United States v. Justin Sholley-Gonzalez

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2914
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Justin Dwight Sholley-Gonzalez
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: December 18, 2020
Filed: May 10, 2021
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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SMITH, Chief Judge.
An Iowa state court issued a protection order against Justin Dwight Sholley-
Gonzalez. In issuing the order, the court did not expressly designate the protected
person as an “intimate partner” under 18 U.S.C. § 922(g)(8), though the protected
person was in fact an intimate partner. Under § 922(g)(8), a person subject to a court
order protecting an intimate partner is restricted from possessing firearms and
ammunition.
Sholley-Gonzalez attempted to purchase a firearm. While doing so, he failed
to indicate on a federal firearm-transaction form that he was subject to a court order
protecting an intimate partner. Law enforcement believed his omission violated 18
U.S.C. § 922(a)(6). As a result, law enforcement obtained and executed a search
warrant for Sholley-Gonzalez’s house. The search revealed shotgun ammunition.
Sholley-Gonzalez was charged and indicted under §§ 922(g)(8) and 922(a)(6).
He moved to dismiss the indictment for failure to state an offense because the
protection order against him did not affirmatively indicate it protected an intimate
partner. The district court denied his motion and convicted him on both counts after
a bench trial. After his conviction but before sentencing, Sholley-Gonzalez moved for
acquittal or a new trial based on the Supreme Court’s decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), which clarified that the government must prove that
the defendant had knowledge of his restricted status. Sholley-Gonzalez argued that
Rehaif invalidated his conviction because the government had not proved that he
knew that his status restricted his ability to possess firearms and ammunition under
§ 922(g). The district court denied his motion. At sentencing, Sholley-Gonzalez
argued that his sentence should be reduced pursuant to the sporting-use reduction in
§ 2K2.1(b)(2) of the United States Sentencing Guidelines. The district court declined
to apply the reduction.
Sholley-Gonzalez appealed. We affirm the district court’s decisions regarding
Sholley-Gonzalez’s motions but remand for resentencing as to district court’s
application of the sporting-use reduction.
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I. Background
In October 2017, an Iowa court issued a protection order that “restrained
[Sholley-Gonzalez] from committing any acts of abuse or threats of abuse” and “from
any contact with [S.O.].” Stipulation, Ex. 1, at 1, United States v. Sholley-Gonzalez,
No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-2. The first page of
the order form provided, “Warnings to Defendant,” in bolded font. Id. (emphasis
omitted). One of these three warnings stated, “Federal law provides penalties for
possessing, transporting, shipping, or receiving any firearm or ammunition (18 U.S.C.
§ 922(g)(8)).” Id. (emphasis omitted).
The second page of the order form included a list of items to be checkmarked
if applicable. The first section provided two mutually exclusive boxes to be checked,
based on the identity of the protected party. One box was to be checked if the
protected party was an “intimate partner” “as defined in 18 U.S.C. § 921(a)(32)
(‘“intimate partner” means, with respect to a person, the spouse of the person, a
former spouse of the person, an individual who is a parent of a child of the person,
and an individual who cohabitates or has cohabited with the person’).” Id. at 2. The
other box was to be checked if “the relationship status of the defendant and protected
party is other than the federal ‘Intimate Partner’ definition.” Id. Neither box was
checked.
Further, if the court had checked the “intimate partner” box, the form explained
that “the court must check box 5, prohibiting the defendant from possessing
firearms.” Id. (emphasis omitted). Box 5 read, “If checked, the Defendant shall not
possess firearms while this order is in effect as a condition of release. . . . The
defendant is advised that the issuance of this protective order may also affect the right
to possess or acquire a firearm or ammunition under federal law.” Id. The court did
not check box 5.
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Although the order form did not indicate the status of S.O. and Sholley-
Gonzalez’s relationship, their relationship met the federal “intimate partner”
definition during the relevant period.
In February 2018, Sholley-Gonzalez went to a Walmart store and attempted to
purchase a firearm. An employee said that Sholley-Gonzalez “asked for the ‘cheapest
gun’ Walmart sold,” so the employee showed him three 12-gauge shotguns. Final
Presentence Investigation Report 6, United States v. Sholley-Gonzalez, No. 4:18-cr-
00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 76. The Walmart employee said that
Sholley-Gonzalez attempted to purchase a shotgun, and Sholley-Gonzalez stipulated
to that fact as well. As part of the purchase process, Sholley-Gonzalez filled out a
mandatory firearm-transaction form. One of the questions on the form asked, “Are
you subject to a court order restraining you from harassing, stalking, or threatening
. . . an intimate partner . . . ?” Stipulation, Ex. 2, at 1, United States v. Sholley-
Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-3. Sholley-
Gonzalez answered, “No.” Id. He also purchased a BB gun for his daughter.
In April 2018, law enforcement conducted a warrant-authorized search of
Sholley-Gonzalez’s home and found 36 rounds of shotgun ammunition, including
.410-gauge rounds and 20-gauge rounds. They found no firearms. Relevant to this
appeal, Sholley-Gonzalez was indicted on one count of illegally possessing
ammunition, based on being subject to a court order protecting an intimate partner,
and one count of making a false statement during the purchase of a firearm, based on
his answer to the firearm-transaction form.
