UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MANUEL ARMANDO GUTIERREZBORJAS, 

Defendant - Appellant. 

No. 13-1538 

(D.C. No. 1:13-CR-00250-JLK-1) 

(D. Colo.) 

ORDER AND JUDGMENT*

Before LUCERO, BALDOCK, and HOLMES, Circuit Judges. 

 

 Manuel Gutierrez-Borjas appeals his sentence, arguing that the district court 

committed plain error in applying a four-level enhancement under U.S.S.G. 

§ 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3231, we affirm. 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 15, 2014

Elisabeth A. Shumaker 

Clerk of Court
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I

 Gutierrez-Borjas is a citizen of Mexico who has been removed from the United 

States on several occasions. Around 4:30 a.m. on May 12, 2013, Gutierrez-Borjas broke 

into a home in Gunnison, Colorado by climbing through a window. Gutierrez-Borjas’ 

wife and children were staying at that residence, having left the marital home after a 

domestic disagreement. When police arrived, he was sitting on a couch in the living 

room and appeared intoxicated. Officers discovered a .380 semiautomatic pistol in 

Gutierrez-Borjas’ possession. 

 The government charged Gutierrez-Borjas with being an undocumented alien in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) and with illegal reentry 

in violation of 8 U.S.C. § 1326(a). He pled guilty to both counts pursuant to a written 

plea agreement. The presentence investigation report (“PSR”) calculated a total offense 

level of fifteen, including a four-level enhancement because Gutierrez-Borjas committed 

the offense “in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). 

Specifically, the PSR concluded that Gutierrez-Borjas committed the offense of 

menacing under Colorado state law, based on the following undisputed account of 

Gutierrez-Borjas’ arrest: 

During questioning at the residence, officers discovered that there was an 

open warrant for Defendant in Oregon for a weapons charge. When they 

informed Defendant of the warrant, he became anxious, and appeared to 

adjust his waistband with his hands. Defendant denied possessing any 

firearms. But when he stood up from the couch, Defendant dropped a 

silver-colored pistol through his pants leg and tried to slide it under the 

couch with his foot.
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Gutierrez-Borjas did not object to this enhancement. 

 The district court imposed a sentence of 32 months, within Gutierrez-Borjas’ 

Guidelines range of 30 to 37 months. Gutierrez-Borjas timely appealed.

II

 Because Gutierrez-Borjas did not object to the four-level enhancement below, we 

review only for plain error. See United States v. Frost, 684 F.3d 963, 971 (10th Cir. 

2012). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects 

substantial rights, and which (4) seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” Id. (quotation omitted). 

 The Guidelines provide for a four-level enhancement if the defendant “used or 

possessed any firearm or ammunition in connection with another felony offense.” 

U.S.S.G. § 2K2.1(b)(6)(B). “Another felony offense” means “any federal, state, or local 

offense, other than the explosive or firearms possession or trafficking offense, punishable 

by imprisonment for a term exceeding one year, regardless of whether a criminal charge 

was brought, or a conviction obtained.” Id. app. n.14(C). The felony offense at issue in 

this case is menacing, defined in Colorado statute as follows: “A person commits the 

crime of menacing if, by any threat or physical action, he or she knowingly places or 

attempts to place another person in fear of imminent serious bodily injury.” Colo. Rev. 

Stat. § 18-3-206(1). Menacing is generally a misdemeanor, but qualifies as a felony if 

committed “[b]y the use of a deadly weapon.” Colo. Rev. Stat. § 18-3-206(1)(a). 
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 Gutierrez-Borjas argues that the record was insufficient to establish that he 

committed felony menacing under Colorado law because there is no evidence that he 

actively employed the firearm in his possession. He relies heavily on the Colorado Court 

of Appeals decision in People v. Adams, 867 P.2d 54 (Colo. Ct. App. 1993). There, the 

defendant threatened to shoot a victim, but did not have physical possession of a firearm 

when he made the threat. Id. at 55. The court held that “the General Assembly intended 

that the word ‘use’ would necessarily include the physical possession of a deadly weapon 

at the time of the crime.” Id. at 57. It held that “‘use’ connotes more than access” and 

quoted a dictionary definition for the proposition that “use” means “the act or practice of 

employing something.” Id. at 56-57. 

 We acknowledge that this ordinary meaning argument has some force. But to 

satisfy plain error review, Gutierrez-Borjas must show that the error was “obvious or 

clear, i.e., . . . contrary to well-settled law.” United States v. Edgar, 348 F.3d 867, 871 

(10th Cir. 2003) (quotation omitted). “In general, for an error to be contrary to wellsettled law, either the Supreme Court or this court must have addressed the issue.” 

United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (quotation 

omitted). Gutierrez-Borjas does not point to any federal case law on point. However, we 

have stated that plain error might be demonstrated “by showing that the construction of 

the state law that [a defendant] advances is the sole reasonable one.” United States v. 

