United States v. Kenneth Door ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30213
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-05126-RBL-1
KENNETH RANDALE DOOR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted September 4, 2020
Seattle, Washington
Filed April 28, 2021
Before: Jay S. Bybee and Daniel P. Collins, Circuit
Judges, and James Alan Soto,* District Judge.
Opinion by Judge Bybee
*
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
2 UNITED STATES V. DOOR
SUMMARY**
Criminal Law
The panel affirmed a criminal judgment in a case in which
Kenneth Randale Door was convicted for being a felon in
possession of a firearm (18 U.S.C. §§ 922(g)(1)) and a felon
convicted of a crime of violence in possession of body armor
(18 U.S.C. § 931(a)).
The panel held that in light of Rehaif v. United States, 139
S. Ct. 2191 (2019), the district court committed plain error by
failing to require the government to prove Door’s knowledge
of his prohibited status and omitting the knowledge element
from the indictment and jury instructions. The government
admitted that Door’s § 922(g)(1) conviction is governed by
Rehaif, but contested the application of Rehaif with respect to
his § 931(a) conviction. The government asserted that Rehaif
only requires the government to prove that a defendant knew
of his status as a felon, not that he was a felon convicted of a
crime of violence. The panel rejected this contention,
concluding that Rehaif requires the government to prove that
a defendant charged with violating § 931(a) knew he had a
felony conviction and that the felony of which he was
convicted had “as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). The panel held that
Door cannot show that these errors affected the fairness,
integrity, or public reputation of the judicial proceedings.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOOR 3
The panel held that the district court did not clearly err in
applying an obstruction of justice enhancement pursuant to
U.S.S.G. § 3C1.1 based on Door’s pre-trial threats. The panel
rejected Door’s claims that the sentence was procedurally and
substantively unreasonable.
COUNSEL
Carlton F. Gunn; Law Office of Carlton F. Gunn, Pasadena,
California, for Defendant-Appellant.
Michael S. Morgan (argued), Assistant United States
Attorney; Brian T. Moran, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee
OPINION
BYBEE, Circuit Judge:
Defendant Kenneth Randale Door was convicted in 2014
for being a felon in possession of a firearm and a felon
convicted of a crime of violence in possession of body armor.
Relying on the Supreme Court’s intervening opinion in
Rehaif v. United States, 139 S. Ct. 2191 (2019), Door argues
that his convictions cannot stand because the government
failed to prove, the indictment failed to allege, and the jury
instructions failed to require that he knew of his prohibited
statuses. Door further asserts that the district court erred in
applying the obstruction of justice enhancement during
sentencing. Finally, Door challenges his sentence as both
procedurally and substantively unreasonable. We have
4 UNITED STATES V. DOOR
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We affirm.
I. FACTS AND PROCEEDINGS
A. Search, Indictment, and Trial
Kenneth Door has an extensive criminal history, including
convictions for burglary, theft, assault, and harassment. In
2011, an informant told an agent of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives that Door possessed guns
and was selling methamphetamine out of his home. Because
Door was on probation in Washington, the agent contacted a
Washington State Community Corrections officer, who
conducted a probation search of Door’s house in Tacoma.
The search revealed two pistols, multiple rounds of
ammunition for the pistols, two military grade ballistic vests,
an explosive device known as a “seal bomb,” two digital
scales, drug packaging materials, and two drug pipes
containing methamphetamine residue. Door was arrested
shortly thereafter.
While in the county jail, and before he was indicted on
federal charges, Door requested a meeting with his federal
case agent. During that visit, Door admitted that the guns,
vests, and seal bomb belonged to him. After the agent
testified at Door’s suppression hearing, Door told his attorney
that he intended to have the agent killed. The attorney asked
to be removed from the case and reported the threats to the
government. After his trial, Door made additional threats in
front of other inmates that he would have the case agent and
his former attorney killed.
UNITED STATES V. DOOR 5
In March 2012, Door was indicted in United States
District Court for the Western District of Washington and
charged with being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); a
felon convicted of a crime of violence in possession of body
armor in violation of 18 U.S.C. §§ 931(a) and 924(a)(7); and,
a felon in possession of explosives in violation of 18 U.S.C.
§§ 842(i)(1) and 844(a)(1). Door entered the following
stipulation regarding his felon and violent felon status:
Prior to November 9, 2011, Kenneth Door, the
defendant herein, had been convicted of a
felony crime punishable by a term of
imprisonment exceeding one year. That is a
crime of violence, as defined by law, and
therefore was a convicted felon and a person
convicted of a felony that is a crime of
violence at the time of the events that are the
subject of this prosecution.
Door proceeded to trial and was convicted on all counts.
B. Sentencing and First Appeal
The Probation Office (Probation) recommended a base
offense level of 24 due to “at least two felony convictions of
either a crime of violence or a controlled substance offense.”
Probation also recommended a number of Sentencing
Guidelines (Guidelines) enhancements, including for
possession of a destructive device (seal bomb), possession of
a stolen firearm, possession of firearms in connection with
another felony offense (drug trafficking), and obstruction of
justice (based on Door’s threats to kill the case agent and
others). Probation also concluded that Door was an armed
6 UNITED STATES V. DOOR
career criminal under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), based on his prior convictions
for attempting to elude a police vehicle, multiple second-
degree burglary convictions, and second-degree assault with
a deadly weapon.1 The enhancements, combined with Door’s
criminal history category of VI, produced a Guidelines range
of 262–327 months. Probation recommended 300 months.
