Petition for Writ of Certiorari — Frederick Lee Robinson, Jr., Petitioner v. United States

No. 17-_________

IN THE SUPREME COURT OF THE UNITED STATES

___________

FREDERICK LEE ROBINSON, JR.

ALSO KNOWN AS FREDRICK LEE ROBINSON, JR. ,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

___________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

J ASON D. H AWKINS

Federal Public Defender

N ORTHERN D ISTRICT OF T EXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL

PUBLIC DEFENDER

819 TAYLOR ST ., RM 9 A 10

F ORT WORTH , TX 76102

(817) 978-2753

QUESTION PRESENTED

I.

Whether the Texas offense of aggravated assault is equivalent to the

“generic” form of that offense?

II.

Recently this Court and individual Justices have increasingly explained

that Congress’s power under the Commerce Clause to criminalize conduct

otherwise falling under the states’ traditional police power is subject to

limits–and that those limits have teeth.

Q: In light of Bond v. United States, 134 S.Ct. 2077 (2014). Nat’l Fed’n of

Indep. Bus. v. Sebelius,567 U.S. 519 (2012) (NFIB) and the dissent from

denial of certiorari in Alderman v. United States,131 S. Ct. 700, 701

(Thomas and Scalia, JJ., dissenting from denial of certiorari), citing

United States v. Lopez, 514 U.S. 549, 558–559 (1995), does the federal

Unlawful Felon in Possession of a Firearm statute (18 U.S.C. § 922(g)(1)),

as construed (or misconstrued) by the circuit courts, exceed Congress’s

authority to regulate under the Commerce Clause?

III.

Does the Fifth Circuit’s interpretation of 18 U.S.C. § 922(g),(which is that

the statute requires only that the government prove that the defendant

possessed a firearm that had been shipped in the unknown past by

unknown individual’s unrelated to the defendant or his possession of the

firearm), contradict the plain words of the statute which require that the

defendant “ship or transport in interstate commerce, or possess in or

affecting commerce?”

IV.

Did the Fifth Circuit err in reading the statutory scheme which requires

a knowing violation of 18 U.S.C. § 922(g) for there to be an offense, as

requiring only a knowing possession of a firearm, in contradiction to the

plain language of the statute, the legislative history of the statute and

this Court’s holdings in Bryan v. United States, 524 U.S. 184, 193 (1998),

Flores-Figueroa v. United States, 556 U.S. 646 (2009), Staples v. United

States, 511 U.S. 600, 618-19 (1994), McFadden v. United States, 135 S.Ct.

2298 (2015), United States v. X-Citement Video, 513 U.S. 64, 72 (1994);

Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v. United

States, 342 U.S. 246, 273 (1952), which hold that where the mens rea is

“knowingly,” the government must prove the defendant had knowledge

of the facts that constitute the offense?

ii

PARTIES

Frederick Lee Robinson, Jr. also known as Fredrick Lee Robinson, Jr. is the

Petitioner; he was the defendant-appellant below.

The United States of America is the Respondent; it was the plaintiff-appellee

below.

iii

TABLE OF CONTENTS

Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index to Appendices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory Provisions Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reasons for Granting the Writ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The courts are divided on the generic definition of “aggravated

assault,” and, in particular, whether the Texas offense falls within

this generic definition. That division of authority implicates an

important and recurring issue in cases involving the categorical

approach: whether sentencing courts should tolerate “minor

differences” between the generic definition of an offense and the

prior statute of conviction, and, if so, how to determine what kinds

of differences are minor.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II.

This Court should use this case to answer the reoccurring,

important question whether, when enacting the Unlawful Felon

in Possession of a Firearm statute (18 U.S.C. § 922(g)(1), Congress

intruded into an area traditionally left to the states’ exercise of the

police power and exceeded its authority under the Commerce

Clause; whether the courts below have contradicted the plain

words of the statute, legislative history, and this Court’s holdings

in allowing for convictions that do not comport with the statute’s

requirements that the possession of the firearm be in or affection

interstate commerce or that there be a knowing violation of the

statute.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III.

Certiorari should be granted to correct the Fifth Circuit’s

interpretation of 18 U.S.C. § 922(g),which is that the statute

requires only that the government prove that the defendant

possessed a firearm that had been shipped in the unknown past by

unknown individual’s unrelated to the defendant or his possession

of the firearm, and which contradicts the plain words of the statute

which require that the defendant “ship or transport in interstate

commerce, or possess in or affecting commerce.”. . . . . . . . . . . . . . . . . 17

iv

IV.

Certiorari should be granted to correct the Fifth Circuit’s error in

reading the statutory scheme as requiring only a knowing

possession of a firearm, in contradiction to the plain language of

the statute,which requires a knowing violation of 18 U.S.C. §

922(g) for there to be an offense, the legislative history of the

statute ,and this Court’s holdings in Bryan v. United States, 524

U.S. 184, 193 (1998), Flores-Figueroa v. United States, 556 U.S.

646 (2009), Staples v. United States, 511 U.S. 600, 618-19 (1994),

McFadden v. United States, 135 S.Ct. 2298 (2015), United States

v. X-Citement Video, 513 U.S. 64, 72 (1994); Liparota v. United

States, 471 U.S. 419, 423 (1985); Morissette v. United States, 342

U.S. 246, 273 (1952), all of which hold that if the mens rea is

“knowingly,” the government must prove the defendant had

knowledge of the facts that constitute the offense?. . . . . . . . . . . . . . . 19

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

v

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court

for the Northern District of Texas

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Alderman v. United States, 131 S. Ct. 700 (2011). . . . . . . . . . . . . . . . . . . . . 10, 11, 12

Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . 9

Bond v. United States, 134 S. Ct. 2077 (2014). . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 15

Braxton v. United States, 500 U.S. 344 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bryan v. United States, 524 U.S. 184 (1998). . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

District of Columbia v. Heller, 540 U.S. 570 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . 21

Flores-Figueroa v. United States, 556 U.S. 646 (2009). . . . . . . . . . . . 4, 19, 20, 21, 24

Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1 (1824). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Jones v. United States, 529 U.S. 848 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Liparota v. United States, 471 U.S. 419 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

McFadden v. United States, 135 S. Ct. 2298 (2015). . . . . . . . . . . . . 19, 21, 22, 23, 24

Morissette v. United States, 342 U.S. 246 (1952). . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

National Federation of Independent Business v. Sebelius,

567 U.S. 519, 132 S. Ct. 2566 (2012).. . . . . . . . . . . . . . . . . 3, 10, 11, 12, 13, 14, 15

Scarborough v. United States, 431 U.S. 563 (1977).. . . . . . . . . . . . . . . . . . . . . . 12, 15

Staples v. United States, 511 U.S. 600 (1994). . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Taylor v. United States, 495 U.S. 575 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016). . . . . . . . . . . . . . . 6, 7

United States v. Chapman, 866 F.3d 129 (3d Cir., 2017). . . . . . . . . . . . . . . . . . . . . . 9

United States v. Cooper, 739 F.3d 873 (6th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . 21, 24

United States v. Darby, 312 U.S. 100 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009). . . . . . . . . . . 6, 7, 8

United States v. Fields, 863 F.3d 1012 (8th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Freed, 401 U.S. 601 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015). . . . . . . . . . . . . . 6, 7

United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007). . . . . . . . . . . . . 3, 6, 7

United States v. Hill, 832 F.3d 135 (2d Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Lopez, 514 U.S. 549 (1995). . . . . . . . . . . . . . . . . . . . . . 10, 11, 12, 18

United States v. McFalls, 592 F.3d 707 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Morrison, 529 U.S. 598 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . 10, 18

United States v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007). . . . . . . . . . . . . 5, 6, 7

United States v. Rice, 813 F.3d 704 (8th Cir. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017). . . . . . . . . . . . . . . . . . . . . 8

United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004). . . . . . . . . . . . . . . . . . 8

United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006). . . . . . . . . . . . . . 8

United States v. Waters, 823 F.3d 1062 (7th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . 9

United States v. X-Citement Video, 513 U.S. 64 (1994). . . . . . . . . . . . . . . . . . . . 19, 24

Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wickard v. Filburn, 317 U.S. 111 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

FEDERAL STATUTES

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17-21, 23, 24

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 10, 11, 14

18 U.S.C. § 924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

18 U.S.C. § 924(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

18 U.S.C. § 924(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 924(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

21 U.S.C. § 802(32)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 24

21 U.S.C. § 841(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

21 U.S.C. § 841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

viii

28 U.S.C. § 994(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FEDERAL RULES

Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISCELLANEOUS

2 Wayne R. Lafave, Substantive Criminal Law, § 16.2(d). . . . . . . . . . . . . . . . . . . . . 6

Black's Law Dictionary 162 (8th ed. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bond v. United States, 12-158, Petition for Certiorari (August 1, 2012),

2010 WL 1506717.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S. Code

Cong. and Ad.News 1327, 1351-52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

U.S. Sentencing Commission, Report to the Congress: Career Offender Sentencing

Enhancements 54 (August 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

UNITED STATES CONSTITUTION

U.S. Const. art. I, § 8, cl. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 11, 18

UNITED STATES SENTENCING GUIDELINES

USSG § 2K2.1(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

USSG § 2L1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

USSG § 2L1.2(1)(B)(iii)(2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

USSG § 4B1.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

USSG § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

USSG § 4B1.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ix

PETITION FOR A WRIT OF CERTIORARI

Petitioner Frederick Lee Robinson, Jr. also known as Fredrick Lee Robinson, Jr.

respectfully petitions for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth

Circuit is captioned as United States v. Frederick Lee Robinson, Jr. also known as

Fredrick Lee Robinson, Jr., No. 17-10842, and is provided in the Appendix to the

Petition. [Appx. A]. The district court entered judgment on July 19, 2017, which

judgment is attached as an Appendix. [Appx. B].

JURISDICTIONAL STATEMENT

The instant Petition is filed within 90 days of an opinion affirming the judgment,

which was entered on March 6, 2018. See SUP. CT. R. 13.1. This Court’s jurisdiction to

grant certiorari is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, RULES, AND STATUTES INVOLVED

Article I, Section 8 of the U.S. Constitution provides in part:

The Congress shall have power... [t]o regulate commerce with foreign

nations, and among the several states, and with the Indian [sic] tribes

Title 18 U.S.C. 924(a)(2) of the United State Code provides:

Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of

section 922 shall be fined as provided in this title, imprisoned not more

than 10 years, or both.

Title 18, Section 922(g) of the United States Code provides in part:

It shall be unlawful for any person –

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 ammunition; or to receive any firearm

or ammunition which has been shipped or transported in interstate or

Page 1

foreign commerce

FEDERAL SENTENCING GUIDELINES INVOLVED

Application Note 1(B)(iii) to USSG §2L1.2 in the 2015 version of the Federal Sentencing Guidelines

states:

Crime of violence" means any of the following offenses under federal,

state, or local law: murder, manslaughter, kidnapping, aggravated

assault, forcible sex offenses (including where consent to the conduct is

not given or is not legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced), statutory rape, sexual abuse of a

minor, robbery, arson, extortion, extortionate extension of credit, burglary

of a dwelling, or any other offense under federal, state, or local law that

has as an element the use, attempted use, or threatened use of physical

force against the person of another.

USSG §2L1.2, n. (1)(B)(iii)(2015).

STATEMENT OF THE CASE

A.

Trial Court Proceedings

On February 15, 2017, an indictment was filed in the Northern District of Texas,

Fort Worth Division, which indictment charged that Mr Robinson, being a person who

had “been convicted in a court of a crime punishable by imprisonment for a term in

excess of one year, did knowingly possess in and affecting interstate commerce, a

firearm . . . .”

Mr. Robinson entered a plea of guilty to the indictment. He was advised that the

element of the offense with regard to the interstate commerce element are as follows:

“[t]hat the defendant’s possession of the described firearm was in and affecting

interstate or foreign commerce; that is, before the defendant possessed the

described firearm, it had traveled at some time from one State to another.”

