USA v. Tyler

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	No. 1:25-cr-03724-KWR
TERROLD TYLER,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant Terrold Tyler’s objections to the
Presentence Report (“PSR”) (Doc. 34). Defendant argues that (1) the PSR improperly enhances
his sentence for lack of a serial on his homemade firearm, (2) the record does not support that there
was another felony offense, (3) the PSR incorrectly describes the offense conduct because the
Government has not met its burden of proving that there was a “shooting” and “victim,” and (4)
the Government has not proven the existence of the 2015 misdemeanor calculated in Defendant’s
criminal history.
The Court held a sentencing hearing on December 17, 2025, to consider exhibits and
arguments from the parties. At this hearing, the Court reserved its ruling on Defendant’s
objections. After reviewing the parties’ arguments, exhibits, testimony, and the applicable law, the
Court OVERRULES Defendant’s objections.
BACKGROUND
On September 16, 2025, Defendant Terrold Tyler pled guilty to one count of felon in
possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(2), 924. Doc. 28 (Plea
Agreement).
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The PSR objections stem from an incident that occurred between Defendant and D.B.,
another adult male. According to the PSR, on April 29, 2025, Navajo Nation Police Department
officers were dispatched to a grocery store after a security guard called to report that someone had
been shot in the hand. Doc. 36 ¶ 14. When the officers arrived on scene, an officer noticed
Defendant—who matched the description of the reported shooter—turn away from them, walk
away, and drop a backpack. Id. ¶ 15. Officers made contact with D.B., who told them that
Defendant had shot him with a shotgun after they had been arguing. Id. ¶ 16. D.B. described the
shooting and showed them his hand, which had a small wound and some dried blood. Id. Although
he initially assisted in the investigation, D.B. wouldn’t cooperate with medical personnel,
eventually stated that he didn’t cooperate with police, and walked away from the scene. Id. ¶ 17.
Officers located Defendant and the backpack. Id. ¶¶ 15, 18. Inside the backpack, officers found a
homemade pipe shotgun, five live 20-gauge shotgun shells, two rounds of .22 caliber ammunition,
and other items. Id. ¶ 15. Defendant denied ownership of the backpack, knowledge of the firearm,
and ownership of any firearms. Id. ¶¶ 18–19.
Defendant was charged with felon in possession of ammunition, under 18 U.S.C. §§
922(g)(1), 924. 	Doc. 28 at 3. 	On September 16, 2025, he pled guilty. 	Id. at 1. In his plea
agreement, Defendant admitted to ammunition possession and a prior felony conviction. Id. at 4.
Defendant also admitted to knowing it was illegal to possess ammunition, and that the ammunition
was not manufactured in New Mexico. Id. at 4–5.
Based on Defendant’s guilty plea and evidence uncovered during discovery, the U.S.
Probation Office (“USPO”) applied a base offense level of 14. Doc. 36 ¶ 27. As relevant here,
the USPO applied a four-level enhancement under § 2K2.1(b)(4)(B)(ii) because Defendant knew
or should have known that the firearm lacked a serial number, and a four-level enhancement under
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§ 2K2.1(b)(7) for possessing a firearm or ammunition in connection with another felony offense.
Id. ¶¶ 28–29. Defendant’s criminal history was computed at four for prior convictions, including
a 2015 state conviction for battery. Id. at 8–10.
On December 3, 2025, Defendant filed five objections to the PSR. Doc. 34. The
Government filed its response, rejecting four of Defendant’s objections. 	Doc. 37 at 3–4. 	The
Probation Office responded in the PSR addendum, respectfully rejecting the same objections. Doc.
33 at 2. And the Government lodged exhibits to support its response. Doc. 41; Doc. 42.
On December 17, 2025, the Court heard arguments on Defendant’s objections to the PSR
and the factual basis for the offense conduct described in the PSR. Doc. 44, 5:9–13 (Clerk’s
Minutes); Doc. 45 (Hearing Transcript). During the hearing, the Court received testimony from
SA Andrew Wright, SA Michael Mostaghni, and Gary Ainsworth and took the matter under
advisement.
LEGAL STANDARD
A sentence must be procedurally and substantively reasonable. United States v. Haley, 529
F.3d 1308, 1311 (10th Cir. 2008). “A sentence is procedurally unreasonable if the district court
incorrectly calculates or fails to calculate the Guidelines sentence, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous facts, or inadequately
explains the sentence.” Id. (citing Gall v. United States, 552 U.S. 38, 50–51 (2007)). Procedural
reasonableness also requires that the district court “afford the defendant his rights under the Federal
Rules of Criminal Procedure.” United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir.
2008) (quoting United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007)) (citation modified).
