United States v. Frank Marrupe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 8, 2026
• Docket: 23-11748
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 23-11748 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

FRANK MARRUPE, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cr-20490-KMM-1 ____________________

Before BRANCH, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Frank Marrupe appeals his 63-month sentence for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that (1) § 922(g)(1) violates his Second Amendment right USCA11 Case: 23-11748 Document: 44-1 Date Filed: 07/08/2026 Page: 2 of 6

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to keep and bear arms, and (2) the district court erred by imposing his sentence to run consecutively to his state court sentence for the same conduct without considering § 5G1.3 of the United States Sentencing Guidelines and without explaining why it did not im- pose the sentence to run concurrently as provided in the guideline. We affirm Marrupe’s conviction, but we vacate his sentence and remand for resentencing. I. In September 2022, Marrupe was arrested and charged in Miami-Dade County Circuit Court with possessing a firearm as a felon and openly carrying a weapon, both in violation of Florida law. He was later indicted in federal court for violating § 922(g)(1) based on the same conduct underlying his state charge. He entered a guilty plea to the federal charge and was sentenced to 63 months in prison, followed by three years of supervised release. The dis- trict court imposed his sentence to run consecutively to the sen- tence to be imposed for the state firearm charges. Marrupe now appeals. II. We review the constitutionality of a statute de novo. United States v. Fleury, 20 F.4th 1353, 1362 (11th Cir. 2021). “We review sentencing arguments raised for the first time on appeal for plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). USCA11 Case: 23-11748 Document: 44-1 Date Filed: 07/08/2026 Page: 3 of 6

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III. A. Marrupe first argues that we should vacate his conviction because § 922(g)(1) violates the Second Amendment under New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024). This argument is foreclosed by our precedents. In United States v. Rozier, we rejected a Second Amendment challenge to § 922(g)(1), noting that “the right secured by the Sec- ond Amendment is not unlimited,” and § 922(g)(1) represented a “presumptively lawful longstanding prohibition” on the possession of firearms by felons. 598 F.3d 768, 770–71 (11th Cir. 2010) (quota- tions omitted). And in United States v. Dubois, we reaffirmed our decision in Rozier and explained that neither Bruen nor Rahimi ab- rogated our holding that § 922(g)(1) does not violate the Second Amendment. 139 F.4th 887, 889, 891–93 (11th Cir. 2025), cert. de- nied, 223 L. Ed. 2d 570 (Jan. 20, 2026). We remain bound by Rozier, so we reject Marrupe’s Second Amendment challenge to his § 922(g)(1) conviction. See id. at 892– 93. B. Next, Marrupe argues that the district court erred by impos- ing his federal sentence to run consecutively to his state sentence, contrary to § 5G1.3 of the United States Sentencing Guidelines and without explaining the resulting significant departure from the USCA11 Case: 23-11748 Document: 44-1 Date Filed: 07/08/2026 Page: 4 of 6

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Guidelines sentence. At sentencing, Marrupe requested that the district court “recommend” that his sentence run concurrently with the anticipated state sentence for the same conduct, but he did not mention § 5G1.3 or suggest to the court that a consecutive sen- tence deviated from the Guidelines. Because he did not bring to the sentencing court’s attention the specific grounds on which he now seeks appellate relief, our review is for plain error only. United States v. Thomas, 108 F.4th 1351, 1355 (11th Cir. 2024). We will grant relief for plain error only if we conclude that the district court (1) committed an error (2) that was plain or obvious and (3) af- fected the defendant’s substantial rights, and (4) the error “seriously affects the fairness, integrity, or public reputation of judicial pro- ceedings.” Id. at 1355–56. The United States Sentencing Guidelines provide that when a defendant is expected to receive a term of imprisonment for a state offense that was part of the same course of conduct as his fed- eral offense, the federal sentence “shall be imposed to run concur- rently to the anticipated term of imprisonment” for the state of- fense. U.S.S.G. § 5G1.3(c); see id. § 1B1.3(a)(2). Section 5G1.3, like the rest of the Guidelines, is only advisory. United States v. Henry, 1 F.4th 1315, 1322 (11th Cir. 2021). Still, “a district court should begin all sentencing proceed- ings by correctly calculating the applicable Guidelines range,” and it should use the Guidelines as “the starting point and the initial benchmark” when calculating its sentence. Peugh v. United States, 569 U.S. 530, 536 (2013) (quotations omitted). If the court decides USCA11 Case: 23-11748 Document: 44-1 Date Filed: 07/08/2026 Page: 5 of 6

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that a variation from the Guidelines is appropriate, it “must con- sider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall v. United States, 552 U.S. 38, 50 (2007). And it “must adequately explain the chosen sentence to allow for meaningful appellate re- view and to promote the perception of fair sentencing.” Id. Here, the district court committed plain error by failing to take § 5G1.3 into account when calculating Marrupe’s Guidelines sentence, and by failing to explain its significant upward variance from the Guidelines when it ordered his federal sentence to run consecutively to the anticipated state sentence for the same con- duct. See id. at 51 (district court commits “significant procedural error” if it fails to calculate or improperly calculates the Guidelines sentence, or if it fails to adequately explain any deviation from the Guidelines range). This error affected Marrupe’s substantial rights because running his 63-month federal sentence consecutively to what turned out to be a four-year state sentence significantly in- creased his term of incarceration. See Molina-Martinez v. United States, 578 U.S. 189, 200 (2016) (in most cases a district court’s ap- plication of an incorrect, higher Guidelines range is an error affect- ing a defendant’s substantial rights). And in the context of a plain Guidelines error, the “risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings.” Rosales-Mireles v. United States, 585 U.S. 129, 140 (2018). USCA11 Case: 23-11748 Document: 44-1 Date Filed: 07/08/2026 Page: 6 of 6

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IV. We affirm Marrupe’s conviction under 18 U.S.C. § 922(g)(1). But we vacate his sentence and remand for resentencing after con- sideration of U.S.S.G. § 5G1.3(c) and the other relevant guidelines and sentencing factors. AFFIRMED IN PART, VACATED AND REMANDED IN PART.