Alice McCabe v. Michael Parker

1The Honorable Raymond C. Clevenger, III, Judge of the United States Court
of Appeals for the Federal Circuit, sitting by designation.
2The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1456
___________
United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Cory Pazour, * [PUBLISHED]
*
Defendant-Appellant. *
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Submitted: June 14, 2010
Filed: June 22, 2010
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Before BYE, CLEVENGER, 1 and COLLOTON, Circuit Judges.
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PER CURIAM.
A grand jury indicted Cory Pazour for being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pazour pleaded guilty to the
offense as charged and the district court 2 sentenced Pazour to 37 months
imprisonment. On appeal, Pazour argues the district court erred in applying a two-
level sentencing enhancement for possession of a stolen firearm, see U.S.S.G.

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3The indictment alleged that Pazour possessed only two firearms; however, the
Presentence Report suggested an enhancement for the offense involving three
firearms. Pazour does not challenge the application of this enhancement on appeal.
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§ 2K2.1(b)(4)(A), and a four-level sentencing enhancement for possession of a firearm
in connection with another felony, see U.S.S.G. § 2K2.1(b)(6). We affirm.
I
The Presentence Report reveals the following undisputed facts. Pazour, a
convicted felon, was holding three firearms (a Savage Model 110E .223 caliber rifle,
a Benelli Super Black Eagle 12 gauge shotgun, and a Remington 870 20 gauge youth
shotgun) in his home for a friend who owned the firearms. On January 6, 2009,
Pazour pawned, without his friend’s permission, the .223 caliber rifle and the 12
gauge shotgun at the Mister Money in Cedar Rapids, Iowa. Pazour later pawned the
20 gauge shotgun at Marion Guns and Gold. Later, when Pazour’s friend wanted to
reclaim the firearms, all three were missing. A grand jury indicted Pazour for being
a felon in possession of firearms, to which Pazour pleaded guilty.
Based on the Presentence Report, to which neither party objected, the district
court determined Pazour had an initial base offense level of 14 as recommended
pursuant to U.S.S.G. § 2K2.1(a)(6)(A). The district court applied U.S.S.G.
§ 2K2.1(b)(1)(A), which increases the offense level by two levels for offenses
involving between three and seven firearms3, U.S.S.G. § 2K2.1(b)(4)(A), which
increases the offense level by two levels if the firearms are stolen, U.S.S.G.
§ 2K2.1(b)(6), which increases the offense level by four levels if any firearm is
possessed in connection with another felony offense, and U.S.S.G. § 3E1.1(a), which
reduces the offense level by three levels if the defendant accepts responsibility.
Applying these enhancements resulted in a total offense level of 19. With Pazour’s
criminal history category of II, the district court calculated an advisory guidelines

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range of 33-41 months imprisonment. The district court sentenced Pazour to 37
months imprisonment.
On appeal, Pazour argues the district court erred in applying the enhancements
under U.S.S.G. § 2K2.1(b)(4)(A) and § 2K2.1(b)(6). Since Pazour did not object to
these enhancements at sentencing, this court reviews for plain error. United States v.
Tipton, 518 F.3d 591, 597 (8th Cir. 2008); see also United States v. Ristine, 335 F.3d
692, 694 (8th Cir. 2003). This court may correct an error not raised at the district
court when the appellant demonstrates (1) there is an error; (2) the error is clear and
obvious, rather than subject to reasonable dispute; (3) the error affects his substantial
rights; and (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Puckett v. United States, 129 S.Ct. 1423, 1429 (2009).
II
Pazour argues the application of U.S.S.G. § 2K2.1(b)(4)(A), for possession of
stolen firearms, was erroneous because the firearms were not stolen when he held
them at his friend’s request. Rather, according to Pazour, the firearms only became
stolen when he pawned the firearms without permission, at which point he no longer
possessed the firearms. The government responds, arguing that the firearms became
stolen at an earlier point in time, specifically, as Pazour took the firearms to the pawn
shop to use as collateral for a loan. Alternatively, the government argues Pazour
retained constructive possession after he pawned the guns, because of his right to
repay the loan and retrieve the guns.
The Sentencing Guidelines § 2K2.1(b)(4)(A) provides that “if any firearm is
stolen, increase by two levels.” The Guidelines do not define the term “stolen.” In
United States v. Bates, this court determined the term stolen in § 2K2.1(b)(4)
“includes 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

