                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0415n.06

                                          No. 19-3658

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jul 17, 2020
UNITED STATES OF AMERICA,                          )                     DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,
                                                   )
                                                   )       ON APPEAL FROM THE UNITED
v.
                                                   )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
RASHAWN D. WATSON,
                                                   )       OHIO
       Defendant-Appellant.                        )


       BEFORE: MOORE, CLAY, and MURPHY, Circuit Judges.

       MURPHY, Circuit Judge. Federal law prohibits certain categories of individuals from

possessing firearms, including individuals who have been convicted of a felony. 18 U.S.C.

§§ 922(g)(1), 924(a)(2). Before 2019, our court and most others had long held that this law’s

intent element required defendants to know only that they were in possession of a firearm. See,

e.g., United States v. Conley, 802 F. App’x 919, 922 (6th Cir. 2020). In Rehaif v. United States,

139 S. Ct. 2191 (2019), however, the Supreme Court clarified that defendants must additionally

know that they fall within one of the categories of individuals who may not possess firearms. Id.

at 2194. After Rehaif, therefore, those charged with being a felon in possession of a firearm must

know both that they possessed the firearm and that they had previously been convicted of a felony.

       This case arose before Rehaif. Rashawn Watson was indicted for, among other crimes,

being a felon in possession of a firearm. He ultimately pleaded guilty. But neither his indictment
No. 19-3658, United States v. Watson


nor his plea agreement mentioned whether Watson knew of his status as a felon—as is now

required by Rehaif. On appeal, Watson seeks to invoke that decision to overturn his guilty plea.

Because we recently rejected a challenge largely identical to Watson’s, see United States v. Hobbs,

953 F.3d 853, 856–58 (6th Cir. 2020), we affirm.

       Three times in early 2018, Watson sold fentanyl at his tobacco business to a confidential

informant. These controlled buys led investigators to get a warrant to search Watson’s store, truck,

and nearby stash house. Investigators found three firearms, ammunition, and illegal drugs.

       An indictment charged Watson with three drug counts, see 21 U.S.C. § 841(a)(1), with

being a felon in possession of a firearm, see 18 U.S.C. § 922(g), and with possessing a firearm in

furtherance of a drug-trafficking crime, see id. § 924(c)(1).      The felon-in-possession count

specified that Watson had previously been convicted of three felonies and that he knowingly

possessed three firearms and ammunition. This count did not specify that Watson knew that he

had previously been convicted of those felonies.

       In May 2019, shortly before the Supreme Court issued Rehaif, Watson pleaded guilty to all

five counts. His plea agreement did not require him to admit that he knew of his felon status, but

he did admit that he knowingly possessed the firearms and ammunition. During the plea colloquy,

the district court likewise did not ask Watson to admit that he knew of his status as a felon at the

time that he possessed the firearms.

       At sentencing, the district court found that Watson qualified as a career offender under

U.S.S.G. § 4B1.1. This career-offender designation meant that Watson’s guidelines range was

262 to 327 months in prison. Varying substantially downward from that range, the district court

sentenced Watson to 190 months in prison, followed by six years of supervised release. Although




                                                 2
No. 19-3658, United States v. Watson


Watson’s sentencing occurred after Rehaif, he never asserted any type of Rehaif claim in the

district court.

        On appeal, Watson challenged both his career-offender enhancement and his felon-in-

possession conviction. We have already granted the government’s motion to dismiss Watson’s

career-offender claim because his plea agreement included an appeal waiver that barred him from

asserting it. See United States v. Watson, No. 19-3658 (6th Cir. Mar. 3, 2020) (order). We thus

need only consider Watson’s Rehaif arguments. He contends that Rehaif requires us to vacate his

felon-in-possession conviction for both jurisdictional and merits reasons. After Watson filed his

opening brief, our decision in Hobbs rejected the same types of arguments. 953 F.3d at 856–58.

Hobbs leads us to affirm in this case too.

        1. Jurisdictional Challenge. According to Watson, the indictment’s failure to allege the

Rehaif-required element (that he knew of his status as a felon) deprived the district court of

jurisdiction to convict him of a felon-in-possession offense. Not so. Based on United States v.

Cotton, 535 U.S. 625 (2002), Hobbs already explained why a missing element in an indictment

does not affect a federal court’s subject-matter jurisdiction. See 953 F.3d at 856–57. The Supreme

Court has repeatedly clarified in recent decades that the word “jurisdiction” has a narrow domain,

referring to “the courts’ statutory or constitutional power to adjudicate the case.” Cotton, 535 U.S.

at 630 (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)); see, e.g., Eberhart

v. United States, 546 U.S. 12, 16 (2005) (per curiam). Consistent with this caselaw, Cotton held

that “defects in an indictment” are not jurisdictional because they do not deprive courts of their

power to adjudicate a criminal case. 535 U.S. at 630. That power instead arises from a federal

statute that gives district courts jurisdiction over “all offenses against the laws of the United

States.” 18 U.S.C. § 3231; see Cotton, 535 U.S. at 630–31.



                                                  3
No. 19-3658, United States v. Watson


       Hobbs applied Cotton’s logic to a defective felon-in-possession indictment that omitted

Rehaif’s knowledge-of-status element. 953 F.3d at 856–57. When doing so, Hobbs recognized

that other courts had “rejected the notion that an indictment’s failure to allege the ‘knowledge-of-

status’ element required by Rehaif deprives the court of jurisdiction.” Id. (citing United States v.

