Case Information

UNITED STATES of America, Plaintiff-Appellee, v. Terance Martez GAMBLE, Defendant-Appellant.

No. 16-16760

United States Court of Appeals, Eleventh Circuit.

July 28, 2017

694 F. App'x 750

Non-Argument Calendar

spect to which laws to enforce or not enforce, see Smith v. United States, 375 F.2d 243, 248 (5th Cir. 1967) (citing 28 U.S.C. § 2680(a)) (holding that the Act "exempts the government from liability for exercising the discretion inherent in the prosecutorial function of the Attorney General"); Gray v. Bell, 712 F.2d 490, 513 (D.C. Cir. 1983) ("Prosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and, accordingly, courts have uniformly found them to be immune under the discretionary function exception."). Because the government is immune from liability as to Johnson's mental anguish claim, that claim was properly dismissed as well.2

AFFIRMED.

Christopher B. Brinson, Adam W. Overstreet, Kenyen Ray Brown, Michele Carstens O'Brien, U.S. Attorney's Office, Mobile, AL, for Plaintiff-Appellee

Barre Clark Dumas, Dumas & McPhail, LLC, Mobile, AL, for Defendant-Appellant

Before HULL, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

Terance Martez Gamble appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gamble argues that the district court erred by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the State of Alabama.

We review de novo, as a pure question of law, any possible violation of the Double Jeopardy Clause. United States v. McIntosh, 580 F.3d 1222, 1226 (11th Cir. 2009).

The Supreme Court has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns. Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). We have followed the precedent set by Abbate in Hayes, stating that unless and until the Supreme Court overturns Abbate, the double jeopardy claim must fail based on the dual sovereignty doctrine. United States v. Hayes, 589 F.2d 811, 817-18 (5th Cir. 1979). We have, more recently, stated that "[t]he Double Jeopardy Clause does not prevent different sovereigns (i.e., a state government and the federal government) from punishing a defendant for the same criminal conduct." United States v. Bidwell, 393 F.3d 1206, 1209 (11th Cir. 2004).

In Sanchez-Valle, the Supreme Court stated that the states were separate sovereigns from the federal government because the States rely on authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 136 S.Ct. 1863, 1871, 195 L.Ed.2d 179 (2016). It explained that prior to forming the Union, the States possessed separate and independent sources of power and authority, which they continue to draw upon in enacting and enforcing criminal laws. Id. State prosecutions therefore have their most ancient roots in an "inherent sovereignty" unconnected to, and indeed pre-existing, the U.S. Congress. Id. The Supreme Court differentiated Puerto Rico from the States, stating that it was not a sovereign distinct from the United States because it had derived its authority from the U.S. Congress. Id. at 1873-74. It concluded that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a single person for the same conduct under equivalent criminal laws. Id. at 1876.

The district court did not err by determining that double jeopardy did not prohibit the federal government from prosecuting Gamble for the same conduct for which he had been prosecuted and sentenced for by the State of Alabama, because based on Supreme Court precedent, dual sovereignty allows a state government and the federal government to prosecute an individual for the same crime, when the States rely on authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. Accordingly, we affirm.

AFFIRMED.

Footnotes

2 Johnson's complaint also asserted a claim under Title VII of the Civil Rights Act of 1964. But in his brief to this Court, he makes only a "passing reference" to that claim. As a result, he has abandoned it. See Sapuppo v. Allstate Floridian Ins, Co., 739 F.3d 678, 681-82 (11th Cir. 2014); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) ("While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.") (citations omitted).