United States v. Mitchell

United States Court of Appeals
for the Fifth Circuit

No. 19-10722

United States of America,

Plaintiff—Appellee,

versus

Antwonyia Delvion Mitchell,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-31-O-1

Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges.
Per Curiam:*
Antwonyia Delvion Mitchell pleaded guilty to possession of a firearm
after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), and received
a sentence of seventy-one months’ imprisonment and three years’
supervised release. Shortly after Mitchell was sentenced, the Supreme Court
decided Rehaif v. United States, which held that a defendant’s knowledge of

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 2, 2020

Lyle W. Cayce
Clerk
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his prohibited status is an element of a § 922(g) offense.
1
Mitchell appeals
his conviction, contending that the factual basis supporting his plea was
insufficient under Rehaif because the record failed to establish that he knew
of his felon status when he possessed the firearm. Because Mitchell does not
demonstrate that the Rehaif error affected his substantial rights and resulted
in a miscarriage of justice, we affirm.
I
The statute under which Mitchell was convicted provides that it is
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. After Mitchell pleaded guilty to this offense
and was sentenced, the Supreme Court held in Rehaif that in order to convict,
the prosecution must prove that the defendant knew that a prior conviction
was punishable for a term exceeding one year at the time she possessed a
firearm.
2

Prior to the offense at issue, Mitchell was convicted of four prior state
felonies. In 2006, Mitchell pleaded guilty to credit card abuse and received
three years’ probation. In 2008, he pleaded guilty to a second charge of credit
card abuse, his probation was revoked, and he was sentenced to two 180-day
terms of imprisonment. In 2016, Mitchell pleaded guilty to two additional
counts of credit card abuse and was sentenced to two concurrent terms of ten
months’ imprisonment. Under Texas law, credit card abuse is a state jail
felony, punishable by a prison term of 180 days to two years.
3
Mitchell’s

1
139 S. Ct. 2191, 2200 (2019).
2
See id.
3
Tex. Penal Code §§ 12.35(a), 32.31(d).
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felony convictions for credit card abuse thus constitute the predicate for his
§ 922(g)(1) offense.
Before accepting Mitchell’s guilty plea for each of these four offenses,
the state criminal court was required to admonish Mitchell “of the range of
punishment attached to each offense.”
4
In other words, Texas law
compelled the court to inform Mitchell that he was pleading guilty to a felony.
Mitchell concedes that he was admonished. Even if he had not made this
concession, this court presumes that the admonitions occurred as required
by Texas law.
5
Thus, while Mitchell’s prior convictions all resulted in
sentences of less than one year, Mitchell knew when he entered each plea
that the conviction was punishable by a longer term.
In 2018, Mitchell committed the present offense. According to the
Presentence Investigation Report (PSR), whose factual findings the district
court adopted, Mitchell was detained and handcuffed on suspicion of using
another person’s identification to obtain a loan at a car dealership. While
officers were speaking to a dealership employee, Mitchell attempted to flee,
and officers pursued him. During the chase, one officer realized that Mitchell
had a handgun, which he pointed at the officer. When the officer drew his
own weapon, Mitchell dropped the gun but continued running. Officers
eventually detained him and recovered the gun, a loaded 9mm pistol.
Mitchell was charged with several offenses, including unlawful
possession of a firearm by a felon in violation of § 922(g)(1). Applying a
three-point reduction for accepting responsibility and a six-point increase for

4
Tex. Code Crim. Proc. art. 2613(a).
5
See Aerojet-General Corp. v. Askew, 511 F.2d 710, 720 (5th Cir. 1975) (explaining
that the “judgment of a court of competent jurisdiction” “is entitled to a presumption of
regularity.”).
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assaulting a law enforcement officer during flight, the PSR calculated
Mitchell’s total offense level at 21. Mitchell entered a guilty plea, which the
district court accepted. In the plea’s factual basis, Mitchell admitted that he
had at least one prior felony conviction, he knowingly possessed a firearm,
and the firearm traveled in interstate commerce. The district court later
sentenced Mitchell to seventy-one months’ imprisonment and three years’
supervised release.
Four days after the district court entered judgment and imposed the
sentence, the Supreme Court decided Rehaif v. United States, which held
that, to violate § 922(g), a defendant must know “he belonged to the relevant
category of persons barred from possessing a firearm.”
6
Mitchell then timely
appealed. We previously held Mitchell’s case in abeyance pending our
decision in United States v. Brandon.
7
We have now issued a published
opinion in Brandon, as well as three other cases involving Rehaif errors
asserted by defendants who pleaded guilty to being felons-in-possession:
United States v. Montgomery,
8
United States v. Lavalais,
9
and United States v.
Hicks.
10

