United States of America v. Bryant D. Aron

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2364
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
BRYANT D. A RON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 19-cr-00048 — Holly A. Brady, Chief Judge.
____________________
A RGUED OCTOBER 24, 2023 — D ECIDED A PRIL 16, 2024
____________________
Before R OVNER , WOOD , and HAMILTON, Circuit Judges.
R OVNER , Circuit Judge. On June 20, 2019, a grand jury in-
dicted Bryant D. Aron on the charge of possession of a firearm
and ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).
Aron agreed to plead guilty pursuant to a binding plea agree-
ment. The district court, however, refused to accept the sen-
tencing recommendation of 96 months’ imprisonment in the
plea agreement. Because it was a binding plea agreement,
Aron was then given the option of withdrawing his guilty

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2 No. 22-2364
plea and he chose to do so. Rather than negotiate a different
plea agreement, Aron opted to proceed to trial. A jury con-
victed him of the charge, and the court sentenced him to the
statutory maximum of 120 months’ imprisonment. On appeal,
Aron raises a number of challenges to the indictment and to
the plea and sentencing process.
First, he challenges the indictment itself, asserting that the
indictment failed to include a known and necessary element,
that he had good cause for failing to raise that objection in the
district court, and that the deficiency in the indictment was
either structural error or met the plain error standard. These
arguments cannot succeed under circuit and Supreme Court
precedent.
The indictment charged a violation of 18 U.S.C. § 922(g)(1),
which provides in relevant part that “it shall be unlawful for
any person … who has been convicted in any court of … a
crime punishable by imprisonment for a term exceeding one
year … to … possess in or affecting commerce, any firearm or
ammunition.” In Rehaif v. United States, 588 U.S. ___, 139 S. Ct.
2191, 2195 (2019), the Supreme Court noted that § 924(a) pro-
vides that any person who “knowingly violates” § 922(g) shall
be subject to a sentence of imprisonment of up to 10 years. As
to that knowledge requirement, prior to the Supreme Court’s
decision in Rehaif, the federal appellate courts unanimously
had held that § 922(g) required the government to prove that
a defendant knowingly possessed a firearm but did not re-
quire proof that the defendant knew that he belonged to one
of the classes of persons prohibited from such possession,
such as felons. United States v. Williams, 946 F.3d 968, 970 (7th
Cir. 2020). In Rehaif, however, the Court upended that inter-
pretation of § 922(g), and held that the knowledge

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No. 22-2364 3
requirement of offenses under § 922(g) and § 924(a) applies
not only to the possession element but also to the status ele-
ment. 139 S. Ct. at 2196–97. Therefore, the offense in this case
requires the government to show not only that Aron knew
that he possessed the firearm, but also that he knew that he
had the relevant status when he did so—namely, that he had
previously been convicted of a crime punishable by more than
one year of imprisonment. Id. at 2194.
That Aron actually possessed the requisite knowledge is
not at issue here. Prior to trial in this case, Aron stipulated that
he had been convicted of crimes punishable by imprisonment
exceeding one year, identified those offenses, and stipulated
to his knowledge of those facts. And he concedes that the jury
was properly instructed as to the knowledge element and
found him guilty. He challenges only the failure to include in
the indictment language itself the element of the knowledge
requirement as to his status.
The indictment in this case provided in relevant part that
“Aron, defendant herein, being a person who has been con-
victed in a Court of a crime punishable by imprisonment for
a term exceeding one year … did possess in and affecting
commerce a firearm and ammunition, and did so knowingly.”
The government first counters that the language of the indict-
ment could be read as applying the knowledge requirement
to both possession and status, analogizing the language here
to that in United States v. Maez, 960 F.3d 949, 964–65 (7th Cir.
2020). We need not consider this argument, however, because
even if it cannot be read as requiring knowledge of his status
as a felon, Aron is not entitled to any relief in this challenge.
Federal Rule of Criminal Procedure 12(b)(3) sets forth a list
of motions that must be made before trial, and provides in

