United States v. Hayward Feaster

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

No. 09-15731 ELEVENTH CIRCUIT

AUGUST 24, 2010

Non-Argument Calendar

JOHN LEY

________________________

CLERK

D. C. Docket No. 09-00100-CR-T-30-MAP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HAYWARD FEASTER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 24, 2010)

ON PETITION FOR REHEARING

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Upon consideration of Plaintiff-Appellee’s petition for rehearing and to the

extent it seeks panel rehearing, we vacate the prior opinion in this case, issued on

July 8, 2010, and substitute the following opinion in its place. In this opinion, we

direct the district court to identify in the judgment of conviction 18 U.S.C.

§§ 922(g) and 924(a)(2) as the statutes of conviction for Count 1, rather than 18

U.S.C. § 922(g) and 924(e), as we had instructed in the original opinion.

Accordingly, Plaintiff-Appellee’s petition for panel rehearing is granted.

Hayward Feaster appeals from his convictions and sentences for (1)

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2); (2) possession with intent to distribute cocaine, in violation of 21

U.S.C. § 841(a)(1) and (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). Feaster argues: (1) for

the first time on appeal, that 18 U.S.C. §§ 922(g) and 924(c) are unconstitutional;

(2) that his 262-month sentence was unreasonable; and (3) that the judgment

improperly reflects the statutes on which he was convicted. After thorough review,

we affirm in part, and vacate and remand in part.

We review de novo the constitutionality of a statute as it is a question of law.

United States v. Cespedes, 151 F.3d 1329, 1331 (11th Cir. 1998). We review the

sentence a district court imposes for “reasonableness,” which “merely asks whether

the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

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First, we reject Feaster’s claim that the district court plainly erred in

convicting him of violating 18 U.S.C. §§ 922(g) and 924(c) due to the provisions’

unconstitutionality.1 Pursuant to § 922(g)(1), it is unlawful for a convicted felon

“to ship or transport in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate or foreign commerce.” 18

U.S.C. § 922(g)(1). We have held that section 922(g)(1) is not a facially

unconstitutional exercise of Congress’s power under the Commerce Clause. See

United States v. Scott, 263 F.3d 1270, 1273 (11th Cir. 2001) (holding that “the

jurisdictional element of the statute, i.e., the requirement that the felon ‘possess in

or affecting commerce, any firearm or ammunition,’ immunizes § 922(g)(1) from

[a] facial constitutional attack”). Further, we have held that § 922(g)(1) was not

unconstitutional as applied to a defendant who only possessed a firearm intrastate

because Ҥ 922(g) is an attempt to regulate guns that have a connection to interstate

commerce” and the government showed that the firearm in question “had traveled

1

Where, as here, a party fails to raise an issue before the lower court, we review the issue

for plain error. United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006). Plain error

occurs if (1) there was error, (2) that was plain, (3) affected the defendant’s substantial rights,

and (4) seriously affected the “fairness, integrity, or public reputation of judicial proceedings.”

Id. at 1283 (quotation omitted). An error cannot be “plain” unless it is “clear under current law.”

United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).

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in interstate commerce.” United States v. McAllister, 77 F.3d 387, 390 (11th Cir.

1996); United States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001).

Here, the district court did not plainly err in convicting Feaster of violating §

922(g)(1). For starters, Feaster’s argument that § 922(g)(1) is an unconstitutional

extension of Congress’s Commerce Clause power is foreclosed by our precedent.

See Scott, 263 F.3d at 1273; McAllister, 77 F.3d at 390; Dupree, 258 F.3d at

1259-60; see also United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008), cert. denied, 129 S.Ct. 2825 (2009) (holding that our prior precedent is

binding “unless and until it is overruled by this [C]ourt en banc or by the Supreme

Court”). As for Feaster’s claim that § 922(g)(1)’s reach is not limited to

constitutional applications because “commerce” could encompass only intrastate

commerce, this argument also fails because we have held that § 922(g)(1)’s

jurisdictional element, “i.e., the requirement that the felon ‘possess in or affecting

commerce, any firearm or ammunition,’ immunizes § 922(g)(1) from [a] facial

constitutional attack.” Scott, 263 F.3d at 1273; McAllister, 77 F.3d at 390.

Feaster’s as-applied challenge to § 922(g)(1) is likewise unavailing, because

Feaster waived the issue of the sufficiency of the government’s proof as to the

interstate-commerce element by virtue of his knowing and voluntary guilty plea.

See United States v. Cunningham, 161 F.3d 1343, 1344, 1346 & n.2 (11th Cir.

