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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10956 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00090-SDM-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 29, 2019)
Before TJOFLAT, JORDAN and HULL, Circuit Judges.
PER CURIAM: Case: 18-10956 Date Filed: 03/29/2019 Page: 2 of 18
After pleading guilty, Isaac Thomas appeals his convictions for possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (“Count 1”), and possession of a firearm within 1,000 feet of a school
zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“Count 2”). For the
first time on appeal, Thomas argues that both his Count 1 and Count 2 firearm
convictions should be vacated because the § 922(g)(1) and (q) statutes violate the
Commerce Clause and are therefore unconstitutional. Thomas also contends that
his Count 1 conviction should be vacated because his indictment and plea colloquy
were deficient by failing to establish that he knew that he was a convicted felon at
the time he possessed the firearm. After careful review, we affirm Thomas’s
convictions.
I. FACTUAL BACKGROUND
A. Offense Conduct
In January 2017, a fight broke out at a basketball game at a public high
school in Plant City, Florida. After the game ended, several people, including
Thomas, resumed the fight a few blocks away from the school. Local law
enforcement officers responded to the scene.
One officer saw Thomas holding a firearm, which Thomas fired. Thomas
then took his firearm, ran down a road, and got into a car. Officers pursued the car
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until it crashed. At that point, Thomas abandoned the car and fled on foot. As
Thomas attempted to flee, he was shot by an officer and apprehended.
Officers recovered a Ruger 9 millimeter firearm, loaded with six live rounds
of 9 millimeter ammunition, approximately ten feet from where Thomas was
apprehended. They also found a spent 9 millimeter shell casing in the place where
Thomas was standing when he fired the weapon. In later interviews with law
enforcement officers, Thomas admitted to possessing the Ruger 9 millimeter
firearm and to firing it.
As a result, a grand jury indicted Thomas on Count 1, possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and Count 2, possession of a firearm within 1,000 feet of a school zone, in
violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4). Under Count 1, the
indictment alleged that Thomas was prohibited from possessing a firearm due to a
2012 felony conviction for attempted carjacking. The indictment did not allege
that Thomas was aware of his convicted felon status at the time of the instant
unlawful firearm possession.
B. Guilty Plea
Thomas pled guilty pursuant to a written plea agreement. The plea
agreement contained a factual basis, which established (1) Thomas’s convicted
felon status based on his 2012 attempted carjacking conviction, and (2) that the
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Ruger 9 millimeter firearm he possessed traveled in or affected interstate
commerce because it was manufactured outside of Florida, where the instant
offense occurred. Specifically, Alcohol, Tobacco, Firearms, and Explosives
Special Agent Walt Lanier examined the firearm and determined that it was
manufactured in Arizona. There was nothing in the plea agreement’s factual basis
indicating whether Thomas was aware of his prohibited felon status when he
possessed the firearm.
At Thomas’s change-of-plea hearing, a magistrate judge asked Thomas if he
had a chance to discuss his plea agreement with his counsel, and Thomas said yes.
The magistrate judge summarized the elements of Thomas’s two charges. As to
Count 1, the magistrate judge stated that the government would be required to
prove that: (1) before possessing the firearm on or about January 20, 2017, Thomas
was a convicted felon whose rights had not been restored; (2) on or about January
20, 2017, Thomas knowingly possessed the Ruger 9 millimeter firearm; and (3) the
Ruger 9 millimeter firearm affected interstate commerce, that is, it was
manufactured outside the State of Florida. As to Count 2, the magistrate judge
explained that the government would be required to prove that: (1) Thomas
knowingly possessed the Ruger 9 millimeter firearm within 1,000 feet of a school
zone; (2) Thomas had reason to believe that he was in a school zone; (3) the
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firearm had traveled in or affected interstate commerce at some point during its
existence; and (4) Thomas acted knowingly.
The magistrate judge asked Thomas if he understood his charges and the
elements of his offenses, and Thomas responded yes. Thomas then pled guilty to
Counts 1 and 2. After being questioned by the magistrate judge, Thomas also
confirmed that he was a convicted felon at the time he possessed the 9 millimeter
firearm near the school, and Thomas’s counsel stated that the government would
have been able to prove Thomas’s convicted felon status and that the firearm
traveled in interstate commerce.
The magistrate judge then found that Thomas was competent and capable of
entering an informed plea, his plea was knowingly made, and his plea was
supported by an independent basis in fact containing all of the essential elements of
his offenses. The magistrate judge recommended that Thomas’s guilty plea be
accepted. Without objection, the district court accepted Thomas’s guilty plea and
adjudged him guilty.
