USA v. Zachary Dee Lopez

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13036
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZACHARY DEE LOPEZ,
a.k.a. Zacahry Lopez,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cr-00025-KKM-SPF-1
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2 Opinion of the Court 22-13036
____________________
Before J ORDAN, LAGOA and DUBINA , Circuit Judges.
PER CURIAM:
Appellant Zachary Lopez appeals his convictions and
84-month total sentence for conspiring to possess with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C)
(“Count One”); possessing with intent to distribute cocaine, in vio-
lation of § 841(a)(1) & (b)(1)(C) (“Count Two”); carrying a firearm
during and in relation to a drug-trafficking offense, in violation of
18 U.S.C. § 924(c)(1)(A)(i) (“Count Three”); and possessing a fire-
arm with an obliterated serial number, in violation of 18 U.S.C.
§§ 922(k) and 924(a)(1)(B) (“Count Four”). On appeal, Lopez ar-
gues: (1) that he is legally innocent of Counts Three and Four be-
cause § 922(k) and § 924(c) are an unconstitutional infringement on
his Second Amendment right to possess a firearm; (2) that § 922(k)
is unconstitutional, both facially and as applied, because the statute
exceeds Congress’s authority under the Commerce Clause; and (3)
that the district court plainly erred in applying the two-level
U.S.S.G. § 2D1.1(b)(1) specific offense characteristic for possessing
a dangerous weapon in calculating his guidelines range. Having
read the parties’ briefs and reviewed the record, we affirm Lopez’s
convictions but vacate his 84-month total sentence and remand for
re-sentencing.
I.
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22-13036 Opinion of the Court 3
While we typically review de novo the constitutionality of a
statute, constitutional issues that are raised for the first time on ap-
peal are reviewed for plain error. United States v. Bolatete, 977 F.3d
1022, 1032, 1034 (11th Cir. 2020). Under plain-error review, we can
correct an error only when (1) an error has occurred, (2) the error
was plain, (3) the error affected substantial rights, and (4) the error
seriously affects the fairness, integrity or public reputation of judi-
cial proceedings. United States v. Vandergrift, 754 F.3d 1303, 1307
(11th Cir. 2014). A “plain” error is one that is “clear or obvious,
rather than subject to reasonable dispute.” Puckett v. United States,
556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). An error is not plain
if “[n]o precedent from the Supreme Court or this Court, or ex-
plicit language of a statute or rule, directly resolv[es] the issue.”
United States v. Innocent, 977 F.3d 1077, 1085 (11th Cir. 2020) (inter-
nal quotation marks omitted). The error must be plain at the time
of appellate consideration. United States v. Smith, 459 F.3d 1276,
1283 (11th Cir. 2006).
Lopez raises for the first time on appeal his Second Amend-
ment argument that his convictions under Counts Three and Four
are an unconstitutional infringement on his right to possess a fire-
arm. The government responds that Lopez’s argument fails under
plain error review because he has not shown any binding precedent
that holds that §§ 924(c) or 922(k) violate the Second Amendment.
The government also contends that the Second Amendment’s ex-
plicit text also does not plainly establish that Lopez can carry a fire-
arm with an obliterated serial number or that he can carry a fire-
arm to engage in drug-trafficking.
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4 Opinion of the Court 22-13036
In Dist. of Columbia v. Heller, the United States Supreme
Court sustained a Second Amendment challenge to a District of
Columbia law that prohibited private possession of handguns in
the home. 554 U.S. 570, 635, 128 S. Ct. 2783, 2821-22 (2008). The
Court noted that, “on the basis of both text and history,” the Sec-
ond Amendment conferred an individual right to keep and bear
arms. Id. at 595, 128 S. Ct. at 2799. It held that law-abiding citizens
have a Second Amendment right to possess handguns in the home
for the purpose of immediate self-defense. Id. at 635-36, 128 S. Ct.
at 2821-22. Heller noted that historical commentary and court cases
made clear that the Second Amendment right “is not unlimited.”
