UNITED STATES of AMERICA v. Dujuan Dunlap

NOT RECOMMENDED FOR PUBLICATION
File Name: 25a0083n.06
Case No. 24-5270
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
DUJUAN DUNLAP,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
OPINION
Before: BATCHELDER, BUSH, and BLOOMEKATZ, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Dujuan Dunlap appeals the sentence
imposed following his guilty plea for his being a felon in possession of a firearm. We AFFIRM.
I.
On a late Saturday night and early Sunday morning in May 2021, a number of people were
congregating and socializing in the lot of a Marathon gas station and convenience store. A
surveillance camera was mounted on the building above the door, aimed at the two gas pump
islands in the center of the lot. The camera recorded the following events on video, without sound.
At about 1:45 a.m., Dujuan Dunlap drove a silver sedan into the lot and pulled up to the
left side of the gas pump island on the left (in the video), facing the camera, as if he were going to
get gas. He parked there for the next hour. At no point did he pump any gas. Over the course of
that hour, cars and people came and went, but there were consistently five to ten (or more) cars
crowded into the lot, and as many people milling around. In the video, Dunlap is slender with
long, braided hair, a white ball cap, a white tank-top shirt, light blue jeans, and a handgun tucked

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into his waistband. According to the record, Dunlap is blind in his left eye. The front seat
passenger with Dunlap was Neferteri Rollins, who was wearing a denim jacket and white shorts.
Over the next hour, Dunlap and Rollins fraternized with numerous people in the lot, but returned
to sit in the car frequently, and occasionally went into the convenience store.
At about 2:43 a.m., there were seven cars and twelve people spread across the lot. Dunlap
was standing between his car and the gas pump, next to a man leaning on the car, while Rollins
stood on the other side of the car, apparently talking with Dunlap. A red four-door pickup truck
with tinted windows pulled into the upper edge of the lot and stopped by the street beyond the gas-
pump island on the right (at the top right corner of the video). Bobby McGuire got out of the front
passenger seat, walked past (to the right of) a car parked at the right side of the gas-pump island
on the right, well away from Dunlap, and walked towards the store. McGuire was wearing a black
“hoodie” sweatshirt with the hood up, and black sweatpants. He had a handgun, but it was not
evident in the video. As McGuire walked into the store, Dunlap wandered several feet toward the
red pickup, looked at it briefly, and returned to his car.
While McGuire was in the store, Dunlap looked over at the red pickup several times,
walked over and spoke with a woman near the gas-pump island on the right (whereupon she
immediately walked away and left the scene), and then returned to sit in the driver’s seat of his car
with the door open. After about two minutes, McGuire emerged from the store and as he was
walking back to the pickup along the same path he had taken to enter the store (along the right side
of the lot and video), the pickup pulled out onto the street, circled left into the street (along the top
of the video), and then pulled back in along the edge of the lot, stopping parallel to the street,
between the two islands (at the top middle of the video), about 20 feet behind (to the left of) where
it had parked originally. Apparently seeing this, McGuire altered course and walked to the left,

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with his hands in his pockets, across the front of the lot and around the front and passenger side of
Dunlap’s car. It did not appear that McGuire and Dunlap had any interaction as this was
happening.
But as McGuire passed the rear of Dunlap’s car, Dunlap leaned out of the open driver’s
side door. Without ever looking back, McGuire continued walking past the pump island on a path
toward the red pickup, at which point Dunlap apparently said something that caused McGuire to
stop and turn around. As McGuire stood facing Dunlap, hands in his pockets with the pump island
between them, Dunlap suddenly sprang from his car, gun in hand, and started shooting. He moved
quickly to his right, around the gas pump, trying to get a clear shot at McGuire. As McGuire
retreated to the left, Dunlap followed him around the gas pump, still shooting. McGuire, while
retreating, drew his own gun to shoot back, but was hit and fell to the ground behind the passenger
side of Dunlap’s car. Dunlap ran around the front of his car and continued shooting at McGuire
as McGuire staggered to his feet, shot back, and tried to escape behind the car parked to the left of
Dunlap’s car. Dunlap circled around the front of that car, still shooting and when McGuire went
down again, Dunlap approached and shot him several times at close range as he lay on the ground.
During the shooting, a woman jumped from the red pickup and ran towards McGuire, but
retreated into the street as Dunlap shot McGuire at close range, and only rushed to McGuire’s body
when Dunlap left it. The red pickup fled into the street and out of view (to the right), and the other
cars and people in the lot also rapidly fled the scene. Dunlap then ran back to his car, jumped in,
and sped off. Moments later, the red pickup reemerged (from the left of the screen) and stopped
near McGuire’s body. The male driver and a female passenger jumped out and rushed to McGuire.
The driver picked up McGuire’s gun and tossed it into the backseat of the pickup. Then the three

