author: RIPPLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Allan HANCOCK, Defendant-Appellant.
    No. 15-1956
    United States Court of Appeals, Seventh Circuit.
    Argued November 13, 2015
    Decided December 28, 2016

      Kevin- F. Burke, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Peter A. Bartelt, Attorney, Stoughton, WI, for Defendant-Appellant.
    Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   RIPPLE, Circuit Judge.

Michael Allan Hancock was indicted on one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and on one count of possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Before trial, Mr. Hancock challenged the search warrant that had led to his arrest by requesting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In support of that motion, he maintained that critical evidence bearing on a confidential informant’s credibility had been omitted from the probable cause affidavit. Following the magistrate judge’s recommendation, the district court denied the motion.

Mr. Hancock also moved in limine to preclude the use of prior convictions as the basis for the § 922(g)(1) count. He maintained that the release document issued to him by the Colorado Department of Corrections lulled him into believing that all of his rights, including the right to possess a weapon, had been restored. The district court, assessing the release document within its four corners, held that the document did not communicate any restoration of rights to Mr. Hancock. A jury later convicted Mr. Hancock on both counts of the indictment. The court imposed concurrent sentences of 120 months on each count.

Mr. Hancock now challenges both of these rulings. We conclude that, viewed in its totality, the probable cause affidavit amply supports the issued search warrant. We also agree with the district court that, on its face, the release document does not speak to the restoration of rights. We therefore affirm Mr. Hancock’s convictions.

I

BACKGROUND

A.

On August 14, 2013, law enforcement officers executed a no-knock search warrant on the pi-operty of Arthur Erickson. This property included a residence, out buildings, and surrounding land. Mr. Hancock served as a caretaker of this property during the winter months. When Erickson was away, he lived in the residence; when Erickson was at home, Mr. Hancock stayed in a recreational vehicle parked on the property.

The search warrant, issued earlier the same day, was supported by the probable cause affidavit of Chris Drost, an investigator with the St. Croix Sheriffs Office with fifteen years’ experience. In that affidavit, Investigator Drost recounted that he had interviewed Mr. Hancock (also known as “Munchy”) in June 2013, while Mr. Hancock was detained at the St. Croix County Jail. During that interview, Mr. Hancock referred to himself as a “one percenter,” which Investigator Drost understood to mean that Mr. Hancock was affiliated with the “Outlaw Motorcycle Gang.” Mr. Hancock further informed Investigator Drost that he previously had been charged with a variety of crimes. Mr. Hancock also acknowledged that, on the day he had been brought to jail, he was with his girlfriend, who was identified (using police records) as Sarah Jo Davis.

The affidavit also contained information provided to Investigator Drost by a confidential informant, Jeremy Ray Peabody. In June 2013, Peabody began giving information about drug activity and stolen goods on the Erickson property to Investigator Drost. Peabody previously had provided information to the St. Croix County Sheriffs Office for fifteen years, and this information had led to several felony arrests and convictions. He reported to Investigator Drost that, approximately ten months earlier, Robert Graves had introduced Mr. Hancock to him and that Graves had identified Mr. Hancock as his supplier. Peabody continued that, at their first meeting, he had used methamphetamine with Mr. Hancock'and hád befriended him in the hope that he would be able to purchase drugs directly from Mr. Hancock and cut out the middleman. After two buys with Graves, Peabody was able to purchase drugs directly from Mr. Hancock.

Peabody subsequently made more than twenty visits to the Erickson property to purchase methamphetamine from' Mr. Hancock. He was, consequently, able to provide detailed information about Mr. Hancock, his business, and the property. Peabody explained that Mr. Hancock and Davis lived in an RV on the property and that Mr. Hancock had access to all of the buildings on the property, including a “large pole shed” from which he sold drugs. Peabody further reported that he had witnessed approximately forty to sixty drug sales to other individuals on the property, that Mr. Hancock had accepted stolen property as well as cash from his customers, and that Mr. Hancock had informed him that the property was stolen. Peabody had seen the stolen items (including a car, ATVs, and chainsaws) on the Erickson property. He also warned Investigator Drost that he considered Mr. Hancock to be dangerous, in part because of Mr. Hancock’s affiliation with the Outlaw Motorcycle Gang. Peabody “advised ... that within the last several, months he ha[d] seen a handgun in Munchy’s living quarters located in the' RV” and that Mr. Hancock had access to the handguns inside the Erickson residence. Peabody had seen Mr. Hancock use the weapons to “shoot[] at lights and shadows on the property.”

Peabody also provided Investigator Drost with cell phone numbers for Mr. Hancock and Davis. He said that Mr. Hancock used Davis’s cell phone to conduct his drug activities. Based on this information, Investigator Drost had secured a search warrant for Davis’s cell phone number on July 15, 2015. The search revealed numerous text messages with references to drug transactions during the week prior to the application for the warrant to search the Erickson property.

The probable cause affidavit also included information provided by Rachelle Low-rie. Lowrie had met Mr. Hancock in June 2013 through Davis. Lowrie asked Davis how she could purchase methamphetamine from Mr. Hancock and was told that shé “could go through Davis to purchase ... from Munch[y].” Lowrie. further explained that, on August 6, 2013, “she had been driven to [a] court appearance by Detective Funk of the Prescott Police Department” and that Mr. Hancock may have seen her. Mr. Hancock later accused her “of being a snitch and informant for the police.”

On August 11, 2013, Mr. Hancock and another man, identified as “Shawn,” came to Lowrie’s residence. Mr. Hancock tied Lowrie to the sofa, sexually assaulted her, and “extinguished lit cigarettes” on her. Mr. Hancock warned her against “snitch[ing]” and threatened her and her daughter with further harm if she reported him to the police. Lowrie believed that Mr. Hancock took from Lowrie prescription medications, jewelry, her wallet, and other items, including pictures of her daughter.

Finally, the probable cause affidavit recounted that, after transporting Lowrie to the hospital, Investigator Drost spoke with the nurse who conducted Lowrie’s physical examination. The nurse confirmed that Lowrie’s injuries were consistent with what Lowrie had reported to Investigator Drost.

On the basis of this affidavit,- a search warrant for the Erickson property was issued. Upon execution of the search warrant, the officers found a short barreled shotgun, shotgun shells, some allegedly stolen property, a small amount of methamphetamine, and some drug paraphernalia.

B.

1.

