USCA4 Appeal: 22-4426 Doc: 39 Filed: 01/04/2024 Pg: 1 of 15

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4426

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAHSIR JUSTIN CLAYBROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:21-cr-00119-NCT-2)

Argued: September 22, 2023 Decided: January 4, 2024

Before GREGORY and RICHARDSON, Circuit Judges, and Patricia Tolliver GILES, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Gregory wrote the opinion, in which Judge Richardson and Judge Giles joined.

ARGUED: Aaron Bader Wellman, IVEY, MCCLELLAN, SIEGMUND, BRUMBAUGH & MCDONOUGH, LLP, Greensboro, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, United States Attorney, Mary Ann Courtney, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 22-4426 Doc: 39 Filed: 01/04/2024 Pg: 2 of 15

GREGORY, Circuit Judge:

Jahsir Claybrooks pleaded guilty to a single count of possession of a stolen firearm,

in violation of

(j) and 924(a)(2). In its presentence report (PSR), the

probation office alleged that, at the time of the offense, Claybrooks was an unlawful user

of controlled substances and was under indictment for a felony. Under

(g)(3) and § 922(n), respectively, this made him a “prohibited person” barred from

possessing a firearm. The probation office accordingly calculated his sentence based on

Claybrooks’s “prohibited person” status. Claybrooks objected to the finding that he was

an unlawful user, but failed to object to the PSR’s statement that he was under indictment.

One week before his sentencing, the Supreme Court held in New York State Rifle & Pistol

Association v. Bruen that the government must justify firearms prohibitions by showing

that they are consistent with the nation’s historical tradition of firearms regulations. See

(2022). Without analyzing whether §§ 922(g)(3) and (n) are

consistent with that historical tradition, the district court adopted both findings and

sentenced Claybrooks to seventy months’ incarceration—seven months above the range

recommended by the United States Sentencing Guidelines.

Claybrooks now mounts both facial and as-applied challenges to § 922(g)(3),

claiming that he is not an unlawful drug user under the statute and that the statute itself is

unconstitutionally vague. He also argues that the district court erred in its determination that

he was under indictment at the time of his offense of conviction and abused its discretion by

imposing an above-guidelines sentence. Finally, Claybrooks contends that the district court

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erred by not conducting a Bruen analysis of the three firearms statutes at issue. Because we

conclude that the district court did not commit reversible error, we affirm.

I.

On June 24, 2020, around 2:24 a.m., a suspect broke into Sportsman Supply and

Grocery in Liberty, North Carolina. The suspect used a torch to remove metal bars over a

window before breaking the glass and entering. Once inside, he used an aluminum baseball

bat to break several display cases and steal their contents. In total, he absconded with

twenty-four handguns and three long guns, as well as several firearms accessories and

lottery tickets.

Four days later, in Findlay, Ohio, a local sheriff’s deputy conducted a traffic stop on

Claybrooks and his brother Javier as Claybrooks was driving. The deputy initiated a search

after smelling unburnt marijuana in the car. That search ultimately yielded eight grams of

marijuana, plastic baggies, a digital scale, a “Port-a-Torch,” cell phones, and two

handguns—a Glock 10mm and a Glock 9mm. The serial numbers on the two guns matched

two of the handguns taken from the Sportsman Supply and Grocery. The deputy arrested

Claybrooks and Javier for the Sportsman Supply robbery.

The next day, investigators obtained and executed a search warrant for Claybrooks’s

residence in Greensboro, North Carolina. J.A. 169. In a trashcan in the driveway, deputies

found several price tags for guns, two black ski masks, an “Axis” glove, an empty “Port-

a-Torch” box, an empty baton weapon box, and an empty extended magazine box. Id.

Deputies also searched a 2006 Acura in the driveway and located walkie talkies, cell

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phones, a gun lock, six grams of methamphetamine, a driver’s license belonging to

Claybrooks, and a receipt for the torch. Id. A search of Claybrooks’s bedroom revealed a

9mm 50-round drum magazine in the closet and a speed loader on the dresser. Id.

During a search of one of the cell phones located during the Ohio vehicle search,

police found yet more evidence that Claybrooks and his brother committed the Sportsman

Supply robbery. The search revealed photographs of handguns stolen from Sportsman

Supply and a photograph of the store’s broken window. J.A. 170.

