Alternative-Sentence Harmless Error and Continued Binding Effect of Rozier/Richardson After Bruen, Rahimi, Kisor, and Dupree

I. Introduction

In United States v. Aunyis Cherry (11th Cir. Aug. 6, 2026) (unpublished), the Eleventh Circuit affirmed Aunyis Cherry’s conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and his 120-month sentence (the statutory maximum).

The appeal arrived after a prior remand: the district court had originally imposed an ACCA-enhanced sentence of 275 months, but the Eleventh Circuit vacated that sentence because the cited predicates did not qualify as “serious drug offenses.” See United States v. Cherry, 2025 WL 400724, at *2-3 (11th Cir. Feb. 5, 2025). On resentencing, the key issues became (1) whether § 922(g)(1) is unconstitutional after modern Second Amendment cases, and (2) whether two Guidelines enhancements were properly applied: U.S.S.G. § 2K2.1(b)(4)(A) (stolen firearm) and § 2K2.1(b)(6)(B) (firearm in connection with another felony).

II. Summary of the Opinion

The panel affirmed across the board:

  • Conviction: The court rejected Cherry’s Second Amendment challenge, holding it was foreclosed by circuit precedent upholding § 922(g)(1), and that intervening Supreme Court decisions did not abrogate that precedent.
  • § 2K2.1(b)(4)(A) (stolen firearm): The court held the enhancement applies regardless of whether the defendant knew the gun was stolen, and that this strict-liability feature does not violate due process—again because binding precedent controlled.
  • § 2K2.1(b)(6)(B) (connection with another felony / acquitted conduct): The court did not decide whether the enhancement was erroneous. Any error was deemed harmless because the district judge expressly stated he would impose the same 120-month sentence irrespective of the Guidelines dispute, and the sentence was substantively reasonable under 18 U.S.C. § 3553(a).

III. Analysis

A. Precedents Cited

1. Standards of review and appellate posture

  • United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010): Set the framework for plain-error review when the constitutionality of a statute is raised for the first time on appeal (as Cherry did with his Second Amendment challenge).
  • United States v. Bowers, 811 F.3d 412, 430 (11th Cir. 2016): Confirmed de novo review for constitutional challenges to a sentence.
  • United States v. Rodriguez, 75 F.4th 1231, 1241 (11th Cir. 2023) (quoting United States v. Melgen, 967 F.3d 1250, 1264 (11th Cir. 2020)): Reinforced abuse-of-discretion review for overall sentence reasonableness.

2. Second Amendment / § 922(g)(1)

  • New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022): Provided Cherry’s principal argument that modern Second Amendment doctrine undermines felon-disarmament laws. The panel did not reach the merits under Bruen’s “history and tradition” methodology because binding circuit precedent controlled.
  • United States v. Rahimi, 602 U.S. 680 (2024): Cited as another modern Second Amendment case; the court treated it (like Bruen) as not abrogating Eleventh Circuit precedent regarding felon-in-possession statutes.
  • United States v. Rozier, 598 F.3d 768, 770-71 (11th Cir. 2010): The controlling Eleventh Circuit decision holding restrictions on firearm possession by felons under § 922(g)(1) are constitutional. Rozier served as the dispositive authority foreclosing Cherry’s constitutional challenge.
  • United States v. Dubois, 139 F.4th 887, 889 (11th Cir. 2025), cert. denied, 223 L. Ed. 2d 570 (2026): The key “bridge” precedent confirming that neither Bruen nor Rahimi abrogated Rozier, thereby cementing Rozier’s continued force.
  • United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008): Supplied the prior-panel-precedent rule: a later panel is bound unless the Supreme Court or the Eleventh Circuit sitting en banc overrules or abrogates the earlier decision. Archer explains why Cherry could not obtain relief absent abrogation.

