Date: 11-30-2017

Case Style:

Case Number: 16-8040

Judge: Gregory A. Phillips

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Wyoming (Laramie County)

Plaintiff's Attorney: Stuart S Healy, III

Defendant's Attorney: Tom Fleener

Description: In February 2014, James Keith Beierle was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At his first sentencing
hearing, the district court reviewed Beierle’s criminal history from the 1980s, which
included state felony convictions for burglary, robbery, and possession of a weapon
by a prisoner. The court determined that these three convictions qualified as violent
felonies under the residual clause1 of the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B)(ii). Beierle’s status as an armed career criminal required the
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 The residual clause included in ACCA’s definition of a “violent felony” any
offense that “involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
FILED
United States Court of Appeals
Tenth Circuit
November 29, 2017
Elisabeth A. Shumaker
Clerk of Court
2
district court to impose a mandatory-minimum fifteen-year sentence. But the next
year, while Beierle’s direct appeal was still pending, the Supreme Court struck down
ACCA’s residual clause on vagueness grounds. See Johnson v. United States, 135
S. Ct. 2551, 2557, 2563 (2015).
In response to Johnson, we reversed Beierle’s ACCA-imposed fifteen-year
sentence while affirming his conviction. See United States v. Beierle, 810 F.3d 1193,
1201–02 (10th Cir. 2016) [Beierle I]. On remand, the district court resentenced
Beierle to seventy-seven months of imprisonment under the U.S. Sentencing
Guidelines. Beierle now attacks that sentence, too, arguing that the district court
miscalculated his total offense level by adding two levels because his offense
“involved three or more firearms,” see U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(1) (U.S. Sentencing Comm’n 2013), and by adding another four levels
because he “used or possessed any firearm . . . in connection with another felony
offense,” see id. § 2K2.1(b)(6)(B). Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742, we affirm Beierle’s sentence.
BACKGROUND
Beierle’s current troubles began on a Sunday afternoon in January 2013 at a
truck stop in Burns, Wyoming. Beierle was standing in the checkout line when he
met a couple—Mr. Redfern and his wife, Ms. Nygren—whom he eventually invited
to “hang out” and drink beer at his shop. Supp. R. Vol. IV at 563.
After about three hours, Redfern and his companions left, and Beierle thought
that they had gone for good. But when he went back into his house, Beierle saw
3
Redfern’s five-year-old daughter still there, playing with his own daughter. Beierle
asked his daughter what was going on, and she replied that Redfern had come in, said
that he would be right back (but not where he was going), and left the little girl. At
first, Beierle was “shocked”—“[h]e couldn’t believe that these people that he had just
met had left their daughter with him.” Supp. R. Vol. Ib at 131. Then Beierle grew
“uncomfortable” and “angry” at Redfern for leaving the child in his care. Supp. R.
Vol. V; Supp. R. Vol. Ib at 131.
The sun set and two hours passed before Redfern called to say that he was on
his way back to pick up his daughter. As soon as Redfern’s car pulled up to the shop,
Beierle sent the little girl over to her father, and she climbed in the backseat of the
car.
Meanwhile, in front of the shop, Redfern approached and verbally confronted
Beierle. By this point, Beierle was “very angry”; he wanted Redfern to take the little
girl and leave his property. Supp. R. Vol. Ib at 134. Beierle was so angry, in fact, that
he never could remember exactly what Redfern said, only that the man had “become
mouthy[,] rambling on about a lot of nothing,” Supp. R. Vol. IV at 564, and “talking
crap, mumbo jumbo,” Supp. R. Vol. Ib at 135. So Beierle sent his own daughter
toward the back of the shop and picked up an assault rifle that he’d set just inside the
doorway. Supp. R. Vol. Ib at 136.
Holding the gun, Beierle told Redfern, “You need to get the hell out of here.”
Supp. R. Vol. II at 318. Redfern reacted by warning Beierle to “[g]et the gun out of
[his] face” and grabbing, unsuccessfully, at the barrel. Supp. R. Vol. Ib at 138.
4
Beierle replied that he “wouldn’t waste a bullet on him.” Supp. R. Vol. II at 318.
