                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-1680
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Dexter Curruth,                          *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: March 14, 2011
                                 Filed: August 5, 2011
                                  ___________

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

PER CURIAM.

       Dexter Curruth pleaded guilty to possessing with the intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to 51
months' imprisonment on each count, to run concurrently. On appeal, Curruth argues
that the district court procedurally erred at sentencing by applying the base offense
level provided by U.S.S.G. § 2K2.1(a)(3). For the following reasons, we affirm.



      1
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
                                     I. Background
      Curruth pleaded guilty to one count of possessing with the intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Prior to sentencing, the
presentence investigation report (PSR) noted that Curruth purchased a .223-caliber
semiautomatic rifle and a 30-round magazine for the rifle on December 31, 2008.
Thus, the PSR determined that Curruth should have a base offense level of 22 for an
offense involving a semiautomatic firearm capable of accepting a large-capacity
magazine, pursuant to U.S.S.G. § 2K2.1(a)(3)(A)(i). The PSR calculated a total
offense level of 24 and a criminal history category of II, yielding an advisory
Guidelines range of 57 to 71 months' imprisonment.

      Curruth objected to the PSR's base offense level of 22. Curruth based his
objection on the absence of the 30-round magazine when police searched his residence
and found the .223-caliber semiautomatic rifle.

        At the sentencing hearing, the government called Agent David Oliver from the
Bureau of Alcohol, Tobacco, Firearms, and Explosives. Agent Oliver testified that he
interviewed Donald Gustavos, who told Agent Oliver that he sold Curruth the .223-
caliber semiautomatic rifle, the owner's manual, a sling, and a 30-round magazine on
December 31, 2008. According to Agent Oliver, Gustavos said that he had placed all
the items in the plastic box provided by the gun manufacturer. Agent Oliver further
testified that Curruth had admitted to firing the .223-caliber semiautomatic rifle at
some point. On cross-examination, Agent Oliver conceded that when he and other
officers searched Curruth's residence on January 13, 2009, they did not find the 30-
round magazine, although they did find the manufacturer's plastic box and the owner's
manual. He stated that the rifle could, "[i]n theory," be fired without the magazine, by
placing a single bullet in the rifle's chamber.




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      Based on the parties' arguments and Agent Oliver's testimony, the district court
overruled Curruth's objection, explaining:

      I'm going to overrule the objection because it's unrefuted in the
      presentence report that Mr. Curruth purchased the magazine and the gun
      for cash, and that it's also undisputed through Mr. Oliver's testimony that
      Mr. Curruth has fired the weapon, and the Court finds more likely than
      not that he used the magazine when he fired the weapon. That doesn't
      mean that he actually did, because it is possible to fire the weapon
      without a magazine, but I think more likely than not, he used the
      magazine because that's usually what's done. People don't usually take
      guns like this and put one bullet in it and fire it and put another bullet in
      and fire it. Usually they use the magazine.

Thus, the court determined that Curruth's base offense level was 22. The court then
applied a four-level enhancement for possessing the firearm in connection with
another felony offense, pursuant to U.S.S.G. § 2K2.1(b)(6). It also granted a three-
level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.2
Therefore, the court determined that Curruth's total offense level was 23, and his
criminal history category was II, yielding an advisory Guidelines range of 51 to 63
months' imprisonment.

      After considering the sentencing factors in 18 U.S.C. § 3553(a), the court
sentenced Curruth to concurrent sentences of 51 months' imprisonment on each count.

                                    II. Discussion
      Curruth argues that the district court procedurally erred by calculating a base
offense level of 22. First, he asserts that the district court based its decision on an
erroneous interpretation of the Guidelines, which call for an increased offense level


      2
        Although the PSR recommended a two-level reduction, the court granted a
third level, pursuant to U.S.S.G. § 3E1.1(b), upon the government's motion.

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if a high-capacity magazine was "in close proximity to the firearm." U.S.S.G. § 2K2.1,
cmt. n.2. Curruth maintains that the district court incorrectly interpreted this to mean
temporal, rather than spatial, proximity. Thus, he argues that the court could only
apply the heightened offense level if the 30-round magazine had been found attached
or in close physical proximity to the .223-caliber semiautomatic rifle during the search
of his residence on January 13, 2009. Second, Curruth contends that the government
failed to prove that the 30-round magazine was ever in close physical proximity to the
.223-caliber semiautomatic rifle. Although Curruth admitted to firing the rifle after
purchasing it, he did not state whether he used the 30-round magazine at that time.
Curruth asserts that the only other evidence showing proximity—Agent Oliver's
testimony about Gustavos's statements—was unreliable hearsay.

