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    UNITED STATES of America, Plaintiff-Appellee, v. Emanuel GODINEZ-PEREZ, Defendant-Appellant.
    No. 15-3159
    United States Court of Appeals, Tenth Circuit.
    October 24, 2016

      Melody Brannon, Federal Public Defender, District of Kansas, Topeka, Kansas, for Defendant-Appellant.
    Carrie N. Capwell, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appel-lee.
    Before TYMKOYICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
   BRISCOE, Circuit Judge.

Defendant Emanuel Gddinez-Perez (Go-dinez) pleaded guilty to three ‘ criminal counts arising out of his role in a conspiracy to distribute and possess with intent to distribute more than 500 grams of methamphetamine. The district court sentenced Godinez to a term of imprisonment of 108 months, to be followed by a two-year term of supervised release. Godinez now appeals his sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Godinez that the district court erred in calculating his base offense level and, in turn, his advisory Guidelines sentencing range. Specifically, the court erred in failing to make particularized findings regarding relevant conduct attributable to Godinez. Consequently, we remand to the district court with directions to vacate Go-dinez’s sentence and resentence him.

I

A

In June and July of 2014, law enforcement agents from the Kansas Bureau of Investigation (KBI) and the United States Department of Homeland Security-Homeland Security Investigations (HSI) used a confidential informant (Cl) to make two controlled purchases of methamphetamine from an individual named “Manuel” in Kansas City, Kansas. Law enforcement agents ultimately determined that “Manuel” was Godinez and they .arrested him, along with Jose Menera-Alvarez and Gilbert Cano-Bahena, both of whom were involved with Godinez in the distribution of the methamphetamine. During the course of the investigation, law enforcement agents seized ten different quantities of methamphetamine, totaling approximately 1,505.26 grams. Laboratory testing revealed, that these quantities of methamphetamine ranged in purity from 96.1% to 100%. Based upon these purity figures, the net weight of the methamphetamine was estimated to be 1,479.8 grams.

B

On July 25, 2014, a criminal complaint was filed charging Godinez, Menera-Alva-rez, and Cano-Bahena with conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(A)(viii), 846, and 18 U.S.C. § 2, and possession with the intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(viii), 846, and 18 U.S.C. § 2. The complaint also alleged two separate counts of distribution solely against Godinez. On August 6, 2014, a federal grand jury returned an indictment setting forth the same four charges.

On January 22, 2015, Godinez appeared before the district court and entered a plea of guilty, without benefit of a plea agreement, to the charges against him. The district court directed the probation office to prepare a presentence investigation report (PSR).

On April 27, 2015, the probation office submitted the PSR to the district court and the parties. The PSR concluded that Godinez’s “offense involved] at least 1.5 kilograms but less than 4.5 kilograms of ‘Ice’ ” (high-grade methamphetamine), and thus assigned Godinez a base offense level of 36, pursuant to U.S.S.G. § 2D1.1. ROA, Vol. 3 at 13. The PSR in turn applied a two-level reduction pursuant to the safety-valve provision of U.S.S.G. § 2Dl.l(b)(17), as well as two-level and one-level reductions pursuant to U.S.S.G. § 3El.l(a) and (b), all of which resulted in a total offense level of 31. That total offense level, combined with the calculated criminal history category of I, resulted in an advisory Guidelines sentencing range of 108 to 135 months. Neither party filed objections to the PSR.

Godinez did, however, file a sentencing memorandum asking the district court “to sentence him to less than 60 months in the Bureau of Prisons.” Id., Vol. 1 at 36. In support of his request, Godinez argued that he was “clearly the LEAST culpable of the three” defendants in the case because the other two were suppliers and Godinez “only had direct or indirect control over 601.57 of the 1505.39 grams of methamphetamine that comprise[d] his drug quantity calculation.” Id. at 36, 38. More specifically, Godinez argued that “601.57. grams [we]re a result of actual sales by” him, and that “887.25 grams [we]re a result of the execution of a search warrant on a storage unit that did not belong to [him],” and was not “under his control.” Id. at 37.

Godinez also argued in his sentencing memorandum that “[tjhere [we]re more general reasons to consider a variance for [him].” Id. To begin with, he argued that “the methamphetamine guideline lacks empirical support,” id., and “penalize[s] methamphetamine much, much more severely than any other drug,” id. at 41. Second, Godinez argued that “the unique focus on methamphetamine purity in [§ ] 2D1.1 further undermines the goals of [18 U.S.C. § ] 3553(a).” Id at 42. “For example,” he argued, his “base offense level would have been 32 instead of 36 had the drug quantity been calculated as a mixture.” Id. And, he argued, that would have “resulted] in a sentence range of 70-87 months absent the differential calculation for drug purity.” Id. Lastly, Godinez argued that his case was treated differently than other criminal prosecutions in the District of Kansas because the probation office in his case calculated the amount at issue “as Tee’ ” even though the “actual amount [wa]s available.” Id. at 45.

On June 29, 2015, Godinez appeared before the district court for sentencing. The district court, again without objections from either party, adopted the PSR’s sentencing calculations. Defense counsel asked the district court to vary downward from the advisory Guidelines sentencing range and impose a term of imprisonment of no greater than 60 months. The district court denied Godinez’s request and sentenced him to 108 months’ imprisonment, to be. followed by a two-year term of supervised release.

Judgment was entered in the case that same day. Godinez filed a timely notice of appeal and challenges only his sentence.

II

Determination of relevant conduct— drug quantity

In his first issue, Godinez complains that “the district court made no particularized findings on the record about the relevant conduct attributable to [him] individually, but instead held him responsible for the entirety” of the methamphetamine that was seized by law enforcement officials. Aplt. Br. at 8. Because Godinez did not raise this specific argument in the district court, our review is limited to plain error under Federal Rule of Criminal Procedure 52(b). Molina-Martinez v. United States, — U.S. ——, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016). We “ha[ve] discretion to remedy a forfeited error provided certain conditions are met.” Id. The defendant must establish (1) the existence of “an error that has not been intentionally relinquished or abandoned,” (2) “the error [is] plain—that is to say, clear or obvious,” and (3) “the error \ .. ha[s] affected the defendant’s substantial rights.” Id. “Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings,” Id. (quotation marks omitted).

Godinez argues that the district court in this case was required to “make particularized findings about relevant conduct— here, the drug quantity and type—attributable to the defendant, rather than just default to the overall conspiracy.” Aplt. Br. at 10-11. Godinez further argues that “the PSR failed to offer any particularized findings about individual relevant conduct,” and the district court in turn “made no findings particular to the scope of [Godi-nez’s] agreement, either as to quantity or type of methamphetamine.” Id. at 11. And, he argues, “[t]he record does not support that [he] agreed to jointly undertake the distribution of more than 1.5 kilograms of [I]ce.” Id.

Section 1B1.3 of the United States Sentencing Guidelines, which addresses relevant conduct for purposes of sentencing, states that a defendant’s base offense,level “shall be determined on the basis of ... all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured or willfully caused by the defendant,” as well as, “in the case of a jointly undertaken criminal activity ..,, all acts and omissions of others that were .,. within the scope of the jointly undertaken criminal activity, ... in furtherance of that criminal activity, and ... reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § XB1.3(a)(l)(A) and (B). “This includes any controlled substance that was handled by another member of the conspiracy if it was ‘(A) in furtherance of the jointly undertaken criminal activity; and (B) reasonably foreseeable in connection with that criminal activity.’” United States v. Figueroa-Labrada, 720 F.3d 1258, 1265 (10th Cir. 2013) (quoting U.S.S.G. § 1B1.3, cmt. n.2).

Application Note 3(B) to § 1B1.3 states that “[b]eeause a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the ‘jointly undertaken criminal activity’ is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not nécessarily the same for every participant.” U.S.S.G. § 1B1.3, cmt, n.3(B). Application Note 3(B) further states that “[i]n order to determine the defendant’s accountability for the conduct of others under subsection (a)(1)(B), the [district] court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and" objectives embraced by the defendant’s agreement).” Id. Consistent with this Application Note, we have held that “[a] sentencing court must make particularized findings to support the attribution of a coconspirator’s actions to the defendant as relevant conduct, whether or not the defendant asks it to do so or disputes the attribution.” Figueroa-Labrada, 720 F.3d at 1264. In other words, even if the defendant does not lodge any objections to the PSR, the district court must still make these particularized findings. Id.

In this case, the district court adopted the factual findings contained in the PSR and otherwise made no independent factual findings of its own at the time of sentencing. Unfortunately, however, the factual findings contained in the PSR and adopted by the district court did not address the scope of the criminal activity that Godinez agreed to jointly undertake. Nor did the PSR’s factual findings otherwise include information specifically linking Godinez to all of the quantities of methamphetamine that were seized during the investigation. Consequently, we conclude, and government counsel essentially agreed at oral argument, that the district court erred in failing to make such findings, and that its error was plain in light of existing Tenth Circuit precedent.

