     Case: 19-50227    Document: 00515488899   Page: 1   Date Filed: 07/14/2020




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

                                                                       FILED
                                No. 19-50227                       July 14, 2020
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


       Plaintiff - Appellee

v.

ROBERT LOUIS BRANDON,

       Defendant - Appellant




                 Appeal from the United States District Court
                      for the Western District of Texas


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      On December 17, 2018, Robert Louis Brandon pleaded guilty to being a
felon in possession of a firearm. After Brandon’s plea, the Supreme Court
decided Rehaif v. United States, which established for the first time that the
government must prove that the person charged with being a felon in
possession of a firearm “knew he had the relevant status when he possessed”
the firearm. 139 S. Ct. 2191, 2194 (2019). Brandon argues that the district
court plainly erred by accepting his guilty plea because the record does not
establish that, at the time he possessed the firearm, he knew he had previously
been convicted of a qualifying felony offense. Because the record shows that
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the district court’s error did not affect Brandon’s substantial rights, see United
States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020), we AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
                              A. The Guilty Plea
      On October 24, 2018, a grand jury returned a one-count indictment
charging Brandon, in pertinent part, as follows:
      [O]n or about September 23, 2018, in the Western District of
      Texas, the Defendant, ROBERT LOUIS BRANDON, who having
      been convicted of a crime punishable by imprisonment for a term
      exceeding one year, namely for the felony offense of Burglary of a
      Building on or about June 25, 2008 in a State District [sic] Court
      for Midland County, Texas . . . did knowingly possess . . . a firearm,
      to wit: a .38 caliber Colt Revolver.
On December 17, 2018, Brandon pleaded guilty to being a convicted felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
plea was reached without a plea agreement.
      At the plea hearing, Brandon and the government agreed to the following
stipulated facts. At 11:06 p.m. on September 23, 2018, police officers in
Midland, Texas stopped Brandon for a traffic violation. Brandon stated he did
not have a driver’s license or identification and provided a false name and date
of birth to the officer. After a drug dog alerted on the vehicle, officers searched
it and discovered suspected methamphetamine, drug paraphernalia, and a .38
caliber Colt Revolver, which was under the front passenger seat. Brandon
admitted that “he had the gun and had handed it to the passenger to be
concealed under the seat.” Brandon acknowledged the accuracy of these facts
under oath at rearraignment. A criminal history check revealed that Brandon
“had been previously convicted of the felony offense Burglary of a Building” in
Texas state court on June 25, 2008.
      The magistrate judge found that a factual basis supported Brandon’s
guilty plea. The district court thereafter adjudged Brandon guilty. On
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March 12, 2019, the district court sentenced Brandon to 30 months in prison
followed by a 3-year term of supervised release. At the sentencing hearing,
Brandon was awarded credit for acceptance of responsibility. On March 15,
2019, Brandon appealed.
                                        B. The PSR
       Brandon filed no objection to the description of his offense conduct listed
in the presentence report (PSR). The PSR documented Brandon’s false
statements to the police, including false statements regarding his name and
date of birth. The PSR also explained that Brandon told police that, as he was
being pulled over, he “placed” the firearm next to the passenger and instructed
the passengers to cooperate with his lies to the police. Finally, the PSR noted
that Brandon “was previously convicted of Burglary of a Building on June 25,
2008” in Texas. Brandon’s sole objection to the PSR was to its proposed
enhancement for possession of a firearm in connection with another felony
offense. Brandon no longer pursues that objection.
           C. The Underlying Burglary of a Building Conviction
       On June 25, 2008, Brandon was convicted of Burglary of a Building. 1
Burglary of a Building is a felony in Texas. Brandon was sentenced to three
years of probation. The “Judgment of Conviction” for that case bears Brandon’s
signature and thumbprints. The judgment identifies Burglary of a Building as
a “state jail felony offense” on three separate occasions, including in its title.
The judgment also states, on two occasions, that the punishment assessed was
18 months in jail, “suspended” to 3 years of “community supervision.” On May



