United States of America v. Caleb Nelson

United States Court of Appeals
For the Eighth Circuit
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No. 14-1937
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Caleb Nelson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: November 11, 2014
Filed: November 19, 2014
[Unpublished]
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Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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PER CURIAM.
Caleb Nelson appeals, challenging the application of a dangerous-weapon
enhancement under the sentencing guidelines. We affirm.
From 2012 to 2013, Nelson and his brother took scientific calculators from
Wal-Mart stores, left without paying, and sold them online. When law-enforcement

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officers stopped the brothers outside a Wal-Mart in Iowa, the brothers’ car contained
229 stolen calculators, worth about $27,000, and two loaded handguns in the
passenger compartment. One gun had a round chambered. Nelson pleaded guilty to
conspiring to transport stolen goods. See 18 U.S.C. §§ 371, 2314. Finding that
Nelson possessed the handguns in connection with the thefts, the district court1
increased Nelson’s offense level by two. See USSG § 2B1.1(b)(15)(B). With this
enhancement, Nelson’s advisory sentencing guidelines range was 24 to 30 months in
prison. The court sentenced Nelson to 30 months’ imprisonment.
Nelson appeals his sentence. He argues only that the evidence was insufficient
to show, as required for the enhancement, that he possessed the handguns “in
connection with” the thefts. Id. Whether he possessed the firearms in connection
with his offense is a factual question that we review for clear error. See United States
v. Perez-Guerrero, 334 F.3d 778, 783 (8th Cir. 2003).
The court found that Nelson possessed the firearms in connection with his
offense because they protected him, his brother, and their loot from potential robbery.
Where two thieves had two loaded handguns, one with a round chambered, and
approximately $27,000 in stolen merchandise in their car, we cannot say that this
finding was clearly erroneous. We find support for this conclusion in United States
v. McClain, 252 F.3d 1279 (11th Cir. 2001), in which a defendant drove recruits to
various businesses to cash counterfeit checks. Id. at 1281. Just before the
defendant’s arrest, his vehicle contained counterfeit checks, fake identification cards,
about $5,000 in cash, and a firearm. Id. at 1282. Based on the presence of the
firearm, the defendant’s offense level was enhanced under a guidelines provision
substantially identical to the one at issue here. Id. at 1283 & n.10. The Eleventh
Circuit affirmed the application of this enhancement, explaining that it was “certainly
The Honorable Linda R. Reade, Chief Judge, United States District Court for1
the Northern District of Iowa.
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reasonable to infer that [the defendant] carried the firearm to prevent a ‘rip-off.’” Id.
at 1288. Because both cases involved armed thieves with significant spoils at risk,
the same may be said of Nelson. The McClain defendant risked theft directly from
his recruits, but Nelson had two firearms, not one, and more than five times as much
value in merchandise. We note further that, beyond protection from robbery, the guns
also might have protected Nelson from possible confrontations with Wal-Mart
security or customers. See United States v. Lamm, 392 F.3d 130, 134 (5th Cir. 2004)
(noting that shoplifting poses a risk of physical confrontation); United States v.
Spaulding, 339 F.3d 20, 22 (1st Cir. 2003) (same).
The district court did not clearly err in finding that Nelson possessed the
firearms in connection with his offense. Accordingly, we affirm the application of
the dangerous-weapon enhancement.
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