United States v. Jamaal A. Hameen

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

Nos. 19-14279 & 22-12968

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMAAL A. HAMEEN,

a.k.a. Charles Flowers,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:18-cr-00115-MMH-JBT-1

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2 Opinion of the Court 19-14279

____________________

Before LUCK, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

Jamaal Abu Talib Hameen appeals his conviction and sen-

tence for possession of a firearm by a convicted felon. 1 First, he

argues that the district court erred in permitting him to proceed

pro se at sentencing without conducting a second Faretta 2 hear-

ing. Second, he argues that the district court abused its discretion

by finding that he had failed to show excusable neglect for his un-

timely Rehaif 3 motion for a judgment of acquittal or, in the alter-

native, for a new trial. Third, he contends that the omission of

the knowledge-of-status element from the indictment and jury

instructions constituted plain error that prejudiced his substantial

rights and infected the fairness, integrity, or public reputation of

the proceedings. Fourth, he contends that 18 U.S.C. § 922(g) is an

unconstitutional exercise of Congress’s authority under the

Commerce Clause. Fifth, Hameen contends that the district

court erred when it determined that his prior Florida conviction

for aggravated assault was a “violent felony” under the Armed

Career Criminal Act (“ACCA”) and a “crime of violence” under

1 We granted Hameen’s motion to consolidate appeal No. 22-12968

with his direct appeal, No. 19-14279.

2 Faretta v. California, 422 U.S. 806 (1975).

3 Rehaif v. United States, 139 S. Ct. 2191 (2019).

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19-14279 Opinion of the Court 3

the Sentencing Guidelines. Sixth, he contends that the district

court erred in determining that his prior Florida drug convictions,

pursuant to Fla. Stat. § 893.13, were “serious drug offenses” under

the ACCA and “controlled substance offenses” under U.S.S.G.

§ 2K2.1(a)(2). Finally, he contends that his ACCA-enhanced sen-

tence is unconstitutional.

I. DISCUSSION

A. Second Faretta Hearing

A district court’s conclusion that a defendant’s waiver of his

Sixth Amendment right to counsel was knowing and voluntary is

a mixed question of law and fact that we review de novo. United

States v. Garey, 540 F.3d 1253, 1268 (11th Cir. 2008) (en banc).

The government bears the burden of proving the waiver was val-

id in a case on direct appeal. Id. We review this de novo. United

States v. Hakim, 30 F.4th 1310, 1318 (11th Cir. 2022).

A defendant’s right to self-representation is implicit in the

Sixth Amendment. Faretta, 422 U.S. at 819. To do so, the de-

fendant must knowingly and intelligently waive his right to coun-

sel and must be made aware of the dangers and disadvantages of

self-representation. Id. at 835. However, the right to self-

representation is not absolute. Indiana v. Edwards, 554 U.S. 164,

171 (2008). A trial judge may terminate self-representation by a

defendant who deliberately engages in serious and obstructionist

misconduct. Faretta, 422 U.S. at 834 n.46; see also United States

v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995) (stating that “a de-

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4 Opinion of the Court 19-14279

fendant who misbehaves in the courtroom may forfeit his consti-

tutional right to be present at trial”).

The “ideal method of assuring that a defendant under-

stands the consequences of a waiver is for the trial court to con-

duct a pretrial hearing at which the district court should inform

the defendant of the nature of the charges against him, possible

punishments, basic trial procedure and the hazards of represent-

ing himself.” Garey, 540 F.3d at 1266 (quotation marks omitted).

However, failing to hold a Faretta hearing is not an error as a

matter of law if the record demonstrates that the defendant

knowingly and voluntarily elected to represent himself. Nelson v.

Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002). We have observed

that the ultimate test is the defendant’s understanding, stating

that a waiver may be valid where the record establishes that the

defendant understood the risks of self-representation and freely

chose to face them. United States v. Owen, 963 F.3d 1040, 1049

(11th Cir. 2020).

Although we have not yet addressed in a published opinion

the continuing validity of a valid waiver, several circuit courts

have held that a valid waiver remains in effect at subsequent pro-

ceedings in the absence of an explicit revocation by the defendant

or a sufficient change of circumstances that would suggest that

the district court should make a renewed inquiry of the defend-

ant. See, e.g., United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.

2010) (persuasive authority) (stating that no federal circuit that

has considered the issue “has held that renewed Faretta warnings

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are required at each subsequent court proceeding”); United States

v. McBride, 362 F.3d 360, 367 (6th Cir. 2004) (persuasive authori-

ty) (adopting the rule that “a defendant’s waiver of counsel at trial

carries over to subsequent proceedings absent a substantial

change in circumstances”); United States v. Unger, 915 F.2d 759,

762 (1st Cir. 1990) (persuasive authority) (holding that the district

court was free to find that the defendant’s earlier waiver was still

in force at the sentencing hearing in the absence of intervening

events); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989)

(persuasive authority) (“Once the defendant has knowingly and

intelligently waived his right to counsel, only a substantial change

in circumstances will require the district court to inquire whether

the defendant wishes to revoke his earlier waiver.”); Panagos v.

United States, 324 F.2d 764, 765 (10th Cir. 1963) (persuasive au-

thority) (concluding that there were no facts or circumstances

preventing “the initial waiver of the right to counsel, knowingly

and intelligently made, from extending to and being fully effective

at the time of sentencing”); Davis v. United States, 226 F.2d 834,

840 (8th Cir. 1955) (persuasive authority) (holding that defend-

ant’s waiver of counsel when pleading guilty was an implied

waiver as to any subsequent proceedings, including sentencing

four days later).

