                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2001
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Matthew Dwain Johnston,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 11, 2007
                                Filed: July 21, 2008
                                 ___________

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                             ___________

BYE, Circuit Judge.

       Matthew Dwain Johnston pleaded guilty to possession of firearms and
ammunition by an unlawful user of controlled substances in violation of 18 U.S.C.
§ 922(g)(3), and the district court1 sentenced him to 120 months of imprisonment, the
statutory maximum available for such crime. He appeals his sentence arguing the
district court erred in applying a four-level enhancement under United States
Sentencing Guideline (U.S.S.G.) § 2K2.1(b)(6) for possession of a firearm in
connection with another felony when calculating the advisory guidelines range, erred

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
by assessing criminal history points under U.S.S.G. § 4A1.2(c) for four underage
possession of alcohol charges, and abused its discretion by imposing an unreasonable
sentence. We affirm.

                                           I

       A federal grand jury indicted Johnston on charges of possessing marijuana in
violation of 21 U.S.C. § 844(a), and possession of firearms and ammunition by an
unlawful drug user in violation of 18 U.S.C. § 922(g)(3). The charges stemmed
primarily2 from an incident where police officers stopped his car for driving at night
without headlights. The officers discovered four grams of marijuana on his person
during a pat-down search. In addition, two .22 caliber rifles were found in his vehicle,
one belonging to a passenger, and another having been reported stolen from a
residence in Peosta, Iowa. The vehicle search also uncovered a box containing 145
rounds of .22 caliber ammunition. During the stop, he admitted to smoking marijuana
the previous evening. A urine sample he provided tested positive for THC, confirming
his recent use of marijuana. With respect to the stolen rifle, he told the officers he
found the rifle lying on top of a car outside a residence in Peosta.

       Johnston pleaded guilty to the unlawful drug user/firearm charge pursuant to
a plea agreement, which contemplated Johnston's base offense level would be 20, and
the final offense level would include the following enhancements: 1) a two-level
enhancement because of the number of firearms involved; 2) a two-level enhancement
for possession of a "destructive device" (a sawed-off shotgun); and 3) a two-level
enhancement for possession of a stolen firearm. The plea agreement also
contemplated he would receive a three-level reduction for acceptance of
responsibility, resulting in a final offense level of 23.


      2
       The indictment was also based on another incident which tied Johnston to other
firearms.

                                          -2-
       Following the plea hearing, new state criminal charges were filed against
Johnston for burglary and vehicle theft. As a result of this conduct, the probation
officer who prepared the presentence report (PSR) recommended denying the three-
level reduction for acceptance of responsibility. In addition, the PSR recommended
adding a four-level enhancement under § 2K2.1(b)(6)3 on the grounds he possessed
a firearm in connection with another felony, namely, he burglarized a trailer home in
Peosta when he stole the .22 caliber rifle mentioned above. The PSR recommended
a final offense level of 30.

       The PSR calculated Johnston's criminal history score as four points, based on
four underage possession of alcohol charges he received between the ages of eighteen
and twenty. The PSR suggested the underage possession charges should be counted
pursuant to United States v. Webb, 218 F.3d 877 (8th Cir. 2000), which held an
underage possession charge for a non-juvenile (someone between the ages of eighteen
and twenty-one) should be counted when calculating criminal history. This resulted
in a criminal history category of III.4 Based on a final offense level of 30, and a
criminal history category of III, the PSR calculated Johnston's advisory sentencing
range at 121 to 151 months. The statutory maximum sentence for a violation of 18
U.S.C. § 922(g)(3) is 120 months, below his advisory guideline range. As a


      3
       Section 2K2.1(b)(6) provides in relevant part "[i]f the defendant used or
possessed any firearm or ammunition in connection with another felony offense . . .
increase [the offense level] by 4 levels."
      4
        Johnston's criminal history category III is somewhat misleading. The PSR
contains twenty-four separate paragraphs referring to various charges brought against
him between the ages of thirteen and twenty (he was nineteen when the incident which
led to this federal charge occurred). These offenses vary in severity from trespass,
alcohol-related charges, drug charges, theft, assault, assault with a dangerous weapon,
and burglary. Many of the charges were adjudicated in juvenile court, some were
never prosecuted, and others were still pending at the time he was sentenced in this
case.

