                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1588
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Tracy Arlene Smith

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Western District of Missouri - Joplin
                                 ____________

                            Submitted: April 20, 2020
                              Filed: May 5, 2020
                                [Unpublished]
                                ____________

Before BENTON, KELLY, and GRASZ, Circuit Judges.
                           ____________

PER CURIAM.

     Tracy Smith appeals after a jury found her guilty of being a felon and an
unlawful user of a controlled substance in possession of a firearm and ammunition,
and the district court1 sentenced her under the Armed Career Criminal Act (ACCA)
to 235 months in prison. Her counsel moved for leave to withdraw and filed a brief
under Anders v. California, 386 U.S. 738 (1967), challenging the substantive
reasonableness of Smith’s sentence. In a pro se brief, Smith challenged her ACCA
sentence. We denied counsel’s motion to withdraw and ordered supplemental
briefing addressing whether, in light of Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019) (holding, for felon-in-possession offense, the government must prove a
defendant knew she belonged to category of persons barred from possessing a
firearm), the district court plainly erred by failing to instruct the jury to find that
Smith knew she was a felon.2

       We conclude any error in the jury instructions did not affect Smith’s substantial
rights, because the government presented evidence from which the jury could have
inferred Smith knew of her prohibited status as both a felon and a drug user. See
United States v. Fast Horse, 747 F.3d 1040, 1041–44 (8th Cir. 2014) (reviewing for
plain error where party fails to timely object to jury instruction; under plain-error
review, this court may reverse if a defendant shows error, that was plain, affected his
substantial rights, and seriously affects fairness, integrity, or public reputation of
judicial proceedings); see also United States v. Warren, 951 F.3d 946, 951 (8th Cir.
2020) (concluding, after Rehaif, any error in failing to instruct jury to find a defendant
knew he was felon did not affect the defendant’s substantial rights where jury could
have inferred knowledge from the defendant’s flight from scene as well as stipulation
he was felon at time of offense).

      1
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
      2
        In his Anders brief, Smith’s counsel practically asks us to reject Smith’s Rehaif
argument. We caution counsel against unintentionally aiding the prosecution, but our
decision to affirm Smith’s conviction was unaffected by counsel’s doubts about the
Rehaif argument. See Anders, 386 U.S. at 744 (“[Counsel’s] role as advocate requires
that he support his client’s appeal to the best of his ability.”).

                                           -2-
       As to Smith’s arguments, we conclude the district court did not err in
sentencing her as an armed career criminal. See 18 U.S.C. § 924(e) (felon in
possession who has three previous convictions for a “serious drug offense” or a
“violent felony” shall be imprisoned not less than 15 years); United States v.
Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (reviewing de novo ACCA
classification); see also United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008)
(concluding convictions for separate drug transactions on separate days are multiple
ACCA predicate offenses, even if transactions were sales to same person). Contrary
to Smith’s contentions, the First Step Act of 2018 neither amends § 924(e)’s “serious
drug offense” or “violent felony” definitions nor imposes a limitations period for
ACCA predicate convictions. See First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194 (2018) (amending definitions within the Controlled Substances Act and
imposing a limitations period for predicate drug offenses under 21 U.S.C. § 841(b)).
And while U.S.S.G. § 4A1.2(e) imposes a limitations period on counting prior
sentences toward a defendant’s criminal history for sentencing purposes, Smith’s
ACCA predicate offenses falling outside that period did not count toward her criminal
history. Finally, we conclude Smith’s sentence is not substantively unreasonable.
See United States v. Feemster, 572 F.3d 455, 461–62 (8th Cir. 2009) (en banc)
(reviewing sentence under deferential abuse-of-discretion standard and discussing
substantive reasonableness).

      Accordingly, the judgment is affirmed and we now grant counsel leave to
withdraw.
                     ______________________________




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