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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14227
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00407-VEH-HGD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MICHAEL BAIRD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 27, 2013)
Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
John Michael Baird appeals his conviction and 180-month sentence for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On
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appeal, Baird argues that: (1) the district court erred in denying his motion for
judgment of acquittal because the evidence was insufficient to prove that he
possessed a firearm; (2) § 922(g)(1) is unconstitutional in light of District of
Columbia v. Heller, 554 U.S. 570 (2008); (3) the district court should have
recognized an affirmative “safekeeping” defense to § 922(g); (4) the district court
erred in finding that his prior convictions for second-degree burglary and third-
degree burglary were “violent felonies” within the meaning of the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”); and (5) the ACCA’s residual clause
is unconstitutionally vague. After careful review, we affirm.
We review de novo a district court’s denial of a motion for judgment of
acquittal on sufficiency of evidence grounds. United States v. Friske, 640 F.3d
1288, 1290 (11th Cir. 2011). We review the constitutionality of statutes de novo.
United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000). We review
de novo the district court’s ruling that a conviction qualifies as a “violent felony”
for purposes of the ACCA. United States v. Matthews, 466 F.3d 1271, 1273 (11th
Cir. 2006). However, issues not raised at trial are reviewed only for plain error.
United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir. 2000). To establish plain
error, a defendant must show that there is (1) error, (2) that is plain, (3) affects
substantial rights, and (4) seriously affects the fairness, integrity, or public
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reputation of judicial proceedings. Id. “An error is plain if it is obvious and clear
under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).
First, we reject Baird’s claim that the evidence was insufficient to prove that
he possessed a firearm. In ruling on a sufficiency of evidence claim, we consider
“the evidence in the light most favorable to the Government, drawing all
reasonable inferences and credibility choices in the Government’s favor.” Friske,
640 F.3d at 1290-91 (quotation omitted). The evidence need not be inconsistent
with every reasonable hypothesis except that of a defendant’s guilt, and the jury is
free to choose among the reasonable conclusions drawn from the evidence. Id. at
1291. Credibility questions are answered by the jury, and we will assume that the
jury answered them all in a manner that supports the verdict. United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).
For a violation of § 922(g)(1), the government must prove “(1) that the
defendant was a convicted felon, (2) that the defendant was in knowing possession
of a firearm, and (3) that the firearm was in or affecting interstate commerce.”
United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000). To establish
the knowing-possession element “[t]he prosecution need show only that the
defendant consciously possessed what he knew to be a firearm.” Id. at 1298.
Actual or constructive possession is sufficient to support a conviction for unlawful
possession under § 922(g). United States v. Pedro, 999 F.2d 497, 500 (11th Cir.
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1993). “A defendant has constructive possession if he exercises ownership,
dominion, or control over the firearm.” United States v. Gunn, 369 F.3d 1229,
1235 (11th Cir. 2004). “A defendant also has constructive possession if he has the
power and intention to exercise dominion or control.” Id. A defendant’s presence
in the vicinity of a firearm or mere association with another who possesses a
firearm is insufficient to constitute constructive possession, but the firearm need
not be on or near the defendant to amount to knowing possession. United States v.
Perez, 661 F.3d 568, 576 (11th Cir. 2011), cert. denied, 132 S.Ct. 1943 (2012).
In this appeal, Baird’s possession of a firearm is the only element in dispute.
As the record shows, sufficient evidence, when viewed in a light most favorable to
the government, established Baird’s knowing, constructive possession of the
firearms: (1) Baird provided a written statement providing that he removed his
father’s guns in 2008; (2) Baird moved into the second level of the house in 2009;
(3) Baird moved into the basement in December 2010; (4) Baird offered to sell
Edwards the firearms “two or three weeks” after moving to the basement; and (5)
the firearms were plainly visible in the basement on February 6, 2011. This
evidence allowed the jury to reasonably infer that Baird exercised dominion and
control over the firearms in 2008, when he removed them from his father, in 2009
or 2010, when he moved them to the basement, and in 2010, when he offered to
sell the firearms to Matthew Edwards. And it certainly showed more than his mere
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presence in the area of the firearms. Thus, the jury reasonably could have inferred
that Baird had not ceased to exercise such control over the firearms on February 6,
2011, and that he was guilty of being a felon in possession of a firearm under §
922(g)(1). See Friske, 640 F.3d at 1290-91.
As for Baird’s argument that the firearms were not plainly visible, that
Matthew Bales never saw the firearms, and that there was no testimony that he was
in area of the basement where the firearms were stored, the testimony of Deputy
Jared Hopper and Edwards testimony contradicts those arguments, especially when
viewed in a light most favorable to the verdict. To the extent Baird challenges the
credibility of Edwards or the deputies, the jury answers credibility questions, and
we assume the jury answered them in a way that supports the verdict. Thompson,
473 F.3d at 1142. Because a reasonable juror could have found Baird’s guilt
beyond a reasonable doubt, sufficient evidence supports his conviction.
