USA v. Robert Ray Ashcroft, (11th Cir. 2006)

Docket Number: 04-00440

Parts: 05-12627

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[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 10, 2006

N o . 05-12627

THOMAS K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 04-00440-CR-T-27-MSS

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT RAY ASHCROFT,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Middle District of Florida

(F eb ru a ry 10, 2006)

B efo re BARKETT, MARCUS and WILSON, Circuit Judges.

P E R CURIAM:

R o b ert Ray Ashcroft appeals his 71-month sentence for being a felon in

p o ssessio n of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(a)(2), and for possessing an d stealing stolen firearms shipped or transported through interstate and foreign c o m m e rc e, 18 U.S.C. §§ 922(j) & 924(a)(2). Ashcroft appeals his sentence as an u n reaso n ab le one. In response, the government contends that we lack jurisdiction to review Ashcroft's challenge to his sentence because such a review is not au th o rized by 18 U.S.C. § 3742(a) . Ashcroft also appeals on the basis that 18 U .S .C . § 922(G) is an unconstitutional exercise of Congress's commerce power.

W e have previously rejected the government's position with regard to ju r is d ic tio n . See United States v. Martinez, No. 05-12706, 2006 WL 39541 (11th C ir. Jan. 09, 2006); see also United States v. Mickelson, No. 05-2324, 2006 WL 2 7 6 8 7 (8th Cir. Jan. 6, 2006) (rejecting the government's position that appellate c o u r ts lack jurisdiction to review sentences for reasonableness under § 3742(a)).

B ecau se we have jurisdiction to entertain appellate review, we now turn to th e reasonability of Ashcroft's sentence. Ashcroft argues that the 71-month s en te n c e imposed by the district court was unreasonable and higher than necessary to fulfill the purposes of sentencing. He contends that a sentence below 71 months w o u ld have been sufficient to "promote respect for the law, provide just p u n ish m en t, afford adequate deterrence, protect the public, and provide the d efen d an t with needed . . . treatment." Ashcroft argues that there were numerous m itig a tin g circumstances warranting a sentence at the low end of the guidelines th at the district court refused to consider, even though it said it would.

Following Booker, we review the final sentence imposed on a defendant for reaso n ab len ess. See Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). The f ac to r s set forth in § 3553(a) guide this review. Id. at 1246. Those factors include: ( 1 ) the nature and circumstances of the offense; (2) the history and characteristics o f the defendant; (3) the need for the sentence imposed to reflect the seriousness of th e offense, to promote respect for the law, and to provide just punishment; (4) the n eed to protect the public; and (5) the guideline range. See 18 U.S.C. § 3553(a).

Although a within-guidelines sentence is not per se reasonable, we ordinarily ex p ect such a sentence to be reasonable. See United States v. Talley, 431 F.3d 7 8 4 , 787-88 (11th Cir. 2005). This expectation is measured against the record, and A sh cro ft bears the burden of showing his sentence is unreasonable in light of the reco rd and the 3553(a) factors. Id.

We conclude that the district court imposed a reasonable sentence under B o o k er . The court supported its sentence by taking into account Ashcroft's ex ten siv e criminal history, which the court discussed at length at the sentencing h e a rin g , noting that his prior felony offenses were "almost too numerous to count." The court also considered the need to reflect the seriousness of the offense, to affo rd adequate deterrence, and to protect the public from Ashcroft. Although the c o u r t did not detail the weight that it had accorded to each sentencing factor, it was n o t required to do so. See United States v. Scott, 426 F.3d 1324, 1329-30 (11th C ir. 2005) (holding that district court need not recite a laundry list of sentencing facto rs to have adequately considered them under Booker). Ashcroft has failed to s h o w record evidence sufficient to overcome our expectation that his sentence w ith in the guideline range is unreasonable.

F in a lly , Ashcroft argues for the first time on appeal that 18 U.S.C. § 922(g), th e statute under which he was convicted, is an unconstitutional exercise of C o n g r e ss 's Commerce Power. According to Ashcroft, our decision in United States v . Maxwell, 386 F.3d 1042 (11th Cir.), cert. granted and judgment vacated, 126 S.

C t. 321, and cert. denied, 126 S. Ct. 85 (2005), undermines our previous d eterm in atio n s of 18 U.S.C. § 922(g)'s constitutionality by holding that the ag g reg ate approach to determining effects on interstate commerce cannot be ap p lied to non-economic criminal activity. As a result, Ashcroft contends, 18 U .S .C . § 922(g) is unconstitutional because it relies on the aggregate approach to reg u late a non-economic criminal activity. As Maxwell held that only regulation o f non-economic criminal activities substantially affecting interstate commerce are co n stitu tio n al, he argues that 18 U.S.C. § 922(g) is unconstitutional on those g ro u n d s as well.

Although we generally review constitutional issues de novo, it is within our d iscretio n to address a constitutional issue when it has been raised for the first time o n appeal. United States v. Wright, 392 F.3d 1269, 1280 (11th Cir. 2004), cert. d en ied , 125 S. Ct. 1751 (2005). When an issue is raised for the first time on ap p eal, we review the argument for plain error. United States v. Hall, 314 F.3d 5 6 5 , 566 (11th Cir. 2002). "Plain error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant's substantial rights in that it was p reju d icial and not harmless; and (4) that seriously affects the fairness, integrity or p u b lic reputation of the judicial proceedings." Id.

O u r since-vacated decision in Maxwell, 386 F.3d at 1059-60, held that, acco rd in g to the Supreme Court's decisions in United States v. Lopez, 514 U.S.

5 4 9 (1995), and United States v. Morrison, 529 U.S. 598 (2000), non-economic in trastate criminal conduct may not be regulated by Congress through its c o m m e rc e powers. Specifically, Maxwell invalidated a child pornography statute, 1 8 U.S.C. § 2252A(a)(5)(B), on the basis that "wholly intrastate activities that have a n only minimal or insubstantial effect on interstate commerce are not proper su b jects for federal regulation, at least not through the power bestowed by the C o m m erce Clause." Id. at 1055. A sh cro ft's reliance on our since-vacated decision in Maxwell dooms his arg u m en t that 18 U.S.C. § 922(g) is unconstitutional. Since Maxwell was vacated, th is Court has held that § 922(g) is constitutional. See Wright, 392 F.3d at 1280.

Our decision in Wright is consistent with numerous Eleventh Circuit cases affirm in g the constitutionality of § 922(g). See, e.g., United States v. Dunn, 345 F .3 d 1285, 1297 (11th Cir. 2003); United States v. Scott, 263 F.3d 1270 (11th Cir. 2 0 0 1 ), cert. denied, 534 U.S. 1166 (2002); United States v. Dupree, 258 F.3d 1258 (1 1 th Cir. 2001). Because "only the Supreme Court or this Court sitting en banc can judicially overrule a prior panel decision," we must reject Ashcroft's argument.

U n ite d States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004).

A F F IR M E D .