                                                                       [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                JUNE 20 2000
                        ________________________
                                                             THOMAS K. KAHN
                                                                  CLERK
                              No. 99-12953
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 97-06177-CR-WJZ


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

     versus


STEPHEN GENE REYNOLDS,

                                                           Defendant-Appellant..

                       __________________________

              Appeal from the United States District Court for the
                         Southern District of Florida
                        _________________________
                               (June 20, 2000)


Before EDMONDSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Stephen Reynolds appeals his conviction and 180-month sentence for

possession of a firearm by a convicted felon. On appeal, Reynolds contends that his

conviction should be reversed because the government failed to prove that the firearm

had a connection with interstate commerce. He further argues that his sentence should

be vacated and remanded because: (1) the application of the armed-career-criminal

enhancement, requiring that Reynolds be subject to a 15-year mandatory minimum

sentence, violated the Ex Post Facto Clause and the Eighth Amendment prohibition

against cruel and unusual punishment; and (2) the district court erred in denying

Reynolds a downward departure based on a lesser harms theory.

      We review the constitutionality of statutes de novo. See Gay Lesbian Bisexual

Alliance v. Pryor, 110 F.3d 1543, 1546 (11th Cir. 1997). We review issues raised for

the first time on appeal for plain error. See United States v. Williams, 121 F.3d 615,

618 (11th Cir. 1997), cert. denied, 523 U.S. 1065, 118 S.Ct. 1398, 140 L.Ed.2d. 656

(1998). Upon thorough review of the Presentence Investigation Report (“PSI”), the

sentencing hearing transcript, and all other relevant portions of the record, we find no

reversible error and affirm.

      The facts are straightforward. Pursuant to a written plea agreement, Reynolds

pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C.

§§922(g)(1) and 924(e)(1). Reyonlds, a convicted felon, pawned a Mossberg 12-



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gauge shotgun on March 18, 1997, and, soon thereafter, on April 4, 1997, he retrieved

the shotgun from the pawnshop. The shotgun was manufactured in Connecticut and

the pawnshop was located in Florida.          Reynolds had a series of prior felony

convictions, including a 1984 conviction for delivery of cocaine, a 1985 robbery

conviction, a 1990 aggravated battery conviction, a 1994 conviction for possession of

cocaine and cannabis, another battery conviction in 1995, and a 1997 conviction for

burglary.

      The Presentence Investigation Report recommended that Reynolds be sentenced

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §924(e), and its

corresponding sentencing guideline, U.S.S.G. §4B1.4, which impose a mandatory

minimum sentence of 15 years on those convicted under §922(g)(1) who have at least

three prior violent or drug-related felony convictions. The PSI listed three predicate

felony convictions, the 1984 cocaine conviction, the 1985 robbery conviction, and the

1994 conviction for possession of cocaine and cannabis. Reynolds objected to the

application of the armed career criminal enhancement, claiming that the use of the

1984 cocaine delivery offense was a violation of the Ex Post Facto Clause of the

United States Constitution because the ACCA was enacted in 1984 and did not

provide for drug related offenses to be used as predicate offenses until 1986, yet the

PSI used as a predicate a felony that predated the Act. He further claimed that



                                          3
application of the armed career criminal enhancement violated the Eighth

Amendment’s prohibition against cruel and unusual punishment because the conduct

in this case involved the mere possession of an otherwise legal shotgun which he

claims he possessed for the purpose of pawning to remove it from access by a

teenager. He also requested a downward departure pursuant to the “lesser harms”

guideline, U.S.S.G. §5K2.11, claiming that he committed the offense to avoid a

perceived greater harm.

      At sentencing, the district court summarily overruled both of Reynolds’s

constitutional challenges to the application of the armed career criminal enhancement.

Recognizing that the district court could not depart even if it wanted to because of the

mandatory minimum, defense counsel proffered to the court the testimony he would

have presented in support of a downward departure based on a lesser harms theory.

He claimed that, while Reynolds was helping his sister-in-law take care of her

children, he noticed that his nephew, a manic depressive who had many contacts with

law enforcement, had access to a firearm, which Reynolds took and brought to a

pawnshop. The district court added that if it had the authority, it would deny the

departure based on the facts and then sentenced Reynolds to the statutory minimum

of 180 months imprisonment.