On October 10, 2013, a grand jury returned a two-count indictment charging Mr. Hancock with possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and with possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a)(2), and 5861(d). Mr. Hancock moved to suppress the evidence obtained during the execution of the search warrant and requested an eviden-tiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), alleging that the affidavit lacked probable cause, contained material false statements concerning the alleged sexual assault, and omitted material .information, namely evidence of Peabody’s criminal'record and the fact that he was in custody for assaulting a police officer at the time he provided the relevant information. The Government opposed the motion to suppress and the request for a Franks hearing.

The magistrate judge recommended that the district court deny the motion to suppress and deny the request for a Franks hearing.. In the report and recommendation, the magistrate judge identified four categories of evidence in the affidavit that supported the search warrant: (1) Investigator Drost’s interview of Mr. Hancock; (2) Peabody’s information to the police; (3) Davis’s text messages related to drug dealing; and (4) the interview and medical examination of Lowrie. The magistrate judge concluded that Investigator Drost had been reckless in- omitting Peabody’s criminal convictions from the affidavit. He concluded nevertheless that, even if the evidence of Peabody’s criminal history had been included in the probable cause affidavit, the warrant would have issued. Specifically, the magistrate judge noted that Peabody’s account had been detailed and corroborated by other evidence. Moreover, probable cause to search the premises would have existed based on the information provided by Lowrie:

Lowrie’s account, as corroborated in part by the [Sexual Assault Response Team] nurse’s report to Investigator Drost ... provides a separate and sev-erable basis to search the premises for the articles that Lowrie claims Hancock took from her. Lowrie provided a vivid and detailed account of what happened along with a lengthy and detailed list of what Hancock stole from her and took with him. This court has no reason to doubt this account and it could stand alone as a basis to uphold this search warrant.

The magistrate judge therefore recommended denying the request for a Franks hearing and the motion to suppress.

Mr. Hancock objected to the report and recommendation. In his view, the finding of a reckless omission of Peabody’s criminal convictions mandated a Franks hearing. Notably, Mr. Hancock did not address the magistrate judge’s finding that the interview and medical examination of Lowrie provided an independent basis for the search. The district court accordingly held that Mr. Hancock had waived any objection to the finding of the discrete sufficiency of the rape allegations and otherwise adopted the magistrate judge’s report and recommendation.

2.

Prior to trial, Mr. Hancock filed a motion in limine to preclude the Government from introducing evidence of his Colorado felony convictions as the factual predicates for the § 922(g)(1) charge. Mr. Hancock argued that, by operation of state law, all of his rights to citizenship had been restored upon his release from prison. Moreover, the Colorado Department of Corrections had provided him with an “unconditional” discharge upon his release. According to Mr. Hancock, because he had been unconditionally discharged, his convictions could not be used as predicate offenses under § 922(g)(1).

The district court denied the motion. It further held that nothing in the document issued by the Colorado Department of Corrections told defendant that any or all of his civil rights had been restored. “Therefore, he was not misled into thinking he could possess a firearm.”

A jury convicted Mr. Hancock on both counts of the indictment, and the court imposed concurrent sentences of 120 months. Mr. Hancock timely appealed.

II

DISCUSSION

A.

Mr. Hancock maintains that the district court erred in denying his motion to suppress and his motion for a Franks hearing. In reviewing a motion to suppress, “we review legal conclusions de novo and factual findings for clear error. Similarly, we review the denial of a Franks hearing for clear error, but any legal determinations that factored into the ruling are reviewed de novo.” United States v. Glover, 755 F.3d 811, 815 (7th Cir. 2014) (citation omitted).

We recently have reiterated the standard for granting a Franks hearing in United States v. Mullins, 803 F.3d 858 (7th Cir. 2015). We explained that

[a] defendant is entitled to a Franks hearing—an evidentiary hearing regarding the veracity of information included in a search warrant application—if he can make a substantial preliminary showing that: (1) the warrant affidavit contained false statements, (2) these false statements were made intentionally or with reckless disregard' for the truth, and (3) the false statements were material to the finding of probable cause.

Id. at 861-62. This rule applies to omissions as well as affirmative misrepresentations. Id. at 862. However, “[i]f sufficient allegations existed warranting the search irrespective of the affiant’s alleged errors, a hearing is unnecessary and the motion should be denied.” Id. We assess the sufficiency of the allegations supporting the warrant according to the “totality of the circumstances.” Id. at 861. Specifically,

[w]hen probable cause is supported by information supplied by an informant, we particularly look to several factors: (1) the degree to which the informant has acquired knowledge of the events through firsthand observation, (2) the amount of detail provided, (3) the extent to which the police have corroborated the- informant’s statements, and (4) the interval between-the date of the events and the police officer’s application for the search warrant.

Id. at 863 (quoting United States v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014)).

Here, the magistrate judge looked to these standards in evaluating whether a Franks hearing was warranted. He concluded that Investigator Drost’s omission of Peabody’s criminal record from the probable cause affidavit was reckless. He therefore “consider[ed] the affidavit, ... incorporating omitted material facts, and determined] whether probable cause existed.” United States v. Harris, 464 F.3d 733, 738 (7th Cir. 2006); see also United States v. Robinson, 546 F.3d 884, 888 (7th Cir. 2008) (same). The magistrate judge reviewed the information provided by Peabody and concluded that it corroborated Mr. Hancock’s statements to Investigator Drost, the text messages, and Lowrie’s statement. The magistrate judge also believed that, “[i]n light of Peabody’s long-term, intertwined history as both a criminal and a snitch, a court considering the reliability of his information would have to be skeptical but receptive: notwithstanding his personal criminality, Peabody was a long-term, reliable informant.” “In this particular case,” the magistrate judge continued, “Peabody’s lengthy, richly detailed, first-hand report of what Hancock and Davis were doing at the premises—involving precisely-described stolen property, ongoing drug runs to Hastings, followed by sales and consumption on the premises, [and] meth-fueled gunplay ... strikes this court as worthy of credence.” We perceive no legal error in the magistrate judge’s recitation of the applicable standards and no factual error in his thorough consideration of the evidence on which the probable cause affidavit was based.

Mr. Hancock does not point to any specific flaw in the magistrate judge’s analysis, which was adopted by the district court as its own. Instead, he claims that our decision in Glover mandates a Franks hearing every time “substantial adverse information about the informant’s credibility” is omitted from a probable cause affidavit. Glover, 755 F.3d at 820. This is a misreading of our holding in Glover.