Sholley-Gonzalez moved to dismiss the indictment for failure to state an
offense. He claimed that he “was not subject to a restraining order of a nature
prohibiting his possession of firearms or ammunition” because the protection order
did not affirmatively identify S.O. as an intimate partner. Br. in Supp. of Mot. to
Dismiss at 2, United States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1
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(S.D. Iowa 2019), ECF No. 29-1 (emphasis omitted). The district court denied
Sholley-Gonzalez’s motion for two alternative reasons: (1) The indictment
sufficiently pleaded the required elements of the offenses because the sufficiency of
the indictment is determined by the face of the indictment, not the underlying
evidence; and (2) the protection-order omissions were not fatal to the indictment’s
sufficiency because § 922(g)(8) requires that the protected party be an intimate
partner, not that the court order identify the protected party as an intimate partner.
The case proceeded to a bench trial on stipulated facts, and the district court
convicted Sholley-Gonzalez on both counts. Before sentencing, Sholley-Gonzalez
moved for a judgment of acquittal or a new trial. Both requests were based on Rehaif.
Rehaif, decided after his conviction, explains that the government must prove that a
defendant knows his restricted status under § 922(g). 139 S. Ct. at 2200. The district
court denied Sholley-Gonzalez’s motion. It held that the Rehaif error was harmless
because Sholley-Gonzalez knowingly made the false statement that he was not
subject to a protection order protecting an intimate partner. Thus, the district court
explained that it had already determined Sholley-Gonzalez’s knowledge of his status
for the § 922(a)(6) conviction. Alternatively, the district court found that Sholley-
Gonzalez stipulated to facts that provided sufficient evidence to support the court’s
knowledge finding.
At sentencing, Sholley-Gonzalez argued that the district court should apply the
§ 2K2.1(b)(2) sporting-use reduction, which lowers a defendant’s offense level to six
if the defendant possessed all the firearms and ammunition connected to the firearm
offense solely for lawful sporting use. The district court received letters of support
for Sholley-Gonzalez from his daughter, girlfriend, cousin, mother, and previous
employer. Of those, two mentioned Sholley-Gonzalez’s love of hunting and time
spent shooting with his daughter. He also offered evidence that he received firearm-
hunting licenses on a regular basis from 2007 to 2014 and bow-hunting licenses for
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2019 and 2020. And he included pictures of him and his daughter hunting, fishing,
and using firearms for lawful sporting purposes.
Sholley-Gonzalez also testified at the sentencing hearing. He testified that he
is “an avid hunter” and has engaged in “target shoot[ing].” Sentencing Tr. 17, United
States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF
No. 96. He said he last owned a firearm in 2014 or 2015, though he still went bow
hunting, which was consistent with his hunting license records. He had also used
firearms in February 2018 for target shooting. When asked about the ammunition that
law enforcement found at his house, Sholley-Gonzalez replied that “[i]t was leftover
ammunition from previous hunting or target shooting.” Id. at 19. He said that he
“[n]ever” used the ammunition for any reason other than hunting and target shooting
and that he had been shooting with his daughter. Id. at 20–21. Further, he had never
been convicted or charged with an offense involving a firearm.
On cross-examination, the government’s questioning highlighted Sholley-
Gonzalez’s previous offenses. First, it elicited the conduct leading to the protection
order: Sholley-Gonzalez stalked S.O., posted nude photographs of her on social
media, and created a fake Craigslist profile of S.O. to send men to her house, and he
sent food delivery drivers and prostitutes to S.O.’s father’s house. Second, Sholley-
Gonzalez had pleaded guilty to harassing S.O. in 2017. Third, he had pleaded guilty
to assault in 2017. Fourth, Sholley-Gonzalez explained that he had pleaded guilty to
assaulting a police officer in 2014, but he asserted that he “provided false testimony”
and did not actually commit that crime. Id. at 32. The government provided no
evidence that Sholley-Gonzalez had possessed this ammunition for nonsporting
purposes or that he had ever possessed any firearm or ammunition for nonsporting
purposes.
The district court held that Sholley-Gonzalez did not meet his burden to show
that the sporting-use reduction applied. The court relied on the contradiction between
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Sholley-Gonzalez’s statement and the Walmart employee’s, Sholley-Gonzalez’s prior
offenses, and his lack of credibility. And it found that his love of hunting and fishing
had nothing to do with the purpose of the ammunition he possessed and the firearm
he attempted to possess and that his evidence was unpersuasive because it was self-
serving.
The district court concluded by stating that its decision did not turn on whether
Sholley-Gonzalez possessed the ammunition for nonsporting purposes or attempted
to purchase a firearm for nonsporting purposes. It noted that Sholley-Gonzalez did
one or the other for nonsporting purposes, so independently analyzing his conduct
would be fruitless, even if the parties had raised the issue. It stated:
Now, the question of whether or not the shotgun shells versus the
firearm, which was possessed for which purpose, the parties haven’t
broken that down in terms of whether or not there’s some argument that
one was possessed for a lawful sporting purpose and the other wasn’t.
Here the standard is that all ammunition and firearms have to be
possessed solely for lawful sporting purposes, and the court cannot
make that finding.
Id. at 41.
The district court calculated Sholley-Gonzalez’s offense level as 12 and his
criminal history category as VI. Thus, his Guidelines range was 30–37 months’
imprisonment, and the district court sentenced him to 30 months’ imprisonment. This
appeal followed.
II. Discussion
Sholley-Gonzalez seeks reversal, asserting three errors by the district court.
