United States v. James Innocent

      USCA11 Case: 19-10112    Date Filed: 10/08/2020   Page: 1 of 17



                                                                    [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 19-10112
                      ________________________

                D.C. Docket No. 0:18-cr-60224-KMM-1

UNITED STATES OF AMERICA,
                                                              Plaintiff-Appellee,

                                  versus

JAMES INNOCENT,
                                                        Defendant-Appellant.
                      ________________________

                            No. 18-15210
                      ________________________

                D.C. Docket No. 1:18-cr-20319-KMW-1

UNITED STATES OF AMERICA,
                                                              Plaintiff-Appellee,

                                  versus

ELIJAH HASAN JONES,
                                                        Defendant-Appellant.

                      ________________________

              Appeals from the United States District Court
                  for the Southern District of Florida
                     ________________________

                           (October 8, 2020)
         USCA11 Case: 19-10112       Date Filed: 10/08/2020    Page: 2 of 17



Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

      These appeals require us to decide whether to vacate the convictions of two

defendants whose indictments were defective in the light of Rehaif v. United

States, 

139 S. Ct. 2191

, 2194 (2019), and if not, whether to vacate one defendant’s

sentence under the Armed Career Criminal Act. Juries convicted Elijah Jones and

James Innocent of possessing firearms as felons. 18 U.S.C. § 922(g)(1). On direct

appeal, each of them challenges his indictment as defective for failing to allege he

knew he was a felon, as required by Rehaif. Because neither challenged his

indictment before the district court, and neither can establish that he did not know

he was a felon, we affirm both of their convictions. Jones additionally argues that

he should not have been sentenced under the Armed Career Criminal Act. But he

waived that challenge during his sentencing hearing, and the district court did not

plainly err in any event.

                                I. BACKGROUND
      Innocent and Jones both committed the crime of possessing a firearm as a

felon. The facts underlying their convictions are different, but their appeals share

common issues. We describe each one in turn.




                                          2
         USCA11 Case: 19-10112        Date Filed: 10/08/2020    Page: 3 of 17



                                  A. James Innocent

      On June 11, 2018, law enforcement officers arrived at James Innocent’s

apartment in Pompano Beach, Florida, to evict him. At the door, an officer noticed

a bulge in Innocent’s right front pocket. A frisk revealed the bulge to be a grocery

bag containing about $2,300 in cash. Inside the apartment, officers noticed a

firearm next to a mattress in the room where Innocent slept. They also noticed

drugs in plain view. When they searched the apartment, officers found a

smorgasbord of drugs: heroin, fentanyl, crack cocaine, methamphetamine, Xanax,

MDMA, and marijuana, along with digital scales, body armor, and ammunition.

      A grand jury indicted Innocent on counts of possessing drugs with intent to

distribute them, 21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of drug

trafficking, 18 U.S.C. § 924(c)(1)(A)(i), and possessing a firearm as a convicted

felon

, id. § 922(g)(1). But

the indictment did not allege that Innocent knew he was

a felon when he possessed the firearm or cite the provision for that element

, id. § 924(a)(2). And

he did not challenge it on that basis before the district court.

      Before trial, a forensic psychologist confirmed that Innocent was competent

to be tried. Innocent’s evaluation reflected a low intelligence quotient score. It also

detailed that Innocent completed high school in special education classes, earned

average grades, and was never held back in school. And it reported that Innocent

“did not exert adequate effort on cognitive tasks” during the evaluation.



                                           3
         USCA11 Case: 19-10112        Date Filed: 10/08/2020   Page: 4 of 17



      At trial, Innocent stipulated that he had been convicted of a felony offense

before June 11, 2018. His four felony convictions, stemming from three separate

prosecutions, were cocaine possession, Fla. Stat. § 893.13(1)(a)(1),

§ 775.082(3)(d); cocaine and marijuana possession

, id. § 893.13(1)(a)(1)–(2), §

775.082(3)(d)–(e); and two convictions for possessing cocaine with intent to sell

, id. § 893.13(1)(a)(1). A

jury convicted Innocent of all the counts charged in the

indictment, and the district court sentenced him to 360 months of imprisonment.

