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Date: 11-21-2021
Case Style:
United States of America v. Deangelo Lenard Johnson
Case Number: 19-10915
Judge: Robin S. Rosenbaum
Court: N THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
On appeal from The United States District Court
for the Middle District of Florida
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Atlanta, GA - Criminal defense lawyer represented defendant with a domestic violence by strangulation and assault charge.
In 1996, Congress prohibited anyone convicted of a misdemeanor that
involved domestic violence from possessing a firearm. See 18 U.S.C. § 922(g)(9).
Senator Frank Lautenberg, who sponsored the legislation, noted that at that time,
each year, somewhere between 1,500 and several thousand women were killed in
domestic-violence incidents involving guns, and guns were present in 150,000 cases
involving domestic violence. 142 Cong. Rec. 22985 (1996) (statement of Sen.
Lautenberg).
Yet, Senator Lautenberg observed, many of the perpetrators of “serious
spousal or child abuse ultimately are not charged with or convicted of felonies. At
the end of the day, due to outdated laws or thinking, perhaps after a plea bargain,
they are, at most, convicted of a misdemeanor.” Id. at 22985. Seeking to “close this
dangerous loophole,” United States v. Hayes, 555 U.S. 415, 426 (2009) (quoting 142
Cong. Rec. 22986 (1996) (statement of Sen. Lautenberg)), Congress banned those
who have been convicted of a “misdemeanor crime of domestic violence”—one
where the victim was essentially a member or former member of the perpetrator’s
family, and the crime necessarily involved physical force—from possessing a
firearm. See 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).
Recently, in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), the
2
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Supreme Court clarified that a domestic-violence misdemeanant does not violate this
prohibition on firearm possession if he does not know he is a domestic-violence
misdemeanant at the time he possesses a gun. This case raises the question of what
it means for a person to know he is a domestic-violence misdemeanant. As we
explain below, we conclude that a person knows he is a domestic-violence
misdemeanant, for Rehaif purposes, if he knows all the following: (1) that he was
convicted of a misdemeanor crime, (2) that to be convicted of that crime, he must
have engaged in at least “the slightest offensive touching,” United States v.
Castleman, 572 U.S. 157, 163 (2014) (internal citations omitted), and (3) that the
victim of his misdemeanor crime was, as relevant here, his wife.
The record establishes that Defendant-Appellant Deangelo Johnson knew all
these things at the time he was found in possession of a gun. So we reject Johnson’s
challenge to his conviction for being a domestic-violence misdemeanant while
possessing a firearm. We similarly find no merit to his equal-protection and
Commerce Clause arguments. For these reasons, we affirm Johnson’s conviction.
I.
In 2010, law enforcement responded to a call and found that Deangelo
Johnson had “punched, strangled, and threatened to pistol whip” his wife. The
responding officer observed numerous bruises and scratches all over Johnson’s wife.
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Based on Johnson’s conduct, the State of Florida charged him with the felony
crime of domestic violence by strangulation and assault. Represented by counsel,
Johnson engaged in plea negotiations with the state. Ultimately, Johnson pled guilty
to and was convicted of misdemeanor battery against his wife, in violation of Fla.
Stat. § 784.03(1). He eventually was sentenced to six months in jail for this
conviction.1
Eight years later, in 2018, police officers found a gun on the floor of Johnson’s
car while he was being arrested for an outstanding warrant. A federal grand jury
indicted Johnson for having been “previously convicted of a misdemeanor crime of
domestic violence, that is, Domestic Battery,” and knowingly possessing a firearm,
in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). The indictment did not allege
that Johnson knew of his status as a domestic-violence misdemeanant when he
possessed the firearm.
Johnson moved to dismiss his federal indictment for failure to state an offense.
He argued that his Florida offense did not qualify as a misdemeanor crime of
domestic violence for purposes of 18 U.S.C. § 922(g)(9) because he had never lost
his civil rights, and 18 U.S.C. § 921(a)(33)(B)(ii) renders § 922(g)(9) inapplicable
to any person who has been convicted of a misdemeanor crime of domestic violence
1 Initially, Johnson was sentenced to two days in jail and a year of probation. But after two
violations of probation, the court revoked his probation and sentenced him to six months in jail.
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but, as relevant here, has had his civil rights restored. Johnson did not challenge the
indictment on the basis that he did not know that he had been convicted of the
misdemeanor in 2010 for battery against his wife.
The district court denied Johnson’s motion to dismiss, relying on Logan v.
United States, 552 U.S. 23 (2007). In Logan, the Supreme Court held that a nearidentical rights-restoration exception in the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 921(a)(20), applied to only those individuals who had had their civil
rights restored but not to those who had never lost their civil rights in the first place.
552 U.S. at 37.
Johnson then waived his right to a jury trial and agreed to a stipulated-facts
bench trial. Under those stipulated facts, Johnson confirmed that he had previously
been convicted of a misdemeanor crime of domestic violence when he pled guilty in
2010 to committing Florida misdemeanor domestic battery against his wife. He also
confirmed that officers later found a pistol on the floor of his car when they arrested
him for an outstanding warrant. The district court made oral findings of fact and
concluded that based on the stipulated facts, Johnson was guilty of violating 18
U.S.C. § 922(g)(9).
Johnson’s presentence investigation report (“PSR”) recommended a total
offense level of 12, with a criminal-history category of II, corresponding to an
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advisory Guidelines sentencing range of 12 to 18 months’ imprisonment. Johnson
did not object to the facts or Guidelines calculations in his PSR.
At Johnson’s sentencing hearing, Johnson argued for a variance to a sentence
of time served plus one day because he did not “know that he was not supposed to
possess a firearm.” Johnson explained that he was unaware of the firearm
prohibition because he was not a convicted felon—and therefore not advised he
could not possess a firearm—and as a misdemeanant, he was not prohibited from
possessing a firearm by Florida law. The district court acknowledged that “this is
an unusual offense in that it isn’t often that individuals end up before the Court
charged with something that they can genuinely say they didn’t know was unlawful,
and that under the circumstances of this case, it is significant.” The court imposed
the sentence Johnson requested, reasoning that “under the somewhat unusual facts
of this case that is an appropriate sentence.”
Johnson timely appealed his conviction. We stayed briefing until the Supreme
Court issued its decision in Rehaif holding that, under 18 U.S.C. § 922(g),
knowledge of status is an element of unlawful possession of a firearm. Johnson now
relies on Rehaif in seeking to vacate his conviction. He asserts that both the
indictment and the stipulated facts at the bench trial were insufficient under Rehaif
because they failed to allege and prove that Johnson knew he was a domesticviolence misdemeanant. Separately, he argues that Section 922(g) is
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unconstitutional because (1) it violates his equal-protection rights by treating him
less favorably than similarly situated people convicted of misdemeanor crimes of
domestic violence who lost their civil rights and had them restored, and (2) it violates
the Commerce Clause.
