United States v. Jemone Lawrence Walker

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 30, 2019
• Docket: 19-10792
• Status: Unpublished

Opinion

Case: 19-10792 Date Filed: 10/30/2019 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10792 Non-Argument Calendar ________________________

D.C. Docket No. 3:18-cr-00045-BJD-JRK-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEMONE LAWRENCE WALKER,

Defendant - Appellant.

________________________

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

(October 30, 2019)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM: Case: 19-10792 Date Filed: 10/30/2019 Page: 2 of 14

Jemone Lawrence Walker appeals his conviction and sentence for being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

He first contends that his conviction should be vacated because § 922(g) is

unconstitutional, as it does not require the government to prove that the firearm he

possessed had a substantial effect on interstate commerce. Second, he argues that

the district court improperly concluded that he was an armed career criminal under

the Armed Career Criminal Act (ACCA) because the elements clause of the ACCA

is unconstitutional and, regardless, a conviction under Florida’s robbery statute

does not constitute a “violent felony” under the elements clause. And third, he

asserts that the district court deprived him of an opportunity to allocute at

sentencing, and therefore he is entitled to a new sentencing hearing.

Our precedent bars Walker’s first argument, as we have repeatedly and

unreservedly rejected arguments that § 922(g) exceeds Congress’s Commerce

Clause authority. We also reject Walker’s argument that the elements clause is

unconstitutional. And—as both our court and the Supreme Court have held—we

conclude that a Florida conviction for armed robbery constitutes a violent felony

under the elements clause of the ACCA. However, we agree with Walker that the

district court erred when it failed to address him personally and provide him with

an opportunity to allocute. So, although we affirm his conviction, we vacate his

sentence and remand for resentencing so that Walker may allocute.

2 Case: 19-10792 Date Filed: 10/30/2019 Page: 3 of 14

BACKGROUND

Walker was charged in a one-count indictment. Before his trial, Walker

moved to dismiss the indictment, arguing that § 922(g) was unconstitutional both

facially and as applied to him because that section does not require the government

to prove that a firearm had a substantial effect on interstate commerce. Citing our

precedent, the district court denied the motion.

The case went to trial. There, the government called Special Agent John

Prowley of the Bureau of Alcohol, Tobacco, and Firearms to present evidence that

Walker was in possession of a firearm after having been convicted of a felony.

Agent Prowley testified that he had received special training on how to examine

firearms and determine where they were made and how they were made. He

testified that he examined the firearm in question and determined that it was a

Rohm Model RG10, which is a German-made firearm. He further stated that he

was able to determine that the firearm was made in Germany based on the “made

in Germany” stamp on the barrel and two quality-control stamps on the frame of

the firearm. He also said that the firearm was likely made before 1968 since the

Gun Control Act banned the importation of that firearm.

After the close of evidence, Walker moved for a judgment of acquittal,

arguing that the government presented insufficient evidence that he possessed a

firearm that affected foreign commerce in any way. The court denied the motion.

3 Case: 19-10792 Date Filed: 10/30/2019 Page: 4 of 14

And it denied another motion for judgment of acquittal and to dismiss the

indictment. A jury then found Walker guilty.

Citing multiple prior felonies, Probation designated Walker as an armed

career criminal under U.S.S.G. § 4B1.4. Probation listed the following convictions

to support this enhancement: armed robbery and attempted armed robbery

committed on June 6, 2004, unarmed robbery committed on January 18, 2011, and

attempted robbery committed on February 14, 2011. Walker objected to this

enhancement, arguing that Florida robbery—armed or not—does not qualify as a

“violent felony” under the ACCA’s elements clause. And he noted that the issues

he raised were pending before the Supreme Court. See Stokeling v. United States,

584 U.S. ___,138 S. Ct. 1438 (2018) (granting petition for a writ of certiorari).

Before his sentencing, the Supreme Court issued a decision in Stokeling v.

