United States v. Jean Denis Paul

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 8, 2020
• Docket: 19-10846
• Status: Unpublished

Opinion

Case: 19-10846 Date Filed: 09/08/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10846 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20810-KMM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JEAN DENIS PAUL,

Defendant - Appellant.

________________________

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

(September 8, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and GRANT, Circuit Judges.

PER CURIAM: Case: 19-10846 Date Filed: 09/08/2020 Page: 2 of 11

Jean Denis Paul appeals his convictions and 120-month total sentence for

possession of a firearm by a convicted felon and possession with intent to

distribute marijuana. He argues that his felon-in-possession conviction is invalid

under Rehaif v. United States, 139 S. Ct. 2191 (2019), because his indictment, the

government’s proof at trial, the district court’s jury instructions, and the jury

verdict all omitted an essential element of the crime—that Paul knew of his status

as a convicted felon prohibited from possessing a firearm. He further argues that

because he had already been sentenced to 24 months in prison following the

revocation of his supervised release for the same conduct, his convictions violated

the Double Jeopardy Clause and his sentences exceeded the maximum provided by

statute for the offenses. After a careful review of the record and the parties’ briefs,

we affirm.

I.

In 2014, Paul pleaded guilty to possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g). The district court sentenced him to 41 months’

imprisonment followed by three years of supervised release. In 2018, after he

completed his sentence of imprisonment but while still serving his term of

supervised release, Paul was arrested for (among other things) the offenses at issue

here: possession of a firearm by a convicted felon and possession with intent to

distribute marijuana. The district court held a supervised release revocation

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hearing and determined that Paul had violated the terms of his supervised release in

a number of ways, including by committing the new offenses. The court therefore

revoked his supervised release and sentenced him to 24 months in prison followed

by an additional term of supervised release.

A few months after the supervised release revocation, a federal grand jury

considered evidence of the same criminal conduct forming the basis for the

revocation of Paul’s supervised release and returned a three-count indictment

charging him with possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute a

controlled substance (marijuana), in violation of 21 U.S.C. § 841(a)(1) (Count 2);

and possession of a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3). As to Count 1, the indictment charged

that Paul, “having been previously convicted of a crime punishable by

imprisonment for a term exceeding one year, did knowingly possess a firearm and

ammunition in and affecting interstate and foreign commerce, in violation of Title

18, United States Code, Section 922(g)(1).”

Paul pleaded not guilty and proceeded to trial. During trial, the government

entered into evidence a stipulation between the parties stating that Paul had been

convicted of a felony in 2015, three years before the charged offense. A copy of

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Paul’s 2015 Florida judgment of conviction for possession of a firearm as a

convicted felon was attached to the stipulation.

After the close of evidence, the district court instructed the jury on the

elements of the crimes charged. The court instructed the jury that to find Paul

guilty on the felon-in-possession charge, it had to find beyond a reasonable doubt

that “[f]irst, the defendant knowingly possessed a firearm or ammunition, in or

affecting interstate or foreign commerce; and two, before possessing the firearm or

ammunition, the defendant had been convicted of a felony, a crime punishable by

imprisonment for more than one year.” The jury found Paul guilty on Counts 1

and 2 but acquitted him on Count 3.

The district court imposed the statutory maximum sentence of imprisonment

on each count: 120 months on Count 1 and 60 months on Count 2, to be served

concurrently with each other and consecutively with the remainder of Paul’s 24-

month sentence on the revocation of his supervised release. See 18 U.S.C.

§ 924(a)(2); 21 U.S.C. § 841(b)(1)(D). Paul now appeals.

II.

In his first three enumerations of error, Paul challenges his conviction for

possession of a firearm as a convicted felon, arguing that his indictment was

fatally flawed because it did not charge him with knowledge of his status as a

felon who was prohibited from possessing a firearm under § 922(g)(1), and that

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the district court erred by failing to require the government to prove that he knew

his status and by omitting the knowledge requirement as an element of the crime

in its instruction to the jury. Ordinarily, we review de novo whether there is

sufficient evidence to support a conviction, whether the district court misstated the

law in its jury instruction, and whether an indictment is sufficient. United States

v. Baston, 818 F.3d 651, 660 (11th Cir. 2016); United States v. Joseph, 709 F.3d

1082, 1093 (11th Cir. 2013); United States v. Steele, 178 F.3d 1230, 1233 (11th

Cir. 1999). Because Paul raises these challenges for the first time on appeal,

however—and because, as we have recently explained, the failure to allege

knowledge of felon status in the indictment is a nonjurisdictional issue—we

review for plain error. 1 United States v. Moore, 954 F.3d 1322, 1332, 1336–37

(11th Cir. 2020); see United States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019).

