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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10956
Non-Argument Calendar
________________________
D.C. Docket No. 8:17-cr-00090-SDM-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 22, 2020)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JORDAN, TJOFLAT and HULL, Circuit Judges.
HULL, Circuit Judge:
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After pleading guilty, Isaac Thomas appeals his convictions for possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (“Count 1”), and possession of a firearm within 1,000 feet of a school
zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“Count 2”). For the
first time on appeal, Thomas argues that: (1) both his Count 1 and Count 2 firearm
convictions should be vacated because the § 922(g)(1) and (q) statutes violate the
Commerce Clause and are unconstitutional; and (2) his Count 1 firearm conviction
should be vacated because his plea colloquy failed to establish that he knew that he
was a convicted felon at the time he possessed the firearm.
In 2019, this Court affirmed Thomas’s two convictions and total sentence.
United States v. Thomas, 767 F. App’x 758 (11th Cir. 2019). Thereafter, the
Supreme Court decided Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191
(2019), holding that in prosecutions under §§ 922(g) and 924(a)(2), the
government must prove that when the defendant possessed the firearm, “he knew
he belonged to the relevant category of persons barred from possessing a firearm,”
such as his status as a convicted felon or as an alien unlawfully in the country. See
Rehaif, 588 U.S. at ___, 139 S. Ct. at 2194-97, 2200.
On October 15, 2019, the Supreme Court granted Thomas’s petition for a
writ of certiorari, vacated our judgment, and remanded for reconsideration in light
of Rehaif. After that remand, we ordered supplemental briefing. After review, we:
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(1) restate substantial parts of our earlier opinion; (2) add relevant facts and legal
analysis as to Thomas’s plea and sentencing on Count 1; and (3) review anew
Thomas’s firearm conviction in Count 1 in light of Rehaif.
I. FACTUAL BACKGROUND
A. Offense Conduct
In January 2017, a fight broke out at a basketball game at a public high
school in Plant City, Florida. After the game ended, several people, including
Thomas, resumed the fight a few blocks away from the school. Local law
enforcement officers responded at the scene with their police car’s lights and siren
activated.
One officer saw Thomas emerge from the crowd while holding a firearm,
which Thomas fired. Thomas then took his firearm, ran down a road, and got into
the passenger side of a car. Officers pursued the car until it crashed. At that point,
Thomas abandoned the car and fled on foot. As Thomas attempted to flee, he was
shot by an officer and apprehended.
Officers recovered a Ruger 9-millimeter firearm, loaded with six live rounds
of 9-millimeter ammunition, approximately ten feet away from where Thomas was
apprehended. They also found a spent 9-millimeter shell casing in the place where
Thomas was standing when he fired the weapon. In later interviews with law
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enforcement officers, Thomas admitted to possessing the Ruger 9-millimeter
firearm and to firing it.
As a result, a federal grand jury indicted Thomas on Count 1, possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(“the § 922(g) offense”), and Count 2, possession of a firearm within 1,000 feet of
a school zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“the
§ 922(q) offense”). Under Count 1, the indictment alleged that Thomas was
prohibited from possessing a firearm due to a 2012 felony conviction for attempted
carjacking.1
B. Factual Basis for Thomas’s Guilty Plea
In August 2017, Thomas pled guilty pursuant to a written plea agreement.
As to Count 1, Thomas pled guilty to “knowingly possess[ing] . . . a firearm and
ammunition” after “having been previously convicted in any court of a crime
punishable by imprisonment for a term exceeding one year, including: Attempted
Carjacking, on or about August 21, 2012.” As to Count 2, Thomas pled guilty to
knowingly possessing a firearm “that had moved in and affected interstate
commerce” within 1,000 feet of the grounds of a school, a place Thomas knew or
had reasonable cause to believe was a school zone.
1
The indictment did not allege that Thomas was aware of his convicted felon status at the
time of the instant unlawful firearm possession. Thomas’s supplemental brief expressly
disclaims any Rehaif-based challenge to the sufficiency of his indictment.