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common law larceny.” 584 F.3d 1105, 1109 (8th Cir. 2009). In doing so, we
imported the construction which the Supreme Court gave the same term in the
National Motor Vehicle Theft Act, 18 U.S.C. § 2312. Id. at 1108-09; see also United
States v. Turley, 352 U.S. 407, 417 (1957). Standing alone, the definition provides
little guidance in determining whether Pazour stole the firearms when he pawned
them, or, as the government argues, whether he stole them at an earlier point in time.
A review of our prior case law is similarly of limited help in this case.
Unexceptionally, this court has upheld the application of the § 2K2.1(b)(4)(A) two-
level enhancement when the firearm was stolen and subsequently possessed. See
United States v. Hedger, 354 F.3d 792 (8th Cir. 2004) (applying enhancement when
firearm was reported stolen and defendant was later found with firearm); United
States v. Kenney, 283 F.3d 934 (8th Cir. 2002) (applying enhancement when
defendant removed firearms from parents’ home without permission and later pawned
firearms); United States v. Hawkins, 181 F.3d 911 (8th Cir. 1999) (applying
enhancement when defendant acquired stolen guns through burglary). Neither party
cites to, and the court’s own research has failed to uncover, an instance of the
enhancement being applied, or rejected, on the theory that a borrowed firearm
becomes stolen when the defendant begins the process of pawning the firearm.
We are also without clear precedent with respect to the government’s alternative
argument that Pazour maintained possession after the firearms were pawned.
Constructive possession of a firearm is established when a person has dominion over
the premises where the firearm is located, or control, ownership, or dominion over the
firearm itself. United States v. Kelley, 594 F.3d 1010, 1014 (8th Cir. 2010) (quoting
United States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993)). Stated differently,
constructive possession generally requires knowledge of an object, the ability to
control it, and the intent to do so. United States v. Lee, 356 F.3d 831, 837 (8th Cir.
2003). In prior cases, we have upheld the application of the enhancement under
§ 2K2.1(b)(4)(A) where the defendant’s dominion or control was sufficient to support
a finding of constructive possession. See, e.g., United States v. Kelley, 594 F.3d 1010

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4State v. Bennett, No. 23516-1-II, 2000 WL 60031 (Wash. App. Jan. 14, 2000)
(unpublished opinion) does lend some support to the government's theory of
constructive possession. In Bennett, the defendant argued on appeal that the evidence
was insufficient to prove he ever possessed the firearms, either before or after the
defendant and his brother pawned the firearms. Id. at *2. The Washington Court of
Appeals held the evidence was sufficient to find possession. The court stated in its
reasoning: "Bennett accompanied his brother and the firearms into the pawnshops,
whether he actually handled the weapons or not. He signed the pawn slips and
received money in exchange for the firearms. His presence was required before they
could be redeemed." Id. Based on the final reason stated, the defendant's right to
redemption, Bennett could be read to imply that the defendant constructively
possessed the firearms after he pawned them, although the opinion only necessarily
holds that the evidence was sufficient to prove that the defendant possessed the guns
at some point, either before or after he pawned them.
In light of our ultimate holding that the district court did not clearly and
obviously err in imposing the enhancement under § 2K2.1(b)(4)(A), we take no
position today on whether we agree with Bennett or ultimately whether Pazour
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(8th Cir. 2010) (applying enhancement when firearms were found in shed on
defendant’s property); United States v. Lee, 356 F.3d 831 (8th Cir. 2003) (finding
constructive possession where the defendant was able to direct officers to the drugs);
United States v. Lemon, 239 F.3d 968 (8th Cir. 2001) (holding that being present in
another’s residence, with key to residence, and with contraband in personal coat was
sufficient for constructive possession); United States v. Surratt, 172 F.3d 559 (8th Cir.
1999) (finding constructive possession where the contraband was found inside
residence of defendant); United States v. Brett, 872 F.2d 1365 (8th Cir. 1989)
(possessing key to home where drugs were present was sufficient for constructive
possession).
These cases and others provide limited guidance here because, in our view, the
degree of control Pazour exercised over the firearms after he pawned them is much
more limited when compared to the degree of control exercised by defendants in cases
where this court determined constructive possession exists. 4 Pazour’s control over the