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4 No. 22-2364
subsection (B) that “a defect in the indictment or information”
including failure to state an offense, “must be raised by pre-
trial motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on
the merits.” We have held that defects in an indictment do not
deprive the court of subject matter jurisdiction even when the
defect is the failure to state a federal offense. United States v.
Muresanu, 951 F.3d 833, 839 (7th Cir. 2020). “Because indict-
ment defects go to the merits of the case—not the court’s
power to hear it—an objection to a defective indictment can
be waived.” Id.; Maez, 960 F.3d at 956. Aron did not raise his
objection to the indictment in a pretrial motion, waiting in-
stead until his appeal to assert that the indictment was defec-
tive. Because he failed to raise the objection pretrial, the objec-
tion is untimely. Fed. R. Crim. P. 12(c)(3).
The determination that the timeliness requirement was
not met does not end the inquiry. Pursuant to Federal Rule of
Criminal Procedure 12(c)(3), where a Rule 12(b)(3) motion is
not timely made, a court may consider the defense or objec-
tion upon a showing of good cause. That good-cause determi-
nation is committed to the district court rather than the court
of appeals. United States v. Acox, 595 F.3d 729, 732 (7th Cir.
2010). As we recognized in Maez, however, “ [w]e have inter-
preted this provision to permit new arguments on appeal as
well, provided that ‘the district court would have abused its
discretion if it had concluded that [the defendant] lacked
good cause.’” 960 F.3d at 956, quoting United States v. Thomas,
897 F.3d 807, 815 (7th Cir. 2018); Acox, 595 F.3d at 732.
Aron asserts that he has met this burden. He argues that
the district court would have abused its discretion if deter-
mining that he lacked good cause to file an untimely motion,

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No. 22-2364 5
pointing to our decision in Maez. That is an inapt comparison.
With respect to both the Maez cases (because Maez addressed
challenges by three defendants regarding separate trials) and
this case, the Rehaif decision was issued after the indictments
issued and changed the status quo as to the knowledge re-
quirement for the offense. In Maez, however, the defendants
could not file a timely motion—which is one filed pretrial—
because Rehaif was issued after their trials. It is well-estab-
lished that “[a]n intervening legal decision that overturns set-
tled law amounts to good cause for this purpose.” Maez, 960
F.3d at 956. Therefore, the district court judges in Maez would
have abused their discretion if they determined that the de-
fendants lacked good cause for the failure to raise the motions
timely. The Rehaif argument underlying the objections was
not reasonably available pretrial.
Aron’s circumstance is starkly different, as the timeline
makes clear. Aron’s indictment was returned on June 20, 2019,
and Rehaif was issued the very next day. Therefore, Aron
could have brought a timely motion challenging the indict-
ment from the day after the indictment was returned until the
trial more than two years later. As we have noted, defects in
the indictment including the failure to state an offense must
be raised by a pretrial motion “if the basis for the motion is
then reasonably available and the motion can be determined
without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). That
reflects the situation here. The Rehaif argument was reasona-
bly available to Aron for nearly the entire pretrial process, and
therefore the district court would not have abused its discre-
tion to refuse to consider an untimely motion. See, e.g.,
Thomas, 897 F.3d at 815 (holding that the district court would
not abuse its discretion in denying good cause where a circuit
split reflected the uncertainty as to the legal issue and the

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6 No. 22-2364
defendant knew all he needed to know to raise the argument).
Because Aron has failed to demonstrate good cause, we do
not conduct even plain error review of his claim. United States
v. Lockett, 859 F.3d 425, 428 (7th Cir. 2017)
Aron next raises a number of challenges to the court’s re-
jection of his binding plea agreement. As an initial matter, he
contends that by accepting the magistrate judge’s report and
recommendation without reservation, the district court ac-
cepted his binding plea agreement and lacked the authority
to then subsequently reject it. In the alternative, he asserts that
the court: (1) improperly inserted itself into the plea negotia-
tion process; (2) abused its discretion by failing to provide a
sound reason for rejecting the binding plea agreement; and
(3) failed to provide enough notice of its rejection of the plea
agreement to give Aron the opportunity to challenge aspects
of the Presentence Investigation Report (PSR.)
A binding plea agreement is one in which the parties agree
that a specific sentence is the appropriate disposition of the
case. Fed. R. Crim. P. 11(c)(1)(C). When presented with such
an agreement, a district court may accept it, reject it, or defer
a decision until the court has reviewed the presentence inves-
tigation report. Id. at 11(c)(3)(A). The Sentencing Guidelines
recommend that district courts pursue the last option, defer-
ring acceptance of binding plea agreements until the court has
had an opportunity to consider the presentence report.
U.S.S.G. § 6B1.1 commentary.
The argument that the district court accepted the binding
plea agreement lacks support in the record. First, it should
have been clear to the defendant from the outset that the bind-
ing plea agreement was subject to acceptance by the district
court at sentencing following completion of the PSR. The