Id. at 626, 128 S. Ct. at 2816. Importantly, the Court stated that
“nothing in [its] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons
and the mentally ill,” among other limitations. Id., 128 S. Ct. 2816-
17.
While we have not addressed the constitutionality of
§ 924(c) or § 922(k) specifically, two years after Heller we rejected a
challenge to 18 U.S.C. § 922(g)(1). See United States v. Rozier, 598
F.3d 768 (11th Cir. 2010). Rozier possessed a firearm and ammuni-
tion after having been convicted of several felony drug crimes, and
he challenged his conviction on the ground that § 922(g)(1) violates
the Second Amendment. Id. at 769 & n. 1, 770. Noting that “the
initial question is whether one is qualified to possess a firearm,” we
reasoned that, as a felon, Rozier’s Second Amendment right “is not
weighed in the same manner as that of a law-abiding citizen,” such
as the individual in Heller. Id. at 770-71. We explained that “statutes
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22-13036 Opinion of the Court 5
disqualifying felons from possessing a firearm under any and all cir-
cumstances do not offend the Second Amendment,” and statutory
restrictions like § 922(g)(2) on certain classes of people are consti-
tutional. Id. at 771.
Recently, the Supreme Court issued its opinion in N.Y. State
Rifle & Pistol Ass’n. Inc. v. Bruen, which involved a challenge to New
York’s gun-licensing regime. 597 U.S. 1, 11, 142 S. Ct. 2111, 2122
(2022). New York prohibited law-abiding citizens from obtaining a
license to carry a gun outside the home unless they first proved “a
special need for self-defense.” Id. The Court ultimately ruled the
scheme unconstitutional because “the Second and Fourteenth
Amendments protect an individual’s right to carry a handgun for
self-defense outside the home.” Id. at 10-11, 142 S. Ct. at 2122.
Bruen reiterated that “Heller’s text-and-history standard” is the cor-
rect test for determining the constitutionality of gun restrictions.
See id. at 39, 142 S. Ct. at 2138.
After Bruen, we rejected a defendant’s Second Amendment
challenge to § 922(g)(1). See 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 abid-
ing, responsible citizens.” Id. at 1292-93. We then determined that
Bruen did not abrogate our precedent in Rozier under the
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6 Opinion of the Court 22-13036
prior-panel-precedent rule1 because the Supreme Court made it
clear that Heller did not cast doubt on felon-in-possession prohibi-
tions, and because the Court made it clear in Bruen that its holding
was in keeping with Heller. Id. at 1293. We noted that Rozier “in-
terpreted Heller as limiting the right to ‘law-abiding and qualified
individuals,’ 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.
Section 922(k) of Title 18 of the U.S. Code provides that:
It shall be unlawful for any person knowingly to
transport, ship, or receive, in interstate or foreign
commerce, any firearm which has had the importer’s
or manufacturer’s serial number removed, oblite-
rated, or altered or to possess or receive any firearm
which has had the importer’s or manufacturer’s serial
number removed, obliterated, or altered and has, at
any time, been shipped or transported in interstate or
foreign commerce.
1 As discussed below, the prior-panel-precedent rule mandates that “a prior
panel’s holding is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme Court or by
this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.
2008).
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22-13036 Opinion of the Court 7
18 U.S.C. § 922(k). Section 924(c) of Title 18 of the U.S. Code pro-
scribes carrying a firearm “during and in relation to any crime of
violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A).
The record demonstrates that, under plain-error review,
Lopez’s convictions under §§ 924(c) and 922(k) are not unconstitu-
tional. Lopez cannot establish error that is plain because neither
the Supreme Court nor our court has held that § 924(c) is uncon-
stitutional under the Second Amendment. Further, the Supreme
Court and our court have repeatedly held that the Second Amend-
ment guarantees a right to “law-abiding citizens.” See, e.g., Heller,
554 U.S. at 635, 128 S. Ct. at 2821; Dubois, 94 F.4th at 1292-93. Be-
cause the statute necessarily requires that a person not be engaging
in law-abiding activity, namely be engaging in a crime of violence
or a drug-trafficking crime, Lopez cannot show that the plain text
of the Second Amendment or the case law analyzing it establishes
that § 924 (c) is unconstitutional. As to his as-applied challenge,
although Lopez argues that he possessed the firearm in self-de-
fense, he also admitted that he had knowingly possessed a firearm
in furtherance of a drug-trafficking offense. Lopez was not using
the firearm as a law-abiding citizen, so we conclude the statute is
not unconstitutional as applied to him.