In Glover, a search warrant had been issued on the basis of an officer’s affidavit, Which contained the following facts:

On July 23, 2010, confidential informant “Doe” spoke with Officer Brown regarding a felon, known to Doe as “T.Y.,” in possession of two handguns: a black semiautomatic and a black .38-caliber revolver. T.Y. lived at 905 Kedvale in Chicago. Doe said he had seen the guns while in the house the day-before and “many times over the course 'of the last six weeks.” Doe said T.Y. needed the guns because he had a “dope spot” (a street-level point of sale) for heroin. Doe also said T.Y. was a member of the Traveler Vice Lords gang and part of a “stick-up crew” who robbed people carrying large amounts of money or drugs.

Id. at 814-15. The affidavit, however, “did not include any available information on Doe’s credibility,” including that he was affiliated with a gang, -that he had a lengthy criminal- history (including four crimes committed while he was working as an informant), that he “had used aliases when questioned by police officers,” and that he had “received payment for providing information to the police in the past.” Id. at 815.

Applying the totality .of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527- (1983), we held that a Franks hearing was warranted. Looking at the factors that inform a Franks-h.os.rmg determination, see Mullins, 803 F.3d at 863, we noted that the “tip was minimally corroborated,” and the informant had “provided little detail.” Glover, 755 F.3d at 817. Moreover, the “checkered past” of the informant called into question the reliability of the information, namely Doe may have “report[ed] Glover merely because of gang rivalries.” Id. Under these circumstances, “[t]he complete omission of information regarding Doe’s credibility [was] insurmountable.” Id. at 816.

Unlike the information in Glover, however, here the probable cause affidavit contained specific information concerning Peabody and his reliability as a witness. As well, the information provided by Peabody differed in quantity and quality from that provided in Glover: Peabody gave highly detailed descriptions of Mr. Hancock’s activities based on Peabody’s frequent, personal interactions with Mr. Hancock. Furthermore, Mr. Hancock’s criminal activities were corroborated by the text messages from Davis’s phone, Lowrie’s report of assault to the police, and Mr. Hancock’s own prior statements to Investigator Drost, in which he referenced his gang affiliation and admitted to a long line of arrests. We therefore conclude, as we did in Mullins, that this other evidence of reliability distinguishes the present situation from Glover. See Mullins, 803 F.3d at 864 (holding that Glover was “readily distinguishable” because “the search warrant in Glover was issued based almost entirely on the informant’s report,” but “[h]ere, by contrast, ... the critical information was corroborated by the officers’ firsthand observations”).

We also note that, in the case before us, there are not the same type of concerns with Peabody’s credibility as there were with the informant in Glover. Specifically, there is no evidence that Peabody was involved in a different—and perhaps rival—gang, that he had attempted to de-ceivé the police, or that he was expecting remuneration for his cooperation.

Here, the magistrate judge comprehensively reviewed the totality of the circumstances and concluded that a Franks hearing was not warranted. We therefore affirm the district court’s denial of Mr. Hancock’s request for a Franks hearing.

B.

Mr. Hancock renews his claim that his, Colorado convictions cannot be considered predicate offenses for purposes of § 922(g)(1) because he received an “unconditional” discharge for those convictions. Section 922(g) of Title 18 of the United States Code provides that “[i]t shall be unlawful for any person—(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[,] ... to ... possess in or affecting commerce, any firearm or ammunition. ...” Excluded from the definition of “crime punishable by imprisonment for a term exceeding one year,” however, is “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms:” 18 U.S.C. § 921(a)(20).

We have described this second provision as “an anti-mousetrapping rule, designed to ensure that persons who have been told that all civil rights have been restored are not taken by surprise when the statute books contain reservations (such as a ban on possessing firearms) omitted from the communication.” United States v. Burnett, 641 F.3d 894, 895 (7th Cir. 2011).

Consequently, if a state advises a convicted felon that his “‘big three’ civil rights” have been restored—“the rights to vote, to hold office, and to serve on juries”—then it also must provide “express” notice that he may not possess firearms, Buchmeier v. United States, 581 F.3d 561, 564, 565 (7th Cir. 2009) (en banc). It is not sufficient notice that “the state’s statutes at large” contains such a prohibition. Id. at 565. Rather, “[t]he statute asks only what a document contains. If the document says that civil rights have been restored but omits a firearms qualification, then the conviction no longer counts as a violent felony.... Section 921(a)(20) directs us to thé four corners of the document, and there we stop.” Burnett, 641 F.3d at 896.

' Here the discharge document issued by the Colorado Department of Corrections is silent as to the restoration of any rights. The “Statutory Discharge” states: “The above named inmate is to be unconditionally discharged from the custody of the Department of Corrections pursuant to 18-1.3-401.” Because the document does not mention the restoration of rights, and because our analysis begins and ends with the four corners of the document, Mr. Hancock’s Colorado felonies are not excluded from consideration by § 921(a)(20).

Mr. Hancock maintains, however, that our analysis should not end there. He notes that the discharge document references section 18-1.3-401 of the Colorado Revised Statutes, which states in relevant part:

(3) Every person convicted of a felony, whether defined as such within or outside this code, shall be disqualified from holding any office of honor, trust, or profit under the laws of this state .or from practicing as an attorney in any of the courts of this state during the actual time of confinement or commitment to imprisonment or release from actual confinement on conditions of probation. Upon his or her discharge after completion of service of his or her sentence or after service under probation, the right to hold any office of honor, trust,- or profit shall be restored, except as provided in section 4 of article XII of the state constitution.

Colo. Rev. Stat. Ann. § 18-1.3-401 (West 2016). Mr. Hancock further contends that, because his prior convictions are not listed in Article XII, Section 4 of the Colorado Constitution, his right to hold office has been restored. Moreover, he continues, a different article of the Colorado Constitution automatically restores his right to vote after completion of his sentence. Finally, the Colorado Constitution specifically guarantees the right to bear arms to all persons: “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.” Colo. Const. art. II, § 13. Mr. Hancock therefore submits that, because the discharge references the statute, which in turn references the Colorado Constitution, he was sent on an “Easter egg hunt” for his rights, which eventually misled him to conclude that an unconditional right to possess firearms had been restored to him.

We cannot accept this argument. The requirement that a state provide “express” notice of a continuing firearm prohibition only applies “[w]hen the state gives the person a formal notice of the restoration of civil rights.” United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994). As we already have observed, the notice Mr. Hancock received does not speak to the restoration of rights. The notice, therefore, stands in contrast to the notice sent in Buchmeier that specifically informed the recipient of “restoration of your right to vote and to hold offices created under the constitution of the state óf Illinois.” 581 F.3d at 564.

