*The Honorable Kathleen M. O’Malley, United States District Judgefor the Northern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0183P (6th Cir.)File Name: 00a0183p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.CHESTERL.ADAMS,Defendant-Appellant.;>1No. 98-6522Appeal from the United States District Courtfor the Western District of Tennessee at Memphis.No. 97-20267—Julia S. Gibbons, Chief District Judge.Argued: March 6, 2000Decided and Filed: June 1, 2000Before: SILER and GILMAN, Circuit Judges;O’MALLEY, District Judge.*_________________COUNSELARGUED:Stephen B. Shankman, OFFICE OF THEFEDERAL PUBLIC DEFENDER FOR THE WESTERNDISTRICT OF TENNESSEE, Memphis, Tennessee, for2United States v. AdamsNo. 98-6522Appellant. Tony R. Arvin, ASSISTANT UNITED STATESATTORNEY, Memphis, Tennessee, for Appellee.ON BRIEF:Stephen B. Shankman, OFFICE OF THEFEDERAL PUBLIC DEFENDER FOR THE WESTERNDISTRICT OF TENNESSEE, Memphis, Tennessee, forAppellant. Tony R. Arvin, ASSISTANT UNITED STATESATTORNEY, Memphis, Tennessee, for Appellee._________________OPINION_________________RONALD LEE GILMAN, Circuit Judge.Chester Adamsand his brother, Terry Adams, committed a series ofcarjackings and armed robberies in Memphis, Tennesseeduring August and September of 1996. (For the sake ofsimplicity, this opinion will refer to the two brothers by theirfirst names.) On June 25, 1998, a federal grand jury in theWestern District of Tennessee returned a twenty-six countindictment against Chester, charging him with carjacking,robbery, attempted robbery, and possessing firearms andammunition as a convicted felon. Chester was tried andconvicted on all counts. The district court sentenced him toa term of life plus 205 years, and he was ordered to pay$23,890 in restitution. In this appeal, Chester raises fourchallenges to his conviction, sentence, and restitution order.For the reasons set forth below, weREVERSEthe districtcourt’s sentencing on one of the four counts of firearmspossession andAFFIRMas to the remainder of the judgment,sentence, and restitution order.I. BACKGROUNDA. Factual backgroundThe first known crime committed by the Adams brotherswas a carjacking on August 15, 1996, during which they heldup the driver of a black 1996 Lexus at a self-serve carwash inmidtown Memphis. The brothers next attempted to rob aKroger grocery store. Early in the morning of August 26,No. 98-6522United States v. Adams11payment would be impossible.Id. at 982. Chester, on theother hand, was only twenty-nine years old at the time of hissentencing and has a life sentence during which to pay off his$23,890 restitution obligation through the Federal Bureau ofPrisons’ Inmate Financial Responsibility Program. Underthese circumstances, the amount of the restitution order doesnot constitute an abuse of the district court’s discretion.III. CONCLUSIONFor all of the reasons set forth above, weREVERSEthedistrict court’s sentencing as to count twenty-six andAFFIRMas to the remainder of the judgment, sentence, andrestitution order.10United States v. AdamsNo. 98-6522finding, we affirm Chester’s three-level sentencingenhancement.D. Restitution orderChester finally argues that, pursuant to the recent case ofUnited States v. Dunigan, 163 F.3d 979 (6th Cir. 1999), thedistrict court erred in ordering him to pay $23,890 inrestitution. This court inDuniganheld that a district courtmust consider “the amount of the loss sustained by any victimas a result of the offense, the financial resources of thedefendant, the financial needs and earning ability of thedefendant and the defendant’s dependents, and such otherfactors as the court deems appropriate” when orderingrestitution.Id. at 981. Chester contends that “[t]he districtcourt made no finding that the defendant had even a minimalchance to pay almost $24,000 in restitution.”We review de novo whether a restitution order is legallypermissible.See Dunigan, 163 F.3d at 981. If a restitutionorder is appropriate, the amount of restitution will not bedisturbed unless the district court abuses its discretion.Seeid.We conclude that the district court in the present case didnot abuse its discretion in fixing the amount of restitution.First, the burden is on the defendant to demonstrate that arestitution order far exceeds his resources and earningpotential.See id. at 982;see also United States v. Frost, 914F.2d 756, 774 (6th Cir. 1994) (holding that a district courtneed not make specific findings concerning a defendant’sfinancial condition). Chester has not made such a showing inthis case. Second, a restitution order is permissible even ifthe defendant lacks the present ability to pay.See UnitedStates v. Blanchard, 9 F.3d 322 (6th Cir. 1993).The fact situation presented inDuniganwas unusual and isdistinguishable from that of the present