                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-11966                ELEVENTH CIRCUIT
                                                            JANUARY 7, 2010
                         Non-Argument Calendar
                                                               JOHN LEY
                       ________________________
                                                             ACTING CLERK

                   D. C. Docket No. 08-21080-CR-JEM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

COREY MIMS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (January 7, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Corey Mims appeals his conviction and sentence for possession of a firearm

as a convicted felon. He argues that (1) the firearm and ammunition he possessed

did not substantially affect interstate commerce, (2) he did not knowingly possess

the firearm and ammunition, (3) the district court violated the Fifth and Sixth

Amendments by sentencing him in excess of the statutory maximum based on facts

that were not charged in the indictment or found by the jury, and (4) he should not

have been sentenced as a career offender, because his prior state burglary

convictions did not qualify as violent felonies. For the reasons set forth below, we

affirm.

                                          I.

      Mims was charged with possession of a firearm as a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He pleaded not guilty and

proceeded to trial.

      At trial, Lazaro Rial, a detective with the Miami-Dade Police Department

(MDPD), testified that, on November 19, 2008, he and his partner, Jacyn Goble,

observed Mims’s vehicle driving with the headlights turned off. Rial and Goble

attempted to conduct a traffic stop, and Mims, upon seeing the patrol car, ran a stop

sign. Rial and Goble activated their emergency lights and Mims pulled over on the

side of the road, exited his vehicle, and ran northbound. Rial determined that no



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one else was inside the vehicle and, upon further inspection, located a firearm

between the driver’s seat and the center console. Rial stated that the firearm was

easily visible from outside the vehicle and was well within reach of a person sitting

in the driver’s seat of the vehicle. Eventually, Mims was apprehended, returned to

the scene, and identified. Officers determined that the vehicle Mims was driving

belonged to Mims’s girlfriend.

      Jacyn Goble, the MDPD detective working with Rial on November 19,

2008, testified that, after a perimeter had been established, he returned to Mims’s

vehicle and observed the firearm inside the car. He stated that the firearm was

“wedged between the . . . driver’s seat and the center console.”

      Teddy Harley, a latent fingerprint examiner for the MDPD, testified that he

was not able to find any fingerprints of value on the firearm that was found in the

vehicle Mims was driving. He also was not able to recover any fingerprints of

value from the ammunition found inside the firearm.

      Carl Rousseau, a detective with the MDPD, testified that he interviewed

Mims on the night he was arrested. After waiving his Miranda1 rights, Mims told

Rousseau that he had been at his aunt’s house earlier in the day when a friend of

his, named Justin, asked Mims to give him a ride. Mims agreed and drove Justin a



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          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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short distance. As Justin exited the vehicle, he offered Mims $10 for the ride and

also asked Mims if he would hold onto a firearm for him. Justin gave the firearm

to Mims and Mims “placed it in the center console wedged between the front

driver’s seat.” Mims stated that a short time after dropping off Justin, he observed

a marked police vehicle behind him. Mims told Rousseau that he drove a short

distance, quickly pulled over, exited the vehicle, and fled on foot.

      The parties stipulated that the firearm and ammunition found in the vehicle

“traveled in interstate or foreign commerce prior to November 19, 2008.” Mims

moved for a judgment of acquittal, which the court denied, and both sides rested.

The jury found Mims guilty of possessing a firearm as a convicted felon.

      The presentence investigation report (“PSI”) initially set Mims’s base

offense level at 24, pursuant to § 2K2.1(a)(1). However, it noted that Mims had

five prior convictions that qualified him as an armed career criminal – (1) strong

arm robbery; (2) possession with intent to sell or deliver cocaine within 1000 feet

of a school; (3) possession of cocaine with intent to sell, manufacture, or deliver;

(4, 5) burglary of an unoccupied structure. Pursuant to § 4B1.4(a), Mims’s base

offense level was enhanced to 33. Mims did not receive any enhancements or

adjustments, so his total offense level remained 33. Because Mims was considered

an armed career criminal, he was placed in criminal history category VI. Based on



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total offense level 33 and criminal history category VI, Mims’s applicable

guideline imprisonment range was 235 to 293 months.           The PSI noted that,

pursuant to 18 U.S.C. § 924(e), Mims was subject to a mandatory minimum of 15

years’ imprisonment. Mims filed an objection to the PSI, asserting that his prior

burglary of a structure convictions were not proper predicate offenses for purposes

of the armed career criminal enhancement.

      At sentencing, Mims objected to the use of his prior burglary of a structure

convictions to qualify him as an armed career criminal. Both parties, as well as the

court and the probation officer, acknowledged that Mims would still be considered

an armed career criminal, even if his burglary of a structure convictions were not

considered qualifying offenses. The court overruled Mims’s objection, but noted

that it was “not going to hold it against him,” and that “it doesn’t make a nickel’s

worth of difference” whether the convictions qualified, because Mims would be

sentenced as a career offender regardless of the court’s ruling. The court stated

that it had considered the statements of the parties, as well as the PSI, advisory

guidelines, and statutory factors. It sentenced Mims to a term of 235 months’

imprisonment, followed by 4 years of supervised release. At the conclusion of the

proceeding, Mims renewed his prior objections.




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                                         II.

      Interstate Commerce

      Constitutional challenges raised for the first time on appeal are reviewed for

plain error. United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). Under

the plain error standard, a defendant must show (1) error, (2) that is plain, and (3)

that affects substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019

(11th Cir. 2005). We may exercise our discretion to correct a plain error if the

error “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id.

      Section 922(g)(1) makes it unlawful for any person

         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 or foreign commerce.

18 U.S.C. § 922(g)(1). The Commerce Clause permits Congress to regulate three

broad categories of activities – including activities that “substantially affect

interstate commerce.”    United States v. Scott, 263 F.3d 1270, 1273 (11th Cir.

