# United States v. Herman Smith

> Court of Appeals for the Eleventh Circuit · June 12, 2017 · 696 F. App'x 427

URL: https://www.frixlaw.com/law-library/cases/4176824

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Herman SMITH, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 12, 2017
- **Citations:** 696 F. App'x 427
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jordan, Marcus, Per Curiam, Tjoflat
- **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/4176824

## How later opinions describe it (automated extraction)

- 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”
- holding that § 922(g) is not unconstitutional as applied to “a defendant who possessed a firearm only intrastate” when the government demonstrated that the firearm moved in interstate commerce
- holding that, even in the wake of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), as long as the firearm in question has a “minimal nexus” to interstate commerce, § 922(g) is constitutional as applied

## Opinion text

Case: 16-15403 Date Filed: 06/12/2017 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-15403
Non-Argument Calendar
________________________

D.C. Docket No. 8:15-cr-00437-JSM-TBM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERMAN SMITH,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(June 12, 2017)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
Case: 16-15403 Date Filed: 06/12/2017 Page: 2 of 8

Herman Smith appeals his conviction and Armed Career Criminal Act

(“ACCA”) enhanced sentence for possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). We address each of his arguments in turn.

I.

On appeal, Smith first argues the government failed to prove that he

committed three qualifying offenses on different occasions. Additionally, he

contends that the Supreme Court’s decisions in Mathis v. United States, 136 S. Ct.

2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013), abrogated

our decision in United States v. Weeks, 711 F.3d 1255, 1260 (11th Cir. 2013),

which would otherwise foreclose his argument.

We generally review constitutional challenges to a sentence de novo. United

States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Under the ACCA, a defendant

convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence

of 15 years’ imprisonment if he possesses three prior convictions for a violent

felony or serious drug offense “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1).

To prove that the prior offenses occurred on different occasions, the

government must use only those documents approved in Shepard v. United States,

544 U.S. 13 (2005), such as the charging documents, plea agreements and

colloquies, jury instructions, and other comparable judicial records. United States

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v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir. 2010). We previously held that

district courts may determine the factual nature of prior convictions, including

whether they were committed on different occasions, so long as they limit

themselves to Shepard-approved sources. Weeks, 711 F.3d at 1260.

Under the prior panel precedent rule, subsequent panels are bound by the

holding of a prior panel until it is overruled or undermined to the point of

abrogation by a decision of the Supreme Court or of our Court sitting en banc.

United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The intervening

decision “must be clearly on point.” Id.

In both Descamps and Mathis, the Supreme Court examined the question of

when sentencing courts may apply the “modified categorical approach” to

determine if a crime qualifies as an ACCA violent felony, given that the

“elements” of a crime must be proven beyond a reasonable doubt. Mathis, 136 S.

Ct. at 2243; Descamps, 133 S. Ct. at 2276.

Neither Descamps nor Mathis is “clearly on point,” as neither case addressed

whether the dates of prior convictions need to be proven beyond a reasonable

doubt to sustain a conclusion that previous convictions occurred on different

occasions; thus, they did not overrule or undermine Weeks to the point of

abrogation. See Mathis, 136 S. Ct. at 2248–54; Descamps, 133 S. Ct. at 2282–93;

Archer, 531 F.3d at 1352. Therefore, Weeks forecloses Smith’s argument in the

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instant appeal. See Weeks, 711 F.3d at 1260. Accordingly, the district court did

not err by concluding that Smith committed three previous felonies on different

occasions.

II.

Smith next argues that his prior Florida convictions under Fla. Stat. § 893.13

did not qualify as serious drug offenses for purposes of the ACCA because the

Florida statute does not include a mens rea element. For the first time on appeal,

he also challenges whether his 2002 and 2009 convictions qualified as serious drug

offenses because the Florida charging documents provided alternative means by

which Smith could have committed the offenses.

We review de novo whether a prior conviction is a serious drug offense

within the meaning of the ACCA. United States v. Wilkerson, 286 F.3d 1324,

1325 (11th Cir. 2002). However, we review for plain error sentencing issues not

raised in the district court. United States v. Jones, 743 F.3d 826, 828 (11th Cir.

