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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 19-14279 & 22-12968
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMAAL A. HAMEEN,
a.k.a. Charles Flowers,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:18-cr-00115-MMH-JBT-1
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2 Opinion of the Court 19-14279
____________________
Before LAGOA, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Jamaal Abu Talib Hameen appeals his conviction and sen-
tence for possession of a firearm by a convicted felon. 1 First, he
argues that the district court erred in permitting him to proceed
pro se at sentencing without conducting a second Faretta 2 hear-
ing. Second, he argues that the district court abused its discretion
by finding that he had failed to show excusable neglect for his un-
timely Rehaif 3 motion for a judgment of acquittal or, in the alter-
native, for a new trial. Third, he contends that the omission of
the knowledge-of-status element from the indictment and jury
instructions constituted plain error that prejudiced his substantial
rights and infected the fairness, integrity, or public reputation of
the proceedings. Fourth, he contends that 18 U.S.C. § 922(g) is an
unconstitutional exercise of Congress’s authority under the
Commerce Clause. Fifth, Hameen contends that the district
court erred when it determined that his prior Florida conviction
for aggravated assault was a “violent felony” under the Armed
Career Criminal Act (“ACCA”) and a “crime of violence” under
1 We granted Hameen’s motion to consolidate appeal No. 22-12968
with his direct appeal, No. 19-14279.
2 Faretta v. California, 422 U.S. 806 (1975).
3 Rehaif v. United States, 139 S. Ct. 2191 (2019).
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19-14279 Opinion of the Court 3
the Sentencing Guidelines. Sixth, he contends that the district
court erred in determining that his prior Florida drug convictions,
pursuant to Fla. Stat. § 893.13, were “serious drug offenses” under
the ACCA and “controlled substance offenses” under U.S.S.G.
§ 2K2.1(a)(2). Finally, he contends that his ACCA-enhanced sen-
tence is unconstitutional.
I. DISCUSSION
A. Second Faretta Hearing
A district court’s conclusion that a defendant’s waiver of his
Sixth Amendment right to counsel was knowing and voluntary is
a mixed question of law and fact that we review de novo. United
States v. Garey, 540 F.3d 1253, 1268 (11th Cir. 2008) (en banc).
The government bears the burden of proving the waiver was val-
id in a case on direct appeal. Id. We review this de novo. United
States v. Hakim, 30 F.4th 1310, 1318 (11th Cir. 2022).
A defendant’s right to self-representation is implicit in the
Sixth Amendment. Faretta, 422 U.S. at 819. To do so, the de-
fendant must knowingly and intelligently waive his right to coun-
sel and must be made aware of the dangers and disadvantages of
self-representation. Id. at 835. However, the right to self-
representation is not absolute. Indiana v. Edwards, 554 U.S. 164,
171 (2008). A trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist
misconduct. Faretta, 422 U.S. at 834 n.46; see also United States
v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995) (stating that “a de-
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4 Opinion of the Court 19-14279
fendant who misbehaves in the courtroom may forfeit his consti-
tutional right to be present at trial”).
The “ideal method of assuring that a defendant under-
stands the consequences of a waiver is for the trial court to con-
duct a pretrial hearing at which the district court should inform
the defendant of the nature of the charges against him, possible
punishments, basic trial procedure and the hazards of represent-
ing himself.” Garey, 540 F.3d at 1266 (quotation marks omitted).
However, failing to hold a Faretta hearing is not an error as a
matter of law if the record demonstrates that the defendant
knowingly and voluntarily elected to represent himself. Nelson v.
Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002). We have observed
that the ultimate test is the defendant’s understanding, stating
that a waiver may be valid where the record establishes that the
defendant understood the risks of self-representation and freely
chose to face them. United States v. Owen, 963 F.3d 1040, 1049
(11th Cir. 2020).
Although we have not yet addressed in a published opinion
the continuing validity of a valid waiver, several circuit courts
have held that a valid waiver remains in effect at subsequent pro-
ceedings in the absence of an explicit revocation by the defendant
or a sufficient change of circumstances that would suggest that
the district court should make a renewed inquiry of the defend-
ant. See, e.g., United States v. Hantzis, 625 F.3d 575, 581 (9th Cir.
2010) (persuasive authority) (stating that no federal circuit that
has considered the issue “has held that renewed Faretta warnings
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are required at each subsequent court proceeding”); United States
v. McBride, 362 F.3d 360, 367 (6th Cir. 2004) (persuasive authori-
ty) (adopting the rule that “a defendant’s waiver of counsel at trial
carries over to subsequent proceedings absent a substantial
change in circumstances”); United States v. Unger, 915 F.2d 759,
762 (1st Cir. 1990) (persuasive authority) (holding that the district
court was free to find that the defendant’s earlier waiver was still
in force at the sentencing hearing in the absence of intervening
events); United States v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989)
(persuasive authority) (“Once the defendant has knowingly and
intelligently waived his right to counsel, only a substantial change
in circumstances will require the district court to inquire whether
the defendant wishes to revoke his earlier waiver.”); Panagos v.
United States, 324 F.2d 764, 765 (10th Cir. 1963) (persuasive au-
thority) (concluding that there were no facts or circumstances
preventing “the initial waiver of the right to counsel, knowingly
and intelligently made, from extending to and being fully effective
at the time of sentencing”); Davis v. United States, 226 F.2d 834,
840 (8th Cir. 1955) (persuasive authority) (holding that defend-
ant’s waiver of counsel when pleading guilty was an implied
waiver as to any subsequent proceedings, including sentencing
four days later).