The rule of Buchmeier is confined to situations in which the state provides a notice of the restoration of civil rights to a former inmate. Absent such a notice, the proviso to 18 U.S.C. § 921(a)(20) requiring that the “restoration ... expressly provide[ ] that the person may not ... possess ... firearms” simply does not apply. The district court, therefore, did not err in considering his Colorado convictions as predicate offenses for purposes of § 922(g)(1).

Conclusion

For the reasons set forth in this opinion, the judgment of the district court is affirmed.

AFFIRMED

      . The jurisdiction of the district court was premised on 18 U.S.C. § 3231.

      . R.17-1 (Application for Search Warrant) at 4.

      . Id. at 5.

      . Id. at 7.

      . Id.

        . Id. at 9.

      . Id.

      . Id.

      . Id.

      . Id.

      11. R.49 at 30-31.

      . R.62-1.

      . R.88at5.

      . See R.49 at 28.

      . Id. at 30.

        .Id.

      . See R.55 at 3-4.

      . See R.17-1 at 4-5 (identifying Peabody as "a known credible confidential informant,” who, "over the course of the last fifteen years, has provided the St. Croix County Sheriffs Office with information on several burglaries leading to felony arrests and convictions,” and who had "made a minimum of 3 controlled drug buys for the St. Croix County Sheriff's Office and the West Central Drug Task Force, leading to at least one felony arrest and conviction”).

      . Appellant’s Br. 10.

      . R.62-1,

      . See Colo. Const. art. XII, § 4 (“No person hereafter convicted of embezzlement of public moneys, bribery, perjury, solicitation of bribery, or subornation of perjury, shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state.”).

      . See Colo, Const. art. VII, § 10 ("No person while confined in any public prison shall be entitled to vote; but every such person.who was a qualified elector prior to such imprisonment, and who is released therefrom by virtue of a pardon, or by virtue of having served out his full term of imprisonment, shall without further action, be invested with all the rights of citizenship, except as otherwise provided in this constitution.”).

      .Appellant’s Br, 13.


source: Caselaw Access Project

author: SHEPHERD, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America Plaintiff-Appellee v. Trevon SYKES Defendant-Appellant
    No. 14-3139
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 25, 2015
    Filed: December 21, 2016

      Counsel who represented the appellant was Levell D. Littleton of Saint Louis, MO.
    Counsel who represented the appellee was Cristian Matthew Stevens, AUSA, of Saint Louis, MO., Allison Hart Behrens, AUSA, of Saint Louis, MO.
    Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Trevon Sykes pled guilty to being a felon in possession of numerous firearms in violation of 18 U.S.C. § 922(g)(1). Finding that Sykes had committed three predicate offenses qualifying as violent felonies under the .Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the district court sentenced Sykes to 180 months in prison and a three-year term of supervised release. Sykes appealed his sentence, raising issues related to the nature of his predicate offenses coupled with his age at the time of the commission of these offenses. We affirmed.

The United States Supreme Court granted Sykes’s petition for, writ of certio-rari, vacated the judgment, and remanded the case for further consideration in light of its decision in Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Court held “when a statute, instead of merely laying out a crime’s elements, lists alternative means of fulfilling one (or more)” elements, the sentencing court commits error by “applying the modified categorical approach to determine the means by which [the defendant] committed his prior crimes” in order to determine whether the ACCA enhancement applies. Id. at 2253. After following the Supreme Court’s directive, we again affirm Sykes’s sentence.

I.

On May 23, 2013, Sykes and Charles Sacus arrived- at a tattoo parlor in St. Louis, Missouri. Unbeknownst to Sykes and Sacus, the -proprietors of the tattoo parlor were undercover agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). As a cover, the agents posed as convicted felons who were buying guns for unlawful use by an outlaw motorcycle gang. While at the tattoo parlor, Sykes handed a Hi-Point .45 caliber semiautomatic pistol to Sacus, which Sacus sold to the undercover agents for $500. Sykes admitted to the undercover agents that he had recently been released from prison, the pistol belonged to him, and he had moré guns for sale.

Over the following weeks, Sykes sold five firearms, two of which were stolen, to the undercover agents. All of the transactions were recorded with audio and video. ATF experts examined the firearms and determined that they functioned as designed and were manufactured outside the state of Missouri.

A federal grand jury indicted Sykes for being a felon in possession of numerous firearms from May 23, 2013 to June 6, 2013, in violation of 18 U.S.C § 922(g)(1). Sykes entered a plea agreement and pled guilty. The United States Probation Office issued a presentence investigation report (“PSR”), which stated that Sykes had three prior convictions that were crimés bf violence and violent felonies. Specifically, certified court records established that Sykes previously was convicted of: (1) two counts of second-degree burglary by knowingly and unlawfully entering a building in St. Louis County in 2010; (2) second-degree burglary by knowingly and unlawfully entering a building and felony stealing in St. Louis County in 2010; (3) three counts of possession of a controlled substance in St. Louis County in 2010; and (4) first-degree burglary in St. Louis City in 2010. Each of these prior convictions is a felony punishable by a term of imprisonment exceeding one year. As a result of Sykes having three violent felony convictions and one serious drug offense, the PSR classified him as an Armed Career Criminal subject to a mandatory minimum sentence of 180 months pursuant to the ACCA.

Sykes objected to his classification as an Armed Career Criminal, asserting that because the second-degree burglaries were of unoccupied commercial buildings and were nonviolent, and in view of his youth at the . time of the commission of thé burglaries, the offenses should not count as predicate convictions under the ACCA. The district court rejected these arguments, noting that Sykes was certified as an adult for each of his prior convictions and the two offenses to which Sykes objected qualified as violent felonies under Eighth Circuit law.

II.

On appeal, Sykes first argues that his two prior convictions for second-degree burglary do not qualify as violent felonies for the purposes of § 924(e) because the Missouri second-degree burglary statute is overbroad and Sykes burgled unoccupied commercial buildings. Second, Sykes asserts that he incurred the prior convictions when he was under the age of 18, and therefore using them to enhance his sentence to a mandatary minimum of fifteen years constitutes cruel and unusual punishment under the Eighth Amendment. We address each argument in turn.

