United States of America v. Nathan R. Rollins, Jr.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN R. ROLLINS, JR.,
Defendant - Appellant.
No. 20-6166
(D.C. No. 5:20-CR-00002-HE-1)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Nathan R. Rollins, Jr., pleaded guilty to being a felon in possession of
firearms, a violation of 18 U.S.C. § 922(g)(1), and was sentenced to the statutory
maximum of 120 months’ imprisonment. Rollins appeals, arguing that: (1) the
district court procedurally erred in calculating his sentencing guidelines range;
(2) the district court violated his Fifth and Sixth Amendment rights by making factual
findings without a jury and by a preponderance of the evidence; and (3) the sentence
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 12, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 1

-- 1 of 13 --

2
was substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742, we affirm.
BACKGROUND
On December 11, 2019, Rollins was driving his black Dodge Charger on a
highway in Oklahoma when he was cut off by a brown SUV. Rollins sped up and
pulled alongside the SUV, and his front-seat passenger, Martavious Gross, rolled
down his window, gestured with his middle finger, and yelled at the SUV driver. The
SUV driver did not respond, and Rollins slowed back down. However, shortly
thereafter, Rollins accelerated and caught up again with the SUV. The SUV driver
heard a gunshot and saw Gross leaning out the window, staring at him, and holding a
gun in his right hand. The SUV driver slowed down while Rollins sped away, at
which point Gross handed the gun to his brother in the backseat to hide in the trunk.
The SUV driver called 911, and about thirty minutes later, Oklahoma State
Troopers located Rollins’s vehicle traveling 106 miles per hour in a 75-mile-per-hour
zone. They caught up with him and activated their emergency lights, and Rollins
pulled his vehicle over. The State Troopers smelled an odor of marijuana coming
from the vehicle and, upon searching the vehicle, discovered: (1) one stolen AR-15
with a fully loaded 45-round magazine; (2) one stolen .40 caliber handgun with a
fully loaded 15-round magazine; (3) one smoking pipe; (4) two black, molded,
full-face masks; and (5) a backpack containing three cellphones, clear baggies, digital
scales, marijuana, and another fully loaded 40-round magazine that fit the AR-15.
Rollins admitted to the State Troopers that he owned the backpack, and Gross
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 2

-- 2 of 13 --

3
confessed that he fired his handgun at the SUV vehicle because he was mad the SUV
cut them off and almost knocked them off the road. The SUV driver later identified
Gross as the shooter based on a booking photograph.
On January 8, 2020, a federal grand jury indicted Rollins on one count of
being a felon in possession of firearms in violation § 922(g)(1). Rollins pleaded
guilty, admitting he was a felon and that he possessed the AR-15. The United States
Probation Office then submitted a presentence investigation report (PSR). The PSR
recommended a base offense level of 22 on the grounds that Rollins (1) admitted
possessing the 40- and 45-round magazines, which were fully loaded for the AR-15;
and (2) had previously been convicted of assault and battery by strangulation, a crime
of violence. See U.S. Sentencing Guidelines Manual (USSG) § 2K2.1(a)(3)(A)(i)
and (B) (U.S. Sent’g Comm’n 2018). The PSR recommended two enhancements:
(1) two levels under § 2K2.1(b)(4)(A) because the firearm was stolen; and (2) four
levels under § 2K2.1(b)(6)(B) because Rollins either constructively possessed the
handgun that Gross used to commit a felony offense 1 or was liable for Gross’s actions
under relevant conduct principles, see USSG § 1B1.3(a)(1)(A) and (B) (U.S. Sent’g
Comm’n 2018). The PSR then recommended a three-level reduction for acceptance
of responsibility, for a total offense level of 25. See USSG § 3E1.1(a) and (b) (U.S.
Sent’g Comm’n 2018). Next, the PSR calculated a criminal history score of 8, which
established a criminal history category of IV, based on Rollins’s prior offenses and
1 See Okla. Stat. tit. 21, § 652(B) (describing the felony offense of using a
vehicle to facilitate the intentional discharge of a firearm).
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 3

