F I L E D

United States Court of Appeals

Tenth Circuit

AUG 14 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

v.

KEVIN CHARLES EATON,

Defendant-Appellant. 

No. 00-1276

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 99-CR-329-N)

Sean Connelly, Assistant United States Attorney, District of Colorado, (Thomas

L. Strickland, United States Attorney, District of Colorado, with him on the

briefs), Denver, Colorado, for Plaintiff-Appellee.

Wade H. Eldridge, Wade H. Eldridge, P.C., Denver, Colorado, for DefendantAppellant.

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION
1

 These clubs describe themselves as outlaw motorcycle clubs because they

“live outside the law.”

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Defendant Kevin C. Eaton was convicted in a jury trial for unlawfully

possessing three unregistered explosive devices in violation of 26 U.S.C. §

5861(d). During the trial, the district court rejected Eaton’s assertion that the

circumstances of his case were analogous to those in United States v. Dalton, 960

F.2d 121 (10th Cir. 1992). The district court therefore denied Eaton’s motion for

judgment of acquittal and, during the jury instruction conference, rejected his

proposed instruction based on Dalton. Eaton challenges these rulings. He also

challenges several aspects of his sentence. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, this court affirms.

II. BACKGROUND

As a member of a motorcycle club, Eaton frequently attended motorcycle

rallies which brought several such clubs together throughout Colorado. He

became friendly with a member of a different motorcycle club who he knew as

Bo, an undercover identity assumed by Special Agent Blake Boteler. Special

Agent Boteler had infiltrated a motorcycle club in an attempt to uncover evidence

of illegal firearm and narcotics trafficking in the outlaw motorcycle club

community.1

 Both Eaton and Special Agent Boteler served as the enforcers for

their respective motorcycle clubs.
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During a conversation between the two men at a motorcycle rally, Eaton

expressed an interest in obtaining blasting caps. Special Agent Boteler indicated

that he would look into acquiring some from a friend in New Mexico. During the

same conversation, Boteler informed Eaton he was interested in obtaining three

pipe bombs and asked Eaton if he would make them for him. Special Agent

Boteler indicated to Eaton that he needed the bombs to use on a car. Eaton agreed

to build the pipe bombs.

Shortly thereafter, Special Agent Boteler went to Eaton’s house to pick up

the pipe bombs. Eaton gave Boteler three constructed pipe bombs and four plastic

bags filled with smokeless powder to put in the pipes. Special Agent Boteler

asked Eaton to explain the most effective way to blow up a car. Eaton responded

by telling him to place the bombs near the gas tank. During the course of their

meeting, Special Agent Boteler indicated that the bombs would be used on

someone who deserved it. Eaton acknowledged that Boteler’s planned actions

were felonious.

Eaton was subsequently indicted for unlawfully possessing three

unregistered explosive devices in violation of 26 U.S.C. § 5861(d). Following a

jury trial, Eaton was found guilty of the charge. The district court sentenced

Eaton to fifty-seven months imprisonment. In calculating Eaton’s sentence, the

district court enhanced his base offense level by one level for the number of
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devices used in the offense, two levels for an offense involving a destructive

device, and four levels for the transfer of a firearm with knowledge that it would

be used in connection with another felony offense. The district court refused to

adjust Eaton’s sentence downward for his alleged acceptance of responsibility.

On appeal, Eaton challenges the district court’s denial of his motion for

judgment of acquittal and the district court’s refusal to give his proposed jury

instruction. Eaton also challenges the district court’s calculation of his sentence

under the United States Sentencing Guidelines. 

III. DISCUSSION

A. Motion for Judgment of Acquittal and Proposed Jury Instruction

Eaton claims the district court should have granted his motion for 

judgment of acquittal or, in the alternative, should have given his proposed jury

instruction pursuant to United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). A

district court’s denial of a motion for judgment of acquittal is reviewed de novo. 

See United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir.1999). Although

this court reviews a district court’s refusal to give a particular jury instruction for

abuse of discretion, we examine the instructions as a whole de novo to determine

whether the instructions adequately state the governing law. See United States v.

Pacheco, 154 F.3d 1236, 1238 (10th Cir. 1998).
2

 Eaton relies on his assertion that the pipe bombs could not be registered in

order to support a Fifth Amendment claim. Because Eaton was not legally

prohibited from registering the pipe bombs, his claim fails. 

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In Dalton, this court held that due process barred a defendant’s conviction

under a statute that punished his failure to register a machinegun when the

registration of a machinegun was precluded by law. See 960 F.2d at 122. Eaton

analogizes his case to Dalton, claiming it was impossible for him to register a

pipe bomb with the ATF and he therefore cannot be punished for his failure to

comply with the registration statute. Dalton involved a situation in which a

particular statute criminalized possession of a machine gun, thereby making gun

registration legally impossible. See id. at 122-23; see also 18 U.S.C. § 922(o)(1)

(“[I]t shall be unlawful for any person to transfer or possess a machinegun.”). 

