United States v. Kenneth Door

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30213

Plaintiff-Appellee,

D.C. No.

v. 3:12-cr-05126-RBL-1

KENNETH RANDALE DOOR,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted September 4, 2020

Seattle, Washington

Filed April 28, 2021

Before: Jay S. Bybee and Daniel P. Collins, Circuit

Judges, and James Alan Soto,* District Judge.

Opinion by Judge Bybee

*

The Honorable James Alan Soto, United States District Judge for the

District of Arizona, sitting by designation.

2 UNITED STATES V. DOOR

SUMMARY**

Criminal Law

The panel affirmed a criminal judgment in a case in which

Kenneth Randale Door was convicted for being a felon in

possession of a firearm (18 U.S.C. §§ 922(g)(1)) and a felon

convicted of a crime of violence in possession of body armor

(18 U.S.C. § 931(a)).

The panel held that in light of Rehaif v. United States, 139

S. Ct. 2191 (2019), the district court committed plain error by

failing to require the government to prove Door’s knowledge

of his prohibited status and omitting the knowledge element

from the indictment and jury instructions. The government

admitted that Door’s § 922(g)(1) conviction is governed by

Rehaif, but contested the application of Rehaif with respect to

his § 931(a) conviction. The government asserted that Rehaif

only requires the government to prove that a defendant knew

of his status as a felon, not that he was a felon convicted of a

crime of violence. The panel rejected this contention,

concluding that Rehaif requires the government to prove that

a defendant charged with violating § 931(a) knew he had a

felony conviction and that the felony of which he was

convicted had “as an element the use, attempted use, or

threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a). The panel held that

Door cannot show that these errors affected the fairness,

integrity, or public reputation of the judicial proceedings.

**

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. DOOR 3

The panel held that the district court did not clearly err in

applying an obstruction of justice enhancement pursuant to

U.S.S.G. § 3C1.1 based on Door’s pre-trial threats. The panel

rejected Door’s claims that the sentence was procedurally and

substantively unreasonable.

COUNSEL

Carlton F. Gunn; Law Office of Carlton F. Gunn, Pasadena,

California, for Defendant-Appellant.

Michael S. Morgan (argued), Assistant United States

Attorney; Brian T. Moran, United States Attorney; United

States Attorney’s Office, Seattle, Washington; for Plaintiff-

Appellee

OPINION

BYBEE, Circuit Judge:

Defendant Kenneth Randale Door was convicted in 2014

for being a felon in possession of a firearm and a felon

convicted of a crime of violence in possession of body armor.

Relying on the Supreme Court’s intervening opinion in

Rehaif v. United States, 139 S. Ct. 2191 (2019), Door argues

that his convictions cannot stand because the government

failed to prove, the indictment failed to allege, and the jury

instructions failed to require that he knew of his prohibited

statuses. Door further asserts that the district court erred in

applying the obstruction of justice enhancement during

sentencing. Finally, Door challenges his sentence as both

procedurally and substantively unreasonable. We have

4 UNITED STATES V. DOOR

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We affirm.

I. FACTS AND PROCEEDINGS

A. Search, Indictment, and Trial

Kenneth Door has an extensive criminal history, including

convictions for burglary, theft, assault, and harassment. In

2011, an informant told an agent of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives that Door possessed guns

and was selling methamphetamine out of his home. Because

Door was on probation in Washington, the agent contacted a

Washington State Community Corrections officer, who

conducted a probation search of Door’s house in Tacoma.

The search revealed two pistols, multiple rounds of

ammunition for the pistols, two military grade ballistic vests,

an explosive device known as a “seal bomb,” two digital

scales, drug packaging materials, and two drug pipes

containing methamphetamine residue. Door was arrested

shortly thereafter.

While in the county jail, and before he was indicted on

federal charges, Door requested a meeting with his federal

case agent. During that visit, Door admitted that the guns,

vests, and seal bomb belonged to him. After the agent

testified at Door’s suppression hearing, Door told his attorney

that he intended to have the agent killed. The attorney asked

to be removed from the case and reported the threats to the

government. After his trial, Door made additional threats in

front of other inmates that he would have the case agent and

his former attorney killed.

UNITED STATES V. DOOR 5

In March 2012, Door was indicted in United States

District Court for the Western District of Washington and

charged with being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); a

felon convicted of a crime of violence in possession of body

armor in violation of 18 U.S.C. §§ 931(a) and 924(a)(7); and,

a felon in possession of explosives in violation of 18 U.S.C.

§§ 842(i)(1) and 844(a)(1). Door entered the following

stipulation regarding his felon and violent felon status:

Prior to November 9, 2011, Kenneth Door, the

defendant herein, had been convicted of a

felony crime punishable by a term of

imprisonment exceeding one year. That is a

crime of violence, as defined by law, and

therefore was a convicted felon and a person

convicted of a felony that is a crime of

violence at the time of the events that are the

subject of this prosecution.

Door proceeded to trial and was convicted on all counts.

B. Sentencing and First Appeal

The Probation Office (Probation) recommended a base

offense level of 24 due to “at least two felony convictions of

either a crime of violence or a controlled substance offense.”

