United States v. Titus Bates

Case: 18-12533 Date Filed: 05/28/2020 Page: 1 of 31

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-12533

D.C. Docket No. 1:13-cr-00501-ELR-JFK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TITUS BATES,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Georgia

(May 28, 2020)

Before BRANCH and MARCUS, Circuit Judges, and HUCK,* District Judge.

*
Honorable Paul C. Huck, Senior United States District Judge for the Southern District of Florida,
sitting by designation.
 Case: 18-12533 Date Filed: 05/28/2020 Page: 2 of 31

HUCK, District Judge:

BACKGROUND

This appeal arises from Defendant-Appellant Titus Bates’s convictions and

subsequent sentence for possession with intent to distribute marijuana, assaulting a

federal officer, discharging a firearm in relation to a crime of violence, and being a

felon in possession of a firearm. Bates now challenges his convictions and sentence,

arguing: 1) the district court erred in determining that 18 U.S.C. § 111(b) constitutes

a crime of violence under 18 U.S.C. § 924(c); 2) the district court erred in excluding

evidence relevant to his self-defense theory at trial; 3) the district court erred in

denying his motion for judgment of acquittal on the § 111 and § 924(c) counts; 4) his

360-month sentence is erroneous for various reasons; and 5) the Supreme Court’s

recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), necessitates

vacating his guilty plea to being a felon in possession of a firearm. For the reasons

discussed below, we find no error and, therefore, affirm Bates’s convictions and

sentence.

In the early morning hours of November 21, 2013, a task force of federal and

state officers executed a warrant for Bates’s arrest and a search of his residence for

drug-related offenses. The officers approached the side door to Bates’s home,

announced that they were the police, and commanded that the door be opened. After

no one answered, the officers began to ram the door. Shortly thereafter, Bates fired

2
 Case: 18-12533 Date Filed: 05/28/2020 Page: 3 of 31

two gunshots through the door, hitting one federal officer in the leg. Bates then

called 9-1-1 and told the operator “the police at my door” and to “please tell ‘em

don’t shoot me.” He also said, “I thought it was somebody trying to come in,” and

“I hope I ain’t shot people.” Bates eventually opened the front door and was taken

into custody.

When officers took Bates to a patrol car, Bates told Bureau of Alcohol

Tobacco and Firearms (“ATF”) Agent Kimberly Underwood that he did not know

the police were at his door and that he thought he was being robbed. After officers

put Bates in custody, they searched his residence and found approximately seven

pounds of marijuana in the kitchen, two shell casings in the living room, and Bates’s

firearm in the basement, indicating Bates had dropped it down a vent.

Consequently, Bates was indicted on five counts. The grand jury charged

Bates with assaulting a federal officer with a dangerous weapon in violation of 18

U.S.C. § 111 (Count 1); discharging a firearm in relation to a crime of violence in

violation of 18 U.S.C. § 924(c) (Count 2); possessing marijuana with intent to

distribute in violation of 21 U.S.C. § 841 (Count 3); discharging a firearm in relation

to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count 4); and

knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e) (Count 5). Bates pled guilty to the two possession counts

and proceeded to trial on the remaining counts.

3
 Case: 18-12533 Date Filed: 05/28/2020 Page: 4 of 31

Prior to trial, Bates filed a motion to dismiss Count 2, on the basis that § 111

did not qualify as a crime of violence for purposes of § 924(c). The district court

denied the motion. Bates also gave notice of his intent to rely on psychiatric

evidence related to a 2002 shooting incident. Specifically, in 2002, Bates answered

a knock at his door and was shot in the mouth and back in an apparent attempted

robbery. Bates intended to support his theory of self-defense by introducing

psychiatric testimony about the effects of the 2002 shooting on his actions in the

instant case, hospital records confirming that he had been shot in 2002, and the

statement he made to Agent Underwood. The district court excluded this evidence.

Ultimately, the jury found Bates guilty of assaulting a federal officer under

§ 111(b) and, because the district court instructed the jury that § 111(b) was a crime

of violence, guilty of discharging a firearm in relation to a crime of violence under

§ 924(c). The jury acquitted Bates of the remaining charge of discharging a firearm

in relation to a drug-trafficking crime.

At sentencing, Bates again argued that assault on a federal officer should not

be considered a crime of violence. In addition, Bates argued that his prior Georgia

convictions for possession of marijuana with intent to distribute were not predicates

for “career offender” status under § 4B1.1 of the United States Sentencing

Guidelines (the “Guidelines”), and “armed career criminal” status under the Armed

Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e). The district court rejected

4
 Case: 18-12533 Date Filed: 05/28/2020 Page: 5 of 31

these arguments. The district court also denied Bates a two-level reduction for

acceptance of responsibility, finding that his guilty pleas were a “strategic move”

and not an acceptance of responsibility. The district court sentenced Bates to thirty

years in prison, which he is now serving.

Bates appeals.

DISCUSSION

I. Crime of Violence Determination

First, Bates argues the district court erred by determining that his assault

conviction under 18 U.S.C. § 111 qualifies as a “crime of violence” under 18 U.S.C.

§ 924(c).1 The government responds that § 111 contains three separate crimes and,

at the very least, the sub-part under which Bates was convicted, § 111(b), qualifies

as a crime of violence. The government is correct. For the reasons discussed below,

we join five sister circuits and hold that a violation of § 111(b) qualifies as a crime

of violence.