A;

First, Sykes contends that the district court erred in finding that his prior second-degree burglary convictions qualify as violent felonies for purposes of § 924(e) because the second-degree burglary statute is overbroad and Sykes burgled unoccupied commercial buildings. We review de novo whether a prior conviction constitutes a violent felony for the purposes of § 924(e). United States v. Boaz, 558 F.3d 800, 806 (8th Cir. 2009) (citing United States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008)).

To determine whether a past conviction qualifies as a violent felony, we apply the “categorical approach,” under which we “look only to the fact of conviction and the statutory definition of the 'prior offense.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If the statute of conviction lists elements in the alternative, the sentencing court may apply the “modified categorical approach,” under which “a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2249 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

Burglary is one of the enumerated offenses under § 924(e)(2)(B)(ii). An offense constitutes “burglary” under § 924(e) if it contains the elements of “generic burglary,” which is defined as “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Any enhanced sentence under § 924(e) for a prior burglary conviction must “rest on a showing that [the] prior conviction ‘necessarily’ involved ... facts equating to generic burglary.” Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Under Missouri law, a person commits second-degree burglary when “he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Mo. Ann. Stat. § 569.170. Sykes argues that the statute’s definition of an “inhabitable structure” is overbroad because it includes a “ship, trailer, sleeping car, airplane, or other vehicle or structure.” Id. § 569.010(2). However, the statute contains at least two alternative elements: burglary “of a building” and burglary of “an inhabitable structure,” separated in the text by the disjunctive “or.” See Mathis, 136 S.Ct. at 2248 (“ ‘Elements’ are the ‘constituent parts’ of a crime’s -legal definition—the things the prosecution must prove to sustain a conviction.”) (internal quotation marks omitted). Sykes has three Missouri state court convictions for second-degree burglary of a “building.” At Sykes’s sentencing, the government introduced state court records of these convictions which included the indictments, Id. at 2249 (courts employing the “modified categorical approach” may look to “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, - [Sykes] was convicted of.”). Sykes does not dispute the fact of these - convictions. Second-degree burglary of a building conforms to the elements of a generic burglary promulgated in Taylor: (i) unlawful entry or remaining in (ii) a building or structure (iii) with the intent to commit a crime. See Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Further, because burglary of “a building” describes an element of second-degree burglary rather than a means, our decision does not run afoul-of Mathis, 136 S.Ct. at 2253.

Sykes also argues that his prior second-degree burglary convictions are not violent felonies for purposes of the ACCA because they were of unoccupied commercial buildings and did not pose “a serious potential risk of physical injury to another.” Sykes draws on the language of the residual clause of § 924(e)(2)(B)(ii). In the time since Sykes first briefed his arguments, the Supreme Court has held that imposing an increased sentence under the residual clause of § 924(e) is unconstitutional. Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Nevertheless, the Court noted that its “decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.” Id. Therefore, because burglary is an enumerated offense under § 924(e)(2)(B)(ii), the imposition of an increased sentence need not rest on whether Sykes’s conduct poséd “a serious potential risk of physical injury to another.” Indeed, the Supreme Court has rejected the notion that “Congress meant to include as predicate offenses only a subclass of burglaries whose elements include ‘conduct that presents a serious risk of physical injury to another,’ over and above the risk inherent in ordinary burglaries.” Taylor, 495 U.S. at 597, 110 S.Ct. 2143. “[I]f this were Congress’ intent, there would have been no reason to add the word ‘burglary5 to § 924(e)(2)(B)(ii), since that provision already includes any crime that ‘involves conduct that presents a serious potential risk of physical injury to another.’ ” Id. The Court reasoned that Congress most likely thought that certain categories of property crimes typically present a risk of injury to persons and are “so often committed by career criminals” that they should be enumerated in the enhancement statute. Id.

Accordingly, we conclude that Sykes’s prior second-degree burglary convictions fit within the generic definition of “burglary” for purposes of the ACCA, and each constitutes a violent felony under § 924(e).

B.

Second, Sykes contends that the sentence enhancement constitutes cruel and unusual punishment under the Eighth Amendment because he was a juvenile when he incurred the prior convictions. We review constitutional challenges to a sentence de novo. United States v. Bowers, 638 F.3d 616, 620 (8th Cir. 2011).

Sykes cites the Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in support of his contention. We have rejected the argument that in light of Roper, “application of the ACCA enhancement to [a] sentence violates the Eighth Amendment because it results in a sentence increase based on crimes committed ... as a juvenile.” See United States v. Jones, 574 F.3d 546, 553 (8th Cir. 2009). “Roper does not deal specifically—or even tangentially— with sentence enhancement. It is one thing to prohibit capital punishment for those under the age of eighteen, but an entirely different thing to prohibit consideration, of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood.” Id. (internal quotation marks omitted). Likewise, Graham does not remotely concern sentence enhancement under the ACCA for crimes committed as a juvenile. Graham held that the Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 560 U.S. at 82, 130 S.Ct. 2011. Sykes is not facing a life sentence, but a fifteen-year sentence under § 924(e). Neither Roper nor Graham prohibits sentence enhancement based on convictions incurred as a juvenile.

Furthermore, we have held that “the Eighth Amendment does not prohibit using an adult conviction based on juvenile conduct to increase a sentence under the ACCA.” Jones, 574 F.3d at 553. Sykes was certified as an adult for each of his prior second-degree burglary convictions. Accordingly, Sykes’s sentence enhancement under § 924(e) for crimes he committed as a juvenile does not violate the Eighth Amendment, and the district court did not err in enhancing Sykes’s sentence.

III.

We hold that the district court properly classified each of Sykes’s Missouri second-degree burglary convictions as a violent felony for the purpose of enhancing his federal sentence pursuant to the ACCA. Accordingly, we affirm Sykes’s sentence.

      . The Honorable Audrey G. Fleissig, United States District Judge for the Eastern District of Missouri.


text:
    Kevin WARD, Plaintiff-Appellant v. Bradley SMITH; Dustin Merriett, Defendants-Appellees
    No. 15-2583
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: December 21, 2016

      James T. Wicks, Bryan Cave LLP, Kansas City, MO (Curtis, Shank, Stephanie Bradshaw, on the brief), for appellant..
    Nicholas J. Komoroski, Asst. Atty. Gen., Jefferson City, MO (Chris Koster, Atty. Gen., on the brief), for appellees.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   SHEPHERD, Circuit Judge.