We have recognized that a valid waiver of counsel may oc-
cur not only when a cooperative defendant affirmatively invokes
his right to self-representation, but also when an uncooperative
defendant rejects the only counsel to which he is constitutionally
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6 Opinion of the Court 19-14279
entitled, understanding his only alternative is self-representation.
Garey, 540 F.3d at 1265. The defendant filed a motion to disquali-
fy his counsel and substitute different counsel based on purported
irreconcilable differences and conflicts of interest. Id. at 1259. Af-
ter a hearing, the trial court denied the defendant’s motion and
told him he could either accept his court-appointed counsel or
proceed pro se. Id. After further colloquy in which the defendant
repeatedly refused to waive his right to counsel but also refused
to let his court-appointed counsel represent him, the defendant
stated he was involuntarily electing to represent himself, and the
district court ultimately found that he had knowingly and volun-
tarily decided to proceed pro se. Id. at 1259–60. We stated that,
when an indigent defendant rejects competent, conflict-free coun-
sel, he may waive his right to counsel “by his uncooperative con-
duct, so long as his decision is made with knowledge of his op-
tions and the consequences of his choice.” Id. at 1266. We char-
acterized our holding as merely recognizing that, “in some in-
stances, a defendant’s conduct will reveal a voluntary decision to
choose the path of self-representation over the continued assis-
tance of counsel.” Id.
We have further stated that “[a] defendant cannot use the
right to counsel as a means to manipulate the court and cause de-
lay” and “may not be put to service as a means of delaying or tri-
fling with the court.” United States v. Graham, 643 F.3d 885, 894
(11th Cir. 2011) (quotation marks omitted). Evidence of a de-
fendant’s manipulation or intentional delay implies his greater
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understanding of the proceedings and an understanding of the
risks and complexities of a criminal trial. Owen, 963 F.3d at 1051–
52.
In McLeod, the defendant engaged in “abusive, threaten-
ing, and coercive” conduct toward his second appointed counsel,
which caused counsel to move to withdraw. 53 F.3d at 326. The
district court did not allow the defendant to testify at the hearing
held on counsel’s motion after he refused to take an oath, and the
defendant requested a third attorney after the hearing. Id. We
held that, even though the district court did not warn the defend-
ant that his misbehavior may lead to his self-representation, the
district court properly concluded that the defendant had forfeited
his right to counsel. Id.
Here, the district court did not err in failing to conduct a
second Faretta hearing, because Hameen’s alleged mental health
issues did not rise to the level of an intervening event that suffi-
ciently changed his prior waiver to the point that it was under-
mined. First, the record indicates that Hameen did not have a his-
tory of serious mental health issues. He testified at the Faretta
hearing that, besides a brief stint in counseling for depression in
2006, he had no history of mental illness. He also denied any psy-
chiatric or psychological treatment and testified that he periodical-
ly obtained religious counseling, not professional counseling. No-
tably, the unobjected-to facts in the PSI stated that Hameen was
diagnosed with a personality disorder while enlisted in the mili-
tary and was discharged after becoming medically unstable. But
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8 Opinion of the Court 19-14279
the probation officer did not receive a response to a request for
Hameen’s military records and noted that Hameen told Dr.
Demery during the competency evaluation that he was dis-
charged for smoking marijuana, not mental illness. Although
medical records showed that Hameen had previously been diag-
nosed with PTSD, Dr. Demery reported in his competency evalu-
ation and testified at the competency hearing that Hameen did
not have a history of serious mental illness that would serve as a
basis to find him incompetent. And while Hameen’s sister told
the probation officer that Hameen suffered from mental illness,
she was unable to cite a particular illness and repeatedly stated
that he was “highly intelligent.”
Next, the record shows that Hameen understood the na-
ture and consequences of the proceedings. Garey, 640 F.3d at
1265. Hameen exhibited an understanding of the charges, possi-
ble punishments, basic trial procedure, and the hazards of repre-
senting himself. Id. at 1266. He testified that he had previously
represented himself in several state-court criminal cases, including
both misdemeanor and felony charges, had conducted at least five
civil lawsuits pro se, and was familiarizing himself with the federal
rules. While Dr. Demery stated that Hameen had “an inflated
perception about his understanding of the law,” he found that
Hameen understood the nature and consequences of the proceed-
ings against him, was capable of properly assisting in his defense,
appreciated the possible penalties, understood the adversarial na-
ture of the legal process, and had an adequate appreciation of the
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range of plea options. After engaging with Hameen throughout
numerous hearings and filings, the court repeatedly stated that he
was “clearly very intelligent” and was “fully capable” of represent-
ing himself.
Further, the record does not directly support or imply that
Hameen’s mental capacity diminished throughout the proceed-
ings such that his pre-trial waiver of counsel could no longer be
considered to have been knowing and intelligent. His assertion
before sentencing that he suffered from mental health issues for
which he was on new medication did not constitute a change of
circumstances that required the district court to conduct a second
Faretta hearing. Hameen did not assert that he suffered from
mental health issues that would prevent him from self-
representation until after his fourth appointed counsel was per-
mitted to withdraw prior to sentencing. He explained that he was
on new medication that did not seem to be working and did not
know whether he was “going or coming” because his body had
not yet responded to the medication. Yet, his behaviors after the
alleged change in circumstance do not reflect any change in his
ability to understand the proceedings. To the contrary, Hameen
subsequently raised multiple objections to his PSI, including ob-
jections to his classification as an armed career criminal, and ar-
guments based upon Rehaif. The Rehaif objections especially
demonstrate his continued understanding of the proceedings and
awareness of changes in relevant law, as the Supreme Court is-
sued its decision in Rehaif nearly four months after the jury con-
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10 Opinion of the Court 19-14279
victed Hameen of possessing a firearm as a convicted felon. Re-
haif, 139 S. Ct. 2191 (issued June 21, 2019).
