USA v. Sencheze Dunlap

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12883
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SENCHEZE DONTAY DUNLAP,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:22-cr-00021-HL-TQL-1
____________________
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 23-12883
Before B RASHER , ABUDU, and DUBINA , Circuit Judges.
PER CURIAM:
Appellant Sencheze Dunlap, proceeding with counsel, ap-
peals his conviction for possessing a firearm as a felon, in violation
of 18 U.S.C. § 922(g)(1). On appeal, he challenges the constitution-
ality of § 922(g)(1), both facially and as applied to him. Having read
the parties’ briefs and reviewed the record, we affirm Dunlap’s con-
viction.
I.
We generally review de novo the constitutionality of a statute
but review for plain error only where a defendant raises his consti-
tutional challenge to his statute of conviction for the first time on
appeal. United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019)
(citing United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010)).
The Supreme Court has held that a criminal defendant’s guilty plea
does not bar a subsequent constitutional challenge to the statute of
conviction. Class v. United States, 583 U.S. 174, 178, 138 S. Ct. 798,
803 (2018).
An error is plain if the legal rule is clearly established at the
time the case is reviewed on direct appeal. United States v. Hender-
son, 409 F.3d 1293, 1307-08 (11th Cir. 2005). If the explicit language
of a statute or rule does not resolve an issue, plain error lies only
where this court’s or the Supreme Court’s precedent directly re-
solves it. United States v. Moore, 22 F.4th 1258, 1266 (11th Cir. 2022)
(citing United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015)).
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 2 of 6

-- 2 of 6 --

23-12883 Opinion of the Court 3
Additionally, under the prior panel precedent rule, “a prior panel’s
holding is binding on all subsequent panels unless and until it is
overruled or undermined to the point of abrogation by the Su-
preme Court or by this court sitting en banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008); see also Gissendaner v. Comm’r,
Ga. Dep’t of Corr., 779 F.3d 1275, 1284 (11th Cir. 2015) (“Until the
Supreme Court issues a decision that actually changes the law, we
are duty-bound to apply this Court’s precedent . . . .”). “To consti-
tute an overruling for the purposes of this prior panel precedent
rule, the Supreme Court decision must be clearly on point.” United
States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quotation marks
omitted). “In addition to being squarely on point, the doctrine of
adherence to prior precedent also mandates that the intervening
Supreme Court case actually abrogate or directly conflict with, as
opposed to merely weaken, the holding of the prior panel.” Id.
II.
On appeal, Dunlap argues that 18 U.S.C. § 922(g)(1) is fa-
cially unconstitutional considering Supreme Court rulings and that
the plain text of the Second Amendment covers the possession of
firearms by people who are not necessarily law-abiding. In the al-
ternative, Dunlap claims that even if the statute is constitutional, it
is unconstitutional as applied to him because there is no historical
tradition that supports prohibiting firearm possession by persons
with his kind of criminal history. The Second Amendment reads:
“A well-regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. Const. amend. II. Section 922(g) of Title 18 of the
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 23-12883
United States Code prohibits anyone who has been convicted of a
crime punishable by more than one year of imprisonment from
possessing a firearm or ammunition. 18 U.S.C. § 922(g)(1).
In District of Columbia v. Heller, the Supreme Court held that
the Second Amendment right to bear arms presumptively “belongs
to all Americans,” but is not unlimited. 554 U.S. 570, 581, 626, 128
S. Ct. 2783, 2791, 2816 (2008). The Supreme Court stated that,
while it “[did] not undertake an exhaustive historical analysis . . . of
the full scope of the Second Amendment, nothing in [its] opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons.” Id. at 626, 128 S. Ct. at 2816-17.
In United States v. Rozier, we relied on Heller in ruling that
§ 922(g)(1) did not violate the Second Amendment. 598 F.3d 768,
770 (11th Cir. 2010). In concluding that § 922(g)(1) was constitu-
tional, we recognized that prohibiting felons from possessing fire-
arms was a “presumptively lawful longstanding prohibition.” Id.
at 771 (citation omitted).
In N.Y. State Rifle and Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142
S. Ct. 2111 (2022), the Supreme Court stated that a court must ask
whether the firearm regulation at issue governs conduct that falls
within the plain text of the Second Amendment. Id. at 17, 142 S.
Ct. at 2126. If the regulation does govern such conduct, the court
will uphold it if the government “affirmatively prove[s] that its fire-
arms regulation is part of the historical tradition that delimits the
outer bounds of the right to keep and bear arms.” Id. at 19, 142 S.
Ct. at 2127. The Supreme Court in Bruen, as it did in Heller,
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 4 of 6

-- 4 of 6 --

23-12883 Opinion of the Court 5
referenced the Second Amendment rights of “law-abiding, respon-
sible citizens.” Id. at 9, 142 S. Ct. at 2122, Id. at 26, 142 S. Ct. at
2131, Id. at 70, 142 S. Ct. at 2156.
After Bruen, we rejected a defendant’s Second Amendment
challenge to § 922(g)(1). United States v. Dubois, 94 F.4th 1284,
1291-93 (11th Cir. 2024). We noted that Bruen, like Heller, repeat-
edly described the right to bear arms as extending only to “law-
abiding, responsible citizens.” Id. at 1292-93. We then determined
that Bruen did not abrogate our precedent in Rozier under the prior
panel precedent rule because the Supreme Court made it clear that
Heller did not cast doubt on felon-in-possession prohibitions, and
because the Supreme Court made it clear in Bruen that its holding
was in keeping with Heller. Id. at 1293. We noted that Rozier inter-
preted Heller as limiting the right to “law-abiding and qualified in-
dividuals,” and as clearly excluding felons from those categories by
referring to felon-in-possession bans as presumptively lawful. Id.
We held that, because clearer instruction was required from the
Supreme Court before we could reconsider § 922(g)(1)’s constitu-
tionality, we were still bound by Rozier, and Dubois’s challenge
based on the Second Amendment necessarily failed. Id.
III.
The record demonstrates that the district court did not
plainly err in convicting Dunlap under § 922(g)(1) because our
binding precedent from Rozier, holding that § 922(g)(1) is constitu-
tional, and Dubois, confirming the constitutionality of § 922(g)(1)
post-Bruen, conclusively forecloses his argument. Rozier, 598 F.3d
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 23-12883
at 770-71; Dubois, 94 F.4th at 1293. Further, § 922(g)(1) is consistent
with the text and history of the Second Amendment and is consti-
tutionally sound. Dunlap also can cite no authority that would sup-
port an as-applied challenge to his § 922(g)(1) conviction. Accord-
ingly, based on the aforementioned reasons, we affirm Dunlap’s
conviction.
AFFIRMED.
USCA11 Case: 23-12883 Document: 25-1 Date Filed: 05/15/2024 Page: 6 of 6

-- 6 of 6 --