[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 17, 2007
No. 06-11876 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
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
_________________________
(July 17, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and
PRYOR, Circuit Judges.
BLACK, Circuit Judge:
Dominique Lewis appealed his conviction for brandishing a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii),
asserting his trial violated the Double Jeopardy Clause in the Fifth Amendment of
the United States Constitution.1 Relying on our precedent, a panel of this Court
held Lewis waived his double jeopardy claim by not asserting it before the district
court. United States v. Lewis, 207 F. App’x 943, 945 (11th Cir. 2006) (citing
United States v. Williams, 445 F.3d 1302, 1306 n.4 (11th Cir. 2006)). Lewis
petitioned this Court to rehear his case en banc asserting our precedent does not
comport with United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993). Lewis
argues his failure to assert the double jeopardy defense before the district court
constituted a forfeiture, not a waiver, and, pursuant to Olano, his claim was entitled
to plain error review on appeal.
We agreed to hear Lewis’s claim en banc and will now decide whether a
defendant’s failure to raise a double jeopardy claim before the district court
constitutes a forfeiture, in which case we would review the claim for plain error, or
a waiver, in which case we would not review the claim at all.
1
Lewis also asserted (1) his conviction under § 924(c) violated the Commerce Clause
and (2) the district court erred in denying him a U.S.S.G. § 3E.1.1 acceptance-of-responsibility
reduction. Our en banc review does not affect the prior opinion’s resolution of these issues.
2
I. DISCUSSION
Lewis failed to raise his double jeopardy claim before the district court.
Under Federal Rule of Criminal Procedure 52(b), this Court may correct a “plain
error that affects substantial rights . . . even though it was not brought to the
[district] court’s attention.” Fed. R. Crim. P. 52(b). In Olano, the Supreme Court
clarified that “[m]ere forfeiture, as opposed to waiver, does not extinguish an
‘error’ under Rule 52(b).” Olano, 507 U.S. at 733, 113 S. Ct. at 1777 (citation
omitted). Thus, while forfeited claims are reviewed under Rule 52(b) for plain
error, waived claims are not. See id at 733, 113 S. Ct. at 1777. The Supreme Court
also explained the difference between waiver of a constitutional right and forfeiture
of a constitutional right. The Court explained, “Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.” Id. at 733, 113 S. Ct. at 1777 (quotation omitted).
This Circuit’s precedent concerning whether a double jeopardy claim not raised in
the district court is considered forfeited or waived is inconsistent with the Supreme
Court’s analysis in Olano.
Before Olano, when presented with double jeopardy claims raised for the
first time on direct appeal, this Court concluded such claims were “waived,”
without addressing the difference between waiver and forfeiture. In Grogan v.
3
United States, 394 F.2d 287, 289 (5th Cir. 1967),2 for example, the defendant
raised a double jeopardy claim for the first time on appeal. A panel of this Court
stated that the defense “should have been affirmatively raised at some point in the
proceedings in the district court and was thus waived by appellant’s failure to
assert it at the trial.” Id. Nevertheless, the panel proceeded to review the merits of
that claim, without citing a standard of review, and ultimately concluded the
defendant had not been placed in double jeopardy. Id. at 289-90.
Relying on Grogan, in United States v. Bascaro, 742 F.2d 1335, 1365 (11th
Cir. 1984), this Court declined to reach the merits of a defendant’s double jeopardy
claim raised for the first time on appeal, holding that the defendant waived his
defense by failing to assert it before the trial court. Id. (citing Grogan, 394 F.2d at
289).
After the Supreme Court explained the difference between waiver and
forfeiture in Olano, this Court continued to hold that double jeopardy claims raised
for the first time on direct appeal were waived, without discussing the distinction
between waiver and forfeiture. See Williams, 445 F.3d at 1306 n.4. In Williams,
the defendant argued for the first time on appeal that several of his convictions
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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violated the Double Jeopardy Clause. Id. The Court declined to consider the
merits of the defendant’s double jeopardy claim, stating “the double jeopardy
defense is waived by failure to assert it at trial.” Id. (citing Bascaro, 742 F.2d at
1365).
