           Case: 17-12613   Date Filed: 07/11/2018   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12613
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:16-cr-00057-TJC-PDB-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

                                  versus

MAURICE MITCHELL,
a.k.a. Momo,

                                                      Defendant - Appellant.

                       ________________________

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

                              (July 11, 2018)

Before JILL PRYOR, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Maurice Mitchell appeals his conviction and sentence for possession of a

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

appeal, Mitchell argues that his conviction should be vacated because § 922(g) is

unconstitutional. He also argues that the district court erred in imposing a four-

level sentencing enhancement for possessing the firearm in connection with

another felony offense. After careful review, we affirm.

                               I.      BACKGROUND

      Mitchell was convicted after a jury trial of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g). The following facts were

established at trial. An officer with the Jacksonville Sheriff’s Office was on patrol

when he noticed a gold minivan driving suspiciously. Suspecting that the driver

was impaired, the officer followed the van to initiate a traffic stop. The officer

activated his vehicle’s blue lights to alert the driver of the van to pull over, but the

driver did not stop. Instead, the driver sped up, running through several stop signs.

The officer activated his emergency sirens; a high speed chase ensued. Another

officer joined the pursuit. The driver of the van eventually lost control, hit a grassy

median, and crashed into a grove of trees.

      As the officer approached the van, he saw Mitchell get out of the driver’s

side of the van and run away. He eventually found Mitchell hiding underneath a

black SUV in a nearby parking lot. Mitchell smelled like alcohol and burnt


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marijuana. Meanwhile, other officers inventoried the van. They found a loaded

firearm, which had been manufactured in California, on the van’s passenger-side

dashboard.

      Mitchell’s presentence investigation report (“PSI”) recommended that he

receive several sentencing enhancements. As relevant to this appeal, it

recommended a four-level enhancement under United States Sentencing

Guidelines § 2K2.1(b)(6)(B) because he possessed the firearm “in connection with

another felony offense,” specifically, felony fleeing from law enforcement.

Mitchell objected to the enhancement, arguing that no officer had seen him hold or

point the gun. The gun’s mere presence in the van, Mitchell contended, was

insufficient to establish that he possessed it “in connection with” the felony. The

district court disagreed, finding that government had proven, by a preponderance

of the evidence, that Mitchell had possessed the firearm in connection with felony

fleeing.

      Based on his total offense level and criminal history, Mitchell’s guideline

range was 151 to 188 months’ imprisonment. Because the statute of his conviction

carried a 120 month maximum, however, his guideline range was reduced to 120

months. The district court noted that if the four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B) had not applied Mitchell’s guideline range would have been 97 to

121 months, which included the statutory maximum.


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      After calculating Mitchell’s guideline range, the district court considered

argument from Mitchell and the government and discussed the nature and

circumstances of Mitchell’s offense, his history and characteristics, and the need

for deterrence and to protect the public from his future crimes. In particular, the

district court emphasized that Mitchell had driven while intoxicated and with a

firearm, leading a high speed chase that put his own life and the lives of others in

danger. It also noted that Mitchell’s criminal history included two separate five-

year terms of imprisonment and that his § 922(g) offense occurred only three

months after his release from the second five-year term. The district court then

sentenced Mitchell to 120 months, explaining that:

      [E]ven if . . . one or more of my guidelines rulings were in error, it
      would be my judgment . . . that a sentence at the statutory maximum
      would be the appropriate sentence in this case, and the sentence that I
      would arrive at, notwithstanding any potential reduction error that the
      court may have made in the advisory guidelines.

Doc. 95 at 86.1 This is Mitchell’s appeal.

                             II.    STANDARDS OF REVIEW

      We typically review the constitutionality of a federal statute de novo, United

States v. Jackson, 111 F.3d 101, 101 (11th Cir. 1997), but constitutional objections

that were not raised before the district court are reviewed only for plain error,

United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005).


      1
          Citations to “Doc. #” refer to the numbered entries on the district court’s docket.
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      We review a district court’s findings of fact for clear error and its application

of the Sentencing Guidelines de novo. United States v. Maddox, 803 F.3d 1215,

1220 (11th Cir. 2015). Evaluating whether a firearm was used “in connection

with” a felony offense is a factual determination and thus is reviewed for clear

error. United States v. Whitfield, 50 F.3d 947, 949 & n.8 (11th Cir. 1995). We will

not reverse a sentence based on an erroneous calculation of the guideline range if

the error is harmless. United States v. Perkins, 787 F.3d 1329, 1341 (11th Cir.

2015).

                                 III.   ANALYSIS

      On appeal, Mitchell argues that his conviction should be vacated because his

statute of conviction, 18 U.S.C. § 922(g), is unconstitutional. He also argues that

the district court erred in imposing a four-level sentencing enhancement under

U.S.S.G. § 2K2.1(b)(6)(B) because the government failed to prove by a

preponderance of the evidence that he possessed the firearm in connection with the

felony of fleeing law enforcement. For the reasons that follow, we affirm

Mitchell’s conviction and sentence.

