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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-12266
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-20967-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRON DERRAIN CROMER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 14, 2020)
Before WILSON, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
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Darron Cromer pleaded guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1). He entered an unconditional
guilty plea, waiving all non-jurisdictional challenges to his indictment. See United
States v. Brown, 752 F.3d 1344 (11th Cir. 2014). He now appeals his conviction
and 70-month sentence. Cromer makes two arguments on appeal. First, he
contends that his indictment was jurisdictionally defective in light of Rehaif v.
United States, 139 S. Ct. 2191 (2019), because it did not allege that he knew he
was a felon or reference 18 U.S.C. § 924(a)(2). Second, he contends that his 70-
month sentence is procedurally and substantively unreasonable because the district
court did not adequately consider the mitigating evidence he submitted. Because
we conclude that the defect in Cromer’s indictment did not strip the district court
of jurisdiction and Cromer’s sentence was not unreasonable, we affirm.
I.
A grand jury charged Cromer in a one-count indictment with “knowingly
possess[ing] a firearm and ammunition . . . in violation of Title 18, [U.S.C.
§] 922(g)(1)” after “having been previously convicted of a crime punishable by
imprisonment for a term exceeding one year.” At a change of plea hearing before
the district court, Cromer entered an unconditional guilty plea to the single count in
the indictment. At that hearing, the prosecutor and defense attorney recounted
several of Cromer’s prior criminal convictions, including armed robbery,
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kidnapping, possession of cocaine, and fleeing and eluding. And the district court
questioned Cromer about a 1986 conviction for which he was sentenced to 30
years in prison. Cromer said he remembered the judge who sentenced him and
remembered that he served 19 years and 7 months in prison.
Before Cromer’s sentence proceeding, the probation office prepared a
Presentence Investigation Report. The PSR included, among others, the following
prior convictions: (1) a 1986 conviction for armed robbery, armed burglary, false
imprisonment with a weapon, and unlawful possession of a firearm while engaged
in a criminal offense, for which Cromer was sentenced to 30 years in prison; (2) a
2008 conviction for battery; (3) a 2009 conviction for petit theft; (4) 2013 and
2014 convictions for possession of cocaine; and (5) a 2017 conviction for fleeing
and eluding and resisting an officer. Based on the offense level and Cromer’s
criminal history category, the PSR calculated an advisory guidelines range of 70 to
87 months imprisonment.
Cromer requested a downward variance, arguing that his criminal history
category substantially overrepresented his criminal history because he had
committed some of the crimes “when he was 18 and over 30 years ago.” He did
not dispute any of the facts in the PSR. The government asked for a sentence of 80
months imprisonment, based largely on Cromer’s “egregious” criminal history and
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the nature of Cromer’s offense, which involved throwing a loaded firearm out of a
car window.
At Cromer’s sentence hearing, the district court noted that it was
“concerned” with Cromer’s conviction for armed robbery, and was “very
concerned” with his conviction for kidnapping and his possession of a loaded gun.
The court also expressed its “worry about [Cromer] doing . . . violent things.” It
noted that, although Cromer had been given a lengthy prison sentence for his 1986
convictions, it did not think Cromer had been “over-sentenc[ed], particularly
considering the actual time” Cromer served and in light of the facts of that crime.
The district court asked Cromer’s attorney to “tell [it] the good things that
[Cromer] has done, the charitable work, the people he has helped” since he was out
of prison. Cromer’s attorney said that Cromer had been taking care of his sick
mother and had started a business that had been operating for about ten years. His
attorney also argued that, even though Cromer had been convicted of several
crimes since being released after his 1986 convictions, he had “never been arrested
or convicted for a gun offense since that case.”
After hearing from Cromer, the district court found a sentence of 70 months
imprisonment — the bottom of the guidelines range — appropriate in light of the
factors in 18 U.S.C. § 3553(a). The district court noted that, given Cromer’s age
(51 at the time), the difference between 70 and 87 months in prison “probably
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doesn’t make any difference to anybody except [Cromer].” Cromer timely
appealed.
II.
After Cromer filed his notice of appeal, the Supreme Court held in Rehaif v.
United States that a defendant’s knowledge of his status as a felon is an element of
the crime of being a felon in possession of a firearm. 139 S. Ct. 2191, 2200 (2019)
(“[I]n 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.”). Rehaif overturned our precedent that a defendant need not know his
status as a felon to be convicted of being a felon in possession of a firearm. See
United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019).
In light of Rehaif, Cromer has established an error in his indictment. Rehaif
made clear that a defendant’s knowledge of his status as a felon is an element of
§ 922(g)(1). It was error not to allege that knowledge in the indictment. See Reed,
941 F.3d at 1021. And Cromer’s indictment did not allege that he knew he was a
felon. But we must still determine whether, in light of his unconditional guilty
plea, Cromer is entitled to relief for that error. See Brown, 752 F.3d at 1347–48
(holding that an unconditional guilty plea waives all non-jurisdictional challenges
to an indictment). He is not.
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Cromer points to two defects in his indictment that he contends deprived the
district court of jurisdiction: the indictment did not specifically allege that Cromer
had knowledge of his status as a felon, and it omitted any reference to 18 U.S.C.
§ 924(a)(2), the penalty provision for § 922(g)(1). Neither defect deprived the
district court of jurisdiction.
We review de novo a challenge to the district court’s subject-matter
jurisdiction. United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016).
