                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2068
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Jevonne Martell Coleman

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                   ____________

                            Submitted: January 17, 2020
                               Filed: June 8, 2020
                                 ____________

Before KELLY, MELLOY, and KOBES, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

      Jevonne Coleman pleaded guilty to being a felon in possession of a firearm
under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1 accepted his plea and

      1
       The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa, adopting the report and recommendation of the Honorable Mark
sentenced him to 108 months in prison. After sentencing, the Supreme Court decided
that, to be convicted under § 922(g), the defendant must have known “he belonged
to the relevant category of persons barred from possessing a firearm.” Rehaif v.
United States, 139 S. Ct. 2191, 2200 (2019). This requires that Coleman knew he
was a felon when he possessed the firearm in this case. Coleman now challenges the
validity of his plea and conviction based on Rehaif. Because we find no basis for
reversal, we affirm.

                                          I.

       On May 10, 2018, the grand jury indicted Coleman with one count of being a
felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The
indictment did not allege that Coleman knew he had a prior conviction punishable by
more than one year in prison. Coleman subsequently filed a notice of intent to plead
guilty. At the change-of-plea hearing, the magistrate judge explained that having
been convicted of a crime punishable by more than one year in prison was an element
of the offense. Coleman admitted that this element was established. However,
Coleman was not told that knowing of his felon status at the time of possession was
also an element of the offense, and he did not acknowledge that this element was
satisfied. After Coleman pleaded guilty, the magistrate judge recommended that the
district court accept Coleman’s plea. No objections were filed, and the district court
accepted the plea. The court later sentenced Coleman and entered a judgment of
conviction on May 14, 2019.

       On June 21, 2019, the Supreme Court decided Rehaif, which clarified the scope
of § 922(g). This circuit had previously held that § 922(g)(1) required the
government to prove three elements: “(1) previous conviction of a crime punishable
by a term of imprisonment exceeding one year, (2) knowing possession of a firearm,


Roberts, United States Magistrate Judge for the Northern District of Iowa.

                                         -2-
and (3) the firearm was in or affecting interstate commerce.” United States v.
Montgomery, 701 F.3d 1218, 1221 (8th Cir. 2012). Rehaif held that the government
must also prove a fourth element: that the defendant “knew he belonged to the
relevant category of persons barred from possessing a firearm.” Rehaif, 139 S. Ct.
at 2200.

                                            II.

       On appeal, Coleman argues that Rehaif establishes two errors in his guilty plea.
First, he contends that because he was not informed of the fourth essential element
of a § 922(g) offense, his plea is constitutionally invalid. Second, he argues his plea
violated Federal Rule of Criminal Procedure 11 because the district court did not
inform him of the nature of the charge to which he was pleading under
Rule 11(b)(1)(G) or determine that there was a factual basis for the plea under
Rule 11(b)(3).

       Coleman did not raise these arguments below so we review for plain error. See
United States v. Jawher, 950 F.3d 576, 579 (8th Cir. 2020). Coleman must show
(1) an error, (2) that is plain, and (3) that affects his substantial rights. United States
v. Olano, 507 U.S. 725, 732 (1993). We will exercise our discretion to correct such
an error only if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (cleaned up).

                                            A.

       Coleman satisfies the first two parts of the Olano plain-error test for both
alleged errors. Although the Supreme Court decided Rehaif after Coleman’s plea and
conviction, its holding applies here because it clarified what § 922(g) “has meant
continuously since the date when it became law.” See Rivers v. Roadway Express,
Inc., 511 U.S. 298, 313 n.12 (1994). Therefore, Coleman’s plea is constitutionally

                                           -3-
invalid because he did not understand the essential elements of the offense to which
he pleaded guilty. In other words, his plea was neither knowing nor intelligent
because he did not have “real notice of the true nature of the charge against him, the
first and most universally recognized requirement of due process.” See United States
v. Ochoa-Gonzalez, 598 F.3d 1033, 1036–38 (8th Cir. 2010) (quoting Bousley v.
United States, 523 U.S. 614, 618 (1998)). Coleman’s plea also violated Rule 11
because the district court did not advise him of the knowledge-of-status element
established by Rehaif and did not examine the record to determine whether there was
a factual basis for finding such knowledge. See Fed. R. Crim. P. 11(b)(1)(G), (b)(3);
Jawher, 950 F.3d at 579. Because we measure whether an error is plain based on the
law at the time of appeal, both errors are now plain under Rehaif. See Jawher, 950
F.3d at 579.

                                           B.

