The Honorab le Patrick A. Conmy, United States District Judge 1 for the District of North Dakota. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3075

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of North Dakota. Gregory Lynn Balanga, * * Appellant. *

___________ Submitted: February 10, 1997 Filed: April 1, 1997

___________ Before MAGILL, BEAM, and LOKEN, Circuit Judges.

___________ MAGILL, Circuit Judge.

Gre goryLynn Balanga was convicted in the district court by 1

a ju ry on two counts of being a felon in possession of a firear m and ammunition, in violation of 18 U.S.C. § 922(g)(1) (1994). On ap peal, Balanga argues that there was insufficient evidence t o convict him of being a felon in possession of a firearm, that the distri ct court abused its discretion in using an Eighth Circui t Model Jury Instruction rather than the instruction submitted by-2-

Balanga, and that the district court erred in enhancing hi s sentence. We affirm.

I.
Balanga lived with his girlfri end, Lori Lindstrom, in a small rental house at 311 North 19th Street in Bismarck, North Dakota

. The h ouse had a basement which could only be accessed through a root-cellar door outside of the house. The root-cellar doors led to a short staircase, at the bottom of which was a second do or that opened on the basement. This second door was padlocked. Th e basement contained a washer and dryer, a desk used as a workbench, and a telephone.
During the summer of 1995, Balanga allegedly possessed a .25 caliber handgun and a sawed-off shotgun. On August 8, 1995 , Balanga purportedly discharged one of the firearms in his yar d during an argument with a woman named Kristie Sherman. On August 15, 1995, police placed Balanga in North Dakota state custody for this alleged assault. Lindstrom, Balanga's girlfriend, testified that when police took Balanga into custody she removed the .2 5 caliber handgun and sawed-off shotgun from Balanga's car andplaced themin her own. Upon Balanga's release from custody shortl y thereafter, Lindstrom testifie d that she gave the firearms back to him.

Some time between October 6 and 13, 1995, Balanga's brothe r Dennis asked Balanga if he could store some things in Balanga' s basement. Dennis received a key to the basement padlock fro m either Balanga or Lindstrom. Dennis then put a .22 caliber rifle (whi chhad one round of ammunition in its clip) and a box of .3 8 caliber ammunition in Balanga's basement.-3-

On October 13, 1995, police executed a search warrant o n Balanga's house. The police discovered the .22 caliber rifle and .38 caliber ammunition stored in the basement of Balanga's house. Wheninformed about the discovery of the rifle and ammunition , Balanga allegedly stated to the police that "I forgot the gun was
eve nthere. It's not my gun. It's my . . . sister-in-law's , DeAnna." Trial Tr. at 55. Th e police did not find either the .25 caliber handgun or the sawed-off shotgun.

Balang a was charged on a four-count indictment for being a felonin possession of three firearms (a .25 caliber pistol, a sawed-off shotgun, and a .22 bolt-action rifle) and ammunition (a singl e round of .22 caliber ammunition and a box of .38 calibe r ammunition), in violation of 18 U.S.C. § 922(g)(1). The jur y acq uitted Balanga of possession of the sawed-off shotgun and wa s unable to reach a verdict on the count of being in possession o f the

. 25 caliber handgun. The jury convicted Balanga of being a felon in possession of the .22 caliber rifle and the ammunition.

The district court sentenced B alanga to 188 months in prison. The court enhanced Balanga's sentence based on his three prio r convictions in Colorado for second degree burglary, which th e dis trict court counted as violent felonies. Balanga now appeal s his conviction and sentence. II.
On appeal, Balanga argues that there was insufficient eviden ce to support his conviction for being in possession of the .2 2 caliber rifle and the ammunition found in his basement. We mus t affirm a jury verdict if, taking all facts in the light mos t favorable to the verdict, a reasonable juror could have found theBalan ga does not challenge that he knew of the .22 calibe r 2 ri fle and the ammunition that was stored in his basement. Se e Reply Br. at 2 n.1 (acknowledging that evidence “precludes h im from effectively arguing for a reve rsal due to insufficient evidence of knowledge”).
-4- defendant guilty of the charge d conduct beyond a reasonable doubt. See United States v. Matra , 841 F.2d 837, 840 (8th Cir. 1988).
Balanga bases his insufficiency argument on his assertion th at he did not possess a key to his basement door's padlock whil e Denn is stored a rifle and ammunition in Balanga's basement

