[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14934

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

RONALD GEORGE LATSON, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cr-00552-SDM-AAS-1

____________________

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2 Opinion of the Court 19-14934

Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.

PER CURIAM:

There are two issues in this criminal appeal. First, whether 

18 U.S.C. § 922(g) violates the Constitution. And second, whether 

the district court plainly erred in enhancing Ronald Latson’s sentence for violating Section 922(g) under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Our precedent answers the first question in the negative and the second in the positive. Accordingly, we 

affirm Latson’s conviction, vacate his sentence, and remand for resentencing. 

I. BACKGROUND 

On June 22, 2018, Tampa police arrested Ronald George 

Latson after responding to a complaint that he had been selling marijuana at a park. When officers searched Latson, they found a firearm and ammunition. Latson was later indicted in the Middle District of Florida on a single count of knowingly possessing a firearm 

and ammunition in and affecting interstate commerce while having been convicted of a felony, a violation of Sections 922(g)(1) and 

924(e). Latson pleaded guilty, and the court accepted his plea.

After the Supreme Court decided Rehaif v. United States, 

588 U.S. ___, 139 S. Ct. 2191 (2019), the district court vacated the

plea. Latson then moved to dismiss the Section 922(g) count, arguing that the statute exceeded Congress’s legislative authority under 

the Commerce Clause. The district court denied his motion.

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After the motion to dismiss failed, Latson waived his right 

to be charged by indictment and was charged again in a superseding information, this time of knowing that he was a convicted felon 

and knowingly possessing a firearm and ammunition. He then entered a new guilty plea, and was sentenced to 180 months in prison, 

the mandatory minimum prison sentence under the Armed Career 

Criminal Act, plus sixty months of supervised release. 

Latson’s presentence investigation report found that his total offense level was twenty-five but revised that total up to thirtyone based on an Armed Career Criminal Act enhancement. The 

report cited five qualifying convictions under Florida’s drug crimes 

statute, Fla. Stat. § 893.13, as predicates: four relating to marijuana 

and one relating to cocaine. With the enhancement included, the 

report found that Latson’s guidelines range was 188-to-235 months 

with a mandatory minimum of 180 months in prison. Without the 

enhancement, his guidelines range would have been 110-to-137 

months with a statutory maximum of 120 months in prison and 

thirty-six months of supervised release. Although Latson objected 

to the enhancement before the district court, he never argued that

his marijuana convictions were not qualifying “serious drug offenses” because Florida law criminalized a broader category of marijuana than federal law. 

Latson timely appealed both his conviction and his sentence.

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II. DISCUSSION 

A. Section 922(g) Does Not Violate the Constitution

Latson argues that his conviction should be vacated because 

Section 922(g) exceeds Congress’s legislative authority under the 

Commerce Clause. But Latson’s brief acknowledges that our binding precedent forecloses such a challenge, and we agree. See United 

States v. Scott, 263 F.3d 1270, 1271–74 (11th Cir. 2001); United 

States v. Wright, 607 F.3d 708, 715–16 (11th Cir 2010).

B. The District Court Plainly Erred by Enhancing Latson’s 

Sentence

Latson next argues that his sentence was unlawful because

his four Florida marijuana convictions were not “serious drug offenses” under the Armed Career Criminal Act. 18 U.S.C. 

§ 924(e)(1). Specifically, he argues that Florida law criminalizes the 

“mature stalks” of the cannabis plaint, but federal law does not. Accordingly, he contends, his Florida convictions are not “serious 

drug offenses” that serve as valid predicates capable of supporting 

a sentencing enhancement. And if his four marijuana convictions 

had not been considered “serious drug offenses,” Latson would not 

have possessed the requisite three convictions necessary to qualify 

for an Armed Career Criminal Act enhancement. See id.

Our review is complicated by Latson’s failure to raise and 

litigate this argument in a timely manner. Latson raised this argument for the first time on appeal—not in the district court. And, 

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even on appeal, he first raised it in a supplemental filing—not his 

opening brief. Accordingly, we must begin by evaluating whether 

we can consider this argument at all and, if we can, whether Latson 

can establish plain error.

We turn first to Latson’s failure to raise this argument in his 

opening brief. In the usual course, an appellant’s failure to make an 

argument in his initial brief forfeits that argument. United States v. 

Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc). But we may 

forgive such a forfeiture upon consideration of five factors. Those 

factors are (1) whether the argument involves a pure question of 

law, the refusal to consider which would result in a miscarriage of 

justice; (2) whether the party raises an objection to an order which 

he had no opportunity to challenge below; (3) whether the interest 

of substantial justice is at stake; (4) whether the proper resolution 

of the issue is beyond any doubt; and (5) whether the issue presents 

significant questions of general impact or great public concern. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 

2004).

