United States Court of Appeals

[Pages:24]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

____________

Submitted: December 18, 2020 Filed: May 10, 2021 ____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. ____________

SMITH, Chief Judge.

An Iowa state court issued a protection order against Justin Dwight SholleyGonzalez. 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 SholleyGonzalez'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-cr00090-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. SholleyGonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-3. SholleyGonzalez 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 SholleyGonzalez 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 firearmhunting 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 SholleyGonzalez'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, SholleyGonzalez 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 selfserving.

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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