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No. 22-2364 7
revised plea agreement itself recognized that the district court
would determine the sentence following completion of the
PSR. Moreover, at the change of plea hearing before the mag-
istrate judge, Aron was explicitly apprised of the process, in-
cluding the need for the district court to decide whether to
accept the plea agreement at the sentencing hearing. The mag-
istrate judge stated that “[i]f … I decide that your plea is
knowingly and voluntarily made and it’s supported by a ba-
sis in fact, then I will prepare findings and I will recommend
to Judge Brady that your guilty plea be accepted and a judg-
ment of guilty be entered. Now, I’m also going to order a
presentence investigation report. And if it is necessary for
Judge Brady to accept your plea agreement because it con-
tains binding terms, then she will do that at the sentencing
hearing before imposing sentence.” R. 120 at 14–15. The mag-
istrate judge later again informed Aron that some of the terms
of the agreement may be binding on the court, and that
“[w]hat that means is, it would become part of the judgment
in this case if the District Court accepts both your guilty plea
and your plea agreement with the Government.” Id. at 16–17
(emphasis added). The magistrate judge thus distinguished
acceptance of the plea from acceptance of the plea agreement.
The magistrate judge further explained the process, ex-
plicitly addressing the provision in the plea agreement setting
forth a sentence of 96 months, and clarifying that the district
court would make the determination at sentencing after the
PSR was completed:
In this paragraph, it states that you and the Gov-
ernment have agreed that you should receive a
sentence of 96 months’ imprisonment pursuant

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8 No. 22-2364
to Federal Rule of Criminal Procedure
11(c)(1)(C).
Do you understand, sir, that if at the time of
sentencing the District Court chooses to accept
your plea agreement with the Government,
then the term in paragraph 8(c) that I just read
to you will become binding upon the Court; that
is to say, it would be included in the judgment
of the case; that is to say that you would receive
a sentence of 96 months’ imprisonment.
Now, on the other hand, if the District Court
does not accept the agreement that you have
with the Government that you receive a sen-
tence of 96 months’ imprisonment, the Court
would give you an opportunity to withdraw
your plea of guilty. At that point, if you chose
not to withdraw your plea of guilty, then the
Court would be free to sentence you more se-
verely and would not be bound by the terms
of that paragraph. Do you understand that, sir?
…
You do understand, sir, that the Court is not
going to be able to determine the advisory
guidelines sentence for your case until after a
presentence report has been completed and
you and the Government have an opportunity
to read that report and challenge the facts con-
tained within the report as well as the applica-
tion of the guidelines recommended by your
probation officer; and the Court may not be

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No. 22-2364 9
able to accept your agreement with the Gov-
ernment that you should receive 96 months in
prison? Do you understand that?
…
I will recommend that your guilty plea be ac-
cepted and a judgment of guilty be entered for
this Indictment.
Now, I'm also going to order the United States
Probation Office to prepare a presentence in-
vestigation report. And it’s in your best inter-
ests, Mr. Aron, to fully cooperate with your pro-
bation officer and answer all of the questions
that they put to you as completely and as hon-
estly as you can, because your answers are go-
ing to wind up in the creation of [a] presentence
report, and this report is going to contain a cal-
culation of the sentencing guideline range and
indicate how those [§] 3553(a) sentencing fac-
tors apply in your case.
Now, it's going to be really important in Judge
Brady's decision as to whether she can accept
your plea agreement and ultimately, then,
what your sentence would be.
Id. at 17, 22, 31–32 (emphasis added). The magistrate judge
therefore made clear that the acceptance of the plea of guilty
did not ensure the acceptance of the binding plea agreement,
and that the acceptance or rejection of the plea agreement
would occur only at the sentencing hearing after the PSR was
completed. That is precisely the process that followed. In its
Order accepting Findings and Recommendations, the district

