              Case: 18-10079     Date Filed: 01/17/2019    Page: 1 of 7


                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-10079
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket Nos. 9:16-cv-80862-DMM,
                             9:14-cr-80009-DMM-1


MARK RICHARD HILLSTROM,

                                                                Petitioner-Appellant,

                                       versus
UNITED STATES OF AMERICA,
                                                               Respondent-Appellee.

                          __________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          _________________________

                                 (January 17, 2019)

Before WILSON, BRANCH, and HULL, Circuit Judges.

PER CURIAM:

      Mark Hillstrom appeals the denial of his motion to vacate his sentence under

28 U.S.C. § 2255. After pleading guilty to transmitting a threat in interstate
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commerce, 18 U.S.C. § 875(c), Hillstrom now argues that the indictment against

him on that charge was insufficient because it did not allege the requisite mens rea.

Because we find that any such defect in the indictment was rendered harmless by

the facts he admitted when he pleaded guilty, we affirm the denial of relief.

       A federal grand jury indicted Hillstrom in 2014 on one count of violating 18

U.S.C. § 875(c)1 when he “did knowingly and intentionally transmit in interstate

commerce a communication over the internet, which communication contained a

threat to injure the person of another, specifically ‘M.S.’” Hillstrom later pleaded

guilty pursuant to a written plea agreement that contained an appeal waiver. He

also signed a proffer explaining the factual basis for his guilty plea, stating that he

had posted the following entry on JAABlog, “a blog devoted to coverage of the

Broward County courts and judiciary”:

       Rouge asa will die wrote: by the end of this year a rouque asa will be
       executed for his abuse of prosecutorial power that hurt my kids and
       ruined my life. His kids will be spared but he has too much power to
       be left to his sma minded sick decptions to get convictions and further
       his career. He will be accompained by current and former judges who
       abused their judcial power to destroy good lives and decent people.
       [M.S.] goes first.




1
  “Whoever transmits in interstate or foreign commerce any communication containing any
threat to kidnap any person or any threat to injure the person of another, shall be fined under this
title or imprisoned not more than five years, or both.”

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The proffer further stated that he “knowingly posted the threat, which was a true

threat to injure M.S., after years of disagreement with the Broward State

Attorney’s office, of which M.S. is the head.”

      During the change-of-plea hearing, the magistrate judge reviewed the plea

agreement and appeal waiver; Hillstrom acknowledged that he had read it, signed

it, and discussed it with his lawyer. Upon questioning, Hillstrom said he

understood the agreement and had not been threatened into accepting it. He agreed

that he was pleading guilty of his own free will because he was in fact guilty. He

further stated that he had read, signed, and discussed with his lawyer the factual

proffer, and that he assented to its factual basis for the plea. The magistrate judge

found that Hillstrom entered his plea knowingly and voluntarily, and recommended

that the district court accept the guilty plea.

      Before the district court, Hillstrom’s counsel made no objection to the report

and recommendation of the magistrate judge. The district court accepted the

recommendation, entered a judgment of conviction, and imposed a sentence of 10

months’ imprisonment followed by 3 years’ supervised release. Hillstrom later

violated the terms of his supervised release and was sentenced to time served and a

new period of 24 months’ supervised release, which he is currently serving.

      Hillstrom did not file a direct criminal appeal. More than a year after his

conviction, the U.S. Supreme Court decided Elonis v. United States, 135 S. Ct.


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2001 (2015), which clarified the necessary elements for a conviction under 18

U.S.C. § 875(c). In 2016, Hillstrom moved through appointed counsel to vacate his

sentence under 28 U.S.C. § 2255. In that motion, Hillstrom argued that the conduct

to which he pleaded guilty is not a crime because, under Elonis, the government

failed to allege the requisite mens rea in the indictment.

      The magistrate judge found that Elonis applied retroactively, but that

Hillstrom’s guilty plea was nonetheless valid because he “admitted to facts

demonstrating that he knowingly transmitted a threatening communication and

specifically intended for such communication to be a threat as required under

§ 875(c).” After Hillstrom filed objections, the district court agreed with the

magistrate judge, adding that any claim for relief based on an insufficient factual

basis for the plea was procedurally barred by Hillstrom’s failure to file a direct

appeal. The court denied the § 2255 motion and denied a certificate of

appealability. Hillstrom appealed, and a judge of this Court granted a certificate of

appealability on “[w]hether, under 28 U.S.C. § 2255, Hillstrom is entitled to vacate

his guilty plea, for a violation of 18 U.S.C. § 875(c), pursuant to Elonis.” We now

consider that question.

      When evaluating the denial of a § 2255 motion, we review legal conclusions

de novo and factual findings for clear error. Lynn v. United States, 365 F.3d 1225,

1232 (11th Cir. 2004). A prisoner filing his first § 2255 motion is entitled to relief


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if he establishes that his conviction or sentence was imposed in violation of the

Constitution or laws of the United States, so long as that motion is not untimely or

otherwise procedurally barred. 28 U.S.C. § 2255(a), (f). Hillstrom argues that his

indictment was constitutionally insufficient under Elonis because it failed to allege

that he subjectively knew his communication contained a threat. 2 The problem for

Hillstrom, however, is that any Elonis error in his indictment was rendered

harmless by the factual proffer that accompanied his guilty plea.

       In Elonis, the Supreme Court instructed that, although the text of § 875(c)

does not specify any particular mental state, we must read a mens rea requirement

into the statute in order to avoid criminalizing otherwise innocent conduct. 135 S.

Ct. at 2008, 2010. Thus, a conviction under § 875(c) requires proof that the

defendant knew that his communication contained a threat. Id. at 2011.

Accordingly, a § 875(c) indictment that fails to allege the defendant’s mens rea or

facts from which his intent may be inferred is constitutionally insufficient. United

States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015) (applying Elonis on direct

appeal when the defendant had preserved the issue in the district court).

       We assume, but do not decide, that the new rule announced in Elonis is

retroactive to convictions that are already final because it appears to be the kind of

2
 Before Elonis, our Circuit had required only objective intent under § 875(c): that “a reasonable
person would construe [the communication] as a serious expression of an intention to inflict
bodily harm.” United States v. Alaboud, 347 F.3d 1293, 1297 (11th Cir. 2003) (quoting United
States v. Callahan, 702 F.2d 964, 965 (11th Cir. 1983)).

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substantive rule that “narrow[s] the scope of a criminal statute by interpreting its

terms.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). We further assume that

Hillstrom had cause for procedurally defaulting this claim, given that our precedent

would have barred him from asserting it on direct appeal, in light of his guilty plea

and appeal waiver. See United States v. Brown, 752 F.3d 1344, 1354 (11th Cir.

2014) (explaining that an unconditional guilty plea waives all non-jurisdictional

defects in an indictment, including the omission of a mens rea element); but see

Bousley v. United States, 523 U.S. 614, 622–23 (1998) (explaining that failure to

raise a then-futile legal argument on direct review does not establish cause for a

procedural default). Further, we assume that there actually was an Elonis problem

with Hillstrom’s indictment.

      Even with the benefit of all of these assumptions, Hillstrom is not entitled to

vacatur under § 2255 because any error was harmless in light of the conduct he

admitted in his factual proffer. That statement, signed and sworn, averred that

Hillstrom “knowingly posted the threat.” To the extent the indictment failed to

allege that Hillstrom subjectively knew that his communication contained a threat,

see Elonis, 135 S. Ct. at 2011, the proffer supplies the factual basis for inferring

that scienter. See Martinez, 800 F.3d at 1295. In characterizing the interstate

communication he knowingly posted as a “threat,” Hillstrom freely and voluntarily

admitted all of the elements of the offense under § 875(c). Any error in his


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indictment was therefore harmless. To put it another way, Hillstrom has not

established that he suffered any actual prejudice from the error, nor has he argued

that he is actually innocent of the charge. See Bousley, 523 U.S. at 622. The denial

of Hillstrom’s § 2255 motion is therefore

      AFFIRMED.




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