3. Strict-liability stolen-firearm enhancement

  • United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993): Held § 2K2.1(b)(4) “unambiguously imposes no mens rea requirement,” and that this does not offend due process. This foreclosed Cherry’s argument that knowledge of stolen status is required (or constitutionally necessary).
  • Kisor v. Wilkie, 588 U.S. 558 (2019) and United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023): Invoked by Cherry to argue that interpretive approaches to text/commentary had shifted. The panel rejected the invitation to revisit Richardson because intervening doctrine did not undermine it.
  • United States v. Dubois, 94 F.4th 1284, 1301 (11th Cir. 2024), cert. granted, judgment vacated sub nom., Dubois v. United States, 145 S. Ct. 1041 (2025), reinstated, 139 F.4th 887, 889 (11th Cir. 2025): Served as the controlling authority that Richardson’s “no mens rea” holding rested on the guideline’s text, not commentary, so Kisor and Dupree (which constrain deference to commentary/agency interpretations) do not undermine Richardson.

4. Harmless error via “alternative sentence” and substantive reasonableness

  • United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006): The central sentencing precedent applied. If the district court states it would impose the same sentence regardless of the disputed Guidelines issue, the court of appeals may bypass the Guidelines question and instead review whether the “fallback” sentence under § 3553(a) is reasonable.
  • United States v. Grushko, 50 F.4th 1, 18 (11th Cir. 2022): Clarified the two-part approach: (1) explicit same-sentence statement; (2) substantive reasonableness of the sentence.
  • United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc): Provided the “sufficient, but not greater than necessary” framing for § 3553(a) sentencing.
  • United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009): Confirmed courts may weight one § 3553(a) factor more than others and, importantly, supplied an analogy endorsing a statutory-maximum sentence for § 922(g)(1) based on recidivism, even with a large upward variance.
  • United States v. Henry, 1 F.4th 1315, 1319 (11th Cir. 2021), United States v. Rodriguez, 75 F.4th 1231, 1242 (11th Cir. 2023), and United States v. Johnson, 803 F.3d 610, 618-19 (11th Cir. 2015): Collectively emphasized the deferential abuse-of-discretion standard and that even substantial variances are affirmed unless the sentencing court committed a clear error of judgment in weighing § 3553(a).
  • United States v. Riley, 995 F.3d 1272, 1279-80 (11th Cir. 2021) (quoting United States v. Lyons, 403 F.3d 1248, 1256-57 (11th Cir. 2005)): Supported the district court’s emphasis on criminal history and recidivism as a legitimate justification for a higher sentence.

B. Legal Reasoning

1. The Second Amendment challenge failed because prior panel precedent remained binding

Cherry’s constitutional theory relied on the notion that Bruen and Rahimi reshaped Second Amendment analysis in a way that invalidates § 922(g)(1) at least as applied to non-violent or formerly convicted felons. The panel’s reasoning was institutional: it applied the Eleventh Circuit’s prior-panel-precedent rule from United States v. Archer. Because United States v. Dubois, 139 F.4th 887 held Bruen and Rahimi did not abrogate United States v. Rozier, Rozier controlled and foreclosed relief. The panel further noted the plain-error posture (United States v. Wright), making relief even more difficult in the absence of clear, controlling authority establishing error.

2. The stolen-firearm enhancement remained strict-liability, and due process did not require knowledge

Cherry objected that it was unfair (and unconstitutional) to enhance his sentence for possessing a stolen firearm absent proof that he knew the firearm was stolen. The panel treated this as a settled question under United States v. Richardson, which held § 2K2.1(b)(4) contains no mens rea requirement and that the lack of mens rea does not violate due process.

Cherry’s attempt to leverage Kisor v. Wilkie and United States v. Dupree was rejected by reference to United States v. Dubois, 94 F.4th 1284, which explained that Richardson’s holding was rooted in the guideline’s text (not commentary). This matters because Kisor and Dupree constrain deference to interpretive commentary; if the result comes directly from unambiguous text, there is no interpretive “deference” issue to re-open.

3. The acquitted-conduct enhancement issue was bypassed under Keene harmless-error doctrine

Cherry challenged the four-level enhancement under § 2K2.1(b)(6)(B), arguing the district court relied on acquitted conduct, allegedly contrary to U.S.S.G. § 1B1.3(c) and the Fifth and Sixth Amendments. The panel did not decide the merits. Instead, it applied United States v. Keene and United States v. Grushko: the district court stated on the record it would impose the same 120-month sentence “regardless” of the Guidelines rulings. Therefore, the only remaining question was whether the sentence was substantively reasonable under § 3553(a).

