                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 02-4211
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.


BRENT E. MERRITT,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 01 CR 81—John Daniel Tinder, Judge.
                          ____________
   ARGUED OCTOBER 20, 2003—DECIDED MARCH 22, 2004
                   ____________



 Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. In this direct appeal of a judgment
and sentence entered pursuant to a jury verdict, the
Defendant-Appellant Brent E. Merritt seeks to have his
conviction for possession of firearms and ammunition as a
convicted felon under 18 U.S.C. § 922(g)(1) (2000) over-
turned for any of the following three reasons. First, he
asserts that the district court should have suppressed evi-
dence obtained during a search of his home pursuant to a
warrant (later determined to lack sufficient probable cause
to issue), rather than applying the good-faith exception to
2                                               No. 02-4211

the exclusionary rule. Second, Merritt argues that the jury’s
verdict was not supported by sufficient evidence. And last,
he challenges whether his sentence is proper because the
district court considered relevant conduct only proven by a
preponderance of the evidence, and not beyond a reasonable
doubt. For the following reasons, all these arguments fail,
and we affirm the district court’s judgment and sentence.


                        I. History
   Merritt, a convicted felon, owned Club 2001, an
Indianapolis nightclub for persons under the age of twenty-
one. Merritt and his family also resided in Indianapolis.
During the early morning hours of December 3, 2000, a
fire completely destroyed Club 2001. Merritt had insured
the club for approximately $678,000. Following the fire,
he “made preliminary inquiries into filing an insurance
claim,” although he never submitted one. The insurance
company and federal, state, and local authorities investi-
gated the fire.
  A substance which accelerates the intensity and rate at
which a fire spreads was found in several areas of the club.
In addition, no signs of forced entry were found, and Merritt
and his two sons were the only persons with keys to the
club. Also, his sons provided investigators with conflicting
statements about the removal of disc-jockey equipment from
the club prior to the fire. This equipment was later found on
January 4, 2002 in the sons’ residence.
  Based upon the foregoing information which aroused
suspicions of arson, Bureau of Alcohol, Tobacco, and
Firearms (“BATF”) Agent Michael A. Vergon, with the
assistance of Assistant United States Attorney (“AUSA”)
Joseph H. Vaughn, sought to obtain a search warrant for
Merritt’s residence, in part to determine through financial
documents and records whether Merritt had a financial
motive to commit arson.
No. 02-4211                                               3

  An affidavit and application for a search warrant
were submitted on January 22, 2001 to a United States
magistrate judge. In the affidavit, Agent Vergon provided
the incident information, as well as the following: he had
twelve years of experience with the BATF, including some
arson investigations; Club 2001 closed at approximately
1:30 a.m. the morning of the fire; Merritt used an accoun-
tant as a bookkeeper for Club 2001 and to prepare tax
returns; and Merritt’s wife provided the accountant with
various documents and records, including documents pre-
pared on a computer in Merritt’s home. The magistrate
judge found that the affidavit established probable cause
and issued a warrant to search Merritt’s residence for
financial or other documents and records that could reveal
a motive for arson. The search warrant was executed on
January 23, 2001.
   While searching Merritt’s residence, law-enforcement
officers, including Agent Vergon, discovered a vault located
in the basement of the home. After Merritt informed Agent
Vergon that the items in the vault were not his and that he
could not gain entry, Mrs. Merritt opened the vault. The
agents discovered numerous firearms, ammunition, and
various firearm attachments. Agent Vergon then obtained
a second search warrant to search the Merritt residence for
firearms. In addition to the firearms, other items were
found in the vault, including glamour shots of Mrs. Merritt,
photographs of nude and partially nude women, one of
which was signed, “Brent, Lustfully Yours,” three photo
identifications of Merritt, and several pieces of mail ad-
dressed to Brent Merritt. The execution of this search
warrant resulted in the confiscation of seventy-three
firearms and many rounds of ammunition from the vault.
In addition, one shotgun was found in a concealed office in
the basement of the residence.
 Consequently, in August of 2001, Merritt was indicted
with possession on or about January 23, 2001, of approxi-
4                                                No. 02-4211

