           Case: 14-14897   Date Filed: 10/01/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14897
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:14-cr-00009-HL-TQL-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                 versus

MICHAEL B. ENOCH,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (October 1, 2015)

Before ROSENBAUM, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:
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      Michael B. Enoch appeals the 60-month prison sentence he received after

pleading guilty to possessing a firearm as a convicted felon, in violation of 18

U.S.C. § 922(g)(1). His sentence represented a 27-month variance above the

advisory guideline range of 27 to 33 months of imprisonment.

      On appeal, Enoch contends that the district court committed the following

errors: it mistakenly believed it did not have the authority to downwardly depart

under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 5K2.12

(Coercion and Duress); it imposed the equivalent of an upward departure for

under-represented criminal history, U.S.S.G. § 4A.13, without providing notice or

following the prescribed procedures; and it otherwise imposed a procedurally and

substantively unreasonable sentence. After careful review of the record and the

parties’ briefs, we vacate and remand for resentencing.

                                         I.

      On September 2, 2013, a police officer on patrol in Moultrie, Georgia,

observed Enoch standing on the side of a road and holding a semi-automatic pistol.

When the officer turned his car around, a female co-defendant took the gun from

Enoch and began to run. Both Enoch and the co-defendant were detained, and

officers retrieved a .40 caliber pistol with a magazine in it. Enoch eventually told

officers that, “due to an altercation down the street,” the co-defendant had tried to

give him the gun for his protection. The co-defendant stated that Enoch already


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had the pistol and she was trying to get him to go inside the house “to avoid getting

into trouble,” but he told her to take the pistol when they observed the police.

      Enoch pled guilty, under a written plea agreement, to one count of being a

felon in possession of a firearm. Before sentencing, a probation officer prepared a

final presentence investigation report (“PSR”) finding Enoch’s advisory sentencing

guideline range to be 27 to 33 months of imprisonment. Enoch was determined to

be in criminal history category V, based on prior convictions for statutory rape,

obstruction of a law enforcement officer, possession of marijuana, battery, and

burglary, and because he committed the instant offense while serving the burglary

sentence. The PSR did not identify any grounds warranting a variance from the

guideline range.

      Enoch moved for a downward departure based on coercion or duress, under

U.S.S.G. § 5K2.12, in his objections to the PSR and at sentencing. He contended

that he only possessed the firearm in question because he was reasonably in fear

for his safety at the time of the offense. At sentencing, defense counsel asserted

that Enoch was being targeted because he had testified against certain individuals

in several criminal trials involving gang activity, and that he already had been

beaten and shot after testifying against one individual. The district court expressed

skepticism about whether coercion or duress could be a defense to the firearm-

possession offense.    After further discussion of the downward departure, the


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district court adopted the PSR and found the guideline range to be 27 to 33 months,

implicitly denying the downward departure.

          The court sentenced Enoch to 60 months in prison, stating that it had

considered the sentencing factors in 18 U.S.C. § 3553(a) and made an

“individualized assessment.” The court stated that it “[made] this upward variance

primarily because of [Enoch’s] past criminal history,” including his convictions for

statutory rape, battery, burglary, and obstruction of an officer. (D.E. 59 at 20). “In

addition,” the court told Enoch, “for the past 11 years you have had no verifiable

employment. As we know now, you’ve never been married, but as your lawyer

has said and as the presentence report said, you have five children, and I think it’s

probably fair to assume that you are not making support payments to any of them.”

(Id.). Enoch personally interjected that he took care of his kids and that he worked

various odd jobs and had filed tax returns. The court responded, “All right[.] In

any event, those are the reasons that the Court had for the upward variance.” (Id.

at 21).

          The court further elaborated that it found that Enoch was “not a man with

respect for the law,” who was “very probably a danger to [the] community,” and

that “a sentence in the range of 27 to 33 months does not adequately treat [his] case

with the severity it deserves.” (Id.). At the close of the hearing, Enoch objected to




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the upward variance and he renewed his objection to the denial of his motion for a

downward departure. This is Enoch’s appeal.

                                        II.

      Enoch first argues that remand for resentencing is required because the

district court found it did not have the authority to apply a downward departure

under U.S.S.G. § 5K2.12. The court, according to Enoch, incorrectly concluded

that there is no excuse or justification defense to the charge of possession of a

firearm by a convicted felon, and so failed to consider Enoch’s evidence of an

incomplete justification defense under § 5K2.12.

