                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            February 10, 2006
                               No. 05-12627
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                  D. C. Docket No. 04-00440-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ROBERT RAY ASHCROFT,

                                                           Defendant-Appellant.


                         ________________________

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

                             (February 10, 2006)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Robert Ray Ashcroft appeals his 71-month sentence for being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(a)(2), and for possessing

and stealing stolen firearms shipped or transported through interstate and foreign

commerce, 18 U.S.C. §§ 922(j) & 924(a)(2). Ashcroft appeals his sentence as an

unreasonable one. In response, the government contends that we lack jurisdiction

to review Ashcroft’s challenge to his sentence because such a review is not

authorized by 18 U.S.C. § 3742(a) . Ashcroft also appeals on the basis that 18

U.S.C. § 922(G) is an unconstitutional exercise of Congress’s commerce power.

      We have previously rejected the government’s position with regard to

jurisdiction. See United States v. Martinez, No. 05-12706, 2006 WL 39541 (11th

Cir. Jan. 09, 2006); see also United States v. Mickelson, No. 05-2324, 2006 WL

27687 (8th Cir. Jan. 6, 2006) (rejecting the government’s position that appellate

courts lack jurisdiction to review sentences for reasonableness under § 3742(a)).

      Because we have jurisdiction to entertain appellate review, we now turn to

the reasonability of Ashcroft’s sentence. Ashcroft argues that the 71-month

sentence imposed by the district court was unreasonable and higher than necessary

to fulfill the purposes of sentencing. He contends that a sentence below 71 months

would have been sufficient to “promote respect for the law, provide just

punishment, afford adequate deterrence, protect the public, and provide the

defendant with needed . . . treatment.” Ashcroft argues that there were numerous



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mitigating circumstances warranting a sentence at the low end of the guidelines

that the district court refused to consider, even though it said it would.

      Following Booker, we review the final sentence imposed on a defendant for

reasonableness. See Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). The

factors set forth in § 3553(a) guide this review. Id. at 1246. Those factors include:

(1) the nature and circumstances of the offense; (2) the history and characteristics

of the defendant; (3) the need for the sentence imposed to reflect the seriousness of

the offense, to promote respect for the law, and to provide just punishment; (4) the

need to protect the public; and (5) the guideline range. See 18 U.S.C. § 3553(a).

Although a within-guidelines sentence is not per se reasonable, we ordinarily

expect such a sentence to be reasonable. See United States v. Talley, 431 F.3d

784, 787-88 (11th Cir. 2005). This expectation is measured against the record, and

Ashcroft bears the burden of showing his sentence is unreasonable in light of the

record and the 3553(a) factors. Id.

      We conclude that the district court imposed a reasonable sentence under

Booker. The court supported its sentence by taking into account Ashcroft’s

extensive criminal history, which the court discussed at length at the sentencing

hearing, noting that his prior felony offenses were “almost too numerous to count.”

The court also considered the need to reflect the seriousness of the offense, to



                                           3
afford adequate deterrence, and to protect the public from Ashcroft. Although the

court did not detail the weight that it had accorded to each sentencing factor, it was

not required to do so. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th

Cir. 2005) (holding that district court need not recite a laundry list of sentencing

factors to have adequately considered them under Booker). Ashcroft has failed to

show record evidence sufficient to overcome our expectation that his sentence

within the guideline range is unreasonable.

      Finally, Ashcroft argues for the first time on appeal that 18 U.S.C. § 922(g),

the statute under which he was convicted, is an unconstitutional exercise of

Congress’s Commerce Power. According to Ashcroft, our decision in United States

v. Maxwell, 386 F.3d 1042 (11th Cir.), cert. granted and judgment vacated, 126 S.

Ct. 321, and cert. denied, 126 S. Ct. 85 (2005), undermines our previous

determinations of 18 U.S.C. § 922(g)’s constitutionality by holding that the

aggregate approach to determining effects on interstate commerce cannot be

applied to non-economic criminal activity. As a result, Ashcroft contends, 18

U.S.C. § 922(g) is unconstitutional because it relies on the aggregate approach to

regulate a non-economic criminal activity. As Maxwell held that only regulation

of non-economic criminal activities substantially affecting interstate commerce are

constitutional, he argues that 18 U.S.C. § 922(g) is unconstitutional on those



                                           4
grounds as well.

      Although we generally review constitutional issues de novo, it is within our

discretion to address a constitutional issue when it has been raised for the first time

on appeal. United States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004), cert.

denied, 125 S. Ct. 1751 (2005). When an issue is raised for the first time on

appeal, we review the argument for plain error. United States v. Hall, 314 F.3d

565, 566 (11th Cir. 2002). “Plain error occurs where (1) there is an error; (2) that

is plain or obvious; (3) affecting the defendant’s substantial rights in that it was

prejudicial and not harmless; and (4) that seriously affects the fairness, integrity or

public reputation of the judicial proceedings.” Id.

      Our since-vacated decision in Maxwell, 386 F.3d at 1059-60, held that,

according to the Supreme Court’s decisions in United States v. Lopez, 514 U.S.

549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), non-economic

intrastate criminal conduct may not be regulated by Congress through its

commerce powers. Specifically, Maxwell invalidated a child pornography statute,

18 U.S.C. § 2252A(a)(5)(B), on the basis that “wholly intrastate activities that have

an only minimal or insubstantial effect on interstate commerce are not proper

subjects for federal regulation, at least not through the power bestowed by the

Commerce Clause.” Id. at 1055.



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      Ashcroft’s reliance on our since-vacated decision in Maxwell dooms his

argument that 18 U.S.C. § 922(g) is unconstitutional. Since Maxwell was vacated,

this Court has held that § 922(g) is constitutional. See Wright, 392 F.3d at 1280.

Our decision in Wright is consistent with numerous Eleventh Circuit cases

affirming the constitutionality of § 922(g). See, e.g., United States v. Dunn, 345

F.3d 1285, 1297 (11th Cir. 2003); United States v. Scott, 263 F.3d 1270 (11th Cir.

2001), cert. denied, 534 U.S. 1166 (2002); United States v. Dupree, 258 F.3d 1258

(11th Cir. 2001). Because “only the Supreme Court or this Court sitting en banc

can judicially overrule a prior panel decision,” we must reject Ashcroft’s argument.

United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).

      AFFIRMED.




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