United States v. Sholley-Gonzalez, No. 19-2914 (8th Cir. 2021)
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The Eighth Circuit affirmed defendant's conviction for violating 18 U.S.C. 922(g)(8) and 922(a)(6), concluding that the indictment was sufficient to give defendant notice where he could have easily read the definition on the order form and known that S.O. was an intimate partner and that he was restricted from firearm and ammunition possession. The court explained that section 922(g)(8) simply does not require that the court-order form identify the protected party as an intimate partner. Rather, section 922(g)(8) requires only that the order protect an intimate party in fact. The court rejected defendant's contention that he was denied due process. The court also concluded that the district court's error under Rehaif v. United States, 139 S. Ct. 2191 (2019), was harmless where a rational fact finder could infer that defendant had knowledge of his status under section 922(g)(8) beyond a reasonable doubt because he was aware of the facts that met the statutory requirements for the court order.
However, the court remanded for resentencing. The court concluded that, because USSG 2K2.1(b)(2) does not contemplate attempted firearm purchases, the district court erred by including defendant's attempted purchase in its analysis. Because there is a reasonable probability that the sporting-use reduction would have applied to defendant's offense-level calculation, he has shown plain error.
Court Description: [Smith, Author, with Wollman and Loken, Circuit Judges] Criminal case - Criminal law and sentencing. The indictment was sufficient to allege an offense under 18 U.S.C. Sec. 922(g)(8) even though the state court protection order did not identify defendant's then-girlfriend as an intimate partner; the section does not require that the state court order form identify the protected party as an intimate partner and requires only that the order protect an intimate partner in fact; the prosection did not deny defendant due process as defendant had sufficient warning that the protective order limited his ability to possess firearms; Rehaif argument rejected as defendant stipulated to all of the facts that fit him into the Sec. 922(g)(8) category; because Guidelines Sec. 2KI2.1(b)(2) does not contemplate attempted firearm purchases, the district court erred by including defendant's attempted purchase of a shotgun in its analysis; there is a reasonable probability that the sporting-use reduction would have applied to defendant's offense-level calculation and he has established plain error; remanded for resentencing. Judge Loken, dissenting in part on the Rehaif issue.
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