We begin with Johnson’s Rehaif arguments. As we have noted, Rehaif
clarified that to convict a defendant of illegal possession of a firearm under Section
922(g), the government must prove that “the defendant knew he possessed a firearm
and also that he knew he had the relevant status when he possessed it.” 139 S. Ct.
at 2194. Johnson’s relevant status under Section 922(g) is that of a domesticviolence misdemeanant under 18 U.S.C. § 922(g)(9).
For purposes of Section 922(g)(9), 18 U.S.C. § 921(a)(33)(A) defines the term
“misdemeanor crime of domestic violence” as an offense that is a misdemeanor
under federal, state, or tribal law and “has, as an element, the use or attempted use
of physical force, or the threatened use of a deadly weapon, committed by a current
or former spouse, parent, or guardian of the victim . . . .” Under this definition, it is
enough that the victim “was in fact the offender’s spouse (or other relation specified
in [the definition])”—regardless of whether the predicate misdemeanor requires as
an element a domestic relationship between the perpetrator and the victim. Hayes,
555 U.S. at 418.
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As we have noted, Johnson makes two Rehaif-based challenges. First, he
contends that the indictment failed to state an offense because it did not allege that
Johnson knew of his status; and second, Johnson argues that the stipulated facts at
his bench trial were insufficient to prove that he knew his status as a domesticviolence misdemeanant.
A. We review Johnson’s Rehaif claims for plain error
Before we get to the merits of Johnson’s arguments, we must identify the
applicable standard of review. Generally, we engage in de novo review of challenges
to an indictment or to the sufficiency of the evidence. United States v. Sperrazza,
804 F.3d 1113, 1119 (11th Cir. 2015); United States v. Taylor, 480 F.3d 1025, 1026
(11th Cir. 2007). But when a defendant fails to raise an argument in district court,
we review for plain error. United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.
2019); Sperrazza, 804 F.3d at 1119.
Here, the government assertsthat we should not review Johnson’s sufficiencyof-the-evidence argument at all because he invited error by stipulating that the facts
were sufficient to convict him. We disagree.
Johnson explained in district court that he proceeded to a stipulated bench trial
solely because he did not know that he was prohibited under Section 922(g) from
possessing a firearm, since misdemeanants in Florida are not deprived of their civil
rights. Because the elements of Section 922(g) were understood (and were applied
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under binding precedent, see United States v. Jackson, 120 F.3d 1226, 1229 (11th
Cir. 1997), abrogated by Rehaif, 139 S. Ct. 2191), at the time Johnson stipulated,
the facts to which he agreed were sufficient to prove the elements of Section 922(g).
Of course, since Johnson’s bench trial and sentencing, Rehaif has clarified the
elements of Section 922(g). Now, there can be no doubt that under Rehaif, the
elements the district court accounted for were incomplete. Johnson’s
acknowledgement that the evidence he stipulated to was sufficient to satisfy the
elements of the crime as laid out by then-binding precedent does not preclude him
from asserting that the stipulation is not sufficient in light of the Supreme Court’s
subsequent issuance of Rehaif.2
But while Johnson did not invite error in the district court, neither did he raise
the claims that he now makes on appeal. Johnson argues that he did raise them when
he moved to dismiss his indictment and when defense counsel discussed his lack of
knowledge at sentencing. We are not persuaded.
Johnson contended in his motion to dismiss the indictment that he had not
committed a misdemeanor crime of domestic violence as 18 U.S.C. § 921(a)(33)(a)
defines the term because he fell under an exception that Section 921(a)(33)(B)(ii)
recognizes. As we have mentioned, that section renders non-qualifying an
otherwise-qualifying predicate offense under Section 922(g)(9) if, as relevant to
2 Rehaif applies to Johnson’s case on direct appeal. See Reed, 941 F.3d at 1021.
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Johnson’s argument, the defendant’s civil rights have been restored since he was
convicted. Johnson did not argue that his civil rights had been restored. Rather,
because Johnson never lost his civil rights in connection with his conviction for a
Florida domestic-violence misdemeanor, he contended that he was covered by the
Section 921(a)(33)(B)(ii) exception.
That argument is different from Johnson’s Rehaif-based contention on appeal
that the indictment is insufficient because it fails to charge that Johnson knew he was
a domestic-violence misdemeanant. In fact, as the district court ruled and as we
explain later, see infra at II.C.2, a different Supreme Court case from Rehaif—
Logan, 552 U.S. 23—forecloses Johnson’s Section 921(a)(33)(B)(ii)-based
argument. To be clear, at no point in the district-court proceedings did Johnson ever
argue or even suggest that he was unaware that he had previously been convicted in
Florida of a misdemeanor for engaging in physical violence against his wife.
Similarly, at Johnson’s sentencing hearing, Johnson contended only that he
did not know that he was not allowed to possess a gun because no one ever told him
and because Florida never abrogated his civil rights. Johnson did not make the
separate argument that he did not know that he had been convicted of a misdemeanor
for using physical force against his wife.
Because Johnson did not raise his Rehaif arguments in the district court, we
review for plain error. Reed, 941 F.3d at 1020. To establish plain error, Johnson
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must show that (1) an error occurred, (2) the error was plain or obvious, and (3) it
affected his substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th
Cir. 2005). If Johnson can demonstrate the three plain-error components, we may
exercise our discretion to remedy the error, but only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
B. Rehaif error occurred in the district court, and that error was plain
1. Johnson’s indictment contained error, and that error is plain
We begin by reviewing the district court’s order on Johnson’s motion to
dismiss his indictment for plain error. An error is plain if it is “obvious” and “clear
under current law.” United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017)
(internal citation omitted).
Indictments must “contain[] the elements of the offense charged and fairly
inform[] a defendant of the charge against which he must defend, and, second,
enable[] him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). Here, we focus
on the first half of this equation, which requires an indictment to include the elements
of the crime charged. Id.
Under current law, as clarified by Rehaif, to establish a violation of Section
922(g)(9), the government must prove all of the following elements: (1) the
defendant knew he possessed (2) a “firearm” (as defined by the statute) that (3) had
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traveled in interstate commerce, and (4) he knew he had previously been convicted
of a misdemeanor crime of domestic violence. See Rehaif, 139 S. Ct. at 2195-96.
Johnson’s indictment fails to allege that he knew he was a domestic-violence
misdemeanant when he possessed the firearm in this case. So it is insufficient and
plainly erroneous under current law.
