Appellate Case: 24-7011 Document: 59-1 Date Filed: 07/11/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7011 (D.C. No. 6:21-CR-00174-JFH-1) KALUP ALLEN BORN, (E.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges. _________________________________
Under the Sentencing Guidelines, a criminal defendant may receive a two-
point offense level reduction when he accepts responsibility for his offense. This
reduction rewards those who take full responsibility, so a defendant must clearly
demonstrate he does so solemnly.
The Sentencing Guidelines also provide the district court discretion to depart
from an applicable Guideline range for aggravating or mitigating circumstances for
which the Guidelines do not adequately account. In these unusual cases, the
sentencing court may depart from the prescribed sentencing range.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-7011 Document: 59-1 Date Filed: 07/11/2025 Page: 2
Here, Defendant Kalup Allen Born seeks vacatur of his 121-month sentence,
arguing that the district court erred in denying him an acceptance of responsibility
offense-level reduction and abused its discretion in applying a one-level upward
departure. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm on both issues.
I.
In December 2020, the Pontotoc Country Justice Center in Ada, Oklahoma
incarcerated Defendant in its segregated disciplinary pod. Other inmates knew B.J.,
another prisoner in the pod, as mouthy and disrespectful. Inmates in this pod get one
recreation hour outside of their cell three times a week. Only one inmate at a time
may leave his cell to use his recreation time.
On December 14, 2020, B.J. spent one of his recreation hours meandering in
and out of the shower and attempting to flood the pod. B.J. also “bark[ed] something
at the [prison] camera,” “flipped somebody off,” and walked around the pod naked.
Towards the end of his hour, an officer ordered B.J. back to his cell several times,
and B.J. refused to comply. When the officer believed that B.J. finally returned to
his cell, the officer allowed Defendant to start his recreation hour. Unfortunately,
B.J. was still in the shower. When Defendant saw B.J. and asked what he was doing,
B.J. yelled at him: “Fuck you, this is—I run this pod, I am God in this place, you
can’t do shit. You are a bitch anyways. I can do whatever . . . .” B.J. repeated that
“he was God” and continued “saying . . . [Defendant’s] punk ass [couldn]’t do
anything anyways.”
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Defendant became very angry, felt like B.J.’s words were “a slap in the face,”
and believed that he needed to respond. According to Defendant, if “everybody in
the jail sees that [interaction] and you don’t do nothing,” it would “be bad for you.”
So when B.J. left the shower and walked towards the pod’s common area, Defendant
walked up behind B.J. and sucker punched him. B.J. fell to the ground, and
Defendant stomped on the back of B.J.’s head until he lost consciousness. Video
footage shows Defendant stomped on B.J.’s head twenty-seven times, and that at
various points Defendant walked away only to return and resume attacking him. As
B.J. laid face-down and unconscious on the floor, Defendant returned to his cell.
Five days later, B.J. died of the blunt-force head trauma.
A grand jury in the Eastern District of Oklahoma indicted Defendant for first
degree murder in violation of 18 U.S.C. §§ 1111(a), 1151, and 1153. At trial,
Defendant testified that he felt like he needed to respond to B.J.’s comments, that he
“wasn’t thinking,” that he “lost control” and that he “wish[ed] it never would have
happened.” During closing arguments, defense counsel implored the jury to consider
the jailhouse dynamics that drove Defendant to react instinctually, and to find
Defendant “guilty of voluntary manslaughter” rather than first-degree murder, as his
attack happened “in the heat of passion.” The jury agreed, convicting Defendant of
the lesser-included offense of voluntary manslaughter in violation of 18 U.S.C.
§§ 1112, 1151, and 1153.
The district court held a consolidated sentencing hearing and sentenced
Defendant for voluntary manslaughter and for his offenses in two other cases. The
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Final Presentence Report, adopted by the court during sentencing, calculated a total
offense level of 29. When combined with a criminal history category of III,
Defendant’s Guideline sentence for his manslaughter conviction ranged from 108 to
135 months. The parties discussed two issues related to his voluntary manslaughter
sentence: first, whether the court should reduce Defendant’s offense level under
U.S.S.G. § 3E1.1 for accepting responsibility, and second, whether the court should
grant the government’s motion for an upward departure based on extreme conduct
under § 5K2.8.
