Robert Marks v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 22, 2021
• Docket: 20-11601
• Status: Unpublished

Opinion

USCA11 Case: 20-11601 Date Filed: 01/22/2021 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11601 Non-Argument Calendar ________________________

D.C. Docket No. 1:15-cr-00454-TWT-JSA-1

ROBERT MARKS,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent - Appellee. ________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(January 22, 2021)

Before JILL PRYOR, LUCK and MARCUS, Circuit Judges.

PER CURIAM:

Robert Marks, a federal prisoner who pled guilty to, and was convicted of,

one count of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g),

appeals the denial of his 28 U.S.C. § 2255 motion to vacate his conviction. The USCA11 Case: 20-11601 Date Filed: 01/22/2021 Page: 2 of 5

district court granted Marks a certificate of appealability (“COA”) on the issue of

whether he was entitled to relief under Rehaif v. United States, 139 S. Ct. 2191

(2019), which held that a conviction under § 922(g) requires that the defendant knew

of his status as a felon when he possessed a firearm. Marks, who did not appeal his

conviction directly, claims that: (1) Rehaif error is jurisdictional; and (2) his guilty

plea did not waive any Rehaif error. After thorough review, we affirm.

From an appellate jurisdiction standpoint, the scope of review in a § 2255

appeal is limited to issues specified in the COA, but we will read the COA to

encompass procedural issues that must be resolved before we can reach the merits

of the underlying claim. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th

Cir. 2001). We are obligated to inquire into subject matter jurisdiction sua sponte

whenever it may be lacking. Application of Furstenberg Fin. SAS v. Litai Assets

LLC, 877 F.3d 1031, 1033 (11th Cir. 2017). We review de novo whether a district

court had subject matter jurisdiction. Colbert v. United States, 785 F.3d 1384, 1388–

89 (11th Cir. 2015). Under our prior-panel precedent rule, a prior panel’s holding is

binding unless it has been overruled or abrogated by the Supreme Court or by this

Court sitting en banc. In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015).

For an indictment to confer subject matter jurisdiction upon a district court, it

must allege that a defendant committed one or more “offenses against the laws of

the United States.” United States v. Moore, 954 F.3d 1322, 1333 (11th Cir. 2020)

2 USCA11 Case: 20-11601 Date Filed: 01/22/2021 Page: 3 of 5

(quotations omitted). Notably, however, “[t]he absence of an element of an offense

in an indictment is not tantamount to failing to charge a criminal offense against the

United States.” Id. (emphasis added). A defendant’s voluntary guilty plea waives

all non-jurisdictional defects in the proceedings against him. United States v.

Brown, 752 F.3d 1344, 1354 (11th Cir. 2014). A jurisdictional defect, by contrast,

may not be waived or procedurally defaulted, so a defendant need not show cause

and prejudice to collaterally attack a conviction suffering from a jurisdictional

defect. McCoy, 266 F.3d at 1248-49.

It is “unlawful for any person” who has been convicted of “a crime punishable

by imprisonment for a term exceeding one year” to “possess in or affecting

commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Section 924(a)(2)

provides that any person who “knowingly violates” § 922(g) may be imprisoned for

up to ten years. Id. § 924(a)(2).

In Rehaif, the Supreme Court held that, “in a prosecution under . . . § 922(g)

and § 924(a)(2), the Government must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the relevant category of persons

barred from possessing a firearm.” 139 S. Ct. at 2200. However, because Rehaif

“neither stated nor intimated that [§] 922(g) is not a criminal prohibition,” and

because § 924(a)(2) is a penalty provision and “cannot stand alone as the sole

criminal offense,” we’ve rejected the claim that § 924(a)(2) must be included in an

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indictment to confer jurisdiction on the district court. Moore, 954 F.3d at 1337.

Thus, as we concluded in Moore, neither a criminal indictment’s failure to include a

mens rea element in charging a defendant of violating 18 U.S.C. § 922(g), nor that

indictment’s failure to track the language of § 924(a)(2), deprives a district court of

jurisdiction to enter a conviction against a defendant. Id. at 1336–37.

Here, we recognize that the COA encompasses Marks’s argument that the

Rehaif error rendered his guilty plea jurisdictionally deficient, but that argument is

nevertheless without merit. We are bound by our prior panel holding in Moore,

which held that so long as the indictment alleges some conduct sufficient to meet the

low burden of stating a crime against the United States -- like Marks’s indictment

does in this case -- the “mere omission of an element does not vitiate jurisdiction.”

Id. at 1336. On the record before us, the district court had jurisdiction when it

accepted Marks’s plea and convicted him in 2016.

We are also bound by Brown’s holding that a defendant’s voluntary guilty

plea waives all non-jurisdictional defects in the proceedings against him, and by

Moore’s holding that Rehaif error is non-jurisdictional. As a result, we are

compelled to conclude that Marks’s voluntary guilty plea waived any challenge to

his indictment under Rehaif, and we affirm. 1

1 Because Marks’s guilty plea waived any Rehaif error, we do not consider the government’s alternate argument that Marks procedurally defaulted his Rehaif claim nor do we consider Marks’s argument -- raised for the first time on appeal -- that Rehaif error is structural. 4 USCA11 Case: 20-11601 Date Filed: 01/22/2021 Page: 5 of 5

AFFIRMED.