United States v. Gabriel Brown

USCA11 Case: 23-13804 Document: 24-1 Date Filed: 08/07/2025 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13804

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL BROWN,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:23-cr-00007-MTT-CHW-1

____________________

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2 Opinion of the Court 23-13804

Before JORDAN, LUCK, and ED CARNES, Circuit Judges.

PER CURIAM:

In December 2021, someone fired eleven gunshots into Ga-

briel Brown’s house while Brown and some guests were inside. In

response Brown jumped out of his chair, grabbed a firearm, went

on his front porch, and saw the taillights of a car stopped at an in-

tersection in his manufactured home community. He believed the

shooter was in that car so he fired at least four gunshots at it. The

car sped away.

As a result of that conduct and the fact that Brown had pre-

viously been convicted of several Georgia felony cocaine offenses,

the government charged him with possessing a firearm as a felon,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He pleaded

guilty to that offense and was sentenced to 70 months imprison-

ment.

Brown now challenges his conviction and his sentence. He

contends that his conviction should be reversed because 18 U.S.C.

§ 922(g)(1) is unconstitutional. As for his sentence, he argues for

the first time on appeal that the district court plainly erred by treat-

ing his prior Georgia cocaine convictions as “controlled substance

offenses” under U.S.S.G. § 2K2.1(a)(3). He also contends that the

court clearly erred by enhancing his sentence under U.S.S.G. §

2K2.1(b)(6)(B) based on its finding that his uncharged conduct of

firing gunshots at the car amounted to aggravated assault.

I.

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23-13804 Opinion of the Court 3

A.

In December 2021, a grand jury charged Brown with posses-

sion of a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2). He pleaded guilty to that crime without a

written plea agreement. At his plea hearing, Brown stipulated to

the following facts:

Several minutes before midnight, a car ap-

proached [Brown’s] residence and someone fired gun-

shots in the direct[ion] of Brown’s living room . . . .

Brown leapt up from where he was seated, grabbed a

Taurus handgun, stepped out the front door and saw

what appeared to him to be the taillights of a Dodge

Charger waiting to turn at an intersection in the manu-

factured home community. Brown fired four or five

shots in the direction of the vehicle, then returned to

grab a second firearm, an AR pistol. By that time, the

Charger had turned left and driven away. . . .

Brown . . . acknowledged that he knew he was a

convicted felon and . . . that three of the firearms [found

in his residence] had been at his residence for approxi-

mately one year or longer.

Doc. 45 at 9, 10–11.

In response to the shooting one of Brown’s guests called 911,

which dispatched an ambulance and law enforcement officers to

the house. Brown admitted to one of the officers that he was a

convicted felon, and he turned over some firearms to the officers.

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4 Opinion of the Court 23-13804

The firearms that had been in Brown’s immediate possession in-

cluded one loaded Taurus 9mm caliber semi-automatic pistol (the

one he had used to fire shots at the car) and two fully loaded semi-

automatic pistols with rounds in the chambers. A few hours later,

law enforcement entered the house with a search warrant and

seized ammunition and a fourth semi-automatic pistol. Law en-

forcement also recovered eleven shell casings from the road, along

with pieces of red plastic taillight. Officers found four shell casings

on Brown’s front porch where he had stood and shot at the car. In

a later interview with law enforcement, Brown admitted that he

and his guests were drinking alcohol and smoking marijuana when

the shooting occurred, and that he had also been using cocaine.

B.

The Presentence Investigation Report (PSR) assigned Brown

a base offense level of 22 because: (1) he had possessed a semiauto-

matic firearm capable of accepting a large capacity magazine, and

(2) he had at least one prior “controlled substance offense.” See

U.S.S.G. § 2K2.1(a)(3). The PSR counted three prior “controlled

substance offenses.” In 2007, Brown was convicted in Georgia state

court of possession of cocaine and possession of less than one

ounce of marijuana. In 2009, he was convicted in Georgia state

court for selling cocaine. And later in 2009, Brown was again con-

victed in Georgia state court for selling cocaine.

The PSR also applied a four-level enhancement because

Brown had possessed the firearms in connection with other felony

offenses, which, according to the PSR, included the uncharged

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23-13804 Opinion of the Court 5

aggravated assault of firing four or five shots at the car in the inter-

section. See id. § 2K2.1(b)(6)(B).

1

Brown’s total offense level was 25. His criminal history cat-

egory was III. The PSR calculated his guidelines range as 70 to 87

months. His statutory maximum term of imprisonment was ten

years.