There is no similar statute criminalizing the possession of a destructive device

such as a pipe bomb. Without such a statute, it was not legally impossible for

Eaton to register the pipe bomb. See United States v. McCollom, 12 F.3d 968,

971 (10th Cir. 1993). He could have imprinted a serial number on the pipe bomb

and attempted to register it with the ATF. Whether the ATF would have accepted

the pipe bomb for registration does not bear on the issue of legal impossibility. 

See id. Thus, Eaton was not deprived of due process.2

 

B. Sentencing Issues

Eaton raises four issues on appeal related to the sentence imposed by the
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district court. Eaton claims the district court erred by (1) refusing to grant him a

two-level downward adjustment pursuant to § 3E1.1(a) of the Sentencing

Guidelines for acceptance of responsibility, (2) subjecting him to a four-level

enhancement pursuant to § 2K2.1(b)(5) of the Sentencing Guidelines for unlawful

transfer of a firearm with reason to believe it would be used in connection with

another felony offense, (3) rejecting his claim that the government engaged in

outrageous conduct, and (4) failing to submit to the jury questions of fact that

increased his sentence in contravention of the United States Supreme Court’s

declaration in Apprendi v. New Jersey, 530 U.S. 466 (2000). This court reviews

the district court’s legal conclusions under the Sentencing Guidelines de novo and

its factual findings for clear error, affording great deference to the district court’s

application of the Guidelines to the facts. See United States v. Janusz, 135 F.3d

1319, 1324 (10th Cir. 1998); see also U.S.S.G. § 3E1.1, cmt. n.5. Constitutional

challenges to a sentence are also reviewed de novo. See United States v. Jones,

213 F.3d 1253, 1261 (10th Cir. 2000). 

(1) Acceptance of Responsibility

Eaton challenges the district court’s refusal to apply a two-level reduction

to his sentence for acceptance of responsibility. At trial, Eaton asserted an

entrapment defense. As the district court correctly noted, an assertion of

entrapment as a defense does not bar a defendant from receiving a two-level
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reduction for acceptance of responsibility. See United States v. Garcia, 182 F.3d

1165, 1172 (10th Cir. 1999). Eaton, however, bears the burden of demonstrating

an “affirmative acceptance of personal responsibility for his criminal conduct.” 

United States v. McAlpine, 32 F.3d 484, 489 (10th Cir. 1994) (quotation omitted). 

When a defendant is convicted at trial, a sentencing court’s determination

that he has accepted responsibility is based primarily on pre-trial statements and

conduct. See U.S.S.G. § 3E1.1, cmt. n.2. In this case, the district court indicated

that it was not aware of any pretrial statements or conduct by Eaton that would

support a determination that Eaton accepted responsibility for the crime of

conviction. The district court thus concluded that the reduction was not merited. 

Eaton makes no claim that he ever made pre-trial statements or engaged in pretrial conduct that would suggest he accepted responsibility for the crime of

conviction. Eaton simply claims he deserved the reduction because he testified

truthfully at trial about making devices that, when taken apart and put back

together with gun powder, were pipe bombs. It is clear the district court did not

believe that Eaton met his burden of demonstrating an affirmative acceptance of

personal responsibility. Bearing in mind this court’s deference to the sentencing

judge’s determination, we cannot conclude that the district court’s factual

findings were clearly erroneous. Thus, a two-level reduction was not warranted.

(2) Transfer of Firearm in Connection with Another Felony
3

 Eaton also suggests the enhancement might not apply because the

destructive devices were never used to commit a separate crime. Although Eaton

later appears to dismiss his own argument, it is worth noting the law on this point. 

Even if a separate felony is never committed, a four-level enhancement is

appropriate if the destructive device had the potential to facilitate a separate

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The district court imposed a four-level enhancement pursuant to §

2K2.1(b)(5) of the Sentencing Guidelines, which provides for such an adjustment

if a defendant “possessed or transferred any firearm or ammunition with

knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). The term

firearm includes destructive devices such as pipe bombs. See 18 U.S.C. §

921(a)(3)(D); id. § 921(a)(4)(A)(i). A felony offense includes any federal, state,

or local offense punishable by imprisonment for a term exceeding one year. See

U.S.S.G. § 2K2.1, cmt. n.7. The district court found that Eaton’s testimony

supported “an inference of knowledge that the pipe bombs had the intended use of

feloniously destroying a car and, at a later point in time, that they had the

intended use of homicide.” Eaton claims that because pipe bombs have no

purpose other than blowing things up, the potential to commit a felony offense is

always present when one possesses such a destructive device. Thus, Eaton

argues, the commission of a felony offense such as arson or murder is

coincidental to the bombs and not separate from their intended use and the

enhancement is therefore not warranted.3
felony offense. See United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir.

1998).

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The only authority Eaton cites to support his claim is United States v.

Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir. 1993). Eaton’s reliance on

Gomez-Arrellano, however, is misguided. Gomez-Arrellano does not stand for

the proposition that because felony offenses are coincidental to certain types of

weapons, a sentence enhancement under § 2K2.1(b)(5) is not appropriate. 

