UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JADE CHRISTIAN NICHOLS, 

 Defendant - Appellant. 

No. 20-6198 

(D.C. No. 5:20-CR-00006-F-1) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

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Before HOLMES, PHILLIPS, and EID, Circuit Judges. 

_________________________________ 

A jury convicted Jade Nichols of possession of a firearm and ammunition by a 

felon, in violation of 18 U.S.C. § 922(g), and the district court sentenced him to 120 

months’ imprisonment. Nichols appeals, arguing the evidence was insufficient to 

convict him and the court’s sentence was substantively and procedurally 

unreasonable. Having jurisdiction under 28 U.S.C. § 1291, we affirm. 

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 14, 2021

Christopher M. Wolpert 

Clerk of Court

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BACKGROUND 

In late October 2019, Nichols confronted two of his sisters at a drive-up fried 

chicken restaurant in El Reno, Oklahoma called Tooters. Bobby Stevenson, a 

customer at the restaurant, witnessed the confrontation, during which he saw Nichols 

pull out a small .22 caliber pistol. Stevenson testified he saw Nichols leave on a blue 

bicycle after hearing sirens. J.N., Nichols’s minor sister, was working at Tooters at 

the time. She testified Nichols came into the restaurant wearing a backpack, which 

he carried to her older sister’s car outside the restaurant and placed on the trunk. She 

also testified she saw Nichols pull out a gun, which scared her, so she ran back into 

the restaurant storage area and cried. 

Police arrived at Tooters and investigated. They searched the backpack 

Nichols left on his sister’s car and found ammunition inside. They eventually found 

Nichols walking through a nearby neighborhood. Nichols admitted being at Tooters 

but denied having a firearm. Using a search dog, officers found a .22 caliber pistol 

next to a fence abutting a public alleyway near where they found Nichols. They also 

found a clean hat that looked as though it had not been outside for very long. J.N. 

and her sister told police Nichols was wearing a hat during the encounter. 

At trial, the government presented evidence from J.N., Stevenson, and several 

investigating officers. A jury convicted Nichols of illegal possession of a firearm 

and ammunition by a felon. 

The probation office prepared a presentence investigation report (PSR). It 

noted Nichols’s criminal history included two prior Oklahoma felony convictions for 

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Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute, in 

violation of Okla. Stat. tit. 63, § 2-401(A)(1). Applying U.S. Sentencing Guidelines 

Manual (U.S.S.G.) § 2K2.1(a)(2) (U.S. Sent’g Comm’n 2018), the PSR determined 

Nichols’s base offense level should be increased to 24 because he had two prior state 

drug convictions that were controlled substance offenses under U.S.S.G. § 4B1.2.1

 

The PSR also applied a four-level enhancement, per U.S.S.G. 2K2.1(b)(6)(B), 

because the crime involved the felonious pointing of the pistol at J.N. in violation of 

Oklahoma law. The PSR therefore calculated the total offense level as 28. 

Based on Nichols’s criminal history category of IV, the advisory guideline 

range was 140 to 175 months. But because the statutory maximum term of 

imprisonment was 10 years, see 18 U.S.C. §924(a)(2), the guideline term of 

imprisonment was 120 months, see U.S.S.G § 5G1.1(a). Overruling Nichols’s 

objections to the PSR, the court sentenced him to 120 months’ imprisonment. 

DISCUSSION 

Nichols raises three arguments on appeal. First, he argues the evidence was 

insufficient to support his conviction. Second, he argues his sentence was 

procedurally unreasonable, specifically challenging the treatment of his prior state 

drug offenses as controlled substance offenses under U.S.S.G. § 4B1.2 so as to 

enhance his base offense level under U.S.S.G. § 2K2.1(a)(2) and the imposition of a 

1

 Section 2K2.1(a)(2) provides for a base offense level of 24, “if the defendant 

committed any part of the instant offense subsequent to sustaining at least two felony 

convictions of either a crime of violence of a controlled substance offense.” 

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four-level enhancement for use of a firearm in connection with a felony offense under 

U.S.S.G. § 2K2.1(b)(6)(B). Third, he argues his sentence was substantively 

unreasonable. We consider each argument in turn. 

1. Sufficiency of the Evidence 

“We review legal sufficiency of evidence de novo, viewing the evidence in the 

light most favorable to the government and drawing all reasonable inferences from 

the evidence in favor of the verdict.” United States v. Kaspereit, 994 F.3d 

1202, 1207 (10th Cir. 2021). “Acquittal for insufficient evidence is proper only 

when no reasonable jury could find the defendant guilty beyond a reasonable doubt.” 

United States v. Wagner, 951 F.3d 1232, 1256 (10th Cir. 2020) (internal quotation 

marks omitted). To secure a conviction under 18 U.S.C. § 922(g), the United States 

bore the burden to prove, inter alia, that Nichols “knowingly possessed the firearm as 

charged in the Indictment or knowingly possessed ammunition as charged in the 

Indictment.” R. Vol. 1 at 130; see also United States v. Taylor, 113 F.3d 1136, 1144 

(10th Cir. 1997). 

