United States v. Jonathan Anthony Reid

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10619

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JONATHAN ANTHONY REID,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:20-cr-00084-SPC-NPM-1

____________________

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2 Opinion of the Court 23-10619

Before ROSENBAUM, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

Jonathan Reid appeals his conviction and sentence for pos-

session of a firearm by a convicted felon under 18 U.S.C.

§ 922(g)(1). He raises six arguments that the district court commit-

ted reversible errors at trial, three arguments against his Armed Ca-

reer Criminal Act sentence enhancement, and two arguments chal-

lenging the constitutionality of section 922(g)(1). Each argument

fails. Accordingly, we affirm the conviction and sentence.

I.

On March 11, 2021, a jury convicted Reid of knowingly pos-

sessing a firearm as a convicted felon in violation 18 U.S.C.

§ 922(g)(1). The following facts were submitted as evidence at trial.

On January 29, 2020, at about 1:15 am, two victims were

shot at Babe’s nightclub. Surveillance footage captured the shoot-

ing as it unfolded. The footage revealed two individuals speaking

in front of Babe’s when a silver Kia arrived. An unidentified person

wearing a hooded sweatshirt, a ski mask, and a blue glove emerged

from the car and approached the individuals. The unidentified per-

son fired a gun at the two individuals, wounding them both. The

victims both fled before the shooter returned to his car and traveled

westbound.

Shortly after the shooting, law enforcement began investi-

gating and looking for the suspect. A detective soon arrived at the

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scene where he collected nine shell casings, five bullets, and one

live round of ammunition. As the detective was investigating the

scene, an officer saw a silver Kia matching a description of the sus-

pect’s car and began to follow it. When the officer eventually

caught up to the car, it drifted to the side of the road and crashed.

The officer then pursued the suspect on foot, but he failed to ap-

prehend him. Law enforcement then impounded the car and se-

cured a search warrant for the vehicle.

At the impound lot, officers searched the car. There, they

found Reid’s driver’s license, a ski mask, three cellphones including

a pre-paid cellphone, a sweatshirt, a paycheck for “Reid J,” a rental

car receipt indicating that the car was rented to Reid, and a fanny

pack containing blue latex gloves, a gun, and ammunition. Each of

these items was tied directly to Reid or the crime. A manager for

the rental car company later confirmed that Reid rented a silver Kia

Optima on January 24 that was scheduled to be returned on Janu-

ary 29. Store surveillance footage captured Reid purchasing the

pre-paid phone. Cell tower records indicated that the three phones

were “close in proximity” to Babe’s at the time of the shooting. And

testing later confirmed that the shell casings from the crime scene

were fired from the gun found in the car, fingerprints on the pre-

paid phone belonged to Reid, and Reid was the “major profile” or

“number one contributor” of DNA found on each item, including

the gun. Reid later stipulated that the gun “was manufactured out-

side the state of Florida and was subsequently moved into the State

of Florida.”

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4 Opinion of the Court 23-10619

ATF Special Agent Ivan Kovacevich assisted in the investi-

gation and testified about his involvement at trial. According to Ko-

vacevich, he and three other officers interviewed Reid. During the

interview, Reid said that he rented the silver Kia, but that it had

been abandoned and likely stolen. When asked about the three cell-

phones found in the car, he admitted to owning two of them but

denied owning the pre-paid phone. Kovacevich did not know why

Reid denied owning the pre-paid phone, but he theorized that Reid

purchased the phone as a “drop phone,” used it to “contact[ ] an-

other individual who was present at the location arranging for the

shooting to take place,” and intended to discard it after the shoot-

ing. When asked for the passcode to unlock his phones, Reid re-

fused. He also denied owning the ski mask, sweatshirt, fanny pack,

and gun that were found in the car.

At trial, the government asked Kovacevich about a tattoo on

Reid’s stomach that resembled elements of the crime. Specifically,

the tattoo depicted “a person wearing a ski mask holding two

smoking semiautomatic handguns that look nearly identical to the

[gun] brandished in this case.” Reid objected to this evidence as

having “zero relevance” and “zero probative value.” He argued

that it was “not a predicter of [‘]now I’m going to start shooting

people at Babe’s because I have a tattoo.[’]” But the government

insisted that it intended to use the tattoo to prove identity because

of the similarities between the tattoo and the shooter captured on

video. The court allowed the government to submit evidence of

the tattoo and instructed the jury that it could consider the evi-

dence “for the limited purpose of deciding an identity” but “must

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23-10619 Opinion of the Court 5

not consider this evidence to decide if the defendant engaged in the

activity alleged in the indictment.”

