UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LERAY EUGENE RICHARDS, a/k/a Le'Ray Eugene Richards, a/k/a Cory Tremell Brown, Defendant - Appellant. Nos. 18-6223 and 18-6224 (D.C. Nos. 5:18-CR-00097-HE-1 and 5:18-CR-00098-HE-1) (W.D. Oklahoma)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , McHUGH , and CARSON , Circuit Judges.

________________ _________________ On July 3, 2018, LeRay Eugene Richar ds pleaded guilty to three counts of being a felon in possession of a firearm and/or ammunition in violation of 18 U.S.C. § 922(g)(1). Mr. Richards’s Presentence In vestigation Report (the “PSR”) computed an advisory sentencing range of 77–96 mont hs based on a total offense level of 21,

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 4, 2019
Elisabeth A. Shumaker Clerk of Court2 inclusive of a four-level enhancement fo r Mr. Richards’s use or possession of a firearm in connection with another felony offense. The district court held a sentenci ng hearing, at which the government presented evidence on the factual basis for the four-level increase. After hearing testimony and other evidence from the pa rties, the district court found by a preponderance of the evidence and over Mr. Richards’s objection, that he used or possessed a firearm in connection with an assault or domestic violence felony offense. As a result, the dist rict court adopted the PSR a nd sentenced Mr. Richards to a guidelines-range, 94-month te rm of imprisonment. On appeal, Mr. Richards asserts that the district court’s factual findings supporting the four-level enhancement were clearly erroneous. He further argues that his 94-month, within-guidelines sentence is substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we reject both contentions and affirm his

sentence. I. BACKGROUND A. The Indictments On April 17, 2018, a grand jury re turned two separate indictments 1 collectively charging Mr. Richards with three viol ations of 18 U.S.C. § 922(g)(1). The indictments emanated from two separate incidents, which we summarize below.

1 The two indictments initiated separa te criminal cases, but the Western District of Oklahoma’s Proba tion and Pretrial Services office prepared a single PSR for Mr. Richards, and the district court convened a single sentencing hearing. The separate appeals of those se ntences have been consolid ated before this court.3 The September 28, 2016, Incident On September 28, 2016, Oklahoma City police responded to a report that Mr. Richards had broken into the home of Ki eaira Perry, his ex-gir lfriend, and was in possession of a firearm. Mr. Richards wa s observed exiting the home as officers arrived, only to reenter the home for severa l seconds before reemerging, at which point he was arrested. During a search of Mr. Richards incident to arrest, police discovered fifty rounds of ammunition for a .22 long rifle, as well as a taser. Ms. Perry permitted police to search her home, which led to the discovery of Mr. Richards’s .22 long rifle calib er pistol under Ms . Perry’s couch. The firearm was both magazine and chamber loaded, with the safety off and the hammer in the “cocked” position. Ms. Perry’s PlaySta tion gaming console was missing and was later discovered in the car Mr. Richards had driven to Ms. Perry’s home. The police discovered a little more than half a gram of crack co caine on Mr. Richards’s person during a further search upon admi ssion to the detention facility. The October 27, 2017, Incident On October 27, 2017, police responded to reports of a fight involving a firearm at an apartment complex in Midwest City, Oklahoma. The complex’s s ecurity guards told police they had asked Mr. Richards for identification as he entered the apartment complex. Mr. Richards failed to produce identification, a nd instead tried to remove a

