Case: 17-12699 Date Filed: 10/28/2019 Page: 1 of 7
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12699 Non-Argument Calendar ________________________
D.C. Docket No. 6:15-cr-00162-GAP-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAN REED,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 28, 2019)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before WILLIAM PRYOR, NEWSOM and JULIE CARNES, Circuit Judges.
WILLIAM PRYOR, Circuit Judge: Case: 17-12699 Date Filed: 10/28/2019 Page: 2 of 7
This appeal on remand from the Supreme Court requires us to revisit Dan
Reed’s conviction for possessing a firearm as a felon. After we affirmed Reed’s
conviction, United States v. Reed, 752 F. App’x 851 (11th Cir. 2018), the Supreme
Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). The
Court then granted Reed’s petition, vacated our judgment, and remanded his appeal
for reconsideration in the light of Rehaif. At our direction, the parties filed
supplemental letter briefs addressing the effect of Rehaif on Reed’s conviction.
Reed asks that we vacate his conviction or, in the alternative, grant him a new trial
because Rehaif made plain that errors occurred when his indictment failed to
allege, his jury was not instructed to find, and the government was not required to
prove that he knew he was a felon when he possessed the firearm. The United
States argues that we must “when addressing plain error . . . evaluate a case . . . by
viewing such a claim against the entire record,” United States v. Young, 470 U.S.
1, 16 (1985), and that the record establishes that Reed knew of his status as a felon.
Because we conclude that Reed cannot establish the errors affected his substantial
rights, see Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016), we
affirm his conviction.
I. BACKGROUND
Before trial, Reed stipulated that, “at the time of the alleged crime, [he]
previously had been convicted of a felony offense, that is, a crime punishable by
2 Case: 17-12699 Date Filed: 10/28/2019 Page: 3 of 7
imprisonment for a term in excess of one year” and that he “never has had his civil
rights restored, including the right to keep and bear firearms and ammunition . . . .”
Based on Reed’s stipulation, the United States redacted from Reed’s indictment the
information about his eight prior felony convictions in Volusia County, Florida. 18
U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1).
During trial, Reed acknowledged that he was not allowed to have a gun and
asserted an affirmative defense of justification. When asked during cross-
examination if “you knew you weren’t supposed to have that gun,” Reed answered,
“Yes, sir.” Reed argued that he was entitled to arm himself while quarreling with
his neighbor after having a similar encounter the night before with unknown men
who battered him. See Reed, 752 F. App’x at 853.
After both parties rested, the district court instructed the jury that it had to
find beyond a reasonable doubt that Reed “knowingly possessed” the firearm after
being convicted of a felony and reminded them that the “stipulation . . . established
that the Defendant had been convicted of a prior felony.” The district court also
instructed the jury on Reed’s defense of justification. The jury found Reed guilty
of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1).
Reed’s presentence investigation report stated that he had been incarcerated
for lengthy terms before possessing the firearm. Reed, 752 F. App’x at 853. Reed
did not object to the statements in his report that he had served more than 18 years
3 Case: 17-12699 Date Filed: 10/28/2019 Page: 4 of 7
in prison following his conviction in 1990 for unlawfully possessing with intent to
sell or deliver a controlled substance. The district court also found, over Reed’s
objection, that he had served 30 months of imprisonment following his conviction
in 1987 for unlawfully selling or delivering a controlled substance. Id. at 854.
II. STANDARD OF REVIEW
We review for plain error Reed’s new challenges to his indictment, United
States v. Sperrazza, 804 F.3d 1113, 1118–19 (11th Cir. 2015), the jury instructions,
United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013), and the sufficiency
of the evidence, United States v. Baston, 818 F.3d 651, 664 (11th Cir. 2016).
III. DISCUSSION
The Supreme Court clarified in Rehaif that, “in a prosecution under 18
U.S.C. § 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.
As a result, Rehaif abrogated United States v. Jackson, 120 F.3d 1226, 1229 (11th
Cir. 1997), which held that a defendant does not have to know of his status as a
felon to prove that he knowingly possessed a firearm after a felony conviction.
Because Reed is on direct appeal, Rehaif applies to his conviction. See Johnson v.
United States, 520 U.S. 461, 467 (1997).
