           Case: 12-16592   Date Filed: 06/02/2014   Page: 1 of 7




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-16592
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:12-cr-00154-GKS-GJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

EDWARD B. HALL,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 2, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Edward B. Hall appeals his convictions and total 92-month sentence for two

counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). On appeal, Hall argues that (1) § 922(g) is

unconstitutional under the Commerce Clause, both facially and as applied to him,

and (2) the district court erred in concluding that Hall’s prior conviction for escape

during transport, in violation of Fla. Stat. § 944.40, constituted a “crime of

violence” under U.S.S.G. §§ 2K2.1 and 4B1.2.

                                            I.

      We generally review the constitutionality of a statute de novo. United States

v. Jordan, 635 F.3d 1181, 1185 (11th Cir.), cert. denied, 132 S.Ct. 356 (2011).

However, where a defendant fails to challenge the constitutionality of a statute in

the trial court, we will only review its constitutionality for plain error. United

States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006). Under plain error

review, we will only reverse where there was (1) error, (2) that is plain, and (3) that

affects substantial rights, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id. at 1283. A defendant’s

unconditional guilty plea waives any challenge to whether the evidence established

a sufficient connection with interstate commerce. See United States v. Ternus, 598

F.3d 1251, 1254 (11th Cir. 2010).




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      We may disregard the holding of a prior panel of the Court only where it has

been overruled by this Court sitting en banc or the Supreme Court. United States

v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009). We have previously held that

§ 922(g) is constitutional because it requires proof that the firearm that is the

subject of the conviction has a nexus to interstate commerce. United States v.

Scott, 263 F.3d 1270, 1274 (11th Cir. 2001). Even a “minimal nexus” is sufficient

to satisfy the Commerce Clause. Jordan, 635 F.3d at 1189. We have held that

proof that a firearm travelled interstate, even where the defendant only possessed it

intrastate, satisfied the required “minimal nexus.” Id.

      Hall’s argument that § 922(g) is unconstitutional because it does not require

a sufficient interstate nexus to satisfy the Commerce Clause is foreclosed by our

precedent. See Kaley, 579 F.3d at 1255; Scott, 263 F.3d at 1274. To the extent

that Hall raises an “as applied” constitutional challenge—that his conviction does

not contain a sufficient interstate nexus as an evidentiary matter to pass

constitutional muster—his guilty plea waived that argument. See Ternus, 598 F.3d

at 1254.




                                          II.

      We review de novo the district court’s interpretation and application of the

Sentencing Guidelines. United States v. Bane, 720 F.3d 818, 824 (11th Cir. 2013).

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Specifically, we review de novo whether a prior conviction constitutes a “crime of

violence” for purposes of calculating a base offense level under § 2K2.1. United

States v. Hall, 714 F.3d 1270, 1271 (11th Cir. 2013).

      In sentencing, the district court may consider any evidence heard during trial

or admitted to by a guilty plea, undisputed statements in the PSI, or evidence

presented at the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356

(11th Cir. 1989). Further, a fact that is admitted during a guilty plea cannot be

contested when it appears in the PSI. United States v. Martinez, 584 F.3d 1022,

1027 (11th Cir. 2009).

      The guideline range for convictions under 18 U.S.C. § 922(g) is calculated

pursuant to U.S.S.G. § 2K2.1. U.S.S.G., App. A. Under § 2K2.1, a base offense

level of 26 applies where (1) the offense involved a semiautomatic firearm that is

capable of accepting a large capacity firearm, and (2) the defendant committed the

offense after having been convicted of two felony crimes of violence or controlled

substance offenses. U.S.S.G. § 2K2.1(a)(1). The associated commentary instructs

that “crime of violence” means the same in this provision as it does in § 4B1.2(a)

and the associated commentary. Id. § 2K2.1, comment. (n.1). Under the

Guidelines, a prior conviction can be a “crime of violence” in one of three ways.

Id. § 4B1.2(a). Under the “elements clause,” an offense is a crime of violence if it

“has as an element the use, attempted use, or threatened use of physical force


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against the person of another . . . .” Id. § 4B1.2(a)(1). Second, the offense could

also be one of the enumerated offenses of “burglary of a dwelling, arson, or

extortion” or an offense that “involves the use of explosives . . . .” Id.

§ 4B1.2(a)(2). Last, under the “residual clause,” an offense can be a “crime of

violence” if it “otherwise involves conduct that presents a serious potential risk of

physical injury to another.” Id.

      The ACCA’s definition of “violent felony” is virtually identical to § 4B1.2’s

definition of “crime of violence.” Compare 18 U.S.C. § 924(e)(2)(B), with

U.S.S.G. § 4B1.2. Accordingly, we have reasoned that decisions regarding what

constitutes a “violent felony” under the ACCA apply to a determination of whether

an offense constitutes a “crime of violence” under the Guidelines. See United

States v. Chitwood, 676 F.3d 971, 975 n.2 (11th Cir.), cert. denied, 133 S.Ct. 288

(2012).

      Under Florida law, any prisoner who escapes from a place of confinement,

or while being transported to or from a place of confinement, is guilty of a felony.

Fla.Stat. § 944.40. We have recognized that § 944.40 can be violated in at least

four ways: (1) escape from jail; (2) escape from custody while being transported to

or from jail; (3) escape from a road camp; and (4) escape from custody while

working upon the public roads. United States v. Proch, 637 F.3d 1262, 1267 (11th

Cir. 2011). In Proch, the defendant was guilty of either the first or second


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category of escape. Id. at 1267-68. We held that escape under either category

constituted a “violent felony” under the ACCA’s residual clause. Id. at 1268-69.

We reasoned, “Escapes from custody, like burglary, will almost always involve the

police attempting to apprehend the escapee and are likely to cause an eruption of

violence.” Id. at 1269 (quotation omitted). We also stated that escape from

custody is “purposeful, violent and aggressive because it involves a choice that will

almost certainly be responded to with force, and potentially violent force, by the

police.” Id.

        Here, Hall’s guilty plea included an admission that he had previously been

convicted of “escape during transport” under Florida law. To the extent that Hall

may not have expressly admitted that fact in his plea colloquy, the PSI also

reflected that he was convicted of escape during transport, and Hall did not object

to that characterization. The fact that Hall was convicted of escape during

transport was, therefore, admitted for sentencing purposes. See Wilson, 884 F.2d at

1356.

        Our holding in Proch is controlling here. See Proch, 637 F.3d at 1268-69.

While Proch involved the ACCA, we have previously recognized that the ACCA

definition of “violent felony” and the Guidelines definition of “crime of violence”

are virtually identical. See Chitwood, 676 F.3d at 975 n.2. Hall argues that

Proch’s holding does not apply here because Hall was not an armed career


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criminal and posed a lower risk of violence in an escape. That argument is

unpersuasive. Our rationale in Proch for holding that escape during transport

constituted a violent felony had nothing to do with the defendant’s status as an

armed career criminal or his individual likelihood of violence. Rather, we focused

on the risk that an escape would prompt a violent response from police. See Proch,

637 F.3d at 1269. Therefore, there is no apparent reason not to apply Proch’s

ACCA holding here to the guidelines definition of “crime of violence.” Further,

Hall’s argument that the residual clause is unconstitutionally vague is foreclosed

by binding precedent. See Chitwood, 676 F.3d at 978 n.3 (recognizing that the

Supreme Court has rejected a challenge to the ACCA’s residual clause, and noting

that the rejection appeared to foreclose a conclusion by a lower court that the

guidelines residual clause was unconstitutionally vague). Accordingly, we affirm

Hall’s convictions and sentences.

      AFFIRMED.




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