United States v. Joseph Peter Clarke

Case: 13-15874 Date Filed: 03/17/2015 Page: 1 of 24

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-15874
________________________

D.C. Docket No. 1:13-cr-20334-CMA-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH PETER CLARKE,
BOBBY JENKINS,

Defendants-Appellants.

________________________

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

(March 17, 2015)

Before MARTIN and DUBINA, Circuit Judges, and RODGERS, * District Judge.

PER CURIAM:

*
Honorable Margaret C. Rodgers, Chief United States District Judge for the Northern
District of Florida, sitting by designation.
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Joseph Peter Clarke and Bobby Jenkins appeal their convictions of

conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count 1);

conspiracy to possess with intent to distribute five or more kilograms of cocaine,

21 U.S.C. §§ 841(a)(1), 846 (Count 2); possession of a firearm by a convicted

felon, 18 U.S.C. § 922(g)(1) (Counts 3 and 4, respectively); and using and carrying

a firearm during and in relation to a crime of violence and possession of a firearm

in furtherance of a crime of violence, specifically, the Hobbs Act robbery, id. §

924(c)(1)(A) (Count 5). The case concerns a reverse sting operation, in which the

Defendants joined a fake conspiracy to rob a house of drug dealers. Clarke and

Jenkins challenge a number of aspects of their trial, conviction, and sentence.

After careful consideration, and with the benefit of oral argument, we affirm. 1

I.

On May 10, 2013, a grand jury returned a five-count indictment against

Bobby Jenkins and Joseph Peter Clarke. The detective who engineered the reverse

sting which led to the indictment was Kenneth Veloz, who had experience with

these sorts of “proactive investigations” of “individuals that are interested in

committing [armed] robbery.” In this type of case, Detective Veloz typically

proposed “an extremely violent scenario” to give the targets the “chance . . . to

1
In a separate opinion, we address Jenkins’s argument that his prior guilty plea to
possession of cocaine in Florida, where adjudication was withheld, does not qualify as a
“conviction” for purposes of 18 U.S.C. § 922(g). We certified a question to the Florida Supreme
Court, and retain jurisdiction over this appeal pending resolution of that issue.
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walk away if they [were] not interested in committing [a] robbery.” Here,

Detective Veloz first became interested in Jenkins when a confidential informant

(CI) told him that Jenkins “may be interested in committing a robbery.”

After a series of phone calls in which Detective Veloz thought Jenkins

seemed to be interested in participating in the robbery, Detective Veloz set up three

in-person meetings in which he posed as a drug trafficker. In the first, Detective

Veloz represented that he routinely picked up and delivered kilogram quantities of

cocaine for a group of drug traffickers, and that they had failed to adequately pay

him for work he had done. He told Jenkins he needed someone to help him rob the

traffickers. He said that they were violent drug dealers who would kill Detective

Veloz and his family if they found out that he stole the cocaine. Jenkins responded

that he and his “people” could handle the job, saying they were “certified.” He

also asked questions about the job, like what the dealers were “capable of, what

area they [worked] in, . . . what people[] they know,” and whether they “hav[e]

guns in there.” Jenkins also said that he had “AR-15s that come from the army,”

and that he would wear a bulletproof vest.

Jenkins brought Clark—an acquaintance—to the second meeting, and he,

Clarke, Detective Veloz, and the CI continued to discuss the plan to rob the drug

traffickers. Detective Veloz emphasized that these were dangerous people who

“don’t play” and stated that, personally, when it came to guns, “I’m running the

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other way.” Still Jenkins persisted in asking questions, including the location of

the house, who the “head” of the traffickers was, and whether there would be cash

in the house along with the drugs. Clarke noted that if there were only two drug

dealers in the house when they robbed them, “it shouldn’t really be [an] issue as far

as getting in and getting out.” Both Jenkins and Clarke asked Detective Veloz if

he wanted the traffickers dead, and Veloz responded “you could do what you got to

do.” Clarke suggested that he would need to kill them so that no one would know

Detective Veloz was associated with them. And Clarke said he would need to

“hit” Detective Veloz to make it look like Detective Veloz was not involved. In a

follow-up phone call between the CI and Jenkins, Jenkins told the CI that he

wanted the robbery “to get bloody regardless” because then the traffickers “can’t

talk.”

