* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 10th Cir. R. 36.3.



### UNITED STATES COURT OF APPEALS Filed 10/28/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMIE M. HERRMAN, Defendant-Appellant. No. 96-3076 (D.C. No. 95-CR-40049-1) (Dist. Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.
Appellant Jamie Herrman pled guilty to unlawful pos session of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) , 924(a)(2), and 2. At sentencing, the district court enhanced Herrman’s base offense level by two levels under U.S.S.G. § 2K2.1(b)(4) because a stolen firearm was involvedin the offense, and enhanced by four levels under U.S.S.G. § 2K2.1(b)(5) because th e firearm was used in the commission of another felony. Herrman appeals both enhancements. For the reasons1 After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. -2- set out below, we affirm. 1 Herrman contends the district court imposed an impe rmissible burden on him in the sentencing hearing to prove that an enhancementwas inapplicable. The government has the initial burden of proof by a pre ponderance of the evidence that an enhancement applies to the defendant. See United States v. Rutter , 897 F.2d 1558, 1560 (10th Cir.), cert. denied , 498 U.S. 829 (1990). Here, the court correctly f ound that where the government has advanced credible evi dence from which reasonable inferences can be drawn to justify the application of sentence enhancements, the burden of proof by a preponderance of the evidence is satisfied unless the defendant advances more convincing evidence that the enhancem ent is inapplicable. The court thus did not place the burden of proof on defendant

. The Sentencing Guidelines provide for an enhancemen t of two levels “[i]f any firearm was stolen, or had an altered or obliterate d serial number.” U.S.S.G. § 2K2.1(b)(4). Herrman first asserts the government failed to adduce sufficient proof that the firearm was stolen. Herrman relies on the definition of “theft” under Kansas law, which requires “intent to deprive the owner pe rmanentlyof the possession, use or benefit of the owner’s property,” Kan. Stat. An n. § 21-3701 (1995) (emphasis added), and urges that no such intent was proved. In determining the meaning of2 Kansas law is not inconsistent with this conclusio n. “Criminal

deprivation of property is obtaining or exerting un authorized control over property, with intent to deprive the owner of the t emporary use thereof, without the owner’s consent . . . .” Kan. Stat. Ann. § 21- 3705 (1995). -3- “stolen” as used in the sentencing guidelines, howe ver, we have looked to the meaning of that term in other federal statutes. Se e United States v. Rowlett , 23 F.3d 300, 303 (10th Cir. 1994). Construing the Dyer Act , for example, we have concluded that a vehicle may be “stolen” “whether or not the theft constitutes common law larceny” and “whether the intent was to deprive the owner of his rights and benefits in the vehicle permanently, or only so long as it s uited the purposes of the taker.” McCarthy v. United States , 403 F.2d 935, 938 (10th Cir. 1968). It is undisp uted in the present case that Michael Aldridge was deprived of possession of the gun without his consent. We are persuaded the gun was stolen w ithin the meaning of section 2K2.1(b)(4). 2 Herrman also argues that our opinion in Rowlettprecludes application of the enhancement for a stolen weapon. His argument stan ds the Rowlettdecision on its head. The underlying offense there was committed i n the attempt to steal the weapon; only after the offense was committed was the weapon “stolen.” Rowlett , 23 F.3d at 304-05. Rowlettstands only for the proposition that the gun invol ved must have been stolen prior to and not as part of the offense for which the defendant is being held responsible. Here, the underlying offense of possession was committed afterthe gun was stolen.-4-

The Sentencing Guidelines also provide for a four l evel enhancement “[i]f the defendant used or possessed any firearm or ammuniti on in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). The dist rict court found that Herrman had used a gun to commit an aggravated assault. Herrma n asserts several errors: first, that the court gave insufficient weight to the dism issal of the assault charges in state court; second, that the sentencing court did not have sufficient credible evidence to support its finding; third, that all the elements o f aggravated assault were not proved; fourth, that the court erred in not finding self-de fense; and fifth, that the court did not find that aggravated assault is a qualifying felony under Kansas law. The government must prove by a preponderance of the evidence that the guideline applies. Application Note 7 to section 2 K2.1 accordingly indicates that “whether or not a criminal charge was brought, or c onviction obtained” under a higher burden of proof, is irrelevant to the applic ation of the guideline. The sentencing court therefore did not err in declining to give probative weight to the dismissal of the aggravated assault charge in state court. For proof that Herrman committed an aggravated assa ult, the district court principally relied on the testimony of ATF Agent St umpenhaus. Herrman concedes that reliable hearsay may be used in sentencing, bu t asserts under United States v. Fennell , 65 F.3d 812, 813 (10th Cir. 1995), that Agent Stu mpenhaus’ testimony lacked the minimal indicia of reliability. In Fenn ell , we found insufficient reliability where the sole basis for finding an enhancing felony was the testimony of a probation-5-

officer as to the unsworn statement of a witness ta ken over the telephone. Id. The probation officer had no opportunity to assess the credibility of the witness, and there was no other evidence in the record to corroborate the witness’s account. Id. Here, in contrast, Agent Stumpenhaus personally interview ed numerous witnesses and was subject to cross-examination about his credibility assessments. He also described the on-scene physical evidence that formed the basis of his testimony. In addition, the district court relied on police reports. This evid ence is sufficiently reliable. Based on Agent Stumpenhaus’ testimony, the districtcourt could infer from the bullet trajectory and other evidence that intent, apprehension of harm, and the other elements of aggravated assault were present. The c ourt’s finding that Herrman did not act in self-defense is also supported by eviden ce in the record and is not clearly

erroneous. Finally, Herrman asserts the district court never d etermined that aggravated assault is a qualifying felony. We have examined t he Kansas statutes, Kan. Stat. Ann. §§ 21-3410, 21-4704 (1995), and are persuaded that aggravated assault is a qualifying felony (punishable by more than one year in prison) for section 2K2.1(b)(5) sentence enhancement.
AFFIRMED. Entered for the Court,
Stephanie K. Seymour Chief Judge