First, he avers that the indictment against him should have been dismissed because
it failed to state an offense under § 922(g). Second, he contends that, based on
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Rehaif, he should have been granted a judgment of acquittal or a new trial. Third, he
argues that § 2K2.1(b)(2)’s sporting-use reduction should have applied to his
sentencing calculation.
A. Failure to State an Offense
Sholley-Gonzalez mounts two arguments that the indictment failed to state an
offense. First, he argues that the protection order’s failure to affirmatively identify
S.O. as an intimate partner means it falls short of § 922(g)(8)’s requirements.
Second, he argues that the absence of a designation of S.O. as an intimate partner
violated his right to notice protected under the Constitution’s Due Process Clause.
We review the district court’s denial of a motion to dismiss an indictment for
failure to state an offense de novo. United States v. Flute, 929 F.3d 584, 587 (8th Cir.
2019). An indictment survives a motion to dismiss for failure to state an offense if
“the indictment contains a facially sufficient allegation.” United States v. Ferro, 252
F.3d 964, 968 (8th Cir. 2001). Sholley-Gonzalez urges us go beyond the indictment
and review the underlying protection order, but when courts go beyond the face of
the indictment, they are testing the sufficiency of the evidence, not whether the
indictment stated an offense. Id. However, challenges to the evidence’s “sufficiency
[are] tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure
29,” not by a “dismissal of an indictment on the basis of predictions as to what the
trial evidence will be.” Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 661
(3d Cir. 2000)). “[F]ederal criminal procedure does not ‘provide for a pre-trial
determination of sufficiency of the evidence.’” Id. (quoting United States v. Critzer,
951 F.2d 306, 307–08 (11th Cir. 1992)).
We have explained that
[a]n indictment is legally sufficient on its face if it contains all of the
essential elements of the offense charged, fairly informs the defendant
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of the charges against which he must defend, and alleges sufficient
information to allow a defendant to plead a conviction or acquittal as
a bar to a subsequent prosecution.
United States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012) (quoting United States
v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)).
1. Section 922(g)(8)’s Requirements
Here, the indictment is facially sufficient despite the protection order not
identifying S.O. as an intimate partner. Section 922(g)(8) simply does not require
that the court-order form identify the protected party as an intimate partner. Section
922(g)(8)(B) requires that the “court order . . . restrain[] such person from harassing,
stalking, or threatening an intimate partner.” The text demands only that the order
protect an intimate party in fact. It does not require that the court order “include[] a
finding” that the protected party is an intimate partner or “by its terms” identify the
protected party as an intimate partner, as it requires for certain findings in
§ 922(g)(8)(C). Section 922(g)(8)(C) requires the court order to
(i) include[] a finding that such person represents a credible threat to
the physical safety of such intimate partner . . . ;or
(ii) by its terms explicitly prohibit[] the use, attempted use, or
threatened use of physical force against such intimate partner . . . that
would reasonably be expected to cause bodily injury . . . .”
(Emphasis added). No similar language is included regarding an “intimate partner”
finding. Thus, the indictment need not include such an allegation either.
Looking to this indictment’s face, it pleaded the essential elements of a
§ 922(g)(8) offense: (1) Sholley-Gonzalez “was subject to a court order,” (2) the
order was “issued after a hearing of which he received actual notice, and at which
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he had an opportunity to participate,” (3) the order “restrain[ed] him from harassing,
stalking, or threatening an intimate partner,” (4) the order “by its terms explicitly
prohibited the use, attempted use or threatened use of physical force against such
intimate partner,” and (5) Sholley-Gonzalez “knowingly possess[ed] . . . a firearm”
that was “in and affecting interstate commerce” and “knowingly possess[ed]
ammunition” that was “shipped and transported in interstate commerce.” Indictment
at 1, 4, United States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D.
Iowa 2019), ECF No. 1.
2. Due Process
Sholley-Gonzalez also argues that the indictment failed to state an offense
because the order form did not affirmatively identify that S.O. was an intimate
partner, thus denying him due process. We disagree.
Sholley-Gonzalez relies on Lambert v. California for the proposition that
when “[a] law . . . punishe[s] conduct which would not be blameworthy in the
average member of the community,” due process requires “actual knowledge . . . or
proof of the probability of such knowledge and subsequent failure to comply
. . . before a conviction . . . can stand.” 355 U.S. 225, 229 (1957); Appellant’s Br. at
19. But we have already addressed Lambert’s interplay with § 922(g)(8) in a similar
case. In United States v. Miller, Miller claimed that the face of the restraining order
against him provided insufficient notice that he was restricted from possessing
firearms. 646 F.3d 1128, 1131 (8th Cir. 2011). Specifically, the district court did not
check a box on the order form indicating that Miller would be restricted from
possessing firearms, though it did identify the protected party as an intimate partner.
Id. at 1130. Miller also claimed that the state court had told him he would not be
restricted from possessing firearms. Id. at 1131.
In Miller, we held that “although Miller’s conduct [i.e., possessing a firearm]
may not be ‘per se blameworthy’” for an average citizen, he nevertheless had
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sufficient knowledge that he would be restricted from possessing firearms because
“possession of a firearm, especially by someone subject to a restraining order, ‘is . . .
a highly regulated activity, and everyone knows it.’” Id. at 1132 (quoting United
States v. Hutzell, 217 F.3d 966, 968–69 (8th Cir. 2000)). We also found several other
factors that cut against Miller: (1) the restraining order’s front page “warned that
federal law restricts the possession of firearms by individuals subject to restraining
orders,” (2) the next page indicated the protected party was an intimate partner, and
(3) the order “restrained him from threatening, assaulting, stalking, molesting,
attacking, harassing, or otherwise abusing [the protected party], g[iving] Miller
reason to be on notice that his conduct was subject to increased government
scrutiny.” Id. at 1131–33.
