FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 16, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-4084
                                               (D.C. No. 2:13-CR-00602-DN-DBP-1)
ROBERTO MIRAMONTES ROMAN,                                    (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, EBEL, and MORITZ, Circuit Judges.
                   _________________________________

      Roberto Roman appeals his convictions for intentionally killing a law-

enforcement officer and for several drug and firearm offenses. On appeal, Roman

advances two arguments for reversal. First, he asserts that the district court erred by

excluding evidence of his prior state-court acquittal. Next, he challenges the

sufficiency of the evidence supporting his conviction for carrying a gun in

furtherance of a drug-trafficking crime.1




      *
          This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
        1
          Roman also contends that the double-jeopardy clause barred his underlying
federal prosecution. But as we discuss below, Roman concedes we are constrained to
reject this argument; he raises it only to preserve the issue for Supreme Court review.
      Contrary to Roman’s assertions, the district court neither violated his Sixth

Amendment right to present a defense nor abused its discretion by excluding

evidence of Roman’s prior state-court acquittal; that evidence wasn’t material, and

any probative value it might have had was substantially outweighed by the risk that it

would unfairly prejudice the government, confuse the issues, and mislead the jury.

Moreover, there was sufficient evidence for a rational jury to find Roman guilty of

carrying a firearm in furtherance of a drug-trafficking crime. Accordingly, we affirm.

                                    Background

      In January 2010, Roman drove to Ruben Chavez’ residence with some

methamphetamine, a Bersa pistol, and a loaded AK-47 rifle. When he arrived, he

took the drugs and guns inside with him. Roman and Chavez then smoked

methamphetamine, drank alcoholic beverages, watched movies, and used social

media. Roman also showed the AK-47 to Chavez and allowed him to hold it. About

six hours later, Roman left to sell methamphetamine to Ryan Greathouse. He again

took the guns and drugs with him and put the AK-47 in his vehicle’s trunk.

      On the way to meet Greathouse, Roman pulled over and took the AK-47 out of

the trunk and put it in the vehicle. When Roman arrived at the meeting place,

Greathouse got into Roman’s passenger seat. Roman drove a short distance and then

sold 3.5 grams of methamphetamine to Greathouse. Greathouse paid Roman $150.

He owed Roman more than that, but he explained that he would pay Roman after he

collected some money later that evening.



                                           2
       Roman and Greathouse smoked methamphetamine and then drove to collect

the money Greathouse owed Roman. On the way, they passed a marked sheriff’s

vehicle, which began following them. The sheriff’s vehicle ultimately activated its

lights and siren, and Roman pulled over. Deputy Josie Greathouse Fox—who, as

happenstance would have it, was Greathouse’s sister—got out of the sheriff’s vehicle

and approached Roman’s driver-side door. As she did so, Roman rolled down the

window. And as Fox neared the vehicle, she was fatally shot through the driver’s

window. Roman and Greathouse immediately fled the scene.

       Local officers eventually found Roman hiding in a shed in Beaver, Utah and

arrested him. During an interview with local investigators, he confessed to killing

Fox. In the midst of his confession, he demonstrated at least 12 times how “he

reached down and grabbed the AK[-]47, raised it up over his left hand or left

shoulder, poked it out [of the window] just a little bit . . . and pulled the trigger.” R.

vol. 2, 362.

       Roman was tried in state court for several offenses, including Fox’s murder.2

Despite Roman’s earlier confession, he testified that Greathouse killed Fox. The

state-court jury acquitted Roman of Fox’s murder. The United States then brought its

own charges against Roman, including intentionally killing a local law-enforcement

officer in violation of 21 U.S.C. § 848(e)(1)(B) and possessing a firearm in




       2
       Greathouse wasn’t charged in connection with these events; he died of a drug
overdose four months after Roman’s arrest.
                                             3
furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). This

time, the jury convicted Roman on all counts. He appeals.

                                       Analysis

I.    The State-Court Acquittal

      Roman first argues that the district court erred by excluding evidence of his

state-court acquittal. His challenge turns on certain facts related to the government’s

investigation of the vehicle he was driving on the night of Fox’s murder, so we begin

by detailing those facts.

