United States of America v. Deangelo Lenard Johnson

Atlanta, GA - Criminal defense lawyer represented defendant with a domestic violence by strangulation and assault charge.

In 1996, Congress prohibited anyone convicted of a misdemeanor that

involved domestic violence from possessing a firearm. See 18 U.S.C. § 922(g)(9).

Senator Frank Lautenberg, who sponsored the legislation, noted that at that time,

each year, somewhere between 1,500 and several thousand women were killed in

domestic-violence incidents involving guns, and guns were present in 150,000 cases

involving domestic violence. 142 Cong. Rec. 22985 (1996) (statement of Sen.

Lautenberg).

Yet, Senator Lautenberg observed, many of the perpetrators of "serious

spousal or child abuse ultimately are not charged with or convicted of felonies. At

the end of the day, due to outdated laws or thinking, perhaps after a plea bargain,

they are, at most, convicted of a misdemeanor.” Id. at 22985. Seeking to "close this

dangerous loophole,” United States v. Hayes, 555 U.S. 415, 426 (2009) (quoting 142

Cong. Rec. 22986 (1996) (statement of Sen. Lautenberg)), Congress banned those

who have been convicted of a "misdemeanor crime of domestic violence”—one

where the victim was essentially a member or former member of the perpetrator's

family, and the crime necessarily involved physical force—from possessing a

firearm. See 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).

Recently, in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), the

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Supreme Court clarified that a domestic-violence misdemeanant does not violate this

prohibition on firearm possession if he does not know he is a domestic-violence

misdemeanant at the time he possesses a gun. This case raises the question of what

it means for a person to know he is a domestic-violence misdemeanant. As we

explain below, we conclude that a person knows he is a domestic-violence

misdemeanant, for Rehaif purposes, if he knows all the following: (1) that he was

convicted of a misdemeanor crime, (2) that to be convicted of that crime, he must

have engaged in at least "the slightest offensive touching,” United States v.

Castleman, 572 U.S. 157, 163 (2014) (internal citations omitted), and (3) that the

victim of his misdemeanor crime was, as relevant here, his wife.

The record establishes that Defendant-Appellant Deangelo Johnson knew all

these things at the time he was found in possession of a gun. So we reject Johnson's

challenge to his conviction for being a domestic-violence misdemeanant while

possessing a firearm. We similarly find no merit to his equal-protection and

Commerce Clause arguments. For these reasons, we affirm Johnson's conviction.

I.

In 2010, law enforcement responded to a call and found that Deangelo

Johnson had "punched, strangled, and threatened to pistol whip” his wife. The

responding officer observed numerous bruises and scratches all over Johnson's wife.

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Based on Johnson's conduct, the State of Florida charged him with the felony

crime of domestic violence by strangulation and assault. Represented by counsel,

Johnson engaged in plea negotiations with the state. Ultimately, Johnson pled guilty

to and was convicted of misdemeanor battery against his wife, in violation of Fla.

Stat. § 784.03(1). He eventually was sentenced to six months in jail for this

conviction.1



Eight years later, in 2018, police officers found a gun on the floor of Johnson's

car while he was being arrested for an outstanding warrant. A federal grand jury

indicted Johnson for having been "previously convicted of a misdemeanor crime of

domestic violence, that is, Domestic Battery,” and knowingly possessing a firearm,

in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). The indictment did not allege

that Johnson knew of his status as a domestic-violence misdemeanant when he

possessed the firearm.

Johnson moved to dismiss his federal indictment for failure to state an offense.

He argued that his Florida offense did not qualify as a misdemeanor crime of

domestic violence for purposes of 18 U.S.C. § 922(g)(9) because he had never lost

his civil rights, and 18 U.S.C. § 921(a)(33)(B)(ii) renders § 922(g)(9) inapplicable

to any person who has been convicted of a misdemeanor crime of domestic violence

1 Initially, Johnson was sentenced to two days in jail and a year of probation. But after two

violations of probation, the court revoked his probation and sentenced him to six months in jail.

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but, as relevant here, has had his civil rights restored. Johnson did not challenge the

indictment on the basis that he did not know that he had been convicted of the

misdemeanor in 2010 for battery against his wife.

The district court denied Johnson's motion to dismiss, relying on Logan v.

United States, 552 U.S. 23 (2007). In Logan, the Supreme Court held that a nearidentical rights-restoration exception in the Armed Career Criminal Act ("ACCA”),

18 U.S.C. § 921(a)(20), applied to only those individuals who had had their civil

rights restored but not to those who had never lost their civil rights in the first place.

552 U.S. at 37.

Johnson then waived his right to a jury trial and agreed to a stipulated-facts

bench trial. Under those stipulated facts, Johnson confirmed that he had previously

been convicted of a misdemeanor crime of domestic violence when he pled guilty in

2010 to committing Florida misdemeanor domestic battery against his wife. He also

confirmed that officers later found a pistol on the floor of his car when they arrested

him for an outstanding warrant. The district court made oral findings of fact and

concluded that based on the stipulated facts, Johnson was guilty of violating 18

U.S.C. § 922(g)(9).

Johnson's presentence investigation report ("PSR”) recommended a total

offense level of 12, with a criminal-history category of II, corresponding to an

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advisory Guidelines sentencing range of 12 to 18 months' imprisonment. Johnson

did not object to the facts or Guidelines calculations in his PSR.

At Johnson's sentencing hearing, Johnson argued for a variance to a sentence

of time served plus one day because he did not "know that he was not supposed to

possess a firearm.” Johnson explained that he was unaware of the firearm

prohibition because he was not a convicted felon—and therefore not advised he

could not possess a firearm—and as a misdemeanant, he was not prohibited from

possessing a firearm by Florida law. The district court acknowledged that "this is

an unusual offense in that it isn't often that individuals end up before the Court

charged with something that they can genuinely say they didn't know was unlawful,

and that under the circumstances of this case, it is significant.” The court imposed

the sentence Johnson requested, reasoning that "under the somewhat unusual facts

of this case that is an appropriate sentence.”

Johnson timely appealed his conviction. We stayed briefing until the Supreme

Court issued its decision in Rehaif holding that, under 18 U.S.C. § 922(g),

knowledge of status is an element of unlawful possession of a firearm. Johnson now

relies on Rehaif in seeking to vacate his conviction. He asserts that both the

indictment and the stipulated facts at the bench trial were insufficient under Rehaif

because they failed to allege and prove that Johnson knew he was a domesticviolence misdemeanant. Separately, he argues that Section 922(g) is

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unconstitutional because (1) it violates his equal-protection rights by treating him

less favorably than similarly situated people convicted of misdemeanor crimes of

domestic violence who lost their civil rights and had them restored, and (2) it violates

the Commerce Clause.

