Eleventh Circuit Court of Appeals - Published Opinions

Thursday, August 17, 2017

Rehaif: No Mens Rea Required as to Status Element of 922(g)

In United States v. Rehaif, No. 16-15860 (Aug. 17, 2017) (Dubina, Ed Carnes, William Pryor), the Court affirmed the defendant's conviction for possessing a firearm and ammunition while being unlawfully in the United States, in violation of 18 U.S.C. 922(g)(5)(A) and 924(a)(2).

On appeal, the defendant first argued that the government was required to prove not only that he knowingly possessed the firearm/ammunition, but also that he knew he was unlawfully in the United States.  In rejecting that argument, the Court relied heavily on 922(g)(1) precedents -- including an 11th circuit case from 1997 -- holding that the government does not need to prove that the defendant knew of his felon status.  Notably, it rejected the contrary conclusion reached in a concurring opinion by then-Judge Gorsuch.  The Court opined that there was no reason to treat felon status under 922(g)(1) differently than unlawful-presence status under 922(g)(5).  It therefore broadly held that "there is no mens rea requirement with respect to the status element of 922(g)."  The Court nonetheless noted that, although not alleged in that case,"there could be a mistake of fact defense."

Next, the defendant argued that he was "unlawfully" presented in the United States only when he was so adjudicated by an immigration officer.  As a matter of statutory construction, the court rejected that argument, finding that he was unlawfully in the United States the moment he violated the terms and conditions of his visa.  In that case, the defendant had remained in the United States under an F-1 non-immigrant student visa after he was no longer enrolled as a full-time student.