1 The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2384

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Allison Klanecky, * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 12, 2010 Filed: September 13, 2010

___________ Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

___________ PER CURIAM. Allison Klanecky appeals the district court’s 1 denial of his motion for acquittal after a jury found him guilty of knowin gly possessing a destructive device, components for the assembly of a grenade, which was not registered to him in the National Firearms Registration and Tran sfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and the districtcourt’s imposition of a $125,000 fine. We affirm.-2- First, Klanecky asserts that the evidence is insufficient to support his conviction and that, accordingly, his motion for judgmen t of acquittal should have been granted. “We review the sufficiency of the evid ence de novo, viewing evidence in the light most favorable to the government, resolvi ng conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Lockett , 601 F.3d 837, 840 (8th Cir. 2010) (quoting United States v. Washington , 318 F.3d 845, 852 (8th Cir. 2003)). “We will revers e only if no reasonable jury could have found the defendant guilty beyond a reasona ble doubt.” United States v. Shafer , 608 F.3d 1056, 1067 (8th Cir. 2010).

Viewed in this light, the government pr esented evidence that Klanecky resided on rural property near Wolbach, Nebraska. Three residences and multiple outbuildings, garages, and barns were locat ed on the property. Acting on a tip from Klanecky’s ex-wife, agents of the Federal Bureau of Alcohol, Tobacco and Firearms (“ATF”) executed a search warrant on this property on July 8, 2008. The agents discovered a bunker located underneath one of the residences accessible through the bathroom. The bunker contained food, supp lies, racks of clothing, and bunk beds. Agents also discovered 85 grenade bodies, or “hulls,” stored in ammunition cans located in the bunker. These grenade hulls had been “tapped.” A grenade hull is “tapped” by threading the hole at the bo ttom of the grenade hull and plugging this hole with a bolt. Testimony revealed thatwhen plugged with a bolt the grenade hulls were capable of holding explosive powder th at would render them active. An ATF agent testified that grenade hu lls are not typically sold w ith the bolt inserted. Agents also discovered reels of pyrotechnic fuse as well as fuse cut into shorter lengths. On a workbench, agents found eight unaltered grenade hulls, fuse assemblies, and a cordless drill. One of the fuse assemb lies had been drilled to accommodate the pyrotechnic fuse. Agents also discove red “a couple of hundred pounds” of black powder in the bunker.-3- An ATF technician testified that the parts found in the bunker could be readily assembled in three to five minutes into a destructive device (i .e. an operational hand grenade) by pouring black powder into a tapped grenade hull and inserting the fuse assembly. Upon exploding, such a device w ould project metal fragments. According to the technician, the items discovered in the bunker meet the definition of a combination of parts readily assembled into a destructive device.

ATF agent Tully Kessler testified that when he met Klanecky at a service station at the York, Nebraska exit on Interstate 80, in order to return to Klanecky items taken from him at his arrest, Klanecky statedthat he possessed the grenades in order “to blow up stumps.” Shirley Sterkel, a fri end of Klanecky’s, testified that she was present at the this meeting and heard Klan ecky make this statement to Agent Kessler.

To convict Klanecky of violating 26 U.S.C. §§ 5841, 5861(d), and 5871, the United States was required to prove beyond a reasonable doubt that Klanecky: (1) possessed components that could be assembled into a grenade; (2) knew the component parts could be assembled into a grenade; (3) intended to use the component parts as a grenade; and (4) the components were not registered to Klanecky in the National Firearms Regis tration and Transfer Record. Klanecky concedes that sufficient evid ence was presented to the jury to establish the first and fourth elements, and in this appeal, Klanecky asserts onl y that insufficient evidence was presented to support a finding that he knew the component parts in his possession could be assembled into a grenade and th at he intended to assemble the component parts into a grenade.

