[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10332

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

CHARLES HYDE, 

a.k.a Chuck, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:19-cr-00005-LGW-BWC-2

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2 Opinion of the Court 22-10332

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Before WILSON, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Charles Hyde appeals his convictions for drug and 

firearm-related offenses and the imposition of his 444-month sentence. Hyde raises several arguments on appeal: (1) that the district 

court erred by finding his waiver of counsel valid; (2) that the district court erred by failing to declare that 18 U.S.C. §§ 922(g)(1) and 

(k) violated his Second Amendment rights; (3) that the district court 

erred by constructively amending his superseding indictment, warranting reversal of his conviction and sentence for brandishing a 

gun in furtherance of a drug-trafficking crime; (4) that the evidence 

that he brandished a firearm in furtherance of a drug-trafficking 

crime was so insufficient as to render this conviction a manifest 

miscarriage of justice; (5) that the district court erred by sentencing 

him as an armed career criminal; and (6) that the district court 

plainly erred by enhancing his sentence without submitting his 

prior convictions to a jury. Having read the parties’ briefs and reviewed the record, we affirm Hyde’s convictions and sentence.

I.

We review de novo whether a waiver of the right to counsel 

was knowing and voluntary, which is a mixed question of law and 

fact. United States v. Garey, 540 F.3d 1253, 1268 (11th Cir. 2008) (en 

banc). On appeal, it is the government’s burden to show the validity of the waiver. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 

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1995). We have not yet decided whether a Faretta challenge raised 

for the first time on appeal is reviewed de novo or for plain error. 

See United States v. Owen, 963 F.3d 1040, 1048 n.5 (11th Cir. 2020).

Under the Sixth Amendment, all criminal defendants are entitled to the assistance of counsel. U.S. Const. amend. VI. To 

waive the right to counsel, the defendant “must clearly and unequivocally assert the right of self-representation,” and this waiver 

must be “knowing, intelligent, and voluntary.” Owen, 963 F.3d at 

1048 (quotation marks omitted). When a defendant asks to represent himself, the district court should ideally hold a hearing pursuant to Faretta v.California, 422 U.S. 806, 819 (1975) to inform him of 

the charges against him, the possible punishments, basic trial procedure, and the hazards of self-representation. United States v. Kimball, 291 F.3d 726, 730 (11th Cir. 2002). This hearing allows the district court to determine that the defendant understands the risks of 

self-representation and makes a fully informed choice. Id. “As long 

as the record establishes that the defendant understood the risks of 

self-representation and freely chose to face them, the waiver may 

be valid.” Owen, 963 F.3d at 1049 (quotation marks omitted). 

We consider eight factors in determining whether the defendant’s waiver was knowing and voluntary:

(1) the defendant’s age, health, and education; (2) the 

defendant’s contact with lawyers prior to trial; (3) the 

defendant’s knowledge of the nature of the charges 

and possible defenses and penalties; (4) the defendant’s understanding of the rules of evidence, 

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procedure and courtroom decorum; (5) the defendant’s experience in criminal trials; (6) whether 

standby counsel was appointed and, if so, the extent 

to which standby counsel aided in the trial; (7) any 

mistreatment or coercion of the defendant; and 

(8) whether the defendant was attempting to manipulate the trial.

Kimball, 291 F.3d at 730-31. A defendant’s waiver may be valid 

when most of these factors do not weigh in his favor. Id. at 731. 

Importantly, a defendant need not have the skill and experience of 

a lawyer to make a valid waiver. Faretta, 422 U.S. at 835.

Here, as an initial matter, although Hyde raises a Faretta 

challenge for the first time on appeal, we need not decide whether 

to review the claim de novo or for plain error because his claim fails 

even on de novo review. See Owen, 963 F.3d at 1048 n.5. Based on

a review of the record and the Faretta inquiry, we conclude that the 

district court did not err in concluding that Hyde’s waiver of counsel was knowing, intelligent, and voluntary. The magistrate judge 

covered most of the Kimball factors at two hearings, warning Hyde 

of the risks he faced by proceeding without counsel. The magistrate judge informed Hyde of the nature of the charges against him 

by detailing each of the five counts in the superseding indictment; 

he addressed the statutory prison terms for each of the charges; he 

warned Hyde of the dangers of self-representation; and he questioned Hyde about his knowledge of basic legal procedures. The 

magistrate judge appointed stand-by counsel, the same counsel 

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who had represented Hyde for 13 months at that time, and after 

