UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERIC A , Plaintiff - Appellee,

v. DONALD ALFRED BUSCH, Defendant - Appellant. No. 22-2161 (D.C. No. 5:20-CR-01486-KG-2) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , EBEL , and ROSSMAN , Circuit Judges.

________________ _________________ Donald Alfred Busch was convicted af ter a jury trial in the District of New Mexico on charges of conspiracy, ca rjacking resulting in death, carrying a firearm while committing a crime of vi olence, and being a felon in possession of a firearm or ammunition. The distr ict court imposed a sentence of 480 months in prison. Mr. Bu sch now appeals, advanc ing challenges to his conviction and sentence. As we expl ain, many of Mr. Busch’s appellate challenges were not preser ved in the district court or properly developed on

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its pers uasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 30, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 12 appeal, and the arguments ap propriately before us ar e unavailing. Exercising jurisdiction under 28 U. S.C. § 1291, we AFFIRM. I 1 A On the evening of May 27, 2019, Mr. Busch and his ex-girlfriend Tristyn Carlo were arguing over text message. Ca rlo had recently started dating Justin Swenson. Mr. Busch said he would “com e down” to Swenson’ s house and show her and Swenson “how dumb he could be.” RIII.874. A little after midnight, Mr. Busch went to Swenson’s house an d saw Carlo’s car parked outside. He thought Carlo was “in there ba nging [Swenson].” RI.153. Mr. Busch drove a few miles away to a property where his friend, Stetson Barnes, lived in a traile r. There, he asked Barnes and two others—Jehra Hedgecock and Tyson Terrell—to help him steal a dirt bike 2 from Swenson. Hedgecock drove the group to Swenson’s house in her truck. Mr. Busch,

1 We derive these facts from Volu mes I and III of the record, with reference to the narrative summaries in the Opening and Answer Briefs.

2 The district court and parties use both “motorcycle” and “dirt bike” to describe the vehicle. Because the di stinction does not affect our analysis, and because Mr. Busch proposes we call it a “dirt bike,” we will use the characterization he suggests. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 23 Barnes, and Hedgecock ea ch carried a handgun. 3 When they arrived, Hedgecock got out of her truck and knoc ked on Swenson’s front door, but no one answered. Mr. Busch and Terrell walked to the garage and looked at Swenson’s dirt bikes, while Barnes stood near the tailg ate of the pickup truck. Mr. Busch selected a dirt bike, brought it outside the garage, and tried to start it. Swenson then came to the front door with a gun in his hand. Mr. Busch, Barnes, and Hedgecock pulled out their guns and pointed them at Swenson. Mr. Busch shouted at Swenso n to get back in the ho use. Swenson responded, “Chill the fuck out, ” and went back inside. Mr. Bu sch again tried to start the dirt bike, but he was unsuccessful. He then pushed the dirt bike down the driveway and off Swenson’s property. Ba rnes, Terrell, and Hedgecock got back inside the truck, with He dgecock driving, Terrell in the passenger seat, and Barnes in the backseat. As Hedgecock pulled away from the property, Barnes and Swenson exchanged gunfire. In a few seconds, Barn es fired twelve shots into the house, and Swenson fired four shots at the pi ckup truck. One of Barnes’s shots ultimately penetrated the house, killing Swenson.

3 Mr. Busch disputes he carried a gu n that evening. As we will soon discuss, we conclude the ev idence was sufficient to find beyond a reasonable doubt Mr. Busch possessed a firearm during the offense. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 34 Mr. Busch was arrested about a week later. Mr. Busch’s firearm was never recovered. A federa l grand jury indicted Mr . Busch for committing a carjacking resulting in death under 18 U.S.C. § 2119(3); engaging in a conspiracy to commit carjac king under 18 U.S.C. §§ 21 19(3) and 371; carrying a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(2); and being a felon in possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1 ). Barnes, Terrell, and Hedgecock were charged as co-defendants with Mr. Busc h in the same indictment. 4 B Mr. Busch and co-defendants Barnes an d Terrell proceeded to jury trial. 5 We briefly highlight aspec ts of the trial proceedings relevant to the appellate issues and will discuss these facts in more detail in our analysis.

4 Like Mr. Busch, all three were charged with conspiracy to commit carjacking under §§ 2119 and 371. The go vernment also charged Barnes and Hedgecock with carjacking resulting in death under § 2119(3) and carrying a firearm during and in relation to a crime of violence under § 924(c)(1)(A)(ii). Barnes was additiona lly charged with causing a death by using his firearm in relation to a crime of violence, in violation of § 924(j)(1), and being a felon in possessi on of a firearm or ammu nition, in violation of § 922(g)(1). The government charged Terrell with simple carjacking under § 2119(1).

5 Hedgecock pleaded guilty before trial and testified against Mr. Busch, Barnes, and Terrell at trial. Ba rnes was convicted on all counts. His direct appeal remains pending. See United States v. Barnes , No. 22-2147. As to Terrell, the district court declared a mistrial because of a hung jury. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 45 At the pretrial conference, Mr. Busc h’s counsel mentioned for the first time his desire to call a toxicology expert to testify about Swenson’s alleged methamphetamine intoxicati on on the night of the offense. The expertdesignation deadline had ex pired, but the district cour t agreed to “reconsider a deadline if there’s good cause, if [Mr. Busch] [did] have an expert,” since there was “some time befo re trial.” RIII.2142. Mr. Busc h never proposed a toxicology expert. Before trial, each defendant and the government filed a set of proposed jury instructions. The court then drafted a preliminary set of jury instructions, including one on the elements of ca rjacking under § 2119(3), which said To find a Defendant . . . guilty of this crime, you must be convinced that the United States has proved each of the following elements beyond a reasonable doubt: Fir st, the Defendant took a Yamaha motorcycle from the presence of another person; Second, the Defendant did so by means of forc e and violence, or intimidation; Third, the motor vehicle had b een transported, shipped, and received in interstate or foreign commerce; Fourth, the Defendant intended to cause death or seriou s bodily harm; and Fifth, someone died as a result of the crime. ECF No. 280 at 10. 6

6 The documents to which we re fer by docket number were not included in the record on appeal. We have acce ssed these publicly filed documents on the district court docket and take judicial notice of them. See In re Syngenta II , 95 F.4th 1251, 1259 n.4 (10t h Cir. 2024). (noting we may “take judicial notice of documents a ppearing on the district court’s docket and on our own docket”). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 56 At the jury instruction conference , the government asked the district court to modify the instruc tion by separating the fi rst four elements (simple carjacking) from the final element (the death-results element). The government also proposed placing the death-resul ts element in a separate interrogatory. Mr. Busch’s counsel opposed the government’s proposal. “I would object to doing that,” defense counsel said. RIII.15 32. “I think it’s totally proper the way the Court’s done it.” Th e district court ultima tely gave a single instruction with all five el ements for carjacking resulti ng in death, in the form endorsed by Mr. Busch. Co-defendant Barnes requested a sel f-defense instruction on the charges of carjacking under § 2119(3) and carrying a firearm in violation of § 924(c)(1)(A)(2). 7 The district court ultimately concluded self-defense was available only as to the § 924(c)(1)(A)(2 ) offense against Barn es—and not as to the carjacking charge. On the record before us, Mr. Busch did not participate in the pre-trial liti gation on the self-defense instruction.

