United States v. Jemone Lawrence Walker

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 24, 2020
• Docket: 20-10479
• Status: Unpublished

Opinion

USCA11 Case: 20-10479 Date Filed: 11/24/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10479 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 ________________________

(November 24, 2020)

Before WILSON, MARTIN and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10479 Date Filed: 11/24/2020 Page: 2 of 6

Jemone Walker appeals his 180-month sentence for being a felon in

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

argues that the district court lacked jurisdiction to hear his case because his

indictment was deficient under Rehaif v. United States, 139 S. Ct. 2191 (2019).

The government argues that Walker’s argument is barred under the law of the case

doctrine because he failed to raise it during his first appeal. 1

We review de novo the application of the law of the case doctrine. See

United States v. Bobo, 419 F.3d 1264, 1267 (11th Cir. 2005). “The district court’s

subject-matter jurisdiction is a question of law subject to de novo review.” United

States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (per curiam)

(emphasis removed). Issues or claims not clearly raised by a party on appeal are

considered abandoned. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th

Cir. 2003). However, “parties may not waive a jurisdictional defect.” United

States v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016).

The law of the case doctrine directs that “previously decided” issues—

findings of fact and conclusions of law made by an appellate court—are generally

binding in subsequent proceedings in the same case. Luckey v. Miller, 929 F.2d

1 Walker filed his first appeal in 2019, arguing that he was erroneously sentenced under the Armed Career Criminal Act (ACCA), he was sentenced without an opportunity to allocute, and the felon-in-possession statute was unconstitutional. We affirmed his challenges to the ACCA and the constitutionality of the felon-in-possession statute but remanded to the district court to give him an opportunity to allocute—which it did. 2 USCA11 Case: 20-10479 Date Filed: 11/24/2020 Page: 3 of 6

618, 621 (11th Cir. 1991). The doctrine “encompass[es] issues decided by

necessary implication as well as those decided explicitly.” Id. However, the

doctrine does not prevent us from considering “matters that could have been, but

were not, resolved in earlier proceedings.” Id. at 621–22 (concluding that this

court’s summary denial of a petition for rehearing en banc did not trigger the

doctrine because no inference could be made regarding its opinion of the merits of

the case, notwithstanding a dissenting opinion). The doctrine is a rule of judicial

practice and, as such, is not jurisdictional in nature. United States v. Anderson, 772

F.3d 662, 668 (11th Cir. 2014).

“[A] legal decision made at one stage of the litigation, unchallenged in a

subsequent appeal when the opportunity existed, becomes the law of the case for

future stages of the same litigation.” United States v. Escobar-Urrego, 110 F.3d

1556, 1560 (11th Cir. 1997). In United States v. Fiallo-Jacome, we determined

that the defendant had waived his right to raise a number of alleged trial errors in

his second direct appeal that followed his resentencing where he could have raised

each of those errors in first direct appeal. 874 F.2d 1479, 1480–83 (11th Cir. 1989)

(noting that “all of the factual predicates” for the defendant’s arguments in his

second appeal “were entirely or largely available” based on the records from the

trial and sentencing of the defendant and his codefendant). Under those

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circumstances, we determined that it was not appropriate to allow the defendant

“two bites at the appellate apple.” Id. at 1482.

When the Supreme Court overturns binding precedent of this court after the

appellant has filed his initial brief, we permit the appellant “to raise in a timely

fashion thereafter an issue or theory based on that new decision while his direct

appeal is still pending in this [c]ourt.” United States v. Durham, 795 F.3d 1329,

1330–31 (11th Cir. 2015) (en banc).

Section 922(g)(1) states: “It 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). Section 924(a)(2) states that “[w]hoever

knowingly violates [§ 922(g)] shall be fined as provided in this title, imprisoned

not more than 10 years, or both.” Section 924(e)(1) states: “[A] person who

violates section 922(g) of this title and has three previous convictions . . . for a

violent felony or a serious drug offense, or both . . . shall be fined under this title

and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).

In Rehaif, which was decided on June 21, 2019, the Supreme Court clarified

that, in prosecuting an individual 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

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that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” 139 S. Ct. at 2200.

An indictment sufficiently alleges a crime and therefore confers jurisdiction

on the district court if the indictment “track[s] the statutory language and stat[es]

approximately the time and place of an alleged crime.” United States v. Moore,

954 F.3d 1322, 1332 (11th Cir. 2020). In Moore, we held that failure to allege that

the defendants knew of their felon status in an indictment under 18 U.S.C. § 922(g)

that did not include § 924(a)(2) did not deprive the district court of jurisdiction,

even though it was defective based on Rehaif, because the indictment met the “not

demanding” standard for alleging a crime set forth above. Id. at 1332–37; see also

United States v. Bates, 960 F.3d 1278, 1284, 1295 (11th Cir. 2020) (addressing a

Rehaif challenge to a conviction under § 922(g)(1) and § 924(e) and noting

Moore’s holding that a Rehaif-based defect in an indictment is non-jurisdictional).

Because Rehaif was decided while Walker’s prior appeal was pending in this

court, Walker had the opportunity to raise his Rehaif claim in his prior appeal.

Therefore, his argument is precluded by the law of the case. Further, while he

contends that the issue is jurisdictional and therefore not subject to waiver, our

decision in Moore forecloses this argument. See United States v. Romo-Villalobos,

674 F.3d 1246, 1251 (11th Cir. 2012) (“Under the prior precedent rule, we are

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bound to follow a prior binding precedent unless and until it is overruled by this

court en banc or by the Supreme Court.”). Therefore, we affirm the district court.

AFFIRMED.