FILED

United States Court of Appeals

Tenth Circuit

January 9, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS DURELL HOOKS and

ROBERT CHAVELLE FERRELL,

Defendant-Appellants.

Nos. 08-7021

and 08-7026

Appeal from the United States District Court

for the Eastern District of Oklahoma

(D.C. Nos. 6:07-CR-00032-RAW-1 & 2)

08-7026, US v. Ferrell, Submitted on Oral Argument and 08-7021, US v. Hooks,

Submitted on the Briefs:

Robert Ridenour, Assistant Federal Public Defender (Julia L. O’Connell, Federal

Public Defender, and Barry L. Derryberry, Research and Writing Specialist, with

him on the briefs), Office of the Federal Public Defender, Northern and Eastern

Districts of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant Ferrell.

Roger Hilfiger, Muskogee, Oklahoma, on the briefs for Defendant-Appellant

Hooks.

Rob Wallace, Assistant United States Attorney (Sheldon J. Sperling, United

States Attorney, with him on the briefs), Muskogee, Oklahoma, for PlainitffAppellee.
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Before, TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

On August 23, 2007, a jury convicted both Marcus Durrell Hooks and

Robert Chavelle Ferrell of possessing a firearm after former felony conviction in

violation of 18 U.S.C. § 922(g)(1) and (2). Mr. Hooks and Mr. Ferrell appeal

their convictions. Defendants challenge the sufficiency of the evidence

supporting their convictions as well as the adequacy of the jury instructions, the

factual basis for the application of an enhancement statute, and the district court’s

failure to compel the testimony of a witness during sentencing. We affirm Mr.

Hooks’ conviction but reverse the conviction of Mr. Ferrell.

I.

Background

Around dusk on the evening of October 24, 2006, local law enforcement set

up a safety checkpoint at the intersection of State Highway 9 and State Highway

52 in McIntosh County, in the Eastern District of Oklahoma. Soon thereafter a

Dodge pickup truck with dark tinted windows slowly approached the checkpoint

lane manned by Officer Burkley Cash. The pickup stopped after Officer Cash

knocked on the driver’s side window and asked the driver to roll down his

window. Officer Cash peered into the vehicle and saw a driver, later determined
1

 The government asserted during oral argument that Officer Cash testified

“Ferrell was turned with his back against the passenger door and there was a

jacket laying in his lap . . . .” Audio Recording, Oral Argument at 14:54 (Nov.

20, 2008) (on file with Tenth Circuit) (emphasis added). The implication was that

Mr. Ferrell could have been hiding a gun on his lap. To the contrary, Officer

Cash did not testify about a jacket lying in Mr. Ferrell’s lap. He made only one

reference to a jacket. When asked whether Mr. Ferrell claimed ownership of any

items in the pickup, Officer Cash testified “[h]e had a coat.” Rec., vol. IV at 108. 

We admonish the government for making material factual assertions to the court

not supported by the record. 

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to be defendant Hooks, and a front seat passenger, later determined to be

defendant Ferrell. Mr. Ferrell was turned towards the driver’s side window, back

against the passenger side door and “square with” Officer Cash.1

 Officer Cash

scanned the interior of the pickup and saw what appeared to be a revolver with a

wooden handle and black cylinder and hammer lodged in the seat next to the

driver’s right leg. In response, he reached for his weapon and yelled “gun.” 

Rec., vol. IV at 38. The pickup rapidly sped away. Officer Cash pursued the

vehicle in his patrol car, initiating his emergency lights, dash camcorder, and

sirens. Two other patrol cars followed. Officer Cash testified that he did not see

anything thrown from the pickup during the pursuit. However, another officer in

one of the following patrol cars, Timothy Turner, testified that he saw a dark

colored shirt floating in the air in front of his unit’s hood on the passenger side. 

