[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ NOVEMBER 1, 2006
THOMAS K. KAHN
No. 06-11876 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-20392-CR-JAG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINIQUE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 1, 2006)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Dominique Lewis appeals his convictions and sentences imposed after he
pled guilty to conspiracy to interfere with commerce by robbery, in violation of 18
U.S.C. § 1951(a) (Count I), and interference with commerce by robbery, in
violation of § 1951(a) (Count II), and after a jury found him guilty of brandishing a
firearm in furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (Count IV). Lewis asserts: (1) his conviction under
§ 924(c) violated the Commerce Clause; (2) his trial on the § 924(c) charge
violated the Double Jeopardy Clause; and (3) the district court erred in denying
him a U.S.S.G. § 3E1.1 acceptance of responsibility reduction. After review, we
affirm Lewis’s convictions and sentences.
I. DISCUSSION
A. Commerce Clause
Lewis first contends § 924(c) is unconstitutional because Congress did not
explicitly link the offense conduct with interstate commerce, and, therefore, lacked
the power to enact it under the Commerce Clause. Specifically, he asserts linking
the possession of a firearm to a generic “crime of violence” does not establish the
crime had a “substantial effect on interstate commerce.” Although Lewis
acknowledges we have rejected facial challenges to § 924(c), he states “the issue is
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raised here for consideration by this Court under the factual circumstances of this
case.”
We review constitutional issues de novo. United States v. Wright, 392 F.3d
1269, 1280 (11th Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005). 18 U.S.C.
§ 924(c)(1)(A) prohibits, inter alia, the possession or use of a firearm “during and
in relation to any crime of violence . . . for which the person may be prosecuted in
a court of the United States.” 18 U.S.C. § 1951(a) prohibits, inter alia, robbery
which “obstructs, delays, or affects commerce or the movement of any article or
commodity in commerce.” We have rejected facial challenges to § 924(c). See
United States v. Ferreira, 275 F.3d 1020, 1028 (11th Cir. 2001) (rejecting
defendant’s argument that “Congress lacked the power under the Commerce
Clause to enact [§ 924(c)]”); United States v. DePace, 120 F.3d 233, 235 n.2 (11th
Cir. 1997) (rejecting defendant’s argument that § 924(c) “is an unconstitutional
effort to regulate intrastate, non-economic activity”).
To the extent Lewis argues Congress lacked the power to enact the statute,
we reject this argument because we have rejected facial challenges to § 924(c). See
id. To the extent Lewis is challenging the statute’s constitutionality as applied to
him, Lewis pled guilty to violations § 1951(a). Additionally, Lewis agreed the
store he robbed was a store engaged in interstate commerce and a number of the
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firearms he stole had moved in interstate commerce. As a result, the predicate
crime of violence in this case admittedly was one that involved interstate
commerce. Accordingly, under the facts of this case, § 924(c) was constitutionally
applied.
B. Double Jeopardy
Lewis next contends his trial and conviction on Count IV violated the
Double Jeopardy Clause because he had already pled guilty to the lesser-included
robbery offense. Specifically, he asserts that, because the Government was
required to prove a violation of § 1951(a) in order to obtain a conviction under
§ 924(c), once he pled guilty to violating § 1951(a), the Double Jeopardy Clause
prohibited the prosecution of the § 924(c) charge.
We recently held that, when a double jeopardy claim is not asserted at trial,
the issue is waived. United States v. Williams, 445 F.3d 1302, 1306 n.4 (11th Cir.
2006). As a result, we refused to hear the merits of the claim. Id. Because Lewis
failed to assert his double jeopardy claim during trial, he has waived this issue.
C. Acceptance of Responsibility
Lewis next contends that, because he admitted during the plea colloquy all
of the essential factual elements constituting a § 1951(a) violation, the district court
erred in not granting him an acceptance of responsibility reduction pursuant to
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§ 3E1.1. Lewis notes the Government’s factual proffer at the plea hearing did not
mention the firearm because it was unnecessary to sustain the § 1951(a)
convictions and was not relevant in calculating the applicable Guidelines range.
Lewis asserts that, in § 924(c) cases, the Guidelines prohibit the consideration of
the use and possession of a firearm in determining the applicable Guidelines range
for the underlying crime of violence.
“In reviewing a trial court’s refusal to grant an adjustment [under § 3E1.1],
[we] review[] interpretations of the sentencing guidelines de novo and factual
determinations for clear error.” United States v. Coe, 79 F.3d 126, 127 (11th Cir.
1996) (citations omitted). In Coe, we rejected a claim nearly identical to the
instant claim. See id. at 127-28. We explained:
Section 3E1.1 requires a downward adjustment “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). To determine whether a defendant qualifies, a
sentencing court should consider whether he “truthfully admitt[ed] or
[did] not falsely deny [] any additional relevant conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct).”
U.S.S.G. § 3E1.1, comment. (n. 1). Relevant conduct under § 1B1.3
includes
all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the
commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.
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Id. at 127. In Coe, the defendant pled guilty to illegally possessing a firearm. Id.
In doing so, he admitted to using a gun during a crime of violence, but first denied
and subsequently stated he could not remember whether he had brandished the
weapon. Id. The district court found Coe had not accepted responsibility because
he did not admit to brandishing the weapon. Id. On appeal, he argued whether he
accepted responsibility for the brandishing of the weapon was not “relevant
conduct” within the meaning of § 1B1.3. Id. We rejected that argument, holding
the defendant’s brandishing of a gun was “relevant conduct” within the meaning of
§ 1B1.3, and Coe thus was not entitled to an acceptance of responsibility reduction.
Id. at 128.
Although Lewis admitted he committed the robbery, he denied brandishing
or possessing a firearm during the commission of that robbery, instead choosing to
go to trial on the § 924(c) charge. The jury found him guilty of carrying and using
a firearm during the robbery, specifically finding Lewis brandished the firearm.
Based on these facts, Lewis’s brandishing the firearm was “relevant conduct”
within the meaning of § 1B1.3. See Coe, 79 F.3d at 128. Accordingly, because
Lewis did not admit to all of the relevant conduct as related to all of the offenses of
conviction, he was not entitled to an acceptance of responsibility reduction. See
U.S.S.G. § 3E1.1, comment. (n.1).
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Finally, the district court’s denial of a § 3E1.1 reduction does not violate the
U.S.S.G. § 2K2.4 rule against “double counting” because that rule merely prohibits
the application of a specific offense characteristic. See U.S.S.G. § 2K2.4,
comment. (n.4) (prohibiting the application of a specific offense characteristic for
possession, brandishing, use, or discharge of a firearm when a defendant is
convicted of both a § 924(c) offense and the underlying offense). No such
characteristic was applied in this case.1
II. CONCLUSION
Lewis’s conviction under § 924(c) did not violate the Commerce Clause, and
his trial on the § 924(c) charge did not violate the Double Jeopardy Clause.
Additionally, the district court did not err in denying him a reduction for
acceptance of responsibility.
AFFIRMED.
1
We note that post-Coe, the commentary to U.S.S.G. § 2K2.4 was amended to “clarify
under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in conjunction
with convictions for other offenses may receive weapon enhancements contained in the guidelines
for those other offenses.” U.S.S.G. App. C., Amendment 599 (emphasis added). This amendment
concerns sentencing enhancements, not reductions. Lewis is appealing the denial of a reduction, so
the amendment to the commentary does not apply to his case.
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