# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 7, 2020 *

Decided January 7, 2020

Before

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 19

‐ 1151

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

RUBEN MANCILLAS,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:16CR00020

‐ 001

William T. Lawrence,

J udge

.

O R D E R

This is Ruben Mancillas’s second appeal. In 2017, he was convicted of two counts

of possessing ammunition as a felon in violation of 18 U.S.C. § 922(g)(1). After denying

Mancillas’s request to represent himself at his sentencing hearing, the district court

sentenced him to 100 months’ imprisonment. In his first appeal, he challenged only the

sentence, not his convictions. We vacated that sentence and remanded for the district

court to consider whether Mancillas, consistent with his Sixth Amendment right to

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 1151 Page 2

self

‐ representation, wished to proceed pro se at sentencing. United States v. Mancillas

,

880 F.3d 297, 302, 304 (7th Cir. 2018). On remand, Mancillas decided that he wanted a

lawyer after all. He was appointed new counsel, and the district court imposed the

same sentence. He appealed again, and we granted his motion to represent himself. We

now affirm.

Mancillas first challenges his convictions, contending that: (1) the two counts are

multiplicitous in violation of the Double Jeopardy Clause; (2) the federal government

lacked authority to prosecute him; and (3) the court did not properly instruct the jury

on the elements of the offense. The first two contentions are waived because Mancillas

failed to raise them—or any challenge to his convictions—in his previous appeal.

See United States v. Whitlow

, 740 F.3d 433, 438 (7th Cir. 2014) (“[A]n issue that could have

been raised on appeal but was not is waived and, therefore, not remanded.”); United

States v. Adams

, 746 F.3d 734, 744 (7th Cir. 2014). But for the third, Mancillas relies on the

Supreme Court’s recent decision in Rehaif v. United States

, 139 S. Ct. 2191 (2019), which

was issued after his resentencing. And an intervening change in law may allow a court

to consider issues that an appellant failed to raise in a previous appeal. Carmody v. Bd. of

Trustees of Univ. of Illinois

, 893 F.3d 397, 407–08 (7th Cir. 2018); Krieger v. United States

,

842 F.3d 490, 505 (7th Cir. 2016). We therefore consider Mancillas’s challenge to the jury

instructions, but because he did not object to them at trial, we review them only for

plain error. See United States v. Thomas

, 933 F.3d 685, 690 (7th Cir. 2019).

In Rehaif

, the Supreme Court held that to obtain a conviction under § 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 jury instructions at

Mancillas’s trial did not include this element, so Mancillas can show that there was a

“clear” or “obvious” error. See Johnson v. United States

, 520 U.S. 461, 468 (1997) (“[I]t is

enough that an error be ‘plain’ at the time of appellate consideration.”). But he cannot

show that this error affected his substantial rights, see id

., because the record reveals that

the government easily could have proved that Mancillas knew that he had previously

been convicted of offenses punishable by more than a year in prison. See United States v.

Reed

, 941 F.3d 1018, 1021–22 (11th Cir. 2019); United States v. Benamor

, 937 F.3d 1182,

1188–89 (9th Cir. 2019).

At trial, Mancillas stipulated to his status as a felon to prevent the government

from offering evidence of his nine prior felonies—a number that itself renders a lack of

awareness all but impossible. He also did not object to the 18 criminal

‐ history points he

was assigned in his presentence investigation report, placing him in the highestNo. 19

‐ 1151 Page 3

criminal

‐ history category. Based on that history, which includes multi

‐ year stints of

incarceration, he could not have introduced reasonable doubt that he was aware that he

had previously been convicted of a felony.

Mancillas next challenges his sentence by contending that 18 U.S.C. § 3553(a) is

unconstitutional because Congress violated the separation of powers doctrine by telling

district courts what they must consider when determining a sentence. Although

Mancillas did not previously raise this argument, the government does not argue that

he waived or forfeited it, so we consider it. See United States v. Prado

, 743 F.3d 248, 251

(7th Cir. 2014). It is meritless. Congress has the constitutional power to limit the scope of

a sentencing court’s discretion. Mistretta v. United States

, 488 U.S. 361, 364 (1989);

United States v. Meschino

, 643 F.3d 1025, 1030 (7th Cir. 2011). And the Supreme Court has

upheld the constitutionality of the § 3553(a) factors. United States v. Booker

, 543 U.S. 220,

259–60 (2005); see also Gall v. United States

, 552 U.S. 38, 51 (2007) (explaining that a

district court commits procedural error if it fails to consider § 3553(a) factors).

AFFIRMED