United States of America v. Levi Farren Miller

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2857
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Levi Farren Miller
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Eastern
____________
Submitted: May 14, 2021
Filed: September 3, 2021
____________
Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
____________
SMITH, Chief Judge.
Levi Farren Miller entered a conditional guilty plea to possession of a firearm by
a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now appeals, arguing

-- 1 of 21 --

that the district court1 made three reversible errors. First, Miller asserts that the district
court erroneously denied his motion to suppress. Second, he argues that the National
Firearms Act is unconstitutional. Third, he challenges the court’s application of several
sentencing enhancements. We affirm.
I. Background
A. Underlying Facts
Miller possessed a short-barreled shotgun in a house in Waterloo, Iowa. The
house consisted of two stories with each floor leased as apartments. Both floors had
outside access. One evening, Miller’s downstairs neighbor Takeela Latham called law
enforcement about an incident with Miller involving a firearm. According to Latham,
Miller had placed a suitcase on her back porch. Latham did not want the suitcase there
and had her friend Jarrell Cole (“Jarrell”) help her move it to Miller’s truck. Miller then
came down a set of outside stairs and walked towards the back of the house where
vehicles were parked. Latham alleged that Miller carried a shotgun and yelled
profanities. Latham also claimed that Miller had pointed the shotgun at her and Jarrell.
Waterloo Police Officer Alexander Bovy responded to the call. But when he
arrived at the residence, he did not see anyone. A second officer arrived at the
residence soon afterwards. The officers then knocked on the back door of the
residence. Latham’s minor daughter opened the door. She told the officers that her
mother had left the residence with some friends to get food. The girl’s aunt was also
inside the residence. When Officer Bovy asked if the aunt had heard people yelling, the
aunt claimed she had not heard anything.
1The Honorable Leonard T. Strand, Chief Judge, United States District Court for
the Northern District of Iowa.
-2-

-- 2 of 21 --

Next, the officers knocked on a neighbor’s door. Emmitt Johnson answered and
“initially denied knowledge of an altercation, stating he had only recently arrived at his
residence.” United States v. Miller (Miller II), No. 6:19-cr-02031-LTS-MAR-1, 2019
WL 7212306, at *2 (N.D. Iowa Dec. 27, 2019). But Johnson eventually explained that
he had heard Miller arguing with his wife, Sarabeth Miller (“Sarabeth”), though he had
not seen anyone else outside.
The officers made contact with Miller after knocking on his apartment door.
Sarabeth and Michele Randall resided in the apartment with Miller. All three told the
officers that they went outside in response to a loud noise in the back. Miller and
Sarabeth said that Miller carried a large knife when they went downstairs. They also
said that they observed Latham arguing with someone. They denied that there was a
firearm in the house. Based on his concern regarding the presence of a firearm, Officer
Bovy asked Miller if he could search his residence. Miller denied the request. The
officers’ supervisor instructed them to obtain a search warrant for the suspected
firearm.
Before the officers obtained a search warrant, they conducted a non-consensual
protective sweep of the residence. Officer Bovy took Sarabeth to the Waterloo Police
Department to give a statement. Officer Steven Thomas interviewed the other
witnesses—Latham, Jarrell, Chelsea Cole (“Chelsea”), and Kayla Borntreger—also at
the police station. With the exception of Sarabeth, these witnesses all recalled Miller
holding a shotgun with a brown stock outside his residence while repeating profanities.
Throughout her interview, Latham alleged that Miller had pointed the shotgun at her
and Jarrell. During his interview, Jarrell stated that Miller held the “shotgun in a
position of readiness to fire” and “‘pointed’ the shotgun[,] but [Jarrell] did not state
whether [Miller] pointed the shotgun at any individual.” Id. at *4. Notably, Borntreger
stated that Miller did not point the weapon at anyone. She did, however, indicate that
Miller “[w]as carrying the shotgun in a manner that would allow him to shoot quickly
if necessary.” Id. at *5.
-3-