C. Sentencing
Thomas’s presentence investigation report (“PSI”) assigned him a total
offense level of 34 and a criminal history category of III. Based on a total offense
level of 34 and a criminal history category of III, Thomas’s advisory guidelines
range was 188 to 235 months’ imprisonment.
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However, the statutorily authorized maximum sentences for Count 1 under
§§ 922(g)(1) and 924(a)(2) and Count 2 under §§ 922(q)(2)(A) and 924(a)(4) were
less than the minimum of Thomas’s guidelines range of 188 to 235 months’
imprisonment. Under §§ 922(g)(1) and 924(a)(2), the maximum term of
imprisonment is ten years, and under §§ 922(q)(2)(A) and 924(a)(4), the maximum
term of imprisonment is five years. Also, the term of imprisonment for Count 2
under §§ 922(q)(2)(A) and 924(a)(4) had to run consecutive to any other term of
imprisonment imposed. See 18 U.S.C. § 924(a)(4). Therefore, Count 1’s adjusted
advisory guidelines range was reduced to 120 months’ imprisonment, the statutory
maximum. See U.S.S.G. § 5G1.1(a) (providing that, “[w]here the statutorily
authorized maximum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the guideline
sentence.”). Count 2’s adjusted advisory guidelines range was reduced to 60
months’ imprisonment, the statutory maximum. See id.
Thomas filed objections to the PSI that are not relevant to his appeal. Prior
to sentencing, Thomas also filed a sentencing memorandum and motion for a
downward variance, requesting that the district court impose a total sentence of 70
months’ imprisonment. In both his objections to the PSI and his sentencing
memorandum, Thomas did not argue (1) that § 922(g)(1) and (q) were
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unconstitutional, or (2) that the indictment or plea colloquy omitted an essential
element of either of his charges.
At sentencing, the district court sustained some of Thomas’s objections and
revised his total offense level to 32. Thomas’s criminal history category remained
at III. Based on a total offense level of 32 and a criminal history category of III,
Thomas’s revised advisory guidelines range was 151 to 188 months’
imprisonment. See U.S.S.G. Ch. 5 Part A.
The district court heard the parties’ sentencing arguments and Thomas’s
allocution. Thomas’s counsel requested a 70-month total sentence and the
government requested 180 months. Thomas’s counsel again did not raise any
constitutional challenges to § 922(g)(1) and (q) or argue that his indictment or plea
colloquy omitted essential elements.
After considering the advisory guidelines range, the applicable statutory
penalties, and the 18 U.S.C. § 3553(a) factors, the district court imposed the
statutory maximum sentences of 120 months as to Count 1 and 60 months as to
Count 2, to run consecutively.
II. 18 U.S.C. § 922(q): Possession of Firearm Near School
On appeal and for the first time, Thomas argues that his Count 2 conviction
under 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) should be vacated because § 922(q)
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is unconstitutional, both facially and as applied. 1 He notes that in United States v.
Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), the Supreme Court struck down the
Gun-Free School Zones Act of 1990, which was an earlier version of § 922(q),
because it exceeded Congress’s powers under the Commerce Clause. Although
Congress amended § 922(q) to comply with Lopez, Thomas argues that the
amended version is still unconstitutional because it did not cure the Commerce
Clause problems identified in Lopez and United States v. Morrison, 529 U.S. 598,
120 S. Ct. 1740 (2000). We review Lopez, Morrison, and then the amended
version of § 922(q).
A. Lopez and Morrison
In 1995, the Supreme Court held that a prior version of § 922(q), also known
as the Gun–Free School Zones Act of 1990, was unconstitutional because it
exceeded Congress’s authority under the Commerce Clause. Lopez, 514 U.S. at
551, 561-63, 115 S. Ct. 1626, 1630-32; see Pub. L. No. 101–647, 101 Stat. 4789,
1 We generally review the constitutionality of a statute de novo. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, where a defendant raises a constitutional challenge for the first time on appeal, we review only for plain error. Id. Under the plain error rule, we will reverse a district court’s decision only if there is: “(1) error, (2) that is plain, [] (3) that has affected the defendant’s substantial rights,” and (4) that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015) (quotation marks omitted). “An error is plain if it is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). “When the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.” United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks omitted). 8 Case: 18-10956 Date Filed: 03/29/2019 Page: 9 of 18
4844 (1990). The version of § 922(q) at issue in Lopez made it a federal offense
“knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551, 115 S. Ct.
at 1626.
