USA v. Robinson

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 17, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10648
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20569-DMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ANTONIO ROBINSON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 17, 2011)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:

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Antonio Robinson appeals his convictions and sentences for being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and possession with intent to
distribute a controlled substance, 21 U.S.C. § 841(a)(1). On appeal, Robinson
challenges his firearm conviction on the ground that 18 U.S.C. § 922(g) exceeds
Congress’s Commerce Clause power, since the statute does not limit the definition
of “commerce” to interstate or foreign commerce and does not require the
defendant’s possession of a firearm to “substantially” affect interstate commerce.1
Robinson also contends that his 180-month sentence violated his Fifth and Sixth
Amendment rights because the prior convictions used to apply the armed career
criminal enhancement were neither alleged in the indictment nor proven beyond a
reasonable doubt to the jury.2
As Robinson acknowledges in his brief, both of his arguments are
foreclosed by the law of the Supreme Court and this Circuit. “[O]nly the Supreme
Court or this Court sitting en banc can judicially overrule a prior panel decision.”
United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004). First, we have
repeatedly held that § 922(g)(1) is not a facially unconstitutional exercise of
Because Robinson never raised this issue below, we review for plain error. United1
States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005).
“We review constitutional sentencing issues de novo.” United States v. Steed, 548 F.3d2
961, 978 (11th Cir. 2008) (per curiam).
2

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Congress’s Commerce Clause power. See, e.g., United States v. Jordan, 635 F.3d
1181, 1189 (11th Cir. 2011); United States v. McAllister, 77 F.3d 387, 389–90
(11th Cir. 1996) (rejecting an argument that § 922(g) exceeds Congress’s
Commerce Clause power because it does not require a substantial effect on
interstate commerce). Robinson’s as-applied challenge to § 922(g)(1) is also
unavailing because the government introduced sufficient evidence to prove that
the firearm had previously traveled in interstate commerce.
Robinson’s second argument is also foreclosed by precedent, as the
Supreme Court has held that a prior conviction is not a fact that must be alleged in
the indictment or found by a jury beyond a reasonable doubt in order to enhance a
defendant’s sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226–27,
235 (1998). Moreover, we have applied that holding to sentences enhanced
pursuant to § 924(e). See, e.g., United States v. Marseille, 377 F.3d 1249, 1253,
1257–58 (11th Cir. 2004) (refusing to extend Apprendi v. New Jersey, 530 U.S.
466 (2000), to overrule Almendarez-Torres).
Accordingly, we affirm.
AFFIRMED.
3

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