To meet the plain-error standard for reversal, an appellant must show that an

error occurred that was plain and that affected his substantial rights. Reed, 941

F.3d at 1021. And for us to conclude that an error affected his substantial rights,

he must show a reasonable probability that, but for the error, the outcome of the

1 Although Paul did make a sufficiency of the evidence challenge below, he “failed to raise the specific challenge to the sufficiency of the evidence that he now raises on appeal.” United States v. Baston, 818 F.3d 651, 663 (11th Cir. 2016). At trial, he challenged the sufficiency of the evidence as it relates to the possession element of the crime—not to his knowledge of his status as a convicted felon. “When a defendant raises specific challenges to the sufficiency of the evidence in the district court, but not the specific challenge he tries to raise on appeal, we review his argument for plain error.” Id. at 664. 5 Case: 19-10846 Date Filed: 09/08/2020 Page: 6 of 11

proceeding would have been different. Molina-Martinez v. United States, 136 S.

Ct. 1338, 1343 (2016). “If he does so, we may, in our discretion, correct the plain

error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Reed, 941 F.3d at 1021 (alterations adopted and internal quotation

marks omitted). We may consult the whole record when considering the effect of

an error on a defendant’s substantial rights. Id.

Section 922(g)(1) prohibits the possession of firearms or ammunition by any

person who has been convicted of a crime punishable by imprisonment for more

than one year. A defendant who “knowingly” violates § 922(g) is subject to up to

ten years’ imprisonment. Id. § 924(a)(2). “In a prosecution under 18 U.S.C.

§ 922(g) and § 924(a)(2), the Government must prove both that the defendant

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

of persons barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. The jury

may infer a defendant’s knowledge of his status from circumstantial evidence. See

id. at 2198 (citing Staples v. United States, 511 U.S. 600, 615 n.11 (1994)); United

States v. Bates, 960 F.3d 1278, 1296 (11th Cir. 2020).

We agree that Paul’s indictment was defective under Rehaif because it failed

to charge that Paul “knew he belonged to the relevant category of persons barred

from possessing a firearm”—here, convicted felons. Rehaif, 139 S. Ct. at 2200;

see Moore, 954 F.3d at 1332–33, 1337. But that defect was not a jurisdictional

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one. See Moore, 954 F.3d at 1332–33, 1337; see also United States v. Cotton, 535

U.S. 625, 630 (2002) (defects in an indictment do not deprive a court of its power

to adjudicate a case). Paul’s argument that his indictment failed to charge a federal

crime in Count 1 because it omitted the knowledge-of-status requirement is

foreclosed by our decision in Moore. In that case, we held that an indictment

that—like Paul’s—cited to and tracked the language from 18 U.S.C. § 922(g)(1)

was sufficient to charge the federal crime of possession of a firearm by a convicted

felon, and that the failure to allege that the defendant knew of his status as a

convicted felon did not deprive the district court of jurisdiction. Moore, 954 F.3d

at 1332–33, 1337.

And while we recognize in hindsight that the failure to require the

government to prove that Paul knew that he was a convicted felon and the

omission of the knowledge element from the indictment, the jury charge, and the

verdict all constituted error under Rehaif, Paul cannot meet the plain-error

standard for reversal because he cannot show any reasonable probability that the

outcome of his trial would have been different if the errors had not occurred. See

Reed, 941 F.3d at 1021. The record leaves no doubt that Paul knew of his status

as a convicted felon.2 Paul stipulated to the fact that he had been convicted of a

2 Paul’s argument that Rehaif also requires proof that he knew the law—that is, that he knew that, as a felon, he was prohibited from possessing a firearm—is not well taken. Rehaif did not alter the longstanding principle that where “a defendant has the requisite mental state in respect 7 Case: 19-10846 Date Filed: 09/08/2020 Page: 8 of 11

crime punishable by a term of imprisonment in excess of one year. The judgment

of conviction for the prior felony—a copy of which was entered into evidence at

trial—showed that Paul had pleaded guilty in 2015 to the state crime of

possession of a firearm by a convicted felon. Because Paul admitted to being a

convicted felon in connection with that plea, there is no reasonable argument that

he was unaware of his felony status in 2018 when he committed the instant

offense. And because the record establishes that Paul knew that he was a felon

and that the government presented sufficient evidence from which the jury could

infer such knowledge, “he cannot prove that the errors affected his substantial

rights or the fairness, integrity, or public reputation of his trial.” Id. at 1022.