We begin with Johnson's Rehaif arguments. As we have noted, Rehaif

clarified that to convict a defendant of illegal possession of a firearm under Section

922(g), the government must prove that "the defendant knew he possessed a firearm

and also that he knew he had the relevant status when he possessed it.” 139 S. Ct.

at 2194. Johnson's relevant status under Section 922(g) is that of a domesticviolence misdemeanant under 18 U.S.C. § 922(g)(9).

For purposes of Section 922(g)(9), 18 U.S.C. § 921(a)(33)(A) defines the term

"misdemeanor crime of domestic violence” as an offense that is a misdemeanor

under federal, state, or tribal law and "has, as an element, the use or attempted use

of physical force, or the threatened use of a deadly weapon, committed by a current

or former spouse, parent, or guardian of the victim . . . .” Under this definition, it is

enough that the victim "was in fact the offender's spouse (or other relation specified

in [the definition])”—regardless of whether the predicate misdemeanor requires as

an element a domestic relationship between the perpetrator and the victim. Hayes,

555 U.S. at 418.

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As we have noted, Johnson makes two Rehaif-based challenges. First, he

contends that the indictment failed to state an offense because it did not allege that

Johnson knew of his status; and second, Johnson argues that the stipulated facts at

his bench trial were insufficient to prove that he knew his status as a domesticviolence misdemeanant.

A. We review Johnson's Rehaif claims for plain error

Before we get to the merits of Johnson's arguments, we must identify the

applicable standard of review. Generally, we engage in de novo review of challenges

to an indictment or to the sufficiency of the evidence. United States v. Sperrazza,

804 F.3d 1113, 1119 (11th Cir. 2015); United States v. Taylor, 480 F.3d 1025, 1026

(11th Cir. 2007). But when a defendant fails to raise an argument in district court,

we review for plain error. United States v. Reed, 941 F.3d 1018, 1020 (11th Cir.

2019); Sperrazza, 804 F.3d at 1119.

Here, the government assertsthat we should not review Johnson's sufficiencyof-the-evidence argument at all because he invited error by stipulating that the facts

were sufficient to convict him. We disagree.

Johnson explained in district court that he proceeded to a stipulated bench trial

solely because he did not know that he was prohibited under Section 922(g) from

possessing a firearm, since misdemeanants in Florida are not deprived of their civil

rights. Because the elements of Section 922(g) were understood (and were applied

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under binding precedent, see United States v. Jackson, 120 F.3d 1226, 1229 (11th

Cir. 1997), abrogated by Rehaif, 139 S. Ct. 2191), at the time Johnson stipulated,

the facts to which he agreed were sufficient to prove the elements of Section 922(g).

Of course, since Johnson's bench trial and sentencing, Rehaif has clarified the

elements of Section 922(g). Now, there can be no doubt that under Rehaif, the

elements the district court accounted for were incomplete. Johnson's

acknowledgement that the evidence he stipulated to was sufficient to satisfy the

elements of the crime as laid out by then-binding precedent does not preclude him

from asserting that the stipulation is not sufficient in light of the Supreme Court's

subsequent issuance of Rehaif.2

But while Johnson did not invite error in the district court, neither did he raise

the claims that he now makes on appeal. Johnson argues that he did raise them when

he moved to dismiss his indictment and when defense counsel discussed his lack of

knowledge at sentencing. We are not persuaded.

Johnson contended in his motion to dismiss the indictment that he had not

committed a misdemeanor crime of domestic violence as 18 U.S.C. § 921(a)(33)(a)

defines the term because he fell under an exception that Section 921(a)(33)(B)(ii)

recognizes. As we have mentioned, that section renders non-qualifying an

otherwise-qualifying predicate offense under Section 922(g)(9) if, as relevant to

2 Rehaif applies to Johnson's case on direct appeal. See Reed, 941 F.3d at 1021.

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Johnson's argument, the defendant's civil rights have been restored since he was

convicted. Johnson did not argue that his civil rights had been restored. Rather,

because Johnson never lost his civil rights in connection with his conviction for a

Florida domestic-violence misdemeanor, he contended that he was covered by the

Section 921(a)(33)(B)(ii) exception.

That argument is different from Johnson's Rehaif-based contention on appeal

that the indictment is insufficient because it fails to charge that Johnson knew he was

a domestic-violence misdemeanant. In fact, as the district court ruled and as we

explain later, see infra at II.C.2, a different Supreme Court case from Rehaif—

Logan, 552 U.S. 23—forecloses Johnson's Section 921(a)(33)(B)(ii)-based

argument. To be clear, at no point in the district-court proceedings did Johnson ever

argue or even suggest that he was unaware that he had previously been convicted in

Florida of a misdemeanor for engaging in physical violence against his wife.

Similarly, at Johnson's sentencing hearing, Johnson contended only that he

did not know that he was not allowed to possess a gun because no one ever told him

and because Florida never abrogated his civil rights. Johnson did not make the

separate argument that he did not know that he had been convicted of a misdemeanor

for using physical force against his wife.

Because Johnson did not raise his Rehaif arguments in the district court, we

review for plain error. Reed, 941 F.3d at 1020. To establish plain error, Johnson

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must show that (1) an error occurred, (2) the error was plain or obvious, and (3) it

affected his substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005). If Johnson can demonstrate the three plain-error components, we may

exercise our discretion to remedy the error, but only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

B. Rehaif error occurred in the district court, and that error was plain

1. Johnson's indictment contained error, and that error is plain

We begin by reviewing the district court's order on Johnson's motion to

dismiss his indictment for plain error. An error is plain if it is "obvious” and "clear

under current law.” United States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017)

(internal citation omitted).

Indictments must "contain[] the elements of the offense charged and fairly

inform[] a defendant of the charge against which he must defend, and, second,

enable[] him to plead an acquittal or conviction in bar of future prosecutions for the

same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). Here, we focus

on the first half of this equation, which requires an indictment to include the elements

of the crime charged. Id.

Under current law, as clarified by Rehaif, to establish a violation of Section

922(g)(9), the government must prove all of the following elements: (1) the

defendant knew he possessed (2) a "firearm” (as defined by the statute) that (3) had

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traveled in interstate commerce, and (4) he knew he had previously been convicted

of a misdemeanor crime of domestic violence. See Rehaif, 139 S. Ct. at 2195-96.

Johnson's indictment fails to allege that he knew he was a domestic-violence

misdemeanant when he possessed the firearm in this case. So it is insufficient and

plainly erroneous under current law.

