     Case: 17-11301   Document: 00515003208        Page: 1   Date Filed: 06/19/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                    No. 17-11301                     June 19, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff - Appellee

v.

MICHAEL ANGELO ORTIZ,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Northern District of Texas


Before OWEN, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:

      Michael Angelo Ortiz pleaded guilty to possessing a firearm and
ammunition as a convicted felon. On appeal, he argues that the factual basis
supporting his plea was insufficient. We disagree. The factual basis
demonstrated that Ortiz’s conduct satisfied all elements of the offense.
Accordingly, we affirm the district court’s acceptance of his guilty plea.
I.    Proceedings
      In June 2017, a grand jury indicted Michael Angelo Ortiz on one count:
possessing a firearm and ammunition as a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment charged:
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                                  No. 17-11301
       On or about February 19, 2017, in the Lubbock Division of the
       Northern District of Texas, and elsewhere, Michael Angelo Ortiz,
       defendant, a person who had previously been convicted of a crime
       punishable by a term of imprisonment exceeding one year,
       knowingly possessed a firearm and ammunition in and affecting
       interstate and foreign commerce, to wit: a Smith & Wesson, .40
       caliber pistol, serial number PAK 7828, with ammunition.

       Pursuant to a plea agreement, Ortiz pleaded guilty to the indictment and
waived his right to appeal. Ortiz made no objections to the stipulated facts
attached to the plea (the “Factual Resume”) and never raised any affirmative
defense. A presentence report (“PSR”) was prepared.
       The district court sentenced Ortiz to 90 months of imprisonment. The
sentence fell within the applicable Guidelines range of 84 to 105 months and
was followed by a three-year term of supervised release.
       On appeal, the Federal Public Defender moved for leave to withdraw and
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Ortiz
filed a response asserting, in relevant part, that he had acted in self-defense.
This court ordered that the motion to withdraw be carried with the case
because Ortiz’s counsel had failed to discuss “whether a colorable defense of
justification was presented.” Thereafter, Ortiz’s counsel withdrew the Anders
motion and filed a short brief on the merits, arguing that the district court
plainly erred in accepting a guilty plea that contained an insufficient factual
basis. At no point in the course of these proceedings did Ortiz move to withdraw
his guilty plea.
II.    Factual Background
       Because the precise content of the record is central to this case, we take
care to present, in detail, what was recited in the Factual Resume and in the
PSR.



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                           No. 17-11301
 The Factual Resume reads as follows:
 1.     Michael Angelo Ortiz admits and agrees that starting on or
 about February 19, 2017, in the Lubbock Division of the Northern
 District of Texas, and elsewhere, Michael Angelo Ortiz, defendant,
 a person who had previously been convicted of a crime punishable
 by a term of imprisonment exceeding one year, knowingly
 possessed a firearm and ammunition in or affecting interstate or
 foreign commerce, to wit: a Smith & Wesson, .40 caliber pistol,
 serial number PAK7828, several rounds of ammunition, in
 violation of Title 18, United States Code, Sections 922(g)(l) and
 924(a)(2).

 2.    On February 19, 2017, Ortiz was involved in an altercation
 with an individual in Lubbock, Texas, a city within the Northern
 District of Texas. Prior to altercation, Ortiz had been notified by
 this individual that he was waiting outside Ortiz’s apartment
 complex in order to speak with him. During the course of their
 conversation, Ortiz pulled out a pack of cigarettes and offered the
 individual a cigarette from a package where Ortiz was also storing
 some money. Seeing Ortiz’s money, the individual attempted to
 grab the pack of cigarettes away from Ortiz and the altercation
 ensued. During the altercation, the individual threatened Ortiz
 with the Smith & Wesson, bearing Serial Number PAK7828. Ortiz
 in response grabbed the Smith & Wesson. As the individual and
 Ortiz fought over the gun, the gun discharged and shots were fired
 into the roof of the vehicle. Once the shots had been fired, Ortiz
 broke away and ran. After the altercation, Ortiz barricaded
 himself inside a nearby apartment, where Ortiz, his girlfriend, and
 his small children resided. After several hours, Ortiz voluntarily
 exited the apartment and surrendered to law enforcement.