Hyde insisted that his waiver was entirely voluntary, the magistrate judge granted his motion to proceed pro se. “As long as the 

record establishes that the defendant understood the risks of selfrepresentation and freely chose to face them, the waiver may be 

valid.” United States v. Stanley, 739 F.3d 633, 645 (11th Cir. 2014) 

(“The ultimate test is not the trial court’s express advice, but rather 

the defendant’s understanding.”).

The trial court also considered the information provided in 

the psychiatric evaluation requested by defense counsel, which included Hyde’s background and history of substance abuse. In the 

evaluation, Hyde denied any history of mental health symptoms. 

The psychologist concluded that Hyde was able to understand the 

nature and consequences of the criminal proceedings against him 

and assist in his defense and, thus, was competent to stand trial. 

Based on all these factors, the district court granted Hyde’s motion 

to proceed pro se. We conclude, based on this record, that the district court did not err in granting the motion, and we affirm as to 

this issue.

II.

Hyde argues that 18 U.S.C. §§ 922(g)(1) and (k) violate his 

Second Amendment rights. Generally, we review de novo the constitutionality of a statute, as it is a question of law. United States v. 

Wright, 607 F.3d 708, 715 (11th Cir. 2010). However, if the issue is 

raised for the first time on appeal, as it is here, we review for plain 

error only. Id. Under plain-error review, we will reverse a district 

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court’s decision only if “there is: (1) error, (2) that is plain, and (3) 

that affects substantial rights, and if (4) the error seriously affects 

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

United States v. Doyle, 857 F.3d 1115, 1118 (11th Cir. 2017) (quotation marks omitted). An error is plain if it is clear or obvious—if 

the explicit language of a statute, rule, or precedent from the Supreme Court or this court directly resolves the issue. United States 

v. Innocent, 977 F.3d 1077, 1085 (11th Cir. 2020).

Under the prior panel precedent rule, we are bound by our 

prior published decisions unless and until they are overruled or undermined to the point of abrogation by the Supreme Court or this 

court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352 

(11th Cir. 2008). “While an intervening decision of the Supreme 

Court can overrule the decision of a prior panel of our court, the 

Supreme Court decision must be clearly on point.” Id. (quotation 

marks omitted). “The prior panel precedent rule applies regardless 

of whether the later panel believes the prior panel’s opinion to be 

correct, and there is no exception to the rule where the prior panel 

failed to consider arguments raised before a later panel.” United 

States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019).

Section 922(g) of Title 18 of the United States Code prohibits 

anyone who has been convicted of a crime punishable by more 

than one year “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1). Section 922(k) of Title 18 of the 

United States Code makes it unlawful to “receive . . . any firearm 

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which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped 

or transported in interstate or foreign commerce.” 18 U.S.C. 

§ 922(k).

The prior panel precedent rule bars Hyde’s challenge to the 

constitutionality of § 922(g)(1). Our conclusion in Rozier that § 

922(g)(1) is a constitutional restriction on a defendant’s Second 

Amendment rights is still binding precedent, and we are bound to 

follow that panel’s decision. United States v. Rozier, 598 F.3d 768,

772 (11thCir. 2010); Archer, 531 F.3d at 1352. Further, Hyde cannot 

establish plain error as to his § 922(k) argument. First, weapons 

with altered or obliterated serial numbers are not usually possessed 

by law-abiding citizens for lawful purposes and, thus, fall outside 

the protection of the Second Amendment. District of Columbia v. 

Heller, 554 U.S. 570, 625, 128 S. Ct. 2783, 2815-16 (2008). Second, 

neither we nor the Supreme Court have held that § 922(k) is unconstitutional under the Second Amendment. Innocent, 977 F.3d at 

1085. Thus, we affirm as to this issue.

III.

