United States v. James Joseph Bryant

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12283
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES JOSEPH BRYANT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cr-00188-PGB-TBS-1
____________________
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2 Opinion of the Court 19-12283
Before WILSON, BRASHER, and ABUDU, Circuit Judges.
PER CURIAM:
James Joseph Bryant appeals his sentence of 120-months’ im-
prisonment and 5 years’ supervised release for firearm possession
as a felon, arguing that: (1) the district court lacked jurisdiction be-
cause the indictment failed to allege that Bryant knew he was a
felon; (2) the district court erred in accepting Bryant’s plea because
he was not informed that the government had to prove he was a
felon; (3) the felon-in-possession statute exceeds congressional
power under the Commerce Clause; (4) the district court erred in
sentencing him under the Armed Career Criminal Act (ACCA) be-
cause his prior Florida conviction for aggravated assault does not
qualify; (5) the district court erred in sentencing him under ACCA
because the fact that his prior convictions were separate occasions
was not an element of the offenses, proven to a jury beyond a rea-
sonable doubt, or admitted by Bryant; and (6) the district court
erred in sentencing Bryant above 18 U.S.C. § 924(a)(2)’s maximum
penalty and the ACCA requirements were not charged in an indict-
ment and proven to a jury beyond a reasonable doubt. After care-
ful review, we affirm.
I. Background
In August 2018, Bryant was charged by indictment with pos-
sessing a firearm as a convicted felon. The indictment charged that
Bryant:
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having been previously convicted in any court of a
crime punishable by imprisonment for a term exceed-
ing one year, including [four prior convictions], did
knowingly possess, in and affecting interstate com-
merce, a firearm and ammunition, that is, a 9 mm
Jimenez Arms, model JA Nine, pistol and Winchester
ammunition. In violation of 18 U.S.C. §§ 922(g)(1)
and 924(e).
The presentence investigation report (PSR) recommended
that Bryant be sentenced pursuant to ACCA due to the four prior
qualifying convictions: aggravated battery, aggravated assault, and
two counts of possession of cocaine base with intent to distribute
on different occasions, January 8, 1999, and January 15, 1999, re-
spectively, that were resolved in the same federal case. Bryant
never objected to the PSR’s statement of the offense dates or the
recommendation that the district court sentence him under ACCA
based on those crimes. Ultimately, Bryant entered a guilty plea
pursuant to a plea agreement in September 2018. The district court
found the sentencing guidelines range to be 180 months, in part
because of ACCA’s application. While deciding ACCA applied, the
district court ultimately imposed a prison term of 10 years (120
months) and a supervised release term of 5 years on May 29, 2019.
II. The District Court Did Not Lack Jurisdiction
“We review questions of subject matter jurisdiction de
novo.” United States v. Morales, 987 F.3d 966, 978 (11th Cir. 2021).
However, “[u]nder the prior precedent rule, we are bound to fol-
low a prior binding precedent ‘unless and until it is overruled by
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4 Opinion of the Court 19-12283
this court en banc or by the Supreme Court.’” United States v. Vega-
Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States
v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). A case is overruled
only when there is actual conflict, not when there is merely incon-
sistent reasoning. Id. at 1237.
Someone previously convicted of a felony may not possess
a firearm “in or affecting commerce.” 18 U.S.C. § 922(g). At the
time Bryant possessed the firearm, 18 U.S.C. § 924(a) provided that
“[w]hoever knowingly violates subsection . . . (g) . . . of section 922
shall be fined as provided in this title, imprisoned not more than 10
years, or both.” 18 U.S.C. § 924(a)(2) (2006) (amended 2018 and
2022). We have applied the Supreme Court holding from Rehaif v.
United States 1 to say that “18 U.S.C. § 922(g), when read in conjunc-
tion with § 924(a)(2), requires not only that the defendant know
that he possesses a firearm, but also . . . know that he is a felon.”
United States v. Bates, 960 F.3d 1278, 1295 (11th Cir. 2020).
Generally, “[t]he standard for whether an indictment suffi-
ciently alleges a crime is not demanding. An indictment tracking
the statutory language and stating approximately the time and
place of an alleged crime is sufficient.” United States v. Moore, 954
F.3d 1322, 1332 (11th Cir. 2020). An omission of an element of a
crime “does not strip the district court of jurisdiction.” Id. at 1334.