Claybrooks was extradited from Ohio to North Carolina on July 28, 2020, and was

released on bond on related state charges in September 2020. On March 29, 2021, a federal

indictment was filed. While searching his home a month later, police again found a rifle

and 32.13 grams of marijuana. Claybrooks remained in custody on North Carolina state

matters through November 24, 2021, when he was served with a federal arrest warrant.

II.

Claybrooks pleaded guilty to one count of possession of stolen firearms, in violation

of

(j). J.A. 3, 9–23. In the PSR, the probation office assigned a base

offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(B). J.A. 128, 135–36. This base

offense level was based upon an allegation that Claybrooks possessed a semiautomatic

firearm capable of accepting a high-capacity magazine, as well as the probation officer’s

assessment that Claybrooks was a “prohibited person” at the time of the offense. Id. After

applying certain stipulations in the plea agreement, the PSR calculated a Total Offense

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Level of 29 and a Criminal History Category of II, resulting in a guidelines range of 97 to

120 months. J.A. 136, 147.

Claybrooks objected to the draft PSR both based on his designation as a “prohibited

person” and on the PSR’s assessment that conduct relevant to the offense involved a

semiautomatic firearm capable of accepting a large capacity magazine. J.A. 158, 160. At

sentencing, the district court sustained Claybrooks’s objection to the related conduct

enhancement but overruled his objection to his “prohibited person” designation, resulting

in a new base offense level of 14. J.A. 80–83. * Following other adjustments not relevant

to this appeal, the court found a Total Offense Level of 23 for a resulting guidelines range

of 51 to 63 months.

Prior to imposing a sentence, the court acknowledged Claybrooks’s difficult life

circumstances, his history of substance abuse, and his engagement in classes during his

incarceration. J.A. 97–98. But the court was nonetheless concerned with the number of

* In addition to being an unlawful drug user, the district court found that Claybrooks was a prohibited person because he was under indictment at the time of the offense. J.A. 80–81. Claybrooks disputes this. During the sentencing hearing, the district judge twice referenced an indictment related to a 2019 case. Charges of “felony possession of stolen goods” and “felony obtain property by false pretense” are listed in the “Pending Charges” section of the presentence report. The description associated with the charges lists the date of the offenses but omits the date of indictment.

There are questions as to whether the district court properly concluded that Claybrooks was under indictment at the time of his offense, but this Court need not reach them. To establish that a defendant is a prohibited person under § 2K2.1, the sentencing guidelines only require a finding that the defendant was either an unlawful user of a controlled substance or was under indictment at the time of the offense. See U.S.S.G. § 2K2.1 cmt. n.3. Because law and evidence support finding that Claybrooks was an unlawful user when he possessed the stolen firearm, any potential error concerning the district court’s § 922(n) finding was harmless. 5 USCA4 Appeal: 22-4426 Doc: 39 Filed: 01/04/2024 Pg: 6 of 15

guns, the danger of the AR-15, and the fact that Claybrooks was under pretrial supervision

when he committed the offense of conviction. After considering these factors and the

parties’ sentencing positions, the court determined that an upward variance to seventy

months’ imprisonment was warranted. J.A. 98. The court’s judgment was entered on July

14, 2021. J.A. 107–13. Claybrooks timely appealed.

III.

Since the release of the first draft PSR, Claybrooks has insisted that he is not a

prohibited person under U.S.S.G. § 2K2.1(a)(6). The guidelines commentary defines a

“prohibited person” as “any person described in

(g) or § 922(n).” U.S.S.G.

§ 2K2.1 cmt. n.3. The statutes cited in the guidelines forbid possession of a firearm by an

unlawful drug user and by any person under indictment for a felony, respectively.

When determining whether the district court properly applied the advisory

Sentencing Guidelines, this Court “review[s] the district court’s legal conclusions de novo

and its factual findings for clear error.” United States v. Layton,

(4th

Cir. 2009). “Under the clear error standard, we will only reverse if left with the definite

and firm conviction that a mistake has been committed.” United States v. Savage,

(4th Cir. 2018) (internal quotations omitted). This standard of review applies to

Claybrooks’s as-applied challenge to § 922(g)(3).

Admittedly, the legal contours of “unlawful user” of a controlled substance are not

well defined within the statute. As an aid, this Circuit has used the test articulated in United

States v. Purdy,

(9th Cir. 2001), to determine whether a person can be thus

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characterized under § 922(g)(3). To convict someone under the statute (or, as here,

enhance a sentence), Purdy requires that the government prove “that the defendant took

drugs with regularity, over an extended period of time, and contemporaneously with his

purchase or possession of a firearm.” Purdy,

. See also United States v.

