USA v. Basilio Bron, Jr.

Filing

Opinion issued by court as to Appellant Basilio Amaury Bron, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11929

Date Filed: 09/18/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11929
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cr-00022-SPC-MRM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BASILIO AMAURY BRON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 18, 2017)
Before HULL, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
After a bench trial, Basilio Bron, Jr., appeals his conviction and 87-month
sentence of imprisonment for possessing a firearm as a convicted felon, in

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Date Filed: 09/18/2017

violation of 18 U.S.C. § 922(g)(1).

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On appeal, Bron challenges the

constitutionality of his § 922(g) conviction and the sufficiency of the evidence to
support it. Bron also argues that the district court erred in concluding that his
Florida felony battery conviction was a crime of violence for purposes of the
Sentencing Guidelines. After careful review, we affirm.
I.
Bron first argues that the district court erred in refusing to dismiss the
indictment on the ground that 18 U.S.C. § 922(g)(1) exceeds Congress’s power
under the Commerce Clause of the United States Constitution. And based on his
interpretation of what § 922(g)(1) requires, he maintains that the government failed
to produce sufficient evidence to support his conviction. Bron’s arguments are
foreclosed by circuit precedent.
Bron appears to concede that § 922(g)(1) is facially constitutional. Indeed,
“[w]e have repeatedly held that Section 922(g)(1) is not a facially unconstitutional
exercise of Congress’s power under the Commerce Clause because it contains an
express jurisdictional requirement.” United States v. Jordan, 635 F.3d 1181, 1189
(11th Cir. 2011); see also United States v. Scott, 263 F.3d 1270, 1273–74 (11th
Cir. 2001); United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996).
Specifically, § 922(g)(1) makes it unlawful for a convicted felon to, among other

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things, “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C.
§ 922(g)(1) (emphasis added).
Instead, Bron maintains that § 922(g)(1), even if facially constitutional,
cannot constitutionally be applied to purely intrastate possession of a firearm
without a showing of a substantial effect on interstate commerce. But we rejected
this same argument in McAllister following the Supreme Court’s decision in
United States v. Lopez, 514 U.S. 549 (1995). Specifically, we disagreed with a
defendant’s contention that Lopez rendered § 922(g)(1) “unconstitutional as applied
to him because the government did not demonstrate how his purely intrastate
possession affected interstate commerce.” See McAllister, 77 F.3d at 389–90.
We explained in McAllister that § 922(g) was “an attempt to regulate guns
that have a connection to interstate commerce,” in contrast to the statute at issue in
Lopez, which was “not an essential part of a larger regulation of economic activity,
in which the regulatory scheme could be undercut unless the intrastate activity
were regulated.” Id. at 390 (quoting Lopez, 514 U.S. at 561). As a result, § 922(g)
could be upheld, as the statute in Lopez could not, under case law upholding the
regulation of activities connected to interstate commerce that, in the aggregate,
substantially affect interstate commerce: “When viewed in the aggregate, a law
prohibiting the possession of a gun by a felon stems the flow of guns in interstate
commerce to criminals.” Id. And we found no basis to depart from the “minimal
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nexus” requirement established by the Court in Scarborough v. United States, 431
U.S. 563, 575 (1977), for the predecessor statute to § 922(g). Id.
In short, McAllister held that a defendant’s § 922(g)(1) conviction is
constitutionally valid so long as the firearm possessed has a “minimal nexus” to
interstate commerce.

Id.