Instead, while standing within ten feet of Redfern, Beierle fired a few rounds to the
west, into a stand of trees. Scared, Redfern got back in the car. But then he “mouthed
off a little more,” so Beierle fired a few more rounds in the opposite direction, toward
a pasture. Supp. R. Vol. II at 312. Redfern closed the car door and started the car
down the driveway. About 150 to 200 feet away from the shop, however, the car’s
brake lights flashed on, and Beierle, who had followed Redfern about 30 feet down
the driveway, fired two more rounds into the pasture. At last the car—and Redfern—
left. Only then did Beierle feel “secure” enough to lock the rifle in a gun safe in his
garage.2 Supp. R. Vol. V.
At 6:24 that evening, the local sheriff’s department received a 9-1-1 call about
an incident involving a firearm and “shots fired” at Beierle’s property. Supp. R.
Vol. II at 355. After speaking with Redfern and his companions about the incident,
the responding deputies tried to speak with Beierle by phone but got no answer. At
about 8 or 9 p.m., two deputies drove out to Beierle’s property. Though they saw
lights on inside the house, no one answered when they knocked on the door. Nor did
they find anyone in the shop. Next to the shop door, however, the deputies noticed
four spent shell casings. They found two more shell casings between twenty and forty
feet down the driveway. All six casings were .223 caliber, and their locations fit “the
description of events” that Redfern and his companions had provided to the deputies.
2 The shop and garage are separate structures, two of several outbuildings on
Beierle’s property.
5
Supp. R. Vol. Ib at 114. So too did the presence of gunshot residue on Redfern’s hat,
shirt, and pants.
Two days after the incident, Deputy Wilson—whom Beierle had known for
over a decade—convinced Beierle to give “his side of the story.” Supp. R. Vol. Ib at
125. In a recorded interview that day, Beierle described meeting “some bad cats
down at the truck stop.” Id. at 127. He had made a mistake, he told Deputy Wilson, to
invite these strangers to his property, and he “should have just called the sheriff’s
department” when he discovered the little girl still in his house. Id. at 133. But he
hadn’t. Instead, Beierle admitted to Deputy Wilson that he had fired a .223-caliber
assault rifle into the air to get Redfern to leave, because Redfern had grown
“mouthy” when he had returned to pick up his daughter. Supp. R. Vol. II at 301.
Deputy Wilson asked “very specifically” what Redfern had said to provoke this
reaction, but Beierle responded, “I don’t remember. I was angry. I just wanted them
to leave. [Redfern] was talking crap, mumbo-jumbo.” Supp. R. Vol. Ib at 134–35.
Deputy Wilson also directly asked whether Beierle had been threatened, but again,
Beierle couldn’t remember: “I was hot; I was fuming, so I didn’t really pay attention
to his verbiage.” Supp. R. Vol. V. But Beierle did tell Deputy Wilson that Redfern
had left a voice-mail message on his shop phone at about 7 p.m. (after the incident
and the 9-1-1 call). In the message, Redfern had told Beierle, “You don’t shoot your
gun off in my face in front of my daughter.” Supp. R. Vol. II at 316.
After speaking with Deputy Wilson for almost an hour, Beierle agreed to
provide a written statement. In three handwritten pages, Beierle summarized what he
6
had just told Deputy Wilson. He said that Redfern “became mouthy” on his return, so
Beierle had fired the assault rifle in three bursts: first a few rounds to his right
(causing Redfern to hesitate but keep talking), then a few to his left (causing Redfern
to get in the car and start backing up), and finally, “a couple more” to oust Redfern
from his property. Supp. R. Vol. IV at 564–65. Beierle said that about twenty minutes
later, Redfern called his shop and left a threatening voice-mail message. Id. at 565.
After listening to it, Beierle explained, he left and spent the next few hours at a
neighbor’s “[t]o avoid retaliation.” Id.
Two weeks after this initial interview, Deputy Wilson and his supervisor,
Sergeant Hollanbach, returned to Beierle’s property to retrieve the gun that Beierle
had fired. Beierle signed a permission-to-search form, and then led the sergeant and
the deputy into his garage, toward “a pretty big gun safe” with a combination lock.
