           Case: 18-10956   Date Filed: 03/29/2019    Page: 1 of 18


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10956
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:17-cr-00090-SDM-MAP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ISAAC THOMAS,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 29, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Isaac Thomas appeals his convictions for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (“Count 1”), and possession of a firearm within 1,000 feet of a school

zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“Count 2”). For the

first time on appeal, Thomas argues that both his Count 1 and Count 2 firearm

convictions should be vacated because the § 922(g)(1) and (q) statutes violate the

Commerce Clause and are therefore unconstitutional. Thomas also contends that

his Count 1 conviction should be vacated because his indictment and plea colloquy

were deficient by failing to establish that he knew that he was a convicted felon at

the time he possessed the firearm. After careful review, we affirm Thomas’s

convictions.

                         I. FACTUAL BACKGROUND

A.    Offense Conduct

      In January 2017, a fight broke out at a basketball game at a public high

school in Plant City, Florida. After the game ended, several people, including

Thomas, resumed the fight a few blocks away from the school. Local law

enforcement officers responded to the scene.

      One officer saw Thomas holding a firearm, which Thomas fired. Thomas

then took his firearm, ran down a road, and got into a car. Officers pursued the car




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until it crashed. At that point, Thomas abandoned the car and fled on foot. As

Thomas attempted to flee, he was shot by an officer and apprehended.

      Officers recovered a Ruger 9 millimeter firearm, loaded with six live rounds

of 9 millimeter ammunition, approximately ten feet from where Thomas was

apprehended. They also found a spent 9 millimeter shell casing in the place where

Thomas was standing when he fired the weapon. In later interviews with law

enforcement officers, Thomas admitted to possessing the Ruger 9 millimeter

firearm and to firing it.

      As a result, a grand jury indicted Thomas on Count 1, possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

and Count 2, possession of a firearm within 1,000 feet of a school zone, in

violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4). Under Count 1, the

indictment alleged that Thomas was prohibited from possessing a firearm due to a

2012 felony conviction for attempted carjacking. The indictment did not allege

that Thomas was aware of his convicted felon status at the time of the instant

unlawful firearm possession.

B.    Guilty Plea

      Thomas pled guilty pursuant to a written plea agreement. The plea

agreement contained a factual basis, which established (1) Thomas’s convicted

felon status based on his 2012 attempted carjacking conviction, and (2) that the


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Ruger 9 millimeter firearm he possessed traveled in or affected interstate

commerce because it was manufactured outside of Florida, where the instant

offense occurred. Specifically, Alcohol, Tobacco, Firearms, and Explosives

Special Agent Walt Lanier examined the firearm and determined that it was

manufactured in Arizona. There was nothing in the plea agreement’s factual basis

indicating whether Thomas was aware of his prohibited felon status when he

possessed the firearm.

      At Thomas’s change-of-plea hearing, a magistrate judge asked Thomas if he

had a chance to discuss his plea agreement with his counsel, and Thomas said yes.

The magistrate judge summarized the elements of Thomas’s two charges. As to

Count 1, the magistrate judge stated that the government would be required to

prove that: (1) before possessing the firearm on or about January 20, 2017, Thomas

was a convicted felon whose rights had not been restored; (2) on or about January

20, 2017, Thomas knowingly possessed the Ruger 9 millimeter firearm; and (3) the

Ruger 9 millimeter firearm affected interstate commerce, that is, it was

manufactured outside the State of Florida. As to Count 2, the magistrate judge

explained that the government would be required to prove that: (1) Thomas

knowingly possessed the Ruger 9 millimeter firearm within 1,000 feet of a school

zone; (2) Thomas had reason to believe that he was in a school zone; (3) the




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firearm had traveled in or affected interstate commerce at some point during its

existence; and (4) Thomas acted knowingly.

      The magistrate judge asked Thomas if he understood his charges and the

elements of his offenses, and Thomas responded yes. Thomas then pled guilty to

Counts 1 and 2. After being questioned by the magistrate judge, Thomas also

confirmed that he was a convicted felon at the time he possessed the 9 millimeter

firearm near the school, and Thomas’s counsel stated that the government would

have been able to prove Thomas’s convicted felon status and that the firearm

traveled in interstate commerce.

      The magistrate judge then found that Thomas was competent and capable of

entering an informed plea, his plea was knowingly made, and his plea was

supported by an independent basis in fact containing all of the essential elements of

his offenses. The magistrate judge recommended that Thomas’s guilty plea be

accepted. Without objection, the district court accepted Thomas’s guilty plea and

adjudged him guilty.

