United States v. Shamonte Virgil

USCA11 Case: 23-14231 Document: 23-1 Date Filed: 07/29/2025 Page: 1 of 16

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-14231

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHAMONTE VIRGIL,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:23-cr-00006-MTT-CHW-1

____________________

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2 Opinion of the Court 23-14231

Before NEWSOM, GRANT, and ABUDU, Circuit Judges.

PER CURIAM:

Shamonte Virgil appeals his conviction and 70-month sen-

tence for being a felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1). On appeal, he raises three arguments. First, he con-

tends that 18 U.S.C. § 922(g)(1) is unconstitutional, both facially

and as applied to him. Second, he contends that his prior convic-

tions for possession of marijuana with intent to distribute under

Georgia law do not qualify as “controlled substance offenses” un-

der U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2(b). Third, he contends the

district court abused its discretion and imposed a substantively un-

reasonable sentence. After careful review, we conclude Virgil’s

first two challenges are foreclosed by precedent, and he has not

shown an abuse of discretion as to the third. Therefore, we affirm.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

In January 2023, a federal grand jury charged Virgil with one

count of knowingly possessing a firearm as a felon. He later pled

guilty without a plea agreement, and the district court accepted his

plea.

Before his sentencing, a probation officer prepared a presen-

tence investigation report (“PSI”), which summarized his offense

conduct, consistent with his guilty plea. On March 22, 2022, an

officer with the Bibb County Sheriff’s Office observed Virgil driv-

ing a car without a tag. When the officer attempted to stop the car,

Virgil continued to drive, crossed several streets, and pulled

through a gas station. The officer activated his sirens, and Virgil

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eventually stopped the car and jumped out, dropping a firearm in

the process. Virgil picked up the gun, put it in his pants, and ran

from the officer on foot. After a short chase, Virgil fell and dropped

the gun again. The firearm was loaded and was confirmed to be a

Ruger, Model: Security-9, 9mm semiautomatic handgun made in

Arizona, with a scratched off, unreadable serial number.

The officer searched Virgil’s car and located a small amount

of suspected marijuana and a digital scale. Virgil was charged in

state court with possession of a firearm by a convicted felon, crim-

inal use of an article with altered identification mark, knowingly

making a false statement pertaining to motor vehicle insurance,

and fleeing and attempting to elude. Virgil had twice been con-

victed in Georgia state court of felonies: first for possession of ma-

rijuana with intent to distribute in February 2015, and second for

possession of marijuana with intent to distribute in November

2018. After his indictment and arrest in this case, Virgil was re-

leased on bond and placed on pretrial supervision, with the condi-

tion that he submit to drug and alcohol testing. While on that su-

pervision, Virgil tested positive for marijuana on three occasions.

The probation officer calculated Virgil’s guidelines range us-

ing the 2023 Sentencing Guidelines. It first assigned Virgil a base

offense level of 24 under U.S.S.G. § 2K2.1(a)(2). Specifically, the

PSI concluded that Virgil’s February 2015 and November 2018 pos-

session of marijuana with intent to distribute crimes were both fel-

ony “controlled substance offenses” under the Guidelines, see

U.S.S.G. § 4B1.2(b), leading to an enhanced base offense level. The

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4 Opinion of the Court 23-14231

PSI then increased Virgil’s offense level by four because the firearm

had an obliterated serial number, see U.S.S.G. § 2K2.1(b)(4)(B). Fi-

nally, the PSI awarded Virgil a three-level reduction for acceptance

of responsibility, see U.S.S.G. § 3E1.1(a), (b). This led to a total of-

fense level of 25.

The PSI next calculated Virgil’s criminal history score to be

six, leading to a criminal history category of III under the Guide-

lines. The PSI gave Virgil one criminal history point for the 2014

marijuana possession case, two points for the 2018 marijuana pos-

session case, two points for a 2016 conviction for giving a false

name and date of birth to a law enforcement officer, and one point

for a 2012 theft conviction. Based on these calculations, the PSI

calculated Virgil to have a guideline imprisonment range of 70 to

87 months. It also noted that the maximum sentence for his con-

viction was 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2)

(2022). 1

Virgil objected to the PSI, arguing that he should not receive

an enhanced base offense level because his prior convictions for

possession of marijuana with intent to distribute did not qualify as

controlled substances under U.S.S.G. § 4B1.2(b). Specifically, he ar-

gued that Georgia’s statutory definition of marijuana at the time of

his convictions was categorically broader than the federal defini-

tion of marijuana at the time of his federal sentencing, and

1 Congress has since raised the maximum sentence for violating 18 U.S.C.

§ 922(g)(1). See 18 U.S.C. § 924(a)(8).

