United States v. Alfred Shavers

24-11943 Opinion of the Court 3 containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Jones argues that the district court plainly erred by allowing a witness, Detective Austin Raimundo, to testify about testimonial hearsay statements made by a confidential in- formant.

We write only for the parties who are already familiar with the facts. For these reasons, we include only such facts as are nec- essary to understand our opinion.

I. Erlinger Error in Shavers' case

We review de novo claims of constitutional error. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). We review preserved constitutional errors under a harmless error standard un- less the error amounts to a "structural error." United States v. Mar- garita Garcia, 906 F.3d 1255, 1263 (11th Cir. 2018). Under harmless error analysis, a constitutional error must be harmless beyond a reasonable doubt. Id. When reviewing for procedural reasonable- ness, we review legal issues de novo and factual findings for clear error. United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021). "To be procedurally reasonable, a defendant's guidelines range, includ- ing the application of any enhancements, must have been correctly calculated." Id. An appellant abandons an argument if he does not plainly and prominently raise it on appeal to this Court, and passing references to an issue are insufficient to plainly and prominently raise it. Brown v. United States, 720 F.3d 1316, 1332 (11th Cir. 2013). Generally, a defendant who violates 18 U.S.C. § 922(g) is subject to a statutory maximum term of imprisonment of 15 years.

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18 U.S.C. § 924(a)(8). However, under the Armed Career Criminal Act, a defendant who violates 18 U.S.C. § 922(g) receives a manda- tory minimum 15-year sentence (and is subject to a maximum pen- alty of life imprisonment) if he "has three previous convic- tions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). The statutory maximum sentence for conspiracy to possess with intent to distribute a mixture and substance contain- ing cocaine, in violation of 21 U.S.C. § 841(b)(1)(C), is 20 years' in- carceration. 21 U.S.C. §§ 841(b)(1)(C), 846.¹

In Erlinger v. United States, 602 U.S. 821 (2024), the Supreme Court held that judicial factfinding by a preponderance of evidence that a defendant has three qualifying predicate convictions com- mitted on different occasions under the meaning of § 924(e)(1) vio- lates the Fifth Amendment's guarantee of due process of law and the Sixth Amendment's guarantee to a jury trial. Erlinger, 602 U.S. at 833-35. This is because facts that increase the statutory range of

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24-11943 Opinion of the Court 5 penalties to which a defendant is exposed must be made by a jury beyond a reasonable doubt or freely admitted in a guilty plea. Id. at 834. The Court emphasized that the different occasions inquiry can be "intensely factual" and noted that, while judges may use Shepard²documents—that is, documents like judicial records, plea agreements, and colloquies between a judge and the defendant— for the limited function of determining the fact of a prior convic- tion and the then-existing elements of that offense, judges may not use Shepard documents to determine whether the "past offenses differed enough in time, location, character, and purpose to have transpired on different occasions." Id. at 826-28, 838-41. The Court explained that "no particular lapse of time or distance between of- fenses automatically separates a single occasion from distinct ones." Id. at 841. The Court further held that, although, "in many cases the occasions inquiry will be straightforward," such as when a defendant's past offenses are "different enough and separated by enough time and space," this finding must still be made by a jury rather than a judge. Id. at 841-43 (quotation omitted). This Court recently held that Erlinger errors are not structural and are to be assessed under the harmless error standard of review. United States

v. Rivers, 134 F.4th 1292, 1305-06 (11th Cir. 2025). While the district court did commit error under Erlinger when it, and not the jury, found that Shavers' three predicates were committed on different occasions, no reasonable juror would find that Shavers did not commit the three qualifying offenses on

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6 Opinion of the Court 24-11943 different occasions. Shavers' PSR set out the following facts with respect to Shavers' prior convictions: that he had three prior con- victions for "serious drug offenses" and that he had committed those offenses on three separate occasions—i.e. July 28, 2008, July 28, 2009, and October 25, 2012. Shavers did not object to those paragraphs of the PSR, and therefore is deemed to have admitted same. United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) ("'It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes' and 'precludes the argument that there was error in them.'" (quoting United States

v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006))). Moreover, at sen- tencing—when the district court was considering the proposed ACCA enhancement to his sentence—the prosecutor said: "I know the defense is not objecting or contesting those convictions and that [they] occurr[ed] on separate dates—or separate occasions from one another." The defense counsel did not respond and al- lowed the statement to stand uncontradicted. Furthermore, Shav- ers does not dispute on appeal the dates on which he committed the three prior drug offenses or the fact that they were committed on separate occasions. Thus, the truth of the district court's find- ing—that Shavers committed three prior serious drug offenses on three separate occasions—stands as admitted by Shavers. See United States v. Penn, 63 F.4th 1305, 1318 (11th Cir. 2023) ("No rea- sonable person would say that Penn's two sales of cocaine, thirty days apart, occurred on the same occasion. . . . Whatever the simi- larities between Penn's offenses, the similarities cannot overcome the substantial gap of time between the offenses."). Because the

