                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2341
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Eugene Darwin Porter,                   *
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: December 15, 2004
                              Filed: June 2, 2005
                                   ___________

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY,
      Circuit Judges.
                             ___________

RILEY, Circuit Judge.

         A jury convicted Eugene Darwin Porter (Porter) of one count of being a felon
in possession of a firearm (Count 1), in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and of five counts of falsely representing a social security number (Counts
2 - 6), in violation of 42 U.S.C. § 408(a)(7)(B). The district court1 entered judgment
against Porter, and sentenced him to a total of 180 months’ imprisonment. Porter


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
appeals, contending (1) insufficient evidence supports the convictions on Counts 2
through 6; (2) the United States Sentencing Guidelines (Guidelines) are
unconstitutional; (3) the district court violated Porter’s Sixth Amendment rights by
sentencing him based on judge-made findings; and, (4) regardless of the
constitutionality of the Guidelines, the district court misapplied them in sentencing
Porter. We affirm Porter’s convictions and sentence.

I.     BACKGROUND
       On February 9, 2003, Benjamin Porter (Benjamin) awoke around 5:00 a.m. to
the sound of bullets ripping through his apartment. When Benjamin looked out a
front window, he saw his father, Porter, driving away. Porter was charged with
(Count 1) and convicted of being a felon in possession of a firearm. Porter does not
challenge that conviction; instead, he challenges the sufficiency of the evidence to
support his convictions on Counts 2 through 6 for falsely representing a social
security number. Accordingly, we will discuss the evidence adduced at trial on those
five counts.

       Benjamin testified at trial that he had been at Porter’s apartment before the
shooting and had seen (1) “applications for credit cards that had my social security
number on it that my father had signed,” and (2) “a US Cellular phone bill that had
my name on it.” Benjamin testified he moved out of his father’s apartment because
he was so upset his father was using Benjamin’s social security number without his
knowledge to open accounts. Benjamin also testified that, about a week or two before
the shooting, he told Porter he “knew everything that was going on,” informing Porter
that Benjamin knew Porter was using Benjamin’s social security number. When
asked why Porter may have shot at Benjamin, Benjamin testified Porter was angry
with Benjamin “[b]ecause [Benjamin] had found out about [Porter] using
[Benjamin’s] social security number, and that [Benjamin] had been into the bank and
asked the bank about it, and that [Benjamin] had been to the police station and
reported it to them.”

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       According to the government, Porter used Benjamin’s social security number
to apply for credit cards and mobile telephone service. The government produced a
number of exhibits for the jury to consider for Counts 2 through 6. To prove Count
2, the government submitted Exhibit 1, a credit card application dated August 23,
1999, and obtained from the business records of Capital One Bank. This credit card
application was completed using (1) Benjamin’s name, (2) Benjamin’s social security
number, (3) Benjamin’s purported signature, (4) a date of birth of August 13, 1978,
and (5) Porter’s address. Benjamin’s date of birth is August 13, 1982, while Porter’s
date of birth is January 14, 1943. Benjamin testified he did not “have anything to do
with filling out this application.” Benjamin also testified he recognized the font used
on the application as one from Porter’s typewriter, and he recognized his father’s
handwriting on the application, based on seeing his father’s handwriting a number of
times in the past.

       To prove Count 3, the government submitted Exhibit 2, a credit card
application dated November 8, 1999, and obtained from the business records of
Capital One Bank. This credit card application was completed using (1) Benjamin’s
name, (2) Benjamin’s social security number, (3) Benjamin’s purported signature,
(4) a date of birth of August 13, 1978, and (5) Porter’s address. Benjamin testified
he did not sign, or have anything to do with, this credit card application. Benjamin
also testified he recognized his father’s handwriting on the application.

