           Case: 19-11869   Date Filed: 06/01/2020    Page: 1 of 5



                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11869
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:17-cr-00481-WKW-WC-1



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                 versus

JAMAL AIKEEM HUTCHINSON,

                                                     Defendant - Appellant.

                      ________________________

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

                             (June 1, 2020)




Before WILSON, MARTIN, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Jamal Hutchinson appeals his conviction and 120-month sentence after

pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2). Briefly stated, Hutchinson contends his conviction

should be vacated in the light of the Supreme Court’s decision in Rehaif v. United

States, 139 S. Ct. 2191 (2019). No reversible error has been shown; we affirm.



                                          I.



      On appeal, Hutchinson first contends his indictment was defective because

the indictment (1) failed to allege that Hutchinson knew he was a convicted felon

when he possessed the firearm -- an essential element of a section 922(g) offense

as recognized by the Supreme Court in Rehaif, and (2) failed to cite to 18 U.S.C. §

924(a)(2). Hutchinson contends his indictment contains a jurisdictional defect

warranting de novo review.

      Hutchinson’s challenge to his indictment is foreclosed by this Court’s

binding precedent. That Hutchinson’s indictment is defective for having omitted




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the knowledge-of-status element recognized in Rehaif is undisputed.1 We have

concluded, however, that an indictment’s failure to allege the knowledge-of-status

element or to cite to section 924(a)(2), constitutes a defect that is non-

jurisdictional. See United States v. Moore, 954 F.3d 1322, 1336-37 (11th Cir.

2020). By entering an unconditional guilty plea, Hutchinson has waived all non-

jurisdictional defects in his indictment. See United States v. Brown, 752 F.3d

1344, 1347 (11th Cir. 2014).



                                                 II.



       Hutchinson next contends that his guilty plea was unknowing and

involuntary because, at the plea colloquy, the magistrate judge failed to advise

Hutchinson that the government was required to prove beyond a reasonable doubt

that Hutchinson knew he was a convicted felon when he possessed the firearm. 2




1
  The indictment in this case alleged that Hutchinson, “having been previously convicted in a
court of a crime punishable by imprisonment for a term in excess of one year . . . did knowingly
possess a firearm and ammunition that traveled in and affected interstate commerce,” in violation
of 18 U.S.C. § 922(g)(1). The indictment listed four prior Alabama felony convictions: burglary,
promoting prison contraband, and two theft convictions.
2
  Hutchinson also seeks to challenge the sufficiency of the factual basis for his plea. Hutchinson
first raised this issue in his reply brief; that issue is thus not properly before us in this appeal.
See United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (“Arguments raised for the
first time in a reply brief are not properly before the reviewing court.”).
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       Because Hutchinson challenges the voluntariness of his plea for the first

time on appeal, we review this issue only for plain error. See United States v.

Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005) (when not raised in the district

court, both constitutional objections to a plea and objections based on Fed. R.

Crim. P. 11 are subject to plain error review); see also United States v. Reed, 941

F.3d 1018, 1020 (11th Cir. 2019) (reviewing a newly-available Rehaif argument

for plain error).

       “To establish plain error, a defendant must show there is (1) error, (2) that is

plain, and (3) that affects substantial rights.” Moriarty, 429 F.3d at 1019. To show

that a plain error affected substantial rights in the context of a guilty plea, a

defendant “must show a reasonable probability that, but for the error, he would not

have entered the plea.” See United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004). We may consider the entire record in determining whether an error

affected a defendant’s substantial rights. United States v. Vonn, 535 U.S. 55, 59

(2002).

       That an error occurred during Hutchinson’s plea colloquy and that the error

was made plain by Rehaif is undisputed. Thus, we address only whether

Hutchinson has satisfied his burden of showing that the error affected his

substantial rights. We conclude that he has not.




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      The record sufficiently evidences that Hutchinson was aware of his status as

a convicted felon when he possessed the firearm. According to the undisputed

facts in the Presentence Investigation Report, Hutchinson had four prior felony

convictions -- each of which resulted in a sentence exceeding one year.

Hutchinson also testified at the plea colloquy that he had been convicted of at least

one of the four felonies listed in the indictment. Cf. Reed, 941 F.3d at 1021

(concluding the record established adequately that defendant knew of his

convicted-felon status given defendant’s 8 prior felony convictions, defendant’s

testimony that he “knew” he was not supposed to have a gun, and that defendant

had served 18 years in prison before his arrest for possessing a firearm). We also

note that Hutchinson never claims on appeal that he was actually unaware he was a

convicted felon when he possessed the firearm.

      On this record, Hutchinson cannot demonstrate -- nor does he contend -- that

he would not have pleaded guilty but for the magistrate judge’s failure to advise

him of the knowledge-of-status element. Moreover, Hutchinson did benefit from

his decision to plead guilty: in exchange for Hutchinson’s guilty plea for being a

felon in possession of a firearm, the government moved to dismiss Counts 1 and 2

of the indictment (charging Hutchinson with Hobbs Act Robbery and with

brandishing a firearm during a crime of violence).

      AFFIRMED.


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