United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-2914

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Justin Dwight Sholley-Gonzalez

lllllllllllllllllllllDefendant - Appellant

 ____________

Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

 ____________

 Submitted: December 18, 2020

Filed: May 10, 2021

____________

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

____________

SMITH, Chief Judge.

An Iowa state court issued a protection order against Justin Dwight SholleyGonzalez. In issuing the order, the court did not expressly designate the protected

person as an “intimate partner” under 18 U.S.C. § 922(g)(8), though the protected

person was in fact an intimate partner. Under § 922(g)(8), a person subject to a court
order protecting an intimate partner is restricted from possessing firearms and

ammunition.

Sholley-Gonzalez attempted to purchase a firearm. While doing so, he failed

to indicate on a federal firearm-transaction form that he was subject to a court order

protecting an intimate partner. Law enforcement believed his omission violated 18

U.S.C. § 922(a)(6). As a result, law enforcement obtained and executed a search

warrant for Sholley-Gonzalez’s house. The search revealed shotgun ammunition.

Sholley-Gonzalez was charged and indicted under §§ 922(g)(8) and 922(a)(6).

He moved to dismiss the indictment for failure to state an offense because the

protection order against him did not affirmatively indicate it protected an intimate

partner. The district court denied his motion and convicted him on both counts after

a bench trial. After his conviction but before sentencing, Sholley-Gonzalez moved for

acquittal or a new trial based on the Supreme Court’s decision in Rehaif v. United

States, 139 S. Ct. 2191 (2019), which clarified that the government must prove that

the defendant had knowledge of his restricted status. Sholley-Gonzalez argued that

Rehaif invalidated his conviction because the government had not proved that he

knew that his status restricted his ability to possess firearms and ammunition under

§ 922(g). The district court denied his motion. At sentencing, Sholley-Gonzalez

argued that his sentence should be reduced pursuant to the sporting-use reduction in

§ 2K2.1(b)(2) of the United States Sentencing Guidelines. The district court declined

to apply the reduction.

Sholley-Gonzalez appealed. We affirm the district court’s decisions regarding

Sholley-Gonzalez’s motions but remand for resentencing as to district court’s

application of the sporting-use reduction.

-2-
I. Background

In October 2017, an Iowa court issued a protection order that “restrained

[Sholley-Gonzalez] from committing any acts of abuse or threats of abuse” and “from

any contact with [S.O.].” Stipulation, Ex. 1, at 1, United States v. Sholley-Gonzalez,

No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-2. The first page of

the order form provided, “Warnings to Defendant,” in bolded font. Id. (emphasis

omitted). One of these three warnings stated, “Federal law provides penalties for

possessing, transporting, shipping, or receiving any firearm or ammunition (18 U.S.C.

§ 922(g)(8)).” Id. (emphasis omitted).

The second page of the order form included a list of items to be checkmarked

if applicable. The first section provided two mutually exclusive boxes to be checked,

based on the identity of the protected party. One box was to be checked if the

protected party was an “intimate partner” “as defined in 18 U.S.C. § 921(a)(32)

(‘“intimate partner” means, with respect to a person, the spouse of the person, a

former spouse of the person, an individual who is a parent of a child of the person,

and an individual who cohabitates or has cohabited with the person’).” Id. at 2. The

other box was to be checked if “the relationship status of the defendant and protected

party is other than the federal ‘Intimate Partner’ definition.” Id. Neither box was

checked.

Further, if the court had checked the “intimate partner” box, the form explained

that “the court must check box 5, prohibiting the defendant from possessing

firearms.” Id. (emphasis omitted). Box 5 read, “If checked, the Defendant shall not

possess firearms while this order is in effect as a condition of release. . . . The

defendant is advised that the issuance of this protective order may also affect the right

to possess or acquire a firearm or ammunition under federal law.” Id. The court did

not check box 5.

-3-
Although the order form did not indicate the status of S.O. and SholleyGonzalez’s relationship, their relationship met the federal “intimate partner”

definition during the relevant period.

In February 2018, Sholley-Gonzalez went to a Walmart store and attempted to

purchase a firearm. An employee said that Sholley-Gonzalez “asked for the ‘cheapest

gun’ Walmart sold,” so the employee showed him three 12-gauge shotguns. Final

Presentence Investigation Report 6, United States v. Sholley-Gonzalez, No. 4:18-cr00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 76. The Walmart employee said that

Sholley-Gonzalez attempted to purchase a shotgun, and Sholley-Gonzalez stipulated

to that fact as well. As part of the purchase process, Sholley-Gonzalez filled out a

mandatory firearm-transaction form. One of the questions on the form asked, “Are

you subject to a court order restraining you from harassing, stalking, or threatening

. . . an intimate partner . . . ?” Stipulation, Ex. 2, at 1, United States v. SholleyGonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-3. SholleyGonzalez answered, “No.” Id. He also purchased a BB gun for his daughter.

In April 2018, law enforcement conducted a warrant-authorized search of

Sholley-Gonzalez’s home and found 36 rounds of shotgun ammunition, including

.410-gauge rounds and 20-gauge rounds. They found no firearms. Relevant to this

appeal, Sholley-Gonzalez was indicted on one count of illegally possessing

ammunition, based on being subject to a court order protecting an intimate partner,

and one count of making a false statement during the purchase of a firearm, based on

his answer to the firearm-transaction form.