When any portion of the PSR is disputed, a sentencing court’s fact-finding obligation is
triggered, and the Court must either “rule on the dispute” or “determine that a ruling is
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unnecessary.” Fed. R. Crim. P. 32(i)(3)(B); United States v. Chee, 514 F.3d 1106, 1114–15 (10th
Cir. 2008). 	A ruling is unnecessary “either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). “[A]
defendant does not ‘dispute’ a PSR’s recitation of facts underlying his arrests unless he presents
‘information to cast doubt on’ the facts.” United States v. Warren, 737 F.3d 1278, 1285–86 (10th
Cir. 2013) (citing United States v. Yates, 22 F.3d 981, 989 (10th Cir. 1994)). 	“If a PSR is not
disputed in this fashion, it is well established that a district court is free to rely on the PSR at
sentencing.” Warren, 737 F.3d at 1286; see also United States v. Tindall, 519 F.3d 1057, 1064
(10th Cir. 2008).
The government must prove any findings necessary to support an enhancement by a
preponderance. United States v. Munoz Tello, 531 F.3d 1174, 1181 n.12 (10th Cir. 2008) (citing
Tindall, 519 F.3d at 1063. The government must prove disputed facts by a preponderance of the
evidence. See Tindall, 519 F.3d at 1063. 	“The district court may base its findings of fact
at sentencing on evidence presented at trial, undisputed statements in the PSR, and evidence
presented at the sentence hearing.” United States v. White, 663 F.3d 1207, 1216 (11th Cir. 2011).
DISCUSSION
Four of Defendant’s objections are disputed.1 Defendant argues that: (1) the PSR
improperly enhances his sentence for lack of a serial on his homemade firearm, (2) the record does
not demonstrate that there was “another felony offense” to support an enhancement, (3) the PSR
incorrectly describes the offense conduct because the Government has not met its burden of
proving that there was a “shooting” and “victim,” (4) and the Government has not proven the
1 In Defendant’s fifth objection, he argued that he should only receive one criminal history point,
not two points, for a dismissed parole violation. Doc. 34 at 7. The Government and USPO agreed,
and the PSR reflects the now-resolved objection. Doc. 38 at 3; Doc. 36 ¶ 43.
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existence of the 2015 misdemeanor calculated in Defendant’s criminal history. Doc. 34 at 1–6.
The Court will address each PSR objection in turn.
I. 	Objection 1 is overruled.
First, the parties disagree over whether Defendant should receive a four-level enhancement
for possession of a firearm without a serial number under§ 2K2.1(b)(4)(B)(ii). This disagreement
raises issues of first impression.
The firearm is “a homemade pipe shotgun, consisting of metal pipes put together, which
was never required under federal law to bear a serial number.” Doc. 34 at 1–2; see also Doc. 35
at 4–5. Also known as a “slam-fire gun,” a user operates the firearm by placing a round of
ammunition between the two pipes, with one pipe designed to slide over the other, and then
slamming the pipes together. Tr. 8:19–23. The parties do not dispute that the homemade firearm
lacked a serial number and that Defendant knew of its absence. Rather, they argue about how the
Court should interpret and apply § 2K2.1(b)(4)(B)(ii). Doc. 38 at 1; Doc. 35 at 5.
Defendant has made several written and oral arguments in Objection 1. He contends that
an enhancement under § 2K2.1(b)(4)(B)(ii) does not apply because (1) the enhancement does not
include privately made firearms that do not require serial numbers by law, (2) the Government has
failed to prove that Defendant did not know that the firearm was required to have a serial number,
and (3) the Government has not met its burden of proving that the firearm was manufactured after
the effective date of the Gun Control Act of 1986 (“GCA”). 	The Government contends that
applying 	the 	enhancement 	to 	the 	firearm 	is 	consistent 	with the 	text 	and 	purpose 	of 	§
2K2.1(b)(4)(B)(ii) and that the conduct at issue (owning a firearm without a serial number) does
not have to be illegal for an enhancement to apply. Doc. 35 at 5. For the reasons discussed below,
the Court agrees with the Government’s arguments.
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The Court must “interpret the Sentencing Guidelines as though they were a statute or court
rule, with ordinary rules of statutory construction.” United States v. Holbert, 285 F.3d 1257, 1260
(10th Cir. 2002) (citing United States v. Tagore, 158 F.3d 1124, 1128 (10th Cir. 1998)); see also
United States v. Thomas, 939 F.3d 1121, 1123 (10th Cir. 2019). Further, the Court “must interpret
and apply the sentencing guidelines in a manner consistent with the Sentencing Commission’s
intent.” United States v. O’Flanagan, 339 F.3d 1229, 1235 (10th Cir. 2003) (citing Holbert, 285
F.3d at 1259). To discern intent, the Court looks “not only to the language in the guideline itself,
but also to the Sentencing Commission’s interpretive and explanatory commentary to the
guideline.” United States v. Sweargin, 935 F.3d 1116, 1121 (10th Cir. 2019). And if the language
is unambiguous, it must be followed “except in the most extraordinary situation where [it] leads
to an absurd result contrary to clear legislative intent.” Holbert, 285 F.3d at 1260 (quoting Tagore,
158 F.3d at 1128).
Here, the enhancement applies if “the defendant knew that any firearm involved in the
offense was not otherwise marked with a serial number (other than a firearm manufactured prior
to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously
avoided knowledge of such fact.” § 2K2.1(b)(4)(B)(ii). Defendant’s arguments depend on the
function and meaning of the text appearing in the parenthetical.