C.    Sentencing

      Thomas’s presentence investigation report (“PSI”) assigned him a total

offense level of 34 and a criminal history category of III. Based on a total offense

level of 34 and a criminal history category of III, Thomas’s advisory guidelines

range was 188 to 235 months’ imprisonment.


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      However, the statutorily authorized maximum sentences for Count 1 under

§§ 922(g)(1) and 924(a)(2) and Count 2 under §§ 922(q)(2)(A) and 924(a)(4) were

less than the minimum of Thomas’s guidelines range of 188 to 235 months’

imprisonment. Under §§ 922(g)(1) and 924(a)(2), the maximum term of

imprisonment is ten years, and under §§ 922(q)(2)(A) and 924(a)(4), the maximum

term of imprisonment is five years. Also, the term of imprisonment for Count 2

under §§ 922(q)(2)(A) and 924(a)(4) had to run consecutive to any other term of

imprisonment imposed. See 18 U.S.C. § 924(a)(4). Therefore, Count 1’s adjusted

advisory guidelines range was reduced to 120 months’ imprisonment, the statutory

maximum. See U.S.S.G. § 5G1.1(a) (providing that, “[w]here the statutorily

authorized maximum sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the guideline

sentence.”). Count 2’s adjusted advisory guidelines range was reduced to 60

months’ imprisonment, the statutory maximum. See id.

      Thomas filed objections to the PSI that are not relevant to his appeal. Prior

to sentencing, Thomas also filed a sentencing memorandum and motion for a

downward variance, requesting that the district court impose a total sentence of 70

months’ imprisonment. In both his objections to the PSI and his sentencing

memorandum, Thomas did not argue (1) that § 922(g)(1) and (q) were




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unconstitutional, or (2) that the indictment or plea colloquy omitted an essential

element of either of his charges.

      At sentencing, the district court sustained some of Thomas’s objections and

revised his total offense level to 32. Thomas’s criminal history category remained

at III. Based on a total offense level of 32 and a criminal history category of III,

Thomas’s revised advisory guidelines range was 151 to 188 months’

imprisonment. See U.S.S.G. Ch. 5 Part A.

      The district court heard the parties’ sentencing arguments and Thomas’s

allocution. Thomas’s counsel requested a 70-month total sentence and the

government requested 180 months. Thomas’s counsel again did not raise any

constitutional challenges to § 922(g)(1) and (q) or argue that his indictment or plea

colloquy omitted essential elements.

      After considering the advisory guidelines range, the applicable statutory

penalties, and the 18 U.S.C. § 3553(a) factors, the district court imposed the

statutory maximum sentences of 120 months as to Count 1 and 60 months as to

Count 2, to run consecutively.

           II. 18 U.S.C. § 922(q): Possession of Firearm Near School

      On appeal and for the first time, Thomas argues that his Count 2 conviction

under 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) should be vacated because § 922(q)




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is unconstitutional, both facially and as applied. 1 He notes that in United States v.

Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), the Supreme Court struck down the

Gun-Free School Zones Act of 1990, which was an earlier version of § 922(q),

because it exceeded Congress’s powers under the Commerce Clause. Although

Congress amended § 922(q) to comply with Lopez, Thomas argues that the

amended version is still unconstitutional because it did not cure the Commerce

Clause problems identified in Lopez and United States v. Morrison, 529 U.S. 598,

120 S. Ct. 1740 (2000). We review Lopez, Morrison, and then the amended

version of § 922(q).

A.     Lopez and Morrison

       In 1995, the Supreme Court held that a prior version of § 922(q), also known

as the Gun–Free School Zones Act of 1990, was unconstitutional because it

exceeded Congress’s authority under the Commerce Clause. Lopez, 514 U.S. at

551, 561-63, 115 S. Ct. 1626, 1630-32; see Pub. L. No. 101–647, 101 Stat. 4789,



       1
         We generally review the constitutionality of a statute de novo. United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010). However, where a defendant raises a constitutional
challenge for the first time on appeal, we review only for plain error. Id. Under the plain error
rule, we will reverse a district court’s decision only if there is: “(1) error, (2) that is plain, []
(3) that has affected the defendant’s substantial rights,” and (4) that “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” United States v. Hesser, 800
F.3d 1310, 1324 (11th Cir. 2015) (quotation marks omitted). “An error is plain if it is obvious
and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).
“When the explicit language of a statute or rule does not specifically resolve an issue, there can
be no plain error where there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks
omitted).
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4844 (1990). The version of § 922(q) at issue in Lopez made it a federal offense

“knowingly to possess a firearm at a place that the individual knows, or has

reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551, 115 S. Ct.

at 1626.

