United States v. Donald Ray Horne

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 22, 2006
No. 06-10500 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00045-CR-FTM-33-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD RAY HORNE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 22, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Donald Ray Horne appeals his conviction and 15-year sentence for
possession of ammunition by a convicted felon, pursuant to 18 U.S.C. §§ 922(g)(1)
and 924(e). On appeal, Horne challenges the constitutionality of § 922(g) and
argues that the district court erred by applying the 15-year mandatory minimum
sentence under § 924(e). For the reasons set forth more fully below, we affirm.
Horne, a convicted felon, was found in possession to two live shotgun shells.
He pled guilty to possession of ammunition by a convicted felon and, at
sentencing, made no objection to the probation officer’s determination that,
because he was subject to a mandatory 15-year minimum term of imprisonment
pursuant to 18 U.S.C. § 924(e), his applicable Guideline range was 180-210
months’ imprisonment. Horne was sentenced to the mandatory minimum term of
15 years’ imprisonment.
For the first time on appeal, Horne, stating that he raises the issue only for
purposes of preservation, argues that 18 U.S.C. § 922(g)1 is unconstitutional on its
face because it does not explicitly require a substantial effect on interstate
commerce and is unconstitutional as applied because there was no such evidence in
this case. As Horne correctly recognizes, we have previously rejected this
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This section makes it unlawful for certain individuals to “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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challenge and held that a “minimal nexus” to interstate commerce is sufficient.
United States v. Scott, 263 F.3d 1270, 1273-74 (11th Cir. 2001).
Horne next argues that the indictment suffered from a jurisdictional defect,
resulting in the erroneous application of the 15-year mandatory minimum sentence
under § 924(e).2 The premise of Horne’s argument is that, by specifying 12 prior
convictions in the indictment, the 3 predicate convictions needed to trigger
§ 924(e) could only come from those 12 convictions. Horne concedes that two of
those convictions meet the criteria in § 924(e). However, he argues that the
remaining ten prior felonies, on their face, did not meet the § 924(e) criteria. As a
result, he contends, there was a jurisdictional error because the three required
qualifying convictions were not present on the face of the indictment. He further
argues that the district court erred by failing to determine whether the Florida
burglary convictions alleged in the indictment qualified as predicate convictions
based on the conduct surrounding those convictions.
We review de novo whether an indictment sufficiently charges a statutorily
2
This section provides in pertinent part:
In the case of a person who violates section 922(g) of this title and has three
previous convictions by any court referred to in section 922(g)(1) of this title 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)(1).
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proscribed offense. United States v. Pease, 240 F.3d 938, 942 (11th Cir. 2001).
Because Horne raised this argument for the first time on appeal, “the indictment
must be held sufficient unless it is so defective that it does not, by any reasonable
construction, charge the offense to which [the defendant] pleaded guilty.” Id. at
943. An indictment suffers from a jurisdictional defect when it charges no crime at
all, i.e., a non-offense. See United States v. Peter, 310 F.3d 709, 714-15 (11th Cir.
2002). A defendant’s knowing and voluntary plea of guilty, however, waives all
non-jurisdictional defects in the proceedings. United States v. Yunis, 723 F.2d
795, 796 (11th Cir. 1984).
Horne does not dispute that he was a felon in possession of ammunition, in
violation of 18 U.S.C. § 922(g)(1). His challenge to § 924(e) fails because
§ 924(e) is a sentence enhancement provision, not a separate offense. United
States v. McGatha, 891 F.2d 1520, 1527 (11th Cir. 1990). Accordingly, the prior
convictions need not be alleged in the indictment and are relevant only for
sentencing. Id. Any defect in the manner in which the indictment charged a
violation of § 924(e), therefore, is of no relevance to whether the indictment failed
to charge the offense to which Horne pled guilty. Horne cannot challenge his
conviction on the ground there was an insufficient factual basis to support the
application of § 924(e), as a claim that “there was an insufficient factual basis to
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support the indictment” is a non-jurisdictional defect. United States v. Fairchild,
803 F.2d 1121, 1124 (11th Cir. 1986).
To the extent that Horne challenges the application of § 924(e) to his
sentence, because it is raised for the first time on appeal, we review his claim “for
plain error, or error that is clear or obvious and affects substantial rights.” United
States v. Richardson, 166 F.3d 1360, 1361 (11th Cir. 1999). We have repeatedly
rejected the argument that prior convictions must be charged in the indictment for a
defendant to be sentenced as an armed career criminal. E.g., United States v.
Wade, 458 F.3d 1273, 1278 (11th Cir. 2006); United States v. Dowd, 451 F.3d
1244, 1253 (11th Cir. 2006), pet. for cert. filed (Aug. 24, 2006) (No. 06-6164).
Furthermore, sentencing under § 924(e) is mandatory and must be applied
automatically regardless of whether the government affirmatively seeks the
enhancement. United States v. Cobia, 41 F.3d 1473, 1475 (11th Cir. 1995).
Accordingly, any error by the district court in relying on convictions other than
those charged in the indictment cannot be said to be clear or obvious.3
3
Horne asks us to remand the case to allow the district court to make a specific finding as
to Horne’s third qualifying offense, if any. The parties characterize this issue as a question of
whether or not we should affirm on alternate grounds. Because Horne has not otherwise shown
error by the district court, there is no need to affirm on alternate grounds. In any event, we
would not remand for a finding as to whether Horne’s March 19, 2004 conviction for the sale or
delivery of cocaine is a qualifying “serious drug offense” under § 924(e). Under Florida law, the
sale or delivery of cocaine is a second degree felony, punishable by a maximum term of 15
years’ imprisonment, Fla. Stat. § 893.13(1)(a)(1) (referencing §§ 775.082(3)(c),
893.03(2)(a)(4)), and, therefore, it is a qualifying offense. 18 U.S.C. § 924(e)(2)(A)(ii).
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In light of the foregoing, Horne’s conviction and sentence are
AFFIRMED.
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