                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1721
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Billy Gene Howard,                      *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 19, 2004
                                Filed: June 28, 2005 (Corrected: 07/06/05)
                                 ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

        A jury convicted Billy Gene Howard on possession of a firearm, possession
of stolen firearms, and use of methamphetamine while possessing a firearm, pursuant
to 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(e), 922(j), and 924 (a)(2). Howard appeals
the district court's1 denial of his motions for judgment of acquittal and new trial,
based on insufficient evidence. He also appeals the sentence, claiming the court
imposed an improper offense level under the Armed Career Criminal Guidelines
because he did not possess the firearm "in connection with" a burglary.

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       On January 5, 2005, this court affirmed, but stayed the mandate pending the
Supreme Court's resolution of United States v. Booker, 543 U.S. --, 125 S. Ct. 738
(2005). See Administrative Order Regarding Blakely Cases, United States Court of
Appeals for the Eighth Circuit, Sept. 27, 2004. This court now vacates the opinion
of January 5, 2005, and files this substituted opinion, which adds this paragraph and
Part III.

      On January 14, 2002, Howard picked up his brother and his brother's girlfriend,
Dawn Hanawalt, in order to assist his brother in avoiding an outstanding arrest
warrant on methamphetamine charges. Hanawalt, working with law enforcement,
disclosed their location to the Iowa Division of Narcotics Enforcement, and agreed
to meet with Officer Jerry Spencer.

       Hanawalt informed the officer they were staying in Room 51 of a local motel.
During the meeting, the two saw Howard drive up in a van, step out, and pace around
in front of the motel. With assistance from the local sheriff, Officer Spencer headed
towards the motel room to arrest Howard's brother. Before entering, however, the
officers arrested Howard, and during a pat-down found a key to Room 51 and drug
paraphernalia.

      Entering Room 51, the officers arrested Howard's brother and searched the
room. Searching Howard's van pursuant to warrant, officers discovered a small
amount of methamphetamine in the driver-side visor and two shotguns in the back of
the van. The guns turned out to be stolen. No fingerprints were recovered from them.

       At the close of the government's case, Howard moved for a judgment of
acquittal, which the court denied. After trial, Howard sought a new trial, claiming
insufficiency of evidence. The district court also denied this motion. At sentencing,
the court accepted the Presentence Investigation Report, over Howard's objection,
finding that he "possessed the firearms in connection with another felony offense on

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August 24, 2001, when he participated in the burglary of a residence in Cedar Falls,
Iowa." The court sentenced Howard to 300 months in prison (300 months for the
felon-in-possession charge, and 120-month concurrent terms for each of the other two
counts) based on an offense level of 34 under the Armed Career Criminal Guidelines,
U.S.S.G. § 4B1.4(b)(3)(A).



                                           I.
        Howard appeals the denial of his motions for judgment of acquittal and new
trial, claiming the government failed to sufficiently prove he possessed the firearms,
an element of all three counts. See 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(e), 922(j),
and 924 (a)(2). This contention presents two issues, each with a distinct standard of
review.

      This court reviews de novo the denial of a motion for judgment of acquittal.
United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004). This court
reverses

      only if no reasonable jury could have found the defendant guilty beyond
      a reasonable doubt. This standard is quite strict; we will not lightly
      overturn the jury's verdict. If the evidence rationally supports two
      conflicting hypotheses, the reviewing court will not disturb the
      conviction. [T]he government's evidence need not exclude every
      reasonable hypothesis of innocence.

Id. (alteration in original, internal quotations and citations omitted).

      As to the motion for new trial, this court "will affirm a district court's ruling
absent a 'clear and manifest abuse of discretion.'" United States v. Frank, 354 F.3d
910, 916 (8th Cir. 2004), quoting United States v. Jiminez-Perez, 238 F.3d 970, 974
(8th Cir. 2001). A district court grants a motion for new trial only if "the evidence

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weighs heavily enough against the verdict that a miscarriage of justice may have
occurred." Id.

       Viewing the evidence most favorably to the government, this court finds that
a reasonable juror would not have reasonable doubt as to Howard's possession of the
shotguns. Possession may be actual or constructive. See United States v. Jackson,
365 F.3d 649, 655 (8th Cir. 2004). Constructive possession requires that defendant
"has dominion over the premises where the firearm is located, or control, ownership,
or dominion over the firearm itself." Id. Although constructive possession may be
established by circumstantial evidence alone, the government must show a sufficient
nexus between the defendant and the firearm; mere proximity is insufficient. Id.

        The government presented sufficient evidence linking Howard to the burglary
of the shotguns. The owner of the guns testified that on August 24, 2001, he
discovered that his home was burglarized and missing two shotguns. A neighbor
testified to seeing a van in the neighborhood while jogging early the morning of
August 23, later identifying Howard's van as identical to it.

      Howard's burglary was corroborated by testimony from fellow inmates at the
county jail. According to one inmate, Howard admitted that he and Brian
Luchtenberg stole the two shotguns and put them in his van. Another inmate testified
to overhearing this conversation, and that Howard would blame his brother for the
burglary.

