                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-1258
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
James W. Bell,                         *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 14, 2004
                                Filed: June 21, 2005
                                 ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

      James W. Bell was convicted of being a felon in possession of a firearm. He
appeals the sentence of seventy-seven months imposed by the District Court.1 Bell
argues the District Court erred 1) by denying him a sentencing reduction for
acceptance of responsibility and 2) by enhancing his sentence based on his use of a
firearm in connection with another felony. Bell also claims his sentence is




      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
unconstitutional in light of the Supreme Court's decision in Blakely v. Washington,
124 S. Ct. 2531 (2004).2 As discussed herein, we affirm the District Court.



                                            I.


       On April 25, 2003, Bell appeared at the Missouri Hotel homeless shelter in
Springfield, Missouri, and said he had an urgent matter for coordinator David Bodine.
The front-desk clerk told Bell that Bodine was unavailable and directed him to the
office of case manager Sandy Granger. Upon entering Granger's office, Bell asked her
in a nervous manner if he could close the door, then said he wanted her to know how
urgent the matter was.


        Next, Bell sat down, placed a .22 caliber pistol on Granger's desk with the barrel
pointing toward her chest, and asked her, "Do I have your attention now?" Trial Tr.
at 8. Granger gasped and asked Bell if he would like her to call Bodine, to which Bell
responded affirmatively, telling her to "let [Bodine] know how urgent this matter is."
Id. at 9. Unsure of how Bell would react, Granger did as she was instructed without
mentioning the gun to Bodine. In the few moments before Bodine arrived, Bell placed
the gun back in his coat and told Granger, "I want to show Mr. Bodine how urgent a
matter this is just like I did you." Id. Granger told Bell, "I wouldn't do that if I were
you." Id. at 9–10.


       Bodine then entered Granger's office and closed the door, noticing that Granger
was acting nervous and looking pale. As Bodine sat down, Bell produced the gun
again, aimed it directly at Bodine, this time with his finger on the trigger, and asked


      2
       Bell's appellate brief was filed prior to the Supreme Court's issuance of its
decision in United States v. Booker, 125 S. Ct. 738 (2005).

                                           -2-
once more, "Now do I have your attention?" Id. at 17. Bodine, a former police
officer, grabbed the gun from Bell's hand. Bell then reached into his coat and Bodine,
thinking Bell might have another weapon, grabbed Bell's arm, taking from him a box
of bullets. Bodine subdued Bell after a brief scuffle and told Granger to dial 911.
Granger did so, and the police arrived to arrest Bell. When the police inspected the
gun, they found it was not loaded.


       When questioned by the police, Bell first denied ever having been arrested as
an adult, but after the police checked his record, Bell admitted a previous robbery
conviction. Bell told the police he did not count that conviction, for which he had
been sentenced to ten years in prison, because it was very old. As for his actions, Bell
stated he had taken the gun from a friend with Alzheimer's disease who had
threatened to kill a third party. Bell said he feared the friend would hurt himself or
the third party. Given that the friend lived at the Missouri Hotel, Bell brought the gun
to Bodine because Bodine was in charge there. Bell also admitted he had been
holding the gun since November 2002—some four months.


      Bell was charged with being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded not guilty and was tried by a jury
on September 22, 2003. The government produced five witnesses against Bell, all of
whom Bell's counsel cross-examined. Bell made two motions for judgment of
acquittal based on insufficiency of the evidence, both of which the District Court
denied. Bell also asked the District Court to instruct the jury on the defenses of
coercion, duress, and justification based on Bell's asserted reasons for possessing the
gun. Finding the defenses were not supported by the evidence, the District Court
refused those instructions. The case was submitted to the jury, and the jury found
Bell guilty.