                                   B. Elijah Jones

      On the evening of January 10, 2018, two police officers patrolling the Little

Haiti neighborhood of Miami spotted Jones standing by a car’s passenger-side

window and speaking to the driver. One officer executed a U-turn in his marked

vehicle to tell the driver he was displaying a parking permit incorrectly. As the

officer turned his car around, he saw Jones look at the marked vehicle, pull a dark

object from his waistband, and toss it inside the car before walking away. On

arrival, the officers found a loaded gun on the car’s passenger-side floorboard.

After detaining Jones and warning him of his rights, see Miranda v. Arizona, 

384 U.S. 436

, 444–45 (1966), an officer asked Jones if the firearm was his. Jones said

it belonged to his girlfriend. The officer then asked if the firearm was in Jones’s

possession. Jones denied possessing the gun. Asked a second time, he admitted to

possessing the gun. The officer confirmed Jones was a felon and arrested him.



                                          4
             USCA11 Case: 19-10112     Date Filed: 10/08/2020     Page: 5 of 17



          A grand jury returned a single-count indictment charging Jones with

possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). Like Innocent’s indictment,

Jones’s indictment did not allege Jones knew he was a felon or cite section

924(a)(2). Like Innocent, Jones did not challenge the indictment on that basis.

Instead, he raises that challenge for the first time on appeal.

          Although Jones’s trial did not focus on whether he knew he was a felon,

several moments bore on that issue. During its opening statement, the government

explained that, “[a]s [Jones] saw [the two] police cars approach him, he dropped

the gun into the passenger side of that vehicle. The defendant knew he was a

convicted felon and knew he couldn’t possess a firearm or even a single round of

ammunition, but he had a loaded gun with 15 rounds of ammunition.” The jury

heard testimony that Jones told the officers on the scene that he was a felon. Jones

also stipulated to being a felon. And during closing argument, the government

noted that Jones’s decision to quickly discard the gun when officers approached

suggested that he knew he was not allowed to possess it. Last, the government

sought permission to introduce evidence of Jones’s previous Florida felon-in-

possession conviction, but the judge denied the motion because the evidence would

have been unnecessarily prejudicial based on the other evidence of Jones’s felon

status.




                                            5
          USCA11 Case: 19-10112        Date Filed: 10/08/2020     Page: 6 of 17



       The jury convicted Jones, and the district court sentenced him to 180 months

of imprisonment and four years of supervised release based on the 15-year

mandatory minimum imposed by the Armed Career Criminal Act for defendants

who have previously committed at least three violent felonies or serious drug

crimes. 18 U.S.C. § 924(e). Jones had three such convictions: one for aggravated

assault with a firearm, Fla. Stat. § 784.021; one for resisting an officer with

violence

, id. § 843.01; and

one for selling drugs at a school

, id. § 893.13(1)(c). During

his sentencing hearing, Jones conceded that all three convictions

counted as qualifying offenses under the Act. His attorney explained that he

“wanted to” object to the guideline calculation. Specifically, he said he “would

have loved to file” an objection arguing that Jones did “not qualify as an armed

career criminal.” But after he “researched and researched and researched and

researched,” he couldn’t find a ground to object to viewing “the aggravated assault

[with] a firearm [conviction] from 2000” as a violent felony. “[T]he 11th Circuit,”

he explained, “has found that aggravated assault with a firearm, that’s a crime of

violence. So [he] couldn’t object to that.” He reaffirmed that he had “consulted

with other people in [his] office” and couldn’t identify “a good-faith basis to file

any” objections. “And I think, unfortunately,” he concluded, “it looks like the

calculations are correct that [Jones] does qualify. . . . I don’t like it. But I couldn’t

file a legal objection[.]”At the end of the hearing, when the judge asked if there



                                            6
          USCA11 Case: 19-10112       Date Filed: 10/08/2020    Page: 7 of 17



were any objections to the sentence he had imposed, Jones reiterated, “[F]or

sentencing purposes, we don’t have any objections to the sentencing.”

