United States v. Larry Kilby Fillingim

Case: 16-12782 Date Filed: 05/11/2017 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-12782
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00057-RV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY KILBY FILLINGIM,

Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 11, 2017)

Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

Larry Fillingim, proceeding pro se, appeals the district court’s denial of his

motion to dismiss the superseding indictment charging him, inter alia, with
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possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He argues

that the district court should have dismissed the indictment because his prior

Georgia felony convictions for aggravated stalking, false imprisonment, and

aggravated assault were void for lack of jurisdiction. Because Mr. Fillingim may

not collaterally attack his underlying state felony convictions in his federal

criminal proceedings, we affirm the district court’s denial of the motion to dismiss.

I. FACTUAL BACKGROUND

Mr. Fillingim was previously convicted in Georgia for aggravated stalking,

aggravated assault, and false imprisonment. For each crime, Mr. Fillingim was

subject to a term of imprisonment exceeding one year. Several years after his

convictions, Mr. Fillingim attempted to purchase a pistol from a federally licensed

firearms dealer. Before the dealer could sell Mr. Fillingim the pistol, Mr. Fillingim

had to provide certain information, including whether he had a prior felony

conviction. Mr. Fillingim stated that he had no prior felony conviction. After a

background check revealed his prior convictions, Mr. Fillingim was unable to

purchase the pistol. Subsequently, federal agents met with Mr. Fillingim to discuss

his attempted purchase of the pistol. At this meeting, Mr. Fillingim admitted that

he had attempted to purchase the pistol and that he owned other firearms as well as

ammunition.

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Mr. Fillingim was charged in a superseding indictment with two counts of

being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.

§ 922(g)(1) and one count of knowingly making a false statement to a federally

licensed firearm dealer in connection with the acquisition of a firearm in violation

of 18 U.S.C. § 922(a)(6). Prior to trial, Mr. Fillingim filed a pro se motion to

dismiss the indictment on the basis that his convictions for the Georgia felonies

were void because the state court lacked jurisdiction. He argued that the state court

lacked jurisdiction because, among other things, the judges who presided over his

state criminal proceedings were corrupt; while awaiting trial, he was subject to

unconstitutional conditions of confinement and abuse; he was forced to take

medication that rendered him incompetent to stand trial; and he was denied

effective assistance of counsel. He also asserted that state court judges harassed

him after his convictions through various abuses of the legal process and that law

enforcement officers shot at him in retaliation for pursuing litigation. The

government opposed the motion, arguing that the indictment was legally sufficient

and that Mr. Fillingim could not raise a collateral attack on the validity of his prior

felony convictions in his felon-in-possession proceeding. The district court agreed

with the government and denied the motion to dismiss.

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After the denial of his motion to dismiss, Mr. Fillingim pled guilty to the

three counts in the superseding indictment but reserved his right to appeal the

denial of the motion. This is his appeal.

II. STANDARD OF REVIEW

We review the denial of a motion to dismiss the indictment for abuse of

discretion. United States v. York, 428 F.3d 1325, 1331 n.8 (11th Cir. 2005). The

question of what constitutes a conviction of a crime punishable by imprisonment

for a term exceeding on year under 18 U.S.C. § 922(g)(1) is a question of statutory

interpretation that we review de novo. See United States v. McIlwain, 772 F.3d

688, 693 (11th Cir. 2014).

III. LEGAL ANALYSIS

Federal law generally bars certain categories of persons, whom Congress

considered dangerous, from possessing firearms. See 18 U.S.C. § 922(g);

McIlwain, 772 F.3d at 693. Under § 922(g)(1), it is unlawful for a 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). Mr. Fillingim argues although he had

previous convictions for crimes punishable by a term of imprisonment exceeding

one year, the district court should have dismissed the indictment on the basis that

these convictions were void. Even assuming Mr. Fillingim could raise such a

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challenge in a motion to dismiss the indictment, the district court did not err

because at the time of Mr. Fillingim’s possession of firearms and attempted

purchase of the pistol, he had prior felony convictions.