. Because he did not have a key to the basement, Balanga argues, he did not have access to the .22 caliber rifle and the ammunit ion and therefore did not possess them. We disagree. 2

To convict Balanga of being a felon in possession of a fir earm, the government had the burden of proving beyond a reasonable doubt that he "'exercised ownership, dominion or control
over the firearms or dominion over the premises '" where th e firearms were stored. United States v. Mabry , 3 F.3d 244, 2 47 (8th Cir. 1993) (quoting United States v. DePugh , 993 F.2d 1362, 136 4 (8th Cir. 1993)) (emphasis added by Mabry ). "In the absence o f evidence refuting the normal i nference of dominion, showing that a fire armwas discovered at the defendant's residence suffices t o pro ve constructive possession." Mabry , 3 F.3d at 247 (rejectin g argument that defendant did not possess shotguns stored in h is home because they were in a room accessible only through his mother' s locked bedroom).

In thi s case the jury could have reasonably concluded tha t Balanga failed to refute the n ormal inference of dominion over his
own home. While there was some testimony at trial to suppor t Balanga's assertion that he di d not have a key to his own basementAt a state proceeding, Lindstrom had testified that Balanga 3 had no key to the basement whe n it contained the .22 rifle, but at Bal anga's federal trial Lindstrom indicated that she had lied a t the state proceeding at Balanga's request. See Trial Tr. at 105- 06. Lindstrom testified at tr ial that Balanga might have retained a key during the period in question. See id. at 122-23. Bal anga has not explained why his alleged lack of a key t o 4 his basement door's padlock would have prevented him from ac cessing his b asement. Balanga has not suggested that he could not hav e retrie ved a key that was on loan, nor that the padlock could no t have been disabled by a locksmith. Indeed, Balanga, a thrice

convi cted burglar, was apparently somewhat adept at cuttin g padlocks off of doors himself. See Presentence Investigatio n Report (PSR) at ¶ 22 (explaining that Balanga's accomplice in a burg lary"advised authorities Balanga would cut off the padloc k securing t he unit and install his own padlock. He would the n return at a more convenient time to open the unit and remove th e merchandise.").
-5- during the period in question, there was also evidence that Balanga in f act retained a key. See Trial Tr. at 122-23 (Lindstro m testimony). When presented with such conflict ing testimony, "[i]t 3 is the j ury's duty, not ours, to review the credibility of thes e witnesses and to weigh their testimony." United States v. Logan , 49 F.3d 352, 360 (8th Cir. 1995). Even without this conflictin g testim ony, the jury could have reasonably rejected as incredibl e the testimony that Balanga locked himself away from his ow n basem ent. See Mem. & Order, reprinted inAppellant's Add. at 3 ("The evidence regarding the key or keys was a bit incredibl e. The jurymay well have determined that no one voluntarily lock s themselves away from their washer and dryer and clean and soile d laundry for an indeterminate period."). 4 III.
Balanga next argues that the district court erred in relying
onan Eighth Circuit Model Jury Instruction on the meaning o f "possession" in the context of 18 U.S.C. § 922(g)(1) rather than-6-

accepting Balanga's proposed jury instruction. "When reviewing a challenge to the jury instruct ions, we recognize that the district court has wide discretion in f ormulating the instructions and will affirmif the entire charge to the jury, when read as a whole , fairly and adequately contains the law applicable to the case. " United States v. Casas , 999 F.2d 1225, 1230 (8th Cir. 1993).
During trial, Balanga requested a jury instruction which rea d:

Possession: Key to padlock You have been instructed tha t possession means "dominion andcontrol." In determining whether Greg Balanga had "domi nion and control" over the Mossberg .22 caliber rifle ide ntified in Count Three and the ammunition listed in Count Four which were found in the locked basement of 311 North 19th Street, you mus t determine whether he had "domi nion and control" over the key to the locked door. If he did not have "dominion an d control" over the key to the l ocked door, he cannot have had do minion and control over the Mossberg .22 calibe r rifl e identified in Count Three and the ammunition i n Count Four. United States v. Wright , 24 F.3d 732 (5t h Cir. 1994); United States v. E ldridge , 984 F.2d 943 (8th Cir. 1993).
Reprin ted inAppellant's Br. at 23. Rejecting the requeste d instru ction, the district court issued Eighth Circuit Model Jur y Instruction Number 8.02 (1996), which provides, in part:
A person who knowingly has direct physical control over athing, at a given time, is then in actual possession o f it.
A person who, although not in actual possession, ha s boththe power and the intention at a given time t o exerc ise dominion or control over a thing, eithe r directly