                                          -3-
       At sentencing, Bell made two objections to the presentence investigation
report. First, Bell objected to the failure to reduce his base offense level for
acceptance of responsibility. The District Court overruled this objection, finding that
Bell's pre-trial statements, his decision to go to trial, and his trial testimony were
inconsistent with accepting responsibility for his actions. Second, Bell objected to
an enhancement of his sentence based on his use of a firearm in connection with
another felony. The District Court overruled this objection and imposed the
enhancement, finding that Bell had committed a felony under Missouri law by
exhibiting the firearm in a threatening manner. The District Court's application of the
guidelines resulted in an offense level of 24 and a criminal history score of IV,
providing for a sentencing range of 77–96 months. The District Court sentenced Bell
to the low end of the guideline range, seventy-seven months, and this appeal
followed.


                                           II.


                                           A.


       Bell first argues that the District Court erred by denying him a sentencing
reduction for acceptance of responsibility. Bell claims he went to trial solely to assert
the defense of justification and that he was entitled to the reduction because he never
challenged his factual guilt. The government contends Bell went to trial to put the
government to its burden of proof and that Bell was therefore ineligible for the
reduction. We review the District Court's decision to deny an acceptance-of-
responsibility reduction for clear error. United States v. Patten, 397 F.3d 1100, 1104
(8th Cir. 2005); United States v. Waldman, 310 F.3d 1074, 1079 (8th Cir. 2002).




                                          -4-
       "The sentencing judge is in a unique position to evaluate a defendant's
acceptance of responsibility[, and] the determination of the sentencing judge is
entitled to great deference on review." U.S. Sentencing Guidelines Manual § 3E1.1,
cmt. n.5 (2003). The guidelines define the "acceptance of responsibility" reduction
and provide notes regarding its application. For example, a defendant who falsely
denies or frivolously contests his relevant conduct has not accepted responsibility.
Id. cmt. n.1(a). A defendant convicted at trial may receive the reduction, but only in
"rare situations" where the defendant's purpose at trial was to assert issues unrelated
to factual guilt. Id. cmt. n.2. Specifically, the reduction is "not intended to apply to
a defendant who puts the government to its burden of proof at trial . . . , is convicted,
and only then admits guilt and expresses remorse." Id. As simply stated at oral
argument, Bell was not entitled to the reduction if his trial purpose was to "beat the
rap."


        After reviewing the record, we find Bell's claim that he did not challenge his
factual guilt is contradicted by his trial motions and strategy. As mentioned
previously, counsel for Bell made two motions for judgment of acquittal based on
insufficiency of the evidence, both of which the District Court denied. Bell also
cross-examined all five of the government's witnesses, including an expert who
testified that the gun Bell possessed had moved in interstate commerce.3 Counsel for
Bell first objected to the expert's qualifications, then asked the expert arguably
irrelevant questions as to who may have imported the gun into Missouri, and finally
asked the expert if counterfeit guns were ever manufactured in this country. While
this strategy was consistent with Bell's right of confrontation, it was inconsistent with
relieving the government of its burden of proof at trial. Such tactics were squarely


      3
       Proof that the firearm traveled in interstate commerce was a required element
for Bell's conviction under § 922(g). 18 U.S.C. § 922(g)(1) (2000); Trial Tr. at 56
(referencing Eighth Circuit Manual of Model Jury Instructions (Criminal), Instruction
6.18.922 (2003)).

                                          -5-
aimed at challenging the government's evidence against the defendant. In addition,
if Bell's only purpose at trial was to assert the justification defense, he could have
pleaded guilty after the District Court disallowed the defense. Instead, Bell took his
chances and let the case go to the jury.


       Moreover, we have consistently refused to recognize justification as a defense
where the defendant failed to pursue lawful options, particularly when violating
§ 922(g)(1). See, e.g., United States v. Lomax, 87 F.3d 959, 961–62 (8th Cir. 1996);
United States v. Taylor, 122 F.3d 685, 688–89 (8th Cir. 1997). Although Bell claims
he took the gun to prevent threatened harm to a third party, the District Court
determined this claim was not credible, finding a lack of the requisite "immediacy"
of harm. Trial Tr. at 58. Even crediting Bell's story, we agree that Bell had a number
of lawful options available other than holding the gun for four months, bringing it to
the Missouri Hotel, pointing it at two people, and asking if he had their attention. In
these circumstances, we have no difficulty in sustaining the District Court's refusal
to allow the justification defense.