mately seventy-four firearms and numerous rounds of
ammunition by a convicted felon (Count 1), and possession
on or about January 23 and continuing through on or about
June 12, 2001, of two firearms, a machine gun, and a
silencer by a convicted felon (Count 2), in violation of 18
U.S.C. § 922(g)(1). On September 25, 2001, Merritt moved
to suppress the fruits of the search of his residence, alleging
that the affidavit supporting the search warrant lacked
probable cause and that the good-faith exception to the
exclusionary rule should not apply. Specifically, he argued:
(1) the affidavit signed by Agent Vergon in support of the
warrant intentionally or recklessly included false state-
ments and/or omitted material facts, negating the magis-
trate’s finding of probable cause, see Franks v. Delaware,
438 U.S. 154 (1978); or, if this first argument were to fail,
then (2) the good-faith exception to the exclusionary rule
nonetheless could not apply because a reasonably well-
trained officer would have known that the warrant lacked
probable cause despite a neutral and detached magistrate’s
authorization, see United States v. Leon, 468 U.S. 897, 922-
23 (1984). Based upon either argument, Merritt asserted,
the search violated the Fourth Amendment to the United
States Constitution. The district court conducted a suppres-
sion hearing on December 20 and 21, 2001.
   Following the hearing, in January of 2002, the district
court issued an Order setting out three key findings. First,
the court determined that Agent Vergon had not made a
false statement, nor omitted material facts from the affi-
davit, either intentionally or with reckless disregard of the
truth. Second, because nothing on the face of the affidavit
indicated that the financial records sought would reveal the
Merritts to be in financial distress, the court concluded that
the affidavit failed to allege probable cause. And third, the
court held that Agent Vergon acted with good faith in
executing the warrant. Hence, the court denied Merritt’s
motion to suppress.
No. 02-4211                                                   5

  Following a jury trial which lasted from July 8 to July 12,
2002, Merritt was found guilty of Count 1 and acquitted of
Count 2. During Merritt’s sentencing hearing on November
27, 2002, the district court concluded by a preponderance of
the evidence that, for the count of conviction, Merritt
possessed more than twenty-five, but less than 100, fire-
arms. The court therefore applied a six-level sentencing
enhancement under U.S.S.G. § 2K2.1(b)(1)(C) (2003),
resulting in a total offense level of twenty-eight. As a result,
Merritt was sentenced to 108 months incarceration, three
years supervised release, and a $37,500 fine.


                        II. Analysis
            A. Motion to Suppress Evidence
  Merritt first argues that the district court erred when,
following the hearing on December 20-21, 2001, it denied
his motion to suppress the fruits of the January 23 search
of his home. He asserts that the search was in violation of
his Fourth Amendment rights. The Fourth Amendment
protects against “unreasonable searches and seizures” and
generally requires that a law-enforcement officer have
probable cause before making an arrest or conducting any
search. U.S. Const. amend. IV. When evidence is obtained
in violation of the Fourth Amendment, the exclusionary
rule precludes the use of such evidence and its fruits in
criminal proceedings against the victim of the violation. See
United States v. Calandra, 414 U.S. 338, 347 (1974).
However, it is not a personal constitutional right of the
aggrieved party; rather, it is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally
through its deterrent effect.” Id. at 348.
  The exclusionary rule has such a deterrent effect
when, by “punishing [ ] behavior [which violates a citizen’s
Fourth Amendment rights] and removing the incentive for
its repetition,” United States v. Espinoza, 256 F.3d 718, 724
6                                                 No. 02-4211

