### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19

- 1704
U NITED S TATES OF A MERICA , Plaintiff

- Appel lee ,

v.

R OBERT M. T RIGGS , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin

. No. 16

- cr

- 51

- jdp

- 1

— James D. Peterson , Chief Judge

.

____________________
A RGUED J ANUARY 22, 2020

— D ECIDED J ULY 1, 2020

____________________

Before W OOD , Chief Judge , and S YKES and H AMILTON , Circuit Judg es

. S YKES , Circuit Judge

. Robert Triggs was indicted for unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(9), which prohibits firearm possession by persons convicted of a misdemeanor crime of domestic violence. The predicate conviction was more than ten years old , so Triggs mounted an as

- applied Second Amendment challenge to the indictment. When that argument failed, he conditionally2 No. 19

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pleaded guilty , reserving his right to appeal the Second Amendment ruling

. S oon afte r he filed his notice of appeal, the Supreme Court issued its decision in Rehaif v. United States , 139 S. Ct. 2191 (2019), clarifying the elements of a § 922(g) violation. The Court held tha t in a § 922(g) prosecution, the government must prove that the de fendant “ knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200 (emphasis added)

. The second knowledge element is new; no one was aware of it when Triggs pleaded guilty

. So in addition to his Second Amendment argument , Triggs raised

a Rehaif claim and seeks to withdraw his plea. The plain

- error standard governs our review of the Rehaif issue . T he government agrees that the error is plain

. The disputed question is whether it was prejudic ial , which in this context requires Triggs to establish a reasonable probability that he would not have pleaded guilty if he had known the government had to prove the Rehaif knowledge element. T hat , in turn, depends on whether Triggs can plausibl y argu e that he did not know he belonged to the relevant category of persons disqualified from firearm possession

— more specifically, that he did not know his ten

- year

- old conviction wa s a “misdemeanor crime of domestic violence” as that phrase is defined for purposes of § 922(g)(9)

. Triggs has made the required showing to withdraw his plea

. In contrast to some of the other categories of prohibited persons listed in § 922(g)

— notably , felons

— t he statutory definition of “misdemeanor crime of domestic violence” is quite complicated, giving Triggs a plausible defense. WeNo. 19

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vacate and remand for further proceedings without reaching the constitutional question

. I. Background
In Novem ber 2015 Triggs w as summoned to his son’s school in Tomah, Wisconsin, to discuss violen t social

- media threats his son and other students made against a teacher

. Tomah police were investigating and wanted to account for any firearms that the students may have access to . Triggs acknowledged that he owned several hunting rifles and agreed to let the officers into his home to inspect them

. En route to the home, Officer Aaron Hintz checked Triggs’s crim inal record and discovered that he had a 2008 misdemeanor battery conviction that might disqualify him from possessing firearms because it appeared to involve domestic abuse

. When the officers arrived at the home , Triggs directed the m to his three hunting rifles hanging unsecured in a wooden gun rack in the living room. A loaded rifle magazine and additional ammunition sat on a shelf underneath the rack. Officer Hintz inquired about the 2008 battery conviction and asked Triggs if he had tried to purchase a gun since that time . Triggs said that he had tried and was denied but hadn’t read the document notifying him of the denial

. Officer Hintz confirm ed that Triggs was prohibited from possessing firearm s and confronted him with this information

. Triggs claimed ignorance of the prohibition and voluntarily surrendered his guns . T he matter was referred to the U nited S tates Attorney for prosecution

. T he 2008 conviction for misdemeanor battery ar ose from

a dispute between Triggs and his then

- girlfrien d Nicole4 No. 19

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Oblak. 1 According to the incident report , on September 22, 2008, a Juneau County sheriff’s deputy responded to a domestic