-- 3 of 21 --

After all of the witnesses provided statements, Officer Bovy, consulting with
Officer Thomas, drafted an application for a warrant to search Miller’s residence for
the shotgun that Miller allegedly used to assault Latham. After obtaining the warrant,
the officers conducted a search and discovered “a pump action shotgun with a black
barrel and brown wood stock and foregrip propped against the door frame inside the
kitchen. A T-shirt was covering part of the barrel, and the butt of the gun was in a pan
filled with cat food.” Id. at *6 (citation omitted). The shotgun’s barrel was 17 7/8ths
inches long. Law enforcement arrested Miller.
B. Procedural History
When presented with these facts, a grand jury indicted Miller with possession
of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and
possession of a National Firearms Act short-barreled shotgun not registered to
possessor, in violation of 26 U.S.C. § 5861(d).
Miller filed several motions, including a motion to suppress, a request for a
Franks2 hearing, a motion to dismiss both counts of the indictment, and a second
motion to dismiss. The magistrate judge held a single evidentiary hearing on the
motions on October 7, 2019. Although the magistrate judge was “somewhat on the
fence about [Miller’s] entitlement to [a Franks] hearing,” he decided to “take up all the
evidence” in the interest of “judicial economy.” Mot. Hr’g Tr. at 2, United States v.
Miller, No. 6:19-cr-02031-LTS-MAR-1 (N.D. Iowa 2020), ECF No. 63. He asked if
either party had any issue with proceeding in that manner. Miller did not object.
After receiving the parties’ post-hearing briefs, the magistrate judge issued a
report and recommendation (R&R) recommending that the district court deny all of
Miller’s motions. The district court adopted the R&R and denied all of Miller’s
motions based on the following rationales.
2Franks v. Delaware, 438 U.S. 154 (1978).
-4-

-- 4 of 21 --

1. Franks Issues
In its R&R, the magistrate judge concluded that Miller “failed to satisfy his
burden to show he was entitled to a Franks hearing.” United States v. Miller (Miller I),
No. 6:19-cr-02031-LTS-MAR-1, 2019 WL 8112464, at *13 (N.D. Iowa Nov. 15,
2019). It also explained that Miller “incorrectly interpreted” his decision to “take up
all the evidence at the October hearing” to mean that Miller satisfied the burden of
showing that he was entitled to a Franks hearing. Id. at *7. In its order, the district
court explained that “any procedural error” in holding a Franks hearing, without first
determining whether Miller was entitled to it, was harmless, and Miller was not entitled
to Franks relief. Miller II, 2019 WL 7212306, at *10.
Miller made two relevant Franks arguments. First, Miller argued that Officer
Bovy intentionally or recklessly omitted Borntreger’s statement that Miller “did not
point the shotgun at anyone because [Miller] could not see her or the other witnesses,
as they all watched [Miller] from inside . . . Latham’s porch.” Id. at *5. According to
Miller, Borntreger’s statements were material to the probable-cause analysis, as they
contradicted Latham’s accusation that Miller pointed a gun at her.
According to the court, “[t]he record [did] not show [that] Officer Bovy must
have entertained serious doubts as to the truthfulness of the affidavit or had obvious
reasons to doubt the accuracy of the information he reported” when “multiple witnesses
stat[ed] [Miller] was angry and cursing while carrying a shotgun.” Miller I, 2019 WL
8112464, at *10. Moreover, “Borntreger may not have seen [Miller] ‘point’ the
shotgun, but what she saw was at least consistent with displaying a firearm in a
threatening manner,” which is also criminalized under Iowa law. Id. (citing Iowa Code
§ 708.1(2)(c)).
The court also concluded that the “omission of . . . Borntreger’s statement . . .
was not clearly critical to the issuing judge’s finding of probable cause. Even if Officer
Bovy had included her statement, the issuing judge would still have had testimony from
-5-

-- 5 of 21 --

multiple eyewitnesses that [Miller] was angry and cursing while carrying a shotgun.”
Id. at *12. And “[e]ven if . . . Borntreger did not see [Miller] point the shotgun [at
Latham and Jarrell], Officer Thomas could reasonably conclude her statement
supported the assertion that [Miller] carried the shotgun in a threatening manner.” Id.
Second, Miller “argue[d] that Officer Bovy acted with reckless disregard for the
truth when he omitted Officer Bovy’s encounters with [Latham’s daughter], the
[daughter’s] aunt, and . . . Johnson.” Id. at *10. Again, the court concluded that
“nothing in the record indicate[d] Officer Bovy must have entertained serious doubts
about the truthfulness of his statements or had any obvious reasons to doubt the
accuracy of the information he wrote in the affidavit.” Id. It reasoned, “Although the
aunt denied having heard people yelling and . . . Johnson was hesitant to acknowledge
he was aware of a verbal altercation near his residence, these events were not obvious
reasons for Officer Bovy to doubt the accuracy of the information he put in his
application” because “Officer Bovy testified that, in his experience, he sometimes has
difficulty persuading witnesses to provide him information.” Id. at *11.
These alleged omissions were also not clearly critical to the issuing judge’s
finding of probable cause because “[n]one of the omissions ha[d] any bearing on the
witnesses’ consistent statements that Miller came to the back of the house in response
to Latham and [Jarrell] moving the bag to his truck, [while] holding a shotgun in a
threatening manner and repeatedly saying ‘mother***ers.’” Miller II, 2019 WL
7212306, at *13.
Thus, the court refused to grant Miller’s motion to suppress under Franks.
2. Warrantless Entry
Next, Miller asked the district court to suppress the shotgun because the police
entered his residence without a warrant. The district court denied the request. First, it
found that exigent circumstances justified law enforcement’s entry into Miller’s
-6-

