# United States v. Altonne Marquaviyes Finley

> Court of Appeals for the Eleventh Circuit · March 5, 2020

URL: https://www.frixlaw.com/law-library/cases/4513019

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** March 5, 2020
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case: 19-10717 Date Filed: 03/05/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-10717
Non-Argument Calendar
________________________

D.C. Docket No. 3:18-cr-00102-WKW-WC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALTONNE MARQUAVIYES FINLEY,

Defendant-Appellant.

________________________

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

(March 5, 2020)

Before WILLIAM PRYOR, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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Altonne Finley challenges his 210-month sentence for possessing powder

cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), possessing a

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

§ 924(c)(1)(A)(i), and being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). On appeal, Finley argues that his lawyer provided ineffective

assistance of counsel by failing (1) to object to his § 922(g)(1) charge on the basis

that neither his indictment, nor his plea agreement, nor the district court informed

him that knowledge of his status as a felon was an element of the charged offense;

and (2) to notify the district court of a change in the law relating to penalty

enhancements for repeat offenders under the First Step Act of 2018. Finley also

asserts that his conviction and plea are invalid in light of the Supreme Court’s

holding in Rehaif v. United States, 139 S. Ct. 2191 (2019). Lastly, Finley argues

that § 922(g) is unconstitutional because it exceeds the limits of Congress’s power

under the Commerce Clause.

As the facts of the case are familiar to the parties, we’ll proceed straight to

the merits of Finley’s appeal.

I

The Constitution provides criminal defendants the right to effective

assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S.

668, 684–86 (1984). Generally, a defendant’s right to effective assistance of

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counsel applies at all stages of a criminal prosecution. See United States v. Wade,

388 U.S. 218, 226–27 (1967). To demonstrate ineffective assistance of counsel,

the “defendant must show that (1) counsel’s representation fell below an objective

standard of reasonableness and (2) that such failure prejudiced him in that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” United States v. Pease, 240 F.3d 938,

941 (11th Cir. 2001) (internal quotation marks and citation omitted).

“A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694. “It is not enough for the defendant

to show that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. Rather, he must show that “the result . . . would have

been different.” Id. at 694. Specifically, where a defendant pleads guilty, he must

show “a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 59 (1985).

“Whether a criminal defendant’s trial counsel was ineffective is a mixed

question of law and fact, subject to de novo review.” United States v. Bender, 290

F.3d 1279, 1284 (11th Cir. 2002) (quotation omitted). “We will not generally

consider claims of ineffective assistance of counsel raised on direct appeal where

the district court did not entertain the claim nor develop a factual record.” Id.

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“The preferred means for deciding a claim of ineffective assistance of counsel is

through a 28 U.S.C. § 2255 motion even if the record contains some indication of

deficiencies in counsel’s performance.” United States v. Patterson, 595 F.3d 1324,

1328 (11th Cir. 2010) (internal quotation marks and citation omitted). “If the

record is sufficiently developed, however, this court will consider an ineffective

assistance of counsel claim on direct appeal.” Bender, 290 F.3d at 1284. Because

the record here is sufficiently developed, we’ll consider Finley’s two ineffective-

assistance-of-counsel claims in turn.

A

Finley first contends that his lawyer provided ineffective assistance of

counsel by failing to object to his § 922(g)(1) charge on the ground that his

indictment, his plea agreement, and the district court failed to inform him that

knowledge of his status as a felon was an element of the charged offense.

An attorney’s failure to anticipate a change in the law typically will not

support a claim of ineffective assistance of counsel. See Black v. United States,

373 F.3d 1140, 1146 (11th Cir. 2004); Jones v. United States, 224 F.3d 1251,

1257–58 (11th Cir. 2000) (“Since the district court would be required to follow the

law of this circuit until it was overruled by the Supreme Court or an en banc panel

of this court, it was not completely unreasonable for counsel to make a strategic

decision to forego a claim that was a loser under the then-current state of the

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law.”). Furthermore, “it generally does not fall below the objective standard of

reasonableness for trial counsel to fail to raise a claim in anticipation that

undeniably would lose under current law but might succeed based on the outcome

of a forthcoming Supreme Court decision.” Dell v. United States, 710 F.3d 1267,

1282 (11th Cir. 2013).