      The day after Fox’s murder, Douglas Squire, a forensic supervisor for the Utah

County Sheriff’s Office, investigated and searched Roman’s vehicle. He found two

bullet casings on the right side of the back seat and one casing on the vehicle’s front

passenger seat. Critically, he didn’t notice any smudge marks on the vehicle’s

headliner—the fabric on the interior roof of the vehicle—above the driver’s seat.

      During Roman’s state-court trial, Roman testified that Greathouse shot Fox.

To test the veracity of Roman’s story, state officials performed a preliminary

reconstruction of Fox’s murder. In doing so, they took multiple photographs of the

reconstruction process.

      After Roman’s state-court acquittal, the government arranged to conduct its

own reconstruction of Fox’s murder. In preparation, Squire again investigated

Roman’s vehicle and took gunshot residue samples. This time, he noticed two

smudge marks on the vehicle’s headliner above the driver’s seat. ATF Agent Gregory

Klees then performed the reconstruction. He concluded that the individual sitting in

                                           4
the driver’s seat fired the AK-47. In reaching this conclusion, Klees relied on three

factors: trajectory alignment, cartridge-case-ejection analysis, and the smudge marks

on the headliner above the driver’s seat. The smudge marks, according to Klees, were

“the most significant piece of evidence.” R. vol. 2, 870.

       Roman didn’t seek to suppress the smudge marks. But he did cite them as a

basis for arguing, in a pretrial motion, that the district court should allow him to

present evidence of his state-court acquittal to show Squire’s motive to fabricate the

smudge marks. Specifically, Roman pointed out that the smudge marks didn’t appear

in any of the photographs that state officials took during their preliminary

reconstruction. So he reasoned that to the extent the smudge marks were visible in

the photographs taken by the government during its subsequent reconstruction,

Squire must have fabricated them.3 And he argued that his state-court acquittal gave

Squire a strong motive for doing so.

       The district court rejected Roman’s argument and excluded evidence of

Roman’s state-court acquittal. Roman challenges this ruling on two grounds. First, he

contends that the district court’s decision violated his Sixth Amendment right to

present a defense. Second, he asserts that the district court abused its discretion in



       3
         The government argues that proof of the smudge marks existed prior to
Roman’s state-court trial. Specifically, it argues the photographs taken during the
state’s preliminary reconstruction show the smudge marks on the headliner above the
driver’s seat. But even assuming the smudge marks aren’t visible in these
photographs, we ultimately conclude, for the reasons discussed below, that Roman
isn’t entitled to relief on this issue. So we need not resolve the parties’ dispute on this
point.
                                            5
excluding evidence of the acquittal under Federal Rule of Evidence 403. For the

reasons discussed below, we reject both of Roman’s arguments.

      A.     Constitutional Violation

      Roman first argues that the district court violated his constitutional right to

present a defense when it excluded evidence of his state-court acquittal. We review

de novo whether a constitutional violation has occurred. See United States v. Markey,

, 1135 (10th Cir. 2004).

      Criminal defendants have a constitutional right to present evidence in support

of their defense. See U.S. Const. amend. VI. But this right isn’t unfettered. See

. In particular, “a criminal defendant does not have a

constitutional right to present evidence that is not relevant and not material to his [or

her] defense.” United States v. Solomon, 

, 1239 (10th Cir. 2005).

      Evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence,” and that “fact is of consequence in

determining the action.” Fed. R. Evid. 401. And evidence is material if its absence

“rendered [the] trial fundamentally unfair.” 

. “In other

words, ‘material evidence is that which is exculpatory—evidence that if admitted

would create reasonable doubt that did not exist without the evidence.’” Young v.

Workman, 

, 1238 (10th Cir. 2004) (quoting Richmond v. Embry, 

, 872 (10th Cir. 1997)).