(Emphasis added.) The facts that ostensibly supported the plea, stipulated to by Mr.

Robinson, as to the interstate commerce element, were that the firearm “was not

manufactured within the State of Texas and would have had to move in and affect

Page 2

interstate or foreign commerce to reach the State of Texas.” As to the mens rea, the

elements as described required only that he knowingly possessed the firearm, and that

is what he stipulated to as the factual basis for the plea.

The Presentence Report found that the base offense level was 20. This finding

was based on another finding that Mr. Robinson's prior conviction for the Texas offense

of aggravated assault was a crime of violence. Mr. Robinson objected to that finding.

The district court overruled that objection. The district court sentenced Mr. Robinson

to 57 months, which was the bottom of the guidelines as determined by the court.

B.

Circuit Court Proceedings

On appeal, Petitioner argued, first, that the Texas offense of aggravated assault

is not equivalent to the generic definition of the offense, and that it is not otherwise a

“crime of violence” because it lacks the use, attempted use, or threatened use of

physical force as an element. Resolving the case, the court of appeals cited its prior

opinions in United States v. Guillen-Alvarez, 489 F.3d 197, 198 (5th Cir. 2007), which

held that the Texas aggravated assault offense is in all cases equivalent to generic

aggravated assault. [Appx. A]. On this basis, and without addressing the question of

whether the Texas offense has force as an element, it affirmed. [Appx. A].

Next, Petitioner argued that the criminal statute 18 U.S.C. §922(g)(1) as

construed violates the Constitution in that it regulates conduct that falls outside the

commerce clause, Article I, § 8, cl. 3. Robinson relied upon the Supreme Court decision

in Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012). Robinson also

contended that the the statute itself has been misconstrued by this Court. The statute

requires that the possession of the weapon be in affecting interstate commerce. This

phrase is defined by Fifth Circuit precedent to mean that the firearm crossed state

lines at some unspecified point in the past. The Fifth Circuit simply does not require

that the defendant’s possession itself in be in or affecting interstate commerce. Thus,

Page 3

the indictment does not allege that the defendant purchased the firearm, or possessed

it in connection with any manner of commercial transaction. Petitioner then argued

that, s the indictment does not allege, and the government did not prove, an offense

falling within the plain language of the statute, nor the commerce clause, the

conviction must be vacated and the indictment should be dismissed. Put another way,

the Fifth Circuit’s construction of 18 U.S.C. 922(g) is contrary to its plain words, and

violates the commerce clause facially and as applied.

Robinson further contended that the conviction should be vacated because the

indictment did not allege and there was no factual basis to establish that Robinson

knew that his possession of the firearm was in or affecting interstate commerce.

Robinson is relying upon, among other decisions, Flores-Figueroa v. United States, 556

U.S. 646 (2009).

The court of appeals summarily reviewed and affirmed. See Appx. A.

Page 4

REASONS FOR GRANTING THE WRIT

I.

The courts are divided on the generic definition of “aggravated

assault,” and, in particular, whether the Texas offense falls

within this generic definition. That division of authority

implicates an important and recurring issue in cases involving

the categorical approach: whether sentencing courts should

tolerate “minor differences” between the generic definition of an

offense and the prior statute of conviction, and, if so, how to

determine what kinds of differences are minor.

The Sentencing Guidelines, at USSG §2K2.1(a)(4) provide for a 6-level

enhancement to level 20 if before a prohibited person possessed a firearm he or she had

been convicted for a felony crime of violence. See USSG §2K1.1(a)(4). The definition of

“crime of violence,” found at USSG §4B1.1(a), includes several enumerated offenses,

among them “aggravated assault.” USSG §4B1.1(a). In cases where a criminal history

enhancement is triggered by a series of enumerated offenses, those offenses are given

their “ordinary, contemporary meaning,” and accorded a “generic definition.” See

Taylor v. United States, 495 U.S. 575, 598 (1990).

In United States v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007), the Fifth

Circuit held that convictions under the Tennessee aggravated assault statute may be

treated as equivalent to the enumerated offense of aggravated assault found in USSG

§2L1.2. See Mungia-Portillo, 484 F.3d at 814. That court recognized that generic

aggravated assault required recklessness manifesting extreme disregard for the value

of human life, not ordinary recklessness. See id. at 816-817. Though the Tennessee

statute permitted conviction for causing serious injury by ordinary recklessness, that

court found that difference to be “minor.” See id. It reached this conclusion based on the

definition of aggravated assault found in Black’s Law Dictionary and a criminal law

Page 5

treatise:

LaFave’s treatise makes no special note of the degree of the mental

culpability typical of an aggravated battery, and neither does Black's Law

Dictionary. See 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL

LAW, § 16.2(d); BLACK'S LAW DICTIONARY 162 (8th ed. 2004). We

infer from this that a defendant's mental state in committing an

aggravated assault, whether exhibiting “depraved heart” recklessness or

“mere” recklessness, is not dispositive of whether the aggravated assault

falls within or outside the plain, ordinary meaning of the enumerated

offense of aggravated assault.

Id. In United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007), that court

extended this holding to the Texas aggravated assault statute. See Guillen-Alvarez, 489

F.3d at 200-201.

Mungia-Portillo and Guillen-Alvarez have been rejected by three different courts

of appeals. See United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009); United

States v. Garcia-Jimenez, 807 F.3d 1079, 1086 (9th Cir. 2015); United States v.

Barcenas-Yanez, 826 F.3d 752, 756 (4th Cir. 2016);United States v. McFalls, 592 F.3d

707, 716-717 (6th Cir. 2010); United States v. Cooper, 739 F.3d 873, 880, n.1 (6th Cir.

2014).