-- 3 of 13 --

4
because he committed the present offense while under a criminal justice sentence for
domestic assault and battery by strangulation. Based on a total offense level of 25
and a criminal history category of IV, the PSR recommended a guideline range of 84
to 108 months’ imprisonment.
At sentencing, the government moved for an upward variance, seeking the
statutory maximum of 120 months’ imprisonment. Rollins argued for a sentence
below the guidelines range and objected to the four-level enhancement, contending
he did not constructively possess the handgun Gross used and should not be liable
under relevant conduct principles. The district court agreed he did not constructively
possess the handgun but concluded Gross’s conduct was attributable to him under
relevant conduct principles. The district court further concluded that the facts
warranted an upward variance to the statutory maximum, noting, inter alia, the
seriousness of the offense, the type of weapon Rollins possessed, his escalating
pattern of violent conduct, and the combination of his severe anger management
issues and abuse of firearms that posed a substantial risk to the public. The court
therefore sentenced Rollins to 120 months’ imprisonment. Rollins timely appealed.
DISCUSSION
I. Procedural Error
Rollins first contends the district court procedurally erred in calculating his
sentencing guidelines range. “We review the district court’s application of the
Sentencing Guidelines for abuse of discretion. In applying that standard, we review
questions of law de novo and factual findings for clear error.” United States v. Stein,
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 4

-- 4 of 13 --

5
985 F.3d 1254, 1266 (10th Cir.) (citation and internal quotation marks omitted),
petition for cert. filed (U.S. June 24, 2021) (No. 20-8458). “[W]e will not disturb the
district court’s factual findings unless they have no basis in the record, and we view
the evidence and inferences therefrom in the light most favorable to the district
court’s determination.” United States v. Hoyle, 751 F.3d 1167, 1174 (10th Cir.
2014).
Rollins contests the district court’s application of USSG § 2K2.1(b)(6)(B),
which requires a four-level enhancement “[i]f the defendant . . . used or possessed
any firearm or ammunition in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge, intent, or reason to believe
that it would be used or possessed in connection with another felony offense.” The
court found that Gross committed the felony offense under Okla. Stat. tit. 21,
§ 652(B) of using a vehicle to facilitate the intentional discharge of a firearm and that
Rollins was accountable for Gross’s acts under relevant conduct principles.
Specifically, the court held him accountable both for aiding and abetting Gross’s acts,
see USSG § 1B1.3(a)(1)(A), and because Gross’s acts “occurred during the
commission of the offense of conviction” and were “(i) within the scope of the jointly
undertaken criminal activity, (ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity,” id.
§ 1B1.3(a)(1)(B); see also id. § 1B1.3 cmt. nn.2 (“In certain cases, a defendant may
be accountable for particular conduct under more than one subsection of [§ 1B1.3].),
4(A)(i) (same).
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 5

-- 5 of 13 --

6
Rollins argues the district court erred in holding him accountable under
§ 1B1.3(a)(1)(A) and (B) because he did not share Gross’s intent to commit the
felonious conduct. He insists the district court relied on inferences that were
unreasonable and “nothing more than speculation and conjecture.” Aplt. Br. at 17.
Proof of intent may—and often must—“be based on drawing inferences from
the defendant’s actions” and other evidence. United States v. Rufai, 732 F.3d 1175,
1191-92 (10th Cir. 2013). The inferences must be reasonable, meaning they “flow[]
from logical and probabilistic reasoning,” United States v. Summers, 414 F.3d 1287,
1295 (10th Cir. 2005) (internal quotation marks omitted), and not “speculation and
conjecture that renders [them] a guess or mere possibility,” United States v. Bowen,
527 F.3d 1065, 1076 (10th Cir. 2008) (internal quotation marks omitted). Inferences
may be reasonable even if they are not required by the evidence or are not the same
inferences we would have made as the trier of fact. See United States v. Phillips,
543 F.3d 1197, 1210 (10th Cir. 2008).
The district court found that the sequence of events and the manner in which
Rollins drove his vehicle supported an inference that he shared Gross’s intent to fire
the gun and that they jointly undertook the criminal activity. Specifically, the court
noted that the incident began with “an initial . . . road rage, screaming-out-the-
window incident followed by [Rollins] dropping back” behind the brown SUV and
then accelerating at “a high rate of speed” to catch up to the brown SUV for “a
second episode,” during which point Gross fired the handgun. R. vol. 3 at 14. The
court thus found that the way Rollins drove his vehicle suggested that he knew Gross
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 6