      Pursuant to U.S.S.G. § 5K2.12, a sentencing court “may depart downward”

for a defendant who “committed the offense because of serious coercion, blackmail

or duress, under circumstances not amounting to a complete defense.” U.S.S.G.

§ 5K2.12; see also United States v. Russell, 917 F.2d 512, 515-16 (11th Cir. 1990)

(discussing departures under § 5K2.12). The section further provides that the

extent of the decrease should depend on the reasonableness of the defendant’s

conduct. U.S.S.G. § 5K2.12.

      We lack jurisdiction “to consider a defendant’s appeal of a discretionary

decision of the district court to not apply a downward departure.” United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). However, we may conduct a de

novo review of a claim that the district court mistakenly believed that it lacked


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authority to grant such a departure. United States v. Mignott, 184 F.3d 1288, 1289

(11th Cir. 1999); see also United States v. Hadaway, 998 F.2d 917, 921 (11th

Cir.1993) (vacating and remanding sentence after district court declined to depart

downward because it wrongly believed that it lacked authority to do so).

      We must first determine whether the district court incorrectly believed it

lacked authority to grant a departure.         When nothing in the record indicates

otherwise, we assume that the district court understood that it had the authority to

depart downward. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).

But where the record is ambiguous as to the district court’s understanding, the

ambiguity is resolved in the defendant’s favor. United States v. Webb, 139 F.3d

1390, 1395 (11th Cir. 1998) (vacating sentence after concluding that the district

court “appear[ed] to have agreed with both the proposition that it lacked the

authority to depart . . . as well as the proposition that it had the discretion to depart

but chose not to do so in this case”).

      Here, the record is ambiguous as to whether the district court understood that

it had the authority to depart downward. Some of the court’s comments seem to

show that the court believed, as a matter of law, that there could be no excuse or

justification defense to a firearm-possession offense under 18 U.S.C. § 922(g)(1),

as a matter of law. For example, in response to defense counsel’s arguments that

the court could depart under § 5K.12 based on coercion or duress, the court stated,


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“I don’t know of any law that says if a man or a woman is a convicted felon that

there are circumstances that excuse the offense.” (D.E. 59 at 11). Further, the

court asked whether coercion is a defense to a violation of the statute, stating “I

don’t know it to be.” (Id. at 12). While other comments may be construed to

suggest that the court may have made a discretionary determination based on the

merits, we resolve the ambiguity in Enoch’s favor. See Webb, 139 F.3d at 1395.

      Turning to the merits, Enoch contends that this circuit recognizes a

justification defense to a § 922(g)(1) firearm-possession offense, and that the

district court therefore was permitted to depart downward under § 5K2.12, even if

the facts show only an imperfect defense. We agree.

      This Court has held that “justification” is an affirmative defense to a

§ 922(g)(1) charge. United States v. Deleveaux, 205 F.3d 1292, 1297-98 (11th Cir.

2000); see also United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000). To

establish this defense in the § 922(g)(1) context, a defendant must prove four

elements:

            (1) that the defendant was under unlawful and present,
            imminent, and impending threat of death or serious
            bodily injury; (2) that the defendant did not negligently
            or recklessly place himself in a situation where he would
            be forced to engage in criminal conduct; (3) that the
            defendant had no reasonable legal alternative to violating
            the law; and (4) that there was a direct causal relationship
            between the criminal action and the avoidance of the
            threatened harm.


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Deleveaux, 205 F.3d at 1297. Because § 5K2.12 provides that the court may

depart downward in “circumstances not amounting to a complete defense,” the

district court would have been permitted to depart even if Enoch was unable to

establish these elements fully. The extent of the decrease, if warranted, “should

depend on the reasonableness of the defendant’s actions, on the proportionality of

the defendant’s actions to the seriousness of coercion, blackmail, or duress

involved, and on the extent to which the conduct would have been less harmful

under the circumstances as the defendant believed them to be.”                           U.S.S.G.

§ 5K2.12.

       The government suggests that, even if the district court incorrectly believed

that it lacked the authority to depart, we may nonetheless affirm the denial of the

downward departure because Enoch did not prove his entitlement to the departure

by presenting any evidence in support of his request at the sentencing hearing.