The question then becomes whether the district court’s error affected Godi-nez’s substantial rights. To address this question, we begin by reviewing the allegations set forth in the charges that are encompassed by Godinez’s guilty plea. Count 1 of the indictment in this case alleged that “[b]eginning on or about June 16, 2014, and continuing until July 16, 2014,” Godinez and his two codefendants “knowingly and intentionally combined, conspired, and agreed ... to distribute and possess with intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine.” ROA, Vol. 1 at 24, Count 2 of the indictment alleged that “[o]n or about June 17, 2014,” Godinez “knowingly and intentionally distributed 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine.” Id. at 25. Count 3 of the indictment alleged that “[o]n or about July 9, 2014,” Godinez “knowingly and intentionally distributed 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine.” Id. Lastly, Count 4 alleged that “[o]n or about July 16, 2014,” Godinez and his two codefendants, “aiding and abetting each other, knowingly and intentionally possessed with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine.” Id.

In his petition to enter a plea of guilty, Godinez admitted all of these allegations. By doing so, Godinez admitted to distributing or possessing with intent to distribute 650 grams or more of methamphetamine. That amount greatly exceeds the specific amounts that he personally distributed to the Cl on June 17 and July 9, 2014 (those two transactions totaled 172.2 grams). Thus, Godinez effectively admitted that additional amounts of methamphetamine in his possession or the possession of his codefendants, totaling approximately 478 grams or more, were attributable to him. But it does not account for all of the methamphetamine that was attributed to him by the PSR and, in turn, the district court.

At the plea hearing, the district court asked government counsel to recite the factual basis for the plea. In response, government counsel discussed the specific seizures of methamphetamine that occurred during the course of the investigation of Godinez and his codefendants. These seizures, which were subsequently listed in the PSR’s factual findings, included the following:

Weight of Meth Mixture Weight of Actual Meth Date/Occurrence.
.3 grams Bag 1 - 27.79 grams 6/17/14 Controlled Buy rv --i
.9 arams Bag 2 - 28.12 grams t a
7/9/14 Controlled Buy Bag 1 - 54.85 grams 52.E grams
Bag 2 - 54.67 grams 52.9 grams
7/9/14 Storage Unit Crystals - 9.32 grams 9.3 grams
Search Bag 1 - 321.57 grams 318.2 grams
Bag 2 - 375.47 grams 374.8 grams
Bag 3-180.9 grams 180.8 grams
7/16/14 Search of Vehicle 436 grams 419.3 grams
7/16/14 Search of Apartment 16.57 grams 16.5 grams
TOTALS 1,505.26 grams 1.479.8 grams

Id., Vol. 3 at 12.

A portion of this methamphetamine was unquestionably attributable to Godinez. To begin with, the methamphetamine that was seized following the two controlled buys was attributable to Godinez because it is undisputed that he was the one who directly sold the methamphetamine to the Cl. Similarly, the 436 grams of methamphetamine that were seized from a vehicle on July 16, 2014, were attributable to Godinez because they were the result of a one-pound methamphetamine transaction that he had verbally negotiated with the Cl that day but had not yet consummated, and because the vehicle from which the methamphetamine was seized was owned by Godinez. To be sure, codefendant Cano-Bahena was actually driving the vehicle at the time the methamphetamine was seized. But the record indicates that Cano-Bahena was acting as Godinez’s supplier for that transaction. Lastly, the 16.57 grams of methamphetamine that were seized from Cano-Bahena’s apartment later that same day also are reasonably attributable to the conspiracy outlined in the indictment. More specifically, the district court could have reasonably found that Cano-Bahena, in connection with the conspiracy, directly possessed this methamphetamine with the intent to distribute it. The district court also could have reasonably found that Godinez, in turn, constructively possessed the same methamphetamine for the same purpose. Together, these amounts total 618 grams of methamphetamine mixture or 596.7 grams of actual methamphetamine.

The more difficult question concerns the 887.26 grams of methamphetamine mixture that were seized from the storage unit on July 9, 2014. The events that led to the search of the storage unit and the seizure of the methamphetamine are described as follows in the PSR:

13. On July 9, 2014, agents utilized the Cl to make a controlled purchase of four ounces of methamphetamine for $3,600 from Godinez-Perez in Kansas City, Kansas. The Cl contacted Godinez-Perez by calling cellular phone number (816) 719-XXXX. During the call, Godinez-Perez told the Cl that he was still at work and would not be able to meet with [the Cl] until around 6:80 p.m.
14. Agents were conducting surveillance at XXX Central Avenue, Kansas City, Kansas, when they observed three Hispanic males leaving the apartments and driving away- in a Chevrolet Trailblazer bearing Kansas license plate 201 XXX [and registered to Godinez]. Agents with HSI and KBI followed the Trailblazer to a gas station in Gardner, Kansas. The Hispanic males exited the Trailblazer and were observed making phone calls on their cellular phones. A few minutes later the Hispanic males were observed driving away from the gas station and were followed to the Price Chopper in Gardner, Kansas and seen parking in the parking lot. A short time later, a black Jeep Patriot bearing Kansas license plate 826 XXX was observed slowly driving past the Trailblazer. The Trailblazer was seen backing out of the parking stall and following the Jeep Patriot to an apartment complex on East Lincoln Street in Gardner, Kansas. Four Hispanic males were observed standing near the vehicles[,] which were parked in front of one of the apartments.
15. Agents checked the registration of the Jeep Patriot Kansas[,] license plate 826 XXX[,] and found it was for a 2014 Jeep Patriot registered to Sandra Patricia XXXXXXX of Gardner, Kansas.
16. A few minutes later, agents observed the Chevrolet Trailblazer and Jeep Patriot leaving the apartment complex and driving to the Central Self Storage facility located at 1702 Kansas City Road in Olathe, Kansas. Agents observed the Hispanic males entering Unit 17[D]. After being at the storage unit for several-minutes, both vehicles were observed leaving the facility.
17. Agents followed the Chevrolet Trailblazer back to Central Avenue in Kansas City, Kansasf;] the Jeep Patriot was observed heading back towards Gardner, Kansasf,] and surveillance was discontinued.
18. The Cl received a phone call from Godinez-Perez indicating that he was ready to meet at the same location as before, The Cl met with Godinez-Perez in a seafood restaurant parking lot located near 12th and Central Avenue, Kansas City, Kansas. The Cl purchased four ounces of methamphetamine from Godinez-Perez for $3,600. During the meeting Godinez-Perez quoted the Cl prices for pound and kilogram quantities of methamphetamine. A field test ... showed a presumptive positive result for the presence of methamphetamine, weighing 56.9 and 57 grams per bag.
19. Agents contacted the Olathe Police Department, which agreed to use a K-9 drug detection unit to conduct an open air sniff on the Central Self Storage Units, 1702 Kansas City Road, Olathe, Kansas. The certified K-9 alerted only on storage unit 17D after sniffing several other units in the facility.
20. A search warrant was obtained for Central Self Storage Unit 17D from Johnson County, Kansas District Court. During the search of storage unit 17D, agents seized plastic bags containing 762.03 and 217.72 grams of methamphetamine. They also seized 517.09 grams of marijuana, digital scales and packaging material.

Id., Vol. 3 at 9-10. The PSR contains no other mention of the storage unit. Thus, although the information contained in the PSR would have allowed the district court to reasonably infer that the 109.52 grams of methamphetamine distributed by Godi-nez to the Cl on July 9, 2014, originated from the storage unit, it was insufficient to allow the district court to determine who directly or constructively possessed the 887.26 grams of methamphetamine that were seized later that day by law enforce-mént officers during the search of the storage unit.

In an attempt to connect Godinez with the 887.26 grams of methamphetamine seized from the storage unit, the government notes that it was Godinez and Cano-Bahena who traveled from Kansas City, Kansas, to the storage unit on July 9, 2014, and obtained the 113.9 grams of methamphetamine that Godinez distributed to the Cl later that day. Although the government is correct on this point, the government fails to acknowledge a key fact that is set forth in the PSR. Godinez and Cano-Bahena did not drive directly from the apartment to the storage unit, but instead made three intervening stops: at a gas station where they made a series of telephone calls, then at a grocery store where they were met by a Jeep Patriot, and finally at an apartment- complex where they met with an unidentified Hispanic male who apparently had been driving the Jeep Patriot. Only after making those three stops did Godinez and Cano-Bahena drive to the storage unit, accompanied again by the unidentified Hispanic male driving the Jeep Patriot. All of which suggests that the storage unit may not have been owned, rented, or otherwise controlled by Godinez or a coconspirator, whether or not indicted. In other words, the limited evidence contained in the record on appeal is not so one-sided that the district court would have had no choice but to attribute to Godinez, as part of the conspiracy to which he pled guilty, the 887.26 grams of methamphetamine that were stored in and seized from the storage unit.

Consequently, the record, which lacks particularized findings by the district court, does not reasonably foreclose the possibility that'the 887.26 grams of methamphetamine that were stored in and seized from the storage unit were not “within the scope of the criminal activity that [Godinez] jointly undertook,” and thus were not attributable to him. Figueroa-Labrada, 720 F.3d at 1265.

