United States of America v. Darris Lamar Mull

United States Court of Appeals
For the Eighth Circuit
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No. 23-3424
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Darris Lamar Mull
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: May 8, 2024
Filed: August 29, 2024
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Before SMITH, KELLY, and KOBES, Circuit Judges.
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SMITH, Circuit Judge.
Darris Lamar Mull pleaded guilty to four counts of being a felon in possession
of firearms, in violation of 18 U.S.C. § 922(g)(1). Mull’s presentence investigation
report (PSR) assessed a base offense level of 20 pursuant to U.S.S.G.
§ 2K2.1(a)(4)(B) because “the offense involved a semiautomatic firearm capable of
accepting a large capacity magazine and [Mull] was a prohibited person at the time
[he] committed the instant offense.” R. Doc. 98, at 9. Mull objected, arguing that his

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codefendant—not him—was responsible for that firearm. The district court1 overruled
the objection and sentenced Mull to 135 months’ imprisonment. On appeal, Mull
challenges the district court’s application of the § 2K2.1(a)(4)(B) enhancement.
Additionally, for the first time on appeal, Mull argues that 18 U.S.C. § 922(g)(1)
violates his Second Amendment rights. We affirm.
I. Background
Mull, Cartevion Chapman, and Nicholas Caligone were together at a nightclub
when someone began shooting in the parking lot. Caligone went outside and saw
police marking off the perimeter. He also observed that his vehicle and Chapman’s
vehicle had been shot. Caligone spoke about the shooting with Helen Vernor, who
has a child with Mull’s brother. Vernor told Caligone that his vehicle and Chapman’s
vehicle were targeted because Mull may have stolen drugs and money from her
house.
Mull, Chapman, and Caligone left the club and went to a hotel, where they met
with other individuals. Chapman was armed with a Kel-Tec PLR-16 pistol—a “pretty
big” gun—which he sat on the counter in the room where Mull was also present. R.
Doc. 135, at 12. During this time, Mull received a call from his girlfriend, who
informed him that Vernor and several other armed individuals were at Mull’s home
looking for him. Mull’s children were home at the time. The armed individuals left
Mull’s residence upon learning children were present.
After the call, Mull and five or six individuals left the hotel and went to Mull’s
house to check on his family. Chapman and Mull rode with Caligone. Once at Mull’s
house, Caligone and Chapman stayed in the car. During that time, Chapman received
1The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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multiple phone calls from Vernor, who requested that they come to her residence.
When Mull came out of his house, he said, “Let’s go to Helen’s house.” Id. at 16.
Chapman rode with Caligone, while Mull rode with another friend.
Upon arriving at Vernor’s home, Caligone attempted to park in the driveway,
but Chapman told Caligone not to park there to avoid getting blocked in. Caligone
then parked on the side of the road. Chapman got out and walked to another car where
their friends were; Caligone stayed in his car talking on the phone. When Mull got
out of his vehicle at Vernor’s home, “people began shooting at him and his friends.”
R. Doc. 91, at 2. Mull and his companions returned fire. Specifically, Mull discharged
a Smith & Wesson 9mm pistol, while Chapman shot back with the Kel-Tec. When
Caligone heard the gunshots, he tried to leave, but Chapman jumped into his front-
passenger seat. Caligone stopped again when Mull hit on the trunk of his car before
climbing into the back seat.
Shortly thereafter, police pursued Caligone’s car. Chapman told Caligone to
keep driving. During the pursuit, Mull handed Chapman the Smith & Wesson, who
then placed it in the glove box. According to Caligone, Chapman then passed the Kel-
Tec “back to . . . Mull” in “the back seat.” R. Doc. 135, at 20.2 The Kel-Tec was
“[t]oo big to fit in a glove box.” Id. at 40. After stopping the vehicle, the police
commanded the occupants to exit the vehicle. Caligone and Chapman got out, but
Mull refused to comply and remained in the car. Chapman told a police officer that
Mull had a gun. Eventually, Mull obeyed police commands to exit the vehicle. The
police then searched the vehicle. Law enforcement could see in plain view the
Kel-Tec protruding from underneath the back of the front-passenger seat, near where
Mull had been sitting. It had a large-capacity 30-round magazine. In the glove box,
2In the factual basis for his plea, “Chapman stated he reached around from the
front seat and hid the Kel-Tec . . . under the passenger seat.” R. Doc. 60, at 2 (all caps
omitted).