A district court’s designation of an offense as a crime of violence is a question

of law subject to de novo review. See United States v. McGuire, 706 F.3d 1333,

1336 (11th Cir. 2013). To qualify as a crime of violence, an offense must meet the

1
Bates also challenges the district court’s determination that his conviction under § 111 qualifies
as a crime of violence under the Guidelines. The parties acknowledge that the Guidelines contain
an elements clause nearly identical to § 924(c) and, therefore, the same analysis applies. For the
reasons stated herein, § 111(b) also qualifies as a crime of violence under the Guidelines.

5
 Case: 18-12533 Date Filed: 05/28/2020 Page: 6 of 31

definition of § 924(c)’s “elements clause.”2 The elements clause defines a crime of

violence as a felony offense that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another.” 18

U.S.C. § 924(c)(3)(A). The term “use” means the “active employment” of physical

force. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The Supreme Court defines

“physical force” as “violent force – that is, force capable of causing physical pain or

injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010).

To determine whether a statute qualifies as a crime of violence, courts employ

the “categorical” approach. United States v. St. Hubert, 909 F.3d 335, 348 (11th Cir.

2018), abrogated on other grounds by United States v. Davis, 139 S. Ct. 2319

(2019). Under this approach, courts compare the elements of the crime to the

statutory definition, looking “only to the elements of the predicate offense statute”

and not “at the particular facts of the defendant’s offense conduct.” Id. However,

when a statute is “divisible” (defines multiple crimes), courts apply the “modified

categorical approach” and may look “to a limited class of documents (for example,

the indictment, jury instructions, or plea agreement and colloquy) to determine what

crime, with what elements, a defendant was convicted of.” Mathis v. United States,

136 S. Ct. 2243, 2249 (2016).

2
The statute also contains a “residual clause,” however the Supreme Court recently declared it
unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).

6
 Case: 18-12533 Date Filed: 05/28/2020 Page: 7 of 31

Section 111 provides:

(a) In general.--Whoever--

(1) forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in
section 1114 of this title while engaged in or on account of
the performance of official duties; or

(2) forcibly assaults or intimidates any person who
formerly served as a person designated in section 1114 on
account of the performance of official duties during such
person’s term of service,

shall, where the acts in violation of this section constitute
only simple assault, be fined under this title or imprisoned
not more than one year, or both, and where such acts
involve physical contact with the victim of that assault or
the intent to commit another felony, be fined under this
title or imprisoned not more than 8 years, or both.

(b) Enhanced penalty.--Whoever, in the commission of
any acts described in subsection (a), uses a deadly or
dangerous weapon (including a weapon intended to cause
death or danger but that fails to do so by reason of a
defective component) or inflicts bodily injury, shall be
fined under this title or imprisoned not more than 20 years,
or both.

18 U.S.C. § 111. We have held that § 111 establishes “three separate crimes, the

first two of which are contained in § 111(a), and the third in § 111(b)[,]” the

“enhanced penalty” provision. United States v. Siler, 734 F.3d 1290, 1296 (11th Cir.

2013). Thus, the statute is divisible, and the modified categorical approach applies.

The parties agree that Bates was convicted under § 111(b).

7
 Case: 18-12533 Date Filed: 05/28/2020 Page: 8 of 31

Still, Bates maintains that, even if § 111 is divisible, the enhanced penalty

provision does not qualify as a crime of violence. We disagree. The enhanced

penalty provision requires the government to prove that the defendant committed an

act described in § 111(a) and, in doing so, the defendant either: 1) used a

deadly/dangerous weapon or 2) inflicted bodily injury. See id. at 1296–97; 18

U.S.C. § 111(b). Each prong of § 111(b) transforms a § 111(a) act into a crime of

violence.

Bates argues that “because simple assault, the foundation of a § 111(b)

violation, does not include the element of physical force, no firearm or bodily injury

can alone supply that element[.]” Yet, § 111(a) of the statute requires the defendant

to act “forcibly.” We have defined “forcible assault” as “any willful threat or attempt

to inflict bodily injury upon the person of another when coupled with an apparent

present ability to do so, and includes any intentional display of force such as would

give the victim reason to fear or expect immediate bodily harm.” United States v.

Fallen, 256 F.3d 1082, 1087 (11th Cir. 2001) (quoting United States v. Renfro, 620

F.2d 497, 500 (5th Cir.1980)) (emphasis added). As the Sixth Circuit explained, “if

a statute has as an element some degree of, or the threat of, physical force in the

more general sense, then the use of a deadly weapon may transform this more general

force into the necessary violent force to constitute a crime of violence within the

meaning of Johnson[].” United States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016)

8
 Case: 18-12533 Date Filed: 05/28/2020 Page: 9 of 31

(quotation marks omitted).3 We agree. The use of a deadly weapon under § 111(b)

transforms a § 111(a) act into a crime of violence.

Likewise, a forcible assault that results in bodily injury constitutes a crime of

violence, as it necessarily requires the use of violent force. See United States v.

