            Case: 18-10956   Date Filed: 04/22/2020   Page: 1 of 22



                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 18-10956
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 8:17-cr-00090-SDM-MAP-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus


ISAAC THOMAS,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                               (April 22, 2020)

  ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JORDAN, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:
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      After pleading guilty, Isaac Thomas appeals his convictions for possession

of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (“Count 1”), and possession of a firearm within 1,000 feet of a school

zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“Count 2”). For the

first time on appeal, Thomas argues that: (1) both his Count 1 and Count 2 firearm

convictions should be vacated because the § 922(g)(1) and (q) statutes violate the

Commerce Clause and are unconstitutional; and (2) his Count 1 firearm conviction

should be vacated because his plea colloquy failed to establish that he knew that he

was a convicted felon at the time he possessed the firearm.

      In 2019, this Court affirmed Thomas’s two convictions and total sentence.

United States v. Thomas, 767 F. App’x 758 (11th Cir. 2019). Thereafter, the

Supreme Court decided Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191

(2019), holding that in prosecutions under §§ 922(g) and 924(a)(2), the

government must prove that when the defendant possessed the firearm, “he knew

he belonged to the relevant category of persons barred from possessing a firearm,”

such as his status as a convicted felon or as an alien unlawfully in the country. See

Rehaif, 588 U.S. at ___, 139 S. Ct. at 2194-97, 2200.

      On October 15, 2019, the Supreme Court granted Thomas’s petition for a

writ of certiorari, vacated our judgment, and remanded for reconsideration in light

of Rehaif. After that remand, we ordered supplemental briefing. After review, we:


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(1) restate substantial parts of our earlier opinion; (2) add relevant facts and legal

analysis as to Thomas’s plea and sentencing on Count 1; and (3) review anew

Thomas’s firearm conviction in Count 1 in light of Rehaif.

                          I. FACTUAL BACKGROUND

A.    Offense Conduct

      In January 2017, a fight broke out at a basketball game at a public high

school in Plant City, Florida. After the game ended, several people, including

Thomas, resumed the fight a few blocks away from the school. Local law

enforcement officers responded at the scene with their police car’s lights and siren

activated.

      One officer saw Thomas emerge from the crowd while holding a firearm,

which Thomas fired. Thomas then took his firearm, ran down a road, and got into

the passenger side of a car. Officers pursued the car until it crashed. At that point,

Thomas abandoned the car and fled on foot. As Thomas attempted to flee, he was

shot by an officer and apprehended.

      Officers recovered a Ruger 9-millimeter firearm, loaded with six live rounds

of 9-millimeter ammunition, approximately ten feet away from where Thomas was

apprehended. They also found a spent 9-millimeter shell casing in the place where

Thomas was standing when he fired the weapon. In later interviews with law




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enforcement officers, Thomas admitted to possessing the Ruger 9-millimeter

firearm and to firing it.

       As a result, a federal grand jury indicted Thomas on Count 1, possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(“the § 922(g) offense”), and Count 2, possession of a firearm within 1,000 feet of

a school zone, in violation of 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) (“the

§ 922(q) offense”). Under Count 1, the indictment alleged that Thomas was

prohibited from possessing a firearm due to a 2012 felony conviction for attempted

carjacking.1

B.     Factual Basis for Thomas’s Guilty Plea

       In August 2017, Thomas pled guilty pursuant to a written plea agreement.

As to Count 1, Thomas pled guilty to “knowingly possess[ing] . . . a firearm and

ammunition” after “having been previously convicted in any court of a crime

punishable by imprisonment for a term exceeding one year, including: Attempted

Carjacking, on or about August 21, 2012.” As to Count 2, Thomas pled guilty to

knowingly possessing a firearm “that had moved in and affected interstate

commerce” within 1,000 feet of the grounds of a school, a place Thomas knew or

had reasonable cause to believe was a school zone.