7 The issue of whether to give a sel f-defense instruction relating to the carjacking and § 924(c) charges first arose when the government filed a motion in limine arguing self-defense was not available in this context. RI.288–89. Barnes opposed that motion , insisting he was entitled to argue self-defense. See RI.287–88 (describing Barnes’s arguments). Mr. Busch did not respond to the government’s moti on or otherwise request such an instruction on his behalf. The district court denied the government’s motion, ruling a self-defense instruction for the charges against Barnes could be warranted “depending on the admissible evidence presented to the jury.” RI.289. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 67 The jury heard testimony over the co urse of eight days. The government presented evidence from fifteen witn esses, including the officers who investigated the incident, Carlo, Hedgec ock, and two firearms and ammunition experts. Barnes testified in his defe nse; the other defe ndants did not. When the government rested, Mr. Busch moved for a judgment of acquittal on all charges. The court denied the motion . The jury co nvicted Mr. Busch as charged in the indictment. Mr . Busch was sentence d to concurrent prison terms of 60 months on Count 1 (conspiracy), 396 months on Count 2 (carjacking), and 120 months on Co unt 7 (felon in possession), and a consecutive term of 84 months on Co unt 4 (using a firearm in a crime of violence), for a total of 480 months. This timely appe al followed. II Mr. Busch urges reversal of his co nviction and sentence. His opening brief raises seven issues—some of whic h overlap. We understand his appellate challenges as follows. First , Mr. Busch argues the evidence was insufficient to support a conviction. He challenges the sufficiency of the evidence on his carjacking Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 78 conviction under § 2119(3). 8 He contends a dirt bike is not a “motor vehicle” within the meaning of the statute. And he insists the eviden ce was insufficient to show he intend ed to harm Swenson. He also appeals his conspiracy conviction based on insuffi cient evidence of his spec ific intent to commit the underlying carjacking offense an d the interdependence among the coconspirators. Mr. Busch likewise challe nges his firearms-related convictions (for being a felon in possess ion and using a firearm in a crime of violence), contending the government failed to prove beyond a reas onable doubt he carried a gun. Second , Mr. Busch challenges aspects of the jury instructions. He contends the jury was erro neously instructed on the carjacking offense because the death-results element was not set out in its ow n interrogatory. And he insists he was entitled to a jury instruction on sel f-defense to the carjacking charge. Third , Mr. Busch contends the distric t court erred by excluding his proposed toxicology expert.

8 Because the carjacking offense was a predicate to the convictions for conspiracy and using a firearm in a crime of violence, Mr. Busch’s sufficiency argument on this issue im plicates all three convictions. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 89 Finally , Mr. Busch contends his sentence is procedurally unreasonable because the district court erroneou sly imposed a two-level sentencing enhancement for obstruction of justi ce under U.S.S.G. § 3C1.1. As we explain, Mr. Busch’s appe llate claims are unpreserved, underdeveloped on appeal, or unavailing on the merits. We discuss each in turn and affirm the district court. III A Mr. Busch argues there was insufficien t evidence to sustain a conviction for carjacking resulting in death under 18 U.S.C. § 2119. As a general rule, we review sufficiency-of-the-e vidence challenges to cr iminal jury verdicts de novo

. United States v. Cornelius , 696 F.3d 1307, 1316 ( 10th Cir. 2012). Sufficient evidence exists to su pport a conviction if, “after viewing the evid ence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Matthews v. Workman , 577 F.3d 1175, 1183 (1 0th Cir. 2009) (quoting Jackson

v. Virginia , 443 U.S. 307, 319 (1979)). Here, the statute of conviction provides crimin al penalties for “[w]hoever, with the intent to caus e death or serious bod ily harm, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation.” 18 U.S.C. § 2119. Mr. Busc h asserts § 2119 “was . . . directed at Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 910 cars ” and not dirt bikes—the ve hicle he took from Swen son. Opening Br. at 35. He further contends the evidence was insu fficient to prove either of the charges for which the carjacking offense is a pr edicate, namely the conspiracy count and the § 924(c) count. See Opening Br. at 37–38. This challenge was forfeited, as th e government persuasively argues. Federal Rule of Criminal Procedure 29 provides “[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgme nt of acquittal of any offense for which the evidence is insu fficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Rule 29 thus allows defendants to challenge the sufficiency of the evidence both before the case is submitted to a ju ry and after the jury has returned a verdict. See id. 29(a), (c). The Rule 29 context creates unique implications for preservation. “When a defendant challe nges in district court the sufficiency of the evidence on specific grounds, all gr ounds not specified in the motion are waived.” United States v. Maynard , 984 F.3d 948, 961 (10th Cir. 2020) (quoting United States v. Goode , 483 F.3d 676, 681 (10th Cir. 2007) (internal quotation omitted)). This principle does not require heightened “specificity of grounds . . . in a Rule 29 motion.” United States v. Murphy , 100 F.4th 1184, 1193 (10th Cir. 2024) (internal qu otation omitted). Rather, it focuses on the appellate consequences of hei ghtened specificity in the Rule 29 Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1011 motion: “where a Rule 29 motion is ma de on specific grounds, all grounds not specified are waived.” Id. ; see also 2A Charles Alan Wright & Arthur R. Miller, Federal Practice and Proced ure § 469 (4th ed. 2024) (“[I]f the defendant has asserted specific grounds in the trial court as the basis for a motion for acquittal, he or she cannot assert other gro unds on appeal.”). We generally consider sufficiency arguments waived “when [a defendant] make[s] specific challenges in the distri ct court in support of a Rule 29 motion and th en later raise[s] entirely separate claims before us.” Murphy , 100 F.4th at 1195 (emphasi s added) (discussing Maynard , 984 F.3d at 948, which held a Rule 29 motion expressly addressing only one count resulted in waiver of sufficiency challenges to his convictions on other counts). But when the arguments on appeal are not about “entirely separate” claims but are merely new arguments about the same convictions, we view those arguments as forfei ted and review for plain error. See , e.g. , Goode , 483 F.3d at 681 (reviewing the defe ndant’s sufficiency challenge to a felon-in-possession conviction for plai n error because he raised a challenge to the interstate-commerce element on appeal after challenging only the possession element in his Rule 29 motion); see also United States v. Kimler , 335 F.3d 1132, 1141 (10th Cir. 2003) (r eviewing the defendant’s sufficiency challenge to a child pornography convict ion for plain error because he raised Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1112 a new argument on appeal after challe nging only the in terstate commerce element in his Rule 29 motion). Mr. Busch moved for a judgment of acquittal on the carjacking count on two grounds: (1) the vehicle was no t taken from Swenson’s presence, and (2) although Mr. Busch committed an “a ctual taking of the motorcycle,” the “taking of the motor vehicle had sto pped before the shooting occurred.” RIII.1373–74. Neither ground includes th e specific argument now before us—that a dirt bike is not a “motor vehicle” within the meaning of § 2119. The argument on appeal, however, is about the same claim as raised in the Rule 29 motion. Under these circumsta nces, we may review the forfeited issue—but only for plain error. See Goode , 483 F.3d at 681. Mr. Busch attempts to resist the co nclusion about the appropriate standard of review. He says the argument advanced on appeal was preserved and in support, purports to quote trial counsel as “not[ing] there had been ‘no taking of a motor vehicle’ by Appellant.” Opening Br. at 34 (purporting to quote RIII.1372). 9 The record simply does not support Mr. Busch’s position. The transcript conf irms trial counsel only argued “the taking of the motor vehicle had stopp ed before the shooting occurred.”

