                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-3521
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Jason Paul Annis,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 20, 2006
                                 Filed: May 8, 2006
                                  ___________

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

       Jason Paul Annis pled guilty to manufacturing and attempting to manufacture
methamphetamine, and to being a felon in possession of a firearm. The district court1
sentenced him within the advisory Guidelines range to 235 months. He appeals,
arguing the district court erred in determining the drug quantity, finding he possessed
a firearm in connection with another felony, and denying an acceptance-of-
responsibility reduction. He also asserts the sentence is unreasonable. Having
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                         I.

       On July 29, 2004, police officers arrived at the house of Heather Annis,
suspecting it contained a methamphetamine lab. After she consented, police searched
the garage and found Annis, her brother, injecting himself with meth. He scuffled
with police while being arrested, but afterward did not appear to be injured. An
officer read Annis his Miranda rights while in the patrol car. He admitted that the
meth items in the garage were his. At the police station, he was involved in another
altercation with an officer. He suffered "a minimally displaced fracture of his orbit
and a facial bone," was taken to a local hospital, and treated with an ice pack and
Tylenol.

       Two days later, Annis phoned his sister, asking her to contact Officer Phil
Fordyce. She called Fordyce, telling him Annis was in pain and wanted to speak with
him. Fordyce called the jail, informed them Annis was in pain, and set up an
interview time. Arriving at the jail, Fordyce advised Annis of his Miranda rights
again. Fordyce interviewed him about the details of his meth production. Annis
answered the questions, admitting to estimates of the quantities of meth he
manufactured, but never mentioning he was in pain. At the end of the interview,
Fordyce typed a report in Annis's presence, had him read it on the computer screen,
and then had him read the printed version. After reading and reviewing the interview
report, Annis signed it in the presence of a witness.

      Annis pled guilty to manufacturing and attempting to manufacture
methamphetamine, and to being a felon in possession of a firearm. After calculating
the Guidelines range to be 235 to 293 months, the district court sentenced him to 235
months in prison.




                                         -2-
                                          II.

                                          A.

       First, Annis claims his signed statement cannot be used to determine the
quantity of meth he manufactured because he did not voluntarily or knowingly waive
his Miranda rights. Because the district court essentially conducted a suppression
hearing during the sentencing proceeding, this court reviews its fact finding for clear
error and its application of law to those facts de novo. See United States v. Jones, 275
F.3d 673, 678–79 (8th Cir. 2001). This court "will affirm the district court's denial of
a motion to suppress evidence unless it is unsupported by substantial evidence, based
on an erroneous interpretation of applicable law, or, based on the entire record, it is
clear a mistake was made." Id.

       A defendant's statement of drug quantity may be used to determine his base
offense level under the advisory Guidelines. See United States v. Ingles, 408 F.3d
405, 409 (8th Cir. 2005). However, it may be used only if the defendant knowingly
and voluntarily waived her Miranda rights. See Missouri v. Seibert, 542 U.S. 600,
608 n.1 (2004); United States v. Black Bear, 422 F.3d 658, 663 (8th Cir. 2005). "A
waiver is 'knowing and intelligent' where it is made with full awareness of both the
nature of the right being abandoned and the consequences of abandoning the right, and
a waiver is 'voluntary' where the court can determine that the waiver was a product of
the suspect's free and deliberate choice, and not the product of intimidation, coercion,
or deception." Thai v. Mapes, 412 F.3d 970, 977 (8th Cir. 2005). A statement is not
voluntary if the totality of the circumstances shows the defendant's will was
overborne. See United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000).

      In this case, there is no evidence Annis unknowingly and involuntarily waived
his Miranda rights. He initiated contact with Fordyce, through his sister, asking for
a meeting. He was read his rights at least twice – once in the patrol car and once right

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before Fordyce interviewed him at the jail. During the interview, he answered
Fordyce's questions, admitting the quantity of meth he manufactured. Fordyce typed
his report on a word processor in Annis's presence, and Annis read and reviewed it on
the computer screen. Fordyce then printed out the report, which Annis again read,
reviewed, and signed. Although he had ample opportunity, Annis neither objected to
the report's contents, including his meth-quantity statement, nor told Fordyce he was
in any pain. See Seibert, 542 U.S. at 608–09 ("[M]aintaining that a statement is
involuntary even though given after warnings and voluntary waiver of rights requires
unusual stamina, and litigation over voluntariness tends to end with the finding of a
valid waiver."), citing Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984).

