                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-3018
                                     ___________

United States of America,                 *
                                          *
             Plaintiff – Appellee,        *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   Southern District of Iowa
Robert Allen Davis,                       *
                                          *   [UNPUBLISHED]
             Defendant – Appellant.       *

                                     ___________

                             Submitted: January 15, 2010
                                Filed: January 20, 2010
                                 ___________

Before MURPHY and BYE, Circuit Judges, and GOLDBERG,1 Judge.
                            ___________

PER CURIAM.

     Robert Allen Davis was convicted of being a felon in possession of firearms
and ammunition, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 120
months imprisonment. On appeal he contests the district court's2 denial of his motion



      1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
      2
        The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
to suppress evidence, the sufficiency of the evidence upon which the guilty verdict
was based, and the sentence imposed. We affirm.

       Police received information indicating that Davis had been stealing farm
equipment from Bomgaars, a farm supply store where he worked, and selling it from
the farm of his uncle, Larry Davis. Police obtained a search warrant for the uncle's
property. Larry Davis consented to a search of his home and showed the officers
ammunition and gun cabinets containing multiple firearms which he said belonged to
Robert Davis. Robert Davis had been convicted in Iowa in 1997 of third degree
sexual abuse, third degree burglary, and assault with intent to commit sexual assault.
As a result the United States indicted him for being a felon in possession of firearms
and ammunition and for forfeiture of the firearms and ammunition.

       Davis moved to suppress the firearms and ammunition on the basis that the
search warrant lacked probable cause, but his motion was denied. At trial he claimed
that he had sold the guns in 2000 to another relative, Willis Davis. The jury convicted
him on both counts, and his renewed motion for judgment of acquittal or for a new
trial was denied. At sentencing the district court imposed a four level enhancement
under U.S.S.G. § 2K2.1(b)(6) for possessing the firearms in connection with the
felony theft offense. It calculated his advisory sentencing guideline range at 121 to
151 months, denied his motion for a variance, and sentenced him to 120 months
imprisonment, the statutory maximum sentence.

       Davis contends that the district court erred in denying his motion to suppress
because the search warrant for his uncle's property lacked probable cause, but he has
failed to demonstrate that he had a legitimate expectation of privacy there. See
Minnesota v. Carter, 525 U.S. 83, 88 (1998). The evidence did not show that Davis
either lived or stayed more than irregularly at his uncle's residence, that he stored
personal effects there which he admitted to owning, or that he had exclusive access
to or had taken precautions to maintain privacy in the gun cabinets or the room where
the ammunition was found. See United States v. McCaster, 193 F.3d 930, 933 (8th
Cir. 1999). He therefore lacks standing to challenge the search.

                                         -2-
       Davis also contests the denial of his motion for judgment of acquittal or for a
new trial, arguing that the evidence at trial was insufficient to sustain a guilty verdict.
We review de novo the district court's denial of the motion for acquittal, viewing the
evidence in the light most favorable to the verdict and according it all reasonable
inferences. United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002). The
denial of that motion will be affirmed unless no reasonable trier of fact could conclude
that Davis was guilty beyond a reasonable doubt. Id. Since Davis stipulated to the
other elements of § 922(g), the government needed to prove only that he knowingly
possessed the firearms or ammunition.

       The district court did not err in denying Davis's motion for judgment of
acquittal because the totality of the evidence permitted a reasonable trier of fact to
conclude beyond a reasonable doubt that he knowingly possessed the firearms. See
id. There was evidence that Davis owned the firearms, stored them at his uncle's
house but would retrieve them for hunting, and that he had obtained multiple hunting
licenses between 2001 and 2005. While Willis Davis testified that Davis had sold him
the firearms in 2000, that evidence was contradicted by the testimony of appellant's
former girlfriend, Diane Roemmich. She stated that Davis had repeatedly told her he
would never sell the firearms. Moreover, the district court did not clearly abuse its
discretion in concluding that the evidence did not "preponderate[] sufficiently heavily
against the verdict that a serious miscarriage of justice may have occurred." See
United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). Accordingly, the
denial of Davis’s alternative motion for a new trial was also appropriate. See id.

       Davis also objects to the four level sentencing enhancement imposed by the
district court under U.S.S.G. § 2K2.1(b)(6). We review for clear error the district
court’s finding that Davis "'used or possessed any firearm . . . in connection with
another felony offense.'" See United States v. Harper, 466 F.3d 634, 649–50 (8th Cir.
2006) (quoting § 2K2.1(b)(6)). A firearm is possessed "in connection with another
felony offense" if it had "some purpose or effect with respect to the other offense
[such that] its presence facilitated or had the potential to facilitate the offense, as
opposed to being the result of mere accident or coincidence." United States v. Smith,

                                           -3-
535 F.3d 883, 885 (8th Cir. 2006) (quotation marks and citation omitted); see also
U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A). The district court considered "the number and
nature of the firearms, the presence of ammunition, [Davis]’s use of [his uncle’s farm]
. . . for storage of the stolen items, [his] criminal history . . . [,] possession of a firearm,
handcuffs, and a wig in his personal vehicle, and . . . [his] aggressive, if not violent,
behavior." On the basis of that evidence, the district court did not clearly err when it
found that at least some of the firearms had the potential to facilitate the theft. Nor did
the district court clearly err when it found that Davis stole the farm equipment from
Bomgaars which was a felony theft under Nebraska law. See Nebraska Code §§ 28-
511, -518.

       Finally, Davis complains about the court's failure to grant a variance. He argues
that the district court failed to consider all the 18 U.S.C. § 3553(a) factors, giving
insufficient weight to his limited criminal history, strong family support, and to the
fact that his previous conviction was nearly outside of the ten year time frame for
computation of his criminal history under U.S.S.G. § 4A1.1. See U.S.S.G. § 4A1.2(e).
We review the sentence imposed under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S 38, 51 (2007). The district court did not procedurally
err, for it properly calculated the guideline range, treated it as advisory, adequately
explained the sentence, and expressly considered possible mitigating factors in its §
3553(a) analysis. See id. Nor did it impose a substantively unreasonable sentence.

       Accordingly, the judgment of the district court is affirmed.
                              ______________________________




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