9 The citation to page 1372 of th e third volume of the record is incorrect. The language most closel y resembling the purported quotation appears on pages 1373–74. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1213 RIII.1374. To the extent Mr. Busch sugge sts this portion of the transcript, correctly construed, shows he affirmatively argued a dirt bike is not a motor vehicle, we are unpersuaded. We conclude Mr. Busch fo rfeited the argument that a dirt bike is not a motor vehicle within the meaning of § 2119. Mr. Busch did not argue for plain error in his Opening Brief. Af ter the government pointed out this omission, Mr. Busch, in his reply br ief, sought plain-error review. We permit “a plain error argument to be raised for the firs t time in a reply brief.” United States v . Zander , 794 F.3d 1220, 1232 n. 5 (10th Cir. 2015); see also Goode , 483 F.3d at 681 (holding defendant forfeited a sufficiency argument by failing to adequately sp ecify it in a Rule 29 motion and reviewing for plain error); Kimler , 335 F.3d at 1141 (same). We do so here. B “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 reputati on of judicial proceedings.” United States v . Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (quoting United States v. Burbage , 365 F.3d 1174, 1180 (10th Cir. 2004 )). “The defendant has ‘the burden of establishing entitlement to relief for plain error.’” Greer v. United States , 593 U.S. 503, 508 (2021) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004)). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1314 Mr. Busch’s appellate cha llenge to the district cour t’s interpretation of 18 U.S.C. § 2119(3) falters on the first tw o prongs. “[A]n error is plain if it is ‘clear or obvious under current, well-se ttled law,’ meaning ‘either the Supreme Court or this court has addressed the issue.’” United States v . Flechs , 98 F.4th 1235, 1254 (10th Cir. 2024) (a lteration adopted) (quoting United States v. Brooks , 736 F.3d 921, 930 (10th Cir. 2013)). In the context of a district court’s interpretation of a statute , an appellant “must demon strate either that this court or the Supreme Court has resolved th ese matters in his favor, or that the language of the relevant statute[] is clearly and obviou sly limited to the interpretation [he] advances.” United States v . Harbin , 56 F.4th 843, 845 (10th Cir. 2022) (internal alterations omitted) (quoting United States v. Fagatele , 944 F.3d 1230, 1239 (1 0th Cir. 2019)), cert. denied , 144 S. Ct. 106 (2023). The term “motor vehicle” is not defi ned in § 2119. And Mr. Busch has not identified (nor have we found) any authority suggesting this court or the Supreme Court has construed the term in § 2119. According to Mr. Busch, “federal courts . . . universally hold that the term is limited to the language contained in the Motor Vehicle Act of 1984: ‘a vehicle driven or drawn by mechanical powers and manufactured prim arily for use on public streets, roads and highways.’” Reply Br. At 3–4. But Mr. Busch has marshalled no Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1415 precedential authority to support this assertion. 10 Nor has Mr. Busch carried his burden to show “the language of the relevant statute[] is clearly and obviously limited to the inte rpretation [he] advances.” Id. (quoting Fagatele , 944 F.3d at 1239. When interpreting a statute, we “begin[] with its text.” See Abbott v . Abbott , 560 U.S. 1, 10 (2010) (quoting Medellin v. Texas , 552 U.S. 491, 506 (2008)). Recall, “motor vehicle” is not defined in § 2119 or elsewhere in Chapter 103 of Title 18. We “give undefined term s their ordinary meanings, considering both the specific context in which the wo rd is used and the broader context of the statute as a whole.” Hooper v . City of Tulsa , 71 F.4th 1270, 1282 (10th Cir. 2023) (quoting In re Taylor , 899 F.3d 1126, 1129 (10th Cir. 2018)). “[I]f Congress does not define [a] statutory term, its co mmon and ordinary usage may be obtained by refe rence to a dictionary.” United States v . Barajas-Chavez , 162 F.3d 1285, 1288 (1 0th Cir. 1999) (citing United States v . Roberts, 88 F.3d

10 For example, Mr. Busch points us to a bankruptcy case from the Western District of Missouri. Reply Br. at 4 (citing In re Race , 159 B.R. 857 (Bankr. W.D. Mo. 1993), rev’d sub nom. Willison v . Race , 192 B.R. 949 (W.D. Mo. 1995)). There, the bankruptcy cour t interpreted a Bankruptcy Code provision excepting from discharge a debt incurred for death or personal injury caused by debtor’s unlawful operation of a motor vehicle while intoxicated. See In re Race , 159 B.R. at 859. But Mr. Busch cannot—by identifying one case from a bankruptcy court in another circuit defining the term “motor vehicle” as used in an other section of another legal code— “demonstrate . . . that this court or the Supreme Court has resolved” the interpretation of § 2119 “in his favor.” See Harbin , 56 F.4th at 845. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1516 872, 877 (10th Cir. 1996) an d using, in part, Black’s Law Dictionary to define “furtherance”); see also In re Hamilton Creek Metro. Dist. , 143 F.3d 1381, 1385 (10th Cir. 1998) (noting th at “the ordinary meaning a ttached to the word . . . may be found by aid of commonly acce pted dictionary definitions” and using Black’s Law Dictionary to define “due”); Marcantel v . Michael & Sonja Saltman Fam. Tr. , 993 F.3d 1212, 1223 (10th Ci r. 2021) (using Black’s Law Dictionary to define “defect”). The government contends the ordinary meaning of “motor vehicle” is “[a] wheeled conveyance that does not run on rails and is self-propelled, esp. one powered by an internal-combustion e ngine, a battery or fuel cell, or a combination of these.” Answer Br. at 14 (citing Motor Vehicle , Black’s Law Dictionary (11th ed. 2019) 11 ). This definition would include dirt bikes, since these generally are wheele d conveyances that do no t run on rails and are powered by internal combustion engines. 12 Mr. Busch urges the panel to adopt

11 Mr. Busch does not challenge th e government’s reliance on this dictionary to define the term.

12 Mr. Busch’s argument on this issu e appears limited to challenging whether dirt bikes generally fall with in the purview of § 2119—not whether the evidence was su fficient that this particular dirt bike had the requisite features. In other words, Mr. Busch does not contend the government’s definition was not satisfied on this re cord. And there is no indication from the record that the dirt bike stolen from Swenson deviated in any relevant respect from the definiti on the government propos es. For example, though Mr. Busch may have had doubts about whether the dirt bike would run, see Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1617 a narrower construction of “motor vehicl e” by either (1) reading the scope of the statute as limited by its title, th e “Anti Car Theft Act,” and legislative history referring to cars an d trucks; or (2) importing the definition of “motor vehicle” from another se ction, 18 U.S.C. § 511. 13 These arguments are unavailing. The title of an act “may furnish so me aid in showing what was in the mind of the legislature,” but it “c annot control [the statute’s] words.” Holy Trinity Church v . United States , 143 U.S. 457, 462 (18 92). Neither the context in which “motor vehicle” is used in § 2119 nor the “broader context of the statute as a whole” aligns with Mr. Busch’s reading. Hooper , 71 F.4th at 1282 (quoting In re Taylor , 899 F.3d at 1129). There is no indication in § 2119, for example, Congress meant to import a specialized definition from another section of another title, 49 U.S.C. § 32101. Mr. Busch has offered no authority supporting that proposition, and we are aware of none.

RIII.1666, there was no testimony or argument suggesting the vehicle was not equipped with an inte rnal combustion engine.

13 Section 511(c) provides that “‘mo tor vehicle’ has the meaning given that term in section 32101 of title 49. ” 18 U.S.C. § 511(c )(2). In turn, 49 U.S.C. § 32101 (located in Title 49, Part C, which imposes certain requirements on vehicles so ld to consumers), defines “motor vehicle” as “a vehicle driven or drawn by mechanic al power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.” 49 U.S.C. § 32101(7). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1718 Mr. Busch relies on the House Report —describing this statute’s purpose as “to prevent and deter auto theft”—as evidence of a legislative intent narrowly focused on “autom obile theft” rather than theft of other vehicles. See Opening Br. at 35 (citi ng 1999 House Report No. 1 02-851, 1992 U.S.S.C.A.N. 2829, at 2829). But that stated pu rpose evinces no clear intent to exclude other kinds of vehicles from the statute’s ambi t. The legislative hi story relied on by Mr. Busch does not suggest giving “motor vehicle” its ordinary meaning will “produce a result demonstr ably at odds with the in tentions of [§ 2119’s] drafters.” United States v . Ron Pair Enterprises, Inc. , 489 U.S. 235, 242 (1989) (“The plain meaning of legislation should be conclusive, except in the rare cases in which the literal applic ation of a statute will prod uce a result demonstrably at odds with the intentions of its drafters.” (quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564, 571 (1982))). The district court did not plainly err by refusing to construe the term “motor vehicles” in a manner not compelle d by the statutory te xt or applicable caselaw. Mr. Busch has offered no cont rary availing argument. Having failed to satisfy his burden of pr oving plain error on the fir st two prongs, we need not address whether he satisfie s the remaining elements. United States v. Gantt , 679 F.3d 1240, 1246 (10t h Cir. 2012) (“Because al l four [plain error] requirements must be met, the failure of any one will foreclose relief and the others need not be addresse d.”). We thus find his argument for reversal of his Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1819 convictions for carjacking, conspiracy , and using a firear m in a crime of violence on this grou nd to be unavailing. IV A Mr. Busch next challenges the sufficiency of the ev idence on the specific intent element for carjacking. See Opening Br. at 43–4 4. This argument appears to have been adeq uately raised du ring the motion for a judgment of acquittal. See RIII.1373 (arguing the evidence did not “est ablish[] that they [the codefendants] had any intent to go commit a carjacking” and that “there was no intent to hurt Mr. Swenson”). The government does not contend otherwise. We review de novo

