USCA11 Case: 24-10711 Document: 21-1 Date Filed: 03/25/2025 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10711 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KENNETH PHELPS,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:23-cr-00034-MTT-CHW-1 ____________________ USCA11 Case: 24-10711 Document: 21-1 Date Filed: 03/25/2025 Page: 2 of 4

Before LUCK, LAGOA, and KIDD, Circuit Judges.

PER CURIAM: Kenneth Phelps pleaded guilty to possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). He now appeals his conviction and his upward-var- iance sentence of 72 months’ imprisonment on the ground that § 924(c)(1)(A) is unconstitutional as applied to him under the Sec- ond Amendment. Phelps, however, did not bring a Second Amendment challenge to § 924(c)(1)(A) in the district court and in- stead raises this argument for the first time on appeal. After careful review, we affirm.

We typically review de novo the constitutionality of a statute, but constitutional issues raised for the first time on appeal are re- viewed for plain error. See United States v. Valois, 915 F.3d 717, 729 n.7 (11th Cir. 2019); United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (“[W]e review Wright’s challenge regarding the consti- tutionality of § 922(g) for plain error because he raises it for the first time on appeal.”); United States v. Bolatete, 977 F.3d 1022, 1032, 1034, 1036 (11th Cir. 2020) (applying plain-error review to two con- stitutional challenges raised for the first time on appeal, including a challenge under the Second Amendment).1

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24-10711 Opinion of the Court 3 Under plain-error review, we can correct an error only when (1) an error has occurred, (2) the error was plain, (3) the error af- fected substantial rights, and (4) the error seriously affects the fair- ness, integrity, or public reputation of judicial proceedings. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). For an error to be plain, “the legal rule [must be] clearly established at the time the case is reviewed on direct appeal,” United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015), and the error must be “clear

McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001). It is accurate that we have held that a defendant’s claim that an indictment failed to charge a legitimate offense is “jurisdictional,” in the sense that it is not waived upon a plea of guilty. United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011). But a “jurisdictional defect is one that strip[s] the court of its power to act and ma[kes] its judgment void.” McCoy, 266 F.3d 1249 (emphasis added & internal quota- tions omitted). Thus, the question of “whether [a statute] is unconstitutional does not involve” a court’s “jurisdiction,” in the sense of its “statutory or con- stitutional power to adjudicate the case.” Al Bahlul v. United States, 767 F.3d 1, n.6 (D.C. Cir. 2014) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). That is, a district court retains jurisdiction over a case even if “the statute [under which the defendant is indicted] is wholly unconstitutional, or [ ] the facts stated in the indictment do not constitute a crime or are not proven.” United States v. Williams, 341 U.S. 58, 68–69 (1951); see also id. at 66 (“Even the unconstitutionality of the statute under which the proceeding is brought does not oust a court of jurisdiction.”); Cotton, 535 U.S. at 631 (“[T]his Court some time ago departed from [the] view that indictment defects are ‘ju- risdictional.’”). We thus reject Phelps’s contention that we review his consti- tutional challenge—raised for the first time on appeal—de novo.

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Here, Phelps has not shown that the district court plainly erred because he does not point to any case from this Court or the Supreme Court holding that § 924(c)(1)(A) is unconstitutional un- der the Second Amendment. Indeed, Phelps’s own argument is that “[t]his Court has not rejected a Second Amendment challenge to 18 U.S.C. § 924(c)(1)(A) in a published decision.” As we’ve said, “in the absence of explicit language of a statute or rule, an error cannot be plain unless the issue in question has been specifically and directly resolved by on point precedent from the Supreme Court or this Court.” United States v. Moran, 57 F.4th 977, 984 (11th Cir. 2023) (internal quotations omitted). Without any on point precedent directly resolving the issue here, Phelps cannot establish plain error, and his as-applied Second Amendment challenge to § 924(c)(1)(A) must fail. See United States v. King, 73 F.3d 1564, 1572 (11th Cir. 1996) (“We need not discuss the entire plain error test because the second prong of the test—that the alleged error be plain—is not met.”).

Accordingly, for the reasons stated, we affirm Phelps’s con- viction and sentence.

AFFIRMED.