[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 20, 2007
No. 07-10144 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00064-CR-ORL-22-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT TIM MARTIN,
a.k.a. Robert Martin,
a.k.a. Robert T. Martin,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 20, 2007)
Before ANDERSON, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Robert Martin appeals his conviction and 235-month sentence for two
counts of possession of a firearm in or affecting interstate commerce by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1). He
argues that § 922(g)(1) is facially unconstitutional under the Commerce Clause, or
alternately, unconstitutional as applied to him. Further, he argues that the district
court acted unconstitutionally in increasing his sentence based on prior convictions
that were not proven to a jury. As these issues were not raised before the district
court, we review them for plain error. See United States v. Peters, 403 F.3d 1263,
1270 (11th Cir. 2005).
We have previously examined the constitutionality of § 922(g)(1).1 United
States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996). Under the Commerce
Clause, Congress’ power to regulate is limited to “Commerce with foreign Nations,
and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8,
cls. 1 & 3. However, In McAllister, we held that § 922(g)(1) falls within this
regulatory power because it contains a jurisdictional element that links its
application to activities that affect interstate commerce. McAllister, 77 F.3d at 390.
1
18 U.S.C. § 922(g)(1) states: “It shall be unlawful for any person - (1) who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . .
to ship or transport in interstate of foreign commerce, or possess in or affecting commerce, any
firarm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.”
2
Similarly, we have upheld § 922(g)(1) against as-applied constitutional challenges
when, as in this case, the government demonstrated at trial that the firearm
possessed by the defendant was manufactured out-of-state and thus traveled across
state lines in the past. See United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir.
2001) (finding that such evidence is sufficient to establish a minimal nexus with
interstate commerce). We thus find no error in the judgment below.
Martin next argues that the district court violated his Sixth Amendment right
to trial by an impartial jury when it relied on his prior convictions to enhance his
sentence. As Martin concedes, his argument is precluded by the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219,
140 L. Ed. 2d 350 (1998). Under this binding precedent, “the Sixth Amendment
does not require the government to allege in its indictment or to prove beyond a
reasonable doubt that a defendant’s prior convictions qualify him for enhanced
sentencing.” United States v. Dowd, 451 F. 3d 1244, 1253 (11th Cir.) (citing
Almendarez-Torres, 523 S.S at 226, 118 S. Ct. at 1222), cert. denied 127 S. Ct. 335
(2006). Accordingly, we find that Martin’s Sixth Amendment is foreclosed and we
affirm the decision below.
AFFIRMED.
3