[ DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______ _________________ No. 13

- 15874

________________________ D.C. Docket No. 1:13

- cr - 20334

- CMA

- 2 UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus
JOSEPH PETER CLARKE, BOBBY JENKINS , Defendants

- Appellants.

_ _______________________ Appeal s from the United States District Court for the Southern District of Florida

________________________ ( March 17 , 2015) Before MART IN and DUBINA, Circuit Judges, and RODGERS, * District Judge.
PER CURIAM:

* Honorable Margaret C. Rodgers, Chief United States District Judge for the Northern District of Florida, sitting by designation.

Case: 13-15874 Date Filed: 03/17/2015 Page: 1 of 242 Joseph Peter Clarke and Bobby Jenkins appeal their convictions of conspiracy to commit Hobbs Act robbery , 18 U.S.C. § 1 951(a) (Count 1) ; conspiracy to possess with intent to distribute five or more kilograms of cocaine, 21 U.S.C. §§ 841(a)(1) , 846 (Count 2) ; possession of a firearm by a convicted felon, 18 U.S.C. § 922(g )( 1) (Counts 3 and 4, respectively) ; and using and carrying a firearm during and in relation to a crime of violence and possession of a firearm in furt herance of a crime of violence , specifically, the Hobbs Act robbery , id. § 924(c)(1)(A) (Count 5)

. The c ase concerns a reverse sting operation, in which the Defendants joined a fake conspiracy to rob a house of drug dealers. Clarke and Jenkins challenge a number of aspects of their trial, conviction, and sentence. After careful consideration, and with the benefit of oral argument, we affirm. 1
I. On May 10, 2013, a grand jury returned a five

- count indictment against Bobby Jenkins and Joseph Peter Clarke

. The detective who engineered the reverse sting which led to the indictment was Kenneth Veloz, who had e xperience with these sorts of “proactive investigations” of “individuals that are interested in committing [armed] robbery.” In this type of case , Detective Veloz typically proposed “an extre mely violent scenario” to give the target s the “chance . . . to

1 In a separate opinion, we address Jenkins’s argument that his prior guilty plea to possession of cocaine in Florida, where adjudication was withheld, does not qualify as a “conviction” for pu rposes of 18 U.S.C. § 922(g). We certified a question to the Florida Supreme Court, and retain jurisdiction over this appeal pending resolution of that issue

.

Case: 13-15874 Date Filed: 03/17/2015 Page: 2 of 243 walk away if they [were] not interested in committing [a] robbery.” Here, Detective Veloz first became interested in Jenkins when a confidential i nformant (CI) told him that Jenkins “may be interested in committing a robbery.” After a series of phone c alls in which Detective V eloz thought Jenkins seemed to be interested in participating in the robbery , Detective Veloz set up three
in

- person meetings in which he posed as a drug trafficker. In the first, Detective Veloz represented that he routinely pick ed up and delivered kilogram quantities of cocaine for a group of drug traffickers, and that they had failed to adequately pay him for work he had done. He told Jenkins he needed someone to help him rob the traffickers

. He said that they were violent dru g dealers who would kill Detective Veloz and his family if they found out that he stole the cocaine. Jenkins responded that he and his “people” could handle the job, saying they were “certified.” He also asked questions about the job, like what the deale rs were “capable of, what area they [worked] in, . . . what people[] they know,” and whether they “hav[e] guns in there.” Jenkins also said that he had “AR

- 15s that come from the army,” and that he would wear a bulletproof vest. Jenkins brought Clark

— a n acquaintance

— to the second meeting, and he, Clarke, Detective Veloz, and the CI continued to discuss the plan to rob the drug traffickers

. Detective Veloz emphasized that these were dangerous people who “don’t play” and stated that, personally, when it came to guns, “I’m running the

Case: 13-15874 Date Filed: 03/17/2015 Page: 3 of 244 other way.” Still Jenkins persisted in asking questions, including the location of the house, who the “head” of the traffickers was, and whether there would be cash
in the house along with the drugs

. Clarke noted that if th ere were only two drug dealers in the house when they robbed them, “it shouldn’t really be [an] issue as far as getting in and getting out.” Both Jenkins and Clarke asked Detective Veloz if he wanted the traffickers dead, and Veloz responded “you could do what you got to do.” Clarke suggested that he would need to kill them so that no one would know Detective Veloz was associated with them. And Clarke said he would need to “hit” Detective Veloz to make it look like Detective Veloz was not involved. In a follow

