18-2033-cr
United States v. Johnson

                                  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 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 9th day of July, two thousand twenty.

PRESENT:             JOSÉ A. CABRANES,
                     GERARD E. LYNCH,
                                  Circuit Judges. *


UNITED STATES OF AMERICA,

                             Appellee,                                18-2033-cr

                             v.

KEWON D. JOHNSON, AKA KEWON JOHNSON,

                             Defendant-Appellant.


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.




     Judge Christopher F. Droney, who was initially assigned to the panel in this case, retired from
     *

the Court, effective January 1, 2020. The remaining two members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v.
Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).

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FOR DEFENDANT-APPELLANT:                                    Molly K. Corbett, James P. Egan,
                                                            Assistant Federal Public Defenders, for
                                                            Lisa A. Peebles, Federal Public Defender
                                                            for the Northern District of New York,
                                                            Albany, NY.

        Appeal from a July 6, 2018 conviction of the United States District Court for the Northern
District of New York (Thomas J. McAvoy, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
VACATED AND REMANDED.

         Defendant-Appellant Kewon D. Johnson (“Johnson”) appeals his conviction under 18
U.S.C. § 922(g) in light of the Supreme Court’s ruling in Rehaif v. United States, 139 S. Ct. 2191
(2019). 1 In Rehaif, the Supreme Court concluded that the “status element” of 18 U.S.C. § 922(g)
contains a scienter requirement, so that a defendant may be convicted under the statute of
knowingly possessing a firearm only if he also “knew he belonged to the relevant category of
persons barred from possessing a firearm.” Id. at 2200. Johnson, who pleaded guilty to violating 18
U.S.C. § 922(g), argues that his indictment did not contain this “knowledge of status” element, nor
did the District Court articulate it during his plea hearings. He argues that he therefore did not plead
guilty to knowing that he belonged to the relevant category of persons barred from possessing a
firearm—in his case, the category of persons “who ha[ve] been convicted in any court of[ ] a crime
punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Accordingly,
Johnson asks this Court to either: (1) dismiss the indictment, because its defect deprived the District
Court of jurisdiction; or (2) vacate the conviction, because the District Court did not give Johnson
proper notice of the elements of the crime or find a proper factual basis for his guilt. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

        (1) Subject Matter Jurisdiction

        Johnson first contends that the District Court lacked subject matter jurisdiction over the
prosecution because the indictment—which did not expressly state the “knowledge of status”
element—was defective. Lack of subject matter jurisdiction may be raised in the first instance on
appeal, as Johnson raises it here. See United States v. Leon, 203 F.3d 162, 164 n.2 (2d Cir. 2000).



    1
      Johnson also contends that the District Court erred in sentencing. However, since we
determine that his conviction should be vacated, we need not address his sentencing challenges at
this time.

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          We addressed this same jurisdictional challenge to a § 922(g) indictment post-Rehaif in United
States v. Balde, 943 F.3d 73 (2d Cir. 2019), and found it unavailing. The Court in Balde noted that “an
indictment that does not clearly indicate that the defendant is required to know he or she is in a
prohibited category may be deficient in some way . . . , but its absence does not mean that the
indictment fails to allege a federal offense in the sense that would speak to the district court’s power
to hear the case.” Id. at 90-91. Accordingly, we held that “the indictment’s failure to allege that
[defendant] knew [his status] was not a jurisdictional defect.” Id. at 92. For this reason, we reject
Johnson’s argument that the District Court lacked subject matter jurisdiction over his prosecution.
As in Balde, the indictment sufficiently alleged the § 922(g) offense to give the District Court power
to hear his case.

        (2) Guilty Plea

         Johnson next argues that, even if there was subject matter jurisdiction, his guilty plea was
invalid because the District Court violated its various obligations under Federal Rule of Criminal
Procedure 11: it failed to properly explain to him all of the elements of the crime to which he was
pleading, in violation of Rule 11(b)(1)(G), and it failed to find a factual basis for all of the elements
of the crime, in violation of Rule 11(b)(3). Because Johnson did not object to the validity of his
guilty plea in the District Court, we review his non-jurisdictional challenge for plain error. Id. at 95.
“Under the plain error standard, an appellant must demonstrate that (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.” United States v. Bastian, 770 F.3d 212, 219-20 (internal quotation
marks omitted). In the context of reviewing guilty pleas, the third prong of the plain error analysis is
especially important: even where we find error that is clear or obvious, we will only find that a
defendant’s substantial rights were “affected” when there is “a reasonable probability that, but for
the error, [defendant] would not have entered the plea.” United States v. Vaval, 404 F.3d 144, 151 (2d
Cir. 2005).

        We address each prong in turn and conclude all four are met.

        a. There is error . . .

                As we squarely noted in Balde, “the failure of the district court to advise [defendant]
            that the government would need to establish beyond a reasonable doubt at trial that he
            knew [his status under 18 U.S.C. § 922(g)], or to examine the record to determine
            whether there was a factual basis for finding such knowledge, [is] error.” 943 F.3d at 96.
            The failure to advise violates Rule 11(b)(1)(G) and the failure to find a factual basis
            violates Rule 11(b)(3). Because the District Court here neither advised Johnson that the
            Government would need to establish beyond a reasonable doubt that he knew he was a


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    felon, nor examined the record to determine whether there was a factual basis for such
    knowledge, there was error.

b. . . . that is clear or obvious . . .

         Moreover, as we also concluded in Balde, such error rises to the level of clear error
    when it is “so egregious and obvious that a trial judge and prosecutor would be derelict
    in permitting it in a trial held today.” Id. at 97. Although the able District Court judge
    conducted the plea proceeding in accord with the law as it was understood at that time, it
    is well established that the question of “[w]hether an error is ‘plain’ is determined by
    reference to the law as of the time of appeal.” United States v. Garcia, 587 F.3d 509, 520
    (2d Cir. 2009); see also Johnson v. United States, 520 U.S. 461, 468 (1997) (same). The errors
    by the District Court here rose to the level of clear error because, after Rehaif, a trial
    judge and prosecutor would not permit them during Rule 11 proceedings.

c. . . . that affected appellant’s substantial rights . . .

        As noted above, a defendant’s substantial rights are “affected” in a Rule 11
    proceeding when there is a “reasonable probability” that, but for the clear error, he
    would not have pleaded guilty. Put another way, “[a] defendant must . . . satisfy the
    judgment of the reviewing court, informed by the entire record, that the probability of a
    different result is sufficient to undermine confidence in the outcome of the proceeding.”
    United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal quotation marks
    omitted).

        Johnson contends we can find no basis in the record to conclude that he would have
    pleaded guilty had he been made aware of the “knowledge of status” requirement of 18
    U.S.C. § 922(g) or had the District Court looked for a factual basis of the “knowledge of
    status” element. But for these clear errors, he says, there would have been a different
    result. The Government counters, arguing that there is, in fact, some basis in the record
    to conclude that he would have pleaded guilty anyway.

         In suggesting that Johnson would have pleaded guilty absent error, the Government
    relies on a statement he made during the pre-sentence interview and quoted in the pre-
    sentence report (“PSR”), in which Johnson “admits to knowing he was prohibited from
    the possession of firearms as a result of [two prior felony] convictions.” PSR ¶ 15. But
    the meaning of such an admission is far from clear. It could mean that Johnson “admits
    to [currently] knowing”—at the time of the pre-sentence interview—that “he was
    prohibited from the possession of firearms as a result of [two prior felony] convictions.”
    Or it could mean that Johnson “admits to [previously] knowing”—at the time of his
    possession of the firearm—that “he was prohibited from the possession of firearms as a

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    result of [two prior felony] convictions.” Without such clarity of meaning, we cannot rely
    on this statement, as the Government urges us to, in order to conclude that Johnson
    would have pleaded guilty anyway to knowing his status as a felon under § 922(g) at the
    time he possessed a firearm.

         The Government also urges us to look to the statements Johnson made during the
    plea hearing, when he agreed with the Court’s characterization of him as someone who
    had been convicted of two crimes punishable by more than a year, and admitted to those
    convictions. But such statements merely show that Johnson was aware at the time of his
    plea hearing of his status as a felon under § 922(g)(1), not that he was aware at the time of
    his possession of a firearm. Accordingly, they cannot serve as a basis to conclude that
    Johnson would have pleaded guilty absent error.

        Moreover, the fact that neither of Johnson’s two felony convictions actually resulted
    in prison sentences of more than a year weighs against the Government, and in favor of
    concluding that Johnson might not have pleaded guilty absent error. In another recent
    case in Rehaif’s aftermath, we noted that where a defendant has served a prison sentence
    of more than a year, it is presumed that he knows of his status as a felon under
    § 922(g)(1). See United States v. Miller, 954 F.3d 551, 560 (2d Cir. 2020) (noting the fact
    that defendant’s conviction for a 10 year sentence “removes any doubt that [he] was
    aware of his membership in § 922(g)(1)’s class”). But the same presumption should not
    apply to Johnson, who had not been sentenced to more than a year in prison for his two
    felony convictions at the time he was arrested for possession of a firearm. So even
    though those crimes were still punishable with sentences of more than a year, thus making
    him a member of the § 922(g)(1) class, it is not clear that he knew of his membership, as
    is necessary under Rehaif.

         Accordingly, given that a factual predicate for Johnson’s conviction is lacking, there
    is at least a reasonable probability that Johnson would not have pleaded guilty had he
    been correctly instructed on the elements of the crime or had the District Court looked
    for such a factual predicate on the “knowledge of status” element. As such, his
    substantial rights were affected.

d. . . . that seriously affects the fairness, integrity or public reputation of judicial proceedings.

        As noted in Balde, “[w]here a defendant has been convicted of and received a prison
    sentence for an offense of which there is a substantial probability he is not guilty, there
    can be no serious question that allowing such an error to stand would significantly affect
    the fairness and integrity of judicial proceedings.” 943 F.3d at 98 (internal quotation
    marks and alterations omitted). The conviction here—which was based on clear errors


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          that substantially affected Johnson’s rights—thus affected the fairness and integrity of
          judicial proceedings. It amounted to plain error.

                                        CONCLUSION

      For the foregoing reasons, we VACATE the July 6, 2018 judgment of the District Court,
and REMAND the cause for further proceedings.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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