                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 17-1616
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Keith R. Hardin

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 15, 2017
                               Filed: May 11, 2018
                                  ____________

Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,1 District
Judge.
                         ____________

GRUENDER, Circuit Judge.

       Keith Hardin was convicted by a jury of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district court later determined that


      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
he qualified for an enhanced sentence under the Armed Career Criminal Act
(“ACCA”) on account of his prior Missouri felony convictions. See id. § 924(e)(1).
Hardin now appeals his conviction, arguing that the district court improperly excluded
evidence concerning the firearm’s operability and erred in denying his motion for
judgment of acquittal. He also challenges his sentence, claiming that at least some of
his prior convictions do not qualify as violent felonies under the ACCA. We affirm
Hardin’s conviction, but in light of intervening circuit precedent, we vacate his
sentence and remand for resentencing.

                                            I.

       In the early morning hours of January 15, 2016, two officers with the Kansas
City Police Department (“KCPD”) observed Hardin walking in the street. The
officers decided to stop him because he was violating a city ordinance that required
pedestrians to use sidewalks where possible. After a brief exchange, the officers
asked Hardin for identification, which he provided. They then discovered that he was
the subject of an arrest warrant. When the officers told Hardin they were placing him
under arrest, he informed them, “I have a .380 on my left hip.” The officers seized a
firearm loaded with six rounds of live ammunition. Subsequent forensic analysis
identified the firearm as a .380 Cobra handgun. However, the weapon was determined
to be inoperable “due to a broken trigger and numerous missing parts.”

       Hardin was later indicted for being a felon in possession of a firearm. See 18
U.S.C. § 922(g)(1). Before trial, the Government filed a motion in limine requesting
the exclusion of evidence concerning the gun’s operability. The Government argued
that, because the .380 Cobra met the federal definition of a firearm as a weapon
“designed to . . . expel a projectile by the action of an explosive,” see id. § 921(a)(3),
the gun’s inability to fire was irrelevant and “would likely confuse and mislead the
jury.” The district court granted this motion. However, citing our decision in United
States v. Counce, it also noted that the operability of a weapon could be relevant to its

                                           -2-
design. See 445 F.3d 1016, 1018 (8th Cir. 2016) (per curiam). Therefore, the court
left open the possibility of admitting operability evidence if Hardin first presented an
appropriate basis for doing so outside the presence of the jury.

       At the conclusion of the Government’s case and again at the close of evidence,
Hardin moved for acquittal. The district court denied both motions after concluding
that Hardin had admitted to all three elements of the felon-in-possession offense: (1)
a previous felony conviction and (2) knowing possession of a firearm (3) that was in
or affecting interstate commerce. See United States v. Garcia-Hernandez, 803 F.3d
994, 996 (8th Cir. 2015). Prior to trial, Hardin stipulated to the first and third
elements. As for the second element, Hardin’s trial counsel conceded multiple times
that the gun was originally designed to expel a projectile, although she insisted that
it “was so damaged that it no longer fit . . . the original design of the manufacturer.”
She also admitted in her opening statement that Hardin had possessed “what he
thought was okay to carry, a firearm.” On this basis, the court found that the second
element had been conceded. Therefore, the court allowed the case to proceed to the
jury, which found Hardin guilty of being a felon in possession of a firearm.

       Hardin’s presentence investigation report (“PSR”) concluded that he was
subject to an enhanced sentence as an armed career criminal because he had at least
three prior convictions for violent felonies. See 18 U.S.C. § 924(e)(1). While the PSR
did not specify which of Hardin’s convictions qualified as predicate offenses, it
detailed his criminal history, which included Missouri convictions for first-degree
robbery, second-degree burglary, forcible sodomy, and armed criminal action. The
resulting guidelines range was 188 to 235 months’ imprisonment. Hardin’s only
objection to the PSR was that it incorrectly classified him as an armed career criminal.
At the sentencing hearing, the district court overruled this objection, adopted the
PSR’s guidelines-range calculation, and sentenced him to 235 months. Hardin now
appeals both his conviction and his sentence.



                                          -3-
                                           II.