We have recognized that a valid waiver of counsel may oc-

cur not only when a cooperative defendant affirmatively invokes

his right to self-representation, but also when an uncooperative

defendant rejects the only counsel to which he is constitutionally

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6 Opinion of the Court 19-14279

entitled, understanding his only alternative is self-representation.

Garey, 540 F.3d at 1265. The defendant filed a motion to disquali-

fy his counsel and substitute different counsel based on purported

irreconcilable differences and conflicts of interest. Id. at 1259. Af-

ter a hearing, the trial court denied the defendant’s motion and

told him he could either accept his court-appointed counsel or

proceed pro se. Id. After further colloquy in which the defendant

repeatedly refused to waive his right to counsel but also refused

to let his court-appointed counsel represent him, the defendant

stated he was involuntarily electing to represent himself, and the

district court ultimately found that he had knowingly and volun-

tarily decided to proceed pro se. Id. at 1259–60. We stated that,

when an indigent defendant rejects competent, conflict-free coun-

sel, he may waive his right to counsel “by his uncooperative con-

duct, so long as his decision is made with knowledge of his op-

tions and the consequences of his choice.” Id. at 1266. We char-

acterized our holding as merely recognizing that, “in some in-

stances, a defendant’s conduct will reveal a voluntary decision to

choose the path of self-representation over the continued assis-

tance of counsel.” Id.

We have further stated that “[a] defendant cannot use the

right to counsel as a means to manipulate the court and cause de-

lay” and “may not be put to service as a means of delaying or tri-

fling with the court.” United States v. Graham, 643 F.3d 885, 894

(11th Cir. 2011) (quotation marks omitted). Evidence of a de-

fendant’s manipulation or intentional delay implies his greater

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understanding of the proceedings and an understanding of the

risks and complexities of a criminal trial. Owen, 963 F.3d at 1051–

52.

In McLeod, the defendant engaged in “abusive, threaten-

ing, and coercive” conduct toward his second appointed counsel,

which caused counsel to move to withdraw. 53 F.3d at 326. The

district court did not allow the defendant to testify at the hearing

held on counsel’s motion after he refused to take an oath, and the

defendant requested a third attorney after the hearing. Id. We

held that, even though the district court did not warn the defend-

ant that his misbehavior may lead to his self-representation, the

district court properly concluded that the defendant had forfeited

his right to counsel. Id.

Here, the district court did not err in failing to conduct a

second Faretta hearing, because Hameen’s alleged mental health

issues did not rise to the level of an intervening event that suffi-

ciently changed his prior waiver to the point that it was under-

mined. First, the record indicates that Hameen did not have a his-

tory of serious mental health issues. He testified at the Faretta

hearing that, besides a brief stint in counseling for depression in

2006, he had no history of mental illness. He also denied any psy-

chiatric or psychological treatment and testified that he periodical-

ly obtained religious counseling, not professional counseling. No-

tably, the unobjected-to facts in the PSI stated that Hameen was

diagnosed with a personality disorder while enlisted in the mili-

tary and was discharged after becoming medically unstable. But

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8 Opinion of the Court 19-14279

the probation officer did not receive a response to a request for

Hameen’s military records and noted that Hameen told Dr.

Demery during the competency evaluation that he was dis-

charged for smoking marijuana, not mental illness. Although

medical records showed that Hameen had previously been diag-

nosed with PTSD, Dr. Demery reported in his competency evalu-

ation and testified at the competency hearing that Hameen did

not have a history of serious mental illness that would serve as a

basis to find him incompetent. And while Hameen’s sister told

the probation officer that Hameen suffered from mental illness,

she was unable to cite a particular illness and repeatedly stated

that he was “highly intelligent.”

Next, the record shows that Hameen understood the na-

ture and consequences of the proceedings. Garey, 640 F.3d at

1265. Hameen exhibited an understanding of the charges, possi-

ble punishments, basic trial procedure, and the hazards of repre-

senting himself. Id. at 1266. He testified that he had previously

represented himself in several state-court criminal cases, including

both misdemeanor and felony charges, had conducted at least five

civil lawsuits pro se, and was familiarizing himself with the federal

rules. While Dr. Demery stated that Hameen had “an inflated

perception about his understanding of the law,” he found that

Hameen understood the nature and consequences of the proceed-

ings against him, was capable of properly assisting in his defense,

appreciated the possible penalties, understood the adversarial na-

ture of the legal process, and had an adequate appreciation of the

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range of plea options. After engaging with Hameen throughout

numerous hearings and filings, the court repeatedly stated that he

was “clearly very intelligent” and was “fully capable” of represent-

ing himself.

Further, the record does not directly support or imply that

Hameen’s mental capacity diminished throughout the proceed-

ings such that his pre-trial waiver of counsel could no longer be

considered to have been knowing and intelligent. His assertion

before sentencing that he suffered from mental health issues for

which he was on new medication did not constitute a change of

circumstances that required the district court to conduct a second

Faretta hearing. Hameen did not assert that he suffered from

mental health issues that would prevent him from self-

representation until after his fourth appointed counsel was per-

mitted to withdraw prior to sentencing. He explained that he was

on new medication that did not seem to be working and did not

know whether he was “going or coming” because his body had

not yet responded to the medication. Yet, his behaviors after the

alleged change in circumstance do not reflect any change in his

ability to understand the proceedings. To the contrary, Hameen

subsequently raised multiple objections to his PSI, including ob-

jections to his classification as an armed career criminal, and ar-

guments based upon Rehaif. The Rehaif objections especially

demonstrate his continued understanding of the proceedings and

awareness of changes in relevant law, as the Supreme Court is-

sued its decision in Rehaif nearly four months after the jury con-

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10 Opinion of the Court 19-14279

victed Hameen of possessing a firearm as a convicted felon. Re-

haif, 139 S. Ct. 2191 (issued June 21, 2019).