Parenthetical text in statutes and the Guidelines can serve different purposes. See, e.g.,
Chickasaw Nation v. United States, 534 U.S. 84, 90 (2001) (example), United States v. Dowell,
430 F.3d 1100, 1111–12 (10th Cir. 2005) (descriptive reference), Thomas, 939 F.3d at 1127–28
(scope expansion). And courts should treat a parenthetical as substantive unless doing so would
conflict with the unambiguous meaning of the text. Thomas, 939 F.3d at 1126–27 (discussing
Chickasaw Nation, 534 U.S. 84). In § 2K2.1(b)(4)(B)(ii), “other than a firearm manufactured prior
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to the effective date of the Gun Control Act of 1968” is offset as a parenthetical. Looking to the
ordinary meaning of the language, “other than” means “besides, except, apart from.” Other Than,
Oxford 	English 	Dictionary, 	https://www.oed.com/dictionary/other_adj?
tab=meaning_and_use#33046060 [https://perma.cc/5EWB-WRPX]. Accordingly, as the parties
do not dispute, the parenthetical serves as an exception to “any firearm involved in the offense was
not otherwise marked with a serial number,” which immediately precedes the parenthetical. The
use of a parenthetical, rather than a comma, is likely to improve readability. See Thomas, 939 F.3d
at 1127. And it visually indicates that the exception applies to the closest antecedent. See Boechler,
P.C. v. Comm’r of Internal Revenue, 596 U.S. 199, 204–05 (2022).
Thus, § 2K2.1(b)(4)(B)(ii) requires two elements: (1) that the firearm does not have a serial
number and (2) that the defendant knew, was willfully blind to, or consciously avoided knowing
of the serial number’s absence. The enhancement creates one exception: it does not apply when
the offense involves a firearm manufactured before the effective date of the GCA.
With this basic interpretation of § 2K2.1(b)(4)(B)(ii) in mind, the Court will turn to
Defendant’s individual arguments as to how the enhancement should be interpreted and applied in
this case.
A. 	The Court rejects Defendant’s argument that § 2K2.1(b)(4)(B)(ii) does not
apply to homemade firearms lawfully without a serial number.
First, Defendant argues that the Commission did not intend to include privately made
firearms that do not require serial numbers by law. Doc. 34 at 1–2. The Government contends that
§ 2K2.1(b)(4)(B)(ii) is properly applied in this case and that, for the purpose of sentencing, the
lawfulness of the lack of serial number is not relevant to the applicability of the enhancement. Doc.
35 at 5–7.
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The Court notes that Defendant’s argument would require reading additional meaning into
§ 2K2.1(b)(4)(B)(ii) beyond its plain text. The language unambiguously applies when a firearm
does not have a serial number, and a defendant knows or should know of its absence, unless the
firearm was manufactured before the GCA’s effective date. And its application of the enhancement
to a slam-fire gun is not contrary to § 2K2.1(b)(4)(B)’s purpose of discouraging the use of
untraceable weaponry in criminal activity. See United States v. Seesing, 234 F.3d 456, 460 (9th
Cir. 2000).
Even if the language was ambiguous, the recent history of § 2K2.1(b)(4)(B) demonstrates
that the enhancement applies to privately made firearms like the slam-fire gun. Defendant asserts
that the enhancement does not apply to firearms that never had a serial number. But Defendant
relies on cases decided before the Commission amended § 2K2.1(b)(4)(B). See Doc. 34 at 2.
Before November 2023, the enhancement only applied when a firearm had “an altered or
obliterated serial number.” U.S. Sentencing Commission, Official Text of Amendments to the
Sentencing 	Guidelines 	32 	(2023) 	https://www.ussc.gov/sites/default/files/pdf/amendment-
process/official-text-amendments/202305_Amendments.pdf [https://perma.cc/E7ZQ-JGE8]. But
as of November 1, 2023, the Commission determined that the enhancement would also apply if
“the defendant knew that any firearm involved in the offense was not otherwise marked with a
serial number (other than a firearm manufactured prior to the effective date of the Gun Control
Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact.” §
2K2.1(b)(4)(B)(ii) (2023). The text of the enhancement or commentary did not narrow the
enhancement to any other factual scenario. See § 2K2.1 cmt. n.8(A)–(B) (providing guidance on
interaction with § 2k2.1(a)(7) and knowledge requirement of (b)(4)(B)(ii)).
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Before November 2023, circuit courts determined that, because the language clearly only
applied to firearms with altered or obliterated serial numbers, § 2K2.1(b)(4)(B) did not apply to
firearms without serial numbers, despite the lack of logical distinction between a firearm with a
serial number that someone altered or obliterated and a firearm without a serial number by
someone’s design; circuit courts were bound by the clear language of the enhancement. See United
States v. Laughrin, 438 F.3d 1245, 1248–49 (10th Cir. 2006), as amended (Mar. 16, 2006); United
States v. Bakhtiari, 913 F.2d 1053, 1063 (2d Cir. 1990). This pre-2023 text created a loophole that
frustrated the purpose of the enhancement, which could only be closed by the Commission.
