                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3855
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Shawn Gant

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa, Waterloo
                                 ____________

                             Submitted: June 13, 2013
                               Filed: July 18, 2013
                                 ____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
                        ____________

BENTON, Circuit Judge.

      A jury convicted Shawn Patrick Gant on three counts of arson, in violation of
18 U.S.C. § 844(i). The district court1 sentenced him to concurrent 240-month terms
of imprisonment on each count, consecutive to an existing 10-year federal sentence.

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
See United States v. Gant, 663 F.3d 1023, 1025 (8th Cir. 2011). He appeals,
attacking (1) the admission of prior-acts evidence, (2) the sufficiency of the evidence,
and (3) the reasonableness of the sentence. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

                                           I.

       The indictment charged Gant with setting three fires. The first was in July
2009. He was living in the “computer room” of his girlfriend’s sister’s house. The
sister hosted a pool party. Gant and his girlfriend attended. They drank heavily and
bickered. Everyone was outside, around the pool. Around 7:30 p.m., Gant went
inside. About 30 minutes later, he came out and asked, “Do you smell that?” No one
smelled anything except a citronella candle. The sister and her boyfriend then went
inside, finding the house on fire. Gant had been the last person in the house. He left,
going to a coworker’s home. There, Gant fluctuated between agitation and
excitement. He returned to the fire, twice asking a firefighter about the cause. The
fire marshal determined the fire started in the computer room and was not accidental,
but the cause was “undetermined.”

       The second fire was at Gant’s ex-girlfriend’s house in October 2009. She and
several children (including one of Gant’s) were home when a fire erupted in the
kitchen. Everyone escaped. That night, Gant told a friend that he “heard from a little
birdie” about the fire. The next day, Gant told her “no one was supposed to be home
and it wasn’t supposed to happen that way.” He also said that “[n]obody was
supposed to get hurt,” and that his ex-girlfriend deserved the fire “for breaking [his]
heart.” (In 2008, he had tried to break into her previous house.) An investigator
determined the fire started near or in a toaster. The cause was “undetermined.”




                                          -2-
       A year and a half later, Gant wrote a letter to the friend:

       They investigated a lot of fires that I wasn’t involved with, taking
       attention away from the ones I was involved with . . . . I’m going to get
       away with a couple of incidents. They still haven’t figured out the truth
       [about my ex-girlfriend’s]. Anyone can sneak into a house and rewire
       outlets and appliances.

       The third fire was in May 2010 at Gant’s apartment, which was in a mall with
businesses on the lower level. He always locked his apartment door and had the only
key. His landlord had recently given an eviction notice for late rent. Gant was
drinking at a bar one-and-a-half blocks from his apartment building. He left for his
apartment between 9:45 and 10:00 p.m. Right before 10:00 p.m., the tenant across
the hall heard someone open the front door to the building and enter Gant’s
apartment. That person quickly left Gant’s apartment, locked the door, and exited the
building. Gant returned to the nearby bar between 10:00 and 10:10 pm. Before 10:30
p.m., he went to another local bar. When asked why he looked upset, Gant – who was
drunk – replied, “[My] apartment [is] on fire and [I have] an alibi.”

       Tenants of the building found Gant’s apartment on fire. They gathered outside
the building. Gant was not there. A firefighter suffered injuries searching for tenants
– including Gant – in the burning building (which was destroyed). Investigators
determined the fire started in a plastic bucket in Gant’s apartment. They labeled the
cause of the fire “undetermined,” because they could not eliminate cigarette butts as
an accidental cause.

       Before trial, the government moved to admit evidence that Gant intentionally
set numerous other fires (eventually focusing on 17 prior fires). Over his objection
to exclude all prior-acts evidence, the district court limited evidence to four prior fires
and several statements, including his admission to setting grass fires. The first prior
fire was in 2001, when he set fire to his duplex apartment. The second, in June 2002,

                                           -3-
he started near a coffee maker in the break room of his workplace. Questioned about
these fires, he admitted to a third — burning his car in January 2002. He pled guilty
to two counts of arson for the duplex and workplace fires. The fourth fire was in
2004, after his release from prison, when he set fire to his apartment. His roommate
suffered inhalation and burn injuries. Gant pled guilty to reckless use of fire.

       Evidence at trial included the prior-acts evidence, Gant’s statements about
setting fires, and his admission to starting fires when under stress or drinking
excessively. Three former inmates testified he got “[k]ind of excited” when
discussing the fires he started. One testified that Gant talked about setting a fire after
drinking in a bar, and returning to the bar afterward. Another testified that Gant
admitted to starting the May 2010 fire by placing a lit cigarette in braided toilet paper.
Additional witnesses linked him to the three charged fires. The jury convicted on all
three counts.

      Gant’s advisory range was 130 to 162 months. (The statutory maximum
sentence was 80 years.) The district court departed upward to 240 months based on
U.S.S.G. § 5K2.0(a)(3). Alternatively, the district court deemed the sentence a
variance under 18 U.S.C. § 3553(a).

