### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1287

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C ARLOS M AEZ

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:16

‐ cr

‐ 00057

‐ JD

‐ MGG

‐ 1

— Jon E. DeGuilio

, Judge

.

____________________

S UBMITTED M ARCH 31, 2020 *

— D ECIDED J UNE 1, 2020

____________________

* This court granted the parties ʹ joint motion to waive oral argument.

The case is therefore submitted on the briefs.2 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

No. 19

‐ 1768

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

M ATTHEW R. J ONES

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois, Urbana Division.

No. 2:18

‐ cr

‐ 20036

‐ HAB

‐ EIL

‐ 1

— Harold A. Baker

, Judge

.

____________________

No. 19

‐ 2049

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C AMERON B ATTISTE

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17

‐ cr

‐ 00220

‐ 2

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED M ARCH 31, 2020

— D ECIDED J UNE 1, 2020

____________________

Before W OOD

, Chief Judge

, and K ANNE and H AMILTON

, Cir

‐

cuit Judges

.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 3

H AMILTON

, Circuit Judge

. In separate cases, juries found

appellants Carlos Maez, Ma tt hew Jones, and Cameron Bat

‐

tiste guilty of violating 18 U.S.C. § 922(g), which prohibits

convicted felons and several other classes of people from pos

‐ sessing fi rearms or ammunition. In their appeals, the three de

‐

fendants raise overlapping issues relying on Rehaif v. United

States

, 139 S. Ct. 2191 (2019), to challenge their convictions in

trials held before Rehaif was decided. Before Rehaif

, the federal

courts of appeals had all held that § 922(g) required the gov

‐

ernment to prove a defendant knowingly possessed a fi rearm

or ammunition, but not that the defendant knew he or she be

‐ longed to one of the prohibited classes. United States v. Wil

‐

liams

, 946 F.3d 968, 970 (7th Cir. 2020). In Rehaif

, the Supreme

Court reached a di ff erent conclusion, holding that the statute

requires the government to “show that the defendant knew

he possessed a fi rearm and also that he knew he had the rele

‐

vant status when he possessed it.” 139 S. Ct. at 2194.

Courts across the nation are grappling with how Rehaif af

‐

fects cases pending on direct appeal when it came down. This

court has already a ffi rmed several pre

‐ Rehaif convictions

based on guilty pleas, but this is our fi rst precedential decision

concerning convictions upon jury verdicts. See United States v.

Ballard

, 950 F.3d 434, 436 n.1 (7th Cir. 2020); United States v.

Dowthard

, 948 F.3d 814, 818 (7th Cir. 2020); Williams

, 946 F.3d

at 975. The three appellants assert types of error that we have

not yet addressed in light of Rehaif : a missing element in their

indictments and jury instructions and—in Jones’s case—a de

‐

nied motion for a judgment of acqui tt al. Applying plain

‐ error

review, we conclude that the asserted errors do not require

reversing any of the convictions. We vacate Jones’s sentence,

however. As the government acknowledges, the district court

made what is known as a Tapia error, imposing a longer4 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

prison term for purposes of rehabilitation through prison pro

‐

grams. See Tapia v. United States

, 564 U.S. 319, 334 (2011).

I. Factual and Procedural Background

Carlos Maez robbed a bank at gunpoint in South Bend, In

‐

diana, on October 16, 2015. Police found fi rearms and ammu

‐

nition in Ma tt hew Jones’s bedroom when executing a search

warrant for his home in Kankakee, Illinois, on July 15, 2018.

And when federal agents arrested Cameron Ba tt iste and his

girlfriend outside their apartment complex in Willowbrook,

Illinois, on April 7, 2017, his girlfriend was carrying a laundry

bag that contained two fi rearms. Each defendant stipulated at

his trial that prior to the charged possession of a fi rearm, he

had been convicted of a crime punishable by imprisonment

for a term exceeding one year. Juries found each defendant

guilty on one count of violating 18 U.S.C. § 922(g)(1), and each

was sentenced under § 924(a)(2). 1

On appeal, the defendants argue that Rehaif v. United

States

, 139 S. Ct. 2191, requires reversal of their § 922(g) con

‐

victions. All three defendants argue that their indictments

were defective because they failed to allege that they knew of

their felon status. All three argue that the jury instructions er

‐ roneously omi tt ed this same element of knowledge. None of

the defendants objected to the indictment or jury instructions

in the district courts, on any grounds. Jones did, however,

move for a judgment of acqui tt al at the close of evidence. See

Fed. R. Crim. P. 29(a). He gave no speci fi c grounds to support

his oral motion, and the district court denied it without asking

1 Maez was also convicted of one count of armed bank robbery and

one count of using or carrying a firearm in relation to a crime of violence.

See 18 U.S.C. §§ 2113(d), 924(c). He does not challenge those convictions.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 5

for elaboration. Jones argues that this denial was also a Rehaif

error because the trial evidence was insu ffi cient to show that

he knew he was a felon. 2

II. Legal Framework

We fi rst address the common legal issues raised by these

jury verdicts before Rehaif was decided. Current law governs

our review on direct appeal, including any issues reviewed

for plain error. See Henderson v. United States

, 568 U.S. 266,

276–77 (2013). This principle applies with full force where an

intervening decision has e ff ectively added an element to a

crime. See Johnson v. United States

, 520 U.S. 461, 467–68 (1997)

(giving retroactive e ff ect to United States v. Gaudin

, 515 U.S.

506 (1995), which required the jury to fi nd materiality in per

‐ jury prosecutions); United States v. Ross

, 77 F.3d 1525, 1539 (7th

Cir. 1996) (same). Several questions arise concerning our re

‐

view of jury verdicts rendered before Rehaif was issued.

A. Scope of Knowledge Required by Rehaif

Jones and Ba tt iste raise a threshold question concerning

the scope of the Supreme Court’s holding in Rehaif

. The Court

held that “in a prosecution under 18 U.S.C. § 922(g) and

§ 924(a)(2), the Government must prove both that the defend

‐

ant knew he possessed a fi rearm and that he knew he be

‐ longed to the relevant category of persons barred from pos

‐ sessing a fi rearm.” 139 S. Ct. at 2200. Does this language re

‐ quire only that defendants know their status —in these cases,

having a felony conviction? Or, construing the decision more

2 Battiste moved for a judgment of acquittal in the district court as

well, but his written motion specifically targeted the government’s case

that he possessed the firearms. On appeal, he does not challenge the denial

of that motion.6 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

broadly, must defendants know that it was a crime to possess a

fi rearm as a result of their prohibited status? Jones and Ba tt iste

press the broader interpretation. In e ff ect, they argue that

§ 922(g), as interpreted in Rehaif

, prohibits only criminally

willful possession of fi rearms and ammunition—possession

with knowledge that the law makes the possession a crime.

See Bryan v. United States

, 524 U.S. 184, 191–92 (1998) (“As a

general ma tt er, when used in the criminal context,

... in order

to establish a ‘willful’ violation of a statute, ‘the Government

must prove that the defendant acted with knowledge that his

conduct was unlawful.’”), quoting Ra tz laf v. United States

, 510

U.S. 135, 137 (1994).

