The opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10289
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY LEROY BROWN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:23-cr-60101-KMM-1
____________________
Before NEWSOM, LAGOA, and KIDD, Circuit Judges.
KIDD, Circuit Judge:
Rodney Brown appeals his convictions for Hobbs Act rob-
bery and brandishing a firearm in furtherance of a crime of vio-
lence, and his sentence of 324 months of imprisonment. He makes
two arguments for the first time on appeal: First, the district court
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violated his Confrontation Clause rights by allowing a lab analyst
to testify at trial, even though the analyst did not conduct or ob-
serve the underlying lab testing or write the relevant lab report.
Second, the district court violated the Ex Post Facto Clause by us-
ing a later version of the U.S. Sentencing Commission Guidelines
Manual than the one in place at the time his offense occurred, re-
sulting in a higher guidelines range.
Because Brown raises these issues for the first time on ap-
peal, we are limited to reviewing the district court’s decisions only
for plain error. We find that the district court did not commit plain
error by allowing the lab analyst to testify. So we affirm his convic-
tions. But we agree with both Brown and the government that the
district court plainly erred by using the wrong version of the Guide-
lines Manual. As a result, we vacate his sentence and remand this
case for resentencing.
I. BACKGROUND
A grand jury indicted Rodney Brown on one count of Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a), and one count of
brandishing a firearm in furtherance of a crime of violence, in vio-
lation of 18 U.S.C. § 924(c)(1)(A)(ii).
At trial, a cashier at a convenience store testified about a rob-
bery she witnessed. That day, a robber entered the store and went
to one of the drink coolers to get a bottle of soda. He then ap-
proached and entered the register area with a gun in one hand and
another in his waistband. He demanded that the cashier open the
register and give him money, and he threatened to shoot her
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nearby five-year-old son if she did not comply. The cashier opened
the registers, and the robber put the money, which included a large
number of coins, in a bag, took her purse, and left the store. He left
the soda bottle that he had taken from the drink cooler on the coun-
ter. She testified that the robber was wearing all black, a hoodie,
and a face mask covering the bottom half of his face, but she did
not get a good look at him. Video surveillance from the store cor-
roborated her testimony. She was unable to identify the robber in
a photo array.
Detective Shaun Halleran of the Broward County Sheriff’s
Office testified that he responded to the robbery at the convenience
store, and he reviewed both interior and exterior video footage
from the store. Exterior video footage showed an individual wear-
ing a black hoodie, black pants, and white shirt standing on the
sidewalk outside the store for some time. This same individual
threw a bottle by the dumpster in the parking lot and then entered
the store. A few minutes later, this same individual exited the store
and entered an alley behind the store. Video footage from a neigh-
boring business that the same individual entered shortly before the
robbery captured an image of the individual’s face without a mask.
At an apartment complex a short distance from the store,
officers found a black mask and a roll of coins consistent with those
taken from the store. Officers also recovered the bottle the person
discarded outside the store. They swabbed both the bottle and the
black mask for DNA testing. Detective Halleran acknowledged
that Brown’s fingerprints were not found on any of the areas they
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checked for fingerprints inside the store or on the soda bottle left
on the counter. Detective Halleran testified that a state crime lab’s
DNA report showed two contributors on both the soda bottle re-
covered outside the store and the mask, though this report was not
admitted into evidence.
During the investigation, law enforcement also obtained
Brown’s DNA and sent it to DNA Labs International (“DLI”) for
testing so that it could be compared to the DNA swabs obtained
from the soda bottle and the mask. Daniel Aguilar, a senior DNA
analyst from DLI and an expert in forensic DNA examination, tes-
tified that in his role as an analyst at DLI, he obtains DNA profiles
generated from the evidence by DLI’s lab, he examines those pro-
files and makes comparisons, and he then reports his findings. Alt-
hough Aguilar was trained to conduct the lab testing of evidence,
in his current role as an analyst, Aguilar was “not doing the hands-
on laboratory work” examining the physical evidence himself. Ra-
ther, Aguilar explained that other persons in the lab examine the
physical evidence and test the evidence for DNA. The resulting
DNA profiles are then sent to the analysts for analysis and compar-
ison.
