United States v. Charles Hyde

USCA11 Case: 22-10332 Document: 69-1 Date Filed: 02/22/2024 Page: 1 of 13

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10332

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES HYDE,

a.k.a Chuck,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:19-cr-00005-LGW-BWC-2

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2 Opinion of the Court 22-10332

____________________

Before WILSON, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Charles Hyde appeals his convictions for drug and

firearm-related offenses and the imposition of his 444-month sen-

tence. Hyde raises several arguments on appeal: (1) that the district

court erred by finding his waiver of counsel valid; (2) that the dis-

trict court erred by failing to declare that 18 U.S.C. §§ 922(g)(1) and

(k) violated his Second Amendment rights; (3) that the district court

erred by constructively amending his superseding indictment, war-

ranting reversal of his conviction and sentence for brandishing a

gun in furtherance of a drug-trafficking crime; (4) that the evidence

that he brandished a firearm in furtherance of a drug-trafficking

crime was so insufficient as to render this conviction a manifest

miscarriage of justice; (5) that the district court erred by sentencing

him as an armed career criminal; and (6) that the district court

plainly erred by enhancing his sentence without submitting his

prior convictions to a jury. Having read the parties’ briefs and re-

viewed the record, we affirm Hyde’s convictions and sentence.

I.

We review de novo whether a waiver of the right to counsel

was knowing and voluntary, which is a mixed question of law and

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

banc). On appeal, it is the government’s burden to show the valid-

ity of the waiver. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir.

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22-10332 Opinion of the Court 3

1995). We have not yet decided whether a Faretta challenge raised

for the first time on appeal is reviewed de novo or for plain error.

See United States v. Owen, 963 F.3d 1040, 1048 n.5 (11th Cir. 2020).

Under the Sixth Amendment, all criminal defendants are en-

titled to the assistance of counsel. U.S. Const. amend. VI. To

waive the right to counsel, the defendant “must clearly and une-

quivocally assert the right of self-representation,” and this waiver

must be “knowing, intelligent, and voluntary.” Owen, 963 F.3d at

1048 (quotation marks omitted). When a defendant asks to repre-

sent himself, the district court should ideally hold a hearing pursu-

ant to Faretta v.California, 422 U.S. 806, 819 (1975) to inform him of

the charges against him, the possible punishments, basic trial pro-

cedure, and the hazards of self-representation. United States v. Kim-

ball, 291 F.3d 726, 730 (11th Cir. 2002). This hearing allows the dis-

trict court to determine that the defendant understands the risks of

self-representation and makes a fully informed choice. Id. “As long

as the record establishes that the defendant understood the risks of

self-representation and freely chose to face them, the waiver may

be valid.” Owen, 963 F.3d at 1049 (quotation marks omitted).

We consider eight factors in determining whether the de-

fendant’s waiver was knowing and voluntary:

(1) the defendant’s age, health, and education; (2) the

defendant’s contact with lawyers prior to trial; (3) the

defendant’s knowledge of the nature of the charges

and possible defenses and penalties; (4) the defend-

ant’s understanding of the rules of evidence,

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4 Opinion of the Court 22-10332

procedure and courtroom decorum; (5) the defend-

ant’s experience in criminal trials; (6) whether

standby counsel was appointed and, if so, the extent

to which standby counsel aided in the trial; (7) any

mistreatment or coercion of the defendant; and

(8) whether the defendant was attempting to manip-

ulate the trial.

Kimball, 291 F.3d at 730-31. A defendant’s waiver may be valid

when most of these factors do not weigh in his favor. Id. at 731.

Importantly, a defendant need not have the skill and experience of

a lawyer to make a valid waiver. Faretta, 422 U.S. at 835.

