                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 09-15611         ELEVENTH CIRCUIT
                                                  SEPTEMBER 3, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

               D. C. Docket No. 08-00234-CR-ORL-18-DAB

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

GLENN DEJARNETT THORTON,

                                                         Defendant-Appellant.


                       ________________________

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


                           (September 3, 2010)


Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Glenn Dejarnett Thorton appeals his convictions and sentences for

possession of a firearm and ammunition by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1) and 2 (Count 6), and using and carrying

a firearm during and in relation to and in furtherance of a drug-trafficking crime, in

violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count 7). Thorton was sentenced to

120 months imprisonment on Count 6 and 202 months imprisonment on Count 7,

with those sentences to be served consecutively.

                                          I.

      The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides a

mandatory minimum sentence of fifteen years for anyone who violates 18 U.S.C. §

922(g)(1) after three convictions for a violent felony or a serious drug offense. In

this case, Thorton pled guilty to violating § 922(g)(1). At his sentencing hearing,

the district court determined that he had three previous convictions for qualifying

offenses making him subject to the § 924(e)(1) sentence enhancement. The district

court, however, did not impose the enhancement and instead sentenced Thorton to

only ten years in prison on that count because his written plea agreement stated that

was the maximum sentence he could receive. Thorton argues that the citation to §

922(e)(1) should be removed from his written judgment of conviction because he

was not sentenced under the ACCA.



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      We do not need to decide whether the district court erred by failing to apply

the ACCA because the government has not cross appealed Thorton’s sentence. See

Greenlaw v. United States, 554 U.S. 237, 128 S.Ct. 2559, 2564 (2008) (holding

that a court of appeals may not increase a defendant’s sentence in the absence of an

appeal or cross appeal by the government). Because Thorton’s written judgment of

conviction does not accurately reflect the district court’s oral sentence, we remand

to the district court to delete the reference to 18 U.S.C. § 924(e)(1) in the written

judgment of conviction. See United States v. Ridgeway, 319 F.3d 1313, 1315

(11th Cir. 2003) (noting that an oral sentence controls when it is in conflict with

the written judgment of conviction).

                                           II.

      Thorton also challenges the constitutionality of § 922(g)(1) . “Generally,

we review de novo the constitutionality of a statute because it is a question of law.”

United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, we review

Thorton’s challenge only for plain error because he raises it for the first time on

appeal. See id. “Plain error occurs if (1) there was error, (2) that was plain, (3)

that affected the defendant’s substantial rights, and (4) that seriously affected the

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

marks omitted).



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      Thorton asserts that § 922(g)(1) is an invalid exercise of Congress’

Commerce Clause power because possession of a firearm by a convicted felon is

not conduct which has a substantial impact on interstate commerce. Thorton’s

argument is foreclosed by United States v. Scott, 263 F.3d 1270, 1274 (11th Cir.

2001). He also argues that § 922(g)(1) is unconstitutional as applied to him

because the government failed to prove that his possession of a firearm had a

substantial impact on interstate commerce. Thorton’s argument is without merit.

Section 922(g) “only requires that the government prove some ‘minimal nexus’ to

interstate commerce, which it may accomplish by ‘demonstrat[ing] that the firearm

possessed traveled in interstate commerce.’” Wright, 607 F.3d at 715–16 (quoting

Scott, 263 F.3d at 1274)). Thorton admitted as part of his guilty plea that the

firearms he had possessed had traveled in interstate commerce. We conclude that

no error occurred, plain or otherwise.

      Thorton also asserts that § 924(c) is an invalid exercise of Congress’

Commerce Clause power. That argument is foreclosed by United States v.

Ferreira, 275 F.3d 1020, 1028 (11th Cir. 2001).

                                         III.

      Relying on District of Columbia v. Heller, 128 S.Ct. 2783 (2008), Thorton

argues that §§ 922(g)(1) and 924(c) violate the Second Amendment. Because he



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raises these arguments for the first time on appeal, we again review only for plain

error. See Wright, 607 F.3d at 715. As for Thorton’s challenge to § 922(g)(1), we

have already rejected it. See United States v. Rozier, 598 F.3d 768, 770–71 (11th

Cir. 2010). His challenge to § 924(c) is also without merit. Section 924(c)

imposes enhanced penalties on “any person who, during and in relation to any

crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm . . . .” See 18 U.S.C. §

924(c)(1)(A). As the Supreme Court observed in Heller, “the right secured by the

Second Amendment is not unlimited.” 128 S.Ct. at 2816. Nothing in that decision

suggests that § 924(c) violates the Second Amendment.

                                         IV.

      Finally, Thorton contends that § 924(c)(1)(A)(i), which requires a district

court to sentence a defendant to “not less than five years” in prison, is ambiguous

because it does not specify the maximum sentence that may be imposed. See 18

U.S.C. § 924(c)(1)(A)(i). He argues that under the rule of lenity the maximum

sentence should be five years rather than life imprisonment. See United States v.

Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000) (observing that “every conviction

under § 924(c)(1)(A) carries with it a statutory maximum sentence of life

imprisonment, regardless of what subsection the defendant is sentenced under”).



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We find no merit in Thorton’s argument. Congress’ express inclusion of a

minimum sentence in § 924(c)(1)(A)(i), but not a maximum sentence, does not

make that provision ambiguous. It merely evidences Congress’ intent to give

district courts discretion in determining the maximum sentence to impose.

                                        V.

      We affirm Thorton’s convictions and sentences and remand for the limited

purpose of removing the citation to 18 U.S.C. § 924(e)(1) on his written judgment

of conviction.

      AFFIRMED AND REMANDED.




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