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of them (driver and two females), with the help of a bystander, loaded McGuire’s body into the
pickup and drove off. McGuire was pronounced dead on arrival at the hospital.
When the police arrived at the Marathon station, they found McGuire’s blood on the ground
and collected several .45 caliber shell casings. On the ground where Dunlap’s car had been parked,
they found a cellphone with an app (“CashApp,” a digital wallet) containing the username “DuJuan
Dunlap.” They also obtained and reviewed the surveillance video just described. Suspecting the
shooter was Dunlap, detectives created a photo array to show to the two gas station employees
who were present at the time of the shooting. Both of them picked Dunlap from the array,
identified him as the shooter, and said he “was a regular in the store and always had a gun in his
waistband.”
When the police located and arrested Dunlap the next day, he had a loaded .45 caliber
handgun. Ballistics testing matched that gun to a shell casing recovered at the Marathon station
after the shooting.
A federal grand jury indicted Dunlap as a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924, and Dunlap pled guilty without a plea agreement. The
presentence investigation report (PSR) concluded that a preponderance of the evidence showed
that Dunlap had used the firearm to murder McGuire, and recommended that the district court
apply the U.S.S.G. § 2A1.1(a) cross-reference for first-degree murder, which raised the offense
level from 20 to 43. At sentencing, Dunlap opposed the cross-reference, arguing that he acted in
self-defense and that under Tennessee law, self-defense provides a complete defense to criminal
liability. The government countered that Tennessee law also requires that a person engaged in
unlawful activity has a duty to retreat before using deadly force in self-defense; that Dunlap, a
twice-convicted felon, was engaged in unlawful activity by possessing a firearm; and, therefore,

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because he did not retreat, Dunlap could not assert self-defense. The court agreed with government
and denied Dunlap’s self-defense claim, but found no premeditation to support first-degree
murder. Instead, the court found that Dunlap had committed second-degree murder under
Tennessee law, and applied the U.S.S.G. § 2A1.2(a) cross-reference, which raised the offense level
from 20 to 38.
After deducting three levels for acceptance of responsibility, the total offense level of 35
and criminal history category of IV produced an advisory range of 235 to 293 months in prison.
But at that time, the statutory maximum for this § 922(g)(1) conviction was ten years, so the
applicable range was 120 months. The court considered the § 3553 factors and imposed a below
guidelines sentence of 110 months.
II.
Dunlap argues that the district court misunderstood or misapplied Tennessee law when it
denied his claim of self-defense; he contends that the illegal possession of a firearm is not
“engaging in illegal activity” for purposes of invoking self-defense under Tennessee law.1 This is
a question of law that we review de novo. United States v. Bradford, 822 F. App’x 335, 338 (6th
Cir. 2020); United States v. Scheiblich, 788 F. App’x 305, 308 (6th Cir. 2019).
The applicable provision of Tennessee’s self-defense statute says: “Notwithstanding § 39-
17-1322, a person who is not engaged in conduct that would constitute a felony or Class A
misdemeanor and is in a place where the person has a right to be has no duty to retreat before
threatening or using force intended or likely to cause death or serious bodily injury, if” three factors
1 Dunlap also insists that the district court’s “factual finding that he did not act in self-defense was clearly
erroneous.” But, as analyzed herein, the determinative issue in this appeal is the application of Tennessee law based
on two undisputed facts (that Dunlap was a felon in possession of a firearm, and he did not retreat before using deadly
force). Even if we accept Dunlap’s version of every other fact, contested or otherwise, he cannot justify the killing
based on self-defense under Tennessee law. Therefore, we need not reach this fact-based claim.

