## United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 18

- 2662

___________________________ United States of America Plaintiff

- Appellee

v. Christopher Matthew Davies Defendant

- Appellant

____________ Appeal from United States District Court for the Northern District of Iowa

- Cedar Rapids

____________ Submitted: September 26, 2019 Filed: November 8, 2019

____________ Before GRUENDER, BENTON, and S HEPHERD, Circuit Judges.

____________ GRUENDER, Circuit Judge.

Christopher Davies pleaded guilty to two Iowa felonies in September 2016

. After he pleaded guilty but before his sentencing, Davies possessed two firearms on October 25

. In December , t he Iowa state court entered a deferred judgment against Davies a nd placed him on probation.- 2

- Federal law prohibits any person “who has been convicted in any court of[] a crime punishabl e by imprisonment for a term exceeding one year” from possessing a firearm. 18 U.S.C. § 922(g)(1). A grand jury thus returned an indictment charging Davies with being a felon in possession of a firearm for possessing the two firearms on October 25

.

At his bench trial, the parties stipulated that Davies knowingly possessed the firearms. But Davies contested whether he had been convicted of a felony under Iowa law at the time he possessed the firearms because he had not yet been sentenced

. The district court determined that Davies ’s guilty plea constituted a conviction under Iowa law and found him guilty of being a felon in possession of a firearm. He was sentenced to 37 months’ imprisonment.

On appeal, Davies a gain argues that his guilty plea was n ot a conviction under Iowa law and therefore, when he possessed the two firearms prior to his sentencing , he was not a felon . After the parties submitted their briefs, Davies filed a Rule 28 ( j ) letter arguing that the Supreme Court’s decision in Rehaif v. United States , 139 S. Ct. 2191 (2019), requires that we reverse his felon in possession conviction and that the Double Jeopardy Clause requires that we remand his case for dismissal

. We ordered the parties to file supplemental briefing.

We first consider whether Davies had been convicted under Iowa law at the time he possessed the firearms on October 25 . We review legal question s de novo

. See United States v. Pate , 754 F.3d 550, 554 (8th Cir. 2014). “What constitutes a conviction .

. . shall b e determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20).

Iowa law allows a court to “defer judgment” against a defendant in certain situations , and it allows a court to place him “on probation upon conditions as it may require.” Iowa Code § 907.3 (1)(a)

. In State v. Deng Kon Tong , 805 N.W.2d 599 , 601 (Iowa 2011), the Iowa Supreme Court considered whether a defendant who had pleaded guilty and receive d a deferred judgment had been convicted as required by- 3

- Iowa’s felon in possession of a firearm offense

. See Iowa Code § 724.26. The court determined that the deferred judgment qualified as a conviction, observing that “the legislature intended the statu te to cover persons who had engaged in certain conduct ,” which supported “ a broad interpretation of the term ‘convicted.’” Deng Kon Tong , 805 N.W.2d at 602. The concurring opinion commented that the court “emphasizes the fact that no person who enters a guilty plea on a felony in anticipation of the court granting that person a deferred judgment can ever possess a gun.” Id

. at 604 (Wiggins, J., concurring).

Then, in State v. Olsen , 848 N.W.2d 363 , 371 (Iowa 2014), the Iowa Supreme Court concluded that a defendant who entered a no contest plea in a Wisconsin state court had been convicted such that he could be guilty as a felon in possession under Iowa’s felon

- in

- possession statute. T he Wisconsin court had accepted the no contest plea on the record and had found that it was supported by a factual basis and voluntarily entered. Id

. The Iowa Supreme C ourt concluded that “[a]ll judicial findings of guilt pursuant to the plea bargaining process are convictions under th e general and popular use of the term,” noting that its result was “consistent” with the concurring opinion’s commentary in Deng Kon Tong that “a defendant’s guilty plea in anticipation of the court’s granting the defendant a deferred judgment is a convict ion for the purpose of enhancing a defendant’s punishment.” Id . at 373 & n.1.

