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The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District

Court for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1402

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United States, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Lemont Amos, * [UNPUBLISHED]

*

Appellant. *

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Submitted: October 17, 2007

Filed: October 25, 2007 

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Before BYE, BOWMAN, and SMITH, Circuit Judges.

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PER CURIAM.

A jury convicted Lemont Amos on a charge of being a felon in possession of

a firearm. The District Court1

 sentenced him to seventy months in prison. Amos

appeals, challenging both his conviction and his sentence. We affirm.

On September 18, 2005, at about 2:00 a.m., tow truck operator William Benfer,

Jr., was following a white Cadillac, driven by a man he later identified as Amos,

westbound on 31st Street in Kansas City, Missouri. Amos was driving erratically,
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making it difficult to pass him, so Benfer began honking, flashing his lights, and

tailgating the Cadillac. When the vehicles were stopped side by side at a traffic light,

Amos pointed an orange-tipped BB gun at Benfer. A few minutes later, when the two

were again stopped next to each other at a traffic light, Amos pointed a silver handgun

at him. At this point, Benfer called his dispatcher to report the incident, his location,

and the Cadillac's license plate number, and the dispatcher notified the police. The

Cadillac's registration led police to Amos's residence. 

When two uniformed police officers arrived at the residence in their marked car

at about 2:15 a.m., they saw Amos standing near a white Cadillac parked in the

driveway. The officers identified themselves and ordered Amos to show his hands

and move toward them, but he moved toward the house instead. Amos continued to

refuse to obey the officers, but they caught up to him on the porch before he was able

to get into the house and tried to handcuff him. Amos resisted and a struggle

followed. As the officers took Amos to the ground, a shiny object fell from his pocket

or waistband. After Amos was handcuffed, one of the officers recovered a silver,

snub-nosed .38 caliber revolver from the area of the struggle. No identifiable

fingerprints were recovered from the gun. At trial, Amos's defense was summed up

by the testimony of Eddie Wharton, who said he had approached Amos just moments

before the police arrived and offered to sell him the revolver, but Amos had slapped

the gun out of Wharton's hands, and it had landed where the officer found it. 

For his first issue on appeal, Amos argues that the District Court erred in

instructing the jury that "possession" may be actual or constructive because, he

contends, there was insufficient evidence from which a jury could find that he

constructively possessed the handgun. Amos first raised this issue in his motion for

judgment of acquittal or a new trial. Because he did not object to the instruction when

it was given, we review only for plain error. See United States v. Ramon-Rodriguez,

492 F.3d 930, 938 (8th Cir. 2007). That is, Amos cannot prevail unless he

demonstrates error that is not only clear under the law but also affects his substantial
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rights. See id. On this record, even assuming it might have been error to give a

constructive possession instruction, we conclude there was no plain error because

Amos's substantial rights were not affected.

As for his sentence, Amos challenges the four-level enhancement to his base

offense level that the District Court imposed under the Sentencing Guidelines for

using or possessing a firearm in connection with another felony. We review the

court's factual findings for clear error and its application of the Guidelines de novo.

United States v. Thomas, 480 F.3d 878, 881 (8th Cir. 2007), petition for cert. filed,

No. 07-6424 (Sept. 7, 2007). The record amply supports a finding by a preponderance

of the evidence that Amos possessed and used a handgun to threaten Benfer, a felony

in Missouri.

Amos again takes exception to the jury instruction defining "possession," this

time to challenge his sentence. According to Amos, the jury, which issued a general

verdict, may have convicted him based on constructive possession of the revolver,

while actual possession of the gun would be required for the enhancement to apply.

He contends that this scenario results in a violation of the Supreme Court's decision

in United States v. Booker, 543 U.S. 220 (2005), because the jury may not have found

beyond a reasonable doubt that he actually possessed the handgun. But a jury finding

is not required. Since Booker, we have held that if the Guidelines are applied as

advisory instead of mandatory, as they were here, then the sentencing judge may find

facts by a preponderance in order to increase a base offense level using a Guidelines

enhancement. See United States v. Hines, 472 F.3d 1038, 1040 (8th Cir.) (per

curiam), cert. denied, No. 07-5148, 2007 WL 2005142 (U.S. Oct. 1, 2007).

Finally, Amos argues that the District Court erred in denying his motion for

judgment of acquittal or, in the alternative, a new trial. We disagree. Upon de novo

review, viewing the evidence in the light most favorable to the jury verdict, we

conclude there was sufficient credible evidence to prove beyond a reasonable doubt
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that Amos possessed the revolver in question. See United States v. Rastegar, 472 F.3d

1032, 1035 (8th Cir. 2007) (standard of review).

The judgment of the District Court is affirmed.

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