 3.    Law enforcement recovered the firearm from a trash bin
 near the apartment where Ortiz and his family resided. Ortiz’s
 jacket was located on the ground next to the trash bin where the
 gun was found. Ortiz admits that he possessed the Smith &
 Wesson on February 19, 2017, in Lubbock, Texas.

 4.    [An ATF Special Agent] inspected the seized firearm and
 determined that the firearm had been manufactured outside the
 state of Texas. Because the firearm was manufactured outside the
 state of Texas, the firearm traveled in interstate commerce; that
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                                 No. 17-11301
      is, the firearm had traveled at some point from one state to another
      or between any part of the United States and any other country.

      5.    Ortiz admits that prior to the knowing possession of the
      firearm, he had been convicted in a court of a crime punishable by
      imprisonment for a term in excess of one year.

      6.     The defendant agrees that the defendant committed all the
      essential elements of the offense. This factual résumé is not
      intended to be a complete accounting of all the facts and events
      related to the offense charged in this case. The limited purpose of
      this statement of facts is to demonstrate that a factual basis exists
      to support the defendant’s guilty plea to Count One of the
      indictment.

The PSR tells the story from a slightly different perspective, as follows:
      A [law enforcement] officer heard several gun shots. He then
      witnessed Ortiz running, with his jacket in his hand, as if he was
      concealing something inside the jacket. The officer then saw the
      defendant go near a trash bin where a gun was later recovered.
      ...
      Ortiz ran into Apartment No. 2813 and barricaded himself inside.
      ...
      Once police arrived, including SWAT team members, the
      defendant refused to obey police commands and leave the
      apartment. As a result, a police standoff ensued, which lasted more
      than 1 hour.
      ...
      Eventually, after officers instructed the defendant to leave the
      apartment over the police public address system, Ortiz
      surrendered and exited the apartment while carrying one of his
      infant children. The defendant was arrested without incident.
      ...
      Ortiz was later interviewed by officers. He advised officers that he
      was supposed to meet two people and go to a cemetery. So, he met
      these people outside at their vehicle. While talking with them, he
      removed a package of cigarettes, which the driver attempted to get
      from the defendant. Shots were fired. Ortiz ran back into his
      apartment out of fear. When interviewing officers confronted him
      about his story contradicting other witness statements, the
      defendant advised he was meeting a new narcotics contact, when
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                                   No. 17-11301
        the driver pulled a firearm on the defendant. A struggle ensued
        over the firearms, and shots were fired into the vehicle. He then
        ran back to his apartment and discarded the gun in some bushes
        on the way to his apartment.
        ...
        The firearm, a Smith & Wesson[,] . . . was recovered by police from
        a trash bin near the defendant’s apartment . . . On the ground next
        to this trash can, officers found Ortiz’s jacket, which had also been
        discarded.
        ...
        Ortiz was arrested . . . at his mother’s [residence]. A subsequent
        search of the residence revealed 17.87 grams of methamphetamine
        and a loaded [Glock pistol]. The firearm was located under a
        bedroom mattress. . . . Ortiz advised he had received the Glock
        from a friend, and another friend was going to purchase the Glock
        for $1,000.

III.    Standard of Review
        Absent a defendant’s objection in district court, this court reviews the
factual basis of a guilty plea for plain error. United States v. Trejo, 610 F.3d
308, 313 (5th Cir. 2010).
        On plain-error review, a defendant “must first establish an error.”
United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019). Second, the
defendant must show that the error is clear or obvious. Id. Third, the defendant
must prove that the error affected the defendant’s substantial rights. Id. “To
satisfy this third condition, the defendant ordinarily must show a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05
(2018) (internal quotation omitted). “Once those three conditions have been
met, ‘the court of appeals should exercise its discretion to correct the forfeited
error if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.’” Id. at 1905 (quoting Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016)).


