United States v. Carey Dowis ( 2016 )

Case: 15-10988 Date Filed: 02/18/2016 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10988
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cr-00030-RWS-JCF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CAREY DOWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 18, 2016)
Before WILSON, WILLIAM PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
Case: 15-10988 Date Filed: 02/18/2016 Page: 2 of 5
Carey Dowis appeals his conviction and the sentence imposed after he was
found guilty of one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Dowis argues that (1) § 922(g)(1) is an
unconstitutional infringement of his Second Amendment right to bear arms for
purposes of self-defense, and (2) his sentence constitutes cruel and unusual
punishment under the Eighth Amendment. After thorough review of the parties’
briefs, we conclude that both the statute and Dowis’s sentence are constitutional.
Accordingly, we affirm.
I
The United States indicted Dowis for knowingly possessing a firearm in or
affecting interstate commerce after having been convicted of a crime punishable by
more than one-year imprisonment, in violation of 18 U.S.C. § 922(g)(1). Dowis
moved to dismiss the indictment on grounds that § 922(g)(1) violated the Second
Amendment because it failed to distinguish between prior convictions for violent,
versus non-violent, felonies. The magistrate judge prepared a Report and
Recommendation (R&R) that recommended Dowis’s motion be denied in light of
United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (per curiam), in which
we held that § 922(g)(1) does not violate the Second Amendment. Dowis objected
to the R&R on grounds that District of Columbia v. Heller, 54 U.S. 570, 128 S. Ct.
2783 (2008), disallowed the court from abrogating his Second Amendment rights.
2
Case: 15-10988 Date Filed: 02/18/2016 Page: 3 of 5
The district court adopted the R&R, overruled Dowis’s objection, and
denied Dowis’s motion to dismiss. After a bench trial premised on stipulated
facts—including, in relevant part, that Dowis possessed the firearms as charged,
they had been transported across state lines, and Dowis had previously been
convicted of two felonies—the court entered an order finding Dowis guilty.
Following a hearing, the district court sentenced Dowis to 30-months
imprisonment with three years of supervised release to follow, which reflected a
downward variance from the advisory range under the United States Sentencing
Guidelines.
II
Dowis argues that § 922(g)(1) violates the Second Amendment and his
sentence violates the Eighth Amendment. We review challenges to the
constitutionality of a statute or a sentence de novo. Rozier, 598 F.3d at 770. We
address each argument in turn.
Dowis argues that § 922(g)(1) is unconstitutional because it targets a
politically unpopular group—convicted felons—and fails to differentiate between
violent and nonviolent felons, without a rational basis. We have already held that
“statutory restrictions on firearm possession, such as § 922(g)(1), are a
constitutional avenue to restrict the Second Amendment right of certain classes of
people.” Id. at 771. “Like most rights, the right secured by the Second
3
Case: 15-10988 Date Filed: 02/18/2016 Page: 4 of 5
Amendment is not unlimited.” Heller, 554 U.S. at 626, 128 S. Ct. at 2816. Certain
individuals—including convicted felons—are “disqualified from the exercise of
Second Amendment rights.” Rozier, 598 F.3d at 770 (quoting Heller, 554 U.S. at
635, 128 S. Ct. at 2822); accord United States v. Giles, 640 F.2d 621, 624–25 (5th
Cir. Unit A Mar. 1981) (holding that predecessor statute to § 922(g)(1) survived an
equal protection challenge because the government has a rational basis for
restricting the Second Amendment rights of both violent and non-violent felons). 1
Accordingly, Dowis’s claim is foreclosed by this court’s prior precedent. See, e.g.,
United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per curiam)
(“[W]e are bound to follow a prior binding precedent unless and until it is
overruled by this court en banc or by the Supreme Court.” (internal quotation
marks omitted)).
Dowis also argues that his sentence violates the Eighth Amendment
prohibition against cruel and unusual punishment because it is grossly
disproportionate to his conduct. Specifically, Dowis argues that spending thirty
months in prison for “possessing an otherwise legal firearm is grossly excessive.”
Dowis received a sentence of 30-months imprisonment, which is not only below
the statutory maximum of 10 years, but also a variance downward from the
1
All decisions of the “old Fifth” Circuit handed down prior to the close of business on
September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
4
Case: 15-10988 Date Filed: 02/18/2016 Page: 5 of 5
applicable advisory guideline range of 33 to 41 months. This lenient sentence does
not violate the Eighth Amendment; “a sentence within the statutory limits generally
does not violate the Eighth Amendment.” See United States v. Johnson, 451 F.3d
1239, 1243 (11th Cir. 2006) (per curiam) (emphasis added). Accordingly, we
affirm.
III
For the foregoing reasons, we AFFIRM Dowis’s conviction and sentence.
5