District courts have jurisdiction over “all offenses against the laws of the United
States.” 18 U.S.C. § 3231. In light of § 3231, the district court has jurisdiction to
hear a criminal case “[s]o long as the indictment charges the defendant with
violating a valid federal statute as enacted in the United States Code.” Brown, 752
F.3d at 1354. An indictment that omits an element of a criminal offense is
defective, but that defect “do[es] not deprive a court of its power to adjudicate [the]
case.” United States v. Cotton, 535 U.S. 625, 630 (2002). We have recognized
jurisdictional defects in indictments that charged: a crime that does not exist in the
United States Code; conduct that falls outside the sweep of the charging statute; or
a violation of something, such as a regulation, that is not a law for purposes of
criminal liability. Brown, 752 F.3d at 1353 (discussing cases).
Cromer’s indictment, although defective, was sufficient to give the district
court jurisdiction over his case. It charged Cromer with violating a law of the
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United States: § 922(g)(1). And, even though it omitted an element — knowledge
of Cromer’s status as a felon — “an indictment’s omission of an element of the
crime does not create a jurisdictional defect.” Id. at 1349.
The indictment’s failure to reference to 18 U.S.C. § 924(a)(2), the penalty
provision for § 922(g)(1), also did not deprive the district court of jurisdiction.
Rehaif did not conclude that the knowledge-of-status element came solely from
§ 924(a)(2). See Rehaif, 139 S. Ct. at 2195–97 (discussing both § 922(g) and
§ 924(a)(2), and relying on both the language of § 924(a)(2) and “the presumption
in favor of scienter” that operates “even when Congress does not specify any
scienter in the statutory text” to conclude that § 922(g) requires a criminal
defendant to have knowledge of his prohibited status). Cromer argues that because
his indictment did not specifically reference § 924(a)(2), it charged a non-offense
and deprived the district court of jurisdiction. But Cromer’s indictment referenced
a criminal statute, § 922(g)(1), and alleged conduct that was criminal, so the cases
he relies on for this argument are inapplicable. See United States v. Izurieta, 710
F.3d 1176, 1184 (11th Cir. 2013) (holding that the indictment was jurisdictionally
defective because it “d[id] not charge a crime”); United States v. Peter, 310 F.3d
709, 714 (11th Cir. 2002) (holding that the indictment was jurisdictionally
defective because it alleged conduct “that, as a matter of law, was outside the
sweep of the charging statute”); United States v. Meacham, 626 F.2d 503, 510 (5th
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Cir. 1980) (holding that the indictment was jurisdictionally defective because it
had charged “a nonoffense”).1
The error in Cromer’s indictment did not deprive the district court of
jurisdiction under § 3231, so he waived his challenge to the sufficiency of his
indictment by entering an unconditional guilty plea. 2
III.
Cromer also argues that his sentence was procedurally and substantively
unreasonable. We review the reasonableness of a sentence for an abuse of
discretion. United States v. Alberts, 859 F.3d 979, 985 (11th Cir. 2017). In
determining whether a sentence is procedurally reasonable, we must “ensure that
the district court committed no significant procedural error” at sentencing, such as
failing to consider the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S.
38, 51 (2007). And we review substantive reasonableness in light of the totality of
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
2
Even if Cromer had not waived his challenge to the indictment, he would still not be
entitled to relief. Because Cromer never raised this challenge in the district court, we would
review for plain error. See United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019). To
prevail, Cromer would have to show “that an error occurred that was both plain and that affected
his substantial rights.” Id. To show that his substantial rights were affected, he would have to
“show a reasonable probability that, but for the error, the outcome of the proceeding would have
been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quotation
marks omitted). But he can’t make that showing because the record is clear that he knew he was
a felon when he possessed the firearm and ammunition at issue. See Reed, 941 F.3d at 1022
(“Because the record establishes that Reed knew he was a felon, he cannot prove that the errors
affected his substantial rights . . . .”).
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the circumstances and the purposes of 18 U.S.C. § 3553(a). Alberts, 859 F.3d at
985. A sentencing court abuses its discretion only when it “(1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Irey, 612 F.3d
1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). We ordinarily
expect a sentence imposed within the guidelines range to be reasonable. United
States v. Croteau, 819 F.3d 1293, 1309–10 (11th Cir. 2016).
Cromer’s sentence is procedurally and substantively reasonable.
As to procedural reasonableness, the district court sufficiently considered the
§ 3553(a) factors, including Cromer’s history and characteristics. It specifically
asked Cromer’s counsel to address “the good things that [Cromer] has done, the
charitable work, the people he has helped” since he was out of prison. It also
addressed Cromer’s argument for leniency based on the lengthy sentence he had
served for his armed robbery conviction, but found that Cromer’s earlier sentence
was not “over-sentencing, particularly considering the actual time that [Cromer]
did.” The court acknowledged Cromer’s criminal history, noted its concern with
his robbery and kidnapping convictions, and expressed “worry about [Cromer]
doing . . . violent things.” These statements show that the district court “listened to
each argument. . . . [and] considered the supporting evidence.” Rita v. United
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States, 551 U.S. 338, 358 (2007). Cromer’s sentence was not procedurally
unreasonable.
As to substantive unreasonableness, Cromer was sentenced within the
guidelines range, and identifies nothing that defeats our ordinary expectation that
such a sentence is reasonable. See Croteau, 819 F.3d at 1309–10. The district
court pointed to Cromer’s lengthy criminal history, which involved several violent
offenses, and the seriousness of Cromer’s crime as supporting a sentence within
the guidelines range. But the court also took into account Cromer’s personal
characteristics, including his age, to conclude that a sentence at the bottom of the
guidelines range was appropriate. As a result, Cromer’s sentence was not
substantively unreasonable.
AFFIRMED.
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