Moreover, the sequence of events in this case strongly sug-
gests that Hameen was engaging in calculated maneuvers de-
signed to force the district court to delay the proceedings, which
is a further implication of his continued understanding of the pro-
ceedings and their risks and complexities. See Owen, 963 F.3d at
1051–52. As noted by the district court, a criminal defendant may
forfeit his right to counsel by virtue of his actions. See McLeod,
53 F.3d at 325 (holding that a defendant who is abusive towards
his attorney may forfeit his right to counsel). Here, the record is
rife with instances of Hameen engaging in behavior to force his
several appointed counsel to withdraw and otherwise “manipu-
late the court and cause delay.” Graham, 643 F.3d at 894. As the
district court observed, Hameen also had a “pattern of raising is-
sues at the eleventh hour.”
By engaging in obstructionist misconduct, refusing the only
counsel to which he was entitled, explicitly requesting to proceed
pro se, and harassing his attorneys with lawsuits, interlocutory
appeals claiming ineffective assistance, and threats of physical vio-
lence, Hameen forfeited his right to counsel. Faretta, 422 U.S. at
834 n.46; Graham, 643 F.3d at 894; McLeod, 53 F.3d at 325; Garey,
540 F.3d at 1265–66. Thus, the court did not err by failing to con-
duct a second Faretta hearing prior to sentencing because the rec-
ord indicates that, throughout the entirety of his case before the
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19-14279 Opinion of the Court 11
district court, Hameen understood the nature and consequences
of the proceedings. Garey, 640 F.3d at 1265.
B. Untimely Rehaif Motion
We review a district court’s denial of a motion on the
grounds of untimeliness for abuse of discretion. United States v.
Snipes, 611 F.3d 855, 864 (11th Cir. 2010). A district court can
abuse its discretion when it applies an incorrect legal standard, fol-
lows improper procedures in making the determination, or makes
clearly erroneous factual findings. United States v. Brown, 415
F.3d 1257, 1266 (11th Cir. 2005). While we liberally construe the
filings of pro se litigants, we still require conformity with proce-
dural rules. See United States v. Padgett, 917 F.3d 1312, 1316 n.3
(11th Cir. 2019).
“A defendant may move for a judgment of acquittal, or re-
new such a motion, within 14 days after a guilty verdict or after
the court discharges the jury, whichever is later.” Fed. R. Crim.
P. 29(c)(1). “Any motion for a new trial grounded on any reason
other than newly discovered evidence must be filed within 14
days after the verdict or finding of guilty.” Id. 33(b)(2). The dis-
trict court may extend the time for filing a motion after this peri-
od expires if the moving party failed to act due to excusable ne-
glect. Fed. R. Crim. P. 45(b)(1)(B).
Where a district court in a criminal proceeding determines
“excusable neglect” in light of Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, the factors to consider in-
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12 Opinion of the Court 19-14279
clude the following: (1) the danger of prejudice to the opposing
party; (2) the length of the delay and its potential impact on the
judicial proceedings; (3) the reason for the delay; and (4) whether
the movant acted in good faith. 507 U.S. 380, 395 (1993). The Pi-
oneer standard is “at bottom an equitable one, taking account of
all relevant circumstances surrounding the party’s omission.” Id.
The Supreme Court accorded “primary importance” to the ab-
sence of prejudice to the nonmoving party and to the interest of
efficient judicial administration. Cheney v. Anchor Glass Con-
tainer Corp., 71 F.3d 848, 850 (11th Cir 1996).
Here, the district court did not abuse its discretion in deny-
ing Hameen’s October 10, 2019, Rehaif motion as untimely be-
cause he failed to show excusable neglect. First, as to Hameen’s
argument that the district court misapplied the law by failing to
consider prejudice to the government, the main focus of the
court’s discussion as to Hameen’s prejudice appears to have been
in the context of its merits consideration, not in its consideration
of the Pioneer factors. But, Hameen was not prejudiced by dis-
missal of his motion because the jury heard ample evidence to
support a finding that he knew his prohibited status at the time he
possessed the firearm. As to prejudice against the government,
Hameen correctly notes on appeal that the government was
aware of Rehaif prior to sentencing and its potential impact on his
case. But, it had no reason to expect that he would file a motion
just before sentencing based on his knowledge-of-status that
would continue litigation if granted. See Cheney v. Anchor Glass
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Container Corp., 71 F.3d 848, 850 (11th Cir 1996) (holding the
nonmovant was not prejudiced by the movant’s six-day delay
where the parties expected to continue litigating). Although prej-
udice is of “primary importance,” the balance of the other Pioneer
factors heavily weighs against a finding of excusable neglect. See
id.
As to the second Pioneer factor, the length of the delay was
extensive, as Hameen filed the motion more than seven months
after the jury returned its verdict and over three months after the
Supreme Court’s decision in Rehaif. And its potential to interfere
with the proceedings was amplified by his filing the motion only
two business days before his sentencing hearing, which had al-
ready been continued by over a month. Therefore, the length of
the delay and its potential impact on the proceedings would
counsel against granting the request. See Pioneer, 507 U.S. at 395.
Third, while Hameen raises his pro se status as an excuse for the
delay, he filed several other pro se Rehaif-based motions months
prior to his October 10 motion. But, regardless of those prior fil-
ings, his pro se status does not excuse his nonconformity with
procedural rules, and he did not explain why he did not file his
motion until two months after he forfeited his right to counsel.
