                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30128

                Plaintiff-Appellee,             D.C. No.
                                                4:17-cr-00017-BLW-1
 v.

JEREMIAH BENJAMIN SCHMIDT,                      MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Idaho
                   B. Lynn Winmill, District Judge, Presiding

                           Submitted February 3, 2020**
                              Seattle, Washington

Before: M. SMITH, N.R. SMITH, and BRESS, Circuit Judges.

      Jeremiah Schmidt appeals his 46-month sentence for unlawful possession of

a firearm in violation of 18 U.S.C. § 922(g). Reviewing for plain error, see United

States v. Gallegos, 613 F.3d 1211, 1213–14 (9th Cir. 2010), we affirm.

      1.     District courts “have discretion to select whether the sentences they


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
impose will run concurrently or consecutively with respect to other sentences . . .

that have been imposed in other proceedings, including state proceedings.” Setser

v. United States, 566 U.S. 231, 236 (2012). In this case, the district court considered

the relevant sentencing factors enumerated in 18 U.S.C. § 3553(a) and Application

Note 3 of U.S.S.G. § 5G1.3 (2016) in imposing a federal sentence that would run

partially concurrent and partially consecutive to the state sentences Schmidt was

already serving.

      Schmidt’s sole argument on appeal is that the district court did not account for

state parole hearings he claims were scheduled in September 2017 (before his

sentencing) and February 2018 (after his sentencing). But Schmidt did not bring

those hearings to the district court’s attention, and he admits “no records have been

obtained” confirming that a February 2018 hearing ever occurred. Nor does Schmidt

explain how knowledge of either the September 2017 or February 2018 parole

hearing would have influenced the district court’s decision about whether to impose

a concurrent or consecutive sentence. See Setser, 566 U.S. at 241 (rejecting the

argument that a court cannot “make the concurrent-vs.-consecutive decision when it

does not have before it all of the information about the anticipated state sentence”).

There was thus no plain error on this record.

      2.     Although Schmidt did not raise it, the government has sua sponte

argued that Rehaif v. United States, 139 S. Ct. 2191 (2019), does not invalidate


                                          2
Schmidt’s plea agreement. Rehaif held that to convict a defendant under 18 U.S.C.

§§ 922(g) and 924(a), “the Government . . . must show that the defendant knew he

possessed a firearm and also that he knew he had the relevant [felon] status when he

possessed it.” Id. at 2194. In his plea agreement, Schmidt did not expressly admit

that he knew he was a felon. Rehaif was decided after Schmidt filed his opening

brief but applies to cases still on direct appeal. See Griffith v. Kentucky, 479 U.S.

314, 328 (1987).

      In this Court, Schmidt has not responded to the government’s brief or

otherwise claimed he is entitled to relief under Rehaif. Although Schmidt did not

argue below that the government was required to prove Schmidt knew he was a

felon, under any standard of review there was overwhelming evidence that Schmidt

knew he was a felon when he possessed the firearms at issue in this case. See United

States v. Hessiani, 786 F. App’x 658, 661 (9th Cir. 2019). Accordingly, Schmidt

has no claim to relief under Rehaif.

      AFFIRMED.




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