[DO NOT PUBLISH]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

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

JOSEPH PETER CLARKE,

BOBBY JENKINS,

 Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 11, 2016)

ON PETITION FOR REHEARING

Before MARTIN 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.

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We vacate our prior opinion in this case, issued March 17, 2015, and replace 

it with the following opinion.

Joseph Peter Clarke and Bobby Jenkins appeal their convictions of 

conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(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 furtherance of a crime of violence, specifically, the Hobbs Act robbery, id.

§ 924(c)(1)(A) (Count 5). The case 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

 

1 We address in a separate opinion Jenkins’s conviction under 18 U.S.C. § 922(g)(1)

(Count 3), which makes it a federal offense for a person convicted of a felony to possess a 

firearm. The government argued that Jenkins was a convicted felon because he had earlier 

pleaded guilty to possession of cocaine in Florida. Although Jenkins was found guilty of cocaine 

possession, adjudication of that offense was withheld. Whether a conviction qualifies under § 

922(g)(1) is “determined in accordance with the law of the jurisdiction in which the proceedings 

were held.” 18 U.S.C. § 921(a)(20). We therefore certified to the Florida Supreme Court the 

question of whether that State treats a guilty plea with adjudication withheld as a “conviction” 

for purposes of its felon-in-possession statute. Because the Florida Supreme Court answered this 

question “in the negative,” Clarke v. United States, 184 So. 3d 1107, 1108 (Fla. 2016), we have 

vacated Jenkins’s § 922(g)(1) conviction.

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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 experience 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 extremely violent scenario” to give the targets the “chance . . . to 

walk away if they [were] not interested in committing [a] robbery.” Here, 

Detective Veloz first became interested in Jenkins when a confidential informant 

(CI) told him that Jenkins “may be interested in committing a robbery.” 

After a series of phone calls in which Detective Veloz 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 picked 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 drug 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 dealers were “capable of, what 

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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 Clarke—an 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 

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 there 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 phone 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.” 

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At the third and final meeting, the same group discussed details 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 splitting 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 

everything was “good,” but expressed concern that 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 Detectives converged on the car. Jenkins had a .40 caliber 

Sig Sauer 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 juries were impaneled. 

Both were found guilty of all counts. Jenkins 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 

sentenced to life imprisonment for Counts 1, 2, and 4, and a consecutive life term 

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for Count 5. Both timely appealed on a number of grounds, and we address each 

issue in turn.

II.

Jenkins argues that six different errors at trial resulted in cumulative 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 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 prejudice 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 testimony “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 

objections, about the “significance” of various things Jenkins said during the 

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 

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[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 knowhow, 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, what area they [expletive] with, [and] what people they 

know,” Detective Veloz understood those statements to mean he “want[s] to do 

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 clear 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 the purpose of Detective

Veloz’s testimony explaining his impressions of Jenkins’s statements was to 

 

2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as 

binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. 

Id. at 1209.

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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). We recognize the need for the government to explain 

Jenkins’s testimony to a jury that may not be familiar with the language used 

throughout the phone calls and meetings. The district court did not abuse its

discretion by allowing this testimony at trial.

Relatedly, Jenkins argues that when Detective Veloz compared Jenkins’s

actions to the actions of others 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 

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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 have 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 

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 court 

to allow him to do so.

Second, Jenkins argues that it was improper for the district court 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.” The 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 

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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, 

was a justifiable attempt to counter Jenkins’s entrapment defense. We cannot say 

that the district court abused its discretion in allowing this testimony. In fact, 

because Jenkins did not object to that question at trial, his argument on appeal is 

subject to plain-error review. We see no plain error that affected his substantial 

rights here. See United States v. Olano, 507 U.S. 725, 731–32, 113 S. Ct. 1770, 

1776 (1993).

Jenkins points to four additional errors. He argues that he suffered 

“spillover prejudice” from being erroneously characterized as a convicted felon.3

 

He also argues that the district court abused its discretion by allowing evidence of 

 3 As described above, we have vacated Jenkins’s § 922(g)(1) conviction because the 

Florida Supreme Court has told us that his guilty plea with adjudication withheld is not a 

“conviction” for purposes of Florida’s felon-in-possession statute. Clarke, 184 So. 3d at 1108. 

In light of the Florida Supreme Court’s response to our certified question, it’s clear that it was 

error to call Jenkins a felon. However, “[vacatur] of some counts . . . does not automatically 

warrant reversal of convictions reached on remaining counts” on the basis of spillover prejudice. 

United States v. Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000). Rather, reversible spillover 

prejudice occurs only when “there [was] evidence (1) that would not have been admitted but for 

the [vacated counts] and (2) that [evidence] was improperly relied on by the jury in their 

consideration of the remaining [counts].” Id. Part of determining whether the jury improperly 

relied on evidence concerning a vacated count is “assess[ing] the strength of the evidence against 

the defendant on the remaining counts.” Id. at 1346. Because this inquiry dovetails with the 

harmless-error review we apply to Jenkins’s overall cumulative-error claim, we do not address it 

here. 

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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 criminal 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 Security benefits. We do not address the merits of these four

arguments because even if Jenkins can show error, the cumulative error was 

harmless.5

 Under the cumulative-error doctrine, reversal is warranted only if the 

 4 The government argues that the invited-error doctrine bars this argument because 

Jenkins had “no problem” and “no objection” to the government’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 the 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 error, but he did not ask for it” (quotation omitted)). 