Probation also recommended a number of Sentencing

Guidelines (Guidelines) enhancements, including for

possession of a destructive device (seal bomb), possession of

a stolen firearm, possession of firearms in connection with

another felony offense (drug trafficking), and obstruction of

justice (based on Door’s threats to kill the case agent and

others). Probation also concluded that Door was an armed

6 UNITED STATES V. DOOR

career criminal under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), based on his prior convictions

for attempting to elude a police vehicle, multiple second-

degree burglary convictions, and second-degree assault with

a deadly weapon.1 The enhancements, combined with Door’s

criminal history category of VI, produced a Guidelines range

of 262–327 months. Probation recommended 300 months.

Over Door’s objections, the district court found that the

enhancements and the ACCA applied and sentenced Door to

300 months.

On direct appeal, we found that the destructive device

enhancement did not apply to the seal bomb, and that the

district court made insufficient findings on the obstruction of

justice and the “in connection with another felony”

enhancements. United States v. Door, 647 F. App’x 755, 757

(9th Cir. 2016), as amended by 668 F. App’x 784 (9th Cir.

2016). We initially deferred ruling on the ACCA issue but

ultimately held that Door’s burglary convictions were not

violent felonies under the ACCA and vacated Door’s

sentence accordingly. United States v. Door, 656 F. App’x

376, 376–77 (9th Cir. 2016).

C. Re-sentencing and Second Appeal

On remand, Probation again recommended a base offense

level of 24, reasoning that Door’s prior Washington state

convictions for second-degree assault with a deadly weapon

and felony harassment constituted crimes of violence.

1

The ACCA categorization did not increase the Guidelines offense

level, but it did increase the statutory maximum sentence to life and

trigger a statutory mandatory minimum sentence of 15 years. 18 U.S.C.

§ 924(e).

UNITED STATES V. DOOR 7

Probation further recommended enhancements for possession

of a stolen firearm, possession of a firearm in connection with

another felony, and obstruction of justice. The

enhancements, coupled with Door’s criminal history category

of VI, produced a Guidelines range of 210–262 months.

Probation recommended a 276-month sentence due to Door’s

extensive criminal history.

Over Door’s objections, the district court determined at

sentencing that the second-degree assault and felony

harassment convictions qualified as crimes of violence under

the required categorical approach. The district court also

ruled that the various enhancements were supported by

sufficient evidence. During sentencing, the district court

noted its “long-standing criticism” of the categorical

approach but acknowledged that it was “duty-bound” to re-

sentence Door in accordance with the law. The district court

imposed the recommended sentence of 276 months, followed

by 5 years of supervised release. On Door’s second appeal,

we ruled that a felony harassment conviction is a crime of

violence for Guidelines purposes but that Door’s conviction

for second-degree assault is not and remanded accordingly for

a second re-sentencing. United States v. Door, 917 F.3d

1146, 1152–55 (9th Cir. 2019).2

2

In a concurrently filed memorandum disposition, we also determined

that Door’s felony harassment conviction constitutes a crime of violence

supporting his conviction for unlawful possession of body armor, and that

the enhancement for possessing a firearm in connection with another

felony was warranted. United States v. Door, 756 F. App’x 757, 758–59

(9th Cir. 2019). We declined to order reassignment on remand. Id.

8 UNITED STATES V. DOOR

D. Second Re-sentencing and Current Appeal

At the second re-sentencing, Probation recommended a

base offense level of 20 based on Door’s felony harassment

conviction. Probation also recommended enhancements for

possession of a stolen firearm, possession of a firearm in

connection with another felony, and obstruction of justice.

The enhancements, coupled with Door’s criminal history

category of VI, produced a Guidelines range of 140 to

175 months. Probation again recommended 276 months.

The government did likewise. Door objected to all the

enhancements.

At the start of the re-sentencing hearing, the district court

again expressed frustration with the categorical approach

jurisprudence. Of Door, the district court stressed, “I

consider Mr. Door to perhaps be the most dangerous

defendant I have had in 18 or 19 years . . . . He did everything

and then more to justify his sentence, with the threats.”

Before imposing the sentence, the district court made clear

that it had heard argument and reviewed all of the material

submitted from both sides. In response to defense counsel’s

argument that Door’s recent good behavior in prison merited

mitigation, the district court agreed that re-sentencing

afforded an opportunity for “a mid-course correction” but

noted that Door was being sentenced for his past behavior,

“which is very serious.” The district court further observed

that “[t]he guidelines are a guide, unless they are not.”

In imposing the sentence, the district court adopted the

factual assertions in the PSR and applied the sentencing

enhancements. Relevant to this appeal, the district court

found—over Door’s objection—that the obstruction of justice

enhancement was warranted because it involved “the worst

UNITED STATES V. DOOR 9

kind of abuse of our system, including threats to officers.”

The district court then adopted the recommendation from

Probation and the government for 276 months, followed by

three years of supervised release.

In the present appeal, Door raises four issues: (1) whether

his felon in possession of firearm and violent felon in

possession of body armor convictions must be vacated

because the government failed to prove, the indictment failed

to allege, and the jury instructions failed to require that he

knew of his prohibited statuses when he possessed the

firearms and body armor, as required by Rehaif v. United

States, 139 S. Ct. 2191 (2019); (2) whether the district erred

in applying the Guideline enhancement for obstruction of

justice; (3) whether his sentence was procedurally and

substantively unreasonable; and (4) whether we should

reassign the case in the event of remand. We will consider

each issue in turn. Because we conclude that there was no

error in the first three issues raised, we need not reach the

question of reassignment, which in any event has been

mooted by the retirement of the district judge who imposed

the sentence.

