United States Court of Appeals

                          FOR THE EIGHTH CIRCUIT


                              ___________

                              No. 96-3075
                              ___________


United States of America,           *
                                    *
          Appellee,                 *
                                    *   Appeal from the United States
     v.                             *   District Court for the
                                    *   District of North Dakota.
Gregory Lynn Balanga,               *
                                    *
          Appellant.                *

                              ___________

                  Submitted:      February 10, 1997

                         Filed: April 1, 1997
                              ___________

Before MAGILL, BEAM, and LOKEN, Circuit Judges.
                           ___________


MAGILL, Circuit Judge.


     Gregory Lynn Balanga was convicted in the district court1 by
a jury on two counts of being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. § 922(g)(1) (1994).      On
appeal, Balanga argues that there was insufficient evidence to
convict him of being a felon in possession of a firearm, that the
district court abused its discretion in using an Eighth Circuit
Model Jury Instruction rather than the instruction submitted by



    1
     The Honorable Patrick A. Conmy, United States District Judge
for the District of North Dakota.
Balanga, and    that   the   district    court    erred   in   enhancing   his
sentence.    We affirm.


                                   I.


       Balanga lived with his girlfriend, Lori Lindstrom, in a small
rental house at 311 North 19th Street in Bismarck, North Dakota.
The house had a basement which could only be accessed through a
root-cellar door outside of the house.           The root-cellar doors led
to a short staircase, at the bottom of which was a second door that
opened on the basement.        This second door was padlocked.             The
basement contained a washer and dryer, a desk used as a work bench,
and a telephone.


       During the summer of 1995, Balanga allegedly possessed a .25
caliber handgun and a sawed-off shotgun.              On August 8, 1995,
Balanga purportedly discharged one of the firearms in his yard
during an argument with a woman named Kristie Sherman.             On August
15, 1995, police placed Balanga in North Dakota state custody for
this alleged assault.     Lindstrom, Balanga's girlfriend, testified
that when police took Balanga into custody she removed the .25
caliber handgun and sawed-off shotgun from Balanga's car and placed
them in her own.       Upon Balanga's release from custody shortly
thereafter, Lindstrom testified that she gave the firearms back to
him.


       Sometime between October 6 and 13, 1995, Balanga's brother
Dennis asked Balanga if he could store some things in Balanga's
basement.    Dennis received a key to the basement padlock from
either Balanga or Lindstrom.      Dennis then put a .22 caliber rifle
(which had one round of ammunition in its clip) and a box of .38
caliber ammunition in Balanga's basement.


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                                    2
     On October 13, 1995, police executed a search warrant on
Balanga's house.   The police discovered the .22 caliber rifle and
.38 caliber ammunition stored in the basement of Balanga's house.
When informed about the discovery of the rifle and ammunition,
Balanga allegedly stated to the police that "I forgot the gun was
even there.    It's not my gun.     It's my . . . sister-in-law's,
DeAnna."   Trial Tr. at 55.   The police did not find either the .25
caliber handgun or the sawed-off shotgun.


     Balanga was charged on a four-count indictment for being a
felon in possession of three firearms (a .25 caliber pistol, a
sawed-off shotgun, and a .22 bolt-action rifle) and ammunition (a
single round of .22 caliber ammunition and a box of .38 caliber
ammunition), in violation of 18 U.S.C. § 922(g)(1).        The jury
acquitted Balanga of possession of the sawed-off shotgun and was
unable to reach a verdict on the count of being in possession of
the .25 caliber handgun.      The jury convicted Balanga of being a
felon in possession of the .22 caliber rifle and the ammunition.


     The district court sentenced Balanga to 188 months in prison.
The court enhanced Balanga's sentence based on his three prior
convictions in Colorado for second degree burglary, which the
district court counted as violent felonies.     Balanga now appeals
his conviction and sentence.
                                  II.


     On appeal, Balanga argues that there was insufficient evidence
to support his conviction for being in possession of the .22
caliber rifle and the ammunition found in his basement.     We must
affirm a jury verdict if, taking all facts in the light most
favorable to the verdict, a reasonable juror could have found the


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                                   3
defendant guilty of the charged conduct beyond a reasonable doubt.
See United States v. Matra, 

, 840 (8th Cir. 1988).


     Balanga bases his insufficiency argument on his assertion that
he did not possess a key to his basement door's padlock while
Dennis   stored   a   rifle    and    ammunition   in    Balanga's     basement.
Because he did not have a key to the basement, Balanga argues, he
did not have access to the .22 caliber rifle and the ammunition and
therefore did not possess them.2         We disagree.


