USA v. Larry Fillingim

Filing

Opinion issued by court as to Appellant Larry Kilby Fillingim. 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: 16-12782

Date Filed: 05/11/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12782
Non-Argument Calendar
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D.C. Docket No. 3:15-cr-00057-RV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY KILBY FILLINGIM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________

(May 11, 2017)

Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Larry Fillingim, proceeding pro se, appeals the district court’s denial of his
motion to dismiss the superseding indictment charging him, inter alia, with

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possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He argues
that the district court should have dismissed the indictment because his prior
Georgia felony convictions for aggravated stalking, false imprisonment, and
aggravated assault were void for lack of jurisdiction. Because Mr. Fillingim may
not collaterally attack his underlying state felony convictions in his federal
criminal proceedings, we affirm the district court’s denial of the motion to dismiss.
I.

FACTUAL BACKGROUND

Mr. Fillingim was previously convicted in Georgia for aggravated stalking,
aggravated assault, and false imprisonment. For each crime, Mr. Fillingim was
subject to a term of imprisonment exceeding one year. Several years after his
convictions, Mr. Fillingim attempted to purchase a pistol from a federally licensed
firearms dealer. Before the dealer could sell Mr. Fillingim the pistol, Mr. Fillingim
had to provide certain information, including whether he had a prior felony
conviction. Mr. Fillingim stated that he had no prior felony conviction. After a
background check revealed his prior convictions, Mr. Fillingim was unable to
purchase the pistol. Subsequently, federal agents met with Mr. Fillingim to discuss
his attempted purchase of the pistol. At this meeting, Mr. Fillingim admitted that
he had attempted to purchase the pistol and that he owned other firearms as well as
ammunition.

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Mr. Fillingim was charged in a superseding indictment with two counts of
being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1) and one count of knowingly making a false statement to a federally
licensed firearm dealer in connection with the acquisition of a firearm in violation
of 18 U.S.C. § 922(a)(6). Prior to trial, Mr. Fillingim filed a pro se motion to
dismiss the indictment on the basis that his convictions for the Georgia felonies
were void because the state court lacked jurisdiction. He argued that the state court
lacked jurisdiction because, among other things, the judges who presided over his
state criminal proceedings were corrupt; while awaiting trial, he was subject to
unconstitutional conditions of confinement and abuse; he was forced to take
medication that rendered him incompetent to stand trial; and he was denied
effective assistance of counsel. He also asserted that state court judges harassed
him after his convictions through various abuses of the legal process and that law
enforcement officers shot at him in retaliation for pursuing litigation. The
government opposed the motion, arguing that the indictment was legally sufficient
and that Mr. Fillingim could not raise a collateral attack on the validity of his prior
felony convictions in his felon-in-possession proceeding. The district court agreed
with the government and denied the motion to dismiss.

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After the denial of his motion to dismiss, Mr. Fillingim pled guilty to the
three counts in the superseding indictment but reserved his right to appeal the
denial of the motion. This is his appeal.
II.

STANDARD OF REVIEW

We review the denial of a motion to dismiss the indictment for abuse of
discretion. United States v. York, 428 F.3d 1325, 1331 n.8 (11th Cir. 2005). The
question of what constitutes a conviction of a crime punishable by imprisonment
for a term exceeding on year under 18 U.S.C. § 922(g)(1) is a question of statutory
interpretation that we review de novo. See United States v. McIlwain, 772 F.3d
688, 693 (11th Cir. 2014).
III.