- up ph one call between the CI and Jenkins, Jenkins told the CI that he wanted the robbery “to get bloody regardless” because then the traffickers “can’t talk.” At the third and final meeting, the same group discussed detai ls of the robbery. Clarke repeatedly insisted that they be told the location in advance so they could plan their entry. Detective Veloz also told them there would be ten to fifteen kilograms of cocaine, and he and Clarke discussed spli tting the drugs “fifty/fifty.” Clarke noted that when he “move[s] [his] trigger, [he is] on precision,” and that Detective Veloz should “get out of the way” if shooting begins. In a phone call the day before the robbery, Jenkins told the CI that

Case: 13-15874 Date Filed: 03/17/2015 Page: 4 of 245 everything was “good,” but expressed concern th at Detective Veloz might be involved with the police. The CI assured him that “everything [was] straight.” On the day of the robbery, the government provided a car to the CI, who picked up Jenkins and Clarke and drove them to the robbery location. When they arrived, a team of ATF Detective s converged on the car. Jenkins had a .40 caliber Sig S auer handgun and was wearing gloves. Clarke dropped his loaded semiautomatic assault rifle in the back seat. Both Clarke and Jenkins went to trial, where two j uries were impaneled. Both were found guilty of all counts. Jenk ins was sentenced to 240 months imprisonment for Counts 1 and 2, a concurrent 120

- month sentence for Count 3, and a consecutive term of 60 months imprisonment for Count 5. Clarke was
senten ced to life imprisonment for Counts 1, 2, and 4, and a consecutive life term for Count 5. Both timely appealed on a number of grounds, and we address each issue in turn.
II. Jenkins preliminarily argues that five different errors at trial resulted in

cum ulative error, for which he should receive a new trial. The cumulative

- error doctrine provides that “an aggregation of non

- reversible errors” can result in the denial of the constitutional right to a fair trial warranting reversal. United States v. Baker , 432 F.3d 1189, 1224 (11th Cir. 2005) (quotation omitted)

. We ask whether

Case: 13-15874 Date Filed: 03/17/2015 Page: 5 of 246 the combined effect of the errors had a “substantial influence on the outcome by weighing the record as a whole, examining the facts, the trial context of the error, and the prejud ice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.” United States v. Hands , 184 F.3d 1322, 1329 (11th Cir. 1999) (internal quotation marks and citations omitted). First, Jenkins argues that Detective Veloz’s test imony “deliver[ed] a jury argument from the witness stand.” United States v. Cano , 289 F.3d 1354, 1363 (11th Cir. 2002). During trial, Detective Veloz testified repeatedly , over objection s, about the “sign ificance” of various things Jenkins said during t he recorded phone and in

- person meetings. See, e.g. , Trial Tr. 24, Oct. 8, 2013, ECF
No. 137 (Q: Now, what is the significance to your investigation of Mr. Jenkins making the statement, ‘Yeah, yeah, yeah, yeah, that’s the only reason I’m [expletive] with it?” A: Because it

— he has an interest . . . That he had an interest because the outcome is . . . he’s going to gain something.”) ; id. at 45

– 46 ( testifying that the phrase “certified” meant to Detective Veloz that Jenkins was “representing . . . that he is skilled to do this [crime]” and “has the intent to do this , the know

how, the ability to . . . commit this robbery” ); id. at 51 ( testifying that when Jenkins asked “ who we are dealing with, basically, like what they are capable of, what area they be in, w hat area they [expletive] with, [and] what people they know ,” Detective Veloz understood those statements to mean he “ want [s] to do

Case: 13-15874 Date Filed: 03/17/2015 Page: 6 of 247 intelligence, gather intelligence so that way they can plan on how to do this robbery ”). Jenkins argues that this testimony allowed Detective Veloz to make judgments on the stand about the significance of Jenkins’s statements that only the jury should have been allowed to make. We cannot agree. “[E]videntiary rulings will be disturbed on appeal only where there appears a cle ar abuse of discretion.” United States v. Taylor , 17 F.3d 333, 340 (11th Cir. 1994)

. Beyond that , “[a] trial judge has broad discretion in controlling the extent of direct and cross

