United States v. Dante Glinn
2017 U.S. App. LEXIS 12954
8th Cir.2017Background
- On Aug 25, 2015 a man grabbed a Kimber .45 from behind a glass counter at Sports Outfitters (a federally licensed dealer) and ran; surveillance captured the theft.
- Police investigated: witness interviews, surveillance review, and crime-scene evidence; Glinn was stopped two days later and made statements that drew suspicion.
- Indictment charged Glinn with theft of a firearm from a federally licensed dealer in violation of 18 U.S.C. §§ 922(u) and 924(m); jury trial occurred in Jan 2016 and returned a guilty verdict.
- At trial Glinn sought a jury instruction requiring proof of intent to permanently deprive the owner; the court refused and instructed on three elements (act of taking, taken from business inventory, interstate nexus).
- At sentencing the court set a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6)(A) based on Glinn’s admitted marijuana use (making him a “prohibited person”), added +2 under § 2K2.1(b)(4)(A) because the firearm was stolen, and imposed 78 months’ imprisonment plus 3 years supervised release.
- The court added a supervised-release condition prohibiting alcohol use and entry into bars/taverns; the court explained this was to address risk of cross-addiction and support substance-abuse treatment.
Issues
| Issue | Glinn's Argument | Government's Argument | Held |
|---|---|---|---|
| Jury instruction: whether intent to permanently deprive must be an element of § 922(u) theft | Instruction should require proof defendant intended to permanently deprive Sports Outfitters of the firearm | The word "steal" and circuit precedent do not require a separate intent-to-permanently-deprive element; current instruction sufficient | Affirmed: no intent element required; instruction adequate (abuse-of-discretion review) |
| Base offense level: whether § 2K2.1(a)(6)(A) (level 14) was properly applied based on Glinn being a prohibited person | District erred; evidence insufficient and pretrial-services material improperly used | District relied primarily on Glinn’s admissions during traffic stop (audio) showing marijuana use, supporting prohibited-person finding | Affirmed: factual finding not clearly erroneous; base level 14 proper |
| Stolen-firearm enhancement: whether +2 under § 2K2.1(b)(4)(A) double-counted | Enhancement unjustified because base level already accounts for stolen firearm (application note 8(A)) | Application note 8(A) applies only when base level is set under (a)(7); (a)(6) does not account for stolen status, so enhancement applies | Affirmed: +2 proper; no impermissible double counting |
| Supervised-release alcohol condition: whether banning alcohol and bars is unreasonable | Condition unrelated to offense, no alcohol problems in record, so condition is excessive | Condition reasonably related to rehabilitation given drug use, risk of cross-addiction, and desire for treatment | Affirmed: condition within sentencing court’s discretion |
Key Cases Cited
- United States v. Young, 613 F.3d 735 (8th Cir. 2010) (standards for review when refusal of instruction denies a defense)
- United States v. Merrell, 842 F.3d 577 (8th Cir. 2016) (instructions must fairly submit issues to the jury)
- United States v. Van Elsen, 652 F.3d 955 (8th Cir. 2011) (discussion that theft under § 922(u) does not require separate intent-to-permanently-deprive element)
- United States v. Sykes, 854 F.3d 457 (8th Cir. 2017) (standard of review for Guidelines interpretations)
- United States v. Vickers, 528 F.3d 1116 (8th Cir. 2008) (review standards quoted for Guidelines issues)
- United States v. Durham, 618 F.3d 921 (8th Cir. 2010) (abuse-of-discretion review for supervised-release conditions)
- United States v. Jorge-Salgado, 520 F.3d 840 (8th Cir. 2008) (factors for reasonable conditions of supervised release)
- United States v. Forde, 664 F.3d 1219 (8th Cir. 2012) (upholding alcohol prohibition for regular drug user to prevent relapse)