      The Supreme Court held that this version of § 922(q) violated the Commerce

Clause because it did not limit the offense to situations substantially affecting

interstate commerce. Id. at 561, 115 S. Ct. at 1630-31. In particular, the Lopez

Court pointed out that § 922(q) “contain[ed] no jurisdictional element which would

ensure, through case-by-case inquiry, that the firearm possession in question

affect[ed] interstate commerce.” Id. at 561, 115 S. Ct. at 1631. The Court also

observed that neither § 922(q) nor its legislative history contained express

congressional findings regarding the effects upon interstate commerce of gun

possession in a school zone. Id. at 562-63, 115 S. Ct. at 1631-32.

      Subsequently in 2000, the Supreme Court struck down certain provisions of

the Violence Against Women Act as unconstitutional for exceeding Congress’s

authority under the Commerce Clause. Morrison, 529 U.S. at 605, 613, 617, 120

S. Ct. at 1747, 1751-52, 1754. While Morrison involved a wholly different statute,

Thomas cites Morrison for its dicta discussing the Lopez decision, its reasoning,

and its labeling of the “link between gun possession and a substantial effect on

interstate commerce” as attenuated. Id. at 609-14, 120 S. Ct. at 1749-52.


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B.    Post-Lopez Amendment to 18 U.S.C. § 922(q)

      Responding to Lopez, Congress amended § 922(q) to include an express

interstate commerce requirement. See Pub. L. No. 104–208, 110 Stat. 3009–369 to

370 (1996) (amending the Gun–Free School Zones Act of 1990). Section 922(q)

now requires that the offender “knowingly [] possess a firearm that has moved in

or that otherwise affects interstate or foreign commerce at a place that the

individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C.

§ 922(q)(2)(A) (emphasis added). Congress also amended § 922(q) to include

extensive congressional findings regarding the effects upon interstate commerce of

gun possession in a school zone. See 18 U.S.C. § 922(q)(1)(A)-(I).

C.    Thomas’s Constitutional Claims

      As an initial matter, because Thomas failed to raise his constitutional

challenge to § 922(q) below, we review it for plain error. See United States v.

Wright, 607 F.3d 708, 715 (11th Cir. 2010).

      Although Thomas argues that the amended § 922(q) is facially

unconstitutional based on Lopez, Congress amended § 922(q) to include an explicit

“affecting interstate commerce” element to cure the deficiencies identified in

Lopez. See 18 U.S.C. § 922(q)(2)(A) (providing that the offender must possess “a

firearm that has moved in or that otherwise affects interstate or foreign

commerce”). The amended § 922(q) also includes extensive congressional


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findings regarding the effects upon interstate commerce of gun possession in a

school zone post-Lopez, such as that firearms move easily in interstate commerce

and that they move in interstate commerce during their manufacturing process.

See 18 U.S.C. §§ 922(q)(1)(C), (D).

      Thomas’s reliance on Morrison fares no better. Although the Supreme

Court in Morrison referenced an attenuated link between interstate commerce and

firearm possession in the pre-Lopez version of § 922(q), it did not address at all the

amended version of § 922(q), much less hold it is unconstitutional. See Morrison,

529 U.S. at 609-14, 120 S. Ct. at 1749-52.

      The government stresses that Thomas has not shown that § 922(q) is

unconstitutional. Our sister circuits under de novo review have rejected

constitutional challenges to § 922(q) that were similar to Thomas’s. See United

States v. Nieves-Castano, 480 F.3d 597, 601 (1st Cir. 2007); United States v.

Dorsey, 418 F.3d 1038, 1046 (9th Cir. 2005); and United States v. Danks, 221 F.3d

1037, 1038-39 (8th Cir. 1999); see also Thomas More Law Ctr. v. Obama, 651

F.3d 529, 555 (6th Cir. 2011) (commenting that “[a]ll of the courts of appeals to

consider the question have upheld the amended [§ 922(q)] against commerce

clause challenges”). At a minimum, Thomas has failed to demonstrate plain error

as to the constitutionality of § 922(q) because neither the Supreme Court nor this




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Court has held that the amended § 922(q) is unconstitutional. See United States v.

Castro, 455 F.3d 1249, 1253 (11th Cir. 2006).

       As to Thomas’s argument that § 922(q) is unconstitutional as applied to him,

the amended § 922(q) now requires a nexus to interstate commerce where the

firearm has moved in or otherwise affects interstate commerce. See 18 U.S.C.