Laughrin, 438 F.3d at 1249 (noting that Commission’s choice to not amend § 2K2.1 to include
firearms that never had a serial number indicated the Commission’s “apparent agreement” with
previous circuit decisions); Seesing, 234 F.3d at 460 (noting that the purpose of the enhancement
is frustrated by plain language of § 2K2.1(b)(4)(B), which did not apply to a homemade silencer
without a serial number).
In the 2023 amendment, it does not appear that Commission intended to modify the purpose
of § 2K2.1(b)(4)(B). Rather, it intended to close the loophole recognized by the courts. 	In its
reasoning, the Commission stated that “the amendment amends § 2K2.1 to account for privately
made firearms not marked with a serial number, commonly referred to as ‘ghost guns.’” U.S.
Sentencing Commission, supra, at 40. 	It did not define “privately made firearms.” 	After
summarizing the changes to § 2K2.1(b)(4)(B), the Commission concluded that “there is no
meaningful difference” between two firearms where one has an altered or obliterated serial number
and the other has no serial number, id., consistent with circuit court decisions. The Commission
also concluded that firearms without a serial number “share the traits” that led to the enhancement
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for altered or obliterated serial numbers in the first place: the difficulty tracing them, the increased
use in connection with criminal activity, and the increased market for them. Id.
Thus, based on the existing caselaw and the text of the official amendment, the 2023
amendment served to close a loophole that frustrated the purpose of the enhancement.
Further, it appears that the Commission intended for the newly amended language to apply
broadly to all privately made firearms. The Commission did not define “privately made firearms”
or the nickname “ghost gun” in its reasoning for the 2023 amendment. But the Commission was
likely aware that the regulations governing the Alcohol Tobacco and Firearm define a “privately
made firearm” as:
A firearm, including a frame or receiver, completed, assembled, or otherwise
produced by a person other than a licensed manufacturer, and without a serial
number placed by a licensed manufacturer at the time the firearm was produced.
The term shall not include a firearm identified and registered in the National
Firearms Registration and Transfer Record pursuant to chapter 53, title 26, United
States Code, or any firearm manufactured or made before October 22, 1968 (unless
remanufactured or remade after that date).
27 C.F.R. § 478.11 (2026). Because the Commission did not indicate that the amendment should
be limited to a subset of privately made firearms (except for the specific exception for firearms
manufactured 	before 	the 	GCA’s 	effective 	date), 	the 	Commission 	contemplated 	that 	the
enhancement would include a homemade slam-fire gun.2
Accordingly, the Court rejects Defendant’s argument that the enhancement only applies to
privately made firearms that require serial numbers. As Defendant points out, not all personal
firearms, built after the GCA’s effective date, require serial numbers. See Definition of “Frame or
Receiver” and Identification of Firearms, 87 Fed. Reg. 24652, 24673 (April 26, 2022) (noting that
“[n]either the GCA nor this rule prohibits law-abiding citizens from completing, assembling, or
2 For this reason, the Court declines to address the parties’ dispute at the hearing over whether
Defendant’s slam-fire gun needed a serial number under ATF regulations.
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transferring firearms without a license as long as those persons are not engaged in the business of
manufacturing or importing firearms for sale or distribution, or dealing in firearms, or transacting
curio or relic firearms in a manner requiring a license” (citing 18 U.S.C. §§ 922(a)(1), 923(a)–
(b))). 	Yet, the Commission did not create an exception for privately made firearms that do not
need serial numbers, despite the statutory carveout and prior circuit court decisions. See Seesing,
234 F.3d at 460 (holding that § 2K2.1(b)(4)(B) enhancement did not apply to a homemade
silencer). The 2023 amendment only created an exception for firearms manufactured before the
GCA’s effective date.3 Therefore, as discussed above, limiting § 2K2.1(b)(4)(B)(ii)’s application
to firearms unlawfully without a serial number would impose a limitation not expressly articulated
by the Commission and in conflict with the enhancement’s history and purpose.
Thus, the Court finds that—based on the text, purpose, and history of the enhancement—
the Commission intended § 2K2.1(b)(4)(B)(ii) to apply broadly to combat the untraceable
weaponry used to commit crimes, including the slam-fire gun involved in Defendant’s case.
B. 	The Court rejects Defendant’s argument that a defendant must know that the
firearm needed a serial number.
Next, Defendant argues that the enhancement does not apply because there is no evidence
that Defendant knew that the slam-fire gun needed a serial number. Tr. 85:25–86:2. Because the
Court has already determined that the Commission did not intend to exclude post-GCA privately
made firearms that do not need serial numbers, the Court rejects Defendant’s argument to the
extent that it requires that the Court interpret § 2K2.1 beyond its plain text—that Defendant must
3 This was the issue in Laughrin, 438 F.3d 1245. Thus, the 2023 amendment expressly adopts the
Tenth Circuit’s interpretation that § 2K2.1 did not intend to include firearms manufactured before
a serial date was required to be printed on them, withdrawing its “apparent” agreement with prior
circuit court decisions. See id. at 1250.