At the third and final meeting, the same group discussed details of the

robbery. Clarke repeatedly insisted that they be told the location in advance so

they could plan their entry. Detective Veloz also told them there would be ten to

fifteen kilograms of cocaine, and he and Clarke discussed splitting the drugs

“fifty/fifty.” Clarke noted that when he “move[s] [his] trigger, [he is] on

precision,” and that Detective Veloz should “get out of the way” if shooting

begins. In a phone call the day before the robbery, Jenkins told the CI that

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everything was “good,” but expressed concern that Detective Veloz might be

involved with the police. The CI assured him that “everything [was] straight.”

On the day of the robbery, the government provided a car to the CI, who

picked up Jenkins and Clarke and drove them to the robbery location. When they

arrived, a team of ATF Detectives converged on the car. Jenkins had a .40 caliber

Sig Sauer handgun and was wearing gloves. Clarke dropped his loaded

semiautomatic assault rifle in the back seat.

Both Clarke and Jenkins went to trial, where two juries were impaneled.

Both were found guilty of all counts. Jenkins was sentenced to 240 months

imprisonment for Counts 1 and 2, a concurrent 120-month sentence for Count 3,

and a consecutive term of 60 months imprisonment for Count 5. Clarke was

sentenced to life imprisonment for Counts 1, 2, and 4, and a consecutive life term

for Count 5. Both timely appealed on a number of grounds, and we address each

issue in turn.

II.

Jenkins preliminarily argues that five different errors at trial resulted in

cumulative error, for which he should receive a new trial. The cumulative-error

doctrine provides that “an aggregation of non-reversible errors” can result in the

denial of the constitutional right to a fair trial warranting reversal. United States v.

Baker, 432 F.3d 1189, 1224 (11th Cir. 2005) (quotation omitted). We ask whether

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the combined effect of the errors had a “substantial influence on the outcome by

weighing the record as a whole, examining the facts, the trial context of the error,

and the prejudice created thereby as juxtaposed against the strength of the evidence

of defendant’s guilt.” United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.

1999) (internal quotation marks and citations omitted).

First, Jenkins argues that Detective Veloz’s testimony “deliver[ed] a jury

argument from the witness stand.” United States v. Cano, 289 F.3d 1354, 1363

(11th Cir. 2002). During trial, Detective Veloz testified repeatedly, over

objections, about the “significance” of various things Jenkins said during the

recorded phone and in-person meetings. See, e.g., Trial Tr. 24, Oct. 8, 2013, ECF

No. 137 (Q: Now, what is the significance to your investigation of Mr. Jenkins

making the statement, ‘Yeah, yeah, yeah, yeah, that’s the only reason I’m

[expletive] with it?” A: Because it—he has an interest . . . That he had an interest

because the outcome is . . . he’s going to gain something.”); id. at 45–46 (testifying

that the phrase “certified” meant to Detective Veloz that Jenkins was “representing

. . . that he is skilled to do this [crime]” and “has the intent to do this, the know-

how, the ability to . . . commit this robbery”); id. at 51 (testifying that when

Jenkins asked “who we are dealing with, basically, like what they are capable of,

what area they be in, what area they [expletive] with, [and] what people they

know,” Detective Veloz understood those statements to mean he “want[s] to do

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intelligence, gather intelligence so that way they can plan on how to do this

robbery”). Jenkins argues that this testimony allowed Detective Veloz to make

judgments on the stand about the significance of Jenkins’s statements that only the

jury should have been allowed to make.