Taylor, 848 F.3d 476, 494 (1st Cir. 2017) (“If a slap in the face counts as violent

force under Johnson because it is capable of causing pain or injury a forcible act that

injures does, too, because the defendant necessarily must have committed an act of

force in causing the injury[.]”) (internal citation and quotation marks omitted). Bates

counters that “a simple assault in which the offender inflicts bodily injury on the

federal agent, also does not satisfy the [elements] clause because it fails Leocal’s

active employment standard.” The crux of Bates’s contention is that § 111(b) “does

not require proof that the defendant intended to bring about the injury,” and

therefore, the statute could be violated without the active employment of force.

However, Bates’s argument ignores that the statute requires the defendant to act

“forcibly” and, as discussed above, forcible assault means a “willful threat or attempt

to inflict bodily injury.” Fallen, 256 F.3d at 1087 (emphasis added). Bates does not

explain how one may accidentally commit a forcible assault that results in bodily

injury. The First Circuit rejected such an argument in Taylor, finding no support for

3
This is true whether the defendant makes physical contact with the officer or simply threatens
such contact. See id.

9
 Case: 18-12533 Date Filed: 05/28/2020 Page: 10 of 31

the assertion that “a defendant could be convicted of intentionally and forcibly

assaulting, yet accidentally using a dangerous weapon or injuring, a federal

employee.” Taylor, 848 F.3d at 494 (emphasis omitted). We reject the argument as

well. Using a firearm or causing bodily injury in the commission of a forcible assault

qualifies as a crime of violence.

Thus, as five other circuits have held, § 111(b) categorically qualifies as a

crime of violence under § 924(c)’s elements clause. See id. at 491–95 (holding that

§ 111(b) qualifies as a crime of violence under the elements clause of § 924(c));

Rafidi, 829 F.3d at 446 (same); United States v. Kendall, 876 F.3d 1264, 1270 (10th

Cir. 2017) (holding that § 111(b) qualifies as a crime of violence under the elements

clause of the Guidelines in § 4B1.2(a)); United States v. Hernandez–Hernandez, 817

F.3d 207, 214–17 (5th Cir. 2016) (holding that § 111(b) qualifies as a crime of

violence under the elements clause of the Guidelines in § 2L1.2); United States v.

Juvenile Female, 566 F.3d 943, 947–48 (9th Cir. 2009) (holding that § 111(b)

qualifies as a crime of violence under the elements clause of 18 U.S.C. § 16).

II. Excluded Evidence

Next, Bates argues that the district court erred by excluding: 1) Dr. Tomina

Schwenke’s psychiatric testimony regarding Bates’s mental state at the time he shot

the officer, 2) Bates’s hospitalization records from 2002, and 3) testimony regarding

his statement to ATF Agent Kim Underwood. Evidentiary rulings are reviewed for

10
 Case: 18-12533 Date Filed: 05/28/2020 Page: 11 of 31

abuse of discretion. United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005).

“Under the abuse-of-discretion standard, ‘a district court’s underlying legal

conclusions are reviewed de novo and its factual findings for clear error.’” United

States v. $70,670.00 in U.S. Currency, 929 F.3d 1293, 1300 (11th Cir. 2019)

(quoting Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009)). “A district court

abuses its discretion when it applies an incorrect legal standard, relies on clearly

erroneous factual findings, or commits a clear error of judgment.” Id.

A. Psychiatric Testimony

The parties dispute whether psychiatric evidence is inadmissible per se in

general-intent-crime prosecutions. This dispute raises important questions of law.

Below, we address the principles governing the admissibility of psychiatric evidence

and define the limited circumstances under which such evidence might be admissible

in general-intent-crime prosecutions. However, even under our clarified framework,

the district court did not abuse its discretion by excluding Dr. Schwenke’s testimony.

i. Admissibility of Psychiatric Evidence in General-Intent

Prosecutions

In the vast majority of cases, psychiatric evidence is inadmissible to negate

mens rea in general-intent prosecutions. Nonetheless, in rare circumstances, the

government will be required to prove a heightened mens rea element to secure a

conviction. In these rare cases, the mens rea element of a general-intent crime would

11
 Case: 18-12533 Date Filed: 05/28/2020 Page: 12 of 31

take on a “specific” nature susceptible to negation by psychiatric evidence. To best

convey when these rare circumstances might arise, we must start with the Insanity

Defense Reform Act of 1984 (the “IDRA”), 18 U.S.C. § 17.

The IDRA states:

(a) Affirmative defense.--It is an affirmative defense to a
prosecution under any Federal statute that, at the time of
the commission of the acts constituting the offense, the
defendant, as a result of a severe mental disease or defect,
was unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect does not
otherwise constitute a defense.

(b) Burden of proof.--The defendant has the burden of
proving the defense of insanity by clear and convincing
evidence.

18 U.S.C. § 17. The IDRA thus “eliminate[d] all other affirmative defenses or

excuses based upon mental disease or defect.” United States v. Westcott, 83 F.3d

1354, 1357–58 (11th Cir. 1996). In other words, “[t]hrough the Act, Congress

intended to prohibit the presentation of evidence of mental disease or defect, short

of insanity, to excuse conduct.” Id. at 1358. However, while the IDRA prohibits

psychiatric evidence to excuse or otherwise justify conduct, psychiatric evidence is

still admissible where it negates the mens rea of a specific intent crime. Id.; United

States v. Cameron, 907 F.2d 1051, 1061, 1064–66 (11th Cir. 1990). To be clear,

“[e]vidence that a defendant lacks the capacity to form mens rea is to be

distinguished from evidence that the defendant actually lacked mens rea. While the

12
 Case: 18-12533 Date Filed: 05/28/2020 Page: 13 of 31

two may be logically related, only the latter is admissible to negate the mens rea

element of an offense.” Westcott, 83 F.3d at 1358. Where the defendant claims to

have psychiatric evidence relevant to “an incapacity to reflect or control the

behaviors that produced the criminal conduct[,] [s]uch evidence is not ‘psychiatric

evidence to negate specific intent’ and should not be admitted.” Cameron, 907 F.2d

at 1066.