The pursuit of the pickup lasted only about a mile. Once the vehicle

stopped, the officers performed a felony stop. Mr. Hooks and Mr. Ferrell exited

the driver’s side of the vehicle; shortly thereafter, the officers discovered two
2

 Upon being asked whether there were “any other windows that could be

opened in th[e] pickup other than the side windows,” Officer Cash responded that

“[t]here was a hole on the passenger side rear window, on the window – the back

window of the vehicle, there was a large hole actually coming out of it.” Rec.,

vol. IV at 83. Officer Cash did not testify “to th[e] effect,” as the government

contends, that the back window could not be opened from the inside. Audio

Recording, Oral Argument at 17:15. Further, no one testified that “[t]he hole was

in the back window of the truck [on the passenger’s side] . . . behind the back seat

passengers,” as the government asserted at oral argument. Id. at 22:21 (emphasis

added). 

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additional passengers hiding in the backseat. Officer Cash placed Mr. Hooks and

Mr. Ferrell in his patrol unit, which had interior and exterior audio recording

devices. The officers then searched the pickup. The pickup had two doors, two

front side windows, and two rear side windows. The record is unclear as to

whether the rear passenger windows could be opened from the inside.2

 Officer

Cash testified that he discovered a “large hole” in the passenger side rear window

of the pickup. The officers also discovered marijuana crumbs in the vehicle. 

During the officers’ search, the audio recorder on Officer Cash’s patrol unit dash

cam recorded conversation between Mr. Hooks and Mr. Ferrell. The dash cam

did not record defendants’ facial expressions or lip movement, however, because

the dash cam was pointed toward the front windshield. 

The officers failed to locate any firearms in the pickup. Accordingly, as he

transported Mr. Hooks and Mr. Ferrell to the local jail, Officer Cash retraced a

portion of the route he had taken in pursuit of the truck. Officer Cash found a

black t-shirt he had not see before in the eastbound lane on the south side (or
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“passenger side”) of the road. The black t-shirt lay approximately three-quarters

to half of a mile back from where the officers had first stopped the pickup. 

Officer Cash also found several brass nine millimeter bullets and a nine

millimeter Uzi M-11 in a nearby adjacent ditch located ten to fifteen feet from the

edge of the road. The Uzi did not match the weapon Officer Cash believed he

saw in the pickup. Officer Turner asked Mr. Hooks about the whereabouts of the

gun that Officer Cash had seen in the pickup. He testified that Mr. Hooks said he

had no gun but only wooden handles (or grips) for a gun, which he had thrown

out of the pickup during the chase.

Late the next day, Officer Cash and Officer Turner again searched the area

along the route of the pursuit. Officer Cash found a .38 ROHM revolver with a

plastic, wooden-looking grip that matched the pistol he believed he had seen in

the pickup the day before. The .38 revolver lay fifteen to twenty feet off the road

from where they had found the black t-shirt and approximately ten feet from

where the Uzi was found. The government subsequently charged Mr. Hooks with

possession of the .38 revolver, and Mr. Ferrell with possession of the Uzi-type,

SWD Cobray M-11.

Before trial, the government sought to admit excerpts of the video from

Officer Cash’s dash cam with transcribed captions of the audio on the bottom of

the screen. The audio included conversation that occurred between Mr. Hooks

and Mr. Ferrell while seated in the patrol car. Both defendants filed motions to
3

 During the pretrial hearing, defense counsel acknowledged,

[Counsel for defendants] went over a week or two ago and spoke

with [the prosecutor] and we went over the tape and we listened to it

and we – though we object to the admission of the transcript and to

the contents of it, we agreed that it sounded as if that’s what it said

on there. And no objection to that.

Rec., vol. IV at 153-54.

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exclude the video, with Mr. Hooks seeking to exclude any transcript of the audio

recording as well as the video. Mr. Hooks claimed that the audio was not

sufficiently audible, that the audio itself – not interpretations in transcripts – was

the “best evidence” of the dialogue, and that the video would confuse or mislead

the jury under Fed. R. Evid. 403. The district court denied defendants’ motions. 

The court instructed counsel to attempt to stipulate to the contents of the

transcripts to be admitted at trial. Counsel for the parties met and agreed on what

the video clips said and transcripts were prepared in accordance with the parties’

informal agreement.3

At trial, defendants renewed their objections to the admission of the

transcripts, arguing that parts of the audio were inaudible and that the transcripts

would be emphasized over that portion of the audio the jurors could actually hear

and understand. They contended that “reasonable minds c[ould] differ about

what[] [was] being said on the tape.” Rec., vol. IV at 155. The district court

overruled their objections. The court allowed the transcription of the audio to be

displayed as captions on the video, but did not permit written transcripts to be
4

 An ATF agent testified that, based on his training and experience, the

term “strap” means a pistol or firearm in street slang. The agent admitted,

however, that the term could have other meanings in other contexts.

