FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 29, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-8040
                                                 (D.C. No. 2:13-CR-00098-NDF-1)
JAMES KEITH BEIERLE,                                         (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, O’BRIEN, and PHILLIPS, Circuit Judges.
                  _________________________________

      In February 2014, James Keith Beierle was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At his first sentencing

hearing, the district court reviewed Beierle’s criminal history from the 1980s, which

included state felony convictions for burglary, robbery, and possession of a weapon

by a prisoner. The court determined that these three convictions qualified as violent

felonies under the residual clause1 of the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(2)(B)(ii). Beierle’s status as an armed career criminal required the

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        The residual clause included in ACCA’s definition of a “violent felony” any
offense that “involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
district court to impose a mandatory-minimum fifteen-year sentence. But the next

year, while Beierle’s direct appeal was still pending, the Supreme Court struck down

ACCA’s residual clause on vagueness grounds. See Johnson v. United States, 

, 2557, 2563 (2015).

      In response to Johnson, we reversed Beierle’s ACCA-imposed fifteen-year

sentence while affirming his conviction. See United States v. Beierle, 

,

1201–02 (10th Cir. 2016) [Beierle I]. On remand, the district court resentenced

Beierle to seventy-seven months of imprisonment under the U.S. Sentencing

Guidelines. Beierle now attacks that sentence, too, arguing that the district court

miscalculated his total offense level by adding two levels because his offense

“involved three or more firearms,” see U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1) (U.S. Sentencing Comm’n 2013), and by adding another four levels

because he “used or possessed any firearm . . . in connection with another felony

offense,” see 

Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742, we affirm Beierle’s sentence.

                                   BACKGROUND

      Beierle’s current troubles began on a Sunday afternoon in January 2013 at a

truck stop in Burns, Wyoming. Beierle was standing in the checkout line when he

met a couple—Mr. Redfern and his wife, Ms. Nygren—whom he eventually invited

to “hang out” and drink beer at his shop. Supp. R. Vol. IV at 563.

      After about three hours, Redfern and his companions left, and Beierle thought

that they had gone for good. But when he went back into his house, Beierle saw

                                           2
Redfern’s five-year-old daughter still there, playing with his own daughter. Beierle

asked his daughter what was going on, and she replied that Redfern had come in, said

that he would be right back (but not where he was going), and left the little girl. At

first, Beierle was “shocked”—“[h]e couldn’t believe that these people that he had just

met had left their daughter with him.” Supp. R. Vol. Ib at 131. Then Beierle grew

“uncomfortable” and “angry” at Redfern for leaving the child in his care. Supp. R.

Vol. V; Supp. R. Vol. Ib at 131.

       The sun set and two hours passed before Redfern called to say that he was on

his way back to pick up his daughter. As soon as Redfern’s car pulled up to the shop,

Beierle sent the little girl over to her father, and she climbed in the backseat of the

car.

       Meanwhile, in front of the shop, Redfern approached and verbally confronted

Beierle. By this point, Beierle was “very angry”; he wanted Redfern to take the little

girl and leave his property. Supp. R. Vol. Ib at 134. Beierle was so angry, in fact, that

he never could remember exactly what Redfern said, only that the man had “become

mouthy[,] rambling on about a lot of nothing,” Supp. R. Vol. IV at 564, and “talking

crap, mumbo jumbo,” Supp. R. Vol. Ib at 135. So Beierle sent his own daughter

toward the back of the shop and picked up an assault rifle that he’d set just inside the

doorway. Supp. R. Vol. Ib at 136.

       Holding the gun, Beierle told Redfern, “You need to get the hell out of here.”

Supp. R. Vol. II at 318. Redfern reacted by warning Beierle to “[g]et the gun out of

[his] face” and grabbing, unsuccessfully, at the barrel. Supp. R. Vol. Ib at 138.