The government argues that this omission does not constitute plain error

because Johnson's indictment tracked the language of Sections 922(g)(9) and

924(a)(2), including the knowledge element. And it is true that the indictment did

charge, in relevant part, that Johnson, "having been previously been convicted of a

misdemeanor crime of domestic violence, that is, Domestic Battery, in the County

Court, Duval County, Florida, on or about June 14, 2010, did knowingly possess, in

and affecting interstate commerce, a firearm that is, a Cobra, .380 caliber pistol.”

(emphasis added). But inconsistent with Rehaif, the indictment charged knowledge

with respect to only Johnson's possession of the firearm, not as to Johnson's status

as a domestic-violence misdemeanant.

While it is generally enough for an indictment to track statutory language, as

Johnson's did, simply tracking statutory language does not suffice when the resulting

indictment fails to "fully, directly, and expressly, without any uncertainty or

ambiguity, set forth all the elements necessary to constitute the offen[s]e intended to

be punished.” Hamling, 418 U.S. at 117 (citation and internal quotation marks

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omitted). That was certainly the case here, since Section 922(g)'s phrasing did not

materially change after we decided Jackson, where we held that Section 922(g) did

not require the defendant to know his relevant status to be found guilty. 120 F.3d at

1229. Against that background, no indictment that merely tracked Section 922(g)'s

statutory language could unambiguously set forth all elements of the crime. And for

that reason, the indictment was plainly erroneous. See Reed, 941 F.3d at 1021

(finding plain error when the "indictment failed to allege that he knew [his status]”);

United States v. Moore, 954 F.3d 1322, 1337 (11th Cir. 2020) (same).

3

The government also tries to shoehorn this case into fitting within our

decisions in United States v. Gray, 260 F.3d 1267 (11th Cir. 2001), and United States

v. Woodruff, 296 F.3d 1041 (11th Cir. 2002). We determined that the indictments at

stake there were not defective even though they did not allege a mens rea element.

But Gray and Woodruff are materially different. Each dealt with an

indictment for Hobbs Act robbery that alleged that the defendant "unlawfully”

3 In one of their letters of supplemental authority, the government asserts that Moore

supports its position because we stated that "[t]he absence of an element of an offense in an

indictment is not tantamount to failing to charge a criminal offense against the United States.” 954

F.3d at 1333. We are disappointed by this argument, which relies on an out-of-context quotation

to mischaracterize our opinion in Moore. The language that the government invokes from Moore

comes from our analysis explaining that a Rehaif defect in an indictment does not deprive the

district court of subject-matter jurisdiction, see id. at 1332-37; it has nothing to do with the point

for which the government relies on it. In fact, in that same case, we held that the Rehaif defect in

the indictment there, which similarly tracked the applicable statutory language, see id. at 1332-33,

was plain error because it failed to specifically charge that the defendant knew of his status, see

id. at 1337. There, though, the government conceded plain error.

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"t[ook]” "property” "by means of . . . force, violence, and fear of injury.” Gray, 260

F.3d at 1283; Woodruff, 296 F.3d at 1046. We upheld the sufficiency of those

indictments because "the requisite state of mind may be inferred from other

allegations in the indictment.” Gray, 260 F.3d at 1283; Woodruff, 296 F.3d at 1046.

Indeed, a person cannot take property by means of force, violence, and fear of injury

without knowing he is doing that.

In contrast, a person could hypothetically be convicted of a state-law battery

offense without realizing that it qualified as a misdemeanor crime of domestic

violence. So unlike with the Hobbs Act robbery offenses at issue in Gray and

Woodruff, the knowledge requirement pertaining to Johnson's status could not be

inferred from the allegations in the indictment. And the rule in Gray and Woodruff

cannot save the indictment here.

2. The lack of evidence in the stipulated facts proving that Johnson

knew he was a domestic-violence misdemeanant constituted error,

and that error was plain

As for Johnson's sufficiency-of-the-evidence claim, as the government

appropriately concedes, the error there was plain to the extent that the stipulated facts

did not demonstrate that Johnson had knowledge of his status as a domestic-violence

misdemeanant. As we have explained, that was clearly contrary to the law as we

understand it after Rehaif. See Rehaif, 139 S. Ct. at 2200; Reed, 941 F.3d at 1021.

C. The plain errors did not affect Johnson's substantial rights

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Having concluded that plain error infected both the indictment and the

sufficiency of the evidence based on the stipulated facts, we consider whether either

of these errors affected Johnson's substantial rights. To show that an error affected

his substantial rights, Johnson bears the burden of demonstrating a reasonable

probability that, without the error, the outcome of the proceeding would have been

different. Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); United

States v. Margarita Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018). A reasonable

probability is a "probability sufficient to undermine confidence in the outcome.”

Margarita Garcia, 906 F.3d at 1267 (internal quotation marks omitted). To

determine whether Johnson's substantial rights have been affected, we review the

entire record. Reed, 941 F.3d at 1021.

Whether the plain errors here had any impact on Johnson's substantial rights

hinges on the evidence of record showing whether Johnson knew his status—

domestic-violence misdemeanant—when he possessed the gun. If this evidence is

lacking, then Johnson can meet his burden to demonstrate a reasonable probability

that the outcome of his case would not have been the same in the absence of the

errors. But if not, then he cannot establish a reasonable probability that the outcome

of his case would have differed, and his Rehaif challenges fail.

1. Rehaif's Knowledge-of-Status Requirement

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We begin by identifying what Rehaif's knowledge-of-status requirement

demands. Rehaif was convicted of possessing a firearm as a non-citizen illegally in

the United States, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). Rehaif, 139

S. Ct. at 2194. He argued that he did not know that his presence in the United States

was unlawful. Id. at 2195. The Supreme Court held that the language of Sections

922(g) and 924(a)(2) required proof that when Rehaif possessed the gun, he knew

that he was a non-citizen who was "illegally or unlawfully in the United States.” Id.

at 2198. To explain what it meant by this, the Court pointed to Liparota v. United

States, 471 U.S. 419 (1985), as illustrative of the type of knowledge required.

Rehaif, 139 S. Ct. at 2198.

In Liparota, the defendant challenged his conviction for "knowingly us[ing]

transfer[ring], acquir[ing], alter[ing], or possess[ing] [Food Stamps] in any manner

not authorized by [the statute] or the regulations.” Liparota, 471 U.S. at 420. The

Supreme Court determined that the government had to show not only that the

defendant had used, transferred, acquired, altered, or possessed Food Stamps, but

also that the defendant knew that he was acting in a way that the applicable statute

or regulations did not authorize. Id. at 423-25.

