USCA11 Case: 22-14124 Document: 26-1 Date Filed: 11/29/2023 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14124
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARNELL DONYA RICE, JR.,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:21-cr-00136-BJD-PDB-1
____________________
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2 Opinion of the Court 22-14124
Before WILLIAM PRYOR, Chief Judge, and ROSENBAUM and GRANT,
Circuit Judges.
PER CURIAM:
Darnell Rice appeals his sentence of 60 months of imprison-
ment imposed after he pleaded guilty to possessing and transferring
a machinegun,
18 U.S.C. §§ 922(o)(1), 924(a)(2), and making a false
statement in connection with the acquisition of a firearm,
id.
§§ 922(a)(6), 924(a)(2). Rice argues that the district court miscalcu-
lated his advisory guideline range in determining his base offense
level, United States Sentencing Guidelines Manual § 2K2.1(a)(4)(B),
and applying sentencing enhancements based on findings that his
offense involved at least 200 firearms, id. § 2K2.1(b)(1)(E), and that
he used a firearm in connection with another felony offense, id.
§ 2K2(b)(6)(B). We affirm.
I. BACKGROUND
After Rice pleaded guilty, the probation officer issued a
presentence investigation report describing the offense conduct.
Since as early as 2018, Rice had acted as an unlicensed firearms
dealer by making straw purchases from licensed firearms dealers
and selling the firearms for a profit. His two counts of conviction
concerned two controlled purchases in 2021.
On November 30, 2021, an undercover officer and confiden-
tial informant met Rice at his house and asked to buy two firearms.
Rice said it was late but offered to sell a Glock “switch,” which
could convert a Glock pistol to a machinegun. Rice explained that
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22-14124 Opinion of the Court 3
he usually sold the switch for $1,500 but offered sell it for $1,000 as
a holiday special. The undercover officer agreed and proposed that
Rice sell him a Glock pistol the next day at a total cost of $1,800.
Rice agreed and provided the switch to the undercover officer
without asking whether the undercover officer was a felon or oth-
erwise prohibited from possessing firearms.
On December 1, 2021, as planned, the undercover officer
met with Rice and provided him the remaining $800 cash for the
Glock pistol. An hour later, Rice purchased a Glock pistol for
$542.82 in cash from US Patriot, a licensed firearms dealer in Jack-
sonville, Florida. At the store, he filled out an “ATF Form 4473,”
on which he falsely affirmed that he was “the actual trans-
feree/buyer of the firearm(s) listed” on the form. He gave the
Glock pistol to the undercover officer later that day and asked the
undercover officer to show his driver’s license and sign a bill of sale.
A week later, law enforcement executed a search warrant at
Rice’s house. On seeing a van approach his house, Rice pulled a
loaded firearm from his waistband and aimed it at the van. After
the agents fired at Rice and ordered him to the ground, Rice com-
plied and tossed his firearm into the front yard. Agents found 23
firearms in the house, including a pistol with an obliterated serial
number, and 3,400 rounds of ammunition. Rice agreed to speak to
the agents and explained that, over the course of his life, he had
purchased between 15 and 20 firearms but owned only 5 or 6 fire-
arms. He stated that he sometimes, but not always, created a bill of
sale that included a declaration that the buyer was not a felon or
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4 Opinion of the Court 22-14124
prohibited from possessing firearms. He denied ever purchasing a
firearm for someone other than himself. When asked about his re-
cent purchase, he stated that he bought a Glock pistol for himself.
He explained that he intended to sell a prospective buyer one of his
own firearms, but when he showed the buyer a variety of available
firearms, the buyer happened to choose the new Glock pistol.
The presentence report stated that Rice had been inter-
viewed in 2019 by law enforcement about his firearms purchases.
On April 23, 2019, agents with the Bureau of Alcohol, Tobacco,
Firearms and Explosives interviewed Rice, who told them that he
would buy guns at stores, shows, and street sales at a good deal,
hold onto them until he ran into financial trouble, and then sell
them to make quick money. He stated that he started buying and
selling firearms at age 18, around 2012, and estimated that he had
bought and sold “hundreds” of firearms. He stated that he did not
keep firearms at his house because of a recent domestic dispute
with his ex-girlfriend. He also stated that he had sold a gun last
week and produced about 35 bills of sale. Based on two of them,
agents were able to trace a firearm that Rice bought and sold on
June 12, 2017, to a crime that occurred in Maryland. Agents also
traced a firearm that Rice sold to a local rap artist on June 15, 2018,
to a crime that occurred in Florida.