Supp. R. Vol. Ib at 141–42. Once at the safe, Beierle started to turn the dial on the
lock but paused. He walked to the back of the safe, looked at a piece of paper on
which, he told the officers, he kept the combination, and “opened the safe right up.”
Supp. R. Vol. II at 192. From the safe, Beierle pulled an assault rifle and a loaded
magazine and said either, “This is what you’re here to get,” or, “This is the one
you’re looking for,” before passing the rifle and magazine to Deputy Wilson.
Supp. R. Vol. Ib 142–43; Supp. R. Vol. II at 193. In the safe, the deputies saw three
more firearms: two rifles and a shotgun.
While Deputy Wilson secured the assault rifle and ammunition that Beierle
had handed him, Sergeant Hollanbach asked Beierle, “Correct me if I’m wrong, but
7
don’t you have a felony conviction?” Supp. R. Vol. II at 194. Beierle admitted that he
did and, in response to the sergeant’s next question, explained that he had used his
then-wife’s social-security number to acquire the assault rifle, as well as another gun,
a year or two earlier. Beierle also told the sergeant that the safe and its contents
belonged to his father, who was living in California, and that he knew that he needed
to return all of it to his father’s property. Sergeant Hollanbach then asked Beierle to
provide another written statement, and this time Beierle wrote: “This gun was left
behind by my ex-wife, and at [sic] the evening in question when all the trash talk
became threatening, I grabbed and shot this gun.” Supp. R. Vol. IV at 566.
The next morning, Sergeant Hollanbach asked Beierle to come to the sheriff’s
office to discuss the provenance of the assault rifle in more detail. Beierle complied
and, assuring the sergeant that he “didn’t forge any of it,” described how he had
gotten the necessary paperwork from a friend with a Federal Firearms License.
Supp. R. Vol. II at 196–97. Beierle had given the paperwork to his then-wife to
complete and sign, and then returned it to his friend, who ordered two guns for the
couple, including the assault rifle at issue. That rifle, which had been meant as a gift
for his then-wife, had stayed with Beierle after the couple divorced. (So too had the
other gun; although Beierle claimed to have disposed of it soon after the split.3)
Sergeant Hollanbach told Beierle that “it wasn’t a good idea” to have firearms and
ammunition at his home, “with him being a felon,” and that “once this was done
[Beierle] needed to get the safe moved out and take it back to his dad’s house.”
3 This gun wasn’t one of the four found in the safe.
8
Supp. R. Vol. II at 197. Beierle agreed and said, “You know, when I put the [assault
rifle] back in the safe the other day . . . I was thinking about doing that.” Id. at 197–
98.
On February 1, 2013, Beierle voluntarily surrendered a box of ammunition
“with a variety of different types in it” to the sheriff’s department, and Sergeant
Hollanbach sent all of the department’s reports to the federal Bureau of Alcohol,
Tobacco, and Firearms (ATF). Supp. R. Vol. II at 202. From there, the ATF took
over the investigation.
Meanwhile, also in February 2013, Wyoming state prosecutors charged Beierle
with (among other crimes) aggravated assault under section 6-2-502(a)(iii) of the
state’s criminal code. See Wyo. Stat. Ann. § 6-2-502(a)(iii) (2017) (“A person is
guilty of aggravated assault and battery if he . . . [t]hreatens to use a drawn deadly
weapon on another unless reasonably necessary in defense of his person, property or
abode or to prevent serious bodily injury to another[.]”). The state dropped all the
charges, however, once the federal felon-in-possession prosecution began in
May 2013.
The federal case went to trial in February 2014—over a year after the
incident—and by then, Beierle had dramatically changed his story. Supported by
testimony from a former employee, two friends, and his father, Beierle denied that he
had ever possessed, handled, or fired the assault rifle.4
4 Beierle stipulated to being a felon and to the assault rifle’s interstate nexus.
9
Beierle testified, instead, that after Redfern (who didn’t testify) left his
daughter behind, Redfern threatened him over the phone, “creat[ing] a fear.” Supp. R.
