United States v. Michael Lee Williams

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10038

Non-Argument Calendar

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D.C. Docket No. 8:18-cr-00310-CEH-SPF-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL LEE WILLIAMS,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 17, 2021)

Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:

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Michael Williams pleaded guilty to possession of a firearm and ammunition,

in violation of 18 U.S.C. § 922(g), and was sentenced under the Armed Career

Criminal Act (“ACCA”) to 120 months’ imprisonment. On appeal, he argues that

(1) the district court plainly erred in not finding 18 U.S.C. § 922(g)

unconstitutional, both facially and as applied, because the statute exceeds

Congress’s authority under the Commerce Clause; (2) the district court erred in

applying the ACCA enhancement because his prior Florida drug convictions did

not qualify as “serious drug offenses”; (3) the district court plainly erred by relying

on Shepard-approved 1 documents to determine whether the predicate offenses

occurred on different occasions; and (4) the government’s failure to allege the

existence of his prior convictions in the indictment and prove them beyond a

reasonable doubt violated Williams’s Fifth and Sixth Amendment rights. After

review, we affirm.

I. Background

In 2018, a grand jury in the Middle District of Florida indicted Williams on

one count of possession of a firearm by a convicted felon, in violation of

§§ 922(g), 924(e). Williams pleaded guilty pursuant to a written plea agreement.

1

Shepard v. United States, 544 U.S. 13 (2005).

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According to his presentence investigation report (“PSI”), Williams

qualified as an armed career criminal under the ACCA based on the following

prior Florida drug convictions, which qualified as serious drug offenses for

purposes of the ACCA: (1) a 1999 conviction for sale/delivery of cocaine, in

violation of Fla. Stat. § 893.13(1)(a); (2) a 2004 conviction for sale/delivery of

cocaine, in violation of Fla. Stat. § 893.13(1)(a); and (3) a 2008 conviction for

possession of cocaine with intent to sell or deliver, in violation of Fla. Stat.

§ 893.13(1)(a). Attached to the PSI were official copies of the state charging

documents and judgments that had been supplied by the government. Williams

objected, arguing in relevant part that none of his Florida drug convictions

qualified as serious drug offenses because the Florida statute lacks a mens rea

requirement.2

Prior to sentencing, the government filed a motion for a downward departure

due to Williams’s substantial assistance to the government, pursuant to U.S.S.G.

§ 5K1.1. The government requested a two-level reduction because Williams had

provided truthful and timely information that resulted in the identification and

eventual conviction of another defendant.

2

Williams’s guideline range was 188 to 235 months’ imprisonment, with a statutory

minimum term of 15 years’ imprisonment and a maximum term of life imprisonment.

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At the sentencing hearing, the district court overruled Williams’s objection

to the ACCA enhancement and concluded that all three of Williams’s prior Florida

drug convictions qualified as serious drug offenses under this Circuit’s precedent.

The district court granted the U.S.S.G. § 5K1.1 motion for a downward departure

based on substantial assistance and departed five levels (as opposed to the two

levels requested by the government) because Williams and his family had received

numerous threats as a result of his cooperation, and the information he provided

was truthful and resulted in a conviction. The district court then sentenced

Williams to 120 months’ imprisonment to be followed by 5 years’ supervised

release.3 This appeal followed.

II. Discussion

1. Whether 18 U.S.C. § 922(g)(1) is unconstitutional facially or as

applied to Williams’s case

Williams argues that his conviction should be vacated because § 922(g)(1) is

unconstitutional, facially and as applied, because it exceeds Congress’s authority

under the Commerce Clause,4 U.S. Const. art. I, § 8, cl. 3. He contends that the

3

Because the government filed a U.S.S.G. § 5K1.1 motion for a downward departure

based on substantial assistance, the district court was authorized to depart from the 15-year

mandatory minimum term required under the ACCA. See United States v. Simpson, 228 F.3d

1294, 1304 (11th Cir. 2000).

4

Williams acknowledges that we have rejected repeatedly similar constitutional

challenges to § 922(g), but he seeks to preserve these arguments for further review.

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Commerce Clause does not permit Congress to criminalize the intrastate

possession of a firearm and ammunition simply because the items crossed state

lines at some point in the past, citing United States v. Lopez, 514 U.S. 549 (1995),

and United States v. Morrison, 529 U.S. 598 (2000). Further, he asserts that the

statute is unconstitutional as applied to his case because the government did not

establish any connection between his possession of the firearm and interstate

commerce.

