NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-2759

_____________

UNITED STATES OF AMERICA

v.

KEENAN GIBSON, 

 Appellant

_____________________________________

On Appeal from the United States District Court for the 

District of Delaware

(District Court No. 1:16-cr-00046-001)

District Court Judge: Richard G. Andrews

_____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 7, 2022

(Filed: June 21, 2022)

Before: AMBRO, RENDELL, and FUENTES, Circuit Judges.

_________

O P I N I O N*

_________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

RENDELL, Circuit Judge.

Keenan Gibson appeals his conviction and sentence for possession of a firearm by 

a felon in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), possession of heroin with 

the intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C), and 

possession of a firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. 

§ 924(c)(1)(A)(i). He raises two claims of error related to the evidence presented at 

trial—the District Court erred in (1) concluding that a defense witness, Andre Strother, 

could assert the Fifth Amendment privilege against self-incrimination, and (2) permitting 

the Government to introduce certain testimony from police officers involved in Gibson’s 

arrest—and a third concerning his sentencing—(3) the District Court misapprehended its 

discretion when fashioning his sentences for his first two counts. Because we discern no 

error in the District Court’s evidentiary rulings, we will affirm Gibson’s conviction. We, 

however, will not affirm his sentence. On the record before us, we cannot conclude 

whether the District Court erred during sentencing, so we will vacate his sentence and 

remand for resentencing.

I.

In March 2016, the Wilmington Police Department deployed its Crisis 

Management Tactical Team (the “Team”) to execute a search warrant at 2211 North 

Washington Street in Wilmington, Delaware. During the search, officers encountered 

Gibson, the only person in the apartment, and found a Ruger firearm and drugs, among 

other things, in the apartment. Gibson was arrested and, several weeks later, indicted by 

a federal grand jury on three counts: (1) possession of a firearm by a felon in violation of 
3

18 U.S.C. § 922(g)(1) and § 924(a)(2); (2) possession of a controlled substance with the 

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(c); and 

(3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 

U.S.C. § 924(c)(1)(A)(i).

1

 

The District Court conducted Gibson’s initial trial a few years later. During the 

trial, the jury heard, among other things, evidence that another individual, Andre Strother, 

purchased the Ruger recovered by the police, this firearm was not reported stolen, and it 

was possible Strother still owned and possessed this firearm. The jury ultimately could 

not reach a verdict, so the District Court declared a mistrial and scheduled a second trial 

in June 2019.

Before the second trial, agents from the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (“ATF”) interviewed Strother about his purchase and possession of the Ruger 

firearm. Strother admitted that he (1) purchased the firearm, (2) used drugs when he

purchased it although he did not use drugs at the time of the search, (3) had bought drugs 

from Gibson at some point in the past, and (4) had been staying at Gibson’s apartment 

near the time of the search. The Government disclosed the report memorializing this 

interview to Gibson, and, before the second trial, at Gibson’s request, Strother was served 

a subpoena to appear and testify.

1 The Government superseded the indictment in May 2019 without materially changing 

the charges.
4

The day after the second trial began, Strother informed the District Court that he 

intended to assert his Fifth Amendment privilege in response to questions about either his 

drug use or his ownership of the Ruger firearm. After Gibson challenged whether such 

an assertion would be valid, the District Court permitted Gibson and the Government to 

examine Strother outside the presence of the jury. During this examination, Strother 

declined to answer most questions, invoking the privilege against self-incrimination. The 

District Court determined that Strother validly invoked the privilege when questioned 

about his drug use and the firearm. Because Strother could not offer any relevant 

testimony outside of these two topics, the Court excused him from testifying.

Gibson’s second trial proceeded in two phases. During this first phase, which 

concerned his counts for possession of heroin with the intent to distribute and possession 

of a firearm in furtherance of a drug trafficking crime, the jury, among other things heard 

testimony from officers explaining the execution of the search warrant at Gibson’s 

residence, including the use of the Team. The jury found Gibson guilty of both counts. 

The District Court then conducted the second phase, which pertained to the count for 

possession of a firearm by a felon. The jury found Gibson guilty of this count as well.

The District Court later sentenced Gibson. He requested that the Court impose 

two concurrent one-day sentences for his two counts of possession of a firearm by a felon 

and possession of heroin with intent to distribute and a consecutive five-year mandatory 

minimum sentence under 18 U.S.C. § 924(c)(1)(A)(i) for possession of a firearm in 

furtherance of a drug trafficking crime. The District Court declined to grant this 

requested variance. It sentenced Gibson to two concurrent 51-month terms of 
5

imprisonment for his first two counts and one consecutive 60-month term of 

imprisonment for his third count, but it noted that it would have sentenced Gibson to a 

shorter term of imprisonment if the 60-month consecutive sentence was not required by 

statute.