                           II. STANDARD OF REVIEW

      We review for plain error issues raised for the first time on appeal. United

States v. Reed, 

941 F.3d 1018

, 1021 (11th Cir. 2019). We may reverse an error that

was plain and that affects the defendant’s substantial rights, provided it also

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Lejarde-Rada, 

319 F.3d 1288

, 1290 (11th Cir. 2003). An error is

plain if it is “clear” or “obvious,” United States v. Olano, 

507 U.S. 725

, 734

(1993)—that is, if “the explicit language of a statute or rule” or “precedent from

the Supreme Court or this Court directly resolv[es]” the issue, United States v.

Hesser, 

800 F.3d 1310

, 1325 (11th Cir. 2015) (quoting Lejarde-

Rada, 319 F.3d at 1291

). We evaluate the entire record, including evidence the jury did not hear,

when reviewing for plain error. 

Reed, 941 F.3d at 1021

. The party challenging the

error bears the burden of proving that he had a “reasonable probability of a

different result” absent the error. Dell v. United States, 

710 F.3d 1267

, 1276 (11th

Cir. 2013) (internal quotation marks omitted). If a party invited the error, we may

not review it on appeal. United States v. Love, 

449 F.3d 1154

, 1157 (11th Cir.

2006).




                                           7
          USCA11 Case: 19-10112         Date Filed: 10/08/2020     Page: 8 of 17



                                   III. DISCUSSION

       Innocent and Jones argue that we should vacate their convictions in the light

of the decision of the Supreme Court in Rehaif. Because neither defendant raised

this argument in the district court, we review for plain error. In addition, Jones

challenges his career criminal sentence on the ground that one of the crimes the

district court treated as a crime of violence, aggravated assault with a firearm, is

not categorically a violent felony under the Armed Career Criminal Act. We

address the arguments in turn, and we reject both.

               A. Rehaif Does Not Entitle Innocent or Jones to Relief.

       Federal law prohibits anyone “who has been convicted in any court of[] a

crime punishable by imprisonment for a term exceeding one year” from possessing

a firearm. 18 U.S.C. § 922(g)(1). Anyone who “knowingly violates” that provision

“shall be fined . . . , imprisoned . . . , or both.”

Id. § 924(a)(2). Until

last year, we

interpreted that language to mean that a defendant could be convicted if he knew

he possessed a firearm. See, e.g., United States v. Jackson, 

120 F.3d 1226

, 1229

(11th Cir. 1997). The Supreme Court clarified in Rehaif v. United States that a

defendant must know both that he possesses a firearm and that he has been

convicted of a crime punishable by imprisonment for more than a year to violate

section 

922(g)(1). 139 S. Ct. at 2194

.




                                             8
          USCA11 Case: 19-10112        Date Filed: 10/08/2020   Page: 9 of 17



      After Rehaif, many defendants on direct appeal challenged their indictments

as defective because the indictments omitted the previously unnecessary

knowledge-of-status element. Innocent and Jones are two such defendants. Neither

defendant challenged his indictment before the district court, so we review for

plain error. 

Reed, 941 F.3d at 1021

.

      As with other Rehaif errors, the missing element in Innocent’s and Jones’s

indictments satisfies the first two elements of the plain-error test. The indictments

were erroneous because they did not include an element of the crime charged,

knowledge of felon status. 

Rehaif, 139 S. Ct. at 2194

, 2200. The error was plain

because it is evident at the time of appellate review. Henderson v. United States,

568 U.S. 266

, 277 (2013); 

Reed, 941 F.3d at 1021

. But Innocent and Jones fail to

meet the third element of the plain-error test because the error did not affect their

substantial rights. Neither can satisfy his burden of proving a reasonable

probability that he would have obtained a different result but for the error, 

Reed, 941 F.3d at 1021

, because circumstantial evidence establishes that each knew of

his felon status.