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therefore the prior convictions were not categorically “controlled

substance offenses.”

Virgil also moved for a downward variance or departure

from the guidelines range. He explained that he had a difficult up-

bringing and that his mother had tragically died in 2020. He also

noted that his first convictions occurred when he was very young

and that he, consequently, had trouble obtaining meaningful work.

He also explained that, while on pretrial release, he managed to

keep full-time employment and provide for his two young chil-

dren. It noted that his sincere change in behavior was mitigating

and showed that he had moved beyond his criminal history.

At sentencing, the court overruled Virgil’s objection to his

base offense level. It explained that, in its view, Virgil’s argument

was foreclosed by this Court’s precedent. It then asked the parties

for their positions about what would be a reasonable sentence.

Virgil argued that his conduct after his offense—before and

after his indictment—reflected a change in behavior and rehabilita-

tion. He explained that, after his first felony conviction, he had

struggled to get work and that it was not until after this offense that

he had secured steady employment. He noted that he had been

working hard and receiving raises until his recent lay off in a cor-

porate restructuring—though he expected to be re-employed soon.

He explained his new skills and his desire to contribute to society

in a way that he had not done previously. For these reasons, he

argued that a sentence between 70 and 87 months would be “ex-

cessive and greater than necessary to satisfy the concerns of

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6 Opinion of the Court 23-14231

[Section] 3553.” Virgil also personally addressed the court and ex-

plained that he had made mistakes, wanted to be “fully accounta-

ble,” and “should be held responsible” for those mistakes. He ex-

pressed that he was taking this opportunity to change course and

that this was a “shot to make it right.”

The government, on the other hand, noted Virgil’s history

of criminal activity and his three positive marijuana tests while on

pretrial release, including one that occurred shortly before sentenc-

ing. Without recommending a specific sentence, it argued these

facts showed that the court’s sentence needed to “get [Virgil] to a

place where he respects the law.”

The district court explained that it had considered the factors

in 18 U.S.C. § 3553(a) and had made “an individualized assessment

based on the facts of [the] case.” It noted that Virgil exhibited neg-

ative conduct since the offense including testing positive for mari-

juana, but that his work history “in the last few months” were “pos-

itive.” It thus concluded that, although a downward variance from

the guideline range was not appropriate, a sentence at the bottom

of the guideline range would be proper. Accordingly, it sentenced

Virgil to 70 months’ imprisonment, to be followed by three years

of supervised release.

After the court announced its decision, Virgil objected to the

procedural and substantive reasonableness of the sentence, based

on the previous objections. The district court allowed Virgil to self-

surrender at a later date and, after the hearing, entered a written

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judgment consistent with its statements at the hearing. Virgil ap-

pealed.

After Virgil filed his notice of appeal, this Court published an

opinion in United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024)

(“Dubois I”), which foreclosed some of the arguments Virgil makes

on appeal. However, the defendant in Dubois sought certiorari re-

view from the Supreme Court, and that Court granted the petition,

vacated this Court’s judgment, and remanded the case to this

Court “for further consideration in light of” United States v. Rahimi,

602 U.S. 680 (2024). Dubois v. United States, 145 S. Ct. 1041, 1042

(2025). We held Virgil’s appeal in abeyance until the resolution of

Dubois I on remand. In June 2025, this Court reinstated its prior

decision in Dubois I. United States v. Dubois, 139 F.4th 887, 894 (11th

Cir. 2025) (“Dubois II”). With the benefit of supplemental briefing

on Dubois II, we now turn to the issues Virgil raises on appeal.

II. STANDARDS OF REVIEW

We review the constitutionality of a statute de novo, but we

review a challenge to the constitutionality of a statute only for plain

error when a party raises the challenge for the first time on appeal.

United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010); see also

United States v. Utsick, 45 F.4th 1325, 1332 (11th Cir. 2022) (detailing

the test for plain-error review).