II
On appeal, Mitchell argues that the factual basis of his plea was
insufficient under Rehaif, because the record failed to establish that he knew
he was a felon at the time he possessed the gun. Because Mitchell failed to

6
139 S. Ct. 2191, 2200 (2019).
7
965 F.3d 427 (5th Cir. 2020).
8
974 F.3d 587 (5th Cir. 2020).
9
960 F.3d 180 (5th Cir. 2020).
10
958 F.3d 399 (5th Cir. 2020).
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raise this argument before the district court, we review for plain error.
11
To
establish the requisite plain error, Mitchell must show: (1) an error (2) that is
“clear or obvious, rather than subject to reasonable dispute,” (3) affecting
his substantial rights.
12
If Mitchell makes this showing, we may exercise our
discretion to grant relief if (4) the error “seriously affect[s] the fairness,
integrity[,] or public reputation of judicial proceedings.”
13

“Before entering judgment on a guilty plea, the court must determine
that there is a factual basis for the plea.”
14
This factual basis must “be
sufficiently specific to enable the district court to compare the conduct
admitted by the defendant with the elements of the offense charged.”
15

When assessing factual sufficiency of evidence under the plain error
standard, this court “may look beyond those facts admitted by the defendant
during the plea colloquy and scan the entire record for facts supporting his
conviction.”
16
“This includes the facts gleaned from the plea agreement and
plea colloquy, the factual findings relied upon in the [PSR], as well as ‘fairly
drawn’ inferences from the evidence presented both post-plea and at the
sentencing hearing.”
17

Three elements of a § 922(g) offense were well-established when
Mitchell pleaded guilty: (1) the defendant has been previously convicted of

11
See United States v. Ortiz, 927 F.3d 868, 872 (5th Cir. 2019).
12
Puckett v. United States, 556 U.S. 129, 135 (2009).
13
Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)).
14
Fed. R. Crim. P. 11(b)(3).
15
United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).
16
Id.
17
Id. at 317.
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an offense punishable by a term of imprisonment exceeding one year, (2) the
defendant knowingly possessed a firearm, and (3) the firearm traveled in or
affected interstate commerce.
18
In Rehaif, the Supreme Court held that the
defendant must have known, at the time he possessed the weapon, that he
belonged to a class of persons barred from possessing a gun.
19
One such class,
set forth in § 922(g)(1), includes defendants with felon status.
20

Rehaif specifically concerned a defendant’s knowledge that “he was
in the country unlawfully” under § 922(g)(5), and thus did not settle “what
precisely the Government must prove to establish a defendant’s knowledge
of status in respect to” § 922(g)(1).
21
But the Court did express concern that
if the statute did not require knowledge of felon status, it “might apply to a
person who was convicted of a prior crime but sentenced only to probation,
who does not know that the crime is ‘punishable by imprisonment for a term
exceeding one year.’”
22

A
Under plain-error review, Mitchell must first establish an error by
“show[ing] that the factual basis was insufficient to support his plea.”
23
The
factual basis accompanying Mitchell’s plea listed the first three elements of
a § 922(g)(1) offense—Mitchell had been previously convicted of a felony,
Mitchell knowingly possessed a firearm, and the firearm traveled in interstate
commerce. However, the factual resume neither mentioned the knowledge-