       1
         The indictment did not allege that Thomas was aware of his convicted felon status at the
time of the instant unlawful firearm possession. Thomas’s supplemental brief expressly
disclaims any Rehaif-based challenge to the sufficiency of his indictment.
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      As part of his plea agreement, Thomas agreed to the following factual basis

for his plea. The factual basis stated, inter alia, that Thomas had previously been

“convicted of the felony of attempted carjacking” in 2012 and “[h]is right to

possess firearms and ammunition had not been restored.” Thereafter, on January

20, 2017, Thomas held and fired a firearm as he emerged from a crowd that was

watching a fight outside of a school. When police approached, Thomas fled on

foot and entered the passenger side of a car. Police pursued the car until it crashed.

As Thomas fled the vehicle, he was shot by police and apprehended. Officers

found Thomas’s loaded firearm, a 9-millimeter Ruger, approximately ten feet from

where he was apprehended and recovered a spent round of ammunition from the

spot where Thomas was standing when he fired the firearm outside the school.

During an interview with law enforcement, Thomas admitted having and firing the

Ruger, but denied pointing it at any law enforcement officer.

      The factual basis also established that the Ruger 9-millimeter firearm

Thomas possessed traveled in or affected interstate commerce because it was

manufactured outside of Florida, where the instant offense occurred. Specifically,

Alcohol, Tobacco, Firearms, and Explosives Special Agent Walt Lanier examined

the firearm and determined that it was manufactured in Arizona.




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C.    Plea Hearing

      At his change-of-plea hearing, Thomas acknowledged that he had discussed

his plea agreement with his counsel and that he had not been induced or forced to

plead guilty. The magistrate judge reviewed the terms and conditions of Thomas’s

plea agreement, the rights Thomas was relinquishing by pleading guilty, the

consequences of pleading guilty, and the elements of the two charged offenses.

      The magistrate judge summarized the elements of Thomas’s two charges.

As to Thomas’s § 922(g) offense in Count 1, the magistrate judge stated that the

government would be required to prove that: (1) before possessing the firearm on

or about January 20, 2017, Thomas was a convicted felon whose rights had not

been restored; (2) on or about January 20, 2017, Thomas knowingly possessed the

Ruger 9-millimeter firearm; and (3) the Ruger 9-millimeter firearm affected

interstate commerce, that is, it was manufactured outside the State of Florida.

Thomas agreed that he understood this § 922(g) charge and the elements of the

offense and pled guilty to Count 1. In response to the magistrate judge’s

questioning, Thomas confirmed that he was a convicted felon at the time he

possessed the firearm near the school. Thomas’s counsel agreed that the

government would be able to prove at trial that the firearm had traveled in

interstate commerce and that Thomas was a convicted felon.




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      As to the § 922(q) offense in Count 2, the magistrate judge explained that

the government would be required to prove that: (1) Thomas knowingly possessed

the Ruger 9-millimeter firearm within 1,000 feet of a school zone; (2) Thomas had

reason to believe that he was in a school zone; (3) the firearm had traveled in or

affected interstate commerce at some point during its existence; and (4) Thomas

acted knowingly. Again, Thomas agreed that he understood the § 922(q) charge

and the elements of this offense and pled guilty to Count 2.

      The magistrate judge found that Thomas was competent and capable of

entering an informed plea, that his plea was knowingly and voluntarily made, and

that his plea was supported by an independent factual basis containing all the

essential elements of his offenses. The magistrate judge recommended that

Thomas’s guilty plea be accepted. Without objection, the district court accepted

Thomas’s guilty plea and adjudged him guilty.

D.    Presentence Investigation Report

      Thomas’s presentence investigation report (“PSI”) assigned him a total

offense level of 34 and a criminal history category of III. Because the PSI found

that Thomas had fired the firearm at a law enforcement officer who was on the

scene, it recommended calculating Thomas’s offense level for Count 1, pursuant to

U.S.S.G. §§ 2K2.1(c)(1)(A) and 2X1.1(c)(1), by applying the base offense level

for attempted murder in § 2A2.1(a)(1).


