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

                                                                          FILED
                                    No. 19-30161                      May 22, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

RODNEY LAVALAIS, also known as Whyte Lavalais,

             Defendant - Appellant




               Appeal from the United States District Court for
                      the Eastern District of Louisiana


Before SMITH, GRAVES, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Convicted felons are prohibited from possessing firearms—and anyone
who “knowingly violates” this prohibition may be imprisoned up to 10 years.
18 U.S.C. §§ 922(g)(1), 924(a)(2). The Supreme Court recently construed these
provisions to require, for the first time, that the prosecutor prove not only that
the felon knows he is possessing a firearm—but that the felon also knows he is
a convicted felon. See Rehaif v. United States, 139 S. Ct. 2191 (2019).
      Prior to Rehaif, countless felons pleaded guilty under § 922(g)(1) without
ever objecting that the Government should be required to prove they knew they
were convicted felons. Accordingly, it is undisputed that they must overcome
plain error review if they wish to object now under Rehaif for the first time on
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appeal. See FED. R. CRIM. P. 52(b). That is, the defendant must prove not only
that the court plainly erred, but that the error “affected his substantial rights,
i.e., caused him prejudice”—typically, by “affect[ing] the outcome of the district
court proceedings”—and that the error “seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings.” Puckett v. United States,
556 U.S. 129, 133, 135 (2009) (quotations omitted).
      The circuits are already split over how Rehaif claims should be analyzed
for plain error. The Fourth Circuit has held that Rehaif error is structural
error, warranting reversal even in the absence of evidence of prejudice. See
United States v. Gary, 954 F.3d 194, 203 (4th Cir. 2020). But we have held the
opposite—that defendants must show that any error under Rehaif actually
prejudiced the outcome. See United States v. Hicks, __ F.3d __ (5th Cir. May
8, 2020).
      Demonstrating prejudice under Rehaif will be difficult for most convicted
felons for one simple reason: Convicted felons typically know they’re convicted
felons. And they know the Government would have little trouble proving that
they knew. So it is hard to imagine how their conviction or guilty plea was
prejudiced by any error under Rehaif. As Justice Alito put it: “Juries will
rarely doubt that a defendant convicted of a felony has forgotten that
experience, and therefore requiring the prosecution to prove that the defendant
knew that he had a prior felony conviction will do little for defendants.” Rehaif,
139 S. Ct. at 2209 (Alito, J., dissenting).
      This case is no exception. Accordingly, we affirm.
                                         I.
      Police officers in Kenner, Louisiana conducted a sting operation on an
illegal prostitution business.    They located the contact information for an
escort, Chyna, and arranged a meeting with her. An undercover detective met
with Chyna and gave her $300 for her services. But before the police could
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arrest her, Chyna fled in a silver Ford Explorer. So the detectives wrote down
the license plate number of the car. And they later determined that the Ford
Explorer was rented from Avis—by Rodney Lavalais.
        The officers set up a second meeting with Chyna.             That time, they
arrested her as well as her driver—Lavalais. The officers then executed a
search warrant on the vehicle and found a loaded Glock pistol near the driver’s
seat.
        Detectives subsequently learned that the Glock was purchased not by
Lavalais, but by another individual. That person had also rented a car from
Avis.    But the renter let Lavalais drive the rental car, while leaving her
belongings in the car—including her Glock. Lavalais never returned either the
car or the Glock to her.
        Avis later found the vehicle at the address listed on Lavalais’s Louisiana
identification. When Avis contacted the renter to inform her that the company
had found her rental car, she asked if Avis had also found her Glock. In her
email to Avis, she asked “if [the Glock] was recovered”—and stated that “if not
I have to file a police report that it is missing.”
        Lavalais pleaded guilty for being a convicted felon in possession of a
firearm under 18 U.S.C. § 922(g)(1). He signed a factual resume admitting
that he possessed a firearm, that the firearm traveled in and affected interstate
commerce, and that he had been convicted of a felony in 2008.                  At his
rearraignment, the district court recited the elements of the offense, stating
that the Government would need to prove (1) that he knowingly possessed a
firearm; (2) that he had been convicted of a crime punishable by a term of
imprisonment greater than one year prior to that possession; and (3) and that
the firearm traveled in or affected interstate commerce—but not, as Rehaif
now requires, that he knew he was a convicted felon at the time he possessed
the firearm. Lavalais stated that he understood the charges and elements.
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The judge read the factual basis into the record, and Lavalais admitted those
facts were true.
      The presentence report assigned Lavalais a base offense level of 14.
U.S.S.G § 2K2.1(a)(6)(A). The PSR applied a two-level increase because the
firearm was stolen, U.S.S.G. § 2K2.1(b)(4)(A); a four-level enhancement for
using the gun while engaging in the activity of another felony—commercial sex
