United States of America v. Justin Lyle Cutbank

United States Court of Appeals
For the Eighth Circuit
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No. 24-1225
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Justin Lyle Cutbank
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 10, 2025
Filed: October 7, 2025
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Before LOKEN, BENTON, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Justin Cutbank, a felon with an extensive criminal history, of
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). He was sentenced under the Armed Career Criminal Act to 292 months
imprisonment, within the advisory guidelines range as determined by the district

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court.1 He appeals his conviction and sentence, arguing the district court committed
multiple evidentiary and procedural errors that deprived him of a fair trial and
improperly applied a USSG § 2K2.1(b)(6)(B) sentencing enhancement that increased
the advisory guidelines range. We affirm.
I. Background
During the night of November 19-20, 2020, after drinking and using
methamphetamine, Cutbank awakened his girlfriend, D.F., pointed a gun at her face,
and directed her into a closet, making paranoid accusations about “listening devices”
in the home and people outside waiting to harm him. He kept D.F. in the closet at
gunpoint for what D.F. testified felt like hours, threatening her life and striking her
across the face with the gun. At some point, Cutbank ordered D.F. to rouse others
sleeping in the house, including her two teenage sons and her housemate, C.F.
Eventually, Cutbank fled with D.F.’s cell phone and the gun. D.F. called the police.
The police also received a call from a house a half mile from D.F.’s residence
reporting that a man was in the garage and refused to leave. When police arrived,
Cutbank barricaded himself in the garage and, over the course of several hours, made
erratic statements and claimed to have a weapon. Cutbank resisted when officers
attempted to detain him, biting an officer in the face and neck and grabbing his gun.
Officers searching the path Cutbank likely would have taken between D.F.’s home
and the garage found D.F.’s cell phone, a butcher-style knife, and a Marlin .22 caliber
rifle with a sawed-off barrel and stock. DNA on the gun matched Cutbank. At trial,
D.F. and C.F. identified the weapon as one they saw Cutbank with before that night.
The jury convicted Cutbank of the charged felon in possession offense and of being
previously convicted of at least three violent felonies, triggering the enhanced penalty
1The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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provisions of § 924(e). He now appeals his conviction and sentence, arguing that the
district court abused its discretion in multiple rulings it made before and during trial
and misapplied USSG § 2K2.1(b)(6)(B) to enhance his sentence.
II. The Evidentiary and Procedural Issues.
Cutbank raises a series of evidentiary and procedural issues, providing no cases
and almost no analysis to support his arguments. None of the contentions has merit.
A. Before trial, Cutbank filed a motion to prevent D.F. and C.F. from testifying
that they had previously observed him with the sawed-off Marlin .22 caliber rifle,
arguing this would be propensity evidence violating Rule 404(b) of the Federal Rules
of Evidence. The district court agreed with the government that this would be
intrinsic evidence relevant to proving the possession charge and demonstrating
continuous possession of the firearm before the incident. We agree. “Prior
possession of a firearm is directly relevant to proving later possession of that same
weapon because it helps establish ownership or control of the weapon.” United
States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014), cert. denied, 575 U.S. 978 (2015).
At trial, D.F. testified she had seen Cutbank with the sawed-off rifle a “handful of
times” before the incident at issue.
B. Before trial, Cutbank also requested that the jury be instructed, to avoid
hearsay and Confrontation Clause issues, that it could not consider D.F.’s statements
to police as substantive evidence of Cutbank’s actions until D.F. herself testified to
the events. The government argued the statements would establish the context for
police officer actions and their knowledge at the time, that the officers’ testimony
would not overstep hearsay rules, and that a later instruction from the bench, if
needed, would be customary and sufficient. “We review a district court’s decision
not to give a limiting instruction for abuse of discretion.” United States v. Bennett,
765 F.3d 887, 899 (8th Cir. 2014), cert. denied, 574 U.S. 1180 (2015). The court
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“need not instruct the jury regarding each item of evidence at the time the evidence
is admitted if the court provides an appropriate instruction at the close of trial.” Id.
Here, the record demonstrates the court did not admit hearsay during the trial. In
addition, D.F. testified. The Confrontation Clause is satisfied “when the hearsay
declarants . . . actually appear in court and testify in person.” United States v.
Charboneau, 613 F.3d 860, 861 (8th Cir. 2010) (quotation omitted). There was no
abuse of discretion.
C. At trial, D.F. testified she had seen Cutbank with the sawed-off rifle a
“handful of times” before the incident. The district court denied Cutbank’s renewed
objection to this testimony. The court also overruled a defense objection when C.F.,
testifying as a government witness, testified that she had seen the gun used during the
incident “once or twice” before. On appeal, Cutbank cites no authority refuting the
court’s pretrial ruling that this was intrinsic evidence relevant to proving the
possession charge and demonstrating continuous possession of the firearm before the
incident. See, e.g., Battle, 774 F.3d 504, 511.
D. During cross examination regarding prior inconsistent statements regarding
the gun, including that she did not remember seeing the gun on the night in question,
D.F. testified that some statements were because she was “not familiar with guns” and
“did not like guns . . . [a]s [her] sister was killed by a gun.” The court denied
Cutbank’s motion to strike testimony that D.F.’s sister was killed by a gun. This
testimony responded to cross-examination regarding inconsistent prior statements.
Cutbank points to no unfair prejudice or confusion resulting from this testimony, and
none is apparent. See Fed. R. Evidence 403. C.F., testifying as a government
witness, also mentioned D.F.’s sister being killed by a gun without a defense
objection. There was no abuse of the district court’s broad evidentiary discretion.