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      The criminal history portion of the PSI stated that Thomas had several prior

criminal convictions, including: (1) several juvenile adjudications for both felonies

and misdemeanors, the last of which resulted in Thomas being sentenced to one

year of imprisonment at the Florida Department of Juvenile Justice; (2) a January

31, 2011 conviction, pursuant to a guilty plea, for felony attempted carjacking in

Florida state court for which he initially was sentenced to 364 days in prison and

three years of probation, but after his probation was revoked on August 21, 2012,

he was sentenced to 13 months more in prison; and (3) two July 2012

misdemeanor convictions, pursuant to guilty pleas, for resisting an officer without

violence in Florida state court for which he was sentenced to 30 days in prison.

The PSI also stated that, in connection with his 2011 attempted carjacking

conviction, Thomas “had his civil rights to carry a firearm rescinded and they were

never restored.” The PSI assigned three criminal history points for Thomas’s

attempted carjacking conviction and one point each for Thomas’s resisting an

officer without violence convictions, for a total of five criminal history points.

      The PSI’s guidelines calculations resulted in an advisory guidelines range of

188 to 235 months’ imprisonment. However, the statutorily authorized maximum

sentences for Count 1 under §§ 922(g)(1) and 924(a)(2) and Count 2 under §§

922(q)(2)(A) and 924(a)(4) were less than the minimum of Thomas’s advisory

guidelines range. Under §§ 922(g)(1) and 924(a)(2), the maximum term of


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imprisonment is ten years, and under §§ 922(q)(2)(A) and 924(a)(4), the maximum

term of imprisonment is five years. Also, the term of imprisonment for Count 2

under §§ 922(q)(2)(A) and 924(a)(4) had to run consecutive to any other term of

imprisonment imposed. See 18 U.S.C. § 924(a)(4). Therefore, Count 1’s adjusted

advisory guidelines range was reduced to 120 months’ imprisonment, the statutory

maximum. See U.S.S.G. § 5G1.1(a) (providing that, “[w]here the statutorily

authorized maximum sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the guideline

sentence.”). Count 2’s adjusted advisory guidelines range was reduced to 60

months’ imprisonment, the statutory maximum. See id.

      Thomas filed objections to the PSI, including to whether he had fired his

firearm at an officer, most of which are not relevant to his appeal. We note

however, that in his objections, Thomas argued that he served a prison sentence of

one year and one month for his attempted carjacking offense and should have

received only two criminal history points. In response, the probation officer stated

that Thomas’s “total term of imprisonment for this conviction [was] two years and

30 days” and therefore three criminal history points were warranted under the

Sentencing Guidelines. This total imprisonment of two years and 30 days

consisted of: (1) his initial 364-day sentence, and (2) his subsequent 13-month

sentence after his probation revocation.


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      Prior to sentencing, Thomas also filed a sentencing memorandum and

motion for a downward variance, requesting that the district court impose a total

sentence of 70 months’ imprisonment. In both his objections to the PSI and his

sentencing memorandum, Thomas did not argue (1) that § 922(g)(1) and (q) were

unconstitutional, or (2) that the plea colloquy omitted an essential element of either

of his charges.

E.    Thomas’s Sentencing

      A large part of Thomas’s sentencing was taken up with the issue of whether

Thomas fired the firearm at a law enforcement officer in an attempt to murder the

officer for purposes of calculating his offense level under U.S.S.G.

§§ 2K2.5(c)(1)(A), 2X1.1, and 2A2.1(a)(1). In that regard, the district court

viewed video evidence and heard testimony from two law enforcement officers

involved in Thomas’s apprehension and another officer who investigated the

officer-involved shooting of Thomas. Based on the evidence, the district court

found that Thomas had not intended to kill the law enforcement officer when he

fired the firearm in the direction of the officer. However, the district court rejected

Thomas’s argument that he merely fired the gun into the air to disburse the crowd

and found instead that the two-level reckless endangerment enhancement of

U.S.S.G. § 3C1.2 applied.




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       As for his criminal history points, Thomas’s objection changed slightly.

Thomas argued that his attempted carjacking conviction should have received only

two criminal history points because he committed that offense as a juvenile. The

probation officer explained that even though Thomas was a juvenile at the time of

the offense, he was convicted as an adult, and his total sentence—the initial 364-

day prison term plus the 13-month prison term after Thomas’s probation

revocation—exceeded one year and one month for purposes of assigning three

criminal history points under U.S.S.G. § 4A1.2(d)(1). 2 [When Thomas’s counsel

agreed with the probation officer that the two sentences should be added together

to determine criminal history points, the district court overruled the objection.