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know that the firearm needed a serial number by law, regardless of its manufacture date. Thus,
looking to the enhancement’s plain language, Defendant’s remaining interpretation would now
require that he have knowledge of the language preceding the parenthetical (the requirement that
the firearm lacked a serial number) and the language inside the parenthetical (the exception for a
firearm manufactured before GCA’s effective date).
Here, the Court finds that the Commission’s use of the parenthetical was intended to
convey to the reader that the knowledge requirement only applies to “any firearm involved in the
offense was not otherwise marked with a serial number”—a noun phrase appearing in the middle
of the sentence and directly preceding the parenthetical. Further, the enhancement only requires
that a defendant “knew” or “was willfully bind to or consciously avoided knowledge of” a single
“fact.” See § 2K2.1(b)(4)(B)(ii). Accordingly, based on a plain reading of the enhancement, the
Government does not have to prove both that Defendant knew that a firearm was not marked with
a serial number and that Defendant knew that the firearm was not manufactured before the GCA’s
effective date.
This interpretation is supported by the Commission’s description of the 2023 amendment,
which separately describes the knowledge requirement and the GCA exception:
The Commission determined that the enhancement should apply only to those
defendants who knew or consciously avoided knowing that the firearm was not
marked with a serial number. The amendment also specifically excepts firearms
manufactured before the effective date of the Gun Control Act of 1968, which
imposed 	the 	requirement 	that 	federal 	firearms 	licensees 	serialize 	newly
manufactured or imported firearms.
U.S. Sentencing Commission, supra, at 41.
In sum, the Court finds that § 2K2.1(b)(4)(B)(ii) merely requires that Defendant knew that
the firearm did not have a serial number; it does not require Defendant to know that the firearm
needed a serial number because it was manufactured after the GCA’s effective date.
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C. 	The Court rejects Defendant’s argument that the Government must prove that
the gun was manufactured after the effective date of the GCA.
Finally, as to Objection 1, Defendant argues that the Government did not prove that the
gun was made after the GCA’s effective date. See Tr. 86:17–23. The Government conceded that it
presented no evidence that the firearm had been made after 1968, although there was a lack of
visible rust or corrosion on the firearm. Id. 86:17–23.
The text and commentary of § 2K2.1(b)(4)(B)(ii) do not specify which party has the burden
of proof. For Defendant’s argument to succeed, the enhancement must place the burden on
Government. If the GCA’s effective date was an element of the enhancement, the Government
would likely have that burden. See United States v. Munoz Tello, 531 F.3d 1174, 1181 n.12 (10th
Cir. 2008) (citing United States v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2006)). But, as the Court
concluded above, the language at issue is an exception to the enhancement, not an element of the
enhancement, due to the Commission’s use and location of a parenthetical that begins with “other
than.” Accordingly, the Government is not necessarily required to have that burden.
Here, the Court finds that once the Government presents evidence of a defendant’s
knowledge of the firearm’s lack of serial number, the burden shifts to the defendant to prove that
the exception applies—that the firearm was manufactured before the GCA’s effective date. The
Court’s determination is consistent with burden-shifting requirements of other exceptions to
enhancements. See, e.g., United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992) (once
government 	met 	burden, 	defendant 	must 	show 	that 	exception 	applies 	as 	to 	U.S.S.G. 	§
2D1.1(b)(1)); United States v. Hanson, 534 F.3d 1315, 1317 (10th Cir. 2008) (defendant bears
burden of showing sporting exception applies under § 2K2.1(b)(2)); cf. United States v. Wilson,
17 F.4th 994, 1004 (10th Cir. 2021) (once government established drug possession amount at
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sentencing, defendant had burden of proving that some should be excluded as personal use). This
burden-shifting framework also makes practical sense since a defendant is the party with
knowledge of when and how a firearm was acquired by the defendant. And determining the
manufacture date would not place an undue burden on a defendant, who under other circumstances
would be able identify the manufacture date of a firearm based on the photographs of the firearm
provided by the Government and testimony by an expert.
In arguing that the Government has failed to meet the burden, Defendant has not put forth
any evidence to demonstrate by a preponderance of the evidence that the slam-fire gun was
manufactured before the effective date of the GCA. Accordingly, the Court finds that the exception
does not apply to Defendant’s case.
Therefore, based on the application of Defendant’s case to the text of § 2K2.1(b)(4)(B)(ii),
the enhancement applies. The Court overrules Objection 1 to the PSR because the elements are
met; the slam-fire gun lacked a serial number, and Defendant knew that the slam-fire gun lacked
a serial number.
II. 	Objections 2 and 3 are overruled.
Next, Defendant challenges the PSR’s description that Defendant shot D.B. with the slam-
fire gun (Objections 2 and 3). See Doc. 34 at 3–5. According to Defendant, he only pled to
possession of ammunition, and the plea agreement does not identify a shooting and a victim. Id.
at 3; Tr. 91:13–15. And the Government cannot meet its burden by proving that the facts in PSR
Paragraphs 14–22, 24, and 109 occurred by a preponderance of the evidence. Doc. 34 at 5; Tr.