United States, 586 U.S. ___, 139 S. Ct. 544 (2019) (holding that Florida robbery

qualifies as a violent felony under the elements clause of the ACCA). Walker then

filed a supplemental memorandum in support of his objection to the presentence

report’s (PSR) classification of him as an armed career criminal. He argued that

even after Stokeling he was still not an armed career criminal because the elements

clause itself was unconstitutionally vague under the Supreme Court’s reasoning in

Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 2563 (2015). He further

argued that even if the elements clause of the ACCA passed constitutional muster,

4 Case: 19-10792 Date Filed: 10/30/2019 Page: 5 of 14

he was still not an armed career criminal, because robbery by “putting in fear” did

not satisfy the elements clause, as it did not require the “threatened use” of

physical force. And even though we said in United States v. Lockley, 632 F.3d

1238, 1244 (11th Cir. 2011), that “putting in fear” qualified under the elements

clause, Walker argued that Stokeling compelled a different result. The district

court overruled Walker’s objection, concluding that Stokeling and our precedent

required as such.

After the district court addressed the parties’ objections to the PSR and the

parties made their arguments in support of their proposed sentences, the district

court asked if there was any reason why the sentence should not be pronounced.

Walker’s attorney responded, “no.” However, immediately thereafter, the court

stated, “I’m sorry. I just want to make sure. Does Mr. Walker want to make a

statement to the Court?” In response, Walker’s attorney stated, “[h]e does not.”

The district court stated, “[v]ery good,” and sentenced Walker to 188 months’

imprisonment, followed by 3 years of supervised release. Walker then objected to

“the sentence and the manner in which it was imposed,” which the district court

overruled.

DISCUSSION

I.

5 Case: 19-10792 Date Filed: 10/30/2019 Page: 6 of 14

Generally, we review the constitutionality of a statute de novo, as it is a

question of law. United States v. Wright, 607 F.3d 708, 715 (2010). But under our

prior-precedent rule, we are bound to follow a prior binding precedent “unless and

until it is overruled by this court en banc or by the Supreme Court.” United States

v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003).

Walker believes that § 922(g) is facially unconstitutional because it does not

require the government to prove that the firearm he possessed had a substantial

effect on interstate commerce. Yet “[w]e have repeatedly held that Section

922(g)(1) is not a facially unconstitutional exercise of Congress’s power under the

Commerce Clause because it contains an express jurisdictional requirement.”

United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); see also United

States v. Scott, 263 F.3d 1270, 1273–74 (11th Cir. 2001) (concluding that the

jurisdictional element of the statute immunizes § 922(g)(1) from facial

constitutional attack); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.

1996) (holding that § 922(g)(1) is constitutional because of its jurisdictional

element). Through the statute, Congress specifically prohibits 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). By including the phrase

words “in or affecting commerce,” Congress indicated its “intent to assert its full

6 Case: 19-10792 Date Filed: 10/30/2019 Page: 7 of 14

Commerce Clause power.” Wright, 607 F.3d at 715. Therefore, the express

jurisdiction requirement in § 922(g) defeats Walker’s facial challenge to the

constitutionality of § 922(g)(1) because it is a regulation of guns with an explicit

connection to interstate commerce. See McAllister, 77 F.3d at 390. Undoubtedly,

“[w]hen viewed in the aggregate, a law prohibiting the possession of a gun by a

felon stems the flow of guns in interstate commerce to criminals.” Id.

Alternatively, Walker argues that § 922(g) is unconstitutional as applied

because it does not require the government to prove that the firearm he possessed

had a substantial effect on interstate commerce. We have categorically rejected

similar arguments and do so again today. See Jordan, 635 F.3d at 1189-90; Scott,

263 F.3d at 1274; McAllister, 77 F.3d at 390. There is no requirement for an

individualized showing of a “substantial” effect on interstate commerce.

McAllister, 77 F.3d at 390. Instead, Ҥ 922(g) only requires that the government

prove some minimal nexus to interstate commerce,” and the government may meet

its burden by showing that the particular firearm “traveled in interstate commerce.”

Wright, 607 F.3d at 715 (internal quotations marks omitted).

The government met that burden here. Special Agent Prowley presented

evidence that Walker was in possession of a Rohm Model RG10, a German-made

firearm. The firearm was made in Germany, based on the stamp on its barrel and

two quality-control stamps on its frame. It manifestly traveled through interstate

7 Case: 19-10792 Date Filed: 10/30/2019 Page: 8 of 14

commerce and therefore satisfied the minimal nexus requirement. And contrary to

Walker’s arguments, United States v. Lopez, 514 U.S. 549 (1995) does not change

our analysis. See McAllister, 77 F.3d at 389–90 (rejecting appellant’s argument

that Lopez implicates § 922(g)).

