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Fourth Circuit: Standalone Rehaif Error Requires Automatic Vacatur of Guilty Plea

The U.S. Court of Appeals for the Fourth Circuit held that the district court’s failure to give a defendant notice that he belonged to a class of persons prohibited from possessing a firearm during his plea colloquy constitutes a structural error that requires his guilty plea to be vacated. It is the first Court of Appeals to address the question of whether this error is a structural error—denial of due process—that mandates the vacatur of the guilty plea and conviction.

The Court’s ruling came in an appeal brought by Michael Andrew Gary. He was arrested in South Carolina on January 17, 2017, following a traffic stop for driving on a suspended license. An inventory of the vehicle uncovered a loaded firearm and nine grams of marijuana. Gary admitted to possessing both items and was charged under state law with possession of a firearm by a convicted felon.

Gary again ran afoul of the law in June 16, 2017, after two officers patrolling a motel parking lot smelled marijuana. As they approached, Gary had a joint in his lap. A consensual search uncovered large amounts of cash on Gary and his companion, a digital scale, a stolen firearm, ammunition, and “a large amount of marijuana.” Gary was again charged under state law with possession of a firearm by a convicted felon.

A federal grand jury indicted Gary under 18 U.S.C. § 922(g)(1), and he later pleaded guilty without a plea agreement to two counts of possession of a firearm and ammunition after having been convicted of a felony. During the plea colloquy, the federal district court informed Gary of the elements it understood would have to be proven at trial: (1) that Gary had “been convicted of a crime punishable by imprisonment for a term exceeding one year;” (2) that he “possessed a firearm;” (3) that the firearm “travelled in interstate or foreign commerce;” and (4) that he did so knowingly; that is that [he] knew the item was a firearms and [his] possession” was voluntary and intentional. After accepting the guilty pleas, the court sentenced Gary to 84 months on each count, to run concurrently.

On appeal, Gary argued that Rehaif v. United States, 139 S. Ct. 2191 (2019), was relevant to his case. In Rehaif, the Supreme Court held the Government must prove not only that a defendant charged pursuant to § 922(g) knew he possessed a firearm but also knew he belonged to a class of persons barred from possessing a firearm. In an en banc ruling, the Fourth Circuit considered the impact of Rehaif on a defendant’s guilty plea, concluding it requires the plea to be vacated. United States v. Lockhart, 947 F.3d 187 (4th Cir. 2020). However, Lockhart addressed two errors, i.e., failure to advise defendant of his sentencing exposure and the Rehaif error—thus leaving open the question of whether a Rehaif error alone requires vacating a guilty plea.

Since Gary did not try to withdraw his plea in the district court, the Fourth Circuit reviewed under the plain error standard in which the defendant must show: (1) an error occurred, (2) that was plain, and (3) affected defendant’s substantial rights. United States v. Olano, 507 U.S. 725 (1993). To be “plain,” an error must be “clear or obvious at the time of appellate consideration.” United States v. Ramirez-Castillo, 748 F.3d 205 (4th Cir. 2014). An error is clear or obvious “if the settled law of the Supreme Court or this circuit establishes that an error has occurred,” the Fourth Circuit explained in Ramirez-Castillo.

The Rehaif decision, which was issued while Gary’s case was on appeal, established it is “plain error to accept a guilty plea based on a pre-Rehaif understanding of the elements of a Section 922(g)(1) offense.” The parties agreed that the first two prongs of Olano plain error review were satisfied as a result of the district court’s failure to provide notice of the Rehaif element of the § 922(g) offense to Gary, and the Court concurred with their assessment.

The Court then turned to the third prong of the plain error standard: whether the error affected Gary’s substantial rights. The Government argued the error didn’t because Gary knew he had been convicted of a crime punishable for a term exceeding one year, for which he served 691 days on a felony burglary conviction. As such, he couldn’t show a reasonable probability that he wouldn’t have pleaded guilty but for the error, the Government asserted.

The Court rejected the Government’s position. Ordinarily, the defendant must indeed show that but for the error he would not have pleaded guilty; however, the Court noted that the Supreme Court has instructed that a constitutionally invalid guilty plea cannot stand even when there’s “overwhelming evidence that the defendant would have pleaded guilty regardless.” United States v. Dominguez Benitez, 542 U.S. 74 (2004).

The Court observed that the Supreme Court has long recognized “a special category of forfeited errors that can be corrected regardless of their effect on the outcome” and that “not in every case” is a defendant required to “make a specific showing of prejudice” to meet the affecting substantial rights prong. Olano. The Fourth Circuit recognizes this special category as “structural errors.” United States v. David, 83 F.3d 638 (4th Cir. 1996).

The Court found the error at issue is structural because it “violated Gary’s right to make a fundamental choice regarding his own defense in violation of his Sixth Amendment autonomy interest.” Thus, he had the right to make an informed choice on whether to plead guilty or to exercise his right to go to trial. The misinformation on the elements deprived Gary of his “right to determine the best way to protect his liberty.”

The Court also found the deprivation of the autonomy interest under the Fifth Amendment due process clause has consequences that “are necessarily unquantifiable and indeterminate,” rendering the impact of the district court’s error “simply too difficult to measure.” Thus, the Court ruled the “district court’s erroneous acceptance of a constitutionally invalid guilty plea ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” Olano.

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United States v. Gary



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