                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-2036
                                ________________

United States of America,              *
                                       *
             Appellee,                 *
                                       *      Appeal from the United States
      v.                               *      District Court for the
                                       *      Southern District of Iowa.
Steven William Wells,                  *
                                       *
             Appellant.                *
                                ________________

                            Submitted: October 17, 2006
                                Filed: December 4, 2006
                                 __________________

Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.


       A jury found Steven William Wells guilty of being a felon in possession of
firearms in violation of 18 U.S.C. §§ 922(g)(1), 924(a). The district court1 sentenced
Wells to 120 months’ imprisonment. Wells appeals his conviction and sentence. We
affirm.




      1
       The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
I.    BACKGROUND


       On November 20, 2004, officers from the Iowa Department of Natural
Resources set up a decoy deer less than a mile from the Iowa-Missouri border during
the Missouri deer rifle season to catch people illegally shooting deer in Iowa. Wells
spotted the decoy, drove to his house and asked Shelly Elsen, his fiancé, to bring his
grandfather’s gun, an eight-millimeter Mauser rifle (“Mauser”), out from the house.
Elsen brought the Mauser to Wells’s truck, and Wells drove back to the decoy deer
with his friend, Jason Reents, in the passenger seat. When they reached the decoy,
Reents shot the decoy. Supervisory Officer Mark Sedlmayr of the Iowa Department
of Natural Resources, the officer conducting surveillance of the decoy, heard the gun
shots and saw the truck leave the area. Officer Sedlmayr stopped the truck, found the
Mauser and arrested Wells and Reents for violating Iowa hunting laws. Wells told
Officer Sedlmayr that he was prohibited from possessing firearms and that the Mauser
belonged to Reents. Wells later told Officer Sedlmayr that the firearm belonged to his
father.

       On June 1, 2005, Special Agent Darren Hampton of the Bureau of Alcohol,
Tobacco, Firearms and Explosives went to Wells’s house to question Wells further
about the decoy deer incident. Wells cooperated with Special Agent Hampton’s
questioning and told Elsen to give Special Agent Hampton a .22-caliber Marlin rifle
(“Marlin”) that was in the house. On June 22, 2005, Wells was indicted for being a
felon in possession of the Mauser and Marlin in violation of 18 U.S.C. §§ 922(g)(1),
924(a).

      At trial, Wells testified that the house where he and Elsen lived was his father’s
house. Elsen, though, testified that Wells was in charge of the house when his father
was away. Wells also testified that his father owned the firearms and was moving
them out of the house because he was getting ready to move. Wells testified that he
did not know if his father had removed all of the firearms and that he did not have any
control over the firearms. Elsen testified that the Marlin she gave Special Agent

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Hampton was the only firearm in the house on June 1, 2005, because she removed the
rest of the firearms from the house while Wells was in jail following his arrest for the
decoy deer incident. She also testified that she retrieved the Marlin because Wells
requested her to bring it to him. Wells claimed that he only knew about that last
firearm because Elsen informed him a few days earlier that she had removed all of the
firearms except the Marlin.

       Wells moved for a judgment of acquittal at the close of the Government’s case-
in-chief and at the close of the evidence. The district court denied these motions, and
the jury found Wells guilty of being a felon in possession of firearms. At sentencing,
the district court determined that Wells’s two prior felony convictions for operating
a motor vehicle while under the influence of alcohol in violation of Iowa Code
§ 321J.2 were crimes of violence and that his prior felony conviction for gathering
where drugs would be distributed, used or possessed in violation of Iowa Code
§ 124.407 was a controlled substance offense. Accordingly, the district court set
Wells’s base offense level at 24 pursuant to U.S.S.G. § 2K2.1(a)(2). The district court
also determined that at least three firearms were involved in the offense and increased
Wells’s offense level by two levels pursuant to U.S.S.G. § 2K2.1(b)(1)(A). The
district court then imposed a two-level increase for Wells’s obstruction of justice
pursuant to U.S.S.G. § 3C1.1. Based on Wells’s total offense level of 28 and his
criminal history category of VI, the court determined an advisory guidelines range of
140 to 175 months and then sentenced Wells to 120 months’ imprisonment, the
statutory maximum.


