           Case: 19-11796   Date Filed: 02/03/2020   Page: 1 of 16


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11796
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:18-cr-00397-LSC-JEO-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

JOHN CHRISTOPHER DOBBS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (February 3, 2020)

Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM:
                 Case: 19-11796        Date Filed: 02/03/2020         Page: 2 of 16


       John Dobbs appeals his 120-month sentence for possession of a firearm as a

convicted felon. Dobbs raises two issues on appeal. First, he argues that the

district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure

by failing to find that he used the firearm in connection with kidnapping his

then-wife. Second, Dobbs argues that, even if the district court did not violate

Rule 32(i)(3)(B), it clearly erred by applying an upward offense-level adjustment

because there was insufficient evidence that he kidnapped her. We hold that the

district court’s finding that Dobbs used a firearm in connection with a kidnapping

was neither procedurally nor substantively defective. Accordingly, we affirm

Dobbs’s sentence.

                                                   I.

    A. Facts

        On January 24, 2018, J.B. 1 called the police from a fire station in

Tuscaloosa, Alabama. When the police arrived, J.B. was “emotionally distraught,”

“[t]errified,” “shaking,” and visibly injured. She reported that her husband, Dobbs,

had beaten her and held her against her will. 2 She also told the police that Dobbs

was currently armed with a pistol. The police then located Dobbs, arrested him,




       1
          Although Dobbs’ former wife testified in open court at the sentencing hearing, in the
interest of J.B.’s privacy, the parties reference her by her initials in their briefs and therefore we
do so here.
        2
          J.B. and Dobbs divorced in December 2018.
                                                   2
              Case: 19-11796    Date Filed: 02/03/2020    Page: 3 of 16


and recovered his firearm, which was loaded with 13 rounds of ammunition.

Dobbs and J.B. provided different descriptions of the circumstances leading up to

J.B.’s frantic call and Dobbs’s arrest. We begin with the undisputed facts.

      In January 2018, J.B. picked up Dobbs from a drug treatment facility in

Birmingham, Alabama. The couple spent three or four days using drugs in a hotel

room before continuing their drive to Tuscaloosa, Alabama. They arrived in

Tuscaloosa on January 23, 2018 and immediately went to a Title Loan store. With

cash in hand, they bought two cell phones and then got a hotel room. Next, they

went to a pawn shop. Here is where the stories begin to diverge.

      At the sentencing hearing, J.B. testified that it was Dobbs who wanted to

buy the gun from the pawn shop, and he told her that “if [she] didn’t go get the

gun, he was going to—he would kill [her] regardless.” J.B. told Dobbs that she did

not want to buy the gun and he replied, “[y]ou’re going to buy the f**king gun.”

J.B. feared disobeying him because he had abused her in the past. Dobbs walked

J.B. through the necessary steps to buy the gun at the pawn shop—or, as J.B. put it,

“he might as well walked in there and got it hisself [sic].” And after J.B.

purchased the gun, Dobbs took it and loaded it with ammunition. Dobbs kept the

gun in his possession for the remainder of the time J.B. was with him.

      As Dobbs tells it, they went to the pawn shop to buy a gun because Dobbs

planned to get a night job and J.B. needed a gun for protection. He claims that he


                                          3
              Case: 19-11796      Date Filed: 02/03/2020    Page: 4 of 16


did not fill out the paperwork for J.B. but stood near the bullets in a separate area

of the pawn shop. He argues that J.B. could have asked the clerk for help at that

point, and other points during their trip, if she believed he was holding her against

her will.

      According to J.B., when the two returned to the hotel after purchasing the

gun, Dobbs beat her and would not let her leave the room. J.B. testified that in the

past, Dobbs had been mentally, physically, emotionally, and sexually abusive.

And at some point, Dobbs told J.B. that if she called 9-1-1, he would kill her. J.B.

testified that if she tried to leave the hotel, “he would have hurt [her].”

      They went to another title loan store the next morning. J.B. drove. She

testified that she did not want to be with Dobbs at all but believed Dobbs would

kill her if she refused to drive to the store. Dobbs still had the gun at that point.

They parked in front of the store, and Dobbs got out of the car, leaving the keys

behind with J.B. As soon as Dobbs closed the door, J.B. turned the car on, drove

to a nearby fire station, and called the police.

      During his allocution, Dobbs admitted that he had hit his wife, but

maintained that he never kidnapped her. He claimed he would never “kill her, hurt

her or her family to the point where it was just out of control.”

