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United States v. Ralph Lomax

United States Court of Appeals, Eighth Circuit

December 12, 2018

United States of America Plaintiff-Appellee
v.
Skip Earnest Ralph Lomax Defendant-Appellant

          Submitted: September 25, 2018

          Appeal from United States District Court for the Western District of Arkansas - Texarkana

          Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE.

         Skip 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 court[1]imposed 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.

         A 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.

         Lomax 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. § 5861(d).

         At 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 unlawful; or
(II) who intended to use or dispose of the firearm unlawfully.

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.

         Lomax 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 ...


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