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1998) (noting that we have held that an as-applied constitutional challenge to the

sufficiency of the government’s evidence on the connection-with-commerce

element, similar to that in 18 U.S.C. § 922(g)(8), was nonjurisdictional, and that a

defendant’s guilty plea, therefore, waived the issue on appeal). Feaster’s

as-applied challenge further fails because he admitted during the plea hearing that

the firearms had been transferred across state lines into Florida, and the

government need only demonstrate that the firearm in question “traveled in

interstate commerce.” McAllister, 77 F.3d at 390; Dupree, 258 F.3d at 1260.

Nor has Feaster shown that § 924(c) is unconstitutional. Section

924(c)(1)(A) provides:

[A]ny person who, during and in relation to any crime of violence or

drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition

to the punishment provided for such crime of violence or drug

trafficking crime . . . be sentenced to a term of imprisonment of not

less than 5 years[.]

18 U.S.C. § 924(c)(1)(A)(i).

We have “squarely rejected” the argument that a § 924(c) conviction “cannot

stand because Congress lacked the power under the Commerce Clause to enact [§

924(c)].” United States v. Ferreira, 275 F.3d 1020, 1028 (11th Cir. 2001) (holding

that nothing in recent Supreme Court decisions altered our prior conclusion that §

924(c) is not an unconstitutional extension of Congress’s Commerce Clause

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power); United States v. DePace, 120 F.3d 233, 235 n.2 (11th Cir. 1997) (agreeing

with the courts that have rejected the contention “that [ ] § 924(c) is an

unconstitutional effort to regulate intrastate, non-economic activity”).

As applied here, Feaster’s challenge to § 924(c) as an unconstitutional

extension of Congress’s Commerce Clause power is foreclosed by our precedent.

See Ferreira, 275 F.3d at 1028; DePace, 120 F.3d at 235 n.2. The district court

therefore did not plainly err in convicting Feaster of violating § 924(c).

Feaster has also failed to show that the district court plainly erred in

convicting him of violating §§ 922(g)(1) or 924(c) on the ground that the statutes

unconstitutionally infringe on Feaster’s Second Amendment right to bear arms.

The Second Amendment states that “[a] well regulated Militia, being necessary to

the security of a free State, the right of the people to keep and bear Arms, shall not

be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller, the

Supreme Court interpreted this language to “guarantee [an] individual right to

possess and carry weapons in case of confrontation.” 128 S.Ct. 2783, 2797 (2008).

The Heller Court held that the District of Columbia’s ban on handgun possession

in the home by law-abiding citizens violated the Second Amendment. Id. at 2821.

The Court reasoned that “the inherent right of self-defense has been central to the

Second Amendment right” and that “[t]he handgun ban amount[ed] to a prohibition

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of an entire class of ‘arms’ . . . overwhelmingly chosen by American society for

that lawful purpose.” Id. at 2817. The Court qualified the right to bear arms:

“[l]ike most rights, [it] is not unlimited.” Id. at 2816. “[N]othing in [Heller]

should be taken to cast doubt on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws forbidding the carrying of firearms

in sensitive places such as schools and government buildings . . . .” Id. at 2816-17.

After Heller, we held that § 922(g)(1) is a “constitutional avenue to restrict

the Second Amendment right of” convicted felons. United States v. Rozier, 598

F.3d 768, 771 (11th Cir.), petition for cert. filed, (U.S. Apr. 30, 2010) (No.

09-10590). Since Heller expressly disclaimed any erosion of the “longstanding

prohibitions on the possession of firearms by felons,” we held that “statutes

disqualifying felons from possessing a firearm under any and all circumstances do

not offend the Second Amendment.” Id. However, we have not, nor has the

Supreme Court, addressed whether § 924(c) violates the Second Amendment.

Because we have held that the circumscription of a convicted felon’s right to

bear arms, as found in § 922(g)(1), does not violate the Second Amendment,

Feaster’s argument that his § 922(g)(1) conviction violated the Second

Amendment is without merit. Id. Indeed, any infringement on Feaster’s “inherent

right of self-defense” is irrelevant because statutes, such as § 922(g)(1),

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“disqualifying felons from possessing a firearm under any and all circumstances do

not offend the Second Amendment.” Id. at 770-71. In addition, the Supreme

Court has not decided the constitutionality of § 924(c)’s penalty provisions, we

have not determined whether § 924(c) violates the Second Amendment, and the

other circuits are split on the issue. Thus, the issue is not “clear under current

law,” and there can be no plain error. See Humphrey, 164 F.3d at 588.

Accordingly, if there was any error by the district court in convicting Feaster of

violating §§ 922(g)(1) and 924(c), it could not have been plain.2

Feaster has also failed to show that his sentence was unreasonable. In

reviewing sentences for reasonableness, we perform two steps. Pugh, 515 F.3d at

1190. First, we must “‘ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.

2

To the extent that Feaster challenges the sufficiency of the evidence to support his

§ 924(c) conviction, he waived this challenge by virtue of his knowing and voluntary guilty plea.