II. KNOWING POSSESSION AND REHAIF

We first consider Door’s claim that the Supreme Court’s

intervening decision in Rehaif requires us to vacate his

convictions for being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1)3 and a felon convicted of

3

18 U.S.C. § 922(g) makes it “unlawful for any person—(1) who has

been convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year . . . to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or

10 UNITED STATES V. DOOR

a crime of violence in possession of body armor in violation

of 18 U.S.C. § 931(a)(1).4 Door asserts that the evidence

presented at trial was insufficient to sustain his convictions

because the government failed to prove he knew of his

prohibited statuses and, similarly, the indictment and jury

instructions omitted the requisite knowledge element. We

will begin with a discussion of Rehaif and then address

Door’s challenge to the sufficiency of the evidence.

A. Rehaif and Knowing Violations

Hamid Rehaif was convicted of violating 18 U.S.C.

§ 922(g)(5)(A) for being an alien unlawfully in the United

States in possession of firearms. See Rehaif, 139 S. Ct.

at 2194. A separate provision provides that any person who

“knowingly violates” § 922(g) shall be fined or imprisoned.

18 U.S.C. § 924(a)(2). Rehaif had come to the United States

on a student visa but had been dismissed from school, making

his presence unlawful. Rehaif, 139 S. Ct. at 2194. He was

arrested after he visited a firing range to shoot two firearms,

and was charged with violating § 922(g). Id. Rehaif argued

that although he had possessed firearms, the district court

ammunition . . . .” Section 924(a)(2) provides: “Whoever knowingly

violates subsection . . . (g) . . . of section 922 shall be fined as provided in

this title, imprisoned not more than 10 years, or both.”

4

18 U.S.C. § 931(a) makes it “unlawful for a person to purchase,

own, or possess body armor, if that person has been convicted of a felony

that is—(1) a crime of violence (as defined in section 16).” Section 16

provides, in relevant part: “The term ‘crime of violence’ means—(a) an

offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” Section

924(a)(7) states: “Whoever knowingly violates section 931 shall be fined

under this title, imprisoned not more than 3 years, or both.”

UNITED STATES V. DOOR 11

erred in instructing the jury that the government did not have

to prove Rehaif knew he was in the country unlawfully. Id.

at 2195. The Court agreed with Rehaif that the term

“knowingly” in § 924 applied to Rehaif’s conduct (possessing

the firearm) and his status (being an alien unlawfully in the

United States). Id. at 2200. Because it was not clear whether

the district court had correctly instructed the jury that it must

find that Rehaif knew he was out of status when he left

school, the Court reversed and remanded for further

proceedings. Id.

Although neither Door nor the government anticipated the

Court’s decision in Rehaif, Door gets the benefit of Rehaif on

his direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328

(1987) (“[A] new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a ‘clear

break’ with the past.”). The government admits that Door’s

conviction under 18 U.S.C. § 922(g)(1) for being a felon in

possession of a firearm is governed by Rehaif, see United

States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019), but

it contests the application of Rehaif with respect to Door’s

conviction for being a violent felon in possession of body

armor pursuant to 18 U.S.C. § 931(a). The government

asserts that Rehaif only requires the government to prove that

a defendant knew of his status as a felon, not that he knew he

was a felon convicted of a crime of violence.

We think such a construction is incompatible with

Rehaif’s analysis. In Rehaif, the Supreme Court held that

“[t]he term ‘knowingly’ in § 924(a)(2) modifies the verb

‘violates’ and its direct object, which in this case is § 922(g).”

139 S. Ct. at 2195. The Court reasoned that “[a]s a matter of

12 UNITED STATES V. DOOR

ordinary English grammar, we normally read the statutory

term knowingly as applying to all the subsequently listed

elements of the crime.” Id. at 2196 (citation and internal

quotation marks omitted). The direct object, § 922(g),

contained a “status element,” namely that Rehaif was “an

alien . . . illegally or unlawfully in the United States.” Id. at

2195–96 (quoting 18 U.S.C. § 922(g)(5)(A)). The Court

found that “[a]pplying the word ‘knowingly’ to the

defendant’s status in § 922(g) helps advance the purpose of

scienter, for it helps to separate wrongful from innocent acts.”

Id. at 2197. Because “the possession of a gun can be entirely

innocent” it is “the defendant’s status, and not his conduct

alone, that makes the difference.” Id. Thus, the Court

expressed concern that, under the government’s construction,

these statutes might be applied to an alien who was brought

to the United States as a child and was unaware of his status,

or a person convicted of a prior crime who was given

probation and might not have known the crime was

punishable by imprisonment for a term exceeding a year. Id.

at 2197–98.

This same logic extends to the relationship between

§ 924(a)(7) and § 931(a)(1), which govern Door’s conviction

for possessing body armor. The term “knowingly” in

§ 924(a)(7) modifies the verb “violates” and its direct object,

“section 931.” Following Rehaif, “knowingly” thus applies

to all the elements listed in § 931(a)(1): “a person [who]

purchase[s], own[s], or possess[es] body armor, if that person

has been convicted of a felony that is––a crime of violence

(as defined in section 16).” The government offers no

explanation as to why the word “knowingly” in § 924(a)(7)

applies to the noun listed in § 931(a)(1) (“a felony”) but does

not apply to the phrase that qualifies it (“a crime of violence

(as defined in § 16)”). Instead, the government warns that

UNITED STATES V. DOOR 13

requiring proof of a defendant’s knowledge that he was

convicted of a crime that meets the legal definition of a crime

of violence places an impossible and unnecessary burden on

the government.

