Ohm v. United States

— 1 — — 2 — — 3 — UNITED STATES DISTRICT COURT — 4 — DISTRICT OF NEVADA — 5 — UNITED STATES OF AMERICA, Case No. 3:18-cr-00012-HDM-WGC — 6 — Case No. 3:20-cv-00360-HDM Plaintiff, — 7 — v. ORDER — 8 — JASON JEREMY OHM, — 9 — Defendant. — 10 — Before the court is defendant Jason Jeremy Ohm’s motion to — 11 — vacate pursuant to 28 U.S.C. § 2255 (ECF No. 28). The government — 12 — has responded (ECF No. 30), and Ohm has replied (ECF No. 31). — 13 — On January 31, 2018, Ohm was charged by way of indictment — 14 — with one count of felon in possession of a firearm in violation of — 15 — 18 U.S.C. § 922 (g). (ECF No. 1). Pursuant to an agreement, Ohm — 16 — entered a plea of guilty to the charge. (ECF Nos. 16 & 18). The — 17 — court thereafter sentenced Ohm to 57 months in prison. (ECF Nos. — 18 — 23 & 24). — 19 — Section 922(g) prohibits the possession of a firearm by — 20 — several categories of persons, including any person who has been — 21 — convicted in any court of a crime punishable by a term of more — 22 — than one year in prison. 18 U.S.C. § 922 (g)(1). At the time of his — 23 — conviction, Ohm had 2 prior felony convictions, including battery — 24 — with a deadly weapon, for which he received a five-year sentence, — 25 — and ex-felon in possession of a firearm, for which he received a — 26 — sentence of twelve to thirty months. When Ohm was charged and — 27 — entered his plea in this case, the government was not required to — 28 — 1 prove that he knew he was a felon. , 327 2 F.3d 788, 798 (9th Cir. 2003). But after Ohm was sentenced, the 3 U.S. Supreme Court concluded that a defendant may be convicted 4 under § 922(g) only if the government proves that the defendant 5 “knew he belonged to the relevant category of persons barred from 6 possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191 , 7 2200 (2019). On the basis of Rehaif and the government’s failure 8 to charge his knowledge of status, Ohm now moves to vacate his 9 conviction. 10 Pursuant to 28 U.S.C. § 2255 , a federal inmate may move to 11 vacate, set aside, or correct his sentence if: (1) the sentence 12 was imposed in violation of the Constitution or laws of the United 13 States; (2) the court was without jurisdiction to impose the 14 sentence; (3) the sentence was in excess of the maximum authorized 15 by law; or (4) the sentence is otherwise subject to collateral 16 attack. Id. § 2255(a). 17 Ohm argues that the omission of the Rehaif element from the 18 indictment violated his Fifth Amendment rights guaranteeing that 19 a grand jury find probable cause to support all the necessary 20 elements of the crime and to not be tried on a fatally defective 21 indictment and his Sixth Amendment rights to notice of the charges 22 and effective assistance of counsel. He also alleges that the 23 defective indictment deprived the court of jurisdiction. The 24 government asserts that Ohm has waived his right to bring these 25 claims, that his claims are procedurally defaulted, and that the 26 government is not required to prove the defendant knew his 27 possession of firearms was unlawful. — 28 — 1 As part of his plea, Ohm “knowingly and expressly waive[d] 2 all collateral challenges, including any claims under 28 U.S.C. § 3 2255, to his conviction, sentence, and the procedure by which the 4 Court adjudicated guilt and imposed sentence, except non-waivable 5 claims of ineffective assistance of counsel.” (ECF No. 16 at 11). 6 Such “[a]n unconditional guilty plea waives all non-jurisdictional 7 defenses and cures all antecedent constitutional defects, allowing 8 only an attack on the voluntary and intelligent character of the 9 plea.” United States v. Brizan, 709 F.3d 864 , 866–67 (9th Cir. 10 2013); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973); 11 United States v. Espinoza, 816 Fed. App’x 82, 85 (9th Cir. June 1, 12 2020) (unpublished disposition) (unconditional plea waiver 13 precludes all Fifth and Sixth Amendment claims except to the extent 14 they contest the court’s jurisdiction or the voluntariness of the 15 plea). Thus, except to the extent Ohm attacks the jurisdiction of 16 the court and asserts deprivation of effective assistance of 17 counsel,1 his claims are waived.2 18 Ohm’s jurisdictional argument is without merit. The omission 19 of an element from the indictment does not affect the court’s 20 jurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002); 21 United States v. Ratigan, 351 F.3d 957 , 962–63 (9th Cir. 2003); 22 see also United States v. Jackson, 2020 WL 7624842 , at *1 (9th 23 Cir. Dec. 22, 2020) (unpublished disposition) (rejecting the 24 defendant’s argument that omission of the Rehaif element deprived — 25 — 26 1 Ohm does not attack the voluntariness of his plea. 27 2 c ouT rh te s c to hu ar tt noa ng er e oe fs tw hi et eh x ct eh pe t iw oe nl sl u- nr de ea rs o Tn oe ld l eo tp ti n ti oo n ts h e o cf o ls le av te er ra al l 28 Kc eh la bl cl he ,n g 2e 0 w 2a 1i v We Lr 9a 6p 2p 4l 2i ,e s a ti n * 2t h (i Ds . c Na es ve .. JS ae ne ., 7e ,. g 2. 