(7th Cir. 2001), cert. denied, 534 U.S. 1105 (2002), it
“alter[s] the behavior of individual law-enforcement officers
or the policies of their departments,” Leon, 468 U.S. at 918.
The exclusionary rule should not be applied, therefore,
when its application will not result in “appreciable deter-
rence.” See Leon, 468 U.S. at 909 (quoting United States v.
Janis, 428 U.S. 433, 454 (1976)). Evidence obtained pursu-
ant to a facially valid search warrant later found to be
unsupported by probable cause should be suppressed only
if “the magistrate abandoned his detached and neutral role,
. . . the officers were dishonest or reckless in preparing their
affidavit, or could not have harbored an objectively reason-
able belief in the existence of probable cause.” Leon, 468
U.S. at 926. And conversely, evidence should not be sup-
pressed if an officer acted with objective good faith, ob-
tained the search warrant from a neutral and detached
magistrate, and acted within its scope, since the exclusion
of evidence could have no affect on police conduct. Id. at
919-21. In other words, under those circumstances, because
there is nothing to deter, the good-faith exception to the
exclusionary rule applies.
  A district court’s findings of fact and credibility determi-
nations from a suppression hearing are reviewed for clear
error, while its conclusions of law are reviewed de novo.
United States v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002);
see also United States v. Koerth, 312 F.3d 862, 865 (7th Cir.
2002), cert. denied, ___ U.S. ___, 123 S. Ct. 1947 (2003). A
factual finding is clear error only when we are “ ‘left with
the definite and firm conviction that a mistake has been
made.’ ” Jackson, 300 F.3d at 745 (quoting United States v.
Gravens, 129 F.3d 974, 978 (7th Cir. 1997)). And we give
“special deference to the trial court that heard the testi-
mony and had the best opportunity to observe the witnesses
at the suppression hearing.” Id. We also review de novo a
district court’s ultimate legal conclusion regarding whether
No. 02-4211                                                 7

a law-enforcement officer reasonably relied upon a subse-
quently invalidated search warrant. Koerth, 312 F.3d at
865.
  As noted, the district court’s Order denying Merritt’s
motion to suppress contained three key holdings. And
although only the third ruling, applying the good-faith ex-
ception, is explicitly contested on appeal, in the interest of
thoroughness and because Merritt may implicitly contest
the first ruling, we will discuss each in turn.


1. Intentional or Reckless Disregard of the Truth
  Under Franks v. Delaware, 438 U.S. 154 (1978), if a
defendant can demonstrate by a preponderance of the evi-
dence that the signatory of the warrant affidavit made a
false statement (or omitted a material fact ) either inten-
tionally or with reckless disregard for the truth, then a
court will consider whether the content of the affidavit,
setting aside the false material (or including the omitted
material), is sufficient to establish probable cause. If it is
not, the search warrant must be voided and the fruits of the
search excluded. Id. at 155-156; United States v. Pace, 898
F.2d 1218, 1232 (7th Cir. 1990). And concomitantly, no
good-faith exception can then apply. See Leon, 468 U.S. at
923.
  But before a court will grant such an evidentiary hearing
(a “Franks hearing”), the defendant must make a substan-
tial preliminary showing, typically in a motion to suppress,
that (1) the warrant affidavit contained a false statement or
omitted a statement; (2) the affiant made or omitted
the statement either intentionally or recklessly; and (3) the
statement was material or necessary to the finding of
probable cause. 438 U.S. at 155-56; see United States v.
Jackson, 103 F.3d 561, 574 (7th Cir. 1996).
8                                               No. 02-4211

  Considering whether to grant Merritt such a hearing, the
district court rejected his contention that two statements
made by Agent Vergon in the affidavit were false. But the
court also concluded that Merritt had made a substantial
preliminary showing that Agent Vergon had intentionally
omitted material facts, namely, that during a meeting on
January 9, 2001 between Agent Vergon and Merritt’s
accountant, Joseph Knarzer, Knarzer generally indicated
that the Merritts were in good financial shape. Hence, the
court granted Merritt the suppression hearing, held on
December 20 and 21.
  During that hearing, the district court heard testimony
from both Knarzer and Agent Vergon. Knarzer generally
had a poor recollection of his January 9 interview with
Agent Vergon. He could only recall with certainty making
two statements to Agent Vergon which could have positively
reflected on the Merritts: the Merritts were current in their
obligations, and the investigators were “barking up the
wrong tree.” (R.39 at 39-71.)
  In contrast, Agent Vergon did not have trouble with his
recollection of his meeting with Knarzer, and his detailed
testimony supported the veracity of his belief that Merritt
had a financial motive to commit arson. Specifically, Agent
Vergon testified that Knarzer told him that he primarily
performed end-of-the-year tax work for the Merritts, but
had not handled any financial documents for the family
since the end of 1999. The Merritts’ gross income between
1997 and 1999 dropped from approximately $98,000 to
$11,000. And during 1999, the first year of Club 2001’s
operation, it lost $27,000. (R. 39 at 88-90, 117-25.) More-
over, Agent Vergon testified that Knarzer never made any
statement indicating that Merritt had “absolutely no finan-
cial motive” to destroy Club 2001. (R. 39 at 120, 125, 132-
33.)
  In addition, other than a credit check which revealed
nothing amiss, additional investigation by Agent Vergon
following the January 9 meeting also supported his sus-
No. 02-4211                                                9

