on of a sentence of incarceration. Jones , 921 F.3d at 940. This court has not discovered any New Mexico law indicating any reason to apportion a partia lly suspended sentence among different convictions or among multiple incidents re solved in a single judgment. Given the continuing validity of the entirety of the twenty-two-year sentence imposed in the December 2017 Judgment, it is reasonable to read the judgment as sequen tially suspending all sentences imposed after the running of seven years. Cf . N.M. Stat. Ann. 31-20-5 (“If a defendant is required to serve a period of probation subseque nt to a period of incarceration . . . the period of probation sha ll be served subsequent to any required period of parole, with the time served on pa role credited as time served on the period of probation and the conditions of proba tion imposed by the court deemed as additional conditions of parole . . . .”). Under this theory, Monta no would receive three point s for the first sentence imposed in the December 2017 Judgment; an eighteen-month sentence for unlawful taking of a motor vehicle. He would also receive three points for the next sentence imposed; a three-year term for residential burglary. He would not receive any points for the next three sentences imposed because those sent ences involved crimes that occurred on the same day, were charged in the same indictment, and were imposed on the same day as the burglar y. U.S.S.G. § 4A1.2(a)(2). Each of the consecutive sentences imposed thereafter in the judgm ent would be suspende d and, thus, do not count as a sentence of imprisonment. Id . § 4A1.2(b)(2). When added to the five points not contested by Montano, these six points result in a total of eleven criminal history points and a crimin al history category V.
20 In the alternative, Monta no argues that the rule of lenity should apply. In light of our disposition rema nding for a lesser criminal history category, we need not address this issue. Appellate Case: 23-2030 Document: 010111083421 Date Filed: 07/23/2024 Page: 2122 court to vacate Montano’s sentence and to re sentence him consistent with the holding of this disposition. 21

21 At oral argument, the government re quested a new evidentiary hearing on remand. “Although remand for resentencing ge nerally allows the district court to conduct de novo review,” this court may exer cise its discretion to limit remand to the existing record under cer tain circumstances. United States v. Forsythe , 437 F.3d 960, 963 (10th Cir. 2005). It is appropriate to exercise such discretion when the “Defendant alerted the government to the deficiency in its evidence, [and] the government did not seek to cure the deficiency.” Id . (quotation omitted). Here, Montano consistently objected to the lack of evidence supporting his criminal history calculation under § 4A1.1 and the government failed to offer any additional evidence supporting its contention. Accordingly, “[t] he government failed to meet its burden of proof on a clearly establis hed element . . . and we declin e to give it a second bite at the apple.” Id

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