18
See United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).
19
139 S. Ct. 2191, 2200 (2019).
20
See id.; 18 U.S.C. § 922(g)(1).
21
Rehaif, 139 S. Ct. at 2195, 2200.
22
Id. at 2198 (quoting § 922(g)(1)).
23
United States v. Brandon, 965 F.3d 427, 431 (5th Cir. 2020).
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of-felon-status requirement nor otherwise indicated that Mitchell was aware
he had been convicted of a felony at the time he possessed the firearm. The
same was true of Mitchell’s plea hearing. The district court read the first
three elements of the offense, but did not inform Mitchell that the offense
required him to know of his felon status when he possessed the firearm.
Because the district court “did not explicitly consider” whether the factual
basis sufficiently demonstrated that Mitchell knew of his felon status at the
time he possessed the firearm, “the district court erred[,] and this error is
clear under current law.”
24
Thus, Mitchell satisfies prongs one and two of
our plain-error analysis.
B
Under the third prong of our plain error analysis, Mitchell must show
that the error affected his substantial rights; that is, he must demonstrate “a
reasonable probability that he would not have ple[ade]d guilty had he known
of Rehaif.”
25
We have observed that “[d]emonstrating prejudice under
Rehaif will be difficult for most convicted felons for one simple reason:
Convicted felons typically know they’re convicted felons. And they know the
Government would have little trouble proving that they knew.”
26
Likewise,
Rehaif itself “doubt[ed] that the obligation to prove a defendant’s knowledge
of his status will be . . . [too] burdensome.”
27

24
Id. at 431-32; see also United States v. Montgomery, 974 F.3d 587, 590-91 (5th Cir.
2020) (“The district court’s failure to list the scienter requirement for Montgomery’s
§ 922(g) offense was an error that is clear and obvious.”).
25
United States v. Lavalais, 960 F.3d 180, 187 (5th Cir. 2020) (quoting United States
v. Hicks, 958 F.3d 399, 402 (5th Cir. 2020).
26
Id. at 184.
27
Rehaif v. United States, 139 S. Ct. 2191, 2198 (2019).
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Rehaif described a hypothetical scenario in which a defendant
convicted of a crime punishable by more than a year but sentenced only to a
term of probation might not know that the crime is a felony.
28
By contrast, in
our published cases analyzing the impact of Rehaif error on defendants’
substantial rights, the Government presented solid proof of each defendant’s
knowledge of his felon status.
29
The evidence proffered here falls somewhere
in the middle, but is most analogous to that presented in United States v.
Brandon.
30

In Brandon, we judicially noticed state court documents bearing the
defendant’s signature and thumbprint and acknowledging that, for the
defendant’s burglary conviction, punishment was “assessed” at eighteen
months’ imprisonment but “suspended” to three years’ probation.
31

Notably, these documents also demonstrated that the defendant had been
“admonished concerning the range of punishment” at his guilty-plea
hearing.
32
Further, because the defendant claimed that it was “unclear”
whether he remembered the conviction when he possessed a firearm some
ten years later, we assessed “circumstantial evidence” that he attempted to

28
Id. (quoting § 922(g)(1)).
29
See, e.g., Hicks, 958 F.3d at 401 (defendant had previously been sentenced to six
years’ imprisonment, had served two two-year prison terms, and had been arrested and
charged under a separate state felon-in-possession law several months before committing
the § 922(g)(1) offense)); Lavalais, 960 F.3d at 187 (defendant had previously received a
two-year prison sentence and, shortly after his arrest, asked his companion to falsely claim
ownership of the gun); Montgomery, 974 F.3d at 591 (5th Cir. 2020) (defendant had spent
over three years in prison for three prior felonies and was still on parole when he was
charged under § 922(g)(1)).
30
965 F.3d 427 (5th Cir. 2020).
31
Id. at 430.
32
Id. at 432 (internal quotations omitted).
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conceal the weapon when police approached.
33
Taken together, this evidence
“establish[ed] that [the defendant] had knowledge of his status as a convicted
felon when he possessed the firearm,” so “there [was] not a ‘reasonable
probability’ that [the defendant] would have refused to enter the plea absent
the district court’s error[,] and [the defendant] [could not] show that the
error affected his substantial rights.”
34

