United States Court of Appeals
For the Eighth Circuit
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No. 16-1292
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kendan LaJordan Fonville, also known as Fudd
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 9, 2017
Filed: April 17, 2017
[Unpublished]
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Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Kendan Fonville pleaded guilty to one count of possession of a firearm by an
unlawful drug user or addict, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2),
and one count of possession of a firearm with an obliterated serial number, in
violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). The district court1 sentenced
Fonville to the statutory maximum of 180 months in prison. Fonville appeals,
arguing that the district court committed procedural error in calculating his guidelines
range. He also argues that his sentence is substantively unreasonable. We affirm.
As Fonville acknowledges, most of his arguments on appeal rest on the district
court’s factual findings. See United States v. Beckman, 787 F.3d 466, 494 (8th Cir.
2015) (clear error review for factual findings at sentencing). Specifically, Fonville
argues the government failed to prove that he possessed an AK-47 semiautomatic
firearm. At the sentencing hearing, however, two witnesses testified that they
observed Fonville firing the AK-47 into the air at a party. Another witness testified
that Fonville and another individual were holding the AK-47 together when the
rounds were fired. And, although two other witnesses testified that they did not see
Fonville fire an AK-47, the district court reasonably dismissed their testimony as
incredible. We therefore cannot say the district court clearly erred in finding that
Fonville was at least one of the individuals who possessed and fired the AK-47. See
United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014) (“The government can
prove knowing possession by showing actual or constructive possession, and
possession can be sole or joint.”); United States v. Brooks, 715 F.3d 1069, 1082 (8th
Cir. 2013) (upholding conviction under § 922(g) where evidence included “photos
and video of a person resembling [the defendant] holding a firearm”). Nor can we
say, given the above evidence, that the district court clearly erred in finding that
Fonville frivolously contested whether he possessed the AK-47 and, thus, acted
inconsistently with acceptance of responsibility. See United States v. Petruk, 836
F.3d 974, 978 (8th Cir. 2016) (“A district court’s factual determination about whether
the defendant accepted responsibility is entitled to great deference, and we will
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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reverse it only if it is so clearly erroneous as to be without foundation.” (citation
omitted)).
Given these findings of fact, the district court did not err in applying the
guidelines provisions relevant to Fonville’s total offense level. See Beckman, 787
F.3d at 494 (de novo review for construction and application of the guidelines).
Fonville does not contest that the AK-47 was capable of accepting a large capacity
magazine or that he was a prohibited person at the time of the offense; thus, the
district court did not err in calculating a base offense level of 20. See U.S.S.G.
§ 2K2.1(a)(4)(B). Fonville also does not contest that he possessed at least two other
weapons, a MAC-10 pistol and a Bersa .380 pistol; accordingly, the district court did
not err in applying a two-level enhancement for possessing three or more firearms.
See id. § 2K2.1(b)(1)(A). And, given the district court’s finding that Fonville
frivolously contested possession of the AK-47, the district court did not err in
denying Fonville an acceptance-of-responsibility reduction. See id. § 3E1.1 cmt.
n.1(A). We therefore conclude, after taking into account other enhancements
undisputed on appeal, that the district court did not err in calculating a total offense
level of 30.
Fonville next argues that the district court abused its discretion by departing
upward on Fonville’s criminal history category. See United States v. Outlaw, 720
F.3d 990, 992 (8th Cir. 2013) (abuse-of-discretion review for upward departures).
The district court initially calculated a criminal history category of IV, but the
government moved for an upward departure under U.S.S.G. § 4A1.3. The district
court granted the departure and found a criminal history category of V, noting that a
“considerable number” of Fonville’s prior violations did not receive criminal history
points. Those prior violations, the district court noted, were escalating in nature from
“beating on women, threatening women, to firearm offenses, and . . . shooting off a
firearm in the city limits of Cedar Rapids. He is a recidivist.” After reviewing the
record, we conclude the district court did not abuse its discretion by departing
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upward. See Outlaw, 720 F.3d at 992–93 (upholding upward departure where
criminal history category was under-representative of the defendant’s history of
violent conduct); United States v. Miller, 484 F.3d 968, 971 (8th Cir. 2007) (“An
upward departure pursuant to § 4A1.3 may be particularly appropriate in the context
of ‘defendants in their early twenties or younger’ who repeatedly have received
lenient sentences, yet who may pose a significant risk of serious recidivism.” (quoting
U.S.S.G. § 4A1.3 cmt. background)). Thus, with Fonville’s total offense level of 30,
criminal history category of V, and statutory maximum sentence of 180 months
between both counts, the district court properly calculated the applicable guidelines
range as 151 to 180 months.
Finally, Fonville argues that his 180-month sentence is substantively
unreasonable. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(abuse-of-discretion review for substantive reasonableness). However, finding no
abuse of discretion in the district court’s consideration of the § 3553(a) factors, we
affirm.
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