The Supreme Court held that this version of § 922(q) violated the Commerce
Clause because it did not limit the offense to situations substantially affecting
interstate commerce. Id. at 561, 115 S. Ct. at 1630-31. In particular, the Lopez
Court pointed out that § 922(q) “contain[ed] no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession in question
affect[ed] interstate commerce.” Id. at 561, 115 S. Ct. at 1631. The Court also
observed that neither § 922(q) nor its legislative history contained express
congressional findings regarding the effects upon interstate commerce of gun
possession in a school zone. Id. at 562-63, 115 S. Ct. at 1631-32.
Subsequently in 2000, the Supreme Court struck down certain provisions of
the Violence Against Women Act as unconstitutional for exceeding Congress’s
authority under the Commerce Clause. Morrison, 529 U.S. at 605, 613, 617, 120
S. Ct. at 1747, 1751-52, 1754. While Morrison involved a wholly different statute,
Thomas cites Morrison for its dicta discussing the Lopez decision, its reasoning,
and its labeling of the “link between gun possession and a substantial effect on
interstate commerce” as attenuated. Id. at 609-14, 120 S. Ct. at 1749-52.
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B. Post-Lopez Amendment to 18 U.S.C. § 922(q)
Responding to Lopez, Congress amended § 922(q) to include an express
interstate commerce requirement. See Pub. L. No. 104–208, 110 Stat. 3009–369 to
370 (1996) (amending the Gun–Free School Zones Act of 1990). Section 922(q)
now requires that the offender “knowingly [] possess a firearm that has moved in
or that otherwise affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C.
§ 922(q)(2)(A) (emphasis added). Congress also amended § 922(q) to include
extensive congressional findings regarding the effects upon interstate commerce of
gun possession in a school zone. See 18 U.S.C. § 922(q)(1)(A)-(I).
C. Thomas’s Constitutional Claims
As an initial matter, because Thomas failed to raise his constitutional
challenge to § 922(q) below, we review it for plain error. See United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010).
Although Thomas argues that the amended § 922(q) is facially
unconstitutional based on Lopez, Congress amended § 922(q) to include an explicit
“affecting interstate commerce” element to cure the deficiencies identified in
Lopez. See 18 U.S.C. § 922(q)(2)(A) (providing that the offender must possess “a
firearm that has moved in or that otherwise affects interstate or foreign
commerce”). The amended § 922(q) also includes extensive congressional
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findings regarding the effects upon interstate commerce of gun possession in a
school zone post-Lopez, such as that firearms move easily in interstate commerce
and that they move in interstate commerce during their manufacturing process.
See 18 U.S.C. §§ 922(q)(1)(C), (D).
Thomas’s reliance on Morrison fares no better. Although the Supreme
Court in Morrison referenced an attenuated link between interstate commerce and
firearm possession in the pre-Lopez version of § 922(q), it did not address at all the
amended version of § 922(q), much less hold it is unconstitutional. See Morrison,
529 U.S. at 609-14, 120 S. Ct. at 1749-52.
The government stresses that Thomas has not shown that § 922(q) is
unconstitutional. Our sister circuits under de novo review have rejected
constitutional challenges to § 922(q) that were similar to Thomas’s. See United
States v. Nieves-Castano, 480 F.3d 597, 601 (1st Cir. 2007); United States v.
Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005); and United States v. Danks, 221 F.3d
1037, 1038-39 (8th Cir. 1999); see also Thomas More Law Ctr. v. Obama, 651
F.3d 529, 555 (6th Cir. 2011) (commenting that “[a]ll of the courts of appeals to
consider the question have upheld the amended [§ 922(q)] against commerce
clause challenges”). At a minimum, Thomas has failed to demonstrate plain error
as to the constitutionality of § 922(q) because neither the Supreme Court nor this
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Court has held that the amended § 922(q) is unconstitutional. See United States v.
Castro, 455 F.3d 1249, 1253 (11th Cir. 2006).
As to Thomas’s argument that § 922(q) is unconstitutional as applied to him,
the amended § 922(q) now requires a nexus to interstate commerce where the
firearm has moved in or otherwise affects interstate commerce. See 18 U.S.C.