Moreover, the sequence of events in this case strongly sug-

gests that Hameen was engaging in calculated maneuvers de-

signed to force the district court to delay the proceedings, which

is a further implication of his continued understanding of the pro-

ceedings and their risks and complexities. See Owen, 963 F.3d at

1051–52. As noted by the district court, a criminal defendant may

forfeit his right to counsel by virtue of his actions. See McLeod,

53 F.3d at 325 (holding that a defendant who is abusive towards

his attorney may forfeit his right to counsel). Here, the record is

rife with instances of Hameen engaging in behavior to force his

several appointed counsel to withdraw and otherwise “manipu-

late the court and cause delay.” Graham, 643 F.3d at 894. As the

district court observed, Hameen also had a “pattern of raising is-

sues at the eleventh hour.”

By engaging in obstructionist misconduct, refusing the only

counsel to which he was entitled, explicitly requesting to proceed

pro se, and harassing his attorneys with lawsuits, interlocutory

appeals claiming ineffective assistance, and threats of physical vio-

lence, Hameen forfeited his right to counsel. Faretta, 422 U.S. at

834 n.46; Graham, 643 F.3d at 894; McLeod, 53 F.3d at 325; Garey,

540 F.3d at 1265–66. Thus, the court did not err by failing to con-

duct a second Faretta hearing prior to sentencing because the rec-

ord indicates that, throughout the entirety of his case before the

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district court, Hameen understood the nature and consequences

of the proceedings. Garey, 640 F.3d at 1265.

B. Untimely Rehaif Motion

We review a district court’s denial of a motion on the

grounds of untimeliness for abuse of discretion. United States v.

Snipes, 611 F.3d 855, 864 (11th Cir. 2010). A district court can

abuse its discretion when it applies an incorrect legal standard, fol-

lows improper procedures in making the determination, or makes

clearly erroneous factual findings. United States v. Brown, 415

F.3d 1257, 1266 (11th Cir. 2005). While we liberally construe the

filings of pro se litigants, we still require conformity with proce-

dural rules. See United States v. Padgett, 917 F.3d 1312, 1316 n.3

(11th Cir. 2019).

“A defendant may move for a judgment of acquittal, or re-

new such a motion, within 14 days after a guilty verdict or after

the court discharges the jury, whichever is later.” Fed. R. Crim.

P. 29(c)(1). “Any motion for a new trial grounded on any reason

other than newly discovered evidence must be filed within 14

days after the verdict or finding of guilty.” Id. 33(b)(2). The dis-

trict court may extend the time for filing a motion after this peri-

od expires if the moving party failed to act due to excusable ne-

glect. Fed. R. Crim. P. 45(b)(1)(B).

Where a district court in a criminal proceeding determines

“excusable neglect” in light of Pioneer Investment Services Co. v.

Brunswick Associates Ltd. Partnership, the factors to consider in-

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12 Opinion of the Court 19-14279

clude the following: (1) the danger of prejudice to the opposing

party; (2) the length of the delay and its potential impact on the

judicial proceedings; (3) the reason for the delay; and (4) whether

the movant acted in good faith. 507 U.S. 380, 395 (1993). The Pi-

oneer standard is “at bottom an equitable one, taking account of

all relevant circumstances surrounding the party’s omission.” Id.

The Supreme Court accorded “primary importance” to the ab-

sence of prejudice to the nonmoving party and to the interest of

efficient judicial administration. Cheney v. Anchor Glass Con-

tainer Corp., 71 F.3d 848, 850 (11th Cir 1996).

Here, the district court did not abuse its discretion in deny-

ing Hameen’s October 10, 2019, Rehaif motion as untimely be-

cause he failed to show excusable neglect. First, as to Hameen’s

argument that the district court misapplied the law by failing to

consider prejudice to the government, the main focus of the

court’s discussion as to Hameen’s prejudice appears to have been

in the context of its merits consideration, not in its consideration

of the Pioneer factors. But, Hameen was not prejudiced by dis-

missal of his motion because the jury heard ample evidence to

support a finding that he knew his prohibited status at the time he

possessed the firearm. As to prejudice against the government,

Hameen correctly notes on appeal that the government was

aware of Rehaif prior to sentencing and its potential impact on his

case. But, it had no reason to expect that he would file a motion

just before sentencing based on his knowledge-of-status that

would continue litigation if granted. See Cheney v. Anchor Glass

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Container Corp., 71 F.3d 848, 850 (11th Cir 1996) (holding the

nonmovant was not prejudiced by the movant’s six-day delay

where the parties expected to continue litigating). Although prej-

udice is of “primary importance,” the balance of the other Pioneer

factors heavily weighs against a finding of excusable neglect. See

id.

As to the second Pioneer factor, the length of the delay was

extensive, as Hameen filed the motion more than seven months

after the jury returned its verdict and over three months after the

Supreme Court’s decision in Rehaif. And its potential to interfere

with the proceedings was amplified by his filing the motion only

two business days before his sentencing hearing, which had al-

ready been continued by over a month. Therefore, the length of

the delay and its potential impact on the proceedings would

counsel against granting the request. See Pioneer, 507 U.S. at 395.

Third, while Hameen raises his pro se status as an excuse for the

delay, he filed several other pro se Rehaif-based motions months

prior to his October 10 motion. But, regardless of those prior fil-

ings, his pro se status does not excuse his nonconformity with

procedural rules, and he did not explain why he did not file his

motion until two months after he forfeited his right to counsel.