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As part of his plea agreement, Thomas agreed to the following factual basis
for his plea. The factual basis stated, inter alia, that Thomas had previously been
“convicted of the felony of attempted carjacking” in 2012 and “[h]is right to
possess firearms and ammunition had not been restored.” Thereafter, on January
20, 2017, Thomas held and fired a firearm as he emerged from a crowd that was
watching a fight outside of a school. When police approached, Thomas fled on
foot and entered the passenger side of a car. Police pursued the car until it crashed.
As Thomas fled the vehicle, he was shot by police and apprehended. Officers
found Thomas’s loaded firearm, a 9-millimeter Ruger, approximately ten feet from
where he was apprehended and recovered a spent round of ammunition from the
spot where Thomas was standing when he fired the firearm outside the school.
During an interview with law enforcement, Thomas admitted having and firing the
Ruger, but denied pointing it at any law enforcement officer.
The factual basis also established that the Ruger 9-millimeter firearm
Thomas possessed traveled in or affected interstate commerce because it was
manufactured outside of Florida, where the instant offense occurred. Specifically,
Alcohol, Tobacco, Firearms, and Explosives Special Agent Walt Lanier examined
the firearm and determined that it was manufactured in Arizona.
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C. Plea Hearing
At his change-of-plea hearing, Thomas acknowledged that he had discussed
his plea agreement with his counsel and that he had not been induced or forced to
plead guilty. The magistrate judge reviewed the terms and conditions of Thomas’s
plea agreement, the rights Thomas was relinquishing by pleading guilty, the
consequences of pleading guilty, and the elements of the two charged offenses.
The magistrate judge summarized the elements of Thomas’s two charges.
As to Thomas’s § 922(g) offense in Count 1, the magistrate judge stated that the
government would be required to prove that: (1) before possessing the firearm on
or about January 20, 2017, Thomas was a convicted felon whose rights had not
been restored; (2) on or about January 20, 2017, Thomas knowingly possessed the
Ruger 9-millimeter firearm; and (3) the Ruger 9-millimeter firearm affected
interstate commerce, that is, it was manufactured outside the State of Florida.
Thomas agreed that he understood this § 922(g) charge and the elements of the
offense and pled guilty to Count 1. In response to the magistrate judge’s
questioning, Thomas confirmed that he was a convicted felon at the time he
possessed the firearm near the school. Thomas’s counsel agreed that the
government would be able to prove at trial that the firearm had traveled in
interstate commerce and that Thomas was a convicted felon.
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As to the § 922(q) offense in Count 2, the magistrate judge explained that
the government would be required to prove that: (1) Thomas knowingly possessed
the Ruger 9-millimeter firearm within 1,000 feet of a school zone; (2) Thomas had
reason to believe that he was in a school zone; (3) the firearm had traveled in or
affected interstate commerce at some point during its existence; and (4) Thomas
acted knowingly. Again, Thomas agreed that he understood the § 922(q) charge
and the elements of this offense and pled guilty to Count 2.
The magistrate judge found that Thomas was competent and capable of
entering an informed plea, that his plea was knowingly and voluntarily made, and
that his plea was supported by an independent factual basis containing all the
essential elements of his offenses. The magistrate judge recommended that
Thomas’s guilty plea be accepted. Without objection, the district court accepted
Thomas’s guilty plea and adjudged him guilty.
D. Presentence Investigation Report
Thomas’s presentence investigation report (“PSI”) assigned him a total
offense level of 34 and a criminal history category of III. Because the PSI found
that Thomas had fired the firearm at a law enforcement officer who was on the
scene, it recommended calculating Thomas’s offense level for Count 1, pursuant to
U.S.S.G. §§ 2K2.1(c)(1)(A) and 2X1.1(c)(1), by applying the base offense level
for attempted murder in § 2A2.1(a)(1).