5

 The officers found marijuana crumbs in the passenger compartment of the

pickup.

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given to the jury. The district court reasoned that because the government’s case

rested almost entirely on the video clips, which admittedly were of poor quality,

the jurors should deliberate based on what they actually heard – not on someone

else’s interpretation.

The jury watched four video clips displaying the captions. The following

excerpted conversations occurred during and immediately after the officers

searched the pickup while defendants were sitting in the patrol car: 

Hooks: Well he just pulled up, they must have found it

Ferrell: Huh they found it

. . . . 

Hooks: They must have found them straps [(i.e., guns)4

] and shit we

fixin to be gone

Ferrell: Hell no I ain’t gone

Hooks: I am gonna get hit with all that shit they find

Ferrell: Hmm

Hooks: They gonna hit me with all that shit that they find

Ferrell: They still tryin to scrape up these [marijuana] crumbs [5]

 cuz. 

You see them scraping up those crumbs?

Hooks: uh huh

Gov’t Ex. 1, Tr. of Video Clip 1; see also Rec., vol. IV at 174-75.

Ferrell: We took a fat loss Cuz.

. . . .

Hooks: A fat ass loss and the man coming with more money.

Ferrell: And we fixin to lose more.

Hooks: I pray to god they ain’t gonna find that shit[.]
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Gov’t Ex. 2, Tr. of Video Clip 2. The government also introduced excerpts of

conversation that occurred after the discovery of the Uzi M-11 and during Officer

Cash’s inspection of the firearm.

Ferrell: Whose Uzi?

Officer Cash: Huh?

Ferrell: Did you say you found an Uzi?

Officer Cash: Yeah, I found an Uzi. Probably ain’t you all’s, is it?

Ferrell: Huh? Hell, no.

Officer Cash: No, you all just carry marijuana and gun stocks, right?

[(vehicle door closes)]

Ferrell: As long as they don’t find that revolver, cuz, you cool, cause

he stated he thought it was a revolver (inaudible). We can beat that

shit in court.

Ferrell: Your fingerprints on all that?

Hooks: I think I touched that home [sic].

Ferrell: As long as he don’t find that revolver.

Gov’t Ex. 3, Tr. of Video Clip 3.

Hooks: See if there’s one in the chamber.

Ferrell: He don’t even know how rack it [(i.e., the Uzi)], dumb

bastard.

Ferrell: One in the chamber.

Hooks: They wasn’t none in the chamber.

Ferrell: Wasn’t in the chamber?

Hooks: huh uh

Ferrell: They gonna have to clean it to get a fingerprint off of that

cuz.

Gov’t Ex. 4, Tr. of Video Clip 4. 

Before closing arguments, the district court instructed the jury. The

instructions did not include a limiting instruction regarding the jury’s possible

reliance on the transcribed captions over the actual audio. Neither the

government nor defendants requested such a limiting instruction. The jury
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returned guilty verdicts against both defendants.

A probation officer prepared presentence reports (“PSR”) for defendants

prior to their respective sentencing. Neither Mr. Hooks nor Mr. Ferrell initially

filed objections to their PSRs. The Government objected to both PSRs, however,

claiming that the reports should have included enhancements for firearm

possession in connection with another felony offense, i.e., possession of

controlled substances with intent to distribute, in accordance with U.S.S.G. §

2K2.1(b)(6). Both PSRs described “The Offense Conduct” as including “a yellow

envelope containing a plastic bag that had numerous blue pills believed to be

ecstasy,” which was found near the Uzi M-11. Rec., vol. VI at 2; accord Rec.,

vol. VII at 2. The PSR noted that “104 of the tablets were found to be [a

combination of] Methamphetamine and 3,4 Methylenedioxymethamphetamine

(ecstacy).” Rec., vol. VI at 2; accord, Rec., vol. VII at 2. According to the

government, it did not disclose or admit the contents of the envelope at trial

because of this evidence’s highly prejudicial nature and lack of relevancy to the

crimes charged. 

