The Honorable 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.

Gregory Lynn Balanga was convicted in the district court by

1

a jury on two counts of being a felon in possession of a firearm

and ammunition, in violation of 18 U.S.C. § 922(g)(1) (1994). On

appeal, Balanga argues that there was insufficient evidence to

convict him of being a felon in possession of a firearm, that the

district court abused its discretion in using an Eighth Circuit

Model Jury Instruction rather than the instruction submitted by
-2-

Balanga, and that the district court erred in enhancing his

sentence. We affirm.

I.

Balanga lived with his girlfriend, Lori Lindstrom, in a small

rental house at 311 North 19th Street in Bismarck, North Dakota.

The house 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 door that

opened on the basement. This second door was padlocked. The

basement contained a washer and dryer, a desk used as a work bench,

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 yard

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 .25

caliber handgun and sawed-off shotgun from Balanga's car and placed

them in her own. Upon Balanga's release from custody shortly

thereafter, Lindstrom testified that she gave the firearms back to

him.

Sometime between October 6 and 13, 1995, Balanga's brother

Dennis asked Balanga if he could store some things in Balanga's

basement. Dennis received a key to the basement padlock from

either Balanga or Lindstrom. Dennis then put a .22 caliber rifle

(which had one round of ammunition in its clip) and a box of .38

caliber ammunition in Balanga's basement.
-3-

On October 13, 1995, police executed a search warrant on

Balanga's house. The police discovered the .22 caliber rifle and

.38 caliber ammunition stored in the basement of Balanga's house.

When informed about the discovery of the rifle and ammunition,

Balanga allegedly stated to the police that "I forgot the gun was

even there. It's not my gun. It's my . . . sister-in-law's,

DeAnna." Trial Tr. at 55. The police did not find either the .25

caliber handgun or the sawed-off shotgun. 

Balanga was charged on a four-count indictment for being a

felon in possession of three firearms (a .25 caliber pistol, a

sawed-off shotgun, and a .22 bolt-action rifle) and ammunition (a

single round of .22 caliber ammunition and a box of .38 caliber

ammunition), in violation of 18 U.S.C. § 922(g)(1). The jury

acquitted Balanga of possession of the sawed-off shotgun and was

unable to reach a verdict on the count of being in possession of

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 Balanga to 188 months in prison.

The court enhanced Balanga's sentence based on his three prior

convictions in Colorado for second degree burglary, which the

district court counted as violent felonies. Balanga now appeals

his conviction and sentence.

II.

On appeal, Balanga argues that there was insufficient evidence

to support his conviction for being in possession of the .22

caliber rifle and the ammunition found in his basement. We must

affirm a jury verdict if, taking all facts in the light most

favorable to the verdict, a reasonable juror could have found the
 Balanga does not challenge that he knew of the .22 caliber

2

rifle and the ammunition that was stored in his basement. See

Reply Br. at 2 n.1 (acknowledging that evidence “precludes him from

effectively arguing for a reversal due to insufficient evidence of

knowledge”).

-4-

defendant guilty of the charged 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 that

he did not possess a key to his basement door's padlock while

Dennis 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 ammunition and

therefore did not possess them. We disagree. 2

To convict Balanga of being a felon in possession of a

firearm, 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 the

firearms were stored. United States v. Mabry, 3 F.3d 244, 247 (8th

Cir. 1993) (quoting United States v. DePugh, 993 F.2d 1362, 1364

(8th Cir. 1993)) (emphasis added by Mabry). "In the absence of

evidence refuting the normal inference of dominion, showing that a

firearm was discovered at the defendant's residence suffices to

prove constructive possession." Mabry, 3 F.3d at 247 (rejecting

argument that defendant did not possess shotguns stored in his home

because they were in a room accessible only through his mother's

locked bedroom).

In this case the jury could have reasonably concluded that

Balanga failed to refute the normal inference of dominion over his

own home. While there was some testimony at trial to support

Balanga's assertion that he did not have a key to his own basement
 At a state proceeding, Lindstrom had testified that Balanga 3

had no key to the basement when it contained the .22 rifle, but at

Balanga's federal trial Lindstrom indicated that she had lied at

the state proceeding at Balanga's request. See Trial Tr. at 105-

06. Lindstrom testified at trial that Balanga might have retained

a key during the period in question. See id. at 122-23.