We review de novo whether a district court’s instructions 

constructively amended an indictment. United States v. Gutierrez, 

745 F.3d 463, 473 (11th Cir. 2014). Where a defendant did not object to jury instructions at trial, we review for plain error. United 

States v. Whyte, 928 F.3d 1317, 1331 (11th Cir. 2019). Similarly, 

when a defendant fails to object that the jury instructions 

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constructively amended the indictment, we review for plain error. 

United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013).

When reviewing a jury instruction for plain error, we will 

reverse only when the error is so fundamental that it results in a 

miscarriage of justice. Gutierrez, 745 F.3d at 471. The instruction 

must be an incorrect statement of law that was “probably responsible for an incorrect verdict, leading to substantial injustice.” 

Whyte, 928 F.3d at 1332. Finally, when reviewing an alleged constructive amendment, the court’s instructions should be viewed in 

context. United States v. Castro, 89 F.3d 1443, 1453 (11th Cir. 1996).

Here, because Hyde did not object at trial to the jury instructions on the basis that they constructively amended the indictment, 

we review for plain error. Whyte, 928 F.3d at 1331; Madden, 733 

F.3d at 1322. At trial, the government had to show that Hyde either 

used or carried a firearm during and in relation to a drug trafficking 

crime or possessed a firearm in furtherance of a drug trafficking 

crime. 18 U.S.C. § 924(c)(1)(A). Hyde takes issue with the brandishing element, but the record shows that the government sufficiently 

proved this element, which can be a separate element of either 

method of a § 924 charge. We conclude that any error in the jury 

instruction relating to the wording of the charge was not so fundamental that it resulted in a miscarriage of justice. See Gutierrez, 745 

F.3d at 471. Thus, we affirm as to this issue.

IV.

We generally review de novo a sufficiency of the evidence 

challenge, asking whether a reasonable jury could have found the 

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defendant guilty beyond a reasonable doubt. United States v. House, 

684 F.3d 1173, 1196 (11th Cir. 2012). However, if the defendant did 

not move for a judgment of acquittal, or otherwise preserve a sufficiency of the evidence challenge below, we will only set aside his 

conviction if we find a manifest miscarriage of justice, which exists 

if the evidence on a key element of the offense is so tenuous that a 

conviction would be shocking. Id. Further, we will not upset a 

jury’s decision to credit a witness’s testimony unless in the rare circumstance that the testimony is incredible as a matter of law. 

United States v. Isaacson, 752 F.3d 1291, 1304 (11th Cir. 2014) (noting 

that testimony “is incredible if it concerns facts that the witness 

physically could not have possibly observed or events that could 

not have occurred under the laws of nature”) (quotation marks 

omitted). Yet, “when a defendant chooses to testify, he runs the 

risk that if disbelieved the jury might conclude the opposite of his 

testimony is true.” United States v. Brown, 53 F.3d 312, 314 (11th 

Cir. 1995) (quotation marks omitted).

To obtain a conviction under the “in furtherance of” element requires proof that the firearm “helped, furthered, promoted, 

or advanced the drug trafficking.” United States v. Timmons, 283 

F.3d 1246, 1252 (11th Cir. 2002). There must be some nexus between the firearm and the drug-selling operation. Id. at 1253. Factors that we consider include whether the gun is accessible, loaded,

close in proximity to drugs, and the circumstances surrounding the 

gun’s discovery. Id.

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Here, Hyde does not dispute that he possessed a gun or sold 

drugs, thus the government need only to have proved that Hyde 

brandished his gun to further his drug crimes. 18 U.S.C. 

§ 924(c)(1)(A). The record shows that when the officers arrived at 

Hyde’s home, there were numerous weapons in the room where 

Hyde kept the drugs. The handgun Hyde possessed, along with 

another loaded semiautomatic pistol, two loaded magazines, spare 

pistol parts, ammunition, and a bulletproof vest, was in the same 

bedroom as 30 bags of methamphetamine, 4 bags of marijuana, and 

a digital scale. This evidence, along with Hyde’s testimony, was 

sufficient for a jury to determine that Hyde brandished a firearm in 

furtherance of his drug trafficking scheme and was not tenuous 

enough to make his conviction shocking. See House, 684 F.3d at 

1196. Thus, we affirm as to this issue. 

V.