Defendants filed objections in response to the government’s objections. 

Mr. Hooks pointed out that “there was no testimony at trial concerning the

envelope and its contents.” Rec., vol. VI at 11. According to Mr. Hooks, “any

evidence of proximity to firearms was only as to the envelope being near the

[Uzi] which was charged to Ferrell and not Hooks, and the Hooks firearm was
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found at a later time and 15 feet or more from the envelope.” Id. He further

asserted “the government had an opportunity to charge this in an indictment . . .

and the enhancement requested should not be allowed without the evidentiary

standards afforded a defendant at trial.” Id. The government did not proffer any

additional evidence. 

At the sentencing hearing, Mr. Ferrell sought to present testimony from one

of the pickup’s backseat passengers. He wanted to question this individual about

his possession of the ecstacy found near the firearms, to which he had pled guilty

in state court. Mr. Ferrell’s counsel stated that he intended to ask the witness

whether Mr. Ferrell could “have reached up there and grabbed that dope and took

off with it, which evidences possession.” Rec., vol. V at 18. Before Mr. Ferrell’s

counsel could make such an inquiry, the witness asserted his Fifth Amendment

privilege against self-incrimination. Mr. Ferrell’s counsel requested that the court

compel the witness to testify, but the court declined, concluding that it would not

compel testimony about a matter that could lead to federal prosecution of the

witness.

Based on the record, the district court applied the § 2K2.1(b)(6)

enhancement to Mr. Hooks and Mr. Ferrell. The court reasoned that 

[t]he availability of [Mr. Ferrell]’s gun in such close proximity to the

drugs in this case is sufficient evidence of a connection between the

firearm and the drugs to invoke the application of the four level

enhancement. . . . [T]he Court finds by a preponderance of the

evidence that [Mr. Hooks] should be held accountable for also
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possessing his firearm in connection with the possession of [ecstacy]

with intent to distribute since all these items were thrown from the

same vehicle during the police pursuit.

 

Id. at 21-22; see also id. at 31. The district court adopted the PSRs, with 

modified base offense levels, as the factual basis for defendants’ sentences. 

Defendants objected to the court’s sentencing determinations.

Defendants assert several grounds for appeal. They seek reversal of their

convictions or, alternatively, remand for resentencing. Mr. Hooks argues that the

district court erred in allowing the jury to view the video clips without giving a

limiting instruction regarding the weight to be given to the transcribed captions. 

He contends the evidence is insufficient to support his conviction for felonious

possession of the .38 revolver. He also asserts that the district court erred in

applying the four-point enhancement to his sentence without factual support in the

record.

Mr. Ferrell asserts two grounds for appeal. He argues that the evidence is

insufficient to support his conviction for possessing the Uzi under the principles

of constructive possession and joint occupancy. He also contends the district

court abused its discretion by allowing a prospective sentencing witness to assert

his Fifth Amendment privilege against self-incrimination, thereby denying Mr.

Ferrell the opportunity to present evidence relevant to sentencing.
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II.

Sufficiency of the Evidence 

We review de novo challenges to the sufficiency of the evidence. United

States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002). In ascertaining

sufficiency, we view all of the evidence in the light most favorable to the

government and ask whether a reasonable jury could have found the defendant

guilty beyond a reasonable doubt. United States v. Hamilton, 413 F.3d 1138,

1143 (10th Cir. 2005). We reverse a conviction only if no reasonable jury could

have reached the challenged verdict. See United States v. Wilson, 107 F.3d 774,

778 (10th Cir. 1997). 

To prove constructive possession under 18 U.S.C. § 922(g)(1), the

government must show, inter alia, that the defendant “knowingly [held]

ownership, dominion, or control over the object and the premises where it is

found.” United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000) (alteration

in original). Stated another way, the government must show that the defendant

had knowledge of and access to the firearm. Id. In the case of joint occupancy of

a structure or vehicle, as here, “evidence of knowledge and access may be proved

by direct evidence, or inferred from circumstantial evidence, so long as the

circumstantial evidence includes something other than mere proximity . . . .” 

