United States v. EtchisonBrown ( 2023 )

Case: 22-10892 Document: 00516959887 Page: 1 Date Filed: 11/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 7, 2023
No. 22-10892
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Davaudrick Antron EtchisonBrown,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-612-1
______________________________
Before Wiener, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Davaudrick Antron EtchisonBrown pleaded guilty to possession of a
firearm after a felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He was sentenced to 85 months of imprisonment and three years
of supervised release. EtchisonBrown argues that § 922(g)(1) is
unconstitutional, that the district court erred by enhancing his base offense
by concluding his prior conviction for Texas robbery qualifies as a crime of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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violence, and that the district court erred by not giving him a reduction for
acceptance of responsibility. We AFFIRM.
I
In August 2019, EtchisonBrown was driving in Irving, Texas. He
attempted to move into the middle lane, almost hit a passing vehicle, and
swerved to avoid the collision. He then pulled alongside the vehicle, pointed
a gun out his window, and shot. The vehicle was later found to have been hit
thirteen times—one of the bullets even grazed the driver’s head.
EtchisonBrown fled the scene.
Officers detained him a few days later through a traffic stop. He
consented to a search of his vehicle, and the officers recovered a Glock,
Model 17, 9-millimeter pistol from under the driver’s seat that was loaded
with a 50 round drum magazine. EtchisonBrown confirmed that the firearm
belonged to him, and shell casings recovered from the shot-at vehicle
matched the firearm found in EtchisonBrown’s vehicle.1
A federal grand jury charged EtchisonBrown with possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).2
EtchisonBrown was granted pretrial release. The conditions included
that he must: (1) “not violate federal, state, or local law while on release;”
(2) “not use or unlawfully possess a narcotic drug or other controlled
substance defined in 21 U.S.C. § 802, unless prescribed to [him] by a licensed
_____________________
1
The Glock was determined not to have been manufactured in the state of Texas,
to have traveled in interstate or foreign commerce to be present in Texas, and not to have
been stolen.
2
EtchisonBrown has one previous felony conviction for robbery from 2013 for
stealing a woman’s cell phone and assaulting her with three accomplices.
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medical practitioner;” and (3) “submit to testing for a prohibited substance
if required by the pretrial services office or supervising officer.” Throughout
2020, EtchisonBrown repeatedly violated the above conditions by failing to
submit drug tests, missing drug treatment, and testing positive for
marijuana.3 This conduct ultimately led the court to revoke his pretrial
release and to remand him to custody in January 2021.
In July 2021, EtchisonBrown pleaded guilty to being a felon in
possession of a firearm with no plea agreement. The district court accepted
his plea.
The presentence report (PSR) recommended a base offense level of
22 under U.S.S.G. § 2K2.1(a)(3) because EtchisonBrown was “in possession
of a semiautomatic firearm that can accept a large capacity magazine, and the
defendant was convicted of Robbery, a crime of violence, on March 1, 2013.”
The PSR did not recommend giving EtchisonBrown a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) because “he
continued to engage in criminal conduct while on pretrial release.”
EtchisonBrown objected to the PSR, arguing that he “entered his
plea of guilty after the revocation of his pretrial release, knowing that
Probation would most likely suggest a denial of the reduction for acceptance
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3
He failed to submit a urine specimen on June 19, July 17, and July 20, and tested
positive for marijuana on June 22, 2020. He tested positive for marijuana again on August
5 and August 11. In response to these violations, the court modified his conditions to
include participation in outpatient substance abuse therapy and counseling.
EtchisonBrown then tested positive for marijuana again on September 17. He was
permitted to remain on pretrial release after this violation. But on September 30, after
testing positive for marijuana, he was referred to substance abuse treatment. On October 7,
he was arrested for pending state warrants, and while he was incarcerated, he missed drug
treatment sessions. Once he was released, EtchisonBrown failed to report for treatment
sessions on November 4 and 18 and December 2 and 16. And on November 20,
EtchisonBrown failed to submit a drug test.
