United States v. Innocent, No. 19-10112

977 F.3d 1077

UNITED STATES of America, Plaintiff-Appellee,

v.James INNOCENT, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Elijah Hasan Jones, Defendant-Appellant.

No. 19-10112

No. 18-15210

United States Court of Appeals, Eleventh Circuit.

October 8, 2020

Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, H. Ron Davidson, U.S. Attorney's Office, Nicole D. Mariani, Emily M. Smachetti, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Michael Caruso, Federal Public Defender, Robin J. Farnsworth, Bernardo Lopez, Daryl Elliott Wilcox, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant-Appellant.

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

These appeals require us to decide whether to vacate the convictions of two defendants whose indictments were defective in the light of Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019), and if not, whether to vacate one defendant's sentence under the Armed Career Criminal Act. Juries convicted Elijah Jones and James Innocent of possessing firearms as felons. 18 U.S.C. § 922(g)(1). On direct appeal, each of them challenges his indictment as defective for failing to allege he knew he was a felon, as required by Rehaif . Because neither challenged his indictment before the district court, and neither can establish that he did not know he was a felon, we affirm both of their convictions. Jones additionally argues that he should not have been sentenced under the Armed Career Criminal Act. But he waived that challenge during his sentencing hearing, and the district court did not plainly err in any event.

I. BACKGROUND

Innocent and Jones both committed the crime of possessing a firearm as a felon. The facts underlying their convictions are different, but their appeals share common issues. We describe each one in turn.

A. James Innocent

On June 11, 2018, law enforcement officers arrived at James Innocent's apartment in Pompano Beach, Florida, to evict him. At the door, an officer noticed a bulge in Innocent's right front pocket. A frisk revealed the bulge to be a grocery bag containing about $2,300 in cash. Inside the apartment, officers noticed a firearm next to a mattress in the room where Innocent slept. They also noticed drugs in plain view. When they searched the apartment, officers found a smorgasbord of drugs: heroin, fentanyl, crack cocaine, methamphetamine, Xanax, MDMA, and marijuana, along with digital scales, body armor, and ammunition.

A grand jury indicted Innocent on counts of possessing drugs with intent to distribute them, 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i), and possessing a firearm as a convicted felon, id. § 922(g)(1). But the indictment did not allege that Innocent knew he was a felon when he possessed the firearm or cite the provision for that element, id. § 924(a)(2). And he did not challenge it on that basis before the district court.

Before trial, a forensic psychologist confirmed that Innocent was competent to be tried. Innocent's evaluation reflected a low intelligence quotient score. It also detailed that Innocent completed high school in special education classes, earned average grades, and was never held back in school. And it reported that Innocent "did not exert adequate effort on cognitive tasks" during the evaluation.

At trial, Innocent stipulated that he had been convicted of a felony offense before June 11, 2018. His four felony convictions, stemming from three separate prosecutions, were cocaine possession, Fla. Stat. § 893.13(1)(a)(1), § 775.082(3)(d) ; cocaine and marijuana possession, id. § 893.13(1)(a)(1) – (2), § 775.082(3)(d)–(e) ; and two convictions for possessing cocaine with intent to sell, id. § 893.13(1)(a)(1). A jury convicted Innocent of all the counts charged in the indictment, and the district court sentenced him to 360 months of imprisonment.

B. Elijah Jones

On the evening of January 10, 2018, two police officers patrolling the Little Haiti neighborhood of Miami spotted Jones standing by a car's passenger-side window and speaking to the driver. One officer executed a U-turn in his marked vehicle to tell the driver he was displaying a parking permit incorrectly. As the officer turned his car around, he saw Jones look at the marked vehicle, pull a dark object from his waistband, and toss it inside the car before walking away. On arrival, the officers found a loaded gun on the car's passenger-side floorboard. After detaining Jones and warning him of his rights, see Miranda v. Arizona , 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an officer asked Jones if the firearm was his. Jones said it belonged to his girlfriend. The officer then asked if the firearm was in Jones's possession. Jones denied possessing the gun. Asked a second time, he admitted to possessing the gun. The officer confirmed Jones was a felon and arrested him.

