Appellate Case: 23-2029 Document: 010110973955 Date Filed: 12/26/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 26, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2029
JUSTIN STEPP,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:21-CR-01070-WJ-1)
_________________________________
Joel R. Meyers, Law Office of Joel R. Meyers LLC, Santa Fe, New Mexico, for
Defendant – Appellant.
Tiffany L. Walters, Assistant United States Attorney (Alexander M.M. Uballez, United
States Attorney, with her on the brief), Office of the United States Attorney,
Albuquerque, New Mexico, for Plaintiff – Appellee.
_________________________________
Before HOLMES, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
On February 7, 2021, police officers and paramedics responded to a call regarding
an apparent gunshot victim. Justin Stepp was found with a wounded leg in the passenger
seat of a car driven by his girlfriend. Officers also found a small, holstered firearm in the
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car’s open center console and ammunition under the passenger seat. Hours later, a search
of Mr. Stepp’s home uncovered multiple rounds of ammunition. Mr. Stepp was charged
with one count of being a felon in possession of a firearm and ammunition; he proceeded
to trial and was convicted by a jury. At sentencing, pursuant to the U.S. Sentencing
Guidelines, the court calculated Mr. Stepp’s base offense level as 20, accounting for his
prior sentence for a crime of violence in 2002. Ultimately, the court sentenced Mr. Stepp
to 72 months’ incarceration. Mr. Stepp appealed.
Mr. Stepp argues that the evidence presented at trial was insufficient to find he
constructively possessed a firearm or ammunition, and that the court clearly erred by
including his 2002 conviction in its calculation of his base offense level. We conclude the
evidence presented at trial was sufficient for a reasonable trier of fact to find, beyond a
reasonable doubt, that Mr. Stepp had constructive possession of the ammunition found in
his home. Because possession of the ammunition is independently sufficient to sustain
Mr. Stepp’s conviction, we do not address the sufficiency of the evidence regarding his
possession of the firearm found in the car. We also conclude the district court did not
clearly err in finding Mr. Stepp’s 2002 conviction fell within the applicable fifteen-year
lookback period for calculating his base offense level. Thus, we affirm Mr. Stepp’s
conviction and sentence.
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I. BACKGROUND
A. Factual History 1
On the evening of February 7, 2021, McKinley County Sheriff’s Deputy Dewayne
Holder responded to a call requesting assistance for an apparent gunshot victim. Deputy
Holder located the victim in a parked car. The car’s driver, Stefanie Ratliff, exited and
identified herself. Deputy Holder approached the car from the driver’s side and observed
a man, later identified as Mr. Stepp, reclined in the passenger seat with a bloody t-shirt
tied around his leg. Mr. Stepp was in obvious distress and requesting help. Deputy Holder
assured him an ambulance was on the way. As he looked into the vehicle, Deputy Holder
also noticed a small, holstered handgun lying in plain view in the center console, between
the driver and passenger seats. Deputy Holder seized the firearm, which was fully loaded
with five unspent .22 long-rifle cartridges. Deputy Holder noticed no indication that the
gun had been recently fired.
Cibola County Deputy Brian Gardner, Sergeant Thomas Archuleta, and former
Deputy Alan Roane also responded to the scene. A decision was made to seek a search
warrant for the vehicle. Ms. Ratliff requested the return of her large, red wallet from the
1
The following facts are drawn from the evidence presented at trial. Where there
was conflicting evidence, we view the facts based on the evidence most favorable to the
jury’s verdict. See United States v. Gregory, 54 F.4th 1183, 1192 (10th Cir. 2022), cert.
denied, No. 22-905,
2023 WL 2959422 (U.S. Apr. 17, 2023) (“In determining whether
the government presented sufficient evidence to support the jury’s verdict, this court must
review the record de novo and ask only whether, taking the evidence—both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom—in the
light most favorable to the government, a reasonable jury could find Defendant guilty
beyond a reasonable doubt.” (quotation marks omitted)).
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vehicle. Officers returned the wallet, and the vehicle was sealed and towed to the Cibola
County Sheriff’s Office. A later search of the vehicle recovered two rounds of .22 caliber
ammunition from under the front passenger seat.