That interstate nexus requirement is satisfied by a

showing that the gun previously “travel[]ed in interstate commerce.” Id. No
individualized showing of a “substantial” effect on interstate commerce is
necessary. See id.
No intervening Supreme Court decision has overruled or abrogated the
holding of McAllister. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008) (stating that the holding of a prior panel is binding “unless and until it is
overruled or undermined to the point of abrogation by the Supreme Court or this
court sitting en banc”). Bron cites the Supreme Court’s decision in United States
v. Morrison, 529 U.S. 598 (2000), but we have rejected the argument that
Morrison abrogated McAllister. Scott, 263 F.3d at 1273; United States v. Dupree,
258 F.3d 1258, 1259–60 (11th Cir. 2001). In Scott, we “reaffirm[ed] McAllister’s
holding that as long as the weapon in question has a ‘minimal nexus’ to interstate
commerce, § 922(g)(1) is constitutional.” 263 F.3d at 1274; see also Jordan, 635
F.3d at 1189–90 (noting, in 2011, that McAllister and Scott “have not been
overruled by the en banc Court or by the Supreme Court”).
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Bron also relies on the Supreme Court’s decision in National Federation of
Independent Business v. Sebelius, 567 U.S. 519 (2012), but Sebelius did not
overrule or abrogate the holdings of McAllister and Scott. Sebelius involved, in
relevant part, a challenge to the “individual mandate” portion of the Patient
Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010).
See Sebelius, 567 U.S. at 547–58. Sebelius did not address the constitutionality of
§ 922(g), nor did it express an intention to overrule the precedents on which our
cases relied in finding § 922(g) constitutional as applied to conduct like Bron’s.
As a result, Sebelius is not “clearly on point” for purposes of the prior-precedent
rule. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).
And we have since confirmed, in the context of a similar challenge to the
application of § 18 U.S.C. § 2251(a) to purely intrastate production of child
pornography, that “the Supreme Court in Sebelius said nothing to abrogate its
holding in [Gonzales v. Raich, 545 U.S. 1 (2006)] to the effect that Congress has
the power, as part of a comprehensive regulation of economic activity, to regulate
purely local activities that are part of an economic ‘class of activities’ that have a
substantial effect on interstate commerce.” United States v. Parton, 749 F.3d
1329, 1331 (11th Cir. 2014).

As we have explained, McAllister upheld the

application of § 922(g)(1) to purely intrastate possession of a firearm under this
same rationale. McAllister, 77 F.3d at 390 (“When viewed in the aggregate, a law
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prohibiting the possession of a gun by a felon stems the flow of guns in interstate
commerce to criminals.”); see Raich, 545 U.S. at 26 (“Prohibiting the intrastate
possession or manufacture of an article of commerce is a rational (and commonly
utilized) means of regulating commerce in that product.”). Accordingly, Sebelius
did not overrule or abrogate McAllister or Scott.
In sum, Bron’s appeal is governed by the well-established rules set forth in
McAllister, Scott, and Jordan.

As a result, his § 922(g)(1) conviction is

constitutional and supported by sufficient evidence because the government proved
that he was a convicted felon who possessed a firearm that had been manufactured
outside of the state.

That the firearm traveled in interstate commerce was

sufficient to satisfy the required “minimal nexus” to interstate commerce.
Accordingly, we affirm his conviction.
II.
Bron argues that the district court erred in classifying his prior conviction for
felony battery under Fla. Stat. § 784.041 as a “crime of violence” for purposes of
§ 2K2.1(a)(2) of the Sentencing Guidelines. We review de novo whether a prior
conviction qualifies as a conviction for a crime of violence. United States v.
Estrella, 758 F.3d 1239, 1244 (11th Cir. 2014).
Section 2K2.1 sets out several alternative base offense levels for offenses
involving unlawful possession of a firearm. Under § 2K2.1(a)(2), an enhanced
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base offense level of 24 applies “if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). A “crime of
violence” for purposes of this section meant, at the time of Bron’s sentencing, a
felony offense that either (1) “has as an element the use, attempted use, or
threatened use of physical force against the person of another means,” or (2) “is
burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.”