Sholley-Gonzalez moved to dismiss the indictment for failure to state an

offense. He claimed that he “was not subject to a restraining order of a nature

prohibiting his possession of firearms or ammunition” because the protection order

did not affirmatively identify S.O. as an intimate partner. Br. in Supp. of Mot. to

Dismiss at 2, United States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1

-4-
(S.D. Iowa 2019), ECF No. 29-1 (emphasis omitted). The district court denied

Sholley-Gonzalez’s motion for two alternative reasons: (1) The indictment

sufficiently pleaded the required elements of the offenses because the sufficiency of

the indictment is determined by the face of the indictment, not the underlying

evidence; and (2) the protection-order omissions were not fatal to the indictment’s

sufficiency because § 922(g)(8) requires that the protected party be an intimate

partner, not that the court order identify the protected party as an intimate partner.

The case proceeded to a bench trial on stipulated facts, and the district court

convicted Sholley-Gonzalez on both counts. Before sentencing, Sholley-Gonzalez

moved for a judgment of acquittal or a new trial. Both requests were based on Rehaif.

Rehaif, decided after his conviction, explains that the government must prove that a

defendant knows his restricted status under § 922(g). 139 S. Ct. at 2200. The district

court denied Sholley-Gonzalez’s motion. It held that the Rehaif error was harmless

because Sholley-Gonzalez knowingly made the false statement that he was not

subject to a protection order protecting an intimate partner. Thus, the district court

explained that it had already determined Sholley-Gonzalez’s knowledge of his status

for the § 922(a)(6) conviction. Alternatively, the district court found that SholleyGonzalez stipulated to facts that provided sufficient evidence to support the court’s

knowledge finding.

At sentencing, Sholley-Gonzalez argued that the district court should apply the

§ 2K2.1(b)(2) sporting-use reduction, which lowers a defendant’s offense level to six

if the defendant possessed all the firearms and ammunition connected to the firearm

offense solely for lawful sporting use. The district court received letters of support

for Sholley-Gonzalez from his daughter, girlfriend, cousin, mother, and previous

employer. Of those, two mentioned Sholley-Gonzalez’s love of hunting and time

spent shooting with his daughter. He also offered evidence that he received firearmhunting licenses on a regular basis from 2007 to 2014 and bow-hunting licenses for

-5-
2019 and 2020. And he included pictures of him and his daughter hunting, fishing,

and using firearms for lawful sporting purposes.

Sholley-Gonzalez also testified at the sentencing hearing. He testified that he

is “an avid hunter” and has engaged in “target shoot[ing].” Sentencing Tr. 17, United

States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF

No. 96. He said he last owned a firearm in 2014 or 2015, though he still went bow

hunting, which was consistent with his hunting license records. He had also used

firearms in February 2018 for target shooting. When asked about the ammunition that

law enforcement found at his house, Sholley-Gonzalez replied that “[i]t was leftover

ammunition from previous hunting or target shooting.” Id. at 19. He said that he

“[n]ever” used the ammunition for any reason other than hunting and target shooting

and that he had been shooting with his daughter. Id. at 20–21. Further, he had never

been convicted or charged with an offense involving a firearm.

On cross-examination, the government’s questioning highlighted SholleyGonzalez’s previous offenses. First, it elicited the conduct leading to the protection

order: Sholley-Gonzalez stalked S.O., posted nude photographs of her on social

media, and created a fake Craigslist profile of S.O. to send men to her house, and he

sent food delivery drivers and prostitutes to S.O.’s father’s house. Second, SholleyGonzalez had pleaded guilty to harassing S.O. in 2017. Third, he had pleaded guilty

to assault in 2017. Fourth, Sholley-Gonzalez explained that he had pleaded guilty to

assaulting a police officer in 2014, but he asserted that he “provided false testimony”

and did not actually commit that crime. Id. at 32. The government provided no

evidence that Sholley-Gonzalez had possessed this ammunition for nonsporting

purposes or that he had ever possessed any firearm or ammunition for nonsporting

purposes.

The district court held that Sholley-Gonzalez did not meet his burden to show

that the sporting-use reduction applied. The court relied on the contradiction between

-6-
Sholley-Gonzalez’s statement and the Walmart employee’s, Sholley-Gonzalez’s prior

offenses, and his lack of credibility. And it found that his love of hunting and fishing

had nothing to do with the purpose of the ammunition he possessed and the firearm

he attempted to possess and that his evidence was unpersuasive because it was selfserving.

The district court concluded by stating that its decision did not turn on whether

Sholley-Gonzalez possessed the ammunition for nonsporting purposes or attempted

to purchase a firearm for nonsporting purposes. It noted that Sholley-Gonzalez did

one or the other for nonsporting purposes, so independently analyzing his conduct

would be fruitless, even if the parties had raised the issue. It stated:

Now, the question of whether or not the shotgun shells versus the

firearm, which was possessed for which purpose, the parties haven’t

broken that down in terms of whether or not there’s some argument that

one was possessed for a lawful sporting purpose and the other wasn’t.

Here the standard is that all ammunition and firearms have to be

possessed solely for lawful sporting purposes, and the court cannot

make that finding.

Id. at 41.

The district court calculated Sholley-Gonzalez’s offense level as 12 and his

criminal history category as VI. Thus, his Guidelines range was 30–37 months’

imprisonment, and the district court sentenced him to 30 months’ imprisonment. This

appeal followed. 

II. Discussion

Sholley-Gonzalez seeks reversal, asserting three errors by the district court.