At approximately 2:00 a.m., after paramedics had transported Mr. Stepp to a
hospital, Deputy Holder drove Ms. Ratliff to the Quality Inn in Gallup, New Mexico.
Based on Ms. Ratliff’s account that Mr. Stepp had been shot in a random encounter near
Bluewater Lake, Deputies Roane and Gardner proceeded to investigate that area. There
they were joined by Cibola County Detective Anthony Kemp. Finding no evidence at the
lake, they proceeded to Mr. Stepp’s reported address, at his parents’ home. The deputies
informed Mr. Stepp’s parents that he had been shot and taken to a hospital near Gallup,
New Mexico. His parents informed the deputies that Mr. Stepp lived in the house across
the street. Deputies Gardner and Roane proceeded to Mr. Stepp’s house. They knocked,
but no one answered.
Having observed blood on the home’s front door jam and on the outside of a truck
parked in the driveway, the deputies sought a search warrant for the house. After the
warrant issued, officers searched the home. Their search recovered: men’s and women’s
clothing, on the bed; a suitcase of women’s clothing, in a living room; a personalized
mousepad with a photo of Mr. Stepp and Ms. Ratliff, near a computer monitor displaying
live video from home security cameras; 9mm and .223 ammunition, in upper cabinets on
either side of the computer monitor; one 300 Blackout ammunition round on the living
room floor, near men’s shoes; and another 300 Blackout ammunition round on the floor,
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under the men’s shoes. Officers also noted what appeared to be blood at different spots
throughout the house.
The search also recovered evidence officers believed indicated someone had
entered the house while deputies were stationed outside, waiting for the warrant to issue.
This evidence included a hospital bracelet, showing a time of 12:30 a.m. and date of 2-8-
2021; a plastic bag containing personal items with a label from Gallup Indian Medical
Center, dated 2-8-2021; and a Wal-Mart receipt, dated 2-8-2021 at 7:18, reflecting the
purchase of rolled gauze wrap, pants, and socks. Officers also discovered the same red
wallet that had been returned to Ms. Ratliff hours earlier and a hotel room key from the
Quality Inn. They also found Mr. Stepp’s driver’s license in the home.
The same day the home was searched, Mr. Stepp and Ms. Ratliff were arrested on
state charges of evidence tampering, obstruction, and accessory to felon in possession.
These charges were later dismissed. Later that summer, Mr. Stepp was arrested on a
federal charge of felon in possession.
B. Procedural History
Trial
In July 2021, Mr. Stepp was indicted on one count of felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. Mr. Stepp
proceeded to trial in April 2022. At trial, the Government presented Deputy Gardner’s
lapel video of the search of Mr. Stepp’s home, photos from the search of the car and
Mr. Stepp’s home, as well as the firearm and ammunition recovered from the car and the
home. The jury also heard testimony from Deputy Holder, former Deputy Roane, Deputy
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Gardner, Detective Kemp, and Special Agents from the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
At the close of evidence, Mr. Stepp moved for Judgment of Acquittal pursuant to
Federal Rule of Criminal Procedure 29. Mr. Stepp argued that, based on the joint
occupancy of the car and home by Mr. Stepp and Ms. Ratliff, the Government had failed
to present any evidence to establish Mr. Stepp’s constructive possession of the firearm or
ammunition. Concluding the Government had presented a sufficient case to send to the
jury, the district court denied Mr. Stepp’s Rule 29 motion on this ground. The jury found
Mr. Stepp guilty on the sole felon-in-possession charge.
Sentencing
In July 2022, the United States Probation Office (“Probation”) released
Mr. Stepp’s initial Presentence Investigation Report (“PSR”), calculating his base offense
level as 24. Mr. Stepp filed numerous objections to the PSR, including, as relevant to this
appeal, two objections to Probation’s determination of his base offense level. Mr. Stepp’s
criminal history included two voluntary manslaughter convictions. For the first
manslaughter conviction, Mr. Stepp was sentenced, on July 12, 2002, to five years’
incarceration. Mr. Stepp committed the second manslaughter, for which he was sentenced
on March 28, 2006, to one year of incarceration, while he was incarcerated on his first
sentence. Mr. Stepp argued Probation miscalculated his base offense level because
neither of his two previous manslaughter convictions should be counted as crimes of
violence under Guidelines § 2K2.1, contending they fell outside the applicable lookback
periods.