§ 922(q)(2)(A). And the record here established that Thomas’s firearm had moved
in interstate commerce. The factual basis in Thomas’s plea agreement stated that
the firearm Thomas possessed traveled in or affected interstate commerce because
it was manufactured in Arizona and he possessed it in Florida. 2 Therefore,
Thomas has failed to show plain error as to the constitutionality of § 922(q), and
we affirm his Count 2 conviction under §§ 922(q)(2)(A) and 924(a)(4).
III. 18 U.S.C. § 922(g)(1): Felon in Possession of a Firearm
Thomas next argues, for the first time on appeal, that his Count 1 conviction
should be vacated because 18 U.S.C. § 922(g)(1) is unconstitutional, both facially
and as applied.
This Court has repeatedly held that § 922(g)(1) is not a facially
unconstitutional exercise of Congress’s power under the Commerce Clause.
Wright, 607 F.3d at 715. This is because § 922(g)(1) contains an express
2 As an additional point, at Thomas’s change-of-plea hearing, Thomas’s counsel confirmed that the government would have been able to prove at trial that the firearm traveled in interstate commerce. 12 Case: 18-10956 Date Filed: 03/29/2019 Page: 13 of 18
jurisdictional requirement. United States v. Scott, 263 F.3d 1270, 1273 (11th Cir.
2001). Specifically, 18 U.S.C. § 922(g)(1) provides that “[i]t 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 . . . .” 18 U.S.C. § 922(g)(1) (emphasis
added). This Court has explained that the phrase “in or affecting commerce” in
§ 922(g)(1) indicated Congress’s intent to assert its full Commerce Clause power.
Wright, 607 F.3d at 715; see also United States v. Nichols, 124 F.3d 1265, 1266
(11th Cir. 1997). 3
In addition, in Wright, this Court rejected the defendant’s challenge that
§ 922(g)(1) was unconstitutional as applied to him because § 922(g)(1) only
required that the government prove some minimal nexus to interstate commerce,
which was accomplished by demonstrating that the firearms the defendant
possessed were manufactured in a different state than the one in which the offense
took place. 607 F.3d at 715-16. In so ruling, this Court concluded that the
firearms necessarily traveled in interstate commerce, and, therefore, satisfied the
minimal nexus requirement. Id. at 716; see also United States v. McAllister, 77
F.3d 387, 389-90 (11th Cir. 1996) (holding that, even in the wake of Lopez, as
3 Thomas recognizes that this Court has already rejected his claim that § 922(g)(1) is unconstitutional in light of Lopez and Morrison, and, therefore, states that he is preserving his arguments for further review. 13 Case: 18-10956 Date Filed: 03/29/2019 Page: 14 of 18
long as the firearm in question has a minimal nexus to interstate commerce,
§ 922(g)(1) is constitutional as applied); United States v. Jordan, 635 F.3d 1181,
1189 (11th Cir. 2011) (holding that § 922(g)(1) is not unconstitutional as applied to
“a defendant who possessed a firearm only intrastate” because the government
demonstrated that the firearm moved in interstate commerce).
To begin, because Thomas failed to raise his constitutional challenge to
§ 922(g)(1) below, we review it for plain error. Wright, 607 F.3d at 715.
Thomas’s facial and as applied challenges to the constitutionality of § 922(g)(1)
fail. First, this Court’s precedent in Wright, Scott, McAllister, and Jordan establish
that § 922(g)(1) is facially constitutional, even considering the holding in Lopez.
See Jordan, 635 F.3d at 1189; Wright, 607 F.3d at 715-16; Scott, 263 F.3d at 1273;
McAllister, 77 F.3d at 389-90. Under the prior panel precedent rule, “a prior
panel’s holding is binding on all subsequent panels unless and until it is overruled
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).
Second, § 922(g)(1) is not unconstitutional as applied to Thomas, who
possessed the firearm only intrastate, because the record established that Thomas’s
firearm had moved in interstate commerce. See Jordan, 635 F.3d at 1189. As we
explained above, the factual basis in Thomas’s plea agreement stated that the
firearm Thomas possessed traveled in or affected interstate commerce because it
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was manufactured in Arizona and he possessed it in Florida. Therefore, Thomas
has failed to establish error, plain or otherwise, and we affirm his Count 1
conviction under §§ 922(g)(1) and 924(a)(2).
