                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2310
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Northern
                                         * District of Iowa
Paul Melvin Letts,                       *
                                         * [TO BE PUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: January 9, 2001

                                   Filed: August 31, 2001
                                    ___________

Before LOKEN, HEANEY, and BYE, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       Paul Melvin Letts appeals his conviction and sentence for being an illegal user
of controlled substances in possession of a firearm — a violation of 18 U.S.C. §
922(g)(3). Letts challenges his conviction by contending, for the first time on appeal,
that § 922(g)(3) is unconstitutional. Letts challenges his sentence by contending that
the district court1 erred when it found that Letts possessed firearms in connection with


      1
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.
another felony offense, resulting in a four level enhancement under U.S.S.G §
2K2.1(b)(5). Letts also claims he possessed the firearms for lawful sporting purposes
or collection, and that the district court should have reduced his sentence by six levels
under U.S.S.G. § 2K2.1(b)(2). We affirm the conviction and sentence.

                                  BACKGROUND

       In October 1999, law enforcement officers received an anonymous phone tip
indicating that Letts ran a methamphetamine (meth) lab on his farmstead in rural
Winthrop, Iowa. Officers began surveilling the property, in particular two camper
vehicles which allegedly served as the lab. On the second day of surveillance, the
officers stopped Scott Hambly as he drove away from the campers. Hambly reported
that the campers and their contents belonged to Letts, and that Letts allowed others to
manufacture meth at the lab in exchange for some of the completed product. Armed
with this additional information, the officers obtained search warrants for the campers
and other buildings on the farmstead.

      The ensuing search of the Letts garage, residence, campers, and other
outbuildings revealed fifty-five firearms. In the garage, officers found two containers
with user amounts of meth in a desk, other equipment and materials consistent with the
manufacture of meth, and five firearms (two loaded) above the garage door. In the
home, officers found marijuana pipes in Letts's bedroom, as well as a shotgun and a
9mm handgun. Letts had another twenty-seven firearms in a second bedroom, and
seventeen firearms in the dining room. The campers contained equipment and
ingredients used to manufacture meth, but no weapons. Pursuant to another search
warrant, Letts submitted his urine for a drug screen. The sample tested positive for
meth, and amphetamine.

      The government charged Letts under 18 U.S.C. § 922(g)(3), which forbids an
unlawful user of a controlled substance from possessing a firearm that has been shipped

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or transported in interstate commerce. Prior to trial, Letts stipulated that all fifty-five
firearms had been manufactured outside Iowa. A jury convicted Letts after a two-day
trial. At the sentencing hearing, the district court increased Letts's base offense level
of fourteen by six levels pursuant to U.S.S.G. § 2K2.1(b)(1)(F) (for offenses involving
more than 50 weapons), another four levels pursuant to § 2K2.1(b)(5) (for possessing
a firearm in connection with another felony offense), and refused to apply a six level
downward adjustment under § 2K2.1(b)(2) (for firearms possessed solely for sporting
purposes or collection). Letts's criminal history category of II, and adjusted offense
level of twenty-four, resulted in a guideline imprisonment range of 57 to 71 months.
The district court sentenced Letts to 57 months. Letts timely appealed.

                                     DISCUSSION

I.    The Constitutionality of 18 U.S.C. § 922(g)(3).

      We review Letts's constitutional challenges to § 922(g)(3) for plain error,
because he did not make those claims in the district court. See United States v.
Huckaby, 698 F.2d 915, 920 (8th Cir. 1982).

      Relying upon the Supreme Court's decision in United States v. Lopez, 514 U.S.
549 (1995), Letts first contends that § 922(g)(3) exceeds the reach of the Commerce
Clause. In Lopez, the Supreme Court struck down § 922(q)(1)(A), which prohibited
gun possession near a school. The Court held that the activity of possessing a gun near
a school does not "substantially affect" interstate commerce. Id. at 561. Letts argues
that Lopez's analysis extends to § 922(g) as well.

      We have already distinguished Lopez from cases arising under § 922(g):

      Lopez delineates three categories of activity that Congress may regulate
      under its commerce power. First, "Congress may regulate the use of the

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      channels of interstate commerce." Second, Congress may "regulate and
      protect the instrumentalities of interstate commerce, or persons or things
      in interstate commerce, even though the threat may come only from
      intrastate activities." Third, Congress may "regulate those activities
      having a substantial relation to interstate commerce." Lopez struck down
      § 922(q)(1)(A), a regulation that fell in the third category, because the
      regulated activity did not "substantially affect" interstate commerce, and
      Congress had, therefore, exceeded its commerce power when it attempted
      to regulate that activity. However, the "in or affecting" language in §
      922(g) makes clear that an individual case may fall into either the second
      or third category. On the facts of this case, because the components of the
      ammunition are in interstate commerce, we are dealing with a regulation
      that falls within the second category.

United States v. Mosby, 60 F.3d 454, 456 n.3 (8th Cir. 1995) (internal citations
omitted).

       Like the ammunition at issue in Mosby, the firearms involved here were shipped
or transported in interstate commerce. Letts stipulated to that fact prior to trial. Thus,
Lopez has no application to this case. See, e.g., United States v. Chesney, 86 F.3d
564, 570-71 (6th Cir. 1996) (holding that a stipulation that gun had moved in interstate
commerce was sufficient evidence to support a conviction under § 922(g) and that
"Lopez . . . did not disturb the Supreme Court's precedents which indicate that a firearm
that has been transported at any time in interstate commerce has a sufficient effect on
commerce to allow Congress to regulate the possession of that firearm pursuant to its
Commerce Clause powers.").

