                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS FILED
                                               U.S. COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
                      ________________________    NOVEMBER 1, 2006
                                                  THOMAS K. KAHN
                            No. 06-11876               CLERK
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 05-20392-CR-JAG

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                  versus

DOMINIQUE LEWIS,

                                                     Defendant-Appellant.


                       ________________________

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


                           (November 1, 2006)


Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:
      Dominique Lewis appeals his convictions and sentences imposed after he

pled guilty to conspiracy to interfere with commerce by robbery, in violation of 18

U.S.C. § 1951(a) (Count I), and interference with commerce by robbery, in

violation of § 1951(a) (Count II), and after a jury found him guilty of brandishing a

firearm in furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (Count IV). Lewis asserts: (1) his conviction under

§ 924(c) violated the Commerce Clause; (2) his trial on the § 924(c) charge

violated the Double Jeopardy Clause; and (3) the district court erred in denying

him a U.S.S.G. § 3E1.1 acceptance of responsibility reduction. After review, we

affirm Lewis’s convictions and sentences.

                                 I. DISCUSSION

A. Commerce Clause

      Lewis first contends § 924(c) is unconstitutional because Congress did not

explicitly link the offense conduct with interstate commerce, and, therefore, lacked

the power to enact it under the Commerce Clause. Specifically, he asserts linking

the possession of a firearm to a generic “crime of violence” does not establish the

crime had a “substantial effect on interstate commerce.” Although Lewis

acknowledges we have rejected facial challenges to § 924(c), he states “the issue is




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raised here for consideration by this Court under the factual circumstances of this

case.”

         We review constitutional issues de novo. United States v. Wright, 392 F.3d

1269, 1280 (11th Cir. 2004), cert. denied, 125 S. Ct. 1751 (2005). 18 U.S.C.

§ 924(c)(1)(A) prohibits, inter alia, the possession or use of a firearm “during and

in relation to any crime of violence . . . for which the person may be prosecuted in

a court of the United States.” 18 U.S.C. § 1951(a) prohibits, inter alia, robbery

which “obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce.” We have rejected facial challenges to § 924(c). See

United States v. Ferreira, 275 F.3d 1020, 1028 (11th Cir. 2001) (rejecting

defendant’s argument that “Congress lacked the power under the Commerce

Clause to enact [§ 924(c)]”); United States v. DePace, 120 F.3d 233, 235 n.2 (11th

Cir. 1997) (rejecting defendant’s argument that § 924(c) “is an unconstitutional

effort to regulate intrastate, non-economic activity”).

         To the extent Lewis argues Congress lacked the power to enact the statute,

we reject this argument because we have rejected facial challenges to § 924(c). See

id. To the extent Lewis is challenging the statute’s constitutionality as applied to

him, Lewis pled guilty to violations § 1951(a). Additionally, Lewis agreed the

store he robbed was a store engaged in interstate commerce and a number of the



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firearms he stole had moved in interstate commerce. As a result, the predicate

crime of violence in this case admittedly was one that involved interstate

commerce. Accordingly, under the facts of this case, § 924(c) was constitutionally

applied.

B. Double Jeopardy

      Lewis next contends his trial and conviction on Count IV violated the

Double Jeopardy Clause because he had already pled guilty to the lesser-included

robbery offense. Specifically, he asserts that, because the Government was

required to prove a violation of § 1951(a) in order to obtain a conviction under

§ 924(c), once he pled guilty to violating § 1951(a), the Double Jeopardy Clause

prohibited the prosecution of the § 924(c) charge.

      We recently held that, when a double jeopardy claim is not asserted at trial,

the issue is waived. United States v. Williams, 445 F.3d 1302, 1306 n.4 (11th Cir.

2006). As a result, we refused to hear the merits of the claim. Id. Because Lewis

failed to assert his double jeopardy claim during trial, he has waived this issue.

C. Acceptance of Responsibility

      Lewis next contends that, because he admitted during the plea colloquy all

of the essential factual elements constituting a § 1951(a) violation, the district court

erred in not granting him an acceptance of responsibility reduction pursuant to



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§ 3E1.1. Lewis notes the Government’s factual proffer at the plea hearing did not

mention the firearm because it was unnecessary to sustain the § 1951(a)

convictions and was not relevant in calculating the applicable Guidelines range.