Gibson timely appealed his conviction and sentence.

II.2

A. Strother’s Invocation of the Fifth Amendment Privilege Against Self-Incrimination

We review the District Court’s application of the Fifth Amendment privilege 

against self-incrimination de novo. United States v. Chabot, 793 F.3d 338, 342 (3d Cir. 

2015). The Fifth Amendment privilege protects individuals when “compelled to produce 

self-incriminating, testimonial communication[s].” Id. (alteration in original) (internal 

quotation marks and citation omitted). It covers “more than just [giving] evidence which 

may lead to [a] criminal conviction[;] [its protections] extend[] to information which 

would furnish a link in the chain of evidence that could lead to a prosecution, as well as 

evidence which an individual reasonably believes could be used against him in a criminal 

prosecution.” United States v. Morton, 993 F.3d 198, 203 (3d Cir. 2021) (internal 

quotation marks and citations omitted). Once a witness “makes a prima facie invocation 

of the privilege,” a court will force the witness to testify only if it is “perfectly clear from 

careful consideration of all the circumstances in the case that the witness is mistaken, and 

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
6

that the answer[s] cannot possibly have such tendency to incriminate.” Id. (emphasis in 

original) (internal quotation marks and citations omitted).

Gibson contends that the District Court erred in determining that Andre Strother, a 

potential defense witness, could assert the Fifth Amendment privilege against selfincrimination to avoid testifying. He largely argues that, as Strother’s potential testimony 

would not have been incriminating, Strother had no basis to invoke the privilege. We 

disagree. 

As the District Court recognized, Strother worried about possible prosecution for 

possession of a firearm by a narcotics user in violation of 18 U.S.C. § 922(g)(3). Two of 

this crime’s elements are relevant here: the defendant (1) uses or is addicted to an illegal 

narcotic and (2) “thereafter knowingly possessed a firearm[.]” United States v. 

Cheeseman, 600 F.3d 270, 281 (3d Cir. 2010). Accordingly, if Strother’s testimony 

could tend to show that he used drugs or that he knowingly possessed a firearm and 

thereby “possibly tend to incriminate” him, then the District Court properly refrained 

from compelling him to testify. In re Flat Glass Antitrust Litig., 385 F.3d 350, 371 (3d 

Cir. 2004).

Gibson submits that Strother would have testified “as to what happened as far as 

[his] bringing the gun into [the] house [where it was recovered], and where he left it, and 

what he did afterwards to try to recover it[.]” Appellant’s Opening Br. 16 (alterations in 

original) (quoting App. 219). Testimony along these lines could have incriminated 

Strother because it would tend to show that he knowingly possessed a firearm, the Ruger 

found in Gibson’s apartment. Moreover, had Strother testified as proffered, the 
7

Government’s cross-examination could have elicited further incriminating testimony 

concerning whether he purchased ammunition and accessories for the Ruger.

Any testimony that suggested Strother used drugs would have been similarly 

incriminating. Gibson insists that Strother would face limited questions about his past 

drug use because these matters would have been collateral and therefore inadmissible. 

Not so. Evidence that tended to connect Gibson to drugs or drug dealing at the time of 

his arrest would have been relevant to his prosecution for drug-trafficking crimes. See 

Fed. R. Evid. 401; United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006) (setting out 

the elements of a violation of 18 U.S.C. § 924(c)(1)(A)); United States v. Lacy, 446 F.3d 

448, 454 (3d Cir. 2006) (listing the elements of a violation of 21 U.S.C. § 841(a)(1)). 

Had Strother testified that he went to Gibson’s apartment and left the Ruger firearm 

there, the Government had a good-faith basis to ask Strother why he was in the 

apartment, why he brought the gun, and whether his presence in the apartment was 

related to drugs.

Even without these questions, the Government could have asked Strother about his 

drug use as impeachment evidence as it pertained to his perception of the events about 

which he would have testified. Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 

1987). Gibson contends that such questions could not incriminate Strother because 

Strother had denied using drugs at that time in his ATF interview. But his argument 

misses the point. When a witness invokes the privilege, the trial court must focus on the 

responses the posed questions could elicit rather than what the witness’s past comments 

suggest he might say. See Hoffmann v. United States, 341 U.S. 479, 486-87 (1951) (“To 
8

sustain the privilege, it need only be evident from the implications of the question, in the 

setting in which it is asked, that a responsive answer to the question or an explanation of 

why it cannot be answered might be dangerous because injurious disclosure could 

result.”). Even though a denial in response to whether Strother used drugs when he left 

the Ruger at Gibson’s apartment would not incriminate him, an admission would. 

