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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12291
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HANNIBAL MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cr-00028-JB-N-1
____________________
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2 Opinion of the Court 21-12291
Before LAGOA, BRASHER, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Hannibal Moore was charged with one count of being a
felon in possession of a firearm. He had a two-day trial at which he
testified, asserting a justification defense. The jury rejected that de-
fense, finding him guilty. The district court denied his motion for
a judgment of acquittal or a new trial. After calculating a guidelines
range of 100 to 120 months, the court sentenced him to 80 months
imprisonment. He challenges his conviction and his sentence.
I. BACKGROUND FACTS AND
PROCEDURAL HISTORY
On the last weekend of October in 2017, Hannibal Moore
and his then-girlfriend Samaria Howle traveled from Mobile to Bir-
mingham, Alabama. On that Saturday, while they were driving in
the Birmingham area, police officers stopped them for a traffic vio-
lation. The officers saw that Samaria had bruises on her face and
arms. 1 After photographing her bruises, the officers arrested
Moore for domestic violence and took him to jail.
Samaria called her sister and her brother-in-law, Jerry
Coxwell, and asked them to come meet her in Birmingham. They
did, and the three of them traveled from there back to Mobile in
two separate vehicles. Although she had been allowing Moore to
1 We refer to Samaria Howle by her first name to distinguish her from her ex-
husband, Andrew James Howle, who also plays a role in this case.
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21-12291 Opinion of the Court 3
live at her house, Samaria decided that she didn’t want him to re-
turn there and asked Coxwell to change the locks on the doors of
her house. He did that by swapping the locks on his house for those
on her house.
Still, the next night, Samaria let Moore use her debit card to
purchase a bus ticket from Birmingham back to Mobile. She picked
him up at the bus station in Mobile. At first, she wanted him to get
his belongings and leave her house, but she changed her mind and
decided to let him stay the night.
At about midnight, Samaria’s ex-husband, Andrew James
Howle, rang Samaria’s doorbell. Samaria’s sister had told him
about Samaria having been beaten, and Howle wanted to check on
her. When Samaria opened the door, he saw that her face was
bruised and injured. But she told him that she was fine and that he
should leave. But then Moore came to the door and, according to
Samaria, the two men “had words” and were “hollering” at each
other. At one point Moore told Howle, “I’m a hoe beater.”2
Howle left, but within 30 minutes to two hours later he re-
turned to the house with Coxwell. 3 They knocked on the door and
2 The transcript records that the testimony was that Moore had said “hoe,”
but we doubt that the proclivity he had expressed was for assaulting a partic-
ular type of garden tool. Hoe appears to be an alternative spelling of the de-
rogatory and misogynistic term “ho.” See United States v. Murphy, 406 F.3d
857, 859 n.1 (7th Cir. 2005) (interpreting “hoe” in a transcript to mean “ho”).
3 The testimony varies about the amount of time that passed before Howle
returned to the house with Coxwell. Howle testified that it was 30 minutes to
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4 Opinion of the Court 21-12291
rang the doorbell, but no one answered. Samaria “figured” Howle
had returned; she didn’t know who else it could be. Moore looked
out the window and thought he saw three men outside, one with
a shotgun, but he testified that at the time he didn’t know who the
men were. Whoever they were, according to Moore he thought
they were going to come in and kill him. But he didn’t call 911.
Instead, he told Samaria to get the firearm that she had re-
cently purchased. She wanted to go see who was outside, but
Moore blocked her at the bedroom door and insisted that she get
her gun. She told him that she didn’t want to get the gun, but she
finally complied with his demands and got it.
Samaria and Moore walked toward the front door with Sa-
maria holding the gun and Moore behind her. The house was dark,
with all the lights turned off. Moore was “very panicky,” and Sa-
maria was scared someone would hurt him, although she didn’t
fear for her own safety. What happened next happened very
quickly.
They heard someone coming into the house through the
back door. They turned, and Moore grabbed the pistol from Sa-
maria and shot a man in the groin. That man was Coxwell, who
an hour later. Moore testified that it was 45 minutes after the first visit. Sa-
maria testified that it was about 2:00 a.m., which would have made it almost
two hours after Howle’s first visit to the house. In all of the varying accounts,
it was no more than two hours after his first visit.
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21-12291 Opinion of the Court 5
had entered the house by using his key to open the back door.
There was no forced entry.
Moore put the firearm on the sofa and called 911. Coxwell
ran around to the front of the house where Howle was waiting.
Howle called 911 and took Coxwell to the hospital. When the po-
lice arrived, Moore talked to them, and an officer’s body camera
recorded the conversation.4 At one point Moore told the officers
that Samaria was the one who had shot Coxwell. At another point,
he told the officers that he was the one who had shot Coxwell. In
addition, Moore also made some strange statements, including one
about doing “a drive-by with a missile launcher,” which led the of-
ficer to believe that Moore was agitated and probably drunk. Sa-
maria testified that Moore had been drinking and doing drugs that
night. He admitted to drinking but not to doing drugs.
Moore was indicted on one count of being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g). He conceded
that he was a felon and that the firearm had traveled in interstate
commerce. He proceeded to trial, challenging the possession ele-
ment of the charged § 922(g) offense and asserting a justification
defense. After the government rested its case-in-chief, Moore tes-
tified. He reluctantly admitted on cross-examination that he had
possessed the firearm and had shot Coxwell. When pressed about
4 Some footage from the body camera recording was introduced at trial, and
Officer Riley Stewart testified about it. Moore does not challenge the admis-
sion of that evidence.
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6 Opinion of the Court 21-12291
his statement to police that Samaria had been the one who shot
Coxwell, he said: “In a way, it was [true], because when I reached
for the gun, both our hands were kind of still on the gun. I snatched
it and it went off.” Regardless of his reluctance to admit possession,
all of the elements of the offense were ultimately undisputed. The
dispute was about the justification defense.
After a two-day trial, the jury rejected that defense and
found Moore guilty. He moved for judgment of acquittal, or in the
alternative for a new trial, both of which the district court denied.
The court calculated a guidelines range of 100 to 120 months and
sentenced him to 80 months imprisonment.
