United States v. Rozier

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 4, 2010

No. 08-17061

JOHN LEY

________________________

CLERK

D. C. Docket No. 08-60103-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER ROZIER,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 4, 2010)

Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:

*

Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,

sitting by designation.

Christopher Rozier appeals his conviction and sentence under 18 U.S.C. §

922(g)(1) for possession of a firearm and ammunition by a convicted felon. Rozier

challenges the constitutionality of the statute and his sentence. We find that United

States Supreme Court and Eleventh Circuit precedent clearly states that both

Rozier’s conviction and sentence are constitutional. Therefore, we affirm.

I.

Christopher Rozier has spent a considerable part of his life in the criminal

justice system. The result of this life experience is that by October 13, 2007,

Rozier was a convicted felon with several felony drug convictions to his credit.1

One of the collateral consequences of being convicted of a state or federal felony is

that felons are precluded by federal law from possessing any type of firearm.2 On

October 13, 2007, Rozier violated this prohibition.

It was on that day that Eenie Austin, the mother of Rozier’s child, arrived at

Rozier’s house in Pompano Beach, Florida. Austin found Rozier and his current

girlfriend, Erica Williams, in a heated argument wherein Williams was holding a

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On October 18, 2001, Rozier pled guilty to: Delivery of Cocaine (offense date of June

29, 2001); two counts of Delivery of Cocaine (offense date of July 27, 2001); and Delivery of

Cannabis (offense date of July 27, 2001). On January 6, 2004, Rozier pled guilty to Possession

of Cocaine (offense date of October 15, 2003).

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“It shall be 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 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).

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butcher knife to Rozier. At some point, Austin and Rozier began to argue, and

Austin hit Rozier in the face with a cement statue. Rozier responded by pulling out

a handgun. Rozier claims the handgun was for self-defense.

The Broward County Sheriff’s Office executed a search warrant on Rozier’s

house later that day. Upon searching the residence, deputies discovered crack

cocaine, marijuana, $7,000, and ammunition. A .38 caliber revolver was found

buried in a shallow hole in the backyard. Rozier was subsequently convicted of

possession of a firearm and ammunition by a convicted felon pursuant to 18 U.S.C.

§ 922(g)(1). Rozier appeals his conviction and sentence.

II.

Challenges to the constitutionality of a statute are reviewed de novo. See

United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009) (citation omitted).

Rozier’s constitutional challenges to his sentence are reviewed de novo. See

United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005).

III.

A. Section 922(g)(1) is Constitutional

Rozier challenges his conviction on the grounds that § 922(g)(1) is an

unconstitutional invasion upon his Second Amendment right to bear arms. Rozier

relies on the Supreme Court’s recent ruling in District of Columbia v. Heller,

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wherein the Court held that “the Second Amendment conferred an individual right

to keep and bear arms.” 554 U.S. __ , 128 S. Ct. 2783, 2799 (2008). Heller was a

law enforcement officer in the District of Columbia who was allowed to carry a

handgun while on duty. Id. at 2788. However, Heller was not allowed to register a

handgun to keep in his D.C. home because of D.C.’s strict bar on handguns.3 Id.

The Supreme Court held that D.C.’s complete ban on handgun possession in the

home, by law-abiding citizens, was an unconstitutional infringement of the Second

Amendment that would not survive any level of scrutiny.4 Id. at 2817–18.

One of the major thrusts of the Court’s ruling was “the inherent right of self-

defense . . . central to the Second Amendment right.” Id. at 2817. Rozier argues

that his case parallels the facts in Heller, in that his possession of a handgun was in

the home and for the purposes of self-defense. For the purposes of this appeal, we

accept Rozier’s assertion that he possessed the handgun for self-defense; however,

the motive behind Rozier’s possession of the handgun is irrelevant. We find 18

U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses a firearm purely

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D.C. effectively prohibited its residents from legally keeping handguns in their homes

by requiring all firearms to be registered but then denying all handgun registration applications.

Heller, 128 S. Ct. at 2788.

4

“Under any of the standards of scrutiny that we have applied to enumerated

constitutional rights, banning from the home the most preferred firearm in the nation to keep and

use for protection of one’s home and family would fail constitutional muster.” Heller, 128 S. Ct.

at 2817–18 (citation and internal quotation marks omitted).

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for self-defense.

“Like most rights, the right secured by the Second Amendment is not

unlimited.” Id. When issuing its ruling and settling the actual case and

controversy at issue, Heller stated, “[a]ssuming that Heller is not disqualified from

the exercise of Second Amendment rights, the District must permit him to register

his handgun and must issue him a license to carry it in the home.” Id. (emphasis

added). This indicates that the first question to be asked is not whether the

handgun is possessed for self-defense or whether it is contained within one’s home,

rather the initial question is whether one is qualified to possess a firearm. In

Rozier’s case, the most relevant modifier, as to the question of qualification, is

“felon.”