5 We note, however, that despite the fact that any error was harmless, Jenkins’s argument 

that the district court wrongfully allowed evidence of his prior conviction for cocaine possession 

is compelling. Under Rule 403(b), “the probative value of . . . evidence must not be substantially 

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 case . . . makes intent a material issue and opens the door to admission 

of prior drug-related offenses as highly probative, and not overly prejudicial, 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 purposes of demonstrating defendant’s intent in the 

charged conspiracy for possession with intent to distribute.” Matthews, 431 F.3d at 1311 (citing 

United States v. Butler, 102 F.3d 1191, 1195–96 (11th Cir. 1997)). However, this is not a drugconspiracy 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 error 

was harmless.

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combined effect of the errors had a “substantial 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 inperson meetings are difficult for Jenkins to overcome on harmless-error review. 

Throughout 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 fact 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 court abused its discretion 

by admitting evidence of his 2006 burglary conviction. He says that the conviction 

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 burglary of an electronics store is so different and so remote in time from 

the attempted armed robbery of a house of drug traffickers that the district court 

may have erred in admitting it. However, “[w]e review preserved evidentiary 

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objections for harmless error.” 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-person meetings planning the robbery; he described his plans to 

shoot and kill the occupants of the house if they resisted; and he arrived at the 

scene with gloves and a firearm on the appointed date. We cannot reverse because 

this prior conviction was admitted.

IV.

Next, Jenkins argues that the government engaged in sentencing-factor 

manipulation by selecting 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 

be filtered out of the sentencing calculus.” Id. The bar is “high”: we have 

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 have put it, “so objectionable” or “sufficiently reprehensible” or 

“extraordinary misconduct.” Id. at 1270–71.

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We cannot say that the government’s conduct in this case met that high bar. 

In United 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 warrant either 

dismissal of the superseding indictment, or reversal of their 

convictions, or a downward departure of their sentences.

Id. at 1413. Regarding 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—that my unit has been involved in, that quantity 

amount is not as prevalent as it was back, you know, in the ’80s.”).

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 

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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 

construct a violent plan here. This 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 government’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 “objectionable” 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 

furtherance of a crime of violence. “[A] court cannot permit a defendant to be 

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, 273 (1960). Under this rule, a 

district court may not constructively amend the indictment. See id. 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 

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conviction beyond what is contained in the indictment.” United States v. Keller, 

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 furtherance of a crime of violence, the district court’s 

definition of “possession” in the jury instructions repeatedly referred to a “drug 

trafficking” crime.6

 At first, the court correctly said that “it is a separate federal 

crime for anyone to use, carry, possess[] or brandish a firearm in furtherance of a 

crime of violence.” However, the district court 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 committing 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, 

the status of 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 government admits in its brief that “[an] error occurred.” 

However, neither Clarke nor Jenkins objected to the jury instructions at trial. 

 

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).

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[W]e may only reverse a defendant’s conviction based on an 

unobjected-to constructive amendment if the constructive amendment 

satisfies the Olano7 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 proceedings. 

United States v. Madden, 733 F.3d 1314, 1321 (11th Cir. 2013). In Madden, we 

held that a district court’s constructive amendment of the indictment met the plainerror standard for reversal. There, while the indictment stated that the defendant 

“did knowingly 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 defendant 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 

furtherance of a drug 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 relation to.’” Id.

 7 Olano, 507 U.S. 725, 113 S. Ct. 1770.

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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 methods of conviction[,] [a]nd it [was] clear under current law 

that a court 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 indictment. In the end, . . . we [could not] say with certainty 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 error 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 

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 

repeatedly argued during its closing that the crime of violence at issue was 

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“narcotics-related robberies” and that “robbery is violent,” we find it certain that 

the jury would have understood that firearms were possessed 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. The jury 

could not have convicted Jenkins and Clarke for using and 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.

VI.

Next, Jenkins argues that his Sixth Amendment rights were violated when 

the prosecutor refused to withdraw a Section 851 notice of enhancement after he 

declined to enter a guilty plea. At a status conference before trial, the prosecutor

said that “[t]he government 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 

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forward” is, 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 prosecutor 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 prosecutor 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 

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 dangerous 

special drug offender if [the Defendant] would plead guilty as charged.” Id. at 

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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 right 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 prosecutorial vindictiveness.” Id. (footnote omitted).

We are bound by our ruling in Darby. Although it is certainly true that the 

prosecutor considered withdrawing 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 of his Sixth-Amendment rights.

VII.

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 

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 

 

8 This question is different from the one Jenkins raised with regard to his section 

922(g)(1) charge. For section 922(g)(1), we look to whether 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]ederal law, 

rather than state law, governs the interpretation of section 841(b)(1)(B).”).

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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 has 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 the 

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 court, 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. 

2012). There 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 

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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 reaffirmed 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 arguing 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 restraint 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] successfully 

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 

provision 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, we cannot say that the district 

court plainly erred in holding that Jenkins’s state felony was a conviction even if 

adjudication was withheld and he was not punished or penalized in any way.

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VIII.

Jenkins next argues that his conviction under the Hobbs Act and Section 

924(c) are unconstitutional after the Supreme Court’s recent decision upholding 

the Affordable Care Act in National Federation of Independent Business v. 

Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012) (NFIB). Although constitutional 

issues are generally reviewed de novo, we review them only for plain error when a 

defendant fails to raise them before the district court. 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 interstate 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 

could not be sustained under the commerce power 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 

address the Commerce Clause generally, the Supreme Court gave no indication 

that it was overruling the numerous circuit-court opinions upholding 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 

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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 precedent 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 considered here. 

AFFIRMED.

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