. Cornelius , 696 F.3d at 1316. Section 2119 requires the taking of the motor vehicle to have been committed with “the intent to cause death or serious bodily injury.” 18 U.S.C. § 2119. The requisite intent is a conditional intent —meaning the government need not prove the defendan t “actually attempted to harm or kill the driver.” Holloway v . United States , 526 U.S. 1, 7, 11 (199 9). The government could satisfy the intent requirement of § 2119 by showing “the defendant possessed the intent to seriously harm or kill the driver if necessa ry to steal the [vehicle].” Id .; see also United States v . Malone , 222 F.3d 1286, 1291 (10th Cir. 2000) (analyzing a sufficiency challenge on the intent element of § 2119 under Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 1920 Holloway by asking “whether the words an d actions of the defendants sufficiently demonstrate a conditional in tent to cause seri ous bodily harm”). The mens rea element of § 2119 refers to the defendant’s state of mind “at the moment the defend ant demanded or took control over” the motor vehicle. See Holloway , 526 U.S. at 8. The totalit y of the circumstances during the same “episode” ma y be probative of the defendant’s intent. See Malone , 222 F.3d at 1291 (clarifying “it is necessa ry to look at the totality of the circumstances” to discern whether a defendant had th e conditional intent to cause serious bodily harm); United States v . Pena , 550 F. App’x 563, 565–66 (10th Cir. 2013) 14 (interpreting Malone to permit consideration of any facts from the same “episode” as “sufficiently contemporaneou s” to be probative). For example, Malone held a jury could reasonably infer the defe ndant’s actions before the car was ta ken —“tying up [the car owner’ s] family, holding a gun to her head, and shoving her to the ground several times”—sufficiently established the requisite co nditional intent for carjac king, even though at the precise moment of the taki ng the defendants made no threats. 222 F.3d at
1292. We have said brandishing or othe rwise using a gun to take a motor vehicle may support an infere nce of conditional intent. See United States v.

14 This unpublished authority is not binding on the panel, but we find it persuasive. See 10th Cir. R. 32.1. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2021 Vallejos , 421 F.3d 1119, 1124 (10th Cir. 2005 ) (describing with approval other courts’ rulings that “when a carjacker br andishes a firearm an d orders a driver out of his car, it is reasonable for the dr iver, and for the jury , to infer that the carjacker is willing to use that firearm if the driver refuses to give up the car”). But intimidation al one is not enough. 15 See Malone , 222 F.3d at 1291–92 (relying in part on a de fendant forcing the car owne r “at gunpoint , out [of her house] to her car” in finding sufficient ev idence of conditiona l intent). We have also considered “whether there was physic al violence or touching and/or direct or implied verbal threats to kill or harm” as releva nt to the inquiry into conditional intent. United States v . Folse , 854 F. App’x 276, 289 (10th Cir. 2021) (citing Malone , 222 F.3d at 1291–92). 16 B Mr. Busch urges reversal, arguing the ev idence of condit ional intent was not sufficient beyond a re asonable doubt. According to Mr. Busch, each

15 The intent element for carjacking is distinct from the intimidation element, though evidence of intimida tion might be relevant to proving intent. Threats of force or actual use of force tend to show conditional intent to kill or seriously harm. But an “empty threat” or mere “intimidating bluff” standing alone is not sufficient to establish that intent. Malone , 222 F.3d at 1291. For example, “if a defendant ordere d a carjacking victim to do as he was told or he would be shot, while carrying an unloaded weapon, the intimidation element [for carjacking] wo uld be satisfied although the intent element might not.” Id

.

16 Folse , though not precedential, pers uasively shows how we have applied Malone in analogous circumstances. See 10th Cir. R. 32.1. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2122 defendant (including Mr. Busch) “res ponded to [Swenson ’s] conduct in a measured way that did not in dicate an intent to kill or cause [Swenson] serious bodily injury.” Opening Br. at 43– 44. Mr. Busch mainta ins the evidence showed only that he, He dgecock, and Barnes “act ed in a way designed to deescalate” the situation created by Swenson’s “drug-addled, paranoid impulses brought on by his methamphetamine addict ion”; none made verbal threats “to attack or shoot” Swenson; and “cer tainly [Swenson] was never physically touched.” Opening Br. at 44. Mr. Busch also argues the co-defendants were not “bra ndish[ing]” their weapons, cf

. Vallejos , 421 F.3d at 1124, because they did not “shake or wa[ve] a weapon menacingly.” Opening Br. at 44. We discern no reversible error. On de novo review, the record amply supports the jury’s finding that Mr. Bu sch possessed the requ isite conditional intent required by § 2119 . The evidence showed Mr. Busch harbored animosity toward Swenson, recruited others to show up arme d to Swenson’s home at night to take a dirt bike, drew and po inted a gun at Swenson when he emerged from the home, and ordered him to go back inside. Fo r example, the jury heard evidence from which it co uld reasonably conclude

 Mr. Busch had a motive to harm Sw enson (Swenson was dating Carlo, Mr. Busch’s ex-girlfriend) , RI.150–54; RIII.871–73; Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2223  Mr. Busch openly expressed hostility to Swenson and agreed with the others to “fuck him up” and “jack hi m up in front of his new lady” if he came outside, RI.146, 155; 17

 Mr. Busch and his friends arrived at Swenson’s house armed, in the middle of the night, RI .130–32; RIII.1366–68; 18

 Mr. Busch, Barnes, and Hedgecock all drew their weapons and pointed them at Swenson when he came outside, RIII.1237–38; and

 Mr. Busch yelled an order at Sw enson—“get back in the house, pussy”—while pointing a gun at him, RIII.1238. We have found sufficient evidence of conditional in tent in similar circumstances, particularly when the de fendant uses an imminent threat of force in a carjacking. See , e.g. , United States v. Hernandez , No. 22-2083, 2023 WL 4073726, at *1, *5 (10th Cir. June 20, 2023) (pressing gun into owner’s back while he drove was suffi cient to establish conditio nal intent). And we have acknowledged, evidence of an implied thre at to harm the vict im in the event of non-compliance with the defendant’s dema nds supports a finding of conditional intent. See Malone , 222 F.3d at 1291–92. 19

17 The government seems to suggest Mr. Busch said these words, but Mr. Busch correctly points out law enforcement actually made these statements. See Reply Br. at 11–12 (discussing the words “jack,” “punk” and “fuck him up”). A full review of th e record confirms Mr. Busch and Hedgecock expressly affirmed thes e sentiments during the interview. See RI.146, RI.155, RIII.1304–05.

18 We soon reject Mr. Busch’s chal lenge to the sufficiency of the evidence showing he carri ed a firearm that night.

19 The government urges affirmance, relying on Vallejos for the proposition that “[t]he use of a firearm in a carjacking sufficiently establishes Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2324 Accordingly, we conclude the evid ence was sufficient on the intent element of § 2119. V Mr. Busch next contends the evidence was insu fficient to convict him of conspiracy to commit carjacking resulting in death. We review de novo to determine whether the record, viewed in the light most favorable to the verdict, would permit any rational trier of fact to have convicted on the conspiracy count. See Workman , 577 F.3d at 1183. 20

the conditional intent requir ed by § 2119.” Answer Br. at 18 (citing 421 F.3d at 1123–24). The government points to language in Vallejos stating “the presence of a gun establishes that the defendant posse ssed the intent to seriously harm or kill the driver if necessary to steal the car.” 421 F.3d at 1124 (quoting Holloway , 526 U.S. at 3). Importantly, the few cases invoking this language from Vallejos have affirmed findings of condit ional intent base d on more than the presence of a gun. See Pena , 550 F. App’x at 566 (sufficient evidence of conditional intent based on “[t]he presence of the loaded guns, Pena’s threat to shoot Arthur, and his other aggressive behavior”); Hernandez , 2023 WL 4073726, at *5 (sufficient evidence of condit ional intent based on “[t]he open presence of Mr. Hernandez’s gun throu ghout this episode, and the evidence that Mr. Hernandez pointed the gun at Mr. Jackson’s back while he drove”); see also Malone , 222 F.3d at 1291 (sufficient ev idence of condit ional intent to harm the victim based on the facts that defendants ti ed up her family, held a gun to her head, and pushed her to the gro und several times). To affirm, we need not endorse the government’s broad framing of Vallejos —that the use of a firearm, without more, would conclusi vely establish the conditional intent element.