We cannot agree. “[E]videntiary rulings will be disturbed on appeal only

where there appears a clear abuse of discretion.” United States v. Taylor, 17 F.3d

333, 340 (11th Cir. 1994). Beyond that, “[a] trial judge has broad discretion in

controlling the extent of direct and cross-examination.” United States v. James,

510 F.2d 546, 551 (5th Cir. 1975). 2 We understand the purpose of Detective

Veloz’s testimony explaining his impressions of Jenkins’s statements was to

counter Jenkins’s entrapment defense and explain to the jury why he proceeded

with the reverse-sting operation at each stage of the investigation. In this regard,

this Court has noted that “an experienced narcotics agent may testify about the

significance of certain conduct or methods of operation unique to the drug

distribution business.” United States v. Butler, 102 F.3d 1191, 1199 (11th Cir.

1997) (quotation omitted). We recognize the need for the government to explain

Jenkins’s testimony to a jury that may not be familiar with the language used

2
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
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throughout the phone calls and meetings. The district court did not abuse its

discretion by allowing this testimony at trial.

Relatedly, Jenkins argues that when Detective Veloz compared Jenkins’s

actions to the actions of others in reverse-sting operations based on Detective

Veloz’s experience, he was improperly acting as an expert witness. See, e.g., Trial

Tr. 41–42, Oct. 8, 2013, ECF No. 137 (noting that in most cases, when targets hear

that people could die, “[t]hey usually say it right there, this is too much for me, or

. . . they won’t call back, they won’t return, they won’t want to meet”); id. at 46

(“Mr. Jenkins is representing this to me, based on my experience, is that he wants

me to buy in that I should hire him to do this.”). Not so. In United States v.

Jayyousi, 657 F.3d 1085 (11th Cir. 2011), this Court held that a law enforcement

agent involved in a terrorism investigation could draw inferences about the

meaning of code words used during recorded conversations and relay those

inferences to the jury. Unlike a case where an agent merely testified “about the

meaning of a simple code that the jury could have deciphered easily based on

evidence admitted at trial,” in Jayyousi, the agent’s “familiarity with the

investigation allowed him to perceive the meaning of coded language that the jury

could not have readily discerned.” Id. at 1103. This Court allowed the agent’s

testimony even though the district court admitted that “it appears as if this

witness’s training and experience to opine on what certain things mean is the

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investigation of this case.” Id. at 1104 (quotation marks omitted). So too here.

Detective Veloz was permitted to testify about the particular words Jenkins used

based on his experience, and it was not an abuse of discretion for the district court

to allow him to do so.

Second, Jenkins argues that it was improper for the district court to allow the

prosecutor to ask a series of questions to Detective Veloz about whether certain

things the CI told him about Jenkins “w[ere] true.” The CI initially told Detective

Veloz that Jenkins “may be interested in committing a robbery.” According to

Jenkins, questioning Detective Veloz about whether this statement was true

violated the rule that “it is improper to ask a testifying [witness] whether another

witness is lying” since such questions “invade the province of the jury.” United

States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir. 2011). We recognize that such a

rule exists. But here, read in context, it is clear that the prosecutor was not asking

Detective Veloz whether the CI’s testimony was credible. Rather, the prosecutor’s

purpose was to have Detective Veloz confirm Jenkins’s interest in committing the

crime based on having listened to the recorded conversations between Jenkins and

the CI, not just the CI’s statements at the start of the investigation. This, again,

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was a justifiable attempt to counter Jenkins’s entrapment defense. We cannot say

that the district court abused its discretion in allowing this testimony. 3

Jenkins points to three additional errors. He argues that the district court

abused its discretion by allowing evidence of his prior conviction for cocaine

possession under Federal Rule of Evidence 404(b). He next argues that the district

court committed plain error under Rule 404(b) by allowing his NCIC criminal

report to be brought into evidence.4 Finally, he argues that the district court abused

its discretion when it allowed the prosecutor to admit expert-witness testimony

suggesting he malingered on a disability evaluation in order to gain Social Security