We conclude that Klanecky’s knowledge and intent were amply established, considering: (1) the agents’ testimony de scribing Klanecky’s bunker and the type and location of the grenade components contained therein; (2) testimony that these components were capable of ready assembly into operable hand grenades; and (3) Klanecky’s admission that he possessed hand grenades for the purpose of blowing2 As pertinent to the subject offense and Klanecky’s contentions in this appeal, section 3572(a) provides that “[i]n determining whether to impose a fine, and the amount . . . of a fine, the court shall consid er, in addition to the factors set forth in section 3553(a)—(1) the defendant’s in come, earning capacity, and financial resources; [and] (2) the burden the fine will impose upon the defendant.”

3 USSG §5E1.2(a) provides that “[t]he c ourt shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine .” The guideline factors to be used in determining the amount of a fine are: “(1) the need for th e combined sentence to reflect the seriousness of the offense . . . , to promote respect fo r the law, to provide just punishment and to afford adequate deterrence; (2) any evid ence presented as to the defendant’s ability to pay the fine . . . ; (3) the burden that th e fine places on the defe ndant . . . ; (4) any restitution or reparation that the defendant has made . . . ; (5) any collateral consequences of conviction . . . ; (6) whethe r the defendant previously has been fined for a similar offense; (7) the expected cost s to the government . . . ; and (8) any other pertinent equitable considerations.” Id. §5E1.2(d)(1)-(7).
-4- up stumps. Accordingly, there was suffi cient evidence presented to support his conviction, and the district court prope rly denied the motion for a judgment of acquittal.

Klanecky also asserts that in imposi ng a fine of $125,000 the district court failed to consider the factors set forth in18 U.S.C. § 3572 or United States Sentencing Commission, Guidelines Manual, §5E1.2(d) and, in particular, that the court failed to consider the fact that he does not have th e ability to pay such a fine. According to Klanecky, had the district court consideredthese factors it would have determined he does not have the financial ab ility to pay the assessed fine.

We review the imposition of a fine and the determination of its amount for clear error. See United States v. Herron , 539 F.3d 881, 888 (8th Cir. 2008). After carefully reviewing the record, we conclude that the district court indeed followed the procedural requirements of section 3572(a) 2and USSG §5E1.2(d). 3 We initially note that the fine amount was within the Guide line range. USSG §5E1. 2(c)(3). Further,4 It is true the PSR included the opini on of the United States Probation Officer that “[b]ased upon the defendant’s impendi ng prison sentence, as well as his current financial situation caused by his pending divorce, it does not appear that the payment of a fine is feasible;” however, the facts reflected in the PSR included these asset and net worth figures, and Klanecky presented no evidence to rebut these findings.
-5- the presentence report (“PSR”) found Klanecky’s assets, including jointly owned property, to total $294,127, including real estate in Grand Island and Wolbach, Nebraska, and his ne t worth to be $269,127. 4 At sentencing, as mandated by section 3572(a), the district court heard argument on, considered, and discussed: the nature and circumstances of the offense; Klanecky’ s criminal history a nd characteristics; and, the need for the sentence to reflect the seriousness of the offense, promote respect for the law, afford adequate deterrence to cr iminal conduct, and provide the defendant with needed educational and vocational trai ning, medical care, or other correctional treatment. The court’s review of th e PSR, the argument Klanecky presented at sentencing, and the district court’s co mments at sentencing further confirm that Klanecky’s income, earning capacity, and financial resources, as well as the burden that a fine would impose upon him, were also considered. Accordingly, we find that the inquiry required by section 3572(a) and section 5E1.2(d) was conducted.

Although “[i]t is incorrect for a court to impose a fine that the defendant has little chance of paying,” “[t]he defendant ha s the burden of proving that he cannot pay the fine.” United States v. Berndt , 86 F.3d 803, 808 (8th Cir. 1996). Klanecky argued at sentencing that his divorce and othe r personal circumstances rendered him incapable of paying a significant fine. Because he offered no evidence in support of this argument, however, he did not meet hi s burden of proving an inability to pay the assessed fine.-6- We affirm the judgment of the district court.

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