We do not read Rehaif as imposing a willfulness require

‐

ment on § 922(g) prosecutions. First, the di ff erence between

requiring knowledge of status and knowledge of the criminal

prohibition is so important in the practical workings of fed

‐

eral courts that the Supreme Court would not have adopted

the broader reading without saying so with unmistakable

clarity. More fundamental, the logic of the Court’s opinion

supports only the narrower requirement of knowledge of sta

‐

tus. The textual analysis centered on Congress’s use of the

word “knowingly” in § 924(a)(2), which spells out the punish

‐

ment for violations of § 922(g). 139 S. Ct. at 2195. This fact

alone casts serious doubt on Jones and Ba tt iste’s reading be

‐

cause, in criminal law, “knowing” connotes a lower level of

scienter than does “willful.” In Bryan

, the Court collected

cases holding that defendants could be convicted of “know

‐ ing” crimes without proof that they knew their deliberate ac

‐

tions violated the law. 524 U.S. at 192–93. Rehaif fi ts easily into

that line of cases interpreting “knowing” requirements.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 7

Rehaif changed governing law in holding that “know

‐ ingly” in § 924(a)(2) applies not only to the “possession ele

‐

ment” of § 922(g) but also to its “status element.” 139 S. Ct

. at

2195–96. In other words, both elements require the same

knowledge, an awareness of the fact. See Model Penal Code

§ 2.02(2)(b)(i) (Am. Law Inst. 1985). Before Rehaif

, we consist

‐ ently held that the government needed to prove that § 922(g)

defendants knew only that they possessed fi rearms or ammu

‐

nition, not that they knew their status or that their possession

was unlawful. See, e.g., United States v. Stein

, 712 F.3d 1038,

1041 (7th Cir. 2013) (“[T]he word ‘knowingly’ made applica

‐

ble to § 922(g) by § 924(a)(2) requires knowledge of the factual

elements of the o ff ense and nothing more.”); United States v.

Wilson

, 159 F.3d 280, 289 (7th Cir. 1998) (“[T]he fact that [the

defendant] did not know about the statute does not mean that

he could not have commi tt ed a ‘knowing’ violation of it.”).

Rehaif did not overturn such holdings with respect to the pos

‐

session element; it applied the same knowledge requirement

to the status element.

Next, Rehaif ’s discussion of “the well

‐ known maxim that

‘ignorance of the law’ (or a ‘mistake of law’) is no excuse”

makes doubly clear that § 922(g) requires knowledge only of

status, not knowledge of the § 922(g) prohibition itself. As the

Court explained, the maxim means that a defendant normally

cannot argue that he was “unaware of the existence of a stat

‐

ute proscribing his conduct.” 139 S. Ct. at 2198, quoting 1

Wayne R. LaFave & Austin W. Sco tt

, Jr., Substantive Criminal

Law § 5.1(a), at 575 (1986). But ignorance as to a “collateral

ma tt er,” even if that ma tt er happens to be a legal fact, can

“negat[e] an element of the o ff ense.” Id. The Court concluded

that a “defendant’s status” under one of the provisions of

§ 922(g) is a “‘collateral’ question of law,” so the “ignorance”8 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

maxim does not apply. Id. The fact that § 922(g)(1) exists and

prohibits certain conduct is not collateral, though. It is the

prohibition itself. Because § 924(a)(2) does not require willful

‐

ness, ignorance of the statutory prohibition itself is not a de

‐

fense. 3

B. Standards of Review

We next identify the standard of review for each type of

error argued in these three appeals: a defective indictment, an

element omi tt ed from jury instructions, and a denied Rule 29

motion. Although it is tempting to lump these Rehaif errors

together, each has distinctive features we must consider.

1. Incomplete Jury Instructions

None of these defendants asked to have the jury instructed

that the government was required to prove that, at the time

he possessed the fi rearm, he knew that he had previously

been convicted of a felony. Failing to raise an objection to the

jury instructions before deliberations start “precludes appel

‐

late review, except as permi tt ed under Rule 52(b).” Fed. R.

Crim. P. 30(d). Rule 52(b) in turn allows for “plain

‐ error” re

‐

view: “A plain error that a ff ects substantial rights may be con

‐

sidered even though it was not brought to the court’s a tt en

‐

tion.” We review for plain error even if the objection would

3 The dissenting Justices in Rehaif also read the majority opinion this

way. According to the dissent, no one, including Rehaif, argued for will

‐

fulness because “the pointed use of the term ‘knowingly,’ as opposed to

‘willfully,’ in § 922(g), provides a ground to infer that Congress did not

mean to require knowledge of illegality.” 139 S. Ct. at 2205 (Alito, J., dis

‐ senting). Instead, the majority “require[d] knowledge of both the conduct

and status elements of the offense.” Id. The majority did not object to this

description of its holding.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 9

have lacked merit at the time of trial, before an intervening

change in the law. See Johnson

, 520 U.S. at 464–66 (applying

plain

‐ error review to jury instructions rendered incomplete

by a decision issued after conviction).

Plain

‐ error review under Rule 52(b) has four elements:

“[B]efore an appellate court can correct an error not raised at

trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that

‘a ff ect[s] substantial rights.’ If all three conditions are met, an

appellate court may then exercise its discretion to notice a for

‐

feited error, but only if (4) the error ‘seriously a ff ect[s] the fair

‐

ness, integrity, or public reputation of judicial proceedings.’”

Johnson

, 520 U.S. at 466–67, quoting Olano v. United States

, 507

U.S. 725, 732 (1993); see also United States v. Caira

, 737 F.3d

455, 462–63 (7th Cir. 2013) (applying Olano test to forfeited ob

‐ jections to jury instructions).

2. Defective Indictments

None of these defendants objected to any defect in his in

‐

dictment before trial, as required by Rule 12(b)(3)(B)(v). In

Jones and Ba tt iste’s cases, the government argues that these

failures waived any challenge to their indictments on appeal.

As we recently made clear in United States v. Muresanu

, indict

‐

ment defects are never jurisdictional so they may be waived if

not properly presented. 951 F.3d 833, 837–39 (7th Cir. 2020),

citing United States v. Co tt on

, 535 U.S. 625, 631 (2002). The de

‐

fendants here invoke Rule 12(c)(3), which allows a district

court to consider untimely challenges to an indictment “if the

party shows good cause.” We have interpreted this provision

to permit new arguments on appeal as well, provided that

“the district court would have abused its discretion if it had

concluded that [the defendant] lacked good cause.” United

States v. Thomas

, 897 F.3d 807, 815 (7th Cir. 2018); see also10 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

United States v. Locke tt

, 859 F.3d 425, 428 (7th Cir. 2017)

(same). 4

An intervening legal decision that overturns se tt led law

amounts to good cause for this purpose. The government has

conceded as much in Maez’s appeal. In Thomas

, we explained

that the Supreme Court’s intervening decision in Carpenter v.

