FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 17, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11876

Non-Argument Calendar

________________________

D. C. Docket No. 05-20392-CR-JAG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DOMINIQUE LEWIS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 17, 2007)

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and

PRYOR, Circuit Judges.
 Lewis also asserted (1) his conviction under § 924(c) violated the Commerce Clause

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and (2) the district court erred in denying him a U.S.S.G. § 3E.1.1 acceptance-of-responsibility

reduction. Our en banc review does not affect the prior opinion’s resolution of these issues. 

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BLACK, Circuit Judge:

Dominique Lewis appealed his conviction for brandishing a firearm in

furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii),

asserting his trial violated the Double Jeopardy Clause in the Fifth Amendment of

the United States Constitution. Relying on our precedent, a panel of this Court 1

held Lewis waived his double jeopardy claim by not asserting it before the district

court. United States v. Lewis, 207 F. App’x 943, 945 (11th Cir. 2006) (citing

United States v. Williams, 445 F.3d 1302, 1306 n.4 (11th Cir. 2006)). Lewis

petitioned this Court to rehear his case en banc asserting our precedent does not

comport with United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993). Lewis

argues his failure to assert the double jeopardy defense before the district court

constituted a forfeiture, not a waiver, and, pursuant to Olano, his claim was entitled

to plain error review on appeal. 

We agreed to hear Lewis’s claim en banc and will now decide whether a

defendant’s failure to raise a double jeopardy claim before the district court

constitutes a forfeiture, in which case we would review the claim for plain error, or

a waiver, in which case we would not review the claim at all.
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I. DISCUSSION

Lewis failed to raise his double jeopardy claim before the district court. 

Under Federal Rule of Criminal Procedure 52(b), this Court may correct a “plain

error that affects substantial rights . . . even though it was not brought to the

[district] court’s attention.” Fed. R. Crim. P. 52(b). In Olano, the Supreme Court

clarified that “[m]ere forfeiture, as opposed to waiver, does not extinguish an

‘error’ under Rule 52(b).” Olano, 507 U.S. at 733, 113 S. Ct. at 1777 (citation

omitted). Thus, while forfeited claims are reviewed under Rule 52(b) for plain

error, waived claims are not. See id at 733, 113 S. Ct. at 1777. The Supreme Court

also explained the difference between waiver of a constitutional right and forfeiture

of a constitutional right. The Court explained, “Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the intentional relinquishment or

abandonment of a known right.” Id. at 733, 113 S. Ct. at 1777 (quotation omitted). 

This Circuit’s precedent concerning whether a double jeopardy claim not raised in

the district court is considered forfeited or waived is inconsistent with the Supreme

Court’s analysis in Olano.

Before Olano, when presented with double jeopardy claims raised for the

first time on direct appeal, this Court concluded such claims were “waived,”

without addressing the difference between waiver and forfeiture. In Grogan v.
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

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Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to close of business on September 30, 1981.

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United States, 394 F.2d 287, 289 (5th Cir. 1967), for example, the defendant 2

raised a double jeopardy claim for the first time on appeal. A panel of this Court

stated that the defense “should have been affirmatively raised at some point in the

proceedings in the district court and was thus waived by appellant’s failure to

assert it at the trial.” Id. Nevertheless, the panel proceeded to review the merits of

that claim, without citing a standard of review, and ultimately concluded the

defendant had not been placed in double jeopardy. Id. at 289-90. 

Relying on Grogan, in United States v. Bascaro, 742 F.2d 1335, 1365 (11th

Cir. 1984), this Court declined to reach the merits of a defendant’s double jeopardy

claim raised for the first time on appeal, holding that the defendant waived his

defense by failing to assert it before the trial court. Id. (citing Grogan, 394 F.2d at

289). 

After the Supreme Court explained the difference between waiver and

forfeiture in Olano, this Court continued to hold that double jeopardy claims raised

for the first time on direct appeal were waived, without discussing the distinction

between waiver and forfeiture. See Williams, 445 F.3d at 1306 n.4. In Williams,

the defendant argued for the first time on appeal that several of his convictions
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violated the Double Jeopardy Clause. Id. The Court declined to consider the

merits of the defendant’s double jeopardy claim, stating “the double jeopardy

defense is waived by failure to assert it at trial.” Id. (citing Bascaro, 742 F.2d at

1365). 

