                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1676
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                                   Warnell Reid,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                           Submitted: January 15, 2016
                               Filed: July 5, 2016
                                ____________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

      A jury convicted Warnell Reid of possession of a firearm as a previously
convicted felon. See 18 U.S.C. § 922(g)(1). The district court determined that Reid
was subject to a mandatory minimum sentence of 180 months’ imprisonment pursuant
to 18 U.S.C. § 924(e), and sentenced him to 188 months in prison. Reid appealed,
and this court vacated the sentence and remanded for resentencing, because § 924(e)
was inapplicable to Reid. United States v. Reid, 769 F.3d 990, 995 (8th Cir. 2014).
On remand, the district court* sentenced Reid to 96 months’ imprisonment, a sentence
at the top of the revised advisory guideline range. Reid appeals and raises several
issues relating to his sentence. We affirm.

                                          I.

       The prosecution arose from events that transpired when law enforcement
officers executed an arrest warrant for Earnestine Graham, Reid’s girlfriend, at her
residence in November 2011. At the time, Reid was on parole for three felonies in
Missouri: robbery, armed criminal action, and possession of a controlled substance
in a correctional facility.

       After arresting Graham without incident, officers searched the home. In a first-
floor bedroom, officers discovered a semiautomatic SKS assault rifle with a loaded
30-round magazine attached to the weapon, a loaded twelve-gauge shotgun, and a
disassembled .44 caliber revolver. Officers also found in the bedroom several of
Reid’s possessions, including a cell phone, wallet and identification, articles of
clothing, a to-do list Reid had written the day before, and two folders containing
documents in Reid’s name.

        Graham told the officers that Reid lived at the residence and that the firearms
belonged to him. As officers were placing the weapons in their vehicle, Reid arrived
at the residence and parked his car nearby. Officers arrested Reid and recovered keys
in his possession that opened the front door of the residence and a padlock in the
home’s kitchen.



      *
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.

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        A grand jury charged Reid with unlawful possession of a firearm as a
previously convicted felon, and the case proceeded to trial. There was no dispute that
Reid was a convicted felon, but Reid denied that he possessed a firearm. The
firearms and other evidence seized at the home were received in evidence. Graham
testified that Reid had purchased the assault rifle and shotgun. She also said that after
Reid began living at the residence in September 2011, he brought the firearms into
the home and kept them in a first-floor bedroom closet with a combination lock. She
explained that Reid removed the firearms from the closet the day before the search
while he was under the influence of narcotics.

       Reid testified at trial and denied living at Graham’s residence. He testified that
he left his papers and the to-do list at the residence on the day before the search, and
he claimed that nearly all of the clothing seized belonged to Graham. Reid said he
“had nothing to do” with the firearms in the house. The jury found Reid guilty, and
a sentencing and appeal followed.

      On remand from the first appeal, the district court held a resentencing hearing.
The court received evidence, determined an advisory guideline range of 77 to 96
months’ imprisonment, and imposed a sentence of 96 months, to be served
consecutive to a sentence that Reid was serving in Missouri. Reid appeals the
sentence, raising claims of procedural error and substantive unreasonableness. We
review the district court’s interpretation of the sentencing guidelines de novo and its
factual findings for clear error. United States v. Sigillito, 759 F.3d 913, 940 (8th Cir.
2014).

                                           II.

       Reid argues that the district court erred in allowing the government on remand
to add evidence to the existing record. Our prior opinion, however, did not address
the issues raised on remand or limit the scope of the proceedings. The district court

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was thus permitted to consider any relevant evidence that it could have received at
Reid’s first sentencing hearing. United States v. Kendall, 475 F.3d 961, 964 (8th Cir.
2007).

        Reid’s first claim of procedural error is that the district court incorrectly
determined that his base offense level was 22. Under USSG § 2K2.1(a)(3), a
defendant convicted for unlawful possession of a firearm is assessed a base offense
level of 22 when (1) “the offense involved a . . . semiautomatic firearm that is capable
of accepting a large capacity magazine,” and (2) “the defendant committed any part
of the instant offense subsequent to sustaining one felony conviction of either a crime
of violence or a controlled substance offense.” A large capacity magazine is one that
can accept more than fifteen rounds of ammunition. USSG § 2K2.1, comment. (n.2).