                                            3
Beierle replied that he “wouldn’t waste a bullet on him.” Supp. R. Vol. II at 318.

Instead, while standing within ten feet of Redfern, Beierle fired a few rounds to the

west, into a stand of trees. Scared, Redfern got back in the car. But then he “mouthed

off a little more,” so Beierle fired a few more rounds in the opposite direction, toward

a pasture. Supp. R. Vol. II at 312. Redfern closed the car door and started the car

down the driveway. About 150 to 200 feet away from the shop, however, the car’s

brake lights flashed on, and Beierle, who had followed Redfern about 30 feet down

the driveway, fired two more rounds into the pasture. At last the car—and Redfern—

left. Only then did Beierle feel “secure” enough to lock the rifle in a gun safe in his

garage.2 Supp. R. Vol. V.

      At 6:24 that evening, the local sheriff’s department received a 9-1-1 call about

an incident involving a firearm and “shots fired” at Beierle’s property. Supp. R.

Vol. II at 355. After speaking with Redfern and his companions about the incident,

the responding deputies tried to speak with Beierle by phone but got no answer. At

about 8 or 9 p.m., two deputies drove out to Beierle’s property. Though they saw

lights on inside the house, no one answered when they knocked on the door. Nor did

they find anyone in the shop. Next to the shop door, however, the deputies noticed

four spent shell casings. They found two more shell casings between twenty and forty

feet down the driveway. All six casings were .223 caliber, and their locations fit “the

description of events” that Redfern and his companions had provided to the deputies.


      2
        The shop and garage are separate structures, two of several outbuildings on
Beierle’s property.
                                            4
Supp. R. Vol. Ib at 114. So too did the presence of gunshot residue on Redfern’s hat,

shirt, and pants.

       Two days after the incident, Deputy Wilson—whom Beierle had known for

over a decade—convinced Beierle to give “his side of the story.” Supp. R. Vol. Ib at

125. In a recorded interview that day, Beierle described meeting “some bad cats

down at the truck stop.” 

He had made a mistake, he told Deputy Wilson, to

invite these strangers to his property, and he “should have just called the sheriff’s

department” when he discovered the little girl still in his house. 

But he

hadn’t. Instead, Beierle admitted to Deputy Wilson that he had fired a .223-caliber

assault rifle into the air to get Redfern to leave, because Redfern had grown

“mouthy” when he had returned to pick up his daughter. Supp. R. Vol. II at 301.

Deputy Wilson asked “very specifically” what Redfern had said to provoke this

reaction, but Beierle responded, “I don’t remember. I was angry. I just wanted them

to leave. [Redfern] was talking crap, mumbo-jumbo.” Supp. R. Vol. Ib at 134–35.

Deputy Wilson also directly asked whether Beierle had been threatened, but again,

Beierle couldn’t remember: “I was hot; I was fuming, so I didn’t really pay attention

to his verbiage.” Supp. R. Vol. V. But Beierle did tell Deputy Wilson that Redfern

had left a voice-mail message on his shop phone at about 7 p.m. (after the incident

and the 9-1-1 call). In the message, Redfern had told Beierle, “You don’t shoot your

gun off in my face in front of my daughter.” Supp. R. Vol. II at 316.

       After speaking with Deputy Wilson for almost an hour, Beierle agreed to

provide a written statement. In three handwritten pages, Beierle summarized what he

                                            5
had just told Deputy Wilson. He said that Redfern “became mouthy” on his return, so

Beierle had fired the assault rifle in three bursts: first a few rounds to his right

(causing Redfern to hesitate but keep talking), then a few to his left (causing Redfern

to get in the car and start backing up), and finally, “a couple more” to oust Redfern

from his property. Supp. R. Vol. IV at 564–65. Beierle said that about twenty minutes

later, Redfern called his shop and left a threatening voice-mail message. 

After listening to it, Beierle explained, he left and spent the next few hours at a

neighbor’s “[t]o avoid retaliation.” 

after this initial interview, Deputy Wilson and his supervisor,

Sergeant Hollanbach, returned to Beierle’s property to retrieve the gun that Beierle

had fired. Beierle signed a permission-to-search form, and then led the sergeant and

the deputy into his garage, toward “a pretty big gun safe” with a combination lock.