United States v. Jameson, 478 F.3d 1204, 1209-10 (10th Cir. 2007) (emphasis

added); see also United States v. Hanrahan, 508 F.3d 962, 969 (10th Cir. 2007)
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(“When two or more people occupy the space where the firearm is found, []

proximity to the firearm alone is insufficient to establish knowledge of and access

to that firearm.”). The government must demonstrate “some connection or nexus

between the defendant and the firearm,” Hishaw, 235 F.3d at 571, which leads to

“at least a plausible inference that the defendant had knowledge of and access to

the weapon or contraband[,]” United States v. Michel, 446 F.3d 1122, 1129 (10th

Cir. 2006). In sum, a conviction may not rest upon the “piling of inference[]

upon inference[]”; guilt must flow from “logical and probabilistic reasoning.” Id.

at 1128-29. 

A. Mr. Hooks’ Conviction

Mr. Hooks contends a reasonable juror would have had a reasonable doubt

as to whether the item seen by Officer Cash in the pickup was, in fact, the .38

revolver later discovered by Officer Cash. He notes that Officer Cash only

momentarily saw what he claimed to be a revolver, at dusk in an unlighted pickup

with dark tinted windows. Mr. Hooks points out that Officer Cash discovered the

.38 revolver over eighteen hours later in an area the officers had extensively

searched the night before and left unsecured in the interim. He further notes that

no physical evidence, such as a fingerprint, links the revolver to him. According

to Mr. Hooks, his conviction should therefore be reversed for insufficient

evidence.

We disagree. A reasonable jury could have found Mr. Hooks guilty beyond
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a reasonable doubt of possessing the .38 revolver. Several pieces of evidence

lead us to this conclusion. First, Officer Cash testified that the .38 revolver was

the firearm he saw wedged in the seat next to Mr. Hooks’ right leg. Second, Mr.

Hooks exhibited furtive behavior by fleeing the checkpoint and leading officers

on a high-speed chase. Third, the discovery of the .38 revolver in the same area

as the discarded t-shirt, when coupled with Mr. Hooks’ post-arrest admission that

he threw gun handles out of the pickup during the chase, is compelling evidence

against Mr. Hooks. Fourth, Mr. Hooks’ recorded statements to Mr. Ferrell

affirmatively indicate his knowledge of the revolver. He remarked: (1) the

officers “must have found them straps and shit we fixin to be gone,” and (2) “I

pray to god they ain’t gonna find that shit.” Mr. Hooks also made clear that he

believed he, as the driver, would face criminal charges when he stated, “I am

gonna get hit with all that shit they find.” While we recognize that Officer Cash

did not recover the .38 revolver until the day after the chase, Mr. Hooks’

statements provide “some connection or nexus” between him and the firearm. See

Hishaw, 235 F.3d at 571. The evidence logically and probabilistically shows that

Mr. Hooks had knowledge of and access to the .38 revolver. See Michel, 446

F.3d at 1129. We therefore conclude that there is evidence sufficient to support

Mr. Hooks’ conviction. 

B. Mr. Ferrell’s Conviction

Mr. Ferrell also contends the evidence is insufficient to support his
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conviction, asserting that the government failed to establish a nexus between him

and the Uzi. According to Mr. Ferrell, the evidence in this case “contra-indicates

guilt” and “amounts to mere presence in a car where a firearm was located.” 

Aplt. Br. at 11, 14. 

Having thoroughly reviewed the record, and mindful that there were two

additional passengers in the back seat of the pickup, we agree that the record does

not support Mr. Ferrell’s conviction. The government’s evidence consists of no

more than Mr. Ferrell’s presence inside the pickup occupied by four persons, his

recorded statements to Mr. Hooks, and the location where the Uzi was found by

the side of the road. Viewing the evidence in the light most favorable to the

government, we hold that no reasonable jury could have found Mr. Ferrell guilty

beyond a reasonable doubt. Even if we assume that Mr. Ferrell’s mere presence

in the pickup establishes proximity, see Jameson, 478 F.3d at 1209-10, the

government still has failed to show that Mr. Ferrell had knowledge of or

dominion or control over the Uzi, as opposed to the two passengers in the back of

the pickup.