Jackson,

(4th Cir. 2002) (upholding § 922(g)(3) conviction where

defendant admitted to using marijuana from childhood until two months before the

offense); United States v. Edwards,

(4th Cir 2002) (unpublished)

(stating that the drug use must be consistent, prolonged, and close in time to gun

possession); United States v. Sperling,

, 767 n.3 (4th Cir. 2010)

(unpublished) (noting the Ninth Circuit’s “persuasive” decision in Purdy).

Claybrooks does not pretend that he never used drugs. In fact, he admitted to drug

use during his interview with a probation officer. According to the PSR, Claybrooks

“admitted he was addicted to marijuana and had been smoking the substance on a daily

basis. He noted he last used marijuana in 2021.” J.A. 171. Claybrooks “reported that he

started smoking marijuana on a daily basis in high school . . . .[,] noted he became addicted

to marijuana and it helped him be ‘mellow’ and numbed his feelings . . . . , [and] noted that

marijuana is his drug of choice and he last smoked marijuana in 2021.” J.A. 181–82.

Despite these admissions, Claybrooks insists that his drug use was not

contemporaneous with his possession of the stolen firearms at issue. He says construing

his statements as evidence that his marijuana use was contemporaneous with the offense

would require assuming facts not in the record. According to Claybrooks, his admissions

about addiction and daily use were about past, not current, activity. For example, the PSR

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consistently refers to his drug use in past tense (i.e., “he was addicted”; “he had been

smoking on a daily basis”; “it helped him be ‘mellow’”). J.A. 171, 181–82. While the

start date of his drug use is well established, the end date is ambiguous, he argues.

One can inject some ambiguity into Claybrooks’s statements in the presentence

report, but any haziness is quickly clarified by the context of his statements. During his

interview, Claybrooks relayed that marijuana was his drug of choice and admitted that he

continued smoking it until 2021, which is well past the commission of his state and federal

crimes. He described himself as “addicted” to marijuana, offered no evidence that he ever

sought treatment for drug addiction or took efforts to cease using the controlled substance,

and did not indicate that he had overcome the addiction.

Taken together, these statements are enough to conclude that Claybrooks admitted

to being an unlawful drug user contemporaneous with his arrest. This is particularly so

under the preponderance of the evidence standard that applies to sentencing enhancements.

Our sister circuits have upheld convictions for § 922(g)(3) based on similar circumstances.

See United States v. Cowan,

(5th Cir. 2006) (upholding a § 922(g)(3)

conviction where defendant admitted to using marijuana from age thirteen to two months

prior to offense); United States v. Edmonds,

, 953–54 (11th Cir. 2003)

(concluding defendant was unlawful drug user where he admitted to history of drug use,

possessed marijuana when arrested, and tested positive for its use while on bond). As this

Court explained in Jackson, § 922(g)(3) “does not forbid possession of a firearm while

unlawfully using a controlled substance. Rather, the statute prohibits unlawful users of

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controlled substances (and those addicted to such substances) from possessing firearms.”

Jackson,

.

Citing an unpublished case of this circuit, Claybrooks asserts that any

uncorroborated admission of drug use—like the admissions contained in the presentence

report—must be supported by “substantial independent evidence” to support a conviction.

See United States v. Sperling,

, 767–68 (4th Cir. 2010). In Sperling, the

defendant admitted use of drugs within a couple months of his arrest, but a police dog failed

to locate drugs in his vehicle, and a federal agent could not find criminal or medical records

of drug use by Sperling. Finding no substantial evidence outside of the defendant’s

admission, this Court vacated his conviction.

Claybrooks’s case is distinguishable. First, Sperling concerns a conviction under

§ 922(g)(3); this case is about guidelines calculations under U.S.S.G. § 2K2.1. While the

government must prove its case beyond a reasonable doubt to sustain a conviction, the

government need only establish the applicability of relevant conduct guidelines provisions

by a preponderance of the evidence. United States v. McGee,

(4th Cir.

2013). In light of this much lower threshold of proof, and given the record before us, we

cannot conclude that the district court erred when it assessed that Claybrooks’s drug use

occurred contemporaneous with his arrest.

