United States v. Robbie Catchings ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50005
Plaintiff-Appellee, D.C. No.
2:17-cr-00692-SVW-1
v.
ROBBIE CATCHINGS, AKA Robert MEMORANDUM*
Brown, AKA Robbie Catching,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted December 8, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Robbie Catchings appeals from his jury conviction and forty-six month
sentence for being a felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Because the parties are familiar with the
*
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).
facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742. We affirm in part, vacate in part, and remand.
1. Catchings argues his conviction must be overturned under Rehaif v.
United States, 139 S. Ct. 2191, 2194 (2019), which requires that the Government
“show that the defendant knew he possessed a firearm and also that he knew he
had the relevant status [under 18 U.S.C. § 922(g)] when he possessed it” to convict
a person for violating 18 U.S.C. § 924(a). It is undisputed that the jury was not
instructed that it had to find, and the Government was not required to prove, that
Catchings knew his prohibited status as a felon at the time of the offense. “A jury
instruction that omits an element of the offense is reviewed for plain error if the
defendant failed to object in the district court.” United States v. Johnson, 979 F.3d
632, 636 (9th Cir. 2020); Greer v. United States, 141 S. Ct. 2090, 2096-97 (2021)
(applying plain error review to an unpreserved Rehaif claim).
The Supreme Court’s recent decision in Greer forecloses relief because
Catchings did not meet the requirements of plain error review. To establish plain
error, the defendant “must show that (1) there was an error, (2) the error is clear or
obvious, (3) the error affected his substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
Johnson, 979 F.3d at 636. The third prong requires that Catchings show “a
reasonable probability that, but for the error, the outcome of the proceeding would
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have been different.” Greer, 141 S. Ct. at 2096 (citation omitted). Because
Catchings did not make any “argument or representation on appeal that he would
have presented evidence at trial that he did not in fact know he was a felon,” id. at
2100, Catchings failed to show a reasonable probability that the jury decision
would be different and therefore he is not entitled to relief.
To the extent that Catchings did not waive his claim about the deficiency of
the indictment, he does not show failure to include knowledge-of-status in the
indictment was plain error. Knowledge-of-status is not an “[i]mplied, necessary
element[] not present in the statutory language” of 18 U.S.C. § 922(g), United
States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (citation omitted), but rather
“the ordinary presumption in favor of scienter,” Rehaif, 139 S. Ct. at 2195. Failure
to include knowledge-of-status in the indictment does not require reversal because
it was a minor deficiency that did not prejudice Catchings, given his substantial
felony history, stipulation to his convictions at trial, and admission under oath of
his awareness of his felon status. See United States v. James, 980 F.2d 1314, 1316
(9th Cir. 1992).
2. Reviewing de novo the denial of Catchings’ motion for acquittal, we
hold that the Government presented sufficient evidence for a rational juror to find
beyond a reasonable doubt that Catchings knowingly possessed a firearm. See
United States v. Niebla-Torres, 847 F.3d 1049, 1054 (9th Cir. 2017).
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The possession element of 18 U.S.C. § 922(g) crimes may be established by
showing constructive possession, United States v. Carrasco, 257 F.3d 1045, 1049
(9th Cir. 2001), which requires demonstrating “a sufficient connection between”
Catchings and the weapon “to support the inference that [he] exercised dominion
and control” over the gun, United States v. Terry, 911 F.2d 272, 278 (9th Cir.
1990) (citations omitted). The Government presented evidence showing that
Catchings’ DNA was on the gun, the weapon was wedged into the seat Catchings
occupied in the truck he was driving, and the arresting officer saw Catchings move
in a way that suggested he put something behind his back. Together, this evidence
establishes a “sufficient connection” between Catchings and the weapon. See id.Viewing the evidence in the light most favorable to the Government, Niebla-
Torres, 847 F.3d at 1054, a jury could reasonably infer that Catchings exercised
dominion and control over the gun and thus knowingly possessed a firearm in
violation of §§ 922(g)(1) and 924(a)(2).
3. Finally, the parties correctly agree that one condition of supervised
release imposed by the district court, Standard Condition 14, is unconstitutional.
United States v. Magdirila, 962 F.3d 1152, 1158-59 (9th Cir. 2020). We therefore
vacate and remand Standard Condition 14 and “leave it for the district court on
remand to craft a [proper] supervised release condition.” Id. at 1159.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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