*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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 possession 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 involved in the offense, and enhanced by

four levels under U.S.S.G. § 2K2.1(b)(5) because the firearm was used in the

commission of another felony. Herrman appeals both enhancements. For the reasons
1

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.

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set out below, we affirm.1

Herrman contends the district court imposed an impermissible burden on him in

the sentencing hearing to prove that an enhancement was inapplicable. The

government has the initial burden of proof by a preponderance 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 found

that where the government has advanced credible evidence 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 enhancement is inapplicable. The court

thus did not place the burden of proof on defendant.

The Sentencing Guidelines provide for an enhancement of two levels “[i]f any

firearm was stolen, or had an altered or obliterated 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 permanently of the possession, use

or benefit of the owner’s property,” Kan. Stat. Ann. § 21-3701 (1995) (emphasis

added), and urges that no such intent was proved. In determining the meaning of
2

 Kansas law is not inconsistent with this conclusion. “Criminal

deprivation of property is obtaining or exerting unauthorized control over

property, with intent to deprive the owner of the temporary use thereof, without

the owner’s consent . . . .” Kan. Stat. Ann. § 21-3705 (1995). 

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“stolen” as used in the sentencing guidelines, however, we have looked to the

meaning of that term in other federal statutes. See 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 suited the purposes of the taker.”

McCarthy v. United States, 403 F.2d 935, 938 (10th Cir. 1968). It is undisputed in

the present case that Michael Aldridge was deprived of possession of the gun without

his consent. We are persuaded the gun was stolen within the meaning of section

2K2.1(b)(4).2

Herrman also argues that our opinion in Rowlett precludes application of the

enhancement for a stolen weapon. His argument stands the Rowlett decision on its

head. The underlying offense there was committed in the attempt to steal the weapon;

only after the offense was committed was the weapon “stolen.” Rowlett, 23 F.3d at

304-05. Rowlett stands only for the proposition that the gun involved 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 after the

gun was stolen.
-4-

The Sentencing Guidelines also provide for a four level enhancement “[i]f the

defendant used or possessed any firearm or ammunition in connection with another

felony offense.” U.S.S.G. § 2K2.1(b)(5). The district court found that Herrman had

used a gun to commit an aggravated assault. Herrman asserts several errors: first,

that the court gave insufficient weight to the dismissal 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 of aggravated assault were not proved;

fourth, that the court erred in not finding self-defense; 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 2K2.1 accordingly indicates that

“whether or not a criminal charge was brought, or conviction obtained” under a

higher burden of proof, is irrelevant to the application 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 assault, the district court

principally relied on the testimony of ATF Agent Stumpenhaus. Herrman concedes

that reliable hearsay may be used in sentencing, but asserts under United States v.

Fennell, 65 F.3d 812, 813 (10th Cir. 1995), that Agent Stumpenhaus’ testimony

lacked the minimal indicia of reliability. In Fennell, 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 taken 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 interviewed 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 evidence is sufficiently reliable. 

Based on Agent Stumpenhaus’ testimony, the district court could infer from the

bullet trajectory and other evidence that intent, apprehension of harm, and the other

elements of aggravated assault were present. The court’s finding that Herrman did

not act in self-defense is also supported by evidence in the record and is not clearly

erroneous.

Finally, Herrman asserts the district court never determined that aggravated

assault is a qualifying felony. We have examined the 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