The presentence report also stated that Rice had purchased
77 firearms from US Patriot alone, and he sometimes bought as
many as 4 firearms at a time and bought many identical models,
mostly with cash. Between June 2017 and March 2021, three
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22-14124 Opinion of the Court 5
licensed firearms dealers in Jacksonville reported that Rice made
nine multiple-firearms purchases. Law enforcement had been able
to identify Rice as the original purchaser of 24 firearms that were
later involved in a crime or criminal investigation. Financial analy-
sis of Rice’s banking activities revealed that, despite being 26 years
old and earning a maximum of $17.50 per hour as a security guard,
his net worth was approximately $219,000 and he had made about
$161,084 in automatic teller machine, in-person, and online pay-
ment application deposits.
The report provided a base offense level of 20, U.S.S.G.
§ 2K2.1(a)(4)(B), because the offense involved a semiautomatic fire-
arm capable of accepting a large capacity magazine and a ma-
chinegun, Rice was a “prohibited person” when he committed the
offense, and he distributed the firearms with reason to believe that
they would be transferred to a prohibited person. The report ex-
plained that Rice was a prohibited person because he was the sub-
ject of a temporary domestic violence injunction between March
14, 2019, and September 2019. The report did not explain whether
the state court order amending the injunction on March 28, 2019,
to allow Rice to possess firearms for work purposes affected his sta-
tus as a prohibited person.
The presentence report applied a ten-level enhancement be-
cause the offense involved 200 or more firearms, based on Rice’s
statement that he had bought and sold “hundreds” of firearms since
he turned 18. Id. § 2K2.1(b)(1)(E). But it reduced the enhancement
to nine levels because the cumulative offense level from
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6 Opinion of the Court 22-14124
subsections (b)(1) through (b)(4) was capped at 29. Id. § 2K2.1(b)(4).
For this reason, the four-level enhancement that would have ap-
plied based on Rice’s possession of a firearm with an obliterated
serial number was reduced to zero. Id. The report also applied a
four-level enhancement for the use of a firearm in connection with
another felony offense because Rice aiming a loaded firearm at law
enforcement officers in the van constituted aggravated assault. Id.
§ 2K2.1(b)(6)(B). The report applied a two-level reduction for ac-
ceptance of responsibility. Id. § 3E1.1(a).
Rice lodged several objections to the report. He objected to
his previous firearms transactions being “relevant conduct” and de-
nied that he was “engaged in the business of dealing firearms.” He
objected to the number of firearms supporting his nine-level en-
hancement, id. § 2K2.1(b)(1)(E), because those earlier transactions
were not part of his instant offenses of conviction. He objected to
the four-level enhancement for the use of a firearm in connection
with another felony offense, id. § 2K2.1(b)(6)(B), because he was
not charged with aggravated assault, and this incident was irrele-
vant to the offenses of conviction. He denied owning the firearm
with an obliterated serial number, id. § 2K2.1(b)(4).
Rice also objected that he did not meet the criteria to sup-
port the base offense level, id. § 2K2.1(a)(4). He argued that the of-
fense did not involve a firearm capable of accepting a large-capacity
magazine. He argued that he was not a “prohibited person” be-
cause the temporary domestic violence injunction expired in Sep-
tember 2019, over two years before the instant offenses of
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22-14124 Opinion of the Court 7
conviction. And he argued that there was no evidence that he knew
or had reason to believe that his offense would result in the transfer
of a firearm to a prohibited person, especially because he had re-
quired the undercover officer to produce his driver’s license and
sign a bill of sale certifying that he was a lawful gun owner who
had never been convicted of a felony.
At sentencing, Rice conceded that the Glock switch qualified
as a device designed to convert a semiautomatic pistol into a ma-
chinegun,
26 U.S.C. § 5845. But he argued that he was not a pro-
hibited person, nor did he have reason to believe he was selling to
a prohibited person, so his base offense level was incorrect. He also
argued that he did not use a firearm in connection with another
felony offense. He asserted that, when he was working on his car
in his front yard, he saw an unmarked van approach with its side
door open and the barrel of a rifle sticking out of the door, so he
pulled out his firearm and pointed it at the van because he per-
ceived it as a threat. He stated that, after the occupants of the van
identified themselves as law enforcement, he tossed his firearm and
laid on the ground. He argued that no charges were filed against
him for pointing the firearm at the van.
The government responded that Rice carried a loaded fire-
arm to protect the inventory in his house, and it did not believe
that Rice was unaware that he was pointing a firearm at law en-
forcement because the agents were wearing marked vests and
there were five cars in a row, including a marked police car. After
the district court stated that it mattered whether Rice believed he
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8 Opinion of the Court 22-14124
was in fear when the vehicles approached, the government invited
Rice to testify on this issue, and Rice agreed.
