United States v. Gardner

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0214p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

-

-

-

No. 07-5947

v.

,

>

-

Defendant-Appellee. -

DANIEL ROY GARDNER,

-

N

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 06-00001—Aleta Arthur Trauger, District Judge.

Argued: April 26, 2011

Decided and Filed: August 12, 2011

Before: GIBBONS and WHITE, Circuit Judges; OLIVER, Chief District Judge.*

_________________

COUNSEL

ARGUED: Blanche Bong Cook, ASSISTANT UNITED STATES ATTORNEY,

Nashville, Tennessee, for Appellant. Jennifer Lynn Thompson, Nashville, Tennessee,

for Appellee. ON BRIEF: S. Carran Daughtrey, Courtney D. Trombly, ASSISTANT

UNITED STATES ATTORNEYS, Nashville, Tennessee, for Appellant. Jennifer Lynn

Thompson, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. The government appeals the district

court’s decision not to apply a fifteen-year mandatory minimum sentence under

18 U.S.C. § 2252A(b)(1) following defendant-appellee Daniel Roy Gardner’s guilty plea

*

The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District

of Ohio, sitting by designation.

1

No. 07-5947 United States v. Gardner Page 2

for receipt and possession of child pornography. For the reasons that follow, we affirm

the district court’s decision.

I.

Gardner, born in Idaho Falls, Idaho, in 1952, left home in 1970 and served in the

United States Navy for twenty-one years. He lived in Chesapeake, Virginia, from 1991

to 1994 and then in Greenbrier, Tennessee, from 1994 to 2002. In 2002, he moved to

Goodlettsville, Tennessee, where he resided at the time of his arrest.

In 1974, Gardner married Candan Yilmazdalay, with whom he had a daughter,

Pride. Pride suffered from neurofibrosarcoma, a condition in which tumors develop in

cells surrounding the peripheral nervous system. Pride battled the condition from

infancy and ultimately died of it in 1998.

On April 20, 2005, computer security equipment at RenTech, Inc., a data

processing company located in Nashville, Tennessee, detected the presence of child

pornography on the company’s computer network. The child pornography was traced

to Gardner’s office computer, and the FBI was notified. Six days later the FBI visited

Gardner at his home, where he consented to a search. Agents seized over 600 images

and forty-nine videos of minors engaged in sexually explicit conduct or being sexually

abused while held in bondage. After agents advised him of his Miranda rights, Gardner

confessed to downloading the pornographic material, for which he said he had “a need,

maybe an addiction.”

Prior to searching Gardner’s house, Craig Dickhaus, a special agent in the violent

crimes task force for the United States Immigration and Customs Enforcement (“ICE,”

formerly the United States Customs Service), ran a criminal background check on

Gardner and discovered that he had a previous arrest for aggravated sexual battery and

a conviction for sexual battery in Virginia. An official at RenTech confirmed the

Virginia conviction to Dickhaus and stated that the victim was Gardner’s daughter,

Pride. When Dickhaus questioned Gardner about the Virginia conviction, he allegedly

stated: “Unfortunately our daughter was the sexual—object of my sexual desire at the

No. 07-5947 United States v. Gardner Page 3

time.” Gardner also told Dickhaus that his daughter was between fifteen and seventeen

years old at the time.

Federal investigators began to search for files related to Gardner’s Virginia

conviction. Because most of the files had been destroyed, initially the investigators were

able to locate only copies of an indictment and a judicial order of conviction from the

Circuit Court of Chesapeake, Virginia. The indictment, which referenced docket number

92-821, stated:

On or about December 21, 1991, in the City of Chesapeake, Virginia, the

accused, Daniel Ray Gardner, then being over the age of eighteen years,

maintaining a custodial or supervisory relationship over a child under the

age of eighteen, not legally married to such child with lascivious intent,

did knowingly and intentionally sexually abuse such a child, in violation

of Section 18.2-370.1 of the Virginia Code.

The indictment charged Gardner with violating Section 18.2-370.1 of the Virginia Code,

“Taking indecent liberties with child by person in custodial or supervisory relationship.”