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24-11943 Opinion of the Court 7 district court's Erlinger error was harmless, the district court's pro- cedural error in applying a two-point increase under § 4B1.4 was also harmless because the two-point increase would properly apply if a jury had found Shavers committed three qualifying predicate offenses on different occasions. See § 4B1.4(a); 18 U.S.C. § 924(e)(1). Thus, we affirm Shavers' sentence.

II. Commerce Clause Challenge in Shavers' case

We are bound to follow our prior binding precedent unless the decision has been overruled by a decision of this Court sitting en banc or the United States Supreme Court. United States v. White,

837 F.3d 1225, 1228 (11th Cir. 2016). Title 18 of the United States Code, section 922(g)(1), prohib- its anyone who has been convicted of a crime punishable by more than one year of imprisonment from possessing a firearm or am- munition. 18 U.S.C. § 922(g)(1).

The Commerce Clause reads: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. We have held that § 922(g) is constitutional under the Commerce Clause, both facially and as applied to defendants who possess firearms that were manufactured in a different state than the state where the offense took place. United States v. Scott,

263 F.3d 1270, 1273-74 (11th Cir. 2001). Here, this Court's precedent forecloses both Shavers's facial and as applied challenges to the Commerce Clause. Scott, 263 F.3d at 1273 74. Shavers acknowledges that the firearm he possessed

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8 Opinion of the Court 24-11943 was manufactured outside the state of Florida, and therefore, trav- eled in interstate commerce. Therefore, § 922(g)(1) is constitu- tional under the Commerce Clause, both facially and as applied to Shavers.

III. Second Amendment Challenge in Shavers' case

The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the peo- ple to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), we relied on District of Columbia v. Heller, 554 U.S. 570 (2008), to hold that § 922(g)(1) did not violate the Second Amendment. Rozier, 598 F.3d at 771. We stated that Heller suggested that "stat- utes disqualifying felons from possessing a firearm under any and all circumstances do not offend the Second Amendment." Id. In New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), the Supreme Court rejected means-end scrutiny, explaining that courts must ask (1) whether the firearm regulation at issue governs conduct within the plain text of the Second Amendment, and (2) whether the government could "affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Bruen, 597

U.S. 1, 17, 19 (2022).

In United States v. Rahimi, 602 U.S. 680 (2024), the Supreme Court upheld § 922(g)(8), noting that courts have "misunderstood"

the Bruen methodology and stating that the Second Amendment permitted not just regulations identical to those in existence in

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24-11943 Opinion of the Court 9 1791, but also regulations that are "consistent with the principles that underpin our regulatory tradition" and are "relevantly similar to laws that our tradition is understood to permit." Rahimi, 602 U.S. at 691-93 (quotation omitted).

In United States v. Dubois, this Court recently held that Bruen and Rahimi did not abrogate our precedent holding that § 922(g)(1) is constitutional under the Second Amendment. United States v. Dubois, 2025 WL 1553843 (11th Cir. June 2, 2025). There, we ob- served that in our precedent Rozier, we interpreted Heller as limit- ing the right to bear arms to "'law-abiding and qualified individuals' and as clearly excluding felons from those categories by referring to felon-in-possession bans as presumptively lawful." Id. at *5. We noted that the Court in Bruen repeatedly stated that its decision was

"faithful" to Heller, and that the Court in Rahimi "reiterate[d] Hel- ler's conclusion that prohibitions 'on the possession of firearms by

"felons and the mentally ill . . ." are "presumptively lawful."'" Id. (quoting Rahimi, 144 S. Ct. at 1902). We noted that Rahimi also clar- ified that it did not suggest the Second Amendment prohibited the barring of gun possession by categories of persons the legislature deemed dangerous. Id. Finally, we rejected Dubois's argument that Rozier was undermined by Rahimi's rejection of bars on own- ership by those deemed not responsible; Rozier never stated that qualification for gun possession was based on whether a person was responsible. Id.