trafficking, U.S.S.G. § 2K2.1(b)(6)(B); and a three-level reduction for
acceptance of responsibility, U.S.S.G. § 3E1.1(a), (b). That added up to a total
offense level of 17. The PSR also found a criminal history category of III,
leading to an advisory Guidelines range of 30 to 37 months in prison.
      Lavalais objected to the PSR on multiple grounds. First, he argued the
firearm was not stolen. He also objected to the four-level enhancement for
using a firearm while in commission of sex trafficking.
      After Lavalais’s objection, the Government sought and received a two-
level increase for obstruction of justice. With a total offense level of 19 and a
criminal history category of III, the advisory guidelines range was 37 to 46
months.    The Government then sought an upward departure due to the
seriousness of his offense, the number of his previous arrests, and the
circumstances of his most recent arrest, as well as to reflect his disrespect for
the law, his danger to the community, and the nature of his crime, and to
protect the community from further crimes. The probation officer updated his
criminal history category, first to category VI, and then to category V, resulting
in a Guidelines range of 57 to 71 months.
      The district court alerted Lavalais that it was considering an upward
departure under U.S.S.G. § 4A1.3(a), or alternatively, an upward variance, for
reasons set forth in 18 U.S.C. § 3553(a).
      At sentencing, Lavalais again raised his objections to the PSR. The
district court agreed that the four-level enhancement was not warranted. It
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then determined that the Government had established by a preponderance of
the evidence that Lavalais intended to deprive the firearm’s true owner of her
Glock, so it kept the two-level enhancement for the stolen firearm. The court
also applied the obstruction enhancement. With a total offense level of 15 and
a criminal history category of V, the advisory Guidelines range was 37 to 46
months.
      The district court then determined that a sentence above the advisory
Guidelines range was necessary. On that basis, the court concluded a base
offense level of 22 and criminal history category of VI provided an appropriate
Guidelines range—and settled on a sentence of 105 months, followed by three
years of supervised release. The court explained that, even if it erred in
imposing an upward departure under § 4A1.3, it would have ordered a non-
Guidelines sentence identical to the one imposed.          In the alternative, it
imposed the same sentence by way of an upward variance under § 3553(a).
      Lavalais objected to the sentence as unreasonable and brought this
timely appeal.
                                       II.
      Because Lavalais did not preserve his challenge to the validity of the
guilty plea, we review for plain error. United States v. Vonn, 535 U.S. 55, 59
(2002). 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. If
those conditions are met, the court may exercise its discretion to grant relief if
(4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Johnson v. United States, 520 U.S. 461, 466–67 (1997).
The defendant has the burden to demonstrate that all four prongs of plain error
review are met. United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015).
      To the extent Lavalais argues his indictment is fatally defective because
it did not contain an element of the offense under § 922(g), he failed to preserve
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that claim by pleading guilty. Class v. United States, 138 S. Ct. 798, 804–05
(2018); United States v. Daughenbaugh, 549 F.3d 1010, 1012–13 (5th Cir.
2008). Unpreserved errors concerning the plea colloquy under Federal Rule of
Criminal Procedure 11(b) are reviewed for plain error. United States v. Davila,
569 U.S. 597, 609–11 (2013).
      This court reviews errors in interpreting and applying the sentencing
guidelines de novo. United States v. White, 465 F.3d 250, 252 (5th Cir. 2006).
Factual findings are reviewed for clear error. United States v. Alfaro, 919 F.2d
962, 966 (5th Cir. 1990). We review the reasonableness of a sentencing decision
for abuse of discretion. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008).
                                        III.
      After Lavalais pleaded guilty, 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 some other person covered by § 922(g)). Rehaif, 139 S. Ct. at 2194. At the
time of Lavalais’s plea, by contrast, the district court did not list that
knowledge requirement as an element—consistent with the precedent of our
circuit and every other circuit at the time, see id. at 2210 (Alito, J., dissenting)
(collecting cases).
      Rehaif applies to cases on direct appeal, such as this case. Griffith v.
Kentucky, 479 U.S. 314, 328 (1987). And the Government concedes that failure
to inform Lavalais of the knowledge element as required in Rehaif is an obvious
error. So the issue is whether Lavalais can satisfy both the third and fourth
prongs of plain error review. He cannot.
      Lavalais cannot show how the Rehaif error affected his substantial
rights—that is, he cannot demonstrate “a reasonable probability that, but for
[the error claimed], the result of the proceeding would have been different.”
United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (quotations
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omitted). That is because, as we held in Hicks, Lavalais cannot show “there is
a reasonable probability that he would not have pled guilty had he known of
Rehaif.” __ F.3d at __.
      In his factual basis, Lavalais admitted that he was a felon convicted of a
crime punishable by more than one year.         He admitted this again at his
