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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12943
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER JAWAN WEAVER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cr-00279-MHH-NAD-1
____________________
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2 Opinion of the Court 22-12943
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Christopher Weaver appeals his 57-month sentence
imposed after he pleaded guilty to possessing a firearm as a
convicted felon. He argues that the district court clearly erred in
imposing a four-level guidelines enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for possession of the firearm in
connection with another felony offense. After review, we affirm.
I. Background
On April 6, 2021, an altercation ensued between Weaver,
then age 38, and B.J., the 16-year-old daughter of Weaver’s
girlfriend Williams, during which he pistol-whipped the minor in
the face.1 A grand jury indicted Weaver for possession of a firearm
by a convicted felon, and he pleaded guilty without the benefit of
a plea agreement.
Prior to sentencing, the United States Probation Office
prepared a presentence investigation report (“PSI”), which
included a four-level enhancement under § 2K2.1(b)(6)(B), for
possession of a firearm in connection with another felony offense.
The other felony offense was Alabama second-degree assault 2
1 The gun belonged to Weaver’s girlfriend, Williams. Weaver admitted
during the change-of-plea hearing that he knew he had a prior felony
conviction and was not supposed to possess a firearm.
2 Initially, the PSI indicated that Weaver possessed the firearm in connection
with the felony offense of first-degree domestic violence. However, at the
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22-12943 Opinion of the Court 3
based on the underlying altercation. Weaver’s resulting guidelines
range was 57 to 71 months’ imprisonment. Weaver objected to the
§ 2K2.1(b)(6)(B) enhancement, arguing in relevant part that his
conduct did not establish the offense because he had not intended
to harm B.J. and was just trying “to get her off of him and remove
himself from the situation.”
At sentencing, the government called several witnesses to
establish the assault. 3 Deputy Travis Burks testified that he and
Officer Christopher Davis responded to a domestic violence call
just after midnight on April 6, 2021. Upon arrival, Davis went
inside the home, while Burks began walking around the exterior.
When Burks went inside, he found B.J. and Weaver in a back room
of the home. Officer Burks observed that B.J.’s “face was covered
in blood” from a gash over her left eye, and she “had blood on her
face and on her shirt.” Officer Burks stated that Weaver was lying
on the floor in the back room, and “[t]here was a large amount of
blood on the floor and on the wall” of the room. There was a small
handgun with blood on it on a shelf in the back room near Weaver.
Officers had to place B.J. and Weaver in separate areas of the home
because they continued to argue with each other, and B.J., who
officers described as “upset” and “hyped up,” attempted repeatedly
sentencing hearing, the government explained that it planned to prove instead
that Weaver possessed the firearm in connection with the felony offense of
second-degree assault under Alabama law, and the court modified the PSI
accordingly.
3 Testimony unrelated to the issue on appeal is omitted from this opinion.
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4 Opinion of the Court 22-12943
to make movements toward Weaver until officers removed
Weaver from the house. Weaver admitted that he hit the victim
in the face, but also stated she had been “jumping on him.” Weaver
told officers that he did not have any injuries.
Officer Davis testified that, upon entering the home, he
observed B.J. and Weaver “in a struggle,” and B.J. had Weaver in a
headlock. Davis instructed them “to turn loose” and for Weaver
to get on the ground, and they complied.
The officer who interviewed Weaver testified that Weaver
stated that B.J.’s mother had been having issues with B.J.’s behavior
and her “backtalking” and “not listening.” 4 And on the day in
question, B.J. had brought another girl home, who was 12 or 13
years old, and the girl’s parents had called the police and reported
her as a runaway.5 Weaver and B.J.’s mother told B.J that the girl
had to go home. They drove B.J. and the girl toward the girl’s
home, but upon seeing the police, they let B.J. and her friend out
of the car down the block, and Weaver and B.J.’s mom returned to
B.J.’s mother’s residence. However, B.J. and the girl showed back
up at B.J.’s home in a car of a man that he did not recognize.
Because the car and the man was unfamiliar, Weaver grabbed his
girlfriend’s pistol and went outside. 6 When he came back inside, he
4 The government played an audio recording of Weaver’s interview.
5 Weaver told the officer that there was a warrant out for his arrest due to a
probation violation, so he was trying to avoid any interactions with the police.