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are met. Tenn. Code Ann. § 39-11-611(b)(2). For our purposes, we can accept that Dunlap had a
right to be at the Marathon station and met the three contingent factors. On the other hand, two
critical facts are not in dispute: Dunlap’s possession of the firearm was unlawful, and he could
have retreated but did not retreat before shooting and killing McGuire. So, streamlining and
rephrasing the self-defense provision: Notwithstanding § 39-17-1322, a person who is engaged in
illegal conduct does have a duty to retreat before using deadly force. See id.
The narrow question here is whether, for purposes of Tennessee’s self-defense provision,
the unlawful possession of a firearm is “illegal conduct,” such that a person unlawfully in
possession of a firearm has a duty to retreat before using that firearm in self-defense. And the
Tennessee Supreme Court has held that it does. Tennessee v. Perrier, 536 S.W.3d 388, 404 (Tenn.
2017) (holding that “the defendant’s possession of a firearm when he was a convicted felon
amounted to engaging in unlawful activity,” meaning that it was illegal conduct for purposes of
the self-defense provision); see also Tennessee v. Turner, 2024 WL 808713, at *7 (Tenn. Crim.
App. Feb. 27, 2024); Tennessee v. Newson, 2022 WL 2251303, at *9 (Tenn. Crim. App. June 23,
2022).2
Dunlap argues that the provision’s opening caveat, “Notwithstanding § 39-17-1322,”
excludes unlawful possession of a firearm from § 39-11-611(b)(2)’s meaning of illegal conduct
because § 39-17-1322 provides a defense to prosecution for firearms offenses when the firearm
was used in justifiable self-defense. See Perrier, 536 S.W.3d at 388. But Perrier considered and
rejected Dunlap’s exact argument with respect to these statutes, explaining that § 39-17-1322
2 The Tennessee Supreme Court decided Perrier under a prior version of T.C.A. § 39-11-611 that used the
phrase “not engaged in unlawful activity.” In April 2021, Tennessee amended § 39-11-611 to replace the phrase “not
engaged in unlawful activity” with the phrase “not engaged in conduct that would constitute a felony or Class A
misdemeanor.” 2021 Tenn. Pub. Acts Ch. 115, § 3. Despite this change in language, Tennessee courts continue to
recognize Perrier’s holding as an authoritative construction of § 39-11-611(b)(2). See, e.g., Tennessee v. Southern,
2025 WL 338066, at *8-11 (Tenn. Crim. App. Jan. 9, 2025).

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simply means that a defendant “may be acquitted of a weapons offense if a jury finds that his self-
defense was justifiable.” Id. at 404. It did not mean that “a defendant’s weapons violation was
not ‘unlawful activity’ for purposes of the self-defense statute.” Id. at 404 n.7.
Because Dunlap, a two-time convicted felon, unlawfully armed himself, he had a duty to
retreat from any confrontation with McGuire before using deadly force. Dunlap could have
retreated but he did not; instead, he attacked and pursued, repeatedly shot, and ultimately executed
McGuire. Under Tennessee law, T.C.A. § 39-11-611(b)(2), self-defense did not justify Dunlap’s
use of deadly force, and this killing would constitute second-degree murder. Consequently, the
district court appropriately applied the cross reference for second-degree murder.
Dunlap also claims that his 110-month, below-guidelines sentence was “substantively
unreasonable” based on his view that the district court miscalculated the advisory range by denying
his claim of self-defense and applying the second-degree murder cross reference. But whether the
district court correctly calculated the advisory Guidelines range (e.g., appropriately applied the
§ 2A1.2 cross reference to increase the offense level) is a question of procedural reasonableness,
not substantive. United States v. Gates, 48 F.4th 463, 468-69 (6th Cir. 2022) (“The reasonableness
inquiry has two components: procedural and substantive. . . . Procedural error occurs when the
district court fails to calculate (or improperly calculates) the Guidelines range. . . .” (cleaned up)).
In the preceding paragraphs, we analyzed and rejected Dunlap’s challenge to the Guidelines
calculation (i.e., his procedural reasonableness argument). Dunlap has not made a “substantive
reasonableness” argument and we decline to make one for him.
III.
For the forgoing reasons, we AFFIRM the judgment of the district court.

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