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       First, we are unpersuaded by Reynolds’s argument that the application of the

ACCA to this case violates the Ex Post Facto Clause. The Ex Post Facto Clause of

the United States Constitution, Article 1, section 9, “bars laws that ‘retroactively alter

the definition of crime or increase the punishment for criminal acts.’” United States

v. Rosario-Delgado, 198 F.3d 1354, 1356 (11th Cir. 1999)(quoting California Dept.

of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588

(1995)). Two essential elements must be present for a criminal law to violate the Ex

Post Facto Clause: first, the law must be retrospective, that is, it must apply to events

occurring before its enactment; and second, it must disadvantage the offender affected

by it. Id.

       In this case, the ACCA was applied to Reynolds’s possession of a firearm in the

spring of 1997, more than ten years after the Act was enacted. Indeed, at the time of

Reynolds’s possession of the shotgun, plainly he was on notice that as a felon

convicted three times he would receive a 15-year mandatory minimum sentence if

convicted of violating 18 U.S.C. §922(g). In no sense did the statute impose or

increase punishment for a crime committed before its enactment. As the Supreme

Court observed in a similar case involving a sentencing enhancement on account of

three prior predicate offenses that had occurred before the Pennsylvania Habitual

Criminal Act was passed:



                                            5
      The sentence as a fourth offender or habitual criminal is not to be viewed
      as either a new jeopardy or additional penalty for earlier crimes. It is a
      stiffened penalty for the latest crime, which is considered to be an
      aggravated offense because a repetitive one.

Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948). We

hold that in applying the ACCA, the use of predicate felonies committed before the

ACCA was enacted does not violate the Ex Post Facto Clause.

      We agree with the Fourth Circuit that the ACCA’s use of prior felony

predicates, even where such convictions occurred before the effective date of the

ACCA, does not violate the Ex Post Facto Clause. See United States v. Etheridge,

932 F.2d 318, 323 (4th Cir.)(affirming a conviction for a felon in possession of a

firearm enhanced under 18 U.S.C. §924(e), even though each predicate offense

occurred before the enactment of §924(e)), cert. denied, 502 U.S. 917, 112 S.Ct. 323,

116 L.Ed.2d 264 (1991). Cf., United States v. Lozano, 138 F.3d 915, 916-17 (11th

Cir. 1998)(upholding the application of an enhancement under 8 U.S.C. §1326(a)

based upon the commission of a prior aggravated felony, although the defendant

committed the prior felony before the enactment of the enhancement).

      We are also unpersuaded by Reynolds’s argument that the district court erred

in finding that the sentence imposed pursuant to the ACCA did not violate the Eighth

Amendment’s prohibition against cruel and unusual punishment. “In non-capital

cases, the Eighth Amendment encompasses, at most, only a narrow proportionality


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principle.” United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995)(relying on

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).

Under Brant, a reviewing court must make a threshold determination that the sentence

imposed is grossly disproportionate to the offense committed and, if it is grossly

disproportionate, the court must then consider the sentences imposed on others

convicted in the same jurisdiction and the sentences imposed for commission of the

same crime in other jurisdictions. Brant, 62 F.3d at 368.

      Reynolds was sentenced pursuant to the armed career criminal provisions of

§924(e), and the mandatory sentence of 15 years imposed on him was not grossly

disproportionate to his offense of possession of a firearm by a three-time felon. His

predicate crimes include a serious drug offense, a robbery where he pretended to have

a gun and robbed a store clerk, and an aggravated battery where he detained the victim

while his codefendant struck the victim in the head with a closed fist. Nevertheless,

Reynolds argues that his recent possession of the firearm was for an innocent reason.

Sections 922(g) and 924(e)(1), however, do not focus on the motive or purpose of the

current possession of firearms, but rather on the fact that a person with three or more

violent felony or serious drug convictions currently possesses a firearm. See United

States v. Funches, 135 F.3d 1405, 1407 (11th Cir.)(stating that a §922 offense is a

strict liability offense and a defendant’s state of mind is generally irrelevant), cert.



                                           7
denied, 524 U.S. 962 (1998). The mandatory sentence of 15 years was not grossly

disproportionate to his offense.

      We add that every circuit to have considered this issue has concluded that the

15-year minimum mandatory sentence under ACCA is neither disproportionate to the

offense nor cruel and unusual punishment. See e.g., United States v. Cardoza, 129

F.3d 6, 18 (1st Cir. 1997)(affirming sentence of 235-month imprisonment for

possession of a single bullet in light of previous felony convictions); United States v.

