                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 February 24, 2014
                                   TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 13-2066
 v.                                             (D.C. No. 12-CR-00696-JAP-1)
                                                           (D.N.M.)
 ABRAHAM SEDILLO,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.



      Defendant-Appellant Abraham Sedillo pleaded guilty to robbery and was

sentenced to 51 months’ imprisonment and three years’ supervised release. He

appeals from the sentence, challenging a firearm enhancement imposed under

U.S.S.G. § 2B3.1(b)(2)(C). The district court imposed the enhancement after

finding that Mr. Sedillo brandished a handgun during a restaurant robbery.

United States v. Sedillo, No. 1:12-cr-00696-JAP-1 (D.N.M. May 31, 2013). Mr.

Sedillo argues that the enhancement was improper as it was based on


      *
        This order and judgment is not binding precedent, except under the
doctrines of law 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.
uncorroborated hearsay. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.



                                    Background

      Mr. Sedillo pleaded guilty to a September 2011 robbery of Blake’s

Lotaburger in Moriarty, New Mexico, in violation of 18 U.S.C. § 1951 and 18

U.S.C. § 2. 1 R. 7, 9. He received a five-level sentencing enhancement under §

2B3.1(b)(2)(C). According to the presentence report, two men robbed the

restaurant, taking $300 in rolled coins kept in a plastic container called the “safe.”

2 R. 7-8. One robber, who was carrying a folding knife with an orange handle,

stayed at the front of the restaurant with a counter employee while a second

robber, later identified as Mr. Sedillo, went to the back of the restaurant where a

second employee was washing dishes. 2 R. 7-8. Mr. Sedillo grabbed the second

employee by the arm, pointed a gun at him, and took him to the front of the

restaurant, after which the two robbers soon fled. 2 R. 8. The second employee

identified Mr. Sedillo as a former employee of the restaurant. 2 R. 8. Mr. Sedillo

was described as wearing a blue bandana and black gloves and carrying a .357- or

.38-caliber revolver. 2 R. 7-8.

      In a subsequent search of the getaway car—registered to Mr. Sedillo’s

wife—police found a folding knife with an orange handle and a bag containing

about $40 worth of coins. 2 R. 8, 10. A black glove, along with drug

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paraphernalia, was discovered in a search of Mrs. Sedillo’s home. 2 R. 9. No

gun was ever recovered. 2 R. 12.

      In February, 2012, an agent with the Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF agent”) traveled to Moriarty to interview the second

employee, accompanied by an officer with the Moriarty police department. 2 R.

11. During the interview, the second employee “reported the same information as

before,” adding details about his working with Mr. Sedillo at the restaurant and

Mr. Sedillo’s knowledge of closing patterns. 2 R. 11. The ATF agent also

listened to recorded telephone conversations Mr. Sedillo had with his wife while

in custody. 2 R. 12. During one phone call, the two discussed a firearm,

bandanas, and sweatshirts that had been in the getaway vehicle but not yet found

by police. 2 R. 12.

      Several months later, the ATF agent re-interviewed the second employee by

telephone “to determine his knowledge of firearms.” 2 R. 12. During the

interview, the second employee stated that he (1) once owned a .38 caliber

revolver, (2) had been around firearms for many years, and (3) completed basic

training in the military, which furthered his knowledge of weapons. 2 R. 12. The

second employee explained that the revolver Mr. Sedillo was carrying was either

a .357- or .38-caliber but that the two guns were very similar and could be

distinguished only by further inspection. 2 R. 12. Mr. Sedillo declined to

provide his version of events, 2 R. 13, although he admitted during police

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questioning that he worked the evening shift at the restaurant, giving him direct

knowledge of closing procedures, 2 R. 6.

      Before sentencing, Mr. Sedillo filed a sentencing memorandum objecting to

the firearm enhancement on two grounds: (1) that no gun was ever recovered;

therefore, the government failed to provide evidence that an actual gun was used

in the robbery; and (2) that the enhancement required a factual finding by a jury,

which did not occur. 1 R. 12.

      The ATF agent was present at the sentencing hearing; the second employee

was not. In order to “speed this up,” the district court had the government proffer

the substance of the testimony of the ATF agent with an opportunity for the ATF

agent to agree or disagree with the proffer and add to it. 3 R. 5-8. Mr. Sedillo’s

counsel then cross-examined the ATF agent. There was no objection to this

procedure.

      According to the proffer, the ATF agent would testify that the second

employee was knowledgeable about weapons and identified Mr. Sedillo as

carrying either a .357- or .38-caliber revolver during the robbery. 3 R 6-7, 8. In

addition, the ATF agent would testify that he listened to Mr. Sedillo’s recorded

telephone conversations from jail regarding items not yet found by police,

including a gun. 3 R. 7-8. Based on this evidence, the ATF agent would testify

that he thought that the second employee’s testimony was reliable and that Mr.

Sedillo did indeed posses a weapon during the robbery. 2 R. 7.

                                        -4-
      On cross examination, the ATF agent agreed with Mr. Sedillo that (1) other

devices, such as pellet guns and BB guns, can look like handguns; (2)

misidentifications can occur in emotionally charged environments such as

robberies; and (3) a gun was never recovered. 3 R. 9-11. Mr. Sedillo made no

other objections to the presentence report, which the district court adopted. 1 3 R.

13.