4 Case: 17-12699 Date Filed: 10/28/2019 Page: 5 of 7
Our review is for plain error. United States v. Vonn, 535 U.S. 55, 58–59
(2002). Its test “places a daunting obstacle before [Reed]” in seeking relief from
his conviction. United States v. DiFalco, 837 F.3d 1207, 1221 (11th Cir. 2016)
(citation and internal quotation marks omitted). Reed must prove that an error
occurred that was both plain and that affected his substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If he does so, we may, in our discretion,
correct the plain error if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (alteration adopted) (citation and internal
quotation marks omitted).
As the “reviewing court[, we] may consult the whole record when
considering the effect of any error on [Reed’s] substantial rights.” Vonn, 535 U.S.
at 59; see also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)
(observing that a court reviewing for plain error is “informed by the entire
record.”). We cannot “properly evaluate [Reed’s claims of error] except by
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Case: 17-12699 Date Filed: 10/28/2019 Page: 1 of 7
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12699 Non-Argument Calendar ________________________
D.C. Docket No. 6:15-cr-00162-GAP-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAN REED,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(October 28, 2019)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before WILLIAM PRYOR, NEWSOM and JULIE CARNES, Circuit Judges.
WILLIAM PRYOR, Circuit Judge: Case: 17-12699 Date Filed: 10/28/2019 Page: 2 of 7
This appeal on remand from the Supreme Court requires us to revisit Dan
Reed’s conviction for possessing a firearm as a felon. After we affirmed Reed’s
conviction, United States v. Reed, 752 F. App’x 851 (11th Cir. 2018), the Supreme
Court issued its decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). The
Court then granted Reed’s petition, vacated our judgment, and remanded his appeal
for reconsideration in the light of Rehaif. At our direction, the parties filed
supplemental letter briefs addressing the effect of Rehaif on Reed’s conviction.
Reed asks that we vacate his conviction or, in the alternative, grant him a new trial
because Rehaif made plain that errors occurred when his indictment failed to
allege, his jury was not instructed to find, and the government was not required to
prove that he knew he was a felon when he possessed the firearm. The United
States argues that we must “when addressing plain error . . . evaluate a case . . . by
viewing such a claim against the entire record,” United States v. Young, 470 U.S.
1, 16 (1985), and that the record establishes that Reed knew of his status as a felon.
Because we conclude that Reed cannot establish the errors affected his substantial
rights, see Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016), we
affirm his conviction.
I. BACKGROUND
Before trial, Reed stipulated that, “at the time of the alleged crime, [he]
previously had been convicted of a felony offense, that is, a crime punishable by
2 Case: 17-12699 Date Filed: 10/28/2019 Page: 3 of 7
imprisonment for a term in excess of one year” and that he “never has had his civil
rights restored, including the right to keep and bear firearms and ammunition . . . .”
Based on Reed’s stipulation, the United States redacted from Reed’s indictment the
information about his eight prior felony convictions in Volusia County, Florida. 18
U.S.C. §§ 922(g)(1), 924(a)(2), 924(e)(1).
During trial, Reed acknowledged that he was not allowed to have a gun and
asserted an affirmative defense of justification. When asked during cross-
examination if “you knew you weren’t supposed to have that gun,” Reed answered,
“Yes, sir.” Reed argued that he was entitled to arm himself while quarreling with
his neighbor after having a similar encounter the night before with unknown men
who battered him. See Reed, 752 F. App’x at 853.
After both parties rested, the district court instructed the jury that it had to
find beyond a reasonable doubt that Reed “knowingly possessed” the firearm after
being convicted of a felony and reminded them that the “stipulation . . . established
that the Defendant had been convicted of a prior felony.” The district court also
instructed the jury on Reed’s defense of justification. The jury found Reed guilty
of being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1).
Reed’s presentence investigation report stated that he had been incarcerated
for lengthy terms before possessing the firearm. Reed, 752 F. App’x at 853. Reed
did not object to the statements in his report that he had served more than 18 years
3 Case: 17-12699 Date Filed: 10/28/2019 Page: 4 of 7
in prison following his conviction in 1990 for unlawfully possessing with intent to
sell or deliver a controlled substance. The district court also found, over Reed’s
objection, that he had served 30 months of imprisonment following his conviction
in 1987 for unlawfully selling or delivering a controlled substance. Id. at 854.
