`
`______________________________________
`
`No. ________________________
`______________________________________
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`______________________________________
`JESUS EDER MORENO ORNELAS, PETITIONER,
`vs.
`UNITED STATES, RESPONDENT.
`______________________________________
`MOTION FOR LEAVE TO PROCEED
`IN FORMA PAUPERIS
`______________________________________
`
`Petitioner, through counsel, asks leave to file the attached Petition for
`Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
`without prepayment of costs and to proceed in forma pauperis. Counsel was
`appointed in the court of appeals under the Criminal Justice Act, 18 U.S.C. §
`3006A(b). This motion is brought pursuant to Rule 39.1 of the Rules of the
`Supreme Court of the United States.
`
`Respectfully submitted,
`
`December 29 , 2020 s/ Carlton F. Gunn
`CARLTON F. GUNN
`Attorney at Law
`
`

`

`______________________________________
`
`No. ________________________
`______________________________________
`
`IN THE
`SUPREME COURT OF THE UNITED STATES
`_____________________________________
`
`JESUS EDER MORENO ORNELAS, PETITIONER,
`vs.
`UNITED STATES, RESPONDENT.
`__________________________
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`___________________________
`
`PETITION FOR WRIT OF CERTIORARI
`
`______________________________________
`
`CARLTON F. GUNN
`Attorney at Law
`65 North Raymond Ave., Suite 320
`Pasadena, California 91103
`
`Attorney for the Petitioner
`
`

`

`QUESTIONS PRESENTED
`
`The government failed to overcome the presumption of innocence when
`A.
`the jury could not reach a verdict on an attempted murder count. Did it violate
`the Due Process Clause and the Sixth Amendment right to trial by jury for the
`district court to, despite the government’s failure to overcome the presumption
`of innocence at trial, apply the attempted murder sentencing guideline through
`a cross reference from the guideline for convictions on two firearms counts?
`
`Petitioner was convicted of being a felon in possession of a firearm and
`B.
`being an illegal alien in possession of a firearm in violation of 18 U.S.C. §
`922(g), but the indictment did not allege, the jury instructions did not require a
`finding of, and the government did not attempt to prove the knowledge of
`status required by Rehaif v. United States, 139 S. Ct. 2191 (2019).
`1.
`Does failure to make a specific Rehaif argument in a general
`motion for judgment of acquittal limit review of a sufficiency of
`evidence claim to review for plain error?
`2.
`To the extent plain error review does apply, is a reviewing court
`permitted to look to evidence outside the trial record in determining
`whether there was an effect on substantial rights and/or an effect on the
`fairness, integrity or public reputation of judicial proceedings?
`3.
`Is a stipulation to the fact of status, as there was in the present
`case and there is in most 18 U.S.C. § 922(g) cases, sufficient evidence to
`establish the knowledge of status that Rehaif requires?
`
`i
`
`

`

`TABLE OF CONTENTS
`
`PAGE
`
`IV.
`
`V.
`
`OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`I.
`JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
`II.
`III. CONSTITUTIONAL AND STATUTORY PROVISIONS
`INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`A.
`JURISDICTION IN THE COURTS BELOW.. . . . . . . . . . . . . . . . 2
`B.
`FACTS MATERIAL TO CONSIDERATION OF THE
`QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`1.
`Arrest, Indictment, and Trial.. . . . . . . . . . . . . . . . . . . . . . . 5
`2.
`Sentencing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
`3.
`This Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
`REASONS FOR GRANTING THE WRIT.. . . . . . . . . . . . . . . . . . . . . . 11
`A.
`THE PETITION SHOULD BE GRANTED TO RESOLVE THE
`IMPORTANT QUESTION OF WHETHER A SENTENCE MAY
`BE ENHANCED FOR AN OFFENSE TRIED TO BUT NOT
`FOUND BY THE JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`1. Whether a Sentence May Be Enhanced for an Offense Tried
`to But Not Found by the Jury Is an Important Question
`About Which There Is Uncertainty and on Which this Court
`Should Clarify the Law.. . . . . . . . . . . . . . . . . . . . . . . . . . 12
`There Is a Split of Authority Created by State Court
`Decisions Regarding Acquitted Conduct Which Extends to
`Conduct on Which the Jury Did Not Reach a Verdict.. . . . 17
`This Case Is an Excellent Vehicle for Deciding the
`Question Presented Because the Sentencing Guidelines and
`the District Court in this Case Directly Relied on the
`Sentencing Guideline for the Charged Offense on Which
`the Jury Failed to Reach a Verdict.. . . . . . . . . . . . . . . . . . 20
`
`2.
`
`3.
`
`ii
`
`

