United States v. Dowthard, No. 18-2088

• Decision Date: 23 January 2020
• Docket Number: No. 18-2088
• Citation: 948 F.3d 814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert E. DOWTHARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

948 F.3d 814

UNITED STATES of America, Plaintiff-Appellee,

v.Albert E. DOWTHARD, Defendant-Appellant.

No. 18-2088

United States Court of Appeals, Seventh Circuit.

Argued December 17, 2019

Decided January 23, 2020

Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Paul E. Gaziano, Attorney, Federal Defender Program, Rockford, IL, John F. Murphy, Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before Ripple, Sykes, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Albert Dowthard pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g). Because of his prior state convictions, he was sentenced under the Armed Career Criminal Act (ACCA) to 186 months in prison. See id. § 924(e). Although he raised no such argument in the district court, he now contends that Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), invalidates his plea because he was not informed that knowledge of his status as a previously convicted felon was an element of his § 922(g) charge. Alternatively, he disputes his classification as an Armed Career Criminal, arguing that two of the four prior offenses used to sentence him do not qualify as violent felonies.

Dowthard has the burden of showing that a misunderstanding of the elements of his offense affected his substantial rights, yet he does not even assert that he would not have pleaded guilty if he had properly understood the elements. Thus, he has failed to carry that burden. And his prior Illinois conviction for attempted aggravated domestic battery has as an element the attempted use of physical force and therefore counts as a "violent felony" under the ACCA. With that conviction and the two he does not challenge, he has the three necessary predicates for an enhanced sentenced under § 924(e). Accordingly, we affirm both his conviction and his sentence.

I

One night in November 2018, Dowthard fired a revolver from an open car window. No one was hit. But police responded to the shots, searched the car, and recovered the gun—which Dowthard’s prior felony convictions barred him from having. The United States charged him with possessing a firearm after "previously having been convicted of a crime punishable by imprisonment for a term exceeding one year" in violation of 18 U.S.C. § 922(g)(1) and, in his case, § 924(e). Although the indictment accused Dowthard of being a felon who knowingly possessed a gun, it said nothing about his knowledge that any of his prior crimes were felonies.

Dowthard eventually pleaded guilty under a written agreement admitting that he "possessed the .38 revolver" and "had previously been convicted of a crime punishable by imprisonment for a term exceeding one year." He stipulated that he had several prior state convictions that the government believed qualified him for a 15-year minimum sentence under § 924(e). He reserved the right to object on that score and appeal "the validity of this plea and the sentence imposed."

Before accepting Dowthard’s plea, the district court informed him that a conviction would require proof (or an admission) that he had first been convicted of a crime punishable by more than one year of imprisonment and then had knowingly possessed a firearm, and also that the firearm had traveled in interstate commerce. After stating that he understood the charge and plea agreement, Dowthard admitted the allegations. The court accepted his plea.

Dowthard’s plea agreement and presentence investigation report both took special note of four of his prior felony convictions. The first, and most important for our purposes, was a 2004 conviction for possession with intent to deliver a controlled substance, 720 ILCS 570/407(b)(2), for which Dowthard received a 6-year prison term. He served just over two years in prison on that sentence before being released on parole. The other felony convictions central to this appeal were for (1) aggravated battery involving bodily harm, 720 ILCS 5/15-4(b)(6) ; (2) attempted aggravated domestic battery involving strangulation under 720 ILCS 5/12-3.3(a-5) and 720 ILCS 5/8-4(a) ; and (3) residential burglary, 720 ILCS 5/19-3. He received a 180-day sentence for each of these convictions, though Illinois law classifies these offenses as "Class 1" or "Class 2" felonies, punishable by terms of imprisonment exceeding one year. See 730 ILCS 5/5-4.5-30, 5/5-4.5-35. The probation office concluded that the 2004 controlled-substance conviction qualified as a "serious drug offense" under 18 U.S.C. § 924(e)(2)(A), that the residential burglary and the aggravated domestic abuse assault convictions were both violent felonies under § 924(e)(2)(B), and that—because he had at least three qualifying predicate offenses—Dowthard was eligible for an enhanced sentence under the ACCA. It did not initially flag the aggravated battery conviction as a qualifying predicate.