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Pursuant to the Guidelines, sentences of 13, or fewer, months count as crimes of
violence under § 2K2.1 only if they were imposed within the ten years preceding the
commission of the instant offense; sentences exceeding 13 months count only if they
resulted in the defendant being incarcerated within the fifteen years preceding the instant
offense. United States Sentencing Commission, Guidelines Manual, § 4A1.2(e)(1)–(2)
(Mar. 2022). Mr. Stepp contended his 2002 conviction fell outside the applicable
lookback period because his incarceration ended no later than December 27, 2005, more
than fifteen years before he committed the instant offense, on February 7, 2021.
Probation disputed Mr. Stepp’s calculation of his incarceration’s end date and maintained
that his 2002 conviction was properly included in determining his base offense level. But
Probation, the Government, and the court agreed that Mr. Stepp’s 2006 conviction should
not have been included as it fell outside the applicable ten-year lookback period, and the
court accordingly lowered his base offense level to 20. 2
On October 17, 2022, the district court held a hearing to address Mr. Stepp’s
objections. The Government called Denise Chavez from the New Mexico Corrections
Department. In her role for the division of Offender Management Services, Ms. Chavez
oversees the interpretation of judgments and sentences, application of good time credits
2
Mr. Stepp’s 2006 conviction was subject to a ten-year lookback period, because
the sentence imposed was less than 13 months. Mr. Stepp was sentenced for his second
manslaughter conviction on March 28, 2006, more than ten years before the instant
offense on February 7, 2021. Thus, applying the ten-year lookback period, Mr. Stepp’s
2006 conviction should not have been included in the calculation of his base offense level
under Guidelines § 2K2.1.
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and laws, and release of inmates. According to Ms. Chavez, Mr. Stepp was released from
custody for his 2002 conviction on February 16, 2006, although he remained in
continuous custody due to his 2006 manslaughter conviction. After hearing argument
from counsel, the court took Mr. Stepp’s objection to the inclusion of his 2002 conviction
under advisement. In accordance with the court’s rulings on Mr. Stepp’s other objections,
Probation filed a revised PSR.
The court reconvened on January 11, 2023, when it ruled on Mr. Stepp’s
remaining objection and pronounced his sentence. In an oral ruling, followed by a written
order, the court found Mr. Stepp’s 2002 conviction fell within the applicable lookback
period for calculating his base offense level. Based on the New Mexico Corrections
Department’s documentation and Ms. Chavez’s testimony, the court found “it most
logical to consider . . . February 16, 2006, to be the final day of [Mr. Stepp’s] sentence on
the 2002 offense”—less than fifteen years prior to the instant offense on February 7,
2021. Appellant’s Br. Attach. B at 6–7. Accordingly, the court calculated Mr. Stepp’s
base offense level as 20, and his criminal history as Category VI, making his advisory
Guidelines sentencing range 70 to 87 months. Ultimately, the court sentenced Mr. Stepp
to 72 months’ incarceration. Mr. Stepp filed this timely appeal.
II. DISCUSSION
Mr. Stepp challenges the sufficiency of the evidence to support his felon-in-
possession conviction and the district court’s calculation of his base offense level. We
consider each argument in turn.
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A. Sufficiency of the Evidence
Standard of Review
We review the sufficiency of the evidence to support a conviction de novo to
“determine whether, viewing the evidence in the light most favorable to the government,
any rational trier of fact could have found the defendant guilty of the crime beyond a
reasonable doubt.” United States v. Gordon, 710 F.3d 1124, 1141 (10th Cir. 2013)
(quotation marks omitted). In conducting this review, “we consider all of the evidence,
direct and circumstantial, along with reasonable inferences, but we do not weigh the
evidence or consider the relative credibility of witnesses.” United States v. Griffith,
928
F.3d 855, 868–69 (10th Cir. 2019) (quotation marks omitted). Thus, our review is limited
and deferential; “we may reverse only if no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. at 869 (quotation marks
omitted).
Application
Mr. Stepp was indicted on one count of felon in possession of a firearm or
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924. See
18 U.S.C. § 922(g)(1)
(“It shall be unlawful for any person . . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm or ammunition[.]”). To convict Mr. Stepp under
§ 922(g)(1), the Government had to prove, among other things, that he knowingly
possessed either a firearm or ammunition. Cf. United States v. Veng Xiong,
1 F.4th 848,
852 (10th Cir. 2021) (“[T]o convict Defendant . . . , the Government had to prove . . .