Therefore, the situation with B.J.’s friend “made him uncomfortable.”
6 The gun was not loaded.
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22-12943 Opinion of the Court 5
and B.J. started to argue over the situation, and B.J. grabbed him.7
He then “pushed her against the wall” and “she came back into his
face” and swung at him, at which point he hit her in the face to
keep her off of him. He forgot that the gun was in his hand. He
stated he was going to defend himself, and he did not care if she
was 16.
B.J., who was 16 at the time of the incident, testified that, on
the day in question, she had brought her friend home to braid her
hair, but her friend did not have her family’s permission to go to
B.J.’s house. Upon learning that her friend’s family had called the
police and was concerned about her friend’s whereabouts, Weaver
and her mother drove B.J. and her friend back to her friend’s
grandmother’s house. The police were at her friend’s house, and
Weaver did not want to be seen by the police. So B.J. and her friend
got out of the car, and Weaver and her mother drove back home.
Instead of walking her friend home, however, B.J. and her friend
caught a ride with a stranger passing by back to B.J.’s house.
B.J. and her friend were in B.J.’s room braiding hair when
they heard an argument between Weaver and B.J.’s mother. When
they heard someone say something about a gun, B.J. and her
younger sister decided to call the police. According to B.J., Weaver
got upset that she had called the police, held a gun up to her face,
and pistol whipped her by hitting her in the face twice with the gun.
7 In the audio recording of the interview, Weaver stated that B.J. called the
police before they started arguing when Weaver was outside confronting the
driver.
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6 Opinion of the Court 22-12943
After he hit her, they began physically fighting, and they were
fighting when the police arrived. B.J. believed that Weaver was
intoxicated or on drugs the night of the incident because “his eyes
were red and he couldn’t keep his eyes still.”
Weaver then called B.J.’s mother as a witness. She testified
that B.J. has schizophrenia and anger issues, and that she is often
non-compliant with her medications. However, she did not know
whether or not B.J. was taking her medication at the time of the
incident. She stated that her daughter has threatened her before,
but did not elaborate as to the nature of the threats.
B.J.’s mother explained that, on the day of the incident, she
did not know that B.J.’s friend was “hiding” in the house, and the
girl’s family had repeatedly called looking for her. They drove the
girl home, but dropped B.J. and the girl off about “half a block”
from the house because the police were at the house. She and
Weaver headed home, but later B.J. and her friend showed back up
at B.J.’s home, and B.J. seemed “mad, [and] angry.” A middle-aged
man drove the girls back to B.J.’s house. After dropping the girls
off, he just sat in the driveway and did not leave. B.J.’s mother and
Weaver went outside to confront the man and tell him to leave. At
some point, B.J.’s mother went inside and retrieved her gun. B.J.’s
mother described the evening as “chaos on top of chaos.”
After the man in the driveway left, B.J.’s mother and Weaver
went inside and got in an argument over B.J.’s behavior. At some
point, B.J. and Weaver started arguing about his dispute with her
mother. B.J.’s mother did not see Weaver strike B.J. B.J.’s mother
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confirmed that she kept in touch with Weaver following his arrest
in this case. B.J.’s mother explained that she still cared about
Weaver, but that she would not lie to keep him out of trouble and
that she testified truthfully.
On cross-examination, B.J.’s mother admitted that in
recorded jail calls she told Weaver that the incident had “probably
come from drugs” and that “he had a lot of problems going on in
his life from drugs.”
Following the witnesses’ testimony, the district court
continued the sentencing hearing and allowed the parties to file
supplemental briefing on the § 2K2.1(b)(6)(B) sentencing
enhancement.
In his supplemental brief, Weaver argued, in relevant part,
that the enhancement did not apply because Weaver “acted in self-
defense to repel B.J.’s physical attacks, and he was justified in using
force under the circumstances.” The government in turn argued
that Weaver had not acted in self-defense.
When the sentencing hearing resumed, the district court
stated that it did not find B.J.’s testimony credible, and it did not
accept the testimony that Weaver was the aggressor.