benefits. We do not address the merits of these three arguments because even if

Jenkins can show error, the cumulative error was harmless.5 Under the

3
In fact, because Jenkins did not object to that question at trial, his argument on appeal is
subject to plain-error review. We see no plain error that affected his substantial rights here. See
United States v. Olano, 507 U.S. 725, 731–32, 113 S. Ct. 1770, 1776 (1993).
4
The government argues that the invited-error doctrine bars this argument because
Jenkins had “no problem” and “no objection” to the government’s introduction of the report. But
although Jenkins did not object, he also did not solicit the evidence. The invited-error doctrine
applies only when the party challenging the introduction of the evidence affirmatively asked for
it, not when the party merely fails to object to its introduction. When a party fails to object, the
appellate court reviews the challenged evidence for plain error. See United States v. Jones, 743
F.3d 826, 828 n.1 (11th Cir. 2014) (noting that the invited-error doctrine “does not apply” where
the error is “not attributable to the action of the defense” because the defendant “failed to object
to the error, but he did not ask for it” (quotation omitted)).
5
We note, however, that despite the fact that any error was harmless, Jenkins’s argument
that the district court wrongfully allowed evidence of his prior conviction for cocaine possession
is compelling. Under Rule 403(b), “the probative value of . . . evidence must not be substantially
outweighed by its undue prejudice.” United States v. Matthews, 431 F.3d 1296, 1310–11 (11th
Cir. 2005) (per curiam) (quotation marks omitted). Admittedly, we have said that “a not guilty
plea in a drug conspiracy case . . . makes intent a material issue and opens the door to admission
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cumulative-error doctrine, reversal is warranted only if the combined effect of the

errors had a “substantial influence on the outcome.” Hands, 184 F.3d at 1329

(internal quotation marks and citations omitted). Looking to the record as a whole

and examining all the facts, the recorded phone calls and in-person meetings are

difficult for Jenkins to overcome on harmless-error review. Throughout those

recordings, Jenkins discussed details of the proposed crime, never backed out even

when they talked about killing the traffickers, and suggested that he wanted the

robbery to be “bloody.” Beyond that, the fact that he arrived at the location of the

proposed crime with a firearm in hand is powerful evidence that a jury would have

found persuasive beyond a reasonable doubt. In short, these purported trial errors,

even taken together, are harmless. We cannot reverse Jenkins’s convictions on this

basis.

III.

Clarke argues, in the same way, that the district court abused its discretion

by admitting evidence of his 2006 burglary conviction. He says that the conviction

of prior drug-related offenses as highly probative, and not overly prejudicial, evidence of a
defendant’s intent.” United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997). For
instance, we have held that “a three-year-old prior conviction for possession of cocaine for
personal use was relevant and admissible for purposes of demonstrating defendant’s intent in the
charged conspiracy for possession with intent to distribute.” Matthews, 431 F.3d at 1311 (citing
United States v. Butler, 102 F.3d 1191, 1195–96 (11th Cir. 1997)). However, this is not a drug-
conspiracy case. This is a conspiracy to commit a violent, armed robbery of a house of drug
dealers. The fact that Jenkins was arrested for possession with intent to distribute, which
resulted in his guilty plea for simple possession of cocaine, seems unlikely to be probative of
whether he would have committed this robbery crime. Still, we must affirm because any error
was harmless.
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was not probative of his intent to commit the robbery, the conviction occurred

seven years ago, and the government did not need the evidence because it had

audio and video recordings of the offense. Clarke makes a colorable argument that

this 2006 burglary of an electronics store is so different and so remote in time from

the attempted armed robbery of a house of drug traffickers that the district court

may have erred in admitting it. However, “[w]e review preserved evidentiary

objections for harmless error.” Baker, 432 F.3d at 1202. As with Jenkins, there is

overwhelming evidence of Clarke’s guilt. He was recorded during numerous

phone calls and in-person meetings planning the robbery; he described his plans to

shoot and kill the occupants of the house if they resisted; and he arrived at the

scene with gloves and a firearm on the appointed date. We cannot reverse because

this prior conviction was admitted.

IV.

Next, Jenkins argues that the government engaged in sentencing-factor

manipulation by selecting a quantity of cocaine—ten to fifteen kilograms—

sufficient to trigger a ten-year mandatory-minimum sentence. This Court has

“considered sentencing manipulation as a viable defense.” United States v.

Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). “[S]entencing factor

manipulation occurs when the government’s manipulation of a sting operation,

even if insufficient to support a due process claim, requires that the manipulation

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be filtered out of the sentencing calculus.” Id. The bar is “high”: we have

generally noted that “[g]overnment-created reverse sting operations are recognized

and useful methods of law enforcement investigation.” Id. at 1271. Thus, to find

sentencing factor manipulation, we must find that the government’s conduct was,

as we have put it, “so objectionable” or “sufficiently reprehensible” or

“extraordinary misconduct.” Id. at 1270–71.

We cannot say that the government’s conduct in this case met that high bar.

In United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998), the

[d]efendants argue[d] that the conduct of the government in creating a
fictitious crime for them to commit—robbery of a non-existent house
allegedly stocked with large quantities of cocaine and marijuana,
which did not in fact exist—was so outrageous as to warrant either
dismissal of the superseding indictment, or reversal of their
convictions, or a downward departure of their sentences.

Id. at 1413. Regarding the sentencing-factor-manipulation claim in Sanchez, this

Court held that “[t]he fact that the government’s fictitious reverse sting operation

involved a large quantity of drugs does not amount to the type of manipulative

governmental conduct warranting a downward departure in sentencing.” Id. at

1414. So too here. Detective Veloz testified that the ten- to fifteen-kilogram

amount was simply “realistic[].” Trial Tr. 50–51, Oct. 8, 2013, ECF No. 137 (“Q:

Why not pose 35 kilos? A: Well, realistically, nowadays home invasions that I

have investigated and that—that my unit has been involved in, that quantity

amount is not as prevalent as it was back, you know, in the ‘80s.”).

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Jenkins argues that Sanchez is distinguishable because in that case, “[t]he

availability of defendants, their weapons, and vehicles was not the result of any

governmental activity.” Id. at 1414. By contrast, the government here provided

Jenkins and Clarke with a car in order to commit the crime. However, our

precedent makes clear that this fact is not dispositive. See Ciszkowski, 492 F.3d at

1271 (“The fact that law enforcement may provide drugs or guns essential to a

willing and predisposed offender does not necessarily constitute misconduct.”).

We have certainly taken note that the government went to great lengths to

construct a violent plan here. This is especially striking in light of the fact that

before this incident, Jenkins had never engaged in anything like the violent armed

robbery that he attempted here. However, all Jenkins is challenging on appeal is

the government’s decision to quantify the amount of cocaine at ten to fifteen

kilograms instead of, say, two kilograms. We cannot agree that this amount is a

particularly “objectionable” or “extraordinary” quantity of cocaine. The district

court did not err.

V.

Next, both Jenkins and Clarke argue that the jury instructions constructively

amended the indictment on Count 5, the count for using and carrying a firearm

during and in relation to a crime of violence and possession of a firearm in

furtherance of a crime of violence. “[A] court cannot permit a defendant to be

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tried on charges that are not made in the indictment against him.” Stirone v.

United States, 361 U.S. 212, 217, 80 S. Ct. 270, 273 (1960). Under this rule, a

district court may not constructively amend the indictment. See id. at 215–16, 80

S. Ct. at 272. A constructive amendment “occurs when the essential elements of

the offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.” United States v. Keller,

916 F.2d 628, 634 (11th Cir. 1990).

Here, although Jenkins and Clarke were convicted of knowingly using and

carrying a firearm during and in relation to a crime of violence, and knowingly

possessing that firearm in furtherance of a crime of violence, the district court’s

definition of “possession” in the jury instructions repeatedly referred to a “drug

trafficking” crime. 6 At first, the court correctly said that “it is a separate federal

crime for anyone to use, carry, possess[] or brandish a firearm in furtherance of a

crime of violence.” However, the district court then went on to say that “[t]o

‘possess’ a firearm is to have a firearm on one’s person or to transport or control a

firearm in a way that makes it available for immediate use while committing the

drug-trafficking crime” (emphasis added). The Court continued that “[s]ome

factors to consider are the type of drug activity that is being conducted,

accessibility of the firearm, the type of the weapon, whether the weapon is stolen,

6
A drug-trafficking offense is not a “crime of violence” for purposes of Section 924(c).
See United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986).
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the status of the possession (legitimate or illegal), whether the gun is loaded, [and]

proximity to the drugs” (emphasis added). In short, the jury instructions referred to

a “drug-trafficking crime” when they should have referred to a “crime of

violence.” The government admits in its brief that “[an] error occurred.”