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Defendant possessed, actually or constructively, at least one of the firearms
identified[.]”). Thus, the jury could have convicted Mr. Stepp based on a finding that he
possessed either the firearm found in the car, or the ammunition found in his home, or
both. See Appellee’s Br. at 14; Oral Argument at 11:40–12:09 (Appellant, conceding
evidence sufficient to support finding either possession of the firearm found in the car or
the ammunition found in the home would sustain conviction). Because we conclude the
evidence presented at trial was sufficient for a reasonable trier of fact to find Mr. Stepp
possessed the ammunition found in his home, we do not address the sufficiency of the
evidence regarding possession of the firearm found in the car.
Possession may be actual or constructive. See Veng Xiong, 1 F.4th at 852. Here,
both parties agree the Government lacked evidence that Mr. Stepp actually possessed the
ammunition. Mr. Stepp contests the sufficiency of the evidence to demonstrate his
constructive possession. “[C]onstructive possession exists when a person[,] not in actual
possession[,] knowingly has the power and intent at a given time to exercise dominion or
control over an object.” United States v. Little,
829 F.3d 1177, 1182 (10th Cir. 2016)
(citing Henderson v. United States,
575 U.S. 622, 626 (2015)); see Henderson,
575 U.S.
at 626 (“Constructive possession is established when a person, though lacking such
physical custody, still has the power and intent to exercise control over the object.”
(emphasis added)). When a defendant has exclusive control over the premises where an
object is found, “a jury may infer constructive possession.” Little,
829 F.3d at 1183. But
when a defendant jointly occupies the premises, the Government must “show a nexus
between the defendant and the firearm [or ammunition].” United States v. Benford, 875
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F.3d 1007, 1015 (10th Cir. 2017). “That is, the [G]overnment must demonstrate the
defendant knew of, had access to, and intended to exercise dominion or control over the
contraband.” United States v. Johnson,
46 F.4th 1183, 1187 (10th Cir. 2022). This “may
be proved by circumstantial as well as direct evidence.”
Id. (quotation marks omitted).
Multiple individuals may have constructive possession of the contraband; exclusive
possession is not required. See United States v. McKissick,
204 F.3d 1282, 1291 (10th
Cir. 2000) (discussing joint occupancy and nonexclusive possession). But the defendant’s
“joint occupancy alone” cannot sustain an inference of constructive possession. United
States v. Hishaw,
235 F.3d 565, 571 (10th Cir. 2000).
Mr. Stepp does not dispute his joint occupancy of the home. But he argues no
evidence was presented at trial to demonstrate the requisite nexus between himself and
the ammunition. Specifically, Mr. Stepp contends there was no evidence linking him to
the ammunition and nothing to support a finding that he “had knowledge of” or “intended
to exercise control over” the ammunition. 3 Appellant’s Br. at 13.
3
Mr. Stepp also implies that police falsified or manipulated evidence, as portrayed
in photo exhibits 9, 30, 32, 41, and 51, to create the appearance of a greater connection
between Mr. Stepp and the ammunition than actually existed. But Mr. Stepp made no
objection to the introduction of these exhibits at trial, and does not do so on appeal.
Therefore, any such argument is forfeited. See United States v. Leffler, 942 F.3d 1192,
1196 (10th Cir. 2019) (noting that arguments not raised before the district court are
forfeited and will be considered only to the extent a party argues plain error on appeal).
Additionally, absent any substantive support developed in the record, we will not accept
Mr. Stepp’s speculation that officers contrived the evidence recovered from their search
of his home. Cf. United States v. Cardenas,
864 F.2d 1528, 1532–33 (10th Cir. 1989)
(“Absent some showing by the defendant that the evidence has been tampered with, it
will not be presumed that the investigators who had custody of it would do so.”
(quotation marks and brackets omitted)).