See Cunningham, 161 F.3d at 1344, 1346 & n.2.

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38, 51 (2007)).3 The district court need not discuss each § 3553(a) factor. United

States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Rather, “[t]he sentencing

judge should set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita, 551 U.S. at 356.

If we conclude that the district court did not procedurally err, we must

consider the “‘substantive reasonableness of the sentence imposed under an abuse-

of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515

F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring

us to determine “whether the sentence imposed by the district court fails to achieve

the purposes of sentencing as stated in section 3553(a).” Talley, 431 F.3d at 788.

There is a “range of reasonable sentences from which the district court may

choose,” and the burden is on the defendant to show that the sentence was

unreasonable in light of the record and the § 3553(a) factors. Id.

3

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect

the public; (5) the need to provide the defendant with educational or vocational training or medical

care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent

policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing

disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

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We will remand for resentencing only if we are “left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” Pugh, 515 F.3d at 1191

(citation and internal quotation omitted). We “ordinarily . . . [will] expect a

sentence within the Guidelines range to be reasonable.” Talley, 431 F.3d at 788.

Moreover, comparing the sentence imposed against the statutory maximum

sentence is one indication of reasonableness. See United States v. Valnor, 451

F.3d 744, 751-52 (11th Cir. 2006).

The record demonstrates that Feaster’s sentence was not procedurally

unreasonable. First, there is no dispute that the district court accurately calculated

the guideline range, treated the Guidelines as advisory, and based the sentence on

facts that were not clearly erroneous. Feaster’s argument that the district court

only provided a “talismanic recitation” of the § 3553(a) factors is not supported by

the record, which shows that the district court considered and rejected Feaster’s

arguments for a downward departure or a downward variance and explicitly found

that the sentence imposed was both sufficient to satisfy the purposes of § 3553(a)

and necessary to address the seriousness of the offense. Further, the district court

adequately explained the 262-month sentence when it stated that it had: (1)

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considered Feaster’s arguments, which included his financial support of his eight

children, the absence of his father, and his stepfather’s drug-related activities; (2)

Feaster’s personal statement; (3) the information contained in the PSI; and (4) the §

3553(a) factors. See Rita, 551 U.S. at 358-59 (stating that a district court’s

rationale is legally sufficient where the record makes clear that it has considered

the evidence and the arguments). Thus, Feaster has not shown that his sentence

was procedurally unreasonable. See Talley, 431 F.3d at 788.

Nor has he shown that his sentence was substantively unreasonable. As the

record shows, the district court determined that the sentence was in accord with the

seriousness of the offense and the need to provide Feaster with drug treatment and

medical care. See 18 U.S.C. § 3553(a)(1), (2)(A) and (2)(D). Further, the court

found that there were no mitigating circumstances w arranting a

below-guideline-range sentence and that the sentence imposed was “sufficient but

not greater than necessary to comply with the statutory purposes of sentencing.”

18 U.S.C. § 3553(a). Taking the § 3553(a) factors and the discretion the district

court is afforded in weighing those factors, the 262-month sentence, which was at

the lowest point of the guideline imprisonment range and within the

statutory-maximum sentence, was not “outside the range of reasonable sentences

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dictated by the facts of the case.” Pugh, 515 F.3d at 1191 (citation and internal

quotation omitted); see also Talley, 431 F.3d at 788; Valnor, 451 F.3d at 751-52.

Finally, we do agree, however, with Feaster’s claim that the judgment

improperly reflects the statutes on which he was convicted. While a court

fundamentally errs when it enters “a judgment of conviction against a defendant

who has not been charged, tried or found guilty of the crime recited in the

judgment,” we may correct the error by vacating the judgment and remanding “the

case to the district court for entry of a judgment in accordance with the charge and

the jury verdict.” United States v. Diaz, 190 F.3d 1247, 1252 (11th Cir. 1999); see

United States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (remanding with

directions to the district court to correct clerical errors when the statute cited in the

judgment and commitment order was incorrect). Such a remedy is appropriate

“only if the erroneous entry of the judgment was considered a clerical error, and

the correction of the judgment would not prejudice the defendant in any reversible

way.” Diaz, 190 F.3d at 1252.

Because the judgment misidentifies the statutes of conviction relevant to

Count 1, and Feaster does not contend that the error in the judgment is anything

more than a clerical error, we vacate and remand with instruction to identify 18

U.S.C. §§ 922(g) and 924(a)(2) as the statutes of conviction for Count 1.

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AFFIRMED in part and VACATED and REMANDED in part.

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