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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10717
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00102-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALTONNE MARQUAVIYES FINLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(March 5, 2020)
Before WILLIAM PRYOR, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
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Altonne Finley challenges his 210-month sentence for possessing powder
cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), possessing a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), and being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). On appeal, Finley argues that his lawyer provided ineffective
assistance of counsel by failing (1) to object to his § 922(g)(1) charge on the basis
that neither his indictment, nor his plea agreement, nor the district court informed
him that knowledge of his status as a felon was an element of the charged offense;
and (2) to notify the district court of a change in the law relating to penalty
enhancements for repeat offenders under the First Step Act of 2018. Finley also
asserts that his conviction and plea are invalid in light of the Supreme Court’s
holding in Rehaif v. United States, 139 S. Ct. 2191 (2019). Lastly, Finley argues
that § 922(g) is unconstitutional because it exceeds the limits of Congress’s power
under the Commerce Clause.
As the facts of the case are familiar to the parties, we’ll proceed straight to
the merits of Finley’s appeal.
I
The Constitution provides criminal defendants the right to effective
assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S.
668, 684–86 (1984). Generally, a defendant’s right to effective assistance of
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counsel applies at all stages of a criminal prosecution. See United States v. Wade,
388 U.S. 218, 226–27 (1967). To demonstrate ineffective assistance of counsel,
the “defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness and (2) that such failure prejudiced him in that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” United States v. Pease, 240 F.3d 938,
941 (11th Cir. 2001) (internal quotation marks and citation omitted).
“A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. “It is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. Rather, he must show that “the result . . . would have
been different.” Id. at 694. Specifically, where a defendant pleads guilty, he must
show “a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985).
“Whether a criminal defendant’s trial counsel was ineffective is a mixed
question of law and fact, subject to de novo review.” United States v. Bender, 290
F.3d 1279, 1284 (11th Cir. 2002) (quotation omitted). “We will not generally
consider claims of ineffective assistance of counsel raised on direct appeal where
the district court did not entertain the claim nor develop a factual record.” Id.
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“The preferred means for deciding a claim of ineffective assistance of counsel is
through a 28 U.S.C. § 2255 motion even if the record contains some indication of
deficiencies in counsel’s performance.” United States v. Patterson, 595 F.3d 1324,
1328 (11th Cir. 2010) (internal quotation marks and citation omitted). “If the
record is sufficiently developed, however, this court will consider an ineffective
assistance of counsel claim on direct appeal.” Bender, 290 F.3d at 1284. Because
the record here is sufficiently developed, we’ll consider Finley’s two ineffective-
assistance-of-counsel claims in turn.
A
Finley first contends that his lawyer provided ineffective assistance of
counsel by failing to object to his § 922(g)(1) charge on the ground that his
indictment, his plea agreement, and the district court failed to inform him that
knowledge of his status as a felon was an element of the charged offense.
An attorney’s failure to anticipate a change in the law typically will not
support a claim of ineffective assistance of counsel. See Black v. United States,
373 F.3d 1140, 1146 (11th Cir. 2004); Jones v. United States, 224 F.3d 1251,
1257–58 (11th Cir. 2000) (“Since the district court would be required to follow the
law of this circuit until it was overruled by the Supreme Court or an en banc panel
of this court, it was not completely unreasonable for counsel to make a strategic
decision to forego a claim that was a loser under the then-current state of the
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law.”). Furthermore, “it generally does not fall below the objective standard of
reasonableness for trial counsel to fail to raise a claim in anticipation that
undeniably would lose under current law but might succeed based on the outcome
of a forthcoming Supreme Court decision.” Dell v. United States, 710 F.3d 1267,
1282 (11th Cir. 2013).
In Rehaif, the Supreme Court reversed our precedent and concluded that the
word “knowingly” in 18 U.S.C. § 924(a)(2) modifies the elements of § 922(g) so
that “in a prosecution under . . . § 922(g) and § 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from possessing a firearm.”
