UNITED STATES v. JORDAN MCFEELY (2021)

United States Court of Appeals, Ninth Circuit.2021-07-06No. No. 16-10456

Summary · law.co

Holding. The court affirmed Jordan-McFeely's conviction and sentence, finding no jurisdictional defect from the indictment's omission of the knowledge element, no reasonable probability of a different plea outcome, proper application of sentence enhancements for both the drug and robbery convictions, and no substantive unreasonableness in the imposed sentence.

Devon Carl Jordan-McFeely pleaded guilty to being a felon in possession of firearms and appealed on multiple grounds. He challenged his conviction arguing that the indictment failed to allege he knowingly possessed the firearms while aware of his felon status, and that the trial court did not inform him during his guilty plea that the government had to prove this knowledge element as required by Rehaif v. United States. He also contested sentence enhancements based on prior state convictions for drug possession and robbery, and claimed his overall sentence was unreasonably harsh.

The appellate court rejected all of Jordan-McFeely's arguments. The court found that the indictment's omission of the knowledge requirement did not strip the trial court of authority to hear the case, and that Jordan-McFeely failed to demonstrate a reasonable probability he would have rejected his guilty plea had he been properly advised about the knowledge element—particularly since he admitted being a felon and knowing he could not possess firearms. The court upheld the drug trafficking enhancement, finding the prior ecstasy possession conviction qualified under federal law. It also sustained the crime-of-violence classification for the robbery conviction under the applicable 2015 Sentencing Guidelines, noting that Jordan-McFeely had waived reliance on amended 2016 guidelines. Finally, the court determined the within-guidelines sentence was not substantively unreasonable because the trial judge had carefully considered applicable factors.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether indictment's failure to allege knowledge of felon status deprived the court of jurisdiction
Whether trial court's failure to advise of the knowledge requirement under Rehaif constituted reversible error
Whether prior ecstasy possession conviction qualified as a drug trafficking offense for sentencing enhancement
Whether prior robbery conviction constituted a crime of violence under 2015 Sentencing Guidelines
Whether the imposed sentence was substantively unreasonable

Procedural posture

Jordan-McFeely appealed his guilty plea conviction and sentence for felon in possession of firearms, raising challenges to the indictment, jury instructions regarding mens rea, sentencing enhancements, and overall sentence reasonableness.

Authorities cited

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Opinion · public domain

MEMORANDUM **

Devon Carl Jordan-McFeely (Jordan-McFeely) appeals his conviction and sentence after pleading guilty to being a felon in possession of several firearms. Jordan-McFeely challenges his conviction on the bases that the indictment did not allege that he possessed firearms while knowing that he was a convicted felon and that the district court did not advise him during the change of plea proceedings that the government was required to prove that he had knowledge of his felon status when he possessed the firearms, as required by Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Jordan-McFeely further asserts that the district court erred in applying sentence enhancements premised on his prior state convictions for possession of a controlled substance and robbery, and that the sentence imposed was substantively unreasonable.

1. The indictments omission of the mens rea that Jordan-McFeely possessed the firearms with knowledge that he was a convicted felon did not deprive the district court of jurisdiction to adjudicate his case. See Rehaif, 139 S. Ct. at 2196 (clarifying that the term “knowingly” as utilized in 18 U.S.C. § 924(a)(2) does not “modif[y] the statutes jurisdictional element”); see also United States v. Arnt, 474 F.3d 1159, 1162 (9th Cir. 2007) (articulating that “defects in an indictment do not deprive a court of its power to adjudicate a case”) (citation omitted).

2. Although the district court did not advise Jordan-McFeely that the government was required to prove that he had knowledge of his felon status when he possessed the firearms, Jordan-McFeely failed to satisfy his “burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there [was] a reasonable probability that he would not have pled guilty.” Greer v. United States, ––– U.S. ––––, 141 S.Ct. 2090, 2097–98, 210 L.Ed.2d 121 (2021) (citation and internal quotations omitted). Jordan-McFeely does not contend that he actually lacked knowledge of his felon status when he possessed the firearms. Rather, he admitted that he was a felon and that he was “not permitted to possess or have control of a firearm.” See id. (explaining that “if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court proceedings would have been different”).

3. The district court correctly determined that Jordan-McFeelys prior conviction for possession of ecstasy in violation of Nevada Revised Statute (NRS) § 453.337 was a drug trafficking offense. See United States v. Figueroa-Beltran, 995 F.3d 724, 733-34 (9th Cir. 2021) (holding that, under NRS § 453.337, “possession of a specific controlled substance is an element of the crime,” and reviewing record of conviction to determine type of substance possessed by the defendant). Because ecstasy is designated “as a Schedule I controlled substance under the [Controlled Substances Act],” United States v. Forrester, 616 F.3d 929, 935 (9th Cir. 2010), the district court properly included Jordan-McFeelys conviction in calculating Jordan-McFeelys sentence. See Figueroa-Beltran, 995 F.3d at 733-34.

4. The district court did not err in determining that Jordan-McFeelys robbery conviction in violation of NRS § 200.380 was a crime of violence under the 2015 Sentencing Guidelines.

See United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (per curiam) (holding that “Nevada convictions for robbery ․ categorically qualify as crimes of violence” because “any conduct under [NRS] § 200.380 that did not satisfy the generic definition of robbery, such as threats to property, would satisfy the generic definition of extortion”); see also United States v. Edling, 895 F.3d 1153, 1157 (9th Cir. 2018), as amended (distinguishing between the 2015 and 2016 Sentencing Guidelines).

Although Jordan-McFeely contends that resentencing is warranted under the 2016 Sentencing Guidelines due to the amended definition of extortion, he waived any reliance on the 2016 Guidelines by asserting in the district court his “right to be sentenced under the pre-August 1, 2016 guideline.” See United States v. Kaplan, 836 F.3d 1199, 1216 (9th Cir. 2016) (explaining that “[a] party ․ waives a right when it is intentionally relinquished or abandoned”) (citation omitted). Even under plain error review, the district court was not compelled to retroactively apply the 2016 amendment. See United States v. Bankston, 901 F.3d 1100, 1105 (9th Cir. 2018) (recognizing the continued validity of the pre-2016 definition of extortion as it relates to robbery).

5. Jordan-McFeely fails to demonstrate that the district courts within-Guidelines sentence was substantively unreasonable. See United States v. Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir. 2017) (affording “significant deference to a district courts sentence under 18 U.S.C. § 3553”). The sentencing transcript reflects that the district court considered Jordan-McFeelys request for leniency, and tailored the sentence after considering the factors set forth in 18 U.S.C. § 3553(a).

Appellees motion, Dkt. No. 55, is granted.

AFFIRMED.

FOOTNOTES

. The 2015 Sentencing Guidelines were utilized at sentencing.