       The government argues that Coleman does not satisfy the third part of
plain-error review because he cannot show that either the constitutional error or the
Rule 11 error affected his substantial rights. The Supreme Court has explained that,
“in the ordinary case,” an error affects the defendant’s substantial rights if he or she
demonstrates “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016) (cleaned up). Coleman contends that he need not make this
showing to gain relief for his constitutionally invalid plea. He asserts that this error
“affects substantial rights as a per se matter” and thus constitutes structural error that
requires automatic reversal. He concedes, however, that he must still satisfy the
substantial-rights prong to gain relief for the Rule 11 error. See United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).

       Coleman relies on our decision in Ochoa-Gonzalez to argue that a
constitutionally invalid plea requires reversal without determining its effect on his

                                           -4-
substantial rights. In Ochoa-Gonzalez, the defendant argued on direct appeal that her
guilty plea was invalid in light of Flores-Figueroa v. United States, 556 U.S. 646
(2009), which held that, to be convicted of aggravated identity theft, “the defendant
must know that the identity stolen belongs to a real person.” Ochoa-Gonzalez, 598
F.3d at 1036. Applying plain-error review, we examined Ochoa-Gonzalez’s plea
colloquy and decided it showed that (1) neither her counsel, nor the government, nor
the district court understood that this additional essential element applied and
(2) Ochoa-Gonzalez did not know the identity she had stolen “actually belonged to
somebody else.” Id. at 1037–38. Thus, we determined the district court had
committed plain error by accepting her constitutionally invalid guilty plea. Id. at
1038. We also decided this error “affected her substantial rights as well as the
fairness and integrity of the judicial proceedings,” and reversed her conviction. Id.

        Contrary to Coleman’s argument, however, Ochoa-Gonzalez did not hold that
the failure to advise the defendant of an essential element requires “per se reversal,”
even when that failure renders the plea unconstitutional. Rather, Ochoa-Gonzalez
applied all four parts of plain-error review and found each was satisfied given the
proceedings in the district court. Crucial to our holding was that Ochoa-Gonzalez’s
plea colloquy showed the additional element announced in Flores-Figueroa was not
in fact satisfied in her case. She expressly told the district court that she did not know
the passport number she had used “actually belonged to somebody else.” Id. at 1037.
There was thus “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.”2 See Molina-Martinez, 136 S. Ct. at 1343.




      2
       In this way, Ochoa-Gonzalez is similar to a Fourth Circuit case cited by
Coleman, where the court vacated the defendant’s guilty plea on plain-error review
because the plea colloquy established that he lacked the requisite knowledge of the
conspiracy to which he pleaded guilty to joining. See United States v. Mastrapa, 509
F.3d 652, 660–61 (4th Cir. 2007).

                                           -5-
       Nevertheless, Coleman urges us to classify the constitutional error in this case
as structural. The structural-error doctrine applies to a “narrow class of
errors—defects ‘affecting the framework within which the trial proceeds, rather than
simply an error in the trial process itself.’” Becht v. United States, 403 F.3d 541, 547
(8th Cir. 2005) (quoting Neder v. United States, 527 U.S. 1, 8 (1999)). Structural
errors “defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S.
279, 309 (1991). The Supreme Court has indicated that there “may be a special
category of forfeited errors that can be corrected regardless of their effect on the
outcome.” Olano, 507 U.S. at 735. But we have explained “it is an open question”
in this circuit “whether an unpreserved structural error automatically satisfies the
third prong of the plain-error test.” United States v. Picardi, 739 F.3d 1118, 1123 n.3
(8th Cir. 2014) (citing Puckett v. United States, 556 U.S. 129, 140–41 (2009)). For
purposes of this case, however, we will assume without deciding that Coleman would
satisfy the third part of plain-error review if he could demonstrate that his
constitutionally invalid plea is structural error.

       The Supreme Court has found structural error “only in a very limited class of
cases.” Neder, 527 U.S. at 8 (cleaned up). Neither the Supreme Court nor this court
has ever identified a constitutionally invalid guilty plea as structural error.3 The
“purpose of the structural error doctrine is to ensure insistence on certain basic,
constitutional guarantees that should define the framework of any criminal trial.”
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017). Yet the Court has made
clear that “most constitutional errors can be harmless.” Fulminante, 499 U.S. at 306.
Indeed, “‘if the defendant had counsel and was tried by an impartial adjudicator, there


      3
      The circuit courts that have considered the issue are split, with the Fifth, Sixth,
and Tenth Circuits holding that a constitutionally invalid plea is not structural error,
United States v. Trujillo, — F.3d —, No. 19-2057, 2020 WL 2745526, at *5 (10th
Cir. May 27, 2020); United States v. Hicks, 958 F.3d 399 (5th Cir. 2020); Ruelas v.
Wolfenbarger, 580 F.3d 403, 410–11 (6th Cir. 2009), while the Fourth Circuit holds
otherwise, United States v. Gary, 954 F.3d 194, 207–08 (4th Cir. 2020).