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The Government responds that, treating the home as jointly occupied, 4 sufficient
evidence was presented at trial for a rational trier of fact to find the required nexus
between Mr. Stepp and the ammunition. The Government argues Mr. Stepp’s knowledge,
access, and intent to control the ammunition may be inferred from its location: organized
in cabinets in an actively used home office and scattered on the living room floor
intermixed with Mr. Stepp’s personal belongings. Viewed in the light most favorable to
the verdict, the Government contends this evidence was sufficient for a reasonable juror
to find Mr. Stepp constructively possessed the ammunition found in his home. We agree.
In considering joint occupancy, presence alone does not suffice to show
constructive possession of a firearm or ammunition. See United States v. Taylor, 113 F.3d
1136, 1146 (10th Cir. 1997) (“[J]oint occupancy of a bedroom, without more, is
insufficient to support a conviction of constructive possession of a gun found in a
bedroom.”). Thus, we look to what other evidence supports an inference that Mr. Stepp
had access to, knew of, and intended to exercise dominion or control over the
ammunition found in his home. See, e.g., United States v. Campbell,
763 F. App’x 745,
749 (10th Cir. 2019) (concluding the Government had met its burden of demonstrating
4
The Government’s brief contends the evidence presented at trial was ambiguous
regarding whether Ms. Ratliff lived at the home and a jury could reasonably conclude
Mr. Stepp was the sole occupant. This conclusion alone could suffice to show
Mr. Stepp’s constructive possession of the ammunition. See United States v. Little, 829
F.3d 1177, 1183 (10th Cir. 2016) (concluding that a jury may infer constructive
possession from a defendant’s exclusive occupancy and control of the premises).
However, at oral argument, the Government conceded this matter is properly viewed as a
joint occupancy case. Oral Argument at 22:05–22:35 (Government conceding home was
jointly occupied). Thus, we consider it as such.
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constructive possession where evidence showed the firearm was found in a toolbox which
defendant had been actively using to work on a go-cart); 5 United States v. Martinez, 749
F. App’x 698, 704–05 (10th Cir. 2018) (concluding evidence of constructive possession
was sufficient where (1) firearm was found in defendant’s bedroom where she kept her
personal effects and in a safe where informant testified defendant concealed drugs,
defendant was a “high-level drug dealer”, and firearm was a “tactical type” used for self-
defense; and (2) ammunition was found in plain view on top of defendant’s bed); 6 United
States v. Mendez,
514 F.3d 1035, 1042 (10th Cir. 2008), abrogated on other grounds by
5
In United States v. Campbell, we reviewed the evidence supporting constructive
possession in the context of appellant’s argument that omission of the intent requirement
in jury instructions regarding constructive possession constituted plain error. 763 F.
App’x 745 (10th Cir. 2019) (unpublished) (citing Henderson v. United States,
575 U.S.
622 (2015)). Under plain error review, we look to the evidence to determine whether, but
for the error, there is a “reasonable probability that . . . the result of the proceeding would
have been different.” United States v. Veng Xiong,
1 F.4th 848, 853 (10th Cir. 2021)
(citing Molina-Martinez v. United States,
578 U.S. 189, 194 (2016)). Here, we may
reverse Mr. Stepp’s conviction “only if no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v. Griffith,
928
F.3d 855, 869 (10th Cir. 2019) (quotation marks omitted). Demonstrating a “reasonable
probability” of acquittal is a distinct and less demanding standard than demonstrating that
“no rational trier of fact” could have convicted beyond a reasonable doubt. See, e.g.,
United States v. Samora,
954 F.3d 1286, 1290–96 (10th Cir. 2020) (finding evidence was
sufficient to sustain conviction but reversing and remanding because the court plainly
erred by omitting the intent requirement in jury instructions); United States v. Benford,
875 F.3d 1007, 1018, 1021 (10th Cir. 2017) (reversing based on plainly erroneous jury
instructions but commenting, in dicta, that “a reasonable jury could conclude from th[e]
evidence that [the defendant] intended to exercise control” of the firearms found in his
home).
6
Although Campbell, 763 F. App’x 745, and United States v. Martinez,
749 F.
App’x 698 (10th Cir. 2018), are unpublished and therefore not binding, they may be cited
for their persuasive value. See 10th Cir. R. 32.1 (“Unpublished decisions are not
precedential but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
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Henderson, 575 U.S. 622 (concluding sufficient evidence demonstrated defendant “had
knowledge of and access to the firearms, as well as the ability and intention to control
them” where shotgun was found sitting in the open in another bedroom, accessible to
anyone in the house, defendant admitted to knowing about it, and ammunition was found
throughout the house).
