           Case: 18-10865   Date Filed: 03/09/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10865
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:17-cr-00219-PGB-DCI-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

JOSE LUIS SANCHEZ-ROSADO,

                                                        Defendant-Appellant.

                      ________________________

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

                             (March 9, 2020)

Before WILLIAM PRYOR, LAGOA and HULL, Circuit Judges.

PER CURIAM:
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      Jose Sanchez-Rosado appeals his conviction that was entered on a plea of

guilty to possessing a firearm as a felon and his sentence of 180 months of

imprisonment. 18 U.S.C. § 922(g)(1). Sanchez-Rosado argues, for the first time,

that section 922(g) is unconstitutional facially and as applied to him and that

Rehaif v. United States, 139 S. Ct. 2191 (2019), which the Supreme Court decided

while his appeal was pending, established errors in his indictment and change of

plea hearing that require the vacatur of his conviction. Sanchez-Rosado also argues

that the enhancement of his sentence under the Armed Career Criminal Act, 18

U.S.C. § 924(e), based on facts about prior convictions not alleged in his

indictment and that were not proved to a jury violated his rights under the Fifth and

Sixth Amendments; that the district court erred by relying on the dates of his prior

offenses to determine whether they occurred on separate occasions; and that his

three prior convictions in Florida courts for robbery did not count as predicate

offenses under the Act. We affirm Sanchez-Rosado’s conviction and sentence.

      The district court did not plainly err by failing sua sponte to vacate Sanchez-

Rosado’s conviction based on his challenges to the constitutionality of section

922(g). Sanchez-Rosado’s challenge to the facial validity of the statute is

foreclosed by United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), in which we

held that “the jurisdictional element of the statute, i.e., the requirement that the

felon ‘possess in or affecting commerce, any firearm or ammunition,’ immunizes


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§ 922(g)(1) from [a] facial constitutional attack.” Id. at 1273. Our precedent also

holds that section 922(g)(1) is constitutional as applied to a defendant who

possesses a firearm that “traveled in interstate commerce,” United States v.

McAllister, 77 F.3d 387, 390 (11th Cir. 1996), and Sanchez-Rosado admitted

during his change of plea hearing that the rifle he possessed in Florida had been

manufactured in Illinois.

      Sanchez-Rosado is not entitled to relief from his conviction based on Rehaif.

Although Sanchez-Rosado’s indictment was defective because it failed to allege

the element of his offense that he knew he was a felon, 139 S. Ct. at 2200; see

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019), the omission of a

mens rea element from an indictment does not divest the district court of subject

matter jurisdiction, see United States v. Brown, 752 F.3d 1344, 1350–51, 1353–54

(11th Cir. 2014), and Sanchez-Rosado waived the defect by pleading guilty. And

although plain error occurred when Sanchez-Rosado was not informed during his

change of plea hearing that he had to know that he was a felon barred from

possessing a firearm, see Fed. R. Crim. P. 11(b)(1)(G); Rehaif, 139 S. Ct. at 2200,

he does not even argue, much less “show a reasonable probability that, but for the

error, he would not have entered [his] plea,” United States v. Moriarty, 429 F.3d

1012, 1020 (11th Cir. 2005) (quoting United States v. Dominguez Benitez, 542

U.S. 74, 83 (2004)). Sanchez-Rosado’s indictment alleged that he had five prior


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felony convictions, he admitted during his plea colloquy that he was a felon who

had not had his right to possess firearms restored, and he admitted at sentencing

that he had been convicted of two robbery convictions for which he had served

concurrent terms of more than 35 months in prison before possessing the rifle. And

at sentencing, Sanchez-Rosado “readily admit[ted]” that, “as a convicted felon,

[he] was prohibited from being in possession of a firearm.” So Sanchez-Rosado

cannot prove that he was prejudiced by the errors in his indictment or during his

change of plea hearing.

      Sanchez-Rosado’s challenge to the enhancement of his sentence fails too.

Sanchez-Rosado’s indictment identified his prior felony offenses and the dates of

his convictions, and he admitted that he was a felon who had “not received

clemency for his felony conviction(s).” And Sanchez-Rosado’s argument is

foreclosed by precedent too. In Almendarez–Torres v. United States, 523 U.S. 224,

228–47 (1998), the Supreme Court held that a prior conviction “relevant only to

the sentencing of an offender found guilty of the charged crime” does not have to

be charged in an indictment or proven beyond a reasonable doubt to a jury, even if

it increases the defendant’s maximum statutory sentence. Almendarez-Torres

remains the law until overruled by the Supreme Court, which it declined to do in

Alleyne v. United States, 570 U.S. 99 (2013). United States v. Harris, 741 F.3d

1245, 1249 (11th Cir. 2014).


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      The district court did not err by counting Sanchez-Rosado’s two robbery

convictions as separate offenses. A defendant is subject to an enhanced sentence

when he has three prior convictions for violent felonies or serious drug offenses

that were “committed on occasions different from one another,” 18 U.S.C.

§ 924(e)(1), such that they are “temporally distinct,” United States v. Longoria,

874 F.3d 1278, 1281 (11th Cir. 2017). Sanchez-Rosado did not object to the

statements in his presentence report that, on January 28, 2011, he robbed an RBC

Bank in Ormond Beach, Florida, and on February 1, 2011, he robbed a Wachovia

Bank in Deland, Florida. See United States v. McCloud, 818 F.3d 591, 595 (11th

Cir. 2016) (“The district court may make findings of fact [regarding the nature of a

prior conviction] based on undisputed statements in the PSI . . . .”). And the

government introduced at sentencing copies of the charging instrument and

judgment for each of Sanchez-Rosado’s prior robbery convictions. See Shepard v.

United States, 544 U.S. 13, 16 (2005). Sanchez-Rosado argues, for the first time,

that the dates of his robberies are “non-elemental facts” that the district court could

not consider to determine whether his crimes occurred on different occasions, but

we held in Longoria that “for ACCA purposes, district courts may determine both

the existence of prior convictions and the factual nature of those convictions,

including whether they were committed on different occasions, so long as they




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limit themselves to Shepard-approved documents,” 874 F.3d at 1283 (quoting

United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013)).

      Sanchez-Rosado’s arguments that his two convictions for robbery and his

one conviction for domestic battery by strangulation do not qualify as predicate

offenses are foreclosed by precedent. Sanchez-Rosado argues that bank robberies

perpetuated by putting victims in fear do not qualify as violent felonies, but the

Supreme Court held in Stokeling v. United States, 139 S. Ct. 544, 555–56 (2019),

that “[r]obbery under Florida law . . . qualifies as a ‘violent felony’” because the

defendant must use or threaten to use physical force to overpower his victim,

which “correspond[s] to that level of force” required in the elements clause of the

Act. And Sanchez-Rosado’s challenge to his remaining conviction fails because

“Florida’s domestic-battery-by-strangulation statute requires conduct that

categorically requires the use of violent force.” United States v. Dixon, 874 F.3d

678, 682 (11th Cir. 2017).

      We AFFIRM Sanchez-Rosado’s conviction and sentence.




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