IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50227

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ROBERT LOUIS BRANDON, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

On December 17, 2018, Robert Louis Brandon pleaded guilty to being a 

felon in possession of a firearm. After Brandon’s plea, the Supreme Court 

decided Rehaif v. United States, which established for the first time that the 

government must prove that the person charged with being a felon in 

possession of a firearm “knew he had the relevant status when he possessed” 

the firearm. 139 S. Ct. 2191, 2194 (2019). Brandon argues that the district 

court plainly erred by accepting his guilty plea because the record does not 

establish that, at the time he possessed the firearm, he knew he had previously 

been convicted of a qualifying felony offense. Because the record shows that 

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2020

Lyle W. Cayce

Clerk

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the district court’s error did not affect Brandon’s substantial rights, see United 

States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020), we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Guilty Plea

On October 24, 2018, a grand jury returned a one-count indictment 

charging Brandon, in pertinent part, as follows: 

[O]n or about September 23, 2018, in the Western District of 

Texas, the Defendant, ROBERT LOUIS BRANDON, who having 

been convicted of a crime punishable by imprisonment for a term 

exceeding one year, namely for the felony offense of Burglary of a 

Building on or about June 25, 2008 in a State District [sic] Court 

for Midland County, Texas . . . did knowingly possess . . . a firearm, 

to wit: a .38 caliber Colt Revolver.

On December 17, 2018, Brandon pleaded guilty to being a convicted felon in 

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The 

plea was reached without a plea agreement.

At the plea hearing, Brandon and the government agreed to the following 

stipulated facts. At 11:06 p.m. on September 23, 2018, police officers in 

Midland, Texas stopped Brandon for a traffic violation. Brandon stated he did 

not have a driver’s license or identification and provided a false name and date 

of birth to the officer. After a drug dog alerted on the vehicle, officers searched 

it and discovered suspected methamphetamine, drug paraphernalia, and a .38 

caliber Colt Revolver, which was under the front passenger seat. Brandon 

admitted that “he had the gun and had handed it to the passenger to be 

concealed under the seat.” Brandon acknowledged the accuracy of these facts 

under oath at rearraignment. A criminal history check revealed that Brandon 

“had been previously convicted of the felony offense Burglary of a Building” in 

Texas state court on June 25, 2008.

The magistrate judge found that a factual basis supported Brandon’s 

guilty plea. The district court thereafter adjudged Brandon guilty. On 

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March 12, 2019, the district court sentenced Brandon to 30 months in prison 

followed by a 3-year term of supervised release. At the sentencing hearing, 

Brandon was awarded credit for acceptance of responsibility. On March 15, 

2019, Brandon appealed.

B. The PSR

Brandon filed no objection to the description of his offense conduct listed 

in the presentence report (PSR). The PSR documented Brandon’s false 

statements to the police, including false statements regarding his name and 

date of birth. The PSR also explained that Brandon told police that, as he was 

being pulled over, he “placed” the firearm next to the passenger and instructed 

the passengers to cooperate with his lies to the police. Finally, the PSR noted 

that Brandon “was previously convicted of Burglary of a Building on June 25, 

2008” in Texas. Brandon’s sole objection to the PSR was to its proposed 

enhancement for possession of a firearm in connection with another felony 

offense. Brandon no longer pursues that objection.

C. The Underlying Burglary of a Building Conviction

On June 25, 2008, Brandon was convicted of Burglary of a Building.1

Burglary of a Building is a felony in Texas. Brandon was sentenced to three 

years of probation. The “Judgment of Conviction” for that case bears Brandon’s 

signature and thumbprints. The judgment identifies Burglary of a Building as 

a “state jail felony offense” on three separate occasions, including in its title.

The judgment also states, on two occasions, that the punishment assessed was

18 months in jail, “suspended” to 3 years of “community supervision.” On May 

1 This court granted the government’s unopposed motion to supplement the record on 

appeal with documents used by the probation office to prepare the PSR, including state court 

conviction documentation. FED. R. APP. P. 10(e)(2)(C). This information comes from those 

state court documents, which “we may take judicial notice of . . . as matters of public record.” 

In re Deepwater Horizon, 934 F.3d 434, 440 (5th Cir. 2019); see also Odle v. Wal-Mart Stores, 

Inc., 747 F.3d 315, 316 n.1 (5th Cir. 2014).

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7, 2009, Brandon’s probation was revoked for “failing to report to a probation 

officer, failing to pay fees and fines, failing to complete community service, and 

changing residence without permission.” He was then sentenced to seven 

months in prison. When his probation was revoked, Brandon again 

acknowledged, by signature and thumbprint, that his initial sentence was 18 

months in jail, suspended to 3 years of community supervision.

II. DISCUSSION

A. Jurisdiction

The district court had jurisdiction under 18 U.S.C. §§ 3231 and 3438.