Moreover, his assertion on appeal that the timing of the Rehaif
decision and his discovery of the superseding indictment were
reasons for the delay is unpersuasive, as Rehaif was decided in Ju-
ly 2019 and he failed to raise the knowledge-of-status argument in
any of his previous Rehaif-based motions. Finally, in light of the
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14 Opinion of the Court 19-14279
whole record exhibiting Hameen’s pattern of late filings and at-
tempts to delay proceedings, the court properly found that he had
not acted in good faith.
C. Omission of Knowledge-of-Status from Indictment and
Jury Instructions
We ordinarily review de novo whether an indictment is in-
sufficient and whether the district court misstated the law in its
jury instruction. United States v. Steele, 178 F.3d 1230, 1233 (11th
Cir. 1999) (indictment); United States v. Joseph, 709 F.3d 1082,
1093 (11th Cir. 2013) (jury instruction). However, we review
challenges to an indictment and jury instructions not presented
below for plain error. United States v. Vernon, 723 F.3d 1234,
1260–61 (11th Cir. 2013); Joseph, 709 F.3d at 1093. In Reed, we
reviewed for plain error new challenges to the indictment, jury
instructions, and the sufficiency of the evidence that were based
on Rehaif, which was decided after our initial opinion affirming
the appellant’s conviction. United States v. Reed, 941 F.3d 1018,
1020 (11th Cir. 2019); see also Greer v. United States, 141 S. Ct.
2090, 2096 (2021) (applying plain-error review to unpreserved
knowledge-of-status challenges to the indictment and jury instruc-
tions based on Rehaif). In Greer, the Supreme Court held that,
“[i]n felon-in-possession cases, a Rehaif error is not a basis for
plain-error relief unless the defendant first makes a sufficient ar-
gument or representation on appeal that he would have presented
evidence at trial that he did not in fact know he was a felon.”
Greer, 141 S. Ct. at 2100.
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To demonstrate plain error, the appellant must show that
an error occurred that was both plain and affected his substantial
rights, meaning that he must show a reasonable probability that,
but for the error, the outcome of the proceeding would have been
different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016). If the appellant does so, we may, at our discretion, correct
the error if it seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. Reed, 941 F.3d at 1021.
The Supreme Court has instructed that appellate courts may con-
sult the entire record, including the presentence investigation re-
port (“PSI”), when considering the effect of a Rehaif instructional
error on a defendant’s substantial rights. Greer, 141 S. Ct. at 2098.
To be sufficient, an indictment must (1) present the essen-
tial elements of the charged offense; (2) notify the defendant of
the charges to be defended against; and (3) enable the defendant
to rely on a judgment under the indictment as a bar against future
prosecutions for the same offense. United States v. Wayerski, 624
F.3d 1342, 1349 (11th Cir. 2010). This is sufficient to “satisfy the
Sixth Amendment’s guarantee of notice to the accused of the na-
ture and the cause of the accusation, and the Fifth Amendment’s
assurance that a grand jury will return an indictment only when it
finds probable cause for all elements of the crime.” Id. Addition-
ally, the indictment’s specific reference to the statute upon which
the charge is based adequately informs the defendant of the
charge. Id. at 1349–50. An indictment also fulfills the constitu-
tional standard when it tracks the statute’s wording, as long as the
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language sets forth the essential elements of the crime. Id. at
1350. Failure to allege a mens rea element is a non-jurisdictional
error. United States v. Brown, 752 F.3d 1344, 1353–54 (11th Cir.
2014).
Section 922(g)(1) makes it unlawful for any person, “who
has been convicted in any court of, a crime punishable by impris-
onment for a term exceeding one year . . . to . . . possess in or af-
fecting commerce, any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1). Section 924(a)(2) provides that a defendant who
knowingly violates § 922(g) is subject to up to ten years’ impris-
onment. Id. § 924(a)(2). A statutory minimum of 15 years’ im-
prisonment applies to “a person who violates section 922(g)” and
qualifies as an armed career criminal. Id. § 924(e)(1).
In Rehaif, the Supreme Court held that, “[i]n a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must
prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons
barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. A
defendant’s knowledge of his status can be inferred from circum-
stantial evidence. Id. at 2198 (citing Staples v. United States, 511
U.S. 600, 615 n.11 (1994)).
In Moore, we rejected the argument that Rehaif created a
jurisdictional defect in an indictment, holding that an indictment’s
omission of a statement that a defendant knew that he was a felon
prohibited from possessing a firearm was a non-jurisdictional
omission. United States v. Moore, 954 F.3d 1322, 1336–37 (11th
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Cir. 2020), cert. denied, 141 S. Ct. 2819 (2021) (stating “the law is
clear: the omission of an element in an indictment does not de-
prive the district court of subject matter jurisdiction”); see also
United States v. Morales, 987 F.3d at 978–79 (11th Cir. 2021)
(holding that the indictment’s omission of the knowledge-of-
status element did not deprive the district court of subject-matter
jurisdiction).
Following Rehaif, we concluded in Reed that the defendant
had established that errors had occurred with respect to his in-
dictment and at his trial that Rehaif made plain because his in-
dictment failed to allege that he knew that he was a felon, the jury
was not instructed to find that he was a felon, and the govern-
ment was not required to prove that he was felon. Reed, 941 F.3d
at 1021. However, we also concluded that the defendant could
not “prove that the errors affected his substantial rights or the
fairness, integrity, or public reputation of his trial” because the
record established that the jury could conclude that he knew that
he was a felon at the time that he possessed the gun. Id. We spe-
cifically pointed to the parties’ stipulation that the defendant had
been convicted of a felony offense in the past and that he had not
had his right to possess a firearm restored, his admission on
cross-examination that he knew that he was not permitted to
have a gun, and his failure to object to the PSI’s statement that he
had served at least 18 months in prison prior to his arrest for fire-
arm possession. Id. at 1021–22.
