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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13304
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20874-RSR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMIAH FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 2, 2014)
Before WILSON, JORDAN and FAY, Circuit Judges.
PER CURIAM:
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Jeremiah Flores pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and being an armed career criminal under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). He was sentenced to
180 months in prison, the statutory minimum under § 924(e)(1), and he now
appeals. He argues that the district court procedurally erred at sentencing by
failing to elicit fully articulated objections from him after his sentence was
imposed. He also argues that 18 U.S.C. § 922(g)(1) violates the Tenth Amendment
of the U.S. Constitution, and that the district court plainly erred by sentencing him
under an unconstitutional statute. After careful review of the parties’ briefs, we
affirm.
I. Flores’s Objections to his Classification under the ACCA
A. The Alleged Jones Violation
After the district court “states its factual findings, applies the guidelines, and
imposes sentence,” it must provide the parties the opportunity “to object to the
district court’s ultimate findings of fact and conclusions of law and to the manner
in which the sentence is pronounced.” United States v. Jones, 899 F.2d 1097, 1102
(11th Cir. 1990) (emphasis added), overruled on other grounds by United States v.
Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc) (per curiam). Flores claims that
the district court violated Jones in two ways by asking the following question after
imposing Flores’s sentence: “Now that [the] sentence has been imposed, does the
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defendant or his counsel object to the Court’s findings of fact or the manner in
which the sentence was pronounced?”
First, Flores appears to suggest that the court erred by failing to directly
elicit objections from the defendant, even where, as here, the defendant was
represented. Without suggesting that we would ever adopt such a rule, we reject
Flores’s claim because even if we were to adopt the proposed rule, it was satisfied.
The court specifically asked if “the defendant or his counsel object.”
Second, Flores claims that the court erred in eliciting objections only as to
“the Court’s findings of fact or the manner in which the sentence was
pronounced,” without mentioning, as required by Jones, the court’s conclusions of
law. In United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007) (per
curiam), we held that the district court violated Jones when the court asked only,
“Is there anything further?,” and the defendant raised no objections in response.
We noted in Campbell that “there [was] no indication that defense counsel
understood the court to be eliciting objections.” Id. Flores’s contention is
therefore premised on the notion that a party hearing an invitation to raise
objections to findings of fact or the manner of pronouncement of a sentence would
somehow not understand that the court was also eliciting objections generally,
including objections to conclusions of law.
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We reject this contention. The post-imposition question here signaled
clearly and obviously that the parties were invited to object. The question in
Campbell—“Is there anything further?”—could easily have been taken as an
inquiry wholly unrelated to objections, and indeed, defense responded by
requesting drug treatment for the defendant rather than by offering objections. Id.
Here, no such confusion was possible, and no one could seriously conclude that
objections to conclusions of law were not also invited. Defense counsel concedes
that she had no legal objections, so the plausibility of Flores’s contention is
weakened even further. A defendant would not parse the district court’s elicitation
and decline to raise objections to conclusions of law because the court only invited
objections to conclusions of fact and the manner in which the sentence was
imposed. The defendant’s failure to offer objections signaled only that he had
none—a conclusion confirmed by his failure to discuss any specific objections he
would have made at the time had the court given a perfect Jones elicitation.
B. Standard of Review
Regardless of whether a Jones violation occurred, it is appropriate to
consider the merits of Flores’s objections in this appeal. Flores’s brief states that,
as a result of the Jones violation, we should remand “to the district court for
resentencing so that Mr. Flores can articulate his specific objections to the district
court’s legal conclusions on his objections.” The objections on which the court
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rendered legal conclusions were found in a pro se brief filed by Flores. In that
filing, he objected to his classification as an armed career criminal in the
Presentence Investigation Report (PSI). The district court, after noting that it
would normally strike such pro se objections filed by represented defendants,
nevertheless overruled Flores’s objections on the merits, stating:
[I]t has been noted in the PS[I] addendum that that [Flores’s
objection] has been rejected by the Eleventh Circuit Court of Appeals.
But even if it had not, there are enough independent criminal history
points that the criminal history would come out to a level six whether
you were a career offender or not, I believe. If anybody thinks I’m
mistaken, I’ll hear that now. 1
In stating that he has “objections” to these legal conclusions, Flores is more
or less stating that he wants to appeal the district court’s decision. The court’s
alleged Jones violation did not deprive him of this opportunity. In United States v.
