Case: 18-13710 Date Filed: 03/02/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13710 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-20387-DPG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
GARRY GRACE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(March 2, 2020)
Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.
PER CURIAM:
The government moves us to modify our January 16, 2020, opinion, which
affirmed Garry Grace’s conviction for being a felon in possession of a firearm and Case: 18-13710 Date Filed: 03/02/2020 Page: 2 of 6
ammunition. 18 U.S.C. §§ 922(g)(1), 924(e)(1). We GRANT the motion, and we
VACATE and WITHDRAW our earlier opinion and substitute the following
revised opinion.
Grace appeals his conviction for possessing a firearm and ammunition as a
felon. Id. §§ 922(g)(1), 924(e)(1). Grace seeks to vacate his conviction based on
Rehaif v. United States, 139 S. Ct. 2191 (2019), which the Supreme Court decided
while his appeal was pending. Grace argues, based on Rehaif, that plain error
occurred because his indictment failed to allege he knew he was a felon and that
the omission stripped the district court of power to adjudicate his criminal case.
Because the defect in Grace’s indictment did not affect the jurisdiction of the
district court or Grace’s substantial rights, we affirm.
A grand jury charged Grace with “knowingly possess[ing] a firearm and
ammunition in and affecting interstate and foreign commerce . . . [after] having
previously been convicted of a crime punishable by imprisonment for a term
exceeding one year, . . . in violation of Title 18, United States Code, Sections
922(g)(1) and 924(e)(1).” Before trial, Grace stipulated that, “on September 14,
2013, [he] was not lawfully permitted to possess a firearm or ammunition under
federal law” because he previously “had been convicted in a Florida court of a
crime punishable by imprisonment for a term in excess of one year” and his “rights
2 Case: 18-13710 Date Filed: 03/02/2020 Page: 3 of 6
to possess a firearm or ammunition ha[d] not been restored . . . .” Grace proceeded
to trial and the jury found him guilty of being a felon in possession.
Grace’s presentence investigation report classified him as an armed career
criminal and recommended that he receive the minimum statutory sentence of
imprisonment. See 18 U.S.C. § 924(e)(1). The presentence report counted as
predicate offenses Grace’s convictions in June 2001 of selling, manufacturing, or
delivering both cocaine and marijuana and in November 2003—in two separate
cases—of selling, manufacturing, or delivering cocaine and possessing marijuana
and of attempted armed robbery, attempted carjacking, aggravated battery with
great bodily harm using a firearm, and burglary with assault or armed battery. The
presentence report stated that Grace had served two concurrent sentences of 84
months in prison for his latter crimes.
Grace did not object to the presentence report, and the district court adopted
its findings and recommendations. The district court sentenced Grace to 180
months of imprisonment.
Because Grace never objected to the sufficiency of his indictment, we
review for plain error. See United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.
2019). Under that standard, Grace must prove an error occurred that was plain and
that affected his substantial rights. See id. at 1021. “And because relief on plain-
error review is in the discretion of the reviewing court, [Grace] has the further
3 Case: 18-13710 Date Filed: 03/02/2020 Page: 4 of 6
burden to persuade [us] that the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Vonn, 535 U.S. 55, 63
(2002) (alteration adopted) (internal quotation marks omitted).
Grace established an error in his indictment that Rehaif made plain. Rehaif
made clear that a defendant’s knowledge of his status as a felon is an element of
the crime of being a felon in possession of a firearm and ammunition. 139 S. Ct. at
2200; see Reed, 941 F.3d at 1021. And Grace’s indictment failed to allege that he
knew he was a felon.
