United States v. Isaac Hobbs

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0087p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 19-3343

v. │

│

│

ISAAC L. HOBBS, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:17-cr-00280-1—Benita Y. Pearson, District Judge.

Decided and Filed: March 20, 2020

Before: STRANCH, BUSH, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael D. Meuti, Kristen-Elise F. DePizzo, BENESCH, FRIEDLANDER,

COPLAN & ARONOFF LLP, Cleveland, Ohio, for Appellant. Brian M. McDonough, UNITED

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

LARSEN, Circuit Judge. Isaac Hobbs pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The district court accepted his plea and, finding

Hobbs to be an armed career criminal, sentenced Hobbs to fifteen years’ imprisonment. See

18 U.S.C. § 924(e). Hobbs appealed. While his appeal was pending, the Supreme Court decided

Rehaif v. United States, which held that, to obtain a conviction under § 922(g), the government

must prove that the defendant “knew he belonged to the relevant category of persons barred from

No. 19-3343 United States v. Hobbs Page 2

possessing a firearm.” 139 S. Ct. 2191, 2200 (2019). Here, that would require proof that Hobbs

knew he was a felon. Hobbs now challenges the district court’s jurisdiction and the validity of

his plea, basing these claims on Rehaif. Because Rehaif does not support Hobbs’s challenges, we

AFFIRM.

I.

Hobbs pleaded guilty on an indictment charging him with violating 18 U.S.C.

§ 922(g)(1), which forbids felons to possess firearms. The indictment reads, in relevant

part: “[Hobbs], having been previously convicted of crimes punishable by imprisonment for a

term exceeding one year, . . . did knowingly possess in and affecting interstate commerce a

firearm.” The indictment listed three predicate felonies: Assault on a Peace Officer, Attempted

Felonious Assault, and Aggravated Robbery with Firearm Specification. Hobbs had served a

six-year sentence for the aggravated-robbery conviction.

Hobbs pleaded guilty to the indictment’s charge pursuant to a written plea agreement.

Based on Hobbs’s prior convictions, the district court determined that Hobbs was an armed

career criminal under § 924(e) and sentenced him to the statutory minimum, fifteen years’

imprisonment. Hobbs filed a timely notice of appeal.

After Hobbs filed his appeal, the Supreme Court decided Rehaif, which held that to

obtain a conviction under § 922(g), “the Government must prove both that the defendant knew

he possessed a firearm and that he knew he belonged to the relevant category of persons barred

from possessing a firearm.” 139 S. Ct. at 2200. This court only recently recognized the latter

mens rea requirement, however, see United States v. Conley, __F. App’x__, 2020 WL 571324, at

*2 (6th Cir. Feb. 5, 2020), so Hobbs’s indictment did not expressly allege it and the district court

did not advise him of it when taking his guilty plea.

Hobbs now argues that the indictment was deficient because it failed explicitly to allege

that Hobbs knew he was a felon. This indictment defect, he argues, deprived the district court of

jurisdiction over his case and requires that we dismiss the indictment and vacate his conviction

and sentence. In the alternative, Hobbs argues that his plea was not knowing and voluntary

No. 19-3343 United States v. Hobbs Page 3

because the district court took his plea without informing him that knowledge of his felon status

was an element of the offense. Neither argument has merit.

II.

Jurisdictional Challenge. Hobbs first challenges the district court’s jurisdiction. To

establish a § 922(g)(1) violation after Rehaif, the government must show that Hobbs knew the

facts underlying his status. 139 S. Ct. at 2198. That is, the government must prove that Hobbs

knew that he had “been convicted in any court of[] a crime punishable by imprisonment for a

term exceeding one year.” 18 U.S.C. § 922(g)(1); see also United States v. Bowens, 938 F.3d

790, 797 (6th Cir. 2019), cert. denied sub nom. Hope v. United States, 140 S. Ct. 814 (2020)

(concluding that “in a prosecution under § 922(g)(3)” after Rehaif, the government “must prove

that defendants knew they were unlawful users of a controlled substance, but not . . . that they

knew unlawful users of controlled substances were prohibited from possessing firearms under

federal law”). Hobbs claims that, because the indictment did not allege this knowledge, the

indictment “fail[ed] to charge any federal offense.” He argues that this indictment defect

deprived the district court of subject matter jurisdiction over his case.

This argument is foreclosed by the Supreme Court’s decision in United States v. Cotton,

535 U.S. 625 (2002), and by our earlier opinion in United States v. Cor-Bon Custom Bullet Co.,

287 F.3d 576 (6th Cir. 2002). In Cotton, the Supreme Court rejected the argument that failure to

charge a sentence-enhancing drug quantity—an Apprendi element—deprived the court of

jurisdiction, declaring “that defects in an indictment do not deprive a court of its power to

adjudicate a case.” Cotton, 535 U.S. at 630. Before Cotton, our court in Cor-Bon held the same.

There, following a “majority of the circuits,” we “rejected the notion that the failure of an

indictment to allege an element of an offense charged prevents a district court from having

subject-matter jurisdiction.” 287 F.3d at 581.

