United States v. Joshua Scott

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 23, 2020
• Docket: 18-15045
• Status: Unpublished

Opinion

Case: 18-15045 Date Filed: 09/23/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15045 Non-Argument Calendar ________________________

D.C. Docket No. 5:18-cr-00033-TES-CHW-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSHUA SCOTT,

Defendant-Appellant.

________________________

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

(September 23, 2020)

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-15045 Date Filed: 09/23/2020 Page: 2 of 9

Joshua Scott appeals his conviction and 63-month prison sentence for

possession of a firearm after being convicted of a felony, in violation of 18 U.S.C.

§ 922(g)(1) and 924(a)(2). Scott argues that his conviction should be vacated

because the indictment failed to allege, and the district court failed to ascertain when

accepting his guilty plea, his knowledge of his status as a convicted felon, as required

by Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191 (2019). After careful

review, we affirm.

I.

In April 2018, a federal grand jury returned an indictment alleging that “Scott,

having been convicted of a crime punishable by imprisonment for a term exceeding

one year, did knowingly possess in and affecting interstate and foreign commerce, a

firearm . . . , in violation of Title 18, United States Code, Sections 922(g)(1) and

924(a)(2).” Scott later pled guilty to that offense under a written plea agreement.

According to a factual stipulation in the plea agreement, Scott was found in

possession of a Mossberg 12-gauge pump shotgun in February 2017. During an

interview with a federal agent in January 2018, Scott admitted to possessing the

weapon for protection and admitted that he had a prior felony conviction.

At the change-of-plea hearing in August 2018, the district court conducted the

plea colloquy required by Rule 11, Fed. R. Crim. P. At the court’s request, the

government explained the elements of the offense as follows:

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Number one, that the Defendant knowingly possessed the firearm. Number two, at the time he possessed the firearm the Defendant had previously been convicted of a crime punishable by imprisonment for a term exceeding one year. Third, and finally, that the possession of the firearm was in or affecting commerce.

In response to the court’s questions, Scott advised that he understood those elements

and affirmed the plea agreement’s recitation of the facts of his offense. The district

court accepted Scott’s guilty plea as knowingly and voluntarily made.

Scott’s presentence investigation report (“PSR”) recommended a guideline

range of 70 to 87 months of imprisonment based on a total offense level of 23 and a

criminal history category of IV. Scott’s criminal history, according to the PSR,

included a conviction for robbery by force, for which he was sentenced to serve eight

years in prison. Scott served at least five years for this offense.

At Scott’s sentencing in January 2019, the district court adopted the PSR over

Scott’s objection, which is not relevant to this appeal. Scott asked for a sentence

below the guideline range, while the government asked for a sentence within that

range. Scott personally addressed the court, accepting responsibility for his actions

but also asserting that he was “a victim of circumstance” in part due to “being a

convicted felon” and an associated lack of resources, rehabilitation services, and

opportunity. After a thoughtful discussion with the defendant, the court imposed a

sentence of 63 months in prison. This appeal followed.

II.

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After Scott filed this appeal, but before it was briefed, the Supreme Court

decided Rehaif, which concerned what mens rea the government must prove in

prosecutions under §§ 922(g) and 924(a)(2). 139 S. Ct. 2191 (2019). Section 922(g)

makes it unlawful for certain categories of persons to possess a firearm, including

those who have previously been convicted of a felony. 18 U.S.C. §§ 922(g). Section

§ 922(g) is violated when the following elements are present: (1) a status element

(being in the relevant category of barred persons—here, having a prior felony

conviction); (2) a possession element (to “possess”); (3) a jurisdictional element (“in

or affecting commerce”); and (4) a firearm element (“firearm or ammunition”).

Rehaif, 139 S. Ct. at 2195–96. Section 924(a)(2) adds that anyone who “knowingly

violates” § 922(g) shall be fined or imprisoned for up to 10 years. 18 U.S.C.

§ 924(a)(2).

The issue in Rehaif was whether “knowingly” applies not only to the

possession and firearm elements but also to the status element. Rehaif, 139 S. Ct. at

2194. In this Circuit before Rehaif, as in other circuits, the government was not

required to prove that the defendant knew he had the relevant status when he

possessed the firearm. See id. at 2195; e.g., United States v. Palma, 511 F.3d 1311,

1315 (11th Cir. 2008). The Supreme Court rejected this construction of the statute

and held that “knowingly” applies to the status element as well. Rehaif, 139 S. Ct.

at 2195–97. Accordingly, in a prosecution under §§ 922(g) and 924(a)(2), “the

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[g]overnment 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.” Id. at 2200. Thus, as applied here, the government was required to prove

that Scott knew he had the relevant status—that he “has been convicted in any court

of[] a crime punishable by imprisonment for a term exceeding one year,”

§ 922(g)(1)—when he possessed the firearm. See id. at 2194.

In light of Rehaif, Scott contends that his indictment is jurisdictionally

defective and that his guilty plea must be vacated as unknowing and involuntary.

III.

We begin with Scott’s attack on the indictment. Scott argues that the

indictment, by omitting the knowledge-of-status element required by Rehaif,

violated his Fifth Amendment right to be charged based on a grand-jury finding of

probable cause and his Sixth Amendment right to fair notice of that element.

“An indictment must set forth the essential elements of the offense.” United

States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015) (concluding that an

indictment was “fatally deficient” because it failed to allege a mens rea element).

