United States of America v. Taleb Jawher

United States Court of Appeals
For the Eighth Circuit
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No. 22-2844
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United States of America
Plaintiff - Appellee
v.
Taleb Jawher
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 22, 2023
Filed: November 1, 2023
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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges.
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MELLOY, Circuit Judge.
While Taleb Jawher was working at a convenience store in St. Louis, a
suspected shoplifter appeared to steal a $1.10 piece of candy. Jawher pointed a
loaded pistol at the man and chased him from the store. During an ensuing
altercation, Jawher repeatedly beat him on the head with the pistol. The pistol
ultimately discharged and killed the man.

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Jawher initially pleaded guilty to possessing a firearm while being unlawfully
present in the United States in violation of 18 U.S.C. § 922(g)(5). Because the
offense resulted in a death, the district court applied a homicide guideline cross
reference pursuant to U.S.S.G. § 2K2.1(c)(1)(B). Jawher appealed, arguing the
district court erred by applying the guideline for second-degree murder rather than
manslaughter. While Jawher’s appeal was pending, the Supreme Court issued its
opinion in Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), holding the
knowledge requirement of § 922(g) applied to the “prohibited status” element, i.e.,
the government must prove the defendant knew he was present in the United States
illegally. On plain error review, our court remanded based on Rehaif and did not
address the sentencing matter. See United States v. Jawher, 950 F.3d 576, 581 (8th
Cir. 2020).
On remand, Jawher waived his right to a jury trial. Following a bench trial
focused on the issues of Jawher’s immigration status and his knowledge of that
status, the district court1 found Jawher guilty. The district court again applied the
second-degree murder guideline as the cross reference. Jawher now appeals his
conviction arguing the district court failed to adequately address the issue of
subjective knowledge. He also appeals his sentence arguing the district court erred
by applying the guideline for second-degree murder rather than manslaughter. We
affirm.
I.
As to the conviction, Jawher does not directly contest the sufficiency of the
evidence. Rather, he contests the sufficiency of the district court’s pronouncement
and asks that we remand to a different judge for additional findings. In particular,
he argues the district court failed to address the issue of subjective knowledge.
Regardless of the precise scope of Jawher’s arguments in this appeal, we conclude
1 The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.

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the record is more than sufficient to support the guilty verdict. We also conclude the
district court’s pronouncement satisfied the requirements of Federal Rule of
Criminal Procedure 23(c).
Rule 23(c) provides that, “In a case tried without a jury, the court must find
the defendant guilty or not guilty. If a party requests before the finding of guilty or
not guilty, the court must state its specific findings of fact in open court or in a
written decision or opinion.” Here, at the end of the bench trial, the district court
took the case under advisement. Later, in open court, the district court pronounced
a general verdict of guilty after specifically discussing the Eighth Circuit’s remand
order and identifying status and knowledge as the contested issues. The district court
did not provide additional elaboration or more specific findings because neither
Jawher nor the government requested specific findings. In the absence of a request
for more detailed findings, the district court fulfilled its duty as the fact finder at the
bench trial by pronouncing the general verdict. See, e.g., United States v. Gant, 691
F.2d 1159, 1163 (5th Cir. 1982) (where a defendant waives the right to specific
findings of fact by not requesting them pursuant to Rule 23, the reviewing court
implies findings to support the verdict where the evidence, viewed in the light most
favorable to the verdict, permits); McClain v. United States, 417 F.2d 489, 492 (9th
Cir. 1969) (same).
To the extent Jawher argues the district court misconstrued the nature of the
subjective knowledge inquiry or otherwise failed to appreciate Jawher’s arguments,
we disagree. In general, we presume district court judges know and apply the law.
See, e.g., United States v. Trung Dang, 907 F.3d 561, 565 (8th Cir. 2018) (noting
that we “presum[e] ‘that district judges know the law,’ especially when it comes to
clear rules in the area of criminal sentencing” (citation omitted)). Just as this
presumption is appropriate in the important and oft-repeated area of criminal
sentencing, it is appropriate in the face of a remand that clearly identifies a singular
issue of concern. Regardless, we need not rely on the presumption in this case. The
bench-trial record leaves no doubt that the experienced district court judge was
aware of the critical issue before the court on remand.

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The trial record included Jawher’s extensive immigration proceedings,
testimony from an immigration officer, and testimony from Jawher’s immigration
attorney. Jawher had entered the country on a temporary visa and overstayed his
visa. He paid substantial sums to obtain fraudulent documents as to a foreign divorce
and submitted those documents to immigration authorities. He also submitted
multiple applications for a marriage-based change in status relying on his marriage
to a United States citizen. One such application was pending at the time he possessed
the firearm and killed the suspected shoplifter. Jawher received numerous
communications from immigration authorities over the span of several years
indicating he had been denied relief or had not received a change in status.
During the pendency of his various applications, however, immigration
authorities did not physically remove him from the United States. Immigration
authorities also granted him temporary permission to work, albeit permission
referenced in a document that expressly disavowed the granting of any legal
immigration status. Jawher argued below that the immigration authorities’ acts of
grace in granting permission to work and not physically removing him during the
pendency of his applications reasonably caused him to believe he was legally present
in the United States. According to Jawher, the fact that English is not his native
tongue further supports this conclusion, as does the fact that his immigration attorney
told him he could remain in the United States.
In short, the issues of status and knowledge were squarely before the district
court with evidence and arguments to support both sides of the case. The district
court’s general verdict of guilty without further discussion does not demonstrate a
failure to understand or resolve these key issues. And, regardless of Jawher’s
argument that the present record might have permitted a fact finder to conclude he
subjectively and mistakenly believed he was legally present, we review the record
with deference to the verdict. See United States v. Huggans, 650 F.3d 1210, 1222
(8th Cir. 2011) (“We review the sufficiency of the evidence . . . in the light most
favorable to the verdict, upholding the verdict if a reasonable factfinder could find
the offense proved beyond a reasonable doubt, even if the evidence rationally

