UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4536

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID ELIJAH SMITH, a/k/a Miami Dave,

Defendant - Appellant.

On Remand from the Supreme Court of the United States. (S. Ct. No. 19-6496)

Submitted: September 16, 2021 Decided: September 29, 2021

Before GREGORY, Chief Judge, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David Elijah Smith, Appellant Pro Se. Kristine L. Fritz, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

In 2019, this court affirmed David Elijah Smith’s convictions for transfer of a

firearm to a prohibited person, in violation of

(d), and possession of a

firearm by a convicted felon, in violation of

(g)(1). United States v. Smith,

, 198-99 (4th Cir. 2019). Weeks later, the Supreme Court issued its

decision in Rehaif v. United States,

(2019), holding that, to convict a

defendant of a § 922(g) offense, the Government must prove that the defendant knew of

his prohibited status. Id. at 2195-97, 2200. As a result, Smith petitioned for a writ of

certiorari and, on the Government’s recommendation, the Supreme Court granted the

petition, vacated this court’s opinion, and remanded for further consideration in light of

Rehaif. The parties have now filed supplemental briefs addressing Rehaif’s impact on

Smith’s convictions. Because we conclude that the Rehaif error did not affect Smith’s

substantial rights, we affirm.

Smith contends that, at the time of the underlying offense conduct, he was using

alcohol, drugs, and prescription medications in such a quantity that he could not remember

that he was a felon. Because Smith did not make this argument in the district court, we

review only for plain error. Greer v. United States,

(2021). For a

defendant to prevail under this standard, we must find that “(1) an error was made; (2) the

error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v. Comer,

(4th Cir. 2021) (internal quotation marks omitted).

2 “In felon-in-possession cases after Rehaif, the Government must prove not only that

the defendant knew he possessed a firearm, but also that he knew he was a felon when he

possessed the firearm.” Greer,

. So, for a defendant to establish that a

plain Rehaif error affected his substantial rights, the defendant must “make[] a sufficient

argument or representation on appeal that he would have presented evidence at trial that he

did not in fact know he was a felon.”

. “When a defendant advances such an

argument or representation on appeal, the [appellate] court must determine whether the

defendant has carried the burden of showing a ‘reasonable probability’ that the outcome of

the district court proceeding would have been different.”

Owing to convictions for numerous felonies, Smith, now age 67, has spent a

substantial portion of his adult life incarcerated. Indeed, just a few years before committing

the instant offenses, Smith finished serving roughly 18 years in prison for drug and firearm

convictions. Thus, given Smith’s decades-long criminal history, we discern no reasonable

probability that a jury would have credited his conclusory claim that alcohol, drugs, and

medication so clouded his memory that he forgot he was a felon.

Accordingly, we affirm Smith’s criminal judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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