Rehaif, 139 S. Ct. at 2195–96, 2200. We’ve since held that Rehaif “did not
announce a new rule of constitutional law”—rather, it clarified that knowledge of
one’s status as a felon is an element of § 922(g)(1). In re Palacios, 931 F.3d 1314,
1315 (11th Cir. 2019) (internal quotation marks omitted).
Here, Finley’s counsel did not provide ineffective assistance relating to the
Rehaif issue. This Court’s precedent clearly forecloses an ineffective-assistance-
of-counsel claim based on failure to raise an objection that would not succeed
under current law, but which could succeed depending on a forthcoming Supreme
Court decision. See Black, 373 F.3d at 1146; Dell, 710 F.3d at 1282. Because our
law at the time of Finley’s plea hearing established that what would eventually
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become known as a Rehaif-based objection would fail, see United States v. Reed,
941 F.3d 1018, 1020–21 (11th Cir. 2019), Finley’s counsel was not deficient for
failing to raise such an objection.
B
Finley next contends that his lawyer provided ineffective assistance by
failing to notify the district court of a change in the law regarding penalty
enhancements for repeat offenders under the First Step Act of 2018.
If a defendant faces a charge under 21 U.S.C. § 841 and has previously been
convicted of a serious drug felony, the government may file a notice for enhanced
penalties under 21 U.S.C. § 851. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)–(B),
851(a)(1). Section 401 of the First Step Act changed the nature of the predicate
felonies that could be used to apply these enhanced penalties for repeat offenders.
See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Specifically, the
First Step Act added two new requirements for an offense to qualify as a serious
drug felony: (1) “the offender [must have] served a term of imprisonment of more
than 12 months”; and (2) the offender must have been released no more than 15
years before the instant offense. Id. § 401(a)(1).
Finley’s counsel was not deficient for failing to raise this change in the rules
under the First Step Act. This issue was not relevant to sentencing, as the
government explicitly did not seek an enhancement in this case. Finley, however,
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alleges that “[a] judge who has disfavor for a defendant . . . may consider the
government’s decision not to invoke the enhancement as a justification for the
court to apply an upward departure from the sentencing guidelines.” Even
assuming that is true, the judge here explicitly stated his reasons for varying above
the recommended Sentencing Guidelines range, none of which related to the
considerations underlying the First Step Act—rather, the judge’s rationale was
rooted in the serious nature of Finley’s crimes.1 Accordingly, Finley’s counsel was
not ineffective as to this issue.
II
A
We next consider whether Finley’s indictment and conviction are invalid in
light of the Supreme Court’s ruling in Rehaif.
When, as here, a party fails to raise an issue before the lower court, we
review only for plain error. See United States v. Peters, 403 F.3d 1263, 1270 (11th
Cir. 2005). Indeed, “[e]ven where a new rule of law is at issue . . . a court of
appeals [may not] overlook a failure to object unless” there is plain error.
Henderson v. United States, 568 U.S. 266, 272 (2013). A party may establish plain
1
The district court noted that Finley had (1) “threatened to shoot children and a witness”; (2)
“possessed drugs”; (3) “possessed a [stolen] high-capacity rifle with a 30-round clip in it”; (4)
had a number of previous convictions pertaining to illegal firearm and drug possession; (5) had
multiple domestic violence convictions; and (6) displayed a pattern of disorderly conduct
towards law enforcement officers.
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error by showing that there was “an error, that is plain, which affects substantial
rights.” United States v. Haynes, 764 F.3d 1304, 1308 (11th Cir. 2014).
“Substantial rights are affected if there is a reasonable probability of a different
result absent the error.” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir.
2015). Where a defendant challenges a conviction after pleading guilty, he “must
show a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). “A defendant
must thus satisfy the judgment of the reviewing court, informed by the entire
record, that the probability of a different result is ‘sufficient to undermine
confidence in the outcome’ of the proceeding.” Id. (quoting Strickland, 466 U.S.
at 694).