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supports two conflicting hypotheses.” (citation omitted)). Viewed in this light, the
record adequately supports the guilty verdict and its implicit finding of subjective
knowledge. Immigration authorities repeatedly informed Jawher that he lacked legal
status. Moreover, the fact that he purposefully committed fraud in an effort to obtain
legal status indicates an understanding that he lacked legal status. The district court
permissibly concluded Jawher knew he was present illegally.
II.
As to the sentencing issue, Jawher presents two arguments: one technical and
one factual. The guideline for a § 922(g) conviction calls for application of “the
most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide)”
when the illegal firearm possession results in a death. U.S.S.G. § 2K2.1(c)(1)(B).
In his technical argument, Jawher argues the court must apply a by-the-elements
approach as normally applied for crime-of-violence or violent-felony determinations
under recidivist guidelines and statutes. See, e.g., Mathis v. United States, 579 U.S.
500 (2016). In particular, he argues a federal homicide guideline should not apply
because a jurisdictional element is lacking in that the shooting did not occur on
federal land. In his factual argument, Jawher argues simply that, under either federal
or Missouri law, the most analogous guideline should be manslaughter rather than
second-degree murder because the evidence at sentencing did not show malice as
required for second-degree murder.
The technical argument fails. The guideline cross reference looks merely to
“the most analogous” homicide offense guideline. U.S.S.G. § 2K2.1(c)(1)(B). It
directs the sentencing court to apply “analogous” guidelines not specific statutory
provisions. There simply is no basis to conclude the cross reference requires
attention to jurisdictional matters as would be the case for an actual federal homicide
charge. See United States v. Szczerba, 897 F.3d 929, 942 (8th Cir. 2018) (rejecting
a jurisdictional argument as applied to a guideline cross reference). Accordingly,
we review the district court’s determination as to the “most analogous” homicide
guideline deferentially, as a factual determination. See United States v. Tunley, 664

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F.3d 1260, 1262–64 (8th Cir. 2012) (reviewing for clear error a district court’s
factual analysis pursuant to the cross reference of U.S.S.G. § 2K2.1(c)(1)(B)); see
also United States v. Osborne, 164 F.3d 434, 438 (8th Cir. 1999) (applying
deferential review to factual findings regarding analogous guidelines).
The factual argument also fails. Some of the altercation was captured on
video, but the video does not show Jawher pulling the trigger. Jawher argues that
because he did not intentionally pull the trigger—did not actually intend to shoot the
victim in the head—the record only supports a finding of recklessness, rather than
malice, such that the cross reference for manslaughter, rather than second-degree
murder, must apply. We reject this argument as an overly narrow interpretation of
both the facts and the definition of malice.
Here, Jawher chased a customer from the convenience store while brandishing
a loaded gun in response to the supposed theft of a $1.10 piece of candy. Jawher not
only escalated the situation to extreme violence and caused the shooting, he admits
that he beat the customer repeatedly on the head with the pistol. Beating a person
on the head with a substantial piece of hardware is a potentially fatal act in and of
itself, without regard to the shooting.
Under either Missouri or federal law, the use of potentially deadly violence
against another may demonstrate the malice necessary to support a second-degree
murder conviction. Accordingly, whether Jawher purposefully shot the victim in the
head, or accidentally shot the victim in the head while potentially fatally beating his
head with a pistol, the district court permissibly concluded the mens rea rose above
the baseline recklessness required for manslaughter and reached the level of malice
required for murder. See, e.g., United States v. Black Elk, 579 F.2d 49, 51 (8th Cir.
1978) (hitting and kicking sufficed to show malice because “[m]alice does not
require proof of a subjective intent to kill. Malice may be established by evidence
of conduct which is ‘reckless and wanton, and a gross deviation from a reasonable
standard of care, of such a nature that a jury is warranted in inferring that defendant
was aware of a serious risk of death or serious bodily harm.’” (citation omitted)); see

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also State v. Lowe, 318 S.W.3d 812, 818 (Mo. App. 2010) (affirming the use of
murder and voluntary manslaughter instructions, and the rejection of an involuntary
manslaughter instruction, where the defendant hit the victim in the head with a
hammer). The district court did not clearly err by applying the guideline for second-
degree murder.
Jawher also challenges the procedural and substantive reasonableness of his
overall sentence, but his arguments in this regard are without merit. We affirm the
judgment of the district court.
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