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                                 No. 17-11301
IV.    Discussion
       Ortiz argues that the factual basis for his plea does not support his
conviction. We begin by addressing two threshold matters: first, which parts of
the record we should consult for factual information and second, whether
Ortiz’s appeal waiver forecloses his right to challenge the sufficiency of his
guilty plea.
   A. Relevant Sources of Information
       The Advisory Committee’s Notes to Federal Rule of Criminal Procedure
11 make clear that a district court may use sources other than the defendant’s
admissions to confirm that a factual basis exists to support those admissions.
See Fed. R. Crim. P. 11 advisory committee’s note to 1966 amendments (“The
court should satisfy itself, by inquiry of the defendant or the attorney for the
government, or by examining the presentence report, or otherwise, that the
conduct which the defendant admits constitutes the offense charged in the
indictment . . . .”); see also McCarthy v. United States, 394 U.S. 459, 463 n.6
(1969) (acknowledging that “the Advisory Committee suggests three methods
of determining that a factual basis exists for a guilty plea”); Sassoon v. United
States, 561 F.2d 1154, 1159 (5th Cir. 1977) (noting that “the Advisory
Committee’s Notes accompanying Rule 11 list several means of satisfying the
factual basis”).
       In Trejo, this court confirmed that the same scope of sources may be
considered by the appellate reviewer: “In assessing factual sufficiency under
the plain error standard, we may look beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
supporting his conviction.” 610 F.3d at 313 (citing United States v. Tullos, 356
F. App’x 727, 727–28 (5th Cir. 2009)); see also Tullos, 356 F. App’x at 728
(holding that “[t]he plea colloquy, the PSR findings, and the district court’s


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                                  No. 17-11301
statements at sentencing sufficiently support the determination that [the
defendant’s] conduct met all of the elements of the [offense]”).
      Accordingly, we consider the entire record in assessing the sufficiency of
the factual basis.
   B. Appeal Waiver

      The government presses Ortiz’s appeal waiver. But our court has
repeatedly held that “even if there is an unconditional plea of guilty or a waiver
of appeal provision in a plea agreement, this Court has the power to review if
the factual basis for the plea fails to establish an element of the offense which
the defendant pled guilty to appeal waivers in that context.” United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002); see also United States v. Alvarado-
Casas, 715 F.3d 945, 951 (5th Cir. 2013) (noting that the defendant could
“challenge the factual basis underlying his guilty plea notwithstanding his
unconditional appeal waiver”). Accordingly, we proceed to the merits.
   C. Ortiz’s Argument
      Ortiz argues that the factual basis does not support his conviction. But
he fails to specify whether he means that the factual basis (1) does not
establish the elements of the offense, or (2) establishes the elements of the
offense but also establishes an affirmative justification defense. That
distinction decides his case. While only the former supports reversal, Ortiz
arguably shows only the latter.
      We first explore the relationship between offense elements and
affirmative defenses generally.
   D. Elements and Affirmative Defenses
      Hornbook criminal law distinguishes between offense elements and
affirmative defenses. See Paul H. Robinson, Criminal Law Defenses: A
Systematic Analysis, 82 Colum. L. Rev. 199, 291 n.164 (1982) (“The distinction

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                                  No. 17-11301
between offenses and defenses is perhaps the most basic distinction in criminal
law that lawyers . . . recognize.”). The distinction has constitutional
significance; while “the Due Process Clause requires the prosecution to prove
beyond a reasonable doubt all of the elements included in the definition of the
offense of which the defendant is charged[,] . . . [p]roof of the nonexistence of
all affirmative defenses has never been constitutionally required.” Patterson v.
New York, 432 U.S. 197, 210 (1977); see also Smith v. United States, 568 U.S.
106, 110 (2013) (“Where [an affirmative defense] ‘excuse[s] conduct that would
otherwise be punishable,’ but ‘does not controvert any of the elements of the
offense itself,’ the Government has no constitutional duty to overcome the
defense beyond a reasonable doubt.”) (quoting Dixon v. United States, 548 U.S.
1, 6 (2006)).
      As Patterson and Smith reflect, the offense-defense distinction is
complicated when a defense “controvert[s]” an offense element. Smith, 568 U.S.
at 110 (citing Dixon, 548 U.S. at 6); see also id. (“The State is foreclosed from
shifting the burden of proof to the defendant only ‘when an affirmative
defense . . . negate[s] an element of the crime.’”) (quoting Martin v. Ohio, 480
U.S. 228, 237 (1987) (Powell, J., dissenting)). Justification defenses such as
duress and necessity are not, typically, element-negating. See Dixon, 548 U.S.
at 6 (“The duress defense, like the defense of necessity . . . may excuse conduct
that would otherwise be punishable, but the existence of duress normally does
not controvert any of the elements of the offense itself.”).
      With that framework in mind, we first examine whether the factual basis
in this case establishes the elements of the offense. Then we assess whether it
might provide for an affirmative defense that negates an offense element.
Finally, we explore the implications of those results on whether the factual
basis was sufficient to support conviction.