Va. Code. Ann. § 18.2-370.1. The judicial order, which referenced docket number 92-

821, stated that Gardner was charged with “aggravated sexual battery” and found

Gardner guilty of “sexual battery.” The judicial order also noted that a pre-sentence

report had been prepared, presented to the state circuit court, and given to Gardner’s

counsel who had the right “to cross-examine the Probation Officer as to any matter

contained in the said report and to present any additional facts bearing upon the matter

as they desired to present.” Following cross-examination of the probation officer and

Gardner’s presentation of additional facts, the state circuit court accepted the pre-

sentence report and suspended sentence upon Gardner’s good behavior for one year.

Federal authorities indicted Gardner on January 6, 2006, for knowingly receiving

and possessing child pornography. The indictment mentioned that Gardner had “a prior

conviction under the laws of the state of Virginia for a crime related to sexual abuse and

sexual conduct involving a minor.” The indictment referenced 18 U.S.C. § 2252A(b)(1),

which provides an enhanced minimum sentence of fifteen years for persons receiving

or possessing child pornography who “ha[ve] a prior conviction . . . under the laws of

No. 07-5947 United States v. Gardner Page 4

any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor or ward.” 18 U.S.C. § 2252A(b)(1).

As the case proceeded through pre-trial motions, however, practically no

additional evidence of Gardner’s prior Virginia conviction was unearthed. This lack of

evidence prompted Gardner to file a motion on November 6, 2006, to strike reference

to the previous conviction because the Virginia pre-sentence report and plea-colloquy

had been destroyed, and the only other evidence found up to that point—notably a report

from the division of police—was not evidence the government could use to justify a

sentence enhancement under Shepard v. United States, 544 U.S. 13 (2005).

The government responded on November 27, 2006, that Gardner’s motion was

premature. Then, at a hearing on December 5, 2006, the government’s attorney

announced that “the Circuit Court in Chesapeake, Virginia . . . actually does have a

sealed record of the defendant’s case. Particularly, it contains the probation report that

is specifically referenced in . . . [the] order from 1994.” The district court took no action

on the motion to strike at that time, but the district court announced that it would

look to . . . any transcript of the plea colloquy, any plea agreement where

he pled to this, and I’m not quite sure about a probation record.

It will really depend on what the probation record was whether

that particular record contains the relevant admissions by the defendant

to the probation officer where—whether I feel that this record was relied

on and kind of imported into the order where the judge found him guilty

of sexual battery.

This order very carefully keeps out the aspect of a minor, that this

was a battery of a minor; in my view, very carefully keeps out, and that’s

not what he pled to.

And so I think this is a very fine line that the Court must walk,

and I want to make sure that I do it correctly. And you’re telling me that

there are more records, and so I really don’t think I can decide this issue

today.

The Virginia pre-sentence report (“VA PSR”) arrived, and upon examination, the

parties learned that the report contained information relevant to determining the facts

underlying Gardner’s previous conviction. Specifically, the VA PSR, quoting the report

from the division of police, narrated the alleged offense:

No. 07-5947 United States v. Gardner Page 5

According to Chesapeake Police file material, on January 5, 1992, Pride

Gardner reported to Diana Hack a Child Protective Service Worker that

her father, the subject, had been massaging her body all over including

her breast and vaginal area with lotion. She further indicated that on

occasion he had shaved her pubic area stating that she had too much hair

around her vagina.

Still quoting the division of police report, the VA PSR also stated that Gardner said:

I turned myself in to family advocacy Portsmouth Naval Hospital. I was

told to call Child Protective Services. I then called Social Services and

made an appointment to give a statement. I was directed to move from

the residence by the weekend and did so. I scheduled an arrest date with

Detective Moore. I have been attending individual therapy, marriage

counselling [sic] and family therapy since disclosure in January 92.

The VA PSR noted that Gardner was charged with “Aggravated Sexual Battery” but

found guilty of “Indecent Liberties With a Child Custodian.” Significantly, this is

different from the “Sexual Battery” of which the judicial order stated that he was found

guilty.

