United States v. Dubois

94 F.4th 1284

UNITED STATES of America, Plaintiff-Appellee, v. Andre Michael DUBOIS, A.K.A. Larry Davis, A.K.A. Andre Dubois, Defendant-Appellant.

No. 22-10829

United States Court of Appeals, Eleventh Circuit

Filed: March 5, 2024

Appeal from the United States District Court for the Northern District of Georgia, D.C. Docket No. 1:20-cr-00305-WMR-JKL-1

Ryan Karim Buchanan, Gabriel Adam Mendel, Lawrence R. Sommerfeld, U.S. Attorney Service-Northern District of Georgia, DOJ-USAO, Northern District of Georgia, Atlanta, GA, Natasha S. Cooper, Office of the U.S. Trustee, Atlanta, GA, for Plaintiff-Appellee.

Nicole Kaplan, W. Matthew Dodge, Stephanie A. Kearns, Federal Defender Program, Atlanta, GA, for Defendant-Appellant.

Before William Pryor, Chief Judge, and Rosenbaum and Abudu, Circuit Judges.

William Pryor, Chief Judge:

This appeal by Andre Dubois, a federal prisoner, of his convictions and sentence for three federal firearm offenses requires us to answer five questions. First, did New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022), which held that the Second Amendment protects a right to bear arms outside the home, abrogate our precedent upholding the felon-in-possession ban? See 18 U.S.C. § 922(g)(1); United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010). Second, was there sufficient evidence from which a reasonable jury could find that Dubois knew that he possessed a firearm? Third, is Dubois's Georgia marijuana conviction a "controlled substance offense" under the Sentencing Guidelines? See United States Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (Nov. 2021). Fourth, does our precedent interpreting the guidelines' stolen-gun enhancement, see id. § 2K2.1(b)(4)(A), violate due process or intervening Supreme Court precedent? And fifth, did the district court plainly err by sentencing Dubois to pay a $25,000 fine without explanation? Because our precedent forecloses Dubois's challenges to the felon-in-possession statute and the stolen-gun enhancement; the evidence could permit a reasonable jury to convict him on all counts; his marijuana conviction is a controlled substance offense; and unchallenged evidence proves that he can afford his fine, we affirm Dubois's convictions and sentence.

I. BACKGROUND

In 2018, Andre Dubois entered an Express Copy Print & Ship store in Suwanee, Georgia, and attempted to ship a box containing firearms to the Commonwealth of Dominica. Federal officials seized the shipment and charged Dubois with three counts: attempting to smuggle firearms out of the United States, see 18 U.S.C. § 554; delivering firearms to a common carrier for shipment without written notice, see id. § 922(e); and possessing a firearm as a felon, see id. § 922(g)(1). The only factual dispute at trial was whether Dubois knew that the box he tried to ship contained firearms—an element of all three charges. Dubois stipulated that he was the customer who delivered the package and that he knew that he was a felon when he did so.

At trial, the prosecution presented evidence that on April 23, 2018, a car parked outside the ship store. Dubois exited the passenger side and walked into the store carrying a large, sealed box on his shoulder. Jeffrey Morris was working the front desk. Morris asked Dubois to state his name, phone number, and return address; the recipient's name, phone number, and shipping address; and the contents of the package. Dubois said that his name was "Larry Davis" and provided a Georgia return address and New York phone number. He said that the recipient's name was "Monette Paul" and provided a Dominica shipping address and phone number. And he said that the package contained two frying pans.

Dubois behaved strangely during the transaction. Dubois read some of the information that he gave Morris from a piece of paper that he had pulled from his pocket. And he made or took three phone calls during his brief exchange with Morris to "double check" the information he provided. When Morris tried to verify the return address using the store's online database, it came back as an "unknown" address. Because this notification sometimes appeared for new addresses not yet programmed in the database, Morris asked Dubois whether his address was new. Dubois replied, "it's a newer address." Morris testified that he asked Dubois twice whether the information that he provided was accurate, and both times Dubois said that it was. Morris also specifically asked Dubois whether, "if [he] opened the box, there would be two frying pans in it." Dubois replied, "yes." And on the customer invoice—which Dubois signed "Larry Davis"—Dubois certified that his shipment complied with federal law, that the information he provided was "true and correct," and that "the contents of th[e] shipment [we]re as stated" on the invoice. Dubois paid for the shipment in cash before exiting the store.