Rice testified that he was working on a car in his front yard
when he saw an “unmarked minivan with a shoe and a rifle barrel
of . . . a[n] AR 15-15 hanging out of the side door.” He told the per-
son with him to get down because he thought that there was “go-
ing to be a shooting.” When he saw the rifle barrel raise, he reached
for the firearm in his waistband and ducked behind the vehicle he
was working on. Because the van had dark windows, he did not
realize there were law enforcement officers in bulletproof vests in-
side until the van was directly in front of his house, at which time
he got on the ground and threw the firearm into the yard. The
other vehicles arrived only after he was handcuffed. On cross-ex-
amination, the government challenged Rice’s credibility, including
his record of untruthfulness on the Bureau’s forms.
The district court overruled all of Rice’s objections. The dis-
trict court determined that the presentence report correctly de-
scribed the scope of his relevant conduct because his course of con-
duct was “lengthy and sufficiently imbued with evidence of gun
dealing.” The district court overruled his objection to the number
of firearms because the record was “replete with sufficient evidence
to establish the number.” The district court found that Rice had
committed the felony offense of aggravated assault when he aimed
a firearm at law enforcement agents because it disbelieved his tes-
timony that he acted in self-defense. And the district court agreed
with the probation officer that a base offense level of 20 applied.
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22-14124 Opinion of the Court 9
The district court granted the government’s motion for a
third-level reduction based on Rice’s timely guilty plea. U.S.S.G.
§ 3E1.1(b).
Rice’s total offense level became 30 and his advisory guide-
line range became 97 to 121 months of imprisonment. Based on his
status as a first-time offender, age, and community ties, the district
court varied downwards and sentenced him to 60 months of im-
prisonment.
II. STANDARD OF REVIEW
We review the interpretation and application of the Sentenc-
ing Guidelines de novo, and we review underlying findings of fact
for clear error. United States v. Jackson,
997 F.3d 1138, 1140 (11th
Cir. 2021). For a factual finding to be clearly erroneous, we must
be “left with a definite and firm conviction that the district court
made a mistake.” United States v. Smith,
821 F.3d 1293, 1302 (11th
Cir. 2016) (quotation marks omitted). A finding of fact cannot be
clearly erroneous just because the factfinder chose between two
permissible views of the evidence.
Id.
III. DISCUSSION
We divide our discussion in three parts. First, we address
Rice’s base offense level. Second, we address the finding of the
number of firearms involved in his offense. Third, we address the
finding that he used or possessed a firearm in connection with an-
other felony offense.
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10 Opinion of the Court 22-14124
A. The district court did not err in determining Rice’s base offense
level.
Rice argues that his base offense level should have been 18
instead of 20 because, at the time of the instant offenses of convic-
tion, he was not a prohibited person, nor did he know or have rea-
son to believe that his offense would result in the transfer of a fire-
arm to a prohibited person. We disagree.
Section 2K2.1(a)(4)(B) provides that a base offense level of
20 applies if the:
(i) offense involved a (I) semiautomatic firearm
that is capable of accepting a large capacity magazine;
or (II) a firearm that is described in
26 U.S.C.
§ 5845(a); and
(ii) defendant (I) was a prohibited person at the
time the defendant committed the instant offense; (II)
is convicted under
18 U.S.C. § 922(d); or (III) is con-
victed under
18 U.S.C. § 922(a)(6) or § 924(a)(1)(A)
and committed the offense with knowledge, intent,
or reason to believe that the offense would result in
the transfer of a firearm or ammunition to a prohib-
ited person.
U.S.S.G. § 2K2.1(a)(4)(B). Rice concedes that his offense involved a
firearm that is described in
26 U.S.C. § 5845(a), so the only issue is
whether he meets any of the three criteria listed in subsection (ii).
The district court did not err by determining that a base of-
fense level of 20 applied because Rice was aware of at least a fair
probability that he was selling a Glock and switch to a prohibited
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22-14124 Opinion of the Court 11
person. Two individuals met with him at his house asking for two
firearms that same day. Despite Rice’s later explanation to law en-
forcement that he possessed a variety of firearms available for sale,
Rice told the undercover officer that it was “too late in the day.”
After striking a deal to sell his switch that day and then sell a Glock
pistol the next day, Rice bought the Glock pistol from a licensed
firearms dealer for $542.82 and charged the undercover officer
$800, a significant mark-up of about 50 percent over market price
for which he sought no explanation. Although Rice contends that
he created a bill of sale affirming that the buyer was not a prohib-
ited person, Rice made no attempt to confirm whether the under-
cover officer was a prohibited person before he handed over the
switch for $1,000 the day before creating the bill of sale, or before
he accepted $800 from the undercover officer in order to carry out
the straw purchase. And agents told Rice during the 2019 interview
that several of the firearms he sold had since been recovered by
police, so he was aware of the risks of being a straw purchaser. Be-
cause Rice had reason to believe his offense would result in a fire-
arm being transferred to a prohibited person, a base offense level
of 20 applied regardless of whether Rice was a prohibited person.
