           Case: 19-10822   Date Filed: 04/07/2020   Page: 1 of 11



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10822
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:18-cr-00030-HLA-PDB-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                     versus

SEAN JUSTIN OWENS,

                                                         Defendant-Appellant.

                      ________________________

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

                              (April 7, 2020)

Before JORDAN, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM:
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       Sean Owens appeals his conviction and 180-month sentence for possessing a

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

raises five issues, all for the first time on appeal. First, he argues that, in light of

the Supreme Court’s decision in Rehaif v. United States, the Government did not

prove an essential element of his crime—that he knew he was a convicted felon

when he possessed the firearm. Second, he argues that § 922(g)(1) is

unconstitutional. Third, he asserts that his prior convictions under Fla. Stat.

§ 893.13 do not qualify as “serious drug offenses” under the Armed Career

Criminal Act (ACCA) or “controlled substance offenses” under the Sentencing

Guidelines. Fourth, he argues that the district court erred in relying on

non-elemental facts in sentencing him pursuant to ACCA. Fifth, he argues that his

sentence violates the Fifth and Sixth Amendments. Because his arguments are

foreclosed by binding precedent in this Circuit, we affirm his conviction and

sentence.

                                            I.

       First, we consider Owens’s challenge to his indictment and the sufficiency

of the evidence in light of Rehaif v. United States, 139 S. Ct. 2191 (2019). In this

enumeration of error, Owens argues that an essential element of his crime—

knowledge of his status as a convicted felon—was improperly omitted from his

indictment and from the jury instructions. He also argues that, because the


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Government presented no evidence concerning this element, the evidence was

insufficient to sustain his conviction.

           Ordinarily, we review de novo whether there is sufficient evidence to

    support a conviction, whether the district court misstated the law in its jury

    instruction, and whether an indictment is insufficient. United States v. Baston,

    818 F.3d 651, 660 (11th Cir. 2016); United States v. Joseph, 709 F.3d 1082, 1093

    (11th Cir. 2013); United States v. Steele, 178 F.3d 1230, 1233 (11th Cir. 1999).

    Because Owens raises these challenges for the first time on appeal, however—and

    because we recently held in a published opinion that the failure to allege

    knowledge of felon status is a non-jurisdictional issue—we review for plain error.

    United States v. Moore, No. 17-14370, 2020 WL 1527975, at *7 (11th Cir. Mar.

    31, 2020); United States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019). 1

         To demonstrate plain error—a standard we have described as a “daunting

obstacle”—the appellant must show that an error occurred that was plain and that

affected his substantial rights. Reed, 941 F.3d at 1020–21. For us to conclude that

an error affected his substantial rights, Owens must show a reasonable probability



1
  Although Owens did make a sufficiency of the evidence challenge below, he “failed to raise the
specific challenge to the sufficiency of the evidence that he now raises on appeal.” United States
v. Baston, 818 F.3d 651, 663 (11th Cir. 2016). At trial, he challenged the sufficiency of the
evidence as it relates to the possession element of the crime—not to his knowledge of his status
as a convicted felon. “When a defendant raises specific challenges to the sufficiency of the
evidence in the district court, but not the specific challenge he tries to raise on appeal, we review
his argument for plain error.” Id. at 664.
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that, but for the error, the outcome of the proceeding would have been different.

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). “If he does so,

we may, in our discretion, correct the plain error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Reed, 941 F.3d at 1021

(alterations adopted and internal quotations marks omitted). We may consult the

whole record when considering the effect of an error on a defendant’s substantial

rights, including undisputed facts in the presentence investigation report (PSI). Id.

at 1021–22. “Facts contained in a PSI are undisputed and deemed to have been

admitted unless a party objects to them before the sentencing court with specificity

and clarity.” United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009)

(quotation marks omitted).

      It is unlawful for any person who has been convicted of “a crime punishable

by imprisonment for a term exceeding one year” to possess a firearm or

ammunition. 18 U.S.C. § 922(g)(1). A defendant who “knowingly” violates

§ 922(g) is subject to up to ten years’ imprisonment. Id. § 924(a)(2). A statutory

minimum of 15 years’ imprisonment applies to “a person who violates section

922(g)” and who has three previous convictions for a “violent felony” or a “serious

drug offense.” Id. § 924(e)(1).

      In Rehaif, the Supreme Court overturned Circuit precedent and held that a

prosecution under 18 U.S.C. § 922(g) and § 924(a)(2) requires the Government to


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prove both that the defendant “knew he possessed a firearm” and that he “knew he

belonged to the relevant category of persons barred from possessing a firearm.”

Rehaif, 139 S. Ct. at 2200. This decision abrogated our precedent in United States

v. Jackson, which held that a § 922(g)(1) conviction did not require the

Government to prove a defendant’s knowledge of his prior felony conviction. 120

F.3d 1226, 1229 (11th Cir. 1997).

      Since Rehaif, we have had occasion to consider a § 922(g)(1) conviction in

this Circuit that was obtained before the Supreme Court clarified the law. In

United States v. Reed, we rejected a defendant’s argument that his conviction

should be overturned because his “indictment failed to allege, his jury was not

instructed to find, and the government was not required to prove that he knew he

was a felon when he possessed the firearm.” 941 F.3d at 1020. In that case we

reviewed the challenge for plain error because the defendant failed to object at

trial. Although we recognized that the identified errors were plain after Rehaif, we

declined to overturn Reed’s conviction because he could not “prove that the errors

affected his substantial rights or the fairness, integrity, or public reputation of his

trial.” Id. at 1022. Specifically, we held that Reed could not show that “but for the

errors, the outcome of his trial would have been different” because the record,

considered as a whole, established that Reed knew that he was a felon. Id. at

1021–22 (alterations adopted). We noted the parties’ stipulation at trial that the


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defendant had been convicted of a felony offense in the past, his admission on

cross-examination that he knew that he was not permitted to have a gun, and his

failure to object to the PSI’s statement that he had served at least 18 years in prison

prior to his arrest for possessing a firearm. Id. at 1021–22.

      Our decision in Reed controls this case and forecloses Owens’s argument.

Like the defendant in Reed, Owens failed to raise this objection at trial and must

meet the plain-error standard on appeal. In conducting this analysis, we recognize

that an error occurred in this case “when the government was not required to prove

that [Owens] knew he was a felon.” Id. at 1021. Nevertheless, under plain error

review, Owens cannot establish that this error affected his substantial rights

because he cannot show any reasonable probability that the outcome of his trial

would have been different if the error had not occurred. The record—which we

consider as a whole for the purpose of plain error review—leaves no doubt that

Owens knew of his status as a convicted felon. Owens stipulated to the fact that he

had been convicted of a crime punishable by a term of imprisonment in excess of

one year. And the undisputed facts in the PSI show that Owens served more than

four years in prison for a number of felony convictions. Because he served several

years in prison for felony crimes, there is no reasonable argument that he was

unaware of his felony status. And because the record establishes that Owens knew




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that he was a felon, “he cannot prove that the errors affected his substantial rights

or the fairness, integrity, or public reputation of his trial.” Id. at 1022.

                                            II.

      Next, we consider Owens’s challenge to the constitutionality of 18 U.S.C.

§ 922(g)(1)—the statute that prohibits convicted felons from possessing firearms.

In this argument, Owens contends that this law exceeds Congress’s authority under

the Commerce Clause and is unconstitutional both facially and as applied.

Although we would normally review a constitutional challenge such as this de

novo, we review this challenge for plain error because it was raised for the first

time on appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

      As Owens himself acknowledges in his brief, this argument is squarely

foreclosed by our precedent. We have repeatedly upheld § 922(g) as a

constitutional exercise of the Commerce Clause power. See Wright, 607 F.3d at

715. This defeats his facial challenge.

      We have also held that § 922(g) is constitutional as applied where the

government proves a “minimal nexus” to interstate commerce. Id. This can be

accomplished by demonstrating that the firearm traveled in interstate commerce.

Id. at 715–16. In Wright, for example, we determined that a firearm manufactured

outside of Florida but later discovered in the defendant’s possession in Florida

necessarily traveled in interstate commerce and satisfied the minimal-nexus


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requirement. Id. at 716. Here, the Government presented testimony at trial

establishing that the firearm was manufactured in Connecticut and was shipped to

Florida before it was found in Owens’s possession. Consequently, it traveled in

interstate commerce and satisfied the minimal-nexus requirement. This defeats his

as-applied challenge.

                                         III.

      In his third enumeration of error, Owens argues that his sentence was

improperly increased as a result of his previous convictions. Specifically, he

argues that his drug convictions under Florida Statute § 893.13 should not qualify

as “serious drug offense[s]” under ACCA or as “controlled substance offense[s]”

under the Sentencing Guidelines. Although we ordinarily review these questions

of law de novo, we review arguments not raised in the district court for plain error.

See United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013), abrogated on

other grounds by Descamps v. United States, 570 U.S. 254 (2013).

      The district court did not plainly err because Owens’s argument is foreclosed

by our precedent as well as a recent decision by the Supreme Court. In United

States v. Smith, we explicitly held that a conviction under Fla. Stat. § 893.13(1)

qualifies as a “serious drug offense” under ACCA and a “controlled substance

offense” under U.S.S.G. § 4B1.2(b). 775 F.3d 1262, 1266–68 (11th Cir. 2014).

The Supreme Court recently affirmed one of our decisions relying on Smith. See


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Shular v. United States, 140 S. Ct. 779 (2020). Because Smith controls this case,

we reject Owens’s argument on this point.

                                         IV.

      Owens also argues—for the first time on appeal—that the district court

improperly sentenced him under ACCA by concluding that he committed three

prior offenses “on occasions different from one another.” 18 U.S.C. § 924(e)(1).

He argues that because the dates of his prior offenses were not elements of the

crime under Florida law, the district court could not consider them in imposing

sentence under the ACCA. We review for plain error and conclude that this

argument is squarely foreclosed by our precedent.

      To qualify for an enhanced sentence under ACCA, a defendant’s prior

convictions must have been for crimes “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). This means that the prior convictions must have

arisen from crimes that are temporally distinct. United States v. Longoria, 874

F.3d 1278, 1281 (11th Cir. 2017). To determine whether crimes were committed

on different occasions, a court “is generally limited to examining the statutory

definition of the offense of the prior conviction, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.” Longoria, 874 F.3d at 1281 (quoting

Shepard v. United States, 544 U.S. 13, 16 (2005)) (alterations adopted).


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      In United States v. Longoria, we rejected the very argument that Owens

asserts here. 874 F.3d at 1281–83. We held that as long as the district court relies

on Shepard-approved documents, it may determine whether the offenses were

committed on different occasions. Id.

      Here, the dates on the charging documents show that Owens’s crimes of

conviction were temporally distinct. He sold cocaine on March 13, 2009; March

17, 2009; and March 20, 2009. Accordingly, the district court did not plainly err in

determining that his crimes were committed on “occasions different from one

another.” 18 U.S.C. § 924(e)(1).

                                          V.

      Finally, Owens argues that his Fifth and Sixth Amendment rights were

violated because the fact that his prior offenses were committed on separate

occasions was not charged in the indictment or proven to the jury. Although we

review for plain error because this argument was not raised below, the standard of

review is immaterial; the argument conflicts with our binding precedent.

      Facts that increase mandatory minimum sentences must be submitted to a

jury and proven beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99,

114–16 (2013). A “penalty provision,” however, “which simply authorizes a court

to increase the sentence for a recidivist,” need not be alleged in the indictment or

submitted to the jury. Almendarez-Torres, 523 U.S. 224, 226 (1998). We have


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repeatedly held that the fact of a prior conviction need not be alleged in an

indictment or proven to a jury for a sentence enhancement to apply. See, e.g.,

United States v. Sparks, 806 F.3d 1323, 1350 (11th Cir. 2015). And we have

“expressly rejected the notion that the ACCA’s different-occasions determination,

unlike the mere fact of a prior conviction, must be submitted to a jury and proven

beyond a reasonable doubt.” Weeks, 711 F.3d at 1259 (citing United States v.

Spears, 443 F.3d 1358, 1361 (11th Cir. 2006)). Accordingly, the district court did

not plainly err by relying on Owens’s prior convictions to sentence him under the

ACCA’s enhanced-penalty provision.

      AFFIRMED.




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