We in turn conclude that Godinez’s substantial rights were impacted by the district court’s error. The PSR assigned Godi-nez a base offense level of 36, noting that U.S.S.G. § 2D1.1 “provides that an offense involving at least 1.5 kilograms but less than 4.5 kilograms of ‘Ice’ has a base offense level of 36.” ¾ Vol. 3 at 13. Had the PSR omitted from its relevant conduct determination the methamphetamine that was seized from the storage unit, Godinez’s base offense level would have been reduced to 34 (the same base offense level that would have applied had the PSR relied solely on Godinez’s admissions when he pleaded guilty). That in turn would have resulted in a total offense level of 29, and an advisory Guidelines sentencing range of 87 to 108 months, far different than the 108-to-135-month advisory Guidelines range calculated by the district court. Thus, in sum, it is apparent that the district court’s error resulted in an “erroneous, and higher, Guidelines range [that] set the wrong framework for the sentencing proceedings.” Molina-Martinez, 136 S.Ct. at 1345. Consistent with the Supreme Court’s holding in Molina-Martinez, we conclude that this is sufficient to establish “a reasonable probability of a different outcome absent the error,” Id.; see id. at 1346 (“In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.”). In other words, nothing in the record in this case indicates that the district court “based the sentence [it] selected on factors independent of the Guidelines,” and “the record is [also] silent as to what the .district court might have done had it considered the correct Guidelines range.” Id. at 1347.

We are left only with the question of whether the district court’s error seriously affects the fairness, integrity or public reputation of judicial proceedings. We have adopted a presumption that this question must be answered in the affirmative whenever a defendant has established that an unobjected-to sentencing error affects his substantial rights. See United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (“[A]n obvious misapplication of the sentencing guidelines will usually satisfy the third and fourth elements of the plain error test.”). Because Godinez has established that the district court’s error in this case affected his substantial rights, the presumption thus applies. Although we have also held that this presumption can be overcome in certain instances, we conclude that “[t]his case ... falls within the heartland of the presumption, not any exception.” Id. at 1334. The sentence imposed by the district, court—108 months— was at the very bottom of the incorrectly-calculated advisory Guidelines range, and nothing in the record indicates that the district court selected this sentence independently from the advisory Guidelines range. Further, as we have explained, the bottom of the correctly-calculated advisory Guidelines range would have been 21 months lower than the sentence that was imposed by the district court. Thus, a very real possibility exists that, absent the district court’s error, it would have imposed a substantially lower sentence.

For these reasons, we conclude that the case must be remanded to the district court with directions to vacate Godinez’s sentence and resentence him. Before doing so, however, we proceed in the interests of judicial economy to review the remaining challenges posed by Godinez on appeal.

Determination of relevant conduct—drug type

As part of his first issue, Godinez argues that the district court also erred in calculating his advisory Guidelines range on the basis of Ice, rather than on the basis of a methamphetamine mixture. In support, Godinez asserts that “he admitted and was convicted of trafficking in a mixture or substance containing a detectable amount of methamphetamine.” Aplt. Br. at 14. Nevertheless, he asserts, the district court performed its sentencing calculations on the basis of Ice.

Section 2D1.1 of the Sentencing Guidelines defines the term “Ice” as “a mixture or substance containing d methamphetamine hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1, Notes to Drug Quantity Table, n.(C). It also provides that “[i]f a mixture' of substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.” Id. Notes to Drug Quantity Table, n.(A).

The PSR in this case, and in turn the district court, properly recognized and applied these principles. In outlining Godi-nez’s offense conduct, the PSR included a table that listed the quantity (both “Net Weight of Methamphetamine Mixture” and “Net Weight/Actual Methamphetamine”) and purity of each seizure of methamphetamine that occurred during the course of the investigation. Together, the total net weight of the methamphetamine mixture was 1,505.26 grams and the net weight/actual methamphetamine,, which took into account the purity of the various quantities seized, was 1,479.8 grams. ROA, Vol. 3 at 12. The • PSR. in turn treated this total amount as Ice, explaining:

Since the methamphetamine mixture is over 80% pure, it is considered “Ice” for the purposes of the guideline. USSG § 2D1.1 Note to Drug Quantity Table (C). Note to Drug Quantity Table (A) indicates that the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level. Therefore, the defendant is accountable for 1.505 kilograms of “Ice.”

Id. Godinez did not object to this or any other portion of the PSR. Consequently, the district court adopted these findings and determination as its own. Godinez fails to establish that this was error, let alone plain error, on the part of the district court.

Denial of downward variance—empirical basis for drug-related Guidelines

Godinez also argues that the district court “relied on a demonstrably wrong premise to deny [his] request for a below-guideline variance.” Aplt. Br. at 9. We review for an abuse of' discretion a district court’s decision not to grant a downward variance. United States v. Franklin-El, 554 F.3d 903, 914 (10th Cir. 2009); United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008) (“[Wjhether any ... disparity justifies a sentencing variance in a given case raises a ... question ... of substantive reasonableness,” which we review for an abuse of discretion).

In the sentencing memorandum that he filed with the district court, Godi-nez argued that the Sentencing Commission did not use an “empirical approach in developing the Guidelines for drug-trafficking offenses,” and instead “employed the 1986 Act’s weight-driven scheme.” ROA, Vol. 1 at 41 (quoting Kimbrough v. United States, 552 U.S. 85, 96, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). Godinez in turn argued that he was entitled to a downward variance because “[t]he result of th[e] [Sentencing Commission’s] approach, unmoored from empirical evidence or careful study, [wa]s to penalize methamphetamine much, much more severely than any other drug.” Id. At the sentencing hearing, the district court stated on the record: “I think the [Guidelines are the product of empirical research and ongoing empirical study and, while not perfect, the focus on quantity and purity of drugs does speak to a number of factors that are relevant when one considers one’s relative culpability, visa-vis the culpability of defendants across the nation.” Id., Vol. 2 at 50. Godinez now argues on appeal that the district court’s statement was contrary to Kimbrough and constituted reversible error.

The government argues in response that the district court’s statement was not erroneous because this court has expressly recognized that “the Sentencing Commission based the drug quantities and conversion rates provided in § 2D1.1 on Congressional directives and appropriate reliance on experts and practitioners in the field.” Aplee. Br. at 34 (emphasis added) (quoting United States v. Kort, 440 Fed.Appx. 678, 683 (10th Cir. 2011)). But' “reliance on experts and practitioners in the field” is not necessarily empirical evidence. Instead, empirical evidence is that which is “[b]ased on, concerned with, or verifiable by observation or experience rather than theory or pure logic.” Empirical Evidence, Oxford Dictionaries Online (2016), http:// www.oxforddictionaries.com/us/definition/ american_english/empirical. Thus, in the sentencing context, empirical evidence would be that “derived from the review of ... individual sentencing decisions.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Perhaps the “experts and practitioners” that the Sentencing Commission sought guidance from themselves relied on their own review of individual sentencing decisions; but that much is not clear from our decision in Kort. Thus, contrary to the government’s assertions, our decision in Kort does not support the district court’s statements in this case.

The fact of the matter is that, in large part, “the Guidelines are ... the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.” Id.; see U.S.S.G. ch. 1, pt. Al, § 3 (discussing how the Sentencing Commission took an “an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice”). But “not all of the Guidelines are tied to this empirical evidence.” Gall, 552 U.S. at 46 n.2, 128 S.Ct. 586. “For example,” the Court noted, “the Sentencing Commission departed from the empirical approach when setting the Guidelines range for drug offenses, and' chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.” H. (citing U.S.S.G. § 1A1.1 (Nov. 2006)).

Returning to the district court’s challenged statement, it is unclear whether its reference to “the [Guidelines [being] the product of empirical research and ongoing empirical study” was intended to refer to all of the Guidelines, including § 2D1.1 and its drug quantity table, or whether, instead, it was intended as a general reference to most of the Guidelines. Thus, it is simply unclear whether the district court’s statement was erroneous or not.

Assuming, for purposes of argument, that the district court’s statement was intended to refer to all of the Guidelines and was thus erroneous, the question becomes whether that erroneous statement had any impact on the district court’s decision to deny Godinez’s request for a downward variance. The district court expressly noted at the time it made the challenged statement that it was “rejecting” Godinez’s request for a downward variance to the extent it was based on Godinez’s “arguments that pertain[ed] to the [Sentencing [G]uidelines themselves and the [GJuide-lines[’] focus on the purity of the drug.” ROA, Vol. 2 at 50. The district court explained:

[W]hile not perfect, the [Guidelines’] focus on quantity and purity of drugs does speak to a number of factors that are relevant when one considers one’s relative culpability, vis-á-vis the culpability of defendants across the nation. For example, the ■ pure—the more pure the drug, the closer to the source. The quantity of the drug, you know, is a direct reflection of the-size of the organization or at least the complexity or the opportunity that organization has to distribute large quantities of drugs.
The [Guidelines view some organization or person that is able to deal in large quantity—quantities of drugs, of course, having more significant and adverse effect on the community than one that deals in small amounts and only has access to small amounts. And as the government argued, the facts in this case illustrate that Mr. Godinez, as well as his co-defendants, were able to—to deal in sizable quantities of drugs, at least in the pound quantities, if not the kilogram quantities, and were willing to start, you know, two, four ounces of methamphetamine at a time. And the methamphetamine was almost pure, 98 percent. All of which, of course, suggests that they are players in an organization that is. a significant organization and has access to big quantities of drugs and pure quantities of drugs relatively close to the ultimate source of the methamphetamine.

