Facts
- Appellant Jeffrey K. McLendon filed a pro se brief after his appointed counsel was allowed to withdraw in an Anders appeal. [lines="13-14"]
- McLendon claimed errors in the admission of certain inculpatory evidence and alleged ineffective assistance of trial counsel. [lines="15-16"]
- The trial court admitted body camera video evidence, which McLendon's counsel stipulated to, and McLendon agreed to after a colloquy. [lines="18-20"]
- There was no contemporaneous objection from McLendon regarding the admission of his statements made during law enforcement interviews. [lines="21-23"]
- The court found no fundamental error that would allow McLendon to raise his ineffective assistance claim on direct appeal. [lines="27-29"]
Issues
- Whether the trial court erred in admitting body camera video evidence after defense counsel's stipulation. [lines="18-19"]
- Whether McLendon's claims of ineffective assistance of trial counsel could be raised in a direct appeal. [lines="28-29"]
Holdings
- The admission of body camera evidence was proper as it was stipulated by McLendon's counsel and agreed upon by McLendon. [lines="18-20"]
- McLendon could not raise claims of ineffective assistance of trial counsel in this direct appeal due to a lack of fundamental error. [lines="27-29"]
OPINION
Case Information
*2 Before J ILL P RYOR , G RANT , and B RASHER , Circuit Judges.
PER CURIAM:
Brandon Dale Hayes appeals his conviction and 100-month sentence for possession of a firearm by a convicted felon. He ar- gues that the felon-in-possession statute, 18 U.S.C. § 922(g)(1), is unconstitutional under the Second Amendment and New York State Rifle & Pistol Ass’n v. Bruen , 597 U.S. 1 (2022). And he argues that the district court plainly erred in calculating his sentencing range under the U.S. Sentencing Guidelines. We affirm his conviction but vacate his sentence and remand for resentencing.
Hayes’s argument that § 922(g)(1) violates the Second Amendment is foreclosed by our decisions in United States v. Rozier 598 F.3d 768 (11th Cir. 2010), and United States v. Dubois , 94 F.4th 1284 (11th Cir. 2024). In Rozier , we held that § 922(g)(1)’s prohibi- tion on the possession of firearms by felons did not violate the Sec- ond Amendment. 598 F.3d at 771. And in Dubois , we held that Rozier remained binding precedent in this Circuit after the Supreme Court’s decision in Bruen . 94 F.4th at 1292–93.
The Supreme Court’s more recent decision in United States v. Rahimi likewise did not abrogate Dubois or Rozier , because it did not “demolish” or “eviscerate” the “fundamental props” of those precedents. Id. at 1293; see United States v. Rahimi , 144 S. Ct. 1889 (2024). Rahimi did not discuss § 922(g)(1) at all, nor did it under- mine our prior decisions relying on District of Columbia v. Heller , 554 U.S. 570, 626 (2008). To the contrary, reiterated that *3 23-10926
prohibitions “like those on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” , 144 S. Ct. at 1902 (quoting Heller , 554 U.S. at 626). Because we remain bound by our prior precedents, we reject Hayes’s Second Amendment challenge and AFFIRM his conviction. See Dubois , 94 F.4th at 1293.
But we agree with both parties that the district court plainly erred in calculating Hayes’s Sentencing Guidelines range. Specifi- cally, the district court erred by adding three criminal history points for Hayes’s 2009 Massachusetts conviction for possession of mari- juana for distribution. Under the Guidelines in effect at the time of sentencing, the court should not have added any criminal history points for the 2009 conviction because Hayes’s sentence for that offense did not exceed one year and one month, and the sentence was imposed more than ten years before Hayes committed the in- stant offense. U.S.S.G. §§ 4A1.1(a); 4A1.2(e)(2)–(3) (2021). This mistake in tallying Hayes’s criminal history points led to a miscal- culation of his Guidelines sentencing range, so that the district court considered an incorrect, substantially higher Guidelines range when determining his sentence.
We will exercise our discretion to correct this unpreserved error because (1) the error was plain, (2) there is a reasonable prob- ability that the error led to the imposition of a higher sentence than Hayes otherwise would have received, and (3) the error “seriously affects the fairness, integrity or public reputation of judicial pro- ceedings.” Molina-Martinez v. United States , 578 U.S. 189, 194, 200– 01 (2016) (quotation omitted); see Rosales-Mireles v. United States *4 585 U.S. 129, 139–40 (2018). We therefore VACATE Hayes’s sen- tence and REMAND for resentencing.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.