0, 2 1U )n .i ted States v. 1 the district court of jurisdiction); , — 2 — 2020 WL 4218317 , at *1 (July 23, 2020) (unpublished disposition) 3 (same); Espinoza, 2020 WL 2844542 , at *1 (same); United States v. 4 Moore, 954 F.3d 1322, 1332 (11th Cir. 2020); United States v. 5 Hobbs, 953 F.3d 853, 856 (6th Cir. 2020); United States v. Balde, — 6 — 943 F.3d 73, 88-92 (2d Cir. 2019); United States v. Burghardt, 939 7 F.3d 397 , 402 (1st Cir. 2019). Cf. United States v. Singh, 979 8 F.3d 697 , 730 (9th Cir. 2020) (on direct appeal, reviewing omission 9 of Rehaif element from indictment for plain error). The indictment 10 otherwise sufficiently states a criminal offense: possession of a 11 firearm by a convicted felon in violation of 18 U.S.C. § 922 (g)(1). 12 Moreover, to the extent they are not otherwise waived, Ohm’s 13 claims are procedurally defaulted. 14 “If a criminal defendant could have raised a claim of error 15 on direct appeal but nonetheless failed to do so, he must 16 demonstrate” either “cause excusing his procedural default, and 17 actual prejudice resulting from the claim of error,” United States 18 v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993), or that he is 19 actually innocent of the offense, Bousley v. United States, 523 20 U.S. 614, 622 (1998). “[C]ause for a procedural default on appeal 21 ordinarily requires a showing of some external impediment 22 preventing counsel from constructing or raising the claim.” Murray 23 v. Carrier, 477 U.S. 478, 492 (1986). Actual prejudice “requires 24 the petitioner to establish ‘not merely that the errors at ... 25 trial created a possibility of prejudice, but that they worked to 26 his actual and substantial disadvantage, infecting his entire 27 trial with error of constitutional dimensions.’” Bradford v. — 28 — 1 , 923 F.3d 599, 613 (9th Cir. 2019) (internal citation 2 omitted). 3 Ohm could have raised his claims on direct appeal but did not 4 do so. They are therefore procedurally defaulted. It is unnecessary 5 to resolve whether Ohm can demonstrate cause for the default, 6 because even if he could, he cannot demonstrate prejudice.3 7 Ohm committed the instant offense after receiving a five-year 8 sentence for battery with a deadly weapon and a twelve- to thirty9 months sentence for possession of a firearm by an ex-felon. (PSR 10 ¶¶ 32 & 45). Further, Ohm acknowledged in his plea agreement that 11 he had been previously convicted of a felony. (ECF No. 16 at 312 5). Finally, and most importantly, Ohm acknowledged during his 13 plea colloquy both that he possessed the firearm after having 14 sustained a prior felony conviction and that he was aware at the 15 time of his offense that he was not allowed to possess a firearm. 16 In light of Ohm’s admissions that he knew he was a convicted felon 17 and that he was prohibited from possessing firearms, combined with 18 his criminal history, the court is not persuaded that the outcome 19 of the proceedings would have been any different had the grand 20 jury been presented with, and the indictment had alleged, the 21 Rehaif element. He thus suffered no prejudice from the omission of 22 the Rehaif element.4 23 Ohm argues that he suffered prejudice because he was convicted 24 by a court lacking jurisdiction. For the reasons previously — 25 — — 26 — 3 Ohm does not argue actual innocence. 27 4 To the extent Ohm has asserted an effective assistance of counsel 28 claim, the claim fails on the same grounds. 1 discussed, this argument is without merit because the errors Ohm 2 complains of did not deprive the court of jurisdiction. 3 Ohm alternatively argues that he is not required to 4 demonstrate prejudice to obtain relief because the omission is 5 structural error. 