FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 23-329
                                              D.C. No.
            Plaintiff - Appellee,
                                           4:22-cr-00208-
                                               JST-1
 v.

CENIOUS BREWSTER,

OPINION

            Defendant - Appellant.

      Appeal from the United States District Court
        for the Northern District of California
        Jon S. Tigar, District Judge, Presiding

          Argued and Submitted July 16, 2024
              San Francisco, California

                Filed September 12, 2024

Before: Milan D. Smith, Jr., Mark J. Bennett, and Anthony
              D. Johnstone, Circuit Judges.

                Opinion by Judge Bennett
2                        USA V. BREWSTER


                          SUMMARY*


                         Criminal Law

    The panel affirmed a sentence imposed following the
defendant’s guilty plea to one count of being a felon in
possession of a firearm.
    The panel held that the district court properly applied an
enhancement under U.S.S.G. § 3C1.2 for reckless
endangerment during flight. Assuming without deciding that
the guideline requires that a defendant’s flight endanger a
specific person, the panel concluded that the district court
did not clearly err in finding that the defendant’s flight put
at least one motorist at substantial risk of serious bodily
injury.
    The panel held that the defendant forfeited any argument
that the district court misunderstood his requested downward
departure.
    The defendant argued that the district court violated his
due process rights by finding that data from the Sentencing
Commission’s Judiciary Sentencing INformation (JSIN)
online tool was sufficiently reliable to consider at
sentencing. The panel held that the district court did not err,
much less clearly err, in finding that the JSIN data was
reliable. The JSIN data came from a reliable source and was
designed specifically for judges to use during sentencing to
fulfill their obligations under 

(a)(6) to
consider the need to avoid unwarranted sentence disparities.

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      USA V. BREWSTER                       3


The JSIN data was also corroborated by other unchallenged
evidence. The defendant offered no evidence to contradict or
materially undermine JSIN’s reported average and median
sentences, and the district court did not abuse its discretion
in denying an evidentiary hearing on the reliability of the
data.
    The panel explained why it rejected the defendant’s
motion for supplemental briefing on whether his conviction
violated the Second Amendment under New York State Rifle
& Pistol Ass’n, Inc. v. Brown, 

 (2022): the
defendant could have raised his Bruen-based challenge in the
district court, and offered no good cause supporting why he
failed to do so.



                        COUNSEL

Simon de Carvalho (argued), Attorney; Ismail J. Ramsey,
United States Attorney; United States Department of Justice,
Washington, D.C.; Andrew Paulson, Assistant United States
Attorney, United States Department of Justice, Office of the
United States Attorney, Oakland, California; Merry J. Chan,
Assistant United States Attorney, United States Department
of Justice, Office of the United States Attorney, San
Francisco, California; for Plaintiff-Appellee.
Steven G. Kalar (argued), Kalar Law Office, Berkeley,
California, for Defendant-Appellant.
4                      USA V. BREWSTER

OPINION

BENNETT, Circuit Judge:

    Appellant, Cenious Brewster, led officers on a high-
speed chase, which was recorded on the officers’ dashcam.
Brewster crashed into a building shortly after the chase
began. He was arrested, and a firearm was found in his
vehicle. Brewster pleaded guilty to one count of being a
felon in possession of a firearm, and the district court
sentenced him to 46-months’ imprisonment.
    Brewster challenges his sentence, arguing that the
district court (1) erred in applying the reckless endangerment
during flight enhancement under the United States
Sentencing         Guidelines       (“U.S.S.G.”)       § 3C1.2;
(2) misunderstood his request for a downward departure
based on circumstances that allegedly justified his flight; and
(3) violated his due process rights by finding that data from
the Sentencing Commission’s Judiciary Sentencing
INformation (“JSIN”) online tool was sufficiently reliable to
consider at sentencing. We have jurisdiction under 

 and 

, and we affirm. We
also explain why we rejected Brewster’s motion for
supplemental briefing on whether his conviction violated the
Second Amendment under New York State Rifle & Pistol
Ass’n, Inc. v. Bruen, 