picions: there were inconsistencies between Merritt and one
of his sons about who controlled the business; Merritt was
owed over $70,000 in back rent and other fees, which he
had not been able to collect; Club 2001’s alarm system had
not been functioning properly since June; Merritt was also
having trouble with his liquor license and zoning for the
club; fines had been levied against the establishment;
Merritt unsuccessfully attempted to sell the club shortly
before the fire; and he told people it was losing money due
to security costs.
  The information omitted from the affidavit included
that which could have both supported and detracted from a
finding of probable cause. Based upon the foregoing evi-
dence presented at the suppression hearing, the district
court held that Agent Vergon omitted statements and in-
formation he received from Knarzer which Agent Vergon
considered to be merely opinion, and not fact. Consequently,
these omissions were not intentionally or recklessly in
disregard of the truth. While Merritt does not explicitly
challenge this conclusion on appeal, to the extent that he
may implicitly raise the issue, we find no clear error in the
court’s determination.


2. The Warrant Lacked Probable Cause to Issue
  Since the affidavit on its face included no information in-
dicating that the financial records sought would reveal a
motive for the Merritts to commit arson, the district court
held that the warrant affidavit failed to allege probable
cause. On appeal, the government concedes this point.
Therefore, we next consider the district court’s third and
final ruling.
10                                              No. 02-4211

3. The Good-Faith Exception to the Exclusionary
   Rule
  Although the district court determined that the warrant
lacked probable cause to issue, in its Order denying
Merritt’s motion to suppress, the court also held that the
good-faith exception to the exclusionary rule applied. In his
appeal, Merritt essentially makes two interrelated argu-
ments to challenge that holding. First, he complains that
the district court created a new, legally incognizable good-
faith exception to the exclusionary rule because it was
AUSA Vaughn who actually sat at the keyboard and typed
up the affidavit in support of the warrant. Second, should
that argument fail, he asserts that the court erred when it
found that Agent Vergon’s reliance upon a facially valid
warrant issued by a neutral and detached magistrate was
objectively reasonable. And because Merritt does not chal-
lenge whether the magistrate judge was neutral and
detached, this second inquiry is concerned only with Agent
Vergon’s objectively reasonable reliance.


  a. Drafting the Affidavit
  As noted above, during the December hearing, among
other witnesses, the district court heard from Agent Vergon
about the circumstances leading up to and including the
drafting of the affidavit and application for the warrant.
Throughout the Club 2001 investigation, Agent Vergon
provided AUSA Vaughn with bi-weekly reports, in writing,
in person, and by telephone. During the drafting of the
affidavit on January 22, 2001, AUSA Vaughn reviewed
Agent Vergon’s reports. The two discussed the facts of the
case and the content of the affidavit. AUSA Vaughn served
as scrivener and Agent Vergon reviewed and edited the
affidavit.
 It is common practice for a federal prosecutor to work
with, alongside, and conjointly with a law-enforcement offi-
No. 02-4211                                                11