      We start with Innocent. He was convicted of four felonies on three

occasions. Most people convicted of a felony know that they are felons. See United

States v. Miller, 

954 F.3d 551

, 559 (2d Cir. 2020). And someone who has been

convicted of felonies repeatedly is especially likely to know he is a felon. See



                                           9
         USCA11 Case: 19-10112       Date Filed: 10/08/2020    Page: 10 of 17



Reed, 941 F.3d at 1021

. Had the issue been contested at trial, Innocent’s four

felony convictions would have provided the government powerful evidence that he

knew he was a felon.

      Innocent points to his low intelligence quotient score as suggesting that he

did not know he was a felon. But the competence evaluation qualified the score by

pointing out that Innocent “did not exert adequate effort” during the examination.

And Innocent completed high school on time and with average grades. Nor does

the evaluation or any other evidence in the record evidence that Innocent’s

intelligence was impaired to the extent that he could not understand that he was a

felon. So Innocent’s competence evaluation does not undermine our confidence in

the outcome.

      When the record says little or nothing about the effect of the error, “the

burden is the decisive factor.” United States v. Rodriguez, 

398 F.3d 1291

, 1300

(11th Cir. 2005). If the defendant preserved the error, the government bears the

burden of showing that it was harmless. 

Olano, 507 U.S. at 734

. But on plain-error

review, “[i]t is the defendant rather than the Government who bears the burden of

persuasion with respect to prejudice.”

Id. When a defendant

“has not presented any

evidence that” the error affected the outcome, he “fails to meet his burden under

the . . . plain error test.” United States v. Taylor, 

417 F.3d 1176

, 1183 (11th Cir.

2005).



                                          10
         USCA11 Case: 19-10112       Date Filed: 10/08/2020    Page: 11 of 17



      True, there is less evidence that Innocent knew he was a felon than there is

for some defendants in his shoes. For example, we have previously held that

serving more than a year in prison provides circumstantial evidence of knowledge

of felon status. 

Reed, 941 F.3d at 1022

; United States v. Moore, 

954 F.3d 1322

,

1337–38 (11th Cir. 2020). Innocent never served more than a year in prison for any

of his convictions, although he twice received a sentence of 364 days. But we have

never suggested that that helpful fact is essential. See Parker v. Scrap Metal

Processors, Inc., 

386 F.3d 993

, 1004 n.11 (11th Cir. 2004); Bryan A. Garner, et al.,

The Law of Judicial Precedent § 6, at 82 (2016). And the point remains that

Innocent, not the government, bears the burden of proof on plain error review, and

he cannot satisfy it.

      Innocent’s appeal falls short of the kind of record on which we have granted

the relief he seeks. We held that Oniel Russell showed that a Rehaif error affected

his substantial rights when he actively litigated his prohibited status during his

felon-in-possession trial and maintained on several occasions that he was allowed

to possess a firearm. United States v. Russell, 

957 F.3d 1249

, 1253–54 (11th Cir.

2020). We decided that Russell had shown a reasonable probability that a jury

could conclude he lacked the knowledge Rehaif requires.

Id. But Innocent, unlike

Russell, can point to no convincing reason to think he did not know of his

prohibited status despite being convicted of four felonies.



                                          11
         USCA11 Case: 19-10112      Date Filed: 10/08/2020    Page: 12 of 17



      Jones’s argument has even less to commend it. Abundant evidence reflects

Jones’s knowledge that he had been convicted of a felony. Jones told an officer at

the scene that he was a felon. See 

Reed, 941 F.3d at 1021

–22. And he had

previously been convicted of being a felon in possession of a firearm, which is

strong evidence he knew he was a felon. See, e.g., United States v. Hicks, 

958 F.3d 399

, 402 (5th Cir. 2020). Jones, as the government argued at trial, also behaved in

a way that suggested he knew he was not allowed to possess a gun when he

immediately dropped the gun into someone else’s car and left the scene when he

saw police approaching. See United States v. Singer, 

963 F.3d 1144

, 1159 (11th

Cir. 2020); United States v. Brandon, 

965 F.3d 427

, 433 (5th Cir. 2020). Like

Innocent, Jones also had been convicted of multiple felonies. See 

Reed, 941 F.3d at 1021

. And Jones served many years in prison for his previous convictions. See

id. at 1022;


Moore, 954 F.3d at 1337

–38. So Jones’s Rehaif argument fails.