Federal officials seized the package after a carrier employee identified a suspicious object during an x-ray screen. Officials discovered a loaded revolver, two disassembled pistols, and over 400 bullets, all wrapped in aluminum foil and hidden in two individually packaged deep fryers. According to an investigator, firearm smugglers often try to evade detection by packaging firearms in this manner.

An investigation into the shipper's identity revealed that the information Dubois gave Morris was false. Agents began their investigation by looking for "Larry Davis," the listed sender, but they could not find anyone with that name associated with the listed address or phone number. Nor could agents locate "Monette Paul," the listed recipient. Finally, using the ship store's surveillance footage, agents identified Dubois as the shipper by tracing the logo on the shipper's sweatshirt to Dubois's former employer. An agent testified that "every shipper" he has encountered "who has attempted or successfully made an illegal export from the United States . . . provided false information on the shipping documents."

At the close of the prosecution's case, Dubois moved for acquittal on all counts. See Fed. R. Crim. P. 29(a). He argued that all three counts failed as a matter of law because the prosecution failed to introduce sufficient evidence that Dubois knew that the package that he attempted to ship contained firearms. And he argued that his section 922(g)(1) charge was unconstitutional because nonviolent felons maintain a Second Amendment right to possess firearms—though he acknowledged that "existing precedent" foreclosed this argument. The district court denied Dubois's motion, and the jury convicted him on all counts.

A probation officer prepared a presentence investigation report recommending an imprisonment range of 130 to 162 months and a fine range of $25,000 to $250,000 under the Sentencing Guidelines. The officer assigned Dubois a base offense level of 20 after concluding that Dubois's 2013 Georgia conviction for possession with intent to distribute marijuana was a "controlled substance offense." See U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(b). And the officer applied a two-level enhancement because one of the firearms that Dubois possessed had been reported as stolen. See id. § 2K2.1(b)(4)(A).

The presentence investigation report also described Dubois's "[f]inancial [c]ondition" and his "[a]bility to [p]ay" a fine. The report stated that the probation officer had requested "signed authorization forms and financial documents" from Dubois, but Dubois never provided this information. So the probation officer obtained Dubois's financial information by consulting public records, Dubois's bond report, and Dubois's pretrial services record. The officer calculated Dubois's net worth as exceeding $54,000 by subtracting his student loan debt and unpaid court fines from the value of a condo that he had inherited from his mother. And the officer found that Dubois had a monthly income exceeding $3,000. Last, the probation officer determined that Dubois was "able-bodied and could work while in custody to make minimal payments towards any fine the Court orders." Based on this information, the officer concluded that Dubois "ha[d] the ability to pay a fine within the fine guideline range" of $25,000 to $250,000.

Dubois objected to three parts of the presentence investigation report. First, he objected to the description of his offense conduct on the ground that "he is not guilty of the offense charged" because "the government did not prove that he knew what was in the box." Second, Dubois objected to the probation officer's application of an enhanced base offense level of 20 because his Georgia marijuana conviction does not qualify as a categorical controlled substance offense under the guidelines. Last, he objected to the stolen-gun enhancement on the ground that applying it "on a strict liability basis" violates due process and that its accompanying commentary "impermissibly expands" the guideline beyond its plain text. Dubois did not object to the probation officer's recommended fine range or to the finding that Dubois could afford a fine within that range. And aside from the description of his offense conduct, Dubois did not object to any of the factual findings in the report.

The district court overruled Dubois's objections and, on March 1, 2022, sentenced Dubois to a below-guideline prison sentence of 110 months and a low-end fine of $25,000. It did not provide reasoning for the fine amount during the sentencing hearing, but Dubois's counsel made no specific objection to the amount or to Dubois's ability to pay it. His counsel made only a general objection: "I'll object to the sentence as procedurally and substantively unreasonable and also object to the substantive reasonableness specifically of both the sentence and the fine."

Dubois appealed his convictions and sentence. While his appeal was pending, but before the parties filed their briefs, the Supreme Court decided in Bruen that "the Second and ...