-- 6 of 21 --

residence. It concluded that the exigent circumstances justifying entry were (1) officer
safety and (2) destruction of evidence. But the court also explained that even if the
entry was unlawful, the inevitable discovery doctrine prevented suppression of the
shotgun. It noted that “Miller ma[de] no objection to [the magistrate judge’s] analysis
[on that issue] and . . . d[id] not argue that the shotgun was fruit of the warrantless
entry.” Id. at *15 n.18.
3. National Firearms Act
Next, the district court rejected Miller’s argument that the National Firearms Act
is unconstitutional under the Second Amendment. The court explained that this
argument was foreclosed by the Supreme Court’s opinion in United States v. Miller,
307 U.S. 174 (1939).
4. Sentencing
After the district court denied Miller’s motions, Miller entered a conditional
guilty plea to the possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
The presentence investigation report (PSR) identified Miller’s base offense level
as 22 because the offense involved a firearm as described in 26 U.S.C. § 5845(a) and
because Miller committed the offense subsequent to sustaining a felony conviction for
a controlled-substance offense. The PSR also recommended that the district court apply
a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Miller possessed
the shotgun in connection with the offense of assault by use or display of a dangerous
weapon, in violation of Iowa Code § 708.2(3).
Miller objected to both of these PSR recommendations. First, Miller argued that
the district court could not have found that he violated § 5845(a) because “there [was]
no evidence that [he] knew that [the shotgun barrel] was less than 18 inches.” Sent’g
Tr. at 4, United States v. Miller, No. 6:19-cr-02031-LTS-MAR-1 (N.D. Iowa 2020),
-7-

-- 7 of 21 --

ECF No. 95. The district court overruled Miller’s objection, explaining that Miller had
not presented “any authority suggesting [that the court] should go the other way,” it
was “undisputed that the barrel was shorter than 18 inches,” and “there is not a
knowledge requirement to apply the enhancement.” Id. at 8. Additionally, it “was
obviously a sawed-off shotgun”; “[i]t clearly had been altered by someone.” Id. at
96–97.
Miller also argued that conspiracy to manufacture methamphetamine is not a
controlled-substance offense. However, he raised the issue “purely for error
preservation,” acknowledging that there was contrary controlling Eighth Circuit
precedent. Id. at 8. Thus, the sentencing court overruled Miller’s objections and
concluded that he had a base offense level of 22.
Lastly, Miller objected to the application of the four-level enhancement under
§ 2K2.1(b)(6)(B) that was based on the assertion that Miller possessed the firearm in
connection with a felony offense. The felony offense was Iowa’s aggravated
misdemeanor of assault by use or display of a dangerous weapon. This offense carries
a sentence that qualifies it as a felony under the Guidelines. United States v. Anderson,
339 F.3d 720, 724 (8th Cir. 2003).
Latham and Jarrell testified at the sentencing hearing. The court stated that
“Latham was one of the worst witnesses [it had] ever seen” and “g[a]ve almost no
weight to anything she said.” Sent’g Tr. at 80. Although the court could not find “that
. . . Miller actually pointed the firearm,” it did find that the following facts were
consistent with all of the witnesses’ testimonies: (1) “[Miller] came outside and he did
have a shotgun and it was an angry, hostile situation at that point”; (2) Latham “had
been yelling,” and there was “a loud noise” from Jarrell throwing Miller’s suitcase into
his truck; and (3) “Miller didn’t [go] out[side] to make polite conversation.” Id. at
80–81.
-8-