Over Door’s objections, the district court found that the
enhancements and the ACCA applied and sentenced Door to
300 months.
On direct appeal, we found that the destructive device
enhancement did not apply to the seal bomb, and that the
district court made insufficient findings on the obstruction of
justice and the “in connection with another felony”
enhancements. United States v. Door, 647 F. App’x 755, 757
(9th Cir. 2016), as amended by 668 F. App’x 784 (9th Cir.
2016). We initially deferred ruling on the ACCA issue but
ultimately held that Door’s burglary convictions were not
violent felonies under the ACCA and vacated Door’s
sentence accordingly. United States v. Door, 656 F. App’x
376, 376–77 (9th Cir. 2016).
C. Re-sentencing and Second Appeal
On remand, Probation again recommended a base offense
level of 24, reasoning that Door’s prior Washington state
convictions for second-degree assault with a deadly weapon
and felony harassment constituted crimes of violence.
1
The ACCA categorization did not increase the Guidelines offense
level, but it did increase the statutory maximum sentence to life and
trigger a statutory mandatory minimum sentence of 15 years. 18 U.S.C.
§ 924(e).
UNITED STATES V. DOOR 7
Probation further recommended enhancements for possession
of a stolen firearm, possession of a firearm in connection with
another felony, and obstruction of justice. The
enhancements, coupled with Door’s criminal history category
of VI, produced a Guidelines range of 210–262 months.
Probation recommended a 276-month sentence due to Door’s
extensive criminal history.
Over Door’s objections, the district court determined at
sentencing that the second-degree assault and felony
harassment convictions qualified as crimes of violence under
the required categorical approach. The district court also
ruled that the various enhancements were supported by
sufficient evidence. During sentencing, the district court
noted its “long-standing criticism” of the categorical
approach but acknowledged that it was “duty-bound” to re-
sentence Door in accordance with the law. The district court
imposed the recommended sentence of 276 months, followed
by 5 years of supervised release. On Door’s second appeal,
we ruled that a felony harassment conviction is a crime of
violence for Guidelines purposes but that Door’s conviction
for second-degree assault is not and remanded accordingly for
a second re-sentencing. United States v. Door, 917 F.3d
1146, 1152–55 (9th Cir. 2019).2
2
In a concurrently filed memorandum disposition, we also determined
that Door’s felony harassment conviction constitutes a crime of violence
supporting his conviction for unlawful possession of body armor, and that
the enhancement for possessing a firearm in connection with another
felony was warranted. United States v. Door, 756 F. App’x 757, 758–59
(9th Cir. 2019). We declined to order reassignment on remand. Id.8 UNITED STATES V. DOOR
D. Second Re-sentencing and Current Appeal
At the second re-sentencing, Probation recommended a
base offense level of 20 based on Door’s felony harassment
conviction. Probation also recommended enhancements for
possession of a stolen firearm, possession of a firearm in
connection with another felony, and obstruction of justice.
The enhancements, coupled with Door’s criminal history
category of VI, produced a Guidelines range of 140 to
175 months. Probation again recommended 276 months.
The government did likewise. Door objected to all the
enhancements.
At the start of the re-sentencing hearing, the district court
again expressed frustration with the categorical approach
jurisprudence. Of Door, the district court stressed, “I
consider Mr. Door to perhaps be the most dangerous
defendant I have had in 18 or 19 years . . . . He did everything
and then more to justify his sentence, with the threats.”
Before imposing the sentence, the district court made clear
that it had heard argument and reviewed all of the material
submitted from both sides. In response to defense counsel’s
argument that Door’s recent good behavior in prison merited
mitigation, the district court agreed that re-sentencing
afforded an opportunity for “a mid-course correction” but
noted that Door was being sentenced for his past behavior,
“which is very serious.” The district court further observed
that “[t]he guidelines are a guide, unless they are not.”
In imposing the sentence, the district court adopted the
factual assertions in the PSR and applied the sentencing
enhancements. Relevant to this appeal, the district court
found—over Door’s objection—that the obstruction of justice
enhancement was warranted because it involved “the worst
UNITED STATES V. DOOR 9
kind of abuse of our system, including threats to officers.”
The district court then adopted the recommendation from
Probation and the government for 276 months, followed by
three years of supervised release.
In the present appeal, Door raises four issues: (1) whether
his felon in possession of firearm and violent felon in
possession of body armor convictions must be vacated
because the government failed to prove, the indictment failed
to allege, and the jury instructions failed to require that he
knew of his prohibited statuses when he possessed the
firearms and body armor, as required by Rehaif v. United
States, 139 S. Ct. 2191 (2019); (2) whether the district erred
in applying the Guideline enhancement for obstruction of
justice; (3) whether his sentence was procedurally and
substantively unreasonable; and (4) whether we should
reassign the case in the event of remand. We will consider
each issue in turn. Because we conclude that there was no
error in the first three issues raised, we need not reach the
question of reassignment, which in any event has been
mooted by the retirement of the district judge who imposed
the sentence.