      To prove Count 4, the government submitted Exhibit 8, a U.S. Cellular service
agreement dated January 4, 2000, and obtained from the business records of U.S.
Cellular. This telephone service agreement was completed at the store using
(1) Benjamin’s name, (2) Benjamin’s social security number, (3) Benjamin’s
purported signature, (4) a date of birth of January 14, 1943, and (5) Porter’s address.
Benjamin testified he did not “have anything to do with filling this item out,” and he
recognized his father had signed Benjamin’s name on the application.



                                         -3-
       To prove Count 5, the government submitted Exhibit 4, a credit card
application dated June 4, 2002, and obtained from the business records of Capital One
Bank. This credit card application was completed using (1) Benjamin’s name,
(2) Benjamin’s social security number, (3) Benjamin’s purported signature, (4) a date
of birth of August 13, 1982, and (5) Porter’s address. Benjamin testified he did not
sign this credit card application, but could tell his father signed the application.
Benjamin testified his father’s typewriter was used to complete the application.
Benjamin also testified he had nothing “to do with the creation of Government’s
Exhibit No. 4.”

       To prove Count 6, the government submitted Exhibit 5, a credit card
application dated July 30, 2002, and obtained from the business records of Capital
One Bank. This credit card application was completed using (1) Benjamin’s name,
(2) Benjamin’s social security number, (3) Benjamin’s purported signature, (4) a date
of birth of January 14, 1943, and (5) Porter’s address. Benjamin testified he did not
sign this credit card application. Benjamin also testified he noticed his father had
signed Benjamin’s name to the application. Benjamin testified he did not have
“anything to do with filling out this application.”

      At trial, the government introduced Exhibit 53, a plea agreement Porter and his
attorney signed before deciding to proceed to trial. The plea agreement contained the
following stipulated facts:

             On or about July 30, 2002, in the Northern District of Iowa,
      defendant submitted an application for a credit card to Capital One
      credit card service. On the application, defendant fraudulently used his
      son’s name (Benjamin Porter) and his son’s social security number.
      Defendant used the social security number in order to conceal his true
      identity and with intent to deceive. Defendant submitted similar credit
      card applications, each bearing his son’s social security number, on
      August 23, 1999, November 8, 1999, and June 4, 2002. Also, on


                                        -4-
      January 4, 2000, fraudulently used his son’s social security number on
      an application to US Cellular for mobile telephone service.

The government also produced other exhibits displaying Benjamin’s actual signature,
including a copy of Benjamin’s actual social security card, and also exhibits
containing Porter’s actual signature.

       Porter testified he does not know his social security number without looking
it up. Porter also testified he did not use his typewriter to prepare Exhibit 1, and his
handwriting was not contained on Exhibits 1, 2, 5 and 8. Porter also submitted
evidence showing he had acquired credit cards and telephone service in his own
name, arguing he had no reason to use Benjamin’s information to acquire these
services.

        A jury convicted Porter of Counts 2 through 6. Based on the Guidelines, the
district court applied a four-level enhancement under U.S.S.G. § 2K2.1 for using a
firearm in connection with another felony offense; a two-level enhancement under
U.S.S.G. § 3C1.1 for obstruction of justice; and a seven-level upward departure under
U.S.S.G. § 5K2.6 based on Porter’s discharge of a high-powered weapon into
Benjamin’s home. The district court made “the specific finding by a preponderance
of the evidence that Defendant, using a high-powered firearm and ammunition, shot
several live rounds through the walls of his son’s residence. Had it not been for the
bathtub on the victim’s porch deflecting some of the fire power, there could have
been a death or life-threatening injury.” Finally, the district court announced an
upward departure for “underrepresentation of criminal history under [section] 4A1.3
. . . would be a valid upward departure as well,” but concluded the departure under
section 5K2.6 was appropriate by itself (as the sentence reached the statutory
maximum) such that the use of section 4A1.3 was unnecessary. Based on these
sentencing determinations, the district court sentenced Porter to a total of 180
months’ imprisonment. Specifically, the district court sentenced Porter to the


                                          -5-
statutory maximum of 120 months’ imprisonment on Count 1 and the statutory
maximum of 60 months’ imprisonment on Counts 2 through 6. The district court
ordered the 60-month sentences for Counts 2 through 6 to run concurrently to each
other, but consecutively to the 120-month sentence for Count 1. The district court
noted on the record that it believed “this sentence is appropriate under all the facts
and circumstances of this case.”