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the police found the Smith & Wesson. A search conducted around Vernor’s home
uncovered shell casings matching the Kel-Tec and the Smith & Wesson firearms.
Additionally, Mull and Chapman tested positive for gunpowder residue.
Mull was charged with four counts of being a felon in possession of firearms,
in violation of 18 U.S.C. § 922(g)(1). Chapman and Caligone were also charged with
one count of being a felon in possession of a firearm. Mull pleaded guilty, without a
written agreement, to the four counts. The government and Mull stipulated as to the
factual basis for Mull’s guilty plea.
Prior to sentencing, the PSR calculated a base offense level of 20 under
U.S.S.G. § 2K2.1(a)(4)(B), based on the Kel-Tec’s large capacity magazine. The PSR
then assessed a two-level enhancement under § 2K2.1(b)(1)(A) for the number of
firearms; a four-level enhancement under § 2K2.1(b)(4)(B) for a firearm with an
obliterated serial number; and another four-level enhancement under
§ 2K2.1(b)(6)(B) for possession of a firearm in connection with another felony. After
a three-level reduction for acceptance of responsibility, the PSR calculated a total
offense level of 27. With a criminal history category of V, Mull’s advisory Guidelines
range was 120 to 150 months’ imprisonment.
Mull objected to portions of the PSR, challenging his base offense level and
application of the § 2K2.1(a)(4)(B) enhancement. In his objection, he noted that in
Chapman’s signed factual basis for his plea, Chapman admitted to knowingly
possessing the Kel-Tec and to “putting the Kel-Tec . . . under [the] passenger side
seat after the shooting.” R. Doc. 98, at 31 (citing R. Doc. 60, at 2). Additionally,
Caligone’s plea agreement “emphasized that Chapman was carrying the ‘lil machine
gun’ that matched the description of the Kel-Tec.” Id. (citing R. Doc. 69). Mull
pointed out that his stipulated factual basis admitted knowing possession of the Smith
& Wesson, not the Kel-Tec. In his sentencing memorandum, Mull argued that it was
not reasonably foreseeable to him that Chapman would possess the Kel-Tec and that
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he did not constructively possess the gun. As a result, Mull contended that his base
offense level should be 14, resulting in a much lower advisory Guidelines range of
70 to 87 months’ imprisonment. He then requested a downward variance to 36
months’ imprisonment.
At sentencing, Caligone testified about the shootout. Additionally, FBI Task
Force Officer Brad Nicholson testified about the investigation, including the recovery
of the Smith & Wesson and Kel-Tec firearms from the vehicle occupied by Caligone,
Chapman, and Mull. At the conclusion of the testimony, the court indicated its
“inclination” to overrule Mull’s objection to application of the § 2K2.1(a)(4)(B)
enhancement. The court found “[t]he most persuasive part of the enhancement” to be
Caligone’s “testimony regarding the [hotel room] when the gun was on the counter
and [Mull] was present.” R. Doc. 135, at 42.
The court afforded counsel the opportunity to comment before making its final
determination. Mull’s counsel argued that the enhancement should not apply because
no evidence existed that Mull knew or had reason to know that Chapman was a felon
and that Mull assisted Chapman in possession of the Kel-Tec. The district court
expressed confusion as to this argument given that aiding and abetting was never an
asserted theory of liability by the government. The government then gave two reasons
for application of the § 2K2.1(a)(4)(B) enhancement. First, based on relevant
conduct, Mull was involved in joint criminal activity with Chapman when they
engaged in a shooting together. Second, Mull was in constructive possession of the
Kel-Tec because he was aware Chapman had the gun and the gun was visible to him
and within his reach in the vehicle. The district court overruled Mull’s objection,
stating that it “agree[d] with the arguments of the government.” Id. at 47. It
“adopt[ed] the factual content and the calculations [of the PSR] completely and in
total.” Id.
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Ultimately, after hearing further arguments from the parties, the district court
sentenced Mull to a total sentence of 135 months’ imprisonment. The district court
based its sentence on the 18 U.S.C. § 3553(a) factors and noted “that . . . the
appropriate sentence in this case would be 135 months regardless of the ruling in the
enhancement. So, in other words, if the enhancement objection would have been
sustained, that would not have changed the sentence of a 135-month total sentence.”
Id. at 76.
II. Discussion
On appeal, Mull challenges the district court’s application of the
§ 2K2.1(a)(4)(B) enhancement. Additionally, for the first time on appeal, Mull argues
that 18 U.S.C. § 922(g)(1) violates his Second Amendment rights.
