United States v. Johnson, No. 19-10915

• Citation: 981 F.3d 1171
• Decision Date: 02 December 2020
• Docket Number: No. 19-10915
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deangelo Lenard JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

981 F.3d 1171

UNITED STATES of America, Plaintiff-Appellee,

v.Deangelo Lenard JOHNSON, Defendant-Appellant.

No. 19-10915

United States Court of Appeals, Eleventh Circuit.

December 2, 2020

Jennifer Waugh Corinis, Peter J. Sholl, U.S. Attorney Service - Middle District of Florida, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee

Adeel Bashir, Aliza Hochman Bloom, Federal Public Defender's Office, Tampa, FL, Maurice C. Grant, II, Federal Public Defender's Office, Jacksonville, FL, Rosemary Cakmis, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant

Before MARTIN, ROSENBAUM, and TALLMAN,^* Circuit Judges.

ROSENBAUM, Circuit Judge:

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 At the end of the day, due to outdated laws or thinking, perhaps after a plea bargain, they are, at most, convicted of a misdemeanor."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, 129 S.Ct. 1079, 172 L.Ed.2d 816 (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 , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019), the 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, 134 S.Ct. 1405, 188 L.Ed.2d 426 (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.

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 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, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007). In Logan , the Supreme Court held that a near-identical 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, 128 S.Ct. 475.

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 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 domestic-violence misdemeanant. Separately, he argues that Section 922(g) is 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 domestic-violence 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, 129 S.Ct. 1079.

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 domestic-violence 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...