or through another person or persons, is then i n constructive possession of it.
Reprinted inAppellee's Br. at 20.Balanga not only failed to raise this issue in the district 5 court , but Balanga's counsel strenuously argued against th e di strict court addressing the factual circumstances of Balanga' s previo us convictions. See Sentencing Tr. at 15 ("[Y]ou're [th e dis trict court] not supposed to get involved in a factfindin g decision. You're supposed to look at the elements of burglary."); 18 ("I think that, yes, Taylor [ United States v. Taylor , 495 U.S. 575 (1990)] says look at the elements of burglary. It says that, yes, and I say don't go on--you don't have to engage in fact finding for this, but look at the sche me in Colorado, look at how Colorado has chosen to deal with this crime, and take it from there." ). The district court accordingly declined to make any specific findings of fact regarding the circumstances of Balanga's previou s convictions.
-7- The district court did not abuse its discretion in rejecting Balanga's proposed jury instru ction. We have recently held that a jury instruction patterned after Model Jury Instruction Numb er 8.02 "ac curatelystated the legal definitions of the various types o f possession, including constructive possession." United States v. Smith , 104 F.3d 145, 148 (8th Cir. 1997). By contrast, Balanga's requestedjury instruction improperly assumed that Balanga' s immediate possession of a key was necessary for him to hav e do minionover the firearm in his basement. As our decision i n Mabry makes clear, such dominion may be inferred, and posses sion of a key did not have to be proven. See Mabry , 3 F.3d at 247.

IV.
Balanga finally argues that, because the district court fail ed to e xamine the factual circumstances underlying Balanga's thre e previo us convictions in Colorado for second degree burglary, th e district court erred in enhancing Balanga's sentence pursuan t to 18 U.S.C. § 924(e)(1) (1994). Because Balanga failed to raise thi s argument in the district court, we review this argument only fo r pl ainerror resulting in a miscarriage of justice. See Unite d 5 States v. Petty , 1 F.3d 695, 697 (8th Cir. 1993).-8-

Under 18 U.S.C. § 924(e)(1), a person previously convicted of three violent felonies shall receive a minimum fifteen-year penalty upon conviction of being a felon in possession of a firearm. Under 18 U .S.C. § 924(e)(2)(B)(ii) (1994), "burglary" is specificall y included as a violent felony. An "objecting defendant bears the burden of proving that a prior conviction is not a violent felony

. . . as defined in § 924(e)(2)." Woodall v. United States , 7 2 F.3d 77, 80 n.1 (8th Cir. 1995). Because Balanga had previousl y beenconvicted on three occasions of second degree burglary o f storage units in Colorado, the district court determined tha t § 92 4(e)'s fifteen-year minimum sentence applied, and sentence d Balanga accordingly.

In Taylor v. United States , 495 U.S. 575 (1990), the Supreme Court anal yzed the term "burglary" as it is used in 18 U.S.C

. § 924(e)(2)(B)(ii). The Court held that
a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of an y crime,regardless of its exact definition or label, havin g the ba sic elements of unlawful or unprivileged entr y in to, or remaining in, a building or structure, wit h intent to commit a crime.

Taylor , 495 U.S. at 599. Where a state's burglary statut e penalizes conduct which does not fall into this generic defi nition,
a sentencing court should examine whether, in the specifi c ci rcumstances of a defendant's previous conviction for burglary , "the charging paper and jury instructions actually required th e jury to fi nd all the elements of generic burglary in order t o convict the defendant." Id. at 602.
Colorado's second degree burglary statute provides that:The government conceded at oral argument that Colorado' s 6 seco nd degree burglary statute is actually broader than generi c burglary. While we question whether this is an accurate eva luation of Colorado law, see Armintrout v. People , 864 P.2d 576, 579 (Colo. 1993) ("second degree burglary require[s] the unlawful entry into a 'building or occupied struct ure'" (citing Colo. Rev. Stat. § 18- 4-203(1))), this is not an issue that we need reach on review for plain error.
-9- A person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfull y ina building or occupied structure with intent to commi t therein a crime against a person or property. . . .
Colo. Rev. Stat. § 18-4-203(1). Because this provision penalizes one who "knowingly breaks an entrance into" a building, id. , and is therefore broader than the generic definition of burglary offered bythe Court in Taylor , Balanga contends that the district cour t should have examined the facts presented in his charging papers to
ensure that he had not been convicted for merely breaking a n entrance into the storage units that he burglarized. 6

Assu ming that the Colorado statute is broader than generi c burglaryand that the district court erred in not examinin g Balanga's Colorado charging papers, Balanga still has the bu rden of demonstrating that a miscarriage of justice will occur if thi s hypothetical error is not corrected. See Petty , 1 F.3d at 6 97. In this case, a miscarriage of justice would occur only if Balanga's sentence had been enhanced for a conviction for merely breaking an entrance into--and not actually entering--the Colorado storag e units.