First, he avers that the indictment against him should have been dismissed because

it failed to state an offense under § 922(g). Second, he contends that, based on

-7-
Rehaif, he should have been granted a judgment of acquittal or a new trial. Third, he

argues that § 2K2.1(b)(2)’s sporting-use reduction should have applied to his

sentencing calculation.

A. Failure to State an Offense

Sholley-Gonzalez mounts two arguments that the indictment failed to state an

offense. First, he argues that the protection order’s failure to affirmatively identify

S.O. as an intimate partner means it falls short of § 922(g)(8)’s requirements.

Second, he argues that the absence of a designation of S.O. as an intimate partner

violated his right to notice protected under the Constitution’s Due Process Clause.

We review the district court’s denial of a motion to dismiss an indictment for

failure to state an offense de novo. United States v. Flute, 929 F.3d 584, 587 (8th Cir.

2019). An indictment survives a motion to dismiss for failure to state an offense if

“the indictment contains a facially sufficient allegation.” United States v. Ferro, 252

F.3d 964, 968 (8th Cir. 2001). Sholley-Gonzalez urges us go beyond the indictment

and review the underlying protection order, but when courts go beyond the face of

the indictment, they are testing the sufficiency of the evidence, not whether the

indictment stated an offense. Id. However, challenges to the evidence’s “sufficiency

[are] tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure

29,” not by a “dismissal of an indictment on the basis of predictions as to what the

trial evidence will be.” Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 661

(3d Cir. 2000)). “[F]ederal criminal procedure does not ‘provide for a pre-trial

determination of sufficiency of the evidence.’” Id. (quoting United States v. Critzer,

951 F.2d 306, 307–08 (11th Cir. 1992)).

We have explained that 

[a]n indictment is legally sufficient on its face if it contains all of the

essential elements of the offense charged, fairly informs the defendant

-8-
of the charges against which he must defend, and alleges sufficient

information to allow a defendant to plead a conviction or acquittal as

a bar to a subsequent prosecution.

United States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012) (quoting United States

v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)).

1. Section 922(g)(8)’s Requirements

Here, the indictment is facially sufficient despite the protection order not

identifying S.O. as an intimate partner. Section 922(g)(8) simply does not require

that the court-order form identify the protected party as an intimate partner. Section

922(g)(8)(B) requires that the “court order . . . restrain[] such person from harassing,

stalking, or threatening an intimate partner.” The text demands only that the order

protect an intimate party in fact. It does not require that the court order “include[] a

finding” that the protected party is an intimate partner or “by its terms” identify the

protected party as an intimate partner, as it requires for certain findings in

§ 922(g)(8)(C). Section 922(g)(8)(C) requires the court order to

(i) include[] a finding that such person represents a credible threat to

the physical safety of such intimate partner . . . ;or 

(ii) by its terms explicitly prohibit[] the use, attempted use, or

threatened use of physical force against such intimate partner . . . that

would reasonably be expected to cause bodily injury . . . .”

(Emphasis added). No similar language is included regarding an “intimate partner”

finding. Thus, the indictment need not include such an allegation either.

Looking to this indictment’s face, it pleaded the essential elements of a

§ 922(g)(8) offense: (1) Sholley-Gonzalez “was subject to a court order,” (2) the

order was “issued after a hearing of which he received actual notice, and at which

-9-
he had an opportunity to participate,” (3) the order “restrain[ed] him from harassing,

stalking, or threatening an intimate partner,” (4) the order “by its terms explicitly

prohibited the use, attempted use or threatened use of physical force against such

intimate partner,” and (5) Sholley-Gonzalez “knowingly possess[ed] . . . a firearm”

that was “in and affecting interstate commerce” and “knowingly possess[ed]

ammunition” that was “shipped and transported in interstate commerce.” Indictment

at 1, 4, United States v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D.

Iowa 2019), ECF No. 1.

2. Due Process

Sholley-Gonzalez also argues that the indictment failed to state an offense

because the order form did not affirmatively identify that S.O. was an intimate

partner, thus denying him due process. We disagree.

Sholley-Gonzalez relies on Lambert v. California for the proposition that

when “[a] law . . . punishe[s] conduct which would not be blameworthy in the

average member of the community,” due process requires “actual knowledge . . . or

proof of the probability of such knowledge and subsequent failure to comply

. . . before a conviction . . . can stand.” 355 U.S. 225, 229 (1957); Appellant’s Br. at

19. But we have already addressed Lambert’s interplay with § 922(g)(8) in a similar

case. In United States v. Miller, Miller claimed that the face of the restraining order

against him provided insufficient notice that he was restricted from possessing

firearms. 646 F.3d 1128, 1131 (8th Cir. 2011). Specifically, the district court did not

check a box on the order form indicating that Miller would be restricted from

possessing firearms, though it did identify the protected party as an intimate partner.

Id. at 1130. Miller also claimed that the state court had told him he would not be

restricted from possessing firearms. Id. at 1131.

In Miller, we held that “although Miller’s conduct [i.e., possessing a firearm]

may not be ‘per se blameworthy’” for an average citizen, he nevertheless had

-10-
sufficient knowledge that he would be restricted from possessing firearms because

“possession of a firearm, especially by someone subject to a restraining order, ‘is . . .

a highly regulated activity, and everyone knows it.’” Id. at 1132 (quoting United

States v. Hutzell, 217 F.3d 966, 968–69 (8th Cir. 2000)). We also found several other

factors that cut against Miller: (1) the restraining order’s front page “warned that

federal law restricts the possession of firearms by individuals subject to restraining

orders,” (2) the next page indicated the protected party was an intimate partner, and

(3) the order “restrained him from threatening, assaulting, stalking, molesting,

attacking, harassing, or otherwise abusing [the protected party], g[iving] Miller

reason to be on notice that his conduct was subject to increased government

scrutiny.” Id. at 1131–33.

