United States v. Edward Malone Lawson

USCA11 Case: 19-13284 Date Filed: 06/28/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13284

Non-Argument Calendar

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D.C. Docket No. 2:18-cr-00408-ACA-TMP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD MALONE LAWSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(June 28, 2021)

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Before MARTIN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Edward Malone Lawson appeals his conviction and sentence after

pleading guilty to being a felon in possession of a firearm. On appeal, Defendant

argues for the first time that his conviction must be reversed because, during the

plea colloquy, the district court failed to explain, in accordance with Rehaif v.

United States, 139 S. Ct. 2191 (2019), that an element of the offense was

Defendant’s knowledge of his status as a felon. Defendant also argues that his

sentence was substantively unreasonable. The Government responds that the

Rehaif error caused no prejudice and that a sentence-appeal waiver in Defendant’s

plea agreement bars his substantive-reasonableness challenge. We agree with the

Government. Accordingly, we affirm Defendant’s conviction and dismiss the

appeal from his sentence.

I. BACKGROUND

A federal grand jury indicted Defendant on one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment

alleged that Defendant had knowingly possessed a Hi-Point .45 caliber pistol in

February 2018, after having sustained several felony convictions between 1990 and

1999, including convictions for sodomy and rape, and several convictions for

unlawful distribution of a controlled substance.

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Defendant pled guilty pursuant to a written plea agreement, which specified

that Defendant was subject to a 15-year minimum sentence under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). According to the factual

proffer, Defendant admitted that law enforcement had found a pistol in his

bedroom while executing a search warrant on his residence, that he had admitted to

owning the firearm for personal protection after waiving his Miranda rights, and

that, “[a]t the time of the incident, [Defendant] had prior felony convictions for

Sodomy, First Degree, Rape, First Degree, and Unlawful Distribution of a

Controlled Substance (x3).” The plea agreement also included a sentence-appeal

waiver, under which Defendant agreed to waive the right to appeal his sentence

unless (1) the court imposed a sentence exceeding the statutory maximum, (2) the

court imposed a sentence exceeding the advisory guideline range, as determined by

the court, or (3) Defendant asserted a claim of ineffective assistance of counsel.

At the change-of-plea hearing, Defendant confirmed that he had enough time

to review the indictment and plea agreement with counsel. After the court

described in detail the trial rights he would be giving up by pleading guilty,

Defendant confirmed his understanding. As to the charge against him, the court

informed Defendant that the Government would be required to prove that he “had

been convicted of a felony” before he “knowingly possessed a firearm,” and that

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he would be subject to a 15-year mandatory minimum sentence if the court

determined that he was an armed career criminal.

When the court asked Defendant whether he understood that the plea

agreement contained a sentence-appeal waiver, Defendant responded that he

understood he was giving up his right to appeal. The Government and defense

counsel then explained in greater detail that Defendant was waiving his right to

appeal except under limited circumstances, namely, if he received a sentence

beyond the statutory maximum or guideline maximum or if he claimed ineffective

assistance of counsel. The court asked again whether Defendant understood the

waiver, and he confirmed that he did.

When the court inquired about the factual basis in the plea agreement,

Defendant agreed that the facts alleged were substantially correct and that he “had

a gun under the bed.” Although Defendant responded “No” when the court asked

if he knew that he was “violating the law when [he] did that,” Defense counsel

explained that the Government did not need to prove that he knew he was violating

the law, only that he knew he possessed the firearm. Defendant confirmed that he

was pleading guilty because he was guilty, and the court accepted his plea, finding

that it was knowing and voluntary.

According to the presentence investigation report (“PSR”), Defendant

qualified as an armed career criminal because he had sustained convictions in 1999

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for five counts of unlawful distribution of a controlled substance, which he had

committed on separate occasions. The PSR noted that Defendant also had a 1990

conviction for first-degree sodomy and a 1991 conviction for first-degree rape, but

that they were not counted as predicate offenses for the ACCA enhancement

because Shepard documents could not be located. For the sodomy conviction,

Defendant received a 10-year suspended prison sentence but ultimately served 10

months in jail after violating probation. The rape conviction resulted in a 15-year

prison sentence, but Defendant served only 10 months before being released on

probation. As for the five drug convictions, Defendant received concurrent 20-

year prison terms beginning at different points in 1999. Defendant served nearly

three years in prison for those convictions before he was released on probation in

2002.

Defendant objected that being sentenced as an armed career criminal was

“unconscionable,” “grossly unreasonable,” and “inappropriate,” given that his

convictions were too old to generate criminal-history points.1 But Defendant

admitted that the objection was contrary to current law, and that he merely sought

to preserve the issue in case the legal landscape later changed. The court overruled

the objection, noting that Defendant clearly had had at least three qualifying

1

Under U.S.S.G. § 4A1.2(e), certain sentences that were not imposed within 10–15 years of the

defendant’s commencement of the instant offense are not counted.