After reviewing the parties’ arguments, the district court denied Defendant an
acceptance of responsibility reduction. The district court also found that Defendant’s
conduct was “unusually cruel, heinous, brutal, and degrading to the victim,” and
departed upward one offense-level. Based on Defendant’s updated total offense level
and his criminal history category, his guideline sentence ranged from 121 to 151
months. The district court ultimately sentenced him to 121 months for manslaughter
and a total of 608 months’ imprisonment for all three cases.
On appeal, Defendant argues that the district court erred when it did not grant
him a reduction for acceptance of responsibility and when it applied a one-level
upward departure for extreme conduct. We address each issue in turn.
II.
Defendant first contends that the district court erred by denying him a
two-point acceptance of responsibility reduction under U.S.S.G. § 3E1.1 because he
“admitted he caused the victim’s significant injuries and death” and challenged only
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the malice and premeditation elements of his first-degree murder charge. [ROA
Vol. 2 at 60.]
We review the district court’s acceptance of responsibility determination for
clear error. United States v. Smith, 100 F.4th 1244, 1250 (10th Cir. 2024) (citing
United States v. Amos, 984 F.2d 1067, 1071 (10th Cir. 1993)). The sentencing court
“is uniquely positioned to evaluate each defendant’s acceptance of responsibility,” so
we give its determination great deference. Id. (citing U.S.S.G. § 3E1.1, comment.,
n.5). For this reason, unless that determination “is without foundation,” we will not
disturb a district court’s acceptance of responsibility ruling. Id. (quoting United
States v. Lindsay, 184 F.3d 1138, 1143 (10th Cir. 1999)).
Under § 3E1.1(a), a criminal defendant must “clearly demonstrate[] acceptance
of responsibility for his offense” to be eligible for an offense-level reduction. If he
can prove his “recognition and affirmative acceptance of personal responsibility for
his criminal conduct,” the sentencing court should “decrease the offense level by
2 levels.” United States v. McAlpine, 32 F.3d 484, 489 (10th Cir.), cert. denied,
513 U.S. 1031 (1994) (quoting U.S.S.G § 3E1.1(a)). Although going to trial “does
not automatically preclude a defendant from consideration for such a reduction,” the
acceptance of responsibility guideline was generally “not intended to apply to a
defendant that puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” § 3E1.1 cmt. n.2; see also Smith, 100 F.4th at 1251.
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We have affirmed the grant of a reduction similar to the one Defendant seeks
in United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999). In Gauvin, the defendant
“admitted to all the conduct with which he was charged”—assault with a dangerous
weapon and assault of a federal officer—and simply disputed whether “his
drunkenness [at the time of the offense] rendered him incapable of forming the
requisite mens rea.” Id. at 806. Although the jury ultimately disagreed with the
defendant, finding that he had the requisite mental state, the district court held that
the defendant’s conduct demonstrated acceptance of responsibility and that he
understood the seriousness of his crime, and that he accepted responsibility for his
role in the offense. Id. The Gauvin panel stated that although it “might not have
reached the same decision” as the district court, “in light of the deference afforded
the sentencing judge,” the district court did not err in granting a downward departure
for acceptance of responsibility. Id.
We have likewise affirmed in United States v. Collins the denial of a reduction
similar to the one Defendant seeks. 511 F.3d 1276 (10th Cir. 2008). In Collins, the
district court denied an acceptance of responsibility reduction to a defendant who
went to trial and argued for conviction on a lesser-included drug offense. Id. at 1281.
The Collins defendant, after being stopped by officers, denied his knowledge of the
drugs he possessed, attempted to flee from the officers, and accused the officers of
planting the drugs on him. Id. at 1280. The defendant, charged with possession of
cocaine and marijuana with intent to distribute, offered to plead guilty to the lesser
offense of simple possession after counsel “likely advised him that . . . the case
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against him was overwhelming.” Id. The government rejected his offer, and the case
proceeded to trial. Id. at 1278. A jury convicted defendant of simple possession, and
at sentencing, he argued for an acceptance of responsibility reduction because he
offered to plead guilty to the offense for which he was ultimately convicted. Id.
at 1279. Considering these facts, the district court concluded the defendant did not
deserve a reduction. Id. We observed that the district court could have reasonably
concluded that the defendant’s admissions at trial establishing the lesser-included
offense “were strategic, rather than evidence of true acceptance of responsibility.”
Id. at 1280–81. We also emphasized how our clear error review could result in
seemingly inconsistent results in cases where a district court granted the acceptance
of responsibility reduction, like Gauvin, compared to cases, like Collins, where the
district court chose to deny the reduction based on similar facts. Id. at 1280.
Here, like in Collins, the district court denied Defendant a § 3E1.1 acceptance
of responsibility reduction. Although acknowledging that Defendant exhibited some
expressions of remorse at trial, and that “[g]oing to trial does not automatically
preclude a defendant from [the benefits of] acceptance of responsibility,” the district
court relied on § 3E1.1’s Application Notes 1 and 2 in finding Defendant failed to
clearly demonstrate that he accepted responsibility. Specifically, the district court
found that Defendant continued to engage in violent conduct. It noted that under
Application Note 1, courts can consider “voluntary termination or withdrawal from
criminal conduct or association” and “post-offense rehabilitative efforts” in analyzing
whether to apply § 3E.1.1. It found that:
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[t]here is no evidence of either of those in this situation. Quite the opposite. Defendant incurred further charges for violent conduct after this case— conduct that involved jail contraband as well as violence—and he has not brought to the Court’s attention any sort of attempt at rehabilitation. Rather, in Case Number 23-CR-150—offense conduct on April 24, 2023— the Defendant pled guilty to assault with a dangerous weapon with intent to do bodily harm and to possessing contraband in prison after using a metal shank to stab another inmate at least seven times in the head and neck. The district court also considered Application Note 2 which states, “[t]his
adjustment is not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” It found that here,
“Defendant was found guilty of voluntary manslaughter[,] a lesser included offense
of the first-degree murder charged in the indictment. He challenged both the factual
element of intent and the factual element of malice aforethought.”
On appeal, Defendant now argues that because he admitted to the offense of
which he was convicted, we should look to Gauvin. He contends he is “far more
deserving of the deduction than the defendant in Gauvin” because that defendant did
not admit all the elements of his convicted offense, whereas “his counsel specifically
implored the jury to convict [Defendant] of voluntary manslaughter.” In his eyes,
“[n]ot granting [him] a deduction . . . penaliz[es] a person who goes to trial and has
the jury agree that a lesser offense is warranted.”
In essence, Defendant urges us to depart from our established manner of
reviewing these cases and to apply § 3E1.1 more mechanically—such that if a
defendant accepts the elements required for the offense of conviction, the district
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court commits clear error in denying him an acceptance of responsibility reduction.
But our established body of caselaw requires that we give district courts “great
deference” in making this factual determination. Smith, 100 F.4th at 1250.
Accordingly, we cannot conclude that Defendant admitting all voluntary
manslaughter elements necessarily entitled him to the acceptance of responsibility
reduction. See id.
The district court determines whether a defendant “clearly demonstrates
acceptance of responsibility for his offense,” basing its conclusion on several factors
including whether the defendant has voluntarily terminated his criminal conduct and
whether he has made post-offense rehabilitative efforts. § 3E1.1, Application Note
cmt n.1. The district court expressly found that neither factor supported an
acceptance of responsibility reduction because he continued to engage in criminal
activity. Because the district court’s inquiry is fact-intensive, we reverse only for
clear error and “the judgment of the district court on this issue is nearly always
sustained.” United States v. March, 999 F.2d 456, 463 (10th Cir. 1993) (quoting
United States v. Whitehead, 912 F.2d 448, 451 (10th Cir. 1990)). Given the district
court’s factual findings, it did not clearly err in denying Defendant an acceptance of
responsibility reduction.
We also reject the Defendant’s argument that the district court denied the
acceptance-of-responsibility reduction based on a legal error. Defendant argues that
the court mistakenly considered the Defendant’s challenge to the conviction with
which he was charged (first-degree murder) rather than the offense of conviction
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(voluntary manslaughter). For this argument, Defendant points to the Guideline
commentary, which refers to acceptance of responsibility for the “offense of
conviction,” not for the charged offense. See § 3E1.1 comment. n.1. But it is not
clear that the court relied on Defendant’s challenge to the first-degree murder charge
to deny the acceptance-of-responsibility reduction. Before mentioning the
Defendant’s challenge to the first-degree murder charge, the district court explained
that it was relying on the absence of evidence that Defendant had voluntarily
withdrawn from the crime or engaged in rehabilitative efforts after committing the
offense. Even if we assume for the sake of argument that the district court cannot
deny an acceptance of responsibility adjustment when the defendant challenges a
charge that results in an acquittal, the record is ambiguous on whether the court relied
on Defendant’s challenge to the first-degree murder charge, rather than the other
factors mentioned, to deny the acceptance of responsibility reduction. When the
record is ambiguous about the grounds for a ruling, we cannot presume a legal error.
See United States v. Nacchio, 555 F.3d 1234, 1242 (10th Cir. 2009). (“When a
district court’s language is ambiguous . . . it is improper for the court of appeals to
presume that the lower court reached an incorrect legal conclusion.”) (quoting
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 386 (2008)).
In sum, the district court found that Defendant had not clearly accepted
responsibility because he continued to engage in criminal conduct and failed to make
post-offense rehabilitative efforts. Given these findings, its determination about
whether Defendant accepted responsibility was not “without foundation” and,
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therefore, not clearly erroneous. Smith, 100 F.4th at 1250 (quoting Lindsay,
184 F.3d at 1143). The record, moreover, is ambiguous on whether the district court
denied the reduction because of these factual findings or because Defendant
challenged his first-degree murder charge. We thus affirm the district court’s
§ 3E1.1 ruling.
III.
Defendant next raises two challenges to the district court’s one-level upward
departure for extreme conduct pursuant to U.S.S.G. § 5K2.8. First, he argues that his
Guideline range adequately reflected his offense, and in deciding to depart the district
court unreasonably relied on considerations already accounted for by the Guidelines.
According to Defendant, “the conviction was a heat-of-passion voluntary
manslaughter,” so his conviction and its associated Guidelines already account for
“losing control” and engaging in violent behavior. He maintains that § 5K2.8 applies
only to “unusually” brutal offenses, and his was not unusual enough to merit a
departure. And second, he contends that the district court incorrectly found that
Defendant’s conduct humiliated B.J.
When a district court departs upward, we review a sentencing decision’s
reasonableness for an abuse of discretion. United States v. Huckins, 529 F.3d 1312,
1317 (10th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)); United
States v. Robertson, 568 F.3d 1203, 1211 (10th Cir. 2009) (quoting United States v.
Alapizco-Valenzuela, 546 F.3d 1208, 1215–16 (10th Cir. 2008)). “A district court
abuses its discretion when it renders a judgment that is arbitrary, capricious,
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whimsical, or manifestly unreasonable.” Huckins, 529 F.3d at 1317 (quoting United
States v. Muñoz–Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)). We review a district
court’s factual findings for clear error. United States v. Todd, 515 F.3d 1128, 1135
(10th Cir. 2008) (citing United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006);
United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993)).
Under § 5K2.8, a district court can increase a defendant’s sentence above the
Guideline range to reflect the nature of the defendant’s conduct if the defendant’s
conduct was “unusually heinous, cruel, brutal, or degrading to the victim.” Such
extreme conduct includes the “torture of a victim, gratuitous infliction of injury, or
prolonging of pain or humiliation.” § 5K2.8. When reviewing a district court’s
upward departure, like those imposed pursuant to § 5K2.8, we consider four factors:
“(1) whether the district court relied on permissible departure factors, (2) whether
those factors removed a defendant from the applicable Guidelines heartland,
(3) whether the record supports the district court’s factual bases for a departure, and
(4) whether the degree of departure is reasonable.” Robertson, 568 F.3d at 1211
(citing United States v. Munoz–Tello, 531 F.3d 1174, 1186 (10th Cir. 2008)). We
give substantial deference to a district court’s determination that the case before it is
atypical and therefore justifies a departure. United States v. Proffit, 304 F.3d 1001,
1011 (10th Cir. 2002) (quoting United States v. Collins, 122 F.3d 1297, 1303 (10th
Cir. 1997)). Defendant’s § 5K2.8 challenges concern the second and third factors, so
we do not address factors one and four.
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Defendant first argues that “losing control” does not distinguish his case from
other voluntary manslaughter cases because the voluntary manslaughter Guideline
already accounts for an offense committed “in the heat of passion where somebody
dies.” He argues that “[h]is losing control is what made the offense voluntary
manslaughter,” so the district court erred in considering his loss of control when it
decided to depart.
But Defendant’s loss of control is not the only fact that made his offense, in
the district court’s view, unusual. At sentencing, the district court found that
Defendant’s actions significantly differed from the norm because “[t]he video
surveillance of the homicide played during trial shows . . . Defendant prolonged the
victim’s pain by stomping on him over 27 times, punching the victim six times, and
continuing the assault after the victim stopped protecting himself, including
continuing to stomp on the victim’s head after he appeared lifeless.” The district
court concluded that this kind of “prolonged assault demonstrates a gratuitous
infliction of injury on a helpless, motionless victim.” The district court also found
that Defendant “taunt[ed] [B.J.] and mock[ed] him throughout the assault,” and later
decided to “act[] out the assault to other inmates.”
These findings illustrate that the district court did not abuse its discretion in
imposing a one-level upward departure. We have upheld a district court’s decision to
depart pursuant to § 5K2.8 where the district court made specific factual findings
demonstrating that the defendant’s conduct “was unusually brutal within the universe
of voluntary manslaughters.” United States v. Checora, 175 F.3d 782, 793 (10th Cir.
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1999) (affirming the district court’s departure determination but remanding for
further findings as to the extent of the departure because the court gave no principled
reason for departing upwards six levels). Here, the district court listed specific
factual considerations that made Defendant’s offense atypical: the number of times
Defendant stomped on B.J., the fact that Defendant punched B.J. several times while
stomping on him, the fact that B.J. appeared helpless and lifeless during the attack,
Defendant’s taunting and mocking attitude during the attack, and the fact that
Defendant later acted out the attack to other inmates.1 And although all voluntary
manslaughter cases necessarily involve a defendant “losing control” in the heat of
passion, the district court did not abuse its discretion in finding that Defendant’s
particular conduct went beyond the heat of passion normally exhibited in a
commonplace voluntary manslaughter case. Indeed, the district court specifically
stated so.
Defendant then contends that the district court erroneously found that his
attack humiliated B.J. Defendant argues this characterization “ignores all of B.J.’s
actions caught on surveillance video that immediately preceded the offense.”
[Opening Br. at 29.] B.J. “spent his entire hour of recreation time using the shower
to flood the floor” while “meander[ing] around, naked, yelling at the officer in the
1 Defendant does not dispute these facts; he disputes only whether these facts make his voluntary manslaughter atypical. And as explained below, Defendant disputes whether the attack humiliated B.J. considering B.J.’s conduct towards Defendant before the attack. But Defendant does not dispute the district court’s finding that his conduct during the attack involved mocking and taunting. 14 Appellate Case: 24-7011 Document: 59-1 Date Filed: 07/11/2025 Page: 15
tower,” “refus[ing] to go back to his cell,” “flip[ing] off the officer,” “hid[ing]
underneath the stairs,” and “curs[ing] at [Defendant].”
Although we do not rubber stamp the district court’s departure determination,
we recognize that district courts have an “institutional advantage” because they see
“so many more Guideline sentences than appellate courts do.” United States v.
Begaye, 635 F.3d 456, 465 (10th Cir. 2011) (quoting Gall, 552 U.S. at 52). Thus, we
give the district court’s discretionary decision that Defendant’s humiliation of B.J.
during the attack justified a departure substantial deference and detect no error. See
id. at 463–65. Even if, as Defendant argues, B.J.’s unseemly behavior right before to
the attack “negate[d] a belief that [Defendant’s] conduct caused B.J. any additional
humiliation,” § 5K2.8 focuses on whether Defendant’s offense was “unusually
heinous, cruel, brutal, or degrading to the victim.” See generally United States v.
Hanson, 264 F.3d 988, 998 (10th Cir. 2001) (affirming the district court’s decision to
impose an upward departure on Defendant’s sentence pursuant to § 5K2.8 regardless
of the victim’s characteristics). Examples of that conduct include, among other
things, “prolonging of pain or humiliation.” § 5K2.8. The district court found that
“Defendant tortured and degraded the victim,” apart from the physical beatings, by
“taunting him and mocking him throughout the assault.” Given these findings, even
if B.J. acted embarrassingly before the attack, the district court’s § 5K2.8 departure
was not arbitrary, capricious, whimsical, or manifestly unreasonable. Huckins, 529
F.3d at 1317 (quoting Muñoz–Nava, 524 F.3d at 1146).
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AFFIRMED.
Entered for the Court
Joel M. Carson III Circuit Judge