United States v. Mark Lundy ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0510n.06
Case No. 20-6323
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 09, 2021
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
)
Plaintiff-Appellee,
) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v.
) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
MARK A. LUNDY,
)
)
Defendant-Appellant.
) OPINION
Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges
NALBANDIAN, Circuit Judge. Although the Constitution guarantees an individual right
to keep and bear arms, Congress has identified certain individuals prohibited from possessing
firearms. One such individual is an unlawful user of any controlled substance. See 18 U.S.C.
§ 922(g)(3). Despite movements to decriminalize or legalize it on the state level, marijuana
remains a controlled substance at the federal level. And Mark Lundy is a user of marijuana.
A jury convicted Lundy of possessing firearms while being an unlawful user of marijuana,
possession of a controlled substance, and manufacturing a controlled substance. On appeal, Lundy
raises several challenges to his convictions and his sentence. For the following reasons, we
AFFIRM.
Case No. 20-6323, United States v. Lundy
I.
The Kentucky State Police (KSP) began investigating Lundy in May 2018 after receiving
a complaint from the Kentucky Department of Agriculture (KDA) that Lundy was growing
cannabis on his property.1 An undercover officer visited a cannabidiol (CBD) and hemp store
associated with Lundy and learned from a store clerk that Lundy was the hemp farmer supplying
the products to the store. But there was one key problem with Lundy’s status as a hemp farmer and
supplier: the KDA had denied Lundy’s application for a hemp license in 2017 because of his
criminal history involving marijuana and drug paraphernalia. And since Lundy could not grow or
process hemp, the KSP executed a search warrant on his property.
There were two searches. KSP officers searched in July 2018 and were later joined by
officers from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a second search
in September. In both searches, officers observed a large crop of cannabis plants in an outside
field, a smaller indoor grow of cannabis plants and growing equipment, and more than 200 pounds
of processed cannabis. Along with cannabis, officers also discovered firearms and drug
paraphernalia. Some firearms were locked in a safe, but others were loaded and sitting out by
doorways or on Lundy’s nightstand. Laboratory analysis later revealed dozens of plants and
thousands of grams of cannabis seized from the house contained high enough THC levels to be the
controlled substance marijuana.
1
At trial, there was some confusion about Lundy’s seemingly interchangeable usage of the words
“cannabis,” “marijuana,” and “hemp.” For our purposes: cannabis refers to the broad family of
plants that includes both marijuana and hemp. Hemp is a type of cannabis which contains 0.3%
THC or less. Plants that contain more THC are considered marijuana, which the Controlled
Substance Act lists as a Schedule I substance. See 21 U.S.C. § 802(16); 7 U.S.C. § 1639o(1); 21
C.F.R. § 1308.11(d)(23).
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During the July search, KSP Trooper Kevin Davis spoke to Lundy for several hours and
recorded the conversation. During the conversation, Lundy offered to smoke marijuana with Davis.
Lundy also emphasized to Davis that the marijuana at the residence was for personal use, and not
for sale.
After a state judge issued an arrest warrant, Lundy surrendered himself and agreed to a
recorded interview with an ATF agent and his attorney present. Lundy admitted to possessing the
marijuana, but repeatedly emphasized that the marijuana was for personal use and not to sell,
although he admitted to giving marijuana away. Lundy told the agent he had been using marijuana
since he was in his teens and admitted to smoking marijuana in the past few days. Lundy stated
that he grew both hemp and marijuana, but he knew which plants were “hot,” meaning they had a
THC level higher than .03%. (R. 101, Tr. Vol. 4, PID 881.) Lundy submitted hair and urine samples
that tested positive for marijuana.
A federal grand jury indicted Lundy. ATF and KSP officers then went to Lundy’s home to
arrest him. While checking to see if Lundy was home, officers observed two firearms, another
indoor cannabis grow set up, and suspected drug paraphernalia. Officers eventually arrested Lundy
later that day.
The grand jury superseded the indictment with new charges based on the evidence gathered
on the day of Lundy’s arrest. Lundy testified in his own defense, including a discussion on the
difference between marijuana and hemp. He testified that there was not a “whole lot of difference”
between smoking the two, but that smoking marijuana was “a little bit more intense.” (R. 102, Tr.