Here, as an initial matter, although Hyde raises a Faretta

challenge for the first time on appeal, we need not decide whether

to review the claim de novo or for plain error because his claim fails

even on de novo review. See Owen, 963 F.3d at 1048 n.5. Based on

a review of the record and the Faretta inquiry, we conclude that the

district court did not err in concluding that Hyde’s waiver of coun-

sel was knowing, intelligent, and voluntary. The magistrate judge

covered most of the Kimball factors at two hearings, warning Hyde

of the risks he faced by proceeding without counsel. The magis-

trate judge informed Hyde of the nature of the charges against him

by detailing each of the five counts in the superseding indictment;

he addressed the statutory prison terms for each of the charges; he

warned Hyde of the dangers of self-representation; and he ques-

tioned Hyde about his knowledge of basic legal procedures. The

magistrate judge appointed stand-by counsel, the same counsel

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who had represented Hyde for 13 months at that time, and after

Hyde insisted that his waiver was entirely voluntary, the magis-

trate judge granted his motion to proceed pro se. “As long as the

record establishes that the defendant understood the risks of self-

representation and freely chose to face them, the waiver may be

valid.” United States v. Stanley, 739 F.3d 633, 645 (11th Cir. 2014)

(“The ultimate test is not the trial court’s express advice, but rather

the defendant’s understanding.”).

The trial court also considered the information provided in

the psychiatric evaluation requested by defense counsel, which in-

cluded Hyde’s background and history of substance abuse. In the

evaluation, Hyde denied any history of mental health symptoms.

The psychologist concluded that Hyde was able to understand the

nature and consequences of the criminal proceedings against him

and assist in his defense and, thus, was competent to stand trial.

Based on all these factors, the district court granted Hyde’s motion

to proceed pro se. We conclude, based on this record, that the dis-

trict court did not err in granting the motion, and we affirm as to

this issue.

II.

Hyde argues that 18 U.S.C. §§ 922(g)(1) and (k) violate his

Second Amendment rights. Generally, we review de novo the con-

stitutionality of a statute, as it is a question of law. United States v.

Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, if the issue is

raised for the first time on appeal, as it is here, we review for plain

error only. Id. Under plain-error review, we will reverse a district

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6 Opinion of the Court 22-10332

court’s decision only if “there is: (1) error, (2) that is plain, and (3)

that affects substantial rights, and if (4) the error seriously affects

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

United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017) (quota-

tion marks omitted). An error is plain if it is clear or obvious—if

the explicit language of a statute, rule, or precedent from the Su-

preme Court or this court directly resolves the issue. United States

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

Under the prior panel precedent rule, we are bound by our

prior published decisions unless and until they are overruled or un-

dermined to the point of abrogation by the Supreme Court or this

court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008). “While an intervening decision of the Supreme

Court can overrule the decision of a prior panel of our court, the

Supreme Court decision must be clearly on point.” Id. (quotation

marks omitted). “The prior panel precedent rule applies regardless

of whether the later panel believes the prior panel’s opinion to be

correct, and there is no exception to the rule where the prior panel

failed to consider arguments raised before a later panel.” United

States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019).

Section 922(g) of Title 18 of the United States Code prohibits

anyone who has been convicted of a crime punishable by more

than one year “to ship or transport in interstate or foreign com-

merce, or possess in or affecting commerce, any firearm or ammu-

nition.” 18 U.S.C. § 922(g)(1). Section 922(k) of Title 18 of the

United States Code makes it unlawful to “receive . . . any firearm

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22-10332 Opinion of the Court 7

which has had the importer’s or manufacturer’s serial number re-

moved, obliterated, or altered and has, at any time, been shipped

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

§ 922(k).

The prior panel precedent rule bars Hyde’s challenge to the

constitutionality of § 922(g)(1). Our conclusion in Rozier that §

922(g)(1) is a constitutional restriction on a defendant’s Second

Amendment rights is still binding precedent, and we are bound to

follow that panel’s decision. United States v. Rozier, 598 F.3d 768,

772 (11th Cir. 2010); Archer, 531 F.3d at 1352. Further, Hyde cannot

establish plain error as to his § 922(k) argument. First, weapons

with altered or obliterated serial numbers are not usually possessed

by law-abiding citizens for lawful purposes and, thus, fall outside

the protection of the Second Amendment. District of Columbia v.

Heller, 554 U.S. 570, 625, 128 S. Ct. 2783, 2815-16 (2008). Second,

neither we nor the Supreme Court have held that § 922(k) is un-

constitutional under the Second Amendment. Innocent, 977 F.3d at

1085. Thus, we affirm as to this issue.

III.