Aguilar then testified to the general protocol and procedures
DLI typically follows for testing evidence for DNA in the lab. Be-
cause a central argument in this appeal concerns his testimony, we
will quote the relevant portions directly:
So what generally happens is that the evidence
will get checked into a locker, a secure vault actually,
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when we receive it, and then the serologist or
screener will remove that when the time comes, and
they will go ahead and cut, in this case, swabs that
were received. They will cut portions of those swabs
into small tubes that are maybe like an inch or two
long. And then we take it to the four main laboratory
processes.
So those four steps are extraction, which is
when we expose those swabs or the sample to solu-
tions that break open the cells and release the DNA
and purify that DNA.
The next step is quantitation, which is where
we, as the name implies, we find out exactly how
much DNA is in that extract that we’ve created.
The third step is amplification. Amplification
involves—it’s sort of like a biological Xerox copier
where we start with, say, two copies of DNA. And
then after one cycle, we have 4 copies of DNA and
then we have 8 copies and 16 copies and 32 copies.
With every round it doubles. So after a few rounds,
we actually end up with millions and millions of cop-
ies when we only started with a few to begin with.
And when we do that, we tag specific areas of it with
colored dye so that we can see them later.
The fourth step that we then take it through is
we take that amplified DNA and we put it through an
instrument that allows us to see the DNA profile as a
series of peaks. So if you imagine sort of like a heart
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monitor where there’s a baseline, and then when your
heart beats, there’s a peak. So several of those pe[a]ks
will appear wherever DNA is present, and those peaks
are assigned numbers and those numbers become the
DNA profile.
Turning to the analyst’s tasks, Aguilar stated that the foren-
sic examination performed by the analysts at DLI were all “peer-
reviewed.” He explained that, generally, under this peer-review
process, the first analyst, known as “the writer[,] will get that data
that has been generated in the laboratory and they will make their
determinations and comparisons and they will then author the re-
port.”
[I]n so doing, [the first analyst] actually go[es]
through all of the steps that everybody before them
already did in the laboratory. Since they’re not doing
the hands-on laboratory work themselves, we’re all
working from the same set of—the same cookbook,
basically, the standard operating procedures. . . . And
that individual who is writing the report will take
ownership through all those documents of every-
thing that everybody in the laboratory did before
them so that when they sign that report, they own
everything that happened.
A second person, a second qualified analyst,
will then repeat the same process and make sure that
they agree with all of the conclusions that the first an-
alyst came to. So in this case, [the first analyst] Ms.
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Lisbeth Colon actually went through the entire pro-
cess of writing the case and I came behind her and
repeated the same process and I agree with all of
those findings.
Aguilar testified that based on the analysis he performed of the
DNA profiles in this case, Brown’s DNA matched the DNA found
on the soda bottle and the mask. Aguilar determined that the prob-
ability that the DNA belonged to someone other than Brown was
“1 in 36 nonillion,” which was a “36 with 30 zeros behind it.”
Brown did not object to any of this testimony. The government
then rested, and the defense did not present any evidence. The jury
found Brown guilty on both counts.
Brown’s presentence investigation report determined that
he was a career offender because the instant offense, Hobbs Act
robbery, was a crime of violence, and he had two prior felony con-
victions for either a crime of violence or a controlled substance.
United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2023).
The career offender enhancement increased Brown’s base offense
level from 20 to 32. Brown’s criminal history category was VI (the
highest), and, therefore, unaffected by the career offender enhance-
ment. His advisory guidelines range was 294 to 348 months of im-
prisonment. The Hobbs Act robbery conviction carried a statutory
maximum of 20 years of imprisonment. Meanwhile, the conviction
for brandishing a firearm in furtherance of a crime of violence car-
ried a mandatory minimum seven-year term of imprisonment and
a maximum term of life, which was statutorily required to run con-
secutive to the sentence he received for the Hobbs Act robbery.
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The district court sentenced Brown to a total of 324 months of im-
prisonment followed by three years of supervised release. This ap-
peal followed.