In sum, we conclude that Walker’s challenges to the constitutionality of

§ 922(g) (both facially and as applied) lack merit and thus do not establish

reversible error. And as the government presented evidence that the firearm

Walker possessed traveled in interstate commerce, we further conclude that the

minimal-nexus requirement was satisfied in this case. Accordingly, we affirm in

this respect.

II.

We review de novo whether a prior conviction is a “violent felony” within

the meaning of the ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th

Cir. 2014). But again, our prior-precedent rule binds us to our past decisions

unless and until they are overruled by the Supreme Court or this court sitting en

banc. Brown, 342 F.3d at 1246.

Walker argues that he was erroneously sentenced as an armed career

criminal under the ACCA. His view is that the elements clause is

unconstitutionally vague for the same reasons the Supreme Court has held the

residual clause to be invalid. We disagree.

8 Case: 19-10792 Date Filed: 10/30/2019 Page: 9 of 14

The Supreme Court struck down the ACCA’s residual clause as

unconstitutionally vague in Johnson v. United States, 135 S. Ct. at 2563. It held

that “the indeterminacy of the wide-ranging inquiry required by the residual clause

both denie[d] fair notice to defendants and invite[d] arbitrary enforcement by

judges” and therefore denied defendants sentenced pursuant to the residual clause

their due-process rights. Id. at 2557. But the Court noted that its decision did not

“call into question [the] application of the [ACCA] to the four enumerated

offenses, or the remainder of the [ACCA]’s definition of a violent felony,”

including the elements clause. Id. at 2563. So, the holding of Johnson does not

support Walker’s claim.

Even so, Walker insists that we use Johnson’s logic to invalidate the

elements clause. He says that Stokeling compels this result as it demonstrates that

the elements clause is “unworkable.” We do not agree. In Stokeling, the Supreme

Court reasoned that because a robbery offense that requires a criminal to overcome

the victim’s resistance necessitates the use of physical force, it constitutes a

predicate violent felony under the ACCA’s elements clause. See Stokeling 139 S.

Ct. at 549–54. Because Florida robbery requires physical force, the Court held that

it categorically qualifies as a violent felony under the elements clause. Id. at 555.

The decision is Stokeling was thus premised on the elements clause. And we

refuse to read a case that finds that Florida robbery qualifies as a violent felony

9 Case: 19-10792 Date Filed: 10/30/2019 Page: 10 of 14

under the elements clause as also bringing the elements clause’s constitutionality

into doubt.

We also reject Walker’s contention that, even after Stokeling, Florida

robbery should not qualify as a violent felony. But even if Stokeling did not

mandate this outcome, our own precedent would foreclose this argument. See

Lockley, 632 F.3d at 1241–43, 1245 (finding that a robbery conviction under Fla.

Stat. § 812.13(1) is categorically a crime of violence under § 4B1.2(a)’s

enumerated-offenses and elements clauses); United States v. Fritts, 841 F.3d 937,

940–943 (11th Cir. 2016) (applying Lockley to hold that a Florida robbery

conviction under Fla. Stat. § 812.13 categorically qualifies as a violent felony

under the ACCA).1

Walker is aware of our precedent but contends that Lockley should not be

binding because it failed to consider then-existing Supreme Court precedent in

Leocal v. Ashcroft, 543 U.S. 1 (2004) (holding that petitioner’s conviction under

Fla. Stat. § 316.193(3)(c)(2) for driving under the influence of alcohol was not a

crime of violence under 18 U.S.C. § 16). Moreover, he believes both Lockley and

Fritts were abrogated by Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001

1 Note that we have repeatedly read the definition of a violent felony under § 924(e) of the ACCA as virtually identical to the definition of a crime of violence under U.S.S.G. § 4B1.2. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). Because of this strong similarity, we consider cases interpreting one as authority in cases interpreting the other. See United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010). 10 Case: 19-10792 Date Filed: 10/30/2019 Page: 11 of 14

(2015). He is wrong on both counts. Leocal does not undermine Lockley because

“[u]nder this Court’s prior panel precedent rule, there is never an exception carved

out for overlooked or misinterpreted Supreme Court precedent.” Fritts, 841 F.3d

at 942. As for Elonis, nothing in that case abrogates our decisions in Lockley or

Fritts. In Elonis, the Supreme Court determined whether a federal threat statute

required proof that the defendant was “aware of the threatening nature of the

communication, and—if not—whether the First Amendment requires such a

showing.” Elonis, 135 S. Ct. at 2004. It did not address the ACCA. See generally

id.