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                                      No. 17-11301
   E. Offense Elements and the Justification Defense in This Case
       The elements of the offense are as follows:
       (1) that the defendant knowingly possessed a firearm, as charged
       in the indictment;

       (2) that before the defendant possessed that firearm, the defendant
       had been convicted in a court of a crime punishable by
       imprisonment for a term in excess of one year; and

       (3) that the firearm possessed traveled in and affected interstate
       commerce.

See 18 U.S.C. §§ 922(g)(1) and 924(a)(2); see also Fifth Circuit Pattern Jury
Instructions (Criminal Cases) § 2.43D (2015). Ortiz has conceded or waived his
challenge to the second and third elements. 1 He focuses only on the first
element—knowing possession.
       Ortiz hints that the brevity of his possession rendered it short of what is
required under the first element. The caselaw is against him. See United States
v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary
is immaterial.”); see also United States v. Matthews, 520 F.3d 806, 811 (7th Cir.
2008) (“[M]erely holding a firearm for a brief period of time is sufficient to
constitute possession within the meaning of section 922.”); United States v.
Jackson, 598 F.3d 340, 351 (7th Cir. 2010) (“[T]he legislative history of 18
U.S.C. § 922 indicates that Congress sought to prohibit even a felon’s brief
possession of a firearm.”).
       With that aside, the record plainly establishes that Ortiz knowingly
possessed a firearm. The Factual Resume and the PSR reflect that Ortiz, a
convicted felon, grabbed a Smith & Wesson that was manufactured out-of-




       1Ortiz’s brief concedes that he is a “convicted felon” and is silent on the interstate
commerce requirement. “[I]ssues not briefed are waived.” United States v. Narviz-Guerra,
148 F.3d 530, 538 (5th Cir. 1998).
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                                        No. 17-11301
state, ran while holding it, and then discarded it in a nearby trashcan.
Accordingly, he knowingly possessed it.
      The factual basis establishes all three elements of the offense.
      Ortiz insists that his possession was justified because he was acting in
self-defense or under duress. In this court, there are four showings a defendant
must make in order to prevail on a justification defense. 2 What matters,
however, is not whether Ortiz made these showings but whether the defense
is element-negating. We begin our analysis of that question with a case, United
States v. Parker, that predates the express recognition of the justification
defense in the felon-in-possession context. 566 F.2d 1304 (5th Cir. 1978).
      In Parker, this court examined a conviction under 26 U.S.C. § 5861, a
statute prohibiting knowing possession of unregistered firearms. Id. at 1305.
At trial, the defendant, Parker, admitted that he retrieved an unloaded
shotgun from another room after an aggressive acquaintance cut him on the
nose with a pocketknife. Id. When jury members asked whether they should
consider the reason for Parker’s shotgun possession, the trial judge responded,
“No.” Id. On appeal, Parker challenged that instruction and argued,




      2   This court “has established the four elements of the justification defense” as follows:
               (1) that defendant was under an unlawful and “present, imminent, and
               impending [threat] of such a nature as to induce a well-grounded
               apprehension of death or serious bodily injury”;
               (2) that defendant had not “recklessly or negligently placed himself in a
               situation in which it was probable that he would be [forced to choose the
               criminal conduct]”;
               (3) that defendant had no “reasonable legal alternative to violating the
               law; a chance both to refuse to do the criminal act and also to avoid the
               threatened harm”; and
               (4) “that a direct causal relationship may be reasonably anticipated
               between the [criminal] action taken and the avoidance of the
               [threatened] harm.”
          United States v. Harper, 802 F.2d 115, 117 (5th Cir. 1986) (quoting United States v.
          Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982)).
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                                 No. 17-11301
essentially, that in order to prove “knowing” possession, the government had
to prove that his possession was not justified.
      This court disagreed. Opining on the meaning of “knowing possession”
in this context, we explained:
       Defendant contends that ‘knowing’ possession means possession
       not justified by some innocent reason. In effect, defendant’s
       interpretation would require the Government to prove, as an
       element of the offense under § 5861(d), not only that defendant
       willfully possessed the weapon, but that he had no good reason to
       justify his possession. The plain reading of the statute and the
       decided cases are to the contrary. The Government need only
       show that defendant willfully and consciously possessed an item
       which he knew to be a firearm.