In Esparza-Herrera, the Ninth Circuit held that the generic definition of

aggravated assault required at least extreme recklessness, and that ordinary

recklessness was not equivalent. See Esparza-Herrera, 557 F.3d at 1023-1025. It

expressly rejected Muniga-Portillo’s contrary reasoning. See id. at 1023. Similarly, the

Sixth Circuit found ordinary recklessness insufficient to qualify as the enumerated

offense of aggravated assault found in USSG §4B1.2. See United States v. McFalls, 592

F.3d 707, 716-717 (6th Cir. 2010). Later, in United States v. Cooper, 739 F.3d 873 (6th

Cir. 2014), it cited and rejected the Fifth Circuit’s opinion in Mungia-Portillo. See

Cooper, 739 F.3d at 880, n.1.

In United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015), the Ninth

Circuit revisited Esparza-Herrera, and found that it did not go far enough. See

Page 6

Garcia-Jimenez, 807 F.3d at 1086. In that case, the Ninth Circuit surveyed all state

aggravated assault statutes and found that a large majority require not extreme

recklessness but intentional conduct. See id. It thus held that no prior conviction for

aggravated assault would qualify as aggravated assault unless it required that serious

bodily injury be caused knowingly or intentionally. See id. The Fourth Circuit recently

agreed with this analysis, and held that the Texas aggravated assault statute – Mr.

Robinson’s offense – was non-qualifying. See United States v. Barcenas-Yanez, 826 F.3d

752, 756 (4th Cir. 2016).

In short, every court of appeals that has considered the reasoning or result of

Mungia-Portillo and Guillen-Alvarez has rejected it, even when the Texas statute was

presented. See Barcenas-Yanez, 826 F.3d at 756. The proper treatment of the Texas

aggravated assault offense should not depend on where a case happens to arise. Too

many years of imprisonment turn on this question for it to have so arbitrary an

answer.

This Court has previously said that it disfavors the resolution of Guideline

issues in its certiorari docket. See Braxton v. United States, 500 U.S. 344, 348 (1991).

But there are special reasons to address this division of circuit authority. First, the

generic definition of “aggravated assault” affects defendants under more than one

provision of the Guidelines. See USSG §§ 2L1.2, comment. (n. (1)(B)(iii))(2015), USSG

4B1.2(a)(2). Its use in §4B1.2's definition of a “crime of violence,” moreover, produces

extraordinary increases in the recommended sentences, as the Commission has been

instructed to recommend a sentence “at or near” the statutory maximum for defendants

subject to this provision. 28 U.S.C. §994(h). The case thus presents a special Guideline

issue with unusual influence over federal sentencing.

Second, this Court’s stated rationale for withholding review of Guideline issues

is that the Sentencing Commission can address inconsistencies in their application by

Page 7

amendment. But here the direct circuit conflict has existed since 2009, without any

sign of resolution. Indeed, the Commission has expressly declined to resolve the

division. See U.S. Sentencing Commission, Report to the Congress: Career Offender

Sentencing Enhancements 54 (August 2016)(declining to add a definition of enumerated

offenses, including “aggravated assault” because it believed “it ... best not to disturb

the

case

law

that

has

developed

over

the

years.”),

available

at

https://www.ussc.gov/research/congressional-reports/2016-report-congresscareer-offender-enhancements.

Third, the present case does not merely implicate a division about the

application of a single enhancement to a single statute of conviction. Rather, the

circuits addressing Texas aggravated assault have divided on the broadly applicable

question of whether “minor differences” between a statute and a generic definition may

be overlooked when applying the “categorical approach.” See Esparza-Herrera, 557 F.3d

at 1023 (“The Fifth Circuit's reasoning is not without insight but is foreclosed by our

precedent.”)

Finally, the case cannot be resolved on the alternate ground that Petitioner’s

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

person of another. The court below has held that “result oriented offenses” – offenses

that require injury but do not enumerate the mechanism by which it is caused – do not

involve force as an element. See United States v. Vargas-Duran, 356 F.3d 598, 606 (5th

Cir. 2004)(en banc); United States v. Villegas-Hernandez, 468 F.3d 874, 878-879 (5th

Cir. 2006); United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017). Accordingly, if this

Court simply addressed the generic definition and remanded the case, there is a good

probability that Petitioner would receive relief. Alternatively, if this Court wished to

address the force question itself, it could helpfully resolve another important issue that

has divided the courts of appeals. The courts of appeals disagree about whether an

Page 8

offense possesses the use of force for the purpose of provisions like §2L1.2 if it requires

“bodily injury,” but does not specify the mechanism by which such injury is inflicted

and/or permits conviction upon proof of recklessness. Compare United States v. Hill,

832 F.3d 135, 143-144 (2d Cir. 2016)(finding such offenses possess force as an element),

United States v. Chapman, 866 F.3d 129, 134-36 (3d Cir., 2017)(same), United States

v. Waters, 823 F.3d 1062, 1066 (7th Cir. 2016)(same), United States v. Rice, 813 F.3d

704, 706 (8th Cir. 2016)(same), and Arellano Hernandez v. Lynch, 831 F.3d 1127,

1131-1132 (9th Cir. 2016)(same), with Whyte v. Lynch, 807 F.3d 463, 470 (1st Cir.

2015)(injury is not equivalent to force), and United States v. Fields, 863 F.3d 1012 (8th

Cir. 2017)(reckless causation of injury is not the use of force).

Page 9

II.

This Court should use this case to answer the reoccurring,

important question whether, when enacting the Unlawful Felon

in Possession of a Firearm statute (18 U.S.C. § 922(g)(1), Congress

intruded into an area traditionally left to the states’ exercise of

the police power and exceeded its authority under the Commerce

Clause; whether the courts below have contradicted the plain

words of the statute, legislative history, and this Court’s holdings

in allowing for convictions that do not comport with the statute’s

requirements that the possession of the firearm be in or affection

interstate commerce or that there be a knowing violation of the

statute.

In light of Bond v. United States, 134 S.Ct. 2077 (2014). Nat’l Fed’n

of Indep. Bus. v. Sebelius,567 U.S. 519 (2012) (NFIB) and the

dissent from denial of certiorari in Alderman v. United States,131

S. Ct. 700, 701 (Thomas and Scalia, JJ., dissenting from denial of

certiorari), citing United States v. Lopez, 514 U.S. 549, 558–559

(1995), does the federal Unlawful Felon in Possession of a Firearm

statute (18 U.S.C. § 922(g)(1)), as construed (or misconstrued) by

the circuit courts, exceed Congress’s authority to regulate under

the Commerce Clause?