Gardner pled guilty to receipt and possession of child pornography on

February 15, 2007. During the plea hearing, however, Gardner’s attorney made clear

that he would contest sentence enhancement factors, including the prior conviction

enhancement: “in addition, your Honor, . . . we had objected to the prior conviction for

a sexual offense against a minor, and we just want to make the record clear that although

he’s pleading guilty to the indictment . . . we intend to dispute that fact.”

Before sentencing, a federal Pre-Sentence Report (“PSR”) was prepared for the

federal case. The PSR noted Gardner’s Virginia conviction and incorporated facts from

the VA PSR. The PSR found that the minimum sentence provision of 18 U.S.C.

§ 2252A(b)(1) applied and recommended a 180-month sentence. After Gardner objected

to this part of the PSR, the government filed its Sentencing Memorandum and defended

application of the fifteen-year minimum sentence. The government cited the facts

contained in the VA PSR and quoted the judicial order confirming Gardner’s Virginia

conviction in which the state Circuit Court judge noted, “[t]he report of the Probation

No. 07-5947 United States v. Gardner Page 6

Officer is hereby filed as a part of the record in this case.” Therefore, according to the

government, “[b]y officially incorporating the VA PSR into his order, the sentencing

judge adopted the facts therein, without objection from the defense.” The government

concluded by arguing that the district court could permissibly look to the VA PSR to see

if a prior conviction would qualify to justify a sentence enhancement.

The district court disagreed. In a hearing on the matter, the district court noted

that

there’s quite a bit of confusion about this conviction in terms of dates and

in terms of charges.

There’s statements here, supposedly by the judge, who states that

Mr. Gardner was convicted of sexual assault, sexual battery. And then

there are documents that contradict that attached to your most recent

filing . . . . [The Virginia pre-sentence report] says the offense of

conviction is indecent liberties with a child . . . .

And then you have got the judge saying that it was sexual battery,

but that doesn’t appear to be what the conviction was . . . .

So I’m, to be honest, quite confused by these documents. It

seems to me they say contradictory things and the dates as well. There’s

even contradiction on the dates.

The district court then declined to apply the fifteen-year minimum sentence:

[T]he documentary evidence before me on this conviction is entirely

contradictory and unclear. The government wants to rely both on the

judge’s order, which says that the defendant is guilty of sexual battery,

and now a presentence report which clearly says that he was found guilty

of indecent liberties with a minor. I don’t know what he was found

guilty of from this record.

And given the draconian nature of a 15-year minimum mandatory

sentence, I have to be totally and completely convinced that this

minimum mandatory applies, and I am not satisfied.

These documents are contradictory, unclear, both as to the

offense, the dates, and everything else. And it’s simply not established

to my satisfaction. So I’m going to rule that the 15-year minimum

mandatory enhancement does not apply.

The district court ultimately sentenced Gardner to 108 months’ imprisonment.

No. 07-5947 United States v. Gardner Page 7

II.

This court reviews de novo a district court’s legal conclusion that a prior

conviction triggers a mandatory minimum sentence. United States v. McGrattan, 504

F.3d 608, 610 (6th Cir. 2007). However, while a district court’s sentencing calculation

is reviewed de novo, its factual findings are reviewed for clear error. United States v.

Cole, 359 F.3d 420, 425 (6th Cir. 2004). “[F]or purposes of determining the Guidelines

recommendation, we continue to accept a district court’s factual finding[s] . . . unless

[they are] clearly erroneous.” United States v. Davidson, 409 F.3d 304, 310 (6th Cir.

2005) (affirming the clearly erroneous standard of review following United States v.

Booker, 543 U.S. 220 (2005)). Under the clearly erroneous standard, a reviewing court

“will not reverse a lower court’s finding of fact simply because [it] would have decided

the case differently. Rather . . . [the] reviewing court must ask whether on the entire

evidence it is left with the definite and firm conviction that a mistake has been

committed.” United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (internal

quotations and citations omitted).

III.

We first address whether the Virginia judicial order of conviction and indictment

are sufficient to justify imposing a sentence enhancement as a matter of law. Because

our precedent holds that, when a defendant pleads to a lesser-included offense of the

offense charged in the indictment, we may consider only the parts of the indictment

“essential to the offense to which [the] defendant entered his plea,” United States v.

Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995), we find that the indictment and judicial

order alone do not trigger the mandatory minimum sentence.

Under 18 U.S.C. § 2252A(b)(1), whoever possesses or receives child

pornography, “if such person has a prior conviction . . . under the laws of any State

relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving

a minor or ward,” shall be “imprisoned for not less than 15 years.” At issue here is

whether Gardner has a prior conviction in Virginia for sexual abuse involving a minor

that should trigger the mandatory minimum.

No. 07-5947 United States v. Gardner Page 8

In Shepard, in analyzing the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), the United States Supreme Court stated that, when considering whether a crime

to which a defendant has previously pled guilty qualifies under the ACCA, a later court

is “generally limited to examining the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” 544 U.S. at 16. Later in the opinion, in a

reprise of the list, Justice Souter added “or to some comparable judicial record of this

information.” Id. at 26. The limitation on what evidence can be considered stems from

the desire “to avoid serious risks of unconstitutionality.” Id. at 25 (Souter, J., plurality

opinion). Prior to Shepard, the Supreme Court had stated that when the prior conviction

in question was based on a jury conviction, courts generally “look only to the fact of

conviction and the statutory definition of the prior offense.” Taylor v. United States, 495

U.S. 575, 602 (1990). However, Taylor permits a court to look at the indictment if the

indictment shows “that the defendant was charged only with” the qualifying conduct.

Id.; see also McGrattan, 504 F.3d at 611.

We adopted the logic and limitations of Shepard and its lineage in McGrattan.

The McGrattan court found that “the underlying concern is the protection of the

defendant’s jury trial right under the Sixth and Fourteenth Amendments,” and that “[t]he

difference in the statutory language of section 924(e) and section 2252A(b)(1) is

immaterial in the constitutional context.” 504 F.3d at 612. Accordingly, we “begin our

analysis of . . . section 2252[A](b)(1) case[s] by examining whether the statute of

conviction falls within the four corners of the federal statute. If that process is not

conclusive, we will examine available documents permissible under Shepard and

Taylor.” Id.1

1

The government argues that we should not follow the Shepard approach because the language

of § 924(e) is more restrictive than that of § 2252A(b)(1). The government reasons that this case can be

distinguished from McGrattan because McGrattan dealt with an Ohio conviction for possession of child

pornography while this case deals with a conviction related to sexual abuse.

This is a distinction without a difference. The § 2252A enhancement for prior convictions for

child pornography follows the same “related to” language as that of prior convictions for sexual abuse.

The McGrattan court explicitly considered § 2252A(b)(1) and found that the constitutional concerns cited

in Shepard apply. We therefore find that Shepard and McGrattan govern what evidence may be considered

in this case.

No. 07-5947 United States v. Gardner Page 9

The judicial order states that Gardner was found guilty of sexual battery. In

Virginia at the time, a defendant committed sexual battery if he “sexually abuse[d] the

complaining witness against the will of the complaining witness, by force, threat or

intimidation, or through the use of the complaining witness’s mental incapacity or

physical helplessness.” Walker v. Commonwealth, 404 S.E. 2d 394, 396 (Va. Ct. App.

1991) (quoting Va. Code. Ann. § 18.2-67.4, as of 1991). The statute of conviction does

not require, as an element of the offense, that the complaining witness be a minor; thus,

the statute itself does not justify a sentence enhancement.

Pursuant to McGrattan, because the statute of conviction is not conclusive, we

next turn to the documents permitted under Shepard and Taylor. 504 F.3d at 612.

Shepard permits a reviewing court to look to “the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.” 544 U.S. at 16 (emphasis

added). No record of a plea agreement or plea colloquy from Gardner’s Virginia

conviction has been offered, but the government did produce a judicial order stating

Gardner was found guilty of sexual battery and an indictment stating that Gardner,

“maintaining a custodial or supervisory relationship over a child under the age of

eighteen . . . did knowingly and intentionally sexually abuse such child.”