                                         -3-
consequence, his advisory range became 120 months. See U.S.S.G. § 5G1.1(a)
("Where the statutorily authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum sentence shall be the
guideline sentence.").

       Johnston objected to a number of the PSR's recommendations, including the
denial for acceptance of responsibility, the four-level enhancement under
§ 2K2.1(b)(6), and the use of the four underage possession charges in calculating
criminal history. At the sentencing hearing, the government presented testimony from
Randy Wernimont, the man whose trailer home was burglarized, and Dubuque County
Deputy Sheriff Ryan Kremer, to prove the four-level enhancement. Ultimately, the
district court followed the PSR's recommendations in every aspect, denying
acceptance of responsibility, applying the four-level enhancement under
§ 2K2.1(b)(6), and using the four underage possession charges when calculating
Johnston's criminal history score. The district court therefore found the advisory
guideline range was 121-151 months, capped at 120 months pursuant to § 5G1.1(a),
and imposed a sentence of 120 months.

      In discussing the imposition of sentence, the district court noted – assuming the
underage possession charges should not be used to calculate criminal history –
Johnston's sentencing range of 97-121 months would overlap with the 120 month
sentence imposed. The district court explained it would still sentence him to 120
months because:

      Defendant has earned that sentence. He has a very serious criminal
      conduct, has had very serious criminal conduct beginning at age thirteen.
      In juvenile court he had adjustments for criminal conduct that were
      serious and were not counted in his criminal history, including at age
      thirteen, possession of alcohol, theft fifth, trespass; at age sixteen,
      assault; at age sixteen, trespass; at age seventeen, burglary in the third
      degree and going armed with a dangerous weapon. The Court notes that


                                         -4-
      those were car burglaries, but at that time, car burglaries were burg.
      thirds in state court.

      At age seventeen, another going armed with a dangerous weapon and
      another assault while displaying a dangerous weapon. He has been
      treated leniently in the juvenile system. This has not deterred him. His
      uncontested criminal conduct in the presentence investigation report for
      this offense shows very serious criminal conduct; stolen firearms,
      possession of a sawed-off weapon for which there is no legitimate
      purpose. That's not a hunting – that's not a hunting rifle. It has no
      legitimate purpose, and it is a very, very dangerous weapon.

      Defendant has not taken full responsibility for his criminal conduct. He
      is at very high risk to recidivate based on his past history and, of course,
      his drinking.

      These are the reasons why I would sentence him at 120 months, even if
      I'm wrong about the proper scoring of his criminal history category. I
      would just say parenthetically that my decision to sentence him at 120
      months is bolstered by the fact that he has a number of arrests now where
      the conduct is not disputed, that he has been let off without any charges,
      and it's bolstered by the number of pending charges.

Sent. Tr. at 85-87.

       Johnston filed a timely appeal contending the district court erred in applying the
four-level enhancement under § 2K2.1(b)(6) and in using the four underage
possession charges to calculate his criminal history score, and argues the ultimate
sentence of 120 months was unreasonable.

                                           II

       The district court's interpretation and application of the guidelines is reviewed
de novo, while any factual findings made under the guidelines are reviewed for clear
error. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). We are to

                                          -5-
"consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard." Gall v. United States, 128 S. Ct. 586, 597 (2007).

                                           A

       Johnston first claims the district court erred in applying the four-level
enhancement under § 2K2.1(b)(6) for possessing a firearm in connection with another
felony offense. Stealing a firearm during the course of a burglary triggers application
of the enhancement. See, e.g., United States v. Kenney, 283 F.3d 934, 938 (8th Cir.
2002); see also U.S.S.G. § 2K2.1, cmt. n.14(B) ("Subsections (b)(6) and (c)(1) apply
in a case in which a defendant who, during the course of a burglary, finds and takes
a firearm[.]").