        Finally, Bell places great emphasis on the guidelines comment that the
acceptance-of-responsibility determination is to be "based primarily upon pre-trial
statements and conduct" of the defendant. U.S. Sentencing Guidelines Manual
§ 3E1.1, cmt. n.2 (2003). This emphasis is misplaced. The language to which Bell
refers applies only to "rare situations" in which the defendant has gone to trial for
purposes other than to challenge factual guilt. Id. By contrast, the guidelines
unequivocally state that the acceptance-of-responsibility reduction is not intended to
apply where, as here, the defendant has put the government to its burden of proof at
trial. Id. Were we to consider Bell's pre-trial conduct, however, we note that Bell
lied to police about his previous felony conviction and only admitted the conviction
after the police learned about it through a criminal background check. Bell's assertion
that he "at first remained silent" about the conviction but later "affirmed" it upon

                                         -6-
direct questioning misrepresents his deceptive conduct. Appellant's Opening Br.
at 15.


       But to be "responsible" is to "answer for one's conduct." Webster's Third New
Int'l Dictionary 1935 (1981). Bell denied his prior felony arrest, he challenged the
evidence against him, he insisted his possession of the gun was justified, and he
showed no remorse until after his conviction. We therefore cannot say the District
Court's decision to deny Bell a sentencing reduction for acceptance of responsibility
was clearly erroneous.


                                          B.


       Pursuant to the guidelines, the District Court made a four-level increase to
Bell's offense level after finding that he had possessed a firearm in connection with
another felony offense. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) &
cmt. n.7 (2003). Specifically, the District Court found that Bell exhibited the firearm
in a threatening manner—a felony under Missouri law. Bell contends there was no
factual or legal basis for finding his actions were objectively rather than subjectively
threatening as required by Missouri case law.


      We review de novo whether Bell's sentence was imposed in violation of law
or as the result of the District Court's incorrect application of the sentencing
guidelines. See 18 U.S.C. § 3742(f)(1) (2000); United States v. Mashek, 406 F.3d
1012, 1017 (8th Cir. 2005). We review for clear error the District Court's factual
findings used to enhance the sentence pursuant to § 2K2.1(b)(5). See Mashek, 406
F.3d at 1017. It is a felony in Missouri to "[e]xhibit[], in the presence of one or more
persons, any weapon readily capable of lethal use in an angry or threatening manner."
Mo. Rev. Stat. § 571.030.1(4) (2000) (emphasis added). Whether the manner of

                                          -7-
exhibition is "threatening" is to be determined objectively and not based on the
victim's subjective perception of danger. State v. Williams, 779 S.W.2d 600, 603
(Mo. Ct. App. 1989) (citing State v. Murry, 580 S.W.2d 555, 557 (Mo. Ct. App.
1979)). Under Missouri law, pointing a firearm at a victim can be an objective threat
even if the victim testifies he did not feel threatened. Murry, 580 S.W.2d at 557.
There is no requirement that the gun be loaded, nor is there an express requirement
of a verbal threat. See State v. Overshon, 528 S.W.2d 142, 143 & n.1 (Mo. Ct. App.
1975).


       We agree with the District Court that Bell possessed the gun in connection with
another felony. The undisputed evidence showed that Bell pointed a gun at two
people, first at Sally Granger and next at David Bodine, and without explanation
asked if he had their attention. In the case of Bodine, Bell had his finger on the
trigger. We need not interpret Bell's ambiguous requests for attention, and it is
"immaterial" that the gun was not loaded at the time. See id. at n.1. This evidence
was a sufficient basis for the District Court's finding that Bell exhibited the gun in an
objectively threatening manner.


      In making this finding, the District Court does not appear to have relied on the
victims' subjective fear. The District Court stated that "pointing a gun at somebody
and asking them if you've got their attention is a threatening action." Sent. Tr. at 12.
Although the District Court plainly considered the victims' perceptions, the fact the
victims actually felt threatened by Bell's conduct did not diminish the objective threat
any more than if they had not felt threatened. See Murry, 580 S.W.2d at 557. We
cannot conclude the District Court improperly relied on the subjective fear of the
victims, nor can we say the District Court clearly erred in finding that Bell possessed
the gun in connection with another felony offense. We therefore sustain the District
Court's finding and the imposition of the four-level increase based on that finding.