     To convict Balanga of being a felon in possession of a
firearm,    the   government    had    the   burden     of   proving   beyond    a
reasonable doubt that he "'exercised ownership, dominion or control
over the    firearms   or     dominion   over   the     premises'"     where   the
firearms were stored.       United States v. Mabry, 

, 247 (8th
Cir. 1993) (quoting United States v. DePugh, 

, 1364
(8th Cir. 1993)) (emphasis added by Mabry).                  "In the absence of
evidence refuting the normal inference of dominion, showing that a
firearm was discovered at the defendant's residence suffices to
prove constructive possession."          

(rejecting
argument that defendant did not possess shotguns stored in his home
because they were in a room accessible only through his mother's
locked bedroom).


     In this case the jury could have reasonably concluded that
Balanga failed to refute the normal inference of dominion over his
own home.     While there was some testimony at trial to support
Balanga's assertion that he did not have a key to his own basement


     2
      Balanga does not challenge that he knew of the .22 caliber
rifle and the ammunition that was stored in his basement.       See
Reply Br. at 2 n.1 (acknowledging that evidence “precludes him from
effectively arguing for a reversal due to insufficient evidence of
knowledge”).

                                       -4-
                                        4
during the period in question, there was also evidence that Balanga
in fact retained a key.              See Trial Tr. at 122-23 (Lindstrom
            3
testimony).      When presented with such conflicting testimony, "[i]t
is the jury's duty, not ours, to review the credibility of these
witnesses and to weigh their testimony."               United States v. Logan,

, 360 (8th Cir. 1995).              Even without this conflicting
testimony, the jury could have reasonably rejected as incredible
the testimony      that    Balanga    locked    himself      away   from   his   own
basement.       See Mem. & Order, reprinted in Appellant's Add. at 3
("The evidence regarding the key or keys was a bit incredible.                   The
jury may    well    have   determined    that     no   one    voluntarily    locks
themselves away from their washer and dryer and clean and soiled
laundry for an indeterminate period.").4
                                       III.


     Balanga next argues that the district court erred in relying
on an Eighth Circuit Model Jury Instruction on the meaning of
"possession" in the context of 18 U.S.C. § 922(g)(1) rather than



     3
      At a state proceeding, Lindstrom had testified that Balanga
had no key to the basement when it contained the .22 rifle, but at
Balanga's federal trial Lindstrom indicated that she had lied at
the state proceeding at Balanga's request. See Trial Tr. at 105-
06. Lindstrom testified at trial that Balanga might have retained
a key during the period in question. See 

     4
      Balanga has not explained why his alleged lack of a key to
his basement door's padlock would have prevented him from accessing
his basement. Balanga has not suggested that he could not have
retrieved a key that was on loan, nor that the padlock could not
have been disabled by a locksmith.     Indeed, Balanga, a thrice-
convicted burglar, was apparently somewhat adept at cutting
padlocks off of doors himself.      See Presentence Investigation
Report (PSR) at ¶ 22 (explaining that Balanga's accomplice in a
burglary "advised authorities Balanga would cut off the padlock
securing the unit and install his own padlock.       He would then
return at a more convenient time to open the unit and remove the
merchandise.").

                                       -5-
                                        5
accepting Balanga's proposed jury instruction.   "When reviewing a
challenge to the jury instructions, we recognize that the district
court has wide discretion in formulating the instructions and will
affirm if the entire charge to the jury, when read as a whole,
fairly and adequately contains the law applicable to the case."
United States v. Casas, 

, 1230 (8th Cir. 1993).


     During trial, Balanga requested a jury instruction which read:


     Possession: Key to padlock You have been instructed that
     possession means "dominion and control." In determining
     whether Greg Balanga had "dominion and control" over the
     Mossberg .22 caliber rifle identified in Count Three and
     the ammunition listed in Count Four which were found in
     the locked basement of 311 North 19th Street, you must
     determine whether he had "dominion and control" over the
     key to the locked door. If he did not have "dominion and
     control" over the key to the locked door, he cannot have
     had dominion and control over the Mossberg .22 caliber
     rifle identified in Count Three and the ammunition in
     Count Four. United States v. Wright, 

(5th
     Cir. 1994); United States v. Eldridge, 

(8th
     Cir. 1993).