       The district court found Johnston burglarized Wernimont's trailer home and
stole the .22 caliber rifle. He claimed he found the rifle on top of a car parked outside
the trailer,5 but Wernimont testified he stored his guns inside. The district court
credited Wernimont's testimony over the defendant's implausible version of events.6
Even if his version had been plausible, the fact this issue turns on a supportable
credibility finding is the death-knell for his claim. See United States v. Tucker, 243
F.3d 499, 506 (8th Cir. 2001) ("[W]hen a trial judge's finding is based on his [or her]
decision to credit the testimony of one of two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic


      5
       Johnston did not actually testify at the sentencing hearing; his version of the
events was relayed through the testimony of Deputy Sheriff Kremer.
      6
        While at the same time claiming he did not enter the home, Johnston told
Deputy Sheriff Kremer he thought the trailer was abandoned because it was a mess
and there were feces in the toilet. When the deputy asked how he knew there were
feces in the toilet if he never entered the trailer, he claimed to have seen the feces by
looking through a window. The bathroom window was eight feet off the ground,
however, and the toilet was not visible from outside the window.
                                          -6-
evidence, that finding, if not internally inconsistent, can virtually never be clear error."
(quoting Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985))); see also United
States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (indicating a district court's
"credibility findings are well-nigh unreviewable, so long as the findings are not
internally inconsistent or based on testimony that is incoherent, implausible, or
contradicted by objective evidence in the case.").

                                             B

       Johnston next claims the district court erred in assessing four criminal history
points for the underage possession convictions he obtained when he was between the
ages of eighteen and twenty-one. The guidelines set forth a list of certain offenses
which are not counted for purposes of calculating a person's criminal history score,
namely:

       Fish and game violations
       Hitchhiking
       Juvenile status offenses and truancy
       Local ordinance violations (except those violations that are also
       violations under state criminal law)
       Loitering
       Minor traffic infractions (e.g., speeding)
       Public Intoxication
       Vagrancy

U.S.S.G. § 4A1.2(c)(2). Significantly, this guideline also provides "offenses similar
to [those listed], by whatever name they are known, are never counted." Id. Johnston
argues convictions for underage possession of alcohol committed by a non-juvenile
are "similar to" juvenile status offenses and should not be counted.

      In Webb, the defendant argued an offense for underage possession by a person
between eighteen and twenty-one should not be counted in calculating criminal history


                                            -7-
because it was a juvenile status offense; the defendant also argued such an offense was
similar to the offense of public intoxication. See Webb, 218 F.3d at 880 ("Webb
asserts that under section 4A1.2(c)(2) the crime of prohibitions is a 'juvenile status
offense' that should not have been counted and, alternatively, that it is 'similar to'
public intoxication, a crime also excluded."). Notably, the defendant never raised the
issue raised now by Johnston, that is, whether an offense for underage possession by
a person between eighteen and twenty-one is similar to a juvenile status offense. See
id. (making no mention of the defendant raising a second, alternative argument that
the crime of prohibitions is "similar to" a juvenile status offense). The fact that the
issue now raised by Johnston was not raised or addressed in Webb was noted by the
Sixth Circuit in United States v. Cole, 418 F.3d 592 (6th Cir. 2005):

      The Eighth Circuit, which to our knowledge is the only Circuit to have
      addressed the issue of whether a minor in possession conviction
      constitutes a juvenile status offense, applied the three-factor test set forth
      in Correa7 and concluded that a defendant's conviction for "prohibitions"
      under Ohio law (effectively the same crime as Michigan's "minor in
      possession of alcohol") was not a juvenile status offense because the
      defendant was nineteen at the time the offense was committed. United
      States v. Webb, 218 F.3d 877, 880 (8th Cir. 2000). Interestingly, and for
      reasons that are not clear, the court did not consider whether the
      defendant's conviction for "prohibitions" at the age of nineteen was
      similar to a juvenile status offense, despite the fact that § 4A1.2(c)(2)
      bars the use of a juvenile status offense or an offense similar to a juvenile
      status offense in determining a defendant's criminal history score.

Cole, 418 F.3d at 599.

