United States v. Bernall

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
MARCH 9, 2011
No. 10-10398 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 8:09-cr-00258-SCB-TGW-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
PAUL BERNALL,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 9, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Paul Bernall appeals his convictions and sentences following his
convictions for (1) conspiring to possess with intent to distribute five kilograms or
more of cocaine, in violation of 21 U.S.C. §§ 841 and 846 (“Count One”);
(2) using and carrying a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”); and (3) possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count
Three”). Ultimately, the district court sentenced Bernall to mandatory life
imprisonment on Count One, a 60-month consecutive term on Count Two, and a
180-month concurrent term on Count Three. On appeal, he raises nine arguments
related to his convictions and sentences. After careful review, we affirm.
First, Bernal’s constitutional arguments pertaining to § 922 (g) are
foreclosed by precedent. See United States v. Wright, 607 F.3d 708, 715 (11th
Cir. 2005). Second, Bernall’s argument that § 924(c) is an unconstitutional
extension of Congress’s Commerce Clause power is also foreclosed by this
Court’s precedent. United States v. Ferreira, 275 F.3d 1020, 1028 (11th Cir.
2001). Third, this Court has likewise previously held that the circumscription of a
convicted felon’s right to bear arms, as found in § 922(g)(1), does not violate the
Second Amendment. United States v. Rozier, 598 F.3d 768, 771 (11th Cir.), cert.
denied, 130 S.Ct. 3399 (2010). With reference to the claim that the district court
erred in giving the reasonable doubt jury instruction, we find that this Court has
expressly approved the language that the district court used and conclude that the
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jury instruction did not misstate the law, mislead the jury, or lower the
government’s burden of proof.
As to sentencing, Bernall’s mandatory life sentence on Count One, pursuant
to § 841(b)(1)(A), does not violate the Eighth Amendment’s prohibition against
cruel and unusual punishment. In the case of an offense involving five kilograms
or more of cocaine, § 841(b)(1)(A)(ii) provides that if the defendant has two prior
felony drug convictions that have become final, the defendant “shall be sentenced
to a mandatory term of life imprisonment without release.” 21 U.S.C.
§ 841(b)(1)(A)(ii). In United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992),
this Court held that a mandatory minimum sentence of life in prison imposed for a
conviction under 21 U.S.C. § 841(b)(1)(A), imposed as a result of having two
prior drug convictions, did not violate the Eighth Amendment’s prohibition on
cruel and unusual punishment.
Bernall also argues that his life sentence on Count One must be vacated
because the district court failed to follow the proper procedure under § 851.
Specifically, the district court did not (1) ask Bernall to affirm or deny the
convictions or (2) inform Bernall that he could not challenge any prior conviction
after the court sentenced him. We reject this argument because (1) Bernall did not
object to the validity of the convictions, (2) the court asked Bernall whether he
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affirmed or denied his prior convictions, (3) his attorney affirmed that the
convictions were valid and (4) Bernall does not argue that he could assert a valid
challenge to any of the convictions used to support the § 851 enhancement.
Next, as Bernall recognizes, the Supreme Court has held that the Sixth
Amendment does not require the government to allege in its indictment or to prove
beyond a reasonable doubt that a defendant’s prior convictions qualify him for
enhanced sentencing. Almendarez-Torres v. United States, 523 U.S. 224, 226-27,
118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998). Thus there is no merit to this
claim.
We must also reject Bernal’s argument that the district court erred by using
his Florida felony battery conviction to enhance his sentence on Count Three.
Since Bernall received a concurrent life sentence and he apparently had three
qualifying ACCA convictions, any error related to the Florida conviction is, at
most, harmless error.
Finally, Bernall’s argument regarding his consecutive sentence is foreclosed
by the Supreme Court’s decision in Abbott v. United States, __ U.S. __, 131 S.Ct.
18, 178 L.Ed.2d 348 (2010), holding that “a defendant is subject to a mandatory,
consecutive sentence for a § 924(c) conviction, and is not spared from that
sentence by virtue of receiving a higher mandatory minimum on a different count
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of conviction.” Id. at 23; see also United States v. Segarra, 582 F.3d 1269, 1272-
73 (11th Cir. 2009), cert. denied, 131 S.Ct. 633 (2010) (concluding that the plain
language of §924(c) requires consecutive sentences for a defendant convicted of a
§ 924(c) offense and an underlying drug crime).
For all of the foregoing reasons, Bernal’s convictions and sentences are
AFFIRMED.
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