Moreover, his assertion on appeal that the timing of the Rehaif

decision and his discovery of the superseding indictment were

reasons for the delay is unpersuasive, as Rehaif was decided in Ju-

ly 2019 and he failed to raise the knowledge-of-status argument in

any of his previous Rehaif-based motions. Finally, in light of the

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14 Opinion of the Court 19-14279

whole record exhibiting Hameen’s pattern of late filings and at-

tempts to delay proceedings, the court properly found that he had

not acted in good faith.

C. Omission of Knowledge-of-Status from Indictment and

Jury Instructions

We ordinarily review de novo whether an indictment is in-

sufficient and whether the district court misstated the law in its

jury instruction. United States v. Steele, 178 F.3d 1230, 1233 (11th

Cir. 1999) (indictment); United States v. Joseph, 709 F.3d 1082,

1093 (11th Cir. 2013) (jury instruction). However, we review

challenges to an indictment and jury instructions not presented

below for plain error. United States v. Vernon, 723 F.3d 1234,

1260–61 (11th Cir. 2013); Joseph, 709 F.3d at 1093. In Reed, we

reviewed for plain error new challenges to the indictment, jury

instructions, and the sufficiency of the evidence that were based

on Rehaif, which was decided after our initial opinion affirming

the appellant’s conviction. United States v. Reed, 941 F.3d 1018,

1020 (11th Cir. 2019); see also Greer v. United States, 141 S. Ct.

2090, 2096 (2021) (applying plain-error review to unpreserved

knowledge-of-status challenges to the indictment and jury instruc-

tions based on Rehaif). In Greer, the Supreme Court held that,

“[i]n felon-in-possession cases, a Rehaif error is not a basis for

plain-error relief unless the defendant first makes a sufficient ar-

gument or representation on appeal that he would have presented

evidence at trial that he did not in fact know he was a felon.”

Greer, 141 S. Ct. at 2100.

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To demonstrate plain error, the appellant must show that

an error occurred that was both plain and affected his substantial

rights, meaning that he must show a reasonable probability that,

but for the error, the outcome of the proceeding would have been

different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016). If the appellant does so, we may, at our discretion, correct

the error if it seriously affected the fairness, integrity, or public

reputation of the judicial proceedings. Reed, 941 F.3d at 1021.

The Supreme Court has instructed that appellate courts may con-

sult the entire record, including the presentence investigation re-

port (“PSI”), when considering the effect of a Rehaif instructional

error on a defendant’s substantial rights. Greer, 141 S. Ct. at 2098.

To be sufficient, an indictment must (1) present the essen-

tial elements of the charged offense; (2) notify the defendant of

the charges to be defended against; and (3) enable the defendant

to rely on a judgment under the indictment as a bar against future

prosecutions for the same offense. United States v. Wayerski, 624

F.3d 1342, 1349 (11th Cir. 2010). This is sufficient to “satisfy the

Sixth Amendment’s guarantee of notice to the accused of the na-

ture and the cause of the accusation, and the Fifth Amendment’s

assurance that a grand jury will return an indictment only when it

finds probable cause for all elements of the crime.” Id. Addition-

ally, the indictment’s specific reference to the statute upon which

the charge is based adequately informs the defendant of the

charge. Id. at 1349–50. An indictment also fulfills the constitu-

tional standard when it tracks the statute’s wording, as long as the

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16 Opinion of the Court 19-14279

language sets forth the essential elements of the crime. Id. at

1350. Failure to allege a mens rea element is a non-jurisdictional

error. United States v. Brown, 752 F.3d 1344, 1353–54 (11th Cir.

2014).

Section 922(g)(1) makes it unlawful for any person, “who

has been convicted in any court of, a crime punishable by impris-

onment for a term exceeding one year . . . to . . . possess in or af-

fecting commerce, any firearm or ammunition.” 18 U.S.C.

§ 922(g)(1). Section 924(a)(2) provides that a defendant who

knowingly violates § 922(g) is subject to up to ten years’ impris-

onment. Id. § 924(a)(2). A statutory minimum of 15 years’ im-

prisonment applies to “a person who violates section 922(g)” and

qualifies as an armed career criminal. Id. § 924(e)(1).

In Rehaif, the Supreme Court held that, “[i]n 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 2200. A

defendant’s knowledge of his status can be inferred from circum-

stantial evidence. Id. at 2198 (citing Staples v. United States, 511

U.S. 600, 615 n.11 (1994)).

In Moore, we rejected the argument that Rehaif created a

jurisdictional defect in an indictment, holding that an indictment’s

omission of a statement that a defendant knew that he was a felon

prohibited from possessing a firearm was a non-jurisdictional

omission. United States v. Moore, 954 F.3d 1322, 1336–37 (11th

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Cir. 2020), cert. denied, 141 S. Ct. 2819 (2021) (stating “the law is

clear: the omission of an element in an indictment does not de-

prive the district court of subject matter jurisdiction”); see also

United States v. Morales, 987 F.3d at 978–79 (11th Cir. 2021)

(holding that the indictment’s omission of the knowledge-of-

status element did not deprive the district court of subject-matter

jurisdiction).