Here, the ammunition found in Mr. Stepp’s home was located in cabinets in a
home office space, along with other personal effects, and on the floor under and around
men’s shoes and other items. Physical evidence demonstrated Mr. Stepp actively used the
home and the office space. The office included a monitor, displaying live video from
home security cameras, and a custom mouse pad featuring a picture of Mr. Stepp and
Ms. Ratliff. And, in addition to the men’s clothing and shoes, several of Mr. Stepp’s
personal belongings were found in the home including his driver’s license; a hospital
admission bracelet, dated 2-8-2021 at 12:30 a.m.; and a bag of items with a label from
Gallup Indian medical center, also dated 2-8-2021. The hospital bracelet and bag of items
may reasonably be inferred to belong to Mr. Stepp, who was transported to a Gallup
hospital in the early hours of February 8. Viewed in the light most favorable to the
Government, this evidence supports a rational inference that Mr. Stepp actively used the
home, including the office area, and had in fact reentered the home after his discharge
from the hospital and before officers conducted their search.
The ammunition’s presence in areas Mr. Stepp actively used, alongside his
personal belongings, supports a rational inference that he had access to, knowledge of,
and an intent to control the ammunition. See Campbell, 763 F. App’x at 749 (firearm
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found in toolbox defendant actively used); Martinez, 749 F. App’x at 705 (ammunition
found in plain view on top of defendant’s bed); Mendez, 514 F.3d at 1042 (firearm found
in plain view, accessible to anyone in the house, and ammunition found throughout the
house); cf. United States v. Taylor,
113 F.3d 1136, 1145–46 (10th Cir. 1997) (no
evidence defendant used closet where firearm was found); United States v. Mills,
29 F.3d
545, 550 (10th Cir. 1994) (no evidence defendant knew of firearms roommate had
concealed). Although the evidence may also support other inferences, evidence sufficient
to support the jury’s verdict need not exclude all other hypotheticals or possibilities. See
United States v. Davis,
437 F.3d 989, 993 (10th Cir. 2006). It need only demonstrate that
a rational trier of fact could find, beyond a reasonable doubt, all elements necessary to
convict.
Id. Thus, we conclude the evidence was sufficient to support Mr. Stepp’s
conviction.
B. Base Offense Level Calculation
Standard of Review
Application of the Guidelines presents mixed questions of fact and law. United
States v. Roberts, 898 F.2d 1465, 1469 (10th Cir. 1990). We review “legal questions
regarding the application of the Sentencing Guidelines de novo, and [the] district court’s
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factual findings for clear error.” 7 United States v. Craine, 995 F.3d 1139, 1153 (10th Cir.
2021) (quotation marks and ellipses omitted). Here, Mr. Stepp challenges only the district
court’s factual finding that he completed his term of incarceration for his 2002 conviction
on February 16, 2006, contending that instead his term of incarceration ended on
December 27, 2005. Such factual findings are clearly erroneous “only if they are without
factual support in the record” or if, “considering all the evidence, [we are] left with a
definite and firm conviction that a mistake has been made.” United States v. Lozano,
921
F.3d 942, 946 (10th Cir. 2019). “In general, factual findings at sentencing must be
supported by a preponderance of the evidence.” United States v. Stein,
985 F.3d 1254,
1266 (10th Cir. 2021).
Legal Background
The base offense level for a violation of 18 U.S.C. § 922(g) is calculated pursuant
to Guidelines § 2K2.1, which states in relevant part:
(a) Base Offense Level (Apply the Greatest): . . .
(4) 20, if . . . (A) the defendant committed any part of the instant offense
subsequent to sustaining one felony conviction of . . . a crime of
violence . . .
7
Ultimately, “[f]ailure to calculate the correct Guidelines range constitutes
procedural error,” Rosales-Mireles v. United States, 585 U.S. -- , 138 S. Ct. 1897, 1904
(2018) (alteration in original) (quoting Peugh v. United States,
569 U.S. 530, 537
(2013)), and is “harmless and not reversible if the record viewed as a whole clearly
indicates the district court would have imposed the same sentence had it not relied on the
procedural miscue(s),” United States v. Lee,
71 F.4th 1217, 1221 (10th Cir. 2023)
(internal quotation marks omitted). Because we conclude the district court did not clearly
err in its factual findings related to calculating Mr. Stepp’s Guidelines range, we do not
consider the harmlessness of any error.
