NO:
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`
`OCTOBER TERM, 2025
`
`CHRISTOPHER BARNES
`
`Petitioner,
`v.
`
`UNITED STATES OF AMERICA,
`
`Respondent.
`
`Appendix 1 – Eleventh Circuit’s Unpublished Opinion
`United States v. Barnes, 23-13438, 2024 WL 4589481 (11th Cir. Oct. 28, 2024)
`
`1
`
`
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`
`OCTOBER TERM, 2025
`
`CHRISTOPHER BARNES
`
`Petitioner,
`v.
`
`UNITED STATES OF AMERICA,
`
`Respondent.
`
`Appendix 1 – Eleventh Circuit’s Unpublished Opinion
`United States v. Barnes, 23-13438, 2024 WL 4589481 (11th Cir. Oct. 28, 2024)
`
`1
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 1 of 10
`
`
`
`[DO NOT PUBLISH]
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`
`
`
`
`____________________
`
`No. 23-13438
`
`
`
`Non-Argument Calendar
`
`____________________
`
`
`UNITED STATES OF AMERICA,
`
`versus
`
`CHRISTOPHER E. BARNES,
`
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeal from the United States District Court
`for the Middle District of Georgia
`D.C. Docket No. 7:23-cr-00017-WLS-TQL-1
`____________________
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 2 of 10
`
`2
`
`Opinion of the Court
`
`23-13438
`
`
`Before JORDAN, LUCK, and MARCUS, Circuit Judges.
`
`PER CURIAM:
`
`Christopher Barnes appeals his conviction and 27-month
`sentence for possession of a firearm (a 9mm pistol) by a convicted
`felon. On appeal, he argues that: (1) the district court clearly erred
`in finding that he constructively possessed two additional firearms
`(a rifle and a Glock) found in the motel room where he was arrested
`and abused its discretion in imposing a two-level sentencing en-
`hancement based on this finding; and (2) his conviction under 18
`U.S.C. § 922(g)(1) is both facially unconstitutional and unconstitu-
`tional as applied to him under the Second Amendment, pursuant
`to New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1
`(2022). After careful review, we affirm.
`I.
`While we normally review sentences for abuse of discretion,
`we review a district court’s factual findings “for clear error, and its
`application of those facts to justify a sentencing enhancement . . .
`de novo.” United States v. Ware, 69 F.4th 830, 854 (11th Cir. 2023)
`(quotations omitted). For sentencing purposes, whether a defend-
`ant possessed a firearm is a question we review for clear error.
`United States v. Stallings, 463 F.3d 1218, 1220–21 (11th Cir. 2006).
`
`We also generally review the constitutionality of a statute de
`novo. See United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010)
`(involving a challenge to § 922(g)(1) on Commerce Clause
`grounds). However, when a defendant raises this kind of challenge
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 3 of 10
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`23-13438
`
`Opinion of the Court
`
`3
`
`for the first time on appeal, we review only for plain error. Id. To
`establish plain error, the defendant must show (1) an error, (2) that
`is plain, and (3) that affected his substantial rights. United States v.
`Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satis-
`fies these conditions, we may exercise our discretion to recognize
`the error only if it seriously affects the fairness, integrity, or public
`reputation of judicial proceedings. Id.
`
`We are bound to adhere to our prior panel precedent unless
`that precedent has been abrogated by this Court sitting en banc or
`by the Supreme Court. United States v. White, 837 F.3d 1225, 1228
`(11th Cir. 2016). “To constitute an overruling for the purposes of
`this prior panel precedent rule, the Supreme Court decision must
`be clearly on point.” United States v. Kaley, 579 F.3d 1246, 1255 (11th
`Cir. 2009) (quotations omitted). To abrogate precedent, the Su-
`preme Court must also “demolish and eviscerate each of its funda-
`mental props.” United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir.
`2024) (quotations omitted).
`
`II.
`First, we are unpersuaded by Barnes’s claim that the district
`court clearly erred in finding that he possessed three firearms found
`in the motel room where he was arrested for purposes of imposing
`a two-level sentencing enhancement. Convictions under 18 U.S.C.
`§ 922(g)(1) are sentenced according to U.S.S.G. § 2K2.1. See U.S.S.G.