We think the government has overread Rehaif. We do not

understand Rehaif to mean that the government must prove

that the defendant knew that he had been convicted of a crime

that a court has specifically declared to be a “crime of

violence” under 18 U.S.C. § 16. That would be a nearly

impossible burden for the government, and it would severely

limit the scope of § 931(a)(1). Section 931(a)(1) does not say

“a crime of violence, declared to be such by a court”; rather,

it states “a crime of violence as defined in section 16.”

18 U.S.C. § 931(a)(1) (emphasis added; parenthesis omitted).

We understand Rehaif to mean that the government must

prove that a defendant who possessed body armor knew that

(1) he was convicted of a felony and, (2) the felony of which

he was convicted had as an element “the use, attempted use,

or threatened use of physical force.” 18 U.S.C. § 16(a). The

term “physical force” should be given its ordinary meaning,

which “in the context of a statutory definition of ‘violent

felony,’ . . . means violent force––that is, force capable of

causing physical pain or injury to another person.” Johnson

v. United States, 559 U.S. 133, 138, 140 (2010);5 see also

Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (observing that

“[t]he ordinary meaning of this term [crime of violence],

5

Johnson addressed the phrase “physical force” as used in

§ 924(e)(2)(B)(i), see 559 U.S. at 138, but the same phrase appears in

§ 16. Generally, “when Congress uses the same language in two statutes

having similar purposes . . . it is appropriate to presume that Congress

intended that text to have the same meaning in both statutes.” Smith v.

City of Jackson, 544 U.S. 228, 233 (2005).

14 UNITED STATES V. DOOR

combined with § 16’s emphasis on the use of physical force

. . . suggests a category of violent, active crimes”). If

anything, the case law in this area suggests that the lay

understanding of what constitutes a crime of violence may be

overinclusive, such that a defendant may find himself

pleasantly surprised to learn that a court has deemed his past

crime not to be a crime of violence.6

We thus conclude that Rehaif requires the government to

prove that a defendant charged with violating § 931(a) knew

he had a felony conviction and that the felony of which he

was convicted had “as an element the use, attempted use, or

threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a). We now turn to the

merits of Door’s asserted Rehaif errors, beginning with his

challenge to the sufficiency of the evidence.

B. Sufficiency of the Evidence

At the close of the government’s case, Door made a

general oral motion for a “directed verdict on all three

counts” under Federal Rule of Criminal Procedure 29.7 Door

offered no argument, and the district court denied his motion.

Door summarily renewed his Rule 29 motion on all charges

after closing argument, which the district court promptly

denied.

6

Our recent decision in United States v. Begay, 934 F.3d 1033 (9th

Cir. 2019), offers an example of perhaps a less intuitive holding in which

we determined that second-degree murder does not constitute a crime of

violence. See id. at 1042 (N.R. Smith, J., dissenting) (“How can this

be?”).

7

Not pertinent to this appeal, Door also challenged the sufficiency of

the evidence supporting his ACCA eligibility in his Rule 29 motion.

UNITED STATES V. DOOR 15

Both parties initially assumed that Door’s summary Rule

29 motion entitled him to de novo review of his sufficiency

of the evidence claim under Rehaif, and both sides briefed the

issue as such. In its brief, the government explained that it

believed de novo review was required based on our precedent

holding that a general Rule 29 motion preserves all objections

to the sufficiency of the evidence. See, e.g., United States v.

Navarro Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (“Rule 29

motions for acquittal do not need to state the grounds upon

which they are based.”). Where preserved, “[w]e review de

novo the denial of a motion for acquittal.” United States v.

Niebla-Torres, 847 F.3d 1049, 1054 (9th Cir. 2017).

Following oral argument, however, we held in United

States v. Johnson, 979 F.3d 632 (9th Cir. 2020), amending

963 F.3d 847 (9th Cir. 2020), that plain error, not sufficiency

of the evidence, is the proper standard to review an

unpreserved Rehaif error. In that case, Lamar Johnson was

convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Id. at 634. After we

affirmed his conviction, the Supreme Court decided Rehaif.

Id. Johnson subsequently filed a petition for certiorari, “in

which he argued for the first time that the government failed

to prove at trial that he knew of his status as a convicted

felon.” Id. at 635. The Supreme Court granted his petition

and, on remand, we analyzed Johnson’s Rehaif argument as

a challenge to the sufficiency of the evidence. Id. Because

Johnson had not raised his sufficiency challenge in the district

court, however, we reviewed his claim for plain error and

found no manifest injustice. Id. (citing Johnson, 963 F.3d

at 850).

Johnson then petitioned for rehearing and rehearing en

banc, arguing that because he had pled not guilty and

16 UNITED STATES V. DOOR

proceeded to a bench trial, the panel should have reviewed his

sufficiency of the evidence challenge de novo. Id.

