January 11, 2016.
from United States District Court for the Eastern District of
Missouri - Cape Girardeau.
United States of America, Plaintiff - Appellee: John Nicholas
Koester Jr., Assistant U.S. Attorney, U.S. Attorney's
Office, Eastern District of Missouri, Cape Girardeau, MO.
Lee Dixon, Defendant - Appellant, Pro se, U.S. Penitentiary,
Lionel Lee Dixon, Defendant - Appellant: Scott Tilsen,
Assistant Federal Public Defender, Federal Public
Defender's Office, Cape Girardeau, MO.
LOKEN, GRUENDER, and KELLY, Circuit Judges. KELLY, Circuit
Lionel Dixon pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced him to 48 months'
imprisonment. Dixon appeals his sentence, arguing that the
district court erred in applying a four-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6)(B). We affirm.
21, 2014, Dixon was involved in a confrontation with a
neighbor during which Dixon retrieved a pistol and threatened
the neighbor with the weapon. After an unidentified observer
placed an emergency phone call, police located and arrested
Dixon and confiscated the firearm. An officer subsequently
attempted to test-fire the pistol and discovered that it did
not function due to an issue with the gun's firing
pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). At Dixon's
sentencing hearing, the Government pursued a four-level
enhancement under section 2K2.1(b)(6)(B) of the sentencing
guidelines because Dixon had used the weapon in connection
with a felony offense--the crime of " [e]xhibit[ing], in
the presence of one or more persons, [a] weapon readily
capable of lethal use in an angry or threatening
manner." Mo. Rev. Stat. § 571.030.1(4). Dixon
objected to this enhancement. He argued that because the gun
was not functional, it did not meet the Missouri
statute's requirement that the weapon be " readily
capable of lethal use." Although the court agreed with
Dixon's reasoning, it found the argument foreclosed by
previous decisions of the Missouri Supreme Court.
district court's application of the enhancement resulted
in a guidelines range of 57-71 months' imprisonment (as
opposed to the 37-46 month range that would have applied
without the enhancement). Acknowledging the circumstances of
the offense and the fact that the pistol was not functional,
the district court varied downward and sentenced Dixon to a
term of 48 months' imprisonment. Dixon now appeals,
renewing his argument that he did not violate section
571.030.1(4) of the Missouri statutes because a weapon must
be functional in order to be " readily capable of lethal
use" under the statute.
2K2.1(b)(6)(B) of the Guidelines Manual provides that "
[i]f the defendant [u]sed or possessed any firearm or
ammunition in connection with another felony offense,"
then the court should increase the offense level by four
levels. " In applying § 2K2.1(b)(6) when the
defendant has not been convicted of another state or federal
felony offense, the district court must find by a
preponderance of the evidence that another felony offense was
committed, and that use or possession of the firearm
'facilitated' that other felony." United
States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009)
(quoting U.S.S.G. § 2K2.1 cmt. n.14(A)). The legal
conclusions a district court reaches in order to apply this
enhancement are reviewed de novo, and the factual
findings supporting the enhancement are reviewed for clear
error. United States v. Rodriguez, 711 F.3d 928, 938
(8th Cir. 2013).
law prohibits as one of several " unlawful uses of
weapons" the knowing " [e]xhibit[ion], in the
presence of one or more persons, [of] any weapon readily
capable of lethal use in an angry or threatening
manner." Mo. Rev. Stat. § 571.030.1(4). Violation
of this provision constitutes a class D felony punishable by
up to four years in prison. Mo. Rev. Stat. § 571.030.8.
In assessing whether Dixon's conduct violated this
provision, we defer to the Missouri Supreme Court's
interpretation of the statute. See
Littrell, 557 F.3d at 617-18 (looking to state
supreme court decisions to determine whether defendant had
committed a " felony offense" under U.S.S.G. §
2K2.1(b)(6)(B)); see also Johnson v. United
States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1
(2010) (acknowledging that federal courts applying sentencing
enhancements under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(1), are " bound by" state-court
interpretations of state criminal statutes).
Missouri Supreme Court has held that a weapon qualifies as
" readily capable of lethal use" under section
571.030.1 even if it is not functional. In State v.
Wright, a defendant challenged his conviction under
the statute's prohibition against carrying a concealed
weapon, arguing that the state had failed to provide evidence
showing that the weapon in question was functional. 382
S.W.3d 902, 904-5 (Mo. 2012). The court rejected the
defendant's argument. Id. at 905. It noted that
some, but not all, of the " unlawful use of
weapons" offenses listed in section 571.030.1 include a
" special negative defense" that applies when a
defendant is " transporting" a firearm that is
" nonfunctioning." Id. at 904-05 "
Providing for this special negative defense would be
meaningless," the court explained, " if the State
always had to prove the functionality of a firearm in its
case-in-chief." Id. at 904. The court thus
found " no requirement for a firearm to be loaded or
operational for a defendant to be convicted under §