United States v. Sergio Antonio Hood

USCA11 Case: 21-13903    Document: 65-1      Date Filed: 02/21/2024   Page: 1 of 26




                                                [DO NOT PUBLISH]


                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 21-13903
                           Non-Argument Calendar
                           ____________________

        UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,
        versus
        SERGIO ANTONIO HOOD,


                                                    Defendant-Appellant.


                           ____________________

                  Appeal from the United States District Court
                        for the Middle District of Florida
                   D.C. Docket No. 8:20-cr-00383-CEH-AEP-1
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        2                      Opinion of the Court                 21-13903

                             ____________________

        Before WILSON, LUCK, and LAGOA, Circuit Judges.
        PER CURIAM:
               Sergio Hood appeals his convictions and total 262-month
        sentence for possession of ammunition by a felon, obstruction of
        justice, and tampering with a witness. He argues that the district
        court’s determinations related to his prior convictions were error
        and, ultimately, that his conviction and sentence are unconstitu-
        tional. For the reasons discussed below, we affirm.
             I.     FACTUAL & PROCEDURAL BACKGROUND
               A federal grand jury returned a three-count indictment
        against Hood, charging him with: possession of ammunition by a
        felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count
        One); obstruction of justice, in violation of 18 U.S.C. §§ 1503 and 2
        (Count Two); and tampering with a witness, in violation of 18
        U.S.C. §§ 1512(b)(2) and 2 (Count Three). As support for Count
        One, the indictment listed Hood’s prior federal convictions for pos-
        session of firearms as a felon and distribution of controlled sub-
        stances, and his prior Florida state conviction for lewd or lascivious
        battery.
              Prior to trial, the government filed a motion in limine to ad-
        mit evidence related to Hood’s prior federal gun convictions to
        support the felon in possession charge. Specifically, the govern-
        ment sought to admit, among other things, certified records of
        Hood’s prior conviction for two counts of possession of a firearm
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        21-13903               Opinion of the Court                          3

        by a felon, in violation of 18 U.S.C. § 922(g), to prove his felon sta-
        tus, and a copy of the same records, signed by Hood, to prove that
        he knew of his status. The government argued that, even if Hood
        stipulated to his prohibited-person status, the evidence was still ad-
        missible under Federal Rule of Evidence 404(b). It noted that,
        while the Supreme Court in Old Chief v. United States, 519 U.S. 172
        (1997), held that a defendant must be permitted to stipulate to the
        prior offense without identifying the nature of the underlying of-
        fense when the sole purpose of the evidence is to prove the element
        of prior conviction, Rule 404(b) guarantees the opportunity to seek
        admission of prior conviction evidence with multiple utility. The
        government asserted that the prior conviction evidence was admis-
        sible because it was relevant to an issue other than Hood’s charac-
        ter, the records could prove that he committed the acts, and the
        significant probative value was not outweighed by undue preju-
        dice.
               Hood opposed the admission of this evidence. He argued
        that the probative value of the evidence was substantially out-
        weighed by its unfair prejudice and that the admission would have
        a substantial and injurious effect on the jury verdict, such that this
        evidence needed to be excluded under Federal Rule of Evidence
        403.
              The district court held a hearing on the motion. The court
        determined that the evidence was admissible for the purpose ar-
        gued by the government and that Rehaif v. United States, 139 S. Ct.
        2191 (2019), “add[ed] the distinct requirement . . . of establishing
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        4                      Opinion of the Court                  21-13903

        [Hood’s] knowledge.” Noting that this Circuit had affirmed the
        admission of prior gun‑related convictions to prove the knowledge
        element, the district court determined that the evidence was ad-
        missible at trial with specific redactions and a limiting jury instruc-
        tion.
                Hood proceeded to trial. During jury selection, the court
        determined that the nature of Hood’s prior felony conviction for
        lewd and lascivious battery was inadmissible but followed its pre-
        trial ruling regarding his prior gun-related convictions. The court
        read Count One to the prospective jurors, stating that Hood
        “knowing that he had previously been convicted in a court of a
        crime punishable by imprisonment for a term exceeding one year
        including possession of firearms as a convicted felon and distribu-
        tion of controlled substances . . . did knowingly possess . . . ammu-
        nition.” During voir dire, the government asked jurors if they could
        follow the court’s limiting instructions as to the prior convictions
        evidence and consider the evidence only for its proper purpose.
        One prospective juror stated that it might affect their judgment but
        agreed that they would probably be able to overcome the prejudice
        during deliberations. Multiple other prospective jurors stated that
        the knowledge that Hood was previously convicted of a crime in-
        volving firearms would make them more likely to believe that he
        would commit another firearm crime.
               The government stated its intention to introduce Hood’s
        prior firearm possession and drug distribution convictions as im-
        peachment evidence against Hood, should he testify. Hood then
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        21-13903               Opinion of the Court                         5