Most of the factors that gave Miller sufficient notice are present here. First,

possession of firearms and ammunition, especially by people with a restraining order

against them, is highly regulated and “everyone knows it.” Id. at 1132. Second, the

first page of the protection order against Sholley-Gonzalez provided a “Warning[]

to Defendants” that “[f]ederal law provides penalties for possessing, transporting,

shipping, or receiving any firearm or ammunition (18 U.S.C. § 922(g)(8)).”

Stipulation, Ex. 1, at 1 (emphasis omitted). And third, the order restrained him “from

committing any acts of abuse or threats of abuse” and “from any contact with

[S.O.],” id., giving him “notice that his conduct was subject to increased government

scrutiny.” Miller, 646 F.3d at 1133. Further, the order form provided the federal

definition of “intimate partner” and explained that when an intimate partner was the

subject of the order, the defendant’s right to possess firearms and ammunition was

restricted. Stipulation, Ex. 1, at 2. Sholley-Gonzalez could have easily read the

definition on the order form and known that S.O. was an intimate partner and that he

was restricted from firearm and ammunition possession.

As in Miller, Sholley-Gonzalez had sufficient warning that the state court’s

protective order limited his ability to possess firearms.

-11-
B. Rehaif

“We review the denial of a motion for judgment of acquittal de novo.” United

States v. Sainz Navarrete, 955 F.3d 713, 718 (8th Cir. 2020). We review the “facts

in the light most favorable to the verdict” and will affirm if “a reasonable juror could

have found the defendant guilty of the charged conduct beyond a reasonable doubt.”

Id. (quoting United States v. Clark, 668 F.3d 568, 573 (8th Cir. 2012)). And “[w]e

review the denial of a motion for a new trial for an abuse of discretion,” reversing

the district court’s decision “only if the evidence weighs so heavily against the

verdict that a miscarriage of justice may have occurred.” Id. (quoting United States

v. Anwar, 880 F.3d 958, 969 (8th Cir. 2018)).

In Rehaif, the Supreme Court held “that in a prosecution under 18 U.S.C.

§ 922(g) . . . , the Government must prove . . . that [the defendant] knew he belonged

to the relevant category of persons barred from possessing a firearm.” 139 S. Ct. at

2200. The Court, however, did not express “what precisely the Government must

prove to establish a defendant’s knowledge of status in respect to other § 922(g)

provisions not at issue [in the case],” such as § 922(g)(8). Id. It did explain that the

knowledge-of-status element will not usually be “burdensome” to prove because

“knowledge can be inferred from circumstantial evidence.” Id. at 2198 (quoting

Staples v. United States, 511 U.S. 600, 615 n.11 (1994)).

Here, the district court made no finding under § 922(g)(8) as to whether

Sholley-Gonzalez knew his status. Although Rehaif had not been decided when the

district court convicted Sholley-Gonzalez, it was error to not make a finding about

Sholley-Gonzalez’s knowledge of status. Cf. United States v. Jawher, 950 F.3d 576,

579 (8th Cir. 2020) (explaining that failure to include the knowledge-of-status

element is an “error [that] is now plain under Rehaif”). But this Rehaif error was

harmless. See United States v. Mueller, 661 F.3d 338, 347 (8th Cir. 2011) (“The

harmless-error analysis applies ‘to cases involving improper . . . instructions on a

single element of the offense.” (quoting Neder v. United States, 527 U.S. 1, 11

-12-
(1999))). An error is harmless when the evidence supporting the conviction “is so

overwhelming that no rational [fact finder] could find otherwise.” United States v.

Beckham, 917 F.3d 1059, 1064 (8th Cir. 2019).

Sholley-Gonzalez stipulated to certain facts in this case. Those stipulated facts

overwhelmingly show that a rational fact finder would find that Sholley-Gonzalez

met the knowledge-of-status element. Specifically, he stipulated that (1) he had

“received actual notice of the protective order hearing along with the opportunity to

participate in the hearing,” (2) he was subject to a court order protecting S.O., (3)

S.O. “was, in fact, an intimate partner of [Sholley-Gonzalez],” (4) the court order

prohibited him from “using, or attempting to use, or threatening to use physical force

against [S.O.],” and (5) on the firearm-transaction form he answered that he was not

subject to a court order protecting an intimate partner. Stipulation 1–2, United States

v. Sholley-Gonzalez, No. 4:18-cr-00090-RGE-CFB-1 (S.D. Iowa 2019), ECF No. 52-

1. With this knowledge, he would certainly have known that S.O. was his “spouse,”

“former spouse,” “an individual who is a parent of [his] child,” or “an individual who

cohabitates or has cohabitated with [him].” 18 U.S.C. § 921(a)(32).

A rational fact finder would only have inferred that Sholley-Gonzalez had

knowledge of his status under § 922(g)(8) beyond a reasonable doubt because he was

aware of the facts that met the statutory requirements for the court order. In other

words, he knew the facts that made him part of “the relevant category of persons

barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. He need not have

known that he was barred from possessing firearms or ammunition because of those

facts, only that “he had the relevant status when he possessed it”—i.e., that he was

subject to a qualifying court order. Id. at 2194; cf. id. at 2198 (explaining that

“ignorance” about “the existence of a statute proscribing [certain] conduct” is no

excuse, so long as “a defendant has the requisite mental state in respect to the

elements of the crime” (citations omitted)). In addition, the federal definition for

intimate partner was on the face of the court order.