The government also introduced evidence of Reid’s prior

conviction under Fla. Stat. § 790.23 for possessing a firearm as a

convicted felon. Reid objected to the submission on the basis that

he already stipulated to being a convicted felon which is an element

of his charged offense. But the court allowed the submission along

with an instruction that the jury could consider the prior convic-

tion “to decide whether the defendant had the state of mind or in-

tent necessary to commit” the present offense, but it could not rely

on the conviction “to decide if the defendant engaged in the activity

alleged.”

At closing arguments, the prosecutor summarized the gov-

ernment’s case against Reid. The prosecutor recounted the DNA

analysis, cellphone records, and witness testimony, and he replayed

the surveillance footage that captured the shooting. While playing

the footage, he also stated that “you can see . . . the defendant get-

ting out [of the car,] . . . the defendant getting back into the silver

vehicle[,] . . . here he is exiting [the scene,] . . . [a]nd he is, in fact,

turning left[.]” Reid maintains that surveillance footage was not

clear and was devoid of “any evidence that [the suspect] resembled

[him.]” After closing, the jury found Reid guilty.

The court proceeded to sentencing. The government filed a

PSI in which it sought several sentence enhancements. Most rele-

vant of these enhancements was the armed career criminal en-

hancement. According to the PSI, Reid was eligible for an armed

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6 Opinion of the Court 23-10619

career criminal enhancement under U.S.S.G. § 4B1.4 “because the

instant offense of conviction is a violation of 18 U.S.C. § 922(g), and

the defendant has at least three prior convictions for a violent fel-

ony or serious drug offense, or both, that were committed on oc-

casions different from one another.” Those prior convictions in-

cluded aggravated assault on November 9, 2012; sale of cocaine on

November 16, 2012; and sale of a controlled substance and posses-

sion of heroin with intent to sell on March 19, 2018. At sentencing,

the court read these facts and recognized that Reid made “no ob-

jection.” The court even afforded Reid another opportunity to ob-

ject, but he did not. Reid filed proposed objections to the PSI, but

he did not deny that he committed three violent felonies or serious

drug offenses on three separate occasions. The court then adopted

the PSI calculations and applied the armed career criminal en-

hancement. Ultimately, the court sentenced Reid to life imprison-

ment to run concurrent to any anticipated state sentence with five

year’s supervised release.

Reid timely appealed.

II.

Several standards of review govern our analysis. We review

a district court’s evidentiary rulings for an abuse of discretion.

United States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011). When

a defendant challenges an evidentiary ruling or asserts a claim for

prosecutorial misconduct for the first time on appeal, we review

for plain error. United States v. Calderon, 127 F.3d 1314, 1334 (11th

Cir. 1997) (for unpreserved evidentiary challenges); United States v.

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23-10619 Opinion of the Court 7

Frank, 599 F.3d 1221, 1238 (11th Cir. 2010) (for unpreserved prose-

cutorial misconduct challenges). We review the “cumulative im-

pact of multiple evidentiary and instructional errors” de novo.

United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007). We review

unobjected to enhancements under the ACCA for plain error.

United States v. Edwards, 142 F.4th 1270, 1279 (11th Cir. 2025);

United States v. Laines, 69 F.4th 1221, 1233 (11th Cir. 2023). Finally,

when a defendant challenges the constitutionality of the statute of

conviction for the first time on appeal, we review for plain error.

United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

III.

Reid’s appeal proceeds in three phases. First, he argues that

his conviction should be reversed due to a series of supposed trial

errors. Next, he argues that his sentence should be vacated because

he does not have three predicate offenses to warrant an enhance-

ment, and that even if he did, a jury did not find that he committed

these offenses on three separate occasions as required by 18 U.S.C.

§ 924(e). Finally, he argues that section 922(g)(1) is unconstitutional

under the Commerce Clause and the Second Amendment. We re-

ject each of these arguments.

A.

Reid begins by challenging his conviction. Specifically, he ar-

gues that the district court committed several reversible errors by

(1) admitting as evidence his tattoo depicting a man in a ski mask

wielding two semi-automatic pistols; (2) admitting as evidence his

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8 Opinion of the Court 23-10619

prior conviction for possession of a firearm by a convicted felon;

(3) allowing testimony that he refused to give his phone passcode

to law enforcement; (4) allowing opinion testimony about why he

owned a pre-paid cell phone; (5) allowing the government to iden-

tify him on surveillance footage during closing arguments even

though the identity of the man on camera had not been proven;

and (6) depriving him of a fair trial through the cumulative effect

of these errors. Upon review, we determine that the district court

did not commit any errors, so we cannot reverse for cumulative

error. Therefore, we affirm his conviction.