Brown did not object to the finding that he had prior “con-

trolled substance offenses” under § 2K2.1(a)(3). He did object to

the four-level enhancement for possession of a firearm in connec-

tion with another felony offense under § 2K2.1(b)(6)(B). Brown ad-

mitted that he shot at the car at least four times but argued that it

was in self-defense. He explained that when he fired the shots he

did not know how many people were shooting at his house, how

many guns were involved, and whether there were people on his

property. Brown was not charged with aggravated assault for his

actions that night. But he contended if he had been indicted for

aggravated assault in state court, he would have had an “absolute

defense” of self-defense.

The district court concluded that the four-level enhance-

ment under § 2K2.1(b)(6)(B) applied. The court found that, accord-

ing to the evidence, “there [was] no indication that [Brown] saw the

1

A two-level enhancement was applied under § 2K2.1(b)(1)(A) because the of-

fense involved at least three firearms and a three-level reduction because

Brown had accepted responsibility. Those guidelines calculations are unchal-

lenged.

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6 Opinion of the Court 23-13804

car when shots were fired” into his house. Nonetheless,

Brown “grabbed his weapon, went outside, and shot the first car he

saw.” The court accepted that Brown believed that the people who

shot into his house were in the car, but stated: “[W]e don’t know

that. And in any event, the car was at a — really off the premises

and was heading away from Mr. Brown and was at an intersection.”

The court concluded that Brown had committed aggravated

assault because it found that there was no imminent threat to

Brown or his guests when the car was sitting at the intersection

facing away from the house. Also, based on the stipulated facts,

the court stated, “while Mr. Brown’s inference might have [been]

thought to have been reasonable, you could argue that if the shots

were fired from the Dodge Charger, and the Dodge Charger was

fleeing, it wouldn’t be waiting at an intersection to turn. It would

be moving away as quickly as possible.” Based on all those facts,

the court found that Brown had not acted in self-defense, and over-

ruled Brown’s objection to the § 2K2.1(b)(6)(B) enhancement.

The court accepted the PSR’s calculation of a 70 to 87 month

guidelines range and sentenced Brown to the low end of that range,

70 months imprisonment to be followed by 3 years of supervised

release.

II.

A.

We first address Brown’s challenge to his conviction. He

contends that § 922(g)(1) violates the Second Amendment. In

United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), we held that §

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23-13804 Opinion of the Court 7

922(g)(1) is constitutional under the Second Amendment. See id. at

770–71. 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), abro-

gated that decision. See United States v. Dubois, 139 F.4th 887, 888–

89 (11th Cir. 2025). Brown’s argument that § 922(g)(1) is unconsti-

tutional is therefore foreclosed by our binding decisions in Dubois

and Rozier.

B.

We next address Brown’s challenges to his sentence. He first

argues that his 2007 and 2009 Georgia cocaine convictions don’t

qualify as “controlled substance offenses” under U.S.S.G.

§ 2K2.1(a)(3), because cocaine no longer fits the definition of a

“controlled substance offense” under Georgia law. See United States

v. Bishop, 940 F.3d 1242, 1253 (11th Cir. 2019). He didn’t raise that

issue in the district court, meaning that plain error review applies,

but his challenge would fail under any standard of review. See

United States v. Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015).

As Brown concedes, his cocaine convictions were controlled

substance offenses under state law at the time of his state convic-

tions. See O.C.G.A. § 16-13-26(1)(D) (2007); id. (2009). That con-

cession dooms his argument on this issue. Because Georgia state

law regulated cocaine as a “controlled substance” at the time of

Brown’s previous convictions, his convictions qualify as “controlled

substance offenses” under the sentencing guidelines. See United

States v. Dubois, 94 F.4th 1284, 1298, 1300 (11th Cir. 2024), vacated by

145 S. Ct. 1041 (2025), and reinstated by 139 F.4th 887 (11th Cir. 2025)

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8 Opinion of the Court 23-13804

(explaining that under U.S.S.G. § 2K2.1(a)(3) we determine whether

a drug offense qualifies as a “controlled substance offense” by look-

ing to whether the “substance [was] regulated by state law when

the defendant was convicted of the state drug offense, even if it is

no longer regulated when the defendant is sentenced for the federal

firearm offense”). The district court did not err, much less plainly

err, by correctly finding that Brown had previously been convicted

of felony “controlled substance offenses.”

C.

Brown’s last challenge is to his sentence enhancement under

U.S.S.G. § 2K2.1(b)(6)(B) for committing his underlying felon-in-

possession offense in connection with another (uncharged) felony

offense. We review de novo a district court’s interpretation of the

sentencing guidelines and its application of the guidelines to the

facts, and we review for clear error the district court’s findings of

fact. United States v. Martinez, 964 F.3d 1329, 1333 (11th Cir. 2020).