-13-
Our conclusion is further supported by the district court convicting SholleyGonzalez of knowingly making a false statement under § 922(a)(6). To convict

Sholley-Gonzalez under § 922(a)(6), the district court had to have found that

Sholley-Gonzalez “knowingly [made] a[] false or fictitious . . . statement.” (Emphasis

added). And to knowingly make a false statement about his status, Sholley-Gonzalez

must have had knowledge of his status. In short, a rational fact finder has already

found that Sholley-Gonzalez had knowledge of his status when he made the false

statement. Cf. United States v. Dvorak, 617 F.3d 1017, 1026 (8th Cir. 2010) (“Here,

there is no need to guess as to whether a rational jury would have found [the

defendant] guilty if the proper instructions were given because a rational jury did

find that he met the additional element of the statute [in its answers to a special

verdict form].”).

The dissent cites United States v. Davies, 942 F.3d 871 (8th Cir. 2019), as

undermining our conclusion. But Davies does the opposite. In Davies, Davies

pleaded guilty to two Iowa felonies. 942 F.3d at 872. “After he pleaded guilty but

before his sentencing,” Davies illegally possessed firearms under 18 U.S.C.

§ 922(g)(1). Id. Section 922(g)(1) prohibits a person from possessing a firearm if

they have “been convicted in any court of[] a crime punishable by imprisonment for

a term exceeding one year.” Id. (alteration in original) (emphasis added) (quoting

18 U.S.C. § 922(g)(1)). At trial, Davies stipulated that he knowingly possessed the

firearms, id., and that the Iowa felonies he pleaded to were “crimes ‘punishable by

a term of imprisonment greater than one year.’” Id. at 874. We explained that these

“facts indicate[d] he knew the offenses to which he was pleading guilty would

ultimately qualify him to be charged [under § 922(g)(1)], but there [wa]s no evidence

that he knew when he possessed the firearms . . . , before his sentencing, that he had

been convicted of those crimes.” Id. (emphasis added). In short, the Davies’s factual

stipulations left ambiguity about whether he knew he had been convicted of a

qualifying crime—a requirement for a defendant to fit into the § 922(g)(1) category.

-14-
Sholley-Gonzalez, on the other hand, stipulated to all the facts that fit him into

the § 922(g)(8) category, and the district court found that Sholley-Gonzalez knew

those facts. He stipulated that he had notice and opportunity to participate in a

hearing about the court order. See § 922(g)(8)(A). He stipulated that the court order

protected an intimate partner. See § 922(g)(8)(B). And he stipulated that the court

order prohibited him from using, attempting to use, or threatening to use physical

force against an intimate partner. See § 922(g)(8)(C)(ii). Then, the district court

found that Sholley-Gonzalez knew these stipulated facts when he attempted to

purchase a firearm at Walmart, violating § 922(a)(6).

Because the district court found that Sholley-Gonzalez knew the stipulated

facts that fit him into the § 922(g)(8) category for purposes of the § 922(a)(6)

violation, Sholley-Gonzalez also knew those facts for purposes of the § 922(g)(8)

conviction. It would defy reason for the district court to have found that SholleyGonzalez simultaneously knew and did not know the facts that fit him into the §

922(g)(8) category. 

Finally, Sholley-Gonzalez asserts that “knowledge of his prohibited status is

inextricably intertwined with the question of whether § 922(g)(8) requires the

restraining order to state by its own terms that the protected party and the restrained

parties are intimate partners.” Appellant’s Br. at 23. He contends that this, in turn,

implicates § 922(a)(6) “because . . . then his statement denying being a party to such

an order was truthful, and he cannot be said to have knowingly made a false

statement.” Id. at 23–24. But as explained above, this argument is unavailing;

§ 922(g)(8) does not require the restraining order to state that the restrained party

and the protected party are intimate partners.

Thus, we find that the district court’s Rehaif error was harmless.

C. Sporting-Use Reduction

In his last argument, Sholley-Gonzalez contends that the district court erred

because its § 2K2.1(b)(2) ruling was partially premised on his attempted purchase

-15-
of a firearm. He did not raise this below, so we review for plain error. United States

v. Godfrey, 863 F.3d 1088, 1095 (8th Cir. 2017). To show plain error, SholleyGonzalez “must show that there was an error, the error is clear or obvious under

current law, the error affected the party’s substantial rights, and the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quoting United States v. Delgrosso, 852 F.3d 821, 828 (8th Cir. 2017)).

Section 2K2.1(b)(2) would lower Sholley-Gonzalez’s offense level to six if

he “possessed all ammunition and firearms solely for lawful sporting purposes.” To

determine if the sporting-use reduction applies, courts review the “[r]elevant

surrounding circumstances,” such as “the number and type of firearms, the amount

and type of ammunition, the location and circumstances of possession and actual use,

the nature of the defendant’s criminal history (e.g., prior convictions for offenses

involving firearms), and the extent to which possession was restricted by local law.”

§ 2K2.1(b)(2) cmt. n.6; see also United States v. Moore, 860 F.3d 1076, 1078 (8th

Cir. 2017). Sholley-Gonzalez bears the burden of proving § 2K2.1(b)(2)’s reduction

applies to him. United States v. Bertling, 510 F.3d 804, 811 (8th Cir. 2007).