Vol. 5, PID 1136.) Lundy also explained that he was aware hemp and marijuana have different
THC levels, specifically that hemp “needed to be low,” meaning below .03%. (Id. at 1147.) He did
not dispute the Government’s reporting that 2,067 plants were on his property in 2018, he did not
3
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have a permit to grow hemp, and the guns and marijuana seized by the Government during their
searches were his. On the firearms, Lundy claimed that they were all for hunting and protecting
his farm from nuisance animals. On cross-examination, Lundy acknowledged that one of the
pistols he kept loaded in his nightstand was for self-protection.
The jury convicted Lundy on four of the six counts in the indictment. One count was
possessing firearms while being an unlawful user of marijuana. See 18 U.S.C. §§ 922(g)(3),
924(a)(2). The jury also convicted Lundy of possession of a controlled substance, see 21 U.S.C.
§ 844(a), and on two counts of manufacturing a controlled substance, see 21 U.S.C. § 841(a)(1),
(b)(1)(D). For Sentencing Guideline calculation purposes, Lundy was held accountable for
5,124.667 grams of marijuana and sixteen firearms. After grouping the counts, adjusting for
Guideline enhancements, and analyzing Lundy’s criminal history, the district court calculated a
Guideline imprisonment range of 46 to 57 months. The court sentenced Lundy to 46 months
imprisonment. Lundy moved for a judgment of acquittal, see Fed. R. Crim. P. 29, or alternatively
for a new trial, see Fed. R. Crim. P. 33. The district court denied his motion.
Lundy now raises several issues on appeal.
II.
Lundy contends that the evidence presented at trial was insufficient to support his
convictions and argues that the district court erred in refusing his proposed jury instruction. Lundy
also attacks § 922(g)(3) as being void for vagueness and claims the district court’s calculation of
his base offense level and two firearm-related enhancements were error.
A.
Lundy first argues that the district court erroneously denied his Rule 29 motion for acquittal
because of insufficient evidence. When we review whether the evidence was sufficient, our inquiry
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is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Ward, 957 F.3d 691, 695 (6th Cir. 2020) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). This inquiry draws “all reasonable inferences in favor of the government,” and
we will not conduct our own weighing of the evidence, credibility determination of witnesses, or
substitute our judgment for the jury’s. Id.Lundy’s challenge rests on two main arguments. First, that the Government failed to prove
that Lundy knew he was prohibited from possessing a firearm. And second, that the Government
failed to prove that Lundy knew he was possessing and manufacturing marijuana, a controlled
substance, and not hemp. Both arguments are unpersuasive.
We begin with whether the Government needed to prove that Lundy knew he was
prohibited from possessing a firearm. Section 18 U.S.C.§ 922(g) lists nine categories of individuals
for whom it is unlawful to possess firearms. And 18 U.S.C. § 924(a) adds that an individual with
a § 922(g) status who “knowingly violates” that provision shall be fined and imprisoned for up to
ten years. To convict Lundy, the Government first had to show that Lundy violated § 922(g)
because of his status as (1) “an unlawful user of . . . any controlled substance” (the status element)
who (2) “possess[ed] . . . [a] firearm” (the possession element). Id. § 922(g), (g)(3). Then, it had
to prove that Lundy “knowingly violate[d]” § 922(g). Id. § 924(a).
The Supreme Court addressed how the mens rea element of § 924(a) interacted with the
status element of § 922(g) in Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif, as an alien
illegally in the United States, was prohibited from possessing a firearm. See 18 U.S.C. § 922(g)(5).
After learning of his possession of firearms, the Government prosecuted him for violating
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Case No. 20-6323, United States v. Lundy
§ 922(g)(5) and § 924(a)(2). At trial, the judge instructed the jury (over Rehaif’s objection) that
the Government did not have to prove that Rehaif knew he was unlawfully in the United States.
The Supreme Court reversed, holding the word “knowingly” in § 924(a)(2) applied to the
status element of § 922(g). Rehaif, 139 S. Ct. at 2196. This meant that in prosecutions under 18
U.S.C. § 922(g) and § 924(a)(2), “the Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant category of persons barred from
possessing a firearm.” Id. at 2200.2 Notably, the jury instruction the Court rejected dealt with
Rehaif’s knowledge of his status, not his knowledge that he was prohibited from possessing a
firearm because of that status.
