In United States v. Dubois, No. 22-10829 (Mar. 5, 2024) (William Pryor, Rosenbaum, Abudu), the Court affirmed Mr. Dubois’s convictions and sentence for attempting to smuggle firearms out of the United States, delivering firearms to a common carrier for shipment without written notice, and possessing a firearm as a felon.

The Court denied Mr. Dubois’s motion to stay pending the Supreme Court’s decisions in United States v. Rahimi, No. 22-915, and Jackson v. United States, No. 22-6640. It then rejected each of Mr. Dubois’s five claims:

First, the Court held that its precedent foreclosed argument that the federal felon-in-possession statute violates the Second Amendment. It otherwise refused to accept that New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), abrogated that precedent without “clearer instruction from the Supreme Court” — particularly given that Bruen makes clear that its holding is in keeping with District of Columbia v. Heller, 554 U.S. 570 (2008), and the Bruen majority mentioned neither felons nor the felon-in-possession statute.

Second, and contrary to Mr. Dubois’s sufficiency-of-evidence argument, the Court held that the record contained ample circumstantial proof that Mr. Dubois knew his shipment contained firearms.

Third, the Court rejected argument that Mr. Dubois’s prior marijuana conviction in Georgia could not establish a “controlled substance offense” under U.S.S.G. § 2K2.1(a)(4)(A). In reaching this decision, the Court joined circuits that have held that, for prior state convictions, “controlled substance” refers to drugs on the state’s drug schedules, rather than those regulated by federal law. It then adopted the rule of the Third, Sixth, and Eighth Circuits that “controlled substance” also refers to a substance that was regulated by state law at the time the defendant was convicted of the state drug offense, not the time of federal sentencing. This is so, the Court reasoned, because the guideline’s phrase “subsequent to” supports a backward-looking approach. Additionally, the Supreme Court’s reasons for adopting a time-of-state-conviction approach when it interpreted ACCA’s similar provision, see McNeil v. United States, 563 U.S. 816 (2011), compel the same approach under the guideline.

Fourth, the Court held that its precedent also foreclosed argument that Mr. Dubois’s stolen-gun sentence enhancement, without proof of knowledge that the gun was stolen, violated the Fifth Amendment.

Fifth, applying the plain-error standard, the Court held that undisputed record evidence supported the district court’s determination that Mr. Dubois could pay his $25,000 fine.

Judge Rosenbaum, with Judge Abudu joining, concurred. This concurrence separately expressed, among other things, why the Supreme Court’s impending decisions in Jackson and Brown v. United States, No. 22-6389, are unlikely to affect Mr. Dubois’s § 2K2.1(a)(4)(A) claim. The concurrence emphasized that Mr. Dubois’s case arose under the Sentencing Guidelines, while Jackson and Brown arose under ACCA. This “makes all the difference,” it explained, because ACCA defines “controlled substance” by express reference to the federal Controlled Substances Act, or “CSA,” and therefore directs that a “controlled substance” is what the CSA says it is, no matter how state law defines it. Neither Congress nor the federal Sentencing Commission can amend the CSA or, by extension, ACCA. And the guideline’s lack of statutory cross-reference makes Mr. Dubois’s case and McNeil indistinguishable.

202210829.pdf (