-- 6 of 13 --

7
had a firearm and intended to discharge it after catching up to the brown SUV, “in
conscious disregard for the safety of another person or persons,” Okla. Stat. tit. 21,
§ 652(B).
Although Rollins takes a different view of the evidence, the district court’s
inferences were grounded in “logical and probabilistic reasoning” and were not
clearly erroneous. Summers, 414 F.3d at 1295. The reasonable inferences, in turn,
fully support the court’s determination that Rollins was accountable for Gross’s acts
under § 1B1.3(a)(1)(A) and (B). Accordingly, we find no procedural error or abuse
of discretion in the district court’s application of the Sentencing Guidelines.
II. Constitutional Error
Rollins next contends the district court violated his: (1) Fifth Amendment
right that a conviction be based on proof beyond a reasonable doubt by finding him
accountable for Gross’s acts under relevant conduct principles based on only a
preponderance of the evidence; and (2) Sixth Amendment right that a jury find facts
resulting in an increased sentence by holding him accountable for Gross’s conduct
and effectively “finding [he] committed an additional crime [that] was the basis for
both an increase in the advisory sentencing guideline range of imprisonment and the
upward variance.” Aplt. Opening Br. at 21. Rollins acknowledges his arguments are
foreclosed by circuit precedent but advises the court he has raised the issues to
preserve them for further review.
We agree that our precedents foreclose his arguments. See United States v.
Robertson, 946 F.3d 1168, 1171-72 (10th Cir.) (collecting cases and noting the Fifth
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 7

-- 7 of 13 --

8
Amendment does not require a higher standard of proof than a preponderance of the
evidence for contested facts at sentencing), cert. denied, 141 S. Ct. 398 (2020);
United States v. Cassius, 777 F.3d 1093, 1097-98 (10th Cir. 2015) (collecting cases
and noting the Sixth Amendment does not require a jury to find facts that result in
advisory guidelines enhancements or influence judicial discretion but do not
otherwise increase the statutory sentencing range). And “this panel cannot overturn
the decision of another panel of this court barring en banc reconsideration, a
superseding contrary Supreme Court decision, or authorization of all currently active
judges on the court.” United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.
2000) (internal quotation marks omitted). Accordingly, we find no constitutional
error in Rollins’s sentencing proceeding.
III. Substantive Reasonableness
Finally, Rollins contends that his sentence of 120 months’ imprisonment,
which was above the guidelines range of 84 to 105 months, was substantively
unreasonable and that he should have received a sentence within, if not below, the
guidelines range. “We review the substantive reasonableness of a sentence for abuse
of discretion . . . and will only overturn a sentence that is arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Lawless, 979 F.3d 849, 855
(10th Cir. 2020) (internal quotation marks omitted). “To determine the substantive
reasonableness of a sentence, we look at the totality of the circumstances.” United
States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011) (internal quotation marks
omitted). And “[w]e defer not only to a district court’s factual findings but also to its
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 8

-- 8 of 13 --

9
determinations of the weight to be afforded to such findings.” Lawless, 979 F.3d
at 855 (internal quotation marks omitted).
In explaining the basis for its sentence, the district court began by noting that
it considers the guidelines and “give[s] them some weight” but “ultimately mak[es]
[its] sentencing decision based on the statutory factors” in 18 U.S.C. § 3553(a).
R. vol. 3 at 30. As for the § 3553(a) factors, Rollins admits the district court
addressed “the nature and circumstances of the offense, his history and
characteristics, his criminal history, and the need to afford adequate deterrence.”
Aplt. Opening Br. at 27. However, he contests the court’s treatment of those factors.
With respect to the nature and circumstances of the offense, the court found
that Rollins’s “possession of an AR-15” was “a more serious matter” with a “greater
potential for abuse” than “possession of a handgun or a shotgun.” R. vol. 3 at 30-31.
The court also found that “the possession of this weapon [w]as part of a broader
course of conduct that is of considerable seriousness.” Id. at 31. In particular, the
court addressed: (1) the drive-by shooting, discrediting Rollins’s claim that he did
not know Gross had a gun; and (2) the other illegal activity suggested by several of
the items found in Rollins’s vehicle, including full-face masks and digital scales.
Rollins argues the district court erred in considering the type of gun he possessed and
the fact that he facilitated a drive-by shooting as aggravating circumstances on the
ground that his offense level was increased as a result of these facts. But the court
was permitted to do just that. See United States v. Barnes, 890 F.3d 910, 921
(10th Cir. 2018) (noting “district courts have broad discretion to consider particular
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 9