The government argues that this omission does not constitute plain error
because Johnson’s indictment tracked the language of Sections 922(g)(9) and
924(a)(2), including the knowledge element. And it is true that the indictment did
charge, in relevant part, that Johnson, “having been previously been convicted of a
misdemeanor crime of domestic violence, that is, Domestic Battery, in the County
Court, Duval County, Florida, on or about June 14, 2010, did knowingly possess, in
and affecting interstate commerce, a firearm that is, a Cobra, .380 caliber pistol.”
(emphasis added). But inconsistent with Rehaif, the indictment charged knowledge
with respect to only Johnson’s possession of the firearm, not as to Johnson’s status
as a domestic-violence misdemeanant.
While it is generally enough for an indictment to track statutory language, as
Johnson’s did, simply tracking statutory language does not suffice when the resulting
indictment fails to “fully, directly, and expressly, without any uncertainty or
ambiguity, set forth all the elements necessary to constitute the offen[s]e intended to
be punished.” Hamling, 418 U.S. at 117 (citation and internal quotation marks
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omitted). That was certainly the case here, since Section 922(g)’s phrasing did not
materially change after we decided Jackson, where we held that Section 922(g) did
not require the defendant to know his relevant status to be found guilty. 120 F.3d at
1229. Against that background, no indictment that merely tracked Section 922(g)’s
statutory language could unambiguously set forth all elements of the crime. And for
that reason, the indictment was plainly erroneous. See Reed, 941 F.3d at 1021
(finding plain error when the “indictment failed to allege that he knew [his status]”);
United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020) (same).
3
The government also tries to shoehorn this case into fitting within our
decisions in United States v. Gray, 260 F.3d 1267 (11th Cir. 2001), and United States
v. Woodruff, 296 F.3d 1041 (11th Cir. 2002). We determined that the indictments at
stake there were not defective even though they did not allege a mens rea element.
But Gray and Woodruff are materially different. Each dealt with an
indictment for Hobbs Act robbery that alleged that the defendant “unlawfully”
3 In one of their letters of supplemental authority, the government asserts that Moore
supports its position because we stated that “[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.” 954
F.3d at 1333. We are disappointed by this argument, which relies on an out-of-context quotation
to mischaracterize our opinion in Moore. The language that the government invokes from Moore
comes from our analysis explaining that a Rehaif defect in an indictment does not deprive the
district court of subject-matter jurisdiction, see id. at 1332-37; it has nothing to do with the point
for which the government relies on it. In fact, in that same case, we held that the Rehaif defect in
the indictment there, which similarly tracked the applicable statutory language, see id. at 1332-33,
was plain error because it failed to specifically charge that the defendant knew of his status, see
id. at 1337. There, though, the government conceded plain error.
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“t[ook]” “property” “by means of . . . force, violence, and fear of injury.” Gray, 260
F.3d at 1283; Woodruff, 296 F.3d at 1046. We upheld the sufficiency of those
indictments because “the requisite state of mind may be inferred from other
allegations in the indictment.” Gray, 260 F.3d at 1283; Woodruff, 296 F.3d at 1046.
Indeed, a person cannot take property by means of force, violence, and fear of injury
without knowing he is doing that.
In contrast, a person could hypothetically be convicted of a state-law battery
offense without realizing that it qualified as a misdemeanor crime of domestic
violence. So unlike with the Hobbs Act robbery offenses at issue in Gray and
Woodruff, the knowledge requirement pertaining to Johnson’s status could not be
inferred from the allegations in the indictment. And the rule in Gray and Woodruff
cannot save the indictment here.
2. The lack of evidence in the stipulated facts proving that Johnson
knew he was a domestic-violence misdemeanant constituted error,
and that error was plain
As for Johnson’s sufficiency-of-the-evidence claim, as the government
appropriately concedes, the error there was plain to the extent that the stipulated facts
did not demonstrate that Johnson had knowledge of his status as a domestic-violence
misdemeanant. As we have explained, that was clearly contrary to the law as we
understand it after Rehaif. See Rehaif, 139 S. Ct. at 2200; Reed, 941 F.3d at 1021.
C. The plain errors did not affect Johnson’s substantial rights
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Having concluded that plain error infected both the indictment and the
sufficiency of the evidence based on the stipulated facts, we consider whether either
of these errors affected Johnson’s substantial rights. To show that an error affected
his substantial rights, Johnson bears the burden of demonstrating a reasonable
probability that, without the error, the outcome of the proceeding would have been
different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); United
States v. Margarita Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018). A reasonable
probability is a “probability sufficient to undermine confidence in the outcome.”
Margarita Garcia, 906 F.3d at 1267 (internal quotation marks omitted). To
determine whether Johnson’s substantial rights have been affected, we review the
entire record. Reed, 941 F.3d at 1021.
Whether the plain errors here had any impact on Johnson’s substantial rights
hinges on the evidence of record showing whether Johnson knew his status—
domestic-violence misdemeanant—when he possessed the gun. If this evidence is
lacking, then Johnson can meet his burden to demonstrate a reasonable probability
that the outcome of his case would not have been the same in the absence of the
errors. But if not, then he cannot establish a reasonable probability that the outcome
of his case would have differed, and his Rehaif challenges fail.
1. Rehaif’s Knowledge-of-Status Requirement
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We begin by identifying what Rehaif’s knowledge-of-status requirement
demands. Rehaif was convicted of possessing a firearm as a non-citizen illegally in
the United States, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Rehaif, 139
S. Ct. at 2194. He argued that he did not know that his presence in the United States
was unlawful. Id. at 2195. The Supreme Court held that the language of Sections
922(g) and 924(a)(2) required proof that when Rehaif possessed the gun, he knew
that he was a non-citizen who was “illegally or unlawfully in the United States.” Id.
at 2198. To explain what it meant by this, the Court pointed to Liparota v. United
States, 471 U.S. 419 (1985), as illustrative of the type of knowledge required.
Rehaif, 139 S. Ct. at 2198.
In Liparota, the defendant challenged his conviction for “knowingly us[ing]
transfer[ring], acquir[ing], alter[ing], or possess[ing] [Food Stamps] in any manner
not authorized by [the statute] or the regulations.” Liparota, 471 U.S. at 420. The
Supreme Court determined that the government had to show not only that the
defendant had used, transferred, acquired, altered, or possessed Food Stamps, but
also that the defendant knew that he was acting in a way that the applicable statute
or regulations did not authorize. Id. at 423-25.