                                           II.

       Gant argues the district court erred under Federal Rule of Evidence 404(b) in
admitting his convictions for four prior fires and his statements about setting other
fires. “This court reviews for clear abuse of discretion a district court’s evidentiary
rulings.” United States v. Lindsey, 702 F.3d 1092, 1097 (8th Cir. 2013). This court
reverses “only when the evidence clearly had no bearing on the case and was
introduced solely to show defendant’s propensity to engage in criminal misconduct.”
United States v. Farish, 535 F.3d 815, 819 (8th Cir. 2008).



                                           -4-
      “Prior-acts evidence ‘may be admissible for another purpose [other than
propensity], such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.’” United States v.
Tyerman, 701 F.3d 552, 562 (8th Cir. 2012) (alteration in original), quoting Fed. R.
Evid. 404(b)(2). “To be admissible under 404(b), evidence must be (1) relevant to
a material issue; (2) similar in kind and not overly remote in time to the crime
charged; (3) supported by sufficient evidence; and (4) higher in probative value than
prejudicial effect.” Id. (Gant does not challenge the district court’s finding that
sufficient evidence supports the prior acts.)

       Here, the evidence shows (at least) intent and lack of accident. Under the first
factor, Gant claims that his prior acts of arson, and admissions to them, are irrelevant
to proving the charged fires were arson. Not so. “Relevance of evidence is
established by any showing, however slight, that the evidence makes it more or less
likely that the defendant committed the crime in question.” United States v. Mora,
81 F.3d 781, 783 (8th Cir. 1996). Evidence that he twice set fire to his own
residence, burned his own car, started a fire near an appliance at his workplace, and
admitted to starting fires helps show that he intended to start the charged fires, and
they were no accident. See Westfield Ins. Co. v. Harris, 134 F.3d 608, 614-15 (4th
Cir. 1998) (“[W]here prior acts of apparent coincidence are similar, the repeated
reoccurrence of such an act takes on increasing relevance to support the proposition
that there is an absence of accident.” (citation omitted)); cf. United States v. Cook,
454 F.3d 938, 941 (8th Cir. 2006) (explaining this court has “frequently upheld the
admission of prior drug convictions” to show intent when a defendant denies
committing a drug offense); United States v. Hermes, 847 F.2d 493, 497 (8th Cir.
1988) (holding admission to prior arson scheme relevant to show intent to commit the
charged arson).

       Under the second factor, Gant does not contest that the prior acts are similar
to the present arson offenses, but believes they are too remote. The oldest was in

                                          -5-
2001 — not too remote for 404(b) evidence. See United States v. Yielding, 657 F.3d
688, 702 (8th Cir. 2011) (“This court has upheld the introduction under Rule 404(b)
of fifteen-year-old convictions that were similar to the crime charged.”).

      Under the fourth factor, Gant contends the evidence is more prejudicial than
probative. See Fed. R. Evid. 404(b)(2); see also Fed. R. Evid. 403. “Damaging
evidence is always prejudicial; the question is whether the evidence is unfairly
prejudicial.” Tyerman, 701 F.3d at 563, citing Fed. R. Evid. 403. The district court
found that admitting all the prior-acts evidence the government requested would have
been “highly prejudicial.” It therefore restricted evidence to four prior acts and
several statements. The court determined this restriction adequately limited any
prejudice. “This court gives great deference to the district court’s weighing of the
probative value of evidence against its prejudicial effect.” Id.

     Gant further contends that the government used the evidence in closing
argument purely to show his propensity to commit arson. The government argued:

            [W]hen you are looking at whether these were intentionally set or
      were accidental, you can consider the defendant’s prior convictions.
      The prior convictions were, he was convicted of arson twice in Decorah.

            You can consider his admissions that he set the fire on January 24,
      2004, in Oelwein. You can consider those intentionally set fires in
      looking at whether these were accidental. What are the odds the
      defendant intentionally sets four other fires?

            ...

             Again, when you are looking at whether the defendant
      intentionally did these or whether these are accidental, you can look at
      his past history, and you consider if he intentionally set those. And he


                                         -6-
      admitted he intentionally set those. Then what are the odds that these
      are all accidental?

             Your commonsense tells you the defendant committed all these.

       These remarks attempted to show – and were relevant to whether – the charged
fires were not accidental. The remarks were not improper. Cf. United States v.
Brown, 702 F.3d 1060, 1065 (8th Cir. 2013) (“[I]t [was] not . . . improper [in closing
argument] for the Government to suggest that [the defendant’s] prior [offenses] shed
light on his modus operandi [in the charged offense].” (citation omitted)). The
district court did not abuse its discretion by admitting the prior-acts evidence.

                                          III.

       Gant contests the sufficiency of the evidence. “This court reviews de novo the
district court’s denial of a motion for acquittal based on insufficiency of the
evidence.” Tyerman, 701 F.3d at 564. “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.” United States v. Aldridge, 664 F.3d 705, 715 (8th Cir. 2011); see
United States v. Pizano, 421 F.3d 707, 719 (8th Cir. 2005) (“The standard for
reviewing a claim of insufficient evidence is strict, and a jury’s guilty verdict should
not be overturned lightly.”).