II. STANDARD OF REVIEW
We ordinarily review constitutional claims de novo, but,
where, as here, a defendant raises his constitutional challenge for
the first time on appeal, we review for plain error only. United States
v. Alfonso, 104 F.4th 815, 828 (11th Cir. 2024). “To establish plain
error, a defendant must show there is (1) error, (2) that is plain, and
(3) that affects substantial rights. If all three conditions are met, we
may exercise our discretion to recognize a forfeited error, but only
if the error seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.” Id. at 829 (citation modified).
III. DISCUSSION
We will first address Brown’s Confrontation Clause argu-
ment before turning to his Ex Post Facto Clause argument.
A. The District Court Did Not Plainly Err in Allowing the
Government’s DNA Expert To Testify
Under the Confrontation Clause of the Sixth Amendment,
“the accused shall enjoy the right . . . to be confronted with the wit-
nesses against him.” U.S. CONST. amend. VI. In Crawford v. Wash-
ington, the Supreme Court explained that the Confrontation
Clause’s “primary object” is “testimonial hearsay.” 541 U.S. 36, 53
(2004). If hearsay is “testimonial,” the Confrontation Clause forbids
its introduction at trial, unless: (1) the declarant is unavailable, and
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(2) the defendant had a prior opportunity to cross-examine the de-
clarant. Id. at 53–54.
In Melendez-Diaz v. Massachusetts, the Supreme Court held
that the Confrontation Clause applied to forensic “certificates of
analysis” that stated that lab tests had identified an unknown sub-
stance as cocaine. 557 U.S. 305, 309–11 (2009). The Court reasoned
that the certificates were testimonial because they were function-
ally identical to live, in-court testimony, and they were hearsay be-
cause they were offered to prove the truth of the matter asserted—
that the substance seized was cocaine. Id. at 310–11. Thus, the
Court held that, under Crawford, the defendant had a right to cross-
examine the lab analyst certifiers. Id. at 311.
The Supreme Court has also found that the government vi-
olated the Confrontation Clause when it “introduce[d] a forensic
laboratory report containing a testimonial certification, made in or-
der to prove a fact at a criminal trial, through the in-court testi-
mony of an analyst who did not sign the certification or personally
perform or observe the performance of the test reported in the cer-
tification.” Bullcoming v. New Mexico, 564 U.S. 647, 657 (2011). The
Court reasoned that the “surrogate testimony” from the other an-
alyst was insufficient to satisfy the Confrontation Clause because
the analyst “could not convey what [the certifying analyst] knew
or observed” about “the particular test and testing process he em-
ployed.” Id. at 661. Nor could that “testimony expose any lapses or
lies on the certifying analyst’s part.” Id. at 662.
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Most recently—following Brown’s trial, but while his appeal
was pending—the Supreme Court again addressed the Confronta-
tion Clause in the context of forensic reports in Smith v. Arizona,
602 U.S. 779 (2024). And an “intervening decision by . . . the Su-
preme Court squarely on point may make an error plain.” United
States v. Jones, 743 F.3d 826, 829–30 (11th Cir. 2014) (citation modi-
fied); see also Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (stating
that “a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on direct
review or not yet final”).
In Smith, an analyst from a state crime lab tested items seized
from the defendant’s property. 602 U.S. at 790. The analyst “pre-
pared a set of typed notes . . . [that] documented her lab work and
results,” including detailed descriptions of the tests performed on
the items, whether she first ran certain tests on the testing equip-
ment, the results of the tests, and her findings and conclusions as
to the types of drugs identified. Id. But between the lab testing and
the trial, the analyst stopped working at the lab, and the state re-
placed her as a witness with a second analyst, who “had no prior
connection to the . . . case.” Id. Relying solely on the first analyst’s
notes and records, the second analyst came to the same conclusions
and testified to that effect at trial, referring repeatedly to the first
analyst’s report and notes. Id. at 791. Specifically, with regard to
each individual item tested, the second analyst
described the specific “scientific methods” [the first
analyst] had used to analyze the [seized] substance
(e.g., a microscopic examination, a chemical color
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test, a gas chromatograph/mass spectrometer test).
