United States v. Wallace Gilmore

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2021
• Docket: 20-10270
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 13 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10270

Plaintiff-Appellee, D.C. No. 4:18-CR-00040 HSG v.

WALLACE GILMORE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Junior, District Judge, Presiding

Submitted October 8, 2021** San Francisco, California

Before: FRIEDLAND and HAWKINS, Circuit Judges, and MCSHANE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. Wallace Gilmore appeals his conviction following a bench trial on the charge

of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). We

have jurisdiction under 28 U.S.C. § 1291 and affirm.

Gilmore’s first assignment of error is that his prior conviction for Possession

of Marijuana for Sale under section 11359 of the California Health and Safety Code

was no longer a predicate felony when he possessed a firearm. While California’s

Proposition 64 reclassified many marijuana offenses, individuals with prior felony

convictions, like Gilmore, needed to petition to have them reclassified as

misdemeanors. Cal. Health & Safety Code § 11361.8(e); People v. Rascon, 216 Cal.

Rptr. 3d. 385, 392–93 (Ct. App. 2017). Gilmore never petitioned to reclassify his

conviction until after his arrest with a firearm. Because California still considered

Gilmore a felon at the time of his arrest, his marijuana conviction still counted as a

predicate offense under 18 U.S.C. § 922(g). See United States v. Carr, 513 F.3d

1164, 1168 (9th Cir. 2008).

Gilmore’s next assignment of error is that under Rehaif v. United States, 139

S. Ct. 2191 (2019), the government failed to meet its burden of proving that Gilmore

was aware of his felony status at the time of his arrest with a firearm. But in Greer

v. United States, 141 S. Ct. 2090, 2096 (2021), the Court clarified that unpreserved

Rehaif claims—even in proceedings that took place prior to the Rehaif decision—

are reviewed under a plain-error standard. At his bench trial and again at his

2 sentencing, Gilmore stipulated that when he was convicted of violating section

11359(b) of the California Health and Safety Code, it was classified as a felony

punishable by a term of imprisonment exceeding one year. Gilmore also

acknowledged at his change-of-plea hearing in 2009 that he was pleading guilty to

a felony. So, like the defendants in Greer, Gilmore cannot prove with “a reasonable

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

different.” Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles v. United States, 138

S. Ct. 1897, 1904–05 (2018); see also id. at 2098 (“[D]emonstrating prejudice under

Rehaif ‘will be difficult for most convicted felons for one simple reason: Convicted

felons typically know they’re convicted felons.’” (quoting United States v. Lavalais,

960 F.3d 180, 184 (5th Cir. 2020))).

AFFIRMED.