-- 8 of 21 --

The court explained that it had “looked closely at Iowa Code 708.1 . . . and
708.2,” which defines assault. Id. at 82. And it found by a preponderance of the
evidence that Miller committed assault under both Iowa Code § 708.1(2)(b) and (c)3
“by bringing this shotgun outside with him in a hostile and confrontational situation”
and “displaying it in a manner where the other individuals were able to see that he had
it.” Id. Further, witnesses testified that they “felt threatened or concerned about the
firearm.” Id. at 82–83.
Thus, the court applied the four-level enhancement to the base offense level.
After concluding that Miller was also entitled to a three-level decrease based on
acceptance of responsibility, Miller’s total offense level was 23. In conjunction with
his criminal history category of V, the Guidelines recommended a sentence of 84 to 105
months’ imprisonment. The court sentenced him to 84 months’ imprisonment and 3
years’ supervised release.
II. Discussion
Miller urges us to hold that the shotgun must be suppressed, the National
Firearms Act is unconstitutional, and the district court erred at sentencing. We affirm
the district court on all accounts.
3Iowa Code § 708.1 defines assault accordingly:
A person commits an assault when, without justification, the person does
any of the following: . . . .
b. Any act which is intended to place another in fear of immediate
physical contact which will be painful, injurious, insulting, or offensive,
coupled with the apparent ability to execute the act.
c. Intentionally points any firearm toward another, or displays in a
threatening manner any dangerous weapon toward another.
-9-

-- 9 of 21 --

A. Motion to Suppress
Miller seeks reversal of the district court’s denial of his motion to suppress on
two bases. First, he asserts that Officer Bovy omitted material information from the
affidavit in support of the warrant to search Miller’s residence in violation of Franks.
Second, he contends that the shotgun must be suppressed because law enforcement
entered Miller’s home prior to obtaining a search warrant.
We review the denial of a motion to suppress de novo. United States v.
Mayweather, 993 F.3d 1035, 1040 (8th Cir. 2021), reh’g denied (May 19, 2021). But
the underlying factual determinations we review for clear error. Id.
We may affirm on any grounds supported by the record and will do so
unless the decision is unsupported by substantial evidence, is based on an
erroneous view of the applicable law, or in light of the entire record, we
are left with a firm and definite conviction that a mistake has been made.
Id. (cleaned up).
1. Franks Issues
Miller first argues that the affidavit supporting the warrant application to search
his residence violated Franks by omitting material evidence.4 He notes that Officer
Bovy’s affidavit (1) omitted evidence that contradicted Latham’s statement that Miller
4After holding a hearing on all of Miller’s motions, the magistrate judge “f[ou]nd
that [Miller] failed to satisfy his burden to show he was entitled to a Franks hearing.”
Miller I, 2019 WL 8112464, at *13. Miller contends that because the magistrate judge
held a Franks hearing, he was entitled to a Franks hearing. But whether Miller was
entitled to the hearing is irrelevant because, ultimately, Miller is not entitled to Franks
relief.
-10-

-- 10 of 21 --

pointed a shotgun at her and Jarrell and (2) did not include information from Officer
Bovy’s encounters with Latham’s daughter, the daughter’s aunt, and Johnson.
To succeed on his Franks challenges, Miller “must show: ‘(1) that facts were
omitted with the intent to make, or in reckless disregard of whether they make, the
affidavit misleading; and (2) that the affidavit, if supplemented by the omitted
information, could not support a finding of probable cause.’” United States v. Reed,
921 F.3d 751, 756 (8th Cir. 2019) (quoting United States v. Conant, 799 F.3d 1195,
1200 (8th Cir. 2015)). Even assuming that Officer Bovy intentionally omitted this
information from the affidavit, we affirm because Miller has not shown by a
preponderance of the evidence that an affidavit including that information could not
support a finding of probable cause. We review de novo whether the inclusion of the
omitted information would not support a finding of probable cause. See United States
v. Cowling, 648 F.3d 690, 695 (8th Cir. 2011).
“The Fourth Amendment requires probable cause to be shown for the issuance
of a warrant.” United States v. Montes-Medina, 570 F.3d 1052, 1059 (8th Cir. 2009).
“Only if the affidavit as supplemented by the omitted material could not have supported
the existence of probable cause will suppression be warranted.” United States v.
Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (cleaned up). “An affidavit establishes
probable cause for a warrant if it ‘sets forth sufficient facts to establish that there is a
fair probability that contraband or evidence of criminal activity will be found in the
particular place to be searched.’” United States v. Mutschelknaus, 592 F.3d 826, 828
(8th Cir. 2010) (quoting United States v. Snyder, 511 F.3d 813, 817 (8th Cir. 2008)).
Whether probable cause exists to issue a search warrant “is a ‘commonsense, practical
question’ to be judged from the ‘totality-of-the- circumstances.’” United States v.
Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213,
230 (1983)). It “does not require evidence sufficient to support a conviction, nor even
evidence demonstrating that it is more likely than not that the suspect committed a
crime.” Id. (quoting United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001)).
-11-