Lewis asserts that, in § 924(c) cases, the Guidelines prohibit the consideration of

the use and possession of a firearm in determining the applicable Guidelines range

for the underlying crime of violence.

      “In reviewing a trial court’s refusal to grant an adjustment [under § 3E1.1],

[we] review[] interpretations of the sentencing guidelines de novo and factual

determinations for clear error.” United States v. Coe, 79 F.3d 126, 127 (11th Cir.

1996) (citations omitted). In Coe, we rejected a claim nearly identical to the

instant claim. See id. at 127-28. We explained:

      Section 3E1.1 requires a downward adjustment “[i]f the defendant
      clearly demonstrates acceptance of responsibility for his offense.”
      U.S.S.G. § 3E1.1(a). To determine whether a defendant qualifies, a
      sentencing court should consider whether he “truthfully admitt[ed] or
      [did] not falsely deny [] any additional relevant conduct for which the
      defendant is accountable under § 1B1.3 (Relevant Conduct).”
      U.S.S.G. § 3E1.1, comment. (n. 1). Relevant conduct under § 1B1.3
      includes
             all acts and omissions committed, aided, abetted,
             counseled, commanded, induced, procured, or willfully
             caused by the defendant . . . that occurred during the
             commission of the offense of conviction, in preparation
             for that offense, or in the course of attempting to avoid
             detection or responsibility for that offense.




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Id. at 127. In Coe, the defendant pled guilty to illegally possessing a firearm. Id.

In doing so, he admitted to using a gun during a crime of violence, but first denied

and subsequently stated he could not remember whether he had brandished the

weapon. Id. The district court found Coe had not accepted responsibility because

he did not admit to brandishing the weapon. Id. On appeal, he argued whether he

accepted responsibility for the brandishing of the weapon was not “relevant

conduct” within the meaning of § 1B1.3. Id. We rejected that argument, holding

the defendant’s brandishing of a gun was “relevant conduct” within the meaning of

§ 1B1.3, and Coe thus was not entitled to an acceptance of responsibility reduction.

Id. at 128.

       Although Lewis admitted he committed the robbery, he denied brandishing

or possessing a firearm during the commission of that robbery, instead choosing to

go to trial on the § 924(c) charge. The jury found him guilty of carrying and using

a firearm during the robbery, specifically finding Lewis brandished the firearm.

Based on these facts, Lewis’s brandishing the firearm was “relevant conduct”

within the meaning of § 1B1.3. See Coe, 79 F.3d at 128. Accordingly, because

Lewis did not admit to all of the relevant conduct as related to all of the offenses of

conviction, he was not entitled to an acceptance of responsibility reduction. See

U.S.S.G. § 3E1.1, comment. (n.1).



                                           6
       Finally, the district court’s denial of a § 3E1.1 reduction does not violate the

U.S.S.G. § 2K2.4 rule against “double counting” because that rule merely prohibits

the application of a specific offense characteristic. See U.S.S.G. § 2K2.4,

comment. (n.4) (prohibiting the application of a specific offense characteristic for

possession, brandishing, use, or discharge of a firearm when a defendant is

convicted of both a § 924(c) offense and the underlying offense). No such

characteristic was applied in this case.1

                                    II. CONCLUSION

       Lewis’s conviction under § 924(c) did not violate the Commerce Clause, and

his trial on the § 924(c) charge did not violate the Double Jeopardy Clause.

Additionally, the district court did not err in denying him a reduction for

acceptance of responsibility.

       AFFIRMED.




       1
          We note that post-Coe, the commentary to U.S.S.G. § 2K2.4 was amended to “clarify
under what circumstances defendants sentenced for violations of 18 U.S.C. § 924(c) in conjunction
with convictions for other offenses may receive weapon enhancements contained in the guidelines
for those other offenses.” U.S.S.G. App. C., Amendment 599 (emphasis added). This amendment
concerns sentencing enhancements, not reductions. Lewis is appealing the denial of a reduction, so
the amendment to the commentary does not apply to his case.

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