90:11–16. To that end, Defendant asserts that an enhancement under U.S.S.G. § 2K2.1(b)(7) does
not apply since the record fails to support that he committed the offense (felon in possession of
ammunition) in connection with another felony offense (assault with a dangerous weapon in Indian
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Country). In response, the Government contends that it has met its burden based on the exhibits
in the record and testimony presented at the hearing. Tr. 87:14–22.
The Court will first address Defendant’s objection to the facts in the PSR (Objection 3)
before turning to his objection to the enhancement under § 2K2.1(b)(7) (Objection 2).
Defendant contends that the Government cannot prove by a preponderance of the evidence
that a shooting occurred and that D.B. is a victim. Although the Government demonstrated that the
slam-fire gun can operate as a firearm, Defendant states that this “does not establish that it was
discharged during this incident, that it caused any injury, or that Mr. Tyler used it against [D.B.].”
Doc. 34 at 3. For example, Defendant pointed out that D.B. never identified Defendant by name,
the observed wound on D.B.’s hand was small and not actively bleeding, no witnesses ever
identified Defendant as a shooter, and no evidence corroborated that a shooting occurred. Id.
Moreover, D.B.—who reported the shooting—later recanted his earlier testimony. Id. at 3–4. The
Government disagrees with Defendant’s arguments in full.
Defendant has sufficiently raised a specific factual dispute as to whether a shooting
occurred, resulting in injury to D.B. This triggers the Court’s factfinding duty under Fed. R. Crim.
P. 32(i)(3)(B). See United States v. Tindall, 519 F.3d 1057, 1062 (10th Cir. 2008). Thus, the Court
will not merely rely on the facts in the PSR, and the Government will bear the burden of proving
by the preponderance of the evidence facts supporting the sentencing enhancement. See United
States v. Ruby, 706 F.3d 1221, 1227 (10th Cir. 2013).
To resolve the factual dispute, the parties presented evidence and testimony at the hearing.
FBI SA Andrew Wright and FBI SA Michael Mostaghni testified for the Government as to the
incident and the firearm, respectively. Gary Ainsworth testified for Defendant as to the firearm.
The Government also presented several exhibits, including surveillance video from Bashas’ on
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April 29, video of D.Y.’s interview by officers on May 1, the Shiprock Incident Report Form, an
undated TikTok video of Defendant with the slam-fire gun, a test fire video by SA Mostaghni, and
audio of D.B. recanting his April 29 statements. See Doc. 42 (Exhibit List). None of the exhibits
or testimony provided direct evidence that a shooting occurred on April 29 and that D.B. was
injured in the shooting. However, for the reasons below, the Court finds that D.B.’s statements to
D.Y. and officers, plus the corroborative evidence, make it more likely than not that the shooting
occurred.
First, the Court finds D.Y.’s recounting of the incident to be reliable. At sentencing, a court
may consider hearsay statements if they “bear some minimal indicia of reliability.” United States
v. Leib, 57 F.4th 1122, 1128 (10th Cir. 2023); U.S.S.G. § 6A1.3. The Court reviewed the video
interview of D.Y., where the Court was able to observe D.Y.’s demeanor. See United States v.
Stapp, No. 24-7009, 2025 WL 1113927, at *5 (10th Cir. Apr. 15, 2025) (noting that statement on
camera corroborated earlier statement and allowed court to observe demeanor). The interview
matched D.Y.’s other statements in the Shiprock Incident Report Form, including the reporting
call and April 30 interview. Further, D.Y. was a neutral party, who did not know either Defendant
or D.B., Doc. 42-3 at 14:50–14:53, and had no reason to lie, see Ruby, 706 F.3d at 1229–30.
Additionally, the record tends to “buttress,” rather than “undermine” the Court’s
confidence in D.Y.’s testimony. See United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995)
(finding no minimal indicia of reliability of single report when there was no sworn testimony,
officer did not observe demeanor and could not form opinion as to veracity, and no other
corroborating evidence existed). Although the surveillance video does not fully capture the events,
it is consistent with D.Y.’s interview. The viewer can see a person matching Defendant’s and the
shooter’s description (wearing a gray shirt, black pants, and white shoes) walking around and
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arguing with D.B. outside Bashas’. Doc. 42-4 at 1:02–1:18, 2:19–2:26. Defendant can be seen
wearing a backpack matching the description of the backpack described by D.Y., D.B., and
responding officers. Id. And the video footage captures D.Y. watching Defendant and D.B. argue,
followed by D.B. entering the store and gesturing and talking to D.Y. Doc. 42-5 at 1:30–1:54.
After listening to D.B., D.Y. is seen pulling out his phone to make a call as he walks offscreen. Id.
at 2:00.
The dispatch and incident reports, upon which SA Wright’s testimony was partially based,
are also sufficiently reliable as they match the description of the events by D.Y., the evidence
gathered on scene, and the resulting arrest and charges. See Doc. 42-12.