United States

, 138 S. Ct. 2206 (2018), was not good cause for

failing to move to suppress evidence because it resolved a cir

‐

cuit split on a “high

‐ pro fi le issue,” so the defendant should

have presented his argument to the district court. 897 F.3d at

815. In contrast, Rehaif went counter to the se tt led views of

every federal court of appeals on an issue a ff ecting thousands

of felon

‐ in

‐ possession prosecutions every year. See 139 S. Ct.

at 2210 (Alito, J., dissenting). If Rehaif had come down while

these cases remained in the district courts, it would have been

an abuse of discretion for a judge to refuse to consider an un

‐ timely challenge to the indictment based on Rehaif

.

Although the intervening decision in Rehaif establishes

good cause to avoid waiver, the issue was still not preserved

in these cases, so we again review the indictments for plain

error. See United States v. Grayson Enterprises, Inc

., 950 F.3d

386, 403 (7th Cir. 2020) (showing of good cause under Rule

12(c)(3) gives rise to plain

‐ error review). An alleged indict

‐

ment error is “plain,” satisfying the fi rst two prongs of the

Olano test, only if the indictment “is so obviously defective as

not to charge the o ff ense by any reasonable construction.”

4 The situation is different for a defendant who pleads guilty and

waives “any argument that could have been raised in a pretrial motion.”

United States v. Wheeler

, 857 F.3d 742, 744 (7th Cir. 2017). The good

‐ cause

proviso thus will usually help only defendants who went to trial.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 11

United States v. Frank Smith

, 223 F.3d 554, 571 (7th Cir. 2000);

see also Grayson Enterprises

, 950 F.3d at 402 (same). 5

One of the defendants’ principal arguments on appeal is

that the omission of an element from the indictment is a

“structural error” that, they argue, always requires reversal.

As an initial ma tt er, a fi nding of structural error would de fi n

‐ itively resolve only the third prong of the Olano plain

‐ error

test, the e ff ect on substantial rights. The Supreme Court has

“noted the possibility that certain errors, termed ‘structural

errors,’ might ‘a ff ec[t] substantial rights’ regardless of their

actual impact on an appellant’s trial.” United States v. Marcus

,

560 U.S. 258, 263 (2010); see also Arizona v. Fulminante

, 499 U.S.

279, 309 (1991) (“structural defects in the constitution of the

trial mechanism

... defy analysis by ‘harmless

‐ error’ stand

‐ ards”). The Court has repeatedly assumed without deciding

that such structural errors “automatically satisfy the third

prong of the plain

‐ error test.” Pucke tt v. United States

, 556 U.S.

129, 140 (2009) (emphasis added); see also Co tt on

, 535 U.S. at

632; Johnson

, 520 U.S. at 468–69; Olano

, 507 U.S. at 735. We

have done the same. See United States v. Anderson

, 881 F.3d

568, 573 (7th Cir. 2018) (“[T]here is a question as to whether

the third prong of the plain error test is met automatically in

cases of structural error.”); see also United States v. Gary

, 954

F.3d 194, 205 (4th Cir. 2020) (“[I]f an error is determined to be

structural, the third prong of Olano is satis fi ed.”). Even struc

‐

tural errors remain subject to the fourth and discretionary

prong of the plain

‐ error test.

5 We cite two different cases where the defendant’s last name was

Smith, so we have included first names in the relevant citations.12 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

Still, a structural error would go a long way toward rever

‐

sal of these convictions, so we address the argument.

“‘[S]tructural errors’ are ‘a very limited class’ of errors that

a ff ect the ‘framework within which the trial proceeds.’” Mar

‐

cus

, 560 U.S. at 263, quoting Johnson

, 520 U.S. at 468. The Su

‐

preme Court has identi fi ed, in total, about a dozen forms of

structural error, depending on how one counts. See 7 Wayne

R. LaFave et al., Criminal Procedure § 27.6(d) (4th ed. 2019).

Signal examples include the total deprivation of counsel, the

lack of an impartial trial judge, a violation of the right to a

public trial, and an erroneous reasonable

‐ doubt instruction.

Marcus

, 560 U.S. at 263. That is not to say that previously un

‐ recognized forms of structural error cannot be newly identi

‐

fi ed. In Weaver v. Massachuse tt s

, 137 S. Ct. 1899 (2017), the

Court listed three di ff erent qualities that can render an error

structural: (1) “the right at issue is not designed to protect the

defendant from erroneous conviction but instead protects

some other interest;” (2) “the e ff ects of the error are simply

too hard to measure;” or (3) “the error always results in fun

‐

damental unfairness.” Id. at 1908. The defendants here argue

that “an indictment that omits an essential element” satis fi es

the second and third criteria.

In Co tt on

, the Supreme Court expressly reserved the ques

‐

tion whether indictment errors are structural. See 535 U.S. at

632–33. Binding precedent in this circuit holds that they are

not. In United States v. Nance

, 236 F.3d 820 (7th Cir. 2000), we

reviewed a drug conviction after the Supreme Court decided

Apprendi v. New Jersey

, which required “any fact that increases

the penalty for a crime beyond the prescribed statutory max

‐

imum” to be charged in an indictment and proved to a jury.

530 U.S. 466, 490 (2000). Reviewing for plain error in Nance

,Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 13

we agreed with the defendant that his indictment was defec

‐

tive in light of Apprendi

. 236 F.3d at 825. We then asked

whether this was “a structural error so fundamental that it

cannot be left unremedied,” the same argument defendants

make here. We concluded the error was not structural because

an incomplete indictment was analogous to an error in the

jury instructions. Id

. We have also held in numerous cases that

prejudice is required to reverse based on a preserved challenge

to the indictment. See, e.g., United States v. Vaughn

, 722 F.3d

918, 925 (7th Cir. 2013); United States v. Dooley

, 578 F.3d 582,

590 (7th Cir. 2009); United States v. Webster

, 125 F.3d 1024, 1029

(7th Cir. 1997). By de fi nition, though, a structural error does

not require a showing of prejudice. See Fulminante

, 499 U.S. at

309. The defendants do not a tt empt to distinguish these cases.

In e ff ect, the defendants tacitly ask us to overrule multiple

prior decisions based on the criteria identi fi ed in Weaver

, 137

S. Ct. at 1908. We decline to do so. First, the defendants mount

no argument that the grand jury right “is not designed to pro

‐

tect the defendant,” and we can imagine none. Second, the ef

‐

fect of an indictment error is not “too hard to measure.” The

potential e ff ect depends on context, of course, but often turns

on whether there is doubt that the defendant was put on no

‐

tice of the nature of the charges. See, e.g., Dooley

, 578 F.3d at

590 (“It is clear from the record that Mr. Dooley and his coun

‐

sel understood the Government’s allegations and were able to

mount a vigorous, albeit unsuccessful, defense at trial.”).

Third, not every indictment error “results in fundamental un

‐

fairness.” Some may, but others raise no serious questions

about the integrity of the criminal process. See Russell v.

United States

, 369 U.S. 749, 763 (1962) (praising the “salutary

development in the criminal law” that “[c]onvictions are no

longer reversed because of minor and technical de fi ciencies14 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

[in the indictment] which did not prejudice the accused”). De

‐

fendants who have su ff ered an e ff ect on their substantial

rights because of indictment error can still obtain relief under

existing law.

3. Denied Rule 29 Motion

Jones moved for judgment of acqui tt al under Rule 29 in

the district court. His motion was general. He asserted only

that “the Government has not presented su ffi cient evidence

to prove their case beyond a reasonable doubt.” Without ask

‐ ing Jones to elaborate, the district court denied the motion,

which was clearly the correct decision under then

‐ governing

circuit precedent.