- abuse call from Oblak. She told the deputy that she and Triggs were not getting along so she had moved out to stay with a fri end for a few days. When she returned to her residence to collect some belongings, Triggs begged her to stay and erupted in a fit of rage when she refused: he backed her up against a counter and squeezed her neck and throat, causing her to have difficulty breathing . He also broke two windows and damaged and stole items of her property.
T he sheriff’s office re ferred th e incident to local prosecutors as a felony strangulation/suffocation offense , but the assistant district attorney charge d it as a misdemeanor battery in violation of section s 940.19(1) and 968.075 of the Wisconsin Statutes

. The former statute is Wisconsin ’s simple battery offense . T he latter imposes certain requirements on law

- enforcement o fficers and prosecutors when confronted with incidents involving domestic abuse : the statute establishes a mandatory arrest rule

— officers must a rrest a suspect

w hen there are reasonable grounds to believe that domestic abuse has occurred

— and requires prose cutors to make swift charging decisions

. The statute also imposes an automatic

no

- contact order, barring the defendant from contacting the victim within 72 hours of arrest

.

1 In addition to this conviction, Triggs has a l engthy history of arrests from 2003 to the seizure of his firearms in 2015 , some of which res ulted in misdemeanor convictions and others in civil citations for ordinance violations

. In addition to the 2008 battery conviction, Triggs has four other misdemea nor convictions: two for bail jumping (one in connection with the 2008 battery) , one for issuing a worthless check , and one for disorderly conduct.No. 19

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In addition to the battery count, t he criminal complaint charged Triggs with three other misdemeanors: theft , criminal damage to property , and bail jumping ( for violating the terms of his release on a n earlier misdemeanor charge )

. Triggs represented himsel f in th e case

. In plea negotiations the prosecutor offered to dis miss the theft and property

- damage counts if Triggs would plead no contest to the battery and bail

- jumping counts . The prosecutor also agreed to recommend a withh e ld sentence and 18 months of probation . Triggs accepted the deal . He filled out and s igned

a waiver

- of

- counsel form and a plea questionnaire and
enter ed no

- contest pleas to battery and bail jumping. The judge accepted t h e waiver of counsel and no

- contest pleas and placed Triggs on probation for 18 months , as the prosecutor recommended

. The remaining counts were dismissed. The judgment of conviction includes a domestic

- abuse surcharge as part of Triggs’s court costs

. See W IS

. S TAT

. § 973.055

. B ased on th is 2008 misdemeanor battery conviction , in May 2016 a federal grand jury returned a one

- count indictment against Triggs alleging a violati on of § 922(g)(9) stemming from his possessi on of the hunting rifles in November 2015

. Triggs moved to dismiss the indictment , raising an as

applied Second Amendment challenge to the prosecution. His argument was largely based on the age of the predicate conviction

— it was more than ten years old

— but Triggs also pointed to certain mitigating factors in his case , his personal char acteristics , and social

- science data to support his constitutional defense

. After an evidentiary hearing, t he judge denied the motion

.6 No. 19

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Triggs then entered a conditional guilty plea, reserving his right to appeal th e Second Amendment ruling

. The Supreme Cou rt issued Rehaif before Triggs’s opening brief was due, so his appeal raises both the Second Amendment issue and a new claim of Rehaif error. II. Discussion We begin (and end) with the Rehaif error. Triggs asks us to permit him to withdraw his guilty plea because Rehaif announced a new understanding of the elements of the crime of unlawful firearm possession under § 922(g)

— namely , that the government must prove not only that the defendant knew he possessed a firearm but also that “ he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif , 139 S. Ct. at 2200. This issue is necessarily new on appeal , so w e review it for plain

error. United States v. Williams , 946 F.3d 968, 971 (7th Cir. 2020).
Under t h e plain

- error standard , Triggs must establish that th e Rehaif error is clear or obvious and affect ed his substantial rights ; if he does so, we may correct the error if it seriously affected the fairness, integrity, or public reputation of th e judicial proceedings. Id

. The government concedes that the Rehaif error is clear

. See F ED

. R. C RIM

. P. 11(b)(1)(G) (requiring a judge to inform a defendant of “ the nature of each charge to which [ he ] is pleading ” ). W e focus our analysis on the question of prejudice