 (2022).
                              I
    Around midnight on June 4, 2021, two California
Highway Patrol (“CHP”) officers saw a car pass their patrol
vehicle at a high rate of speed. The car, which was being
driven by Brewster, appeared to be traveling more than 100
miles per hour in a fifty-miles-per-hour zone. The officers
                         USA V. BREWSTER                           5


followed Brewster, who made several unsafe lane changes.
After the officers activated their lights, Brewster exited the
freeway and came to a stop.
    The officers exited their vehicle and shouted to Brewster
to turn off the car. Brewster failed to comply and instead
took off, making a sudden U-turn across multiple lanes. The
officers got back into their vehicle and pursued Brewster.
The dashcam video shows an approaching vehicle stop,
apparently to avoid hitting Brewster and the pursuing
officers. Less than twenty-five seconds after the chase
began, Brewster drove over a raised center median and
crashed into a vacant part of a building and an electronic
crosswalk signal at an intersection. Moments after the crash,
the video shows a car at that intersection with its headlights
on.
    Brewster tried to escape on foot but was eventually
arrested. At the time of his arrest, Brewster had six adult
felony convictions, including for burglary, robbery, a hit and
run resulting in death or injury, and recklessly evading
arrest. The officers found a loaded Beretta 9mm handgun on
the driver’s side floorboard of Brewster’s car. Based on the
handgun and his prior felonies, the government charged
Brewster with one count of being a felon in possession of a
firearm, in violation of 

(g)(1). Brewster
pleaded guilty.
    The Amended Presentence Investigation Report (“PSR”)
calculated Brewster’s total offense level to be fifteen. The
PSR used U.S.S.G. § 2K2.11 to establish the base offense
level, and applicable adjustments included a two-level

1
  U.S.S.G. § 2K2.1 sets forth the base offense level for the unlawful
receipt, possession, or transportation of firearms or ammunition.
6                        USA V. BREWSTER


enhancement for reckless endangerment during flight under
U.S.S.G. § 3C1.2. Based on the total offense level of fifteen
and Brewster’s criminal history category of VI, the PSR
calculated a guidelines range of 41 to 51 months.
    At the district court’s request, the PSR also included
comparative sentencing data from the Sentencing
Commission’s JSIN tool. The JSIN tool is a publicly
available “online sentencing data resource specifically
developed with the needs of judges in mind,” as it “provides
quick and easy online access to sentencing data for similarly
situated defendants, including the types of sentences
imposed and average and median sentences.” U.S. Sent’g
Comm’n,       2021       Annual      Report     9     (2021),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2021/2021-
Annual-Report.pdf [https://perma.cc/4Y2K-RWPP] (“2021
Annual Report”). “The JSIN tool enables a user to obtain
information about offenders sentenced under the same
primary guideline,[2] and with the same Final Offense Level
and Criminal History Category selected, for the past five
fiscal years.” U.S. Sent’g Comm’n, Judiciary Sentencing
Information,     https://www.ussc.gov/guidelines/judiciary-
sentencing-information      [https://perma.cc/Y9Y3-JHMP].
The tool was used more than 3,500 times in the first four



2
  The “primary guideline” is the “guideline that produces the highest
adjusted Final Offense Level based on the Base Offense Level, all
applicable Specific Offense Characteristics, and Chapter Three
Adjustments prior to the application of multiple count units.” U.S.
Sent’g       Comm’n,      Judiciary       Sentencing      Information,
https://www.ussc.gov/guidelines/judiciary-sentencing-information
[https://perma.cc/Y9Y3-JHMP].
                           USA V. BREWSTER                              7


months after its launch in September 2021.3 2021 Annual
Report at 9.
    The PSR included this JSIN data:

         During the last five fiscal years (FY2017-
         2021), there were 495 offenders whose
         primary guideline was §2K2.1, with a Final
         Offense Level of 15 and a Criminal History
         Category of VI, after excluding offenders
         who received a §5K1.1 substantial assistance
         departure. For the 490 offenders (99%) who
         received a sentence of imprisonment in
         whole or in part, the average length of
         imprisonment imposed was 45 month(s) and
         the median length of imprisonment imposed
         was 42 month(s).