The Court should review this increasingly-timely issue because the admitted-to

facts establish only that the firearm in question had traveled in interstate commerce

at an earlier, undetermined time and in no way implicate–much less–establish any

effect on interstate commerce, much less a requisite substantial effect on commerce.

A. Introduction.

“In our federal system, the National Government possesses only limited powers;

the States and the people retain the remainder.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519, 533 (2012). Powers outside those explicitly enumerated by the

Constitution are denied to the National Government. See id. (“The Constitution's

express conferral of some powers makes clear that it does not grant others.”). There is

no general federal police power. See United States v. Morrison, 529 U.S. 598, 618-619

Page 10

(2000). Every exercise of Congressional power must be justified by reference to a

particular grant of authority. See Nat’l Fed’n of Indep. Bus., 567 U.S. at 535 (“The

Federal Government has expanded dramatically over the past two centuries, but it still

must show that a constitutional grant of power authorizes each of its actions.”). A

limited central government promotes accountability and “protects the liberty of the

individual from arbitrary power.” Bond v. United States, 134 S.Ct. 2077, 2091 (2014).

The Constitution grants Congress a power to “regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3.

But this power “must be read carefully to avoid creating a general federal authority

akin to the police power.”Nat’l Fed’n of Indep. Bus., 567 U.S.. at 536.This Court has

held that “[t]he power of Congress over interstate commerce is not confined to the

regulation of commerce among the states,” and includes a power to regulate activities

that “have a substantial effect on interstate commerce.” United States v. Darby, 312

U.S. 100, 118-119 (1941).

B.

Alderman v. United States: What properly constitutes a

“Substantial Affect on Commerce?”

As this Court almost certainly knows, numerous “facial” challenges have been

brought to Section 922(g)(1) on the basis that, to conform with the Court’s opinion in

United States v. Lopez, section § 922(g)(1) must set out a “substantial affect” on

interstate commerce. The gist of those challenges is that Lopez identifies three

categories of activity that Congress’s commerce power authorizes it to regulate: (1) the

use of the channels of interstate commerce; (2) the instrumentalities of interstate

commerce; and (3) “activities having a substantial relation to interstate commerce . .

. i.e., those activities that substantially affect interstate commerce.” See Alderman v.

United States, 131 S. Ct. 700, 701 (Thomas and Scalia, JJ., dissenting from denial of

certiorari ), citing United States v. Lopez, 514 U.S. 549, 558–559 (1995). Challengers

have assailed the statute, arguing that mere possession of a firearm that may have

Page 11

moved in interstate commerce at some earlier point is not an activity that falls within

Lopez’s third category.

Of course, although with some notable (and increasing) dissents, the circuit

courts— including the Fifth Circuit—have rejected these Lopez challenges and relied

on this Court’s pre-Lopez opinion in Scarborough v. United States, 431 U.S. 563 (1977),

when doing so. In Alderman, however, Justices Scalia and Thomas, noted the

confusion at the circuit court level concerning the interaction between Scarborough and

Lopez.in doing so. See Alderman, 131 S. Ct. at 701–02.

Petitioner submits that 18 U.S.C. § 922(g)(1) is unconstitutional and that

Lopez—and not Scarborough—resolves the challenge in his favor. And he suggests that

Justice Thomas and Justice Scalia’s reasoning in the Alderman dissent from the

denial-of-certiorari only buttresses the need for the Court to decide this case. This is

certainly so in light of the Court’s 2012 and 2014 decisions discussed below.

C.

National Federation v. Sebellius: A Refinement of the Commerce

Clause Analysis.

In Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (NFIB), this Court

suggested a different Commerce Clause analysis comes to bear. In NFIB five members

of this Court found that the individual mandate component of the Affordable Care Act

could not be justified by reference to the Commerce Clause. See Nat’l Fed’n of Indep.

Bus.,132 S.Ct. at 2591 (Roberts., C.J. concurring). Although this Court recognized that

the failure to purchase health insurance affects interstate commerce, five Justices did

not think that the constitutional phrase “regulate Commerce ... among the several

States,” could reasonably be construed to include enactments that compelled

individuals to engage in commerce. See id. at 2586 (Roberts., C.J. concurring). Rather,

they understood that phrase to presuppose an existing commercial activity to be

regulated. See id. (Roberts., C.J. concurring).

Page 12

The majority of this Court in NFIB thus required more than a demonstrable

effect on commerce: the majority required that the challenged enactment itself be a

regulation of commerce – that it affect the legality of pre-existing commercial activity.

Possession of firearms, like the refusal to purchase health insurance, may

“substantially affect commerce.” But such possession is not, without more, a

commercial act.

To be sure, NFIB does not explicitly repudiate the “substantial effects” test.

Indeed, the Chief Justice’s opinion quotes Darby’s statement that “[t]he power of

Congress over interstate commerce is not confined to the regulation of commerce

among the states...” Nat’l Fed’n of Indep. Bus., 567 U.S. at 549 (Roberts., C.J.

concurring); see also id. at 552-53 (Roberts., C.J. concurring) (distinguishing Wickard

v. Filburn, 317 U.S. 111 (1942)). It is therefore perhaps possible to read NFIB

narrowly: as an isolated prohibition on affirmatively compelling persons to engage in

commerce. But it is difficult to understand how this reading of the case would be at all

consistent with NFIB’s textual reasoning.