1.

First, Reid argues that the district court abused its discretion

by admitting as evidence his tattoo depicting a person in a ski mask

holding two smoking pistols over his objection. According to Reid,

the government used the tattoo “to show propensity” and that he

“had a hostile, criminal disposition.” Therefore, the probative

value was substantially outweighed by undue prejudice. But the

government did not introduce evidence of a prior bad act to prove

propensity. It introduced evidence of a tattoo that resembled ele-

ments of the crime to prove identity. And the district court gave

the jury a limiting instruction on the proper use of this evidence.

As a result, we cannot say that the decision to admit the evidence

was an abuse of discretion.

Reid initially argues that the evidence was inadmissible as a

prior bad act. According to Rule 404(b) of the Federal Rules of Ev-

idence, “[e]vidence of any other crime, wrong, or act is not

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23-10619 Opinion of the Court 9

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the charac-

ter,” although it may be admissible “for another purpose” such as

to prove identity. But Reid’s tattoo is not a “act”; it is a physical

feature. As such, Rule 404(b) is inapplicable.

Instead, we should look to Rule 403 and Rule 404(a). Under

Rule 403, the court “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair preju-

dice.” Fed. R. Evid. 403. We have emphasized that “the trial judge

is accorded the broadest discretion in determining whether evi-

dence should be excluded under Rule 403.” United States v. Costa,

947 F.2d 919, 924 (11th Cir. 1991) (quotation marks omitted). Thus,

when reviewing decisions under Rule 403, we “look at the evidence

in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” United States v.

Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (quotation marks omit-

ted). Even if evidence is admissible under Rule 403, it cannot be

used as improper character evidence under Rule 404(a). See Fed. R.

Evid. 404(a) (“Evidence of a person’s character or character trait is

not admissible to prove that on a particular occasion the person

acted in accordance with the character or trait.”). Applying these

rules, the district court did not abuse its discretion.

The court reasonably concluded that the tattoo was relevant

and probative to the shooter’s identity and that its relevance was

not substantially outweighed by the risk of unfair prejudice in light

of its limiting instruction to the jury that it could not consider the

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10 Opinion of the Court 23-10619

tattoo as character evidence. Specifically, the tattoo depicted “a

person wearing a ski mask,” just like the shooter, who was “holding

two smoking semiautomatic handguns that look nearly identical”

to the handgun used in this case. Because the identity of the shooter

was “likely the most important issue for the jury to decide,” the

tattoo was especially relevant. And to “ameliorate any prejudice”

that may result from the admission, the court offered a limiting in-

struction to the jury that it could consider the tattoo only “for the

limited purpose of deciding an identity,” but not whether Reid “en-

gaged in the activity alleged in the indictment.” In light of these

circumstances, “the probative value and government need for this

evidence were strong, [and] any unfair prejudice possibly caused

by its introduction was mitigated by the trial judge’s limiting in-

structions.” United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th

Cir. 1993); United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir.

2005) (“Moreover, the risk of undue prejudice to [the defendant]

was reduced by the court’s limiting instruction.”). Consequently,

the district court did not abuse its discretion.

2.

Next, Reid challenges the admissibility of his prior convic-

tion. He argues that the admission was unduly prejudicial because

he already stipulated that he knew his status as a convicted felon

and there were no other purposes for which the conviction could

have been relevant evidence. Therefore, the government intro-

duced the conviction as a prior bad act used to show “bad character

or propensity” for the crime. But the government properly relied

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23-10619 Opinion of the Court 11

on the prior conviction to prove intent at trial. As a result, the dis-

trict court did not abuse its discretion by allowing the evidence

over Reid’s objection.

Under Rule 404(b)(2), the government can rely on evidence

of prior bad acts to prove intent. Fed. R. Evid. 404(b)(2). To be ad-

missible under this rule, the evidence must satisfy three conditions:

(1) it must be relevant to an issue other than the defendant’s char-

acter; (2) there must be sufficient evidence to allow a jury to find

by a preponderance of the evidence that the defendant committed

the prior bad act; and (3) any undue prejudice associated with the

prior bad act must not substantially outweigh the probative value.

