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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11796
Non-Argument Calendar
________________________
D.C. Docket No. 7:18-cr-00397-LSC-JEO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CHRISTOPHER DOBBS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 3, 2020)
Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
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John Dobbs appeals his 120-month sentence for possession of a firearm as a
convicted felon. Dobbs raises two issues on appeal. First, he argues that the
district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure
by failing to find that he used the firearm in connection with kidnapping his
then-wife. Second, Dobbs argues that, even if the district court did not violate
Rule 32(i)(3)(B), it clearly erred by applying an upward offense-level adjustment
because there was insufficient evidence that he kidnapped her. We hold that the
district court’s finding that Dobbs used a firearm in connection with a kidnapping
was neither procedurally nor substantively defective. Accordingly, we affirm
Dobbs’s sentence.
I.
A. Facts
On January 24, 2018, J.B. 1 called the police from a fire station in
Tuscaloosa, Alabama. When the police arrived, J.B. was “emotionally distraught,”
“[t]errified,” “shaking,” and visibly injured. She reported that her husband, Dobbs,
had beaten her and held her against her will. 2 She also told the police that Dobbs
was currently armed with a pistol. The police then located Dobbs, arrested him,
1
Although Dobbs’ former wife testified in open court at the sentencing hearing, in the
interest of J.B.’s privacy, the parties reference her by her initials in their briefs and therefore we
do so here.
2
J.B. and Dobbs divorced in December 2018.
2
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and recovered his firearm, which was loaded with 13 rounds of ammunition.
Dobbs and J.B. provided different descriptions of the circumstances leading up to
J.B.’s frantic call and Dobbs’s arrest. We begin with the undisputed facts.
In January 2018, J.B. picked up Dobbs from a drug treatment facility in
Birmingham, Alabama. The couple spent three or four days using drugs in a hotel
room before continuing their drive to Tuscaloosa, Alabama. They arrived in
Tuscaloosa on January 23, 2018 and immediately went to a Title Loan store. With
cash in hand, they bought two cell phones and then got a hotel room. Next, they
went to a pawn shop. Here is where the stories begin to diverge.
At the sentencing hearing, J.B. testified that it was Dobbs who wanted to
buy the gun from the pawn shop, and he told her that “if [she] didn’t go get the
gun, he was going to—he would kill [her] regardless.” J.B. told Dobbs that she did
not want to buy the gun and he replied, “[y]ou’re going to buy the f**king gun.”
J.B. feared disobeying him because he had abused her in the past. Dobbs walked
J.B. through the necessary steps to buy the gun at the pawn shop—or, as J.B. put it,
“he might as well walked in there and got it hisself [sic].” And after J.B.
purchased the gun, Dobbs took it and loaded it with ammunition. Dobbs kept the
gun in his possession for the remainder of the time J.B. was with him.
As Dobbs tells it, they went to the pawn shop to buy a gun because Dobbs
planned to get a night job and J.B. needed a gun for protection. He claims that he
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did not fill out the paperwork for J.B. but stood near the bullets in a separate area
of the pawn shop. He argues that J.B. could have asked the clerk for help at that
point, and other points during their trip, if she believed he was holding her against
her will.
According to J.B., when the two returned to the hotel after purchasing the
gun, Dobbs beat her and would not let her leave the room. J.B. testified that in the
past, Dobbs had been mentally, physically, emotionally, and sexually abusive.
And at some point, Dobbs told J.B. that if she called 9-1-1, he would kill her. J.B.
testified that if she tried to leave the hotel, “he would have hurt [her].”
They went to another title loan store the next morning. J.B. drove. She
testified that she did not want to be with Dobbs at all but believed Dobbs would
kill her if she refused to drive to the store. Dobbs still had the gun at that point.
They parked in front of the store, and Dobbs got out of the car, leaving the keys
behind with J.B. As soon as Dobbs closed the door, J.B. turned the car on, drove
to a nearby fire station, and called the police.
During his allocution, Dobbs admitted that he had hit his wife, but
maintained that he never kidnapped her. He claimed he would never “kill her, hurt
her or her family to the point where it was just out of control.”