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Under our prior panel precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). To overrule a prior decision,
the Supreme Court or en banc decision must be clearly on point.
Id. There is no exception to the rule based upon an overlooked
or misinterpreted precedent reason or a perceived defect in the
prior panel’s reasoning or analysis as it relates to the law in exist-
ence at that time. United States v. Fritts, 841 F.3d 937, 942 (11th
Cir. 2016). However, “when a precedent of the Supreme Court
has direct application, we must follow it.” United States v. John-
son, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc) (quotation
marks and brackets omitted).
Arguments raised for the first time in a reply brief are
deemed abandoned. Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 682–83 (11th Cir. 2014).
Here, Hameen’s argument that the district court erred in
declining to dismiss his indictment as jurisdictionally defective is
foreclosed by our binding precedent in Moore. Hameen cannot
satisfy plain-error review because, while an error that was plain
did occur, he fails to show that the error affected his substantial
rights. See Reed, 941 F.3d at 1020–22. While Hameen argues that
the deficiencies in the indictment violated his Fifth and Sixth
Amendment rights and this substantially affected his rights, this
Court has held that an indictment that specifically mentions a
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statute will adequately inform the defendant of the charges. See
Wayerski, 624 F.3d at 1349–50. Hameen’s indictment specifically
listed 18 U.S.C. §§ 922(g)(1) and 924(e). And the indictment
tracked the language of § 922(g)(1) and cited 15 of his prior con-
victions and the dates on or about when the felonious conduct
occurred. Nonetheless, in light of Reed and Rehaif, an error that
was plain occurred because the indictment did not require that
the government prove that Hameen knew that he belonged to a
category of people prohibited from possessing a firearm and the
jury was not instructed that, in order to find him guilty, it needed
to find beyond a reasonable doubt that he knew he was a convict-
ed felon at the time he possessed the firearm. See Reed, 941 F.3d
at 1021; Rehaif, 139 S. Ct. at 2200.
Hameen’s arguments on appeal fail to meet the require-
ment set by the Supreme Court in Greer to show that the error
affected his substantial rights. See Greer, 141 S. Ct. at 2100. In his
supplemental filing, Hameen avers that he met the Greer re-
quirement by arguing on appeal that, had the indictment and jury
instructions included the knowledge-of-status element, he would
have presented evidence at trial that he did not know he was a
felon. However, the representation to which he refers was made
in his reply brief, not his initial brief, and this Court declines to
address arguments raised for the first time in a reply brief. See
Sapuppo, 739 F.3d at 682–83. Accordingly, because his represen-
tation on appeal speaks to the mere possibility that he could satis-
fy the requirement in Greer and he makes no such argument or
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20 Opinion of the Court 19-14279
representation in his initial brief, like the defendants in Greer,
Hameen cannot satisfy plain-error review. See Greer, 141 S. Ct.
at 2100.
Even if this Court were to consider the merits, Hameen
cannot show a reasonable probability that, but for the errors, the
outcome of his trial probably would have been different. Molina
Martinez, 136 S. Ct. at 1343. Hameen’s indictment listed 15 felo-
ny convictions that occurred prior to his possession in the instant
case. And the court at sentencing admitted certified copies of
Hameen’s three felony judgments that were relied upon in the
PSI’s classification of him as an armed career criminal after the
government presented evidence matching his fingerprints to each
of the judgments of conviction. The jury could have inferred that
Hameen knew he was a felon from his stipulation that he was a
convicted felon, his testimony that he had been convicted of ten
prior felony convictions in the preceding ten years (admitting the
fact of each conviction, date, and nature of the offense), and his
testimony as to his 2017 Florida conviction for selling heroin.
Moreover, the jury was permitted to reject Hameen’s explanation
as to picking up a jacket at random without knowing it contained
a firearm and infer his knowledge-of-status from circumstantial
evidence of the officers’ testimony that he possessed the firearm
tucked under his arm and attempted to avoid arrest by turning
away from Driggers when the officer reached out to arrest him
for trespassing. Rehaif, 139 S. Ct. at 2198, 2200 (stating
knowledge of status can be inferred from circumstantial evi-
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19-14279 Opinion of the Court 21
dence). Despite Hameen not testifying to his knowledge of his
felon status at trial, the jury could reasonably have concluded, if
presented with proper jury instructions, that he knew he had been
convicted of at least one crime punishable by a term exceeding
one year. See Reed, 941 F.3d at 1021–22. Therefore, he cannot
show that the errors affected his substantial rights or the fairness,
integrity, or public reputation of his trial. Greer, 141 S. Ct. at
2100; Reed, 941 F.3d at 1021–22.
D. Constitutionality of § 922(g)
We ordinarily review constitutional challenges to statutes
de novo. United States v. Wright, 607 F.3d 708, 715 (11th Cir.
2010). However, where a constitutional challenge to a statute is
raised for the first time on appeal, we review only for plain error.
Id.
Pursuant to § 922(g)(1), it is unlawful for a convicted felon
“to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to re-
ceive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 18 U.S.C.
§ 922(g)(1).
In Lopez, the Supreme Court held that the Gun-Free
School Zones Act of 1990 was an invalid exercise of Congress’s
Commerce Clause power, in part, because the statute could not
be sustained on the reasoning that the regulated activities, in the
aggregate, had a substantial effect on interstate commerce. Unit-
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22 Opinion of the Court 19-14279
ed States v. Lopez, 514 U.S. 549, 561 (1995). In addition, the Su-
preme Court emphasized that the challenged statute “contain[ed]
no jurisdictional element which would ensure, through case-by-
case inquiry, that the firearm possession in question affect[ed] in-
terstate commerce.” Id.