        testified on his own behalf. Factually, he denied possessing a gun
        and stated that he was at his brother’s house watching sports when
        the alleged shooting occurred. However, cell phone records
        showed that Hood left his brother’s home before the shooting oc-
        curred. As to his felon status, Hood testified that he had been con-
        victed of two gun charges and three drug charges. He stated, “I
        have nothing illegal, no guns, no drugs, no nothing. I’m already
        on probation for that so I know I’m prohibited of having those
        things.” Testimony from Hood’s U.S. Probation Officer and certi-
        fied records of Hood’s convictions admitted into evidence con-
        firmed that, at the time of the shooting, Hood was on supervised
        release for two counts of possession of a firearm by a felon.
                Tampa Police Department Detective Daniel Romonosky
        testified that, following the incident, Hood was arrested and held
        in state custody for about a year, until he was transferred to federal
        custody for his supervised release revocation hearing. He testified
        that, while in custody, Hood called his brother multiple times, us-
        ing different inmates’ pin numbers, to discuss his alibi that they had
        been together at the time of the shooting. Before jury delibera-
        tions, the district court instructed the jury:
                     During the trial, you heard evidence of acts al-
              legedly done by the Defendant on other occasions
              that may be similar to acts with which the Defendant
              is currently charged. You must not consider any of
              this evidence to decide whether the Defendant en-
              gaged in the activity alleged in the indictment. This
              evidence is admitted and may be considered by you
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        6                         Opinion of the Court                     21-13903

               in determining whether the Defendant had the state
               of mind or intent necessary to commit the crime
               charged in the indictment and whether the Defendant
               had a motive or the opportunity to commit the acts
               charged in the indictment.
               At the end of the six-day trial, the jury found Hood guilty on
        all three counts. The U.S. Probation Office generated Hood’s
        presentence investigation report (“PSI”). The PSI grouped Counts
        Two and Three in accordance with U.S.S.G. § 3D1.2(a), then
        grouped Counts Two and Three with Count One in accordance
        with § 3D1.2(c). The PSI calculated an offense level of 20 in accord-
        ance with U.S.S.G. § 2K2.1(a)(4)(A), based on the determination
        that Hood was previously convicted of three counts of distribution
        of methylenedioxymethamphetamine (“MDMA”), a controlled
        substance offense. Probation then applied: (1) a four-level enhance-
        ment, under § 2K2.1(b)(6)(B), because Hood possessed ammuni-
        tion in connection with another felony offense1; and (2) a two-level
        adjustment, under U.S.S.G. § 3C1.1, for obstruction of justice. The
        resulting adjusted offense level was 26.




        1 Hood was charged in Hillsborough County Circuit Court with aggravated

        assault with a deadly weapon (Count 1) and shooting at or within a vehicle
        (Count 2) for the offense conduct in this case. But Count 1 was dismissed, and
        Count 2 was pleaded down to a lesser included offense of trespass in an occu-
        pied structure. References throughout the PSI to the offense conduct being in
        connection with “another felony offense” or “crime of violence” refer to these
        charges.
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        21-13903               Opinion of the Court                         7

                Additionally, the PSI determined that Hood qualified as an
        armed career criminal under U.S.S.G. § 4B1.4 because he had at
        least three prior convictions for a violent felony or serious drug of-
        fense, committed on occasions different from one another. This
        classification was based on Hood’s convictions for: (1) distribution
        of MDMA on March 1, 2011, in violation of 21 U.S.C. § 841(a)(1)
        and (b)(1)(C); (2) distribution of MDMA on March 2, 2011, in vio-
        lation of § 841(a)(1) and (b)(1)(C); and (3) distribution of MDMA on
        June 21, 2011, in violation of §§ 841(a)(1), (b)(1)(C) and 2. The PSI
        determined that the application of the armed career criminal en-
        hancement resulted in a total offense level of 34 because Hood pos-
        sessed ammunition in connection with aggravated assault with a
        deadly weapon, a crime of violence.
               The PSI then detailed Hood’s criminal history. It listed
        Hood’s prior convictions, which included petit theft, lewd and las-
        civious battery, distribution of MDMA, possession of a firearm by
        a felon, and trespass. Based on his convictions, the PSI calculated
        an initial criminal history score of six but added two points, see
        U.S.S.G. § 4A1.1(d), because Hood committed the instant offense
        while on supervised release. A total criminal history score of eight
        yielded a criminal history category of IV. However, the PSI as-
        signed a criminal history category of VI under § 4B1.4(c)(2) because
        of Hood’s armed career criminal status and because he possessed
        the ammunition in connection with a crime of violence. Hood’s
        total offense level of 34 and a criminal history category VI yielded
        a guideline range of 262 to 327 months’ imprisonment.
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        8                          Opinion of the Court                        21-13903