B. Plea and Sentencing
4
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Upon his arrest on January 24, 2018, Dobbs was charged with kidnapping in
the first degree, domestic violence in the third degree, and unlawful possession of a
firearm. In September 2018, the grand jury returned a one-count indictment for
possession of a pistol as a convicted felon. 18 U.S.C. § 922(g)(1). Dobbs entered
an unnegotiated guilty plea.
In the Presentence Investigation Report (“PSI”), the probation officer
determined that the proper sentencing guideline for a violation of 18 U.S.C. §
922(g)(1) is U.S.S.G. § 2K2.1. That section provides that if the defendant was a
“prohibited person” when he committed the instant offense, the base level offense
is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (U.S. Sentencing
Comm’n 2004). The Guidelines define a “prohibited person” as any person who
has been convicted of any crime punishable for a term exceeding one year.
Id.,
cmt. (n.3).3 Because Dobbs had prior felonies, he was a prohibited person at the
time of the offense. The probation officer then found that, because Dobbs used the
firearm in connection with another felony—here, kidnapping—the base-offense
level should be increased by 4 to 18 pursuant to U.S.S.G. § 2K.1(b)(6)(B). And
after applying the cross reference in U.S.S.G. § 2K2.1(c)(1)(A), the probation
3
The “commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United States,
508 U.S. 36, 38 (1993).
5
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officer determined that the base offense level for the substantive offense should
apply. 4 Because the substantive offense was kidnapping, the probation officer
applied U.S.S.G. § 2A4.1(a), which established Dobbs’s base-offense level at 32.
Pursuant to U.S.S.G. § 2A4.1(b)(3), the probation officer increased the base-
offense level by two because Dobbs’s offense involved a dangerous weapon. The
probation officer then applied a 3-level downward adjustment for Dobbs’s
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total
offense level of 31.
The PSI also recited Dobbs’s criminal history, which included several felony
convictions. The probation officer calculated Dobbs’s criminal history score as 16,
which placed him in criminal history category VI. The probation officer noted that
the statutory maximum sentence for Dobbs’s offense was 120 months. Based on
Dobbs’s offense level of 31 and criminal history category of VI, the probation
officer determined that the Guidelines imprisonment range was 188 to 235 months.
But because this range exceeded the statutory maximum sentence, the probation
officer concluded that the appropriate Guideline imprisonment term was 120
months.
4
The level for the substantive offense applied because under the cross reference in
U.S.S.G. § 2K2.1(c)(1)(A), if the defendant used or possessed a firearm in connection with the
commission of another offense, U.S.S.G. § 2X1.1 is applied in respect to that offense so long as
the resulting offense is higher than the calculation under U.S.S.G. § 2K2.1. Section 2X1.1
directs that the base offense level from the guideline for the substantive offense is applied.
6
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Dobbs filed two objections to the PSI. 5 He first objected that his offense
level should not have been increased to 32 pursuant to U.S.S.G. §§ 2A4.1(a) and
2K2.1(c)(1)(A) in paragraph 13 of the PSI. His first written objection states:
The Defendant objects to the increase to level 32. The Defendant
denies that he used the firearm other than the possession it [sic] which
he has already pled guilty to. Additionally, he has not been found
guilty nor pled guilty to any other charges related to his wife [sic]
allegations.
In addition, Dobbs objected to the two-level enhancement for use of a firearm in
paragraph 14:
The Defendant was increased 2 levels. The Defendant denies the use
of the firearm. He has pled to possession of said firearm. He would
also argue that this increase is a double counting and should not be
applied.
After Dobbs filed these objections, the district court continued the sentencing
hearing to allow witnesses to testify.
At this continued hearing, the government called two witnesses who testified
to the facts surrounding the alleged kidnapping and the timing of the acquisition of
the gun: the victim and the police officer who interviewed her. The victim testified
that on the same night that Dobbs purchased the gun, Dobbs beat her and would
not let her leave the hotel room. The police officer then took the stand and
5
In making these objections, Dobbs objected to only the paragraphs in the PSI which
summarized the base-level calculations and adjustments (paragraphs 13 and 14) but not the
factual paragraphs underlying the proposed offense-level adjustments (paragraphs 5 through 8).
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described the victim’s injuries following the kidnapping, as well as Dobbs’s arrest.