Further, in Cameron, we cautioned that:

[b]ecause psychiatric evidence (1) will only rarely negate specific
intent, (2) presents an inherent danger that it will distract the jury’s from
focusing on the actual presence or absence of mens rea, and (3) “may
easily slide into wider usage that opens up the jury to theories of defense
more akin to justification,” district courts must examine such
psychiatric evidence carefully to ascertain whether it would, if
believed, “support a legally acceptable theory of lack of mens rea.”

907 F.2d at 1067 (internal citations omitted).

We have held that § 111 is a general intent crime regardless of the subsection

at issue. See United States v. Ettinger, 344 F.3d 1149, 1154–55 (11th Cir. 2003);

United States v. Feola, 420 U.S. 671, 684 (1975) (holding that all § 111 “requires is

an intent to assault, not an intent to assault a federal officer”); see also United States

v. Alvarez, 755 F.2d 830, 842 (11th Cir. 1985) (explaining that all that § 111 requires

is an intent to assault and “[k]nowledge of the victim’s status as a federal officer is

not an element of the federal crime of assault under 18 U.S.C. § 111”). Thus, in

13
 Case: 18-12533 Date Filed: 05/28/2020 Page: 14 of 31

Ettinger, we held that a diminished capacity defense to a § 111 charge is unavailable.

344 F.3d at 1155.

Nevertheless, although § 111 is a general intent crime and knowledge of the

victim’s status is not an element, in Feola, the Supreme Court noted that, in certain

circumstances, the defendant’s state of knowledge may be relevant because

[t]he statute does require a criminal intent, and there may well be
circumstances in which ignorance of the official status of the person
assaulted or resisted negates the very existence of mens rea. For
example, where an officer fails to identify himself or his purpose, his
conduct in certain circumstances might reasonably be interpreted as the
unlawful use of force directed either at the defendant or his property.
In a situation of that kind, one might be justified in exerting an element
of resistance, and an honest mistake of fact would not be consistent with
criminal intent.

420 U.S. at 686. Accordingly, as we subsequently recognized in Alvarez, where a

defendant raises a claim of self-defense to a § 111 charge, “the government might

be required to prove that the defendant knew of the victim’s federal status in order

to obtain a conviction under [§ 111].”4 755 F.2d at 842, 844. Specifically, in Alvarez

we noted that the government has two avenues available to rebut a defendant’s self-

defense argument. Id. at 843. The government may prove that the defendant either:

1) used an unreasonable amount of force, or 2) knew the victim was a federal agent.

Id. Thus, where the facts show that the defendant used a reasonable amount of force,

4
“Nevertheless, even a claim of self-defense based on lack of knowledge of the victim's federal
status does not make knowledge an element of the crime under section 111.” Alvarez, 755 F.2d
at 843.

14
 Case: 18-12533 Date Filed: 05/28/2020 Page: 15 of 31

“the government might be able to negate the defendant’s claim of self-defense only

by proving that the defendant knew that his victim was a federal agent.” Id. at 844.

Consequently, in such an extraordinary case, non-insanity psychiatric evidence

might be admissible for the limited purpose of negating the criminal intent required

under § 111. In light of this clarification, the next question we must address in the

case at hand is whether the district court erred in excluding Dr. Schwenke’s

testimony. It did not.

ii. Dr. Schwenke’s Testimony

Here, the government sought to rebut Bates’s self-defense claim by proving

that he knew the victim was a federal officer. Theoretically, Bates may have been

able to introduce non-insanity psychiatric evidence to negate the criminal intent

required under § 111—but only if it would actually bear on his knowledge of the

victim’s status. At the trial, defense counsel acknowledged that Dr. Schwenke

would not be able to testify that Bates’s “thinking was rationally impaired.” But,

Bates argued that Dr. Schwenke could testify “about him having the diagnosis that

he does” and that condition’s effect on Bates. However, such testimony would not

seem to advance Bates’s self-defense argument that he did not know there were

law-enforcement officers at his door. Dr. Schwenke’s report states that:

[T]he accumulative effects of multiple issues likely cloud
Mr. Bates’s reasoning abilities. These deficits appear to
render Mr. Bates vulnerable particularly in highly
emotional situations, such as what happened during the

15
 Case: 18-12533 Date Filed: 05/28/2020 Page: 16 of 31

instant offense. Given the similar circumstances
surrounding his prior trauma and the instant offense, it is
likely that Mr. Bates re-experienced increased anxiety and
had a heightened need to protect himself, which rendered
his ability to think rationally impaired.