As in Olsen , t he Iowa court here made judicial finding s of guilt because it accepted Davies’s guilty pleas after finding that they had a factual basis and that they were volu ntarily and intelligently entered

. Davies argues that we should apply the test in Schilling v. Iowa Dep artment of Transportation , b ut that case considered whether a deferred judgment constituted a conviction after the Iowa Department of Transportation revoked a driver’s license. 646 N.W.2d 69 (Iowa 2002). And Olsen and Deng Kon Tong “have recognized that the term ‘conviction’ may ha ve a different meaning depending on context.” Olsen , 848 N.W.2d at 372. We thus agree with the district court ’s conclusion that Davies’s guilty plea s constituted conviction s under Iowa law in Olsen and Deng Kon Tong

.- 4

- We next consider the Rehaif issue fi rst raised in Davies’s 28(j) letter. United States v. Hollingshed , 940 F.3d 410, 415 (8th Cir. 2019) (considering a Rehaif argument raised while the direct appeal was pending because “Supreme Court decisions in criminal cases apply to all cases pending on direct review”). In Rehaif , the Supreme Court concluded “that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category o f persons barred from possessing a firearm .” 139 S. Ct. at 2200 (emphasis added). Here, the relevant category of persons is anyone “who has been convicted in any court o f[] a crime punishable by imprisonment for a term exceeding one year.” § 922(g) (1)

. Davies thus argues that even if he was convicted under Iowa law, the Government did not prove that he knew he had been convicted.

“Because [Davies] failed to challenge the lack of a jury instruction regarding his knowledge of his felony status, we re view his claim for plain error.” Hollingshed , 940 F.3d at 415. Under that standard, Davies must prove (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Olano , 507 U.S. 725, 732 (1993); Fed. R. C rim . P. 52(b). “M oreover, Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano , 507 U.S. at 732 (internal quotation marks omitted and alteration in original).

The Government conceded in its supplemental brief that Davies has shown an error that is plain but argues that he has not shown that the error affects his substantial rights. The Supreme Court has explained that, “in the ordinary case,” an error affects the defendant’s substantial rights if the defendant “show[s] a reasonable probability that, but for the error, the outcome of the proceeding wo uld have been different.” Molina

- Martinez v. United States , 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)

.- 5

- The Government correctly notes that Davies affirmatively stated when he pleaded guilty to the Iowa felonies that he understood that he was pleading guilty to two felonies , each of which carried a maximum sentence of up to five years. It also correctly notes that Davies stipulated to the district court in this case that he pleaded guilty to crimes “punishable by a term of imprison ment greater than one year.” The Government claims these facts demonstrate that Davies cannot show a reasonable probability of a different outcome absent the error

. We disagree. Though the facts establish that Davies knew he pleaded guilty to the Iowa felonies, they do not show that he knew he had been convicted of the Iowa felonies . In other words, the facts indicate he knew the offenses to which he was pleading guilty would u ltimately qualify him to be charged as a felon in possession of a firearm, but there is no evidence that he knew when he possessed the firearms on October 25, before his sentencing, that he had been convicted of those crimes. Indeed, it seems reasonable t hat someone in Davies’s position, after pleading guilty, might nevertheless think he could possess firearms because he had not yet been sentenced.

Contrary to the Government’s argument, our decision does not require that it prove Davies “knew the ins an d outs of Iowa la w .” Under Rehaif , he needed to know only that he had been convicted of a crime punishable by imprisonment for a term exceeding one year at the time he possessed the firearms. Ordinarily, the Government will be able to point to evidence i n the record demonstrating that a defendant knew he was convicted , preventing the defendant from show ing a reasonable probability of a different outcome absent the error

. See United States v. Williams , 776 F. App’x 387, 388 (8th Cir. 2019) (explaining tha t the defendant could not show a reasonable probability of a different outcome but for the error because he had served a fifteen

- year sentence) (per curiam); Hollingshed , 940 F.3d at 415

- 16

. But this is not such a case . Davies has shown a reasonable probability that the outcome would have been different.- 6

- The Supreme Court explained in Rehaif that a defendant without knowledge of his status under § 922(g) “may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach.” 139 S. Ct. at 2197. We t hus conclude that this error also seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Olano , 507 U.S. at 732.

For the foregoing reasons, we vacate Davies’s conviction and remand for a new trial

. See United Sta tes v. Ford , 703 F.3d 708, 711 (4th Cir. 2013) ( citing the Ninth, Tenth, and Eleventh Circuits in observing that “ [o] ther circuits considering this issue agree that where a reviewing court determines that the evidence presented at trial has been rendered i nsufficient only by a post

- trial change in law, double jeopardy concerns do not preclude the government from retrying the defendant”).

______________________________