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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10479
Non-Argument Calendar
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D.C. Docket No. 3:18-cr-00045-BJD-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEMONE LAWRENCE WALKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 24, 2020)
Before WILSON, MARTIN and BRANCH, Circuit Judges.
PER CURIAM:
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Jemone Walker appeals his 180-month sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He
argues that the district court lacked jurisdiction to hear his case because his
indictment was deficient under Rehaif v. United States,
139 S. Ct. 2191 (2019).
The government argues that Walker’s argument is barred under the law of the case
doctrine because he failed to raise it during his first appeal. 1
We review de novo the application of the law of the case doctrine. See
United States v. Bobo,
419 F.3d 1264, 1267 (11th Cir. 2005). “The district court’s
subject-matter jurisdiction is a question of law subject to de novo review.” United
States v. Giraldo-Prado,
150 F.3d 1328, 1329 (11th Cir. 1998) (per curiam)
(emphasis removed). Issues or claims not clearly raised by a party on appeal are
considered abandoned. United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th
Cir. 2003). However, “parties may not waive a jurisdictional defect.” United
States v. DiFalco,
837 F.3d 1207, 1215 (11th Cir. 2016).
The law of the case doctrine directs that “previously decided” issues—
findings of fact and conclusions of law made by an appellate court—are generally
binding in subsequent proceedings in the same case. Luckey v. Miller,
929 F.2d
1
Walker filed his first appeal in 2019, arguing that he was erroneously sentenced under the
Armed Career Criminal Act (ACCA), he was sentenced without an opportunity to allocute, and
the felon-in-possession statute was unconstitutional. We affirmed his challenges to the ACCA
and the constitutionality of the felon-in-possession statute but remanded to the district court to
give him an opportunity to allocute—which it did.
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618, 621 (11th Cir. 1991). The doctrine “encompass[es] issues decided by
necessary implication as well as those decided explicitly.”
Id. However, the
doctrine does not prevent us from considering “matters that could have been, but
were not, resolved in earlier proceedings.”
Id. at 621–22 (concluding that this
court’s summary denial of a petition for rehearing en banc did not trigger the
doctrine because no inference could be made regarding its opinion of the merits of
the case, notwithstanding a dissenting opinion). The doctrine is a rule of judicial
practice and, as such, is not jurisdictional in nature. United States v. Anderson,
772
F.3d 662, 668 (11th Cir. 2014).
“[A] legal decision made at one stage of the litigation, unchallenged in a
subsequent appeal when the opportunity existed, becomes the law of the case for
future stages of the same litigation.” United States v. Escobar-Urrego,
110 F.3d
1556, 1560 (11th Cir. 1997). In United States v. Fiallo-Jacome, we determined
that the defendant had waived his right to raise a number of alleged trial errors in
his second direct appeal that followed his resentencing where he could have raised
each of those errors in first direct appeal.
874 F.2d 1479, 1480–83 (11th Cir. 1989)
(noting that “all of the factual predicates” for the defendant’s arguments in his
second appeal “were entirely or largely available” based on the records from the
trial and sentencing of the defendant and his codefendant). Under those
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circumstances, we determined that it was not appropriate to allow the defendant
“two bites at the appellate apple.”
Id. at 1482.
When the Supreme Court overturns binding precedent of this court after the
appellant has filed his initial brief, we permit the appellant “to raise in a timely
fashion thereafter an issue or theory based on that new decision while his direct
appeal is still pending in this [c]ourt.” United States v. Durham,
795 F.3d 1329,
1330–31 (11th Cir. 2015) (en banc).
Section 922(g)(1) states: “It shall be unlawful for any person . . . who has
been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to . . . possess in or affecting commerce, any firearm or
ammunition.” 18 U.S.C. § 922(g)(1). Section 924(a)(2) states that “[w]hoever
knowingly violates [§ 922(g)] shall be fined as provided in this title, imprisoned
not more than 10 years, or both.” Section 924(e)(1) states: “[A] person who
violates section 922(g) of this title and has three previous convictions . . . for a
violent felony or a serious drug offense, or both . . . shall be fined under this title
and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1).
In Rehaif, which was decided on June 21, 2019, the Supreme Court clarified
that, in prosecuting an individual under 18 U.S.C. § 922(g) and § 924(a)(2), the
government “must prove both that the defendant knew he possessed a firearm and
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that he knew he belonged to the relevant category of persons barred from
possessing a
firearm.” 139 S. Ct. at 2200.
An indictment sufficiently alleges a crime and therefore confers jurisdiction
on the district court if the indictment “track[s] the statutory language and stat[es]
approximately the time and place of an alleged crime.” United States v. Moore,
954 F.3d 1322, 1332 (11th Cir. 2020). In Moore, we held that failure to allege that
the defendants knew of their felon status in an indictment under 18 U.S.C. § 922(g)
that did not include § 924(a)(2) did not deprive the district court of jurisdiction,
even though it was defective based on Rehaif, because the indictment met the “not
demanding” standard for alleging a crime set forth above.
Id. at 1332–37; see also
United States v. Bates,
960 F.3d 1278, 1284, 1295 (11th Cir. 2020) (addressing a
Rehaif challenge to a conviction under § 922(g)(1) and § 924(e) and noting
Moore’s holding that a Rehaif-based defect in an indictment is non-jurisdictional).
Because Rehaif was decided while Walker’s prior appeal was pending in this
court, Walker had the opportunity to raise his Rehaif claim in his prior appeal.
Therefore, his argument is precluded by the law of the case. Further, while he
contends that the issue is jurisdictional and therefore not subject to waiver, our
decision in Moore forecloses this argument. See United States v. Romo-Villalobos,
674 F.3d 1246, 1251 (11th Cir. 2012) (“Under the prior precedent rule, we are
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bound to follow a prior binding precedent unless and until it is overruled by this
court en banc or by the Supreme Court.”). Therefore, we affirm the district court.
AFFIRMED.
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