Since Lopez, we have repeatedly upheld § 922(g) as a con-
stitutional exercise of Congress’s power under the Commerce
Clause. See Wright, 607 F.3d at 715 (citing United States v. Nich-
ols, 124 F.3d 1265 (11th Cir. 1997), and United States v. McAllis-
ter, 77 F.3d 387 (11th Cir. 1996)); see also United States v. Scott,
263 F.3d 1270, 1273 (11th Cir. 2001) (holding that “the jurisdic-
tional element of the statute, i.e., the requirement that the felon
‘possess in or affecting commerce, any firearm or ammunition,’
immunizes § 922(g)(1) from [a] facial constitutional attack”). We
have also held that § 922(g) is constitutional as applied where the
government proved a “minimal nexus” to interstate commerce by
demonstrating that the firearm had traveled in interstate com-
merce. Wright, 607 F.3d at 715–16 (quotation marks omitted);
see also United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir.
2011) (holding that § 922(g) is not unconstitutional as applied to “a
defendant who possessed a firearm only intrastate” when the
government demonstrated that the firearm moved in interstate
commerce). In Wright, we determined that firearms that were
manufactured in Massachusetts and later discovered in the de-
fendant’s possession in Florida necessarily traveled in interstate
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19-14279 Opinion of the Court 23
commerce, which satisfied the minimal-nexus requirement. 607
F.3d at 716.
Here, our binding precedent forecloses Hameen’s argu-
ment that § 922(g) is an unconstitutional exercise of Congress’s
authority under the Commerce Clause.
E. Florida Aggravated Assault Conviction
We review de novo a district court’s conclusion that a prior
conviction is a violent felony within the meaning of the ACCA,
United States v. Oliver, 962 F.3d 1311, 1316 (11th Cir. 2020), or a
crime of violence under the Guidelines, United States v. Rosales-
Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012). We review for plain
error an appellant’s argument that a prior Florida conviction for
aggravated assault is not a violent felony under the ACCA be-
cause it can be committed with a mens rea of recklessness where
the appellant failed to raise the issue before the district court.
United States v. Innocent, 977 F.3d 1077, 1085 (11th Cir. 2020),
cert. denied, 141 S. Ct. 2827 (2021).
The ACCA caps a federal prison sentence for possessing a
firearm as a felon under 18 U.S.C. § 922(g)(1) at ten years, except
when the person being sentenced has three or more prior convic-
tions for violent felonies or serious drug offenses, which increases
the minimum prison sentence to 15 years. 18 U.S.C. § 924(a)(2),
(e)(1). The ACCA defines the term “violent felony” as any crime
punishable by a term of imprisonment exceeding one year that:
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24 Opinion of the Court 19-14279
(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 pre-
sents a serious potential risk of physical injury to an-
other.
18 U.S.C. § 924(e)(2)(B). The first prong of this definition is some-
times referred to as the “elements clause,” while the second prong
contains the “enumerated crimes” and, finally, what is commonly
called the “residual clause.” United States v. Owens, 672 F.3d 966,
968 (11th Cir. 2012). The Supreme Court in Johnson held that the
residual clause of the ACCA is unconstitutionally vague because it
creates uncertainty about how to evaluate the risks posed by a
crime and how much risk it takes to qualify as a violent felony.
Johnson v. United States, 576 U.S. 591, 597–99, 606 (2015). The
Court clarified that, in holding that the residual clause is void, it
did not call into question the application of the elements clause
and the enumerated crimes of the ACCA’s definition of a violent
felony. Id.
A “crime of violence” for purposes of § 4B1.1(a) is defined
in § 4B1.2(a), the career-offender provision, and includes any of-
fense under federal or state law, punishable by imprisonment for
a term exceeding one year that has, as an element, the “use, at-
tempted use, or threatened use of physical force against the per-
son of another.” U.S.S.G. §§ 4B1.1, comment. (n.1), 4B1.2(a)(1)
(elements clause). Because the elements clauses in § 4B1.2(a) and
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19-14279 Opinion of the Court 25
the ACCA “are virtually identical,” we look to cases applying the
ACCA for guidance when considering whether an offense quali-
fies as a crime of violence under the Sentencing Guidelines. Unit-
ed States v. Ochoa, 941 F.3d 1074, 1107 (11th Cir. 2019), cert. de-
nied, 140 S. Ct. 2553 (2020).
Florida aggravated assault is an assault “[w]ith a deadly
weapon without intent to kill” or “[w]ith an intent to commit a
felony.” Fla. Stat. § 784.021(1). An assault, in turn, is defined by
Florida law as “an intentional, unlawful threat by word or act to
do violence to the person of another, coupled with an apparent
ability to do so, and doing some act which creates a well-founded
fear in such other person that such violence is imminent.” Id.
§ 784.011(1).
In Turner, we held that Florida aggravated assault categor-
ically qualifies as a violent felony under the ACCA’s elements
clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1338 (11th Cir. 2013), abrogated on other grounds by John-
son v. United States, 576 U.S. 591 (2015). In Golden, we reaf-
firmed the holding in Turner as binding for the determination
that a conviction for Florida aggravated assault constitutes a
crime of violence under the similarly worded elements clause in
the Guidelines. United States v. Golden, 854 F.3d 1256, 1256–57
(11th Cir. 2017) (stating “Turner is binding”); see also Innocent,
977 F.3d at 1085 (reaffirming Turner).
In June 2021, while Hameen’s appeal was pending, the Su-
preme Court in Borden held that a criminal offense with a mens
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26 Opinion of the Court 19-14279
rea of recklessness does not qualify as a “violent felony” under the
ACCA’s elements clause. Borden v. United States, 141 S. Ct.
