United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3575

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Isaiah Mahone, *

*

Defendant - Appellant. *

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Submitted: June 11, 2012

Filed: August 20, 2012

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Before LOKEN, GRUENDER, and BENTON, Circuit Judges.

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LOKEN, Circuit Judge.

Isaiah Mahone pleaded guilty to being a felon in possession of a firearm; the

government dismissed a charge of possession with intent to distribute marijuana. At

sentencing, overruling Mahone’s objections, the district court imposed three firearm 1

enhancements and denied an acceptance-of-responsibility reduction, resulting in an

advisory sentencing guidelines range above the statutory maximum term of 120

months in prison. The court imposed the statutory maximum sentence. Mahone

appeals the sentence, arguing the district court’s rulings were procedural guidelines

The Honorable Jimm Larry Hendren, United States District Judge for the

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Western District of Arkansas.
errors. Reviewing these fact-intensive issues for clear error, we affirm. See United

States v. Ault, 446 F.3d 821, 824 (8th Cir. 2006) (standard of review).

I. The Firearm Enhancements

We summarize the relevant facts as recited in paragraphs of the presentence

investigation report (PSR) to which Mahone did not object. After a series of

controlled marijuana and ecstasy buys, law enforcement officers conducted warrant

searches at Apartments 11 and 12 of a Fayetteville, Arkansas, apartment complex. 

Apartment 11 was leased to Mahone’s sister’s; Mahone was listed as the utilities

account holder. When searched, the apartment was empty. Officers seized 44 grams

of marijuana and several items consistent with drug trafficking. The lessee of

Apartment 12 listed Mahone as his employer. Executing the warrant, officers

breached a fortified door and found Mahone and two others inside. The ensuing

search yielded two stolen firearms, a Glock semi-automatic pistol and a Smith and

Wesson assault rifle; 296 grams of marijuana and drug paraphernalia; and three cell

phones. A warrant search of the cell phones produced evidence that Mahone

identified Apartment 12 as his residence and a video showing him shooting a Glock

handgun at a firing range four months earlier. Mahone pleaded guilty to unlawful

possession of the firearm shown in that video. 

Under the advisory guidelines, the base offense level for Mahone’s felon-inpossession offense is 20, U.S.S.G. § 2K2.1(a)(4)(A), subject to increases for specific

offense characteristics governed by the Guidelines’ relevant conduct principles. The

relevant conduct guideline provides that, “solely with respect to offenses . . . for

which § 3D1.2(d) would require grouping of multiple counts,” relevant conduct

includes “all acts and omissions . . . that were part of the same course of conduct . . .

as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Section 3D1.2(d) includes

firearm offenses whose base offense level is governed by § 2K2.1. Applying these

principles, the PSR recommended that Mahone “be held accountable for all of the

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firearms involved in the instant offense (two of which were stolen), not just the

firearm to which he pled guilty.” Accordingly, the PSR recommended a two-level

increase for three firearms, § 2K2.1(b)(1)(A); a two-level increase for stolen firearms,

§ 2K2.1( b)(4)(A); and a four-level increase for possession of a firearm in connection

with another felony offense, § 2K2.1(b)(6). At sentencing, the district court overruled

Mahone’s objections to these enhancements.

On appeal, Mahone argues that the two firearms found during the warrant

search of Apartment 12 were not relevant conduct for the offense of conviction

because renting a weapon at a firing range “is not connected or similar to being in an

apartment where drugs and stolen firearms are located.” We disagree. At least four

of our sister circuits have concluded that a defendant’s pattern of unlawfully

possessing multiple firearms over the course ofseveral months constitutes “the same

course of conduct” for relevant conduct purposes. See United States v. Brummett,

355 F.3d 343, 345 (5th Cir. 2003), and cases discussed. This conclusion is consistent

with our decision in United States v. Cole, 525 F.3d 656, 659-60 (8th Cir. 2008),

where we upheld enhancements based on two firearms, one of which was stolen, that

were discovered at the same time as the “sawed-off” shotgun that was the basis for

the failure-to-register offense of conviction.

“Factors that are appropriate to the determination of whether offenses are

sufficiently connected or related to each other to be considered as part of the same

course of conduct include the degree of similarity of the offenses, the regularity

(repetitions) of the offenses, and the time interval between the offenses.” U.S.S.G.

§ 1B1.3, comment. (n.9(B)). Here, the Offense Conduct paragraphs of the PSR, to

which Mahone did not object, contained substantial evidence that the three firearms

at issue were part of a single course of conduct: informants who made controlled

buys reported guns being kept in the apartments; a regular marijuana and ecstasy

customer of Mahone told officersthat Mahone collected firearms and traded them for

drugs; in a cell phone text message, Mahone was asked, “Can I come get that lil 380,”

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by the perpetrator of an armed robbery that same night; and the cell phone contained

pictures of other firearms as well as the video of Mahone shooting a handgun at a

firing range less than four months before officers discovered two firearms in

Apartment 12. On this record, the district court’s findings that Mahone illegally

possessed three firearms, two of which were stolen, were not clearly erroneous. 

