USA v. Darrin Christopher Wallace

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12258
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRIN CHRISTOPHER WALLACE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:22-cr-80027-RLR-1
____________________
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 1 of 14

-- 1 of 14 --

2 Opinion of the Court 22-12258
Before B RASHER , ABUDU, and H ULL , Circuit Judges.
PER CURIAM:
After pleading guilty, defendant Darrin Wallace appeals his
96-month sentence for possession of a firearm by a convicted felon.
On appeal, Wallace argues that the district court erred by:
(1) assigning a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3)
based on his prior Florida conviction for aggravated assault with a
firearm being a crime of violence; (2) applying a four-level increase
under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in
connection with another felony offense; and (3) denying his motion
for a downward departure under U.S.S.G. § 4A1.3(b).
Because we lack jurisdiction to review the district court’s
denial of Wallace’s downward-departure motion, we dismiss that
part of his appeal. As to the district court’s application of the two
challenged guidelines enhancements, we find no error and affirm.
I. BACKGROUND FACTS
A. Offense Conduct
Wallace does not dispute these facts. In 2019, Wallace was
convicted in a Florida state court of felony aggravated assault with
a firearm. As a convicted felon, Wallace was prohibited from
possessing a firearm and ammunition.
In November 2021, police received a 911 call reporting that
Wallace was outside the caller’s residence, had a firearm, and was
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 2 of 14

-- 2 of 14 --

22-12258 Opinion of the Court 3
having a dispute with his uncle, A.W., and A.W.’s girlfriend, W.U.
During the 911 call, Wallace discharged three rounds.
As officers arrived, they saw Wallace driving away in A.W.’s
car. As Wallace fled, he drove toward one marked patrol car,
forcing it off the road, and rammed the back of the patrol car.
Wallace then led police on a high-speed chase at over 100 miles per
hour, before crashing his car. Officers immediately detained
Wallace at the accident scene and found a firearm on the front
passenger floorboard of his car. The firearm, a semi-automatic
pistol, had a magazine with a thirty-round capacity and was loaded
with sixteen rounds.
An officer interviewed the victims, A.W. and W.U., who
confirmed that the incident stemmed from a dispute over $15,000.
While the three were riding in A.W.’s car, Wallace pulled out the
firearm and demanded the money. A.W. drove to the residence to
get the money, leaving W.U. in the car with Wallace.
While they waited, Wallace made W.U. open the trunk of
the car to look for money. Wallace placed the firearm to the side
of W.U.’s head and told her if A.W. did not return he would kill
her. Wallace demanded that W.U. give him her cell phone so she
could not call 911. Eventually, W.U. went to the front door of the
residence and laid down. Soon after, Wallace shot the passenger
side of the car and then took the car and fled. Crime scene
investigators found three shell casings where A.W.’s car had been
parked at the residence and three suspected bullet defects on the
passenger side of A.W.’s car.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 3 of 14

-- 3 of 14 --

4 Opinion of the Court 22-12258
Based on this incident, Wallace was arrested and charged in
Florida state court with multiple offenses, including robbery with
a firearm; shooting into a building; grand theft of a motor vehicle
while in possession of a firearm; fleeing or attempting to elude
police at reckless high speed; tampering with a witness, victim, or
informant; and aggravated assault with a firearm. When Wallace
was indicted in federal court, the state charges were dropped.
B. Conviction and Sentence
In March 2022, a federal grand jury returned a single-count
indictment charging Wallace with possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Wallace pled
guilty pursuant to a written plea agreement.
Wallace’s presentence investigation report (“PSI”) assigned
a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3) because his
offense involved a semi-automatic firearm capable of accepting a
large capacity magazine and he had committed the offense after
sustaining a conviction for a crime of violence, namely his 2019
Florida felony conviction for aggravated assault with a firearm.
The PSI increased Wallace’s offense level: (1) by four levels under
§ 2K2.1(b)(6)(B) because he possessed a firearm in connection with
a felony offense, specifically the state charges that were later
dropped;1 and (2) by two levels under § 3C1.2 because Wallace
recklessly created a substantial risk of death or serious bodily injury
1 The PSI identified U.S.S.G. § 2K1.1(b)(6)(B), but that is clearly a
typographical error, as § 2K2.1(b)(6)(B) is the relevant guideline provision.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 4 of 14