Next, we find no merit in Baird’s claim that § 922(g)(1) is unconstitutional.
The Second Amendment states that “[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 interpreted this
language to “guarantee [an] individual right to possess and carry weapons in case
of confrontation.” 554 U.S. at 592. The Heller Court held that the District of
Columbia’s ban on handgun possession in the home by law-abiding citizens
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violated the Second Amendment. Id. at 635. The Court qualified the right to bear
arms, stating that “[l]ike most rights, [it] is not unlimited,” and that “nothing in
[Heller] should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings .
. . .” Id. at 626. In a footnote, the Court clarified that the enumerated
“presumptively lawful regulatory measures [are] only [] examples; [this] list does
not purport to be exhaustive.” Id. at 627 n.26.
After Heller, we held that § 922(g)(1) is a “constitutional avenue to restrict
the Second Amendment right of” convicted felons. United States v. Rozier, 598
F.3d 768, 771 (11th Cir. 2010). Noting that the Heller Court specifically
disclaimed any erosion of the “longstanding prohibitions on the possession of
firearms by felons,” we said that “statutes disqualifying felons from possessing a
firearm under any and all circumstances do not offend the Second Amendment.”
Id. (quotation omitted). We are bound by prior panel decisions unless or until they
are overruled by the Supreme Court or by us sitting en banc. United States v.
Jordan, 635 F.3d 1181, 1189 (11th Cir.), cert. denied, 132 S.Ct. 356 (2011).
Here, the district court did not err in convicting Baird of violating §
922(g)(1). Since Heller, we have held that § 922(g)(1) does not violate the Second
Amendment, and that decision has not been overruled by us sitting en banc or by
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the Supreme Court. See Jordan, 635 F.3d at 1189; Rozier, 598 F.3d at 771.
Baird’s argument is therefore without merit.
Third, we are unpersuaded by Baird’s claim that the district court plainly
erred in failing to recognize an affirmative “safekeeping” defense to § 922(g). For
starters, we review this issue for plain error because even though Baird explained
to the district court that he only possessed the firearms to take them away from his
father at the advice of his father’s physician, he did not argue that the district court
should adopt an affirmative safekeeping defense to cover such conduct. In this
Court, Baird acknowledges that we’ve never held that there is an affirmative
defense for safekeeping. Because Baird cites no authority establishing that the
district court erred in failing to sua sponte recognize an affirmative safekeeping
defense to § 922(g), the error could not be plain, and Baird’s claim fails. See
Eckhardt, 466 F.3d at 948.
Fourth, we disagree with Baird’s claim that his prior convictions for second-
degree burglary and third-degree burglary do not constitute “violent felonies” for
purposes of the ACCA. The Alabama second-degree burglary statute in effect at
the time of Baird’s prior convictions provided that:
(a) A person commits [second-degree burglary] if he knowingly enters or
remains unlawfully in a building with intent to commit theft or a felony
therein and, if in effecting entry or while in the building or in immediate
flight therefrom, the person or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; or
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(2) Causes physical injury to any person who is not a participant in
the crime; or
(3) Uses or threatens the immediate use of a dangerous instrument.
(b) In the alternative to subsection (a) of this section, a person commits
[second-degree burglary] if he unlawfully enters a lawfully occupied
dwelling-house with intent to commit a theft or a felony therein.
Ala. Code § 13A-7-6(a), (b) (1975). Third-degree burglary in Alabama at the time
of Baird’s prior convictions required a person to knowingly enter and remain
unlawfully in a building with intent to commit a crime therein. Id. § 13A-7-7(a).
The Alabama code defined “building” for the purposes of burglary offenses to
include, inter alia, any “vehicle, aircraft or watercraft” used for lodging or business
purposes. Id. § 13A-7-1(2).
Under the ACCA, a defendant is subject to a 15-year mandatory minimum
sentence if he violates § 922(g) and has 3 distinct prior convictions for a violent
felony, serious drug offense, or both. 18 U.S.C. § 924(e)(1). The ACCA defines a
“violent felony” as follows:
[A]ny crime punishable by imprisonment for a term exceeding one year . . .
that --
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another[.]
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Id. § 924(e)(2)(B)(i)-(ii). The ACCA provides that a “burglary” that is punishable
by more than a year in prison is a violent felony. Id. § 924(e)(2)(B)(ii). Alabama
law makes second-degree burglary a Class B felony, which is punishable by up to
20 years in prison. Ala. Code §§ 13A-7-6(c), 13A-5-6(a)(2) (1975). In Taylor v.
United States, 495 U.S. 575, 599 (1990), the Supreme Court held that a person has
been convicted of burglary for purposes of the ACCA if he is convicted of any
crime, regardless of its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with
intent to commit a crime. The Supreme Court also noted that some burglary
statutes define burglary more broadly than generic burglary, such as by including
boats or cars among property that may be burglarized. Id.