Since Olano, other Circuits confronted with the issue of whether a defendant

waives or forfeits a double jeopardy defense by not asserting it before the trial

court have held the defense is forfeited. See, e.g., United States v. HernandezGuardado, 228 F.3d 1017, 1028-29 (9th Cir. 2000) (holding, after a discussion on

the difference between waiver and forfeiture, “a failure to assert double jeopardy

before the district court was a forfeiture of that right, not a waiver”); United States

v. Branham, 97 F.3d 835, 842 (6th Cir. 1996) (holding that because the defendant

took no affirmative steps to voluntarily waive his claim, his failure to assert double

jeopardy constituted a forfeiture); United States v. Penny, 60 F.3d 1257, 1261 (7th

Cir. 1995) (holding, after discussing Olano, “failure to assert the double jeopardy

defense in the trial court constituted a forfeiture”); United States v. Jarvis, 7 F.3d

404, 409 (4th Cir. 1993) (concluding the defendant “forfeited consideration of the

merits of his former jeopardy claim . . . when he failed to raise the defense at some

point during the proceedings”).

We now hold, consistent with Olano, that a waiver is the intentional
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relinquishment of a known right, whereas the simple failure to assert a right,

without any affirmative steps to voluntarily waive the claim, is a forfeiture to be

reviewed under the plain error standard embodied in Rule 52(b). See Olano, 507

U.S. at 733, 113 S. Ct. at 1777. In the instant case, Lewis took no affirmative steps

to waive his right against double jeopardy; he simply failed to assert his right. 

Accordingly, Lewis forfeited his right to a double jeopardy defense, and his claim

is entitled to plain error review. 

We will correct a plain error when (1) an error has occurred, (2) the error

was plain, and (3) the error affected substantial rights. United States v. Zinn, 321

F.3d 1084, 1087 (11th Cir. 2003). “If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if . . . the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)

(quotation omitted). In this case, we need not answer whether the error was plain

or whether the error affected substantial rights because Lewis can show no error.

 Lewis pled guilty to conspiracy to interfere with commerce by robbery, in

violation of 18 U.S.C. § 1951(a), and interference with commerce by robbery, in

violation of § 1951(a). The jury found Lewis guilty of brandishing a firearm in

furtherance of a crime of violence (robbery), in violation of 18 U.S.C.
 Lewis explicitly states he is not raising a claim regarding the protection against

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multiple punishments. Even if he were, his claim would fail because 18 U.S.C.

§ 924(c)(1)(A)(ii) explicitly requires imposition of a seven-year sentence “in addition to”

whatever sentence is due for the crime of violence. See United States v. Dowd, 451 F.3d 1244,

1251-52 (11th Cir. 2006) (holding where Congress has authorized the imposition of consecutive

sentences, it is irrelevant for Double Jeopardy purposes whether one of the crimes is a lesserincluded offense of the other crime). 

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§ 924(c)(1)(A)(ii). Lewis now asserts his guilty plea to the robbery count

foreclosed a trial on the firearm count because he was already put in jeopardy for

the robbery charge, which is a lesser-included offense of the firearm charge. 

Specifically, Lewis asserts the trial and conviction violated the protection under the

Double Jeopardy Clause against a second prosecution after conviction. 

 “While the Double Jeopardy Clause may protect a defendant against

cumulative punishments for convictions on the same offense, the Clause does not

prohibit the State from prosecuting [a defendant] for such multiple offenses in a

single prosecution.” Ohio v. Johnson, 467 U.S. 493, 500, 104 S. Ct. 2536, 2541 3

(1984). That case, like this case, involved an initial plea of guilty to only a portion

of a single multi-count indictment. Id. at 496, 104 S. Ct. at 2539. The Court held

that the Double Jeopardy Clause did not prevent trial on the remaining charges in

the indictment as to which the defendant had not pled guilty. Id. at 502, 104 S. Ct.

at 2542. The Court treated the plea and the trial as a single prosecution. Id. at 502,

104 S. Ct. at 2542. Lewis’s claim fails, therefore, because his guilty plea to the

robbery count did not prohibit the Government from prosecuting the firearm count
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in the same indictment. See Johnson, 467 U.S. at 500-02, 104 S. Ct. at 2541-43;

United States v. Schlaen, 300 F.3d 1313, 1317 (11th Cir. 2002) (“[T]he Double

Jeopardy Clause . . . protects defendants against successive prosecutions, not

simultaneous ones . . . . ”). Thus, there is no error regarding double jeopardy, and

Lewis’s claim fails under plain error review.

II. CONCLUSION

We hold that a defendant who simply failed to raise a double jeopardy claim

before the district court, and took no affirmative steps to voluntarily relinquish the

claim, forfeited that claim. On appeal, we review a forfeited claim for plain error. 

In this case, however, no error occurred. Therefore, Lewis’s claim fails under

plain error review. 

AFFIRMED.