Following the parties’ cita tion convention, all cites to the sentencing transcript (“Tr.”) in this order refer to the transcript found in Volume III in the respective records on appeal.4 firearm—again magazine and chamber loaded —from his clothing, at which point the security guards wrestled hi m to the ground and removed the firearm from his reach. B. The Sentencing Hearing Because Mr. Richards raised a timely objection to the factual basis for his four-level sentencing enhancement, the di strict court receiv ed evidence at the sentencing hearing on the predicate fel ony conduct. The govern ment called Sergeant Jacob Papera, the police o fficer who interviewed Ms . Perry and her children immediately after Mr. Richards was arrest ed on September 28, 2016. Sergeant Papera testified that Ms. Perry related the fo llowing facts pertaining to the sentencing enhancement: (1) she awoke to a loud ba nging sound to find her ex-boyfriend, Mr. Richards, in her home; (2) the two be gan arguing, and Mr. Richards pointed a “small, black, semi-automatic handgun” at her (Tr. at 8); and (3) her children observed Mr. Richards point the firearm at her. Sergeant Papera further testified th at he interviewed Ms. Perry’s two children—ages five and seven—one at a ti me and outside Ms. Perry’s presence. He testified that the child ren told him they had been roused by the same loud sounds as their mother, and when they left their bedroom to invest igate, they “saw their mother arguing with Mr. Richards and him poi nting the gun at her.” Tr. at 9. In rebuttal, Mr. Richards called Rich ard Reyna, a criminal investigator employed by the Federal Public Defender’s Office. Mr. Reyna in terviewed Ms. Perry about the incident at the direction of Mr. Ri chards’s attorney. Mr. Reyna testified that Ms. Perry told him, contrary to Sergeant Papera’s testimony, that her children had not5 witnessed Mr. Richards point the firearm at her. But Mr. Reyna did not testify as to the source of Ms. Perry’s belief that he r children had not witn essed this event. Mr. Reyna further admitted he did not inte rview Ms. Perry’s children and therefore could not speak to what they had seen fro m their “point of vi ew.” Tr. at 18–19. Following Mr. Reyna’s testimony, Mr. Ri chards introduced furniture rental agreements he executed in March of 2016 that reported his address to be the same as Ms. Perry’s. After the parties concluded their pres entation of evidence, the government urged the district court to find that Mr. Richards had committed burglary, relying on the fact that Ms. Perry’s PlayStation was found in Mr. Richards’s car. The district court declined to find that Mr. Richar ds had burglarized Ms. Perry’s home, explaining that “[t]he evid ence suggests that the defe ndant had stuff here and obviously a past relationship with the vict im, and so I’m not persuaded that this constitutes technically a burglary, which, as counsel know, is a fairly specific sort of breaking-and-entering circ umstance.” Tr. at 23. The district court instead concluded that “the government . . . established by a preponderance of the evidence that th e gun was used in connection with a— essentially, an assault or dom estic violence situation.” Tr . at 23. Having made that finding, the district court adopted the PSR’s computation of a to tal offense level of 21, which, when combined with Mr. Rich ards’s criminal hist ory category of VI, produced an advisory Guidelines sentenci ng range of 77–96 mont hs of imprisonment.6 After weighing the statutory fa ctors, the district court se ntenced Mr. Richards to a 94-month term of impr isonment in each case, to run concurrently. II. ANALYSIS A. The § 2K2.1(b)(6)(B) Offense Level Enhancement Under § 2K2.1(b)(6)(B) of the Un ited States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”), a defendant’s total offense level is increased by four levels if he “used or possessed any firear m or ammunition in connection with another felony offense.” Application note 14 to U. S.S.G. § 2K2.1 clarifies that this sentencing enhancement applies “if the firear m or ammunition facil itated . . . another felony offense.” U.S.S.G. § 2K2.1, cmt. n.14(A). We have explained that § 2K2.1(b )(6)(B) “contains three elements: the defendant must (1) use or po ssess a firearm (2) in connection with (3) another felony offense.” United States v. Marrufo , 661 F.3d 1204, 1207 (10th Cir. 2011). As with all sentencing enhancements, the government bear s the burden of proving these elements by a preponderance of the evidence. See United States v. Orr , 567 F.3d 610, 614 (10th Cir. 2009). Mr. Richards disputes only the third el ement of the enhancement, contending the district court erred by fi nding he committed a nother felony offense. 2