`§ 2K2.1 comment. Under U.S.S.G. § 2K2.1(b)(1), when an individ-
`ual is sentenced for an offense that involves three to seven firearms,
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 4 of 10
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`4
`
`Opinion of the Court
`
`23-13438
`
`the defendant’s sentence shall be increased by two levels. U.S.S.G.
`§ 2K2.1(b)(1)(A).
`
`“When the government seeks to apply an enhancement un-
`der the Sentencing Guidelines over the defendant’s factual objec-
`tion, the government has the burden of introducing sufficient and
`reliable evidence to prove the necessary facts by a preponderance
`of the evidence.” United States v. Grady, 18 F.4th 1275, 1291–92 (11th
`Cir. 2021). “The district court’s factual findings for purposes of
`sentencing may be based on, among other things, evidence heard
`during trial, undisputed statements in the [Presentence Investiga-
`tion Report (‘PSI’)], or evidence presented during the sentencing
`hearing.” United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
`Where a defendant fails to object to facts contained in the PSI,
`those facts are deemed admitted for sentencing purposes. See
`United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
`
`A felon may unlawfully possess a firearm through actual or
`constructive possession. United States v. Hill, 799 F.3d 1318, 1321
`(11th Cir. 2015). “A defendant is in constructive possession of a fire-
`arm when the defendant does not actually possess the firearm but
`instead knowingly has the power or right, and intention to exercise
`dominion and control over the firearm.” Id. (quotations omitted).
`“A defendant’s presence in the vicinity of a firearm or mere associ-
`ation with another who possesses that gun is insufficient; however,
`at the same time, the firearm need not be on or near the defend-
`ant’s person in order to amount to knowing possession.” United
`States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (cleaned up). So, as
`
`
`
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`23-13438
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`Opinion of the Court
`
`5
`
`long as the government proves the defendant “(1) was aware or
`knew of the firearm’s presence and (2) had the ability and intent to
`later exercise dominion and control over that firearm, the defend-
`ant’s constructive possession of that firearm is shown.” Id. Con-
`structive possession may be proven by direct or circumstantial evi-
`dence. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).
`A defendant may constructively possess an item either exclusively
`or in association with others. See United States v. Cabezas-Montano,
`949 F.3d 567, 596 (11th Cir. 2020).
`
`According to the PSI, Barnes’s offense of conviction arose
`out of an incident at a hotel room in Tifton, Georigia, where law
`enforcement had been conducting surveillance of a wanted person,
`Stephanie Whiddon. When law enforcement approached the
`room and took Whiddon into custody, they saw Barnes reach un-
`der the bed. During a pat-down of Barnes, law enforcement of-
`fense found a 9mm pistol loaded with eleven rounds in Barnes’s
`waistband. The officers also found a rifle under a blanket on the
`bed near where Barnes was initially seen, along with a Glock on the
`dresser and a small amount of suspected marijuana on the
`nightstand. After being given his Miranda rights, Barnes said he had
`been staying with Whiddon to “get space” from his family, he had
`no knowledge of the firearms before he woke up, and he had only
`recently placed the pistol in his waistband while “helping Whiddon
`move everything” into a vehicle. Whiddon told law enforcement
`officers that the firearms all belonged to her.
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 6 of 10
`
`6
`
`Opinion of the Court
`
`23-13438
`
`Barnes pleaded guilty to being a felon in possession of a fire-
`arm. In preparation for sentencing, Barnes’s PSI added two-levels
`to his offense level because the relevant conduct involved three fire-
`arms -- the pistol, the rifle and the Glock -- under U.S.S.G. §
`2K2.1(b)(1)(A). At his sentencing hearing, Barnes argued that the
`two-level enhancement based on his possession of three firearms -
`- which included his constructive possession of the rifle and the
`Glock -- was not warranted. The district court disagreed, reasoning
`that, “[u]nder the most favorable circumstances,” Barnes was in a
`room where he knew firearms were present, he was assisting Whid-
`don with removing items from the room, and he placed one of the
`firearms into his waistband. The district court stressed that it was
`“a totally plausible inference that [Barnes] was knowingly assisting
`[Whiddon] at a minimum in moving those . . . firearms,” in part
`because Barnes had placed the pistol into his waistband, and that,
`as a convicted felon, Barnes knew “he had no business being in con-
`tact in the vicinity of firearms whatsoever.” The court concluded
`that, under the totality of the circumstances, Barnes was actively
`assisting Whiddon in moving all three firearms.