II.   DISCUSSION


       Wells argues that there was insufficient evidence to support the jury’s verdict
that he possessed the firearms. “We view the evidence and all reasonable inferences
therefrom in the light most favorable to the verdict, and we will reverse only if no


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reasonable jury could have found [Wells] guilty.” United States v. Tindall, 455 F.3d
885, 887 (8th Cir. 2006).


       “To obtain a conviction under 18 U.S.C. § 922(g)(1) the government must
prove beyond a reasonable doubt that (1) the defendant has previously been convicted
of a crime that was punishable by a term of imprisonment exceeding one year, (2) the
defendant knowingly possessed a firearm, and (3) the firearm has been in or has
affected interstate commerce.” United States v. Davis, 449 F.3d 842, 846 (8th Cir.
2006) (internal quotation omitted). Wells does not challenge the first or third element.
Wells challenges only the sufficiency of the evidence that he knowingly possessed the
firearms.


       A defendant knowingly possesses a firearm if he has actual or constructive
possession of it, and the possession can be sole or joint. United States v. Walker, 393
F.3d 842, 846-47 (8th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 463 (2005).
“Constructive possession of the firearm is established if the person has dominion over
the premises where the firearm is located, or control, ownership, or dominion over the
firearm itself.” United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004), cert.
denied, 543 U.S. 1154 (2005). Wells contends that the evidence does not show that
he actually or constructively possessed the Mauser or the Marlin.


      With respect to the Mauser, Wells argues that his father owned the house and
Wells was not aware of any firearms in the house on the day of the decoy deer
incident. He also never touched the Mauser that Elsen brought from the house
because she placed it in the truck and Reents shot the firearm at the decoy. However,
a reasonable jury could find that Wells had dominion and control over the house
because Elsen testified that Wells was in charge of it when his father was away. See
United States v. Urick, 431 F.3d 300, 303 (8th Cir. 2005) (holding that a defendant
had constructive possession over firearms located in a residence where he lived and

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kept his personal effects). Wells also testified that the firearm Elsen brought to the
truck would not have left the house if he had not asked for it. The fact that Wells
could control the delivery of the Mauser to him is sufficient evidence that he had
dominion and control over that firearm. Finally, Officer Sedlmayr found the Mauser
in the truck that Wells was driving, and Wells knew that the Mauser was in the truck.
This evidence also would allow a reasonable jury to find that Wells had constructive
possession of the Mauser. See United States v. Maloney, 466 F.3d 663, 667 (8th Cir.
2006) (holding that a defendant exercised control over a firearm that was found in a
vehicle he was driving). Because a reasonable jury could find beyond a reasonable
doubt that Wells knowingly possessed the Mauser, the evidence was sufficient to
convict Wells of being a felon in possession of the Mauser.


       Sufficient evidence also established that Wells had constructive possession of
the Marlin when Special Agent Hampton interviewed him. Wells argues that he
merely knew there was one firearm in the house but did not know where the firearm
was located. On that day, though, Wells offered to get the firearm for Special Agent
Hampton. Only after Special Agent Hampton requested that someone else get the
firearm did Wells ask Elsen to bring the Marlin to Special Agent Hampton. Elsen
retrieved the firearm because Wells requested it. Wells’s willingness to retrieve the
Marlin himself, as well as his instruction to Elsen, is sufficient to demonstrate that he
had control over both the house and the Marlin itself. Therefore, a reasonable jury
could find that Wells also knowingly possessed the Marlin.


