United States v. Leib.

No. 21-2136. 1/18/2023. D.N.M. Judge Ebel. US Sentencing Guidelines—Four-Level Enhancement for State Law Offense—Hearsay—Sufficiency of Evidence.

January 18, 2023

Leib’s mother reported to police that she had heard three gunshots in her house, her son may have shot himself, and she was hiding in another bedroom in the home. Through a window in the home, officers observed that Leib was very drunk and passed out on the floor of his bedroom. Officers entered Leib’s bedroom, and after one officer commented that he did not see bullet holes in the walls or ceiling, Leib’s mother, who had followed the officers into the room, stated that Leib had shot the gun into the floor. Leib pleaded guilty to being a previously convicted felon in possession of a firearm. He objected to the presentence report’s application of a four-offense-level enhancement under US Sentencing Guideline § 2K2.1(b)(6)(B) for using a firearm in connection with another state felony offense, shooting into a dwelling. The district court overruled the objection, varied downward because the offense of conviction was punishable by no more than 10 years in prison, and imposed a 100-month prison sentence to be followed by a three-year term of supervised release.

On appeal, Leib argued that the government’s evidence was insufficient to establish that he “willfully” targeted the dwelling. He maintained that the district court erred in relying on his mother’s statement that he shot into the floor because it was unreliable hearsay. A sentencing court can rely on hearsay at sentencing if it is reliable. The offense of shooting into a dwelling required proof that Leib “willfully” shot a firearm, targeting a building that he knew to be a dwelling. Here, although the mother’s statement that Leib shot into the floor was unsworn, it was observed by the three responding police officers and by the affiant officer who reviewed the body camera audio and video recording. Further, the totality of the circumstances corroborated his mother’s statement that Leib shot into the floor. In addition, no evidence supports defense counsel’s assertion that Leib must have been trying to kill himself, so he, rather than the house, was the likely target of the shots. Accordingly, sufficient evidence supported the sentence.

The sentence was affirmed.