      Here, Roman first contends that his state-court acquittal was relevant for the

limited purpose of showing Squire’s motive to fabricate the smudge marks. For

                                            6
purposes of this appeal, we assume Roman is correct.4 But we disagree with Roman’s

subsequent assertion that the acquittal was material.

      That’s because even if the district court had admitted evidence of the acquittal

and the jury disregarded the smudge marks as a result, the fact remains that the other

evidence before the jury overwhelmingly indicated that Roman was guilty of Fox’s

murder. See 

(concluding that excluded evidence wasn’t

material in absence of any indication it “would have created reasonable doubt had it

been introduced”).

      In particular, the jury watched Roman’s videotaped confession, during which

he demonstrated no fewer than 12 times how he held the AK-47 and fired it at Fox.

And the jury also heard evidence corroborating nearly every aspect of this

confession. For example, Roman told investigators precisely where to find the AK-47

that he discarded after the murder, and this information proved accurate. Similarly,

Roman said (1) he called Chavez after the murder, (2) Chavez picked up him up in an

orange Corvette, (3) Roman removed the rear license plate from the vehicle he had

been driving, and (4) they drove away in the Corvette. Chavez’ testimony

corroborated this timeline and information. Moreover, the jury heard evidence that

      4
        We also assume that this evidence wasn’t inadmissible hearsay. Typically, “a
judgment of acquittal is hearsay.” United States v. Sutton, 

, 1493 (10th
Cir. 1984). But according to Roman, this general rule doesn’t apply here because he
didn’t offer the judgment of acquittal for the truth of the matter asserted—i.e., to
show that a prior jury acquitted him. Instead, he says he offered the acquittal to show
Squire’s motive for fabricating evidence of his guilt. See United States v. Lewis, 

, 1282 (10th Cir. 2010) (defining hearsay, in relevant part, as a statement
offered to prove truth of matter asserted). For purposes of this appeal, we assume but
do not decide that Roman is correct.
                                           7
Roman confessed to Fox’s murder a second time, to his fellow inmate Jason Corey.

Finally, in addition to his confessions and the substantial corroborating evidence, the

jury heard testimony that Roman twice suggested he would rather shoot a police

officer than go to jail. Most notably, during his interview with local investigators,

Roman told them that approximately 20 minutes before Fox’s death, he saw a vehicle

approaching the vehicle in which he and Greathouse were traveling and told

Greathouse that if the vehicle contained police officers, it wasn’t “going to be good

for them.” R. vol. 2, 1290. More specifically, Roman indicated that if the vehicle

contained police officers, he “would shoot them.” 

few days before

Fox’ death, while driving with his friend Sarah Hatch, Roman passed a police officer

and told Hatch that “he would do what he had to do to not go to jail.” 

      In light of this overwhelming evidence of Roman’s guilt, we conclude the

evidence of Roman’s state-court acquittal was not material. Therefore, its absence

did not render his trial fundamentally unfair, and the district court did not violate

Roman’s constitutional rights by excluding it. See 

.

      B.     Evidentiary Violation

      Even assuming the district court didn’t violate Roman’s Sixth Amendment

right to present a defense by excluding evidence of the state-court acquittal, Roman

argues that the district court nevertheless erred in excluding the evidence because

(1) it was relevant and (2) its probative value wasn’t substantially outweighed by the

potential danger of unfair prejudice. See Fed. R. Evid. 403. The district court

disagreed. It found that other evidence already established Squire’s motive to

                                            8
fabricate the smudge marks. And it concluded that the state-court acquittal would

“create[] a substantial risk of unfair prejudice to the government.” R. vol. 1, 121. We

review the district court’s order excluding evidence under Rule 403 for abuse of

discretion.5 See 

–35.

      As discussed above, evidence is relevant if it tends “to make a fact [of

consequence] more or less probable.” Fed. R. Evid. 401. And relevant evidence is

generally admissible. 

a district 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.” 

first contends that his state-court acquittal was relevant for the limited

purpose of showing Squire’s motive to fabricate the smudge marks. For purposes of

evaluating this argument, we again assume the relevance of Roman’s state-court

acquittal. But Roman further argues that the acquittal’s probative value wasn’t

substantially outweighed by the risk of unfair prejudice because an appropriate

limiting instruction would have mitigated that risk. On this point, we disagree.