       Ultimately, the district court revised Thomas’s total offense level down to

32. Thomas’s criminal history category remained at III, which yielded an advisory

guidelines range of 151 to 188 months’ imprisonment. See U.S.S.G. Ch. 5 Part A.

       The law enforcement officer in whose direction Thomas had fired the

firearm gave a victim impact statement. During his allocution, Thomas apologized

to anyone traumatized by his actions and stated that he had “made a mistake out of

impulse,” but was willing to accept responsibility for what he had done. Thomas

insisted, however, that he did not intend to hurt anyone and did not point or fire the


       2
          While the sentencing transcript indicates that the probation officer stated that Thomas’s
initial sentence was for 264 days, this appears to be a typographical error, as the PSI stated,
without objection, that the sentence was for 364 days.
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firearm at any law enforcement officers. After considering the parties’ arguments,

Thomas’s allocution, the advisory guidelines range, and the 18 U.S.C. § 3553(a)

factors, the district court imposed the statutory maximum 120-month sentence for

Thomas’s § 922(g) offense in Count 1, followed by a consecutive statutory

maximum 60-month sentence for Thomas’s § 922(q) offense in Count 2, for a total

of 180 months.

       When the district court asked for objections, Thomas’s counsel stated that

Thomas objected to the procedural and substantive reasonableness of the sentence.

Throughout the district court proceedings, Thomas did not claim: (1) that his guilty

plea was involuntary; (2) that his plea colloquy omitted an essential element of his

§ 922(g) offense in Count 1; or (3) that he did not know he was a convicted felon.

   II. 18 U.S.C. § 922(q): POSSESSION OF A FIREARM NEAR SCHOOL

       On appeal and for the first time, Thomas argues that his Count 2 conviction

under 18 U.S.C. §§ 922(q)(2)(A) and 924(a)(4) should be vacated because § 922(q)

is unconstitutional, both facially and as applied. 3 He notes that in United States v.

Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), the Supreme Court struck down the

Gun-Free School Zones Act of 1990, which was an earlier version of § 922(q),

because it exceeded Congress’s powers under the Commerce Clause. Although


       3
        We generally review the constitutionality of a statute de novo. United States v. Wright,
607 F.3d 708, 715 (11th Cir. 2010). However, where a defendant raises a constitutional
challenge for the first time on appeal, we review only for plain error. Id.
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Congress amended § 922(q) to comply with Lopez, Thomas argues that the

amended version is still unconstitutional because it did not cure the Commerce

Clause problems identified in Lopez and United States v. Morrison, 529 U.S. 598,

120 S. Ct. 1740 (2000). We review Lopez, Morrison, and then the amended

version of § 922(q).

A.    Lopez and Morrison

      In 1995, the Supreme Court held that a prior version of § 922(q), also known

as the Gun-Free School Zones Act of 1990, was unconstitutional because it

exceeded Congress’s authority under the Commerce Clause. Lopez, 514 U.S. at

551, 561-63, 115 S. Ct. at 1626, 1630-32; see Pub. L. No. 101-647, 101 Stat. 4789,

4844 (1990). The version of § 922(q) at issue in Lopez made it a federal offense

“knowingly to possess a firearm at a place that the individual knows, or has

reasonable cause to believe, is a school zone.” Lopez, 514 U.S. at 551, 115 S. Ct.

at 1626.

      The Supreme Court held that this version of § 922(q) violated the Commerce

Clause because it did not limit the offense to situations substantially affecting

interstate commerce. Id. at 561, 115 S. Ct. at 1630-31. In particular, the Lopez

Court pointed out that § 922(q) “contain[ed] no jurisdictional element which would

ensure, through case-by-case inquiry, that the firearm possession in question

affect[ed] interstate commerce.” Id. at 561, 115 S. Ct. at 1631. The Court also


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observed that neither § 922(q) nor its legislative history contained express

congressional findings regarding the effects upon interstate commerce of gun

possession in a school zone. Id. at 562-63, 115 S. Ct. at 1631-32.