II. DISCUSSION
Moore challenges his conviction on six grounds, his sen-
tence on two.
A. Justification Defense: Motion for Judgment of Acquittal or
New Trial
Moore was charged with, tried for, and convicted of one
count of being a felon in possession of a firearm. It is unlawful for
anyone who has been convicted of “a crime punishable by impris-
onment for a term exceeding one year . . . to . . . possess in or
affecting commerce, any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1). Every element of that offense was satisfied here. 5
5 As we have mentioned, Moore briefly disputed the fact that he had possessed
the pistol, but later dropped that contention because the evidence showed that
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21-12291 Opinion of the Court 7
Moore’s affirmative defense of justification was his basis for chal-
lenging the felon in possession charge at trial and is his basis for
attacking his conviction. He contends that the district court should
have found that he established a justification defense and granted
him a judgment of acquittal or, alternatively, a new trial.
Section 922(g) is a general intent crime, and “the defendant’s
motive or purpose behind his possession is irrelevant.” United
States v. Vereen, 920 F.3d 1300, 1308 (11th Cir. 2019). A defendant
who has committed this crime can assert an affirmative defense of
justification (also called “necessity”), but it applies “only in extraor-
dinary circumstances.” Id. at 1310; see also United States v.
Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). To establish a jus-
tification defense to a § 922(g)(1) charge, Moore had the burden of
showing that:
(1) [he] was under unlawful and present, imminent,
and impending threat of death or serious bodily in-
jury; (2) [he] did not negligently or recklessly place
himself in a situation where he would be forced to en-
gage in criminal conduct; (3) [he] had no reasonable
legal alternative to violating the law; and (4) . . . there
was a direct causal relationship between the criminal
action and the avoidance of the threatened harm.
he grabbed it from Samaria and used it to shoot Coxwell. See United States v.
Vereen, 920 F.3d 1300, 1309 (11th Cir. 2019) (recognizing that “the purpose
behind a defendant’s possession [of the firearm] is irrelevant, which means that
he cannot defend against the [felon in possession] crime based on the ‘inno-
cent’ or ‘transitory’ nature of his possession”).
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8 Opinion of the Court 21-12291
Vereen, 920 F.3d at 1310–11 (quoting Deleveaux, 205 F.3d at 1297).
Moore raises three arguments about his justification defense
and the district court’s judgment denying him a new trial or a judg-
ment of acquittal. First, he contends that the district court applied
the wrong standard because in the section of its order denying him
a new trial, the court cited some decisions that involved motions
for judgment of acquittal. Second, he contends that he is entitled
to a new trial because the jury’s verdict was against the great
weight of evidence. Third, almost in passing, he contends that he
is entitled to a judgment of acquittal because his justification de-
fense made the evidence insufficient to support the verdict.
1. The Standards for Granting a Judgment of Acquittal or New
Trial
Federal Rule of Criminal Procedure 29 provides that a de-
fendant is entitled to a judgment of acquittal if “the evidence is in-
sufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). And Fed-
eral Rule of Criminal Procedure 33 provides that “[u]pon the de-
fendant’s motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed. R. Crim. P.
33(a).
When considering a Rule 29(a) motion for a judgment of ac-
quittal, the evidence is viewed in the light most favorable to the
prosecution and all reasonable inferences and credibility choices
are drawn in its favor. See United States v. Fleury, 20 F.4th 1353,
1367 (11th Cir. 2021); United States v. White, 663 F.3d 1207, 1213
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21-12291 Opinion of the Court 9
(11th Cir. 2011). A Rule 33(a) motion for a new trial is different
because “the district court may weigh the evidence and consider
the credibility of the witnesses.” United States v. Brown, 934 F.3d
1278, 1297 (11th Cir. 2019) (quotation marks omitted). But “the
court may not reweigh the evidence and set aside the verdict
simply because it feels some other result would be more reasona-
ble.” United States v. Gallardo, 977 F.3d 1126, 1140 (11th Cir. 2020)
(quotation marks omitted) (emphasis added).
“A motion for a new trial based on the weight of the evi-
dence is ‘not favored’ and is reserved for ‘really exceptional cases.’”
Brown, 934 F.3d at 1297 (quoting United States v. Martinez, 763
F.2d 1297, 1313 (11th Cir. 1985)). “A district court may grant a new
trial based on the weight of the evidence even if the evidence is
sufficient to convict in the rare case in which the evidence of guilt
although legally sufficient is thin and marked by uncertainties and
discrepancies.” Id. at 1298 (quotation marks omitted) (emphasis
added). While we review for an abuse of discretion the grant or
the denial of a new trial, we give denials greater deference. United
States v. Cox, 995 F.2d 1041, 1044 (11th Cir. 1993) (“[W]e have, not
surprisingly, accorded grants of such motions less deference than
denials.”). That makes sense because when a court grants a new
trial in a criminal case where the jury has found the defendant
guilty beyond a reasonable doubt, it is deciding “that the jury was
wrong and that the evidence weighed heavily against the verdict of
twelve men and women honest and true.” Id.
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After the jury returned a guilty verdict against Moore, he
sought a judgment of acquittal under Rule 29 or, in the alternative,
a new trial under Rule 33. He first argued “that a judgment of ac-
quittal may be based on the sufficiency of the evidence as to his
justification defense.” He asserted that he “provided proof of his
justification defense by a preponderance of the evidence, and no
reasonable jury could have concluded otherwise.” Then he argued
for a new trial, asserting that “the great weight and preponderance
of the evidence at trial supported all elements of [his] justification
defense.” He relied on the same evidence and basically the same
arguments he had advanced in his request for a judgment of acquit-
tal. The court concluded that Moore had not met his burdens un-
der either Rule 29 or Rule 33 and that “[j]ustice requires that the
guilty verdict returned against [him] stand.” It denied Moore’s mo-
tion.
2. Moore Failed to Establish That He Was Entitled to a Judg-
ment of Acquittal or a New Trial.
Moore argues that the district court mixed up the Rule 29
and Rule 33 standards, but it didn’t, and Moore has failed to estab-
lish that he was entitled to either a judgment of acquittal or a new
trial. The district court recognized that Moore was asking for those
alternative forms of relief. Its order correctly recited the separate
and distinct standards, analyzing the two alternative requests in
separate sections of its order.