`
`On this record, the district court did not clearly err in finding
`by a preponderance of the evidence that Barnes constructively pos-
`sessed the rifle and the Glock. See Stallings, 463 F.3d at 1220–21;
`Grady, 18 F.4th at 1291–92. Notably, when Barnes objected to the
`imposition of the § 2K2.1(b)(1)(A) enhancement, he did not object
`to the statement contained in the PSI that he was “helping Whid-
`don move everything” from the motel room to the truck, render-
`ing it an admissible fact for sentencing purposes. See Shelton, 400
`
`
`
`USCA11 Case: 23-13438 Document: 25-1 Date Filed: 10/28/2024 Page: 7 of 10
`
`23-13438
`
`Opinion of the Court
`
`7
`
`F.3d at 1330.1 Additionally, in a recording of Barnes’s statement to
`law enforcement that was played for the court, he responded to a
`question about the pistol in his waistband by saying that “it was in
`the room . . . I just was picking up my, uh, my stuff, and I was just
`taking it to the truck.” On this record, it was not clearly erroneous
`for the district court to conclude that, by a preponderance of the
`evidence, Barnes intended to move the rifle and the Glock to the
`truck and therefore constructively possessed the two firearms. See
`Grady, 18 F.4th at 1291–92; Polar, 369 F.3d at 1255; Howard, 742 F.3d
`at 1341. Accordingly, the district court did not clearly err in finding
`that Barnes had possessed all three firearms and therefore did not
`err in applying the two-level enhancement under § 2K2.1(b)(1)(A).
`See Ware, 69 F.4th at 854.
`
`III.
`We also find no merit to Barnes’s claim that his conviction
`under 18 U.S.C. § 922(g)(1) is both facially unconstitutional and
`
`
`1 As for Barnes’s argument that the district court clearly erred in finding that
`he’d told law enforcement that he was helping Whiddon move her posses-
`sions, the district court never made that finding. Instead, the court found that
`Barnes was “assisting [Whiddon] at a minimum in moving those . . . firearms.”
`Regardless, the court did not impose the enhancement based solely on the
`statement in the PSI; the court made clear its ruling was based on the “totality
`of the circumstances.” As for Barnes’s argument that the court erroneously
`held the government to a plausibility evidentiary standard rather a preponder-
`ance-of-the-evidence standard, the record belies this claim. Among other
`things, the court expressly applied the enhancement “based upon a prepon-
`derance of the evidence and the appropriate inferences made from the circum-
`stances.”
`
`
`
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`
`8
`
`Opinion of the Court
`
`23-13438
`
`unconstitutional as applied to him. The Second Amendment pro-
`tects the right to keep and bear arms. U.S. Const. amend. II. The
`federal felon-in-possession statute prohibits anyone who has been
`convicted of a crime punishable by more than one year of impris-
`onment from keeping a firearm or ammunition. 18 U.S.C.
`§ 922(g)(1). To obtain a conviction under § 922(g)(1), the govern-
`ment must prove “both that the defendant knew he possessed a
`firearm and that he knew he belonged to the relevant category of
`persons barred from possessing a firearm.” Rehaif v. United States,
`588 U.S. 225, 237 (2019).
`
`In District of Columbia v. Heller, the Supreme Court consid-
`ered a “law-abiding” citizen’s challenge to the District of Colum-
`bia’s total ban on handgun possession, including possession in the
`home. 554 U.S. 570, 574–76, 625, 628 (2008). The Court held that
`the Second Amendment right to bear arms “belongs to all Ameri-
`cans,” but is “not unlimited.” Id. at 581, 626. The Court noted that,
`while it “[did] not undertake an exhaustive historical analysis . . . of
`the full scope of the Second Amendment, nothing in [its] opinion
`should [have been] taken to cast doubt on longstanding prohibi-
`tions on the possession of firearms by felons.” Id. at 626.