We generally review the constitutionality of a statute de novo but where, as

here, the issue is raised for the first time on appeal, we review only for plain error.

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

plain error review, a defendant “must show that the district court made an error,

that the error was plain, and that it affected his substantial rights.” United States v.

Iriele, 977 F.3d 1155, 1177 (11th Cir. 2020). If he makes that showing, we have

discretion to reverse the district court “only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

Section 922(g)(1) makes it 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 rejected the identical Commerce Clause

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argument challenging the facial constitutionality of § 922(g) that Williams makes

here. See United States v. Johnson, 981 F.3d 1171, 1192 (11th Cir. 2020) (holding

that Eleventh Circuit precedent foreclosed the argument that the felon-in-

possession statute was unconstitutional, facially and as applied, under the

Commerce Clause); United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011)

(“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. Scott, 263 F.3d 1270, 1271–

74 (11th Cir. 2001) (holding that the Supreme Court decisions in Lopez, Jones v.

United States, 529 U.S. 848 (2000), and Morrison had not modified or overturned

Eleventh Circuit precedent upholding the felon-in-possession statute under

Congress’s Commerce Clause Power).

Similarly, we have also held that § 922(g)(1) is not unconstitutional as

applied to a defendant where there was evidence that the firearm and ammunition

were manufactured outside of the state where the offense took place because such

evidence is sufficient to satisfy the minimal-nexus requirement. Wright, 607 F.3d

at 715–16 (holding that § 922(g) was constitutional as applied because the

“government established that the firearms involved in Wright’s offense were

manufactured outside of Florida, the state in which the offense took place,” which

meant that “the firearms necessarily traveled in interstate commerce and therefore

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satisfied the minimal nexus requirement”). The factual basis included in

Williams’s plea agreement established that both the firearm and the ammunition

were manufactured outside of Florida, the state in which the offense took place.

Thus, the minimal-nexus requirement was satisfied in this case. Id.

Accordingly, Williams’s facial and as applied challenges to the

constitutionality of § 922(g) are foreclosed by binding precedent. United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that under the

prior-panel-precedent rule, “a prior panel’s holding is binding on all subsequent

panels unless and until it is overruled or undermined to the point of abrogation by

the Supreme Court or by this Court sitting en banc”).

2. Whether Williams’s prior Florida drug convictions qualify as serious

drug offenses for purposes of the ACCA

Williams argues that his post-2002 Florida drug convictions do not qualify

as serious drug offenses under the ACCA because Florida Statute § 893.13(1)(a)

does not require proof of a mens rea element. He acknowledges that this claim is

foreclosed our decision in United States v. Smith, 775 F.3d 1262, 1268 (11th Cir.

2014), but he seeks to preserve this issue for further review.

We review de novo whether a conviction qualifies as a serious drug offense

under the ACCA. United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016).

The ACCA mandates a minimum 15-year sentence if a defendant convicted of

being a felon in possession of a firearm under 18 U.S.C. § 922(g) has three or more

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prior convictions for a “violent felony” and/or “a serious drug offense.” 18 U.S.C.

§ 924(e)(1). The ACCA defines a “serious drug offense,” in relevant part, as: “an

offense under State law, involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance (as defined in section

102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term

of imprisonment of ten years or more is prescribed by law.” 18 U.S.C.

§ 924(e)(2)(A)(ii).

As Williams correctly acknowledges, his claim is foreclosed by binding

precedent. See Smith, 775 F.3d at 1267–68 (holding that drug crimes without an

element of mens rea could be serious drug offenses and that a prior conviction

under § 893.13 of the Florida Statutes was a serious drug offense for purposes of

the ACCA). Following Smith, the Supreme Court clarified that the ACCA’s

definition of a serious drug offense “requires only that the state offense involve the

conduct specified in the federal statute; it does not require that the state offense

match certain generic offenses,” and it affirmed the application of an ACCA

enhancement based on six prior convictions under Fla. Stat. § 893.13(1)(a). Shular

v. United States, ___ U.S. , 140 S. Ct. 779, 782, 787 (2020). In doing so, the

Supreme Court also noted that the petitioner “overstate[d] Florida’s disregard for

mens rea . . . under Fla. Stat. § 893.13(1)(a)” because “a defendant unaware of the

substance’s illicit nature can raise that unawareness as an affirmative defense, in

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which case the standard jury instructions require a finding of knowledge beyond a

reasonable doubt.” Id. at 787; see also United States v. Smith, 983 F.3d 1213, 1223

(11th Cir. 2020) (holding post-Shular that the argument that convictions under Fla.