-- 4 of 14 --

22-12258 Opinion of the Court 5
to another person when he led police on the high-speed chase.
After a three-level reduction for acceptance of responsibility under
§ 3E1.1, the PSI arrived at a total offense level of 25.
The PSI assigned 13 criminal history points based on eight
prior convictions in Wallace’s criminal history, which resulted in a
criminal history category of VI. Wallace’s initial guidelines range
was 110 to 137 months. Because the statutory maximum sentence
was 120 months, the PSI noted that the advisory guidelines range
became 110 to 120 months pursuant to § 5G1.1(c)(1).
In his written objections and at sentencing, Wallace
objected, inter alia, to an enhanced base offense level of 22 under
§ 2K2.1(a)(3). Citing Borden v. United States, 593 U.S. ----,141 S. Ct.
1817 (2021), Wallace argued that his prior Florida conviction for
aggravated assault did not constitute a crime of violence because
that offense could be committed recklessly. Wallace observed that
this Court had certified questions to the Florida Supreme Court on
the issue. The district court overruled the objection, relying on this
Court’s pre-Borden precedent in United States v. Golden, 854 F.3d
1256 (11th Cir. 2017), which held that a Florida conviction for
aggravated assault constituted a crime of violence for purposes of
§ 2K2.1.
Wallace also objected to the four-level increase under
§ 2K2.1(b)(6)(B) because the state felony offenses listed in the PSI
“were all dropped” and using them to increase his base offense level
would violate his Fifth and Sixth Amendment rights. Wallace’s
counsel acknowledged he had found no case law to support this
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 5 of 14

-- 5 of 14 --

6 Opinion of the Court 22-12258
position. Wallace also acknowledged that the commentary to
§ 2K2.1 provided that the other felony offense qualified “regardless
of whether a criminal charge was brought, or a conviction
obtained.” See U.S.S.G. § 2K2.1 cmt. n.14(C). But he maintained
the commentary was not binding because it violated “the
[c]onstitutional prohibition against increasing a penalty without a
jury finding of guilty on the elements of the crime.”
The district court overruled this objection too, finding “the
four-point enhancement is appropriate under the facts as set forth
in the PSI.” The district court found that the total offense level was
25, the criminal history category was VI, and the advisory
guidelines range was 110 to 120 months.
Prior to sentencing, Wallace moved for a downward
departure under U.S.S.G. § 4A1.3(b) or for a downward variance,
contending that a criminal history category of VI significantly
overrepresented the seriousness of his criminal record. Wallace
pointed out that some of the convictions for which he received
criminal history points were “relatively minor traffic [offenses]
and/or misdemeanors” not typically associated with Category VI
offenders. At sentencing, Wallace asked for a reduced criminal
history category of IV.
The government opposed the motion, noting that Wallace
did not receive any criminal history points for many other offenses,
and he had amassed an extensive criminal history by his early
twenties, which showed a pattern of disregard for the law and an
escalation in seriousness over time.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 6 of 14

-- 6 of 14 --

22-12258 Opinion of the Court 7
The district court allowed Wallace to allocute and listened
to the parties’ arguments as to the aggravating and mitigating
circumstances that should determine the appropriate sentence. In
considering the 18 U.S.C. § 3553(a) sentencing factors, the district
court noted, among many other things, Wallace’s extensive
criminal history over a relatively short life, which the court noted
was “what [was] driving the Guidelines so high.” The district court
also agreed with the government’s argument that Wallace’s
criminal history was serious and that he needed to be deterred to
protect the public. The district court stated that it would “give a
slight variance” to, among other things, ensure Wallace was
treated similarly to other § 922(g) defendants the court had
sentenced, including an individual “who also had an offense level
of 25 and a criminal history VI.” Stating that it was “granting in
part the motion for downward variance,” the district court
imposed a 96-month sentence, followed by three years of
supervised release.
After objecting to the reasonableness of the sentence,
defense counsel asked whether the “downward departure variance
[was] on the basis that the criminal history over state[d] the
seriousness.” The district court responded that the sentence was
based on the totality of the circumstances, “a combination of
everything” rather than “any one particular factor” and “not
premised on an explicit finding of an over statement.” The district
court assured Wallace it had considered all his arguments,
including his background and personal history.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 7 of 14