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The criminal history portion of the PSI stated that Thomas had several prior
criminal convictions, including: (1) several juvenile adjudications for both felonies
and misdemeanors, the last of which resulted in Thomas being sentenced to one
year of imprisonment at the Florida Department of Juvenile Justice; (2) a January
31, 2011 conviction, pursuant to a guilty plea, for felony attempted carjacking in
Florida state court for which he initially was sentenced to 364 days in prison and
three years of probation, but after his probation was revoked on August 21, 2012,
he was sentenced to 13 months more in prison; and (3) two July 2012
misdemeanor convictions, pursuant to guilty pleas, for resisting an officer without
violence in Florida state court for which he was sentenced to 30 days in prison.
The PSI also stated that, in connection with his 2011 attempted carjacking
conviction, Thomas “had his civil rights to carry a firearm rescinded and they were
never restored.” The PSI assigned three criminal history points for Thomas’s
attempted carjacking conviction and one point each for Thomas’s resisting an
officer without violence convictions, for a total of five criminal history points.
The PSI’s guidelines calculations resulted in an advisory guidelines range of
188 to 235 months’ imprisonment. However, the statutorily authorized maximum
sentences for Count 1 under §§ 922(g)(1) and 924(a)(2) and Count 2 under §§
922(q)(2)(A) and 924(a)(4) were less than the minimum of Thomas’s advisory
guidelines range. Under §§ 922(g)(1) and 924(a)(2), the maximum term of
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imprisonment is ten years, and under §§ 922(q)(2)(A) and 924(a)(4), the maximum
term of imprisonment is five years. Also, the term of imprisonment for Count 2
under §§ 922(q)(2)(A) and 924(a)(4) had to run consecutive to any other term of
imprisonment imposed. See 18 U.S.C. § 924(a)(4). Therefore, Count 1’s adjusted
advisory guidelines range was reduced to 120 months’ imprisonment, the statutory
maximum. See U.S.S.G. § 5G1.1(a) (providing that, “[w]here the statutorily
authorized maximum sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the guideline
sentence.”). Count 2’s adjusted advisory guidelines range was reduced to 60
months’ imprisonment, the statutory maximum. See id.
Thomas filed objections to the PSI, including to whether he had fired his
firearm at an officer, most of which are not relevant to his appeal. We note
however, that in his objections, Thomas argued that he served a prison sentence of
one year and one month for his attempted carjacking offense and should have
received only two criminal history points. In response, the probation officer stated
that Thomas’s “total term of imprisonment for this conviction [was] two years and
30 days” and therefore three criminal history points were warranted under the
Sentencing Guidelines. This total imprisonment of two years and 30 days
consisted of: (1) his initial 364-day sentence, and (2) his subsequent 13-month
sentence after his probation revocation.
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Prior to sentencing, Thomas also filed a sentencing memorandum and
motion for a downward variance, requesting that the district court impose a total
sentence of 70 months’ imprisonment. In both his objections to the PSI and his
sentencing memorandum, Thomas did not argue (1) that § 922(g)(1) and (q) were
unconstitutional, or (2) that the plea colloquy omitted an essential element of either
of his charges.
E. Thomas’s Sentencing
A large part of Thomas’s sentencing was taken up with the issue of whether
Thomas fired the firearm at a law enforcement officer in an attempt to murder the
officer for purposes of calculating his offense level under U.S.S.G.
§§ 2K2.5(c)(1)(A), 2X1.1, and 2A2.1(a)(1). In that regard, the district court
viewed video evidence and heard testimony from two law enforcement officers
involved in Thomas’s apprehension and another officer who investigated the
officer-involved shooting of Thomas. Based on the evidence, the district court
found that Thomas had not intended to kill the law enforcement officer when he
fired the firearm in the direction of the officer. However, the district court rejected
Thomas’s argument that he merely fired the gun into the air to disburse the crowd
and found instead that the two-level reckless endangerment enhancement of
U.S.S.G. § 3C1.2 applied.
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As for his criminal history points, Thomas’s objection changed slightly.
