               Case: 18-12550    Date Filed: 06/28/2019    Page: 1 of 14


                                                                [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 18-12550
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 0:18-cr-60013-JIC-1


UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

versus

JOEY LITTLE,

                                                     Defendant-Appellant.

                             ______________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                            _______________________

                                   (June 28, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Joey Little appeals his 57-month sentence of imprisonment, imposed at the

low end of the advisory guideline range, after pleading guilty to one count of
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possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Mr. Little asks us to reverse due to three allegedly improper guideline enhancements

applied by the district court. He argues that the enhancement under U.S.S.G. §

2K2.1(a)(4)(B) for possession of a high-capacity magazine violates his Second

Amendment rights and constitutes an unlawful usurpation of congressional authority

by the United States Sentencing Commission. He also contends that the government

failed to meet its evidentiary burden to prove that he possessed a firearm in

connection with a felony offense under § 2K2.1(b)(6)(B) or that he possessed three

genuine firearms under § 2K2.1(b)(1)(A).        Finally, Mr. Little argues that an

enhancement related to possession of marijuana, given changes in laws throughout

the country, creates a sentencing disparity in violation of 18 U.S.C. § 3553(a).

      After careful consideration of the parties’ briefs and the record, we affirm.

                                          I

      On January 13, 2017, a special agent with the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”) was advised that Mr. Little had posted videos and

photographs on social media accounts showing himself in the possession of firearms.

Mr. Little, an aspiring musician, has all the accounts listed under his performance

name, “Teddy Blow,” rather than his real name.

      Several photos depicted Mr. Little posing with a black and silver pistol in

hand. [Id.] Multiple videos, broadcast live on the streaming service Periscope,


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showed Mr. Little brandishing the gun and commenting on it. In one video, Mr.

Little was seen chambering a round and firing it into the air. An ATF firearms expert

reviewed Mr. Little’s social media profiles and identified the silver and black pistol

as a Taurus G2 Millennium. The expert also recognized two other pistols, a Ruger

P Series pistol and an AP9 pistol. Mr. Little’s social media accounts included a

photograph of him posing with four large plastic bags that appeared to contain

marijuana.

      On January 11, 2018, officers arrested Mr. Little as he entered his car. They

asked Mr. Little if he had a firearm, and he disclosed that there was one in his lunch

bag on the passenger seat. Officers recovered a black and silver Taurus G2

Millennium pistol from the lunch bag, where they also discovered approximately

39.2 grams of marijuana and 72 small plastic bags. Mr. Little waived his Miranda

rights and provided a recorded interview admitting that he possessed a firearm. He

explained that he kept the gun for protection because he had previously been shot at

for what he believed was his past involvement in selling drugs and other crimes. On

March 28, 2018, Mr. Little pled guilty to a one-count indictment for being a felon in

possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1).

      Mr. Little’s Pre-Sentence Investigation Report (“PSI”) recommended

enhancing his base offense level under the advisory guidelines from 12 to 20 under

§ 2K2.1(a)(4)(B) for the large-capacity magazine attached to the Taurus pistol. The


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PSI also recommended an additional two-level enhancement under § 2K2.1(b)(1)(A)

for the possession of at least three but fewer than eight firearms, and a four-level

enhancement under § 2K2.1(b)(6)(B) for the possession of a firearm in connection

with another felony offense. Because Mr. Little received a three-level reduction for

acceptance of responsibility, the PSI calculated total offense level of 23. With 6

criminal history points and a criminal history category of III, Mr. Little’s advisory

imprisonment range was 57 to 71 months. Mr. Little filed objections to the PSI, and

the government responded in a sentencing memorandum.

      The district court held the sentencing hearing on June 7, 2018, where he

argued the same objections he had raised as to the PSI. The government called ATF

Agent Samuel Lawrence to testify about the agency’s investigation into Mr. Little,

the photos and videos obtained from his social media, and the details of his arrest.

Agent Lawrence also testified about the report from the firearms expert about the

guns seen in Mr. Little’s social media postings. The report identified the black and

silver pistol as a Taurus G2 Millennium, which was the gun ultimately found in Mr.

Little’s possession. The report noted that there are no known replicas, BB-gun

variants, or airsoft models of the Taurus G2. Under questioning, Agent Lawrence

stated that the report did not mention the AP9 or the Ruger, but that the expert had

told him that all the weapons seen on social media were genuine. After Agent

Lawrence’s testimony, and after defense counsel presented arguments, the district


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court overruled Mr. Little’s objections and sentenced Mr. Little to a term of 57

months. Mr. Little filed this timely appeal.