We review de novo whether a district court’s instructions

constructively amended an indictment. United States v. Gutierrez,

745 F.3d 463, 473 (11th Cir. 2014). Where a defendant did not ob-

ject to jury instructions at trial, we review for plain error. United

States v. Whyte, 928 F.3d 1317, 1331 (11th Cir. 2019). Similarly,

when a defendant fails to object that the jury instructions

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8 Opinion of the Court 22-10332

constructively amended the indictment, we review for plain error.

United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).

When reviewing a jury instruction for plain error, we will

reverse only when the error is so fundamental that it results in a

miscarriage of justice. Gutierrez, 745 F.3d at 471. The instruction

must be an incorrect statement of law that was “probably respon-

sible for an incorrect verdict, leading to substantial injustice.”

Whyte, 928 F.3d at 1332. Finally, when reviewing an alleged con-

structive amendment, the court’s instructions should be viewed in

context. United States v. Castro, 89 F.3d 1443, 1453 (11th Cir. 1996).

Here, because Hyde did not object at trial to the jury instruc-

tions on the basis that they constructively amended the indictment,

we review for plain error. Whyte, 928 F.3d at 1331; Madden, 733

F.3d at 1322. At trial, the government had to show that Hyde either

used or carried a firearm during and in relation to a drug trafficking

crime or possessed a firearm in furtherance of a drug trafficking

crime. 18 U.S.C. § 924(c)(1)(A). Hyde takes issue with the brandish-

ing element, but the record shows that the government sufficiently

proved this element, which can be a separate element of either

method of a § 924 charge. We conclude that any error in the jury

instruction relating to the wording of the charge was not so funda-

mental that it resulted in a miscarriage of justice. See Gutierrez, 745

F.3d at 471. Thus, we affirm as to this issue.

IV.

We generally review de novo a sufficiency of the evidence

challenge, asking whether a reasonable jury could have found the

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defendant guilty beyond a reasonable doubt. United States v. House,

684 F.3d 1173, 1196 (11th Cir. 2012). However, if the defendant did

not move for a judgment of acquittal, or otherwise preserve a suf-

ficiency of the evidence challenge below, we will only set aside his

conviction if we find a manifest miscarriage of justice, which exists

if the evidence on a key element of the offense is so tenuous that a

conviction would be shocking. Id. Further, we will not upset a

jury’s decision to credit a witness’s testimony unless in the rare cir-

cumstance that the testimony is incredible as a matter of law.

United States v. Isaacson, 752 F.3d 1291, 1304 (11th Cir. 2014) (noting

that testimony “is incredible if it concerns facts that the witness

physically could not have possibly observed or events that could

not have occurred under the laws of nature”) (quotation marks

omitted). Yet, “when a defendant chooses to testify, he runs the

risk that if disbelieved the jury might conclude the opposite of his

testimony is true.” United States v. Brown, 53 F.3d 312, 314 (11th

Cir. 1995) (quotation marks omitted).

To obtain a conviction under the “in furtherance of” ele-

ment requires proof that the firearm “helped, furthered, promoted,

or advanced the drug trafficking.” United States v. Timmons, 283

F.3d 1246, 1252 (11th Cir. 2002). There must be some nexus be-

tween the firearm and the drug-selling operation. Id. at 1253. Fac-

tors that we consider include whether the gun is accessible, loaded,

close in proximity to drugs, and the circumstances surrounding the

gun’s discovery. Id.

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10 Opinion of the Court 22-10332

Here, Hyde does not dispute that he possessed a gun or sold

drugs, thus the government need only to have proved that Hyde

brandished his gun to further his drug crimes. 18 U.S.C.

§ 924(c)(1)(A). The record shows that when the officers arrived at

Hyde’s home, there were numerous weapons in the room where

Hyde kept the drugs. The handgun Hyde possessed, along with

another loaded semiautomatic pistol, two loaded magazines, spare

pistol parts, ammunition, and a bulletproof vest, was in the same

bedroom as 30 bags of methamphetamine, 4 bags of marijuana, and

a digital scale. This evidence, along with Hyde’s testimony, was

sufficient for a jury to determine that Hyde brandished a firearm in

furtherance of his drug trafficking scheme and was not tenuous

enough to make his conviction shocking. See House, 684 F.3d at

1196. Thus, we affirm as to this issue.

V.