As defense counsel admitted, Dr. Schwenke went “just a step too far” in her

report because she may not testify to Bates’s alleged impaired “reasoning abilities”

or ability to think rationally. Such testimony would likely cross over into the

“affirmative defense” category of psychiatric evidence, which, per the IDRA, is

inadmissible to negate mens rea because it would excuse conduct based on a

defendant’s “inability or failure to engage in normal reflection.” See Cameron, 907

F.2d at 1066. Moreover, Dr. Schwenke’s broad observation, at most, shows that

Bates was likely to react irrationally to anyone attempting to gain entry to his home,

not, the conclusion that he did not know officers were at his door. Without such a

conclusion, even assuming one would be medically reliable, Dr. Schwenke’s opinion

that “[g]iven the similar circumstances surrounding his prior trauma and the instant

offense, it is likely that Mr. Bates re-experienced increased anxiety and had a

heightened need to protect himself,” does not bear on whether Bates knew officers

were at his door. Dr. Schwenke would have to provide the “link” between Bates’s

condition and the likelihood that, at the time of the offense, Bates did not know he

was shooting at law-enforcement officers. Defense counsel proffered no such link

16
 Case: 18-12533 Date Filed: 05/28/2020 Page: 17 of 31

and the report contains no such link. Therefore, the district court did not abuse its

discretion by excluding Dr. Schwenke’s testimony.

B. Hospital Records

Bates sought to introduce hospital records from 2002 which confirmed that he

was treated for gunshot wounds to his mouth and back. Bates planned to have Dr.

Schwenke relate the 2002 shooting to the instant case, but the district court excluded

her testimony. Nevertheless, Bates argues that the records “even without testimony,

should have been admitted as relevant to [his] statement in opening and because

[they were] relevant to his defense that his actions on November 21, 2013 were

affected by the prior shooting.”

At trial, Bates argued that the 2002 shooting was relevant to his defense

because the prior shooting changed his behavior, including making him more

“paranoid,” and this went to his “state of mind and the fact that he felt under these

particular circumstances that he needed to discharge a weapon to protect his life.”

However, the hospital records merely report that Bates was treated for gunshot

wounds; they do not indicate that Bates was the victim of a robbery or detail the

circumstances surrounding the shooting. The fact that Bates was treated for gunshot

wounds in 2002, without more, does not offer any insight into Bates’s state of mind

during the incident in this case. Moreover, the district court stated that it would have

admitted the hospital records if Bates offered a witness who observed the alleged

17
 Case: 18-12533 Date Filed: 05/28/2020 Page: 18 of 31

changes in Bates’s behavior following the 2002 shooting. Bates ultimately offered

no such witness.5 Consequently, the district court did not abuse its discretion by

excluding the hospital records given that there was no witness to explain how the

records related to the incident in this case. 6

C. Testimony of Agent Underwood

Bates argues that the district court abused its discretion by excluding his

statement to ATF Agent Kim Underwood that he “had previously been robbed and

did not know there were officers at his door.” Bates acknowledges that this

statement constitutes hearsay, but contends that the statement is admissible under

two exceptions to the hearsay rule: excited utterance and present sense impression.

Under Rule 803 of the Federal Rules of Evidence, a present sense impression is “[a]

statement describing or explaining an event or condition, made while or immediately

after the declarant perceived it.” Fed. R. Evid. 803(1). An excited utterance is “[a]

statement relating to a startling event or condition, made while the declarant was

under the stress of excitement that it caused.” Fed. R. Evid. 803(2).

5
After initially offering his brother as a witness, Bates informed the district court that his brother
would not testify and offered no other witnesses.
6
Bates cites to United States v. Wilk to support his argument that the hospital records could have
been admitted without a testifying witness. 572 F.3d 1229 (11th Cir. 2009). However, Wilk does
not support such a proposition. In Wilk, this Court held that the district court did not abuse its
discretion by admitting medical records referenced in expert witness testimony and denying the
defendant’s motion to suppress evidence and testimony relating to his medical records on the
grounds that the records were protected by Florida’s patient-psychotherapist privilege and HIPAA.
Id. at 1236.

18
 Case: 18-12533 Date Filed: 05/28/2020 Page: 19 of 31

The district court observed that “the excitement seems to have ended, and then

[Bates] makes the statement [to Agent Underwood].” We agree. Bates’s statement

does not qualify as an excited utterance because he was not “under the stress of

excitement” when he made the statement. Specifically, while Bates was clearly in

an excited state during the 9-1-1 call, he made no similar statement while speaking

with the 9-1-1 operator, while being arrested, while being calmed down after being

arrested, or while being escorted to the patrol car. By the time Bates reached the

patrol car and made this statement, it is improbable that, as Bates argued at trial, the

“physical altercation as he’s being arrested is what led to this statement[.]”

Similarly, the statement was not a present sense impression because it was not “made

while or immediately after [Bates] perceived” the event. While the statements he

made on the 9-1-1 call were “made while or immediately after [Bates] perceived”

the event, the later statement to Agent Underwood is simply too far removed to be a

present sense impression. Thus, the district court did not abuse its discretion by

finding that Bates’s statement did not meet either hearsay exception. Moreover, even

assuming arguendo that exclusion of this testimony was error, it did not affect

Bates’s substantial rights because his belief that someone was trying to break into

his home was admitted through the 9-1-1 recording. United States v. Abreu, 406

F.3d 1304, 1306 (11th Cir. 2005) (“[e]videntiary errors do not constitute grounds for

a reversal unless there is a reasonable likelihood that they affected the defendant’s

19
 Case: 18-12533 Date Filed: 05/28/2020 Page: 20 of 31

substantial rights; where an error had no substantial influence on the outcome, and

sufficient evidence uninfected by error supports the verdict, reversal is not

warranted.” (quoting United States v. Drury, 396 F.3d 1303, 1315 (11th Cir. 2005)).

