## 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, Di strict 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, C olorado, for DefendantAppellant.

Before BRISCOE, ANDERSON , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.

I. INTRODUCTION1 These clubs describe themselves as outlaw motorcyc le clubs because they

“live outside the law.” -2- Defendant Kevin C. Eaton was convicted in a jury tr ial for unlawfully possessing three unregistered explosive devices in violation of 26 U.S.C. § 5861(d). During the trial, the district court reje cted Eaton’s assertion that the circumstances of his case were analogous to those i n United States v. Dalton , 960 F.2d 121 (10th Cir. 1992). The district court ther efore denied Eaton’s motion for judgment of acquittal and, during the jury instruct ion conference, rejected his proposed instruction based on Dalton . Eaton challenges these rulings. He also challenges several aspects of his sentence. Exerci sing 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 motorc ycle club who he knew as Bo, an undercover identity assumed by Special AgentBlake 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 th e enforcers for their respective motorcycle clubs.-3-

During a conversation between the two men at a moto rcycle rally, Eaton expressed an interest in obtaining blasting caps. Special Agent Boteler indicated that he would look into acquiring some from a frien d 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 fo r 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 E aton’s house to pick up the pipe bombs. Eaton gave Boteler three construct ed pipe bombs and four plastic bags filled with smokeless powder to put in the pip es. Special Agent Boteler asked Eaton to explain the most effective way to bl ow 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 b ombs would be used on someone who deserved it. Eaton acknowledged that B oteler’s planned actions were felonious. Eaton was subsequently indicted for unlawfully poss essing 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 calcu lating Eaton’s sentence, the district court enhanced his base offense level by o ne level for the number of-4-

devices used in the offense, two levels for an offe nse involving a destructive device, and four levels for the transfer of a firea rm 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 ac ceptance of responsibility. On appeal, Eaton challenges the district court’s de nial of his motion for judgment of acquittal and the district court’s refu sal to give his proposed jury instruction. Eaton also challenges the district co urt’s calculation of his sentence under the United States Sentencing Guidelines.
III. DISCUSSION A. Motion for Judgment of Acquittal and Proposed Ju ry Instruction Eaton claims the district court should have granted his motion for judgment of acquittal or, in the alternative, shoul d 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 gi ve 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 gover ning 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 cla im fails. -5- In Dalton , this court held that due process barred a defenda nt’s conviction under a statute that punished his failure to regist er 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 p unished for his failure to comply with the registration statute. Dalton involved a situation in which a particular statute criminalized possession of a mac hine 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 transferor possess a machinegun.”). There is no similar statute criminalizing the posse ssion of a destructive device such as a pipe bomb. Without such a statute, it wa s 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 se rial number on the pipe bomb and attempted to register it with the ATF. Whetherthe 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 s entence imposed by the-6-

district court. Eaton claims the district court er red 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) su bjecting him to a four-level enhancement pursuant to § 2K2.1(b)(5) of the Senten cing Guidelines for unlawful transfer of a firearm with reason to believe it wou ld 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 th e jury questions of fact that increased his sentence in contravention of the Unit ed 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 Se ntencing Guidelines de novo and its factual findings for clear error, affording gre at 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 ap ply a two-level reduction to his sentence for acceptance of responsibility. At trial, Eaton asserted an entrapment defense. As the district court correctl y noted, an assertion of entrapment as a defense does not bar a defendant fr om receiving a two-level-7-

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 responsibili ty 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 sentencin g court’s determination that he has accepted responsibility is based primar ily on pre-trial statements and conduct. See U.S.S.G. § 3E1.1, cmt. n.2. In this case, the dist rict court indicated that it was not aware of any pretrial statements orconduct by Eaton that would support a determination that Eaton accepted respons ibility for the crime of conviction. The district court thus concluded thatthe reduction was not merited. Eaton makes no claim that he ever made pre-trial st atements or engaged in pretrial conduct that would suggest he accepted respon sibility for the crime of conviction. Eaton simply claims he deserved the re duction 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 Felony3 Eaton also suggests the enhancement might not appl y because the

destructive devices were never used to commit a sep arate crime. Although Eaton later appears to dismiss his own argument, it is wo rth noting the law on this point. Even if a separate felony is never committed, a fou r-level enhancement is appropriate if the destructive device had the poten tial to facilitate a separate -8- The district court imposed a four-level enhancementpursuant to § 2K2.1(b)(5) of the Sentencing Guidelines, which pro vides for such an adjustment if a defendant “possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it wou ld 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 b ombs. 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 t erm exceeding one year. See U.S.S.G. § 2K2.1, cmt. n.7. The district court fou nd 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 becau se 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 destructiv e device. Thus, Eaton argues, the commission of a felony offense such as arson or murder is coincidental to the bombs and not separate from the ir intended use and the enhancement is therefore not warranted. 3felony offense. See United States v. Bunner , 134 F.3d 1000, 1006 (10th Cir.

1998). -9- 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 rel iance on Gomez-Arrellano , however, is misguided. Gomez-Arrellano does not stand for the proposition that because felony offenses are co incidental 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 possess ion of a firearm is merely coincidental to a separate offens e. See id. If this court accepts Eaton’s argument, a sentence enhancement under § 2K 2.1(b)(5) would never be permissible in connection with a conviction for anycrime 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 th e application of § 2K2.1(b)(5). To the extent that Eaton challenges the district co urt’s application of § 2K2.1(b)(5) to the facts of this case, this court f inds no error in the imposition of the four-level enhancement. Eaton testified that h e was aware Special Agent Boteler wanted to use the pipe bomb to blow up a ca r. He even instructed the agent on the most effective way to blow it up by pu tting 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 f elony offense.-10-

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 iden tical purposes. See United States v. Flinn , 18 F.3d 826, 829 (10th Cir. 1994). Section 2K2.1(b)(3) provides for a two-level enhanc ement 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 defend ant possessed or transferred a firearm, including a destructive device, with reaso n 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 enhanc ement 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 connectio n with a separate felony offense. The facts in any given case may warrant asentence enhancement under § 2K2.1(b)(3) and not § 2K2.1(b)(5). Because the pro visions 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 do uble counting.-11-

(3) Alleged Outrageous Governmental Conduct Eaton claims the government engaged in such outrage ous conduct that the district court should have disregarded the Sentenci ng 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 enhance s 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 pip e bombs and informed him that using them on a car was a felony simply to inc rease 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 age nt’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, 11084 “Outrageous governmental conduct” is the same conc ept as “sentencing

entrapment.” See United States v. Lacey , 86 F.3d 956, 963 & n.5 (10th Cir. 1996). -12- (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 E aton’s outrageous governmental conduct claim. (4) Apprendi Claim Eaton claims that because the jury did not make fac tual 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 monthsentence was not above the maximum term for the crime of conviction, Apprendiis not implicated. See United States v. Heckard, 238 F.3d 1222, 1235 (10th Cir. 2001) (holding that no Apprendierror exists when a defendant’s sentence falls bel ow 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)). T hus, Eaton’s claim is without merit.-13-

IV. CONCLUSION For the foregoing reasons, the district court is AFFIRMED

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