   B. Plea and Sentencing




                                            4
                 Case: 19-11796        Date Filed: 02/03/2020         Page: 5 of 16


        Upon his arrest on January 24, 2018, Dobbs was charged with kidnapping in

the first degree, domestic violence in the third degree, and unlawful possession of a

firearm. In September 2018, the grand jury returned a one-count indictment for

possession of a pistol as a convicted felon. 18 U.S.C. § 922(g)(1). Dobbs entered

an unnegotiated guilty plea.

        In the Presentence Investigation Report (“PSI”), the probation officer

determined that the proper sentencing guideline for a violation of 18 U.S.C. §

922(g)(1) is U.S.S.G. § 2K2.1. That section provides that if the defendant was a

“prohibited person” when he committed the instant offense, the base level offense

is 14. U.S. Sentencing Guidelines Manual § 2K2.1(a)(6)(A) (U.S. Sentencing

Comm’n 2004). The Guidelines define a “prohibited person” as any person who

has been convicted of any crime punishable for a term exceeding one year. Id.,

cmt. (n.3).3 Because Dobbs had prior felonies, he was a prohibited person at the

time of the offense. The probation officer then found that, because Dobbs used the

firearm in connection with another felony—here, kidnapping—the base-offense

level should be increased by 4 to 18 pursuant to U.S.S.G. § 2K.1(b)(6)(B). And

after applying the cross reference in U.S.S.G. § 2K2.1(c)(1)(A), the probation




        3
         The “commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).


                                                   5
                Case: 19-11796       Date Filed: 02/03/2020       Page: 6 of 16


officer determined that the base offense level for the substantive offense should

apply. 4 Because the substantive offense was kidnapping, the probation officer

applied U.S.S.G. § 2A4.1(a), which established Dobbs’s base-offense level at 32.

Pursuant to U.S.S.G. § 2A4.1(b)(3), the probation officer increased the base-

offense level by two because Dobbs’s offense involved a dangerous weapon. The

probation officer then applied a 3-level downward adjustment for Dobbs’s

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total

offense level of 31.

       The PSI also recited Dobbs’s criminal history, which included several felony

convictions. The probation officer calculated Dobbs’s criminal history score as 16,

which placed him in criminal history category VI. The probation officer noted that

the statutory maximum sentence for Dobbs’s offense was 120 months. Based on

Dobbs’s offense level of 31 and criminal history category of VI, the probation

officer determined that the Guidelines imprisonment range was 188 to 235 months.

But because this range exceeded the statutory maximum sentence, the probation

officer concluded that the appropriate Guideline imprisonment term was 120

months.



       4
          The level for the substantive offense applied because under the cross reference in
U.S.S.G. § 2K2.1(c)(1)(A), if the defendant used or possessed a firearm in connection with the
commission of another offense, U.S.S.G. § 2X1.1 is applied in respect to that offense so long as
the resulting offense is higher than the calculation under U.S.S.G. § 2K2.1. Section 2X1.1
directs that the base offense level from the guideline for the substantive offense is applied.
                                                6
               Case: 19-11796       Date Filed: 02/03/2020      Page: 7 of 16


       Dobbs filed two objections to the PSI. 5 He first objected that his offense

level should not have been increased to 32 pursuant to U.S.S.G. §§ 2A4.1(a) and

2K2.1(c)(1)(A) in paragraph 13 of the PSI. His first written objection states:

       The Defendant objects to the increase to level 32. The Defendant
       denies that he used the firearm other than the possession it [sic] which
       he has already pled guilty to. Additionally, he has not been found
       guilty nor pled guilty to any other charges related to his wife [sic]
       allegations.

In addition, Dobbs objected to the two-level enhancement for use of a firearm in

paragraph 14:

       The Defendant was increased 2 levels. The Defendant denies the use
       of the firearm. He has pled to possession of said firearm. He would
       also argue that this increase is a double counting and should not be
       applied.

After Dobbs filed these objections, the district court continued the sentencing

hearing to allow witnesses to testify.

       At this continued hearing, the government called two witnesses who testified

to the facts surrounding the alleged kidnapping and the timing of the acquisition of

the gun: the victim and the police officer who interviewed her. The victim testified

that on the same night that Dobbs purchased the gun, Dobbs beat her and would

not let her leave the hotel room. The police officer then took the stand and



       5
         In making these objections, Dobbs objected to only the paragraphs in the PSI which
summarized the base-level calculations and adjustments (paragraphs 13 and 14) but not the
factual paragraphs underlying the proposed offense-level adjustments (paragraphs 5 through 8).
                                               7
             Case: 19-11796     Date Filed: 02/03/2020   Page: 8 of 16


described the victim’s injuries following the kidnapping, as well as Dobbs’s arrest.