-- 11 of 21 --

Under Iowa law, it is illegal to “[i]ntentionally point[] any firearm toward
another, or display[] in a threatening manner any dangerous weapon toward another.”
Iowa Code § 708.1(2)(c). Latham stated that Miller pointed a gun at her and Jarrell. In
contrast, Borntreger stated that Miller did not point a gun at anyone because Miller did
not see them. Miller, therefore, argues that Officer Bovy deliberately omitted
Borntreger’s contrary testimony from the affidavit, the exclusion of her testimony
renders the affidavit misleading, and the inclusion of Borntreger’s testimony would not
have supported a finding of probable cause.
Miller further contends that “[a]ny information in the application for [the]
warrant originating from Latham should be excised because the judge was not told
about the many things that contradicted what she said.” Appellant’s Reply Br. at 14.
Miller is wrong. The proper course is to consider the affidavit as if the omissions had
been included, as the district court explained. See Miller II, 2019 WL 7212306, at *13
(“Even if I found the discrepancies in the witness statements were intentionally omitted
or omitted with reckless disregard for the truth, this would not require excising
Latham’s claims to determine whether the omissions impacted the probable cause
analysis as Miller argues. Rather, I must consider whether the affidavit was supported
by probable cause if the omitted information had been included.”); see also Hunter v.
Namanny, 219 F.3d 825, 830 (8th Cir. 2000) (“[A] reconstructed affidavit must also
include material allegedly omitted with reckless disregard for the truth.”).
Like the district court, we conclude that if the “full extent of statements from
Latham, Borntreger, [Chelsea,] and [Jarrell] had been included in the affidavit, . . . such
information would [not] render the affidavit unsupported by probable cause.” Miller
II, 2019 WL 7212306, at *13.
As the district court explained, “the issuing judge would still have had testimony
from multiple eyewitnesses that [Miller] was angry and cursing while carrying a
shotgun.” Miller I, 2019 WL 8112464, at *12. Latham, Jarrell, Chelsea—and even
-12-

-- 12 of 21 --

Borntreger—all testified that Miller was cursing in a dispute with Latham while
carrying a shotgun. Latham, the alleged victim, stated that Miller pointed a gun at her
and Jarrell. And Jarrell confirmed that Miller “‘pointed’ the shotgun.” Miller II, 2019
WL 7212306, at *4. Though Chelsea did not corrobarate their stories, she also did not
contradict them.
And even though Borntreger stated that Miller had not pointed a gun at Latham
and Jarrell, “what she saw was at least consistent with displaying a firearm in a
threatening manner,” which is also criminalized under Iowa law. Miller I, 2019 WL
8112464, at *10 (citing Iowa Code § 708.1(2)(c)). In fact, “Borntreger . . . described
[Miller] as carrying the shotgun in a manner that would allow him to shoot quickly if
necessary.” Id. at *6. As the district court emphasized, “Probable cause ‘does not
require evidence sufficient to support a conviction, nor even evidence demonstrating
that it is more likely than not that the suspect committed a crime.’” Miller II, 2019 WL
7212306, at *14 (quoting Donnelly, 475 F.3d at 954).
Notably, “[a]ll witnesses described being outside and, at some point, going
inside Latham’s apartment after Miller exited his apartment.” Id. at *13. They also all
“had similar descriptions of the gun, the people involved and the general chain of
events.” Id.
Therefore, Miller is not entitled to suppression of the shotgun under Franks.
2. Warrantless Entry
Miller argues that the district court erred by concluding that law enforcement’s
warrantless entry into his residence was justified by exigent circumstances. Without
deciding whether exigent circumstances justified the warrantless entry, we affirm the
district court because the illegality was not the but-for cause of obtaining the evidence.
-13-