       Letts next contends that a violation of § 922(g)(3) constitutes an impermissible
"status" offense. He relies upon the Supreme Court's decision in Robinson v.
California, 370 U.S. 660 (1962). In Robinson, the Supreme Court held that a person
cannot be convicted of a crime simply because of his status as a drug addict. Id. at



                                           -4-
667. Letts argues that he is being punished simply because of his status as a controlled
substance user.

       We disagree. Section 922(g)(3) targets the act of possessing a firearm, not a
defendant's status as a drug user. See United States v. Winchester, 916 F.2d 601, 606
(11th Cir. 1990) ("The statutory language and legislative history of the Gun Control Act
of 1968 [which includes § 922(g)] reveal that Congress' intent was to prohibit the
possession of firearms by classes of individuals it deemed dangerous, rather than to
punish persons solely for having a certain status under the law."). Where society has
an interest in regulating a certain act, such as possessing a firearm, a statute that
prohibits certain persons from committing that act does not violate Robinson's ban on
status crimes. See United States v. Ocegueda, 564 F.2d 1363, 1366-67 (9th Cir. 1977)
(addressing an earlier version of a statute that prohibited unlawful users of narcotic
drugs from receiving a firearm, and holding that the statute did not violate Robinson).

       Both of Letts's constitutional challenges to § 922(g)(3) lack merit. We therefore
find no plain error that justifies reversing his conviction.

II.   The Sentencing Issues.

      We limit our review of the sentencing issues to determining whether the district
court clearly erred in any of its factual findings, or misapplied the Sentencing
Guidelines. See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1998).


      A. The § 2K2.1(b)(5) Enhancement.

       Letts argues that the district court clearly erred in enhancing his sentence four
levels on the grounds that the firearms were possessed "in connection with" another
felony offense. U.S.S.G. § 2K2.1(b)(5). Letts contends that insufficient evidence
connected the guns to the meth lab.

                                          -5-
     In United States v. Regans, 125 F.3d 685 (8th Cir. 1997), we equated §
2K2.1(b)(5)'s reference to "in connection with" to the "in relation to" language of 18
U.S.C. § 924(c)(1). See Regans, 125 F.3d at 686. The Supreme Court has explained
that

      [t]he phrase "in relation to" thus, at a minimum, clarifies that the firearm
      must have some purpose or effect with respect to the drug trafficking
      crime; its presence or involvement cannot be the result of accident or
      coincidence . . . Instead, the gun at least must "facilitat[e], or ha[ve] the
      potential of facilitating," the drug trafficking offense.

Smith v. United States, 508 U.S. 223, 238 (1992).

      In this case, the government established Letts's connection to the meth lab
through Scott Hambly. Hambly told law enforcement officers that the meth lab
belonged to Letts (the lab was, after all, on Letts's property). In addition, Hambly said
that Letts allowed others to use the lab as long as he received some of the finished
product. The government also argued that the firearms discovered on Letts’s property
were connected to the meth lab. Letts had several weapons in his garage, which also
contained equipment and ingredients for manufacturing meth, as well as two containers
with user amounts of meth. The government points out that "[a]ll of the firearms seized
from outside of the house were present, near, or at parts of the methamphetamine
laboratory where they could have been used to protect the defendant's laboratory, and
were easily obtainable if necessary."

       Although thin, the government's evidence shows that the firearms at least had the
potential of facilitating the manufacture of meth. Cf. United States v. McClain, 171
F.3d 1168, 1171 (8th Cir. 1999) (upholding an enhancement under § 2K2.1(b)(5) where
defendant, while in close proximity to a meth lab, tossed a pistol into the back of his
truck just prior to being arrested for attempt to manufacture meth); United States v.
Johnson, 60 F.3d 422, 423 (8th Cir. 1995) (upholding an enhancement under §

                                          -6-
2K2.1(b)(5) where a loaded pistol was found in the same room where drugs and drug
paraphernalia belonging to the defendant were kept, and the defendant had taken both
the loaded pistol and the drugs with him to get a cheeseburger just prior to his arrest);
United States v. Condren, 18 F.3d 1190, 1197-1200 (5th Cir. 1994) (upholding an
enhancement under § 2K2.1(b)(5) where the firearm was merely present in a location
near the drugs where it could be used to protect them). We cannot conclude that the
district court clearly erred in applying a four level adjustment under § 2K2.1(b)(5).

       B. The § 2K2.1(b)(2) Lawful Sporting Purposes or Collection Exception.

       Finally, Letts argues that the district court clearly erred in refusing to adjust his
sentence six levels downward on the grounds that he possessed the firearms solely for
lawful sporting purposes or collection. Letts has the burden of proving that the
exception should apply. See United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir.
1990).

       We find no clear error in the district court's finding that the fifty-five firearms did
not constitute a collection. Letts kept several of the firearms loaded. In addition,
officers found the weapons in various and sundry places (a garage, an outbuilding, and
at least four separate areas of the residence) rather than together as a collection.

       Likewise, we find no clear error in the district court's finding that Letts did not
possess the firearms solely for lawful sporting purposes. We note that one of the
firearms was an SKS assault rifle equipped with a flare launcher.

       We affirm the judgment of conviction and sentence in all respects.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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