17-4015
United States v. Keith
                              UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of February, two thousand twenty.

PRESENT:
           JOHN M. WALKER, JR.,
           PIERRE N. LEVAL,
           SUSAN L. CARNEY,
                       Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                         v.                                            No. 17-4015

JEFFREY KEITH, AKA BANGIN J,

           Defendant - Appellant.
_________________________________________

FOR DEFENDANT-APPELLANT:                          STEVEN Y. YUROWITZ, Esq., New York,
                                                  NY.

FOR APPELLEE:                                     CARINA H. SCHOENBERGER, Assistant
                                                  United States Attorney, for Grant C.
                                                  Jaquith, United States Attorney for the
                                                  Northern District of New York, Syracuse,
                                                  NY.
       Appeal from a judgment of the United States District Court for the Northern District
of New York (Kahn, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on December 15, 2017, is
AFFIRMED.

       In July 2017, Jeffrey Keith pleaded guilty without a plea agreement to two counts of
being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
and one count of possession with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 851. In December 2017, the District Court entered a
judgment convicting him and sentencing him primarily to 84 months’ imprisonment.

       The following statement of facts is drawn from the Presentence Investigation Report,
to which Keith did not object and which the District Court adopted. On July 15, 2015, in
Kingston, New York, a confidential informant (CI) met with Keith and asked Keith if he
had a gun for sale. Keith responded that he did. The CI then asked if Keith had drugs for
sale, and Keith said that he would sell the CI 4.5 grams of cocaine as well. Later the same
day, Keith and the CI completed the sale, with Keith giving the CI a paper bag containing
the gun and drugs and taking $900 in cash as payment. About one month later, on August
14, 2015, Keith sold two more firearms to the CI in exchange for $3,100 in cash. We assume
the parties’ familiarity with the other underlying facts, the procedural history, and the
arguments on appeal, to which we refer only as necessary to explain our decision to affirm
the District Court’s judgment.

       On appeal, Keith raises three challenges. First, he argues that, because his indictment
failed to allege that he knew he was a felon when he possessed the firearms, the Supreme
Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), means that the District
Court had no jurisdiction over his prosecution under that indictment. Second, he contends
that his convictions on the two counts of illegal firearm possession are invalid because the
government did not allege, and he did not admit in his plea allocution, that when he
possessed the firearms he knew that he was a felon. Third, he disputes the District Court’s

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addition of four points to his offense level under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a
firearm “in connection with” another felony offense. Keith first raised the two initial
arguments set forth above in a Rule 28(j) letter filed in this Court on July 25, 2019, soon
after the Supreme Court’s decision in Rehaif. See Dkt. No. 100. At the Court’s request, the
parties subsequently briefed the impact of Rehaif on these proceedings.

   1. Jurisdictional Challenge

       Keith argues first that the District Court had no jurisdiction over his prosecution
because the operative indictment failed to allege an offense “against the laws of the United
States.” 18 U.S.C. § 3231. In Rehaif, the Supreme Court held that the knowledge requirement
of 18 U.S.C. § 924(a)(2) applies not only to the element of possession of a firearm, but also
to the provision’s status requirement—that is, the status that renders unlawful the
individual’s possession of a firearm. 139 S. Ct. at 2200. In Keith’s case, the unlawful status is
that of a felon, as set forth in 18 U.S.C. § 922(g)(1): a person “who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one year.” As relevant
here, Keith’s indictment charged as follows: “On or about July 15, 2015, in Ulster County in
the Northern District of New York, the defendant, JEFFREY KEITH, a/k/a ‘Bangin J,’
having been convicted in a court of a crime punishable by a term of imprisonment exceeding
one year, knowingly possessed in and affecting commerce, a firearm.” App’x 8-9. As the
government concedes, the indictment did not separately charge the element required by
Rehaif—Keith’s own knowledge of his felon status.

       Our Court’s recent decision in United States v. Balde, 943 F.3d 73 (2d Cir. Nov. 13,
2019), now forecloses Keith’s jurisdictional argument. In Balde, the government prosecuted
the defendant for illegal possession of a firearm. There, the indictment alleged that the
defendant’s possession was unlawful under 18 U.S.C. § 922(g)(5) because of his status as an
“alien [who was] illegally or unlawfully in the United States.” The defendant in Balde
challenged the court’s jurisdiction to adjudicate the case, making the same argument as does
Keith: that is, that “in failing to allege that he had actual knowledge of [the status that
rendered his possession of a firearm illegal], the indictment failed to allege a federal crime,
and that this defect deprived the district court of jurisdiction.” Balde, 943 F.3d at 88. Relying

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on case law holding that an indictment that specifies a violation of a federal criminal statute,
but does not allege all of the required elements, might be deficient on the merits but does
not cause a jurisdictional problem, we decided that “the indictment’s failure to allege that
[the defendant] knew that . . . [his section 922(g) status] was not a jurisdictional defect.” Id. at
92.

         We see no reason to treat Keith’s prosecution under section 922(g)(1) any differently.
In both cases, the pre-Rehaif indictment charging a violation of 18 U.S.C. § 922(g) sufficed to
endow the district court with jurisdiction. See 18 U.S.C. § 3231. Therefore, that Keith’s
indictment did not include the element required by Rehaif does not affect the District Court’s
jurisdiction over this case. Balde forecloses Keith’s argument here.