The error in Grace’s indictment did not affect the jurisdiction of the district
court to adjudicate Grace’s case. Jurisdiction concerns “the courts’ statutory or
constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625,
630 (2002) (emphasis omitted) (quoting Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 89 (1998)). Because Congress empowered district courts to try “all
offenses against the laws of the United States,” 18 U.S.C. § 3231, “all that
matter[s] for purposes of the district court’s subject-matter jurisdiction [is] that the
United States file[] an indictment charging [the defendant] with violating ‘laws of
the United States,’” United States v. Brown, 752 F.3d 1344, 1348 (11th Cir. 2014)
(alteration adopted) (internal quotation marks omitted). “So long as the indictment
charges the defendant with violating a valid federal statute as enacted in the United
States Code,” the district court has power to hear the criminal case. Id. at 1354. A
4 Case: 18-13710 Date Filed: 03/02/2020 Page: 5 of 6
district court lacks jurisdiction only if the indictment “charg[es] (1) a crime that
simply d[oes] not exist in the United States Code, . . . (2) conduct that . . . [is not
prohibited by the] statute, . . . [or] (3) a violation of a regulation that [is] not
intended to be a ‘law’ for purposes of criminal liability . . . .” Id. at 1353 (internal
citations omitted). The omission of an element of a crime makes the indictment
defective, but that defect “do[es] not deprive a court of its power to adjudicate [the]
case.” Cotton, 535 U.S. at 630; see Brown, 752 F.3d at 1350–51, 1353–54.
Grace’s indictment vested jurisdiction in the district court. The indictment
charged Grace with violating a law of the United States, 18 U.S.C. § 922(g)(1),
which empowered the district court to hear his case. Grace’s indictment parroted
the language of the statute by alleging that, on a specific date, he was a felon in
possession of a firearm and ammunition that had a connection to interstate
commerce. Id. That Grace’s indictment failed to allege that he knew he was a felon
prohibited from possessing firearms did “not affect the jurisdiction of the [district
court] to determine the case presented by [his] indictment.” See Cotton, 535 U.S. at
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Case: 18-13710 Date Filed: 03/02/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13710 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cr-20387-DPG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
GARRY GRACE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(March 2, 2020)
Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.
PER CURIAM:
The government moves us to modify our January 16, 2020, opinion, which
affirmed Garry Grace’s conviction for being a felon in possession of a firearm and Case: 18-13710 Date Filed: 03/02/2020 Page: 2 of 6
ammunition. 18 U.S.C. §§ 922(g)(1), 924(e)(1). We GRANT the motion, and we
VACATE and WITHDRAW our earlier opinion and substitute the following
revised opinion.
Grace appeals his conviction for possessing a firearm and ammunition as a
felon. Id. §§ 922(g)(1), 924(e)(1). Grace seeks to vacate his conviction based on
Rehaif v. United States, 139 S. Ct. 2191 (2019), which the Supreme Court decided
while his appeal was pending. Grace argues, based on Rehaif, that plain error
occurred because his indictment failed to allege he knew he was a felon and that
the omission stripped the district court of power to adjudicate his criminal case.
Because the defect in Grace’s indictment did not affect the jurisdiction of the
district court or Grace’s substantial rights, we affirm.
A grand jury charged Grace with “knowingly possess[ing] a firearm and
ammunition in and affecting interstate and foreign commerce . . . [after] having
previously been convicted of a crime punishable by imprisonment for a term
exceeding one year, . . . in violation of Title 18, United States Code, Sections
922(g)(1) and 924(e)(1).” Before trial, Grace stipulated that, “on September 14,
2013, [he] was not lawfully permitted to possess a firearm or ammunition under
federal law” because he previously “had been convicted in a Florida court of a
crime punishable by imprisonment for a term in excess of one year” and his “rights
2 Case: 18-13710 Date Filed: 03/02/2020 Page: 3 of 6
to possess a firearm or ammunition ha[d] not been restored . . . .” Grace proceeded
to trial and the jury found him guilty of being a felon in possession.
Grace’s presentence investigation report classified him as an armed career
criminal and recommended that he receive the minimum statutory sentence of
imprisonment. See 18 U.S.C. § 924(e)(1). The presentence report counted as
predicate offenses Grace’s convictions in June 2001 of selling, manufacturing, or
delivering both cocaine and marijuana and in November 2003—in two separate
cases—of selling, manufacturing, or delivering cocaine and possessing marijuana
and of attempted armed robbery, attempted carjacking, aggravated battery with
great bodily harm using a firearm, and burglary with assault or armed battery. The
presentence report stated that Grace had served two concurrent sentences of 84
months in prison for his latter crimes.
Grace did not object to the presentence report, and the district court adopted
its findings and recommendations. The district court sentenced Grace to 180
months of imprisonment.
Because Grace never objected to the sufficiency of his indictment, we
review for plain error. See United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.