This court has appellate jurisdiction under 28 U.S.C. § 1291. Brandon’s notice 

of appeal was timely.

B. Standard of Review

Brandon presents a single issue on appeal: whether the district court 

plainly erred when it found the factual basis supports his guilty plea, 

particularly in light of the Supreme Court’s subsequent decision in Rehaif.

Brandon accepts that our standard of review is for plain error. United States 

v. Lavalais, 960 F.3d 180, 186 (5th Cir. 2020). “To reverse under plain error 

review, we must find (1) an error, (2) that is clear or obvious, and (3) that affects 

the defendant’s substantial rights.” Id. If those conditions are met, this court 

“‘should’ correct [the error] ‘if the error seriously affects the fairness, integrity, 

or public reputation of judicial proceedings.’” Rosales-Mireles v. United States, 

138 S. Ct. 1897, 1906 (2018) (quoting United States v. Olano, 507 U.S. 725, 736

(1993)); see also Puckett v. United States, 556 U.S. 129, 135 (2009).

C. Rehaif v. United States

After Brandon pleaded guilty and was sentenced, and while his appeal 

was pending, “the Supreme Court interpreted 18 U.S.C. §§ 922(g) and 924(a)(2) 

to require proof that the defendant knew he was a felon” or otherwise knew he 

was a person prohibited from possessing a firearm. Lavalais, 960 F.3d at 186; 

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see Rehaif, 139 S. Ct. at 2200 (government must prove that the defendant 

“knew he belonged to the relevant category of persons barred from possessing 

a firearm”). The Supreme Court noted that the scienter requirement in § 922(g) 

“helps to separate wrongful from innocent acts.” Rehaif, 139 S. Ct. at 2197.

This is because, if a defendant does not have knowledge of his prohibited 

status, “the defendant may well lack the intent needed to make his behavior 

wrongful.” Id. Indeed, the Supreme Court noted that Congress might not, in 

all circumstances, “have expected defendants under § 922(g) . . . to know their 

own statuses.” Id. As an example, the Supreme Court stated that § 922(g) 

should not apply to “a person who was convicted of a prior crime but sentenced 

only to probation, who does not know that the crime is ‘punishable by 

imprisonment for a term exceeding one year.’” Id. at 2198 (quoting § 922(g)(1)).

While the evidence must “establish [the] defendant’s knowledge of 

status,” the Supreme Court “express[ed] no view . . . about what precisely the 

Government must prove to establish a defendant’s knowledge of status.” Id. at 

2200 (emphasis added); see also id. at 2198 (“[W]e doubt that the obligation to 

prove a defendant’s knowledge of his status will be as burdensome as the 

Government suggests.”).

D. Plain Error Analysis

“On plain-error review, a defendant ‘must first establish an error.’”

United States v. Ortiz, 927 F.3d 868, 872 (5th Cir. 2019) (quoting United States 

v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019)). To establish an error in this 

context, Brandon must show that the factual basis was insufficient to support 

his plea. United States v. Angeles-Mascote, 206 F.3d 529, 530–31 (5th Cir. 

2000). “Before entering judgment on a guilty plea, the [district] court must 

determine that there is a factual basis for the plea.” FED. R. CRIM. P. 11(b)(3).

“In determining the adequacy of a factual basis, the trial court must compare 

‘(1) the conduct to which the defendant admits with (2) the elements of the 

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offense charged in the indictment or information.’” United States v. GarciaPaulin, 627 F.3d 127, 131 (5th Cir. 2010) (quoting United States v. Marek, 238 

F.3d 310, 315 (5th Cir. 2001) (en banc)).

Here, the district court did not explicitly consider whether the factual 

basis provided sufficient evidence that Brandon knew, at the time he possessed 

the firearm, that he had “been convicted . . . of, a crime punishable by 

imprisonment for a term exceeding one year” because Rehaif had not yet been 

decided. § 922(g)(1); Rehaif, 139 S. Ct. at 2200. Nonetheless, the district court’s 

error is assessed at “the time of appellate consideration.” Johnson v. United 

States, 520 U.S. 461, 468 (1997); Griffith v. Kentucky, 479 U.S. 314, 328 (1987); 

see also Lavalais, 960 F.3d at 187 (recognizing that “Rehaif applies to cases on 

direct appeal”). Thus, the district court erred and this error is clear under 

current law.

However, Brandon is not entitled to relief because he has not shown “a 

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

plea” and therefore has not shown the district court’s error affected his 

substantial rights. United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 

2006) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). 

When determining whether Brandon would have entered the plea but for the 

district court’s error, “we may look beyond those facts admitted by the 

defendant during the plea colloquy and scan the entire record for facts 

supporting his conviction,” even if the district court did not do so. Ortiz, 927 

F.3d at 873 (quoting United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010)).