The district court’s determination that Brown possessed a gun in

connection with another felony offense is a factfinding that we re-

view only for clear error. See id. And to conclude that finding is

clearly erroneous, we must be left with the definite and firm con-

viction that a mistake was made. Id.

The government has the burden to show by a preponder-

ance of the evidence that the facts warrant a sentencing enhance-

ment. United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015).

That standard “simply requires” the district court, acting as the fact-

finder, “to believe that the existence of a fact is more probable than

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23-13804 Opinion of the Court 9

its nonexistence.” United States v. Watkins, 10 F.4th 1179, 1184 (11th

Cir. 2021) (quotation marks omitted). “[P]hrased in a slightly dif-

ferent fashion, it is proof that persuades the trier of fact that a prop-

osition is more likely true than not true.” Id. (quotation marks

omitted). “The findings of fact of the sentencing court may be

based on . . . facts admitted by a defendant’s plea of guilty, undis-

puted statements in the presentence report, or evidence presented

at the sentencing hearing.” United States v. Wilson, 884 F.2d 1355,

1356 (11th Cir. 1989).

The sentencing guidelines recommend a four-level enhance-

ment under U.S.S.G. § 2K2.1(b)(6)(B) if the defendant “used or pos-

sessed any firearm or ammunition in connection with another fel-

ony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The commentary to that

guideline states that the enhancement applies “if the firearm or am-

munition facilitated, or had the potential of facilitating, another fel-

ony offense.” Id. § 2K2.1, cmt. 14(A). For the purposes of §

2K2.1(b)(6)(B), “[a]nother felony offense” is defined as “any federal,

state, or local offense, other than the explosive or firearms posses-

sion or trafficking offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was

brought, or a conviction obtained.” Id. § 2K2.1(b)(6)(B), cmt.

14(C).

The district court relied on Georgia’s aggravated assault stat-

ute to find that Brown had committed another felony in connection

with his felon-in-possession offense. The Georgia aggravated as-

sault statute provides, in relevant part, that a person commits

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10 Opinion of the Court 23-13804

aggravated assault when he “[w]ith a deadly weapon or with any

object, device, or instrument which, when used offensively against

a person, is likely to or actually does result in serious bodily injury.”

O.C.G.A. § 16-5-21(a)(2). That crime is punishable by no less than

1 year and no more than 20 years imprisonment. Id. § 16-5-21(b).

Georgia aggravated assault thus qualifies as “[a]nother felony of-

fense” under § 2K2.1(b)(6)(B).

Brown stipulated at his plea hearing and admitted at sentenc-

ing that it was undisputed that he shot at least four times at the car

stopped in the intersection. That act qualifies as aggravated assault

under Georgia law and meets the requirements for § 2K2.1(b)(6)(B)

to apply. O.C.G.A. § 16-5-21(a)(2); U.S.S.G. § 2K2.1(b)(6)(B), cmt.

14(C); Wilson, 884 F.2d at 1356.

Still, Brown contends that the district court clearly erred be-

cause he shot in self-defense at the stationary car that was pointed

away from his house. It’s true that under Georgia law, “[a] person

is justified in threatening or using force against another when and

to the extent that he or she reasonably believes that such threat or

force is necessary to defend himself or herself or a third person

against such other’s imminent use of unlawful force.” Id. § 16-3-

21(a) (emphasis added).

Nevertheless, the court did not clearly err when it found by

a preponderance of the evidence that Brown did not reasonably

believe that the risk of harm presented by the car was imminent

when he fired at least four gunshots at it. Martinez, 964 F.3d at 1333;

Dimitrovski, 782 F.3d at 628. The court found that, even if Brown

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reasonably believed that the shooter was in the car, the location of

the car established that there was no imminent threat to him when

he fired his gun. The car was stopped at an intersection. It was

facing away from Brown’s house. As the court found, it was “head-

ing away from Mr. Brown.” Cf. Gobert v. State, 311 Ga. 305, 309

(2021) (rejecting a criminal defendant’s argument that he acted in

self-defense and thus should not have been convicted of felony

murder as predicated on aggravated assault when he shot at (and

struck one of the passengers of ) a car driving away from the de-

fendant, and reasoning: “[the defendant] shot at the car while the

three men [inside it] were fleeing, and [no one present was] in any

danger or any imminent threat of harm at that point”). The dis-

trict court didn’t clearly err in its factfindings, and it properly ap-

plied a four-level enhancement under § 2K2.1(b)(6)(B).

AFFIRMED.