The district court did cite and rely on some sufficiency of the
evidence decisions in its new trial analysis. But the court did so
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21-12291 Opinion of the Court 11
only after recognizing that, in seeking a new trial under Rule 33,
Moore was challenging the sufficiency of the evidence and was re-
lying “on the same arguments rejected in his Rule 29(a) [judgment
of acquittal] motions.” And the court cited the sufficiency of the
evidence decisions for just that –– how courts should consider suf-
ficiency of the evidence, including credibility determinations. The
court did not cite those decisions as the standard for granting a new
trial; instead, the order’s “standard of review” section accurately
recited the standards for granting a new trial under Rule 33. The
court recognized that a new trial is justified if, but only if, the evi-
dence preponderates so heavily against the jury’s verdict that it
would be a miscarriage of justice to let the verdict stand. See Cox,
995 F.2d. at 1043.
Whether we are reviewing a district court’s denial of a judg-
ment of acquittal or denial of a new trial, we have recognized the
essential role of the jury in making credibility determinations. See
United States v. Green, 981 F.3d 945, 960 (11th Cir. 2020) (review-
ing the denial of both types of relief and stating that “[t]o the extent
the appellants’ arguments challenge the credibility of various wit-
nesses, credibility determinations are exclusively within the prov-
ince of the jury”). Credibility determinations are given great
weight in both contexts. Sufficiency of the evidence matters in
both contexts.
By the end of the two-day trial, it was undisputed that Moore
was guilty of each of the elements of being a felon in possession of
a firearm. As we have said, the only dispute was about whether he
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12 Opinion of the Court 21-12291
had proven his affirmative defense of justification. The jury heard
conflicting accounts about that defense from different witnesses,
including Moore himself, and plenty of the testimony undermined
his justification defense theory. The jury was free to make its own
credibility determinations. “We have even held that because a jury
is free to infer from a testifying defendant’s demeanor that he is not
telling the truth, a statement by a defendant, if disbelieved by the
jury, may be considered as substantive evidence of the defendant’s
guilt when combined with other evidence.” See, e.g., United States
v. Pon, 963 F.3d 1207, 1234 (11th Cir. 2020) (quotation marks omit-
ted). “This is especially true in regard to highly subjective elements
such as the defendant’s intent or knowledge.” Id. (quotation marks
omitted). Those same principles apply to the inferences a jury
makes when considering a testifying defendant’s intent or
knowledge for purposes of the elements of an affirmative defense.
When considering Moore’s justification defense and partic-
ularly whether the evidence showed the disqualifier that he had
“negligently or recklessly place[d] himself in a situation where he
would be forced to engage in criminal conduct,” Vereen, 920 F.3d
at 1311 (quoting Deleveaux, 205 F.3d at 1297), the jury was free to
disbelieve him. The jury heard testimony that when Samaria’s ex-
husband Howle came to the house, Moore escalated the situation
by coming to the door and arguing with him. Howle testified that
Moore proclaimed himself to be a “hoe beater.” The jury could
have reasonably found that if Moore had felt seriously threatened
by Howle, he could have called 911 at that time. Instead, Moore
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21-12291 Opinion of the Court 13
allowed himself to be involved in a heated argument and contrib-
uted to the circumstances that later led him to engage in the crim-
inal conduct of possessing the firearm. See id.
Samaria testified that Moore had been drinking and doing
drugs that night, and although he denied the drugs he admitted to
the drinking. There was evidence for a reasonable jury to find that
Moore’s judgment and self-restraint may have been impaired, con-
tributing to a finding that he “negligently or recklessly place[d]
himself in [the] situation” that led to his criminal possession of the
firearm. Id. (quoting Deleveaux, 205 F.3d at 1297).
And there was more evidence that Moore caused the situa-
tion to escalate. When Howle returned to the house late that night
with Coxwell, Moore had another opportunity to call 911. But he
didn’t. And he refused to let Samaria investigate the situation, even
though it was her house and she had only begrudgingly given him
permission to stay the night after he had been arrested for domestic
violence against her the day before. He blocked Samaria inside the
bedroom and insisted that she get her firearm. When Coxwell used
his key to enter the house, Samaria was holding the gun, but Moore
grabbed it from her and shot him. Only then did Moore finally call
911.
Based on the evidence presented, the jury could have rea-
sonably found that if Moore had allowed Samaria to resolve the
situation on her own, she would have made her own decision
about whether she wanted to discharge her own firearm in her
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14 Opinion of the Court 21-12291
own house. Instead, he took over and escalated the situation,
grabbed the firearm, and shot a man with it.
Moore testified that he didn’t know who had arrived at the
house at 2:00 a.m., but the jury wasn’t required to believe that or
anything else he said. Reasonable jurors could have found that
Moore knew Howle had returned along with friends or relatives
because of Howle’s concern for Samaria after he learned she had
been beaten. That is what Samaria believed. And reasonable ju-
rors could have found that, despite Moore’s explanations, he cre-
ated the conditions that led to his unlawful possession of the fire-
arm. See Vereen, 920 F.3d at 1311.
Jurors could consider Moore’s testimony in light of the tes-
timony from other witnesses, video evidence from his interaction
with police after the shooting, and his demeanor on the stand. Dur-
ing his testimony, Moore was asked about the fact that he had ini-
tially told the police that Samaria shot Coxwell. Confronted with
that, he hedged: “In a way, it was [true], because when I reached
for the gun, both our hands were kind of still on the gun.” The jury
could have reasonably found, as its verdict reflects, that Moore was
telling the truth only “[i]n a way,” and not much of a way at that.
The jury also could have reasonably found, as its verdict re-
flects, that there was no “direct causal relationship between the
criminal action [of grabbing and illegally possessing the firearm]
and the avoidance of the threatened harm.” Vereen, 920 F.3d at
1311 (quoting Deleveaux, 205 F.3d at 1297). That’s because Sa-
maria was in charge of her own firearm, and Moore could have
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21-12291 Opinion of the Court 15
allowed her to handle the situation that was evolving at her own
house in the way she saw fit. The jury could have reasonably
found, as its verdict reflects, that there was no necessity — no jus-
tification — for Moore’s persistence in escalating the situation.