Stat. § 893.13(1)(a) do not qualify as serious drug offenses because the state statute

lacks a mens rea element “is foreclosed by our Smith precedent and the Supreme

Court’s decision in Shular”). Consequently, Williams is not entitled to relief on

this claim. Archer, 531 F.3d at 1352.

3. Whether the district court plainly erred in determining that Williams’s

prior convictions occurred on occasions different from one another

Williams argues that the district court plainly erred by relying on

non-elemental facts to determine that his prior drug offenses occurred on different

occasions from one another for purposes of the ACCA. He argues that the dates of

the offense are not elements of Fla. Stat. § 893.13(1)(a), and, therefore, consistent

with Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States,

136 S. Ct. 2243 (2016), the district court could not have relied upon the dates (i.e.,

non-elemental facts) alleged in the state indictments to determine that the offenses

occurred on different occasions.

Because Williams failed to raise this argument in the district court, we

review only for plain error. See Wright, 607 F.3d at 715. A defendant who has at

least three prior qualifying predicate convictions for offenses “committed on

occasions different from one another” is subject to the ACCA. 18 U.S.C.

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§ 924(e)(1). As explained previously, Williams has three qualifying predicate

convictions. Thus, the only remaining question is whether the district court

properly determined that the offenses occurred on different occasions from one

another.

To qualify as offenses committed on different occasions from one another

under the ACCA, the offenses must be “temporally distinct” and arise from

“separate and distinct criminal episode[s].” United States v. Sneed, 600 F.3d 1326,

1329 (11th Cir. 2010) (quotation omitted). The government bears the burden of

proving by a preponderance of the evidence that the prior convictions “more likely

than not arose out of ‘separate and distinct criminal episode[s].’” United States v.

McCloud, 818 F.3d 591, 595–96 (11th Cir. 2016) (alteration in original) (quoting

Sneed, 600 F.3d at 1329).

As long as the district court limits itself to Shepard-approved sources, it

“may determine both the existence of prior convictions and the factual nature of

those convictions, including whether they were committed on different occasions,”

“based on its own factual findings.” United States v. Weeks, 711 F.3d 1255, 1259–

60 (11th Cir. 2013), abrogated on other grounds by Descamps, 570 U.S. 254; see

also United States v. Overstreet, 713 F.3d 627, 635–36 (11th Cir. 2013) (reiterating

that “a district court ‘ha[s] the authority to apply the ACCA enhancement based on

its own factual findings’ that the defendant’s offenses were committed on

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occasions different from one another” (alteration in original) (quotations omitted));

Sneed, 600 F.3d at 1332–33 (holding that, when making the different-occasions

determination, the district court is limited to Shepard-approved sources). Shepard-

approved documents include the “charging document, the terms of a plea

agreement or transcript of [plea] colloquy between judge and defendant in which

the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” Shepard, 544 U.S. at 16, 26.

Furthermore, in determining whether a defendant’s prior convictions were

committed on different occasions from one another, a district court may rely on

“non-elemental facts” contained in the Shepard-approved sources. See United

States v. Longoria, 874 F.3d 1278, 1282–83 (11th Cir. 2017).

Here, the district court did not plainly err in determining that Williams’s

prior offenses occurred on different occasions from one another because the

Shepard-approved state charging documents proffered by the government in the

district court proceeding confirmed that the offenses in question occurred on

different occasions from one another. Specifically, the charging information for

Williams’s 1999 case for the sale/delivery of cocaine alleged that the offense

occurred “on or about” May 5, 1999. The charging information in Williams’s

2003 case for sale/delivery of cocaine alleged that the offense occurred on

November 6, 2002. And the charging information in Williams’s 2007 case for

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possession of cocaine with intent to sell alleged that the offense occurred “on or

about April 3, 2007.” Because the Shepard-approved sources established that the

offenses occurred on different occasions from one another, the district court did not

plainly err in imposing the ACCA enhancement. Longoria, 874 F.3d at 1282–83;

Archer, 531 F.3d at 1352.

Williams argues that Longoria was wrongly decided and that, under

Descamps and Mathis, the district court may not consider non-elemental facts in

conducting the different-occasions inquiry. Williams’s reliance on Descamps and

Mathis is misplaced. Both Descamps and Mathis concerned when a district court

may apply the modified categorical approach to ascertain whether a conviction

qualifies as an ACCA violent felony predicate—an inquiry not at issue in this case.

