United States Court of Appeals

For the Eighth Circuit

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No. 13-1258

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Bryan Scott Holm

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: January 16, 2014

 Filed: March 21, 2014

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

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LOKEN, Circuit Judge.

Bryan Scott Holmpleaded guilty to being a felon in possession of a firearmand

ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The plea agreement included

a stipulation, not binding on the court at sentencing, “that the firearm was not used

in connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(6)(B).” 

See Fed. R. Crim. P. 11(c)(1)(B). The Presentence Investigation Report (“PSR”)

nonetheless recommended that the court apply this four-level enhancement. At
sentencing, the district court overruled Holm’s timely objection to the recommended

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enhancement, determined that his advisory guidelines range is 84 to 105 months in

prison, and sentenced Holm to 96 months in prison, the middle of that range. Holm

appeals the sentence, arguing that the record does not support the § 2K2.1(b)(6)(B)

enhancement. We disagree and therefore affirm. 2

Section 2K2.1 of the Guidelines contains Offense Conduct provisions that

apply to Holm’s firearm possession offense. The four-level enhancement at issue 

applies if a defendant “used or possessed any firearm or ammunition in connection

with another felony offense.” § 2K2.1(b)(6)(B). “In applying § 2K2.1(b)(6) when

the defendant has not been convicted of another state or federal felony offense, the

district court must find by a preponderance of the evidence that another felony

offense was committed, and that use or possession of the firearm ‘facilitated’ that

other felony.” United States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009). When the

issue is whether the evidence supports these findings, we review the district court’s

determination for clear error. Id. at 617-618. 

Paragraph 14 of Holm’s PSR set forth the following offense conduct facts:

14. On May 21, 2012, LEO [law enforcement officers] executed a

search warrant at Holm’s residence . . . where they found [three firearms,

ammunition, and drug paraphernalia] . . . . At the time of the search,

Holm was not present. LEO located Holm driving and conducted a

traffic stop. Upon searching Holm, LEO found a loaded .38 special

HWM revolver in his waistband, ammunition, a stun gun in a case in his

The Honorable Stephanie M. Rose, United States District Judge for the

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Southern District of Iowa.

Holmdoes not and could not argue that the district court erred by investigating

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whether the plea agreement stipulation accurately reflected conduct relevant to a

proper sentence. See United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004).

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front coat pocket, a knife on a lanyard around his neck, a baggie of

approximately one-half gramof methamphetamine, and two glass pipes.

Holm withdrew his initial objection to paragraph 14 prior to sentencing.

The methamphetamine found when Holm was searched on May 21, 2012, was

evidence of a drug possession offense. For purposes of the § 2K2.1(b)(6)(B)

enhancement, a firearm is possessed “in connection with” a drug possession felony

if it “facilitated, or had the potential of facilitating” that other felony. § 2K2.1,

comment. (n.14(A)). Applying thisstandard, we have repeatedly held: “when a drug

user chooses to carry illegal drugs out into public with a firearm, an ‘in connection

with’ finding ‘will rarely be clearly erroneous.’” United States v. Sneed, 742 F.3d

341, 344 (8th Cir. 2014), quoting United States v. Fuentes Torres, 529 F.3d 825, 827

(8th Cir. 2008); see United States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010);

United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997), cert. denied, 523 U.S.

1065 (1998). At sentencing, the district court found “by a preponderance of the

evidence that your possession of methamphetamine in the same car as your loaded .38

caliber handgun facilitated or had the potential to facilitate your meth possession,

even this relatively small user amount.” This finding was not clearly erroneous. 

The remaining element that must be found to apply the § 2K2.1(b)(6)(B)

enhancement -- that Holm’s possession of a small user amount of methamphetamine

was a felony offense -- is, in this case, a more complex issue. The Guidelines define

“felony offense” as “any federal, state, or local offense punishable by death or a term

of imprisonment exceeding one year,” regardless of the sentence imposed. U.S.S.G.

§ 4A1.2(o). Holm’s possession of a user amount of methamphetamine was not a

federal felony offense, see 21 U.S.C. § 844a(a), so this issue turns on state law. Iowa

law prohibits the knowing or intentional possession of a user amount of a controlled

substance such as methamphetamine (unless pursuant to a valid prescription). See

Iowa Code §§ 124.401(5), 124.206(4)(b). The initial violation of § 124.401(5) is a

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“serious misdemeanor.” But an offender who has a prior conviction for violating an

enumerated Iowa drug law is guilty of an aggravated misdemeanor; if the offender

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has two such prior convictions, a violation of § 124.401(5) is a class “D” felony. A

crime designated as an aggravated misdemeanor under Iowa law falls within the

Guidelines definition of felony offense. United States v. Phillips, 633 F.3d 1147,

1148 (8th Cir. 2011); see Iowa Code § 903.1(2). Paragraphs 39 and 40 of the PSR,

to which Holm did not object, recited that he was convicted of “Possession of

Cocaine” in an Iowa District Court in 1994, and “Possession of Methamphetamine”

in another Iowa District Court in 1995. 

Holmobjected to paragraph 23 of the PSR, which recommended the four-level

§ 2K2.1(b)(6)(B) enhancement. In response, the probation officer explained: 

On May 21, 2012, the defendant was arrested for the instant

offense and was charged with Possession of a Controlled Substance,

Third or Subsequent Offense, under Iowa Code 124.401(5)D. This case

was dismissed in lieu of [this] federal prosecution. According to the

Iowa Code under which the defendant was charged . . . . “[a] person who

commits a violation of this subsection and who has previously been

convicted of violating this chapter or chapter 124A, 124B, or 453B is

guilty of an aggravated misdemeanor. A person who commits a

violation of this subsection and has previously been convicted two or

more times of violating [those chapters] is guilty of a class ‘D’ felony.”