1817, 1834 (2021). Writing for four of the Justices, Justice Kagan
reasoned that the phrase “against another” in the elements clause,
which modifies “the use of force,” requires that the perpetrator
direct his action at or target another individual and that reckless
conduct is not aimed in that prescribed manner. Id. at 1826.
Concurring in judgment and writing separately, Justice Thomas
further reasoned that a crime that can be committed through
mere recklessness does not have as an element the “use of physi-
cal force” because that phrase has a well-understood meaning ap-
plying only to intentional acts designed to cause harm. Id. at 1835
(Thomas, J., concurring).
After Borden, this Court certified questions to the Florida
Supreme Court regarding the mens rea required for a Florida ag-
gravated assault conviction. Somers v. United States, 15 F.4th
1049 (2021). The Florida Supreme Court held the Florida’s aggra-
vated assault statute demands specific intent to direct a threat at
another person and therefore cannot be violated by a reckless act.
Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022). Based on
the Florida Supreme Court’s answer to our certified questions
that aggravated assault under Florida law requires a mens rea of
at least knowing conduct, we held aggravated assault under Flori-
da law qualifies as an ACCA predicate offense under Borden.
Somers v. United States, 66 F.4th 890, 891 (11th Cir. 2023). Be-
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19-14279 Opinion of the Court 27
cause Somers holds that a Florida aggravated assault conviction is
a crime of violence under ACCA, Hameen’s challenge fails.
F. Serious Drug Offense
We review de novo whether a conviction qualifies as a se-
rious drug offense under the ACCA. United States v. White, 837
F.3d 1225, 1228 (11th Cir. 2016). We also review de novo wheth-
er a defendant’s prior conviction qualifies as a controlled sub-
stance offense under U.S.S.G. § 4B1.2(b). United States v. Lange,
862 F.3d 1290, 1293 (11th Cir. 2017).
To qualify as a “serious drug offense” under the ACCA, the
prior state conviction must (1) involve manufacturing, distrib-
uting, or possessing with intent to manufacture or distribute a
controlled substance, and (2) carry a maximum prison term of ten
years or more. 18 U.S.C. § 924(e)(2)(A)(ii).
Section 2K2.1 of the Sentencing Guidelines provides for a
base offense level of 24 if the defendant committed the instant of-
fense after having previously been convicted of at least 2 crimes of
violence or controlled substance offenses. U.S.S.G. § 2K2.1(a)(2).
The term “controlled substance offense” carries the same mean-
ing for purposes of § 2K2.1 as it does under the career-offender
guidelines in § 4B1.2. Id. § 2K2.1, comment. (n.1). “Controlled
substance offense” is defined, in § 4B1.2, as an offense under fed-
eral or state law, punishable by imprisonment for a term that is
greater than one year that prohibits (1) the manufacture, distribu-
tion, import, export, or dispensing of a controlled substance or
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28 Opinion of the Court 19-14279
(2) the possession of a controlled substance with the intent to
manufacture, import, export, distribute, or dispense. Id.
§ 4B1.2(b).
Section 893.13 of the Florida Statutes criminalizes the sale,
manufacture, and delivery of a controlled substance, as well as
possession of a controlled substance with intent to sell, manufac-
ture, or deliver. Fla. Stat. § 893.13(1)(a)(1). Knowledge of the il-
licit nature of the substance is not an element of the offense. Fla.
Stat. § 893.101.
In Smith, we held that Fla. Stat. § 893.13(1) is both a “seri-
ous drug offense,” under 18 U.S.C. § 924(e)(2)(A), and a “con-
trolled substance offense,” under U.S.S.G. § 4B1.2(b), stating
“[n]either definition requires that a predicate state offense in-
cludes an element of mens rea with respect to the illicit nature of
the controlled substance.” 775 F.3d at 1268 (quotation marks
omitted). We have subsequently reaffirmed Smith’s holding as
binding in several published decisions. See United States v. Pridg-
eon, 853 F.3d 1192, 1198 (11th Cir. 2017) (rejecting the argument
that Smith was wrongly decided and affirming Smith’s holding
that convictions under Fla. Stat. § 893.13 qualify as controlled sub-
stance offenses under the Guidelines); United States v. Bishop, 940
F.3d 1242, 1253–54 (11th Cir. 2019), cert. denied, 140 S. Ct. 1274
(2020) (same).
In Shular, the Supreme Court held that a court determining
whether an offense qualifies as a serious drug offense need only
consider whether the offense’s elements “necessarily entail” the
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19-14279 Opinion of the Court 29
types of conduct identified in the ACCA’s definition of a serious
drug offense, rather than engage in a “generic-offense matching
exercise.” 140 S. Ct. at 783–84 (quotation marks omitted) (affirm-
ing our decision that the petitioner’s prior convictions under Fla.
Stat. § 893.13(1)(a) qualified as serious drug offenses under the
ACCA, noting we based our holding in the case on Smith). We
have reaffirmed after Smith that the argument that a prior convic-
tion under Fla. Stat. § 893.13(1) cannot qualify as a serious drug
offense under the ACCA because the state offense lacks a mens
rea element is foreclosed by our precedent in Smith and the Su-
preme Court’s precedent in Shular. United States v. Smith, 983
F.3d 1213, 1223 (11th Cir. 2020).
