Hearsay Standards for §2K2.1(b)(6)(B) Enhancements and Bar on Collateral Attacks Post-McGirt

Introduction

United States v. Stapp is a published decision of the Tenth Circuit Court of Appeals, handed down on April 15, 2025, affirming the district court’s sentence of 60 months’ imprisonment for Kent Matthew Stapp’s conviction under 18 U.S.C. §§ 922(g)(1), 924(a)(2) for being a felon in possession of a firearm. The key sentencing issues on appeal were:

Whether the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) on the basis that the defendant “possessed any firearm . . . in connection with another felony offense” (unauthorized use of a vehicle);
Whether the hearsay statement of a non-testifying declarant, captured on police body-camera footage, bore sufficient “indicia of reliability” to support that enhancement;
Whether Mr. Stapp’s prior Oklahoma convictions, rendered void by McGirt v. Oklahoma (2020), could still be used to calculate his advisory Guidelines criminal history score, or whether he was entitled to a collateral attack on those convictions.

The Court of Appeals, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), affirmed both aspects of the sentence. In so doing, it clarified (1) the minimal threshold for admissible hearsay at sentencing under the Guidelines and (2) the bar on collateral attacks on predicate convictions used for Guidelines calculation, even post-McGirt.

Summary of the Judgment

The Tenth Circuit first upheld the district court’s finding by a preponderance of the evidence that Mr. Stapp had “taken, used or driven” a vehicle without the owner’s consent, in violation of Okla. Stat. tit. 47, § 4-102, and that his possession of a firearm “in connection with” that felony offense triggered the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). The court rejected Mr. Stapp’s contention—raised for the first time on appeal—that the body-camera-recorded statement of the vehicle’s owner (Ravine) was unreliable hearsay. The panel held that hearsay at sentencing may be considered so long as it has “some minimal indicia of reliability,” a “low hurdle” met here by the declarant’s initial report of the car stolen, the contemporaneous body-camera recording, and the absence of any contradictory testimony.

Second, the court rejected Mr. Stapp’s argument that his 2005 and 2008 Oklahoma convictions—later held void for lack of jurisdiction in McGirt v. Oklahoma—could not count toward his federal Guidelines criminal history. Applying binding precedent (Custis v. United States; United States v. Garcia), the panel ruled that collateral attacks on predicate convictions are not permitted in the sentencing context except for a complete denial of the right to counsel. Because McGirt did not itself provide a mechanism for collateral relief in a federal sentencing, Mr. Stapp’s challenge failed.

Analysis

Precedents Cited

Gall v. United States, 552 U.S. 38 (2007): Standard of review for procedural reasonableness of a sentence.
United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022): Guidelines range calculation principles.
U.S.S.G. § 2K2.1(b)(6)(B) — Application and definition of “in connection with another felony offense.”
United States v. Justice, 679 F.3d 1251 (10th Cir. 2012): “Facilitation” test for firearms enhancements.
U.S.S.G. § 6A1.3 — “Sufficient indicia of reliability” for hearsay at sentencing.
United States v. Cook, 550 F.3d 1292 (10th Cir. 2008): Low hurdle for hearsay reliability in PSRs.
United States v. Browning, 61 F.3d 752 (10th Cir. 1995): Corroboration and indicia of reliability.
United States v. Ruby, 706 F.3d 1221 (10th Cir. 2013): Admissibility of hearsay at sentencing under Rule 32.1.
United States v. Fennell, 65 F.3d 812 (10th Cir. 1995): Rejecting uncorroborated unsworn hearsay at sentencing.
United States v. Leib, 57 F.4th 1122 (10th Cir. 2023): Upholding § 2K2.1(b)(6)(B) based in part on body-camera-recorded hearsay.
McGirt v. Oklahoma, 591 U.S. 894 (2020): Reservation status, jurisdictional impact on state prosecutions for major crimes.
Custis v. United States, 511 U.S. 485 (1994): Bar on collateral attacks at sentencing, absent total denial of counsel.
United States v. Garcia, 42 F.3d 573 (10th Cir. 1994): Collateral attack on predicate convictions impermissible in Guidelines calculation.