    Brewster raised several objections to the PSR. As
relevant here, he argued that the enhancement for reckless
endangerment during flight was inapplicable because it
requires that an actual person other than the defendant be put

3
  In March 2023 the Federal Judicial Center began a two-year pilot study
of the effect of JSIN data in presentence investigation reports. U.S.
Courts, Judiciary Studies of Online Tool in Presentence Reports (Apr.
28,    2023),     https://www.uscourts.gov/news/2023/01/25/judiciary-
studies-use-online-tool-presentence-reports     [https://perma.cc/FRN8-
VFKF]. Thirty-one districts were selected for the pilot group, including
two from the Ninth Circuit: the Eastern and Western Districts of
Washington. Id. In the pilot districts, “probation officers will include
information from the JSIN tool in their presentence reports for two years,
beginning on March 27.” Id. “In districts assigned to the control group,
probation officers refrain from including JSIN data in presentence
reports during the two-year study period, although judges and litigants
may still use and consider the JSIN tool as they deem appropriate.” Id.
8                       USA V. BREWSTER


in danger, and the government identified no such person. He
also argued that, even if the guideline were technically
applicable, the court should depart or vary downward
because certain circumstances made it reasonable for him to
fear for his life, and he was thus justified in fleeing.
    Brewster also objected to the district court’s
consideration of the JSIN data. Brewster’s primary
objection was that the Sentencing Commission’s
methodology in generating the JSIN data, including its
exclusion of probationary and fine-only sentences, skewed
the reported custodial sentences higher. He also argued that
it would be improper for the court to consider the data
without holding “a sentencing hearing where a defense
statistical expert [could] explain the fatal shortcomings of
this ‘quick and easy’ data set,” and without making the
underlying dataset available to Brewster so that he could test
“the accuracy of [the] JSIN data.”
    The district court denied Brewster’s objection to the
reckless endangerment during flight enhancement. After
viewing the dashcam video on the bench, the court stated:

           I’m going         to    make     the    factual
       finding . . . .
           I will find that there were numerous
       drivers on the road over the course of travel
       that the defendant traveled, and that that is
       sufficient to support a finding of reckless
       endangerment . . . .
           . . . I think there is a sufficient basis in fact
       for the Court to draw the inference that Mr.
                           USA V. BREWSTER                                9


         Brewster’s car was reasonably close to that
         driver that I identified at I think it was 2:21.[4]
             But even if that’s not correct, I just think
         there were people on the road at that hour, the
         defendant was clearly out of control, and he
         came close enough to those persons that the
         finding is appropriate. So that’s the finding
         the Court is going to make.

    The court also rejected Brewster’s request to depart or
vary downward based on circumstances that allegedly
justified his flight. In doing so, the court characterized the
request as a “request . . . [to] vary” only. (emphasis added).
But rather than object to the court’s characterization,
Brewster’s counsel confirmed that the court had correctly
characterized and adequately addressed Brewster’s request:

              [Court:] First, I’m going to respond to
         Mr. Kalar’s request that I vary explicitly from
         the sentencing guidelines for the reason that
         Mr. Brewster is black and he was pulled over
         by law enforcement after midnight and they
         brandished their sidearms. As I understand
         it, that’s the request.
            I reject that argument, and I overrule—
         and I deny the request.
              ....