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). The

government satisfied each of these conditions, so admission was

proper.

Applying the first condition, intent was a material issue in

this case. To sustain a conviction under 18 U.S.C. § 922(g), the gov-

ernment must prove “both that the defendant knew he possessed a

firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.” Rehaif v. United States,

588 U.S. 225, 237 (2019) (emphasis added). A defendant makes his

intent a material issue by pleading not guilty to the offense, alt-

hough he can “remove intent as an issue and prevent the introduc-

tion of Rule 404(b) evidence by stipulating that [he] had the re-

quired intent.” United States v. Cenephat, 115 F.4th 1359, 1366 (11th

Cir. 2024). True, Reid stipulated that he “knew of his status as a

convicted felon,” but he pleaded not guilty. As a result, he

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12 Opinion of the Court 23-10619

conceded that he “knew he belonged to the relevant category of

persons barred from possessing a firearm,” but whether he “knew

he possessed a firearm” remained a disputed issue. See Rehaif, 588

U.S. at 237.

The prior conviction was relevant to proving intent. A prior

conviction can be relevant evidence of intent “where the state of

mind required for the charged and extrinsic offenses is the same.”

Edouard, 485 F.3d at 1345. And under Fla. Stat. § 790.23, the crime

for which Reid was previously convicted, the government must

prove two elements: felony status and “knowingly owning or hav-

ing a firearm in one’s care, custody, possession or control.” Hines v.

State, 983 So. 2d 721, 724 (Fla. 1st Dist. Ct. App. 2008). Therefore,

both the prior conviction and the present offense require knowing

possession of a firearm. And we have previously recognized a “log-

ical connection between a convicted felon’s knowing possession of

a firearm at one time and his knowledge that a firearm is present at

a subsequent time (or, put differently, that his possession at the

subsequent time is not mistaken or accidental).” United States v. Jer-

nigan, 341 F.3d 1273, 1281 (11th Cir. 2003), abrogated in part on other

grounds by Rehaif, 588 U.S. 225. Therefore, Reid’s prior conviction

was relevant to proving intent in the instant matter.

Under the second condition, there must be sufficient proof

for a jury to find by a preponderance of the evidence that Reid pre-

viously possessed a firearm as a convicted felon. See Edouard, 485

F.3d at 1344. “It is elementary that a conviction is sufficient proof

that [the defendant] committed the prior act,” and whether the

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conviction was the result of a jury verdict or guilty plea is “incon-

sequential.” Calderon, 127 F.3d at 1332. Because Reid previously

pleaded guilty to and was convicted of unlawful possession of a

firearm by a felon, the jury could have reasonably determined that

he previously possessed a firearm as a convicted felon.

Under the third condition, the unfair prejudice of the prior

act must not substantially outweigh its probative value. Edouard,

485 F.3d at 1344. And under the broad discretion afforded to the

district court on matters of admissibility, we cannot say that the

potential prejudice outweighed the probative value. See Costa, 947

F.2d at 924; Lopez, 649 F.3d at 1247. As mentioned earlier, we have

previously recognized the “logical connection between a convicted

felon’s knowing possession of a firearm at one time and his

knowledge that a firearm is present at a subsequent time.” Jernigan,

341 F.3d at 1281. And to minimize the potential unfair prejudice,

the district court twice instructed the jury that it “may consider this

evidence to decide whether the defendant has the state of mind or

intent necessary to commit the crime,” but it could not consider

the evidence to “decide if the defendant engaged in the activity al-

leged in the indictment.” See Ramirez, 426 F.3d at 1354 (potential

prejudice can be reduced by curative instruction). Due to the pro-

bative value of the prior conviction and the diminished potential

prejudice in light of the instruction, the district court did not abuse

its broad discretion by admitting evidence of the prior conviction.

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14 Opinion of the Court 23-10619

3.

Reid’s third argument against his conviction is that the court

reversibly erred by allowing Kovacevich to testify that Reid refused

to provide the passcode to his phones. According to Reid, his fail-

ure to provide his passcode was a “comment on his right to refuse,

similar to a comment on the right to silence under the Fifth

Amendment,” and allowing this testimony was “inherently preju-

dicial error.” He acknowledges that he did not raise this issue be-

low, so we review for plain error. See Calderon, 127 F.3d at 1334.

And under this standard, we cannot say the court erred.

Under plain error review, the defendant has the burden of

showing that (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 public reputation of judicial proceedings.

