Amilcar Nicolas Calderon-Lopez v. Eric H. Holder, Jr.

1The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2384
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Allison Klanecky, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 12, 2010
Filed: September 13, 2010
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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Allison Klanecky appeals the district court’s1 denial of his motion for acquittal
after a jury found him guilty of knowingly possessing a destructive device,
components for the assembly of a grenade, which was not registered to him in the
National Firearms Registration and Transfer Record, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871; and the district court’s imposition of a $125,000 fine.
We affirm.

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First, Klanecky asserts that the evidence is insufficient to support his conviction
and that, accordingly, his motion for judgment of acquittal should have been granted.
“We review the sufficiency of the evidence de novo, viewing evidence in the light
most favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v. Lockett,
601 F.3d 837, 840 (8th Cir. 2010) (quoting United States v. Washington, 318 F.3d
845, 852 (8th Cir. 2003)). “We will reverse only if no reasonable jury could have
found the defendant guilty beyond a reasonable doubt.” United States v. Shafer, 608
F.3d 1056, 1067 (8th Cir. 2010).
Viewed in this light, the government presented evidence that Klanecky resided
on rural property near Wolbach, Nebraska. Three residences and multiple
outbuildings, garages, and barns were located on the property. Acting on a tip from
Klanecky’s ex-wife, agents of the Federal Bureau of Alcohol, Tobacco and Firearms
(“ATF”) executed a search warrant on this property on July 8, 2008. The agents
discovered a bunker located underneath one of the residences accessible through the
bathroom. The bunker contained food, supplies, racks of clothing, and bunk beds.
Agents also discovered 85 grenade bodies, or “hulls,” stored in ammunition cans
located in the bunker. These grenade hulls had been “tapped.” A grenade hull is
“tapped” by threading the hole at the bottom of the grenade hull and plugging this
hole with a bolt. Testimony revealed that when plugged with a bolt the grenade hulls
were capable of holding explosive powder that would render them active. An ATF
agent testified that grenade hulls are not typically sold with the bolt inserted. Agents
also discovered reels of pyrotechnic fuse as well as fuse cut into shorter lengths. On
a workbench, agents found eight unaltered grenade hulls, fuse assemblies, and a
cordless drill. One of the fuse assemblies had been drilled to accommodate the
pyrotechnic fuse. Agents also discovered “a couple of hundred pounds” of black
powder in the bunker.

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An ATF technician testified that the parts found in the bunker could be readily
assembled in three to five minutes into a destructive device (i.e. an operational hand
grenade) by pouring black powder into a tapped grenade hull and inserting the fuse
assembly. Upon exploding, such a device would project metal fragments. According
to the technician, the items discovered in the bunker meet the definition of a
combination of parts readily assembled into a destructive device.
ATF agent Tully Kessler testified that when he met Klanecky at a service
station at the York, Nebraska exit on Interstate 80, in order to return to Klanecky items
taken from him at his arrest, Klanecky stated that he possessed the grenades in order
“to blow up stumps.” Shirley Sterkel, a friend of Klanecky’s, testified that she was
present at the this meeting and heard Klanecky make this statement to Agent Kessler.
To convict Klanecky of violating 26 U.S.C. §§ 5841, 5861(d), and 5871, the
United States was required to prove beyond a reasonable doubt that Klanecky:
(1) possessed components that could be assembled into a grenade; (2) knew the
component parts could be assembled into a grenade; (3) intended to use the
component parts as a grenade; and (4) the components were not registered to
Klanecky in the National Firearms Registration and Transfer Record. Klanecky
concedes that sufficient evidence was presented to the jury to establish the first and
fourth elements, and in this appeal, Klanecky asserts only that insufficient evidence
was presented to support a finding that he knew the component parts in his possession
could be assembled into a grenade and that he intended to assemble the component
parts into a grenade.
We conclude that Klanecky’s knowledge and intent were amply established,
considering: (1) the agents’ testimony describing Klanecky’s bunker and the type and
location of the grenade components contained therein; (2) testimony that these
components were capable of ready assembly into operable hand grenades; and
(3) Klanecky’s admission that he possessed hand grenades for the purpose of blowing