Weir, we held that when the “district court clearly underst[ands] the [party’s]
position and specifically reject[s] it[,] [t]his satisfie[s] the purpose of Jones to
allow the district court to make a studied decision on the objection.” 51 F.3d 1031,
1033 (11th Cir. 1995). Weir further held that objections which are raised and
addressed before the sentence is imposed need not be re-raised after the Jones
1
Jones required post-imposition elicitations to ensure that objections related to “what
transpire[d] at the sentencing hearing itself” would be addressed. 899 F.2d at 1102. The court’s
elicitation for anyone to state whether the court was mistaken seems to satisfy the purpose of
Jones but not its timing requirement. We have not held, however, that a Jones violation—failing
to elicit objections post-imposition—will be deemed harmless so long as the court elicited
objections at some point following the objectionable conduct, and we need not do so to decide
this case.
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elicitation in order to be preserved for appeal, id., so Flores’s pro se objections are
preserved. Rather than grant Flores remand, which is not warranted because it
does not appear a Jones violation occurred and which seems pointless given that
the objections Flores seeks to make were already considered and rejected by the
court to which we would remand, we will simply construe his “objections” to the
court’s legal conclusions as an appeal from the court’s decision to sentence him in
accord with the PSI.
We review sentences for reasonableness. United States v. Martin, 455 F.3d
1227, 1235 (11th Cir. 2006). We review the district court’s legal interpretations de
novo and its factual findings for clear error. Id. 2
C. The Merits of Flores’s ACCA Objections
Flores objected to his classification under the ACCA, claiming that his prior
convictions did not constitute “serious drug offense[s]” under § 924(e)(2)(A)(ii)
because the convictions failed to specify the quantity of drugs involved. In United
States v. Sanchez, we recognized that the prior drug offenses at issue there could
2
“Typically, when a defendant fails to object to an alleged error before the district court,
we review the argument only for plain error,” United States v. Johnson, 451 F.3d 1239, 1240
(11th Cir. 2006) (per curiam). Appellants claiming a Jones violation almost always do so in
order to avoid being subjected to plain error review. Here, as already discussed, based on Weir
and by virtue of the fact that Flores raised his objections below, Flores was never at risk of being
subjected to plain error review, so establishing a Jones violation would not help him unless he
has new objections, which he does not.
In any event, the remedy for a Jones violation is not automatic remand as Flores seems to
suggest. Where, as here, the record is sufficient to permit meaningful appellate review of any
objections, we may review such objections and remedy the Jones violation by reviewing under a
preserved error standard. See id. at 1242. Therefore, even if there were a Jones violation, the
remedy would be to review Flores’s objections as if they were preserved below.
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not be classified as “serious” for purposes of sentencing under 18 U.S.C. § 3559(c)
for this very reason. 586 F.3d 918, 929–30 (11th Cir. 2009). If such convictions
do not constitute “serious drug offense[s]” under § 3559(c), they should not under
§ 924(e), either, Flores claims.
We agree with the PSI’s conclusion, echoed by the district court, that this
case is not analogous to Sanchez. To be sure, the statute at issue in Sanchez, §
3559(c), and the statute at issue here, § 924(e), use the phrase “serious drug
offense,” but the statutory definitions of that phrase are different. The definition in
the former is defined, at 18 U.S.C. § 3559(c)(2)(H), by cross-referencing various
portions of the federal Controlled Substances Act, which define offenses based in
part on the amount of drugs involved. Section 924(e)(2)(A)(ii), by contrast,
defines the same phrase as “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of ten years or more is
prescribed by law.” Thus, when Sanchez held that underlying convictions required
proof of the amount of drugs involved, it did so because of the statutory definition
of “serious drug offense” applicable to § 3559(c). The statutory definition of that
phrase in § 924(e) has no such requirement.
The offenses here are second degree felonies under Fla. Stat. § 893.13(1)(a)
for sale of cocaine and possession of cocaine with intent to sell. Second degree
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felony drug convictions qualify as serious drug offenses for purposes of the ACCA
because they carry maximum penalties of more than ten years, regardless of the
quantities involved. Fla. Stat. § 775.082(3)(c). Thus, the district court properly
overruled Flores’s objection to the PSI on this basis.3
Flores also contended that two of the three underlying convictions used to
classify him as an armed career criminal were handed down on the same day, so
they were not “committed on different occasions” as required under 18 U.S.C. §
924(e)(1). PSI Addendum, upon which the district court relied, noted that there
were actually four separate offenses. This implies that even if the two convictions
from the same day only constituted a single occasion, there were still a total of
three, sufficient for classification as an armed career criminal under § 924(e).