Most of the factors that gave Miller sufficient notice are present here. First,
possession of firearms and ammunition, especially by people with a restraining order
against them, is highly regulated and “everyone knows it.” Id. at 1132. Second, the
first page of the protection order against Sholley-Gonzalez provided a “Warning[]
to Defendants” that “[f]ederal law provides penalties for possessing, transporting,
shipping, or receiving any firearm or ammunition (18 U.S.C. § 922(g)(8)).”
Stipulation, Ex. 1, at 1 (emphasis omitted). And third, the order restrained him “from
committing any acts of abuse or threats of abuse” and “from any contact with
[S.O.],” id., giving him “notice that his conduct was subject to increased government
scrutiny.” Miller, 646 F.3d at 1133. Further, the order form provided the federal
definition of “intimate partner” and explained that when an intimate partner was the
subject of the order, the defendant’s right to possess firearms and ammunition was
restricted. Stipulation, Ex. 1, at 2. Sholley-Gonzalez could have easily read the
definition on the order form and known that S.O. was an intimate partner and that he
was restricted from firearm and ammunition possession.
As in Miller, Sholley-Gonzalez had sufficient warning that the state court’s
protective order limited his ability to possess firearms.
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B. Rehaif
“We review the denial of a motion for judgment of acquittal de novo.” United
States v. Sainz Navarrete, 955 F.3d 713, 718 (8th Cir. 2020). We review the “facts
in the light most favorable to the verdict” and will affirm if “a reasonable juror could
have found the defendant guilty of the charged conduct beyond a reasonable doubt.”
Id. (quoting United States v. Clark, 668 F.3d 568, 573 (8th Cir. 2012)). And “[w]e
review the denial of a motion for a new trial for an abuse of discretion,” reversing
the district court’s decision “only if the evidence weighs so heavily against the
verdict that a miscarriage of justice may have occurred.” Id. (quoting United States
v. Anwar, 880 F.3d 958, 969 (8th Cir. 2018)).
In Rehaif, the Supreme Court held “that in a prosecution under 18 U.S.C.
§ 922(g) . . . , the Government must prove . . . that [the defendant] knew he belonged
to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at
2200. The Court, however, did not express “what precisely the Government must
prove to establish a defendant’s knowledge of status in respect to other § 922(g)
provisions not at issue [in the case],” such as § 922(g)(8). Id. It did explain that the
knowledge-of-status element will not usually be “burdensome” to prove because
“knowledge can be inferred from circumstantial evidence.” Id. at 2198 (quoting
Staples v. United States, 511 U.S. 600, 615 n.11 (1994)).
Here, the district court made no finding under § 922(g)(8) as to whether
Sholley-Gonzalez knew his status. Although Rehaif had not been decided when the
district court convicted Sholley-Gonzalez, it was error to not make a finding about
Sholley-Gonzalez’s knowledge of status. Cf. United States v. Jawher, 950 F.3d 576,
579 (8th Cir. 2020) (explaining that failure to include the knowledge-of-status
element is an “error [that] is now plain under Rehaif”). But this Rehaif error was
harmless. See United States v. Mueller, 661 F.3d 338, 347 (8th Cir. 2011) (“The
harmless-error analysis applies ‘to cases involving improper . . . instructions on a
single element of the offense.” (quoting Neder v. United States, 527 U.S. 1, 11
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(1999))). An error is harmless when the evidence supporting the conviction “is so
overwhelming that no rational [fact finder] could find otherwise.” United States v.
Beckham, 917 F.3d 1059, 1064 (8th Cir. 2019).
Sholley-Gonzalez stipulated to certain facts in this case. Those stipulated facts
overwhelmingly show that a rational fact finder would find that Sholley-Gonzalez
met the knowledge-of-status element. Specifically, he stipulated that (1) he had
“received actual notice of the protective order hearing along with the opportunity to
participate in the hearing,” (2) he was subject to a court order protecting S.O., (3)
S.O. “was, in fact, an intimate partner of [Sholley-Gonzalez],” (4) the court order
prohibited him from “using, or attempting to use, or threatening to use physical force
against [S.O.],” and (5) on the firearm-transaction form he answered that he was not
subject to a court order protecting an intimate partner. Stipulation 1–2, United States
v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-
1. With this knowledge, he would certainly have known that S.O. was his “spouse,”
“former spouse,” “an individual who is a parent of [his] child,” or “an individual who
cohabitates or has cohabitated with [him].” 18 U.S.C. § 921(a)(32).
A rational fact finder would only have inferred that Sholley-Gonzalez had
knowledge of his status under § 922(g)(8) beyond a reasonable doubt because he was
aware of the facts that met the statutory requirements for the court order. In other
words, he knew the facts that made him part of “the relevant category of persons
barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. He need not have
known that he was barred from possessing firearms or ammunition because of those
facts, only that “he had the relevant status when he possessed it”—i.e., that he was
subject to a qualifying court order. Id. at 2194; cf. id. at 2198 (explaining that
“ignorance” about “the existence of a statute proscribing [certain] conduct” is no
excuse, so long as “a defendant has the requisite mental state in respect to the
elements of the crime” (citations omitted)). In addition, the federal definition for
intimate partner was on the face of the court order.