§ 922(q)(2)(A). And the record here established that Thomas’s firearm had moved

in interstate commerce. The factual basis in Thomas’s plea agreement stated that

the firearm Thomas possessed traveled in or affected interstate commerce because

it was manufactured in Arizona and he possessed it in Florida. 2 Therefore,

Thomas has failed to show plain error as to the constitutionality of § 922(q), and

we affirm his Count 2 conviction under §§ 922(q)(2)(A) and 924(a)(4).

           III. 18 U.S.C. § 922(g)(1): Felon in Possession of a Firearm

       Thomas next argues, for the first time on appeal, that his Count 1 conviction

should be vacated because 18 U.S.C. § 922(g)(1) is unconstitutional, both facially

and as applied.

       This Court has repeatedly held that § 922(g)(1) is not a facially

unconstitutional exercise of Congress’s power under the Commerce Clause.

Wright, 607 F.3d at 715. This is because § 922(g)(1) contains an express


       2
         As an additional point, at Thomas’s change-of-plea hearing, Thomas’s counsel
confirmed that the government would have been able to prove at trial that the firearm traveled in
interstate commerce.
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jurisdictional requirement. United States v. Scott, 263 F.3d 1270, 1273 (11th Cir.

2001). Specifically, 18 U.S.C. § 922(g)(1) provides that “[i]t shall be unlawful for

any person who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to . . . possess in or affecting

commerce, any firearm or ammunition . . . .” 18 U.S.C. § 922(g)(1) (emphasis

added). This Court has explained that the phrase “in or affecting commerce” in

§ 922(g)(1) indicated Congress’s intent to assert its full Commerce Clause power.

Wright, 607 F.3d at 715; see also United States v. Nichols, 124 F.3d 1265, 1266

(11th Cir. 1997). 3

       In addition, in Wright, this Court rejected the defendant’s challenge that

§ 922(g)(1) was unconstitutional as applied to him because § 922(g)(1) only

required that the government prove some minimal nexus to interstate commerce,

which was accomplished by demonstrating that the firearms the defendant

possessed were manufactured in a different state than the one in which the offense

took place. 607 F.3d at 715-16. In so ruling, this Court concluded that the

firearms necessarily traveled in interstate commerce, and, therefore, satisfied the

minimal nexus requirement. Id. at 716; see also United States v. McAllister, 77

F.3d 387, 389-90 (11th Cir. 1996) (holding that, even in the wake of Lopez, as


       3
        Thomas recognizes that this Court has already rejected his claim that § 922(g)(1) is
unconstitutional in light of Lopez and Morrison, and, therefore, states that he is preserving his
arguments for further review.
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long as the firearm in question has a minimal nexus to interstate commerce,

§ 922(g)(1) is constitutional as applied); United States v. Jordan, 635 F.3d 1181,

1189 (11th Cir. 2011) (holding that § 922(g)(1) is not unconstitutional as applied to

“a defendant who possessed a firearm only intrastate” because the government

demonstrated that the firearm moved in interstate commerce).

      To begin, because Thomas failed to raise his constitutional challenge to

§ 922(g)(1) below, we review it for plain error. Wright, 607 F.3d at 715.

Thomas’s facial and as applied challenges to the constitutionality of § 922(g)(1)

fail. First, this Court’s precedent in Wright, Scott, McAllister, and Jordan establish

that § 922(g)(1) is facially constitutional, even considering the holding in Lopez.

See Jordan, 635 F.3d at 1189; Wright, 607 F.3d at 715-16; Scott, 263 F.3d at 1273;

McAllister, 77 F.3d at 389-90. Under the prior panel precedent rule, “a prior

panel’s holding is binding on all subsequent panels unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

      Second, § 922(g)(1) is not unconstitutional as applied to Thomas, who

possessed the firearm only intrastate, because the record established that Thomas’s

firearm had moved in interstate commerce. See Jordan, 635 F.3d at 1189. As we

explained above, the factual basis in Thomas’s plea agreement stated that the

firearm Thomas possessed traveled in or affected interstate commerce because it


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was manufactured in Arizona and he possessed it in Florida. Therefore, Thomas

has failed to establish error, plain or otherwise, and we affirm his Count 1

conviction under §§ 922(g)(1) and 924(a)(2).

