Case: 18-15337 Date Filed: 10/25/2019 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15337
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20604-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED WAYNE LEE, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 25, 2019)
Before WILLIAM PRYOR, JORDAN and NEWSOM, Circuit Judges.
PER CURIAM:
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Alfred Lee, Jr. appeals his sentence of 180 months of imprisonment for
possessing a firearm as a convicted felon.
18 U.S.C. § 922(g)(1). Lee argues that
section 922(g) is unconstitutional because intrastate gun possession by a convicted
felon does not have a substantial effect on interstate commerce, and he argues that
the enhancement of his sentence under the Armed Career Criminal Act,
18 U.S.C.
§ 924(e), based on facts about prior convictions not alleged in his indictment and
that were not proved to a jury violated his rights under the Fifth and Sixth
Amendments. We affirm.
We ordinarily review de novo the constitutionality of a statute and a
sentence, but because Lee raises his arguments for the first time on appeal, we
review for plain error. See United States v. Wright,
607 F.3d 708, 715 (11th Cir.
2010) (section 922(g)); United States v. Harris,
741 F.3d 1245, 1248 (11th Cir.
2014).(sentence enhancement). To establish plain error, Lee must prove that error
occurred that was plain and that affected his substantial rights. See Wright,
607
F.3d at 715.
No error, much less plain error, occurred in sentencing Lee because, as he
concedes, his arguments are foreclosed by our precedents. We have held 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,” United States v. Scott,
263 F.3d 1270, 1273 (11th
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Cir. 2001), and that section 922(g)(1) is constitutional as applied to a defendant
who possesses a firearm that “traveled in interstate commerce,” United States v.
McAllister,
77 F.3d 387, 390 (11th Cir. 1996). See Wright,
607 F.3d at 715–16.
And in Almendarez–Torres v. United States,
523 U.S. 224, 228–47 (1998), the
Supreme Court held that a prior conviction “relevant only to the sentencing of an
offender found guilty of the charged crime” does not have to be charged in an
indictment or proven beyond a reasonable doubt to a jury, even if it increases the
defendant’s maximum statutory sentence. Almendarez-Torres remains the law until
overruled by the Supreme Court, and it expressly refused to do so in Alleyne v.
United States,
570 U.S. 99 (2013). Harris, 741 F.3d at 1249.
We AFFIRM Lee’s sentence.
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