United States of America v. David Paul Wood

United States Court of Appeals
For the Eighth Circuit
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No. 21-1839
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
David Paul Wood
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: February 14, 2022
Filed: August 2, 2022
[Unpublished]
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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
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PER CURIAM.
David Wood was convicted by a jury of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1
1The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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imposed two sentencing enhancements: (1) a two-level increase to his base offense
level because the offense involved a semi-automatic firearm capable of accepting a
large capacity magazine, and (2) another two-level increase because the offense
involved a stolen firearm. On appeal, Wood does not challenge his conviction but
contends that the court erred in imposing the sentencing enhancements. We affirm.
I. Background
On September 17, 2019, law enforcement officers identified David Wood as
a suspect in their investigation of an armed robbery that had occurred that day in
Marston, Missouri. The following day, officers tracked down Wood’s vehicle and
pulled him over. A search of the car yielded a number of items, including two empty
gun holsters, a pair of black gloves, a black ball cap, a black neoprene mask, a plastic
skull mask, and Wood’s cell phone.
Police took Wood to police headquarters where he agreed to sit for an
interview. With Wood’s consent, investigators searched his cell phone. The search
revealed several photographs of two firearms, an FN 9mm semiautomatic pistol and
a Springfield .40 caliber semiautomatic pistol. The first photograph depicted both
firearms as well as an extended high-capacity magazine lying next to the 9mm pistol.
A second photograph featured the 9mm pistol by itself with a distinctive carpet
visible in the background. A third photograph featured the .40 caliber pistol by itself
with the same distinctive carpet in the background. Three other photographs showed
a man wearing a plastic skull mask, which appeared to be the same mask that police
had recovered from Wood’s vehicle. In two of these photographs, the masked man
can be seen holding the .40 caliber pistol.
When questioned about the photographs found on his cell phone, Wood
admitted that he was the person wearing the skull mask. Wood claimed, however, that
the object he was holding in the pictures was not an actual firearm, but an airsoft gun.
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Investigators subsequently obtained a search warrant for Wood’s Facebook
account. Several messages were discovered where Wood specifically discussed
firearms. In one exchange from August 15, 2019, Wood sent an individual a
photograph of the .40 caliber pistol with the message “check this out.” R. Doc. 91, at
132. That same day, Wood told the same individual that he “need[ed] a holster.” Id.
at 135. Two weeks later, Wood sent a photograph of the .40 caliber pistol to another
individual, specifically referring to it as a “.40.” Id. at 138.
Federal law prohibited Wood from possessing firearms because he had five
previous felony convictions. On November 5, 2019, he was indicted on one count of
being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). Wood
pleaded not guilty and elected to proceed to trial.
Among the government’s witnesses was George Dawson, a friend of Wood.
Dawson testified that Wood stayed at his apartment in New Madrid, Missouri “from
time to time,” including around the time of the robbery. R. Doc. 91, at 192. Dawson
also testified that the 9mm pistol depicted in Wood’s cell phone photos belonged to
Dawson and that he had purchased it himself from a licensed firearms seller.2 He
confirmed that the photograph of the 9mm pistol was taken inside his apartment
because he recognized the distinctive carpet in the background. He also told the jury
that he did not take the photograph and was not present when it was taken.
In addition to his testimony about the 9mm pistol, Dawson testified that he had
seen the .40 caliber pistol on one prior occasion: Wood came to his apartment with
a woman named Amber Rogers who had stolen the firearm from her boyfriend and
2Dawson was unable to produce the 9mm pistol at trial, however, as he had sold
it to Kenny Steele of Poplar Bluff, Missouri, subsequent to the pictures being taken
and prior to trial. Police met with Steele on October 30, 2019, at which time they
identified the 9mm pistol as the firearm previously belonging to Dawson. Subsequent
to this meeting, the firearm was reported stolen and has not been recovered.
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was attempting to sell it. Dawson testified that, while he declined to purchase it, the
.40 caliber pistol was in fact a real firearm. Dawson is an ex-Marine and is familiar
with guns. He also confirmed that this was the same gun in the photograph Wood had
sent in the August 15, 2019 Facebook message and in the cell phone photo showing
the .40 caliber pistol by itself. Dawson further confirmed that he could tell that the
latter photograph was taken inside his apartment based on the distinctive carpet in the
background.
The jury also heard testimony from Edward O’Guin, another friend of Wood.