IV. Deficiency of Indictment and Plea Colloquy
Finally, Thomas argues, for the first time on appeal, that his Count 1
conviction is invalid because his indictment and plea colloquy failed to allege and
establish that he knew that, at the time of his possession, he was a convicted felon
prohibited from possessing a firearm. 4 Stated another way, he asserts that
§ 922(g)(1) includes a mens rea element that requires the government to establish
that he knew about his prohibited status as a convicted felon when he possessed the
firearm. 5
Under 18 U.S.C. § 922(g)(1), “[i]t 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
4 When a defendant challenges the adequacy of an indictment for the first time on appeal, “this Court must find the indictment sufficient unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” United States v. Pena, 684 F.3d 1137, 1147 (11th Cir. 2012) (quotation marks omitted). We review for plain error when a defendant fails to object in the district court to a claimed Federal Rule of Criminal Procedure 11 violation. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir. 2014). 5 Thomas does not dispute on appeal that he is a convicted felon. And at his change-of-plea hearing, Thomas confirmed that he was a convicted felon at the time he possessed the 9 millimeter firearm near the high school and Thomas’s counsel stated that the government would have been able to prove at trial that Thomas was a convicted felon. 15 Case: 18-10956 Date Filed: 03/29/2019 Page: 16 of 18
ammunition.” The penalty provision states “[w]hoever knowingly violates
subsection . . . (g) . . . of section 922 shall be . . . imprisoned not more than 10
years.” 18 U.S.C. § 924(a)(2).
“To prove that a defendant committed an offense under 18 U.S.C.
§ 922(g)(1), the government must show that (1) he[] knowingly possessed a
firearm or ammunition, (2) he[] was previously convicted of an offense punishable
by a term of imprisonment exceeding one year, and (3) the firearm or ammunition
was in or affecting interstate commerce.” United States v. Palma, 511 F.3d 1311,
1315 (11th Cir. 2008); see also United States v. Deleveaux, 205 F.3d 1292, 1296-
97 (11th Cir. 2000).
This Court has already held that § 922(g)(1) does not require proof that a
defendant knew that his firearm possession was unlawful due to his
convicted-felon prohibited status. United States v. Jackson, 120 F.3d 1226, 1229
(11th Cir. 1997). In Jackson, this Court explained that a review of the legislative
history of § 922(g)(1), particularly the predecessor statutes to § 922(g)(1), showed
that a defendant’s knowledge of his convicted-felon status and illegality of his
conduct were irrelevant. See id. (citing United States v. Langley, 62 F.3d 602,
604-06 (4th Cir. 1995)).
Rather, for an offense under § 922(g)(1), the government need prove only
that a defendant with a requisite felony conviction “knowingly” possessed a
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firearm. Deleveaux, 205 F.3d at 1298. That is, “[t]he prosecution need only show
that the defendant consciously possessed what he knew to be a firearm.” Id.; see
Palma, 511 F.3d at 1315 (“We have consistently held that § 922(g) is a strict
liability offense that ‘does not require the prosecution to prove that the criminal
acts were done with specific criminal intent.’”). Therefore, the only element of
§ 922(g)(1) that has a “knowing” mens rea requirement is possessing a firearm.
See Palma, 511 F.3d at 1315; United States v. Brantley, 68 F.3d 1283, 1290 (11th
Cir. 1995) (analogizing the mens rea showing required by §§ 922(g)(1) and 924(c)
and citing Langley for support that, because § 922(g)(1) requires proof of mens rea
as to possession of a firearm, there is no need to prove mens rea as to the other
elements).6
Here, Thomas’s argument—that his indictment and plea colloquy were
deficient because § 922(g)(1) requires that the government prove that he knew his
prohibited status when he possessed the firearm—is precluded by our binding
precedent. Section 922(g)(1) does not contain a mens rea requirement with respect
to the convicted-felon prohibited-status element. See Palma, 511 F.3d at 1315;
Deleveaux, 205 F.3d at 1296-98; Jackson, 120 F.3d at 1229. Although Thomas
argues that this Court’s precedent was wrongly decided, these decisions have not
6 Thomas acknowledges that this Court has rejected this argument as well, and, therefore, he advances it now for preservation purposes only. 17 Case: 18-10956 Date Filed: 03/29/2019 Page: 18 of 18
been overruled by the Supreme Court or this Court sitting en banc, and, therefore,
they remain binding precedent. See Archer, 531 F.3d at 1352; United States v.
Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc) (explaining that the
prior panel precedent rule controls even if the later panel is “convinced [the earlier
panel’s holding] is wrong.”). Accordingly, Thomas has failed to establish error,
plain or otherwise, and we affirm his Count 1 conviction under §§ 922(g)(1) and
924(a)(2).
V. CONCLUSION
For the reasons stated, we affirm Thomas’s Count 1 and Count 2
AFFIRMED.