`
`Following Heller, the circuit courts adopted a two-step
`framework for Second Amendment challenges in which they, first,
`considered whether a law regulated activity within the scope of the
`Amendment based on its original historical meaning, and, second,
`they applied a means-end scrutiny test to determine the law’s va-
`lidity. See Bruen, 597 U.S. at 18–19. In United States v. Rozier, decided
`
`
`
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`23-13438
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`Opinion of the Court
`
`9
`
`between Heller and Bruen, we held that § 922(g)(1) was constitu-
`tional, “even if a felon possesses a firearm purely for self-defense.”
`598 F.3d 768, 770 (11th Cir. 2010).
`
`In Bruen, the Supreme Court explained that the then-pre-
`dominant means-end scrutiny test that was being applied by the
`circuit courts was inconsistent with Heller’s historical approach.
`597 U.S. at 23–24. Instead, the Supreme Court explained that after
`determining whether an individual’s conduct is covered by the Sec-
`ond Amendment’s plain text, the courts should consider whether
`the regulation in question “is consistent with the Nation’s historical
`tradition of firearm regulation.” Id. at 24. The Bruen opinion re-
`peatedly discussed the Second Amendment as protecting the rights
`of “law-abiding” citizens. See id. at 9, 26, 38 n.9, 70–71.
`
`In Dubois, decided after Bruen, we held that § 922(g)(1) was
`still constitutional because Bruen was “in keeping with Heller,”
`which “did not cast doubt on felon-in-possession prohibitions” and
`thus could not have abrogated Rozier under the prior-panel-prece-
`dent rule. 94 F.4th at 1293 (alterations adopted) (quotations omit-
`ted). In reaching that conclusion, we said that Bruen approved step
`one of the two-step framework and that we “require[d] clearer in-
`struction” from the Supreme Court before we would reconsider
`the constitutionality of § 922(g)(1). Id. at 1292–93.
`
`Most recently, in United States v. Rahimi, the Supreme Court
`held that § 922(g)(8), the subsection of the statute that prohibits
`firearm possession by an individual subject to a domestic violence
`restraining order, was constitutional because the law comported
`
`
`
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`10
`
`Opinion of the Court
`
`23-13438
`
`with the principles underlying the Second Amendment. 144 S. Ct.
`1889, 1898–1902 (2024). In reaching that conclusion, the Court ex-
`plained that “some courts [had] misunderstood” its clarifications in
`Bruen to the second step of the framework and had “read Bruen to
`require a historical twin rather than a historical analogue.” Id. at
`1897, 1903 (quotations omitted). The Court also again noted that
`prohibitions on felons’ possession of firearms are “presumptively
`lawful.” Id. at 1902 (quoting Heller, 554 U.S. at 626–27).
`
`Here, Barnes has raised his constitutional challenges to
`§ 922(g)(1) -- along with its penalty provision, § 924(a)(2) (now
`found in § 924(a)(8)) -- for the first time on appeal, so we review
`them only for plain error, and we can find none. As we’ve detailed,
`our precedent, to which we are bound to adhere, clearly establishes
`that § 922(g)(1) is constitutional under Bruen. See White, 837 F.3d at
`1228; Rozier, 598 F.3d at 770–71; Dubois, 94 F.4th at 1292–93. Rozier
`and Dubois upheld § 922(g)(1)’s constitutionality, and neither Bruen
`nor Rahimi “demolish[ed] and eviscerate[d] each of [Rozier’s or Du-
`bois’s] fundamental props” in order to overcome our prior panel
`precedent. Rozier, 598 F.3d at 771; Dubois, 94 F.4th at 1291, 1293.
`Furthermore, the statutes were constitutional as applied to Barnes
`because he stipulated to the facts that he possessed a firearm and
`that he knew he was a convicted felon at the time of his arrest, and
`no other factual determinations must be made. See 18 U.S.C.
`§ 922(g)(1); Rehaif, 588 U.S. at 237. Therefore, Barnes has not es-
`tablished that the district court erred, much less plainly erred, and
`we affirm. See Turner, 474 F.3d at 1276.
`AFFIRMED.
`
`
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