- examination.” United States v. James , 510 F.2d 546, 551 (5th Cir. 1975). 2 We understand t he purpose of Detective Veloz’ s testimony explaining his impressions of Jenkins’s statements was to
counter Jenkins’s entrapment defense and explain to the jury why he proceeded with the reverse

- sting operation at each stage of the investigation

. In this regard , this Court has noted that “an experienced narcotics agent may testify about the significance of certain conduct or methods of operation unique to the drug distribution business.” United States v. Butler , 102 F.3d 1191, 1199 (11th Cir. 1997) (quotation omitted) . W e recognize the need for the government to explain Jenkins’s testimony to a jury that may not be familiar with the language used

2 In Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as bindin g precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209. Case: 13-15874 Date Filed: 03/17/2015 Page: 7 of 248 throughout the phone calls and meetings. The district court did not abuse its discret ion by allowing this testimony at trial. Relatedly, Jenkins argues that wh en Detective Veloz compared Jenkins’s actions to the actions of other s in reverse - sting operations based on Detective Veloz’s experience, he was improperly acting as an expert witness

. See, e.g. , Trial
Tr. 41

– 42 , Oct. 8, 2013, ECF No. 137 (noting that in most cases, when targets hear that people could die, “[t]hey usually say it right there, this is too much for me, or

. . . they won’t call back, they won’t return, they won’t want to meet”) ; id. at 46 (“Mr. Jenkins is representing this to me, based on my experience, is that he wants me to buy in that I should hire him to do this.”) . Not so. In United States v. Jayyousi , 657 F.3d 1085 (11th Cir. 2011), this Court held that a law enforcement agent involved in a terrorism investigation could draw inferences about the meaning of code words used during recorded conversations and relay those inferences to the jury. Unlike a case where an agent merely testified “ about the meaning of a simple code that the jury could have deciphered easily based on evidence admitted at trial,” in Jayyousi , the agent’s “familiarity with the investigation allowed him to perceive the meaning of coded language that the jury could not h ave readily discerned.” Id. at 1103. This Court allowed the agent’s testimony even though the district court admitted that “it appears as if this witness’s training and experience to opine on what certain things mean is the

Case: 13-15874 Date Filed: 03/17/2015 Page: 8 of 249 investigation of this case.” Id. at 1104 (quotation marks omitted)

. So too here

. Detective Veloz was permitted to testify about the particular words Jenkins used based on his experience, and it was not an abuse of discretion for the district c ourt to allow him to do so. Second , Jen kins argues that it was improper for the district c ourt to allow the prosecutor to ask a series of questions to Detective Veloz about whether certain things the CI told him about Jenkins “w[ere] true.” T he CI initially told Detective Veloz that Jenkins “may be interested in committing a robbery.” According to Jenkins, questioning Detective Veloz about whether this statement was true violated the rule that “it is improper to ask a testifying [witness] whether another witness is lying” since such questions “invade the province of the jury.” United States v. Schmitz , 634 F.3d 1247 , 1268 (11th Cir. 2011). We recognize that such a rule exists. But here, read in context, it is clear that the prosecutor was not asking Detective Veloz whether the CI’s testimony was credible. Rather, the prosecutor ’s
purpose was to have Detective Veloz confirm Jenkins’s interest in committing the crime based on having listened to the recorded conversations between Jenkins and the CI, not just the CI’s statements at the start of the investigation . This, again,

Case: 13-15874 Date Filed: 03/17/2015 Page: 9 of 2410 was a justifiable attempt to counter Jenkins’s entrapment defense. We cannot say that the district court abused its discretion in allowing this testimony. 3
Jenkins points to three additional errors . He argues that the district c ourt abused its discretion by allowing evidence of his prior conviction for cocaine possession under Federal Rule of Evidence 404(b). He next argues that the district court committed plain error under Rule 404(b) by allowing his NCIC cr iminal report to be brought into evidence. 4 Finally, he argues that the district court abused its discretion when it allowed the prosecutor to admit expert

- witness testimony suggesting he malingered on a disability evaluation in order to gain Social Secur ity benefits. We do not address the merits of these three arguments because even if Jenkins can show error, the cumulative error was harmless. 5 Under the

3 In fact, because Jenkins did not object to that question at trial, his argumen t on appeal is subject to plain

- error review. We see no plain error tha t affected his substantial rights here. See United States v. Olano , 507 U.S. 725, 731