2001). With respect to § 922(g), we have determined that the Commerce Clause’s

interstate nexus requirement is met if the government shows that the firearm

possessed had previously traveled in interstate commerce, id. at 1273-74, and has,

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therefore, rejected arguments that § 922(g) is facially unconstitutional. See id.;

United States v. McAllister, 77 F.3d 387, 389-90 (11th Cir. 1996).

      As explained above, Mims’s argument that § 922(g) is facially invalid is

foreclosed by binding precedent. See Scott, 263 F.3d at 1273-74; McAllister, 77

F.3d at 390. His argument that § 922(g) is unconstitutional as applied in his case,

is also meritless, because he stipulated that the firearm he possessed had “traveled

in interstate or foreign commerce.” See Scott, 263 F.3d at 1273-74; McAllister, 77

F.3d at 390. Accordingly, Mims has failed to show any error, let alone plain error.

      Knowing Possession of Firearm

      We review de novo challenges to the sufficiency of the evidence in criminal

cases. United States v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). We “must

view the evidence in the light most favorable to the government, drawing all

reasonable inferences and credibility determinations in favor of the verdict.”

United States v. Simpson, 228 F.3d 1294, 1299 (11th Cir. 2000).

      To obtain a conviction for being a felon in possession of a firearm, the

government must prove, inter alia, that the defendant was “in knowing possession

of a firearm.”   United States v. Glover, 431 F.3d 744, 748 (11th Cir. 2005).

“Possession can be either actual or constructive.” Id. “Constructive possession

exists where a defendant has ownership, dominion, or control over an object itself



                                         7
or dominion or control over the premises or the vehicle in which the object is

concealed.” United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).

        Here, the evidence is sufficient to establish that Mims had possession of the

firearm that was found in the vehicle he was driving. Mims was the driver and the

only occupant of the vehicle; therefore, although he may not have been the owner,

he did have dominion or control over the vehicle in which the firearm was

concealed. See id. Moreover, Mims admitted taking possession of the firearm

from Justin. It is also clear from the evidence that Mims knowingly possessed the

firearm, because he told Rousseau that he took the firearm from Justin and placed

it in between the driver’s seat and center console, where it was ultimately found by

Rial.

        Statutory Maximum – Fifth and Sixth Amendment Concerns

        Mims was sentenced pursuant to § 4B1.4(a), which states, “[a] defendant

who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)

is an armed career criminal.”      U.S.S.G. § 4B1.4(a).     Section 924(e) states, in

relevant part, that “a person who violates section 922(g) of this title and has three

previous convictions by any court . . . for a violent felony or a serious drug offense,

or both . . . shall be . . . imprisoned not less than fifteen years.”       18 U.S.C.

§ 924(e)(1).



                                           8
      In Almendarez-Torres, the Supreme Court held that prior convictions

“relevant only to the sentencing of an offender found guilty of the charged crime”

do not need to be charged in an indictment or proved to a jury beyond a reasonable

doubt. Almendarez-Torres, 523 U.S. at 239-47, 118 S.Ct. at 1229-33 (holding that

the factual issue of whether a defendant has been convicted of an “aggravated

felony” for 8 U.S.C. § 1326(b)(2) enhancement purposes is not required to be

alleged in the indictment).   The Supreme Court, in deciding Apprendi, stated

explicitly that its decision did not question the validity of its holding in

Almendarez-Torres. See Apprendi v. New Jersey, 530 U.S. at 489-90, 120 S.Ct. at

2362 (holding that it is a Sixth Amendment violation for a sentencing court to

enhance a defendant’s sentence beyond the statutory maximum based on facts that

were not proven to a jury beyond a reasonable doubt or expressly admitted by the

defendant).

      We reiterated in United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.

2005), that the holding in Almendarez-Torres was not affected by Apprendi or the

subsequent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160

L.Ed.2d 621 (2005) (holding that mandatory enhancements under the Sentencing

Guidelines must be based on facts found by a jury or admitted by the defendant),

and a district court does not err when it uses prior convictions to enhance a



                                        9
defendant’s sentence. Finally, in United States v. Greer, 440 F.3d 1267, 1273-76

(11th Cir. 2006), we specifically held that prior convictions did not have to be

found by a jury in order to be used to enhance a sentence pursuant to § 924(e).

Accordingly,    because    binding    precedent,    particularly   the   holdings    in

Almendarez-Torres and Greer, specifically permit the district court to enhance

sentences based on prior convictions that were not proven to a jury beyond a

reasonable doubt or expressly admitted by the defendant, Mims has failed to show

that the district court plainly erred in enhancing his sentence under § 924(e).

      Armed Career Criminal Enhancement

      We need not determine whether Mims’s prior burglary of an unoccupied

structure offense was a proper predicate offense for the armed career criminal

enhancement, because the enhancement would have been properly applied even if

his burglary of a structure offenses were not counted.         See In re Grand Jury

Proceedings, 142 F.3d 1416, 1420-21 (11th Cir. 1998) (noting that “[a] federal

court has no authority ‘to give opinions on moot questions or abstract propositions,

or to declare principles or rules of law which cannot affect the matter in issue in the

case before it’”) (quoting Church of Scientology v. United States, 506 U.S. 9, 12,

113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992)). As noted by the PSI and the district

court, Mims had three other convictions that would qualify him as an armed career



                                          10
criminal. Mims did not object to the inclusion of these three offenses, and he

concedes that these offenses are proper predicate offenses for the enhancement.

See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (noting that

where a defendant fails to object to factual statements in the PSI, the facts are

deemed admitted as true).     Accordingly, we affirm Mims’s conviction and

sentence.

      AFFIRMED.




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