United States v. Deangelo Lenard Johnson

981 F.3d 1171

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 2, 2020
• Docket: 19-10915
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10915 ________________________

D.C. Docket No. 3:18-cr-00090-MMH-JBT-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DEANGELO LENARD JOHNSON,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(December 2, 2020)

Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges.

ROSENBAUM, Circuit Judge:

* Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting by designation. USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 2 of 58

In 1996, Congress prohibited anyone convicted of a misdemeanor that

involved domestic violence from possessing a firearm. See 18 U.S.C. § 922(g)(9).

Senator Frank Lautenberg, who sponsored the legislation, noted that at that time,

each year, somewhere between 1,500 and several thousand women were killed in

domestic-violence incidents involving guns, and guns were present in 150,000 cases

involving domestic violence. 142 Cong. Rec. 22985 (1996) (statement of Sen.

Lautenberg).

Yet, Senator Lautenberg observed, many of the perpetrators of “serious

spousal or child abuse ultimately are not charged with or convicted of felonies. At

the end of the day, due to outdated laws or thinking, perhaps after a plea bargain,

they are, at most, convicted of a misdemeanor.” Id. at 22985. Seeking to “close this

dangerous loophole,” United States v. Hayes, 555 U.S. 415, 426 (2009) (quoting 142

Cong. Rec. 22986 (1996) (statement of Sen. Lautenberg)), Congress banned those

who have been convicted of a “misdemeanor crime of domestic violence”—one

where the victim was essentially a member or former member of the perpetrator’s

family, and the crime necessarily involved physical force—from possessing a

firearm. See 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).

Recently, in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), the

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Supreme Court clarified that a domestic-violence misdemeanant does not violate this

prohibition on firearm possession if he does not know he is a domestic-violence

misdemeanant at the time he possesses a gun. This case raises the question of what

it means for a person to know he is a domestic-violence misdemeanant. As we

explain below, we conclude that a person knows he is a domestic-violence

misdemeanant, for Rehaif purposes, if he knows all the following: (1) that he was

convicted of a misdemeanor crime, (2) that to be convicted of that crime, he must

have engaged in at least “the slightest offensive touching,” United States v.

Castleman, 572 U.S. 157, 163 (2014) (internal citations omitted), and (3) that the

victim of his misdemeanor crime was, as relevant here, his wife.

The record establishes that Defendant-Appellant Deangelo Johnson knew all

these things at the time he was found in possession of a gun. So we reject Johnson’s

challenge to his conviction for being a domestic-violence misdemeanant while

possessing a firearm. We similarly find no merit to his equal-protection and

Commerce Clause arguments. For these reasons, we affirm Johnson’s conviction.

I.

In 2010, law enforcement responded to a call and found that Deangelo

Johnson had “punched, strangled, and threatened to pistol whip” his wife. The

responding officer observed numerous bruises and scratches all over Johnson’s wife.

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Based on Johnson’s conduct, the State of Florida charged him with the felony

crime of domestic violence by strangulation and assault. Represented by counsel,

Johnson engaged in plea negotiations with the state. Ultimately, Johnson pled guilty

to and was convicted of misdemeanor battery against his wife, in violation of Fla.

Stat. § 784.03(1). He eventually was sentenced to six months in jail for this

conviction.1

Eight years later, in 2018, police officers found a gun on the floor of Johnson’s

car while he was being arrested for an outstanding warrant. A federal grand jury

indicted Johnson for having been “previously convicted of a misdemeanor crime of

domestic violence, that is, Domestic Battery,” and knowingly possessing a firearm,

in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). The indictment did not allege

that Johnson knew of his status as a domestic-violence misdemeanant when he

possessed the firearm.

Johnson moved to dismiss his federal indictment for failure to state an offense.

He argued that his Florida offense did not qualify as a misdemeanor crime of

domestic violence for purposes of 18 U.S.C. § 922(g)(9) because he had never lost

his civil rights, and 18 U.S.C. § 921(a)(33)(B)(ii) renders § 922(g)(9) inapplicable

to any person who has been convicted of a misdemeanor crime of domestic violence

1 Initially, Johnson was sentenced to two days in jail and a year of probation. But after two violations of probation, the court revoked his probation and sentenced him to six months in jail. 4 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 5 of 58

but, as relevant here, has had his civil rights restored. Johnson did not challenge the

indictment on the basis that he did not know that he had been convicted of the

misdemeanor in 2010 for battery against his wife.

The district court denied Johnson’s motion to dismiss, relying on Logan v.

United States, 552 U.S. 23 (2007). In Logan, the Supreme Court held that a near-

identical rights-restoration exception in the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 921(a)(20), applied to only those individuals who had had their civil

rights restored but not to those who had never lost their civil rights in the first place.

552 U.S. at 37.

Johnson then waived his right to a jury trial and agreed to a stipulated-facts

bench trial. Under those stipulated facts, Johnson confirmed that he had previously

been convicted of a misdemeanor crime of domestic violence when he pled guilty in

2010 to committing Florida misdemeanor domestic battery against his wife. He also

confirmed that officers later found a pistol on the floor of his car when they arrested

him for an outstanding warrant. The district court made oral findings of fact and

concluded that based on the stipulated facts, Johnson was guilty of violating 18

U.S.C. § 922(g)(9).

Johnson’s presentence investigation report (“PSR”) recommended a total

offense level of 12, with a criminal-history category of II, corresponding to an

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advisory Guidelines sentencing range of 12 to 18 months’ imprisonment. Johnson

did not object to the facts or Guidelines calculations in his PSR.

At Johnson’s sentencing hearing, Johnson argued for a variance to a sentence

of time served plus one day because he did not “know that he was not supposed to

possess a firearm.” Johnson explained that he was unaware of the firearm

prohibition because he was not a convicted felon—and therefore not advised he

could not possess a firearm—and as a misdemeanant, he was not prohibited from

possessing a firearm by Florida law. The district court acknowledged that “this is

an unusual offense in that it isn’t often that individuals end up before the Court

charged with something that they can genuinely say they didn’t know was unlawful,

and that under the circumstances of this case, it is significant.” The court imposed

the sentence Johnson requested, reasoning that “under the somewhat unusual facts

of this case that is an appropriate sentence.”

Johnson timely appealed his conviction. We stayed briefing until the Supreme

Court issued its decision in Rehaif holding that, under 18 U.S.C. § 922(g),

knowledge of status is an element of unlawful possession of a firearm. Johnson now

relies on Rehaif in seeking to vacate his conviction. He asserts that both the

indictment and the stipulated facts at the bench trial were insufficient under Rehaif

because they failed to allege and prove that Johnson knew he was a domestic-

violence misdemeanant. Separately, he argues that Section 922(g) is

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unconstitutional because (1) it violates his equal-protection rights by treating him

less favorably than similarly situated people convicted of misdemeanor crimes of

domestic violence who lost their civil rights and had them restored, and (2) it violates

the Commerce Clause.

We begin with Johnson’s Rehaif arguments. As we have noted, Rehaif

clarified that to convict a defendant of illegal possession of a firearm under Section

922(g), the government must prove that “the defendant knew he possessed a firearm

and also that he knew he had the relevant status when he possessed it.” 139 S. Ct.

at 2194. Johnson’s relevant status under Section 922(g) is that of a domestic-

violence misdemeanant under 18 U.S.C. § 922(g)(9).

For purposes of Section 922(g)(9), 18 U.S.C. § 921(a)(33)(A) defines the term

“misdemeanor crime of domestic violence” as an offense that is a misdemeanor

under federal, state, or tribal law and “has, as an element, the use or attempted use

of physical force, or the threatened use of a deadly weapon, committed by a current

or former spouse, parent, or guardian of the victim . . . .” Under this definition, it is

enough that the victim “was in fact the offender’s spouse (or other relation specified

in [the definition])”—regardless of whether the predicate misdemeanor requires as

an element a domestic relationship between the perpetrator and the victim. Hayes,

555 U.S. at 418.

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As we have noted, Johnson makes two Rehaif-based challenges. First, he

contends that the indictment failed to state an offense because it did not allege that

Johnson knew of his status; and second, Johnson argues that the stipulated facts at

his bench trial were insufficient to prove that he knew his status as a domestic-

violence misdemeanant.

A. We review Johnson’s Rehaif claims for plain error

Before we get to the merits of Johnson’s arguments, we must identify the

applicable standard of review. Generally, we engage in de novo review of challenges

to an indictment or to the sufficiency of the evidence. United States v. Sperrazza,

804 F.3d 1113, 1119 (11th Cir. 2015); United States v. Taylor, 480 F.3d 1025, 1026

(11th Cir. 2007). But when a defendant fails to raise an argument in district court,

we review for plain error. United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.

2019); Sperrazza, 804 F.3d at 1119.

Here, the government asserts that we should not review Johnson’s sufficiency-

of-the-evidence argument at all because he invited error by stipulating that the facts

were sufficient to convict him. We disagree.

Johnson explained in district court that he proceeded to a stipulated bench trial

solely because he did not know that he was prohibited under Section 922(g) from

possessing a firearm, since misdemeanants in Florida are not deprived of their civil

rights. Because the elements of Section 922(g) were understood (and were applied

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under binding precedent, see United States v. Jackson, 120 F.3d 1226, 1229 (11th

Cir. 1997), abrogated by Rehaif, 139 S. Ct. 2191), at the time Johnson stipulated,

the facts to which he agreed were sufficient to prove the elements of Section 922(g).

Of course, since Johnson’s bench trial and sentencing, Rehaif has clarified the

elements of Section 922(g). Now, there can be no doubt that under Rehaif, the

elements the district court accounted for were incomplete. Johnson’s

acknowledgement that the evidence he stipulated to was sufficient to satisfy the

elements of the crime as laid out by then-binding precedent does not preclude him

from asserting that the stipulation is not sufficient in light of the Supreme Court’s

subsequent issuance of Rehaif.2

But while Johnson did not invite error in the district court, neither did he raise

the claims that he now makes on appeal. Johnson argues that he did raise them when

he moved to dismiss his indictment and when defense counsel discussed his lack of

knowledge at sentencing. We are not persuaded.

Johnson contended in his motion to dismiss the indictment that he had not

committed a misdemeanor crime of domestic violence as 18 U.S.C. § 921(a)(33)(a)

defines the term because he fell under an exception that Section 921(a)(33)(B)(ii)

recognizes. As we have mentioned, that section renders non-qualifying an

otherwise-qualifying predicate offense under Section 922(g)(9) if, as relevant to

2 Rehaif applies to Johnson’s case on direct appeal. See Reed, 941 F.3d at 1021. 9 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 10 of 58

Johnson’s argument, the defendant’s civil rights have been restored since he was

convicted. Johnson did not argue that his civil rights had been restored. Rather,

because Johnson never lost his civil rights in connection with his conviction for a

Florida domestic-violence misdemeanor, he contended that he was covered by the

Section 921(a)(33)(B)(ii) exception.

That argument is different from Johnson’s Rehaif-based contention on appeal

that the indictment is insufficient because it fails to charge that Johnson knew he was

a domestic-violence misdemeanant. In fact, as the district court ruled and as we

explain later, see infra at II.C.2, a different Supreme Court case from Rehaif—

Logan, 552 U.S. 23—forecloses Johnson’s Section 921(a)(33)(B)(ii)-based

argument. To be clear, at no point in the district-court proceedings did Johnson ever

argue or even suggest that he was unaware that he had previously been convicted in

Florida of a misdemeanor for engaging in physical violence against his wife.

Similarly, at Johnson’s sentencing hearing, Johnson contended only that he

did not know that he was not allowed to possess a gun because no one ever told him

and because Florida never abrogated his civil rights. Johnson did not make the

separate argument that he did not know that he had been convicted of a misdemeanor

for using physical force against his wife.

Because Johnson did not raise his Rehaif arguments in the district court, we

review for plain error. Reed, 941 F.3d at 1020. To establish plain error, Johnson

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must show that (1) an error occurred, (2) the error was plain or obvious, and (3) it

affected his substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005). If Johnson can demonstrate the three plain-error components, we may

exercise our discretion to remedy the error, but only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

B. Rehaif error occurred in the district court, and that error was plain

1. Johnson’s indictment contained error, and that error is plain

We begin by reviewing the district court’s order on Johnson’s motion to

dismiss his indictment for plain error. An error is plain if it is “obvious” and “clear

under current law.” United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017)

(internal citation omitted).

Indictments must “contain[] the elements of the offense charged and fairly

inform[] a defendant of the charge against which he must defend, and, second,

enable[] him to plead an acquittal or conviction in bar of future prosecutions for the

same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). Here, we focus

on the first half of this equation, which requires an indictment to include the elements

of the crime charged. Id.

Under current law, as clarified by Rehaif, to establish a violation of Section

922(g)(9), the government must prove all of the following elements: (1) the

defendant knew he possessed (2) a “firearm” (as defined by the statute) that (3) had

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traveled in interstate commerce, and (4) he knew he had previously been convicted

of a misdemeanor crime of domestic violence. See Rehaif, 139 S. Ct. at 2195-96.

Johnson’s indictment fails to allege that he knew he was a domestic-violence

misdemeanant when he possessed the firearm in this case. So it is insufficient and

plainly erroneous under current law.

The government argues that this omission does not constitute plain error

because Johnson’s indictment tracked the language of Sections 922(g)(9) and

924(a)(2), including the knowledge element. And it is true that the indictment did

charge, in relevant part, that Johnson, “having been previously been convicted of a

misdemeanor crime of domestic violence, that is, Domestic Battery, in the County

Court, Duval County, Florida, on or about June 14, 2010, did knowingly possess, in

and affecting interstate commerce, a firearm that is, a Cobra, .380 caliber pistol.”

(emphasis added). But inconsistent with Rehaif, the indictment charged knowledge

with respect to only Johnson’s possession of the firearm, not as to Johnson’s status

as a domestic-violence misdemeanant.

While it is generally enough for an indictment to track statutory language, as

Johnson’s did, simply tracking statutory language does not suffice when the resulting

indictment fails to “fully, directly, and expressly, without any uncertainty or

ambiguity, set forth all the elements necessary to constitute the offen[s]e intended to

be punished.” Hamling, 418 U.S. at 117 (citation and internal quotation marks

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omitted). That was certainly the case here, since Section 922(g)’s phrasing did not

materially change after we decided Jackson, where we held that Section 922(g) did

not require the defendant to know his relevant status to be found guilty. 120 F.3d at

1229. Against that background, no indictment that merely tracked Section 922(g)’s

statutory language could unambiguously set forth all elements of the crime. And for

that reason, the indictment was plainly erroneous. See Reed, 941 F.3d at 1021

(finding plain error when the “indictment failed to allege that he knew [his status]”);

United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020) (same). 3

The government also tries to shoehorn this case into fitting within our

decisions in United States v. Gray, 260 F.3d 1267 (11th Cir. 2001), and United States

v. Woodruff, 296 F.3d 1041 (11th Cir. 2002). We determined that the indictments at

stake there were not defective even though they did not allege a mens rea element.

But Gray and Woodruff are materially different. Each dealt with an

indictment for Hobbs Act robbery that alleged that the defendant “unlawfully”

3 In one of their letters of supplemental authority, the government asserts that Moore supports its position because we stated that “[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.” 954 F.3d at 1333. We are disappointed by this argument, which relies on an out-of-context quotation to mischaracterize our opinion in Moore. The language that the government invokes from Moore comes from our analysis explaining that a Rehaif defect in an indictment does not deprive the district court of subject-matter jurisdiction, see id. at 1332-37; it has nothing to do with the point for which the government relies on it. In fact, in that same case, we held that the Rehaif defect in the indictment there, which similarly tracked the applicable statutory language, see id. at 1332-33, was plain error because it failed to specifically charge that the defendant knew of his status, see id. at 1337. There, though, the government conceded plain error. 13 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 14 of 58

“t[ook]” “property” “by means of . . . force, violence, and fear of injury.” Gray, 260

F.3d at 1283; Woodruff, 296 F.3d at 1046. We upheld the sufficiency of those

indictments because “the requisite state of mind may be inferred from other

allegations in the indictment.” Gray, 260 F.3d at 1283; Woodruff, 296 F.3d at 1046.

Indeed, a person cannot take property by means of force, violence, and fear of injury

without knowing he is doing that.

In contrast, a person could hypothetically be convicted of a state-law battery

offense without realizing that it qualified as a misdemeanor crime of domestic

violence. So unlike with the Hobbs Act robbery offenses at issue in Gray and

Woodruff, the knowledge requirement pertaining to Johnson’s status could not be

inferred from the allegations in the indictment. And the rule in Gray and Woodruff

cannot save the indictment here.

2. The lack of evidence in the stipulated facts proving that Johnson knew he was a domestic-violence misdemeanant constituted error, and that error was plain

As for Johnson’s sufficiency-of-the-evidence claim, as the government

appropriately concedes, the error there was plain to the extent that the stipulated facts

did not demonstrate that Johnson had knowledge of his status as a domestic-violence

misdemeanant. As we have explained, that was clearly contrary to the law as we

understand it after Rehaif. See Rehaif, 139 S. Ct. at 2200; Reed, 941 F.3d at 1021.

C. The plain errors did not affect Johnson’s substantial rights

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Having concluded that plain error infected both the indictment and the

sufficiency of the evidence based on the stipulated facts, we consider whether either

of these errors affected Johnson’s substantial rights. To show that an error affected

his substantial rights, Johnson bears the burden of demonstrating a reasonable

probability that, without the error, the outcome of the proceeding would have been

different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); United

States v. Margarita Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018). A reasonable

probability is a “probability sufficient to undermine confidence in the outcome.”

Margarita Garcia, 906 F.3d at 1267 (internal quotation marks omitted). To

determine whether Johnson’s substantial rights have been affected, we review the

entire record. Reed, 941 F.3d at 1021.

Whether the plain errors here had any impact on Johnson’s substantial rights

hinges on the evidence of record showing whether Johnson knew his status—

domestic-violence misdemeanant—when he possessed the gun. If this evidence is

lacking, then Johnson can meet his burden to demonstrate a reasonable probability

that the outcome of his case would not have been the same in the absence of the

errors. But if not, then he cannot establish a reasonable probability that the outcome

of his case would have differed, and his Rehaif challenges fail.

1. Rehaif’s Knowledge-of-Status Requirement

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We begin by identifying what Rehaif’s knowledge-of-status requirement

demands. Rehaif was convicted of possessing a firearm as a non-citizen illegally in

the United States, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Rehaif, 139

S. Ct. at 2194. He argued that he did not know that his presence in the United States

was unlawful. Id. at 2195. The Supreme Court held that the language of Sections

922(g) and 924(a)(2) required proof that when Rehaif possessed the gun, he knew

that he was a non-citizen who was “illegally or unlawfully in the United States.” Id.

at 2198. To explain what it meant by this, the Court pointed to Liparota v. United

States, 471 U.S. 419 (1985), as illustrative of the type of knowledge required.

Rehaif, 139 S. Ct. at 2198.

In Liparota, the defendant challenged his conviction for “knowingly us[ing]

transfer[ring], acquir[ing], alter[ing], or possess[ing] [Food Stamps] in any manner

not authorized by [the statute] or the regulations.” Liparota, 471 U.S. at 420. The

Supreme Court determined that the government had to show not only that the

defendant had used, transferred, acquired, altered, or possessed Food Stamps, but

also that the defendant knew that he was acting in a way that the applicable statute

or regulations did not authorize. Id. at 423-25.

Significantly, though, the Court cautioned, the government did not need to

demonstrate that the defendant “had knowledge of specific regulations governing

food stamp acquisition or possession” that made his transfer or possession of food

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stamps unlawful. Id. at 434. In other words, Liparota did not “create[] a defense of

‘mistake of law.’” Id. at 425 n.9. To explain this concept further, the Court pointed

to the offense of knowing receipt of stolen goods. Id. It noted that not knowing that

receipt of stolen goods is a crime is no defense to that offense, but not knowing the

goods were stolen is. Id.

