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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11601
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00454-TWT-JSA-1
ROBERT MARKS,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 22, 2021)
Before JILL PRYOR, LUCK and MARCUS, Circuit Judges.
PER CURIAM:
Robert Marks, a federal prisoner who pled guilty to, and was convicted of,
one count of possession of a firearm by a convicted felon,
18 U.S.C. § 922(g),
appeals the denial of his
28 U.S.C. § 2255 motion to vacate his conviction. The
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district court granted Marks a certificate of appealability (“COA”) on the issue of
whether he was entitled to relief under Rehaif v. United States,
139 S. Ct. 2191
(2019), which held that a conviction under § 922(g) requires that the defendant knew
of his status as a felon when he possessed a firearm. Marks, who did not appeal his
conviction directly, claims that: (1) Rehaif error is jurisdictional; and (2) his guilty
plea did not waive any Rehaif error. After thorough review, we affirm.
From an appellate jurisdiction standpoint, the scope of review in a § 2255
appeal is limited to issues specified in the COA, but we will read the COA to
encompass procedural issues that must be resolved before we can reach the merits
of the underlying claim. McCoy v. United States,
266 F.3d 1245, 1248 n.2 (11th
Cir. 2001). We are obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking. Application of Furstenberg Fin. SAS v. Litai Assets
LLC,
877 F.3d 1031, 1033 (11th Cir. 2017). We review de novo whether a district
court had subject matter jurisdiction. Colbert v. United States,
785 F.3d 1384, 1388–
89 (11th Cir. 2015). Under our prior-panel precedent rule, a prior panel’s holding is
binding unless it has been overruled or abrogated by the Supreme Court or by this
Court sitting en banc. In re Lambrix,
776 F.3d 789, 794 (11th Cir. 2015).
For an indictment to confer subject matter jurisdiction upon a district court, it
must allege that a defendant committed one or more “offenses against the laws of
the United States.” United States v. Moore,
954 F.3d 1322, 1333 (11th Cir. 2020)
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(quotations omitted). Notably, however, “[t]he absence of an element of an offense
in an indictment is not tantamount to failing to charge a criminal offense against the
United States.”
Id. (emphasis added). A defendant’s voluntary guilty plea waives
all non-jurisdictional defects in the proceedings against him. United States v.
Brown,
752 F.3d 1344, 1354 (11th Cir. 2014). A jurisdictional defect, by contrast,
may not be waived or procedurally defaulted, so a defendant need not show cause
and prejudice to collaterally attack a conviction suffering from a jurisdictional
defect. McCoy,
266 F.3d at 1248-49.
It is “unlawful for any person” who has been convicted of “a crime punishable
by imprisonment for a term exceeding one year” to “possess in or affecting
commerce, any firearm or ammunition.”
18 U.S.C. § 922(g). Section 924(a)(2)
provides that any person who “knowingly violates” § 922(g) may be imprisoned for
up to ten years. Id. § 924(a)(2).
In Rehaif, the Supreme Court held that, “in a prosecution under . . . § 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. However, because Rehaif
“neither stated nor intimated that [§] 922(g) is not a criminal prohibition,” and
because § 924(a)(2) is a penalty provision and “cannot stand alone as the sole
criminal offense,” we’ve rejected the claim that § 924(a)(2) must be included in an
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indictment to confer jurisdiction on the district court. Moore, 954 F.3d at 1337.
Thus, as we concluded in Moore, neither a criminal indictment’s failure to include a
mens rea element in charging a defendant of violating
18 U.S.C. § 922(g), nor that
indictment’s failure to track the language of § 924(a)(2), deprives a district court of
jurisdiction to enter a conviction against a defendant. Id. at 1336–37.
Here, we recognize that the COA encompasses Marks’s argument that the
Rehaif error rendered his guilty plea jurisdictionally deficient, but that argument is
nevertheless without merit. We are bound by our prior panel holding in Moore,
which held that so long as the indictment alleges some conduct sufficient to meet the
low burden of stating a crime against the United States -- like Marks’s indictment
does in this case -- the “mere omission of an element does not vitiate jurisdiction.”
Id. at 1336. On the record before us, the district court had jurisdiction when it
accepted Marks’s plea and convicted him in 2016.
We are also bound by Brown’s holding that a defendant’s voluntary guilty
plea waives all non-jurisdictional defects in the proceedings against him, and by
Moore’s holding that Rehaif error is non-jurisdictional. As a result, we are
compelled to conclude that Marks’s voluntary guilty plea waived any challenge to
his indictment under Rehaif, and we affirm. 1
1
Because Marks’s guilty plea waived any Rehaif error, we do not consider the
government’s alternate argument that Marks procedurally defaulted his Rehaif claim nor do we
consider Marks’s argument -- raised for the first time on appeal -- that Rehaif error is structural.
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AFFIRMED.
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