United States of America v. Dimaryn Raishawn Ware, also known as Mari

United States Court of Appeals
For the Eighth Circuit
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No. 24-2020
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United States of America
Plaintiff - Appellee
v.
Dimaryn Raishawn Ware, also known as Mari
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: May 16, 2025
Filed: June 30, 2025
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Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Dimaryn Ware was indicted on several counts of firearms-related charges. He
moved to dismiss the indictment, arguing that the charged statutes violated the
Second Amendment on their face and as applied to him. The district court1 denied
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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his motion to dismiss, and Ware pled guilty but preserved his right to appeal that
denial. He now does so, along with several of the court’s sentencing decisions.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Together with Ana Royce and Alex Simon Jr., Ware conspired to obtain
firearms for himself and Simon, both of whom could not lawfully possess such
weapons, with Royce purchasing guns on two occasions. First, on November 25,
2022, Royce purchased a Taurus 9mm pistol for Simon and a Glock Model 19 9mm
pistol for Ware; then, on December 9, she purchased a Glock Model G20 10mm
pistol for Ware. Four days before the first purchase, all three participants visited a
shooting range, where video footage showed Simon firing a Glock-style pistol with
an extended magazine. On November 26, one day after the first purchase, Royce
and Simon took pictures of themselves holding the Taurus 9mm with an extended
magazine.
That same day, Ware was involved in a shooting in Des Moines, Iowa. He
used the Glock 19 from the November 25 purchase, and he was eventually charged
with attempted murder, in violation of Iowa Code § 707.11(1). Although acquitted
of that primary charge, Ware was found guilty of various other offenses, including:
three counts of assault with intent to inflict serious injury, in violation of Iowa Code
§ 708.2(1); one count of intimidation with a dangerous weapon with intent to injure
or provoke fear, in violation of Iowa Code § 708.6(1); one count of willful injury
causing bodily injury, in violation of Iowa Code § 708.4(2); and one count of being
a felon in possession of a firearm, in violation of Iowa Code § 724.26(1). Police
eventually recovered the Glock 19, and the gun was fitted with an extended
magazine.
Eventually, Ware was named in a multicount indictment along with Royce
and Simon. Count 3, charging Ware with participating in a straw-purchasing
conspiracy under 18 U.S.C. § 932(b)(1), and Count 4, charging Ware with being a

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felon in possession of a firearm under 18 U.S.C. § 922(g)(1), arose from the
November 25 purchase. Counts 8 and 9, which arose from the December 9 purchase,
included those same two charges. Ware moved to dismiss the indictment, arguing
that both statutes violated the Second Amendment on their face and as applied to
him. The district court denied the motion, and Ware subsequently pled guilty to
Counts 4 and 8, preserving his right to appeal that denial, while Counts 3 and 9 were
dismissed on the motion of the Government.
At sentencing, over Ware’s objection, the court applied the Base Offense
Level from United States Sentencing Guideline (USSG) § 2K2.1(a)(3). The district
court concluded that the offense involved a firearm capable of accepting a large
capacity magazine based on the videos and pictures of Royce and Simon possessing
and using such a firearm and based on the fact that the Glock 19 was fitted with such
a magazine when it was ultimately recovered. After calculating a Guidelines range
of 84 to 105 months, the court varied upward to 144 months’ imprisonment after
considering Ware’s role in the November 26 shooting. The district court ordered its
sentence to run concurrently to the state sentence for the November 26 shooting, but
consecutively to Ware’s state sentences for an unrelated shooting from March 2020
and for an escape from state custody, the latter of which was still pending. Ware
now appeals.
II.
Ware first argues that the district court erred when it denied his motion to
dismiss the indictment, but his arguments in support of his motion to dismiss are
foreclosed by precedent. Section 922(g)(1) is not unconstitutional on its face or as
applied to him. See United States v. Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024)
(reviewing argument de novo, holding that § 922(g)(1) is consistent with our
nation’s history and tradition of firearm regulation, and concluding that “there is no
need for felony-by-felony litigation regarding the constitutionality of [the felon-in-
possession statute]”), cert. denied, 2025 WL 1426707 (May 19, 2025). Because his
straw-purchasing-conspiracy conviction rests on his felon-in-possession conviction,

