                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3350
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                Leonard Dwayne Hill

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                  ____________

                              Submitted: June 16, 2016
                               Filed: August 29, 2016
                                   ____________

Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.
                           ____________

BRIGHT, Circuit Judge.

       A jury convicted appellant-defendant Leonard Hill of being a felon in
possession of ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). On appeal,
Hill challenges his conviction and the district court's1 denial of his renewed motion

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
for acquittal. Hill argues: (1) the government constructively amended the indictment;
(2) the government failed to establish the ammunition was in or affecting interstate
commerce; and (3) the de minimis connection to interstate commerce is insufficient
to satisfy the Commerce Clause. We affirm the district court.

                                          I.

       In the early morning hours of July 10, 2014, St. Paul police responded to
reports of gunfire outside of Willard's Bar in St. Paul, Minnesota. While police
investigated the area, they arrested and frisked Hill. As a result of the frisk, police
seized twenty-three rounds of Federal brand 9-millimeter Luger ammunition from
Hill.

       A grand jury indicted Hill on August 18, 2014, charging him with one count
of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g) and
924(e). Specifically the indictment stated that Hill “did knowingly possess, in and
affecting interstate and foreign commerce, ammunition, as defined by Title 18, United
States Code, Section 921(17)(A), that is, 23 live rounds of Federal brand 9-millimeter
Luger ammunition, in violation of Title 18, United States Code, Sections 922(g)(1)
and 924(e)(1).”

       Hill pled guilty on September 26, 2014. Two months later, however, he moved
to withdraw his plea. The district court granted Hill's motion and he proceeded to
trial. Before trial, Hill stipulated that he knowingly possessed ammunition and was
a convicted felon. Therefore, the only remaining issue at trial was whether Hill's
possession of the ammunition was in or affecting interstate commerce.

     At trial, the government presented expert testimony from Steve Rodgers, the
product safety manager and fifteen-year employee for Vista Outdoor, the parent
company of Federal Cartridge Ammunition. In his examination of the ammunition,

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Rodgers randomly disassembled two of the twenty-three rounds seized from Hill and
separated them into the four major components that form a round of ammunition: (1)
the primer, (2) the case, (3) the propellent powder, and (4) the bullet. Rodgers dated
the ammunition as being no older than 2011 and after discussing the manufacturing
origin of each component, Rodgers determined that three out of the four components–
including the primer, case, and bullet–were all manufactured by Federal Cartridge in
Minnesota.

       Rodgers concluded that the propellent powder was manufactured outside of
Minnesota. To justify his conclusion, Rodgers testified that Federal Cartridge does
not manufacture its own propellent powder but instead purchases 95% of it from two
domestic sources–located in St. Marks, Florida, or Radford, Virginia–and the
remaining 5% from international sources. Further, Rodgers opined that the propellent
powder from the two rounds of ammunition he disassembled derived from St. Marks,
Florida, specifically because he recognized the propellent powder was “ball powder,”
which is a unique manufacturing process specific to Federal Cartridge's supplier in
St. Marks. Finally Rodgers testified that the remaining twenty-one rounds were
identical to the two rounds he had randomly disassembled and therefore his testimony
applied to those rounds as well.

      At the close of the government's case, Hill moved for a judgment of acquittal
which the district judge denied. The jury returned a guilty verdict. On August 13,
2015, Hill filed a renewed motion for judgment of acquittal, which the district court
again denied. On October 15, 2015, the district court sentenced Hill to 192-months'
imprisonment. Hill timely filed this appeal.

                                         II.

      Hill makes three arguments on appeal. He first argues the government
constructively amended the indictment by presenting evidence at trial of how the

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individual components of ammunition were in or affecting interstate commerce rather
than the ammunition as a whole. Second, the district court should have granted Hill's
motion for acquittal because the government failed to establish the propellent powder
component was manufactured outside of Minnesota at the time Federal Cartridge
manufactured the ammunition seized from Hill–which is anywhere between 2011 and
the date law enforcement seized the ammunition from Hill. Lastly, even if the
propellent powder was in or affecting interstate commerce, this de minimis
connection to interstate commerce is insufficient to satisfy the Commerce Clause.

                                          A.