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). An er-

ror is plain if the legal rule is “clearly established at the time the

case is reviewed on direct appeal.” United States v. Moore, 22 F.4th

1258, 1266 (11th Cir. 2022) (quotation marks omitted). “Where the

explicit language of a statute or rule does not specifically resolve an

issue,” there can be no plain error unless “precedent from the Su-

preme Court or this Court directly resolv[es] it.” Id. (citation omit-

ted).

Reid did not satisfy his burden of showing that allowing Ko-

vacevich’s testimony constituted plain error. Reid does not ex-

pressly identify what law the testimony may violate, but he alludes

generally to the Fourth and Fifth Amendments. The Fourth

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23-10619 Opinion of the Court 15

Amendment protects “[t]he right of the people . . . against unrea-

sonable searches and seizures,” and the Fifth Amendment protects

individuals from being “compelled in any criminal case to be a wit-

ness against himself.” By looking solely at the “explicit language”

of these amendments, there is no way to tell how they would apply

to a defendant’s refusal to unlock his phone for law enforcement.

See Moore, 22 F.4th at 1266. And Reid does not cite any relevant

authorities to illustrate the alleged error. Instead, he points to out-

of-circuit and state decisions that suggest this testimony was im-

proper. The only Eleventh Circuit case he cites is an unpublished

decision that he admits “[did] not squarely address the issue.” See

United States v. Rio, 443 F. App’x 433, 438 & n.2 (11th Cir. 2011). In

that case, we recognized that there was “no case law that squarely

answers the question,” acknowledged a split among our sister cir-

cuits, and avoided deciding it ourselves.

Reid bears the burden of demonstrating plain error, and be-

cause he failed to identify explicit language or a relevant decision

that resolves this matter, he failed to satisfy that burden. Therefore,

we cannot say the district court plainly erred.

4.

Fourth, Reid argues that the district court erred by allowing

Kovacevich to share his theory that Reid used the pre-paid cell-

phone as a “drop phone” to “contact[ ] another individual who was

present at the location arranging for the shooting to take place.”

According to Reid, Kovacevich essentially testified that he believed

Reid “called someone inside to draw out [the victim],” which is

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16 Opinion of the Court 23-10619

“tantamount to advising the jury [that] he is guilty.” Reid recog-

nizes that he did not raise this issue at trial, so we review for plain

error. See Calderon, 127 F.3d at 1334.

At the outset, we must examine the basis of Kovacevich’s

opinion to determine whether it is lay or expert. United States v.

Gbenedio, 95 F.4th 1319, 1332 (11th Cir. 2024). Although the line

between the two may blur “when testimony is based on profes-

sional work,” we have previously held that a witness may offer lay

testimony “based on his professional experiences as long as the tes-

timony is rationally based on those experiences, rather than on sci-

entific or technical knowledge.” Id. (citation omitted). Ko-

vacevich’s testimony was not based on any technical knowledge,

but instead on his five years of experience as an ATF special agent,

five years of experience as a police officer, and his own involve-

ment in the investigation into the shooting. As a result, Ko-

vacevich’s testimony was lay opinion testimony governed by Rule

701 of the Federal Rules of Evidence.

We cannot say the district court plainly erred under Rule

701. Under Rule 701, opinion testimony must be “rationally based

on the witness’s perception,” “helpful . . . to determining a fact in

issue,” and “not based on scientific, technical, or other specialized

knowledge.” Fed. R. Evid. 701. Each condition was arguably met.

As previously mentioned, Kovacevich’s testimony was based on his

own career experience instead of technical or scientific knowledge.

He developed this theory based on what he learned “[d]uring the

course of [his] investigation.” And this testimony was offered only

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after Reid’s counsel elicited testimony that Kovacevich “[didn’t]

know why [Reid] [was] lying about [owning] the third phone.”

Reid argues that the opinion was nevertheless improper un-

der our decision in United States v. Hawkins, 934 F.3d 1251 (11th Cir.

2019). There, we held that an agent’s testimony “went far beyond

permissible testimony” and constituted plain error when the agent

offered “speculative interpretive commentary on the meanings of

phone calls and text messages and gave his opinions about what

was occurring during and in between those communications.” Id.

at 1261. But unlike here, in Hawkins, the “Government's case

hinged on [the agent’s] extensive testimony.” Id. at 1266. And un-

like Kovacevich, the agent in Hawkins “‘interpreted’ unambiguous

language, mixed expert opinion with fact testimony, and synthe-

sized the trial evidence for the jury.” Id. He was also “presented as

an expert to the jury,” and his testimony “strayed into speculation

and unfettered, wholesale interpretation of the evidence.” Id. Due

to these dissimilarities, Hawkins is inapplicable to the matter before

us, and the district court did not plainly err.