2014). A general objection is insufficient to preserve specific sentencing issues for

review. United States v. Carpenter, 803 F.3d 1224, 1237-38 (11th Cir. 2015).

Thus, we review for plain error new arguments on appeal that were not raised

before the district court, even though the arguments support an objection raised in

the district court. See Weeks, 711 F.3d at 1261. No plain error exists where

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precedent from the Supreme Court or our Court fails to directly resolve an issue.

Id.

The ACCA broadly defines a serious drug offense to include any offense

involving the manufacture, distribution, or possession with intent to manufacture

or distribute drugs. 18 U.S.C. § 924(e)(2)(A)(ii); United States v. White, 837 F.3d

1225, 1233 (11th Cir. 2016). We previously held that convictions under Fla. Stat.

§ 893.13(1) qualify as serious drug offenses pursuant to the ACCA, despite the

Florida statute’s lack of a mens rea element. United States v. Smith, 775 F.3d

1262, 1266–68 (11th Cir. 2014)

Here, Smith’s argument is directly foreclosed by our decision in Smith.

775 F.3d at 1266–68. In addition, the district court did not plainly err in

determining that Smith’s 2002 and 2009 convictions qualify as serious drug

offenses, because Smith failed to show any precedent from the Supreme Court or

our Court establishing that they do not qualify. See Weeks, 711 F.3d at 1261.

III.

Smith further argues that his ACCA-enhanced sentence above the

otherwise-applicable statutory maximum violated his Fifth and Sixth Amendment

rights because his prior convictions were not charged in an indictment and proven

to a jury beyond a reasonable doubt.

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In Almendarez-Torres v. United States, the Supreme Court held that the

government need not allege in its indictment or prove beyond a reasonable doubt

that a defendant had prior convictions in order for a sentencing court to use those

convictions for purposes of enhancing a sentence. 523 U.S. 224, 226–27 (1998).

We “consistently held” that district courts may determine both the existence of prior

convictions and the factual nature of those convictions. Weeks, 711 F.3d at 1259.

Here, our decision in Weeks directly forecloses Smith’s argument. Weeks

dictates that a failure to include facts of a defendant’s prior convictions and prove

them at trial for purposes of an ACCA enhancement does not violate the Fifth and

Sixth Amendments. See Weeks, 711 F.3d at 1259. Thus, there was no error, plain

or otherwise, regarding the constitutionality of Smith’s ACCA enhancement under

the Fifth and Sixth Amendments.

IV.

Smith also argues that we should vacate his conviction because § 922(g)(1)

is unconstitutional, both facially and as applied to him, because the statute exceeds

Congress’s authority under the Commerce Clause.

We typically review the constitutionality of a federal statute de novo. United

States v. Jackson, 111 F.3d 101, 101 (11th Cir. 1997). However, constitutional

objections that were not raised before the district court are reviewed only for plain

error. United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). A failure

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to object to allegations of fact in a presentence investigation report admits those

facts for sentencing purposes. United States v. Patterson, 595 F.3d 1324, 1326

(11th Cir. 2010).

We repeatedly held that the express jurisdictional element in 18 U.S.C.

§ 922(g) defeated constitutional challenges to the statute under the Commerce

Clause. See, e.g., United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011)

(holding that § 922(g) is not unconstitutional as applied to “a defendant who

possessed a firearm only intrastate” when the government demonstrated that the

firearm moved in interstate commerce); 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”); United

States v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996) (holding that, even in

the wake of United States v. Lopez, 514 U.S. 549 (1995), as long as the firearm in

question has a “minimal nexus” to interstate commerce, § 922(g) is constitutional

as applied).

Here, Smith’s facial challenge to the constitutionality of § 922(g)(1) is

foreclosed by our precedent. See Scott, 263 F.3d at 1273. Furthermore, the

government established the minimal nexus between Smith’s firearm and interstate

commerce necessary to survive an as-applied challenge, as Smith did not object to

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the facts in his PSI, including the statement that the gun was manufactured in

Massachusetts and the ammunition was manufactured in Illinois and Brazil. See

Jordan, 635 F.3d at 1189.

Accordingly, we affirm Smith’s conviction and sentence.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4176824. Public record. Not legal advice.