4
  There is no car visible at the 2:21 timestamp in the video. But we view
the district court’s reference to the timestamp as a mere slip of the tongue
because, in context, we are confident that the district court was referring
to the car at the intersection, which is visible at 2:12 in the video.
10                     USA V. BREWSTER


          [Court:] The way we are going to solve
       whatever problems we have with policing
       and race relations in this country is not to
       excuse the reckless endangerment of the
       community, and so I deny the request, Mr.
       Kalar.
           I think you wanted to say something
       earlier.
           Mr. Kalar: No, Your Honor. I think the
       Court correctly characterized it. It actually
       was a motion for a departure because the
       situation was not anticipated by the
       commission in the guidelines, and I won’t
       argue it anymore. I understand the Court’s
       ruling and thank you for expressly addressing
       it.

(emphasis added).
    The court also rejected Brewster’s objections to the JSIN
data. The court believed that the data was “helpful” because
the court thought it “very important . . . to give due weight
to the consideration under Section 3553(a) that the Court
avoid unwanted sentencing disparity.” The court made clear
that it relied on the JSIN data: “I wish it to be clear on the
record that I have relied on the JSIN information in reaching
whatever sentence I impose and that I have not engaged in
the process of considering what an appropriate sentence
would be absent that information.” But the court added that
its consideration of the JSIN data accounted for its
limitations: “I am well aware of the limitations of [the JSIN]
data. . . . I will consider the JSIN data in the light of all of
the criticisms contained in [defense counsel’s]
                           USA V. BREWSTER                              11


memorandum, and I will consider those criticisms in
determining the weight to be given to the JSIN information.”
    In explaining why the court relied on the JSIN data, it
noted that the data was consistent with information from
another Sentencing Commission tool called the Interactive
Data Analyzer (“IDA”).5 The district court explained that
the IDA is publicly available and “can limit the dataset by
circuit . . . and by district.” According to the district court,
for “years 2019, 2020, and 2021,” the IDA showed that for
similarly situated defendants in the Ninth Circuit “the
average sentence was 47 months and the median was 41
months,” and in just the Northern District of California “the
average sentence was 46 months and the median was 42
months.” The court concluded that it was “not aware of any
other source of information that is even remotely as robust
[as the JSIN or IDA data] that would assist the Court in
discharging its obligations under section 3553(a).”
    After resolving Brewster’s objections, the court
calculated the same guidelines range as the PSR: 41 to 51
months. The court imposed a mid-guidelines sentence of 46
months and three years of supervised release. Brewster
timely appealed, challenging his sentence.
                                    II
    “We review the district court’s factual findings for clear
error, its construction of the United States Sentencing
Guidelines de novo, and its application of the Guidelines to


5
  “The Interactive Data Analyzer (IDA) is an online tool that can be used
to explore, filter, customize, and visualize federal sentencing data.” U.S.
Sent’g Comm’n, Interactive Data Analyzer, https://www.ussc.gov/
research/interactive-data-analyzer        [https://perma.cc/3NMN-5Y9X].
Brewster did not object to the district court’s reliance on the IDA data.
12                      USA V. BREWSTER


the facts for abuse of discretion.” United States v. Harris,

 (9th Cir. 2021). “A district court’s
determination of whether a defendant’s conduct constituted
reckless endangerment during flight is a factual finding that
we review for clear error.” United States v. Young, 

 (9th Cir. 1994). “A finding is clearly erroneous if it
is illogical, implausible, or without support in the record.”
United States v. Torres-Giles, 

 (9th Cir.
2023) (quoting United States v. Burgos-Ortega, 

 (9th Cir. 2015)), cert. denied, 

(2024).
    We review forfeited errors for plain error. See United
States v. Jimenez, 

 (9th Cir. 2001).
Under plain-error review, there must be an obvious error that
affects substantial rights. 

 The error must also “seriously
affect[] the fairness, integrity, or public reputation of judicial
proceedings.” 

