Case: 23-50755       Document: 91-1      Page: 1     Date Filed: 01/10/2025




        United States Court of Appeals
             for the Fifth Circuit
                             ____________
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                               No. 23-50755
                             ____________                                FILED
                                                                  January 10, 2025
United States of America,                                           Lyle W. Cayce
                                                                         Clerk
                                                          Plaintiff—Appellee,

                                    versus

Eddie Lamont Bell,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                    for the Western District of Texas
                         USDC No. 7:23-CR-85-1
               ______________________________

Before Elrod, Chief Judge, and Dennis and Higginson, Circuit
Judges.
Jennifer Walker Elrod, Chief Judge:
       Eddie Lamont Bell pleaded guilty to a violation of 

(g)(1) after officers found him in possession of a firearm. On appeal,
Bell argues that § 922(g)(1) is facially unconstitutional under the Second
Amendment and the Commerce Clause. He concedes that these arguments
are foreclosed in this circuit. He also appeals his sentence, arguing that the
district court erred in (1) denying him an acceptance-of-responsibility
reduction under U.S.S.G. § 3E1.1 because he was involved in an altercation
with his cellmate before sentencing and (2) applying an elevated offense level
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                                    No. 23-50755


under U.S.S.G. § 2K2.1 because his offense involved a firearm capable of
accepting a large-capacity magazine. As Bell concedes, his constitutional
challenges to 

(g)(1) are foreclosed. However, because we
agree with Bell that his pre-sentencing conduct does not outweigh the
“significant evidence” of his acceptance of responsibility, we VACATE
Bell’s sentence and REMAND for resentencing.
                                         I
       In May 2023, Midland, Texas police officers responded to a fight and
shooting outside a local bar and found Eddie Lamont Bell asleep in the
driver’s seat of his vehicle. Officers observed a semiautomatic .40 caliber
Glock 27 pistol on top of his center console. Bell appeared intoxicated, and
after speaking with the officers, he admitted that he was a convicted felon.
       Police later inventoried Bell’s vehicle and discovered that the pistol
was loaded with a .40-caliber, 9-round magazine that contained 8 rounds of
ammunition.     They also found a .40-caliber, 29-round magazine that
contained 28 rounds of ammunition and 16 grams of cocaine in Bell’s driver’s
side door.
       A grand jury later returned a one-count indictment charging Bell with
unlawful possession of a firearm by a convicted felon, in violation of 

(g)(1). Bell pleaded guilty.
       After pleading guilty but before sentencing, Bell got into an altercation
with a fellow inmate, Hipolito Brito, at the correctional facility where they
were housed after Bell apparently asked Brito to stop loudly snoring. Video
surveillance of the cell captured the incident, although the cameras did not
record audio. The video shows Bell exit his bunk, tap Brito, and say
something to him. Bell returns to his bunk and lays down. Brito then sits up
in his bunk and says something to Bell across the cell. A few seconds later,
Bell and Brito meet in the middle of the cell, where the two exchange words.




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                                 No. 23-50755


Bell then points at Brito twice, and Brito pushes Bell’s hands away. Brito
then punches Bell in the face. Bell grabs a broom and continues to speak to
Brito, and then Brito strikes Bell’s head with a water cooler. Bell attempts to
punch Brito once, in the last seconds of the encounter. Eventually, detention
officers arrive and end the altercation. Bell was never disciplined by prison
authorities or criminally charged following the dispute.
       Before sentencing, probation officers prepared Bell’s presentence
investigation report and applied a base offense level of 26 pursuant to
U.S.S.G. § 2K2.1(a)(1).       Section 2K2.1(a)(1) applies, among other
requirements not relevant here, if the offense involved a semiautomatic
firearm that is capable of accepting a large-capacity magazine. The probation
officer determined that Bell’s firearm and 29-round magazine qualified under
the Guidelines for the elevated base offense level.
       Bell’s PSR did not recommend a downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. Although the PSR
acknowledged that Bell “accepts responsibility for his actions,” it
recommended that Bell did not qualify for the adjustment because he
“appear[ed] to be the aggressor in th[e] altercation” with Brito and thus
“failed to terminate or withdraw from criminal conduct.”
       Bell objected to the lack of a downward adjustment for acceptance of
responsibility.   The probation officer declined to alter the PSR,
acknowledging that although Brito “[threw] the first punch,” Bell was
nonetheless the aggressor and “did nothing to de-escalate the situation or
retreat from the altercation.” Bell renewed his objection at sentencing, and
the district court overruled the objection.
       The district court adopted the PSR as accurate and sentenced Bell to
115 months’ imprisonment, three years’ supervised release, and a $100
special assessment. Bell timely appealed.