Next, the Court finds that D.B.’s statement meets the minimal indicia of reliability required
at sentencing. D.B. reported that Defendant shot him with a makeshift shotgun behind Little
Ceasar’s restaurant, injuring him in his left hand. Doc. 42-12 at 4, 7. According to the PSR, D.B.
reported the shooting to two individuals, first to D.Y. shortly after the incident (who then reported
the incident to police) and then to the officers when they responded to the call (who then
documented the incident in the police dispatch report). Doc. 36 ¶¶ 16, 20. Again, the Court is
satisfied that D.Y. reliably relayed D.B’s statement to police. And D.B.’s statements reported by
D.Y. and responding officers are consistent with one another. And D.B. did not make the call that
reported the shooting to police, which tips his telling of events towards reliability. See United
States v. Lujan, No. 22-2157, 2024 WL 1905672, at *3 (10th Cir. May 1, 2024). Rather, D.B.
contemporaneously told D.Y. of the shooting right after he is seen arguing with Defendant. See
United States v. Farnsworth, 92 F.3d 1001, 1010 (10th Cir. 1996).
The Court does not find that D.B.’s testimony must be disregarded because he later
recanted his testimony. It appears that D.B. became uncooperative, and later recanted, once he
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understood that police wanted his cooperation. See Leib, 57 F.4th at 1129 (finding no bias because
witness declined to testify against defendant after reporting offense). The Court finds that it is
more likely that D.B. was telling the truth to D.Y. just after the event and to officers when they
arrived, before he realized that he would be asked to cooperate and potentially testify against D.B.
And Defendant’s statement does not cast doubt on D.B.’s telling of the incident. Both
parties admit to arguing right before D.B. reported the incident. But only D.B.’s story aligns with
the evidence on the record. Defendant asserts that D.B. threw the backpack in his direction when
they saw the officers, and that he had never touched the backpack, leaving it on the ground. Doc.
42-10 at 1. This directly contradicts the evidence on the record that he was seen wearing the
backpack by two individuals. And the Court can view Defendant wearing the backpack in Bashas’
surveillance footage. Doc. 42-4 at 2:22. Defendant also stated that he hadn’t touched a firearm in
years, before he later admitted to touching a homemade shotgun the day of the incident because
D.B. showed it to him. Doc. 42-10 at 2. This is contradicted by the TikTok video and officer report
several hours before the incident. See Doc. 42-12 at 6.
Next, the Court finds that the evidence demonstrates that Defendant was in possession of
the firearm both before and after the reported shooting, which corroborates D.B.’s account that a
shooting occurred. Defendant was seen with the slam-fire gun hours before the incident. Doc. 42-
12 at 5. Video footage from Bashas’ lobby show the firearm is sticking out of the backpack as
Defendant walks past the front of Bashas’. Doc. 42-4 at 2:33. D.Y. also reported seeing Defendant
wearing the backpack with pipes visibly sticking out when Defendant was outside Bashas’, after
the shooting but before the officers arrived on scene. Doc. 42-3 7:52–8:08. And when officers
responded to D.Y.’s call, an officer observed Defendant wearing a backpack with pipes sticking
out upon arrival. Doc. 42-12 at 6. The officer saw Defendant, after noticing the officers, walk away
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and drop the backpack containing the firearm. Id. This suspicious activity indicates that Defendant
knew that officers were arriving because of an incident involving the slam-fire gun. See United
States v. Martinez, 824 F.3d 1256, 1262 (10th Cir. 2016). Further, an undated TikTok video
showed Defendant holding the slam-fire gun, Doc. 42-8—directly contradicts Defendant’s post-
arrest interview where he said that he had only touched the firearm once at D.B.’s house on the
date of the incident, Tr. 25:7–19.
The Court also disagrees with Defendant that D.B. did not identify Defendant as the
shooter. Although the Government did not provide clear evidence linking Defendant to the alias
“Smokey,” D.B. told a responding officer that “Smokey” shot him and that the backpack found on
scene belonged to “Smokey.” Doc. 42-12 at 7. According to D.Y., when D.B. reported to D.Y. that
someone had shot at him, he pointed towards Defendant, told D.Y. what the shooter was wearing
(which matched Defendant’s clothes), and said that the shooter had a “makeshift shotgun.” Doc.
42-3 at 9:53–10:16. Further, in the police dispatch report, D.Y. identified the shooter as “Harold
Tyler,” Doc. 42-12 at 4, which is phonetically similar to Defendant’s name, Terrold Tyler.
Finally, the Court finds that the Government has met its burden of proving the nexus
between the ammunition and the shooting. SA Wright testified that Defendant knew how to operate
the slam-fire gun. Tr. 26:1–6. Video footage of a firearm functionality test by SA Mostaghni,
principal firearms and tactics instructor for the FBI, confirmed that the firearm functioned. Doc.
42-13; Tr. 38:18–19, 46:6–8. And the Court finds that the firearm could have fired the 20-gauge
ammunition found in the backpack. Although testimony by SA Mostaghni demonstrated that 12-
gauge ammunition fit the slam-fire gun, and Defendant stated that the firearm shot 12-gauge
ammunition, SA Mostaghni’s testimony also confirmed that the firearm functioned with 20-gauge
ammunition. Tr. 53:18–55:06. The Court finds that this testimony is sufficient to establish that
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Defendant shot D.B. with 20-gauge ammunition carried in the backpack, even though the
functionality test with the 20-gauge ammunition was not captured on video.