In Rehaif, the Supreme Court reversed our precedent and concluded that the

word “knowingly” in 18 U.S.C. § 924(a)(2) modifies the elements of § 922(g) so

that “in a prosecution under . . . § 922(g) and § 924(a)(2), the Government 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, 139 S. Ct. at 2195–96, 2200. We’ve since held that Rehaif “did not

announce a new rule of constitutional law”—rather, it clarified that knowledge of

one’s status as a felon is an element of § 922(g)(1). In re Palacios, 931 F.3d 1314,

1315 (11th Cir. 2019) (internal quotation marks omitted).

Here, Finley’s counsel did not provide ineffective assistance relating to the

Rehaif issue. This Court’s precedent clearly forecloses an ineffective-assistance-

of-counsel claim based on failure to raise an objection that would not succeed

under current law, but which could succeed depending on a forthcoming Supreme

Court decision. See Black, 373 F.3d at 1146; Dell, 710 F.3d at 1282. Because our

law at the time of Finley’s plea hearing established that what would eventually

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become known as a Rehaif-based objection would fail, see United States v. Reed,

941 F.3d 1018, 1020–21 (11th Cir. 2019), Finley’s counsel was not deficient for

failing to raise such an objection.

B

Finley next contends that his lawyer provided ineffective assistance by

failing to notify the district court of a change in the law regarding penalty

enhancements for repeat offenders under the First Step Act of 2018.

If a defendant faces a charge under 21 U.S.C. § 841 and has previously been

convicted of a serious drug felony, the government may file a notice for enhanced

penalties under 21 U.S.C. § 851. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)–(B),

851(a)(1). Section 401 of the First Step Act changed the nature of the predicate

felonies that could be used to apply these enhanced penalties for repeat offenders.

See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Specifically, the

First Step Act added two new requirements for an offense to qualify as a serious

drug felony: (1) “the offender [must have] served a term of imprisonment of more

than 12 months”; and (2) the offender must have been released no more than 15

years before the instant offense. Id. § 401(a)(1).

Finley’s counsel was not deficient for failing to raise this change in the rules

under the First Step Act. This issue was not relevant to sentencing, as the

government explicitly did not seek an enhancement in this case. Finley, however,

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alleges that “[a] judge who has disfavor for a defendant . . . may consider the

government’s decision not to invoke the enhancement as a justification for the

court to apply an upward departure from the sentencing guidelines.” Even

assuming that is true, the judge here explicitly stated his reasons for varying above

the recommended Sentencing Guidelines range, none of which related to the

considerations underlying the First Step Act—rather, the judge’s rationale was

rooted in the serious nature of Finley’s crimes.1 Accordingly, Finley’s counsel was

not ineffective as to this issue.

II

A

We next consider whether Finley’s indictment and conviction are invalid in

light of the Supreme Court’s ruling in Rehaif.

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

review only for plain error. See United States v. Peters, 403 F.3d 1263, 1270 (11th

Cir. 2005). Indeed, “[e]ven where a new rule of law is at issue . . . a court of

appeals [may not] overlook a failure to object unless” there is plain error.

Henderson v. United States, 568 U.S. 266, 272 (2013). A party may establish plain

1
The district court noted that Finley had (1) “threatened to shoot children and a witness”; (2)
“possessed drugs”; (3) “possessed a [stolen] high-capacity rifle with a 30-round clip in it”; (4)
had a number of previous convictions pertaining to illegal firearm and drug possession; (5) had
multiple domestic violence convictions; and (6) displayed a pattern of disorderly conduct
towards law enforcement officers.
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error by showing that there was “an error, that is plain, which affects substantial

rights.” United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014).

“Substantial rights are affected if there is a reasonable probability of a different

result absent the error.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir.