        Gant asserts that “the evidence in its totality did not rise above conjecture or
speculation.” See United States v. Diggs, 527 F.2d 509, 513 (8th Cir. 1975) (“[A]
jury is not justified in convicting a defendant on the basis of mere suspicion,
speculation or conjecture.”). To the contrary, the evidence showed he was at or near
the July 2009 and May 2010 fires before they erupted. Relevant to the October 2009
fire, a witness testified to Gant’s animosity toward his ex-girlfriend. The jury heard
his admission to starting fires when under stress or drinking excessively. Several

                                          -7-
witnesses testified to Gant admitting to, or implicating himself in, setting the charged
fires. He attacks the witnesses’ credibility. This court does “not weigh the evidence
or assess the credibility of the witnesses. The jury has the responsibility of resolving
conflicts or contradictions in testimony, and [this court] resolve[s] any credibility
issues in favor of the verdict.” United States v. Johnson, 688 F.3d 494, 502 (8th Cir.
2012). The totality of the evidence supports the verdict. See United States v. Davis,
534 F.3d 903, 911-912 (8th Cir. 2008) (affirming the conviction over an insufficiency
claim where evidence included the defendant’s animosity toward a victim, his close
proximity to the fire, providing false information to the police, and making
incriminating statements).

                                           IV.

       According to Gant, the district court abused its discretion at sentencing by
departing – or varying – upward. This court reviews the reasonableness of a sentence
“whether inside or outside the Guidelines range” for abuse of discretion. United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “In reviewing a
defendant’s sentence, [this court] first ensure[s] that the district court did not commit
significant procedural error; then, absent significant procedural error, [this court]
review[s] the sentence for substantive reasonableness.” United States v. Richart, 662
F.3d 1037, 1045 (8th Cir. 2011). Gant asserts no procedural error. On substantive
review, a district court abuses its discretion when it “fails to consider a relevant factor
that should have received significant weight; gives significant weight to an improper
or irrelevant factor; or considers only the appropriate factors but [in weighing those
factors] commits a clear error of judgment.” Id. at 1051.

      The district court sentenced Gant to 240 months. It departed upward 78
months under U.S.S.G. § 5K2.0(a)(3) — circumstances inadequately considered.
Under that section, a court may depart upward “if the court determines that [the
circumstance that forms the basis for the departure] is present in the offense to a

                                           -8-
degree substantially in excess of . . . that which ordinarily is involved in that kind of
offense.” U.S.S.G. § 5K2.0(a)(3); see United States v. Hawkman, 438 F.3d 879,
882-83 (8th Cir. 2006) (upholding an upward departure under § 5K2.0(a)(3) where
there was a “discrepancy between the [victim’s] injuries . . . and those in a typical
case of assault with a dangerous weapon”).

       Gant believes that the sentence “over-punished” him. The court found the
advisory range does not reflect the serious impact of the fires on the victims,
including property loss, emotional distress, and substantial risk of injury or death.
Specifically, it noted that Gant knew “all of the structures were occupied” when he
set the fires. Children (including one of his own) were in the house during the
October 2009 fire. The May 2010 fire endangered the lives, and destroyed the
property, of all the building’s tenants. The district court did not abuse its discretion
in departing under § 5K2.0(a)(3).

       Alternatively, the court considered the sentence an upward variance under §
3553(a). Gant claims the sentence is unreasonable because it is consecutive to an
existing 10-year federal sentence, and the district court insufficiently addressed his
mental health. The court determined his danger to society and recidivism risk merited
a consecutive sentence. This determination was not unreasonable. See United States
v. Lee, 545 F.3d 678, 681 (8th Cir. 2008) (per curiam) (upholding a consecutive
sentence where the district court “determined that [the defendant’s] offenses were
‘serious[,]’ and [the court] explained the nature of [his] conduct”). The district court
noted his mental health issues, and within its discretion, weighed other factors more
heavily. United States v. Ford, 705 F.3d 387, 389 (8th Cir. 2013); accord Gant, 663
F.3d at 1032 (“A district court does not impose a substantively unreasonable sentence
merely because the district court attributes less weight to a defendant’s personal
problems.”). The court found the guidelines fail to account for Gant being a “serial
arsonist.” It noted that he is “extremely dangerous to the community,” and retaliates
against “those who upset him.” Moreover, the court explained, his criminal history

                                          -9-
has myriad unscored criminal conduct. Because the district court adequately
considered the sentencing factors under § 3553(a), the sentence was a reasonable
upward variance. See Gant, 663 F.3d at 1032 (upholding a variance where “review
of the record show[ed] that the district court considered Gant’s nature and history, the
seriousness of the offense, his criminal history, the danger and threat he posed to the
public, and the need for punishment and deterrence.”).

                                     *******

      The judgment of the district court is affirmed.
                     ______________________________




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