Court addresses issues of sufficiency and reliability of evidence at sentencing

United States v. Leib, ___F.4th___, 21-2136, 2023 WL 216401 (10th Cir. Jan. 18, 2023) Short version: Government only has to prove facts at sentencing by a preponderance. To justify increase they had to prove our felon in possession used the gun in another felony. Here the state met that by the sworn arrest affidavit based on footage from the officers’ body cams; and mom’s hearsay statement that Mr. Leib shot the floor. Mom’s statement is reliable because there is no indicia that she might be biased against her son and the totality of the circumstances support her statement – primarily multiple people hearing gunshots and a gun next to him with spent shells. Long version: USSG § 2K2.1(b)(6)(B) adds four levels for a felon (or other prohibited person) in possession of gun who uses/possess a gun or ammunition in connection to another felony. “‘Another felony offense,’ for purposes of subsection (b)(6)(B), means any federal, state, or local offense, other than the ... firearms possession ..., punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id. cmt. 14(C) Mr. Leib has some mental health challenges which led to some substance abuse issues and some criminal history (or, according to the court, long and violent). He was living with his parents. He went out and got drunk. He came home and locked himself in his room. His mom’s friend called 911 because she heard shots in the Leib’s home. A police dispatcher called defendant's mom, who reported she was hiding in a bedroom but was worried her son may have shot himself. So, police roll up and try to get Mr. Leib to come out. He doesn’t respond and eventually they look in his window and see that he is passed out with a gun next to him. They go into his room, take the gun, notice three spent shells, and determine that Mr. Leib doesn’t need medical attention because he’s just drunk. One of the officers examines the walls and ceiling and announces he doesn’t see any bullet holes. Mom helpfully points out that’s because they’re in the floor. All of this captured by body cams. The State charges Mr. Leib with shooting at a dwelling and felon in possession. But they drop the charges because Mr. Leib picks up a federal felon in possession charge for this incident. (So, instead of 2 fourth-degree felonies which would get him a max of 36 months, he gets 100 months for his 922(g) but was facing 120.) He pled to the felon-in-possession but disputed that he used the gun in connection with another felony – specifically the New Mexico offense of shooting at a dwelling/occupied building (NMSA 1978, § 30-3-8(A)). The elements are 1) willfully 2) discharging a gun at a 3) dwelling 4) you knew was a dwelling. (Or if it was an occupied building; knew or should have known it was occupied.) (Leib did not challenge if shooting entirely confined in a dwelling is shooting at a dwelling – the 10th points to an unpublished NMSC opinion saying shooting at the ceiling in an apartment building counts. But that was at a different apartment so a different dwelling. Maybe a thought to try and get the 10th to certify to NMSC on this sort of question; we do have State v. Tafoya, 2012-NMSC-030, 285 P.3d 604 which held a shooting entirely in a car is not shooting at or from a car.) Leib did challenge whether he willfully shot at the dwelling. The Court agreed that it was not enough “for the Government to show that Mr. Leib discharged a gun in the home or that somehow bullets ended up in the dwelling. …The Government had to show that the house was Mr. Leib’s ‘principal target’.” Mr. Leib argued that he was trying to kill himself and that he was the target, not the house. The district court disagreed because 1) his mom didn’t say he was suicidal (even though she said she was worried he may have shot himself. Also, I feel if we consulted Taryn on how often people admit they’re suicidal or have people close to them recognize that fact, the numbers would not be high.); 2) he discharged the gun three times, so it wasn’t an accident; 3) when Mr. Leib attempted suicide before he succeeded in injuring himself so since he didn’t hurt himself, he obviously wasn’t trying to kill himself. And for the first time on appeal, so with plain error review, Mr. Leib argued that his mother’s statement was unreliable hearsay. But the court says no error. The totality of the circumstances (phone calls, police response) supports that he fired into the floor. Further, the court said: “Although [mom’s] statement that Mr. Leib shot into the floor was unsworn, it was observed by the three responding police officers and by the affiant officer who reviewed the body camera audio and video recording.” This pronouncement by the court implies the more people who hear something the more true it becomes. Affirmed.