Id. at 50-51. Nothing about this statement is erroneous, and Godinez does not suggest otherwise. Nor does Godinez argue that the district court abused its discretion in concluding that the amount and purity of the methamphetamine involved in this case was relevant for purposes of determining Godinez’s relative role in the conspiracy at issue.

Finally, and perhaps most importantly, we conclude that Godinez’s “lack of empirical basis” challenge to the offense levels that § 2D1.1 of the Guidelines assign to methamphetamine-related offenses does not constitute a valid basis .for a downward variance. The Fifth and Seventh Circuits “ha[ve] squarely held that district courts are not required to engage in ‘a piece-by-piece analysis of the empirical grounding behind each part of the [Sentencing [Guidelines’ and ignore those parts that do not pass empirical muster.” United States v. Malone, 828 F.3d 331, 338 (5th Cir. 2016) (quoting United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009)). “[A] rule to the contrary,” these circuits have held, “would render ‘sentencing hearings ... unmanageable, as the focus shifts from the defendant’s conduct to the “legislative” history of the [guidelines,’ ” Id. (quoting United States v. Aguilar-Huerta, 576 F.3d 365, 368 (7th Cir. 2009)). We agree with the Fifth and Seventh Circuits and adopt their reasoning on this point,

111

The case is REMANDED to the district court with directions to VACATE Godi-nez’s sentence and resentence him.

      . As we have noted, Godinez hinted at the issue in his sentencing memorandum by arguing that the 887.25 grams of methamphetamine that were seized as “a result of the execution of a search warrant on a storage unit did not belong to [him], nor [were those narcotics] under his control.” ROA, Vol. 1 at 37. Ultimately, however, Godinez failed to object to the drug quantity calculations set forth in the PSR and adopted by the district court.

      . In its appellate response brief, the government notes that the PSR contains the statement that “the defendant is accountable for 1.505 kilograms of ‘Ice.’” Aplee. Br. at 6 (quoting ROA, Vol. 3 at 12 (PSR at ¶ 31)). But this was not an independent, particularized finding. At no point does the PSR differentiate between the drugs attributable to the conspiracy as a whole and those attributable to Godi-nez individually,

      . As noted, the PSR states only that "three Hispanic males" traveled in Godinez's vehicle from Kansas City, Kansas, to the storage unit, and does not otherwise identify those individuals. let In his sentencing memorandum, however, Godinez essentially conceded that he and Cano-Bahena were two of those individuals.

      . Both in its brief and at oral argument, the government failed to identify the owner of the storage unit.


source: Caselaw Access Project

author: EBEL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Leslie CHAPMAN, Defendant-Appellant/Cross-Appellee.
    Nos. 15-2143 & 15-2173
    United States Court of Appeals, Tenth Circuit.
    Filed October 24, 2016

      Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant-Cross-Appellee.
    Dean Tuckman, Assistant United States Attorney (Damon P. Martinez, United States Attorney, and William J. Pflugrath, Assistant United States Attorney, on the briefs), Office of the United States Attorney, Albuquerque, New Mexico for Plaintiff-Appellee-Cross-Appellant.
    Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
   EBEL, Circuit Judge.

These direct criminal cross-appeals stem from a physical altercation between Defendant Leslie Chapman (“Chapman”) and his then-wife, D.V. The altercation occurred in Veterans Administration (“VA”) housing where the couple was staying while Chapman recuperated from surgery. As a result of the altercation, the United States charged Chapman, under the federal Assi-milative Crimes Act (“ACA”), 18 U.S.C. § 13, with committing the New Mexico offense of aggravated assault on a household member, and a jury convicted him of that offense.

In appeal No. 15-2143, Chapman challenges the district court’s decision to permit the Government’s expert witness, Gail Starr, a certified sexual assault nurse examiner, to testify at trial that D.V.’s conduct in scratching herself across the chest after the altercation was consistent with conduct exhibited by sexual assault and domestic abuse victims to cope with the trauma they have experienced. The Government presented Starr’s testimony to counter Chapman’s argument that D.V. scratched herself instead to fabricate evidence against him. We conclude the district court did not abuse its discretion in admitting Starr’s testimony.

In appeal No. 15-2173, the Government challenges Chapman’s sentence. Under the ACA, a federal court is to impose a punishment “like” that available under state law. Consistent with this ACA directive, the district court properly imposed the statutory maximum term of probation and maximum fine available under New Mexico law, rather than the greater terms of probation and fines available under federal law. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 8742(b), therefore, we AFFIRM Chapman’s conviction and sentence.

I. BACKGROUND

Viewed in the light most favorable to thé jury’s verdict, see United States v. Jim, 786 F.3d 802, 804-05 (10th Cir.), cert. denied, — U.S. -, 136 S.Ct. 348, 193 L.Ed.2d 249 (2015), the evidence presented at trial established the following: Chapman, now a civilian, had surgery to correct injuries to his nasal cavities suffered during his service in the Air Force. After the surgery, Chapman and D.V. stayed in VA housing in Albuquerque, New Mexico, for several days while Chapman recuperated before returning home to Abilene, Texas.

Three days after surgery, a physical altercation occurred between Chapman and D.V. Each accused the other of being the aggressor. According to Chapman, D.V. sucker-punched him with a closed -fist to his surgically repaired face, punched him in the ribs, where surgeons had removéd cartilage to implant into his nose, and then kicked him in the groin. D.V., on'the other hand, testified that Chapman refused to allow her to leave their quarters by grabbing and holding her against her will. He also hit her several times. Although D.V. stated that she took a swing at Chapman to get away from him, he ducked and she did not land the punch.

After the altercation, Chapman had a scratch on his cheek. D.V. had a broken index finger on her right hand and a small cut on her right palm, as well as bruises on her arm, back, sides, and foot. Photographs of D.V. taken by VA police officers right after the altercation revealed no scratches on her chest. But photographs taken four hours later showed obvious scratches. D.V. told .police that Chapman had inflicted those scratches.

The United States initially charged Chapman under the ACA with two state misdemeanor offenses—aggravated battery against a household member, in violation of N.M. Stat. §§ 30-3-16(B) and 31-19-1 (A), and interference with communications, in violation of N.M. Stat. §§ 30-12-1(D) and 31-19-1(A)—as well as the federal offense of possessing a firearm on VA property, in violation of 38 C.F.R. § 1.218(a)(13). The two New Mexico misdemeanor charges were offenses assimilated into the federal code because they occurred on VA property. See 18 U.S.C. § 13. The Government later dismissed the third count, and tried the remaining two assimilated charges to a jury. The jury convicted' Chapman of aggravated battery of a household member, but acquitted him of the interferende-with-communications offense. The district court determined that its sentencing options for the aggravated battery conviction were limited to those provided by state law and sentenced Chapman to the'maximum one-year term óf probation provided by New Mexico law and the state’s maximum fine of $1,000.

II. DISCUSSION

A. The district court did not abuse its discretion in admitting Nurse Starr’s expert testimony

Prior to trial, the defense pointed out to the Government that in the photos taken of D.V. right after the altercation, there were no ■ scratches on her chest, but in photos taken four hours later, there were obvious scratches. When prosecutors asked D.V. about the scratches, she stated that she must'have caused them.

Nine days before trial was set to begin, the Government notified Chapman, see Fed. R. Crim. P. 16(a)(1)(G), that it intended to offer expert testimony from Gail Starr, a certified sexual assault nurse examiner, that, in her experience, victims of sexual assault or domestic violence often injure themselves as a mechanism to cope with trauma when the victim’s usual coping mechanisms are unavailable. Chapman objected to Starr giving this testimony and asked for a Daubert hearing. The court held a hearing the next day (one week before trial was scheduled to begin); during that hearing the district court heard the Government’s proffer as to what Nurse Starr’s testimony would be (Starr herself was not available at that time).

The court then ruled that Nurse Starr could not testify about a condition called non-suicidal self-injury, because that condition applies only when an individual has self-inflicted injuries on at least five occasions during a year’s time and there was no indication that D.V. had ever previously injured herself. But the court held that Nurse Starr could testify that a single trauma could be so severe that a person could injure .herself once, as a coping mechanism to deal with that trauma. The court then granted Chapman’s request for a thirty-day continuance so that the defense could obtain its own expert to challenge or rebut Starr’s testimony. The defense obtained an expert, but did not present his testimony at trial.. Chapman renewed his objection to Starr’s testimony, both just prior to and at trial. The court overruled each of those objections.

During trial, D.V. testified that originally she thought that Chapman had scratched her chest during the altercation but acknowledged that, because the scratches were present only in the later photos, “they had to be self-inflicted.” (IV R. 480.) Nevertheless, she did not remember when or why she scratched herself. On cross-examination, D.V. admitted that when she spoke with police after the altercation, she told them Chapman had scratched her chest because “I did not know that I had caused those scratches.” (Id. 506.) Through cross-examination, the defense suggested that D.V. had scratched herself to fabricate evidence against Chapman.