(discussing United States v. Atkinson, 990 F.2d 501, 503 (9th

Cir. 1993) (en banc) (holding that, in a bench trial, a

defendant who had pled not guilty need not move for

acquittal to preserve an objection to the sufficiency of the

evidence)). Denying rehearing and rehearing en banc, we

filed an amended opinion. Johnson, 979 F.3d at 635–36. We

concluded that Atkinson was inapposite because “although

Johnson [] framed his argument as a challenge to the

sufficiency of the evidence, that [was] not in fact the correct

way to conceive of it.” Id. at 636. As we explained, “a

sufficiency challenge must be assessed against the elements

that the government was required to prove at the time of

trial.” Id. (citing United States v. Kim, 65 F.3d 123, 126–27

(9th Cir. 1995); United States v. Weems, 49 F.3d 528, 530–31

(9th Cir. 1995)). Johnson did not dispute that the government

had introduced sufficient evidence at trial under our pre-

Rehaif precedent; thus his Rehaif challenge was “best

understood . . . as a claim that the district court applied the

wrong legal standard in assessing his guilt––specifically, by

omitting the knowledge-of-status element now required under

Rehaif.” Id. (emphasis added). Because a district court’s

legal error during a bench trial regarding the elements of the

offense is reviewed in the same manner as an erroneous jury

instruction––plain error where the defendant failed to

object––we held that Johnson’s claim was reviewable for

plain error and reaffirmed our prior conclusion. Id. at 636,

639.

Following oral argument in this case, the government

filed a 28j letter alerting us to Johnson. We asked the

government and Door to submit supplemental briefs

addressing what impact, if any, Johnson has on the standard

UNITED STATES V. DOOR 17

of review applicable to Door’s sufficiency of the evidence

challenge. Having reviewed the parties’ submissions, we

conclude that Johnson compels the conclusion that Door’s

sufficiency claim is subject to plain-error review.

Door first argues that the government has forfeited any

plain-error argument. Relying on United States v. Murguia-

Rodriguez, 815 F.3d 566 (9th Cir. 2016), Door urges the

panel that the government’s briefing of sufficiency of the

evidence operates as a forfeiture of plain-error review. But

unlike Murguia-Rodriguez, this is not a situation in which the

government failed to argue that, under controlling law, an

error was not objected to and therefore forfeited. Id.

at 573–74. Rather, both parties assumed that the general rule

regarding preservation of sufficiency of the evidence claims

via summary Rule 29 motions extended to arguments based

on a change in the law after trial. Until Rehaif and Johnson,

there was no precedent on this precise question and, indeed,

at least two other circuits have reviewed Rehaif challenges to

the sufficiency of the evidence de novo where a general Rule

29 motion was made in the district court. See, e.g., United

States v. Staggers, 961 F.3d 745, 754 (5th Cir. 2020); United

States v. Maez, 960 F.3d 949, 959 (7th Cir. 2020). We think

the government gets the benefit of the same rule that allows

Door to bring his Rehaif claims—“an appellate court must

apply the law in effect at the time it renders its decision.”

Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969).

Although the government might have argued differently in its

original brief, we are not willing, in these circumstances, to

deem such failure a forfeiture. Cf. Murguia-Rodriguez,

815 F.3d at 574–75 (“Our rule, of course, is discretionary,

and there may well be good reason to apply plain error in a

particular case . . . .”).

18 UNITED STATES V. DOOR

Door next argues that we are not bound by Johnson

because Door had a jury trial, not a bench trial. We are not

persuaded that this distinction relieves us of our duty to

follow Johnson. Johnson advanced the precise claim that

Door asserts here: the government failed to prove at trial that

he knew of his prohibited statuses, as now required by Rehaif.

Johnson, 979 F.3d at 636. As in Johnson, Door does not

claim that the government failed to introduce “evidence

sufficient to satisfy each of the elements required for

conviction at the time of his trial.” Id. (emphasis added). We

fail to see how the difference between a jury trial and a bench

trial would require us to view these identical legal challenges

differently. Stated otherwise, if Johnson’s challenge could

not be conceived of as a sufficiency challenge, then neither

can Door’s. We thus understand Door’s sufficiency

challenge as a claim of trial error. Because Door did not

object to the trial court’s omission of the knowledge-of-status

element, we review for plain error under Rule 52(b).

Under plain-error review, we may reverse only where

there is an (1) error that is (2) plain, (3) affects substantial

rights, and (4) “seriously affects the fairness, integrity or

public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 732 (1993) (cleaned up) (quoting

United States v. Young, 470 U.S. 1, 15 (1985)). In light of

Rehaif, it is clear that the district court erred in failing to

require the government to prove Door’s knowledge of his

prohibited statuses and that error is now plain. As we did in

Johnson, we will “assume without deciding that the district

court’s error affected [Door]’s substantial rights.” 979 F.3d

at 636. Thus, we will resolve this case under the fourth prong

of plain-error review.

UNITED STATES V. DOOR 19

This prong “helps enforce one of Rule 52(b)’s core

policies, which is to reduce wasteful reversals by demanding

strenuous exertion to get relief for unpreserved error.” Id.

(citation and internal quotation marks omitted). To satisfy

the fourth prong, Door bears the burden of offering “a

plausible basis for concluding that an error-free retrial might

end more favorably.” Id. at 637 (discussing Johnson v.

United States, 520 U.S. 461, 470 (1997), wherein the

Supreme Court concluded that the failure to submit the

element of materiality to the jury did not warrant reversal

under the fourth prong of plain-error review because the

petitioner “presented no plausible argument that the false

statement under oath for which she was convicted . . . was

somehow not material to the grand jury investigation”). That

is, Door must demonstrate that a “miscarriage of justice

would otherwise result.” Id. at 636–37 (citations omitted).

