           Case: 19-10916   Date Filed: 01/09/2020   Page: 1 of 13


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10916
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:18-cr-00208-WS-N-1


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                  versus


MATTHEW JOSHUA GREEN,

                                                         Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                             (January 9, 2020)

Before WILLIAM PRYOR, MARTIN, and GRANT, Circuit Judges.
              Case: 19-10916    Date Filed: 01/09/2020    Page: 2 of 13


PER CURIAM:

      Matthew Green appeals his 96-month prison sentence after pleading guilty

to possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). Green argues on appeal that (1) the district court erred

in enhancing his sentence for reckless endangerment during flight pursuant to

United States Sentencing Guideline § 3C1.2, and (2) that his conviction should be

vacated in light of the Supreme Court’s decision in Rehaif v. United States, 588

U.S. ___, 139 S. Ct. 2191 (2019). After careful consideration, we affirm Green’s

conviction and sentence.

                                          I.

      On April 14, 2018, while driving on Interstate 10 in Baldwin County,

Alabama, Green was stopped for a traffic infraction by Baldwin County Sheriff’s

Deputy Joseph Stabler. When Stabler approached the vehicle, Green was speaking

on the telephone and would not end his phone call. Stabler smelled an odor of

marijuana, and observed, in plain view, loose marijuana. From Green’s passenger

window, Stabler asked Green to end his phone conversation and get out of the

vehicle, but Green initially failed to comply. When Green finally got out of the

vehicle, he and Stabler engaged in a “short tussle” on the vehicle’s driver’s side,

which was adjacent to highway traffic. After handcuffing Green, Stabler searched




                                          2
              Case: 19-10916     Date Filed: 01/09/2020    Page: 3 of 13


the car and uncovered a handgun. Green was charged with illegal firearm

possession by a felon in violation of 18 U.S.C. § 922(g)(1).

      In its presentence investigation report (“PSR”), the probation office found

Green had several prior criminal convictions. As relevant here, Green was

convicted of (1) aggravated battery with intent to cause great bodily harm in 2011,

for which he was sentenced to three-years imprisonment; (2) vehicular homicide

and receiving stolen property in 2013, for which he received one 16-month

suspended sentence and one 16-month sentence with 164 days of time-served

credit; and (3) felony obstruction of an officer and possession of cocaine in 2016,

for which he was sentenced to six-months imprisonment and probation. The

indictment listed Green’s 2013 and 2016 convictions as predicates for his

§ 922(g)(1) charge, but not his 2011 conviction.

      In calculating Green’s advisory guideline range, the probation office applied

a two-level sentencing enhancement under USSG § 3C1.2, for “recklessly

creat[ing] a substantial risk of death or serious bodily injury to another person in

the course of fleeing from a law enforcement officer.” The PSR stated that during

the arrest, Green “made attempts to push Deputy Stabler into oncoming traffic.”

Green objected to the PSR’s factual finding that he tried to push Deputy Stabler

into traffic, and its application of the two-level enhancement under USSG § 3C1.2.




                                           3
               Case: 19-10916   Date Filed: 01/09/2020    Page: 4 of 13


       At sentencing, the government called Stabler to testify and introduced into

evidence six photographs extracted from his dash-mounted video camera. Stabler

testified that because of Green’s noncompliance with his orders to exit the vehicle,

he attempted to handcuff Green once he finally got out of the vehicle on the driver

side. Stabler testified that Green resisted, so Stabler pinned him to the vehicle with

his body. At this point, Green began waiving his arms at passing traffic and

yelling “help” and “I’m not resisting.” Stabler acknowledged that he likely

weighed twice as much as Green, but claimed he could feel Green “pushing off the

vehicle, into traffic.”