This is so because the text of the Commerce Clause does not distinguish between

Congress’s power to affect commerce by regulating non-commercial activity (like

possessing a firearm), and its power to affect commerce by compelling people to join a

commercial market (like health insurance). Rather it simply says that Congress may

“regulate ... commerce between the several states.” And that phrase either is or is not

limited to laws that affect the legality of commercial activity. Five justices in NFIB

took the text of the Clause seriously and permitted Congress to enact only those laws

that were, themselves, regulations of commerce. NFIB thus allows Congress only the

power “to prescribe the rule by which commerce is to be governed.” Gibbons v. Ogden,

22 U.S. 1, 196, 9 Wheat. 1 (1824).

And indeed, much of the Chief Justice’s language in NFIB is consistent with this

Page 13

view. This opinion rejects the government’s argument that the uninsured were “active

in the market for health care” because they were “not currently engaged in any

commercial activity involving health care...” id. at 556 (Roberts., C.J. concurring)

(emphasis added). The Chief Justice significantly observed that “[t]he individual

mandate's regulation of the uninsured as a class is, in fact, particularly divorced from

any link to existing commercial activity.” Id. (Roberts., C.J. concurring) (emphasis

added). He reiterated that “[i]f the individual mandate is targeted at a class, it is a

class whose commercial inactivity rather than activity is its defining feature.” Id.

(Roberts., C.J. concurring) (emphasis added). He agreed that “Congress can anticipate

the effects on commerce of an economic activity,” but did not say that it could

anticipate a non-economic activity. Id. (Roberts., C.J. concurring) (emphasis added).

And he finally said that Congress could not anticipate a future activity “in order to

regulate individuals not currently engaged in commerce.” Id. (Roberts., C.J.

concurring) (emphasis added). Accordingly, NFIB provides substantial support for the

proposition that enactments under the Commerce Clause must regulate commercial

or economic activity, not merely activity that affects commerce.

Here, Petitioner’s possession of the gun was not alleged to be, nor was there any

evidence that it was, an economic activity; this should have been fatal to the conviction.

As explained by NFIB, the Commerce Clause permits Congress to regulate only

activities, i.e., the active participation in a market. But 18 U.S.C. §922(g)(1)

criminalizes all possession, without reference to economic activity. Accordingly it

sweeps too broadly, and is certainly unconstitutional as applied against the defendant

in this prosecution.

Further, there was no allegation and no evidence that Petitioner was engaged

in the relevant market at the time of the regulated conduct. The Chief Justice has

noted that Congress cannot regulate a person’s activity under the Commerce Clause

Page 14

unless the person affected is “currently engaged” in the relevant market. Id. at 556..

As an illustration, the Chief Justice provided the following example: “An individual

who bought a car two years ago and may buy another in the future is not ‘active in the

car market’ in any pertinent sense.” Id. (emphasis added). As such, NFIB overrules the

long-standing notion that a firearm which has previously and remotely passed through

interstate commerce should be considered to indefinitely affect commerce without

“concern for when the [initial] nexus with commerce occurred.” Scarborough v. United

States, 431 U.S. 563, 577 (1963).

Here, there was neither an allegation nor evidence that Mr. Robinson was

“currently engaged” in the gun market at the time of his arrest. Nor was there

evidence as to how recently Petitioner came to possess the gun. As to Petitioner, at

least, the statute is unconstitutional.

D.

Bond. v. United States provides additional supporting authority

by which to illustrate congressional overreach.

The Fifth Circuit rejected Petitioner’s arguments because NFIB did not

expressly support Petitioner’s view of the Commerce Clause. But this Court’s decision

in Bond v. United States, 134 S.Ct. 2077 (2014), undercuts that lower court’s assertion.

Bond presented the question of whether federalism limits the authority of Congress to

implement a treaty by criminalizing areas of traditional state concern, specifically the

deployment of poisons. See Bond v. United States, 12-158, Petition for Certiorari

(August 1, 2012), 2010 WL 1506717.

In Bond, the Chief Justice wrote to explain that, as it had explained in NFIB,

the Court recognizes the federalism principles that delimit Congress’s regulatory

authority under the Commerce Clause. See Bond, 134 S.Ct. at 2088-2090. For virtually

all of the reasons set out there, its holding–that prohibitions on the use of poison

represent an area of traditional state concern, outside the scope of federal authority–

would occasion a finding that federal prohibitions on firearms possession are likewise

Page 15

unconstitutional. Firearms, like poison, are a dangerous instrumentality traditionally

committed to the State police power. Both arguably affect commerce, but prohibitions

firearm possession or the deployment of poison are not, either of them, prohibitions on

commercial activity in the ordinary case.

Here, of course, the record establishes only that Mr. Robinson was a felon and

that he had possessed a firearm that had, at some antecedent time, traveled in

interstate commerce to arrive in Texas. At no time in the proceedings below, did the

Respondent allege (or prove) an affect on interstate commerce, much less any

“substantial” effect. Furthermore, at the time he was arrested and the gun in question

detected, Petitioner was not engaged in any economic activity whatsoever.

Page 16

III.

Does the Fifth Circuit’s interpretation of 18 U.S.C. § 922(g),

(which is that the statute requires only that the government

prove that the defendant possessed a firearm that had been

shipped in the unknown past by unknown individual’s unrelated

to the defendant or his possession of the firearm), contradict the

plain words of the statute which require that the defendant “ship

or transport in interstate commerce, or possess in or affecting

commerce?”

Even if the statute on its face is deemed to be constitutional, the Fifth Circuit

has misconstrued the plain words of the statute and allowing for convictions that do

not meet Congress’s intent and which are unconstitutional. The Fifth Circuit’s

interpretation of § 922(g) contradicts the plain words of the statute which require that

the defendant “ship or transport in interstate . . . commerce, or possess in or affecting

commerce,” which is contrary to the idea that the government need only prove that the

defendant possessed a firearm that had been shipped in the unknown past by

unknown individual’s unrelated to the defendant or his possession of the firearm,

therefore the conviction below is invalid.

The statute requires and the indictment in this case alleged that Mr. Robinson’

possession of the a firearm is “in and affecting commerce.” However, this phrase is

defined by Fifth Circuit precedent to mean something different than those plain words

convey. The Fifth Circuit requires only that the jury find that the firearm crossed state

lines at some unspecified point in the past. Nor does the record establish any more

than this. The indictment did not allege and the record does not support an offense

falling within the plain words of the statute, nor the commerce clause

A conviction based on nothing more than the fact that the firearm passed from

one state to another at some point in the undetermined past, and with no showing that

Page 17

the interstate movement of the weapon was in any way related to its present

possession, comports with neither the statute nor the Constitution. The statute in

question, makes it unlawful for a felon to “possess in or affecting commerce, any

firearm or ammunition . . . .”