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of responsibility,” and that “[t]his is significant evidence that [he] has shown
remorse for both the offense of conviction and for violating conditions of
pretrial release.” Thus, he said he should receive the § 3E1.1(a) reduction.
He also made a policy argument that to not give the acceptance-of-
responsibility reduction “is to simply encourage those who have not
succeed[ed] at pretrial release to go to trial” because they lose their only
benefit “outside of the moral importance and self-value of accepting
responsibility.”
At sentencing he raised this same argument. The district court
acknowledged the argument, but “after digging through the case law and
getting to the bottom of it,” concluded that “if there is a violation for some
other commission of a crime, while on pretrial release, then that does
constitute a lack of acceptance of responsibility.” The district court viewed
“the conduct that caused his revocation from pretrial release to amount to a
lack of acceptance of responsibility” and overruled the objection.
The district court adopted the findings and conclusions from the PSR
and concluded the total offense level was 26. The guideline range for
imprisonment was accordingly 70 to 87 months. The district court imposed
a sentence of 85 months and a three-year term of supervised release. It
explained that the length of the sentence was mainly driven by the serious
nature and circumstances of EtchisonBrown’s offense but that
EtchisonBrown’s good performance in custody, his supportive family, and
his troubled background persuaded it not to vary upward.
EtchisonBrown timely appealed.
II
EtchisonBrown raises four issues on appeal. He argues that 18 U.S.C.
§ 922(g)(1) is unconstitutional because (1) it exceeds Congress’s enumerated
powers under the Commerce Clause, and (2) it violates the Second
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Amendment, (3) that his 85-month sentence was reversible error
because Texas robbery by causing injury is not a “crime of violence” under
U.S.S.G. § 5B1.2, and (4) he should have been granted a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. We address the
constitutional challenges first.
A
Because EtchisonBrown did not raise either constitutional challenge
to § 922(g)(1) before the district court, we review only for plain error. United
States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014). He must therefore show
that the error is clear or obvious and that it affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes those showings,
we have discretion to the correct the error if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (alteration
adopted) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
EtchisonBrown maintains that 18 U.S.C. § 922(g)(1) exceeds
Congress’s enumerated powers under United States v. Lopez, 514 U.S. 549(1995). He acknowledges that we have consistently upheld the
constitutionality of § 922(g)(1) under the Commerce Clause. See United
States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (collecting cases); see also
United States v. Perryman, 965 F.3d 424, 426 (5th Cir. 2020). And he makes
no argument that there has been an intervening change in the law that permits
a subsequent panel to reconsider the issue. Accordingly, we are bound by our
prior precedents and conclude that this argument is foreclosed. See Jacobs v.
Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
EtchisonBrown also argues that the Supreme Court’s recent decision
in New York State Rifle & Pistol Ass’n, Inc v. Bruen suggests that § 922(g)(1)
is unconstitutional under the Second Amendment. See 142 S. Ct. 2111 (2022).
In Bruen, the Supreme Court established a new test for assessing the
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constitutionality of firearm regulations under the Second Amendment:
“[W]hen the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects the conduct. . . . [T]he
government must demonstrate that the regulation is consistent with this
Nation’s historical tradition of firearm regulation.” Id. at 2126.
Before Bruen, we held that § 922(g)(1) does not violate the Second
Amendment. See, e.g., United States v. Darrington, 351 F.3d 632, 634 (5th Cir.
2003). But the constitutionality of § 922(g)(1) after Bruen is not clear or
obvious. In Bruen itself, Justice Kavanaugh concurred and indicated that
“nothing in [Bruen] should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill.”
Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (alteration adopted)
(quoting District of Columbia v. Heller, 554 U.S. 570, 626 (2008) and
McDonald v. City of Chi., Ill., 561 U.S. 742, 786 (2010)). But the circuits that
have already faced this question have come to different conclusions. For
example, the Third Circuit concluded that “the [g]overnment has not shown
that the Nation’s historical tradition of firearms regulation supports
depriving [felons] of [their] Second Amendment right to possess a firearm.”
Range v. Att’y Gen., 69 F.4th 96, 103–06 (3d Cir. 2023). However, the Eighth
Circuit relied on Heller and McDonald, as well as Justice Kavanaugh’s Bruen
concurrence, to reach the contrary conclusion that “[t]he longstanding
prohibition on possession of firearms by felons is constitutional.” United
States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023).
“There is no plain error if the legal landscape at the time showed the
issue was disputed . . . .” United States v. Rodriguez-Parra, 581 F.3d 227, 230
(5th Cir. 2009). On review for plain error, “a lack of binding authority is often
dispositive.” United States v. McGavitt, 28 F.4th 571, 577 (5th Cir. 2022)
(citation and internal quotation marks omitted). “[E]ven where an argument
merely requires extending existing precedent, the district court’s failure to
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do so cannot be plain error.” Jimenez v. Wood Cnty, Tex., 660 F.3d 841, 847
(5th Cir. 2011) (en banc). Because the constitutionality of § 922(g)(1) after
Bruen is far from settled and there is no controlling authority, the district
court’s application of § 922(g)(1) to EtchisonBrown was not plain error.
B
EtchisonBrown claims that the district court erred in sentencing him
to an 85-month term of imprisonment because it calculated his base offense
level incorrectly by concluding that his prior Texas robbery conviction was a
“crime of violence.” When a defendant has been previously convicted of an
offense that qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(2) and
commits an offense that involved a semiautomatic firearm capable of
accepting a large capacity magazine, the guidelines set a higher base offense
level. U.S.S.G. § 2K2.1(a)(3). EtchisonBrown’s base offense level was 22.
Without the “crime of violence” finding, he contends that it should have
been 20 under U.S.S.G. § 2K2.1(a)(4)(B). Because EtchisonBrown did not
challenge his base offense level before the district court, we review only for
plain error. Howard, 766 F.3d at 419.
Texas is unique in that it includes the mens rea of recklessness in its
definition of robbery.4 EtchisonBrown admits that this court has previously
held that Texas robbery fits within the “generic” meaning of “robbery” in
the Sentencing Guidelines and that it qualifies as a “crime of violence” under
a similar Sentencing Guideline. See United States v. Santiesteban-Hernandez,
469 F.3d 376, 381 (5th Cir. 2006). He also acknowledges that this holding was
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4
The Texas Penal Code states that a person commits robbery “if, in the course of
committing theft . . . and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury
or death.” Tex. Penal Code § 29.02(a)(1).
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recently reaffirmed in the context of U.S.S.G. § 4B1.2’s use of the term
“crime of violence” in United States v. Adair, 16 F.4th 469, 471 (5th Cir.
2021), cert. denied, 142 S. Ct. 1215 (2022).
Even so, EtchisonBrown argues that the issue is not foreclosed. He
characterizes Santiesteban-Hernandez as having adopted a broader definition
of generic robbery in order to encompass Texas’s definition, and he contends
that recent Supreme Court precedent5 reveals that Santiesteban-Hernandez is
“likely incorrect” because generic robbery does not include recklessness.
“[W]e follow the well-settled rule of orderliness: Three-judge panels
abide by a prior Fifth Circuit decision until the decision is overruled,
expressly or implicitly, by either the United States Supreme Court or by the
Fifth Circuit sitting en banc.” Gahagan v. U.S. Citizenship & Immigr. Servs.,
911 F.3d 298, 302 (5th Cir. 2018) (alterations adopted) (internal quotation
marks and citation omitted). In Adair, we considered Santiesteban-Hernandez
and affirmed that there we “recognize[d] that the ‘generic definition of
robbery did not require a particular mens rea’” and that Texas robbery and
generic robbery “substantially correspond,” which could not be the case if
the two offenses “do not require the same mens rea.” Adair, 16 F.4th at 471
(quoting United States v. Ortiz-Rojas, 575 F. App’x 494, 495 (5th Cir. 2014)
(per curiam) (unpublished)).