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Our conclusion is further supported by the district court convicting Sholley-
Gonzalez of knowingly making a false statement under § 922(a)(6). To convict
Sholley-Gonzalez under § 922(a)(6), the district court had to have found that
Sholley-Gonzalez “knowingly [made] a[] false or fictitious . . . statement.” (Emphasis
added). And to knowingly make a false statement about his status, Sholley-Gonzalez
must have had knowledge of his status. In short, a rational fact finder has already
found that Sholley-Gonzalez had knowledge of his status when he made the false
statement. Cf. United States v. Dvorak, 617 F.3d 1017, 1026 (8th Cir. 2010) (“Here,
there is no need to guess as to whether a rational jury would have found [the
defendant] guilty if the proper instructions were given because a rational jury did
find that he met the additional element of the statute [in its answers to a special
verdict form].”).
The dissent cites United States v. Davies, 942 F.3d 871 (8th Cir. 2019), as
undermining our conclusion. But Davies does the opposite. In Davies, Davies
pleaded guilty to two Iowa felonies. 942 F.3d at 872. “After he pleaded guilty but
before his sentencing,” Davies illegally possessed firearms under 18 U.S.C.
§ 922(g)(1). Id. Section 922(g)(1) prohibits a person from possessing a firearm if
they have “been convicted in any court of[] a crime punishable by imprisonment for
a term exceeding one year.” Id. (alteration in original) (emphasis added) (quoting
18 U.S.C. § 922(g)(1)). At trial, Davies stipulated that he knowingly possessed the
firearms, id., and that the Iowa felonies he pleaded to were “crimes ‘punishable by
a term of imprisonment greater than one year.’” Id. at 874. We explained that these
“facts indicate[d] he knew the offenses to which he was pleading guilty would
ultimately qualify him to be charged [under § 922(g)(1)], but there [wa]s no evidence
that he knew when he possessed the firearms . . . , before his sentencing, that he had
been convicted of those crimes.” Id. (emphasis added). In short, the Davies’s factual
stipulations left ambiguity about whether he knew he had been convicted of a
qualifying crime—a requirement for a defendant to fit into the § 922(g)(1) category.
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Sholley-Gonzalez, on the other hand, stipulated to all the facts that fit him into
the § 922(g)(8) category, and the district court found that Sholley-Gonzalez knew
those facts. He stipulated that he had notice and opportunity to participate in a
hearing about the court order. See § 922(g)(8)(A). He stipulated that the court order
protected an intimate partner. See § 922(g)(8)(B). And he stipulated that the court
order prohibited him from using, attempting to use, or threatening to use physical
force against an intimate partner. See § 922(g)(8)(C)(ii). Then, the district court
found that Sholley-Gonzalez knew these stipulated facts when he attempted to
purchase a firearm at Walmart, violating § 922(a)(6).
Because the district court found that Sholley-Gonzalez knew the stipulated
facts that fit him into the § 922(g)(8) category for purposes of the § 922(a)(6)
violation, Sholley-Gonzalez also knew those facts for purposes of the § 922(g)(8)
conviction. It would defy reason for the district court to have found that Sholley-
Gonzalez simultaneously knew and did not know the facts that fit him into the §
922(g)(8) category.
Finally, Sholley-Gonzalez asserts that “knowledge of his prohibited status is
inextricably intertwined with the question of whether § 922(g)(8) requires the
restraining order to state by its own terms that the protected party and the restrained
parties are intimate partners.” Appellant’s Br. at 23. He contends that this, in turn,
implicates § 922(a)(6) “because . . . then his statement denying being a party to such
an order was truthful, and he cannot be said to have knowingly made a false
statement.” Id. at 23–24. But as explained above, this argument is unavailing;
§ 922(g)(8) does not require the restraining order to state that the restrained party
and the protected party are intimate partners.
Thus, we find that the district court’s Rehaif error was harmless.
C. Sporting-Use Reduction
In his last argument, Sholley-Gonzalez contends that the district court erred
because its § 2K2.1(b)(2) ruling was partially premised on his attempted purchase
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of a firearm. He did not raise this below, so we review for plain error. United States
v. Godfrey, 863 F.3d 1088, 1095 (8th Cir. 2017). To show plain error, Sholley-
Gonzalez “must show that there was an error, the error is clear or obvious under
current law, the error affected the party’s substantial rights, and the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.(quoting United States v. Delgrosso, 852 F.3d 821, 828 (8th Cir. 2017)).
Section 2K2.1(b)(2) would lower Sholley-Gonzalez’s offense level to six if
he “possessed all ammunition and firearms solely for lawful sporting purposes.” To
determine if the sporting-use reduction applies, courts review the “[r]elevant
surrounding circumstances,” such as “the number and type of firearms, the amount
and type of ammunition, the location and circumstances of possession and actual use,
the nature of the defendant’s criminal history (e.g., prior convictions for offenses
involving firearms), and the extent to which possession was restricted by local law.”
§ 2K2.1(b)(2) cmt. n.6; see also United States v. Moore, 860 F.3d 1076, 1078 (8th
Cir. 2017). Sholley-Gonzalez bears the burden of proving § 2K2.1(b)(2)’s reduction
applies to him. United States v. Bertling, 510 F.3d 804, 811 (8th Cir. 2007).
