[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-13435

Non-Argument Calendar

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D.C. Docket No. 8:18-cr-00077-SDM-TGW-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JAMAAR DANGLO HAYES, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

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(June 12, 2019)

Before WILLIAM PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Jamaar Hayes appeals his conviction and sentence for being a felon in 

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 

924(e). On appeal, Hayes challenges: (1) the district court’s determination that the 

government did not have to prove Hayes knew he was a convicted felon under 

§ 924(e); (2) the district court’s reliance on its own findings that Hayes’s three 

predicate Armed Career Criminals Act (“ACCA”) offenses occurred on different 

occasions; (3) the Fifth and Sixth Amendment violations resulting from the district 

court’s determination that Hayes’s three predicate ACCA offenses occurred on 

different occasions; and (4) the district court’s determination that his prior 

convictions under Fla. Stat. §893.13 were serious drug offenses under § 924(e). 

We will consider each challenge in turn.

I.

When a defendant fails to object to a Rule 11 violation occurring during his 

plea colloquy in the district court, we will review only for plain error. United 

States v. Presendieu, 880 F.3d 1228, 1237 (11th Cir. 2018). Where a defendant 

raises a challenge to the sufficiency of the indictment for the first time on appeal, 

we will conclude that the indictment was sufficient “unless it is so defective that it 

does not, by any reasonable construction, charge an offense for which the 

defendant is convicted.” United States v. Lang, 732 F.3d 1246, 1247 (11th Cir. 

2013) (quotations omitted). 

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Section 924(a)(2) of Title 18 of the United States Code provides that a 

person who “knowingly violates” § 922(g) shall be imprisoned for a maximum of 

ten years. 18 U.S.C. § 924(a)(2). Section 922(g)(1) of Title 18 of the United 

States Code criminalizes the possession of a firearm or ammunition in or affecting 

interstate commerce by a convicted felon. 18 U.S.C. § 922(g)(1). The offense 

includes three distinct elements: (1) possession of a firearm (“possession 

element”); (2) by a convicted felon (“status element”); and (3) the possession was 

in or affecting interstate or foreign commerce (“commerce element”). United 

States v. Rehaif, 888 F.3d 1138, 1143 (11th Cir. 2018), cert. granted, 139 S.Ct. 914 

(Jan. 11, 2019) (No. 17-9560). 

In Rehaif, we analyzed § 924(a)(2) and held that “knowingly” does not apply 

to the status element of § 922(g), which in Rehaif was the defendant’s status as an 

unlawful alien. Id. at 1144-45. Prior to Rehaif, we specifically analyzed 

§ 922(g)(1) and held that the government was not required to prove that the 

defendant knew he was a convicted felon when he unlawfully possessed the 

firearm at issue. United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997). 

Under the prior panel precedent rule, a prior panel’s holding is binding on all 

subsequent panels unless and until it is overruled or undermined to the point of 

abrogation by the Supreme Court or by us sitting en banc. United States v. Archer, 

531 F.3d 1347, 1352 (11th Cir. 2008). There is no exception to the prior panel 

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precedent rule for overlooked or misinterpreted precedent. United States v. Fritts, 

841 F.3d 937, 942 (11th Cir. 2016). Likewise, a grant of certiorari does not 

change the law and is not a basis for relief, because we are required to apply our 

binding precedent until the Supreme Court issues a decision that changes the law. 

Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015).

A review of our precedent reveals that Hayes’s challenge is foreclosed by 

our decisions in Rehaif and Jackson. See Rehaif, 888 F.3d at 1144-45; Jackson, 

120 F.3d at 1229. As we are bound by our precedent, we affirm.

II.

Generally, we review de novo whether predicate offenses meet the different 

occasions requirement of the ACCA. United States v. Longoria, 874 F.3d 1278, 

1281 (11th Cir. 2017). However, we review claims raised for the first time on 

appeal for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 

2005). To satisfy the plain error standard, an appellant must show: (1) an error 

occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it 

seriously affected the fairness of the judicial proceedings. Id. “An error is not 

plain unless it is contrary to explicit statutory provisions or to on-point precedent in 

this Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 

(11th Cir. 2009) (per curiam). 

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If a defendant violates § 922(g) and has three previous felony convictions 

that are violent felonies or serious drug offenses that were “committed on 

occasions different from one another,” that defendant is an armed career criminal 

under the ACCA. 18 U.S.C. § 924(e)(1). We have previously held that a district 

court may determine for itself whether prior convictions exist and whether they 

were committed on different occasions, so long as it limits its inquiry to the 

statutory definition of the prior offense, the indictment, the plea agreement, the 

plea colloquy, and “any explicit factual finding by the trial judge to which the 

defendant assented.” Longoria, 874 F.3d at 1281. Similarly, we have held that a 

district court may consider Shepard1 documents in determining whether a 

defendant committed ACCA predicate offenses on different occasions without 

proof beyond a reasonable doubt. United States v. Overstreet, 713 F.3d 627, 635 

(11th Cir. 2013).