18 U.S.C. 922(g) (emphasis added). The current

possession of a firearm that has come to rest in a state in the distant past is not a

possession in interstate commerce nor is it a possession affecting intestate commerce.

Moreover, the fact that an item has moved from one state to another at some point in

the undetermined past is not a sufficient basis to confer power to the federal

government to regulate possession of the item under the Commerce Clause. See U.S.

Const. art. I, § 8, cl. 3. The reliance on the interstate movement of a firearm in the

undetermined past as a basis for a federal prosecution/conviction is inconsistent with

the holdings in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,

529 U.S. 598, 627 (2000), and Jones v. United States, 529 U.S. 848, 859 (2000).

This Court should grant review to correct the blatant and pervasive error.

Page 18

IV.

Did the Fifth Circuit err in reading the statutory scheme which

requires a knowing violation of 18 U.S.C. § 922(g) for there to be

an offense, as requiring only a knowing possession of a firearm,

in contradiction to the plain language of the statute, the

legislative history of the statute and this Court’s holdings in

Bryan v. United States, 524 U.S. 184, 193 (1998), Flores-Figueroa

v. United States, 556 U.S. 646 (2009), Staples v. United States, 511

U.S. 600, 618-19 (1994), McFadden v. United States, 135 S.Ct. 2298

(2015), United States v. X-Citement Video, 513 U.S. 64, 72 (1994);

Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v.

United States, 342 U.S. 246, 273 (1952), which hold that where the

mens rea is “knowingly,” the government must prove the

defendant had knowledge of the facts that constitute the offense?

The Fifth Circuit has contradicted the plain words of the statute, legislative

history, and this Court’s holdings in allowing for convictions that do not comport with

the statute’s requirements that knowing violation of the statute. This Court should

grant review to correct another blatant and pervasive misconstruction of the statute

regarding the proper mens rea. The courts below all hold that the government need

only prover a knowing possession of a firearm. The courts are wrong.

The plain language of the statue limits prosecutions to one who

“knowingly violates” the statute.

In 1986, Congress passed the Firearms Owners Protections Act [FOPA]. A major

thrust of this legislation was to alter the previous federal criminal law governing

firearms by explicitly doing away with strict liability or quasi strict liability for

offenses. Thus, Congress added the requirement in 18 U.S.C. § 924, that for a person

to be liable for punishment, the government must prove that the person either willfully

or knowing violated the relevant section of § 922(g). The explicit language of the

Page 19

relevant statute in this case allows the government to punish “[w]hoever knowingly

violates subsection . . . (g) . . . of 922 . . . .” (Emphasis added.) The statute simply does

not punish whoever “knowingly possesses a firearm” if that person happens to be a

felon. Nor does the statute punish whoever “knowingly possesses a firearm” if the

firearm possession happens to be in or affect interstate commerce. It punishes

“whoever knowing violates” the statute.

Knowing possession of a weapon is obviously not by itself a crime. The statute

requires a knowing violation of § 922(g). Thus, by the plain words of the statute, the

defendant must know these three things: that he is a felon, that he possessed a

weapon, and that the possession of the weapon was in or affecting interstate commerce.

This Court has held that the government must prove the defendant knew

all the circumstances that make his possession of a weapon a federal

offense

The Supreme Court has held that the knowing violation requirement in 18

U.S.C. § 924 requires the government to prove that the defendant did have “knowledge

of the facts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193

(1998) Yet again, in Flores-Figueroa v. United States, 556 U.S. 646 (2009), following

a line of cases, the Court held that when a statute requires the government to prove

the defendant acted knowingly, it must prove he knew the facts that made his conduct

a federal offense. Id. at 650-57 1891. In Staples v. United States, 511 U.S. 600, 618-19

(1994), the Court held that, even when a statute has no explicit “knowing” element, the

government must prove that a defendant had knowledge of “the facts that make his

conduct illegal.”

In Staples, the Supreme Court noted that there is a “presumption that a

defendant must know the facts that make his conduct illegal” which “should apply”

especially where the alternative is that the statute “would require the defendant to

have knowledge only of traditionally lawful conduct. . . .” Id. Here, the knowing

Page 20

possession of a firearm is not only traditionally lawful conduct, it is a fundamental

right. See District of Columbia v. Heller, 540 U.S. 570, 602 (2008). Also, the Supreme

Court noted that the “severe penalty” of a potential 10-year sentence suggested that

Congress did not intend to jettison the usual requirement that the defendant know the

facts that make his conduct illegal. See Staples, 511 U.S. at 618. Here, the maximum

penalty for a § 922(g) case can be life, if enhancements apply! See 18 U.S.C. § 924(e).

The legislative history also directly supports the idea that Congress

intended that the government must prove the defendant knew the facts

and circumstances that constitute the offense.

Congress explicitly stated that the government must prove the defendant knew

the facts and circumstances that constitute the offense. “It is the Committee’s intent,

that unless otherwise specified, the knowing state of mind shall apply to circumstances

and results.” H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S.

Code Cong. and Ad.News 1327, 1351-52.

The legislative history reveals that a major thrust of the FOPA was to

completely alter the gun laws to abolish or alter the perceived “strict liability” created

by the absence of any scienter requirement in the statute, and by the Supreme Court’s

decision in United States v. Freed, 401 U.S. 601, 609 (1971).

A panel of the Fifth Circuit wrongly decided this issue in United States v. Dancy,

861 F.2d 77 (5th Cir. 1988), but in light of Bryan, Staples, and Flores-Figueroa, and

other Supreme Court cases, that decision is not valid.

