* The case is unanimously ordered submitted without oral argument pursuant to Fed. R.

App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 c ited under the terms and conditions of 10th Cir. R. 36.3.

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

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL CLARK COWAN, also known as Larry Earl Hawkins, Defendant - Appellant. No. 96-2055 (D.C. No. CR-95-200-JC) (District of New Mexico)

ORDER AND JUDGMENT *

Before SEYMOUR , KELLY and LUCERO , Circuit Judges.

Defendant-appellant Michael Clark Cowan was indicte d by a federal grand jury in the District of New Mexico in April, 1995. The first count of the twocount indictment charged Mr. Cowan with being a fel on in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The second count alleged that Mr. Cowan unlawfully possessed an unre gistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. The matter proce eded to trial, but the district court declared a mistrial when the jury was unable to reach a unanimous verdict.- 2 -

Shortly thereafter, pursuant to a plea agreement, appellant pled guilty to being a felon in possession of a firearm. Over Mr. Cowan’s objections, the district court adopted the factual findings and rec ommendations of the probation department in toto . Mr. Cowan was sentenced to seventy months impris onment, to be followed by three years of supervised release . This appeal ensued. I. Jurisdiction Regarding Downward Departure Appellant contends that the district court erred in declining to grant his request for downward departure. Our jurisdiction t o review such a claim is somewhat limited. We may do so only when “the district court refused to depart bec ause it erroneously interpreted the Guidelines as depriving it of the p ower to depart based on the proffered circumstances . . . . Howev er, if the district court interpreted the Guidelines as authorizing dep arture, but nonetheless chose not to depart, then we would have no jurisdiction to review this discretionary decision.” United States v. Rowen , 73 F.3d 1061, 1063 (10th Cir. 1996) (quoting Unit ed
States v. Barrera-Barron , 996 F.2d 244, 245 (10th Cir.), cert. denied , 510 U.S. 937 (1993)). In this case, after hearing the arguments of counse l, the district court stated: “I adopt the recommendation of the probatio n department. I find that you are not entitled to any reduction or to any credits . I didn’t believe you at the trial and I don’t believe you now.” We are satisfied that these statements, when read in their proper context, evidence the district court’s recognition of its authority to- 3 -

depart downward, and decision not to do so. See Rowen , 73 F.3d at 1063 (sentencing court assumed to recognize its discreti on to depart downward unless judge unambiguously states otherwise). Accordingly , we have no jurisdiction over Mr. Cowan’s claim on this issue. II. Enhancement Under § 2K2.1(b)(5) Appellant next contends that the district court mis applied the sentencing guidelines when it enhanced his sentence for “us[in g] or possess[ing] a firearm or ammunition in connection with another felony offens e.” See USSG § 2K2.1(b)(5). We know from his guilty plea that Mr. Cowan used or possessed a firearm. Consequently, the question becomes whethe r or not he did so “in connection with another felony offense.” Sentencing determinations of relevant conduct and o ffense characteristics must be supported by a preponderance of the evidenc e. United States v. GomezArrellano , 5 F.3d 464, 466 (10th Cir. 1993). We review the district court’s factual findings under the clearly erroneous standa rd. 18 U.S.C. § 3742(e). We will not reverse “unless the court’s finding was wi thout factual support in the record, or if after reviewing all the evidence we a re left with the definite and firm conviction that a mistake has been made.” United S tates v. Beaulieu , 893 F.2d 1177, 1182 (10th Cir.), cert. denied , 497 U.S. 1038 (1990). This court will give “due deference to the district court’s application of the Sentencing Guidelines to- 4 -

the facts . . . but [will] review legal questions d e novo.” United States v. Sanders , 990 F.2d 582, 583 (10th Cir.), cert. denied , 510 U.S. 878 (1993). In order for a § 2K2.1(b)(5) enhancement to be prop er, the firearm must have been used or possessed “in connection with” an other felony offense. See Gomez-Arrellano , 5 F.3d 464; Sanders , 990 F.2d 582. In this case, it is undisputed that appellant’s use or possession of th e firearm physically and temporally coincided with the conduct alleged to be “another felony offense.” Restated, the discharge of the sawed-off shotgun fo rms an integral part of the alleged aggravated assault. We therefore conclude that the connexity or nexus element of § 2K2.1(b)(5) is satisfied in this case. The sole remaining question is whether Mr. Cowan fi red the sawed-off shotgun in connection with “another felony offense. ” In this context, the Guidelines define the term “felony offense” as “any offense (federal, state or local) punishable by imprisonment for a term exceed ing one year, whether or not a criminal charge was brought, or conviction obtain ed .” USSG § 2K2.1, comment. (n.7) (emphasis supplied); see Stinson v. United States , 508 U.S. 36, 38 (1993) (holding that commentary in the Guidelines M anual interpreting or explaining a guideline “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plai nly erroneous reading of, that guideline.”).- 5 -

The district court adopted the factual findings and Guideline applications set forth in the probation department’s presentence report. That report concluded that a § 2K2.1(b)(5) enhancement was appropriate inthis case because “[t]he defendant committed another felony offense, to wit: Aggravated Assault, by shooting [the victim] with the shotgun and injuring him.” We are mindful that “[c]onclusions in the pre-sente nce report unsupported by facts do not constitute a preponderance of the e vidence.” United States v. Pantelakis , 58 F.3d 567, 568 (10th Cir. 1995). In this case, however, we conclude that a preponderance of the evidence supports the d istrict court’s finding that Mr. Cowan’s conduct during this incident amounted to ag gravated assault, and therefore “another felony offense.” Under New Mexico law, the crime of aggravated assau lt is a fourth degree felony, and consists of “unlawfully assaulting or s triking at another with a deadly weapon.” N.M. Stat. Ann. § 30-3-2. The presentenc e report recounted the testimony of undercover officers who observed two males involved in a physical altercati on. [The officers] observed one of the male subjects, later identified as [the victim], turn and run . . . . The officers then observed the other p erson identified as Michael Cowan level a sawed off shotgun in the direction of [the victim] as he was fleeing. The officer then observed and heard the s hotgun discharge. [The victim] fell face down catching himself with his ha nds. Cowan then turned and began to walk in the direction of the officers. Officers further observed [the victim] get back on his feet and bega n jumping around. [The victim] had been shot in the leg.- 6 -

Presentence Report at 3. By any objective standard, purposefully firing a sawed-off shotgun in the direction of a fleeing person constitutes “unlawful ly assaulting or striking at another with a deadly weapon.” Appellant opposes s uch a conclusion by maintaining that his actions were in self-defense. The transcript of the sentencing hearing reveals th at the district court rejected Mr. Cowan’s version of the incident, and t herefore his self-defense claims. The court made adverse credibility determi nations and, over defense counsel’s objections, adopted the presentence report and its recommendations in full. Trial courts receive a great deal of deferen ce in this context, and we see no reason why this case should be an exception. See Anderson v. City of Bessemer City , 470 U.S. 564, 573-79 (1985); Willner v. University of Kansas , 848 F.2d 1023, 1030 (10th Cir. 1988), cert. denied , 488 U.S. 1031 (1989) (“The Supreme Court has urged deference to the district court’s f indings whether those findings are based on credibility determinations, documentary evidence, or both.”). We note that based upon our reading of the record, we would affirm the district court’s conclusions even if we were to app ly the more onerous de novo standard of review. Accordingly, we need not addre ss whether the district court’s rejection of appellant’s self-defense claim is revi ewed as a factual finding or, rather, whether it is reviewed as primarily involvi ng an application of law.- 7 -

As a final matter, we address the victim’s post-inc ident statement to the investigating officers. When interviewed, the vict im asserted that Mr. Cowan approached him, made a brief statement in an angry manner, and then shot him. Appellant contends that this evidence was derived f rom a dubious source, is inconsistent with other testimony, is hearsay, and ought not be considered. In this circuit, hearsay evidence may be considered in maki ng sentencing determinations so long as it has “sufficient indicia of reliability to support its probable accuracy.”
See USSG § 6A1.3 and comment; United States v. Fennell , 65 F.3d 812, 813 (10th Cir. 1995). Appellant likens his case to Fennell , where we held that “[u]nsworn out-ofcourt statements made by an unobserved witness and unsupported by other evidence form an insufficient predicate for a sente nce enhancement under § 2K2.1(b)(5).” Fennell , 65 F.3d at 814. However, Fennell is inapposite. In that case, we concluded that the enhancement was imprope r because the impermissible statements “were the only evidence indicative of a felony .” Id. (emphasis supplied). Here, in contrast, independent evidence of felonious conduct exists: the undercover officers testified that they saw the appellant level the sawed-off shotgun and shoot the victim as he was fleeing. Ac cordingly, we need not decide whether the disputed statement lacks the requisite indicia of reliability, for we- 8 -

would affirm the district court’s decision even if we were to reject the victim’s account of the incident.
III. Conclusion A preponderance of the evidence supports the distri ct court’s sentencing decision in this case. We conclude that this courtlacks jurisdiction to entertain appellant’s claim regarding the district court’s re fusal to depart downward. We further conclude that appellant used or possessed afirearm in connection with another felony offense and, consequently, the four (4) point enhancement under § 2K2.1(b)(5) is appropriate. AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge