                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 20a0087p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                  ┐
                                   Plaintiff-Appellee,      │
                                                            │
                                                             >        No. 19-3343
        v.                                                  │
                                                            │
                                                            │
 ISAAC L. HOBBS,                                            │
                                Defendant-Appellant.        │
                                                            ┘

                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                    No. 1:17-cr-00280-1—Benita Y. Pearson, District Judge.

                              Decided and Filed: March 20, 2020

                   Before: STRANCH, BUSH, and LARSEN, Circuit Judges.
                                 _________________

                                           COUNSEL

ON BRIEF: Michael D. Meuti, Kristen-Elise F. DePizzo, BENESCH, FRIEDLANDER,
COPLAN & ARONOFF LLP, Cleveland, Ohio, for Appellant. Brian M. McDonough, UNITED
STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
                                     _________________

                                            OPINION
                                     _________________

       LARSEN, Circuit Judge. Isaac Hobbs pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court accepted his plea and, finding
Hobbs to be an armed career criminal, sentenced Hobbs to fifteen years’ imprisonment. See
18 U.S.C. § 924(e). Hobbs appealed. While his appeal was pending, the Supreme Court decided
Rehaif v. United States, which held that, to obtain a conviction under § 922(g), the government
must prove that the defendant “knew he belonged to the relevant category of persons barred from
 No. 19-3343                           United States v. Hobbs                              Page 2


possessing a firearm.” 139 S. Ct. 2191, 2200 (2019). Here, that would require proof that Hobbs
knew he was a felon. Hobbs now challenges the district court’s jurisdiction and the validity of
his plea, basing these claims on Rehaif. Because Rehaif does not support Hobbs’s challenges, we
AFFIRM.

                                                 I.

       Hobbs pleaded guilty on an indictment charging him with violating 18 U.S.C.
§ 922(g)(1), which forbids felons to possess firearms.        The indictment reads, in relevant
part: “[Hobbs], having been previously convicted of crimes punishable by imprisonment for a
term exceeding one year, . . . did knowingly possess in and affecting interstate commerce a
firearm.” The indictment listed three predicate felonies: Assault on a Peace Officer, Attempted
Felonious Assault, and Aggravated Robbery with Firearm Specification. Hobbs had served a
six-year sentence for the aggravated-robbery conviction.

       Hobbs pleaded guilty to the indictment’s charge pursuant to a written plea agreement.
Based on Hobbs’s prior convictions, the district court determined that Hobbs was an armed
career criminal under § 924(e) and sentenced him to the statutory minimum, fifteen years’
imprisonment. Hobbs filed a timely notice of appeal.

       After Hobbs filed his appeal, the Supreme Court decided Rehaif, which held that to
obtain a conviction under § 922(g), “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. This court only recently recognized the latter
mens rea requirement, however, see United States v. Conley, __F. App’x__, 2020 WL 571324, at
*2 (6th Cir. Feb. 5, 2020), so Hobbs’s indictment did not expressly allege it and the district court
did not advise him of it when taking his guilty plea.

       Hobbs now argues that the indictment was deficient because it failed explicitly to allege
that Hobbs knew he was a felon. This indictment defect, he argues, deprived the district court of
jurisdiction over his case and requires that we dismiss the indictment and vacate his conviction
and sentence. In the alternative, Hobbs argues that his plea was not knowing and voluntary
 No. 19-3343                            United States v. Hobbs                             Page 3


because the district court took his plea without informing him that knowledge of his felon status
was an element of the offense. Neither argument has merit.

                                                  II.

       Jurisdictional Challenge. Hobbs first challenges the district court’s jurisdiction. To
establish a § 922(g)(1) violation after Rehaif, the government must show that Hobbs knew the
facts underlying his status. 139 S. Ct. at 2198. That is, the government must prove that Hobbs
knew that he had “been convicted in any court of[] a crime punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 922(g)(1); see also United States v. Bowens, 938 F.3d
790, 797 (6th Cir. 2019), cert. denied sub nom. Hope v. United States, 140 S. Ct. 814 (2020)
(concluding that “in a prosecution under § 922(g)(3)” after Rehaif, the government “must prove
that defendants knew they were unlawful users of a controlled substance, but not . . . that they
knew unlawful users of controlled substances were prohibited from possessing firearms under
federal law”). Hobbs claims that, because the indictment did not allege this knowledge, the
indictment “fail[ed] to charge any federal offense.”        He argues that this indictment defect
deprived the district court of subject matter jurisdiction over his case.

       This argument is foreclosed by the Supreme Court’s decision in United States v. Cotton,
535 U.S. 625 (2002), and by our earlier opinion in United States v. Cor-Bon Custom Bullet Co.,
287 F.3d 576 (6th Cir. 2002). In Cotton, the Supreme Court rejected the argument that failure to
charge a sentence-enhancing drug quantity—an Apprendi element—deprived the court of
jurisdiction, declaring “that defects in an indictment do not deprive a court of its power to
adjudicate a case.” Cotton, 535 U.S. at 630. Before Cotton, our court in Cor-Bon held the same.
There, following a “majority of the circuits,” we “rejected the notion that the failure of an
indictment to allege an element of an offense charged prevents a district court from having
subject-matter jurisdiction.” 287 F.3d at 581.

       Hobbs seeks to distinguish Cotton on the ground that Cotton involved the omission of an
Apprendi element—a sentence-enhancing drug quantity. Even without that element, Hobbs
argues, the indictment in Cotton still charged a federal narcotics offense, just one that carried a
lower penalty. Hobbs contends that his case is different because, without the knowledge element
 No. 19-3343                                 United States v. Hobbs                                     Page 4


demanded by Rehaif, his indictment charged him with no crime at all. That, Hobbs argues,
deprived the court of jurisdiction. We disagree.

        Nothing in Cotton purported to limit its reasoning to the omission of Apprendi elements.
Instead, Cotton broadly rejected “the view that indictment omissions deprive a court of
jurisdiction.” 535 U.S. at 631. Moreover, as Hobbs acknowledges, our own binding decision in
Cor-Bon involved a non-Apprendi element—“the failure of the indictment to allege affirmative
acts of [tax] evasion.” 287 F.3d at 581. Finally, we note that our sister circuits have rejected the
notion that an indictment’s failure to allege the “knowledge-of-status” element required by
Rehaif deprives the court of jurisdiction. See United States v. Balde, 943 F.3d 73, 92 (2d Cir.
2019); United States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). That rule extends to other
mens rea elements as well. See United States v. Ketchen, 877 F.3d 429, 433 n.2 (1st Cir. 2017)
(noting that a “failure adequately to plead scienter in the indictment” is a “non-jurisdictional”
defect); United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (“Brown alleges that the
indictment was defective on its face because Count One did not include the required mens rea, an
essential element of the § 473 crime. . . . [W]e agree with the government that this type of
indictment defect is not jurisdictional.”). To the extent that Hobbs’s indictment may have been
deficient, it did not deprive the district court of jurisdiction.1

        Plea Challenge. Next, Hobbs challenges his plea. He claims that because neither the
indictment, his plea agreement, nor his change-of-plea hearing made any reference to the
knowledge-of-status element, he did not have “notice of the true nature of the charge against
him” and so his plea was not knowing and voluntary. Appellant Br. at 17–18 (quoting Bousley v.
United States, 523 U.S. 614, 618 (1998)). But, as Hobbs acknowledges, he raised no objection
below; we therefore review this challenge for plain error. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).

        To prevail on plain error, Hobbs must identify “an ‘(1) error (2) that was obvious or clear,
(3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.’” United States v. Crawford, 943 F.3d 297, 308 (6th Cir.

        1
          Because Hobbs only challenged the indictment on jurisdictional grounds, we do not otherwise consider its
sufficiency.
 No. 19-3343                           United States v. Hobbs                              Page 5


2019) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)). An error
affects a defendant’s 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, 136 S. Ct. 1338, 1343 (2016) (quoting Dominguez Benitez, 542 U.S. at 76, 82). The
defendant bears the burden of establishing that reasonable probability. Id. Hobbs has not done
so.

       To establish the required prejudice, Hobbs must demonstrate “a reasonable probability
that, but for the [alleged failure to inform him of the knowledge-of-status element], he would not
have entered the plea.” Dominguez Benitez, 542 U.S. at 76. Hobbs candidly acknowledges that
“the record in this case may not reveal as much.” Instead, Hobbs’s reply brief states that he now
“has informed [appellate] counsel that, if the indictment had properly alleged the knowledge-of-
status element, he would have chosen not to plead guilty, but instead, to put the Government to
its burden of proof.” Appellant Reply Br. at 8. That is insufficient. The Supreme Court has
cautioned that “[c]ourts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded,” but “should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct.
1958, 1967 (2017). Here, as Hobbs has acknowledged, no contemporaneous evidence suggests
that he would have rejected the plea deal had the indictment contained the knowledge-of-status
element.

       That is unsurprising. “Put[ting] the Government to its burden of proof,” Appellant Reply
Br. at 8, would have cost Hobbs the potential benefit of his plea without gaining him anything. It
would have been exceedingly easy for the government to prove at trial that Hobbs knew he was a
felon when he committed the firearms offense.         Hobbs had previously been convicted of
aggravated robbery in Ohio and had served six years in prison for that offense. No reasonable
juror could have believed that he did not know he had “been convicted . . . of[] a crime
punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). The
Supreme Court has cautioned that “a defendant facing such long odds will rarely be able to show
prejudice from accepting a guilty plea that offers him a better resolution than would be likely
after trial. . . . Where a defendant has no plausible chance of an acquittal at trial, it is highly
 No. 19-3343                            United States v. Hobbs                              Page 6


likely that he will accept a plea if the Government offers one.” Lee, 137 S. Ct. at 1966. It is true,
of course, that “unusual circumstances” exist. Id. at 1967. And where “contemporaneous
evidence” makes it reasonably probable that the defendant would have opted for trial despite the
long odds, id., “it is no matter that the choice may have been foolish.” Dominguez Benetiz,
542 U.S. at 85. But here, Hobbs admits that no such record exists. He has not shown, therefore,
a reasonable probability that he would not have entered his plea if he had been told of § 922(g)’s
knowledge-of-status requirement.

                                               ***

       For the reasons stated, we AFFIRM the judgment of the district court.