We emphasize dominion or control, as opposed to “access to,” because of

our decision in United States v. Norman, 388 F.3d 1337 (10th Cir. 2004). In

Norman, we noted that a firearm does not need to be “readily accessible,” i.e.,

“visible and retrievable,” to a defendant at the time of his arrest for the defendant

to constructively possess it. Id. at 1341-42. The firearm may be locked in a
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glove compartment or even stored in the trunk of a car, assuming the defendant

had knowledge and control of it. See id. at 1342. In other words, a defendant’s

“access to” a firearm is not determined by his proximity to the firearm. Rather,

the “access to” element necessarily subsumes a subelement of “ownership,

dominion, or control.” Cf. United States v. Behanna, 814 F.2d 1318, 1320 (9th

Cir. 1987) (“When the government charges an individual with possession of a

weapon in a vehicle, we have squarely held that the government must do more

than show that the defendant was present as a passenger in the vehicle and within

reach of the weapon.”); United States v. Whitfield, 629 F.2d 136, 143 (D.C. Cir.

1980) (concluding that evidence of mere accessibility, without evidence of

dominion and control, is insufficient to support a finding of constructive

possession). 

Regarding Mr. Ferrell’s recorded statements, we conclude his comments to

Mr. Hooks do not evince knowledge of the Uzi’s presence in the vehicle. Mr.

Ferrell denied ownership of the Uzi upon inquiry by Officer Cash. He also asked

Mr. Hooks whether Mr. Hooks’ fingerprints were “on all that,” referring to the

Uzi the officer was holding outside the patrol car. Gov’t Ex. 3, Tr. of Video Clip

3. Mr. Hooks replied “I think I touched that home [sic].” Id. Mr. Hooks – not

Mr. Ferrell – commented that he thought the Uzi had no bullets in the chamber. 

See Gov’t Ex. 4, Tr. of Video Clip 4. Mr. Ferrell’s observation that the officer

did not know how to rack the Uzi is not evidence of knowledge of the weapon
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while it was in the vehicle. While the remark may indicate general knowledge of

how to operate a semiautomatic firearm, it does not establish that Mr. Ferrell

knew that the Uzi was in the pickup. 

Similarly, the area in which the Uzi was found does not show Mr. Ferrell’s

dominion or control over the firearm. Officer Cash discovered the Uzi in a ditch

on what was the passenger’s side of the highway, three-quarters to half of a mile

back from where the pickup had been stopped. The Uzi had no fingerprints on it,

and the record contains no officer testimony, physics analysis, or other evidence

identifying the window from which the firearm was thrown. The record merely

reveals that at least the front windows could be opened from the inside, and that

the passenger window in the rear where two other passengers were located had a

large hole in it. The officers admit, moreover, that they did not observe the Uzi

in the pickup or being thrown from the vehicle. 

At bottom, we can readily distinguish the dearth of circumstantial evidence

in this case from the relative abundance of such evidence in our prior decisions

upholding possession convictions. See, e.g., Jameson, 478 F.3d at 1210

(upholding possession conviction where government’s evidence included

defendant’s “furtive movements, his inferred physical contact with the pistol (his

foot was on top of it), and the pistol’s being in plain view and easily retrievable

to a passenger in [the defendant]’s seat”) (internal citation omitted); Michel, 446

F.3d at 1128-29 (upholding possession conviction where defendant, the front-seat
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passenger in the car in which the gun was found, made repeated movements

toward the back seat area where the gun was located); Norman, 388 F.3d at 1341

(finding sufficient evidence of knowing possession where defendant, the owner

and driver of the vehicle, exhibited anxious and bizarre behavior throughout his

encounter with the police, had a key to the locked glove compartment in which

the gun was found, may have had exclusive possession of the vehicle the evening

before his arrest, and transported a passenger whose behavior and statements

indicated no knowledge of the firearm); United States v. Gorman, 312 F.3d 1159,

1164 (10th Cir. 2002) (holding the evidence established sufficient nexus between

defendant and the firearm where defendant owned and worked on the vehicle in

which the firearm was found, and the firearm was partially hidden on defendant’s

side of the vehicle and retrievable from defendant’s driver-side seat); United

States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999) (upholding possession

conviction where defendant (i) engaged in furtive movements while being

followed by the police, (ii) had been seated in the rear of the van where the gun

was found, and (iii) carried on his person bullets linking him to the gun). Here,

the government’s only real link to Mr. Ferrell is his “prese[nce] inside a car with

three others where a [different] gun was [arguably thrown out].” Jameson, 478

F.3d at 1210. The evidence here, without more, does not support a finding of

guilt beyond a reasonable doubt. 

