Case: 16-10452 Date Filed: 01/09/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10452
________________________
D.C. Docket No. 8:15-cr-00250-RAL-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEANTE DIXON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 9, 2018)
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and BARTLE, * District
Judge.
*
Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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PER CURIAM:
In 2015, Deante Dixon pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court
enhanced his base offense level after concluding that two prior Florida robbery
offenses of which he had been convicted were “crimes of violence” under the
United States Sentencing Guidelines. Dixon now appeals, arguing that Florida
robbery is not a crime of violence. He also asserts that 18 U.S.C. § 922(g) is
unconstitutional because it exceeds Congress’s authority under the Commerce
Clause.1
I.
On June 16, 2015, in Pinellas County, Florida, Dixon was found in
possession of a firearm and ammunition manufactured outside of Florida. Dixon
was already a convicted felon—he had two Florida robbery convictions in 2008—
so a grand jury indicted him under 18 U.S.C. § 922(g) for being a felon who
“knowingly possess[ed], in and affecting interstate and foreign commerce, a
firearm and ammunition . . . .” Dixon pled guilty to the charge on November 12,
2015.
In the Presentence Investigation Report (“PSR”), the United States Probation
1
Dixon acknowledges that this argument is foreclosed by binding precedent but seeks to
preserve the issue so he can raise it before the Supreme Court.
2
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Office recommended that Dixon’s base offense level be enhanced to 20 because of
his past robbery convictions, which it characterized as crimes of violence under the
Guidelines.2 Dixon objected to the characterization of Florida robbery as a crime
of violence, but the district court adopted Probation’s recommendation and
enhanced the base offense level. The court also adopted Probation’s
recommendation for a three-level decrease because Dixon accepted responsibility.
With a base offense level of 17 and a criminal history category of VI, the
Guidelines range was 51 to 63 months’ imprisonment. The district court ultimately
sentenced Dixon to 60 months of imprisonment and 3 years of supervised release.
II.
The United States Sentencing Guidelines provide for a sentence
enhancement if a defendant has previously sustained a felony conviction for a
crime of violence. U.S. Sentencing Guidelines Manual. § 2K2.1(a)(4) (U.S.
Sentencing Comm’n 2015). The Guidelines define “crime of violence,” in turn, as
follows:
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
2
In this opinion, we refer exclusively to the 2015 Guidelines Manual, which was in
effect when Dixon was sentenced.
3
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(2) is burglary of a dwelling, arson, or extortion, involved
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.
Id. § 4B1.2(a). In addition to this definition, the Guidelines commentary lists
several offenses that constitute crimes of violence, including robbery. Id. § 4B1.2
cmt. n.1. Thus, a prior conviction constitutes a crime of violence if it (1) has as an
element the use, attempted use, or threatened use of force (commonly referred to as
the elements clause), (2) involves conduct that presents a serious potential risk of
physical injury to another (commonly referred to as the residual clause), or (3) is
enumerated as a crime of violence in the Guidelines or its commentary. United
States v. Lockley, 632 F.3d 1238, 1241 (11th Cir. 2011).
Dixon argues that Florida robbery 3 is not a crime of violence under any of
these three definitions. He recognizes that this court held the opposite in Lockley,
632 F.3d at 1246, but asserts the Lockley has been undermined to the point of
abrogation by three Supreme Court cases: Descamps v. United States, 570 U.S. __,
133 S. Ct. 2276 (2013), Mathis v. United States, 136 S. Ct. 2243 (2016), and
3
Florida’s robbery statute at the time of Dixon’s convictions provided:
Robbery means the taking of money or other property which may
be the subject of larceny from the person or custody of another,
with intent to either permanently or temporarily deprive the person
or the owner of the money or other property, which in the course of
the taking there is the use of force, violence, assault, or putting in
fear.
Fla. Stat. § 812.13(1) (2008). This is the same version of the statute at issue in Lockley.
4
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Johnson v. United States, 135 S. Ct. 2551 (2015).
Dixon’s argument is foreclosed by precedent. First, Johnson cannot save
Dixon from the residual clause of U.S.S.G. § 4B1.2(a)(2). Just this year, in
Beckles v. United States, 137 S. Ct. 886 (2017),4 the Supreme Court concluded that
Johnson’s holding does not apply to the residual clause of the Guidelines because
the Guidelines cannot be unconstitutionally vague.
As for Mathis and Descamps, we have reaffirmed the viability of Lockley in
the aftermath of those cases. In United States v. Fritts, 841 F.3d 937, 938-42 (11th
Cir. 2016), this Court relied on Lockley to conclude that a defendant’s robbery
conviction qualified as a violent felony under the elements clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), which uses language identical to
that in U.S.S.G. § 4B1.2(a)(1). See also United States v. Burke, 863 F.3d 1355,
1360 (11th Cir. 2017) (appellant’s argument that Florida robbery is not crime of
violence foreclosed by Fritts and Lockley). So we continue to be bound by
Lockley’s conclusion that Florida robbery is a crime of violence under the
Guidelines. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)
(“[A] prior panel’s holding is binding on all subsequent panels unless and until it is
overruled or undermined to the point of abrogation by the Supreme Court or by
this court sitting en banc.”).
4
Beckles was issued in March 2017, after the parties submitted their briefs in this case.
5
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III.
In the proceedings below, Dixon was convicted under 18 U.S.C. § 922(g)
because he was found in Florida to be in possession of a firearm that was
manufactured outside of Florida. Under Section 922(g), it is unlawful for any
person with a felony conviction to possess a firearm or ammunition “in or affecting
commerce.” 18 U.S.C. § 922(g). Congress’s authority to establish this law is
grounded in the Commerce Clause, which allows Congress to regulate the channels
of interstate commerce, the instrumentalities of interstate commerce, and any
activity that substantially affects interstate commerce. United States v. Lopez, 514
U.S. 549, 558-59 (1995).
On appeal, Dixon argues that Section 922(g) exceeds Congress’s Commerce
Clause power both facially and as-applied because “possession—a non-economic
activity—. . . does not ensure that this activity ‘substantially affects’ interstate
commerce.” This is not the first time we have considered this argument. On the
contrary, it is well-settled that Section 922(g) “is not constitutionally invalid under
the Commerce Clause.” United States v. Wright, 607 F.3d 708, 715 (11th Cir.
2010); see also United States v. McAllister, 77 F.3d 387, 391 (11th Cir. 1996)
(Section 922(g) “is not an unconstitutional exercise of Congress's power under the
Commerce Clause.”). Noting this precedent, the court below did not err by
entering Dixon’s conviction under Section 922(g).
6
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IV.
Because binding precedent precludes Dixon’s challenge to the district
court’s crime-of-violence determination and his challenge to the constitutionality
of 18 U.S.C. § 922(g), we affirm.
AFFIRMED.
7