-- 13 of 21 --

“Evidence obtained in violation of the Fourth Amendment is subject to the
exclusionary rule and, therefore, ‘cannot be used in a criminal proceeding against the
victim of the illegal search and seizure.’” United States v. Riesselman, 646 F.3d 1072,
1078 (8th Cir. 2011) (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)).
Evidence that was “obtained as a direct result of an illegal search or seizure” should
be excluded, as well as “evidence later discovered and found to be derivative of an
illegality or ‘fruit of the poisonous tree.’” Id. (quoting Segura v. United States, 468
U.S. 796, 804 (1984)).
But “the ‘illegality [must] at least [be] a but-for cause of obtaining the
evidence.’” Id. at 1079 (quoting United States v. Olivera-Mendez, 484 F.3d 505, 511
(8th Cir. 2007)). “[T]he initial burden of establishing the factual nexus between the
constitutional violation and the challenged evidence” is on the defendant. Id. (citation
omitted). Then, “[o]nce the defendant comes forward with specific evidence
demonstrating taint, the ultimate burden of persuasion to show the evidence is untainted
lies with the government.” Id.; see also Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir.
1987) (en banc) (“[U]nder the ‘independent source’ doctrine, the challenged evidence
will be admissible if the prosecution can show that it derived from a lawful source
independent of the illegal conduct. In such a case, there is no reason to exclude the
challenged evidence since the police misconduct is not even a ‘but for’ cause of its
discovery.” (citation omitted)).
Here, the shotgun was not obtained as a result of an illegal entry. Assuming the
officers entered illegally, they did not discover the shotgun until they obtained a search
warrant. And the warrant application did not include any information gained as a result
of the assumed illegal entry. Cf. Segura, 468 U.S. at 814 (holding that suppression was
not required when officers illegally entered a residence because the officers did not use
any information obtained from the illegal entry to secure a warrant). Moreover, Miller
did not meet his burden of “establishing the factual nexus between the constitutional
violation and the challenged evidence.” Riesselman, 646 F.3d at 1079. As the district
-14-

-- 14 of 21 --

court noted, Miller “d[id] not argue that the shotgun was fruit of the warrantless
entry.”Miller II, 2019 WL 7212306, at *15 n.18. On appeal, Miller states that “the fruit
of the Franks violation includes the shotgun and other evidence seized.” Appellant’s
Br. at 36. But Miller fails to elaborate and, thus, fails to meet his burden.
B. National Firearms Act
Miller argues that the National Firearms Act is unconstitutional. At the same
time, he acknowledges that the Supreme Court has rejected this argument, see Miller,
307 U.S. at 177–78, and thus merely seeks “to preserve the issue,” Appellant’s Br. at
37.
C. Sentencing
As to his sentencing, Miller argues that the district court erred in three ways: (1)
it found that Miller had a prior conviction for a controlled substance under U.S.S.G.
§ 4B1.2(b); (2) it found that the offense involved a firearm that is described in 26
U.S.C. § 5845(a); and (3) it applied a four-level sentencing enhancement based on
Miller using a firearm in connection with another felony offense.
“This court reviews sentencing determinations under a deferential abuse of
discretion standard, first ensuring that the district court committed no significant
procedural error.” United States v. Wood, 587 F.3d 882, 883 (8th Cir. 2009).
“‘Procedural error’ includes ‘failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.’” United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
In determining whether there was a procedural error, “we review the district
court’s factual findings for clear error and its application or interpretation of the
-15-

-- 15 of 21 --

Guidelines de novo.” United States v. Belfrey, 928 F.3d 746, 750 (8th Cir. 2019). “A
finding is ‘clearly erroneous’ when, after reviewing the entire evidence, the court is left
with the firm conviction that a mistake has been made.” United States v. Thomas, 565
F.3d 438, 441 (8th Cir. 2009) (quoting United States v. Marks, 328 F.3d 1015, 1017
(8th Cir. 2003)).
As relevant here, the United States Sentencing Guidelines instruct courts to apply
a base offense level of 22 “if . . . the offense involved a . . . firearm that is described
in 26 U.S.C. § 5845(a)[,] and . . . the defendant committed any part of the instant
offense subsequent to sustaining one felony conviction of . . . a controlled[-] substance
offense.” U.S.S.G. § 2K2.1(a)(3). And a defendant’s sentence will receive a four-level
increase if he “used or possessed any firearm or ammunition in connection with another
felony offense.” Id. § 2K2.1(b)(6)(B).
1. Prior Conviction for a Controlled Substance
Miller argues that the district court erred by finding that he committed the instant
offense after sustaining a felony conviction for a controlled-substance offense. He avers
that a controlled-substance offense does not include inchoate offenses. But Miller
admits that he is making this argument in order “to preserve it in the event the Supreme
Court favorably resolves the Circuit split.” Appellant’s Br. at 48. Indeed, “[t]his
argument is foreclosed by United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir.
1995) (en banc).” United States v. Merritt, 934 F.3d 809, 811 (8th Cir. 2019), cert.
denied, 140 S. Ct. 981 (2020). And “[o]ur panel may not overrule a decision of the en
banc court.” Id.
2. Shotgun Barrel Length
Next, Miller argues that the sentencing court erred by concluding that the offense
involved a firearm that is described in 26 U.S.C. § 5845(a). Specifically, the district
court found that the firearm was “a shotgun having a barrel or barrels of less than 18
inches in length,” as defined in § 5845(a). Miller I, 2019 WL 8112464, at *18. Though
-16-

