United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2925
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Skip Earnest Ralph Lomax

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

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

                           Submitted: September 25, 2018
                             Filed: December 12, 2018
                                   ____________

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 court1
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


      1
       The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.

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      (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, 

, 845 (8th Cir. 2008). Because
we conclude that the facts presented here satisfy the unlawful use prong, we need not
decide whether Lomax knew that the source was a felon.

       Based on the circumstances known to Lomax at the time of the sale, he had
reason to believe that the source intended to use the weapons unlawfully. See United
States v. Asante, 

, 644 (11th Cir. 2015) (holding that knowledge of
intent was not required if the circumstances gave the defendant reason to believe that
the weapons would be used unlawfully). Neither the automatic firearm nor the hand
grenade was registered with the National Firearms Registration and Transfer Record,
as required by law. See 26 U.S.C. § 5861(d). This fact alone rendered possession of
the weapon by both Lomax and the confidential source “necessarily unlawful.”
United States v. Pepper, 

, 525 (8th Cir. 2014). Moreover, the nature of
the sale was clandestine. See United States v. Juarez, 

, 252 (5th Cir.
2010) (concluding that the clandestine nature of a transaction involving military-style
assault weapons supported an inference of unlawful intent); see also United States v.
Freeman, 

, 189 (6th Cir. 2011) (deciding that there was evidence of

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unlawful intent when the defendant exchanged guns for drugs in the wee hours of the
morning). Lomax and the source met in their vehicles in the middle of an open field
near a chemical plant. They exchanged $1,000 in cash for unregistered, highly
dangerous, military-style weapons that were concealed in a tool case. Based on the
nature of the weapons and the circumstances under which they were exchanged,
Lomax had reason to believe that the confidential source, whose mere possession of
the weapons was unlawful, also intended to use the weapons unlawfully.

      The sentence is affirmed.

KELLY, Circuit Judge, dissenting.

       The firearms trafficking enhancement, USSG § 2K2.1(b)(5), applies only under
specific circumstances. It is applicable if the defendant “knew or had reason to
believe that [his] conduct would result in the transport, transfer, or disposal of a
firearm to” one of two types of individuals: “(I) [an individual] whose possession or
receipt of the firearm would be unlawful; or (II) [an individual] who intended to use
or dispose of the firearm unlawfully.” USSG § 2K2.1 cmt. n.13(A)(ii). Each of these
two subparts has its own narrow set of requirements.

      The district court concluded that Lomax’s conduct satisfied subpart (I), the
“possession” prong. In order for the possession prong to apply, the type of
“individual” whose possession or receipt of the firearm would be unlawful is limited:
The defendant must know or have reason to believe the individual is one “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.” 

The district court
reasoned that this prong applied because Lomax sold the firearms to a “known felon.”



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      The court does not rely on this rationale to affirm application of the
§ 2K2.1(b)(5) enhancement, and neither would I. There is no evidence that Lomax
knew or had reason to believe he was selling firearms to a “known felon,” much less
someone with one of the specific predicate felony convictions required to trigger
application of the possession prong. The district court apparently relied on testimony
from an FBI agent that the buyer had “been a convicted felon for quite a while,” but
there was no evidence that Lomax knew, or should have known, this fact. There is
also nothing in the record about the nature of the purchaser’s prior conviction. See
United States v. Francis, 

, 898 (10th Cir. 2018) (vacating sentence where
there was no evidence defendant “had reason to believe that the [purchaser] had a
conviction in one of the listed categories of offenses”).

        Instead, the court concludes that Lomax satisfied subpart (II)—the “use” prong
of the enhancement—in part because two of the firearms in question were
unregistered. But a purchaser’s desire to possess an unregistered firearm is not
sufficient to infer that the purchaser “intend[s] to use . . . the firearm unlawfully.”
USSG § 2K2.1 cmt. n.13(A)(ii)(II) (emphasis added). “Use” and “possess” have
different meanings. “Use” means “to put into action or service” or to “employ” the
object in question, Use, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012),
which is distinct from mere possession. “Use” and “possess” appear in § 2K2.1
multiple times; inclusion of both terms would be unnecessary if they were
interchangeable. See, e.g., USSG § 2K2.1(b)(6)(B) (“If the defendant . . . used or
possessed . . . .”); USSG § 2K2.1(c)(1) (“If the defendant used or possessed . . . .”).
Otherwise subpart (I) of the enhancement is rendered superfluous. The possession
of a firearm by a person with almost any felony conviction—not just one of the listed
types that trigger application of subpart (I)—is unlawful. See 18 U.S.C. § 922(g)(1).
If any unlawful possession can trigger the “use” prong, then any activity that would
satisfy subpart (I) would also constitute unlawful “use” under subpart (II).