II.    DISCUSSION
       A.    Sufficiency of the Evidence
       Porter contends insufficient evidence supports the convictions on Counts 2
through 6. Porter argues “[t]he only evidence submitted in support of these charges
was the uncorroborated testimony of the defendant’s son, Ben Porter, which
defendant took the stand to dispute.” Porter confronts “a high hurdle” when attacking
the sufficiency of the evidence supporting his convictions on Counts 2 through 6, “as
we must employ a very strict standard of review on this issue.” United States v.
Cook, 356 F.3d 913, 917 (8th Cir. 2004). “We must view the evidence in the light
most favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (citation omitted). We will reverse only if we
conclude no reasonable jury could have found Porter guilty. Id.

      The jury convicted Porter of violating the following statute:

             Whoever . . . for the purpose of obtaining (for himself or any other
      person) any payment or any other benefit to which he (or such other
      person) is not entitled, or for the purpose of obtaining anything of value
      from any person, or for any other purpose . . . with intent to deceive,
      falsely represents a number to be the social security account number
      assigned by the Commissioner of Social Security to him or to another
      person, when in fact such number is not the social security account
      number assigned by the Commissioner of Social Security to him or to


                                         -6-
      such other person . . . shall be guilty of a felony and upon conviction
      thereof shall be fined under Title 18 or imprisoned for not more than
      five years, or both.

42 U.S.C. § 408(a)(7)(B). To convict Porter under section 408(a)(7)(B), the
government had to prove beyond a reasonable doubt that Porter, (1) for any purpose,
(2) with the intent to deceive, (3) represented a social security number to be his or
another person’s, (4) which representation was false. United States v. McKnight, 17
F.3d 1139, 1143 (8th Cir. 1994).

       We conclude the jury had more than sufficient evidence upon which to convict
Porter for falsely representing a social security number. As detailed in the
background section, the evidence supports the jury’s verdict that Porter submitted
four applications for credit cards and one application for mobile telephone service
using Benjamin’s name and social security number. This conclusion is buttressed by
Benjamin’s testimony, the applications obtained from the business records of Capital
One Bank and U.S. Cellular, Porter’s own admissions in his plea agreement, and
Porter’s early-morning shooting spree at Benjamin’s residence a week or two after
Benjamin confronted Porter about misusing Benjamin’s social security number.
Although Porter certainly told his side of the story, the jury obviously did not believe
him. We enjoy no greater vantage point on appeal than did the jury at trial, and we
have no right to usurp the jury’s role to judge the facts and make credibility findings.
United States v. Dabney, 367 F.3d 1040, 1043 (8th Cir. 2004) (“Regardless of how
we feel reading the record, we are utterly unable to judge the credibility of trial
witnesses, including [the defendant]’s. It is axiomatic that we do not review
questions involving the credibility of witnesses, but leave credibility questions to the
jury.”).

     Porter contends the evidence allows only an inference that he merely possessed
Benjamin’s social security number. While we agree mere possession of a social


                                          -7-
security number cannot sustain a conviction under section 408(a)(7)(B), see
McKnight, 17 F.3d at 1145 (holding mere possession of a false social security number
does not violate section 408(a)(7)(B)), we disagree the evidence established that
Porter merely possessed Benjamin’s social security number. Indeed, Porter’s own
damaging admissions in his plea agreement, as well as the evidence at trial, show
Porter fraudulently used Benjamin’s name and social security number when
submitting applications for credit relationships with Capital One Bank and U.S.
Cellular. Porter even admitted using Benjamin’s “social security number in order to
conceal his true identity and with intent to deceive.” We are hard-pressed to
understand Porter’s contention that the jury had insufficient evidence upon which to
convict. We affirm the jury’s convictions on Counts 2 through 6.2