Prior to taking into account Rozier’s purpose for possessing the handgun, we

must determine whether he is qualified to possess a handgun. Rozier’s Second

Amendment right to bear arms is not weighed in the same manner as that of a law-

abiding citizen, such as the appellant in Heller. While felons do not forfeit their

constitutional rights upon being convicted, their status as felons substantially

affects the level of protection those rights are accorded.5

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See McKune v. Lile, 536 U.S. 24, 38, 122 S. Ct. 2017, 2027 (2002) (“[L]awful

conviction and incarceration necessarily place limitations on the exercise of a defendant’s

privilege against self-incrimination.”); Jones v. Helms, 452 U.S. 412, 419, 101 S. Ct. 2434, 2440

(1981) (the fundamental right to travel may be restricted, such as when “a person has been

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The Court made this clear when it referred to those “disqualified from the

exercise of Second Amendment rights.” Id. Heller stated that “nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons . . . .”6 Id. This language suggests that statutes

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

not offend the Second Amendment. Recently, in United States v. White, we held

that Heller recognized § 922(g)(1) as “a presumptively lawful longstanding

prohibition.” White, 11th Cir. 2010, __ F.3d __, *5 (No. 08-16010, January 11,

2010).

Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a

constitutional avenue to restrict the Second Amendment right of certain classes of

convicted of a crime within a State.”); Bell v. Wolfish, 441 U.S. 520, 545–46, 99 S. Ct. 1861,

1877 (1979) (“[S]entenced prisoners enjoy freedom of speech and religion . . . they are protected

against invidious discrimination on the basis of race . . . they may claim the protection of the

Due Process Clause.” However, “[l]awful incarceration brings about the necessary withdrawal

or limitation of many privileges and rights, a retraction justified by the considerations underlying

our penal system.” (citation omitted)); Richardson v. Ramirez, 418 U.S. 24, 54–56, 94 S. Ct.

2655, 2671 (1974) (finding that a state law disenfranchising felons was constitutional because

the Fourteenth Amendment affirmatively sanctions, but does not mandate, disenfranchisement

on the basis of criminal conviction).

6

Rozier argues that this language in Heller is merely dicta and we should not give it full

weight of authority. First, to the extent that this portion of Heller limits the Court’s opinion to

possession of firearms by law-abiding and qualified individuals, it is not dicta. See Denno v.

Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1283 (11th Cir. 2000) (“Dictum may be defined as

a statement not necessary to the decision and having no binding effect.” (emphasis added)).

Second, to the extent that this statement is superfluous to the central holding of Heller, we shall

still give it considerable weight. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4

(11th Cir. 1997) (“[D]icta from the Supreme Court is not something to be lightly cast aside.”).

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people. Rozier, by virtue of his felony conviction, falls within such a class.

Therefore, the fact that Rozier may have possessed the handgun for purposes of

self-defense (in his home), is irrelevant.

B. Rozier Was Properly Sentenced by the District Court

Rozier was sentenced to 210 months’ imprisonment for violation of §

922(g)(1). According to 18 U.S.C. § 924(a)(2), the basic maximum sentence for a

violation of § 922(g)(1) is 120 months’ imprisonment. However, Rozier had

previously been convicted of at least three serious drug offenses on different

occasions, and “[i]n the case of a person who violates section 922(g)(1) of this title

and has three previous convictions . . . for a . . . serious drug offense, . . . such

person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

Rozier argues that because these prior convictions were not included within the

indictment, nor proven to a jury, any sentence over the 120-month maximum of §

924(a)(2) is unconstitutional. This argument runs contrary to the established law

of the Supreme Court and this Circuit. See Almendarez-Torres v. United States,

523 U.S. 224, 230–35, 118 S. Ct. 1219, 1224–26 (1998) (concluding that

subsections such as § 924(e)(1), which substantially increase the maximum penalty

for persons with prior convictions, are penalty provisions and do not define a

separate crime that must be proven beyond a reasonable doubt to a jury). Thus, it

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was enough that the district judge, at sentencing, found that Rozier had in fact been

convicted of three or more prior serious drug offenses.

Rozier also contends that his sentence was in error because the district judge

sentenced him to more than fifteen years’ imprisonment. Rozier argues §

924(e)(1) must be interpreted to have a maximum sentence of fifteen years because

it does not explicitly state a maximum sentence, but rather only says “not less than

fifteen years.” However, we have ruled directly on this subject and found that the

maximum penalty, for convictions covered by the § 924(e) sentencing

enhancement, is life imprisonment. United States v. Brame, 997 F.2d 1426, 1429

(11th Cir. 1993). We find no merit to this argument.

IV.

We find § 922(g)(1) is a constitutional restriction on Rozier’s Second

Amendment right. The circumstances surrounding Rozier’s possession of a

firearm in violation of § 922(g)(1) are irrelevant. Finally, Rozier’s sentence was

constitutional and in accord with our precedent.

AFFIRMED.

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