Given this understanding, it is not surprising that in Elonis v. United States,

575 U.S. 723, ___, 135 S. Ct. 2001, 2010 (2015), the Supreme Court characterized

Liparota as having construed the statute there “to require knowledge of the facts that

made the use of the food stamps unauthorized.”4 And the Court summarized its

cases as having “explained that a defendant generally must ‘know the facts that make

his conduct fit the definition of the offense,’ even if he does not know that those

facts give rise to a crime.” Id. at 2009 (quoting Staples v. United States, 511 U.S.

600, 608 n.3 (1994)).

So for example, in Staples, the Court considered what the government had to

prove to establish a violation of the law that made it illegal for anyone to possess a

machinegun that was not properly registered with the federal government. 511 U.S.

4 Rehaif described the same thing from Liparota a little differently. It said that the Court “required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law.” 139 S. Ct. at 2198. We think Elonis’s characterization better helps to describe the type of knowledge that is required and to avoid the confusion that Rehaif suggests can occur in trying to differentiate between concepts of knowledge of the law and knowledge of the effect of a so-called collateral matter (here, status) under the law. See id. 17 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 18 of 58

at 602. The Court held that the government was required to demonstrate, in relevant

part, that the defendant knew that the weapon he possessed had the characteristics

that caused it to fall within the statutory definition of a machinegun. Id. In other

words, the Court explained, the defendant “must know the facts that make his

conduct illegal . . . .” Id. at 619. But the defendant did not need to know the statutory

definition of a machinegun to be convicted. See id.

To determine what facts Johnson needed to know in light of Rehaif, we now

turn to the statutory definition of “misdemeanor crime of domestic violence” under

Section 921(a)(33). This section includes two subsections. As we will explain,

subsection (a)(33)(A) contains the elements of this offense, while subsection

(a)(33)(B) contains affirmative defenses.

a. Section 921(a)(33)(A) contains the elements that establish whether a person knows he is a domestic-violence misdemeanant

Applying the principles from the teachings of Rehaif, Liparota, Elonis, and

Staples to Section 922(g)(9)’s status requirement, we conclude that, at the time he

possessed the firearm, the defendant must have known that he was convicted of a

misdemeanor, and he must have known the facts that made that crime qualify as a

misdemeanor crime of domestic violence. But Section 922(g)(9) introduces a slight

twist: one of the facts that makes a crime qualify as a misdemeanor crime of

domestic violence is that the crime must categorically require the use or threatened

use of physical force. See 18 U.S.C. § 921(a)(33)(A)(ii); see also Castleman, 572 18 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 19 of 58

U.S. at 168. That may create the misimpression that Rehaif requires technical

knowledge of the law. It doesn’t. The Court did not conclude that Congress

expected a person to have performed a Descamps 5 analysis on his misdemeanor

crime of conviction to determine whether any element of the statute under which he

was convicted categorically required the use or threatened use of “physical force.”

Rather, the knowledge-of-status requirement demands that the defendant have

known only that, to be convicted of his misdemeanor crime, he must have engaged

in or threatened to engage in conduct that constitutes “physical force” as the Supreme

Court has defined it for purposes of a misdemeanor crime of domestic violence under

Section 922(g)(9)—whether or not the defendant actually knew that the Supreme

Court had defined the term and what that definition was. In Castleman, the

Supreme Court established that conduct consisting of “even the slightest offensive

touching” satisfies Section 921(A)(33)(a)(ii)’s definition of “physical force.” 572

U.S. at 163 (internal citation omitted).

So as relevant here, to satisfy Rehaif’s knowledge-of-status requirement under

Section 922(g)(9), the evidence must establish that Johnson knew all the following:

(1) he had been convicted of a misdemeanor under state law, 18 U.S.C. §

921(a)(33)(A)(i); (2) to be convicted of that misdemeanor, he must have knowingly

5 Descamps v. United States, 570 U.S. 254 (2013). 19 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 20 of 58

or recklessly6 engaged in at least “the slightest offensive touching”; 7 and (3) the

victim was his current or former spouse at the time he committed the crime, 18 U.S.C

§ 921(a)(33)(A)(ii). When we review the record for these things, we keep in mind

that there need not be “extraordinary evidence that would conclusively demonstrate

[Johnson’s] state of mind. Rather, as in any other criminal prosecution requiring

mens rea, [state of mind may be proven] by reference to facts and circumstances

surrounding the case . . . .” Liparota, 471 U.S. at 434; see also Ratzlaf v. United

States, 510 U.S. 135, 149 n.19 (1994) (“A jury may, of course, find the requisite

knowledge on defendant’s part by drawing reasonable inferences from the evidence

. . . .”).

b. Section 921(a)(33)(B) does not set forth elements of what it means for a person to know he is a domestic-violence misdemeanant

Before we leave this discussion to evaluate the evidence of record and

determine whether it sufficiently establishes that Johnson had the necessary

knowledge, we pause to explain why, in demonstrating a domestic-violence

misdemeanant’s knowledge of his status, the government does not bear the burden

6 See Voisine v. United States, 136 S. Ct. 2272, 2282 (2016). 7 The Dissent asserts that Rehaif requires the government to “prove the defendant was aware that his prior conviction included the element of use or attempted use of force.” Dissent at 50. We don’t disagree with this principal. We just believe that to prove knowledge that the prior conviction included an element of use or attempted use of physical force, the government must show that the defendant knew that his prior offense necessarily required for conviction (i.e., an element) that he engaged in at least “the slightest offensive touching”—the definition the Supreme Court has identified for the meaning of “physical force” in Section 921(a)(33). See Castleman, 572 U.S. at 163. 20 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 21 of 58

of proving the misdemeanant’s knowledge of the items specified in Section

921(a)(33)(B).

Up until now, we have discussed Section 921(a)(33)(A) primarily. But

Section 921(a)(33) also contains a subparagraph (B). That paragraph provides,

(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

We now explain how Section 921(a)(33)(B) fits into the legislative scheme.

We see two possibilities: (1) Section 921(a)(33)(B) sets forth elements of the

definition of “misdemeanor crime of domestic violence,” or (2) it states what are

effectively affirmative defenses. The difference between an element and an

affirmative defense is important: while the government must prove knowledge,

21 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 22 of 58

“[w]here affirmative defenses are created through statutory exceptions, the ultimate

burden of persuasion remains with the prosecution, but the defendant has the burden

of going forward with sufficient evidence to raise the exception as an issue.” United

States v. Larouche, 723 F.2d 1541, 1543 (11th Cir. 1984). So while the evidence

must be enough to establish all the elements of knowledge, it need not prove that

affirmative defenses did not apply, unless the defendant first introduced evidence

that one did.

Neither Johnson nor the government makes any specific argument that

Section 921(a)(33)(B) sets forth elements for proving a person knows he is a

domestic-violence misdemeanant. 8 And we agree with their apparent implicit

conclusion that Section 921(a)(33)(B) represents what are effectively affirmative

defenses, since as we explain below, both our test for assessing whether something

constitutes an element and our precedent require that answer.

8 The Dissent suggests that the parties do not raise this issue and indicates its preference that we not decide this issue. See Dissent at 42 n.1. We don’t think that is a tenable option under the circumstances here. While no party specifically argues that the Section 921(a)(33)(B) provisions do or do not constitute elements of a “misdemeanor crime of domestic violence” under Section 921(a)(33), Johnson most assuredly does contend that the Rehaif errors here constituted plain errors that affected his substantial rights because, Johnson claims, the government did not establish that he knew he was a domestic-violence misdemeanant. To ascertain whether that is the case, we must first identify what the evidence of record was required to show to demonstrate whether Johnson knew he was a domestic-violence misdemeanant. That requires us to determine what parts of Section 921(a)(33) specify elements of the definition of “misdemeanor crime of domestic violence.” Assuming without deciding that Section 921(a)(33)(B) sets forth affirmative defenses is not consonant with evaluating whether the plain errors here affected Johnson’s substantial rights, since if the Section 921(a)(33)(B) components were elements, the government would be required to prove them, and we would need to study the record to see whether it contained sufficient evidence to establish each of these components. 22 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 23 of 58

To evaluate whether a statutory exception serves as an element of a crime, we

consider three factors. United States v. Kloess, 251 F.3d 941, 944 (11th Cir. 2001).

We start with the statutory language and structure to see whether they yield any clues

about the exception’s role. Id. Second, we review the statute’s legislative history to

learn whether Congress intended for the exception to serve as an element of the

crime. Id. And third, we assess whether the government is in a good position to find

evidence that could prove the exception’s applicability. 9 Id.

Beginning with the statutory language and structure, we first observe that

Section 921(a)(33) is divided into two parts: (A) and (B). Subparagraph (A) begins,

“Except as provided in subparagraph (C),[ 10] the term ‘misdemeanor crime of

domestic violence’ means an offense that— . . . .” Subparagraphs (B)(i) and (B)(ii)

each start, “A person shall not be considered to have been convicted of such an

offense for purposes of this chapter,” “unless,” in the case of subparagraph (B)(i),

and “if,” in the case of subparagraph (B)(ii), certain conditions exist. Perhaps these

9 The Dissent takes issue with this third factor—whether the government is in a good position to find evidence that could prove the exception’s applicability. See Dissent at 42 n.1. But our precedent has adopted this factor as part of the test for whether a provision constitutes an element or an affirmative defense, and we are bound by our prior-precedent rule to follow that precedent. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Plus, as we have noted, the prosecution still has the ultimate burden of persuasion on affirmative defenses. Larouche, 723 F.2d at 1543. 10 Section 921(a)(33) does not contain a subparagraph (C). But as we discuss above, subparagraph (B) does set forth statutory exceptions to when a person may be considered to have been convicted of a “misdemeanor crime of domestic violence.” We therefore construe the reference to subparagraph (C) to be a typographical error intended to refer to subparagraph (B). 23 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 24 of 58

words could indicate congressional intent to make the subparagraph (B) factors

elements of the definition of “misdemeanor crime of domestic violence.” But based

on the rest of our analysis, we don’t think so.

According to its statutory language, the purpose of subparagraph (A) is to state

what the term “misdemeanor crime of domestic violence” means. See 18 U.S.C. §

921(a)(33)(A) (“the term ‘misdemeanor crime of domestic violence’ means an

offense that . . .”). Congress did not place the provisions of subparagraphs (A) and

(B) in a single section—though it could have. We think that separating the

subparagraph (A) provisions from those in subparagraph (B) suggests that Congress

envisioned different roles for the two subparagraphs. Based on the structure

Congress chose, we believe Congress viewed subparagraph (A) as setting forth the

elements of a “misdemeanor crime of domestic violence” and subparagraph (B) as

articulating what are effectively affirmative defenses.

As for the legislative history, we found statements from a single Senator

stating his view that subparagraph (B) “has no real substantive effect” and “really

does not change anything,” 142 Cong. Rec. 11842 (Statement of Sen. Lautenberg).

And we found a Congressional Research Service report published a few months after

the bill passed, characterizing Section 921(a)(33)(B)(i) as “statutory defenses to the

validity of the predicate conviction.” Cong. Rsch. Serv., Gun Ban for Persons

Convicted of Misdemeanor Crime of Domestic Violence: Ex Post Facto Clause and

24 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 25 of 58

Other Constitutional Issues (Dec. 30, 1996). Though both suggest that the

subparagraph (B) components are intended to be defenses and not elements, we

haven’t found anything that purports to be indicative of the sense of the Congress.

So we do not consider legislative history in our analysis.

When we look to whether the government is in a good position to prove the

exculpatory exceptions set forth in subparagraph (B), we conclude that relative to

the defendant, it is not. In explaining why, we start with subparagraph (B)(ii), which

excepts from the definition of “misdemeanor crime of domestic violence” any

otherwise qualifying conviction that has been “expunged or set aside, or is an offense

for which the person has been pardoned or has had civil rights restored.” 18 U.S.C.

§ 921(a)(33)(B)(ii).

We have previously analyzed a similar exception to determine whether it was

an element or an affirmative defense. In United States v. Jackson, 57 F.3d 1012

(11th Cir. 1995), we looked at 18 U.S.C. § 921(a)(20)’s definition of “crime

punishable by imprisonment for a term exceeding one year.” At that time, the statute

said,

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 25 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 26 of 58

Jackson, 57 F.3d at 1015 (quoting 18 U.S.C. § 921(a)(20) (West Supp. 1994)

(emphasis added by Jackson Court)).

We concluded that the italicized part of the statutory defenses was not an

element. See id. at 1016-17. In reaching this conclusion, we quoted the Tenth

Circuit for the proposition that the defendant is in a better position than the

government to show that his conviction has been expunged, his civil rights have been

restored, or he has been pardoned:

As a practical matter, requiring the government to negate the possibility, in every § 922(g)(1) case, that each defendant’s prior convictions had been expunged or set aside, that a pardon had been granted, or that civil rights had been restored, would impose an onerous burden. A defendant ordinarily will be much better able to raise the issue of whether his prior convictions have been expunged or set aside, whether a pardon has been granted, or whether civil rights have been restored.

Id. at 1016 (quoting United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994)).

We, of course, are bound by Jackson. See United States v. Steele, 147 F.3d 1316,

1318 (11th Cir. 1998) (en banc). So we conclude that the defendant is better situated

than the government to demonstrate any of the defenses listed under subparagraph

(B)(ii).

That brings us back to Section 921(a)(33)(B)(i). As a reminder, that provision

excepts from the definition of “misdemeanor crime of domestic violence”

convictions where the defendant was not represented by (or did not knowingly and

intelligently waive the right to be represented by) counsel and those where the 26 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 27 of 58

defendant was entitled to be tried by a jury but was not and did not knowingly and

intelligently waive the right to try the case to a jury.

Although we focused on a restoration-of-civil-rights exception in Jackson, we

also relied on another of our precedents, United States v. Ruo, 943 F.2d 1274, 1276

(11th Cir. 1991), which helps explain why it would also be harder for the government

to shoulder the burden of demonstrating the exceptions in subparagraph (B)(i) here.

We cited Ruo for the proposition that as a practical matter, it makes sense for the

defendant to bear the weight of demonstrating defects in prior convictions. Id. We

explained,

[U]nder § 924(e), the burden is properly placed on the defendant raising the challenge to show the constitutional invalidity of the prior convictions. Any given conviction might suffer any of a myriad of constitutional defects. It would approach the absurd to undertake to prove guilt all over again in every predicate conviction . . . . Instead, the government’s burden is properly met when it introduces evidence that there are at least three prior violent felony convictions. The defendant must then point out any defects in a particular prior conviction.

Jackson, 57 F.3d at 1016 (quoting Ruo, 943 F.2d at 1276). Though Section 924(e)

did not list exceptions built into it, the point is that we have previously concluded

that the defendant is in the better position to know of the facts subparagraph (B)(i)

says remove a conviction from the definition of “misdemeanor crime of domestic

violence.”

27 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 28 of 58

Plus, returning for a moment to our first consideration—the language and

structure of the statute—that subsections (i) and (ii) both appear under subparagraph

(B) suggests that Congress viewed the two provisions to have a similar function in

the overall structure of Section 922(a)(33). So since subsection (B)(ii) is an

affirmative defense, it is more likely that subsection (B)(i) is as well.

In short, we conclude that the government does not have an affirmative

obligation to prove or disprove the defendant’s knowledge of the components listed

in subparagraph (B) to demonstrate that the defendant knew he was a domestic-

violence misdemeanant, unless the defendant first brings forward evidence

suggesting that his prior conviction is excepted from the definition of “misdemeanor

crime of domestic violence.”

2. The record establishes that, for purposes of Rehaif’s knowledge requirement, Johnson knew he was a domestic-violence misdemeanant

Now that we’ve established what knowledge a domestic-violence

misdemeanant must possess under Rehaif, we consider whether the record here

demonstrates that Johnson had that knowledge at the time he was found with the

firearm in this case. To make this determination, we look here to Johnson’s

stipulation at trial and the undisputed facts in his PSR, which the district court

adopted as factual findings. As we have explained, when a defendant does not object

to a district court’s factual findings, he is bound by them and may not argue that they

contained error. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). 28 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 29 of 58

Review of these documents reveals that the record includes sufficient evidence to

establish that Johnson had the requisite knowledge of his status as a domestic-

violence misdemeanant when he was found with the gun in his possession.

First, Johnson knew at the time he possessed the gun that he had been

convicted of the misdemeanor crime of battery under Florida Statute § 784.03(1).

We know this because he stipulated at the bench trial that he had pled guilty to the

charge of “domestic battery” under the laws of the State of Florida, 11 and Johnson’s

Florida conviction identified the statute of conviction as Florida Statute §

784.03(1)(a), Florida’s battery statute. Johnson’s PSR states that he was originally

charged with domestic battery by strangulation and assault, which Florida Statute

§ 784.041 renders a felony. That he eventually pled to the misdemeanor instead also

supports the notion that he knew he was convicted of a misdemeanor under Florida

law. Plus, Johnson ultimately spent six months in jail as a result of that conviction—

11 The Dissent seems to suggest that Johnson could not have known these things at the time he possessed the firearm because the evidence that proves he did came from his stipulation at the bench trial, which occurred after he possessed the gun. See Dissent at 51 (e.g., “[N]either [the stipulation nor the PSR] show that Mr. Johnson ‘knew . . . when he possessed’ the firearm that he was a domestic-violence misdemeanant.”) (quoting Rehaif, 139 S. Ct. at 2194 (emphasis added)). We respectfully disagree. In this case, the contents of the stipulation and the PSR identify what Johnson knew at the time that he pled guilty to the underlying misdemeanor crime of domestic violence. For example, he knew at the time he pled guilty to the misdemeanor that he was pleading guilty to a misdemeanor because, the stipulation shows, he pled down from a felony, and he eventually spent six months in jail for his conviction. To spend time in jail for this offense, it must have been a misdemeanor or a felony. And he stated he knew it was not a felony. Indeed, that was his defense: that he was not told that he could not possess a firearm because he had not been convicted of a felony, and misdemeanants in Florida do not lose their civil rights. So while these facts are documented in the stipulation and PSR, which were created after Johnson possessed the gun, they are sufficient to infer he knew these facts before he possessed the gun. 29 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 30 of 58

another indication that he must have been aware of it. Finally, during this case,

Johnson admitted he knew he was a misdemeanant when he explained that he did

not know he was prohibited from possessing a firearm because he was only a

misdemeanant, and misdemeanants in Florida do not lose their civil rights.

Second, Johnson knew that the misdemeanor to which he pled guilty—

battery—required that he had, at a minimum, recklessly engaged in at least “the

slightest offensive touching.” Castleman, 572 U.S. at 163 (internal citations

omitted). The offense of battery under Florida law requires that the defendant have

“[a]ctually and intentionally touche[d] or str[uck] another person against the will of

the other,” Fla. Stat. § 784.03(1)(a)(1.). A person cannot intentionally touch

someone against her will without, at a minimum, recklessly committing at least “the

slightest offensive touching.”

And Johnson stipulated at his bench trial here that with the assistance of

counsel, he “knowingly and intelligently waived his right to a jury trial and pled

guilty” to the offense of battery. The Supreme Court has explained that a knowing

and intelligent plea requires that the defendant have been informed of the crime’s

elements. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Since Johnson stipulated

that he knowingly and intelligently pled guilty to battery, the record establishes that,

at the time he pled guilty to battery, he knew he was pleading guilty to that offense,

and he knew that one of the elements of that offense required him to have “[a]ctually

30 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 31 of 58

and intentionally touche[d] or str[uck] another person against the will of the other.”

Fla. Stat. § 784.03(1)(a)(1.). That means that the record shows that Johnson knew

an element of his offense of conviction required that he had necessarily engaged in

at least “the slightest offensive touching.”

And third, as we have just noted and as Johnson stipulated to at his bench trial

here, the victim of Johnson’s prior Florida misdemeanor battery was his wife.

Obviously, Johnson knew she was his wife.

So the record establishes that Johnson knew at the time he was found with the

firearm in this case that he had previously been convicted of a misdemeanor crime

of domestic violence. And for that reason, no reasonable probability exists that the

outcome would be different on remand.12 We therefore conclude that the plain errors

12 The Dissent argues that our conclusion creates a split with the Seventh Circuit’s decision in United States v. Triggs, 963 F.3d 710 (7th Cir. 2020), because “‘complexity of the statutory definition’ of a misdemeanor crime of domestic violence gives defendants ‘at least a plausible argument’ that they were unaware they were convicted of such an offense.” Dissent at 57 n.7 (quoting Triggs, 963 F.3d at 716). We think not. True, the Seventh Circuit noted “the complexity of the statutory definition,” but that alone was not the reason why that court remanded the case. Rather, unlike here, in Triggs, the defendant pled guilty to his Section 922(g)(9) offense, and the proceedings that led to the defendant’s underlying domestic-violence misdemeanor conviction were “messy.” Id. at 716. So the Seventh Circuit was able to conclude that Triggs had a “colorable argument that he was unaware that he was convicted of a misdemeanor crime of domestic violence,” without ever analyzing what it means for a domestic-violence misdemeanant to know he is a domestic-violence misdemeanant. Id. The record here does not give us that option. Unlike Triggs, Johnson was convicted after a bench trial, not a guilty plea, and the proceedings that led to his conviction for a misdemeanor crime of domestic violence were straight-forward, not “messy.” As a result, we must proceed through the analysis in order, identifying what it means for a domestic-violence misdemeanant to know he is a domestic-violence misdemeanant and then assessing the record to see whether it contains sufficient evidence to establish the defendant’s requisite knowledge. By doing so, we do not create a split with Triggs because Triggs’s decision to remand rested on “the complexity of the statutory definition” in combination with the “messy” state-court-conviction record. 31 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 32 of 58

in the indictment and in the sufficiency of the evidence stipulated to at the bench

trial did not affect Johnson’s substantial rights. 13

We are not persuaded by Johnson’s contentions to the contrary. Johnson’s

arguments rest mainly on the fact that he did not “know he was prohibited from

federal possession of a firearm.” He points to the fact that his Florida conviction

never resulted in the loss of his civil rights, including his right to possess a firearm

under Florida law. He also relies on the district court’s statement at sentencing that

“this is an unusual offense” because Johnson was charged with something he could

“genuinely say [he] didn’t know was unlawful.”

While we can understand Johnson’s frustration with the situation, these facts

pertain to whether Johnson knew he personally was prohibited from possessing a

firearm under federal law, not whether he knew he committed a misdemeanor crime

of domestic violence. But under Rehaif’s knowledge-of-status requirement, that a

defendant does not recognize that he personally is prohibited from possessing a

13 The Dissent suggests that the outcome here would have been different in the absence of the Rehaif errors because “if Mr. Johnson had known that the government needed to prove he knew his status, it would have made no sense for him to stipulate to that point, instead of putting the government to its proof.” Dissent at 53. We respectfully disagree. The sole reason why Johnson went to trial here was because he never lost his civil rights as a result of his conviction for a misdemeanor crime of domestic violence, and he thought that was a defense under Section 921(a)(33)(B)(ii). Johnson never suggested during his trial here that he did not know that he had been convicted of a misdemeanor crime that had as an element the use of at least “the slightest offensive touching” against his wife. And as we have explained, the record here establishes that Johnson, in fact, knew at the time he possessed the firearm here that he had been convicted of a misdemeanor crime that had as an element the use of at least “the slightest offensive touching” against his wife. 32 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 33 of 58

firearm under federal law is no defense if he knows he has a particular status and

that status happens to be one prohibited by § 922(g) from possessing a firearm.

United States v. Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). Rather, that is a

mistake of law, which is not a defense. See Liparota, 471 U.S. at 425 n.9. As we

have mentioned, “a defendant generally must ‘know the facts that make his conduct

fit the definition of the offense,’ even if he does not know that those facts give rise

to a crime.” Elonis, 575 U.S. at 2009 (quoting Staples, 511 U.S. at 608 n.3).

And to the extent that Johnson continues to assert that Section

921(a)(33)(B)(ii)’s exception to the definition of a domestic-violence misdemeanant

for anyone whose civil rights have been restored applies to him because Florida

never abrogated his rights in the first place, that argument is foreclosed under Logan,

552 U.S. 23. In Logan, the Supreme Court considered a materially indistinguishable

exception that applies to the Armed Career Criminal Act. Id. at 26. The provision

at issue there—18 U.S.C. § 921(a)(20)—authorized the disregarding of a prior

conviction if the conviction “has been expunged, or set aside,” or the offender “has

been pardoned or has had civil rights restored.” Id. Like Johnson, Logan had never

had his civil rights abrogated in the first place, despite his otherwise-qualifying

convictions under the Armed Career Criminal Act. Id. He contended that Section

921(a)(20)’s exception for those who had had their civil rights restored after an

otherwise-qualifying conviction reached him. Id.

33 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 34 of 58

The Supreme Court disagreed. See id. It reasoned that the plain language of

the provision, which used the word “restored,” did not support Logan’s construction.

Id. at 31-32.

For further support, the Court pointed to Section 921(a)(33)(B)(ii), the very

exception Johnson invokes here. The Court noted that it provides, in relevant part,

that “[a] person shall not be considered to have been convicted of [a misdemeanor

crime of domestic violence] [for purposes of Section 922(g)(9)] if the conviction . . .

is an offense for which the person . . . has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under such an offense)

. . . .” Logan, 552 U.S. at 36 (quoting 18 U.S.C. § 921(a)(33)(B)(ii)) (emphasis

added by Logan Court). As the Court explained, “the emphasized parenthetical

qualification shows that the words ‘civil rights restored’ do not cover a person whose

civil rights were never taken away.” 14 Id. So Johnson’s argument that he does not

satisfy the definition of domestic-violence misdemeanant because Florida never

abrogated his civil rights necessarily fails. And since Section 921(a)(33)(B)(ii) does

not make Section 921(a)(33)’s definition of “misdemeanor crime of domestic

14 Senator Lautenberg’s statement on what became codified at 18 U.S.C. § 921(a)(33) reflects, as the Supreme Court in Logan believed, that Congress was aware that most people convicted of a misdemeanor do not lose their civil rights. See 142 Cong. Rec. S11872, S11877- 78 (1996) (Statement of Sen. Lautenberg) (“Loss of [civil] rights generally does not flow from a misdemeanor conviction, and so this language is probably irrelevant to most, if not all, of those offenders covered because of the new ban [on firearm possession by domestic-violence misdemeanants].”). 34 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 35 of 58

violence” inapplicable to someone whose civil rights were never breached in the first

place, there was nothing for the government to refute with respect to the valid

affirmative defenses encompassed within Section 921(a)(33)(B)(ii). 15

III.

Next, we turn to Johnson’s contentions that Section 922(g)(9) is

unconstitutional because (1) it violates Johnson’s equal-protection rights under the

Due Process Clause of the Fifth Amendment; and (2) it violates the Commerce

Clause. Although we generally review de novo the constitutionality of a statute, we

review such claims, when they are not raised in the district court, for plain error.

United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). As with the Rehaif

claims, Johnson did not make his constitutional arguments in the district court. So

we review them for plain error.

A.

15 The Dissent suggests that the outcome of Johnson’s proceeding would have differed in the absence of the Rehaif errors since the government would have been required to prove that Section 921(a)(33)(B)(ii)’s affirmative defenses did not apply to Johnson because Johnson invoked that exception to argue that he did not qualify as a domestic-violence misdemeanant. See Dissent at 55. But Johnson relied on Section 921(a)(33)(B)(ii) only because his civil rights were never abrogated. Section 921(a)(33)(B)(ii), though, provides no exception to the definition of domestic- violence misdemeanant for an otherwise-qualifying individual whose civil rights were never taken. A defendant cannot make an affirmative defense relevant by raising a ground that is not even arguably covered by that affirmative defense. Simply put, Johnson never properly raised an affirmative defense under Section 921(a)(33)(B)(ii) because he did not allege any of the conditions set forth by that section that would exempt him from having committed a “misdemeanor crime of domestic violence,” so the government had no obligation to prove that that exception does not apply. 35 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 36 of 58

The terms of the Fourteenth Amendment guarantee equal protection of state

law. U.S. Const. amend. XIV. When it comes to the concept of equal protection

under federal law, the Fifth Amendment carries the load. Hampton v. Mow Sun

Wong, 426 U.S. 88, 100 (1976). Unlike the Fourteenth Amendment, the Fifth

Amendment contains no express equal-protection clause. See U.S. amend. V. But

the Fifth Amendment’s guarantee of due process under the law embodies within it

the concept of equal justice under the law. Hampton, 426 U.S. at 100.

Johnson contends that Logan’s reading of Section 921(a)(33)(B)(ii), as

applied to him, causes Section 922(g) to violate equal protection. As we have

explained, under Logan, domestic-violence misdemeanants whose civil rights were

never abrogated by the state where they were convicted are not excepted from

Section 921(a)(33)’s definition of who has committed a “misdemeanor crime of

domestic violence” for purposes of Section 922(g). 522 U.S. at 26. Yet those whose

convictions—whether for misdemeanor crimes of domestic violence or for

felonies—resulted in the forfeiture of their civil rights but who later had those civil

rights restored do not violate Section 922(g) by possessing a firearm. See 18 U.S.C.

§ 921(a)(33)(B)(ii), (a)(20). Johnson argues that domestic-violence misdemeanants

who never lost their civil rights in the first place are therefore unconstitutionally

treated less favorably than those—both domestic-violence misdemeanants and

felons—who have had their civil rights restored.