       The government argues that the district court correctly determined Curruth's
base offense level pursuant to § 2K2.1(a)(3)(A)(i). First, the government notes that the
court and the government agreed at sentencing that § 2K2.1(a)(3)(A)(i) required
physical proximity between the high-capacity magazine and the firearm. The
government, however, disputes Curruth's assertion that the two items had to be in
proximity at the time his residence was searched on January 13, 2009. Instead, the
government maintains that the court could apply this Guideline solely on the basis that
Curruth possessed both the magazine and the rifle on December 31, 2008—when he
was a convicted felon prohibited from possessing such items. Second, the government
asserts that ample evidence supports the district court's finding that the 30-round
magazine was in close physical proximity to the .223-caliber semiautomatic rifle on
at least two occasions: when Curruth purchased the magazine and rifle from Gustavos
on December 31, 2008, and when Curruth fired the rifle on an unknown date.

       "We review all sentences . . . for an abuse of discretion." United States v.
Rutherford, 599 F.3d 817, 820 (8th Cir. 2010). In the process, "[t]his court reviews the
district court's findings of fact for clear error, and its interpretation and application of
the guidelines de novo." United States v. Ault, 598 F.3d 1039, 1040 (8th Cir. 2010).

                                            -4-
       The Guidelines provide that a person convicted of being a felon in possession
of a firearm should have a base offense level of 22 if "the offense involved a . . .
semiautomatic firearm that is capable of accepting a large capacity magazine."
U.S.S.G. § 2K2.1(a)(3)(A)(i). Application Note 2 to § 2K2.1 defines a "semiautomatic
firearm capable of accepting a large capacity magazine" as:

      a semiautomatic firearm that has the ability to fire many rounds without
      reloading because at the time of the offense (A) the firearm had attached
      to it a magazine or similar device that could accept more than 15 rounds
      of ammunition; or (B) a magazine or similar device that could accept
      more than 15 rounds of ammunition was in close proximity to the
      firearm.

(Emphasis added.) Thus, the Guideline provides for an offense level of 22 if the high-
capacity magazine was in close physical proximity to the firearm capable of accepting
that magazine "at the time of the offense." Nothing in the Guideline requires that the
items be in proximity to one another when they are actually seized by law enforcement
officers. Instead, the relevant inquiry requires determining the time of the defendant's
"offense."

       The Guidelines define an "offense" as "the offense of conviction and all
relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is
specified or is otherwise clear from the context." U.S.S.G. § 1B1.1, cmt. n.1(H)
(emphasis added). In turn, the Guidelines define "relevant conduct" as "all acts and
omissions committed . . . by the defendant . . . that occurred during the commission
of the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense." Id. § 1B1.3(a)(1)
(emphasis added). Nothing in § 2K2.1 would indicate that the word "offense," as used
in the application notes, was intended to mean something different than the definition
provided in the application note to § 1B1.1. Therefore, "the time of the offense," for
purposes of determining whether the base offense level in § 2K2.1(a)(3)(A)(i) should

                                          -5-
apply, includes "relevant conduct," i.e., the defendant's acts taken in preparation for
the offense.

       Using these definitions, Curruth's conduct on December 31, 2008, qualifies as
part of his "offense." The indictment charged him with being a felon in possession of
a firearm (specifically, the .223-caliber semiautomatic rifle) on January 13, 2009. At
the very least, his purchase of the rifle on December 31, 2008, could be considered an
act in preparation for his offense and, thus, relevant conduct for Guidelines purposes.
Therefore, Curruth would be eligible for a base offense level of 22 if the evidence
showed that the 30-round magazine was in proximity to the .223-caliber
semiautomatic rifle on December 31, even if the magazine was not in proximity to the
rifle on January 13 when his residence was searched.

       The undisputed evidence shows that the 30-round magazine was in close
physical proximity to the .223-caliber semiautomatic rifle on December 31, 2008.
Because Curruth never objected to the PSR's factual allegation that he purchased the
magazine and the rifle from Gustavos on that date, the district court could accept it as
true for sentencing purposes. United States v. Azure, 596 F.3d 449, 454 (8th Cir.
2010). Moreover, Agent Oliver testified at the sentencing hearing that Gustavos told
him that he sold Curruth the magazine and rifle and gave them to Curruth in a plastic
box. Although hearsay, the court could rely on Gustavos's statements, especially since
they were corroborated by the fact that officers found, at Curruth's residence, several
of the items that Gustavos had identified. See id. ("The rules of evidence . . . do not
apply in the context of sentencing hearings, and courts may rely on hearsay or other
typically inadmissible evidence if that evidence bears sufficient indicia of
reliability."). Accordingly, the district court did not clearly err in finding that the 30-
round magazine was in proximity to the .223-caliber semiautomatic rifle at the time
of Curruth's offense. Thus, the court properly determined that his base offense level
should be 22.



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                            III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
                ______________________________




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