United States v. 2020-11-06 | 18-50122 | USA V. DARIUS KING | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

DARIUS LATRELL KING, AKA Darius
King,
Defendant-Appellant.
No. 18-50122

D.C. No.
3:17-cr-00679-
MMA-1

OPINION

On Remand from the United States Supreme Court

Filed November 6, 2020

Before: Kim McLane Wardlaw and Andrew D. Hurwitz,
Circuit Judges, and Edward R. Korman,
*
District Judge.

Opinion by Judge Korman

*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.

2 UNITED STATES V. KING

SUMMARY
**

Criminal Law

On remand from the Supreme Court for further
consideration in light of Rehaif v. United States, 139 S. Ct.
2191 (2019), the panel affirmed a conviction for being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g).

Applying United States v. Johnson, 2020 WL 6268027
(9th Cir. Oct. 26, 2020), the panel rejected the defendant’s
argument that his conviction should be vacated in light of
Rehaif because the Government did not introduce any
evidence that he knew of his status as a felon. The panel
wrote that, as in Johnson: (1) plain-error review applies
because the defendant did not object at trial to the omission
of the knowledge-of status element of the offense; (2) the
defendant’s uncontroverted presentence report shows that he
pleaded guilty to two felonies and served sentences of
greater than one year for each; and (3) the defendant thus
cannot prevail on plain-error review.

COUNSEL

Joshua Jones, Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. KING 3

Robert S. Brewer, Jr., United States Attorney; Daniel E.
Zipp, Chief, Appellate Section, Criminal Division; United
States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.

OPINION
KORMAN, District Judge:
Darius King was charged with being a felon in
possession of a firearm, 18 U.S.C. § 922(g). After King’s
suppression motion was denied, he agreed to a bench trial at
which he stipulated to the following facts: (1) the relevant
firearm had been transported in interstate commerce and
(2) at the time of the alleged offense, King had been
convicted of a felony. King also stipulated to the anticipated
testimony of the various officers the Government would
have called to prove he knowingly and constructively
possessed the firearm. Based on these stipulations, which at
the time satisfied the elements of the offense, the district
court entered a judgment of conviction. We affirmed,
concluding that the police had probable cause to arrest King
and that the search of his wife’s room was reasonable.
United States v. King, 771 F. App’x 449 (9th Cir. 2019). The
Supreme Court granted King’s petition for a writ of
certiorari, vacated our judgment, and remanded King’s case
to us “for further consideration in light of Rehaif v. United
States, 588 U.S. —, 139 S. Ct. 2191, 204 L.Ed.2d 594
(2019).” 2020 WL 3146673 (U.S. June 15, 2020) (mem.).
On remand, King argues that his conviction should be
vacated because the Government did not introduce any
evidence that he knew of his status as a felon. We recently
rejected that argument in United States v. Johnson, — F.3d

4 UNITED STATES V. KING

—, 2020 WL 6268027 (9th Cir. Oct. 26, 2020). In Johnson,
we held that plain-error review applies when the defendant
fails to challenge the district court’s omission of the
“knowledge-of-status element now required under Rehaif.”
Id. at *3. We held that such a challenge is “best understood
not as a challenge to the sufficiency of the evidence, but
rather as a claim that the district court applied the wrong
legal standard in assessing his guilt.” Id. Therefore, United
States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc),
upon which King relies in urging de novo review, is
inapplicable. Johnson, 2020 WL 6268027, at *3. Johnson
further held that, under plain-error review, we could look
beyond the trial record in concluding that Johnson must have
known of his status as a felon, because the uncontested
presentence report demonstrated that Johnson had served
prior prison sentences exceeding one year. Id. at *5. Given
that fact, we affirmed his conviction on plain-error review
because doing so did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings. Id.
Johnson resolves this case. Like Johnson, King did not
object at trial to the district court’s omission of the
knowledge-of-status element of the offense. Plain-error
review therefore applies. And, as in Johnson, King’s
uncontroverted presentence report shows that he pleaded
guilty to two felonies and served sentences of greater than
one year for each. Thus, King cannot prevail on plain-error
review.
The judgment of conviction is therefore AFFIRMED.