20 Mr. Busch raised the issue at le ast in part in the motion for a judgment of acquittal. See RIII.1373 (arguing for a ju dgment of acquittal on the conspiracy count based on insuffici ent evidence of sp ecific intent to commit the underlying offense—carjacki ng). And the government does not contest preservation. Because we readily conclude the evidence is sufficient Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2425 Under the general conspiracy statute, 18 U.S.C. § 371, “the government must prove the following el ements beyond a re asonable doubt: (1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the co nspiracy, (3) knowing and voluntary involvement, and (4) interdependenc e among the alleged conspirators.” United States v . Wardell , 591 F.3d 1279, 1287 (10t h Cir. 2009) (quoting United States v. Rogers , 556 F.3d 1130, 1138 (10t h Cir. 2009)). Mr. Busch focuses his sufficiency cha llenge on two elements: sp ecific intent to commit the predicate offense and interdepende nce. We consider each argument. Mr. Busch insists the government’s evidence on spec ific intent was lacking. He claims it show ed only he and his coconspi rators set out to “jack” a dirt bike and “talk shit” to Mr. Sw enson, which does not establish the “level of commitment necessary to achi eve such horrid cons equences” (here, the death of Swenson). Opening Br. at 49. The record proves otherwise. “[A] conviction for conspiracy requ ires the defendant to possess at least the degree of criminal intent nece ssary for the substantive offense that the parties are conspiring to commit.” Wardell , 591 F.3d at 1287. Mr. Busch

as to both elements Mr. Busch challe nges on appeal, we need not address whether his sufficiency challenge to one element in the motion for a judgment of acquittal could preserve his sufficiency cha llenge to another element of the same offense, or whet her the government waived the waiver by failing to assert it. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2526 possessed the requisite intent for carjacking, so this necessarily establishes he also possessed the requ isite intent for conspira cy to commit carjacking. See id . We thus reject Mr. Busch’s argument that the evidence was insufficient on the intent element of § 371. As to the interdependence elemen t, Mr. Busch maintains “[t]he government never proved how the othe r three friends stood to benefit by helping [Mr. Busch] take a dirt bike from [Swenson’s] property, much less how they planned to bene fit by killing their friend, Swenson.” Opening Br. at 50. This argument misunderstands the law. The interdependence prong considers “if the activities of a defendant charged with conspiracy facilitate d the endeavors of other alleged coconspirators or facilitate d the venture as a whole.” Id . at 1291 (quoting United States v. Horn , 946 F.2d 738, 740–41 (10th Cir. 1991)). Interdependence requires “proof that the conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged.” United States v . Hamilton , 587 F.3d 1199, 1208 (10th Cir. 2009) (quoting United States v. Heckard , 238 F.3d 1222, 1231 (10th Cir. 2001) (emphasis in original)). The “shared mu tual benefit” need not be material or personal to each actor; it requir es only evidence that a defendant’s “activities facilitate d the endeavors of another alleged coconspirator or Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2627 facilitated the venture as a whole .” Id . at 1209 (quoting United States v. Ailsworth , 138 F.3d 843, 851 (10th Cir. 1998)). Interdependence does not require pr oof that the coconspirators made prudent or pragmatic decisions for th eir own independent benefit, as Mr. Busch suggests. Rather, the evidence must show each co conspirator acted for a “shared mutual benefit within the scope of th e conspiracy charged ” and the activities of each “facilitated the endeavor as a whole.” Hamilton , 587 F.3d at 1208 (emphasis in original). Hamilton is instructive. There, the evidence of interdependence was su fficient beyond a reasonable doubt— even though Mr. Hamilton was not a member of the drug business and so did not benefit directly—because his conduct, procuring payment for one supplier, facilitated the overall venture. See id

. at 1209. So too here. The evidence shows Mr . Busch, Barnes, Hedgecock, and Terrell each facilitated the objective of the conspiracy. Fo r example, as the government persuasively details, Mr. Busch “came up with the plan, asked his friends to participate, selected th e motorcycle to be stolen, and pushed it off the property when it failed to start.” Answer Br. at 28. Reviewing de

novo , the evidence amply supports the go vernment’s view of the record. 21

21 The record shows Hedgecock drove the group to and from Swenson’s house and used her handgun to dete r Swenson from intervening, RIII.1224– 25, RIII.1237–38; Barnes pointed his gun at Swenson, watching his front door while Busch tried to start th e dirt bike, RIII.1227–28, RIII.1234–35; Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2728 Because the record reflects each co -defendant’s activities “facilitated the venture as a whole,” there was su fficient evidence of interdependence to support the conspiracy conviction. Id. at 1211 (quoting Ailsworth , 138 F.3d at 851). We thus affirm Mr . Busch’s conviction under § 371. VI Mr. Busch next contends the evid ence was insuffi cient to prove beyond a reasonable doubt he carri ed a firearm—an element of his convictions under 18 U.S.C. §§ 924(c) and 922(g)—and that the firearm or ammunition traveled in interstate commerce—an element of his conviction under § 922(g). 22 We review Mr. Busch’s argument de novo under our familiar standard, “viewing the evidence in the light most favorable to the prosecution” and asking if “ any rational trier of fact could have found [that element] of the crime beyond a reasonable doubt.” Workman , 577 F.3d at
1183.

and Barnes and Terrell help ed load the dirt bike into the truck bed, RIII.1246.

22 18 U.S.C. § 924(c)(1)(A) prohibi ts any person from “us[ing] or carr[ying] a firearm” “during and in re lation to any crime of violence” and provides additional penalties if th e person brandishes the firearm. 18 U.S.C. § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of, a crime p unishable by imprisonment for a term exceeding one year . . . to . . . possess in or affe cting commerce, any firearm or ammunition . . . which has been shi pped or transported in interstate or foreign commerce.” Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2829 A Mr. Busch first emphasizes—correct ly—no gun was ever recovered. But that alone is not dispositive of th e sufficiency issue. A jury could still find beyond a reasonable doubt—based on other evidence presented by the prosecution—Mr. Busch carried a firearm during the offense. See Desert Palace, Inc. v . Costa , 539 U.S. 90, 100 (2003). In Desert Palace , the Supreme Court emphasized it has “never questi oned the sufficiency of circumstantial evidence in support of a criminal co nviction, even though proof beyond a reasonable doubt is required.” Id . The Court added “juries are routinely instructed that the law makes no disti nction between the weight or value to be given to either direct or circumstantial evidence.” Id . (alteration adopted) (internal quotations omitted) . Accordingly, we consider both the direct and circumstantia l evidence here in de ciding whether there was sufficient evidence supporting Mr. Busc h’s firearms convictions; we do not require any particular piece or variety of evidence. Mr. Busch further contends the su rveillance camera footage from Swenson’s security system did not est ablish beyond a reasonable doubt that he possessed, see § 922(g), or carried, see § 924(c), a firearm. According to Mr. Busch, the video showed “for no more than a second, a black speck at [Mr. Busch’s] back near his waist band ,” and later showed “another black speck in his outstretched arm.” Open ing Br. at 60. Mr. Busch argues this Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 2930 footage is insufficient because te stimony from a witness is necessary to convict under the statute. In support, he relies on out-of-c ircuit precedents where eyewitness testimony establishe d sufficient evidence of firearm possession. See Opening Br. at 61–62. We are not persuaded. The authorities cited by Mr. Busch sh ow only that testimony may be sufficient to prove firearm possession, not that , as Mr. Busch mistakenly suggests, such testimony is necessary to prove the element beyond a reasonable doubt. 23 And our independent review of the surveillance video supports affirmance. The video shows

23 According to Mr. Busch, “[m]ost fe deral cases set a very low bar for proving whether a person possessed a fire arm,” but he insists “all expect at least a live witness to describe some characteristics of a real firearm.” Opening Br. at 61–62 (citing United States v . Jones , 16 F.3d 487, 491 (2nd Cir. 1994) (testimony from bank employ ees about a “silver gun with a white handle” sufficient to suppo rt a § 924(c) conviction); United States v . CruzDiaz , 550 F.3d 169, 173 (1st Cir. 2008) (testimony from bank employees about a “silver, shiny, ni ckel-plated pistol” sufficient to support a § 924(c) conviction); United States v . Castillo , 924 F.2d 1227, 1229 (2nd Cir. 1991) (testimony from a witness about a “dar k revolver” sufficient to support a § 924(c) conviction)). These cases give us no reason to doubt that properly admitted video footage is a sufficient basis for the jury’s fact-finding. See , e.g. , United States v . Kamahele , 748 F.3d 984, 1010 (10th Cir. 2014) (affirming a conviction under § 924(c) based on surveillance vi deo, the discovery of a matching gun, testimony by an accomplice that “the plan had called for [defendant] to carry a gun” and that defendant “had carried a sawed-off shotgun on the night of the robbery,” and testimony by a victim that the defendan t had “showed her a gun”); see also United States v . Bell , 290 F. App’x 178, 181 (10th Cir. 2008) (affirming a conviction under § 924(c) because “the surveillance video Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3031  Mr. Busch held in his hand a black ob ject about the size of a firearm, Supp. R. at 15 (12:45:28);

