United States v. Ernest Vereen, Jr.
920 F.3d 1300
11th Cir.2019Background
- Vereen, a convicted felon, was charged under 18 U.S.C. §§ 922(g)(1), 924(e) after postal and police officers observed him remove a gun from his mailbox and place it in his back pocket; he conceded knowledge of the firearm and prior felony convictions.
- Vereen testified he found the gun unexpectedly, intended to report it to police, and put it in his back pocket to keep it from his children; police recovered the gun and, during a search, found a shotgun and matching ammunition in his apartment.
- At trial Vereen requested a jury instruction on an "innocent transitory possession" (ITP) defense; the district court refused and the jury convicted.
- At sentencing the PSR classified Vereen as an Armed Career Criminal under the ACCA based on two Florida aggravated battery convictions and one Florida felony battery conviction, producing a guideline range leading to a 293‑month sentence.
- Vereen appealed, arguing the court erred by refusing the ITP instruction, that § 922(g)(1) is vague (plain‑error), that his prior Florida convictions do not qualify as ACCA violent‑felony predicates, and that his sentence and § 922(g) are constitutionally infirm (Apprendi/Commerce Clause challenges).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a jury instruction on an "innocent transitory possession" (ITP) defense was required | Vereen: brief, faultless possession should negate "possession" under § 922(g)(1) and thus warrant an ITP instruction | Government: statute requires only knowing possession; motive and duration are irrelevant; ITP not recognized | Court: No ITP defense exists under § 922(g)(1); refusal to instruct not an abuse of discretion; even if recognized, facts here wouldn’t support it |
| Whether § 922(g)(1) is unconstitutionally vague because courts never recognized ITP (plain‑error review) | Vereen: failure to clarify availability of ITP renders "unlawful possession" vague | Government: claim unpreserved; no precedent supports void‑for‑vagueness theory here | Court: Plain‑error standard not met; no binding precedent establishing such vagueness; claim fails |
| Whether Vereen's Florida aggravated battery and felony battery convictions qualify as ACCA violent‑felony predicates | Vereen: prior convictions don’t meet ACCA "physical force"/elements test | Government: Shepard documents and plea colloquies show convictions under aggravated battery (GBH/deadly weapon) and felony battery (bodily‑harm prong) | Court: Aggravated battery and the felony battery bodily‑harm prong qualify as ACCA violent felonies; Shepard materials support the predicate findings |
| Whether sentence enhancement under ACCA and constitutionality of § 922(g) (Apprendi and Commerce Clause challenges) | Vereen: ACCA enhancement should have been submitted to a jury beyond a reasonable doubt; § 922(g) exceeds Commerce Clause power | Government: Binding precedent excepts prior convictions from Apprendi; § 922(g) previously upheld under Commerce Clause | Court: Claims foreclosed by binding precedent (Apprendi prior‑conviction exception; circuit precedent upholding § 922(g)); arguments fail |
Key Cases Cited
- United States v. Rehaif, 888 F.3d 1138 (11th Cir. 2018) (discussing the mens rea requirement for § 922(g) as drawn from § 924)
- United States v. Palma, 511 F.3d 1311 (11th Cir. 2008) (defendant not entitled to ITP instruction where evidence did not support it)
- United States v. Mason, 233 F.3d 619 (D.C. Cir. 2000) (recognizing a narrowly defined transitory innocent possession defense)
- Curtis Johnson v. United States, 559 U.S. 133 (2010) (defining "physical force" for ACCA elements analysis)
- United States v. Vail‑Bailon, 868 F.3d 1293 (11th Cir. 2017) (en banc) (test for force capable of causing pain or injury under ACCA)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be found by a jury, but prior convictions are excepted)
- Small v. United States, 544 U.S. 385 (2005) (Congressional purpose to keep firearms from those deemed untrustworthy)
- Taylor v. United States, 495 U.S. 575 (1990) (look to statutory elements, not underlying facts, in ACCA predicate analysis)
- Descamps v. United States, 570 U.S. 254 (2013) (divisibility analysis and use of Shepard documents)
- Shepard v. United States, 544 U.S. 13 (2005) (authorizing limited documents to determine which statutory alternative supported a prior plea)