As Samaria told the jury: “So he kept persisting, persisting
about not letting me go to the door and wanted me to get the gun.
So, finally, I said, okay; I will get it, but I’m going to be the one that
holds it and goes to the door to see what is going on out there.”
But Moore prevented Samaria from attempting to resolve the mat-
ter peacefully. He did so by initially stopping Samaria from leaving
her bedroom, by “persisting, persisting” that she go and get the
firearm, and, once she gave in to his demands, by grabbing the fire-
arm from her and firing it.
The purpose of § 922(g) is “to keep guns out of the hands of
convicted felons.” Vereen, 920 F.3d at 1308. As the Supreme Court
described: “Congress sought to keep guns out of the hands of those
who have demonstrated that they may not be trusted to possess a
firearm without becoming a threat to society.” Small v. United
States, 544 U.S. 385, 393 (2005). Moore is the kind of person Con-
gress was concerned about: a convicted felon who possessed a gun
and used it to shoot someone.
The jury heard Moore admit on cross-examination that he
had been convicted of another felon in possession offense. And
that conviction came less than two years before the trial in this case.
Given all of the evidence it heard, the jury’s finding that Moore’s
illegal possession of the firearm was not justified isn’t a miscarriage
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16 Opinion of the Court 21-12291
of justice. See Cox, 995 F.2d. at 1043. If the district court had
granted the motion for a new trial, that would have been a miscar-
riage of justice. See id. The evidence was sufficient for the jury to
reject his justification defense and find him guilty of being a felon
in possession of a firearm, which precluded a judgment of acquittal.
B. The Admission for Impeachment Purposes of the Two Prior
Convictions that Were More than Ten Years Old Does Not
Require Reversal
Moore contends that the district court erred by allowing the
government to question him about two of his prior convictions be-
cause they were too old to be used for impeachment purposes. The
government also asked about his earlier felon in possession convic-
tion, but that conviction was less than two years old, and Moore
had no basis for challenging its admission, didn’t do so at trial, and
doesn’t do so now. His challenge is to the prosecutor questioning
him at this trial in 2020 about his conviction for robbery in 2005
and his conviction for giving false information to a police officer in
2006.
We review de novo a district court’s interpretation of the
Federal Rules of Evidence but review its evidentiary rulings only
for an abuse of discretion. United States v. Estrada, 969 F.3d 1245,
1270 (11th Cir. 2020). And, even if there is error, we will not re-
verse if the government meets its burden of showing that the error
is harmless. See United States v. Phaknikone, 605 F.3d 1099, 1109
(11th Cir. 2010). “Reversal is warranted only if the error resulted
in actual prejudice because it had substantial and injurious effect or
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21-12291 Opinion of the Court 17
influence” on the jury’s verdict. Id. (cleaned up). We can consider
in the harmlessness analysis the overwhelming evidence of the de-
fendant’s guilt that exists regardless of an erroneous evidentiary
ruling. See id.
1. Whether the Two Convictions Were Stale for Rule 609(b)
Purposes and Should Not Have Been Admitted for Impeach-
ment
Generally, if a defendant opts to testify as a witness in his
criminal trial, as Moore did, and he has a prior conviction for a fel-
ony, evidence of that conviction “must be admitted” for impeach-
ment purposes “if the probative value of the evidence outweighs
its prejudicial effect to that [testifying] defendant.” Fed. R. Evid.
609(a)(1)(B) (emphasis added). But that subparagraph of Rule 609
does not apply to convictions when “more than 10 years have
passed since the witness’s conviction or release from confinement
for it, whichever is later.” Fed. R. Evid. 609(b). A previous convic-
tion with that much age on it “is admissible only if . . . its probative
value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1) (emphasis
added). 6
That ten-year, stale-by dividing line in Rule 609(b) deter-
mines whether the probative value of the previous conviction has
6 Rule 609(b)(2) also requires that the proponent of admitting the conviction
has given the other party “reasonable written notice” of its intent to use that
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18 Opinion of the Court 21-12291
to “outweigh[]” the prejudicial effect or has to “substantially out-
weigh[]” it. And the difference between those two standards can
make all the difference. See, e.g., United States v. Pope, 132 F.3d
684, 687 (11th Cir. 1998) (noting that Rule 609(b) “creates a strong
presumption against the use . . . of stale convictions” to impeach a
witness); United States v. Mullins, 562 F.2d 999, 1000 (5th Cir. 1977)
(stating that “Rule 609(b) makes prior convictions generally inad-
missible” if they are too old); id. (characterizing the “standards of
Rule 609(a)” as “more lenient” and the “standards of Rule 609(b)”
as “stricter”). 7
The question here is how to calculate the starting line of a
conviction’s ten-year run to the stale-by finish line in Rule 609. The
rule says the ten-year period begins at the time of “the witness’s
conviction or release from confinement for it, whichever is later.”
Fed. R. Evid. 609(b) (emphasis added). That seems simple enough,
but what does “release from confinement” mean? More specifi-
cally, was a defendant who received a sentence consisting of im-
prisonment followed by probation “release[d] from confinement”
for Rule 609 purposes when he finished serving the imprisonment
part of his sentence or only when the probation part was over?
conviction. There’s no dispute that the government gave Moore that required
notice.
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit issued
before October 1, 1981.
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21-12291 Opinion of the Court 19
This issue arose concerning Moore’s 2005 robbery convic-
tion and his 2006 conviction for giving false information to a police
officer, which were introduced over his objection to impeach him
when he testified at his 2020 trial in this case. The district court
overruled Moore’s Rule 609(b) objection to the admission of his
2005 and 2006 convictions for two reasons.
The court discussed the first reason when the issue came up
at trial. The court ruled that probation was part of the custodial
time or the custodial component of the sentence, which meant that
the ten-year measurement under the rule did not begin to run until
probation ended. (There is no dispute that the two prior convic-
tions in question were less than ten years old for purposes of Rule
609(b) if the period of probation doesn’t count toward the ten-year
mark.) As a result, the probative value of each conviction had to
outweigh the prejudicial effect but did not have to substantially
outweigh it. The court understood that and found the probative
value did outweigh the prejudicial effect.