A conviction under a non-generic burglary statute still qualifies as a
“burglary” under the ACCA if the defendant was actually found guilty of the
elements of generic burglary. Id. at 602. In determining whether a conviction
under a non-generic burglary statute qualifies as generic burglary, courts employ
the “modified categorical approach,” which allows the court to determine which
statutory phrase was the basis for the conviction by consulting the trial records,
including charging documents. Shepard v. United States, 544 U.S. 13, 26 (2005);
United States v. Sneed, 600 F.3d 1326, 1330-32 (11th Cir. 2010). We have held
that a defendant’s previous third-degree burglary convictions in Alabama counted
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for ACCA purposes because the indictments charged the defendant with burglary
of the “building of Richie’s Shoe Store, Inc.” and “building of, to wit: Whiddon’s
Gulf Service Station,” which, as a shoe store and service station, respectively, were
places that generally fell within the scope of generic burglary. United States v.
Rainer, 616 F.3d 1212, 1216 (11th Cir. 2010).
Under the ACCA’s residual clause, a crime that “otherwise involves conduct
that presents a serious potential risk of physical injury to another” also is a violent
felony. 18 U.S.C. § 924(e)(2)(B)(ii). If we cannot determine from the record
whether a conviction under a non-generic burglary statute was a burglary of a
building, we consider whether the conviction satisfies the residual clause. See
Matthews, 466 F.3d at 1274-75 (holding that a defendant who was not convicted of
generic burglary was nevertheless convicted of violent crimes under the ACCA’s
residual clause). Burglary is dangerous because it can end in a confrontation or
violence. Sykes v. United States, 564 U.S. __, __, 131 S.Ct. 2267, 2273 (2011).
Offenses that are not strict liability, negligence, or recklessness crimes qualify as
crimes of violence under the ACCA’s residual clause if they categorically pose a
serious potential risk of physical injury similar to the risk posed by an enumerated
crime. United States v. Chitwood, 676 F.3d 971, 979 (11th Cir. 2012).
Here, the parties agree that Alabama’s second-degree and third-degree
burglary statutes are non-generic burglary statutes, since the Code broadly defines
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the term “building” to include vehicles. Ala. Code § 13A-7-1(2) (1975).
However, Baird’s burglary convictions could still qualify as a “burglary” within
the meaning of the ACCA if he was guilty of the elements of generic burglary, as
demonstrated by the proper Shepard documents. Shepard, 544 U.S. at 26; Taylor,
495 U.S. at 602. To the extent Baird argues that no such Shepard documents were
introduced, the presentence investigation report (“PSI”) referred to the underlying
indictment for each predicate offense, and charging documents are acceptable
under Shepard. Thus, as in Rainer, the district court here was permitted to
conclude that Baird’s burglary of “El Gringo’s Mexican Restaurant” was a
burglary of a building, and, in turn, qualified as generic burglary. Rainer, 616 F.3d
at 1216. On this record, we ascertain no error in the court’s determination
determined that one of Baird’s third-degree burglary convictions qualified as
“burglary” for purposes of the ACCA enhancement. See Taylor, 495 U.S. at 602.
As for whether the district court erred in determining that Baird’s nine
second-degree burglary convictions fell under the ACCA’s residual clause, second-
degree burglary is similar in kind to the risk posed by the most similar enumerated
offense in the ACCA, namely, generic burglary. See United States v. Harris, 608
F.3d 1222, 1227 (11th Cir. 2010). Generic burglary poses a risk of physical injury
due to the potential for a violent confrontation. See Sykes, 131 S.Ct. at 2273.
Baird’s prior second-degree burglary convictions carried a risk of physical injury
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equal to, or greater than, generic burglary because each offense involved
possession of a firearm by Baird or a codefendant. Although the relevant Alabama
second-degree burglary statute could have included burglary of vehicles used for
lodging or business -- suggesting that the risk of a confrontation could be
diminished -- there is still some potential for a confrontation. Indeed, because the
statute requires, inter alia, that the defendant be armed with explosives or a deadly
weapon, the risk of such a confrontation involving a deadly weapon is greater than
in a generic burglary. See Ala. Code §§ 13A-7-1(2), 13A-7-6(a)(1) (1975).
Accordingly, the district court did not err in finding that Baird’s nine convictions
for second-degree burglary fell under the ACCA’s residual clause and qualified as
predicate offenses.
Finally, Baird argues that the ACCA’s residual clause is unconstitutionally
vague. However, we have just rejected that argument, in binding precedent. See
United States v. Gandy, __ F.3d __, 2013 WL 692152, *3-*4 (11th Cir. Feb. 27,
2013). Accordingly, Baird’s claim has no merit, and we affirm.
AFFIRMED.
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