5.

Fifth, Reid argues that the prosecutor’s comments identify-

ing him as the person exiting the car in surveillance footage consti-

tuted prosecutorial misconduct because “there was no evidence or

testimony” to support this statement, the prosecutor “improperly

conveyed to the jury that [he] knew [Reid] was the person in the

video,” and “the sole issue in this case was the identity of the

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18 Opinion of the Court 23-10619

driver/shooter.” Reid did not raise this issue below, so we review

for plain error. See Frank, 599 F.3d at 1238.

A prosecutor’s remarks amount to misconduct when the re-

marks are “improper” and “prejudicially affect the substantial

rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206

(11th Cir. 1991). Remarks can be improper if the prosecutor “ma-

terially misstate[s] the facts shown by the evidence.” United States

v. Goldstein, 989 F.3d 1178, 1199 (11th Cir. 2021). “[A]lthough a

prosecutor may not exceed the evidence presented at trial during

her closing argument, she may state conclusions drawn from the

trial evidence.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir.

2014). And “[a] defendant’s substantial rights are prejudicially af-

fected when a reasonable probability arises that, but for the re-

marks, the outcome of the trial would have been different.” United

States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). We generally

consider four factors in determining whether a defendant’s sub-

stantial rights are prejudicially affected, including whether (1) “the

challenged comments had a tendency to mislead the jury or preju-

dice the defendant;” (2) “the comments were isolated or exten-

sive;” (3) “the comments were deliberately or accidentally placed

before the jury;” and (4) “the strength of the competent proof es-

tablishing the guilt of the defendant.” Reeves, 742 F.3d at 505. When

we assess these factors, “comments in closing statement must be

viewed in the context of the trial as a whole.” Id.

Even if we assume the comments were improper, they did

not prejudice Reid’s substantial rights. True, the comments may

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23-10619 Opinion of the Court 19

have satisfied the first and third factors, given that Reid’s identity

as the shooter was not proven and that the comments made during

closing were likely intentional. But they did not satisfy the other

two factors. Specifically, the comments were not extensive; the

prosecutor briefly identified Reid as the person in the surveillance

video amid summarizing the government’s entire case against him,

including DNA analysis, witness testimony, and cellphone records.

And the proof establishing Reid’s guilt is relatively strong, as the

government presented overwhelming DNA evidence that Reid

had worn the items seen on the surveillance footage that were re-

covered from a car that he rented and handled the gun used in the

crime, as well as evidence that his cellphones were in the vicinity

at the time of the shooting. Under plain error review and in the

context of the trial as a whole, the prosecutor’s comments made at

closing did not prejudicially affect Reid’s substantial rights.

6.

Reid’s final argument against his conviction is that the cu-

mulative effect of the aforementioned supposed errors deprived

him of a fundamentally fair trial. Under the cumulative error doc-

trine, we reverse a conviction if the aggregation of individually

nonreversible errors results in the denial of the defendant’s right to

a fair trial. United States v. Leonard, 4 F.4th 1134, 1147 (11th Cir.

2018). But there can be no cumulative error “[w]here there is no

error or only a single error.” United States v. Gamory, 635 F.3d 480,

497 (11th Cir. 2011). Therefore, because the district court did not

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20 Opinion of the Court 23-10619

err under any of Reid’s arguments, we cannot reverse his convic-

tion for cumulative error.

B.

Next, Reid challenges his sentence. The district court deter-

mined that Reid was an armed career criminal under the ACCA

and subject to a sentence enhancement under U.S.S.G. § 4B1.4. A

defendant is an armed career criminal if he violates 18 U.S.C.

§ 922(g) and has three previous convictions “for a violent felony or

a serious drug conviction, or both, committed on occasions differ-

ent from one another.” 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4. Reid

argues that his sentence must be vacated because the jury did not

find that he committed three predicate offenses on different occa-

sions and because his prior convictions were not predicate “violent

felon[ies]” or “serious drug offense[s].” 18 U.S.C. § 924(e). He did

not challenge any of these issues below, so we review for plain er-

ror. Edwards, 142 F.4th at 1279, 1281; Laines, 69 F.4th at 1233. And

upon review, the district court did not plainly err on any of these

matters.