III. Sufficiency of Evidence

Bates argues that the district court erred by denying his motion for judgment

of acquittal on the § 111 and § 924(c) counts because there was insufficient evidence

to prove beyond a reasonable doubt that he did not act in self-defense. The

government counters, arguing that a reasonable jury could find, and did find, that

there was sufficient evidence to show that Bates knew he was shooting at law-

enforcement officers, which rebuts Bates’s self-defense claim. We agree.

We review the denial of a motion for judgment of acquittal de novo, “applying

the same standard used in reviewing the sufficiency of the evidence[.]” United

States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). We review a challenge to the

sufficiency of the evidence de novo to “determine whether a reasonable jury could

have found the defendant guilty beyond a reasonable doubt.” United States v.

Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008). The evidence is viewed “in the light

most favorable to the government and all reasonable inferences and credibility

choices are made in the government’s favor.” Id. To uphold the denial of a motion

for judgment of acquittal, “we need only determine that a reasonable fact-finder

could conclude that the evidence established the defendant’s guilt beyond a

20
 Case: 18-12533 Date Filed: 05/28/2020 Page: 21 of 31

reasonable doubt.” Descent, 292 F.3d at 706 (quoting United States v. Hansen, 262

F.3d 1217, 1236 (11th Cir. 2001)).

Here, there is sufficient evidence for a jury to reasonably find that Bates did

not act in self-defense. To rebut Bates’s self-defense claim, the government offered

evidence to show that Bates knew his victim was a law-enforcement officer. This

evidence included: testimony that, prior to their entry, the officers shouted “police”

multiple times; testimony that, prior to the officers’ entry, one officer saw movement

in the house, from which a reasonable jury could infer that Bates was awake and

heard the officers’ shouts; testimony that a police car had its lights flashing which

could be seen from the living room; a recording of the 9-1-1 call in which Bates

states “the police at my door,” and in which the officers are heard yelling, indicating

that Bates would have been able to hear the team’s shouts. Thus, there was sufficient

evidence for a jury to find Bates did not act in self-defense. Accordingly, we find

no error in the district court’s denial of Bates’s motion for denial of acquittal.

IV. Challenges to Sentence

Bates challenges his sentence on three grounds. First, Bates contends that his

prior Georgia convictions for possession with intent to distribute marijuana do not

qualify as “serious drug offenses” or “controlled substance offenses.” Second, Bates

argues that he was entitled to a two-level reduction for acceptance of responsibility.

21
 Case: 18-12533 Date Filed: 05/28/2020 Page: 22 of 31

Third, Bates asserts that a 360-month sentence is substantively unreasonable. We

will address each in turn.

A. Bates’s Georgia Convictions

Bates argues that the district court erred in determining that his Georgia

convictions for possession with intent to distribute marijuana qualified as “serious

drug offenses,” under the ACCA, and “controlled substance offenses,” under the

Guidelines. Specifically, Bates argues that the Georgia statute, O.C.G.A.

§ 16-13-30(j)(1), is broader than the federal definitions, and, thus, his convictions

under that statute fail the categorical test. Bates’s claim that the Georgia statute

sweeps more broadly than the federal generic offense is foreclosed by the Supreme

Court’s recent decision in Shular v. United States, 589 U.S. ___, 140 S. Ct. 779, 782

(2020), which held that the ACCA’s “‘serious drug offense’ definition requires only

that the state offense involve the conduct specified in the federal statute; it does not

require that the state offense match certain generic offenses.” Thus, all we must

determine here is whether Bates’s Georgia convictions categorically involve the

conduct specified in the federal statute. See id.

Whether a conviction qualifies as a serious drug offense under the ACCA or

a controlled substance offense under the Guidelines is reviewed de novo. United

States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016) (standard of review for serious

22
 Case: 18-12533 Date Filed: 05/28/2020 Page: 23 of 31

drug offense under ACCA); United States v. Lange, 862 F.3d 1290, 1293 (11th Cir.

2017) (standard of review for controlled substance offense under the Guidelines).

For purposes of the ACCA, a “serious drug offense” is “an offense under State

law, involving manufacturing, distributing, or possessing with intent to manufacture

or distribute, a controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)) for which a maximum term of imprisonment of ten

years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Similarly, under

the Sentencing Guidelines, a “controlled substance offense” is defined as “an offense

under federal or state law, punishable by imprisonment for a term exceeding one

year, that prohibits the manufacture, import, export, distribution, or dispensing of a

controlled substance . . . or the possession of a controlled substance . . . with intent

to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).

O.C.G.A. § 16-13-30(j)(1) makes it “unlawful for any person to possess, have

under his or her control, manufacture, deliver, distribute, dispense, administer,

purchase, sell, or possess with intent to distribute marijuana.” The statute lists

simple “possession” of marijuana and “possession with intent to distribute” in the

disjunctive, which indicates that they are elements in the alternative (i.e. separate

offenses). See O.C.G.A. § 16-13-30(j)(1). Accordingly, O.C.G.A. § 16-13-30(j) is

divisible such that the modified-categorical approach applies.