Nevertheless, the district court overruled Weaver’s objection to
the four-level § 2K2.1(b)(6)(B) sentencing enhancement,
concluding that Weaver used more force than was reasonably
necessary to defend himself, such that his self-defense argument
failed under Alabama law. Thus, the court adopted the PSI and
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8 Opinion of the Court 22-12943
imposed a bottom of the guidelines sentence of 57 months’
imprisonment to be followed by 2 years’ supervised release.
Following the sentencing hearing, the district court issued
written findings of fact and conclusions of law concerning the
sentencing enhancement. Specifically, the district court found
both that B.J.’s version of events and Weaver’s statement that he
forgot that the gun was in his hand when he struck B.J. were not
credible. 8 Rather, the court found B.J.’s mother’s testimony
credible. The court found that B.J. was “responsible for the events
that led to her fight with Mr. Weaver,” citing the fact that she
brought a young girl home with her without the girl’s family’s
permission and compounded the situation by not taking the girl
home once Weaver and B.J.’s mother dropped them off near the
girl’s house and instead returned home with the girl after obtaining
a ride from a stranger. The court further found that B.J. “instigated
her fight with Mr. Weaver” and that Weaver “intended to strike
the victim to defend himself from her aggression.” However, the
court found that Weaver “used more force than he could
reasonably believe was necessary when he picked up the unloaded
gun and struck the victim with it.” The court noted that there was
no evidence that 16-year-old B.J. was capable of causing serious
bodily harm to Weaver, which meant that he could not
“reasonably believe that he had to strike [her] in the face with a gun
8 The district court also found that, although there was evidence that Weaver
had issues with drugs, there was no credible evidence that Weaver was
intoxicated at the time of the incident.
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22-12943 Opinion of the Court 9
to defend himself from such harm.” Therefore, the court
concluded that the government established that Weaver
committed second-degree assault under Alabama law and that he
would not be able to establish self-defense “because he used more
force [than] he could reasonably believe necessary to defend
himself against the assault the victim initiated.”
Weaver timely appealed.
II. Discussion
Weaver argues that the district court clearly erred in
imposing the four-level § 2K2.1(b)(6)(B) enhancement for
possession of the firearm in connection with another felony offense
where the evidence showed that Weaver acted in self-defense, and
self-defense is a complete defense to the offense of assault under
Alabama law. 9 He maintains that the district court erred in
concluding that he used more force than was reasonably necessary
to defend himself because the amount of force he used did not stop
the attack, as evidenced by the fact that B.J. had Weaver in a
headlock when police arrived.
“[W]e review a district court’s determinations of law de
novo and its findings of fact for clear error. A district court’s
determination that a defendant possessed a gun “‘in connection
with’ another felony offense is a finding of fact that we review for
9 Weaver does not dispute that, absent his claim of self-defense, the evidence
established by a preponderance that felony offense of second-degree assault
under Alabama law.
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10 Opinion of the Court 22-12943
clear error.” United States v. Bishop,
940 F.3d 1242, 1250 (11th Cir.
2019) (quotations omitted). “For a factual finding to be clearly
erroneous, this court, after reviewing all of the evidence, must be
left with a definite and firm conviction that a mistake has been
committed.” United States v. Rodriguez-Lopez,
363 F.3d 1134, 1137
(11th Cir. 2004) (quotations omitted).
For a factual finding to be clearly erroneous, we must be left
with the definite and firm conviction that the district court made a
mistake. United States v. Smith,
821 F.3d 1293, 1302 (11th Cir. 2016).
Additionally, “[a] factual finding cannot be clearly erroneous when
the factfinder [chooses] between two permissible views of
evidence.” United States v. Wilson,
788 F.3d 1298, 1317 (11th Cir.
2015).
The guidelines provide for a four-level enhancement if the
defendant “used or possessed any firearm . . . in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “[A]nother
felony offense” includes state offenses punishable by imprisonment
for a term of more than one year, regardless of whether the
defendant was charged with that offense. United States v. Smith,
480
F.3d 1277, 1280 (11th Cir. 2007). The government bears the burden
of establishing by a preponderance of the evidence the facts
necessary to support the sentencing enhancement.
Id.
