The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 29, 2008
No. 07-15811 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00065-CR-ORL-22KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD RAY HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 29, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Donald Ray Harris appeals his conviction for possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g)(1) and his 240-month sentence under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We affirm Harris’
conviction and sentence.
I.
Harris was arrested after a neighbor observed him firing a
semiautomatic rifle at a house in Mims, Florida. At trial, the government presented
evidence that the rifle was made in Romania, imported by Century Arms
International of Vermont, and found in Harris’ possession in Florida. The
ammunition Harris used was manufactured in Winchester, Illinois. Harris
stipulated that he was a convicted felon, and the jury convicted him of possessing a
firearm in violation of 18 U.S.C. § 922(g)(1).
The Pre-sentence Investigation Report (PSI) recommended that the court
sentence Harris as an armed career criminal under 18 U.S.C. § 924(e). To qualify
as an armed career criminal, a defendant must have three prior convictions for
violent felonies or serious drug offenses, each of which occurred on a separate
occasion. According to this rubric, the district court found that Harris had two
convictions for selling cocaine and one under Fla. Stat. § 800.04(3) for sexual
battery on a child under the age of sixteen. The government proved these crimes
by submitting certified copies of Harris’ convictions, which were based on guilty
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pleas, to the district court. The district court then concluded that the sexual battery
charge was a “violent felony” within the meaning of § 924(e) and sentenced Harris
as an armed career criminal.
The ACCA provision that the district court relied on established a statutory
minimum sentence of fifteen years. Under the sentencing guidelines, Harris’ range
was 262–327 months. The district court departed from the guidelines under United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and sentenced Harris to 240
months’ imprisonment.
Harris brings four challenges to his conviction and sentence. He contends
that: (1) his conviction under Fla. Stat. § 800.04(3) is not a violent felony and thus
not a predicate offense under the ACCA; (2) that the district court violated his
Sixth Amendment rights by sentencing him under the ACCA based on prior
convictions that were not proven to a jury beyond a reasonable doubt; (3) that his
conviction violates the Due Process and Commerce clauses because there was
insufficient evidence to establish a nexus between the firearm and interstate
commerce; and (4) that 18 U.S.C. § 922(g) is unconstitutional on its face because it
is not limited to interstate commerce and because it exceeds the scope of Congress’
power under the Commerce clause.
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II.
Harris contends that his conviction for sexual battery of a child under Fla.
Stat. § 800.04(3) is not a violent felony within the meaning of § 924(e). Therefore,
Harris argues, ACCA should not apply to his case, and he should be sentenced
under § 924(a)(2), which carries a ten-year statutory maximum. We review de
novo the district court’s conclusion that a particular offense is a violent felony
under 18 U.S.C. § 924(e). United States v. Day, 465 F.3d 1262, 1264 (11th Cir.
2006).
In determining whether Fla. Stat. § 800.04(3) describes a violent felony, we
must use a “formal categorical approach” in which we examine only the statutory
definition of the offense and not the particular facts on which Harris’ conviction
was based. See Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159
(1990) (“The Courts of Appeals uniformly have held that § 924(e) mandates a
formal categorical approach, looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those convictions. . . . We find
the reasoning of these cases persuasive.”). Thus, the proper question is whether the
act prohibited by Fla. Stat. § 800.04(3) is a violent felony.
We must first determine whether Harris was convicted under the version of
§ 800.04(3) that was effective before October 1990 or the version effective
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between 1990 and 1996, when Harris was charged and convicted. The 1996
version of § 800.04(3) stated:
800.04. Lewd, lascivious, or indecent assault or act upon or in presence of
child
Any person who:
...
(3) Commits any act defined as sexual battery under s. 794.011(1)(h) upon
any child under the age of 16 years . . . is guilty of a felony of the second
degree. . .
Fla. Stat. § 800.04(3) (1990–1996).
But Harris argues that there is no evidence in the record as to when his crime
occurred. Harris then argues that, if the crime happened before October 1, 1990,
his 1996 conviction could be based on the pre-October 1990 version of Fla. Stat. §
800.04(3). That version stated:
800.04. Lewd, lascivious, or indecent assault or act upon or in presence of
child; sexual battery
Any person who:
...
(2) Commits an act defined as sexual battery under s. 794.011(1)(h) upon
any child under the age of 16 years; or
(3) Knowingly commits any lewd or lascivious act in the presence of any
child under the age of 16 years . . . is guilty of a felony of the second degree.
Fla. Stat. § 800.04 (1989). The government submitted only Harris’ judgment of
conviction to the district court. That judgment, dated August 19, 1996, lists the
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crime as “sexual act with a child under 16 years of age” and cites § 800.04(3).
