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United States v. Bowers

United States Court of Appeals, Eighth Circuit

March 4, 2014

United States of America, Plaintiff - Appellee
v.
John Paul Bowers, Defendant - Appellant

Submitted November 22, 2013.

Appeal from United States District Court for the Southern District of Iowa - Des Moines.

For United States of America, Plaintiff - Appellee: Andrew H. Kahl, Assistant U.S. Attorney, Maureen McGuire, Assistant U.S. Attorney, Debra L. Scorpiniti, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA.

John Paul Bowers, Defendant - Appellant, Pro se, Terre Haute, IN.

For John Paul Bowers, Defendant - Appellant: Bernard John Burns, III, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Southern District of Iowa, Des Moines, IA.

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

OPINION

Page 1183

WOLLMAN, Circuit Judge.

John Paul Bowers pleaded guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). The district court[1] sentenced him to 110 months' imprisonment. Bowers appeals his sentence, and we affirm.

After Bowers pleaded guilty, the United States Probation Office prepared a presentence investigation report (PSR) wherein it calculated Bowers's advisory sentencing range under the United States Sentencing Guidelines (U.S.S.G.). The PSR determined his base offense level to be 24 and recommended that the offense level be increased by two levels because the firearm was stolen, see U.S.S.G. § 2K2.1(b)(4)(A), and by four levels because the firearm was used or possessed in connection with another felony offense, see U.S.S.G. § 2K2.1(b)(6)(B). After decreasing the offense level by three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, the PSR determined that Bowers's total offense level was 27. With a criminal history category of VI, the PSR concluded that Bowers's advisory sentencing range was 130 to 162 months' imprisonment. His statutory maximum term of imprisonment was 120 months' imprisonment. See 18 U.S.C. § 924(a)(2).

Bowers objected to the two enhancements, arguing that the evidence did not establish that the firearm was stolen or that he had possessed the firearm in connection with another felony offense. In its sentencing memorandum, the government informed the court that neither enhancement should apply. With respect to the

Page 1184

two-level enhancement for possessing a stolen firearm, the government determined that the enhancement did not apply. With respect to the four-level enhancement for possessing the firearm in connection with another felony offense, the government informed the court that its witnesses were unavailable and that the government thus could not present evidence to support the enhancement. The government agreed with Bowers that his total offense level should be 21 and that his advisory sentencing range should be 77 to 96 months' imprisonment.

Bowers did not object to the factual allegations set forth in paragraphs 10, 12, and 13 of the PSR prior to the sentencing hearing. Those paragraphs provided factual support for the four-level enhancement. At sentencing, Bowers objected to those paragraphs, arguing that they were not supported by the evidence. The district court pressed counsel for his reason for the objection, saying, " [T]he defendant also doesn't get acceptance of responsibility if he's falsely denying and frivolously contesting relevant conduct." Ultimately, defense counsel decided to withdraw the objections, saying, " I'm going to withdraw everything I said about objecting to paragraphs 10, 11, 12 and 13[.]" Bowers maintained his objections to paragraphs 19 and 20, which applied the two enhancements and increased his base offense level by six. The district court then applied the four-level enhancement. It relied on the factual summary from the PSR to find that the firearm was possessed in connection with another felony offense. The district court granted the three-level reduction for acceptance of responsibility and did not apply the two-level enhancement for possessing a stolen firearm. The district ...


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