Vol. II at 265. So Beierle brought three of his employees, who happened to be
working on his property that night, into his shop and “briefed them” on the situation.
Id. Soon he saw unfamiliar headlights travel up his driveway and recognized Redfern,
so he sent Redfern’s daughter to the car. When Redfern got out and turned toward
Beierle “to continue making his threat,” Beierle told his employees, “Whatever
happens, happens” and took his own daughter upstairs. Id. at 266. According to
Beierle, “Nico,” one of the three employees, said, “I will handle this,” and went
outside with another employee. Id. at 267. From upstairs, Beierle then heard
“screaming, some hollering, and rapid fire of a gun, some silence, maybe a minute or
two, . . . [then] another expel of fire, four, maybe five shots[] . . . .” Id. at 267–68.
Beierle claimed to have fabricated a contrary story for law enforcement because he
“d[id]n’t know anybody else’s situation” (hinting, without quite saying so, that he
doubted his Hispanic employees’ immigration status).
Beierle further testified that Nico had used an assault rifle that his ex-wife had
left behind in his garage, the building next to his shop, after they’d separated. Beierle
didn’t even see the gun until three days after the incident, when he walked into the
shop and saw it lying on a table saw. Without touching the gun, he immediately
walked out of the building. Eventually, Beierle called his father in California for the
combination to his gun safe, which he wrote on the wall abutting the safe. Then,
Beierle passed along the location of the combination to a friend and sometime10
employee and asked the man to place the gun in the safe for him. According to
Beierle, the man did so while Beierle wasn’t home. During cross-examination,
Beierle admitted that he’d eventually used a skid-steer loader to move the safe out of
his garage and onto his father’s property.
The jury didn’t believe Beierle’s updated version of events. After deliberating
for less than five hours, it found Beierle guilty of being a felon in possession of the
sole firearm charged—the assault rifle.
Nor did the sentencing court find Beierle’s testimony credible. At the first
sentencing in June 2014, the court thought that ACCA required a fifteen-year
mandatory-minimum sentence, rendering the government’s proposed enhancements
for specific offense characteristics immaterial. The court nevertheless recognized that
if its ACCA analysis turned out to be incorrect, then the § 2K2.1(b)(1)(A)
enhancement for multiple firearms would affect the applicable range under the U.S.
Sentencing Guidelines. The court therefore stated:
It is my conclusion that the evidence from trial is sufficient to show
actual possession of three or more firearms. The defendant opened the
safe after referring to the safe code once he was asked by law
enforcement to retrieve the assault rifle. The assault rifle was in the
same safe as the other guns that result in the enhancement.
R. Vol. I at 128.
After Beierle I vacated Beierle’s ACCA-based sentence and remanded for
resentencing, see Beierle I, 810 F.3d at 1201–02, the district court held a second
sentencing hearing in April 2016. At that hearing, the district court addressed the
specific-offense-characteristic enhancements in more detail because they, rather than
11
ACCA’s mandatory minimum, now guided the sentence. As a threshold matter, the
court noted that although its application of § 2K2.1(b)(1)(A) “was perhaps not well
stated” during the first sentencing hearing, it remained the court’s finding “that the
offense involved four firearms.” R. Vol. III at 383–84. The court noted that:
(1) Beierle had opened the safe; (2) he had handed the assault rifle to Deputy Wilson
and Sergeant Hollanbach; (3) at the time, the other three weapons “were in that same
safe”; and (4) those three weapons “were as accessible as the assault rifle was to the
defendant.” Id. at 384. Thus, the court concluded, “my finding remains, as stated in
the prior sentencing, [that] the two-level enhancement is properly applied because the
preponderance of evidence shows actual possession [of the three additional guns] by
the defendant.” Id.
Next, the court turned to § 2K2.1(b)(6)(B)’s four-level enhancement. The
court noted that Beierle had twice told law enforcement “that he grabbed the gun and
not only threatened to use it but actually did use the weapon against Mr. Redfern.”