       Green’s counsel argued that application of the enhancement in USSG

§ 3C1.2 was inappropriate because Green “wasn’t resisting arrest” and “wasn’t

[engaging in] flight.” He noted that Green was yelling for help out of fear of being

mistreated by Stabler and that he had “no intention to harm the officer or anyone

else.” The district court denied Green’s objection, finding that he “created an

extremely dangerous situation” by resisting arrest on the shoulder of a highway,

placing himself and Stabler at risk of being struck by incoming traffic. The district

court added that Green, as someone who had previously been arrested, should have

“know[n] the drill” and cooperated by moving to a safer location. The Court then

adopted the PSR in full and concluded that Green’s advisory guidelines range was

92 to 115 months.


                                          4
              Case: 19-10916     Date Filed: 01/09/2020     Page: 5 of 13


      Green’s counsel requested the court impose a five-year sentence, citing

Green’s difficult upbringing, mental health problems, and drug addiction to justify

leniency. The government recommended a sentence at the high end of the

guideline range, citing Green’s criminal history.

      The district court explained that making its sentencing decision, it would

have to consider the sentencing factors set forth in 18 U.S.C. § 3553(a), and

determine “whether a sentence within the guidelines will satisfy the sentencing

objectives” of § 3553(a). The district court then stated:

      What stands out to me about this case is that, notwithstanding your
      statements to me today about your medical conditions and your motives
      and intent, you were traveling on an interstate highway with a quantity
      of illegal substances and a firearm, a firearm that you, because of your
      criminal history, were not allowed to possess and, in fact, your criminal
      history is the reason we have that statute. People who use guns to shoot
      other people should never come close to owning or possessing a
      firearm, ever. And so the statute is written especially for you, to prevent
      people who have those kinds of convictions from ever possessing a
      firearm. The statute is broader than that, and your other felony
      convictions would also disqualify you from ever possessing a firearm.
      But more importantly, your conviction for aggravated battery is
      certainly a qualifying conviction.

The district court further found that Green’s difficult upbringing and personal

history did not entitle him to a below-guidelines sentence, particularly in light of

his criminal history. The district court sentenced Green to 96-months

imprisonment.




                                          5
             Case: 19-10916     Date Filed: 01/09/2020    Page: 6 of 13


      The government asked the district court to consider making a statement

under United States v. Keene, 470 F.3d 1347 (11th Cir. 2006), and the court

agreed:

      Yes, I think that’s appropriate. The sentence of 96 months is what I
      consider to be a section 3553(a) sentence and it takes into account all
      of the sentencing factors and objectives and it’s the sentence I would
      impose regardless of the objections or the rulings thereto.

Green then objected to the sentence as “unreasonable and greater than necessary in

light of the 3553(a) factors.” Green also suggested that the district court’s Keene

statement was inappropriate “because the guidelines are the starting point and

usually the ending point of sentencing.” The district court responded:

      I impose the sentence of eight years in this case because I believe that’s
      the sentence that ought to be imposed in this case, based on all the
      factors considered. So your statement is well taken. I accept your
      statement for what it is. But the sentence is the sentence I would
      impose, regardless of my rulings today.

Green filed a timely notice of appeal, and this appeal followed.

      Green raises two arguments before us. First, Green argues the district court

erred in applying the USSG § 3C1.2 enhancement because his actions did not

occur “in the course of fleeing from a law enforcement officer,” as required under

the text of the enhancement. According to Green, that error was not rendered

harmless under Keene by the district court’s “barebones” statement, and even if it

was, recent Supreme Court precedent requires this Court to overturn Keene.

Second, he argues his conviction is not valid in light of the Supreme Court’s
                                          6
                Case: 19-10916       Date Filed: 01/09/2020        Page: 7 of 13


decision in Rehaif, which held that in prosecutions under 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), the government must prove the defendant knew he was prohibited

from possessing a firearm. 139 S. Ct. at 2194. Green claims that, because his

indictment and plea colloquy omitted this element, his conviction must be vacated.

                                                II.

       In Keene, this Court held that it need not decide a contested guideline issue

on appeal where the district court clearly stated on the record that it would have

imposed “exactly the same sentence” under 18 U.S.C. § 3553(a), regardless of any

error in its guideline calculation. 470 F.3d at 1350. If a district court makes a

statement to this effect, any error in calculating a defendant’s guideline range is

harmless so long as the sentence imposed is substantively reasonable under

§ 3553(a). See id.