                In his objections to the PSI, Hood objected, in relevant part,
        to the application of the Armed Career Criminal Act (“ACCA”), 18
        U.S.C. § 924(e). Specifically, he argued that the imposition violated
        the Fifth and Sixth Amendments because the requirements were
        not charged in the indictment nor proven to a jury beyond a rea-
        sonable doubt. He also objected to the PSI’s reliance on non-Shep-
        ard 2 approved documents. Hood also objected to the classification
        of his prior convictions under 18 U.S.C. § 2 as ACCA predicate “se-
        rious drug offense[s]” because § 2 offenses are not included in the
        statutory definition. He objected to the classification of his predi-
        cate conviction, which consisted of three separate counts, as being
        three predicate offenses “committed on occasions different from
        one another,” arguing that the determination erroneously relied on
        non-elemental facts. Finally, he challenged the ACCA’s “occasions
        clause” as void for vagueness.
               The government filed a sentencing memorandum in re-
        sponse to Hood’s objections and in support of its sentencing rec-
        ommendation. In relevant part, the government contended that
        the ACCA need not be set forth in the indictment nor proved be-
        yond a reasonable doubt because it is a sentencing enhancement
        provision, not a distinct offense. Next, it argued that Hood’s prior
        convictions were supported by the Shepard-permissible indictment,

        2 Shepard v. United States, 544 U.S. 13, 26 (2005) (referring to “the terms of the

        charging document, the terms of a plea agreement or transcript of colloquy
        between judge and defendant in which the factual basis for the plea was con-
        firmed by the defendant, or to some comparable judicial record of this infor-
        mation”).
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        21-13903               Opinion of the Court                         9

        plea colloquy, and undisputed facts from the PSI from his prior fed-
        eral case. Third, the government argued that Hood’s § 2 argument
        was a misunderstanding of his prior convictions, as § 2 does not
        define a crime and Hood was principally liable for all three counts.
        Fourth, responding to Hood’s “occasions clause” argument, the
        government contended that Hood’s prior convictions were all tem-
        porally distinct, i.e., successive rather than simultaneous, and thus
        committed on different occasions. Finally, the government argued
        that the application of the ACCA in Hood’s case did not violate the
        Fifth or Sixth Amendments. To support its contentions, the gov-
        ernment submitted alongside its memorandum: (1) the certified
        judgment; (2) the transcript of the guilty plea hearing; (3) the tran-
        script of the sentencing hearing; and (4) the indictment from
        Hood’s prior convictions for three counts of distribution of
        MDMA.
               Hood then filed a sentencing memorandum, in which he
        briefly reasserted his arguments that he should not be classified as
        an armed career criminal, and that his sentence should be limited
        accordingly.
              The district court addressed Hood’s objections at sentenc-
        ing. The district court overruled Hood’s objection arguing that the
        government needed to allege the ACCA violations in the indict-
        ment, finding that this Court’s precedent did not require such.
        The court then determined that Hood’s prior convictions were
        supported by Shepard-approved documents, and relying on these
        documents, determined that Hood’s prior convictions were three
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        10                     Opinion of the Court                21-13903

        separate, temporally distinct offenses that qualified Hood as an
        armed career criminal under the ACCA. The court next overruled
        Hood’s § 2 objection to the ACCA, determining that, although
        Hood pleaded guilty to aiding and abetting in addition to his drug
        distribution charges, this did not disqualify the convictions as
        ACCA predicates. The court then overruled Hood’s Fifth and Sixth
        Amendment objections because this Court’s caselaw foreclosed the
        arguments.
               The district court imposed a total sentence of 262 months’
        imprisonment, consisting of 262 months on Count 1, 120 months
        on Count 2, and 240 months on Count 3, to run concurrently, and
        a five‑year term of supervised release. This appeal ensued.
                               II.    DISCUSSION
                 On appeal, Hood argues that: (1) the district court erred in
        admitting evidence of his prior felon-in-possession convictions at
        trial; (2) 18 U.S.C. § 922(g)(1) violates the Commerce Clause, both
        facially and as applied; (3) his sentence should be vacated and re-
        manded in light of the Supreme Court’s decision in Wooden v.
        United States, 595 U.S. 360 (2022), and because the ACCA sentenc-
        ing enhancement violates the Fifth and Sixth Amendments since
        the “occasions different” requirement was neither charged in the
        indictment, nor found by the jury; and (4) the district court erred
        in determining that Hood’s convictions under 18 U.S.C. § 2 quali-
        fied as “serious drug offenses” because it is not among the statutes
        listed in the ACCA’s definition. We address these arguments in
        turn.
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        21-13903               Opinion of the Court                         11