To preserve an issue for appeal, a defendant “must raise an 

objection that is sufficient to apprise the trial court and the opposing party of the particular grounds upon which appellate relief will 

later be sought.” United States v. Straub, 508 F.3d 1003, 1011 (11th 

Cir. 2007) (quotation marks omitted). However, “once a party has 

preserved an issue, it ‘may make any argument in support of that 

claim; parties are not limited to the precise arguments they made 

below.’” United States v. Brown, 934 F.3d 1278, 1306-07 (11th Cir. 

2019) (quoting Yee v. City of Escondido, 503 U.S. 519, 534, 112 S. Ct. 

1522, 1532 (1992)). 

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Error that is plain must be “clear under current law” for this 

court to correct it. United States v. Olano, 507 U.S. 725, 734, 113 S. 

Ct. 1770, 1777 (1993). “Clear under current law” means that “at 

least where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is 

no precedent from the Supreme Court or this Court directly resolving it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) 

(quotation marks omitted). Further, we do not assign “precedential significance” to grants of certiorari by the Supreme Court. See 

Thompson v. United States, 924 F.3d 1153, 1156 n.4 (11th Cir. 2019). 

Until the Supreme Court issues a decision that changes the law, we 

must follow binding precedent. Id.

Federal law binds the construction of the Armed Career 

Criminal Act (“ACCA”), and state law governs the analysis of the 

elements of state-law crimes. United States v. Braun, 801 F.3d 1301, 

1303 (11th Cir. 2015). In United States v. Jackson, we held that the 

federal controlled-substances schedules, in effect at the time of a 

previous state conviction, govern whether a conviction qualifies as 

an ACCA predicate. 55 F.4th 846, 856 (11th Cir. 2022).

Here, as an initial matter, we review the district court’s finding on this issue for plain error because Hyde’s objection that his 

cocaine charge was dismissed “because of entrapment” did not sufficiently put the trial court, and the government, on notice that he 

would later appeal his sentence under Jackson. See Straub, 508 F.3d 

at 1011. The record demonstrates that Hyde cannot show that the 

district court plainly erred because he has cited no binding 

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precedent holding that his 2003 Florida cocaine conviction does not 

qualify as an ACCA predicate offense. Instead, Hyde argues that, 

if the Supreme Court overrules Jackson, his 2003 Florida cocaine 

conviction would no longer serve as an ACCA predicate offense. 

Although the outcome of the Supreme Court’s decision might 

change our analysis in our earlier panel decision in Jackson, a grant 

of certiorari has no precedential value on this case before us. See 

Thompson, 924 F.3d at 1156 n.4. Thus, we conclude the district 

court did not plainly err in determining that Hyde’s 2003 Florida 

conviction qualifies as an ACCA predicate offense. Accordingly, 

we affirm as to this issue.

VI.

Facts that increase mandatory minimum sentences must be 

submitted to a jury and proven beyond a reasonable doubt. Alleyne 

v. United States, 570 U.S. 99, 103, 133 S. Ct. 2151, 2155 (2013). But 

the fact of a prior conviction is not an “element” of the crime that 

must be submitted to the jury. Almendarez-Torres v. United States, 

523 U.S. 224, 243-47, 118 S. Ct. 1219, 1230-33 (1998); see Alleyne, 570 

U.S. at 111 n.1, 2159-60 n.1 (declining to revisit Almendarez-Torres). 

In Almendarez-Torres, the Supreme Court held that the government 

need not prove beyond a reasonable doubt that a defendant had 

prior convictions, or allege those prior convictions in the indictment, to use those convictions to enhance a defendant’s sentence. 

523 U.S. at 243-47, 118 S. Ct. at 1230-33.

As he concedes, Hyde’s argument is foreclosed by Almendarez-Torres. We are bound to follow Almendarez-Torres until it 

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is overturned by the Supreme Court or this court sitting en banc. 

See Archer, 531 F.3d at 1352. Thus, the district court was entitled to 

apply the ACCA enhancement to Hyde’s sentence based on his 

prior convictions. See Almendarez-Torres, 523 U.S. at 226-27.

Based on the aforementioned reasons, we affirm Hyde’s 

convictions and sentence.

AFFIRMED.

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