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