      7
        United States v. Correa, 114 F.3d 314, 318-19 (1st Cir. 1997) (discussing the
"essential characteristics of the crime" test, one of three tests developed by the various
circuits for determining whether a particular crime is "similar to" a crime listed in
§ 4A1.2(c)(2)).



                                           -8-
      In addressing the issue raised by Johnston, the Sixth Circuit held an underage
possession charge is "similar to" a juvenile status offense, reasoning:

      [A] juvenile status offense is an offense which is illegal only because of
      the offender's age (under eighteen) and which is not serious. Under
      Michigan law, being a minor in possession of alcohol is an offense
      which is criminalized only because of the offender's age (under
      twenty-one). It is not a "serious" offense. The crux of both offenses is
      that they criminalize behavior for people of a certain age that is legal for
      people of a certain (greater) age. Indeed, in cases involving defendants
      under the age of eighteen, being a minor in possession of alcohol would
      not simply be similar to a juvenile status offense, it would constitute a
      juvenile status offense. We find it difficult to imagine two distinct
      offenses with more similar "essential characteristics," and have no
      difficulty concluding that being a minor in possession of alcohol is
      similar to a juvenile status offense, under § 4A1.2(c)(2).

Id. at 599-600.

       Johnston argues we should follow the reasoning employed by the Sixth Circuit
in Cole. We decline, however, to address the issue raised by Johnston because, even
assuming the criminal history score was calculated incorrectly, the record indicates
any alleged error would be harmless. In most cases, "[i]f the sentence was imposed
as the result of an incorrect application of the guidelines, we will remand for
resentencing as required by 18 U.S.C. § 3742(f)(1) without reaching the
reasonableness of the resulting sentence in light of § 3553(a)." United States v.
Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005). There may, however, "be situations
where an error in calculating the appropriate guideline range is harmless and,
therefore, does not require immediate remand." Id. "One such situation is where the
resulting sentence lies in the overlap between the correct and incorrect guidelines
range." Id. But, "to support a finding of harmless error, the record clearly must show
not only that the district court intended to provide an alternative sentence, but also that


                                           -9-
the alternative sentence is based on an identifiable, correctly calculated guidelines
range." United States v. Icaza, 492 F.3d 967, 971 (8th Cir. 2007).

       Without the four criminal history points attributed to the underage possession
charges, Johnston's guideline range would have been 97-121 months. This range
overlaps with the 120 month sentence actually imposed by the district court, and the
district court specifically identified 97-121 months as the sentencing range that would
have applied absent the four criminal history points. Finally, the district court
indicated it would have imposed the same 120-month sentence under either
calculation of the guideline range, and thoroughly set forth the reasons for selecting
a sentence of 120 months. The district court focused on Johnston's extensive "serious
criminal conduct beginning at age thirteen" and his "very high risk to recidivate based
on his past history," as well as the fact he had a "number of pending charges" at the
time of his sentencing, among other reasons. See Sent. Tr. at 85-87. As a
consequence, any error the district court may have committed in calculating the
guideline range would be harmless in any event. Thus, we need not reach the issue
whether Johnston's convictions for underage possession of alcohol are "similar to"
juvenile status offenses under § 4A1.2(c)(2).

                                           D

       Finally, we address the reasonableness of Johnston's 120-month sentence in
light of § 3553(a), the last of the claims he raises on appeal. As already noted, his
sentence – although at the high end of the range – is still within the proper sentencing
range and does not reflect an upward departure or variance. In addition, he has not
called our attention to anything in the record, and we see nothing, which indicates the
district court based the sentence on an improper or irrelevant factor, failed to consider
a relevant factor, or made a clear error of judgment in weighing appropriate factors
under § 3553(a). We therefore have no basis for concluding the sentence imposed by
the district court was unreasonable. See Gall v. United States, 128 S. Ct. 586, 597-98

                                          -10-
(2007) (noting the "superior position" of the district court and "institutional advantage
over appellate courts" in fashioning an appropriate sentence in a particular case).

                                           III

      We affirm the sentence imposed by the district court.
                      ______________________________




                                          -11-
