           Case: 17-13619   Date Filed: 05/04/2020   Page: 1 of 14



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 17-13619
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:17-cr-00030-VEH-TMP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

VAUGHN ALEXANDER CROPPER,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 4, 2020)

Before JILL PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:
              Case: 17-13619     Date Filed: 05/04/2020   Page: 2 of 14



      Vaughn Cropper, proceeding pro se, appeals his conviction and 188-month

sentence for possession of a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g). After careful consideration, we affirm.

                                I.   BACKGROUND

      Cropper was convicted after a jury trial of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g). At a pretrial status conference,

the district court determined that Cropper had knowingly waived his right to

counsel, and the court allowed him to proceed pro se. Cropper stipulated at the

pretrial status conference that he had prior felony convictions.

      The following facts were established at trial. Christopher Mitchell, an on-

duty security officer at the USA Economy Lodge in Irondale, Alabama called and

requested that law enforcement come to the motel after a woman complained that

she had been fighting in her motel room with a guest of hers, Cropper. Mitchell

secured the woman in the main office lobby and then retrieved Cropper from the

motel room. Law enforcement arrived at the motel and approached Cropper, who

admitted to having a firearm in his pocket. The firearm was manufactured in

Florida with parts made in Italy. Cropper was arrested and later released.

      A task force officer with the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) interviewed Cropper the next day. After Cropper was read his




                                          2
                 Case: 17-13619        Date Filed: 05/04/2020       Page: 3 of 14



Miranda rights, 1 he admitted to possessing a firearm and acknowledged that he

been convicted of a felony.

      At trial, Cropper stipulated that he previously had been convicted of a felony

and that the jury could consider the fact of his prior state convictions as proven

beyond a reasonable doubt. Despite the stipulation, Cropper stated in his closing

argument that “[a]lthough [he has] a felony conviction” he has never been

convicted of violence and the Constitution does not mention forbidding convicted

felons from possessing firearms. Doc. 62 at 27, 32. 2

      Cropper requested a jury instruction on the defense of necessity and argued

that he had a constitutional right to bear arms. The district court denied his

requested jury instruction. In instructing the jury, the district court stated that the

government had the burden of proving beyond a reasonable doubt that Cropper:

(1) knowingly possessed a firearm in or affecting interstate or foreign commerce

and (2) had been convicted of a felony prior to possessing the firearm. The district

court did not instruct the jury that the government had to prove that Cropper knew

that he had a prior felony conviction when he possessed the firearm. As to the

element of the charged crime requiring a connection to interstate or foreign

commerce, the district court stated that the government had to prove only that the



      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
      2
          “Doc. #” refers to the district court’s numbered docket entry.
                                                 3
              Case: 17-13619     Date Filed: 05/04/2020   Page: 4 of 14



firearm moved from one state to another at some point. Cropper did not object to

the district court’s instructions to the jury. The jury found Cropper guilty.

      In Cropper’s presentence investigation report (“PSR”), the probation officer

noted that Cropper was subject to an offense-level enhancement under the Armed

Career Criminal Act (“ACCA”) because he had three prior convictions that

qualified as “serious drug offenses” under 18 U.S.C. § 924(e)(2). Section

924(e)(1) requires a 15-year mandatory minimum sentence for individuals who

violate § 922(g) and have three prior convictions for a violent felony or a serious

drug offense. 18 U.S.C. § 924(e)(1).

      Because Cropper met the requirements for the ACCA enhancement, the PSR

stated that his appropriate offense level was 33, under U.S.S.G. § 4B1.4(b)(3)(B),

and his appropriate criminal history category was IV, under U.S.S.G.

§ 4B1.4(c)(3). Based on his total offense level and criminal history score,

Cropper’s guideline range was 188 to 235 months’ imprisonment. Because

Cropper was an armed career criminal under ACCA, the minimum imprisonment

term was 15 years and the maximum imprisonment term was life, under 18 U.S.C.

§ 924(e)(1). Cropper filed objections to the PSR that are not relevant to this

appeal.




                                          4
              Case: 17-13619      Date Filed: 05/04/2020   Page: 5 of 14



      At a sentencing hearing, the district court overruled Cropper’s objections to

the PSR and sentenced him to 188 months’ imprisonment and 5 years’ supervised

release.

