United States v. Robert Lynn Perry ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
SEPTEMBER 6, 2007
No. 06-13835
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 05-00331-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LYNN PERRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 6, 2007)
Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.
PER CURIAM:
Defendant-Appellant Robert Lynn Perry appeals his conviction and 235-
month sentence for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1).
No reversible error has been shown; we affirm.
Perry first argues that the government failed to show at his trial that the
firearm in this case affected interstate commerce.1 Perry -- who was charged with
possessing the firearm in Florida -- contends that the government did not prove
that the firearm was manufactured outside of Florida. He also asserts that, even
assuming that the firearm was produced outside of Florida, the government failed
to show that the gun traveled to Florida through interstate commerce.
We review challenges to the sufficiency of the evidence de novo, resolving
all reasonable inferences from the evidence in favor of the jury’s verdict. See
United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). We must affirm
Perry’s conviction “unless, under no reasonable construction of the evidence,
could the jury have found [him] guilty beyond a reasonable doubt.” United States
v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
1
To convict a defendant under 18 U.S.C. § 922(g)(1), the government must prove beyond a
reasonable doubt, among other things, “that the firearm was in or affecting interstate commerce.”
United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000).
2
At Perry’s trial, Special Agent Michael Gistinger with the Bureau of
Alcohol, Tobacco, Firearms and Explosives testified that the gun involved in this
case -- a Mossberg pistol grip shotgun -- was manufactured in Connecticut, where
Mossberg is based, and traveled in interstate commerce. Agent Gistinger’s
testimony provided sufficient evidence that the gun Perry possessed was in or
affected interstate commerce. See United States v. Scott, 263 F.3d 1270, 1274
(11th Cir. 2001) (concluding that testimony by Special Agent of Bureau of
Alcohol, Tobacco and Firearms that firearm “was manufactured in California and
had moved in interstate commerce to Georgia where [defendant] was caught with
the weapon” was sufficient “to demonstrate the required nexus to interstate
commerce”); United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir. 2001)
(explaining that “by brandishing a firearm that was manufactured in California and
found in his car,” defendant’s acts satisfied the “minimal nexus to interstate
commerce” required by section 922(g)).
Perry also asserts that section 922(g) is unconstitutional as applied to him.
Citing the Supreme Court’s decision in United States v. Lopez, 115 S.Ct. 1624(1995), Perry contends that his conviction is unconstitutional because his firearm
possession did not bear a substantial relationship to interstate commerce.
3
We review constitutional issues de novo. United States v. Wright, 392 F.3d
1269, 1280 (11th Cir. 2004). We have consistently upheld the validity of 18
U.S.C. § 922(g) against the constitutional challenge raised by Perry. See United
States v. McAllister, 77 F.3d 387, 389-90 (11th Cir. 1996) (rejecting -- in the light
of the Supreme Court’s Lopez decision -- both a facial challenge to the
constitutionality of section 922(g) and a challenge to section 922(g), as applied to
defendant, based on defendant’s claim that the government failed to show how his
gun possession affected interstate commerce); see also Wright, 392 F.3d at 1280;
United States v. Dunn, 345 F.3d 1285, 1297 (11th Cir. 2003); Scott, 263 F.3d at
1274; Dupree, 258 F.3d at 1259-60 (all upholding constitutionality of section
922(g)). Perry’s constitutional claim is without merit.
Perry next contends that the district court erred in enhancing his sentence
pursuant to the Armed Career Criminal Act (“ACCA”) based on prior convictions
that were not proven to the jury beyond a reasonable doubt, in violation of the
Sixth Amendment.2 We review constitutional challenges to a sentence de novo.
United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
2
The ACCA provides, “In the case of a person who violates section 922(g) . . . and has three
previous convictions by any court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such person shall be . . . imprisoned not less
than fifteen years.” 18 U.S.C. § 924(e).
4
Perry’s position is precluded by the Supreme Court’s decision in
Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998). In that case, the
Supreme Court explained that “the government need not allege in its indictment
and need not prove beyond a reasonable doubt that a defendant had prior
convictions for a district court to use those convictions for purposes of enhancing
a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004).
Later decisions by the Supreme Court, including Apprendi v. New Jersey, 120
S.Ct. 2348 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and United
States v. Booker, 125 S.Ct. 738 (2005), have not disturbed that conclusion.
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,
126 S.Ct. 457 (2005). “Although recent decisions, including Shepard v. United
States, 125 S.Ct. 1254 (2005), may arguably cast doubt on the future prospects of
Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has
not explicitly overruled Almendarez-Torres. As a result, we must follow
Almendarez-Torres.” Id. at 1316 n.3. Therefore, the district court did not err in
enhancing Perry’s sentence based on his prior convictions.
We affirm Perry’s conviction and sentence.
AFFIRMED.
5