But here, Lundy argues that the Government had to prove that he knew he was prohibited
from possessing firearms, not just that he knew he was an unlawful user of a controlled substance.
In making that argument, Lundy asks us to extend Rehaif’s holding beyond its scope and contrary
to our precedent.
In United States v. Bowens, 938 F.3d 790 (6th Cir. 2019), cert. denied sub nom. Hope v.
United States, 140 S. Ct. 814 (2020), and cert. denied, 140 S. Ct. 2572 (2020), we faced a similar
question. Police arrested two defendants with marijuana and firearms and used Facebook and other
circumstantial evidence to prove that the defendants were habitual marijuana users. Because the
trial occurred before Rehaif, the district court did not include the defendants’ knowledge of their
status as unlawful drug users in the jury instruction. On appeal, the defendants, like Lundy, argued
that Rehaif required “that the Government prove each defendant knew he was prohibited from
2
The Supreme Court has since said that in felon-in-possession cases, see § 922(g)(1), the
Government must prove that the defendant knew of his status as a felon. See Greer v. United States,
141 S. Ct. 2090, 2095 (2021).
6
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possession [of a firearm] because he was an unlawful user of a controlled substance . . . in other
words he knew of his status as a prohibited person.” Bowens, 938 F.3d at 797 (quotations omitted).
We rejected that argument and instead interpreted Rehaif to say that “in a prosecution under
§ 922(g)(3), the Government arguably must prove that defendants knew they were unlawful users
of a controlled substance, but not, as defendants appear to argue, that they knew unlawful users of
controlled substances were prohibited from possessing firearms under federal law.” Id. We
reasoned that such a reading would clash with “the venerable maxim that ignorance of the law is
no excuse.” Id. And other circuits who have considered the same § 922(g) knowledge question
agree.3 Lundy’s interpretation of Rehaif is thus incorrect.
So to sustain a conviction for possession of a firearm by a user of controlled substances,
the Government must prove that “the defendant took drugs with regularity, over an extended period
of time, and contemporaneously with his purchase or possession of a firearm.” Bowens, 938 F.3d
at 793 (quoting United States v. Burchard, 580 F.3d 341, 350 (6th Cir. 2009)). And under Rehaif
and § 922(g)(3), the Government must prove that the defendant knew he possessed a firearm and
knew he was an unlawful user of drugs. See Kaspereit, 994 F.3d at 1208. Lundy does not contest
that he knew he possessed firearms, but he claims the Government failed to prove that he knew he
was an unlawful user of drugs because Lundy thought he was just using hemp.4 Indeed, Lundy
3
See United States v. Trevino, 989 F.3d 402, 405 (5th Cir. 2021) (“Our cases applying Rehaif have
not required the Government to prove knowledge of the statutory prohibition contained in
§ 922(g).”); United States v. Kaspereit, 994 F.3d 1202, 1208 (10th Cir. 2021) (“Rehaif does not
require that Defendant knew his status prohibited his possession of a firearm, just that he knew of
his status . . . .”); United States v. Maez, 960 F.3d 949, 954 (7th Cir. 2020) (same); United States
v. Singh, 979 F.3d 697, 727 (9th Cir. 2020) (same); United States v. Bryant, 976 F.3d 165, 172–73
(2d Cir. 2020) (same); United States v. Johnson, 981 F.3d 1171, 1189 (11th Cir. 2020) (same).
4
If Lundy is asserting that he did not know that he was prohibited from possessing a firearm, that
would be a mistake of law that is not a defense. And, as we note above, that’s not what Rehaif
holds. But if Lundy thought he was genuinely using hemp, and not marijuana, he perhaps did not
know his status as an unlawful user of controlled substances. Rehaif contemplated this situation
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asserts that there was no evidence of his knowing use of marijuana after February 2016. But, like
the district court, we reject that argument.