— whether the error affected Triggs’s substantial rights

. Th e prejudice element of plain

error review requires Triggs to establish a reasonable probability that but for the error , the result below would have been different

— more specific ally, t hat he would not have pleaded guilty to the § 922(g)(9) charge if he had knownNo. 19

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about the effect of Rehaif

. United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004).
Before addressing this question , w e pause to note that

s ome important follow

- on Re haif issues are now resolved in this circuit , with implications for this appeal

. For example, Triggs argues tha t Rehaif errors should be considered structural and thus automatically prejudicial. We recently rejected that argument in United State s v. Maez , 960 F.3d 949, 957

– 58 (7th Cir. 2020). Our decision in Mae z also answered a lingering question about the scope of the Rehaif knowledge element : does § 922(g) as interpreted in Rehaif require the government to prove only that the defendant was aware of his s tatus

— e.g., knew he had a felony conviction, see 18 U.S.C. § 922(g)(1), or a conviction for a misdemeanor crime of domestic violence, id

. § 922(g)(9) , etc.

— or must the government prove that t he defendant knew “ it was a crime to possess a firearm as a resul t of [his] prohibited status ? ” Maez , 960 F.3d at 954

. We rejected t he latter reading of Rehaif because it would impermissibly gloss the term “knowingly” in th is statut ory scheme with a willfulness requirement. Id

. I nstead , we understood Rehaif to hold that § 922(g) requires the government to prove that the defendant knew he had the relevant
status , not that he knew he was legal ly bar red from possessi ng firearms

. Id

. at 955. Finally, we confirmed i n Williams that “the burden of persuasion rests on t he defendant seeking to withdraw his plea based on a Rehaif error. ” 946 F.3d at 973. Applying th ese understanding s here , it’s now clear that to convict Triggs at trial , the government had to prove that he knew he had been convicted of a “ misdemeanor crime of8 No. 19

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domestic violence ” as that phrase is defined f or purposes of § 922(g)(9) (though not that he knew he was barred from possessing firearms)

. So to establish prejudice from the Rehaif error , Triggs must e stablish a reasonable probability that he would not have pleaded guilty had he known of the government ’s burden to prove this element

. Id. at 971

. In assessing whether he has done so , we can “fairly ask ” what Triggs might have thought he stood to gain by insisting on a trial , though we will not “second

- guess” a defendant’s own guilty

- plea calculus “if the record shows it is reasonably probable tha t he would have take n a chance at trial, even foolishly.” Id

. at 973

. Many prosecutions under § 922(g) involve violations of subsection (1), the felon

- dispossession provision, which prohibits firearm possession by any person “who has been convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year.” Under this s imple definit ion, a defendant will have difficul t y establishing prejudice from a Rehaif error because the new knowledge element is quite eas y to prove, especially when the defendant previously served more than a year in prison

. Id. As we explain ed in Williams , a defendant who previously served more than a year in prison for a single conviction “cannot plausibly argue that he did not know his conviction had a maximum punishment exceeding a year.” Id

. A defendant in th at situation “ will face an uphi l l battle to sh ow that a Rehaif error in a guilty plea affected his substantial rights” because the new understanding of the knowledge element doesn’t materially change the guilty

- plea calculus. Id

. at 974 ; see also United States v. Dowthard , 948 F.3d 814, 818 (7 th Cir. 2020)No. 19

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The same cannot be said of Triggs. Unlike the straightforward definition in the felon

- disposse s sion provision, the definition of the term “misdemeanor crime of domestic violence” as used in § 922(g)(9) is quite complex : (33)(A) [T]he term “misdemeano r crime of domestic violence” means an offense that

— (i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current orformer spouse, parent, or guardian of the victim, by a person with whom the victim sharesa child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse , parent, or guardian of the victim.
(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless

— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the ri ght to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which aperson was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or10 No. 19

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(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. 18 U.S.C. 921(a)(33) (in part).
Given the comparative complexity of this definition, the guilty

