United States v. Kenneth Everette Robinson, Jr.

Case: 16-15742 Date Filed: 08/22/2017 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 16-15742
Non-Argument Calendar
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D.C. Docket No. 5:15-cr-00042-WTH-PRL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH EVERETTE ROBINSON, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
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(August 22, 2017)

Before TJOFLAT, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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Kenneth Everette Robinson appeals his 180-month sentence, imposed at the

low end of his guideline range, after he pleaded guilty to one count of possession

of a firearm and ammunition by a felon, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) and (e)(1). Robinson first argues that we should either vacate and

remand his sentence to the district court, or apply the standard of review for

preserved error, because the court failed to properly elicit objections after imposing

his sentence, as required under Jones.1 Next, he argues that his ACCA-enhanced

sentence a violation of the Fifth and Sixth Amendments. Finally, he argues that his

conviction under 18 U.S.C. § 922(g)(1) is void because § 922(g) is unconstitutional

facially and as applied. After a careful review, we affirm.

A federal grand jury charged Robinson with being a felon in possession of a

firearm and ammunition. To support his felon status, the indictment listed four

Florida convictions, consisting of two sale and possession of cocaine convictions, a

possession of cocaine with the intent to sell conviction, and a possession of

1
The government contends that Robinson’s sentence appeal waiver precludes him from raising a
Jones-based challenge on appeal. See United States v. Jones, 899 F.2d 1097 (11th Cir. 1990)
overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en
banc). Although Robinson’s sentencing appeal waiver technically bars him from personally
raising the issue on appeal, the error at issue bears on our duty as an appellate court to determine
the appropriate standard of review, which we cannot do unless we review whether the district
court complied with the procedures this Court directed be followed in Jones. Thus we review,
on the basis of our independent reviewing authority, whether the district court violated this
Court’s instructions in Jones. See 18 U.S.C. § 3742(e) (setting forth the standards for an
appellate court to apply in reviewing a sentence).

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cannabis with the intent to sell conviction. Robinson signed a written plea

agreement that contained a sentence appeal waiver, preventing him from appealing

the sentence absent the applicability of one of the exceptions—his sentence

exceeds the statutory maximum or the applicable guidelines range, or if his

sentence violated the Eighth Amendment. At sentencing, the court noted that

neither Robinson nor the Government had many objections to the presentence

investigation report (PSI). The court then went on to note the four predicate

convictions supporting Robinson’s ACCA enhancement, at which time Robinson

objected to the cannabis offense being counted, while also acknowledging that its

exclusion would not affect Robinson’s ACCA enhancement. Lastly, the court

heard arguments on what Robinson’s suggested sentence should be, imposed a

sentence at the low end of the guidelines range and asked if there was anything

further that needed to be discussed. Both parties answered in the negative and the

hearing was adjourned. 2

II.

As a threshold matter, Robinson alleges that the district court erred by

failing to elicit objections, as required by Jones, following the imposition of his

sentence and that such an error requires remand.

2
Before Robinson told the court that nothing else needed to be addressed, the court did
grant Robinson’s request for his sentence be served at Coleman.
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A district court, after imposing a sentence, must provide parties an additional

opportunity to object to the court’s ultimate findings of fact, conclusions of law,

and the manner in which the sentence is pronounced. Jones, 899 F.2d at 1102.

“[W]hen a district court fails to elicit objections after imposing a sentence, we

normally vacate the sentence and remand to the district court to give the parties an

opportunity to present their objections. [But a] remand is unnecessary, however,

when the record on appeal is sufficient to enable review.” United States v.

Campbell, 473 F.3d 1345, 1347 (11th Cir. 2007) (per curiam). We have found that

“meaningful appellate review” was possible when claims raised on appeal were

discussed in the district court. See United States v. Cruz, 946 F.2d 122, 124 n.1

(11th Cir. 1991).