Here, the Government presented ample evidence from which the jury could conclude both
that Lundy was a regular user of controlled substances and that he knew it. The Government put
on evidence both of Lundy’s history of marijuana use throughout his life and during the time he
possessed firearms. The Government admitted clips of Lundy’s testimony from a 2015 state court
trial about using marijuana his entire adult life, testimony Lundy corroborated at trial. Lundy
testified he smokes pounds of marijuana a year. The Government found more than 5,000 grams of
marijuana at Lundy’s residence, equipment for growing marijuana, and various drug
paraphernalia. He admitted to a KSP officer that the marijuana at his residence was for personal
use, and not for sale. Lundy even offered to smoke marijuana with the officer. Lundy testified to
knowing which plants in his grow operation were “hot.” And his hair and urine samples all came
back positive for high levels of THC. All this evidence together was enough to show that Lundy
knowingly used marijuana with regularity, over a long period of time, and at the same time as his
possession of firearms. And considering the Government’s overwhelming evidence, it strains
credulity to believe Lundy’s claim that he did not know he was using marijuana. See Bowens, 938
F.3d at 797 (“[I]t borders on fantastical to suggest that defendants were unaware they were
smoking marijuana . . . .”). Thus, the district court properly denied Lundy’s Rule 29 motion for
judgment of acquittal.
by saying that the “mistake of law is no excuse” maxim does not apply when “a defendant ‘has a
mistaken impression concerning the legal effect of some collateral matter and that mistake results
in his misunderstanding the full significance of his conduct,’ thereby negating an element of the
offense.” 139 S. Ct. at 2198 (quoting 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(a),
at 575 (1986)). Knowledge of status under 922(g) and 924(a)(2) falls into this category, which the
Court called a “‘collateral’ question of law.” Id.
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Lundy alternatively submitted his Rule 29 motion for acquittal as a Rule 33 motion for a
new trial. Our review of a motion for a new trial is for an abuse of discretion. See id. at 796. But
Lundy used the same arguments in both his Rule 33 motion and his Rule 29 motion. The district
court properly analyzed Lundy’s arguments under the correct standards for both motions. After
examining the Government’s evidence, it is clear the district court’s ruling was not an abuse of
discretion. See id. (understanding the district court’s denial of Rule 29 and 33 motions “for the
same reasons” to mean the district court found the defendants’ evidentiary arguments weak and
therefore the weight of the evidence did not cut against the jury’s verdict).
B.
We now turn to Lundy’s challenge of the district court’s refusal of his proposed jury
instruction about his knowledge of his status. A district court’s refusal to submit a requested
instruction “is reversible only if that instruction is (1) a correct statement of the law, (2) not
substantially covered by the charge actually delivered to the jury, and (3) concerns a point so
important in the trial that the failure to give it substantially impairs the defendant’s defense.”
United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991).
The district court instructed the jury that to convict Lundy of possession of a firearm by an
unlawful user of marijuana under § 922(g)(2) and § 924(a)(2), it must find that the Government
proved, beyond a reasonable doubt, that “the defendant knew he was an unlawful user of
marijuana.” (R. 66, Jury Instrs., PID 229.)5 The district court defined an “unlawful user” of
marijuana as someone who “was engaged in a pattern of regular and repeated use of a controlled
substance during a period that reasonably covers the time a firearm was possessed.” (Id. at 230.)
5
The district court instructed the jury to consider whether the Government had also met this burden
of proof for the other elements of § 922(g)(3) but they are not at issue.
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The court then explained the difference between marijuana and hemp and discussed how to infer
a mental state. Part of this discussion included a statement that finding Lundy’s deliberate
ignorance that he was using marijuana was enough to find he knew he was using marijuana, but a
finding of carelessness, negligence, or foolishness was not.
Lundy requested a different instruction as to § 922(g). One of the elements Lundy would
have had the jury find proved by the Government beyond a reasonable doubt was that “[a]t the
time of the possession [of a firearm], the defendant knew of his alleged prohibited status.” (R. 56-
1, Def.’s Supp. Jury Instr., PID 203.) Lundy’s proposed instruction also would have included an
element stating, “the defendant was a Prohibited Person.” (Id.)