       Annis, however, asserts he did not knowingly and voluntarily waive his rights
because he thought Fordyce "was there to help him regarding his pain." He claims the
pain from his injuries, combined with meth withdrawal, made it impossible for him
to voluntarily and knowingly waive his rights at the time of the interview. He also
argues that, separate from his waiver argument, these factors made his statement
involuntary. This court, though, has declined to adopt a per se rule of involuntariness
founded solely on intoxication. See United States v. Makes Room, 49 F.3d 410, 415
(8th Cir. 1995). Instead, "the test is whether these mental impairments caused the
defendant's will to be overborne." United States v. Casal, 915 F.2d 1225, 1229 (8th
Cir. 1990). Annis provided no evidence that his pain and meth withdrawal caused his
will to be overborne. To the contrary, the government proved that during the
interview Annis answered questions reasonably, even reading and reviewing his
statements twice and signing the report. He did not appear to be in any pain or
suffering from withdrawal, and did not complain to Fordyce. See id. (explaining that
because defendant talked coherently and did not appear to be intoxicated, there was




                                         -4-
no error). There is no evidence of police coercion overbearing his will. Thus, his
waiver, as well as his statement, were both knowing and voluntary.2

                                            B.

        Next, Annis argues his sentence should not have been enhanced for possession
of a firearm used in connection with manufacturing meth. This court reviews a district
court's finding that a defendant possessed a dangerous weapon during a drug offense
for clear error. See United States v. Lopez, 416 F.3d 713, 715 (8th Cir. 2005).

       "Generally, the weapon enhancement is applicable 'if the gun is found in the
same location where drugs or drug paraphernalia were stored, or where part of the
conspiracy took place.'" United States v. Perez-Guerrero, 334 F.3d 778, 784 (8th Cir.
2003), quoting United States v. Braggs, 317 F.3d 901, 904 (8th Cir. 2003). The
district court found, and Annis admits, that he kept a sawed-off rifle at his home,
where police also found evidence of meth manufacturing. Witnesses saw the gun
"assembled and leaning against the wall in the living room," as well as being cleaned


      2
       Annis also argues that the Fifth Amendment requires the government at
sentencing to prove his relevant conduct beyond a reasonable doubt. This court has
already stated that, at sentencing, the government has the burden to prove drug
quantity by a preponderance of the evidence. See, e.g., United States v. Ziesman, 409
F.3d 941, 955 (8th Cir. 2005); see also Black Bear, 422 F.3d at 663 (same standard
applies in determining whether Miranda waiver was knowing and voluntary). As
explained, the district court applied the correct standard.

          Additionally, Annis asserts that the district court should not have relied on the
testimony of two other government witnesses because they are not credible.
Credibility assessments are for the fact-finder. See United States v. Tensley, 334 F.3d
790, 795 (8th Cir. 2003); United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir. 1997)
("An appellate court is 'not in the best position to judge the credibility of witnesses .
. . .'"). Here, the record supports the district court's determination. See United States
v. Buford, 108 F.3d 151, 155 (8th Cir. 1997).

                                           -5-
and painted by Annis. See United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.
2006) (witnesses saw defendant with gun). This evidence supports the district court's
determination that he possessed a weapon in connection with a drug-related offense.

      However, Annis claims his sentence should not have been adjusted under
U.S.S.G. § 2D1.1(b)(1) because the gun was missing both the clip and the bolt. The
Guidelines state: "If a dangerous weapon (including a firearm) was possessed,
increase by 2 levels." U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2004).
The Guidelines further state:

      "Dangerous weapon" means (i) an instrument capable of inflicting death or
      serious bodily injury; or (ii) an object that is not an instrument capable of
      inflicting death or serious bodily injury but (I) closely resembles such an
      instrument; or (II) the defendant used the object in a manner that created the
      impression that the object was such an instrument . . . .

Id. § 1B1.1, cmt. n.1(D). Additionally, "'Firearm' means (i) any weapon (including
a starter gun) which will or is designed to or may readily be converted to expel a
projectile by the action of an explosive . . . ." Id. cmt. n.1(G).

       In this case, the district court stated that Annis could easily "make the rifle
operational in just a few seconds by putting the bolt in." The same can be said for the
clip. Thus, the gun qualifies as a firearm under the Guidelines. See United States v.
Mullins, No. 05-2420, 2006 WL 1132344, at *2 (8th Cir. May 1, 2006) (expert
testimony established starter gun may readily be converted); United States v.
Christmann, 193 F.3d 1023, 1024 (8th Cir. 1999) ("The definition turns on what the
weapon is designed to do, not on whether it is capable of doing its job at the particular
moment that the crime was committed."). Even partially disassembled, the gun is still
a dangerous weapon because it not only closely resembles such an instrument, but also
was used in a manner that created the impression it was a working gun. Cf.
Christmann, 193 F.3d at 1024–25 (explaining firearm definition turns on what

                                          -6-
weapon was designed to do "because the bank employees had no way of knowing that
the gun was unloaded, and, in fact, the robbers manifestly intended the bank
employees to believe that the gun was loaded."). Therefore, the district court did not
clearly err in applying § 2D1.1(b)(1).3

                                           C.

      Third, Annis claims he should have received a downward adjustment for
acceptance of responsibility. "A district court's factual determination on whether a
defendant has demonstrated acceptance of responsibility is entitled to great deference
and should be reversed only if it is so clearly erroneous as to be without foundation."
United States v. Card, 390 F.3d 592, 594 (8th Cir. 2004), quoting United States v.
Nguyen, 339 F.3d 688, 690 (8th Cir. 2003).

       Annis argues that under § 3E1.1 of the Guidelines, he only has to admit the
conduct comprising the offense of conviction (in this case, manufacturing and
attempting to manufacture meth), but does not have to admit any relevant conduct
beyond the offense, by which he means the quantity of meth manufactured. The
district court found that he had "not accepted personal responsibility for his criminal
behavior" because "his challenge to his own statement of drug quantities . . . is
inconsistent with acceptance of responsibility." The court made clear that the basis
of the denial was Annis's "challenge to the reliability of those statements, not the
voluntariness of them."

        Although stating that he is simply putting the government to its burden of proof,
this is not a case where a defendant remained silent as to relevant conduct. See U.S.

      3
       Annis also challenges the district court's § 2K2.1(b)(5) adjustment for use or
possession of a firearm in connection with another felony offense. Because his
sentence for manufacturing and attempting to manufacture meth was the greater of the
two, this court does not need to address this claim.

                                          -7-
Sentencing Guidelines Manual § 3E1.1, cmt. n.1(a) ("A defendant may remain
silent in respect to relevant conduct beyond the offense of conviction without affecting
his ability to obtain a reduction under this subsection."). Instead, he contested his
earlier statement regarding meth quantity as unreliable. Moreover, the Guidelines
state that entry of a guilty plea and truthfully admitting or not falsely denying any
additional relevant conduct "will constitute significant evidence of acceptance of
responsibility." Id. cmt. n.3. "However, this evidence may be outweighed by conduct
of the defendant that is inconsistent with such acceptance of responsibility. A
defendant who enters a guilty plea is not entitled to an adjustment under this section
as a matter of right." Id.

       In this case, the district court found Annis falsely denied or frivolously
contested his relevant conduct. He asserted his earlier statement was unreliable, and
refused to admit to any quantity of meth. His conduct in challenging the reliability of
his statement is inconsistent with acceptance of responsibility and outweighs the
decision to plead guilty – his lone act of cooperation. See id. There is no clear error.
Because he does not qualify for downward adjustment under § 3E1.1(a), he is not
eligible under § 3E1.1(b).

                                          D.

       Finally, Annis states his sentence is unreasonable because the district court
failed to apply the sentencing factors in 18 U.S.C. § 3553(a). This court reviews the
reasonableness of a defendant's sentence for abuse of discretion. See United States
v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005).

       The district court calculated the Guidelines range to be 235 to 293 months,
sentencing him to 235 months in prison. A sentence within the Guidelines range, as
here, is presumptively reasonable. See United States v. Lincoln, 413 F.3d 716, 717
(8th Cir. 2005). Also, at the sentencing hearing the district court expressly considered

                                          -8-
the § 3553(a) factors. See United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir.
2006). Annis's real argument is that the court did not apply these factors correctly,
otherwise he would have received a lesser sentence. But, the record reflects the
district court did not abuse its discretion in sentencing him within the Guidelines
range.

                                        III.

      The judgment of the district court is affirmed.
                     ______________________________




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