Significantly, though, the Court cautioned, the government did not need to
demonstrate that the defendant “had knowledge of specific regulations governing
food stamp acquisition or possession” that made his transfer or possession of food
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stamps unlawful. Id. at 434. In other words, Liparota did not “create[] a defense of
‘mistake of law.’” Id. at 425 n.9. To explain this concept further, the Court pointed
to the offense of knowing receipt of stolen goods. Id. It noted that not knowing that
receipt of stolen goods is a crime is no defense to that offense, but not knowing the
goods were stolen is. Id.
Given this understanding, it is not surprising that in Elonis v. United States,
575 U.S. 723, ___, 135 S. Ct. 2001, 2010 (2015), the Supreme Court characterized
Liparota as having construed the statute there “to require knowledge of the facts that
made the use of the food stamps unauthorized.”4
And the Court summarized its
cases as having “explained that a defendant generally must ‘know the facts that make
his conduct fit the definition of the offense,’ even if he does not know that those
facts give rise to a crime.” Id. at 2009 (quoting Staples v. United States, 511 U.S.
600, 608 n.3 (1994)).
So for example, in Staples, the Court considered what the government had to
prove to establish a violation of the law that made it illegal for anyone to possess a
machinegun that was not properly registered with the federal government. 511 U.S.
4 Rehaif described the same thing from Liparota a little differently. It said that the Court
“required the Government to prove that the defendant knew that his use of food stamps was
unlawful—even though that was a question of law.” 139 S. Ct. at 2198. We think Elonis’s
characterization better helps to describe the type of knowledge that is required and to avoid the
confusion that Rehaif suggests can occur in trying to differentiate between concepts of knowledge
of the law and knowledge of the effect of a so-called collateral matter (here, status) under the law.
See id.
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at 602. The Court held that the government was required to demonstrate, in relevant
part, that the defendant knew that the weapon he possessed had the characteristics
that caused it to fall within the statutory definition of a machinegun. Id. In other
words, the Court explained, the defendant “must know the facts that make his
conduct illegal . . . .” Id. at 619. But the defendant did not need to know the statutory
definition of a machinegun to be convicted. See id.
To determine what facts Johnson needed to know in light of Rehaif, we now
turn to the statutory definition of “misdemeanor crime of domestic violence” under
Section 921(a)(33). This section includes two subsections. As we will explain,
subsection (a)(33)(A) contains the elements of this offense, while subsection
(a)(33)(B) contains affirmative defenses.
a. Section 921(a)(33)(A) contains the elements that establish whether a
person knows he is a domestic-violence misdemeanant
Applying the principles from the teachings of Rehaif, Liparota, Elonis, and
Staples to Section 922(g)(9)’s status requirement, we conclude that, at the time he
possessed the firearm, the defendant must have known that he was convicted of a
misdemeanor, and he must have known the facts that made that crime qualify as a
misdemeanor crime of domestic violence. But Section 922(g)(9) introduces a slight
twist: one of the facts that makes a crime qualify as a misdemeanor crime of
domestic violence is that the crime must categorically require the use or threatened
use of physical force. See 18 U.S.C. § 921(a)(33)(A)(ii); see also Castleman, 572
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U.S. at 168. That may create the misimpression that Rehaif requires technical
knowledge of the law. It doesn’t. The Court did not conclude that Congress
expected a person to have performed a Descamps5 analysis on his misdemeanor
crime of conviction to determine whether any element of the statute under which he
was convicted categorically required the use or threatened use of “physical force.”
Rather, the knowledge-of-status requirement demands that the defendant have
known only that, to be convicted of his misdemeanor crime, he must have engaged
in or threatened to engage in conduct that constitutes “physical force” as the Supreme
Court has defined it for purposes of a misdemeanor crime of domestic violence under
Section 922(g)(9)—whether or not the defendant actually knew that the Supreme
Court had defined the term and what that definition was. In Castleman, the
Supreme Court established that conduct consisting of “even the slightest offensive
touching” satisfies Section 921(A)(33)(a)(ii)’s definition of “physical force.” 572
U.S. at 163 (internal citation omitted).
So as relevant here, to satisfy Rehaif’s knowledge-of-status requirement under
Section 922(g)(9), the evidence must establish that Johnson knew all the following:
(1) he had been convicted of a misdemeanor under state law, 18 U.S.C. §
921(a)(33)(A)(i); (2) to be convicted of that misdemeanor, he must have knowingly
5 Descamps v. United States, 570 U.S. 254 (2013).
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or recklessly6 engaged in at least “the slightest offensive touching”;7 and (3) the
victim was his current or former spouse at the time he committed the crime, 18 U.S.C
§ 921(a)(33)(A)(ii). When we review the record for these things, we keep in mind
that there need not be “extraordinary evidence that would conclusively demonstrate
[Johnson’s] state of mind. Rather, as in any other criminal prosecution requiring
mens rea, [state of mind may be proven] by reference to facts and circumstances
surrounding the case . . . .” Liparota, 471 U.S. at 434; see also Ratzlaf v. United
States, 510 U.S. 135, 149 n.19 (1994) (“A jury may, of course, find the requisite
knowledge on defendant’s part by drawing reasonable inferences from the evidence
. . . .”).
b. Section 921(a)(33)(B) does not set forth elements of what it means for a
person to know he is a domestic-violence misdemeanant
Before we leave this discussion to evaluate the evidence of record and
determine whether it sufficiently establishes that Johnson had the necessary
knowledge, we pause to explain why, in demonstrating a domestic-violence
misdemeanant’s knowledge of his status, the government does not bear the burden
6 See Voisine v. United States, 136 S. Ct. 2272, 2282 (2016).
7 The Dissent asserts that Rehaif requires the government to “prove the defendant was
aware that his prior conviction included the element of use or attempted use of force.” Dissent at
50. We don’t disagree with this principal. We just believe that to prove knowledge that the prior
conviction included an element of use or attempted use of physical force, the government must
show that the defendant knew that his prior offense necessarily required for conviction (i.e., an
element) that he engaged in at least “the slightest offensive touching”—the definition the Supreme
Court has identified for the meaning of “physical force” in Section 921(a)(33). See Castleman,
572 U.S. at 163.
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of proving the misdemeanant’s knowledge of the items specified in Section
921(a)(33)(B).
Up until now, we have discussed Section 921(a)(33)(A) primarily. But
Section 921(a)(33) also contains a subparagraph (B). That paragraph provides,
(B)(i) A person shall not be considered to have been convicted of
such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly
and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this
paragraph for which a person was entitled to a jury trial in the
jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to
have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such
an offense for purposes of this chapter if the conviction has been
expunged or set aside, or is an offense for which the person has been
pardoned or has had civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights under such an offense)
unless the pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess,
or receive firearms.
We now explain how Section 921(a)(33)(B) fits into the legislative scheme.