Assuming arguendo the enhancement was error, the panel treated the hypothetical Guidelines range as 77 to 96 months. It then upheld the upward variance to 120 months as reasonable because the district court emphasized (i) the nature/circumstances—possession of a firearm by a prohibited person and escalation via flight—and (ii) Cherry’s “long and significant” criminal history, including drug, theft, and obstruction offenses. Under United States v. Johnson, the court found no “definite and firm conviction” of a clear error of judgment. Under United States v. Riley and United States v. Lyons, reliance on recidivism and prior failure of deterrence was treated as a classic and permissible sentencing rationale.

C. Impact

  • Second Amendment litigation in the Eleventh Circuit: The decision reinforces that district courts and panels remain bound by United States v. Rozier unless and until it is overruled en banc or abrogated by the Supreme Court—despite continuing national litigation over the scope of Bruen. The practical effect is that § 922(g)(1) challenges will continue to fail in the circuit on stare decisis grounds.
  • Stolen-firearm enhancement remains strict-liability: By reasserting United States v. Richardson (through United States v. Dubois, 94 F.4th 1284), the panel confirms that arguments rooted in Kisor/Dupree will not unsettle text-based guideline interpretations that do not depend on commentary. Defendants should expect § 2K2.1(b)(4)(A) to apply irrespective of knowledge.
  • Guidelines disputes and “alternative sentence” insulation: The most operationally important component is the application of United States v. Keene: when a district judge clearly announces an identical fallback sentence under § 3553(a), appellate courts may avoid resolving contested Guidelines questions (including contentious acquitted-conduct disputes) so long as the ultimate sentence is reasonable. For practitioners, this increases the importance of (a) challenging the adequacy and specificity of the alternative-sentence explanation, and (b) building a robust substantive-reasonableness record.

IV. Complex Concepts Simplified

  • Plain error: A demanding appellate standard used when an argument was not raised in the trial court. The appellant must show a clear legal error that affected substantial rights and seriously affected the fairness/integrity of proceedings.
  • Abrogation (of precedent): A higher court decision must be so inconsistent with an earlier circuit decision that the earlier decision can no longer stand. Mere tension is not enough under the Eleventh Circuit’s prior-panel-precedent rule (explained in United States v. Archer).
  • ACCA (Armed Career Criminal Act): A statute that can sharply increase penalties for certain firearm offenders with qualifying prior convictions. Cherry’s original ACCA sentence was vacated in United States v. Cherry, 2025 WL 400724.
  • Guidelines “enhancement”: A rules-based increase to the advisory sentencing range based on specific facts (e.g., the gun was stolen). Enhancements affect the advisory range but do not bind the judge if the judge reasonably varies under § 3553(a).
  • Strict liability (no mens rea): A rule that applies regardless of the defendant’s knowledge or intent. Under United States v. Richardson, the stolen-firearm enhancement does not require proof that the defendant knew the gun was stolen.
  • Harmless error via alternative sentence (Keene): Even if the judge miscalculated the Guidelines, the error does not require reversal if the judge clearly states the same sentence would be imposed anyway under § 3553(a) and that sentence is reasonable.
  • Substantive reasonableness: A deferential review asking whether the sentence falls within the range of reasonable outcomes given the § 3553(a) factors (history, deterrence, seriousness, respect for law, etc.), not whether it was the “best” sentence.

V. Conclusion

United States v. Aunyis Cherry is a consolidation of three Eleventh Circuit through-lines: (1) § 922(g)(1) remains constitutional in the circuit because United States v. Rozier remains binding after New York State Rifle & Pistol Association, Inc. v. Bruen and United States v. Rahimi, as confirmed by United States v. Dubois, 139 F.4th 887; (2) the stolen-firearm enhancement under § 2K2.1(b)(4)(A) remains strict-liability under United States v. Richardson, unaffected by Kisor v. Wilkie and United States v. Dupree per United States v. Dubois, 94 F.4th 1284; and (3) contested Guidelines issues—including those framed as acquitted-conduct disputes—may be effectively mooted on appeal under United States v. Keene when the district court announces an unequivocal same-sentence fallback and the resulting sentence is substantively reasonable.