cer in the drafting of an affidavit in support of a warrant
application. In this case, Agent Vergon was the signatory
and the fact that it happened to be the AUSA who sat at the
keyboard and typed the affidavit is immaterial to our good
faith analysis. Merritt’s counsel is unable to point to any
case that says otherwise. In fact, volumes of case law
encourage this sort of cooperation between the prosecutor
and law-enforcement officers. See, e.g., Leon, 468 U.S. at
903-04 n.4 (applying good-faith exception where officers
consulted with three deputy district attorneys before sub-
mitting deficient warrants to the court); United States v.
Johnson, 78 F.3d 1258, 1264 (8th Cir. 1996) (noting that
seeking the advice of a district attorney is a factor weighing
in favor of determining that the officer’s reliance on the
warrant was objectively reasonable); United States v.
Carter, 999 F.2d 182, 184-88 (7th Cir. 1993) (holding that a
prosecutor’s participation in the drafting of a “no-knock”
provision of a warrant, later found to be insufficiently
justified by the affidavit, did not preclude application of the
good-faith exception); United States v. Tagbering, 985 F.2d
946, 949-51 (8th Cir. 1993) (applying the good-faith excep-
tion where a prosecutor had reviewed and signed the
warrant affidavit before it was submitted to the court);
United States v. Brown, 951 F.2d 999, 1005 (9th Cir. 1991)
(noting “an officer’s consultation with a government attor-
ney is of significant importance to a finding of good faith”).
  Refusing to apply the good-faith exception to the ex-
clusionary rule simply because an affidavit was prepared
with the assistance and approval of prosecutors would do
nothing to forward the rule’s basic purpose, to deter police
misconduct. As we discuss below and as the district court
noted, in a case such as this where the issue is whether
probable cause existed, Agent Vergon’s consultation with
the AUSA particularly supports the finding that his reli-
ance upon the warrant was objectively reasonable.
12                                              No. 02-4211

  b. Agent Vergon’s Reliance on the Warrant
  We next consider whether Agent Vergon’s reliance on a
facially valid warrant issued by a neutral and detached
magistrate was objectively reasonable. As a preliminary
matter, we observe that an objectively reasonable belief
that the warrant was properly issued must be demonstrated
by the officer who provided the information material to the
probable cause determination, the officer who obtained the
warrant, and the officer who executed the warrant. Leon,
468 U.S. at 923 n.24. In this case, Agent Vergon provided
the information for the warrant, obtained the warrant, and
executed the warrant. And as noted supra Part II.A.1.,
Merritt does not challenge the district court’s finding that
Agent Vergon did not act recklessly or intentionally under
Franks, 438 U.S. 154 (1978 ), (i.e., with bad faith), in
providing the information for the warrant or in obtaining
the warrant. Hence, we are concerned here only with
whether Agent Vergon acted with an objectively reasonable
belief that the warrant was properly issued when he
executed the warrant.
  The government must establish such objective reasonable-
ness or “good faith” by a preponderance of the evidence,
Koerth, 312 F.3d at 868; United States v. Matlock, 415 U.S.
164, 177 n.14 (1974). Agent Vergon’s decision to obtain a
warrant is prima facie evidence of good faith, rebuttable if
the affidavit was “so lacking in indicia of probable cause as
to render official belief in its existence entirely unreason-
able.” 312 F.3d at 868 (quotations omitted). Here, Agent
Vergon’s reliance was objectively reasonable for three
primary reasons.
  First, the affidavit in this case was not “bare bones”
or “boilerplate form.” See United States v. Peck, 317 F.3d
754, 757 (7th Cir. 2003) (finding affidavit sufficient even
though “bare bones”). Agent Vergon provided numerous
details and facts about the fire at Club 2001, including the
No. 02-4211                                                  13

number of years he had been with the BATF, his knowledge
and experience investigating criminal complaints, particu-
larly arson cases, the amount of the insurance policy, and
Merritt’s use of an accountant.
  Second, the affidavit was drafted, reviewed, and approved
by AUSA Vaughn. Probable cause is a legal term of art and
a “fluid concept” not “reduc[ible] to a neat set of legal rules,”
United States v. Gates, 462 U.S. 213, 232 (1983), and as to
which “[r]easonable minds frequently may differ,” Leon, 468
U.S. at 914. As the district court aptly noted, it is “incapa-
ble of precise definition.” Thus, as we stated above, consul-
tation with a prosecutor weighs in favor of a finding of
objective reasonableness.
  Third, and similarly, the warrant was issued by a neutral
and detached magistrate. “[I]n the ordinary case, a law
enforcement officer ‘cannot be expected to question’ the
magistrate’s probable cause determination.” United States
v. Sleet, 54 F.3d 303, 307 (7th Cir. 1995) (quoting Illinois v.
Krull, 480 U.S. 340, 349 (1987)); see also Massachusetts v.
Sheppard, 468 U.S. 981, 989-90 (1984) (officer cannot be
“required to disbelieve” the judge issuing the warrant).
  To summarize, Vergon did everything he could to obtain
a proper warrant. He collected information which he re-
layed to the AUSA. He then went to AUSA Vaughn for
assistance in drafting an affidavit that would comply with
the Fourth Amendment. Next Vergon went to a neutral and
detached magistrate to obtain the warrant. Only then did
he execute the warrant. There is no reason to expect Agent
Vergon to second-guess both the magistrate judge, with
years of training and experience in a judicial capacity, and
AUSA Vaughn. The affidavit is not “so plainly deficient that
any reasonably well-trained officer ‘would have known that
his affidavit failed to establish probable cause and that he
14                                             No. 02-4211

