Submitted: September 26, 2019
from United States District Court for the Northern District
of Iowa - Cedar Rapids
GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge.
Davies pleaded guilty to two Iowa felonies in September 2016.
After he pleaded guilty but before his sentencing, Davies
possessed two firearms on October 25. In December, the Iowa
state court entered a deferred judgment against Davies and
placed him on probation.
law prohibits any person "who has been convicted in any
court of a crime punishable by imprisonment for a term
exceeding one year" from possessing a firearm. 18 U.S.C.
§ 922(g)(1). A grand jury thus returned an indictment
charging Davies with being a felon in possession of a firearm
for possessing the two firearms on October 25.
bench trial, the parties stipulated that Davies knowingly
possessed the firearms. But Davies contested whether he had
been convicted of a felony under Iowa law at the time he
possessed the firearms because he had not yet been sentenced.
The district court determined that Davies's guilty plea
constituted a conviction under Iowa law and found him guilty
of being a felon in possession of a firearm. He was sentenced
to 37 months' imprisonment.
appeal, Davies again argues that his guilty plea was not a
conviction under Iowa law and therefore, when he possessed
the two firearms prior to his sentencing, he was not a felon.
After the parties submitted their briefs, Davies filed a Rule
28(j) letter arguing that the Supreme Court's decision in
Rehaif v. United States, 139 S.Ct. 2191 (2019),
requires that we reverse his felon in possession conviction
and that the Double Jeopardy Clause requires that we remand
his case for dismissal. We ordered the parties to file
first consider whether Davies had been convicted under Iowa
law at the time he possessed the firearms on October 25. We
review legal questions de novo. See United
States v. Pate, 754 F.3d 550, 554 (8th Cir. 2014).
"What constitutes a conviction . . . shall be determined
in accordance with the law of the jurisdiction in which the
proceedings were held." 18 U.S.C. § 921(a)(20).
law allows a court to "defer judgment" against a
defendant in certain situations, and it allows a court to
place him "on probation upon conditions as it may
require." Iowa Code § 907.3(1)(a). In State v.
Deng Kon Tong, 805 N.W.2d 599, 601 (Iowa 2011), the Iowa
Supreme Court considered whether a defendant who had pleaded
guilty and received a deferred judgment had been convicted as
required by Iowa's felon in possession of a firearm
offense. See Iowa Code § 724.26. The court
determined that the deferred judgment qualified as a
conviction, observing that "the legislature intended the
statute to cover persons who had engaged in certain
conduct," which supported "a broad
interpretation of the term 'convicted.'"
Deng Kon Tong, 805 N.W.2d at 602. The concurring
opinion commented that the court "emphasizes the fact
that no person who enters a guilty plea on a felony in
anticipation of the court granting that person a deferred
judgment can ever possess a gun." Id. at 604
(Wiggins, J., concurring).
in State v. Olsen, 848 N.W.2d 363, 371 (Iowa 2014),
the Iowa Supreme Court concluded that a defendant who entered
a no contest plea in a Wisconsin state court had been
convicted such that he could be guilty as a felon in
possession under Iowa's felon-in-possession statute. The
Wisconsin court had accepted the no contest plea on the
record and had found that it was supported by a factual basis
and voluntarily entered. Id. The Iowa Supreme Court
concluded that "[a]ll judicial findings of guilt
pursuant to the plea bargaining process are convictions under
the general and popular use of the term," noting that
its result was "consistent" with the concurring
opinion's commentary in Deng Kon Tong that
"a defendant's guilty plea in anticipation of the
court's granting the defendant a deferred judgment is a
conviction for the purpose of enhancing a defendant's
punishment." Id. at 373 & n.1.
Olsen, the Iowa court here made judicial findings of
guilt because it accepted Davies's guilty pleas after
finding that they had a factual basis and that they were
voluntarily and intelligently entered. Davies argues that we
should apply the test in Schilling v. Iowa Department of
Transportation, but that case considered whether a
deferred judgment constituted a conviction after the Iowa
Department of Transportation revoked a driver's license.
646 N.W.2d 69 (Iowa 2002). And Olsen and Deng
Kon Tong "have recognized that the term
'conviction' may have a different meaning depending
on context." Olsen, 848 N.W.2d at 372. We thus
agree with the district court's conclusion that
Davies's guilty pleas constituted convictions under Iowa
law in Olsen and Deng Kon Tong.
consider the Rehaif issue first raised in
Davies's 28(j) letter. United States v.
Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019)
(considering a Rehaif argument raised while the
direct appeal was pending because "Supreme Court
decisions in criminal cases apply to all cases pending on
direct review"). In Rehaif, the Supreme Court
concluded "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 possessed a firearm and that he
knew he belonged to the relevant category of persons
barred from possessing a firearm." 139 S.Ct. at
2200 (emphasis added). Here, the relevant category of persons
is anyone "who has been convicted in any court of a
crime punishable by imprisonment for a term exceeding one
year." § 922(g)(1). Davies thus argues that even if
he was convicted under Iowa law, the Government did not prove
that he knew he had been convicted.
[Davies] failed to challenge the lack of a jury instruction
regarding his knowledge of his felony status, we review his
claim for plain error." Hollingshed, 940 F.3d
at 415. Under that standard, Davies must prove (1) an error,
(2) that is plain, and (3) that affects substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993);
Fed. R. Crim. P. 52(b). "Moreover, Rule 52(b) leaves the
decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not
exercise that discretion unless the error seriously affect[s]