United States v. Stapp: Standards for Firearm Enhancement Under §2K2.1(b)(6)(B) and the Limits of McGirt-Based Collateral Attacks

Introduction

United States v. Stapp, No. 24-7009 (10th Cir. Apr. 15, 2025), concerns the procedural reasonableness of a 60-month federal sentence imposed on Kent Matthew Stapp, a convicted felon found in possession of a firearm. The district court applied a four-level sentencing enhancement under U.S.S.G. §2K2.1(b)(6)(B) based on Stapp’s possession of a gun “in connection with another felony offense,” namely unauthorized use of a vehicle. Stapp objected, arguing (1) the enhancement rested on unreliable hearsay and insufficient proof that he lacked the owner’s consent to drive the car, and (2) his prior Oklahoma convictions—used to calculate his criminal history category—were void under McGirt v. Oklahoma (2020) and thus could not be counted. The Tenth Circuit affirmed, holding that the hearsay bore minimal indicia of reliability, that the government carried its burden on the enhancement elements, and that Guidelines policy precludes collateral attacks on old state convictions even post-McGirt.

Summary of the Judgment

The Tenth Circuit exercised jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. §3742(a).
It affirmed the district court’s four-level enhancement under U.S.S.G. §2K2.1(b)(6)(B), finding that:

the victim-owner’s body-camera statement—admitting she did not consent to Stapp’s taking of her vehicle—had sufficient indicia of reliability for sentencing purposes;
the government proved by a preponderance of the evidence that Stapp took and drove the car without the owner’s consent;
Stapp’s possession of the firearm “in connection with” that separate felony offense was properly found under the “emboldening” facilitation standard.

It rejected Stapp’s argument that his pre-McGirt state convictions must be stricken from his criminal history, holding that the Sentencing Guidelines disallow collateral attacks on prior convictions except in rare instances of counsel denial.
The court affirmed the advisory range of 57–71 months and Stapp’s 60-month within-Guidelines sentence.

Analysis

1. Precedents Cited

Gall v. United States, 552 U.S. 38 (2007): procedural‐reasonableness standard for sentencing reviews.
United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022): reaffirming clear‐error review of Guidelines calculations.
United States v. Leib, 57 F.4th 1122 (10th Cir. 2023): minimal-indicia test for hearsay at sentencing, emphasizing body-camera evidence.
United States v. Cook, 550 F.3d 1292 (10th Cir. 2008), and Wright lineage: hearsay “low hurdle” reliability standard under U.S.S.G. §6A1.3(a).
United States v. Fennell, 65 F.3d 812 (10th Cir. 1995): contrasting unreliability when no corroboration or firsthand observation.
McGirt v. Oklahoma, 591 U.S. 894 (2020): Indian-country jurisdiction over major crimes and voiding of certain state court convictions.
United States v. Garcia, 42 F.3d 573 (10th Cir. 1994), and Custis v. United States, 511 U.S. 485 (1994): limits on collateral attacks of predicate convictions in sentence enhancement contexts.

2. Legal Reasoning

a. Hearsay Reliability At sentencing, a district court may consider “any information . . . relevant” so long as it is reliable by a “preponderance of the evidence” and bears “some minimal indicia of reliability.” Here, state‐officer body-camera footage captured Ms. Ravine’s firsthand assertion that she did not consent to Stapp’s use of her car—and had reported it stolen. The Tenth Circuit found this more reliable than the unsworn, uncorroborated phone interview in Fennell. Coupled with the prior police report of “stolen” status, the hearsay easily cleared the “low hurdle” of corroboration and firsthand observation recognized in Cook, Ruby, and Leib.

b. §2K2.1(b)(6)(B) Enhancement To impose the four-level enhancement, the government must prove: (1) the defendant possessed a firearm; (2) “in connection with” another felony offense; (3) that felony. “‘In connection with’” requires that the weapon facilitated or had the potential to facilitate the crime. The district court relied on the scuffle evidence—Stapp reaching for the gun while resisting arrest—to find facilitation. For the predicate felony, Oklahoma’s unauthorized‐use statute demands proof that the defendant drove or used the vehicle “without consent of the owner” and with intent to deprive. Viewing all evidence in the light most favorable to the court, the Tenth Circuit held the body-camera statement plus the stolen-vehicle report sufficed to prove non‐consent by a preponderance.

c. McGirt and Collateral Attack Doctrine Under McGirt, certain 2005–2008 Oklahoma convictions within the Creek Reservation became void for want of state-court jurisdiction. Stapp argued those convictions could not count toward his Guidelines criminal history. The panel held that neither the Guidelines nor Supreme Court precedent (Custis) permits a defendant to collaterally attack prior convictions in a sentencing proceeding—apart from a complete denial of counsel. This rule remains intact despite McGirt’s voiding effect on state prosecutions in Indian country.

3. Impact

• This decision clarifies that sentencing courts in the Tenth Circuit may rely on recorded hearsay statements—so long as they bear minimal indicia of reliability through firsthand capture and corroboration—to support Guidelines enhancements.

• It reaffirms the broad scope of procedural reasonableness review, emphasizing deference to district court findings unless “simply not plausible.”

• By insulating pre-McGirt convictions from collateral attack at sentencing, the ruling limits the downstream impact of McGirt on federal sentencing. Defendants cannot purge long-standing state records from their Guidelines history absent direct Supreme Court authorization.

Complex Concepts Simplified

Minimal indicia of reliability: A loose standard requiring only basic guarantees—such as recording, contemporaneous documentation, or other corroboration—so hearsay may support sentencing decisions.
Preponderance of the evidence: A lower proof standard than “beyond a reasonable doubt,” meaning “more likely than not” (over 50%).
“In connection with” enhancement: A firearm “facilitates” another crime if it emboldens the user or makes resistance to law enforcement easier.
Collateral attack: A defendant’s challenge to a prior conviction’s validity in order to avoid its use in a sentence enhancement, generally disallowed under current Guidelines policy.
McGirt’s jurisdictional holding: Recognizes Creek Reservation boundaries as undiminished, voiding certain state prosecutions for major crimes—but not automatically erasing those convictions from federal sentencing calculations.

Conclusion

United States v. Stapp solidifies three key principles in the Tenth Circuit’s sentencing jurisprudence:

Recorded hearsay with basic corroboration may undergird Guidelines enhancements when it bears minimal indicia of reliability.
Section 2K2.1(b)(6)(B) enhancements require only a preponderance showing of possession “in connection with” another felony, and appellate review will not disturb plausible district court findings.
Even post-McGirt, defendants cannot collaterally attack old state convictions in federal sentencing to reduce their criminal history score, except in cases of a total denial of counsel.

Together, these holdings reinforce deference to district court sentencing determinations, tighten the scope of meaningful appellate review, and underscore the limited reach of McGirt’s jurisdictional remedy in the Guidelines context.