O’Guin told the jury that Wood occasionally stayed at his house in New Madrid
County. O’Guin also testified that Wood had an old Ford truck that Wood was
keeping on O’Guin’s property around the time of the robbery. The truck had no
motor; Wood used it only for storage. Shortly after the robbery, O’Guin allowed law
enforcement to search the truck, and they recovered a box of .40 caliber ammunition.
While on the stand, O’Guin was shown the three photographs depicting Wood
wearing the mask. Although he was not present when they were taken, O’Guin
confirmed that these photographs were taken in his living room.
Additionally, Wood’s cell phone metadata corroborated the testimony of
Dawson and O’Guin that the six photographs were taken at their respective
residences. The metadata also revealed the dates and times the photographs were
created. The first three photographs, which depicted both firearms inside Dawson’s
apartment, were taken on September 2, 2019, at around 10:00 p.m. The last three
photographs, which depicted Wood wearing a skull mask, were taken at O’Guin’s
house on September 16, 2019, at approximately 2:16 a.m., about 24 hours before the
robbery took place.
Testifying as a witness for the government, Special Agent (SA) John Taylor of
the Bureau of Alcohol, Tobacco, Firearms, and Explosives examined the photographs
of the .40 caliber pistol and concluded that the photo depicted a real firearm. SA
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Taylor also conducted a trace on the 9mm pistol and verified that Dawson purchased
it from a federally licensed firearms dealer in February 2019.
The court held a jury instructions conference. No objections were raised by
either party to any of the instructions. The second element in the verdict-directing
instruction provided that the jury had to find that Wood “knowingly possessed a
firearm, that is an FN, 9mm caliber pistol, or a Springfield, .40 caliber pistol” to find
him guilty. R. Doc. 56, at 7. The jury returned a guilty verdict but did not indicate
whether it had found that Wood had possessed the 9mm pistol, the .40 caliber pistol,
or both. The court accepted the verdict and ordered the United States Probation Office
to prepare a presentence investigation report (PSR) in advance of the sentencing
hearing.
The PSR included a summary of the evidence presented at trial, an outline of
Wood’s criminal history, and calculations of the advisory Sentencing Guidelines
range. It determined that Wood’s base offense level was 26. This calculation was
based on Wood’s two prior drug-trafficking convictions and that the instant offense
involved a semi-automatic firearm capable of accepting a large capacity magazine
(the 9mm pistol), pursuant to U.S.S.G. § 2K2.1(a)(1). Two levels were then added
pursuant to U.S.S.G. § 2K2.1(b)(4)(A) because the .40 caliber pistol was stolen.
Wood’s total offense level therefore became 28. The PSR further reflected that Wood
had five felony convictions (including two federal convictions) and eight
misdemeanor convictions, resulting in a total of 18 criminal history points, which
correlated with a criminal history category of VI. A total offense level of 28 and a
criminal history category of VI would normally result in a Guidelines range of
140–175 months’ imprisonment, but, as the statutory maximum term of imprisonment
was 10 years, the Guidelines term became 120 months’ imprisonment.
Wood filed an objection to the PSR maintaining his innocence and objecting
to all the offense conduct outlined in the PSR. Additionally, he specifically
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challenged the application of two sentencing enhancements: (1) the two-level
increase to his base offense level under U.S.S.G. § 2K2.1(a)(1) because the offense
involved a semi-automatic pistol capable of accepting a large capacity magazine; and
(2) the two-level stolen-firearm enhancement under U.S.S.G. § 2K2.1(b)(4)(A). Wood
argued that, because the verdict-directing instruction allowed the jury to convict him
of possessing either the 9mm pistol or the .40 caliber pistol, it was possible that the
jury could have acquitted him of possessing one of those firearms. According to
Wood, imposition of both enhancements required finding that he possessed both
firearms. He averred that the possibility that the jury may not have found him guilty
beyond a reasonable doubt of possessing one of the firearms precluded the
application of both challenged enhancements. Wood acknowledged, however, that
even if both of his objections were sustained, the advisory Guidelines range would
be 100–120 months.