Presley, 52 F.3d 64, 68 (4th Cir. 1995)(holding that a 15-year sentence under the

ACCA is neither disproportionate to the offense nor cruel and unusual punishment);

United States v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992)(upholding 15-year

sentence where the defendant had pawned a pistol and later retrieved it, allegedly for

a friend); United States v. Mitchell, 932 F.2d 1027, 1028 (2d. Cir. 1991)(dismissing

claim that 15 years’ imprisonment for violations of 18 U.S.C. §922(g) is cruel and

unusual punishment under the Eighth Amendment); United States v. Hayes, 919 F.2d

1262, 1266 (7th Cir. 1990)(holding that “‘[a] mandatory minimum sentence of fifteen

years for a defendant with three prior felony convictions (and who has now been

convicted of yet another felony) is not constitutionally disproportionate.’”)(quoting

United States v. Dombrowski, 877 F.2d 520, 526 (7th Cir. 1989), cert. denied, 496

U.S. 907, 110 S.Ct. 2592, 110 L.Ed.2d 272 (1990)); United States v. Baker, 850 F.2d



                                           8
1365, 1372 (9th Cir. 1988)(upholding15-year sentence in face of Eighth Amendment

challenge even though defendant testified that he did not know the guns were in his

car).

        We are also satisfied that the district court did not err in denying Reynolds a

downward departure based on a lesser harms theory under U.S.S.G. §5K2.11.

Generally, a defendant may not appeal a district court’s refusal to depart downward.

See United States v. Webb, 139 F.3d 1390, 1394 (11th Cir. 1998). A defendant may

appeal the court’s failure to depart downward, however, if the district court

erroneously believed it lacked the authority to depart. See id.

        Reynolds does not argue that the district court misconstrued its authority to

depart; he claims only that the court erred in not departing. Accordingly, he may not

appeal the court’s refusal to depart. Moreover, the statutes under which Reynolds

was convicted and sentenced provide for a mandatory minimum sentence of 15 years.

18 U.S.C. § §922(g)(1) and 924(e)(1). While there are limited circumstances where

a district court may impose a sentence beneath the statutory minimum, e.g., where the

government files a U.S.S.G. §5K1.1 motion for substantial assistance, see United

States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994), Reynolds has provided no

authority for a departure below the statutory minimum in this case.         In fact, at

sentencing, he conceded that the court could not depart. Because the district court did



                                           9
not have authority to sentence Reynolds below the statutorily required minimum

sentence, plainly it did not err in declining to depart downward.

      Finally, we are unpersuaded by Reynolds’s argument that the district court did

not have jurisdiction to adjudicate facts surrounding the pawning of a shotgun and

redeeming it because these transactions involved wholly intrastate activity. Because

Reynolds failed to raise this issue in the district court, we review only for plain error.

United States v. Williams, 121 F.3d 615, 618 (11th Cir. 1997), cert. denied, 523 U.S.

1065, 118 S.Ct. 1398, 140 L.Ed 2d 656 (1998). While a knowing and voluntary guilty

plea waives the right to appeal all nonjursidictional challenges to a conviction, see

United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998), a guilty plea

does not bar an appeal that raises a jurisdictional question. Id.

      The Commerce Clause of the United States Constitution provides in part: “The

Congress shall have the power ... [t]o regulate Commerce with foreign Nations, and

among the several states.” U.S. Const. art. I, §8. Section 922(g)(1), under which

Reynolds was convicted, provides in pertinent part that :

             It shall be unlawful for any person–
             (1) who has been convicted in any court, of a crime
             punishable by imprisonment for a term exceeding one year
             ...
      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 commerce or foreign commerce.


                                           10
18 U.S.C. §922(g)(1). We have held that as long as the weapon in question had a

“minimal nexus” to interstate commerce, §922(g)(1) is constitutional and the district

court has jurisdiction. See United States v. McAllister, 77 F.3d 387, 390 (11th Cir.),

cert. denied, 519 U.S. 905, 117 S.Ct. 262, 136 L.Ed 2d 187 (1996). The government

must prove, however, that the firearm possessed traveled in interstate commerce. See

id.; Cunningham, 161 F.3d at 1346.

      Here, the interstate commerce nexus has been shown because when Reynolds

pled guilty to being a felon in possession, he admitted all the elements of that offense

including that the firearm had been shipped or transported in interstate commerce.

Moreover, the government has shown that the 12-gauge shotgun was manufactured

in Connecticut and then traveled across state lines to Florida, where Reyonlds

possessed it. This movement is sufficient to show the required nexus to interstate

commerce. See McAllister, 77 F.3d at 388 (upholding conviction for possession of

a firearm by a felon where government proved that gun was manufactured in

California, shipped to South Carolina, and defendant possessed the gun only in

Georgia, where he bought it).

      Accordingly, we affirm.

      AFFIRMED.




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