 (quoting United States v. Olano, 

 (1993)).
    We review for clear error a district court’s determination
that hearsay evidence is substantively reliable enough to be
considered at sentencing. See United States v. Franklin, 

 (9th Cir. 2021) (“A determination of
substantive reliability . . . is an essentially factual question
that we review for clear error.”).
                               III
                                A
    Section 3C1.2 provides: “If the defendant recklessly
created a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law
enforcement officer, increase by 2 levels.” U.S.S.G.
§ 3C1.2. According to Brewster, the plain language of this
                          USA V. BREWSTER                             13


guideline requires that a defendant’s flight endanger
“another person,” meaning a specific person. Under that
interpretation, Brewster argues that the district court erred in
applying the guideline because no specific person was put in
danger during his flight. We disagree.
    Even assuming without deciding that Brewster’s
interpretation of § 3C1.2 is correct, the district court made a
factual finding that Brewster’s flight created a substantial
risk of bodily injury to at least one specific person.6 After
viewing the dashcam video, the district court found that
Brewster was “clearly out of control” and “there were
numerous drivers on the road over the course of travel that
the defendant traveled,” including a car that was “reasonably
close” to Brewster when he crashed at the intersection. The
district court reasonably inferred that Brewster was “not
more than 30 feet” away from this car when he crashed. The
district court determined that those circumstances supported
that Brewster’s flight created a substantial risk of injury to
another person. The district court’s findings are supported
by the dashcam video.
    The video shows at least two motorists near Brewster’s
vehicle when he made dangerous maneuvers in fleeing from
the officers. At the start of the chase, Brewster makes a
sudden U-turn in front of another vehicle. That vehicle stops
to avoid hitting Brewster and the pursuing officers. Brewster
then drives over a raised median onto the sidewalk and
crashes into a building near an intersection. Moments after
the crash, the video shows a car stopped at the intersection

6
 We assume that Brewster has sufficiently raised a challenge to the
district court’s findings, even though his briefing contains seemingly
conflicting statements, including stating that he “does not challenge any
of the factual conclusions of the District Court in this appeal.”
14                        USA V. BREWSTER


with its headlights on. Considering Brewster’s reckless
driving and the proximity of the car at the intersection to the
crash,7 the district court did not clearly err in finding that
Brewster’s flight put at least one motorist at substantial risk
of serious bodily injury.
    Brewster’s primary argument is that the video is
insufficient to support the district court’s findings because it
conflicts with Brewster’s own declaration in which he stated
that “there were no other cars in the immediate area that were
affected by my driving.” But the district court rejected
Brewster’s account: “I was hoping not to have to say this. I
don’t believe Mr. Brewster. . . . He is not a credible
reporter.” And the court properly rejected his self-serving
statements because they were “utterly discredited” by the
video. Scott v. Harris, 

, 379–80 (2007)
(holding that a court should reject an account that is “utterly
discredited,” 

, by a video when there is no
allegation that the video was altered or fails to depict what
actually happened).
                                  B
    Brewster challenges the district court’s denial of his
request for a downward departure or variance based on
circumstances that allegedly justified his flight. He argues
that the district court misunderstood his request because the



7
  Brewster argues that this car was not close enough to be in danger
because we do not know exactly when it arrived at the intersection. But
we do know that the car was at the intersection within seconds after the
crash, and thus the district court could reasonably conclude that the
motorist was in substantial risk of injury given their proximity to the
crash and Brewster’s “clearly out of control” driving.
                            USA V. BREWSTER                                15


court mischaracterized it as a request for a variance only8
and believed that it was based solely on Brewster’s race.
    Brewster forfeited any argument that the court
misunderstood his requested departure. Rather than object
to the district court’s characterization of his request,
Brewster’s counsel stated that the court “correctly
characterized it” and “address[ed] it.” Thus, Brewster’s
arguments are subject to plain-error review. See Jimenez,
258 F.3d at 1124–25 (reviewing the district court’s
conclusion that the defendant committed a prior aggravated
felony for plain error because the defendant “not only failed
to object to the district court’s finding of a prior aggravated
felony, but confirmed the accuracy of the PSR,” id. at 1124,
which listed a qualifying prior aggravated felony). Because
Brewster makes no attempt to satisfy the plain-error
standard, his challenge fails.
                                     C
    Brewster’s primary argument regarding the JSIN data is
that the district court’s reliance on it violated his due process
rights because the JSIN data was not sufficiently reliable.
He also argues that the district court erred in denying his
request for an evidentiary hearing to put on a defense
statistical expert to challenge the JSIN data’s reliability and