To preserve an issue for appeal, a defendant “must raise an

objection that is sufficient to apprise the trial court and the oppos-

ing party of the particular grounds upon which appellate relief will

later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th

Cir. 2007) (quotation marks omitted). However, “once a party has

preserved an issue, it ‘may make any argument in support of that

claim; parties are not limited to the precise arguments they made

below.’” United States v. Brown, 934 F.3d 1278, 1306-07 (11th Cir.

2019) (quoting Yee v. City of Escondido, 503 U.S. 519, 534, 112 S. Ct.

1522, 1532 (1992)).

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Error that is plain must be “clear under current law” for this

court to correct it. United States v. Olano, 507 U.S. 725, 734, 113 S.

Ct. 1770, 1777 (1993). “Clear under current law” means that “at

least where the explicit language of a statute or rule does not spe-

cifically resolve an issue, there can be no plain error where there is

no precedent from the Supreme Court or this Court directly resolv-

ing it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)

(quotation marks omitted). Further, we do not assign “preceden-

tial significance” to grants of certiorari by the Supreme Court. See

Thompson v. United States, 924 F.3d 1153, 1156 n.4 (11th Cir. 2019).

Until the Supreme Court issues a decision that changes the law, we

must follow binding precedent. Id.

Federal law binds the construction of the Armed Career

Criminal Act (“ACCA”), and state law governs the analysis of the

elements of state-law crimes. United States v. Braun, 801 F.3d 1301,

1303 (11th Cir. 2015). In United States v. Jackson, we held that the

federal controlled-substances schedules, in effect at the time of a

previous state conviction, govern whether a conviction qualifies as

an ACCA predicate. 55 F.4th 846, 856 (11th Cir. 2022).

Here, as an initial matter, we review the district court’s find-

ing on this issue for plain error because Hyde’s objection that his

cocaine charge was dismissed “because of entrapment” did not suf-

ficiently put the trial court, and the government, on notice that he

would later appeal his sentence under Jackson. See Straub, 508 F.3d

at 1011. The record demonstrates that Hyde cannot show that the

district court plainly erred because he has cited no binding

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12 Opinion of the Court 22-10332

precedent holding that his 2003 Florida cocaine conviction does not

qualify as an ACCA predicate offense. Instead, Hyde argues that,

if the Supreme Court overrules Jackson, his 2003 Florida cocaine

conviction would no longer serve as an ACCA predicate offense.

Although the outcome of the Supreme Court’s decision might

change our analysis in our earlier panel decision in Jackson, a grant

of certiorari has no precedential value on this case before us. See

Thompson, 924 F.3d at 1156 n.4. Thus, we conclude the district

court did not plainly err in determining that Hyde’s 2003 Florida

conviction qualifies as an ACCA predicate offense. Accordingly,

we affirm as to this issue.

VI.

Facts that increase mandatory minimum sentences must be

submitted to a jury and proven beyond a reasonable doubt. Alleyne

v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 2155 (2013). But

the fact of a prior conviction is not an “element” of the crime that

must be submitted to the jury. Almendarez-Torres v. United States,

523 U.S. 224, 243-47, 118 S. Ct. 1219, 1230-33 (1998); see Alleyne, 570

U.S. at 111 n.1, 2159-60 n.1 (declining to revisit Almendarez-Torres).

In Almendarez-Torres, the Supreme Court held that the government

need not prove beyond a reasonable doubt that a defendant had

prior convictions, or allege those prior convictions in the indict-

ment, to use those convictions to enhance a defendant’s sentence.

523 U.S. at 243-47, 118 S. Ct. at 1230-33.

As he concedes, Hyde’s argument is foreclosed by Al-

mendarez-Torres. We are bound to follow Almendarez-Torres until it

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is overturned by the Supreme Court or this court sitting en banc.

See Archer, 531 F.3d at 1352. Thus, the district court was entitled to

apply the ACCA enhancement to Hyde’s sentence based on his

prior convictions. See Almendarez-Torres, 523 U.S. at 226-27.

Based on the aforementioned reasons, we affirm Hyde’s

convictions and sentence.

AFFIRMED.