– 32, 113 S. Ct. 1770, 1776 (1993). 4 The government argues that the invited

- error doctrine bars this argument because Jenkins had “no problem” and “no objection” to the g overnment’s introduction of the report. But although Jenkins did not object, he also did not solicit the evidence. The invited

- error doctrine applies only when the party challenging the introduction of the evidence affirmatively asked for it, not when th e party merely fails to object to its introduction. When a party fails to object, the appellate court reviews the challenged evidence for plain error. See United States v. Jones , 743 F.3d 826, 828 n.1 (11th Cir. 2014) (noting that the invited

- error doctrine “does not apply” where the error is “not attributable to the action of the defense” because the defendant “ failed to object to the e rror, but he did not ask for it” (quotation omitted) ). 5 We note, however, that d espite the fact that any error was harmless, Jenkins’s argument that the district court wrongfully allowed evidence of his prior conviction for cocaine possessio n is compelling. Under Rule 403 (b), “the probative value of . . . evidence must not be substan tially outweighed by its undue prejudice.” United States v. Matthews , 431 F.3d 1296, 1310

– 11 (11th Cir. 2005) (per curiam) (quotation marks omitted). Admittedly, we have said that “ a not guilty plea in a drug conspiracy cas e . . . makes intent a material issue and opens the door to admission

Case: 13-15874 Date Filed: 03/17/2015 Page: 10 of 2411 cumulative

- error doctrine, reversal is warranted only if the combined effect of the errors had a “su bstantial influence on the outcome.” Hands , 184 F.3d at 1329 (internal quotation marks and citations omitted). Looking to the record as a whole and examining all the facts, the recorded phone calls and in

- person meetings are difficult for Jenkins to over come on harmless

- error review . T hroughout those recordings, Jenkins discussed details of the proposed crime, never backed out even when they talked about killing the traffickers , and suggested that he wanted the robbery to be “bloody.” Beyond that, the f act that he arrived at the location of the proposed crime with a firearm in hand is powerful evidence that a jury would have found persuasive beyond a reasonable doubt . In short, these purported trial errors, even taken together , are harmless . We cannot reverse Jenkins’s convictions on this basis.
III. Clarke argues , in the same way, that the district c ourt abused its discretion by admitting evidence of his 2006 burglary conviction. He says that the conviction

of prior drug

- related offenses as highly probative, and not overly preju dicial, evidence of a defendant’s intent.” United States v. Calderon , 127 F .3d 1314, 1332 (11th Cir. 1997). For instance, we have held that “ a three

- year - old prior conviction for possession of cocaine for personal use was relevant and admissible for purp oses of demonstrating defendant’ s intent in the charged conspiracy for possession with intent to d istribute.” Matthews , 431 F.3d at 131 1 (citing United States v. Butler , 102 F.3d 1191, 1195

– 96 (11th Cir. 1997)) . However, this is not a drug

conspiracy case. This is a conspiracy to commit a violent, armed robbery of a house of drug dealers. The fact that Jenkins was arrested for possession with intent to distribute, which resulted in his guilty plea for simple possession of cocaine, seems unlikely to be probative of whether he would have committed this robbery crime. Still, we must affirm because any err or was harmless. Case: 13-15874 Date Filed: 03/17/2015 Page: 11 of 2412 was not probative of his intent to commit the robbery, the conviction occurred seven years ago, and the government did not need the evidence because it had audio and video recordings of the offense

. Clarke makes a colorable argument that this 2006 burglar y of an electronics store is so different and so remote in time from the attempted a rmed robbery of a house of drug traffickers that the district court may have erred in admitting it . However, “[w]e review preserved evidentiary objections for harmless err or.” Baker , 432 F.3d at 1202. As with Jenkins, there is overwhelming evidence of Clarke’s guilt. He was recorded during numerous phone calls and in

- perso n meetings planning the robbery; he described his plans to shoot and kill the occupant s of the house if they resisted; and he arrived at the scene with gloves and a firearm on the appointed date. W e cannot reverse because this prior conviction was admitted

. IV

. Next, Jenk ins argues that the g overnment engaged in sentencing

- factor manipulation by s elect ing a quantity of cocaine

— ten to fifteen kilograms

— sufficient to trigger a ten

- year mandatory

- minimum sentence. This Court has “considered sentencing manipulation as a viable defense.” United States v. Ciszkowski , 492 F.3d 1264, 1270 (11th Cir. 2007). “ [S]entencing factor manipulation occurs when the government’s manipulation of a sting operation, even if insufficient to support a due process claim, requires that the manipulation