However, neither Clarke nor Jenkins objected to the jury instructions at trial.

[W]e may only reverse a defendant’s conviction based on an
unobjected-to constructive amendment if the constructive amendment
satisfies the Olano7 plain-error standard. That is, the amendment must
(1) be an error (2) that is plain (3) that affects the defendant’s
substantial rights and (4) that seriously affects the fairness, integrity,
or public reputation of judicial proceedings.

United States v. Madden, 733 F.3d 1314, 1321 (11th Cir. 2013). In Madden, we

held that a district court’s constructive amendment of the indictment met the plain-

error standard for reversal. There, while the indictment stated that the defendant

“did knowingly use and carry a firearm during and in relation to a crime of

violence and did knowingly possess a firearm in furtherance of a drug trafficking

crime,” the jury instructions stated that “[t]he superseding indictment alleges that

the defendant knowingly carried a firearm during and in relation to a drug

trafficking offense or possessed a firearm in furtherance of a drug trafficking

offense.” Id. at 1318 (emphasis added). In other words, the instructions allowed

for a conviction of carrying a firearm during and in relation to a drug trafficking

offense, but the indictment charged the defendant with possessing a firearm only in

7
Olano, 507 U.S. 725, 113 S. Ct. 1770.
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furtherance of a drug trafficking offense. We noted in that case that “adding

‘during and in relation to’ broadened the possible bases for conviction beyond

what was specified in the superseding indictment,” because “‘in furtherance of’ is

narrower than ‘during and in relation to.’” Id.

We held that this constructive amendment met Olano’s plain-error standard.

First, there was error because “constructively amending an indictment is a

departure from the legal rule that a defendant can only be convicted for a crime

charged in the indictment.” Id. at 1322 (quotation omitted). Second, the error was

plain because “[i]t [was] clear that ‘in furtherance of’ and ‘during and in relation

to’ are alternative methods of conviction[,] [a]nd it [was] clear under current law

that a court errs when it allows for an alternative method of conviction that is not

included in the indictment.” Id. (citation omitted). Third, the error affected

Madden’s substantial rights because “Madden may well have been convicted on a

charge not in the indictment. In the end, . . . we [could not] say with certainty that

with the constructive amendment, Madden was convicted solely on the charge

made in the indictment.” Id. at 1323 (quotation omitted). Fourth, “we f[ou]nd it

self-evident . . . that the error seriously affect[ed] the fairness, integrity and public

reputation of judicial proceedings.” Id.

Although it is a close case, the jury-instruction error here is sufficiently

different from the one in Madden that we cannot say that it affected Jenkins’s and

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Clarke’s substantial rights. For one thing, the instructions clearly and correctly set

forth the elements of the offense before erroneously referring to “drug trafficking”

when defining the term “possess.” Beyond that, because the government

repeatedly argued during its closing that the crime of violence at issue was

“narcotics-related robberies” and that “robbery is violent,” we find it certain that

the jury would have understood that firearms were possessed with respect to the

robbery. Finally, unlike in Madden, where the amendment encompassed a broader

range of conduct than what was charged in the indictment, no new element was

added here. And while there actually was a drug-trafficking crime charged in

Madden, and the jury could therefore have reasonably been confused, there was no

drug-trafficking crime at issue here. The only offense during which Jenkins and

Clarke could have possibly used a firearm was the Hobbs Act robbery. The jury

could not have convicted Jenkins and Clarke for using and carrying a firearm

during and in relation to a drug-trafficking crime when no drug-trafficking crime

was ever mentioned before the misstatements in the jury instructions. Thus, we

cannot say that the error affected their substantial rights, and we find no plain

error.

VI.