In short, no matter what Gibson expected Strother to say, the Government could 

have elicited potentially incriminating testimony from Strother had he testified. Thus, the 

District Court did not err in upholding Strother’s assertion of the privilege against selfincrimination.

B. Testimony Concerning the Execution of the Search Warrant

Next, Gibson claims that the District Court erred by allowing the Government to 

elicit testimony that “effectively told the jury that Mr. Gibson had a prior felony 

conviction, and moreover, left the impression that Mr. Gibson was a violent person who 

possessed weapons.” Appellant’s Opening Br. 32-33. He objects to the testimony of 

three police officers—Officer Dolinger, Officer Barnes, and Detective Wilkers—

concerning the execution of the search warrant at Gibson’s apartment, in particular the 

Wilmington Police Department’s deployment of the Team. Ordinarily, we review a 

district court’s decision to admit or exclude evidence for abuse of discretion. United 

States v. Desu, 23 F.4th 224, 233 (3d Cir. 2022). Yet, because Gibson did not object to 

the challenged testimony during his trial, we review for plain error. United States v. 

Christie, 624 F.3d 558, 567 (3d Cir. 2010). “Plain error exists when an error is clear at 
9

the time it was made and it affected the defendant’s substantial rights.” United States v. 

Seighman, 966 F.3d 237, 240 (3d Cir. 2020).

Here, the District Court committed no such error. In general “relevant 

evidence . . . is admissible unless the [Federal Rules of Evidence] provide otherwise.” 

Huddleston v. United States, 485 U.S. 681, 687 (1988). Under Federal Rule of Evidence

403, “[d]istrict courts may exclude [relevant] evidence ‘if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice.’” United States v. 

Heatherly, 985 F.3d 254, 265 (3d Cir. 2021) (third alteration in original) (quoting Fed. R. 

Evid. 403). The challenged testimony about the execution of the search warrant was 

relevant and had probative value. See United States v. Lacerda, 958 F.3d 196, 208 (3d 

Cir. 2020) (noting than “an officer who is familiar with an investigation or was 

personally involved may tell the story of that investigation—how the investigation began, 

who was involved, and what techniques were used”). So the District Court erred only if

the officers’ testimony was substantially more unfairly prejudicial than it was probative. 

It was not. 

True, the challenged testimony presented a risk of unfair prejudice to Gibson to

the extent that it could lead the jury to convict Gibson because he was a convicted felon 

and violent. See Old Chief v. United States, 519 U.S. 172, 180 (1997). Even so, this risk 

was too remote to outweigh the testimony’s probative value. For example, take Officer 

Dolinger’s testimony, the testimony Gibson views as the most unfairly prejudicial. 

Officer Dolinger testified that he helped execute the warrant as a member of the Team, 

and that the Team generally executes “high-risk warrants [for] subjects that have had 
10

felonies, or may have committed a felony crime, or involving weapons, hostage 

situations, things like that.” App. 241-42. While the jurors could theoretically infer from 

this testimony that the Team executed the search warrant because Gibson had been 

convicted of a felony in the past, few, if any, were likely to do so, as it would require 

them to ignore an alternative explanation supported by facts they already knew: the Team 

executed the warrant because Gibson was charged with a felony that involved a weapon. 

Because this testimony as well as the remaining challenged testimony presented a limited 

risk of unfair prejudice, we cannot conclude that the District Court committed plain error 

by failing to exclude it.

C. The District Court’s Appreciation of Its Sentencing Discretion

With respect to his sentence, Gibson raises only one issue on appeal: whether the 

District Court mistakenly believed that it was required to fashion a sentence for his two 

18 U.S.C. § 924(c) predicate offenses—possession of a firearm by a felon and possession 

of heroin with intent to distribute—without considering the mandatory consecutive term 

of imprisonment he would receive for possession of a firearm in furtherance of a drug 

trafficking crime under 18 U.S.C. § 924(c)(1)(A). On appeal, we consider only if the 

sentence imposed is “reasonable.” Gall v. United States, 552 U.S. 38, 46 (2007). We 

conduct this review in “two stages,” focusing first on procedural reasonableness and then 

on substantive reasonableness. United States v. Handerhan, 739 F.3d 114, 119 (3d Cir. 

2014); United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). If we detect a 

procedural error during the first stage, we end our review and “remand the case for re-
11

sentencing.” Merced, 603 F.3d at 214. Here, we review a claim of procedural error.3 

See United States v. Blewitt, 920 F.3d 118, 121-22 (1st Cir. 2019).

