                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1480
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

        Gabriel Lazaro Garcia-Hernandez, also known as Gabriel L. Garcia

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                           Submitted: September 10, 2015
                              Filed: October 16, 2015
                                  ____________

Before RILEY, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
                              ____________

BENTON, Circuit Judge.

      A jury convicted Gabriel Lazaro Garcia-Hernandez, a convicted felon, of
possessing at least one firearm or ammunition, and a firearm with an obliterated serial
number, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) and §§ 922(k),
924(a)(1)(B). He appeals, challenging the jury instructions and the sufficiency of the
evidence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
       During a search, Garcia-Hernandez told the agents they would find five
firearms at his apartment—a .38, .45, .22, and two rifles. Searching his one-bedroom
apartment, the agents found two firearms—a .38 and a .22 rifle—and ammunition.
The .22 was in the bedroom closet with his clothes, shoes, and other personal
belongings. The .22’s serial number was visibly scratched out and unreadable.
Several rounds of .22 ammunition were in a dresser beside the bed. Also in the
closet were other ammunition of various types and calibers. In the dining area was
a backpack with three more firearms.

      Before trial, Garcia-Hernandez stipulated to a previous felony conviction that
prohibited him from possessing a firearm or ammunition. At trial, he did not object
to the jury instructions. The jury convicted on both counts. Garcia-Hernandez
appeals.

                                           I.

      Garcia-Hernandez claims that the jury should have been instructed to find he
knew the firearm and ammunition were in or affecting interstate commerce.

       Because he did not timely object, the jury instructions are reviewed for plain
error. United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011) (“We typically
review a challenge to jury instructions for an abuse of discretion. Where a party fails
to timely object to an instruction at trial, however, we review only for plain error.”).
This court has the discretion to reverse if the defendant shows “(1) an error, (2) that
was ‘plain,’ (3) ‘affects substantial rights,’ and (4) ‘the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.’” United States v.
Fast Horse, 747 F.3d 1040, 1042 (8th Cir. 2014), quoting United States v. Olano,
507 U.S. 725, 735-36 (1993). “A jury instruction is plainly erroneous if it misstates
the law.” Id.

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      Garcia-Hernandez’s claim rests on his reading of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).

      (g) It shall be unlawful for any person—
               (1) who has been convicted in any court of, a crime punishable by
               imprisonment for a term exceeding one year;
               ...
      to . . . possess in or affecting commerce, any firearm or ammunition . . .

18 U.S.C. § 922(g)(1). The elements of this offense are: “(1) previous conviction of
a crime punishable by a term of imprisonment exceeding one year, (2) knowing
possession of a firearm, and (3) the firearm was in or affecting interstate commerce.”
United States v. Montgomery, 701 F.3d 1218, 1221 (8th Cir. 2012).

       For the third element—that a firearm or ammunition was in or affecting
interstate commerce—Garcia-Hernandez believes that 18 U.S.C. § 924(a)(2) imposes
a mens rea requirement. Section 924(a)(2) says, “Whoever knowingly violates
subsection . . . (g) . . . of section 922 shall be fined as provided in this title,
imprisoned not more than 10 years, or both.”

       Garcia-Hernandez invokes the Menteer case. United States v. Menteer, 350
F.3d 767 (8th Cir. 2003), vacated on other grounds, 544 U.S. 916 (2005), reinstated,
408 F.3d 445 (8th Cir. 2005). The defendant there asserted that the Supreme Court
decisions in Staples and Lambert require the government to prove both “his knowing
possession of a firearm [and] also that he knew it was illegal for him to possess a
firearm” under § 922(g)(1). Id. at 772, referencing Staples v. United States, 511 U.S.
600 (1994) and Lambert v. California, 355 U.S. 225 (1957). Garcia-Hernandez
focuses on the statement that “unless the text of the statute dictates a different result,
the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute
the offense.” Id. at 773, quoting Bryan v. United States, 524 U.S. 184, 193 (1998).