      Cropper filed a pro se motion for release pending his appeal, arguing that the

ACCA enhancement was inappropriate because the three felonies upon which it

was based were part of the same offense. A magistrate judge denied Cropper’s

motion, explaining that, although Cropper pled guilty on the same day to the three

felonies underlying the enhancement, the felonies were still separate for sentencing

purposes because they were committed on separate occasions. In a motion to

review the magistrate judge’s order denying his request for release pending appeal,

Cropper argued to the district court that one of the convictions upon which his

ACCA enhancement was based was obtained in violation of the Fifth

Amendment’s Double Jeopardy Clause. The district court denied Cropper’s

motion for release.

      This is Cropper’s appeal.

                         II.   STANDARD OF REVIEW

      We typically review the constitutionality of a federal statute de novo, United

States v. Jackson, 111 F.3d 101, 101 (11th Cir. 1997), but constitutional objections

that were not raised before the district court are reviewed only for plain error,

United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). We also review


                                           5
              Case: 17-13619      Date Filed: 05/04/2020    Page: 6 of 14



for plain error challenges to an indictment or jury instructions raised for the first

time on appeal. United States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019).

                                III.   DISCUSSION

      Cropper raises four issues on appeal. First, he argues that his conviction is

plainly erroneous because § 922(g)(1) is unconstitutionally vague and violates

principles of substantive due process by exceeding Congress’s authority to regulate

interstate commerce. Second, he argues that § 922(g)(1) violates the Second

Amendment as applied to him because he is a nonviolent felon and was carrying a

firearm for self-defense purposes. Third, he argues that the district court erred in

enhancing his sentence under ACCA because his predicate convictions were

invalid on double jeopardy grounds. Fourth, he argues that the indictment and jury

instructions in the proceedings below were plainly erroneous because they did not

comply with Rehaif v. United States, 139 S. Ct. 2191 (2019). We address each of

these issues in turn.

A.    Section 922(g)(1) is Constitutional.

      Cropper argues that § 922(g)(1) is both unconstitutionally vague and that it

violates principles of substantive due process by exceeding Congress’s authority to

regulate interstate commerce. Section 922(g) 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 firearm or


                                           6
              Case: 17-13619      Date Filed: 05/04/2020    Page: 7 of 14



ammunition which has been shipped or transported in interstate or foreign

commerce.” 18 U.S.C. § 922(g)(1).

      Cropper argues, for the first time on appeal, that § 922(g)(1) is

unconstitutionally vague because an ordinary person would read the clause

“possess in or affecting commerce” as criminalizing a convicted felon from

“operating in a commercial capacity while possessing a firearm.” Appellant Brief

at 10. Because Cropper did not raise this argument to the district court, we review

it only for plain error. Moriarty, 429 F.3d at 1018. To establish plain error, a

defendant must show: (1) there is an error; (2) that is plain; and (3) that affects his

substantial rights. Id. at 1019. For an error to be plain, it must be obvious and

clear under current law. United States v. Carpenter, 803 F.3d 1224, 1238 (11th

Cir. 2015). Thus, to establish plain error, Cropper must present controlling

authority that clearly establishes that the district court erred. Id. at 1238-39.

      A criminal statute is unconstitutionally vague if it fails to provide people of

ordinary intelligence with a reasonable opportunity to understand what conduct it

prohibits or authorizes or encourages arbitrary and discriminatory enforcement.

United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010). Statutes have a

strong presumption of validity. Id. Cropper is unable to establish plain error

because he points to no controlling authority establishing that § 922(g) is




                                           7
              Case: 17-13619      Date Filed: 05/04/2020    Page: 8 of 14



unconstitutionally vague. Carpenter, 803 F.3d at 1238-39. Therefore, even

assuming an error, it would not be plain.

      Cropper also argues that § 922(g) is unconstitutional because it exceeds

Congress’s powers; however, this argument is foreclosed by our precedent. “[W]e

have repeatedly held that [§] 922(g)(1) is not a facially unconstitutional exercise of

Congress’s power under the Commerce Clause because it contains an express

jurisdictional requirement.” United States v. Jordan, 635 F.3d 1181, 1189 (11th

Cir. 2011); see, e.g., United States v. Scott, 263 F.3d 1270, 1273 (11th Cir. 2001)

(“[T]he 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 . . . facial constitutional attack.”) (quoting 18 U.S.C. § 922(g)(1)).

