United States v. Robertson, 946 F.3d 1168

Defendant-appellant Jeremias Robertson pled guilty to being a felon in possession of a firearm and ammunition (18 U.S.C. § 922(g)(1)) and was sentenced (district court hearing and sentencing contested facts).
Albuquerque PD Officer Steven Arias testified that Robertson twice turned and pointed a handgun at him; Arias fired one shot that incapacitated Robertson; a handgun was recovered near where Robertson fell.
Bystander Johnny Pinson testified he did not see a gun (and later said he might not have been able to see Robertson’s right hand).
The defense introduced evidence of Officer Arias’s disciplinary history; the district court acknowledged concerns but credited Arias’s testimony and found Robertson had pointed the gun twice.
Based on those findings the district court applied U.S.S.G. § 2K2.1(b)(6) and § 3A1.2(c)(1) enhancements (resulting in a substantially higher guidelines calculation); Robertson appealed, arguing (1) heightened proof (clear and convincing) was required, (2) the facts did not support the enhancements, and (3) the court impermissibly drew an adverse inference from his silence at sentencing. The Tenth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of proof for sentencing fact that greatly increased guideline range	Government: preponderance of the evidence is the proper standard under Tenth Circuit precedent	Robertson: due process requires clear and convincing because the disputed fact doubled his guideline range	Court: preponderance applies; higher standard is foreclosed in this Circuit (affirmed)
Sufficiency / clear-error review of finding that Robertson pointed a gun and created substantial risk of bodily injury	Government: district court’s credibility determinations and the record support the findings	Robertson: evidence (bystander testimony, officer’s record) does not support findings under any standard	Court: reviewed for clear error, credited officer’s testimony despite disciplinary history; findings were supported and not clearly erroneous (affirmed)
Whether the district court impermissibly drew an adverse inference from Robertson’s silence at sentencing	Government: the court’s comments were ambiguous and do not constitute plain error	Robertson: court relied on his failure to testify, violating Mitchell (Fifth Amendment)	Court (majority): remarks ambiguous; if error existed it was not "plain" under plain-error review, so no reversible error; Judge Briscoe (concurring/dissenting) would have found plain error and remanded

United States v. Mitchell, 526 U.S. 314 (1999) (district court may not draw adverse inference from defendant’s silence at sentencing when determining facts that affect sentence)
United States v. Constantine, 263 F.3d 1122 (10th Cir. 2001) (preponderance standard for sentencing factfinding in Tenth Circuit)
United States v. Valdez, 225 F.3d 1137 (10th Cir. 2000) (Tenth Circuit precedent applying preponderance standard at sentencing)
United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (discussed proportionality of contested facts and noted but did not adopt heightened standard)
United States v. Lozano, 921 F.3d 942 (10th Cir. 2019) (standard of review: factual findings at sentencing reviewed for clear error)
United States v. Olsen, 519 F.3d 1096 (10th Cir. 2008) (preponderance standard ordinarily governs sentencing fact determinations)