Moreover, Dancy is called into question by the Supreme Court’s decision in

McFadden v. United States, 135 S.Ct. 2298 (June 18, 2015). The Court in McFadden

construed 21 U.S.C. §841(a)(1) (the Controlled Substances Act, or “CSA”) as

incorporated by 21 U.S.C. §802(32)(A) (the Controlled Substance Analogue

Enforcement Act of 1986, or “Analogue Act”). The Analogue Act identifies a group of

chemicals similar to controlled substances and tells the courts to treat them as though

Page 21

they were controlled substances in certain circumstances. See 21 U.S.C. §802(32)(A).

The CSA makes it a crime “for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,

or dispense, a controlled substance.” 21 U.S.C. §841(a)(1). At issue in McFadden was

what precisely a defendant had to know in order to “knowingly ... distribute ... a

controlled substance,” in the context of a prosecution for distributing an analogue. See

McFadden, 135 S.Ct. at 2302.

The Court in McFadden held that the defendant must know not merely that he

or she is distributing something, but that he or she is distributing “a controlled

substance.” See id. at 2304. This is true whether or not the defendant is prosecuted for

trafficking an analogue. See id. at 2305. Notably, the “controlled substance” element

embraces a legal conclusion – to say that something is a controlled substance provides

information about its treatment under federal law. McFadden nonetheless held that

the knowledge element attaches to this requirement. See id. at 2304.

The McFadden court specified two ways that a defendant may “know” that a

distributed substance is “a controlled substance.” First, he or she may know directly

the truth of the legal proposition required for conviction: that the distributed substance

meets the legal definition of “a controlled substance.” That is, he or she may know:

that the substance with which he was dealing is some controlled

substance—that is, one actually listed on the federal drug schedules or

treated as such by operation of the Analogue Act—regardless of whether

he knew the particular identity of the substance.

Id. at 2305. Second, the defendant might know “all of the facts that make his conduct

illegal.” See id. That is, he or she might know what the substance is, even without

knowing that the substance is controlled. See id. (holding that the knowledge element

“can be established by evidence that the defendant knew the specific analogue he was

dealing with, even if he did not know its legal status as an analogue.”)

Sections 922(g) and 924(a) are similar to the laws construed in McFadden.

Page 22

Section 924(a) provides criminal penalties for one who “knowingly violates subsection

... (g) ... of section 922...” And Section 922(g) is violated when a felon possesses a

firearm if that possession is undertaken “in or affecting commerce...” Like the term

“controlled substance,” the term “violates” embraces a legal conclusion. To say that a

defendant has “violated” a law is not merely to describe his conduct, it is also to provide

information about the way that conduct is treated by the law. And just as the CSA (and

the Analogue Act) requires the defendant to “knowingly ... distribute ... a controlled

substance,” so §924(a) provides penalties only if the defendant “knowingly violates

subsection ... (g) ... of section 922...”

McFadden suggests that when the term “knowingly” precedes a legal conclusion

in a criminal statute, the government may prove the element in one of two ways. First,

it may prove the defendant’s actual knowledge of that legal conclusion. In McFadden,

this meant the government could prove the defendant’s knowledge that the distributed

substance in question appeared on the list of controlled substances. See McFadden, 135

S.Ct. at 2305. Second, it may prove the facts underlying that legal conclusion, or “all

of the facts that make [the defendant’s] conduct illegal.” Id. In McFadden, this meant

knowledge of the substance’s identity, or of facts that placed it on the list of controlled

or analogous substances, even if the defendant did not know that the substance was

in fact controlled. See id.

Applying McFadden to §924(a), the government may prove a “knowing ...

violation” of §922(g) in either of two ways. First, it may prove the defendant’s actual

awareness that his conduct constituted a violation of §922(g). Second, it may prove that

the defendant’s knowledge of all facts that constitute a violation of §922(g), including

the fact that the firearm traveled in interstate commerce. There is no exception for

special elements involving a legal conclusion, or that are otherwise unlike traditional

components of a criminal offense. The “natural reading” of §924(a) flatly requires the

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defendant’s knowledge of a “violation” of §922(g), which statute is not violated without

interstate movement of a firearm.

McFadden also provides another important reason to overrule Dancy and its

progeny. A defendant’s conviction under the Analogue Act depends on the interplay of

two different statutes: the Analogue Act and the CSA. See 21 U.S.C. §§802(32)(A),

841(a). The knowledge requirement was found in the CSA, but nonetheless extended

to the Analogue Act. Specifically, the Court held that the defendant must know that

the substance is an analogue, either by knowing that it is so characterized, or by

knowing what it is. See McFadden, 135 S.Ct. at 2305. Similarly, §924(a) houses the

mens rea element relevant to the instant proceeding. Yet it incorporates 922(g),

without excluding that statute’s interstate commerce element. McFadden teaches that

the scheme’s failure to repeat the knowledge element in an incorporated statute does

not limit its reach.

McFadden, moreover, is hardly an isolated holding. It is the latest in a long

string of Supreme Court opinions that follow a basic rule of construction in criminal

cases, namely that:

courts ordinarily read a phrase in a criminal statute that introduces the

elements of a crime with the word “knowingly” as applying that word to

each element.

Flores-Figueroa, 556 U.S. at 652; United States v. X-Citement Video, 513 U.S. 64, 72

(1994); Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v. United States,

342 U.S. 246, 273 (1952). Section 924(a) – which requires that the defendant

“knowingly ... violate[]” another statute – falls naturally within this rule. Supreme

Court guidance now overwhelmingly supports the notion that all elements of a §922(g)

violation must be known by the defendant, including interstate transportation of the

firearm.

Therefore, this Court should grant review to correct this error.

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Conclusion

Because the Fifth Circuit refuses to apply this Court’s precedents to the federal

firearms statute at issue, Petitioner Robinson asks that this Honorable Court correct

this ongoing error by granting a writ of certiorari in this case.

Respectfully submitted this 29th day of May, 2018.

/s/ PETER FLEURY

PETER FLEURY

Counsel of Record

FEDERAL PUBLIC DEFENDER ’S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR ST., STE . 9A10

FORT WORTH , TEXAS 76202

817-978-2753

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