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United States v. Robertson

United States Court of Appeals, Tenth Circuit

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JEREMIAS ROBERTSON, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico D.C. No. 1:17-CR-02573-JAP-1

          Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.

          Howard R. Thomas, Assistant United States Attorney (and John C. Anderson, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff -Appellee.

          Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

          KELLY, Circuit Judge.

         Defendant-Appellant Jeremias Robertson pled guilty to possession of a firearm and ammunition by a felon, 18 U.S.C. § 922(g)(1), and was sentenced to a term of 84 months' imprisonment followed by three years' supervised release.[1] On appeal he challenges the district court's findings that he pointed a gun at an officer, thereby resulting in a four-level enhancement for use or possession of a firearm in connection with another felony offense (aggravated assault with a deadly weapon), and a six-level enhancement for assaulting the officer in a manner creating a substantial risk of bodily injury. U.S.S.G. §§ 2K2.1(b)(6) & U.S.S.G. § 3A1.2(c)(1). He argues that (1) the district court should have required proof by clear and convincing evidence, (2) under any standard of proof, the evidence did not support the district court's findings, and (3) the district court erroneously drew a negative inference from his silence at the sentencing hearing. See Aplt. Br. at 1-3. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.


         The district court held an evidentiary hearing. In August 2017, Albuquerque Police Department officer Steven Arias responded to a 911 call reporting a man walking through the downtown part of the city "pulling out a gun" and "pointing it at people." Aplee. Br. at 1 (citing V R. Ex. W). Mr. Robertson, who matched the description given by the 911 caller, was walking in the area when the officer arrived. Id. at 2. Mr. Robertson crossed First Street and headed northeast through a dirt parking lot. Aplt. Br. at 5. Officer Arias stopped his police vehicle at the north end of First Street. Id. Spotting Mr. Robertson, Officer Arias accelerated toward him. Id. Mr. Robertson quickened his pace, crossed to the sidewalk on the east side of First Street, and passed out of Officer Arias's line of sight behind a tow truck. IV R. 21-22. Officer Arias stopped his vehicle next to the tow truck and exited. Id. The officer testified that based on the description on the 911 call and Mr. Robertson's proximity to the area, he believed there was a high likelihood that an object in Mr. Robertson's right hand was a gun. Id. at 23.

         Officer Arias rounded the tow truck and spotted Mr. Robertson, who continued to move through the parking lot while partially obscured by cars. Id. 23:24-24:1. Officer Arias crouched behind a car for cover and twice shouted "show me your hands." Id. at 24:22; see Aplt. Br. at 6. According to Officer Arias, Mr. Robertson then "kind of turned to the west looking over his left shoulder with a small caliber handgun in his right hand, and he pointed it at [Officer Arias]." IV R. 23:1-11; Aplt. Br. at 3. Officer Arias then took cover behind a sedan. IV R. 23:20-24:3.

         When Officer Arias looked back, Mr. Robertson was again "moving at a brisk pace" toward the northeast. Aplt. Br. at 4. Officer Arias testified that he repeated his commands and Mr. Robertson responded by saying something to the effect of "I didn't do anything wrong," and "don't shoot me." Id. 56:1-13. Officer Arias testified that Mr. Robertson then again pointed a gun at him over his shoulder, and the officer identified it as a gun "because of the barrel." Id. at 25:9-13. Fearing that Mr. Robertson might shoot, Officer Arias fired a single round from his service rifle toward Mr. Robertson's chest. Id. at 14-17. The bullet entered Mr. Robertson's chest under his left armpit and incapacitated him. Id. at 20-24. A handgun was later recovered near where Mr. Robertson fell to the ground. Aplt. Br. at 7.

         The district court also heard testimony from Johnny Pinson, a bystander. Mr. Pinson testified that he saw Mr. Robertson cross First Street before Officer Arias arrived. IV R. 123:20-24. According to Mr. Pinson, Mr. Robertson appeared to be listening to music at the time and did not have a gun in his hand. Id. at 123:2-10. Mr. Pinson also testified that he did not see a gun in Mr. Robertson's hands when he turned in response to Officer Arias's commands. Id. at 123:13-15. However, he later testified that "wouldn't have seen" whether Mr. Robertson had a gun in his right hand. Id. at 135:8-9.

         Mr. Robertson also presented evidence of Officer Arias's troubled disciplinary record and his "proclivity for violent confrontation." Aplt. Br. at 8. Officer Arias was removed from a Special Weapons and Tactics (SWAT) team because he fired three "bean bag" shots at a man's head. Id. He was also given a 32-hour suspension and a letter of reprimand for that incident. Id. Officer Arias received a verbal reprimand for improper use of force after he pointed his firearm at a man who had reported domestic violence involving his neighbor. Id. at 8-9. He was suspended for 40 hours and sent to anger management counseling for assaulting a police lieutenant. Id. at 9.

         The court acknowledged that it "had serious questions" about Officer Arias because of his disciplinary history. IV R. 161:23. Nevertheless, it found his testimony "supported in this case." Id. at 161:24. The court also stated the following: "I'm a little surprised that I didn't hear from the main player who would tell us that 'no, I did not point a gun at Officer Arias.' I didn't hear that testimony." Id. at 161:25-162:2.

         Counsel stated Mr. Robertson's position that he never pointed a gun at Officer Arias. Id. at 162:3-10. The district court then said: "But he ha[s]n't testified to that under oath . . . And I've heard other testimony under oath that is not countered by that." Id. The district court explained that Mr. Pinson, while an "honest person," had given testimony that did "not fit what was shown on the video" evidence. Id. at 163. The district court ultimately found that "testimony under oath, uncontradicted by direct testimony to ...

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