In Dean v. United States, 137 S. Ct. 1170 (2017), the Supreme Court addressed 

district courts’ discretion in crafting sentences for section 924(c) predicate offenses. It 

held that a district court may “consider a sentence imposed under § 924(c) when 

calculating a just sentence for the predicate count,” observing that the statute does not 

“prevent a district court from imposing a 30-year mandatory minimum sentence under [it] 

and a one-day sentence for the predicate violent or drug trafficking crime, provided those 

terms run one after the other.” Id. at 1176-77. That said, it did not hold that a district 

court must consider the mandatory minimum sentence when imposing a sentence for 

section 924(c) predicate offenses, only that it may do so. See United States v. PadillaGalarza, 990 F.3d 60, 88 (1st Cir. 2021).

Following Dean, courts have recognized that a district court errs if it believes it 

has no discretion to consider the section 924(c) mandatory minimum sentence when 

fashioning sentences for the defendant’s predicate offenses. See, e.g., Blewitt, 920 F.3d 

at 122-23; United States v. Gomez, 905 F.3d 347, 355 (5th Cir. 2018). Gibson contends 

that the District Court committed this error during sentencing. The transcript provides 

3 The parties dispute whether we should review for plain error. Although we ordinarily 

review for plain error where, as here, the defendant fails to object to the alleged 

procedural error at sentencing, United States v. Aguirre-Miron, 988 F.3d 683, 688 (3d 

Cir. 2021), we find that Gibson’s request for a variance preserved his claim of error for 

appeal, United States v. Brown, 935 F.3d 43, 46-47 (2d Cir. 2019). We therefore will 

review the District Court’s sentencing for abuse of discretion. Handerhan, 739 F.3d at 

119.
12

some support for his claim. In particular, when determining his sentence, the District 

Court stated:

So that’s all to say that’s the reason why the guidelines 

suggest sending you to prison for about four to five years. 

And I say that the guidelines suggest because I think the way

that I’m supposed to be looking at your sentence is to figure 

out what the sentence should be for Counts 1 and 2, not 

taking into account the fact that I have to add on five years 

for Count 3. That’s my understanding of what the Court of 

Appeals has said district judges are supposed to do. So 

looking at it like that, you know, your offense deserves a 

sentence somewhere in that range.

App. 900 (emphasis added). Although it declined to grant a downward variance, it 

explained to Gibson:

I am going to take the government’s recommendation that the 

appropriate place in the range is 51 months. And you know, 

I’m going to have to sentence you to the 60 months to follow. 

I’m not particularly sure that if there wasn’t the minimum or, 

in fact, I’m pretty sure that if there wasn’t the minimum 

mandatory, I’d give you less time. But there is, and the law 

tells me I have no choice.

App. 902 (emphasis added).

Though Gibson contends these excerpts reveal that the District Court did not 

believe that it had discretion to consider his five-year mandatory minimum sentence for 

his third count when fashioning sentences for his first two counts, we are not so sure. 

When the District Court explained that it believed it could not take the mandatory 

minimum sentence for Count 3 into account, it may have been discussing how the 

Guidelines range is calculated for Counts 1 and 2, not how it was determining the 

sentences for those counts. See Blewitt, 920 F.3d at 123 n.3 (describing “the usual praxis 
13

with respect to grouped counts” as “calculating the [Guidelines range] and then applying 

the sentencing factors delineated in 18 U.S.C. § 3553(a)”).

Even so, we cannot determine whether the District Court misapprehended its 

discretion. Although we normally assume that the sentencing court “understands all the 

available sentencing options,” we hesitate to do so “where the [court’s] sentencing 

remarks create ambiguity as to whether [it] correctly understood an available sentencing 

option.” United States v. Preacely, 628 F.3d 72, 80 (2d Cir. 2010). In such 

circumstances, we may elect to remand for clarification or vacate the sentence and 

remand for resentencing. Brown, 935 F.3d at 47-49. We believe the case before us calls 

for the latter path, so we will vacate Gibson’s sentence and remand for resentencing.

4

 

See id. at 49 (electing to vacate the District Court’s sentence and remand for resentencing 

in light of the uncertainty regarding its understanding of Dean).

III.

For these reasons, we affirm Gibson’s conviction yet vacate the District Court’s

sentence and remand for further proceedings consistent with this opinion.

4 The District Court may reimpose its original sentence if it, in fact, understood and 

considered its discretion under Dean when imposing this sentence. Gibson, of course, 

would have the right to appeal his new sentence if he believes the Court nevertheless 

erred during resentencing.