       We begin with Hardin’s two challenges to his conviction, both of which relate
to whether the .380 Cobra qualified as a firearm for purposes of the federal felon-in-
possession statute. “To obtain a conviction under 18 U.S.C. § 922(g), the government
must prove that an object satisfies the federal definition of a firearm.” Counce, 445
F.3d at 1018. This definition includes “any weapon . . . which will or is designed to
or may readily be converted to expel a projectile by the action of an explosive.” 18
U.S.C. § 921(a)(3). Citing the disrepair of his gun, Hardin argues that he should have
been allowed to offer operability evidence as part of his defense and that he should
have been acquitted because the Government failed prove that the gun qualified as a
firearm under the federal definition.

                                            A.
       Hardin first argues that the district court improperly excluded evidence
concerning the operability of the .380 Cobra. Specifically, the court precluded him
from: (1) eliciting testimony from the KCPD forensic specialist who determined that
the gun “did not function due to a broken trigger and numerous missing internal
parts”; (2) cross-examining officers regarding the condition of the gun; and (3)
testifying as to his own belief that he could carry the weapon despite his status as a
felon because it was inoperable. Under the Federal Rules of Evidence, a district court
“may exclude relevant evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” Fed.
R. Evid. 403. “We review the district court’s decision to exclude evidence for an
abuse of discretion.”2 Counce, 445 F.3d at 1018.


      2
       Although Hardin acknowledges that we generally review such determinations
for an abuse of discretion, he insists that the exclusion of operability evidence here
implicated his Fifth and Sixth Amendment rights and therefore must be reviewed de
novo. Even assuming he is correct, the application of a more stringent standard of
review does not affect our conclusion in this case.

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       As we have recognized previously, “the operation of a weapon may be relevant
to whether it is designed to expel a projectile by the action of an explosive.” Id. That
is, a gun may not qualify under the federal definition if it is “damaged in a way that
fundamentally altered its original design.” United States v. Davis, 668 F.3d 576, 577
(8th Cir. 2012). However, Hardin cites no cases in which a gun has been disqualified
under this standard, and all four cases on which he relies actually indicate that broken
pieces and missing parts are not enough to constitute a fundamental alteration in
design. See id. at 576-77 (upholding an enhanced sentence involving a
“semiautomatic firearm that is capable of accepting a large capacity magazine” where
the gun had no trigger); Counce, 445 F.3d at 1018-19 (finding that evidence of a
missing safety and the resulting inability of a gun to fire was properly excluded
because it would have resulted in substantial juror confusion without having
significant probative value as to the weapon’s design); United States v. Dotson, 712
F.3d 369, 370, 372 (7th Cir. 2013) (determining that a pistol qualified as a firearm
under § 921(a)(3) despite “significant damage, missing/broken parts, and extensive
corrosion”); United States v. Rivera, 415 F.3d 284, 286-87 (2d Cir. 2005) (concluding
that a broken firing pin and flattened firing-pin chamber did not change the design of
a pistol and explaining that, “[w]here a weapon designed to fire a projectile is
rendered inoperable, whether on purpose or by accident, it is not removed from the
statute’s purview; although it is temporarily incapable of effecting its purpose, it
continues to be ‘designed’ to fire a projectile”). In other words, “[a] gun is still a
gun . . . even though it is in bad condition,” see Dotson, 712 F.3d at 370, and we
require something more to find a fundamental alteration in design—“for example, a
gun with a barrel filled with lead . . . for use as a theatrical prop,” Davis, 668 F.3d at
577, or a Beretta redesigned to be a cigarette lighter, see Dotson, 712 F.3d at 371-72.