1.

First, Reid argues that the failure to submit his prior convic-

tions to the jury to find that he was convicted of three predicate

offenses on three separate occasions was a structural error requir-

ing automatic reversal under Erlinger v. United States, 602 U.S. 821

(2024). See United States v. Troya, 733 F.3d 1125, 1134 (11th Cir.

2013) (“Trial errors are subject to harmless error review, whereas

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23-10619 Opinion of the Court 21

structural errors require automatic reversal.”). In Erlinger, the Su-

preme Court held that “judicial factfinding by a preponderance of

the evidence that a defendant has three ACCA predicate convic-

tions committed on different occasions” violates the Fifth and Sixth

Amendments. United States v. Rivers, 134 F.4th 1292, 1305 (11th Cir.

2025) (citing Erlinger, 602 U.S. at 830). But we recently determined

that such a violation was not a structural error and therefore not

entitled to automatic reversal. Id.

The court did not plainly err by finding that the different oc-

casions requirement was satisfied because Reid conceded that he

was convicted of three predicate offenses on three separate occa-

sions. According to the PSI, Reid had “at least three prior convic-

tions for a violent felony or serious drug offense, or both, that were

committed on occasions different from one another.” Specifically,

he committed aggravated assault on November 9, 2012; sold co-

caine on November 16, 2012; and sold a controlled substance and

possessed heroin with intent to sell or deliver on March 19, 2018.

Reid did not object to these facts either before or during the sen-

tencing hearing. When a defendant fails to object to specific facts

contained in a PSI, he “waive[s] any objections and effectively ad-

mit[s] to the recited facts for sentencing purposes.” United States v.

Harris, 941 F.3d 1048, 1053 (11th Cir. 2019). In light of this conces-

sion, the district court did not plainly err.

2.

Next, Reid argues that his aggravated assault conviction was

not a violent felony under the ACCA because at the time of

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22 Opinion of the Court 23-10619

conviction, Florida courts were divided on whether aggravated as-

sault could be committed recklessly. See Borden v. United States, 593

U.S. 420, 423 (2021) (holding that a reckless offense cannot qualify

as a “violent felony” under the ACCA). This argument is foreclosed

by our precedent.

Under the ACCA, a “violent felony” is any crime punishable

by more than one year in prison involving “the use, attempted use,

or threatened use of physical force against the person of another.”

18 U.S.C. § 924(e)(2)(B)(i). To determine whether a state crime

qualifies as a “violent felony,” we employ the categorical approach.

United States v. Jones, 906 F.3d 1325, 1327–28 (11th Cir. 2018). Under

this approach, we look only to the elements of the prior offense,

not the facts underlying the conviction, and determine whether the

least culpable conduct criminalized by the statute meets the federal

definition of a “violent felony.” Id. And when we determine the el-

ements of a state offense, we are bound by the state’s caselaw de-

fining those elements. See United States v. Rosales-Bruno, 676 F.3d

1017, 1021 (11th Cir. 2012).

In Somers v. United States, we determined that Florida aggra-

vated assault was a violent felony under the ACCA. 66 F.4th 890,

896 (11th Cir. 2023). In doing so, we recognized the Florida Su-

preme Court’s response to our certified question that “assault un-

der Florida law requires a mens rea of at least knowing conduct; it

cannot be committed recklessly.” Id. (citing Somers v. United States,

355 So. 3d 887, 892 (Fla. 2022)). And because this interpretation re-

flects “what the statute always meant,” Somers could not “rely on

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23-10619 Opinion of the Court 23

earlier decisions of Florida’s intermediate courts of appeal to avoid

this clear holding.” Id. (quotation marks and citations omitted).

Reid acknowledges that this decision is binding precedent yet asks

us to revisit it. But under our prior panel precedent rule, we must

follow our earlier decision unless it has been abrogated by the Su-

preme Court, this Court sitting en banc, or a state supreme court

on a matter of state law. Hattaway v. McMillian, 903 F.2d 1440, 1445

n.5 (11th Cir. 1990). Since there are no such intervening decisions,

we are bound to follow Somers.

3.

Reid’s third argument against his sentence enhancement is

that his drug convictions were not “serious drug offenses” under

the ACCA because the Florida definitions of “heroin” and “co-

caine” are broader than the federal definitions. But his cocaine ar-

gument is foreclosed by our precedent, and he points to no caselaw

clearly establishing that the Florida definition of heroin is over-

broad. Therefore, the district court did not plainly err.