II. KNOWING POSSESSION AND REHAIF
We first consider Door’s claim that the Supreme Court’s
intervening decision in Rehaif requires us to vacate his
convictions for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1)3 and a felon convicted of
3
18 U.S.C. § 922(g) makes it “unlawful for any person—(1) 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
10 UNITED STATES V. DOOR
a crime of violence in possession of body armor in violation
of 18 U.S.C. § 931(a)(1).4 Door asserts that the evidence
presented at trial was insufficient to sustain his convictions
because the government failed to prove he knew of his
prohibited statuses and, similarly, the indictment and jury
instructions omitted the requisite knowledge element. We
will begin with a discussion of Rehaif and then address
Door’s challenge to the sufficiency of the evidence.
A. Rehaif and Knowing Violations
Hamid Rehaif was convicted of violating 18 U.S.C.
§ 922(g)(5)(A) for being an alien unlawfully in the United
States in possession of firearms. See Rehaif, 139 S. Ct.
at 2194. A separate provision provides that any person who
“knowingly violates” § 922(g) shall be fined or imprisoned.
18 U.S.C. § 924(a)(2). Rehaif had come to the United States
on a student visa but had been dismissed from school, making
his presence unlawful. Rehaif, 139 S. Ct. at 2194. He was
arrested after he visited a firing range to shoot two firearms,
and was charged with violating § 922(g). Id. Rehaif argued
that although he had possessed firearms, the district court
ammunition . . . .” Section 924(a)(2) provides: “Whoever knowingly
violates subsection . . . (g) . . . of section 922 shall be fined as provided in
this title, imprisoned not more than 10 years, or both.”
4
18 U.S.C. § 931(a) makes it “unlawful for a person to purchase,
own, or possess body armor, if that person has been convicted of a felony
that is—(1) a crime of violence (as defined in section 16).” Section 16
provides, in relevant part: “The term ‘crime of violence’ means—(a) an
offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” Section
924(a)(7) states: “Whoever knowingly violates section 931 shall be fined
under this title, imprisoned not more than 3 years, or both.”
UNITED STATES V. DOOR 11
erred in instructing the jury that the government did not have
to prove Rehaif knew he was in the country unlawfully. Id.
at 2195. The Court agreed with Rehaif that the term
“knowingly” in § 924 applied to Rehaif’s conduct (possessing
the firearm) and his status (being an alien unlawfully in the
United States). Id. at 2200. Because it was not clear whether
the district court had correctly instructed the jury that it must
find that Rehaif knew he was out of status when he left
school, the Court reversed and remanded for further
proceedings. Id.
Although neither Door nor the government anticipated the
Court’s decision in Rehaif, Door gets the benefit of Rehaif on
his direct appeal. See Griffith v. Kentucky, 479 U.S. 314, 328
(1987) (“[A] new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear
break’ with the past.”). The government admits that Door’s
conviction under 18 U.S.C. § 922(g)(1) for being a felon in
possession of a firearm is governed by Rehaif, see United
States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019), but
it contests the application of Rehaif with respect to Door’s
conviction for being a violent felon in possession of body
armor pursuant to 18 U.S.C. § 931(a). The government
asserts that Rehaif only requires the government to prove that
a defendant knew of his status as a felon, not that he knew he
was a felon convicted of a crime of violence.
We think such a construction is incompatible with
Rehaif’s analysis. In Rehaif, the Supreme Court held that
“[t]he term ‘knowingly’ in § 924(a)(2) modifies the verb
‘violates’ and its direct object, which in this case is § 922(g).”
139 S. Ct. at 2195. The Court reasoned that “[a]s a matter of
12 UNITED STATES V. DOOR
ordinary English grammar, we normally read the statutory
term knowingly as applying to all the subsequently listed
elements of the crime.” Id. at 2196 (citation and internal
quotation marks omitted). The direct object, § 922(g),
contained a “status element,” namely that Rehaif was “an
alien . . . illegally or unlawfully in the United States.” Id. at
2195–96 (quoting 18 U.S.C. § 922(g)(5)(A)). The Court
found that “[a]pplying the word ‘knowingly’ to the
defendant’s status in § 922(g) helps advance the purpose of
scienter, for it helps to separate wrongful from innocent acts.”
Id. at 2197. Because “the possession of a gun can be entirely
innocent” it is “the defendant’s status, and not his conduct
alone, that makes the difference.” Id. Thus, the Court
expressed concern that, under the government’s construction,
these statutes might be applied to an alien who was brought
to the United States as a child and was unaware of his status,
or a person convicted of a prior crime who was given
probation and might not have known the crime was
punishable by imprisonment for a term exceeding a year. Id.
at 2197–98.
This same logic extends to the relationship between
§ 924(a)(7) and § 931(a)(1), which govern Door’s conviction
for possessing body armor. The term “knowingly” in
§ 924(a)(7) modifies the verb “violates” and its direct object,
“section 931.” Following Rehaif, “knowingly” thus applies
to all the elements listed in § 931(a)(1): “a person [who]
purchase[s], own[s], or possess[es] body armor, if that person
has been convicted of a felony that is––a crime of violence
(as defined in section 16).” The government offers no
explanation as to why the word “knowingly” in § 924(a)(7)
applies to the noun listed in § 931(a)(1) (“a felony”) but does
not apply to the phrase that qualifies it (“a crime of violence
(as defined in § 16)”). Instead, the government warns that
UNITED STATES V. DOOR 13
requiring proof of a defendant’s knowledge that he was
convicted of a crime that meets the legal definition of a crime
of violence places an impossible and unnecessary burden on
the government.
