United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1652

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United States of America,

Appellee,

v.

Michael B. Guiheen,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri

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 Submitted: November 18, 2009

 Filed: February 5, 2010 

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Before MELLOY, BEAM and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Michael Guiheen pled guilty to being a felon and an unlawful user of a

controlled substance in possession of ammunition, in violation of 18 U.S.C.

§§ 922(g)(1), 922(g)(3) and 924(a)(2). Before sentencing, Guiheen objected to a

proposed four-level increase in his base offense level for possession of a firearm in

connection with another felony offense under United States Sentencing Guidelines
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The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri. 

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§ 2K2.1(b)(6). Over Guiheen’s objection, the district court1

 applied the four-level

enhancement. Guiheen appeals. For the following reasons, we affirm. 

I. BACKGROUND 

On the night of January 14, 2008, Corporal Daryl Adkins and Sergeant David

Johnson of the Greene County, Missouri Sheriff’s Department went to Guiheen’s

house to serve an order of protection on him. As they approached the house, Sergeant

Johnson heard the chain link fence in the back of the house rattle. The lights were on

inside the house and a security light was shining on the back of the residence.

Sergeant Johnson knocked on the front door, but no one answered. The officers went

to the back of the house. The top of the chain link fence was bent down, and it looked

as though someone had crossed over it into the large open field behind the residence.

Sergeant Johnson walked into the field and found Guiheen lying down in a row of

trees and overgrown brush. 

Sergeant Johnson ordered Guiheen to put his hands up, but he did not comply.

Instead, Guiheen got into a kneeling position and drew a billy club from his

waistband. The billy club was fourteen to sixteen inches long and made of heavy

material with a rubber grip. Guiheen raised the billy club in a threatening manner.

Sergeant Johnson ordered Guiheen to drop the weapon, and Guiheen threw the billy

club behind him.

After Sergeant Johnson placed Guiheen in custody, he noticed a black coat on

the ground where Guiheen had been lying. The coat contained an envelope addressed

to Guiheen. Under the coat Corporal Adkins found a .22 caliber rifle. The rifle was

loaded with a round in the chamber, and the safety was off. Upon searching Guiheen,
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the officers found .22 caliber ammunition in the pocket of his pants that was identical

to the ammunition in the rifle. The officers also found two marijuana pipes in

Guiheen’s pocket.

Guiheen admitted that he fled to the field after he saw the officers walking

toward his house. When asked what his intentions were with the rifle and billy club,

Guiheen claimed that the rifle belonged to someone else and that it was lying in the

brush when he got there. However, the rifle did not have any rust or moisture on it.

When asked if he was going to shoot the officers, Guiheen responded, “[i]f I wanted

to shoot you I would have.” 

A federal grand jury subsequently charged Guiheen with being a felon and an

unlawful user of a controlled substance in possession of a weapon and ammunition.

Guiheen pled guilty to being a felon and an unlawful user of a controlled substance

in possession of ammunition.

At sentencing, Guiheen objected to a proposed four-level increase in his base

offense level under U.S.S.G. § 2K2.1(b)(6), which provides for a four-level increase

if the defendant “used or possessed any firearm or ammunition in connection with

another felony offense.” Guiheen argued that he did not possess the rifle in

connection with another felony offense. While just one other offense was required, the

district court relied on four separate possible felony offenses to support the

enhancement: two acts of unlawful use of a weapon, for Guiheen’s use of the rifle and

the billy club, Mo. Rev. Stat. § 571.030; armed criminal action, Mo. Rev. Stat.

§ 571.015; and resisting arrest, Mo. Rev. Stat. § 575.150. The district court overruled

Guiheen’s objection and sentenced him to 70 months’ imprisonment, the low end of

his advisory sentencing guidelines range. 
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II. DISCUSSION

“We review de novo the district court’s application of the [Sentencing]

Guidelines, and we review for clear error the district court’s factual findings.” United

States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007). “The district court’s determination

that the defendant possessed the firearm[] in connection with another felony is a

factual finding that we review for clear error.” United States v. Bates, 561 F.3d 754,

758 (8th Cir. 2009) (alteration in original) (quoting United States v. Smith, 535 F.3d

883, 885 (8th Cir. 2008)). A finding is clearly erroneous “only if we have a definite

and firm conviction that a mistake has been made.” United States v. Byas, 581 F.3d

723, 725 (8th Cir. 2009) (citing United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir.