Significantly, though, the Court cautioned, the government did not need to

demonstrate that the defendant "had knowledge of specific regulations governing

food stamp acquisition or possession” that made his transfer or possession of food

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stamps unlawful. Id. at 434. In other words, Liparota did not "create[] a defense of

'mistake of law.'” Id. at 425 n.9. To explain this concept further, the Court pointed

to the offense of knowing receipt of stolen goods. Id. It noted that not knowing that

receipt of stolen goods is a crime is no defense to that offense, but not knowing the

goods were stolen is. Id.

Given this understanding, it is not surprising that in Elonis v. United States,

575 U.S. 723, ___, 135 S. Ct. 2001, 2010 (2015), the Supreme Court characterized

Liparota as having construed the statute there "to require knowledge of the facts that

made the use of the food stamps unauthorized.”4

And the Court summarized its

cases as having "explained that a defendant generally must 'know the facts that make

his conduct fit the definition of the offense,' even if he does not know that those

facts give rise to a crime.” Id. at 2009 (quoting Staples v. United States, 511 U.S.

600, 608 n.3 (1994)).

So for example, in Staples, the Court considered what the government had to

prove to establish a violation of the law that made it illegal for anyone to possess a

machinegun that was not properly registered with the federal government. 511 U.S.

4 Rehaif described the same thing from Liparota a little differently. It said that the Court

"required the Government to prove that the defendant knew that his use of food stamps was

unlawful—even though that was a question of law.” 139 S. Ct. at 2198. We think Elonis's

characterization better helps to describe the type of knowledge that is required and to avoid the

confusion that Rehaif suggests can occur in trying to differentiate between concepts of knowledge

of the law and knowledge of the effect of a so-called collateral matter (here, status) under the law.

See id.

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at 602. The Court held that the government was required to demonstrate, in relevant

part, that the defendant knew that the weapon he possessed had the characteristics

that caused it to fall within the statutory definition of a machinegun. Id. In other

words, the Court explained, the defendant "must know the facts that make his

conduct illegal . . . .” Id. at 619. But the defendant did not need to know the statutory

definition of a machinegun to be convicted. See id.

To determine what facts Johnson needed to know in light of Rehaif, we now

turn to the statutory definition of "misdemeanor crime of domestic violence” under

Section 921(a)(33). This section includes two subsections. As we will explain,

subsection (a)(33)(A) contains the elements of this offense, while subsection

(a)(33)(B) contains affirmative defenses.

a. Section 921(a)(33)(A) contains the elements that establish whether a

person knows he is a domestic-violence misdemeanant

Applying the principles from the teachings of Rehaif, Liparota, Elonis, and

Staples to Section 922(g)(9)'s status requirement, we conclude that, at the time he

possessed the firearm, the defendant must have known that he was convicted of a

misdemeanor, and he must have known the facts that made that crime qualify as a

misdemeanor crime of domestic violence. But Section 922(g)(9) introduces a slight

twist: one of the facts that makes a crime qualify as a misdemeanor crime of

domestic violence is that the crime must categorically require the use or threatened

use of physical force. See 18 U.S.C. § 921(a)(33)(A)(ii); see also Castleman, 572

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U.S. at 168. That may create the misimpression that Rehaif requires technical

knowledge of the law. It doesn't. The Court did not conclude that Congress

expected a person to have performed a Descamps5 analysis on his misdemeanor

crime of conviction to determine whether any element of the statute under which he

was convicted categorically required the use or threatened use of "physical force.”

Rather, the knowledge-of-status requirement demands that the defendant have

known only that, to be convicted of his misdemeanor crime, he must have engaged

in or threatened to engage in conduct that constitutes "physical force” as the Supreme

Court has defined it for purposes of a misdemeanor crime of domestic violence under

Section 922(g)(9)—whether or not the defendant actually knew that the Supreme

Court had defined the term and what that definition was. In Castleman, the

Supreme Court established that conduct consisting of "even the slightest offensive

touching” satisfies Section 921(A)(33)(a)(ii)'s definition of "physical force.” 572

U.S. at 163 (internal citation omitted).

So as relevant here, to satisfy Rehaif's knowledge-of-status requirement under

Section 922(g)(9), the evidence must establish that Johnson knew all the following:

(1) he had been convicted of a misdemeanor under state law, 18 U.S.C. §

921(a)(33)(A)(i); (2) to be convicted of that misdemeanor, he must have knowingly

5 Descamps v. United States, 570 U.S. 254 (2013).

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or recklessly6 engaged in at least "the slightest offensive touching”;7 and (3) the

victim was his current or former spouse at the time he committed the crime, 18 U.S.C

§ 921(a)(33)(A)(ii). When we review the record for these things, we keep in mind

that there need not be "extraordinary evidence that would conclusively demonstrate

[Johnson's] state of mind. Rather, as in any other criminal prosecution requiring

mens rea, [state of mind may be proven] by reference to facts and circumstances

surrounding the case . . . .” Liparota, 471 U.S. at 434; see also Ratzlaf v. United

States, 510 U.S. 135, 149 n.19 (1994) ("A jury may, of course, find the requisite

knowledge on defendant's part by drawing reasonable inferences from the evidence

. . . .”).

b. Section 921(a)(33)(B) does not set forth elements of what it means for a

person to know he is a domestic-violence misdemeanant

Before we leave this discussion to evaluate the evidence of record and

determine whether it sufficiently establishes that Johnson had the necessary

knowledge, we pause to explain why, in demonstrating a domestic-violence

misdemeanant's knowledge of his status, the government does not bear the burden

6 See Voisine v. United States, 136 S. Ct. 2272, 2282 (2016).

7 The Dissent asserts that Rehaif requires the government to "prove the defendant was

aware that his prior conviction included the element of use or attempted use of force.” Dissent at

50. We don't disagree with this principal. We just believe that to prove knowledge that the prior

conviction included an element of use or attempted use of physical force, the government must

show that the defendant knew that his prior offense necessarily required for conviction (i.e., an

element) that he engaged in at least "the slightest offensive touching”—the definition the Supreme

Court has identified for the meaning of "physical force” in Section 921(a)(33). See Castleman,

572 U.S. at 163.

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of proving the misdemeanant's knowledge of the items specified in Section

921(a)(33)(B).

Up until now, we have discussed Section 921(a)(33)(A) primarily. But

Section 921(a)(33) also contains a subparagraph (B). That paragraph provides,

(B)(i) A person shall not be considered to have been convicted of

such an offense for purposes of this chapter, unless—

(I) the person was represented by counsel in the case, or knowingly

and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this

paragraph for which a person was entitled to a jury trial in the

jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to

have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of such

an offense for purposes of this chapter if the conviction has been

expunged or set aside, or is an offense for which the person has been

pardoned or has had civil rights restored (if the law of the applicable

jurisdiction provides for the loss of civil rights under such an offense)

unless the pardon, expungement, or restoration of civil rights

expressly provides that the person may not ship, transport, possess,

or receive firearms.