We disagree with the district court’s premise that probation
counts as confinement under Rule 609(b). The three circuits that
have addressed the issue have concluded that it does not. United
States v. Stoltz, 683 F.3d 934, 939 (8th Cir. 2012) (“As our sister cir-
cuits have held, confinement for purposes of the ten-year time limit
in Rule 609(b) does not include periods of probation. Rather, Rule
609(b)’s ten-year clock starts at the witness’s release from any phys-
ical confinement, or in the absence of confinement, the date of the
conviction.”) (alteration adopted, quotation marks and citation
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20 Opinion of the Court 21-12291
omitted); United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008)
(“[W]e hold that ‘confinement’ for purposes of the ten-year time
limit in Rule 609(b) does not include periods of probation or pa-
role.”); United States v. Daniel, 957 F.2d 162, 168 (5th Cir. 1992)
(same).
The Fifth Circuit was the first out of the gate on this issue,
and its Daniel decision is persuasive. This is the reasoning that per-
suaded the Seventh Circuit (whose decision was followed by the
Eighth Circuit) and also persuades us:
The historical note to Rule 609 shows that,
prior to 1972, the rule contemplated that the ten-year
period should run from “the expiration of the period
of his parole, probation, or sentence.” This section
was amended in 1972, however, and now states that
a conviction is not admissible if more than ten years
have elapsed since “release from confinement.” The
change in the language of the rule forecloses the in-
terpretation urged by the appellants. Indeed, the [par-
ties seeking to admit the prior conviction impeach-
ment evidence] can point to no authority for their ar-
gument, save the mistaken dicta in [a district court
opinion].
Daniel, 957 F.2d at 168 (footnote omitted). To which we would
add: the rule says “confinement,” not “restriction.” Probation re-
stricts, it does not confine. We join the Fifth, Seventh, and Eighth
Circuits in holding that the ten-year stale-by measurement of Rule
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21-12291 Opinion of the Court 21
609(b) is not delayed by a period of probation that follows the con-
finement part of a sentence.
2. Whether Any Error in Admission of the Two Prior Convic-
tions Was Harmless
When the issue about the two prior convictions came up
again in Moore’s post-verdict motion for a new trial, the district
court added a second reason it believed that the 2005 robbery con-
viction and the 2006 false information conviction were admissible.
The court stated that it “would have allowed the cross examina-
tion” about those two convictions “even if the higher standard of
Rule 609(b)(1)” applied.
It would have, the court explained, because there was body
camera video evidence at trial of Moore making statements to po-
lice officers after the shooting, and Moore had exercised his right
to testify. Because of those things, his credibility “was a key factor
to be assessed and determined by the jury.” The court concluded
that the significance of the credibility issue made the impeachment
evidence especially probative, which persuaded the court that the
evidence’s probativeness “substantially outweigh[ed]” its prejudi-
cial effect, satisfying the higher standard of Rule 609(b)(1).
That alternative reasoning shifts the focus to whether the
district court correctly concluded that the probative value of the
two convictions “substantially outweigh[ed]” their prejudicial ef-
fect. But that is a question we need not answer. We are convinced
that even if the district court erred in determining that the
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22 Opinion of the Court 21-12291
probative value of the two convictions did substantially outweigh
the prejudicial impact and should not have allowed the two con-
victions to be admitted, the error in doing so was harmless.
It bears repeating that Moore is challenging on appeal the
admission of only two convictions, one for robbery 15 years before
the trial and the other for giving false information to a police officer
14 years before the trial. He has not challenged the admission of
evidence that he was convicted for being a felon in possession of a
firearm, a conviction that occurred less than two years before the
trial.
More importantly, there can be no dispute that Moore was
guilty of every element of his latest felon in possession of a firearm
charge, the one that led to the conviction before us. Defense coun-
sel admitted as much in closing arguments:
[F]rankly, you’ve heard testimony that [Moore] had
his hand on the gun; that he shot the gun; that he’s a
felon; the gun was in interstate commerce. I’m not
sure what else there is that you need to get to the
point where you need to just go ahead and consider
whether the defense we’ve raised is a good defense or
not a good defense because I think that — we think
that’s where the real question lies in this case.
And Moore also admitted as much through a stipulation and during
cross-examination.
The jury had plenty of reasons to reject Moore’s justification
defense and his testimony intended to support it. On cross-
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21-12291 Opinion of the Court 23
examination, he repeatedly gave non-responsive and evasive an-
swers, and the court had to remind him 18 times to answer the
question being asked. That had to have made a lasting impression
on the jury about whether he was truthful. In that way, he im-
peached himself. He also admitted he had been drinking on the
night of the shooting. And Samaria testified that he had taken
drugs, although he denied that.
When pressed during cross-examination about whether his
statement to police that Samaria had shot Coxwell was true, Moore
could not bring himself to flat out admit that it wasn’t. Instead, he
testified that “[i]n a way, it was” true. He said that even though all
of the evidence — including his own admissions during other parts
of his cross-examination that he had fired the gun — showed his
statement blaming Samaria was a lie.
Moore did admit during cross-examination that he did not
call 911 at any time before he shot Coxwell. He didn’t call when
Samaria’s ex-husband Howle came to the house at around mid-
night, and he didn’t call when he claims to have seen three strange
men outside at 2:00 in the morning, including, according to his tes-
timony, one with a shotgun. He asserted that there wasn’t time to
call 911 when he saw someone outside with a shotgun because by
the time the police arrived, he “would have been dead,” but based
on the evidence, the jury was free to discredit that testimony and
reach a different conclusion.
Howle testified that neither he nor Coxwell was armed. Sa-
maria was armed, but only at Moore’s insistence, and Moore
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24 Opinion of the Court 21-12291
grabbed the gun from her, having decided that he should be the
one in control of it. He deliberately armed himself. He put himself
in control of the firearm and the situation.