Reprinted in Appellant's Br. at 23.       Rejecting the requested
instruction, the district court issued Eighth Circuit Model Jury
Instruction Number 8.02 (1996), which provides, in part:


     A person who knowingly has direct physical control over
     a thing, at a given time, is then in actual possession of
     it.

          A person who, although not in actual possession, has
     both the power and the intention at a given time to
     exercise dominion or control over a thing, either
     directly or through another person or persons, is then in
     constructive possession of it.


Reprinted in Appellee's Br. at 20.


                               -6-
                                6
     The district court did not abuse its discretion in rejecting
Balanga's proposed jury instruction.       We have recently held that a
jury instruction patterned after Model Jury Instruction Number 8.02
"accurately stated the legal definitions of the various types of
possession, including constructive possession."           United States v.
Smith, 

, 148 (8th Cir. 1997).        By contrast, Balanga's
requested   jury   instruction   improperly     assumed    that    Balanga's
immediate possession of a key was necessary for him to have
dominion over the firearm in his basement.           As our decision in
Mabry makes clear, such dominion may be inferred, and possession of
a key did not have to be proven.         See 

.


                                   IV.


     Balanga finally argues that, because the district court failed
to examine the factual circumstances underlying Balanga's three
previous convictions in Colorado for second degree burglary, the
district court erred in enhancing Balanga's sentence pursuant to 18
U.S.C. § 924(e)(1) (1994).       Because Balanga failed to raise this
argument in the district court, we review this argument only for
plain error resulting in a miscarriage of justice.5               See United
States v. Petty, 

, 697 (8th Cir. 1993).


     5
      Balanga not only failed to raise this issue in the district
court, but Balanga's counsel strenuously argued against the
district court addressing the factual circumstances of Balanga's
previous convictions. See Sentencing Tr. at 15 ("[Y]ou're [the
district court] not supposed to get involved in a factfinding
decision. You're supposed to look at the elements of burglary.");
18 ("I think that, yes, Taylor [United States v. Taylor, 

(1990)] says look at the elements of burglary. It says that,
yes, and I say don't go on--you don't have to engage in factfinding
for this, but look at the scheme in Colorado, look at how Colorado
has chosen to deal with this crime, and take it from there."). The
district court accordingly declined to make any specific findings
of fact regarding the circumstances of Balanga's previous
convictions.

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                                    7
      Under 18 U.S.C. § 924(e)(1), a person previously convicted of
three violent felonies shall receive a minimum fifteen-year penalty
upon conviction of being a felon in possession of a firearm.                 Under
18 U.S.C. § 924(e)(2)(B)(ii) (1994), "burglary" is specifically
included as a violent felony.           An "objecting defendant bears the
burden of proving that a prior conviction is not a violent felony
. . . as defined in § 924(e)(2)."             Woodall v. United States, 

, 80 n.1 (8th Cir. 1995).             Because Balanga had previously
been convicted on three occasions of second degree burglary of
storage units in Colorado, the district court determined that
§ 924(e)'s fifteen-year minimum sentence applied, and sentenced
Balanga accordingly.


      In Taylor v. United States, 

(1990), the Supreme
Court analyzed the term "burglary" as it is used in 18 U.S.C.
§ 924(e)(2)(B)(ii).       The Court held that


      a person has been convicted of burglary for purposes of
      a § 924(e) enhancement if he is convicted of any
      crime,regardless of its exact definition or label, having
      the basic elements of unlawful or unprivileged entry
      into, or remaining in, a building or structure, with
      intent to commit a crime.

.    Where     a    state's   burglary    statute
penalizes conduct which does not fall into this generic definition,
a   sentencing    court      should   examine       whether,   in   the   specific
circumstances of a defendant's previous conviction for burglary,
"the charging paper and jury instructions actually required the
jury to find all the elements of generic burglary in order to
convict the defendant."         

      Colorado's second degree burglary statute provides that:



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                                        8
     A person commits second degree burglary, if he knowingly
     breaks an entrance into, or enters, or remains unlawfully
     in a building or occupied structure with intent to commit
     therein a crime against a person or property. . . .


Colo. Rev. Stat. § 18-4-203(1).         Because this provision penalizes
one who "knowingly breaks an entrance into" a building, 

therefore broader than the generic definition of burglary offered
by the Court in Taylor, Balanga contends that the district court
should have examined the facts presented in his charging papers to
ensure that he had not been convicted for merely breaking an
entrance into the storage units that he burglarized.6


     Assuming that the Colorado statute is broader than generic
burglary and    that   the   district    court   erred   in   not   examining
Balanga's Colorado charging papers, Balanga still has the burden of
demonstrating that a miscarriage of justice will occur if this
hypothetical error is not corrected.       See 

.       In
this case, a miscarriage of justice would occur only if Balanga's
sentence had been enhanced for a conviction for merely breaking an
entrance into--and not actually entering--the Colorado storage
units.