Following Rehaif, we concluded in Reed that the defendant

had established that errors had occurred with respect to his in-

dictment and at his trial that Rehaif made plain because his in-

dictment failed to allege that he knew that he was a felon, the jury

was not instructed to find that he was a felon, and the govern-

ment was not required to prove that he was felon. Reed, 941 F.3d

at 1021. However, we also concluded that the defendant could

not “prove that the errors affected his substantial rights or the

fairness, integrity, or public reputation of his trial” because the

record established that the jury could conclude that he knew that

he was a felon at the time that he possessed the gun. Id. We spe-

cifically pointed to the parties’ stipulation that the defendant had

been convicted of a felony offense in the past and that he had not

had his right to possess a firearm restored, his admission on

cross-examination that he knew that he was not permitted to

have a gun, and his failure to object to the PSI’s statement that he

had served at least 18 months in prison prior to his arrest for fire-

arm possession. Id. at 1021–22.

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Under our prior panel precedent rule, “a prior panel’s hold-

ing is binding on all subsequent panels unless and until it is over-

ruled or undermined to the point of abrogation by the Supreme

Court or by this court sitting en banc.” United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008). To overrule a prior decision,

the Supreme Court or en banc decision must be clearly on point.

Id. There is no exception to the rule based upon an overlooked

or misinterpreted precedent reason or a perceived defect in the

prior panel’s reasoning or analysis as it relates to the law in exist-

ence at that time. United States v. Fritts, 841 F.3d 937, 942 (11th

Cir. 2016). However, “when a precedent of the Supreme Court

has direct application, we must follow it.” United States v. John-

son, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc) (quotation

marks and brackets omitted).

Arguments raised for the first time in a reply brief are

deemed abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678, 682–83 (11th Cir. 2014).

Here, Hameen’s argument that the district court erred in

declining to dismiss his indictment as jurisdictionally defective is

foreclosed by our binding precedent in Moore. Hameen cannot

satisfy plain-error review because, while an error that was plain

did occur, he fails to show that the error affected his substantial

rights. See Reed, 941 F.3d at 1020–22. While Hameen argues that

the deficiencies in the indictment violated his Fifth and Sixth

Amendment rights and this substantially affected his rights, this

Court has held that an indictment that specifically mentions a

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statute will adequately inform the defendant of the charges. See

Wayerski, 624 F.3d at 1349–50. Hameen’s indictment specifically

listed 18 U.S.C. §§ 922(g)(1) and 924(e). And the indictment

tracked the language of § 922(g)(1) and cited 15 of his prior con-

victions and the dates on or about when the felonious conduct

occurred. Nonetheless, in light of Reed and Rehaif, an error that

was plain occurred because the indictment did not require that

the government prove that Hameen knew that he belonged to a

category of people prohibited from possessing a firearm and the

jury was not instructed that, in order to find him guilty, it needed

to find beyond a reasonable doubt that he knew he was a convict-

ed felon at the time he possessed the firearm. See Reed, 941 F.3d

at 1021; Rehaif, 139 S. Ct. at 2200.

Hameen’s arguments on appeal fail to meet the require-

ment set by the Supreme Court in Greer to show that the error

affected his substantial rights. See Greer, 141 S. Ct. at 2100. In his

supplemental filing, Hameen avers that he met the Greer re-

quirement by arguing on appeal that, had the indictment and jury

instructions included the knowledge-of-status element, he would

have presented evidence at trial that he did not know he was a

felon. However, the representation to which he refers was made

in his reply brief, not his initial brief, and this Court declines to

address arguments raised for the first time in a reply brief. See

Sapuppo, 739 F.3d at 682–83. Accordingly, because his represen-

tation on appeal speaks to the mere possibility that he could satis-

fy the requirement in Greer and he makes no such argument or

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20 Opinion of the Court 19-14279

representation in his initial brief, like the defendants in Greer,

Hameen cannot satisfy plain-error review. See Greer, 141 S. Ct.

at 2100.

Even if this Court were to consider the merits, Hameen

cannot show a reasonable probability that, but for the errors, the

outcome of his trial probably would have been different. Molina

Martinez, 136 S. Ct. at 1343. Hameen’s indictment listed 15 felo-

ny convictions that occurred prior to his possession in the instant

case. And the court at sentencing admitted certified copies of

Hameen’s three felony judgments that were relied upon in the

PSI’s classification of him as an armed career criminal after the

government presented evidence matching his fingerprints to each

of the judgments of conviction. The jury could have inferred that

Hameen knew he was a felon from his stipulation that he was a

convicted felon, his testimony that he had been convicted of ten

prior felony convictions in the preceding ten years (admitting the

fact of each conviction, date, and nature of the offense), and his

testimony as to his 2017 Florida conviction for selling heroin.

Moreover, the jury was permitted to reject Hameen’s explanation

as to picking up a jacket at random without knowing it contained

a firearm and infer his knowledge-of-status from circumstantial

evidence of the officers’ testimony that he possessed the firearm

tucked under his arm and attempted to avoid arrest by turning

away from Driggers when the officer reached out to arrest him

for trespassing. Rehaif, 139 S. Ct. at 2198, 2200 (stating

knowledge of status can be inferred from circumstantial evi-

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19-14279 Opinion of the Court 21

dence). Despite Hameen not testifying to his knowledge of his

felon status at trial, the jury could reasonably have concluded, if

presented with proper jury instructions, that he knew he had been

convicted of at least one crime punishable by a term exceeding

one year. See Reed, 941 F.3d at 1021–22. Therefore, he cannot

show that the errors affected his substantial rights or the fairness,

integrity, or public reputation of his trial. Greer, 141 S. Ct. at

2100; Reed, 941 F.3d at 1021–22.

D. Constitutionality of § 922(g)

We ordinarily review constitutional challenges to statutes

de novo. United States v. Wright, 607 F.3d 708, 715 (11th Cir.

2010). However, where a constitutional challenge to a statute is

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

Id.