Nurse Starr then testified to the following: In her experience, it was “fairly normal” for people involved in trauma or under great stress to cause injury to themselves, and not to recall having done so. (Id. 538.) The self-injury could “be a one-time deal,” “a way of coping with a lot of stress, hopelessness, depression,” “a coping mechanism, a way of calming yourself down, making yourself feel better. It’s not a healthy one.” (Id, 542.) Starr further cited and discussed articles that supported her testimony. In Starr’s opinion, D.V.’s actions in scratching herself were consistent with being a victim of domestic violence. Starr, however, further testified that, although she had seen the photographs of D.V. and read the police reports of the altercation, Starr had never met D.V., had not evaluated her, nor could Starr testify as to what actually happened between Chapman and D.V. According to Starr, there are many reasons why someone might injure herself, including using self-inflicted injuries to accuse someone falsely of domestic. violence. Starr had no idea why D.V. had scratched herself.

At the conclusion of trial, the district court, without objection from the parties, instructed the jurors:

During the trial you heard the testimony of a' government expert, who expressed opinions concerning possible reasons persons inflict injuries on themselves. In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters.
You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as-much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.

(I R. 245.)

On appeal, Chapman challenges the district court’s decision to admit Nurse Starr’s testimony on several grounds.

1. he district court did not abuse its discretion in determining that Nurse Starr’s testimony was admissible under Fed. R. Evid. 702

The district court permitted Nurse Starr to testify as an expert under Fed. R. Evid. 702. Where, as here, the district court applied the proper Rule 702 standard, we review the court’s decision to admit Nurse Starr’s expert testimony for an abuse of discretion. See United States v. Medina-Copete, 757 F.3d 1092, 1100 (10th Cir. 2014). The district court abuses its discretion if the court’s decision “is arbitrary, capricious, whimsical or manifestly unreasonable, or when we are convinced that the district court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. at 1100-01 (internal quotation marks omitted).

Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of this case.

Fed. R. Evid. 702. Rule 702 requires the district court, before admitting expert testimony, to ensure that testimony 1) has “a reliable basis in the knowledge and experience of [the expert’s] discipline,” and 2) is “relevant to the task at hand.” Daubert, 509 U.S. at 592, 597, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding Daubert’s inquiry “applies to all expert testimony”). Applying this two-part inquiry, the district court did not abuse its discretion in permitting Nurse Starr’s testimony.

a. Reliability

In determining whether proffered expert testimony is reliable, Rule 702(d) directs the district court to consider 1) whether “the testimony is based on sufficient facts or data”; 2) whether it “is the product of rehable principles and methods”; and 3) whether “the expert has reliably applied the principles and methods to the facts of this case.” Fed. R. Evid. 702(b)—(d). On appeal, Chapman asserts that Starr’s testimony was not reliable because she never met D.V., nor did Starr ever examine or evaluate her. We reject this argument. “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703 (emphasis added). “Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude.to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703.” Daubert, 509 U.S. at 592, 113 S.Ct. 2786; see United States v. Lauder, 409 F.3d 1254, 1264 & n.5 (10th Cir. 2005) (“Daubert generally does not ... regulate the underlying facts or data that an expert relies on when forming her opinion.”).

Moreover, during her testimony, Nurse Starr acknowledged that she had not personally evaluated D.V. and opined only that D.V.’s scratching herself was consistent with conduct exhibited by victims of domestic violence and sexual assault as a mechanism to cope with their stress. Nurse Starr did not testify that D.V. was a victim of domestic violence nor that that was the reason she scratched herself. Cf. United States v. Charley, 189 F.3d 1251, 1256, 1264 (10th Cir. 1999) (upholding admission of opinion of expert who had interviewed purported child victims “that the evidence is consistent or inconsistent with the victim’s allegations of . child abuse, and allowing [the expert] to inform the jury of characteristics in sexually abused children and describe the characteristics the alleged victim exhibits”) (internal quotation marks omitted).

b. Relevance

Rule 702(a) provides that expert testimony may be admissible if it “will help the trier of fact to understand the evidence or determine a fact in issue.” “This condition goes primarily to relevance.” Daubert, 509 U.S. at 591, 113 S.Ct. 2786. “‘Relevant evidence’ is defined as that which has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” Id. at 587, 113 S.Ct. 2786 (quoting Fed. R. Evid. 401). In this case, the district court did not abuse its discretion in holding that Starr’s testimony—“that victims of domestic abuse engage in self-injury as a coping mechanism and that [D.V’s] actions are consistent with this phenomenon”—-was relevant to a material question in this case: “why [D.V.] scratched herself[.]” (I R. 187.) ■

Chapman challenges the district court’s ruling, arguing that, because it is undisputed that D.V. scratched herself after the altercation, Nurse Starr’s testimony about why victims of domestic abuse might injure themselves did not bear on a material fact. But whether D.V. acted consistently with being a domestic violence victim was material to the critical question at issue at trial of whether she or Chapman was the aggressor during their altercation. Moreover, Chapman made the question of why D.V. scratched herself a material fact by arguing that D.V. had scratched herself in order to fabricate evidence against Chapman, perhaps trying to cover up that she was the aggressor instead of him. Thus, Nurse Starr’s opinion that D.V.’s conduct in scratching herself after the altercation was consistent with her being a victim of domestic violence was relevant because it bore on material facts disputed at trial.

Chapman further contends that Nurse Starr’s testimony was not relevant because the Government sought to use it to bolster D.V.’s credibility, and expert testimony regarding a witness’s credibility is not appropriate. See Charley, 189 F.3d at 1267 (“In general, expert testimony which does nothing but vouch for the credibility of another witness encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not ‘assist the trier of fact’ as required by Rule 702.”). The district court did not abuse its discretion in rejecting this argument. In permitting Nurse Starr to testify, the district court ruled that she could not testify that D.V. was telling the truth, nor that D.V. was not the aggressor, but only that D.V.’s conduct in scratching herself was consistent with that of a domestic abuse victim using self-injury as a coping mechanism. As the district court noted, such testimony did not directly bolster D.V.’s explanation of why she scratched herself because D.V. testified that “[s]he does not know why she scratched herself.” (I R. 188.)

c. Manner in which district court conducted Rule 702 analysis

Before admitting expert testimony, the district court must conduct Rule 702’s analysis and, if the opposing party raised an objection, the district court “must adequately demonstrate by specific findings on the record that it has performed its” Rule 702 gatekeeping obligations. United States v. Avitia-Guillen, 680 F.3d 1263, 1256 (10th Cir. 2012) (internal quotation marks omitted). But the manner in which the court conducts its Rule 702 analysis is left to the court’s sound discretion. See id. “Tenth Circuit case law does not mandate that a hearing be held.” United States v. Nacchio, 555 F.3d 1234, 1251, 1253-54 (10th Cir. 2009) (en banc). In this case, the trial court did conduct a hearing, but the expert was not available to testify or be cross-examined. Chapman contends that the district court abused its discretion in ruling that part of Nurse Starr’s expert testimony was admissible without having Starr available for questioning. We disagree.

The Government gave notice of its intent to present Nurse Starr’s expert testimony just a few days before trial was set to begin. Under those circumstances, the district court did not abuse its discretion in holding a hearing and relying on the Government’s proffer of what Starr’s testimony would be. Based on that proffer, the court ruled that Starr could testify, but the court did so without prejudice to Chapman later challenging her testimony again, after Chapman had more time to research Starr’s opinion and to obtain an expert witness of his own. The court further ruled that, should Nurse Starr offer testimony that differed from the Government’s pretrial proffer, the court would reconsider whether Starr could testify. Chapman never presented the court with any further information challenging the admissibility of Nurse Starr’s testimony, and Starr testified at trial consistent with the Government’s pretrial proffer of her opinion. Furthermore, Chapman has not shown how he could have better developed his Daubert challenge to Starr’s testimony if Chapman had had an earlier opportunity to question Starr, See United States v. Allen, 603 F.3d 1202, 1212 (10th Cir. 2010). We cannot conclude, therefore, that the district court abused its discretion in initially ruling that Nurse Starr could testify without hearing her testimony at the pretrial Daubert hearing.

2. The district court did not abuse its discretion in admitting Nurse Starr’s testimony under Fed. R. Evid. 403

Chapman next contends that, even if Nurse Starr’s testimony was admissible under Rule 702, the district court abused its discretion in admitting her testimony because its “probative value” was “substantially outweighed by a danger of ... unfair prejudice” or “confusing the issues,” Fed. R. Evid. 403. We disagree.

