Submitted: May 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
RILEY and BEAM, Circuit Judges, and ROSSITER,  District
Glinn appeals following a jury trial conviction and sentence
for theft of a firearm from a federally licensed firearms
dealer in violation of 18 U.S.C. §§ 922(u) and
924(m). The district court sentenced Glinn to 78 months'
imprisonment followed by three years' supervised release.
Glinn challenges the district court's refusal to give a
particular jury instruction at trial, claims the district
court procedurally erred in calculating his sentence, and
argues the court erred in its imposition of a special
condition of supervised release. We affirm.
August 25, 2015, at approximately 1:00 p.m., the manager of
Sports Outfitters was in the back of the store and saw on the
surveillance camera that an individual entered the showroom.
By the time the manager walked into the showroom to assist
the customer, the customer was gone. Later viewing of the
surveillance footage revealed that a man entered the store,
reached over a glass display counter, grabbed a handgun from
behind the counter, and ran out the front door. Sports
Outfitters is a federally licensed firearms dealer. Following
the incident the manager called the police. As part of the
investigation, among other things, officers interviewed
witnesses, reviewed the surveillance video, and obtained
crime scene evidence. Two days later, officers spoke to Glinn
during a traffic stop and certain aspects of the conversation
raised their suspicions about his involvement in the theft of
the handgun. Ultimately, following the investigation, Glinn
was charged with the instant offense and a jury trial took
place in January 2016.
trial, Glinn objected to instruction 12, which explicated the
crime of theft of a firearm from a federally licensed
firearms dealer. Glinn argued that the instruction should
expressly include an intent element. He claimed that the
instruction as written failed to require the jury to find
"that the defendant [committed the crime] with the
intent to permanently deprive Sports Outfitters of the
firearm, " as the second element. The district court
held that instruction 12 as written without an intent element
was "a correct statement of the law" and thus
overruled the objection. The jury found Glinn guilty.
arriving at Glinn's sentence, the district court
determined Glinn's starting base offense level was
fourteen because Glinn was a prohibited person under U.S.S.G.
§ 2K2.1(a)(6)(A) as an unlawful user of a controlled
substance at the time he stole the firearm. The court further
increased his base offense level two levels pursuant to
§ 2K2.1(b)(4)(A) because the firearm was stolen. After
arriving at a Guidelines calculation, the district court
departed upward and imposed a sentence of 78 months'
imprisonment followed by a three-year term of supervised
release. The court imposed an alcohol provision, in addition
to other conditions, prohibiting Glinn from using alcohol or
being in alcohol related establishments as a condition of
Glinn's supervised release. Glinn challenges instruction
12, the district court's Guidelines calculations, as well
as the terms of his supervised release.
first challenges the district court's refusal to adopt
his proffered jury instruction on the crime of theft of a
firearm from a federally licensed firearm dealer. We review a
district court's formulation of jury instructions for an
abuse of discretion, but if the court's "refusal of
a proffered instruction simultaneously denies a legal
defense, the correct standard of review is de novo."
United States v. Young, 613 F.3d 735, 744 (8th Cir.
2010). When reviewing jury instructions, we ensure that the
instructions, taken as a whole, fairly and adequately
submitted the issues to the jury. United States v.
Merrell, 842 F.3d 577, 583 (8th Cir. 2016). In this
case, we review the district court's formulation of the
instructions for an abuse of discretion, as Glinn was not
deprived of a legal defense.
charge against Glinn was theft of a firearm from a federally
licensed firearms dealer under 18 U.S.C. § 922(u), which
makes it "unlawful for a person to steal or unlawfully
take or carry away from the person or the premises of a
person who is licensed to engage in the business of . . .
firearms, any firearm in the licensee's business
inventory that has been shipped or transported in interstate
or foreign commerce." 18 U.S.C. § 922(u). The
district court instructed the jury on the elements of this
offense as follows:
The crime of theft of a firearm from a federally licensed
firearms dealer, as charged in the Indictment, has three
elements, which are: One, on or about August 25,
2015, the defendant stole, took or carried away a firearm,
namely a Kimber .45 caliber handgun bearing serial number
KR201205, from a federally licensed firearms dealer;
Two, the firearm was taken from the licensee's
business inventory; Three, the firearm ...