                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1008
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Lionel Lee Dixon

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                           Submitted: January 11, 2016
                              Filed: May 16, 2016
                                ____________

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       Appellant Lionel Dixon pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced him to
48 months’ imprisonment. Dixon appeals his sentence, arguing that the district court

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
erred in applying a four-level enhancement pursuant to USSG § 2K2.1(b)(6)(B). We
affirm.

        On May 21, 2014, Dixon was involved in a confrontation with a neighbor
during which Dixon retrieved a pistol and threatened the neighbor with the weapon.
After an unidentified observer placed an emergency phone call, police located and
arrested Dixon and confiscated the firearm. An officer subsequently attempted to
test-fire the pistol and discovered that it did not function due to an issue with the
gun’s firing mechanism.

       Dixon pleaded guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). At Dixon’s sentencing hearing, the Government pursued
a four-level enhancement under section 2K2.1(b)(6)(B) of the sentencing guidelines
because Dixon had used the weapon in connection with a felony offense—the crime
of “[e]xhibit[ing], in the presence of one or more persons, [a] weapon readily capable
of lethal use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4).
Dixon objected to this enhancement. He argued that because the gun was not
functional, it did not meet the Missouri statute’s requirement that the weapon be
“readily capable of lethal use.” Although the court agreed with Dixon’s reasoning,
it found the argument foreclosed by previous decisions of the Missouri Supreme
Court.

       The district court’s application of the enhancement resulted in a guidelines
range of 57-71 months’ imprisonment (as opposed to the 37-46 month range that
would have applied without the enhancement). Acknowledging the circumstances
of the offense and the fact that the pistol was not functional, the district court varied
downward and sentenced Dixon to a term of 48 months’ imprisonment. Dixon now
appeals, renewing his argument that he did not violate section 571.030.1(4) of the
Missouri statutes because a weapon must be functional in order to be “readily capable
of lethal use” under the statute.

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       Section 2K2.1(b)(6)(B) of the Guidelines Manual provides that “[i]f the
defendant [u]sed or possessed any firearm or ammunition in connection with another
felony offense,” then the court should increase the offense level by four levels. “In
applying § 2K2.1(b)(6) when the defendant has not been convicted of another state
or federal felony offense, the district court must find by a preponderance of the
evidence that another felony offense was committed, and that use or possession of the
firearm ‘facilitated’ that other felony.” United States v. Littrell, 557 F.3d 616, 617
(8th Cir. 2009) (quoting USSG § 2K2.1 cmt. n.14(A)). The legal conclusions a
district court reaches in order to apply this enhancement are reviewed de novo, and
the factual findings supporting the enhancement are reviewed for clear error. United
States v. Rodriguez, 711 F.3d 928, 938 (8th Cir. 2013).

       Missouri law prohibits as one of several “unlawful uses of weapons” the
knowing “[e]xhibit[ion], in the presence of one or more persons, [of] any weapon
readily capable of lethal use in an angry or threatening manner.” Mo. Rev. Stat.
§ 570.030.1(4). Violation of this provision constitutes a class D felony punishable
by up to four years in prison. Mo. Rev. Stat. § 571.030.8. In assessing whether
Dixon’s conduct violated this provision, we defer to the Missouri Supreme Court’s
interpretation of the statute. See Littrell, 557 F.3d at 617-18 (looking to state supreme
court decisions to determine whether defendant had committed a “felony offense”
under USSG § 2K2.1(b)(6)(B)); see also Johnson v. United States, 559 U.S. 133, 138
(2010) (acknowledging that federal courts applying sentencing enhancements under
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), are “bound by” state-court
interpretations of state criminal statutes).

      The Missouri Supreme Court has held that a weapon qualifies as “readily
capable of lethal use” under section 571.030.1 even if it is not functional. In State v.
Wright, a defendant challenged his conviction under the statute’s prohibition against
carrying a concealed weapon, arguing that the state had failed to provide evidence
showing that the weapon in question was functional. 382 S.W.3d 902, 904-5 (Mo.

