from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:15-cr-00162-GAP-KRS-1
REMAND FROM THE UNITED STATES SUPREME COURT
WILLIAM PRYOR, NEWSOM and JULIE CARNES, Circuit Judges.
WILLIAM PRYOR, Circuit Judge.
appeal on remand from the Supreme Court requires us to
revisit Dan Reed's conviction for possessing a firearm as
a felon. After we affirmed Reed's conviction, United
States v. Reed, 752 Fed.Appx. 851 (11th Cir. 2018), the
Supreme Court issued its decision in Rehaif v. United
States, 139 S.Ct. 2191 (2019). The Court then granted
Reed's petition, vacated our judgment, and remanded his
appeal for reconsideration in the light of Rehaif.
At our direction, the parties filed supplemental letter
briefs addressing the effect of Rehaif on Reed's
conviction. Reed asks that we vacate his conviction or, in
the alternative, grant him a new trial because
Rehaif made plain that errors occurred when his
indictment failed to allege, his jury was not instructed to
find, and the government was not required to prove that he
knew he was a felon when he possessed the firearm. The United
States argues that we must "when addressing plain error
. . . evaluate a case . . . by viewing such a claim against
the entire record," United States v. Young, 470
U.S. 1, 16 (1985), and that the record establishes that Reed
knew of his status as a felon. Because we conclude that Reed
cannot establish the errors affected his substantial rights,
see Molina-Martinez v. United States, 136 S.Ct.
1338, 1343 (2016), we affirm his conviction.
trial, Reed stipulated that, "at the time of the alleged
crime, [he] previously had been convicted of a felony
offense, that is, a crime punishable by imprisonment for a
term in excess of one year" and that he "never has
had his civil rights restored, including the right to keep
and bear firearms and ammunition . . . ." Based on
Reed's stipulation, the United States redacted from
Reed's indictment the information about his eight prior
felony convictions in Volusia County, Florida. 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(e)(1).
trial, Reed acknowledged that he was not allowed to have a
gun and asserted an affirmative defense of justification.
When asked during cross-examination if "you knew you
weren't supposed to have that gun," Reed answered,
"Yes, sir." Reed argued that he was entitled to arm
himself while quarreling with his neighbor after having a
similar encounter the night before with unknown men who
battered him. See Reed, 752 Fed.Appx. at 853.
both parties rested, the district court instructed the jury
that it had to find beyond a reasonable doubt that Reed
"knowingly possessed" the firearm after being
convicted of a felony and reminded them that the
"stipulation . . . established that the Defendant had
been convicted of a prior felony." The district court
also instructed the jury on Reed's defense of
justification. The jury found Reed guilty of being a felon in
possession of a firearm. 18 U.S.C. § 922(g)(1).
presentence investigation report stated that he had been
incarcerated for lengthy terms before possessing the firearm.
Reed, 752 Fed.Appx. at 853. Reed did not object to
the statements in his report that he had served more than 18
years in prison following his conviction in 1990 for
unlawfully possessing with intent to sell or deliver a
controlled substance. The district court also found, over
Reed's objection, that he had served 30 months of
imprisonment following his conviction in 1987 for unlawfully
selling or delivering a controlled substance. Id. at
STANDARD OF REVIEW
review for plain error Reed's new challenges to his
indictment, United States v. Sperrazza, 804 F.3d
1113, 1118-19 (11th Cir. 2015), the jury instructions,
United States v. Joseph, 709 F.3d 1082, 1093 (11th
Cir. 2013), and the sufficiency of the evidence, United
States v. Baston, 818 F.3d 651, 664 (11th Cir. 2016).
Supreme Court clarified in Rehaif that, "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." 139 S.Ct. at 2200. As a result,
Rehaif abrogated United States v. Jackson,
120 F.3d 1226, 1229 (11th Cir. 1997), which held that a
defendant does not have to know of his status as a felon to
prove that he knowingly possessed a firearm after a felony