The Tenth Circuit affords district courts “considerable discretion in performing Rule 403’s balancing test.” United States v. Tenorio, 809 F.3d 1126, 1130 (10th Cir. 2015). Here, as discussed above, Starr’s testimony had significant probative value. The likelihood of Starr’s testimony confusing. the jurors was minimal. So, too, was the possibility of “unfair prejudice,” meaning “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one,” United States v. Rodella, 804 F.3d 1317, 1334 (10th Cir. 2015), petition for cert. denied, — U.S. -, 137 S.Ct. 37, 196 L.Ed.2d 26 (2016)). Further, the trial court ameliorated any unfair prejudice or confusion by instructing jurors that they were not required to accept Nurse Starr’s testimony, but should treat it as any other testimony and give it only the weight jurors thought it deserved. Furthermore, the jury acquitted Chapman of one of the two charged offenses, suggesting Starr’s testimony did not unfairly prejudice Chapman. See United States v. Leonard, 439 F.3d 648, 652 (10th Cir. 2006) (finding no unfair prejudice where jury convicted defendant on one of the charges).

3. Conclusion as to Nurse Starr’s expert testimony

For the foregoing reasons, the district court did not abuse its discretion in admitting Nurse Starr’s expert testimony.

B. The district court did not err in using state, rather than federal, law to determine the maximum term of probation and the maximum fine available

The Assimilative Crimes Act (“ACA”) provides, in pertinent part, that

[w]hoever ... is guilty ■ of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted in the jurisdiction of the State, Territory, or District in which such place is situated, by the laws therein in force at the time of such act or omission, shall be guilty of a like offense and subject to like punishment.

18 U.S.C. § 13.(emphasis added).

The purpose of the Assimilative Crimes Act is to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction. The Act fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves.-

United States v. Garcia, 893 F.2d 250, 253 (10th Cir. 1989) (internal quotation marks omitted).

At sentencing in this case, the district court ruled that the ACA required that New Mexico, rather than federal, law provided the available range of probation and fines. In light of that, the district court sentenced Chapman to what the parties represented to the court as the maximum term of probation permitted under New Mexico law—one year—even though federal law provides for up to five years’ probation for a misdemeanor, see 18 U.S.C. §§ 3559(a), 3561(c)(2). The district court also imposed the maximum available fine under state law—$1,000, see N.M. Stat. § 31-19-1(A)—even though federal law permitted a fine of up to $100,000, see 18 U.S.C. § 3571(b)(5).

1. The district court’s decision to use state law was consistent with the ACA’s language and purpose

Reviewing de novo, see United States v. Gaskell, 134 F.3d 1039, 1041 (11th Cir. 1998), we affirm the district court’s use of state law to determine Chapman’s term of probation and fine. The ACA’s language expressly requires that a federal offender receive a punishment “like” that available under state law for the same offense. See 18 U.S.C. § 13(a). In light of that, federal circuits have unanimously concluded that state statutes set the maximum and minimum range of imprisonment available - for an ACA offense. See United States v. Martinez, 274 F.3d 897, 906 & n.12 (5th Cir. 2001) (citing, e.g., Garcia, 893 F.2d at 254 (10th Cir.)). Like imprisonment, both probation and a fine are “punishments.” See United States v. Bryant, 136 S.Ct. 1954, 1962 (2016) (referring to a fine as noncustodial punishment); United States v. Knights, 534 U.S. 112, 119, 122 S.Ct 587, 151 L.Ed.2d 497 (2001) (referring to probation as punishment). See generally United States v. Mayberry, 774 F.2d 1018, 1020-21 (10th Cir. 1985) (giving “punishment” under the ACA “a broad and inclusive meaning”).

The ACA’s language does not suggest that a sentencing court should treat differing forms of punishment differently. Instead, we read the ACA to take a holistic approach, requiring federal courts to look to state law to determine' the range of different forms of punishment available when sentencing an ACA offender. Doing so serves the ACA’s purpose, “to provide a method of punishing a crime committed on government reservations in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction,” Garcia, 893 F.2d at 253 (internal quotation marks omitted). We, therefore, affirm the district court’s decision to use the probation and fine ranges provided by New Mexico law to sentence Chapman. See United States v. Harris, 27 F.3d 111, 116 (4th Cir. 1994) (applying state, rather than federal, law to determine fine available for an ACA offense).

2. 18 U.S.C. § 3551(a) does not require a different result

18 U.S.C. § 3551(a) provides, in pertinent part, that

[e]xcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute, including sections 13 [the Assimilative Crimes Act] and 1153 [addressing offenses committed in Indian country] of this title ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.

(Emphasis added.) The purposes set forth in § 3553(a)(2) include the need for a sentence

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]

The Government contends that § 3551(a) requires sentencing courts to apply federal rather than state statutes to determine an ACA offender’s probation and fine ranges. More specifically, the Government asserts: State law establishes the maximum and minimum terms of imprisonment available for an ACA offense. Based on that range of imprisonment, the federal sentencing court must then classify the offense of conviction, under 18 U.S.C. § 3559(a), as either an infraction, petty offense, misdemeanor, or felony, and determine the appropriate degree of misdemeanor or felony. The federal sentencing court must then use that federal classification to establish the available ranges for probation and fines under federal law.

There is no language in either the ACA or § 3551(a) to support the Government’s argument for such a mechanism to determine the available range of probation and fines for an ACA offender. In Garcia, this court read § 3551(a) together with the ACA to hold that state law sets the maximum and minimum terms of imprisonment, as the ACA requires, and then § 3551(a) requires the sentencing court to apply the federal sentencing guidelines to impose a sentence within the range set by state law. 893 F.2d at 253-54. But there is no directive that § 3551(a) further requires a court sentencing an ACA offender to look to federal, rather than state law, to impose a fine or probation.

B. Applying state law to set the range for probation and fines is not contrary to federal sentencing policy

A federal sentencing court will decline to apply state law to sentence an ACA offender if doing so violates federal penal policy. See United States v. Christie, 717 F.3d 1156, 1172 (10th Cir. 2013). This court has previously applied this rule—an exception to the ACA’s mandate to impose a punishment “like” that available for the same offense under state law—to sentencing provisions that conflict with explicit federal law.

[F]or example, we do not require district courts to follow state parole policies given Congress’s express abolition of parole in the federal system. See United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985). Neither may federal courts ignore eongressionally mandated sentencing guidelines in favor- of state sentencing guidelines. See Garcia, 893 F.2d at 254. And federal courts cannot impose the death penalty relying on state law when doing so would upset Congress’s judgment about when capital punishment is .-and is not warranted. See Lewis [v. United States], 523 U.S. [155,] 170, 118 S.Ct. 1135, 140 L.Ed.2d 271 [(1998)].

Christie, 717 F.3d at 1172; see also United States v. Sain, 795 F.2d 888, 890-91 (10th Cir. 1986) (holding federal court was not required to provide jury trial for ACA offense when federal law did not permit it, but state law did).

Here, on appeal, the Government vaguely suggests that the district court’s decision to look to state law to set the range for probation and fines was contrary to federal penal policy. But the Government fails to identify any such federal penal policy, and we can find none.

The Eleventh Circuit has held that, under the circumstances presented in United States v. Gaskell, “federal judges sentencing under the ACA may exceed the state statutory maximum term for a sentence of probation when necessary to effectuate the policies behind the federal probation statutes, 18 U.S.C. §§ 3561-66.” 134 F.3d at 1040. In reaching that conclusion, the Eleventh Circuit relied on cases declining to apply state parole laws to an ACA offender because those state laws contradicted the federal penal policy abolishing parole; those cases instead imposed a term of federal supervised release on ACA offenders, in lieu of parole. Id. at 1043-44.

Unlike parole, however, the federal penal system has not abolished probation. In fact, both federal and state law provides for a term of probation for Chapman’s offense, as well as the imposition of a fíne. So, unlike imposing parole contrary to the federal system’s abolition of parole, imposing probation or a fine does not directly contradict any federal penal policy, at least none that the Government identifies. In summary, we decline to follow Gaskell and hold, instead, that with the Assimilative Crimes Act, a federal sentencing court imposing a fine and probation is limited to any state limits applicable to the crime of conviction.

For these reasons, then, we affirm the district coúrt’s use' of New Mexico law to impose a term of probation and a fine because doing so was consistent with the ACA’s requirement that the punishment for a federal ACA offense be “like” the state punishment for that same offense,

III. CONCLUSION

For the foregoing reasons, we AFFIRM Chapman’s conviction and sentence.

      . On appeal, the parties agree that they incorrectly informed the district court at sentencing that the maximum term of probation provided by New Mexico law was one year when, in fact, New Mexico provided up to two years’ probation. The Government does not chal- ■ lenge that error on appeal.

      . Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . An initial question under Rule 702 is whether the proffered expert is qualified to testify on the topic, for. which her testimony is offered. See Fed. R. Evid. 702 (“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if.... ”); see also United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc). In this case, the district court determined that "Starr is qualified to testify about self-harm and self-injury, and how it arises in the context of traumatic stress and domestic abuse.” (I R. 184.) Chapman does not challenge that determination on appeal. The record indicates, among other things, that Starr had been a certified sexual assault nurse examiner for seven years, had seen over 400 patients during that time, also dealt with domestic violence while working in trauma units for ten years; and, prior to becoming a nurse, worked as a mental health tech for seven years with patients "having an acute crisis” (IV R. 526-27).