Our first task in reviewing a sentence is to determine if there was significant
procedural error. United States v. Zeaiter, 891 F.3d 1114, 1121 (8th Cir. 2018)
(quoting United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008)). If there was
significant procedural error, we must reverse and remand. We have explained that
“failing to calculate (or improperly calculating) the Guidelines range” or “selecting
a sentence based on clearly erroneous facts” is a procedural error. Godfrey, 863 F.3d
at 1094–95 (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)).
The nub of Sholley-Gonzalez’s argument is that the district court misinterpreted
§ 2K2.1(b)(2) when it treated his attempted purchase of a firearm as actual
possession, causing the district court to calculate his offense level as twelve instead
of six, as the sporting-use reduction requires.
The district court began by properly identifying the § 2K2.1(b)(2) analysis:
“The defense bears the burden of establishing that the defendant possessed all
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ammunition and firearms solely for lawful sporting purposes or collection and did
not unlawfully discharge or otherwise unlawfully use such a firearm or ammunition.”
Sentencing Tr. 38 (emphasis added). Immediately after this, however, the district
court stated that its analysis included whether Sholley-Gonzalez’s “intended . . .
purchase [of] the firearm” was “solely for lawful sporting purposes.” Id. (emphasis
added). And the district court concluded its § 2K2.1(b)(2) analysis by explaining that
it made no distinction between Sholley-Gonzalez’s possession of the ammunition
and attempted purchase of a firearm. It stated:
Now, the question of whether or not the shotgun shells versus the
firearm, which was possessed for which purpose, the parties haven’t
broken that down in terms of whether or not there’s some argument that
one was possessed for a lawful sporting purpose and the other wasn’t.
Here the standard is that all ammunition and firearms have to be
possessed solely for lawful sporting purposes, and the court cannot
make that finding.
Id. at 41. Thus, under the district court’s analysis, Sholley-Gonzalez may have
possessed the ammunition solely for lawful sporting purposes. And it may have been
that only Sholley-Gonzalez’s attempted purchase of a firearm was for a nonsporting
purpose.
But § 2K2.1(b)(2)’s text only considers the firearms or ammunition the
defendant actually “possessed,” not those the defendant “attempted” or “intended”
to possess. Nor does § 2K2.1(b)(2)’s commentary note include attempted
possessions as relevant to the sporting-use reduction’s application.1 This stands in
1
If the United States Sentencing Commission had wished to include attempted
possession along with actual possession under § 2K2.1(b)(2)’s analysis, it could have
done so. Cf. United States v. Abumayyaleh, 530 F.3d 641, 650 (8th Cir. 2008)
(explaining that, because “we are bound by the plain text of the guidelines,” a
Guidelines enhancement that applied “[i]f any firearm . . . was stolen” only applied
if the firearm was “actually stolen” and not “if the offender intended to purchase
stolen firearms” that were “not actually stolen” (alterations in original) (quoting
U.S.S.G. § 2K2.1(b)(4)).
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contrast to more permissive language like that used in U.S.S.G. § 2K2.1(b)(1), which
increases a defendant’s offense level “[i]f the offense involved three or more
firearms.” (Emphasis added).
Because § 2K2.1(b)(2) does not contemplate attempted firearm purchases, the
district court erred by including Sholley-Gonzalez’s attempted purchase in its
analysis. We have not previously addressed this specific issue, but § 2K2.1(b)(2)’s
text is clear—actual, not attempted, possession should be analyzed. We have
explained that
[t]here is ultimately, however, a limit to what the district court can do,
even under plain error review, and, for example, in the statutory
construction context, it is possible that the construction of the statute
proffered by the district court departs so far from the text that it is
clearly incorrect as a matter of law.
United States v. Lachowski, 405 F.3d 696, 698–99 (8th Cir. 2005). This error was
plain.
Sholley-Gonzalez must also show that the error affected his substantial rights.
“An error affects substantial rights if there is a reasonable probability, based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” United States v. Edmonds, 920 F.3d 1212, 1214 (8th Cir. 2019)
(quotations omitted). Looking only at the ammunition Sholley-Gonzalez possessed,
not to the firearm he attempted to purchase, there is a reasonable probability the
sporting-use reduction would apply.
Because there is a reasonable probability that the sporting-use reduction would
have applied to Sholley-Gonzalez’s offense-level calculation, he has shown plain
error. The district court calculated the suggested Guidelines range as 30–37 months’
imprisonment. Applying the sporting-use reduction, along with lowering the offense
level for acceptance of responsibility, the suggested range for Sholley-Gonzalez
would have been 6–12 months’ imprisonment. This is well below the sentence
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imposed. Sholley-Gonzalez “need not make a further showing of prejudice beyond
the fact that the erroneous guidelines range set the wrong framework for the
sentencing proceedings.” United States v. Mulverhill, 833 F.3d 925, 930 (8th Cir.
2016) (quotations omitted). Finally, miscalculating the base Guidelines range affects
the fairness, integrity, and reputation of the courts. We thus remand for resentencing.
III. Conclusion
The district court correctly determined that the indictment against Sholley-
Gonzalez was facially sufficient and that Rehaif did not help Sholley-Gonzalez. But
it committed plain error when analyzing the sporting-use reduction. Accordingly, we
remand for resentencing.
LOKEN, Circuit Judge, dissenting in part.
