Submitted: September 25, 2018
from United States District Court for the Western District of
Arkansas - Texarkana
WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
Earnest Ralph Lomax pleaded guilty to distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1),
possession of an unregistered destructive device in violation
of 26 U.S.C. §§ 5841, 5861(d), and 5871, and being
a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The district
courtimposed concurrent sentences of 151
months' imprisonment on the controlled substance offense
and 120 months' imprisonment on each of the weapons
charges. Lomax argues that the court erroneously applied a
four-level enhancement for trafficking in firearms under
United States Sentencing Guidelines (U.S.S.G. or Guidelines)
§ 2K2.1(b)(5). We affirm.
confidential source alerted law enforcement in Texarkana,
Arkansas, that Lomax was attempting to sell an automatic
weapon, ammunition, and a live hand grenade. The source
provided investigators with a photograph sent by Lomax
depicting the items in a blue tool case, whereupon law
enforcement officers initiated a controlled purchase. The
source contacted Lomax and agreed to meet him in a field near
a chemical plant in Texarkana.
arrived at the plant at approximately 3:30 p.m. The source, a
felon, retrieved a box from the back of Lomax's truck and
signaled to law enforcement that the transaction had taken
place. Agents confirmed that the source had received a blue
tool case containing a hand grenade and an automatic weapon
with four magazines and two boxes of ammunition. A waiting
arrest team was able to take Lomax into custody after a
two-mile, crash-ending pursuit. Neither the firearm nor the
grenade was registered. See 26 U.S.C. §
sentencing the district court overruled Lomax's objection
to the application of Guidelines § 2K2.1(b)(5), which
applies if a defendant
(I) transported, transferred, or otherwise disposed of two or
more firearms to another individual . . .; and
(ii) knew or had reason to believe that such conduct would
result in the transport, transfer, or disposal of a firearm
to an individual-
(I) whose possession or receipt of the firearm would be
(II) who intended to use or dispose of the firearm
U.S.S.G. § 2K2.1 cmt. n.13(A). The district court
determined that Lomax had transferred two weapons to someone
he knew or had reason to believe was a felon and who he had
reason to believe intended to use the weapons unlawfully.
argues on appeal that the facts set forth in the presentence
report (PSR) show neither his knowledge that the source was a
felon, nor any reason for him to suspect that the source
intended to use the weapons unlawfully. We review de
novo the district court's application of the
Guidelines, and we review its factual findings for clear
error. United States v. Birdine, 515 F.3d 842, 845
(8th Cir. 2008). Because we conclude that ...