USA V. TYRONE DAVIS, No. 19-10066 (9th Cir. 2022)
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Following entry of Defendant’s guilty plea and his two sentencing proceedings, the Supreme Court clarified in Rehaif v. United States, 139 S. Ct. 2191 (2019), that to be a felon in possession of a firearm in violation of Section 922(g)(1), a defendant must know that they belonged to the relevant category of persons barred from possessing a firearm.
Defendant argued that the government’s failure to list the knowledge of status element in his indictment should invalidate his conviction. The Ninth Circuit held that Defendant, who had been incarcerated for more than three years for his prior felony convictions and pointed to nothing in the record suggesting that he would have entered a different plea but for the indictment’s deficiency, failed to satisfy the third and fourth prongs of plain error review.
Defendant further argued that the district court’s failure to advise him of the knowledge of status element during the plea colloquy rendered his guilty plea unconstitutionally involuntary and unknowing. The court concluded that there was no plain error requiring reversal, where none of Defendant’s confusion was related to the elements of the Section 922(g)(1) charge, the court already determined in a prior memorandum disposition that his plea was constitutionally valid despite any confusion, and the record contains indisputable evidence of prior felony convictions.
Finally, the court held that Defendant’s predicate conviction is not sufficient to trigger the enhancement. The court deferred to the government’s concession, declining to decide whether Bautista controls.
Court Description: Criminal Law. The panel affirmed Tyrone Davis’ conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing. Following entry of Davis’ guilty plea and his two sentencing proceedings, the Supreme Court clarified in Rehaif v. United States, 139 S. Ct. 2191 (2019), that to be a felon in possession of a firearm in violation of § 922(g)(1), a defendant must know that they belonged to the relevant category of persons barred from possessing a firearm. Davis made two arguments in light of Rehaif: • He argued that the government’s failure to list the knowledge of status element in his indictment should invalidate his conviction. The panel held that Davis, who had been incarcerated for more than three years for his prior felony convictions and pointed to nothing in the record suggesting that he would have entered a different plea but for the indictment’s deficiency, failed to satisfy the third and fourth prongs of plain error review. • He argued that the district court’s failure to advise him of the knowledge of status element during the UNITED STATES V. DAVIS 3 plea colloquy rendered his guilty plea unconstitutionally involuntary and unknowing. The panel concluded that there was no plain error requiring reversal, where none of Davis’ confusion was related to the elements of the § 922(g)(1) charge, this court already determined in a prior memorandum disposition that his plea was constitutionally valid despite any confusion, and the record contains indisputable evidence of prior felony convictions. Davis also argued that the district court improperly applied a sentence enhancement pursuant to U.S.S.G. § 2K2.1(a) on the ground that his prior Nevada conviction under N.R.S. § 453.337 for possession with intent to sell marijuana constituted a conviction for a “controlled substance offense” under U.S.S.G. § 4B1.2(b). Following briefing, the parties notified the court that under United States v. Bautista, 989 F.3d 698 (9th Cir. 2021) (holding that a conviction for attempted transportation of marijuana under Arizona law was facially overbroad and not a categorical match for a “controlled substance offense”), Davis’ predicate conviction is not sufficient to trigger the enhancement. The panel deferred to the government’s concession, declining to decide whether Bautista controls. Judge VanDyke, joined by Judge Ikuta, concurred. He joined the majority opinion in full because the government conceded that Bautista controls and Davis should be resentenced without his 2011 marijuana conviction constituting a controlled substance offense. He wrote separately to explain why that concession was unnecessary, why Bautista does not control this case, and why this court should be careful not to rely on Bautista in a way that renders impotent the realistic probability test outlined by the 4 UNITED STATES V. DAVIS Supreme Court, thus unnecessarily piling more problems on top of the already problematic categorical approach.
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