Dobbs did not testify, and he did not call any witnesses. At the conclusion of the
government witnesses’ testimony, the district court overruled Dobbs’s objections
to the PSI and determined that the enhancement based on the kidnapping was
proper:
the guideline calculations as stated are correct; that is, the guideline
offense level – and this Court adopts the factual statements contained
in the presentence report and makes specific findings that the
guidelines offense level is thirty-one, the criminal history category is
VI, the advisory guideline imprisonment range is one hundred twenty
months, the supervised release period is one to three years . . .
In so ruling, the district court necessarily found that the kidnapping elements were
met and that a gun was used in the kidnapping. When the district court asked for
Dobbs’s response, his counsel replied that “he stands on the objection that we filed,
and we certainly deny the allegations of the kidnapping.”
The district judge then allowed Dobbs to speak to the court before
pronouncing the sentence. He repeatedly stated that he did not kidnap his wife and
that she could have left or asked for help at any time. Following Dobbs’s unsworn
statements, the district court sentenced Dobbs to the statutory maximum of 120
months. The district court asked whether Dobbs had any objections regarding the
findings of fact, the calculations, the sentence or the manner in which the sentence
was pronounced or imposed. Dobbs’s counsel replied that he had none. This
appeal followed.
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II.
A. The District Court Did Not Violate Rule 32 of the Federal Rules of Criminal
Procedure.
Federal Rule of Criminal Procedure 32(i)(3)(B) provides that during
sentencing, the district court “must—for any disputed portion of the presentence
report or other controverted matter—rule on the dispute or determine that a ruling
is unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).
Dobbs argues that the district court violated this rule because it did not make
any specific factual findings regarding Dobbs’s objections to the kidnapping
enhancement pursuant to § 2K2.1(c)(1), but rather the district court summarily
overruled his objection at the conclusion of the hearing. In response, the
government argues that the district court ruled on Dobbs’s objection, thereby
satisfying Rule 32(i)(3)(B).
In general, we review a district court’s application of Rule 32 de novo. See
United States v. Spears,
443 F.3d 1358, 1361 (11th Cir. 2006). But if the
defendant does not preserve the objection in the district court, we will review only
for plain error. See Fed. R. Crim. P. 52(b); United States v. Henderson,
409 F.3d
1293, 1307 (11th Cir. 2005). Under this standard, an appellant must show an error
that is plain and affects substantial rights.
Henderson, 409 F.3d at 1307. Even
assuming de novo review applies, the district court did not violate Rule 32(i)(3)(B).
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A defendant triggers Rule 32(i)(3)(B) only by objecting to statements of fact
that are in the PSI. See United States v. Owen,
858 F.2d 1514, 1517 (11th Cir.
1988) (discussing Fed. R. Crim. P. 32(c)(3)(D)—the predecessor to Rule
32(i)(3)(B)). Defendants must assert challenges to factual statements from the PSI
“with specificity and clarity.” United States v. Bennett,
472 F.3d 825, 832 (11th
Cir. 2006). If a defendant’s objections do not satisfy the specificity and clarity
requirements, they are waived. See
id.
Here, Dobbs objected to the application of the kidnapping enhancement
pursuant to §2K2.1(c)(1) because he did not plead guilty to charges related to his
wife and because he only possessed the gun but did not actually use it.
Accordingly, the district court held an evidentiary hearing and heard testimony
about the kidnapping and the firearm issues. The district court then ruled on
Dobbs’s objections to the kidnapping enhancement. It adopted the factual
statements in the PSI, determined that the guidelines calculations were correct, and
overruled Dobbs’s objections. Rule 32 requires the district court to rule on
disputed issues, and, following an evidentiary hearing, the district court did just
that: it ruled that the kidnapping sentencing enhancement pursuant to the
Guidelines was proper. Accordingly, the district court did not violate Rule
32(i)(3)(B).
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Dobbs also argues that the district court failed to consider the timing of
when J.B. was kidnapped for the purposes of the enhancement and failed to make
specific factual findings regarding the elements of kidnapping. Dobbs did not
object to the timing or elements of kidnapping before the district court. Therefore,
plain error review applies. See
Henderson, 409 F.3d at 1307.
As an initial matter, Dobbs did not make “clear and focused objections” to
these factual issues.
Owen, 858 F.2d at 1517. He therefore did not trigger the
district court’s obligation under Rule 32 to rule on these objections. More
importantly, however, both the timing and the elements of the kidnapping were
sufficiently addressed in the evidentiary hearing that the district court convened to
address Dobbs’s objections to the PSI. The district court’s subsequent ruling on
this objection necessarily resolved these issues as well. Accordingly, there is no
error and certainly no plain error.
B. The District Court’s Findings About Kidnapping Were Not Clearly
Erroneous
Dobbs also argues that the district court clearly erred in finding that the
enhancement pursuant to U.S.S.G. § 2K2.1(c)(1)(A) was warranted because Dobbs
used or possessed the firearm in connection with kidnapping J.B. In general, this
Court reviews a district court’s factual findings, as well as its application of the
Sentencing Guidelines to the facts, for clear error. United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010); United States v. Williams,
340 F.3d 1231,
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1239 (11th Cir. 2003) (“Where a determination turns primarily on the evaluation of
facts . . . that are more accessible to the district court than to the court of appeals,
we will defer to the district court's application of the law to those facts and apply
‘clear error’ review.”). A finding will not be considered clearly erroneous if it is
plausible in light of the record as a whole, see United States v. Ladson,
643 F.3d
1335, 1341 (11th Cir. 2011), or if it is based on one of two permissible views of
the evidence. United States v. Saingerard,
621 F.3d 1341, 1343 (11th Cir. 2010).
Dobbs asserts the district court clearly erred because the record was insufficient to
establish (1) if and when J.B. was kidnapped; and (2) whether Dobbs used or
possessed the pistol in connection with the kidnapping. We take each issue in turn.
i. Kidnapping
Here, the district court imposed an enhanced sentence because it adopted the
PSI’s findings that Dobbs possessed a gun in connection with the kidnapping of his
wife.6 Dobbs contends that the district court clearly erred in finding that the
elements of kidnapping were met. Our review of the record reveals otherwise.
In Alabama, “a person commits the crime of kidnapping in the first degree if
he abducts another person with intent to . . . accomplish or aid in the commission
6
Dobbs was charged with, but not convicted of, felony kidnapping. Still, sentencing
courts may consider both uncharged and acquitted conduct in determining the appropriate
sentence “so long as that conduct has been proved by a preponderance of the evidence.” United
States v. Watts,
519 U.S. 148, 157 (1997); United States v. Hasson,
333 F.3d 1264, 1279 n. 19
(11th Cir. 2003).
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of any felony . . . [i]nflict physical injury upon him or abuse him sexually . . . or
terrorize him. . . .” Ala. Code § 13A-6-43(a). 7 Kidnapping in the first degree is a
felony. Ala. Code § 13A-6-43(c). Kidnapping in the second degree is also a
felony and occurs when a person abducts another person. Ala. Code § 13A-6-44.
For the purposes of these crimes, the term “abduct” means “[t]o restrain a person
with intent to prevent his liberation by either secreting or holding him in a place
where he is not likely to be found, or using or threatening to use deadly physical
force.” Ala. Code § 13A-6-40(2). “Thus, in order to be abducted, a person must
be restrained.” Grayson v. State,
824 So. 2d 804, 816 (Ala. Crim. App. 1999). To
“restrain” someone is to:
intentionally or knowingly restrict a person's movements unlawfully
and without consent, so as to interfere substantially with his liberty by
moving him from one place to another, or by confining him either in
the place where the restriction commences or in a place to which he
has been moved. Restraint is ‘without consent’ if it is accomplished
by . . . [p]hysical force, intimidation or deception.
Ala. Code § 13A-6-40(1)a.
The record establishes that Dobbs intentionally used physical force and
intimidation to restrict and confine J.B. in the motel room while in possession of
the firearm. According to paragraph 5 of the PSI report (to which Dobbs did not
7
Because there has been no allegation that the alleged kidnapping in this case involved
interstate commerce, the federal kidnapping statute does not apply. See 18 U.S.C. § 1201(a);
U.S.S.G. § 2K2.1 (cmt. 14(C) (“‘Another offense’, for purposes of subsection (c)(1), means any
federal, state, or local offense, other than the explosive or firearms possession or trafficking
offense, regardless of whether a criminal charge was brought, or a conviction obtained.”)).
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object), J.B. told the police that Dobbs “held her against her will and physically
abused her the night before.” She reported that Dobbs made her purchase a pistol
for him and “she feared Dobbs would hurt her” if she refused. At the hearing, J.B.
testified that she “didn’t want to be with him at all” and that Dobbs “wouldn’t let
[her] out of the hotel that night.” She also testified that he “had the gun” in the
hotel room and was “punching and beating on [her],” and that “he’d kill [her]” if
she called 9-1-1 or refused to go to the title loan shop with him. The record clearly
shows that Dobbs used physical force and intimidation to prevent J.B. from leaving
the motel room. See Ala. Code §§ 13A-6-43(a), 13A-6-44; 13A-6-40(1)a. Thus,
in light of the record of the whole, it is plausible that Dobbs kidnapped his wife
and therefore the district court did not err in applying the enhancement.
That J.B. initially consented to joining Dobbs—in fact, she picked him up
from the drug treatment facility—does not affect our conclusion. “[I]t is not
necessary that” J.B.’s lack of consent “exist from the beginning of the course of
conduct as long as it is present during the course of conduct.”
Grayson, 824 So. 2d
at 816 (holding that defendant kidnapped hitchhiker even though victim voluntarily
entered defendant’s car); see also Mims v. State,
591 So. 2d 120, 128 (Ala. Crim.
App. 1991) (“Even if a victim voluntarily enters a room, a defendant can still be
found guilty of first degree kidnapping if the victim was then intentionally and
unlawfully confined or concealed against her will.”); Musgrove v. State,
519 So. 2d
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565, 581 (Ala. Crim. App.), aff’d
519 So. 2d 586 (Ala. 1986) (holding that
defendant was guilty of kidnapping in the first degree where victim voluntarily
entered the defendant's motel room and was then intentionally and unlawfully
confined against her will). Accordingly, the record shows that the kidnapping
began as early as the night J.B. and Dobbs purchased the pistol when Dobbs
prevented J.B. from leaving the hotel room.
ii. Using a firearm in connection with the kidnapping
For the kidnapping enhancement to apply however, Dobbs must have used
or possessed the firearm in connection with the kidnapping. U.S.S.G. §
2K2.1(b)(6). Dobbs contends that because the district court erred in failing to
identify exactly when the kidnapping occurred, it necessarily failed to find that
Dobbs possessed the firearm at the time of the commission of the kidnapping.
Thus, he argues, the cross reference could not apply. We disagree.
For the purposes of U.S.S.G. §§ 2K2.1(b)(6)(A) and (c)(1)(A), a defendant
is considered to have used a firearm in connection with another crime if the firearm
“facilitated, or had the potential of facilitating,” that offense. U.S.S.G. § 2K2.1,
cmt. (n.14(A)); see also United States v. Carillo-Ayala,
713 F.3d 82, 93 (11th Cir.
2013) (adopting the commentary’s definition of “in connection with”).
As discussed above, the record shows that Dobbs kidnapped his wife at the
hotel room when he prevented her from leaving through threats and intimidation.
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Dobbs does not dispute that he possessed a gun in the motel room. And J.B.’s fear
of the gun prevented her from leaving: when asked during the sentencing hearing if
she could have left the hotel room, she specifically stated, “No, he had a gun.”
Thus, the record indicates that the firearm facilitated or had the potential of
facilitating Dobbs’s abduction of J.B. See U.S.S.G. § 2K2.1, cmt. (n.14(A)). That
he may have kidnapped her before acquiring the gun does not affect the conclusion
that the kidnapping continued after he obtained it.
In summary, the record shows that Dobbs kidnapped J.B. and used the
firearm in connection with the crime. While Dobbs argued that J.B. was free to
leave the hotel room, his assertion, at best, presents one of two permissible views
of the evidence. See
Saingerard, 621 F.3d at 1343. Accordingly, the district court
did not clearly err when it found that Dobbs used the firearm in connection with
kidnapping J.B. and applied the cross-reference in U.S.S.G. § 2K2.1(c)(1)(A)
based on that finding.
AFFIRMED.
16