We think the government has overread Rehaif. We do not
understand Rehaif to mean that the government must prove
that the defendant knew that he had been convicted of a crime
that a court has specifically declared to be a “crime of
violence” under 18 U.S.C. § 16. That would be a nearly
impossible burden for the government, and it would severely
limit the scope of § 931(a)(1). Section 931(a)(1) does not say
“a crime of violence, declared to be such by a court”; rather,
it states “a crime of violence as defined in section 16.”
18 U.S.C. § 931(a)(1) (emphasis added; parenthesis omitted).
We understand Rehaif to mean that the government must
prove that a defendant who possessed body armor knew that
(1) he was convicted of a felony and, (2) the felony of which
he was convicted had as an element “the use, attempted use,
or threatened use of physical force.” 18 U.S.C. § 16(a). The
term “physical force” should be given its ordinary meaning,
which “in the context of a statutory definition of ‘violent
felony,’ . . . means violent force––that is, force capable of
causing physical pain or injury to another person.” Johnson
v. United States, 559 U.S. 133, 138, 140 (2010);5 see also
Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (observing that
“[t]he ordinary meaning of this term [crime of violence],
5
Johnson addressed the phrase “physical force” as used in
§ 924(e)(2)(B)(i), see 559 U.S. at 138, but the same phrase appears in
§ 16. Generally, “when Congress uses the same language in two statutes
having similar purposes . . . it is appropriate to presume that Congress
intended that text to have the same meaning in both statutes.” Smith v.
City of Jackson, 544 U.S. 228, 233 (2005).
14 UNITED STATES V. DOOR
combined with § 16’s emphasis on the use of physical force
. . . suggests a category of violent, active crimes”). If
anything, the case law in this area suggests that the lay
understanding of what constitutes a crime of violence may be
overinclusive, such that a defendant may find himself
pleasantly surprised to learn that a court has deemed his past
crime not to be a crime of violence.6
We thus conclude that Rehaif requires the government to
prove that a defendant charged with violating § 931(a) knew
he had a felony conviction and that the felony of which he
was convicted had “as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). We now turn to the
merits of Door’s asserted Rehaif errors, beginning with his
challenge to the sufficiency of the evidence.
B. Sufficiency of the Evidence
At the close of the government’s case, Door made a
general oral motion for a “directed verdict on all three
counts” under Federal Rule of Criminal Procedure 29.7 Door
offered no argument, and the district court denied his motion.
Door summarily renewed his Rule 29 motion on all charges
after closing argument, which the district court promptly
denied.
6
Our recent decision in United States v. Begay, 934 F.3d 1033 (9th
Cir. 2019), offers an example of perhaps a less intuitive holding in which
we determined that second-degree murder does not constitute a crime of
violence. See id. at 1042 (N.R. Smith, J., dissenting) (“How can this
be?”).
7
Not pertinent to this appeal, Door also challenged the sufficiency of
the evidence supporting his ACCA eligibility in his Rule 29 motion.
UNITED STATES V. DOOR 15
Both parties initially assumed that Door’s summary Rule
29 motion entitled him to de novo review of his sufficiency
of the evidence claim under Rehaif, and both sides briefed the
issue as such. In its brief, the government explained that it
believed de novo review was required based on our precedent
holding that a general Rule 29 motion preserves all objections
to the sufficiency of the evidence. See, e.g., United States v.
Navarro Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (“Rule 29
motions for acquittal do not need to state the grounds upon
which they are based.”). Where preserved, “[w]e review de
novo the denial of a motion for acquittal.” United States v.
Niebla-Torres, 847 F.3d 1049, 1054 (9th Cir. 2017).
Following oral argument, however, we held in United
States v. Johnson, 979 F.3d 632 (9th Cir. 2020), amending
963 F.3d 847 (9th Cir. 2020), that plain error, not sufficiency
of the evidence, is the proper standard to review an
unpreserved Rehaif error. In that case, Lamar Johnson was
convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Id. at 634. After we
affirmed his conviction, the Supreme Court decided Rehaif.
Id. Johnson subsequently filed a petition for certiorari, “in
which he argued for the first time that the government failed
to prove at trial that he knew of his status as a convicted
felon.” Id. at 635. The Supreme Court granted his petition
and, on remand, we analyzed Johnson’s Rehaif argument as
a challenge to the sufficiency of the evidence. Id. Because
Johnson had not raised his sufficiency challenge in the district
court, however, we reviewed his claim for plain error and
found no manifest injustice. Id. (citing Johnson, 963 F.3d
at 850).
Johnson then petitioned for rehearing and rehearing en
banc, arguing that because he had pled not guilty and
16 UNITED STATES V. DOOR
proceeded to a bench trial, the panel should have reviewed his
sufficiency of the evidence challenge de novo. Id.