Neither the PSI Addendum nor the district court addressed Flores’s
argument that United States v. Sneed precluded the use of police reports and other
sources that were not approved in Shepard v. United States, 544 U.S. 13, 125 S. Ct.
1254 (2005), in determining whether offenses were committed on different
occasions. 600 F.3d 1326, 1333 (11th Cir. 2010). First, we note that Flores’s
3
We note that technically, the district court erred by stating that the Eleventh Circuit had
previously rejected a similar argument. The cases cited in the PSI addendum are actually district
court opinions. See Jackson v. United States, 923 F. Supp. 2d 1334, 1338 (M.D. Fla. 2013)
(citing Brantley v. United States, Nos. 8:11-CV-1750-T-33EAJ, 8:09-CR-132-T-33EAJ, 2011
WL 6057510, at *8 (M.D. Fla. Dec. 6, 2011)). The government’s response to Flores’s pro se
motion erroneously cited the same cases as Eleventh Circuit decisions, perhaps explaining the
same error in the PSI. Regardless, the reasoning of the opinions is correct and flows obviously
from the text of the relevant statutes.
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factual proffer—an acceptable source under Shepard, see Sneed, 600 F.3d at 1333
(listing Shepard-approved sources)—lists the four separate convictions mentioned
in the PSI Addendum, so Sneed does not undermine the conclusion in the PSI.
Second, as the government notes, though two of Flores’s convictions occurred on
the same day, the crimes occurred separately, on September 23, 2006 and October
5, 2006. Flores does not dispute the government’s assertion that these details are
found in the Informations and Judgments for these cases, which are approved
sources under Shepard. 544 U.S. at 26, 125 S. Ct. at 1263.
Flores also challenged his criminal history category, but that objection is
irrelevant once his classification under § 924(e) is established. Section 924(e)
includes a statutory minimum sentence of fifteen years, which is precisely the
sentence Flores received. Consequently, regardless of whether a Jones violation
occurred, Flores’s objections to the district court’s legal conclusions regarding his
objections to the PSI either fail or are inconsequential. He was properly
categorized as an armed career criminal under the ACCA, a crime and
classification to which he pled guilty. Accordingly, he was reasonably sentenced
to the statutory minimum period for this crime.
II. Flores’s Tenth Amendment Challenge
Flores further claims that we should vacate his sentence because 18 U.S.C.
§ 922(g)(1) violates the Tenth Amendment. Regardless of whether this argument
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was preserved, we must determine whether the statute is unconstitutional. United
States v. Walker, 59 F.3d 1196, 1198 (11th Cir. 1995) (noting that the plain error
standard applies to claims that have not been preserved but that there is “no plainer
error than to allow a conviction to stand under a statute which Congress was
without power to enact”). We have held that § 922(g)(1) is not unconstitutional
facially. See United States v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010)
(“[T]his court has already held that 18 U.S.C. § 922(g)(1) is not constitutionally
invalid under the Commerce Clause . . . [provided] that the government prove[s]
some ‘minimal nexus’ to interstate commerce.” (citation omitted)).
Nor is the statute unconstitutional as applied in these exact circumstances.
Flores’s factual proffer establishes that the firearm and ammunition in this case
were manufactured outside the state of Florida, and that creates a sufficient nexus
to interstate commerce to overcome Flores’s Tenth Amendment challenge under
our precedent. Id. (noting that the government may establish the minimal nexus
“by demonstrating that the firearm . . . traveled in interstate commerce[,] [and]
[h]ere, the government established that the firearms . . . were manufactured outside
of Florida [meaning they] necessarily traveled in interstate commerce” (citation,
internal quotation marks, and alteration omitted)). 4
4
Flores essentially concedes this point but notes that the Supreme Court has granted
certiorari to determine whether the Tenth Amendment poses any limitation on Congress’s
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Having thoroughly reviewed Flores’s objections to his sentence and the
district court’s legal conclusions, we find them meritless. Flores pled guilty to
crimes which carry a fifteen year minimum sentence, and that is precisely the
sentence he received. Accordingly, we affirm.
AFFIRMED.
authority to regulate intrastate criminal activity. See United States v. Bond, 681 F.3d 149 (3d
Cir. 2012), cert. granted, __ U.S. __, 133 S. Ct. 978 (U.S. Jan. 18, 2013).
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