`

`TABLE OF CONTENTS (cont’d)
`
`PAGE
`
`B.
`
`THE PETITION SHOULD BE GRANTED TO RESOLVE
`SPLITS IN THE LOWER COURTS ON MULTIPLE
`IMPORTANT QUESTIONS REGARDING CONVICTIONS
`INFECTED BY ERROR UNDER REHAIF.. . . . . . . . . . . . . . . . . 21
`1.
`The Question of Whether Failure to Specifically Make a
`Rehaif Argument in a General Motion for Judgment of
`Acquittal Limits Review of a Sufficiency of Evidence
`Claim to Review for Plain Error Is an Important Question
`on Which the Circuits Are Split.. . . . . . . . . . . . . . . . . . . . 21
`The Question of Whether a Court Is Permitted to Look
`Outside the Trial Record to the Extent the Plain Error
`Standard Does Apply Is an Important Question on Which
`the Circuits Are Split.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
`The Question of Whether a Stipulation to the Fact of Status
`Is Sufficient Evidence to Establish the Knowledge of Status
`Which Rehaif Requires Is an Important Question on Which
`the Circuits Are Split.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`This Case Is an Excellent Vehicle for Addressing the
`Questions Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
`APPENDIX 1 (Court of Appeals Opinion). . . . . . . . . . . . . . . . . . . . . . . . A001
`APPENDIX 2 (Order Denying Rehearing).. . . . . . . . . . . . . . . . . . . . . . . . A006
`APPENDIX 3 (partial transcripts of sentencing hearing and resentencing
`hearing).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A007
`APPENDIX 4 (transcripts of motion for judgment of acquittal and rulings on
`same). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A015
`APPENDIX 5 (stipulation to felon and illegal reentry status). . . . . . . . . . . A027
`APPENDIX 6 (Appellant’s Opening Brief [portion relevant to questions
`presented]). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A033
`
`2.
`
`3.
`
`4.
`
`iii
`
`

`

`TABLE OF CONTENTS (cont’d)
`
`PAGE
`
`APPENDIX 7 (Brief of Appellee [portion relevant to questions
`presented])).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A063
`APPENDIX 8 (Appellant’s Reply Brief [portion relevant to questions
`presented]). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A097
`APPENDIX 9 (government supplemental authority letter). . . . . . . . . . . . . A103
`
`iv
`
`

`

`TABLE OF AUTHORITIES
`CASES
`
`PAGE
`
`Alleyne v. United States,
`570 U.S. 99 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
`Bollenbach v. United States,
`326 U.S. 607 (1946).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`Coffin v. United States,
`156 U.S. 432 (1895).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19
`Dean v. United States,
`556 U.S. 568 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
`Franchise Tax Bd. of Cal. v. Hyatt,
`139 S. Ct. 1485 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
`Hohn v. United States,
`524 U.S. 236 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
`In re Winship,
`397 U.S. 358 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`Jones v. United States,
`574 U.S. 948 (2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 19
`Nelson v. Colorado,
`137 S. Ct. 1249 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14, 15, 17
`People v. Beck,
`939 N.W.2d 213 (Mich. 2019),
`cert. denied, 140 S. Ct. 1243 (2020).. . . . . . . . . . . . . . . . . . . . . . . . 18, 19
`Rehaif v. United States,
`139 S. Ct. 2191 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`Russello v. United States,
`464 U.S. 16 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
`State v. Cote,
`530 A.2d 775 (N.H. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19
`State v. Marley,
`364 S.E.2d 133 (N.C. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
`
`v
`
`

