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 *

________________ _________________ Before HOLMES , PHILLIPS , and EID , Circuit Judges.

________________ _________________ A jury convicted Jade Nichols of posse ssion of a firearm and ammunition by a felon, in violation of 18 U. S.C. § 922(g), and the distri ct court sentenced him to 120 months’ imprisonment. Nichols appeals, arguing the evidence wa s 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 appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 12 BACKGROUND In late October 2019, Nichols confronted two of his sisters at a drive-up fried chicken restaurant in El Reno, Oklahom a called Tooters. Bobby Stevenson, a customer at the restaurant, witnessed the confrontation, during which he saw Nichols pull out a small .22 caliber pistol. Stevenso n testified he saw Ni chols leave on a blue bicycle after hearing sirens. J.N., Nichols’ s minor sister, was working at Tooters at the time. She testified Nic hols 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 investig ated. They search ed the backpack Nichols left on his sister’s car and found ammunition insi de. They eventually found Nichols walking through a nearby neighborho od. Nichols admitted being at Tooters but denied having a firearm. Using a sear ch dog, officers found a .22 caliber pistol next to a fence abutting a public alleyway n ear where they found Nichols. They also found a clean hat that looked as though it had not been out side for very long. J.N. and her sister told police Nichols was wearing a hat during the encounter. At trial, the government presented evid ence 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 prepar ed a presentence investig ation report (PSR). It noted Nichols’s criminal hi story included two prior Okla homa felony convictions for Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 23 Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute, in violation of Okla. Stat. tit. 63, § 2-401(A)(1). Applyi ng U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(a)(2) (U.S. Se nt’g Comm’n 2018), the PSR determined Nichols’s base offense level should be increased to 24 becau se he had two prior state drug convictions that were controlled substance offens es under U.S.S.G. § 4B1.2. 1 The PSR also applied a four-level enha ncement, per U.S.S.G. 2K2.1(b)(6)(B), because the crime involved the felonious pointi ng of the pistol at J. N. in violation of Oklahoma law. The PSR therefore calcula ted the total offense level as 28. Based on Nichols’s criminal history ca tegory of IV, the advisory guideline range was 140 to 175 months. But b ecause 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 app eal. First, he argues the evidence was insufficient to support his conviction. Second, he argues his sentence was procedurally unreasonable, specifically ch allenging the treatment of his prior state drug offenses as controlled substance offe nses 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 subs equent to sustaining at least two felony convictions of either a crime of violen ce of a controlled substance offense.” Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 34 four-level enhancement for us e of a firearm in connecti on 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, vi ewing the evidence in the light most favorable to the government a nd drawing all reasona ble inferences from the evidence in favor of the verdict.” United States v. Kaspereit , 994 F.3d 1202, 1207 (10th Ci r. 2021). “Acquittal for insu fficient evidence is proper only when no reasonable jury could find the de fendant guilty beyond a reasonable doubt.” United States v. Wagner , 951 F.3d 1232, 1256 (10th Ci r. 2020) (internal quotation marks omitted). To secure a conviction u nder 18 U.S.C. § 922(g), the United States bore the burden to prove, in ter alia, that Nichols “knowi ngly 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 wa s insufficient to support his conviction, Nichols focuses on the moment law enforcement first contacted him, when he was not carrying a firearm, and the l ack of forensic or DNA eviden ce 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 la ck of physical eviden ce in the backpack linking it to him. But the evidence at tria l included the eyewitne ss testimony of J.N., Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 45 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 smal l and black, and that base d upon his personal knowledge of firearms, looked like a .22 caliber. This eyewitness testimony, construed in the light most favorable to the government, suffi ciently 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 tr unk of his sister’s car at Tooters, and police testified they found both long an d short .22 caliber ammunition in the backpack. The evidence was therefore also sufficient fo r a reasonable jury to find beyond a reasonable doubt Ni chols knowingly possessed a mmunition as charged.
2. Procedural Reasonableness “When a party challenges a sentence fo r procedural reasonableness, our standard of review is ordi narily abuse of discretion, under which we review de novo the district court’s legal c onclusions regarding the guide lines 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 le ft with the definite and firm conviction that a mistake has been committed.” United States v. Orozco , 916 F.3d 919, 924 (10th Cir. 2019) (inter nal 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 fede ral definition in the Controlled Substances Act (CSA), and therefore his Oklahoma c onvictions did not qualify as predicate Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 56 offenses to enhance his base offense leve l 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 (10t h 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 da ngerous 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 enhancem ent. 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 c ourt 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 ph ysical injury or me ntal or emotional intimidation or for purposes of whimsy , humor or prank, or in anger or otherwise . . . .” Specifically, the c ourt 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 “s aw 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 wea pon.” R. Vol. 3 at 30. Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 67 Nichols argues the district court’s fi ndings in this respect were clearly erroneous, pointing to diffe rent portions of J.N.’s testimony and Stevenson’s testimony that Nichols “just s howed [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 erre d in applying U.S.S.G. § 2K 2.1(b)(6)(B). The district court’s findings have record support in th e testimony of J.N. and Stevenson.
3. Substantive Reasonableness “We review the substantive reasonabl eness 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 distri ct court’s determination and overturn a sentence as substantively unreas onable only if it is arbitr ary, capricious, whimsical, or manifestly unjust.” Id. “In this circuit, a sentence imposed within the properly calculated advisory guidelin e 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 ma rks and alteration omitted). When announcing Nichols’s sentence, the district c ourt 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 distri ct court’s remark, pointing to the small caliber of the gun, the lack of a magazine, and the lack of phys ical injury in the incident. He further argues the district court placed too much weight on his assaultive conduct in jail, gi ven its remark that it woul d not consider unadjudicated Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 78 conduct, and also reemphasi zes his personal history and characteristics, including a difficult childhood. But thes e 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 rele vant factors under § 3553, and concluded the mo st compelling factor was th e need for “incapacitation, for the protection of the public.” Id. at 45. Nichols’s argum ents do not overcome the substantial deference we ow e to that conclusion.
CONCLUSION We affirm the judgment of the district court.

Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 20-6198 Document: 010110618755 Date Filed: 12/14/2021 Page: 8