 Before he held the object in his ha nd, Mr. Busch carried the object in a place on his body typical of ca rrying firearms (his waistband), Supp. R. at 13 (12:45:25, 12:45:27);

 Mr. Busch took out the object an d pointed it at Swenson when Swenson came outside with a gun (r ather than, for example, seeking cover or running away), Supp. R. at 14–15 (12:45:27–28);

 Mr. Busch gave orders to Swenson wh ile pointing that black object at him, RIII.1238; and

 Hedgecock testified that she, Mr. Bu sch, and Barnes carried firearms that night and pointed their guns at Swenson when he came outside, RIII.1236–38. Still, Mr. Busch insists the object shown in the surveillance footage could “just as easily have been a wrench or other tool used to work on the dirt bike.” Reply Br. at 30. We disagree. Our review is limited to whether

any rational trier of fact could have determined the object was a gun—not whether there is a potentially reasonab le alternative interpretation of the evidence. See United States v . Hooks , 780 F.2d 1526, 1530 (10th Cir. 1986) (noting the Supreme Court “flatly re jected” the idea “that a criminal conviction cannot be sustained if a re asonable hypothesis could be designed which is consistent with innocence”); see also Jackson , 443 U.S. at 326 (declining to adopt a theory that “the prosecution was under an affirmative

clearly show[ed] the robber carryi ng a firearm” and “[m]oreover, two eyewitnesses testified that they saw the robber with a firearm”). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3132 duty to rule out every hy pothesis except that of guilt beyond a reasonable doubt”). And Mr. Busch’s position defies common sense on this record. The surveillance video shows Mr. Busch, Ba rnes, and Hedgecock all in similar postures, pointing objects of similar sizes and shapes at Swenson while shouting at him to go inside. It is undisputed Barnes and Hedgecock held

guns. Accordingly, we conclude a rati onal juror could have found the government met the firear m-possession element of § 922(g) and firearm-use element of § 924(c) beyond a reasonable doubt. See Workman , 577 F.3d at
1183. B Mr. Busch also argues there was in sufficient evidence the firearm traveled in interstate commerce. Opening Br. at 60. This argument is appropriately reviewed at most for pl ain error. Recall, when a defendant moves for a judgment of acquittal unde r Rule 29 “on specific grounds, all grounds not specified in the motion are waived.” Kimler , 335 F.3d at 1141 (quoting United States v. Chance , 306 F.3d 356, 369 (6th Cir. 2002)). When Mr. Busch’s counsel moved in the distri ct court for a judgment of acquittal on the firearms charges, he focused only on the possession element and did not challenge the interstate-nexus evidence. RIII.1372–73 (counsel disputing whether “what [Mr. Busch] was actually possessing at that time Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3233 was, in fact, a firearm,” but not addre ssing the interstate nexus). But review under the plain error standard and review of sufficiency of the evidence for a conviction “usually amount to largely the same exercise.” United States v . Wyatt , 964 F.3d 947, 952 (10t h Cir. 2020) (explaining “[a] conviction in the absence of sufficient evid ence of guilt” almost always meets the four factors of plain error—an error, that is plai n, affected the defendant’s substantial rights, and seriously affects the fair ness or integrity of the proceedings (quoting United States v. Rufai , 732 F.3d 1175, 1188 (10th Cir. 2013))). No matter which standard is applied, Mr . Busch cannot prevail on appeal. The government needed to prov e Mr. Busch “possess[ed] in or affecting commerce, any firearm or ammunition . . . which ha[d] been shipped or transported in inte rstate or foreign commerce.” 18 U.S.C. § 922(g)(1) (emphasis added). And there was sufficient evidence as to both the firearm and the ammunition to permit “ any rational trier of fact [to] have found [the intersta te commerce] element[] of the crime beyond a reasonable doubt.” See Workman , 577 F.3d at 1183. First, the government presented ex pert testimony that New Mexico’s 187 licensed firearm manufacturers could not sell a firearm to someone (like Mr. Busch) with a prior felony conviction. See RIII.1354–56. This testimony could have permitted a jury to find Mr. Busch’s firearm was manufactured out-of-state. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3334 Second, there was even more evidence on the intersta te nexus element for the ammunition. The statutory de finition of ammunition includes “primers” and “propellent powder.” See 18 U.S.C. § 921(a)(17)(A). The government’s expert testi fied that certain primers and powder are not manufactured in New Mexico. RIII. 1357–58. This testimony could have permitted a jury to find the ammunition in Mr. Busch’s firearm had traveled in interstate commerce. Because the surveillance footage and expert testimony provided sufficient evidence that Mr. Busch ca rried a firearm and that the firearm or ammunition had traveled in in terstate commerce , we affirm his convictions under §§ 924(c) and 922(g). VII We turn next to Mr. Busch’s ap pellate challenges to the jury instructions. Mr. Busch claims the distr ict court incorrectly instructed the jury on the elements of carjacking under § 2119(3). He also claims the district court erroneously deprived him of a jury instruction on self-defense to the carjacking charge. We consider each argument and conclude neither is properly before us on this record. A Mr. Busch first contends the death- results element of § 2119(3) should have been placed in a separate in terrogatory and faili ng to do so is Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3435 reversible error. See Opening Br. at 54–55. 24 Mr. Busch did not make this argument in the district court. Inste ad, he urged the district court to adopt the very formulation he now challe nges. Under these circumstances, the invited-error doctrine typi cally bars appellate review. See United States v . Deberry , 430 F.3d 1294, 1302 (10t h Cir. 2005) (“[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the part y had urged the district court to adopt.”). Mr. Busch insists the argument is pr eserved. He clai ms “[a]ppellant, and all the other codefendants, emph atically objected to the court’s proposed instruction” and asked to sepa rate the death-results element into another instruction and interrogatory. Opening Br. at 53–54. As relevant to preservation, Mr. Busch’s position is disingenuous. From what Mr. Busch tells us in his appellate briefing, it would seem defense counsel opposed the instruction in the district court (thus suggesting the argu ment advanced on appeal is preserved). But a review of the transcript confirms it was the prosecutor who objected to the proposed language. The court asked, “So

24 At oral argument, defe nse counsel also seemed to suggest the deathresults element should no t have been included at all

. See Oral Arg. 12:45- 13:12 (Mr. Busch’s counsel maintaini ng that the government asked the district court to include the death-resu lts element in a separate instruction, while the defense asked to omit it alto gether). Mr. Busch has not previously taken this position—neither on appeal nor in the district court. “[I]ssues may not be raised for the first time at oral argument.” United States v . Malone , 10 F.4th 1120, 1124–25 (10th Cir. 2021). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3536 what you’re asking -- Are you asking me to remove the fifth element from the current draft of Number 7?” RIII. 1530. The prosecutor responded, “That would be the objection, Your Honor. An d make it its own, like, a separate page, like a special interrogatory.” RIII.1530. Mr. Busch’s counsel opposed the gove rnment’s position and argued in favor of the instruction the court ultima tely gave (which is now challenged on appeal). “I would obje ct to doing that,” counsel for a co-defendant said, in response to the government’s prop osal to separate the death-results instruction into its own interrogatory. RIII.1532. “I think it’s totally proper the way the Court’s done it.” 25 RIII.1532. Mr. Busch’s counsel then specifically joined in th at objection “on behalf of Mr. Busch,” asking the court not to separate the death- results instruction into its own interrogatory. RIII.1532. We do not reach the meri ts of this legal challenge because Mr. Busch’s arguments are foreclosed by the invited-error doctrine.

