           Case: 18-10140   Date Filed: 04/20/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10140
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cr-20582-JEM-1


UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                 versus

RAKEEM ASAAD DAVIS,
a.k.a. Poo Poo,

                                                        Defendant - Appellant.

                      ________________________

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

                             (April 20, 2020)

    ON REMAND FROM THE UNITED STATES SUPREME COURT

Before ROSENBAUM, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      This appeal returns to us on remand from the Supreme Court of the United

States. After we affirmed Davis’s conviction and sentence for unlawfully possessing

a firearm and ammunition after a felony conviction, United States v. Davis, 777 F.

App’x 360 (11th Cir. 2019), the Supreme Court issued its decision in Rehaif v.

United States, 588 U.S. —, 139 S. Ct. 2191 (2019). The Court then granted Davis’s

petition, vacated our judgment, and remanded his appeal for further consideration in

light of Rehaif. For the reasons that follow, we conclude that Davis is not entitled

to relief from his conviction based on Rehaif. We therefore affirm his conviction.

                                             I.

      Davis’s indictment alleged that he, “having been previously convicted of a

crime punishable by imprisonment for a term exceeding one year, did knowingly

possess a firearm and ammunition in and affecting interstate and foreign commerce,

in violation of Title 18, United States Code, Sections 922(g)(1) and (2).” Davis pled

not guilty and proceeded to trial.

      At trial, the government introduced stipulations stating that Davis previously

had been convicted of two felony offenses, including a conviction for “the felony

offense of knowingly possessing a firearm after having been convicted of a felony.”

After both parties rested, the district court instructed the jury that in order to return

a verdict of guilty, it had to find beyond a reasonable doubt that Davis “knowingly

possessed” a firearm or ammunition and that he “had been convicted of a felony,


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which is a crime punishable by imprisonment of more than one year.” The jury

returned a guilty verdict.

      Davis raised no objections to his presentence investigation report (“PSR”).

The PSR reported that Davis had several prior felony convictions, including a

conviction for possessing a firearm as a convicted felon. It appears that the longest

period Davis served in custody for these offenses was 366 days in jail, only three

days of which occurred after sentencing, with the remainder credited as time served.

      The district court sentenced Davis to 100 months in prison. Davis appealed,

arguing that the court erred in these three ways: (1) denying without inquiry his pre-

trial motion for substitution of counsel; (2) failing to instruct the jury that it was

required to reach unanimity as which firearm Davis possessed; and (3) failing to

follow proper procedures at sentencing. We affirmed Davis’s conviction and

sentence, see Davis, 777 F. App’x at 368, and then denied his petition for rehearing.

      After Rehaif was decided, Davis petitioned for a writ of certiorari. The

Supreme Court granted the petition, vacated the judgment, and remanded this case

for further consideration in light of Rehaif. We asked the parties to file supplemental

briefs addressing Rehaif’s impact on this appeal. Davis requests that we vacate his

conviction because Rehaif made plain that errors occurred when his indictment

failed to allege, his jury was not instructed to find, and the government did not prove

that he knew he was a felon when he possessed the firearm. The government


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responds that we should affirm because Davis has not established that these errors

affected his substantial rights.

                                           II.

      In Rehaif, the Supreme Court held that, “in a prosecution under 18 U.S.C.

§ 922(g) and § 924(a)(2), the Government must prove both that the defendant knew

he possessed a firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.” 139 S. Ct. at 2200. In so holding, Rehaif

abrogated United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997), which

held that a defendant’s knowledge of his status as a convicted felon was not an

element of § 922(g)(1).

      “We review for plain error [Davis’s] new challenges to his indictment, the

jury instructions, and the sufficiency of the evidence[]” based on Rehaif. United

States v. Reed, 941 F.3d 1018, 1020 (11th Cir. 2019) (citations omitted); see United

States v. Moore, — F.3d —, 2020 WL 1527975, at *12 (11th Cir. March 31, 2020)

(reviewing materially identical arguments for plain error). To obtain relief, Davis

“must prove that an error occurred that was both plain and that affected his

substantial rights.” Reed, 941 F.3d at 1021. If he does so, we may exercise our

discretion to correct the error if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.




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       We may consult the whole record to determine whether the effect affects

substantial rights. Id. (“[W]e consider proceedings that both precede and postdate

the errors about which [the defendant] complaints.”). An error affects substantial

rights if there is a “reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” Molina-Martinez v. United States, 578 U.S.

—, 136 S. Ct. 1338, 1343 (2016) (citation and quotation marks omitted). If the

record clearly establishes that the defendant knew of his status as a felon, he cannot

show that his substantial rights were affected. See Moore, 2020 WL 1527975, at

*12 (holding that Rehaif errors did not affect substantial rights because “the record

clearly establishes that both Appellants knew they were felons”); Reed, 941 F.3d at

1022 (“Because the record establishes that Reed knew he was a felon, he cannot

prove that the errors affected his substantial rights or the fairness, integrity, or public

reputation of his trial.”).

       Davis has established errors in his indictment and at his trial that Rehaif, which

applies in this direct appeal, made plain. 1 See Johnson v. United States, 520 U.S.

461, 468 (1997) (“[W]here the law at the time of trial was settled and clearly contrary

to the law at the time of appeal—it is enough that an error be ‘plain’ at the time of




       1
          To the extent Davis argues that the defective indictment deprived the district court of
subject-matter jurisdiction over his case, that argument is foreclosed by Moore. See Moore, 2020
WL 1527975, at *11 (“[T]he omission of an element in an indictment does not deprive the district
court of subject matter jurisdiction.).
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appellate consideration.”). Specifically, Rehaif made clear that the government must

prove that a defendant knew he belonged to the relevant category of persons—here,

those with a prior felony conviction—that § 922(g) prohibits from possessing a

firearm. Because the indictment did not allege, the government was not required to

prove, and the jury was not instructed to find that Davis knew he was a felon, these

were errors that are plain under Rehaif.

      Nevertheless, Davis has not demonstrated a reasonable probability that, but

for the errors, the outcome of the proceeding could have been different. See Molina-

Martinez, 136 S. Ct. at 1343. When Davis possessed the firearm, he had been

convicted of at least two felony convictions in a Florida court. While the PSR

indicates that most of Davis’s prior sentences were for terms of less than one year,

he cannot plausibly claim ignorance of his status as a felon because, as he stipulated

at trial, he previously had been convicted of “the felony offense of knowingly

possessing a firearm after having been convicted of a felony.” That conviction,

along with his other criminal history, clearly establishes that Davis knew he was a

felon when he possessed a firearm. “Because the record establishes that [Davis]

knew he was a felon, he cannot prove that the errors affected his substantial rights

or the fairness, integrity, or public reputation of his trial.” Reed, 941 F.3d at 1022.

      For these reasons, we affirm Davis’s conviction in light of Rehaif, and we

reinstate our previous opinion in this case.


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AFFIRMED.




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