2015). Where a defendant challenges a conviction after pleading guilty, he “must

show a reasonable probability that, but for the error, he would not have entered the

plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). “A defendant

must thus satisfy the judgment of the reviewing court, informed by the entire

record, that the probability of a different result is ‘sufficient to undermine

confidence in the outcome’ of the proceeding.” Id. (quoting Strickland, 466 U.S.

at 694).

Additionally, we should not correct a plain error unless it “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Haynes, 764

F.3d at 1308 (quotation omitted). And where a defendant fails to establish one

element of plain-error review, we need not assess the remaining elements. See

United States v. Candelario, 240 F.3d 1300, 1312 (11th Cir. 2001).

B

Section 922(g)(1) provides that it is “unlawful for any person . . . who has

been convicted in any court of, a crime punishable by imprisonment for a term

exceeding one year” to “possess in or affecting commerce, any firearm or

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ammunition.” Section 924(a)(2) provides that any person who “knowingly

violates” § 922(g) may be punished by up to ten years in prison. In Rehaif, the

Supreme Court concluded that the word “knowingly” in § 924(a)(2) modifies the

elements of § 922(g) so that “in a prosecution under 18 U.S.C. § 922(g) and §

924(a)(2), the Government 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, 139 S. Ct. at 2195–96, 2200.

We recently held that a defendant’s indictment that failed to charge him with

knowing his prohibited status when possessing a firearm was a plain error in light

of Rehaif. Reed, 941 F.3d at 1021 (“[The defendant] has established errors in his

indictment and at his trial that Rehaif made plain.”). But, in Reed, we held that

because the defendant there had been convicted of multiple felonies, had stipulated

to his status as a felon, and had testified “that he knew he was not supposed to have

a gun,” he couldn’t “prove that the errors affected his substantial rights or the

fairness, integrity, or public reputation of his” judicial proceedings. Id. at 1021–

22.

Here, for at least three reasons, we need not vacate Finley’s guilty plea or

conviction. First, we have held that voluntary and intelligent guilty pleas are not

rendered involuntary or unintelligent by subsequent judicial decisions but are

enforceable unless a provision in the plea agreement states otherwise. See United

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States v. Sanchez, 269 F.3d 1250, 1284–86 (11th Cir. 2001) (en banc) (rejecting

defendants’ arguments, in the wake of Apprendi v. New Jersey, 530 U.S. 466

(2000), that their guilty pleas were invalidated by a change in the law), abrogated

on other grounds by United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005).

Second, Finley has not shown that he would have pleaded not guilty but for the

error, as he fails to offer arguments on that issue. And third, even if Finley had

asserted that he would not have pled guilty but for the Rehaif error, the record

sufficiently establishes that Finley knew of his status as a convicted felon based on

the nature of the offenses for which he was previously convicted, and he answered

in the affirmative when asked at his plea hearing whether he was “aware as a felon

[that he was] not allowed to possess any weapons.” Thus, these errors did not

affect Finley’s substantial rights.

III

Finally, we consider Finley’s argument that 18 U.S.C. § 922(g) is

unconstitutional because it exceeds Congress’s power under the Commerce Clause.

“We review a district court’s conclusions as to the constitutionality of a challenged

statute de novo.” United States v. Eckhardt, 466 F.3d 938, 943 (11th Cir. 2006).

“[O]nly the Supreme Court or this Court sitting en banc can judicially overrule a

prior panel decision.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir.

2004).

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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

repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of

Congress’s power under the Commerce Clause because it contains an express

jurisdictional requirement.” United States v. Jordan, 635 F.3d 1181, 1189 (11th

Cir. 2011). “The jurisdictional requirement is satisfied when the firearm in

question has a ‘minimal nexus’ to interstate commerce,” and § 922(g)(1) is “not

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

if “the firearm in question . . . travelled in interstate commerce.” Id. (internal

quotation marks and citations omitted).

Here, there is no error because, as Finley concedes, binding precedent

forecloses his arguments regarding the Commerce Clause. See id. And, in any

event, § 922(g) was not unconstitutionally applied in Finley’s case because he

admitted in his plea agreement that his gun and ammunition moved through

interstate commerce, which is a sufficient nexus.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4513019. Public record. Not legal advice.