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United States v. Reed

United States Court of Appeals, Eleventh Circuit

October 28, 2019

DAN REED, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cr-00162-GAP-KRS-1


          Before WILLIAM PRYOR, NEWSOM and JULIE CARNES, Circuit Judges.

          WILLIAM PRYOR, Circuit Judge.

         This 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.

         I. BACKGROUND

         Before 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).

         During 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.

         After 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).

         Reed's 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 854.


         We 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).


         The 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 ...

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