Without more evidence that the 1996 statute applied, Harris argues that the 1990
version, which he further contends did not qualify as a violent felony, may have
been what the 1996 Florida court used.
It is clear from the record that Harris was convicted under the 1996 version
of § 800.04(3). In his arguments to the district court Harris repeatedly referred to
his crime as “statutory rape.” That description, while fitting § 800.04(3)
(1990–1996), is inconsistent with § 800.04(3) (pre-1990), which refers simply to
lewd or lascivious acts in the presence of a child. Harris’ description of his crime
as “statutory rape” describes pre-1990 § 800.04(2), not § 800.04(3). Yet the 1996
judgment form clearly notes the offense as falling under § 800.04(3), and also
describes it as “sexual act with a child under 16 years of age.” That description
also comports far better with the 1990–1996 version of § 800.04(3) than the pre-
1990 one. Finally, we observe that Harris has never outright claimed that the
actual offense occurred before October 1990— he claims only that it might have.
Thus Harris has given us no good reason to doubt what appears to be obvious: that
the 1996 court’s undated statutory citation and corroborating description refer to
the version of the statute effective at that time.
Violating the 1996 version of Fla. Stat. § 800.04(3) is a violent felony under
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ACCA, 18 U.S.C. § 924(e)(2)(B). Section 924(e)(2)(B) defines “violent felony” as
any felony that: “(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or (ii) is a burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . .” We have held that “[t]he
plain meaning of ‘physical force’ is power, violence, or pressure directed against a
person consisting in a physical act.” United States v. Griffith, 455 F.3d 1339, 1342
(11th Cir. 2006) (quotation omitted). Physical force is a minimal requirement
satisfied by physical contact, which cannot be achieved without some degree of
Newtonian force. Id. at 1342. Congress did not insert the term “violent” into its
description of physical force, and neither will we. Id. at 1343–45.
United States v. Young, 527 F.3d 1274 (11th Cir. 2008), is instructive. In
Young, we held that a violation of Fla. Stat. § 784.085, “Battery of child by
throwing, tossing, projecting, or expelling certain fluids or materials,” qualified as
a crime of violence under U.S.S.G. § 4B1.2. 527 F.3d at 1277–78. U.S.S.G. §
4B1.2 is nearly identical to § 924(e)(2)(B), and our cases interpreting that
guideline “provide important guidance in determining what is a ‘violent felony’
under the ACCA.” United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007).
Fla. Stat. § 784.085(1) makes it “unlawful for any [adult] to knowingly cause or
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attempt to cause a child to come into contact with blood, seminal fluid, or urine or
feces by throwing, tossing, projecting, or expelling such fluid or material.” In
Young, we reasoned that:
[The actions outlawed by § 784.085(1)] require a physical act and are
directed against a person. Thus, the only remaining requirement for physical
force is that it involve “power, violence, or pressure.” . . . The impact of the
fluids against the child creates pressure and this minimal contact satisfies the
requirement of physical force. Therefore, we conclude that the offense is a
crime of violence.
527 F.3d at 1278. In other words, the act of intentionally ejaculating on a child,
even without any other physical touch, qualifies as a crime of violence under
statutory language identical to § 924(e)(2)(B)(i)’s “violent felony.”
By comparison, § 800.04(3) (1996) required that Harris “Commit[] any act
defined as sexual battery under § 794.011(1)(h) upon any child under the age of 16
years. . . .” Under § 794.011(1)(h), “Sexual battery means oral, anal, or vaginal
penetration by, or union with, the sexual organ of another.” Certainly, there is at
least as much physical contact involved in “oral, anal, or vaginal penetration by, or
union with [sexual organs]” as in “throwing, tossing, projecting, or expelling”
fluids. See § 794.011(1)(h); § 785.084(1). Accordingly, under this Court’s
minimal physical contact requirement, a violation of Fla. Stat. § 800.04(3) (1996)
is a violent felony. See also United States v. Ivory, 475 F.3d 1232, 1236 (11th Cir.
2007) (finding that statutory rape, as defined by Alabama law, is a crime of
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violence under § 4B1.2). Harris thus qualified for sentencing as an armed career
criminal under ACCA.1
III.
Harris contends that his 240-month sentence violates the Sixth Amendment
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because it
was based in part on his three prior felony convictions, none of which were proven
to the jury beyond a reasonable doubt. Whether the district court erred under
Apprendi is a question of law subject to de novo review. United States v.
Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001).
In Almendarez-Torres v. United States, 523 U.S. 224, 239–40, 118 S. Ct.
