USCA11 Case: 23-10227    Document: 35-1     Date Filed: 04/10/2024   Page: 1 of 6




                                                  [DO NOT PUBLISH]
                                   In the
                United States Court of Appeals
                        For the Eleventh Circuit
                          ____________________

                                No. 23-10227
                          Non-Argument Calendar
                          ____________________

       UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,
       versus
       KEVIN DEANE JONES,
       a.k.a. Kevin Jones,


                                                  Defendant-Appellant.


                          ____________________

                 Appeal from the United States District Court
                      for the Middle District of Florida
                 D.C. Docket No. 6:22-cr-00021-WWB-LHP-1
                          ____________________
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       2                      Opinion of the Court                  23-10227


       Before JORDAN, BRASHER, and ABUDU, Circuit Judges
       PER CURIAM:
              Kevin Jones, a convicted felon living in Florida, manufac-
       tured ricin, a biological agent. He planned to put the ricin in a toy
       water gun and use it against his estranged wife, M.J., who lived in
       Texas. M.J. first alerted the FBI about Mr. Jones’ plan, which was
       confirmed by Mr. Jones’ fiancée. The FBI arrested Mr. Jones after
       he put a toy water gun containing ricin in his truck. While execut-
       ing a search warrant at Mr. Jones’ storage locker, the FBI seized a
       rifle, a Ruger SR .22 semi-automatic pistol, a firearm silencer, and
       about 3,000 rounds of ammunition.
               Following the filing of a superseding information, Mr. Jones
       pled guilty—pursuant to a plea agreement—to two federal charges:
       (1) possession of a biological agent and delivery system, in violation
       of 

(b); and (2) possession of a firearm by a convicted
       felon, in violation of 

(g)(1). The presentence inves-
       tigation report calculated the advisory guideline range as 37–46
       months of imprisonment.
              Considering the issue a “very close call,” the district court at
       sentencing overruled the government’s objection to the presen-
       tence investigation report for not using the attempted murder
       guideline, U.S.S.G. § 2A2.1. See D.E. 96 at 28–29. But the district
       court then varied upward and sentenced Mr. Jones to 120 months
       of imprisonment. It did so based on (a) the serious, sophisticated,
       and premediated nature of the § 175(b) offense; (b) Mr. Jones’
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       23-10227                  Opinion of the Court                              3

       intent to harm M.J. with the ricin he had manufactured; (c) the fear
       Mr. Jones instilled in M.J.; (d) the danger Mr. Jones created for the
       public with the ricin he manufactured; (e) Mr. Jones’ 12 prior con-
       victions, including some for crimes of violence; (f ) Mr. Jones’ pos-
       session of firearms as a convicted felon; and (g) the need to protect
       the public from future harm. See D.E. 96 at 59–63.
             Mr. Jones now appeals, raising a number of issues. For the
       reasons which follow, we affirm.
              First, Mr. Jones argues that the district court erred, and vio-
       lated his due process rights, by allowing M.J. to read her victim im-
       pact statement at the sentencing hearing. In Mr. Jones’ view, M.J.
       was not a “victim” of his § 175(b) offense for purposes of the Crime
       Victims’ Rights Act, 

(b), because she was not “di-
       rectly and proximately harmed as a result of the commission of
       [his] Federal offense.” 

(e)(2)(A). And her victim
       impact statement, he continues, constituted prejudicial hearsay
       that rendered his sentencing hearing fundamentally unfair. 1
             Contrary to Mr. Jones’ contention, the district court could
       have properly considered M.J. to be a victim of his § 175(b) offense
       even though she was not physically harmed. She was panicked
       when she learned of Mr. Jones’ plan to attack her with ricin, and
       she continued to suffer anxiety even after his arrest. See D.E. 96 at


       1 Mr. Jones’ plea agreement contained an appeal waiver, see D.E. 55 at 12, but

       the government does not seek to enforce the waiver. We therefore do not
       address it.
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       4                       Opinion of the Court                  23-10227

       41–43. Under the circumstances, the district court did not err in
       allowing M.J. to read her victim impact statement. See United States
       v. Maldonado-Passage, 

