United States v. Earnest D. Battle , 347 F. App'x 478 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10456 ELEVENTH CIRCUIT
SEPTEMBER 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00307-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EARNEST D. BATTLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(September 28, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Earnest D. Battle appeals his conviction and 180-month sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Battle argues that the district court abused its discretion by refusing to allow him to
present a justification defense. Battle concedes that his contention is foreclosed by
Eleventh Circuit precedent, but asserts that this precedent should be overruled.
We review de novo a district court’s determination of whether a defendant’s
proffer is sufficient to establish all of the elements of a justification defense.
United States v. Dicks, 338 F.3d 1256, 1257 (11th Cir. 2003). When a defendant is
charged with violating § 922(g)(1), a justification defense may be available “in
only extraordinary circumstances.” United States v. Deleveaux, 205 F.3d 1292,
1297, (11th Cir. 2000). Justification is an affirmative defense to § 922(g)(1) that
requires that the defendant show the following four elements:
(1) that the defendant was under unlawful and present, imminent, and
impending threat of death or serious bodily injury; (2) that the
defendant did not negligently or recklessly place himself in a situation
where he would be forced to engage in criminal conduct; (3) that the
defendant had no reasonable legal alternative to violating the law; and
(4) that there was a direct causal relationship between the criminal
action and the avoidance of the threatened harm.
Id. “The first prong requires nothing less than an immediate emergency.” United
States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).
Battle’s proffer in support of a justification defense failed to show that he
was under a “present, imminent, and impending threat of death or serious bodily
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injury.” Battle’s alleged threat of serious injury was based on a single incident that
occurred several years before he was arrested in possession of two firearms. Thus,
the district court did not abuse its discretion by excluding Battle’s evidence which
failed to show an immediate emergency.
Battle next argues that, under District of Columbia v. Heller, 554 U.S. __,
128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), his constitutional right to bear arms was
unconstitutionally abrogated by 18 U.S.C § 922(g)(1). He contends that the
Second Amendment does not allow an absolute and permanent prohibition of the
right to bear arms, as is found in § 922(g)(1).
“When a motion to dismiss challenges the constitutionality of a statute, we
review de novo the interpretation of the statute by the district court.” United States
v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). The Second Amendment states
that “[a] well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. Pursuant to § 922(g)(1), it is unlawful for a convicted felon to possess a
firearm or ammunition. 18 U.S.C. § 922(g)(1).
In Heller, the Supreme Court addressed the constitutionality of a District of
Columbia statute that generally prohibited the possession of handguns. 554 U.S. at
__,128 S.Ct. at 2788. The Supreme Court held that “the Second Amendment
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guarantees an individual right to possess weapons unconnected with militia
service.” United States v. Tagg, No. 08-16860, manuscript op. at 11 (11th Cir.
June 30, 2009) (citing Heller, 554 U.S. at __, 128 S.Ct. at 2787-812). However,
“the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at
__, 128 S.Ct. at 2816. In fact, the Supreme Court noted that “nothing in [its]
opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill.” 554 U.S. at__, 128 S.Ct. at
2816-17.
Because the Supreme Court in Heller stated that “the right secured by the
Second Amendment is not unlimited” and “nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of firearms by felons
and the mentally ill,” Battle’s argument that the permanent prohibition of the right
to bear arms, as found in 18 U.S.C. § 922(g)(1), violates the Second Amendment is
without merit.
Battle next argues that 18 U.S.C. § 922(g)(1) is unconstitutional because it is
an unlawful exercise of Congress’s authority to regulate commerce under Article I,
Section 8, Clause 3 of the U.S. Constitution. We have previously “held that §
922(g)(1) is not an unconstitutional exercise of Congress’s power under the
Commerce Clause.” United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir.
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1997); see also United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996)
(holding that § 922(g)(1) was not unconstitutional as applied to a defendant who
only possessed a firearm intrastate because Ҥ 922(g) is an attempt to regulate guns
that have a connection to interstate commerce”). Thus, the district court did not err
by finding that § 922(g)(1) does not violated the Commerce Clause.
Battle next argues that his mandatory minimum sentence of 180 months’
imprisonment pursuant to 18 U.S.C. § 924(e) constituted cruel and unusual
punishment in violation of the Eighth Amendment. We review de novo
constitutional challenges to a defendant’s sentence. United States v. Lyons, 403
F.3d 1248, 1250 (11th Cir. 2005). The Armed Career Criminal Act (“ACCA”)
provides that any person convicted of an offense under 18 U.S.C. § 922(g) who has
3 previous convictions for a violent felony or a serious drug offense, is subject to a
15-year mandatory minimum sentence. 18 U.S.C. § 924(e)(1).
We have consistently held that mandatory minimum sentences for
armed career criminals under § 924(e) do not constitute cruel and unusual
punishment in violation of the Eighth Amendment. See United States v. Johnson,
528 F.3d 1318, 1322 (11th Cir. 2008) (holding that “[the defendant’s] contention
that his sentence of 185 months for being an armed career criminal in possession of
ammunition violates the Cruel and Unusual Punishment Clause of the Eighth
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Amendment is foreclosed by [Lyons]”), cert. granted, 129 S.Ct. 1315 (2009);
Lyons, 403 F.3d at 1257 (holding that a 235-month sentence for an armed career
criminal convicted for being a felon in possession of ammunition was not cruel and
unusual punishment; United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir.
2000) (holding that the defendant’s 180-month mandatory minimum sentence
under the ACCA was not cruel and unusual punishment in violation of the Eighth
Amendment).
Battle’s contention that his mandatory minimum sentence of 180 months’
imprisonment pursuant to 18 U.S.C. § 924(e) constitutes cruel and unusual
punishment in violation of the Eighth Amendment is foreclosed by our precedent.
Accordingly, upon review of the record and consideration of the parties’ briefs, we
affirm Battle’s conviction and 180-month sentence.
AFFIRMED.
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