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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14574
Non-Argument Calendar
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D.C. Docket No. 2:19-cr-00511-RDP-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELON RAEMON BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 30, 2021)
Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
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Kelon Brown appeals his conviction and sentence after pleading guilty to
possessing a machine gun, in violation of
18 U.S.C. § 922(o). He argues that the
district court erred in denying his motion to suppress evidence obtained from a
search of the car. He further argues that the district court erred in applying a two-
level enhancement to his base offense level under U.S.S.G. § 2K2.1(b)(4)(A)
because his possession of a stolen gun was not felonious under Alabama law at the
time of the offense.1 The government contends that Brown waived any challenge
to the denial of his motion to suppress by entering an unconditional guilty plea and
that his challenge to the enhancement is foreclosed by the plain language of the
guidelines. After review, we agree with the government that Brown’s challenge to
the motion to suppress ruling was waived by his guilty plea and that his guidelines
challenge is without merit.
I. Background
We start with a recitation of the relevant facts. On November 20, 2018, at
approximately 1:45 p.m., the Deputy Chief of Police for the Fairfield Police
Department responded to a reported shooting near Willie Mays Park in Fairfield,
Alabama. The officer began interviewing witnesses who told him that they
observed the occupants of a white Dodge Charger and a gray Chevy Malibu
1
Although Brown’s predicate charge was unlawful possession of a machine gun, the
district court applied the sentencing enhancement for his simultaneous possession of a rifle that
had been reported stolen from a gun store in Tuscaloosa, Alabama.
2
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exchange gunfire. About a minute or two into the interview, the officer then saw
what he perceived to be a gray Chevy Malibu 2 pass the officer’s location, with
what he believed to be bullet holes in the rear bumper and rear passenger area. The
officer radioed an instruction to all other officers in the area to stop the vehicle.
Shortly thereafter, another officer pulled over the Chevy Malibu.
By the time the first officer arrived at the scene, the officer who initiated the
traffic stop had ordered Brown out of his vehicle and instructed him not to move
and to show his hands. Instead of complying, Brown began to retreat, despite the
officers’ continued instructions for him to remain still. An officer followed Brown
and attempted to grab him, but Brown broke free and began to flee in earnest,
running down the street into an open field. With the officer pursuing him on foot,
Brown fled in the direction of a creek bed, where he eventually ran into other
responding officers, at which point Brown gave himself up. The officers arrested
Brown for attempting to elude the police.
The officers towed the Chevy Malibu.3 While inventorying the vehicle, the
officer discovered a machine gun underneath the driver’s seat, a rifle underneath
2
Testimony at the suppression hearing established that the color of the car was
“champagne brown.” Nevertheless, the district court remarked that pictures of the vehicle
“look[ed] gray or silver to me, not brown.” Defense counsel responded “[i]t does. But in
person, the car is visibly champagne.”
3
The Fairfield Police Department policy provides that “[a]ll vehicles in possession of an
arrestee shall be towed unless the owner approves its release to another person at the scene.”
3
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the front passenger’s seat, and ammunition. Thereafter, a federal grand jury
indicted Brown on one count of knowingly possessing a machine gun, in violation
of
18 U.S.C. § 922(o), and one count of knowingly possessing an automatic
firearm not registered to him, in violation of
26 U.S.C. § 5861(d).
Brown filed a motion to suppress the evidence obtained from the search of
the Chevy Malibu, arguing that the officers violated his Fourth Amendment rights
by unreasonably seizing and searching the car without a warrant or probable cause.
Following an evidentiary hearing, the district court denied the motion.
On July 15, 2020, Brown appeared before the court to enter a plea. Because
it was unclear whether Brown wanted to pursue the plea agreement with the
government or proceed with a “blind plea,” the district court continued the hearing
so that Brown would have additional time to discuss his options with his counsel.
Two weeks later, Brown again appeared before the court and pleaded guilty
without a plea agreement to count one of the indictment. At the change-of-plea
hearing, the district court confirmed that Brown had conferred with his attorney,
that he was not under the influence or mentally, emotionally, or physically
impaired, and that he understood the proceedings. The court explained to Brown
the trial rights he would be giving up by pleading guilty, and Brown indicated that
Brown did not own the vehicle. Rather, records indicated that it was registered to a female, who
was not on the scene.
4
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he understood. The district court then confirmed that Brown understood that the
government made no agreements or promises in connection with his blind plea,
and that he was not coerced into entering his plea. Brown confirmed that he
understood, and that he was pleading guilty because he was guilty.