case. InDuniganthedistrict court ordered the indigent defendant, whose priorincome had been under $2,000 a month, to pay the relativelyenormous sum of $311,605 within the three-year period of hissupervised release.See Dunigan, 163 F.3d at 980.Onappeal, this court found that, “absent a miracle,” such aNo. 98-6522United States v. Adams31996, with the store still closed, they climbed atop thebuilding and began cutting a hole through the roof. Theywere armed with 9-millimeter handguns and were carryingpolice radio scanners. As they were cutting the hole,however, it began to rain, and the water leaking through thehole set off the store’s alarm. At that point, the Adamsbrothers abandoned their plan.On August 29, 1996, the brothers successfully carried outa similar plan at the nearby Walgreens drugstore. They cut ahole in the store’s roof before the store opened and Terrydescended into the store. Chester waited across the street andserved as a look-out. When the manager and bookkeeperarrived, Terry forced them to open the store’s safe atgunpoint. He then tied up the employees and fled with themoney.The Adams brothers’ next crime was another carjacking onthe night of August 31, 1996, during which they held up awoman and stole her Nissan Pathfinder. Then, onSeptember 3, 1996, the brothers robbed an employee ofSimply Six Fashions as she was attempting to deposit thestore’s receipts at a bank in midtown Memphis.Two days later, the brothers entered the EZ Pawn Shop inMemphis wearing masks and carrying handguns. Theysprayed the shop’s employees and customers with pepperspray and stole twelve handguns from the store.At approximately 2 a.m. on the morning of September 12,1996, Memphis Police Officer Donna Roach spotted thestolen black Lexus in the parking lot of an Exxon Tigermart.Officer Roach saw Terry get into the Lexus with Chester. Shethen pulled up beside the vehicle to get a better look at thetwo individuals in the front seat. At the time, Officer Roachwas in plainclothes and was driving an unmarked car. Whenthe brothers drove off, Officer Roach followed them. At first,the brothers drove slowly, making numerous turns onto sidestreets. They then picked up speed, while still making manyturns. Officer Roach followed throughout. Finally, thebrothers pulled into the driveway of a house and stopped.4United States v. AdamsNo. 98-6522Officer Roach parked her car a block away. Chester andTerry then opened fire on Officer Roach’s car from inside theLexus, firing ten to fifteen shots. Officer Roach duckedbeneath her dashboard, quickly backed away, and called forassistance.Police officers found the Lexus about a half hour later. Ithad been set on fire in an abandoned lot. The officersdiscovered a Ruger 9-millimeter handgun at the right rear tireof the car. Later in the day on September 12, 1996, theAdams brothers carjacked a Ford Taurus at a conveniencestore in midtown Memphis. The next day, they robbed themanager of a Fox Photo store as he was entering a midtownMemphis bank to make a deposit. Then, on September 20,they committed two more armed carjackings, stealing aHonda Civic and a Toyota Camry.On the following morning, September 21, the brothersrobbed an Ace America Cash Express store. As the store’sclerk was unlocking the door, Chester grabbed her and pulledher inside the store. He then forced her, at gunpoint, to openthe store’s safe.On the night of September 25, police officers observed theAdams brothers in midtown Memphis. When approached bythe officers, the two split up and ran. Chester was caughtshortly thereafter by two of the officers. As he ran, hediscarded a maroon shaving kit bag that was found to containthe keys to two of the carjacked vehicles and approximatelythree thousand dollars in cash wrapped in an Ace AmericaCash Express wrapper. Officers also found a Jennings Bryco9-millimeter handgun and a police scanner in a weeded areathat Chester had run through moments before being captured.The handgun was later determined to be one of the guns takenin the EZ Pawn Shop robbery.Other officers chased after Terry. When Terry turned andpointed a gun at a pursuing officer, the officer shot andwounded him. Terry was found to have a 9-millimeterhandgun, a police scanner, and the driver’s license of one ofthe carjacking victims in his possession. The next day, onNo. 98-6522United States v. Adams9three counts of firearms possession because there was noshowing that the guns were stored or acquired separately).This will not affect Chester’s overall sentence, however,because Chester was sentenced to concurrentlife terms onthese four counts.C. Sentencing as to count fourteen—enhancement forassaulting a police officerChester received a three-level enhancement on countfourteen (one of the firearm possession counts) for assaultingOfficer Roach by firing at her car on the night of September12, 1996. The Sentencing Guidelines provide for anenhancement if the defendant, “knowing or having reasonablecause to believe that a person was a law enforcement orcorrections officer, assaulted such officer in a manner creatinga substantial risk of serious bodily injury.” U.S.S.G.