Legal Reasoning

1. Hearsay Reliability and §2K2.1(b)(6)(B)
The court reiterated that at sentencing “any relevant information” may be considered so long as it meets the preponderance standard (Gall) and bears “some minimal indicia of reliability” (Cook, Browning). It contrasted Fennell—where an unsworn, uncorroborated telephone interview failed the reliability test—with Leib, where a mother’s body-camera-recorded statement sufficed. Here, Ravine’s body-camera statement was corroborated by her earlier police report of a stolen vehicle, captured contemporaneously, and shown to the court. Under clear-error review, the panel held that finding plausible.

2. Proof of “Another Felony Offense”
U.S.S.G. § 2K2.1(b)(6)(B) applies when the defendant “used or possessed any firearm . . . in connection with another felony offense.” The court accepted the district court’s factual finding—viewing the evidence in the light most favorable to the government—that Mr. Stapp drove a stolen vehicle without the owner’s consent and resisted arrest while armed. His attempt to show permissive use by a co-owner (his brother) was not preserved below and thus waived.

3. Collateral Attacks on Predicate Convictions Post-McGirt
The panel reaffirmed that neither the Sentencing Guidelines nor 18 U.S.C. § 3582(c) provide a vehicle for a collateral attack on state convictions used in federal sentencing, except where the defendant was completely denied counsel. McGirt’s holding that the Creek Reservation was never disestablished does not itself authorize collateral relief in a federal sentencing. Custis and Garcia remain controlling: state convictions, void or not, stand for Guidelines purposes absent constitutionally deficient representation.

Impact

United States v. Stapp provides clarity and persuasive precedent in three areas:

Hearsay at Sentencing: Body-camera recordings of non-testifying declarants, when corroborated and presented under a preponderance standard, easily clear the minimal indicia of reliability required by U.S.S.G. § 6A1.3 and Fed. R. App. P. 32.1.
§2K2.1(b)(6)(B) Enhancements: Sentencing courts may apply a four-level enhancement when a defendant’s firearm possession “in connection with” any felony—including unauthorized use of a vehicle—is proven by a preponderance of the evidence.
Post-McGirt Sentencing Protocol: Defendants may not avoid Guidelines enhancements by asserting their state convictions were voided under McGirt. Absent a fundamental denial of counsel, those convictions remain valid predicates.

Going forward, district courts in the Tenth Circuit can rely on body-cam or other contemporaneous electronic recordings to resolve sentencing disputes, and defense counsel should preserve objections to predicate recidivist convictions at sentencing if they intend to challenge jurisdiction under McGirt.

Complex Concepts Simplified

Preponderance of the Evidence: The standard of proof at sentencing: more likely than not (>50%).
Hearsay: An out-of-court statement offered to prove the truth of the matter asserted. Generally barred at trial but allowed at sentencing if reliable.
Indicia of Reliability: Minimal guarantees that a hearsay statement is trustworthy—e.g., contemporaneous recording, corroborating facts, declarant’s demeanor on video.
“In Connection With”: A guideline enhancement triggers if the firearm “facilitated, or had the potential of facilitating” another felony.
McGirt v. Oklahoma: The Supreme Court held that the Muscogee (Creek) Reservation was never disestablished, depriving state courts of jurisdiction to prosecute certain crimes on reservation land.
Collateral Attack: A defendant’s attempt to challenge a prior conviction’s validity in a new, separate proceeding.

Conclusion

United States v. Stapp affirms that sentencing courts in the Tenth Circuit may rely on corroborated, body-camera-recorded hearsay under a low reliability threshold to impose § 2K2.1(b)(6)(B) enhancements, and it squarely rejects McGirt-based collateral attacks on predicate state convictions in federal sentencing. The decision thus preserves the integrity of the Guidelines’ recidivism framework while endorsing modern evidence-gathering methods. It will guide district courts in weighing sentencing-stage hearsay and in safeguarding long-standing limits on collateral challenges to prior convictions.