We now explain how Section 921(a)(33)(B) fits into the legislative scheme.

We see two possibilities: (1) Section 921(a)(33)(B) sets forth elements of the

definition of "misdemeanor crime of domestic violence,” or (2) it states what are

effectively affirmative defenses. The difference between an element and an

affirmative defense is important: while the government must prove knowledge,

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"[w]here affirmative defenses are created through statutory exceptions, the ultimate

burden of persuasion remains with the prosecution, but the defendant has the burden

of going forward with sufficient evidence to raise the exception as an issue.” United

States v. Larouche, 723 F.2d 1541, 1543 (11th Cir. 1984). So while the evidence

must be enough to establish all the elements of knowledge, it need not prove that

affirmative defenses did not apply, unless the defendant first introduced evidence

that one did.

Neither Johnson nor the government makes any specific argument that

Section 921(a)(33)(B) sets forth elements for proving a person knows he is a

domestic-violence misdemeanant.

8

And we agree with their apparent implicit

conclusion that Section 921(a)(33)(B) represents what are effectively affirmative

defenses, since as we explain below, both our test for assessing whether something

constitutes an element and our precedent require that answer.

8 The Dissent suggests that the parties do not raise this issue and indicates its preference

that we not decide this issue. See Dissent at 42 n.1. We don't think that is a tenable option under

the circumstances here. While no party specifically argues that the Section 921(a)(33)(B)

provisions do or do not constitute elements of a "misdemeanor crime of domestic violence” under

Section 921(a)(33), Johnson most assuredly does contend that the Rehaif errors here constituted

plain errors that affected his substantial rights because, Johnson claims, the government did not

establish that he knew he was a domestic-violence misdemeanant. To ascertain whether that is the

case, we must first identify what the evidence of record was required to show to demonstrate

whether Johnson knew he was a domestic-violence misdemeanant. That requires us to determine

what parts of Section 921(a)(33) specify elements of the definition of "misdemeanor crime of

domestic violence.” Assuming without deciding that Section 921(a)(33)(B) sets forth affirmative

defenses is not consonant with evaluating whether the plain errors here affected Johnson's

substantial rights, since if the Section 921(a)(33)(B) components were elements, the government

would be required to prove them, and we would need to study the record to see whether it contained

sufficient evidence to establish each of these components.

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To evaluate whether a statutory exception serves as an element of a crime, we

consider three factors. United States v. Kloess, 251 F.3d 941, 944 (11th Cir. 2001).

We start with the statutory language and structure to see whether they yield any clues

about the exception's role. Id. Second, we review the statute's legislative history to

learn whether Congress intended for the exception to serve as an element of the

crime. Id. And third, we assess whether the government is in a good position to find

evidence that could prove the exception's applicability.

9

Id.

Beginning with the statutory language and structure, we first observe that

Section 921(a)(33) is divided into two parts: (A) and (B). Subparagraph (A) begins,

"Except as provided in subparagraph (C),[10] the term 'misdemeanor crime of

domestic violence' means an offense that— . . . .” Subparagraphs (B)(i) and (B)(ii)

each start, "A person shall not be considered to have been convicted of such an

offense for purposes of this chapter,” "unless,” in the case of subparagraph (B)(i),

and "if,” in the case of subparagraph (B)(ii), certain conditions exist. Perhaps these

9 The Dissent takes issue with this third factor—whether the government is in a good

position to find evidence that could prove the exception's applicability. See Dissent at 42 n.1. But

our precedent has adopted this factor as part of the test for whether a provision constitutes an

element or an affirmative defense, and we are bound by our prior-precedent rule to follow that

precedent. See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). Plus, as

we have noted, the prosecution still has the ultimate burden of persuasion on affirmative defenses.

Larouche, 723 F.2d at 1543.

10 Section 921(a)(33) does not contain a subparagraph (C). But as we discuss above,

subparagraph (B) does set forth statutory exceptions to when a person may be considered to have

been convicted of a "misdemeanor crime of domestic violence.” We therefore construe the

reference to subparagraph (C) to be a typographical error intended to refer to subparagraph (B).

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words could indicate congressional intent to make the subparagraph (B) factors

elements of the definition of "misdemeanor crime of domestic violence.” But based

on the rest of our analysis, we don't think so.

According to its statutory language, the purpose of subparagraph (A) is to state

what the term "misdemeanor crime of domestic violence” means. See 18 U.S.C. §

921(a)(33)(A) ("the term 'misdemeanor crime of domestic violence' means an

offense that . . .”). Congress did not place the provisions of subparagraphs (A) and

(B) in a single section—though it could have. We think that separating the

subparagraph (A) provisions from those in subparagraph (B) suggests that Congress

envisioned different roles for the two subparagraphs. Based on the structure

Congress chose, we believe Congress viewed subparagraph (A) as setting forth the

elements of a "misdemeanor crime of domestic violence” and subparagraph (B) as

articulating what are effectively affirmative defenses.

As for the legislative history, we found statements from a single Senator

stating his view that subparagraph (B) "has no real substantive effect” and "really

does not change anything,” 142 Cong. Rec. 11842 (Statement of Sen. Lautenberg).

And we found a Congressional Research Service report published a few months after

the bill passed, characterizing Section 921(a)(33)(B)(i) as "statutory defenses to the

validity of the predicate conviction.” Cong. Rsch. Serv., Gun Ban for Persons

Convicted of Misdemeanor Crime of Domestic Violence: Ex Post Facto Clause and

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Other Constitutional Issues (Dec. 30, 1996). Though both suggest that the

subparagraph (B) components are intended to be defenses and not elements, we

haven't found anything that purports to be indicative of the sense of the Congress.

So we do not consider legislative history in our analysis.

When we look to whether the government is in a good position to prove the

exculpatory exceptions set forth in subparagraph (B), we conclude that relative to

the defendant, it is not. In explaining why, we start with subparagraph (B)(ii), which

excepts from the definition of "misdemeanor crime of domestic violence” any

otherwise qualifying conviction that has been "expunged or set aside, or is an offense

for which the person has been pardoned or has had civil rights restored.” 18 U.S.C.

§ 921(a)(33)(B)(ii).

We have previously analyzed a similar exception to determine whether it was

an element or an affirmative defense. In United States v. Jackson, 57 F.3d 1012

(11th Cir. 1995), we looked at 18 U.S.C. § 921(a)(20)'s definition of "crime

punishable by imprisonment for a term exceeding one year.” At that time, the statute

said,

What constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings

were held. Any conviction which has been expunged, or set aside or

for which a person has been pardoned or has had civil rights restored

shall not be considered a conviction for purposes of this chapter, unless

such pardon, expungement, or restoration of civil rights expressly

provides that the person may not ship, transport, possess, or receive

firearms.

