                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                July 12, 2006
                              No. 05-14931                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 05-00030-CR-3-MCR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOSEPH BRADLEY MURPHY, JR.,

                                                          Defendant-Appellant.


                        ________________________

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

                               (July 12, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

     Joseph Bradley Murphy, Jr., appeals his conviction and 180 month sentence
stemming from his guilty plea for possession of a firearm by a convicted felon in

violation of 18 U.S.C. §§ 922(g), 924(e). He argued that § 922(g) is

unconstitutional, that the district court misapplied federal law to label a prior

conviction a crime of violence, and that the district court impermissibly delegated

judicial powers to a probation officer. Murphy acknowledges that each of these

arguments presented on appeal is controlled by our prior decisions. We AFFIRM.



                                 I. BACKGROUND

      A grand jury charged Murphy with being a felon in possession of a firearm,

in violation of 18 U.S.C. §§ 922(g), 924(e). Murphy pled guilty pursuant to a plea

agreement in which he reserved the right to appeal any sentence imposed.

According to the stipulated facts, in February 2005, an officer responded to a call

suggesting a possible drug violation involving a green car parked at an apartment

complex. Murphy told the officer that he had come out to the car to get a pair of

shoes, but when the officer looked through the car’s window, he saw a plastic

baggie containing what appeared to be marijuana. The officer arrested Murphy for

possession of marijuana. Upon searching the car, the officer detected the smell of

burned marijuana and found a handgun in the front driver’s side door, an ecstacy

pill, and a scalpel with cocaine on it.



                                           2
      Regarding past criminal activity, Murphy conceded that he had been

convicted in Florida of: (1) two instances of possession of a controlled substance;

(2) possession with intent to sell a controlled substance; (3) sale of cocaine; and (4)

battery on a law enforcement officer. Murphy conceded that his civil right to

possess a firearm had not been restored, and the gun found in his car had traveled

in interstate and foreign commerce.

      Murphy objected to, among other things, the classification of his prior

offense of carrying a concealed firearm as a “violent felony” for purposes of the

Armed Career Criminal Act (“ACCA”), codified in relevant part at 18 U.S.C.

§ 924(e)(1). During the sentencing hearing, he asserted that the underlying facts of

the offense were that he had a handgun in his sock and that he never displayed,

used, or presented the gun in a dangerous manner. The government argued that a

prior conviction for carrying a concealed firearm is, under the Florida statute, a

“violent felony” and that the district court could not look to the underlying facts of

the offense. Murphy asked the court to consider out-of-circuit authority in support

of his argument; however, the court indicated that the well-settled rule of this

circuit regards a prior conviction for carrying a concealed weapon as a violent

felony under the ACCA.

      The court sentenced Murphy to 180 months imprisonment. Additionally, the



                                           3
court imposed a five-year term of supervised release, which included “standard

condition 13.” The condition stated that “[a]s directed by the probation officer,

the defendant shall notify third parties of risks that may be occasioned by the

defendant’s criminal record or personal history or characteristics and shall permit

the probation officer to make such notifications and to confirm the defendant’s

compliance with such notification requirement.” R1-24 at 4. Murphy did not

object to the imposition of standard condition 13 before the district court.

      On appeal, Murphy has raised three issues for our consideration. First, he

argues that § 922(g)(1) violates the Commerce Clause. Second, he argues that

district court should have looked beyond the language of the Florida statute to

determine whether his prior conviction was a violent felony for purposes of the

ACCA. Finally, he argues that standard condition 13 impermissibly delegates

judicial power to the probation office.



                                 II. DISCUSSION

      Murphy concedes that the binding law of this circuit dictates the result in

each of his three issues. We note from the outset that “[o]nly the Supreme Court or

this Court sitting en banc can judicially overrule a prior panel decision.” United

States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004) (quotations and citations



                                           4
omitted). We usually review constitutional issues de novo; however, because

Murphy raises his constitutional challenge to § 922(g) for the first time on appeal,

we have the discretion regarding whether to address the issue. Id. Despite his

failure to raise his constitutional argument below, we will consider his arguments

on appeal. “We review the terms of a supervised release for abuse of discretion,

but where the defendant fails to object at the district court, we reverse only for

plain error.” United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006) (per

curiam). We address Murphy’s issues in the subsequent sections.



A. Commerce Clause and § 922(g)(1)

      Murphy asserts that we should revisit the issue of whether § 922(g)(1)

violates the Commerce Clause because our current precedent cannot be

harmonized with recent Supreme Court analyses. He argues that the only source

for federal jurisdiction over felon-in-possession cases is the inclusion of the phrase

“in or affecting commerce” in the statute, and it is now firmly established that the

Commerce Clause cannot be used to federalize criminal behavior that is typically

the subject of state prosecution. He contends that, in light of the combined effect

of United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), United States v.

Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), Jones v. United States, 529 U.S.



                                           5
848, 120 S. Ct. 1904 (2000), and Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195

(2005), it is unclear how courts should analyze § 922(g)(1). He concedes that he

did not object to the statute but asserts that there is reversible plain error.