Dobbs did not testify, and he did not call any witnesses. At the conclusion of the

government witnesses’ testimony, the district court overruled Dobbs’s objections

to the PSI and determined that the enhancement based on the kidnapping was

proper:

      the guideline calculations as stated are correct; that is, the guideline
      offense level – and this Court adopts the factual statements contained
      in the presentence report and makes specific findings that the
      guidelines offense level is thirty-one, the criminal history category is
      VI, the advisory guideline imprisonment range is one hundred twenty
      months, the supervised release period is one to three years . . .

In so ruling, the district court necessarily found that the kidnapping elements were

met and that a gun was used in the kidnapping. When the district court asked for

Dobbs’s response, his counsel replied that “he stands on the objection that we filed,

and we certainly deny the allegations of the kidnapping.”

      The district judge then allowed Dobbs to speak to the court before

pronouncing the sentence. He repeatedly stated that he did not kidnap his wife and

that she could have left or asked for help at any time. Following Dobbs’s unsworn

statements, the district court sentenced Dobbs to the statutory maximum of 120

months. The district court asked whether Dobbs had any objections regarding the

findings of fact, the calculations, the sentence or the manner in which the sentence

was pronounced or imposed. Dobbs’s counsel replied that he had none. This

appeal followed.
                                          8
              Case: 19-11796    Date Filed: 02/03/2020   Page: 9 of 16


                                         II.

   A. The District Court Did Not Violate Rule 32 of the Federal Rules of Criminal
      Procedure.

      Federal Rule of Criminal Procedure 32(i)(3)(B) provides that during

sentencing, the district court “must—for any disputed portion of the presentence

report or other controverted matter—rule on the dispute or determine that a ruling

is unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).

      Dobbs argues that the district court violated this rule because it did not make

any specific factual findings regarding Dobbs’s objections to the kidnapping

enhancement pursuant to § 2K2.1(c)(1), but rather the district court summarily

overruled his objection at the conclusion of the hearing. In response, the

government argues that the district court ruled on Dobbs’s objection, thereby

satisfying Rule 32(i)(3)(B).

      In general, we review a district court’s application of Rule 32 de novo. See

United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006). But if the

defendant does not preserve the objection in the district court, we will review only

for plain error. See Fed. R. Crim. P. 52(b); United States v. Henderson, 409 F.3d

1293, 1307 (11th Cir. 2005). Under this standard, an appellant must show an error

that is plain and affects substantial rights. Henderson, 409 F.3d at 1307. Even

assuming de novo review applies, the district court did not violate Rule 32(i)(3)(B).
                                          9
               Case: 19-11796   Date Filed: 02/03/2020    Page: 10 of 16


      A defendant triggers Rule 32(i)(3)(B) only by objecting to statements of fact

that are in the PSI. See United States v. Owen, 858 F.2d 1514, 1517 (11th Cir.

1988) (discussing Fed. R. Crim. P. 32(c)(3)(D)—the predecessor to Rule

32(i)(3)(B)). Defendants must assert challenges to factual statements from the PSI

“with specificity and clarity.” United States v. Bennett, 472 F.3d 825, 832 (11th

Cir. 2006). If a defendant’s objections do not satisfy the specificity and clarity

requirements, they are waived. See id.

      Here, Dobbs objected to the application of the kidnapping enhancement

pursuant to §2K2.1(c)(1) because he did not plead guilty to charges related to his

wife and because he only possessed the gun but did not actually use it.

Accordingly, the district court held an evidentiary hearing and heard testimony

about the kidnapping and the firearm issues. The district court then ruled on

Dobbs’s objections to the kidnapping enhancement. It adopted the factual

statements in the PSI, determined that the guidelines calculations were correct, and

overruled Dobbs’s objections. Rule 32 requires the district court to rule on

disputed issues, and, following an evidentiary hearing, the district court did just

that: it ruled that the kidnapping sentencing enhancement pursuant to the

Guidelines was proper. Accordingly, the district court did not violate Rule

32(i)(3)(B).




                                          10
             Case: 19-11796      Date Filed: 02/03/2020    Page: 11 of 16


      Dobbs also argues that the district court failed to consider the timing of

when J.B. was kidnapped for the purposes of the enhancement and failed to make

specific factual findings regarding the elements of kidnapping. Dobbs did not

object to the timing or elements of kidnapping before the district court. Therefore,

plain error review applies. See Henderson, 409 F.3d at 1307.