Thomas argued that his attempted carjacking conviction should have received only
two criminal history points because he committed that offense as a juvenile. The
probation officer explained that even though Thomas was a juvenile at the time of
the offense, he was convicted as an adult, and his total sentence—the initial 364-
day prison term plus the 13-month prison term after Thomas’s probation
revocation—exceeded one year and one month for purposes of assigning three
criminal history points under U.S.S.G. § 4A1.2(d)(1). 2 [When Thomas’s counsel
agreed with the probation officer that the two sentences should be added together
to determine criminal history points, the district court overruled the objection.
Ultimately, the district court revised Thomas’s total offense level down to
32. Thomas’s criminal history category remained at III, which yielded an advisory
guidelines range of 151 to 188 months’ imprisonment. See U.S.S.G. Ch. 5 Part A.
The law enforcement officer in whose direction Thomas had fired the
firearm gave a victim impact statement. During his allocution, Thomas apologized
to anyone traumatized by his actions and stated that he had “made a mistake out of
impulse,” but was willing to accept responsibility for what he had done. Thomas
insisted, however, that he did not intend to hurt anyone and did not point or fire the
2
While the sentencing transcript indicates that the probation officer stated that Thomas’s
initial sentence was for 264 days, this appears to be a typographical error, as the PSI stated,
without objection, that the sentence was for 364 days.
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firearm at any law enforcement officers. After considering the parties’ arguments,
Thomas’s allocution, the advisory guidelines range, and the 18 U.S.C. § 3553(a)
factors, the district court imposed the statutory maximum 120-month sentence for
Thomas’s § 922(g) offense in Count 1, followed by a consecutive statutory
maximum 60-month sentence for Thomas’s § 922(q) offense in Count 2, for a total
of 180 months.
When the district court asked for objections, Thomas’s counsel stated that
Thomas objected to the procedural and substantive reasonableness of the sentence.
Throughout the district court proceedings, Thomas did not claim: (1) that his guilty
plea was involuntary; (2) that his plea colloquy omitted an essential element of his
§ 922(g) offense in Count 1; or (3) that he did not know he was a convicted felon.
II. 18 U.S.C. § 922(q): POSSESSION OF A FIREARM NEAR SCHOOL
On appeal and for the first time, Thomas argues that his Count 2 conviction
under 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) should be vacated because § 922(q)
is unconstitutional, both facially and as applied. 3 He notes that in United States v.
Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), the Supreme Court struck down the
Gun-Free School Zones Act of 1990, which was an earlier version of § 922(q),
because it exceeded Congress’s powers under the Commerce Clause. Although
3
We generally review the constitutionality of a statute de novo. United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010). However, where a defendant raises a constitutional
challenge for the first time on appeal, we review only for plain error. Id.
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Congress amended § 922(q) to comply with Lopez, Thomas argues that the
amended version is still unconstitutional because it did not cure the Commerce
Clause problems identified in Lopez and United States v. Morrison, 529 U.S. 598,
120 S. Ct. 1740 (2000). We review Lopez, Morrison, and then the amended
version of § 922(q).
A. Lopez and Morrison
In 1995, the Supreme Court held that a prior version of § 922(q), also known
as the Gun-Free School Zones Act of 1990, was unconstitutional because it
exceeded Congress’s authority under the Commerce Clause. Lopez, 514 U.S. at
551, 561-63, 115 S. Ct. at 1626, 1630-32; see Pub. L. No. 101-647, 101 Stat. 4789,
4844 (1990). The version of § 922(q) at issue in Lopez made it a federal offense
“knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551, 115 S. Ct.
at 1626.
The Supreme Court held that this version of § 922(q) violated the Commerce
Clause because it did not limit the offense to situations substantially affecting
interstate commerce. Id. at 561, 115 S. Ct. at 1630-31. In particular, the Lopez
Court pointed out that § 922(q) “contain[ed] no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearm possession in question
affect[ed] interstate commerce.” Id. at 561, 115 S. Ct. at 1631. The Court also
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observed that neither § 922(q) nor its legislative history contained express
congressional findings regarding the effects upon interstate commerce of gun
possession in a school zone. Id. at 562-63, 115 S. Ct. at 1631-32.
Subsequently in 2000, the Supreme Court struck down certain provisions of
the Violence Against Women Act as unconstitutional for exceeding Congress’s
authority under the Commerce Clause. Morrison, 529 U.S. at 605, 613, 617, 120
S. Ct. at 1747, 1751-52, 1754. While Morrison involved a wholly different statute,
Thomas cites Morrison for its dicta discussing the Lopez decision, its reasoning,
and its labeling of the “link between gun possession and a substantial effect on
interstate commerce” as attenuated. Id. at 609-14, 120 S. Ct. at 1749-52.
B. Post-Lopez Amendment to 18 U.S.C. § 922(q)
Responding to Lopez, Congress amended § 922(q) to include an express
interstate commerce requirement. See Pub. L. No. 104-208, § 657, 110 Stat. 3009-
369 to 370 (1996) (amending the Gun-Free School Zones Act of 1990). Section
922(q) now requires that the offender “knowingly [] possess a firearm that has
moved in or that otherwise affects interstate or foreign commerce at a place that
the individual knows, or has reasonable cause to believe, is a school zone.” 18
U.S.C. § 922(q)(2)(A) (emphasis added). Congress also amended § 922(q) to
include extensive congressional findings regarding the effects upon interstate
commerce of gun possession in a school zone. See 18 U.S.C. § 922(q)(1)(A)-(I).
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C. Thomas’s Constitutional Claims
As an initial matter, because Thomas failed to raise his constitutional
challenge to § 922(q) below, we review it for plain error. See United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010).
Although Thomas argues that the amended § 922(q) is facially
unconstitutional based on Lopez, Congress amended § 922(q) to include an explicit
“affecting interstate commerce” element to cure the deficiencies identified in
Lopez. See 18 U.S.C. § 922(q)(2)(A) (providing that the offender must possess “a
firearm that has moved in or that otherwise affects interstate or foreign
commerce”). The amended § 922(q) also includes extensive congressional
findings regarding the effects upon interstate commerce of gun possession in a
school zone post-Lopez, such as that firearms move easily in interstate commerce
and that they move in interstate commerce during their manufacturing process.
See 18 U.S.C. §§ 922(q)(1)(C), (D).
Thomas’s reliance on Morrison fares no better. Although the Supreme
Court in Morrison referenced an attenuated link between interstate commerce and
firearm possession in the pre-Lopez version of § 922(q), it did not address at all the
amended version of § 922(q), much less hold it is unconstitutional. See Morrison,
529 U.S. at 609-14, 120 S. Ct. at 1749-52.
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The government stresses that Thomas has not shown that § 922(q) is
unconstitutional. Our sister circuits under de novo review have rejected
constitutional challenges to § 922(q) that were similar to Thomas’s. See United
States v. Nieves-Castano, 480 F.3d 597, 601 (1st Cir. 2007); United States v.
Danks, 221 F.3d 1037, 1038-39 (8th Cir. 1999). At a minimum, Thomas has failed
to demonstrate plain error as to the constitutionality of § 922(q) because neither the
Supreme Court nor this Court has held that the amended § 922(q) is
unconstitutional. See United States v. Castro, 455 F.3d 1249, 1253 (11th Cir.
2006).
As to Thomas’s argument that § 922(q) is unconstitutional as applied to him,
the amended § 922(q) now requires a nexus to interstate commerce where the
firearm has moved in or otherwise affects interstate commerce. See 18 U.S.C.
§ 922(q)(2)(A). And the record here established that Thomas’s firearm had moved
in interstate commerce. The factual basis in Thomas’s plea agreement stated that
the firearm Thomas possessed traveled in or affected interstate commerce because
it was manufactured in Arizona and he possessed it in Florida. 4 Therefore,
Thomas has failed to show error, much less plain error, as to the constitutionality
4
As an additional point, at Thomas’s change-of-plea hearing, Thomas’s counsel
confirmed that the government would have been able to prove at trial that the firearm traveled in
interstate commerce.