-- 7 of 14 --

8 Opinion of the Court 22-12258
II. DISCUSSION
A. Enhanced Base Offense Level Under U.S.S.G.
§ 2K2.1(a)(3)
Section 2K2.1(a) provides for a base offense level of 22 if the
defendant committed the instant offense after sustaining one
felony conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a)(3).
Section 2K2.1 cross-references § 4B1.2(a) for the definition of
“crime of violence,” which includes an elements clause. Id. cmt.
n.1. That is, § 4B1.2(a) defines a crime of violence as any federal or
state offense punishable by more than one year of imprisonment
that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” U.S.S.G.
§ 4B1.2(a)(1).2
After Wallace filed his opening brief, this Court issued
Somers v. United States, 66 F.4th 890 (11th Cir. 2023). In Somers, this
Court received responses to certified questions from the Supreme
Court of Florida indicating that Florida aggravated assault cannot
be committed recklessly. 66 F.4th at 894-96. Accordingly, the
Somers Court reaffirmed that Florida aggravated assault
categorically qualifies as a violent felony under the Armed Career
Criminal Act’s (“ACCA”) elements clause. Id. at 896.
2 We review de novo whether a prior conviction qualifies as a crime of violence
under the Sentencing Guidelines. United States v. Palomino Garcia, 606 F.3d
1317, 1326 (11th Cir. 2010).
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 8 of 14

-- 8 of 14 --

22-12258 Opinion of the Court 9
As Wallace concedes in his reply brief, Somers forecloses his
challenge to the government’s use of his Florida aggravated assault
conviction as a predicate crime of violence under U.S.S.G.
§ 2K2.1(a)(3). Indeed, Wallace now states his base offense level was
properly calculated, and we agree. While Somers addressed
whether Florida aggravated assault is a violent felony under the
ACCA’s elements clause, its reasoning applies equally here to the
elements clause in § 4B1.2(a)(1). See United States v. Ochoa, 941 F.3d
1074, 1107 (11th Cir. 2019) (explaining that this Court looks to
decisions applying the ACCA for guidance in whether an offense
qualifies as a crime of violence under the guidelines, and vice versa,
because the two elements clauses are “virtually identical”). In light
of Somers, we readily conclude that Wallace’s Florida conviction for
aggravated assault also categorically qualifies as a crime of violence
under the elements clause in § 4B1.2(a)(1).
B. Four-Level Increase Under U.S.S.G. § 2K2.1(b)(6)(B)
Section 2K2.1(b)(6)(B) provides for a four-level increase in
the offense level if the defendant “used or possessed any firearm or
ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). The commentary to § 2K2.1 defines “another
felony offense” for purposes of § 2K2.1(b)(6)(B) as “any federal,
state, or local offense . . . punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was
brought, or a conviction obtained.” Id. cmt. n.14(c) (emphasis added).
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 9 of 14

-- 9 of 14 --

10 Opinion of the Court 22-12258
Once a defendant objects, the government bears the burden
to prove the facts supporting a sentencing enhancement by a
preponderance of the evidence. United States v. Grady, 18 F.4th
1275, 1291-92 (11th Cir. 2021). It is well settled that sentencing
courts may consider conduct for which a defendant has been
acquitted if the government proves that conduct by a
preponderance of the evidence and the enhancement results in a
sentence below the maximum statutory penalty authorized by the
jury’s verdict. United States v. Maddox, 803 F.3d 1215, 1220 (11th
Cir. 2015); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.
2005) (holding that after United States v. Booker, 543 U.S. 220 (2005),
a sentencing court applying the Sentencing Guidelines in an
advisory manner can consider acquitted conduct when
determining a sentence without violating the Sixth Amendment
“as long as the judge does not impose a sentence that exceeds what
is authorized by the jury verdict”).
Wallace does not challenge the district court’s finding that
the undisputed facts in the PSI supported the four-level increase.
Instead, Wallace argues that the four-level increase violated the
Sixth Amendment because it was based on his dismissed state
felony charges that “w[ere] not proven to a jury.” Wallace
acknowledges that the commentary to § 2K2.1 allows uncharged
conduct to support the enhancement, but argues the commentary
is not binding where it violates the Constitution.3 He also
3 We decline to address Wallace’s argument—raised for the first time in his
reply brief—that the commentary’s definition of “another felony offense”
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 10 of 14