25 We are compelled to remind counsel of their duty of candor as officers of the court. See Hollingsworth v . Perry , 570 U.S. 693, 722 (2013) (Kennedy J., dissenting) (recog nizing that “litigants and counsel who appear before a federal co urt[] are subject to duties of candor, decorum, and respect for the tribunal and co-parties alike”); see also Roosevelt-Hennix v . Prickett , 717 F.3d 751, 758 n.11 (10th Cir. 2013) (emphasizing that “[f]actual contentions made on appeal should be supported in the record” and reminding counsel “of the duty of candor to the court” when counsel had “failed to meet these important obligations”). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3637 B Mr. Busch also claims the district court erroneously refused to give a self-defense instruction on the carjacking count. 26 Opening Br. at 55–56. According to Mr. Busch, the district co urt should have “explained to the jurors” that if the co-def endants “did not have the intent to cause death or serious bodily injury should a crime have been committed in Appellant’s taking of the dirt bike . . . self-defense to the increasingly violent action of [Swenson], first pointing [his ] gun and then firing the gun, was appropriate.” Opening Br. at 55–56. “We review the district court’s decision to give a particular jury instruction for abuse of discretion; ho wever, we review the instructions as a whole de novo to determine whether th ey accurately informed the jury of the governing law.” United States v . Toledo , 739 F.3d 562, 567 (10th Cir. 2014). “Specifically, a defendant is en titled to an instruction on any

26 There is no dispute the district co urt refused to give the self-defense instruction on the carjacking count. But it is not entirely cl ear in the record whether the district court made an a ffirmative ruling on the issue. The parties have not identified the ruling nor did we locate it ourselves. We understand, however, the court func tionally denied a self-defense instruction on count two by ruling it wo uld permit a self-defense instruction only on count five, which char ged Mr. Barnes with murder. See RIII.1551 (the court noting, “I included [a self -defense instruction] just as to Count 5”). Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3738 recognized defense for which there is evidence sufficient for a reasonable jury to find in his favor.” Id

. But “[g]enerally, a federal appellate court does not consider an issue not passed upon below.” United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019) (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)); see also id

. (noting if an appellant fails to “cite the precise references in the record where the issue was raised and ruled on in the district court” then “we may assume the appellant did not preserve the issue for appeal and refuse to review the alleged error” (quoting Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1540 n.3 (10th Cir. 1996))). When an argument is forfeited in the district court, the issue on appeal is then subject to plainerror review. See Zander , 794 F.3d at 1232 n.5. But “[w]hen an appellant fails to preserve an issue and also fa ils to make a plain-error argument on appeal, we ordinarily deem the issue wa ived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise.” Leffler , 942 F.3d at 1196. On the record before us , we fail to see how Mr. Busch preserved in the district court his appellate argument on the self-defense instruction. Mr. Busch asserts on appeal “[he] and hi s co-defendants . . . argued that a self-defense instruction should have been allowed for the carjacking count two.” Opening Br. at 55 (citing RIII. 1547). But that portion of the record Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3839 reveals only the defe nse attorneys discussing various other jury instructions unrelated to self-defense and answering “no objection” as to each. We have also revi ewed the record independ ently and failed to find where Mr. Busch preserved this issue. 27 Perhaps Mr. Busch seeks to establish preservation through the advocacy of codefendant Barnes. But even if Barnes preserved the issue, “an objection by one defendant is not sufficient to preserve the issue for appeal for another defendant, at lea st when . . . there is no agreement among the defendants that an objectio n by one defendant will count as an objection by all defendants.” United States v . Zapata , 546 F.3d 1179, 1190 (10th Cir. 2008); see also United States v . Brown , 654 F. App’x 896, 905 (10th Cir. 2016) (relying on Zapata to find a challenge to certain expert testimony was not properly preserved when the record revealed “only objections made by [a codefendant], and seemingl y not joined by Brown”). 28 Mr. Busch makes no affirmative argumen t on appeal that Barnes’ advocacy has preserved the issue on his behalf.

27 For example, Mr. Busch’s couns el filed a brief opposing the government’s motion in limine , which in part asked the court to preclude a self-defense instruction, without addr essing that request or arguing a selfdefense instruction was warranted. See RI.232.

28 This unpublished authority is not binding on the panel, but we find it persuasive. See 10th Cir. R. 32.1. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 3940 We acknowledge the government di d not challenge preservation and addressed the issue on the merits. It seems the government has waived the waiver. See Dine Citizens Against Ruining Our Env’t v . Haaland , 59 F.4th 1016, 1038 n.9 (10th Cir. 2023) (reaso ning appellee “did not argue that the argument was waived in its response brie f, so the waiver has been waived”). Still, we retain a measure of discreti on over “what questions may be taken up and resolved for the first time on appeal.” Singleton , 428 U.S. at 121. For example, we may “determine an issue ra ised for the first time on appeal if it is a pure matter of law and it s proper resolution is certain.” First W. Cap. Mgmt. Co. v. Malamed , 874 F.3d 1136, 1144 (10th Cir. 2017) (quoting Cox

v. Glanz , 800 F.3d 1231, 1246 n.7 (10th Ci r. 2015)). Here, the “proper resolution” of the legal question is uncertain. 29 And the record—which suggests the issue was not raised by Mr . Busch or ruled upon with him in

29 For example, the government argue s self-defense does not apply to the death-results element of the ca rjacking statute. Answer Br. at 36–38. The death-results element of the carj acking statute has been characterized in dicta as a “strict-liability element.” See United States v . Moya , 5 F.4th 1168, 1181 (10th Cir. 2021) (reasoning th at the death-results element of a drug distribution statute was a stri ct liability element and citing the interpretation in United States v. Lowell , 2 F.4th 1291, 1293–95 (10th Cir. 2021), of the death-results element in the federal carjacking statute as a similar strict liability element). We cannot say Moya compels the conclusion the government advances. Moya concerns whether the government needed to prove a particular ment al state attached to the death-results element; it did not address the availability of affi rmative defenses. In any event, that issue is pending in co-defendant Barnes’s appeal. See No. 22-2147. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4041 mind—does not permit meaningful appella te inquiry into the parameters of the district court’s ruling. On the record before us, we adhere to the general rule that “[n]ormally when a party presents a new argument on appeal and fails to request plain error review, we do not address it.” Id

