[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-12283

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JAMES JOSEPH BRYANT, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:18-cr-00188-PGB-TBS-1

____________________

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2 Opinion of the Court 19-12283

Before WILSON, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

James Joseph Bryant appeals his sentence of 120-months’ imprisonment and 5 years’ supervised release for firearm possession 

as a felon, arguing that: (1) the district court lacked jurisdiction because the indictment failed to allege that Bryant knew he was a 

felon; (2) the district court erred in accepting Bryant’s plea because 

he was not informed that the government had to prove he was a 

felon; (3) the felon-in-possession statute exceeds congressional 

power under the Commerce Clause; (4) the district court erred in 

sentencing him under the Armed Career Criminal Act (ACCA) because his prior Florida conviction for aggravated assault does not 

qualify; (5) the district court erred in sentencing him under ACCA 

because the fact that his prior convictions were separate occasions 

was not an element of the offenses, proven to a jury beyond a reasonable doubt, or admitted by Bryant; and (6) the district court 

erred in sentencing Bryant above 18 U.S.C. § 924(a)(2)’s maximum 

penalty and the ACCA requirements were not charged in an indictment and proven to a jury beyond a reasonable doubt. After careful review, we affirm.

I. Background

In August 2018, Bryant was charged by indictment with possessing a firearm as a convicted felon. The indictment charged that 

Bryant:

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having been previously convicted in any court of a 

crime punishable by imprisonment for a term exceeding one year, including [four prior convictions], did 

knowingly possess, in and affecting interstate commerce, a firearm and ammunition, that is, a 9 mm 

Jimenez Arms, model JA Nine, pistol and Winchester 

ammunition. In violation of 18 U.S.C. §§ 922(g)(1) 

and 924(e).

The presentence investigation report (PSR) recommended 

that Bryant be sentenced pursuant to ACCA due to the four prior 

qualifying convictions: aggravated battery, aggravated assault, and 

two counts of possession of cocaine base with intent to distribute 

on different occasions, January 8, 1999, and January 15, 1999, respectively, that were resolved in the same federal case. Bryant 

never objected to the PSR’s statement of the offense dates or the 

recommendation that the district court sentence him under ACCA 

based on those crimes. Ultimately, Bryant entered a guilty plea 

pursuant to a plea agreement in September 2018. The district court 

found the sentencing guidelines range to be 180 months, in part 

because of ACCA’s application. While deciding ACCA applied, the 

district court ultimately imposed a prison term of 10 years (120 

months) and a supervised release term of 5 years on May 29, 2019. 

II. The District Court Did Not Lack Jurisdiction

“We review questions of subject matter jurisdiction de 

novo.” United States v. Morales, 987 F.3d 966, 978 (11th Cir. 2021). 

However, “[u]nder the prior precedent rule, we are bound to follow a prior binding precedent ‘unless and until it is overruled by 

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this court en banc or by the Supreme Court.’” United States v. VegaCastillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (quoting United States 

v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). A case is overruled 

only when there is actual conflict, not when there is merely inconsistent reasoning. Id. at 1237.

Someone previously convicted of a felony may not possess 

a firearm “in or affecting commerce.” 18 U.S.C. § 922(g). At the 

time Bryant possessed the firearm, 18 U.S.C. § 924(a) provided that 

“[w]hoever knowingly violates subsection . . . (g) . . . of section 922 

shall be fined as provided in this title, imprisoned not more than 10 

years, or both.” 18 U.S.C. § 924(a)(2) (2006) (amended 2018 and 

2022). We have applied the Supreme Court holding from Rehaifv. 

United States1 to say that “18 U.S.C. § 922(g), when read in conjunction with § 924(a)(2), requires not only that the defendant know 

that he possesses a firearm, but also . . . know that he is a felon.” 

United States v. Bates, 960 F.3d 1278, 1295 (11th Cir. 2020).

Generally, “[t]he standard for whether an indictment sufficiently alleges a crime is not demanding. An indictment tracking 

the statutory language and stating approximately the time and 

place of an alleged crime is sufficient.” United States v. Moore, 954 

F.3d 1322, 1332 (11th Cir. 2020). An omission of an element of a 

crime “does not strip the district court of jurisdiction.” Id. at 1334. 

