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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13435
Non-Argument Calendar
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D.C. Docket No. 8:18-cr-00077-SDM-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMAAR DANGLO HAYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 12, 2019)
Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jamaar Hayes appeals his conviction and sentence for being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(e). On appeal, Hayes challenges: (1) the district court’s determination that the
government did not have to prove Hayes knew he was a convicted felon under
§ 924(e); (2) the district court’s reliance on its own findings that Hayes’s three
predicate Armed Career Criminals Act (“ACCA”) offenses occurred on different
occasions; (3) the Fifth and Sixth Amendment violations resulting from the district
court’s determination that Hayes’s three predicate ACCA offenses occurred on
different occasions; and (4) the district court’s determination that his prior
convictions under Fla. Stat. §893.13 were serious drug offenses under § 924(e).
We will consider each challenge in turn.
I.
When a defendant fails to object to a Rule 11 violation occurring during his
plea colloquy in the district court, we will review only for plain error. United
States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). Where a defendant
raises a challenge to the sufficiency of the indictment for the first time on appeal,
we will conclude that the indictment was sufficient “unless it is so defective that it
does not, by any reasonable construction, charge an offense for which the
defendant is convicted.” United States v. Lang, 732 F.3d 1246, 1247 (11th Cir.
2013) (quotations omitted).
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Section 924(a)(2) of Title 18 of the United States Code provides that a
person who “knowingly violates” § 922(g) shall be imprisoned for a maximum of
ten years. 18 U.S.C. § 924(a)(2). Section 922(g)(1) of Title 18 of the United
States Code criminalizes the possession of a firearm or ammunition in or affecting
interstate commerce by a convicted felon. 18 U.S.C. § 922(g)(1). The offense
includes three distinct elements: (1) possession of a firearm (“possession
element”); (2) by a convicted felon (“status element”); and (3) the possession was
in or affecting interstate or foreign commerce (“commerce element”). United
States v. Rehaif, 888 F.3d 1138, 1143 (11th Cir. 2018), cert. granted, 139 S.Ct. 914
(Jan. 11, 2019) (No. 17-9560).
In Rehaif, we analyzed § 924(a)(2) and held that “knowingly” does not apply
to the status element of § 922(g), which in Rehaif was the defendant’s status as an
unlawful alien. Id. at 1144-45. Prior to Rehaif, we specifically analyzed
§ 922(g)(1) and held that the government was not required to prove that the
defendant knew he was a convicted felon when he unlawfully possessed the
firearm at issue. United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997).
Under the prior panel precedent rule, a prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of
abrogation by the Supreme Court or by us sitting en banc. United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). There is no exception to the prior panel
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precedent rule for overlooked or misinterpreted precedent. United States v. Fritts,
841 F.3d 937, 942 (11th Cir. 2016). Likewise, a grant of certiorari does not
change the law and is not a basis for relief, because we are required to apply our
binding precedent until the Supreme Court issues a decision that changes the law.
Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015).
A review of our precedent reveals that Hayes’s challenge is foreclosed by
our decisions in Rehaif and Jackson. See Rehaif, 888 F.3d at 1144-45; Jackson,
120 F.3d at 1229. As we are bound by our precedent, we affirm.
II.
Generally, we review de novo whether predicate offenses meet the different
occasions requirement of the ACCA. United States v. Longoria, 874 F.3d 1278,
1281 (11th Cir. 2017). However, we review claims raised for the first time on
appeal for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005). To satisfy the plain error standard, an appellant must show: (1) an error
occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it
seriously affected the fairness of the judicial proceedings. Id. “An error is not
plain unless it is contrary to explicit statutory provisions or to on-point precedent in
this Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357
(11th Cir. 2009) (per curiam).
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If a defendant violates § 922(g) and has three previous felony convictions
that are violent felonies or serious drug offenses that were “committed on
occasions different from one another,” that defendant is an armed career criminal
under the ACCA. 18 U.S.C. § 924(e)(1). We have previously held that a district
court may determine for itself whether prior convictions exist and whether they
were committed on different occasions, so long as it limits its inquiry to the
statutory definition of the prior offense, the indictment, the plea agreement, the
plea colloquy, and “any explicit factual finding by the trial judge to which the
defendant assented.” Longoria, 874 F.3d at 1281. Similarly, we have held that a
district court may consider Shepard1 documents in determining whether a
defendant committed ACCA predicate offenses on different occasions without
proof beyond a reasonable doubt. United States v. Overstreet, 713 F.3d 627, 635
(11th Cir. 2013).
In Descamps, the Supreme Court held that a sentencing court may look only
to the statutory definitions of the elements of a defendant’s prior offenses of
conviction, and not to the particular facts underlying those convictions, in
determining whether a prior offense is a violent felony under § 924(e). Descamps
v. United States, 570 U.S. 254, 262-64 (2013).
