In United States v. Davis, --- F.4th ---, No. 19-10066 (9th Cir. 2022), the Court affirmed Davis’ conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing.
As to the felon in possession convictions, Davis argued that, based on Rehaif, "the government and district court’s failure to advise him of an essential element of [the] offense should invalidate his conviction and guilty plea."
Applying plain-error review, the Court disagreed.
"Because Davis had been incarcerated for more than three years for his prior felony convictions, it defies common sense to suggest that he was unaware of his felon status at the time he possessed the firearm at issue."
"Again, the district court’s failure to include the knowledge of status element in its plea colloquy satisfies the first two prongs of our plain error inquiry. And again, Davis fails to show that this error implicates substantial rights."
"[W]hen the record contains indisputable evidence of prior felony convictions, as is true in this case, a trial court’s omission of the knowledge of status element during the plea colloquy generally does not implicate substantial rights."
As to the sentence, the "Federal sentencing guidelines call for a six-point sentence enhancement for defendants that have a previous conviction for a controlled substance offense. The district court concluded that Davis’ 2011 conviction for possession with intent to sell marijuana in violation of N.R.S. § 453.337 constitutes a “controlled substance offense” and thus applied the enhancement."
"[U]nder our recent decision in Bautista, the [parties] agree that Davis’ predicate conviction is not sufficient to trigger the sentence enhancement."
"We need not decide whether Bautista controls. Rather, we defer to the government’s concession on the sentencing issue. Specifically, the government has twice declined to defend imposition of the “controlled substance offense” enhancement. Under such circumstances, we decline to decide a question of law that is not presented by the parties, particularly when the government has made a concession in a criminal case."