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                                             II
        Bell appeals his conviction and sentence, raising three arguments.
First, he argues that the district court erred in denying him an acceptance-of-
responsibility reduction under U.S.S.G. § 3E1.1. Second, he argues that the
district court erred in applying the elevated base offense level found in
U.S.S.G. § 2K2.1(a)(1) for an offense involving a large-capacity magazine.
Third, he argues that his statute of conviction, 

(g)(1), is
facially unconstitutional because it violates his Second Amendment rights
and is an unconstitutional extension of Congress’s power under the
Commerce Clause.            Both parties agree that Bell’s third argument is
foreclosed. 1
        Bell contends that it was error to deny him an offense-level adjustment
under U.S.S.G. § 3E1.1 because the altercation with Brito does not negate his
demonstrated acceptance of responsibility.
        Both parties agree that Bell properly preserved this issue for appeal.
Accordingly, “[w]e review the district court’s legal interpretation of the
Sentencing Guidelines de novo and factual findings for clear error.” United
States v. Castillo, 

 (5th Cir. 2015). “A factual finding is
clearly erroneous only if, based on the entirety of the evidence, the reviewing
court is left with the definite and firm conviction that a mistake has been



        _____________________
    1
          We agree. Because Bell raises this argument for the first time on appeal, we review
it for plain error. United States v. Hildreth, 

 (5th Cir. 2024). We have
previously rejected preserved Second Amendment and Commerce Clause challenges to
§ 922(g)(1). United States v. Diaz, 

, 471–72 (5th Cir. 2024) (rejecting Second
Amendment challenge to § 922(g)(1)); United States v. Perryman, 

 (5th
Cir. 2020) (rejecting Commerce Clause challenge to § 922(g)(1)). Accordingly, Bell
cannot show plain error.




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                                  No. 23-50755


made.” United States v. Diaz, 

 (5th Cir. 2024) (quoting
United States v. Brooks, 

 (5th Cir. 2012)).
       The entry of a guilty plea prior to trial “combined with truthfully
admitting the conduct comprising the offense” constitutes “significant
evidence of acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.3; see also
United States v. Hinojosa-Almance, 

 (5th Cir. 2020).
However, such evidence “may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1
cmt. n.3.
       The Guidelines provide a non-exhaustive list of factors that
sentencing courts may use to determine whether to award the adjustment,
including:    (1) “truthfully admitting the conduct”; (2) “voluntary
termination or withdrawal from criminal conduct or associations”; and
(3) the “timeliness” of acceptance of responsibility. Id. cmt. n.1. In this case,
the district court concluded that Bell’s pre-sentencing altercation with Brito
was “a sign that [Bell] has failed to withdraw from criminal conduct.”
       Although cases are legion applying the “criminal conduct” factor, the
Guidelines do not define that phrase, and there is little guidance on what
qualifies as “criminal.” Nevertheless, “[n]ot every incident of wrongful
conduct” pre-sentencing “is a reflection of an individual’s failure to
demonstrate acceptance of responsibility as that term is defined in § 3E1.1.”
United States v. Cooper, 

 (8th Cir. 2021) (Kelly, J.,
concurring); see also 

 at 812–13 (citing cases awarding § 3E1.1 reductions to
defendants who participated in pre-sentencing altercations). Courts may
consider the “seriousness” of the defendant’s wrongful conduct under this
factor to determine whether it outweighs evidence of acceptance of
responsibility. See id. at 813.