Our first task in reviewing a sentence is to determine if there was significant

procedural error. United States v. Zeaiter, 891 F.3d 1114, 1121 (8th Cir. 2018)

(quoting United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008)). If there was

significant procedural error, we must reverse and remand. We have explained that

“failing to calculate (or improperly calculating) the Guidelines range” or “selecting

a sentence based on clearly erroneous facts” is a procedural error. Godfrey, 863 F.3d

at 1094–95 (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)).

The nub of Sholley-Gonzalez’s argument is that the district court misinterpreted

§ 2K2.1(b)(2) when it treated his attempted purchase of a firearm as actual

possession, causing the district court to calculate his offense level as twelve instead

of six, as the sporting-use reduction requires.

The district court began by properly identifying the § 2K2.1(b)(2) analysis:

“The defense bears the burden of establishing that the defendant possessed all

-16-
ammunition and firearms solely for lawful sporting purposes or collection and did

not unlawfully discharge or otherwise unlawfully use such a firearm or ammunition.”

Sentencing Tr. 38 (emphasis added). Immediately after this, however, the district

court stated that its analysis included whether Sholley-Gonzalez’s “intended . . .

purchase [of] the firearm” was “solely for lawful sporting purposes.” Id. (emphasis

added). And the district court concluded its § 2K2.1(b)(2) analysis by explaining that

it made no distinction between Sholley-Gonzalez’s possession of the ammunition

and attempted purchase of a firearm. It stated:

Now, the question of whether or not the shotgun shells versus the

firearm, which was possessed for which purpose, the parties haven’t

broken that down in terms of whether or not there’s some argument that

one was possessed for a lawful sporting purpose and the other wasn’t.

Here the standard is that all ammunition and firearms have to be

possessed solely for lawful sporting purposes, and the court cannot

make that finding.

Id. at 41. Thus, under the district court’s analysis, Sholley-Gonzalez may have

possessed the ammunition solely for lawful sporting purposes. And it may have been

that only Sholley-Gonzalez’s attempted purchase of a firearm was for a nonsporting

purpose.

But § 2K2.1(b)(2)’s text only considers the firearms or ammunition the

defendant actually “possessed,” not those the defendant “attempted” or “intended”

to possess. Nor does § 2K2.1(b)(2)’s commentary note include attempted

possessions as relevant to the sporting-use reduction’s application.1 This stands in

1

If the United States Sentencing Commission had wished to include attempted

possession along with actual possession under § 2K2.1(b)(2)’s analysis, it could have

done so. Cf. United States v. Abumayyaleh, 530 F.3d 641, 650 (8th Cir. 2008)

(explaining that, because “we are bound by the plain text of the guidelines,” a

Guidelines enhancement that applied “[i]f any firearm . . . was stolen” only applied

if the firearm was “actually stolen” and not “if the offender intended to purchase

stolen firearms” that were “not actually stolen” (alterations in original) (quoting

U.S.S.G. § 2K2.1(b)(4)).

-17-
contrast to more permissive language like that used in U.S.S.G. § 2K2.1(b)(1), which

increases a defendant’s offense level “[i]f the offense involved three or more

firearms.” (Emphasis added).

Because § 2K2.1(b)(2) does not contemplate attempted firearm purchases, the

district court erred by including Sholley-Gonzalez’s attempted purchase in its

analysis. We have not previously addressed this specific issue, but § 2K2.1(b)(2)’s

text is clear—actual, not attempted, possession should be analyzed. We have

explained that 

[t]here is ultimately, however, a limit to what the district court can do,

even under plain error review, and, for example, in the statutory

construction context, it is possible that the construction of the statute

proffered by the district court departs so far from the text that it is

clearly incorrect as a matter of law.

United States v. Lachowski, 405 F.3d 696, 698–99 (8th Cir. 2005). This error was

plain.

Sholley-Gonzalez must also show that the error affected his substantial rights.

“An error affects substantial rights if there is a reasonable probability, based on the

appellate record as a whole, that but for the error he would have received a more

favorable sentence.” United States v. Edmonds, 920 F.3d 1212, 1214 (8th Cir. 2019)

(quotations omitted). Looking only at the ammunition Sholley-Gonzalez possessed,

not to the firearm he attempted to purchase, there is a reasonable probability the

sporting-use reduction would apply.

Because there is a reasonable probability that the sporting-use reduction would

have applied to Sholley-Gonzalez’s offense-level calculation, he has shown plain

error. The district court calculated the suggested Guidelines range as 30–37 months’

imprisonment. Applying the sporting-use reduction, along with lowering the offense

level for acceptance of responsibility, the suggested range for Sholley-Gonzalez

would have been 6–12 months’ imprisonment. This is well below the sentence

-18-
imposed. Sholley-Gonzalez “need not make a further showing of prejudice beyond

the fact that the erroneous guidelines range set the wrong framework for the

sentencing proceedings.” United States v. Mulverhill, 833 F.3d 925, 930 (8th Cir.

2016) (quotations omitted). Finally, miscalculating the base Guidelines range affects

the fairness, integrity, and reputation of the courts. We thus remand for resentencing.

III. Conclusion

The district court correctly determined that the indictment against SholleyGonzalez was facially sufficient and that Rehaif did not help Sholley-Gonzalez. But

it committed plain error when analyzing the sporting-use reduction. Accordingly, we

remand for resentencing.