No miscarriage of justice results where the “correction of an

unpreserved error would ultimately have no effect on the

judgment.” Id. at 638. We conclude that Door has not made

such a showing.

Beginning with Door’s § 922(g) conviction, Door cannot

show that our refusal to correct the district court’s error

would result in a miscarriage of justice. In reviewing for

plain error, we may examine the entire record on appeal. See

Johnson, 979 F.3d at 638; Benamor, 937 F.3d at 1189. When

Door possessed the firearms (and body armor), he had

multiple felony convictions for which he was sentenced to

prison terms ranging from 14 months to 10 years. Having

served more than a year in prison, Door cannot (and does not

attempt to) argue that a jury would find that he was unaware

of his status as a person previously convicted of an offense

punishable by more than a year in prison.

20 UNITED STATES V. DOOR

Turning to Door’s § 931(a)(1) conviction, we are likewise

convinced that Door cannot plausibly argue that he was

unaware of his status as a person previously convicted of a

felony that is a crime violence. To begin, Door and the

government entered into a stipulation that was read to the

jury, in which Door conceded that he had been convicted of

both predicate crimes in language identical to the statutes.

The stipulation provided:

Prior to November 9, 2011, Kenneth Door, the

defendant herein, had been convicted of a

felony crime punishable by a term of

imprisonment exceeding one year. That is a

crime of violence, as defined by law, and

therefore was a convicted felon and a person

convicted of a felony that is a crime of

violence at the time of the events that are the

subject of this prosecution.

Thus, at the very least, that stipulation admitted that Door

knew of the fact of his convictions at trial.

The more difficult question is whether the stipulation also

conceded that Door knew that at least one of his prior felonies

was punishable for a term exceeding a year and that one was

a crime of violence as defined in § 16 when he possessed the

firearms and body armor in 2011. Although the stipulation

did not explicitly state that Door knew of his prohibited

statuses, the stipulation recited that Door had been convicted

of a felony “punishable by a term of imprisonment exceeding

one year” and further specified that the felony was “a crime

of violence, as defined by law.” It is the shortest of steps for

a juror to conclude that, when Door possessed the firearms

and body armor, he knew of the crimes for which he had

UNITED STATES V. DOOR 21

previously been convicted. Being convicted of a felony is

generally a major life event; as the Second Circuit has aptly

observed, “given the rights to appointed counsel, effective

assistance of counsel, and due process, it is highly improbable

that a person could be convicted of a felony without being

aware that his possible sentence would exceed one year’s

imprisonment.” United States v. Miller, 954 F.3d 551, 559

(2d Cir. 2020) (footnotes omitted); see also Staggers,

961 F.3d at 757 (reasoning that, “absent any evidence

suggesting ignorance, a jury applying the beyond-a-

reasonable-doubt standard could infer that a defendant knew

that he or she was a convicted felon from the mere existence

of a felony conviction” as evidenced by the defendant’s

stipulation); United States v. Ward, 957 F.3d 691, 695–96

(6th Cir. 2020) (holding that a rational juror could have

inferred the defendant knew of his prohibited status based on

his stipulation and his lawyer’s emphasis on the stipulation,

and observing that “[a]lthough the stipulation of a prior

felony does not automatically establish knowledge of felony

status, it is strongly suggestive of it” (citation and internal

quotation marks omitted)).

The stipulation was, no doubt, a strategic concession by

Door because it precluded the government from presenting

evidence of Door’s status as a violent felon and laying out his

multiple prior convictions before the jury. See Old Chief v.

United States, 519 U.S. 172, 190–92 (1997). Had Door

refused to stipulate to his convictions, the government likely

would have—subject, of course, to the limitations imposed by

the Federal Rules of Evidence—introduced proof of his prior

convictions to establish the status element. See, e.g., United

States v. Weiland, 420 F.3d 1062, 1077–78 (9th Cir. 2005)

(analyzing the admissibility of records of convictions in a

§ 922(g) prosecution under Federal Rule of Evidence 403 in

22 UNITED STATES V. DOOR

the absence of the defendant’s stipulation to his criminal

status).

Moreover, this case presents a starkly different situation

than the hypothetical that the Court set out in Rehaif. In

Rehaif, the majority posited that a convicted felon might lack

knowledge that he was convicted of a crime punishable by

imprisonment for a term exceeding one year if he was

“convicted of a prior crime but sentenced only to probation.”

139 S. Ct. at 2198. In the Court’s hypothetical, the fact that

a defendant charged with a felony received probation might

have obscured the felon’s understanding of the length of the

sentence he had faced. By contrast, Door’s stipulation

admitted that he knew of his convictions and the defining

features of those crimes. There is nothing tricky or hidden in

the stipulation and therefore no ambiguity in what Door

stipulated to. As such, we think the stipulation tends to weigh

against reversal.

But we do not rest our decision on Door’s stipulation

alone. As discussed, our review is not limited to the record

adduced at trial, and Door had multiple felony convictions

when he possessed the body armor. One of those convictions

was for felony harassment under Wash. Rev. Code.

