           Case: 14-13472   Date Filed: 03/11/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13472
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:13-cr-00516-SCB-MAP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DARIOUS D. MCDANIELS,

                                                         Defendant-Appellant.

                       ________________________

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

                             (March 11, 2015)

Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Darious D. McDaniels appeals his conviction for possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that § 922(g),

which makes it illegal for certain persons to “possess in or affecting commerce,

any firearm or ammunition,” violates the Commerce Clause on its face because it

does not define “commerce” as “interstate or foreign commerce.” Alternatively, he

argues that, under the Supreme Court’s decision in United States v. Lopez, 514

U.S. 549, 115 S. Ct. 1624 (1995), the Commerce Clause requires a “substantial

nexus,” not a “minimal nexus,” between firearm possession and commerce to

support federal jurisdiction. In the event that we disagree with him and affirm his

conviction, McDaniels seeks a remand for the limited purpose of correcting

clerical errors in his Presentence Investigation Report and in the district court’s

judgment.

                                           I.

      Ordinarily, we review de novo the constitutionality of a statute. See United

States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). But because McDaniels did

not object to the constitutionality of § 922(g) before the district court, our review is

only for plain error. See id. To prevail under plain error review, McDaniels must

show: “(1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. Smith, 459 F.3d 1276, 1283 (11th Cir. 2006) (quotation marks omitted).

If McDaniels makes these showings, we may then exercise our discretion to correct


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the error, but only if it seriously “affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation marks omitted).

      McDaniels’ challenge to the constitutionality of § 922(g) doesn’t make it out

of the gate. As he concedes in his brief, this Court has already rejected each of his

Commerce Clause arguments. See United States v. Nichols, 124 F.3d 1265, 1266

(11th Cir. 1997) (rejecting the argument that § 922(g) is unconstitutional on its

face because it does not define “commerce” as “interstate or foreign commerce”);

United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (rejecting the

argument that the Supreme Court’s decision in Lopez rendered constitutionally

suspect the current “minimal nexus” test for federal jurisdiction). And we are

bound by those decisions until the Supreme Court or this Court sitting en banc

overrules them. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.

1998). Thus, McDaniels fails to show error, plain or otherwise, with respect to his

conviction.

                                            II.

      Having affirmed McDaniels’ conviction, we now turn to the clerical errors

that he has identified in his PSR and in the district court’s judgment. Both

documents contain the same error: they state that, for his conviction under 18

U.S.C. § 922(g)(1), the applicable penalty provision is 18 U.S.C. § 924(e), as

opposed to 18 U.S.C. § 924(a)(2). See PSR ¶ 70; Judgment [DE 47: 1].


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McDaniels seeks a remand for the limited purpose of correcting those errors. The

government does not oppose a remand for that purpose, but it asks us to order the

district court to correct some additional clerical errors in McDaniels’ PSR and in

the court’s judgment. Specifically, it asks that the PSR reflect (1) that McDaniels

was charged and convicted of possession of a firearm and ammunition by a

convicted felon, as opposed to possession of a firearm only, see PSR at 1, ¶ 2; and

(2) that McDaniels’ advisory guidelines range was 100 to 120 months

imprisonment pursuant to United States Sentencing Guidelines § 5G1.1(c)(1), as

opposed to § 5G1.1(a), see id. ¶ 71. The government also asks that the judgment

reflect that McDaniels pleaded guilty to possession of a firearm and ammunition

by a convicted felon. See Indictment [DE 1: 1–2] (charging McDaniels in count 1

with possession of a firearm and ammunition by a convicted felon); Acceptance of

Plea of Guilty & Adjudication of Guilt [DE 29: 1] (adjudicating McDaniels guilty

as to count 1).

      “[I]t is fundamental error for a court to enter a judgment of conviction

against a defendant who has not been charged, tried, or found guilty of the crime

recited in the judgment.” United States v. Massey, 443 F.3d 814, 822 (11th Cir.

2006) (quotations marks omitted). But sometimes that fundamental error is simply

a clerical one. Where that is the case, “[w]e may remand with instructions to




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correct [the] clerical error in the judgment.” United States v. James, 642 F.3d

1333, 1343 (11th Cir. 2011).

      Because the judgment incorrectly states that (1) McDaniels was convicted of

possession of a firearm by a convicted felon, as opposed to possession of both a

firearm and ammunition, and that (2) he was convicted under 18 U.S.C.

§§ 922(g)(1) and 924(e), as opposed to 18 U.S.C. §§ 922(g)(1) and 924(a)(2), we

remand for the limited purpose of correcting those clerical errors. We leave it up

to the district judge to decide whether to correct the clerical errors in McDaniels’

PSR. See Fed. R. Crim. P. 36 (providing that, “[a]fter giving any notice it

considers appropriate, the court may at any time correct a clerical error in a

judgment, order, or other part of the record, or correct an error in the record arising

from oversight or omission”).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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