Ex Post Facto Bar to Applying Amendment 822’s Career-Offender Reclassification of Hobbs Act Robbery to Pre‑Amendment Conduct; Post‑Smith Plain-Error Limits on “Surrogate” Forensic Testimony

I. Introduction

In United States v. Rodney Leroy Brown (11th Cir. 2026-09-09), the Eleventh Circuit reviewed Rodney Brown’s convictions for Hobbs Act robbery (18 U.S.C. § 1951(a)) and brandishing a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)), and his 324-month sentence imposed by the Southern District of Florida.

Two issues were raised for the first time on appeal, triggering plain-error review:

  1. Confrontation Clause: whether admitting testimony from a DNA analyst who did not perform the “hands-on” testing (and did not author the report) violated the Sixth Amendment.
  2. Ex Post Facto Clause: whether using a later Guidelines Manual (reflecting a change that increased Brown’s advisory range via the career-offender rule) unlawfully increased punishment compared to the Manual in effect when the offense occurred.

II. Summary of the Opinion

The Eleventh Circuit affirmed the convictions but vacated the sentence and remanded for resentencing.

  • Confrontation Clause: No plain error in allowing the DNA expert (Aguilar) to testify because he conducted his own comparison analysis of DNA profiles and testified largely in general terms about lab procedures, distinguishing the “surrogate” testimony problem addressed in Smith v. Arizona.
  • Ex Post Facto: Plain error occurred when the district court used the 2023 Guidelines Manual incorporating Amendment 822 to treat Hobbs Act robbery as a “crime of violence” for the career-offender enhancement, even though the offense occurred in March 2023 (pre-amendment), and prior binding precedent held otherwise. The court ordered resentencing using the 2021 Guidelines Manual.

III. Analysis

A. Precedents Cited

1. Plain-error framework: United States v. Alfonso

Because Brown did not object at trial or sentencing, the court applied the four-part plain-error rubric stated in United States v. Alfonso: (1) error, (2) plainness, (3) effect on substantial rights, and (4) discretionary correction if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. This threshold shaped both issues—especially the Confrontation Clause claim, where the absence of “directly resolving” precedent was decisive.

2. The Confrontation Clause’s target: Crawford v. Washington

Relying on Crawford v. Washington, the panel emphasized that the “primary object” of confrontation is testimonial hearsay. If statements are testimonial and offered for their truth, they are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine. This framework is the foundation for modern forensic-report confrontation disputes.

3. Forensic reports as testimonial hearsay: Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico

The opinion treated Melendez-Diaz v. Massachusetts as establishing that forensic “certificates of analysis” prepared for prosecution are testimonial, and their admission without cross-examining the certifying analyst violates the Sixth Amendment.

Bullcoming v. New Mexico extended that logic to reject “surrogate testimony” where the testifying analyst neither signed the certification nor performed/observed the test. Bullcoming’s core concern—an in-court witness who cannot be examined about what actually happened in the lab for that specific sample—set the stage for evaluating whether Aguilar functioned as a surrogate for absent technicians or the report writer.

4. Intervening authority and “plainness”: United States v. Jones and Griffith v. Kentucky

Brown relied heavily on Smith v. Arizona, decided after his trial. The panel acknowledged, via United States v. Jones, that an “intervening decision” “squarely on point” can make an error plain, and via Griffith v. Kentucky that new rules apply to cases pending on direct review. Thus, Smith was fair game for the plain-error inquiry.

5. Post-Smith boundary line: Smith v. Arizona

The panel read Smith v. Arizona to hold that when an expert conveys an absent analyst’s statements to support an opinion—and the statements support the opinion only if true—those statements are introduced for their truth (i.e., hearsay), triggering Confrontation Clause scrutiny if testimonial.

Crucially, the opinion also relied on Smith’s “safe harbors”: a testifying expert may (a) speak from personal knowledge about how the lab “typically functioned,” (b) testify generally about forensic guidelines and accreditation, or (c) answer hypotheticals that assume an out-of-court statement is true—without becoming a conduit for case-specific assertions made by an absent analyst.

6. No plain error absent directly controlling precedent: United States v. Hesser

The court invoked United States v. Hesser for the proposition that there is no plain error where neither the Supreme Court nor the Eleventh Circuit has directly resolved the issue. This principle was dispositive in rejecting Brown’s broader contention that confrontation requires live testimony from each lab participant involved in generating a DNA profile.

7. Ex Post Facto at sentencing: United States v. Elbeblawy and United States v. Eason

On sentencing, United States v. Elbeblawy supplied the governing rule: although courts typically apply the Guidelines in effect at sentencing, the Ex Post Facto Clause forbids use of a later Guidelines version that increases the sentencing range compared to the version in effect at the time of the offense.

United States v. Eason provided the key historical baseline: before Amendment 822, Eleventh Circuit precedent held that Hobbs Act robbery did not qualify as a “crime of violence” for purposes of the career-offender enhancement. Amendment 822 (effective Nov. 1, 2023) changed that classification, but Brown’s March 2023 offense date meant the change could not be applied to him if it raised his range.

