from the United States District Court for the District of
Wyoming (D.C. No. 1:14-CR-00274-ABJ-1)
Russell Smith, Research & Writing Specialist, Office of
the Federal Public Defender, Cheyenne, Wyoming (Virginia L.
Grady, Federal Public Defender, and Veronica S. Rossman,
Assistant Federal Public Defender, Office of the Federal
Public Defender, Denver, Colorado, with him on the briefs),
J. Heimann, Assistant United States Attorney, Office of the
United States Attorney, Cheyenne, Wyoming (Christopher A.
Crofts, United States Attorney, Office of the United States
Attorney, Cheyenne, Wyoming, with him on the brief), for
HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
Martinez pleaded guilty to possessing an unregistered,
short-barrel shotgun in violation of federal law. 26 U.S.C.
§§ 5841, 5845(a), (d), 5861(d), and 5871. Under his
plea agreement, Martinez reserved the right to appeal his
sentence if the district court determined that his total
offense level was greater than 23 under the 2014 United
States Sentencing Guidelines. The district court calculated
his total offense level as 27 after applying a four-level
enhancement for using or possessing a firearm in connection
with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Key to
this enhancement was the district court's finding that
Martinez had possessed a firearm in connection with another
felony offense-a burglary of the home from which the shotgun
Martinez later possessed was stolen.
appeal, Martinez contends that the district court clearly
erred at sentencing when it considered the hearsay statements
of Eduardo Hernandez, who, in a police interview, had
admitted to committing the burglary with Martinez. Martinez
argues that Hernandez's hearsay statements lacked
sufficient indicia of reliability to support their probable
accuracy. Exercising jurisdiction under 28 U.S.C. §
1291, we affirm.
14, 2014, Arlo Palomo's home in Torrington, Wyoming was
burglarized. The burglary was extensive, lasting several
hours. A burglar even took time to eat a bowl of cereal.
Among other items stolen was a Remington 870 12-gauge
shotgun. Mr. Palomo told police that his ex-wife, June
Palomo, had bought the shotgun at a Walmart in Scottsbluff,
Nebraska. Inside the Palomo home, police found a fingerprint
left by Eduardo Hernandez.
Discovery of a Short-Barrel Shotgun
23, 2014, nine days after the burglary, agents from the
Wyoming Division of Criminal Investigation (DCI) and the U.S.
Drug Enforcement Administration executed a search warrant-one
unrelated to the Palomo burglary- on the car of
Martinez's girlfriend, Amanda Dowers. In Dowers's car
trunk, the agents found and seized a Remington 870 12-gauge
shotgun with a 17-inch barrel. A witness later told DCI that the
shotgun belonged to Martinez.
after the agents executed the search warrant, U.S. Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) Special
Agents Steve McFarland and Matthew Wright took possession of
the shotgun and began investigating Martinez. The agents ran
a trace on the shotgun's serial number and learned that
June Palomo had bought the shotgun from a Walmart in
Scottsbluff, Nebraska. Although this was consistent with Arlo
Palomo's statements to Torrington police after the
burglary, the record doesn't say whether Torrington
police had advised the ATF agents about the Palomo burglary
before the ATF agents ran the trace.
Interview with Martinez
September 26, 2014, two months after officers seized
Martinez's short-barrel shotgun, Agents McFarland and
Wright interviewed Martinez in Torrington. During the
non-custodial interview, Martinez said that he obtained the
shotgun from an unidentified white male in a field "a
couple months" before Dowers's arrest (so by his
account he would have obtained it sometime near late May
2014). R. vol. 1 at 11. Martinez also told Agents McFarland
and Wright that the barrel was already cut down when he
obtained the shotgun and that he had put the shotgun in
Dowers's car trunk the day that she was arrested.
Further, Martinez said that he had previously buried the
shotgun in the ground "because there was no need for
[him] to be messing with it unless he needed it; and he would
leave it buried until the appropriate time."
Id. (alteration in original) (quotation marks