United States v. Gerald L. Banks

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11069 Oct. 28, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 08-00019-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD L. BANKS,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(October 28, 2009)

Before BIRCH, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

Gerald L. Banks appeals from his sentence of 78 months’ imprisonment,

imposed after he pled guilty to one count of possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). On appeal, he argues that: (1) the district court erred by increasing his

offense level by four levels, pursuant to U.S.S.G. § 2K2.1(b)(6), for committing a

felony while possessing a firearm; and (2) 18 U.S.C. § 922(g) violates the Second

Amendment to the United States Constitution because it infringes on an

individual’s right to possess a firearm. After thorough review, we dismiss the

appeal in part, and affirm in part.

We review the validity of a sentence-appeal waiver de novo. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008), cert. denied, 129 S.Ct. 2792

(2009). We also review de novo the constitutionality of a statute. United States v.

Cespedes, 151 F.3d 1329, 1331 (11th Cir. 1998). However, when a party fails to

raise an issue before the lower court, we review the issue for plain error. United

States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002). Plain error occurs if (1) was

error, (2) that was plain, (3) that affected the defendant’s substantial rights, and

(4) that seriously affected the “fairness, integrity, or public reputation of the

judicial proceedings.” Id. We have held that an error cannot be “plain” unless it is

“clear under current law.” United States v. Humphrey, 164 F.3d 585, 588 (11th

Cir. 1999). Thus, where neither we nor the Supreme Court has resolved an issue

directly, and other circuits are split on it, there can be no plain error in regard to

that issue. See id.

2
First, we reject Banks’s claim that the district court erred by increasing his

offense level by four levels, pursuant to U.S.S.G. § 2K2.1(b)(6), for committing a

felony while possessing a firearm because sentence enhancements based on

relevant conduct are unconstitutional. Banks’s plea agreement, however, contained

a sentence-appeal-waiver provision. A sentence-appeal waiver is effective if it is

made knowingly and voluntarily. Johnson, 541 F.3d at 1066. “The waiver is valid

if the government shows either that: (1) the district court specifically questioned

the defendant about the waiver; or (2) the record makes clear that the defendant

otherwise understood the full significance of the waiver.” Id.

As the record shows, Banks entered into a plea agreement that included a

sentence-appeal waiver, and the district court reviewed the sentence-appeal waiver

with him at the plea hearing. Banks confirmed that he understood the waiver, and

that he was waiving his right to appeal knowingly and voluntarily, and his

sentence-appeal waiver is thus valid and enforceable. See id. Although Banks’s

waiver reserved the right to appeal on three grounds, he specifically waived his

right to appeal the court’s guideline calculations, as he now attempts to do. As a

result, Banks’s argument is barred by his sentence-appeal waiver, and we dismiss

his appeal of his sentence.

3
We likewise find no merit in Banks’s argument, based on District of

Columbia v. Heller, 128 S.Ct. 2783 (2008), that 18 U.S.C. § 922(g) violates the

Second Amendment to the United States Constitution because it infringes on an

individual’s right to possess a firearm. The Second Amendment provides: “A well

regulated Militia, being necessary to the security of a free State, the right of the

people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In

Heller, the Supreme Court decided the issue of whether the District of Columbia’s

prohibition of possessing a usable handgun in the home violated the Second

Amendment. 128 S.Ct. at 2787-88. In striking down the ban on usable handguns,

the Court concluded that the Second Amendment “guarantee[s] the individual right

to possess and carry weapons in case of confrontation.” Id. at 2797, 2821-22.

However, the Court noted that “the right secured by the Second Amendment is not

unlimited.” Id. at 2816. The Court expressly stated that nothing from its decision

“should be taken to cast doubt on longstanding prohibitions on the possession of

firearms by felons.” Id. at 2816-17.

Reviewing the issue for plain error, as Banks concedes we must, Banks’s

claim fails. In Heller, the Supreme Court did not decide the issue of the

constitutionality of statutes such as § 922(g) that prohibit felons from possessing a

firearm. Rather, the Court specifically noted that its decision should not “cast

4
doubt on longstanding prohibitions on the possession of firearms by felons.” Id.

Furthermore, we have not ruled on the issue of whether § 922(g) violates the

Second Amendment. Because the issue is not “clear under current law,” the

district court did not plainly err by finding that Banks violated § 922(g). See

Humphrey, 164 F.3d at 588.

AFFIRMED IN PART, DISMISSED IN PART.