Under our 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 this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). We therefore reject Cropper’s

argument that § 922(g) exceeds Congress’s Commerce powers.

B.    Section 922(g)(1) Does Not Violate the Second Amendment.

      Cropper also argues that § 922(g)(1) is unconstitutional as applied to him

because it violates the Second Amendment. He argues that because he is a

nonviolent felon and was carrying a firearm for self-defense, the application of


                                            8
              Case: 17-13619     Date Filed: 05/04/2020    Page: 9 of 14



§ 922(g) violates his Second Amendment rights. As Cropper acknowledges, we

have held that statutes prohibiting felons from possessing firearms do not violate

the Second Amendment. United States v. Rozier, 598 F.3d 768 (11th Cir. 2010).

In Rozier, we addressed § 922(g)(1) specifically, holding that it is constitutional

even if the firearm was possessed purely for self-defense. Id. at 770. Cropper

argues that if Rozier is controlling it should be overruled. Again, we are bound by

our prior precedent. See Archer, 531 F.3d at 1352. We therefore reject Cropper’s

as-applied challenge.

C.    Cropper Cannot Collaterally Attack His Prior State Convictions.

      Cropper also argues that the district court erred in enhancing his sentence

under ACCA because one of his predicate convictions violated the Fifth

Amendment’s Double Jeopardy Clause. Cropper’s PSR identified three prior state

convictions that qualified as “serious drug offenses” under § 924(e)(2). 18 U.S.C.

§ 924(e)(2). These prior convictions included: (1) Possession of Marijuana, First

Degree, No. CC-2009-00812; (2) Unlawful Distribution of a Controlled Substance,

No. DC-2008-04344; and (3) Unlawful Distribution of a Controlled Substance, No.

DC-2008-04345. Cropper argues that the first conviction identified, No. CC-2009-

00812, was obtained in violation of the Double Jeopardy Clause because it was




                                          9
               Case: 17-13619       Date Filed: 05/04/2020       Page: 10 of 14



based on the same conduct as a juvenile conviction for marijuana possession. 3

Cropper asserts that, because his state-law marijuana conviction violated the

prohibition against double jeopardy, the district court plainly erred by enhancing

his sentence based on the conviction.

       The Supreme Court has held that, with the sole exception of convictions

obtained in violation of the right to counsel, a defendant in a federal sentencing

proceeding may not collaterally attack his prior state convictions that served as the

predicate offenses for an enhancement under § 924(e). Custis v. United States, 511

U.S. 485, 496-97 (1994); see, e.g., Lewis v. United States, 445 U.S. 55, 67 (1980)

(holding that a predecessor statute to § 924(e) did not allow collateral attacks on a

predicate conviction).

       Cropper acknowledges Custis but argues that the Supreme Court did not

specifically address a double jeopardy challenge brought against a predicate

conviction, which he argues presents different concerns. Although Cropper is

correct that a double jeopardy challenge was not at issue in Custis, the Court

expressly declined to extend the right to collaterally attack a prior conviction used




       3
         Cropper filed a “Judicial Notice Motion” requesting that we take judicial notice of
Exhibits A-E attached to his initial brief. We will take judicial notice of documents only when
they are relevant. See Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197, 1204
(11th Cir. 2004) (requiring that facts subject to Fed. R. Evid. 201(b) be “relevant to a
determination of the claims presented in a case”). Because we have determined that the
documents at issue would not impact Cropper’s appeal, we deny his motion.
                                               10
              Case: 17-13619     Date Filed: 05/04/2020    Page: 11 of 14



for an enhancement under § 924(e) beyond a right-to-counsel violation, which it

recognized as a “unique constitutional defect.” Custis, 511 U.S. at 496. Even if

the state court erred in convicting Cropper of the predicate prior conviction,

Cropper cannot obtain relief here based on this argument. The district court

therefore did not err in enhancing Cropper’s sentence under § 924(e).