We see two possibilities: (1) Section 921(a)(33)(B) sets forth elements of the
definition of “misdemeanor crime of domestic violence,” or (2) it states what are
effectively affirmative defenses. The difference between an element and an
affirmative defense is important: while the government must prove knowledge,
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22
“[w]here affirmative defenses are created through statutory exceptions, the ultimate
burden of persuasion remains with the prosecution, but the defendant has the burden
of going forward with sufficient evidence to raise the exception as an issue.” United
States v. Larouche, 723 F.2d 1541, 1543 (11th Cir. 1984). So while the evidence
must be enough to establish all the elements of knowledge, it need not prove that
affirmative defenses did not apply, unless the defendant first introduced evidence
that one did.
Neither Johnson nor the government makes any specific argument that
Section 921(a)(33)(B) sets forth elements for proving a person knows he is a
domestic-violence misdemeanant.
8
And we agree with their apparent implicit
conclusion that Section 921(a)(33)(B) represents what are effectively affirmative
defenses, since as we explain below, both our test for assessing whether something
constitutes an element and our precedent require that answer.
8 The Dissent suggests that the parties do not raise this issue and indicates its preference
that we not decide this issue. See Dissent at 42 n.1. We don’t think that is a tenable option under
the circumstances here. While no party specifically argues that the Section 921(a)(33)(B)
provisions do or do not constitute elements of a “misdemeanor crime of domestic violence” under
Section 921(a)(33), Johnson most assuredly does contend that the Rehaif errors here constituted
plain errors that affected his substantial rights because, Johnson claims, the government did not
establish that he knew he was a domestic-violence misdemeanant. To ascertain whether that is the
case, we must first identify what the evidence of record was required to show to demonstrate
whether Johnson knew he was a domestic-violence misdemeanant. That requires us to determine
what parts of Section 921(a)(33) specify elements of the definition of “misdemeanor crime of
domestic violence.” Assuming without deciding that Section 921(a)(33)(B) sets forth affirmative
defenses is not consonant with evaluating whether the plain errors here affected Johnson’s
substantial rights, since if the Section 921(a)(33)(B) components were elements, the government
would be required to prove them, and we would need to study the record to see whether it contained
sufficient evidence to establish each of these components.
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23
To evaluate whether a statutory exception serves as an element of a crime, we
consider three factors. United States v. Kloess, 251 F.3d 941, 944 (11th Cir. 2001).
We start with the statutory language and structure to see whether they yield any clues
about the exception’s role. Id. Second, we review the statute’s legislative history to
learn whether Congress intended for the exception to serve as an element of the
crime. Id. And third, we assess whether the government is in a good position to find
evidence that could prove the exception’s applicability.
9
Id.
Beginning with the statutory language and structure, we first observe that
Section 921(a)(33) is divided into two parts: (A) and (B). Subparagraph (A) begins,
“Except as provided in subparagraph (C),[10] the term ‘misdemeanor crime of
domestic violence’ means an offense that— . . . .” Subparagraphs (B)(i) and (B)(ii)
each start, “A person shall not be considered to have been convicted of such an
offense for purposes of this chapter,” “unless,” in the case of subparagraph (B)(i),
and “if,” in the case of subparagraph (B)(ii), certain conditions exist. Perhaps these
9 The Dissent takes issue with this third factor—whether the government is in a good
position to find evidence that could prove the exception’s applicability. See Dissent at 42 n.1. But
our precedent has adopted this factor as part of the test for whether a provision constitutes an
element or an affirmative defense, and we are bound by our prior-precedent rule to follow that
precedent. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Plus, as
we have noted, the prosecution still has the ultimate burden of persuasion on affirmative defenses.
Larouche, 723 F.2d at 1543.
10 Section 921(a)(33) does not contain a subparagraph (C). But as we discuss above,
subparagraph (B) does set forth statutory exceptions to when a person may be considered to have
been convicted of a “misdemeanor crime of domestic violence.” We therefore construe the
reference to subparagraph (C) to be a typographical error intended to refer to subparagraph (B).
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words could indicate congressional intent to make the subparagraph (B) factors
elements of the definition of “misdemeanor crime of domestic violence.” But based
on the rest of our analysis, we don’t think so.
According to its statutory language, the purpose of subparagraph (A) is to state
what the term “misdemeanor crime of domestic violence” means. See 18 U.S.C. §
921(a)(33)(A) (“the term ‘misdemeanor crime of domestic violence’ means an
offense that . . .”). Congress did not place the provisions of subparagraphs (A) and
(B) in a single section—though it could have. We think that separating the
subparagraph (A) provisions from those in subparagraph (B) suggests that Congress
envisioned different roles for the two subparagraphs. Based on the structure
Congress chose, we believe Congress viewed subparagraph (A) as setting forth the
elements of a “misdemeanor crime of domestic violence” and subparagraph (B) as
articulating what are effectively affirmative defenses.
As for the legislative history, we found statements from a single Senator
stating his view that subparagraph (B) “has no real substantive effect” and “really
does not change anything,” 142 Cong. Rec. 11842 (Statement of Sen. Lautenberg).
And we found a Congressional Research Service report published a few months after
the bill passed, characterizing Section 921(a)(33)(B)(i) as “statutory defenses to the
validity of the predicate conviction.” Cong. Rsch. Serv., Gun Ban for Persons
Convicted of Misdemeanor Crime of Domestic Violence: Ex Post Facto Clause and
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Other Constitutional Issues (Dec. 30, 1996). Though both suggest that the
subparagraph (B) components are intended to be defenses and not elements, we
haven’t found anything that purports to be indicative of the sense of the Congress.
So we do not consider legislative history in our analysis.
When we look to whether the government is in a good position to prove the
exculpatory exceptions set forth in subparagraph (B), we conclude that relative to
the defendant, it is not. In explaining why, we start with subparagraph (B)(ii), which
excepts from the definition of “misdemeanor crime of domestic violence” any
otherwise qualifying conviction that has been “expunged or set aside, or is an offense
for which the person has been pardoned or has had civil rights restored.” 18 U.S.C.
§ 921(a)(33)(B)(ii).
We have previously analyzed a similar exception to determine whether it was
an element or an affirmative defense. In United States v. Jackson, 57 F.3d 1012
(11th Cir. 1995), we looked at 18 U.S.C. § 921(a)(20)’s definition of “crime
punishable by imprisonment for a term exceeding one year.” At that time, the statute
said,
What constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings
were held. Any conviction which has been expunged, or set aside or
for which a person has been pardoned or has had civil rights restored
shall not be considered a conviction for purposes of this chapter, unless
such pardon, expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or receive
firearms.
