[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 4, 2010
No. 08-17061
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-60103-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER ROZIER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 4, 2010)
Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
Christopher Rozier appeals his conviction and sentence under 18 U.S.C. §
922(g)(1) for possession of a firearm and ammunition by a convicted felon. Rozier
challenges the constitutionality of the statute and his sentence. We find that United
States Supreme Court and Eleventh Circuit precedent clearly states that both
Rozier’s conviction and sentence are constitutional. Therefore, we affirm.
I.
Christopher Rozier has spent a considerable part of his life in the criminal
justice system. The result of this life experience is that by October 13, 2007,
Rozier was a convicted felon with several felony drug convictions to his credit.1
One of the collateral consequences of being convicted of a state or federal felony is
that felons are precluded by federal law from possessing any type of firearm.2 On
October 13, 2007, Rozier violated this prohibition.
It was on that day that Eenie Austin, the mother of Rozier’s child, arrived at
Rozier’s house in Pompano Beach, Florida. Austin found Rozier and his current
girlfriend, Erica Williams, in a heated argument wherein Williams was holding a
1
On October 18, 2001, Rozier pled guilty to: Delivery of Cocaine (offense date of June
29, 2001); two counts of Delivery of Cocaine (offense date of July 27, 2001); and Delivery of
Cannabis (offense date of July 27, 2001). On January 6, 2004, Rozier pled guilty to Possession
of Cocaine (offense date of October 15, 2003).
2
“It shall be 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 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).
2
butcher knife to Rozier. At some point, Austin and Rozier began to argue, and
Austin hit Rozier in the face with a cement statue. Rozier responded by pulling out
a handgun. Rozier claims the handgun was for self-defense.
The Broward County Sheriff’s Office executed a search warrant on Rozier’s
house later that day. Upon searching the residence, deputies discovered crack
cocaine, marijuana, $7,000, and ammunition. A .38 caliber revolver was found
buried in a shallow hole in the backyard. Rozier was subsequently convicted of
possession of a firearm and ammunition by a convicted felon pursuant to 18 U.S.C.
§ 922(g)(1). Rozier appeals his conviction and sentence.
II.
Challenges to the constitutionality of a statute are reviewed de novo. See
United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009) (citation omitted).
Rozier’s constitutional challenges to his sentence are reviewed de novo. See
United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir. 2005).
III.
A. Section 922(g)(1) is Constitutional
Rozier challenges his conviction on the grounds that § 922(g)(1) is an
unconstitutional invasion upon his Second Amendment right to bear arms. Rozier
relies on the Supreme Court’s recent ruling in District of Columbia v. Heller,
3
wherein the Court held that “the Second Amendment conferred an individual right
to keep and bear arms.” 554 U.S. __ , 128 S. Ct. 2783, 2799 (2008). Heller was a
law enforcement officer in the District of Columbia who was allowed to carry a
handgun while on duty. Id. at 2788. However, Heller was not allowed to register a
handgun to keep in his D.C. home because of D.C.’s strict bar on handguns.3 Id.
The Supreme Court held that D.C.’s complete ban on handgun possession in the
home, by law-abiding citizens, was an unconstitutional infringement of the Second
Amendment that would not survive any level of scrutiny.4 Id. at 2817–18.
One of the major thrusts of the Court’s ruling was “the inherent right of self-
defense . . . central to the Second Amendment right.” Id. at 2817. Rozier argues
that his case parallels the facts in Heller, in that his possession of a handgun was in
the home and for the purposes of self-defense. For the purposes of this appeal, we
accept Rozier’s assertion that he possessed the handgun for self-defense; however,
the motive behind Rozier’s possession of the handgun is irrelevant. We find 18
U.S.C. § 922(g)(1) to be constitutional, even if a felon possesses a firearm purely
3
D.C. effectively prohibited its residents from legally keeping handguns in their homes
by requiring all firearms to be registered but then denying all handgun registration applications.
Heller, 128 S. Ct. at 2788.
4
“Under any of the standards of scrutiny that we have applied to enumerated
constitutional rights, banning from the home the most preferred firearm in the nation to keep and
use for protection of one’s home and family would fail constitutional muster.” Heller, 128 S. Ct.
at 2817–18 (citation and internal quotation marks omitted).
4
for self-defense.
“Like most rights, the right secured by the Second Amendment is not
unlimited.” Id. When issuing its ruling and settling the actual case and
controversy at issue, Heller stated, “[a]ssuming that Heller is not disqualified from
the exercise of Second Amendment rights, the District must permit him to register
his handgun and must issue him a license to carry it in the home.” Id. (emphasis
added). This indicates that the first question to be asked is not whether the
handgun is possessed for self-defense or whether it is contained within one’s home,
rather the initial question is whether one is qualified to possess a firearm. In
Rozier’s case, the most relevant modifier, as to the question of qualification, is
“felon.”