       Wells next argues that the district court improperly calculated his advisory
sentencing guidelines range. We review a district court’s factual findings for clear
error and its interpretation and application of the sentencing guidelines de novo.
United States v. Huber, 462 F.3d 945, 949 (8th Cir. 2006). Wells contends that the
district court erred in its determination that he had felony convictions for two prior
crimes of violence and one prior controlled substance offense. A defendant’s base

                                          -5-
offense level is “24, if the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either a crime of violence
or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The district court
determined that Wells had two previous felony convictions of crimes of violence and
one previous felony conviction of a controlled substance offense. Therefore, the
district court set Wells’s base offense level at 24.


       At sentencing, Wells did not object to the factual statements in the presentence
investigation report that he had two prior felony convictions for operating a motor
vehicle while under the influence of alcohol and that he was driving the vehicle during
each incident. We have held that a felony conviction for driving while intoxicated
qualifies as a violent felony where the proper record establishes that the defendant was
actually driving the vehicle while intoxicated. United States v. McCall, 439 F.3d 967,
972 (8th Cir. 2006) (en banc); United States v. Webster, 442 F.3d 1065, 1067-68 (8th
Cir. 2006), cert. denied, --- U.S. ---, 127 S. Ct. 200 (2006) (applying McCall’s holding
to the Iowa felony offense of operating while intoxicated). Our holding in McCall
applied to the definition of “crime of violence” under 18 U.S.C. § 924(e), but this
holding also applies to the definition of “crime of violence” under U.S.S.G. §
2K2.1(a)(2) because the definitions under these statutes are “nearly identical.” United
States v. Spudich, 443 F.3d 986, 987 (8th Cir. 2006) (per curiam). While Wells argues
that the felony offense of operating while intoxicated does not constitute a violent
felony, our holding in McCall clearly establishes that it qualifies as a violent felony
where the defendant is proven to have been driving the vehicle. Since Wells concedes
that he was driving in both incidents, the district court did not err in finding that
Wells’s convictions were crimes of violence and that his base offense level was 24.
We need not determine whether the district court correctly found that Wells’s Iowa
conviction of gathering where drugs would be distributed, used or possessed was a
conviction of a controlled substance offense because Wells’s two felony convictions
for operating while intoxicated satisfy the requirement of U.S.S.G. § 2K2.1(a)(2).


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       Wells also argues that the district court clearly erred in determining that there
were three to seven firearms involved in his offense for sentencing purposes. The
district court is required to impose a two-level increase to the base offense level if
three to seven firearms were involved in the offense. U.S.S.G. § 2K2.1(b)(1)(A).
These firearms must be “unlawfully sought to be obtained, unlawfully possessed, or
unlawfully distributed.” U.S.S.G. § 2K2.1, cmt. n.5. The district court can make such
a finding of fact at sentencing when it presided over the trial and the finding of fact
is based on the trial record. United States v. Goolsby, 209 F.3d 1079, 1081 (8th Cir.
2000) (per curiam).


       Wells argues that the evidence only established that two firearms were
involved: the Mauser used on the decoy deer and the Marlin that Elsen gave to Special
Agent Hampton. However, trial testimony established that at least one additional
firearm was in the house during this time period and that Wells constructively
possessed it. Elsen testified that she removed other firearms from the house after
Wells was arrested. While the district court noted that there was some inconsistency
in Elsen’s testimony, it found that her testimony clearly supported the finding that at
least one additional firearm was in the house. Additionally, Wells testified that he
knew there were other guns in the house when he stated Elsen could “move them guns
around wherever she wanted to. She did the other ones.” He also specified to Elsen
which of several firearms he wanted on November 20, 2004. With this evidence of
Wells’s knowledge of and control over additional firearms in the house, the district
court did not clearly err in finding that Wells had constructive possession of at least
one additional firearm. See United States v. Lewis, 236 F.3d 948, 950 (8th Cir. 2001)
(holding that the district court correctly increased a defendant’s offense level under
U.S.S.G. § 2K2.1(b)(1)(B) because the firearms found at his residence were under his
control)


.

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III.   CONCLUSION

       Accordingly, we affirm Wells’s conviction and sentence.
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