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Jackson, 57 F.3d at 1015 (quoting 18 U.S.C. § 921(a)(20) (West Supp. 1994)
(emphasis added by Jackson Court)).
We concluded that the italicized part of the statutory defenses was not an
element. See id. at 1016-17. In reaching this conclusion, we quoted the Tenth
Circuit for the proposition that the defendant is in a better position than the
government to show that his conviction has been expunged, his civil rights have been
restored, or he has been pardoned:
As a practical matter, requiring the government to negate the
possibility, in every § 922(g)(1) case, that each defendant’s prior
convictions had been expunged or set aside, that a pardon had been
granted, or that civil rights had been restored, would impose an onerous
burden. A defendant ordinarily will be much better able to raise the
issue of whether his prior convictions have been expunged or set aside,
whether a pardon has been granted, or whether civil rights have been
restored.
Id. at 1016 (quoting United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994)).
We, of course, are bound by Jackson. See United States v. Steele, 147 F.3d 1316,
1318 (11th Cir. 1998) (en banc). So we conclude that the defendant is better situated
than the government to demonstrate any of the defenses listed under subparagraph
(B)(ii).
That brings us back to Section 921(a)(33)(B)(i). As a reminder, that provision
excepts from the definition of “misdemeanor crime of domestic violence”
convictions where the defendant was not represented by (or did not knowingly and
intelligently waive the right to be represented by) counsel and those where the
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defendant was entitled to be tried by a jury but was not and did not knowingly and
intelligently waive the right to try the case to a jury.
Although we focused on a restoration-of-civil-rights exception in Jackson, we
also relied on another of our precedents, United States v. Ruo, 943 F.2d 1274, 1276
(11th Cir. 1991), which helps explain why it would also be harder for the government
to shoulder the burden of demonstrating the exceptions in subparagraph (B)(i) here.
We cited Ruo for the proposition that as a practical matter, it makes sense for the
defendant to bear the weight of demonstrating defects in prior convictions. Id. We
explained,
[U]nder § 924(e), the burden is properly placed on the defendant raising
the challenge to show the constitutional invalidity of the prior
convictions. Any given conviction might suffer any of a myriad of
constitutional defects. It would approach the absurd to undertake to
prove guilt all over again in every predicate conviction . . . . Instead,
the government’s burden is properly met when it introduces evidence
that there are at least three prior violent felony convictions. The
defendant must then point out any defects in a particular prior
conviction.
Jackson, 57 F.3d at 1016 (quoting Ruo, 943 F.2d at 1276). Though Section 924(e)
did not list exceptions built into it, the point is that we have previously concluded
that the defendant is in the better position to know of the facts subparagraph (B)(i)
says remove a conviction from the definition of “misdemeanor crime of domestic
violence.”
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Plus, returning for a moment to our first consideration—the language and
structure of the statute—that subsections (i) and (ii) both appear under subparagraph
(B) suggests that Congress viewed the two provisions to have a similar function in
the overall structure of Section 922(a)(33). So since subsection (B)(ii) is an
affirmative defense, it is more likely that subsection (B)(i) is as well.
In short, we conclude that the government does not have an affirmative
obligation to prove or disprove the defendant’s knowledge of the components listed
in subparagraph (B) to demonstrate that the defendant knew he was a domesticviolence misdemeanant, unless the defendant first brings forward evidence
suggesting that his prior conviction is excepted from the definition of “misdemeanor
crime of domestic violence.”
2. The record establishes that, for purposes of Rehaif’s knowledge
requirement, Johnson knew he was a domestic-violence misdemeanant
Now that we’ve established what knowledge a domestic-violence
misdemeanant must possess under Rehaif, we consider whether the record here
demonstrates that Johnson had that knowledge at the time he was found with the
firearm in this case. To make this determination, we look here to Johnson’s
stipulation at trial and the undisputed facts in his PSR, which the district court
adopted as factual findings. As we have explained, when a defendant does not object
to a district court’s factual findings, he is bound by them and may not argue that they
contained error. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).
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Review of these documents reveals that the record includes sufficient evidence to
establish that Johnson had the requisite knowledge of his status as a domesticviolence misdemeanant when he was found with the gun in his possession.
First, Johnson knew at the time he possessed the gun that he had been
convicted of the misdemeanor crime of battery under Florida Statute § 784.03(1).
We know this because he stipulated at the bench trial that he had pled guilty to the
charge of “domestic battery” under the laws of the State of Florida,
11 and Johnson’s
Florida conviction identified the statute of conviction as Florida Statute §
784.03(1)(a), Florida’s battery statute. Johnson’s PSR states that he was originally
charged with domestic battery by strangulation and assault, which Florida Statute
§ 784.041 renders a felony. That he eventually pled to the misdemeanor instead also
supports the notion that he knew he was convicted of a misdemeanor under Florida
law. Plus, Johnson ultimately spent six months in jail as a result of that conviction—
11 The Dissent seems to suggest that Johnson could not have known these things at the time
he possessed the firearm because the evidence that proves he did came from his stipulation at the
bench trial, which occurred after he possessed the gun. See Dissent at 51 (e.g., “[N]either [the
stipulation nor the PSR] show that Mr. Johnson ‘knew . . . when he possessed’ the firearm that he
was a domestic-violence misdemeanant.”) (quoting Rehaif, 139 S. Ct. at 2194 (emphasis added)).
We respectfully disagree. In this case, the contents of the stipulation and the PSR identify what
Johnson knew at the time that he pled guilty to the underlying misdemeanor crime of domestic
violence. For example, he knew at the time he pled guilty to the misdemeanor that he was pleading
guilty to a misdemeanor because, the stipulation shows, he pled down from a felony, and he
eventually spent six months in jail for his conviction. To spend time in jail for this offense, it must
have been a misdemeanor or a felony. And he stated he knew it was not a felony. Indeed, that
was his defense: that he was not told that he could not possess a firearm because he had not been
convicted of a felony, and misdemeanants in Florida do not lose their civil rights. So while these
facts are documented in the stipulation and PSR, which were created after Johnson possessed the
gun, they are sufficient to infer he knew these facts before he possessed the gun.
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another indication that he must have been aware of it. Finally, during this case,
Johnson admitted he knew he was a misdemeanant when he explained that he did
not know he was prohibited from possessing a firearm because he was only a
misdemeanant, and misdemeanants in Florida do not lose their civil rights.
Second, Johnson knew that the misdemeanor to which he pled guilty—
battery—required that he had, at a minimum, recklessly engaged in at least “the
slightest offensive touching.” Castleman, 572 U.S. at 163 (internal citations
omitted). The offense of battery under Florida law requires that the defendant have
“[a]ctually and intentionally touche[d] or str[uck] another person against the will of
the other,” Fla. Stat. § 784.03(1)(a)(1.). A person cannot intentionally touch
someone against her will without, at a minimum, recklessly committing at least “the
slightest offensive touching.”