                                         II

       We review the district court’s interpretation and application of the sentencing

guidelines de novo. See United States v. Moran, 778 F.3d 942, 959 (11th Cir. 2015).

We also review the constitutionality of the guidelines de novo. See United States v.

Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015).

                                         A

      Mr. Little challenges the application of § 2K2.1(a)(4)(B)—which increased

his base offense level from 12 to 20 for the large-capacity magazine attached to the

Taurus G2 pistol—on the grounds that it punishes conduct that he maintains is

protected by the Second Amendment. He also argues that § 2K2.1(a)(4)(B) is an

improper usurpation of congressional authority by the Commission because it

contradicts Congress’ intent to not criminalize the possession of large-capacity

magazines.

      The Second Amendment protects the right to keep firearms for the purpose of

self-defense. District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008). The

Second Amendment does not, however, protect the possession of firearms by

convicted felons, id. at 592, and Congress has expressly criminalized such

possession. See 18 U.S.C. § 922(g)(1). See also United States v. Rozier, 598 F.3d


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768, 771 (11th Cir. 2010) (“[S]tatutory restrictions of firearm possession, such as

§ 922(g)(1), are a constitutional avenue to restrict the Second Amendment right of

certain classes of people.”).

       Some circuit and district courts have addressed whether the Second

Amendment protects the possession of large-capacity magazines. 1 But we need not

reach the issue here. Mr. Little is a convicted felon whose rights have not been

restored. Thus, any Second Amendment protection that might be afforded to the

possession of large-capacity magazines would not be available to Mr. Little. See

Rozier, 598 F.3d at 1285–86.

                                                B

       Mr. Little argues that § 2K2.1(a)(4)(B) exceeds the Commission’s authority

because it punishes conduct that Congress expressly intended not to prohibit. He

maintains that such intent was manifested in Congress’ decision to not reauthorize

the Public Safety and Recreational Firearms Use Protection Act (the “Act”) after its

lapse in 2004, or to pass a new law that includes similar prohibitions. In the absence


1
  See Kolbe v. Hogan, 849 F.3d 114, 136 (4th Cir. 2017) (en banc) (holding that the Second
Amendment does not cover large-capacity magazines because they fall within Heller’s exception
for “weapons that are most useful in military service”); N.Y. State Rifle & Pistol Ass’n, Inc. v.
Cuomo, 804 F.3d 242, 263–64 (2d Cir. 2015) (upholding, under intermediate scrutiny, state bans
on the possession of large-capacity magazines, but striking down a seven-round load limit).
Contra Duncan v. Becerra, 742 F. App’x 218, 221 (9th Cir. 2018) (unpublished) (holding that a
district court did not abuse its discretion in determining that large-capacity gun magazines likely
fall within the scope of the Second Amendment); Duncan v. Becerra, No. 3:17-cv-1017-BEN
(JLB), 2019 WL 1434588, *36 (S.D. Cal. Mar. 29, 2019) (holding unconstitutional California’s
ban on large-capacity magazines).
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of any current federal law that proscribes the possession of large-capacity

magazines, he argues, the Commission may not promulgate guidelines that punish

such conduct.

       Passed in 1994, the Act made it unlawful to possess certain types of firearms

(e.g., “semiautomatic assault weapons”). See Pub. L. No. 103-322, Title XI, Subtitle

A, § 110102, 108 Stat. 1796 (1994). The Act amended 18 U.S.C. § 922 by adding

subsection (w)(1), which made it unlawful for a person to “possess a large capacity

ammunition feeding device.” H.R. 3355-201. And in § 922(a)(30), the Act defined

a large capacity ammunition feeding device as a “magazine . . . that has a capacity

of, or that can be readily restored or converted to accept, more than 10 rounds of

ammunition.” In 1995, the Commission adopted § 2K2.1(a)(4)(B), which provided

for a base offense level of 20 if an “offense involved a firearm described in 18 U.S.C.

§ 922(a)(30).” U.S.S.G. § 2K2.1(a)(4)(B) (1995). See also U.S.S.G. App. C, amend.

522.

       In 2004, the Act expired pursuant to its ten-year sunset provision. Congress

chose not to reauthorize the Act, the ban expired, and 18 U.S.C. § 922(a)(30) was

repealed. Two years later, the Commission amended § 2K2.1(a)(4)(B) by deleting

the cross-reference to 18 U.S.C. § 922(a)(30) and adding language applying the

enhancement if the “offense involved a semiautomatic firearm that is capable of

accepting a large capacity magazine.” U.S.S.G. § 2K2.1(a)(4)(B). It is this amended


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guideline that Mr. Little challenges as an improper exercise of the Commission’s

power.