According to Samaria’s testimony, someone (who turned
out to be Coxwell) opened the back door and entered the house at
2:00 in the morning when the house was dark. Samaria testified
that: she was “very scared” when someone came in the back door
of her house; it was dark, and she couldn’t see who it was; and she
was not afraid that someone would hurt her but was afraid some-
one would hurt Moore. Those are extenuating circumstances.
But Moore’s justification defense was weak at best; he offers
no reason why he had to interpose himself in the situation. There
was no evidence that Samaria was unable to resolve it. There was
plenty of evidence that Moore blocked her effort to leave the bed-
room so that she could address, and possibly defuse, the situation.
He insisted that she get her firearm and then took it from her. Any
reasonable jury would have found that Moore had at least negli-
gently or recklessly put himself into a situation where he wound
up possessing, and using, a firearm. And that rules out a justifica-
tion defense, which was the only defense he put forward. See Ve-
reen, 920 F.3d at 1311; Deleveaux, 205 F.3d at 1297.
Because Moore was impeached by other means and because
overwhelming evidence proved his guilt and disproved his only de-
fense, any error in admitting the 2005 robbery and 2006 false infor-
mation convictions was harmless. Phaknikone, 605 F.3d at 1109.
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21-12291 Opinion of the Court 25
C. The District Court Acted Within Its Discretion When It Al-
lowed the Government to Refresh Samaria’s Recollection
by Showing Her, Before She Was Questioned About It, a
Copy of Her Written Statement to the Police
The government wanted Samaria to testify as a witness, but
before trial she had given some inconsistent statements. Because
of that, the government filed a pre-trial motion asking the court to
call Samaria as its own witness under Rule 614. See Fed. R. Evid.
614(a) (“The court may call a witness on its own or at a party’s re-
quest. Each party is entitled to cross-examine the witness.”). The
government later told the court that no one really knew how Sa-
maria was going to testify, and either the government or the de-
fense might end up needing to impeach her.
The district court wanted to avoid stepping into the “role of
fact prover” instead of being the “impartial arbiter of the rules.”
But defense counsel objected to having the court call Samaria as its
own witness. As a compromise, the government proposed calling
her as its witness, but it wanted both sides to have latitude about
impeachment and wanted to use a prior statement to refresh her
recollection. The court agreed to that approach.
During Samaria’s testimony on direct examination, the gov-
ernment requested permission to refresh her recollection with a
written statement she had given the police on the night of the
shooting. Defense counsel objected, arguing that she shouldn’t be
shown her statement before she was questioned about it. The
court overruled that objection.
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26 Opinion of the Court 21-12291
Moore challenges that ruling. He contends that witnesses
must testify based on their own personal knowledge, see Fed. Rule
Evid. 602, and cannot “testify from prepared notes under the guise
of refreshing recollection.” But that’s not what happened here.
The prosecutor asked Samaria if Moore had asked her to get
her firearm the first time Howle came to her house. Samaria testi-
fied: “No. Not at that point.” Then the prosecutor asked Samaria
if she had given the police a written statement. When she said that
she had, she was asked if reviewing it would refresh her recollec-
tion about what she had told the police the night of the shooting.
When she said that it would, the prosecutor asked her to review
her written statement. Moore objected, the court overruled the
objection, and Samaria silently read part of her earlier statement to
the police as the prosecutor had requested.
After she finished reading, Samaria testified: “[T]hat’s not ex-
actly how it went down.” She went on to describe her memory of
what had happened that night, including that Moore insisted she
get her firearm after Howle returned to the house at 2:00 a.m.
Nothing in the record indicates that Samaria was testifying based
on “prepared notes.” And Moore had a chance to cross-examine
her about the testimony she gave after reading her written state-
ment, which he did.
“We know of no prohibition forbidding witnesses from re-
viewing a prior statement before testifying.” United States v.
Knight, 867 F.2d 1285, 1289 n.5 (11th Cir. 1989). And “[t]rial courts
have wide latitude in ruling on evidentiary questions.” United
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21-12291 Opinion of the Court 27
States v. Bibbs, 564 F.2d 1165, 1168 (5th Cir. 1977). Not only that,
but if any error did occur, it was harmless. Samaria’s in-court state-
ments about the timing of when Moore told her to get the gun
were consistent with his. They both testified that Moore did not
insist that she get her gun until Howle came back a second time at
2:00 a.m. Allowing Samaria to refresh her recollection before tes-
tifying did not prejudice Moore; it was harmless. See Phaknikone,
605 F.3d at 1109.
D. The District Court Acted Within Its Discretion When It Ad-
mitted Evidence of Moore’s Domestic Abuse of Samaria
Moore contends that evidence of domestic violence, which
included photos of Samaria’s injuries and testimony about his do-
mestic violence arrest the day before the shooting occurred,
amounted to bad acts or propensity evidence and shouldn’t have
been admitted. He argues that the “domestic incidents involving
Moore and Samaria” were too remote in time and too unrelated to
the later altercations with Howle and Coxwell to be relevant to his
justification defense.
1. The Domestic Violence Was Not Remote in Time
The domestic violence was part of the entire sequence of
events that occurred over a short period of time. Samaria testified
that on Saturday, October 28, 2017, she and Moore traveled to Bir-
mingham. While there, they were stopped for a traffic violation,
and Moore was arrested for domestic violence. The police took
photos of Samaria’s bruises. As we have mentioned, Samaria called
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28 Opinion of the Court 21-12291
her sister and her brother-in-law to come to Birmingham, and the
three of them travelled back to Mobile in two separate vehicles.
She asked her brother-in-law to change the locks at her house, and
he “exchanged” the locks on his house for hers.
Samaria first testified on direct examination that on Sunday
night Moore took “an Uber or taxi” and ended up back at her
house, though it’s unclear from the record the precise time he ar-
rived. On cross-examination, she admitted that she let him use her
debit card to pay for his bus ticket to return to Mobile from Bir-
mingham, and she picked him up at the bus station.
Samaria testified that she wanted Moore to get his belong-
ings and leave her house, but then she decided to let him in and she
decided to let him stay. Moore was at Samaria’s house on the night
of Sunday, October 29, which is when her ex-husband Howle
knocked on the door. Howle had heard “what had happened” in
Birmingham and came over to check on Samaria. He testified that
he went to Samaria’s house that night because her sister had called
and told him Samaria had been beaten up “a couple days before,”
and he saw the bruises on her face when she opened the door.