should not have applied for the warrant.’ ” Koerth, 312 F.3d
at 869 (quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)).
  Having determined that the district court was correct in
finding that Agent Vergon’s reliance on the warrant was
objectively reasonable, we make one final inquiry into the
costs and benefits of excluding the seventy-four firearms—
“inherently trustworthy tangible evidence obtained in reli-
ance on a search warrant issued by a detached and neutral
magistrate that ultimately [was] found to be defective.”
Leon, 468 U.S. at 906-07. In the instant case, the cost of
excluding the evidence would be to “essentially let Merritt
free.” (R.45 at 22.) But there would be no corresponding
benefit because, as alluded to earlier, suppression in this
case would not further the deterrent purpose of the exclu-
sionary rule since Agent Vergon acted in good faith and
made every effort to comply with the Fourth Amendment.
We agree with the district court that the balance tipped in
favor of allowing the evidence. Consequently, we affirm its
denial of Merritt’s motion to suppress.


           B. Section 922(g)(1) Conviction
  Next, Merritt contends that there was insufficient evi-
dence to support the jury’s verdict finding him guilty of
Count 1. We accord great deference to a jury verdict. United
States v. Fernandes, 272 F.3d 938, 943 (7th Cir. 2001). It
will be overturned only when no rational trier of fact could
have found the essential elements of the crime, weighing
the evidence in the light most favorable to the prosecution.
United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001).
Furthermore, we do not “second-guess the jury’s credibility
determinations.” Id.
    Under 18 U.S.C. § 922(g)(1), the government had the
burden of proving beyond a reasonable doubt that (a)
Merritt was a felon; (b) he “possessed” the seventy-four
firearms on or about January 23, 2001; and (c) the firearms
No. 02-4211                                               15

traveled in interstate commerce. The sole issue at trial was
possession, because Merritt stipulated that he was a felon
and that the seventy-four firearms had traveled in inter-
state commerce. And since the firearms were discovered in
a locked vault which Merritt at the time of the search
denied having access to, the prosecution presented evidence
of constructive, rather than actual, possession.
  A person has constructive possession if he has “the power
and the intention at a given time to exercise dominion and
control over an object, either directly or through others.”
United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003)
(internal quotation omitted). “[C]onstructive possession can
be established through circumstantial evidence,” United
States v. Robinson, 208 F.3d 626, 632 (7th Cir. 2000),
including a series of inferences drawn from the evidence, see
Thomas, 321 F.3d at 636.
  For the sake of brevity, we list some of the inculpatory
evidence presented at trial:
  • aside from the seventy-three firearms contained in the
    vault, the contents also included: a Father’s Day card
    addressed to Merritt, photographs of nude women and
    of Mrs. Merritt, photographs of Merritt with a woman
    who was not Mrs. Merritt, various photographic iden-
    tifications of Merritt, and correspondence addressed to
    Merritt;
  • of the seventy-three firearms contained in the vault,
    one was a Colt Commander handgun Merritt had
    purchased before he incurred his felony violation, and
    one was a Smith and Wesson shotgun with a fingerprint
    of Merritt’s;
  • prior to the opening of the vault, Merritt made state-
    ments expressing concern over his wife seeing photo-
    graphs located in the vault;
  • after the vault was opened, Merritt made statements
    about how the Sten machine gun in the vault operated;
16                                                 No. 02-4211

