                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1258
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Bryan Scott Holm

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                            Submitted: January 16, 2014
                              Filed: March 21, 2014
                                  ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Bryan Scott Holm pleaded guilty to being a felon in possession of a firearm and
ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The plea agreement included
a stipulation, not binding on the court at sentencing, “that the firearm was not used
in connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(6)(B).”
See Fed. R. Crim. P. 11(c)(1)(B). The Presentence Investigation Report (“PSR”)
nonetheless recommended that the court apply this four-level enhancement. At
sentencing, the district court1 overruled Holm’s timely objection to the recommended
enhancement, determined that his advisory guidelines range is 84 to 105 months in
prison, and sentenced Holm to 96 months in prison, the middle of that range. Holm
appeals the sentence, arguing that the record does not support the § 2K2.1(b)(6)(B)
enhancement.2 We disagree and therefore affirm.

       Section 2K2.1 of the Guidelines contains Offense Conduct provisions that
apply to Holm’s firearm possession offense. The four-level enhancement at issue
applies if a defendant “used or possessed any firearm or ammunition in connection
with another felony offense.” § 2K2.1(b)(6)(B). “In applying § 2K2.1(b)(6) when
the defendant has not been convicted of another state or federal felony offense, the
district court must find by a preponderance of the evidence that another felony
offense was committed, and that use or possession of the firearm ‘facilitated’ that
other felony.” United States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009). When the
issue is whether the evidence supports these findings, we review the district court’s
determination for clear error. Id. at 617-618.

      Paragraph 14 of Holm’s PSR set forth the following offense conduct facts:

      14. On May 21, 2012, LEO [law enforcement officers] executed a
      search warrant at Holm’s residence . . . where they found [three firearms,
      ammunition, and drug paraphernalia] . . . . At the time of the search,
      Holm was not present. LEO located Holm driving and conducted a
      traffic stop. Upon searching Holm, LEO found a loaded .38 special
      HWM revolver in his waistband, ammunition, a stun gun in a case in his


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
      2
       Holm does not and could not argue that the district court erred by investigating
whether the plea agreement stipulation accurately reflected conduct relevant to a
proper sentence. See United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004).

                                         -2-
      front coat pocket, a knife on a lanyard around his neck, a baggie of
      approximately one-half gram of methamphetamine, and two glass pipes.

Holm withdrew his initial objection to paragraph 14 prior to sentencing.

        The methamphetamine found when Holm was searched on May 21, 2012, was
evidence of a drug possession offense. For purposes of the § 2K2.1(b)(6)(B)
enhancement, a firearm is possessed “in connection with” a drug possession felony
if it “facilitated, or had the potential of facilitating” that other felony. § 2K2.1,
comment. (n.14(A)). Applying this standard, we have repeatedly held: “when a drug
user chooses to carry illegal drugs out into public with a firearm, an ‘in connection
with’ finding ‘will rarely be clearly erroneous.’” United States v. Sneed, 742 F.3d
341, 344 (8th Cir. 2014), quoting United States v. Fuentes Torres, 529 F.3d 825, 827
(8th Cir. 2008); see United States v. Swanson, 610 F.3d 1005, 1008 (8th Cir. 2010);
United States v. Regans, 125 F.3d 685, 687 (8th Cir. 1997), cert. denied, 523 U.S.
1065 (1998). At sentencing, the district court found “by a preponderance of the
evidence that your possession of methamphetamine in the same car as your loaded .38
caliber handgun facilitated or had the potential to facilitate your meth possession,
even this relatively small user amount.” This finding was not clearly erroneous.

       The remaining element that must be found to apply the § 2K2.1(b)(6)(B)
enhancement -- that Holm’s possession of a small user amount of methamphetamine
was a felony offense -- is, in this case, a more complex issue. The Guidelines define
“felony offense” as “any federal, state, or local offense punishable by death or a term
of imprisonment exceeding one year,” regardless of the sentence imposed. U.S.S.G.
§ 4A1.2(o). Holm’s possession of a user amount of methamphetamine was not a
federal felony offense, see 21 U.S.C. § 844a(a), so this issue turns on state law. Iowa
law prohibits the knowing or intentional possession of a user amount of a controlled
substance such as methamphetamine (unless pursuant to a valid prescription). See
Iowa Code §§ 124.401(5), 124.206(4)(b). The initial violation of § 124.401(5) is a

                                         -3-
“serious misdemeanor.” But an offender who has a prior conviction for violating an
enumerated Iowa drug law3 is guilty of an aggravated misdemeanor; if the offender
has two such prior convictions, a violation of § 124.401(5) is a class “D” felony. A
crime designated as an aggravated misdemeanor under Iowa law falls within the
Guidelines definition of felony offense. United States v. Phillips, 633 F.3d 1147,
1148 (8th Cir. 2011); see Iowa Code § 903.1(2). Paragraphs 39 and 40 of the PSR,
to which Holm did not object, recited that he was convicted of “Possession of
Cocaine” in an Iowa District Court in 1994, and “Possession of Methamphetamine”
in another Iowa District Court in 1995.

     Holm objected to paragraph 23 of the PSR, which recommended the four-level
§ 2K2.1(b)(6)(B) enhancement. In response, the probation officer explained:

             On May 21, 2012, the defendant was arrested for the instant
      offense and was charged with Possession of a Controlled Substance,
      Third or Subsequent Offense, under Iowa Code 124.401(5)D. This case
      was dismissed in lieu of [this] federal prosecution. According to the
      Iowa Code under which the defendant was charged . . . . “[a] person who
      commits a violation of this subsection and who has previously been
      convicted of violating this chapter or chapter 124A, 124B, or 453B is
      guilty of an aggravated misdemeanor. A person who commits a
      violation of this subsection and has previously been convicted two or
      more times of violating [those chapters] is guilty of a class ‘D’ felony.”