Huskey, 502 F.3d 1196, 1198 (10th Cir. 2007). 

 Looking to other Colorado cases, we cannot conclude that Gutierrez-Borjas’ 
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actions were obviously insufficient to support a menacing conviction. In People v. Hines, 

780 P.2d 556 (Colo. 1996), the defendant “placed [a] gun on the side of his right hip 

below his belt and held the gun in that position with his right hand” before uttering a 

verbal threat. Id. at 558. The Colorado Supreme Court rejected the argument that “use” 

of a firearm requires pointing: “The term ‘use’ in section 18-3-206 is broad enough to 

include the act of holding the weapon in the presence of another in a manner that causes 

the other person to fear for his safety.” Id. at 559;1

 see also People v. Dist. Court, 926 

P.2d 567, 571 (Colo. 1996) (“[T]he phrase ‘use of a deadly weapon’ is broad enough to 

include the act of holding a weapon in the presence of another in a manner that causes the 

other person to fear for his safety, even if the weapon is not pointed at the other person.”). 

 Further, in People v. Saltray, 969 P.2d 729 (Colo. Ct. App. 1998), the court 

rejected defendant’s argument that felony menacing “requires an awareness on the part of 

the victim that he is being threatened.” Id. at 731. Instead, the court held that a 

conviction under the menacing statute is proper “if there is evidence from which the jury 

could reasonably find that defendant knew his actions, if discovered, would place the 

victim in fear of imminent serious bodily injury by use of a deadly weapon.” Id. at 732 

(emphasis added). 

 1

 The Hines court seemed to indicate in dicta that this result would hold even 

without an explicit verbal threat; it cited favorably to a Texas case, Gaston v. State, 672 

S.W.2d 819 (Tex. App. 1983), which was parenthetically described as “defendant’s 

holding of shotgun in hands during an assault constituted ‘use’ of a deadly weapon even 

though defendant made no physical motion to employ shotgun and did not verbally 

threaten to shoot victim.” Hines, 780 P.2d at 559. 
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 The district court did not plainly err in concluding Gutierrez-Borjas engaged in 

“physical action” that “places or attempts to place another person in fear of imminent 

serious bodily injury,” Colo. Rev. Stat. § 18-3-206(1), when he broke into a home 

occupied by his recently estranged wife in the early morning hours. The Hines decision 

establishes that holding a weapon without pointing it constitutes “use.” And although 

Gutierrez-Borjas concealed the firearm he was carrying, Saltray tells us that the relevant 

question is whether the defendant’s actions “if discovered” would cause the requisite 

level of fear in the victim. 969 P.2d at 732; see also People v. Zieg, 841 P.2d 342, 344 

(Colo. Ct App. 1992) (felony menacing conviction may be upheld “even though the 

victim may not be aware of the nature of the instrument employed by the perpetrator”). 

Gutierrez-Borjas’ holding of the firearm in his waistband, if discovered, could have 

caused the requisite level of fear in his recently estranged wife when coupled with his 

other conduct. Accordingly, we conclude that Gutierrez-Borjas’ actions might have 

qualified as felony menacing as that statute has been interpreted by Colorado courts. 

 In an attempt to counter this conclusion, Gutierrez-Borjas argues that Saltray is a 

mens rea case, inapplicable to his principal claim that the record is insufficient as to actus 

reus.

2

 The Saltray opinion did frame its analysis around the “mental culpability 

 2

 Gutierrez-Borjas also briefly argues that the evidence is insufficient to establish 

the necessary mens rea for menacing. We disagree. As long as the defendant is “aware 

that his conduct was such that it was practically certain to place the victim in fear of 

imminent serious bodily injury,” no specific intent is required. Saltray, 969 P.2d at 731. 

Gutierrez-Borjas’ actions, if discovered, see id. at 732, could meet this standard. 
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element.” 969 P.2d at 731. And it stated that threatening conduct, “if discovered,” is 

sufficient to establish “the intent element of the offense.” Id. at 732. But the court also 

ruled that “the proper focus is on the intent and conduct of the actor and not the victim.” 

Id. at 731 (emphasis added). Moreover, if undiscovered conduct were insufficient to 

establish actus reus, the Saltray court would presumably have reversed the defendant’s 

conviction, which rested wholly on acts not observed by the victim. The contention at 

issue in that case, as stated by the court, was not limited to the mens rea component. See 

id. (“Defendant contends that the offense of felony menacing requires an awareness on 

the part of the victim that he is being threatened and that, therefore, the prosecution’s 

evidence was insufficient as a matter of law to sustain his conviction.”). 

 The plain error standard is a demanding one. See United States v. McGehee, 672 

F.3d 860, 876 (10th Cir. 2012). Because neither our court nor the Supreme Court has 

decided the issue presented, see DeChristopher, 695 F.3d at 1091, and because the 

Colorado case law does not point to an obvious answer, we conclude that GutierrezBorjas has not satisfied the second prong of the plain error test. 

III

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge