                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 10-3150
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Missouri.
Ricky L. Brooks,                       *
                                       *     [UNPUBLISHED]
            Appellant.                 *
                                  ___________

                             Submitted: June 13, 2011
                                Filed: August 4, 2011
                                 ___________

Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
                          ___________

PER CURIAM.

       Ricky Brooks pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After applying a four-level
enhancement, pursuant to U.S.S.G. § 2K2.1(b)(6), for possessing the firearm in
connection with another felony offense, the district court1 sentenced Brooks to 120
months' imprisonment. On appeal, Brooks challenges the court's application of the
enhancement. We affirm.


      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
                                   I. Background
       Brooks pleaded guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). According to the presentence investigation
report (PSR), police officers were patrolling the Westport entertainment district of
Kansas City, Missouri, at night when they heard five to ten gunshots in a nearby
parking lot. The officers spoke to witnesses, who pointed toward a nearby vehicle.
The officers approached the vehicle, then moved to a street just north of the parking
lot. They saw Brooks in the front passenger seat, holding a Romak-Romarm/Cugir
SKS semiautomatic rifle in his lap. Brooks exited the vehicle and attempted to flee
on foot, but the officers quickly apprehended and arrested him. The officers then
recovered the semiautomatic rifle in the vehicle. The rifle had a 30-round magazine,
with 23 rounds of ammunition remaining.

       Shortly thereafter, officers learned that several shooting victims had arrived at
a nearby hospital. One victim suffered a gunshot wound to the leg, shattering his
femur bone; another suffered an abrasion on his left leg. Witnesses told the officers
that the incident began with an argument in a bar across the street from the parking
lot and continued into the parking lot itself. According to the witnesses, Brooks went
to a vehicle, retrieved a firearm, and began shooting toward a Chevrolet Suburban,
hitting two people and damaging the vehicle. These witnesses and the victims
identified Brooks as the shooter.

      The PSR calculated a total offense level of 27, including a four-level
enhancement, pursuant to U.S.S.G. § 2K2.1(b)(6), for possessing the firearm in
connection with another felony offense, a first-degree assault and armed criminal
action. Combined with his criminal history category of IV, the PSR calculated an
advisory Guidelines range of 100 to 120 months' imprisonment.2


      2
       The applicable range would have been 100 to 125 months' imprisonment, but
the statutory maximum for Brooks's offense was 120 months' imprisonment. 18

                                          -2-
      Brooks raised only one objection to the PSR, disputing that the § 2K2.1(b)(6)
enhancement should apply. In his written objection, he merely stated that he "denie[d]
using a gun during an assault in the 1st degree." He did not file a sentencing
memorandum, nor did he object to the PSR's factual account of the offense.

        At the sentencing hearing, the court addressed Brooks's objection to the
enhancement. Brooks disputed that he possessed the gun in connection with another
felony offense. As his counsel explained, "[Brooks] was charged with that assault in
the first degree in [Missouri state court], and that charge was dismissed because the
witnesses were not cooperative." He acknowledged that, if called to testify, the
witnesses to the May 3, 2009 incident would offer testimony consistent with their
statements to police officers, as reflected in the PSR. The government explained that
it did not have any witnesses to present at the sentencing hearing at that time. It noted
that the witnesses had not appeared in state court but suggested that the government
could compel their testimony, if necessary. Ultimately, however, the government
offered to stipulate that four different witnesses, if called, would testify that Brooks
shot the semiautomatic rifle at the Chevrolet Suburban on the night of the offense.

       Brooks stipulated that the witnesses would testify as the government had
represented. He argued, however, that the court should not find the witnesses
credible, given their refusal to cooperate with state and federal prosecutors.
Moreover, Brooks argued that the physical evidence did not support a finding that he
actually shot the semiautomatic rifle. According to Brooks, the semiautomatic rifle
had DNA from two other individuals who rode in the car with him—but no DNA
from Brooks himself. He conceded, however, that the gun was in his lap when the car
left the scene.




U.S.C. § 924(a)(2).

                                          -3-
     The court overruled Brooks's objection and applied the § 2K2.1(b)(6)
enhancement, explaining its findings as follows:

      I'm going to rule based upon the summary of the investigative report
      [that the government] has given that if these witnesses were called, they
      would testify in accordance with the statements they made to the law
      enforcement officers the evening and after the offense, and I think that's
      sufficient evidence, regardless of whether it went to trial and resulted in
      a trial in the other court, is sufficient by a preponderance of the evidence
      to show that there was another felony committed and this defendant was
      involved in that other felony.

The court then confirmed that the parties had no further objections and adopted the
remainder of the PSR. After hearing arguments from both parties about the
appropriate sentence, the court sentenced Brooks to 120 months' imprisonment.

                                     II. Discussion
       On appeal, Brooks argues that the district court erred in applying the four-level
enhancement for possessing the firearm in connection with another felony offense.
He contends that the court should not have relied on the out-of-court statements that
witnesses made to police. Because these witnesses refused to cooperate in the state-
court prosecution of Brooks for assault, Brooks maintains that the district court
should not have believed their allegations. Moreover, Brooks asserts that the district
court failed to consider other relevant evidence, including DNA evidence on the rifle,
which showed DNA from other individuals in Brooks's car but not Brooks.

       We review the district court's application of the Guidelines de novo and its
factual findings for clear error. United States v. Anderson, 618 F.3d 873, 879 (8th Cir.
2010). Specifically, "[t]he district court's determination that the defendant possessed
the firearm[] in connection with another felony is a factual finding that we review for
clear error." United States v. Smith, 535 F.3d 883, 885 (8th Cir. 2008).


                                          -4-
      At sentencing, the government bears the burden of "prov[ing] by a
preponderance of the evidence each of the facts necessary to establish a sentencing
enhancement." United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008).
"Unless a defendant objects to a specific factual allegation contained in the PSR, the
court may accept that fact as true for sentencing purposes."Id. (quotation, alteration,
and citation omitted). We have recognized that an objection to the PSR's
recommendation of the enhancement itself does not imply an objection to the
underlying factual statements in the PSR. Id. at 975–76. Instead, "[w]e require that
objections to the PSR be made with specificity and clarity before a district court is
precluded from relying on the factual statements contained in the PSR." Id. at 976
(quotations and citations omitted).

       U.S.S.G. § 2K2.1(b)(6) provides for a four-level enhancement "[i]f the
defendant used or possessed any firearm or ammunition in connection with another
felony offense." Brooks does not dispute that he possessed the semiautomatic rifle,
nor does he dispute that the May 3, 2009 shooting would constitute a "felony offense"
within the meaning of this Guideline. Instead, he argues that the government failed
to prove by a preponderance of the evidence that Brooks himself committed the other
felony offense, i.e., that Brooks shot the semiautomatic rifle at the Chevrolet
Suburban.

       Ample evidence supports the district court's finding that Brooks possessed the
semiautomatic rifle in connection with another felony offense. Brooks objected to the
PSR's enhancement recommendation, but he failed to object to the paragraphs in the
PSR describing the facts of his offense. Thus, the district court was entitled to rely on
those portions of the PSR. See Razo-Guerra, 534 F.3d at 975–76. The unobjected-to
factual allegations of the PSR, as described above, stated that officers heard five to
ten gunshots and, shortly thereafter, saw Brooks holding the semiautomatic rifle in
his lap. The semiautomatic rifle had a 30-round magazine with 23 rounds remaining,



                                          -5-
which provides circumstantial evidence that Brooks's rifle was the same firearm that
had been fired.

       Moreover, the unobjected-to factual allegations of the PSR stated that several
witnesses saw Brooks fire the weapon at the Chevrolet Suburban. The district court
could consider these out-of-court statements if, given the facts of the particular case,
the court finds "'sufficient indicia of reliability to support [the statements'] probable
accuracy.'" United States v. Woods, 596 F.3d 445, 448 (8th Cir. 2010) (quoting
U.S.S.G. § 6A1.3(a)). Here, the PSR indicated that the witnesses made these
statements to police officers shortly after the shooting. Additionally, the officers' own
aural and visual observations corroborated the witnesses' statements.

      In sum, the unobjected-to factual allegations in the PSR provided a sufficient
factual basis for the district court to determine that Brooks possessed the
semiautomatic rifle in connection with another felony offense. As a result, the court
did not err in applying the § 2K2.1(b)(6) enhancement.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                          -6-