R. Vol. III at 385. And although Beierle had recanted these statements at trial, all of
the physical evidence—including the shell casings in Beierle’s driveway, the gunshot
residue on Redfern’s clothing, and the voice-mail message from Redfern accusing
Beierle of pointing a gun at him—supported those early statements. “Further,” the
court found, “there’s really no indication of any actions by Mr. Redfern suggesting
that it was reasonably necessary for the defendant to threaten or to use the firearm to
protect either himself, others, or his own property.” R. Vol. III at 385. Accordingly,
the court determined that the underlying offense of felon-in-possession “occurred
12
during the commission of aggravated assault and battery under [Wyo. Stat. Ann.
§ 6-2-502(a)(iii)].” Id. at 386.
The court set Beierle’s base offense level at 20, because the assault rifle was
capable of accepting a high-capacity magazine. Next, the court added two levels
because “the offense conduct involved three or more firearms possessed by the
defendant,” plus four more levels because the offense occurred during the
commission of an aggravated assault and battery. Id. That offense level, along with
Beierle’s criminal-history category IV, yielded a sentencing range of 92 to 115
months.5 But because Beierle had done well enough in prison since his first
sentencing that he’d earned a transfer to another facility, the court varied downward
two levels for “post-offense rehabilitation.” R. Vol. III at 412. In the end, the court
resentenced Beierle to seventy-seven months of imprisonment, plus the same three
years of supervised release.
Beierle now appeals that sentence.
DISCUSSION
Beierle acknowledges that because the assault rifle underlying his violation of
18 U.S.C. § 922(g)(1) qualified as “a semiautomatic firearm capable of accepting a
large capacity magazine” under § 2K2.1(a)(4)(B), his base offense level is 20. But he
5 Despite the wide and material gulf between Beierle’s trial testimony and his
interviews with law enforcement, the government never asked the court to apply
§ 3C1.1’s two-level increase for “[o]bstructing or [i]mpeding the [a]dministration of
[j]ustice.” See U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(B), (G) (U.S.
Sentencing Comm’n 2013) (listing both the commission of perjury and the provision
of “materially false statement[s] to a law enforcement officer” as examples of
conduct covered under this enhancement).
13
disputes the district court’s application of two enhancements based on the specific
characteristics of his offense: (1) a two-level enhancement under § 2K2.1(b)(1)(A)
because the “offense involved” between three and seven firearms, and (2) a four-level
enhancement under § 2K2.1(b)(6)(B) because he “used or possessed” a firearm “in
connection with another felony offense”—specifically, aggravated assault as defined
in Wyo. Stat. Ann. § 6-2-502(a)(iii).
In considering a sentencing challenge such as Beierle’s, we review the district
court’s interpretation of the sentencing guidelines de novo but its factual
determinations for clear error, United States v. Hoyle, 751 F.3d 1167, 1172, 1174
(10th Cir. 2014), remembering that the government must prove any fact underlying a
sentence enhancement by a preponderance of the evidence, United States v. Garcia,
635 F.3d 472, 478 (10th Cir. 2011). Under the clear-error standard, we can’t
substitute our own judgment for the district court’s. Garcia, 635 F.3d at 478. Rather,
we must look at the evidence and resulting inferences in the light most favorable to
the district court’s factual findings, and we may disturb those findings only if they
have no basis in the record. Hoyle, 751 F.3d at 1174.
With that dual standard of review in mind, we address the challenged sentence
enhancements in turn.
A. Section 2K2.1(b)(1)(A)’s Two-Level Enhancement for Offenses Involving
Three or More Firearms
Section 2K2.1(b)(1)(A) states that if “the offense involved” between three and
seven firearms, then the sentencing court should add two offense levels. “For
14
purposes of calculating the number of firearms under [this subsection],” Application
Note 5 tells us to “count only those firearms that were unlawfully sought to be
obtained, unlawfully possessed, or unlawfully distributed, including any firearm that
a defendant obtained or attempted to obtain by making a false statement to a licensed
dealer.” U.S. Sentencing Guidelines Manual § 2K2.1 n.5 (U.S. Sentencing Comm’n
2013). From these listed unlawful activities, the district court concluded that “the
preponderance of the evidence show[ed] actual possession.” R. Vol. III at 384.
Beierle now challenges this determination, arguing that he never had actual
possession of any firearm other than the one underlying his conviction. Because
Beirele did not make this objection in the district court, we review for plain error.