Additionally, we should not correct a plain error unless it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Haynes, 764
F.3d at 1308 (quotation omitted). And where a defendant fails to establish one
element of plain-error review, we need not assess the remaining elements. See
United States v. Candelario, 240 F.3d 1300, 1312 (11th Cir. 2001).
B
Section 922(g)(1) provides that it is “unlawful for any 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
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ammunition.” Section 924(a)(2) provides that any person who “knowingly
violates” § 922(g) may be punished by up to ten years in prison. In Rehaif, the
Supreme Court concluded that the word “knowingly” in § 924(a)(2) modifies the
elements of § 922(g) so that “in a prosecution under 18 U.S.C. § 922(g) and §
924(a)(2), the Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of persons barred
from possessing a firearm.” Rehaif, 139 S. Ct. at 2195–96, 2200.
We recently held that a defendant’s indictment that failed to charge him with
knowing his prohibited status when possessing a firearm was a plain error in light
of Rehaif. Reed, 941 F.3d at 1021 (“[The defendant] has established errors in his
indictment and at his trial that Rehaif made plain.”). But, in Reed, we held that
because the defendant there had been convicted of multiple felonies, had stipulated
to his status as a felon, and had testified “that he knew he was not supposed to have
a gun,” he couldn’t “prove that the errors affected his substantial rights or the
fairness, integrity, or public reputation of his” judicial proceedings. Id. at 1021–
22.
Here, for at least three reasons, we need not vacate Finley’s guilty plea or
conviction. First, we have held that voluntary and intelligent guilty pleas are not
rendered involuntary or unintelligent by subsequent judicial decisions but are
enforceable unless a provision in the plea agreement states otherwise. See United
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States v. Sanchez, 269 F.3d 1250, 1284–86 (11th Cir. 2001) (en banc) (rejecting
defendants’ arguments, in the wake of Apprendi v. New Jersey, 530 U.S. 466
(2000), that their guilty pleas were invalidated by a change in the law), abrogated
on other grounds by United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005).
Second, Finley has not shown that he would have pleaded not guilty but for the
error, as he fails to offer arguments on that issue. And third, even if Finley had
asserted that he would not have pled guilty but for the Rehaif error, the record
sufficiently establishes that Finley knew of his status as a convicted felon based on
the nature of the offenses for which he was previously convicted, and he answered
in the affirmative when asked at his plea hearing whether he was “aware as a felon
[that he was] not allowed to possess any weapons.” Thus, these errors did not
affect Finley’s substantial rights.
III
Finally, we consider Finley’s argument that 18 U.S.C. § 922(g) is
unconstitutional because it exceeds Congress’s power under the Commerce Clause.
“We review a district court’s conclusions as to the constitutionality of a challenged
statute de novo.” United States v. Eckhardt, 466 F.3d 938, 943 (11th Cir. 2006).
“[O]nly the Supreme Court or this Court sitting en banc can judicially overrule a
prior panel decision.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir.
2004).
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It is unlawful for a convicted felon “to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). “We have
repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of
Congress’s power under the Commerce Clause because it contains an express
jurisdictional requirement.” United States v. Jordan, 635 F.3d 1181, 1189 (11th
Cir. 2011). “The jurisdictional requirement is satisfied when the firearm in
question has a ‘minimal nexus’ to interstate commerce,” and § 922(g)(1) is “not
unconstitutional as applied to a defendant who possessed a firearm only intrastate”
if “the firearm in question . . . travelled in interstate commerce.” Id. (internal
quotation marks and citations omitted).
Here, there is no error because, as Finley concedes, binding precedent
forecloses his arguments regarding the Commerce Clause. See id. And, in any
event, § 922(g) was not unconstitutionally applied in Finley’s case because he
admitted in his plea agreement that his gun and ammunition moved through
interstate commerce, which is a sufficient nexus.
AFFIRMED.
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