B. Legal Reasoning

1. Why the Confrontation Clause claim failed under plain-error review

The panel distinguished Brown’s case from Smith v. Arizona on two factual/legal axes:

  • Connection to the case and independent analysis: Aguilar was not a stranger offering conclusions based solely on another analyst’s notes. He testified that he “came behind” the primary analyst (Colon), “repeated the same process,” and independently agreed with the findings—meaning his match opinion was presented as his own comparison of DNA profiles, not merely an endorsement of Colon’s conclusions.
  • General-process testimony vs. case-specific relay: Aguilar described, in general terms, how DLI typically processes DNA evidence (extraction, quantitation, amplification, and instrument-based profile visualization) and that work is peer-reviewed. The court characterized this as consistent with the types of general operational testimony Smith said could be offered without violating confrontation—rather than reciting what a non-testifying technician did with this evidence.

The court added an important limitation: it did not decide whether the Confrontation Clause requires cross-examination of every lab worker involved in generating a DNA profile. It held only that, on this record and with existing precedent, any error was not “plain”.

2. Why the Ex Post Facto claim succeeded (and required resentencing)

The sentencing analysis was comparatively straightforward because:

  • The district court applied the 2023 Guidelines Manual, which—via Amendment 822—treated Hobbs Act robbery as a “crime of violence” for career-offender purposes.
  • At the time of the offense (March 2023), United States v. Eason controlled, and Hobbs Act robbery did not qualify for the enhancement.
  • Under United States v. Elbeblawy, using a later Manual that increases the range violates the Ex Post Facto Clause.

Because the career-offender designation elevated Brown’s offense level (and thus his advisory range), the error was plain, affected substantial rights, and warranted correction under the fourth prong of plain-error review. The court directed resentencing under the 2021 Guidelines Manual.

C. Impact

1. Forensic testimony after Smith in the Eleventh Circuit (plain-error posture)

This decision signals how the Eleventh Circuit may operationalize Smith v. Arizona—especially where the defendant did not preserve an objection:

  • The government may reduce confrontation risk by presenting an analyst who performed an independent review/comparison and can credibly testify to their own conclusions, rather than narrating an absent analyst’s case-specific steps and observations.
  • Experts can more safely testify about general lab processes and quality controls, but should avoid becoming a “mouthpiece” for non-testifying technicians’ or report-writers’ case-specific statements (e.g., which specific controls were run on the specific sample, what the absent analyst observed during a particular run, whether contamination was checked in that specific instance).

Doctrinally, the opinion’s restraint (“we take no position on the merits” of requiring every lab participant) preserves room for future preserved challenges that more directly tee up whether specific, case-bound lab-step assertions must come from the person who performed them.

2. Sentencing: Amendment 822 cannot retroactively increase ranges for pre‑Nov. 1, 2023 conduct

The sentencing holding has immediate practical consequences:

  • For defendants whose Hobbs Act robbery conduct predates Amendment 822’s effective date, district courts must check whether applying the current Manual would increase the range relative to the offense-date Manual; if so, Elbeblawy requires using the earlier Manual.
  • The decision reinforces that a Guidelines amendment can create an ex post facto problem even though the Guidelines are “advisory,” because increased advisory ranges can still drive harsher sentences in practice—a premise embedded in Eleventh Circuit ex post facto sentencing doctrine.

IV. Complex Concepts Simplified

  • Confrontation Clause: The Sixth Amendment right to cross-examine “witnesses against” the accused. It is most often triggered by testimonial statements made out of court that the prosecution effectively presents to the jury.
  • Testimonial hearsay (from Crawford): Out-of-court statements made for evidentiary use in prosecution. If testimonial, they generally require the declarant to testify (or be previously cross-examined).
  • Surrogate testimony (from Bullcoming): When a witness testifies about another analyst’s testing and results without having performed/observed the test, preventing meaningful cross-examination about what happened in the lab.
  • What Smith adds: If an expert’s opinion depends on an absent analyst’s statements being true—and the expert conveys those statements—then the jury is hearing them for their truth, raising confrontation problems if the statements are testimonial.
  • Plain error: A demanding appellate standard for unpreserved issues; even a real mistake may not be corrected unless it is clear under current law and prejudicial.
  • Career offender (U.S.S.G. § 4B1.1): A Guidelines status that increases offense level (and often range) for defendants with certain prior convictions if the instant offense qualifies as a “crime of violence” or controlled-substance offense.
  • Ex Post Facto at sentencing: Courts may not apply later sentencing rules (including later Guidelines Manuals) if doing so increases punishment compared to the rules in effect when the crime was committed.

V. Conclusion

United States v. Rodney Leroy Brown delivers a split outcome that is doctrinally instructive. On the trial record and under plain-error review, the Eleventh Circuit declined to extend Smith v. Arizona to deem a peer-reviewing DNA analyst’s testimony plainly unconstitutional where the analyst conducted an independent comparison and largely testified about general lab processes. At sentencing, however, the court enforced the Ex Post Facto Clause as articulated in United States v. Elbeblawy, holding it was plain error to apply the 2023 Guidelines Manual’s Amendment 822 reclassification of Hobbs Act robbery to a defendant whose offense predated the amendment and who would not have been a career offender under United States v. Eason. The result—affirmed convictions, vacated sentence, and remand for resentencing under the 2021 Manual—underscores that preservation matters for confrontation claims, while ex post facto errors in Guidelines selection can compel resentencing even on plain-error review.