       Green does not argue that his sentence was substantively unreasonable.1

Instead, he attacks the district court’s pronouncement as a “barebones statement”

that was “insufficient to render the guidelines calculation error harmless” under

Keene. Relying on the Supreme Court’s decision in Molina-Martinez v. United

States, 578 U.S. ___, 136 S. Ct. 1338 (2016), Green argues that a Keene statement

can only render a potential Guidelines calculation error harmless if the district



1
  Green has thus waived any such argument. See Keene, 470 F.3d at 1350 (“[T]he burden is on
the defendant to prove that his sentence is unreasonable in light of the record and § 3553(a).”).
                                                7
              Case: 19-10916       Date Filed: 01/09/2020   Page: 8 of 13


court “make[s] it clear that the judge based the sentence . . . on factors independent

of the Guidelines.” Id. at 1347.

      Even assuming that Molina-Martinez requires sentencing judges to state

factors independent of the Guidelines, this district court satisfied that requirement.

When the district court sentenced Green, it said it was required to consider the

sentencing factors set forth in § 3553(a). The court then reviewed Green’s

personal history and prior criminal convictions. In explaining its sentence, the

court specifically cited Green’s conviction for aggravated battery, which involved

the use of a gun, and Green’s recent and rapid accumulation of felony convictions.

These factors would have independently supported Green’s sentence under

§ 3553(a). See 18 U.S.C. § 3553(a)(1) (courts must consider a defendant’s

“history and characteristics”); id. § 3553(a)(2)(A) (courts must consider the need

for a sentence to “promote respect for the law”). Thus, the district court made

clear that Green’s sentence was based on factors independent of the Guidelines.

      Green alternatively argues that Keene was abrogated by the Supreme

Court’s decisions in Molina-Martinez and Rosales-Mireles v. United States, 585

U.S. ___, 138 S. Ct. 1897 (2018), which recognized that unpreserved Guidelines

errors ordinarily warrant relief under plain error review, 136 S. Ct. at 1345; 138 S.

Ct. at 1911. However, Molina-Martinez and Rosales-Mireles addressed

unpreserved errors. Id. Keene articulates a doctrine relative to preserved errors.


                                            8
              Case: 19-10916     Date Filed: 01/09/2020    Page: 9 of 13


This distinction is significant, because in Molina-Martinez and Rosales-Mireles,

the district courts had no chance to state whether they would have imposed the

same sentence regardless of the error. Thus, in Molina-Martinez and Rosales-

Mireles there was uncertainty about whether the outcome would have been

different with a correct Guideline calculation. 136 S. Ct. at 1345; 138 S. Ct. at

1911. By contrast, when the error is preserved, as in Keene, the district court is

aware of the dispute about the Guideline application, and has the chance to

determine in the first instance that the sentence is proper regardless of any error.

470 F.3d at 1349. This renders any error harmless. Id. Molina-Martinez expressly

distinguished situations in which “the district court thought the sentence it chose

was appropriate irrespective of the Guidelines range.” 136 S. Ct. at 1346. We

cannot therefore say that Molina-Martinez and Rosales-Mireles “undermined

[Keene] to the point of abrogation.” United States v. Sneed, 600 F.3d 1326, 1332

(11th Cir. 2010).

      In sentencing Green, the district court made a valid statement under Keene.

Keene is binding precedent, so we hold that any complained-of defect in the

district court’s sentencing calculation constitutes harmless error. Thus we need not

and do not decide whether the district court erroneously applied the enhancement

under U.S.S.G. § 3C1.2.




                                           9
               Case: 19-10916        Date Filed: 01/09/2020        Page: 10 of 13


                                                III.

       Green also asks us to vacate his sentence in light of the Supreme Court’s

decision in Rehaif v. United States, 588 U.S. __, 139 S. Ct. 2191 (2019). He

argues that because Rehaif now requires that a defendant had knowledge of his

felon status at the time of the offense, the omission of this element from the

indictment and plea colloquy constitutes plain error. This argument fails.2

       As an initial matter, Green has waived his challenge to the indictment. He is

correct that an indictment is defective if it fails to set forth an essential element of

an offense. United States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015).