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(6) 14, if the defendant (A) was a prohibited person at the time the
defendant committed the instant offense[.]
U.S.S.G. § 2K2.1. However, crimes of violence will count for purposes of
§ 2K2.1(a)(4)(A) only if they receive criminal history points under Guidelines
§ 4A1.1(a), (b), or (c). Id. § 2K2.1, comment. (n.10). A “sentence of imprisonment
exceeding one year and one month” will receive criminal history points only if it “was
imposed within fifteen years” of the commission of the instant offense or “resulted in the
defendant being incarcerated during any part of such fifteen-year period.” Id.
§ 4A1.2(e)(1); see also id. § 4A1.1, comment. (n.1).
Mr. Stepp concedes that he was a prohibited person at the time of the instant
offense, for purposes of Guidelines § 2K2.1(a)(6)(A); that his 2002 conviction qualifies
as a crime of violence; and that the applicable lookback period for his 2002 conviction
ends February 7, 2006—fifteen years prior to the date of the instant offense. See
Appellant’s Br. at 18–19. However, he argues his 2002 conviction does not fall within the
fifteen-year lookback period and thus does not count for purposes of Guidelines
§ 2K2.1(a)(4)(A). Therefore, Mr. Stepp contends his base offense level should be 14, not
20.
Ordinarily, determining whether a defendant was serving a term of incarceration
within the fifteen years before his commission of the instant offense will be a simple
matter of looking to his release date. However, because Mr. Stepp committed the
subsequent offense while in custody, he remained in the continuous custody of the state
of New Mexico between the end of his incarceration for his 2002 conviction and the
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beginning of his sentence for his 2006 conviction. Under New Mexico law, “[w]henever
an inmate in a penal institution of this state . . . is sentenced for committing any felony
while he is an inmate, the sentence imposed shall be consecutive to the sentence being
served[.]” N.M. Stat. Ann. § 31-18-21(A) (1978). While a person held in presentence
confinement is “given credit for th[at] period . . . against any sentence finally imposed for
th[e] offense,”
id. § 31-20-12, “a defendant is not entitled to double credit when
sentenced consecutively on multiple charges or in multiple cases,” State v. Cerda,
519
P.3d 87, 89 (N.M. Ct. App. 2022), cert. denied (Sept. 23, 2022).
Taken together, these rules mean that, after his period of incarceration for his 2002
conviction ended, Mr. Stepp remained in custody on presentence confinement for his
2006 conviction. That period of presentence confinement was then credited against
Mr. Stepp’s sentence for his 2006 conviction. While both parties agree Mr. Stepp’s
sentence for his 2002 conviction began on July 12, 2002; his sentence for his 2006
conviction began on March 28, 2006; and he was released from New Mexico’s custody
on December 18, 2006, they dispute when—between July 12, 2002, and March 28,
2006—Mr. Stepp’s incarceration for his 2002 conviction ended and his presentence
confinement on his 2006 conviction began.
Application
The district court’s finding, that Mr. Stepp’s term of incarceration for his 2002
sentence ended on February 16, 2006, was well supported by the record and is therefore,
not clearly erroneous. While there are apparent errors in the New Mexico Corrections
Department’s documents regarding Mr. Stepp’s 2006 conviction, the documents from his
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2002 conviction—the conviction at issue in the calculation of his base offense level—
clearly indicate his sentence of confinement for that offense ended on February 16, 2006.
See ROA Vol. I at 92 (listing discharge date of February 16, 2006). Despite the errors in
the documents related to Mr. Stepp’s 2006 conviction, this date remains constant. See id.
at 94 (starting presentence confinement credit on February 17, 2006);
id. at 97 (starting
presentence confinement credit on February 17, 2006).
Mr. Stepp contends his incarceration for his 2002 conviction ended on December
27, 2005—more than fifteen years before his commission of the instant offense on
February 7, 2021. For support, Mr. Stepp looks to the initial judgment and Good Time
Sheet for his 2006 manslaughter conviction, committed while he was incarcerated for his
2002 conviction. Mr. Stepp was sentenced for his 2006 conviction on March 28, 2006.