`

`TABLE OF AUTHORITIES (cont’d)
`CASES (cont’d)
`
`PAGE
`
`United States v. Bell,
`808 F.3d 926 (D.C. Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`United States v. Booker,
`543 U.S. 220 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
`United States v. Burden,
`964 F.3d 339 (5th Cir. 2020),
`petition for cert. pending, No. 20-5939 (filed Sept. 30, 2020),
`and No. 20-5949 (filed Sept. 30, 2020). . . . . . . . . . . . . . . . . . . . . . 28, 29
`United States v. Faust,
`456 F.3d 1342 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`United States v. Gilmore,
`968 F.3d 883 (8th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
`United States v. Gjurashaj,
`706 F.2d 395 (2d Cir. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`United States v. Johnson,
`963 F.3d 847 (9th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
`United States v. Johnson,
`979 F.3d 632 (9th Cir. 2020). . . . . . . . . . . . . . . . . . . . . 10, 22, 24, 27, 30
`United States v. Jones,
`174 F.3d 746 (7th Cir. 1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
`United States v. Lasley,
`832 F.3d 910 (8th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`United States v. Maez,
`960 F.3d 949 (7th Cir. 2020),
`petition for cert. pending, No. 20-6129 (filed Oct. 19, 2020),
`and No. 20-6227 (filed Oct. 28, 2020). . . . . . . . . . . . . . . . . 22, 24, 29, 31
`United States v. Mercado,
`474 F.3d 654 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`United States v. Miller,
`954 F.3d 551 (2d Cir. 2020).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 29
`
`vi
`
`

`

`TABLE OF AUTHORITIES (cont’d)
`CASES (cont’d)
`
`PAGE
`
`United States v. Nasir,
`___ F.3d ___, 2020 WL 7041357 (3d Cir. Dec. 1, 2020)
`(en banc).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
`United States v. Olano,
`507 U.S. 725 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`United States v. Ornelas,
`906 F.3d 1138 (9th Cir. 2018),
`cert. denied, 139 S. Ct. 2638 (2019).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
`United States v. Owens,
`966 F.3d 700 (8th Cir. 2020),
`petition for cert. pending, No. 20-6098 (filed Oct. 13, 2020). . . 22, 24, 29
`United States v. Reed,
`941 F.3d 1018 (11th Cir. 2019),
`petition for cert. pending, No. 19-8679 (filed June 8, 2020). . . . . . . . . 25
`United States v. Sabillon-Umana,
`772 F.3d 1328 (10th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
`United States v. Staggers, 961 F.3d 745 (5th Cir.),
`cert. denied, 208 L. Ed. 2d 103 (2020). . . . . . . . . . . . . . . . . . . . 21, 28, 29
`United States v. Vonn,
`535 U.S. 55 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`United States v. Ward,
`957 F.3d 691 (6th Cir. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 29, 31
`United States v. Watts,
`519 U.S. 148 (1997) (per curiam).. . . . . . . . . . . . . . . . . 10, 11, 13, 15, 18
`United States v. White,
`551 F.3d 381 (6th Cir. 2008) (en banc). . . . . . . . . . . . . . . . . . . . . . 12, 13
`
`vii
`
`

`

`TABLE OF AUTHORITIES (cont’d)
`STATUTES, RULES, AND GUIDELINES
`
`PAGE
`
`8 U.S.C. § 1326. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 111(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 922(g).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 9, 28, 29
`18 U.S.C. § 924(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`18 U.S.C. § 924(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8
`18 U.S.C. § 1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 1113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 1114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 2112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`28 U.S.C. § 1254(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
`28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`Rule 7(b)(1), Federal Rules of Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . . 23
`Rule 50(a)(2), Federal Rules of Civil Procedure. . . . . . . . . . . . . . . . . . . . . . . 23
`Rule 29(a), Federal Rules of Criminal Procedure.. . . . . . . . . . . . . . . . . 4, 22, 23
`Rule 52, Federal Rules of Criminal Procedure.. . . . . . . . . . . . . . . . . . . . . . . . . 4
`U.S.S.G. § 2A2.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8
`U.S.S.G. § 2A2.2(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
`U.S.S.G. § 2K2.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 20
`U.S.S.G. § 2X1.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7, 20
`
`viii
`
`

`

`TABLE OF AUTHORITIES (cont’d)
`OTHER AUTHORITIES
`
`PAGE
`
`Black’s Law Dictionary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure:
`Criminal (4th ed. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
`Fed. R. Crim. Pro. 47 advisory committee‘s note.. . . . . . . . . . . . . . . . . . . . . . 24
`Memorandum for the United States, Burden v. United States, No. 20-5939
`(U.S. Nov. 6, 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
`
`ix
`
`

`

`_____________________________________
`PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`_____________________________________
`
`Jesus Eder Moreno-Ornelas petitions for a writ of certiorari to review
`the judgment and opinion of the United States Court of Appeals for the Ninth
`Circuit in his case.
`
`I.
`OPINIONS BELOW
`
`The unpublished opinion of the United States Court of Appeals for the
`Ninth Circuit, which is also reported at 814 Fed. Appx. 313, is included in the
`appendix as Appendix 1. An order denying a petition for rehearing en banc is
`included in the appendix as Appendix 2. The transcripts of the relevant
`portions of the district court’s oral rulings at an initial sentencing and a
`resentencing are attached as Appendix 3. The transcripts of the district court’s
`ruling on a motion for judgment of acquittal are attached as Appendix 4.
`
`1
`
`

`

`II.
`JURISDICTION
`
`The judgment of the United States Court of Appeals for the Ninth
`Circuit was entered on July 31, 2020, see App. A001-05, and a timely petition
`for rehearing en banc was denied on August 28, 2020, see App. A006. The
`jurisdiction of this Court is invoked pursuant to 62 Stat. 928, 28 U.S.C. §
`1254(1).
`
`III.
`CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
`
`The Fifth Amendment to the United States Constitution provides in
`pertinent part:
`
`No person shall . . . be deprived of life, liberty, or
`property without due process of law; . . . .
`The Sixth Amendment to the United States Constitution provides in
`pertinent part:
`
`In all criminal prosecutions, the accused shall enjoy
`the right to a speedy and public trial, by an impartial jury
`. . . .
`Section 2K2.1 of the sentencing guidelines provides in pertinent part:
`§ 2K2.1
`Unlawful Receipt, Possession, or
`Transportation of Firearms or
`Ammunition; Prohibited Transactions
`Involving Firearms or Ammunition)
`
`. . .
`(c)
`
`Cross Reference
`(1)
`If the defendant used or possessed any
`
`2
`
`

`

`firearm or ammunition cited in the
`offense of conviction in connection with
`the commission or attempted
`commission of another offense, or
`possessed or transferred a firearm or
`ammunition cited in the offense of
`conviction with knowledge or intent that
`it would be used or possessed in
`connection with another offense,
`apply—
`(A)
`§ 2X1.1 (Attempt, Solicitation, or
`Conspiracy) in respect to that
`other offense, if the resulting
`offense level is greater than that
`determined above; or
`
`. . .
`Section 2X1.1 of the sentencing guidelines provides in pertinent part:
`§ 2X1.1
`Attempt, Solicitation, or Conspiracy (Not
`Covered by a Specific Offense Guideline)
`. . .
`(c)
`
`Cross Reference
`(1) When an attempt, solicitation, or
`conspiracy is expressly covered by
`another offense guideline section, apply
`that guideline section.
`. . .
`Section 2A2.1 of the sentencing guidelines provides in pertinent part:
`§ 2A2.1
`Assault With Intent To Commit Murder;
`Attempted Murder
`Base Offense Level
`(1)
`33, if the object of the offense would
`have constituted first degree murder; or
`(2)
`27, otherwise.
`
`(a)
`
`. . .
`
`18 U.S.C. § 922(g) provides, in pertinent part:
`(g)
`It shall be unlawful for any person—
`(1) who has been convicted in any court of,
`a crime punishable by imprisonment for a term
`exceeding one year;
`
`3
`
`

`

`. . .
`(5) who, being an alien—
`(A) is illegally or unlawfully in the
`United States;
`. . .
`to . . . possess in or affecting commerce, any firearm or
`ammunition; . . . .
`18 U.S.C. § 924(a)(2) provides, in pertinent part:
`(2) Whoever knowingly violates subsection (a)(6),
`(d), (g), (h), (i), (j), or (o) of section 922 shall be fined as
`provided in this title, imprisoned not more than 10 years, or
`both.
`. . .
`Rule 29(a) of the Federal Rules of Criminal Procedure provides, in
`pertinent part:
`
`Before Submission to the Jury. After the
`(a)
`government closes its evidence or after the close of all the
`evidence, the court on the defendant’s motion must enter a
`judgment of acquittal of any offense for which the evidence
`is insufficient to sustain a conviction. The court may on its
`own consider whether the evidence is insufficient to sustain
`a conviction. If the court denies a motion for a judgment of
`acquittal at the close of the government’s evidence, the
`defendant may offer evidence without having reserved the
`right to do so.
`Rule 52 of the Federal Rules of Criminal Procedure provides, in
`pertinent part:
`
`(a) Harmless Error. Any error, defect,
`irregularity, or variance that does not affect substantial
`rights must be disregarded.
`(b)
`Plain Error. A plain error that affects
`substantial rights may be considered even though it was not
`brought to the court’s attention.
`
`4
`
`

`

`IV.
`STATEMENT OF THE CASE
`
`A.
`
`JURISDICTION IN THE COURTS BELOW.
`
`The district court had jurisdiction under 18 U.S.C. § 3231. The court of
`appeals had jurisdiction under 28 U.S.C. § 1291.
`
`FACTS MATERIAL TO CONSIDERATION OF THE QUESTIONS
`B.
`PRESENTED.
`
`1.
`
`Arrest, Indictment, and Trial.
`
`Petitioner was arrested after a struggle with a United States Forest
`Service officer during which several shots were fired from the officer’s gun.
`App. A036. Petitioner was subsequently indicted for assault on a federal
`officer, in violation of 18 U.S.C. § 111(b); attempted murder of a federal
`officer, in violation of 18 U.S.C. §§ 1111, 1113, and 1114; discharge of a
`firearm during the assault and attempted murder, in violation of 18 U.S.C. §
`924(c); attempted robbery of the officer’s firearm, in violation of 18 U.S.C. §
`2112; attempted robbery of the officer’s vehicle, in violation of 18 U.S.C. §
`2112; being a felon in possession of a firearm, in violation of 18 U.S.C. §
`922(g)(1); being an illegal alien in possession of a firearm, in violation of 18
`U.S.C. § 922(g)(5)(A); and being found in the country illegally after having
`been deported, in violation of 8 U.S.C. § 1326. App. A036.
`
`5
`
`

`

`To support the felon in possession of a firearm count, the illegal alien in
`possession of a firearm counts, and the illegal reentry count, the government
`introduced a stipulation. See App. A027-32. The stipulation established the
`elements of the illegal reentry offense and also the status for the unlawful
`firearm possession counts, i.e., that Petitioner had a prior felony conviction
`and was in the country illegally. See App. A027-32. There was no other
`evidence introduced about Petitioner’s felony conviction, and just some
`tangential references to his entry and presence in the United States. App.
`A040.1
`After lengthy deliberations, several jury notes, and an “Allen charge,”
`the jury reached a verdict on most, but not all, counts. See App. A041, It
`found Petitioner guilty on the assault count, the 18 U.S.C. § 924(c) count, the
`attempted robbery counts, the felon and illegal alien in possession of firearm
`
`1 A man who had been with Petitioner testified in a material witness
`deposition that, “I came illegally through the desert,” that Petitioner and others
`were with him when he came, and that they crossed over with marijuana. App.
`A040. A sheriff’s detective who had participated in a post-arrest interrogation
`of Petitioner claimed Petitioner admitted in the interrogation that he was in the
`country illegally, but the actual transcript of the interrogation which was
`introduced contained no such admission. App. A040. Petitioner did indicate
`he had crossed the border by using a ladder to go over the fence, but he did not
`say that was because he could not be in the country legally rather than because
`his companion could not enter or because of the marijuana. App. A040.
`Petitioner indicated he had wanted to avoid the Border Patrol, but he did not
`say that was because of his illegal presence rather than his companion’s illegal
`presence. App. A040-41. He said the reason he resisted when the Forest
`Service officer tried to handcuff him was that he did not want to go to “the
`can,” but he did not say he thought he could be jailed for being in the country
`illegally rather than for his non-compliance with the officer’s orders. App.
`A041.
`
`6
`
`