     Balanga has not presented any evidence, nor has he even
alleged, that his prior convictions for second degree burglary
resulted from merely breaking an entrance into the storage units in
Colorado.    In the Presentence Investigation Report (PSR), the


         6
       The government conceded at oral argument that Colorado's
second degree burglary statute is actually broader than generic
burglary. While we question whether this is an accurate evaluation
of Colorado law, see Armintrout v. People, 

, 579 (Colo.
1993) ("second degree burglary require[s] the unlawful entry into
a 'building or occupied structure'" (citing Colo. Rev. Stat. § 18-
4-203(1))), this is not an issue that we need reach on review for
plain error.

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                                    9
United        States   probation   officer    reported   that,    for    each   of
Balanga's previous burglaries, items had been stolen from the
storage units.          See PSR at ¶¶ 20-22 (describing June 24, 1987
conviction for second degree burglary in Denver County District
Court in Denver, Colorado), ¶¶ 23-24 (describing May 26, 1987
conviction for second degree burglary in Jefferson County District
Court in Golden, Colorado), ¶¶ 24-27 (describing October 1, 1987
conviction for second degree burglary in Adams County District
Court in Brighton, Colorado, and related conviction on March 25,
1987 for theft of property in Adams County Court in Brighton,
Colorado).       Facts recited in a PSR, although hearsay, may be relied
upon by a court unless they are in dispute.              Cf. United States v.
Beatty, 

, 690 (8th Cir. 1993); see also 

      ("Generally,   the   government   establishes      prior   violent
felonies warranting a § 924(e)(1) enhancement by submitting the PSR
listing defendant's prior convictions.           Objections to a PSR must be
made prior to the sentencing hearing, and the probation officer may
then conduct a further investigation and revise the PSR.                 Because
the PSR when challenged is not evidence, the government also has an
opportunity at the sentencing hearing to introduce additional
evidence regarding the disputed facts.") (quotations, citations,
alterations, and note omitted).7


          7
       While raising a variety of challenges to other factual
statements in his PSR, see PSR Add. at 1-5, Balanga has not
challenged the PSR's descriptions of his Colorado burglary
convictions. See 

to make an objection, Balanga
deprived the prosecutor of an opportunity to submit evidence
supporting the PSR's statements to the sentencing court.     See
Woodall v. United States, 

, 80 (8th Cir. 1995) ("To
establish that [the defendant's prior] burglary convictions were
violent felonies under Taylor, the sentencing court needed to
determine either that the applicable [state] statutes, or the
indictments or jury instructions in [the defendant's] cases,
revealed 'generic' burglaries.    The PSR did not contain that
information.       If [the defendant's] counsel had timely objected on

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                                        10
     Balanga has failed to show that any miscarriage of justice has
occurred.   The description of Balanga's prior convictions contained
in the PSR demonstrates that he did more than merely break an
entrance into storage units; rather, to obtain stolen items it was
necessary    for     him   to   enter    the    burglarized      storage    units.
Balanga's    prior     convictions      for    second   degree    burglary    are
therefore consistent with convictions for generic burglary under
Taylor,   and   the    enhancement      of    his   sentence   under   18   U.S.C.
§ 924(e)(1) was proper.


     Accordingly, we affirm the district court.


     A true copy.


            Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




that ground, the probation officer or the government could have
supplied the missing information prior to or at the sentencing
hearing.").

     While not challenging the PSR's description of his previous
convictions for second degree burglary in Colorado, Balanga did
file an objection to the PSR insisting that he is actually innocent
of the burglary convictions.     See Statement of Gregory Balanga
(July 15, 1996) (stating that Balanga had purchased a U-Haul load
of stolen items from Frank Hernandez without knowing that they were
stolen and sold them at a flea market).      Balanga stipulated at
trial that he had, in fact, been convicted of second degree
burglary three times in Colorado state courts, see Trial Tr. at 66,
and conceded at oral argument that two of these convictions were
pursuant to guilty pleas. Balanga does not suggest that his prior
convictions have been overturned or in any way invalidated, and we
do not construe Balanga's efforts to avoid responsibility for his
past convictions as a specific challenge to the PSR's descriptions
of those past convictions.

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