rearraignment. And the PSR listed his prior felony offense and its two-year
sentence. Moreover, there is no indication anywhere in the record—nor does
he bother to suggest on appeal—that his prior felony conviction was somehow
new information that he did not know at the time he possessed the firearm, or
that the absence of this information in any way impacted his decision to plead
guilty. Indeed, if anything there is evidence to the contrary—the PSR observed
that, shortly after his arrest for unlawful possession of a firearm by a felon,
Lavalais asked Chyna to claim (falsely) that she owned the gun. Why would
he do that? Presumably because he knew full well that he was a convicted
felon prohibited from possessing a firearm. As in Hicks, the evidence here is
“overwhelming that” Lavalais “knew he was a felon when he possessed the
firearm[] at issue.” __ F.3d at __.
      The Fourth Circuit has held that none of this should matter, because we
should treat Rehaif error as structural error, thereby alleviating Lavalais of
the burden to demonstrate prejudice. We rejected this proposition in Hicks. In
doing so, we of course acknowledge that the Supreme Court has recognized
three narrow categories of “structural error,” requiring “automatic reversal
without any inquiry into prejudice”: (1) when “the right at issue is not designed
to protect the defendant from erroneous conviction but instead protects some
other interest,” (2) when the error’s effects are “simply too hard to measure”—
for example, when a criminal defendant is denied the right to select his own
attorney, and (3) when “the error always results in fundamental unfairness”—
such as when “an indigent defendant is denied an attorney.”           Weaver v.
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Massachusetts, 137 S. Ct. 1899, 1905–08 (2017). We see no basis for fitting
Rehaif error into any of these categories, and Lavalais articulates none.
      For its part, the Fourth Circuit justified its treatment of Rehaif error as
structural by invoking two Supreme Court cases that found a guilty plea to be
invalid—Bousley v. United States, 523 U.S. 614 (1998), and Henderson v.
Morgan, 426 U.S. 637 (1976). Gary, 954 F.3d at 203. But neither Bousley nor
Henderson even mentions structural error in their analyses. Nor did the Court
cite either case in its survey of structural error cases in Weaver. 137 S. Ct. at
1908. Gary tries to fit Rehaif error into Weaver’s second category of structural
error—when an error’s effects are too hard to measure. 954 F.3d at 206. We
disagree. Indeed, the Fourth Circuit gets the analysis exactly backwards. If
the effects of Rehaif error are too hard to measure, it’s because it’s almost
always harmless—because convicted felons typically know they’re convicted
felons.
      And there’s also the matter of the fourth and final prong of plain error
review. Any error under Rehaif does not remotely—let alone seriously—affect
the fairness, integrity, or public reputation of judicial proceedings. As we said
in Hicks: “We see nothing unfair about affirming [a defendant’s] conviction
when the record contains substantial evidence that he knew of his felon
status.” __ F.3d at __. “[W]e cannot say that upholding [the] conviction would
adversely affect the public reputation of the judicial proceedings even if he had
demonstrated that the failure to inform him of the knowledge of felon status
requirement was prejudicial.” Id.
      It is difficult to reconcile the Fourth Circuit’s contrary ruling in Gary
with the requirements of plain error review, as repeatedly articulated by the
Supreme Court and as codified in Federal Rule of Criminal Procedure 52(b).
Indeed, the Supreme Court has expressly “cautioned” courts against creating
any “exception” to the requirements of Rule 52(b)—“an exception which we
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have no authority to make.”       Johnson, 520 U.S. at 466.      Respect for the
requirements of plain error review forecloses the path taken by the Fourth
Circuit in Gary.
                                       IV.
      We now turn to, and reject, Lavalais’s various challenges to his sentence.
                                        A.
      A defendant’s offense level is increased by two if “any firearm [] was
stolen.” U.S.S.G. § 2K2.1(b)(4)(A). The Guidelines do not define the term
“stolen,” and the Fifth Circuit has not previously addressed the issue. But
other circuits have. See United States v. Colby, 882 F.3d 267, 272 (1st Cir.
2018) (defining “stolen” broadly); United States v. Bates, 584 F.3d 1105, 1109
(8th Cir. 2009) (“Considering the context of § 2K2.1(b)(4), we conclude that it
likewise requires a broad interpretation of ‘stolen.’”); United States v. Jackson,
401 F.3d 747, 748–50 (6th Cir. 2005) (defining “stolen” broadly). Consistent
with the precedents of these other circuits, we hold that the firearm unlawfully
possessed by Lavalais was indeed “stolen” for purposes of the Sentencing
Guidelines.
      Lavalais contends that the gun was only “missing, not stolen.” But he
took the firearm knowing he was not its rightful owner and made no attempt
to return it. The district court properly found that to be sufficient to establish,
by a preponderance of the evidence, that Lavalais intended to deprive the
owner of the rights and benefits of owning the gun. See also Jackson, 401 F.3d
at 750. He took the Glock from the car without permission and did not let its
true owner know of its whereabouts. After Avis recovered the missing vehicle,
the gun owner emailed Avis because she was worried that her gun had been
stolen. There is no evidence that Lavalais ever asked her for permission to
possess the firearm, or that she ever gave such permission. To the contrary,