III.

Paul also raises two claims related to the revocation of his supervised release

based in part on the same criminal offenses at issue here. First, he argues that his

prosecution in this case was barred by the Double Jeopardy Clause because he had

already been punished for the same conduct when the district court revoked his

supervised release and imposed a 24-month sentence. And second, he contends

that the two-year sentence imposed upon the revocation of his supervised release

ought to count toward the statutory maximum sentences for the offenses

to the elements of the crime but claims to be ‘unaware of the existence of a statute proscribing his conduct,’” such “‘ignorance of the law’ (or a ‘mistake of the law’) is no excuse.” Rehaif, 139 S. Ct. at 2198 (citations omitted). 8 Case: 19-10846 Date Filed: 09/08/2020 Page: 9 of 11

prosecuted here—ten years for possession of a firearm as a convicted felon and

five years for possession with intent to distribute marijuana—so that when the

district court sentenced him to ten years for his firearm offense and five years for

his drug offense, his total sentences for those offenses exceeded the applicable

statutory maximums.

A.

We generally review claims of double jeopardy de novo, but when the issue

was not properly raised in the district court, we review for plain error only. United

States v. Campo, 840 F.3d 1249, 1267 (11th Cir. 2016). The government contends

that Paul failed to preserve his double-jeopardy claim because although Paul raised

the issue himself (during his allocution at sentencing), his appointed counsel did

not. See United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir. 1987) (“the

right to counsel and the right to proceed pro se exist in the alternative,” not

simultaneously); see also S.D. Fla. L.R. 11(d)(4) (“Whenever a party has appeared

by attorney, the party cannot thereafter appear or act on the party’s own behalf”

absent an order of substitution from the court.). We need not decide whether

Paul’s statements on his own behalf preserved the issue for appeal, however,

because his double-jeopardy claim fails under either standard.

The Double Jeopardy Clause provides that no person shall “be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.

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V. “This protection applies both to successive punishments and to successive

prosecutions for the same offense.” United States v. Woods, 127 F.3d 990, 991

(11th Cir. 1997).

Punishment imposed upon the revocation of supervised release is a

modification of the sentence imposed for the original offense; it is not punishment

for the conduct that violated the terms of supervised release. See Johnson v.

United States, 529 U.S. 694, 700 (2000); see also Woods, 127 F.3d at 992 & n.1

(discussing the revocation of probation and noting that “within the framework of

the Double Jeopardy Clause, there is no substantive distinction between revocation

of probation and supervised release”). There is no violation of the Double

Jeopardy Clause, therefore, when a defendant is prosecuted and punished for

criminal offenses that also led to the revocation of a term of supervised release

imposed for an earlier, separate offense. See Johnson, 529 U.S. at 700; Woods,

127 F.3d at 992. Because Paul’s earlier 24-month sentence was attributable to the

offense for which supervised release was imposed—the 2014 firearm offense—

Paul’s prosecution and sentencing for the 2018 drug and firearm offenses were not

barred by the Double Jeopardy Clause.

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B.

For similar reasons, we reject Paul’s contention that his sentences exceeded

the relevant statutory maximums.3 The sentence of imprisonment imposed

following the revocation of supervised release constituted a modification of the

sentence for Paul’s 2014 firearm offense, not punishment for the conduct that

violated the terms of his supervised release. See Johnson, 529 U.S. at 700; Woods,

127 F.3d at 992. Accordingly, when the district court sentenced him for the 2018

offenses, Paul had not yet been punished for those crimes, and the sentences

imposed were within (albeit at the upper limit of) the ranges provided by the

applicable statutes. See 18 U.S.C. § 924(a)(2); 21 U.S.C. § 841(b)(1)(D).

IV.

For the foregoing reasons, the Rehaif errors in Paul’s indictment and trial do

not warrant reversal of his § 922(g)(1) conviction under the plain-error standard,

and his sentences did not violate the Double Jeopardy clause or exceed the

applicable statutory maximums. Accordingly, we affirm.

AFFIRMED.

3 Because Paul failed to object to his sentences on this ground in the district court, our review is for plain error only. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). 11