       Hardin does not suggest that the condition of his .380 Cobra somehow makes
this case factually distinguishable from the above precedent. Instead, he claims that
the district court improperly excluded evidence under the theory that “what was once
a gun, is always a gun.” However, even a cursory reading of the order granting the

                                           -5-
Government’s motion in limine belies this argument. The district court did not issue
a blanket prohibition on operability evidence. Rather, it explicitly recognized that
such evidence “may be relevant to its design” and, accordingly, left the door open for
Hardin to show that his proffered evidence would be relevant for that purpose. Given
that Hardin never suggested that he had the type of evidence that could show that the
.380 Cobra had been “fundamentally altered,” see Davis, 668 F.3d at 577, there was
no basis for concluding that the pistol had changed from what Hardin conceded it was
originally manufactured to be: “a gun, a weapon, for use to expel projectiles.”
Therefore, we conclude the operability evidence “was properly excluded under Rule
403 because [it] would have yielded substantial juror confusion without having
significant probative value regarding the issue of weapon design.”3 See Counce, 445
F.3d at 1019.

                                         B.
       Hardin also argues that the district court erred in denying his motion for
judgment of acquittal because the Government failed to prove that the .380 Cobra
qualified under the federal definition of a firearm despite its missing pieces and
broken parts. Under Federal Rule of Criminal Procedure 29(a), a district court must
grant a defendant’s motion for judgment of acquittal where the evidence is insufficient
to sustain a conviction. “We review the denial of a motion for judgment of acquittal
de novo, viewing the evidence in the light most favorable to the jury’s verdict.”
United States v. Nshanian, 821 F.3d 1013, 1017 (8th Cir. 2016). “We will direct a
judgment of acquittal only when no reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” Id.



      3
        Hardin’s trial counsel argued that the operability evidence was also relevant
to his belief that it was not unlawful to carry a broken gun. Hardin does not appear
to make this argument on appeal, but even if he did, our caselaw precludes this
interpretation of “knowing” possession. See Garcia-Hernandez, 803 F.3d at 997
(discussing relevant cases and rejecting this reading of § 922(g)(1)).

                                         -6-
        “Like our sister circuits, we have consistently held that proof the firearm was
operable is not required because the plain language of § 921(a)(3) requires only that
the weapon . . . is designed to . . . expel a projectile by the action of an explosive.”
Davis, 668 F.3d at 577 (internal quotation marks omitted). Although it may be
necessary for the Government to adduce additional evidence where a defendant calls
into question whether a gun has been “fundamentally altered,” see id., Hardin did not
do so here for the reasons discussed above. Moreover, “numerous courts have held
that, without a firearm in evidence and without expert opinions based on analysis of
the firearm, lay testimony from eyewitnesses can be sufficient to support a finding that
an object is, in fact, a firearm under § 921(a)(3)(A).” United States v. Dobbs, 449
F.3d 904, 910-11 (8th Cir. 2006). Here, the Government admitted Hardin’s .380
Cobra into evidence, three officers testified that they seized this weapon from him,
and Hardin’s own counsel conceded that he knowingly possessed an inoperable
firearm. Thus, there was sufficient evidence to prove the second element of the felon-
in-possession offense. Given that he also stipulated to the other two elements, the
district court did not err in denying his motion for judgment of acquittal.

                                          III.

       Hardin’s final assertion of error concerns the district court’s determination that
he qualified for an enhanced sentence as an armed career criminal. The ACCA
establishes a minimum term of fifteen years’ imprisonment for unlawful possession
of a firearm by a felon who “has three previous convictions . . . for a violent felony
or a serious drug offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e). Because Hardin’s convictions for forcible sodomy and
armed criminal action stemmed from a single incident, the Government concedes that
his robbery and burglary convictions must both qualify as violent felonies for him to
be an armed career criminal. After oral argument, an en banc panel of this court
determined that the version of Missouri second-degree burglary under which Hardin
was convicted no longer qualifies as a violent felony. See United States v. Naylor,

                                          -7-
887 F.3d 397, 399 (8th Cir. 2018) (en banc) (lead opinion) (overruling United States
v. Sykes, 844 F.3d 712 (8th Cir. 2016)); id. at 408 (Colloton, J., concurring in the
judgment). Because of this decision and the Government’s concession, we conclude
that Hardin no longer qualifies for the ACCA enhancement and vacate his sentence.

                                        IV.

     Accordingly, we affirm Hardin’s conviction, but we vacate his sentence and
remand for resentencing in light of our decision in United States v. Naylor.
                      ______________________________




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