                                 *   *    *    *   *

      . . . . The probation office further notes the defendant was originally
      charged in the state of Iowa with a class D felony charge in the state of
      Iowa for Possession of Methamphetamine as referenced above. Based

      3
       Chapters 124, 124A, 124B, and 453B of the Iowa Code. Chapter 124 defines
controlled substance offenses. Chapter 124A deals with imitation controlled
substances, chapter 124B with precursor substances, and chapter 453B imposes an
excise tax on unlawful dealing in controlled substances.

                                         -4-
      on these reasons the PSR will respectfully remain unchanged. The issue
      is unresolved.

       At sentencing, the government advised that it would present no evidence
regarding the recommended § 2K2.1(b)(6)(B) enhancement because it had stipulated
in the plea agreement that the enhancement did not apply.4 The district court then
overruled Holm’s objection to the PSR recommendation. Regarding this felony
offense issue, the court concluded: “because you have been previously convicted on
two or more occasions of possessions under Iowa law . . . your possession of
methamphetamine on [May] 21st was a felony . . . [or] an aggravated misdemeanor
under Iowa Code provision 124.401, and it’s subparagraph 5.” Holm then objected
to the enhancement on three grounds, including that the government had not proved
that his possession of methamphetamine “would have been a felony conviction.” But
he did not articulate what additional proof beyond the facts in the PSR was required.

       On appeal, Holm fills in this blank, arguing the record is insufficient to
establish that his methamphetamine possession was a felony offense under the
Guidelines because paragraphs 39 and 40 of the PSR did not specify that those
convictions were under chapters 124, 124A, 124B, or 453B of the Iowa Code.
Absent that proof, he argues, a violation of Iowa Code § 124.401(5) is not an
aggravated misdemeanor or felony under Iowa law, so it is not a “felony offense”
under U.S.S.G. § 4A1.2(o), and the § 2K2.1(b)(6)(B) enhancement does not apply.




      4
        For this reason, on appeal the government takes no position regarding the
district court’s decision to apply the § 2K2.1(b)(6)(B) enhancement. As to this felony
offense issue, the government’s brief states: “it does not appear that the district court
erred by concluding that Holm’s possession of methamphetamine on May 2[1], 2012,
qualified as either an aggravated misdemeanor or a class ‘D’ felony under Section
124.401(5) of the Iowa Code.”

                                          -5-
       This argument overlooks the probation officer’s reason for overruling Holm’s
objection to the recommended enhancement -- that a state prosecutor charged Holm
with “Possession of a Controlled Substance, Third or Subsequent Offense” for the
methamphetamine he possessed on May 21, 2012. Though that charge was dropped
in favor of this federal prosecution, this was powerful, if not conclusive evidence that
the prior drug offenses listed in Paragraphs 39 and 40 of the PSR were predicate
offenses that would have made this third offense a class “D” felony, or at least an
aggravated misdemeanor, under Iowa Code § 124.401(5).

       If he disagreed with this inference the probation officer drew from the state
court charge, Holm should have timely raised this issue in the district court, giving
the probation officer and the court an opportunity to consult state court records which
likely would have confirmed the bases of these prior Iowa convictions. Our extensive
research has uncovered no Iowa case charging a methamphetamine possession
offense under an Iowa Code chapter other than chapter 124, which strongly suggests
that Holm did not pursue this issue at sentencing because it would have been futile
to do so. In these circumstances, we conclude that the district court did not commit
clear error, much less plain error,5 in determining the probation officer correctly
concluded that Holm’s possession of methamphetamine on May 21, 2012, would
have been a second or third offense under the predicate statutes enumerated in Iowa
Code § 124.401(5).6 Therefore, his simultaneous possession of methamphetamine


      5
       “Preserving an issue is a matter of making a timely objection to the trial court
and clearly stating the grounds for the objection, so that the trial court has an
opportunity to prevent or correct the error in the first instance.” United States v.
Williams, 994 F.2d 1287, 1294 (8th Cir. 1993) (quotation omitted).
      6
       In his reply brief, Holm speculates that his 1994 and 1995 convictions could
“conceivably” have been for violating chapter 126, which prohibits adulteration,
misbranding, and mislabeling of drugs, or chapter 155A, the Iowa Pharmacy Practice
Act. We do not consider issues first raised in a reply brief, and it certainly was not
plain error for the district court not to consider such far-fetched theories.

                                          -6-
was “another felony offense” that was facilitated by his possession of the firearm, and
the § 2K2.1(b)(6)(B) enhancement applies.

       Having concluded the district court did not clearly err in finding that Holm
possessed the firearm in connection with a felony methamphetamine possession
offense, we need not consider the court’s alternative basis for applying the
§ 2K2.1(b)(6)(B) enhancement -- that his discharge of a firearm the night before his
May 21, 2012, arrest was a violation of Iowa Code 724.30 that is a felony offense
under the Guidelines. See United States v. Smith, 422 F.3d 715, 722 (8th Cir. 2005),
cert. denied, 546 U.S. 1127 (2006). Holm argues there was no proof that he
discharged the gun intentionally or recklessly, correctly noting that the PSR stated the
discharge was accidental.

       Finally, Holm urges us to consider additional material not in the record on
appeal under Federal Rule of Appellate Procedure 10(e). We previously denied
Holm’s Rule 10 motion, and he makes no showing that any of this material would
affect our resolution of the only sentencing issue raised in this direct appeal.
Accordingly, we decline to take up the Rule 10(e) issue.

      The judgment of the district court is affirmed.
                     ______________________________




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