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                                 No. 23-50755


       Bell’s PSR, which the district court adopted, reveals that Bell
admitted his involvement in the § 922(g)(1) offense and accepted
responsibility for his actions. This constitutes “significant evidence” of
Bell’s acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n.3.
       Bell’s pre-sentencing altercation does not negate this significant
evidence. As the video shows, Bell asked Brito to stop snoring and then
returned to his bunk, revealing that Bell harbored no violent intentions. Brito
then arose, spoke across the cell to Bell, and descended from his bunk,
advancing towards Bell. Brito later punched Bell in the face, escalating the
encounter. After Bell grabbed a broom, Brito hit Bell in the head with a water
cooler. Bell struck at Brito only once, during the final seconds of the
encounter before detention officers ended the altercation. Following the
incident, Bell was never disciplined by prison authorities or criminally
charged.
       An inmate who asks his cellmate to stop snoring can hardly be
described as an “aggressor” of criminal conduct when the cellmate later
escalates the encounter to physical violence. Indeed, Bell’s conduct is a far
cry from that of other defendants who initiated or participated in “assaults”
and other violent criminal conduct in the cases in which we and other circuit
courts have affirmed the denial of a § 3E1.1 adjustment. See, e.g., United
States v. Mendez-Becerra, 

, 240–41 (5th Cir. 2018) (affirming
denial of acceptance of responsibility where defendant “assault[ed] two
fellow inmates in a gang-related altercation”); United States v. Arteaga-Rios,

, 177–78 (5th Cir. 2019) (same where defendant
“participated in an assault on other inmates”); United States v. Finnesy, 

 (10th Cir. 2020) (same where defendant struck “the first
blow” on a fellow inmate and used a “shank”); United States v. Sellers, 

 (7th Cir. 2010) (same for a “violent, unprovoked” attack
during a card game in which the defendant “repeatedly punched the other



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                                    No. 23-50755


prisoner, attempted to slam his body on the ground, and chased him down
even as the victim tried to retreat”); United States v. Prince, 

 (10th Cir. 2000) (same where defendant “stabbed a fellow prisoner”).
       Further, Bell’s decision to return force appears to have been made in
self-defense, which would negate the criminality of his conduct. See United
States v. Santiago, 

 (5th Cir. 2024). In Santiago, for
example, we held that the district court clearly erred when it applied a murder
cross reference pursuant to U.S.S.G. § 2K2.1(c) without considering self-
defense. Id. at 850. A video of the encounter revealed that the defendant’s
reaction “very well might have been self-defense” because his assailants
tried to rob him with guns drawn. Id. We explained that self-defense would
“negate[] the elements of criminal behavior” and render the cross reference
improper. Id. at 849–50 (alteration adopted) (citation omitted). The same
can be said here, where Bell returned to his bunk at the beginning of the video,
only punched Brito after Brito struck him twice, and was being held a cell
with a handful of other prisoners, whose allegiance in the dispute was
unknown, and officers had not yet arrived to end the encounter.
       Because Bell did not initiate violence and appears to have acted in self-
defense, his conduct does not outweigh the “significant evidence” of his
acceptance of responsibility. Accordingly, the district court erred in denying
Bell an acceptance-of-responsibility adjustment pursuant to U.S.S.G.
§ 3E1.1.
                                *        *         *
       We therefore VACATE Bell’s sentence, and REMAND for
resentencing. Because we vacate Bell’s sentence on this basis, we do not
address Bell’s remaining challenge to the district court’s sentence regarding




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                                     No. 23-50755


the application of the elevated base offense level pursuant to § 2K2.1(a)(1). 2
See United States v. Broussard, 

 (5th Cir. 2012).




        _____________________
    2
        We note only that the standards contained in United States v. Luna-Gonzalez, 

 (5th Cir. 2022), constitute the law of this circuit on U.S.S.G. § 2K2.1. Under
Luna-Gonzalez, the government bears the burden to show that the magazine and firearm
are “compatible.” Id. at 480. In other words, they must “actually fit.” Id. at 481.




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