Case: 13-15874 Date Filed: 03/17/2015 Page: 12 of 2413 be filtered out of the sentencing calculus.” Id. The bar is “high”: we ha ve generally noted that “[g]overnment

- created reverse sting operations are recognized and useful methods of law enforcement investigation.” Id. at 1271. Thus, to find sentencing factor manipulation, we must find that the government’s conduct was, as we h ave put it, “so objectionable” or “sufficiently reprehensible” or “extraordinary misconduct.” Id. at 1270

– 71. We cannot say that the government’s conduct in this case met that high bar.
In U nited States v. Sanchez , 138 F .3d 1410 (11th Cir. 1998), the [d]efendants argue[d] that the conduct of the government in creating a fictitious crime for them to commit

— robbery of a non - existent house allegedly stocked with large quantities of cocaine and marijuana, which did not in fact exist

— was so outrageous as to warran t either dismissal of the supers eding indictment, or reversal of their convictions, or a downward departure of their sentences. Id. at 1413. R egarding the sentencing

- factor

- manipulation claim in Sanchez , this Court held that “[t]he fact that the government’s fictitious reverse sting operation involved a large quantity of drugs does not amount to the type of manipulative governmental conduct warranting a downward departure in sentencing.” Id. at 1414. So too here. Detective Veloz testified that the ten

- to fifteen

- kilogram amount was simply “realistic[].” Trial Tr. 50

– 51 , Oct. 8, 2013, ECF No. 137 (“Q: Why not pose 35 kilos? A: Well, realistically, nowadays home invasions that I have investigated and that

— t hat my unit has been involved in, that quantity amount is not as prevalent as it was b ack, you know, in the ‘80s.”).

Case: 13-15874 Date Filed: 03/17/2015 Page: 13 of 2414 Jenkins argues that Sanchez is distinguishable because in that case , “[t]he availability of defendants, their weapons, and vehicles was not the result of any governmental activity.” Id. at 1414. By contrast, the government here provided Jenkins and Clarke with a car in order to commit the crime. However, our precedent makes clear that this fact is not dispositive. See Ciszkowski , 492 F.3d at 1271 (“The fact that law enforcement may provide drugs or guns essential to a willing and predisposed offender does not necessarily constitute misconduct.”).
We have certainly taken note that the government went to great lengths to
construc t a violent plan here . T his is especially striking in light of the fact that before this incident, Jenkins had never engaged in anything like the violent armed robbery that he attempted here. However, all Jenkins is challenging on appeal is the governmen t’s decision to quantify the amount of cocaine at ten to fifteen kilograms instead of, say, two kilograms. We cannot agree that this amount is a particularly “objectio nable” or “extraordinary” quantity of cocaine. The district court did not err . V. Next, both Jenkins and Clarke argue that the jury instructions constructively amended the indictment on Count 5, the count for using and carrying a firearm during and in relation to a crime of violence and possession of a firearm in furt herance of a crime of vi olence. “[A] court cannot permit a defendant to be

Case: 13-15874 Date Filed: 03/17/2015 Page: 14 of 2415 tried on charges that are not made in the indictment against him.” Stirone v. United States , 361 U.S. 212, 217, 80 S. Ct. 270, 2 73 (1960). Under this rule, a district c ourt may not constructively amend the indictment. See i d. at 215

– 16, 80 S. Ct. at 272. A constructive amendment “occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Kell er , 916 F.2d 628, 634 (11th Cir. 1990). Here, although Jenkins and Clarke were convicted of knowingly using and carrying a firearm during and in relation to a crime of violence, and knowingly possessing that firearm in furtheran ce of a crime of violence, t he district c ourt’s definition of “possession” in the jury instructions repeatedly referred to a “drug trafficking” crime. 6 At first, the c ourt correctly said that “it is a separate federal crime for anyone to use, carry, possess[] or brandish a firearm i n furtherance of a crime of violence.” However, the district c ourt then went on to say that “[t]o ‘possess’ a firearm is to have a firearm on one’s person or to transport or control a firearm in a way that makes it available for immediate use while commit ting the drug

- trafficking crime ” ( emphasis added)

. The Court continued that “[s]ome factors to consider are the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen,

6 A drug

- trafficking offense is not a “crime of violence” for purposes of Section 924(c). See United States v. Cruz , 805 F.2d 1464, 1474 (11th Cir. 1986).