Supp. R. Vol. Ib at 141–42. Once at the safe, Beierle started to turn the dial on the

lock but paused. He walked to the back of the safe, looked at a piece of paper on

which, he told the officers, he kept the combination, and “opened the safe right up.”

Supp. R. Vol. II at 192. From the safe, Beierle pulled an assault rifle and a loaded

magazine and said either, “This is what you’re here to get,” or, “This is the one

you’re looking for,” before passing the rifle and magazine to Deputy Wilson.

Supp. R. Vol. Ib 142–43; Supp. R. Vol. II at 193. In the safe, the deputies saw three

more firearms: two rifles and a shotgun.

       While Deputy Wilson secured the assault rifle and ammunition that Beierle

had handed him, Sergeant Hollanbach asked Beierle, “Correct me if I’m wrong, but

                                             6
don’t you have a felony conviction?” Supp. R. Vol. II at 194. Beierle admitted that he

did and, in response to the sergeant’s next question, explained that he had used his

then-wife’s social-security number to acquire the assault rifle, as well as another gun,

a year or two earlier. Beierle also told the sergeant that the safe and its contents

belonged to his father, who was living in California, and that he knew that he needed

to return all of it to his father’s property. Sergeant Hollanbach then asked Beierle to

provide another written statement, and this time Beierle wrote: “This gun was left

behind by my ex-wife, and at [sic] the evening in question when all the trash talk

became threatening, I grabbed and shot this gun.” Supp. R. Vol. IV at 566.

      The next morning, Sergeant Hollanbach asked Beierle to come to the sheriff’s

office to discuss the provenance of the assault rifle in more detail. Beierle complied

and, assuring the sergeant that he “didn’t forge any of it,” described how he had

gotten the necessary paperwork from a friend with a Federal Firearms License.

Supp. R. Vol. II at 196–97. Beierle had given the paperwork to his then-wife to

complete and sign, and then returned it to his friend, who ordered two guns for the

couple, including the assault rifle at issue. That rifle, which had been meant as a gift

for his then-wife, had stayed with Beierle after the couple divorced. (So too had the

other gun; although Beierle claimed to have disposed of it soon after the split.3)

Sergeant Hollanbach told Beierle that “it wasn’t a good idea” to have firearms and

ammunition at his home, “with him being a felon,” and that “once this was done

[Beierle] needed to get the safe moved out and take it back to his dad’s house.”

      3
          This gun wasn’t one of the four found in the safe.
                                            7
Supp. R. Vol. II at 197. Beierle agreed and said, “You know, when I put the [assault

rifle] back in the safe the other day . . . I was thinking about doing that.” 

98.

       On February 1, 2013, Beierle voluntarily surrendered a box of ammunition

“with a variety of different types in it” to the sheriff’s department, and Sergeant

Hollanbach sent all of the department’s reports to the federal Bureau of Alcohol,

Tobacco, and Firearms (ATF). Supp. R. Vol. II at 202. From there, the ATF took

over the investigation.

       Meanwhile, also in February 2013, Wyoming state prosecutors charged Beierle

with (among other crimes) aggravated assault under section 6-2-502(a)(iii) of the

state’s criminal code. See Wyo. Stat. Ann. § 6-2-502(a)(iii) (2017) (“A person is

guilty of aggravated assault and battery if he . . . [t]hreatens to use a drawn deadly

weapon on another unless reasonably necessary in defense of his person, property or

abode or to prevent serious bodily injury to another[.]”). The state dropped all the

charges, however, once the federal felon-in-possession prosecution began in

May 2013.

       The federal case went to trial in February 2014—over a year after the

incident—and by then, Beierle had dramatically changed his story. Supported by

testimony from a former employee, two friends, and his father, Beierle denied that he

had ever possessed, handled, or fired the assault rifle.4



       4
           Beierle stipulated to being a felon and to the assault rifle’s interstate nexus.
                                               8
       Beierle testified, instead, that after Redfern (who didn’t testify) left his

daughter behind, Redfern threatened him over the phone, “creat[ing] a fear.” Supp. R.

