United States v. Wallace Gilmore ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10270
Plaintiff-Appellee, D.C. No.
4:18-CR-00040 HSG
v.
WALLACE GILMORE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Junior, District Judge, Presiding
Submitted October 8, 2021**
San Francisco, California
Before: FRIEDLAND and HAWKINS, Circuit Judges, and MCSHANE,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
Wallace Gilmore appeals his conviction following a bench trial on the charge
of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). We
have jurisdiction under 28 U.S.C. § 1291 and affirm.
Gilmore’s first assignment of error is that his prior conviction for Possession
of Marijuana for Sale under section 11359 of the California Health and Safety Code
was no longer a predicate felony when he possessed a firearm. While California’s
Proposition 64 reclassified many marijuana offenses, individuals with prior felony
convictions, like Gilmore, needed to petition to have them reclassified as
misdemeanors. Cal. Health & Safety Code § 11361.8(e); People v. Rascon, 216 Cal.
Rptr. 3d. 385, 392–93 (Ct. App. 2017). Gilmore never petitioned to reclassify his
conviction until after his arrest with a firearm. Because California still considered
Gilmore a felon at the time of his arrest, his marijuana conviction still counted as a
predicate offense under 18 U.S.C. § 922(g). See United States v. Carr, 513 F.3d
1164, 1168 (9th Cir. 2008).
Gilmore’s next assignment of error is that under Rehaif v. United States, 139
S. Ct. 2191 (2019), the government failed to meet its burden of proving that Gilmore
was aware of his felony status at the time of his arrest with a firearm. But in Greer
v. United States, 141 S. Ct. 2090, 2096 (2021), the Court clarified that unpreserved
Rehaif claims—even in proceedings that took place prior to the Rehaif decision—
are reviewed under a plain-error standard. At his bench trial and again at his
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sentencing, Gilmore stipulated that when he was convicted of violating section
11359(b) of the California Health and Safety Code, it was classified as a felony
punishable by a term of imprisonment exceeding one year. Gilmore also
acknowledged at his change-of-plea hearing in 2009 that he was pleading guilty to
a felony. So, like the defendants in Greer, Gilmore cannot prove with “a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different.” Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles v. United States, 138
S. Ct. 1897, 1904–05 (2018); see also id. at 2098 (“[D]emonstrating prejudice under
Rehaif ‘will be difficult for most convicted felons for one simple reason: Convicted
felons typically know they’re convicted felons.’” (quoting United States v. Lavalais,
960 F.3d 180, 184 (5th Cir. 2020))).
AFFIRMED.
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