               A.     The Admission of Hood’s Prior Convictions
                We review the admission of evidence under Federal Rule of
        Evidence 404(b) for abuse of discretion. United States v. Culver, 598
        F.3d 740, 747 (11th Cir. 2010). “If a reviewing court finds that a
        district court has abused its discretion in admitting evidence in vi-
        olation of Rule 404(b), then its decision to uphold the conviction is
        properly reviewed under a harmless error standard.” United States
        v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998). Under that standard,
        “[r]eversal is warranted ‘only if [the error] resulted in actual preju-
        dice because it had substantial and injurious effect or influence in
        determining the jury’s verdict.’” United States v. Phaknikone, 605
        F.3d 1099, 1109 (11th Cir. 2010) (second alteration in original)
        (quoting United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.
        1999)). “Overwhelming evidence of guilt is one factor that may be
        considered in finding harmless error.” Id. (quoting Guzman, 167
        F.3d at 1353).
               Rule 404(b) prohibits the introduction of evidence of “a
        crime, wrong, or other act” to “prove a person’s character in order
        to show that on a particular occasion the person acted in accord-
        ance with the character.” It does, however, allow such evidence
        for other purposes, “such as proving motive, opportunity, intent,
        preparation, plan, knowledge, identity, absence of mistake, or lack
        of accident.” Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of in-
        clusion, and accordingly 404(b) evidence, like other relevant evi-
        dence, should not be lightly excluded when it is central to the pros-
        ecution’s case.” United States v. Kapordelis, 569 F.3d 1291, 1313 (11th
        Cir. 2009) (alteration adopted) (quoting United States v. Jernigan, 341
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        12                     Opinion of the Court                  21-13903

        F.3d 1273, 1280 (11th Cir. 2003), abrogated in part on other grounds by
        Rehaif v. United States, 139 S. Ct. 2191 (2019)).
               We recognize a three-part test to determine whether evi-
        dence is admissible under Rule 404(b): (1) the evidence must be rel-
        evant to an issue other than the defendant’s character; (2) there
        must be sufficient proof that a jury could find by a preponderance
        of the evidence that the defendant committed the act; and (3) the
        probative value of the evidence must not be substantially out-
        weighed by undue prejudice, as established in Federal Rule of Evi-
        dence 403. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.
        2007).
                The first prong of the Rule 404(b) test can be satisfied “where
        the state of mind required for the charged and extrinsic offenses is
        the same.” Id. at 1345. “[B]y pleading not guilty, [a defendant]
        place[s] th[e] [knowledge] element of the § 922(g) offense in issue.”
        Jernigan, 341 F.3d at 1281 n.7. This Court has held that a prior con-
        viction in which the defendant possessed a gun provides a “logical
        connection between a convicted felon’s knowing possession of a
        firearm at one time and his knowledge that a firearm is present at
        a subsequent time (or, put differently, that his possession at the
        subsequent time is not mistaken or accidental).” Id. at 1281 (stating
        that a defendant’s prior offenses involving the knowing possession
        of a firearm “plainly bore” on the defendant’s knowledge that the
        gun was present in the charged instance).
              The third prong of the Rule 404(b) test consists of balancing,
        under Rule 403, the probative value of the evidence against its
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        21-13903               Opinion of the Court                        13

        prejudicial effect and requires the court to conduct the Rule 403 in-
        quiry based “upon the circumstances of the extrinsic offense.”
        Edouard, 485 F.3d at 1345 (quoting United States v. Dorsey, 819 F.2d
        1055, 1059 (11th Cir. 1987)). Rule 403 is an extraordinary remedy
        that courts should employ “only sparingly since it permits the trial
        court to exclude concededly probative evidence.” United States v.
        Smith, 459 F.3d 1276, 1295 (11th Cir. 2006) (quoting United States v.
        Norton, 867 F.2d 1354, 1361 (11th Cir. 1989)). Accordingly, we view
        the disputed evidence “in a light most favorable to its admission,
        maximizing its probative value and minimizing its undue prejudi-
        cial impact.” Id. (quoting United States v. Elkins, 885 F.2d 775, 784
        (11th Cir. 1989)).
                The risk of undue prejudice can be reduced by an appropri-
        ate limiting instruction. United States v. Ramirez, 426 F.3d 1344,
        1354 (11th Cir. 2005); see, e.g., United States v. Diaz-Lizaraza, 981
        F.2d 1216, 1225 (11th Cir. 1993) (noting that, where the district
        court issued a limiting instruction both at the presentation of the
        evidence and in its final charge to the jury, “any unfair prejudice
        possibly caused by its introduction was mitigated”). Indeed, a dis-
        trict court’s reticence and careful efforts “to preclude the admission
        of certain especially prejudicial aspects of” a prior conviction
        through limiting instructions are significant. See Jernigan, 341 F.3d
        at 1282.
               Section 922(g) governs offenses for unlawful possession of a
        firearm and ammunition and “entails three distinct elements: (1)
        that the defendant was a convicted felon; (2) that the defendant was
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        14                     Opinion of the Court                21-13903