Balde, 943 F.3d 73, 92 (2d Cir. 2019); United States v. Burghardt, 939 F.3d 397, 402 (1st Cir.

2019)). Since Hobbs, courts have continued to reject this notion. See United States v. Maez, 960

F.3d 949, 956 (7th Cir. 2020); United States v. Espinoza, __ F. App’x __, 2020 WL 2844542, at

*1 (9th Cir. June 1, 2020) (mem.); United States v. Moore, 954 F.3d 1322, 1332–37 (11th Cir.

2020). Just as in Hobbs and these many other cases, any deficiency in Watson’s indictment “did

not deprive the district court of jurisdiction.” 953 F.3d at 857.

       In response, Watson asks us to revisit Hobbs. But a panel of this court may not overrule a

previous panel’s published opinion. Watson should direct any disagreement with Hobbs to our en

banc court, see, e.g., Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985),

and he should direct any disagreement with Cotton to the Supreme Court, see, e.g., Agostini v.

Felton, 521 U.S. 203, 237 (1997).

       2. Merits Challenge. Watson makes two Rehaif arguments on the merits. He initially

asserts that the indictment’s failure to allege Rehaif’s knowledge-of-status element rendered it

defective because indictments must include all elements of an offense. See United States v.

Resendiz-Ponce, 549 U.S. 102, 107 (2007). Watson next argues that his plea was unknowing and

involuntary (and so unconstitutional) because the district court failed to inform him of this element

and to ensure he knew of his status as a felon when he possessed the firearms. See Bousley v.

United States, 523 U.S. 614, 618–19 (1998).




                                                  4
No. 19-3658, United States v. Watson


       Watson did not raise these arguments in the district court, so we review them for plain

error. See Hobbs, 953 F.3d at 857; Conley, 802 F. App’x at 922; see also Maez, 960 F.3d at 957.

To prevail on plain-error review, Watson 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.’” Hobbs, 953 F.3d at 857 (citation omitted). As we did in

Hobbs, we will resolve Watson’s claims on the third (prejudice) prong of this plain-error test. “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.” Id. (quoting Molina-Martinez v.

United States, 136 S. Ct. 1338, 1343 (2016)) (internal quotation marks omitted). This test thus

requires Watson to show “a reasonable probability that, but for the alleged failure to inform him

of [Rehaif’s] knowledge-of-status element, he would not have entered the plea.” Id. (quoting

United States v. Dominguez-Benitez, 542 U.S. 74, 76 (2004)) (alteration omitted). A defendant

may satisfy this burden by pointing to “contemporaneous evidence suggest[ing] that he would have

rejected the plea deal[.]” Id.

       Watson does not make this showing. On appeal, he has not even argued that he would have

stood trial if the government had to prove that he knew of his felon status, nor has he pointed to

any contemporaneous evidence suggesting that he would have done so. Moreover, as in Hobbs,

“[p]utting the government to its burden of proof would have cost [Watson] the potential benefit of

his plea without gaining him anything.” Id. at 858 (alteration and citation omitted). Thus, he does

not show a reasonable probability that the outcome of the proceeding would have been different

absent the Rehaif error.

       Watson’s response does not change things. He cites a footnote from Dominguez-Benitez

suggesting that an unconstitutional guilty plea without a plea colloquy explaining the rights that a



                                                 5
No. 19-3658, United States v. Watson


defendant was waiving could not “be saved even by overwhelming evidence that the defendant

would have pleaded guilty regardless.” 542 U.S. at 84 n.10 (discussing Boykin v. Alabama, 395

U.S. 238, 243 (1969)). Relying on this footnote, the Fourth Circuit has held that a district court’s

failure to notify a defendant of Rehaif’s knowledge-of-status element at a plea hearing qualifies as

“structural error” that automatically meets the plain-error test’s prejudice prong. See United States

v. Gary, 954 F.3d 194, 202–07 (4th Cir. 2020). In Hobbs, however, we held that a defendant who

pleads guilty must show prejudice from a district court’s failure to explain Rehaif’s knowledge-

of-status element. See 953 F.3d at 857–58. We nowhere suggested that such a failure could qualify

as structural error. Id.; cf. Ruelas v. Wolfenbarger, 580 F.3d 403, 410–11 (6th Cir. 2009); United

States v. Stewart, 306 F.3d 295, 318–23 (6th Cir. 2002). Watson’s argument is incompatible with

Hobbs.

         In addition, most other circuit courts agree with Hobbs’s approach. Several have expressly

rejected the argument that a district court’s failure to notify a defendant of Rehaif’s knowledge-of-

status element at a plea hearing counts as structural error. See, e.g., United States v. Coleman, 961

F.3d 1024, 1028–30 (8th Cir. 2020); United States v. Trujillo, 960 F.3d 1196, 1201–08 (10th Cir.

2020); United States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020). Others have, like Hobbs, rejected

Rehaif arguments under the prejudice prong of the plain-error test. See United States v. McLellan,

958 F.3d 1110, 1120 (11th Cir. 2020); United States v. Williams, 946 F.3d 968, 973–74 (7th Cir.

2020); Burghardt, 939 F.3d at 403–05.

         We affirm.




                                                 6