After reviewing the charges, factual basis, and sentencing consequences with
Brown, the district court asked whether he understood that: “If you plead guilty
today . . . then you would not be able to go back and change your mind after that.
. . . [Y]our guilty plea would stick even if you changed your mind after that.”
Brown answered “yes.” Determining that Brown intelligently, knowingly, and
voluntarily pled guilty, the district court accepted his plea and found him guilty of
count one. At no point during the change-of-plea hearing did anyone mention
preserving Brown’s right to appeal the ruling on the motion to suppress.
The United States Probation Office prepared a presentence investigation
report (“PSI”) and recommended a two-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(4)(A) because the rifle found in Brown’s car was stolen. The Office
calculated Brown’s base offense level at 18 in accordance with section 2K2.1 of
the Sentencing Guidelines. Brown’s resulting guidelines range was 37 to 46
months’ imprisonment.
At sentencing, Brown objected to the § 2K2.1(b)(4)(A) enhancement for
possession of a stolen firearm under section 2K2.1(b)(4)(A). He argued that the
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enhancement applied only if the possession of the firearm in question was a felony
under federal or state law, and, under Alabama law at the time of his offense,
simple possession of the rifle was a misdemeanor. Likewise, he contended that,
because of his personal characteristics and conduct, he did not run afoul of any
federal criminal statute that would make his simple possession of the rifle a felony
offense. Nevertheless, the district court overruled the objection, noting that there
was no support “in the guidelines language” for Brown’s argument.
Accordingly, the district court adopted the PSI and sentenced Brown to 37
months’ imprisonment, the low end of the guidelines range, to be followed by three
years’ supervised release.4 Brown timely appealed.
II. Discussion
A. Brown’s Motion to Suppress
Brown argues that the district court erred in denying his motion to suppress.
In response, the government asserts that Brown waived this issue when he entered
his unconditional blind guilty plea. For the reasons that follow, we agree with the
government.
Whether a defendant’s entry of a guilty plea waives an issue that he raises on
appeal is a question of law that we review de novo. United States v. Patti,
337
F.3d 1317, 1320 n.4 (11th Cir. 2003). Generally, a voluntary, unconditional guilty
4
The government moved successfully to dismiss count two of the indictment.
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plea waives a defendant’s appeal of all non-jurisdictional defects in the
proceedings, including the district court’s ruling on a motion to suppress.
Id. at
1320.; see also United States v. Charles,
757 F.3d 1222, 1227 n.4 (11th Cir. 2014).
Thus, a defendant who wishes to preserve review of an adverse pre-plea
determination such as a motion to suppress must enter a conditional plea pursuant
to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. 5 United States v.
Pierre,
120 F.3d 1153, 1155 (11th Cir. 1997). Brown failed to enter a conditional
guilty plea. Hence, as long as his plea was knowing and voluntary, he has waived
his right to appeal the motion to suppress.6 Charles, 757 F.3d at 1227 n.4.
Rule 11(b) of the Federal Rules of Criminal Procedure “sets out procedures
that district courts must follow when accepting guilty pleas” to ensure that a
defendant’s plea is entered voluntarily and knowingly. United States v.
Presendieu,
880 F.3d 1228, 1238 (11th Cir. 2018). Before accepting a guilty plea,
the district court “must ensure that the three core concerns of Rule 11 . . . have
been met: (1) the guilty plea must be free from coercion; (2) the defendant must
understand the nature of the charges; and (3) the defendant must know and
5
Rule 11(a)(2) provides that “[w]ith the consent of the court and the government, a
defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right
to have an appellate court review an adverse determination of a specified pretrial motion. A
defendant who prevails on appeal may then withdraw the plea.”
6
We note that Brown does not challenge the voluntariness of his plea on appeal.
Nevertheless, in order to determine whether the government’s assertion that this claim is waived
by Brown’s plea is correct, we must examine the voluntariness of the plea.
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understand the consequences of his guilty plea.” United States v. Lejarde-Rada,
319 F.3d 1288, 1289 (11th Cir. 2003) (quotation omitted). “There is a strong
presumption that the statements made during the [plea] colloquy are true.” United
States v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994).