Since Olano, other Circuits confronted with the issue of whether a defendant
waives or forfeits a double jeopardy defense by not asserting it before the trial
court have held the defense is forfeited. See, e.g., United States v. Hernandez-
Guardado, 228 F.3d 1017, 1028-29 (9th Cir. 2000) (holding, after a discussion on
the difference between waiver and forfeiture, “a failure to assert double jeopardy
before the district court was a forfeiture of that right, not a waiver”); United States
v. Branham, 97 F.3d 835, 842 (6th Cir. 1996) (holding that because the defendant
took no affirmative steps to voluntarily waive his claim, his failure to assert double
jeopardy constituted a forfeiture); United States v. Penny, 60 F.3d 1257, 1261 (7th
Cir. 1995) (holding, after discussing Olano, “failure to assert the double jeopardy
defense in the trial court constituted a forfeiture”); United States v. Jarvis, 7 F.3d
404, 409 (4th Cir. 1993) (concluding the defendant “forfeited consideration of the
merits of his former jeopardy claim . . . when he failed to raise the defense at some
point during the proceedings”).
We now hold, consistent with Olano, that a waiver is the intentional
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relinquishment of a known right, whereas the simple failure to assert a right,
without any affirmative steps to voluntarily waive the claim, is a forfeiture to be
reviewed under the plain error standard embodied in Rule 52(b). See Olano, 507
U.S. at 733, 113 S. Ct. at 1777. In the instant case, Lewis took no affirmative steps
to waive his right against double jeopardy; he simply failed to assert his right.
Accordingly, Lewis forfeited his right to a double jeopardy defense, and his claim
is entitled to plain error review.
We will correct a plain error when (1) an error has occurred, (2) the error
was plain, and (3) the error affected substantial rights. United States v. Zinn, 321
F.3d 1084, 1087 (11th Cir. 2003). “If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if . . . the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(quotation omitted). In this case, we need not answer whether the error was plain
or whether the error affected substantial rights because Lewis can show no error.
Lewis pled guilty to conspiracy to interfere with commerce by robbery, in
violation of 18 U.S.C. § 1951(a), and interference with commerce by robbery, in
violation of § 1951(a). The jury found Lewis guilty of brandishing a firearm in
furtherance of a crime of violence (robbery), in violation of 18 U.S.C.
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§ 924(c)(1)(A)(ii). Lewis now asserts his guilty plea to the robbery count
foreclosed a trial on the firearm count because he was already put in jeopardy for
the robbery charge, which is a lesser-included offense of the firearm charge.
Specifically, Lewis asserts the trial and conviction violated the protection under the
Double Jeopardy Clause against a second prosecution after conviction.
“While the Double Jeopardy Clause may protect a defendant against
cumulative punishments for convictions on the same offense, the Clause does not
prohibit the State from prosecuting [a defendant] for such multiple offenses in a
single prosecution.” 3 Ohio v. Johnson, 467 U.S. 493, 500, 104 S. Ct. 2536, 2541
(1984). That case, like this case, involved an initial plea of guilty to only a portion
of a single multi-count indictment. Id. at 496, 104 S. Ct. at 2539. The Court held
that the Double Jeopardy Clause did not prevent trial on the remaining charges in
the indictment as to which the defendant had not pled guilty. Id. at 502, 104 S. Ct.
at 2542. The Court treated the plea and the trial as a single prosecution. Id. at 502,
104 S. Ct. at 2542. Lewis’s claim fails, therefore, because his guilty plea to the
robbery count did not prohibit the Government from prosecuting the firearm count
3
Lewis explicitly states he is not raising a claim regarding the protection against
multiple punishments. Even if he were, his claim would fail because 18 U.S.C.
§ 924(c)(1)(A)(ii) explicitly requires imposition of a seven-year sentence “in addition to”
whatever sentence is due for the crime of violence. See United States v. Dowd, 451 F.3d 1244,
1251-52 (11th Cir. 2006) (holding where Congress has authorized the imposition of consecutive
sentences, it is irrelevant for Double Jeopardy purposes whether one of the crimes is a lesser-
included offense of the other crime).
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in the same indictment. See Johnson, 467 U.S. at 500-02, 104 S. Ct. at 2541-43;
United States v. Schlaen, 300 F.3d 1313, 1317 (11th Cir. 2002) (“[T]he Double
Jeopardy Clause . . . protects defendants against successive prosecutions, not
simultaneous ones . . . . ”). Thus, there is no error regarding double jeopardy, and
Lewis’s claim fails under plain error review.
II. CONCLUSION
We hold that a defendant who simply failed to raise a double jeopardy claim
before the district court, and took no affirmative steps to voluntarily relinquish the
claim, forfeited that claim. On appeal, we review a forfeited claim for plain error.
In this case, however, no error occurred. Therefore, Lewis’s claim fails under
plain error review.
AFFIRMED.
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