A. Sentencing Enhancement
Mull argues that the district court procedurally erred in applying the
§ 2K2.1(a)(4)(B) enhancement. See United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc) (improper calculation of Guidelines range). “To the extent an
asserted procedural error involves interpretation of the guidelines, we review the
district court’s construction and application of the [S]entencing [G]uidelines de
novo.” United States v. Heath, 624 F.3d 884, 886 (8th Cir. 2010). “We review factual
findings at sentencing for clear error under the preponderance-of-the-evidence
standard.” United States v. Fleming, 103 F.4th 509, 514 (8th Cir. 2024).
Mull pleaded guilty to four counts of being a felon in possession of firearms,
in violation of 18 U.S.C. § 922(g)(1). “[A] felon in possession of most firearms would
have a base offense level of 14 . . . .” United States v. Price, 649 F.3d 857, 859 (8th
Cir. 2011) (citing U.S.S.G. § 2K2.1(a)(6)). But “if . . . the . . . offense involved a . . .
semiautomatic firearm that is capable of accepting a large capacity magazine,” the
base offense level is enhanced to 20. U.S.S.G. § 2K2.1(a)(4)(B). A “large capacity
magazine” is a magazine capable of “accept[ing] more than 15 rounds of
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ammunition.” Id. § 2K2.1 cmt. n.2. The Kel-Tec—which Chapman used during the
shootout—is indisputably a semiautomatic firearm capable of accepting a large
capacity magazine. The only question is whether Mull’s “offense involved” the Kel-
Tec. See id. § 2K2.1(a)(4)(B).
“Under the Guidelines, where a guideline provides for more than one base
offense level, the offense level is determined based on a defendant’s relevant
conduct.” United States v. Langford, 533 F. App’x 948, 951 (11th Cir. 2013) (citing
U.S.S.G. § 1B1.3(a); U.S.S.G. § 1B1.1 cmt. n.1(I) (defining “offense” as “the offense
of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a
different meaning is specified or is otherwise clear from the context” (emphasis
added)). Relevant conduct includes
in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert
with others, whether or not charged as a conspiracy), all acts and
omissions that were—
(i) within the scope of the jointly undertaken criminal
activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity;
that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense . . . .
U.S.S.G. § 1B1.3(a)(1)(B) (emphasis added). “The conduct of others that meets all
three criteria . . . (i.e., ‘within the scope,’ ‘in furtherance,’ and ‘reasonably
foreseeable’) is relevant conduct . . . .” Id. § 1B1.3 cmt. n.3(A). “When jointly
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undertaken criminal activity is involved, the focus is on the acts and omissions for
which the defendant is to be held accountable in determining the applicable
sentencing range, not on whether the defendant is criminally liable for an offense.”
United States v. McVay, 996 F.3d 845, 849 (8th Cir. 2021) (citing U.S.S.G. § 1B1.3
cmt. n.1).
“In order to determine the defendant’s accountability for the conduct of others
. . . , the court must first determine the scope of the criminal activity the particular
defendant agreed to jointly undertake (i.e., the scope of the specific conduct and
objectives embraced by the defendant’s agreement).” Id. § 1B1.3 cmt. n.3(B). “[T]he
accountability of the defendant for the acts of others is limited by the scope of his or
her agreement to jointly undertake the particular criminal activity.” Id. In determining
whether a defendant is accountable for another’s conduct, “the court may consider
any explicit agreement or implicit agreement fairly inferred from the conduct of the
defendant and others.” Id.
The district court concluded that Mull’s and Chapman’s participation in the
shootout at Vernor’s home was jointly-undertaken-criminal-activity relevant conduct.
“This finding was not clearly erroneous.” See United States v. Hogue, 66 F.4th 756,
765 (8th Cir. 2023) (standard of review). First, the record supports a finding that Mull
and Chapman agreed to jointly engage in criminal activity and that Chapman’s
possession and use of the Kel-Tec was within the scope of that activity. Mull does not
contest that he and Chapman engaged in criminal activity by shooting firearms at
Vernor’s home. See R. Doc. 135, at 34–35, 37; R. Doc. 60, at 1-2; R. Doc. 91, at 2.
