           Case: 18-13435   Date Filed: 06/12/2019   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13435
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 8:18-cr-00077-SDM-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JAMAAR DANGLO HAYES,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 12, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jamaar Hayes appeals his conviction and sentence for being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924(e). On appeal, Hayes challenges: (1) the district court’s determination that the

government did not have to prove Hayes knew he was a convicted felon under

§ 924(e); (2) the district court’s reliance on its own findings that Hayes’s three

predicate Armed Career Criminals Act (“ACCA”) offenses occurred on different

occasions; (3) the Fifth and Sixth Amendment violations resulting from the district

court’s determination that Hayes’s three predicate ACCA offenses occurred on

different occasions; and (4) the district court’s determination that his prior

convictions under Fla. Stat. §893.13 were serious drug offenses under § 924(e).

We will consider each challenge in turn.

                                           I.

      When a defendant fails to object to a Rule 11 violation occurring during his

plea colloquy in the district court, we will review only for plain error. United

States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). Where a defendant

raises a challenge to the sufficiency of the indictment for the first time on appeal,

we will conclude that the indictment was sufficient “unless it is so defective that it

does not, by any reasonable construction, charge an offense for which the

defendant is convicted.” United States v. Lang, 732 F.3d 1246, 1247 (11th Cir.

2013) (quotations omitted).


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      Section 924(a)(2) of Title 18 of the United States Code provides that a

person who “knowingly violates” § 922(g) shall be imprisoned for a maximum of

ten years. 18 U.S.C. § 924(a)(2). Section 922(g)(1) of Title 18 of the United

States Code criminalizes the possession of a firearm or ammunition in or affecting

interstate commerce by a convicted felon. 18 U.S.C. § 922(g)(1). The offense

includes three distinct elements: (1) possession of a firearm (“possession

element”); (2) by a convicted felon (“status element”); and (3) the possession was

in or affecting interstate or foreign commerce (“commerce element”). United

States v. Rehaif, 888 F.3d 1138, 1143 (11th Cir. 2018), cert. granted, 139 S.Ct. 914

(Jan. 11, 2019) (No. 17-9560).

      In Rehaif, we analyzed § 924(a)(2) and held that “knowingly” does not apply

to the status element of § 922(g), which in Rehaif was the defendant’s status as an

unlawful alien. Id. at 1144-45. Prior to Rehaif, we specifically analyzed

§ 922(g)(1) and held that the government was not required to prove that the

defendant knew he was a convicted felon when he unlawfully possessed the

firearm at issue. United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997).

      Under the prior panel precedent rule, a prior panel’s holding is binding on all

subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by us sitting en banc. United States v. Archer,

531 F.3d 1347, 1352 (11th Cir. 2008). There is no exception to the prior panel


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precedent rule for overlooked or misinterpreted precedent. United States v. Fritts,

841 F.3d 937, 942 (11th Cir. 2016). Likewise, a grant of certiorari does not

change the law and is not a basis for relief, because we are required to apply our

binding precedent until the Supreme Court issues a decision that changes the law.

Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015).

      A review of our precedent reveals that Hayes’s challenge is foreclosed by

our decisions in Rehaif and Jackson. See Rehaif, 888 F.3d at 1144-45; Jackson,

120 F.3d at 1229. As we are bound by our precedent, we affirm.

                                           II.

      Generally, we review de novo whether predicate offenses meet the different

occasions requirement of the ACCA. United States v. Longoria, 874 F.3d 1278,

1281 (11th Cir. 2017). However, we review claims raised for the first time on

appeal for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). To satisfy the plain error standard, an appellant must show: (1) an error

occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it

seriously affected the fairness of the judicial proceedings. Id. “An error is not

plain unless it is contrary to explicit statutory provisions or to on-point precedent in

this Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357

(11th Cir. 2009) (per curiam).




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      If a defendant violates § 922(g) and has three previous felony convictions

that are violent felonies or serious drug offenses that were “committed on

occasions different from one another,” that defendant is an armed career criminal

under the ACCA. 18 U.S.C. § 924(e)(1). We have previously held that a district

court may determine for itself whether prior convictions exist and whether they

were committed on different occasions, so long as it limits its inquiry to the

statutory definition of the prior offense, the indictment, the plea agreement, the

plea colloquy, and “any explicit factual finding by the trial judge to which the

defendant assented.” Longoria, 874 F.3d at 1281. Similarly, we have held that a

district court may consider Shepard1 documents in determining whether a

defendant committed ACCA predicate offenses on different occasions without

proof beyond a reasonable doubt. United States v. Overstreet, 713 F.3d 627, 635

(11th Cir. 2013).

      In Descamps, the Supreme Court held that a sentencing court may look only

to the statutory definitions of the elements of a defendant’s prior offenses of

conviction, and not to the particular facts underlying those convictions, in

determining whether a prior offense is a violent felony under § 924(e). Descamps

v. United States, 570 U.S. 254, 262-64 (2013).




      1
          Shepard v. United States, 544 U.S. 13 (2005).
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      In Sneed, we held that sentencing courts are limited to the examination of

Shepard documents in determining whether prior offenses of conviction were

committed on different occasions under § 924(e)(1). United States v. Sneed, 600

F.3d 1326, 1332 (11th Cir. 2010). Thereafter, we held that a district court may

determine whether a defendant’s prior convictions were committed on separate

occasions under the ACCA based on undisputed statements in the PSI. United

States v. McCloud, 818 F.3d 591, 595-96 (11th Cir. 2016). However, any portions

to which the defendant specifically objected must be proven by the government by

a preponderance of the evidence. Id.

      Here, the district court did not plainly err by determining for itself whether

Hayes’s three predicate offenses occurred on different occasions, because the court

was permitted to make this finding using Shepard documents. See Longoria, 874

F.3d at 1281. Moreover, the Shepard documents in the record, including the

judgments of Hayes’s prior convictions, support the district court’s conclusion that

the predicate offenses were committed on different occasions. Accordingly, we

affirm.

                                         III.

      Ordinarily, we review constitutional challenges to a sentence de novo.

United States v. Deshazior, 882 F.3d 1352, 1354-55 (11th Cir. 2018), cert. denied,




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(Feb. 25, 2019) (No. 17-8766). However, as previously stated, we review claims

raised for the first time on appeal for plain error. Rodriguez, 398 F.3d at 1298.

      Generally, the Fifth Amendment protects the right to be indicted by a grand

jury, and the Sixth Amendment protects the right to trial by jury. U.S. Const.

Amend. V; U.S. Const. Amend. VI. Accordingly, in Alleyne v. United States, the

Supreme Court held that “[a]ny fact that, by law, increases the penalty for a crime

is an “element” that must be submitted to the jury and found beyond a reasonable

doubt. Alleyne v. United States, 570 U.S. 99, 103 (2013). Notably, the Supreme

Court reserved from this rule the fact of a prior conviction. Id. at 111 n.8; see also

Almendarez-Torres v. United States, 523 U.S. 224, 243-247 (1998). Additionally,

in Sneed, we recognized the Sixth Amendment concerns of Shepard. Sneed, 600

F.3d at 1331-32.

      In Overstreet, we also held that the government is not required to prove the

existence of the defendant’s prior convictions beyond a reasonable doubt in order

to sentence him under the ACCA, regardless of whether the defendant admits to

the convictions during his plea colloquy. Overstreet, 713 F.3d at 635. Further, in

Longoria, we rejected the defendant’s contention that his ACCA sentence violated

his Fifth and Sixth Amendment rights because the district court determined that his

convictions occurred on different occasions, based on our prior precedent allowing

this practice and acknowledging that the Supreme Court has held that a penalty


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provision authorizing a court to increase a sentence based on prior convictions

need not be alleged in the indictment. Longoria, 874 F.3d at 1283.

      A review of our precedent indicates that Hayes’s challenge is foreclosed by

our precedents in Longoria and Overstreet. Longoria, 874 F.3d at 1283;

Overstreet, 713 F.3d at 635. The district court was permitted to determine for

itself whether Hayes’s convictions were committed on different occasions using

Shepard documents, and doing so did not violate Hayes’s Fifth or Sixth

Amendment rights. Longoria, 874 F.3d at 1281, 1283. Accordingly, the district

court did not plainly err and we affirm.

                                           IV.


      We review de novo whether a defendant’s prior convictions qualify as

serious drug offenses under the ACCA. Longoria, 874 F.3d at 1281. In Smith, we

reviewed the defendants’ convictions under Fla. Stat. § 893.13 and determined that

the convictions qualified as serious drug offenses because they met the statutory

requirements of § 924(e)(2)(A)(ii), which requires: (1) the conviction be for a state

law offense; (2) punishable by at least ten years’ imprisonment; and (3) involving

manufacturing, distributing, or possessing with intent to manufacture or distribute,

a controlled substance. United States v. Smith, 775 F.3d 1262, 1267 (11th Cir.

2014) (citing 18 U.S.C. § 924(e)(2)(A)(ii)). This Court explained that no element

of mens rea with regard to the illicit nature of the controlled substance was

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contemplated by the definition, and that we look to the plain language of the

definitions to determine their elements when the language is, as in

§ 924(e)(2)(A)(ii), unambiguous. Smith, 775 F.3d at 1267-68.

      Again, a review of our precedent reveals that Hayes’s challenge his

foreclosed by our decision in Smith, in which we analyzed the same Florida statute

that Hayes was convicted under. Smith, 775 F.3d at 1267. Because we are bound

by our precedent, we affirm.

      AFFIRMED.




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