Samaria testified that she told Howle she was fine and that
he needed to leave, but Moore came to the door and he and Howle
“had words.” According to Howle, some of those words included
Moore boasting, “I’m a hoe beater.” Samaria recalled that Moore
and Howle were “hollering back and forth at each other” as Howle
was leaving. A couple of hours later at 2:00 a.m., Howle returned
to the house with Coxwell on what was then the morning of
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21-12291 Opinion of the Court 29
Monday, October 30, 2017. That is when Moore illegally possessed
Samaria’s firearm and shot Coxwell.
Moore’s grabbing the gun and shooting of Coxwell occurred
less than 48 hours after he was arrested for domestic violence. And
the domestic violence incident precipitating that arrest was recent
enough that Samaria was still visibly bruised. This sequence of
events was close in time — not at all remote.
2. The Domestic Violence Evidence Was an Essential Part of
the Story
Moore contends that the domestic violence evidence was ir-
relevant because it was unrelated to the October 30, 2017 events.
But it was related. The domestic violence evidence was a crucial
part of the story that had a direct bearing on Moore’s justification
defense. Without it, there would have been no context for the jury
to understand what happened on the night that Moore possessed
the firearm and shot Coxwell. The jury would not have under-
stood why Howle showed up at Samaria’s house that night, why
Coxwell was involved in the situation, or why and how Coxwell
entered the house with a key.
As Moore’s counsel said in his opening statement, this was a
“messy situation.” The domestic violence evidence was part of the
mess that “pertained to a chain of events forming the context, mo-
tive, and set-up of the crime,” United States v. Mills, 704 F.2d 1553,
1559 (11th Cir. 1983), and led to Moore’s assertion of an affirmative
defense to that crime. It had everything to do with whether Moore
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30 Opinion of the Court 21-12291
himself contributed to creating the volatile situation that led to his
illegal possession of the firearm. That means it was closely con-
nected to his justification defense. And the district court did not
abuse its discretion in admitting it.
E. The District Court Acted Within Its Discretion When It Re-
fused to Allow Defense Counsel to Ask Samaria if She Had
Told Moore That Howle Had a Juvenile Conviction in
Texas for Murder
Moore contends that the district court abused its discretion
by refusing to let him ask Samaria about Howle’s alleged juvenile
conviction even though he had no evidence of that conviction. He
argues that it was “nearly impossible” to get that evidence because
it involved a juvenile case in another state. He asserts that he
wasn’t offering it for the truth of the matter, but instead under Rule
404(b) to show his own knowledge and state of mind. Moore as-
serts that his knowledge of Howle’s prior violent act was important
to his justification defense.
The existence of Howle’s alleged juvenile conviction was
purely speculative, and the court had broad discretion to exclude
references to it. See Yellow Pages Photos, Inc. v. Ziplocal, LP, 795
F.3d 1255, 1276 (11th Cir. 2015) (holding that the district court did
not abuse its discretion in excluding a witness’s testimony because
it “was pure speculation, and thus too attenuated to be relevant”).
Moore cannot establish that it would have had any bearing on his
state of mind anyway because he repeatedly testified that he did
not know Howle had returned at the time of the shooting and
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21-12291 Opinion of the Court 31
didn’t expect Howle to return. Whatever Moore had been told
about Howle was irrelevant if Moore didn’t believe Howle was at
the house.
And in any event, excluding questions about a juvenile con-
viction for murder, for which there was zero evidence, was harm-
less because it was speculative. See United States v. Sellers, 906
F.2d 597, 602–03 (11th Cir. 1990) (concluding that the exclusion of
a “rather murky proffer of evidence” about who said what to
whom was harmless).
F. The District Court Acted Within Its Discretion When It An-
swered a Question from the Jury
Moore contends that the district court erred in answering a
question from the jury. During deliberations, the jury asked the
court two questions. The first was: “(1) Do all four of the admis-
sions have to be true to prove his innocence?” The second was:
“(2) Can a convicted felon reside in a house with a weapon?”
1. The First Question
The district court said this about question number 1, which
involved the elements of Moore’s affirmative defense:
So as to question number one, my thought would be
to say, yes; in order to find the defendant sustained
his burden of proof on the defense of necessity, you
must be satisfied that he has proved all four elements
set out in the jury instruction by a preponderance of
evidence as defined in that instruction.
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32 Opinion of the Court 21-12291
Both sides agreed to that without any further discussion.
2. The Second Question
The court asked both sides for “suggestions” about how to
answer question number 2, which involved whether a convicted
felon could reside in a house where there was a firearm. At first,
defense counsel wanted the court to answer it simply: “yes.” The
court was concerned that answering it that way would draw too
much attention to an irrelevant issue about possession of the fire-
arm. After further discussion about what to say (covering 7 pages
of the transcript), the court proposed this answer: “You have re-
ceived all of the testimony, evidence, and applicable law necessary
to reaching a verdict. You should focus on the instructions you
have and apply them to the facts as you have determined them to
be.” Both sides agreed to that.
Now Moore contends that the court erred by not answering
the question with a simple “yes.” He argues that the court’s re-
sponse failed to answer the jury’s question in the “context of the
case” and that the question bore directly on his justification de-
fense.
Even if we assume that Moore’s initial argument for a “yes”
preserved his objection to the court’s proposed answer that he ul-
timately agreed to (enabling him to avoid plain error review),
there’s no abuse of discretion here. Moore admitted to possession.
There was no dispute that he grabbed the gun and shot Coxwell.
The court considered the parties’ arguments and balanced the risk
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21-12291 Opinion of the Court 33
of introducing confusion where possession of a firearm was not at
issue in the trial. The government had not argued that Moore’s
mere presence in the house with the firearm made him guilty of
the charged offense or negated his justification defense.