Mathis, 136 S. Ct. 2253; Descamps, 570 U.S. at 257–58. Neither case addressed

the second inquiry required by the ACCA—whether the qualifying predicate

offenses were committed on different occasions from one another. See generally

Mathis, 136 S. Ct. 2253; Descamps, 570 U.S. at 257–58. Therefore, Descamps and

Mathis have no bearing on this case. 5

5

To the extent that Williams argues that Descamps and Mathis abrogated our precedent

regarding the different-occasions inquiry, his argument is unavailing. In order to conclude that

we are not bound by a prior holding in light of a Supreme Court case, we must find that the case

is “clearly on point” and that it “actually abrogate[s] or directly conflict[s] with, as opposed to

merely weaken[s], the holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255

(11th Cir. 2009). Neither Descamps nor Mathis is clearly on point as neither case deals with the

different-occasions inquiry. See generally Mathis, 136 S. Ct. 2253; Descamps, 570 U.S. at 257–

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4. Whether the government’s failure to indict and prove beyond a

reasonable doubt that Williams had three prior convictions for a

serious drug offense that were committed on different occasions from

one another violates the Fifth and Sixth Amendment

Williams argues that the ACCA enhancement violates his Fifth and Sixth

Amendment rights because the government did not charge in the indictment and

prove beyond a reasonable doubt that he had three prior convictions that qualified

as serious drug offenses and that were committed on different occasions from one

another. Because Williams failed to make this argument below, we review this

claim only for plain error. Wright, 607 F.3d at 715.

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

sentencing enhancement purposes, a judge, rather than a jury, may determine “the

fact of an earlier conviction.” 523 U.S. 224, 226–27 (1998). Thereafter, in

Apprendi v. New Jersey, the Supreme Court held that, under the Due Process

Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth

Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000).

Nevertheless, as is evident from the language of Apprendi’s holding, Apprendi did

not alter the pre-existing rule from Almendarez–Torres. Subsequently, in Alleyne

58. Accordingly, neither case abrogated our prior precedent on the different-occasions inquiry

for purposes of the ACCA. Kaley, 579 F.3d at 1255.

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v. United States, the Supreme Court extended Apprendi and held that any facts that

increase a mandatory minimum sentence must be submitted to a jury and proved

beyond a reasonable doubt. 570 U.S. 99, 116 (2013). But in so holding, the

Supreme Court expressly declined to alter the Almendarez–Torres rule. Id. at 111

n.1 (“Because the parties do not contest [the] vitality [of Almendarez-Torres], we

do not revisit it for purposes of our decision today.”). Thus, Almendarez–Torres

remains a narrow exception to Apprendi’s general rule for the fact of a prior

conviction, and “we are bound to follow Almendarez-Torres unless and until the

Supreme Court itself overrules that decision.” Smith, 775 F.3d at 1266 (quotation

omitted).

Accordingly, we have rejected repeatedly the Fifth and Sixth Amendment

challenge advanced by Williams. The law is clear that a defendant’s prior

convictions do not have to be alleged in the indictment nor proven to the trier of

fact beyond a reasonable doubt. See, e.g., United States v. Deshazior, 882 F.3d

1352, 1358 (11th Cir. 2018) (rejecting argument that ACCA-enhanced sentence

was unconstitutional because the defendant’s prior convictions were not alleged in

the indictment nor proved beyond a reasonable doubt); Smith, 775 F.3d at 1266

(“Neither the Fifth Amendment nor the Sixth Amendment prevents the district

court from finding the fact of [the defendant]’s prior convictions, or using them to

designate him an Armed Career Criminal. . . . The Constitution does not require

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that the government allege in its indictment and prove beyond a reasonable doubt

that [the defendant] had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence.” (alterations adopted)); Weeks,

711 F.3d at 1259 (“[W]e have consistently held that Almendarez–Torres remains

good law, and . . . [w]e have also expressly rejected the notion that the ACCA’s

different-occasions determination . . . must be submitted to a jury and proven

beyond a reasonable doubt.”). Accordingly, Williams’s claim is foreclosed by

binding precedent and he cannot show plain error. Smith, 775 F.3d at 1266;

Archer, 531 F.3d at 1352.

III. Conclusion

For the above reasons, we affirm Williams’s conviction and sentence.

AFFIRMED.

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