 Balanga has not explained why his alleged lack of a key to

4

his basement door's padlock would have prevented him from accessing

his basement. Balanga has not suggested that he could not have

retrieved a key that was on loan, nor that the padlock could not

have been disabled by a locksmith. Indeed, Balanga, a thriceconvicted burglar, was apparently somewhat adept at cutting

padlocks off of doors himself. See Presentence Investigation

Report (PSR) at ¶ 22 (explaining that Balanga's accomplice in a

burglary "advised authorities Balanga would cut off the padlock

securing the unit and install his own padlock. He would then

return at a more convenient time to open the unit and remove the

merchandise.").

-5-

during the period in question, there was also evidence that Balanga

in fact retained a key. See Trial Tr. at 122-23 (Lindstrom

testimony). When presented with such conflicting testimony, "[i]t 3

is the jury's duty, not ours, to review the credibility of these

witnesses and to weigh their testimony." United States v. Logan,

49 F.3d 352, 360 (8th Cir. 1995). Even without this conflicting

testimony, the jury could have reasonably rejected as incredible

the testimony that Balanga locked himself away from his own

basement. See Mem. & Order, reprinted in Appellant's Add. at 3

("The evidence regarding the key or keys was a bit incredible. The

jury may well have determined that no one voluntarily locks

themselves away from their washer and dryer and clean and soiled

laundry for an indeterminate period.").4

III.

Balanga next argues that the district court erred in relying

on an Eighth Circuit Model Jury Instruction on the meaning of

"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 instructions, we recognize that the district

court has wide discretion in formulating the instructions and will

affirm if 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 read:

Possession: Key to padlock You have been instructed that

possession means "dominion and control." In determining

whether Greg Balanga had "dominion and control" over the

Mossberg .22 caliber rifle identified in Count Three and

the ammunition listed in Count Four which were found in

the locked basement of 311 North 19th Street, you must

determine whether he had "dominion and control" over the

key to the locked door. If he did not have "dominion and

control" over the key to the locked door, he cannot have

had dominion and control over the Mossberg .22 caliber

rifle identified in Count Three and the ammunition in

Count Four. United States v. Wright, 24 F.3d 732 (5th

Cir. 1994); United States v. Eldridge, 984 F.2d 943 (8th

Cir. 1993).

Reprinted in Appellant's Br. at 23. Rejecting the requested

instruction, the district court issued Eighth Circuit Model Jury

Instruction Number 8.02 (1996), which provides, in part:

A person who knowingly has direct physical control over

a thing, at a given time, is then in actual possession of

it.

A person who, although not in actual possession, has

both the power and the intention at a given time to

exercise dominion or control over a thing, either

directly or through another person or persons, is then in

constructive possession of it.

Reprinted in Appellee's Br. at 20.
 Balanga not only failed to raise this issue in the district 5

court, but Balanga's counsel strenuously argued against the

district court addressing the factual circumstances of Balanga's

previous convictions. See Sentencing Tr. at 15 ("[Y]ou're [the

district court] not supposed to get involved in a factfinding

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 factfinding

for this, but look at the scheme 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 previous

convictions.

-7-

The district court did not abuse its discretion in rejecting

Balanga's proposed jury instruction. We have recently held that a

jury instruction patterned after Model Jury Instruction Number 8.02

"accurately stated the legal definitions of the various types of

possession, including constructive possession." United States v.

Smith, 104 F.3d 145, 148 (8th Cir. 1997). By contrast, Balanga's

requested jury instruction improperly assumed that Balanga's

immediate possession of a key was necessary for him to have

dominion over the firearm in his basement. As our decision in

Mabry makes clear, such dominion may be inferred, and possession 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 failed

to examine the factual circumstances underlying Balanga's three

previous convictions in Colorado for second degree burglary, the

district court erred in enhancing Balanga's sentence pursuant to 18

U.S.C. § 924(e)(1) (1994). Because Balanga failed to raise this

argument in the district court, we review this argument only for

plain error resulting in a miscarriage of justice. See United

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 specifically

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, 72

F.3d 77, 80 n.1 (8th Cir. 1995). Because Balanga had previously

been convicted on three occasions of second degree burglary of

storage units in Colorado, the district court determined that

§ 924(e)'s fifteen-year minimum sentence applied, and sentenced

Balanga accordingly.