Kevin Ward sued correctional officers Bradley Smith and Dustin Merriett under 42 U.S.C. § 1983, alleging the officers used excessive force when they administered pepper spray to gain Ward’s compliance with orders to submit to wrist restraints. After conducting a two-and-a-half day bench trial, the district court granted judgment in favor of the officers. Ward appeals the district court’s judgment, and we affirm.

I.

After receiving evidence in this case, the district court found the following. On October 26, 2009, Ward was an inmate of the Missouri Department of Corrections (MDOC) as a convicted person serving a sentence of imprisonment and was housed in the Administrative Segregation Unit (Ad Seg) at the South Central Correctional Center (SCCC), Officers Smith and Mer-riett worked at the SCCC as correctional officers. On that date at approximately 9:20 p.m., Officer Merriett ordered Ward to stop talking to another inmate who was housed in a different cell in Ad Seg. Ward refused the order. Officer Smith approached Ward’s cell and ordered Ward to submit to wrist restraints, which would require Ward to place his hands behind his back and through a food port for an officer to apply handcuffs, in order for correctional staff to search Ward’s cell. Ward refused the order to submit to wrist restraints.

Officer Smith contacted SCCC medical staff and confirmed that Ward had no medical condition that would prohibit the use of pepper spray to force Ward to comply with the order, and then Officer Smith received authorization from the shift supervisor to use force in the form of pepper spray. Officers Smith and Merriett and a third correctional officer approached Ward’s cell, ordered him to submit to restraints, and when he refused administered a three-to-five second burst of pepper spray through the food port in Ward’s cell. Approximately ten minutes later, Officer Smith again asked Ward to comply with the order to submit to wrist restraints, and this time Ward refused and placed his mattress in front of his food port. Officer Merriett moved the mattress aside using a barricade removal assistance device, and Officer Smith administered a second round of pepper spray into Ward’s cell. During this second incident, Ward received a small cut on his arm.

Shortly thereafter, Ward complied with the request to submit to the wrist restraints. He was restrained, removed from his cell, and placed in a strip-out cell in the Ad Seg unit. The strip-out cell is approximately the size of a telephone booth. The officers removed the wrist restraints, strip searched Ward, removed his clothing from his possession, and provided him a security smock, which is a thin, padded blanket that can be placed over the body to cover the front and back but is open on the sides. Ward tied the smock around his lower body. A jail nurse treated the cut on Ward’s arm by washing it with saline solution and placing a bandage over the cut. After officers had completed the search of Ward’s cell and removed all personal items as punishment for Ward’s failure to comply with an order, Officer Smith approached Ward in the strip-out cell and ordered him to again submit to wrist restraints so that he could be transported back to his cell. Ward responded by placing his hands over his face, and Officer Smith administered pepper spray directly toward Ward’s face through the grated walls of the strip-out cell. Ward began coughing and claimed that he had asthma. The nurse returned and confirmed through an oximeter that Ward’s oxygen levels were normal.

Officer Smith returned to the strip-out cell and ordered Ward to submit to the wrist restraints. Ward responded by covering his head and upper body with the security smock. Officer Smith placed the pepper spray canister at the food port of the strip-out cell and sprayed the pepper spray for a few seconds at a distance of less than three feet from Ward. Officer Smith claimed he was attempting to direct the spray underneath the security smock and towards Ward’s face. At least some of the pepper spray made contact with Ward’s bare genitals. After a few minutes, Ward agreed to be restrained, and he was then returned to his cell where he had access to running water but not soap.

Ward brought this suit, claiming, as relevant, that Officers Smith and Merriett violated his Eighth Amendment right to be free from cruel and unusual punishment, that he sustained injuries from the administration of the pepper spray including suffering the Hydraulic Needle Effect, and that their actions constituted an intentional infliction of emotional distress under Missouri state law.

The district court conducted a bench trial, hearing testimony from Ward, Officer Smith, Officer Merriett, other SCCC employees, and other SCCC inmates. The court also reviewed a video that captured at least the final two administrations of pepper spray to Ward while he was in the strip-out cell.

After the bench trial, the court entered a written judgment, holding there was no Eighth Amendment violation in the administration of pepper spray because Ward had been lawfully ordered to submit to wrist restraints and refused to comply with the orders and the use of force was not disproportionate to the security concerns, and therefore it was not cruel or unusual. As to the fourth administration of pepper spray, the court found, based on the video evidence and Officer Smith’s testimony, that Officer Smith did not intentionally spray Ward’s genitals; rather, Officer Smith was attempting to direct the spray under the security smock toward Ward’s face. The district court also rejected Ward’s claim of intentional infliction of emotional distress, concluding Ward had not proven that the sole intent of the use of force was to cause emotional distress.

II.

Ward appeals the district court’s adverse judgment. Because the district court’s decision was reached after a bench trial, this court reviews the legal questions de novo and the. factual determinations for clear error. See Schaub v. VonWald, 638 F.3d 905, 923 (8th Cir. 2011). A district court clearly errs if its findings are “not supported by substantial evidence in thé record,-if the finding[s are] based on an erroneous view of the law, or if we are left with the definite and firm conviction that an error has been made.” Story v. Norwood, 659 F.3d 680, 685 (8th Cir. 2011) (alterations in original) (citation and internal quotation marks omitted). “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

A.

“After incarceration, only the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (alteration in original) (quotation omitted). “The infliction of pain in the course of a prison security measure, thérefore,' does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” Id. Instead, when a court determines whether a correctional officer’s use of force was excessive and in violation of the Eighth Amendment, the court must determine “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). “Because the use of force is sometimes required in prison settings, guards are liable only if they are completely unjustified in using force, i.e., they are using it maliciously and sadistically.” Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008). “Factors to be considered in deciding whether a particular use of force was reasonable are whether there was an objective need for force, the relationship between any such need and the amount of force used, the threat reasonably perceived by the correctional officers, any efforts by the officers to temper the severity of their forceful response, and the extent of the inmate’s injury.” Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002) (citing Hudson, 503 U.S. at 7, 112 S.Ct. 995).

Ward raises two points of error pertaining to his claim that the use of the pepper spray violated the Eighth Amendment. First, he claims that the district court clearly erred when it determined that Officer Smith did not intentionally administer the pepper spray to Ward’s genitals, inflicting severe pain. Second, he submits the district court clearly erred when it found the officers used force to maintain order in the prison instead of finding the use of pepper spray.was merely pretext for punishing Ward for his refusal to stop talking to another inmate.