8
  A “departure” is “typically a change from the final sentencing range
computed by examining the provisions of the Guidelines themselves. It
is frequently triggered . . . by other factors that take the case ‘outside the
heartland’ contemplated by the Sentencing Commission when it drafted
the Guidelines for a typical offense.” United States v. Cruz-Perez, 

 (9th Cir. 2009) (citations omitted). “A ‘variance,’ by
contrast, occurs when a judge imposes a sentence above or below the
otherwise properly calculated final sentencing range based on
application of the other statutory factors in 

(a).” 

16                         USA V. BREWSTER


in denying his request for the exact dataset used to generate
the JSIN data.
    To be clear, Brewster does not challenge the relevancy
of the JSIN data, and rightfully so. As the district court
correctly pointed out, 

(a)(6) requires the
sentencing court to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” The JSIN
tool enables judges to fulfill this obligation, as it provides
them with sentencing data for similarly situated defendants.
See 2021 Annual Report at 9. Because JSIN data is highly
relevant in sentencing, it would be inconsistent with
§ 3553(a)(6) for us to conclude that sentencing courts may
not consider JSIN data, assuming such data is sufficiently
reliable. See U.S.S.G. § 6A1.3 cmt. (“Any information may
be considered, so long as it has sufficient indicia of
reliability to support its probable accuracy.”).9

9
  While the district court did not make an explicit reliability finding, it
expressly relied on the JSIN data and thus implicitly found that it was
reliable. See Franklin, 

 (determining that the district
court made an implicit reliability finding and reviewing such finding for
clear error). The court’s explanation in rejecting Brewster’s challenge
further supports that the court made an implicit finding:

         The information is in the report because the judges of
         the Northern District of California asked the Probation
         Office to include it because the judges think it’s
         helpful.
           ....
           The reason I use it is because it is very important to
         me to give due weight to the consideration under
         Section 3553(a) that the Court avoid unwanted
         sentencing disparity.
                        USA V. BREWSTER                          17


    “[D]ue process requires that a defendant be sentenced on
the basis of accurate information. Thus, a district court may
consider any relevant information, ‘provided that the
information has sufficient indicia of reliability to support its
probable accuracy.’” United States v. Alvarado-Martinez,

, 734–35 (9th Cir. 2009) (citation omitted)
(quoting U.S.S.G. § 6A1.3(a)). “Due process requires [only]
some minimal indicia of reliability . . . .” United States v.
Petty, 

 (9th Cir.), amended, 

 (9th Cir. 1993). The defendant has the burden to show
that the challenged evidence lacks minimal indicia of
reliability, see United States v. Kimball, 

(9th Cir. 1992), and on appeal, the defendant must show that
the district court’s substantive reliability finding was clearly
erroneous, see Franklin, 

.
    The Sentencing Commission is a presumptively reliable
source, and Brewster offers no reason to conclude otherwise.
“Congress established the [Sentencing] Commission to
formulate and constantly refine national sentencing
standards.” United States v. Henderson, 

(9th Cir. 2011). The Sentencing Commission “hold[s] a key
role in the criminal system,” 

 and is “guided by a
professional staff with appropriate expertise,” 

 (quoting
Kimbrough v. United States, 

 (2007)). That
the Supreme Court has regularly relied on data from the
Sentencing Commission supports that it is a presumptively

          ....
         Whatever imperfections there may be in the JSIN
       data or the Interactive Data Analyzer, the fact remains
       that I am not aware of any other source of information
       that is even remotely as robust that would assist the
       Court in discharging its obligations under section
       3553(a).
18                    USA V. BREWSTER


reliable source. See, e.g., Molina-Martinez v. United States,

 (2016) (relying on the “Commission’s
statistics” to show “the real and pervasive effect the
Guidelines have on sentencing”); Peugh v. United States,

