                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                 Nos. 11-2801/2802
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Missouri.
Keith Dwayne Moore,                   *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: March 12, 2012
                                  Filed: July 9, 2012
                                  ___________

Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

        Keith Dwayne Moore appeals from his sentence of 264 months' imprisonment
for his convictions for attempting to manufacture methamphetamine, being a felon
in possession of a firearm, and attempting to escape from a correctional institution.
Moore alleges procedural error in the district court's calculation of the offense level,
its refusal to award Moore a one-point reduction of his offense level for timely notice
of an intent to plead guilty, and its lack of Federal Rule of Criminal Procedure 32(h)
notice before imposing the sentence. We find no error on these issues. However, we
remand to the district court for an explanation of the reasons for the two-month
upward variance from the Guidelines range of 210–262 months' imprisonment.
                                           I

       On December 3, 2010, a Missouri State Highway Patrol Trooper pulled Moore
over for a traffic violation. Moore initially reduced the speed of his car, but then
accelerated and drove away from the trooper. After a short while, Moore abandoned
his car and continued to flee from the trooper on foot, during which the trooper saw
a blue object in Moore's hands. The trooper eventually subdued and arrested Moore,
and upon a search, found the blue object to be a box that contained a Smith and
Wesson Model .22-caliber semi-automatic pistol, two loaded magazines, and a box
of ammunition. The trooper also found materials in Moore's car sufficient to
manufacture two grams of methamphetamine.

        Moore was subsequently indicted in the Eastern District of Missouri for one
count of attempting to manufacture methamphetamine and one count of being a felon
in possession of a firearm. While these proceedings were pending, Moore was
housed in Cape Girardeau County Jail in Missouri. During his incarceration, Moore
attempted to escape by dying his jail uniform, loosening bolts from a shower curtain
rod, and using the rod with a blanket in an attempt to remove a window bar. Moore
did not succeed in bending the window bar but did cause some damage to the jail
facilities. Following the escape attempt, Moore was indicted for attempting to escape
from custody, a charge to which he initially pleaded not guilty. However, on May 2,
2011, two weeks before the scheduled trial date, Moore notified the district court that
he would waive his right to a trial and plead guilty on all three charges.

      At a subsequent sentencing hearing, the district court determined that an
offense level of 32 and a criminal history category of VI applied. The Guidelines
sentencing range was therefore 210–262 months' imprisonment. The offense level
was based on United States Sentencing Guidelines § 4B1.4(b)(3), which imposes an
offense level of 34 for armed career criminals who "used or possessed the firearm or
ammunition in connection with . . . a controlled substance offense." The district court

                                          -2-
then granted Moore a two-level reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1(a), which resulted in the final offense level of 32. It did not grant
a further one-level reduction under § 3E1.1(b) for timely notification of a guilty plea
because the government did not move for such a reduction. Moore's criminal history
category of VI was based on his status as an armed career criminal under 18 U.S.C.
§ 924(e)(1) and U.S.S.G. § 4B1.4(a)(3), which applies that label and category when
a defendant has three or more previous convictions for a violent felony, a serious drug
offense, or both. Moore met this definition based on a series of convictions over
many years, including several for burglary and assault.

      The district court sentenced Moore to 264 months' imprisonment. This
sentence comprised 240 months' imprisonment for the charges of attempting to
manufacture methamphetamine and being a felon in possession of a firearm, plus a
60-month term of imprisonment for attempting to escape from custody, 24 months of
which was to run consecutively to the 240-month term. However, in imposing this
264-month sentence, the court noted: "I believe that a sentence within the Guideline
range of 210 to 262 months would be sufficient but not greater than necessary to
achieve the goals of the federal sentencing laws."

                                           II

                                           A

       Moore argues first that the district court erred in applying a base offense level
of 34 because its conclusion that he possessed a firearm in connection with a
controlled substance offense was incorrect. Moore asserts that he carried materials
sufficient only to manufacture a "small personal use amount of methamphetamine"
and that the district court should therefore have held the government to a higher
standard of proof for showing the gun was used in connection with the controlled
substance offense. This Court reviews a district court's interpretation of sentencing

                                          -3-
guidelines, as a pure legal question, de novo, United States v. Howard, 413 F.3d 861,
865 (8th Cir. 2005), and its finding of facts for clear error, United States v. Annis,
446 F.3d 852, 855 (8th Cir. 2006).

       Under U.S.S.G. § 4B1.4(b)(3)(A), a base offense level of 34 applies if "the
defendant used or possessed the firearm or ammunition in connection with . . . a
controlled substance offense, as defined in § 4B.2(b)." Moore is correct that this
Court has applied different definitions for the term "in connection with" in situations
where the defendant possessed the controlled substance at home for his own personal
use rather than in situations where the defendant carried a controlled substance into
the public or possessed an amount indicating an intention to distribute. Where the
defendant held only a small amount of drugs for personal use, the standard for
showing a connection is more stringent: the government must prove "at a minimum,
the firearm had a purpose or effect with respect to the other felony offense because
its presence facilitated or had the potential to facilitate the offense, as opposed to
being the result of mere accident or coincidence." United States v. Dalton, 557 F.3d
586, 589 (8th Cir. 2009) (internal marks omitted). However,

      when a drug user chooses to carry his illegal drugs out into public with
      a firearm, there are many ways in which the weapon can facilitate the
      drug offense and dangerously embolden the offender. Thus a finding of
      the requisite connection in this situation is consistent with the purpose
      of § 2K2.1(b)(5) [and § 4B1.4(b)(3)(a)] and cannot be clearly erroneous
      except, perhaps, in the exceptional circumstance recognized in
      Application Note 3 to § 2D1.1—if "it is clearly improbable that the
      weapon was connected with the offense."