6 “[C]ertain errors, termed structural errors, might affect 7 substantial rights regardless of their actual impact on an 8 appellant’s trial.” United States v. Marcus, 560 U.S. 258 , 263 9 (2010) (internal punctuation and citations omitted). Thus, 10 structural error “warrant[s] habeas relief without a showing of 11 specific prejudice.” United States v. Withers, 638 F.3d 1055 , 1063– 12 64 (9th Cir. 2011). “But structural errors are a very limited class 13 of errors that affect the framework within which the trial 14 proceeds, such that it is often difficult to assess the effect of 15 the error.” Marcus, 560 U.S. at 263 (internal punctuation and 16 citations omitted). Cases in which the Supreme Court has found 17 structural error include total deprivation of counsel, lack of an 18 impartial trial judge, violation of the right to a public trial 19 and an erroneous reasonable-doubt instruction. See id. (discussing 20 cases). In contrast, errors that have been found to be non21 structural include where the court instructed on an invalid 22 alternative theory of guilt, gave an instruction omitting an 23 element of the offense, or erroneously instructed the jury on an 24 element. Id. at 264 (discussing cases). 25 The Ninth Circuit has not yet addressed in a published opinion 26 whether omission of the Rehaif element from the indictment is 27 structural error. But it has held that the error is not structural 28 in at least one unpublished decision. See United States v. Jackson, — 1 — 2020 WL 7624842 , at *1 n.1 (9th Cir. Dec. 22, 2020). And the First, 2 Third, Fifth, Seventh, Eighth, and Tenth Circuits have concluded 3 that Rehaif errors are not structural. United States v. Patrone, — 4 — 985 F.3d 81, 86 (1st Cir. 2021); United States v. Nasir, 982 F.3d. 5 144, 171 n.30 (3d Cir. Dec. 1, 2020); United States v. Lavalais, — 6 — 960 F.3d 180, 187 (5th Cir. 2020); United States v. Payne, 964 7 F.3d 652, 657 (7th Cir. 2020); United United States v. Coleman, — 8 — 961 F.3d 1024, 1030 (8th Cir. 2020); States v. Trujillo, 960 F.3d 9 1196, 1207 (10th Cir. 2020); see also United States v. Hill, 2020 10 WL 7258551 , at *2 n.3 (3d Cir. Dec. 10, 2020) (unpublished 11 disposition); United States v. Watson, 820 Fed. App’x 397, 400 12 (6th Cir. 2020) (unpublished disposition). But see United States 13 v. Gary, 954 F.3d 194, 206 (4th Cir. 2020). This court agrees with 14 the well-reasoned opinions of these courts and concludes that a 15 Rehaif error does not fall within the limited class of errors the 16 Supreme Court has found to be structural.5 17 Finally, Ohm argues that Rehaif requires the government to 18 prove not only that he knew that he was a convicted felon but also 19 that he knew he was barred from possessing firearms. 20 Notwithstanding the fact that Ohm admitted to the court that he — 21 — 22 5 While there is some case law holding that defects in the indictment are structural error, those cases apply only where the — 23 — claim is timely raised. See, e.g., United States v. Du Bo, 186 F.3d 1177 , 1179 & 1180 n.3 (9th Cir. 1999) (“We hold that, if 24 properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is 25 not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment. . . . 26 Untimely challenges to the sufficiency of an indictment are reviewed under a more liberal standard.”). Ohm argues that he 27 raised his argument at the earliest possible opportunity and so the timeliness limitation does not apply. The court does not agree. 28 Ohm could have challenged the indictment well before now. The claim is not timely raised. 1|| knew he was barred from possessing a firearm, Ohm’s legal argument 2|| is also without merit. United States v. Singh, 979 F.3d 697, 727 (9th Cir. 2020) (“[The defendant] contends that Rehaif requires 4|| the Government to prove he knew not only his status, but also that he knew his status prohibited him from owning a firearm. But this interpretation is not supported by Rehaif ... .). 7 Accordingly, because the claims raised in Ohm’s § 2255 motion 8|| are waived, procedurally defaulted and/or without merit, IT IS 9|| THEREFORE ORDERED that the motion to vacate, set aside or correct sentence (ECF No. 28) is hereby DENIED. 11 IT IS FURTHER ORDERED that Ohm is DENIED a certificate of 12|| appealability, as jurists of reason would not find the court’s 13]| denial of the motion to be debatable or wrong. 14 The Clerk of Court shall enter final judgment accordingly. 15 IT IS SO ORDERED. 16 DATED: This 29th day of March, 2021. 17 □ © 18 Lbrrnief” S ft itKAL > 19 UNITED STATES DISTRICT JUDGE — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —