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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15398
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:15-cr-00001-WTH-PRL-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus

REGINALD WARDELL HOWARD, JR.,

                                                        Defendant-Appellant.

                       ________________________

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

                            (November 10, 2016)

Before JORDAN, JULIE CARNES and JILL PRYOR Circuit Judges.

PER CURIAM:
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      Reginald Howard, Jr. appeals his conviction and 210-month sentence for

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

924(e)(1). On appeal, Howard argues that the district court erred by issuing jury

instructions that placed the burden on him to prove his justification defense by a

preponderance of the evidence. In addition, Howard argues that the district court

improperly declined to require the government to prove the fact of his prior

convictions to a jury before imposing a sentencing enhancement under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After careful review, we

conclude that both of Howard’s arguments are foreclosed by binding precedent.

Thus, we affirm.

                                              I.

      Ocala Police responded to a call for service at Sam’s Big Apple, a

convenience store. They were informed that an armed man had entered the store’s

bathroom. When police arrived at the store, they found the defendant, Reginald

Howard, in a closed bathroom stall. Officers commanded Howard to exit the stall,

and he complied. Officer Dale Parish conducted a pat-down search on Howard,

finding a black Glock 19 firearm loaded with ten rounds of ammunition in

Howard’s left rear pocket. Howard was arrested and subsequently charged with




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

924(e)(1).1

       Prior to trial, Howard requested that the trial be bifurcated so that the jury

could first determine Howard’s guilt and then determine whether he had the prior

convictions required for a sentencing enhancement pursuant to ACCA. The

district court rejected that proposal, noting that prior convictions used to secure a

sentencing enhancement need not be proven to the jury.

       At trial, Howard advanced a justification defense. He asserted that he only

picked up the firearm to protect himself from a man named Howard Hill and his

family, who purportedly arrived at Howard’s place of work seeking to retaliate

against him for an altercation that had taken place the previous night. At the end of

the trial, Howard argued that the jury instructions should place the burden on the

government to disprove Howard’s justification defense beyond a reasonable

doubt.2 The district court disagreed, issuing jury instructions that placed the

burden on Howard to prove his justification defense by a preponderance of the

evidence. The jury convicted Howard of being a felon in possession of a firearm.

       At sentencing, the district court found that Howard previously had been

convicted of at least three serious drug offenses, as defined by ACCA. The court’s

       1
         Howard initially was charged with two counts, one for possession of a firearm and one
for possession of ammunition. Before trial, the charges were collapsed into one count.
       2
        Howard acknowledged that Eleventh Circuit precedent likely foreclosed his position,
but sought to preserve the argument for appeal.
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finding subjected Howard to a 15 year mandatory minimum sentence. See

18 U.S.C. § 924(e)(1). The court placed Howard’s guidelines range at 210 to 262

months’ imprisonment, sentencing him to 210 months. Howard now appeals the

district court’s failure to bifurcate the trial and rejection of his proposed jury

instruction concerning the justification defense.

                                                II.

      “The issue of whether a jury instruction misstated the law or misled the jury

to the defendant’s prejudice is reviewed de novo.” United States v. Daniels,

685 F.3d 1237, 1244 (11th Cir. 2012). “In making this determination, we look at

the entire jury charge in the context of the trial record.” United States v.

Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000). We review de novo the question

of whether the Constitution requires certain facts relevant to sentencing to be

proved to a jury. United States v. Mathis, 767 F.3d 1264, 1284 (11th Cir. 2014).

                                                III.

                                                A.

      Howard argues that the district court erred in instructing the jury that he

must prove his justification defense by a preponderance of the evidence. Instead,

Howard asserts that court should have instructed the jury that the government must

prove beyond a reasonable doubt that Howard was not justified in possessing a

firearm. We disagree.


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       Under 18 U.S.C. § 922(g)(1), it is “unlawful for any person . . . who has

been convicted in any court of, a crime punishable by imprisonment for a term

exceeding one year . . . to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition; or to receive any

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

foreign commerce.” 18 U.S.C. § 922(g). “To establish a violation of § 922(g)(1),

the government must prove beyond a reasonable doubt three elements: (1) that the

defendant was a convicted felon, (2) that the defendant was in knowing possession

of a firearm, and (3) that the firearm was in or affecting interstate commerce.”

Deleveaux, 205 F.3d at 1296–97.

       We have long treated § 922(g)(1) as a “strict liability” 3 statute; that is, it

“does not require the prosecution to prove that the criminal acts were done with

specific criminal intent.” United States v. Palma, 511 F.3d 1311, 1315 (11th Cir.

2008) (internal quotation marks omitted). Howard argues that we should reverse

course and read an ill will or malice aforethought element into the statute.

According to Howard, if ill will or malice aforethought is an element of the

offense, then the district court erred in requiring Howard to prove his justification

defense by a preponderance of the evidence. Instead, in Howard’s view, because


       3
        “Strict liability” is a misnomer, as § 922(g)(1) does have a mens rea element: the
government must show that the defendant knowingly possessed a firearm, not simply that the
defendant possessed a firearm. Deleveaux, 205 F.3d at 1298.
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the justification defense would directly rebut the malice element of the offense, the

government should have had the burden to rebut the defense beyond a reasonable

doubt.

         As both parties acknowledge, Deleveaux forecloses Howard’s argument.

There, we “expressly reject[ed] [the defendant’s] contention that [a] justification

defense negates the mens rea required for a § 922(g)(1) violation and is thus not an

affirmative defense.” Deleveaux, 205 F.3d at 1296. Simply put, § 922(g)(1) does

not contain the stronger mens rea requirement Howard proposes. Instead, the

government need only prove that an individual with a requisite predicate

conviction “knowingly” possessed a firearm. Deleveaux, 205 F.3d at 1298. To

meet this standard, “[t]he prosecution need show only that the defendant

consciously possessed what he knew to be a firearm.” Id. Because § 922(g)(1)

contains no malice element, it “has no mens rea requirement for the justification

defense to negate.” Deleveaux, 205 F.3d at 1298.

         We are bound by the Deleveaux panel’s decision. Cargill v. Turpin, 120

F.3d 1366, 1386 (11th Cir. 1997) (“The law of this circuit is ‘emphatic’ that only

the Supreme Court or this court sitting en banc can judicially overrule a prior panel

decision.”). Perhaps recognizing this, Howard argues that two Supreme Court

decisions call into question Deleveaux’s continued validity.




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      The first, Staples v. United States, 511 U.S. 600 (1994), predates Deleveaux

by six years. But even if Staples enabled us to reconsider Deleveaux, it does not

call Deleveaux’s holding into doubt. In Staples, the Supreme Court considered the

mens rea required for a conviction under 26 U.S.C. § 5861(d), which prohibits

possession of unregistered machine guns. Although 26 U.S.C. § 5861(d) is silent

as to mens rea, the Court read into it a requirement that the government prove the

defendant “knew of the features of his [firearm] that brought it within the scope of

the” statute. Staples, 511 U.S. at 619. Here, § 922(g)(1) already includes a

virtually identical mens rea element, requiring the government to prove that the

defendant “consciously possessed what he knew to be a firearm.” Deleveaux,

205 F.3d at 1298. Staples provides no basis for reading a malice element into

§ 922(g)(1).

      The second case on which Howard relies, Dixon v. United States, 548 U.S. 1

(2006), only bolsters Deleveaux’s reasoning. In Dixon, the defendant was

convicted of receiving a firearm while under indictment in violation

of 18 U.S.C. § 922(n) and making false statements in connection with the

acquisition of a firearm in violation of § 922(a)(6). 548 U.S. at 3. Like

§ 922(g)(1), these statutes required the government to prove that defendants

committed the offenses “knowingly” or “willfully.” Id. at 5. The Court considered

whether a duress or necessity defense—akin to Howard’s justification defense


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here—must be disproven by the government beyond a reasonable doubt. The

Court squarely rejected that argument, holding that the duress or necessity defense

did not counteract the statutes’ mens rea elements. “Like the defense of necessity,

the defense of duress does not negate a defendant’s criminal state of mind when

the applicable offense requires a defendant to have acted knowingly or willfully;

instead, it allows the defendant to avoid liability . . . because coercive conditions or

necessity negates a conclusion of guilt even though the necessary mens rea was

present.” Id. at 6 (alteration in original) (internal quotation marks omitted).

Consequently, the Court ruled that the district court committed no error in

instructing the jury that the defendant must have proven her duress defense by a

preponderance of the evidence. Id. at 8.

      So too here. Dixon is wholly consistent with Deleveaux’s holding that due

process does not require the government to rebut a justification defense beyond a

reasonable doubt in a § 922(g)(1) prosecution. Although Dixon counsels that the

government may bear the burden of disproving a duress defense beyond a

reasonable doubt where malice is an element of the charged offense, we have

already noted that we may not read a malice requirement into § 922(g)(1).

Deleveaux, 205 F.3d at 1298. Because Deleveaux forecloses Howard’s argument,




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the district court did not err in placing the burden on Howard to prove his

justification defense by a preponderance of the evidence. 4

                                                     B.

       Howard also challenges his sentence. He argues that the district court

violated his due process rights by declining to bifurcate the trial to enable the jury

to determine whether he had the predicate convictions necessary to enhance his

sentence under ACCA. This argument is also foreclosed by binding precedent.

Facts that increase statutory minimum or maximum sentences must be submitted to

a jury and proven beyond a reasonable doubt. Alleyne v. United States, 133 S. Ct.

2151, 2162-63 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Nonetheless, where a prior conviction is used to enhance a sentence, the fact of the

prior conviction is not an “element” of the crime that must be submitted to the jury.

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998); see also Alleyne,

133 S. Ct. at 2160 n. 1 (declining to revisit Almendarez-Torres); Apprendi,

530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be


       4
          Howard argues for the first time on appeal that his defense was “more akin to self-
defense” than justification, and that the district court should have applied the burdens associated
with self-defense. But Howard’s proposed jury instruction never mentioned self-defense.
Instead, the instruction was labeled “Duress or Coercion (Justification or Necessity).” Nor did
Howard argue to the district court, in discussing the proposed jury instruction, that he was in
reality making a self-defense argument. Because Howard raises this argument for the first time
on appeal, we do not address it. See Foudy v. Miami-Dade Cty., Fla., 823 F.3d 590, 593 n.1
(11th Cir. 2016).
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submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)).

Because the jury was not required to find the fact of Howard’s prior convictions,

the district court committed no error in declining to bifurcate the trial.

                                                IV.

      For these reasons, Howard’s conviction and sentence are affirmed.

      AFFIRMED.




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