                                          -8-
                                           C.


       In his supplemental brief, Bell claims the four-level enhancement of his offense
level pursuant to § 2K2.1(b)(5) of the guidelines violated his Sixth Amendment rights
under the Supreme Court's holding in Blakely. In Booker, the Supreme Court held
that the reasoning of Blakely applied to the United States Sentencing Guidelines.
Booker, 125 S. Ct. at 749. The Court held that the guidelines' mandatory sentencing
provisions caused a Sixth Amendment violation that could be remedied by rendering
the guidelines advisory. Id. at 756–57. The Court then directed reviewing courts to
apply the Booker holding to "all cases on direct review," as well as to determine
"whether the [Sixth Amendment] issue was raised below and whether it fails the
'plain-error' test." Id. at 769. Bell concedes he is raising his Sixth Amendment claim
for the first time on appeal and therefore that our standard of review is for plain error.
Appellant's Supp. Br. at 6.


       Under the plain-error standard of review, we will not grant relief unless 1) there
was error, 2) the error was plain (i.e., clear or obvious), 3) the error affected the
substantial rights of the aggrieved party, and 4) the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (citing United States v. Olano,
507 U.S. 725, 732–36 (1993), and Johnson v. United States, 520 U.S. 461, 466–67
(1997)). We have determined that where, as here, the District Court sentenced a
defendant pursuant to the mandatory, pre-Booker guidelines, the first two plain-error
factors are satisfied. Id. In Pirani, we refined the test for the third plain-error factor
under a Booker claim, holding it is satisfied by showing a "reasonable probability,
based on the appellate record as a whole, that but for the error [the defendant] would
have received a more favorable sentence." Id. at 552 (internal quotation marks
omitted). As the party claiming error, Bell has the burden of showing the plain-error
factors are satisfied. See id. at 550 (citing Olano, 507 U.S. at 734–35).

                                           -9-
      Although Bell's brief does not argue that he would have received a more
favorable sentence under the advisory, post-Booker guidelines system, we look to the
appellate record to determine whether it would support such a contention. See id. at
553. After Bell made his statement asking for leniency at sentencing, the District
Court stated,


      Mr. Bell, as I told you, this is a strange case, and I'm put in a position
      with the conviction you have and the different stories that we've had that
      don't provide a good explanation for what happened that there's not a lot
      of choice here in terms of, as I see it, the offense level we're dealing
      with, and your criminal history speaks for itself. Seventy-seven months
      is a long time. I'm going to give you the minimum under the guidelines
      but that's still a long time. I don't know. When I think of your actions
      that day, I don't know I can say you had an intent to hurt anybody or
      anything like that. It doesn't seem so the way you conducted yourself.
      But as I said before, that was strange behavior. But it was – as you said,
      it's serious . . . [a]nd I have to deal with it that way. So based on that,
      my intended sentence will be the low end of the guideline, the 77
      months . . . .


Sentencing Tr. at 19–20. Although the sentence imposed by the District Court was
at the bottom of the guidelines range, this was "the norm for many judges, so it is
insufficient, without more, to demonstrate a reasonable probability that the court
would have imposed a lesser sentence absent the Booker error." Pirani, 406 F.3d at
553. By contrast, the District Court considered Bell's conduct to be strange and
serious. Taken as a whole, the District Court's statements leave the effect of the
Booker error uncertain, indeterminate, and speculative. See id. (citing United States
v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)). Therefore, as in Pirani, Bell has
not shown a reasonable probability that his sentence would have been more favorable
absent the Booker error. Because Bell has not shown this third plain-error factor to



                                         -10-
be satisfied, we need not consider the fourth factor. See id. We deny the relief
sought by Bell on his Sixth Amendment claim.


                                        III.


      For the reasons stated, the judgment of the District Court is affirmed.
                      ______________________________




                                       -11-