, 543–44 (2013) (relying on Sentencing
Commission data to show that the Guidelines influence the
sentences imposed by judges).
    Brewster argues that the Sentencing Commission itself
has suggested that the JSIN platform is unreliable. That is
untrue. The Sentencing Commission has endorsed the JSIN
platform as a reliable source to be used by judges during
sentencing. The Sentencing Commission describes the JSIN
tool as “an online sentencing data resource specifically
developed with the needs of judges in mind,” and as an
“expan[sion] [of] the Commission’s longstanding practice of
providing sentencing data at the request of federal judges by
making some of the data provided through . . . special
requests more broadly and easily available.” 2021 Annual
Report at 9 (emphasis added).
    Further, the IDA information—which Brewster has
never challenged—supported that the JSIN data was reliable.
The JSIN tool reported that for defendants similarly situated
to Brewster the average sentence was 45 months and the
median sentence was 42 months. The IDA reported
substantially similar results: for defendants similarly
situated to Brewster “the average sentence was 46 months
and the median was 42 months” in the Northern District of
California, and within the Ninth Circuit more broadly “the
average sentence was 47 months and the median was 41
months.” The consistency between the IDA information and
the JSIN data bolsters the district court’s finding that the
JSIN data was sufficiently reliable. See Petty, 982 F.2d at
                            USA V. BREWSTER                  19


1369 (affirming a district court’s reliability finding because
it was supported by corroborating evidence).
    That the JSIN tool, and its resulting data, comes from a
presumptively reliable source, was designed specifically to
be used by judges during sentencing, and was corroborated
by other unchallenged evidence, all supports that the JSIN
data was reliable. The district court therefore did not err,
much less clearly err, in finding that the JSIN data was
sufficiently reliable.
    Brewster’s objections below raised some possible
limitations as to the JSIN data, but his objections did not
remotely compel the conclusion that the JSIN data was
unreliable. The gravamen of Brewster’s objections was that
the Sentencing Commission’s methodology in generating
the JSIN data, including its exclusion of probationary and
fine-only sentences, skewed the reported custodial sentences
higher.10 This general contention in no way contradicted the
JSIN data. While the JSIN tool’s exclusions—which are
known, as they are disclosed by the JSIN tool itself—may
limit the persuasiveness or weight of the JSIN data, they do
not render the JSIN data unreliable. And here, the district
court properly accounted for the data’s limitations in
assessing its weight:

           I am well aware of the limitations of that
           [JSIN] data. And when I impose sentence in
           this case, I will consider the JSIN data in the
           light of all of the criticisms contained in
           [defense counsel’s] memorandum, and I will



10
     This is also Brewster’s primary argument on appeal.
20                        USA V. BREWSTER


         consider those criticisms in determining the
         weight to be given to the JSIN information.

    Moreover, Brewster offered nothing to materially
undermine the JSIN data’s reliability. For example, using
publicly available sentencing data, Brewster could have tried
to show that the JSIN’s reported average and median
sentences were so inaccurate that they lacked any indicia of
reliability. 11 Brewster’s failure to offer any contradictory
evidence, reinforces our conclusion that the JSIN data was
reliable. See Kimball, 

 (holding that the
defendant had failed to show that the evidence was false or
unreliable because he “simply allege[d] that [it was] false”
and “offered no evidence to contradict” it).
    Brewster also cannot show that the district court abused
its discretion in denying an evidentiary hearing on the
reliability of the JSIN data. See United States v. Baker, 

 (9th Cir. 1990) (reviewing the denial of an
evidentiary hearing for abuse of discretion). We have held
that “it is not an abuse of discretion to sentence a defendant
without an evidentiary hearing if the trial court gives the
defendant an opportunity to rebut allegations in the
presentence report ‘by allowing defendant and his counsel to
comment on the report or to submit affidavits or other
documents[.]’” 

 at 1084–85 (quoting United States v.

