             Case: 13-14104    Date Filed: 08/21/2014   Page: 1 of 7


                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14104
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 2:13-cr-00021-AKK-TMP-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

DARRYL LEE BAXTER,

                                                           Defendant- Appellant.


                        __________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                       _________________________

                               (August 21, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Darryl Lee Baxter appeals his conviction on two counts of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of
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dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A).

After reviewing the record on appeal and the briefs filed by the parties, we affirm.


                                          I

       A grand jury indicted Darryl Lee Baxter on one count of being an unlicensed

firearm dealer, and two counts of being a felon in possession of a firearm. The

indictment alleged that Mr. Baxter had three prior Alabama convictions for

forgery. Prior to trial, Mr. Baxter moved to dismiss the felon-in-possession counts,

arguing that his prior forgery convictions were void ab initio under Alabama state

law.


       The district court denied his motion, finding that (1) Mr. Baxter was not

asserting a facial defect in the indictment or the manner in which it was

commenced, but rather challenging the sufficiency of the evidence; (2) even if Mr.

Baxter could use a pretrial motion to test the sufficiency of the government’s

evidence, he could not raise a collateral attack on the validity of his prior felony

convictions under Lewis v. United States, 445 U.S. 55, 100 (1980); and (3) under

Alabama law, at least two of the forgery convictions did not appear to be invalid,

and a state court had not yet set them aside.




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      Mr. Baxter pled guilty to all three counts in the indictment, reserving the

right to appeal the denial of the motion to dismiss. The district court sentenced him

to a total of 18 months’ imprisonment followed by 1 year of supervised release.


                                          II

      We review the denial of a motion to dismiss an indictment for abuse of

discretion, but review the legal sufficiency of the allegations in the indictment de

novo. See United States v. York, 428 F.3d 1325, 1332 n.8 (11th Cir. 2005). An

abuse of discretion occurs if a district court “fails to apply the proper legal standard

or to follow proper procedures in making the determination, or makes findings of

fact that are clearly erroneous.” United States v. Izquierdo, 448 F.3d 1269, 1276

(11th Cir. 2006) (quotation marks omitted). We are bound by prior panel decisions

unless or until we overrule them while sitting en banc, or they are overruled by the

Supreme Court. See United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.

2008).


         “A party may raise by pretrial motion any defense, objection or request that

the court can determine without a trial of the general issue.” Fed. R. Crim. P.

(12)(b)(2). A motion alleging a defect in instituting the prosecution or a defect in

the indictment must be raised before trial, unless the defect is one regarding the

district court’s lack of jurisdiction or failure to state an offense, which may be


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brought at any time while the case is pending. See Fed. R. Crim. P. 12(b)(3)(A)-

(B).


       “An indictment is sufficient if it: (1) presents the essential elements of the

charged offense, (2) notifies the accused of the charges to be defended against, and

(3) enables the accused to rely upon a judgment under the indictment as a bar

against double jeopardy for any subsequent prosecution for the same offense.”

United States v. Steele, 178 F.3d 1230, 1233-34 (11th Cir. 1999) (quotation marks

omitted). “The sufficiency of a criminal indictment is determined from its face.”

United States v. Salman, 378 F.3d. 1266, 1268 (11th Cir. 2004). In order to avoid

dismissal, the charging document “must contain the elements of the offense

intended to be charged, and sufficiently apprise the defendant of what he must be

prepared to meet.” United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006).


       A district court may not dismiss an indictment based on a determination of

facts that should have been developed at trial. See id. Indeed, in United States v.

Critzer, 951 F.2d 306 (11th Cir. 1992), we held that a district court cannot properly

dismiss an indictment on the ground that there is insufficient evidence to support

the allegations. Id. at 307. Specifically, we noted that there was “no summary

judgment procedure in criminal cases. Nor do the rules provide for a pre-trial

determination of sufficiency of the evidence… The sufficiency of a criminal


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indictment is determined from its face. The indictment is sufficient if it charges in

the language of the statute.” Id.




                                            III

       On appeal, Mr. Baxter contends that the district court abused its discretion in

denying his motion to dismiss the two counts of his indictment charging him with

being a felon in possession of a firearm. 1 He argues that his motion to dismiss was

the appropriate mechanism for the district court to resolve his challenge to the

felon-in-possession counts of his indictment, and contends that we should follow

an earlier decision affirming, procedurally, the dismissal of an indictment. See

United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir. 1982). He further argues

that the district court incorrectly determined that his claim failed because he could

not properly challenge the validity of his predicate convictions.

       Based on a review of the evidence and our precedent, the indictment

sufficiently charged Mr. Baxter with being a felon in possession. Under §

922(g)(1), the government must prove three elements: (1) that the defendant was a

convicted felon; (2) that the defendant had knowledge that he was in possession of


1
  Mr. Baxter did not challenge Count 3 before the district court and does not do so now on
appeal. Therefore, any claim in that respect is abandoned. See United States v. Jernigan, 341
F.3d 1273, 1283 n.8 (11th Cir. 2003).
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a firearm; and (3) that the firearm affected or traveled in interstate commerce. See

United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004).              Here, the

indictment presented the essential elements of the charged offense, tracking the

language of § 922(g)(1) and 18 U.S.C. § 922(a)(1)(A). It notified Mr. Baxter of

the charges to be defended against, and also enabled him to rely upon a judgment

under the indictment as a bar against double jeopardy for any subsequent

prosecution for the same offense. See Steele, 178 F.3d at 1233-34.


      In support of his argument that a motion to dismiss was the appropriate

mechanism for the district court to resolve his challenge to the felon in possession

counts, Mr. Baxter relies on our decision in Zayas-Morales. There, we affirmed

the dismissal of charges for transporting illegal aliens, in violation of 18 U.S.C. §

1324(a)(1). See 685 F.2d at 1273-78. In doing so, we noted that (1) criminal intent

was necessary under the statute, and (2) the government could no longer prove, as

a matter of law, that defendants possessed the necessary general criminal intent,

because it had stipulated to certain facts undercutting its case prior to trial. Id. at

1278. We have acknowledged the different results reached in Critzer and Zayas-

Morales, see Salman, 378 F.3d at 1268 n.3,4, but emphasized that the stipulated

facts in Zayas-Morales supported the procedural dismissal there.             No such

stipulated facts existed here.



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       As we explained above, a court ruling on a motion to dismiss may not look

beyond the four corners of the indictment, nor may it properly dismiss an

indictment for insufficient evidence. See Salman, 378 F.3d. at 1268; Critzer, 951

F.2d at 307. Mr. Baxter’s motion to dismiss the indictment impermissibly asked

the district court to both look beyond the indictment (by calling into question the

validity of his prior convictions) and to dismiss for insufficient evidence (by

arguing that the government could not prove beyond a reasonable doubt that Mr.

Baxter was a convicted felon under Alabama law). The question of whether Mr.

Baxter was a convicted felon at the time of the indictment was an issue of fact that

should have been developed at trial for a jury (or for the court in a bench trial), as

the finder of fact, to decide. On this record, we conclude that the district court did

not err in denying the motion to dismiss. Accordingly, we affirm. 2


                                               IV

       Mr. Baxter’s convictions are affirmed.


       AFFIRMED.




2
  Having decided that the court properly denied the motion to dismiss, we do not reach the other
issues raised by Mr. Baxter in his brief.
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