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predicate offenses for an ACCA enhancement. Defendant confirmed that he had

no other objections to the PSR. But he argued in mitigation that he kept the gun

for protection because a prior home invasion had resulted in the theft of his phone

and wheelchair.

After the court imposed sentence and entered judgment, Defendant moved

for a new trial and reconsideration of sentencing under Federal Rule of Criminal

Procedure 33(a). Defendant reiterated his objections to the court sentencing him as

an armed career criminal and argued that his sentence was substantively

unreasonable in light of the 18 U.S.C. § 3553(a) factors. Concluding that it lacked

authority to grant the relief requested, the court denied Defendant’s motion.

II. DISCUSSION

A. Whether the District Court Plainly Erred in Convicting

Defendant Under Rehaif

When Defendant entered his guilty plea, settled precedent in this Circuit

provided that an 18 U.S.C § 922(g) conviction for being a felon in possession of a

firearm did not require proof that the defendant knew he was a convicted felon.

United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997), abrogated as

recognized in United States v. Reed, 941 F.3d 1018, 1020–21 (11th Cir. 2019).

After Defendant was convicted, however, the Supreme Court decided Rehaif v.

United States, which held that, “in a prosecution under 18 U.S.C. § 922(g) and

§ 924(a)(2), the Government must prove both that the defendant knew he

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

persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct.

2191, 2200 (2019). The relevant status element for a felon-in-possession-of-a-

firearm charge requires proof that the defendant knew he was a person convicted of

“a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C.

§ 922(g)(1); see Rehaif, 139 S. Ct. at 2198.

On appeal, Defendant argues for the first time that the district court violated

Rehaif by failing to inform him during the plea colloquy that an element of his

offense was knowledge of his status as a felon. According to Defendant, we must

reverse his conviction because this Rehaif error resulted in a plea that was not

knowing, intelligent, and voluntary.

We review Defendant’s argument for plain error because he did not

challenge the constitutionality of his plea below. United States v. Moriarty, 429

F.3d 1012, 1018 (11th Cir. 2005). To establish plain error, a defendant must show

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

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

of judicial proceedings.” Id. at 1019 (alteration accepted) (quotation marks

omitted). Because the Government concedes that the district court’s error in

accepting Defendant’s plea was plain under Rehaif, we turn to the third prong of

plain-error review.

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To establish that a Rehaif error in a plea colloquy affected a defendant’s

substantial rights, a defendant must “show[] that, if the District Court had correctly

advised him of the mens rea element of the offense, there is a reasonable

probability that he would not have pled guilty.” Greer v. United States, -- S. Ct. --,

slip op. at 4, No. 19-8709, 2021 WL 2405146 (U.S. June 14, 2021) (quotation

marks omitted). This is a difficult burden for a felon to carry because “a felon . . .

ordinarily knows he is a felon,” and juries “will usually find that a

defendant knew he was a felon based on the fact that he was a felon.” Id. at --, slip

op. at 4–5 (emphasis in original). Because a prior felony conviction constitutes

“substantial evidence” that a defendant knew he was a felon, “a Rehaif error is not

a basis for plain-error relief unless the defendant first makes a sufficient argument

or representation on appeal that he would have presented evidence at trial that he

did not in fact know he was a felon.” Id. at --, --, slip op. at 5, 10.

Here, Defendant has not carried his burden of establishing prejudice under

the third prong of plain-error review. Defendant has not even asserted that he

would have gone to trial but for the Rehaif error, much less identified evidence

upon which he could have relied to suggest that he did not know he was a felon

when he possessed the gun. See id. at --, slip op. at 6 (holding that the defendants

could not show prejudice because they had not “argued or made a representation

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that they would have presented evidence at trial that they did not in fact know they

were felons when they possessed firearms”).

Moreover, our review of the record reveals overwhelming evidence that

Defendant knew of his felon status. According to the unobjected-to portions of his

PSR, Defendant had received prison sentences of 10 years for sodomy, 15 years for

rape, and 20 years for each of five drug convictions. Given Defendant’s repeated

convictions for felony offenses, the length of his sentences, and the fact that he

actually served nearly three years in prison for his drug convictions, Defendant

could not have credibly argued that he did not know he had a prior conviction for a

crime punishable by imprisonment for a term exceeding one year when he

possessed the firearm. See United States v. Bates, 960 F.3d 1278, 1296 (11th Cir.

