USCA11 Case: 21-12248 Date Filed: 09/07/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12248
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL EDDIE MELLON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cr-00256-JPB-AJB-1
____________________
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2 Opinion of the Court 21-12248
Before WILSON, JORDAN, and LUCK, Circuit Judges.
PER CURIAM:
Randall Eddie Mellon appeals his sentence of 100 months’
imprisonment for possession of a firearm by a convicted felon. He
argues that the district court clearly erred in finding that the gov-
ernment had proven by a preponderance of the evidence that the
substances found in his residence and vehicle were marijuana and
in applying an enhancement for possession of a firearm in connec-
tion with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B).
He also contends that the strict liability standard for the application
of the stolen firearm enhancement under U.S.S.G. § 2K2.1(b)(4) vi-
olates due process.
I
We review a district court’s factual findings underlying a
sentencing determination for clear error and the application of
those facts to the Guidelines de novo. See United States v. Wil-
liams,
527 F.3d 1235, 1247-48 (11th Cir. 2008). The determination
that a defendant possessed a firearm “in connection with” another
felony is a finding of fact. See United States v. Mar-
tinez,
964 F.3d 1329, 1333 (11th Cir. 2020). Factual findings are
clearly erroneous when, although there is evidence to support
them, we are “left with a definite and firm conviction that a mistake
has been committed.” United States v. Barrington,
648 F.3d 1178,
1195 (11th Cir. 2011) (quotation marks omitted). A factual finding
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21-12248 Opinion of the Court 3
cannot be clearly erroneous, however, when the factfinder is
choosing between two permissible views of the evidence. See
United States v. Saingerard,
621 F.3d 1341, 1343 (11th Cir. 2010).
When a defendant challenges a factual basis of his sentence,
the government has the burden of proving the disputed fact by a
preponderance of the evidence. See United States v. Polar,
369 F.3d
1248, 1255 (11th Cir. 2004). This burden must be satisfied with re-
liable and specific evidence. See United States v. Martinez,
584 F.3d
1022, 1027 (11th Cir. 2009). The preponderance standard requires
only that the factfinder believes that the existence of a fact is more
probable than its nonexistence. See United States v. Trainor,
376
F.3d 1325, 1331 (11th Cir. 2004). The sentencing court’s factual
findings may be based on evidence presented at the sentencing
hearing or undisputed statements in the PSI. See Polar,
369 F.3d at
1255.
We accord great deference to the district court’s credibility
determinations. United States v. Clay,
376 F.3d 1296, 1302 (11th
Cir. 2004). We must accept the district court’s credibility determi-
nation “unless it is contrary to the laws of nature, or is so incon-
sistent or improbable on its face that no reasonable factfinder could
accept it.” United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th
Cir. 2002) (quotation marks omitted).
The Sentencing Guidelines provide for a four-level enhance-
ment if the defendant possessed the firearm “in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). A firearm is
possessed in connection with another felony offense if the firearm
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4 Opinion of the Court 21-12248
facilitated or had the potential to facilitate another felony offense.
See id., comment. (n.14(A)). Close proximity between a firearm
and drugs or drug paraphernalia acts as a proxy for the potential of
the firearm to facilitate a drug-trafficking offense and, thus, without
any additional evidence, establishes that the firearm was possessed
in connection with the offense. See Martinez, 964 F.3d at 1338;
U.S.S.G. § 2K2.1, comment. (n.14(B)).
Here, the district court did not clearly err in finding that the
substances that Mr. Mellon possessed were marijuana and that he
thus possessed firearms in connection with another felony. First,
when asked after his arrest if he still sold drugs, Mr. Mellon said “I
sell weed.” Second, in his testimony, Task Force Officer Reynolds
identified the substance as marijuana. Third, the paraphernalia
found within Mr. Mellon’s residence suggested distribution.
Fourth, Mr. Mellon had Instagram posts with substances that ap-
peared to be marijuana.
II
We review de novo a district court’s interpretation of the
Guidelines and its application of the Guidelines to the facts. See
United States v. Fox,
926 F.3d 1275, 1278 (11th Cir. 2019). We re-
view de novo constitutional challenges to the Guidelines. See
United States v. Matchett,
802 F.3d 1185, 1191 (11th Cir. 2015).
The Sentencing Guidelines call for a two-level enhancement
for a firearms offense when “any firearm . . . was stolen.” U.S.S.G.
§ 2K2.1(b)(4)(A). The commentary states that this enhancement
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21-12248 Opinion of the Court 5
applies “regardless of whether the defendant knew or had reason
to believe that the firearm was stolen.” See § 2K2.1(b)(4)(A), com-
ment. (n.8(B)).
We have rejected the argument that the rule of lenity re-
quires that the government prove that the defendant knew a fire-
arm was stolen because the rule of lenity applies only when a stat-
ute is ambiguous. United States v. Richardson,
8 F.3d 769, 770
(11th Cir. 1993). The text of § 2K2.1(b)(4) “[is] not ambiguous,”
and, thus, there is “clearly no mens rea requirement” for the en-
hancement. Id. In Richardson, we further held that “the lack of a
mens rea element in the sentencing enhancement for possession of
a stolen firearm does not offend due process because § 2K2.1(b)(4)
does not create a crime separate and apart from the underlying fel-
ony.” Id. We later reiterated that “knowledge that such a device
is stolen property is not a prerequisite to the application of
§ 2K2.1(b)(4),” citing the commentary to § 2K2.1 and Richardson.
See United States v. Holden,
61 F.3d 858, 860 (11th Cir. 1995).
The Supreme Court recently clarified when courts should
defer to agency interpretations of ambiguous regulations. See Ki-
sor v. Wilkie,
139 S. Ct. 2400, 2408 (2019). It held that such defer-
ence is warranted only when the court has determined, “based on
indicia like text, structure, history, and purpose, whether the regu-
lation really has more than one reasonable meaning,” and where
the interpretation “is of the sort that Congress would want to re-
ceive deference.”
Id. at 2424.
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6 Opinion of the Court 21-12248
The same year it decided Kisor, the Supreme Court held
that, in prosecuting a defendant under
18 U.S.C. § 922(g) and § 924(a)(2), the government must prove that
he knew of his status as a convicted felon at the time when he pos-
sessed the firearm. See Rehaif v. United States,
139 S. Ct. 2191,
2195-2200 (2019). The Court noted that there is a “longstanding
presumption, traceable to the common law” in favor of scienter,
even when Congress has not explicitly added a mens rea require-
ment to a criminal statute.
Id. at 2195.
Under the prior panel precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc.” United States v. Archer,
531
F.3d 1347, 1352 (11th Cir. 2008). “While an intervening decision of
the Supreme Court can overrule the decision of a prior panel of our
court, the Supreme Court decision must be clearly on point.”
Id.
(quotation marks omitted).
Here, Mr. Mellon’s argument that the stolen firearm en-
hancement is unconstitutional because it lacks a mens rea require-
ment is foreclosed by our prior panel precedent in Richardson,
which has not been “overturned or undermined to the point of ab-
rogation” by Kisor or Rehaif. See Archer,
531 F.3d at 1352. Simply
stated, neither case addressed a strict liability enhancement in a
guidelines provision.
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21-12248 Opinion of the Court 7
III
Mr. Mellon’s sentence is AFFIRMED.