2019). Under that standard, Grace must prove an error occurred that was plain and
that affected his substantial rights. See id. at 1021. “And because relief on plain-
error review is in the discretion of the reviewing court, [Grace] has the further
3 Case: 18-13710 Date Filed: 03/02/2020 Page: 4 of 6
burden to persuade [us] that the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Vonn, 535 U.S. 55, 63
(2002) (alteration adopted) (internal quotation marks omitted).
Grace established an error in his indictment that Rehaif made plain. Rehaif
made clear that a defendant’s knowledge of his status as a felon is an element of
the crime of being a felon in possession of a firearm and ammunition. 139 S. Ct. at
2200; see Reed, 941 F.3d at 1021. And Grace’s indictment failed to allege that he
knew he was a felon.
The error in Grace’s indictment did not affect the jurisdiction of the district
court to adjudicate Grace’s case. Jurisdiction concerns “the courts’ statutory or
constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625,
630 (2002) (emphasis omitted) (quoting Steel Co. v. Citizens for Better Env’t, 523
U.S. 83, 89 (1998)). Because Congress empowered district courts to try “all
offenses against the laws of the United States,” 18 U.S.C. § 3231, “all that
matter[s] for purposes of the district court’s subject-matter jurisdiction [is] that the
United States file[] an indictment charging [the defendant] with violating ‘laws of
the United States,’” United States v. Brown, 752 F.3d 1344, 1348 (11th Cir. 2014)
(alteration adopted) (internal quotation marks omitted). “So long as the indictment
charges the defendant with violating a valid federal statute as enacted in the United
States Code,” the district court has power to hear the criminal case. Id. at 1354. A
4 Case: 18-13710 Date Filed: 03/02/2020 Page: 5 of 6
district court lacks jurisdiction only if the indictment “charg[es] (1) a crime that
simply d[oes] not exist in the United States Code, . . . (2) conduct that . . . [is not
prohibited by the] statute, . . . [or] (3) a violation of a regulation that [is] not
intended to be a ‘law’ for purposes of criminal liability . . . .” Id. at 1353 (internal
citations omitted). The omission of an element of a crime makes the indictment
defective, but that defect “do[es] not deprive a court of its power to adjudicate [the]
case.” Cotton, 535 U.S. at 630; see Brown, 752 F.3d at 1350–51, 1353–54.
Grace’s indictment vested jurisdiction in the district court. The indictment
charged Grace with violating a law of the United States, 18 U.S.C. § 922(g)(1),
which empowered the district court to hear his case. Grace’s indictment parroted
the language of the statute by alleging that, on a specific date, he was a felon in
possession of a firearm and ammunition that had a connection to interstate
commerce. Id. That Grace’s indictment failed to allege that he knew he was a felon
prohibited from possessing firearms did “not affect the jurisdiction of the [district
court] to determine the case presented by [his] indictment.” See Cotton, 535 U.S. at
631 (quoting United States v. Williams, 341 U.S. 58, 66 (1951)). In the words of
the Court in Cotton, we are “[f]reed from the view that indictment omissions
deprive a court of jurisdiction . . . .” Id. at 631.
Grace is not entitled to a vacatur of his conviction because he cannot prove
that the error in his indictment affected his substantial rights. He cannot “show a
5 Case: 18-13710 Date Filed: 03/02/2020 Page: 6 of 6
reasonable probability that, but for the error, the outcome of [his] proceeding
would have been different,” Molina-Martinez v. United States, 136 S. Ct. 1338,
1343 (2016), in the light of “the whole record,” Vonn, 535 U.S. at 59. See Reed,
941 F.3d at 1021. Grace’s indictment “contained enough factual detail to apprise
[him] of the conduct for which he would be tried” even though “it did not
expressly allege mens rea” concerning his status as a felon. See United States v.
Gray, 260 F.3d 1267, 1283 (11th Cir. 2001). Grace stipulated before trial that he
was a felon and admitted at sentencing that he had been convicted of eight felony
offenses and had served seven years in prison. See United States v. Harris, 941
F.3d 1048, 1053 (11th Cir. 2019) (observing the defendant “waived any objections
and effectively admitted to the recited facts for sentencing purposes” by failing to
dispute the contents of his presentence report). So Grace cannot prove that he was
prejudiced by the error in his indictment or that the error affected the fairness,
integrity, or public reputation of his trial.
We AFFIRM Grace’s conviction.