Accordingly, the district court properly classified Walker as an armed career

criminal and we affirm in that respect.

III.

We review the legality of a criminal sentence de novo. United States v.

Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002). The right of allocution requires a

sentencing court to “address the defendant personally in order to permit [him] to

speak or present any information to mitigate the sentence.” Fed. R. Crim. P.

32(i)(4)(A)(ii). The right to allocution is “firmly entrenched in our criminal

jurisprudence.” United States v. Machado, 886 F.3d 1070, 1087 (11th Cir. 2018).

“It provides a defendant the opportunity to plead personally with the district court

11 Case: 19-10792 Date Filed: 10/30/2019 Page: 12 of 14

for leniency in sentencing and to state any potentially mitigating factors for

consideration.” Id.

“[A] district court’s failure to afford a defendant the right of allocution will

be reviewed only for plain error where the defendant did not timely object.”

Prouty, 303 F.3d at 1251. To properly object, the defendant must do so in a way

that is “sufficient to apprise the trial court and the opposing party of the particular

grounds upon which appellate relief will later be sought[,]” and “[t]he objection

must be raised in such clear and simple language that the trial court may not

misunderstand it.” United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007)

(internal quotation mark omitted).

Under the plain error rule, we reverse 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) (internal quotation marks omitted).

An error is some “deviation from a legal rule.” Puckett v. United States, 556 U.S.

129, 135 (2009) (alteration accepted). That error is plain when the legal rule is

already clearly established. United States v. Hesser, 800 F.3d 1310, 1325 (11th

Cir. 2015) (per curiam). A defendant who has not been given his allocution right

will generally receive a presumption of prejudice for the third prong of plain error

review, even if the defendant received a sentence at the low end of his guideline

12 Case: 19-10792 Date Filed: 10/30/2019 Page: 13 of 14

range, because of the possibility of variances below the guideline range. Doyle,

857 F.3d at 1120–21. We have held that an allocution error automatically satisfies

the fourth prong if the third requirement is met because of the central role

allocution plays in sentencing. See id. at 1118; United States v. Perez, 661 F.3d

568, 586 (11th Cir. 2011).

We have previously found that a district court committed plain error when it

directed the question of whether the defendant would be allocating to the

defendant’s attorney rather than to the defendant. See, e.g., Machado, 886 F.3d at

1087 (reasoning that the district court’s failure to address the defendant personally

about his right to allocution constituted a plain error); Perez, 661 F.3d at 584

(holding that the district court plainly erred by directing the question, “will the

defendant be allocating?” to the defendant’s attorney, even though the defendant’s

attorney conferred with the defendant (alterations accepted)).

Although he contends that he objected to the manner in which the district

court imposed his sentence, such objection was insufficient to apprise the court of

the particular grounds upon which appellate relief would later be sought—that he

was deprived of his opportunity to allocute.

Substantively, and as the government concedes, the district court committed

plain error by not addressing Walker personally to inquire if he would like to speak

in allocution. This error was plain in light of our prior precedent and Federal Rule

13 Case: 19-10792 Date Filed: 10/30/2019 Page: 14 of 14

of Criminal Procedure Rule 32. See Machado, 886 F.3d at 1087; Perez, 661 F.3d

at 584. Walker was prejudiced because he was sentenced to 188 months’

imprisonment, which was 8 months above the statutory minimum sentence. And

because the third requirement is satisfied, the fourth is automatically satisfied. See

Doyle, 857 F.3d at 1120–21. Accordingly, we vacate Walker’s sentence and

remand so that Walker may be afforded his right of allocution.

CONCLUSION

In summary, we reject Walker’s argument that § 922(g) exceeds Congress’s

Commerce Clause authority and reject Walker’s challenges to his designation as an

armed career criminal. But we find that the district court plainly erred when it

failed to address him personally and provide him with an opportunity to allocute.

Therefore, we affirm Walker’s conviction but vacate his sentence and remand for

resentencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS.