United States v. Brooks

112 F.4th 937

UNITED STATES of America, Plaintiff-Appellee, v. Xavier Rashad BROOKS, Defendant-Appellant.

No. 22-11456

United States Court of Appeals, Eleventh Circuit

Filed: August 9, 2024

Appeal from the United States District Court for the Middle District of Georgia, D.C. Docket No. 7:21-cr-00001-HL-TQL-1

Michelle Lee Schieber, Stuart E. Walker, U.S. Attorney Service — Middle District of Georgia, DOJ-USAO, Macon, GA, for Plaintiff-Appellee.

Jessica M. Lee, Christina Lee Hunt, Federal Public Defender's Office, Macon, GA, for Defendant-Appellant.

Before Wilson, Grant, and Lagoa, Circuit Judges.

Lagoa, Circuit Judge:

Xavier Rashad Brooks, a felon, pled guilty to one count of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Following his guilty plea, the district court sentenced Brooks to 100-months imprisonment. Brooks appeals, arguing that the district court erred for three reasons. First, Brooks argues that the district court improperly determined that his base offense level was 26 under U.S.S.G. § 2K2.1(a)(1). Second, Brooks argues that the district court incorrectly applied a two-level enhancement to his offense level under U.S.S.G. § 2K2.1(b)(4)(A)—an enhancement that is applicable if a "firearm was stolen." Finally, Brooks argues that the district court incorrectly applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B)—an enhancement for defendants who "possessed any firearm ... in connection with another felony offense." After careful review, and with the benefit of oral argument, we affirm Brooks's sentence.

I. BACKGROUND

On October 12, 2020, a Remerton, Georgia police officer spotted a Lincoln Navigator believed to be related to a shooting in Valdosta, Georgia. The officer observed two males—Xavier Brooks and Alex Hollis —walk from a nearby apartment building and approach the Navigator. The officer spoke with Hollis, but Brooks stood behind a nearby Kia automobile and concealed his hands. The officer ordered Brooks to walk toward the officer and to show his hands, but Brooks ducked behind the Kia before complying with the officer's order. Additional law enforcement arrived and discovered a Glock pistol behind the Kia. The officers attempted to detain Brooks, but he ran from the scene.

The officers obtained an arrest warrant for Brooks based on his possession of the Glock as a felon. On October 15, 2020, law enforcement returned to the apartment building and arrested Brooks. On January 13, 2021, a federal grand jury indicted Brooks for one count of possession of a firearm by a felon under 18 U.S.C. § 922(g)(1).

Four days later, on January 17, 2021, officers stopped Brooks's vehicle in Valdosta, Georgia after Brooks failed to use a turn signal. Dispatch confirmed an outstanding warrant for the § 922(g)(1) charge and another warrant for obstruction under Georgia law. The officers detained Brooks, searched his vehicle, and discovered a stolen Smith & Wesson pistol under the driver's seat. The State of Georgia charged Brooks with theft by receiving stolen property, O.C.G.A. §§ 16-8-7, 16-8-12(a)(6)(B), based on the stolen Smith & Wesson pistol in his possession.

Brooks initially pled not guilty to the federal charge related to his possession of the Glock, but Brooks later changed his plea to guilty. In light of Brooks's guilty plea, a probation officer prepared a presentence investigation report ("PSI"), which recommended that Brooks receive a sentence of 108 to 120-months' imprisonment. The PSI started with a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1) because Brooks had two previous felony convictions for crimes of violence—a 2011 conviction for armed robbery, O.C.G.A. § 16-8-41, and a 2008 conviction for robbery, O.C.G.A. § 16-8-40. Next, the PSI recommended a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) because Brooks possessed a stolen firearm when he possessed the stolen Smith & Wesson. The PSI also recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Brooks possessed the stolen Smith & Wesson in connection with another felony offense, namely the Georgia felony of theft by receiving stolen property, O.C.G.A. §§ 16-8-7, 16-8-12(a)(6)(B). The proposed enhancements adjusted Brooks's offense level to 32.

The PSI then recommended that the district court reduce Brooks's offense level by three under U.S.S.G. § 3E1.1(a) and (b) because Brooks accepted responsibility and timely entered a guilty plea. This reduced Brooks's total offense level to 29. The PSI also determined that Brooks had a criminal history category of III. With a criminal history category of III and a total offense level of 29, Brooks's advisory sentencing range was 108 to 120-months' imprisonment.