-- 9 of 13 --

10
facts in fashioning a sentence under 18 U.S.C. § 3553(a), even when those facts are
already accounted for in the advisory guideline range” (brackets and internal
quotation marks omitted)).
With respect to Rollins’s history and characteristics, the court first found he
has “a significant criminal history,” with many prior offenses “involving violent
conduct” and some involving “abuse of a firearm.” R. vol. 3 at 31. The court also
noted “an escalating pattern” of violent conduct connected to his anger management
issues. Id. at 35. Rollins disputes that characterization, stating his mere presence
when Gross “decided to act out in the spur of the moment does not suggest he was on
course to continue to engage in more and increasingly violent incidents.” Aplt.
Opening Br. at 28. But as we held above, the court’s finding that Rollins aided and
abetted Gross’s firing of the handgun or that they jointly undertook the criminal
activity was supported by reasonable inferences and not clearly erroneous. Rollins
also attempts to minimize his violent past by insisting it “was based primarily on a
volatile relationship with a single individual.” Id. However, as the district court
observed, the fact that several convictions related to “a contentious relationship . . .
doesn’t justify criminal conduct in terms of trying to resolve it.” R. vol. 3 at 32.
Moreover, Rollins’s violent conduct plainly was not limited to that relationship. See,
e.g., R. vol. 2 at 9-10 (describing an incident in which he resisted an officer and had
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 10

-- 10 of 13 --

11
to be physically restrained); id. at 11-12 (describing an incident in which he fired a
shotgun in the air after his friend got into a verbal altercation with another person). 2
Rollins’s history and characteristics also included mitigating circumstances,
such as a “lack of guidance as a youth and the effects of childhood neglect on his
behavior and actions in the instant case.” Aplt. Opening Br. at 29. He contends the
district court failed to adequately consider these circumstances. Rollins cites no
authority in support and presents this argument in a “conclusory and perfunctory”
fashion. United States v. Walker, 918 F.3d 1134, 1153 (10th Cir. 2019) (noting such
arguments may be deemed waived). In any event, the district court specifically
recognized Rollins’s mitigating circumstances. See R. vol. 3 at 32-33 (noting that his
“anger issues . . . very likely are related to [his] generally crappy childhood,” that he
“certainly” did not “get appropriate guidance as a youth,” that “[s]ome of the abuse”
he witnessed or suffered “has certainly . . . contributed to how he reacts to others”).
The court simply found such circumstances did not warrant a lower sentence. See id.
at 33 (noting his childhood “makes his conduct perhaps more understandable” but
“doesn’t justify it”). To the extent Rollins suggests the court should have given
greater weight to his mitigating circumstances, “reweighing the factors is beyond the
ambit of our review.” Lawless, 979 F.3d at 856.
2 The PSR also lists a conviction for assault and battery that occurred when
Rollins was 21 years old. Although the PSR notes that no details of the offense were
available, the incident pre-dates Rollins’s violent conduct related “to relationship
issues,” which he asserted began “[a]t age 23.” R. vol. 1 at 14.
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 11

-- 11 of 13 --

12
The district court next addressed the need for a sentence that afforded adequate
deterrence and protected the public, particularly in light of Rollins’s “history of
violence . . . and what appears to be a pattern of it getting more serious as time has
gone on.” R. vol. 3 at 34. The court noted that previous incarceration “obviously
didn’t dissuade [Rollins] from continuing” down a violent path. Id. And the court
found “particularly troubling” his “very explicit and repeated threats to kill the police
who were arresting him” for trespass, which occurred less than a year before the
incidents underlying the present case. Id. at 35. Although Rollins notes he was not
charged with threatening the officers, he fails to explain how the lack of a separate
charge has any bearing on the district court’s finding that those threats indicate “an
anger management problem which is so severe that[,] against the backdrop of the
history of abuse of firearms, . . . translates into a very substantial risk to the public
from having [Rollins] on the streets.” Id.
Finally, Rollins contends the district court erred in “not offer[ing] any insight
as to why the advisory guideline range was inadequate.” Aplt. Opening Br. 27. But
Rollins appears to answer his own question: “The district court relied primarily on
the nature and circumstances of the offense and Mr. Rollins[’s] criminal history as to
why a sentence outside the advisory range was warranted.” Id. Moreover, he
appears to argue that the district court should have treated the guidelines as
presumptively reasonable, rendering the court’s upward variance presumptively
unreasonable. Our case law squarely forecloses that contention. See United States v.
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 12

-- 12 of 13 --

13
Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019) (“[W]e do not apply a presumption of
unreasonableness to sentences outside the guidelines range.”).
Ultimately, the record confirms the district court “thoroughly weighed each of
the[] § 3553(a) factors, reached a logical conclusion, and detailed its reasoning.”
Lawless, 979 F.3d at 856. Rollins has failed to show his sentence was substantively
unreasonable, and we find no abuse of discretion by the district court.
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
Appellate Case: 20-6166 Document: 010110560714 Date Filed: 08/12/2021 Page: 13

-- 13 of 13 --