              Case: 18-13710    Date Filed: 03/02/2020   Page: 1 of 6



                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13710
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:16-cr-20387-DPG-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,
                                      versus

GARRY GRACE,

                                                            Defendant-Appellant.

                          ________________________

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

                                 (March 2, 2020)

Before WILLIAM PRYOR, BRANCH and FAY, Circuit Judges.

PER CURIAM:

      The government moves us to modify our January 16, 2020, opinion, which

affirmed Garry Grace’s conviction for being a felon in possession of a firearm and
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ammunition. 18 U.S.C. §§ 922(g)(1), 924(e)(1). We GRANT the motion, and we

VACATE and WITHDRAW our earlier opinion and substitute the following

revised opinion.

      Grace appeals his conviction for possessing a firearm and ammunition as a

felon. Id. §§ 922(g)(1), 924(e)(1). Grace seeks to vacate his conviction based on

Rehaif v. United States, 139 S. Ct. 2191 (2019), which the Supreme Court decided

while his appeal was pending. Grace argues, based on Rehaif, that plain error

occurred because his indictment failed to allege he knew he was a felon and that

the omission stripped the district court of power to adjudicate his criminal case.

Because the defect in Grace’s indictment did not affect the jurisdiction of the

district court or Grace’s substantial rights, we affirm.

      A grand jury charged Grace with “knowingly possess[ing] a firearm and

ammunition in and affecting interstate and foreign commerce . . . [after] having

previously been convicted of a crime punishable by imprisonment for a term

exceeding one year, . . . in violation of Title 18, United States Code, Sections

922(g)(1) and 924(e)(1).” Before trial, Grace stipulated that, “on September 14,

2013, [he] was not lawfully permitted to possess a firearm or ammunition under

federal law” because he previously “had been convicted in a Florida court of a

crime punishable by imprisonment for a term in excess of one year” and his “rights




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to possess a firearm or ammunition ha[d] not been restored . . . .” Grace proceeded

to trial and the jury found him guilty of being a felon in possession.

      Grace’s presentence investigation report classified him as an armed career

criminal and recommended that he receive the minimum statutory sentence of

imprisonment. See 18 U.S.C. § 924(e)(1). The presentence report counted as

predicate offenses Grace’s convictions in June 2001 of selling, manufacturing, or

delivering both cocaine and marijuana and in November 2003—in two separate

cases—of selling, manufacturing, or delivering cocaine and possessing marijuana

and of attempted armed robbery, attempted carjacking, aggravated battery with

great bodily harm using a firearm, and burglary with assault or armed battery. The

presentence report stated that Grace had served two concurrent sentences of 84

months in prison for his latter crimes.

      Grace did not object to the presentence report, and the district court adopted

its findings and recommendations. The district court sentenced Grace to 180

months of imprisonment.

      Because Grace never objected to the sufficiency of his indictment, we

review for plain error. See United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.

2019). Under that standard, Grace must prove an error occurred that was plain and

that affected his substantial rights. See id. at 1021. “And because relief on plain-

error review is in the discretion of the reviewing court, [Grace] has the further


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burden to persuade [us] that the error seriously affected the fairness, integrity or

public reputation of judicial proceedings.” United States v. Vonn, 535 U.S. 55, 63

(2002) (alteration adopted) (internal quotation marks omitted).

      Grace established an error in his indictment that Rehaif made plain. Rehaif

made clear that a defendant’s knowledge of his status as a felon is an element of

the crime of being a felon in possession of a firearm and ammunition. 139 S. Ct. at

2200; see Reed, 941 F.3d at 1021. And Grace’s indictment failed to allege that he

knew he was a felon.

      The error in Grace’s indictment did not affect the jurisdiction of the district

court to adjudicate Grace’s case. Jurisdiction concerns “the courts’ statutory or

constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625,

630 (2002) (emphasis omitted) (quoting Steel Co. v. Citizens for Better Env’t, 523

U.S. 83, 89 (1998)). Because Congress empowered district courts to try “all

offenses against the laws of the United States,” 18 U.S.C. § 3231, “all that

matter[s] for purposes of the district court’s subject-matter jurisdiction [is] that the

United States file[] an indictment charging [the defendant] with violating ‘laws of

the United States,’” United States v. Brown, 752 F.3d 1344, 1348 (11th Cir. 2014)

(alteration adopted) (internal quotation marks omitted). “So long as the indictment

charges the defendant with violating a valid federal statute as enacted in the United

States Code,” the district court has power to hear the criminal case. Id. at 1354. A


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district court lacks jurisdiction only if the indictment “charg[es] (1) a crime that

simply d[oes] not exist in the United States Code, . . . (2) conduct that . . . [is not

prohibited by the] statute, . . . [or] (3) a violation of a regulation that [is] not

intended to be a ‘law’ for purposes of criminal liability . . . .” Id. at 1353 (internal

citations omitted). The omission of an element of a crime makes the indictment

defective, but that defect “do[es] not deprive a court of its power to adjudicate [the]

case.” Cotton, 535 U.S. at 630; see Brown, 752 F.3d at 1350–51, 1353–54.

       Grace’s indictment vested jurisdiction in the district court. The indictment

charged Grace with violating a law of the United States, 18 U.S.C. § 922(g)(1),

which empowered the district court to hear his case. Grace’s indictment parroted

the language of the statute by alleging that, on a specific date, he was a felon in

possession of a firearm and ammunition that had a connection to interstate

commerce. Id. That Grace’s indictment failed to allege that he knew he was a felon

prohibited from possessing firearms did “not affect the jurisdiction of the [district

court] to determine the case presented by [his] indictment.” See Cotton, 535 U.S. at

631 (quoting United States v. Williams, 341 U.S. 58, 66 (1951)). In the words of

the Court in Cotton, we are “[f]reed from the view that indictment omissions

deprive a court of jurisdiction . . . .” Id. at 631.

       Grace is not entitled to a vacatur of his conviction because he cannot prove

that the error in his indictment affected his substantial rights. He cannot “show a


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reasonable probability that, but for the error, the outcome of [his] proceeding

would have been different,” Molina-Martinez v. United States, 136 S. Ct. 1338,

1343 (2016), in the light of “the whole record,” Vonn, 535 U.S. at 59. See Reed,

941 F.3d at 1021. Grace’s indictment “contained enough factual detail to apprise

[him] of the conduct for which he would be tried” even though “it did not

expressly allege mens rea” concerning his status as a felon. See United States v.

Gray, 260 F.3d 1267, 1283 (11th Cir. 2001). Grace stipulated before trial that he

was a felon and admitted at sentencing that he had been convicted of eight felony

offenses and had served seven years in prison. See United States v. Harris, 941

F.3d 1048, 1053 (11th Cir. 2019) (observing the defendant “waived any objections

and effectively admitted to the recited facts for sentencing purposes” by failing to

dispute the contents of his presentence report). So Grace cannot prove that he was

prejudiced by the error in his indictment or that the error affected the fairness,

integrity, or public reputation of his trial.

       We AFFIRM Grace’s conviction.




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