. (quoting Margheim v. Bulijko , 855 F.3d 1077, 1088 (10th Cir. 2017)). We therefore do not consider further whether the district court erred in fo rmulating the death-results element as part of the carjacking instruction and in failing to give a self-defense instruction to the carjacking charge. VIII Mr. Busch next argues the district court abused its discretion in excluding his toxicology expert. Open ing Br. at 56. Evidentiary rulings “generally are committed to the very broad discretion of the trial judge, and they may constitute an ab use of discretion only if based on an erroneous conclusion of law, a clearl y erroneous finding of fact or a manifest error in judgment.” Webb v . ABF Freight Sys., Inc. , 155 F.3d 1230, 1246 (10th Cir. 1998). According to Mr. Busch, the defens e expert would have testified that the concentration of methamphetamine in Swenson’s blood could have caused Swenson to have symptoms of “paranoia” and “con fusion” that evening. Opening Br. at 57. On appe al, Mr. Busch asserts he pl anned to argue the “level of methamphetamine in [Swenson’s] system” affected “whether he would act in Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4142 an unreasonable mann er.” RIII.2142. But there is a fundamental problem with Mr. Busch’s appellate posi tion. He never attempted to introduce a toxicology expert. Recall, at the pretrial conference, Mr. Busch’s trial counsel mentioned for the first time that the defense so ught to introduce a toxicology expert. RIII.2142. The deadline for designation of expert witnesses had passed, but the district court was willing to “reconsider a de adline if there’s good cause, if [Mr. Busch] [did] have an expert,” since there was “some time before trial.” RIII.2142. Ultimately, the district court deci ded it would “leave [it] up to [Mr. Busch]” whether to proffer an expert, as long as he could “s how good cause for this late notice.” RIII.2142. Mr. Busch never propos ed a toxicology expert, and he proceeded to trial without pr esenting testimony or evidence. Because Mr. Busch never proposed an expert, there is no ruling by the district court on the admission or exclusion of a toxicology expert. See Leffler , 942 F.3d at 1196 (a proper appeal must identify wher e in the reco rd “the issue was raised and rule d on in the district court”). The error alleged on appeal— the erroneous exclusion of the defense toxicology expert—simply did not occur. IX Mr. Busch’s final challenge on appeal is to the procedural reasonableness of his sentence. Proced ural reasonableness “focuses on the manner in which the sentence was calculated.” United States v . SanchezAppellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4243 Leon , 764 F.3d 1248, 1261 (10th Cir. 2014) (quoting United States v. Masek , 588 F.3d 1283, 1290 (10th Cir. 2009)) (internal quotations omitted); see also Gall v . United States , 552 U.S. 38, 51 (2007) (n oting that procedural sentencing error includes “failing to calculate (or improperly calculating) the Guidelines range, treating the Gu idelines as mandatory, failing to consider the § 3553(a) factors, sele cting a sentence based on clearly erroneous facts, or failing to adequa tely explain the ch osen sentence”). Mr. Busch contends the district court erroneously applied the obstruction-of-justice enhancement unde r U.S.S.G. § 3C1.1 to increase his base offense level. Mr. Busch objected to the enhancement in district court, so we review for an abuse of discretion. See United States v . Garcia , 946 F.3d 1191, 1211 (10th Cir. 2020). “A distr ict court by definition abuses its discretion when it makes an error of law.” Koon v . United States , 518 U.S. 81, 100 (1996). But we need not conclu sively resolve whether the district court erred. We agree with the governme nt that any error in the application of the obstruction enhancement was harmless on this record. A The Presentence Investiga tion Report (PSR) calculated Mr. Busch’s advisory Guidelines range based on a total offens e level of 43 and criminal history category of V. Supp. RII. 26, ¶ 82. The PSR also recommended an enhancement for obstruction of justi ce under U.S.S.G. § 3C1.1, which Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4344 provides for an increase of two in a defe ndant’s offense level if he “willfully obstructed or impeded, or attemp ted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” Supp. RII.10, ¶ 32. Mr. Busch objected to the application of the obstruction enhancement. Supp. RIII.6. He emphasized he “did not resi st his arrest, and did not threaten the safety of any law enforce ment officers at the sc ene of his arrest.” Supp. RIII.6. At sentencing, the district court found the “firearm [Mr. Busch carried during the offense] was never recove red by law enforcement” and “Mr. Busch evaded capture immediately an d in the days after the shooting despite being aware that law enforce ment was looking for him.” RIII.1822. Based on those findings, the distr ict court concluded Mr. Busch had obstructed or impeded the administration of justice for purposes of § 3C1.1 by “destroying or concealing . . . evidence that [wa]s material to an official investigation” and engaging in “conduct . . . calculated . . . to thwart the investigation.” RIII.1822–24. The tw o-level enhancement under § 3C1.1 increased Mr. Busch’s total offense level from 43 to 45. But 43 is the maximum offense level recognized by the Guidelines, as “an offense level of more than 43 is to be treated as an of fense level of 43. U. S.S.G. Ch. 5, Part A, cmt. n.2. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4445 The district court then considered “whether the guidelines counsel[ed] any departures.” RIII.1825. 30 The court noted the advisory guideline for robbery, U.S.S.G. § 2B3.1(c)(1), cross references § 2A1.1. See § 2B3.1(c)(1) (“If a victim was killed under circu mstances that would constitute murder . . . , apply § 2A1.1 (First Degree Murder).”). In turn, U.S.S.G. § 2A1.1, cmt. n.2(B) provid es in a sentencing for first-degree murder, “[i]f the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted.” “[A]lthough [Mr. Busch] . . . was a ch ief instigator of the conspiracy,” the district court found, “he was no t the shooter and was not in the immediate vicinity where the shots we re fired.” RIII.1826. Mr. Busch did not “commence the carjacking with the purpose of killing the victim,” the district court reasoned. RIII.1826. The district court determined there was a “sufficient basis to depart to offens e level 38”—the base offense level for second-degree murder. RIII.1827. This ma de the advisory Guidelines range

30 Departures are sentences outside of the advisory Guidelines range authorized by specific policy statements. See U.S.S.G. Ch. 1, Pt. A Subpt. (1)(4)(b). The Guidelines provide “[w] hen a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” U.S.S. G. Ch. 1, Pt. A, Subpt. (1). Here, the record does not reveal whether th e court raised the possibility of a departure at Mr. Busch’s request or sua sponte , although the court noted “a departure [wa]s wholly within [its] discretion.” RIII.1825. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4546 360 months to life. RIII.1827. The di strict court ultima tely imposed a sentence of 480-months imprisonment. 31 RI.785–87. B Mr. Busch urges a remand for resent encing. He claims the district court impermissibly based the obstructi on enhancement on his attempt to evade arrest. In support, Mr. Busch points to U.S.S.G. § 3C1.1, which identifies “avoiding or fleeing from arre st” as an example of “conduct [that] ordinarily do[es] not warrant applic ation of this adjustment.” U.S.S.G. § 3C1.1 cmt. n.5(D); see also Stinson v. United States , 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines Manu al that interprets or explains a guideline is authoritative unless it viol ates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). Faced with the language of the Commentary, the government does not meaningfully dispute the district court erred. Rather, the government contends any error is harmle ss. On the unique facts of this case,

we agree.

31 Mr. Busch was sentenced to concu rrent prison terms of 60 months on Count 1, 396 months on Count 2, and 120 months on Count 7, and a consecutive term of 84 months on Coun t 4, for a total of 480 months. RI.785– 87. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4647 1 When a defendant “meets the initia l burden of showing that the district court erred” in calculati ng an advisory sentencing range, “resentencing is required only if the error wa s not harmless.” United States

v . Eddington , 65 F.4th 1231, 1243 (10th Cir. 2023) (quoting Sanchez-Leon , 764 F.3d at 1262). In the sentencing context, “[h]armlessness must be proven by a preponderance of the ev idence,” and “the beneficiary of the error”—here, the government—b ears the burden of proof. Id . (quoting Sanchez-Leon , 764 F.3d at 1262). In this cont ext, “an error is harmless if it ‘did not affect the distr ict court’s selection of the sentence imposed.’” United States v. Keck , 643 F.3d 789, 798 (10th Cir. 2011) (quoting United States v . Labastida-Segura , 396 F.3d 1140, 1143 ( 10th Cir. 2005)). The government urges affirmance under United States v . Keck . That case concerned a procedur al reasonableness challe nge to the defendant’s sentence for a drug conspiracy conviction. Id. at 797. There, we found the district court erred by applying se ntencing enhancements based on an incorrect drug quantity. Id

. The erroneous enhancement increased the defendant’s base offense level from 46 to 48. Id . at 801. Still, we concluded the error could be deemed harmless for two reasons. See id

. First, “the sentencing error did not affect . . . the advisory sentence,” since the Guidelines provided that any offense level above 43 would be treated as an Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4748 offense level of 43. See id . (“According to the senten cing table, an offense level of 43 or above results in an advi sory sentence of life imprisonment.”). Second, the error did not affect “the district court’s reasoning in imposing a life sentence,” since the district court had identified on the record reasons unrelated to drug quanti ty—such as deterrence—to justify the sentence imposed. Id . at 802.
2 We agree with the gove rnment that, on this record, affirmance is appropriate under Keck . Here, as in Keck , the advisory Guidelines range was unaffected by the alleged error beca use the base offense level was at or above the maximum recognized offense level. See id . at 801. As calculated, Mr. Busch’s offense level was 43 (witho ut the obstruction enhancement) or 45 (with the enhancement). Because, as the district court correctly observed, “the sentencing guidelines max out at offense level 43,” both carry the same advisory Guide lines sentence—life impr isonment. RIII.1825. Then, the district court specifically departed downward to offense level 38, because it found “Mr. Busc h did not commence th e carjacking with the purpose of killing of the victim” bu t rather that “his actions were, at best, extremely reckless and negligent. ” RIII.1826. The district court found it appropriate, “based on this conduct,” to depart sp ecifically to the offense level for second-degree murder. RIII.1826–27. Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 4849 And the district court’s reasoning at sentencing seems to have been unaffected by the error. In Keck , no facts relating to the erroneous adjustment for drug quantity featured in the district court’s rationale at sentencing. See id . at 802 (observing “the district court indicated it relied on . . . (1) the severity of the offense; (2) the necessity to protect the community and to deter future drug conspiracies; and (3) the lack of circumstances justifying a variance” ra ther than on any facts associated with the upward adjustment). Similarly, here, the district court did not rely on facts relating to the obstruction of justice enhancemen t in selecting the ultimate sentence imposed of 480-months imprisonment. Even assuming the district court im properly applied the enhancement under § 3C1.1, Mr. Busch’s proced ural reasonableness challenge is unavailing on this record. The govern ment has shown that any error was harmless because it did not affect th e district court’s selection of Mr. Busch’s sentence. XI We AFFIRM Mr. Busch’s conviction and sentence.

ENTERED FOR THE COURT

Veronica S. Rossman Circuit Judge Appellate Case: 22-2161 Document: 010111087311 Date Filed: 07/30/2024 Page: 49