Prior to taking into account Rozier’s purpose for possessing the handgun, we
must determine whether he is qualified to possess a handgun. Rozier’s Second
Amendment right to bear arms is not weighed in the same manner as that of a law-
abiding citizen, such as the appellant in Heller. While felons do not forfeit their
constitutional rights upon being convicted, their status as felons substantially
affects the level of protection those rights are accorded.5
5
See McKune v. Lile, 536 U.S. 24, 38, 122 S. Ct. 2017, 2027 (2002) (“[L]awful
conviction and incarceration necessarily place limitations on the exercise of a defendant’s
privilege against self-incrimination.”); Jones v. Helms, 452 U.S. 412, 419, 101 S. Ct. 2434, 2440
(1981) (the fundamental right to travel may be restricted, such as when “a person has been
5
The Court made this clear when it referred to those “disqualified from the
exercise of Second Amendment rights.” Id. Heller stated that “nothing in our
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons . . . .”6 Id. This language suggests that statutes
disqualifying felons from possessing a firearm under any and all circumstances do
not offend the Second Amendment. Recently, in United States v. White, we held
that Heller recognized § 922(g)(1) as “a presumptively lawful longstanding
prohibition.” White, 11th Cir. 2010, __ F.3d __, *5 (No. 08-16010, January 11,
2010).
Thus, statutory restrictions of firearm possession, such as § 922(g)(1), are a
constitutional avenue to restrict the Second Amendment right of certain classes of
convicted of a crime within a State.”); Bell v. Wolfish, 441 U.S. 520, 545–46, 99 S. Ct. 1861,
1877 (1979) (“[S]entenced prisoners enjoy freedom of speech and religion . . . they are protected
against invidious discrimination on the basis of race . . . they may claim the protection of the
Due Process Clause.” However, “[l]awful incarceration brings about the necessary withdrawal
or limitation of many privileges and rights, a retraction justified by the considerations underlying
our penal system.” (citation omitted)); Richardson v. Ramirez, 418 U.S. 24, 54–56, 94 S. Ct.
2655, 2671 (1974) (finding that a state law disenfranchising felons was constitutional because
the Fourteenth Amendment affirmatively sanctions, but does not mandate, disenfranchisement
on the basis of criminal conviction).
6
Rozier argues that this language in Heller is merely dicta and we should not give it full
weight of authority. First, to the extent that this portion of Heller limits the Court’s opinion to
possession of firearms by law-abiding and qualified individuals, it is not dicta. See Denno v.
Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1283 (11th Cir. 2000) (“Dictum may be defined as
a statement not necessary to the decision and having no binding effect.” (emphasis added)).
Second, to the extent that this statement is superfluous to the central holding of Heller, we shall
still give it considerable weight. See Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n.4
(11th Cir. 1997) (“[D]icta from the Supreme Court is not something to be lightly cast aside.”).
6
people. Rozier, by virtue of his felony conviction, falls within such a class.
Therefore, the fact that Rozier may have possessed the handgun for purposes of
self-defense (in his home), is irrelevant.
B. Rozier Was Properly Sentenced by the District Court
Rozier was sentenced to 210 months’ imprisonment for violation of §
922(g)(1). According to 18 U.S.C. § 924(a)(2), the basic maximum sentence for a
violation of § 922(g)(1) is 120 months’ imprisonment. However, Rozier had
previously been convicted of at least three serious drug offenses on different
occasions, and “[i]n the case of a person who violates section 922(g)(1) of this title
and has three previous convictions . . . for a . . . serious drug offense, . . . such
person shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
Rozier argues that because these prior convictions were not included within the
indictment, nor proven to a jury, any sentence over the 120-month maximum of §
924(a)(2) is unconstitutional. This argument runs contrary to the established law
of the Supreme Court and this Circuit. See Almendarez-Torres v. United States,
523 U.S. 224, 230–35, 118 S. Ct. 1219, 1224–26 (1998) (concluding that
subsections such as § 924(e)(1), which substantially increase the maximum penalty
for persons with prior convictions, are penalty provisions and do not define a
separate crime that must be proven beyond a reasonable doubt to a jury). Thus, it
7
was enough that the district judge, at sentencing, found that Rozier had in fact been
convicted of three or more prior serious drug offenses.
Rozier also contends that his sentence was in error because the district judge
sentenced him to more than fifteen years’ imprisonment. Rozier argues §
924(e)(1) must be interpreted to have a maximum sentence of fifteen years because
it does not explicitly state a maximum sentence, but rather only says “not less than
fifteen years.” However, we have ruled directly on this subject and found that the
maximum penalty, for convictions covered by the § 924(e) sentencing
enhancement, is life imprisonment. United States v. Brame, 997 F.2d 1426, 1429
(11th Cir. 1993). We find no merit to this argument.
IV.
We find § 922(g)(1) is a constitutional restriction on Rozier’s Second
Amendment right. The circumstances surrounding Rozier’s possession of a
firearm in violation of § 922(g)(1) are irrelevant. Finally, Rozier’s sentence was
constitutional and in accord with our precedent.
AFFIRMED.
8