      . On appeal, Chapman also asserts, in a con-clusoiy manner, that the district court abused its discretion in permitting Nurse Starr to testify as to an ultimate issue of fact. "We need not address unsupported, conclusory arguments.” Az. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1130 (10th Cir. 2009). In any event, that argument lacks merit.

      , Rule 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

      . The previous version of § 3551(a) at issue in Garcia did not expressly refer to the ACA, as does the current version of § 3551(a), but instead applied to "a defendant who has been found guilty of an offense described in any Federal statute.” 893 F.2d at 253 (applying 18 U.S.C. § 3551(a) (1988)); see United States v. Thomas, 68 F.3d 392, 394 (10th Cir. 1995). But Congress's 1990 amendment of § 3551(a) to add an express reference to the ACA—"a defendant who has been found guilty of an offense described in any Federal statute, in-eluding sections 13 and 1153 of this title” (emphasis added)—merely clarified what we had already held in Garcia, that a federal sentencing court should apply federal sentencing guidelines to impose punishment for an ACA offense within the maximum and minimum ranges of imprisonment established by state law. See Thomas, 68 F.3d at 394; United States v. Nelson, No. 98-2102, 1998 WL 658393, at *2 n.5 (10th Cir. Sept. 15, 1998) (unpublished).

      . The analogy the Eleventh Circuit drew between parole, supervised release, and probation is not perfect. Parole, like supervised release, provides for post-incarceration supervision. But probation is often imposed instead of incarceration, and therefore is arguably more analogous to a term of imprisonment. As previously mentioned, federal circuits have unanimously concluded that state statutes set the maximum and minimum range of imprisonment available for an ACA offense. See Martinez, 274 F.3d at 906 (5th Cir.); see also Garcia, 893 F.2d at 254 (10th Cir.).


author: SEYMOUR, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel MALDONADO-PALMA, Defendant-Appellant.
    No. 15-2146
    United States Court of Appeals, Tenth Circuit.
    FILED October 25, 2016

      Caleb Kruckenberg, Assistant Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant.
    C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United States Attorney, and David N. Williams, Assistant United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
    ' Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
   SEYMOUR, Circuit Judge.

, Defendant Manuel Maldonado-Palma pled guilty to one count of illegally reentering or remaining in the United States after having been removed, excluded, or deported, in violation of 8 U.S.C. § 1326(a), (b). Before sentencing, Mr. Maldonado objected to the recommendation in the Presentence Report (PSR) that his guideline base offense level be increased to reflect that he had a prior conviction for a crime of violence. The district court overruled his objection and, calculating the guideline range to be 77-96 months, sentenced Mr. Maldonado to 77 months in prison. On appeal, Mr. Maldonado asserts the district court miscalculated the guidelines range, making his sentence procedurally unreasonable, because his prior New Mexico conviction for aggravated assault is nót a “crime ' of violence” under § 2L1.2(b)(l)(A)(ii) of the' U.S. Sentencing Guidelines Manual (U.S. Sentencing Comm’n 2014). We affirm.

I

In October 2002, Mr. Maldonado, & citizen of Mexico, was convicted in New Mexico state court of aggravated assault. He was subsequently removed from the United States. In March 2015, U.S. Border Patrol agents in New Mexico encountered Mr. Maldonado attempting to hide in the desert. He admitted that he was a citizen of Mexico and did not have authorization to enter or remain in the United States. Mr. Maldonado was taken into custody and subsequently pled guilty to a one-count Information charging him with illegal reéntry.

Under the sentencing guidelines, the base offense level for unlawfully entering or remaining in the United States is 8. U.S.S.G. § 2L1.2(a). If, however, “the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence,” then the base offense level is increased by either 12 or 16 levels, depending on whether the defendant receives any criminal history points. Id. § 2L 1.2(b)(1)(A)(ii). The probation officer preparing Mr. Maldonado’s PSR characterized his New Mexico conviction for aggravated assault as a “crime of violence” and concluded thát his base offense level should be increased by 16 levels. After adjusting downward 3 levels for acceptance of responsibility, the probation officer concluded that Mr. Maldonado’s total offense level should be 21. Mr. Maldonado objected to the 16-level enhancement, arguing that his prior conviction did not constitute a crime of violence. The district court disagreed and ruled that the 16-level enhancement was correct. Mr. Maldonado appeals his sentence, arguing that the district court erred in imposing any enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii).

II

We generally review claims that a sentence is procedurally unreasonable under the abuse of discretion standard of review. United States v. Halliday, 665 F.3d 1219, 1222 (10th Cir. 2011). However, whether Mr. Maldonado’s conviction for aggravated assault constitutes a “crime of violence” for purposes of § 2L1.2(b)(l)(A)(ii) is a question of statutory interpretation that we review de novo. United States v. Castillo, 811 F.3d 342, 345 (10th Cir. 2015). “In interpreting a guideline, we look at the language in the guideline itself, as well as the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission.” United States v. Reyes-Alfonso, 653 F.3d 1137, 1141 (10th Cir. 2011) (internal quotation marks omitted). The commentary to § 2L1.2(b)(1) defines a “crime of violence” as

any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

U.S.S.G. § 2L1.2 cmt. n.l(B)(iii) (emphasis added).

Mr. Maldonado’s conviction can thus constitute a crime of violence under either the “enumerated clause”—by matching the enumerated generic offense of aggravated assault—or the “elements clause”—by having as an element the use, attempted use, or threatened use of physical force against the person of another. Mr. Maldonado contends his conviction does not qualify as a crime of violence under either the enumerated or the elements clause of § 2L1.2.

To determine whether Mr. Maldonado’s prior New Mexico conviction qualifies as a crime of violence under the enumerated clause, we must compare the New Mexico offense of conviction to the generic offense of “aggravated assault.” See Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (analyzing similar enumerated clause in the Armed Career Criminal Act (ACCA)); United States v. Ventura-Perez, 666 F.3d 670, 673 (10th Cir. 2012) (stating that “[w]hen determining whether a prior conviction was for a crime of violence under USSG § 2L1.2, this circuit follows the same approach set forth by the Supreme Court for determining whether a prior conviction was for a violent felony under the Armed Career Criminal Act”). The elements of the New Mexico offense must be the same as or narrower than the elements of the generic offense. See Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2247, 195 L.Ed.2d 604 (2016) (discussing enumerated clause in ACCA). In comparing the two crimes, we follow the categorical approach, which requires us to “focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic [aggravated assault], while ignoring the particular facts of the case.” Id. at 2248.

New Mexico’s aggravated assault statute is a divisible statute because it sets out alternative elements for aggravated assault in three subsections. See N.M. Stat. Ann. § 30-3-2(A)-(C); State v. Armijo, 136 N.M. 723, 104 P.3d 1114, 1120 (N.M. Ct. App. 2004) (describing aggravated assault as “a compound offense that has three alternate ways of being charged”). When faced with a divisible statute, we may use the modified categorical approach, which permits us to “look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. [We] can then compare that crime, as the categorical approach commands, with the relevant generic offense.” Mathis, 136 S.Ct. at 2249 (internal citations omitted). Mr. Maldonado concedes that he:was convicted under subsection (A) of the aggravated assault statute, which proscribes “unlawfully assaulting or striking at.another with a deadly weapon,” N.M, Stat. Ann. § 30-3-2(A). See Ventura-Perez, 666 F.3d at 676 (holding defense counsel’s admissions will suffice to satisfy the modified categorical approach because “[c]ourts could not function properly if concessions by counsel cannot be relied upon”).

Mr. Maldonado contends, and the government agrees, that the New Mexico offense of aggravated assault with a deadly weapon encompasses more conduct than does the generic offense of aggravated assault, and that the New Mexico offense is not categorically a erime of violence under § 2L1.2’s enumerated clause. See Mathis, 136 S.Ct. at 2251 (holding that if the state offense “cover[s] a greater swath of conduct” than does the enumerated generic offense, enhancement based on the enumerated clause is improper). We therefore turn to the “elements clause” of § 2L1.2 to determine whether the New Mexico offense has as an element the use, attempted use, or threatened use of physical force against the person of another.

To determine whether aggravated assault with a deadly weapon in New Mexico satisfies § 2L1.2’s elements clause, we once again apply the categorical approach and examine only the elements of the offense, without regard to Mr. Maldonado’s specific conduct. United States v. Zuniga-Soto, 527 F.3d 1110, 1118 (10th Cir. 2008). Thus, we “consider only whether the statute of conviction required proof of the use, threatened use, or attempted use of physical force.” Id. at 1120. In this context, “physical force” means “violent force— that is, force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting the phrase “has as an element the use ... of physical force against the person of another” in the ACCA); see also United States v. Ramon Silva, 608 F.3d 663, 671 (10th Cir. 2010) (noting similarity of language in elements clause of ACCA and § 2L1.2 and approving use of precedents under one as guidance in interpreting the other),

Mr. Maldonado argues that aggravated assault with a deadly weapon does not require proof of the use, threatened use, or attempted use of physical force because there are multiple means of committing the element of “unlawful] assault” contained in N.M. Stat. Ann. § 30-3-2(A) and not all of them involve physical force. Mr. Maldonado points to N.M. Stat. Ann. § 30-3-1, which describes three methods of committing simple assault. In Ramon Silva, 608 F.3d at 674, we examined whether aggravated assault with a deadly weapon in New Mexico was a “violent crime” under a similar elements clause in the ACCA and concluded that it was.

