United States v. Lavalais

• Decision Date: 22 May 2020
• Docket Number: No. 19-30161,19-30161
• Citation: 960 F.3d 180
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Rodney LAVALAIS, also known as Whyte Lavalais, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

960 F.3d 180

UNITED STATES of America, Plaintiff - Appellee

v.Rodney LAVALAIS, also known as Whyte Lavalais, Defendant - Appellant

No. 19-30161

United States Court of Appeals, Fifth Circuit.

Filed May 22, 2020

Jeffrey Ryan McLaren, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, Brittany L. Reed, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff - Appellee.

Samantha Jean Kuhn, Gary V. Schwabe, Jr., Esq., Assistant Federal Public Defenders, Celia Clary Rhoads, Esq., Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant - Appellant.

Before SMITH, GRAVES, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

Convicted felons are prohibited from possessing firearms—and anyone who "knowingly violates" this prohibition may be imprisoned up to 10 years. 18 U.S.C. §§ 922(g)(1), 924(a)(2). The Supreme Court recently construed these provisions to require, for the first time, that the prosecutor prove not only that the felon knows he is possessing a firearm—but that the felon also knows he is a convicted felon. See Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019).

Prior to Rehaif , countless felons pleaded guilty under § 922(g)(1) without ever objecting that the Government should be required to prove they knew they were convicted felons. Accordingly, it is undisputed that they must overcome plain error review if they wish to object now under Rehaif for the first time on appeal. See FED. R. CRIM. P. 52(b). That is, the defendant must prove not only that the court plainly erred, but that the error "affected his substantial rights, i.e. , caused him prejudice"—typically, by "affect[ing] the outcome of the district court proceedings"—and that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States , 556 U.S. 129, 133, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quotations omitted).

The circuits are already split over how Rehaif claims should be analyzed for plain error. The Fourth Circuit has held that Rehaif error is structural error, warranting reversal even in the absence of evidence of prejudice. See United States v. Gary , 954 F.3d 194, 203 (4th Cir. 2020). But we have held the opposite—that defendants must show that any error under Rehaif actually prejudiced the outcome. See United States v. Hicks, 958 F.3d 399 (5th Cir. 2020).

Demonstrating prejudice under Rehaif will be difficult for most convicted felons for one simple reason: Convicted felons typically know they’re convicted felons. And they know the Government would have little trouble proving that they knew. So it is hard to imagine how their conviction or guilty plea was prejudiced by any error under Rehaif . As Justice Alito put it: "Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants." Rehaif , 139 S. Ct. at 2209 (Alito, J., dissenting).

This case is no exception. Accordingly, we affirm.

I.

Police officers in Kenner, Louisiana conducted a sting operation on an illegal prostitution business. They located the contact information for an escort, Chyna, and arranged a meeting with her. An undercover detective met with Chyna and gave her $300 for her services. But before the police could arrest her, Chyna fled in a silver Ford Explorer. So the detectives wrote down the license plate number of the car. And they later determined that the Ford Explorer was rented from Avis—by Rodney Lavalais.

The officers set up a second meeting with Chyna. That time, they arrested her as well as her driver—Lavalais. The officers then executed a search warrant on the vehicle and found a loaded Glock pistol near the driver’s seat.

Detectives subsequently learned that the Glock was purchased not by Lavalais, but by another individual. That person had also rented a car from Avis. But the renter let Lavalais drive the rental car, while leaving her belongings in the car—including her Glock. Lavalais never returned either the car or the Glock to her.

Avis later found the vehicle at the address listed on Lavalais’s Louisiana identification. When Avis contacted the renter to inform her that the company had found her rental car, she asked if Avis had also found her Glock. In her email to Avis, she asked "if [the Glock] was recovered"—and stated that "if not I have to file a police report that it is missing."