We follow a “two-step process” when reviewing a sentence.

United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016). First, we

review the sentence for procedural reasonableness. In doing so, we

determine “whether the district court committed any significant

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8 Opinion of the Court 23-14231

procedural error, such as miscalculating the advisory guideline

range, treating the Sentencing Guidelines as mandatory, failing to

consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the cho-

sen sentence.” Id. at 936. As part of this first step, we review de novo

the legal question of whether a prior conviction qualifies as a “con-

trolled substance offense” under the Sentencing Guidelines. United

States v. Bates, 960 F.3d 1278, 1293 (11th Cir. 2020). Second, we

review “whether the sentence is substantively reasonable in light

of the totality of the circumstances and the § 3553(a) factors.”

Trailer, 827 F.3d at 936.

“In reviewing the [substantive] reasonableness of a sentence,

we will not substitute our own judgment for that of the sentencing

court and we will affirm a sentence so long as the court’s decision

was ‘in the ballpark of permissible outcomes.’” United States v. But-

ler, 39 F.4th 1349, 1355 (11th Cir. 2022) (quoting United States v.

Rosales-Bruno, 789 F.3d 1249, 1257 (11th Cir. 2015) (Opinion of

E. Carnes, J.)). A party challenging a sentence as unreasonable

bears “the burden of establishing the sentence is unreasonable in

light of the record and the § 3553(a) factors.” United States v. Gon-

zalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

III. DISCUSSION

As we noted above, Virgil makes three arguments on appeal.

We address each in turn.

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A. Section 922(g) is Constitutional.

First, Virgil argues for the first time on appeal that his statute

of conviction, 18 U.S.C. § 922(g)(1), is unconstitutional under the

Second Amendment, both facially and as applied to him specifi-

cally. Dubois II forecloses this argument. There, we explained that

neither United States v. Rahimi, 602 U.S. 680 (2024), nor New York

State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), abrogated our

decision in United States v. Rozier, 598 F.3d 768 (11th Cir. 2010),

which held that Section 922(g)(1) is constitutional under the Sec-

ond Amendment. Dubois II, 139 F.4th at 893–94; see Rozier, 598 F.3d

at 771 (“[S]tatutory restrictions of firearm possession, such as

§ 922(g)(1), are a constitutional avenue to restrict the Second

Amendment right of certain classes of people. Rozier, by virtue of

his felony conviction, falls within such a class.”).

In his supplemental brief, Virgil argues that we are not com-

pelled to apply Rozier because it applies a pre-Bruen methodology.

However, we explicitly held in Dubois I and Dubois II that Rozier

was not so overruled or abrogated. See Dubois I, 94 F.4th at 1291–

93; Dubois II, 139 F.4th at 893–94. We are bound by those holdings,

even if Virgil thinks they are erroneous. See Dubois II, 139 F.4th at

892 (“‘[A] prior panel’s holding is binding on all subsequent panels

unless and until it is overruled or undermined to the point of abro-

gation by the Supreme Court or by this court sitting en banc.’”

(quoting In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015))).

At bottom, “[w]e require clearer instruction from the Su-

preme Court before we may reconsider the constitutionality of

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10 Opinion of the Court 23-14231

[S]ection 922(g)(1).” Id. at 894. Until then, we are bound by our

precedent to affirm on this issue.

B. The District Court did not err in applying the Sentencing

Guidelines.

Second, Virgil argues that, under Georgia law, his convic-

tions for possession of marijuana with intent to distribute are not

controlled substance offenses. He contends that Georgia’s mariju-

ana offenses are “overbroad in three ways.” First, he contends

Georgia’s definition of marijuana includes all plants in the cannabis

genus, while the federal government’s definition is narrower and

only includes one species. Second, he argues that Georgia defines

marijuana to exclude only completely defoliated stalks, while the

federal government defines it to exclude all stalks. Third, he con-

tends that, at the time of his federal sentencing, the federal govern-

ment excluded hemp from its definition of marijuana, while Geor-

gia included it in its definition of marijuana.

First, we explained in Dubois I that “[a] drug regulated by

state law is a ‘controlled substance’ for state predicate offenses,

even if federal law does not regulate that drug.” 92 F.4th at 1296.