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Jackson, 57 F.3d at 1015 (quoting 18 U.S.C. § 921(a)(20) (West Supp. 1994)

(emphasis added by Jackson Court)).

We concluded that the italicized part of the statutory defenses was not an

element. See id. at 1016-17. In reaching this conclusion, we quoted the Tenth

Circuit for the proposition that the defendant is in a better position than the

government to show that his conviction has been expunged, his civil rights have been

restored, or he has been pardoned:

As a practical matter, requiring the government to negate the

possibility, in every § 922(g)(1) case, that each defendant's prior

convictions had been expunged or set aside, that a pardon had been

granted, or that civil rights had been restored, would impose an onerous

burden. A defendant ordinarily will be much better able to raise the

issue of whether his prior convictions have been expunged or set aside,

whether a pardon has been granted, or whether civil rights have been

restored.

Id. at 1016 (quoting United States v. Flower, 29 F.3d 530, 535 (10th Cir. 1994)).

We, of course, are bound by Jackson. See United States v. Steele, 147 F.3d 1316,

1318 (11th Cir. 1998) (en banc). So we conclude that the defendant is better situated

than the government to demonstrate any of the defenses listed under subparagraph

(B)(ii).

That brings us back to Section 921(a)(33)(B)(i). As a reminder, that provision

excepts from the definition of "misdemeanor crime of domestic violence”

convictions where the defendant was not represented by (or did not knowingly and

intelligently waive the right to be represented by) counsel and those where the

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defendant was entitled to be tried by a jury but was not and did not knowingly and

intelligently waive the right to try the case to a jury.

Although we focused on a restoration-of-civil-rights exception in Jackson, we

also relied on another of our precedents, United States v. Ruo, 943 F.2d 1274, 1276

(11th Cir. 1991), which helps explain why it would also be harder for the government

to shoulder the burden of demonstrating the exceptions in subparagraph (B)(i) here.

We cited Ruo for the proposition that as a practical matter, it makes sense for the

defendant to bear the weight of demonstrating defects in prior convictions. Id. We

explained,

[U]nder § 924(e), the burden is properly placed on the defendant raising

the challenge to show the constitutional invalidity of the prior

convictions. Any given conviction might suffer any of a myriad of

constitutional defects. It would approach the absurd to undertake to

prove guilt all over again in every predicate conviction . . . . Instead,

the government's burden is properly met when it introduces evidence

that there are at least three prior violent felony convictions. The

defendant must then point out any defects in a particular prior

conviction.



Jackson, 57 F.3d at 1016 (quoting Ruo, 943 F.2d at 1276). Though Section 924(e)

did not list exceptions built into it, the point is that we have previously concluded

that the defendant is in the better position to know of the facts subparagraph (B)(i)

says remove a conviction from the definition of "misdemeanor crime of domestic

violence.”

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Plus, returning for a moment to our first consideration—the language and

structure of the statute—that subsections (i) and (ii) both appear under subparagraph

(B) suggests that Congress viewed the two provisions to have a similar function in

the overall structure of Section 922(a)(33). So since subsection (B)(ii) is an

affirmative defense, it is more likely that subsection (B)(i) is as well.

In short, we conclude that the government does not have an affirmative

obligation to prove or disprove the defendant's knowledge of the components listed

in subparagraph (B) to demonstrate that the defendant knew he was a domesticviolence misdemeanant, unless the defendant first brings forward evidence

suggesting that his prior conviction is excepted from the definition of "misdemeanor

crime of domestic violence.”

2. The record establishes that, for purposes of Rehaif's knowledge

requirement, Johnson knew he was a domestic-violence misdemeanant

Now that we've established what knowledge a domestic-violence

misdemeanant must possess under Rehaif, we consider whether the record here

demonstrates that Johnson had that knowledge at the time he was found with the

firearm in this case. To make this determination, we look here to Johnson's

stipulation at trial and the undisputed facts in his PSR, which the district court

adopted as factual findings. As we have explained, when a defendant does not object

to a district court's factual findings, he is bound by them and may not argue that they

contained error. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).

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Review of these documents reveals that the record includes sufficient evidence to

establish that Johnson had the requisite knowledge of his status as a domesticviolence misdemeanant when he was found with the gun in his possession.

First, Johnson knew at the time he possessed the gun that he had been

convicted of the misdemeanor crime of battery under Florida Statute § 784.03(1).

We know this because he stipulated at the bench trial that he had pled guilty to the

charge of "domestic battery” under the laws of the State of Florida,

11 and Johnson's

Florida conviction identified the statute of conviction as Florida Statute §

784.03(1)(a), Florida's battery statute. Johnson's PSR states that he was originally

charged with domestic battery by strangulation and assault, which Florida Statute

§ 784.041 renders a felony. That he eventually pled to the misdemeanor instead also

supports the notion that he knew he was convicted of a misdemeanor under Florida

law. Plus, Johnson ultimately spent six months in jail as a result of that conviction—

11 The Dissent seems to suggest that Johnson could not have known these things at the time

he possessed the firearm because the evidence that proves he did came from his stipulation at the

bench trial, which occurred after he possessed the gun. See Dissent at 51 (e.g., "[N]either [the

stipulation nor the PSR] show that Mr. Johnson 'knew . . . when he possessed' the firearm that he

was a domestic-violence misdemeanant.”) (quoting Rehaif, 139 S. Ct. at 2194 (emphasis added)).

We respectfully disagree. In this case, the contents of the stipulation and the PSR identify what

Johnson knew at the time that he pled guilty to the underlying misdemeanor crime of domestic

violence. For example, he knew at the time he pled guilty to the misdemeanor that he was pleading

guilty to a misdemeanor because, the stipulation shows, he pled down from a felony, and he

eventually spent six months in jail for his conviction. To spend time in jail for this offense, it must

have been a misdemeanor or a felony. And he stated he knew it was not a felony. Indeed, that

was his defense: that he was not told that he could not possess a firearm because he had not been

convicted of a felony, and misdemeanants in Florida do not lose their civil rights. So while these

facts are documented in the stipulation and PSR, which were created after Johnson possessed the

gun, they are sufficient to infer he knew these facts before he possessed the gun.

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another indication that he must have been aware of it. Finally, during this case,

Johnson admitted he knew he was a misdemeanant when he explained that he did

not know he was prohibited from possessing a firearm because he was only a

misdemeanant, and misdemeanants in Florida do not lose their civil rights.

