# United States v. Benjamin Townsel > Court of Appeals for the Eleventh Circuit · July 31, 2024 URL: https://www.frixlaw.com/law-library/cases/10492601 ## Case - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** July 31, 2024 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Nature of suit:** NEW - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10492601 ## How later opinions describe it (automated extraction) - holding that a defendant who pleaded guilty did not waive his Second Amendment challenge to a statute of conviction when this claim did not “contradict the terms of the indictment or the written plea agreement” ## Opinion text USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 1 of 7 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-13084 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BENJAMIN TYREE TOWNSEL, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:21-cr-00050-JA-PRL-1 ____________________ USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 2 of 7 2 Opinion of the Court 22-13084 Before WILSON, JILL PRYOR, and LUCK, Circuit Judges. PER CURIAM: Benjamin Townsel appeals his convictions for three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of a firearm with an oblit- erated serial number, in violation of 18 U.S.C. § 922(k). Townsel argues that his convictions should be vacated because the statutory prohibitions on the possession of firearms by felons and the posses- sion of firearms with obliterated serial numbers run afoul of the Second Amendment and because Congress lacked authority under the Commerce Clause to prohibit the possession of a firearm simply because the weapon previously moved in interstate com- merce. After careful consideration, we affirm. I. On three separate occasions over several months, Townsel, who is a convicted felon, possessed a firearm. The serial number on one of these firearms was scratched and unreadable. A grand jury charged Townsel with three counts of being a felon in possession of a firearm and one count of possession of a firearm with an oblit- erated serial number. He pleaded guilty. The district court sen- tenced Townsel to a total of 144 months’ imprisonment. This is Townsel’s appeal. USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 3 of 7 22-13084 Opinion of the Court 3 II. Ordinarily, when a defendant enters a valid guilty plea, he waives any non-jurisdictional defects in the proceedings. United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014). But Townsel’s guilty plea did not waive his constitutional challenges to the statu- tory prohibitions on felons possessing firearms or the possession of firearms with obliterated serial numbers. See Class v. United States, 583 U.S. 174, 181 (2018) (holding that a defendant who pleaded guilty did not waive his Second Amendment challenge to a statute of conviction when this claim did not “contradict the terms of the indictment or the written plea agreement”). Although we generally review de novo the constitutionality of a statute, we review for plain error when a defendant raises a constitutional challenge to a statute of conviction for the first time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). To show plain error, a defendant must establish (1) there was error, (2) that was plain, (3) that affected the defendant’s substantial rights, and (4) that seriously affected the fairness, integrity, or pub- lic reputation of judicial proceedings. Id. An error is plain only if it is contrary to a federal statute or on-point precedent from this Court or the United States Supreme Court. United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013). III. On appeal, Townsel challenges the constitutionality of 18 U.S.C. § 922(g)(1), which prohibits individuals with felony con- victions from possessing firearms or ammunition, and 18 U.S.C. USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 4 of 7 4 Opinion of the Court 22-13084 § 922(k), which prohibits anyone from possessing a firearm with a removed, altered, or obliterated serial number. He raises two types of constitutional challenges to each of these statutes. First, he ar- gues that the statutory prohibitions run afoul of the Second Amendment. Second, he says that Congress lacked authority under the Commerce Clause to enact these restrictions. We address each issue in turn. A. We begin with the Second Amendment challenges. Accord- ing to Townsel, § 922(g)(1)’s prohibition on felons possessing fire- arms and § 922(k)’s prohibition on the possession of firearms with obliterated serial numbers violate the Second Amendment, which states that: “A well regulated Militia, being necessary to the secu- rity of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Because Townsel raises his Second Amendment challenges for the first time on ap- peal, we review for plain