Specific to this statute, omission of the knowledge-of-felon-status
element is not jurisdictional. Id. at 1336 (noting that Rehaif reached
1 139 S. Ct. 2191 (2019).
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the merits and did not dismiss for lack of jurisdiction). We have
further held that 18 U.S.C. § 924(a) need not be charged in addition
to § 922(g), because § 922(g) is already a complete criminal prohi-
bition. Id. at 1337.
Here, prior precedent establishes that failure to allege
knowledge of felony status or charge a violation of § 924(a) does
not compromise the subject matter jurisdiction of the district
court. While this omission may render an indictment insufficient,
as held in Moore, this fact alone will not invalidate jurisdiction. Id.
at 1334. Therefore, Bryant’s claim to the contrary cannot stand,
and jurisdiction was not implicated in this case.
III. The District Court Did Not Plainly Err in Accepting
Bryant’s Guilty Plea
We “review[] the issue of a Fed. R. Crim. P. Rule 11 viola-
tion for plain error when it was not raised before the district court.”
United States v. James, 210 F.3d 1342, 1343 (11th Cir. 2000). Plain
error places the burden on the defendant to establish (1) an error;
(2) that is plain; (3) that has affected the defendant’s substantial
rights; and (4) the error seriously affects “the fairness, integrity or
public reputation of judicial proceedings.” Greer v. United States,
141 S. Ct. 2090, 2096–97 (2021). For an error to be plain, the issue
must be specifically resolved by the operative text or by precedent
from us or the Supreme Court. United States v. Lejarde-Rada, 319
F.3d 1288, 1291 (11th Cir. 2003).
When a defendant seeks to invalidate a guilty plea on Rule
11 grounds, under plain error review, the defendant must
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demonstrate his substantial rights were affected by “show[ing] a
reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004). The Supreme Court has suggested that at least a certain
class of constitutional error relieves the defendant of this obliga-
tion. Id. at 84 n.10 (noting that “when the record of a criminal con-
viction obtained by guilty plea contains no evidence that a defend-
ant knew of the rights he was putatively waiving, the conviction
must be reversed” (citation omitted)). However, neither we nor
the Supreme Court have made a distinction between the Rule 11
and due process analyses in cases analyzing Rehaif errors; both have
required the defendant to show a reasonable probability that, but-
for the error, they would not have pled guilty. Greer, 141 S. Ct. at
2096–98; Bates, 960 F.3d at 1295–96; United States v McLellan, 958
F.3d 1110, 1118–20 (11th Cir. 2020). We review the whole record
to determine if there was a substantial effect on the defendant’s
rights. United States v. Dudley, 5 F.4th 1249, 1256 (11th Cir. 2021).
In Greer, the Supreme Court held that the defendant had not
established plain error for failure to inform him that the govern-
ment would be required to prove that he knew he was a felon, in
part because “[i]f a person is a felon, he ordinarily knows he is a
felon.” 141 S. Ct. at 2097. We have reviewed other evidence that
the defendants making challenges under Rehaif knew they were fel-
ons. Moore, 954 F.3d at 1337–38 (noting defendants had served
lengthy sentences, had previously been charged under § 922(g),
stipulated to their felony convictions, and one bore a tattoo stating
the duration of his prior sentence).
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Here, Bryant’s claim does not survive plain error review. As
an initial matter, it was plainly erroneous for the district court not
to inform Bryant that the government would be required to prove
his knowledge of felony status, and this error is the only defect in
his plea colloquy. But Bryant has not asserted that he would not
have pled guilty had he been properly informed. Moreover, he
likely knew he was a felon as he had been released from a 160-
month sentence in 2011, something he is unlikely to forget, and
expressed no confusion at being classed as a felon. The bottom
line: Bryant has not alleged he did not know he was a felon, nor has
he shown a reasonable probability that he would not have pled
guilty absent the error. Therefore, under plain error review, Bry-
ant’s claim necessarily fails.
IV. 18 U.S.C. § 922(g) is Constitutional
Challenges to the constitutionality of statutes are reviewed
de novo if raised below and otherwise for plain error. United States
v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
As a preliminary matter, Congress has the power “[t]o regu-
late Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.