Hobbs seeks to distinguish Cotton on the ground that Cotton involved the omission of an

Apprendi element—a sentence-enhancing drug quantity. Even without that element, Hobbs

argues, the indictment in Cotton still charged a federal narcotics offense, just one that carried a

lower penalty. Hobbs contends that his case is different because, without the knowledge element

No. 19-3343 United States v. Hobbs Page 4

demanded by Rehaif, his indictment charged him with no crime at all. That, Hobbs argues,

deprived the court of jurisdiction. We disagree.

Nothing in Cotton purported to limit its reasoning to the omission of Apprendi elements.

Instead, Cotton broadly rejected “the view that indictment omissions deprive a court of

jurisdiction.” 535 U.S. at 631. Moreover, as Hobbs acknowledges, our own binding decision in

Cor-Bon involved a non-Apprendi element—“the failure of the indictment to allege affirmative

acts of [tax] evasion.” 287 F.3d at 581. Finally, we note that our sister circuits have rejected the

notion that an indictment’s failure to allege the “knowledge-of-status” element required by

Rehaif deprives the court of jurisdiction. See United States v. Balde, 943 F.3d 73, 92 (2d Cir.

2019); United States v. Burghardt, 939 F.3d 397, 402 (1st Cir. 2019). That rule extends to other

mens rea elements as well. See United States v. Ketchen, 877 F.3d 429, 433 n.2 (1st Cir. 2017)

(noting that a “failure adequately to plead scienter in the indictment” is a “non-jurisdictional”

defect); United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (“Brown alleges that the

indictment was defective on its face because Count One did not include the required mens rea, an

essential element of the § 473 crime. . . . [W]e agree with the government that this type of

indictment defect is not jurisdictional.”). To the extent that Hobbs’s indictment may have been

deficient, it did not deprive the district court of jurisdiction.1

Plea Challenge. Next, Hobbs challenges his plea. He claims that because neither the

indictment, his plea agreement, nor his change-of-plea hearing made any reference to the

knowledge-of-status element, he did not have “notice of the true nature of the charge against

him” and so his plea was not knowing and voluntary. Appellant Br. at 17–18 (quoting Bousley v.

United States, 523 U.S. 614, 618 (1998)). But, as Hobbs acknowledges, he raised no objection

below; we therefore review this challenge for plain error. See United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004).

To prevail on plain error, Hobbs must identify “an ‘(1) error (2) that was obvious or clear,

(3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public

reputation of the judicial proceedings.’” United States v. Crawford, 943 F.3d 297, 308 (6th Cir.

1

Because Hobbs only challenged the indictment on jurisdictional grounds, we do not otherwise consider its

sufficiency.

No. 19-3343 United States v. Hobbs Page 5

2019) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)). An error

affects a defendant’s substantial rights if there is “‘a reasonable probability that, but for the

error,’ the outcome of the proceeding would have been different.” Molina-Martinez v. United

States, 136 S. Ct. 1338, 1343 (2016) (quoting Dominguez Benitez, 542 U.S. at 76, 82). The

defendant bears the burden of establishing that reasonable probability. Id. Hobbs has not done

so.

To establish the required prejudice, Hobbs must demonstrate “a reasonable probability

that, but for the [alleged failure to inform him of the knowledge-of-status element], he would not

have entered the plea.” Dominguez Benitez, 542 U.S. at 76. Hobbs candidly acknowledges that

“the record in this case may not reveal as much.” Instead, Hobbs’s reply brief states that he now

“has informed [appellate] counsel that, if the indictment had properly alleged the knowledge-of-

status element, he would have chosen not to plead guilty, but instead, to put the Government to

its burden of proof.” Appellant Reply Br. at 8. That is insufficient. The Supreme Court has

cautioned that “[c]ourts should not upset a plea solely because of post hoc assertions from a

defendant about how he would have pleaded,” but “should instead look to contemporaneous

evidence to substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct.

1958, 1967 (2017). Here, as Hobbs has acknowledged, no contemporaneous evidence suggests

that he would have rejected the plea deal had the indictment contained the knowledge-of-status

element.

That is unsurprising. “Put[ting] the Government to its burden of proof,” Appellant Reply

Br. at 8, would have cost Hobbs the potential benefit of his plea without gaining him anything. It

would have been exceedingly easy for the government to prove at trial that Hobbs knew he was a

felon when he committed the firearms offense. Hobbs had previously been convicted of

aggravated robbery in Ohio and had served six years in prison for that offense. No reasonable

juror could have believed that he did not know he had “been convicted . . . of[] a crime

punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). The

Supreme Court has cautioned that “a defendant facing such long odds will rarely be able to show

prejudice from accepting a guilty plea that offers him a better resolution than would be likely

after trial. . . . Where a defendant has no plausible chance of an acquittal at trial, it is highly

No. 19-3343 United States v. Hobbs Page 6

likely that he will accept a plea if the Government offers one.” Lee, 137 S. Ct. at 1966. It is true,

of course, that “unusual circumstances” exist. Id. at 1967. And where “contemporaneous

evidence” makes it reasonably probable that the defendant would have opted for trial despite the

long odds, id., “it is no matter that the choice may have been foolish.” Dominguez Benetiz,

542 U.S. at 85. But here, Hobbs admits that no such record exists. He has not shown, therefore,

a reasonable probability that he would not have entered his plea if he had been told of § 922(g)’s

knowledge-of-status requirement.

***

For the reasons stated, we AFFIRM the judgment of the district court.