Specific to this statute, omission of the knowledge-of-felon-status 

element is not jurisdictional. Id. at 1336 (noting that Rehaif reached 

1 139 S. Ct. 2191 (2019).

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the merits and did not dismiss for lack of jurisdiction). We have

further held that 18 U.S.C. § 924(a) need not be charged in addition 

to § 922(g), because § 922(g) is already a complete criminal prohibition. Id. at 1337.

Here, prior precedent establishes that failure to allege 

knowledge of felony status or charge a violation of § 924(a) does 

not compromise the subject matter jurisdiction of the district 

court. While this omission may render an indictment insufficient, 

as held in Moore, this fact alone will not invalidate jurisdiction. Id. 

at 1334. Therefore, Bryant’s claim to the contrary cannot stand, 

and jurisdiction was not implicated in this case. 

III. The District Court Did Not Plainly Err in Accepting 

Bryant’s Guilty Plea

We “review[] the issue of a Fed. R. Crim. P. Rule 11 violation for plain error when it was not raised before the district court.” 

United States v. James, 210 F.3d 1342, 1343 (11th Cir. 2000). Plain 

error places the burden on the defendant to establish (1) an error;

(2) that is plain; (3) that has affected the defendant’s substantial 

rights; and (4) the error seriously affects “the fairness, integrity or 

public reputation of judicial proceedings.” Greer v. United States, 

141 S. Ct. 2090, 2096–97 (2021). For an error to be plain, the issue 

must be specifically resolved by the operative text or by precedent 

from us or the Supreme Court. United States v. Lejarde-Rada, 319 

F.3d 1288, 1291 (11th Cir. 2003).

When a defendant seeks to invalidate a guilty plea on Rule 

11 grounds, under plain error review, the defendant must 

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demonstrate his substantial rights were affected by “show[ing] a 

reasonable probability that, but for the error, he would not have 

entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 

83 (2004). The Supreme Court has suggested that at least a certain 

class of constitutional error relieves the defendant of this obligation. Id. at 84 n.10 (noting that “when the record of a criminal conviction obtained by guilty plea contains no evidence that a defendant knew of the rights he was putatively waiving, the conviction 

must be reversed” (citation omitted)). However, neither we nor 

the Supreme Court have made a distinction between the Rule 11 

and due process analyses in cases analyzing Rehaif errors; both have 

required the defendant to show a reasonable probability that, butfor the error, they would not have pled guilty. Greer, 141 S. Ct. at

2096–98; Bates, 960 F.3d at 1295–96; United States v McLellan, 958 

F.3d 1110, 1118–20 (11th Cir. 2020). We review the whole record 

to determine if there was a substantial effect on the defendant’s 

rights. United States v. Dudley, 5 F.4th 1249, 1256 (11th Cir. 2021).

In Greer, the Supreme Court held that the defendant had not 

established plain error for failure to inform him that the government would be required to prove that he knew he was a felon, in 

part because “[i]f a person is a felon, he ordinarily knows he is a 

felon.” 141 S. Ct. at 2097. We have reviewed other evidence that 

the defendants making challenges under Rehaif knew they were felons. Moore, 954 F.3d at 1337–38 (noting defendants had served 

lengthy sentences, had previously been charged under § 922(g), 

stipulated to their felony convictions, and one bore a tattoo stating 

the duration of his prior sentence).

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Here, Bryant’s claim does not survive plain error review. As 

an initial matter, it was plainly erroneous for the district court not 

to inform Bryant that the government would be required to prove 

his knowledge of felony status, and this error is the only defect in 

his plea colloquy. But Bryant has not asserted that he would not 

have pled guilty had he been properly informed. Moreover, he 

likely knew he was a felon as he had been released from a 160-

month sentence in 2011, something he is unlikely to forget, and 

expressed no confusion at being classed as a felon. The bottom 

line: Bryant has not alleged he did not know he was a felon, nor has 

he shown a reasonable probability that he would not have pled 

guilty absent the error. Therefore, under plain error review, Bryant’s claim necessarily fails.

IV. 18 U.S.C. § 922(g) is Constitutional

Challenges to the constitutionality of statutes are reviewed 

de novo if raised below and otherwise for plain error. United States 

v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

As a preliminary matter, Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several 

States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. 