This short exchange preserved all possible challenges to

the su ffi ciency of the evidence, including the post

‐ Rehaif ar

‐

gument that the government failed to prove that Jones knew

his felony status. A motion under Rule 29 that makes speci fi c

arguments waives issues not presented, but a general motion

preserves every objection. “Although a motion for judgment

of acqui tt al need not spell out the particular basis for the chal

‐ lenge to the su ffi ciency of the evidence, when such a motion

raises speci fi c arguments, any claims not presented in the mo

‐

tion are waived.” United States v. Jones

, 763 F.3d 777, 811–12

(7th Cir. 2014), vacated on other grounds in United States v.

Drake

, 774 F.3d 1104 (7th Cir. 2014), quoting United States v.

Moore

, 363 F.3d 631, 637 (7th Cir. 2004); see also United States

v. Hammoude

, 51 F.3d 288, 291 (D.C. Cir. 1995) (“Hammoude’s

second motion for acqui tt al was broadly stated, without spe

‐

ci fi c grounds, and was therefore su ffi cient to preserve the full

range of challenges, whether stated or unstated, to the su ffi‐

ciency of the evidence.”). Cf. United States v. Huntsberry

, 956

F.3d 270, 282–83 (5th Cir. 2020) (reviewing for plain error aNos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 15

denied Rule 29 motion after Rehaif where original motion ar

‐ gued for acqui tt al on a di ff erent basis). 6

We therefore apply de novo review to Jones’s preserved

challenge to the su ffi ciency of the evidence in light of Rehaif

.

We ask “whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” United States v. Hernandez

, 952 F.3d 856, 859 (7th Cir.

2020).

C. Record for Plain

‐ Error Review

A fi nal question raised by these appeals from jury verdicts

is the scope of the record we review for plain error. Must er

‐

rors in the jury instructions and indictments be evaluated

solely against the trial record of evidence heard by the jury,

or may we also consider information revealed at sentencing?

The answer has important consequences for pending appeals

after Rehaif

. Nearly all felon

‐ in

‐ possession defendants who go

to trial, including all three defendants here, stipulate to the

fact of a prior conviction. Pursuant to Old Chief v. United States

,

519 U.S. 172 (1997), that stipulation has barred the govern

‐

ment from o ff ering more detailed evidence of their criminal

6 This rule follows from the fact that parties to a criminal case—unlike

civil parties—have no general obligation to support these motions with

specific reasons. See Fed. R. Crim. P. 47 advisory committee’s note to 1944

adoption (“This rule is substantially the same as the corresponding civil

rule, except that it authorizes the court to permit motions to be made

orally and does not require that the grounds upon which a motion is made

shall be stated ‘with particularity,’ as is the case with the civil rule.” (cita

‐

tion omitted)); see also Peter J. Henning & Sarah N. Welling, 2A Federal

Practice and Procedure: Criminal § 466 (4th ed. 2019) (“Specificity is not

required by Rule 29 or by Rule 47.”).16 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

histories. (In the wake of Rehaif

, defendants and the govern

‐

ment have begun agreeing to modi fi ed Old Chief stipulations

that also include knowledge of felon status. See, e.g., United

States v. Price

, No. 1:18

‐ cr

‐ 00348

‐ JMS

‐ MPB

‐ 1, 2020 WL

2113410, at *3 (S.D. Ind. May 4, 2020); United States v. Garcia

,

No. 16

‐ cr

‐ 00109

‐ 1, 2020 WL 1663127, at *8 (N.D. Ill. Apr. 3,

2020).) But trial records in cases tried before Rehaif was issued

are likely to disclose li tt le regarding defendants’ knowledge

of felon status, due in part to the Old Chief bar. The appropri

‐

ate record on plain

‐ error review is important, and the courts

of appeals have taken di ff erent approaches to this issue after

Rehaif

.

As an initial ma tt er, it is well established that, to review

alleged errors in guilty plea proceedings

, appellate courts con

‐

sider the entire record, not just the transcript of the plea hear

‐ ing: “in assessing the e ff ect of Rule 11 error, a reviewing court

must look to the entire record, not to the plea proceedings

alone.” United States v. Dominguez Benitez

, 542 U.S. 74, 80

(2004), citing United States v. Vonn

, 535 U.S. 55, 74–75 (2002).

We have applied this approach to Rehaif claims. E.g., United

States v. Williams

, 946 F.3d 968, 974 (7th Cir. 2020) (consulting

entire district court record to assess e ff ect of Rehaif error in

plea colloquy). But Vonn relied on an advisory commi tt ee note

to Rule 11 for this holding. See 535 U.S. at 74. The same logic

does not apply to trial errors. To win reversal of a guilty plea

on plain

‐ error review, a defendant “must show a reasonable

probability that, but for the error, he would not have entered

the plea.” Dominguez Benitez

, 542 U.S. at 83. This “cost

‐ bene fi t

analysis” of the defendant’s options, United States v. Coleman

,

806 F.3d 941, 945 (7th Cir. 2015), would be impossible based

on a plea

‐ hearing transcript alone.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 17

The circuits have taken di ff erent approaches to the record

for plain

‐ error review of jury verdicts in light of Rehaif

. Four

circuits have freely consulted materials not before the jury—

in particular, criminal histories from defendants’ presentence

investigation reports (PSRs)—without discussing the propri

‐

ety of thus expanding the record. See United States v. Ward

, 957

F.3d 691, 695 & n.1 (6th Cir. 2020) (citing Vonn for authority to

consult non

‐ jury evidence without addressing Vonn ’s limita

‐

tion to plea context); United States v. Reed

, 941 F.3d 1018, 1021

(11th Cir. 2019) (same); see also United States v. Hollingshed

,

940 F.3d 410, 415–16 (8th Cir. 2019) (assuming without analy

‐

sis that consulting non

‐jury evidence is permissible); United

States v. Benamor

, 937 F.3d 1182, 1189 (9th Cir. 2019) (same).

The Second Circuit took a more cautious approach in

United States v. Miller

, 954 F.3d 551 (2d Cir. 2020). Like the de

‐

fendants here, the defendant in Miller was convicted by a jury

of violating § 922(g)(1) after stipulating under Old Chief to the

fact of a prior felony conviction. See id. at 556, 559 & n.23. At

the third prong of the plain

‐ error test—the e ff ect on substan

‐

tial rights— Miller expressly limited itself “to the evidence ac

‐ tually presented to the jury.” Id. at 558 & n.17, citing Neder v.