Id. at 1306. The court ultimately concluded that it “need not decide” whether
“a defendant may ever in defense allege some justification based on the
circumstances attending his illegal possession of an unregistered firearm”
because Parker was, factually, ineligible for it—he had continued possessing
the gun after the threat subsided. Id. (emphasis added).
      Despite Parker’s fact-bound conclusion, the case reinforces the
distinction between an “element of the offense” and a justification defense,
concluding that justification would not negate any element of the crime.
      On the same day Parker was argued, the same panel heard argument in
United States v. Hammons, 566 F.2d 1301 (5th Cir. 1978), vacated and
remanded on other grounds, 439 U.S. 810 (1978). In Hammons, the defendant
was convicted under 18 U.S.C. § 922(h) for illegally receiving a firearm as a
convicted felon. Id. at 1302. The defendant, as in Parker, argued that his
receipt was justified under the circumstances. Id.
      Again on the unique facts of the case, the court disagreed. Id. at 1304
(“We express no opinion on whether a different set of facts might support the
judicial creation of such a defense to § 922(h).”). The court in Hammons took

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                                       No. 17-11301
the opportunity to emphasize, however, that knowing and justified receipt (as
opposed to just knowing receipt) was not an element of the offense:
       Defendant does not contend that the Government must prove, as
       an element of the offense under § 922(h), that defendant received
       the gun without legal excuse . . . This argument as to a similar
       statute was rejected in [Parker], . . . [where we] held that the
       Government need only show that defendant willfully and
       consciously possessed what he knew to be a firearm.

Id. at 1303 & n.3.
       Parker and Hammond compel the conclusion that Ortiz satisfied the
knowing possession element when he grabbed the gun and ran with it.
Whether he did so under duress or in self-defense does not negate this offense
element.
       The case on which Ortiz relies for the contrary position, United States v.
Panter, 688 F.2d 268 (5th Cir. 1982), is unavailing. There, defendant Lester
Panter was convicted under the predecessor to § 922(g). Id. at 269. 3 On appeal,
he argued that “the jury should have been allowed to consider his self-defense
theory,” which the district court had failed to include in its instructions. Id.
       This court summarized the case’s remarkable facts, in the light most
favorable to Panter, 4 as follows:
       Panter was tending bar at the Roadrunner Lounge in Jackson
       County, Mississippi, on the evening of March 28, 1980. Bud Lins,
       a convicted murderer, was present and had been drinking heavily.
       He approached Panter after a brief argument between the two and
       stated: “Well, you ain’t done me right. I’m going to kill you.” Lins
       forthwith set out to keep this promise. He brandished a
       pocketknife and stabbed Panter in the abdomen. But Panter did
       not succumb easily; he began to fight back. He soon found himself


       3 See United States v. Leuschen, 395 F.3d 155, 157 (3d Cir. 2005) (describing 18 U.S.C.
§ 1202(a) as “a predecessor” of § 922(g)).
       4 “[B]ecause error is alleged in the jury instructions, we must view the facts in the

light most favorable to him.” Panter, 688 F.2d at 269 (citing United States v. Young, 464 F.2d
160, 164 (5th Cir. 1972)).
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      on the floor beneath his assailant, however, and he reached
      underneath the bar for a club that he knew was kept there. At this
      point providence intervened. Panter’s hand fell not upon the
      intended club, but rather upon a pistol. Three shots subdued Lins,
      who died the next day.

      Immediately after the shooting, Panter placed the pistol on the
      bar, where it was later found by the police. The gun belonged to an
      employee named Judy, who later married Panter. He never
      touched it either before or after the fateful encounter with Mr.
      Lins.