See, e.g., Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
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E. The defense sought to undermine C.F.’s testimony that she had seen the gun
used during the incident “once or twice” before by cross-examining her about prior
statements she made to a police investigator. The district court allowed questions
regarding what C.F. said to police but sustained the government’s objections to
defense counsel reading portions of the resulting police report into the record without
proper foundation because the report was not authored by C.F. Although Cutbank
on appeal did not refer to this ruling, the government’s brief argued that Cutbank’s
“next claim is that the district court ‘thwarted’ his efforts to cross-examine C.F. on
her testimony regarding the gun possession.” We do not appreciate appellees who
unnecessarily expand the issues on appeal. In any event, whether preserved or not,
the “claim” is without merit. “Although extrinsic evidence may be used for
impeachment by prior inconsistent statement, such extrinsic evidence must still be
authenticated.” United States v. Cumbie, 28 F.4th 907, 914 (8th Cir. 2022) (quotation
omitted). The court did not abuse its discretion by requiring proper authentication.
Finally, as Cutbank acknowledges, “this court will not reverse an erroneous
evidentiary ruling if the error was harmless. . . . In other words, we will reverse only
if the jury may have been substantially swayed by the improperly admitted evidence.”
United States v. DeMarce, 564 F.3d 989, 997 (8th Cir. 2009) (quotation omitted).
Cutbank cannot clear this hurdle. The government’s evidence, both testimonial and
physical, was substantial. Thus, the district court’s evidentiary rulings “did not
influence or had only a slight influence on the verdict.” Id. at 998. “We will not
overturn a conviction based on the cumulative effect of trial errors unless there is
substantial prejudice to the defendant.” United States v. Keys, 918 F.3d 982, 985 (8th
Cir. 2019) (quotation omitted).
III. The Sentencing Issue.
The jury found Cutbank guilty of being a felon in possession of a firearm. It
also found he had three or more prior violent felony convictions, triggering the
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Armed Career Criminal Act’s enhanced penalties. The Presentence Investigation
Report (PSR) recommended a base offense level of 26 because the offense involved
a sawed-off firearm described in 26 U.S.C. § 5845(a) and Cutbank had at least two
prior convictions for crimes of violence, plus a three-level increase because the
firearm had an altered/obliterated serial number, a two-level increase because he
recklessly created a risk of death or serious bodily injury while fleeing from police,
and a four-level increase because he possessed the firearm in connection with another
felony offense, for a total offense level of 35.2 The PSR calculated a Criminal History
Category of VI, resulting in an advisory guidelines sentencing range of 292 to 365
months imprisonment. On appeal, Cutbank argues the district court incorrectly
applied the four-level sentencing enhancement for possession of a firearm in
connection with another felony offense under § 2K2.1(b)(6)(B).
This enhancement applies if a defendant used or possessed any firearm or
ammunition in connection with another federal, state, or local felony offense
“regardless of whether a criminal charge was brought, or a conviction obtained.”
§ 2K2.1, comment. (n.14(C)). At sentencing, the district court adopted, without
objection, the PSR’s factual statements regarding Cutbank’s prior felony convictions.
Thus, the court did not err, much less clearly err, in finding that the facts in the PSR
establish that the gun was used in connection with another felony. See United States
v. Dunn, 723 F.3d 919, 929-30 (8th Cir. 2013) (standard of review), cert. denied, 571
U.S. 1145 (2014). Rather, Cutbank argues that application of the § 2K2.1(b)(6)(B)
4-level enhancement results in a within-range sentence that “conflicts with the core
principle of 18 U.S.C. § 3553(a)” that a sentence “be sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”
2Though the jury found that Cutbank had three or more prior violent felony
convictions, triggering Armed Career Criminal Act penalties, the Armed Career
Criminal Guideline would have produced a total offense level of 34. The Guidelines
provide that the greater offense level applies. See USSG § 4B1.4(b).
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In determining an appropriate sentence, “a district court should begin all
sentencing proceedings by correctly calculating the applicable Guidelines range.”
Gall v. United States, 552 U.S. 38, 49 (2007). “Before a court of appeals can consider
the substantive reasonableness of a sentence, it must first ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range.” Rosales-Mireles v. United States, 585 U.S. 129,
143-44 (2018). The court then considers whether the § 3553(a) factors warrant a
departure or variance from the advisory guidelines range sentence.
Here, the court imposed a sentence within the applicable guidelines range,
which we presume is reasonable on appeal. United States v. Goodhouse, 81 F.4th
786, 793 (8th Cir. 2023). At sentencing, the court noted its review of the PSR and
sentencing memoranda and reviewed § 3553(a) factors that could warrant a variance.
“Thus, the district court was aware of [Cutbank’s] arguments, and we therefore
presume that the district court considered and rejected them.” United States v.
Masood, 133 F.4th 799, 809 (8th Cir. 2025) (quotation omitted). “To uphold the
sentence, we do not require a district court to provide a mechanical recitation of the
factors it weighed; it simply must be clear from the record that the district court
actually considered the § 3553(a) factors in determining the sentence.” United States
v. Maluoth, 121 F.4th 1158, 1164 (8th Cir. 2024) (quotation omitted). Cutbank had
nearly a dozen prior felony convictions, many involving violence and firearms. The
offense of conviction involved domestic abuse, kidnaping, assault in the victim’s
home in the presence of her children, and injuring a police officer while resisting
arrest. The district court did not abuse its substantial sentencing discretion and
impose a substantively unreasonable sentence when it sentenced Cutbank to a within-
range 292-month term of imprisonment.
The judgment of the district court is affirmed.
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