United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997); see also Howard, 413
F.3d at 865 ("In connection with" has the same meaning in U.S.S.G.
§§ 4B1.4(b)(3)(a) and 2K2.1(b)(5).).



                                          -4-
       Even assuming that Moore possessed the methamphetamine manufacturing
materials solely for his personal use, the district court did not err in determining the
firearm was connected to the controlled substance offense. Moore chose to carry his
illegal drugs into the public while possessing a firearm, and it was not clearly
improbable that the weapon was connected with the offense. Further, the district
court actually applied the higher evidentiary standard for which Moore argues,
finding that the gun facilitated this controlled substance offense:

             The circumstances that are based on the facts that the parties have
      stipulated I believe reasonably lead to the conclusion that Mr. Moore did
      possess the firearm and the ammunition in connection with the drug
      crime. The firearm and ammunition were connected to the crime if for
      no other reason that they would have or could have facilitated Mr.
      Moore's escape from the officer, if he had chosen to use the firearm.

            Clearly, it was readily accessible to him. All he had to do was
      open the box and take it out. And, as I said before, the fact that he took
      the box from the car when he fled, suggests the firearm had some value
      to him and some potential use in facilitating his drug trafficking activity.

This factual finding was not clearly erroneous, and the district court did not commit
procedural error in assigning Moore a base offense level of 34.

                                           B

       Moore next argues that the district court erred in refusing to deduct a third
point from his offense level for "timely notifying authorities of his intention to enter
a plea of guilty." See U.S.S.G. § 3E1.1(b). "We will not disturb a district court's
decision to deny or grant a credit for acceptance of responsibility unless that decision
is clearly erroneous. As with other findings of fact, the district court is in a unique
position to evaluate a defendant's acceptance of responsibility." United States v.
Searcy, 233 F.3d 1096, 1102 (8th Cir. 2000) (internal citations omitted).

                                          -5-
       Under U.S.S.G. § 3E1.1(b), the government may move to reduce a defendant's
offense level by an additional point for acceptance of responsibility if the defendant's
notification of an intent to plead guilty is sufficiently timely to permit "the
government to avoid preparing for trial and . . . the government and the court to
allocate their resources efficiently." The comments clarify that generally, the notice
of a defendant's intention to plead guilty "will occur particularly early in a case."
U.S.S.G. § 3E1.1(b), cmt. n. 6. This is to effectuate the purposes of the Guideline by
allowing "the government [to] avoid preparing for trial and the court [to] schedule its
calendar efficiently." Id.

       Moreover, the commentary states that "[b]ecause the Government is in the best
position to determine whether the defendant has assisted authorities in a manner that
avoids preparing for trial, an adjustment under subsection (b) may only be granted
upon a formal motion by the Government at the time of sentencing." Id. Our cases
show that the government's refusal to file a § 3E1.1(b) motion "must be rationally
related to a legitimate governmental end, and the district court's failure to grant a
§3E1.1(b) reduction must not be clear error." United States v. Smith, 422 F.3d 715,
726 (8th Cir. 2005) (internal citations omitted).

       Here, Moore filed his intention to plead guilty on May 2, 2011, two weeks
before his trial was scheduled to begin, and about three months after his initial
indictment. The government was not irrational and the district court did not commit
clear error in determining that the timing of Moore's notice of intention to plead
guilty did not permit the government and court to allocate its resources efficiently.
There was no procedural error in the court's refusal to award this point.




                                          -6-
                                           C

      Moore's third challenge is that the district court erred by failing to give advance
notice of its intent to impose an upward departure. Under Federal Rule of Criminal
Procedure 32(h),

      Before the court may depart from the applicable sentencing range on a
      ground not identified for departure either in the presentence report or in
      a party's prehearing submission, the court must give the parties
      reasonable notice that it is contemplating such a departure. The notice
      must specify any ground on which the court is contemplating a
      departure.

However, Rule 32(h) applies only to departures and not to variances. United States
v. Foy, 617 F.3d 1029, 1035 (8th Cir. 2010). When a district court imposes a
variance, Rule 32(h) does not require advance notice. Id.

       Here, the district court imposed a variance rather than a departure. Because,
as the district court correctly observed, there was no "reason for a departure based on
any provision of the Sentencing Guidelines," any deviation from the Guidelines range
instead represented a variance. Therefore, the fact that the court did not provide
advance notice was not error.

                                           D

      Moore's final argument is that the 264-month sentence is substantively
unreasonable. Before we reach that issue, however, we note that the district court
imposed a sentence of 264 months' imprisonment on Moore, which is two months in
excess of the upper end of the Guidelines range. When a district court imposes a
variance, it "must consider the extent of the deviation and ensure that the justification



                                          -7-
is sufficiently compelling to support the degree of the variance." United States v.
Richart, 662 F.3d 1037, 1053 (8th Cir. 2011) (internal quotation marks omitted).

       Here, however, the district court did not acknowledge that its sentence
exceeded the Guidelines range. Rather, it concluded, "I believe a sentence within the
Guideline range of 210 to 262 months would be sufficient but not greater than
necessary to achieve the goals of the federal sentencing laws." Because the district
court did not explain why it varied from the Guidelines range, or even note that such
a variance occurred, we are uncertain as to whether the district court misspoke and
intended to impose a 262-month sentence or whether it did intend to vary upward by
two months. Accordingly, we remand for further explanation, and we do not reach
the final issue of this appeal, whether the sentence the district court imposed was
substantively reasonable.

                       ______________________________




                                         -8-