We need not reach the merits of Brown’s Fourth Amendment challenge to
his conviction because he intelligently, knowingly, and voluntarily entered a blind,
unconditional plea. Brown’s responses to the district court’s plea colloquy
establish that his plea was knowing and voluntary. Pursuant to Rule 11(b), the
district court confirmed that Brown’s plea was not the product of coercion and that
he knew and understood the nature of the charges against him, and the trial and
sentencing consequences of his plea. Further, Brown confirmed that he was
pleading guilty because he was in fact guilty, and we presume the truth of that
statement. Medlock,
12 F.3d at 187. Nothing in the record indicates that Brown
entered the guilty plea based on the belief that he still could pursue the motion to
suppress issue on appeal.7
Accordingly, he waived his right to appeal from the denial of his motion to
suppress, and we affirm as to this issue.
7
After Brown raised a concern about the impact of a blind plea on his right to appeal, the
district court continued the plea hearing to allow Brown to confer with his counsel. Two weeks
later, Brown entered an unconditional blind plea and at no point during the proceeding did he
indicate that he desired to appeal the motion to suppress.
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B. The U.S.S.G. § 2K2.1(b)(4)(A) Enhancement
Brown argues that the U.S.S.G. § 2K2.1(b)(4)(A) enhancement for
possession of a stolen firearm applies only if the possession of the stolen firearm
itself would be a felony. He maintains that, at the time of his offense, possession
of the stolen rifle would have been only a misdemeanor under Alabama law, and,
therefore, the district court erred in applying this enhancement.
“We review [the] district court’s interpretation of the Sentencing Guidelines
de novo and its factual findings for clear error.” United States v. McVay,
447 F.3d
1348, 1352–53 (11th Cir. 2006).
When interpreting the Sentencing Guidelines, the plain language controls,
and “absent ambiguity, no additional inquiry is necessary.” United States v.
Gordillo,
920 F.3d 1292, 1297 (11th Cir. 2019) (quotation omitted). “[O]ur
interpretation of the Sentencing Guidelines is governed by traditional rules of
statutory construction, including the prohibition on rewriting statutes by adding or
subtracting words.” United States v. Shannon,
631 F.3d 1187, 1189 (11th Cir.
2011) (internal citation omitted). For instance, where a drafter includes particular
language in one section of a statute and excludes it in another, courts presume that
the exclusion is intentional. See United States v. Saunders,
318 F.3d 1257, 1264
(11th Cir. 2003). The Guidelines commentary is also authoritative unless it
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violates the Constitution or a federal statute or is inconsistent with the Guidelines
themselves. Stinson v. United States,
508 U.S. 36, 38 (1993).
Section 2K2.1(b)(4)(A) of the Guidelines provides for a two-level increase
in the base offense level “[i]f any firearm . . . was stolen.” See U.S.S.G.
§ 2K2.1(b)(4)(A). The enhancement applies “regardless of whether the defendant
knew or had reason to believe that the firearm was stolen.” Id., cmt. (n.8(B)). By
contrast, § 2K2.1(b)(6)(B) provides for a four-level increase in the base offense
level where a firearm or ammunition is used “in connection with another felony
offense.” Id. § 2K2.1(b)(6)(B).
Nothing in the text of § 2K2.1(b)(4)(A) even hints at a requirement that the
possession of the stolen firearm must be felonious in order for the enhancement to
apply. Rather, the plain language of the guidelines provides that the enhancement
applies if the firearm “was stolen.” U.S.S.G. § 2K2.1(b)(4)(A). And, if the
Sentencing Commission intended to link the § 2K2.1(b)(4)(A) enhancement to
“another felony offense,” § 2K2.1(b)(6)(B) demonstrates that the Commission
knew how to do so. In short, Brown’s contention that the possession of the stolen
firearm must constitute an independent felony offense in order for the enhancement
to apply is not supported by the plain language of the Guidelines.
Brown also argues that the Guidelines commentary suggests, and the Sixth
Circuit has held, that a district court may not impose the two-level enhancement
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when a defendant has been convicted for knowingly trafficking stolen firearms
under
18 U.S.C. § 922(j). This is true. U.S.S.G. § 2K2.1, cmt. (n.8(A)); United
States v. Fugate,
964 F.3d 580, 582 (6th Cir. 2020). It is also irrelevant. Brown
was not indicted under
18 U.S.C. § 922(j). Rather, Brown pled guilty to, and the
district court convicted him of, one count of knowingly possessing a machine gun,
in violation of
18 U.S.C. § 922(o). As he did below, Brown concedes that the rifle
in his possession was, in fact, stolen. Therefore, the district court did not err by
applying the two-level enhancement under § 2K2.1(b)(4)(A). Accordingly, we
affirm his sentence.
AFFIRMED.
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