Vol. II at 265. So Beierle brought three of his employees, who happened to be

working on his property that night, into his shop and “briefed them” on the situation.

saw unfamiliar headlights travel up his driveway and recognized Redfern,

so he sent Redfern’s daughter to the car. When Redfern got out and turned toward

Beierle “to continue making his threat,” Beierle told his employees, “Whatever

happens, happens” and took his own daughter upstairs. 

According to

Beierle, “Nico,” one of the three employees, said, “I will handle this,” and went

outside with another employee. 

From upstairs, Beierle then heard

“screaming, some hollering, and rapid fire of a gun, some silence, maybe a minute or

two, . . . [then] another expel of fire, four, maybe five shots[] . . . .” 

Beierle claimed to have fabricated a contrary story for law enforcement because he

“d[id]n’t know anybody else’s situation” (hinting, without quite saying so, that he

doubted his Hispanic employees’ immigration status).

       Beierle further testified that Nico had used an assault rifle that his ex-wife had

left behind in his garage, the building next to his shop, after they’d separated. Beierle

didn’t even see the gun until three days after the incident, when he walked into the

shop and saw it lying on a table saw. Without touching the gun, he immediately

walked out of the building. Eventually, Beierle called his father in California for the

combination to his gun safe, which he wrote on the wall abutting the safe. Then,

Beierle passed along the location of the combination to a friend and sometime-

                                              9
employee and asked the man to place the gun in the safe for him. According to

Beierle, the man did so while Beierle wasn’t home. During cross-examination,

Beierle admitted that he’d eventually used a skid-steer loader to move the safe out of

his garage and onto his father’s property.

      The jury didn’t believe Beierle’s updated version of events. After deliberating

for less than five hours, it found Beierle guilty of being a felon in possession of the

sole firearm charged—the assault rifle.

      Nor did the sentencing court find Beierle’s testimony credible. At the first

sentencing in June 2014, the court thought that ACCA required a fifteen-year

mandatory-minimum sentence, rendering the government’s proposed enhancements

for specific offense characteristics immaterial. The court nevertheless recognized that

if its ACCA analysis turned out to be incorrect, then the § 2K2.1(b)(1)(A)

enhancement for multiple firearms would affect the applicable range under the U.S.

Sentencing Guidelines. The court therefore stated:

      It is my conclusion that the evidence from trial is sufficient to show
      actual possession of three or more firearms. The defendant opened the
      safe after referring to the safe code once he was asked by law
      enforcement to retrieve the assault rifle. The assault rifle was in the
      same safe as the other guns that result in the enhancement.

      R. Vol. I at 128.

      After Beierle I vacated Beierle’s ACCA-based sentence and remanded for

resentencing, see Beierle 

–02, the district court held a second

sentencing hearing in April 2016. At that hearing, the district court addressed the

specific-offense-characteristic enhancements in more detail because they, rather than

                                             10
ACCA’s mandatory minimum, now guided the sentence. As a threshold matter, the

court noted that although its application of § 2K2.1(b)(1)(A) “was perhaps not well

stated” during the first sentencing hearing, it remained the court’s finding “that the

offense involved four firearms.” R. Vol. III at 383–84. The court noted that:

(1) Beierle had opened the safe; (2) he had handed the assault rifle to Deputy Wilson

and Sergeant Hollanbach; (3) at the time, the other three weapons “were in that same

safe”; and (4) those three weapons “were as accessible as the assault rifle was to the

defendant.” 

Thus, the court concluded, “my finding remains, as stated in

the prior sentencing, [that] the two-level enhancement is properly applied because the

preponderance of evidence shows actual possession [of the three additional guns] by

the defendant.” 

court turned to § 2K2.1(b)(6)(B)’s four-level enhancement. The

court noted that Beierle had twice told law enforcement “that he grabbed the gun and

not only threatened to use it but actually did use the weapon against Mr. Redfern.”