Pursuant to § 922(g)(1), 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 re-

ceive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.” 18 U.S.C.

§ 922(g)(1).

In Lopez, the Supreme Court held that the Gun-Free

School Zones Act of 1990 was an invalid exercise of Congress’s

Commerce Clause power, in part, because the statute could not

be sustained on the reasoning that the regulated activities, in the

aggregate, had a substantial effect on interstate commerce. Unit-

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22 Opinion of the Court 19-14279

ed States v. Lopez, 514 U.S. 549, 561 (1995). In addition, the Su-

preme Court emphasized that the challenged statute “contain[ed]

no jurisdictional element which would ensure, through case-by-

case inquiry, that the firearm possession in question affect[ed] in-

terstate commerce.” Id.

Since Lopez, we have repeatedly upheld § 922(g) as a con-

stitutional exercise of Congress’s power under the Commerce

Clause. See Wright, 607 F.3d at 715 (citing United States v. Nich-

ols, 124 F.3d 1265 (11th Cir. 1997), and United States v. McAllis-

ter, 77 F.3d 387 (11th Cir. 1996)); see also United States v. Scott,

263 F.3d 1270, 1273 (11th Cir. 2001) (holding that “the jurisdic-

tional 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”). We

have also held that § 922(g) is constitutional as applied where the

government proved a “minimal nexus” to interstate commerce by

demonstrating that the firearm had traveled in interstate com-

merce. Wright, 607 F.3d at 715–16 (quotation marks omitted);

see also 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). In Wright, we determined that firearms that were

manufactured in Massachusetts and later discovered in the de-

fendant’s possession in Florida necessarily traveled in interstate

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19-14279 Opinion of the Court 23

commerce, which satisfied the minimal-nexus requirement. 607

F.3d at 716.

Here, our binding precedent forecloses Hameen’s argu-

ment that § 922(g) is an unconstitutional exercise of Congress’s

authority under the Commerce Clause.

E. Florida Aggravated Assault Conviction

We review de novo a district court’s conclusion that a prior

conviction is a violent felony within the meaning of the ACCA,

United States v. Oliver, 962 F.3d 1311, 1316 (11th Cir. 2020), or a

crime of violence under the Guidelines, United States v. Rosales-

Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012). We review for plain

error an appellant’s argument that a prior Florida conviction for

aggravated assault is not a violent felony under the ACCA be-

cause it can be committed with a mens rea of recklessness where

the appellant failed to raise the issue before the district court.

United States v. Innocent, 977 F.3d 1077, 1085 (11th Cir. 2020),

cert. denied, 141 S. Ct. 2827 (2021).

The ACCA caps a federal prison sentence for possessing a

firearm as a felon under 18 U.S.C. § 922(g)(1) at ten years, except

when the person being sentenced has three or more prior convic-

tions for violent felonies or serious drug offenses, which increases

the minimum prison sentence to 15 years. 18 U.S.C. § 924(a)(2),

(e)(1). The ACCA defines the term “violent felony” as any crime

punishable by a term of imprisonment exceeding one year that:

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24 Opinion of the Court 19-14279

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that pre-

sents a serious potential risk of physical injury to an-

other.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is some-

times referred to as the “elements clause,” while the second prong

contains the “enumerated crimes” and, finally, what is commonly

called the “residual clause.” United States v. Owens, 672 F.3d 966,

968 (11th Cir. 2012). The Supreme Court in Johnson held that the

residual clause of the ACCA is unconstitutionally vague because it

creates uncertainty about how to evaluate the risks posed by a

crime and how much risk it takes to qualify as a violent felony.

Johnson v. United States, 576 U.S. 591, 597–99, 606 (2015). The

Court clarified that, in holding that the residual clause is void, it

did not call into question the application of the elements clause

and the enumerated crimes of the ACCA’s definition of a violent

felony. Id.

A “crime of violence” for purposes of § 4B1.1(a) is defined

in § 4B1.2(a), the career-offender provision, and includes any of-

fense under federal or state law, punishable by imprisonment for

a term exceeding one year that has, as an element, the “use, at-

tempted use, or threatened use of physical force against the per-

son of another.” U.S.S.G. §§ 4B1.1, comment. (n.1), 4B1.2(a)(1)

(elements clause). Because the elements clauses in § 4B1.2(a) and

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19-14279 Opinion of the Court 25

the ACCA “are virtually identical,” we look to cases applying the

ACCA for guidance when considering whether an offense quali-

fies as a crime of violence under the Sentencing Guidelines. Unit-

ed States v. Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019), cert. de-

nied, 140 S. Ct. 2553 (2020).

Florida aggravated assault is an assault “[w]ith a deadly

weapon without intent to kill” or “[w]ith an intent to commit a

felony.” Fla. Stat. § 784.021(1). An assault, in turn, is defined by

Florida law as “an intentional, unlawful threat by word or act to

do violence to the person of another, coupled with an apparent

ability to do so, and doing some act which creates a well-founded

fear in such other person that such violence is imminent.” Id.

§ 784.011(1).

In Turner, we held that Florida aggravated assault categor-

ically qualifies as a violent felony under the ACCA’s elements

clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1338 (11th Cir. 2013), abrogated on other grounds by John-

son v. United States, 576 U.S. 591 (2015). In Golden, we reaf-

firmed the holding in Turner as binding for the determination

that a conviction for Florida aggravated assault constitutes a

crime of violence under the similarly worded elements clause in

the Guidelines. United States v. Golden, 854 F.3d 1256, 1256–57

(11th Cir. 2017) (stating “Turner is binding”); see also Innocent,

977 F.3d at 1085 (reaffirming Turner).

In June 2021, while Hameen’s appeal was pending, the Su-

preme Court in Borden held that a criminal offense with a mens

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26 Opinion of the Court 19-14279

rea of recklessness does not qualify as a “violent felony” under the

ACCA’s elements clause. Borden v. United States, 141 S. Ct.