United States v. Lin, 410 F.3d 1187, 1190 (10th Cir. 2005).
“Actual possession exists when a person has direct physical control over a
thing.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). Beierle’s early
statements to the deputies, as well as the physical evidence recovered outside the
shop, establish that Beierle picked up the assault rifle and fired it. But the
government concedes in its briefing6 that it had no evidence that Beierle had ever
taken actual possession of any of the three other firearms found in the safe. We agree
that the district court legally erred by equating accessibility of the other three
6 In its brief, the government stated that the record was “clear” regarding the
absence of actual possession. Appellee’s Br. at 23. But at oral argument, the
government wavered, suggesting that Beierle was in actual possession of all four
firearms when he used a loader to move the safe. Nothing in the record suggests that
any of the firearms was in the safe while Beierle moved it, though. And even if such
evidence existed, we think it a stretch to hang a determination of actual possession on
such gossamer.
15
firearms with “actual possession,” R. Vol. III at 384, and that this error was plain.
See Henderson, 135 S. Ct. at 1784 (explaining that a felon who “hold[s] his firearms
himself” is in actual possession); see also United States v. Duran, 133 F.3d 1324,
1330 (10th Cir. 1998) (explaining, in the context of instructional error, that an error
is “plain” if it is “contrary to well-settled law”).
Though Beierle has met his burden to show the first two prongs of the plainerror
analysis, he fails on the third. See Fed. R. Crim. P. 52(b) (“A plain error that
affects substantial rights may be considered even though it was not brought to the
court's attention.”); United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012)
(explaining that to “successfully run the gauntlet” of plain-error review, a defendant
must demonstrate (1) an error that (2) is plain, (3) affects substantial rights (meaning
that it affected the outcome of the proceedings), and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings). He has not shown prejudice
from the error, that is, a reasonable probability that the error led to a different
sentencing outcome. See Lin, 410 F.3d at 1190–91.
Beierle fails on the prejudice prong because the evidence shows that he
constructively possessed the other three firearms in the safe. Section 2K2.1(b)(1)(A)
covers both constructive and actual possession of firearms. United States v.
Gambino-Zavala, 539 F.3d 1221, 1228–29 (10th Cir. 2008). And the district court’s
use of the phrase “actual possession” doesn’t confine our appellate review to that
form of possession. “We have long said that we may affirm [the district court] on any
basis supported by the record, even if it requires ruling on arguments not reached by
16
the district court . . . [,]” provided that (1) we have the power to consider the alternate
ground and (2) the opposing party has had a fair chance to address it. Jordan v. U.S.
Dep’t of Justice, 668 F.3d 1188, 1200 (10th Cir. 2011) (quoting Richison v. Ernest
Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)). As the Supreme Court explained in
S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943), “It would be wasteful to send a case
back to a lower court to reinstate a decision which it had already made but which the
appellate court concluded should properly be based on another ground within the
power of the appellate court to formulate.”
The parties to this case have already battled, in their appellate briefing and at
oral argument, over the existence of constructive possession. The record on appeal
contains the facts to support their arguments. So it’s both efficient and fair to reframe
the question: Was Beierle in constructive possession of the three other firearms in the
safe, even if the evidence didn’t show that he was in actual possession of them? Cf.
Jordan, 668 F.3d at 1200.
In evaluating this question, we are mindful of a recent change in our circuit’s
law about what it means for a person to constructively possess something. Just
months after Beierle filed his notice of appeal, we published United States v. Little,
829 F.3d 1177 (10th Cir. 2016).7 To establish constructive possession before Little,
the government didn’t need to prove that an individual intended to exercise dominion
or control over an object. See United States v. Colonna, 360 F.3d 1169, 1179 (10th
7 Beierle’s case was on direct appeal when we issued Little, so he gets the
benefit of its ruling, whatever that may be. Griffith v. Kentucky, 479 U.S. 314, 328
(1987).