       1 This court granted the government’s unopposed motion to supplement the record on
appeal with documents used by the probation office to prepare the PSR, including state court
conviction documentation. FED. R. APP. P. 10(e)(2)(C). This information comes from those
state court documents, which “we may take judicial notice of . . . as matters of public record.”
In re Deepwater Horizon, 934 F.3d 434, 440 (5th Cir. 2019); see also Odle v. Wal-Mart Stores,
Inc., 747 F.3d 315, 316 n.1 (5th Cir. 2014).
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7, 2009, Brandon’s probation was revoked for “failing to report to a probation
officer, failing to pay fees and fines, failing to complete community service, and
changing residence without permission.” He was then sentenced to seven
months in prison. When his probation was revoked, Brandon again
acknowledged, by signature and thumbprint, that his initial sentence was 18
months in jail, suspended to 3 years of community supervision.
                                II. DISCUSSION
                                 A. Jurisdiction
      The district court had jurisdiction under 18 U.S.C. §§ 3231 and 3438.
This court has appellate jurisdiction under 28 U.S.C. § 1291. Brandon’s notice
of appeal was timely.
                             B. Standard of Review
      Brandon presents a single issue on appeal: whether the district court
plainly erred when it found the factual basis supports his guilty plea,
particularly in light of the Supreme Court’s subsequent decision in Rehaif.
Brandon accepts that our standard of review is for plain error. United States
v. Lavalais, 960 F.3d 180, 186 (5th Cir. 2020). “To reverse under plain error
review, we must find (1) an error, (2) that is clear or obvious, and (3) that affects
the defendant’s substantial rights.” Id. If those conditions are met, this court
“‘should’ correct [the error] ‘if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.’” Rosales-Mireles v. United States,
138 S. Ct. 1897, 1906 (2018) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)); see also Puckett v. United States, 556 U.S. 129, 135 (2009).
                           C. Rehaif v. United States
      After Brandon pleaded guilty and was sentenced, and while his appeal
was pending, “the Supreme Court interpreted 18 U.S.C. §§ 922(g) and 924(a)(2)
to require proof that the defendant knew he was a felon” or otherwise knew he
was a person prohibited from possessing a firearm. Lavalais, 960 F.3d at 186;
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see Rehaif, 139 S. Ct. at 2200 (government must prove that the defendant
“knew he belonged to the relevant category of persons barred from possessing
a firearm”). The Supreme Court noted that the scienter requirement in § 922(g)
“helps to separate wrongful from innocent acts.” Rehaif, 139 S. Ct. at 2197.
This is because, if a defendant does not have knowledge of his prohibited
status, “the defendant may well lack the intent needed to make his behavior
wrongful.” Id. Indeed, the Supreme Court noted that Congress might not, in
all circumstances, “have expected defendants under § 922(g) . . . to know their
own statuses.” Id. As an example, the Supreme Court stated that § 922(g)
should not apply to “a person who was convicted of a prior crime but sentenced
only to probation, who does not know that the crime is ‘punishable by
imprisonment for a term exceeding one year.’” Id. at 2198 (quoting § 922(g)(1)).
      While the evidence must “establish [the] defendant’s knowledge of
status,” the Supreme Court “express[ed] no view . . . about what precisely the
Government must prove to establish a defendant’s knowledge of status.” Id. at
2200 (emphasis added); see also id. at 2198 (“[W]e doubt that the obligation to
prove a defendant’s knowledge of his status will be as burdensome as the
Government suggests.”).
                          D. Plain Error Analysis
      “On plain-error review, a defendant ‘must first establish an error.’”
United States v. Ortiz, 927 F.3d 868, 872 (5th Cir. 2019) (quoting United States
v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019)). To establish an error in this
context, Brandon must show that the factual basis was insufficient to support
his plea. United States v. Angeles-Mascote, 206 F.3d 529, 530–31 (5th Cir.
2000). “Before entering judgment on a guilty plea, the [district] court must
determine that there is a factual basis for the plea.” FED. R. CRIM. P. 11(b)(3).
“In determining the adequacy of a factual basis, the trial court must compare
‘(1) the conduct to which the defendant admits with (2) the elements of the
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offense charged in the indictment or information.’” United States v. Garcia-
Paulin, 627 F.3d 127, 131 (5th Cir. 2010) (quoting United States v. Marek, 238
F.3d 310, 315 (5th Cir. 2001) (en banc)).
      Here, the district court did not explicitly consider whether the factual
basis provided sufficient evidence that Brandon knew, at the time he possessed
the firearm, that he had “been convicted . . . of, a crime punishable by
imprisonment for a term exceeding one year” because Rehaif had not yet been
decided. § 922(g)(1); Rehaif, 139 S. Ct. at 2200. Nonetheless, the district court’s
error is assessed at “the time of appellate consideration.” Johnson v. United
States, 520 U.S. 461, 468 (1997); Griffith v. Kentucky, 479 U.S. 314, 328 (1987);
see also Lavalais, 960 F.3d at 187 (recognizing that “Rehaif applies to cases on
direct appeal”). Thus, the district court erred and this error is clear under
current law.
      However, Brandon is not entitled to relief because he has not shown “a
reasonable probability that, but for the error, he would not have entered the
plea” and therefore has not shown the district court’s error affected his
substantial rights. United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir.
2006) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
When determining whether Brandon would have entered the plea but for the
district court’s error, “we may look beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
supporting his conviction,” even if the district court did not do so. Ortiz, 927
F.3d at 873 (quoting United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010)).
      Here,    “the   record   as     a   whole    establishes   that    [Brandon]
had . . . knowledge” of his status as a convicted felon when he possessed the
firearm, meaning he cannot show a reasonable probability that he would not
have pleaded guilty absent the district court’s error. United States v. Johnson,
781 F. App’x 370, 371 (5th Cir. 2019), cert. denied No. 19-7382, 2020 WL
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3405890, at *1 (U.S. June 22, 2020); Hicks, 958 F.3d at 402. The record
demonstrates that, when he pleaded guilty, the State of Texas informed
Brandon that his Burglary of a Building conviction was a “state jail felony
offense” punishable by 18 months in jail. 2 Brandon acknowledged this fact by
signing the related “Judgment of Conviction,” which, again, numerous times,
identified Burglary of a Building as a “felony offense.” And Brandon was
“admonished” concerning “the range of punishment” at his guilty-plea hearing.
When his probation was revoked, Brandon again acknowledged that his
Burglary of a Building conviction was a “state jail felony offense” punishable
by 18 months in jail. Thus, there is no doubt that Brandon knew of his
prohibited status at the time of his 2008 Burglary of a Building conviction and
the 2009 parole revocation. 3
       However,       Brandon      contends         that   it   is   “unclear”   whether      he
“remembered” his status some ten years later, when he was discovered in
possession of a firearm, in October 2008. It is true that the Supreme Court
specifically noted in Rehaif that it is unlikely Congress expected all defendants
in § 922(g) cases “to know their own statuses.” Rehaif, 139 S. Ct. at 2197.
Notably, worried about a circumstance where a defendant was sentenced “only



