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United States v. Dixon

United States Court of Appeals, Eighth Circuit

May 16, 2016

United States of America, Plaintiff - Appellee
v.
Lionel Lee Dixon, Defendant - Appellant

         Submitted January 11, 2016.

          Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau.

         For 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.

         Lionel Lee Dixon, Defendant - Appellant, Pro se, U.S. Penitentiary, Inez, KY.

         For Lionel Lee Dixon, Defendant - Appellant: Scott Tilsen, Assistant Federal Public Defender, Federal Public Defender's Office, Cape Girardeau, MO.

         Before LOKEN, GRUENDER, and KELLY, Circuit Judges. KELLY, Circuit Judge, concurring.

          OPINION

         GRUENDER, Circuit Judge.

         Appellant 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[1] 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.

         On May 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 mechanism.

         Dixon 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.

         The 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.

         Section 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).

         Missouri 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).

         The 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 ยง ...


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