 (10th Cir. 2021) (“[W]hen a
       defendant’s commission of a crime results in emotional or pecuni-
       ary harm, the harmed person qualifies as a crime victim under the
       CVRA . . . . [B]ecause Maldonado-Passage’s plan to have Baskin
       murdered was both the but-for and proximate cause of . . . [her]
       emotional and pecuniary injuries, the district court acted within its
       discretion in allowing Baskin to stay in the courtroom as a crime
       victim under the CVRA.”).
              Mr. Jones did not lodge a constitutional objection to M.J.
       reading her victim-impact statement below, so we review his due
       process claim for plain error. See United States v. Harris, 

 (11th Cir. 2014); Fed. R. Crim. P. 52(b). There is no plain
       error here because (a) the victim-impact statement was attached to
       the presentence investigation report, see PSR at ¶ 36 & Attachment
       1, and Mr. Jones did not object to it; (b) Mr. Jones could have called
       M.J. as a witness at the sentencing hearing and cross-examined her
       about what she said in her victim-impact statement but chose not
       to do so; and (c) the district court did not rely on the portions of
       the statement that Mr. Jones finds particularly objectionable (e.g.,
       the statements about the divorce/custody dispute between M.J.
       and Mr. Jones).
               Second, Mr. Jones asserts that the district court erred by plac-
       ing significant weight on the victim-impact statement and his ar-
       rests for domestic violence. He also contends that the district court
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       23-10227                 Opinion of the Court                               5

       improperly relied on the unproven facts in the arrest records to
       vary upward. He therefore argues that his sentence is substantively
       unreasonable, because the district court gave significant weight to
       improper factors. See United States v. Irey, 

, 1189–92
       (11th Cir. 2010) (en banc).2
               Reviewing for abuse of discretion, see Irey, 612 F.3d at 1189–
       92, we disagree on both points. To the extent that Mr. Jones reiter-
       ates his objection to the admission of the victim-impact statement,
       we again reject the argument. Insofar as Mr. Jones challenges the
       district court’s consideration of his arrests, our review of the rec-
       ord indicates that the district court relied on his convictions—for
       which he received zero criminal history points—and not his arrests
       for domestic violence. See D.E. 96 at 62 (“You have 12 criminal con-
       victions. Some of those were crimes of violence.”). Finally, some
       of Mr. Jones’ prior convictions did involve violent conduct. He had
       three breaking and entering convictions in 1991 based on incidents
       taking place on different days. See PSR at ¶¶ 66, 67, 69, 70. And in
       a state court proceeding related to his 2008 criminal mischief con-
       viction, a state court granted his then-girlfriend an order of protec-
       tion. In that proceeding, Mr. Jones “stipulated that the offense was
       an act of domestic violence.” PSR at ¶ 74. We therefore have no
       need to address whether a district court can properly rely on a de-
       fendant’s arrests (and/or the narratives for those arrests) in decid-
       ing to vary upwards from the advisory guideline range.


       2 This is the only substantive unreasonableness argument Mr. Jones makes.
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       6                       Opinion of the Court                  23-10227

              Third, Mr. Jones contends that his § 922(g)(1) felon-in-pos-
       session conviction must be vacated given the Supreme Court’s de-
       cision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

,
       17–21 (2022), which he says abrogated Eleventh Circuit prece-
       dent—specifically United States v. Rozier, 

, 770–71 (11th
       Cir. 2010)—upholding the constitutionality of § 922(g)(1) under the
       Second Amendment. But we recently rejected a similar argument
       and held that Bruen did not abrogate Rozier. See United States v. Du-
       bois, ___ F.4th ___, 

, at *3–*6 (11th Cir. Mar. 5,
       2024). As a subsequent panel, we are bound by Dubois, which fore-
       closes Mr. Jones’ Bruen-based challenge to his § 922(g)(1) convic-
       tion.
              Finally, Mr. Jones concedes that his Commerce Clause chal-
       lenge to § 922(g)(1) is foreclosed by binding precedent. We there-
       fore do not address it further. See Appellant’s Br. at 51–52 (citing
       United States v. Pritchett, 

 (11th Cir. 2003)).
              AFFIRMED.