R. Vol. III at 385. And although Beierle had recanted these statements at trial, all of

the physical evidence—including the shell casings in Beierle’s driveway, the gunshot

residue on Redfern’s clothing, and the voice-mail message from Redfern accusing

Beierle of pointing a gun at him—supported those early statements. “Further,” the

court found, “there’s really no indication of any actions by Mr. Redfern suggesting

that it was reasonably necessary for the defendant to threaten or to use the firearm to

protect either himself, others, or his own property.” R. Vol. III at 385. Accordingly,

the court determined that the underlying offense of felon-in-possession “occurred

                                           11
during the commission of aggravated assault and battery under [Wyo. Stat. Ann.

§ 6-2-502(a)(iii)].” 

       The court set Beierle’s base offense level at 20, because the assault rifle was

capable of accepting a high-capacity magazine. Next, the court added two levels

because “the offense conduct involved three or more firearms possessed by the

defendant,” plus four more levels because the offense occurred during the

commission of an aggravated assault and battery. 

level, along with

Beierle’s criminal-history category IV, yielded a sentencing range of 92 to 115

months.5 But because Beierle had done well enough in prison since his first

sentencing that he’d earned a transfer to another facility, the court varied downward

two levels for “post-offense rehabilitation.” R. Vol. III at 412. In the end, the court

resentenced Beierle to seventy-seven months of imprisonment, plus the same three

years of supervised release.

       Beierle now appeals that sentence.

                                     DISCUSSION

       Beierle acknowledges that because the assault rifle underlying his violation of

18 U.S.C. § 922(g)(1) qualified as “a semiautomatic firearm capable of accepting a

large capacity magazine” under § 2K2.1(a)(4)(B), his base offense level is 20. But he

       5
         Despite the wide and material gulf between Beierle’s trial testimony and his
interviews with law enforcement, the government never asked the court to apply
§ 3C1.1’s two-level increase for “[o]bstructing or [i]mpeding the [a]dministration of
[j]ustice.” See U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(B), (G) (U.S.
Sentencing Comm’n 2013) (listing both the commission of perjury and the provision
of “materially false statement[s] to a law enforcement officer” as examples of
conduct covered under this enhancement).
                                            12
disputes the district court’s application of two enhancements based on the specific

characteristics of his offense: (1) a two-level enhancement under § 2K2.1(b)(1)(A)

because the “offense involved” between three and seven firearms, and (2) a four-level

enhancement under § 2K2.1(b)(6)(B) because he “used or possessed” a firearm “in

connection with another felony offense”—specifically, aggravated assault as defined

in Wyo. Stat. Ann. § 6-2-502(a)(iii).

      In considering a sentencing challenge such as Beierle’s, we review the district

court’s interpretation of the sentencing guidelines de novo but its factual

determinations for clear error, United States v. Hoyle, 

, 1172, 1174

(10th Cir. 2014), remembering that the government must prove any fact underlying a

sentence enhancement by a preponderance of the evidence, United States v. Garcia,

, 478 (10th Cir. 2011). Under the clear-error standard, we can’t

substitute our own judgment for the district court’s. 

. Rather,

we must look at the evidence and resulting inferences in the light most favorable to

the district court’s factual findings, and we may disturb those findings only if they

have no basis in the record. 

.

      With that dual standard of review in mind, we address the challenged sentence

enhancements in turn.

A.    Section 2K2.1(b)(1)(A)’s Two-Level Enhancement for Offenses Involving
      Three or More Firearms

      Section 2K2.1(b)(1)(A) states that if “the offense involved” between three and

seven firearms, then the sentencing court should add two offense levels. “For


                                           13
purposes of calculating the number of firearms under [this subsection],” Application

Note 5 tells us to “count only those firearms that were unlawfully sought to be

obtained, unlawfully possessed, or unlawfully distributed, including any firearm that

a defendant obtained or attempted to obtain by making a false statement to a licensed

dealer.” U.S. Sentencing Guidelines Manual § 2K2.1 n.5 (U.S. Sentencing Comm’n

2013). From these listed unlawful activities, the district court concluded that “the

preponderance of the evidence show[ed] actual possession.” R. Vol. III at 384.

Beierle now challenges this determination, arguing that he never had actual

possession of any firearm other than the one underlying his conviction. Because

Beirele did not make this objection in the district court, we review for plain error.

United States v. Lin, 

, 1190 (10th Cir. 2005).

       “Actual possession exists when a person has direct physical control over a

thing.” Henderson v. United States, 

, 1784 (2015). Beierle’s early

statements to the deputies, as well as the physical evidence recovered outside the

shop, establish that Beierle picked up the assault rifle and fired it. But the

government concedes in its briefing6 that it had no evidence that Beierle had ever

taken actual possession of any of the three other firearms found in the safe. We agree

that the district court legally erred by equating accessibility of the other three

       6
        In its brief, the government stated that the record was “clear” regarding the
absence of actual possession. Appellee’s Br. at 23. But at oral argument, the
government wavered, suggesting that Beierle was in actual possession of all four
firearms when he used a loader to move the safe. Nothing in the record suggests that
any of the firearms was in the safe while Beierle moved it, though. And even if such
evidence existed, we think it a stretch to hang a determination of actual possession on
such gossamer.
                                            14
firearms with “actual possession,” R. Vol. III at 384, and that this error was plain.

See 

(explaining that a felon who “hold[s] his firearms

himself” is in actual possession); see also United States v. Duran, 

,

1330 (10th Cir. 1998) (explaining, in the context of instructional error, that an error

is “plain” if it is “contrary to well-settled law”).

       Though Beierle has met his burden to show the first two prongs of the plain-

error analysis, he fails on the third. See Fed. R. Crim. P. 52(b) (“A plain error that

affects substantial rights may be considered even though it was not brought to the

court's attention.”); United States v. McGehee, 

, 876 (10th Cir. 2012)

(explaining that to “successfully run the gauntlet” of plain-error review, a defendant

must demonstrate (1) an error that (2) is plain, (3) affects substantial rights (meaning

that it affected the outcome of the proceedings), and (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings). He has not shown prejudice

from the error, that is, a reasonable probability that the error led to a different

sentencing outcome. See 

–91.

       Beierle fails on the prejudice prong because the evidence shows that he

constructively possessed the other three firearms in the safe. Section 2K2.1(b)(1)(A)

covers both constructive and actual possession of firearms. United States v.

Gambino-Zavala, 

, 1228–29 (10th Cir. 2008). And the district court’s

use of the phrase “actual possession” doesn’t confine our appellate review to that

form of possession. “We have long said that we may affirm [the district court] on any

basis supported by the record, even if it requires ruling on arguments not reached by

                                             15
the district court . . . [,]” provided that (1) we have the power to consider the alternate

ground and (2) the opposing party has had a fair chance to address it. Jordan v. U.S.

Dep’t of Justice, 

, 1200 (10th Cir. 2011) (quoting Richison v. Ernest

Grp., Inc., 

, 1130 (10th Cir. 2011)). As the Supreme Court explained in

S.E.C. v. Chenery Corp., 

, 88 (1943), “It would be wasteful to send a case

back to a lower court to reinstate a decision which it had already made but which the

appellate court concluded should properly be based on another ground within the

power of the appellate court to formulate.”

       The parties to this case have already battled, in their appellate briefing and at

oral argument, over the existence of constructive possession. The record on appeal

contains the facts to support their arguments. So it’s both efficient and fair to reframe

the question: Was Beierle in constructive possession of the three other firearms in the

safe, even if the evidence didn’t show that he was in actual possession of them? Cf.

.

       In evaluating this question, we are mindful of a recent change in our circuit’s

law about what it means for a person to constructively possess something. Just

months after Beierle filed his notice of appeal, we published United States v. Little,

(10th Cir. 2016).7 To establish constructive possession before Little,

the government didn’t need to prove that an individual intended to exercise dominion

or control over an object. See United States v. Colonna, 

, 1179 (10th

       7
        Beierle’s case was on direct appeal when we issued Little, so he gets the
benefit of its ruling, whatever that may be. Griffith v. Kentucky, 

, 328
(1987).
                                            16
Cir. 2004), overruled by 

. Instead, the government met its

burden by proving that a defendant had known about the firearm and had power to

exercise dominion or control over it. 

–79. But as we

explained in 

, the Supreme Court’s intervening decision in

Henderson changed all that. “In Henderson, the Court squarely held that constructive

possession requires both power to control an object and intent to exercise that

control.” 

(emphasis added); see also 

(explaining that constructive possession exists when a person who lacks direct,

physical control over an object “still has the power and intent to exercise control

over” it).

       Here, the district court had abundant evidence that Beierle had the power and

intent to exercise control over the firearms seized from the safe in his shop.8 Beierle

showed his power to control the firearms when, using a combination that he had

written down, he opened the safe in front of the deputies, selected one of the four

firearms inside, and passed it to Deputy Wilson and Sergeant Hollanbach with the

statement, “This is the one you’re looking for.” All four firearms were cached on

Beierle’s property, in a shop that he solely occupied, in a safe that he alone on the




       8
         Despite the government’s concession that Little applies to Application
Note 5, we don’t decide the issue today. See Massachusetts v. United States, 

, 624 n.23 (1948) (“We are not bound to accept [the government’s concession] as
either sound or conclusive of the litigation.”). Beierle’s inability to show the
substantial-prejudice prong of plain error would subsume any ruling that we made on
the matter.
                                           17
property could open. The only other person with the combination (his father) was

over a thousand miles away.

      In Little, we reached the same conclusion under similar circumstances. There,

law enforcement found two stolen guns in a cramped “well house” that Little rented

from a woman who lived on the same property, in a nearby trailer. 

. One of the guns was inside a duffel bag that was either in or under a sleeping

bag on the bed (which took up the length of the house and was the only place to sit).

gun was under the bed. 

also plainly visible. 

the time that the guns had been reported stolen, Little had placed

a lock on the well house’s door. 

Then, on the day that officers searched

the well house, they saw Little leave the well house about seven-and-a-half minutes

after they arrived and began talking to Little’s landlady. 

1183. Under

these circumstances, we determined that it would have been unreasonable for a jury

to conclude that Little didn’t know about the weapons’ presence, or that he didn’t

intend to exercise command over their locations. 

      In 

, we determined that the evidence would have

“compelled” a properly instructed jury to find beyond any doubt that the defendant

intended to exercise control over the weapons in the well house.9 By comparison, the


      9
         The facts of Little “left [the court] with no doubt that [the defendant]
intended to exercise control over the weapons.” 

n.4. That conclusion grew
out of the government’s failure to argue harmless error and the court’s resultant
burden to determine whether the error’s harmlessness was certain, an analysis
“necessarily more stringent than the ‘reasonable doubt’ test we would apply had the
government thoroughly developed its harmlessness argument.” 

v.
                                          18
circumstances of this case need show by only a preponderance of the evidence that

Beierle intended to exercise control over the weapons in the safe. Because the record

supports such a finding, Beierle can’t establish the prejudice prong of plain error.

      For these reasons, we decline to command a do-over just to allow the district

court to correct its colloquial, rather than technical, use of the term “actual

possession.” See 

. Instead, we affirm the district court’s

application of § 2K2.1(b)(1)(A)’s two-level enhancement, though on grounds of

constructive, rather an actual, possession of the three additional firearms.

B.    Section 2K2.1(b)(6)(B)’s Four-Level Enhancement for Defendants Who
      Use or Possess a Firearm in Connection with Another Felony Offense

      Section 2K2.1(b)(6)(B) provides that if the defendant “used or possessed any

firearm or ammunition in connection with another felony offense,” then the

sentencing court should apply a four-level increase. Here, the district court applied

this enhancement because Beierle had used the assault rifle “in connection” with his

commission of aggravated assault under Wyo. Stat. Ann. § 6-2-502(a)(iii). Beierle

claims that this finding was clearly erroneous.