23
 Case: 18-12533 Date Filed: 05/28/2020 Page: 24 of 31

Applying the modified-categorical approach, Bates’s PSI indicates that his

two prior Georgia convictions were for possession with intent to distribute

marijuana, not mere possession. Accordingly, the elements of Bates’s convictions

align with the conduct specified in the ACCA’s and the Guidelines’ definition of a

serious drug offense and a controlled substance offense, respectively. Consequently,

Bates’s prior Georgia convictions for possession of marijuana with intent to

distribute qualified as predicate offenses for both the ACCA and the Guidelines.

Shular, 589 U.S. at ___, 140 S. Ct. at 782.

B. Denial of Two-Level Reduction

Bates next argues that the district court erred in denying him a two-level

reduction for acceptance of responsibility by pleading guilty to the possession

charges (Counts 3 and 5). We review a district court’s determination that a defendant

has not accepted responsibility for clear error. United States v. Knight, 562 F.3d

1314, 1322 (11th Cir. 2009). We give “great deference on review” to such a finding,

and the district court’s determination “should not be disturbed unless it is without

foundation.” Id. (quoting United States v. Davis, 878 F.2d 1299, 1301 (11th Cir.

1989)).

The Guidelines instruct the sentencing judge to reduce the offense level by

two levels if the defendant “clearly demonstrates acceptance of responsibility for his

offense.” U.S.S.G. § 3E1.1(a) (emphasis added). The “adjustment is not intended

24
 Case: 18-12533 Date Filed: 05/28/2020 Page: 25 of 31

to apply to a defendant who puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted, and only then admits

guilt and expresses remorse.” Id. at § 3E1.1 cmt. (n.2).

Bates did not accept responsibility—he pleaded guilty to only two of the five

counts. Thus, Bates put the government to its burden on the three remaining counts.

Moreover, as the district court observed, even his two guilty pleas “were entered . . .

more as a benefit to Mr. Bates than under any acceptance of responsibility.” As

such, the district court did not clearly err by denying Bates a two-level reduction for

acceptance of responsibility. See United States v. Thomas, 242 F.3d 1028, 1034

(11th Cir. 2001) (holding that “acceptance of responsibility is all or nothing under

§ 3E1.1. A defendant who fails to accept responsibility for all of the crimes he has

committed and with which he has been charged is entitled to nothing under

§ 3E1.1.”).

C. Substantive Reasonableness of Sentence

Finally, Bates argues that his low-end of the Guideline range sentence of 360

months is substantively unreasonable. Essentially, Bates contends that the district

court weighed his criminal history too heavily and failed to consider other factors,

including Bates’s claims that he: acted in self-defense, had been traumatized in 2002,

had only served light sentences for his prior convictions, and had accepted

25
 Case: 18-12533 Date Filed: 05/28/2020 Page: 26 of 31

responsibility by pleading guilty to two counts. We find no merit in Bates’s

contentions.

The Supreme Court has stated that “courts of appeals must review all

sentences—whether inside, just outside, or significantly outside the Guidelines

range—under a deferential abuse-of-discretion standard.” Gall v. United States, 552

U.S. 38, 41 (2007). We will vacate a sentence for substantive unreasonableness only

if we are “left with the definite and firm conviction that the district court committed

a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Whyte, 928 F.3d 1317, 1338 (11th Cir. 2019) (quoting United States

v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)). “A district court’s sentence

need not be the most appropriate one, it need only be a reasonable one.” Id. (quoting

Irey, 612 F.3d 1191).

The district court here did not abuse its discretion by imposing a low-end

Guideline sentence. As an initial matter, Bates is incorrect in asserting that the

district court did not consider the other factors he raises on appeal. At the sentencing

hearing, the district court heard arguments and testimony regarding the nature of

Bates’s prior sentences, his purported acceptance of responsibility for his two guilty

pleas, and Bates’s assertion that, because he was traumatized by the 2002 incident,

he acted in self-defense. However, the district court considered the “key issue” to

26
 Case: 18-12533 Date Filed: 05/28/2020 Page: 27 of 31

be Bates’s criminal history of multiple prior felonies, most of which were drug

related, one of which involved a firearm, and another a knife. The district court

noted that Bates had been “given may chances,” but continued to reoffend, with his

crimes “escalat[ing] over the years.” After weighing these factors, the district court

sentenced Bates, not just within the Guideline range, but to the low-end of the range.

“We ordinarily expect that a sentence within the Guidelines is reasonable” and Bates

has not met his burden to show otherwise. See Whyte, 928 F.3d at 1338. Therefore,

the district court did not abuse its discretion.

V. Rehaif Challenge

In light of the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct.