       2  As noted above, we can “scan the entire record for facts supporting” the conviction.
Ortiz, 927 F.3d at 873 (citation omitted). The government moved, unopposed, to supplement
the record on appeal with documentation related to Brandon’s state conviction for Burglary
of a Building and this court granted that motion. FED. R. APP. P. 10(e)(2)(C). These documents
are judicially noticeable, In re Deepwater Horizon, 934 F.3d at 440, and we have relied on
“documentation related to . . . state convictions” in other cases assessing the sufficiency of the
factual basis supporting a § 922(g) guilty plea. See United States v. Contreras-Orosco, 791 F.
App’x 489, 489 (5th Cir. 2020).
        3 Moreover, Brandon admitted in his factual resume and during the plea colloquy that

he “had been previously convicted” of a “felony offense” in 2008. However, because these
statements, standing alone, may not establish Rehaif scienter at the time of his offense,
compare United States v. Johnson, 781 F. App’x 370, 371 (5th Cir. 2019), cert. denied No. 19-
7382, 2020 WL 3405890, at *1 (U.S. June 22, 2020) with United States v. Denson, 774 F.
App’x 184, 185 (5th Cir. 2019), we do not rest our opinion on Brandon’s rearraignment
statements.
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to probation” for the predicate offense and “does not know that the crime is
‘punishable by imprisonment for a term exceeding one year,’” id. at 2198
(citation omitted), the Supreme Court highlighted that circumstantial evidence
could be used to prove knowledge. See id.
      Here, circumstantial evidence shows that Brandon was aware of his
prohibited status when he possessed the firearm. Brandon admitted that, as
police approached, he “handed [the firearm] to the passenger to be concealed
under the seat.” Brandon also repeatedly lied to the police about his name and
date of birth. Coupled with the felony clarity in his state court documents,
Brandon gives no convincing reason why he would have behaved the way that
he did, and we find that this conduct is circumstantial evidence that Brandon
was aware of his status as a convicted felon. See Lavalais, 960 F.3d at 187
(evidence that defendant asked someone else to falsely claim ownership of the
firearm following arrest showed defendant “knew full well that he was a
convicted felon prohibited from possessing a firearm”); Johnson, 781 F. App’x
at 371 (evidence that defendant “feared police discovery of a firearm at the time
of his arrest for the crime of conviction” contributed to finding of knowledge).
With this evidence at the government’s disposal, Brandon cannot show a
“reasonable probability” that he would have gone to trial if he had been
informed of the Rehaif scienter requirement.
      Brandon’s state court documents, and especially his behavior at the time
of his arrest, establish that Brandon had knowledge of his status as a convicted
felon when he possessed the firearm. Hicks, 958 F.3d at 401; Johnson, 781 F.
App’x at 371. Therefore, there is not a “reasonable probability” that Brandon
would have refused to enter the plea absent the district court’s error and
Brandon cannot show that the error affected his substantial rights. Thus, the
district court’s acceptance of the factual basis for Brandon’s guilty plea was not


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plain error. See Hicks, 958 F.3d at 401; Lavalais, 960 F.3d at 187; Johnson,
781 F. App’x at 371.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM.




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