Under the ACCA, a “serious drug offense” is “an offense un-

der State law, involving manufacturing, distributing, or possessing

with intent to manufacture or distribute, a controlled substance.”

§ 924(e)(2)(A)(ii). When determining whether a state crime quali-

fies as a serious drug offense, we again apply the categorical ap-

proach. United States v. Conage, 976 F.3d 1244, 1250 (11th Cir. 2020).

In so doing, we look at “the version of state law that the defendant

was actually convicted of violating.” United States v. Jackson, 55

F.4th 846, 850 (11th Cir. 2022), aff’d sub nom., Brown v. United States,

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24 Opinion of the Court 23-10619

602 U.S. 101 (2024) (quotation marks omitted). Additionally, “the

federal controlled-substances schedules in effect at the time of the

previous state conviction,” rather than those in effect at the time of

the federal firearm offense, are used to determine whether a prior

state conviction constitutes a serious drug offense. Id. at 856. Thus,

a “prior state drug conviction constitutes an ACCA predicate if the

drugs on the federal and state schedules matched when the state

drug offense was committed.” Brown, 602 U.S. at 119.

Reid argues that the state definitions of “cocaine” and “her-

oin” are overbroad because they include “any” stereoisomer of co-

caine and “any” isomer of heroin, whereas the federal definitions

include only the “optical and geometric isomers” of cocaine and

the “optical isomer” of heroin. Compare Fla. Stat. § 893.03(2)(a)(4)

(listing as a controlled substance “[c]ocaine or ecgonine, including

any of their stereoisomers, and any salt, compound, derivative, or

preparation of cocaine or ecgonine”) (emphasis added), and §

893.03(1)(b)(11) (listing “heroin” and “any of [its] salts, isomers, and

salts of isomers” when sufficiently present) (emphasis added), with

21 U.S.C. § 812(c), Sched. II(a)(4) (listing “cocaine, its salts, optical

and geometric isomers, and salts of isomers”) (emphasis added), and

§ 812(c), Sched. I(b)(10) (listing “heroin,” including its “salts, iso-

mers, and salts of isomers,” when sufficiently present); § 802(14)

(2018) (“The term ‘isomer’ means the optical isomer”) (emphasis

added). But, as Reid recognizes, we previously rejected this argu-

ment under plain error review with regards to cocaine because the

defendant “identified no precedent that would make it obvious or

clear under current law that the Florida definition of cocaine is

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23-10619 Opinion of the Court 25

overbroad.” See Laines, 69 F.4th at 1234 (internal quotation marks

omitted). And just like in Laines, Reid has identified no precedent

that clearly establishes that the Florida definition of either cocaine

or heroin is overbroad. As a result, the district court did not plainly

err.

C.

Finally, Reid argues that section 922(g)(1) is unconstitutional

under the Commerce Clause and the Second Amendment, facially

and as applied. See U.S. Const. art. I, § 8, cl. 3; Amend. 2. These

arguments fail.

Reid argues that section 922(g) is unconstitutional under the

Commerce Clause, facially and as applied, because his firearm pos-

session was completely intrastate. But as even he recognizes, his

arguments are foreclosed by our precedents. We have previously

determined that section 922(g) is within Congress’s Commerce

Clause powers. United States v. Stancil, 4 F.4th 1193, 1200 (11th Cir.

2021). And we have rejected his as applied theory so long as the

firearm previously travelled across state lines. See, e.g., United States

v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996). Because Reid stipu-

lated that the firearm was “manufactured outside the State of Flor-

ida and subsequently moved into the State of Florida,” his Com-

merce Clause argument fails.

Reid also argues that section 922(g) is unconstitutional un-

der the Second Amendment, facially and as applied, because there

is no American tradition of disarming convicted felons. And again,

Reid acknowledges that these arguments are foreclosed by our

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26 Opinion of the Court 23-10619

precedents. We have previously concluded that section 922(g)(1)

was constitutional under the Second Amendment and that “stat-

utes disqualifying felons from possessing a firearm under any and

all circumstances do not offend the Second Amendment.” United

States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010); see United States

v. Dubois, 139 F.4th 887, 892–94 (11th Cir. 2025) (concluding that

neither United States v. Rahimi, 602 U.S. 680 (2024), nor New York

State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), abrogated

Rozier). Therefore, this argument similarly fails.

IV.

We AFFIRM.