      The district court found by a preponderance that the second employee was

knowledgeable about guns and identified Mr. Sedillo as brandishing a revolver in

connection with the Lotaburger robbery. 3 R. 13-14. Accordingly, the district

court applied the firearm enhancement to Mr. Sedillo’s sentencing calculation. 3

R. 14. This appeal followed.



                                     Discussion

      Factual findings supporting a sentence enhancement must be proven by a

preponderance of the evidence, and we review such findings for clear error.

United States v. Tindall, 519 F.3d 1057, 1063-64 (10th Cir. 2008).

      Mr. Sedillo acknowledges that reliable hearsay may be used in determining

a non-capital sentence. Aplt. Br. 7 (citing United States v. Bustamante, 454 F.3d

1200, 1202 (10th Cir. 2006)). However, Mr. Sedillo argues that the district court


      1
         Mr. Sedillo made an earlier objection to the presentence report that is not
relevant to this appeal. 3 R. 2-4.

                                        -5-
erred because the evidence it considered failed to provide the “minimal indicia of

reliability” required by the Sentencing Guidelines, based primarily on our holding

in United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995). Aplt. Br. 8-10. In

his reply brief, Mr. Sedillo also argues that (1) the ATF agent only talked with the

second employee over the phone, (2) the government did not provide an affidavit

by the second employee, (3) the second employee’s allegations about a firearm

are not corroborated, (4) the government cannot explain why the firearm was not

recovered, (5) the government did not provide testimony from the other

Lotaburger employee who was at the counter, (6) the robbery took only 30

seconds to complete, (7) the second employee was under incredible stress, (8) the

ATF agent conceded that a person familiar with firearms could mistakenly

identify an item made to look like a firearm as a real firearm, (9) Mr. Sedillo’s

wife denied that Mr. Sedillo owned or had access to firearms at the time of the

robbery, (10) the ATF agent interviewed the second employee almost a year after

the robbery, and finally, (11) the district court did not explain its credibility

finding. Aplt. R. Br. 2-7. We are not persuaded.

      In Fennell, we held that the unsworn testimony of a defendant’s girlfriend

used to support a sentencing enhancement lacked the required “minimal indicia of

reliability” because the probation officer who prepared the presentence report

took her testimony over the telephone and did not personally observe her

demeanor such that he could determine her veracity, and no other evidence

                                          -6-
corroborated the girlfriend’s unsworn testimony. Fennell, 65 F.3d at 813. Rather,

other evidence in the record—namely, the decision by the state to sentence the

defendant to a lesser charge—seemed to undermine the girlfriend’s testimony. Id.

      This case is readily distinguishable. Here, an experienced ATF agent—and

not merely the probation officer writing the presentence report—interviewed the

second employee twice, once in person and once over the phone, and found him to

be credible. Second, the second employee’s statements were corroborated by Mr.

Sedillo’s conversations with his wife, during which they specifically discussed

that a gun was one of the three items not yet recovered by the police. Third, the

second employee knew Mr. Sedillo, having worked with him. Finally, nothing in

the record supports a contrary conclusion. The victim’s statements were

consistent both to the ATF agent and to other police officers, and Mr. Sedillo

offered no evidence to the contrary. Thus, we conclude that the district court did

not commit clear error by relying on the hearsay statements for the firearm

enhancement. See United States v. Cook, 550 F.3d 1292, 1297 (10th Cir. 2008).

      Mr. Sedillo makes much of the fact that it was critical to cross-examine the

second victim because the gun was never found and the victim may have mistaken

a gun for a gun-like weapon. Aplt. Br. 10. But as noted, reliable hearsay is

permissible for sentencing purposes, and the district court is free to accept or

reject it. See, e.g., United States v. Beaulieu, 893 F.2d 1177, 1179-81 (10th Cir.

1990). Explicit findings as to why the district court found the ATF agent credible

                                         -7-
are not required. 2 Allied Van Lines, Inc. v. Small Bus. Admin., 667 F.2d 751,

753 (8th Cir. 1982) (“It is well established that the trial court does not need to

make specific findings on all facts but only must formulate findings on the

ultimate facts necessary to reach a decision.”); cf. Woods Constr. Co. v. Pool

Constr. Co., 314 F.2d 405, 406-07 (10th Cir. 1963).

      Mr. Sedillo also challenges whether the ATF agent who appeared before the

district court actually met with the second employee in person, Aplt. R. Br. 2;

whether the recorded jailhouse conversations mentioned a firearm, Aplt. R. Br. 4;

and whether the record provides any basis that the second employee made a

statement about the gun to anyone other than the ATF agent, Aplt. R. Br. 7.




      2
          Mr. Sedillo relies on United States v. Palmer, 248 F.3d 569, 571 (7th Cir.
2001) (holding that a district court’s finding on the quantity of crack cocaine was
clearly erroneous in part because it did not explain why a gang member’s
statements about quantity were credible). Palmer is easily distinguished in two
ways. First, in reversing the district court, the Palmer court stressed that a
sentencing court must explicitly demonstrate how it arrived at a particular drug
quantity because of the importance of quantity in sentencing—findings that the
district court failed to provide, including any explanation as to why the drug
amount offered by one gang member was credible. Id. The sentencing
enhancement in this case does not require such a calculation. Second, nothing in
Palmer stands for the proposition that a sentencing court must make a finding of
witness credibility; it merely noted that, among other things, no explanation was
provided as to why a particular witness’ statements were considered credible,
given contrary evidence in the record. Id.

                                         -8-
These issues were not raised below, and we will not address them on appeal. See

United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002).

      AFFIRMED.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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