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of § 922(q), and we affirm his Count 2 conviction under §§ 922(q)(2)(A) and
924(a)(4).
III. 18 U.S.C. § 922(g)(1): FELON IN POSSESSION OF A FIREARM
In his supplemental briefing, Thomas argues that we must vacate his
§ 922(g) conviction in Count 1 in light of Rehaif. In particular, Thomas contends
that because the district court failed to advise him about the additional knowledge
element announced in Rehaif (in Thomas’s case, knowledge of his status as a
convicted felon), his plea was not knowingly and voluntarily entered and must be
set aside.
A. Plain Error Review
Because Thomas did not raise a Rehaif-type claim in the district court, we
review his challenge to his guilty plea for plain error. See United States v.
Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005). Plain error occurs when
(1) there is error, (2) that is plain, and (3) that affected the defendant’s substantial
rights. Id. at 1019. “If all three conditions are met, we may exercise our discretion
to recognize a forfeited error, but only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotation marks and
alteration omitted).
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B. Thomas’s Rehaif Claim
Federal Rule of Criminal Procedure 11 requires that the district court during
the change-of-plea hearing, among other things, “inform the defendant of, and
determine that the defendant understands, . . . the nature of each charge to which
[he] is pleading.” Fed. R. Crim. P. 11(b)(1)(G).
Here, as Rehaif makes plain, the district court erred when it failed to advise
Thomas during the plea colloquy that knowledge of his status as a felon at the time
of his offense was an element of his §§ 922(g) and 924(a)(2) offense that the
government must prove. See Rehaif, 588 U.S. at ___, 139 S. Ct. at 2194-97. Thus,
in this direct appeal context, Thomas has shown error that is plain. The question
becomes whether Thomas can satisfy the third prong of plain error review.
To show that an error affected substantial rights in the guilty plea context,
the defendant “must show a reasonable probability that, but for the error, he would
not have entered his plea.” Moriarty, 429 F.3d at 1020; see also United States v.
Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). This Court
has indicated that the defendant’s burden with respect to the third prong of plain
error review is a “daunting obstacle” that is difficult to satisfy, and that, if the
record shows “that it is as likely that the error had no effect on [his] decision, he
cannot prevail.” United States v. Davila, 749 F.3d 982, 994 (11th Cir. 2014)
(quotation marks omitted, alteration in original). Based on the record as a whole,
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we conclude that Thomas has not met his burden to show that if the district court
had properly advised him of Rehaif’s knowledge element, then he would not have
entered a guilty plea.
First, as part of his plea, Thomas admitted that when he possessed the
firearm on January 20, 2017, he had already been convicted of the felony of
attempted carjacking in 2011 and that his right to possess firearms and ammunition
had not been restored. Likewise, at sentencing, Thomas did not object to the facts
in his PSI that he pled guilty to the attempted carjacking offense, that he was
sentenced to more than one year in prison (the initial 364-day prison term and the
additional 13-month prison term when his probation was revoked), and that his
civil rights to carry a firearm were rescinded and never restored. 5
In addition, the government stresses that the attempted carjacking offense to
which Thomas pled guilty in Florida state court was a serious, second-degree
felony punishable by up to 15 years in prison. See Fla. Stat. §§ 812.133(2)(b) &
777.04(1), (4)(c) (designating attempted carjacking as a second-degree felony);
Fla. Stat. § 775.082(3)(c)(2009) (providing a penalty of “imprisonment not
5
Thomas points out that, although he was sentenced to an additional 13-month prison
term on August 21, 2012, he was released from custody less than two months later on October 1,
2012. Thomas’s probation revocation was prompted by his arrest on May 14, 2012 for resisting
an officer without violence, and it is not clear from the record how much of the 13-month
sentence Thomas actually served before he was released. Whether Thomas served an additional
13 months, 5 months, or 6 weeks after his probation was revoked, the fact remains that, at
sentencing, Thomas did not dispute that he had served more than one year in prison for his
attempted carjacking conviction.