2008)).

Section 2K2.1(b)(6) requires a four-level enhancement “[i]f the defendant used

or possessed any firearm or ammunition in connection with another felony offense.”

Application note fourteen of U.S.S.G. § 2K2.1(b)(6) provides that “another felony

offense” means “any Federal, state, or local offense . . . punishable by imprisonment

for a term exceeding one year, regardless of whether a criminal charge was brought,

or conviction obtained.” U.S.S.G. § 2K2.1(b)(6) cmt. n.14(C). “‘In connection with’

means that, at a minimum, the firearm had a ‘purpose or effect with respect to’ the

other felony offense because its presence facilitated or had the potential to facilitate

the offense, as opposed to being the result of mere accident or coincidence.” United

States v. Harper, 466 F.3d 634, 650 (8th Cir. 2006) (quoting United States v. Regans,

125 F.3d 685, 686 (8th Cir. 1997)). Keeping a firearm “at an easily accessible

location” while committing another felony “permits the inference that the firearm

emboldened the defendant” to engage in the illegal act. United States v. Mack, 343

F.3d 929, 936 (8th Cir. 2003); see also United States v. Kanatzar, 370 F.3d 810, 816
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When Mack was decided, the “in connection with another felony offense”

enhancement was found at U.S.S.G. § 2K2.1(b)(5). The enhancement has since been

moved from § 2K2.1(b)(5) to § 2K2.1(b)(6) without substantive changes. United

States v. Littrell, 557 F.3d 616, 617 n.2 (8th Cir. 2009).

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(8th Cir. 2004), vacated on other grounds, 543 U.S. 1107 (2005). “This connection

is sufficient to satisfy U.S.S.G. § 2K2.1(b)[6].”2

 Mack, 343 F.3d at 936. 

A person commits the Missouri offense of felony unlawful use of a weapon if

he “[e]xhibits, in the presence of one or more persons, any weapon readily capable of

lethal use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4).

Guiheen makes no argument that § 571.030.1(4) does not apply to his display of the

billy club to threaten Sergeant Johnson. Rather, Guiheen argues that possessing a rifle

could not possibly facilitate his unlawful use of the billy club. We disagree.

 Relying on Mack, the district court found that Guiheen’s access to the rifle

emboldened him to raise the billy club in a threatening manner and thus satisfied

U.S.S.G. § 2K2.1(b)(6). This finding was not clearly erroneous. It is undisputed that

Guiheen ran away from his house when he saw the officers approaching and hid in a

row of trees and brush. A loaded .22 caliber rifle with a round chambered and the

safety off was hidden under a coat where Guiheen was lying. Guiheen claimed that

the rifle was not his and that he did not bring it with him when he hid. However, the

rifle did not have any rust or moisture on it and Guiheen had the same type of

ammunition in his pocket as was found inside the rifle. It was quite reasonable for the

district court to conclude that the presence of the rifle was no accident and that

Guiheen brought it with him as he fled the officers. Guiheen kept the rifle in “an

easily accessible location” underneath the coat where he was lying as he brandished

the billy club in a threatening manner. See Mack, 343 F.3d at 936. Under these

circumstances, it is certainly reasonable to conclude that Guiheen’s “maintenance of

a firearm at an easily accessible location . . . emboldened” him to raise the billy club

in a manner threatening to Sergeant Johnson. See id. Accordingly, the district court
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Because we conclude that the enhancement is warranted based on the unlawful

use of the billy club, we need not determine whether the possession of the rifle also

facilitated any of the other possible felony offenses identified by the district court.

See Harper, 466 F.3d at 651.

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did not clearly err in finding that Guiheen possessed the rifle in connection with

another felony offense, unlawful use of a weapon, and that the enhancement under

U.S.S.G. § 2K2.1(b)(6) was appropriate.3

 

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

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