      As an initial matter, Dobbs did not make “clear and focused objections” to

these factual issues. Owen, 858 F.2d at 1517. He therefore did not trigger the

district court’s obligation under Rule 32 to rule on these objections. More

importantly, however, both the timing and the elements of the kidnapping were

sufficiently addressed in the evidentiary hearing that the district court convened to

address Dobbs’s objections to the PSI. The district court’s subsequent ruling on

this objection necessarily resolved these issues as well. Accordingly, there is no

error and certainly no plain error.

   B. The District Court’s Findings About Kidnapping Were Not Clearly
      Erroneous

      Dobbs also argues that the district court clearly erred in finding that the

enhancement pursuant to U.S.S.G. § 2K2.1(c)(1)(A) was warranted because Dobbs

used or possessed the firearm in connection with kidnapping J.B. In general, this

Court reviews a district court’s factual findings, as well as its application of the

Sentencing Guidelines to the facts, for clear error. United States v. Rothenberg,

610 F.3d 621, 624 (11th Cir. 2010); United States v. Williams, 340 F.3d 1231,
                                           11
              Case: 19-11796       Date Filed: 02/03/2020      Page: 12 of 16


1239 (11th Cir. 2003) (“Where a determination turns primarily on the evaluation of

facts . . . that are more accessible to the district court than to the court of appeals,

we will defer to the district court's application of the law to those facts and apply

‘clear error’ review.”). A finding will not be considered clearly erroneous if it is

plausible in light of the record as a whole, see United States v. Ladson, 643 F.3d

1335, 1341 (11th Cir. 2011), or if it is based on one of two permissible views of

the evidence. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

Dobbs asserts the district court clearly erred because the record was insufficient to

establish (1) if and when J.B. was kidnapped; and (2) whether Dobbs used or

possessed the pistol in connection with the kidnapping. We take each issue in turn.

       i.     Kidnapping

       Here, the district court imposed an enhanced sentence because it adopted the

PSI’s findings that Dobbs possessed a gun in connection with the kidnapping of his

wife.6 Dobbs contends that the district court clearly erred in finding that the

elements of kidnapping were met. Our review of the record reveals otherwise.

       In Alabama, “a person commits the crime of kidnapping in the first degree if

he abducts another person with intent to . . . accomplish or aid in the commission



       6
          Dobbs was charged with, but not convicted of, felony kidnapping. Still, sentencing
courts may consider both uncharged and acquitted conduct in determining the appropriate
sentence “so long as that conduct has been proved by a preponderance of the evidence.” United
States v. Watts, 519 U.S. 148, 157 (1997); United States v. Hasson, 333 F.3d 1264, 1279 n. 19
(11th Cir. 2003).
                                              12
               Case: 19-11796       Date Filed: 02/03/2020       Page: 13 of 16


of any felony . . . [i]nflict physical injury upon him or abuse him sexually . . . or

terrorize him. . . .” Ala. Code § 13A-6-43(a). 7 Kidnapping in the first degree is a

felony. Ala. Code § 13A-6-43(c). Kidnapping in the second degree is also a

felony and occurs when a person abducts another person. Ala. Code § 13A-6-44.

For the purposes of these crimes, the term “abduct” means “[t]o restrain a person

with intent to prevent his liberation by either secreting or holding him in a place

where he is not likely to be found, or using or threatening to use deadly physical

force.” Ala. Code § 13A-6-40(2). “Thus, in order to be abducted, a person must

be restrained.” Grayson v. State, 824 So. 2d 804, 816 (Ala. Crim. App. 1999). To

“restrain” someone is to:

       intentionally or knowingly restrict a person's movements unlawfully
       and without consent, so as to interfere substantially with his liberty by
       moving him from one place to another, or by confining him either in
       the place where the restriction commences or in a place to which he
       has been moved. Restraint is ‘without consent’ if it is accomplished
       by . . . [p]hysical force, intimidation or deception.

Ala. Code § 13A-6-40(1)a.