(discussing United States v. Atkinson, 990 F.2d 501, 503 (9th
Cir. 1993) (en banc) (holding that, in a bench trial, a
defendant who had pled not guilty need not move for
acquittal to preserve an objection to the sufficiency of the
evidence)). Denying rehearing and rehearing en banc, we
filed an amended opinion. Johnson, 979 F.3d at 635–36. We
concluded that Atkinson was inapposite because “although
Johnson [] framed his argument as a challenge to the
sufficiency of the evidence, that [was] not in fact the correct
way to conceive of it.” Id. at 636. As we explained, “a
sufficiency challenge must be assessed against the elements
that the government was required to prove at the time of
trial.” Id. (citing United States v. Kim, 65 F.3d 123, 126–27
(9th Cir. 1995); United States v. Weems, 49 F.3d 528, 530–31
(9th Cir. 1995)). Johnson did not dispute that the government
had introduced sufficient evidence at trial under our pre-
Rehaif precedent; thus his Rehaif challenge was “best
understood . . . as a claim that the district court applied the
wrong legal standard in assessing his guilt––specifically, by
omitting the knowledge-of-status element now required under
Rehaif.” Id. (emphasis added). Because a district court’s
legal error during a bench trial regarding the elements of the
offense is reviewed in the same manner as an erroneous jury
instruction––plain error where the defendant failed to
object––we held that Johnson’s claim was reviewable for
plain error and reaffirmed our prior conclusion. Id. at 636,
639.
Following oral argument in this case, the government
filed a 28j letter alerting us to Johnson. We asked the
government and Door to submit supplemental briefs
addressing what impact, if any, Johnson has on the standard
UNITED STATES V. DOOR 17
of review applicable to Door’s sufficiency of the evidence
challenge. Having reviewed the parties’ submissions, we
conclude that Johnson compels the conclusion that Door’s
sufficiency claim is subject to plain-error review.
Door first argues that the government has forfeited any
plain-error argument. Relying on United States v. Murguia-
Rodriguez, 815 F.3d 566 (9th Cir. 2016), Door urges the
panel that the government’s briefing of sufficiency of the
evidence operates as a forfeiture of plain-error review. But
unlike Murguia-Rodriguez, this is not a situation in which the
government failed to argue that, under controlling law, an
error was not objected to and therefore forfeited. Id.at 573–74. Rather, both parties assumed that the general rule
regarding preservation of sufficiency of the evidence claims
via summary Rule 29 motions extended to arguments based
on a change in the law after trial. Until Rehaif and Johnson,
there was no precedent on this precise question and, indeed,
at least two other circuits have reviewed Rehaif challenges to
the sufficiency of the evidence de novo where a general Rule
29 motion was made in the district court. See, e.g., United
States v. Staggers, 961 F.3d 745, 754 (5th Cir. 2020); United
States v. Maez, 960 F.3d 949, 959 (7th Cir. 2020). We think
the government gets the benefit of the same rule that allows
Door to bring his Rehaif claims—“an appellate court must
apply the law in effect at the time it renders its decision.”
Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969).
Although the government might have argued differently in its
original brief, we are not willing, in these circumstances, to
deem such failure a forfeiture. Cf. Murguia-Rodriguez,
815 F.3d at 574–75 (“Our rule, of course, is discretionary,
and there may well be good reason to apply plain error in a
particular case . . . .”).
18 UNITED STATES V. DOOR
Door next argues that we are not bound by Johnson
because Door had a jury trial, not a bench trial. We are not
persuaded that this distinction relieves us of our duty to
follow Johnson. Johnson advanced the precise claim that
Door asserts here: the government failed to prove at trial that
he knew of his prohibited statuses, as now required by Rehaif.
Johnson, 979 F.3d at 636. As in Johnson, Door does not
claim that the government failed to introduce “evidence
sufficient to satisfy each of the elements required for
conviction at the time of his trial.” Id. (emphasis added). We
fail to see how the difference between a jury trial and a bench
trial would require us to view these identical legal challenges
differently. Stated otherwise, if Johnson’s challenge could
not be conceived of as a sufficiency challenge, then neither
can Door’s. We thus understand Door’s sufficiency
challenge as a claim of trial error. Because Door did not
object to the trial court’s omission of the knowledge-of-status
element, we review for plain error under Rule 52(b).
Under plain-error review, we may reverse only where
there is an (1) error that is (2) plain, (3) affects substantial
rights, and (4) “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (cleaned up) (quoting
United States v. Young, 470 U.S. 1, 15 (1985)). In light of
Rehaif, it is clear that the district court erred in failing to
require the government to prove Door’s knowledge of his
prohibited statuses and that error is now plain. As we did in
Johnson, we will “assume without deciding that the district
court’s error affected [Door]’s substantial rights.” 979 F.3d
at 636. Thus, we will resolve this case under the fourth prong
of plain-error review.
UNITED STATES V. DOOR 19
This prong “helps enforce one of Rule 52(b)’s core
policies, which is to reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.” Id.
(citation and internal quotation marks omitted). To satisfy
the fourth prong, Door bears the burden of offering “a
plausible basis for concluding that an error-free retrial might
end more favorably.” Id. at 637 (discussing Johnson v.
United States, 520 U.S. 461, 470 (1997), wherein the
Supreme Court concluded that the failure to submit the
element of materiality to the jury did not warrant reversal
under the fourth prong of plain-error review because the
petitioner “presented no plausible argument that the false
statement under oath for which she was convicted . . . was
somehow not material to the grand jury investigation”). That
is, Door must demonstrate that a “miscarriage of justice
would otherwise result.” Id. at 636–37 (citations omitted).
No miscarriage of justice results where the “correction of an
unpreserved error would ultimately have no effect on the
judgment.” Id. at 638. We conclude that Door has not made
such a showing.