§ 3A1.2(b). Chester argues on appeal that he did not know orhave reasonable cause to believe that Officer Roach, who wasnot in uniform and was driving an unmarked car on the nightof September 12, was a law enforcement officer.The district court found that Chester did know or havereasonable cause to believe that Officer Roach was a policeofficer. This finding was based on a “whole sequence ofevents,” during which Officer Roach first pulled up alongsidethe Adams brothers’ car and watched them, then pursuedthem along a circuitous route for an extended time, and cameto a stop a block away when the brothers turned into adriveway. Finally, the district court noted that the brothersfired ten to fifteen shots at Officer Roach’s car.A district court’s finding at a sentencing proceeding that thedefendant knew or had cause to believe that he was assaultinga law enforcement officer will not be disturbed unless it isclearly erroneous.See United States v. Farrow, 198 F.3d 179,196 (6th Cir. 1999). After observing Officer Roach’sinvestigative behavior and then opening fire on her vehicle,Chester cannot plausibly maintain that he reasonably believedOfficer Roach to simply be an inquisitive civilian. Becausethe totality of the circumstances supports the district court’s8United States v. AdamsNo. 98-6522review this omission under the “plain error” standard.SeeUnited States v. Christian, 786 F.2d 203, 213 (6th Cir. 1986)(holding that “[a]ny objection to lack of instruction waswaived by defendant’s failure to make timely request for alimiting instruction” and proceeding to review the omissionfor “plain error affecting substantial rights”). “Plain errorrequires a finding that, taken as a whole, the jury instructionswere so clearly erroneous as to likely produce a gravemiscarriage of justice.”See United States v. Piccolo, 723F.2d 1234, 1238 (6th Cir.1983).In light of the fact that both the indictment and the evidencedemonstrated incontestably that the firearms charged incounts thirteen, fourteen, and twenty-five were possessed inseparate places and at separate times, we do not believe thatthe district court’s failure to instruct as to separate possessionconstituted a grave miscarriage of justice.See United Statesv. Bonavia, 927 F.2d 565, 570-71 (11th Cir. 1991) (holdingthat a district court’s failure to instruct the jury regardingseparate possession was not plain error where there wassufficient evidence adduced to find that the defendantpossessed the two weapons on separate occasions).Chester does raise a valid objection, however, to theappropriateness of count twenty-six of the indictment as aseparate charge. Chester dropped or discarded the Smith &Wesson .380-caliber handgun—charged in count twentyfive—when he jumped out of the moving pickup truck onSeptember 7, 1997. When the police caught up with him afew minutes later, they discovered a .380-caliber ammunitionclip on his person, for which Chester was charged separatelyin count twenty-six. Aside from this brief gap in the time ofpossession, the government introduced no evidencedemonstrating that Chester stored or acquired the ammunitionclip separately from the gun.Because there was no showing that Chester separatelystored or acquired these items, we reverse Chester’sconviction on count twenty-six.SeeRosenbarger, 536 F.2dat 721 (reversing the defendant’s conviction on two of hisNo. 98-6522United States v. Adams5September 26, 1996, police detectives questioned Chesterafter reading him hisMirandarights. Chester admitted thathe had participated in the carjackings and robberies detailedabove. He also admitted to shooting at Officer Roach.Chester and Terry escaped from custody several monthslater. In the early morning hours of September 7, 1997, policeofficers spotted two men in downtown Memphis driving aGMC pickup truck that had been reported stolen in acarjacking a few days earlier. A high speed chase ensued. Atone point, the pickup truck slowed down momentarily andChester jumped out from the passenger side of the vehicle.The pickup then sped off, eluding the police. The policeapprehended Chester after a brief chase. When he wascaught, Chester was wearing a high quality bullet-proof vestand a handgun holster that held a loaded handgun clipcontaining .380 caliber ammunition. Officers found a .380-caliber Smith & Wesson handgun on the ground at the spotwhere Chester had jumped out of the pickup truck.B. Procedural backgroundOn July 24, 1998, a