United States v. George Antonio Corey

Case: 12-15258 Date Filed: 06/04/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15258
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-20184-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE ANTONIO COREY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 4, 2013)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-15258 Date Filed: 06/04/2013 Page: 2 of 5
Pursuant to a plea agreement, George Corey pled guilty to being a convicted
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because he
had three prior convictions qualifying under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), the statutory minimum sentence Corey could
receive was 15-years’ imprisonment, so the District Court sentenced him to prison
for a 15-years’ term. He appeals his sentence, arguing (1) that § 922(g)(1) is
unconstitutional both on its face and as applied to him because it exceeds
Congress’ authority under the Commerce Clause; (2) that his Fifth and Sixth
Amendment rights were violated because he was sentenced to a term above the
statutory maximum sentence based on prior convictions not alleged in his
indictment or proven beyond a reasonable doubt; and (3) that the residual clause in
§ 924(e) is unconstitutionally vague. After careful review of the parties’ briefs,
we affirm Corey’s conviction and sentence.
I.
Corey argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as
applied to him because it exceeds Congress’ authority under the Commerce
Clause. We review de novo the constitutionality of a statute. United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010). Section § 922(g)(1) makes it unlawful
for a convicted felon “to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to receive any
2
Case: 12-15258 Date Filed: 06/04/2013 Page: 3 of 5
firearm or ammunition which has been shipped or transported in interstate or
foreign commerce.” 18 U.S.C. § 922(g)(1). We have repeatedly upheld
§ 922(g)(1) against facial attacks as a constitutional exercise of Congress’ power
under the Commerce Clause. See United States v. Scott, 263 F.3d 1270, 1273
(11th Cir. 2001) (holding that “the jurisdictional element of the statute, i.e., the
requirement that the felon ‘possess in or affecting commerce, any firearm or
ammunition,’ immunizes § 922(g)(1) from [a] facial constitutional attack”); see
also United States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001); United
States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); United States v.
McAllister, 77 F.3d 387, 389-90 (11th Cir. 1996).
We have also upheld § 922(g)(1) against as-applied challenges, where the
Government has shown a “minimal nexus” between the firearm and interstate
commerce. McAllister, 77 F.3d at 390. A showing that the firearm was
manufactured in one state and traveled in interstate commerce to another state
satisfies the “minimal nexus” test. Scott, 263 F.3d at 1274.
As Corey readily concedes in his appellate brief, his facial challenge to
§ 922(g)(1) is foreclosed by our precedent upholding § 922(g) under similar facial
attacks. His as-applied challenge to § 922(g) is also unavailing. At the plea
colloquy, he admitted that the firearm was manufactured outside of Florida and
thus traveled in and affected interstate commerce. As such, this was sufficient to
3
Case: 12-15258 Date Filed: 06/04/2013 Page: 4 of 5
show a “minimal nexus” between the firearm and its connection to interstate
commerce.
II.
Corey argues that his Fifth and Sixth Amendment rights were violated
because he was sentenced above the statutory maximum sentence based on prior
convictions not alleged in the indictment or proven beyond a reasonable doubt.
His argument is foreclosed by Almendarez-Torres v. United States, in which the
Supreme Court held that, for sentencing enhancement purposes, a defendant’s prior
conviction does not have to be alleged in the indictment or submitted to a jury and
proved beyond a reasonable doubt. 523 U.S. 224, 226-27, 239-40, 118 S.Ct.1219,
1222, 1228-29, 140 L. Ed. 2d 350 (1998).
III.
Corey argues that the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is
unconstitutionally vague. Under § 924(e), a person who violates § 922(g)(1) and
has three previous convictions “for a violent felony or a serious drug offense, or
both, committed on occasions different from one another” will be subject to a
mandatory minimum sentence of 15-years’ imprisonment. 18 U.S.C. § 924(e).
The residual clause of § 924(e)(2)(B)(ii) defines a violent felony as any offense
that “otherwise involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
4
Case: 12-15258 Date Filed: 06/04/2013 Page: 5 of 5
In James v. United States, the Supreme Court rejected the argument “that the
[ACCA’s] residual provision is unconstitutionally vague.” 550 U.S. 192, 210 n.6,
127 S. Ct. 1586, 1598 n.6, 167 L. Ed. 2d 532 (2007). The Court stated that “[t]he
statutory requirement that an unenumerated crime ‘otherwise involve conduct that
presents a serious potential risk of physical injury to another’ is not so indefinite as
to prevent an ordinary person from understanding what conduct it prohibits.” Id.,
550 U.S. at 210 n.6, 127 S.Ct. at 1598 n.6. (brackets omitted). In Sykes v. United
States, the Supreme Court noted that the residual clause “states an intelligible
principle and provides guidance that allows a person to conform his or her conduct
to the law. Although this approach may at times be more difficult for courts to
implement, it is within congressional power to enact.” __ U.S. __, __, 131 S. Ct.
2267, 2277, 180 L. Ed. 2d 60 (2011) (citation and quotation omitted). The holdings
in James and Sykes foreclose Corey’s vagueness challenge. See United States v.
Chitwood, 676 F.3d 971, 978 n.3 (11th Cir. 2012), cert. denied, __ U.S. __, 133
S. Ct. 288, 184 L. Ed. 2d 169 (2012) (stating that the position taken by the Supreme
Court in Sykes appears to foreclose lower courts from concluding that the residual
clause is unconstitutionally vague).
AFFIRMED.
5