17
Cir. 2004), overruled by Little, 829 F.3d at 1182. Instead, the government met its
burden by proving that a defendant had known about the firearm and had power to
exercise dominion or control over it. Colonna, 360 F.3d at 1178–79. But as we
explained in Little, 829 F.3d at 1182, the Supreme Court’s intervening decision in
Henderson changed all that. “In Henderson, the Court squarely held that constructive
possession requires both power to control an object and intent to exercise that
control.” Little, 829 F.3d at 1182 (emphasis added); see also Henderson, 135 S. Ct. at
1784 (explaining that constructive possession exists when a person who lacks direct,
physical control over an object “still has the power and intent to exercise control
over” it).
Here, the district court had abundant evidence that Beierle had the power and
intent to exercise control over the firearms seized from the safe in his shop.8 Beierle
showed his power to control the firearms when, using a combination that he had
written down, he opened the safe in front of the deputies, selected one of the four
firearms inside, and passed it to Deputy Wilson and Sergeant Hollanbach with the
statement, “This is the one you’re looking for.” All four firearms were cached on
Beierle’s property, in a shop that he solely occupied, in a safe that he alone on the
8 Despite the government’s concession that Little applies to Application
Note 5, we don’t decide the issue today. See Massachusetts v. United States, 333 U.S.
611, 624 n.23 (1948) (“We are not bound to accept [the government’s concession] as
either sound or conclusive of the litigation.”). Beierle’s inability to show the
substantial-prejudice prong of plain error would subsume any ruling that we made on
the matter.
18
property could open. The only other person with the combination (his father) was
over a thousand miles away.
In Little, we reached the same conclusion under similar circumstances. There,
law enforcement found two stolen guns in a cramped “well house” that Little rented
from a woman who lived on the same property, in a nearby trailer. Little, 829 F.3d at
1180. One of the guns was inside a duffel bag that was either in or under a sleeping
bag on the bed (which took up the length of the house and was the only place to sit).
Id. The other gun was under the bed. Id. Ammunition was also plainly visible. Id.
Furthermore, about the time that the guns had been reported stolen, Little had placed
a lock on the well house’s door. Id. at 1183. Then, on the day that officers searched
the well house, they saw Little leave the well house about seven-and-a-half minutes
after they arrived and began talking to Little’s landlady. Id. at 1180, 1183. Under
these circumstances, we determined that it would have been unreasonable for a jury
to conclude that Little didn’t know about the weapons’ presence, or that he didn’t
intend to exercise command over their locations. Id. at 1183.
In Little, 829 F.3d at 1183, we determined that the evidence would have
“compelled” a properly instructed jury to find beyond any doubt that the defendant
intended to exercise control over the weapons in the well house.9 By comparison, the
9 The facts of Little “left [the court] with no doubt that [the defendant]
intended to exercise control over the weapons.” Id. at 1183 n.4. That conclusion grew
out of the government’s failure to argue harmless error and the court’s resultant
burden to determine whether the error’s harmlessness was certain, an analysis
“necessarily more stringent than the ‘reasonable doubt’ test we would apply had the
government thoroughly developed its harmlessness argument.” Id. (citing Mollett v.
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circumstances of this case need show by only a preponderance of the evidence that
Beierle intended to exercise control over the weapons in the safe. Because the record
supports such a finding, Beierle can’t establish the prejudice prong of plain error.
For these reasons, we decline to command a do-over just to allow the district
court to correct its colloquial, rather than technical, use of the term “actual
possession.” See Jordan, 668 F.3d at 1200. Instead, we affirm the district court’s
application of § 2K2.1(b)(1)(A)’s two-level enhancement, though on grounds of
constructive, rather an actual, possession of the three additional firearms.
B. Section 2K2.1(b)(6)(B)’s Four-Level Enhancement for Defendants Who
Use or Possess a Firearm in Connection with Another Felony Offense
Section 2K2.1(b)(6)(B) provides that if the defendant “used or possessed any
firearm or ammunition in connection with another felony offense,” then the
sentencing court should apply a four-level increase. Here, the district court applied
this enhancement because Beierle had used the assault rifle “in connection” with his
commission of aggravated assault under Wyo. Stat. Ann. § 6-2-502(a)(iii). Beierle
claims that this finding was clearly erroneous.
