United States v. Trevino ( 2021 )

Case: 20-40249 Document: 00515763141 Page: 1 Date Filed: 03/02/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 2, 2021
No. 20-40249 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Javier J. Trevino,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:17-CR-897-1
Before Wiener, Dennis, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
To convict a defendant of a felon-in-possession charge under 18
U.S.C. § 922(g), the Government must prove that the defendant both
(1) knew he possessed a firearm and (2) knew he had the relevant (i.e., felon)
status when he possessed it. Rehaif v. United States, 139 S. Ct. 2191, 2194
(2019). Javier J. Trevino, who was convicted by a jury of being a felon in
possession of firearms, contends the Government must also prove he knew
that as a felon, he was prohibited from possessing firearms. We reject this
argument and AFFIRM Trevino’s conviction and sentence.
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No. 20-40249
Trevino was arrested in 2016 for sexual assault of a minor after his wife
reported that Trevino had been sexually assaulting her daughter, Trevino’s
stepdaughter, for years. The stepdaughter told investigators that Trevino
gave her pornographic videos. Law enforcement obtained a warrant to search
Trevino’s residence and seize evidence of the display of harmful material to
a minor, sexual assault, and child pornography. Upon execution of the
warrant, officers found 141 firearms and over three thousand pounds of
ammunition. A superseding indictment charged Trevino with one count of
being a felon in possession of 122 firearms in violation of 18 U.S.C. §§ 922(g)
and 924(a)(2). 1 Before trial, Trevino moved to suppress the evidence
discovered as part of the search, on the grounds that the search warrant was
based on speculative and conclusory information and therefore insufficiently
supported by probable cause. The district court denied the motion because
the judge who approved it had not only a substantial basis, but “actual
probable cause to investigate the offenses.” It also concluded there was “no
question that the good faith exception would kick in,” and moreover, the
evidence found was in plain view. 2
1
In 1987, Trevino was convicted of failing to properly complete firearms records
and of making false statements and entries on Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) forms in violation of 18 U.S.C. §§ 371, 922(m). Charges related to
Trevino’s alleged possession of child pornography and sexual abuse of his stepdaughter
were not included in this indictment.
2
An officer who searched the house testified that when he opened the door, he saw
“a bunch of mannequins that had weapons on them,” which were “right there in plain
view.” The court later remarked that this was “perhaps an extreme example” of the plain
view exception to the warrant requirement. This exception “allows officers to seize
evidence in plain view if they are lawfully in the position from which they view the evidence,
the incriminating nature of the evidence is immediately apparent, and the officers have a
lawful right of access to the evidence.” United States v. De Jesus-Batres, 410 F.3d 154, 159
(5th Cir. 2005).
2
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No. 20-40249
At trial, Trevino sought to introduce evidence establishing his lack of
knowledge that he was a person prohibited from possessing firearms. The
court declined his request to introduce evidence of the conditions of
supervised release for his prior felony conviction (which, unlike current
federal standard conditions, did not contain notice that he could not possess
firearms), despite Trevino’s argument that the evidence “goes . . . to
knowledge that he is a prohibited person.” The court explained the
Government was required to prove that Trevino knew he had a prior felony
conviction, “not that [he] knew [he] couldn’t possess a firearm.”
Accordingly, the court instructed the jury that the Government must prove
“that before the Defendant possessed the firearm the Defendant had been
convicted in court of a crime punishable by imprisonment for a term in excess
of one year; [and] that at the time of the charged act the Defendant knew that
he had been convicted of such an offense.” Trevino did not object to this
instruction.
The jury ultimately convicted Trevino of being a felon in possession.
The district court sentenced him to 60 months’ imprisonment and three
years of supervised release. Trevino appeals.
On appeal, Trevino argues that the district court erred in failing to
instruct the jury that the Government was required to prove he knew he was
prohibited from possessing a firearm. 3 In his view, Rehaif, 139 S. Ct. at 2200,
3
Trevino raises two other issues. First, he challenges the district court’s denial of
his motion to suppress, maintaining the judge who issued the warrant relied on misleading
information in the affidavit and that “the facts reek of a ‘set up.’” But below Trevino
argued that the affidavit failed to establish probable cause on its face and that the affiant
recklessly omitted material information, not that the affiant included false or misleading
facts in the affidavit. Trevino did not raise his current argument before the district court,
and arguments raised for the first time on appeal are waived. Certain Underwriters at Lloyd’s
v. Axon Pressure Prods. Inc., 951 F.3d 248, 273 n.20 (5th Cir. 2020). Even had he raised it
previously, Trevino has waived it on appeal by citing no legal authorities or relevant
3
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demands the Government establish not only that he knew that he possessed
a firearm and was a felon at the time of possession, but also that he knew that
the law prohibited felons from possessing firearms.
We review the district court’s jury instructions for abuse of discretion.