Under Alabama law, a person commits second-degree
assault and can be punished by a term of imprisonment greater
than one year if he causes physical injury to any person by means
of a deadly weapon or a dangerous instrument with the intent to
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22-12943 Opinion of the Court 11
cause physical injury. Ala. Code § 13A-6-21(a)(2), (b) (providing
that second-degree assault is a Class C felony); id. § 13A-5-6(a)(3)
(explaining that Class C felonies in Alabama by “not more than 10
years or less than one year and one day”). However, Alabama law
also provides that “[a] person is justified in using physical force
upon another person in order to defend himself or herself . . . from
what he or she reasonably believes to be the use or imminent use
of unlawful physical force by that other person, and he or she may
use a degree of force which he or she reasonably believes to be
necessary for the purpose.”10 Id. § 13A-3-23(a).
Here, the district court did not clearly err by finding that
Weaver used more force than he could have reasonably believed
was necessary to defend himself against B.J.’s attack. Based on the
permissible views of the evidence of the altercation between B.J.
and Weaver, notwithstanding the fact that Weaver’s use of force
did not stop B.J.,11 the district court did not clearly err in finding
10 We have not addressed whether an affirmative defense to the underlying
felony that forms the basis of the § 2K2.1(b)(6)(B) enhancement would
necessarily negate the sentencing enhancement. However, as Weaver points
out, at least two other circuits have suggested that an affirmative defense to
the underlying felony offense proven by a preponderance of the evidence
would negate the sentencing enhancement. See, e.g., United States v. Mattox,
27 F.4th 668, 676–77 (8th Cir. 2022); United States v. Price,
16 F.4th 1263, 1266
(7th Cir. 2021). Furthermore, the government agrees that, if Weaver acted in
self-defense, then the enhancement would not apply. Therefore, for purposes
of this opinion, we assume without deciding that, if Weaver acted in self-
defense, the sentencing enhancement would be inapplicable.
11 Weaver makes much of the fact that Weaver’s use of force did not stop B.J.’s
attack as evidenced by the fact that B.J. had Weaver in a headlock when the
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that it was an unreasonable use of force for Weaver, an adult male
in his thirties, to pistol-whip a 16-year-old unarmed girl in order to
defend himself from her physical altercation.12 This finding is
police arrived. But self-defense is not measured based on conduct that
occurred after the use of force. Thus, whether or not the use of force stopped
the attack is irrelevant to whether the use of force was reasonable. Rather, in
Alabama “[a] person is justified in using physical force upon another person in
order to defend himself or herself . . . from what he or she reasonably believes
to be the use or imminent use of unlawful physical force by that other person,
and he or she may use a degree of force which he or she reasonably believes
to be necessary for the purpose.” Ala. Code § 13A-3-23(a). Thus, the inquiry
focuses on whether the use of force was reasonable in light of the
circumstances that preceded the use of force (i.e., B.J.’s conduct before Weaver
struck her in the face with the gun) not the circumstances that followed the
use of force.
12 To the extent that Weaver argues for the first time on appeal that the district
court added a requirement not listed in Alabama’s self-defense statute—that
Weaver had to reasonably believe that B.J. was capable of causing him serious
bodily harm for his actions to be justified—Weaver failed to raise that
objection in the district court, and, therefore, we review for plain error. See
e.g., United States v. Massey,
443 F.3d 814, 818 (11th Cir. 2006) (“When the
appealing party does not clearly state the grounds for an objection in the
district court, we are limited to reviewing for plain error.”); see also Wilson,
788
F.3d at 1318 (applying plain error review for sentencing argument raised for
first time on appeal). The district court committed no error, plain or
otherwise. Contrary to Weaver’s argument, a review of the district court’s
findings of fact and conclusions of law confirms that the district court did not
add a requirement to Alabama’s self-defense statute that Weaver had to
believe that B.J. was capable of causing him serious bodily harm in order for
his actions to be justified.
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22-12943 Opinion of the Court 13
further supported by the fact that Weaver did not suffer any
injuries from the attack while B.J. was seriously injured. Thus, the
district court did not err in rejecting Weaver’s self-defense
argument and applying the four-level sentencing enhancement.
See Wilson,
788 F.3d at 1317 (“A factual finding cannot be clearly
erroneous when the factfinder [chooses] between two permissible
views of evidence.”). Accordingly, we affirm the district court.
AFFIRMED.