    • aside from the pistol-grip shotgun located in a concealed
      office in the basement, the office also contained adult
      videotapes, correspondence addressed to Merritt, and
      one photographic identification of Merritt; and
    • Merritt went into the concealed office.
  Merritt did present other evidence, wholly testimonial,
which tended to prove his lack of constructive posses-
sion (i.e., the testimony of Mrs. Merritt, Stanley Merritt,
and Lynn Atkinson). In addition, regarding the physical evi-
dence, at trial (and now on appeal) Merritt offered nu-
merous plausible explanations consistent with innocence.
However, the jury’s guilty verdict demonstrated that it dis-
believed the defendant’s witnesses and rejected the endless
possible alternative explanations. See United States v.
Wilson, 922 F.2d 1336, 1338-39 (7th Cir. 1991). We will not
question the jury’s credibility determinations. Therefore,
weighing the evidence established at trial in the light most
favorable to the prosecution, as we must, it is impossible for
the defendant to show that no rational trier of fact could
have found that he constructively possessed the seventy-
four firearms on or about January 23, 2001. We affirm the
jury’s verdict.


               C. Sentencing Enhancement
  Finally, Merritt argues that the district court erred
in imposing a six-level enhancement under section
2K2.1(b)(1) of the Sentencing Guidelines.1 The maximum


1
  Reading the verdict form, the jury convicted Merritt of posses-
sion of “approximately 74 firearms and numerous rounds of
ammunition as a convicted felon on January 23, 2001.” Hence, it
seems to this court that at sentencing, the district court’s work
had been done for it; because the jury had already found that he
                                                  (continued...)
No. 02-4211                                                    17

statutory penalty for a violation of 18 U.S.C. § 922(g)(1)
is ten years’ incarceration. Prior to the six-level enhance-
ment, Merritt’s offense level was twenty-two, with a cor-
responding sentencing range of fifty-one to sixty-three
months. U.S.S.G. Sentencing Table. After the enhancement,
his offense level was twenty-eight and the district court
sentenced him to 108 months incarceration. Merritt asserts
that we should extend the protections of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), overrule our own prior
decisions and the decisions of numerous other circuits, and
hold that although his sentence is less than the statutory
maximum, whether Merritt constructively possessed each
of the seventy-four firearms had to be proved beyond a
reasonable doubt and submitted to the jury. We decline to
do so.
  So long as the total sentence does not exceed the relevant
maximum statutory penalty, under this court’s current
precedent, a district court need only find a sentencing factor
by a preponderance of the evidence—even if its application
more than doubles a defendant’s guideline sentence. See,
e.g., Harris v. United States, 536 U.S. 545, 549 (2002);
United States v. Johnson, 342 F.3d 731, 735-36 (7th Cir.



(...continued)
possessed “approximately 74” firearms on January 23, the court’s
inquiry into that issue was unnecessary. However, the district
court had instructed the jury that “[i]n order to return a verdict
of guilty on Count One of the Indictment, you must find that the
Defendant possessed at least one of the firearms . . . listed in
Count One.” Furthermore, during the sentencing hearing, the
government stated, “[T]he jury found the defendant guilty in
Count One, having possessed at least one of the firearms . . . .”
Consequently, the guilty verdict could have been the result of the
jury’s conclusion that Merritt possessed only one firearm on or
about January 23, 2001. The number of weapons possessed by the
defendant was therefore very much at issue during sentencing.
18                                             No. 02-4211

2003) (holding that relevant conduct need only be proved by
a preponderance where the defendant’s sentence was
increased from ten to seventeen years, but noting that “due
process considerations may, at some point, require a greater
showing for a dramatic increase”) (citations omitted);
United States v. Rodriguez, 67 F.3d 1312, 1323 (7th Cir.
1995) (upholding sentencing increase from a range of fifty-
one to sixty-three months to life imprisonment under
preponderance standard). But cf. United States v. Boos, 329
F.3d 907, 910 (7th Cir. 2003) (refusing to choose between a
clear and convincing standard and the preponderance
standard where the enhancement resulted in the addition
of more than seventeen additional years of incarceration,
which the court found “exceptional,” finding instead that
evidence supported the sentence under either standard).
Here the evidence established not only by a mere prepon-
derance, but also clearly and convincingly, see supra Part
II.B., that Merritt constructively possessed seventy-four
firearms on or about January 23, 2001. The district court’s
sentence is affirmed.


                     III. Conclusion
  For the foregoing reasons, the judgment of conviction and
sentence of the district court are AFFIRMED.
No. 02-4211                                         19

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—3-22-04