1817, 1834 (2021). Writing for four of the Justices, Justice Kagan

reasoned that the phrase “against another” in the elements clause,

which modifies “the use of force,” requires that the perpetrator

direct his action at or target another individual and that reckless

conduct is not aimed in that prescribed manner. Id. at 1826.

Concurring in judgment and writing separately, Justice Thomas

further reasoned that a crime that can be committed through

mere recklessness does not have as an element the “use of physi-

cal force” because that phrase has a well-understood meaning ap-

plying only to intentional acts designed to cause harm. Id. at 1835

(Thomas, J., concurring).

After Borden, this Court certified questions to the Florida

Supreme Court regarding the mens rea required for a Florida ag-

gravated assault conviction. Somers v. United States, 15 F.4th

1049 (2021). The Florida Supreme Court held the Florida’s aggra-

vated assault statute demands specific intent to direct a threat at

another person and therefore cannot be violated by a reckless act.

Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022). Based on

the Florida Supreme Court’s answer to our certified questions

that aggravated assault under Florida law requires a mens rea of

at least knowing conduct, we held aggravated assault under Flori-

da law qualifies as an ACCA predicate offense under Borden.

Somers v. United States, 66 F.4th 890, 891 (11th Cir. 2023). Be-

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19-14279 Opinion of the Court 27

cause Somers holds that a Florida aggravated assault conviction is

a crime of violence under ACCA, Hameen’s challenge fails.

F. Serious Drug Offense

We review de novo whether a conviction qualifies as a se-

rious drug offense under the ACCA. United States v. White, 837

F.3d 1225, 1228 (11th Cir. 2016). We also review de novo wheth-

er a defendant’s prior conviction qualifies as a controlled sub-

stance offense under U.S.S.G. § 4B1.2(b). United States v. Lange,

862 F.3d 1290, 1293 (11th Cir. 2017).

To qualify as a “serious drug offense” under the ACCA, the

prior state conviction must (1) involve manufacturing, distrib-

uting, or possessing with intent to manufacture or distribute a

controlled substance, and (2) carry a maximum prison term of ten

years or more. 18 U.S.C. § 924(e)(2)(A)(ii).

Section 2K2.1 of the Sentencing Guidelines provides for a

base offense level of 24 if the defendant committed the instant of-

fense after having previously been convicted of at least 2 crimes of

violence or controlled substance offenses. U.S.S.G. § 2K2.1(a)(2).

The term “controlled substance offense” carries the same mean-

ing for purposes of § 2K2.1 as it does under the career-offender

guidelines in § 4B1.2. Id. § 2K2.1, comment. (n.1). “Controlled

substance offense” is defined, in § 4B1.2, as an offense under fed-

eral or state law, punishable by imprisonment for a term that is

greater than one year that prohibits (1) the manufacture, distribu-

tion, import, export, or dispensing of a controlled substance or

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28 Opinion of the Court 19-14279

(2) the possession of a controlled substance with the intent to

manufacture, import, export, distribute, or dispense. Id.

§ 4B1.2(b).

Section 893.13 of the Florida Statutes criminalizes the sale,

manufacture, and delivery of a controlled substance, as well as

possession of a controlled substance with intent to sell, manufac-

ture, or deliver. Fla. Stat. § 893.13(1)(a)(1). Knowledge of the il-

licit nature of the substance is not an element of the offense. Fla.

Stat. § 893.101.

In Smith, we held that Fla. Stat. § 893.13(1) is both a “seri-

ous drug offense,” under 18 U.S.C. § 924(e)(2)(A), and a “con-

trolled substance offense,” under U.S.S.G. § 4B1.2(b), stating

“[n]either definition requires that a predicate state offense in-

cludes an element of mens rea with respect to the illicit nature of

the controlled substance.” 775 F.3d at 1268 (quotation marks

omitted). We have subsequently reaffirmed Smith’s holding as

binding in several published decisions. See United States v. Pridg-

eon, 853 F.3d 1192, 1198 (11th Cir. 2017) (rejecting the argument

that Smith was wrongly decided and affirming Smith’s holding

that convictions under Fla. Stat. § 893.13 qualify as controlled sub-

stance offenses under the Guidelines); United States v. Bishop, 940

F.3d 1242, 1253–54 (11th Cir. 2019), cert. denied, 140 S. Ct. 1274

(2020) (same).

In Shular, the Supreme Court held that a court determining

whether an offense qualifies as a serious drug offense need only

consider whether the offense’s elements “necessarily entail” the

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19-14279 Opinion of the Court 29

types of conduct identified in the ACCA’s definition of a serious

drug offense, rather than engage in a “generic-offense matching

exercise.” 140 S. Ct. at 783–84 (quotation marks omitted) (affirm-

ing our decision that the petitioner’s prior convictions under Fla.

Stat. § 893.13(1)(a) qualified as serious drug offenses under the

ACCA, noting we based our holding in the case on Smith). We

have reaffirmed after Smith that the argument that a prior convic-

tion under Fla. Stat. § 893.13(1) cannot qualify as a serious drug

offense under the ACCA because the state offense lacks a mens

rea element is foreclosed by our precedent in Smith and the Su-

preme Court’s precedent in Shular. United States v. Smith, 983

F.3d 1213, 1223 (11th Cir. 2020).