      Section 6-2-502(a)(iii) provides that an individual is guilty of aggravated

assault and battery if he “[t]hreatens to use a drawn deadly weapon on another.” The

statute excuses such conduct, however, when it is “reasonably necessary in defense

of [the individual’s] person, property or abode or to prevent serious bodily injury to

another.” 

to this exception, Beierle claims that the district court

Mullin, 

, 920 (10th Cir. 2003); United States v. Serawoop, 

,
669 (10th Cir. 2005)).
                                            19
clearly erred in finding that “there[was] really no indication of any actions by

Mr. Redfern suggesting that it was reasonably necessary for [Beierle] to threaten or

to use the firearm to protect either himself, others, or his own property.” R. Vol. III

at 385. The events of that January night, Beierle points out, were disputed. Thus,

although the district court “chose to credit” the government’s version, “within [the]

universe of facts, there was in fact an ‘indication’ that Mr. Beierle was threatened,

and that it was, therefore, ‘reasonably necessary’ for him to threaten to use or to use

the firearm for protection.” Aplt.’s Opening Br. at 23.

       The existence of an alternate version of events, however, isn’t enough to

render the district court’s finding clearly erroneous. To succeed with this argument,

Beierle would have to convince us not merely that the record provided some basis for

a different finding, but that the district court’s finding itself was implausible or

impermissible in light of the record. 

. And he would have to

do so through a prism that casts the evidence and the inferences therefrom in the light

most favorable to the district court’s finding, United States v. Kitchell, 

, 1226 (10th Cir. 2011), and in a context where the district court’s credibility

determinations are “virtually unreviewable,” 

(quoting United

States v. Virgen-Chavarin, 

, 1134 (10th Cir. 2003)). Based on the

record, he can’t make that showing.

       To the contrary, the record contains plenty of evidence that Beierle committed

aggravated assault and battery and that his actions weren’t “reasonably necessary”

under Wyo. Stat. Ann. § 6-2-502(a)(iii). Two days after the incident, when Deputy

                                            20
Wilson specifically asked whether Redfern had threatened him, Beierle couldn’t

remember; he explained that he had been too angry. Beierle could recall only that

Redfern had been “mouthy” and that he’d been “talking crap, mumbo jumbo.”

Supp. R. Vol. IV at 135; Supp. R. Vol. 1b at 135. Based on Beierle’s own words,

then, the district court didn’t clearly err in finding that nothing Redfern did or said

justified getting threatened with a drawn deadly weapon.

      Beierle’s assertion (in his second written statement) that he “grabbed and shot”

the assault rifle only “when all the trash talk became threatening” doesn’t change this

analysis. Supp. R. Vol. IV at 566. To avoid committing clear error, the district court

didn’t have to address each potentially contradictory fact in the record. And viewing

the second written statement in the light most favorable to the court’s finding, the

statement is probably less credible than Beierle’s earlier statement, in which he didn’t

mention feeling threatened. Moreover, even accepting the truth of the second

statement, “trash talk” (even when it “bec[omes] threatening,” Supp. R. Vol. IV at

566) doesn’t warrant firing a gun at the trash-talker. Cf. Hernandez v. State, 

, 676 (Wyo. 1999) (explaining, in the context of aggravated assault under section

6-2-502(a)(ii), that “the law of self-defense in Wyoming is a defense of necessity

which is evaluated under the totality of the circumstances and in light of what is

reasonable and appropriate”).

      Accordingly, the district court didn’t err in concluding by a preponderance of

the evidence that Beierle “used or possessed” the assault rifle “in connection with

another felony offense” under § 2K2.1(b)(6)(B). Cf. 

                                           21
(rejecting the argument that the district court clearly erred when, in applying

§ 2K2.1(b)(6)(B), it credited the testimony of a witness with a prior theft conviction).

We therefore affirm the district court’s application of the four-level enhancement.

                                   CONCLUSION

      The district court didn’t err in applying either of the two challenged sentencing

enhancements under § 2K2.1 of the guidelines. We therefore affirm (although on

slightly different grounds) Beierle’s new, seventy-seven-month prison sentence.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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