Beginning with Door’s § 922(g) conviction, Door cannot
show that our refusal to correct the district court’s error
would result in a miscarriage of justice. In reviewing for
plain error, we may examine the entire record on appeal. See
Johnson, 979 F.3d at 638; Benamor, 937 F.3d at 1189. When
Door possessed the firearms (and body armor), he had
multiple felony convictions for which he was sentenced to
prison terms ranging from 14 months to 10 years. Having
served more than a year in prison, Door cannot (and does not
attempt to) argue that a jury would find that he was unaware
of his status as a person previously convicted of an offense
punishable by more than a year in prison.
20 UNITED STATES V. DOOR
Turning to Door’s § 931(a)(1) conviction, we are likewise
convinced that Door cannot plausibly argue that he was
unaware of his status as a person previously convicted of a
felony that is a crime violence. To begin, Door and the
government entered into a stipulation that was read to the
jury, in which Door conceded that he had been convicted of
both predicate crimes in language identical to the statutes.
The stipulation provided:
Prior to November 9, 2011, Kenneth Door, the
defendant herein, had been convicted of a
felony crime punishable by a term of
imprisonment exceeding one year. That is a
crime of violence, as defined by law, and
therefore was a convicted felon and a person
convicted of a felony that is a crime of
violence at the time of the events that are the
subject of this prosecution.
Thus, at the very least, that stipulation admitted that Door
knew of the fact of his convictions at trial.
The more difficult question is whether the stipulation also
conceded that Door knew that at least one of his prior felonies
was punishable for a term exceeding a year and that one was
a crime of violence as defined in § 16 when he possessed the
firearms and body armor in 2011. Although the stipulation
did not explicitly state that Door knew of his prohibited
statuses, the stipulation recited that Door had been convicted
of a felony “punishable by a term of imprisonment exceeding
one year” and further specified that the felony was “a crime
of violence, as defined by law.” It is the shortest of steps for
a juror to conclude that, when Door possessed the firearms
and body armor, he knew of the crimes for which he had
UNITED STATES V. DOOR 21
previously been convicted. Being convicted of a felony is
generally a major life event; as the Second Circuit has aptly
observed, “given the rights to appointed counsel, effective
assistance of counsel, and due process, it is highly improbable
that a person could be convicted of a felony without being
aware that his possible sentence would exceed one year’s
imprisonment.” United States v. Miller, 954 F.3d 551, 559
(2d Cir. 2020) (footnotes omitted); see also Staggers,
961 F.3d at 757 (reasoning that, “absent any evidence
suggesting ignorance, a jury applying the beyond-a-
reasonable-doubt standard could infer that a defendant knew
that he or she was a convicted felon from the mere existence
of a felony conviction” as evidenced by the defendant’s
stipulation); United States v. Ward, 957 F.3d 691, 695–96
(6th Cir. 2020) (holding that a rational juror could have
inferred the defendant knew of his prohibited status based on
his stipulation and his lawyer’s emphasis on the stipulation,
and observing that “[a]lthough the stipulation of a prior
felony does not automatically establish knowledge of felony
status, it is strongly suggestive of it” (citation and internal
quotation marks omitted)).
The stipulation was, no doubt, a strategic concession by
Door because it precluded the government from presenting
evidence of Door’s status as a violent felon and laying out his
multiple prior convictions before the jury. See Old Chief v.
United States, 519 U.S. 172, 190–92 (1997). Had Door
refused to stipulate to his convictions, the government likely
would have—subject, of course, to the limitations imposed by
the Federal Rules of Evidence—introduced proof of his prior
convictions to establish the status element. See, e.g., United
States v. Weiland, 420 F.3d 1062, 1077–78 (9th Cir. 2005)
(analyzing the admissibility of records of convictions in a
§ 922(g) prosecution under Federal Rule of Evidence 403 in
22 UNITED STATES V. DOOR
the absence of the defendant’s stipulation to his criminal
status).
Moreover, this case presents a starkly different situation
than the hypothetical that the Court set out in Rehaif. In
Rehaif, the majority posited that a convicted felon might lack
knowledge that he was convicted of a crime punishable by
imprisonment for a term exceeding one year if he was
“convicted of a prior crime but sentenced only to probation.”
139 S. Ct. at 2198. In the Court’s hypothetical, the fact that
a defendant charged with a felony received probation might
have obscured the felon’s understanding of the length of the
sentence he had faced. By contrast, Door’s stipulation
admitted that he knew of his convictions and the defining
features of those crimes. There is nothing tricky or hidden in
the stipulation and therefore no ambiguity in what Door
stipulated to. As such, we think the stipulation tends to weigh
against reversal.
But we do not rest our decision on Door’s stipulation
alone. As discussed, our review is not limited to the record
adduced at trial, and Door had multiple felony convictions
when he possessed the body armor. One of those convictions
was for felony harassment under Wash. Rev. Code.
§§ 9A.46.020(1)(a)(i) and (2)(b)8 for “threatening to kill” a
person. We previously held in a published opinion in Door’s
prior appeal that a conviction under Wash. Rev. Code
8
The sections of the Washington harassment statute that applied to
Door’s 1997 conviction provided (1) “[a] person is guilty of harassment
if . . . [w]ithout lawful authority, the person knowingly threatens . . . [t]o
cause bodily injury in the future to the person threatened or any other
person”; and (2) a “person is guilty of a class C felony if . . . the person
harasses another person . . . by threatening to kill the person threatened or
any other person.” Wash. Rev. Code. § 9A.46.020.
