     Case: 10-10148 Document: 00511418401 Page: 1 Date Filed: 03/21/2011




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

                                                 FILED
                                                                           March 21, 2011

                                       No. 10-10148                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

SKILAR WHITTNEY BUTLER

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                       USDC No. 2:09-cr-00053-J-BB-ALL


Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Skilar Whittney Butler (“Butler”) appeals his guilty
plea conviction of being a dishonorable dischargee in possession of firearms. We
determine that the Government was not required to prove, as an element of
18 U.S.C. § 922(g), that Butler knew he had been dishonorably discharged from
the Air Force at the time of the offense. We also hold that Butler’s discharge was
effective when his DD-214 was ready for delivery. We affirm.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-10148

                            F ACTS & P ROCEEDINGS
      Butler was charged with two counts of being a dishonorable dischargee in
possession of firearms in violation of 18 U.S.C. §§ 922(g)(6) and 924(a)(2) (Counts
Two and Four), two counts of being a felon in possession of firearms in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Counts One and Three), and one count
of wearing an Armed Forces uniform without authority in violation of 18 U.S.C.
§ 702 (Count Five). Pursuant to a conditional guilty plea agreement (“plea
agreement”), Butler pled guilty to Count Two of the indictment and the
Government agreed to dismiss the remaining counts.           The plea agreement
reserved Butler’s right to appeal the portion of the district court’s denial of his
Motion to Dismiss related to the question of whether § 922(g) has a mens rea
requirement as to prohibited status.
      An Air Force court martial convicted Butler of theft of government
property in December 2007, sentenced him to three years of confinement, and
ordered his dishonorable discharge from the military. Butler appealed this
conviction and sentence.       After Butler was paroled and released from
confinement on September 11, 2008, he returned to his home and secured
civilian employment. At that time he was on appellate leave status pending
final dishonorable discharge from the military.
      On February 2, 2009, the final forum for review of Butler’s sentence, the
Court of Appeals for the Armed Forces, denied Butler’s petition for review. A
DD-214 certificate of release from the U.S. Air Force (“DD-214”) was issued for
Butler on March 6, 2009. This DD-214 was not sent to Butler because the Air
Force incorrectly believed it did not have a valid mailing address for him. On
August 5, 2009, Butler’s civilian employer informed police that Butler was
carrying firearms and wearing a military uniform. Acting on this report, the
next day Federal Bureau of Investigation agents went to Butler’s workplace.
There, Butler admitted that he was armed with a .40-caliber pistol.             He

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                                       No. 10-10148

explained that he had not received his DD-214 and was thus unaware of a bar
to his firearms possession. On August 10, 2009, agents informed Butler that he
was prohibited from carrying or owning a firearm because of his dishonorable
discharge from the military. Butler then turned over six additional firearms to
the agents. The agents arrested Butler.
       After Butler pled guilty to the Count Two charge of possession of firearms
in violation of § 922(g), the court sentenced Butler to thirty-seven months of
imprisonment and three years of supervised release. This appeal followed.
                                         A NALYSIS
       1. Whether Butler was actually discharged
       Butler argues that the factual basis of the guilty plea was legally
insufficient because it did not establish that Butler was actually discharged at
the time of the offense. We reject this argument.
       Generally, “a challenge to the legal sufficiency of an undisputed factual
basis . . . is a straightforward question of law, reviewed de novo.” United States
v. Kessee, 185 F. App’x 337, 339 (5th Cir. 2006) (citing United States v. Marek,
238 F.3d 310, 314 (5th Cir. 2001) (en banc); United States v. Reasor, 418 F.3d
466, 474 (5th Cir. 2005)). But, where a defendant does “not raise a challenge to
the adequacy of the factual basis underlying her guilty plea in the district court,
either by making her plea conditional pursuant to Rule 11(a)(2) or by objecting
thereafter, such as at her sentencing,” this court reviews for plain error. Marek,
238 F.3d at 315. The outcome of this case is not controlled by the standard of
review we use because the Government’s argument prevails regardless. We will
thus review the sufficiency of the factual basis of the guilty plea de novo.1