      Subsequently in 2000, the Supreme Court struck down certain provisions of

the Violence Against Women Act as unconstitutional for exceeding Congress’s

authority under the Commerce Clause. Morrison, 529 U.S. at 605, 613, 617, 120

S. Ct. at 1747, 1751-52, 1754. While Morrison involved a wholly different statute,

Thomas cites Morrison for its dicta discussing the Lopez decision, its reasoning,

and its labeling of the “link between gun possession and a substantial effect on

interstate commerce” as attenuated. Id. at 609-14, 120 S. Ct. at 1749-52.

B.    Post-Lopez Amendment to 18 U.S.C. § 922(q)

      Responding to Lopez, Congress amended § 922(q) to include an express

interstate commerce requirement. See Pub. L. No. 104-208, § 657, 110 Stat. 3009-

369 to 370 (1996) (amending the Gun-Free School Zones Act of 1990). Section

922(q) now requires that the offender “knowingly [] possess a firearm that has

moved in or that otherwise affects interstate or foreign commerce at a place that

the individual knows, or has reasonable cause to believe, is a school zone.” 18

U.S.C. § 922(q)(2)(A) (emphasis added). Congress also amended § 922(q) to

include extensive congressional findings regarding the effects upon interstate

commerce of gun possession in a school zone. See 18 U.S.C. § 922(q)(1)(A)-(I).


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C.    Thomas’s Constitutional Claims

      As an initial matter, because Thomas failed to raise his constitutional

challenge to § 922(q) below, we review it for plain error. See United States v.

Wright, 607 F.3d 708, 715 (11th Cir. 2010).

      Although Thomas argues that the amended § 922(q) is facially

unconstitutional based on Lopez, Congress amended § 922(q) to include an explicit

“affecting interstate commerce” element to cure the deficiencies identified in

Lopez. See 18 U.S.C. § 922(q)(2)(A) (providing that the offender must possess “a

firearm that has moved in or that otherwise affects interstate or foreign

commerce”). The amended § 922(q) also includes extensive congressional

findings regarding the effects upon interstate commerce of gun possession in a

school zone post-Lopez, such as that firearms move easily in interstate commerce

and that they move in interstate commerce during their manufacturing process.

See 18 U.S.C. §§ 922(q)(1)(C), (D).

      Thomas’s reliance on Morrison fares no better. Although the Supreme

Court in Morrison referenced an attenuated link between interstate commerce and

firearm possession in the pre-Lopez version of § 922(q), it did not address at all the

amended version of § 922(q), much less hold it is unconstitutional. See Morrison,

529 U.S. at 609-14, 120 S. Ct. at 1749-52.




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       The government stresses that Thomas has not shown that § 922(q) is

unconstitutional. Our sister circuits under de novo review have rejected

constitutional challenges to § 922(q) that were similar to Thomas’s. See United

States v. Nieves-Castano, 480 F.3d 597, 601 (1st Cir. 2007); United States v.

Danks, 221 F.3d 1037, 1038-39 (8th Cir. 1999). At a minimum, Thomas has failed

to demonstrate plain error as to the constitutionality of § 922(q) because neither the

Supreme Court nor this Court has held that the amended § 922(q) is

unconstitutional. See United States v. Castro, 455 F.3d 1249, 1253 (11th Cir.

2006).

       As to Thomas’s argument that § 922(q) is unconstitutional as applied to him,

the amended § 922(q) now requires a nexus to interstate commerce where the

firearm has moved in or otherwise affects interstate commerce. See 18 U.S.C.

§ 922(q)(2)(A). And the record here established that Thomas’s firearm had moved

in interstate commerce. The factual basis in Thomas’s plea agreement stated that

the firearm Thomas possessed traveled in or affected interstate commerce because

it was manufactured in Arizona and he possessed it in Florida. 4 Therefore,

Thomas has failed to show error, much less plain error, as to the constitutionality




       4
         As an additional point, at Thomas’s change-of-plea hearing, Thomas’s counsel
confirmed that the government would have been able to prove at trial that the firearm traveled in
interstate commerce.
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of § 922(q), and we affirm his Count 2 conviction under §§ 922(q)(2)(A) and

924(a)(4).

