## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 22

- 2197

___________________________ United States of America
Plaintiff - Appellee

v.
Jesse William Peterson Defendant - Appellant

____________ Appeal from United States District Court for the District of Minnesota

____________ Submitted: January 13, 2023 Filed: June 8, 2023 [Unpublished]

____________ Before KELLY, ERICKSON, and STRAS, Circuit Judg es.

____________ PER CURIAM

.
Jesse Peterson received a 95

- month prison sentence after he pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). Although he challenges

a six

- level enhancement for assaulting the officers who apprehended him , s ee U.S.S.G. § 3A1.2(c)(1) , w e affirm.-2- I.

An arrest warrant led to a standoff. Rather than surrender , Peterson blockad ed himself in his bedroom . SWAT officers fire d tear

- gas canisters through a window , which Peterson covered with a pillow. Once the pillow was no longer in the w ay , a body camera captured three popping sounds. G lass shards flew outward, and at least one brief flash of light was visible.

Peterson eventually surrendered

. Then, w ith the assistance of a fire armdetecting dog, officers found a loaded revolver behind a wall in an adjoining bathroom. Absent, however, were any spent casings.

Rather than face trial, Peterson pleaded guilty

. See 18 U.S.C. § 922(g)(1) (felon in possession of a firearm)

. T he g overnment requested an enhancement on the theory that Peterson assaulted the officers by firing a gun out the window. See U.S.S.G. § 3A1.2(c)(1) ( providing a six

- level enhancement for an “assault[]” of an officer “in a manner creating a substantial risk of serious bodily injury”)

. After a lengthy hearing, the district court 1 agreed

. Our review is for clear error. See United States v. Two Elk , 536 F.3d 890, 909 (8th Cir. 2008).

II.

The district court had to make a tough call. Body

- camera footage captured three popping sounds, glass flying outward from the window, and what could have been a muzzle flash. On the other hand, the popping sounds were faint , the scene was chaotic, and the events were fast

- moving. Unmistakable on the recording, however, is one officer immediately saying he heard gunshots

.

1 The Honorable Nancy E. Brasel, United States District Judge for the District of Minnesota.-3- The same officer then testified under oath. His account remained un change d : he heard gunshots and thought that Peterson was shooti ng at them

. The district court found his testimony credible, in part because of his extensive experience with firearms.

Even if the absence of spent ca sings casts some doubt on the government’s theory, a c lose call does not get over the “high bar of cl ear [-] error review .” United States v. Denson , 967 F.3d 699, 705 (8th Cir. 2020) (citation omitted) ; see FTC v. Lundbeck, Inc. , 650 F.3d 1236, 1239 (8th Cir. 2011) (noting that it does not matter

“ how this court might have weighed the evidence in the first instance”). O ne explanation for the missing evidence could be the passage of time: at least 15 minutes elapsed between the gunshots and the end of the standoff

. Having time to hide the gun suggests that Peterson had time to get rid of the casings too. On this

recor d, in other words, th e finding that he fired the gun was not clearly erroneous. See United States v. Dock , 967 F.3d 903, 904

– 05 (8th Cir. 2020) (expla ining that spent shell casings are not a requirement for a fi nding like this one ).

III.

Peterson has a backup argument. He claims for the first time on appeal that , even if he fired it , he neither intend ed to, nor cause d , any officers to “fear immediate bodily harm.” United State s v. Olson , 646 F.3d 569, 573

– 74 (8th Cir. 2011) (emphasis omitted) (citation omitted) (requiring both to constitute “menacing assault”)

. On plain

- error review, this argument does not get him far

. S ee United States v. Olano , 507 U.S. 725, 733

– 34 (1993)

. For one thing, it was reasonable for the district court to infer that Peterson at least intended to make the officers fear the possibility of getting shot. See Olson , 646 F.3d at 574 (raising a gun is enough to satisfy the fear

- of

- immediate

- bodily

harm requirement); cf. United States v. Wynn , 827 F.3d 778, 785 (8th Cir. 2016) ( recognizing that a factfinder “may infer intent from circumstantial evidence” (citation omitted) )

. F or another, the fact that one officer warn ed the other s about the-4- danger shows that he succeeded in causing fear. See Olson , 646 F.3d at 574

. The bottom line is that t here was no error, plain or otherwise

.

IV.

We accordingly aff irm the judgment of the district court.

______________________________