        in knowing possession of a firearm; and (3) that the firearm was in
        or affecting interstate commerce.” Id. at 1279; § 922(g)(1). The
        Supreme Court has held that, in a prosecution under §§ 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.” Re-
        haif, 139 S. Ct. at 2200.
                In the § 922(g) context, the Supreme Court has held that “ev-
        idence of the name or nature of the prior offense generally carries
        a risk of unfair prejudice to the defendant.” Old Chief v. United
        States, 519 U.S. 172, 174–77, 185, 191 (1997). However, when prof-
        fered evidence “has the dual nature of legitimate evidence of an
        element and illegitimate evidence of character,” the court must de-
        termine “whether the danger of undue prejudice outweighs the
        probative value of the evidence in view of the availability of other
        means of proof.” Id. at 184.
               Hood argues that the district court committed fundamental
        and harmful error when, at trial, it granted the government’s mo-
        tion to admit evidence of his prior convictions under a Rule 404(b)
        exception to show that Hood had “knowledge” of his prohibited
        person status. He argues that the district court incorrectly deter-
        mined that Rehaif established a requirement for the court to allow
        evidence that the defendant knew of his prohibited person status
        or that he was prohibited from possessing the firearms, even when
        the defendant stipulated to that issue. Hood contends that, because
        he did not dispute knowledge of his status, the element was not at
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        21-13903               Opinion of the Court                        15

        issue in his case, and thus his prior crimes were unnecessary and
        only showed propensity. He also asserts that the court failed to
        follow Old Chief and should have allowed him to stipulate to his
        prohibited status in exchange for prohibiting the admission of the
        evidence. He contends that the district court’s limiting instruction
        to the jury could not cure undue prejudice. And he asserts that any
        probative value of the evidence was substantially outweighed by
        unfair prejudice.
               Here, the district court did not abuse its discretion in allow-
        ing Hood’s prior convictions into evidence because they were rel-
        evant to show his knowledge about Count One. By pleading not
        guilty to the charges, Hood made knowledge of possession of am-
        munition an issue in the case, regardless of his alibi defense and
        testimony that he was not present at the shooting. See Jernigan, 341
        F.3d at 1281 & n.7. As for Hood’s reliance on Old Chief, the Su-
        preme Court held that the district court abused its discretion by
        admitting a prior conviction record for the sole purpose of estab-
        lishing that the defendant was a convicted felon in order to satisfy
        the prior conviction element of § 922(g)(1), despite the defendant’s
        stipulation as to the conviction. See 519 U.S. at 174. Here, how-
        ever, Hood’s prior convictions were admitted for a separate evi-
        dentiary purpose, and Old Chief thus does not preclude their admis-
        sion. Id. Similarly, because the government’s burden to prove that
        Hood knew that he belonged to a category of persons prohibited
        from possessing a firearm is separate from its burden to prove that
        he knowingly possessed a firearm, his stipulation to the former
        does not bar the government’s introduction of evidence intended
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        16                      Opinion of the Court                   21-13903

        to satisfy the latter requirement. See Rehaif, 139 S. Ct. at 2200; Jer-
        nigan, 341 F.3d at 1279.
               The prior convictions’ probative value was also not “sub-
        stantially outweighed” by their prejudicial effect. Any risk of unfair
        prejudice to Hood was minimal due to the district court’s careful
        efforts to redact the conviction records, and any undue prejudice
        that resulted from the district court’s allowance of the prior con-
        victions was mitigated by the three limiting instructions that it gave
        to the jury. Accordingly, we affirm as to this issue.
              B.     The Constitutionality of 18 U.S.C. § 922(g)(1)
                For the first time on appeal, Hood argues that his conviction
        must be vacated because § 922(g)(1) is unconstitutional, both fa-
        cially and as applied, for exceeding congressional authority under
        the Commerce Clause. He contends that Congress is not permit-
        ted to criminalize the intrastate possession of ammunition simply
        because the ammunition crossed state lines at some time. Hood,
        however, acknowledges that his arguments here are foreclosed by
        this Court’s precedent, although he criticizes that precedent as be-
        ing based on a statutory interpretation decision that used a stand-
        ard well below the contemporary substantial effects test in United
        States v. Lopez, 514 U.S. 549 (1995).
                 Generally, we review the constitutionality of a statute de
        novo, as it is a question of law. United States v. Wright, 607 F.3d 708,
        715 (11th Cir. 2010). But if the issue is raised for the first time on
        appeal, we review for plain error only. Id. Plain error occurs only
        if (1) there was error, (2) it was plain, (3) it affected the defendant’s
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        21-13903               Opinion of the Court                         17