III. 18 U.S.C. § 922(g)(1): FELON IN POSSESSION OF A FIREARM

      In his supplemental briefing, Thomas argues that we must vacate his

§ 922(g) conviction in Count 1 in light of Rehaif. In particular, Thomas contends

that because the district court failed to advise him about the additional knowledge

element announced in Rehaif (in Thomas’s case, knowledge of his status as a

convicted felon), his plea was not knowingly and voluntarily entered and must be

set aside.

A.     Plain Error Review

      Because Thomas did not raise a Rehaif-type claim in the district court, we

review his challenge to his guilty plea for plain error. See United States v.

Moriarty, 429 F.3d 1012, 1018-19 (11th Cir. 2005). Plain error occurs when

(1) there is error, (2) that is plain, and (3) that affected the defendant’s substantial

rights. Id. at 1019. “If all three conditions are met, we may exercise our discretion

to recognize a forfeited error, but only if the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Id. (quotation marks and

alteration omitted).




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B.    Thomas’s Rehaif Claim

      Federal Rule of Criminal Procedure 11 requires that the district court during

the change-of-plea hearing, among other things, “inform the defendant of, and

determine that the defendant understands, . . . the nature of each charge to which

[he] is pleading.” Fed. R. Crim. P. 11(b)(1)(G).

      Here, as Rehaif makes plain, the district court erred when it failed to advise

Thomas during the plea colloquy that knowledge of his status as a felon at the time

of his offense was an element of his §§ 922(g) and 924(a)(2) offense that the

government must prove. See Rehaif, 588 U.S. at ___, 139 S. Ct. at 2194-97. Thus,

in this direct appeal context, Thomas has shown error that is plain. The question

becomes whether Thomas can satisfy the third prong of plain error review.

      To show that an error affected substantial rights in the guilty plea context,

the defendant “must show a reasonable probability that, but for the error, he would

not have entered his plea.” Moriarty, 429 F.3d at 1020; see also United States v.

Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). This Court

has indicated that the defendant’s burden with respect to the third prong of plain

error review is a “daunting obstacle” that is difficult to satisfy, and that, if the

record shows “that it is as likely that the error had no effect on [his] decision, he

cannot prevail.” United States v. Davila, 749 F.3d 982, 994 (11th Cir. 2014)

(quotation marks omitted, alteration in original). Based on the record as a whole,


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we conclude that Thomas has not met his burden to show that if the district court

had properly advised him of Rehaif’s knowledge element, then he would not have

entered a guilty plea.

       First, as part of his plea, Thomas admitted that when he possessed the

firearm on January 20, 2017, he had already been convicted of the felony of

attempted carjacking in 2011 and that his right to possess firearms and ammunition

had not been restored. Likewise, at sentencing, Thomas did not object to the facts

in his PSI that he pled guilty to the attempted carjacking offense, that he was

sentenced to more than one year in prison (the initial 364-day prison term and the

additional 13-month prison term when his probation was revoked), and that his

civil rights to carry a firearm were rescinded and never restored. 5

       In addition, the government stresses that the attempted carjacking offense to

which Thomas pled guilty in Florida state court was a serious, second-degree

felony punishable by up to 15 years in prison. See Fla. Stat. §§ 812.133(2)(b) &

777.04(1), (4)(c) (designating attempted carjacking as a second-degree felony);

Fla. Stat. § 775.082(3)(c)(2009) (providing a penalty of “imprisonment not


       5
         Thomas points out that, although he was sentenced to an additional 13-month prison
term on August 21, 2012, he was released from custody less than two months later on October 1,
2012. Thomas’s probation revocation was prompted by his arrest on May 14, 2012 for resisting
an officer without violence, and it is not clear from the record how much of the 13-month
sentence Thomas actually served before he was released. Whether Thomas served an additional
13 months, 5 months, or 6 weeks after his probation was revoked, the fact remains that, at
sentencing, Thomas did not dispute that he had served more than one year in prison for his
attempted carjacking conviction.
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exceeding 15 years” for a second-degree felony). Further, the state court that

accepted Thomas’s guilty plea was required by Florida law to first ensure that

Thomas understood that the statutory maximum penalty for his attempted

carjacking offense was 15 years’ imprisonment. See Fla. R. Crim. P. 3.172(c)(1)