Mr. Maldonado contends that Ramon Silva is not dispositive, though, because it considered only whether aggravated assault with a deadly weapon is • a violent felony when the method of committing the underlying assault is by “any unlawful act, threat or menacing conduct that causes another person to reasonably believe that he is in danger of receiving an immediate battery,” which is proscribed in.N.M. Stat. Ann. § 30-3-l(B). See Ramon Silva, 608 F.3d at 670 (“In light of Silva’s argument, we focus our analysis on ‘apprehension causing’ aggravated assault.”). Mr. Maldonado focuses instead on N.M. Stat. Ann. § 30-3-1(C), which proscribes “the use of insulting language toward another impugning his honor, delicacy or reputation.”

Mr. Maldonado contends that assaulting someone by using insulting language while possessing.a.deadly weapon would qualify as aggravated assault under N.M. Stat. Ann. § 30-3-2(A), but that it does not have as an elément the use, attempted use, or threatened use of physical force against the person of another. It follows, he argues, that the New Mexico offense of aggravated assault with a deadly weapon under N.M. Stat. Ann. § 30-3-2(A) is not categorically a crime of violence.

In focusing on the different methods of committing simple assault, Mr. Maldonado ignores the other key element of aggravate ed assault under N.M. Stat. Ann. § 30-3-2(A), namely that the assault is committed “with a deadly weapon.” We may look to state law for guidance in interpreting what proof is necessary for this element. See Zuniga-Soto, 527 F.3d at 1122. One source of guidance is New Mexico’s uniform jury instructions. See, e.g., Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004) (looking to New Mexico uniform jury instructions to determine proof necessary to find defendant guilty of being an “accessory” to second-degree murder); Frederick v. Swift Transp. Co., 616 F.3d 1074, 1080 (10th Cir. 2010) (looking to New Mexico uniform jury instructions to,determine proof necessary to find employee was acting within the scope of her employment). When adopted by the New Mexico Supreme Court, New Mexico’s uniform jury instructions are mandatory and presumptively correct. State v. Wilson, 116 N.M. 793, 867 P.2d 1175, 1177, 1178 (1994).

New Mexico has three uniform jury instructions on aggravated assault with a deadly weapon. See UJI 14-304, 305, 306 NMJtA (2000). While these instructions describe different theories of the underlying simple assault, all have as a required element that “[t]he defendant used a ... deadly weapon.” Id. (emphasis added). “It is the use of a deadly weapon that raises an assault to an aggravated assault not an intent to injure.” State v. Cruz, 86 N.M. 456, 525 P.2d 382, 384 (N.M. Ct. App. 1974) (emphasis added).

The uniform jury instructions do not define the term “use.” So “we look to the ‘ordinary, contemporary, and common’ meaning[ ] of the word[ ] used.” United States v. Romero-Hernandez, 505 F.3d 1082, 1087 (10th Cir. 2007) (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)). As the Supreme Court recently stated in Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 2278, 195 L.Ed.2d 736 (2016),

[dictionaries consistently define the noun “use” to mean the “act of employing” something. Webster’s New International Dictionary 2806 (2d ed. 1954) (“[a]ct of employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987) (“act of employing, using, or putting into service”); Black’s Law Dictionary 1541 (6th ed. 1990) (“[a]ct of employing,” “application”).

See also id. at 2283 (Thomas, J., dissenting) (“To ‘use’ something, in other words, is to employ the thing for its instrumental value, i.e., to employ the thing to accomplish a further goal.”).

“[I]n an actual use case ..., the jury must find, among other elements, that an object was actually used as a weapon and that it was capable of causing the wounds described in the statute.” State v. Nick R., 147 N.M. 182, 218 P.3d 868, 876 (2009). Mr. Maldonado is thus mistaken in his premise that insulting someone while merely possessing a deadly weapon is sufficient to constitute aggravated assault with a deadly weapon under New Mexico law. See Aplt. Br. at 2 (“[T]he New Mexico offense [of assault with a deadly weapon] fails the element-by-element test, because it can be committed by using insulting language while possessing a deadly weapon —”). Rather, the perpetrator of an aggravated assault with a deadly weapon must employ the deadly weapon in committing the assault.

New Mexico defines “deadly weapon” as “any firearm ...; or any weapon which is capable of producing death or great bodily harm ...; or any other weapons with which dangerous wounds can be inflicted.” N.M. Stat. Ann. § 30-l-12(B). Employing a weapon that is capable of producing death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the use of physical force, i.e., “force capable of causing physical pain or injury to another person,” Johnson, 559 U.S. at 140, 130 S.Ct. 1265. We therefore conclude that aggravated assault with a deadly weapon under N.M. Stat. Ann. § 30-3-2(A) is categorically a crime of violence under U.S.S.G. § 2L1.2.

The district court did not err in increasing Mr. Maldonado’s base offense level under U.S.S.G. § 2L2.1 to account for his having a prior conviction for a crime of violence. And Mr. Maldonado does not dispute the attribution of criminal history-points, which required that the increase be 16 levels. The district court therefore calculated the guidelines range properly and imposed a sentence that was procedurally reasonable.

We affirm the sentence imposed by the district court.

      . In addition to challenging the enhancement under U.S.S.G. .§ 2Ll„2(b)(l)(A)(ii), Mr. Maldonado argues that an alternative 8-level enhancement under U.S.S.G. § 2L1,‘2(b)(1)(C) ■ for an aggravated felony would also be improper. We need not reach that issue because, as we explain below, we conclude that the 16-level enhancement under § 2L1.2(b)(l)(A)(ii) was proper.

      . New Mexico’s aggravated assault statute provides:
      Aggravated assault consists of either:
      A. unlawfully assaulting or striking at another with a deadly weapon;
      B. committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner, so as to conceal identity; or
      C. willfully and intentionally assaulting another with intent to commit any felony. Whoever commits aggravated assault is guilty of a fourth degree felony.
      N.M. Stat. Ann. § 30-3-2.

      . A divisible statute is the "kind of statute [that] sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into á building or an automobile.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013).

      . In Mathis, 136 S.Ct. at 2248-50, the Supreme Court stressed the need to distinguish between alternative "elements” in a statute of conviction and alternative "means” of fulfilling a single element. We note that "unlawfully assaulting” and "striking at” another in N.M. Stat. Ann. § 30-3—2(A) are not alternative elements of aggravated assault with a deadly weapon, but simply alternative means of committing the element of assault. This conclusion is supported by the committee commentary to UJI 14-304 NMRA, which states that "the concept of ‘striking at' [is] included within the concept of ‘assault by attempted battery,’ ” which is one of the means of committing assault set forth in N.M. Stat, Ann. § 30-3-1,

      . New Mexico’s assault statute defines assault as:
      A, an attempt to commit a battery upon the person of another;
      B, any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or
      C,. the use of insulting language toward another impugning his honor, delicacy or reputation.
      N.M. Stat. Ann. § 30-3-1.

      . Whether New Mexico would prosecute someone for aggravated assault with a deadly weapon where the underlying assault is based on the use of insulting language is questionable. New Mexico has three uniform jury instructions on assault under N.M. .Stat. Ann. § 30-3-1: (1) assault by attempted battery (UJI 14-301 NMRA); (2) assault by threat or menacing conduct (UJI 14-302 NMRA); and (3) assault either by attempted battery or by threat or menacing conduct (UJI 14-303 NMRA). The committee commentary to UJI 14-301 notes that N.M. Stat. Ann. § 30-3-1 contains a third type of assault—assault by the use of insulting language—but explains that "[t]he elements of this type of assault have never been included in the UJI assault instructions, for three reasons.” UJI 14-301 NMRA committee cmt. (1998). One reason is that "the elements of this offense would not be used to support an aggravated assault; therefore, this type of assault would not be a necessarily included offense.” Id. The parties dispute whether Mr; Maldonado must show there is a realistic probability of prosecution for aggravated assault with a deadly weapon where the underlying assault is committed through the use of insulting language. We need not resolve this dispute, however, because we ultimately conclude that aggravated assault with a deadly weapon under New Mexico law involves the threatened use of physical force regardless of how the underlying assault is committed.

      . Instruction 14-304 sets out the elements of aggravated assault under a theory of attempted battery; instruction 14-305 sets out the elements under a theory of threat or menacing conduct; and instruction 14-306 sets out the elements under both theories (to be used when the evidence would support either theory).

      . Under New Mexico law, "[a] person is in possession of [an object] when, on the occasion in question, he knows what it is, he knows it is on his person or in his presence and he exercises control over it.” UJI 14-130 NMRA.

      . Mr. Maldonado asks us to follow the Sixth Circuit’s decision in United States v. Rede-Mendez, 680 F.3d 552, 560 (6th Cir. 2012), which came to the opposite conclusion. We are not persuaded by that circuit’s analysis because it did not consider the import of New Mexico’s requirement that the deadly weapon be actively employed in committing the assault.