Scott is correct that his indictment is defective because it fails to set forth an essential

element of a § 922(g)(1) offense: that at the time of possession he knew he had

previously been convicted of a crime punishable by imprisonment for a term

exceeding one year. See Rehaif, 139 S. Ct. at 2200.

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But a guilty plea waives all non-jurisdictional defects that occurred before

entry of the plea. United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014).

And we recently held that the same Rehaif error of which Scott complains is a non-

jurisdictional defect that is waived by a guilty plea. United States v. Bates, 960 F.3d

1278, 1295 (11th Cir. 2020); United States v. Moore, 954 F.3d 1322, 1336–37 (11th

Cir. 2020). Because Scott’s challenge is limited to the indictment’s failure to charge

knowledge under §§ 922(g)(1) and 924(a)(2), he waived any such challenge by

pleading guilty—assuming, of course, that his guilty plea is valid. See Bates, 960

F.3d at 1295–96 (“[A] guilty plea does not waive all challenges to the plea itself, and

a defendant can still attack the “the voluntary and knowing nature of the plea.”

(quotation marks omitted)). We turn to that issue now.

IV.

Scott maintains that his guilty plea violated due process because it was

involuntary. It was involuntary, in Scott’s view, because he did not know at the time

he entered his plea an essential element of the offense to which he pled guilty. He

contends that this error is structural in nature “because it violates not only the

fundamental rights waived, but the defendant’s overarching right to autonomy, in

deciding whether to plead guilty or go to trial.” Even if the error is not deemed

“structural,” according to Scott, it caused him prejudice—regardless of whether he

would have entered a guilty plea had he known of the Rehaif element—because he

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was deprived of the opportunity to investigate the government’s evidence of that

element, to negotiate regarding that element, or to put the element to the jury.

Despite Scott’s claim that Rehaif error is structural, we have consistently

reviewed Rehaif arguments raised for the first time on appeal for plain error,

including in the guilty-plea context. See Bates, 960 F.3d at 1296 (“Because Bates

did not raise an objection [to the validity of his guilty plea based on Rehaif] below,

we review for plain error.”) United States v. McLellan, 958 F.3d 1110, 1118–20

(11th Cir. 2020) (reviewing a Rehaif-based challenge to the validity of a guilty plea

for plain error); Moore, 954 F.3d at 1337–38 (reviewing a claim of Rehaif error for

plain error following a jury trial); United States v. Reed, 941 F.3d 1018, 1021 (11th

Cir. 2019) (same). Because Scott raised his challenge to the validity of his guilty

plea for the first time on appeal, we review for plain error. See Bates, 860 F.3d at

1296; McLellan, 958 F.3d at 1120.

“To establish plain error, a defendant must show there is (1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Moriarty, 429 F.3d

1012, 1019 (11th Cir. 2005). If all three conditions are met, we may choose to

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

judicial proceedings. Id. The first two requirements are met here because, under

Rehaif, the district court’s failure to inquire into Scott’s knowledge of his status was

an obvious error. See Rehaif, 139 S. Ct. at 2194, 2200; United States v. Bane, 720

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F.3d 818, 830 (11th Cir. 2013) (“The relevant time period for assessing whether an

error is plain is at the time of appellate consideration.” (quotation marks omitted)).

For the third prong of plain-error review, the defendant ordinarily must show

a reasonable probability that, absent the error, the outcome of the proceeding would

have been different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343

(2016). In the guilty-plea context, that means showing “a reasonable probability

that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004). When determining whether an error

affected a defendant’s substantial rights, we “may consult the whole record.” United

States v. Vonn, 535 U.S. 55, 59 (2002).

Scott’s argument that the ordinary burden on the third prong does not apply—

that is, that he need not prove a reasonable probability of a different result—is

foreclosed by our recent decisions in Bates and McLellan. See United States v. Vega-

Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (“Under the prior precedent rule, we

are bound to follow a prior binding precedent unless and until it is overruled by this

court en banc or by the Supreme Court.” (quotation marks omitted)). Like Scott, the

defendants in these cases argued that their guilty pleas were not knowing or

voluntary because the indictment and plea colloquy omitted the knowledge-of-status

element required by Rehaif. See Bates, 960 F.3d at 1296; McLellan, 958 F.3d at

1120. In each case, we held that the defendant, to obtain relief on appeal, must

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“show a reasonable probability that, but for the error, he would not have entered the

plea.” Bates, 960 F.3d at 1296 (quotation marks omitted); McLellan, 958 F.3d at

1120 (“McLellan cannot demonstrate a reasonable probability that, but for the error,

he would not have entered the plea.” (quotation marks omitted)). Based on this

standard, we concluded that the defendants had failed to prove that the omission of

the knowledge-of-status element affected their substantial rights, so we affirmed

their convictions. See id.

Here, Scott has not established that he would not have pled guilty had he

known of Rehaif before pleading guilty. The record shows that at the time of the

offense, Scott knew he had been convicted of a crime punishable by more than a

year in prison because he had served more than five years in prison for the felony

offense of robbery by force. Scott also stipulated in the plea agreement that he had

admitted to being a felon when interviewed about the offense by a federal agent, and

he does not assert on appeal that he was unaware of his qualifying status. See Bates,

960 F.3d at 1296 (“Bates does not assert that he was unaware of his qualifying

status.”). On this record, Scott has not demonstrated a reasonable probability that,

had he been properly advised of what we now know are the elements of the offense,

he would not have entered the plea. See Bates, 960 F.3d at 1296; McLellan, 958

F.3d at 1120. We therefore affirm his conviction.

AFFIRMED.