 We conclude that Mr. Ferrell’s conviction is not supported by the evidence
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and must be reversed. In light of this conclusion, we need not address his other

grounds for reversal of his conviction or sentence.

III.

Jury Instructions

Mr. Hooks argues that he was prejudiced by the district court’s failure to

give a limiting instruction regarding reliance on the video clips’ transcribed

captions. According to Mr. Hooks, the jurors might have relied on the written

statements more than what they individually heard and understood. He contends

the district court’s instructions did not properly guide the jury because the

instructions failed to advise on this crucial aspect of the government’s case.

We review jury instructions de novo, in the context of the entire trial and as

a whole, “to determine if they accurately state the governing law and provide the

jury with an accurate understanding of the relevant legal standards and factual

issues.” United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir. 2008) (internal

quotation marks omitted). We review for abuse of discretion a district court’s

decision to give or to decline a particular requested instruction. Id. We reverse a

conviction “if we have substantial doubt that the jury was fairly guided.” United

States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006) (internal quotation marks

omitted). However, “[u]nopposed instructions are reviewed only for plain error.” 

United States v. Nacchio, 519 F.3d 1140, 1159 (10th Cir. 2008), reh’g granted,

535 F.3d 1165 (10th Cir. 2008).
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We note at the outset that Mr. Hooks stipulated to the accuracy of the

admitted transcripts before trial and did not seek to proffer his own version of

them. Because Mr. Hooks did not request a “best evidence” limiting instruction

or otherwise object to the instructions, we review the district court’s instructions

for plain error. “Plain error exists only where (1) there was error, (2) that is

plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Bedford, 536 F.3d at 1153. 

In other words, the defendant “must establish not only the existence of an error

that is clear or obvious under current law, but also that such error affects his

substantial rights and seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Schene, 543 F.3d 627, 638 (10th Cir.

2008).

Mr. Hooks first must show plain error. Tenth Circuit law is well-settled

that a district court has discretion in admitting the transcription of an audio

recording. United States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991); United

States v. Devous, 764 F.2d 1349, 1353 (10th Cir. 1985). In the absence of a

stipulation by the parties, the court should determine the accuracy of transcripts. 

See Devous, 764 F.2d at 1355. If transcripts are admitted and discrepancies or

errors exist, the court may give a “cautionary instruction to the jury, telling [it]

that the tapes [a]re the true evidence and that the transcripts [a]re to be used only

for clarification.” Davis, 929 F.2d at 559; see also United States v. Lucero, 601
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F.2d 1147, 1149 (10th Cir.1979) (noting district court gave “vigorous cautionary

instructions” in response to defendant’s challenge to the accuracy of the

transcripts). While limiting instructions are advisable, we have never held that a

district court must give such an instruction in every case in which transcripts of

audio recordings are admitted. 

We are not convinced that Mr. Hooks has shown plain error. No prejudicial

danger could possibly arise from the absence of a limiting instruction if Mr.

Hooks agreed that no discrepancies or errors existed between the actual audio and

the transcribed captions. The jury could safely rely on the captions, for the

captions were no more than a typewritten facsimile of the audio itself. Mr. Hooks

cannot claim error simply because the jury could see, as well as hear, his

undisputed statements. Because Mr. Hooks’ stipulation to the accuracy of the

transcripts offset the need for a cautionary instruction, see Devous, 764 F.2d at

1355, his argument necessarily fails.

IV.

Application of the Enhancement Statute

Mr. Hooks argues that the district court erred by applying the U.S.S.G. §

2K2.1(b)(6) sentencing enhancement when nothing in the record showed he

possessed the .38 revolver in connection with another felony offense. Mr. Hooks

points out that the district court based its finding on facts – i.e., the yellow

envelope containing ecstacy pills found near the Uzi – set forth in the PSR but not
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presented at the suppression hearing or at trial. According to Mr. Hooks, the

record does not include unproven facts merely mentioned in a PSR and does not

support an inference that he possessed the .38 revolver in connection with a drug

offense.