See U.S.S.G. § 2K2.1(a)(4)(B).
B. The district court did not clearly err in finding that Rice’s offense in-
volved at least 200 firearms.
Rice argues that the district court erred in finding the num-
ber of firearms involved because it relied on his statement that he
had bought and sold “hundreds” of firearms, without determining
which firearms were “unlawfully” distributed. He argues that it is
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12 Opinion of the Court 22-14124
not unlawful to sell a firearm without a license, and the district
court erred in finding Rice was unlawfully engaged in the business
of dealing firearms without a license,
18 U.S.C. § 922(a)(1). We dis-
agree.
Rice’s “relevant conduct” encompasses “all acts and omis-
sions committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). The application note to section 2K2.1(b)(1) in-
structs that the number of firearms should be calculated by count-
ing “only those firearms that were unlawfully sought to be ob-
tained, unlawfully possessed, or unlawfully distributed, including
any firearm that a defendant obtained or attempted to obtain by
making a false statement to a licensed dealer.” U.S.S.G. § 2K2.1
cmt. n.5.
The district court did not clearly err in finding that Rice’s
relevant conduct as an unlicensed firearms dealer, culminating in
the two controlled purchases in November and December 2021,
involved at least 200 firearms. Despite Rice’s contention that he is
only an avid firearms enthusiast, the government presented evi-
dence that his actions were more extensive than that of a hobbyist.
In addition to admitting that he had bought and sold “hundreds” of
firearms since turning 18 to make quick money, the government
presented evidence that he had purchased 77 firearms from US Pa-
triot alone, yet only 3 of those firearms were still in his possession
when he was arrested. There was also uncontested evidence that
he had purchased the same firearm model as many as nine times,
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22-14124 Opinion of the Court 13
and he frequently purchased multiple firearms in a single transac-
tion at three different licensed firearms dealers in Jacksonville. And
the financial analysis of Rice’s bank account revealed significant
cash deposits of approximately $150,000 between 2018 and 2021,
and that he owned his home and four vehicles outright, further
supporting the finding that Rice had been engaged in the business
of unlawfully selling hundreds of firearms over the course of sev-
eral years predominantly to earn a profit. See
18 U.S.C.
§§ 921(a)(21)(C), (a)(22).
C. The district court did not clearly err in finding that Rice used or pos-
sessed a firearm in connection with another felony offense.
Rice argues that the district court erred in finding that his
pointing of a loaded firearm at the van containing law enforcement
officers supported the enhancement. He argues that his possession
was not unlawful, nor was it part of the same course of conduct or
common plan as his offenses of conviction. We disagree.
A four-level enhancement applies if the defendant “used or
possessed any firearm or ammunition in connection with another
felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The application notes in-
struct that, to determine whether this subsection applies, the
threshold inquiry is whether the two offenses were “part of the
same course of conduct or common scheme or plan.” Id. § 2K2.1
cmt. n.14(E)(ii). Unless otherwise specified by the Guidelines,
“other offenses must be within the relevant conduct of the charged
offense.” United States v. Williams,
431 F.3d 767, 772 (11th Cir.
2005). But the firearm need not directly facilitate the underlying
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14 Opinion of the Court 22-14124
offense to be possessed “in connection with” the other offense.
United States v. Rhind,
289 F.3d 690, 695 (11th Cir. 2002).
The district court did not clearly err in finding that Rice used
or possessed the firearm in connection with another felony offense.
U.S.S.G. § 2K2.1(b)(6)(B). Rice does not dispute that aggravated as-
sault is a felony under Florida law. Because it was plausible that he
was not acting in self-defense, the district court did not clearly err
in disbelieving his testimony and instead finding that he committed
the offense of aggravated assault. See Smith,
821 F.3d at 1302. Rice
also does not argue that the “other felony offense” must be charged
or result in a conviction to be considered relevant conduct support-
ing the enhancement. And at sentencing, the district court agreed
with the government’s argument that Rice’s use of a firearm was
relevant to the underlying offenses of conviction because it was
part of his ongoing course of conduct in operating as an unlicensed
firearms dealer out of his house, where he stored dozens of fire-
arms and thousands of rounds of ammunition. The district court
did not clearly err in finding that his use of a firearm outside of his
house, one week after the controlled buys took place at that same
house, was relevant conduct.
Because the district court did not err in determining Rice’s
base offense level or applying the enhancements, his sentence of 60
months of imprisonment is reasonable.
IV. CONCLUSION
We AFFIRM Rice’s convictions and sentence.
