United States v. Leib

Decision Date18 January 2023
Docket Number21-2136
Citation57 F.4th 1122
Parties UNITED STATES of America, Plaintiff - Appellee, v. Joshua LEIB, Defendant - Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Erlinda O. Johnson, The Law Office of Erlinda O. Johnson, Albuquerque, New Mexico, for Appellant Leib.

Emil J. Kiehne, Assistant U.S. Attorney (Alexander M. M. Uballez, U.S. Attorney, with him on the brief), Albuquerque, New Mexico, for Appellee United States of America.

Before CARSON, EBEL, and ROSSMAN, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant Joshua Leib challenges the 100-month sentence he received for his conviction for being a previously convicted felon in possession of a firearm. The specific sentencing question presented by this appeal is whether the district court clearly erred in calculating Mr. Leib's advisory prison range under the sentencing guidelines by enhancing his base offense level under U.S.S.G. § 2K2.1(b)(6)(B). That guideline adds four offense levels if a defendant used a firearm in connection with another felony; here, that other felony was shooting at a dwelling in violation of New Mexico law. We conclude there was sufficient evidence for the sentencing court to find, by a preponderance of the evidence, that this enhancement applied in Mr. Leib's case. Having jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we, therefore, AFFIRM Mr. Leib's sentence.


The following facts are undisputed. On August 28, 2018, Mr. Leib, in his mid-fifties, was living with his parents in their Albuquerque home. Mr. Leib had a long and violent criminal history and ongoing problems with substance abuse and mental illness. Distraught because his father was gravely ill, Mr. Leib left the house, became intoxicated, returned to the home and went into his bedroom. Soon thereafter, Mr. Leib's mother's friend called police to report shots being fired in the Leib home. A police dispatcher called Mr. Leib's mother, Norma Leib, who reported that she had heard three gun shots in her home, her son may have shot himself, and she was hiding in another bedroom in the house.

When responding officers approached the Leib home, they saw an empty gun case and ammunition in plain view on the passenger floorboard of Mr. Leib's vehicle parked in the driveway. Norma Leib met officers in the driveway and explained that her ill husband was unconscious in his bedroom, while Mr. Leib was in his own bedroom. Although Mr. Leib had not made any suicidal or homicidal statements, Norma Leib expressed her concern that Mr. Leib "may be laying there dead for all I know." (I R. 106.) When officers outside the home were unsuccessful in getting Mr. Leib to respond, they looked into the open window in his first-floor bedroom and saw Mr. Leib passed out on the floor. Officers determined that Mr. Leib was alive but "very drunk" (id. at 107 (alteration omitted)), and that there was a firearm on the floor near Mr. Leib. Officers then entered Mr. Leib's bedroom and seized the firearm for safe-keeping, along with six spent shell casings. After an officer standing in Mr. Leib's bedroom commented that he did not see any bullet holes in the walls or ceiling, Norma Leib, who had followed the officers to Mr. Leib's bedroom, stated that Mr. Leib had shot the gun into the floor. Officers determined that Mr. Leib did not require medical attention and left. The incident was recorded by the officers’ body cameras.

Based on this incident, the State of New Mexico initially charged Mr. Leib with 1) shooting at a dwelling and 2) unlawful possession of a firearm by a felon. The State dropped those charges, however, when the United States indicted Mr. Leib on the federal offense of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Leib pled guilty to that federal offense.

In preparation for sentencing, the amended presentence report ("PSR") determined Mr. Leib's total offense level to be 27, based on the following calculations:

base offense ( U.S.S.G. § 2K2.1(a)(2) ) 24
firearm was stolen ( U.S.S.G. § 2K2.1(b)(4)(A) ) +2
Mr. Leib used or possessed the firearm in connection with another felony offense ( U.S.S.G. § 2K2.1(b)(6)(B) ) +4
acceptance of responsibility ( U.S.S.G. § 3E1.1 ) -3
total offense level 27

Mr. Leib objected to the PSR's application of the four-offense-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with another felony offense. The district court overruled that objection and determined that Mr. Leib's total offense level was 27 and his criminal history category was VI, resulting in an advisory guideline range of 130 to 162 months in prison. But because, by statute, Mr. Leib's offense of conviction was punishable by no more than ten years in prison, see 18 U.S.C. § 924(a)(2) (subsequently amended and renumbered), his guideline range became 120 months. See U.S.S.G. § 5G1.1(a). At sentencing, the district court varied downward from that range to impose a 100-month prison sentence to be followed by a three-year term of supervised release. On appeal, Mr. Leib challenges the application of the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B).