In Taylor v. United States, 495 U.S. 575 (1990), the Supreme

Court analyzed 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 any

crime,regardless of its exact definition or label, having

the basic elements of unlawful or unprivileged entry

into, or remaining in, a building or structure, with

intent to commit a crime.

Taylor, 495 U.S. at 599. Where a state's burglary statute

penalizes conduct which does not fall into this generic definition,

a sentencing court should examine whether, in the specific

circumstances of a defendant's previous conviction for burglary,

"the charging paper and jury instructions actually required the

jury to find all the elements of generic burglary in order to

convict the defendant." Id. at 602.

Colorado's second degree burglary statute provides that:
 The government conceded at oral argument that Colorado's

6

second degree burglary statute is actually broader than generic

burglary. While we question whether this is an accurate evaluation

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 structure'" (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 unlawfully

in a building or occupied structure with intent to commit

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

by the Court in Taylor, Balanga contends that the district court

should have examined the facts presented in his charging papers to

ensure that he had not been convicted for merely breaking an

entrance into the storage units that he burglarized.6

Assuming that the Colorado statute is broader than generic

burglary and that the district court erred in not examining

Balanga's Colorado charging papers, Balanga still has the burden of

demonstrating that a miscarriage of justice will occur if this

hypothetical error is not corrected. See Petty, 1 F.3d at 697. 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 storage

units.

Balanga has not presented any evidence, nor has he even

alleged, that his prior convictions for second degree burglary

resulted from merely breaking an entrance into the storage units in

Colorado. In the Presentence Investigation Report (PSR), the
 While raising a variety of challenges to other factual

7

statements in his PSR, see PSR Add. at 1-5, Balanga has not

challenged the PSR's descriptions of his Colorado burglary

convictions. See id. By failing to make an objection, Balanga

deprived the prosecutor of an opportunity to submit evidence

supporting the PSR's statements to the sentencing court. See

Woodall v. United States, 72 F.3d 77, 80 (8th Cir. 1995) ("To

establish that [the defendant's prior] burglary convictions were

violent felonies under Taylor, the sentencing court needed to

determine either that the applicable [state] statutes, or the

indictments or jury instructions in [the defendant's] cases,

revealed 'generic' burglaries. The PSR did not contain that

information. If [the defendant's] counsel had timely objected on

-10-

United States probation officer reported that, for each of

Balanga's previous burglaries, items had been stolen from the

storage units. See PSR at ¶¶ 20-22 (describing June 24, 1987

conviction for second degree burglary in Denver County District

Court in Denver, Colorado), ¶¶ 23-24 (describing May 26, 1987

conviction for second degree burglary in Jefferson County District

Court in Golden, Colorado), ¶¶ 24-27 (describing October 1, 1987

conviction for second degree burglary in Adams County District

Court 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 Cir. 1993); see also Woodall, 72 F.3d

at 80 ("Generally, the government establishes prior violent

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 officer 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 additional

evidence regarding the disputed facts.") (quotations, citations,

alterations, and note omitted).7
that ground, the probation officer or the government could have

supplied the missing information prior to or at the sentencing

hearing.").

While not challenging the PSR's description of his previous

convictions for second degree burglary in Colorado, Balanga did

file an objection to the PSR insisting that he is actually innocent

of the burglary convictions. See Statement of Gregory Balanga

(July 15, 1996) (stating that Balanga had purchased a U-Haul load

of stolen items from Frank Hernandez without knowing that they were

stolen and sold them at a flea market). Balanga stipulated at

trial that he had, in fact, been convicted of second degree

burglary three times in Colorado state courts, see Trial Tr. at 66,

and conceded at oral argument that two of these convictions were

pursuant to guilty pleas. Balanga does not suggest that his prior

convictions have been overturned 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 has

occurred. The description of Balanga's prior convictions contained

in the PSR demonstrates that he did more than merely break an

entrance into storage units; rather, to obtain stolen items it was

necessary for him to enter the burglarized storage units.

Balanga's prior convictions for second degree burglary are

therefore consistent with convictions for generic burglary under

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.