LEGAL ANALYSIS

Federal law generally bars certain categories of persons, whom Congress
considered dangerous, from possessing firearms. See 18 U.S.C. § 922(g);
McIlwain, 772 F.3d at 693. Under § 922(g)(1), it is unlawful for a person “who
has been convicted in any court of [] a crime punishable by imprisonment for a
term exceeding one year” to “possess[,] in or affecting commerce, any firearm or
ammunition.” 18 U.S.C. § 922(g)(1). Mr. Fillingim argues although he had
previous convictions for crimes punishable by a term of imprisonment exceeding
one year, the district court should have dismissed the indictment on the basis that
these convictions were void. Even assuming Mr. Fillingim could raise such a
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challenge in a motion to dismiss the indictment, the district court did not err
because at the time of Mr. Fillingim’s possession of firearms and attempted
purchase of the pistol, he had prior felony convictions.
The Supreme Court has held that in a federal prosecution for being a felon in
possession of a firearm a defendant may not collaterally attack his prior conviction
in order to negate the government’s evidence that he had a felony conviction. See
Lewis v. United States, 445 U.S. 55, 67 (1980).1 In Lewis, the Supreme Court
recognized that such collateral attacks were barred because Congress had intended
federal law to prevent all convicted felons from possessing firearms, even if the
underlying “felony conviction ultimately might turn out to be invalid for any
reason.” Id. at 62. The Court explained that “Congress clearly intended that the
defendant clear his [felon] status before obtaining a firearm.” Id. at 64. That is, a
convicted felon may possess a firearm only if his conviction had been vacated or
the firearm restriction removed, such as through “a qualifying pardon or a consent
from the Secretary of the Treasury.” Id. at 60-61. Here, Mr. Fillingim’s prior
convictions had not been vacated and his firearm restrictions had not been removed
at the time of his possession of the firearms and attempted purchase of the pistol.
Accordingly, he had a prior conviction for purposes of § 922 and could not
collaterally attack his state court convictions in his federal criminal proceedings.
1

In Lewis, the defendant was convicted of violating 18 U.S.C. § 1202(a)(1), a
predecessor to the current § 922(g)(1).
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Mr. Fillingim acknowledges that Lewis generally bars a collateral attack on a
prior conviction but argues that we should recognize an exception here because the
errors in his state court criminal proceedings were so severe that they deprived the
state court of jurisdiction. But we rejected a similar argument in United States v.
DuBose, 598 F.3d 726 (11th Cir. 2010). In DuBose, the defendant, who was
charged with possessing a firearm while subject to a protective order, moved for a
judgment of acquittal on the ground that the underlying protective order had
constitutional infirmities, which deprived the issuing court of jurisdiction and
rendered the order void.2 Id. at 732. We were unpersuaded because the defendant
was required to challenge successfully the court’s subject matter jurisdiction before
he could possess either firearms or ammunition. Id. at 733. Likewise, because Mr.
Fillingim had prior felony convictions at the time he possessed a firearm or
ammunition, a subsequent collateral attack on his state court convictions as void
for lack of subject matter jurisdiction would not affect his federal felon-inpossession-of-a-firearm charge.
Mr. Fillingim also argues that we should allow him to raise a collateral
attack on his prior convictions because the Supreme Court recognized in District of
Columbia v. Heller, 554 U.S. 570 (2008), that he has a constitutional right under
2

In DuBose, the defendant was charged with possession of a firearm while subject to a
protective order in violation of § 922(g)(8). But we recognized that § 922(g)(1), prohibiting
felons from being in possession of a firearm, was an analogous statute. See DuBose, 598 F.3d at
733.
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the Second Amendment to possess a handgun in his home. Although the Supreme
Court held in Heller that a District of Columbia law banning the possession of
handguns was unconstitutional, the Supreme Court explained that its decision was
not intended “to cast doubt on longstanding prohibitions on the possession of
firearms by felons.” Id. at 626; see McIlwain, 772 F.3d at 698 (rejecting argument
that Heller permitted a defendant to raise a collateral attack to challenge his
indictment for violating § 922(g)). Accordingly, Heller does not entitle Mr.
Fillingim to raise a collateral attack on his prior felony convictions. 3
IV.

CONCLUSION

For the reasons set forth above, the indictment at issue was sufficient on its
face; thus, we hold that the district court did not abuse its discretion in denying Mr.
Fillingim’s motion to dismiss the indictment. His conviction is
AFFIRMED.

3

On appeal, Mr. Fillingim also argues that he is entitled to relief under 42 U.S.C. § 1983
for violations of his constitutional rights, including his exposure to malicious and sadistic
conditions while awaiting criminal trial in state court. Mr. Fillingim must raise any civil claims
under § 1983 in a separate civil suit. We express no view on the merits of any such claims.
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