However, as demonstrated in United States v. Lopez,2 Congressional 

acts will be struck down when they lack a jurisdictional element 

ensuring the prohibition in question affects interstate commerce. 

2 514 U.S. 549, 561–62 (1995) (striking down a prohibition on possessing firearms near schools in part because it lacked a jurisdictional element).

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Congressional prohibitions will also not pass muster if the claimed 

effects on interstate commerce are considered too attenuated. 

United States v. Morrison, 529 U.S. 598, 614–18 (2000). Neither Lopez 

nor Morrison struck down § 922(g). Importantly, we have upheld 

§ 922(g) against challenges that it exceeds congressional authority 

under the Commerce Clause, noting that it requires the firearm to

have traveled in interstate commerce. Wright, 607 F.3d at 715–16.

We review the § 922(g)’s constitutionality for plain error, as 

Bryant raises the issue for the first time on appeal. The district 

court did not plainly err because neither the text of the Commerce 

Clause nor any binding caselaw resolves this issue in Bryant’s favor. 

Though Bryant relies on Lopez and Morrison, both are distinguishable. In both Lopez and Morrison, the Supreme Court held the requisite jurisdictional element in the statutes at issue was lacking. 

Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 613. Our court has

found that the requisite jurisdictional element in § 922(g) has been 

met, as established in Wright, and therefore § 922(g) survives under 

a constitutional challenge. In sum, the caselaw that exists upholds 

§ 922(g) against challenges like Bryant’s under plain error, and his 

claim fails.

V. Aggravated Assault Qualifies as a Violent Felony Under ACCA

If not raised below, whether a defendant qualifies under 

ACCA will be reviewed only for plain error. United States v. Jones, 

743 F.3d 826, 829 (11th Cir. 2014).

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ACCA provides that “a person who violates section 

922(g) . . . and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” is to be given an enhanced sentence. 18 

U.S.C. § 924(e)(1). “[T]he term ‘violent felony’ means any crime 

punishable by imprisonment for a term exceeding one year . . . 

that-- (i) has as an element the use, attempted use, or threatened 

use of physical force against the person of another.” 18 U.S.C. 

§ 924(e)(2)(B). To determine whether a state crime qualifies, courts 

apply the categorical approach. United States v. Vereen, 920 F.3d 

1300, 1313 (11th Cir. 2019). This approach requires examining the 

elements of the state crime to determine if the minimal conduct 

which could result in a conviction satisfies the definition of an 

ACCA predicate. Id.; United States v. Jackson, 55 F.4th 846, 850 (11th 

Cir. 2022) (“[F]ederal law binds our construction of ACCA, and 

state law governs our analysis of elements of state-law crimes.”). 

No crime which may be committed with the mens rea of recklessness satisfies the definition of violent felony. Borden v. United States, 

141 S. Ct. 1817, 1825 (2021) (plurality opinion).

Under the categorical approach, courts “consult the law that 

applied at the time of that conviction.” McNeill v. United States, 563 

U.S. 816, 820 (2011) (applying the statutes in effect at the time of 

the contested conviction). However, “[w]hen the Florida Supreme 

Court . . . interprets [a] statute, it tells us what that statute always 

meant,” so prior differing interpretations do not alter whether convictions qualify, even if the conviction occurred while the 

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interpretation was binding. United States v. Fritts, 841 F.3d 937, 942–

43 (11th Cir. 2016).

Florida law criminalizes “aggravated assault,” defined as “an 

assault: (a) With a deadly weapon without intent to kill; or (b) With 

an intent to commit a felony.” Fla. Stat. § 784.021(1) (1975) 

(amended 2021). The Florida Supreme Court, in 2022, interpreted 

aggravated assault to “require[] not just the general intent to volitionally take the action of threatening to do violence, but also that 

the actor direct the threat at a target, namely, another person.” 

Somers v. United States, 355 So. 3d 887, 892–93 (Fla. 2022). We have 

held, in reliance on that interpretation, that Florida law aggravated 

assault requires knowing conduct and qualifies as a violent felony 

under ACCA. Somers v. United States, 66 F.4th 890, 894 (11th Cir. 

2023).