Lundy contends that the district court’s refusal to submit his proposed jury instruction was
error because Rehaif “required” jury instructions that found the defendant was aware of his
prohibited status. (Appellant Br. at 21.) But it’s not clear exactly what Lundy’s dispute is with the
instruction that the district court gave. If Lundy is contending that the jury had to be instructed that
it needed to find that he knew he was an unlawful user of a controlled substance, the trial court’s
instruction did that. If Lundy is arguing that the Government needed to prove that he knew he was
an unlawful user of drugs who was prohibited from possessing a firearm, that, as explained above,
is an incorrect statement of the law.
Lundy cites United States v. Conley, 802 F. App’x 919 (6th Cir. 2020), which has no
application here. The trial in that case occurred before Rehaif, so the jury received no instruction
relating to the defendant’s knowledge of his status. See id. at 921. And the Government conceded
that such an omission conflicted with Rehaif and was a plain error. Id. at 923. That’s not this case.
Instead, the district court instructed the jury that the Government needed to prove that Lundy knew
he was an unlawful user of marijuana. That instruction was a correct statement of law.
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C.
Lundy next attacks § 922(g)(3) as being unconstitutionally vague. We review whether a
statute is unconstitutionally vague de novo. See Shuti v. Lynch, 828 F.3d 440, 445 (6th Cir. 2016).
A criminal law is unconstitutionally vague when it “fails to give ordinary people fair notice of the
conduct it punishes, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. United
States, 576 U.S. 591, 595 (2015). A law provides fair notice when it gives a “person of ordinary
intelligence a reasonable opportunity to know what is prohibited . . . .” Grayned v. City of Rockford,
408 U.S. 104, 108 (1972). For challenges to a statute that do not implicate the First Amendment,
the defendant bears the burden of establishing the statute’s vagueness as applied to his case; not
just that the statute could be interpreted as vague in a hypothetical situation. United States v.
Kernell, 667 F.3d 746, 750 (6th Cir. 2012).
Lundy asserts that § 922(g)(3) is vague because the statute does not require proof of a
temporal nexus between Lundy’s alleged use of a controlled substance and his stipulated
possession of a firearm. Lundy offers no support for why the statute is vague as applied to his
case.6 Instead, he provides a hypothetical of a person who possesses firearms in Kentucky, travels
to Colorado to use marijuana, and then returns as a person prohibited from possessing firearms.
Lundy argues that in a situation such as this, the lack of temporal nexus between unlawfully using
a controlled substance while possessing a firearm encourages arbitrary enforcement.
6
Lundy cites two cases he claims held that “the unlawful use of drugs must occur while the
defendant is the possessor of a firearm.” (Appellant Br. at 26.) But both cases say the opposite—
the Government does not need to show that the defendant possessed the firearms at the “exact
moment” that he was using or addicted to drugs. United States v. McIntosh, 23 F.3d 1454, 1458
(8th Cir. 1994); United States v. Corona, 849 F.2d 562, 567 (11th Cir. 1988), abrogated on other
grounds by Jaffee v. Redmond, 518 U.S. 1, 7 (1996). Instead, the Government must prove that the
defendant was an unlawful user “during the time he possessed firearms.” McIntosh, 23 F.3d at
1458.
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Lundy bears the burden of proving that § 922(g)(3) is unconstitutionally vague as applied
to his situation, not hypothetically. Lundy possessed, manufactured, and consumed marijuana
contemporaneously with his firearm possession. Lundy had firearms near his grow operation and
tested positive for marijuana just days after officers seized firearms and marijuana from his
residence. The evidence also established that Lundy was a lifelong marijuana enthusiast, both
before and during the time he possessed firearms. That pattern of behavior, combined with his
knowledge of marijuana laws that he testified to at trial, put him on notice that he was an unlawful
user of drugs under § 922(g)(3). We therefore find that the statute was not unconstitutionally vague
as applied to Lundy. Although we have not previously decided this issue, other circuits have, and
their analyses mirror ours.7 The district court was therefore correct in declining to enter a judgment
of acquittal based on the statute being void for vagueness.
D.
Finally, Lundy argues the district court erred in three aspects of his Sentencing Guidelines
calculations: determining his base offense level, applying the enhancement for having eight to
twenty-four firearms, and applying the enhancement for use of a firearm in connection with
another felony offense. We review sentencing decisions for reasonableness, applying an abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v.