A grand jury returned a single-count indictment charging Jones with possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). Like Innocent's indictment, Jones's indictment did not allege Jones knew he was a felon or cite section 924(a)(2). Like Innocent, Jones did not challenge the indictment on that basis. Instead, he raises that challenge for the first time on appeal.

Although Jones's trial did not focus on whether he knew he was a felon, several moments bore on that issue. During its opening statement, the government explained that, "[a]s [Jones] saw [the two] police cars approach him, he dropped the gun into the passenger side of that vehicle. The defendant knew he was a convicted felon and knew he couldn't possess a firearm or even a single round of ammunition, but he had a loaded gun with 15 rounds of ammunition." The jury heard testimony that Jones told the officers on the scene that he was a felon. Jones also stipulated to being a felon. And during closing argument, the government noted that Jones's decision to quickly discard the gun when officers approached suggested that he knew he was not allowed to possess it. Last, the government sought permission to introduce evidence of Jones's previous Florida felon-in-possession conviction, but the judge denied the motion because the evidence would have been unnecessarily prejudicial based on the other evidence of Jones's felon status.

The jury convicted Jones, and the district court sentenced him to 180 months of imprisonment and four years of supervised release based on the 15-year mandatory minimum imposed by the Armed Career Criminal Act for defendants who have previously committed at least three violent felonies or serious drug crimes. 18 U.S.C. § 924(e). Jones had three such convictions: one for aggravated assault with a firearm, Fla. Stat. § 784.021 ; one for resisting an officer with violence, id. § 843.01; and one for selling drugs at a school, id. § 893.13(1)(c).

During his sentencing hearing, Jones conceded that all three convictions counted as qualifying offenses under the Act. His attorney explained that he "wanted to" object to the guideline calculation. Specifically, he said he "would have loved to file" an objection arguing that Jones did "not qualify as an armed career criminal." But after he "researched and researched and researched and researched," he couldn't find a ground to object to viewing "the aggravated assault [with] a firearm [conviction] from 2000" as a violent felony. "[T]he 11th Circuit," he explained, "has found that aggravated assault with a firearm, that's a crime of violence. So [he] couldn't object to that." He reaffirmed that he had "consulted with other people in [his] office" and couldn't identify "a good-faith basis to file any" objections. "And I think, unfortunately," he concluded, "it looks like the calculations are correct that [Jones] does qualify. ... I don't like it. But I couldn't file a legal objection[.]" At the end of the hearing, when the judge asked if there were any objections to the sentence he had imposed, Jones reiterated, "[F]or sentencing purposes, we don't have any objections to the sentencing."

II. STANDARD OF REVIEW

We review for plain error issues raised for the first time on appeal. United States v. Reed , 941 F.3d 1018, 1021 (11th Cir. 2019). We may reverse an error that was plain and that affects the defendant's substantial rights, provided it also seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Lejarde-Rada , 319 F.3d 1288, 1290 (11th Cir. 2003). An error is plain if it is "clear" or "obvious," United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) —that is, if "the explicit language of a statute or rule" or "precedent from the Supreme Court or this Court directly resolv[es]" the issue, United States v. Hesser , 800 F.3d 1310, 1325 (11th Cir. 2015) (quoting Lejarde-Rada , 319 F.3d at 1291 ). We evaluate the entire record, including evidence the jury did not hear, when reviewing for plain error. Reed , 941 F.3d at 1021. The party challenging the error bears the burden of proving that he had a "reasonable probability of a different result" absent the error. Dell v. United States , 710 F.3d 1267, 1276 (11th Cir. 2013) (internal quotation marks omitted). If a party invited the error, we may not review it on appeal. United States v. Love , 449 F.3d 1154, 1157 (11th Cir. 2006).

III. DISCUSSION

Innocent and Jones argue that we should vacate their convictions in the light of the decision of the Supreme Court in Rehaif . Because neither defendant raised this argument in the district court, we review for plain error. In addition, Jones challenges his career criminal sentence on the ground that one of the crimes the district court treated as a crime of violence, aggravated assault with a firearm, is not categorically a violent felony under the Armed Career Criminal Act. We address the arguments in...