United States v. Sila, 978 F.3d 264, 267 (5th Cir. 2020). The district court
errs in rejecting a proposed instruction only if the instruction (1) was
substantially correct, (2) was not substantially covered in the charge given to
the jury, and (3) concerned an important issue in the trial so that the failure
to give the instruction seriously impaired the defendant’s ability to present a
given defense. United States v. John, 309 F.3d 298, 304 (5th Cir. 2002).
At bottom, Trevino’s defense is not that he lacked knowledge of the
facts that constitute the offense, but rather that he was unaware that federal
law prohibits felons from possessing firearms. He provides no jurisprudential
support for this argument, nor can we locate any in Rehaif itself. As the
Supreme Court noted in Rehaif, “the well-known maxim that ignorance of
the law . . . is no excuse . . . . normally applies where a defendant has the
requisite mental state in respect to the elements of the crime but claims to be
unaware of the existence of a statute proscribing his conduct.” 139 S. Ct. at
2198 (quotations omitted). The Court went on to explain that this maxim
does not apply where a mistake “concerning the legal effect of some collateral
matter . . . negat[es] an element of the offense.” Id. (quotations omitted).
Thus, for instance, an individual who mistakenly believes he is not within a
prohibited class—such as a “defendant who does not know that he is an
portions of the record. See FED. R. APP. P. 28(a)(8)(A); Hollis v. Lynch, 827 F.3d 436, 451
(5th Cir. 2016). Second, Trevino argues the district court erroneously denied his request
for a six-level reduction under United States Sentencing Guidelines § 2K2.1(b)(2).
However, he correctly concedes in his reply brief that he was not eligible for the reduction.
See U.S. SENT’G GUIDELINES MANUAL § 2K2.1(b)(2) & cmt. 6 (U.S. Sent’g Comm’n).
4
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“alien ‘illegally or unlawfully in the United States’”—“does not have the
guilty state of mind that the statute’s language and purposes require.” Id. at
2198; see also United States v. Robinson, 982 F.3d 1181, 1186 (8th Cir. 2020)
(recognizing “[a]fter Rehaif, it may be that a defendant who genuinely but
mistakenly believes that he has had his individual rights restored has a valid
defense to a felon-in-possession charge”). But a mistake concerning a
defendant’s knowledge that the law prohibits convicted felons from
possessing firearms does not negate any element of the offense. See Rehaif,
139 S. Ct. at 2195–96 (listing offense elements as: “(1) a status element”;
“(2) a possession element”; “(3) a jurisdictional element”; and “(4) a
firearm element”).
Our cases applying Rehaif have not required the Government to prove
knowledge of the statutory prohibition contained in § 922(g). See United
States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020) (interpreting Rehaif to
require “not only that the felon knows he is possessing a firearm—but that
the felon also knows he is a convicted felon”), petition for cert. filed (U.S. Aug.
20, 2020) (No. 20-5489); United States v. Huntsberry, 956 F.3d 270, 281 (5th
Cir. 2020) (considering under Rehaif whether defendant “knew his status as
[a] felon when he possessed the guns”). And our sister circuits have
uniformly rejected the argument that Rehaif requires such proof. 4
4
See United States v. Maez, 960 F.3d 949, 954–55 (7th Cir. 2020) (rejecting
argument that defendants must “know that it was a crime to possess a firearm as a result of
their prohibited status” (emphasis omitted)); Robinson, 982 F.3d at 1187 (“Rehaif did not
alter the well-known maxim that ignorance of the law (or a mistake of law) is no
excuse.”(quotations omitted)); United States v. Singh, 979 F.3d 697, 728 (9th Cir. 2020)
(“[T]he Government must prove only that [defendant] knew, at the time he possessed the
firearm, that he belonged to one of the prohibited status groups.”); United States v. Johnson,
981 F.3d 1171, 1189 (11th Cir. 2020) (“[T]hat a defendant does not recognize that he
personally is prohibited from possessing a firearm under federal law is no defense if he
knows he has a particular [prohibited] status.”); see also United States v. Bryant, 976 F.3d
5
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The district court instructed the jury that the Government had to
prove: (1) Trevino knowingly possessed a firearm; (2) he had been convicted
previously of a felony; (3) at the time of possession, he knew he had a prior
felony conviction; and (4) the firearm possessed traveled in interstate
commerce. The instructions therefore complied with the rule set forth in
Rehaif. 139 S. Ct. at 2200. The district court “clearly instruct[ed] jurors as
to the relevant principles of law” and therefore did not abuse its discretion in
rejecting Trevino’s request for a special jury instruction. See Sila, 978 F.3d
at 267 (quotation omitted).
AFFIRMED.
165, 172–73 (2d Cir. 2020) (noting that “a felon need not specifically know that it is illegal
for him to possess a firearm under federal law”).
6