-- 10 of 14 --

22-12258 Opinion of the Court 11
acknowledges our well-settled precedent to the contrary but asks
us to “reconsider the issue.”4
Wallace’s 96-month sentence was below the ten-year
statutory maximum applicable to his offense of conviction. See 18
U.S.C. § 924(a)(2) (2015).5 Thus, under this Court’s well-settled
precedent, the district court’s reliance on Wallace’s dismissed state
charges to support the four-level increase in his offense level did
not violate Wallace’s Sixth Amendment rights. Under our prior
panel precedent rule, we are bound by this precedent and cannot
“reconsider” it, as Wallace suggests. See United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008) (explaining that “a prior panel’s
holding is binding on all subsequent panels unless and until it is
overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.”).
C. Motion for Downward Departure Under U.S.S.G.
§ 4A1.3(b)
A district court may depart downward from the guidelines
range when reliable information suggests that a defendant’s
criminal history category substantially over-represents the
contradicts the plain text of § 2K2.1(b)(6)(B). See United States v. Campbell, 26
F.4th 860, 870-873 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95 (2022).
4 We review both the district court’s interpretation and application of the
Sentencing Guidelines and any constitutional challenges to a sentence de novo.
Maddox, 803 F.3d at 1220.
5 Section 924 has since been amended, and the statutory maximum is now
fifteen years. See 18 U.S.C. § 924(a)(2).
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 11 of 14

-- 11 of 14 --

12 Opinion of the Court 22-12258
seriousness of the defendant’s criminal history or the likelihood
that the defendant will reoffend. U.S.S.G.§ 4A1.3(b). On appeal,
Wallace argues that the district court should have granted his
motion for a downward departure because many of his scored
prior convictions were “minor in nature.”
We lack jurisdiction to review the denial of a motion for
downward departure “unless the district court incorrectly believed
that it lacked the authority to depart from the guidelines range.”
United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016).
“[W]hen nothing in the record indicates otherwise, we assume the
sentencing court understood it had authority to depart
downward.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.
2006) (quotation marks omitted).
We agree with the government that we lack jurisdiction to
review Wallace’s challenge to the denial of his departure motion.
Nothing in the record indicates the district court believed it lacked
authority to depart downward from the advisory guidelines range
under § 4A1.3(b).
We find no merit to Wallace’s argument that this Court was
“not divested of jurisdiction” because the district court “never
specifically ruled on” his requested departure. While the district
court did not explicitly state that Wallace’s departure request was
denied, the district court’s statements during the record as a whole
leave us with no doubt that it in fact denied the request and left
Wallace’s criminal history category at category VI, as originally
calculated in the PSI.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 12 of 14

-- 12 of 14 --

22-12258 Opinion of the Court 13
For example, the district court observed that Wallace’s
extensive criminal history was what drove the advisory guidelines
range (110 to 120 months) so high and agreed with the
government’s position that this was appropriate given the
seriousness of his criminal history and the need to protect the
public. The district court also reiterated that Wallace had a
criminal history category of VI when it explained its decision to
give a downward variance (14 months) to ensure Wallace’s
sentence was not disparate to similarly situated defendants. The
district court stated that it was “granting in part” Wallace’s motion,
which was styled as a motion for both a downward departure and a
downward variance. Finally, after imposing the sentence, the
district court clarified that the chosen sentence was based on the
totality of the circumstances and not on “an explicit finding of an
over statement” of Wallace’s criminal history.
In short, the transcript makes clear that the district court
denied the part of Wallace’s motion that sought a downward
departure under § 4A1.3(b) but granted the part that sought a
downward variance. Accordingly, we do not have jurisdiction to
review the district court’s denial of the departure motion.6
6 To the extent Wallace’s reply brief argues—for the first time on appeal—that
the district court’s decision to impose only a 14-month downward variance
was substantively unreasonable, we do not address that issue. See Campbell, 26
F.4th at 870.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 13 of 14

-- 13 of 14 --

14 Opinion of the Court 22-12258
III. CONCLUSION
For the reasons given, we dismiss for lack of jurisdiction
Wallace’s appeal of the denial of his motion for a downward
departure. We find no error in the district court’s calculation of
Wallace’s offense level using both § 2K2.1(a)(3) and (b)(6)(B) and
affirm Wallace’s 96-month sentence.
AFFIRMED IN PART, DISMISSED IN PART.
USCA11 Case: 22-12258 Document: 36-1 Date Filed: 11/13/2023 Page: 14 of 14

-- 14 of 14 --