And as to each, he stated that the testing had adhered
to “general principles of chemistry,” as well as to the
lab’s “policies and practices[]”; so he noted, for exam-
ple, that [the first analyst] had run a “blank” to con-
firm that testing equipment was not contaminated.
After thus telling the jury what [the first analyst’s] rec-
ords conveyed about her testing of the items, [the sec-
ond analyst] offered an “independent opinion” of
[the] identity [of the substances].
Id. at 791 (citation modified).
On appeal, the defendant argued the second analyst’s testi-
mony violated the Confrontation Clause because the first analyst’s
“statements were conveyed, via [the second analyst’s] testimony,
to establish that what [the first analyst] said happened in the lab did
in fact happen” (i.e., “that she used certain standard procedures to
run certain tests, which enabled identification of the seized items”).
Id. at 793. The state argued that there was no Confrontation Clause
issue because the second analyst testified about “his own independ-
ent opinions, even though [he made] use of [the first analyst’s] rec-
ords.” Id. at 791 (citation modified). The Supreme Court disagreed,
focusing on the fact that the second analyst, “though familiar with
the lab’s general practices, had no personal knowledge about [the
first analyst’s] testing of the seized items.” Id. at 796. Thus, the sec-
ond analyst’s testimony—that specific scientific methods were used
to test certain evidence, that the lab’s policies and practices were
followed, and that the items tested were certain drug substances—
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“were [entirely] predicated on the truth of [the first analyst’s] fac-
tual statements.” Id. at 797–98. But the defendant could not ask the
first analyst any questions because she was not called to testify. Id.
at 798. Accordingly, the Supreme Court held that “[w]hen an ex-
pert conveys an absent analyst’s statements in support of his opin-
ion, and the statements provide that support only if true, then the
statements come into evidence for their truth”—i.e., the state-
ments are hearsay and implicate the Confrontation Clause if they
are also testimonial. Id. at 783, 798–800.
But notably, the Supreme Court cautioned that the second
analyst still could have testified to certain general matters without
creating a Confrontation Clause problem. For instance, because
the second analyst worked in the same lab as the first analyst,
he could [have] testif[ied] from personal knowledge
about how that lab typically functioned—the stand-
ards, practices, and procedures it used to test seized
substances, as well as the way it maintained chains of
custody. . . . Or had he not been familiar with [the
first analyst’s] lab, he could have testified in general
terms about forensic guidelines and techniques—per-
haps explaining what it means for a lab to be accred-
ited and what requirements accreditation imposes.
Or . . . he might have been asked—and could have an-
swered—any number of hypothetical questions, tak-
ing the form of: “If or assuming some out-of-court
statement were true, what would follow from it?”
Id. at 799 (citation modified). But the second analyst’s testimony
had not taken that form. Instead, the state used him “to relay what
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[the first analyst] wrote down about how she identified the seized
substances. [He] thus effectively became [the first analyst’s] mouth-
piece. He testified to the precautions (she said) she took, the stand-
ards (she said) she followed, the tests (she said) she performed, and
the results (she said) she obtained.” Id. at 800. Thus, having deter-
mined that the testimony comprised out-of-court statements of-
fered for the truth of the matter asserted, the Supreme Court re-
manded the case to the state court to determine whether the out-
of-court statements were testimonial. Id. at 800–02.
Brown argues that under plain error review, Smith is clearly
on point and demonstrates that Aguilar’s testimony violated the
Confrontation Clause. Specifically, Brown argues that Aguilar’s
testimony violated the Confrontation Clause because he based his
testimony on and “acted as a surrogate witness for multiple other
individuals at DLI who did not testify,” such as (1) Colon, who was
the first analyst and prepared the report, and (2) the lab technicians
who tested the DNA evidence and created the DNA profile.
But Brown’s case is distinguishable from Smith. Aguilar’s tes-
timony reflected his own firsthand knowledge and experience; it
was not predicated on Colon’s analysis. Unlike in Smith, Aguilar
was actually involved in the analysis, “repeated the same process”
as Colon, and independently reached the same conclusion that
Brown’s DNA profile matched the profiles obtained from the mask
and the soda bottle. In other words, Aguilar was not simply reading
or relying on Colon’s report and accepting her findings as to the
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DNA comparisons. Instead, he was testifying to his own conclu-
sions based on his own comparison analysis of the DNA profiles
generated from the evidence. Thus, the concern presented in
Smith—a surrogate analyst with “no personal knowledge” or “prior
connection” to the case testifying solely based on the work done
entirely by a different analyst—was not present here. Id. at 790, 796.
Brown highlights that other persons at DLI did the hands-on
lab work and generated the DNA profiles from the physical evi-
dence, and those persons did not testify. But unlike in Smith, Agui-
lar did not testify as to the specific tests the lab used in Brown’s case
or that the process followed the lab’s standard policies and proce-
dures. Rather, Aguilar arguably avoided the pitfalls in Smith by tes-
tifying only generally as to how the lab typically functioned, which
the Supreme Court agreed did not violate the Confrontation
Clause in Smith. Id. at 799–800 (explaining that because the second
analyst worked in the same lab as the first analyst, “he could testify
from personal knowledge about how that lab typically func-
tioned—the standards, practices, and procedures it used to test
seized substances, as well as the way it maintained chains of cus-
tody,” and these “forms of testimony allow forensic expertise to
inform a criminal case without violating the defendant’s right of
confrontation”).
And importantly, neither this Court nor the Supreme Court
in Smith, Bullcoming, and Melendez-Diaz has held that the Confron-
tation Clause requires an opportunity to cross-examine every lab
person involved in the process of generating a DNA profile. We
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also take no position on the merits of that argument in this case.
We hold only that the district court did not commit plain error in
allowing the testimony. See United States v. Hesser, 800 F.3d 1310,
1325 (11th Cir. 2015) (“[T]here can be no plain error where there is
no precedent from the Supreme Court or this Court directly resolv-
ing it.”).
B. The District Court Plainly Erred in Applying a Career Of-
fender Enhancement to Brown’s Hobbs Act Robbery Offense
By contrast, the government concedes that the district court
committed plain error at sentencing by imposing a career offender
enhancement using a version of the Guidelines Manual issued after
the underlying offense occurred, which resulted in a higher guide-
lines range. The government urges us to remand this case for re-
sentencing. We will do so.
“Although a defendant is ordinarily sentenced under the
Guidelines in effect at the time of sentencing, the Ex Post Facto
Clause proscribes sentencing an offender under a version of the
Guidelines that would provide a higher sentencing range than the
version in place at the time of the offense.” United States v.
Elbeblawy, 899 F.3d 925, 939 (11th Cir. 2018) (citation modified).
The district court used the 2023 version of the Guidelines
Manual in effect at the time of Brown’s sentencing, which included
a recent amendment that reclassified Hobbs Act robbery to be a
crime of violence for purposes of the career offender enhancement.
See U.S. Sent’g Comm’n, Adopted Amendments (Effective Nov. 1,
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2023), Amendment 822. But prior to that amendment, binding Cir-
cuit precedent held that Hobbs Act robbery did not qualify as a
crime of violence for purposes of the career offender enhancement.
United States v. Eason, 953 F.3d 1184, 1194–95 (11th Cir. 2020).
Brown’s offense occurred in March 2023, which was prior to
the effective date of the amendment. Therefore, the district court
erred in sentencing him under the 2023 Guidelines Manual. See
Elbeblawy, 899 F.3d at 939. As a result of this error, Brown received
an enhancement for which he otherwise would not have qualified.
We agree with the government that this error was plain and af-
fected Brown’s substantial rights. The error also seriously affected
the fairness, integrity, and public reputation of judicial proceedings,
so Brown is entitled to relief. Accordingly, we vacate Brown’s sen-
tence and remand for resentencing using the 2021 version of the
Guidelines Manual.
IV. CONCLUSION
We AFFIRM Brown’s conviction, but VACATE Brown’s
sentence, and REMAND for resentencing.