Second, Johnson knew that the misdemeanor to which he pled guilty—

battery—required that he had, at a minimum, recklessly engaged in at least "the

slightest offensive touching.” Castleman, 572 U.S. at 163 (internal citations

omitted). The offense of battery under Florida law requires that the defendant have

"[a]ctually and intentionally touche[d] or str[uck] another person against the will of

the other,” Fla. Stat. § 784.03(1)(a)(1.). A person cannot intentionally touch

someone against her will without, at a minimum, recklessly committing at least "the

slightest offensive touching.”

And Johnson stipulated at his bench trial here that with the assistance of

counsel, he "knowingly and intelligently waived his right to a jury trial and pled

guilty” to the offense of battery. The Supreme Court has explained that a knowing

and intelligent plea requires that the defendant have been informed of the crime's

elements. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Since Johnson stipulated

that he knowingly and intelligently pled guilty to battery, the record establishes that,

at the time he pled guilty to battery, he knew he was pleading guilty to that offense,

and he knew that one of the elements of that offense required him to have "[a]ctually

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and intentionally touche[d] or str[uck] another person against the will of the other.”

Fla. Stat. § 784.03(1)(a)(1.). That means that the record shows that Johnson knew

an element of his offense of conviction required that he had necessarily engaged in

at least "the slightest offensive touching.”

And third, as we have just noted and as Johnson stipulated to at his bench trial

here, the victim of Johnson's prior Florida misdemeanor battery was his wife.

Obviously, Johnson knew she was his wife.

So the record establishes that Johnson knew at the time he was found with the

firearm in this case that he had previously been convicted of a misdemeanor crime

of domestic violence. And for that reason, no reasonable probability exists that the

outcome would be different on remand.12 We therefore conclude that the plain errors

12 The Dissent argues that our conclusion creates a split with the Seventh Circuit's decision

in United States v. Triggs, 963 F.3d 710 (7th Cir. 2020), because "'complexity of the statutory

definition' of a misdemeanor crime of domestic violence gives defendants 'at least a plausible

argument' that they were unaware they were convicted of such an offense.” Dissent at 57 n.7

(quoting Triggs, 963 F.3d at 716). We think not. True, the Seventh Circuit noted "the complexity

of the statutory definition,” but that alone was not the reason why that court remanded the case.

Rather, unlike here, in Triggs, the defendant pled guilty to his Section 922(g)(9) offense, and the

proceedings that led to the defendant's underlying domestic-violence misdemeanor conviction

were "messy.” Id. at 716. So the Seventh Circuit was able to conclude that Triggs had a "colorable

argument that he was unaware that he was convicted of a misdemeanor crime of domestic

violence,” without ever analyzing what it means for a domestic-violence misdemeanant to know

he is a domestic-violence misdemeanant. Id. The record here does not give us that option. Unlike

Triggs, Johnson was convicted after a bench trial, not a guilty plea, and the proceedings that led to

his conviction for a misdemeanor crime of domestic violence were straight-forward, not "messy.”

As a result, we must proceed through the analysis in order, identifying what it means for a

domestic-violence misdemeanant to know he is a domestic-violence misdemeanant and then

assessing the record to see whether it contains sufficient evidence to establish the defendant's

requisite knowledge. By doing so, we do not create a split with Triggs because Triggs's decision

to remand rested on "the complexity of the statutory definition” in combination with the "messy”

state-court-conviction record.

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in the indictment and in the sufficiency of the evidence stipulated to at the bench

trial did not affect Johnson's substantial rights.13

We are not persuaded by Johnson's contentions to the contrary. Johnson's

arguments rest mainly on the fact that he did not "know he was prohibited from

federal possession of a firearm.” He points to the fact that his Florida conviction

never resulted in the loss of his civil rights, including his right to possess a firearm

under Florida law. He also relies on the district court's statement at sentencing that

"this is an unusual offense” because Johnson was charged with something he could

"genuinely say [he] didn't know was unlawful.”

While we can understand Johnson's frustration with the situation, these facts

pertain to whether Johnson knew he personally was prohibited from possessing a

firearm under federal law, not whether he knew he committed a misdemeanor crime

of domestic violence. But under Rehaif's knowledge-of-status requirement, that a

defendant does not recognize that he personally is prohibited from possessing a

13 The Dissent suggests that the outcome here would have been different in the absence of

the Rehaif errors because "if Mr. Johnson had known that the government needed to prove he knew

his status, it would have made no sense for him to stipulate to that point, instead of putting the

government to its proof.” Dissent at 53. We respectfully disagree. The sole reason why Johnson

went to trial here was because he never lost his civil rights as a result of his conviction for a

misdemeanor crime of domestic violence, and he thought that was a defense under Section

921(a)(33)(B)(ii). Johnson never suggested during his trial here that he did not know that he had

been convicted of a misdemeanor crime that had as an element the use of at least "the slightest

offensive touching” against his wife. And as we have explained, the record here establishes that

Johnson, in fact, knew at the time he possessed the firearm here that he had been convicted of a

misdemeanor crime that had as an element the use of at least "the slightest offensive touching”

against his wife.

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firearm under federal law is no defense if he knows he has a particular status and

that status happens to be one prohibited by § 922(g) from possessing a firearm.

United States v. Maez, 960 F.3d 949, 954-55 (7th Cir. 2020). Rather, that is a

mistake of law, which is not a defense. See Liparota, 471 U.S. at 425 n.9. As we

have mentioned, "a defendant generally must 'know the facts that make his conduct

fit the definition of the offense,' even if he does not know that those facts give rise

to a crime.” Elonis, 575 U.S. at 2009 (quoting Staples, 511 U.S. at 608 n.3).

And to the extent that Johnson continues to assert that Section

921(a)(33)(B)(ii)'s exception to the definition of a domestic-violence misdemeanant

for anyone whose civil rights have been restored applies to him because Florida

never abrogated his rights in the first place, that argument is foreclosed under Logan,

552 U.S. 23. In Logan, the Supreme Court considered a materially indistinguishable

exception that applies to the Armed Career Criminal Act. Id. at 26. The provision

at issue there—18 U.S.C. § 921(a)(20)—authorized the disregarding of a prior

conviction if the conviction "has been expunged, or set aside,” or the offender "has

been pardoned or has had civil rights restored.” Id. Like Johnson, Logan had never

had his civil rights abrogated in the first place, despite his otherwise-qualifying

convictions under the Armed Career Criminal Act. Id. He contended that Section

921(a)(20)'s exception for those who had had their civil rights restored after an

otherwise-qualifying conviction reached him. Id.

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The Supreme Court disagreed. See id. It reasoned that the plain language of

the provision, which used the word "restored,” did not support Logan's construction.

Id. at 31-32.