However, as demonstrated in United States v. Lopez, 2 Congressional
acts will be struck down when they lack a jurisdictional element
ensuring the prohibition in question affects interstate commerce.
2 514 U.S. 549, 561–62 (1995) (striking down a prohibition on possessing fire-
arms near schools in part because it lacked a jurisdictional element).
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Congressional prohibitions will also not pass muster if the claimed
effects on interstate commerce are considered too attenuated.
United States v. Morrison, 529 U.S. 598, 614–18 (2000). Neither Lopez
nor Morrison struck down § 922(g). Importantly, we have upheld
§ 922(g) against challenges that it exceeds congressional authority
under the Commerce Clause, noting that it requires the firearm to
have traveled in interstate commerce. Wright, 607 F.3d at 715–16.
We review the § 922(g)’s constitutionality for plain error, as
Bryant raises the issue for the first time on appeal. The district
court did not plainly err because neither the text of the Commerce
Clause nor any binding caselaw resolves this issue in Bryant’s favor.
Though Bryant relies on Lopez and Morrison, both are distinguisha-
ble. In both Lopez and Morrison, the Supreme Court held the req-
uisite jurisdictional element in the statutes at issue was lacking.
Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 613. Our court has
found that the requisite jurisdictional element in § 922(g) has been
met, as established in Wright, and therefore § 922(g) survives under
a constitutional challenge. In sum, the caselaw that exists upholds
§ 922(g) against challenges like Bryant’s under plain error, and his
claim fails.
V. Aggravated Assault Qualifies as a Violent Felony Un-
der ACCA
If not raised below, whether a defendant qualifies under
ACCA will be reviewed only for plain error. United States v. Jones,
743 F.3d 826, 829 (11th Cir. 2014).
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ACCA provides that “a person who violates section
922(g) . . . and has three previous convictions . . . for a violent fel-
ony or a serious drug offense, or both, committed on occasions dif-
ferent from one another” is to be given an enhanced sentence. 18
U.S.C. § 924(e)(1). “[T]he term ‘violent felony’ means any crime
punishable by imprisonment for a term exceeding one year . . .
that-- (i) has as an element the use, attempted use, or threatened
use of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B). To determine whether a state crime qualifies, courts
apply the categorical approach. United States v. Vereen, 920 F.3d
1300, 1313 (11th Cir. 2019). This approach requires examining the
elements of the state crime to determine if the minimal conduct
which could result in a conviction satisfies the definition of an
ACCA predicate. Id.; United States v. Jackson, 55 F.4th 846, 850 (11th
Cir. 2022) (“[F]ederal law binds our construction of ACCA, and
state law governs our analysis of elements of state-law crimes.”).
No crime which may be committed with the mens rea of reckless-
ness satisfies the definition of violent felony. Borden v. United States,
141 S. Ct. 1817, 1825 (2021) (plurality opinion).
Under the categorical approach, courts “consult the law that
applied at the time of that conviction.” McNeill v. United States, 563
U.S. 816, 820 (2011) (applying the statutes in effect at the time of
the contested conviction). However, “[w]hen the Florida Supreme
Court . . . interprets [a] statute, it tells us what that statute always
meant,” so prior differing interpretations do not alter whether con-
victions qualify, even if the conviction occurred while the
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interpretation was binding. United States v. Fritts, 841 F.3d 937, 942–
43 (11th Cir. 2016).
Florida law criminalizes “aggravated assault,” defined as “an
assault: (a) With a deadly weapon without intent to kill; or (b) With
an intent to commit a felony.” Fla. Stat. § 784.021(1) (1975)
(amended 2021). The Florida Supreme Court, in 2022, interpreted
aggravated assault to “require[] not just the general intent to voli-
tionally take the action of threatening to do violence, but also that
the actor direct the threat at a target, namely, another person.”
Somers v. United States, 355 So. 3d 887, 892–93 (Fla. 2022). We have
held, in reliance on that interpretation, that Florida law aggravated
assault requires knowing conduct and qualifies as a violent felony
under ACCA. Somers v. United States, 66 F.4th 890, 894 (11th Cir.
2023).