      2. Rule 11 Challenge to Guilty Plea

         Second, Keith contends that, for his guilty plea to have been knowing and voluntary
and therefore enforceable, the indictment should have alleged and the plea proceedings
should have made plain that Keith knew of his status as a felon when he unlawfully
possessed the firearms. Keith asserts that the District Court did not “inform [him] of, and
determine that [he] understands . . . the nature of each charge to which [he] is pleading,” as
required by Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure, before accepting
his plea. Keith further contends that the absence in his plea allocution of any admission by
him to the knowledge-of-status element establishes as a matter of law that his plea rested on
an inadequate factual basis, in contravention of Rule 11(b)(3) (“Before entering judgment on
a guilty plea, the court must determine that there is a factual basis for the plea.”).

         Because Keith did not challenge this aspect of his plea in the District Court, we
review the District Court’s actions for plain error. Balde, 943 F.3d at 95. Plain error has four
elements: “(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 96
(internal quotation marks omitted). Additionally, in “the context of plea proceedings, a
defendant must establish that . . . there is a reasonable probability that, but for the error, he



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would not have entered the plea.” Id. (internal quotation marks omitted). To establish plain
error warranting vacatur, Keith must therefore show that, had the District Court explained
the additional element and required Keith to state the factual basis for that element, there is
a “reasonable probability” that Keith would not have entered a plea of guilty. Id.

       Keith has not identified any reason to believe that he would not have pleaded guilty
had he been told that the government would need to prove that he knew he was a felon
when he possessed the firearms. Keith had been convicted in October 2008 of criminal sale
of cocaine and served over two years in prison. The government would have relied on these
fact as overwhelming proof of his awareness that he had “been convicted . . . of a crime
punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1); see also
United States v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019) (affirming section 922(g)(1)
conviction under similar circumstances where there was “no reason to think that the
government would have had any difficulty at all in offering overwhelming proof that [the
defendant] knew that he had previously been convicted of offenses punishable by more than
a year in prison”). These facts distinguish this case from Balde, where “the nature of [the
defendant’s section 922(g)] status [as a possibly unlawfully present alien] was hotly
contested.” Balde, 943 F.3d at 97. In Balde, “we [could not] conclude . . . that the
government’s arguments are so strong that Balde would have had no plausible defense at
trial and no choice but to plead guilty, even had he known of the element announced in
Rehaif.” Id. Here, because the government would have such persuasive proof of Keith’s
awareness that he was a convicted felon, we see no reasonable probability that Keith would
not have entered the plea had the District Court correctly explained the elements of the
offense. Keith’s plain error argument thus fails.

   3. Sentencing Challenge

       Section 2K2.1(b)(6)(B) of the U.S. Sentencing Guidelines mandates a four-point
increase to the otherwise applicable base offense level if the defendant “used or possessed
any firearm or ammunition in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony offense.” The comments to

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this Guidelines section further explain that “[s]ubsection[] (b)(6)(B) . . . appl[ies] if the
firearm or ammunition facilitated, or had the potential of facilitating, another felony
offense.” U.S.S.G. § 2K2.1 cmt. n.14(A). Keith now challenges the court’s application of this
four-point enhancement for his July 15, 2015 sale of both cocaine and a handgun to the CI.

       We review sentences “for abuse of discretion, a standard that incorporates de novo
review of questions of law (including interpretation of the Sentencing Guidelines) and clear-
error review of questions of fact.” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010)
(brackets and internal quotation marks omitted). We review for clear error the District
Court’s factual determination that the record supported finding a “connection” between the
firearm possession and the drug sale sufficient to warrant application of the four-point
enhancement under U.S.S.G. § 2K2.1. United States v. Dodge, 61 F.3d 142, 146 (2d Cir. 1995).

       Keith argues that his sale of the handgun was not made “in connection with,”
U.S.S.G. § 2K2.1(b)(6)(B), his felony offense of possession of cocaine with intent to
distribute under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) & 851, to which he pleaded guilty. He
urges that the tandem sale of the firearm was “merely coincidental” to the drug offense and
that the two acts were unconnected. United States v. Spurgeon, 117 F.3d 641, 644 (2d Cir. 1997)
(“So long as the government proves by a preponderance of the evidence that the firearm
served some purpose with respect to the felonious conduct, . . . [the] ‘in connection with’
requirement is satisfied; conversely, where the firearm’s presence is merely coincidental to
that conduct, the requirement is not met.”).

       During the pendency of Keith’s appeal, however, we decided United States v. Ryan, and
held that a sentencing court “may apply § 2K2.1(b)(6)(B)’s enhancement to a defendant who
sells a firearm and drugs in the same transaction.” 935 F.3d 40, 43 (2d Cir. 2019). In Ryan,
the defendant sold heroin and a shotgun together to a confidential informant for a single
payment of $1,600. Id. at 41-42. We explained that, “because selling firearms and drugs in the
same transaction will normally facilitate both the drug sale and future drug sales, . . . [it] is
enough to trigger the enhancement under § 2K2.1(b)(6)(B).” Id. at 42.




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        The record in Keith’s case adequately establishes that the sales here are fairly treated
as having occurred in “the same transaction” under Ryan. Keith and the CI agreed to both
sales in a single meeting, and, at a subsequent meeting, Keith transferred the firearm and the
cocaine together, in the same bag, at the same time in exchange for a lump sum payment of
$900.

        Following Ryan, we conclude on these facts that the District Court did not abuse its
discretion in applying the four-point enhancement.

                                              * * *

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on December 15, 2017, is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk of Court




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