A.    Under Our Binding Precedent, 18 U.S.C. § 922(g) Is Constitutional.

      Mitchell argues, for the first time on appeal, that § 922(g) is both facially

unconstitutional because it exceeds Congress’s authority under the Commerce




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Clause and unconstitutional as applied to him. Our prior panel precedent

forecloses his arguments.

      Section 922(g) makes it unlawful for a convicted felon “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

repeatedly held that [§] 922(g)(1) is not a facially unconstitutional exercise of

Congress’s power under the Commerce Clause because it contains an express

jurisdictional requirement.” United States v. Jordan, 635 F.3d 1181, 1189 (11th

Cir. 2011); see, e.g., United States v. Scott, 263 F.3d 1270, 1273 (11th Cir. 2001)

(“[T]he jurisdictional element of the statute, i.e., the requirement that the felon

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

§ 922(g)(1) from . . . facial constitutional attack.” (quoting 18 U.S.C. § 922(g)(1)).

Under our 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). Accordingly, as Mitchell concedes,

his argument that § 922(g) is facially unconstitutional is foreclosed.

      Mitchell also argues that statute was unconstitutional as applied because the

government failed to prove a “substantial connection” between his possession of


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the firearm and interstate commerce. Appellant’s Br. at 18. Under our binding

precedent, however, the government need only “prove some ‘minimal nexus’ to

interstate commerce, which it may accomplish by demonstrating that the firearm

possessed traveled in interstate commerce.” United States v. Wright, 607 F.3d 708,

715 (11th Cir. 2010) (alterations adopted) (internal quotation marks omitted).

Proof that the firearm was manufactured outside of the state where the offense took

place satisfies this burden. Id. at 716. Here, the government proved at trial that the

firearm was manufactured in California, and the offense took place in Florida.

Thus, the statute was constitutional as applied to Mitchell, and his conviction must

be affirmed.

B.    Any Error in Mitchell’s Guidelines Calculation Was Harmless.

      Mitchell next argues that the district court erred in applying a sentencing

enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Under this enhancement, a

defendant’s sentence is increased by four levels if he “possessed any firearm . . . in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). Mitchell

does not dispute that his conduct constituted felony fleeing, but he insists that the

district court clearly erred in finding that he possessed the firearm “in connection

with” that felony.

      Assuming, without deciding, that the district court erred in applying the

enhancement, the error was harmless. A calculation error is harmless when (1) the


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district court clearly indicates that it would impose an identical sentence regardless

of the enhancement and (2) the sentence imposed is substantively reasonable.

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). Here, the district

court expressly stated that it would impose the same 120 month sentence even if its

application of the enhancement had been erroneous. We thus consider whether the

sentence imposed is substantively reasonable.

      We review the substantive reasonableness of a sentence under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Under 18

U.S.C. § 3553(a), the district court is required to impose a sentence “sufficient, but

not greater than necessary, to comply with the purposes” of § 3553(a)(2)—the need

to reflect the seriousness of the offense; promote respect for the law; provide just

punishment; deter criminal conduct; protect the public from the defendant’s future

criminal conduct; and effectively provide the defendant with educational or

vocational training, medical care, or other correctional treatment. 18 U.S.C.

§ 3553(a)(2). The court must also consider the nature and circumstances of the

offense; the history and characteristics of the defendant; the kinds of sentences

available; the applicable guideline range, the pertinent policy statements of the

Sentencing Commission; the need to avoid unwarranted sentencing disparities; and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). In conducting

our review, we consider the totality of the circumstances and whether the statutory


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factors in 18 U.S.C. § 3553(a) support the sentence in question. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Although we do not

automatically presume a within-guidelines sentence to be reasonable, ordinarily we

expect it to be. United States v. Asante, 782 F.3d 639, 648 (11th Cir. 2015).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence “only when it (1) fails to afford consideration to relevant

factors that were due significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment in considering the

proper factors.” United States v. Roasales-Bruno, 789 F.3d 1249, 1256 (11th Cir.

2015) (internal quotation marks omitted). The weight given to any specific

§ 3553(a) factor is committed to the sound discretion of the district court, United

States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009), and we may vacate a

sentence “only if[] we are left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case,” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (internal quotation marks omitted).

      The 120 month sentence—which, even without the objected-to

enhancement, was within Mitchell’s guideline range—was substantively

reasonable. The district court expressly stated that it took into account all of the


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§ 3553(a) factors. It considered several of those factors on the record, including

the seriousness of the offense, Mitchell’s history and characteristics, and the need

for deterrence and to protect the public. For example, the district court discussed

the fact that Mitchell led officers on a high speed chase while driving intoxicated,

which put his life and the lives of others at risk, and that he did so a mere three

months after being released from a five-year term of incarceration. Because we are

not left with a “definite and firm conviction that the district court committed a

clear error in judgment in weighing the § 3553(a) factors,” Irey, 612 F.3d at 1190,

the district court did not abuse its discretion in imposing the 120 month sentence.

Accordingly, assuming that the district court erred in enhancing Mitchell’s

sentence under U.S.S.G. § 2K2.1(b)(6)(B), the error was harmless.

                               IV.    CONCLUSION

      For the foregoing reasons, we affirm Mitchell’s conviction and sentence.

      AFFIRMED.




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