D. The District Court Did Not Commit Plain Error Under Rehaif v. United
   States.

      In June 2019, after Cropper filed his initial brief in this appeal, the Supreme

Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the

Supreme Court held that, “in a prosecution under 18 U.S.C. § 922(g) . . . the

Government must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” Id. at 2200. At our direction, the parties filed supplemental

briefs addressing the impact of Rehaif on Cropper’s appeal. Cropper asks that we

vacate his conviction or, in the alternative, grant him a new trial because Rehaif

made plain that errors occurred (1) when his indictment failed to allege that he

knew of his prohibited status when he possessed a firearm and (2) when the jury

instructions at trial omitted the element of knowledge of his prohibited status. The

government concedes that these failures were plain errors under Rehaif but argues

that these errors did not affect Cropper’s substantial rights.



                                          11
              Case: 17-13619    Date Filed: 05/04/2020    Page: 12 of 14



      We review Cropper’s new challenge based on Rehaif for plain error. Reed,

941 F.3d at 1020. To obtain relief, Cropper must establish that any error both was

plain and affected his substantial rights. United States v. Moore, 954 F.3d 1322

(11th Cir. 2020). If he does so, we may correct the error if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)) (alteration adopted). In

evaluating whether the error affected Cropper’s substantial rights, we may consult

the entire record. Id.

      Cropper has established that there were errors in his indictment and jury

instructions that Rehaif made plain. Reed, 941 F.3d at 1021. The Court in Rehaif

made clear that in a prosecution under § 922 the government must prove that the

defendant knew that he belonged to the relevant category of persons barred from

possessing a firearm. Rehaif, 139 S. Ct. at 2200. Cropper’s indictment did not

allege, nor was the jury instructed that it had to find, that Cropper knew he was a

convicted felon. Accordingly, Cropper has established plain error. Reed, 941 F.3d

at 1021.

      In United States v. Reed, we similarly determined that the defendant had

established plain error under Rehaif. Id. We nonetheless concluded that the

defendant could not prove that the error affected his substantial rights because he

could not show a reasonable probability that the outcome of his trial would have


                                          12
              Case: 17-13619     Date Filed: 05/04/2020   Page: 13 of 14



been different had the error not occurred. Id. at 1021-22 (citation omitted). Reed,

who had been convicted of eight prior felonies, admitted that he had served 18

years in prison before his arrest; stipulated that he had been convicted of a felony

offense and had not had his civil rights restored, including the right to possess and

bear firearms; and testified at trial that he was not allowed to have a gun. Id. at

1020-22. We concluded that the record established that Reed knew he was a felon,

and so he could not prove that the errors affected his substantial rights or the

fairness, integrity, or public reputation of his proceedings. Id. at 1022.

      We likewise conclude that Cropper cannot establish that his substantial

rights were affected. Cropper argues that because he was placed on probation only

or sentenced to time served for his prior felony convictions, he falls within the

category of individuals who, according to Rehaif, conceivably could be unaware of

their status as convicted felons, see 139 S. Ct. at 2198. Although the fact that

Cropper served no time in prison could suggest that he was unaware of his status as

a convicted felon, other portions of the record indicate that he was aware that his

prior offenses were felonies. For example, Cropper stipulated during his trial that

he had previously been convicted of a felony offense. He also acknowledged in his

closing statement that he was a convicted felon. Other evidence in the record also

indicates that Cropper was aware of his status as a felon when he possessed the

firearm. For example, an ATF task force officer testified at trial that Cropper


                                          13
             Case: 17-13619     Date Filed: 05/04/2020   Page: 14 of 14



acknowledged that he was a convicted felon in an interview that took place on the

day after his arrest. cf. Reed, 941 F.3d at 1022.

      Because there is ample evidence in the record showing that Cropper knew of

his status as a convicted felon when he possessed the firearm, there is no

reasonable likelihood that the outcome of his trial would have been different but

for the errors in the indictment and the jury instructions. Thus, Cropper cannot

establish that his substantial rights were affected by the errors. See Reed, 941 F.3d

at 1022.

                              IV.    CONCLUSION

   For the above reasons, we affirm Cropper’s conviction and sentence.

      AFFIRMED.




                                          14