However, defense counsel explained the factual basis for seeking a departure under

§ 5K2.12 at the sentencing hearing, but it appears that the district court was

unwilling to entertain an excuse or justification defense to the § 922(g)(1) as a

matter of law.1 Enoch cannot be faulted for failing to produce evidence that the

court already had rejected as necessarily legally insufficient.


       1
            Although we acknowledge that defense counsel, when pressed by the district court,
failed to identify a case showing that there is a defense to a § 922(g)(1) charge, we also note that
counsel cited Deleveaux in his objections to the PSR.
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      Consequently, we vacate and remand for resentencing and for consideration

on the merits of whether and to what extent a § 5K2.12 departure is warranted

based on the evidence presented. We express no view as to whether a downward

departure should, in fact, be granted on remand.

                                        III.

      Enoch also raises various other challenges to the procedural and substantive

reasonableness of his 60-month prison sentence.          He contends that the court

procedurally erred by (1) effectively imposing an upward departure based on an

under-represented criminal history, under U.S.S.G. § 4A1.3, without complying

with the procedural requirements of that section or of Rule 32(h), FED. R. CRIM. P.,

and (2) failing to give a significant justification for its major variance. And he

argues that his sentence was substantively unreasonable because: (a) it was based

primarily on his prior criminal history, which had already been factored into his

guideline range;    (b) the court improperly increased his sentence based on

unfounded assumptions about Enoch’s lack of employment, marital status, and

failure to pay child support;    and (c) the court failed to consider mitigating

evidence and arguments.

      To the extent that the court may have based its upward variance on any

assumptions or speculation about Enoch’s failure to pay child support, without

making any supporting factual findings, it would have been inappropriate to do so.


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A district court’s sentencing determinations must be “based on the facts

presented.” Gall, 552 U.S. at 50, 128 S. Ct. at 597. While a district court may

make factual findings by drawing reasonable inferences from the facts in the

record, United States v. Creel, 783 F.3d 1359, 1359 (11th Cir. 2015), factual

findings “cannot be based on speculation,” id. (quoting United States v. Newman,

614 F.3d 1232, 1238 (11th Cir. 2010)), and must be supported by “substantial

evidence,” see United States v. Ellisor, 522 F.3d 1255, 1273 n.25 (11th Cir. 2008).

Further, when there is a disputed matter at sentencing, the district court generally

must “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).

      The district court’s factual findings supporting its sentencing determinations,

and the court’s resolution of disputed factual matters, are necessary to ensure

meaningful appellate review. See United States v. Reid, 139 F.3d 1367, 1368 (11th

Cir. 1998) (“We cannot engage in meaningful appellate review of a sentence unless

the district court sets out the facts underpinning the guidelines it applied in

fashioning the defendant’s sentence or the record plainly establishes such facts.”);

Shukwit v. United States, 973 F.2d 903, 905 (11th Cir. 1992) (remanding based on

the district court’s failure to resolve a factual dispute because this Court was




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“unable to ascertain whether [the defendant] was sentenced on the basis of

inaccurate information”).

      After Enoch personally objected that he worked various odd jobs and took

care of his children, the district court did not thereafter resolve the question either

by making supporting factual findings or by stating that the matter would not affect

sentencing. Nor did the court explain how Enoch’s marital status, employment

history, or purported lack of child support supported an upward variance based on

the § 3553(a) factors. So it is not clear whether the district court, in fact, relied on

impermissible speculation.

      Nevertheless, we need not, and do not, decide whether the district court

procedurally or substantively erred on this or other grounds because we conclude

that a remand is warranted based on the departure issue, as explained above.

Enoch’s remaining challenges are to the length of the sentence and to the district

court’s justification of that sentence. Because the chosen sentence, as well as its

underlying justification, may change upon remand, we do not at this time opine on

its reasonableness. See United States v. Gupta, 572 F.3d 878, 888 (11th Cir. 2009)

(“We do not know what sentence the district court will impose on remand. Thus,

we would be rendering an advisory opinion if we were to pick a sentence and

declare it to be reasonable.” (quoting United States v. Collins, 915 F.2d 618, 622

(11th Cir. 1990)).


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                                        IV.

      In sum, we VACATE Enoch’s sentence and REMAND for resentencing

consistent with this opinion.

      VACATED AND REMANDED.




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