           Case: 12-15258   Date Filed: 06/04/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15258
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:12-cr-20184-FAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

GEORGE ANTONIO COREY,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 4, 2013)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Pursuant to a plea agreement, George Corey pled guilty to being a convicted

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because he

had three prior convictions qualifying under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), the statutory minimum sentence Corey could

receive was 15-years’ imprisonment, so the District Court sentenced him to prison

for a 15-years’ term. He appeals his sentence, arguing (1) that § 922(g)(1) is

unconstitutional both on its face and as applied to him because it exceeds

Congress’ authority under the Commerce Clause; (2) that his Fifth and Sixth

Amendment rights were violated because he was sentenced to a term above the

statutory maximum sentence based on prior convictions not alleged in his

indictment or proven beyond a reasonable doubt; and (3) that the residual clause in

§ 924(e) is unconstitutionally vague. After careful review of the parties’ briefs,

we affirm Corey’s conviction and sentence.

                                          I.

      Corey argues that 18 U.S.C. § 922(g)(1) is unconstitutional on its face and as

applied to him because it exceeds Congress’ authority under the Commerce

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

Wright, 607 F.3d 708, 715 (11th Cir. 2010). Section § 922(g)(1) 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


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firearm or ammunition which has been shipped or transported in interstate or

foreign commerce.” 18 U.S.C. § 922(g)(1). We have repeatedly upheld

§ 922(g)(1) against facial attacks as a constitutional exercise of Congress’ power

under the Commerce Clause. See United States v. Scott, 263 F.3d 1270, 1273

(11th Cir. 2001) (holding that “the 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 [a] facial constitutional attack”); see

also United States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001); United

States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); United States v.

McAllister, 77 F.3d 387, 389-90 (11th Cir. 1996).

      We have also upheld § 922(g)(1) against as-applied challenges, where the

Government has shown a “minimal nexus” between the firearm and interstate

commerce. McAllister, 77 F.3d at 390. A showing that the firearm was

manufactured in one state and traveled in interstate commerce to another state

satisfies the “minimal nexus” test. Scott, 263 F.3d at 1274.

      As Corey readily concedes in his appellate brief, his facial challenge to

§ 922(g)(1) is foreclosed by our precedent upholding § 922(g) under similar facial

attacks. His as-applied challenge to § 922(g) is also unavailing. At the plea

colloquy, he admitted that the firearm was manufactured outside of Florida and

thus traveled in and affected interstate commerce. As such, this was sufficient to


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show a “minimal nexus” between the firearm and its connection to interstate

commerce.

                                         II.

      Corey argues that his Fifth and Sixth Amendment rights were violated

because he was sentenced above the statutory maximum sentence based on prior

convictions not alleged in the indictment or proven beyond a reasonable doubt.

His argument is foreclosed by Almendarez-Torres v. United States, in which the

Supreme Court held that, for sentencing enhancement purposes, a defendant’s prior

conviction does not have to be alleged in the indictment or submitted to a jury and

proved beyond a reasonable doubt. 523 U.S. 224, 226-27, 239-40, 118 S.Ct.1219,

1222, 1228-29, 140 L.Ed.2d 350 (1998).

                                         III.

      Corey argues that the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is

unconstitutionally vague. Under § 924(e), a person who violates § 922(g)(1) and

has three previous convictions “for a violent felony or a serious drug offense, or

both, committed on occasions different from one another” will be subject to a

mandatory minimum sentence of 15-years’ imprisonment. 18 U.S.C. § 924(e).

The residual clause of § 924(e)(2)(B)(ii) defines a violent felony as any offense

that “otherwise involves conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).


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      In James v. United States, the Supreme Court rejected the argument “that the

[ACCA’s] residual provision is unconstitutionally vague.” 550 U.S. 192, 210 n.6,

127 S.Ct. 1586, 1598 n.6, 167 L.Ed.2d 532 (2007). The Court stated that “[t]he

statutory requirement that an unenumerated crime ‘otherwise involve conduct that

presents a serious potential risk of physical injury to another’ is not so indefinite as

to prevent an ordinary person from understanding what conduct it prohibits.” Id.,

550 U.S. at 210 n.6, 127 S.Ct. at 1598 n.6. (brackets omitted). In Sykes v. United

States, the Supreme Court noted that the residual clause “states an intelligible

principle and provides guidance that allows a person to conform his or her conduct

to the law. Although this approach may at times be more difficult for courts to

implement, it is within congressional power to enact.” __ U.S. __, __, 131 S.Ct.

2267, 2277, 180 L.Ed.2d 60 (2011) (citation and quotation omitted). The holdings

in James and Sykes foreclose Corey’s vagueness challenge. See United States v.

Chitwood, 676 F.3d 971, 978 n.3 (11th Cir. 2012), cert. denied, __ U.S. __, 133

S.Ct. 288, 184 L.Ed.2d 169 (2012) (stating that the position taken by the Supreme

Court in Sykes appears to foreclose lower courts from concluding that the residual

clause is unconstitutionally vague).

      AFFIRMED.




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