        substantial rights, and (4) it seriously affected the “fairness, integ-
        rity, or public reputation of judicial proceedings.” Id. (quoting
        United States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002)). Addi-
        tionally, the prior precedent rule requires us to follow a prior bind-
        ing precedent unless it is overruled by this Court en banc or by the
        Supreme Court. United States v. White, 837 F.3d 1225, 1228 (11th
        Cir. 2016). “To constitute an ‘overruling’ for the purposes of this
        prior panel precedent rule, the Supreme Court decision must be
        ‘clearly on point.’” United States v. Kaley, 579 F.3d 1246, 1255 (11th
        Cir. 2009) (quoting Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,
        344 F.3d 1288, 1292 (11th Cir. 2003)).
                “We have clearly held that § 922(g) is constitutional under
        the Commerce Clause.” United States v. Longoria, 874 F.3d 1278,
        1283 (11th Cir. 2017). We have also rejected as-applied challenges
        to § 922(g), holding that the government proves a “minimal nexus”
        to interstate commerce where it demonstrates that the firearms
        were manufactured outside of the state where the offense took
        place and, thus, necessarily traveled in interstate commerce. See
        Wright, 607 F.3d at 715–16. And we have specifically rejected con-
        stitutional challenges to § 922(g) under Lopez, concluding that
        “[n]othing in Lopez suggest[ed] that the ‘minimal nexus’ test should
        be changed.” United States v. McAllister, 77 F.3d 387, 390 (11th Cir.
        1996).
                Here, because Hood did not object on these grounds below,
        we review only for plain error. The district court did not plainly
        err in convicting Hood under § 922(g) because we have upheld the
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        18                      Opinion of the Court                  21-13903

        constitutionality of § 922(g) against both facial and as applied chal-
        lenges under the Commerce Clause, as Hood argues here. Thus,
        Hood’s challenge to the constitutionality of § 922(g) is foreclosed
        by the prior precedent rule, and we affirm as to this issue.
                C.     The Constitutionality of Hood’s Sentence
               We review constitutional challenges to a sentence de novo.
        Longoria, 874 F.3d at 1281. We also review de novo “whether prior
        offenses meet the ACCA’s different-occasions requirement.” Id.
               The ACCA states:
               In the case of a person who violates section 922(g) of
               this title and has three previous convictions by any
               court referred to in section 922(g)(1) of this title for a
               violent felony or a serious drug offense, or both, com-
               mitted on occasions different from one another, such
               person shall be fined under this title and imprisoned
               not less than fifteen years.
        18 U.S.C. § 924(e)(1). This provision “kicks in only if (1) a § 922(g)
        offender has previously been convicted of three [predicate felony
        offenses], and (2) those three felonies were committed on ‘occa-
        sions different from one another.’” Wooden, 595 U.S. at 368 (quot-
        ing § 924(e)). The government “must prove by a preponderance of
        the evidence, using ‘reliable and specific evidence,’ that the defend-
        ant’s prior convictions each ‘arose out of a separate and distinct
        criminal episode.’” United States v. McCloud, 818 F.3d 591, 595 (11th
        Cir. 2016) (citation omitted) (first quoting United States v. Almenida,
        686 F.3d 1312, 1315 (11th Cir. 2012); then quoting United States v.
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        21-13903               Opinion of the Court                       19

        Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010)). Only Shepard-ap-
        proved sources may be used to determine if prior offenses were
        committed on different occasions for ACCA purposes. Sneed, 600
        F.3d at 1333.
               Under the Fifth and Sixth Amendments, “[o]ther than the
        fact of a prior conviction, any fact that increases the penalty for a
        crime beyond the prescribed statutory maximum must be submit-
        ted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
        New Jersey, 530 U.S. 466, 490 (2000). Additionally, “when a defend-
        ant pleads guilty to a crime, he waives his right to a jury determi-
        nation of only that offense’s elements; whatever he says, or fails to
        say, about superfluous facts cannot license a later sentencing court
        to impose extra punishment.” Descamps v. United States, 570 U.S.
        254, 270 (2013).
                The Supreme Court addressed the correct approach for de-
        termining whether a state conviction qualifies as a predicate ACCA
        violent felony in Descamps and Mathis v. United States, 579 U.S. 500
        (2016). The Court emphasized the “elements-only” categorical ap-
        proach in making such a determination, noting that the considera-
        tion of non-elemental facts would require impermissible judicial
        fact-finding. Mathis, 579 U.S. at 510–12. And the Court specifically
        stated that an elements-centric approach was necessary to avoid
        Sixth Amendment concerns that would arise from sentencing
        courts’ making findings of fact that properly belong to juries—i.e.,
        whether the elements of the predicate convictions were proven be-
        yond a reasonable doubt. See Descamps, 570 U.S. at 267.
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        20                     Opinion of the Court                21-13903