Next, Jenkins argues that his Sixth Amendment rights were violated when

the prosecutor refused to withdraw a Section 851 notice of enhancement after he

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declined to enter a guilty plea. At a status conference before trial, the prosecutor

said that “[t]he government has told [Jenkins’s lawyer] that it would be willing to

withdraw the information based on what he has put forward. . . . [A]fter that plea

expiration deadline, the government would not do that.” “[W]hat he has put

forward” is, we assume, the Social Security documents that suggest that Jenkins is

“mildly, mentally retarded,” as discussed earlier in that status conference. Jenkins

argues that because the prosecutor suggested he was willing to withdraw the

enhancement based on what Jenkins had put forward, the government conceded

that the twenty-year mandatory-minimum sentence was not warranted in light of

his disability, but applied it anyway because he refused to plead guilty.

Jenkins’s argument is precluded by precedent of the Supreme Court and this

Court. In Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663 (1978), the

Supreme Court addressed “whether the Due Process Clause of the Fourteenth

Amendment is violated when a state prosecutor carries out a threat made during

plea negotiations to reindict the accused on more serious charges if he does not

plead guilty to the offense with which he was originally charged.” Id. at 358, 98 S.

Ct. at 665. The Court held that “so long as the prosecutor has probable cause to

believe that the accused committed an offense defined by statute, the decision

whether or not to prosecute, and what charge to file or bring before a grand jury,

generally rests entirely in his discretion.” Id. at 364, 98 S. Ct. at 668. In United

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States v. Darby, 744 F.2d 1508 (11th Cir. 1984), we applied the Bordenkircher rule

to a case in which “the government expressed its intent to seek sentence

enhancement under section 849 and offered to forego prosecution as a dangerous

special drug offender if [the Defendant] would plead guilty as charged.” Id. at

1539. The Defendant refused the offer, was sentenced under Section 849, and

challenged the sentence enhancement as a “vindictive effort to penalize his

exercising his right to trial by jury.” Id. This Court said that “case [was]

indistinguishable from Bordenkircher. [The Defendant] was fully informed of the

terms of the plea offer and simply declined to accept. Accordingly, we f[ou]nd no

support for his claim of prosecutorial vindictiveness.” Id. (footnote omitted).

We are bound by our ruling in Darby. Although it is certainly true that the

prosecutor considered withdrawing the section 851 notice during plea negotiations,

he was fully within his rights under the law to apply the enhancement. That he

used the application of the enhancement to try to convince Jenkins to plead guilty

is no different from the facts in Darby. Jenkins has therefore failed to make out a

claim of prosecutorial vindictiveness in violation of his Sixth-Amendment rights.

VII.

Jenkins next argues that his prior Florida arrest, for which adjudication was

withheld and he received a suspended sentence, should not qualify as a prior

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conviction under 21 U.S.C. §§ 841 and 851. 8 He argues that we should follow the

definition of “conviction” used in the Immigration and Nationality Act (INA). He

notes that immigration law and criminal law both fall within the federal scheme,

and since “[t]he general analytical framework and principles . . . are analogous,”

we “routinely import[] holdings from one context to the other.” Donawa v. U.S.

Att’y Gen., 735 F.3d 1275, 1280 n.3 (11th Cir. 2013). The INA definition says

that a “conviction” includes a situation where an “adjudication of guilt has been

withheld” if “a judge or jury has found the alien guilty or the alien has entered a

plea of guilty or nolo contendere or has admitted facts to warrant a finding of guilt

and the judge has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A) (emphasis added). Here,

the adjudication was withheld and no form of punishment was imposed—the

sentence was suspended.

Because Jenkins did not raise this argument in the district court, it is subject

to plain-error review. An error is plain only if precedent of this Court or the

Supreme Court or the unequivocal language of a statute establishes that the

decision was erroneous. United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir.