                                           -3-
Garcia-Hernandez ignores Menteer’s statement that “statutes regulating potentially
harmful or injurious items typically do not require the mens rea element that a
defendant know the illegality of his conduct.” Id. at 772, citing Staples, 511 U.S. at
607. Because Menteer was a convicted felon, “all the government had to prove in this
case was that Menteer knew he possessed a firearm; the government did not have to
prove Menteer knew it was illegal to do so.” Id. See also United States v. Hutzell,
217 F.3d 966, 968 (8th Cir. 2000) (holding that the government did not have to prove
the defendant “knew that it was illegal for him to possess a gun”).

       In Garcia-Hernandez’s case, the government had to prove Garcia-Hernandez’s
firearm or ammunition had been in or affecting interstate commerce, not that he knew
it had been in or affecting interstate commerce. The mens rea requirement in
§ 924(a)(2) does not apply to the interstate-commerce element of § 922(g)(1). United
States v. Thompson, 365 Fed. Appx. 42, 43 (8th Cir. 2010) (unpublished) (citing
Staples and Flores-Figueroa, and holding that the district court did not err “plainly
or otherwise, in instructing the jury” because: “The interstate commerce nexus in
section 922(g) merely provides the basis for federal jurisdiction, and knowledge of
this element is not required.”). Accord United States v. Stone, 706 F.3d 1145, 1147
(9th Cir. 2013) (holding the mens rea requirement in § 924(a)(2) did not extend to
§ 922(g)(1)’s interstate commerce element and that “the interstate commerce element
is purely jurisdictional”); United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995)
(en banc) (analyzing § 922(g)(1)’s history, concluding “Congress did not intend . . .
to place the additional evidentiary burdens on the government,” and explaining it was
“highly unlikely that Congress intended to make it easier for felons to avoid
prosecution by permitting them to claim that they were unaware of their felony status
and/or the firearm’s interstate nexus.”); United States v. Capps, 77 F.3d 350, 353
(10th Cir. 1996) (“Staples and X-Citement Video have not changed the scienter
requirements applicable to a prosecution under § 922(g)(1), and ‘knowingly’ still
modifies only defendant’s possession of the firearm.”); United States v. Kirsh, 54
F.3d 1062, 1071 (2d Cir. 1995) (“The requirement that the firearms have an interstate

                                         -4-
nexus is a jurisdictional requirement that is ‘satisfied merely upon a showing that the
possessed firearm has previously . . . travelled in interstate commerce.’”).

       Garcia-Hernandez also invokes Elonis v. United States, 135 S. Ct. 2001 (2015).
The Elonis case addressed 18 U.S.C. § 875(c), which “does not specify any required
mental state.” 135 S. Ct. at 2009. Elonis reiterated that the “presumption in favor of
a scienter requirement should apply to each of the statutory elements that criminalize
otherwise innocent conduct.” Id. at 2011, quoting United States v. X-Citement
Video, Inc., 513 U.S. 64, 72 (1994). The Court held that “the crucial element
separating legal innocence from wrongful conduct” necessitates a scienter
requirement. Id., quoting X-Citement Video, Inc., 513 U.S. at 72. For Garcia-
Hernandez, the crucial element separating legal innocence from wrongful conduct is
that he was a felon in possession of a firearm and ammunition—not that the firearm
and ammunition were in or affecting interstate commerce.

       “The Supreme Court has explained that situations where the term ‘knowingly’
does not apply to all elements that follow it ‘typically involve special contexts or . . .
background circumstances that call for such a reading.’” United States v. Bruguier,
735 F.3d 754, 758 (8th Cir. 2013) (en banc), quoting Flores-Figueroa v. United
States, 556 U.S. 646, 652 (2009). In Flores-Figueroa, the Court found no special
context or background circumstances for 18 U.S.C. § 1028A(a)(1), which punishes
whoever “knowingly transfers, possesses, or uses, without lawful authority, a means
of identification of another person.” Flores-Figueroa, 556 U.S. at 648. The Court
concluded that the government must “show that the defendant knew that the ‘means
of identification’ he or she unlawfully transferred, possessed, or used, in fact,
belonged to ‘another person.’” Id. at 647. The Court explained, “It makes little sense
to read [§ 1028A(a)(1)]’s language as heavily penalizing a person who ‘transfers,
possesses, or uses, without lawful authority’ a something, but does not know, at the
very least, that the ‘something’ . . . is a ‘means of identification.’” Id. at 650. “[T]he


                                           -5-
inquiry into a sentence’s meaning is a contextual one. . . . No special context is
present here.” Id. at 652.