The government, by contrast, contends that the record does support the

district court’s factual finding regarding the four-point enhancement. It asserts

that Mr. Hooks’ recorded statements about accountability for “all that shit they

find” and the impending “fat ass loss” clearly references “the economic loss” Mr.

Hooks faced as a result of the hasty disposal of the “illegal product along the side

of the road.” Aple. Br. at 12. The government also points out that Mr. Hooks did

not object to the accuracy or inclusion of the facts in the PSR, which the district

court adopted as the basis for the enhancement. Thus, according to the

government, the district court did not err in relying on this information.

We review the factual findings underlying a district court’s sentencing

determination for clear error and review the underlying legal conclusions de novo. 

United States v. Swanson, 253 F.3d 1220, 1222 (10th Cir. 2001). We give “due

deference to the district court’s application of the [Sentencing] Guidelines to the

facts.” United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008). Factual

findings must be supported by a preponderance of the evidence. United States v.

Munoz-Tello, 531 F.3d 1174, 1181 n.12 (10th Cir. 2008). Clear error exists if a

factual finding “is wholly without factual support in the record, or after reviewing
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the evidence, we are definitively and firmly convinced that a mistake has been

made.” United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir. 2008); see United

States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir. 2007) (“[A] finding

must be more than possibly or even probably wrong; the error must be pellucid to

any objective observer.”).

We are not persuaded by Mr. Hooks’ argument that there was sentencing

error. “With few limitations, a court has almost unlimited discretion in

determining what information it will hear and rely upon in imposing [a] sentence”

under the advisory sentencing guidelines. United States v. Graves, 785 F.2d 870,

872 (10th Cir. 1986); see United States v. Todd, 515 F.3d 1128, 1137 (10th Cir.

2008) (“18 U.S.C. § 3661 specifies that no limitation should be placed on the

information concerning the background, character, and conduct of a defendant

that a district court may consider in sentencing . . . .” (internal quotation marks

omitted)). A district court “may accept any undisputed portion of the presentence

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). While we have noted

that “[a] district court may not simply adopt the PSR as its findings when the

defendant disputes the report[,]” United States v. Rodriguez-Felix, 450 F.3d 1117,

1131 (10th Cir. 2006), we have never held that a factually undisputed PSR can

not form the basis for factual findings. We see no reason why the record should

not include “the uncontroverted facts in [a] Presentence Report.” United States v.

Melendez-Garcia, 28 F.3d 1046, 1056 (10th Cir. 1994). If a defendant fails to
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specifically object to a fact in the PSR, the fact is deemed admitted by the

defendant and the government need not produce additional evidence in support of

the admitted fact. United States v. White, 447 F.3d 1029, 1032 (8th Cir. 2006).

Here, Mr. Hooks did not object to the accuracy or inclusion of the facts in

the PSR. He never contended the envelope contained something other than

ecstacy, and he never proffered mitigating exculpatory evidence. Mr. Hooks

instead contended that the requested enhancement required proof beyond a

reasonable doubt that he possessed the firearm in connection with controlled

dangerous substances. However, an objection based on the purported failure to

satisfy a specified standard of proof is wholly distinguishable from an objection

based on the alleged factual inaccuracy of a PSR. As long as Mr. Hooks did not

contest the truthfulness of the PSR’s description of the envelope’s contents, the

PSR remained undisputed and thus satisfied the preponderance of the evidence

standard with respect to the existence of the drugs.

The record also support’s the district court’s finding that Mr. Hooks

possessed the .38 revolver in connection with the felony possession of drugs for

sale. Mr. Hooks’ recorded conversation about his potential legal and financial

accountability for the drugs as well as the revolver the officers might find

provides sufficient factual support for the four-point enhancement. We therefore

conclude that the district court did not err. 

For the foregoing reasons, we REVERSE Mr. Ferrell’s conviction, and
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AFFIRM Mr. Hooks’ conviction and sentencing.