36 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 37 of 58

No Supreme Court or Eleventh Circuit case holds that Section 922(g)’s

application to domestic-violence misdemeanants who never lost their civil rights but

not to felons and to domestic-violence misdemeanants whose rights were abrogated

but then restored violates equal protection. In this Circuit, when no Supreme Court

or Eleventh Circuit precedent directly resolves a legal issue, no plain error on that

issue can exist. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003). Lejarde-Rada governs the situation here. So here, Johnson cannot establish

plain error.

B.

Johnson also argues that Section 922(g)(9) violates the Commerce Clause

both facially and as applied. He contends that the Commerce Clause does not allow

Congress to criminalize the intrastate possession of a firearm merely because the

firearm once traveled in interstate commerce.

Once again, Johnson did not raise his argument in the district court. So once

again, we apply plain-error review. This time, though, as Johnson recognizes,

binding precedent addresses this issue. And that binding precedent rejects Johnson’s

position. In United States v. McAllister, we held that Section 922(g), which makes

it illegal for a qualifying person to “possess in or affecting commerce, any firearm

or ammunition,” is a constitutional exercise of Congress’s power under the

Commerce Clause. 77 F.3d 387, 390 (11th Cir. 1996) (citing 18 U.S.C. § 922(g))

37 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 38 of 58

(emphasis added by McCallister court). We explained that Section 922(g) regulates

firearms “that have a connection to interstate commerce; the statute explicitly

requires such a connection” with its “in or affecting” language. Id.

Since we issued McAllister, others have also challenged Section 922(g) as an

unconstitutional reach beyond what the Commerce Clause authorizes. And we have

held there, as we hold here, that Circuit precedent forecloses that argument. See

United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); Wright, 607 F.3d at

715. Under our prior-precedent rule, we must follow the precedent of earlier panels

unless and until the prior precedent is overruled or undermined to the point of

abrogation by the Supreme Court or this Court sitting en banc. Steele, 147 F.3d at

1318. As neither exception applies here, we reject Johnson’s Commerce Clause

argument.

IV.

For the reasons we have explained, we affirm Johnson’s conviction.

AFFIRMED.

38 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 39 of 58

MARTIN, Circuit Judge, concurring in part and dissenting in part:

As set forth in the majority opinion, Deangelo Johnson was convicted for

violating 18 U.S.C. § 922(g)(9). This statute makes it unlawful for a person who

has been convicted of a “misdemeanor crime of domestic violence” to possess a

firearm. Last year, the Supreme Court clarified that a section 922(g) conviction

requires the government to “show that the defendant knew he possessed a firearm

and also that he knew he had the relevant status when he possessed it.” Rehaif v.

United States, 588 U.S. ___, 139 S. Ct. 2191, 2194 (2019). Rehaif abrogated our

prior precedent, see, e.g., United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir.

1997) (per curiam), which required only a showing that a defendant knew he

possessed a firearm but not that he knew his prohibited status. See United States v.

Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020); see also Rehaif, 139 S. Ct. at 2210

n.6 (Alito, J., dissenting). This development in the law recognized that “[w]ithout

knowledge of [his prohibited] status,” a defendant’s “behavior may instead be an

innocent mistake to which criminal sanctions normally do not attach.” Rehaif, 139

S. Ct. at 2197. Respectfully, I believe the majority’s approach dilutes the

knowledge-of-status requirement from Rehaif that may result in the government

sending people to prison for “innocent mistake[s].”

But I am not completely at odds with the majority opinion. For example, I

39 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 40 of 58

agree that Mr. Johnson cannot establish plain error on his claim that section

922(g)(9) violates equal protection. I also agree with the majority that Mr. Johnson

cannot establish plain error on his claim that section 922(g)(9) violates the

Commerce Clause. But I do not agree that Mr. Johnson was properly convicted

under section 922(g)(9) because there is no proof he knew he had a status that

prohibited his possession of a firearm. I therefore respectfully dissent.

I

Here, I will highlight the legal background relevant to my understanding of

this case. Section 922(g) describes various categories of people who are prohibited

from possessing a firearm. That list includes felons, 18 U.S.C. § 922(g)(1); people

committed to a mental institution, id. § 922(g)(4); immigrants unlawfully in the

United States, id. § 922(g)(5); people dishonorably discharged from the Armed

Forces, id. § 922(g)(6); and, relevant here, people convicted of a “misdemeanor

crime of domestic violence,” id. § 922(g)(9). Those who “knowingly violate[]”

section 922(g) shall be fined, imprisoned for up to ten years, or both. Id.

§ 924(a)(2). In Rehaif, the Supreme Court considered the “scope of the word

‘knowingly’” in the statute. 139 S. Ct. at 2194. It held that “knowingly” is a

requirement for both a defendant’s conduct (that the defendant must have

knowingly possessed a firearm), and his relevant status (that he knew he was, for

40 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 41 of 58

example, a felon, an immigrant unlawfully in the United States, or a domestic-

violence misdemeanant). See id.

Under Rehaif then, in order for Mr. Johnson to be convicted under section

922(g)(9), he must have known both that he possessed a firearm and that he was

convicted of a misdemeanor crime of domestic violence. A “misdemeanor crime

of domestic violence” might seem familiar in the lay sense, but its statutory

definition is actually “quite complex.” See United States v. Triggs, 963 F.3d 710,

715 (7th Cir. 2020). The term “misdemeanor crime of domestic violence” means

an offense that

is a misdemeanor under Federal, State, or Tribal law; and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A). Thus, to be absolutely clear, under Rehaif, in order for

a person to be convicted of possessing a firearm under section 922(g)(9), he must

have known that he was convicted of a misdemeanor crime of domestic violence

that had, “as an element, the use or attempted use of physical force, or the

threatened use of a deadly weapon.” Id.

41 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 42 of 58

And that’s not all. Under section 921(a)(33)(B), a person “shall not be

considered to have been convicted” of a misdemeanor crime of domestic violence

under certain circumstances. Id. § 921(a)(33)(B). For our purposes here, a person

“shall not be considered to have been convicted” of a misdemeanor crime of

domestic violence if he “has had civil rights restored (if the law of the applicable

jurisdiction provides for the loss of civil rights under such an offense).” Id.

§ 921(a)(33)(B)(ii). As I read the majority opinion, it characterizes section

921(a)(33)(B) as effectively setting forth affirmative defenses, such that the

government is not required to “prove or disprove the defendant’s knowledge of the

components listed in subparagraph (B) to demonstrate that the defendant knew he

was a domestic-violence misdemeanant, unless the defendant first brings forward

evidence suggesting that his prior conviction is excepted from the definition of

‘misdemeanor crime of domestic violence.’” Maj. Op. at 28; see id. at 20–28.

Under this view, a defendant would have to come forward with evidence that he

viewed his prior conviction as excepted under section 921(a)(33)(B) from the

definition of a “misdemeanor crime of domestic violence,” and only then must the

government disprove the defendant’s view in order to show he knew he was

convicted of a misdemeanor crime of domestic violence.

42 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 43 of 58

I will accept the majority’s characterization for the sole purpose of my

analysis here.1 But I also emphasize what the majority recognizes in passing: once

a defendant raises an exception under section 921(a)(33)(B), “the ultimate burden

of persuasion remains with the prosecution.” Maj. Op. at 23; see United States v.

Larouche, 723 F.2d 1541, 1543 (11th Cir. 1984).

II

Now for the facts of this case. In 2010, before his conviction under section

922(g)(9) at issue here, Mr. Johnson pled guilty to and was convicted of the

misdemeanor “Battery (Domestic)” in Florida state court. Specifically, Mr.

1 For a few reasons, it is not obvious to me that section 921(a)(33)(B) sets out affirmative defenses as opposed to elements of the offense. First, as the majority recognizes, the text “could indicate congressional intent to make the subparagraph (B) factors elements.” Maj. Op. at 23– 24. And I give weight to the term “unless” in the phrase “[a] person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless” certain conditions are met. See 18 U.S.C. § 921(a)(33)(B)(i). The term “unless” introduces necessary conditions, such that it certainly could indicate congressional intent to make those conditions elements. Cf. Santiago-Lugo v. Warden, 785 F.3d 467, 473 (11th Cir. 2015) (explaining the term “[u]nless” as used in a statute “lays out what must occur”).

Most importantly though, I have deep reservations about putting the burden on a criminal defendant to avoid being convicted of a crime on the basis that he “is better situated than the government to demonstrate” those conditions. Maj. Op. at 26. It is true in every “criminal case the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution. It might, therefore, be argued that to place upon all defendants in criminal cases the burden of going forward with the evidence would be proper.” Tot v. United States, 319 U.S. 463, 469, 63 S. Ct. 1241, 1245–46 (1943). “But the argument proves too much.” Id. Finally, my concerns are deepened by the fact that, as the majority observes, see Maj. Op. at 22, neither party briefed this issue. That being the case, I would have preferred that the majority assume without deciding that section 921(a)(33)(B) sets out affirmative defenses, thus saving the issue for when it is actually briefed and before our Court. I do think this is a “tenable option” when Mr. Johnson has not raised this issue for our plain error review. See id. at 22 n.8. Notwithstanding my concerns about the majority’s characterization, I accept it only for purposes of my analysis here. 43 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 44 of 58

Johnson was convicted of violating Florida Statutes § 784.03(1)(a). That provision

says the “offense of battery occurs” when a person “[a]ctually and intentionally

touches or strikes another person against the will of the other” or “[i]ntentionally

causes bodily harm to another person.” Fla. Stat. § 784.03(1)(a). Nothing in the

record before us indicates that Mr. Johnson was ever made aware of the elements

of his prior offense or that it might be a misdemeanor crime of domestic violence

under federal law. And because his misdemeanor conviction did not prohibit Mr.

Johnson from possessing a firearm under Florida law, see Fla. Stat. § 790.23(1)

(2010), Johnson was not advised of his prohibited status when he entered his plea.

His experience stands in contrast to most people who are sentenced for felony

convictions who are advised of their status that prohibits them from possessing

firearms.

During a traffic stop in 2018, a police officer saw a gun, which Mr. Johnson

bought for protection, on the floorboard of Johnson’s vehicle. A federal grand jury

indicted Mr. Johnson, charging him with possession of a firearm after being

convicted of a misdemeanor crime of domestic violence in violation of section

922(g)(9). Mr. Johnson moved to dismiss his indictment under Federal Rule of

Criminal Procedure 12(b)(3)(B)(v) for failure to state an offense. He argued that

his domestic violence misdemeanor conviction fell under the exception in section

921(a)(33)(B). As set out above, that section says a person “shall not be

44 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 45 of 58

considered to have been convicted” of a misdemeanor crime of domestic violence

if he “has had civil rights restored (if the law of the applicable jurisdiction provides

for the loss of civil rights under such an offense).” 18 U.S.C. § 921(a)(33)(B)(ii).

In moving to dismiss his indictment, Mr. Johnson observed that Florida “never

suspended his civil rights” because Florida does not prohibit domestic-violence

misdemeanants from possessing a firearm, and thus “his rights did not require

restoration.” The District Court declined to dismiss Mr. Johnson’s indictment.

Mr. Johnson then proceeded with a stipulated bench trial, and he was found guilty.

When sentencing Mr. Johnson for violating section 922(g)(9), the District Court

observed that “it isn’t often that individuals end up before the Court charged with

something that they can genuinely say they didn’t know was unlawful.”

III

With this legal and factual background in mind, I now turn to Mr. Johnson’s

Rehaif challenges to his indictment as well as the sufficiency of the evidence at

trial. The majority correctly observes that Mr. Johnson did not raise his Rehaif

arguments in the District Court. Maj. Op. at 10. That means we review those

challenges for plain error. See United States v. Reed, 941 F.3d 1018, 1020 (11th

Cir. 2019). Plain error exists when (1) there was error, (2) the error was plain,

(3) the error affected the defendant’s substantial rights, and (4) the error “seriously

affect[ed] the fairness, integrity, or public reputation of a judicial proceeding.”

45 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 46 of 58

United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999). To show that

an error affected his substantial rights, a defendant must demonstrate a reasonable

probability that, but for the errors, the outcome of the proceeding would have been

different. Reed, 941 F.3d at 1021.

Applying this test, I agree with the majority that there were Rehaif errors

here and that they were plain. See Maj. Op. at 11–14.2 But I part ways with the

majority’s holding that those errors did not affect Mr. Johnson’s substantial rights.

Id. at 31–32. According to the majority opinion, “to satisfy Rehaif’s knowledge-

of-status requirement under Section 922(g)(9), the evidence must establish that

Johnson knew all the following: (1) he had been convicted of a misdemeanor

under state law; (2) to be convicted of that misdemeanor, he must have knowingly

or recklessly engaged in at least ‘the slightest offensive touching’; and (3) the

victim was his current or former spouse at the time he committed the crime.” Id. at

19–20 (footnotes and citations omitted).3 The majority says these prongs are easily

satisfied, so Mr. Johnson’s substantial rights were not affected because he was due

to be convicted under section 922(g)(9) regardless of Rehaif. Id. at 28–32.

2 The majority also correctly holds that Mr. Johnson did not invite error by stipulating that the facts were sufficient to convict him. Maj. Op. at 8–9. 3 I understand the majority’s test to apply only to Mr. Johnson’s case, rather than to all criminal defendants subject to section 922(g)(9). Otherwise, the majority’s test improperly excludes people convicted of a misdemeanor under non-state law, such as “Federal” or “Tribal” law, as well as people convicted of a misdemeanor crime of domestic violence involving victims other than current or former spouses, such as children. See 18 U.S.C. § 921(a)(33)(A). 46 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 47 of 58

I have three primary concerns about the majority’s analysis. First, the

majority fails to require, contrary to Rehaif, that Mr. Johnson actually knew his

offense was a misdemeanor crime of domestic violence. Second, the majority

relies on what Mr. Johnson knew at the time he was tried for the section 922(g)(9)

violation (which is irrelevant under Rehaif), instead of what he knew when he had

the firearm (which is what matters under Rehaif). Third, the majority errs in

finding that the test for plain error review is not satisfied. I will address each of

these misgivings in turn.

A

My first concern about the majority’s approach relates to the government’s

proof of the “knowledge” requirement in order to obtain a conviction under section

922(g). Rehaif held that the government must show that a defendant “knew he had

the relevant status” when he possessed the firearm. Rehaif, 139 S. Ct. at 2194.

Therefore, I read Rehaif as requiring the government to show that Mr. Johnson

knew he was “convicted in any court of a misdemeanor crime of domestic

violence,” which “means an offense that . . . has, as an element, the use or

attempted use of physical force.” 18 U.S.C. §§ 921(a)(33)(A)(ii), 922(g)(9). In

other words, I understand Rehaif to require the government to show that Mr.

Johnson actually knew he was convicted of an offense that had, “as an element, the

use or attempted use of physical force” and thus qualified as a misdemeanor crime

47 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 48 of 58

of domestic violence. Id. § 921(a)(33)(A)(ii). Because it requires knowing a

specific legal “element of the offense,” knowledge of status under section

922(g)(9) is a “question of law.” See Rehaif, 139 S. Ct. at 2198.

The majority opinion requires the government to show less than I think the

statute and Rehaif require. The majority requires only that the government show a

defendant knew his conviction required particular conduct, regardless of whether

the defendant actually knew his conduct qualifies his offense as a misdemeanor

crime of domestic violence. For instance, under its test, the majority requires that

the defendant knew that, to be convicted of his offense, “he must have knowingly

or recklessly engaged in at least ‘the slightest offensive touching.’” Maj. Op. at 19

(footnote omitted). Likewise, in applying its test to Mr. Johnson, the majority

observes that Johnson stipulated at his bench trial that he “pled guilty to battery”

and thus knew he “engaged in at least ‘the slightest offensive touching.’” Id. at 30.

But again, those facts might show Mr. Johnson knew of his conduct and the

offense to which he pled guilty, but they do not show that Mr. Johnson knew his

offense was a misdemeanor crime of domestic violence under federal law.

The Supreme Court said the government must show that a defendant “knew

he had the relevant status” when he possessed the firearm. Rehaif, 139 S. Ct. at

2194. By this, I take the Supreme Court to mean that the government must show

the defendant knew he had “been convicted in any court of a misdemeanor crime

48 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 49 of 58

of domestic violence.” 18 U.S.C. § 922(g)(9). It is irrelevant under section 922(g)

and Rehaif that a defendant knows that an offense requires certain conduct for a

conviction if he does not know that conduct ultimately makes the offense a

misdemeanor crime of domestic violence. I acknowledge that this is a subtle

distinction, but it is one that matters. In Rehaif, the Supreme Court recognized that

a “mistake of law” is no defense when a defendant “claims to be ‘unaware of the

existence of a statute proscribing his conduct’” (which is not at issue here).

Rehaif, 139 S. Ct. at 2198. Yet it is a defense when, as in section 922(g)(9), that

mistake of law “negat[es] an element of the offense.” Id. Namely, a defendant

who does not know that he has been convicted of a misdemeanor crime of

domestic violence “does not have the guilty state of mind that the statute’s

language and purposes require.” Id.

My difference with the majority’s position is exactly that: Mr. Johnson’s

mistake of law—that he did not know his prior offense was a misdemeanor crime

of domestic violence—negates an element of the section 922(g)(9) offense. I think

the majority fails to engage with Rehaif’s recognition that this mistake of law

negates an element of the offense. 4 Instead the majority asserts, citing to cases

4 The majority says, “under Rehaif’s knowledge-of-status requirement, that a defendant does not recognize that he personally is prohibited from possessing a firearm under federal law” is a “mistake of law, which is not a defense.” Maj. Op. at 32–33. But that, of course, is not the mistake of law I refer to here. Instead, I refer to a mistake of law that “negat[es] an element of the offense.” See Rehaif, 139 S. Ct. at 2198. 49 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 50 of 58

involving other statutes, that a defendant need only know the facts making his

conduct unlawful. See Maj. Op. at 15–20. But even if a defendant knows the facts

that resulted in his conviction for what is, in fact, a misdemeanor crime of

domestic violence, he does not necessarily know it was a misdemeanor crime of

domestic violence. In Rehaif, the Supreme Court said that, as is the case here, “a

mistake of law is a defense if the mistake negates the ‘knowledge . . . required to

establish a material element of the offense.’” Rehaif, 139 S. Ct. at 2198.

I believe the government must show that a defendant knew he was

“convicted in any court of a misdemeanor crime of domestic violence,” which

means he knew he was convicted of “an offense that . . . has, as an element, the use

or attempted use of physical force.” 18 U.S.C. §§ 921(a)(33)(A)(ii), 922(g)(9).

That requires the government to prove the defendant was aware that his prior

conviction included the element of use or attempted use of force. The majority

says this requirement is met by a defendant’s knowledge of his conduct. See Maj.

Op. at 15–20 & n.7. I think the government’s burden is heavier than that. For

example, if a defendant pleads guilty to a battery offense, he very well may be

informed of the elements of that offense by the judge during his plea colloquy or

through a stipulation. In this hypothetical circumstance, there is a record showing

that he knew he was convicted of an offense that “has, as an element, the use or

attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). Unlike this

50 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 51 of 58

hypothetical, I don’t believe the record here is sufficient to attribute this knowledge

to Mr. Johnson.

B

While my first concern about the majority’s position looks to what the

government must show the defendant knew, my second concern is about when the

government must show he knew it. Rehaif requires that the defendant “knew he

had the relevant status when he possessed” the firearm. Rehaif, 139 S. Ct. at 2194

(emphasis added). As an initial matter, I do not understand the majority’s test to

comport with this part of Rehaif. Rather, the majority opinion requires only that

“Johnson knew all” necessary facts, Maj. Op. at 29, and then relies on Mr.

