                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3807
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  William Robison

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                              Submitted: June 9, 2014
                                Filed: July 21, 2014
                                  ____________

Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

      On April 18, 2012, Cedar Rapids police officers responded to a report that a
shot had been fired at the residence of Laura Fluke, the mother of eighteen-year-old
William Robison. The officers interviewed individuals present at Fluke’s residence,
including Jenna Moser, and learned that Fluke had been assaulted by her boyfriend,
Shane Manley, on the front porch. Moser told the officers that Manley approached
Fluke on the porch, picked her up by her neck, hit her, and threw her to the ground.
Robison, who was in a second-floor bedroom when the fight began, retrieved a 9-mm
handgun and walked down the stairs into the living room where the fight between
Manley and Fluke continued. He then fired a shot into the living room wall above a
couch where two people were lying. The bullet traveled through both the living room
wall and the house’s exterior siding. After firing the shot, Robison returned to the
upstairs bedroom, where he told a friend that the shot nearly struck Manley. Fluke
did not sustain visible injuries during the assault. Officers searched the residence and
in the second-floor bedroom recovered the 9-mm handgun, which had an obliterated
serial number; a 12-gauge shotgun with a sawed-off barrel; and corresponding
ammunition.

       Robison pled guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). At his sentencing hearing, the district court1 applied a four-
level sentencing enhancement under USSG § 2K2.1(b)(6) based on its finding that
Robison possessed the 9-mm handgun in connection with another felony. An
additional twelve levels were imposed because the shotgun’s barrel was sawed off,
USSG § 2K2.1(a)(4)(B); the shotgun was determined to be a destructive device,
USSG § 2K2.1(b)(3)(B); and the handgun’s serial number was obliterated, USSG
§ 2K2.1(b)(4)(B). Given Robison’s criminal history category of III and total offense
level of 27, the district court determined an advisory guidelines range of 87 to 108
months. The court also noted Robison’s “history of marijuana-related juvenile
delinquency, criminal trespass, theft-related conduct, failing to appear, [and]
noncomplian[ce] while subject to correctional supervision” as well as his
consumption of methamphetamine and other drugs. The court then imposed a top-of-
the-guidelines sentence of 108 months’ imprisonment. Robison appeals both the
application of the four-level enhancement for possessing a firearm in connection with



      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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another felony as well as the substantive reasonableness of his sentence. For the
following reasons, we affirm.

       We review the district court’s finding that Robison possessed a firearm in
connection with another felony for clear error. United States v. Mosley, 672 F.3d 586,
589 (8th Cir. 2012). Robison’s challenge is limited only to whether another felony
was committed and not whether the firearm possession was “in connection with”
another felony. The Government bears the burden to prove that another felony was
committed by a preponderance of the evidence. United States v. Thomas, 565 F.3d
438, 441 (8th Cir. 2009). When an affirmative defense to the other felony is arguably
supported by the facts, the Government also must negate that defense by a
preponderance of the evidence. United States v. Raglin, 500 F.3d 675, 677 (8th Cir.
2007). The Government alleged that Robison committed two other felony offenses
while in possession of the 9-mm handgun: intimidation with a dangerous weapon,
in violation of Iowa Code § 708.6, and reckless use of a firearm, in violation of Iowa
Code § 724.30. Robison concedes that the elements of these offenses are established
in this case and instead relies solely on the affirmative defense of justification.

        Iowa law provides that “[a] person is justified in the use of reasonable force
when the person reasonably believes that such force is necessary to defend oneself
or another from any imminent use of unlawful force.” Iowa Code § 704.3.
“Reasonable force” is defined as “that force and no more which a reasonable person,
in like circumstances, would judge to be necessary to prevent an injury or loss.” Iowa
Code § 704.1. The Government can negate a justification defense by showing that
“an alternate course of action [was] available” to the defendant or that “the force used
was unreasonable.” State v. O’Shea, 634 N.W.2d 150, 157 (Iowa Ct. App. 2001).
Robison argues that the district court clearly erred in finding that the Government
established by a preponderance of the evidence that an alternate course was available
to him and that his use of force was unreasonable. He contends that because the
record does not affirmatively demonstrate that a physical threat did not exist at the

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time he fired the shot in the living room, the Government failed to meet its burden to
negate the justification defense. But even assuming that Manley posed some ongoing
physical threat to Fluke when Robison fired the shot, the police report received into
evidence at sentencing establishes both that Manley’s assault did not involve the use
of a firearm or any other type of dangerous weapon and that Fluke did not sustain
visible injuries from the assault. Accordingly, several other alternate courses of
action—less drastic than wielding and firing a 9-mm handgun—were available to
Robison, including physically separating Manley and Fluke, enlisting the assistance
of other people present in the living room, or calling the police. As the district court
critically noted at sentencing, “there was no evidence of imminent, serious injury or
death that would justify” firing a handgun. See Weatherspoon v. State, 697 N.W.2d
126, 2005 WL 723882, at *2 (Iowa Ct. App. 2005) (unpublished) (holding that
defendant’s use of a knife against an unarmed man was an unreasonable use of force);
State v. Ditmarson, 690 N.W.2d 700, 2004 WL 2002432, at *2 (Iowa Ct. App. 2004)
(unpublished) (holding that defendant’s use of a baseball bat against two unarmed
victims was an unreasonable use of force). Therefore, the district court did not
clearly err in determining that Robison used more force than a reasonable person, in
like circumstances, would have judged to be necessary given available alternatives
and the fact that Manley was unarmed and Fluke had not sustained visible injuries.
Because Robison was not entitled to a justification defense, his enhancement
challenge fails.

       Next, we review the substantive reasonableness of Robison’s sentence “under
a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). A sentence, such as Robison’s, imposed within the advisory guidelines range
is presumed to be substantively reasonable. United States v. Godsey, 690 F.3d 906,
912 (8th Cir. 2012). “A district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.” United

                                          -4-
States v. Kreitinger, 576 F.3d 500, 503 (8th Cir. 2009) (quoting United States v.
Miner, 544 F.3d 930, 932 (8th Cir. 2008)). Robison does not contend that the district
court failed to consider a relevant and significant factor or that it considered an
irrelevant or improper factor. Instead, he argues that the 108-month term of
imprisonment imposed upon him is unreasonable in light of his age, family
circumstances, and the cumulative effect of sentencing enhancements on his advisory
guidelines range. The district court, however, considered Robison’s arguments at
sentencing and determined that they were outweighed by the gravity of Robison’s
conduct—specifically noting that Robison’s firing the handgun “endangered the lives
of the people that were present in the room” and “his possession of a weapon with no
legitimate purpose—the sawed-off shotgun—suggests, again, a dangerousness.” In
addition, the district court emphasized Robison’s criminal history and his use of
marijuana, methamphetamine, and other drugs. We cannot say that the district court
committed a clear error of judgment in weighing these factors, and therefore the
district court did not abuse its discretion.

      For the foregoing reasons, we affirm.
                      ______________________________




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