U.S.S.G. § 4B1.2(a) (2015); see U.S.S.G. § 2K2.1 cmt. n.1

(incorporating § 4B1.2(a)’s definition of “crime of violence”) (emphasis added).
The final clause of § 4B1.2(a)(2), italicized above, is often referred to as the
“residual clause” definition. See United States v. Matchett, 802 F.3d 1185, 1193–
94 (11th Cir. 2015). We refer to the definition in § 4B1.2(a)(1) as the “elements
clause.”
Bron offers three reasons why, in his view, the district court erred in
applying § 2K2.1(a)(2). None is persuasive.
First, Bron argues that the crime-of-violence determination should have been
based on the Florida aggravated-battery statute, Fla. Stat. § 784.045, rather than the
felony-battery statute, Fla. Stat. § 784.041. Bron explains that he was originally
arrested for and charged with aggravated battery, but he subsequently pled nolo
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contendere to a reduced charge of felony battery. Despite his plea to that offense,
he maintains that the facts of his conduct do not support his conviction.1
The district court properly based the crime-of-violence determination on the
statute of conviction, felony battery, not the statute to which Bron’s criminal
conduct arguably best conforms. To determine whether a prior state conviction is
a qualifying offense for sentencing-enhancement purposes, we typically “look no
further than the statute and judgment of conviction.” United States v. Palomino
Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). In some circumstances we may
look beyond those sources to a limited category of state documents, such as
charging documents or a written plea agreement, but the inquiry is still tied to the
statute of conviction. See id.
There is no dispute that Bron was convicted of felony battery under Fla. Stat.
§ 784.041.

Accordingly, that is the statute that controls our analysis.

Bron

provides no support for his assertion that we can look at his underlying conduct
and decide that he committed an offense different from the one of which he was
convicted. See Estella, 758 F.3d at 1245 (“Whether, in fact, the person suffering
under this particular conviction actually used, attempted to use, or threatened to
use physical force against a person is quite irrelevant.”) (internal quotation marks
1

In specific, Bron maintains that he was arrested for and charged with a variant of
aggravated battery that does not require the use of physical force: simple battery on a pregnant
woman. See United States v. Braun, 801 F.3d 1301, 1305 (11th Cir. 2015). According to the
presentence investigation report, Bron poked his pregnant sister in the forehead and chest and
“slapped her on the side of her stomach.” There “were no noticeable injuries.”
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omitted).

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And he may not “collaterally attack in the sentencing proceeding

convictions being used to enhance his sentence.” United States v. Jackson, 57 F.3d
1012, 1018 (11th Cir. 1995). Because the district court properly based the crimeof-violence determination on Florida felony battery, we need not consider the
second issue Bron raises—whether the version of aggravated battery under which
he claims to have been arrested and charged is a crime of violence.
We therefore address Bron’s contention that Florida felony battery is not
categorically a crime of violence for purposes of the Sentencing Guidelines.2
Sitting en banc, we recently held that Florida felony battery is categorically a
“crime of violence” under the elements clause definition of that term in the
Sentencing Guidelines. United States v. Vail-Bailon, ___ F.3d ___, 2017 WL
3667647, *11 (11th Cir. Aug. 25, 2017). As a result, Bron’s conviction for Florida
felony battery now clearly qualifies as a crime of violence under the elements
clause of § 4B1.2(a). Accordingly, the district court properly used this conviction
as a predicate to apply the enhanced base offense level under § 2K2.1(a)(2). And

2

Florida’s felony battery statute provides,

(1) A person commits felony battery if he or she:
(a) Actually and intentionally touches or strikes another person against the will
of the other; and
(b) Causes great bodily harm, permanent disability, or permanent disfigurement.
Fla. Stat. § 784.041(1).
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because the conviction is a crime of violence under the elements clause, we need
not consider whether it qualifies under the residual clause of § 4B1.2(a) also. 3
For these reasons, we AFFIRM Bron’s conviction and sentence.

3

Bron argues that the residual clause is unconstitutionally vague, but after he filed his
brief to this Court, the Supreme Court issued its decision in Beckles v. United States, 137 S. Ct.
886 (2017), which held that the residual clause in the career-offender guideline, U.S.S.G.
§ 4B1.2(a), is not void for vagueness.
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