[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-13428

Non-Argument Calendar

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D.C. Docket No. 1:14-cr-20801-JLK-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

CARLO JUNIOR SENECHARLES, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 31, 2016)

Before JORDAN, JULIE CARNES and BLACK, Circuit Judges.

PER CURIAM: 

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Carlo Junior Senecharles appeals his conviction and sentence for possession 

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 

924(e). He raises three issues on appeal, which we address in turn. After review, 

we affirm Senecharles’s conviction and sentence. 

I. DISCUSSION

A. Unconstitutionality of 18 U.S.C. § 922(g)

Senecharles first contends that 18 U.S.C. § 922(g) is unconstitutional, both 

facially and as-applied to him, because his possession of the firearm did not have a 

substantial effect on interstate commerce.

Because Senecharles did not object to the constitutionality of the 

felon-in-possession statute in the district court, we review for plain error. See 

United States v. Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005) (stating we 

review constitutional objections “not raised before the district court only for plain 

error”). Senecharles’s facial challenge is directly foreclosed by our precedent 

upholding the constitutionality of 18 U.S.C. § 922(g). See United States v. Scott, 

263 F.3d 1270, 1273 (11th Cir. 2001) (holding “the jurisdictional element of the 

statute, i.e., the requirement that the felon ‘possess in or affecting commerce, any 

firearm or ammunition,’ immunizes § 922(g)(1) from [a] facial constitutional 

attack”). Further, because the parties stipulated the firearm and ammunition had 

traveled through interstate commerce before the offense was committed, the 

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Government established a minimal nexus between Senecharles’s firearm and 

ammunition and interstate commerce, and the statute was constitutional as-applied 

to him. See United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) 

(holding § 922(g) is not unconstitutional as applied to “a defendant who possessed 

a firearm only intrastate” when the government demonstrated that the firearm 

moved in interstate commerce). 

B. Armed Career Criminal Act

Senecharles also asserts the district court erred by sentencing him under the 

Armed Career Criminal Act (ACCA) because he did not have three prior 

convictions for a violent felony or a serious drug offense. He contends his prior 

Florida convictions for possession of cocaine with intent to distribute, attempted 

first-degree murder, armed robbery, and armed burglary do not qualify as predicate 

offenses for ACCA purposes. He does not challenge, however, his prior

second-degree murder conviction.

Under the ACCA, a defendant convicted pursuant to 18 U.S.C. § 922(g) is 

subject to a mandatory minimum 180-month sentence if he has 3 prior convictions 

for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). A 

“serious drug offense” is defined in part as “an offense under State law, involving 

manufacturing, distributing, or possessing with intent to manufacture or distribute, 

a controlled substance . . . for which a maximum term of imprisonment of ten years 

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or more is prescribed by law.” Id. § 924(e)(2)(A)(ii). A “violent felony” is any 

crime punishable by an imprisonment 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; or

(ii) is burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk 

of physical injury to another.

Id. § 924(e)(2)(B). 

Senecharles’s argument with regard to his Florida conviction under Fla. Stat. 

§ 893.13(1) for possession of cocaine with intent to distribute is directly foreclosed 

by our precedent. See United States v. Smith, 775 F.3d 1262, 1266-68 (11th Cir. 

2014) (holding convictions under Fla. Stat. § 893.13(1) qualify as serious drug 

offenses pursuant to the ACCA, despite the Florida statute’s lack of a mens rea

element). Senecharles’s argument that Smith was wrongly decided and should not 

be followed is likewise unavailing. See United States v. Archer, 531 F.3d 1347, 

1352 (11th Cir. 2008) (explaining that under the prior panel precedent rule, we are 

bound by the holding of a prior panel until that holding is overruled or undermined 

to the point of abrogation by a decision of the Supreme Court or our Court sitting 

en banc). Therefore, the district court correctly concluded that his cocainepossession offense was an ACCA predicate felony.

Next, because Senecharles did not object below to the district court’s 

determination that his previous attempted first-degree murder conviction was a 

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predicate offense under the ACCA, we review this claim for plain error. See 

United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014) (reviewing for plain 

error a challenge to a conviction being classified as a “violent felony” that was 

raised for the first time on appeal). The Supreme Court has noted in the context of 

the ACCA that attempted murder is the “prototypically violent crime.” James v. 

United States, 550 U.S. 192, 208 (2007) overruled on other grounds by Johnson,

135 S. Ct. 2551 (2015). As there is no precedent squarely resolving whether 

Florida attempted first-degree murder is a violent felony under the ACCA and 

attempting to kill with a firearm squarely fits within the ACCA’s definition of 

attempted use of force against another, we conclude that the district court 

committed no plain error when it determined that this felony was an ACCA 

predicate felony. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th 

Cir. 2003) (explaining there is no plain error where the explicit language of a 

statute or rule does not specifically resolve an issue and there is no precedent from 

the Supreme Court or our Court directly resolving it); Gordon v. State, 744 So. 2d 

1112, 1113-14 (Fla. 5th DCA 1999) (stating “intent to kill” is an element of 

attempted first degree murder with a firearm). Although Senecharles also 

challenges his convictions for armed robbery and armed burglary, we do not need 

to reach those convictions, as he has three predicate felony convictions—

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possession of cocaine with intent to distribute, attempted first-degree murder, and 

second-degree murder—without them. 

C. Unconstitutionality of ACCA enhancement

Senecharles finally argues that his enhanced sentence violated the Fifth and 

Sixth Amendments under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), 

because none of the facts supporting the enhancement were charged in the 

indictment, nor did he admit them at trial.

We have “consistently held” that Almendarez-Torres v. United States, 523 

U.S. 224 (1998), remains good law and that, for ACCA purposes, district courts 

may determine both the existence of prior convictions and the factual nature of those 

convictions. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013). 

Senecharles did not object in the district court on the basis that his ACCA 

enhancement was unconstitutional under Apprendi, and, therefore, we review this 

claim for plain error. See Moriarty, 429 F.3d at 1018-19. Weeks directly forecloses 

Senecharles’s argument, and, therefore, there was no error, plain or otherwise, 

regarding the constitutionality of Senecharles’s ACCA enhancement. See Weeks, 

711 F.3d at 1259. 

II. CONCLUSION

Accordingly, we affirm Senecharles’s conviction and sentence. 

AFFIRMED.

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