Accordingly, the fact that Georgia’s definition of marijuana was

broader than the federal definition—for example by including all

species and only excluding “defoliated stalks”—does not affect

whether the crime was a controlled substance offense under the

Guidelines. See id. at 1296–98. So long as marijuana was regulated

by state law, differences with the federal definition do not matter

for the purpose of the Guidelines under Dubois I. Id.

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In addition, Dubois I’s holding that courts must look to state

law at the time of conviction to determine what qualifies as a “con-

trolled substance offense” forecloses Virgil’s argument that his

Georgia marijuana convictions are categorically overbroad when

compared with federal law at the time of his sentencing. Id. at 1300.

Sensing the problem Dubois I poses to his appeal, Virgil ar-

gues that, in fact, Georgia law requires that a controlled substance

offense must involve a substance that is included in both the Geor-

gia and federal drug schedules. He points to a Georgia Court of

Appeals decision, C.W. v. Department of Human Services, 836 S.E.2d

836 (Ga. Ct. App. 2019), to support his position. However, C.W.

was decided several years before our decision in Dubois, which is

binding on us as a panel, and there is “no exception” to our prior

panel precedent rule “where the prior panel failed to consider ar-

guments raised before a later panel.” United States v. Gillis, 938 F.3d

1181, 1198 (11th Cir. 2019). In addition, the facts of Dubois I make

clear that Virgil’s argument about C.W. amounts to an argument

that Dubois I was wrongly decided. See id. In Dubois I, we held that

a Georgia conviction for possession with intent to distribute mari-

juana counted as a “controlled substance offense” under the guide-

lines because “Georgia law regulated marijuana . . . at the time of

[the defendant’s] 2013 conviction.” Dubois I, 94 F.4th at 1300. Vir-

gil’s argument that his Georgia marijuana convictions from the

same time period do not so qualify would necessarily mean that

Dubois I was wrong, and we cannot adopt such a rule. See Gillis,

938 F.3d at 1198.

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Moreover, and in any event, the Georgia Court of Appeals’

ruling in C.W. is not inconsistent with Dubois. Under Dubois, we

ask whether “the substance that [the defendant] trafficked is a ‘con-

trolled substance’ under the guidelines.” Id. at 1297 (emphasis

added). A drug can be excluded under a state’s definition of “con-

trolled substance”—for example Georgia’s definition of “controlled

substance,” which excludes marijuana—and still be considered a

“controlled substance” under U.S.S.G. § 4B1.2, which only requires

that “a drug [be] regulated by state law at the time of [his] convic-

tions.” Id. at 1300 (emphasis added). Here, marijuana was “regu-

lated” by Georgia state law at the time of Virgil’s convictions be-

cause, at that time, Georgia law criminalized the possession with

intent to distribute marijuana, and therefore Virgil’s convictions

were properly considered controlled substance offenses under the

Guidelines. See id.; see also United States v. Reid, No. 24-11000, 2025

WL 1649591, at *2 (11th Cir. Jun 11, 2025) (unpublished) (reaching

the same conclusion). 2

2 In his supplemental brief, Virgil argues that we need not follow Dubois I on

this issue because it “fails to consider controlling legal authority”—C.W. The

case he cites for that proposition does not hold that and, in fact, we have held

the opposite. See United States v. Lee, 886 F.3d 1161, 1163 n.3 (11th Cir. 2018)

(“It does not matter whether a prior case was wrongly decided, whether it

failed to consider certain critical issues or arguments, or whether it lacked ad-

equate legal analysis to support its conclusions.” (citations omitted)).

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C. Virgil has not shown that his 70-Month Sentence is Sub-

stantively Unreasonable.

In his final argument, Virgil argues that his 70-month sen-

tence is unreasonable. He highlights the rehabilitative steps he

took after his arrest and before the federal indictment, including

getting and maintaining a full-time job and attempting to comply

with his conditions of release. He contends he took full responsi-

bility for his offense conduct and began the steps necessary “to

leave the cycle of incarceration” behind him. He argues that the

district court should have given these facts more weight and that,

since his guidelines range should have been lower based on his

prior argument, his 70-month sentence was greater than necessary

under 18 U.S.C. § 3553(a).