2191 (2019), Bates asks the Court to vacate his conviction for being a felon in

possession of a firearm. We review this claim for plain error. United States v. Reed,

941 F.3d 1018, 1021 (11th Cir. 2019).

In Rehaif, the Supreme Court held that 18 U.S.C. § 922(g), when read in

conjunction with § 924(a)(2), requires not only that the defendant know that he

possesses a firearm, but also know of his status prohibiting him from doing so, i.e.

in Bates’s case, know that he is a felon. See Rehaif, 139 S. Ct. at 2195–96. Bates

contends that because his indictment omitted a mens rea element and failed to

reference § 924(a)(2), which contains the mens rea element, the district court was

without jurisdiction to accept his guilty plea. Of course, jurisdictional defects are

27
 Case: 18-12533 Date Filed: 05/28/2020 Page: 28 of 31

not waived by a guilty plea. See United States v. Peter, 310 F.3d 709, 712 (11th Cir.

2002). However, we recently held that the same Rehaif-based defect of which Bates

complains, is non-jurisdictional. See United States v. Moore, 954 F.3d 1322, 1332–

37 (11th Cir. 2020). In reaching this conclusion, we distinguished Peter, the primary

case on which Bates relies, noting that based on a Supreme Court decision entered

after Peter’s plea, his indictment no longer charged a crime, which is different from

simply omitting an element or “an allegation requisite to liability.” Id. (quoting

Peter, 310 F.3d at 715. Specifically, Peter’s guilty plea to a RICO conspiracy

predicated on mail fraud was based on his admission that he misrepresented license

applications that he mailed to a Florida agency, but subsequent to his plea, the

Supreme Court held that “‘state and municipal licenses . . . [are] not “property” for

purposes of [the mail fraud statute].’” Id. at 711 (quoting Cleveland v. United States,

531 U.S. 12, 15 (2000)). Thus, in light of Cleveland, Peter’s indictment, which was

based on allegations that he misrepresented state license applications, charged no

crime at all, rendering the defect jurisdictional. Id. at 715. Unlike Peter, however,

the appellants in Moore—and now Bates here—challenged the omission of Rehaif’s

mens rea element, and “[t]he absence of an element of an offense in an indictment

is not tantamount to failing to charge a criminal offense against the United States.”

Moore, 954 F.3d at 1333; United States v. Brown, 752 F.3d 1344, 1354 (11th Cir.

2014) (holding “that the omission from indictment of an element of the charged

28
 Case: 18-12533 Date Filed: 05/28/2020 Page: 29 of 31

offense is a non-jurisdictional defect”); see also United States v. Balde, 943 F.3d 73,

92 (2d Cir. 2019) (holding the omission of mens rea element in indictment charging

only § 922(g) was “not a jurisdictional defect”). To be clear, “[s]o long as the

indictment charges the defendant with violating a valid federal statute as enacted in

the United States Code, it alleges an ‘offense against the laws of the United States’

and, thereby, invokes the district court’s subject-matter jurisdiction.” Brown, 752

F.3d at 1354 (quoting Alikhani v. United States, 200 F.3d 732, 734–35 (11th Cir.

2000)).

However, a guilty plea does not waive all challenges to the plea itself, and a

defendant can still attack the “the voluntary and knowing nature of the plea.” Wilson

v. United States, 962 F.2d 996, 997 (11th Cir. 1992). In order for a plea to be

knowing and voluntary, “[the] court accepting a guilty plea must comply with [Fed.

R. Crim. P.] 11 and specifically address three ‘core principles,’ [including] ensuring

that a defendant . . . understands the nature of the charges.” United States v.

Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). Because Bates did not raise an

objection below, we review for plain error. United States v. Davila, 569 U.S. 597,

607 (2013). Therefore, Bates must show “a reasonable probability that, but for the

error, he would not have entered the plea.” Id. (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)). Bates fails to demonstrate such a probability.

29
 Case: 18-12533 Date Filed: 05/28/2020 Page: 30 of 31

At the plea hearing and at his sentencing, Bates did not object to or express

any confusion about the government’s assertion that he was a seven-time convicted

felon. Indeed, unlike in Rehaif, Bates does not assert that he was unaware of his

qualifying status. Had the government been required to prove that Bates knew he

was a felon at the time he possessed a firearm, there is overwhelming evidence to

show that it would have easily done so. As the Supreme Court stated in Rehaif, the

government’s obligation to prove knowledge is not “burdensome,” as “knowledge

can be inferred from circumstantial evidence.” Rehaif, 139 S. Ct. at 2198 (quoting

Staples v. United States, 511 U.S. 600, 615, n.11 (1994)). Had Bates known that the

government needed to prove that he knew he was a felon, the probability is virtually

zero that it would have changed his decision to plead guilty. See, e.g., United States

v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019) (rejecting Rehaif challenge to guilty

plea where there was “overwhelming proof that [defendant] knew that he had

previously been convicted of offenses punishable by more than a year in prison”).

This is especially true here because, as the district judge noted, Bates’s decision to

plead guilty to the felon-in-possession charge was a “smart strategic move,”

presumably to ensure that the jury was unaware that Bates was a convicted felon.

Bates’s logic remains the same post-Rehaif. Bates cannot credibly contend that he

would have changed his decision to plead guilty and, instead, have opted for the

30
 Case: 18-12533 Date Filed: 05/28/2020 Page: 31 of 31

government to prove that he knew he was a felon by offering evidence related to all

seven of his prior convictions.

Therefore, Rehaif does not require vacating Bates’s conviction for possessing

a firearm as a felon.

CONCLUSION

For the foregoing reasons, we affirm Bates’s convictions and sentence.

AFFIRMED.

31