7
See United States v. Cook, 970 F.3d 866, 874 (7th Cir. 2020) (finding that § 922(g)(3) was not
unconstitutionally vague as applied to a defendant possessing a firearm who “engaged in the
regular, non-prescribed use of a controlled substance.”); United States v. Augustin, 376 F.3d 135,
138 (3d Cir. 2004) (“Congress intended the statute to cover unlawful drug use at or about the time
of the possession of the firearm, with that drug use not remote in time or an isolated occurrence.”);
United States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005) (finding that the defendant’s regular
use of marijuana would lead an ordinary person to understand defendant was an unlawful user of
drugs while possessing a firearm); United States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001)
(holding that evidence the defendant smoked methamphetamine and marijuana
contemporaneously with his possession of a firearm put him on notice he fell within the statutory
definition of an “unlawful drug user.”).
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Booker, 543 U.S. 220, 261 (2005). We also give “due deference” to the district court’s application
of the Guidelines to specific facts. United States v. Abdalla, 972 F.3d 838, 850 (6th Cir. 2020).
Our review of reasonableness looks at both procedural and substantive components. A sentence is
procedurally unreasonable when the district court improperly calculates the Guidelines range,
treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, bases a sentence on
clearly erroneous facts, or fails to adequately explain its chosen sentence. Gall, 552 U.S. at 51.
Because Lundy’s sentencing challenges all focus on the district court’s Guidelines calculations, he
raises only the issue of procedural reasonableness.
Lundy’s base offense level was calculated as 14. See U.S.S.G. § 2K2.1(a)(6). Because the
offense involved eight to twenty-four firearms, the court added a four-level enhancement. See id.
§ 2K2.1(b)(1)(B). The court added another four-level enhancement because Lundy possessed a
firearm in connection with another felony offense, see id. § 2K2.1(b)(6)(B), bringing his adjusted
offense level to twenty-two. Lundy’s criminal history category was II, and when considered with
the offense level, the presentence report determined the Guideline imprisonment range to be 46 to
57 months imprisonment. The district court accepted the range and sentenced Lundy to 46 months,
the lowest end of the range.
Base Offense Level. Lundy argues his sentence is procedurally unreasonable because the
district court improperly calculated his base offense level. Lundy believes his base offense level
should have been calculated using U.S.S.G. § 2K2.1(b)(2), which states that a defendant who
“possessed all ammunition and firearms solely for lawful sporting purposes or collection” and did
not otherwise unlawfully use the firearms should have his base offense decreased to level six.
Whether Lundy used all his firearms and ammunition solely for sporting purposes is a
question of fact that we review for clear error. See United States v. Morrison, 983 F.2d 730, 732
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(6th Cir. 1993). Lundy bears the burden of proving, by a preponderance of the evidence, that all
his firearms and ammunition were used solely for sporting purposes. See id. at 732–33. To
determine whether the use was for “lawful sporting purposes or collection,” the relevant
circumstances include “the number and type of firearms, the amount and type of ammunition, the
location and circumstances of possession and actual use, the nature of the defendant’s criminal
history (e.g., prior convictions for offenses involving firearms), and the extent to which possession
was restricted by local law.” U.S.S.G. § 2K2.1 cmt. n.6.
The Government offered evidence at trial to the location of some of Lundy’s firearms.
Although some were locked in a safe, a loaded rifle was located by the door and a loaded pistol in
the nightstand. Lundy testified that he wouldn’t recommend hunting with the nine-millimeter Hi-
Point, located in the nightstand, and that it was for “self-protection.” (R. 102, Tr. Vol. 5, PID 1170,
1190.) Lundy also had a previous conviction of carrying a concealed deadly weapon from 2003.
Our court applies a narrow reading of “solely” in § 2K2.1(b)(2). See United States v.
Clingan, 254 F.3d 624, 626 (6th Cir. 2001). The district court considered the location of the
weapons, their proximity to the marijuana grow operation, Lundy’s criminal history, and relevant
caselaw. The court acknowledged that most of Lundy’s weapons were used for hunting and that
he was an avid hunter. But the location of the loaded weapons did not suggest hunting, and only
“the most negligent of target shooters would keep legitimate sporting firearms loaded in the home.”