       B.     Sentencing Issues
       Porter claims he was sentenced in violation of his Sixth Amendment right to
a jury trial, as recognized in Blakely v. Washington, 124 S. Ct. 2531 (2004)
(declaring Washington’s sentencing system unconstitutional). Specifically, Porter
contends he is entitled to be sentenced based only on the findings of the jury. Porter
argues the district court erroneously increased his sentence for obstructing justice,
using a firearm in connection with a felony, and discharging a high-powered weapon
into Benjamin’s home. According to Porter, the Guidelines should only be applied
to the jury’s findings, resulting in a Criminal History Category of II and an Offense
Level of 14, yielding a Guidelines sentencing range of 18 to 24 months’



      2
       Porter filed a motion for a new trial, which the district court denied. To the
extent Porter argues the district court abused its discretion in denying Porter’s motion
for a new trial, we reject that argument. Sufficient evidence supports the jury’s
verdict, and the district court did not abuse its wide discretion in denying Porter’s
motion for a new trial because Porter’s “conviction does not evince a serious
miscarriage of justice such that we must reject the jury’s verdict or the district court’s
sense of justice.” United States v. Walker, 393 F.3d 842, 848 (8th Cir. 2005).

                                           -8-
imprisonment. Thus, Porter contends he can be sentenced only to a maximum of 24
months’ imprisonment.

       During the pendency of this appeal, the Supreme Court determined how
Blakely applies to the Guidelines when the court issued the much-anticipated Booker
decision. See United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the
Supreme Court excised two provisions of the Sentencing Reform Act of 1984,
effectively creating an advisory Guidelines system in which a sentencing court must
“consider Guidelines ranges,” but the advisory system also “permits the court to tailor
the sentence in light of other statutory concerns as well.” Id. at 756-57 (citing 18
U.S.C. § 3553(a)). Under the advisory Guidelines system, courts of appeal review
sentences for unreasonableness. Id. at 765.

        We have recognized “[t]he standard of review will be critically important in
most appeals involving Booker issues.” United States v. Rodriguez-Ceballos, No. 04-
3390, 2005 WL 1131672, at *3 (8th Cir. May 16, 2005). Indeed, the standard of
review is decisive in this case. Porter argues he preserved the Blakely issue at
sentencing. However, he recognizes he “did not specifically object on the authority
of Apprendi3 and the Sixth Amendment right to jury trial in the sentencing hearing
itself.” Alternatively, Porter contends even a plain-error review would entitle him to
relief based on Blakely. The government asserts Porter never raised Apprendi or
Blakely issues in the district court, requiring application of plain-error review. After
reviewing the record, we agree with the government–Porter did not preserve a Sixth
Amendment objection below. Thus, we review Porter’s sentence for plain error,
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (failure to
preserve issue mandates plain-error review), which is a demanding standard not easily
met. See Rodriguez-Ceballos, 2005 WL 1131672, at *3 (citing United States v.
Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004)).


      3
       Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                          -9-
       Because Porter failed to preserve a Blakely issue (now considered a Booker
issue), he must prove plain error, which follows the four-part test discussed in United
States v. Olano, 507 U.S. 725, 732-36 (1993). To establish plain error, Porter must
establish “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.” Johnson
v. United States, 520 U.S. 461, 467 (1997) (internal quotations omitted) (alteration
in original). If Porter establishes these three conditions, we may exercise our
discretion to remand for resentencing “if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotations
omitted) (alteration in original).

       We can assume the district court “committed Booker error by applying the
Guidelines as mandatory, and the error is plain, that is, clear or obvious, at this time,”
in light of Booker. Pirani, 406 F.3d at 550. The critical issue is whether the Booker
error affected Porter’s substantial rights. To meet this third Olano condition, Porter
must establish “a ‘reasonable probability’ that the district court would have imposed
a more favorable sentence under the advisory sentencing guidelines regime mandated
by Booker.” Id. at 547.