       Reid argues that the district court impermissibly relied on the presentence
report and never made a finding that any of the firearms were capable of accepting
a large capacity magazine. The presentence report is not evidence, but if a defendant
does not object to facts set forth in the report, then the district court may accept those
facts as true for purposes of sentencing. United States v. Moser, 168 F.3d 1130, 1132
(8th Cir. 1999). Reid never objected to portions of the report stating that the assault
rifle could accept a large capacity magazine. The court thus did not err when it
adopted those facts without making a separate finding. The trial record, moreover,
contains abundant evidence to show that the assault rifle was semiautomatic and
capable of accepting a large capacity magazine.

       Reid also objects that he never received notice in the indictment that his
sentence could be enhanced based on possession of a firearm that could accept a large
capacity magazine. That the assault rifle was capable of accepting a large capacity
magazine, however, did not increase the statutory minimum or maximum punishment,
and it was thus not an element of the violation under 18 U.S.C. § 922(g)(1). See
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). As such, Reid was not

                                           -4-
entitled to notice of the guideline enhancement in the indictment. See United States
v. Okai, 454 F.3d 848, 851 (8th Cir. 2006).

        Reid next argues that the district court erred in applying an adjustment for
obstruction of justice under USSG § 3C1.1. That guideline provides for a two-level
increase if the district court finds by a preponderance of the evidence that a defendant
committed perjury, i.e., that he willfully testified falsely as to a material matter.
USSG § 3C1.1 & comment. (n.4(b)); United States v. Dunnigan, 507 U.S. 87, 94-95
(1993). To apply the adjustment, the district court must make a finding of perjury
that is independent of the jury’s verdict. Dunnigan, 507 U.S. at 95. It is preferable
for the district court to address each element of perjury in a separate and clear finding,
but it is sufficient if the court makes a finding that “encompasses all of the factual
predicates for a finding of perjury.” Id.; see United States v. Nshanian, Nos. 14-2715
& 14-2937, 2016 WL 2342909, at *3 (8th Cir. May 4, 2016). We review the district
court’s finding for clear error. United States v. Flores, 362 F.3d 1030, 1037 (8th Cir.
2004).

        Reid contends that the district court simply relied on the jury’s verdict to
support the adjustment. The court did observe that the jury disbelieved Reid’s denial
that he possessed the firearms, but the court did not rely solely on the jury’s verdict.
The court made these findings: “I do find by a preponderance of the evidence that
this enhancement is supportable based on the evidence and on the ultimate decision
by the jury to convict.” And: “I think there’s definitely a basis by a preponderance
of the evidence that . . . this enhancement is appropriate.” The court referred to the
trial transcript, the government’s sentencing memorandum, and the parties’ arguments
at sentencing in support of its conclusion. We conclude that the court’s statements
on the record are sufficient to show an independent finding that Reid had perjured
himself when he denied possessing the firearms. See United States v. Kessler, 321
F.3d 699, 703 (8th Cir. 2003).



                                           -5-
       Reid also complains that the district court did not find each element necessary
to support a finding of perjury. The findings are indeed slim on the constituent
elements. But our cases have affirmed an independent finding of obstruction of
justice, even without explicit mention of each factual predicate, where the finding is
strongly supported by the record. E.g., Nshanian, 2016 WL 2342909, at *3; Kessler,
321 F.3d at 703; United States v. Brown, 311 F.3d 886, 890 (8th Cir. 2002); United
States v. Esparza, 291 F.3d 1052, 1055-56 (8th Cir. 2002). There is no doubt here
that Reid’s denial was material—whether he possessed the firearms was the central
issue at trial. And we see no plausible argument that Reid’s false testimony was the
result of confusion, mistake, or faulty memory. Graham testified that Reid purchased
the guns and brought them into the residence. Reid possessed keys to Graham’s
residence, and he knew the combination to the lock on the closet where the firearms
were stored. Police found Reid’s possessions in the room with the weapons. The
record strongly supports a conclusion that Reid’s testimony was willful, and a remand
for clarification is unnecessary on this record. The district court did not clearly err
in applying the two-level increase under § 3C1.1.

      Reid next disputes the district court’s computation of his criminal history score
under the guidelines. The court assessed three criminal history points for Reid’s prior
conviction for possession of a controlled substance in a correctional facility. In 1998,
while serving a twenty-five year prison sentence in Missouri for robbery, Reid was
sentenced to a consecutive term of ten years for committing a drug offense while
incarcerated. The ten-year term is scheduled to begin when the robbery sentence
expires in 2017.