II. STANDARD OF REVIEW
We review for plain error Reed’s new challenges to his indictment, United
States v. Sperrazza, 804 F.3d 1113, 1118–19 (11th Cir. 2015), the jury instructions,
United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013), and the sufficiency
of the evidence, United States v. Baston, 818 F.3d 651, 664 (11th Cir. 2016).
III. DISCUSSION
The Supreme Court clarified in Rehaif that, “in a prosecution under 18
U.S.C. § 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.
As a result, Rehaif abrogated United States v. Jackson, 120 F.3d 1226, 1229 (11th
Cir. 1997), which held that a defendant does not have to know of his status as a
felon to prove that he knowingly possessed a firearm after a felony conviction.
Because Reed is on direct appeal, Rehaif applies to his conviction. See Johnson v.
United States, 520 U.S. 461, 467 (1997).
4 Case: 17-12699 Date Filed: 10/28/2019 Page: 5 of 7
Our review is for plain error. United States v. Vonn, 535 U.S. 55, 58–59
(2002). Its test “places a daunting obstacle before [Reed]” in seeking relief from
his conviction. United States v. DiFalco, 837 F.3d 1207, 1221 (11th Cir. 2016)
(citation and internal quotation marks omitted). Reed must prove that an error
occurred that was both plain and that affected his substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If he does so, we may, in our discretion,
correct the plain error if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (alteration adopted) (citation and internal
quotation marks omitted).
As the “reviewing court[, we] may consult the whole record when
considering the effect of any error on [Reed’s] substantial rights.” Vonn, 535 U.S.
at 59; see also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)
(observing that a court reviewing for plain error is “informed by the entire
record.”). We cannot “properly evaluate [Reed’s claims of error] except by
viewing [them] against the entire record,” Young, 470 U.S. at 16, because Federal
Rule of Criminal Procedure 52(b) “authorizes the Courts of Appeals to correct only
particularly egregious errors,” id. at 15 (citation and internal quotation marks
omitted). And “[i]n reviewing criminal cases [like Reed’s], it is particularly
important for appellate courts to relive the whole trial imaginatively and not to
extract from episodes in isolation abstract questions of evidence and procedure.”
5 Case: 17-12699 Date Filed: 10/28/2019 Page: 6 of 7
Id. at 16 (quoting Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter,
J., concurring)). So we consider proceedings that both precede and postdate the
errors about which Reed complains. See Dominguez Benitez, 542 U.S. at 77, 84–85
(identifying statements from the defendant and counsel during a status conference,
“the overall strength of the Government’s case[,] and any possible defenses that
appear from the record” as “[r]elevant evidence” in determining whether a warning
omitted from the Rule 11 colloquy made a difference to the outcome); Vonn, 535
U.S. at 74–76 (instructing the appellate court on remand to consider the entire
record).
Reed has established errors in his indictment and at his trial that Rehaif made
plain. Rehaif made clear that the government must prove that a defendant knew of
his prohibited status when he possessed a firearm or ammunition. 139 S. Ct. at
2194, 2200. The government concedes that plain error occurred when Reed’s
indictment failed to allege that he knew he was a felon and when the jury was not
instructed to find that Reed knew he was a felon. And, as Reed argues, error
occurred when the government was not required to prove that Reed knew he was a
felon.
Nevertheless, Reed cannot “show a reasonable probability that, but for the
error[s], the outcome of [his trial] would have been different.” Molina-Martinez,
136 S. Ct. at 1343 (citation and internal quotation marks omitted). When Reed
6 Case: 17-12699 Date Filed: 10/28/2019 Page: 7 of 7
possessed the firearm, he had been convicted of eight felony convictions in a
Florida court. See Dominguez Benitez, 542 U.S. at 84–85. And the jury could have
inferred that Reed knew he was a felon from his stipulation and from his testimony
that he knew he was not supposed to have a gun. Reed also admitted at sentencing
that he had served a minimum of 18 years in prison before being arrested for
possessing the firearm. See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006) (“It is the law of this circuit that a failure to object to allegations of fact in a
PSI admits those facts for sentencing purposes.”). Because the record establishes
that Reed knew he was a felon, he cannot prove that the errors affected his
substantial rights or the fairness, integrity, or public reputation of his trial.
IV. CONCLUSION
We AFFIRM Reed’s conviction.