2 At sentencing, neither the district cour t nor the parties pointed to the precise statute that makes Mr. Richards’s conduc t a felony. On appeal, the government asserts that Mr. Richards violated Okla homa’s domestic assau lt with a dangerous weapon statute, Okla. Stat. tit. 21, § 644(D)(1), with wh ich state authorities charged him before all state charges were dism issed in favor of the instant federal indictments. Under that statute:7 “We review the factual findings underl ying a district court’s sentencing determination for clear error and re view the underlying legal conclusions de novo .” Marrufo , 661 F.3d at 1206 (quotation marks omitted). Because Mr. Richards challenges the district court’ s factual findings—arguing that “the district court erred in relying on impeached hearsay testimony” —he can prevail on appeal only if he establishes that the distri ct court clearly erred. See Opening Br. at 17. “Under clear error review, we view the evidence and inferences drawn therefrom in the light most favorable to the district cour t’s determination.” United
States v. Porter , 928 F.3d 947, 962 ( 10th Cir. 2019) (inter nal quotation marks omitted). To be clearly erroneous, “a finding must be more than possibly or even probably wrong; the error must be pe llucid to any objective observer.” United States v. Cardenas-Alatorre , 485 F.3d 1111, 1119 (10th Cir. 2007) (quotation marks omitted). “[W]e must be convinced that the sentencing court’ s finding is simply not plausible or permissible in li ght of the entire record on appeal, remembering that we are not free to substitute our judgmen t for that of the district judge.” Porter , 928 F.3d at 962–63 (quotation marks omitted). “And this deferential sta ndard of review applies
Any person who, with intent to do bod ily harm and without justifiable or excusable cause, commits any assault . . . upon . . . a person who formerly lived in the same household as the defendant . . . with any sharp or dangerous weapon . . . is guilty of dom estic assault . . . with a dangerous weapon which shall be a felony. Okla. Stat. tit. 21, § 644(D)(1). Mr. Richards does not dispute that if the district court permissibly found that he pointed the firearm at Ms. Perry, he is properly found to have committed this offense for purposes of the enhancement.8 equally regardless of whether the distri ct court’s factual findings are based on credibility determinations or on documentary evidence.” United States v. Hargrove , 911 F.3d 1306, 1325 (10th Cir. 2019) (internal quot ation marks omitted). Mr. Richards’s sole argument on appeal is that the im peachment evidence provided by Mr. Reyna and through the furniture rental agreements rendered impermissible the district court’s reliance on Sergeant Papera’s account of hearsay 3
statements attributed to Ms. Perry and her children. 1. Mr. Reyna’s Testimony As described above, Mr. Reyna testified that Ms. Perry told him her children had not observed Mr. Richards point the firearm at her. Because Sergeant Papera testified that Ms. Perry had related the oppos ite to him, a factfi nder could permissibly conclude that Mr. Reyna’s testimony (1) cal ls into question Ms . Perry’s credibility generally, and/or (2) creates an evidentiary conflict as to whether or not the children observed the event. The district court u ltimately resolved both matters against Mr. Richards, explaining that “while the ev idence as to the hear say statement of the

