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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1721

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Billy Gene Howard, *

*

Appellant. *

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Submitted: November 19, 2004

Filed: January 5, 2005

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Before SMITH, BEAM, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

A jury convicted Billy Gene Howard on possession of a firearm, possession of

stolen firearms, and use of methamphetamine while possessing a firearm, pursuant

to 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(e), 922(j), and 924 (a)(2). Howard appeals

the district court's1

 denial of his motions for judgment of acquittal and new trial,

based on insufficient evidence. He also appeals the sentence, claiming the court

imposed an improper offense level under the Armed Career Criminal Guidelines

because he did not possess the firearm "in connection with" a burglary.
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On January 14, 2002, Howard picked up his brother and his brother's girlfriend,

Dawn Hanawalt, in order to assist his brother in avoiding an outstanding arrest

warrant on methamphetamine charges. Hanawalt, working with law enforcement,

disclosed their location to the Iowa Division of Narcotics Enforcement, and agreed

to meet with Officer Jerry Spencer. 

Hanawalt informed the officer they were staying in Room 51 of a local motel.

During the meeting, the two saw Howard drive up in a van, step out, and pace around

in front of the motel. With assistance from the local sheriff, Officer Spencer headed

towards the motel room to arrest Howard's brother. Before entering, however, the

officers arrested Howard, and during a pat-down found a key to Room 51 and drug

paraphernalia. 

Entering Room 51, the officers arrested Howard's brother and searched the

room. Searching Howard's van pursuant to warrant, officers discovered a small

amount of methamphetamine in the driver-side visor and two shotguns in the back of

the van. The guns turned out to be stolen. No fingerprints were recovered from them.

 

At the close of the government's case, Howard moved for a judgment of

acquittal, which the court denied. After trial, Howard sought a new trial, claiming

insufficiency of evidence. The district court also denied this motion. At sentencing,

the court accepted the Presentence Investigation Report, over Howard's objection,

finding that he "possessed the firearms in connection with another felony offense on

August 24, 2001, when he participated in the burglary of a residence in Cedar Falls,

Iowa." The court sentenced Howard to 300 months in prison (300 months for the

felon-in-possession charge, and 120-month concurrent terms for each of the other two

counts) based on an offense level of 34 under the Armed Career Criminal Guidelines,

U.S.S.G. § 4B1.4(b)(3)(A).
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I.

Howard appeals the denial of his motions for judgment of acquittal and new

trial, claiming the government failed to sufficiently prove he possessed the firearms,

an element of all three counts. See 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(e), 922(j),

and 924 (a)(2). This contention presents two issues, each with a distinct standard of

review. 

This court reviews de novo the denial of a motion for judgment of acquittal.

United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004). This court

reverses 

only if no reasonable jury could have found the defendant guilty beyond

a reasonable doubt. This standard is quite strict; we will not lightly

overturn the jury's verdict. If the evidence rationally supports two

conflicting hypotheses, the reviewing court will not disturb the

conviction. [T]he government's evidence need not exclude every

reasonable hypothesis of innocence.

Id. (alteration in original, internal quotations and citations omitted).

As to the motion for new trial, this court "will affirm a district court's ruling

absent a 'clear and manifest abuse of discretion.'" United States v. Frank, 354 F.3d

910, 916 (8th Cir. 2004), quoting United States v. Jiminez-Perez, 238 F.3d 970, 974

(8th Cir. 2001). A district court grants a motion for new trial only if "the evidence

weighs heavily enough against the verdict that a miscarriage of justice may have

occurred." Id. 

Viewing the evidence most favorably to the government, this court finds that

a reasonable juror would not have reasonable doubt as to Howard's possession of the

shotguns. Possession may be actual or constructive. See United States v. Jackson,

365 F.3d 649, 655 (8th Cir. 2004). Constructive possession requires that defendant
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"has dominion over the premises where the firearm is located, or control, ownership,

or dominion over the firearm itself." Id. Although constructive possession may be

established by circumstantial evidence alone, the government must show a sufficient

nexus between the defendant and the firearm; mere proximity is insufficient. Id. 

The government presented sufficient evidence linking Howard to the burglary

of the shotguns. The owner of the guns testified that on August 24, 2001, he

discovered that his home was burglarized and missing two shotguns. A neighbor

testified to seeing a van in the neighborhood while jogging early the morning of

August 23, later identifying Howard's van as identical to it. 

Howard's burglary was corroborated by testimony from fellow inmates at the

county jail. According to one inmate, Howard admitted that he and Brian

Luchtenberg stole the two shotguns and put them in his van. Another inmate testified

to overhearing this conversation, and that Howard would blame his brother for the

burglary.

At trial, Howard testified he was unaware of the guns in the van, which were

found under the back seat, covered by a blanket, not readily visible. Howard said he

had seen the guns twice before, at the home of Luchtenberg, and in his brother's

possession. He believed that his brother and a friend had stolen the guns from

Luchtenberg and put them in his van without his knowledge.

 

A reasonable jury could disregard Howard's testimony as self-serving. See

United States v. Ramirez-Jiminez, 967 F.2d 1321, 1328 (8th Cir. 2004). Howard

erroneously claims that because no evidence contradicted his testimony, the jury

improperly discredited his story. A jury is not required to accept exculpatory

testimony, even if unrebutted. Id. 
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The government sufficiently connected Howard with the stolen guns. The

district court properly denied his motion for judgment of acquittal. In addition, the

evidence at trial does not weigh so heavily against the verdict that a miscarriage of

justice occurred. The district court's denial of the motions for acquittal and new trial

are affirmed.

II.

Howard also appeals the sentence, claiming that the court erred by assessing

him an offense level of 34, because it is not authorized by U.S.S.G. § 4B1.4(b)(3)(A),

which requires that the defendant "used or possessed the firearm . . . in connection

with . . . a crime of violence." 

Howard concedes that burglary is a crime of violence. See Jackson, 365 F.3d

at 653, citing 18 U.S.C. § 924(c)(3). Howard contends only that the court improperly

found that stealing a firearm during a burglary is possession "in connection with" a

crime of violence. 

The district court's interpretation of the sentencing guideline itself is a pure

legal question, subject to de novo review. United States v. Mann, 315 F.3d 1054,

1055 (8th Cir. 2003). True, section 4B1.4(b)(3)(A) does not define the phrase "in

connection with." However, under section 2K2.1(b)(5) this court defines "in

connection with" to mean

that a firearm [1] must have some purpose or effect with respect to and

[2] must facilitate, or have the potential of facilitating another felony

offense; its presence or involvement cannot be the result of accident or

coincidence.

United States v. Fredrickson, 195 F.3d 438, 439-40 (8th Cir. 1999), quoting United

States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997) (internal quotations omitted,
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numbers added). In these cases, this court was following the Supreme Court's

decision in Smith v. United States, 508 U.S. 223, 238 (1993).

 

In light of precedent, this court finds that "in connection with" means the same

in section 4B1.4(b)(3)(A) as in section 2K2.1(b)(5). See United States v. Gary, 74

F.3d 304, 317 (1st Cir. 1996); see also United States v. Headger, 354 F.3d 792, 795

(8th Cir. 2004) (stealing firearm from a gunshop justifies an enhancement under §

2K2.1(b)(5)); United States v.Kenney, 283 F.3d 934, 936-38 (8th Cir. 2004) (stealing

firearm from parents' home justifies an enhancement under § 2K2.1(b)(5)).

 After correctly interpreting the language of section 4B1.4(b)(3)(A), the district

court made factual findings, which are reviewed for clear error. See Mann, 315 F.3d

at 1055; Fredrickson, 195 F.3d at 439. The evidence at trial and the grand jury

testimony of Brian Luchtenberg (introduced at the sentencing hearing) support the

court's findings that the shotguns were the object of the burglary and that Howard

purposely took them. Luchtenberg described how he and Howard broke into the

home and stole only the firearms and one piece of stereo equipment. According to

Luchtenberg, Howard carried out one of the guns, still in its case, and put it in the

van. Thus, the court correctly found the first prong of Fredrickson satisfied. 

The evidence also supports the finding that the gun had the potential of

facilitating the burglary. At any time during the burglary, Howard could brandish the

gun or threaten injury or death, whether or not it was loaded. The gun's presence was

neither accidental nor coincidental. See Fredrickson, 195 F.3d at 439-40.

Accordingly, Howard was properly sentenced as an armed career criminal under

U.S.S.G. § 4B1.4(b)(3)(A). 
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The mandate in this case is stayed pending the Supreme Court's resolution of

United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, ___ U.S. ___,

125 S.Ct. 11 (Aug. 2, 2004), and United States v. Fanfan, Docket 03-47-P-H (D. Me.

June 28, 2004), cert. granted, ___ U.S. ___, 125 S.Ct. 12 (August 2, 2004). See

Administrative Order Regarding Blakely Cases, United States Court of Appeals for

the Eighth Circuit, Sept. 27, 2004.

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The sentence imposed by the district court is affirmed.2

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