       We conclude nothing in the record indicates the district court would have
imposed a more favorable sentence had it known the Guidelines were advisory only.
Indeed, the district court indicated Porter’s “sentence is appropriate under all the facts
and circumstances of this case.” Furthermore, the district court reserved the
opportunity to enhance Porter’s sentence because the Guidelines range
underrepresented Porter’s criminal history. Because Porter has not shown any
likelihood, much less a reasonable probability, that the district court would have
imposed a more favorable sentence under an advisory Guidelines system, we find no
plain error.

      Regardless of the success of his Blakely/Booker argument, Porter also
maintains the district court misapplied the Guidelines in sentencing him. Porter

                                           -10-
contends “the district court abused its discretion by departing upward seven levels for
discharging a firearm at his son’s residence.” Porter argues the district court
impermissibly added seven levels to the offense level for discharging a firearm at
Benjamin’s residence, which already had been considered in the four-level
enhancement for using a firearm in connection with another felony. Specifically,
“Porter concedes that the departure for discharging a firearm was based on a
permissible factor, as this is authorized by [U.S.S.G. §] 5K2.6. However, [Porter
argues] the extent of the departure was unreasonable because in reality the upward
departure was 11 levels and resulted in a sentence that is out of step with the
punishment for similar offenses.”

       Even after Booker, “[w]e review the [interpretation and] application of the
sentencing guidelines de novo and review the district court’s factual findings for clear
error.” United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005) (concluding
“the unreasonableness standard articulated by the Supreme Court in Booker applies
only to the district court’s determination of the appropriate ultimate sentence to
impose based on all the factors in 18 U.S.C. § 3553(a), not to the district court’s
interpretation of the meaning and applicability of the guidelines themselves”).

      The district court imposed a seven-level upward departure under section 5K2.6,
which empowered the district court to increase Porter’s sentence based on the
following language:

      If a weapon or dangerous instrumentality was used or possessed in the
      commission of the offense the court may increase the sentence above the
      authorized guideline range. The extent of the increase ordinarily should
      depend on the dangerousness of the weapon, the manner in which it was
      used, and the extent to which its use endangered others. The discharge
      of a firearm might warrant a substantial sentence increase.




                                         -11-
U.S.S.G. § 5K2.6. As noted by the district court, Porter’s early morning shooting
spree could have killed Benjamin had a fortuitously placed bathtub not been present
to save Benjamin’s life. Porter’s firing of a high-powered weapon into Benjamin’s
residence, potentially killing Benjamin, clearly fits within section 5K2.6’s plain
language. We have little difficulty concluding the district court did not misapply
section 5K2.6 in sentencing Porter.

       We also see nothing in the record or in Porter’s arguments indicating the
district court erroneously applied the enhancements for obstruction of justice or for
the use of a firearm in connection with a felony. Instead, we believe these Guidelines
enhancements specifically apply to Porter’s conduct and are supported by the record.
See U.S.S.G. §§ 2K2.1(b)(5) (requiring a 4-level enhancement for using a firearm in
connection with another felony offense); 3C1.1 (requiring a 2-level enhancement for
obstructing the administration of justice).

      In addition to concluding the district court did not misinterpret or misapply the
Guidelines, we also conclude Porter’s ultimate sentence was not unreasonable. Not
only does Porter’s sentence comport with the Guidelines, the sentence also satisfies
the Booker test for reasonableness as it faithfully follows the congressional charge
to consider other goals in sentencing. See, e.g., 18 U.S.C. § 3553(a)(1) (requiring
courts to consider “the nature and circumstances of the offense and the history and
characteristics of the defendant”); 3553(a)(2)(A)-(C) (requiring courts to consider the
need to impose a sentence “(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; [and] (C) to protect the public from further
crimes of the defendant”); 3553(a)(3) (requiring courts to consider “the kinds of
sentences available”).




                                         -12-
III.   CONCLUSION
       For the reasons discussed, we affirm Porter’s convictions and sentence.
                       ______________________________




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