Case: 13-15874 Date Filed: 03/17/2015 Page: 15 of 2416 the status o f the possession (legitimate or illegal), whether the gun is loaded, [and] proximity to the drugs ” (emphasis added)

. In short, the jury instructions referred to a “drug

- trafficking crime” when they should have referred to a “crime of violence.” The gover nment admits in its brief that “[an] error occurred.” However, neither Clarke nor Jenkins objected to the jury instructions at trial. [ W]e may only reverse a defendant’s conviction based on an unobjected

- to constructive amendment if the constructive am endment satisfies the Olano 7 plain

- error standard. That is, the amendment must (1) be an error (2) that is plain (3) that affects the defendant’s substantial rights and (4) that seriously affects the fairness, integrity, or public reputation of judicial p roceedings. United States v. Madden , 733 F.3d 1314, 1321 (11th Cir. 2013). In Madden , we held that a district c ourt’s constructive amendment of the indictment met the plain

error standard for reversal. There, while the indictment stated that the defend ant “did knowing ly use and carry a firearm during and in relation to a crime of violence and did knowingly possess a firearm in furtherance of a drug trafficking crime,” the jury instructions stated that “[t]he superseding indictment alleges that the defen dant knowingly carried a firearm during and in relation to a drug trafficking offense or possessed a firearm in furtherance of a drug trafficking offense.” Id. at 1318 (emphasis added). In other words, the instructions allowed for a conviction of carrying a firearm during and in relation to a drug trafficking offense , but the indictment charged the defendant with possessing a firearm only in

7 Olano , 507 U.S. 725, 113 S. Ct. 1770. Case: 13-15874 Date Filed: 03/17/2015 Page: 16 of 2417 furtherance of a dr ug trafficking offense. We noted in that case that “adding ‘during and in relation to’ broadened the possible bases for conviction beyond what was specified in the superseding indictment,” because “‘in furtherance of’ is narrower than ‘during and in relat ion to.’” Id. We held that this constructive amendment met Olano ’s plain

- error standard. First, there was error because “constructively amending an indictment is a departure from the legal rule that a defendant can only be convicted for a crime charged in the indictment.” Id. at 1322 (quotation omitted) . Second, the error was plain because “[i]t [ was ] clear that ‘in furtherance of’ and ‘during and in relation to’ are alternative me thods of conviction[,] [a]nd it [was] clear under current law that a cou rt errs when it allows for an alternative method of conviction that is not included in the indictment.” Id. (citation omitted). Third, the error affected Madden’s substantial rights because “ Madden may well have been convicted on a charge not in the indi ctment. In the end, . . . we [could not] say with ce rtainty that with the constructive amendment, Madden was convicted solely on the charge made in the indictment.” Id. at 1323 (quotation omitted) . Fourth, “we f[ou]nd it self

- evident

. . . that the erro r seriously affect[ed] the fairness, integrity and public reputation of judicial proceedings.” Id. Although it is a close case, the jury

- instruction error here is sufficiently different from the one in Madden that we cannot say that it affected Jenkins’s and

Case: 13-15874 Date Filed: 03/17/2015 Page: 17 of 2418 Clarke’s substantial rights. For one thing, the instructions clearly and correctly set forth the elements of the offense before erroneously referring to “drug trafficking” when defining the term “possess.” Beyond that, because the government repeate dly argued during its closing that the crime of violence at issue was “narcotics

- related robberies” and that “robbery is violent,” we find it certain that the jury would have understood that firearms were possess ed with respect to the robbery. Finally, unlike in Madden , where the amendment encompassed a broader range of conduct than what was charged in the indictment , no new element was added here. And while there actually was a drug

- trafficking crime charged in Madden , and the jury could therefore have reasonably been confused, there was no drug

- trafficking crime at issue here. The only offense during which Jenkins and Clarke could have possibly used a firearm was the Hobbs Act robbery. T he jury could not have convicted Jenkins and Clarke for using an d carrying a firearm during and in relation to a drug