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his Second Amendment challenge to § 932(b)(1) is similarly foreclosed. See United
States v. Sharkey, 131 F.4th 621, 622 (8th Cir. 2025) (rejecting an identical
argument).
III.
Ware next asserts that the district court erred when it considered conduct
underlying the state attempted murder charge for which Ware was acquitted. This
claim is also foreclosed by precedent. District courts can consider “conduct
underlying the acquitted charge” without offending the Fifth or Sixth Amendments,
see id. at 623; United States v. Bullock, 35 F.4th 666, 671 (8th Cir. 2022), and,
assuming his conduct even qualified,2 the district court was not required to consider
then-pending Guidelines amendments which would prohibit using acquitted conduct
when calculating a Guidelines range, see Sharkey, 131 F.4th at 623. To the extent
he argues that his sentence is substantively unreasonable because the district court
considered that purportedly acquitted conduct, we have rejected that argument, too.
See id. at 624.
IV.
The district court applied USSG § 2K2.1(a)(3) to calculate Ware’s Base
Offense Level because the court concluded that Ware’s offense involved a
2 Under the then-pending amendment to USSG § 1B1.3(c), “conduct for which
the defendant was criminally charged and acquitted in federal court” would not
qualify as “relevant conduct” for the purposes of calculating a defendant’s advisory
Guidelines range unless that conduct also establishes the offense of conviction. But
as the Government notes, the amendment would not apply to Ware even if it were in
force at the time of his sentencing. First, although Ware was not found guilty of
attempted murder, he was found guilty on the six other counts; second, the Guideline
excludes conduct underlying only federal acquittals from the definition of relevant
conduct, not state acquittals, see id.; and third, the Guideline does not prohibit a court
from considering acquitted conduct when analyzing the factors from § 3553(a), as
the district court did here.

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semiautomatic firearm “capable of accepting a large capacity magazine.”3 On
appeal, Ware argues that the district court clearly erred in applying that
enhancement. See United States v. Byas, 581 F.3d 723, 725 (8th Cir. 2009)
(reviewing district court’s factual findings for clear error).
Under the Guidelines, Ware’s “offense” includes the offense itself and “all
relevant conduct under § 1B1.3.” USSG § 1B1.1, comment (n.1(I)). “Relevant
conduct,” in turn, includes the defendant’s “acts and omissions . . . that occurred
during the commission of the offense of conviction [or] in preparation for that
offense,” and “in the case of a jointly undertaken criminal activity,” acts of others
“within the scope,” “in furtherance of,” and “reasonably foreseeable in connection
with” that activity. Id. § 1B1.3(a)(1). The Guidelines likewise define a
“semiautomatic firearm that is capable of accepting a large capacity magazine” as
one with “the ability to fire many rounds without reloading because at the time of
the offense (A) the firearm had attached to it a magazine or similar device that could
accept more than 15 rounds of ammunition; or (B) a magazine or similar device that
could accept more than 15 rounds of ammunition was in close proximity to the
firearm.” Id. § 2K2.1 comment. (n.2).
Applying those definitions here, we see no clear error in the district court’s
conclusions. During the course of the straw-purchasing conspiracy, Ware and his
co-conspirators visited a shooting range, where one co-conspirator fired a pistol with
an extended magazine. Another co-conspirator told investigators that Ware “always
had his gun on him” and described the gun as “black with a long magazine sticking
out of it.” When the firearm that Ware received through the conspiracy was
recovered—although not in Ware’s possession—it was fitted with a large capacity
magazine, which demonstrates that it was physically capable of accepting such a
magazine. The district court did not clearly err in concluding that all of Ware’s
actions, as well as those of his co-conspirators, were “relevant conduct” under USSG
3 On appeal, Ware does not challenge § 2K2.1(a)(3)’s other requirement:
“commit[ing] any part of the instant offense subsequent to sustaining one felony
conviction of either a crime of violence or a controlled substance offense.”