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10 Opinion of the Court 24-11943 Because Dubois affirmed that Rahimi and Bruen did not abro- gate our precedent holding that §922(g)(1) is constitutional, we re- ject Shavers' arguments on this issue.

III. Confrontation Clause Challenge in Jones' case

If a defendant did not lodge a timely Confrontation Clause objection in the district court, we review for plain error only. United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006). "Un- der plain error review, an appellate court may not correct an error not raised at trial unless there is (1) error, (2), that is plain, and (3) that affects substantial rights." Id. (quotation omitted). Even where all three conditions are met, we have discretion to notice a forfeited error only if "the error seriously affects the fairness, integ- rity, or public reputation of judicial proceedings." Id. To establish that an error affected his substantial rights, a defendant "must show there is a reasonable probability that, but for the error, a different outcome would have occurred." Margarita Garcia, 906 F.3d at 1267. A hearsay objection to testimony at trial, standing alone, does not preserve for appeal a constitutional challenge under the Confrontation Clause. United States v. Chau, 426 F.3d 1318, 1321- 22 (11th Cir. 2005).

The Confrontation Clause provides, "[i]n all criminal prose- cutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confron- tation Clause bars the use of statements only if the statements are

"testimonial" in nature. See United States v. Cooper, 926 F.3d 718, 730 (11th Cir. 2019). Statements made to police officers are

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24-11943 Opinion of the Court 11 generally testimonial if the officer's primary purpose is investiga- tive. Id. at 731. But testimonial statements are only prohibited by the Confrontation Clause if they constitute impermissible hear- say—testimonial statements may be admissible if they are not used to prove the truth of the matter asserted. United States v. Kent, 93 F.4th 1213, 1218 (11th Cir. 2024). Thus, a testimonial statement made to law enforcement by an out-of-court witness may be ad- missible if the statement (1) is offered for a non hearsay purpose,

(2) the non hearsay purpose is relevant, and (3) the probative value of the statement is not substantially outweighed by the risk of un- fair prejudice. Id.

Here, as an initial matter, Jones's arguments do not identify specific statements that violated the Confrontation Clause, provid- ing only a general summary of the content of Detective Raimundo's testimony in the fact section of his brief, and then ar- guing that Detective Raimundo testified as to "out of court testi- monial statements" by Wood. And, as the government points out, some of the testimony regarding Wood's statements may have been offered for purposes other than to prove the truth of the mat- ter asserted, such as to establish why the government began inves- tigating Saleem and why Detective Raimundo gave Wood extra money during the June drug buy.

Nevertheless, it is unnecessary for this Court to determine which statements were or were not hearsay, because Jones has not shown that his substantial rights were affected, even if all of Detec- tive Raimundo's testimony regarding Wood's statements violated

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12 Opinion of the Court 24-11943 the Confrontation Clause. The government introduced recorded phone calls in which Wood arranged to buy methamphetamine from Saleem, photographs of Saleem delivering the methamphet- amine to Jones, photographs of Wood meeting with Jones to buy the methamphetamine, and video and audio recordings of the drug deals between Jones and Wood. Saleem confirmed that he agreed to sell methamphetamine to Wood, that he delivered the metham- phetamine to Jones, and that Jones sold the methamphetamine to Wood. Detective Raimundo testified in detail regarding the con- trolled buys, including that he provided Wood with money, watched him meet with Jones, and that Wood returned each time with methamphetamine. Detective Raimundo, Special Agent Welch, Detective Blissett, and Detective Smith all testified that they observed various stages of the drug deals. Chemist Stephanie Armas confirmed that what Jones sold to Wood was, in fact, meth- amphetamine. Thus, even without any of Detective Raimundo's testimony regarding what Wood told him about Jones, the govern- ment introduced voluminous evidence establishing that Jones sold methamphetamine to Wood on multiple occasions. Therefore, Jones has not shown a reasonable probability that excluding the challenged statements would have resulted in a different outcome at trial. See Margarita Garcia, 906 F.3d at 1267. Thus, we reject this challenge to Jones' conviction.

For the foregoing reasons, we affirm Shavers' convictions and sentence and Jones' conviction.

AFFIRMED.

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