And Johnson stipulated at his bench trial here that with the assistance of
counsel, he “knowingly and intelligently waived his right to a jury trial and pled
guilty” to the offense of battery. The Supreme Court has explained that a knowing
and intelligent plea requires that the defendant have been informed of the crime’s
elements. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Since Johnson stipulated
that he knowingly and intelligently pled guilty to battery, the record establishes that,
at the time he pled guilty to battery, he knew he was pleading guilty to that offense,
and he knew that one of the elements of that offense required him to have “[a]ctually
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and intentionally touche[d] or str[uck] another person against the will of the other.”
Fla. Stat. § 784.03(1)(a)(1.). That means that the record shows that Johnson knew
an element of his offense of conviction required that he had necessarily engaged in
at least “the slightest offensive touching.”
And third, as we have just noted and as Johnson stipulated to at his bench trial
here, the victim of Johnson’s prior Florida misdemeanor battery was his wife.
Obviously, Johnson knew she was his wife.
So the record establishes that Johnson knew at the time he was found with the
firearm in this case that he had previously been convicted of a misdemeanor crime
of domestic violence. And for that reason, no reasonable probability exists that the
outcome would be different on remand.12 We therefore conclude that the plain errors
12 The Dissent argues that our conclusion creates a split with the Seventh Circuit’s decision
in United States v. Triggs, 963 F.3d 710 (7th Cir. 2020), because “‘complexity of the statutory
definition’ of a misdemeanor crime of domestic violence gives defendants ‘at least a plausible
argument’ that they were unaware they were convicted of such an offense.” Dissent at 57 n.7
(quoting Triggs, 963 F.3d at 716). We think not. True, the Seventh Circuit noted “the complexity
of the statutory definition,” but that alone was not the reason why that court remanded the case.
Rather, unlike here, in Triggs, the defendant pled guilty to his Section 922(g)(9) offense, and the
proceedings that led to the defendant’s underlying domestic-violence misdemeanor conviction
were “messy.” Id. at 716. So the Seventh Circuit was able to conclude that Triggs had a “colorable
argument that he was unaware that he was convicted of a misdemeanor crime of domestic
violence,” without ever analyzing what it means for a domestic-violence misdemeanant to know
he is a domestic-violence misdemeanant. Id. The record here does not give us that option. Unlike
Triggs, Johnson was convicted after a bench trial, not a guilty plea, and the proceedings that led to
his conviction for a misdemeanor crime of domestic violence were straight-forward, not “messy.”
As a result, we must proceed through the analysis in order, identifying what it means for a
domestic-violence misdemeanant to know he is a domestic-violence misdemeanant and then
assessing the record to see whether it contains sufficient evidence to establish the defendant’s
requisite knowledge. By doing so, we do not create a split with Triggs because Triggs’s decision
to remand rested on “the complexity of the statutory definition” in combination with the “messy”
state-court-conviction record.
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in the indictment and in the sufficiency of the evidence stipulated to at the bench
trial did not affect Johnson’s substantial rights.13
We are not persuaded by Johnson’s contentions to the contrary. Johnson’s
arguments rest mainly on the fact that he did not “know he was prohibited from
federal possession of a firearm.” He points to the fact that his Florida conviction
never resulted in the loss of his civil rights, including his right to possess a firearm
under Florida law. He also relies on the district court’s statement at sentencing that
“this is an unusual offense” because Johnson was charged with something he could
“genuinely say [he] didn’t know was unlawful.”
While we can understand Johnson’s frustration with the situation, these facts
pertain to whether Johnson knew he personally was prohibited from possessing a
firearm under federal law, not whether he knew he committed a misdemeanor crime
of domestic violence. But under Rehaif’s knowledge-of-status requirement, that a
defendant does not recognize that he personally is prohibited from possessing a
13 The Dissent suggests that the outcome here would have been different in the absence of
the Rehaif errors because “if Mr. Johnson had known that the government needed to prove he knew
his status, it would have made no sense for him to stipulate to that point, instead of putting the
government to its proof.” Dissent at 53. We respectfully disagree. The sole reason why Johnson
went to trial here was because he never lost his civil rights as a result of his conviction for a
misdemeanor crime of domestic violence, and he thought that was a defense under Section
921(a)(33)(B)(ii). Johnson never suggested during his trial here that he did not know that he had
been convicted of a misdemeanor crime that had as an element the use of at least “the slightest
offensive touching” against his wife. And as we have explained, the record here establishes that
Johnson, in fact, knew at the time he possessed the firearm here that he had been convicted of a
misdemeanor crime that had as an element the use of at least “the slightest offensive touching”
against his wife.
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firearm under federal law is no defense if he knows he has a particular status and
that status happens to be one prohibited by § 922(g) from possessing a firearm.
United States v. Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). Rather, that is a
mistake of law, which is not a defense. See Liparota, 471 U.S. at 425 n.9. As we
have mentioned, “a defendant generally must ‘know the facts that make his conduct
fit the definition of the offense,’ even if he does not know that those facts give rise
to a crime.” Elonis, 575 U.S. at 2009 (quoting Staples, 511 U.S. at 608 n.3).
And to the extent that Johnson continues to assert that Section
921(a)(33)(B)(ii)’s exception to the definition of a domestic-violence misdemeanant
for anyone whose civil rights have been restored applies to him because Florida
never abrogated his rights in the first place, that argument is foreclosed under Logan,
552 U.S. 23. In Logan, the Supreme Court considered a materially indistinguishable
exception that applies to the Armed Career Criminal Act. Id. at 26. The provision
at issue there—18 U.S.C. § 921(a)(20)—authorized the disregarding of a prior
conviction if the conviction “has been expunged, or set aside,” or the offender “has
been pardoned or has had civil rights restored.” Id. Like Johnson, Logan had never
had his civil rights abrogated in the first place, despite his otherwise-qualifying
convictions under the Armed Career Criminal Act. Id. He contended that Section
921(a)(20)’s exception for those who had had their civil rights restored after an
otherwise-qualifying conviction reached him. Id.
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The Supreme Court disagreed. See id. It reasoned that the plain language of
the provision, which used the word “restored,” did not support Logan’s construction.
Id. at 31-32.
