United States v. Washington ( 2023 )

Case: 22-10574 Document: 00516859719 Page: 1 Date Filed: 08/16/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10574
Summary Calendar FILED
____________ August 16, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Lakeith Lynn Washington,
Defendant—Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-184-1
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Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
A superseding indictment charged Lakeith Lynn Washington with
possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (“Count 1”), and possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) (“Count 2").
Washington pleaded guilty to both counts without a plea agreement. The
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10574 Document: 00516859719 Page: 2 Date Filed: 08/16/2023
No. 22-10574
Presentence Report (“PSR”) applied the Armed Career Criminal Act’s
(“ACCA”) sentence enhancement to Count 1 due to Washington’s three
prior state-law convictions for burglaries (committed months or years apart).
As a result, the statutory minimum sentence was fifteen years of
imprisonment. See 18 U.S.C. § 924(e). The district court adopted the PSR
and sentenced Washington to fifteen years for Count 1 and a concurrent term
of 30 months for Count 2. On appeal, Washington challenges the
constitutionality of § 922(g)(1) and the application of the ACCA sentence
enhancement. We address each argument in turn. 1
We begin with Washington’s contention that § 922(g)(1) violates the
Commerce Clause and the Second Amendment. Because he failed to raise
these constitutional arguments in the district court, we review for plain error.
See United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014). Accordingly,
Washington must demonstrate that the district court’s application of this
statute contained an (1) error, (2) that was clear or obvious, and (3) affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, we have discretion to correct that error if it “seriously affects
the fairness, integrity or public reputation of judicial proceedings.” Id.(quotation and alteration omitted). Washington has failed to make this
showing as to either of his constitutional challenges.
First, Washington urges that in enacting § 922(g)(1), Congress
exceeded its authority under the Commerce Clause. However, he
concedes—and we agree—that this argument is foreclosed by Fifth Circuit
precedent. See United States v. Alcantar, 733 F.3d 143, 145–46 (5th Cir. 2013).
Second, Washington contends that while this court has previously rejected
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1
Washington does not contest the guilty plea or sentence as to Count 2, so we do
not address it.
2
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No. 22-10574
Second Amendment challenges to § 922(g)(1), see, e.g., United States v.
Darrington, 351 F.3d 632, 633–34 (5th Cir. 2003), an intervening Supreme
Court decision draws this precedent into question, see N.Y. State Rifle &
Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125–30 (2022). To be sure, we recently
relied on Bruen in invalidating a similar provision pertaining to persons
subject to domestic violence restraining orders. See United States v. Rahimi,
61 F.4th 443, 452, 461 (5th Cir.), cert. granted, No. 22-915, 2023 WL 4278450(June 30, 2023) (addressing 18 U.S.C. § 922(g)(8)). However, we have yet
to address the constitutionality of § 922(g)(1)—and, in fact, Rahimi suggests
that Bruen’s logic may not extend to this provision. See id. at 451–52 (noting
that Bruen refers to “law-abiding” citizens in discussing the Second
Amendment’s scope). Accordingly, given this lack of binding authority, we
conclude that Washington did not establish plain error. See United States v.
McGavitt, 28 F.4th 571, 577 (5th Cir.), cert. denied, 143 S. Ct. 282 (2022).
Finally, Washington argues that the district court’s application of the
ACCA mandatory minimum sentence violated his Fifth and Sixth
Amendment rights. Per Washington, whether his three convictions occurred
on “occasions different from one another,” see 18 U.S.C. § 924(e)(1),
constituted a non-elemental fact that must have been alleged in the
indictment or found by a jury. See Wooden v. United States, 142 S. Ct. 1063,
1070–71 (2022) (addressing whether ten burglaries on the same day in the
same facility constituted “different occasions” under § 924(e)(1)). The
Government agrees with this point in its brief, but it argues that any error was
harmless. However, we need not address the harmless error argument,
because we recently affirmed that Wooden does not invalidate our precedent
authorizing the sentencing judge to conduct § 924(e)(1)’s “different
3
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occasions” inquiry. See United States v. Valencia, 66 F.4th 1032, 1032–33 (5th
Cir. 2023) (per curiam). Accordingly, this argument also fails. 2
AFFIRMED.
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2
Washington also concedes that this court’s precedent forecloses his argument
that Texas burglary is not a violent felony for purposes of the ACCA enhancement. See
United States v. Herrold, 941 F.3d 173, 175–77, 182 (5th Cir. 2019) (en banc). Thus, we do
not address it.
4