Dowthard disputed the classification of the two violent felonies identified by probation. He argued that an Illinois attempt to commit a force-based crime need not involve "the use, attempted use, or threatened use of physical force," 18 U.S.C. § 924(e)(2)(B)(i) ; his attempt conviction, he contended, required only a "substantial step" toward completing the crime, and that step could be divorced from the contemplated application of physical force. Moreover, he argued that his intended offense, aggravated domestic battery, did not have force as an element. The government countered that Dowthard’s conviction was for attempting aggravated domestic battery under a subsection requiring strangulation of the victim—in a word, force—and that his reading of the Illinois attempt statute was foreclosed by Hill v. United States , 877 F.3d 717 (7th Cir. 2017).

As for Illinois’s residential burglary statute, Dowthard argued that it defined "burglary" more broadly than federal law because it applied to a "dwelling place," which might include locations other than buildings or structures. The government responded that precedent also foreclosed this theory, namely, Smith v. United States , 877 F.3d 720 (7th Cir. 2017).

At the sentencing hearing, Dowthard acknowledged that he had read and understood the PSR and stated that he had no objections to any of the facts in it. The district court ruled that all four of the putative predicates—Dowthard’s drug crime, aggravated battery involving bodily harm, attempted aggravated domestic battery by strangulation, and residential burglary—counted under § 924(e). After granting Dowthard a 3-level decrease in offense level for timely accepting responsibility, see U.S.S.G. § 3E1.1, the court sentenced him to 186 months’ imprisonment—within his Guidelines range and well above the 10-year ceiling that § 924(a)(2) would furnish if the ACCA had not applied.

Dowthard filed a notice of appeal. Before briefing, the Supreme Court issued Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which changed the appellate courts’ understanding of the elements of an offense under §§ 922(g) and 924(a). Rehaif holds that, to secure a conviction under these sections, the government must prove that a defendant knew he belonged to a category of persons barred from possessing a firearm (at least for felons and those illegally in the United States). Id . at 2200. Dowthard now challenges both his conviction and his sentence.

II

A. Conviction

Dowthard asks us to vacate his conviction because, under Rehaif , he could not properly be convicted without the government establishing that he knew, at the time he possessed the gun, that he had "been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). He first contends that his indictment is invalid for omitting this scienter requirement, but he has waived any argument he could make on that front. The omission of an element from an indictment is not a jurisdictional defect, United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), and his guilty plea waived his right to assert that the indictment failed to state an offense. United States v. Wheeler , 857 F.3d 742, 744 (7th Cir. 2017). Dowthard has not waived his opportunity to seek to withdraw his plea, though. Hurlow v. United States , 726 F.3d 958, 966 (7th Cir. 2013) (citing Tollett v. Henderson , 411 U.S. 258, 266–67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ). Indeed, the plea agreement expressly reserved the right to appeal the "validity" of his plea. Still, because he did not move to withdraw his plea in the district court, he has forfeited this argument, so he rightly concedes that our review of his request is for plain error only. See United States v. Novak , 841 F.3d 721, 727 (7th Cir. 2016).

On plain-error review, Dowthard must show (1) an error (2) that is plain today, (3) that affected his substantial rights and (4) seriously affected the fairness, integrity, or public reputation of the proceedings. United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ; United States v. Williams , No. 19-1358, 946 F.3d 968, 971–72, 2020 WL 111264, at *2 (7th Cir. Jan. 10, 2020). The parties agree that in light of Rehaif the first two prongs are met. As for the third prong, we recently concluded that the burden of persuasion rests on the defendant seeking to withdraw his plea based on Rehaif to show that there is "a reasonable probability that he would not have pleaded guilty if he knew of Rehaif ." Williams , 946 F.3d at 973, 2020 WL 111264, at *3.¹

Dowthard, however, has never asserted—in his briefs or during oral argument—that he would have insisted on going to trial (or held out for a better deal) if he had been aware that knowledge of his status as a felon was an element of his charge. He suggests only that Rehaif would have caused him to consider more closely "what effect ... prior precedent regarding stipulations to...