Moore didn’t object to the jury instructions, and the court
did not err by referring to those previous instructions. See United
States v. Bailey, 830 F.2d 156, 157 (11th Cir. 1987) (rejecting the
argument that “the judge erred by referring the jury back to the
earlier jury instructions rather than directly responding to the jury's
questions”). “District courts have considerable discretion regard-
ing the extent and character of supplemental jury instructions,” so
long as those instructions do not “misstate the law or confuse the
jury.” United States v. Joyner, 882 F.3d 1369, 1375 (11th Cir. 2018).
The court properly avoided confusing the jury by refusing to inject
new issues into the case. See id. at 1376. Moore has shown no
error based on the court’s answer to the jury’s question.
G. Both of Moore’s Challenges to the Calculation of His Guide-
lines Range Fail
Moore’s two sentence challenges have no more merit than
his challenges to his conviction.
He contends that the court should have reduced his base
offense level by two points for acceptance of responsibility. He also
contends that the court clearly erred by adding four levels to his
base offense level because he possessed a firearm while committing
felony assault. He doesn’t argue that a felony assault didn’t happen
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34 Opinion of the Court 21-12291
when he grabbed the firearm the law prohibited him from pos-
sessing and shot Coxwell — only that it didn’t count because he
was acting in self-defense. We address each of those sentence chal-
lenges in turn.
1. The District Court Did Not Clearly Err by Denying Moore
a Two-Point Reduction for Acceptance of Responsibility
Moore contends that, even though he went to trial, put the
government to its burden of proof, and asserted a justification de-
fense, he was entitled a two-point reduction to his base offense
level for acceptance of responsibility. He relies on this application
note to the relevant guideline:
This adjustment is not intended to apply to a defend-
ant who puts the government to its burden of proof
at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and ex-
presses remorse. Conviction by trial, however, does
not automatically preclude a defendant from consid-
eration for such a reduction. In rare situations a de-
fendant may clearly demonstrate an acceptance of re-
sponsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may
occur, for example, where a defendant goes to trial to
assert and preserve issues that do not relate to factual
guilt (e.g., to make a constitutional challenge to a stat-
ute or a challenge to the applicability of a statute to
his conduct). In each such instance, however, a deter-
mination that a defendant has accepted responsibility
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21-12291 Opinion of the Court 35
will be based primarily upon pre-trial statements and
conduct.
U.S.S.G. § 3E1.1 cmt. n.2 (emphasis added). Moore argues that by
raising a justification defense, he was not challenging the govern-
ment’s evidence on the felon in possession charge. But he made
the government prove that charge. Only after the government
rested its case did Moore acknowledge that he had possessed the
gun. He also put the judge and jury through a trial.
We review only for clear error the factfindings on which a
district court bases its denial of an acceptance of responsibility re-
duction. United States v. Mathews, 874 F.3d 698, 709 n.7 (11th Cir.
2017). We will not set aside that denial “unless the facts in the rec-
ord clearly establish that the defendant has accepted responsibil-
ity.” United States v. Moriarty, 429 F.3d 1012, 1022–23 (11th Cir.
2005). The facts show that Moore didn’t accept responsibility. He
didn’t admit that he possessed the gun until he had no other option
based on Samaria’s testimony, and even then, he tried to say that
“[i]n a way” they both possessed the gun. He was evasive when
testifying on cross-examination, and the court had to remind him
15 times to answer the question he had been asked. There was no
error, much less clear error, in the court’s finding that Moore had
not accepted responsibility.
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36 Opinion of the Court 21-12291
2. The District Court Did Not Clearly Err by Enhancing
Moore’s Base Offense Level on the Ground that His Posses-
sion of the Firearm Was in Connection with Another Felony
Offense
The Presentence Investigation Report recommended in-
creasing Moore’s base offense level by four because he possessed
the firearm in connection with another felony offense, which was
felony assault. Moore disputes that there was a felony assault, ar-
guing that he acted in self-defense under Alabama law. The district
court rejected the argument that Moore had acted in self-defense
and applied the enhancement. It found that Coxwell had contrib-
uted to some extent to the violent encounter but also found that
Moore’s actions were not justified, as the jury had decided when it
rejected his justification defense.
“A district court’s determination that a defendant possessed
a gun ‘in connection with’ another felony offense is a finding of fact
that we review for clear error.” United States v. Martinez, 964 F.3d
1329, 1333 (11th Cir. 2020) (quotation marks omitted). Under Ala-
bama law, assaulting a person with a deadly weapon is a felony.
Ala. Code § 13A-6-21(a)(2), (a)(3), (b). It is true that one potential
defense to that crime involves Alabama’s “stand your ground” stat-
ute that does away with the common law duty to retreat if a person
is lawfully in a home where he is entitled to be, as Moore was. See
id. § 13A-3-23(b). In addressing a felon in possession situation, how-
ever, the Alabama Court of Criminal Appeals has explained:
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21-12291 Opinion of the Court 37
[A] person should not be able to unlawfully take pos-
session of a weapon well before an altercation occurs,
enter circumstances that may result in a violent con-
frontation, use that weapon in a violent altercation,
and then avail himself or herself of the “no-duty-to-
retreat” right created by § 13A-3-23(b). In such a situ-
ation, the defendant is engaged in unlawful activity
before it becomes necessary to do so. As such, the
defendant who is illegally in possession of a firearm
should be required to retreat, if retreat is possible.
Fuller v. State, 231 So. 3d 1207, 1216 (Ala. Crim. App. 2015). The
court went on to say that “[w]e certainly do not believe the Ala-
bama Legislature intended to avail armed violent felons of its
stand-your-ground law.” Id. at 1217.
Based on the facts presented at trial, the district court did not
clearly err in finding that Moore had not established self-defense as
a justification for shooting Coxwell. For all the reasons already dis-
cussed, the evidence showed that Moore escalated the situation
and interposed himself when Samaria was attempting to handle it.
He claimed his actions were justified because he had to defend him-
self, but it was Moore who had insisted that Samaria get her gun
when she did not want to; she wanted to see who was outside and
resolve the situation herself. Moore also could have called 911 and
asked that law enforcement officers be sent to the house.
It wasn’t clear error for the district court to find that Moore,
a convicted felon, had possessed a firearm in connection with an-
other felony offense.
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38 Opinion of the Court 21-12291
AFFIRMED.