United States of America v. Robert Charles Shelton

United States Court of Appeals
For the Eighth Circuit
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No. 22-3425
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Robert Charles Shelton
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 19, 2023
Filed: October 6, 2023
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Before SMITH, Chief Judge, ARNOLD and ERICKSON, Circuit Judges.
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ARNOLD, Circuit Judge.
Police officers searched a bag belonging to Robert Shelton and found
methamphetamine, drug paraphernalia, and a BB gun that resembled a handgun. As
a result, Shelton pleaded guilty to possessing a controlled substance with intent to
distribute it. See 21 U.S.C. § 841(a)(1), (b)(1)(A). In calculating the recommended

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sentencing range under the Sentencing Guidelines, the district court1 applied a two-
level enhancement to Shelton's base offense level because he possessed a "dangerous
weapon," namely, the BB gun. Shelton maintains that the court erred in applying the
enhancement. We affirm.
The relevant enhancement applies "[i]f a dangerous weapon (including a
firearm) was possessed." See USSG § 2D1.1(b)(1). Application Note 11(A) to that
section provides that the definitions of "dangerous weapon" and "firearm" are found
in the commentary to USSG § 1B1.1. Application Note 1(E) to § 1B1.1 defines a
"dangerous weapon" to include "an instrument capable of inflicting death or serious
bodily injury" or "an object that is not an instrument capable of inflicting death or
serious bodily injury but . . . closely resembles such an instrument." Application Note
1(M) explains that "serious bodily injury" is "injury involving extreme physical pain
or the protracted impairment of a function of a bodily member, organ, or mental
faculty; or requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation." Finally, the definition of "firearm" contained in Application Note 1(H)
explicitly states that BB guns are "a dangerous weapon but not a firearm." The district
court determined that the BB gun was a dangerous weapon both because it was
capable of inflicting serious bodily injury and because it closely resembled a real
firearm. It then sentenced Shelton to 235 months' imprisonment, which was at the
bottom of the recommended range of 235–293 months.
Shelton maintains that the district court erred in applying the enhancement. He
asserts that a BB gun is not capable of inflicting death or serious bodily injury. He
also asserts that, even if the BB gun closely resembles an actual firearm, the court
should disregard that part of the definition of "dangerous weapon" because, as
1The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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commentary, it improperly expands, rather than interprets, what he believes is an
unambiguous phrase in the Guidelines's text.
We need not resolve the extent to which the "closely resembles" part of the
definition applies because we think that the part of the definition that Shelton takes
no issue with—whether the instrument is capable of inflicting death or serious bodily
injury—sweeps in BB guns. As the district court explained, it might be difficult to
imagine a BB gun causing death, but it can certainly cause serious bodily injury. The
BB gun here contains a written warning of the danger of serious injury. BB guns can
cause "protracted impairment of a function of a bodily member" such as by blinding,
see Volk v. Ace Am. Ins. Co., 748 F.3d 827, 828 (8th Cir. 2014), and a victim shot
with a BB gun might require medical intervention such as surgery or hospitalization.
We find it unsurprising that the Guidelines commentary explicitly classifies BB guns
as dangerous weapons because that result follows from the unchallenged part of the
commentary's definition of "dangerous weapon." We discern no error here.
Affirmed.
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