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after his arrest, Lavalais asked another person, Chyna, to falsely claim that
she owned the Glock.
      Lavalais’s intended deprivation of the rights and benefits of ownership
of the gun deems the firearm “stolen” for purposes of the Sentencing
Guidelines. See, e.g., Jackson, 401 F.3d at 748–49. Accordingly, we affirm the
two-level sentencing enhancement imposed by the district court.
                                        B.
      Lavalais claims that his sentence is both procedurally and substantively
unreasonable.
      Our court recognizes three types of reasonable sentences: (1) a sentence
within the guidelines range; (2) a departure based on the guidelines; and (3) a
non-guidelines sentence or variance based on the § 3553(a) factors. United
States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).               In assessing
reasonableness on appeal, the court first must find no significant procedural
error by the district court. Id.; see Gall v. United States, 552 U.S. 38, 51 (2007).
If there is no procedural error, the court may then review the substantive
reasonableness of the sentence. Cisneros-Gutierrez, 517 F.3d at 764; see Gall,
552 U.S. at 51.
      A district court may consider many factors when determining whether
an upward departure is appropriate under § 4A1.3, such as whether “the
defendant has been afforded extreme leniency by a sentencing court,” United
States v. Lee, 358 F.3d 315, 328 (5th Cir. 2004), and a defendant’s “lack of
deterrence[] and continued criminal activity,” United States v. Vargas-Soto,
700 F.3d 180, 184 (5th Cir. 2012).
      The district court was well aware of Lavalais’s continuous criminal
history. It detailed his extensive crimes since he was twenty-one years old,
and specifically called for a harsher sentence to ensure the safety of the
community. The PSR includes convictions of knowingly proffering false ID to
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purchase a firearm at the age of twenty-one; possession of marijuana and drug
paraphernalia at the age of twenty-four; soliciting prostitutes at the age of
thirty; and, also at thirty, simple assault, theft, battery and violating a
protective order on a dating partner. The present case resulted from events
soon after. Continuous criminal activity may justify an upward departure
under § 4A1.3. See id.
      The longest sentence imposed on Lavalais for his various convictions is
the 105-month sentence in this case. His conclusory assertion that the district
court misconstrued his prior sentences as too lenient gives no legal basis for
relief. See Lee, 358 F.3d at 328–29.
      Even if the upward departure was improper, the error is harmless
because the heightened sentence was imposed as a variance as well. See
United States v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).
      We next assess whether his sentence was substantively reasonable. Our
“review for substantive reasonableness is highly deferential, because the
sentencing court is in a better position to find facts and judge their import
under the § 3553(a) factors with respect to a particular defendant.” United
States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (cleaned up). A sentence is
substantively unreasonable if it does not account for a factor that should have
received significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing
sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      Lavalais’s sentence is substantively reasonable.          In imposing the
sentence, the district court specifically considered the § 3553(a) factors. It also
stated that the sentence was based on the underrepresentation of the
seriousness of the circumstances of this offense and the likelihood that the
defendant would commit more crimes.


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      The Fifth Circuit has upheld an upward variance on the need to deter
future criminal conduct and to protect the public. United States v. Fraga, 704
F.3d 432, 439–41 (5th Cir. 2013). And it has upheld departures of similar or
greater magnitudes. See, e.g., Brantley, 537 F.3d at 348–50 (affirming an
upward departure or variance of 180 months on a top-guidelines range of 51
months). Nothing in the record demonstrates the district court abused its
discretion in this case in imposing the 105-month sentence. See Diehl, 775
F.3d at 724–25.
                                    ***
      For the foregoing reasons, we affirm.




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