There is no exact language or procedure that a district court must follow to

comply with Jones. For example, in Brokemond, we concluded that the district

court’s statement, “I will hear from you,” which was made prior to imposing the

sentence, satisfied Jones. United States v. Brokemond, 959 F.2d 206, 210–11 (11th

Cir. 1992). There, the defendant’s guideline range had previously been announced

in open court and, following the court’s statement, the defendant gave argument on

the issue—requesting a sentence at the bottom of the guideline range and making a

plea that the court consider any mitigating circumstances. See id. We explained

that “[t]he opportunity to raise objection was offered prior to rather than

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immediately following the imposition of sentence. However, in this instance all

relevant sentencing considerations had been announced in open court and were

known to the parties and the opportunity for objections to be presented, passed on

and cured by the district court was adequate to satisfy Jones.” Id. at 211. But in

contrast, we have also held that the district court’s inquiry of whether there was

“anything further” after imposing the defendant’s sentence, where no objections

were made, was insufficient to satisfy Jones. United States v. Snyder, 941 F.2d

1427, 1428 (11th Cir. 1991) (per curiam).

Here, as in Brokemond, Robinson was given an opportunity to object to his

sentence before his sentence was imposed—the opportunity was just given prior to

the court imposing the sentence and after each relevant sentencing consideration

was announced in open court. See Brokemond, 959 F.2d at 210–11. However, the

facts in the instant case are also similar to those in Snyder, where the district court

only inquired whether there was “anything further,” after imposing the defendant’s

sentence, and the defendant did not respond with objections. Snyder, 941 F.2d at

1428. But regardless of whether the may be a technical violation of Jones, remand

is unnecessary, because the record is sufficient to enable “meaningful appellate

review” of the sentencing issues that Robinson now raises on appeal. See Cruz,

946 F.2d at 124 n.1, United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir.

2006) (per curiam). Accordingly, where applicable, we employ the standard of

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review used for preserved error to review the two issues challenging the ACCA-

enhanced sentence. Johnson, 451 F.3d at 1242.

III.

Next, Robinson argues that his sentence violates the Fifth and Sixth

Amendments because he was improperly sentenced under the ACCA, resulting in a

sentence that exceeds the statutory maximum. To support this argument, Robinson

first contends that his three prior Florida convictions for violating Fla. Stat. §

893.13, which were used to enhance his sentence, do not qualify as “serious drug

offenses.” He contends that although the text of the ACCA definition of “a serious

drug offense” does not include a mens rea requirement, looking at the

congressional intent reveals that the provision should be interpreted as requiring

that the defendant have knowledge of the illicit nature of the substance. Notably,

Robinson concedes that his argument is foreclosed by binding precedent but states

that he maintains the argument in case there is further review.

Pursuant to the ACCA, a person who violates 18 U.S.C. § 922(g)(1) and has

three previous convictions “for a violent felony or a serious drug offense, or both,

committed on occasions different from one another” will be subject to a mandatory

minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1). The ACCA

defines serious drug offenses as offenses under state law, “involving

manufacturing, distributing, or possessing with intent to manufacture or distribute,

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a controlled substance.” Id. § 924(e)(2)(A)(ii). Although generally a defendant

may appeal the ACCA enhancement, such an appeal can be waived. See United

States v. Phillips, 834 F.3d 1176, 1182–83 (11th Cir. 2016) (holding that the

defendant waived his right to challenge on appeal his armed career criminal status

based on his actions in the district court).

In light of Phillips, it is clear that Robinson has waived his challenge to his

armed career criminal status based on his actions before the district court. Like the

defendant in Phillips, Robinson “intentional[ly] relinquish[ed] or abandon[ed]” his

right to challenge his sentence under the ACCA by actively conceding that he

qualified as an armed career criminal. Id. at 1183 (internal quotation marks

omitted). Like the defendant in Phillips, Robinson pleaded guilty to violating the

ACCA and signed a plea agreement that stated that he understood and

acknowledged that he must receive the 15-year statutory minimum. Id. His lawyer

affirmatively asked that he receive the 15-year statutory minimum and failed to

object to the PSI paragraphs listing his ACCA-qualifying convictions. Id.

“[W]hen a defendant waives an argument in the district court, we cannot review it

at all because no error occurred in the first place.” Id. (internal quotation marks

omitted) (emphasis omitted).

But Robinson asserts that his sentence violates the Fifth and Sixth

Amendments for another reason. He also contends that the ACCA enhancement

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caused him to be sentenced above the 10-year statutory maximum applicable to a

non-enhanced § 922(g) conviction, even though certain elements of the ACCA

enhancement—like whether his predicate offenses qualified as “serious drug

offenses” and whether they were committed on separate occasions—were not

charged in the indictment or found by a jury. Although Robinson acknowledges

that in, Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), the

Supreme Court held that a prior conviction is not required to be found by a jury, he

contends that the questions of whether offenses qualify as serious drug offenses or

whether they were committed on different occasions go beyond the elements of a

prior offense and thus are not included in the Alleyne exception.

