United States v. Robert Shelton, No. 22-3425 (8th Cir. 2023)

Annotate this Case

Defendant was stopped by police, at which point they found narcotics and a BB gun. Defendant later pleaded guilty to possession of a controlled substance with intent to distribute, At sentencing, the district court applied a two-level enhancement under USSG 2D1.1(b)(1) based on Defendant's possession of a BB gun. Defendant appealed.

On appeal, the Eighth Circuit held that the district court did not err in applying a two-level enhancement for possession of a BB gun because the gun qualifies as a dangerous weapon as it is capable of causing serious bodily injury. The question is not whether the BB gun closely resembled an instrument that was capable of inflicting death or serious bodily injury, because the BB gun is actually capable of inflicting death or serious bodily injury.

Court Description: [Arnold, Author, with Smith, Chief Judge, and Erickson, Circuit Judges] Criminal case - Sentencing. The district court did not err in applying a two-level enhancement to defendant's offense level under Guidelines Sec. 2D1.1(b)(1) for possession of a BB gun, as the gun qualifies as a dangerous weapon because it can inflict serious bodily injury.

Download PDF

United States Court of Appeals For the Eighth Circuit ___________________________ No. 22-3425 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Robert Charles Shelton lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids ____________ Submitted: September 19, 2023 Filed: October 6, 2023 ____________ Before SMITH, Chief Judge, ARNOLD and ERICKSON, Circuit Judges. ____________ ARNOLD, Circuit Judge. Police officers searched a bag belonging to Robert Shelton and found methamphetamine, drug paraphernalia, and a BB gun that resembled a handgun. As a result, Shelton pleaded guilty to possessing a controlled substance with intent to distribute it. See 21 U.S.C. § 841(a)(1), (b)(1)(A). In calculating the recommended sentencing range under the Sentencing Guidelines, the district court1 applied a twolevel enhancement to Shelton's base offense level because he possessed a "dangerous weapon," namely, the BB gun. Shelton maintains that the court erred in applying the enhancement. We affirm. The relevant enhancement applies "[i]f a dangerous weapon (including a firearm) was possessed." See USSG § 2D1.1(b)(1). Application Note 11(A) to that section provides that the definitions of "dangerous weapon" and "firearm" are found in the commentary to USSG § 1B1.1. Application Note 1(E) to § 1B1.1 defines a "dangerous weapon" to include "an instrument capable of inflicting death or serious bodily injury" or "an object that is not an instrument capable of inflicting death or serious bodily injury but . . . closely resembles such an instrument." Application Note 1(M) explains that "serious bodily injury" is "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation." Finally, the definition of "firearm" contained in Application Note 1(H) explicitly states that BB guns are "a dangerous weapon but not a firearm." The district court determined that the BB gun was a dangerous weapon both because it was capable of inflicting serious bodily injury and because it closely resembled a real firearm. It then sentenced Shelton to 235 months' imprisonment, which was at the bottom of the recommended range of 235–293 months. Shelton maintains that the district court erred in applying the enhancement. He asserts that a BB gun is not capable of inflicting death or serious bodily injury. He also asserts that, even if the BB gun closely resembles an actual firearm, the court should disregard that part of the definition of "dangerous weapon" because, as 1 The Honorable C.J. Williams, United States District Judge for the Northern District of Iowa. -2- commentary, it improperly expands, rather than interprets, what he believes is an unambiguous phrase in the Guidelines's text. We need not resolve the extent to which the "closely resembles" part of the definition applies because we think that the part of the definition that Shelton takes no issue with—whether the instrument is capable of inflicting death or serious bodily injury—sweeps in BB guns. As the district court explained, it might be difficult to imagine a BB gun causing death, but it can certainly cause serious bodily injury. The BB gun here contains a written warning of the danger of serious injury. BB guns can cause "protracted impairment of a function of a bodily member" such as by blinding, see Volk v. Ace Am. Ins. Co., 748 F.3d 827, 828 (8th Cir. 2014), and a victim shot with a BB gun might require medical intervention such as surgery or hospitalization. We find it unsurprising that the Guidelines commentary explicitly classifies BB guns as dangerous weapons because that result follows from the unchallenged part of the commentary's definition of "dangerous weapon." We discern no error here. Affirmed. ______________________________ -3-

Primary Holding

The Eighth Circuit affirmed Defendant's sentence for possession of a controlled substance with intent to distribute, finding that the court did not err in applying a two-level enhancement for Defendant's possession of a BB gun.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.