United States v. Nilsen
| Decision Date | 19 November 2021 |
| Docket Number | No. 20-2688,20-2688 |
| Citation | 18 F.4th 587 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Jamie Nicol NILSEN, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
David D. Hagler, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Bismarck, ND, for Plaintiff-Appellee.
Christopher P. Bellmore, Assistant Federal Public Defender, Federal Public Defender's Office, Fargo, ND, for Defendant-Appellant.
Jamie Nicol Nilsen, U.S. Penitentiary Florence High, Florence, CO, Pro Se.
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
Jamie Nicol Nilsen pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 applied a four-level enhancement for possessing a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B). It sentenced him to 63 months in prison and three years of supervised release. He appeals the four-level enhancement. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
In August 2019, Bismarck Police Officer Damian Girodat saw a jail video call showing Nilsen, a convicted felon, with a handgun. On August 6, Nilsen was driving near the Bismarck Police Department headquarters. Officer Girodat observed him failing to use a proper turn signal when parking. Knowing Nilsen recently possessed a gun, Officer Girodat initiated a "modified felony stop" for safety. As Nilsen exited his car, Officer Girodat noticed a bulge, which he suspected was a gun, near Nilsen's waistband. Officer Girodat commanded him to put his hands in the air, walk backwards toward the police car, and get on his knees. Nilsen complied. Meanwhile, Bismarck Police Officer Michael Miller arrived. At one point, Nilsen lowered his arm to his waistband but then returned his empty hand to the raised position.
Officer Girodat handcuffed Nilsen but informed him that he was not under arrest. He stood Nilsen up, again looking at his waistband. He saw nothing. He asked if Nilsen had a gun. He said he did not. In response, Office Miller called Nilsen a "fucking bitch." Nilsen lunged at Officer Miller. There was a short struggle. Officer Girodat again asked Nilsen if he had a gun. Nilsen responded, "stop talking shit." Officer Miller told Officer Girodat to put Nilsen on the ground. There was another struggle. Officer Girodat again asked Nilsen if he had a gun. Nilsen became angry. There was yet another struggle. The gun fell from Nilsen's pants to the ground.
Another officer arrived and retrieved the gun. Nilsen continued to resist arrest. It took three officers to control him. The officers took Nilsen into custody. At some point, Nilsen suggested he wished he had used the gun because there was "no difference between a murder and a 25."
Nilsen argues the district court erred in applying the enhancement under U.S.S.G. § 2K2.1(b)(6)(B). This court reviews factual findings supporting an enhancement for clear error, and legal conclusions about the guidelines de novo. United States v. Gibson , 840 F.3d 512, 514 (8th Cir. 2016). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Schaub v. VonWald , 638 F.3d 905, 923 (8th Cir. 2011) (internal quotation marks omitted).
A four-level enhancement to the base offense level is warranted if a defendant "used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6) . "In connection with means that, at a minimum, the firearm had a purpose or effect with respect to the other felony offense because its presence facilitated or had the potential to facilitate the offense, as opposed to being the result of mere accident or coincidence." United States v. Smith , 535 F.3d 883, 885 (8th Cir. 2008) (internal quotation marks omitted), citing U.S.S.G. § 2K2.1(b)(6) cmt. n.14(A) .
The district court found that the government established by a preponderance of the evidence that Nilsen possessed a firearm in connection with the North Dakota felony offense of preventing arrest. See N.D.C.C. § 12.1-08-02(1) . Nilsen believes this finding was erroneous. First, he argues the district court erred in determining he possessed the gun in connection with another felony offense. Second, he asserts the gun did not have the potential to facilitate the felony because he was handcuffed with no access when arrested.
A person is guilty of the felony offense of preventing arrest under § 12.1-08-02(1) if "with intent to prevent a public servant from effecting an arrest of himself or another" for a felony offense, "he creates a substantial risk of bodily injury to the public servant." N.D.C.C. § 12.1-08-02(1) .
Nilsen argues he did not possess the gun in connection with the felony-offense of preventing arrest because, to the extent he committed felony-level preventing arrest, he did so only "after he no longer possessed the gun." The felony at issue is North Dakota's felon-in-possession of a firearm statute. N.D.C.C. § 62.1-02-01 . Nilsen asserts the officers lacked probable cause to arrest him as a felon-in-possession until after they found the gun on the ground. He reasons that he did not possess the gun in connection with the felony-offense of preventing arrest because the gun was on the ground when the arrest began.
Nilsen's argument is undermined by the plain language of the statute. As the district court noted, the "plain and unambiguous language" of the statute does not require, as Nilsen suggests, that the officers "be in the process of or attempting to arrest" the defendant. Rather, it requires only an intent to prevent an arrest. Before an arrest, a defendant can develop the intent to prevent an arrest. See United States v. Williams , 278 Fed. Appx. 279, 280 (4th Cir. 2008) (). The key then is when Nilsen developed the intent to prevent the officers from effecting his arrest. If, at some point during the stop while Nilsen possessed the gun, he had the intent to prevent his arrest, the district court did not clearly err in finding he met the elements of the statute.
The district court concluded that Nilsen's intent to prevent an arrest began before he lost control of the firearm:
Even assuming the Defendant was not technically under arrest at the time he began to struggle with the Officers after being asked the third time about the firearm, the preponderance of the evidence shows he intended to prevent the Officers from arresting him for illegally possessing the firearm. The Defendant had a gun on his person from the moment Officer Girodat began the traffic stop. It is clear from the video there is a bulge directly where Officer Girodat testified he saw a bulge. Once he backed up with his hands in the air, at one point he lowers one hand to the area Officer Girodat saw the firearm, presumably to push it further down his pants. After Officer Girodat asked the Defendant a third time about the firearm (this time if the firearm was in his waistband), it became immediately clear the Defendant's resistance switched from being angry with Officer Miller's inappropriate comment to trying to prevent them from discovering the firearm and therefore arrest him for being a felon in possession of a firearm. The Defendant's anger and frustration turned to rage and the struggle with the officers intensified. Furthermore, the Defendant knew he was prohibited from possessing a firearm as evidenced by the fact that he was aware to some degree of punishment related to being a felon in possession of a firearm, even if erroneous. From this, the Court concludes it was the Defendant's intent to prevent the Officers from arresting him for being a felon in possession of a firearm, a Class C Felony, in violation of N.D.C.C. § 62.1-02-01(1).
Nilsen argues, based on State v. DuPaul , 509 N.W.2d 266 (N.D. 1993), that he "merely prevented" officers "from discharging an official duty—the investigatory stop," which is a misdemeanor, not a felony. But DuPaul is inapplicable. There, the court addressed only the misdemeanor provision of N.D.C.C. § 12.1-08-02(1), not the felony provision. See DuPaul , 509 N.W.2d at 269 (). In the misdemeanor provision, it noted a distinction between: (1) intent to prevent arrest and (2) intent to prevent the discharge of an official duty. Id . It then discussed the latter provision, noting that intent to prevent the discharge of an official duty did not require the defendant be "under arrest." Id . Neither the issue of what constitutes "an arrest" under the misdemeanor provision nor the issue of what constitutes "an arrest" under the felony provision was before the...
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