Here, Hameen’s challenge that his Florida drug convictions

under Fla. Stat. § 893.13 do not qualify as controlled substance of-

fenses under the Guidelines or serious drug offenses under the

ACCA is foreclosed by our binding precedent in Smith. 4

4 Hameen filed additional briefing on this issue after the release of

United States v. Jackson, 36 F.4th 1294 (11th Cir. June 10, 2022) (“Jackson I”),

where we held that certain Florida cocaine-related offenses, like Hameen’s

2008 conviction under Fla. Stat. § 893.13(a)(1) for sale or delivery of cocaine,

are not “serious drug offense[s]” under the ACCA because they include a

substance, namely ioflupane, that is not included in the federal controlled

substances definition. However, this court vacated that opinion and then

issued a new opinion, 55 F.4th 846 (11th Cir. Dec. 12, 2022), cert. granted

2023 WL 3440568 (May 15, 2023) (“Jackson II”), where we held that “ACCA’s

definition of a state ‘serious drug offense’ incorporates the version of the fed-

eral controlled-substances schedules in effect when the defendant was con-

victed of the prior state drug offense.” Id. at 854. At the time of Hameen’s

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30 Opinion of the Court 19-14279

G. ACCA Enhanced Sentence

Generally, all elements of a crime must be alleged by in-

dictment and proven beyond a reasonable doubt. Smith, 775 F.3d

at 1266. However, the Supreme Court in Almendarez-Torres

carved out an exception for prior convictions, holding that the

government need not prove beyond a reasonable doubt that a de-

fendant had prior convictions or allege them in the indictment in

order to use those convictions to enhance a defendant’s sentence.

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998); see

Apprendi v. New Jersey, 530 U.S. 466, 489–90 (2000) (declining to

revisit the exception in Almendarez-Torres). We have repeatedly

held that Almendarez-Torres forecloses the argument that an

ACCA enhancement was unconstitutionally applied because the

fact of a prior conviction was not alleged in the indictment or

proven to a jury. See, e.g., United States v. Deshazior, 882 F.3d

1352, 1358 (11th Cir. 2018); Smith, 775 F.3d at 1266. We have also

“repeatedly rejected the argument that judicially determining

whether prior convictions were committed on different occasions

from one another for purposes of the ACCA violates a defendant’s

2008 Florida cocaine conviction, both the Florida and federal controlled sub-

stances schedules included ioflupane.

This Jackson issue was raised by Hameen for the first time on appeal,

and even then only after both his initial and reply briefs were filed, thus rais-

ing issues of preservation or forfeiture. We need not decide the preserva-

tion/forfeiture issues because our Jackson II decision is binding and foreclos-

es Hameen’s new challenge based on the Jackson issue.

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19-14279 Opinion of the Court 31

Fifth and Sixth Amendment rights.” United States v. Dudley, 5

F.4th 1249, 1260–61 (11th Cir. 2021).

Here, Hameen’s argument that his ACCA-enhanced sen-

tence violates the Fifth and Sixth Amendments because the

ACCA’s requirements were not charged in the indictment or

proven to a jury beyond a reasonable doubt is foreclosed by the

Supreme Court’s decision in Almendarez-Torres and our binding

precedent applying Almendarez-Torres.

H. Consolidated Appeal

We consolidated Hameen’s pro se 2022 appeal (Appeal No.

22-12968) of two orders with his direct appeal. The 2022 appeal

challenges two orders: a magistrate judge’s August 1, 2022, order

denying his amended motion to appoint counsel and request for

an indicative ruling concerning whether Hameen should receive a

reduction in his sentence based on our June 10, 2022, decision in

United States v. Jackson (“Jackson I”), and the district court’s Au-

gust 17, 2022, order overruling Hameen’s objections to the magis-

trate judge’s order.

We grant the Government’s motion to dismiss this appeal.

The challenged orders did not constitute final postjudgment or-

ders because they did not resolve all of the issues raised in the

amended motion to appoint counsel that initiated the postjudg-

ment proceedings. In that motion, Hameen sought relief from his

sentence under Jackson I and counsel to help him obtain that re-

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32 Opinion of the Court 19-14279

lief. Shortly after filing that initial motion, he filed a related mo-

tion more explicitly seeking that relief—vacatur of the sentence

under Jackson—that was pending before this Court when

Hameen filed his notice of appeal. 5 The orders addressing only

the initial motion thus did not end the postjudgment proceedings.

See 28 U.S.C. § 1291; Mayer v. Wall St. Equity Grp., Inc., 672 F.3d

1222, 1224 (11th Cir. 2012); Thomas v. Blue Cross & Blue Shield

Ass’n, 594 F.3d 823, 829 (11th Cir. 2010). The orders were also

not appealable under the collateral order doctrine because the is-

sues raised in the amended motion to appoint counsel were capa-

ble of review after the district court issued a final postjudgment

order. 6 See Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th Cir.

2014); see also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,

430-31 (1985) (stating that the collateral order doctrine is narrow,

and its “reach is limited to trial court orders affecting rights that

will be irretrievably lost in the absence of an immediate appeal”).

IX.

For the foregoing reasons, we affirm Hameen’s conviction

and sentence. We dismiss the consolidated appeal.

5 That is, appointed counsel had already filed a supplemental brief in

Hameen’s direct appeal seeking that same relief under the then-extant Jack-

son decision, 36 F. 4th 1294.

6 On March 20, 2023, the district court entered a final postjudgment

order denying an evidentiary hearing and vacatur of the sentence, as well as

several other related postjudgment motions.

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19-14279 Opinion of the Court 33

AFFIRMED in part, DISMISSED in part. 7

7 All pending motions are DENIED.