8
This question is different from the one Jenkins raises with regard to his section 922(g)
charge. For section 922(g), we look to whether Florida state law treats the prior arrest as a
“conviction” for Florida’s felon-in-possession law. Here, we look to federal law. See United
States v. Mejias, 47 F.3d 401, 403–04 (11th Cir. 1995) (per curiam) (“[F]ederal law, rather than
state law, governs the interpretation of section 841(b)(1)(B).”).
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2012). There is no precedent of this Court or the Supreme Court that clearly holds

that the district court’s acceptance of the Section 851 enhancement was erroneous.

In fact, there is precedent suggesting the opposite. In Mejias, we held that

“Mejias’ prior plea of nolo contendere with adjudication withheld in Florida state

court is a ‘conviction’ that supports an enhanced sentence under section

841(b)(1)(B).” 47 F.3d at 404. And in United States v. Fernandez, 234 F.3d 1345

(11th Cir. 2000) (per curiam), we reaffirmed that “a prior state court nolo plea in

which adjudication was withheld can be used as a conviction to make the

defendant eligible for career-offender status under the Sentencing Guidelines.” Id.

at 1347.

We recognize that Jenkins is not merely arguing that he had his adjudication

withheld; he is also arguing that he received a suspended sentence. The defendant

in Mejias was sentenced to probation, and so it could be argued that he received

“some form of punishment, penalty, or restraint on the alien’s liberty” under the

INA. 8 U.S.C. § 1101(a)(48)(A)(ii); see also Appellant’s Initial Br., Mejias, No.

91-4020, 1994 WL 16056228, at *8 (noting that “adjudication [was] withheld

pending successful completion of probation, and probation [was] successfully

completed”); Fernandez, 58 F.3d at 600 (holding “that a state offense in which the

defendant pleads nolo contendere and adjudication is withheld pending completion

of probation constitutes a ‘prior conviction’ for purposes of the enhancement

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provision of 21 U.S.C. § 841” (emphasis added)). However, this distinction

between the present case and Mejias is not enough to overcome plain-error review.

Because there is no controlling precedent on point, we cannot say that the district

court plainly erred in holding that Jenkins’s state felony was a conviction even if

adjudication was withheld and he was not punished or penalized in any way.

VIII.

Jenkins next argues that his conviction under the Hobbs Act and Section

924(c) are unconstitutional after the Supreme Court’s recent decision upholding

the Affordable Care Act in National Federation of Independent Business v.

Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012) (NFIB). Although constitutional

issues are generally reviewed de novo, we review them only for plain error when a

defendant fails to raise them before the district court. United States v. Underwood,

446 F.3d 1340, 1344 (11th Cir. 2006). Jenkins admits that in United States v.

Taylor, 480 F.3d 1025 (11th Cir. 2007), we held that “[t]he interstate nexus” can

be shown in a Hobbs Act conspiracy even when the “intended victims and

narcotics [are] fictional.” Id. at 1027. But he argues that decision “has since been

called into question” by NFIB. There, the Court held that the Affordable Care Act

could not be sustained under the commerce power because “[t]he power to regulate

commerce presupposes the existence of commercial activity to be regulated.”

NFIB, 132 S. Ct. at 2586 (emphasis omitted). However, although NFIB did

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address the Commerce Clause generally, the Supreme Court gave no indication

that it was overruling the numerous circuit-court opinions upholding the Hobbs Act

on Commerce-Clause grounds. This Court is bound to follow its prior precedent

unless it is overruled by the Court sitting en banc or by the Supreme Court. United

States v. Martinez, 606 F.3d 1303, 1305 (11th Cir. 2010). We cannot say the

district court committed plain error by failing to find that the Supreme Court has

implicitly overruled our prior precedent.

IX.

Finally, Jenkins argues that the district court lacked the authority to enhance

his sentence based on his prior conviction because that prior conviction was neither

alleged in the indictment nor proven to the jury. This argument is foreclosed by

binding precedent of the Supreme Court. See Almendarez-Torres v. United States,

523 U.S. 224, 235, 118 S. Ct. 1219, 1226 (1998).

X.

For all these reasons, we affirm on each of the issues discussed here. We

retain jurisdiction over this appeal pending resolution of the question we have

certified to the Florida Supreme Court. See supra n.2.

AFFIRMED.

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