Id. at 269. Crucially, “Panter admitted possessing the gun for the short time
necessary to defend himself from Lins.” Id. at 270. He sought only to “convince
the jury that he possessed the gun only then and only in self-defense.” Id.
      Panter squarely presented the question that had escaped scrutiny in
Parker and Hammons: “whether the existence of exigent circumstances or an
emergency is a defense to a firearms possession charge.” Id. at 270–71. The
Panter court first noted that the statutory language “prohibits convicted felons
in absolute terms from possessing firearms,” with “no express exemption for
possession in self-defense or for any other emergency.” Id. at 271. But, the court
observed, “[W]e must be mindful that ‘Congress in enacting criminal statutes
legislates against a background of Anglo-Saxon common law . . . .’” Id. (quoting
United States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). And “[p]art of this
common law is the doctrine of self-defense.” Id.
      Accordingly, Panter concluded:
      [W]e reject the government’s argument that the proscription of
      § 1202(a)(1) is absolute and admits of no self-defense exception. We
      hold today that where a convicted felon, reacting out of a
      reasonable fear for the life or safety of himself, in the actual,
      physical course of a conflict that he did not provoke, takes
      temporary possession of a firearm for the purpose or in the course
      of defending himself, he is not guilty of violating § 1202(a)(1).


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                                       No. 17-11301
Id. at 271–72. As later cases have recognized, Panter stands for the “general
availability of common-law defenses” to a felon-in-possession charge. United
States v. Gant, 691 F.2d 1159, 1161 (5th Cir. 1982) (citing Panter, 688 F.2d
268); see also United States v. Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989)
(“[I]n [Panter], we created a self-defense exception to the offense of possession
of a pistol by a felon . . . .”). But Panter did not purport to disturb previous
authorities holding that justification does not negate any element of the
offense.
       For reasons explained below, we need not resolve today whether the
factual basis in this case contains a viable justification defense. Assuming
arguendo that it does, Ortiz’s conviction stands.
   F. Whether the Factual Basis Was Insufficient If It Established
      Justified Possession

       This court has not yet decided whether a district court errs in accepting
a guilty plea when the factual basis contains an affirmative defense that does
not negate any offense element. 5
       Our cases have generally approached post-plea sufficiency challenges by
comparing the factual basis to the offense elements. We have not taken it upon
ourselves, nor required district courts, to scan for possible affirmative defenses.
See, e.g., United States v. Crain, 877 F.3d 637, 645 (5th Cir. 2017) (“To
determine whether a defendant’s factual basis is sufficient to support his guilty
plea, the district court must examine each element of the offense charged.”)
(cleaned up); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“The



       5  We emphasize that this case is confined by the non-element-negating nature of the
justification defense. Parker, 566 F.2d at 1306; Hammons, 566 F.2d at 1303. We also
acknowledge the possibility that a justification defense might negate an offense element in a
unique and different context. See Dixon v. United States, 548 U.S. 1, 7 & n.4 (2006) (“[T]here
may be crimes where the nature of the mens rea would require the Government to disprove
the existence of duress beyond a reasonable doubt.”).
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                                  No. 17-11301
record must reveal specific factual allegations supporting each element of the
offense.”); Marek, 238 F.3d at 315 (directing trial courts to compare “(1) the
conduct to which the defendant admits with (2) the elements of the offense
charged in the indictment or information”).
      In United States v. Smith, the Second Circuit explicitly endorsed that
approach:
      [O]nce a defendant has admitted to all the elements of an offense,
      the district court is not required to exercise discretion under [Rule
      11] to reopen its inquiry into the factual basis for the guilty plea in
      order to explore a possible defense of justification, at least where
      justification negates none of the offense elements.

160 F.3d 117, 123 (2d Cir. 1998).
      Other circuits appear to do the same. See Dismuke v. United States, 864
F.2d 106, 107 (11th Cir. 1989) (“Nothing in Rule 11 requires the trial judge to
inform the defendant of every possible defense he may have.”); United States
v. Luna-Munoz, 234 F. App’x 762 (9th Cir. 2007) (“Rule 11 of the Federal Rules
of Criminal Procedure does not require a district court to inform the defendant
of potential justification defenses—or to rule them out—before accepting a
guilty plea.”); United States v. Lumpkins, 845 F.2d 1444, 1451 (7th Cir. 1988)
(“The defendant’s position in this case would go too far toward converting plea
hearings into law school seminars on possible defenses and mini-trials on
questions of factual guilt.”); see also 1A Charles Alan Wright, et al., Federal
Practice and Procedure § 179 (4th ed. 2011) (“There need not be a factual basis
for something that is not an element of the offense charged.”)
      We follow their lead. Even if the factual basis here revealed that Ortiz’s
possession were justified, it nonetheless established that his conduct satisfied
every element of the offense. Accordingly, the district court did not err in
accepting the plea.
      AFFIRMED.
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