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2As pertinent to the subject offense and Klanecky’s contentions in this appeal,
section 3572(a) provides that “[i]n determining whether to impose a fine, and the
amount . . . of a fine, the court shall consider, in addition to the factors set forth in
section 3553(a)—(1) the defendant’s income, earning capacity, and financial
resources; [and] (2) the burden the fine will impose upon the defendant.”
3 USSG §5E1.2(a) provides that “[t]he court shall impose a fine in all cases,
except where the defendant establishes that he is unable to pay and is not likely to
become able to pay any fine.” The guideline factors to be used in determining the
amount of a fine are: “(1) the need for the combined sentence to reflect the seriousness
of the offense . . . , to promote respect for the law, to provide just punishment and to
afford adequate deterrence; (2) any evidence presented as to the defendant’s ability
to pay the fine . . . ; (3) the burden that the fine places on the defendant . . . ; (4) any
restitution or reparation that the defendant has made . . . ; (5) any collateral
consequences of conviction . . . ; (6) whether the defendant previously has been fined
for a similar offense; (7) the expected costs to the government . . . ; and (8) any other
pertinent equitable considerations.” Id. §5E1.2(d)(1)-(7).
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up stumps. Accordingly, there was sufficient evidence presented to support his
conviction, and the district court properly denied the motion for a judgment of
acquittal.
Klanecky also asserts that in imposing a fine of $125,000 the district court
failed to consider the factors set forth in 18 U.S.C. § 3572 or United States Sentencing
Commission, Guidelines Manual, §5E1.2(d) and, in particular, that the court failed to
consider the fact that he does not have the ability to pay such a fine. According to
Klanecky, had the district court considered these factors it would have determined he
does not have the financial ability to pay the assessed fine.
We review the imposition of a fine and the determination of its amount for clear
error. See United States v. Herron, 539 F.3d 881, 888 (8th Cir. 2008). After carefully
reviewing the record, we conclude that the district court indeed followed the
procedural requirements of section 3572(a) 2 and USSG §5E1.2(d).3 We initially note
that the fine amount was within the Guideline range. USSG §5E1.2(c)(3). Further,

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4It is true the PSR included the opinion of the United States Probation Officer
that “[b]ased upon the defendant’s impending prison sentence, as well as his current
financial situation caused by his pending divorce, it does not appear that the payment
of a fine is feasible;” however, the facts reflected in the PSR included these asset and
net worth figures, and Klanecky presented no evidence to rebut these findings.
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the presentence report (“PSR”) found Klanecky’s assets, including jointly owned
property, to total $294,127, including real estate in Grand Island and Wolbach,
Nebraska, and his net worth to be $269,127.4 At sentencing, as mandated by section
3572(a), the district court heard argument on, considered, and discussed: the nature
and circumstances of the offense; Klanecky’s criminal history and characteristics; and,
the need for the sentence to reflect the seriousness of the offense, promote respect for
the law, afford adequate deterrence to criminal conduct, and provide the defendant
with needed educational and vocational training, medical care, or other correctional
treatment. The court’s review of the PSR, the argument Klanecky presented at
sentencing, and the district court’s comments at sentencing further confirm that
Klanecky’s income, earning capacity, and financial resources, as well as the burden
that a fine would impose upon him, were also considered. Accordingly, we find that
the inquiry required by section 3572(a) and section 5E1.2(d) was conducted.
Although “[i]t is incorrect for a court to impose a fine that the defendant has
little chance of paying,” “[t]he defendant has the burden of proving that he cannot pay
the fine.” United States v. Berndt, 86 F.3d 803, 808 (8th Cir. 1996). Klanecky argued
at sentencing that his divorce and other personal circumstances rendered him
incapable of paying a significant fine. Because he offered no evidence in support of
this argument, however, he did not meet his burden of proving an inability to pay the
assessed fine.

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We affirm the judgment of the district court.
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