LOKEN, Circuit Judge.
Bryan Scott Holm pleaded guilty to being a felon in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The plea agreement included a stipulation, not binding on the court at sentencing, "that the firearm was not used in connection with another felony offense pursuant to U.S.S.G. § 2K2.1(b)(6)(B)." See Fed.R.Crim.P. 11(c)(1)(B). The Presentence Investigation Report ("PSR") nonetheless recommended that the court apply this four-level enhancement. At sentencing, the district court
Section 2K2.1 of the Guidelines contains Offense Conduct provisions that apply to Holm's firearm possession offense. The four-level enhancement at issue applies if a defendant "used or possessed any firearm or ammunition in connection with another felony offense." § 2K2.1(b)(6)(B). "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). When the issue is whether the evidence supports these findings, we review the district court's determination for clear error. Id. at 617-618.
Paragraph 14 of Holm's PSR set forth the following offense conduct facts:
Holm withdrew his initial objection to paragraph 14 prior to sentencing.
The methamphetamine found when Holm was searched on May 21, 2012, was evidence of a drug possession offense. For purposes of the § 2K2.1(b)(6)(B) enhancement, a firearm is possessed "in connection with" a drug possession felony if it "facilitated, or had the potential of facilitating" that other felony. § 2K2.1, comment. (n.14(A)). Applying this standard, we have repeatedly held: "when a drug user chooses to carry illegal drugs out into public with a firearm, an `in connection with' finding `will rarely be clearly erroneous.'" United States v. Sneed, 742 F.3d 341,
The remaining element that must be found to apply the § 2K2.1(b)(6)(B) enhancement—that Holm's possession of a small user amount of methamphetamine was a felony offense—is, in this case, a more complex issue. The Guidelines define "felony offense" as "any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year," regardless of the sentence imposed. U.S.S.G. § 4A1.2(o). Holm's possession of a user amount of methamphetamine was not a federal felony offense, see 21 U.S.C. § 844a(a), so this issue turns on state law. Iowa law prohibits the knowing or intentional possession of a user amount of a controlled substance such as methamphetamine (unless pursuant to a valid prescription). See Iowa Code §§ 124.401(5), 124.206(4)(b). The initial violation of § 124.401(5) is a "serious misdemeanor." But an offender who has a prior conviction for violating an enumerated Iowa drug law
Holm objected to paragraph 23 of the PSR, which recommended the four-level § 2K2.1 (b)(6)(B) enhancement. In response, the probation officer explained:
On appeal, Holm fills in this blank, arguing the record is insufficient to establish that his methamphetamine possession was a felony offense under the Guidelines because paragraphs 39 and 40 of the PSR did not specify that those convictions were under chapters 124, 124A, 124B, or 453B of the Iowa Code. Absent that proof, he argues, a violation of Iowa Code § 124.401(5) is not an aggravated misdemeanor or felony under Iowa law, so it is not a "felony offense" under U.S.S.G. § 4A1.2(o), and the § 2K2.1(b)(6)(B) enhancement does not apply.
This argument overlooks the probation officer's reason for overruling Holm's objection to the recommended enhancement—that a state prosecutor charged Holm with "Possession of a Controlled Substance, Third or Subsequent Offense" for the methamphetamine he possessed on May 21, 2012. Though that charge was dropped in favor of this federal prosecution, this was powerful, if not conclusive evidence that the prior drug offenses listed in Paragraphs 39 and 40 of the PSR were predicate offenses that would have made this third offense a class "D" felony, or at least an aggravated misdemeanor, under Iowa Code § 124.401(5).
If he disagreed with this inference the probation officer drew from the state court charge, Holm should have timely raised this issue in the district court, giving the probation officer and the court an opportunity to consult state court records which likely would have confirmed the bases of these prior Iowa convictions. Our extensive research has uncovered no Iowa case charging a methamphetamine possession offense under an Iowa Code chapter other than chapter 124, which strongly suggests that Holm did not pursue this issue at sentencing because it would have been futile to do so. In these circumstances, we conclude that the district court did not commit clear error, much less plain error,
Having concluded the district court did not clearly err in finding that Holm possessed the firearm in connection with a felony methamphetamine possession offense, we need not consider the court's alternative basis for applying the § 2K2.1(b)(6)(B) enhancement—that his discharge of a firearm the night before his May 21, 2012, arrest was a violation of Iowa Code 724.30 that is a felony offense under the Guidelines. See United States v. Smith, 422 F.3d 715, 722 (8th Cir.2005), cert. denied, 546 U.S. 1127, 126 S.Ct. 1112, 163 L.Ed.2d 921 (2006). Holm argues there was no proof that he discharged the gun intentionally or recklessly, correctly noting that the PSR stated the discharge was accidental.
Finally, Holm urges us to consider additional material not in the record on appeal under Federal Rule of Appellate Procedure 10(e). We previously denied Holm's Rule 10 motion, and he makes no showing that any of this material would affect our resolution of the only sentencing issue raised in this direct appeal. Accordingly, we decline to take up the Rule 10(e) issue.
The judgment of the district court is affirmed.