      5
         Citing United States v. McVeigh, 

(10th Cir. 1998), Roman
urges us to review the district court’s Rule 403 determination de novo. But in
McVeigh, we conducted de novo review because the record included a colloquy “that
shed[] considerable light on how the district court viewed the evidence,” even though
the district court “failed to make an explicit record of its balancing of the Rule 403
factors.” 

In contrast, the district court explicitly balanced the Rule 403
factors here. Thus, Roman’s reliance on McVeigh is misplaced, and we reject his
argument for de novo review.
                                           9
      It’s simply unrealistic to suggest that this jury, tasked with deciding whether

Roman was guilty of murdering a police officer, could have set aside the significance

of Roman’s state-court acquittal for the same murder and considered that acquittal

solely as evidence of the motive to fabricate. As such, the district court didn’t abuse

its discretion in concluding that a limiting instruction wouldn’t have sufficiently

mitigated the risks inherent in admitting this evidence. See United States v. De La

Rosa, 

, 219–20 (5th Cir. 1999) (explaining that “evidence of a prior

acquittal will often be excludable . . . because its probative value likely will be

‘substantially outweighed by the danger of prejudice, confusion of the issues, or

misleading the jury’” (quoting Fed. R. Evid. 403)); United States v. Doles, 335 F.

App’x 736, 738–39 (10th Cir. 2009) (unpublished) (concluding that district court

didn’t abuse its discretion by excluding, for purposes of federal trial on charges of

knowingly and unlawfully selling drug paraphernalia, evidence that defendant was

acquitted in state court of similar charges; noting that “risk of confusion of the issues

was high”).

      Our conclusion is bolstered by Roman’s failure to cite a single case in which

we—or any of our sibling circuits—have concluded that a district court abused its

discretion by excluding evidence of a defendant’s prior state-court acquittal for the

same conduct at issue in a subsequent federal trial. Roman does cite Borunda v.

Richmond, 

(9th Cir. 1988). There, the district court admitted evidence

of a prior acquittal “for the purpose of showing,” in a subsequent civil proceeding,

“that the plaintiffs incurred damages in the form of attorneys’ fees in successfully

                                           10
defending against the state criminal charges, and that the fees charged were

reasonable in light of the success achieved.” 

The Ninth Circuit

reluctantly affirmed, noting that although it “would have been inclined to exclude the

evidence of acquittal[],” the district court didn’t abuse its discretion in admitting it.

       But Borunda doesn’t stand for the proposition that a district court necessarily

abuses its discretion in refusing to admit evidence of an acquittal when it’s offered to

prove something other than a defendant’s innocence. On the contrary, Borunda

illustrates the wide latitude that district courts enjoy in determining whether evidence

is admissible under Rule 403. Because the district court in this case didn’t exceed

that wide latitude in excluding evidence of Roman’s state-court acquittal, it didn’t

abuse its discretion.

II.    Sufficiency of the Evidence

       Next, Roman challenges the sufficiency of the evidence supporting his

conviction for possessing a firearm in furtherance of a drug-trafficking crime. We

typically review the sufficiency of the evidence de novo. See United States v. Wilson,

, 1219 (10th Cir. 2001). But as the government points out, Roman

failed to renew his motion for a judgment of acquittal after the close of evidence, so

our review is limited to plain error. See United States v. Rufai, 

, 1189

(10th Cir. 2013) (explaining that to succeed on plain-error review, appellant must

establish (1) that error occurred, (2) that it was plain, (3) that it affected his or her

substantial rights, and (4) that it “seriously affect[ed] the fairness, integrity, or public

                                             11
reputation of judicial proceedings” (quoting United States v. Story, 

,

1244 (10th Cir. 2011))).

      Of course, as Roman points out in reply, this is mostly a distinction without a

difference: “review under the plain[-]error standard . . . and a review of sufficiency

of the evidence usually amount to largely the same exercise.” 