      We review de novo whether a constructive amendment to the indictment
occurred. United States v. Renner, 648 F.3d 680, 686 (8th Cir. 2011). Hill argues the
government created a fatal constructive amendment to the indictment because it listed
ammunition as a whole as being in or affecting interstate commerce instead of the
individual components, which is what the government presented evidence on at trial.
We disagree.

      “A constructive amendment occurs when the essential elements of the offense
as charged in the indictment are altered in such a manner–often through the evidence
presented at trial or the jury instructions–that the jury is allowed to convict the
defendant of an offense different from or in addition to the offenses charged in the
indictment.” United States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (quoting
United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir. 2007)). In evaluating
a constructive amendment claim, this court “consider[s] whether the admission of
evidence or the jury instructions created a ‘substantial likelihood’ that the defendant
was convicted of an uncharged offense.” Id.

      The government did not create a fatal constructive amendment to the
indictment because the ammunition components were necessarily included in the

                                         -4-
indictment by statutory definition of the term ammunition. The indictment provides
that Hill knowingly possessed ammunition “as defined by Title 18, United States
Code, Section 921(17)(A)[.]” Under 18 U.S.C. § 921(17)(A), ammunition is defined
as “ammunition or cartridge cases, primers, bullets, or propellent powder designed
for use in any firearm.” Accordingly, the evidence presented at trial did not create a
“substantial likelihood” that Hill was convicted of an uncharged offense because the
individual components of ammunition were necessarily included in the indictment
language. The government therefore did not constructively amend the indictment.

                                          B.

       “This court reviews de novo the district court's denial of a motion for acquittal
based on insufficiency of the evidence.” United States v. Gant, 721 F.3d 505, 510
(8th Cir. 2013) (quoting United States v. Tyerman, 701 F.3d 552, 564 (8th Cir.
2012)). “On review, evidence is viewed most favorably to the verdict, giving it the
benefit of all reasonable inferences. Reversal is appropriate only where no reasonable
jury could find all the elements beyond a reasonable doubt.” Id. (quoting United
States v. Aldridge, 664 F.3d 705, 715 (8th Cir. 2011)).

      Hill argues there was insufficient evidence to establish the propellent powder
was manufactured outside of Minnesota between 2011 and the date of his arrest and
therefore the government failed to prove the ammunition was in or affecting interstate
commerce. We disagree.

       Based on Rodgers's expert testimony, a reasonable jury could find beyond a
reasonable doubt that Federal Cartridge used propellent powder manufactured outside
of Minnesota at the time it produced the ammunition seized from Hill. Rodgers–a
fifteen-year employee and trained expert in identifying Federal Cartridge
products–testified that Federal Cartridge does not manufacture any of its own
propellant powder but rather it is “[a]ll purchased” outside the state of Minnesota.

                                          -5-
(Trial Tr. p. 156). Not only did Rodgers conclude the propellent powder was
manufactured outside of Minnesota, but he was able to identify the specific supplier
for the ammunition seized from Hill because he recognized it as “ball powder” unique
to St. Marks, Florida. In viewing all reasonable inferences in favor of the verdict, we
find a reasonable jury could find that Federal Cartridge used propellent powder
manufactured outside of Minnesota in its production of the ammunition seized from
Hill. Accordingly, the government established the ammunition seized from Hill was
in or affecting interstate commerce.

                                          C.

       “This court reviews federal constitutional questions de novo.” United States
v. Nash, 627 F.3d 693, 696 (8th Cir. 2013). Hill argues that even if the propellent
powder traveled interstate, the de minimis connection to interstate commerce is
insufficient to satisfy the Commerce Clause. Hill's argument is foreclosed by binding
precedent.

       In United States v. Mosby, the defendant was a convicted felon charged with
being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g) for
possessing assembled cartridges manufactured in Minnesota but which were
comprised of components manufactured out-of-state. 60 F.3d 454, 457 (8th Cir.
1995). We held that ammunition assembled from components which had traveled in
interstate commerce was in commerce for purposes of 18 U.S.C. § 922(g)(1) even
though the ammunition itself had been assembled intrastate. Id. The facts of this case
are analogous to Mosby and we are bound by our holding in that case. Therefore, the
propellent powder component manufactured in interstate commerce is sufficient to
satisfy the Commerce Clause.




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                                  III.

For the foregoing reasons, we affirm the district court.
                ______________________________




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