The evidence does not clearly refute the district court’s finding that Officer Smith was attempting to administer the fourth shot of pepper spray under the security smock and towards Ward’s face. Ward claims that the video “indisputably beliefs]” the district court’s finding. Ward provides a frame-by-frame print of the video in his brief and argues that due to the position of the canister when it becomes visible it is obvious that Officer Smith intentionally sprayed Ward’s genitals. Officer Smith testified at the trial that he was attempting to direct the spray under the security smock, but he did not deny that pepper spray may have gotten on Ward’s genitals. Having reviewed the frame-by-frame photos and the video, we do not find the district court clearly erred in its factual determination. The photos and the video do not definitively show the position of the canister as it is blocked from the view of the camera by Officer Smith’s body. Further, the district court was permitted to credit Officer Smith’s testimony that he was intending to direct the spray under the smock and toward Ward’s face, as witness credibility determinations are within the exclusive domain of the district court and are virtually unreviewable on appeal. See Story, 659 F.3d at 685.

Further, the district court found Officer Smith administered pepper spray only after Ward refused the direct orders to submit to wrist restraints and the use of force was necessary to gain Ward’s compliance and maintain the safety and security of SCCC. Ward argues on appeal that the district court clearly erred in this factual finding because the evidence showed the use of force was pretext to punish Ward for his refusal to stop talking to another inmate. The district court did not clearly err in deciding the decision to use pepper spray was not pretext to punish Ward and instead the use of force was in direct response to Ward’s refusal to comply with the orders to submit to restraints in preparation to be removed from and returned to his cell. The evidence presented showed that when Ward finally complied with the orders, Officer Smith ceased using pepper spray.

B.

Finally, Ward challenges the district court’s determination that he failed to prove his claim of intentional infliction of emotional distress under Missouri law. To prove intentional infliction of emotional distress in Missouri, a plaintiff must show “(1) the defendant’s conduct was extreme and outrageous; (2) the defendant acted intentionally or recklessly; and (3) the defendant’s conduct caused extreme emotional distress resulting in bodily harm. Additionally, the plaintiff must -establish that the sole intent in acting was to cause emotional distress.” Cent. Mo. Elec. Coop. v. Balke, 119 S.W.3d 627, 636 (Mo. Ct. App. 2003) (citation omitted). Again, as discussed above, we find no error in the district court’s determination that Officer Smith employed pepper spray against Ward for the purpose of maintaining the safety and security of SCCC. Accordingly, we agree that Ward has failed to show Officer Smith’s “sole- intent in acting was to cause emotional distress.” Id.

III.

We affirm the district court’s .judgment in this matter.

      . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri.

      . At trial, Ward introduced the MDOC Training Lesson Plan on Pepper Spray Use and Chemical Agent Awareness. That material recommends a six-foot distance when administering pepper spray with the MK-9 canister— the canister used by Officer Smith—-because particles from the canister can penetrate layers of soft tissue causing the person to experience the sensation of needles piercing the skin, the Hydraulic Needle Effect.


author: BEAM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Liban HASSAN, Defendant-Appellant
    No. 15-3828
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 25, 2016
    Filed: December 21, 2016

      Attorney Jeremy Jorgenson, of Omaha, NE, for appellant Liban Hassan, did not appear and thus made no argument. The following attorney appeared on appellant’s brief—Jeremy Jorgenson, of Omaha, NE.
    Attorney Susan T. Lehr, AUSA of Omaha, NE, for appellee United States did appear and did present oral argument. In addition to Ms. Lehr, the following attorneys appeared on appellee’s brief—-Deborah R. Gilg, the United States Attorney for the District of Nebraska and Timothy R. Hook, AUSA both of Omaha, NE.
    Before RILEY, Chief Judge, BEAM and LOKEN, Circuit Judges.
   BEAM, Circuit Judge.

Liban Hassan appeals his conviction, following a jury trial, for robbery in violation of 18 U.S.C. § 1951, after he and three others stole approximately $150 in cash and several cartons of cigarettes from a convenience store gasoline station. We affirm the district court.

I. BACKGROUND

The evidence adduced at trial indicated that Hassan and three associates, Yusuf Xasan, Abdifatah Hashi, and Fuad Bur-aale, were driving around Omaha when they formulated a plan to rob a gas station convenience store for cash and cigarettes. The store clerk and Xasan testified for the government at trial. Xasan stated that as the four were proceeding west through Omaha, the four of them ended up near the targeted convenience store and began by breaking into and stealing from unlocked cars in the neighborhood. Xasan testified that Hassan said they should go into the convenience store and take cigarettes and cash, which Hassan alleged he had done with success when living in Minnesota. Xasan testified that he parked the car at the store so as to avoid the security camera sight lines. Xasan also left the car running for a fast getaway. All four entered the store, and Buraale indicated he had a gun (but apparently did not) and yelled, “where’s the money?” Xasan grabbed the clerk at the counter from behind, put some object next to the clerk’s neck, and forced the clerk to open both cash registers. Xasan and Buraale took approximately $150 in cash and cartons of cigarettes. After fobbing the store, the four went to Hassan’s residence (he was staying with his sister) and split the proceeds.

During the clerk’s testimony at trial, the government offered Exhibit 1, a DVD with video recordings of the robbery. The exhibit was a series of video clips, rather than one continuous video. The government laid foundation for the video via questions to the clerk who verified that the video clips (which he had viewed prior to trial) were a fair and adequate déscription of what happened during the robbery. Pri- or to trial, dming discovery, defense counsel was provided with a DVD that contained sixteen video angles of the robbery. However, at trial, the government only showed two of these clips to the jury during the testimony of the clerk, Xasan, and Hassan.

Nonetheless, one of the video clips shown at trial indicated that Hassan walked out of the convenience store shortly after walking in, and stood outside the door of the store. This video clip arguably supported both Hassan’s defense theory that he did not participate or know the robbery was going to happen, and also the government’s theory that Hassan helped secure the inside, and then went back outside to be the lookout. According to the testimony elicited at trial, Hassan appears to be covering his face while on video. Hassan stated on cross examination that he was doing so out of disbelief of what was going on inside the convenience store.

At the close of the government’s evidence, Hassan unsuccessfully moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Hassan and his sister testified during the defense portion of the trial. Hassan asserted that he did not know his associates were going to rob the store and that is why he left immediately after going in the store. He testified that he did not initially run away, because his cell phone was locked in the car, but when he later retrieved it, the phone was dead. Nonetheless, Hassan’s sister testified that Hassan called her early in the morning, asked to stay at her house, and arrived there alone. Hassan again unsuccessfully moved for judgment of acquittal at the close of his defense case.