I respectfully dissent from Part II.B. of the court’s opinion. I conclude the
district court committed plain error under Rehaif v. United States, 139 S. Ct. 2191(2019), that was not harmless beyond a reasonable doubt and therefore Justin
Sholley-Gonzalez deserves a new trial. I agree the district court erred in denying
Sholley-Gonzalez a sporting purposes sentencing reduction, see USSG
§ 2K2.1(b)(2); I would remand for resentencing with instructions to apply the
reduction.2
I.
The Supreme Court held in Rehaif that, in a § 922(g) prosecution, “the
Government must prove both that the defendant knew he possessed [ammunition]
and that he knew he belonged to the relevant category of persons barred from
possessing [ammunition].” 139 S. Ct. at 2200. The Court did not prescribe “what
precisely the Government must prove to establish a defendant’s knowledge of status”
2
I agree the indictment stated a § 922(g)(8) offense and join Part II.A.(1) of the
opinion. I would not reach the due process issues discussed in Part II.A.(2). It will
not be an issue in future § 922(g)(8) prosecutions governed by Rehaif.
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regarding § 922(g) provisions not at issue in Rehaif, including § 922(g)(8). Id. At
a minimum, in this § 922(g)(8) prosecution, the government must prove that Sholley-
Gonzalez “knew he belonged to the relevant category of persons,” that is, persons
“subject to a court order that restrains [him] from harassing, stalking, or threatening
an intimate partner.” 18 U.S.C. § 922(g)(8)(B).
In determining whether the plain Rehaif error was harmless, in my view the
key fact is that the Iowa state court protection order issued against Sholley-Gonzalez
did not have a check mark in two boxes designed to warn the person being restrained
that the order would affect his right to possess firearms and ammunition under
federal law -- the box designating S.O. as his “intimate partner,” and the separate box
stating that he could not possess firearms or ammunition while the order was in
effect if the first box was checked. This made the order materially different than the
order in United States v. Miller, a pre-Rehaif case on which the court relies. Though
both cases involved the same form of Iowa protection order, in Miller the box stating
that it applied to an intimate partner was checked. 646 F.3d 1128, 1130-33 (8th Cir.
2011).
Sholley-Gonzalez’s pre-Rehaif trial was conducted on stipulated facts. He
stipulated that he was subject to a court order issued after notice and hearing that
protected S.O., and that she was in fact his intimate partner. Of course, had the trial
taken place when Rehaif was governing law, so that knowledge of status was an
essential element of the offense, Sholley-Gonzalez might not have entered into the
stipulation. However, given the warnings in the order defining the federal definition
of intimate partner and explaining the order’s possible impact on the restrained
party’s lawful possession of firearms under federal law, these facts could not
reasonably have been denied.
However, these stipulated facts did not establish that Sholley-Gonzalez knew
he was subject to a court order that put him in the § 922(g)(8) category. With the
boxes putting a restrained person in that status unchecked, Sholley-Gonzalez might
have believed that the state court did not conclude S.O. was his intimate partner, or
did not intend to subject him, a hunting and target shooting enthusiast, to this
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burdensome federal law restraint. Unlikely, perhaps, but no more unlikely than the
circumstances in United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019), where
we reversed a felon-in-possession conviction for plain error under Rehaif because
the defendant might not have known he was a convicted felon when he had not been
sentenced at the time he committed the felon-in-possession offense. Sholley-
Gonzalez has never been convicted or charged with an offense involving firearms.
The court reasons that, because the district court found that Sholley-Gonzalez
“knowingly ma[de] a false statement about his status” when he answered the Wal-
Mart form, it necessarily found he had knowledge of status. Infra p. 13-14. This
begs the essential Rehaif question. Knowledge that he was under an order protecting
a person who was in fact his intimate partner is not necessarily knowledge the state
court issued an order that put him in the § 922(g)(8) category under federal law when
the order did not check the box that said so. A reasonable fact finder could find
Sholley-Gonzalez guilty of violating 18 U.S.C. § 922(a)(6) but not § 922(g)(8).
Indeed, at a new trial where fewer facts are stipulated because his mens rea is
properly in focus, both acts could be “innocent mistake[s]” evincing a “lack of intent
needed to make his behavior wrongful.” Rehaif, 139 S. Ct. at 2197. In that case, he
could be found guilty of neither offense.3
I agree with the court that a rational fact finder could find on these facts that
Sholley-Gonzalez had knowledge of his status under § 922(g)(8). But I disagree that
the evidence was “so overwhelming that no rational [fact finder] could find
otherwise.” United States v. Beckham, 917 F.3d 1059, 1064 (8th Cir. 2019). I
conclude there is a reasonable probability the outcome of Sholley-Gonzalez’s trial
would have been different because the government did not prove this element of the
§ 922(g)(8) offense -- that Sholley-Gonzalez knew he was “subject to a court order
that . . . restrains [him] from harassing, stalking, or threatening an intimate partner.”
See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018) (standard for
plain error relief). Weighing the totality of these unusual circumstances, I conclude
3
The PSR recited that Sholley-Gonzalez checked “no” on the Wal-Mart firearm
application form because he believed S.O. had dropped the protection order.
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this is the rare case, like Davies and Rehaif itself, where Rehaif’s significant change
in the law warrants a new trial.
II.
I will comment briefly on the sporting purposes issue. As the court notes, the
defendant must prove by a preponderance of the evidence that he qualifies for the
§ 2K2.1(b)(2) reduction. United States v. Massey, 462 F.3d 843, 845 (8th Cir.