Under § 3553(a), a district court must impose a sentence

“sufficient, but not greater than necessary,” to reflect the serious-

ness of the offense, to promote respect for the law, to provide just

punishment for the offense, to afford adequate deterrence, and to

protect the public from future crimes of the defendant. 18 U.S.C.

§ 3553(a). In addition, the court must consider, among other fac-

tors, the nature and circumstances of the offense, the history and

characteristics of the defendant, and the need to avoid unwarranted

sentence disparities among similarly situated defendants. Id.

“[W]e have identified three ways in which a district court

can abuse its discretion [and] impos[e] a substantively unreasona-

ble sentence: (1) failing to properly consider a relevant sentencing

factor that was due significant weight, (2) giving significant weight

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to a factor that was not relevant, or (3) committing a clear error of

judgment by weighing the sentencing factors unreasonably.” But-

ler, 39 F.4th at 1356; see also United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010) (en banc). In assessing the reasonableness of a sen-

tence, we “ordinarily expect a sentence within the Guidelines range

to be reasonable.” Gonzalez, 550 F.3d at 1324. For similar reasons,

a sentence imposed “well below” the statutory maximum also can

indicate reasonableness. Id.

Though the district court must consider all relevant

§ 3553(a) factors, “the weight given to each factor is committed to

the sound discretion of the district court,” and it may attach great

weight to one factor over the others. Butler, 39 F.4th at 1355. A

court’s “failure to discuss . . . ‘mitigating’ evidence” does not indi-

cate that the court “erroneously ‘ignored’ or failed to consider th[e]

evidence in determining [the defendant’s] sentence.” United States

v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). “Rather, a district

court’s acknowledgment that it has considered the § 3553(a) factors

and the parties’ arguments is sufficient.” Butler, 39 F.4th at 1355

(citing United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009)).

Virgil has not shown his sentence is unreasonable. First, his

70-month sentence was at the bottom of his guidelines range and

“well below” the statutory maximum 10-year sentence, indicators

of reasonableness. Gonzalez, 550 F.3d at 1324; 18 U.S.C. § 924(a)(2)

(2022). Second, the district court’s decision on how to weigh the

aggravating facts—i.e., the nature of Virgil’s offense and his post-

offense conduct—with the mitigating facts—i.e., his efforts to find

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and maintain employment after his arrest—does not amount to an

abuse of discretion. All of these factors were relevant to the appro-

priate sentence, see 18 U.S.C. § 3553(a), and the district court per-

missibly found one factor relevant in showing a variance was not

appropriate, and another factor relevant in showing a sentence at

the bottom of the guidelines range was appropriate, Amedeo,

487 F.3d at 833; Butler, 39 F.4th at 1355. 3 As we have explained, a

district court may even assign great weight to one factor without

abusing its discretion. Butler, 39 F.4th at 1355. Finally, the district

court explicitly considered Virgil’s arguments and provided ample

explanation for the weight it was giving them and why. See id.;

Sarras, 575 F.3d at 1219.

At bottom, our review of the record reveals neither “fail[ure]

to properly consider a relevant sentencing factor that was due sig-

nificant weight,” nor the “giving [of] significant weight to a factor

that was not relevant,” and we are not persuaded that the district

court “committ[ed] a clear error of judgment by weighing the sen-

tencing factors unreasonably.” Id. at 1356.

3 We do not minimize the steps toward rehabilitation that Virgil argues he has

begun, nor do we suggest they were irrelevant at sentencing. See 18 U.S.C.

§ 3553(a)(1) (directing a court to consider “the history and characteristics of

the defendant”); Concepcion v. United States, 597 U.S. 481, 486 (2022) (explaining

that a court considering the § 3553(a) factors should “consider[] the defendant

on that day, not on the date of his offense or the date of his conviction”). We

simply conclude that the district court’s weighing of these relevant mitigating

factors with the relevant aggravating factors was not an abuse of discretion.

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16 Opinion of the Court 23-14231

IV. CONCLUSION

For the reasons we have explained, Virgil’s first two argu-

ments are foreclosed by our precedent. As to his third, he has not

shown that his sentence falls outside “the ballpark of permissible

outcomes.” Butler, 39 F.4th at 1355. Accordingly, we affirm his

conviction and sentence.

AFFIRMED.