Second, Claybrooks’s statements to probation are better corroborated. Unlike in

Sperling, police searches on the day of Claybrooks’s Ohio arrest produced marijuana and

drug paraphernalia. In fact, the officer who initiated the traffic stop searched the vehicle

only after he smelled a “strong odor” of unburnt marijuana. Thus, Claybrooks was at least

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in possession of marijuana at the time of the offense, adding color to his statements in the

presentence report. Moreover, Claybrooks completed his PSR interview while in a

custodial setting where easy access to illicit drugs was limited or nonexistent. Considering

this detention, the PSR’s use of the past tense is best understood as discussion of his

engagement with drugs pre- and post-detention. When read through that lens, Claybrooks

is not claiming that his addiction to drugs was distant or infrequent, but rather was

continuous until 2021.

Claybrooks was arrested with drugs, admitted to drug use prior to his arrest, and

offered a timeline of use that immediately abuts that arrest. His own statements, and other

evidence available to the court below, are sufficient to support the sentencing court’s

conclusion that Claybrooks was an unlawful user of controlled substances as contemplated

by the statute. Consequently, we affirm the district court’s finding and reject the as-applied

challenge on appeal.

IV.

Claybrooks next asserts that § 922(g)(3) is unconstitutionally vague. Constitutional

challenges and questions of statutory construction are reviewed de novo. United States v.

Hager,

(4th Cir. 2013).

This Circuit previously noted that “the exact reach of the statute is not easy to

define” but declined to reach the question of whether the statute itself violates the void-for-

vagueness doctrine. Jackson,

. Because Claybrooks fails in his as-applied

challenge, we again decline to reach that question.

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The void-for-vagueness doctrine requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what conduct is

prohibited, and defines it in a manner that does not encourage arbitrary and discriminatory

enforcement. Hager,

; United States v. Williams,

(2008).

However, “a statute need not spell out every possible factual scenario with ‘celestial

precision’ to avoid being struck down on vagueness grounds.” Hager,

(quoting United States v. Whorley,

(4th Cir. 2008)).

Providing clarity and notice to defendants remains a vital judicial value. But when

a defendant’s conduct falls squarely within the confines of the disputed statute, he abandons

the right to challenge that statute for vagueness. See Holder v. Humanitarian L. Project,

, 18–19 (2010) (stating that a defendant who “engages in some conduct that is

clearly proscribed cannot complain of the vagueness of the law as applied to the conduct

of others”); United States v. Hasson,

(4th Cir. 2022) (declining to reach

a facial vagueness challenge where defendant did not dispute that his actions fell within

the statute); United States v. Hosford,

(4th Cir. 2016) (same). As

discussed supra, Claybrooks clearly falls within the statute’s definition of an unlawful drug

user. He therefore cannot mount a facial challenge to the statute.

V.

On June 23, 2022, the Supreme Court issued its decision in New York State Rifle &

Pistol Association v. Bruen, indicating that “when the Second Amendment’s plain text

covers an individual’s conduct, the Constitution presumptively protects that conduct.” 142

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, 2126 (2022). One week later, the district court sentenced Claybrooks without

reference to the Supreme Court’s new standard. Claybrooks now asserts that the district

court erred by not conducting a Bruen analysis of the three firearms statutes at issue, even

though Claybrooks failed to object below.

Prior to Bruen, courts evaluating the constitutionality of a gun regulation balanced

the individual’s Second Amendment right to possess a gun with the state’s interest in

promoting safety. See generally, District of Columbia v. Heller,

(2008).

Bruen replaced this balancing test. Instead, Bruen clarifies that when the plain text of the

Second Amendment covers an individual’s conduct, the Constitution presumptively

protects that conduct. The government must then rebut that presumption “by

demonstrating that it is consistent with the Nation’s historical tradition of firearm

regulation.” Bruen,

.

To reiterate, this case implicates three distinct criminal statutes restricting firearm

possession. Claybrooks pleaded guilty to violating § 922(j), which prohibits possession of

stolen firearms, and his sentence was enhanced based on findings that he was a prohibited

person under both §§ 922(g)(3) and 922(n). If Claybrooks had raised Bruen below, this

Court might have reached the question of whether the statutes survive Bruen’s renewed

analysis. But he did not. Because Claybrooks raises issues relating to Bruen for the first

time on appeal, the appropriate standard of review is plain error. See United States v. Allen,

, 530 (4th Cir. 2006). Pursuant to the plain error test, the appellant may secure

relief if he demonstrates that (1) the sentencing court erred, (2) such error was plain, and

(3) the error affected substantial rights.