United States

, 527 U.S. 1, 19 (1999). It concluded that, on such

a limited record, “the substantial

‐ rights analysis” was “a dif

‐

fi cult one,” and declined to resolve it. Id. at 559. The court pro

‐

ceeded to the fourth prong. Citing the constraints that Old

Chief had imposed on the government at trial, the Second Cir

‐

cuit concluded that “in the limited context of [its] fourth

‐

prong analysis,” it would “consider reliable evidence in the

record on appeal that was not a part of the trial record,”

namely the PSR. Id. at 560.18 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

The Fifth Circuit acknowledged this issue but declined to

take a side in Huntsberry

, 956 F.3d 270. The defendant in

Huntsberry also had stipulated to a prior conviction under Old

Chief

. Id. at 285 n.8. The Fifth Circuit noted that any use of sen

‐ tencing evidence “may be in tension with our precedent that

‘we review for plain error based on the record before the district

court .’” Id. at 284, quoting United States v. Ceron

, 775 F.3d 222,

226 (5th Cir. 2014). It concluded, however, that it could avoid

the question through judicial notice of “the facts of Hunts

‐ berry’s prior felony conviction,” based not on the PSR but ra

‐

ther on the original “state court record of conviction,” as sub

‐

mi tt ed on appeal. Id. at 284–85. In the appeals before us, the

government provided state court records for potential judicial

notice only in Jones’s case, so we cannot avoid the record is

‐

sue.

We think the Second Circuit’s distinction between the

third and fourth prongs of the Olano plain

‐ error test hews

most closely to the governing precedents and best fi ts the

problem posed by Rehaif claims. The third prong “calls for the

same inquiry as ‘harmless error’ analysis, except that here the

defendant bears the burden of persuasion with respect to prej

‐

udice.” Ross

, 77 F.3d at 1540, citing Olano

, 507 U.S. at 734–35;

see also United States v. Turner

, 651 F.3d 743, 748 (7th Cir. 2011)

(“The third prong of the plain error test—whether the error

a ff ected the defendant’s substantial rights—calls for essen

‐ tially the same inquiry as harmless error analysis.”). The Su

‐

preme Court has made clear that harmless

‐ error analysis

looks only to the trial record to measure the e ff ect of trial er

‐

ror. See Neder

, 527 U.S. at 19 (in assessing “whether the jury

verdict would have been the same absent the error

... a court,

in typical appellate

‐ court fashion, asks whether the recordNos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 19

contains evidence that could rationally lead to a contrary fi nd

‐ ing with respect to the omi tt ed element”); Fulminante

, 499 U.S.

at 307–08 (“error which occurred during the presentation of

the case to the jury

... may therefore be quantitatively as

‐

sessed in the context of other evidence presented in order to

determine whether its admission was harmless beyond a rea

‐

sonable doubt”).

This restriction to the jury record fl ows logically from the

nature of a substantial

‐ rights inquiry on direct review. The

more abstract question of the defendant’s actual guilt or inno

‐

cence is not the issue. Rather, the appellate court asks what

e ff ect the error could have had on the verdict in the trial actu

‐ ally conducted. The Supreme Court explained in Sullivan v.

Louisiana that the Sixth Amendment mandates this approach:

The inquiry, in other words, is not whether, in a

trial that occurred without the error, a guilty

verdict would surely have been rendered, but

whether the guilty verdict actually rendered in

this trial was surely una tt ributable to the error.

That must be so, because to hypothesize a guilty

verdict that was never in fact rendered—no

ma tt er how inescapable the fi ndings to support

that verdict might be—would violate the jury

‐

trial guarantee.

508 U.S. 275, 279 (1993); see also Ko tt eakos v. United States

, 328

U.S. 750, 765 (1946) (“The inquiry cannot be merely whether

there was enough to support the result, apart from the phase

a ff ected by the error. It is rather, even so, whether the error

itself had substantial in fl uence.”). A defendant “need not es

‐

tablish that in a trial without the error, a reasonable jury would

have acqui tt ed him; he must demonstrate that the jury verdict20 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

in this case was actually a ff

ected by the district court’s [error].”

Ross

, 77 F.3d at 1540 (emphasis added). An e ff ect on the ver

‐

dict can of course be measured only against what the jury

saw, hence the restricted record for the substantial

‐ rights

analysis.

Pu tt ing these pieces together, because the substantial

‐ rights assessment is the same under either Rule 52(a) or Rule

52(b), both harmless

‐ error analysis and the third prong of the

plain

‐ error test look to the trial record when a defendant has

exercised his right to a trial. Our prior cases concerning both

instructional and indictment errors have respected this limit.

See, e.g., United States v. Groce

, 891 F.3d 260, 269–70 (7th Cir.

2018) (on plain

‐ error review, upholding verdict despite error

in jury instructions based on “overwhelming evidence” pre

‐

sented to the jury); United States v. Daniels

, 803 F.3d 335, 340–

41 (7th Cir. 2015) (“[A]n error involving [indictment] misjoin

‐

der ‘a ff ects substantial rights’ and requires reversal only if the

misjoinder results in actual prejudice because it ‘had substan

‐

tial and injurious e ff ect or in fl uence in determining the jury’s

verdict.’”), quoting United States v. Lane

, 474 U.S. 438, 449

(1986); United States v. Peters

, 435 F.3d 746, 754 (7th Cir. 2006)

(reviewing jury instructions for plain error “in light of the

facts of the case and the evidence presented”).

But the Supreme Court drew a clear line in Olano between

the fi rst three prongs of the plain

‐ error test and the fourth,

even devoting a separate section of the opinion to the fourth

prong. 507 U.S. at 732–37. The Court described the fi rst three

prongs as “limitation[s] on appellate authority.” Id. at 732–34.

They determine whether, under Rule 52(b), a “plain error”

that an appellate court may correct occurred at all. Even if theNos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 21

fi rst three prongs are satis fi ed, though, the appellate court re

‐

tains discretion to leave an error uncorrected: “Rule 52(b) is

permissive, not mandatory. If the forfeited error is ‘plain’ and

‘a ff ect[s] substantial rights,’ the court of appeals has authority

to order correction, but is not required to do so.” Id. at 735. In

later rulings, the Court has continued to emphasize the dis

‐ cretionary nature of prong four. See Pucke tt

, 556 U.S. at 135

(“if the above three prongs are satis fi ed, the court of appeals

has the discretion to remedy the error”); Johnson

, 520 U.S. at

467 (same); see also United States v. Luepke

, 495 F.3d 443, 451

(7th Cir. 2007) (“Having determined that the elements of plain

error are satis fi ed, we turn to our fi nal inquiry, whether, in the

exercise of discretion, we should correct the error.”).