For further support, the Court pointed to Section 921(a)(33)(B)(ii), the very
exception Johnson invokes here. The Court noted that it provides, in relevant part,
that “[a] person shall not be considered to have been convicted of [a misdemeanor
crime of domestic violence] [for purposes of Section 922(g)(9)] if the conviction . . .
is an offense for which the person . . . has had civil rights restored (if the law of the
applicable jurisdiction provides for the loss of civil rights under such an offense)
. . . .” Logan, 552 U.S. at 36 (quoting 18 U.S.C. § 921(a)(33)(B)(ii)) (emphasis
added by Logan Court). As the Court explained, “the emphasized parenthetical
qualification shows that the words ‘civil rights restored’ do not cover a person whose
civil rights were never taken away.”14 Id. So Johnson’s argument that he does not
satisfy the definition of domestic-violence misdemeanant because Florida never
abrogated his civil rights necessarily fails. And since Section 921(a)(33)(B)(ii) does
not make Section 921(a)(33)’s definition of “misdemeanor crime of domestic
14 Senator Lautenberg’s statement on what became codified at 18 U.S.C. § 921(a)(33)
reflects, as the Supreme Court in Logan believed, that Congress was aware that most people
convicted of a misdemeanor do not lose their civil rights. See 142 Cong. Rec. S11872, S11877-
78 (1996) (Statement of Sen. Lautenberg) (“Loss of [civil] rights generally does not flow from a
misdemeanor conviction, and so this language is probably irrelevant to most, if not all, of those
offenders covered because of the new ban [on firearm possession by domestic-violence
misdemeanants].”).
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35
violence” inapplicable to someone whose civil rights were never breached in the first
place, there was nothing for the government to refute with respect to the valid
affirmative defenses encompassed within Section 921(a)(33)(B)(ii).15
III.
Next, we turn to Johnson’s contentions that Section 922(g)(9) is
unconstitutional because (1) it violates Johnson’s equal-protection rights under the
Due Process Clause of the Fifth Amendment; and (2) it violates the Commerce
Clause. Although we generally review de novo the constitutionality of a statute, we
review such claims, when they are not raised in the district court, for plain error.
United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). As with the Rehaif
claims, Johnson did not make his constitutional arguments in the district court. So
we review them for plain error.
A.
15 The Dissent suggests that the outcome of Johnson’s proceeding would have differed in
the absence of the Rehaif errors since the government would have been required to prove that
Section 921(a)(33)(B)(ii)’s affirmative defenses did not apply to Johnson because Johnson invoked
that exception to argue that he did not qualify as a domestic-violence misdemeanant. See Dissent
at 55. But Johnson relied on Section 921(a)(33)(B)(ii) only because his civil rights were never
abrogated. Section 921(a)(33)(B)(ii), though, provides no exception to the definition of domesticviolence misdemeanant for an otherwise-qualifying individual whose civil rights were never taken.
A defendant cannot make an affirmative defense relevant by raising a ground that is not even
arguably covered by that affirmative defense. Simply put, Johnson never properly raised an
affirmative defense under Section 921(a)(33)(B)(ii) because he did not allege any of the conditions
set forth by that section that would exempt him from having committed a “misdemeanor crime of
domestic violence,” so the government had no obligation to prove that that exception does not
apply.
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36
The terms of the Fourteenth Amendment guarantee equal protection of state
law. U.S. Const. amend. XIV. When it comes to the concept of equal protection
under federal law, the Fifth Amendment carries the load. Hampton v. Mow Sun
Wong, 426 U.S. 88, 100 (1976). Unlike the Fourteenth Amendment, the Fifth
Amendment contains no express equal-protection clause. See U.S. amend. V. But
the Fifth Amendment’s guarantee of due process under the law embodies within it
the concept of equal justice under the law. Hampton, 426 U.S. at 100.
Johnson contends that Logan’s reading of Section 921(a)(33)(B)(ii), as
applied to him, causes Section 922(g) to violate equal protection. As we have
explained, under Logan, domestic-violence misdemeanants whose civil rights were
never abrogated by the state where they were convicted are not excepted from
Section 921(a)(33)’s definition of who has committed a “misdemeanor crime of
domestic violence” for purposes of Section 922(g). 522 U.S. at 26. Yet those whose
convictions—whether for misdemeanor crimes of domestic violence or for
felonies—resulted in the forfeiture of their civil rights but who later had those civil
rights restored do not violate Section 922(g) by possessing a firearm. See 18 U.S.C.
§ 921(a)(33)(B)(ii), (a)(20). Johnson argues that domestic-violence misdemeanants
who never lost their civil rights in the first place are therefore unconstitutionally
treated less favorably than those—both domestic-violence misdemeanants and
felons—who have had their civil rights restored.
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No Supreme Court or Eleventh Circuit case holds that Section 922(g)’s
application to domestic-violence misdemeanants who never lost their civil rights but
not to felons and to domestic-violence misdemeanants whose rights were abrogated
but then restored violates equal protection. In this Circuit, when no Supreme Court
or Eleventh Circuit precedent directly resolves a legal issue, no plain error on that
issue can exist. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003). Lejarde-Rada governs the situation here. So here, Johnson cannot establish
plain error.
B.
Johnson also argues that Section 922(g)(9) violates the Commerce Clause
both facially and as applied. He contends that the Commerce Clause does not allow
Congress to criminalize the intrastate possession of a firearm merely because the
firearm once traveled in interstate commerce.
Once again, Johnson did not raise his argument in the district court. So once
again, we apply plain-error review. This time, though, as Johnson recognizes,
binding precedent addresses this issue. And that binding precedent rejects Johnson’s
position. In United States v. McAllister, we held that Section 922(g), which makes
it illegal for a qualifying person to “possess in or affecting commerce, any firearm
or ammunition,” is a constitutional exercise of Congress’s power under the
Commerce Clause. 77 F.3d 387, 390 (11th Cir. 1996) (citing 18 U.S.C. § 922(g))
USCA11 Case: 19-10915 Date Filed: 12/02/2020 Page: 37 of 58
38
(emphasis added by McCallister court). We explained that Section 922(g) regulates
firearms “that have a connection to interstate commerce; the statute explicitly
requires such a connection” with its “in or affecting” language. Id.
Since we issued McAllister, others have also challenged Section 922(g) as an
unconstitutional reach beyond what the Commerce Clause authorizes. And we have
held there, as we hold here, that Circuit precedent forecloses that argument. See
United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); Wright, 607 F.3d at
715. Under our prior-precedent rule, we must follow the precedent of earlier panels
unless and until the prior precedent is overruled or undermined to the point of
abrogation by the Supreme Court or this Court sitting en banc. Steele, 147 F.3d at
1318. As neither exception applies here, we reject Johnson’s Commerce Clause
argument.
Outcome: For the reasons we have explained, we affirm Johnson’s conviction.
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: