Sunday, May 22, 2022

US v. Davis, No. 10066 (5-13-22)(Lucero & concurrences by VanDyke and Ikuta). The 9th rejects a Rehaif challenge to being a felon in possession. The review is for plain error, and the 9th finds the defendant could not show prejudice and there was knowledge of his felony status. 

The sentence was vacated and remanded. The 9th accepts the gov’t’s concession that Bautista applies. Bautista held a state drug statute was categorically over broad as a prior. The statute was for AZ but it applies for Nevada.

The concurrence  join the majority because of the concession, but questions such a reliance. The concurrence bemoans the complexity of the categorical approach and cautions against over reliance on Bautista.


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