§§ 9A.46.020(1)(a)(i) and (2)(b)8 for “threatening to kill” a

person. We previously held in a published opinion in Door’s

prior appeal that a conviction under Wash. Rev. Code

8

The sections of the Washington harassment statute that applied to

Door’s 1997 conviction provided (1) “[a] person is guilty of harassment

if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o

cause bodily injury in the future to the person threatened or any other

person”; and (2) a “person is guilty of a class C felony if . . . the person

harasses another person . . . by threatening to kill the person threatened or

any other person.” Wash. Rev. Code. § 9A.46.020.

UNITED STATES V. DOOR 23

§ 9A.46.020(2)(b) qualifies as a crime of violence because a

knowing threat to kill a person “necessarily entails the

threatened use of violent physical force against another

person.” Door, 917 F.3d at 1152. Door tries to downplay the

significance of this conviction by arguing that the record

contains no plea colloquy establishing that he understood the

nature of felony harassment. But it is Door’s burden to show

how the plain error has seriously affected the fairness,

integrity or public reputation of his judicial proceedings. See

Johnson, 520 U.S. at 470. Door has not carried that burden.

Nowhere does he offer a plausible argument that he lacked

the requisite knowledge of his status as a violent felon or that

he would have proceeded differently at trial had the

government been required to prove his knowledge of his

prohibited statuses. Indeed, we are quite confident that Door

would not have foregone the benefits of his stipulation if

Rehaif had been decided prior to his trial. The stipulation

shielded Door from having the government splay the details

of his prior felonies before the jury; Door has given us no

reason to think that it would be a prudent strategy to waive

his rights under Old Chief and withdraw his stipulation. See

Staggers, 961 F.3d at 756 (concluding that if Rehaif were in

effect at the defendant’s trial, he “would have stipulated to

both the felon-status element and the knowledge-of-felon-

status element to keep the jury ignorant of the inculpatory

details otherwise required to prove knowledge of felon

status”). In short, Door fails to persuade us that a correction

of the Rehaif error would ultimately affect the outcome. See,

e.g., United States v. Cotton, 535 U.S. 625, 633 (2002)

(“Surely the grand jury, having found that the conspiracy

existed, would have also found that the conspiracy involved

at least 50 grams of cocaine base.”). We therefore conclude

that the district court’s error did not seriously affect the

fairness, integrity or public reputation of judicial proceedings.

24 UNITED STATES V. DOOR

C. Indictment and Jury Instructions

Door argues that his indictment and jury instructions were

also flawed because neither stated that Door’s knowledge of

his prohibited statuses was an element of the crimes. Because

Door did not raise these challenges in the district court, we

review them for plain error. See Olano, 507 U.S. at 732.

1. Indictment

With respect to the § 922(g) charge, Count One of the

indictment alleged that Door, “having been convicted of a

crime punishable by imprisonment for a term exceeding one

year . . . did knowingly possess firearms.” Count One also

listed eleven different convictions with their docket numbers.

Similarly, with respect to the § 931(a) charge, Count Two

alleged that Door, “having been convicted of a felony crime

of violence . . . did knowingly possess body armor” and listed

six different convictions with their docket numbers.

The government claims that (1) Door has waived his

challenge to the indictment; and (2) the indictment is not

plainly insufficient because it tracked the statutory language

of § 922(g)(1) and § 931(a)(1). Both arguments lack merit.

First, a defendant may challenge an indictment after trial; our

review is just limited to plain error. See United States v.

Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002); see

also United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020).

Second, although the indictment uses the word “knowingly”

to describe the charged offenses, it only uses the word to

modify “possess firearms” and “possess body armor,”

respectively. In light of Rehaif, because the indictment only

charged Door with knowledge of possession, not knowledge

of his status, the indictment clearly failed to allege an element

UNITED STATES V. DOOR 25

of each offense. This was plain error. See Henderson v.

United States, 568 U.S. 266, 274 (2013) (explaining that an

error can be “plain” under Federal Rule of Criminal

Procedure 52(b) if it is plain at “the time of appellate

consideration” (citation and internal quotation marks

omitted)). But, for the reasons discussed, Door cannot show

that this error affected the fairness, integrity or public

reputation of the trial.

2. Jury Instructions

It is undisputed that “the absence of an instruction

requiring the jury to find that Defendant knew he was a felon

was clear error under Rehaif.” Benamor, 937 F.3d at 1188.

However, as discussed, Door cannot satisfy the final prong of

the plain-error test.

III. OBSTRUCTION OF JUSTICE

We next consider whether the district court erred in

applying the obstruction of justice enhancement. We review

the proper interpretation of the Guidelines de novo, the

district court’s factual findings made at sentencing for clear

error, and the application of the Guidelines to the facts of a

case for abuse of discretion. United States v. Gasca-Ruiz,

852 F.3d 1167, 1170 (9th Cir. 2017).

As a preliminary matter, our review is not, as the

government contends, limited to plain error. At sentencing,

Door objected to the obstruction of justice enhancement on

the grounds that the record was insufficient to show he made

any threats; Door now argues that the district court failed to

make a finding as to his purpose in making the alleged

threats. Door’s basic claim, however, remains the same: the

26 UNITED STATES V. DOOR

district court’s findings were insufficient to support the

obstruction of justice enhancement. See United States v.