UNITED STATES V. DOOR 23
§ 9A.46.020(2)(b) qualifies as a crime of violence because a
knowing threat to kill a person “necessarily entails the
threatened use of violent physical force against another
person.” Door, 917 F.3d at 1152. Door tries to downplay the
significance of this conviction by arguing that the record
contains no plea colloquy establishing that he understood the
nature of felony harassment. But it is Door’s burden to show
how the plain error has seriously affected the fairness,
integrity or public reputation of his judicial proceedings. See
Johnson, 520 U.S. at 470. Door has not carried that burden.
Nowhere does he offer a plausible argument that he lacked
the requisite knowledge of his status as a violent felon or that
he would have proceeded differently at trial had the
government been required to prove his knowledge of his
prohibited statuses. Indeed, we are quite confident that Door
would not have foregone the benefits of his stipulation if
Rehaif had been decided prior to his trial. The stipulation
shielded Door from having the government splay the details
of his prior felonies before the jury; Door has given us no
reason to think that it would be a prudent strategy to waive
his rights under Old Chief and withdraw his stipulation. See
Staggers, 961 F.3d at 756 (concluding that if Rehaif were in
effect at the defendant’s trial, he “would have stipulated to
both the felon-status element and the knowledge-of-felon-
status element to keep the jury ignorant of the inculpatory
details otherwise required to prove knowledge of felon
status”). In short, Door fails to persuade us that a correction
of the Rehaif error would ultimately affect the outcome. See,
e.g., United States v. Cotton, 535 U.S. 625, 633 (2002)
(“Surely the grand jury, having found that the conspiracy
existed, would have also found that the conspiracy involved
at least 50 grams of cocaine base.”). We therefore conclude
that the district court’s error did not seriously affect the
fairness, integrity or public reputation of judicial proceedings.
24 UNITED STATES V. DOOR
C. Indictment and Jury Instructions
Door argues that his indictment and jury instructions were
also flawed because neither stated that Door’s knowledge of
his prohibited statuses was an element of the crimes. Because
Door did not raise these challenges in the district court, we
review them for plain error. See Olano, 507 U.S. at 732.
1. Indictment
With respect to the § 922(g) charge, Count One of the
indictment alleged that Door, “having been convicted of a
crime punishable by imprisonment for a term exceeding one
year . . . did knowingly possess firearms.” Count One also
listed eleven different convictions with their docket numbers.
Similarly, with respect to the § 931(a) charge, Count Two
alleged that Door, “having been convicted of a felony crime
of violence . . . did knowingly possess body armor” and listed
six different convictions with their docket numbers.
The government claims that (1) Door has waived his
challenge to the indictment; and (2) the indictment is not
plainly insufficient because it tracked the statutory language
of § 922(g)(1) and § 931(a)(1). Both arguments lack merit.
First, a defendant may challenge an indictment after trial; our
review is just limited to plain error. See United States v.
Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002); see
also United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020).
Second, although the indictment uses the word “knowingly”
to describe the charged offenses, it only uses the word to
modify “possess firearms” and “possess body armor,”
respectively. In light of Rehaif, because the indictment only
charged Door with knowledge of possession, not knowledge
of his status, the indictment clearly failed to allege an element
UNITED STATES V. DOOR 25
of each offense. This was plain error. See Henderson v.
United States, 568 U.S. 266, 274 (2013) (explaining that an
error can be “plain” under Federal Rule of Criminal
Procedure 52(b) if it is plain at “the time of appellate
consideration” (citation and internal quotation marks
omitted)). But, for the reasons discussed, Door cannot show
that this error affected the fairness, integrity or public
reputation of the trial.
2. Jury Instructions
It is undisputed that “the absence of an instruction
requiring the jury to find that Defendant knew he was a felon
was clear error under Rehaif.” Benamor, 937 F.3d at 1188.
However, as discussed, Door cannot satisfy the final prong of
the plain-error test.
III. OBSTRUCTION OF JUSTICE
We next consider whether the district court erred in
applying the obstruction of justice enhancement. We review
the proper interpretation of the Guidelines de novo, the
district court’s factual findings made at sentencing for clear
error, and the application of the Guidelines to the facts of a
case for abuse of discretion. United States v. Gasca-Ruiz,
852 F.3d 1167, 1170 (9th Cir. 2017).
As a preliminary matter, our review is not, as the
government contends, limited to plain error. At sentencing,
Door objected to the obstruction of justice enhancement on
the grounds that the record was insufficient to show he made
any threats; Door now argues that the district court failed to
make a finding as to his purpose in making the alleged
threats. Door’s basic claim, however, remains the same: the
26 UNITED STATES V. DOOR
district court’s findings were insufficient to support the
obstruction of justice enhancement. See United States v.
