PER CURIAM:
Daniel Charles Kirk appeals his conviction and fifteen-year sentence for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). On appeal, Kirk argues that the district court erred in applying the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), for two reasons. First, he argues that his prior burglary offenses do not qualify as "violent felonies" under the ACCA. Second, he argues that the government did not show that the burglaries were "committed on occasions different from one another" as required by the ACCA. As to his conviction, he argues that the Constitution requires the government to prove that a firearm or ammunition "substantially affected" interstate commerce before its possession can be punished under § 922(g).
We address each of his arguments in turn, and after careful consideration, we affirm his conviction and sentence.
Kirk's first argument on appeal is that his prior burglary offenses do not qualify as violent felonies under the ACCA. We consider de novo whether a particular conviction qualifies as a violent felony for purposes of the ACCA. United States v. Matthews, 466 F.3d 1271, 1273 (11th Cir.2006).
Under the Sentencing Guidelines, defendants who are subject to enhanced sentences under 18 U.S.C. § 924(e) are considered
The ACCA's inclusion of convictions for crimes that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another" is known as the statute's "residual clause."
Id. (second alteration in original) (citations and internal quotation marks omitted).
The Florida burglary statute under which Kirk was convicted prior to his § 922(g) offense defines burglary as:
Fla. Stat. § 810.02(1)(b).
Kirk argues that because it is unclear whether his prior convictions under the Florida statute were based on his "entering" or "remaining in" a dwelling,
Furthermore, we have previously held that a conviction under the earlier version of § 810.02, which included a "remaining in" element, was a conviction for a violent felony under the ACCA's residual clause. See Matthews, 466 F.3d at 1275 (holding that, in the context of a conviction for burglary based on entry into the roofed portion or curtilage of a structure, "even if [the defendant]'s third-degree burglary convictions [were] not convictions for `generic burglary,' they [were] convictions for violent crimes under the ACCA because they satisf[ied] th[e] alternative definition" under the residual clause). Although Florida's definition of burglary encompasses the curtilage of a structure and is therefore broader than the definition of generic burglary,
Id. We thus held that burglary under the prior version of § 810.02 qualified as a violent felony under the ACCA's residual clause even though it was unclear from the record there whether the defendant had entered into the roofed portion or the curtilage of the structures at issue. Id.
Kirk argues that this precedent is not applicable to his case because we did not consider the "remaining in" portion of the statute in Matthews. However, the Supreme Court in James expressed nearly identical concerns about potential violence when considering attempted burglary based on the earlier version of § 810.02, which defined burglary as "entering or remaining in a structure or a conveyance with the intent to commit an offense therein." See James, 550 U.S. at 197, 203, 127 S.Ct. at 1591, 1594-95. Accordingly, we think the same risks as explained in Matthews and James are present in the context of "remaining in" burglary. In sum, we find that Kirk's prior burglary convictions qualify as violent felonies under the ACCA's residual clause regardless of whether they were based on his "entering" or "remaining in" the dwellings at issue because either type of offense "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
Kirk's second argument on appeal is that the government did not prove that his prior convictions were for offenses "committed on occasions different from one another" as required for the ACCA mandatory minimum to apply. "Whether prior convictions meet the ACCA's separate offenses requirement is a legal determination we review de novo." United States v. Sneed, 600 F.3d 1326, 1330 n. 5 (11th Cir.2010) (citing United States v. Pope, 132 F.3d 684, 689 (11th Cir.1998)).
A defendant is subject to the ACCA enhancement only if he has three prior convictions for qualifying offenses "committed on occasions different from one another." 18 U.S.C. § 924(e)(1). This requirement means that the defendant's prior convictions must have resulted from crimes that are "temporally distinct" and arise out of "separate and distinct criminal episode[s]." Sneed, 600 F.3d at 1329 (internal quotation marks omitted). "`[S]o long as [the] predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of the ACCA.'" Weeks, 711 F.3d at 1261 (alterations in original) (quoting
We have held that the government must prove that prior offenses occurred on different occasions using only Shepard documents. See Sneed, 600 F.3d at 1332-33 (holding that police reports may not be used for ACCA inquiries and vacating the defendant's § 924(e)-enhanced sentence because the government had failed to produce any Shepard-approved documents establishing that the defendant's prior offenses occurred on different occasions); Weeks, 711 F.3d at 1259 ("[F]or ACCA purposes, district courts may determine both the existence of prior convictions and the factual nature of those convictions, including whether they were committed on different occasions, so long as they limit themselves to Shepard-approved documents.").
In this case, the charging documents submitted by the government show that Kirk pled guilty to burglarizing seven different dwellings, located at seven different addresses and owned by seven different people, on or about three separate dates — May 5, August 16, and August 19, 2002. The government therefore used Shepard-approved documents to prove that Kirk's prior offenses arose from separate and distinct criminal episodes that were temporally distinct in that they were committed on at least three different dates. See Weeks, 711 F.3d at 1261; Proch, 637 F.3d at 1265-66. Accordingly, Kirk has failed to show that the district court erred in concluding that his prior convictions were for offenses "committed on occasions different from one another."
Kirk's final argument on appeal is that the district court erred in denying his motion for a judgment of acquittal because the government failed to prove that the firearm and ammunition in his possession "substantially affected" interstate commerce. Kirk also argues that § 922(g) is an unconstitutional exercise of Congress's Commerce Clause power as applied to purely intrastate conduct, such as mere possession of a firearm, under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Kirk concedes that these arguments are foreclosed by "Eleventh Circuit precedent directly to the contrary," but he presents the arguments "in order to preserve the issue for further review."
It is unlawful for a convicted felon to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). The Supreme Court, in considering the predecessor statute to § 922(g), held that the interstate commerce element is met by demonstrating a "minimal nexus that the firearm have been, at some time, in interstate commerce." Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977). In Lopez, the Supreme Court held that gun control legislation related to the possession of firearms in school zones was an invalid exercise of
Since Lopez, we have continually held that § 922(g) is not a facially unconstitutional exercise of Congress's Commerce Clause power because unlike the statute at issue in Lopez, § 922(g) contains a jurisdictional requirement. See, e.g., United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir.2011) ("We have repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of Congress's power under the Commerce Clause because it contains an express jurisdictional requirement."); United States v. Scott, 263 F.3d 1270, 1273 (11th Cir.2001) (reaffirming the holding that "the jurisdictional element of the statute, i.e., the requirement that the felon `possess in or affecting commerce, any firearm or ammunition,' immunizes § 922(g)(1) from [a] facial constitutional attack"); United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir.2001) (upholding the conclusion that "the jurisdictional element of § 922(g) brings it within the commerce powers of the Congress"); United States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.1996) (holding that the jurisdictional element of § 922(g) defeats a facial challenge to the statute even after the Supreme Court's decision in Lopez).
Moreover, we have also held that § 922(g) is not unconstitutional as applied to a defendant who merely possessed a firearm within state lines so long as the government introduces sufficient evidence showing that the firearm has a minimal nexus to interstate commerce, i.e., that the firearm was manufactured, assembled, or sold outside the state or that it travelled in interstate commerce. See, e.g., Jordan, 635 F.3d at 1189 (holding that § 922(g) was not unconstitutional "as applied to a defendant who possessed a firearm only intrastate" because the government showed that the firearm involved was manufactured and assembled outside the state); Dupree, 258 F.3d at 1260 (holding that § 922(g) requires only a minimal nexus to interstate commerce and that the defendant's actions of brandishing in Georgia a firearm that was manufactured in California satisfied the jurisdictional requirement of § 922(g)); McAllister, 77 F.3d at 390 (holding that even in the wake of Lopez, § 922(g) is constitutional as applied to a defendant who merely possessed a firearm within state lines so long as the firearm has a minimal nexus to interstate commerce, an element that was satisfied in that case because the firearm possessed by the defendant had travelled in interstate commerce).
Here, the government produced evidence that the firearm and ammunition Kirk possessed in Florida were manufactured outside the state and therefore had necessarily traveled in interstate commerce. Given our undisturbed precedent, such evidence was sufficient to demonstrate the minimal nexus between the firearm and ammunition Kirk possessed and interstate commerce. Therefore, the jurisdictional element of § 922(g) was satisfied, and the statute is not unconstitutional as applied to Kirk's conduct. Accordingly, the district court did not err in denying Kirk's motion for a judgment of acquittal, and Kirk's conviction and sentence are
AFFIRMED.