Guzman-Padilla, 573 F.3d 865, 877 n.1 (9th Cir. 2009)

(holding that claims, not arguments, are waived or forfeited).9

An enhancement for obstructing or impeding the

administration of justice is warranted if “the defendant

willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense

of conviction.” U.S.S.G. § 3C1.1. Door argues that his

alleged threats to kill his federal case agent can only support

an obstruction of justice enhancement if they were intended

to prevent future testimony or cooperation, not for the

purpose of retaliation.10 Even assuming retaliatory motive

alone is insufficient to warrant an enhancement under

U.S.S.G. § 3C1.1, the district court did not commit clear

error. Although Door communicated his threats after the

agent testified at the suppression hearing, he still made the

threats prior to the agent’s testimony at trial. These pre-trial

threats could reasonably be construed as an attempt to

9

Nor has Door waived his right to appeal the application of this

enhancement because he failed to raise it in his second appeal. We did not

limit the scope of the remand when we remanded Door’s case for a second

re-sentencing. See Door, 917 F.3d at 1155; Door, 756 F. App’x

at 758–59. The district court was thus “empowered to address all

sentencing issues following remand.” United States v. Pimentel, 34 F.3d

799, 800 (9th Cir. 1994).

10

But see United States v. Rubio, 317 F.3d 1240, 1244–45 (11th Cir.

2003) (holding retaliatory purpose sufficient because Application Note

4(i) to U.S.S.G. § 3C1.1 authorizes an enhancement based upon any

conduct prohibited by the obstruction of justice provisions of Title 18,

including 18 U.S.C. § 1513(b), which prohibits a person from inflicting

bodily injury on a witness with the intent to retaliate).

UNITED STATES V. DOOR 27

obstruct justice on the theory that Door wanted to prevent the

agent from testifying at his trial.

IV. SENTENCE

Finally, we consider Door’s claim that his sentence was

both procedurally and substantively unreasonable. The court

reviews the district court’s sentencing decision for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007).

“Procedural errors include, but are not limited to,

incorrectly calculating the Guidelines range, treating the

Guidelines as mandatory, failing to properly consider the

§ 3553(a) factors, using clearly erroneous facts when

calculating the Guidelines range or determining the sentence,

and failing to provide an adequate explanation for the

sentence imposed.” United States v. Armstead, 552 F.3d 769,

776 (9th Cir. 2008). Door argues that his sentence is

procedurally unreasonable because the district court gave the

Guidelines no weight and therefore failed to properly

consider the § 3553(a) factors. In support of this proposition,

Door points to the district court’s expressions of frustration

with the categorical approach and statement that the

“guidelines are a guide, unless they are not.”

We disagree. It is well settled that the district court “may

not presume that the Guidelines range is reasonable . . . . Nor

should the Guidelines factor be given more or less weight

than any other.” Carty, 520 F.3d at 991. Rather, the

sentencing court is “free to conclude that the applicable

Guidelines range gives too much or too little weight to one or

more factors, either as applied in a particular case or as a

matter of policy.” United States v. Christensen, 732 F.3d

1094, 1101 (9th Cir. 2013). Contrary to Door’s

28 UNITED STATES V. DOOR

characterization, the district court’s remarks indicate that it

looked to the Guidelines and determined that the range did

not adequately account for the seriousness of Door’s criminal

history and his various threats to witnesses. This was an

experienced judge, who was very familiar with Door’s case.

Moreover, the district court explained that its non-Guidelines

sentence was based on “[r]espect for the law, deterrence,

[and] protection for the community,” which are among the

additional sentencing factors specifically listed in § 3553(a).

See 18 U.S.C. § 3553(a)(2)(A)–(C). The district court did not

commit procedural error in concluding that the Guidelines did

not adequately reflect the nature and circumstances of Door’s

offense and the danger he posed to the community.

Door’s sentence is also substantively reasonable. In

reviewing the reasonableness of a sentence, we consider the

totality of the circumstances. Carty, 520 F.3d at 993. The

reviewing court must give “due deference to the district

court’s decision that the § 3553(a) factors, on the whole,

justify the extent of the variance. ” Gall, 552 U.S. at 51.

Although a sentence outside the Guidelines does not carry a

presumption of unreasonableness, “the greater the variance,

the more persuasive the justification will likely be because

other values reflected in § 3553(a) . . . may figure more

heavily in the balance.” Carty, 520 F.3d at 992. This does

not, however, mean that the district court must “tick off each

of the § 3553(a) factors to show it has considered them.” Id.

It is undisputed that in imposing a 276-month sentence,

the district court deviated significantly from the guideline

range of 140–175 months. The district court explained that

it had, “on two prior occasions, said that I consider Mr. Door

to perhaps be the most dangerous defendant I have had in

18 or 19 years. . . . Mr. Door is, was, and will be in my mind

UNITED STATES V. DOOR 29

an extremely dangerous person. He did everything and then

more to justify his sentence.” The record fully supports the

district court’s determination that Door was an extremely

dangerous person who had shown an unwillingness to change.

There is no basis upon which to find Door’s sentence

substantively unreasonable.

V. CONCLUSION

Although, in light of Rehaif, the district court committed

plain error by failing to require the government to prove

Door’s knowledge of his prohibited statuses and omitting the

knowledge element from the indictment and jury instructions,

Door cannot show that these errors affected the fairness,

integrity, or public reputation of the judicial proceedings.

With respect to Door’s sentence, the district court did not

clearly err in finding that the pre-trial threats Door made

could reasonably be construed as an attempt to obstruct

justice. Nor is there a basis upon which to find Door’s

sentence either procedurally or substantively unreasonable.

We therefore affirm the convictions and sentence.

AFFIRMED.