During closing argument, defense counsel, still not realizing that the jury would only be shown the two video clips shown during trial instead of the sixteen clips he received during discovery, told the jury they could view a recording with sixteen different angles of the robbery. At this point, the government objected. During a sidebar, defense counsel complained about the fact that the DVD being offered into evidence at trial was a truncated version of what he was given during discovery. The district court gave a limiting instruction and the jury was only given the DVD with' the two video clips shown during trial. The jury deliberated and found Hassan guilty of interference with commerce by means of robbery as charged in Count 1 of the indictment. Hassan moved pursuant to Federal Rule of Criminal Procedure 33 for a new trial, as relevant, arguing that it was error for the government to offer a different DVD at trial than the one counsel received during, discovery, and that there was insufficient evidence to support the conviction. The district court denied the motion. Hassan appeals.

II. DISCUSSION

Under Rule 29, the court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). Rule 29(c) permits defendants to move the court to set aside a verdict and enter judgment of acquittal after trial; however, a district court has very limited latitude to do so and must not assess witness credibility or weigh evidence, and the evidence must be viewed in a light most favorable to the government. United States v. Stacks, 821 F.3d 1038, 1043 (8th Cir. 2016). Federal Rule of Criminal Procedure 33(a) states that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” As distinct from Rule 29, the court has broad discretion in deciding motions for new trial, and its decision is subject to reversal only for a clear arid manifest abuse of discretion. United States v. Amaya, 731 F.3d 761, 764 (8th Cir. 2013). Also in contrast to Rule 29, in considering a motion for new trial, the court need not view the evidence in the light most favorable to the verdict and it is permitted to weigh the evidence and evaluate the credibility of the witnesses. United States v. Knight, 800 F.3d 491, 504-05 (8th Cir. 2015). Nonethe-less, motions for new trials based on the weight of the evidence generally are disfavored, and the district court’s authority to grant a new trial should rarely be exercised. Id. at 504.

Hassan argues that the government failed to establish the intent element of the crime of interference with commerce by means of robbery. Specifically, Hassan argues that the government failed tó show that he knowingly robbed or aided and abetted in the robbery of the convenience store. Hassan makes two primary arguments; first, that he did not have the requisite mens rea for robbery (involving the use or threatened use of force or violence), as the only discussion in the car involved more of a shoplifting “grab and go” kind of crime. Second, Hassan makes a “mere presence” argument—that his being at the scene of the crime cannot establish that he knowingly robbed or aided and abetted in the robbery. See United States v. Reda, 765 F.2d 715, 719 (8th Cir.1985) (“[G]uilt cannot be inferred from ... mere presence at the scene of a crime or a mere association with members of a criminal conspiracy.”). In so doing, Hassan attacks Xasan’s, credibility. Hassan- argues that Xasan’s testimony does not establish that the discussion in the car included the possibility of either using or pretending to have a gun. Hassan also argues that Xasan was an especially un-credible witness because he was the actual perpetrator of the robbery and had motivation to lie to get a sentencing break. Hassan also points to several instances wherein Xasan arguably contradicted himself on direct examination and cross examination.

In evaluating a motion for judgment of acquittal, we cannot pass upon the credibility of witnesses or the weight to be given their testimony, as this is uniquely within the province of the trier of fact, and entitled to special deference. United States v. Goodale, 738 F.3d 917, 923 (8th Cir. 2013). Of course, in evaluating whether a new trial should be granted, we may evaluate the credibility of witnesses. Knight, 800 F.3d at 504.

Evidence in the record supports the jury’s conclusion that Hassan had the requisite mens rea and intent for robbery and was not merely present at the scene. Xa-san testified that Hassan came up with the idea to rob the convenience store. Video evidence indicated that Hassan entered the store with the three others, and then shortly thereafter waited outside the door. Xasan testified that Hassan left the location in the vehicle with the three others and that Hassan personally received some of the cash and cigarettes taken from the store. For the purposes of the Rule 29 motion, Xasan’s testimony is viewed in the light most favorable to the verdict, and we find there was sufficient evidence to support the verdict.' Although Xasan testified on cross examination that there was no discussion of force or the use of a gun, a reasonable jury could have concluded that because the object of the crime was cash and cigarettes, use of force or threatened force would reasonably be necessary to complete the crime. Even if the four did not specifically mention an intent to use force (real or pretend) when discussing the crime, the object of the caper belies any notion that force would not be necessary. Gash and cigarettes are not out in the open on shelving like gum or candy. Any “grabbing” of cash or cigarettes would necessarily involve the use or threat of force, unless the four somehow knew the store employee would be complicit or completely uninterested in the crime. Finally, we find nothing in the record to suggest that the interest of justice requires a new trial to be granted under Rule 33.

Hassan also makes reference to the dispute over the video clips in his statement of the case, alleging that “[b]ecause counsel for the government and defense counsel were on different pages in terms of what digital evidence was on the key Exhibit, and the Appellant was prejudiced as a result, the Appellant now seeks a judicial determination of the lingering issue of whether or not such an inadvertent suppression of evidence justifies a new trial,” There is no further mention-,of this argument in Hassan’s briefing; however, because the issue was cursorily raised in the opening brief, we exercise our discretion to consider the arguments made to the district court on this issue in the post-trial motions.

The district court found that the government did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by virtue of its use of Exhibit 1 because the government had disclosed the entire video prior to trial. Brady covers the suppression of evidence, id. at 86, 83 S.Ct. 1194, not the use of evidence at trial that is packaged differently than it was during pretrial disclosures, which is essentially what happened here. Prior to trial, defense counsel was given a DVD with all the camera angle video clips, and the government used only a portion of those clips at trial. Defense counsel alluded to a problem -with the way the government described the exhibit it was going to use, leading defense counsel to believe that the entire DVD would be shown at trial. But that possibility does not present a Brady issue. There is’no question that Exhibit 1 was correctly authenticated and. that a proper foundation was laid for the exhibit. The district court found there was “no evidence” that the government misled the court or the witness or the defense team with regard to Exhibit 1, and we do not see anything in the record to refute that notion.

III. CONCLUSION

Accordingly, we affirm Hassan’s conviction.

      . The Honorable Laurie Smith Camp, Chief Judge, United States District Court for the District of Nebraska.