His initial judgment states that he “shall be given credit for ninety [days] for time served
starting on February 17, 2006[.]” ROA Vol I at 94. This was clearly an error, as there are
not ninety days between February 17 and March 28. This error was reiterated by
Mr. Stepp’s Good Time Sheet for his 2006 conviction, giving Mr. Stepp three months of
presentence credit. Mr. Stepp attributes this error to the date he began receiving
presentence credit, rather than the amount of presentence credit due, and accordingly
subtracts ninety days from the date of sentencing, March 28, 2006, and contends he
began receiving presentence confinement credit on December 28, 2005. Thus, Mr. Stepp
argues his incarceration for his 2002 conviction ended on December 27, 2005.
But, as the Government notes, the judgment for Mr. Stepp’s 2006 conviction was
later amended, removing the reference to ninety days’ presentence credit and instead
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providing that Mr. Stepp “shall be given credit for time served starting on February 17,
2006 . . . to the time of filing the judgment in this matter[.]” ROA Vol. I at 97. Although
there are errors in the initial and amended judgments for Mr. Stepp’s 2006 conviction, 8
the date of February 17, 2006, is consistently referenced as the date from which his
presentence confinement credit began to accrue. More to the point, the judgment and
Good Time Sheet for Mr. Stepp’s 2002 conviction show Mr. Stepp was sentenced to five
years’ incarceration on July 12, 2002, and had a final discharge date of February 16,
2006, after accounting for presentence confinement and good time credit. As the
Government argues, the date of February 16, 2006, is consistent across the New Mexico
Corrections Department’s documents, and is supported by Ms. Chavez’s testimony, as the
date when Mr. Stepp finished serving his custody sentence for his 2002 conviction. The
Government maintains the district court did not clearly err by crediting this evidence and
8
When it comes to the calculation of presentence confinement credit for
Mr. Stepp’s 2006 conviction, the New Mexico Corrections Department’s documentation
presents several errors: (1) the initial judgment lists the sentencing date as August 10,
2006, not March 28, 2006; (2) the initial judgment calculates ninety days’ presentence
confinement from February 17, 2006, to the date of sentencing; (3) the amended
judgment lists the sentencing date as August 18, 2006, not March 28, 2006; (4) the Good
Time Sheet attributes three months’ presentence confinement credit prior to Mr. Stepp’s
sentencing date of March 28, 2006; and (5) the Good Time Sheet attributes an additional
three months and three days’ presentence confinement credit based on the erroneous
sentencing date from the amended judgment. According to Ms. Chavez, the errors in
Mr. Stepp’s Good Time Sheet for his 2006 conviction resulted in Mr. Stepp being “given
too much credit” such that “he was probably released a little bit early.” Supp. ROA Vol. I
at 51–52. The district court noted these errors and determined “not [to] compound the
error by continuing to rely on the mistake when making its timekeeping determination[].”
ROA Vol. I at 108.
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refusing to rely on the erroneous calculation of ninety days’ presentence credit for
Mr. Stepp’s 2006 conviction. We agree.
The district court adhered to the date consistent across the Good Time Sheet for
Mr. Stepp’s 2002 conviction, the initial judgment for his 2006 conviction, and the
amended judgment for his 2006 conviction and found Mr. Stepp’s term of incarceration
for his 2002 conviction ended February 16, 2006—less than fifteen years before the
commission of the instant offense on February 7, 2021. While Mr. Stepp points to
information in the New Mexico Corrections Department’s documentation that suggests
his term of confinement for his 2002 conviction ended earlier, this contrary information
does not lead us to “a definite and firm conviction that a mistake has been made.”
Lozano, 921 F.3d at 946. There was sufficient foundation in the record for the district
court to reasonably find that, more likely than not, Mr. Stepp’s term of confinement for
his 2002 conviction ended on February 16, 2006. Thus, we conclude the district court’s
factual finding pertaining to its calculation of Mr. Stepp’s base offense level was not
clearly erroneous.
III. CONCLUSION
We AFFIRM Mr. Stepp’s conviction and sentence.
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