Likewise, Lopez cannot establish plain error as to § 922(k)
because neither the Supreme Court nor our court has held that this
statute is unconstitutional under the Second Amendment. In ana-
lyzing the text of the Second Amendment, the Supreme Court and
our court have held that it guarantees a right to law-abiding citizens
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8 Opinion of the Court 22-13036
to possess a firearm, and this does not establish that a law proscrib-
ing a person from carrying a firearm with an obliterated serial
number is unconstitutional. Because Lopez acknowledges that he
possessed a firearm during the commission of a drug-trafficking
offense, his conduct fell outside the scope of law-abiding purposes,
and § 922(k) is not unconstitutional as applied to him. Thus, be-
cause we see no merit to Lopez’s Second Amendment challenge,
we affirm his convictions on Counts Three and Four.
II.
Lopez also argues that § 922(k) is unconstitutional, both fa-
cially and as applied because the statute exceeds Congress’s author-
ity under the Commerce Clause. Although Lopez acknowledges
that his challenge is foreclosed by this court’s precedent, he asserts
that § 922(k) is facially unconstitutional because it prohibits posses-
sion, a non-economic activity, and does not ensure that this activity
substantially affects interstate commerce. Lopez also argues that
the statute is unconstitutional as applied to him because, while the
gun at issue was manufactured in Austria, the government did not
establish any connection between the charged offense of posses-
sion and interstate or foreign commerce. The government re-
sponds that Lopez’s argument, raised for the fist time on appeal, is
foreclosed by our precedent.
As noted above, our prior-panel-precedent rule mandates
that “a prior panel’s holding is binding on all subsequent panels un-
less and until it is overruled or undermined to the point of abroga-
tion by the Supreme Court or by this court sitting en banc.” Archer,
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22-13036 Opinion of the Court 9
531 F.3d at 1352. “It does not matter whether a prior case was
wrongly decided; whether it failed to consider certain critical issues
or arguments; or whether it lacked adequate legal analysis to sup-
port its conclusions.” United States v. Lee, 886 F.3d 1161, 1163 n.3
(11th Cir. 2018) (citations omitted)). We have applied the
prior-panel-precedent rule where a case does not involve the same
statute as its prior precedent, but involves the same statutory lan-
guage, such that the textual differences were not “sufficient for a
panel to be able to write around [its] prior panel precedent . . . .”
United States v. Gillis, 938 F.3d 1181, 1199-1200 (11th Cir. 2019).
Although both Lopez and the government argue that
Lopez’s Commerce Clause argument is foreclosed by prior prece-
dent, our court has never addressed the constitutionality of § 922(k)
in the context of the Commerce Clause. We have addressed other
statutes with similar jurisdictional language and have held that a
defendant’s possession of a firearm that had traveled in interstate
commerce in the past was sufficient to satisfy the interstate com-
merce element and the Commerce Clause. See United States v.
Pritchett, 327 F.3d 1183, 1185-86 (11th Cir. 2003) (addressing §
922(j)); see also United States v. McAllister, 77 F.3d 387, 390 (11th Cir.
1996) (addressing § 922(g)). However, our court has applied the
prior panel precedent rule to cases involving different statues,
where the statutory text is not sufficiently different to write around
its prior panel precedent. Gillis, 938 F.3d at 1199-1200. Therefore,
given the similarities in the language between § 922(g)(1), § 922(j),
and § 922(k), Lopez’s argument is likely foreclosed by our prece-
dent. Moreover, even if the argument is not foreclosed by our
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10 Opinion of the Court 22-13036
precedent, Lopez’s argument fails the first prong of plain error re-
view because there is no caselaw from our court or the Supreme
Court holding that § 922(k) is unconstitutional under the Second
Amendment. Thus, we conclude there is no merit to Lopez’s ar-
gument, and affirm his convictions.
III.
Section 2K2.4 of the Federal Sentencing Guidelines applies
where a defendant has violated 18 U.S.C. §§ 844(h), 924(c), or
929(a). U.S.S.G. § 2K2.4(a), (b). The commentary provides that,
“[i]f a sentence under this guideline is imposed in conjunction with
a sentence for an underlying offense, do not apply any specific of-
fense characteristic for possession, brandishing, use, or discharge
of an explosive or firearm when determining the sentence for the
underlying offense.” Id., comment. (n.4).
“[W]hen a defendant is convicted of a § 924(c) violation and
an underlying offense, the defendant’s possession of a weapon can-
not be used to enhance the level of the underlying offense.” United
States v. Diaz, 248 F.3d 1065, 1107 (11th Cir. 2001) (involving the
issue of whether a defendant could be held accountable under
§ 2D1.1(b)(1) for a co-conspirator’s possession of the firearm as rel-
evant conduct)2; see also United States v. Timmons, 283 F.3d 1246,
1254 (11th Cir. 2002) (“[B]ecause Timmons was convicted and
2 Diaz discusses the relevant commentary to § 2K2.4 as it appeared in Applica-
tion Note 2 at that time. Amendment 642 to the Federal Sentencing Guide-
lines thereafter moved Application Note 2 to its current location in Application
Note 4. See U.S.S.G. App. C, Amend. 642 (2002).
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22-13036 Opinion of the Court 11
sentenced for violating § 924(c) by possession of a firearm during
and in relation to the drug-trafficking crime . . . , the district court
[was] precluded from applying a weapons enhancement pursuant
to U.S.S.G. § 2D1.1(b)(1) to the underlying drug charges”). This
“prevent[s] ‘double counting’ for firearms use[d] in any one criminal
event.” United States v. Pringle, 350 F.3d 1172, 1180 (11th Cir. 2003).
“When a defendant is sentenced under an incorrect Guide-
lines range—whether or not the defendant’s ultimate sentence falls
within the correct range—the error itself can, and most often will,
be sufficient to show a reasonable probability of a different out-
come absent the error.” Molina-Martinez v. United States, 578 U.S.
189, 198, 136 S. Ct. 1338, 1345 (2016). While the government may
point to record evidence, including relevant statements by the
judge, to counter a showing of prejudice the defendant may make,
“[w]here, however, the record is silent as to what the district court
might have done had it considered the correct Guidelines range,
the court’s reliance on an incorrect range in most instances will suf-
fice to show an effect on the defendant’s substantial rights.” Id. at
200-01, 136 S. Ct. at 1346-47.
The record demonstrates, and both parties agree,3 that the
district court plainly erred in applying the two-level § 2D1.1(b)(1)
specific offense characteristic enhancement for possessing a dan-
gerous weapon in calculating Lopez’s guidelines range. See United
States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014) (when a
3 We applaud the government for confessing error on this issue.
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12 Opinion of the Court 22-13036
party fails to object at sentencing, appellate court reviews for plain
error only). The district court sentenced Lopez for violating
§ 924(c)(1)(A)(i), and a defendant’s conviction for possession of a
weapon cannot be used to enhance the level of the underlying of-
fense. See Diaz; Timmons. Further, the record is silent as to what
sentence the district court might have imposed if it had considered
the correct advisory guidelines range. Thus, there was an error,
that was plain and that affected Lopez’s substantial rights. The er-
ror also seriously affected the fairness of the judicial proceedings
because Lopez received a harsher sentence than the district court
may have imposed had it been aware of the correctly calculated
guideline. Thus, we vacate Lopez’s sentence and remand the case
for a new sentencing hearing.
Accordingly, based on the aforementioned reasons, we af-
firm Lopez’s convictions but vacate his total sentence and direct the
district court on remand to conduct a resentencing hearing in ac-
cordance with this opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.
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