                However, Descamps and Mathis focused solely on the predi-
        cate felony stage of the ACCA inquiry. United States v. Dudley, 5
        F.4th 1249, 1260 (11th Cir. 2021). “Unlike the predicate felony de-
        termination, which focuses solely on the statutory legal elements,
        the different-occasions inquiry necessarily ‘requires looking at the
        facts underlying the prior convictions.’” Id. (quoting United States
        v. Richardson, 230 F.3d 1297, 1299 (11th Cir. 2000)). We have “re-
        peatedly 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
        Fifth and Sixth Amendment rights.” Id. at 1260. Specifically, in
        Dudley, we held that “[n]either Descamps nor Mathis is clearly on
        point” to abrogate our existing precedent as to the occasions
        clause, “as neither case deals with the different‑occasions inquiry.”
        Id. at 1265. Accordingly, the district court may make such a deter-
        mination. Id. at 1259–60. However, in doing so, the district court
        “is limited to Shepard-approved sources, as only information found
        in such conclusive judicial records has gone through a validation
        process that comports with the Sixth Amendment.” Id. at 1259.
               We have rejected a defendant’s argument that the district
        court could consider only elemental facts—specifically, the dates of
        his prior convictions—contained in Shepard‑approved documents,
        because it was foreclosed by precedent. Longoria, 874 F.3d at 1283.
        In Longoria, a defendant pleaded guilty to unlawful possession of a
        firearm by a felon, and the district court sentenced him pursuant to
        the ACCA. Id. at 1280. The district court overruled his objections
        regarding the ACCA enhancement, finding that his three predicate
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        21-13903                Opinion of the Court                         21

        offenses occurred on “occasions different from one another” to
        qualify for a sentence enhancement under the ACCA. Id. On ap-
        peal, we held that the district court did not err in looking at the plea
        agreement and transcript from the change-of-plea hearing to deter-
        mine that those predicate convictions, charged in a single indict-
        ment, were temporally distinct. Id. at 1283; see also Dudley, 5 F.4th
        at 1260 (“[I]n determining whether a defendant’s prior convictions
        were committed on different occasions from one another, a district
        court may rely on ‘non-elemental facts’ contained in the Shepard-
        approved sources.”).
               In March 2022, the Supreme Court issued its decision in
        Wooden, interpreting the “different occasions” requirement. First,
        the Court noted that “[t]he Courts of Appeals have divided over
        the meaning of ACCA’s ‘occasions’ clause.” 595 U.S. at 365. It also
        identified our precedent as consistent with the Sixth Circuit’s “se-
        quentially rather than simultaneously” test. Id. at 365 & n.1. The
        Court concluded that treating each temporally distinct offense as
        its own occasion was inconsistent with the plain meaning of the
        word “occasion” and the legislative history of the ACCA. See id. at
        366–76. Rather, the inquiry of whether offenses occurred on dif-
        ferent occasions was more “multi-factored in nature” and required
        consideration of: (1) the timing of the offenses; (2) the proximity of
        location; and (3) the character and relationship of the offenses. Id.
        at 368–70. The Court clarified that offenses committed close in
        time, in an uninterrupted course of conduct, will often count as
        part of one occasion, whereas offenses separated by substantial
        gaps in time or significant events may not. See id. (stating “[t]iming
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        22                    Opinion of the Court                21-13903

        of course matters”). It added that, “[i]n many cases, a single fac-
        tor—especially of time or place—can decisively differentiate occa-
        sions” and that courts have “nearly always treated offenses as oc-
        curring on separate occasions if a person committed them a day or
        more apart.” Id. at 369–70.
               Thus, the Supreme Court reversed the Sixth Circuit’s judg-
        ment and concluded that the defendant’s commission of ten bur-
        glaries—on a single night at the same location, in a single uninter-
        rupted course of conduct, with each offense essentially identical
        and intertwined—was one criminal occasion for purposes of the
        ACCA. Id. at 370–71. However, the Supreme Court did not ad-
        dress whether the Sixth Amendment requires a jury, rather than a
        judge, to resolve whether the prior crimes occurred on a single oc-
        casion. Id. at 366 n.3.
               We first applied Wooden in United States v. Penn, 63 F.4th
        1305 (11th Cir. 2023). In Penn, we addressed whether the defend-
        ant’s cocaine distribution offenses committed thirty days apart “oc-
        curred on the same ‘occasion’ based on the ordinary meaning of
        the word.” Id. at 1318. Citing to the language in Wooden that clar-
        ified the significance of temporal proximity, we determined that
        “the answer [was] obvious”: the offenses “did not occur on the
        same occasion” because the similarities between the offenses
        “[could] not overcome the substantial gap in time.” Id. Penn also
        argued that under the Fifth and Sixth Amendments, a jury must
        find, or a defendant must admit, that two offenses occurred on sep-
        arate occasions. Id. However, because Penn did not preserve this
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        21-13903               Opinion of the Court                         23