Here, Hameen’s challenge that his Florida drug convictions
under Fla. Stat. § 893.13 do not qualify as controlled substance of-
fenses under the Guidelines or serious drug offenses under the
ACCA is foreclosed by our binding precedent in Smith. 4
4 Hameen filed additional briefing on this issue after the release of
United States v. Jackson, 36 F.4th 1294 (11th Cir. June 10, 2022) (“Jackson I”),
where we held that certain Florida cocaine-related offenses, like Hameen’s
2008 conviction under Fla. Stat. § 893.13(a)(1) for sale or delivery of cocaine,
are not “serious drug offense[s]” under the ACCA because they include a
substance, namely ioflupane, that is not included in the federal controlled
substances definition. However, this court vacated that opinion and then
issued a new opinion, 55 F.4th 846 (11th Cir. Dec. 12, 2022), cert. granted
2023 WL 3440568 (May 15, 2023) (“Jackson II”), where we held that “ACCA’s
definition of a state ‘serious drug offense’ incorporates the version of the fed-
eral controlled-substances schedules in effect when the defendant was con-
victed of the prior state drug offense.” Id. at 854. At the time of Hameen’s
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30 Opinion of the Court 19-14279
G. ACCA Enhanced Sentence
Generally, all elements of a crime must be alleged by in-
dictment and proven beyond a reasonable doubt. Smith, 775 F.3d
at 1266. However, the Supreme Court in Almendarez-Torres
carved out an exception for prior convictions, holding that the
government need not prove beyond a reasonable doubt that a de-
fendant had prior convictions or allege them in the indictment in
order to use those convictions to enhance a defendant’s sentence.
Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998); see
Apprendi v. New Jersey, 530 U.S. 466, 489–90 (2000) (declining to
revisit the exception in Almendarez-Torres). We have repeatedly
held that Almendarez-Torres forecloses the argument that an
ACCA enhancement was unconstitutionally applied because the
fact of a prior conviction was not alleged in the indictment or
proven to a jury. See, e.g., United States v. Deshazior, 882 F.3d
1352, 1358 (11th Cir. 2018); Smith, 775 F.3d at 1266. We have also
“repeatedly rejected the argument that judicially determining
whether prior convictions were committed on different occasions
from one another for purposes of the ACCA violates a defendant’s
2008 Florida cocaine conviction, both the Florida and federal controlled sub-
stances schedules included ioflupane.
This Jackson issue was raised by Hameen for the first time on appeal,
and even then only after both his initial and reply briefs were filed, thus rais-
ing issues of preservation or forfeiture. We need not decide the preserva-
tion/forfeiture issues because our Jackson II decision is binding and foreclos-
es Hameen’s new challenge based on the Jackson issue.
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19-14279 Opinion of the Court 31
Fifth and Sixth Amendment rights.” United States v. Dudley, 5
F.4th 1249, 1260–61 (11th Cir. 2021).
Here, Hameen’s argument that his ACCA-enhanced sen-
tence violates the Fifth and Sixth Amendments because the
ACCA’s requirements were not charged in the indictment or
proven to a jury beyond a reasonable doubt is foreclosed by the
Supreme Court’s decision in Almendarez-Torres and our binding
precedent applying Almendarez-Torres.
H. Consolidated Appeal
We consolidated Hameen’s pro se 2022 appeal (Appeal No.
22-12968) of two orders with his direct appeal. The 2022 appeal
challenges two orders: a magistrate judge’s August 1, 2022, order
denying his amended motion to appoint counsel and request for
an indicative ruling concerning whether Hameen should receive a
reduction in his sentence based on our June 10, 2022, decision in
United States v. Jackson (“Jackson I”), and the district court’s Au-
gust 17, 2022, order overruling Hameen’s objections to the magis-
trate judge’s order.
We grant the Government’s motion to dismiss this appeal.
The challenged orders did not constitute final postjudgment or-
ders because they did not resolve all of the issues raised in the
amended motion to appoint counsel that initiated the postjudg-
ment proceedings. In that motion, Hameen sought relief from his
sentence under Jackson I and counsel to help him obtain that re-
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32 Opinion of the Court 19-14279
lief. Shortly after filing that initial motion, he filed a related mo-
tion more explicitly seeking that relief—vacatur of the sentence
under Jackson—that was pending before this Court when
Hameen filed his notice of appeal. 5 The orders addressing only
the initial motion thus did not end the postjudgment proceedings.
See 28 U.S.C. § 1291; Mayer v. Wall St. Equity Grp., Inc., 672 F.3d
1222, 1224 (11th Cir. 2012); Thomas v. Blue Cross & Blue Shield
Ass’n, 594 F.3d 823, 829 (11th Cir. 2010). The orders were also
not appealable under the collateral order doctrine because the is-
sues raised in the amended motion to appoint counsel were capa-
ble of review after the district court issued a final postjudgment
order. 6 See Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th Cir.
2014); see also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424,
430-31 (1985) (stating that the collateral order doctrine is narrow,
and its “reach is limited to trial court orders affecting rights that
will be irretrievably lost in the absence of an immediate appeal”).
IX.
For the foregoing reasons, we affirm Hameen’s conviction
and sentence. We dismiss the consolidated appeal.
5 That is, appointed counsel had already filed a supplemental brief in
Hameen’s direct appeal seeking that same relief under the then-extant Jack-
son decision, 36 F. 4th 1294.
6 On March 20, 2023, the district court entered a final postjudgment
order denying an evidentiary hearing and vacatur of the sentence, as well as
several other related postjudgment motions.
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19-14279 Opinion of the Court 33
AFFIRMED in part, DISMISSED in part. 7
7 All pending motions are DENIED.
United States v. Jamaal A. Hameen
Combined Opinion