Gomez-Arrellano prohibits the § 2K2.1(b)(5) enhancement if possession of a

firearm is merely coincidental to a separate offense. See id. If this court accepts

Eaton’s argument, a sentence enhancement under § 2K2.1(b)(5) would never be

permissible in connection with a conviction for any crime involving a destructive

device. This is not the rule. The mere fact that a destructive device has the

potential to facilitate a felony does not exempt the application of § 2K2.1(b)(5).

To the extent that Eaton challenges the district court’s application of §

2K2.1(b)(5) to the facts of this case, this court finds no error in the imposition of

the four-level enhancement. Eaton testified that he was aware Special Agent

Boteler wanted to use the pipe bomb to blow up a car. He even instructed the

agent on the most effective way to blow it up by putting the bomb underneath the

gas tank. Eaton’s own testimony plainly indicates that he had reason to believe

the bomb would be used in connection with another felony offense. 
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Eaton also claims the imposition of the four-level enhancement constitutes

impermissible double counting because the district court already imposed a twolevel enhancement pursuant to § 2K2.1(b)(3) of the Sentencing Guidelines.

Impermissible double counting occurs when the same conduct of the defendant is

used to support separate increases under different enhancement provisions which

necessarily overlap, are indistinct, and serve identical purposes. See United

States v. Flinn, 18 F.3d 826, 829 (10th Cir. 1994). 

Section 2K2.1(b)(3) provides for a two-level enhancement if the offense

involved a destructive device. See U.S.S.G. § 2K2.1(b)(3). Section 2K2.1(b)(5)

provides for a four-level enhancement if the defendant possessed or transferred a

firearm, including a destructive device, with reason to believe that it would be

used in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(5). 

Despite Eaton’s contentions to the contrary, these provisions serve distinct

purposes. Whereas § 2K2.1(b)(3) provides an enhancement for the mere

involvement of a destructive device, § 2K2.1(b)(5) focuses on the defendant’s

knowledge that the device will be used in connection with a separate felony

offense. The facts in any given case may warrant a sentence enhancement under §

2K2.1(b)(3) and not § 2K2.1(b)(5). Because the provisions serve distinct

purposes, the district court’s enhancement of Eaton’s sentence under both §

2K2.1(b)(3) and § 2K2.1(b)(5) did not constitute double counting. 
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(3) Alleged Outrageous Governmental Conduct

Eaton claims the government engaged in such outrageous conduct that the

district court should have disregarded the Sentencing Guidelines and not

calculated his sentence based on the involvement of three pipe bombs or his

knowledge that the bombs would be used for a separate felony. Section

2K2.1(b)(1)(A) of the Sentencing Guidelines enhances a defendant’s base level

offense by one level if the offense involves three or four firearms. See U.S.S.G. §

2K2.1(b)(1)(A). As noted above, § 2K2.1(b)(5) enhances a defendant’s base level

offense for transferring a firearm with knowledge that it will be used in

connection with a separate felony. See U.S.S.G. § 2K2.1(b)(5). Eaton suggests

the government agent asked him to produce three pipe bombs and informed him

that using them on a car was a felony simply to increase his potential penalty at

sentencing.

A defendant must overcome a very high threshold to establish outrageous

governmental conduct. See United States v. Lacey, 86 F.3d 956, 964 (10th Cir.

1996). The challenged conduct must be so shocking, outrageous, and intolerable

that it offends the universal sense of justice. See United States v. Mosley, 965

F.2d 906, 910 (10th Cir. 1992). The undercover agent’s behavior does not rise to

this level. Eaton was not coerced nor reluctant to produce three pipe bombs for

Special Agent Boteler. Cf. United States v. Staufer, 38 F.3d 1103, 1105, 1108
4

 “Outrageous governmental conduct” is the same concept as “sentencing

entrapment.” See United States v. Lacey, 86 F.3d 956, 963 & n.5 (10th Cir.

1996).

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(9th Cir. 1994) (remanding for resentencing due to sentencing entrapment based

on fact that defendant sold large quantity of drugs due to coercion from

government agent).4 Eaton acknowledged that using the bomb to blow up a car

was a felony and even explained the most effective way to carry out this act. 

Accordingly, the district court properly rejected Eaton’s outrageous governmental

conduct claim. 

(4) Apprendi Claim

Eaton claims that because the jury did not make factual determinations with

regard to the sentence enhancements under § 2K2.1(b)(1)(A) and § 2K2.1(b)(5),

he should be resentenced based only on the elements decided by the jury in light

of the United States Supreme Court’s decision in Apprendi v. New Jersey, 530

U.S. 466 (2000). Because Eaton’s fifty-seven month sentence was not above the

maximum term for the crime of conviction, Apprendi is not implicated. See

United States v. Heckard, 238 F.3d 1222, 1235 (10th Cir. 2001) (holding that no

Apprendi error exists when a defendant’s sentence falls below the statutory

maximum); see also 26 U.S.C. § 5871 (providing a ten-year imprisonment

maximum for a violation of 26 U.S.C. § 5861(d)). Thus, Eaton’s claim is without

merit.
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IV. CONCLUSION

For the foregoing reasons, the district court is AFFIRMED.