For further support, the Court pointed to Section 921(a)(33)(B)(ii), the very

exception Johnson invokes here. The Court noted that it provides, in relevant part,

that "[a] person shall not be considered to have been convicted of [a misdemeanor

crime of domestic violence] [for purposes of Section 922(g)(9)] if the conviction . . .

is an offense for which the person . . . has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil rights under such an offense)

. . . .” Logan, 552 U.S. at 36 (quoting 18 U.S.C. § 921(a)(33)(B)(ii)) (emphasis

added by Logan Court). As the Court explained, "the emphasized parenthetical

qualification shows that the words 'civil rights restored' do not cover a person whose

civil rights were never taken away.”14 Id. So Johnson's argument that he does not

satisfy the definition of domestic-violence misdemeanant because Florida never

abrogated his civil rights necessarily fails. And since Section 921(a)(33)(B)(ii) does

not make Section 921(a)(33)'s definition of "misdemeanor crime of domestic

14 Senator Lautenberg's statement on what became codified at 18 U.S.C. § 921(a)(33)

reflects, as the Supreme Court in Logan believed, that Congress was aware that most people

convicted of a misdemeanor do not lose their civil rights. See 142 Cong. Rec. S11872, S11877-

78 (1996) (Statement of Sen. Lautenberg) ("Loss of [civil] rights generally does not flow from a

misdemeanor conviction, and so this language is probably irrelevant to most, if not all, of those

offenders covered because of the new ban [on firearm possession by domestic-violence

misdemeanants].”).

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violence” inapplicable to someone whose civil rights were never breached in the first

place, there was nothing for the government to refute with respect to the valid

affirmative defenses encompassed within Section 921(a)(33)(B)(ii).15

III.

Next, we turn to Johnson's contentions that Section 922(g)(9) is

unconstitutional because (1) it violates Johnson's equal-protection rights under the

Due Process Clause of the Fifth Amendment; and (2) it violates the Commerce

Clause. Although we generally review de novo the constitutionality of a statute, we

review such claims, when they are not raised in the district court, for plain error.

United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). As with the Rehaif

claims, Johnson did not make his constitutional arguments in the district court. So

we review them for plain error.

A.

15 The Dissent suggests that the outcome of Johnson's proceeding would have differed in

the absence of the Rehaif errors since the government would have been required to prove that

Section 921(a)(33)(B)(ii)'s affirmative defenses did not apply to Johnson because Johnson invoked

that exception to argue that he did not qualify as a domestic-violence misdemeanant. See Dissent

at 55. But Johnson relied on Section 921(a)(33)(B)(ii) only because his civil rights were never

abrogated. Section 921(a)(33)(B)(ii), though, provides no exception to the definition of domesticviolence misdemeanant for an otherwise-qualifying individual whose civil rights were never taken.

A defendant cannot make an affirmative defense relevant by raising a ground that is not even

arguably covered by that affirmative defense. Simply put, Johnson never properly raised an

affirmative defense under Section 921(a)(33)(B)(ii) because he did not allege any of the conditions

set forth by that section that would exempt him from having committed a "misdemeanor crime of

domestic violence,” so the government had no obligation to prove that that exception does not

apply.

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The terms of the Fourteenth Amendment guarantee equal protection of state

law. U.S. Const. amend. XIV. When it comes to the concept of equal protection

under federal law, the Fifth Amendment carries the load. Hampton v. Mow Sun

Wong, 426 U.S. 88, 100 (1976). Unlike the Fourteenth Amendment, the Fifth

Amendment contains no express equal-protection clause. See U.S. amend. V. But

the Fifth Amendment's guarantee of due process under the law embodies within it

the concept of equal justice under the law. Hampton, 426 U.S. at 100.

Johnson contends that Logan's reading of Section 921(a)(33)(B)(ii), as

applied to him, causes Section 922(g) to violate equal protection. As we have

explained, under Logan, domestic-violence misdemeanants whose civil rights were

never abrogated by the state where they were convicted are not excepted from

Section 921(a)(33)'s definition of who has committed a "misdemeanor crime of

domestic violence” for purposes of Section 922(g). 522 U.S. at 26. Yet those whose

convictions—whether for misdemeanor crimes of domestic violence or for

felonies—resulted in the forfeiture of their civil rights but who later had those civil

rights restored do not violate Section 922(g) by possessing a firearm. See 18 U.S.C.

§ 921(a)(33)(B)(ii), (a)(20). Johnson argues that domestic-violence misdemeanants

who never lost their civil rights in the first place are therefore unconstitutionally

treated less favorably than those—both domestic-violence misdemeanants and

felons—who have had their civil rights restored.

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No Supreme Court or Eleventh Circuit case holds that Section 922(g)'s

application to domestic-violence misdemeanants who never lost their civil rights but

not to felons and to domestic-violence misdemeanants whose rights were abrogated

but then restored violates equal protection. In this Circuit, when no Supreme Court

or Eleventh Circuit precedent directly resolves a legal issue, no plain error on that

issue can exist. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.

2003). Lejarde-Rada governs the situation here. So here, Johnson cannot establish

plain error.

B.

Johnson also argues that Section 922(g)(9) violates the Commerce Clause

both facially and as applied. He contends that the Commerce Clause does not allow

Congress to criminalize the intrastate possession of a firearm merely because the

firearm once traveled in interstate commerce.

Once again, Johnson did not raise his argument in the district court. So once

again, we apply plain-error review. This time, though, as Johnson recognizes,

binding precedent addresses this issue. And that binding precedent rejects Johnson's

position. In United States v. McAllister, we held that Section 922(g), which makes

it illegal for a qualifying person to "possess in or affecting commerce, any firearm

or ammunition,” is a constitutional exercise of Congress's power under the

Commerce Clause. 77 F.3d 387, 390 (11th Cir. 1996) (citing 18 U.S.C. § 922(g))

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(emphasis added by McCallister court). We explained that Section 922(g) regulates

firearms "that have a connection to interstate commerce; the statute explicitly

requires such a connection” with its "in or affecting” language. Id.

Since we issued McAllister, others have also challenged Section 922(g) as an

unconstitutional reach beyond what the Commerce Clause authorizes. And we have

held there, as we hold here, that Circuit precedent forecloses that argument. See

United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir. 1997); Wright, 607 F.3d at

715. Under our prior-precedent rule, we must follow the precedent of earlier panels

unless and until the prior precedent is overruled or undermined to the point of

abrogation by the Supreme Court or this Court sitting en banc. Steele, 147 F.3d at

1318. As neither exception applies here, we reject Johnson's Commerce Clause

argument.

For the reasons we have explained, we affirm Johnson’s conviction.

AFFIRMED.