We review whether Bryant’s Florida law aggravated assault
conviction qualifies under ACCA for plain error. Bryant was con-
victed of aggravated assault under Florida law in 1993. The Florida
Supreme Court has interpreted the statute as requiring intent and
we have, therefore, found that Florida aggravated assault convic-
tions qualify under ACCA. This interpretation states what Florida
law always was and prior interpretations of the statute, even if
binding on the court wherein Bryant was convicted, make no dif-
ference. To the extent Bryant argues that he was not properly con-
victed under this interpretation of the statute, the validity of his
conviction is not at issue. Therefore, Bryant’s claim fails under
plain error review.
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VI. Bryant’s Prior Convictions Were Properly Deter-
mined to be Separate Offenses, Qualifying Him for
ACCA Sentencing
ACCA only applies if the qualifying prior offenses occurred
on separate occasions. 18 U.S.C. § 924(e)(1). We “determine
whether two offenses occurred on the same ‘occasion’ based on the
ordinary meaning of the word.” United States v. Penn, 63 F.4th 1305,
1318 (11th Cir. 2023). “Several factors may be relevant to that de-
termination: the amount of time between offenses, the proximity
of the locations where the offenses occurred, and whether the of-
fenses are part of the same scheme or achieve the same objective.”
Id. However, one factor may be dispositive. Id. For example, a
defendant’s two cocaine sales one month apart “no more occurred
on the same occasion than two baseball games between the same
teams at the same stadium one month apart.” Id.We have held that whether offenses occurred on separate oc-
casions is a separate inquiry from the categorical approach used to
determine whether the offense qualifies under ACCA. Dudley, 5
F.4th at 1258–59. Therefore, the district court need not rely solely
on the elements of the prior offenses to determine if they occurred
on the same occasion. Id.
A district court may rely on any statements in the PSR that
the defendant did not object to “with specificity and clarity.” United
States v. Bennett, 472 F.3d 825, 832–33 (11th Cir. 2006). However,
“[w]here a defendant objects to the factual basis of his sentence,
the government has the burden of establishing the disputed fact.”
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Id. at 832. Notably, we have rejected the argument that Descamps v.
United States 3 and Mathis v. United States 4 require jury trials to find
separate occasions. Dudley, 5 F.4th at 1265.
We review the district court’s findings that Bryant’s prior of-
fenses occurred on separate occasions for plain error. While Bryant
initially objected to the facts of his prior offenses as described in the
PSR, these objections appear to have been withdrawn or forfeited
between the time the PSR was prepared and sentencing. Bryant
agreed with the facts as reported in the PSR, twice stating at sen-
tencing that he did not object to the facts in the PSR. Therefore,
the district court was free to rely on those facts at sentencing. The
facts reported by the PSR establish that Bryant’s Florida law aggra-
vated assault conviction and his two possessions with intent to dis-
tribute convictions occurred on different dates, separated by no less
than seven days. They were, thus, on separate occasions, and Bry-
ant’s sentence withstands plain error review.
VII. Bryant’s ACCA-Enhanced Sentence Does Not Plainly
Violate the Fifth and Sixth Amendments
The argument that “judicially determining whether prior
convictions were committed on different occasions from one an-
other for [ACCA] purposes” violates the Fifth and Six Amendments
has been “repeatedly rejected” by this court. Dudley, 5 F.4th at 1260.
We have held that a defendant’s prior convictions and the dates he
3 570 U.S. 254 (2013).
4 579 U.S. 500 (2016).
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19-12283 Opinion of the Court 13
committed the crimes need not be alleged in the indictment, ad-
mitted in the defendant’s plea, or proven beyond a reasonable
doubt. See id. “[W]here there is evidence of confirmation of the
factual basis for the plea by the defendant—be it express or implicit
confirmation—a federal sentencing court is permitted to rely on
those facts to conduct the different-occasions inquiry.” Id. at 1262.
Because Bryant did not raise the issue below, we review this
issue for plain error. As our precedent clearly affirms, the judicial
determination of the different-occasions inquiry is not violative of
the Fifth and Sixth Amendments. Here, Bryant confirmed the fac-
tual basis of his plea, and the district court used that information
to determine his sentencing under ACCA. None of these acts in-
fringed upon Bryant’s Fifth or Sixth Amendment rights, and the
district court did not err, much less plainly err, in sentencing Bryant
in light of that information.
AFFIRMED.