-- 16 of 21 --

Miller concedes that the shotgun has a barrel of less than 18 inches, he argues that he
did not know that the barrel was less than 18 inches.
However, the Guidelines do not require “knowledge” for this enhancement to
apply. See U.S.S.G. § 2K2.1(a)(3). Though we have yet to consider this precise
argument,5 we have stated that “[t]he Sentencing Commission understands the
difference between actus reas and mens rea and specifically includes a scienter element
within a guideline when it intends mens rea to be considered.” United States v.
Gonzalez-Lopez, 335 F.3d 793, 798 (8th Cir. 2003). We “have refused to read scienter
elements into guidelines where the Sentencing Commission has not provided them.” Id.
Thus, we decline to read “knowledge” as an element into § 2K2.1(a)(3) of the
Guidelines where the Sentencing Commission has not included it.
We have rejected a similar argument. See United States v. Amerson-Bey, 898
F.2d 681, 683 (8th Cir. 1990) (holding that the enhancement for illegal possession of
a stolen firearm “does not require knowledge that the firearm was stolen”). And several
5In United States v. Rohwedder, a district court enhanced a defendant’s sentence
pursuant to § 2K2.1(b)(3) because the offense involved a firearm as defined in 26
U.S.C. § 5845(a). 243 F.3d 423, 425 (8th Cir. 2001). The defendant argued that the
court erroneously applied the enhancement because “he did not know that the shotgun
was shortened.” Id. We noted “that to convict a defendant for possessing a firearm as
defined in § 5845(a), the government ‘must prove that the defendant knew of the
features of the weapon that brought it within the scope of’ unlawful possession, in
particular, of a reduction in barrel and overall length.” Id. at 426 (quoting United States
v. Otto, 64 F.3d 367, 370 (8th Cir. 1995)). We assumed that the same knowledge
requirement applied to sentencing enhancements under § 2K2.1(b)(3), cf. id. at 426 n.2,
and “f[ou]nd no clear error in the district court’s conclusion that [the defendant] knew
that the shotgun had been shortened.” Id. at 426. In so holding, we did “not squarely
address[]” whether § 2K2.1(b)(3) actually required a mens rea finding, so “we are not
bound by . . . stare decisis” from concluding that knowledge is not an element of
§ 2K2.1(a)(3). Passmore v. Asture, 533 F.3d 658, 660 (8th Cir. 2008).
-17-

-- 17 of 21 --

of our sister courts have addressed the issue and rejected Miller’s argument. See, e.g.,
United States v. Fry, 51 F.3d 543, 546 (5th Cir. 1995) (“[T]he language of [§]
2K2.1(a)(3) makes no reference to the defendant’s mental state. The section is plain on
its face and should not, in light of the apparent intent of the drafters, be read to imply
a scienter requirement.”); United States v. Williams, 828 F. App’x 209, 210 (5th Cir.
2020) (unpublished per curiam) (“Although § 2K2.1(a)(3) has been amended since Fry,
nothing in the text or commentary of § 2K2.1(a)(3) imposes a mens rea requirement.”);
United States v. Bryant, 131 F.3d 136, 136 (4th Cir. 1997) (unpublished per curiam)
(agreeing with the Fifth Circuit’s holding in Fry that § 2K2.1(a)(3) does not imply a
scienter requirement); United States v. Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008)
(rejecting the defendant’s argument that the § 2K2.1(a)(5) sentencing enhancement did
not apply because the government did not prove that the defendant knew that he
possessed a firearm as described in 26 U.S.C. § 5845(a)).
Miller cites Staples v. United States, 511 U.S. 600 (1994), and Rehaif v. United
States, 139 S. Ct. 2191 (2019), for support. However, those cases are inapposite
because they explain that knowledge is a necessary element for certain convictions.
They do not discuss a sentencing enhancement. See Bryant, 131 F.3d at 136
(explaining that the defendant’s reliance on Staples for imposing a scienter element to
§ 2K2.1(a)(3) was “misplaced” because “the statute in Staples was a criminal statute,
while the provision at issue in this case is a sentencing enhancement without the same
risk of conviction of an innocent party”).
Because the gun was in fact less than 18 inches (17 7/8ths inches), the district
court did not err. And even if knowledge was needed, the district court concluded that
this was not a situation where [the shotgun] was barely under 18 inches
and something that came out of a factory in that format. It clearly had
been altered by someone. I don’t know if it was Mr. Miller, and it doesn’t
-18-