Upon consideration of the Access Now factors, we forgive 

Latson’s forfeiture because his argument: (1) involves a pure question of law, the refusal to consider which would result in the affirmance of a sentence exceeding the statutory maximum; (2) implicates the interests of substantial justice; and (3) concerns an issue 

the resolution of which is beyond doubt in the light of our recent 

precedents. See Said v. U.S. Att’y Gen., 28 F.4th 1328, 1333 (11th 

Cir. 2022).

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Having concluded that we can consider the argument despite Latson’s failure to raise it in his opening brief on appeal, we 

review only for plain error because Latson failed to raise the argument before the district court. Wright, 607 F.3d at 715. “Plain error 

occurs if (1) there was error, (2) that was plain, (3) that affected the 

defendant’s substantial rights, and (4) that seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted).

Turning to the first element of plain error, the government 

concedes, and we agree, that Latson has established that the district 

court erred in enhancing his sentence. We apply the categorical approach to determine whether a particular Florida drug offense is a 

“serious drug offense” under the Armed Career Criminal Act. See 

Shular v. United States, 589 U.S. ___, 140 S. Ct. 779, 783 (2020);

United States v. Jackson, 36 F.4th 1294, 1300 (11th Cir. 2022); Guillen v. U.S. Att’y Gen., 910 F.3d 1174, 1183 (11th Cir. 2018). That is, 

we look to whether the least culpable conduct criminalized by the 

state statute is a “serious drug offense” under federal law. Latson 

notes that Florida law at the time of his convictions prohibited the 

possession of “the mature stalks of [the cannabis] plant” but federal 

law does not. Indeed, Florida has criminalized mature cannabis 

stalks since 1979, see Fla. Stat. § 893.02, historical and statutory 

notes (citing Laws 1979, c. 79-325, § 1), and federal law allowed 

possession of mature stalks both at the time of Latson’s federal firearm offense and at all other potentially relevant times, see 21 U.S.C. 

802(16) (Effective Apr. 15, 2009, to Dec. 17, 2014); id. (Effective 

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Dec. 18, 2014, to July 21, 2014); id. (Effective July 22, 2016, to Oct. 

23, 2018); id. (Effective Dec. 21, 2018, to present).

Because of this mismatch between Florida and federal law, 

Latson reasons that his Florida marijuana convictions are not “serious drug offenses” under federal law. Our recent decision in Said

adopts Latson’s position. In Said, we held that (1) a mismatch between Florida and federal law exists as to the treatment of mature 

cannabis stalks and (2) the “significant divergence” between the

two is “on its own . . . sufficient to establish a realistic probability 

of broader prosecution under Florida law.” 28 F.4th at 1333. See

also Chamu v. U.S. Att’y Gen., 23 F.4th 1325, 1330 (11th Cir. 2022)

(addressing “realistic probability” standard). Because the same disparity between the Florida law and federal law in Said also exists

here, the district court erred by enhancing Latson’s sentence based 

on his Florida marijuana convictions. 

Second, the government concedes, and we agree, that the 

district court’s error was plain. To be plain, an error must be “clear 

under current law,” United States v. Chau, 426 F.3d 1318, 1322 

(11th Cir. 2005) (quoting United States v. Olano, 507 U.S. 725, 734 

(1993)), as expressed by either “the explicit language of a statute or 

rule” or “precedent from the Supreme Court or this Court” that 

directly resolves the issue, id. (quoting United States v. LejardeRada, 319 F.3d 1288, 1291 (11th Cir. 2003)). Said directly resolves 

the legal issue in Latson’s favor. Although the district court did not 

have the benefit of Said, that timing does not matter for the purposes of plain error review. See United States v. Jones, 743 F.3d 826, 

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829–30 (11th Cir. 2014) (applying an “intervening decision” on 

plain error review).

Finally, Latson has shown that the plain error affected both 

his substantial rights and the fairness, integrity, or public reputation 

of judicial proceedings. Without the Armed Career Criminal Act 

Enhancement, Latson would have faced a 120-month mandatory 

maximum prison sentence followed by at most thirty-six months

of supervised release. 18 U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(b)(2). 

With the enhancement, he was instead subject to a 180-month

mandatory minimum, to which the district court added sixty 

months of supervised release. We have held that an improperly enhanced sentence exceeding the statutory maximum justifies relief 

on plain-error review. Jones, 743 F.3d at 830.

III. CONCLUSION 

For the foregoing reasons, Latson’s conviction is 

AFFIRMED. His sentence is VACATED and REMANDED for resentencing.

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