"When evaluating sentence enhancements under the Sentencing Guidelines, this Court reviews the district court's factual findings for clear error and questions of law de novo." United States v. McDonald, 43 F.4th 1090, 1095 (10th Cir. 2022). In particular, we review the application of § 2K2.1(b)(6)(B) in a given case for clear error. See United States v. Sanchez, 22 F.4th 940, 942 (10th Cir. 2022). Thus, "we will not disturb the district court's factual findings unless they have no basis in the record" and, in reviewing the record, "we view the evidence and inferences therefrom in the light most favorable to the district court's determination." United States v. Hoyle, 751 F.3d 1167, 1174 (10th Cir. 2014).


"The government has the burden of proving, by a preponderance of the evidence, that Section 2K2.1(b)(6) applies." United States v. Kitchell, 653 F.3d 1206, 1226 (10th Cir. 2011). Section § 2K2.1(b)(6)(B) adds four offense levels if a defendant convicted of unlawfully possessing a firearm "used or possessed any firearm or ammunition in connection with another felony offense." " ‘Another felony offense,’ for purposes of subsection (b)(6)(B), means any federal, state, or local offense, other than the ... firearms possession ... offense, 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).

In this case, the district court found that Mr. Leib used the firearm he unlawfully possessed in connection with the felony of shooting into a dwelling in violation of N.M. Stat. § 30-3-8(A).1 That state offense required proof that Mr. Leib "willfully" shot a firearm, targeting a building that he knew to be a dwelling. See N.M. Cr. UJI 14-340A (2014); State v. Comitz, 443 P.3d 1130, 1136 (N.M. 2019). "Willfully" under New Mexico law means "conscious or intentional conduct." State v. Coleman, 150 N.M. 622, 264 P.3d 523, 528–29 (N.M. Ct. App. 2011) (quoting State v. Varela, 128 N.M. 454, 993 P.2d 1280, 1291 (1999) ). It was not enough, then, for the Government to show that Mr. Leib discharged a gun in the home or that somehow bullets ended up in the dwelling. See Comitz, 443 P.3d at 1136–37 (overturning felony murder conviction based on the felony of shooting at a dwelling where the evidence showed only that the defendant "specifically and primarily targeted," not the dwelling, but particular individuals standing in front of a house). The Government had to show that the house was Mr. Leib's "principal target." Id. at 1137.

On appeal, Mr. Leib does not dispute that he possessed and discharged a firearm in his bedroom and that he knew that he was in a dwelling. Nor does he challenge on appeal the district court's determination that firing a gun inside a dwelling can support a conviction under N.M. Stat. § 30-3-8(A) for shooting at a dwelling.2 Mr. Leib challenges only the sufficiency of the Government's evidence to establish that he "willfully" targeted the dwelling.3

In finding that Mr. Leib willfully shot at the dwelling, the district court ruled:

I agree with several things [defense counsel] has pointed out. The neighbor reported hearing shots from the house, the defendant's mother heard the shots herself, and was concerned that her son may have shot himself.
I agree with some of things that the Government has pointed out .... It doesn't appear that there was another person who was a target of those shots and so the defendant argues that the only evidence points to himself being the target. I agree with the prosecutor's argument that ... the defendant had attempted suicide in the past and harmed himself. He didn't ... succeed in killing himself, but he did harm himself. In this case, the defendant was not harmed at all by the shooting.
The thing I find the most persuasive is the [state] criminal complaint that is attached to the defendant's objection ....
And this is the part I find persuasive. "I heard Norma [Leib] stating Josh shot three rounds into the floor, somewhere in his room."
So taking that statement, it certainly sounds to me like the Government has met its burden by a preponderance of the evidence that Josh shot three rounds into the building. The fact that he was in the house doesn't change the analysis. It wasn't just one shot that happened to be fired, it was three shots, and all three rounds were shot into the floor, somewhere in his room.
So that sounds to me like the building was the intended target, especially when you take into consideration that it wasn't just one random shot, it was actually three. So I do think that the Government has met its burden, and I will overrule the defendant's objection.

(IV R. 133–35.) The district court, thus, found that Mr. Leib willfully shot...

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