       In Flores-Figueroa, “Congress used the word ‘knowingly’ followed by a list
of offense elements.” Id. at 657. Section 922(g)(1) is different. The “knowingly”
requirement is in a separate section, § 924(a)(2). Requiring a mens rea for all
elements in § 922(g)(1) is less evident than requiring a mens rea for the list of
elements in § 1028A(a)(1). See Stone, 706 F.3d at 1147 (holding that “Flores-
Figueroa did not disturb this court’s existing interpretation of §§ 922(g)(1) and
924(a)(2)” and therefore the mens rea requirement did not extend to the interstate
commerce element); Langley, 62 F.3d at 606 (detailing the legislative history of
§ 922(g)(1) and § 924(a)(2) and concluding Congress did not intend to apply the
mens rea requirement to the interstate commerce element of § 922(g)(1)); United
States v. Peters, 364 Fed. Appx. 897, 898 (5th Cir. 2010) (unpublished) (“The
determination that the ‘knowingly’ requirement in Section 924(a)(2) did not extend
to Section 922(g)(1) was an alternate holding [of Rose], not dictum, and thus is
binding precedent.”), interpreting United States v. Rose, 587 F.3d 695, 705-06 (5th
Cir. 2009). A special context is present here: the interstate commerce element
provides federal jurisdiction. See Thompson, 365 Fed. Appx. at 43 (stating that the
“interstate commerce nexus in section 922(g) merely provides the basis for federal
jurisdiction, and knowledge of this element is not required.” (emphasis added));
Stone, 706 F.3d at 1147 (“[T]he interstate commerce element [of § 922(g)(1)] is
purely jurisdictional”).

     The district court1 did not plainly err in not instructing the jury to find Garcia-
Hernandez knew the firearm and ammunition were in or affecting interstate
commerce.


      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.

                                          -6-
                                          II.

       Garcia-Hernandez asserts that the government failed to present sufficient
evidence he knew the serial number on the .22 rifle had been obliterated.

      This court reviews de novo the sufficiency of the evidence, “viewing evidence
in the light most favorable to the jury’s verdict, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014). A conviction is reversed
“only if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013).

       Garcia-Hernandez relies on United States v. Haile, 685 F.3d 1211 (11th Cir.
2012). The government there established “that [the defendant] discussed guns in
general before the arrest and that agents found the gun in the flatbed of his truck (out
of his reach) after the arrest.” 685 F.3d at 1220-21. The Eleventh Circuit held that
the evidence was not sufficient “even to show that [the defendant] possessed the gun
for a period of time during which an ordinary man would have discovered that the
serial number was obliterated.” Id. at 1220.

        The evidence here is stronger than the evidence in Haile. A reasonable jury
could infer that Garcia-Hernandez knew the firearm had an obliterated serial number.
First, the serial number was visibly scratched out, as apparent in the photo exhibit at
trial. See United States v. Thornton, 463 F.3d 693, 699 (7th Cir. 2006) (“After
concluding that he knowingly possessed the gun, the jury also could have concluded
that he knew the gun’s serial number had been obliterated, given that one need only
look at the gun to attain that knowledge.”). Second, the firearm was found in Garcia-
Hernandez’s bedroom closet with his clothes and shoes. Third, he told police before
the search that they would find “a .38, a .45, a .22, and then two rifles” at his

                                          -7-
apartment, demonstrating knowledge of the firearms he owned. A reasonable jury
could infer that Garcia-Hernandez knew of the firearm’s obliterated serial number.

      The evidence was sufficient to support Garcia-Hernandez’s conviction.

                                  *******

      The judgment is affirmed.
                     ______________________________




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