      To avoid the evidence they knew they were felons, Innocent and Jones resist

plain-error review in the first place. They argue that indictment defects are always

jurisdictional, so they should receive de novo review. They alternatively argue that

the indictments failed to charge a federal offense because they omitted an element

or because they cited only section 922, which makes criminal firearm possession

for felons, without also citing section 924, which supplies the penalty and element

of mens rea. We have already rejected both of those arguments. 

Moore, 954 F.3d at 12

         USCA11 Case: 19-10112       Date Filed: 10/08/2020   Page: 13 of 17



1332–37; United States v. McClellan, 

958 F.3d 1110

, 1117–18 (11th Cir. 2020)

(following Moore).

      Innocent and Jones also argue that our decision in United States v. Lang, 

732 F.3d 1246

, 1249 (11th Cir. 2013), compels us to vacate their convictions even if

they cannot show prejudice from their defective indictments, but we disagree. Lang

vacated a conviction based on a defective indictment without requiring a showing

of prejudice because the indictment affirmatively alleged non-criminal conduct

, id., while their indictments

merely omitted an element. In fact, far from requiring

automatic reversal for all indictment defects, Lang prefaced its holding by

acknowledging that some indictment defects do require a showing of prejudice.

Id. (quoting United States

v. Pena, 

684 F.3d 1137

, 1148 n.8 (11th Cir. 2012)). Reed,

not Lang, controls. Innocent and Jones must prove prejudice for this error.

      Jones additionally argues that the strictures of plain-error review should not

apply because novelty excuses procedural default. Rehaif is novel, he says, because

it overturned circuit precedent that foreclosed the argument during Jones’s trial.

But procedural default, a set of rules governing applications for the writ of habeas

corpus, is different from plain-error review. And even if it was not, Rehaif was not

“truly novel” in the sense necessary to excuse procedural default. United States v.

Bane, 

948 F.3d 1290

, 1296–97 (11th Cir. 2020); see McCarthan v. Dir. of

Goodwill Indus.-Suncoast, Inc., 

851 F.3d 1076

, 1087 (11th Cir. 2017) (en banc).



                                         13
         USCA11 Case: 19-10112       Date Filed: 10/08/2020    Page: 14 of 17



    B. The District Court Correctly Sentenced Jones under the Armed Career
                                   Criminal Act.

      Jones next challenges his career criminal sentence. See 18 U.S.C. § 924(e).

The Armed Career Criminal Act imposes a mandatory minimum sentence of

fifteen years of imprisonment for felons who possess firearms and have three

previous convictions for “a violent felony or a serious drug offense, or both,

committed on occasions different from one another.”

Id. § 924(e)(1). The

Act

defines a “violent felony,” as relevant for this appeal, as “any crime punishable by

imprisonment for a term exceeding one year . . . that[] has as an element the use,

attempted use, or threatened use of physical force against the person of another.”

Id. § 924(e)(2)(B). We

decide whether a defendant’s crime is a violent felony not

by looking at the facts of the crime he committed, but instead by assessing the

crime as a categorical matter. United States v. Stitt, 

139 S. Ct. 399

, 405 (2018).

Under this “categorical approach,” we ask whether the least culpable conduct

encompassed by a criminal statute necessarily involves the use, attempted use, or

threatened use of physical force against a person. See Moncrieffe v. Holder, 

569 U.S. 184

, 190–91 (2013).

      Jones argues that his 2000 Florida conviction for aggravated assault with a

firearm—which involved threatening to kill a woman during an argument and then

discharging his gun into the air three times—was not a violent felony. He

maintains Florida courts permit aggravated assault convictions on evidence


                                          14
         USCA11 Case: 19-10112        Date Filed: 10/08/2020    Page: 15 of 17



proving only recklessness, and we have held that felonies with a mens rea of

recklessness are not categorically violent felonies. United States v. Palomino

Garcia, 

606 F.3d 1317

, 1334–36 (11th Cir. 2010).