                  IV.    Deficiency of Indictment and Plea Colloquy

       Finally, Thomas argues, for the first time on appeal, that his Count 1

conviction is invalid because his indictment and plea colloquy failed to allege and

establish that he knew that, at the time of his possession, he was a convicted felon

prohibited from possessing a firearm. 4 Stated another way, he asserts that

§ 922(g)(1) includes a mens rea element that requires the government to establish

that he knew about his prohibited status as a convicted felon when he possessed the

firearm. 5

       Under 18 U.S.C. § 922(g)(1), “[i]t shall be unlawful for any person who has

been convicted in any court of, a crime punishable by imprisonment for a term

exceeding one year . . . to . . . possess in or affecting commerce, any firearm or




       4
         When a defendant challenges the adequacy of an indictment for the first time on appeal,
“this Court must find the indictment sufficient unless it is so defective that it does not, by any
reasonable construction, charge an offense for which the defendant is convicted.” United States
v. Pena, 684 F.3d 1137, 1147 (11th Cir. 2012) (quotation marks omitted). We review for plain
error when a defendant fails to object in the district court to a claimed Federal Rule of Criminal
Procedure 11 violation. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir. 2014).
       5
        Thomas does not dispute on appeal that he is a convicted felon. And at his
change-of-plea hearing, Thomas confirmed that he was a convicted felon at the time he
possessed the 9 millimeter firearm near the high school and Thomas’s counsel stated that the
government would have been able to prove at trial that Thomas was a convicted felon.
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ammunition.” The penalty provision states “[w]hoever knowingly violates

subsection . . . (g) . . . of section 922 shall be . . . imprisoned not more than 10

years.” 18 U.S.C. § 924(a)(2).

      “To prove that a defendant committed an offense under 18 U.S.C.

§ 922(g)(1), the government must show that (1) he[] knowingly possessed a

firearm or ammunition, (2) he[] was previously convicted of an offense punishable

by a term of imprisonment exceeding one year, and (3) the firearm or ammunition

was in or affecting interstate commerce.” United States v. Palma, 511 F.3d 1311,

1315 (11th Cir. 2008); see also United States v. Deleveaux, 205 F.3d 1292, 1296-

97 (11th Cir. 2000).

      This Court has already held that § 922(g)(1) does not require proof that a

defendant knew that his firearm possession was unlawful due to his

convicted-felon prohibited status. United States v. Jackson, 120 F.3d 1226, 1229

(11th Cir. 1997). In Jackson, this Court explained that a review of the legislative

history of § 922(g)(1), particularly the predecessor statutes to § 922(g)(1), showed

that a defendant’s knowledge of his convicted-felon status and illegality of his

conduct were irrelevant. See id. (citing United States v. Langley, 62 F.3d 602,

604-06 (4th Cir. 1995)).

      Rather, for an offense under § 922(g)(1), the government need prove only

that a defendant with a requisite felony conviction “knowingly” possessed a


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firearm. Deleveaux, 205 F.3d at 1298. That is, “[t]he prosecution need only show

that the defendant consciously possessed what he knew to be a firearm.” Id.; see

Palma, 511 F.3d at 1315 (“We have consistently held that § 922(g) is a strict

liability offense that ‘does not require the prosecution to prove that the criminal

acts were done with specific criminal intent.’”). Therefore, the only element of

§ 922(g)(1) that has a “knowing” mens rea requirement is possessing a firearm.

See Palma, 511 F.3d at 1315; United States v. Brantley, 68 F.3d 1283, 1290 (11th

Cir. 1995) (analogizing the mens rea showing required by §§ 922(g)(1) and 924(c)

and citing Langley for support that, because § 922(g)(1) requires proof of mens rea

as to possession of a firearm, there is no need to prove mens rea as to the other

elements).6

       Here, Thomas’s argument—that his indictment and plea colloquy were

deficient because § 922(g)(1) requires that the government prove that he knew his

prohibited status when he possessed the firearm—is precluded by our binding

precedent. Section 922(g)(1) does not contain a mens rea requirement with respect

to the convicted-felon prohibited-status element. See Palma, 511 F.3d at 1315;

Deleveaux, 205 F.3d at 1296-98; Jackson, 120 F.3d at 1229. Although Thomas

argues that this Court’s precedent was wrongly decided, these decisions have not



       6
        Thomas acknowledges that this Court has rejected this argument as well, and, therefore,
he advances it now for preservation purposes only.
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been overruled by the Supreme Court or this Court sitting en banc, and, therefore,

they remain binding precedent. See Archer, 531 F.3d at 1352; United States v.

Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc) (explaining that the

prior panel precedent rule controls even if the later panel is “convinced [the earlier

panel’s holding] is wrong.”). Accordingly, Thomas has failed to establish error,

plain or otherwise, and we affirm his Count 1 conviction under §§ 922(g)(1) and

924(a)(2).

                                V. CONCLUSION

      For the reasons stated, we affirm Thomas’s Count 1 and Count 2

convictions.

      AFFIRMED.




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