A court should exercise its discretion at the fourth prong

only if “the error ‘seriously a ff ect[s] the fairness, integrity or

public reputation of judicial proceedings.’” Olano

, 507 U.S

. at

736 (alteration in original), quoting United States v. Atkinson

,

297 U.S. 157, 160 (1936). We explained the di ff erence between

“substantial rights,” on the one hand, and “fairness, integrity

or public reputation,” on the other, in United States v. Paladino

,

401 F.3d 471 (7th Cir. 2005). Crucially, only the la tt er has been

compared to a “miscarriage of justice,” or in other words, “a

substantial risk of convicting an innocent person.” Id. at 481,

citing among others United States v. Frady

, 456 U.S. 152, 163

n.14 (1982). To be sure, an error need not “shock the con

‐

science” to satisfy prong four, and defendants can sometimes

show an e ff ect on fairness or integrity without a claim of in

‐

nocence. See Rosales

‐ Mireles v. United States

, 138 S. Ct. 1897,

1906 (2018). Still, though a defendant’s likelihood of actual

guilt or innocence does not necessarily control the third prong

of plain

‐ error review, it may play a role at prong four: “the

fi rst element merely requires prejudice, in the sense that the22 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

verdict might have been di ff erent, whereas the second re

‐ quires con fi dence that if the error is not corrected the result

will be intolerable, such as the conviction of an innocent per

‐

son or subjecting a guilty person to an illegally long sen

‐

tence.” Paladino

, 401 F.3d at 481

. 7

In sum, we have broad discretion under prong four to

leave even plain errors uncorrected where we have no doubt

as to the ultimate result of further proceedings. We agree with

the Second Circuit that this discretion necessarily implies

some power to look beyond the trial record to assess an error’s

e ff ect, at least for the errors argued here, where the governing

law at the time of their trials ( Old Chief ) prevented the govern

‐

ment from o ff ering a great deal of circumstantial evidence

showing that these defendants knew they had been convicted

of several felonies. See Miller

, 954 F.3d at 559–60. Our deci

‐

sions in the wake of Apprendi

, 530 U.S. 466, adopted this ap

‐ proach. After Apprendi

, we reviewed for plain error many sen

‐

tences that had been enhanced based on drug quantities

found by a judge, which was no longer permissible. We often

a ffi rmed in reliance on overwhelming drug quantity evidence

presented at sentencing

, and we cited the discretionary fourth

prong as the basis for a ffi rmance. See, e.g., United States v.

Martinez

, 258 F.3d 582, 586–87 (7th Cir. 2001); United States v.

7 The likelihood of a defendant’s actual guilt is also often relevant on

collateral review, which proceeds under distinct legal standards we have

no need to address here. See Olano

, 507 U.S. at 736 (“In our collateral

‐ re

‐

view jurisprudence, the term ‘miscarriage of justice’ means that the de

‐

fendant is actually innocent.”); Henry J. Friendly, Is Innocence Irrelevant?:

Collateral Attack on Criminal Judgments

, 38 U. Chi. L. Rev. 142, 142 (1970)

(arguing that “convictions should be subject to collateral attack only when

the prisoner supplements his constitutional plea with a colorable claim of

innocence”).Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 23

Pa tt erson

, 241 F.3d 912, 913–14 (7th Cir. 2001); Nance

, 236 F.3d

at 826.

In these appeals, we con fi ne our inquiry to the trial records

and a narrow category of highly reliable information outside

the trial records: the defendants’ prior o ff enses and sentences

served in prison, as re fl ected in undisputed portions of their

PSRs. Considering these at prong four does not adversely af

‐

fect the fairness, integrity, or public reputation of judicial pro

‐ ceedings. First, the defendants had every incentive to chal

‐ lenge at sentencing any incorrect PSR information about prior

felonies given its impact on Sentencing Guidelines calcula

‐

tions and factors under 18 U.S.C. § 3553(a). Second, the trial

records were left bare of such information largely because Old

Chief stipulations barred the government from o ff ering it. Fi

‐ nally, the Supreme Court has long recognized that “the fact of

a prior conviction” does not raise the same Sixth Amendment

concerns as other facts. See Apprendi

, 530 U.S. at 490, interpret

‐ ing Almendarez

‐ Torres v. United States

, 523 U.S. 224 (1998). Few

accused defendants wish to put their full felony records on

display before a jury. We therefore conclude that we may con

‐

sider prior criminal convictions as re fl ected in PSRs in exer

‐ cising our discretion under prong four of the plain

‐ error test.

III. Application to These Appeals

We now apply the principles explained above to each of

these three appeals. We conclude that the argued Rehaif errors

do not require reversal of any of the § 922(g) convictions.

A. Carlos Maez

Maez argues that his jury instructions and indictment both

omi tt ed the element of knowledge of felon status, constituting

plain error under Rehaif

. We start with the jury instructions.24 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

1. Jury Instructions

The jury instructions at Maez’s trial said in relevant part

that the government had to prove the following facts beyond

a reasonable doubt: “1. The defendant knowingly possessed a

fi rearm; and 2. At the time of the charged act, the defendant

had previously been convicted of a felony, meaning a crime

punishable by more than a year of imprisonment.” This in

‐

struction tracked circuit precedent and the pa tt ern jury in

‐

structions in use at the time, but the government concedes

that the instruction was incomplete and that the error was

plain in light of Rehaif

. We agree with the parties that prongs

one and two of the Olano plain

‐ error test are met here because

the instruction’s second element did not include defendant’s

knowledge of his status as a felon.

The evidence from Maez’s trial, however, prevents him

from satisfying Olano ’s third prong, an e ff ect on his substan

‐

tial rights. To decide whether “an instruction that omi tt ed an

element of the crime” a ff ected substantial rights, the review

‐ ing court asks whether “it appeared ‘beyond a reasonable

doubt that the error complained of did not contribute to the

verdict obtained.’” United States v. Caira

, 737 F.3d 455, 464 (7th

Cir. 2013), quoting Neder v. United States

, 527 U.S. 1, 15 (1999).

If “overwhelming evidence” before the jury proved the omit

‐

ted element, we can usually conclude that the error did not

contribute to the verdict. See, e.g., United States v. Groce

, 891

F.3d 260, 269 (7th Cir. 2018); United States v. Ma tt hews

, 505 F.3d

698, 706 (7th Cir. 2007).

Here, the jury heard several pieces of undisputed evidence

that strongly support an inference that Maez knew he was a

felon. First, Maez stipulated under Old Chief that at the time

of the o ff ense, he had “previously been convicted of a felonyNos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 25

crime punishable by more than a year of imprisonment.” A

jury could reasonably think that a felony conviction is a life

experience unlikely to be forgo tt en. Second, Maez’s daughter

testi fi ed at trial that she had no relationship with Maez until

she was eighteen because he had been “incarcerated [her]

whole life.” Finally, Maez’s parole o ffi cer testi fi ed that he su

‐ pervised Maez after his release from prison and that Maez

was on parole at the time of the bank robbery. In the absence

of any contradictory evidence, these facts provided powerful

circumstantial evidence that Maez knew he had been con

‐

victed of at least one prior felony.

Even if Maez could show prejudice at prong three, we

would decline to exercise our discretion to correct any error

under prong four of the Olano test. Undisputed portions of the

PSR provide even more circumstantial evidence of Maez’s

knowledge. Maez, now in his early forties, has spent most of

his adult life in prison. He was convicted of his fi rst two felo

‐

nies when he was seventeen and sentenced to three years in

prison. After being released in 1999, he was convicted of an

‐

other felony fi ve months later and sentenced to twelve years

in prison. He was paroled for about a month in 2010 before he

commi tt ed two more felonies and was sentenced to eight

years in prison. We are thus con fi dent that Maez knew he was

a felon. Remand would not produce a di ff erent result. A ffi r

‐

mance in this instance protects rather than harms “the fair

‐

ness, integrity or public reputation of judicial proceedings.”

