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United States v. Glinn

United States Court of Appeals, Eighth Circuit

July 19, 2017

United States of America Plaintiff-Appellee
v.
Dante Jamal Glinn Defendant-Appellant

          Submitted: May 9, 2017

         Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

          Before RILEY and BEAM, Circuit Judges, and ROSSITER, [1] District Judge.

          BEAM, Circuit Judge.

         Dante 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[2] 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.

         I. BACKGROUND

         On 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.

         During 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.

         In 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.

         II. DISCUSSION

         A. Jury Instruction

         Glinn 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.

         The 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 ...

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