        challenge below, we declined to resolve the issue on the merits,
        holding only that the defendant could not show plain error. Id.
               We decline to remand Hood’s case for resentencing. Hood’s
        predicate offenses were committed a day or more apart, and the
        temporal differences are sufficient to decisively differentiate the oc-
        casions. Additionally, Hood’s argument that the district court
        erred by relying on non-elemental facts is foreclosed by our prece-
        dent. Further, as we held in Dudley, the Supreme Court’s decisions
        in Mathis and Descamps did not abrogate our occasions clause prec-
        edent, i.e., that district courts may judicially determine whether
        prior convictions were committed on different occasions from one
        another for purposes of the ACCA. Because the Supreme Court
        expressly declined to reach this issue in Wooden, Dudley remains
        controlling precedent, and Hood’s Sixth Amendment challenge
        fails.
               Further, we reject Hood’s argument the ACCA’s occasions
        clause is not unconstitutionally vague. “To overcome a vagueness
        challenge, statutes must ‘give the person of ordinary intelligence a
        reasonable opportunity to know what is prohibited, so that he may
        act accordingly,’ and ‘must provide explicit standards for those
        who apply them.’” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n,
        558 F.3d 1301, 1310 (11th Cir. 2009) (quoting Grayned v. City of Rock-
        ford, 408 U.S. 104, 108 (1972)). The plain language of the ACCA;s
        occasions clause gives persons of ordinary intelligence fair notice
        that committing qualifying offenses on different occasions will
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        24                     Opinion of the Court                21-13903

        result in the sentencing enhancement, and it permits non‑arbitrary
        enforcement. Accordingly, we affirm as to this issue.
             D.     Hood’s Prior Convictions Under 18 U.S.C. § 2
               Hood also contends that the district court erroneously de-
        termined that his prior convictions under 18 U.S.C. § 2 qualify as
        “serious drug offenses” to support the ACCA enhancement. We
        review de novo whether a prior conviction qualifies as a serious drug
        offense for ACCA purposes. White, 837 F.3d at 1228.
               The ACCA defines a “serious drug offense” as, in relevant
        part, “an offense under the Controlled Substances Act (21 U.S.C.
        801 et seq.), the Controlled Substances Import and Export Act (21
        U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum
        term of imprisonment of ten years or more is prescribed by law.”
        § 924(e)(2)(A)(i). Section 841(a)(1) makes it unlawful to manufac-
        ture, distribute, dispense, or possess with intent to manufacture,
        distribute, or dispense a controlled substance, and § 841(b)(1)(C)
        creates a maximum penalty of twenty years’ imprisonment for
        such an offense.
               Hood argues that § 2—the federal aiding and abetting stat-
        ute—is not among those specific portions of the U.S. Code enu-
        merated in the ACCA’s definition of “serious drug offense.” He
        asserts that canons of statutory interpretation indicate that Con-
        gress did not intend for § 2 offenses to be “serious drug offenses”
        under the ACCA definition. Therefore, he argues, his prior convic-
        tions under § 2 cannot properly be “serious drug offenses,” and he
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        21-13903               Opinion of the Court                         25

        lacks the requisite number of predicate offenses to qualify for the
        ACCA enhancement and should be resentenced.
               Under § 2, whoever “aids, abets, counsels, commands, in-
        duces or procures” the commission of an offense, or “willfully
        causes” another to perform an act that would be an offense if per-
        formed by him, is punishable as a principal. Aiding and abetting,
        under § 2, “is not a separate federal crime, ‘but rather an alternative
        charge that permits one to be found guilty as a principal for aiding
        or procuring someone else to commit the offense.’” United States
        v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (quoting United States
        v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004)). In concluding
        that a Georgia conviction for aiding and abetting burglary qualified
        as a “violent felony” ACCA predicate offense, we have held that
        “an ostensible [ACCA] predicate crime is not deprived of that status
        merely because the conviction may have been based on conduct
        that aided and abetted the crime.” United States v. Coats, 8 F.4th
        1228, 1245 (11th Cir. 2021). We noted that, because every jurisdic-
        tion has expressly abrogated the distinction between principals and
        aiders and abettors, “[w]ere it otherwise, Congress would have en-
        acted a sentencing enhancement statute for which no prior crimi-
        nal conviction could ever serve as a predicate crime.” Id.
               We thus conclude that the district court did not err in classi-
        fying Hood’s § 2 convictions as “serious drug offense[s]” under the
        ACCA because, for ACCA predicate purposes, there is no distinc-
        tion between a person charged as a principal and a person charged
        as an aider and abettor. Therefore, we affirm as to this issue.
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        26                   Opinion of the Court               21-13903

                             III.   CONCLUSION
              For the foregoing reasons, we affirm Hood’s convictions and
        sentences.
              AFFIRMED.