       1
         It appears that plain error review would otherwise be warranted. Butler voided his
objections to the Presentence Report (“PSR”) Addendum by stating at the sentencing hearing
that he had no objections to the PSR. Moreover, the conditional guilty plea only reserved his
right to challenge the district court’s denial of his motion to dismiss Counts Two and Four of
the indictment for failing to allege Butler knew of his prohibited status under § 922(g). The

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      Applying a de novo standard of review, we determine that Butler was
discharged at the time of his arrest because his discharge documents were ready
for delivery and Butler had notice of his discharge. The statute governing
discharge of military personnel, both punitive and administrative, provides:
      A member of an armed force may not be discharged or released from active
      duty until his discharge certificate or certificate of release from active
      duty, respectively, and his final pay or a substantial part of that pay, are
      ready for delivery to him or his next of kin or legal representative.
10 U.S.C. § 1168(a) (emphasis added). The general prerequisites for discharge
are “delivery of a valid discharge certificate . . . a final accounting of pay made”
and “the ‘clearing’ process required under appropriate service regulations.”
United States v. King, 27 M.J. 327, 329 (C.M.A. 1989); see also United States v.
Howard, 20 M.J. 353, 354 (C.M.A. 1985) (rejecting Government’s argument that
the military judiciary retained personal jurisdiction over a personnel member
even after the delivery of his discharge certificate, explaining “[d]ischarge is
effective upon delivery of the discharge certificate” because that delivery “shows
that the transaction is complete, that full rights have been transferred, and that
the consideration for the transfer has been fulfilled”).          But, the delivery
requirement is not absolute.       The purpose of the statute’s documentation
requirement, as recounted in Hamon v. United States, is “to ensure adequate
administration of veterans’ disability claims and to hasten discharge of those
uncooperative in the process.” 10 Cl. Ct. 681, 683 (Cl. Ct. 1986). Indeed, the
Code of Federal Regulations specifically provides, “DD Forms 214 are not
intended to have any legal effect on termination of the member’s service.” 32
C.F.R. § 45.3(b).
      Military case law provides several scenarios when discharge can be
effected without actual delivery of a DD-214.         First, actual delivery is not


issue of whether he had not actually been discharged at the time of the offense was not
encompassed in this reservation.

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necessary when the discharge documents are ready for delivery, and the service
member had notice of the discharge. See Earl v. United States, 27 Fed. Cl. 36,
36 (Fed. Cl. 1996) (finding discharge occurred without delivery of the DD-214
where plaintiff had notice since “following the completion of his appellate review,
plaintiff received notification at Ft. Leavenworth that execution of his bad
conduct discharge had been ordered” and “[t]hat same day, plaintiff received
notification that his compensation had been terminated due to the finalization
of his case”). Similarly, when a service member’s discharge documents are ready
for delivery and both parties understand the situation, delivery is not crucial.
See Hamon, 10 Cl. Ct. at 682, 684 (characterizing situations where there had
been a procedural error or where plaintiff was not aware of his status as
exceptions to the general rule that physical delivery is not necessary and finding
correspondence between Hamon and the Coast Guard regarding procedures for
Hamon to receive a DD-214 indicated that Hamon understood his discharged
status).
       In Butler’s case, actual delivery was not necessary to effect Butler’s
discharge because it is undisputed that the DD-214 was ready for delivery, and
Butler could not reasonably have misunderstood his status.2                     Butler was
convicted by general court martial and sentenced to dishonorable discharge from
the military nearly two years prior to the date of the instant offense.3                    A
complete forfeiture of his military pay took effect on the date of his sentence.
The final forum for appellate review of his conviction had denied his petition for
review and affirmed his discharge, more than six months before his firearms


       2
        The stipulation in the factual basis of the guilty plea that the DD-214 “was issued”
indicates that it was ready for delivery.
       3
          The court strikes Butler’s allegations that are outside the record on appeal, i.e.
Butler’s claim that the Air Force’s “Virtual Military Personnel Flight” system reported he was
still a service member on August 4, 2009, and that he was eligible for military benefits until
September 2009.

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                                      No. 10-10148

possession offense.4 Because his final appeal had been denied, he could no
longer reasonably believe he had appellate leave status. This level of notice was
nearly equivalent to the notice provided to the plaintiff in Earl, in which the
soldier was notified “that execution of his bad conduct discharge had been
ordered” and “that his compensation had been terminated due to the finalization
of his case.” 27 Fed. Cl. at 36. In light of Butler’s notice and understanding of
his status, an administrative delivery problem should not have kept Butler on
duty indefinitely.
       We disagree with Butler’s argument that knowledge of the date of his
discharge was necessary. The language of the statute does not require actual
delivery, and legislative history reveals that the purpose of the statute is to ease
the military’s administrative burden associated with discharges.                  Hinging
Butler’s status on whether he knew the exact date on which his DD-214 was
issued would be inconsistent with the text and purpose of the statute. Even in
cases where the service members had knowledge of their dates of discharge, this
awareness was coincidental, and not paramount, to the courts’ decisions. See
United States v. Harmon, 63 M.J. 98, 102 (C.A.A.F. 2006) (“The DD Form 214 in
conjunction with the NAVMC 11060 Form, clearly indicated the command’s
intent to discharge Appellant at 2359 hours on May 17, 2001.”); Hamon, 10 Cl.
Ct. 681, 684 (the Coast Guard and the plaintiff had agreed upon a date of
discharge).




       4
         Though the record does not specifically provide that Butler received notice of the
denial, the rejection of his appeal was publicly available. See United States v. Butler, No.
09-0086/AF, 67 M.J. 254 (Feb. 2, 2009).

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       2. Whether a § 922(g)(6) offense has a knowledge element
       We review the indictment’s sufficiency de novo.5 See United States v.
Dentler, 492 F.3d 306, 309 (5th Cir. 2007) (“A challenge to the sufficiency of the
indictment is reviewed de novo.”); United States v. Privett, 68 F.3d 101, 104 (5th
Cir. 1995) (“Whether . . . a mens rea requirement exists is a question of law,
which we review de novo.”). We reject Butler’s argument that the indictment
was insufficient.
       Section 922(g) provides:
       It shall be unlawful for any person [with a prohibited status] to ship or
       transport in interstate or foreign commerce, or possess in or affecting
       commerce, any firearm or ammunition; or to receive any firearm or
       ammunition which has been shipped or transported in interstate or
       foreign commerce.

The subsections of § 922(g) list the nine classes of prohibited status under which
people cannot possess firearms: felons (§ 922(g)(1)), fugitives from justice
(§ 922(g)(2)), unlawful users of controlled substances (§ 922(g)(3)), persons
committed to a mental institution (§ 922(g)(4)), illegal aliens (§ 922(g)(5)),
dishonorable dischargees (§ 922(g)(6)), those who have renounced their U.S.
citizenship (§ 922(g)(7)), those subject to certain domestic violence restraining
orders (§ 922(g)(8)), and those convicted of a misdemeanor crime of domestic
violence (§ 922(g)(9)). This statute consolidated an assortment of former firearm
laws which, like this statute, contained no mens rea element. See United States
v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988) (citing Firearms Owners’ Protection Act
(“FOPA”), Pub. L. No. 99-308, § 102(6)(D), 100 Stat. 449, 452 (1986); H.R. Rep.
No. 99-495).     “[W]hen Congress amended § 922 in 1986, it also amended




       5
        As discussed above, Butler reserved his right to appeal this issue, and thus de novo
review applies.

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18 U.S.C. § 924, the penalty provision applicable to § 922,” to punish violations
of § 922(g) only if they are committed “knowingly,” however.6 Id.
      This court has held that the Government need not prove a defendant’s
knowledge of his status as a felon to establish a violation of § 922(g)(1). See id.
Other circuits have likewise held there is no mens rea requirement as to
prohibited status under other portions of § 922(g).              See United States v.
Ballentine, 4 F.3d 504, 506 (7th Cir. 1993) (discussing status of fugitive from
justice under § 922(g)(2)); United States v. Montero-Camargo, 177 F.3d 1113,
1120 (discussing status of illegal alien under § 922(g)(5)), opinion withdrawn,
192 F.3d 946 (9th Cir. 1999), reinstated by en banc opinion, 208 F.3d 1122, 1127
n.8 (9th Cir. 2000); United States v. Kafka, 222 F.3d 1129, 1131-33 (9th Cir.
2000) (discussing status of subject to a restraining order under § 922(g)(8));
United States v. Hutzell, 217 F.3d 966, 967-68 (8th Cir. 2000) (discussing status
of convicted of a misdemeanor crime of domestic violence under § 922(g)(9));
United States v. Hancock, 231 F.3d 557, 562-63 (9th Cir. 2000) (same). No court,
post-FOPA, has held that a defendant must know of his prohibited status under
§ 922(g).
      This court’s holding in Dancy, that the defendant need not know of his
prohibited status to violate § 922(g)(1), persuades us that § 922(g)(6) does not
require it either. The two subsections have parallel language, and it would be
illogical to impose a mens rea requirement on only one of the subsections. See
Dancy, 861 F.2d 77. In Dancy, the court looked to the legislative history of
§ 922(g) and the applicable penalty provision, § 924(a)(1)(B). The Dancy court
concluded that Congress intended to incorporate former law into the statute, and
that the statute does not require that a felon knew of his prohibited status. Id.



      6
        This mens rea requirement has been interpreted to apply only to the act of firearm
possession. See id.

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                                  No. 10-10148

at 80-82. Butler’s argument that his case is distinguishable from Dancy because
convicted felons presumably know that they have been convicted, whereas Butler
was never notified of his dischargee status, fails on two grounds. First, the
holding in Dancy was based on the legislative history of § 922(g), not on the fact
that Dancy had notice of his felon status. See Dancy, 861 F.2d at 81. Second,
a dischargee does not have significantly less notice of his status than a felon.
Like criminal convictions, military discharges entail extensive process, including
military sentencing and appellate review procedures. Butler’s arguments that
statutory construction and grammar rules require the court to find a mens rea
requirement as to status for § 922(g) are easily rejected. The presumption in
favor of scienter discussed in Staples v. United States, 511 U.S. 600 (1994), and
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), does not apply here
because this case involves a different statute and does not entail the risk of
subjecting ordinary citizens to criminal prosecution for otherwise innocent
conduct. See United States v. Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007).
Second, this court has already rejected Butler’s argument that the Supreme
Court’s construction of the law against identity theft in Flores-Figueroa v.
United States, 129 S. Ct. 1886 (2009), compels us to interpret § 922(g) to have a
mens rea requirement for prohibited status. See United States v. Rose, 587 F.3d
695, 706 (5th Cir. 2009) (“Because Flores-Figueroa does not [unequivocally]
direct [overruling Dancy], we are bound to follow the prior panel opinion in
Dancy.”). Third, Dancy held that the legislative history of § 922(g) resolved any
ambiguity in the statute, and thus the rule of lenity has no bearing on this case.
See Dancy, 861 F.2d at 81 (“the rule of lenity . . . has no application here”).
Likewise, the doctrine of constitutional avoidance is inapplicable here because
this court’s decision in Dancy, frustrates the contention that there are competing
plausible interpretations of the statute. See id.



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                              C ONCLUSION
    For the aforementioned reasons, the judgment of the district court is
AFFIRMED.




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