-- 18 of 21 --

matter if it was him. But he was in possession of a firearm that clearly
had been modified to reduce the barrel length.
Sent’g Tr. at 97 (emphases added).
3. Possessing a Firearm in Connection with Another Felony Offense
Last, Miller argues that the district court erred in finding that he committed
assault; therefore, it erroneously applied the four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B). “When the proposed enhancement is based upon an offense for
which there was no prior conviction[,] the government must prove at sentencing (by a
preponderance of the evidence) that the defendant committed it.” Thomas, 565 F.3d at
441 (cleaned up). “A district court’s finding regarding a defendant’s purpose in
possessing a firearm is a finding of fact,” which we review for clear error. Id. (quoting
United States v. Harper, 466 F.3d 634, 649 (8th Cir. 2006)).
Iowa Code § 708.1(2) provides four definitions of assault. Per § 708.1(2)(b),
“[a] person commits an assault when, without justification, the person does . . . [a]ny
act which is intended to place another in fear of immediate physical contact which will
be painful, injurious, insulting, or offensive, coupled with the apparent ability to
execute the act.” Under § 708.1(2)(c), “[a] person commits an assault when, without
justification, the person . . . [i]ntentionally points any firearm toward another, or
displays in a threatening manner any dangerous weapon toward another.”
After hearing several witnesses testify, the district court found by a
preponderance of the evidence that Miller committed assault under both definitions
when he “brought a shotgun outside with him in the middle of a hostile, angry,
confrontational situation” and “display[ed] it in a manner where the other individuals
were able to see that he had it.” Sent’g Tr. at 81–82.
-19-

-- 19 of 21 --

Miller argues that the district court misunderstood Iowa assault law and read the
“toward another” element out of the statute. We disagree. The district court stated,
“I’ve looked closely at Iowa Code 708.1 . . . and 708.2” and emphasized that witnesses
testified that “they were concerned” and “felt threatened.” Id. at 82. The record does
not support a conclusion that the district court misinterpreted Iowa law.
Miller cites State v. Mott, No. 00-575, 2001 WL 433395 (Iowa Ct. App. Apr.
27, 2001) (unpublished). In Mott, the defendant challenged the sufficiency of the
evidence for his conviction for assault under § 708.1. Id. at *1. The court concluded
that there was sufficient evidence to support the assault conviction when the defendant
entered an office angrily, demanding to know his girlfriend’s location. Id. at *2. The
assault victim was in the office and denied knowing the whereabouts of the girlfriend.
Id. The defendant had a knife in his hand and stabbed a calculator with it. Id. He also
stabbed a desk, though it was not the desk where the victim was sitting. Id. The
defendant’s actions scared the victim, and “[t]he fact that he did not touch [the victim]
with the weapon or hold it directly to him [wa]s not dispositive.” Id.
Mott supports our decision.6 As in Mott, Miller did not have to point the shotgun
directly at anyone. Contrary to Miller’s assertion, the district court did not find that “by
simply carrying the gun without pointing it at anyone Miller committed [assault].”
Appellant’s Br. at 44. Rather, the court found that Miller brought the shotgun into a
heated situation and clearly displayed it and the victims felt threatened. Even though
6See also Thomas, 565 F.3d at 440, 442 (concluding that the defendant
committed assault under Iowa law by a preponderance of the evidence by intentionally
displaying a dangerous weapon in a threatening manner when the defendant entered an
apartment “with a gun ‘in his right hand’” that he “held . . . ‘straight down at his side’”
but “with his hand near the trigger”); Anderson, 339 F.3d at 722, 724–725 (holding that
there was sufficient evidence that the defendant displayed a firearm in a threatening
manner in violation of Iowa law based on testimony that he was walking along the
shoulder of an interstate “waving the gun”).
-20-

-- 20 of 21 --

the witnesses’ testimonies were not consistent as to whether Miller pointed the gun at
any individuals, they were consistent as to Miller holding the gun in a position ready
to shoot. Furthermore, Mott required proof of assault beyond a reasonable doubt, as it
involved a conviction. Here, proof of assault only by a preponderance is required, as
it involves a sentencing enhancement.
III. Conclusion
For the foregoing reasons, we affirm.
______________________________
-21-

-- 21 of 21 --