At the sentencing hearing on April 1, 2021, the court overruled Wood’s broad
objection to the factual statements related to his offense conduct, finding the verdict
well-supported by the evidence. Addressing Wood’s challenge to the two-level
increase for possessing a firearm capable of accepting a large capacity magazine, the
government directed the court’s attention to the photograph in government exhibit 14,
which depicted a large capacity magazine lying next to the 9mm pistol. The
government then announced that it had additional documentation to establish that this
particular pistol was indeed capable of accepting 24-round magazines. Before the
government introduced its further documentation, however, Wood informed the court
that he was not contesting the 9mm pistol’s capability of accepting a large capacity
magazine. Wood clarified that his objection challenged whether there was sufficient
evidence that he possessed the 9mm pistol at all, arguing that it was possible that the
jury could have found him guilty only of possessing the .40 caliber pistol (which was
not capable of accepting a large capacity magazine) while acquitting him of
possessing the 9mm pistol.
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As to the stolen-firearm enhancement, the government drew the court’s
attention to Dawson’s trial testimony wherein he stated that Rogers had come to his
apartment along with Wood attempting to sell Dawson the .40 caliber pistol that she
had stolen from her boyfriend. The court ultimately overruled Wood’s objections
based on this testimony. The court thus found by a preponderance of the evidence that
he had possessed both firearms. The court then formally adopted all of the factual
statements and Guidelines calculations set forth in the PSR.
After hearing sentencing recommendations from the parties and balancing the
statutory sentencing factors, the court ultimately imposed a sentence of 120 months’
imprisonment running concurrently with any other sentences pending against Wood,
to be followed by a 3-year term of supervised release.
II. Discussion
We review a district court’s interpretation and application of the Sentencing
Guidelines de novo and its related factual findings for clear error. United States v.
Mathews, 784 F.3d 1232, 1236 (8th Cir. 2015); see also United States v. Anderson,
926 F.3d 954, 957 (8th Cir. 2019). Facts that provide the basis for a sentencing
enhancement must be proven by a preponderance of the evidence. United States v.
Sacus, 784 F.3d 1214, 1219 (8th Cir. 2015). Reversal based on factual findings is
appropriate only when the court of appeals has a “definite and firm conviction that
a mistake has been made.” United States v. Two Elk, 536 F.3d 890, 909 (8th Cir.
2008) (internal quotation omitted). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.” United
States v. Waller, 689 F.3d 947, 959 (8th Cir. 2012) (per curiam) (internal quotation
omitted). Factual findings that “are plausible in light of the record viewed in its
entirety . . . must be affirmed, regardless of how [the court of appeals] might have
weighed the evidence in the first instance.” Id. (internal quotation omitted). Nor can
a factual finding be clearly erroneous when “supported by substantial evidence.” Id.
(internal quotation omitted).
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The court’s instructions to the jury stated that, to render a guilty verdict, the
jury had to find that Wood “knowingly possessed a firearm, that is an FN, 9mm
caliber pistol, or a Springfield, .40 caliber pistol.” R. Doc. 56, at 7. The jury’s guilty
verdict did not specify whether it found that he possessed the 9mm pistol, the .40
caliber pistol, or both. On this basis, Wood argues that it is possible the jury could
have found that he possessed one of the pistols but not the other; because of this
possibility, he argues, the two challenged sentencing enhancements were improperly
applied.
Wood’s argument raises two related questions: first, whether it was appropriate
for the sentencing court to consider Wood’s possible possession of both guns without
an affirmative indication from the jury that it had found him guilty of possessing both
guns; and second, whether the court properly found that the two sentencing
enhancements applied.3
Sentencing courts may consider offense conduct underlying uncharged,
dismissed, or acquitted conduct, “so long as that conduct has been proved by a
preponderance of evidence.” United States v. Ruelas-Carbajal, 933 F.3d 928, 930
3Wood does not challenge his sentence under Alleyne v. United States, 570 U.S.
99 (2013), and its progeny. In Alleyne, the United States Supreme Court held that,
under the Fifth and Sixth Amendments, “any fact that increases the mandatory
minimum is an ‘element’[of the crime] that must be submitted to the jury.” Id. at 103.
Nonetheless, it is worth noting that the sentencing enhancement for the firearm’s
capability “of accepting a large capacity magazine . . . did not increase the statutory
minimum . . . punishment, and it was thus not an element of the violation under 18
U.S.C. § 922(g)(1).” United States v. Reid, 827 F.3d 797, 801 (8th Cir. 2016) (citing
Alleyne, 570 U.S. 99 (2013)). The same is true of the stolen-firearm enhancement.
Hence, the district court’s imposition of these enhancements at sentencing did not run
afoul of Alleyne.
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(8th Cir. 2019) (quoting United States v. Watts, 519 U.S. 148, 157 (1997) (per
curiam)); see also United States v. Griggs, 71 F.3d 276, 281 (8th Cir. 1995) (stating
that sentencing court must consider all relevant conduct “whether uncharged,
charged, or charged and dismissed”). The sentencing court may make findings
regarding disputed facts based on the evidence presented at a jury trial. United States
v. Maxwell, 778 F.3d 719, 737 (8th Cir. 2015) (“Here, . . . the district court
permissibly ‘made its findings with respect to the disputed [facts] based on the
evidence at trial, not on the PSR.’” (second alteration in original) (quoting United
States v. Theimer, 557 F.3d 576, 578 (8th Cir. 2009))). “Due to the differing burdens
of proof at trial and sentencing, the sentencing judge may consider facts underlying
an acquitted count that it finds to be sufficiently reliable.” Id. “Because a jury’s
acquittal establishes only that the government failed to prove an essential element of
an offense beyond a reasonable doubt, it is well settled that a sentencing court may
consider the conduct underlying an acquitted charge so long as that conduct has been
proved by a preponderance of the evidence.” United States v. Lasley, 832 F.3d 910,
914 (8th Cir. 2016) (internal quotations omitted). “[W]e have ‘repeatedly held that
due process never requires applying more than a preponderance of the evidence
standard for finding sentencing facts . . . .’” United States v. Martin, 777 F.3d 984,
997–98 (8th Cir. 2015) (quoting United States v. Mustafa, 695 F.3d 860, 862 (8th Cir.
2012)).
So, even if the jury had only found Wood guilty beyond a reasonable doubt of
possession of one of the guns but acquitted him of possession of the other, the district
court would still have been able to consider Wood’s possession of both guns provided
that such possession of the second had been proven by a preponderance of the
evidence.
Hence, if a preponderance of evidence demonstrates Wood’s possession of both
firearms, then the district court could not have been clearly erroneous to consider his
possession of both in sentencing.
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A. U.S.S.G. § 2K2.1(b)(4)
U.S.S.G. § 2K2.1(b)(4) provides for a two-level increase to the base offense
level “[i]f any firearm . . . was stolen.” This enhancement “applies regardless of
whether the defendant knew or had reason to believe that the firearm was stolen.”
U.S.S.G. § 2K2.1, cmt. n.8(B). The Guidelines do not define the term “stolen,” but
we have interpreted the term to include “all felonious or wrongful takings with the
intent to deprive the owner of the rights and benefits of ownership, regardless of
whether or not the theft constitutes common-law larceny.” United States v. Bates, 584
F.3d 1105, 1109 (8th Cir. 2009).
Wood challenges the application of this sentencing enhancement arguing that
the government failed to prove that the firearm in question, the .40 caliber pistol, was
stolen. This fact need only be proven by a preponderance of the evidence for the
enhancement to apply, and there is enough evidence to satisfy this standard.
Dawson’s testimony at trial established that the .40 caliber pistol was stolen. The
court was not clearly erroneous in determining that the .40 caliber pistol had been
stolen. We therefore decline to disturb its imposition of an enhancement under
§ 2K2.1(b)(4).
B. U.S.S.G. § 2K2.1(a)(1)
U.S.S.G. § 2K2.1(a)(1) provides for a base offense level of 26 if “(A) the
offense involved a (i) semiautomatic firearm that is capable of accepting a large
capacity magazine; . . . and (B) the defendant committed any part of the instant
offense subsequent to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.” For purposes of this guideline, “[a] large
capacity magazine is one that can accept more than fifteen rounds of ammunition.”
Reid, 827 F.3d at 801 (citing U.S.S.G. § 2K2.1, cmt. n.2).
As Wood acknowledges in his brief, the government presented photographic
evidence that the 9mm pistol was capable of accepting a large capacity magazine.
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Additionally, Wood does not contest that the pistol was capable of accepting such
magazines. Rather, he contests the correctness of the court’s finding that he possessed
the 9mm pistol at all.
The photographs on Wood’s cell phone that depict the 9mm pistol at Dawson’s
house where Wood often stayed make it more likely than not that he possessed the
firearm. Therefore, the district court was not clearly erroneous in imposing a large-
capacity magazine enhancement pursuant to U.S.S.G. § 2K2.1(a)(1).
III. Conclusion
Accordingly, we affirm the district court.
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