In Smith, a defendant made a similar argument when he asserted that it was

unconstitutional for the district court to use his prior convictions to increase his

statutory maximum sentence pursuant to the ACCA, because his prior convictions

were not alleged by indictment. United States v. Smith, 775 F.3d 1262, 1265–66

(11th Cir. 2014). We rejected Smith’s argument, stating that although generally

“all elements of a crime must be alleged by indictment and either proved beyond a

reasonable doubt or admitted by a defendant, there is an exception for prior

convictions.” Id. at 1266. We held that neither the Fifth nor Sixth Amendments

require the government to allege in its indictment or prove to a jury beyond a

reasonable doubt a defendant’s prior convictions in order for the offenses to be

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used to designate him an armed career criminal. Id. at 1266. And we specifically

stated that this holding was not overruled by the Supreme Court’s decision in

Alleyne. Id. Therefore, Smith forecloses Robinson’s argument.

IV.

Finally, Robinson argues for the first time on appeal that his conviction

should be vacated because 18 U.S.C. § 922(g) is unconstitutional, facially and as

applied. He contends that § 922(g) is facially unconstitutional because the statute

exceeds Congress’s scope of authority under the Commerce Clause by failing to

require that possession of a firearm “substantially affect” interstate commerce.

And he contends that it is unconstitutional as applied to his conviction because the

government did not proffer any facts that established a substantial basis between

his possession of weapons and interstate commerce. Robinson concedes that his

arguments are “currently foreclosed” by precedent, but states that he seeks to

preserve the issue for further review.

We review constitutional challenges raised for the first time on appeal for

plain error. See United States v. McKinley, 732 F.3d 1291, 1295–96 (11th Cir.

2013) (per curiam). Under plain error review, we have discretion to correct an

error where (1) an error occurred, (2) the error was plain, (3) the error affected

substantial rights, and (4) “the error seriously affects the fairness, integrity or

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public reputation of judicial proceedings.” Id. at 1296 (internal quotation marks

omitted).

“The constitutionality of the [statute] . . . under which [a] defendant[] w[as]

convicted[] is a jurisdictional issue that [a] defendant[] d[oes] not waive upon

pleading guilty.” United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011).

But we have held that an as-applied constitutional challenge that is based on the

sufficiency of the government’s evidence on the connection-with-commerce

element is nonjurisdictional and is thus waived by the guilty plea. See United

States v. Cunningham, 161 F.3d 1343, 1346 n.2 (11th Cir. 1998).

We have repeatedly rejected the argument that § 922(g)(1) is an

unconstitutional exercise of Congress’s power under the Commerce Clause, either

on the face of the statute or as-applied. See United States v. Scott, 263 F.3d 1270,

1273 (11th Cir. 2001) (per curiam) (holding that “the jurisdictional 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”) (internal quotation marks omitted); United States v. Dupree, 258 F.3d

1258, 1259–60 (11th Cir. 2001) (rejecting the argument that § 922(g)(1) is

unconstitutional, both facially and as-applied, because Congress exceeded its

authority under the Commerce Clause in passing the statute); United States v.

Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997) (per curiam) (same); United States

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v. McAllister, 77 F.3d 387, 389–90 (11th Cir. 1996) (holding that as long as the

weapon in question has a “minimal nexus” to interstate commerce, § 922(g) is

constitutional).

We have also held that § 922(g)(1) was not unconstitutional as applied to a

defendant who only possessed a firearm intrastate because “§ 922(g) is an attempt

to regulate guns that have a connection to interstate commerce.” McAllister, 77

F.3d at 390. If “the government demonstrate[s] that the firearm [in question]

previously had traveled in interstate commerce, the statute is not unconstitutional

as applied.” Id.; see also Dupree, 258 F.3d at 1260 (holding that brandishing a

firearm that was manufactured in another state suffices to establish the required

“minimal nexus to interstate commerce”). And that is the scenario in the instant

case. Here the government established, through the factual basis of the plea

agreement, that the firearm and ammunition involved in Robinson’s offense were

manufactured outside of Florida, the state in which the offense took place, thus the

firearm and ammunition would have had to travel in and affect interstate

commerce. Accordingly, Robinson’s claim is plainly without merit and we affirm.

AFFIRMED.