As in Johnson v. United States

, 520 U.S. 461, 470 (1997), “it

would be the reversal of a conviction such as this which

would have that e ff ect.”26 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

2. Indictment

An alleged fl aw in the indictment is a plain error only

when the indictment fails as a result “to charge the o ff ense by

any reasonable construction.” United States v. Frank Smith

, 223

F.3d 554, 571 (7th Cir. 2000); see also Grayson Enterprises

, 950

F.3d at 402. Maez’s indictment read: “CARLOS MAEZ, de

‐

fendant herein, did knowingly possess a fi rearm, after having

been convicted of a crime punishable by more than a year of

imprisonment, that had travelled through interstate or for

‐ eign commerce.” This language closely tracked the statutes

and has a reasonable construction that charges every element

of a § 922(g) o ff ense, even after Rehaif

. The mens rea term

“knowingly” came at the start of a series. A grammatically

correct and natural reading of the text applies “knowingly” to

each of the subsequent clauses. In fact, the Rehaif Court read

§ 922(g) and § 924(a)(2) in precisely this manner to require

knowledge of prohibited status in the fi rst place. See 139 S. Ct.

at 2196 (“As a ma tt er of ordinary English grammar, we nor

‐ mally read the statutory term ‘knowingly’ as applying to all

the subsequently listed elements of the crime.” (citation omit

‐ ted)). That is not the only possible construction of the indict

‐

ment, but it is at least a reasonable one.

Indictments that track the statutory language so closely

are usually su ffi cient. See United States v. Craig Smith

, 230 F.3d

300, 305 (7th Cir. 2000) (“[I]t is generally acceptable for the in

‐

dictment to ‘track’ the words of the statute itself, so long as

those words expressly set forth all the elements necessary to

constitute the o ff ense intended to be punished.”); see also

United States v. White

, 610 F.3d 956, 958–59 (7th Cir. 2010)

(same). In fact, in Frank Smith

, we held that an indictment that

omi tt ed the mens rea term—“knowingly and intentionally”—Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 27

still had a reasonable construction that charged the o ff ense

because it tracked the rest of the statutory language. 223 F.3d

at 571–72, discussing 21 U.S.C. § 861(a). Maez’s indictment

did not contain a plain error.

B. Cameron Ba tt iste

Ba tt iste, too, challenges his jury instructions and indict

‐

ment. We a ffi rm Ba tt iste’s conviction with a few variations on

our reasoning in Maez’s case.

1. Jury Instructions

As in Maez’s case, the government concedes that the jury

instructions omi tt ed knowledge of status, constituting an “er

‐

ror” that is “plain.” The third prong of the plain

‐ error test

then asks whether Ba tt iste’s substantial rights were a ff ected

based on the trial record. His trial focused on the knowing

‐ possession element, which was sharply disputed. The jury

also heard some evidence relating to his status as a felon. Like

Maez, he stipulated under Old Chief to a prior conviction. The

jury also heard that Ba tt iste a tt empted to fl ee from arresting

agents. He then started gesturing toward men back in his

apartment complex, apparently seeking to draw their a tt en

‐

tion to a bag of fi rearms lying on the lawn that the agents had

not yet noticed. This testimony was at least probative of the

fact that Ba tt iste knew he had a prohibited status when he

possessed the fi rearms. Still, the trial evidence was not over

‐ whelming on the new Rehaif element of knowledge of status

as a felon. Cf. United States v. Miller

, 954 F.3d 551, 559 (2d Cir.

2020) (declining to resolve “di ffi cult” substantial

‐ rights anal

‐ ysis on plain

‐ error review after Rehaif ).

Even if we assume Ba tt iste could satisfy the third prong of

plain

‐ error review, we decline to exercise our discretion to28 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

correct this error under the fourth prong because there is no

risk of a “miscarriage of justice” in Ba tt iste’s case. See United

States v. Paladino

, 401 F.3d 471, 481 (7th Cir. 2005). Ba tt iste’s

PSR, to which he lodged no objection, shows that he had at

least four prior felony convictions. He served a year or more

in prison on three of those convictions. In fact, Ba tt iste had

once been charged under Illinois law on two counts of the

crime at issue here, felon in possession of a fi rearm. There is

no doubt that a jury permi tt ed to hear such evidence would

fi nd Ba tt iste knew his felon status. The plain error in the jury

instructions did not seriously a ff ect the fairness, integrity, or

public reputation of judicial proceedings. Olano

, 507 U.S. at

736.

2. Indictment

Ba tt iste’s indictment was phrased di ff erently than Maez’s,

with the word “knowingly” placed later in the sentence. Bat

‐

tiste’s indictment read: “CAMERON BATTISTE

... having

previously been convicted of a crime punishable by a term of

imprisonment exceeding one year, did knowingly possess in

and a ff ecting interstate commerce a fi rearm

... .” Here,

“knowingly” came after the fact of the prior felony conviction,

and a typical reader would not apply it to the earlier clause

set o ff by commas. We are not sure it would be a “reasonable

construction” to do so. Frank Smith

, 223 F.3d at 571. We as

‐

sume there was a plain error here. 8

8 The Second Circuit has held that similar indictment wording did not

fail to confer jurisdiction on the district court since the language resembled

what the Supreme Court was interpreting in Rehaif

. See United States v.

Balde

, 943 F.3d 73, 89–90 (2d Cir. 2019). Unlike the Second Circuit, how

‐

ever, we do not recognize any indictment errors as jurisdictional, so Balde

offers limited guidance. See United States v. Muresanu

, 951 F.3d 833, 839Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 29

But even assuming a plain error in the indictment and

even assuming an e ff ect on Ba tt iste’s substantial rights, we

still decline to exercise our discretion to correct the error. As

with the missing element in the jury instructions, it is clear

that the wording of the indictment did not undermine the

fairness or integrity of judicial proceedings. Considering the

evidence heard by the trial jury and Ba tt iste’s extensive prior

criminal history laid out in detail in his PSR, “we can be con

‐

fi dent in retrospect that the grand jury (which acts under a

lower burden of persuasion) would have reached the same

conclusion.” United States v. Pa tt erson

, 241 F.3d 912, 914 (7th

Cir. 2001). If we remanded, there is no chance the result would

change.

C. Ma tt hew Jones

Jones’s appeal raises challenges to his jury instructions

and indictment parallel to those of Maez and Ba tt iste. Jones

also appeals the denial of his motion for a judgment of acquit

‐

tal at the close of evidence. He also challenges his sentence

because the district court lengthened his prison term to allow

more rehabilitation through prison programs.

1. Rule 29 Motion

We start with the denied Rule 29 motion for judgment of

acqui tt al. As explained above, Jones preserved his challenge

to the su ffi ciency of the evidence under Rehaif with a general

motion. We thus review the district court’s denial de novo:

“we do not defer to the district judge’s decision.” United States

v. Garcia

, 919 F.3d 489, 496 (7th Cir. 2019). Nevertheless, the

(7th Cir. 2020) (“[D]efects in an indictment do not deprive the court of sub

‐ ject

‐ matter jurisdiction, and this is so even when the defect is a failure to

state a federal offense.”).30 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

standard remains demanding for criminal defendants: “We

‘consider the evidence in the light most favorable to the Gov

‐

ernment,’ and will reverse ‘only when the record contains no

evidence, regardless of how it is weighed, from which the jury

could fi nd guilt beyond a reasonable doubt.’” United States v.