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§ 1B1.3(a)(1), see United States v. Adams, 451 F.3d 471, 473 (8th Cir. 2006), nor
did it clearly err in concluding that at least one firearm in the straw-purchasing
conspiracy was “capable of accepting a large-capacity magazine,” regardless of
whether there was any direct evidence that Ware physically possessed such a
firearm, see Byas, 581 F.3d at 725-26 (permitting § 2K2.1(a) enhancement based on
“circumstantial evidence” that a defendant either “actually or constructively
possessed” the firearm); see also United States v. Carruth, 439 F. App’x 560, 562
(8th Cir. 2011) (per curiam) (applying enhancement based on purchase of weapon
and magazine, even though weapon was found later and did not have large capacity
magazine). Accordingly, the district court did not clearly err in applying USSG
§ 2K2.1(a)(3).
V.
Finally, the district court ordered Ware’s sentence to run consecutively to two
state prison sentences: one for an unrelated shooting in March 2020 and one for
escaping while on parole. The district court further refused to reduce Ware’s federal
sentence by the time Ware served under those state sentences pursuant to USSG
§ 5G1.3(b), which mandates a reduction “for any period of imprisonment already
served” on a “term of imprisonment [which] resulted from another offense that is
relevant conduct to the instant offense.” Ware challenges both of these decisions on
appeal. Both challenges fail.
Courts have discretion to impose consecutive terms of imprisonment for “a
defendant who is already subject to an undischarged term of imprisonment.” 18
U.S.C. § 3584(a); see United States v. Benson, 888 F.3d 1017, 1019 (8th Cir. 2018);
United States v. McDonald, 521 F.3d 975, 980 (8th Cir. 2008). That discretion
extends to not only federal sentences, but undischarged state sentences as well. See
Setser v. United States, 566 U.S. 231, 244 (2012). Here, Ware had three such
sentences: (1) a sentence for a shooting that formed part of Ware’s federal offense
conduct, (2) the sentence for the unrelated March 2020 shooting, and (3) the escape
sentence. The district court, over the Government’s objection, chose to run the

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federal sentence concurrent with the first state sentence, in line with USSG
§ 5G1.3(b)(2), as it formed part of the relevant conduct for the instant offense. But
the other two convictions were entirely unrelated. There is no abuse of discretion in
imposing a consecutive sentence in those circumstances. See., e.g., United States v.
Jones, 89 F.4th 681, 686 (8th Cir. 2023) (affirming consecutive sentence to
anticipated escape sentence).
Second, “[USSG §] 5G1.3 provides guidance that varies depending on
whether a defendant’s time served in state custody is, or will be, for conduct that is
‘relevant’ to the instant federal offense.” United States v. Nelson, 982 F.3d 1141,
1144 (8th Cir. 2020). “‘For time already spent in custody for solely relevant
conduct’ to the instant federal offense, the district court must adjust a sentence
downward to account for time served, unless the Bureau of Prisons would otherwise
credit that time to the defendant.” Id. (quoting United States v. Winnick, 954 F.3d
1103, 1105 (8th Cir. 2020)). “In ‘complex situations,’ where a defendant is ‘subject
to multiple undischarged terms of imprisonment that seemingly call for the
application of different rules,’” the district court has “discretion . . . to fashion a
sentence of appropriate length and structure it to run in any appropriate manner to
achieve a reasonable punishment.” Id. (citation omitted).
As already noted, the March 2020 shooting had nothing to do with the
straw-purchasing conspiracy, and, at best, his escape charge is “a ‘complex’ case in
which the court had discretion” to structure Ware’s sentence.4 See Nelson, 982 F.3d
at 1145 (citation omitted). Though Ware argues that Winnick requires the district
court to run his federal sentence concurrently with all of his undischarged state
sentences, our decision in that case does not mandate such a reduction. See 954 F.3d
at 1105 (noting that “no adjustment is necessary” for time spent in custody that did
not result from relevant conduct). Under these circumstances, the district court did
4 Ware’s participation in the straw-purchasing conspiracy occurred while he
was wanted for the escape from state custody underlying his escape charge.

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not abuse its discretion when it refused to reduce Ware’s sentence based on his
undischarged state sentences for unrelated conduct.
VI.
Accordingly, the judgment of the district court is affirmed.
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