jury convicted Chester on all twenty-sixcounts of the indictment. The district court sentenced him toa total term of life plus 205 years, to be served consecutively.Chester was also ordered to pay restitution of $23,890 to thevarious victims of his crimes.II. ANALYSISA. Conviction as to counts three and four—attemptedrobberyCount three of the indictment charged Chester withattempting to rob the Kroger grocery store on August 26,1996 in violation of the Hobbs Act, 18 U.S.C. § 1951. Countfour charged Chester with carrying and using a firearm duringand in relation to this attempted robbery. Chester claims thatthere was insufficient proof to support his convictions onthese two counts because the evidence, at most, supports a6United States v. AdamsNo. 98-6522finding that he intended to burglarize the Kroger store, not robit.A conviction must be sustained if “anyrational trier of factcould have found the essential elements of the crime beyonda reasonable doubt.”Jackson v. Virginia, 443 U.S. 307, 319(1979) (emphasis in original). In reviewing sufficiency of theevidence claims, a court must view the evidence in the lightmost favorable to the prosecution.See United States v.Talley, 164 F.3d 989, 996 (6th Cir.),cert. denied, 526 U.S.1137 (1999) . Robbery is defined as “the unlawful taking orobtaining of personal property from the person or in thepresence of another, against his will, by means of actual orthreatened force, or violence, or fear of injury . . . .” 18U.S.C. § 1951(b). Burglary, in contrast, does not require theuse or threat of force, and consists simply of the unlawful orunprivileged entry into a building or structure with the intentto commit a crime.See Taylor v. United States, 495 U.S. 575,599 (1990).Conviction for attempting to commit a crime requires “[t]heintent to finish the crime, coupled with affirmative actstoward that end.”United States v. Calloway, 116 F.3d 1129,1136 (6th Cir. 1997). Once a defendant takes a “substantialstep” towards the completion of the crime, however,abandonment of the crime is not a defense.United States v.Shelton, 30 F.3d 702, 705-06 (6th Cir. 1994).Chester admitted that he and his brother began to drill ahole in the Kroger store’s roof with the intent to enter andcommit a crime. The relevant question, then, is whether theirintent was to steal from the store and leave before it opened,or to wait inside for an employee to arrive and commit arobbery.When viewed in the light most favorable to thegovernment, the facts support a finding that the Adamsbrothers intended to rob the Kroger store. Both men werecarrying guns that morning and, until they were interrupted bythe store’s alarm, they were following the identical plan thatthey successfully executed three days later in robbing theNo. 98-6522United States v. Adams7Walgreens drugstore. A reasonable trier of fact couldconclude from this circumstantial evidence that the Adamsbrothers intended to rob the Kroger store.B. Sentencing as to counts thirteen, fourteen, twentyfive, and twenty-six—felony possession of a firearmor ammunitionChester next challenges the district court’s imposition ofseparate sentences for four counts of being a felon inpossession of a firearm or ammunition. These counts arebased upon his possession of three handguns and oneammunition clip. The appropriate test when multipleweapons are confiscated is set forth inUnited States v.Rosenbarger, 536 F.2d 715, 721 (6th Cir. 1976): “[O]nly oneoffense is charged under the terms of § 1202(a)(1) regardlessof the number of firearms involved, absent a showing that thefirearms were stored or acquired at different times or places.”It is the government’s burden to establish separate offensesunder the statute.See id.The government met its burden in this case as to three ofthe four counts. It is clear from the face of the indictment thatthe Bryco 9-millimeter handgun charged in count thirteen, theRuger 9-millimeter handgun charged in count fourteen, andthe Smith & Wesson .380-caliber handgun charged in counttwenty-five were each discovered by the police on separateoccasions and in different places. Each gun thereforeproperly served as the basis for a separate violation of 18U.S.C. § 922(g).SeeUnited States v. Killebrew, 560 F.2d729, 734 (6th Cir. 1977) (stating, for the guidance of thedistrict court on remand, that a conviction on two separatecounts of firearms possession was appropriate where theevidence indicated that the defendant had acquired the twoweapons on separate occasions).Chester nevertheless argues that the district court erred byfailing to explicitly instruct the jury to determine whetherthese weapons were separately stored or acquired. BecauseChester failed to contemporaneously object to the court’sfailure to give an instruction on separate possession, we