error only. We conclude that he has not established plain error. We begin our analysis with the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In Heller, the Court considered a Second Amendment challenge to a District of Colum- bia law that barred the private possession of handguns in homes. Id. at 635. After considering the text and history of the Second Amendment, the Court concluded that it conferred on an individ- ual a right to keep and bear arms. Id. at 595. The Court held that the ban on handgun possession in the home violated the Second USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 5 of 7 22-13084 Opinion of the Court 5 Amendment. Id. at 635. But the Court noted that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 626. The Court labeled these prohibitions as “presumptively law- ful.” Id. at 627 n.26. After Heller, we considered a constitutional challenge to § 922(g)(1)’s prohibition on felons possessing firearms. See United States v. Rozier, 598 F.3d 768, 770 (11th Cir. 2010). We rejected this challenge, holding that “statutes disqualifying felons from pos- sessing a firearm under any and all circumstances do not offend the Second Amendment.” Id. at 771. Several years later, the Supreme Court considered a Second Amendment challenge to New York’s gun-licensing regime that limited when a law-abiding citizen could obtain a license to carry a firearm outside the home. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 11 (2022). The Court recognized that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” Id. at 10. It explained that to determine whether a restriction on firearms was constitu- tional, courts must begin by asking whether the firearm regulation at issue governs conduct that falls within the plain text of the Sec- ond Amendment. Id. at 17. If the regulation covers such conduct, a court may uphold it only if the government “affirmatively prove[s] that its firearms regulation is part of the historical tradition that de- limits the outer bounds of the right to keep and bear arms.” Id. at 19. Bruen emphasized that Heller established the correct test for USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 6 of 7 6 Opinion of the Court 22-13084 determining the constitutionality of gun restrictions. See id. at 39. And, like Heller, Bruen described Second Amendment rights as ex- tending only to “law-abiding, responsible citizens.” Id. at 26 (inter- nal quotation marks omitted). After Bruen, we considered another Second Amendment challenge to § 922(g)(1). See United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024). We held that the challenge was foreclosed by Rozier, which “interpreted Heller as limiting the [Second Amend- ment] right to law-abiding and qualified individuals and as clearly excluding felons from those categories by referring to felon-in-pos- session bans as presumptively lawful.” Id. at 1293 (internal quota- tion marks omitted). We observed that in Bruen, the Supreme Court continued to describe the right to bear arms as extending only to “law-abiding, responsible citizens.” Id. (internal quotation marks omitted). Accordingly, we affirmed the defendant’s convic- tion. Id. Based on Bruen, Townsel challenges § 922(g)(1)’s prohibition on felons possessing firearms and § 922(k)’s prohibition on the pos- session of firearms with obliterated serial numbers. He argues that these bans “are not consistent with this country’s historical tradi- tion of firearms regulations.” Appellant’s Br. 7. But Townsel cannot show plain error because he has not identified any on-point prece- dent from this Court or the United States Supreme Court holding that the prohibitions set forth in § 922(g)(1) or § 922(k) violate the Second Amendment. USCA11 Case: 22-13084 Document: 30-1 Date Filed: 07/31/2024 Page: 7 of 7 22-13084 Opinion of the Court 7 B. We now turn to Townsel’s Commerce Clause challenges to § 922(g)(1) and § 922(k). He argues that “Congress’s Commerce Clause powers do not permit it to criminalize the intrastate posses- sion of a firearm simply because it crossed state lines in the past.” Appellant’s Br. 30. Because Townsel raises the Commerce Clause challenges for the first time on appeal, we review for plain error only. We conclude that Townsel failed to establish plain error. He has not identified any on-point precedent from this Court or the United States Supreme Court holding that Congress exceeded its authority under the Commerce Clause when it enacted the prohi- bitions set forth in § 922(g)(1) or § 922(k). Indeed, Townsel acknowledges that his challenges are foreclosed by precedent in which we rejected a similar Commerce Clause challenge. See United States v. Pritchett, 327 F.3d 1183, 1185 (11th Cir. 2003). AFFIRMED. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10492601. Public record. Not legal advice.