* * * * *

. . . . The probation office further notes the defendant was originally

charged in the state of Iowa with a class D felony charge in the state of

Iowa for Possession of Methamphetamine as referenced above. Based

Chapters 124, 124A, 124B, and 453B of the Iowa Code. Chapter 124 defines 3

controlled substance offenses. Chapter 124A deals with imitation controlled

substances, chapter 124B with precursor substances, and chapter 453B imposes an

excise tax on unlawful dealing in controlled substances.

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on these reasons the PSR will respectfully remain unchanged. The issue

is unresolved.

At sentencing, the government advised that it would present no evidence

regarding the recommended § 2K2.1(b)(6)(B) enhancement because it had stipulated

in the plea agreement that the enhancement did not apply. The district court then 4

overruled Holm’s objection to the PSR recommendation. Regarding this felony

offense issue, the court concluded: “because you have been previously convicted on

two or more occasions of possessions under Iowa law . . . your possession of

methamphetamine on [May] 21st was a felony . . . [or] an aggravated misdemeanor

under Iowa Code provision 124.401, and it’s subparagraph 5.” Holm then objected

to the enhancement on three grounds, including that the government had not proved

that his possession of methamphetamine “would have been a felony conviction.” But

he did not articulate what additional proof beyond the facts in the PSR was required. 

On appeal, Holm fills in this blank, arguing the record is insufficient to

establish that his methamphetamine possession was a felony offense under the

Guidelines because paragraphs 39 and 40 of the PSR did not specify that those

convictions were under chapters 124, 124A, 124B, or 453B of the Iowa Code. 

Absent that proof, he argues, a violation of Iowa Code § 124.401(5) is not an

aggravated misdemeanor or felony under Iowa law, so it is not a “felony offense”

under U.S.S.G. § 4A1.2(o), and the § 2K2.1(b)(6)(B) enhancement does not apply.

For this reason, on appeal the government takes no position regarding the

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district court’s decision to apply the § 2K2.1(b)(6)(B) enhancement. As to thisfelony

offense issue, the government’s brief states: “it does not appear that the district court

erred by concluding that Holm’s possession of methamphetamine on May 2[1], 2012,

qualified as either an aggravated misdemeanor or a class ‘D’ felony under Section

124.401(5) of the Iowa Code.” 

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This argument overlooks the probation officer’s reason for overruling Holm’s

objection to the recommended enhancement -- that a state prosecutor charged Holm

with “Possession of a Controlled Substance, Third or Subsequent Offense” for the

methamphetamine he possessed on May 21, 2012. Though that charge was dropped

in favor of thisfederal prosecution, this was powerful, if not conclusive evidence that

the prior drug offenses listed in Paragraphs 39 and 40 of the PSR were predicate

offenses that would have made this third offense a class “D” felony, or at least an

aggravated misdemeanor, under Iowa Code § 124.401(5). 

If he disagreed with this inference the probation officer drew from the state

court charge, Holm should have timely raised this issue in the district court, giving

the probation officer and the court an opportunity to consult state court records which

likely would have confirmed the bases ofthese prior Iowa convictions. Our extensive

research has uncovered no Iowa case charging a methamphetamine possession

offense under an Iowa Code chapter other than chapter 124, which strongly suggests

that Holm did not pursue this issue at sentencing because it would have been futile

to do so. In these circumstances, we conclude that the district court did not commit

clear error, much less plain error, in determining the probation officer correctly

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concluded that Holm’s possession of methamphetamine on May 21, 2012, would

have been a second or third offense under the predicate statutes enumerated in Iowa

Code § 124.401(5). Therefore, his simultaneous possession of methamphetamine

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“Preserving an issue is a matter of making a timely objection to the trial court

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and clearly stating the grounds for the objection, so that the trial court has an

opportunity to prevent or correct the error in the first instance.” United States v.

Williams, 994 F.2d 1287, 1294 (8th Cir. 1993) (quotation omitted).

In his reply brief, Holm speculates that his 1994 and 1995 convictions could

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“conceivably” have been for violating chapter 126, which prohibits adulteration,

misbranding, and mislabeling of drugs, or chapter 155A, the Iowa Pharmacy Practice

Act. We do not consider issues first raised in a reply brief, and it certainly was not

plain error for the district court not to consider such far-fetched theories.

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was “another felony offense” that wasfacilitated by his possession ofthe firearm, and

the § 2K2.1(b)(6)(B) enhancement applies. 

Having concluded the district court did not clearly err in finding that Holm

possessed the firearm in connection with a felony methamphetamine possession

offense, we need not consider the court’s alternative basis for applying the

§ 2K2.1(b)(6)(B) enhancement -- that his discharge of a firearm the night before his

May 21, 2012, arrest was a violation of Iowa Code 724.30 that is a felony offense

under the Guidelines. See United States v. Smith, 422 F.3d 715, 722 (8th Cir. 2005),

cert. denied, 546 U.S. 1127 (2006). Holm argues there was no proof that he

discharged the gun intentionally orrecklessly, correctly noting that the PSR stated the

discharge was accidental. 

Finally, Holm urges us to consider additional material not in the record on

appeal under Federal Rule of Appellate Procedure 10(e). We previously denied

Holm’s Rule 10 motion, and he makes no showing that any of this material would

affect our resolution of the only sentencing issue raised in this direct appeal. 

Accordingly, we decline to take up the Rule 10(e) issue. 

The judgment of the district court is affirmed.

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