Brooks objected to the PSI on three grounds. First, Brooks argued that the PSI improperly recommended a two-level enhancement under § 2K2.1(b)(4)(A) based on his possession of a stolen pistol. Brooks noted that he pled guilty to the § 922(g)(1) charge related to his October 2020 possession of the Glock and argued that the later possession of the stolen Smith & Wesson was not "relevant conduct" under U.S.S.G. § 1B1.3.

Second, Brooks argued that the PSI incorrectly recommended a four-level enhancement under § 2K2.1(b)(6)(B), which provides for a four-level enhancement if Brooks "possessed" a "firearm" "in connection with another felony offense." The PSI reasoned that Brooks possessed the stolen Smith & Wesson "in connection with another felony offense" because Georgia criminalizes theft by receiving stolen property, O.C.G.A. §§ 16-8-7, 16-8-12(a)(6)(B). Thus, by receiving and possessing the stolen Smith & Wesson, Brooks both possessed a firearm as a felon—in violation of federal law, § 922(g)(1)—and committed theft by receiving stolen property—in violation of Georgia law, O.C.G.A. §§ 16-8-7, 16-8-12(a)(6)(B). Brooks objected to this enhancement on two grounds. First, he reiterated that the possession of the stolen Smith & Wesson was not relevant to his § 922(g)(1) conviction because that conviction related to the Glock, which was not stolen, and that occurred three months earlier. Next, Brooks argued that he did not possess the stolen Smith & Wesson "in connection with" the theft-by-receiving offense. According to Brooks, he did not use the Smith & Wesson to facilitate the theft-by-receiving offense because the Smith & Wesson was itself the object of the theft. And because the Smith & Wesson did not facilitate the theft-by-receiving offense, Brooks argued that he did not possess the Smith & Wesson "in connection with another felony offense," § 2K2.1(b)(6)(B).

Third, Brooks argued that the PSI started with an incorrect base offense level. Brooks contended that his base offense level should be 22, rather than 26, because his 2008 conviction for robbery, O.C.G.A. § 16-8-40, did not qualify as a "crime of violence" under § 2K2.1(a)(1).

At sentencing, the district court overruled Brooks's objections and accepted the PSI as presented. However, the district court varied downward by two offense levels. The downward variance yielded a range of 87 to 108 months in prison, and the court sentenced Brooks to 100 months in prison. Brooks timely appealed.

II. STANDARD OF REVIEW

Generally, we review "a district court's sentencing-range calculation under an abuse-of-discretion standard." United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015). "A district court abuses its discretion if it applies an incorrect legal standard, follows improper procedures in making the determination, or makes findings of fact that are clearly erroneous." Id. (quoting United States v. Register, 678 F.3d 1262, 1266 (11th Cir. 2012)). Additionally, "[w]e review de novo whether a defendant's prior conviction qualifies as a 'crime of violence' under the Sentencing Guidelines." United States v. Harris, 586 F.3d 1283, 1284 (11th Cir. 2009). Finally, we review a district court's determination that an act qualifies as "relevant conduct" under U.S.S.G. § 1B1.3 for clear error. Siegelman, 786 F.3d at 1332.

III. ANALYSIS

On appeal, Brooks raises the same three objections that he raised to the district court. First, he argues that his base offense level is 22—rather than 26—under U.S.S.G. § 2K2.1(a) because his 2008 robbery conviction was not a conviction for a crime of violence. Second, he argues that his possession of a stolen pistol in January 2021 did not warrant a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A). Finally, he argues that a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was improper because he did not possess a firearm "in connection with" theft by receiving stolen property, O.C.G.A. §§ 16-8-7, 16-8-12(a)(6)(B).

A. The Base Offense Level Under U.S.S.G. § 2K2.1(a)(1)

Section 2K2.1 prescribes how courts should calculate the offense level for defendants who, like Brooks, are convicted under 18 U.S.C. § 922(g)(1). Of note to this case, section 2K2.1(a)(1) requires a base-offense level of 26 if:

(A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine ...; and

(B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.

(Emphasis added). The district court determined that a base offense level of 26 was appropriate under § 2K2.1(a)(1) because Brooks was previously convicted of two crimes of violence before he possessed the Glock in October 2020. Specifically, Brooks was convicted of armed robbery, O.C.G.A. § 16-8-41, in 2011 and robbery, O.C.G.A. § 16-8-40, in 2008. Brooks challenges the district court's conclusion on the grounds that his 2008 conviction for robbery, O.C.G.A. § 16-8-40, was not a conviction for a "crime of violence."

Section 4B1.2(a) defines the term "crime of violence," stating:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year,

...