LOKEN, Circuit Judge, dissenting in part. 

I respectfully dissent from Part II.B. of the court’s opinion. I conclude the

district court committed plain error under Rehaif v. United States, 139 S. Ct. 2191

(2019), that was not harmless beyond a reasonable doubt and therefore Justin

Sholley-Gonzalez deserves a new trial. I agree the district court erred in denying

Sholley-Gonzalez a sporting purposes sentencing reduction, see USSG

§ 2K2.1(b)(2); I would remand for resentencing with instructions to apply the

reduction.2 

I.

The Supreme Court held in Rehaif that, in a § 922(g) prosecution, “the

Government must prove both that the defendant knew he possessed [ammunition]

and that he knew he belonged to the relevant category of persons barred from

possessing [ammunition].” 139 S. Ct. at 2200. The Court did not prescribe “what

precisely the Government must prove to establish a defendant’s knowledge of status”

2

I agree the indictment stated a § 922(g)(8) offense and join Part II.A.(1) of the

opinion. I would not reach the due process issues discussed in Part II.A.(2). It will

not be an issue in future § 922(g)(8) prosecutions governed by Rehaif. 

-19-
regarding § 922(g) provisions not at issue in Rehaif, including § 922(g)(8). Id. At

a minimum, in this § 922(g)(8) prosecution, the government must prove that SholleyGonzalez “knew he belonged to the relevant category of persons,” that is, persons

“subject to a court order that restrains [him] from harassing, stalking, or threatening

an intimate partner.” 18 U.S.C. § 922(g)(8)(B).

In determining whether the plain Rehaif error was harmless, in my view the

key fact is that the Iowa state court protection order issued against Sholley-Gonzalez

did not have a check mark in two boxes designed to warn the person being restrained

that the order would affect his right to possess firearms and ammunition under

federal law -- the box designating S.O. as his “intimate partner,” and the separate box

stating that he could not possess firearms or ammunition while the order was in

effect if the first box was checked. This made the order materially different than the

order in United States v. Miller, a pre-Rehaif case on which the court relies. Though

both cases involved the same form of Iowa protection order, in Miller the box stating

that it applied to an intimate partner was checked. 646 F.3d 1128, 1130-33 (8th Cir.

2011).

Sholley-Gonzalez’s pre-Rehaif trial was conducted on stipulated facts. He

stipulated that he was subject to a court order issued after notice and hearing that

protected S.O., and that she was in fact his intimate partner. Of course, had the trial

taken place when Rehaif was governing law, so that knowledge of status was an

essential element of the offense, Sholley-Gonzalez might not have entered into the

stipulation. However, given the warnings in the order defining the federal definition

of intimate partner and explaining the order’s possible impact on the restrained

party’s lawful possession of firearms under federal law, these facts could not

reasonably have been denied.

 However, these stipulated facts did not establish that Sholley-Gonzalez knew

he was subject to a court order that put him in the § 922(g)(8) category. With the

boxes putting a restrained person in that status unchecked, Sholley-Gonzalez might

have believed that the state court did not conclude S.O. was his intimate partner, or

did not intend to subject him, a hunting and target shooting enthusiast, to this

-20-
burdensome federal law restraint. Unlikely, perhaps, but no more unlikely than the

circumstances in United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019), where

we reversed a felon-in-possession conviction for plain error under Rehaif because

the defendant might not have known he was a convicted felon when he had not been

sentenced at the time he committed the felon-in-possession offense. SholleyGonzalez has never been convicted or charged with an offense involving firearms.

The court reasons that, because the district court found that Sholley-Gonzalez

“knowingly ma[de] a false statement about his status” when he answered the WalMart form, it necessarily found he had knowledge of status. Infra p. 13-14. This

begs the essential Rehaif question. Knowledge that he was under an order protecting

a person who was in fact his intimate partner is not necessarily knowledge the state

court issued an order that put him in the § 922(g)(8) category under federal law when

the order did not check the box that said so. A reasonable fact finder could find

Sholley-Gonzalez guilty of violating 18 U.S.C. § 922(a)(6) but not § 922(g)(8). 

Indeed, at a new trial where fewer facts are stipulated because his mens rea is

properly in focus, both acts could be “innocent mistake[s]” evincing a “lack of intent

needed to make his behavior wrongful.” Rehaif, 139 S. Ct. at 2197. In that case, he

could be found guilty of neither offense.3

 I agree with the court that a rational fact finder could find on these facts that

Sholley-Gonzalez had knowledge of his status under § 922(g)(8). But I disagree that

the evidence was “so overwhelming that no rational [fact finder] could find

otherwise.” United States v. Beckham, 917 F.3d 1059, 1064 (8th Cir. 2019). I

conclude there is a reasonable probability the outcome of Sholley-Gonzalez’s trial

would have been different because the government did not prove this element of the

§ 922(g)(8) offense -- that Sholley-Gonzalez knew he was “subject to a court order

that . . . restrains [him] from harassing, stalking, or threatening an intimate partner.”

See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018) (standard for

plain error relief). Weighing the totality of these unusual circumstances, I conclude

3The PSR recited that Sholley-Gonzalez checked “no” on the Wal-Mart firearm

application form because he believed S.O. had dropped the protection order.

-21-
this is the rare case, like Davies and Rehaif itself, where Rehaif’s significant change

in the law warrants a new trial. 

II.

 I will comment briefly on the sporting purposes issue. As the court notes, the

defendant must prove by a preponderance of the evidence that he qualifies for the

§ 2K2.1(b)(2) reduction. United States v. Massey, 462 F.3d 843, 845 (8th Cir.