Looking at the totality of the circumstances, the Court finds that there is sufficient
corroborative evidence independent of D.B.’s unsworn statements for the Government to meet its
burden of proof. Although the Court agrees with Defendant that the Government could have
provided more evidence to strengthen its argument—like witness testimony of the shooting, a
shotgun casing, pellets, and fingerprints—the Government is not required to prove the existence
of a shooting and victim beyond a reasonable doubt. Here, the Government has provided enough
evidence to demonstrate that it is more likely than not that the facts described in Paragraphs 14–
22, 24, and 109 of the PSR occurred. Accordingly, the Government has met its burden of the
preponderance of the evidence and Objection 3 is overruled.
Because the Court overrules Objection 3, the Court also overrules Objection 2. Based on
the facts in the PSR, there is sufficient evidence to support an enhancement under § 2K2.1(b)(7)
because the offense (felon in possession of ammunition) in connection with another felony offense
(assault with a dangerous weapon in Indian Country).
III. 	Objection 4 is overruled.
Finally, Defendant objects to the USPO’s inclusion of a 2015 misdemeanor conviction in
its calculation of his criminal history. Here, the Court finds that the Government has met its burden;
the NCIC report and the court docket are enough to establish the 2015 conviction.
As an initial point, Defendant incorrectly states that the misdemeanor (battery) should be
excluded unless it resulted in probation of more than one year of imprisonment of at least thirty
days. 	As the Government points out, that exception only applies to certain misdemeanors. See
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Doc. 35 at 9. Battery is not one of the listed misdemeanors. See U.S.S.G. § 4A1.2(c)(1). Therefore,
if proven, the misdemeanor offense should be included regardless of the length of sentence.
“Whenever a prior conviction is relevant to sentencing, the government must establish the
fact of that conviction by a preponderance of the evidence.” United States v. Martinez-Jimenez,
464 F.3d 1205, 1209 (10th Cir. 2006) (citing United States v. Cooper, 375 F.3d 1041, 1052 (10th
Cir. 2004)). Evidence of a prior conviction must be supported by “sufficient indicia of reliability
to support its probable accuracy.” United States v. Zuniga-Chavez, 464 F.3d 1199, 1203 (10th Cir.
2006) (quoting § 6A1.3(a)). The district court’s determination of whether evidence is sufficiently
reliable to establish a prior conviction is a factual matter that is reviewed for clear error. See
Martinez-Jimenez, 464 F.3d at 1209–10.
In Martinez-Jimenez, the district court relied on an NCIC report and letter from the state
court that confirmed the conviction. Id. at 1207–08. First, the Tenth Circuit noted that multiple
circuit courts, in unpublished opinions, have held that NCIC reports, or other “computer reports or
printouts,” alone could establish the existence of a conviction, absent any contradictory evidence.
Id. Next, the Tenth Circuit found that the district court was “even more conservative than those
held in the above-cited cases not to be clearly erroneous.” Id. at 1211. 	Since the district court
considered both the NCIC report and letter together, there was sufficient information to establish
that the defendant’s conviction was not clearly erroneous. Id. at 1212.
Here, the Government submitted electronic versions of the NCIC record excerpt and state
court docket. 	See Doc. 41-1; Doc. 41-2. 	First, Defendant’s personal information in the NCIC
excerpt and the court docket match the information in the PSR, including the photograph, date of
birth, social security number, and driver’s license number. See United States v. Thomas, 611 F.
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App’x 508, 511 (10th Cir. 2015) (noting that the personal information in online report from state
database matched PSR to find that the government met its burden).
Next, the offense information on the NCIC excerpt and the court docket are sufficiently
similar. The NCIC excerpt shows the arrest date (June 4, 2015), case number (151002388), and
arresting agency (Farmington Police Department). It also shows the charge (battery in violation of
NMSA 1978, Section 30-03-04 (1963)). The arrest date and offense (battery) are the same on the
New Mexico court docket. The docket provides further information, like the plea, disposition, and
sentencing dates, along with the conditions ordered. 	Although the case numbers are slightly
different (case number is M-147-MR-2015-00384 on the docket) and court docket does not
explicitly say that the Farmington Police Department is the arresting agency, the Court does not
find that these differences are fatal to the Government’s argument considering the supporting
information and lack of other contradictory information.
Importantly, Defendant does not argue that he is not the person referred to in the docket or
that the conviction never occurred. See Doc. 34 at 8; Martinez-Jimenez, 464 F.3d at 1212. Since
Defendant has not presented information that he is someone other than the person in the submitted
NCIC excerpt and court docket—or that he is someone other than the person convicted of the
misdemeanor—the Court finds that, when viewed together, the documents show that the
Government has met its burden of proving the existence of the 2015 misdemeanor conviction.
CONCLUSION
For the reasons discussed above, the Court overrules Defendant’s Objections 1 to 4. The
Court will set a sentencing hearing by separate order. The Court will hear any remaining arguments
at that hearing.
IT IS SO ORDERED.
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______/S/________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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