2006). At sentencing, Sholley-Gonzalez presented substantial evidence that he
possessed the ammunition solely for lawful sporting purposes. He testified that he
enjoys hunting and target shooting, and had engaged in the latter with his daughter
as late as February 2018. He also testified that the 20-gauge and .410 shotgun shells
found at his home were left over from previous hunting and target shooting outings,
and that he only used the ammunition for those purposes. He introduced past
hunting and fishing licenses, letters from friends and family attesting to his
participation in sporting activities, and pictures of him and his daughter engaging in
hunting and shooting. He testified that he went to Wal-Mart looking for a .22-
caliber rifle for his daughter. When he asked for “the cheapest gun,” the clerk
showed Sholley-Gonzalez three 12-gauge shotguns, guns consistent with hunting
and target shooting and not designed for the 20-gauge and .410 shotgun shells in his
home that are the basis for his § 922(g)(8) conviction.
The government failed to present any evidence that Sholley-Gonzalez
possessed the ammunition for other than lawful sporting purposes. Nor did the
government even probe that issue. Rather, on cross-examination, the government
questioned Sholley-Gonzalez about his trip to Wal-Mart, his prior drug use, and his
harassment of S.O and her family. When Sholley-Gonzalez objected, the
government responded that it was pursuing “line[s] of questioning” to probe “what
his intent was with those firearms” the clerk had shown him. The district court
overruled Sholley-Gonzalez’s relevance objection because the focus was on “other
potential uses of the firearm.” But Sholley-Gonzalez never possessed the shotguns
the Wal-Mart clerk displayed.
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In denying the sporting purposes reduction, the district court did not consider
the evidence that Sholley-Gonzalez possessed the ammunition found in his home
solely for lawful sporting purposes, other than to observe that he had not had a valid
hunting license since 2014.4 Instead, the court denied the reduction based primarily
on his attempt to purchase a firearm at Wal-Mart, and the facts underlying the
issuance of the state court protection order, which did not involve the use of a
firearm:
[T]he context of this defendant cannot be overlooked in looking at the
possession of a firearm . . . . The evidence that’s been presented to
show that this was solely for hunting purposes is not persuasive.
The fact that he was an avid fisherman or an avid hunter bears to no
extent on the purposes for these firearms. The fact that he had
admittedly engaged in the harassing conduct and that involving [sic] the
victim and her father undermines the arguments in terms of the fact that
there were no other purposes that could have been used with this
firearm.
Now, the question of whether or not the shotgun shells versus the
firearm, which was possessed for which purpose, the parties haven’t
broken that down in terms of whether or not there’s some argument that
one was possessed for a lawful sporting purpose and the other wasn’t.
Here the standard is that all ammunition and firearms have to be
possessed solely for lawful sporting purposes.
(Emphases added).
I conclude both the government and the district court focused on irrelevant
facts. It was error to focus on Sholley-Gonzalez’s attempt to purchase a shotgun at
4
Sholley-Gonzalez testified that the ammunition found at his home was left
over from previous outings. Of course a person does not need a hunting license to
engage in target shooting.
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Wal-Mart. He was not convicted of that conduct.5 True, USSG § 2K1.2(b)(2) refers
to whether the defendant “possessed all ammunition and firearms solely for lawful
sporting purposes or collection.” But Application Note 6 refers only to actual
possession and use. The shotguns were never possessed, and Sholley-Gonzalez was
convicted of possessing ammunition entirely unconnected to his shopping at Wal-
Mart. Thus, the trip to Wal-Mart was not conduct relevant to the sporting purposes
reduction; it did not “occur[] during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” USSG § 1B1.3(a)(1). Viewing 12-gauge shotguns
at Wal-Mart while shopping for his daughter sheds no light on Sholley-Gonzalez’s
purposes for possessing ammunition of a completely different gauge or caliber.
The district court improperly applied the Guidelines when it considered
conduct that was irrelevant to the sporting purposes reduction. See United States v.
Lussier, 423 F.3d 838, 843 (8th Cir. 2005), cert. denied, 546 U.S. 1130 (2006)
(standard of review). Based on the relevant evidence at sentencing, this case is
strikingly similar to Massey, where we upheld the grant of a sporting purposes
reduction on facts that mirror much of the evidence Sholley-Gonzalez presented.
462 F.3d at 847. In both cases, the defendant had: (i) no prior convictions for
offenses involving firearms, (ii) evidence of hunting and fishing licenses and deer
tags, and (iii) letters from those who knew them attesting to their enthusiasm for
hunting. Id. at 846. Adding the fact that the loose array of 20-gauge and .410
shotgun shells found at Sholley-Gonzalez’s home are ammunition typically used for
target shooting and small game hunting, and the absence of contrary evidence from
the government, I conclude the “relevant surrounding circumstances” point to him
possessing the ammunition solely for lawful sporting purposes. See USSG
§ 2K2.1(b)(2) cmt. n.6. Given the total lack of evidence rebutting Sholley-
Gonzalez’s evidence of lawful sporting purposes for his ammunition possession, I
would remand with instructions to grant the reduction.
______________________________
5
Count 1 of the indictment charged Sholley-Gonzalez with unlawful possession
of the firearm he did not purchase at Wal-Mart. The government stipulated that if the
court found him guilty of unlawful possession of the ammunition, it would dismiss
Count 1 at sentencing.
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