`

`counts, and the illegal reentry count. App. A041. It was unable to reach a
`verdict on the attempted murder count, and the court declared a mistrial on that
`count. App. A041.
`
`2.
`
`Sentencing.
`
`Despite the failure to convict Petitioner of the attempted murder count,
`the government sought to apply the sentencing guideline for attempted murder.
`See App. A044. It sought to do this through the guideline for the felon and
`illegal alien in possession of firearm counts – § 2K2.1. See App. A043-44.
`That guideline has a “cross reference” which requires application of the
`attempt guideline in § 2X1.1 when the firearm is used in the attempted
`commission of another offense. See U.S.S.G. § 2K2.1(c)(1). The government
`argued Petitioner had committed attempted first degree murder and the court
`should use the guideline for that offense under the § 2K2.1 cross reference.
`See App. A044, A048.
`Petitioner argued it was improper to apply the attempted murder
`guideline when the jury had not convicted Petitioner of the attempted murder
`charge. App. A043. He also argued factually that there was only the assault,
`not an attempted murder. App. A044. He further argued that any attempted
`murder which had been committed was second degree rather than first degree.
`See App. A043, A047-48.
`The district court rejected the defense arguments and applied the
`attempted first degree murder guideline. At a first sentencing, the court stated:
`The Court is aware that the jury deadlocked on the
`
`7
`
`

`

`attempted murder charge. However, in my review of the
`evidence, the Court finds that there is clear and convincing
`evidence of that, his relevant conduct.
`App. A009. And the court made the same finding at a resentencing following
`remand after a first appeal:2
`I’m adopting my previous analysis that I conducted, after
`hearing from counsel, last time when I sentenced this
`defendant. I think there is clear and convincing evidence
`that this defendant was attempting to commit the crime of
`murder.
`
`App. A012
`This finding – accompanied by a finding that there was premeditation
`that made the attempted murder first degree, see App. A009, A014 –
`dramatically increased Petitioner’s sentencing guidelines offense level and
`guideline range – to 413 and 360 months to life, respectively. See App. A044-
`45. Combining this range with the mandatory consecutive sentence required
`for the 18 U.S.C. § 924(c) count, the court imposed a total sentence of 520
`months. App. A045; see also A048.
`
`2 The first appeal challenged only Petitioner’s convictions. See United
`States v. Ornelas, 906 F.3d 1138 (9th Cir. 2018), cert. denied, 139 S. Ct. 2638
`(2019). The court affirmed the assault conviction, the firearms convictions,
`and the illegal reentry conviction, but vacated the attempted robbery
`convictions and remanded, which led to the resentencing. See id.
`
`3 The attempted first degree murder guideline by itself simply increased
`the “base offense level” to 33, see U.S.S.G. § 2A2.1(a)(1), but other
`enhancements increased the offense level further, see App. A043, A045, A048.
`The base offense level for attempted second degree murder is only 27, see
`U.S.S.G. § 2A2.1(a)(2), and the base offense level for aggravated assault is 14,
`see U.S.S.G. § 2A2.2(a).
`
`8
`
`

`

`3.
`
`This Appeal.
`
`Petitioner filed this second appeal, see supra p. 8 & n.2, after the
`resentencing. He persisted in his argument that it was improper to base the
`guideline calculation on the attempted murder guideline when an attempted
`murder charge was tried to, but not found by, the jury. See App. A058-62. He
`also raised multiple challenges based on the Supreme Court’s intervening
`decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), in which the Court
`held 18 U.S.C. § 922(g) requires proof of not just the status that bars
`possession of a firearm – in this case, having been convicted of a crime
`punishable by imprisonment for a term exceeding one year, see 18 U.S.C. §
`922(g)(1), and being present in the country illegally, see 18 U.S.C. §
`922(g)(5)(A) – but also proof of knowledge of the status. See App. A050-57
`He argued that, first, there was insufficient evidence to support the convictions
`because there was insufficient evidence of knowledge of the status, see App.
`A051-55, and, second, the indictment and jury instructions were deficient
`because they failed to allege and require a finding of such knowledge, see
`App. A056-57. He conceded the indictment and instructions challenges could
`be reviewed only for plain error, but argued the sufficiency of evidence was
`reviewed de novo, because he had made a general motion for judgment of
`acquittal “on each and every count because the Government has failed to carry
`it’s [sic] burden of proving each and every element of those counts.” App.
`A016, A050-51.
`The government agreed with Petitioner’s statement of the standard of
`review, see App. A083, but argued against Petitioner on the merits. On the
`
`9
`
`

`

`due process sentencing issue, the government argued it is well established that
`courts can sentence a defendant based on conduct he was not convicted of.
`See App. A092-95. On the Rehaif issues, it argued the evidence was sufficient
`because the stipulation not only established the status but justified an inference
`of knowledge of the status, see App. A084-89.4 and the deficiencies in the
`indictment and instructions were not sufficiently prejudicial to satisfy the
`requirements of the plain error standard, see App. A089-92. The government
`subsequently added an argument – in a supplemental authority letter citing
`United States v. Johnson, 963 F.3d 847 (9th Cir. 2020)5 – that the court could
`consider evidence outside the trial record and there was uncontroverted
`evidence in the presentence report that Petitioner had been sentenced to more
`than a year in prison. See App. A103-04.
`The court of appeals rejected Petitioner’s claims in a short unpublished
`opinion. On the sentencing claim, it held the attempted murder conduct could
`be considered even though there was no conviction, based on United States v.
`Watts, 519 U.S. 148 (1997) (per curiam). See App. A004. On the Rehaif
`claims, it held Petitioner “cannot satisfy the third and fourth prongs of the
`plain error test.” App. A003.
`He stipulated to a prior felony conviction, for which he
`received a 30-month sentence, according to the revised
`presentence report. See Johnson, 963 F.3d at 854
`(concluding that uncontroverted evidence that defendant
`
`4 For the illegal alien in possession count, it also pointed to some of the
`additional evidence noted supra p. 6 n.1.
`
`5 This Johnson opinion was subsequently withdrawn and replaced by
`United States v. Johnson, 979 F.3d 632 (9th Cir. 2020), which reaches the
`same result based on different reasoning, see id. at 636.
`10
`
`

`

`was sentenced to more than a year in prison “will ordinarily
`preclude” satisfaction of the fourth prong). Moreno also
`stipulated that he was not a U.S. citizen and was in the
`country without the Attorney General’s consent. There is
`no reasonable probability that, but for the omission in the
`indictment, the jury would have reached a different verdict
`on the possession charges. For this reason, the error did not
`affect Moreno’s substantial rights, nor the fairness,
`integrity, or public reputation of the trial. (Citation
`omitted.) And for the same reason, the district court did not
`plainly err in determining the evidence was sufficient to
`support Moreno’s convictions.
`App. A003. The court applied the plain error standard even to the sufficiency
`of evidence claim because Petitioner “did not raise a Rehaif challenge when
`moving for acquittal in the district court.” App. A002. It did add in a footnote
`that it would reject the challenge even if it were preserved because “a ‘rational
`trier of fact’ could find Moreno knew of his prohibited status beyond a
`reasonable doubt,” App. A003-04 n.2, but provided no additional analysis of
`the evidence to support this.
`
`IV.
`REASONS FOR GRANTING THE WRIT
`
`This petition should be granted because it presents multiple issues on
`which the lower courts are split and on which this Court should clarify the law.
`First, the petition presents the question of whether a court may directly base a
`sentence on an offense which was tried to but not found by the jury in the case.
`There is at least a tension, if not an outright conflict, between the Court’s
`summary per curiam opinion in Watts, which considered only double jeopardy
`concerns, and the Court’s more recent opinion on the scope of the presumption
`
`11
`
`

`

`of innocence in Nelson v. Colorado, 137 S. Ct. 1249 (2017). There are also
`several state court opinions which create a split in the lower courts.
`Second, this petition presents multiple questions regarding the
`application of this Court’s recent holding in Rehaif to pre-Rehaif trials. These
`questions include (a) whether a general motion of judgment of acquittal
`preserves a Rehaif sufficiency of evidence challenge so review of such a
`challenge is not limited to plain error; (b) whether a reviewing court is
`permitted to look outside the trial record to the extent the plain error standar