United States v. Victor Tyrone Dix , 185 F. App'x 846 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14194 JUNE 20, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00417-CR-1-WBH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR TYRONE DIX,
a.k.a. Victor Dix,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 20, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Victor Tyrone Dix appeals his conviction and 190-month sentence for being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On
appeal, Dix argues that (1) 18 U.S.C. § 922(g) is unconstitutional on its face and as
applied to his case, (2) the evidence was insufficient to show he possessed a
firearm that had traveled in interstate commerce, and (3) the district court erred by
sentencing him to 190 months, 10 months above the mandatory minimum set by 18
U.S.C. § 924(e) (the “Armed Career Criminal Act” or “ACCA”), based upon prior
convictions not proven to a jury.
DISCUSSION
A. 18 U.S.C. § 922(g)
Prior to trial, Dix filed a motion to dismiss the indictment because 18 U.S.C.
§ 922(g)1 unconstitutionally exceeded Congress’s authority under the Commerce
Clause, both facially and as applied to him, citing United States v. Lopez, 514 U.S.
549 (1995) and United States v. Morrisson, 529 U.S. 598 (2000). The magistrate
judge recommended denying Dix’s motion and the district court adopted the report
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18 U.S.C. § 922(g) reads, in pertinent part, as follows:
(g) It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year . . .
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g).
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and recommendation. The magistrate judge noted that as opposed to the two
statutes struck down as unconstitutional in Lopez and Morrison, which both lacked
a jurisdictional element that would ensure a nexus with interstate commerce, 18
U.S.C. § 922(g) contains an explicit jurisdictional element.
We agree with the magistrate judge. This court has repeatedly upheld the
facial constitutionality of § 922(g) precisely because it contains a jurisdictional
element. See United States v. Dupree, 258 F.3d 1258 (11th Cir. 2001) (holding
that § 922(g) is constitutional because “[i]t is the jurisdictional element to § 922(g)
that distinguishes it from [the statute at issue in Lopez]” and, accordingly, the
holding in Lopez is inapplicable); United States v. McCallister, 77 F.3d 387 (11th
Cir. 1996) (holding that § 922(g) is constitutional). Furthermore, as applied to Dix
in this case, § 922(g) also passes constitutional muster. Our precedents make clear
that the government need only prove that the firearm in question had moved in
interstate commerce at some point in order to satisfy the jurisdictional element that
the gun be “in or affecting commerce,” as required by § 922(g). See United States
v. Reynolds, 215 F.3d 1210, 1215 (11th Cir. 2000) (“We have held that as long as
the weapon in question had a “minimal nexus” to interstate commerce, § 922(g)(1)
is constitutional . . . .” (citation omitted)). Since here the government presented
evidence that the firearm had been shipped from California and the ammunition
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had been purchased from either Connecticut or Arkansas, there is a sufficient
nexus to interstate commerce. See, e.g,McCallister, 77 F.3d at 389 (defendant's
possession of a firearm that had traveled in interstate commerce in the past was
sufficient to satisfy the interstate commerce element of § 922(g)).
B. Sufficiency of the Evidence
Dix argues on appeal that the government failed to show sufficient evidence
to allow a jury to conclude, beyond a reasonable doubt, that he was in possession
of the firearm at issue in this incident. Dix points to a number of inconsistencies in
the testimony of police officers at the scene of the incident, and the fact that no
direct evidence of his possession of the gun was introduced at trial, in support of
his sufficiency argument.
Sufficiency of the evidence is an issue that we review de novo to determine
whether “a reasonable jury, viewing the evidence and all reasonable inferences
therefrom in the light most favorable to the government could find the defendant[]
guilty as charged beyond a reasonable doubt.” United States v. Williams, 339 F.3d
1295, 1299 (11th Cir. 1993) (internal quotations omitted). The evidence need not
“exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt,” because the jury remains free to select
among reasonable constructions of the evidence. United States v. McDowell, 250
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F.3d 1354, 1365 (11th Cir. 2001). We resolve all reasonable inferences and
credibility evaluations in favor of the jury’s guilty verdict, United States v.
Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999), although “reasonable inferences,
not mere speculation, must support the jury’s verdict,” United States v. Perez-
Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994).