3 “[H]earsay statements may be consider ed at sentencing if they bear some minimal indicia of reliability.” United States v. Ruby , 706 F.3d 1221, 1229 (10th Cir. 2013) (quotation marks omitted). Mr. Rich ards does not argue that the hearsay statements supporting the enhancement did not bear minimal indicia of reliability, and we have affirmed the application of this same sentencing enhancement on substantially similar h earsay evidence as that supporting Mr. Richards’s. See United States v. Farnsworth , 92 F.3d 1001, 1010 (10th Cir. 1996) (deeming reliable a hearsay statement made by victim to poli ce that defendant threatened her with a firearm where statement was made contemporaneously with the incident and the defendant had an opportunity to cross- examine the officer who recounted the hearsay).9 victim is certainly less than ironclad, it’s not so noncredible as to cause me to discount it entirely.” Tr. at 24. To be sure, Mr. Richards has provided evidence from which the district court could have discounted Ms. Perry’s statem ent to Sergeant Papera and generally questioned her credibility. But nothing in th e evidence would require the district court to do so. As a result, Mr. Richards has fa iled to establish that the district court’s decision was clearly erroneous. Absent su ch a showing, we will not disturb a factfinder’s evidentiary and credibility determinations. See United States v. A.S. , 939 F.3d 1063, 1081 (10th Cir. 2019) (“Wher e conflicting evidence exists, we do not question the [factfinder’s] conclusions regard ing the credibility of witnesses or the relative weight of evidence.” (quoting United States v. Cope , 676 F.3d 1219, 1255 (10th Cir. 2012) (alte ration in original)); United States v. Sweargin , 935 F.3d 1116, 1123 (10th Cir. 2019) (“We have long held that the credibility of a witness at sentencing is for the sentencing court, who is the trier of fact, to analyze.” (internal quotation marks omitted)). Because Mr. Rich ards has adduced nothing that renders the district court’s resoluti on of these matters clearly e rroneous, we will not disturb its findings on appeal. As the district court noted, even if Mr. Richards is correct that the children did not witness Mr. Richards pointing the fi rearm at Ms. Perry, that fact does not preclude a finding that the assa ult occurred. Ms. Perry did not tell Mr. Reyna that Mr. Richards did not point a gun at her; she stated only th at she believed her children did not observe the incident. Thus, the dist rict court was free to credit Ms. Perry’s10 unrebutted statement to police that Mr . Richards pointed the weapon at her— committing a domestic assault. Nor did Mr. Reyna’s te stimony impeach the credibility of Ms. Perry’s children, each of whom se parately told Sergeant Papera—outside Ms. Perry’s presence—that they observed Mr. Richards point the firearm at their mother. Importantly, there was no evid ence received about the sour ce of Ms. Perry’s belief that her children had not witn essed the incident (and ther efore nothing to establish a foundation for her statement to that effect). And Mr. Reyna admitted he did not speak to the children. Thus, the district court woul d have acted well with in its discretion if it credited the children’s c ontemporaneous statements to Sergeant Papera about matters they personally perceived. 2. Furniture Rental Agreements Evidence Next, Mr. Richards points to the furnitu re rental agreements that list his address as Ms. Perry’s in Ma rch of 2016. Mr. Richards in troduced the agreements to prove he was still living with Ms. Perry in September of 2016, and thereby rebut the government’s assertion th at he had burglarized her home. Having succeeded in thwarting a burglary finding below, Mr. Ri chards argues on appeal that because Ms. Perry told police he moved out of he r home in February of 2016, the March 2016 furniture rental agreements “alone demonstr ate[] the unreliable na ture of Ms. Perry’s hearsay statements.” Openin g Br. at 16. But the record is devoid of evidence suggesting, and Mr. Richards never affirmatively states , that he was residing in Ms. Perry’s home at the time of the September 2016 incident.11 Thus, the most damaging inference fro m the rental agreements is that Ms. Perry’s recollection ab out when Mr. Richards moved out of her home was inaccurate. And even if we as sume she intentionally misrep resented that information, the district court remained fre e to credit her statement th at Mr. Richards pointed the firearm at her. Stated diffe rently, the impeachment eviden ce is not so powerful that the district court’s decision to credit othe r of Ms. Perry’s statements was clearly erroneous. At minimum, we cannot say the error would be “pellucid to any objective observer.” See Cardenas-Alatorre , 485 F.3d at 1119 (quotation marks omitted). In sum, Mr. Richards has not demonstrat ed clear error in the district court’s factfinding. As a result, his four-level e nhancement under § 2K2.1(b)(6)(B) must be sustained.
B. Mr. Richards’s Substantive Reasonableness Challenge “In considering a substantive-reasonablen ess challenge, we presume that the sentence was reasonable if it fell w ithin the applicable guideline range.” United States v. Ibanez , 893 F.3d 1218, 1219 (10th Cir. 2018). “This is a deferential standard that either the defendant or the govern ment may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated in [18 U.S.C.] § 3553(a).” United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). “[I]mportantly, both the Supreme Court and th is court have made clear that it is not the job of an appellate court to review de novo the balance struck by a district court among the factors set out in § 3553(a).” United States v. Sells , 541 F.3d 1227, 1239 (10th Cir. 2008); see United States v. Vasquez-Alcarez , 647 F.3d 973, 978 (10th Cir.12 2011) (“Our role is not to second guess the di strict court’s treatm ent of the § 3553(a) factors.”). “We review the substantive reasonabl eness of a sentence for abuse of discretion.” United States v. Durham , 902 F.3d 1180, 1236 ( 10th Cir. 2018) (internal quotation marks omitted). We will not find th is standard met “unl ess the sentence is arbitrary, capricious, whimsica l, or manifestly unreasonable.” Id. (internal quotation marks omitted). Thus, “we will defer to th e district court’s j udgment so long as it falls within the realm of . . . rationally available choices.” Id. (alteration in original) (quotation marks omitted). Because Mr. Richards’s 94-month senten ce is within his properly computed Guidelines range of 77–96 months, he bear s the burden of rebutting the presumption that his sentence is substantively reasonabl e. In attempting to carry that burden, Mr. Richards submits two arguments. First, he suggests that “[t]he district court did not properly allocate weight to [his] childhood, employment history, mental health issues, self -reporting to address those issues, support from the community, and role as a fa ther to his children.” Opening Br. at 21 With the exception of Mr. Richards’s employment history, the district court explicitly we ighed each of these matters. Indeed, in analyzing the § 3553(a) factors, the distri ct court considered: (1) Mr . Richards’s “particularly difficult childhood in terms of the circumstances with both his mother and his father” (Tr. at 46); (2) Mr. Richards’s “mental he alth-related issues” (T r. at 45); (3) that Mr. Richards self-reported to a mental he alth facility for tr eatment without “being13 forced to do it by the criminal justice system or anybody else” (Tr. at 46); (4) the letters of support from individuals “from hi s church and others who’ve talked in terms of his potential” (Tr. at 45); and (5) that Mr. Richards “has been very much involved in the lives of his kids” 4 (Tr. at 46–47). Because he cannot argue that the district court failed to c onsider these matters, Mr. Ri chards argues the court should have accorded them greater weight and in turn should have imposed a lesser sentence. But Mr. Richards ha s not established that the district court abused its discretion, and absent that s howing, we will “not . . . s econd guess the district court’s treatment of the § 3553(a) factors.” Vasquez-Alcarez , 647 F.3d at 978. To the extent Mr. Richards assigns erro r to the district court’s failure to explicitly rely on his employment history, we reject that argument. A district court “need not rely on every single factor—no algor ithm exists that inst ructs the district judge how to combine the factors or what weight to put on each one.” United States
v. Barnes , 890 F.3d 910, 91 6 (10th Cir. 2018). And at least in the four years preceding his sentencing (as far back as the PSR goes), Mr. Richards did not maintain anything approachi ng steady employment. In no y ear did he earn more than $7,280, and he was terminated for cause from three jobs between 2016 and 2018.