Section 6-2-502(a)(iii) provides that an individual is guilty of aggravated
assault and battery if he “[t]hreatens to use a drawn deadly weapon on another.” The
statute excuses such conduct, however, when it is “reasonably necessary in defense
of [the individual’s] person, property or abode or to prevent serious bodily injury to
another.” Id. Latching on to this exception, Beierle claims that the district court
Mullin, 348 F.3d 902, 920 (10th Cir. 2003); United States v. Serawoop, 410 F.3d 656,
669 (10th Cir. 2005)).
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clearly erred in finding that “there[was] really no indication of any actions by
Mr. Redfern suggesting that it was reasonably necessary for [Beierle] to threaten or
to use the firearm to protect either himself, others, or his own property.” R. Vol. III
at 385. The events of that January night, Beierle points out, were disputed. Thus,
although the district court “chose to credit” the government’s version, “within [the]
universe of facts, there was in fact an ‘indication’ that Mr. Beierle was threatened,
and that it was, therefore, ‘reasonably necessary’ for him to threaten to use or to use
the firearm for protection.” Aplt.’s Opening Br. at 23.
The existence of an alternate version of events, however, isn’t enough to
render the district court’s finding clearly erroneous. To succeed with this argument,
Beierle would have to convince us not merely that the record provided some basis for
a different finding, but that the district court’s finding itself was implausible or
impermissible in light of the record. Garcia, 635 F.3d at 478. And he would have to
do so through a prism that casts the evidence and the inferences therefrom in the light
most favorable to the district court’s finding, United States v. Kitchell, 653 F.3d
1206, 1226 (10th Cir. 2011), and in a context where the district court’s credibility
determinations are “virtually unreviewable,” Hoyle, 751 F.3d at 1175 (quoting United
States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003)). Based on the
record, he can’t make that showing.
To the contrary, the record contains plenty of evidence that Beierle committed
aggravated assault and battery and that his actions weren’t “reasonably necessary”
under Wyo. Stat. Ann. § 6-2-502(a)(iii). Two days after the incident, when Deputy
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Wilson specifically asked whether Redfern had threatened him, Beierle couldn’t
remember; he explained that he had been too angry. Beierle could recall only that
Redfern had been “mouthy” and that he’d been “talking crap, mumbo jumbo.”
Supp. R. Vol. IV at 135; Supp. R. Vol. 1b at 135. Based on Beierle’s own words,
then, the district court didn’t clearly err in finding that nothing Redfern did or said
justified getting threatened with a drawn deadly weapon.
Beierle’s assertion (in his second written statement) that he “grabbed and shot”
the assault rifle only “when all the trash talk became threatening” doesn’t change this
analysis. Supp. R. Vol. IV at 566. To avoid committing clear error, the district court
didn’t have to address each potentially contradictory fact in the record. And viewing
the second written statement in the light most favorable to the court’s finding, the
statement is probably less credible than Beierle’s earlier statement, in which he didn’t
mention feeling threatened. Moreover, even accepting the truth of the second
statement, “trash talk” (even when it “bec[omes] threatening,” Supp. R. Vol. IV at
566) doesn’t warrant firing a gun at the trash-talker. Cf. Hernandez v. State, 976 P.2d
672, 676 (Wyo. 1999) (explaining, in the context of aggravated assault under section
6-2-502(a)(ii), that “the law of self-defense in Wyoming is a defense of necessity
which is evaluated under the totality of the circumstances and in light of what is
reasonable and appropriate”).
Accordingly, the district court didn’t err in concluding by a preponderance of
the evidence that Beierle “used or possessed” the assault rifle “in connection with
another felony offense” under § 2K2.1(b)(6)(B). Cf. Hoyle, 751 F.3d at 1175
22
(rejecting the argument that the district court clearly erred when, in applying
§ 2K2.1(b)(6)(B), it credited the testimony of a witness with a prior theft conviction).
We therefore affirm the district court’s application of the four-level enhancement.

Outcome: The district court didn’t err in applying either of the two challenged sentencing
enhancements under § 2K2.1 of the guidelines. We therefore affirm (although on
slightly different grounds) Beierle’s new, seventy-seven-month prison sentence.

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