      At trial, Howard testified he was unaware of the guns in the van, which were
found under the back seat, covered by a blanket, not readily visible. Howard said he
had seen the guns twice before, at the home of Luchtenberg, and in his brother's
possession. He believed that his brother and a friend had stolen the guns from
Luchtenberg and put them in his van without his knowledge.



                                        -4-
      A reasonable jury could disregard Howard's testimony as self-serving. See
United States v. Ramirez-Jiminez, 967 F.2d 1321, 1328 (8th Cir. 2004). Howard
erroneously claims that because no evidence contradicted his testimony, the jury
improperly discredited his story. A jury is not required to accept exculpatory
testimony, even if unrebutted. Id.

       The government sufficiently connected Howard with the stolen guns. The
district court properly denied his motion for judgment of acquittal. In addition, the
evidence at trial does not weigh so heavily against the verdict that a miscarriage of
justice occurred. The district court's denial of the motions for acquittal and new trial
are affirmed.

                                           II.
       Howard also appeals the sentence, claiming that the court erred by assessing
him an offense level of 34, because it is not authorized by U.S.S.G. § 4B1.4(b)(3)(A),
which requires that the defendant "used or possessed the firearm . . . in connection
with . . . a crime of violence."

       Howard concedes that burglary is a crime of violence. See Jackson, 365 F.3d
at 653, citing 18 U.S.C. § 924(c)(3). Howard contends only that the court improperly
found that stealing a firearm during a burglary is possession "in connection with" a
crime of violence.

       The district court's interpretation of the sentencing guidelines itself is a pure
legal question, subject to de novo review. United States v. Mathijssen, 406 F.3d 496,
498 (8th Cir. 2005). True, section 4B1.4(b)(3)(A) does not define the phrase "in
connection with." However, under section 2K2.1(b)(5) this court defines "in
connection with" to mean




                                          -5-
      that a firearm [1] must have some purpose or effect with respect to and
      [2] must facilitate, or have the potential of facilitating another felony
      offense; its presence or involvement cannot be the result of accident or
      coincidence.

United States v. Fredrickson, 195 F.3d 438, 439-40 (8th Cir. 1999), quoting United
States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997) (internal quotations omitted,
numbers added). In these cases, this court was following the Supreme Court's
decision in Smith v. United States, 508 U.S. 223, 238 (1993).

       In light of precedent, this court finds that "in connection with" means the same
in section 4B1.4(b)(3)(A) as in section 2K2.1(b)(5). See United States v. Gary, 74
F.3d 304, 317 (1st Cir. 1996); see also United States v. Hedger, 354 F.3d 792, 795
(8th Cir. 2004) (stealing firearm from a gunshop justifies an enhancement under §
2K2.1(b)(5)); United States v. Kenney, 283 F.3d 934, 936-38 (8th Cir. 2004) (stealing
firearm from parents' home justifies an enhancement under § 2K2.1(b)(5)).

        After correctly interpreting the language of section 4B1.4(b)(3)(A), the district
court made factual findings, which are reviewed for clear error. See Mathijssen, 406
F.3d at 498. The evidence at trial and the grand jury testimony of Brian Luchtenberg
(introduced at the sentencing hearing) support the court's findings that the shotguns
were the object of the burglary and that Howard purposely took them. Luchtenberg
described how he and Howard broke into the home and stole only the firearms and
one piece of stereo equipment. According to Luchtenberg, Howard carried out one
of the guns, still in its case, and put it in the van. Thus, the court correctly found the
first prong of Fredrickson satisfied.

       The evidence also supports the finding that the gun had the potential of
facilitating the burglary. At any time during the burglary, Howard could brandish the
gun or threaten injury or death, whether or not it was loaded. The gun's presence was
neither accidental nor coincidental. See Fredrickson, 195 F.3d at 439-40.

                                           -6-
Accordingly, Howard was properly sentenced as an armed career criminal under
U.S.S.G. § 4B1.4(b)(3)(A).

                                         III.
       Howard claims his sentence violates the Sixth Amendment because the district
court enhanced the sentence for possession of a firearm in connection with a crime
of violence, based upon judicial findings of fact. Howard raises this issue for the first
time on appeal. This court reviews for plain error. See United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005) (en banc).

       Applying the guidelines as mandatory, the district court made factual findings
neither admitted by Howard nor found by a jury beyond a reasonable doubt – which
violates the Sixth Amendment. See Booker, 125 S.Ct. at 756. Howard must prove
the error affected his substantial rights. See Pirani, 406 F.3d at 552-53. He "must
show a ‘reasonable probability,’ based on the appellate record as a whole, that but for
the error he would have received a more favorable sentence." Id. at 552. Nothing in
the record indicates the district court would have imposed a more favorable sentence
absent the error. Thus, Howard is not entitled to plain-error relief.

      The judgment of the district court is affirmed.

                        ______________________________




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