                                         -5-
       In Bailey v. United States, 

(1995), the Supreme Court analyzed
the phrase “uses or carries a firearm” in 18 U.S.C. § 924(c)(1). In a unanimous
opinion, the Court stated unequivocally that “‘use’ must connote more than mere
possession of a firearm.” 

Looking to the word’s ordinary definition, the
Court reasoned that “‘use’ impl[ies] action and implementation.” 

Like the
trafficking enhancement, § 924(c)(1) employs the term “use” in close proximity to
other terms that would be rendered superfluous if “use” encompassed mere
possession. 

“Use” of a firearm, the Court concluded, requires the
firearm to be “actively employed.” 

The Guidelines do not provide a
contrary definition of “use,” and the distinction between “use” and “possession”
applies with equal force in § 2K2.1. See also USSG § 2A4.1, cmt. n.2 (“‘A
dangerous weapon was used’ means that a firearm was discharged, or a ‘firearm’ or
‘dangerous weapon’ was ‘otherwise used’ (as defined in [§ 1B1.1]).”); USSG
§ 1B1.1, cmt. n.1(I) (2016) (“‘Otherwise used’ with reference to a dangerous weapon
(including a firearm) means that the conduct did not amount to the discharge of a
firearm but was more than brandishing, displaying, or possessing a firearm or other
dangerous weapon.”).

       The plain meaning of “use” means that subpart (II) cannot apply just because
the purchaser sought to possess an unregistered firearm.3 The government must
present some evidence about what the defendant knew regarding the purchaser’s
plans for the firearm. This burden is not onerous. The enhancement applies if there
is evidence sufficient to infer, by a preponderance, that the defendant should have


      2
       In response to Bailey, Congress amended the statute to add the word
“possesses” in addition to “uses or carries.” See United States v. O’Brien, 

, 232–33 (2010) (discussing amendment). This only reinforces the conclusion
that “possess” means something different than “use.”
      3
       Under the plain language of subpart (I), knowledge that the firearm is
unregistered would not be sufficient to satisfy the possession prong either.

                                        -6-
known that the purchaser intended to use the firearm in connection with some other
criminal activity. See, e.g., United States v. Stebbins, 523 F. App’x 1, 5 (1st Cir.
2013) (Souter, J.) (application of enhancement was proper where evidence showed
“the defendant was planning to give these firearms to people he knew were drug
dealers”); 

(“[Defendant’s] sale of firearms to his heroin
dealer in the wee hours of the morning in exchange for heroin and cash gave him
reason to know or have reason to believe that his heroin dealer ‘intended to use or
dispose of the firearm unlawfully.’”); 

(affirming application
of enhancement where defendant acted as a straw purchaser, “purchased over two
dozen weapons, most of them military-style assault rifles, and delivered them to a
man she knew only by a nickname”).

      Here, the government “never identified . . . what illicit use [Lomax] might
believe [the purchaser] would make of the [firearms],” making application of the
enhancement improper. United States v. Harris, 719 F. App’x 946, 950 (11th Cir.
2018) (per curiam); see also United States v. Green, 360 F. App’x 521, 525 (5th Cir.
2010) (per curiam) (vacating sentence where “[t]he record is silent about what [the
defendant] knew, or had reason to believe, with regard to [the purchasers’] plans for
the guns”). Although the court characterizes the sale as “clandestine,” the facts
underlying that characterization are not sufficient to show that Lomax had reason to
believe that the purchaser intended to “use” the firearms in some unlawful manner,
as opposed to merely possess them.

      Accordingly, I respectfully dissent.
                      ______________________________




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