- trafficking crime when no drug

- trafficking crime was ever mentioned before the misstatements in the jury instructions. Thus, we cannot say that the error affected their substantial rights, and we find no plain

error. V I

. Next, Jenkins argues that his Sixth Amendment rights were violated when the prosecutor refused t o withdraw a Section 851 notice of enhancement after he

Case: 13-15874 Date Filed: 03/17/2015 Page: 18 of 2419 declined to enter a guilty plea. At a status conference before trial, the prosecut or said that “[t]he gove rnment has told [ Jenkins’s lawyer] that it would be willing to withdraw the information based on what he has put forward. . . . [A]fter that plea expiration deadline, the government would not do that.” “[W]hat he has put forward” i s, we assume , the Social Security documents that suggest that Jenkins is “mildly, mentally retarded,” as discussed earlier in that status conference. Jenkins argues that because the prosecutor suggested he was willing to withdraw the enhancement based on what Jenkins had put forward, the government conceded that the twenty

- year mandatory

- minimum sentence was not warranted in light of his disability, but applied it anyway because he refused to plead guilty. Jenkins’s argument is precluded by precedent of the Supreme Court and this
Court. In Bordenkircher v. Hayes , 434 U.S. 357, 98 S. Ct. 663 (1978), the Supreme Court addressed “whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosec utor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.” Id. at 358, 98 S. Ct. at 665. The Court held that “ so long as the pr osecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Id. at 364, 98 S. Ct. at 668. In United

Case: 13-15874 Date Filed: 03/17/2015 Page: 19 of 2420 States v. Darby , 744 F.2d 1508 (11th Cir. 1984), we applied the Bordenkircher rule
to a case in which “the government expressed its intent to seek sentence enhancement under section 849 and offered to forego prosecution as a dange rous special drug offender if [the Defendant] would plead guilty as charged.” Id. at 1539. The Defendant refused the offer, was sentenced under Section 849, and challenged the sentence enhancement as a “vindictive effort to penalize his exercising his ri ght to trial by jury.” Id. This Court said that “case [was] indistinguishable from Bordenkircher . [The Defendant] was fully informed of the terms of the plea offer and simply declined to accept. Accordingly, we f[ou]nd no support for his claim of prose cutorial vindictiveness.” Id. (footnote omitted). We are bound by our ruling in Darby . Although it is certainly true that the prosecutor con sidered wi thdrawing the section 851 notice during plea negotiations, he was fully within his rights under the law to apply the enhancement. That he used the application of the enhancement to try to convince Jenkins to plead guilty is no different from the facts in Darby . Jenkins has therefore failed to make out a claim of prosecutorial vindictiveness in violation o f his Sixth

- Amendment rights.
VI I

. Jenkins next argues that his prior Florida arrest, for which adjudication was withheld and he received a suspended sentence, should not qualify as a prior

Case: 13-15874 Date Filed: 03/17/2015 Page: 20 of 2421 conviction under 21 U.S. C. §§ 841 and 851. 8 He argues that we should follow the definition of “conviction” used in the Immigration and Nationality Act (INA). He notes that immigration law and criminal law both fall within the federal scheme, and since “[t]he general analytical framework and principles . . . are analogous,” we “routinely import[] holdings from one context to the other.” Donawa v. U.S. Att’y Gen. , 735 F.3d 1275, 1280 n.3 (11th Cir. 2013). The INA definition says that a “conviction” includes a situation where an “adjudication of guilt h as been withheld” if “ a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted facts to warrant a finding of guilt and the judge has ordered some form of punishment, penalty, or restraint on th e alien’s liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A) (emphasis added) . Here, the adjudication was withheld and no form of punishment was imposed

— the sentence was suspended. Because Jenkins did not raise this argument in the district cour t, it is subject to plain

- error review. An error is plain only if precedent of this Court or the Supreme Court or the unequivocal language of a statute establishes that the decision was erroneous. United States v. Johnson , 694 F.3d 1192, 1195 (11th Cir.

8 T his question is different from the one Jen kins raises with regard to his s ection 922(g) charge . For s ection 922(g), we look to w hether Florida state law treats the prior arrest as a “conviction” for Florida’s felon

- in

- possession law. Here, we look to federal law. See United States v. Mejias , 47 F.3d 401, 403

– 04 (11th Cir. 1995) (per curiam) (“[F] ed eral law, rather than state law, governs the interpretation of section 841(b)(1)(B) .”).