                                          -6-
is a strong presumption that any other errors that may have occurred’ are not
‘structural errors.’” United States v. Marcus, 560 U.S. 258, 265 (2010) (quoting Rose
v. Clark, 478 U.S. 570, 579 (1986)).

       With these principles in mind, we hold that Coleman’s constitutionally invalid
plea is not structural error. Structural errors defy analysis by normal harmless-error
standards because their consequences “are necessarily unquantifiable and
indeterminate,” so reversal is automatic. United States v. Gonzalez-Lopez, 548 U.S.
140, 150 (2006). The error at issue here, by contrast, does not defy harmless-error
standards and the resulting harm is not indeterminate. See, e.g., Jawher, 950 F.3d at
580–81 (deciding, in a post-Rehaif challenge to a § 922(g) conviction, that the
defendant satisfied all four parts of plain-error review); United States v. Davies, 942
F.3d 871, 874 (8th Cir. 2019) (same); cf. Neder, 527 U.S. at 8–10 (holding that a jury
instruction that omits an essential element of the offense is not structural error).4
Therefore, even in the context of a constitutionally invalid plea based on Rehaif, a


      4
        The cases Coleman relies on do not require a different result. Bousley
involved a collateral challenge to a guilty plea; it did not discuss plain error or
structural error. 523 U.S. at 618. Henderson v. Morgan involved a collateral attack
on a state-court conviction, where the prisoner argued his guilty plea was involuntary.
426 U.S. 637, 638–39 (1976). That case did not discuss plain error or structural error.
Boykin v. Alabama concerned a challenge to the voluntariness of a guilty plea where
“the judge asked no questions of petitioner concerning his plea, and petitioner did not
address the court.” 395 U.S. 238, 239 (1969). Boykin also did not apply plain-error
review or discuss structural error. Finally, Dominguez Benitez held that, on plain-
error review, a defendant must demonstrate prejudice to gain reversal for a Rule 11
violation. 542 U.S. at 83. In a footnote, the Court contrasted Rule 11 errors with the
error at issue in Boykin and suggested that where there is “no evidence that a
defendant knew of the rights he was putatively waiving” by pleading guilty, the
conviction must be reversed without regard to prejudice. Id. at 84 n.10 (citing
Boykin, 395 U.S. at 243). We are reluctant to give this dicta from Dominguez
Benitez the weight Coleman urges because the Court did not engage in any analysis
of the structural-error doctrine.

                                         -7-
defendant satisfies plain-error review only by showing that the error affected his or
her substantial rights.

                                          C.

       Coleman alternatively argues that if we decline to treat his constitutionally
invalid plea as structural error, he can still fulfill his burden under the substantial-
rights prong of plain-error review. This requires that he demonstrate “a reasonable
probability that, but for the error, he would not have entered the plea.” See Jawher,
950 F.3d at 579 (cleaned up); accord United States v. Williams, 946 F.3d 968, 973
(7th Cir. 2020) (requiring the same showing in the context of a constitutionally
invalid plea based on Rehaif).

       Coleman has not made this showing for either the constitutional error or
Rule 11 error. To begin, he does not argue that he would not have pleaded guilty had
he known of Rehaif. He instead suggests, as an “example,” that he “may have
believed his [prior felony] convictions were expunged or his rights restored.” But he
does not assert that he in fact had this belief or was otherwise unaware of his felon
status when he possessed the firearm in this case. Moreover, evidence in the record
indicates Coleman knew he was a convicted felon at the relevant time. Portions of
the presentence investigation report, to which Coleman did not object, show he had
previously been sentenced to multiple terms of imprisonment exceeding one year.
Given these circumstances, Coleman has not shown a reasonable probability that he
would not have pleaded guilty had he known of Rehaif. See United States v. Welch,
951 F.3d 901, 907 (8th Cir. 2020) (finding that, following Rehaif, the defendant could
not show his substantial rights were affected because he had previously “received and
served several prison sentences longer than one year for felony convictions”); United
States v. Seltzer, 789 F. App’x 559, 561 (8th Cir. 2020) (same); see also Rehaif, 139
S. Ct. at 2198 (doubting that the government’s “obligation to prove a defendant’s



                                          -8-
knowledge of his status will be . . . burdensome” because “knowledge can be inferred
from circumstantial evidence”).

      Because Coleman has not shown that either the constitutional error or the
Rule 11 error affected his substantial rights, he is not entitled to relief on plain-error
review. Accordingly, we affirm the judgment of the district court.
                       ______________________________




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