However, a guilty plea waives all non-jurisdictional defects that occurred before

entry of the plea. See United States v. Brown, 752 F.3d 1344, 1347 (11th Cir.

2014). This includes an omission of a mens rea element from an indictment. Id.

Because Green’s challenge is limited to the indictment’s failure to charge

knowledge under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), he waived any such

challenge by pleading guilty. Id.



2
  Four days after Green filed his opening brief, the Supreme Court published its decision in
Rehaif. The government then took the unusual step of addressing Rehaif in its response brief,
and Green subsequently challenged his conviction on Rehaif grounds in his reply brief. While
we ordinarily refuse to address issues not raised in an initial brief, we may review an issue first
raised by an appellee if the appellant addresses that same issue, without objection, in its reply
brief. See United States v. Dacus, 408 F.3d 686, 687 (11th Cir. 2005). Though the Rehaif issue
was raised for the first time in the government’s response brief, Green addressed it at length in
his reply brief. He also did not clearly object to our consideration of the issue. We therefore
address whether Rehaif requires us to vacate Green’s conviction.
                                                10
             Case: 19-10916      Date Filed: 01/09/2020    Page: 11 of 13


      Because no Rehaif claim was preserved in the district court, we review

Green’s challenge to his guilty plea for plain error. See Henderson v. United

States, 568 U.S. 266, 272, 133 S. Ct. 1121, 1126 (2013). To obtain relief under

plain error review, Green must establish that (1) an error occurred; (2) the error

was plain; (3) the error affected his substantial rights; and (4) the error seriously

affected the fairness of the judicial proceedings. United States v. Gresham, 325

F.3d 1262, 1265 (11th Cir. 2003). Green pled guilty, so he cannot prove that his

substantial rights were affected unless he shows a reasonable probability that, but

for the error, he would not have entered the plea. United States v. Dominguez

Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). When determining

whether an error affected a defendant’s substantial rights, we “may consult the

whole record.” United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046

(2002).

      Both parties agree that plain error occurred when Green’s plea colloquy

failed to establish that he knew he had been convicted of a crime punishable by

imprisonment for a term exceeding one year, Rehaif, 139 S. Ct. at 2198. This

satisfies the first two prongs of the test. However, Green cannot show that this

error affected his substantial rights. According to the undisputed facts of the PSR,

Green had several felony convictions before his current offense, including a 2011

conviction for aggravated battery that resulted in a three-year term of


                                           11
             Case: 19-10916      Date Filed: 01/09/2020   Page: 12 of 13


imprisonment. The fact that Green had been convicted of multiple felonies and

served a three-year prison sentence for one indicates that he knew he was a

convicted felon. See United States v. Reed, 941 F.3d 1018, 1022 (11th Cir. 2019).

      Green argues that, when consulting the record to determine whether he was

substantially prejudiced, we should not consider sentences for convictions that

were not charged in the indictment as bases for his § 922(g)(1) offense. Even if we

were to limit our review in this way, Green cannot show a reasonable probability

of a different result. The indictment listed his 2016 convictions for obstruction of

an officer and possession of cocaine, and his 2013 convictions for aggravated

vehicular homicide and receiving stolen property. The PSR establishes that he

received a six-month prison sentence for his 2016 convictions, and a 16-month

prison sentence, with 164 days of time-served credit, for his 2013 convictions.

Even if we were to assume some confusion as to whether his 2016 convictions

were punishable by over one year in prison, the same cannot be said of his 2013

convictions. He received a 16-month prison sentence for those crimes.

      This record supports a finding that Green was aware of his felon status when

he possessed the firearm. There is thus no reason to believe he would have

proceeded to trial absent the district court’s plain error. Green having failed to

establish plain error on this issue, we affirm.




                                          12
     Case: 19-10916   Date Filed: 01/09/2020   Page: 13 of 13


                              IV.

We AFFIRM Green’s conviction and sentence.




                               13