(requiring the trial judge, before accepting a plea of guilty, to address the defendant

personally and determine on the record whether the defendant understands, among

other things, “the maximum possible penalty” provided by law); Ashley v. State,

614 So. 2d 486, 488 (Fla. 1993). Thomas does not point to anything in the record

to suggest that the state court judge who accepted his guilty plea failed to comply

with state law. See United States v. Burghardt, 939 F.3d 397, 404-06 (1st Cir.

2019) (concluding that the defendant failed to carry his burden on plain error

review to show a reasonable probability that he would not have pled guilty had the

district court advised him of Rehaif’s knowledge element based in part on an

analogous New Hampshire law requiring that the defendant be advised of his

maximum sentence and the fact that the defendant did not present evidence

indicating that the state court in his case did not conform to state law).       This

record indicates, if anything, that Thomas was aware of his felon status when he

possessed the 9-millimeter Ruger in 2017. Notably, Thomas does not now claim,

and never has claimed, that he did not know he was a convicted felon and that he

would have proceeded to trial had he known that the government must prove this


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knowledge element. In this respect, the cases Thomas relies on stand in stark

contrast and hurt, rather than help, him. For example, in United States v. Brown,

the defendant was reluctant to plead guilty. Brown, 117 F.3d 471, 473 (11th Cir.

1997). At the plea colloquy, both the defendant and his counsel explained to the

district court that at the time of his offense, the defendant had not known that

structuring currency transactions was illegal and that he was convinced to plead

guilty only after his attorney showed him then-binding, but later overruled, caselaw

from this Circuit holding that knowledge of illegality was not an element of the

currency structuring offense. Id.

       Similarly, the plea colloquy in the Second Circuit’s United States v. Balde

indicated that the defendant in that case would not have pled guilty had the district

court informed him, per Rehaif, that the government must prove he knew of his

status as an illegal alien. Balde, 943 F.3d 73, 95-98 (2d Cir. 2019). The defendant

in Balde “vigorously argued” in the district court that he was lawfully present in

the United States, preserved that issue for appellate review in his plea agreement,

and continued to maintain during his plea colloquy that he thought he had been

paroled into the United States at the time of his firearm offense. 6 Id. at 97; see also



       6
          We reject Thomas’s suggestion that either of these cases supports the proposition that a
district court’s plea colloquy omitting an element of an offense is per se reversible error. Balde
applied plain error review and determined, based “on the facts of this case,” that the defendant
had carried his burden to show that the error affected his substantial rights. See Balde, 943 F.3d
at 96-97. Brown involved an appeal of the denial of a 28 U.S.C. § 2255 motion in which the
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               Case: 18-10956      Date Filed: 04/22/2020      Page: 22 of 22



United States v. Ochoa-Gonzalez, 598 F.3d 1033, 1037-38 (8th Cir. 2010)

(concluding that a defendant established plain error that affected her substantial

rights where she maintained at her plea hearing that she did not know until after

she was indicted that the number on her passport belonged to a real person, an

essential element of her aggravated identity theft offense of which she was not

advised).

       In short, on plain error review, Thomas has the burden to show a reasonable

probability that he would not have pled guilty but for the district court’s Rehaif

error, and, on this record, Thomas has not done so. Accordingly, we affirm

Thomas’s Count 1 conviction under §§ 922(g) and 924(a)(2).

                                  IV. CONCLUSION

       For the reasons stated, we affirm Thomas’s convictions and sentence.

       AFFIRMED.




“undisputed facts” showed not only that the defendant was misinformed about an element of his
offense, but that the “misinformation caused him to plead guilty.” Brown, 117 F.3d at 477.
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