In arguing the evidence was insufficient to support his conviction, Nichols 

focuses on the moment law enforcement first contacted him, when he was not 

carrying a firearm, and the lack of forensic or DNA evidence linking him to the pistol 

police found near where they contacted him. He also highlights the lack of testimony 

from other individuals at the scene, the lack of surveillance footage despite the 

presence of cameras at Tooters, and the lack of physical evidence in the backpack 

linking it to him. But the evidence at trial included the eyewitness testimony of J.N., 

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who stated Nichols “pulled out his gun,” R. Vol. 4 at 38, and Stevenson, who stated 

Nichols “pulled a small gun out” of his pocket, id. at 17. Stevenson went on to 

testify that the gun was small and black, and that based upon his personal knowledge 

of firearms, looked like a .22 caliber. This eyewitness testimony, construed in the 

light most favorable to the government, sufficiently links Nichols to the small, black, 

.22 caliber pistol police found a few blocks away from Tooters. Likewise, J.N. 

testified Nichols put his backpack on the trunk of his sister’s car at Tooters, and 

police testified they found both long and short .22 caliber ammunition in the 

backpack. The evidence was therefore also sufficient for a reasonable jury to find 

beyond a reasonable doubt Nichols knowingly possessed ammunition as charged. 

2. Procedural Reasonableness 

“When a party challenges a sentence for procedural reasonableness, our 

standard of review is ordinarily abuse of discretion, under which we review de novo 

the district court’s legal conclusions regarding the guidelines and review its factual 

findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 

(10th Cir. 2012). “Factual findings can be found clearly erroneous if they have no 

basis in the record, or if this court is left with the definite and firm conviction that a 

mistake has been committed.” United States v. Orozco, 916 F.3d 919, 924 

(10th Cir. 2019) (internal quotation marks and citations omitted). 

We first reject Nichols’s argument that the definition of “controlled substance” 

in U.S.S.G. § 4B1.2 is limited to the federal definition in the Controlled Substances 

Act (CSA), and therefore his Oklahoma convictions did not qualify as predicate 

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offenses to enhance his base offense level under U.S.S.G. § 2K2.1(a)(2). That 

argument is foreclosed by our recent decision in United States v. Jones, 15 F.4th 

1288, 1291–92 (10th Cir. 2021). In Jones, we held the reference to “controlled 

substances” in U.S.S.G. § 4B1.2 is not limited to federally controlled substances 

under the federal CSA, and, therefore, a prior conviction under Oklahoma law for 

possession of a controlled dangerous substance is an appropriate predicate for 

application of an enhanced base offense level. See id. 

We also reject Nichols’s challenge to the district court’s application of a 

four-level sentence enhancement. The district court applied the enhancement 

because Nichols “used or possessed [the] firearm or ammunition in connection with 

another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B). The court found the trial 

testimony established Nichols committed the crime of feloniously pointing a firearm 

in violation of Okla. Stat. tit. 21 § 1289.16, which makes it unlawful to point a 

firearm “at any person . . . for the purpose of threatening . . . or with any malice or 

for any purpose of injuring, either through physical injury or mental or emotional 

intimidation or for purposes of whimsy, humor or prank, or in anger or 

otherwise . . . .” Specifically, the court found the trial testimony established by a 

preponderance of the evidence that Nichols pointed the gun at his sister. The court 

made that finding considering all circumstances as they existed during the encounter, 

and interpreted J.N.’s testimony that she “saw the end of the gun that the bullets 

came out,” in light of those circumstances, as sufficiently indicative “that [Nichols] 

did, in fact, point the weapon.” R. Vol. 3 at 30. 

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Nichols argues the district court’s findings in this respect were clearly 

erroneous, pointing to different portions of J.N.’s testimony and Stevenson’s 

testimony that Nichols “just showed [the gun] to us and kept arguing with us.” Id. at 

26. But, giving appropriate deference to the trial court’s credibility findings, we 

cannot conclude it clearly erred in applying U.S.S.G. § 2K2.1(b)(6)(B). The district 

court’s findings have record support in the testimony of J.N. and Stevenson. 

3. Substantive Reasonableness 

“We review the substantive reasonableness of a sentence for abuse of 

discretion.” Kaspereit, 994 F.3d at 1207. Under this standard of review, “we will 

give substantial deference to the district court’s determination and overturn a 

sentence as substantively unreasonable only if it is arbitrary, capricious, whimsical, 

or manifestly unjust.” Id. “In this circuit, a sentence imposed within the properly 

calculated advisory guideline range is entitled to a rebuttable presumption of 

reasonableness on appeal.” United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th 

Cir. 2011) (internal quotation marks and alteration omitted). 

When announcing Nichols’s sentence, the district court remarked that his 

conduct was “toward the more serious end” of the types of conduct resulting in a 

§ 922(g) violation. R, Vol. 3 at 44. In attacking the substantive reasonableness of 

his sentence, Nichols criticizes the district court’s remark, pointing to the small 

caliber of the gun, the lack of a magazine, and the lack of physical injury in the 

incident. He further argues the district court placed too much weight on his 

assaultive conduct in jail, given its remark that it would not consider unadjudicated 

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conduct, and also reemphasizes his personal history and characteristics, including a 

difficult childhood. But these arguments are insufficient to rebut the presumption of 

reasonableness of the guidelines sentence in this case. The district court accounted 

for the factors Nichols highlights on appeal, considered the relevant factors under 

§ 3553, and concluded the most compelling factor was the need for “incapacitation, 

for the protection of the public.” Id. at 45. Nichols’s arguments do not overcome the 

substantial deference we owe to that conclusion. 

CONCLUSION 

We affirm the judgment of the district court. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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