A suggestion that one of our holdings is “likely incorrect” does not
present an occasion for us to revisit our precedent. Our consideration of the
issue and reaffirmance of Santiesteban-Hernandez in Adair followed all of the
cases EtchisonBrown cites. Adair, 16 F.4th at 470–71. No intervening
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5
He cites the following Supreme Court decisions: Samuel Johnson v. United States,
76 U.S. 591 (2015); Esquivel-Quintana v. Sessions, 581 U.S. 385 (2017); Stokeling v. United
States, 139 S. Ct. 544 (2019); and Borden v. United States, 141 S. Ct. 1817 (2021).
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Supreme Court decision has explicitly or implicitly overruled our holding.
We are accordingly bound by our prior precedent. The district court’s
selection of the base offense level was not plain error.
C
Finally, EtchisonBrown argues that the district court did not give him
a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1,
comment n.3, because it erroneously believed that he had violated the
conditions of his pretrial release after pleading guilty, when his violations all
occurred before he pleaded guilty. “[D]eterminations regarding whether the
defendant is entitled to a reduction for acceptance of responsibility are
reviewed with particular deference.” United States v. Lord, 915 F.3d 1009,
1017 (5th Cir. 2019). We “will affirm the denial of a reduction for acceptance
of responsibility unless it is ‘without foundation, a standard of review more
deferential than the clearly erroneous standard.’” Id. (quoting United States
v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam)).
EtchisonBrown contends that the district court erroneously believed
that he had violated the conditions of his pretrial release after pleading guilty
because of two statements it made at sentencing. Specifically, the district
court stated that “playing ball can certainly constitute criminal offensive
behavior that happens after there has been a rearraignment,” and that it
understood “not all judges agree with that line of thinking that post-
rearraignment conduct that is unlawful can constitute a lack of acceptance.”
While the district court erroneously referred to post-rearraignment
conduct twice, context shows that the district court understood that
EtchisonBrown violated his pretrial release conditions prior to pleading
guilty. The district court specifically discussed the timeline and observed that
while EtchisonBrown was on supervised release he “was skipping drug tests
or testing positive for marijuana,” but “post-rearraignment,” his conduct
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was “stellar.” It also received a written objection from EtchisonBrown
arguing that he should receive the reduction because all his violations
occurred before he pleaded guilty and heard argument on the objection right
before making this statement. After hearing argument on that objection at
sentencing, the district court explained that it recognized the policy
arguments about whether to give acceptance of responsibility to defendants
who violate their pretrial release conditions. However, after reviewing the
caselaw, it “came down on the line of thinking that if there is a violation for
some other commission of a crime, while on pretrial release, then that does
constitute a lack of acceptance of responsibility.”
It is undisputed that EtchisonBrown repeatedly violated his pretrial
release conditions by failing to submit drug tests, missing drug treatment, and
testing positive for marijuana. The entry of a guilty plea before trial “does
not entitle the defendant to a reduction as a matter of right.” United States v.
Rickett, 89 F.3d 224, 227 (5th Cir. 1996). A district court may “consider any
violation of the defendant’s pretrial release conditions” when deciding
whether to grant a reduction for acceptance of responsibility and “[i]t is not
reversible error for the district court to deny a § 3E1.1(a) reduction where the
defendant broke the law while on bond.” United States v. Hinojosa-Almance,
977 F.3d 407, 411 (5th Cir. 2020). Because of EtchisonBrown’s violations of
his conditions of release, there was foundation for the district court to deny
the acceptance of responsibility reduction. Lord, 915 F.3d at 1017.
We AFFIRM.
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