From the face of the indictment, it is apparent that the complaining witness was

a minor, “a child under the age of eighteen.”2 Moreover, the indictment charges Gardner

with sexually abusing a minor, and an element of sexual battery—for which Gardner was

convicted—is that the accused “sexually abuses the complaining witness.” See Walker,

404 S.E. 2d at 396. Therefore, examination of the indictment and judicial order, as

permitted by Shepard, suggests that Gardner “has a prior conviction . . . relating to

sexual abuse . . . involving a minor.” 18 U.S.C. § 2252A(b)(1).

However, we have further restricted a reviewing court’s scope of examination

of an indictment. In United States v. Arnold, a post-Taylor but pre-Shepard case, a

2

A minor at the time was defined as someone under the age of eighteen years. Va. Code. Ann.

§ 1-13.42 (1991), amended by 2005 Va. Legis. Serv. 839 (West).

No. 07-5947 United States v. Gardner Page 10

defendant charged with aggravated sexual assault pled nolo contendere to assault with

intent to commit sexual battery. 58 F.3d 1117, 1124 (6th Cir. 1995). Because assault

with intent to commit sexual battery included both violent and fraudulent behavior, id.

at 1122, the Arnold panel, citing Taylor, remanded the case with instructions to the

district court to “limit its examination to only those charges in the indictment that are

essential to the offense to which defendant entered his plea.” Id. at 1124. Post-Shepard,

we again embraced the Arnold logic. In United States v. Armstead, a case involving a

potential enhancement under the ACCA, a defendant was indicted for aggravated child

abuse but pled guilty only to attempted child abuse. 467 F.3d 943, 949 (6th Cir. 2006).

The Armstead court limited its examination of the original indictment to “the elements

of the charges that are essential to defendant’s plea of guilty to attempted child abuse.”

Id. Even though the indictment stated Armstead’s neglect resulted in “serious bodily

injury, to wit: burns to the body,” because attempted child abuse does not necessarily

include such injury, the panel did not permit consideration of the charges in the

indictment and remanded the case for further proceedings. Id. at 950.

We find that Gardner’s case is analogous to Armstead. Because he pled only to

“sexual battery,” and because the victim need not be a minor to support a conviction for

sexual battery, the references in the indictment suggesting the victim was a minor are not

“essential to the offense to which [Gardner] entered his plea.” Therefore, under

Armstead, such references must be disregarded.

Although under Shepard alone the statute of conviction and charging document

together establish that Gardner’s prior conviction triggers the mandatory minimum,

when references to the victim’s age are removed, as required by Arnold and Armstead,

neither the statute nor the charging document establishes that Gardner’s prior conviction

necessarily related to conduct involving a minor or ward. Accordingly, we find that the

judicial order of conviction and indictment are insufficient to trigger a sentence

enhancement as a matter of law.

No. 07-5947 United States v. Gardner Page 11

IV.

Having found the judicial order and indictment insufficient, we now consider

whether the VA PSR may justify the enhancement. The government argues that a

reviewing court may consider the VA PSR because the report is “a comparable judicial

record” of Gardner’s criminal conviction. Shepard specifically permitted consideration

of “any explicit factual finding by the trial judge to which the defendant assented,” 544

U.S. at 16, and later “some comparable judicial record of [the information found in the

indictment, plea agreement, and plea colloquy].” Id. at 26. The government cites the

judicial order’s statement that Gardner had a chance to contest the VA PSR as evidence

that the Sixth and Fourteenth Amendment concerns cited in McGrattan do not apply.

This court has previously limited the use of PSRs to justify sentence

enhancements. In United States v. Bartee, 529 F.3d 357, 359–61 (6th Cir. 2008), having

noted that police reports and criminal complaint applications are not permissible

Shepard documents, we precluded consideration of a PSR that included information

from such sources because the defendant had not pled guilty to a crime that necessarily

required proof of the facts listed. Later, when asked to find that a PSR is “a comparable

judicial record” under Shepard, we drew on Bartee to find that “a district court’s use of

the factual description of a prior conviction contained in a PSR . . . does ‘not adhere to

the dictates of Taylor and Shepard.’” United States v. Wynn, 579 F.3d 567, 575–76 (6th

Cir. 2009) (quoting Bartee, 529 F.3d at 361). Having precluded use of the factual

recitations in a PSR to justify a sentence enhancement, the Wynn court concluded that

PSRs are non-Shepard documents, id. at 576, a finding that the court noted was

consistent with Shepard and Taylor because “a PSR prepared for a federal district-court

sentencing can never be a record of a convicting state court.” Id. at 577.