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10 No. 22-2364
court judge adopted the findings and recommendations of the
magistrate judge, which recommended acceptance of the
guilty plea and recognized that a presentence report would
be prepared and that the court could impose the maximum
sentence, and the court order also stated that the guilty plea
was accepted subject to the court’s consideration of the plea
agreement. Furthermore, the behavior of counsel at the sen-
tencing hearing makes clear that they understood that the
court had not yet made its determination as to whether to ac-
cept the binding plea agreement. The court at sentencing
asked both counsel to present their arguments in favor of the
binding plea agreement and the sentence agreed to therein.
The transcript reflects pages of arguments then presented as
to that issue. No one was caught by surprise, and no one even
hinted that they thought the plea agreement had already been
accepted. There is, in short, no support in the record for the
argument that the district court accepted the binding plea
agreement at an earlier stage and could not then address it at
sentencing.
For the same reason, Aron cannot succeed on his claim
that he was not given sufficient notice of the court’s rejection
of the plea agreement to give him the opportunity to fully lit-
igate the basis for the four-level enhancement in the PSR for
use of the firearm during another felony offense. Aron based
his challenge to the enhancement on the premise that he
lacked notice that he would need to contest the PSR. But the
change of plea hearing, the plea agreement, and the district
court’s order accepting the guilty plea, all clearly apprised
him both that the plea agreement would not be accepted until
sentencing after the PSR was considered, and that he needed
to assert any objections to the PSR. Aron failed to challenge
the facts in the PSR supporting the enhancement, including a

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No. 22-2364 11
witness statement that identified Aron as the shooter, a jury
determination finding that Aron possessed the gun used in
the shooting, and the evidence that the gun was recovered
from Aron’s car. Those facts are sufficient to support the
court’s determination to impose the enhancement. Although
Aron now argues that the district court erred in failing to hold
an evidentiary hearing as to the enhancement, that argument
is waived because at a status conference convened to address
Aron’s objection to the enhancement, counsel for Aron explic-
itly confirmed that he was not seeking an evidentiary hearing
with respect to the enhancement.
Finally, Aron asserts that the court improperly inserted it-
self into the plea negotiation process and abused its discretion
by failing to provide a sound reason for rejecting the binding
plea agreement. Neither of those arguments has merit. The
court was not involved in any way in the discussions that led
to the plea agreement. As Aron acknowledges, “once the par-
ties have themselves negotiated a plea agreement and pre-
sented that agreement to the court for approval, it is not only
permitted but expected that the court will take an active role
in evaluating the agreement.” United States v. Kraus, 137 F.3d
447, 452 (7th Cir. 1998). The court must explain why it finds
the agreement objectionable but must limit its comments to
the plea agreement itself and cannot opine as to hypothetical
plea deals or participate in plea negotiations. United States v.
Viren, 828 F.3d 535, 539 (7th Cir. 2016).
The court limited itself to its proper role here. Its involve-
ment began with its analysis as to whether to accept or reject
the agreement, and it clearly explained, by reference to the
§ 3553 factors, the reasons why it felt that the 96 months’ sen-
tence in the plea agreement was insufficient. And the court

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12 No. 22-2364
never engaged in any discussion as to what alternative plea
sentence it might find acceptable. Certainly, given the small
range between the 96 months’ sentence in the proposed plea
agreement and the 120 months’ statutory maximum, the par-
ties would have had a small range of sentences that they could
have proposed in any subsequent plea agreement, but that is
a product of the statutory maximum which provided a ceil-
ing, not of any actions by the court that could be construed as
inserting itself in the plea negotiation process.
None of the challenges raised by Aron in this appeal enti-
tle him to relief. Accordingly, the decision of the district court
is AFFIRMED.

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