       The record establishes that Dobbs intentionally used physical force and

intimidation to restrict and confine J.B. in the motel room while in possession of

the firearm. According to paragraph 5 of the PSI report (to which Dobbs did not

       7
          Because there has been no allegation that the alleged kidnapping in this case involved
interstate commerce, the federal kidnapping statute does not apply. See 18 U.S.C. § 1201(a);
U.S.S.G. § 2K2.1 (cmt. 14(C) (“‘Another offense’, for purposes of subsection (c)(1), means any
federal, state, or local offense, other than the explosive or firearms possession or trafficking
offense, regardless of whether a criminal charge was brought, or a conviction obtained.”)).
                                               13
             Case: 19-11796      Date Filed: 02/03/2020    Page: 14 of 16


object), J.B. told the police that Dobbs “held her against her will and physically

abused her the night before.” She reported that Dobbs made her purchase a pistol

for him and “she feared Dobbs would hurt her” if she refused. At the hearing, J.B.

testified that she “didn’t want to be with him at all” and that Dobbs “wouldn’t let

[her] out of the hotel that night.” She also testified that he “had the gun” in the

hotel room and was “punching and beating on [her],” and that “he’d kill [her]” if

she called 9-1-1 or refused to go to the title loan shop with him. The record clearly

shows that Dobbs used physical force and intimidation to prevent J.B. from leaving

the motel room. See Ala. Code §§ 13A-6-43(a), 13A-6-44; 13A-6-40(1)a. Thus,

in light of the record of the whole, it is plausible that Dobbs kidnapped his wife

and therefore the district court did not err in applying the enhancement.

      That J.B. initially consented to joining Dobbs—in fact, she picked him up

from the drug treatment facility—does not affect our conclusion. “[I]t is not

necessary that” J.B.’s lack of consent “exist from the beginning of the course of

conduct as long as it is present during the course of conduct.” Grayson, 824 So. 2d

at 816 (holding that defendant kidnapped hitchhiker even though victim voluntarily

entered defendant’s car); see also Mims v. State, 591 So. 2d 120, 128 (Ala. Crim.

App. 1991) (“Even if a victim voluntarily enters a room, a defendant can still be

found guilty of first degree kidnapping if the victim was then intentionally and

unlawfully confined or concealed against her will.”); Musgrove v. State, 519 So. 2d


                                           14
             Case: 19-11796     Date Filed: 02/03/2020    Page: 15 of 16


565, 581 (Ala. Crim. App.), aff’d 519 So. 2d 586 (Ala. 1986) (holding that

defendant was guilty of kidnapping in the first degree where victim voluntarily

entered the defendant's motel room and was then intentionally and unlawfully

confined against her will). Accordingly, the record shows that the kidnapping

began as early as the night J.B. and Dobbs purchased the pistol when Dobbs

prevented J.B. from leaving the hotel room.

      ii.    Using a firearm in connection with the kidnapping

      For the kidnapping enhancement to apply however, Dobbs must have used

or possessed the firearm in connection with the kidnapping. U.S.S.G. §

2K2.1(b)(6). Dobbs contends that because the district court erred in failing to

identify exactly when the kidnapping occurred, it necessarily failed to find that

Dobbs possessed the firearm at the time of the commission of the kidnapping.

Thus, he argues, the cross reference could not apply. We disagree.

      For the purposes of U.S.S.G. §§ 2K2.1(b)(6)(A) and (c)(1)(A), a defendant

is considered to have used a firearm in connection with another crime if the firearm

“facilitated, or had the potential of facilitating,” that offense. U.S.S.G. § 2K2.1,

cmt. (n.14(A)); see also United States v. Carillo-Ayala, 713 F.3d 82, 93 (11th Cir.

2013) (adopting the commentary’s definition of “in connection with”).

      As discussed above, the record shows that Dobbs kidnapped his wife at the

hotel room when he prevented her from leaving through threats and intimidation.


                                          15
             Case: 19-11796     Date Filed: 02/03/2020    Page: 16 of 16


Dobbs does not dispute that he possessed a gun in the motel room. And J.B.’s fear

of the gun prevented her from leaving: when asked during the sentencing hearing if

she could have left the hotel room, she specifically stated, “No, he had a gun.”

Thus, the record indicates that the firearm facilitated or had the potential of

facilitating Dobbs’s abduction of J.B. See U.S.S.G. § 2K2.1, cmt. (n.14(A)). That

he may have kidnapped her before acquiring the gun does not affect the conclusion

that the kidnapping continued after he obtained it.

      In summary, the record shows that Dobbs kidnapped J.B. and used the

firearm in connection with the crime. While Dobbs argued that J.B. was free to

leave the hotel room, his assertion, at best, presents one of two permissible views

of the evidence. See Saingerard, 621 F.3d at 1343. Accordingly, the district court

did not clearly err when it found that Dobbs used the firearm in connection with

kidnapping J.B. and applied the cross-reference in U.S.S.G. § 2K2.1(c)(1)(A)

based on that finding.

      AFFIRMED.




                                          16