Balang a has not presented any evidence, nor has he eve n al leged, that his prior convictions for second degree burglar y resulted from merely breaking an entrance into the storage u nits in Colorado. In the Presentence Investigation Report (PSR), theWhile raising a variety of challenges to other factua l 7 stat ements in his PSR, see PSR Add. at 1-5, Balanga has no t challenged the PSR's descriptions of his Colorado burglar y convi ctions. See id. By failing to make an objection, Balang a depriv edthe prosecutor of an opportunity to submit evidenc e sup porting the PSR's statements to the sentencing court. Se e Woodall v. United States , 72 F.3d 77, 80 (8th Cir. 1995) ("T o es tablishthat [the defendant's prior] burglary convictions wer e violent felonies under Taylor , the sentencing court needed t o determine either that the applicable [state] statutes, or th e ind ictments or jury instructions in [the defendant's] cases , revealed 'generic 

## ' burglaries. The PSR did not contain tha t information. I f [the defendant 

## ' s] counsel had timely objected on
-10- Un itedStates probation officer reported that, for each o f Balanga's previous burglaries, items had been stolen from th e storage un its. See PSR at ¶¶ 20-22 (describing June 24, 198 7
conv ictionfor second degree burglary in Denver County Distric t Cou rt in Denver, Colorado), ¶¶ 23-24 (describing May 26, 198 7 conviction for second degree b urglary in Jefferson County District Cou rt in Golden, Colorado), ¶¶ 24-27 (describing October 1, 198 7
co nvictionfor second degree burglary in Adams County Distric t Cou rt in Brighton, Colorado, and related conviction on March 25 , 1987 for theft of property in Adams County Court in Brighton , Colorado). Facts recited in a PSR, although hearsay, may be relied upon by a court unless they are in dispute. Cf. United States v. Beatty , 9 F.3d 686, 690 (8th C ir. 1993); see also Woodall , 72 F.3d at 80 ("Generally, the government establishes prior violen t felonies warranting a § 924(e)(1) enhancement by submitting the PSR listing defendant's prior convictions. Objections to a PSR must be made prior to the sentencing hearing, and the probation offi cer may then conduct a further investigation and revise the PSR. Because the PSR when challenged is not evidence, the government also has an opportunity at the sentencing hearing to introduce additiona l evidence regarding the disputed facts.") (quotations, citations , alterations, and note omitted). 7that g round, the probation officer or the government could hav e

supplied the missing information prior to or at the sentencin g hearing.").
While n ot challenging the PSR 

## ' s description of his previou s conv ictions for second degree burglary in Colorado, Balanga di d file an objection to the PSR insisting that he is actually i nnocent of the burglary convictions. See Statement of Gregory Balang a (July 15, 1996) (stating that Balanga had purchased a U-Haul load of stolen items from Frank Hernandez without knowing that th ey were st olenand sold them at a flea market). Balanga stipulated a t trial that he had, in fact, been convicted of second degre e burglary three times in Colorado state courts, see Trial Tr. at 66, andconceded at oral argument that two of these convictions wer e pursuant to guilty pleas. Bal anga does not suggest that his prior convictions have been overturn ed or in any way invalidated, and we do not construe Balanga's efforts to avoid responsibility for his past convictions as a specific challenge to the PSR's descriptions of those past convictions.
-11- Balanga has failed to show that any miscarriage of justice h as occurred. The description of Balanga's prior convictions co ntained in the PSR demonstrates that he did more than merely break a n entrance into storage units; r ather, to obtain stolen items it was necessaryfor him to enter the burglarized storage units

. Balanga's prior convictions for second degree burglary ar e th erefore consistent with convictions for generic burglary unde r Taylor , and the enhancement of his sentence under 18 U.S.C

. § 924(e)(1) was proper.
Accordingly, we affirm the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.