FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-10353 Plaintiff-Appellee, D.C. No. v. 1:17-cr-00742- SOM-1 MELVYN GEAR, Defendant-Appellant. OPINION Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding Argued and Submitted July 16, 2020 San Francisco, California Filed January 19, 2021 Before: Kenneth K. Lee and Patrick J. Bumatay, Circuit Judges, and Roslyn O. Silver, * District Judge. Per Curiam Opinion; Concurrence by Judge Silver; Partial Concurrence and Partial Dissent by Judge Bumatay * The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. 2 UNITED STATES V. GEAR SUMMARY ** Criminal Law The panel affirmed a conviction for violating 18 U.S.C. § 922(g)(5)(B) by possessing a firearm while being an alien who had been admitted to the United States under a nonimmigrant visa. The panel held that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the government must—in order to gain a conviction under § 922(g)(5)(B)—prove a defendant knew he was admitted into the country under a nonimmigrant visa. The panel wrote that establishing that the defendant knew he had an H-1B visa is not enough. Reviewing the district court’s erroneous jury instructions—to which the defendant did not properly object—for plain error, the panel held that the error did not affect the defendant’s substantial rights because the record overwhelmingly indicates that the defendant knew it was illegal for him to possess a firearm. Concurring, Judge Silver agreed that the conviction should be affirmed but wrote separately to write that to the extent the per curiam opinion suggests the government could alternatively prove that the defendant knew his visa was statutorily classified as a “nonimmigrant visa,” she does not agree. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. GEAR 3 Concurring in part and dissenting in part, Judge Bumatay wrote that the defendant showed a reasonable probability that the jury would have reached a different outcome if the jury had been properly instructed, and that the panel should therefore return the determination of the defendant’s guilt to the jury. COUNSEL Ted Sampsell-Jones (argued), Dennis P. Riordan, and Donald M. Horgan, Riordan & Horgan, Oakland, California, for Defendant-Appellant. Marshall Silverberg (argued), Assistant United States Attorney; Marion Percell, Chief of Appeals; Kenji M. Price, United States Attorney; United States Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee. OPINION PER CURIAM: Along with felons, illegal aliens, and other specified groups, Congress proscribed nonimmigrant-visa holders from lawfully possessing a firearm. 18 U.S.C. § 922(g)(5)(B). But to be penalized for violating this law under 18 U.S.C. § 924(a)(2), Congress also required the nonimmigrant-visa holder’s knowledge of his “relevant status” as a prohibited possessor. Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). In this case, it is uncontested that Melvyn Gear owned a gun. It is also uncontested that he ...
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