Lavalais pleaded guilty for being a convicted felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He signed a factual resume admitting that he possessed a firearm, that the firearm traveled in and affected interstate commerce, and that he had been convicted of a felony in 2008. At his rearraignment, the district court recited the elements of the offense, stating that the Government would need to prove (1) that he knowingly possessed a firearm; (2) that he had been convicted of a crime punishable by a term of imprisonment greater than one year prior to that possession; and (3) and that the firearm traveled in or affected interstate commerce—but not, as Rehaif now requires, that he knew he was a convicted felon at the time he possessed the firearm. Lavalais stated that he understood the charges and elements. The judge read the factual basis into the record, and Lavalais admitted those facts were true.

The presentence report assigned Lavalais a base offense level of 14. U.S.S.G § 2K2.1(a)(6)(A). The PSR applied a two-level increase because the firearm was stolen, U.S.S.G. § 2K2.1(b)(4)(A) ; a four-level enhancement for using the gun while engaging in the activity of another felony—commercial sex trafficking, U.S.S.G. § 2K2.1(b)(6)(B) ; and a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a), (b). That added up to a total offense level of 17. The PSR also found a criminal history category of III, leading to an advisory Guidelines range of 30 to 37 months in prison.

Lavalais objected to the PSR on multiple grounds. First, he argued the firearm was not stolen. He also objected to the four-level enhancement for using a firearm while in commission of sex trafficking.

After Lavalais’s objection, the Government sought and received a two-level increase for obstruction of justice. With a total offense level of 19 and a criminal history category of III, the advisory guidelines range was 37 to 46 months. The Government then sought an upward departure due to the seriousness of his offense, the number of his previous arrests, and the circumstances of his most recent arrest, as well as to reflect his disrespect for the law, his danger to the community, and the nature of his crime, and to protect the community from further crimes. The probation officer updated his criminal history category, first to category VI, and then to category V, resulting in a Guidelines range of 57 to 71 months.

The district court alerted Lavalais that it was considering an upward departure under U.S.S.G. § 4A1.3(a), or alternatively, an upward variance, for reasons set forth in 18 U.S.C. § 3553(a).

At sentencing, Lavalais again raised his objections to the PSR. The district court agreed that the four-level enhancement was not warranted. It then determined that the Government had established by a preponderance of the evidence that Lavalais intended to deprive the firearm’s true owner of her Glock, so it kept the two-level enhancement for the stolen firearm. The court also applied the obstruction enhancement. With a total offense level of 15 and a criminal history category of V, the advisory Guidelines range was 37 to 46 months.

The district court then determined that a sentence above the advisory Guidelines range was necessary. On that basis, the court concluded a base offense level of 22 and criminal history category of VI provided an appropriate Guidelines range—and settled on a sentence of 105 months, followed by three years of supervised release. The court explained that, even if it erred in imposing an upward departure under § 4A1.3, it would have ordered a non-Guidelines sentence identical to the one imposed. In the alternative, it imposed the same sentence by way of an upward variance under § 3553(a).

Lavalais objected to the sentence as unreasonable and brought this timely appeal.

II.

Because Lavalais did not preserve his challenge to the validity of the guilty plea, we review for plain error. United States v. Vonn , 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To reverse under plain error review, we must find (1) an error, (2) that is clear or obvious, and (3) that affects the defendant’s substantial rights. If those conditions are met, the court may exercise its discretion to grant relief if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The defendant has the burden to demonstrate that all four prongs of plain error review are met. United States v. Rivera , 784 F.3d 1012, 1018 (5th Cir. 2015).

To the extent Lavalais argues his indictment is fatally defective because it did not contain an element of the offense under § 922(g), he failed to preserve that claim by pleading guilty. Class v. United States , ––– U.S. ––––, 138 S. Ct. 798, 804–05, 200 L.Ed.2d 37 (2018) ; United States v. Daughenbaugh , 549 F.3d 1010, 1012–13 (5th Cir. 2008). Unpreserved errors concerning the plea colloquy under Federal Rule of Criminal Procedure 11(b) are reviewed for plain error. United States v. Davila , 569 U.S. 597, 609–11, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013).

This court reviews errors in interpreting and applying the sentencing guidelines de novo. United States v. White , 465 F.3d 250, 252 (5th Cir. 2006). Factual findings are reviewed for clear error. United States v. Alfaro ,...