Johnson’s knowledge at the time of the proceedings on the section 922(g)(9)

charge. Specifically, the majority looks to only two documents in the record to

determine what Mr. Johnson knew: Johnson’s stipulation at the trial of his section

922(g)(9) charge and the presentence investigation report from his sentencing after

he was convicted for that crime. Id. at 28. Based on these two documents, the

majority concludes that Mr. Johnson knew his offense “required that he had

necessarily engaged in at least ‘the slightest offensive touching.’” Id. at 28, 31.

But neither of those documents show that Mr. Johnson “knew . . . when he

possessed” the firearm that he was a domestic-violence misdemeanant. Rehaif,

51 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 52 of 58

139 S. Ct. at 2194 (emphasis added). The documents merely tell us what he knew

as he progressed through his section 922(g)(9) proceedings.

Federal courts see many defendants who have never before faced federal

charges, and I’ve observed that they get quite an education about what can

constitute a federal crime between the time they are arrested and the time they

ultimately face trial or are sentenced. For instance, the majority only cites Mr.

Johnson’s stipulation to show his purported knowledge of “the elements of [his

battery] offense.” Maj. Op. at 30. The stipulation says Mr. Johnson “knowingly

and intelligently waived his right to a jury trial and pled guilty” to the battery

offense. According to the majority’s reading of Bradshaw v. Stumpf, 545 U.S.

175, 125 S. Ct. 2398 (2005), Mr. Johnson’s knowing and intelligent plea means he

was “informed of the crime’s elements.”5 Maj. Op. at 30. But the problem is that

nowhere in that stipulation does it say Mr. Johnson knew the nature of his plea

(and thus the elements of his offense) when he possessed the firearm. The most we

5 I read Stumpf differently than the majority. The majority says Stumpf “explained that a knowing and intelligent plea requires that the defendant have been informed of the crime’s elements.” Maj. Op. at 30. But Stumpf said only that a plea is knowing and intelligent “where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel” or “by the trial judge.” Stumpf, 545 U.S. at 183, 125 S. Ct. at 2405. Stumpf does not say that a defendant’s statement that he knowingly and intelligently pled guilty is sufficient to show he knew the elements of his offense. Rather, all it says is that “where the record accurately reflects” that a defendant knew the elements of his offense, then he knowingly and intelligently pled guilty. Id. We simply don’t have that here. We cannot assume that Mr. Johnson knew the elements of his offense solely because he stipulated that he knowingly and intelligently pled guilty to the battery offense. This is especially true since he made that stipulation during his section 922(g)(9) proceedings and after he possessed the firearm. 52 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 53 of 58

can say is that the stipulation shows Mr. Johnson had knowledge of the nature of

his plea during the section 922(g)(9) proceedings. The majority says that the

stipulation and presentence investigation report “identify what Johnson knew at the

time that he pled guilty to the underlying” battery offense. Id. at 29 n.11. Again, I

don’t think they do. Perhaps now Mr. Johnson understands the nature of his prior

conviction. But nothing in Rehaif is concerned about after-the-fact knowledge like

this. I worry that the majority’s reliance on documents purportedly showing Mr.

Johnson’s knowledge after he possessed the firearm will pave the way for the

government to rely on such deficient evidence in the future.

C

My final concern with the majority’s position is its conclusion that the test

for plain error review is not satisfied. See Maj. Op. at 31–32. For the reasons

discussed here, I would easily conclude that Mr. Johnson has shown that the Rehaif

errors affected his substantial rights. I’ve found nothing in the record showing that

Mr. Johnson knew, at the time he possessed the firearm, that his prior conviction

had, “as an element, the use or attempted use of physical force,” 18 U.S.C.

§ 921(a)(33)(A)(ii), and consequently was a misdemeanor crime of domestic

violence. This being the case, if Mr. Johnson had known that the government

needed to prove he knew his status, it would have made no sense for him to

stipulate to that point, instead of putting the government to its proof. Thus, he has

53 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 54 of 58

shown a reasonable probability that the outcome of the proceeding would have

been different. Reed, 941 F.3d at 1021. Mr. Johnson’s resulting prison sentence,

when he did not know the status for which he was convicted, makes it clear to me

that this error “seriously affect[ed] the fairness, integrity, or public reputation of a

judicial proceeding.” Humphrey, 164 F.3d at 588 n.3.

Were it up to me, I would follow the Seventh Circuit’s approach in Triggs.

Like Mr. Johnson, Robert Triggs challenged his section 922(g)(9) conviction under

Rehaif. Triggs, 963 F.3d at 712. The Seventh Circuit held that Mr. Triggs

established plain error because he “carried his burden to establish a reasonable

probability that he would not have pleaded guilty had he known of the

government’s Rehaif burden.” Id. at 717. The Seventh Circuit observed that Mr.

Triggs had a “potentially viable avenue of defense” because the “government had

to prove that he knew he had been convicted of a ‘misdemeanor crime of domestic

violence,’” and the record nowhere showed that the “elements” of his prior

conviction were ever provided or explained to him. See id. at 715–16. As in

Triggs, nothing in this record indicates that Mr. Johnson knew, at the time when he

possessed the firearm, that he had been convicted of a misdemeanor crime of

domestic violence, which requires he knew his battery offense had, “as an element,

the use or attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). This

comes as no surprise to me, as the legal definition of a misdemeanor crime of

54 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 55 of 58

domestic violence is “quite complex.” Triggs, 963 F.3d at 715. Indeed, the

“[m]embers of [the Supreme] Court have been unable to agree on the meaning” of

a crime of domestic violence, even “after briefing, argument, and careful study” in

numerous cases. Rehaif, 139 S. Ct. at 2208 (Alito, J., dissenting). If the Supreme

Court has been grappling for years with the meaning of a crime of a domestic

violence, I think Mr. Johnson certainly has a “plausible defense” that he didn’t

know that meaning either. See Triggs, 963 F.3d at 717. He therefore didn’t know

his status and so has “establish[ed] a reasonable probability” that the outcome of

the proceeding would have been different “had he known of the government’s

Rehaif burden.” Id.

But even putting aside my other misgivings and the wisdom of Triggs, I

think this record affirmatively shows a reasonable probability that the outcome of

the proceeding would have been different. Namely, when Mr. Johnson moved to

dismiss the indictment, he argued that his domestic violence misdemeanor

conviction fell under the exception in section 921(a)(33)(B)(ii). As a refresher,

that section says a person “shall not be considered to have been convicted” of a

misdemeanor crime of domestic violence if he “has had civil rights restored (if the

law of the applicable jurisdiction provides for the loss of civil rights under such an

offense).” 18 U.S.C. § 921(a)(33)(B)(ii). In Mr. Johnson’s view, he qualified for

55 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 56 of 58

that exception because he was never prohibited from possessing a gun under

Florida law.

Remember, according to the majority opinion, when a defendant puts

forward evidence that he viewed his prior conviction as excepted under section

921(a)(33)(B) from the definition of a “misdemeanor crime of domestic violence”

(which Mr. Johnson did, as shown by his motion to dismiss), the government has

the burden of persuasion and must disprove that view in order to show the

defendant knew he was convicted of a misdemeanor crime of domestic violence.

Maj. Op. at 28; see also id. at 20–28. Regardless of whether Mr. Johnson’s section

921(a)(33)(B) argument would ultimately be meritorious, see id. at 33–35, the

question under the plain error analysis is whether there is a reasonable probability

that the outcome of the proceeding would have been different. Reed, 941 F.3d at

1021. If Mr. Johnson had known that the government had to “disprove” his view

that “his prior conviction [was] excepted from the definition of ‘misdemeanor

crime of domestic violence,’” Maj. Op. at 28, it seems clear that Mr. Johnson

would have put the government to its proof on this issue.6

6 The majority says the outcome of the proceeding would not have been different because Mr. Johnson “never properly raised an affirmative defense under Section 921(a)(33)(B)(ii).” Maj. Op. at 35 n.15. This assertion is troubling. The question on plain error review is not whether Mr. Johnson had a proper affirmative defense that “arguably” would have succeeded. Id. Instead, the question is whether Mr. Johnson would have required the government to disprove his view (regardless of whether his view is proper) that an exception applied had he known the government needed to do so. I certainly think so, and if so, there is a reasonable 56 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 57 of 58

IV

I view today’s decision as relieving the government of its burden to obtain

convictions under section 922(g). Both the statute and Rehaif require more for a

section 922(g) conviction than the government will now be called upon to show.

As I understand this decision, the government will not now need to show, as

Rehaif requires, that a defendant actually knew his offense was a misdemeanor

crime of domestic violence. And under the majority’s decision, the government

can rely on a defendant’s knowledge after his actual possession of the firearm, as

opposed to, again as Rehaif requires, his knowledge when he possessed the

firearm. I also believe the majority’s decision does all that while conducting a

flawed plain error review and creating a split with the Seventh Circuit in Triggs.7

probability that the outcome of the proceeding would have been different. Reed, 941 F.3d at 1021. 7 The majority disavows its split with Triggs because Triggs involved “messy” proceedings. Maj. Op. at 31 n.12. I don’t think this is a proper distinction. The Seventh Circuit said that the “complexity of the statutory definition” (before ever discussing any “messy” proceedings) “open[ed] a potentially viable avenue of defense.” Triggs, 963 F.3d at 716. I, like the Seventh Circuit, believe that “the complexity of the statutory definition” of a misdemeanor crime of domestic violence gives a defendant “at least a plausible argument” that he was unaware he had been convicted of such an offense. Id. However, the majority, unlike the Seventh Circuit, gives no leeway for the complex statutory definition to be relevant, so long as the defendant knew the facts making his conduct unlawful. See Maj. Op. at 15–20. But even assuming the Seventh Circuit remanded in Triggs based in part on “messy” proceedings, those proceedings were characterized that way because the “elements” of the prior offense were never provided to Mr. Triggs. See Triggs, 963 F.3d at 716. This being the case, I view the proceedings here to be “messy” too and see a split with the Seventh Circuit on that ground as well. 57 USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 58 of 58

Like the District Court, I view this as an “unusual offense,” because Mr.

Johnson was charged with something he can “genuinely say [he] didn’t know was

unlawful.” For his conviction under this statute, that matters. I respectfully

dissent.