Although in this case the government requests permission to use the factual

recitations contained in a state PSR, rather than a federal PSR, we find that the logic of

Bartee and Wynn extends to Gardner’s case. Bartee and Wynn both limited

consideration of federal PSRs because the facts in the PSRs were not required to sustain

the defendants’ convictions and were never necessarily admitted by the defendants. The

No. 07-5947 United States v. Gardner Page 12

same circumstances exist here, and we see no reason that a state PSR should be

permissible under Shepard when a federal PSR would not be.3

The government would have us distinguish Bartee and Wynn by finding that

Gardner specifically assented to the facts in the VA PSR. At first glance, the judicial

order appears to confirm this view. However, for the VA PSR to be considered under

Shepard, it must be an “explicit factual finding by the trial judge to which the defendant

assented.” 544 U.S. at 16. Gardner contests whether he assented to the VA PSR

presented to the district court by arguing that there “is no documentation to show that

[he] or his counsel reviewed this ‘presentence’ report.”

The district court found that the validity of the VA PSR was too questionable for

it to serve as the factual predicate for a sentencing enhancement. Before the VA PSR

was received, the district court noted that the judicial order “very carefully keeps out . . .

that this was a battery of a minor.” Ultimately, the district court decided there were too

many apparent contradictions and inconsistencies between the Virginia PSR and the

judicial order to establish that the documents submitted were ones to which Gardner

assented. We find it was not clearly erroneous for the district court to make such a

finding.

There are some inconsistencies between the VA PSR and the judicial order. The

VA PSR states that Gardner was charged with “Aggravated Sexual Battery” and

convicted of “Indecent Liberties with a Child,” but the judicial order finds Gardner

guilty of “sexual battery.” The VA PSR states that the matter would be heard and

sentencing completed on August 24, 1992, but the judicial order was not entered until

April 5, 1994.

3

We also note that because our precedent holds that the facts of an indictment may not be

considered unless those facts are “essential to the offense to which [the] defendant entered his plea,”

Armstead, 467 F.3d at 949, it would be anomalous to permit the facts of a PSR alleging both a charge and

a conviction greater than the offense to which Gardner pled. Consistency with Armstead and Bartee

suggests we should not permit consideration of PSRs detailing facts and offenses greater than those to

which a defendant has pled or necessarily admitted.

No. 07-5947 United States v. Gardner Page 13

Additionally, the VA PSR and the judicial order contain elements that concern

us. First, there is no official stamp on the VA PSR to show it was ever filed with the

court, much less reviewed by the judge or assented to by Gardner. Second, the judicial

order of April 1994 states that there were “matters brought out on cross-examination of

the Probation Officer and such additional facts as were presented by the defendant,” but

because the VA PSR dates to August 1992—prior to the hearing referenced in the

judicial order or listed by the report—the “matters brought out on cross-examination”

and the “additional facts” presented by Gardner are almost certainly missing. This

strongly suggests that Gardner did not assent to the report received by the district court.

When reviewing a district court’s factual findings for clear error, we overturn the

district court’s decision only if “on the entire evidence [we are] left with the definite and

firm conviction that a mistake has been committed.” Orlando, 363 F.3d at 603. Rather

than establishing a firm conviction that a mistake has been made, we find that the record

shows the district court was correct to find the VA PSR unreliable. We therefore affirm

the district court’s ruling that the VA PSR cannot be used to justify a sentence

enhancement.

Without the VA PSR, there is no record showing Gardner was convicted of a

crime related to sexual abuse of a minor. Because a PSR is not automatically a Shepard

document, and because there is not adequate evidence that Gardner assented to the facts

contained in the VA PSR, we affirm the district court’s decision not to apply an

enhancement to Gardner’s sentence.

V.

For the foregoing reasons, we affirm the district court’s decision.