Guzman-Padilla, 573 F.3d 865, 877 n.1 (9th Cir. 2009)
(holding that claims, not arguments, are waived or forfeited).9
An enhancement for obstructing or impeding the
administration of justice is warranted if “the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense
of conviction.” U.S.S.G. § 3C1.1. Door argues that his
alleged threats to kill his federal case agent can only support
an obstruction of justice enhancement if they were intended
to prevent future testimony or cooperation, not for the
purpose of retaliation.10 Even assuming retaliatory motive
alone is insufficient to warrant an enhancement under
U.S.S.G. § 3C1.1, the district court did not commit clear
error. Although Door communicated his threats after the
agent testified at the suppression hearing, he still made the
threats prior to the agent’s testimony at trial. These pre-trial
threats could reasonably be construed as an attempt to
9
Nor has Door waived his right to appeal the application of this
enhancement because he failed to raise it in his second appeal. We did not
limit the scope of the remand when we remanded Door’s case for a second
re-sentencing. See Door, 917 F.3d at 1155; Door, 756 F. App’x
at 758–59. The district court was thus “empowered to address all
sentencing issues following remand.” United States v. Pimentel, 34 F.3d
799, 800 (9th Cir. 1994).
10
But see United States v. Rubio, 317 F.3d 1240, 1244–45 (11th Cir.
2003) (holding retaliatory purpose sufficient because Application Note
4(i) to U.S.S.G. § 3C1.1 authorizes an enhancement based upon any
conduct prohibited by the obstruction of justice provisions of Title 18,
including 18 U.S.C. § 1513(b), which prohibits a person from inflicting
bodily injury on a witness with the intent to retaliate).
UNITED STATES V. DOOR 27
obstruct justice on the theory that Door wanted to prevent the
agent from testifying at his trial.
IV. SENTENCE
Finally, we consider Door’s claim that his sentence was
both procedurally and substantively unreasonable. The court
reviews the district court’s sentencing decision for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
“Procedural errors include, but are not limited to,
incorrectly calculating the Guidelines range, treating the
Guidelines as mandatory, failing to properly consider the
§ 3553(a) factors, using clearly erroneous facts when
calculating the Guidelines range or determining the sentence,
and failing to provide an adequate explanation for the
sentence imposed.” United States v. Armstead, 552 F.3d 769,
776 (9th Cir. 2008). Door argues that his sentence is
procedurally unreasonable because the district court gave the
Guidelines no weight and therefore failed to properly
consider the § 3553(a) factors. In support of this proposition,
Door points to the district court’s expressions of frustration
with the categorical approach and statement that the
“guidelines are a guide, unless they are not.”
We disagree. It is well settled that the district court “may
not presume that the Guidelines range is reasonable . . . . Nor
should the Guidelines factor be given more or less weight
than any other.” Carty, 520 F.3d at 991. Rather, the
sentencing court is “free to conclude that the applicable
Guidelines range gives too much or too little weight to one or
more factors, either as applied in a particular case or as a
matter of policy.” United States v. Christensen, 732 F.3d
1094, 1101 (9th Cir. 2013). Contrary to Door’s
28 UNITED STATES V. DOOR
characterization, the district court’s remarks indicate that it
looked to the Guidelines and determined that the range did
not adequately account for the seriousness of Door’s criminal
history and his various threats to witnesses. This was an
experienced judge, who was very familiar with Door’s case.
Moreover, the district court explained that its non-Guidelines
sentence was based on “[r]espect for the law, deterrence,
[and] protection for the community,” which are among the
additional sentencing factors specifically listed in § 3553(a).
See 18 U.S.C. § 3553(a)(2)(A)–(C). The district court did not
commit procedural error in concluding that the Guidelines did
not adequately reflect the nature and circumstances of Door’s
offense and the danger he posed to the community.
Door’s sentence is also substantively reasonable. In
reviewing the reasonableness of a sentence, we consider the
totality of the circumstances. Carty, 520 F.3d at 993. The
reviewing court must give “due deference to the district
court’s decision that the § 3553(a) factors, on the whole,
justify the extent of the variance. ” Gall, 552 U.S. at 51.
Although a sentence outside the Guidelines does not carry a
presumption of unreasonableness, “the greater the variance,
the more persuasive the justification will likely be because
other values reflected in § 3553(a) . . . may figure more
heavily in the balance.” Carty, 520 F.3d at 992. This does
not, however, mean that the district court must “tick off each
of the § 3553(a) factors to show it has considered them.” Id.
It is undisputed that in imposing a 276-month sentence,
the district court deviated significantly from the guideline
range of 140–175 months. The district court explained that
it had, “on two prior occasions, said that I consider Mr. Door
to perhaps be the most dangerous defendant I have had in
18 or 19 years. . . . Mr. Door is, was, and will be in my mind
UNITED STATES V. DOOR 29
an extremely dangerous person. He did everything and then
more to justify his sentence.” The record fully supports the
district court’s determination that Door was an extremely
dangerous person who had shown an unwillingness to change.
There is no basis upon which to find Door’s sentence
substantively unreasonable.
V. CONCLUSION
Although, in light of Rehaif, the district court committed
plain error by failing to require the government to prove
Door’s knowledge of his prohibited statuses and omitting the
knowledge element from the indictment and jury instructions,
Door cannot show that these errors affected the fairness,
integrity, or public reputation of the judicial proceedings.
With respect to Door’s sentence, the district court did not
clearly err in finding that the pre-trial threats Door made
could reasonably be construed as an attempt to obstruct
justice. Nor is there a basis upon which to find Door’s
sentence either procedurally or substantively unreasonable.
We therefore affirm the convictions and sentence.
AFFIRMED.