2020) (no prejudice from a Rehaif error in a guilty plea because the defendant’s

seven prior felony convictions provided “overwhelming evidence” as to the

knowledge-of-status element); United States v. McLellan, 958 F.3d 1110, 1119–20

(11th Cir. 2020) (no prejudice from a Rehaif error in a plea colloquy because the

defendant had served a total of about ten years in prison, including a term of more

than seven years after violating probation, making it “inconceivable” that he did

not know he was a felon); United States v. Innocent, 977 F.3d 1077, 1082–83 (11th

Cir. 2020) (no prejudice from a Rehaif error in an indictment because, although the

defendant had “never served more than a year in prison for any of his convictions,”

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he had four prior felonies, and “someone who has been convicted of felonies

repeatedly is especially likely to know he is a felon”). Accordingly, the Rehaif

error did not affect his substantial rights.

As a final matter, we note that Defendant’s only argument on appeal is

irrelevant to whether he would have pled guilty but for the Rehaif error.

Specifically, he argues that the plea colloquy clearly established that he did not

know he was violating the law because, when the court asked him if he knew that

he was “violating the law” when he possessed a firearm, he responded, “No.”

Whether he knew he was “violating the law,” however, has no bearing on his guilt.

Rehaif requires only that he knew that (1) he possessed a firearm and (2) he had the

status of a person prohibited from possessing a firearm. Rehaif, 139 S. Ct. at 2200.

Knowledge that one is “violating the law” is not an element of the offense. See

United States v. Benton, 988 F.3d 1231, 1235–36, 1238–39 (10th Cir. 2021)

(rejecting an argument that “Rehaif imposed an additional burden on the

government . . . to prove [a defendant] knew he was prohibited from possessing a

firearm as a result of his status”).

Because Defendant has not carried his burden of establishing prejudice

under the third prong of plain-error review, he has not shown that the court’s

Rehaif error during the plea colloquy warrants reversal. Accordingly, we affirm

Defendant’s conviction.

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B. Whether Defendant May Challenge His Sentence on Substantive-

Reasonableness Grounds Despite His Sentence-Appeal Waiver

On appeal, Defendant challenges his sentence as substantively unreasonable

in light of the 18 U.S.C. § 3553(a) factors. He contends that it was unfair to

sentence him as an armed career criminal based on convictions that were too old to

generate criminal-history points, and that his sentence was far greater than

necessary, given that he is disabled and confined to a wheelchair, and he possessed

a gun solely for personal protection. The Government, however, argues that we

should dismiss Defendant’s sentence challenge because his plea agreement

contained a valid and enforceable sentence-appeal waiver.

We review de novo the validity of a sentence-appeal waiver. United States

v. DiFalco, 837 F.3d 1207, 1215 (11th Cir. 2016). To enforce a sentence-appeal

waiver, the Government must establish that the waiver was knowing and voluntary

by showing “that either (1) the district court specifically questioned the defendant

concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is

manifestly clear from the record that the defendant otherwise understood the full

significance of the waiver.” United States v. Bushert, 997 F.2d 1343, 1350–51

(11th Cir. 1993).

Here, the Government has carried its burden of showing that the sentence-

appeal waiver is valid and enforceable. At the sentencing hearing, both the

Government and defense counsel explained that Defendant was waiving his right

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to appeal his sentence unless (1) the court imposed a sentence exceeding the

statutory maximum, (2) the court imposed a sentence exceeding the advisory

guideline range, or (3) Defendant claimed ineffective assistance of counsel. When

the court asked if Defendant understood the waiver, Defendant confirmed his

understanding.

On appeal, Defendant does not dispute that he knowingly and voluntarily

waived his right to appeal his sentence. Nor does he claim that his sentence

challenge falls within one of the plea agreement’s three exceptions to the sentence-

appeal waiver.2 Accordingly, we dismiss Defendant’s challenge to his sentence.

III. CONCLUSION

Because the Rehaif error during the change-of-plea hearing did not affect

Defendant’s substantial rights, and the sentence-appeal waiver in Defendant’s plea

agreement is valid and enforceable, we affirm Defendant’s conviction and dismiss

the appeal from his sentence.

AFFIRMED IN PART, DISMISSED IN PART.

2

Defendant asserts in conclusory fashion that the district court violated his Fifth and Eighth

Amendment rights by sentencing him under the ACCA. Even if we could fairly construe this as

a contention falling within the sentence-appeal waiver’s exception for an appeal from a sentence

exceeding the statutory maximum, Defendant has abandoned the issue by failing to develop a

Fifth or Eighth Amendment argument with citations to supporting authority. See United States v.

Tejas, 868 F.3d 1242, 1246 n.3 (11th Cir. 2017) (holding that the defendant had abandoned an

issue where he made “a few conclusory assertions” that the district court erred but “d[id] not cite

any relevant authority or develop any arguments in support of that contention”).

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