- plea calculus changes. Rehaif improve s Tr iggs’s trial prospects, giving him at least a plausible argument that he was unaware that his 2008 battery conviction is a crime of this nature

. A t the time of his guilty plea , he was facing trial without a clear defense as to any of the elements of § 922( g)(9) as t he y were then understood. The Supreme Court’s clarification of the elements of th is crime means that the government must prove a new and

— in the case of § 922(g)(9)

— burdensome knowledge element. Rehaif opens a potentially viable avenue of defense. Beyond the complexity of th e statutory definition, t h e messy nature of the proceedings that led to Trigg s ’s 2008 conviction makes the government’s burden on the Rehaif element that much more challenging. First, and importantly, Triggs d id not have a lawyer. T hough he signed a waiver

- of

counsel form and the judge conducted an on

- the

- record colloquy before accepting it , the fact remains that Triggs did not have the assistance of legal counsel to explain the elements of the offense or the i mplications of his no

- contest plea. The criminal complaint , moreover, was entirely conclusory and not quite correct, labeling the charge “misdemeanor battery, domestic abuse” when there is no such crime in Wisconsin. Instead, the crime charged in the compl aint is simple battery in violation of section 94 0 .19(1) of theNo. 19

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Wisconsin Statutes

. Although section 968.075 was also cited , that statute , as we’ve explained, does not add any elements to the simple battery offense; rather, it imposes certain duties on the police and prosecutors when domestic abuse is suspected.
C o mpounding the government’s proof problems , t h e plea questionnaire that Triggs signed and submitted wa s woefully incomplete and unclear. The questionnaire has a box for the defense attorney to enter the crime to which the defendant intends to plead guilty or no contest

. The box is empty ; t he offense of battery is not named, the relevant statute is not ci ted, and t he elements of the crime do not appear anywhere on the form

. (Nor is bail jumping mentioned.) A two

- page document list ing the elements of some common criminal offenses is attached to the questionnaire

. The elements of battery are listed on this d ocument , but the corresponding checkbox is not mark ed and there i s no indication whatsoever that th e elements were made known to Triggs. The transcript of the plea hearing reflects that the judge conducted only a brief and perfunctory colloquy before accepting Triggs’s no

- contest pleas

. The judge did not advise him of the elements of either of the offenses to which he was pleading no contest . Nor did t he judge mention a firearm prohibition

. We do not mean to suggest that Triggs’ s underlying battery conviction was procedurally invalid

. But the record of these proceedings is important evidence of whether Triggs knew that he had been convicted of a misdemeanor crime of domestic violence a s defined in § 921(a)( 3 3). I t is un clear whether Triggs was ever properly notified of the nature of12 No. 19

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the battery charge or its requi red elements. The se shortcomings in the state

- court proceedings make the Rehaif element harder to prove. Trigg s has a colorable argument that he was

un aware that he was convi cted of a misdemeanor crime of domestic violence as that term is used in § 922(g)(9)

. To be sure, the record contains evidence that works against Triggs on the Rehaif element, including the fact that he tried to buy a gun since the 2008 conviction and wasturned down. But it’s not necessary to weigh Triggs’s likelihood of success at trial. “ [T] he reasonable probability standard is not the equivalent of a requirement that a defendant prove by a preponderance of the evidence that but for error things would h ave been different. ” Williams , 946 F.3d at 973 (quotation marks omitted). What matters is that in light of Rehaif , he has a plausible defense. Triggs has carried his burden to establish a reasonable probability that he would not have pleaded guilty had he known of the government’s Rehaif burden

. This is a proper case to exercise our discretionary authority to correct an unpreserved error. A con viction entered on

a n unknowing guilty plea violates “the first and most universally recognized requirement of due process”

— namely, that a defendant receive “real notice of the true nature of the charge against him.” Bousley v. United States , 523 U.S. 614, 618 (1998) (quotation marks omitted)

. Accordingly, we V ACATE the judgment and R EMAND for further proceed ings

.