       The guidelines provide that three points are added “for each prior sentence of
imprisonment exceeding one year and one month.” USSG § 4A1.1(a). Reid asserts
that because he had not begun to serve the ten-year consecutive term in Missouri
when he was sentenced in this case, the state drug conviction does not count as a
“prior sentence of imprisonment.”

                                          -6-
       Reid’s argument is premised on commentary to USSG § 4A1.2: “To qualify
as a sentence of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence (or, if the defendant escaped, would have served
time). See § 4A1.2(a)(3) and (b)(2).” Id., comment. (n.2) (emphasis added). Reid
argues that no criminal history points should be assessed, because he has not yet
“actually served” any of the consecutive sentence. But the provisions cited in the
commentary elucidate the meaning of this passage. Sections 4A1.2(a)(3) and (b)(2)
specify that if a term of imprisonment is suspended, then it does not count as a
“sentence of imprisonment.” In other words, where a State takes “affirmative steps”
designed to relieve a defendant of his obligation to serve time in prison, the term of
imprisonment formally imposed by the court does not count. United States v.
Thompson, 925 F.2d 234, 235 (8th Cir. 1991).

       Where, on the other hand, the State imposes an obligation to serve a term of
imprisonment for a prior conviction, the conviction results in a prior sentence of
imprisonment. The parenthetical in the commentary concerning escaped prisoners
shows that actual service of a sentence is not a universal prerequisite. We held in
Thompson, for example, that where authorities simply failed to pick up a defendant
after sentencing, and he avoided prison through inadvertence or negligence of the
State, his sentence still constituted a “sentence of imprisonment.” Id. at 235-36. The
Fifth Circuit in United States v. Duffy, No. 93-5076, 1994 WL 395107, at *2 (5th Cir.
July 8, 1994), rejected Reid’s precise argument. The court explained that adopting
Reid’s interpretation of the commentary would reward aberrant behavior by treating
a harsher consecutive sentence yet to be served more leniently than a concurrent
sentence already in progress. We agree. Reid was sentenced to a term of
imprisonment in 1998, and the State has done nothing to relieve him of the obligation




                                         -7-
to serve it. The district court therefore properly assessed three criminal history points
based on the 1998 conviction.**

       Reid next asserts that the district court violated the procedural requirements of
Federal Rule of Criminal Procedure 32 by considering an assault conviction for which
the judge—then serving in a Missouri state court—sentenced Reid. We concluded
in United States v. Lovelace, 565 F.3d 1080, 1089-93 (8th Cir. 2009), that a district
court erred under Rule 32 by relying on personal knowledge of facts that were not
included in the presentence report or otherwise disclosed to the defendant before
sentencing. In Reid’s case, however, the court relied on certified judicial records to
resolve an issue concerning the prior assault conviction. The court did not rely on
personal knowledge or other information that was unavailable to Reid before the
hearing. There was thus no procedural error.

       Reid argues finally that even if there was no procedural error at sentencing, the
district court imposed an unreasonable sentence. We review the decision under a
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). Because the sentence is within the advisory guideline range, we presume it
is reasonable. United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009);
see Rita v. United States, 551 U.S. 338, 347 (2007).

      Reid argues that the district court refused at the resentencing hearing to
consider his post-sentencing accomplishments. The court noted, however, that Reid
had obtained his General Educational Development diploma, and it heard Reid’s
arguments concerning his other post-sentencing activities. The court has considerable

      **
        Reid also challenges the district court’s assessment of one criminal history
point under USSG § 4A1.1(e) based on a 1992 conviction for armed criminal action.
This point did not affect Reid’s criminal history category, so it is unnecessary to
address the contention. See United States v. Manuel, 944 F.2d 414, 416-17 (8th Cir.
1991).

                                          -8-
discretion in determining how much weight to accord the various factors in 18 U.S.C.
§ 3553(a), and it was permissible for the court to conclude that factors favoring a
sentence within the advisory range outweighed evidence of Reid’s rehabilitation. See
Ruelas-Mendez, 556 F.3d at 657-58. The court did not abuse its discretion in denying
Reid’s request for a downward variance from the advisory guideline range.

                                 *       *      *

      The judgment of the district court is affirmed.
                     ______________________________




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