                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0073n.06

                                            No. 18-3428

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                 Feb 13, 2019
UNITED STATES OF AMERICA,                                 )
                                                          )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                                )
                                                          )   ON APPEAL FROM THE UNITED
v.                                                        )   STATES DISTRICT COURT FOR
                                                          )   THE NORTHERN DISTRICT OF
KEVIN R. LUMPKIN,                                         )   OHIO
                                                          )
       Defendant-Appellant.                               )


       BEFORE: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.

       PER CURIAM.           Kevin R. Lumpkin appeals the district court’s amended judgment

resentencing him to 63 months of imprisonment for a firearm offense. As set forth below, we

AFFIRM.

       A federal grand jury charged Lumpkin, an officer with the North Randall Police

Department, with two counts of selling a firearm to a person whom he knew or had reasonable

cause to believe had been convicted of a crime punishable by imprisonment for a term exceeding

one year, in violation of 18 U.S.C. §§ 922(d)(1) and 924(a)(2). Count 1 involved the sale of a Hi-

Point .45 caliber rifle to Calvin Kelly, while Count 2 involved the sale of a Ruger .380 caliber

pistol to Michelle Devine. Lumpkin proceeded to trial, and the jury convicted him on both counts.

At sentencing, the district court calculated a guidelines range of 63 to 78 months of imprisonment

based on a total offense level of 26 and a criminal history category of I. The district court sentenced

Lumpkin to concurrent terms of 63 months of imprisonment. Lumpkin appealed his convictions,

which this court affirmed. United States v. Lumpkin, 677 F. App’x 992 (6th Cir. 2017).
No. 18-3428
United States v. Lumpkin

       Lumpkin then moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. The district court granted Lumpkin’s § 2255 motion as to his claim that his counsel was

ineffective for failing to investigate whether Devine’s civil rights had been restored prior to her

purchase of the Ruger pistol. The district court therefore vacated Lumpkin’s conviction on Count

2, scheduled a resentencing hearing, and referred the case to the probation office to make any

changes to the guidelines calculation. The probation office subsequently advised the district court

that the guidelines calculation remained the same. At the resentencing hearing, the district court

applauded Lumpkin’s rehabilitative efforts, but found his offense conduct “to be extraordinarily

serious.” The district court again sentenced Lumpkin to 63 months of imprisonment for Count 1,

finding that “nothing has changed that should alter that sentence.” Lumpkin now appeals his

resentencing.1

       Lumpkin first argues that the district court incorrectly applied a 4-level enhancement for

engaging in the trafficking of firearms under U.S.S.G. § 2K2.1(b)(5), resulting in a procedurally

unreasonable sentence. “In reviewing the district court’s calculation of a defendant’s Guidelines

sentencing range, including the application of enhancements under § 2K2.1, we review the district

court’s legal conclusions de novo and its factual findings for clear error.” United States v. Henry,

819 F.3d 856, 864 (6th Cir. 2016).

       U.S.S.G. § 2K2.1(b)(5) provides for a 4-level increase to a defendant’s offense level “[i]f

the defendant engaged in the trafficking of firearms.”        According to U.S.S.G. § 2K2.1’s

commentary, this enhancement applies if the defendant:




       1
        The government concedes that Lumpkin’s issues are preserved for appellate review
because the district court failed to ask the appropriate question under United States v. Bostic,
371 F.3d 865, 872–73 (6th Cir. 2004), at the conclusion of the resentencing hearing.
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United States v. Lumpkin

       (i) transported, transferred, or otherwise disposed of two or more firearms to
       another individual, or received two or more firearms with the intent to transport,
       transfer, or otherwise dispose of 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 (comment. (n.13(A)).

       Lumpkin objected to the trafficking enhancement on the basis that, since the district court

vacated his conviction involving Devine, he transferred firearms to only one person, Kelly.

Considering U.S.S.G. § 2K2.1’s structure and commentary, this court has construed the trafficking

enhancement as “aimed at defendants who provide multiple firearms to at least one buyer or other

transferee.” Henry, 819 F.3d at 871. Because the evidence at trial established that Lumpkin

transferred at least three firearms to Kelly, the district court properly overruled this objection.

       Lumpkin further argues on appeal that the district court failed to address whether Kelly

was “an individual whose possession or receipt of the firearm would be unlawful,” which means

“an individual who (i) has a prior conviction for a crime of violence, a controlled substance offense,

or a misdemeanor crime of domestic violence; or (ii) at the time of the offense was under a criminal

justice sentence, including probation, parole, supervised release, imprisonment, work release, or

escape status.” U.S.S.G. § 2K2.1, cmt. n.13(B). The evidence at trial showed that Kelly was on

probation during the relevant time period and that Lumpkin was involved in conversations about

Kelly’s probation, advising him to buy an antioxidant from a drug store to pass a urine drug test.

In addition, Lumpkin knew or had reason to believe that Kelly intended to use the firearms

unlawfully, given that Kelly was a drug dealer, that Lumpkin came over to Kelly’s house to buy

and smoke marijuana, and that Kelly bought firearms from Lumpkin to protect himself after he

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United States v. Lumpkin

was shot during a home-invasion robbery. See United States v. Freeman, 640 F.3d 180, 189 (6th

Cir. 2011). Based on the evidence presented at trial, the district court correctly applied the 4-level

trafficking enhancement.

         Lumpkin also argues that the district court improperly denied him a reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1. The district court’s factual determination as

to whether “a defendant has accepted responsibility should be accorded great deference and should

not be disturbed unless clearly erroneous.” United States v. Hollis, 823 F.3d 1045, 1047 (6th Cir.

2016).

         U.S.S.G. § 3E1.1(a) provides for a 2-level reduction in a defendant’s offense level “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense.” To merit this

reduction, Lumpkin “bore the burden of proving his acceptance of responsibility by a

preponderance of the evidence.” United States v. Bacon, 617 F.3d 452, 458 (6th Cir. 2010).

“While a defendant who proceeds to trial is not automatically ineligible for an acceptance-of-

responsibility reduction, such a defendant must fall into the rare situation where he ‘goes to trial

to assert and preserve issues that do not relate to factual guilt’ such as challenging the

constitutionality of a statute.” United States v. Calvetti, 836 F.3d 654, 670 (6th Cir. 2016) (quoting

U.S.S.G. § 3E1.1, cmt. n.2). Lumpkin’s case does not fall into such a rare situation. Lumpkin

consistently denied knowing or having reasonable cause to believe that Kelly was a felon despite

evidence to the contrary. At the resentencing hearing, Lumpkin continued to deflect responsibility,

attributing his offense to “my ignorance of law and my inability to see who I was dealing with

during this time of my life that put me in this situation.” Nothing in the record supports Lumpkin’s

argument that the district court withheld a reduction for acceptance of responsibility to penalize




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United States v. Lumpkin

him for exercising his right to a jury trial. We can discern no clear error in the district court’s

denial of a reduction for acceptance of responsibility.

       For these reasons, we AFFIRM the district court’s amended judgment.




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