United States v. Shell, 972 F.2d 548, 553 (5th Cir. 1992). We have held that a defendant did not
possess firearms “solely” for sporting purposes when the Government presented evidence that just
one of his guns was used for self-protection purposes. United States v. Kaplan, No. 93-1033, 1994
WL 12313, at *3–4 (6th Cir. Jan. 18, 1994) (per curiam). So the district court’s finding that Lundy
14
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did not meet his burden in proving his firearms and ammunitions were solely for sporting purposes
was not clear error.
Number of Firearms Enhancement. The Guidelines provide that offenses involving three
or more firearms have sentencing-level increases depending on the number of firearms present.
For offenses involving eight to twenty-four firearms, the increase is four levels. U.S.S.G.
§ 2K2.1(b)(1)(B). At sentencing, Lundy argued the “lawful sporting purposes” reduction in
§ 2K2.1(b)(2)’s provision supersedes the enhancement in § 2K2.1(b)(1)(B). Simply put, if his
firearms were all used for sporting purposes, Lundy would not have possessed eight to twenty-
four firearms as a matter of fact. But because the district court had overruled Lundy’s objection
about the sporting use exception when calculating his base offense level, it decided, and Lundy
agreed, that this objection could not succeed either.
On appeal, Lundy makes the same argument of the sporting use exception superseding the
§ 2K2.1(b)(1)(B) enhancement. He offers no authority as support for why the district court was
wrong in its determination or why we should reverse its decision. So he has failed to develop his
claim with argumentation or analysis and has thus forfeited the issue. See United States v.
Sandridge, 385 F.3d 1032, 1035–36 (6th Cir. 2004) (quoting Popovich v. Cuyahoga Cnty. Court
of Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002)) (“Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”). In any event,
Lundy runs into the sporting use exception problem again. Because we have already decided the
district court’s determination was not erroneous, Lundy’s superseding provisions argument is also
irrelevant here. The district court therefore did not err in ruling against Lundy’s objections and
holding him responsible for sixteen firearms.
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Firearm in Connection with a Felony Enhancement. The Guidelines provide that the base
offense should be increased by four levels if the defendant “used or possessed any firearm or
ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The
Government must prove a nexus between the firearms and the other felony offense. United States
v. Ennega, 263 F.3d 499, 503 (6th Cir. 2001). In interpreting the phrase “in connection with,” we
have concluded that a sufficient connection is established when it reasonably appears that firearms
on the premises are used to protect drugs. Id.Lundy argues that if the other felony offense that counts for the enhancement was
manufacturing a controlled substance, the Commentary in the Guidelines limited the enhancement
to apply only to drug-trafficking offenses. The relevant commentary provides that “Subsections
(b)(6)(B) and (c)(1) apply . . . in the case of a drug trafficking offense in which a firearm is found
in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”
U.S.S.G.§ 2K2.1 cmt. n.14(b). Nowhere in the Commentary does it say that drug trafficking is the
only drug offense that applies, just that Subsection (b)(6)(B) does apply to that offense specifically
when firearms are in close proximity. The district court was not persuaded that the Commentary
limited other drug felonies to only drug trafficking. The court also noted that in the Definitions
section, the Commentary provides that for Subsection (b)(6)(B) “another felony offense . . . means
any federal, state, or local offense, other than the explosive or firearms possession or trafficking
offense, punishable by imprisonment for a term exceeding one year, regardless of whether a
criminal charge was brought, or a conviction obtained.” Id. § 2K2.1 cmt. n.14(B) (emphasis
added). The court reasoned that even though Lundy was not charged with manufacturing of hemp
without a license, he admitted doing so. This was unlawful, see Ky. Rev. Stat. Ann. § 260.858,
and met the terms of Subsection (b)(6)(B). Because either the marijuana manufacturing or the
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Case No. 20-6323, United States v. Lundy
hemp manufacturing charges could qualify, the district court properly applied the four-level
enhancement for possessing his firearms in connection with another felony offense.
* * *
For these reasons, we AFFIRM the judgment of the district court.
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