States v. Duran, 

, 1335 n.9 (10th Cir. 1998)). That’s because the first

three elements of plain-error review are necessarily satisfied when there’s

insufficient evidence of guilt. 

is only in a rare case when the absence of

sufficient evidence will not meet the fourth factor of plain[-]error review.” 

standard, we won’t “weigh evidence or consider credibility of

witnesses.” 

(quoting United States v. Renteria, 

, 1253 (10th

Cir. 2013)). Further, we must draw all reasonable inferences in the light most

favorable to the government and ask only whether “a reasonable jury could find [the

defendant] guilty beyond a reasonable doubt.” 

original) (quoting

United States v. Kaufman, 

, 1263 (10th Cir. 2008)).6


      6
        The government urges us to find Roman’s sufficiency challenge waived
because Roman failed to argue for plain error in his opening brief. The failure to
address plain error in an opening brief typically “marks the end of the road for an
argument” not raised in district court. United States v. Lamirand, 

,
1099 n.7 (10th Cir. 2012) (quoting Richison v. Ernest Grp., Inc., 

, 1131
(10th Cir. 2011)). But Roman fully argued for plain error in his reply brief. See
United States v. Courtney, 

, 684 (10th Cir. 2016) (reviewing for plain
error where appellant “argued plain error fully in his reply brief”). And the
government also sought and received permission to file a surreply brief. As such, the
issue has been fully briefed, and we therefore opt to address it. See United States v.
Montgomery, 

, 1231 n.1 (10th Cir. 2008) (exercising discretion to
ignore waiver because “the issue ha[d] been briefed fully and argued by the parties”).
                                           12
       To convict Roman under § 924(c)(1)(A), the government was required to

prove beyond a reasonable doubt that Roman (1) distributed methamphetamine to

Chavez; (2) used or carried a firearm; and (3) did so during and in relation to that

distribution. See United States v. Nicholson, 

, 990 (10th Cir. 1993).

Roman doesn’t dispute that he distributed methamphetamine to Chavez. Nor does he

dispute that he used or carried a firearm as he did so. Instead, he argues only that the

government failed to prove that he used or carried the firearm “in relation to” the

distribution of methamphetamine.7 § 924(c)(1)(A).

       Although not without boundaries, “[t]he phrase ‘in relation to’ is expansive.”

Smith v. United States, 

, 237 (1993). Critically, a person carries a

firearm “in relation to” a drug-trafficking offense if the firearm either facilitates or

has “the potential of facilitating” the drug-trafficking crime. United States v. Brown,

, 1250 (10th Cir. 2005) (emphasis added) (quoting 

). For instance,“[o]ne recognized theory that explains how a gun facilitates a

drug[-]trafficking crime is that the gun deters interference with the crime.” 

(quoting United States v. Radcliff, 

, 1159 (10th Cir. 2003)).

       Roman contends the evidence was insufficient to show that he carried the

firearm “in relation to” his distribution of drugs to Chavez. § 924(c)(1)(A). In

support, he points out that although he carried the AK-47 from his vehicle to Chavez’

residence, the government didn’t establish the distance between the residence and the

       7
         In his opening brief, Roman also argued that there was insufficient evidence
to prove he carried the AK-47 during the distribution to Chavez. But because Roman
explicitly withdrew this argument in his reply brief, we decline to consider it.
                                            13
location where he parked. Thus, he maintains there was no evidence that he used the

weapon for protection or deterrence during his walk from his vehicle to the house.

Roman also points out that the government presented no evidence that the police or

anyone else “would be happening by [Chavez’] living room.” Aplt. Br. 56. Thus, he

again suggests the government failed to present evidence that he needed the weapon

for protection or deterrence while he was in Chavez’ living room.