And the evidence shows that Mull and Chapman jointly participated in the shootout
at Vernor’s home. At the time that Mull suggested that they go to Vernor’s home, the
men were aware that (1) Mull’s dispute with Vernor involved drugs and money; (2)
the shooting of Caligone’s and Chapman’s cars occurred because of this dispute; and
(3) Vernor and several armed individuals had just gone to Mull’s home looking for
him. Additionally, while at the hotel, Chapman placed a “pretty big” Kel-Tec on the
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counter in the same hotel room in which Mull was present. R. Doc. 135, at 12. When
the three men departed the hotel for Mull’s residence, they all rode together. Once at
Vernor’s home, Mull and Chapman engaged in a shootout before fleeing the scene
together in Caligone’s car. As a result, Chapman’s use of the Kel-Tec was “within the
scope of the jointly undertaken criminal activity.” Id. § 1B1.3(a)(1)(B)(i).
Second, the record supports a finding that Chapman’s possession and use of the
Kel-Tec “was in furtherance of the jointly undertaken criminal activity.” Id. § 1B1.3
cmt. n.3(C). Chapman used the Kel-Tec to return fire during the shootout at Vernor’s
home.
Finally, the record supports a finding that Chapman’s possession and use of the
Kel-Tec “was reasonably foreseeable” to Mull. Id. § 1B1.3 cmt. n.3(D). Based on the
evidence previously discussed, Mull knew or should have known that another
confrontation with gunfire would result from him, Chapman, and Caligone going to
Vernor’s home. This was not a “random ambush” as Mull suggests. See Reply Br. at
2. Indeed, Mull possessed and used a firearm at Vernor’s residence and should have
reasonably foreseen that Chapman would do the same. Mull admitted as much at
sentencing, stating:
So the guns—whoever had guns or whatever, like I said, this is another
point where I need to be more attentive to myself and my own life, but
it wasn’t just Mr. Chapman who had a firearm. There were other people
who carry firearms. I just was —like, it—you know, like, I’m drinking
and just doing my thing. I wasn’t really focused on people having guns.
So me knowing or not knowing, you know, I—I knew, but I didn't know.
Like, I wasn’t like, oh, that’s his gun, that’s his gun. It was just, like,
never nothing that was on my mind.
R. Doc. 135, at 55–56 (emphasis added).
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In summary, the district court did not clearly err in finding that Mull’s relevant
conduct included Chapman’s possession and use of the Kel-Tec as part of their joint
criminal activity; therefore, the district court’s application of the § 2K2.1(a)(4)(B)
enhancement was not erroneous. 3
B. Second Amendment
Mull next argues, for the first time on appeal, that his felon-in-possession
convictions violate his Second Amendment rights because a federal firearm ban
cannot be imposed except by amendment to the Constitution. He further asserts that
even if Congress could ban a citizen’s right to possess a firearm for prior convictions,
those convictions must be historically recognized.
Mull concedes that plain-error review applies. See Appellant’s Br. at 24; see
also United States v. Simmons, 70 F.4th 1086, 1091 (8th Cir. 2023) (stating that to
satisfy plain-error review, a defendant “must show (1) an error, (2) the error was
plain, and (3) that it affected a substantial right”).
We discern no error, plain or otherwise. Mull’s argument is foreclosed by
Eighth Circuit precedent. See United States v. Jackson, No. 22-2870, 2024 WL
3711155, at *4 (8th Cir. Aug. 8, 2024) (holding that 18 U.S.C. § 922(g)(1) did not
violate the Second Amendment as applied to defendant whose predicate offenses
were non-violent drug offenses); United States v. Lowry, No. 23-2942, 2024 WL
3819783, at *3 (8th Cir. Aug. 15, 2024) (holding that Jackson “foreclosed” the
defendant’s argument “that his conviction under 18 U.S.C. § 922(g)(1) violates his
constitutional right to keep and bear arms under the Second Amendment”); United
States v. Cunningham, No. 22-1080, 2024 WL 3840135, at *3 (8th Cir. Aug. 16,
3Because we hold that the district court did not clearly err in applying the
§ 2K2.1(a)(4)(B) enhancement to Mull based on relevant conduct, we need not
address the government’s argument that Mull constructively possessed the Kel-Tec
or that the district court’s application of the enhancement was harmless.
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2024) (holding that Jackson “foreclosed” the defendant’s argument “that the Second
Amendment guaranteed his right to possess a firearm, despite his status as a twice-
convicted felon, because neither of his prior offenses qualified as a ‘violent’ offense
based on the elements of the crime” because “there is no need for felony-by-felony
determinations regarding the constitutionality of § 922(g)(1) as applied to a particular
defendant”).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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