4 The district court accord ed less weight to Mr. Ri chards’s familial support, remarking that “that activity [ i.e. , his involvement in the lives of his children], laudable as it is, has undoubtedly occurred during much of the same period of time this course of violent cond uct and so on that I’ve talked about has also continued.” Tr. at 47. The district court continued: “S o much as I hate to impose a sentence that necessarily removes the defe ndant from their family a nd from their kids for an extended period of time, it does seem to me that a meaningful se ntence is appropriate here.” Tr. at 47.14 Thus, to the extent Mr. Richards asserts he should have receive d a lesser sentence because each additional month incarcerated is another month preventing his return to stable employment, there is scan t evidence for that proposition. Second, Mr. Richards argues that the dist rict court relied heavily on its finding that he pointed the firearm at Ms. Perry. Reasserting the arguments he leveled against that factual finding, Mr. Richards contends that the district court’s reliance on a clearly erroneous fact in weighing the § 35 53(a) factors was an abuse of discretion. But if we agreed with Mr. Richards that the district court’ s factual finding was unsupported, he would be entitled to a remand for resentencing under a lower Guidelines range, obviating any consid eration of whether his sentence was substantively reasonable. See United States v. Fennell , 65 F.3d 812, 813–14 (10th Cir. 1995) (remanding for resentencing after finding sentencing enhancement factually unsupported). As discussed above, however, th e district court did not clearly err in finding that Mr. Richards us ed a firearm in conn ection with a domestic assault. Next, Mr. Richards argues that even if the district court’ s factual finding is sustained, “his sentence is substantivel y unreasonable because the district court allocated undue weight upon th is individual factor.” Open ing Br. at 21 As indicated above, we do not reweigh the § 3553(a) fact ors and substitute our judgment for that of the sentencing court. And although the district court relied on its finding that Mr. Richards pointed a load ed, cocked gun at Ms. Perry —“[a]nd because of that, it puts this in a more serious circumstance than would be th e case if this was just a15 matter of somebody passively possessing a w eapon” (Tr. at 43)—the court appears to have been more troubled that this inci dent represented ye t another entry in Mr. Richards’s “history of violence.” Tr. at 47. For example, the district court remarked that its review of Mr. Richards’s criminal hi story revealed that “in a significant number of [the o ffenses] the indications are th at they involved some kind of violence in the commission of them.” 5 Tr. at 44. The district court further noted that the October 2017 incident at the ap artment complex was “also obviously not a situation of passive possession” of a firearm. Tr. at 43. Far from abusing its discreti on, our review of the reco rd suggests the district court conducted a thorough a nd thoughtful § 3553(a) analys is. The district court’s reasoning demonstrates that it carefully reviewed all of the materials submitted in connection with the relevant factors, and st ruck a permissible balance in arriving at a 94-month, within-Guidelines sentence. III. CONCLUSION Mr. Richards has not demonstrated any clearly erroneous factual determinations underlying his sentencing e nhancement, and he has not rebutted the presumption that his within -Guidelines sentence is subs tantively reasonable. As a result, the district court is AFFIRMED

. Entered for the Court Carolyn B. McHugh Circuit Judge

5 Along with several other violent o ffenses, the PSR reports three prior incidents of domestic violence.