      Jones waived this argument before the district court. During Jones’s

sentencing hearing, his attorney explained that he “wanted to” object to the

presentence investigation report’s conclusion that the Act required a 15-year

sentence, and he “researched and researched and researched and researched,”

“consulted with other people in [his] office,” and still “couldn’t file a legal

objection.” His counsel specifically conceded that we have held “that aggravated

assault with a firearm, that’s a crime of violence. So [he] couldn’t object to that.”

And he conceded that “it looks like the calculations are correct that [Jones] does

qualify” for a sentence under the Armed Career Criminal Act. The doctrine of

invited error prevents us from considering the arguments Jones expressly

disclaimed before the district court. 

Love, 449 F.3d at 1157

.

      Jones argues he did not invite the error because he did not stipulate to his

sentence or act to cause the admission of inadmissible evidence, “but simply failed

to object.” But he did more than “simply fail[] to object” when his explanation of

why he agreed with the presentence report filled three pages of the sentencing

hearing transcript.




                                           15
         USCA11 Case: 19-10112         Date Filed: 10/08/2020     Page: 16 of 17



      Even if invited error did not apply, and even if Jones is right that the district

court erred, Jones at least failed to raise the error before the district court, so plain

error review applies. United States v. Campbell, 

473 F.3d 1345

, 1347–48 (11th Cir.

2007); United States v. Jones, 

899 F.2d 1097

, 1102–03 (11th Cir. 1990), overruled

in part on other grounds, United States v. Morrill, 

984 F.2d 1136

, 1137 (11th Cir.

1993) (en banc). The error is not plain. We have already held that Florida

aggravated assault is a crime of violence under the Act. Turner v. Warden Coleman

FCI (Medium), 

709 F.3d 1328

, 1338 (11th Cir. 2013). Jones attempts to avoid that

holding on the ground that it conflicts with two of our earlier decisions: United

States v. Palomino Garcia, 

606 F.3d 1317

, and United States v. Rosales-Bruno,

676 F.3d 1017

(11th Cir. 2012). He also argues that three intervening Supreme

Court decisions—Moncrieffe v. Holder, 

569 U.S. 184

; Descamps v. United States,

570 U.S. 254

(2013); and Mathis v. United States, 

136 S. Ct. 2243

(2016)—have

undermined it. We have rejected most of Jones’s arguments already. United States

v. Golden, 

854 F.3d 1256

, 1256–57 (11th Cir. 2017). And even if the arguments

we have not already rejected were to convince us the district court erred, any error

is by no means obvious. See 

Olano, 507 U.S. at 734

. No “precedent from the

Supreme Court or this Court,” or “explicit language of a statute or rule,” “directly

resolv[ed]” the issue in Jones’s favor. 

Hesser, 800 F.3d at 1325

(quoting Lejarde-

Rada, 319 F.3d at 1291

). The district court did not plainly err.



                                            16
        USCA11 Case: 19-10112   Date Filed: 10/08/2020   Page: 17 of 17



                           IV. CONCLUSION

      We AFFIRM Jones’s and Innocent’s convictions and AFFIRM Jones’s

sentence.




                                    17
Share Review:
Yes it is. Based on the user review published on NO-SCAM.com, it is strongly advised to avoid United States v. James Innocent in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from United States v. James Innocent. Lack of accountability is a major factor in determining trust.
Because unlike No-Scam.com, other websites get paid to remove negative reviews and replace them with fake positive ones.
United States v. James Innocent is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
The above review and comments against United States v. James Innocent were submitted by NO-SCAM.com user(s) and have been published as-is. NO-SCAM.com does not edit, alter or remove content published by it’s users. There’s no amount of money a business can pay to manipulate their reviews or complaints and NO-SCAM.com will NOT entertain any request to remove the review on United States v. James Innocent at any cost whatsoever.
>