We review whether Bryant’s Florida law aggravated assault 

conviction qualifies under ACCA for plain error. Bryant was convicted of aggravated assault under Florida law in 1993. The Florida 

Supreme Court has interpreted the statute as requiring intent and 

we have, therefore, found that Florida aggravated assault convictions qualify under ACCA. This interpretation states what Florida 

law always was and prior interpretations of the statute, even if 

binding on the court wherein Bryant was convicted, make no difference. To the extent Bryant argues that he was not properly convicted under this interpretation of the statute, the validity of his 

conviction is not at issue. Therefore, Bryant’s claim fails under 

plain error review.

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VI. Bryant’s Prior Convictions Were Properly Determined to be Separate Offenses, Qualifying Him for 

ACCA Sentencing

ACCA only applies if the qualifying prior offenses occurred 

on separate occasions. 18 U.S.C. § 924(e)(1). We “determine 

whether two offenses occurred on the same ‘occasion’ based on the 

ordinary meaning of the word.” United States v. Penn, 63 F.4th 1305, 

1318 (11th Cir. 2023). “Several factors may be relevant to that determination: the amount of time between offenses, the proximity 

of the locations where the offenses occurred, and whether the offenses are part of the same scheme or achieve the same objective.” 

Id. However, one factor may be dispositive. Id. For example, a 

defendant’s two cocaine sales one month apart “no more occurred 

on the same occasion than two baseball games between the same 

teams at the same stadium one month apart.” Id.

We have held that whether offenses occurred on separate occasions is a separate inquiry from the categorical approach used to 

determine whether the offense qualifies under ACCA. Dudley, 5 

F.4th at 1258–59. Therefore, the district court need not rely solely 

on the elements of the prior offenses to determine if they occurred 

on the same occasion. Id.

A district court may rely on any statements in the PSR that 

the defendant did not object to “with specificity and clarity.” United 

States v. Bennett, 472 F.3d 825, 832–33 (11th Cir. 2006). However, 

“[w]here a defendant objects to the factual basis of his sentence, 

the government has the burden of establishing the disputed fact.” 

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Id. at 832. Notably, we have rejected the argument that Descamps v. 

United States3 and Mathis v. United States4 require jury trials to find

separate occasions. Dudley, 5 F.4th at 1265.

We review the district court’s findings that Bryant’s prior offenses occurred on separate occasions for plain error. While Bryant 

initially objected to the facts of his prior offenses as described in the 

PSR, these objections appear to have been withdrawn or forfeited 

between the time the PSR was prepared and sentencing. Bryant 

agreed with the facts as reported in the PSR, twice stating at sentencing that he did not object to the facts in the PSR. Therefore,

the district court was free to rely on those facts at sentencing. The 

facts reported by the PSR establish that Bryant’s Florida law aggravated assault conviction and his two possessions with intent to distribute convictions occurred on different dates, separated by no less 

than seven days. They were, thus, on separate occasions, and Bryant’s sentence withstands plain error review.

VII. Bryant’s ACCA-Enhanced Sentence Does Not Plainly 

Violate the Fifth and Sixth Amendments

The argument that “judicially determining whether prior 

convictions were committed on different occasions from one another for [ACCA] purposes” violates the Fifth and Six Amendments 

has been “repeatedly rejected” by this court. Dudley, 5 F.4th at 1260. 

We have held that a defendant’s prior convictions and the dates he 

3 570 U.S. 254 (2013).

4 579 U.S. 500 (2016).

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committed the crimes need not be alleged in the indictment, admitted in the defendant’s plea, or proven beyond a reasonable 

doubt. See id. “[W]here there is evidence of confirmation of the 

factual basis for the plea by the defendant—be it express or implicit 

confirmation—a federal sentencing court is permitted to rely on 

those facts to conduct the different-occasions inquiry.” Id. at 1262. 

Because Bryant did not raise the issue below, we review this 

issue for plain error. As our precedent clearly affirms, the judicial 

determination of the different-occasions inquiry is not violative of 

the Fifth and Sixth Amendments. Here, Bryant confirmed the factual basis of his plea, and the district court used that information 

to determine his sentencing under ACCA. None of these acts infringed upon Bryant’s Fifth or Sixth Amendment rights, and the 

district court did not err, much less plainly err, in sentencing Bryant 

in light of that information.

AFFIRMED.

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