In Descamps, the Supreme Court held that a sentencing court may look only 

to the statutory definitions of the elements of a defendant’s prior offenses of 

conviction, and not to the particular facts underlying those convictions, in 

determining whether a prior offense is a violent felony under § 924(e). Descamps 

v. United States, 570 U.S. 254, 262-64 (2013).

 1 Shepard v. United States, 544 U.S. 13 (2005).

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In Sneed, we held that sentencing courts are limited to the examination of 

Shepard documents in determining whether prior offenses of conviction were 

committed on different occasions under § 924(e)(1). United States v. Sneed, 600 

F.3d 1326, 1332 (11th Cir. 2010). Thereafter, we held that a district court may 

determine whether a defendant’s prior convictions were committed on separate 

occasions under the ACCA based on undisputed statements in the PSI. United 

States v. McCloud, 818 F.3d 591, 595-96 (11th Cir. 2016). However, any portions 

to which the defendant specifically objected must be proven by the government by 

a preponderance of the evidence. Id. 

Here, the district court did not plainly err by determining for itself whether 

Hayes’s three predicate offenses occurred on different occasions, because the court 

was permitted to make this finding using Shepard documents. See Longoria, 874 

F.3d at 1281. Moreover, the Shepard documents in the record, including the 

judgments of Hayes’s prior convictions, support the district court’s conclusion that 

the predicate offenses were committed on different occasions. Accordingly, we 

affirm.

III.

Ordinarily, we review constitutional challenges to a sentence de novo. 

United States v. Deshazior, 882 F.3d 1352, 1354-55 (11th Cir. 2018), cert. denied, 

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(Feb. 25, 2019) (No. 17-8766). However, as previously stated, we review claims 

raised for the first time on appeal for plain error. Rodriguez, 398 F.3d at 1298. 

Generally, the Fifth Amendment protects the right to be indicted by a grand 

jury, and the Sixth Amendment protects the right to trial by jury. U.S. Const. 

Amend. V; U.S. Const. Amend. VI. Accordingly, in Alleyne v. United States, the 

Supreme Court held that “[a]ny fact that, by law, increases the penalty for a crime 

is an “element” that must be submitted to the jury and found beyond a reasonable 

doubt. Alleyne v. United States, 570 U.S. 99, 103 (2013). Notably, the Supreme 

Court reserved from this rule the fact of a prior conviction. Id. at 111 n.8; see also 

Almendarez-Torres v. United States, 523 U.S. 224, 243-247 (1998). Additionally, 

in Sneed, we recognized the Sixth Amendment concerns of Shepard. Sneed, 600 

F.3d at 1331-32.

In Overstreet, we also held that the government is not required to prove the 

existence of the defendant’s prior convictions beyond a reasonable doubt in order 

to sentence him under the ACCA, regardless of whether the defendant admits to 

the convictions during his plea colloquy. Overstreet, 713 F.3d at 635. Further, in 

Longoria, we rejected the defendant’s contention that his ACCA sentence violated 

his Fifth and Sixth Amendment rights because the district court determined that his 

convictions occurred on different occasions, based on our prior precedent allowing 

this practice and acknowledging that the Supreme Court has held that a penalty 

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provision authorizing a court to increase a sentence based on prior convictions 

need not be alleged in the indictment. Longoria, 874 F.3d at 1283.

A review of our precedent indicates that Hayes’s challenge is foreclosed by 

our precedents in Longoria and Overstreet. Longoria, 874 F.3d at 1283; 

Overstreet, 713 F.3d at 635. The district court was permitted to determine for 

itself whether Hayes’s convictions were committed on different occasions using 

Shepard documents, and doing so did not violate Hayes’s Fifth or Sixth 

Amendment rights. Longoria, 874 F.3d at 1281, 1283. Accordingly, the district 

court did not plainly err and we affirm.

IV.

We review de novo whether a defendant’s prior convictions qualify as 

serious drug offenses under the ACCA. Longoria, 874 F.3d at 1281. In Smith, we

reviewed the defendants’ convictions under Fla. Stat. § 893.13 and determined that 

the convictions qualified as serious drug offenses because they met the statutory 

requirements of § 924(e)(2)(A)(ii), which requires: (1) the conviction be for a state 

law offense; (2) punishable by at least ten years’ imprisonment; and (3) involving 

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

a controlled substance. United States v. Smith, 775 F.3d 1262, 1267 (11th Cir. 

2014) (citing 18 U.S.C. § 924(e)(2)(A)(ii)). This Court explained that no element 

of mens rea with regard to the illicit nature of the controlled substance was 

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contemplated by the definition, and that we look to the plain language of the 

definitions to determine their elements when the language is, as in 

§ 924(e)(2)(A)(ii), unambiguous. Smith, 775 F.3d at 1267-68.

Again, a review of our precedent reveals that Hayes’s challenge his 

foreclosed by our decision in Smith, in which we analyzed the same Florida statute 

that Hayes was convicted under. Smith, 775 F.3d at 1267. Because we are bound 

by our precedent, we affirm.

AFFIRMED.

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