facts already known to the officers, this information provided probable cause for

the warrantless searches of Collins’ vehicle pursuant to the automobile exception

to the Fourth Amendment. See United States v. Scott, 705 F.3d 410, 417 (9th Cir.

2012); see also California v. Acevedo, 500 U.S. 565, 580 (1991).

We need not address whether changes to California state law legalizing the

possession of medical marijuana for personal use affect the district court’s

conclusion regarding simple possession because the searches were supported by

probable cause for possession for sale, which was illegal. See United States v.

Pope, 686 F.3d 1078, 1083 (9th Cir. 2012) (“[W]e may affirm on any basis

3 19-10154 supported by the record.”). The district court did not err in denying Collins’

motion to suppress.

2. Collins argues his conviction for being a felon in possession of a firearm

should be reversed because the Government failed to prove the knowledge-of-

status element of § 922(g)(1) and the district court erred by not including that

element in the jury instruction. We review for plain error because Collins did not

challenge the jury instructions before the district court, and his generalized

sufficiency-of-the-evidence motion before the district court did not adequately

preserve his current knowledge-of-status argument. See United States v. Kilbride,

584 F.3d 1240, 1247 (9th Cir. 2009); United States v. Pelisamen, 641 F.3d 399,

409 n.6 (9th Cir. 2011).

Consistent with Ninth Circuit precedent at the time of Collins’ trial, the jury

instructions on the felon-in-possession charge did not include that the Government

had to prove Collins knew he had been convicted of a crime punishable by more

than one year imprisonment. After Collins’ trial, the Supreme Court issued its

opinion in Rehaif v. United States, 139 S. Ct. 2191 (2019), in which the Court

identified the three elements of a § 922(g) charge––status, possession, and

jurisdiction––and held “the Government must prove both that the defendant knew

he possessed a firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.” Id. at 2195-96, 2200.

4 19-10154 On a plain-error review, Collins’ sufficiency-of-the-evidence challenge fails.

See United States v, Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). Collins

stipulated that “[p]rior to February 25, 2016, the defendant, Jameel Collins, Sr.,

had been convicted of a crime punishable by more than one year in prison.” As

this court has previously held, “[t]hat factual stipulation was binding, and it

relieved the government of the burden to prove Defendant’s status as a felon.”

United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019) (citing Christian

Legal Soc’y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661, 677–78 (2010)).

However, “the absence of an instruction requiring the jury to find that Defendant

knew he was a felon was clear error under Rehaif.” Id. (citing Henderson v.

United States, 568 U.S. 266, 273 (2013); Griffith v. Kentucky, 479 U.S. 314, 321

n.6, 328 (1987)). In this case, “there is no probability that, but for the error, the

outcome of the proceeding would have been different.” Id. at 1189. At the time he

possessed the firearm, Collins had been convicted of seven prior felony

convictions, including one prior felon-in-possession conviction and three prior

felony convictions for which he actually served over one year in prison. See

United States v. Johnson, 963 F.3d 847, 853 (9th Cir. 2020). “[T]he prior

convictions for being a felon in possession of a firearm and being a felon in

possession of ammunition proved beyond a reasonable doubt that Defendant had

the knowledge required by Rehaif and that any error in not instructing the jury to

5 19-10154 make such a finding did not affect Defendant’s substantial rights or the fairness,

integrity, or public reputation of the trial.” Benamor, 937 F.3d at 1188.

3. Finally, Collins contends that the district court committed plain error by

not including a lesser included offense of simple possession in the jury instruction.

Although the parties agree simple marijuana possession is a lesser-included offense

of possession with intent to distribute marijuana, Collins advanced a theory at trial

consistent with simple possession but did not request an instruction on simple

possession. The district court’s failure to provide an instruction on simple

possession sua sponte was not plain error because in such circumstances, a

defendant’s “failure to request such an instruction, the omission must be

considered a matter of trial strategy and not error.” United States v. Boone, 951

F.2d 1526, 1542 (9th Cir. 1991); see Henderson, 568 U.S. at 278.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring:

I agree with the majority’s result, but I would affirm the order denying the

motion to suppress based on the district court’s reasoning.

6 19-10154