Like the defendant in Brandon, Mitchell never served a sentence in
excess of one year for his previous felonies.
35
But while Brandon received a
mere probation term for his felony, Mitchell served actual prison time for his
prior crimes, making it more likely that he would appreciate the gravity of the
offenses.
36
Further, as in Brandon, Mitchell was admonished by the state
criminal court regarding the potential range of punishment for each felony.
37

Indeed, Mitchell heard these admonitions not once, not twice, but three
separate times. Mitchell admits that he was aware of his felon status at the
time he was admonished, but contends, as did the defendant in Brandon, that
it is “unclear” “[w]hether he remembered that fact” when he possessed the
firearm.
38
It is true that Brandon presented additional circumstantial
evidence of knowledge of felon status, namely the defendant’s attempt to
conceal the handgun from police.
39
Here, there is no clear evidence of
concealment, though Mitchell attempted to leave the dealership when he saw

33
Id. at 432-33.
34
Id. at 433.
35
Id. at 430.
36
See id.
37
Id. at 432.
38
Id.
39
Id. at 433.
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the police present. After he was arrested and hand-cuffed, he attempted to
escape by fleeing on foot. When the police gave chase, he drew the firearm
he possessed and attempted to point it at the officers, while still handcuffed.
At that point, he was no longer concealing the weapon.
In Brandon, though, more than ten years separated the defendant’s
single felony conviction and his § 922(g)(1) offense, rendering it far more
likely that the defendant would not recall the felony.
40
Here, by contrast,
thirty-two months elapsed between Mitchell’s most recent felony and his
federal felon-in-possession charge. Though it would be a fact question in this
case as to whether Mitchell actually knew he had been convicted of an offense
for which he could have been sentenced to more than one year in prison, we
think it quite unlikely that, having been convicted of four felonies, been
reminded formally of this fact on three separate occasions, and served a total
of sixteen months in prison for these offenses, Mitchell was nonetheless
unaware of his felon status when he possessed the firearm. Viewed in its
entirety, the record does not indicate a reasonable probability that Mitchell
would have foregone the plea had he been informed of Rehaif’s additional
scienter requirement.
We also note that Mitchell received a significant benefit from pleading
guilty: the Government awarded him a three-point reduction under the
Guidelines for acceptance of responsibility.
41
Without this reduction,
Mitchell’s resulting offense level would have significantly increased his

40
Id. at 432.
41
See U.S. Sent’g Guidelines Manual §3E1.1 & cmt. 2 (U.S. Sent’g
Comm’n 2018) (permitting the reduction for acceptance of responsibility and noting that
the adjustment does not apply, except in “rare circumstances” to defendants who choose
to proceed to trial).
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Guidelines sentencing range.
42
The reduction bolsters the conclusion that
Mitchell has failed to show that, had he known of Rehaif before entering the
plea, he would have gone to trial.
C
Finally, even if Mitchell could make the required showing, his claim
would nonetheless fail the fourth prong of our plain error analysis, under
which we have discretion to grant relief if the error “seriously affect[s] the
fairness, integrity[,] or public reputation of judicial proceedings.”
43
We have
stated that “it would be a miscarriage of justice and a blow to the public
reputation of judicial proceedings to reverse [a defendant’s] felon-in-
possession conviction based simply on his post-Rehaif argument that ‘the
possibility is quite real’ he was unaware of his felon status.”
44
Mitchell
makes similar arguments here, and they do not merit reversal.
In sum, the district court’s failure to assess the factual sufficiency of
Mitchell’s knowledge of his felon status, while plainly erroneous, neither
affected Mitchell’s substantial rights nor resulted in a miscarriage of justice.
* * *
We therefore AFFIRM Mitchell’s conviction.

42
See U.S. Sent’g Guidelines Manual ch. 5 pt. A (U.S. Sent’g
Comm’n 2018) (range of 77-96 months based on a criminal history category of IV and an
offense level of 24).
43
Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
44
United States v. Huntsberry, 956 F.3d 270, 286 (5th Cir. 2020) (emphasis in
original).
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