FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 6, 2007

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13835

Non-Argument Calendar

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D.C. Docket No. 05-00331-CR-T-26-MSS

UNITED STATES OF AMERICA,

 

Plaintiff-Appellee, 

versus

ROBERT LYNN PERRY,

 Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(September 6, 2007)

Before EDMONDSON, Chief Judge, ANDERSON and BARKETT, Circuit

Judges.

PER CURIAM:
 To convict a defendant under 18 U.S.C. § 922(g)(1), the government must prove beyond a 1

reasonable doubt, among other things, “that the firearm was in or affecting interstate commerce.”

United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000).

2

Defendant-Appellant Robert Lynn Perry appeals his conviction and 235-

month sentence for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). 

No reversible error has been shown; we affirm.

Perry first argues that the government failed to show at his trial that the

firearm in this case affected interstate commerce. Perry -- who was charged with 1

possessing the firearm in Florida -- contends that the government did not prove

that the firearm was manufactured outside of Florida. He also asserts that, even

assuming that the firearm was produced outside of Florida, the government failed

to show that the gun traveled to Florida through interstate commerce. 

We review challenges to the sufficiency of the evidence de novo, resolving

all reasonable inferences from the evidence in favor of the jury’s verdict. See

United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). We must affirm

Perry’s conviction “unless, under no reasonable construction of the evidence,

could the jury have found [him] guilty beyond a reasonable doubt.” United States

v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).
3

At Perry’s trial, Special Agent Michael Gistinger with the Bureau of

Alcohol, Tobacco, Firearms and Explosives testified that the gun involved in this

case -- a Mossberg pistol grip shotgun -- was manufactured in Connecticut, where

Mossberg is based, and traveled in interstate commerce. Agent Gistinger’s

testimony provided sufficient evidence that the gun Perry possessed was in or

affected interstate commerce. See United States v. Scott, 263 F.3d 1270, 1274

(11th Cir. 2001) (concluding that testimony by Special Agent of Bureau of

Alcohol, Tobacco and Firearms that firearm “was manufactured in California and

had moved in interstate commerce to Georgia where [defendant] was caught with

the weapon” was sufficient “to demonstrate the required nexus to interstate

commerce”); United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir. 2001)

(explaining that “by brandishing a firearm that was manufactured in California and

found in his car,” defendant’s acts satisfied the “minimal nexus to interstate

commerce” required by section 922(g)).

Perry also asserts that section 922(g) is unconstitutional as applied to him. 

Citing the Supreme Court’s decision in United States v. Lopez, 115 S.Ct. 1624

(1995), Perry contends that his conviction is unconstitutional because his firearm

possession did not bear a substantial relationship to interstate commerce.
 The ACCA provides, “In the case of a person who violates section 922(g) . . . and has three 2

previous convictions by any court . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person shall be . . . imprisoned not less

than fifteen years.” 18 U.S.C. § 924(e).

4

We review constitutional issues de novo. United States v. Wright, 392 F.3d

1269, 1280 (11th Cir. 2004). We have consistently upheld the validity of 18

U.S.C. § 922(g) against the constitutional challenge raised by Perry. See United

States v. McAllister, 77 F.3d 387, 389-90 (11th Cir. 1996) (rejecting -- in the light

of the Supreme Court’s Lopez decision -- both a facial challenge to the

constitutionality of section 922(g) and a challenge to section 922(g), as applied to

defendant, based on defendant’s claim that the government failed to show how his

gun possession affected interstate commerce); see also Wright, 392 F.3d at 1280;

United States v. Dunn, 345 F.3d 1285, 1297 (11th Cir. 2003); Scott, 263 F.3d at

1274; Dupree, 258 F.3d at 1259-60 (all upholding constitutionality of section

922(g)). Perry’s constitutional claim is without merit.

Perry next contends that the district court erred in enhancing his sentence

pursuant to the Armed Career Criminal Act (“ACCA”) based on prior convictions

that were not proven to the jury beyond a reasonable doubt, in violation of the

Sixth Amendment. We review constitutional challenges to a sentence de novo. 2

United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005).
5

Perry’s position is precluded by the Supreme Court’s decision in

Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998). In that case, the

Supreme Court explained that “the government need not allege in its indictment

and need not prove beyond a reasonable doubt that a defendant had prior

convictions for a district court to use those convictions for purposes of enhancing

a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004). 

Later decisions by the Supreme Court, including Apprendi v. New Jersey, 120

S.Ct. 2348 (2000), Blakely v. Washington, 124 S.Ct. 2531 (2004), and United

States v. Booker, 125 S.Ct. 738 (2005), have not disturbed that conclusion. 

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,

126 S.Ct. 457 (2005). “Although recent decisions, including Shepard v. United

States, 125 S.Ct. 1254 (2005), may arguably cast doubt on the future prospects of

Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has

not explicitly overruled Almendarez-Torres. As a result, we must follow

Almendarez-Torres.” Id. at 1316 n.3. Therefore, the district court did not err in

enhancing Perry’s sentence based on his prior convictions.

We affirm Perry’s conviction and sentence.

AFFIRMED.