       The guideline provides for a base offense level of 20 if the offense involved

a “semiautomatic firearm that is capable of accepting a large capacity magazine”

and the defendant “was a prohibited person at the time the defendant committed the

instant offense.” U.S.S.G. § 2K2.1(a)(4)(B). A prohibited person is defined as any

person described by 18 U.S.C. § 922(g)(1). See U.S.S.G. § 2K2.1(a)(4)(B) cmt. n.3.

A “semiautomatic firearm that is capable of accepting a large capacity magazine” is

defined as a firearm that, at the time of the offense, “had attached to it a magazine

or similar device that could accept 15 or more rounds of ammunition; or . . . a

magazine or similar device that could accept more than 15 rounds of ammunition

was in close proximity to the firearm.” U.S.S.G. § 2K2.1(a)(4)(B) cmt. n.2. 2

       The Sentencing Guidelines are created by the Commission, which

“promulgates the guidelines by virtues of an express congressional delegation of

authority for rulemaking . . . thus the guidelines are the equivalent of legislative rules

adopted by federal agencies.” Stinson v. United States, 508 U.S. 36, 44–45 (1993).

Congress granted the Commission “substantial statutory discretion in formulating

guidelines[, including the] authority to determine the relative severity of federal



2
 The sentencing guidelines’ commentary is binding unless a guideline and the commentary are in
conflict. See Stinson, 508 U.S. at 44.
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crimes and to assess the relative weight of the offender characteristics . . . .” See

Mistretta v. United States, 488 U.S. 361, 377 (1989). Nevertheless, where a

guideline conflicts with a statute, the statute controls.               See United States v.

Eggersdorf, 126 F.3d 1318, 1320 (11th Cir. 1997).

       Mr. Little is incorrect that U.S.S.G. § 2K2.1(a)(4)(B) punishes the mere

possession of a large-capacity magazine.              Rather, the guideline punishes the

possession of a large-capacity magazine that, as in his case, is “attached to” or “in

close proximity to” a firearm that he was prohibited from possessing under 18 U.S.C.

§ 922(g)(1). See U.S.S.G. § 2K2.1, cmt. n.2. Thus, the guideline does not conflict

with the plain language of any federal statute, or with Congress’ apparent intent to

allow law-abiding citizens to possess large-capacity magazines. The Commission

“enjoys significant discretion in formulating guidelines” and has the authority to

enhance sentences for conduct that it determines makes an already unlawful act more

severe. See Mistretta, 488 U.S. at 377. The guideline enhancing Mr. Little’s

sentence for the large-capacity magazine falls within that authority. 3




3
  Our conclusion is consistent with the decisions of other circuits. See, e.g., United States v.
Marceau, 554 F.3d 24, 29–30 (1st Cir. 2009) (finding no conflict between the lapse of the Act and
the Commission’s decision to impose a higher offense level for the possession of an assault weapon
by a “prohibited person”); United States v. Myers, 553 F.3d 328, 331 (4th Cir. 2009) (same);
United States v. Barron, 557 F.3d 866, 870 (8th Cir. 2009) (same); United States v. Whitehead,
425 F.3d 870, 871-72 (10th Cir. 2005) (upholding the prior version of § 2K2.1(a)(4)(B), which
still cross-referenced § 921(a)(30), despite the repeal of that section).
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                                         C

      Mr. Little challenges the sufficiency of the evidence to support the four-level

enhancement for possession of a firearm in connection with another felony offense,

see U.S.S.G. § 2k2.1(b)(6)(B), and the two-level enhancement for possession of

three to seven firearms, see § 2K2.1(b)(1)(A). The government bears the burden of

proving by a preponderance of the evidence the facts necessary to support a

sentencing enhancement. See United States v. Askew, 193 F.3d 1181, 1183 (11th

Cir. 1999). A district court “may consider any information (including hearsay),

regardless of its admissibility . . . , provided that the information is sufficiently

reliable.” United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999).