In order to secure a conviction under 18 U.S.C. § 922(g) the government
must prove that Dix was (1) a convicted felon, (2) who knowingly possessed a
weapon that (3) affected or was in interstate commerce. United States v. Wright,
392 F.3d 1269, 1273 (11th Cir. 2004). The government need not prove actual
possession but may show knowledge through constructive possession, using
circumstantial as well as direct evidence of possession. Id. Dix does not contest
that he was a convicted felon, and we have addressed his interstate commerce
argument above. The only remaining issue, therefore, is his possession of the
firearm.
At trial, the government’s evidence showed that on the night of August 18,
2003, Atlanta police officer Cerderick Ford and a colleague were investigating a
group of juveniles who were suspected of being out past curfew. Several people
were detained, including Dix. One of the officers at the scene handcuffed Dix and
seated him on the ground beside the patrol car. Ford testified at trial that he did not
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recall Dix’s exact location. Shortly after seating Dix on the ground, Ford testified
that he heard a gunshot. All of the detained people jumped and tried to lie on the
ground, but Dix appeared calm and did not move. Ford did not see who had fired
the gunshot but a gun was found underneath the car Dix was seated next to and
Ford testified that nobody else was close to the car. Another law enforcement
agent at the scene, Officer Edgar Irish, testified that he saw Dix being brought to
the front of one of the police vehicles and placed on his knees. Irish testified that
after the gunshot Dix was standing up in front of the police car. Officer Alvin
Rodriguez testified that he handcuffed Dix behind his back and searched his
waistband and pockets, but not his sneakers. Rodriguez testified that he then took
Dix and placed him on his knees in front of his police car. In the position Dix was
in, he had access to his sneakers. After Rodriguez walked away from Dix, he
heard a gunshot. When Rodriguez turned around, he saw Dix seated at the same
spot, acting calm and collected. A gun was recovered under the vehicle “maybe
about a foot and a half” from where Dix was sitting.
While Dix is correct in arguing that the government’s evidence in this case
included certain inconsistencies, such as whether he was kneeling or standing in
front of the police car after the gunshot, and that the government did not present
direct evidence of Dix’s possession of the firearm, we cannot say, when making all
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reasonable inferences and credibility determinations in favor of the government,
that a reasonable jury could not find Dix guilty as charged beyond a reasonable
doubt. The jury was free to determine that the evidence showing Dix was the only
person who was close to the gun seconds after it was fired was sufficient to show
that he was the person who shot the gun, and thus possessed it at that time. See
Wright, 392 F.3d at 1273.
C. Sentencing
Dix argues that pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S.
220 (2005), the convictions used to support a finding that a defendant is an armed
career criminal under 18 U.S.C. § 924(e) must be proven to a jury beyond a
reasonable doubt to pass constitutional muster.2 The government argues that under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), prior convictions do not
need to be proved beyond a reasonable doubt for purposes of enhancing a sentence.
Because we have since held that the holding of Almendarez-Torres was left
“undisturbed” by Booker, Dix’s constitutional argument lacks merit. United States
v. Shelton, 400 F.3d 1325, 1329 (11th Cir. 2005). Furthermore, Dix has not
preserved a statutory argument that Shepard v. United States, 544 U.S. 13, 125 S.
2
We review a preserved constitutional challenge to a defendant’s sentence de novo.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005) (citation omitted).
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Ct. 1254 (2005) and Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990)
should be applied to a district court’s categorization of a particular prior conviction
for purposes of 18 U.S.C. § 924(e), or how the district court should arrive at that
categorization.3 Thus, he has waived that argument. See United States v. Duncan,
400 F.3d 1297, 1299 n. 1 (11th Cir. 2005) (declining to address the Booker
implications of firearm and role enhancements because appellant did not challenge
those enhancements in his initial brief); see also Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1322 (11th Cir. 2001) (holding that issues not clearly raised in initial
briefs are considered abandoned).
AFFIRMED.
3
Compare United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995) (applying similar
analysis set forth in Taylor to the sentencing guidelines to determine whether prior conviction
qualified under § 4B1.1 of the sentencing guidelines); United States v. Krawczak, 331 F.3d
1302, 1303 (11th Cir. 2003) (same, but for § 2L1.2(b) of the sentencing guidelines); United
States v. Kendrick, 423 F.3d 803, 808-09 (8th Cir. 2005) (applying Shepard and Taylor analysis
to the sentencing guidelines); United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir. 2005)
(same); United States v. Gutierrez-Ramirez, 405 F.3d 352, 358-59 (5th Cir. 2005) (same); United
States v. Galloway, 439 F.3d 320, 323-24 (6th Cir. 2006) (same).
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