# United States v. Gabriel Brown

> Court of Appeals for the Eleventh Circuit · August 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11116342

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 7, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11116342

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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[DO NOT PUBLISH]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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23-13804 Opinion of the Court 11

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11116342. Public record. Not legal advice.