203700P.pdf   04/25/2022  United States  v.  Darrell Two Hearts
   U.S. Court of Appeals Case No:  20-3700
   U.S. District Court for the District of South Dakota - Northern   
   [PUBLISHED] [Colloton, Author, with Shepherd and Kelly, Circuit Judges] 
   Criminal Case - Conviction and Sentence. There was ample evidence 
   presented from which a reasonable jury could conclude the Two Hearts 
   constructively possessed the firearm and that he was a prohibited person; 
   there was sufficient evidence that he was an unlawful user of a controlled 
   substance and possessed methamphetamine at the time of his arrest. The 
   alleged discrepancy in the testimony of whether there was one bag or three 
   bags is easily explained and a jury could conclude that the one bag found 
   in Two Hearts?s pocket contained three baggies. There was sufficient 
   evidence to support finding that Two Hearts knew of his status as a 
   convicted felon. The district court?s admission of a Facebook photograph 
   was not an abuse of discretion, as the evidence was relevant and the 
   absence of conclusive evidence that the item in the photograph was real 
   does not create a risk of unfair prejudice. Although the district court 
   did not make an explicit finding that the possession of the gun 
   facilitated his possession of methamphetamine, the district court?s 
   finding that Two Hearts possessed methamphetamine and a loaded gun at the 
   same time presenting a very dangerous situation was sufficient to show the 
   district court did not apply the four-level enhancement under Guidelines 
   section 2K2.1(b)(6)(B) automatically based on mere proximity.