Dewi tt

, 943 F.3d 1092, 1096 (7th Cir. 2019), quoting United

States v. Blassingame

, 197 F.3d 271, 284 (7th Cir. 1999). This ap

‐ peal turns on whether the evidence presented to the jury per

‐

mits an inference beyond a reasonable doubt that Jones knew

he had commi tt ed a felony. The government tried the case

without knowing it needed to prove Jones had that

knowledge, but we fi nd that the evidence at trial did permit,

but not require, such an inference.

The fi rst piece of evidence was the Old Chief stipulation,

which said: “Prior to July 15, 2018, the defendant, Ma tt hew R.

Jones, had been convicted of a felony crime that was punish

‐

able by a term of imprisonment of more than one year.” A ju

‐

ror could apply her common sense and conclude that it was

highly likely that Jones remembered having been convicted of

a felony, a major life event. The other important evidence was

Jones’s behavior at the time of the search and arrest. An o ffi cer

testi fi ed at trial that when Jones was fi rst presented with the

search warrant for his house, he denied having a key. He in

‐

sisted it was his mother’s house. But the o ffi cers found that

the keys in Jones’s hands opened not only the front door but

also locked interior doors and a padlocked room that con

‐

tained the fi rearms. Without any contradicting or impeaching

evidence on these points, the combination of the Old Chief

stipulation and the false denials about the house where Jones

possessed fi rearms was su ffi cient to permit the required infer

‐

ence of knowledge of his status as a felon.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 31

To be clear, we are not saying that an Old Chief stipulation,

standing alone, would show conclusively that a Rehaif error in

jury instructions did not a ff ect substantial rights. See United

States v. Hollingshed

, 940 F.3d 410, 415 (8th Cir. 2019) (in plain

‐

error review of Rehaif error in jury instructions, “we will as

‐

sume that Hollingshed’s stipulation does not resolve the issue

of whether he knew he was a felon”); United States v. Benamor

,

937 F.3d 1182, 1188–89 (9th Cir. 2019) (assuming “that the stip

‐

ulation does not end the discussion as to Defendant’s

knowledge of his status as a felon,” but fi nding plain

‐ error test

was not satis fi ed where PSR showed defendant had seven

prior felony convictions).

We also do not have to go quite so far as to hold that an

Old Chief stipulation standing alone is su ffi cient to infer, be

‐ yond a reasonable doubt, a defendant’s knowledge of his sta

‐

tus as a felon at the time of the charged possession of the fi re

‐

arm. Cf. United States v. Ward

, 957 F.3d 691, 696 (6th Cir. 2020)

(holding that stipulation alone is su ffi cient). We decide here

that Jones’s Old Chief stipulation, combined with the evidence

of his evasive behavior at the time of the search, was su ffi cient

to permit that inference of his knowledge. See generally

McFadden v. United States

, 135 S. Ct. 2298, 2304 n.1 (2015) (not

‐ ing that for “most mens rea requirements, the Government can

prove the requisite mental state through either direct evi

‐

dence or circumstantial evidence,” including “evasive behav

‐

ior with respect to law enforcement”). Although § 922(g) re

‐ quires that the government prove only knowledge of prohib

‐

ited status, not knowledge of the prohibition itself, see above

at 5–8, facts suggesting the defendant knew that he could not

lawfully possess fi rearms point toward knowledge of his sta

‐

tus.32 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

We have said that a “judge facing a Rule 29 motion in a

criminal case might bene fi t from fi rst asking whether, if the

evidence had been presented in a civil case, it would be su ffi‐

cient to send the case to the jury,” in other words, su ffi cient to

defeat a motion for summary judgment. Garcia

, 919 F.3d at

497–98. Jones’s evasive behavior, combined with his stipula

‐

tion to a prior felony conviction, would put the issue of his

knowledge in the province of the jury even under Rehaif

‐ com

‐ pliant instructions. Denial of the Rule 29 motion was appro

‐ priate. 9

2. Jury Instructions and Indictment

Jones’s challenges to the jury instructions and indictment

are indistinguishable from Ba tt iste’s. As to the jury instruc

‐

tions, we do not resolve whether the missing knowledge ele

‐

ment a ff ected Jones’s substantial rights. The evidence at trial

permi tt ed a fi nding of guilt on the missing element, but it was

not so overwhelming as to eliminate any possibility of an ef

‐

fect on the verdict. Instead, we decline to exercise our discre

‐

tion under prong four of the plain

‐ error test in light of our

limited review of Jones’s PSR. His criminal history includes

multiple felony convictions, at least one of which led to his

spending over one year in prison. He had even been convicted

before of unlawful possession of a weapon by a felon under

Illinois law and sentenced to four years in prison on that

charge. We are con fi dent that when he possessed the charged

9 Because sufficient evidence supported the jury’s verdict, we do not

address the government’s argument that Jones invited any error in the de

‐

nial of his Rule 29 motion. We also do not address Jones’s contention on

appeal that his limited intellect rendered him unaware of his status be

‐

cause the jury heard no such evidence.Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049 33

fi rearms in this case, he knew he had been convicted of a prior

felony.

Like Ba tt iste’s indictment, Jones’s indictment charged that

he, “having been previously convicted in a court in the State

of Illinois of a crime punishable by imprisonment for a term

exceeding one year, did knowingly possess, in and a ff ecting

commerce, fi rearms

... .” As in Ba tt iste’s appeal, it might not

be a “reasonable construction” of the indictment to apply the

“knowingly” term to the preceding clause concerning the fact

of a prior conviction. Frank Smith

, 223 F.3d at 571. But as sum

‐

marized above, Jones’s PSR shows an extensive criminal his

‐

tory that leaves no doubt as to his knowledge of his status as

a felon or as to the result of impaneling a second grand jury.

We decline to exercise our discretion to correct any error in

the indictment.

3. Sentence

Finally, Jones challenges his sentence, arguing that the dis

‐

trict court commi tt ed a Tapia error. Sentencing courts are pro

‐

hibited from imposing a term of incarceration for rehabilita

‐

tive ends because “imprisonment is not an appropriate means

of promoting correction and rehabilitation.” 18 U.S.C.

§ 3582(a). The Supreme Court held in Tapia v. United States

,

564 U.S. 319, 334 (2011), that this statute “prevents a sentenc

‐ ing court from imposing or lengthening a prison term because

the court thinks an o ff ender will bene fi t from a prison treat

‐

ment program.”

Jones argues, and the government and we agree, that the

judge’s explanation for his sentence showed a Tapia error. See

Sent. Tr. at 21, 29. When a term of imprisonment is improperly

imposed for rehabilitative purposes, remand for resentencing34 Nos. 19

‐ 1287, 19

‐ 1768, & 19

‐ 2049

is the appropriate remedy. See United States v. Kopp

, 922 F.3d

337, 343 (7th Cir. 2019).

Conclusion

The judgment of the district court in United States v. Maez

,

No. 19

‐ 1287, is AFFIRMED. The conviction in United States v.

Jones

, No. 19

‐ 1768, is AFFIRMED, but the sentence is

VACATED and the case is remanded to the district court for

resentencing. The judgment of the district court in United

States v. Ba tt iste

, No. 19

‐ 2049, is AFFIRMED.