       But Roman cites no authority, and we are aware of none, indicating that the

government must identify a specific threat in order to establish that a gun was carried

to facilitate or potentially facilitate a drug-trafficking crime. Instead, case law

supports the jury’s conclusion that Roman carried the loaded firearm in his vehicle

and then into Chavez’ house to facilitate or potentially facilitate his distribution of

methamphetamine. See United States v. King, 

, 656 (10th Cir. 2011)

(stating that loaded firearms are “better suited” to protect drugs than unloaded

firearms); United States v. Winder, 

, 1139 (10th Cir. 2009) (explaining

that carrying firearm from vehicle was “strong evidence of [d]efendant’s willingness

to carry a gun to ‘deter interference’ with his drug[-]dealing pursuits” (quoting

United States v. Banks, 

, 726 (10th Cir. 2006))); United States v. Lott,

, 1248 (10th Cir. 2002) (concluding that purpose of loaded firearm next

to drug paraphernalia “was to provide defense or deterrence in furtherance of” drug-

trafficking crime). Moreover, ATF Agent Jeff Bryan testified regarding the “very

close connection” between firearms and drug distribution and explained that firearms

protect drug distributors from theft and from law enforcement. R. vol. 2, 642.

                                            14
       Nevertheless, Roman asserts the jury couldn’t reasonably infer here that

Roman brought the gun for protection or deterrence purposes because the evidence

showed that (1) Chavez didn’t pay for the methamphetamine, (2) he and Chavez are

friends, (3) he and Chavez have a common interest in firearms, and (4) he allowed

Chavez to handle the AK-47. Roman suggests that this evidence established only that

he brought the AK-47 inside so he could show it to a fellow gun enthusiast. But even

assuming that’s the case, it doesn’t undermine the gun’s potential to facilitate the

distribution. And to support a conviction under § 924(c)(1)(A), “[t]here is no

requirement” that the gun’s potential to facilitate the drug-trafficking crime must “be

the sole reason for the possession of the gun.” 

–59

       Under these circumstances, we conclude the government presented sufficient

evidence to permit the jury to find that Roman possessed the loaded AK-47 in order

to facilitate or potentially facilitate his distribution of methamphetamine to Chavez.

Thus, we affirm his § 924(c)(1)(A) conviction.

III.   Double Jeopardy

       Finally, Roman asserts that in light of the earlier state-court acquittal, the

subsequent federal prosecution violated the double-jeopardy clause. But he concedes

that this challenge is foreclosed by the Supreme Court’s longstanding dual-

sovereignty rule.8 See, e.g., Puerto Rico v. Sanchez Valle, 

, 1870


       8
        We recognize that the Supreme Court has granted certiorari to consider the
constitutionality of the dual-sovereignty rule. See United States v. Gamble, 694 F.
App’x 750 (11th Cir. 2017) (unpublished), petition for cert. granted June 28, 2018
(No. 17-646). But that doesn’t alter our obligation to apply the Court’s current
                                            15
(2016) (explaining that criminal defendant may be prosecuted twice for same offense

so long as prosecutions are “brought by different sovereigns”); Bartkus v. Illinois,

(1959) (holding that acquittal in state court didn’t bar prosecution by

federal government for substantially same crime). Indeed, he raises this argument

only “to preserve it for review by the Supreme Court.” Aplt. Br. 64.

      As Roman acknowledges, we must follow the Supreme Court’s dual-

sovereignty holdings. See United States v. Barrett, 

, 1119 (10th Cir.

2007). We therefore reject his double-jeopardy argument.

                                      Conclusion

      Because evidence of the state-court acquittal wasn’t material, the district court

didn’t violate Roman’s constitutional rights by excluding it. Nor did the district

court’s decision amount to an abuse of discretion; any probative value the acquittal

might have had was outweighed by the risk that it would unfairly prejudice the

government, confuse the issues, and mislead the jury. Moreover, there was sufficient

evidence for the jury to find that Roman possessed the AK-47 in relation to his act of




precedent. See United States v. Lopez-Velasquez, 

, 808 n.1 (5th Cir.
2008) (stating that precedent is binding “even when the Supreme Court grants
certiorari on an issue”).
                                          16
distributing drugs to Chavez. Finally, Supreme Court precedent forecloses Roman’s

double-jeopardy argument. Accordingly, we affirm.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




                                        17