Case: 13-15874 Date Filed: 03/17/2015 Page: 21 of 2422 2012). T here is no precedent of this Court or the Supreme Court that clearly holds that the district court’s acceptance of the Section 851 enhancement was erroneous. In fact, there is precedent suggesting the opposite. In Mejias , we held that “Mejias’ prior plea of nolo contendere with adjudication withheld in Florida state court is a ‘conviction’ that supports an enhanced sentence under section 841(b)(1)(B).” 47 F.3d at 404. And in United States v. Fernandez , 234 F.3d 1345 (11th Cir. 2000) (per curiam) , we rea ffirmed that “a prior state court nolo plea in which adjudication was withheld can be used as a conviction to make the defendant eligible for career

- offender status under the Sentencing Guidelines. ” Id.
at 1347. We recognize that Jenkins is not merely ar guing that he had his adjudication withheld; he is also arguing that he received a suspended sentence . The defendant
in Mejias was sentenced to probation, and so it could be argued that he received “some form of punishment, penalty, or r estraint on the alien’s liberty ” under the
INA. 8 U.S.C. § 1101(a)(48)(A)(ii); see also Appellant’s Initial Br. , Mejias , No. 91

- 4020, 1994 WL 16056228 , at *8 (noting that “adjudication [was] withheld pending successful completion of probation, and probation [was] success fully completed”); Fernandez , 58 F.3d at 600 (holding “that a state offense in which the defendant pleads nolo contendere and adjudication is withheld pending completion of probation constitutes a ‘prior conviction’ for purposes of the enhancement

Case: 13-15874 Date Filed: 03/17/2015 Page: 22 of 2423 provisio n of 21 U .S.C. § 841” (emphasis added)). However, this distinction between the present case and Mejias is not enough to overcome plain

- error review. Because there is no controlling precedent on point , w e cannot say that the district court plainly erred i n holding that Jenkins’s state felony was a conviction even if adjudication was withheld and he was not punished or penalized in any way

. VII I

. Jenkins next argues that his conviction under the Hobbs Act and Section 924(c) are unconstitutional after the S upreme Court’s recent decision upholding the Affordable Care Act in National Federation of Independent Business v. Sebe lius , 567 U.S. ___, 132 S. Ct. 2566 (2012) ( NFIB )

. A lthough constitutional issues are generally reviewed de novo , we review them only for plain error when a defendant fails to raise th em before the district c ourt. United States v. Underwood , 446 F.3d 1340, 1344 (11th Cir. 2006). Jenkins admits that in United States v. Taylor , 480 F.3d 1025 (11th Cir. 2007), we held that “[t]he intersta te nexus” can be shown in a Hobbs Act conspiracy even when the “intended victims and narcotics [are] fictional.” Id. at 1027. But he argues that decision “has since been called into question” by NFIB . There, the Court held that the Affordable Care Act

c o uld not be sustained under the commerce p ower because “[t]he power to regulate commerce presupposes the existence of commercial activity to be regulated.”
NFIB , 132 S. Ct. at 2586 (emphasis omitted) . However, although NFIB did

Case: 13-15874 Date Filed: 03/17/2015 Page: 23 of 2424 address the Commerce Claus e generally , the Supreme Court gave no indication that it was overruling the numerous circuit

- court opinions upho lding the Hobbs Act
on Commerce

- Clause grounds. This Court is bound to follow its prior precedent unless it is overruled by the Court sitting en banc or by the Supreme Court. United States v. Martinez , 606 F.3d 1303, 1305 (11th Cir. 2010). We cannot say the district court committed plain error by failing to find that the Supreme Court has implicitly overruled our prior precedent.

IX. Finally, Jenkins argues that the district court lacked the authority to enhance his sentence based on his prior conviction because that prior conviction was neither alleged in the indictment nor proven to the jury. This argument is foreclosed by binding p recedent of the Supreme Court. See Almendarez

- Torres v. United States , 523 U.S. 224, 235, 118 S. Ct. 1219, 1226 (1998).
X. For all these reasons, we affirm on each of the issues discussed here

. We retain jurisdiction over this appeal pending resolutio n of the question we have certified to the Florida Supreme Court

. See supra n.2

. AFFIRMED. Case: 13-15874 Date Filed: 03/17/2015 Page: 24 of 24