The Supreme Court has held that in a federal prosecution for being a felon in

possession of a firearm a defendant may not collaterally attack his prior conviction

in order to negate the government’s evidence that he had a felony conviction. See

Lewis v. United States, 445 U.S. 55, 67 (1980).1 In Lewis, the Supreme Court

recognized that such collateral attacks were barred because Congress had intended

federal law to prevent all convicted felons from possessing firearms, even if the

underlying “felony conviction ultimately might turn out to be invalid for any

reason.” Id. at 62. The Court explained that “Congress clearly intended that the

defendant clear his [felon] status before obtaining a firearm.” Id. at 64. That is, a

convicted felon may possess a firearm only if his conviction had been vacated or

the firearm restriction removed, such as through “a qualifying pardon or a consent

from the Secretary of the Treasury.” Id. at 60-61. Here, Mr. Fillingim’s prior

convictions had not been vacated and his firearm restrictions had not been removed

at the time of his possession of the firearms and attempted purchase of the pistol.

Accordingly, he had a prior conviction for purposes of § 922 and could not

collaterally attack his state court convictions in his federal criminal proceedings.

1
In Lewis, the defendant was convicted of violating 18 U.S.C. § 1202(a)(1), a
predecessor to the current § 922(g)(1).
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Mr. Fillingim acknowledges that Lewis generally bars a collateral attack on a

prior conviction but argues that we should recognize an exception here because the

errors in his state court criminal proceedings were so severe that they deprived the

state court of jurisdiction. But we rejected a similar argument in United States v.

DuBose, 598 F.3d 726 (11th Cir. 2010). In DuBose, the defendant, who was

charged with possessing a firearm while subject to a protective order, moved for a

judgment of acquittal on the ground that the underlying protective order had

constitutional infirmities, which deprived the issuing court of jurisdiction and

rendered the order void.2 Id. at 732. We were unpersuaded because the defendant

was required to challenge successfully the court’s subject matter jurisdiction before

he could possess either firearms or ammunition. Id. at 733. Likewise, because Mr.

Fillingim had prior felony convictions at the time he possessed a firearm or

ammunition, a subsequent collateral attack on his state court convictions as void

for lack of subject matter jurisdiction would not affect his federal felon-in-

possession-of-a-firearm charge.

Mr. Fillingim also argues that we should allow him to raise a collateral

attack on his prior convictions because the Supreme Court recognized in District of

Columbia v. Heller, 554 U.S. 570 (2008), that he has a constitutional right under

2
In DuBose, the defendant was charged with possession of a firearm while subject to a
protective order in violation of § 922(g)(8). But we recognized that § 922(g)(1), prohibiting
felons from being in possession of a firearm, was an analogous statute. See DuBose, 598 F.3d at
733.
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the Second Amendment to possess a handgun in his home. Although the Supreme

Court held in Heller that a District of Columbia law banning the possession of

handguns was unconstitutional, the Supreme Court explained that its decision was

not intended “to cast doubt on longstanding prohibitions on the possession of

firearms by felons.” Id. at 626; see McIlwain, 772 F.3d at 698 (rejecting argument

that Heller permitted a defendant to raise a collateral attack to challenge his

indictment for violating § 922(g)). Accordingly, Heller does not entitle Mr.

Fillingim to raise a collateral attack on his prior felony convictions. 3

IV. CONCLUSION

For the reasons set forth above, the indictment at issue was sufficient on its

face; thus, we hold that the district court did not abuse its discretion in denying Mr.

Fillingim’s motion to dismiss the indictment. His conviction is

AFFIRMED.

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On appeal, Mr. Fillingim also argues that he is entitled to relief under 42 U.S.C. § 1983
for violations of his constitutional rights, including his exposure to malicious and sadistic
conditions while awaiting criminal trial in state court. Mr. Fillingim must raise any civil claims
under § 1983 in a separate civil suit. We express no view on the merits of any such claims.
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