Here, “the record as a whole establishes that [Brandon]

had . . . knowledge” of his status as a convicted felon when he possessed the 

firearm, meaning he cannot show a reasonable probability that he would not 

have pleaded guilty absent the district court’s error. United States v. Johnson, 

781 F. App’x 370, 371 (5th Cir. 2019), cert. denied No. 19-7382, 2020 WL 

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3405890, at *1 (U.S. June 22, 2020); Hicks, 958 F.3d at 402. The record 

demonstrates that, when he pleaded guilty, the State of Texas informed 

Brandon that his Burglary of a Building conviction was a “state jail felony 

offense” punishable by 18 months in jail.2 Brandon acknowledged this fact by 

signing the related “Judgment of Conviction,” which, again, numerous times,

identified Burglary of a Building as a “felony offense.” And Brandon was

“admonished” concerning “the range of punishment” at his guilty-plea hearing.

When his probation was revoked, Brandon again acknowledged that his 

Burglary of a Building conviction was a “state jail felony offense” punishable 

by 18 months in jail. Thus, there is no doubt that Brandon knew of his 

prohibited status at the time of his 2008 Burglary of a Building conviction and 

the 2009 parole revocation.3

However, Brandon contends that it is “unclear” whether he 

“remembered” his status some ten years later, when he was discovered in 

possession of a firearm, in October 2008. It is true that the Supreme Court 

specifically noted in Rehaif that it is unlikely Congress expected all defendants 

in § 922(g) cases “to know their own statuses.” Rehaif, 139 S. Ct. at 2197.

Notably, worried about a circumstance where a defendant was sentenced “only 

2 As noted above, we can “scan the entire record for facts supporting” the conviction. 

Ortiz, 927 F.3d at 873 (citation omitted). The government moved, unopposed, to supplement 

the record on appeal with documentation related to Brandon’s state conviction for Burglary 

of a Building and this court granted that motion. FED. R. APP. P. 10(e)(2)(C). These documents 

are judicially noticeable, In re Deepwater Horizon, 934 F.3d at 440, and we have relied on 

“documentation related to . . . state convictions” in other cases assessing the sufficiency of the 

factual basis supporting a § 922(g) guilty plea. See United States v. Contreras-Orosco, 791 F. 

App’x 489, 489 (5th Cir. 2020). 

3 Moreover, Brandon admitted in his factual resume and during the plea colloquy that 

he “had been previously convicted” of a “felony offense” in 2008. However, because these 

statements, standing alone, may not establish Rehaif scienter at the time of his offense, 

compare United States v. Johnson, 781 F. App’x 370, 371 (5th Cir. 2019), cert. denied No. 19-

7382, 2020 WL 3405890, at *1 (U.S. June 22, 2020) with United States v. Denson, 774 F. 

App’x 184, 185 (5th Cir. 2019), we do not rest our opinion on Brandon’s rearraignment 

statements.

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to probation” for the predicate offense and “does not know that the crime is 

‘punishable by imprisonment for a term exceeding one year,’” id. at 2198 

(citation omitted), the Supreme Court highlighted that circumstantial evidence 

could be used to prove knowledge. See id.

Here, circumstantial evidence shows that Brandon was aware of his 

prohibited status when he possessed the firearm. Brandon admitted that, as 

police approached, he “handed [the firearm] to the passenger to be concealed 

under the seat.” Brandon also repeatedly lied to the police about his name and 

date of birth. Coupled with the felony clarity in his state court documents, 

Brandon gives no convincing reason why he would have behaved the way that 

he did, and we find that this conduct is circumstantial evidence that Brandon 

was aware of his status as a convicted felon. See Lavalais, 960 F.3d at 187

(evidence that defendant asked someone else to falsely claim ownership of the 

firearm following arrest showed defendant “knew full well that he was a 

convicted felon prohibited from possessing a firearm”); Johnson, 781 F. App’x 

at 371 (evidence that defendant “feared police discovery of a firearm at the time 

of his arrest for the crime of conviction” contributed to finding of knowledge).

With this evidence at the government’s disposal, Brandon cannot show a 

“reasonable probability” that he would have gone to trial if he had been 

informed of the Rehaif scienter requirement. 

Brandon’s state court documents, and especially his behavior at the time 

of his arrest, establish that Brandon had knowledge of his status as a convicted 

felon when he possessed the firearm. Hicks, 958 F.3d at 401; Johnson, 781 F. 

App’x at 371. Therefore, there is not a “reasonable probability” that Brandon 

would have refused to enter the plea absent the district court’s error and

Brandon cannot show that the error affected his substantial rights. Thus, the 

district court’s acceptance of the factual basis for Brandon’s guilty plea was not 

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plain error. See Hicks, 958 F.3d at 401; Lavalais, 960 F.3d at 187; Johnson, 

781 F. App’x at 371.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.

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