32 F.4th 659
8th Cir.2022Background
- On April 25, 2020, Aberdeen police observed Darrell Two Hearts carrying three bags from an SUV, arrested him, and seized a loaded handgun and holster from a light-gray backpack among those bags.
- A small plastic bag seized from Two Hearts’s pants pocket was submitted to the state lab; testing of one rolled-up baggie showed 0.26 grams of methamphetamine; investigators also found syringes and drug paraphernalia in the backpack.
- Police located a Facebook profile (posted March 14, 2020) showing Two Hearts pointing a gun; witnesses could not definitively say whether the pictured gun was real or the same gun recovered, but an ATF agent testified the photograph’s gun front was consistent with the recovered firearm.
- Two Hearts was tried and a jury convicted him under 18 U.S.C. § 922(g) on two alternative theories: unlawful user of a controlled substance (§ 922(g)(3)) and convicted felon (§ 922(g)(1)).
- At sentencing the district court applied a +4 level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (firearm possessed in connection with another felony—possession of a controlled substance) and imposed 71 months’ imprisonment.
- Two Hearts appealed, challenging (1) sufficiency of evidence of knowing possession and prohibited status, (2) admission of the Facebook photo, and (3) the § 2K2.1(b)(6)(B) enhancement. The Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Two Hearts) | Held |
|---|---|---|---|
| Whether evidence proved Two Hearts knowingly possessed the firearm | Video and investigator observations show Two Hearts carried the bags; he admitted the bags were his; gun was in one bag — supports constructive possession | Insufficient proof he knew of the gun in the bag | Affirmed — constructive possession supported by control of bags and admission |
| Whether evidence proved unlawful-user status under § 922(g)(3) | Methamphetamine (0.26 g) from his pocket plus paraphernalia in backpack supports inference he was an unlawful user when possessing the gun | Lab receipt discrepancy (one bag reported by jailer vs. three baggies at lab) undermines connection | Affirmed — reasonable jury could conclude bags were rolled triplets and infer unlawful-user status |
| Whether evidence proved knowledge of felon status as required by Rehaif | Stipulation established felony status; jurors can infer a person knows of a felony conviction | Argued insufficient evidence that he knew he was a felon (Rehaif knowledge element) | Plain-error review: affirmed — stipulation plus common-sense inference sufficed; no shocking tenuousness |
| Admissibility of Facebook photo showing Two Hearts with a gun | Photo (dated weeks earlier) is relevant to show familiarity/possession of similar firearm and identity; supported by expert testimony of consistency | Photo risked unfair prejudice/misleading jury because witnesses couldn’t say gun was real or the same gun | Affirmed — relevance outweighed risk; lack of definitive match was for jury to weigh |
| Procedural correctness of § 2K2.1(b)(6)(B) +4 enhancement (gun in connection with felony drug offense) | Gun and methamphetamine were possessed together in public, creating risk and facilitating drug offense; enhancement appropriate | District court failed to make an explicit facilitation finding; error in applying enhancement | Affirmed — no clear error; court’s comments ("very dangerous situation") and record show court properly applied the "in connection with" standard |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (government must prove defendant knew his prohibited status)
- United States v. Owens, 966 F.3d 700 (8th Cir. 2020) (jury may infer awareness of felony conviction from common sense; reviewing sufficiency of knowledge)
- United States v. Green, 835 F.3d 844 (8th Cir. 2016) (constructive possession standard)
- United States v. Mack, 343 F.3d 929 (8th Cir. 2003) (status-as-user need not be simultaneous; status during possession suffices)
- United States v. Johnson, 572 F.3d 449 (8th Cir. 2009) (inference of drug-user status from possession of user-quantity)
- United States v. Sneed, 742 F.3d 341 (8th Cir. 2014) (review and standards for § 2K2.1(b)(6)(B) enhancements)
- United States v. Regans, 125 F.3d 685 (8th Cir. 1997) (guns increase risk and can facilitate drug offenses)
- United States v. Payne-Owens, 845 F.3d 868 (8th Cir. 2017) (photograph of weapon may be probative despite possibility it is not real)
- United States v. Rembert, 851 F.3d 836 (8th Cir. 2017) (evidence of prior possession of similar firearm is relevant)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for unpreserved claims)