2006). At sentencing, Sholley-Gonzalez presented substantial evidence that he

possessed the ammunition solely for lawful sporting purposes. He testified that he

enjoys hunting and target shooting, and had engaged in the latter with his daughter

as late as February 2018. He also testified that the 20-gauge and .410 shotgun shells

found at his home were left over from previous hunting and target shooting outings,

and that he only used the ammunition for those purposes. He introduced past

hunting and fishing licenses, letters from friends and family attesting to his

participation in sporting activities, and pictures of him and his daughter engaging in

hunting and shooting. He testified that he went to Wal-Mart looking for a .22-

caliber rifle for his daughter. When he asked for “the cheapest gun,” the clerk

showed Sholley-Gonzalez three 12-gauge shotguns, guns consistent with hunting

and target shooting and not designed for the 20-gauge and .410 shotgun shells in his

home that are the basis for his § 922(g)(8) conviction. 

The government failed to present any evidence that Sholley-Gonzalez

possessed the ammunition for other than lawful sporting purposes. Nor did the

government even probe that issue. Rather, on cross-examination, the government

questioned Sholley-Gonzalez about his trip to Wal-Mart, his prior drug use, and his

harassment of S.O and her family. When Sholley-Gonzalez objected, the

government responded that it was pursuing “line[s] of questioning” to probe “what

his intent was with those firearms” the clerk had shown him. The district court

overruled Sholley-Gonzalez’s relevance objection because the focus was on “other

potential uses of the firearm.” But Sholley-Gonzalez never possessed the shotguns

the Wal-Mart clerk displayed. 

-22-
In denying the sporting purposes reduction, the district court did not consider

the evidence that Sholley-Gonzalez possessed the ammunition found in his home

solely for lawful sporting purposes, other than to observe that he had not had a valid

hunting license since 2014.4 Instead, the court denied the reduction based primarily

on his attempt to purchase a firearm at Wal-Mart, and the facts underlying the

issuance of the state court protection order, which did not involve the use of a

firearm: 

[T]he context of this defendant cannot be overlooked in looking at the

possession of a firearm . . . . The evidence that’s been presented to

show that this was solely for hunting purposes is not persuasive.

The fact that he was an avid fisherman or an avid hunter bears to no

extent on the purposes for these firearms. The fact that he had

admittedly engaged in the harassing conduct and that involving [sic] the

victim and her father undermines the arguments in terms of the fact that

there were no other purposes that could have been used with this

firearm.

Now, the question of whether or not the shotgun shells versus the

firearm, which was possessed for which purpose, the parties haven’t

broken that down in terms of whether or not there’s some argument that

one was possessed for a lawful sporting purpose and the other wasn’t. 

Here the standard is that all ammunition and firearms have to be

possessed solely for lawful sporting purposes.

(Emphases added).

I conclude both the government and the district court focused on irrelevant

facts. It was error to focus on Sholley-Gonzalez’s attempt to purchase a shotgun at

4Sholley-Gonzalez testified that the ammunition found at his home was left

over from previous outings. Of course a person does not need a hunting license to

engage in target shooting. 

-23-
Wal-Mart. He was not convicted of that conduct.5

 True, USSG § 2K1.2(b)(2) refers

to whether the defendant “possessed all ammunition and firearms solely for lawful

sporting purposes or collection.” But Application Note 6 refers only to actual

possession and use. The shotguns were never possessed, and Sholley-Gonzalez was

convicted of possessing ammunition entirely unconnected to his shopping at WalMart. Thus, the trip to Wal-Mart was not conduct relevant to the sporting purposes

reduction; it did not “occur[] during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” USSG § 1B1.3(a)(1). Viewing 12-gauge shotguns

at Wal-Mart while shopping for his daughter sheds no light on Sholley-Gonzalez’s

purposes for possessing ammunition of a completely different gauge or caliber.

The district court improperly applied the Guidelines when it considered

conduct that was irrelevant to the sporting purposes reduction. See United States v.

Lussier, 423 F.3d 838, 843 (8th Cir. 2005), cert. denied, 546 U.S. 1130 (2006)

(standard of review). Based on the relevant evidence at sentencing, this case is

strikingly similar to Massey, where we upheld the grant of a sporting purposes

reduction on facts that mirror much of the evidence Sholley-Gonzalez presented. 

462 F.3d at 847. In both cases, the defendant had: (i) no prior convictions for

offenses involving firearms, (ii) evidence of hunting and fishing licenses and deer

tags, and (iii) letters from those who knew them attesting to their enthusiasm for

hunting. Id. at 846. Adding the fact that the loose array of 20-gauge and .410

shotgun shells found at Sholley-Gonzalez’s home are ammunition typically used for

target shooting and small game hunting, and the absence of contrary evidence from

the government, I conclude the “relevant surrounding circumstances” point to him

possessing the ammunition solely for lawful sporting purposes. See USSG

§ 2K2.1(b)(2) cmt. n.6. Given the total lack of evidence rebutting SholleyGonzalez’s evidence of lawful sporting purposes for his ammunition possession, I

would remand with instructions to grant the reduction.

______________________________

5Count 1 of the indictment charged Sholley-Gonzalez with unlawful possession

of the firearm he did not purchase at Wal-Mart. The government stipulated that if the

court found him guilty of unlawful possession of the ammunition, it would dismiss

Count 1 at sentencing.

-24-