United States v. Alfred Wayne Lee, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 25, 2019
• Docket: 18-15337
• Status: Unpublished

Opinion

Case: 18-15337 Date Filed: 10/25/2019 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15337 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20604-FAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFRED WAYNE LEE, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 25, 2019)

Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-15337 Date Filed: 10/25/2019 Page: 2 of 3

Alfred Lee, Jr. appeals his sentence of 180 months of imprisonment for

possessing a firearm as a convicted felon. 18 U.S.C. § 922(g)(1). Lee argues that

section 922(g) is unconstitutional because intrastate gun possession by a convicted

felon does not have a substantial effect on interstate commerce, and he argues that

the enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), based on facts about prior convictions not alleged in his indictment and

that were not proved to a jury violated his rights under the Fifth and Sixth

Amendments. We affirm.

We ordinarily review de novo the constitutionality of a statute and a

sentence, but because Lee raises his arguments for the first time on appeal, we

review for plain error. See United States v. Wright, 607 F.3d 708, 715 (11th Cir.

2010) (section 922(g)); United States v. Harris, 741 F.3d 1245, 1248 (11th Cir.

2014).(sentence enhancement). To establish plain error, Lee must prove that error

occurred that was plain and that affected his substantial rights. See Wright, 607

F.3d at 715.

No error, much less plain error, occurred in sentencing Lee because, as he

concedes, his arguments are foreclosed by our precedents. We have held that “the

jurisdictional 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,” United States v. Scott, 263 F.3d 1270, 1273 (11th

2 Case: 18-15337 Date Filed: 10/25/2019 Page: 3 of 3

Cir. 2001), and that section 922(g)(1) is constitutional as applied to a defendant

who possesses a firearm that “traveled in interstate commerce,” United States v.

McAllister, 77 F.3d 387, 390 (11th Cir. 1996). See Wright, 607 F.3d at 715–16.

And in Almendarez–Torres v. United States, 523 U.S. 224, 228–47 (1998), the

Supreme Court held that a prior conviction “relevant only to the sentencing of an

offender found guilty of the charged crime” does not have to be charged in an

indictment or proven beyond a reasonable doubt to a jury, even if it increases the

defendant’s maximum statutory sentence. Almendarez-Torres remains the law until

overruled by the Supreme Court, and it expressly refused to do so in Alleyne v.

United States, 570 U.S. 99 (2013). Harris, 741 F.3d at 1249.

We AFFIRM Lee’s sentence.