      We review a district court’s factual findings for clear error. See United States

v. Rhind, 289 F.3d 690, 693 (11th Cir. 2002). A factual finding is clearly erroneous

when, after reviewing all of the evidence, we are left with a definite and firm

conviction that a mistake has been made. See United States v. Rodriguez-Lopez, 363

F.3d 1134, 1137 (11th Cir. 2004). “Credibility determinations made by the district

court are entitled to deference by a reviewing court.” United States v. Holland, 874

F.2d 1470, 1473 (11th Cir. 1989).

                                          1

      Mr. Little claims that the four-level enhancement for possession of a firearm

in connection with another felony offense was erroneous for two reasons. First, the


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government failed to present sufficient evidence to prove that the Taurus pistol was

connected to the small quantity of marijuana also found in his possession. Second,

because marijuana laws differ across the states, the enhancement violates the

requirement that sentencing courts consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553(a)(6).

      The guidelines provide that a four-level enhancement applies if “the firearms

or ammunition facilitated, or had the potential of facilitating, another felony

offense.” U.S.S.G. § 2K2.1, cmt. n.14(A). With respect to drug trafficking offenses,

the enhancement applies if “a firearm is found in close proximity to drugs.” Id. cmt.

n.14(B). See also United States v. Gordillo, 920 F.3d 1292, (11th Cir. 2019); United

States v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir. 2013) (“A firearm found in close

proximity to drugs or drug-related items simply ‘has’—without any requirement for

additional evidence—the potential to facilitate the drug offense.”).

      Based on the undisputed evidence presented at the sentencing hearing, the

district court found that Mr. Little possessed the marijuana with intent to distribute,

and enhanced his sentence accordingly. During Mr. Little’s arrest, officers found

the Taurus pistol in a lunchbox with approximately 39.2 grams of marijuana

wrapped in plastic and a plastic bag holding 72 smaller plastic bags. Agent

Lawrence testified at the sentencing hearing that the small plastic bags were


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consistent with distribution of narcotics. The government also presented evidence

of the photo on Mr. Little’s social media account showing him with four large bags

of marijuana.     We see no reason to question the district court’s factual

determinations, which are sufficient to support the application of the sentencing

enhancement. See Carillo-Ayala, 713 F.3d at 92.

      Mr. Little also argues that the enhancement violates § 3553(a)(6)’s

requirement that sentencing in federal courts must “avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” Mr. Little emphasizes the differences among the states in laws

governing possession and sale of marijuana and maintains that he received a higher

sentence than similarly situated defendants in districts where the possession of

approximately 39.2 grams of marijuana is not a felony.

      Although some states have decriminalized marijuana, and some do not ascribe

felony status to possession of smaller quantities of marijuana, possession of any

amount of marijuana with the intent to distribute is a felony under federal law. See

21 U.S.C. § 841(a)(1), (b); United States v. Williams, 876 F.2d 1521, 1525 (11th Cir.

1989). Thus, disparities in state marijuana possession laws are not relevant in this

context.   Moreover, although the § 3553(a)(6) factors are designed to avoid

sentencing disparities among defendants, we have held that sentences are not

“subject to a national grade curve.” United States v. Hill, 643 F.3d 807, 885 (11th


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Cir. 2011). Finally, Mr. Little has not identified any similarly situated defendants

who have received a significantly different sentence than his. Cf. United States v.

Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009) (co-suspect who elected pretrial

diversion and was never prosecuted, convicted, or sentenced was not similarly

situated under § 3553(a)(6)). Accordingly, he has not shown an unwarranted

sentence.

                                           2

      Mr. Little argues that the two-level enhancement for possession of three to

seven firearms was erroneous because the government failed to meet its burden of

proving that two of the firearms depicted in his social media posts were real (rather

than replicas, props, or airsoft or BB guns). Mr. Little suggests that, because his role

in the rap music industry requires him to portray a certain persona, the social media

postings involved the use of prop firearms.

      During the sentencing hearing, Agent Lawrence testified that he reviewed the

photographs and videos posted on Mr. Little’s social media accounts showing Little

in the possession of multiple firearms. He also testified about the firearm expert’s

report, which included an analysis of the Taurus G2 pistol found in Mr. Little’s

possession. The report mentioned the AP9 pistol and Ruger P Series pistol, but did

not discuss whether replica versions exist of either. Agent Lawrence testified that

the expert had reported to him that all the firearms in Mr. Little’s social media posts


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were genuine. Mr. Little did not present any evidence to substantiate his claim that

the weapons were props related to his rap music career.

      The district court was presented with sufficient evidence to find, as a factual

matter, that the firearms were genuine. We find no reversible error.

                                        III

      For the foregoing reasons, we affirm.

      AFFIRMED.




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