                                          -3-
2012). The court rejected the defendant’s argument. Id. at 905. It noted that some,
but not all, of the “unlawful use of weapons” offenses listed in section 571.030.1
include a “special negative defense” that applies when a defendant is “transporting”
a firearm that is “nonfunctioning.” Id. at 904-05 “Providing for this special negative
defense would be meaningless,” the court explained, “if the State always had to prove
the functionality of a firearm in its case-in-chief.” Id. at 904. The court thus found
“no requirement for a firearm to be loaded or operational for a defendant to be
convicted under § 571.030.1” and affirmed the defendant’s conviction for carrying
a concealed weapon despite the fact that the state had not provided evidence that the
gun in question was functional. Id. at 904-05.

       The felony underlying Dixon’s enhancement contains the same “readily
capable of lethal use” language as the concealed-weapon offense considered by the
Missouri Supreme Court in Wright. See Mo. Rev. Stat. § 570.030.1(4). Under
Missouri law, therefore, the Government did not need to prove in its case in chief that
Dixon’s weapon was functional in order for the district court to find that Dixon
possessed the weapon in connection with a violation of the statute. See Wright, 382
S.W.3d at 905. Nor does Missouri law provide a special negative defense where a
firearm exhibited in an angry or threatening manner is not functional. See Mo. Rev.
Stat. § 570.030.3. Following the Missouri Supreme Court’s admonition not to render
“meaningless” those provisions that do afford such a defense, see Wright, 382 S.W.3d
at 904, we decline to read a non-functionality defense into the statute’s prohibition
against exhibiting a weapon in an angry or threatening manner. See Mo. Rev. Stat.
§ 570.030.1(4). As a result, we find that the district court did not err by applying the
four-level enhancement.

      For the foregoing reasons, we affirm.2



      2
          Dixon does not challenge the substantive reasonableness of his sentence.

                                          -4-
KELLY, Circuit Judge, concurring.

          Wright held that “Section 571.030[] does not require the state to prove that a[]
. . . firearm is ‘functional,’” commenting that “the majority of cases have consistently
held there is no requirement for a firearm to be loaded or operational for a defendant
to be convicted.” 382 S.W.3d at 904–05. Because I believe this holding does not
require a firearm to be functional to support a conviction under § 571.030, I concur
in the court’s ruling in this case. I write separately, however, to express some
concern with the reasoning of Wright as applied to the facts here. In Wright, the
Supreme Court of Missouri was faced with the argument that “there was insufficient
evidence introduced at trial to find” that the firearm in that case “was a ‘functional
lethal weapon.’” 382 S.W.3d at 905. In holding that such evidence was not required,
the Supreme Court collapsed the concepts of “functional” and “readily capable of
lethal use.” Even if the State is not required to prove that the firearm is “functional,”
in the sense that it works as designed, the plain language of the statute does require
proof that the firearm is “readily capable of lethal use.” Whether the firearm is
functional seems relevant to this inquiry—not necessarily dispositive, but relevant.

        This distinction is illustrated by the special negative defense enumerated in
§ 571.030.3: that defense applies to transporting weapons “in a nonfunctioning
state,” as distinct from a nonfunctioning weapon. The latter suggests the firearm
doesn’t work as a firearm at all under any circumstances; the former suggests that an
otherwise functioning firearm doesn’t presently function simply because of the state
it is in, perhaps because it is unloaded, purposely broken down into its parts, or
otherwise disabled to prevent unexpected discharge during transportation. A firearm
“in a nonfunctioning state” could under some circumstances be “readily capable of
lethal use,” but the special negative defense allows a defendant to avoid culpability
if he can prove the weapon or firearm was being transported “in a nonfunctioning
state” even if the firearm was otherwise “readily capable of lethal use.”



                                           -5-
       That does not, however, answer the precise question posed by this case:
whether the fact that a firearm is completely nonfunctioning is relevant to
determining whether it is “readily capable of lethal use.” If faced with this question
on facts like those presented here—where all parties agree that Dixon’s pistol was
nonfunctioning—it seems possible that the Supreme Court of Missouri would limit
the applicability of Wright, and would rather consider the functionality of the firearm
in the context of the plain language of the statute, which asks whether the weapon
exhibited was “readily capable of lethal use.” Because the Missouri courts have not
been presented with the opportunity to consider such a case, however, I concur.

                       ______________________________




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