11
   Brewster’s own statements show that he had access to sufficient
publicly available data to challenge the JSIN’s reported average and
median sentences. According to Brewster, “[t]he vast sentencing
datasets used by the Commission for the creation of the Guidelines
themselves are publicly available and are constantly evaluated and tested
by the federal defense bar.” (emphasis omitted). He also claimed that
“[t]he defense bar and the Sentencing Resource Counsel analysts have
tried to replicate JSIN.”
                        USA V. BREWSTER                         21


Petitto, 

 (9th Cir. 1985), overruled on
other grounds by United States v. Fernandez-Angulo, 

, 1517 & n.5 (9th Cir. 1990) (en banc)). As
discussed above, Brewster had an opportunity to rebut the
JSIN data with publicly available sentencing data, and he
failed to do so.
    We also reject Brewster’s claim that, to challenge the
JSIN data’s reliability, he needed the precise underlying
dataset. Again, Brewster had access to publicly available
sentencing data that he could have used to challenge the
JSIN data. Further, Brewster identifies no authority to
support that, even when a defendant has access to other
information that could be used to challenge the accuracy of
a government report, a sentencing court must still compel the
disclosure of the report’s underlying dataset.12
    In sum, the district court did not err, much less clearly
err, in finding that the JSIN data was reliable. Thus,
perforce, it bore some minimal indicia of reliability. The
JSIN data came from a reliable source designed specifically
for judges to use during sentencing to fulfill their obligations
under § 3553(a)(6). The JSIN data was also corroborated by
other unchallenged evidence. Finally, even though he could
have, Brewster offered no evidence to contradict or
materially undermine JSIN’s reported average and median
sentences.
                                D
   After briefing was completed, Brewster moved for
supplemental briefing on whether his conviction under 18

12
  We do not mean to suggest that there would be any circumstance in
which a sentencing court would need to compel the disclosure of any
datasets underlying JSIN data.
22                    USA V. BREWSTER


U.S.C. § 922(g)(1) for being a felon in possession of a
firearm violated the Second Amendment under Bruen. We
denied the motion because no good cause supported
Brewster’s failure to raise his Bruen-based challenge below.
See United States v. Ghanem, 

 (9th Cir.
2021) (“[A] failure to timely raise a pretrial objection
required by [Federal Rule of Criminal Procedure] 12, ‘absent
a showing of good cause,’ constitutes a waiver—we will not
review the objection, even for plain error.” (quoting United
States v. Guerrero, 

 (9th Cir. 2019))); Fed.
R. Crim. P. 12(b)(3)(B) (identifying “a defect in the
indictment or information” as an objection that “must be
raised by pretrial motion”).
    The Supreme Court issued Bruen in June 2022—more
than three months before the district court accepted
Brewster’s guilty plea. And as pointed out by the
government, defendants in this circuit started making Bruen-
based challenges shortly after Bruen’s issuance. See, e.g.,
United States v. Ramos, No. 2:21-CR-00395-RGK-1, 

, at *1 (C.D. Cal. Aug. 5, 2022) (denying the
defendant’s argument that his conviction for being a felon in
possession of a firearm was unconstitutional under Bruen).
Brewster therefore could have raised his Bruen-based
challenge in the district court. Because Brewster’s motion
offered no good cause supporting why he failed to make the
Bruen-based challenge below, we denied the motion.
                             IV
    We affirm Brewster’s sentence. The district court
properly applied the reckless endangerment during flight
enhancement under U.S.S.G. § 3C1.2. Brewster forfeited
his argument that the district court misunderstood his request
for a downward departure, and he demonstrates no plain
                      USA V. BREWSTER                      23


error to overcome such forfeiture. Finally, the district court
did not err in finding that the JSIN data was reliable.
   AFFIRMED.