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exceeding 15 years” for a second-degree felony). Further, the state court that
accepted Thomas’s guilty plea was required by Florida law to first ensure that
Thomas understood that the statutory maximum penalty for his attempted
carjacking offense was 15 years’ imprisonment. See Fla. R. Crim. P. 3.172(c)(1)
(requiring the trial judge, before accepting a plea of guilty, to address the defendant
personally and determine on the record whether the defendant understands, among
other things, “the maximum possible penalty” provided by law); Ashley v. State,
614 So. 2d 486, 488 (Fla. 1993). Thomas does not point to anything in the record
to suggest that the state court judge who accepted his guilty plea failed to comply
with state law. See United States v. Burghardt, 939 F.3d 397, 404-06 (1st Cir.
2019) (concluding that the defendant failed to carry his burden on plain error
review to show a reasonable probability that he would not have pled guilty had the
district court advised him of Rehaif’s knowledge element based in part on an
analogous New Hampshire law requiring that the defendant be advised of his
maximum sentence and the fact that the defendant did not present evidence
indicating that the state court in his case did not conform to state law). This
record indicates, if anything, that Thomas was aware of his felon status when he
possessed the 9-millimeter Ruger in 2017. Notably, Thomas does not now claim,
and never has claimed, that he did not know he was a convicted felon and that he
would have proceeded to trial had he known that the government must prove this
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knowledge element. In this respect, the cases Thomas relies on stand in stark
contrast and hurt, rather than help, him. For example, in United States v. Brown,
the defendant was reluctant to plead guilty. Brown, 117 F.3d 471, 473 (11th Cir.
1997). At the plea colloquy, both the defendant and his counsel explained to the
district court that at the time of his offense, the defendant had not known that
structuring currency transactions was illegal and that he was convinced to plead
guilty only after his attorney showed him then-binding, but later overruled, caselaw
from this Circuit holding that knowledge of illegality was not an element of the
currency structuring offense. Id.
Similarly, the plea colloquy in the Second Circuit’s United States v. Balde
indicated that the defendant in that case would not have pled guilty had the district
court informed him, per Rehaif, that the government must prove he knew of his
status as an illegal alien. Balde, 943 F.3d 73, 95-98 (2d Cir. 2019). The defendant
in Balde “vigorously argued” in the district court that he was lawfully present in
the United States, preserved that issue for appellate review in his plea agreement,
and continued to maintain during his plea colloquy that he thought he had been
paroled into the United States at the time of his firearm offense. 6 Id. at 97; see also
6
We reject Thomas’s suggestion that either of these cases supports the proposition that a
district court’s plea colloquy omitting an element of an offense is per se reversible error. Balde
applied plain error review and determined, based “on the facts of this case,” that the defendant
had carried his burden to show that the error affected his substantial rights. See Balde, 943 F.3d
at 96-97. Brown involved an appeal of the denial of a 28 U.S.C. § 2255 motion in which the
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Case: 18-10956 Date Filed: 04/22/2020 Page: 22 of 22
United States v. Ochoa-Gonzalez, 598 F.3d 1033, 1037-38 (8th Cir. 2010)
(concluding that a defendant established plain error that affected her substantial
rights where she maintained at her plea hearing that she did not know until after
she was indicted that the number on her passport belonged to a real person, an
essential element of her aggravated identity theft offense of which she was not
advised).
In short, on plain error review, Thomas has the burden to show a reasonable
probability that he would not have pled guilty but for the district court’s Rehaif
error, and, on this record, Thomas has not done so. Accordingly, we affirm
Thomas’s Count 1 conviction under §§ 922(g) and 924(a)(2).
IV. CONCLUSION
For the reasons stated, we affirm Thomas’s convictions and sentence.
AFFIRMED.
“undisputed facts” showed not only that the defendant was misinformed about an element of his
offense, but that the “misinformation caused him to plead guilty.” Brown, 117 F.3d at 477.
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