The appellate court should then correct the

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error if it “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano,

(1993).

Claybrooks’s Bruen arguments cannot survive plain error review. This Circuit lacks

precedent establishing that any of the relevant statutes violate the Second Amendment right

to keep and bear arms. Nor have our sister circuits made much progress on the question.

The contours of Bruen continue to solidify in district and appellate courts across the nation,

and yet there is no consensus. See, e.g., United States v. Gore, No. 2:23-cr-04,

(S.D. Ohio Feb. 21, 2023) (finding that § 922(j) is constitutional because of

longstanding prohibitions on the receipt of stolen goods); United States v. Greer, No. 4:17-

CR-94(1),

(E.D. Tex. July 24, 2023) (citing Gore); United States v.

Daniels,

(5th Cir. 2023) (concluding that § 922(g)(3) contradicts the plain

text of the Second Amendment and is not aligned with the history and tradition of firearms

regulation); United States v. Rodriguez, No. 22-10896,

(5th Cir. June

16, 2023) (“There is no binding precedent holding § 922(n) unconstitutional, and it is not

clear Bruen dictates such a result.”); United States v. Posey, No. 2:22-cr-83,

, at *6 (N.D. Ind. Feb. 9, 2023) (assuming without deciding that an unlawful user

is part of “the people” and his possession of a firearm is protected by the Second

Amendment); United States v. Alston, No. 5:23-CR-21-1,

(E.D.N.C.

July 18, 2023) (magistrate recommending that § 922(g)(3) be found unconstitutional);

United States v. Costianes, No. 1:21-cr-458,

(D. Md. May 18, 2023)

(indicating agreement that the Second Amendment’s plain text does not cover prohibited

persons under § 922(g)(3) but declining to “definitely resolve” that question).

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There can be no plain error where neither this nor other circuits have resolved the

issues in dispute. United States v. Wynn,

(4th Cir. 2012). As such, we

cannot fault the district court for declining to submit the statutes to a Bruen analysis in the

absence of a motion or request by the defendant.

VI.

Finally, Claybrooks challenges the reasonableness of his sentence. The sentencing

court imposed an upward variance to seventy months from the recommended range of fifty-

one to sixty-three months’ imprisonment. A sentence is procedurally unreasonable if the

district court commits a “significant procedural error,” such as: (1) imposing “a sentence

based on clearly erroneous facts”; (2) failing to explain the sentence adequately; or (3)

failing to address the defendant’s nonfrivolous arguments. Gall v. United States,

(2007). A district court is required to provide “an individualized assessment” based

on the facts before the court, and to explain adequately the sentence imposed “to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

.

“A sentence may be substantively unreasonable if the court relies on an improper factor or

rejects policies articulated by Congress or the Sentencing Commission.” United States v.

Moreland,

(4th Cir. 2006).

“This Court reviews all sentences—whether inside, just outside, or significantly

outside the Guidelines range—under a deferential abuse-of-discretion standard.” United

States v. Torres-Reyes,

(4th Cir. 2020) (cleaned up).

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Claybrooks argues that the sentencing judge placed undue weight on the nature and

circumstances of the offense and insufficient weight on the history and characteristics of

the defendant. This argument is without support. Just before imposing the sentence, the

judge discussed the number and type of guns stolen, specifically noting the danger posed

by AR-15 assault rifles. J.A. 97. He then noted that Claybrooks was under indictment and

pretrial supervision at the time of the offense.

Stating that these factors merited an

upward variance, the judge cited Claybrooks’s difficult childhood, history of substance

abuse, and recent steps toward self-improvement as factors that would help minimize the

upward variance given. Id. 78. The judge also conducted an analysis of the § 3553(a)

factors. This is the sort of individualized assessment required under the law. As such, the

district court judge did not abuse his discretion by varying upwards by seven months.

VII.

For the foregoing reasons, we find that the district court did not err in applying

U.S.S.G. § 2K2.1(a)(6) and did not plainly err when it did not conduct a Bruen analysis of

the relevant statutes. We further conclude that the district court did not abuse its discretion

by sentencing Claybrooks to seventy months’ imprisonment. Therefore, we affirm.

AFFIRMED

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