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The Honorable Jean C. Hamilton, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2958

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Billy Gene Rippee, * [UNPUBLISHED]

*

Appellant. *

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Submitted: January 21, 2009

Filed: January 28, 2009

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Before RILEY, SMITH, and BENTON, Circuit Judges.

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PER CURIAM.

A one-count indictment charged Billy Gene Rippee with being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), for

possessing a Rossi .38 caliber revolver on or about December 22, 2003. After a jury

found Rippee guilty of the offense, the district court1

 imposed a within-Guidelinesrange sentence of 327 months in prison and 3 years of supervised release. On appeal,

Rippee argues that (1) the evidence was insufficient to prove he possessed the firearm

because the government did not show that he actually or constructively possessed the
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firearm at the time of his arrest on December 22; (2) the court erred in calculating an

offense level of 34 as he did not possess the firearm in connection with a crime of

violence, see U.S.S.G. § 4B1.4(b)(3)(A); and (3) the 327-month prison sentence is

unreasonable because the court did not give a sufficient explanation or address all of

the 18 U.S.C. § 3553(a) factors. 

As to the first argument, we note the following evidence. An individual

testified that Rippee had told him he would sell a stolen .38 caliber revolver; the

individual had not seen the gun, but had reported the conversation to a law

enforcement officer. The officer testified that a few days later, on December 22, he

had questioned Rippee about the December 10, 2003 burglary of a nearby house;

Rippee had admitted breaking into the house and stealing the revolver, and had led

officers to its location near his residence. Viewing all of the evidence in the light most

favorable to the government, we conclude that a reasonable jury could find beyond a

reasonable doubt that Rippee possessed the gun. See United States v. Bloate, 534 F.3d

893, 902 (8th Cir. 2008) (standard of review), petition for cert. filed, (U.S. Dec. 4,

2008) (No. 08-728); cf. United States v. Harris, 344 F.3d 803, 804-05 (8th Cir. 2003)

(per curiam) (affirming defendant’s conviction for being felon in possession of

firearm; although defendant was not in possession of firearm on October 16, as

alleged in indictment, defendant admitted to possessing firearm on October 9; charge

of firearm possession “on or about” particular date includes possession on days

reasonably near date alleged). Moreover, even though a defense witness testified that

Rippee’s sister had shown her a gun that looked like the Rossi revolver, possession

of a firearm under section 922(g)(1) need not be exclusive. See United States v.

Smart, 501 F.3d 862, 865 (8th Cir. 2007), cert. denied, 128 S. Ct. 1258 (2008).

We also conclude that the district court did not err in calculating the offense

level because the evidence at trial supported a finding that Rippee possessed the

firearm in connection with a burglary. See United States v. Espinosa, 539 F.3d 926,

929 (8th Cir. 2008) (standard of review); United States v. Howard, 413 F.3d 861, 865
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(8th Cir. 2005) (affirming district court’s assessment of offense level 34 under

§ 4B1.4(b)(3)(A) where evidence at trial supported court’s finding that guns were

object of burglary and had potential of facilitating burglary, and defendant conceded

that burglary was crime of violence; holding that phrase “in connection with” in

§ 4B1.4(b)(3)(A) has same meaning as in former § 2K2.1(b)(5)); cf. U.S.S.G. § 2K2.1,

comment. (n.14) (phrase “in connection with” applies if firearm facilitated or had

potential of facilitating another felony offense; 4-level increase for using or possessing

firearm in connection with another felony offense applies in case where defendant

finds and takes firearm during course of burglary, even if defendant did not engage

in any other conduct with firearm during course of burglary, because presence of

firearm had potential of facilitating offense).

Finally, we hold that Rippee’s 327-month prison sentence is not unreasonable.

See United States v. Mooney, 534 F.3d 944, 946-47 (8th Cir. 2008) (district court need

not categorically recite all of § 3553(a) factors at sentencing, as long as it is clear that

court considered those factors; noting that within-Guidelines-range sentence is

accorded presumption of substantive reasonableness on appeal), petition for cert. filed,

(U.S. Dec. 12, 2008) (No. 08-7793); United States v. Gray, 533 F.3d 942, 944 (8th

Cir. 2008) (if district court references some considerations contained in § 3553(a), this

court is ordinarily satisfied that district court was aware of contents of relevant statute;

noting that when judge decides to simply apply Guidelines to particular case, doing

so will not necessarily require lengthy explanation).

The judgment of the district court is affirmed.

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