1
Shepard v. United States, 544 U.S. 13 (2005).
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In Sneed, we held that sentencing courts are limited to the examination of
Shepard documents in determining whether prior offenses of conviction were
committed on different occasions under § 924(e)(1). United States v. Sneed, 600
F.3d 1326, 1332 (11th Cir. 2010). Thereafter, we held that a district court may
determine whether a defendant’s prior convictions were committed on separate
occasions under the ACCA based on undisputed statements in the PSI. United
States v. McCloud, 818 F.3d 591, 595-96 (11th Cir. 2016). However, any portions
to which the defendant specifically objected must be proven by the government by
a preponderance of the evidence. Id.
Here, the district court did not plainly err by determining for itself whether
Hayes’s three predicate offenses occurred on different occasions, because the court
was permitted to make this finding using Shepard documents. See Longoria, 874
F.3d at 1281. Moreover, the Shepard documents in the record, including the
judgments of Hayes’s prior convictions, support the district court’s conclusion that
the predicate offenses were committed on different occasions. Accordingly, we
affirm.
III.
Ordinarily, we review constitutional challenges to a sentence de novo.
United States v. Deshazior, 882 F.3d 1352, 1354-55 (11th Cir. 2018), cert. denied,
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(Feb. 25, 2019) (No. 17-8766). However, as previously stated, we review claims
raised for the first time on appeal for plain error. Rodriguez, 398 F.3d at 1298.
Generally, the Fifth Amendment protects the right to be indicted by a grand
jury, and the Sixth Amendment protects the right to trial by jury. U.S. Const.
Amend. V; U.S. Const. Amend. VI. Accordingly, in Alleyne v. United States, the
Supreme Court held that “[a]ny fact that, by law, increases the penalty for a crime
is an “element” that must be submitted to the jury and found beyond a reasonable
doubt. Alleyne v. United States, 570 U.S. 99, 103 (2013). Notably, the Supreme
Court reserved from this rule the fact of a prior conviction. Id. at 111 n.8; see also
Almendarez-Torres v. United States, 523 U.S. 224, 243-247 (1998). Additionally,
in Sneed, we recognized the Sixth Amendment concerns of Shepard. Sneed, 600
F.3d at 1331-32.
In Overstreet, we also held that the government is not required to prove the
existence of the defendant’s prior convictions beyond a reasonable doubt in order
to sentence him under the ACCA, regardless of whether the defendant admits to
the convictions during his plea colloquy. Overstreet, 713 F.3d at 635. Further, in
Longoria, we rejected the defendant’s contention that his ACCA sentence violated
his Fifth and Sixth Amendment rights because the district court determined that his
convictions occurred on different occasions, based on our prior precedent allowing
this practice and acknowledging that the Supreme Court has held that a penalty
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provision authorizing a court to increase a sentence based on prior convictions
need not be alleged in the indictment. Longoria, 874 F.3d at 1283.
A review of our precedent indicates that Hayes’s challenge is foreclosed by
our precedents in Longoria and Overstreet. Longoria, 874 F.3d at 1283;
Overstreet, 713 F.3d at 635. The district court was permitted to determine for
itself whether Hayes’s convictions were committed on different occasions using
Shepard documents, and doing so did not violate Hayes’s Fifth or Sixth
Amendment rights. Longoria, 874 F.3d at 1281, 1283. Accordingly, the district
court did not plainly err and we affirm.
IV.
We review de novo whether a defendant’s prior convictions qualify as
serious drug offenses under the ACCA. Longoria, 874 F.3d at 1281. In Smith, we
reviewed the defendants’ convictions under Fla. Stat. § 893.13 and determined that
the convictions qualified as serious drug offenses because they met the statutory
requirements of § 924(e)(2)(A)(ii), which requires: (1) the conviction be for a state
law offense; (2) punishable by at least ten years’ imprisonment; and (3) involving
manufacturing, distributing, or possessing with intent to manufacture or distribute,
a controlled substance. United States v. Smith, 775 F.3d 1262, 1267 (11th Cir.
2014) (citing 18 U.S.C. § 924(e)(2)(A)(ii)). This Court explained that no element
of mens rea with regard to the illicit nature of the controlled substance was
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contemplated by the definition, and that we look to the plain language of the
definitions to determine their elements when the language is, as in
§ 924(e)(2)(A)(ii), unambiguous. Smith, 775 F.3d at 1267-68.
Again, a review of our precedent reveals that Hayes’s challenge his
foreclosed by our decision in Smith, in which we analyzed the same Florida statute
that Hayes was convicted under. Smith, 775 F.3d at 1267. Because we are bound
by our precedent, we affirm.
AFFIRMED.
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