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constructively possessed the firearms after he pawned them.
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firearms was limited by factors such as his ability to repay the loan, the operating
hours of the pawn shop, and terms of the pawn.
Returning to the broader question of the applicability of § 2K2.1 (b)(4)(A) to
this case, we need not pass judgment today on the parties' competing interpretations
of when Pazour stole the guns, and when, if ever, Pazour was dispossessed of them.
Under plain error review, it is enough that the Sentencing Guidelines and our prior
caselaw do not supply a clear answer, and that Pazour's claim of error is at least
"subject to reasonable dispute." See Puckett, 129 S. Ct. at 1429; see also United
States v. Sickinger, 179 F.3d 1091, 1093 n.3 (8th Cir. 1999) (finding no plain error
on the grounds that defendant could not show that any district court error was “clear
and obvious”); see also United States v. Olano, 507 U.S. 725, 734 (1993) (“plain” is
synonymous with “clear” or “obvious”; at minimum, court of appeals cannot correct
error under plain-error rule unless error is clear under current law); United States v.
Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam) (noting that when explicit
language of statute or rule does not specifically resolve issue, there can be no plain
error where there is no precedent from Supreme Court or appeals court directly
resolving it). Because our review of the Sentencing Guidelines and relevant precedent
did not uncover any authority clearly and obviously supporting Pazour's position, and
because at least one case arguably supports the government's position, see Bennett,
2000 WL 60031, we conclude the district court did not commit plain error in applying
the two-level enhancement under § 2K2.1(b)(4)(A).
III
Pazour next argues he did not possess the firearms in connection with the felony
offense of theft (Iowa Code § 714.1) because when the theft occurred he no longer
possessed the firearms. Additionally, Pazour argues that this court has never applied

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an enhancement under U.S.S.G. § 2K2.1(b)(6) where the felon no longer possessed
the firearm.
Under U.S.S.G. § 2K2.1(b)(6), a four-level enhancement is recommended when
the defendant used or possessed any firearm or ammunition in connection with
another felony offense. In United States v. Regans, this court stated that “in
connection with” means the firearm must have some purpose or effect with respect to,
and must facilitate or have the potential of facilitating, another felony offense and the
firearm’s presence or involvement cannot be the result of accident or coincidence.
125 F.3d 685, 686 (8th Cir. 1997).
It is clear the firearms became stolen when Pazour pawned them. See Iowa
Code § 714.1(2) ("A person commits theft when the person . . . [m]isappropriates
property which the person has in trust, or property of another which the person has in
the person's possession or control, whether such possession or control is lawful or
unlawful, by using or disposing of it in a manner which is inconsistent with or a denial
of the trust or of the owner's rights in such property . . . ."). This court has applied the
four-level enhancement in cases involving a firearm possession crime and another
felony offense “through which the weapon was obtained.” See United States v.
Hedger, 354 F.3d 792, 795 (8th Cir. 2004) (applying enhancement for stealing firearm
from gun shop); United States v. Kenney, 283 F.3d 934, 937-39 (8th Cir. 2002)
(applying enhancement for burglary of firearms from parents’ home). In this case,
even though the firearms were not obtained through the felony offense, the firearms
became stolen, like the firearms in Hedger, through the felony theft. More
importantly, the firearms facilitated the theft because without Pazour’s possession of
the firearms, he would not have been able to steal the firearms by pawning them–in
other words, like in Kenney and Hedger, the firearms facilitated the theft because the
firearms were the stolen articles of the theft itself. Therefore, we agree with the
district court that the firearms facilitated the theft, and possession of the firearms was
not accident or coincidence. Regans, 125 F.3d at 686. Thus, we conclude the district

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court did not err in applying the enhancement under U.S.S.G. § 2K2.1(b)(6) for
possession of a firearm in connection with another felony offense.
IV
Accordingly, we affirm.
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