           The Commerce Clause provides that “Congress shall have the power . . .

[t]o regulate Commerce with foreign Nations, and among the several [s]tates.”

U.S. Const. art. 1, § 8. It is unlawful for a person “who has been convicted in any

court of, a crime punishable by imprisonment” for more than 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). We have previously upheld the constitutionality of § 922(g)(1) in

light of Lopez, Jones, and Morrison. See Wright, 392 F.3d at 1280. The Supreme

Court’s decision in Raich, which is the only intervening Commerce Clause case,

does not alter our decision.1 As a result, § 922(g)(1) remains a constitutional

exercise of Congress’s legislative power, and we affirm Murphy’s conviction

pursuant to it.

       1
           Murphy presents no substantive argument that Raich changes the Commerce Clause
analysis for purposes of his challenge. In fact, Raich dealt with the issue of whether solely intrastate
regulation of a federally controlled substance could be governed by state law in the face of a
contrary federal statute and did not address whether “any provision or section of the [Controlled
Substances Act] amounts to an unconstitutional exercise of congressional authority.” Raich, 545
U.S. at __, 125 S. Ct. at 2204–05. Thus, Raich does not provide any new guidance that would help
us conclude that § 922(g) is unconstitutional.

                                                   6
B. Whether a Prior Conviction for Carrying a Concealed Firearm Is a Violent

Felony Under the ACCA

      Murphy next argues that we should reconsider our prior decisions to the

extent that they indicate that carrying a concealed firearm under Florida law is

per se a “violent felony” under the ACCA. He asserts that, similar to the Florida

crime of driving under the influence, carrying a concealed firearm is not per se a

“violent felony.” He contends that the facts of the underlying offense should be

considered in determining whether it was a “violent felony,” and in light of

Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), the district court

can look beyond the surface of the statutory definition.

      The ACCA provides that any person who violates 18 U.S.C. § 922(g) and

has three previous convictions for a “violent felony or a serious drug offense, or

both, committed on occasions different from one another,” shall be imprisoned not

less than 15 years. 18 U.S.C. § 924(e)(1). The statute defines “violent felony” as

“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 or another; or (ii) is burglary . . . or otherwise involves conduct

that presents a serious potential risk of physical injury to another.”

Id. § 924(e)(2)(B). We have determined that “[c]arrying a concealed weapon is



                                           7
conduct that poses serious potential risk of physical injury.” United States v. Hall,

77 F.3d 398, 401 (11th Cir. 1996).

      Based our decision in Hall, the district court did not err in finding that

Murphy’s prior conviction for carrying a concealed firearm was a “violent felony”

for purposes of the ACCA. While Shepard establishes the types of evidence a

court may consider when determining whether an offense constitutes a “violent

felony” when it is unclear from the face of the statute, we have held that the nature

of this offense is clear from the statute at issue in this appeal. See Hall, 77 F.3d at

401. As a result, the district court correctly applied circuit law.



C. Standard Condition 13

      Murphy argues that standard condition 13 of his supervised release is an

unconstitutional delegation of judicial powers to the probation officer. He asserts

that although it is unclear whether the court intended to give the probation officer

as much authority as it did with regard to the condition, the wording of the

condition, when compared to that of the other conditions, reveals that standard

condition 13 is unlike the other conditions in that it gives the probation officer a

broad range of discretion. Murphy contends that the condition either

unconstitutionally delegates authority to the probation officer or that the delegation



                                            8
is ambiguous, in which case the rule of lenity applies in his favor.

      Because Murphy did not object to the condition at the district court, we

review for plain error. “To find reversible error under the plain error standard, we

must conclude that (1) an error occurred, (2) the error was plain, and (3) the error

affected substantial rights.” Nash, 438 F.3d at 1304 (quotations and citations

omitted). “If these three criteria are met, we may reverse for plain error if it

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

proceedings.’” Id.

      “To determine if a court improperly delegated the judicial authority of

sentencing, we have drawn a distinction between the delegation to a probation

officer of a ‘ministerial act or support service’ and ‘the ultimate responsibility’ of

imposing the sentence.” Id. at 1304–05. “Where the court makes the

determination of whether a defendant must abide by a condition . . . it is

permissible to delegate to the probation officer the details of where and when the

condition will be satisfied.” Id. at 1305. In Nash, we considered a condition with

identical language to that which Murphy now challenges and determined that the

condition did not improperly delegate a judicial function to the probation officer.

Id. at 1306. As a result, the condition is not an improper delegation of judicial

function and there was no error, much less plain error.



                                            9
                                III. CONCLUSION

      Murphy appealed his conviction and 180 month sentence stemming from his

guilty plea for possession of a firearm by a convicted felon. He argued that

§ 922(g) is unconstitutional, that the district court misapplied federal law to label a

prior conviction a violent felony, and that the district court impermissibly

delegated judicial powers to a probation officer. Each of these arguments is

controlled by our prior decisions. AFFIRMED.




                                           10