1219, 1228–29 (1998), the Supreme Court held that the government need not prove
a defendant’s prior convictions beyond a reasonable doubt in order for the district
court to use those convictions to enhance a sentence. See United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1315–16 (11th Cir. 2005). In Booker, 543
U.S. at 244, 125 S. Ct. at 756, the Supreme Court confirmed that Almendarez-
Torres applies to Sixth Amendment cases. Id. (“Any fact (other than a prior
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Harris’ arguments based on Begay v. United States, __ U.S. __, 128 S. Ct. 1581 (2008)
are not relevant because Begay explicitly addressed only § 924(e)(2)(B)(ii) (any felony that “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another”), not § 924(e)(2)(B)(i) (any felony
that “has as an element the use, attempted use, or threatened use of physical force against the
person of another.”). Thus, the Supreme Court’s holding that DUI was not a violent felony
under clause (ii) has no bearing on whether statutory rape is a violent felony under clause (i).
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conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.”)
(emphasis added).
Although Almendarez-Torres has been criticized, it has not been overruled
and we must follow it. See Camacho-Ibarquen, 410 F.3d at 1316 n.3; United
States v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005) (“[The Supreme Court’s]
conclusion was left undisturbed by Apprendi, Blakely, and Booker.”). Under
Almendarez-Torres, the district court did not violate Harris’ Sixth Amendment
rights by enhancing his sentence using his three prior violent felony convictions,
although they were not proved beyond a reasonable doubt to a jury.
IV.
Harris also contends that the government failed to establish a nexus between
his rifle and interstate commerce. Harris argues that though the government
demonstrated that the rifle traveled from Romania to Vermont to Florida, it
provided no evidence that the gun had ever been bought or sold. According to
Harris, his rifle therefore had no proven connection to interstate commerce.
Therefore, Harris argues, the district court erred in denying his motion for a
judgment of acquittal. We review sufficiency of the evidence challenges de novo,
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viewing the evidence in the light most favorable to the government. United States
v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000).
The offense Harris was convicted of requires the government to
demonstrate, beyond a reasonable doubt, that “any firearm or ammunition” was
“possess[ed] in or affecting commerce.” 18 U.S.C. § 922(g)(1); In re Winship, 397
U.S. 358, 362, 90 S. Ct. 1068, 1071 (1970) (the government must prove each
element beyond a reasonable doubt). More specifically, the government must
prove that “the firearm possessed traveled in interstate commerce.” United States
v. Scott, 263 F.3d 1270, 1274 (11th Cir. 2001).
United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir. 2001) controls. In
Dupree, we held that Ҥ 922(g) requires only a minimal nexus to interstate
commerce . . . and by brandishing a firearm that was manufactured in California
and found in his car [in Georgia], Dupree’s actions satisfy this test.” Here, the
government presented uncontradicted testimony that the rifle was made in
Romania, imported into Vermont, and found in Harris’ truck in Florida. Similarly,
Harris’ ammunition was manufactured in Illinois. Under Dupree, the government
has proved a minimal but sufficient nexus to interstate commerce. See 258 F.3d at
1260.
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V.
Finally, Harris contends that 18 U.S.C. § 922(g) is unconstitutional on its
face because although it states that felons may not “possess in or affecting
commerce, any firearm or ammunition,” it fails to specify interstate commerce in
that clause. Harris also argues that § 922(g) is unconstitutional because Congress,
in failing to require a substantial nexus to interstate commerce, acted outside of the
scope of its Commerce clause powers. Harris failed to raise these constitutional
objections before the district court, so we review them only for plain error. United
States v. Williams, 121 F.3d 615, 618 (11th Cir. 1997).
Harris’ arguments drown in a flood of precedent. As Harris admits, we have
specifically rejected both of his constitutional challenges to § 922(g), in United
States v. Nichols, 124 F.3d 1265 (11th Cir. 1997) (upholding § 922(g) against a
facial challenge based on the absence of the word “interstate”), and United States
v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (rejecting the argument that §
922(g) must require a substantial effect on interstate commerce). See also United
States v. DeLeon, 173 F.3d 494, 499 (5th Cir. 1999) (“[T]he constitutionality of §
922(g)(1) is not open to question.”); United States v. Chesney, 86 F.3d 564, 570
(6th Cir. 1996) (“In accordance with the prior decisions of the First, Second, Third,
Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits, we conclude
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that § 922(g)(1) is constitutional on its face under the Commerce Clause analysis
used by the Supreme Court in Lopez.”).
None of Harris’ arguments have merit. His conviction and sentence are
affirmed.
AFFIRMED.
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