Mahone objects to the third enhancement -- possession of a firearm in

connection with another felony offense -- because there was no evidence the firearm

at the firing range was involved in any other felony. It is doubtless true that the

rented firing-range handgun was not directly used to facilitate another felony. But

Mahone’s relevant conduct included the two firearms that were found in Apartment

12 along with a substantial quantity of marijuana and other evidence of drug

trafficking. If Mahone had been convicted of both offenses initially charged, felon

in possession and possession with intent to distribute marijuana, there can be no

doubt these two weapons would warrant the § 2K2.1(b)(6) enhancement. See United

States v. Whiting, 522 F.3d 845, 850 (2008). Mahone would have us sidestep this

reality by arguing (without citation to authority) that “the dismissed [marijuana

charge] is not relevant conduct.” In general, relevant conduct includes “uncharged

conduct [that] is part of the same course of conduct as the offense of conviction.” 

Ault, 446 F.3d at 823. Given the “well-known tendency of drug criminals to use

firearms in connection with their drug activities,” United States v. Peroceski, 520

F.3d 886, 889 (8th Cir. 2008), the district court did not clearly err in finding that the

same course of conduct for Mahone’s offense of conviction included his closely

interrelated drug trafficking and continuing illegal possession of firearms. 

II. Acceptance of Responsibility

The PSR noted that Mahone denied living at Apartment 12 and denied

knowledge of the firearms and drugs found in the apartment, despite substantial

evidence to the contrary. The PSR nonetheless recommended, with “some

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reservations,” a two-level reduction for acceptance of responsibility because he

admitted the offense of conviction. However, in responding to Mahone’s objections

to the recommended firearm enhancements, the Probation Officer opined that, if the

court finds the relevant conduct reported in the PSR to be true, and if Mahone

“continues to deny or contest his involvement,” he would be “acting in a manner

inconsistent with acceptance of responsibility.” At sentencing, the district court

noted that the Guidelines provide for a reduction only if the defendant “clearly

demonstrates acceptance of responsibility.” U.S.S.G. § 3E1.1(a). The court denied

Mahone a two-level reduction, explaining:

I think all the defendant did was enter a plea of guilty and admit what he

needed to admit to get his plea accepted and did not go beyond that. 

Then he has argued and tried to explain [and] denied things that simply

were true, the conduct that had taken place prior to and during the time

of his arrest. To me, that does not amount to a clear demonstration of

acceptance of responsibility.

On appeal, Mahone argues the district court erred in denying the reduction

because he objected to the relevant conduct enhancementsrecommended in the PSR. 

Mahone bases this contention on the commentary to the acceptance of responsibility

guideline, which states that appropriate considerations in determining whether a

defendant qualifies for this reduction include:

truthfully admitting the conduct comprising the offense(s) of conviction,

and truthfully admitting or not falsely denying any additional relevant

conduct for which the defendant is accountable. . . . A defendant may

remain silent in respect to relevant conduct beyond the offense of

conviction without affecting his ability to obtain a reduction under this

subsection. However, a defendant who falsely denies, or frivolously

contests, relevant conduct that the court determines to be true has acted

in a manner inconsistent with acceptance of responsibility.

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U.S.S.G. § 3E1.1, comment. (n.1(A)). The commentary further warns, “A defendant

who enters a guilty plea is not entitled to an adjustment under this section as a matter

of right.” § 3E1.1, comment. (n.3).

After careful review ofthe sentencing record, we conclude the district court did

not clearly err in denying an acceptance-of-responsibility reduction. As the abovequoted explanation makes clear, the court primarily denied Mahone a reduction

because he falsely denied relevant conduct that was obviously true, both during the

Probation Officer’s interview and again in answering the court’s questions at

sentencing, not because he challenged firearm enhancements recommended in the

PSR. Mahone would have us focus solely on the court’s additional observation that

the relevant conduct objections “border on being frivolous.” But we need not decide

whether the objections were in fact frivolous. The commentary focuses both on false

denials and frivolous legal challenges. Here, as the district court found, Mahone’s

persistent denial of obviously relevant conduct -- that he wasinvolved in the guns and

drugs present in Apartment 12 -- was clearly false. For example, one person in the

apartment when the officers arrived said she overheard Mahone telling his associate

“to relax about the guns because the bullets were elsewhere and that he had flushed

the Ecstacy that was in the apartment.” 

The judgment of the district court is affirmed.

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