SCOTUS: Rehaif Error Doesn’t Automatically Require Reversal of Conviction, Plain-Error Test Must Be Satisfied for Re-lief
by Dale Chappell
The Supreme Court of the United States (“SCOTUS”) held that for felon-in-possession cases, a Rehaif error does not establish a basis for plain-error relief unless the defendant can show that he would have presented evidence at trial that he was unaware of his felon status at the time of the firearm possession.
In Rehaif v. United States, 139 S. Ct. 2191 (2019), SCOTUS held that the government must not only prove that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm, for a conviction under 18 U.S.C. § 922(g). In this case, the Court granted two cases for appeal, each in a different procedural posture, but both with the same question: Whether a Rehaif error affected their “substantial rights” to amount to plain error on appeal. United States v. Greer, 798 Fed. Appx. 483 (11th Cir. Fla., Jan. 8, 2020); United States v. Gary, 954 F.3d 194 (4th Cir. S.C., Mar. 25, 2020).
In the first case, Gregory Greer didn’t request nor did the federal district court in Florida give a jury instruction that he had to know he was a felon at the time of the alleged firearm possession. The jury found him guilty of being a felon in possession of a firearm. After Rehaif was decided, Greer appealed, arguing for a new trial based on the district court’s failure to give the required mens rea jury instruction. The U.S. Court of Appeals for the Eleventh Circuit rejected his argument, holding that an unpreserved Rehaif error for appeal fell under the plain error standard and he did not meet that high bar.
In the second case, Michael Gary pleaded guilty to the same offense in a federal district court in South Carolina. Gary’s guilty plea, however, was vacated by the U.S. Court of Appeals for the Fourth Circuit, which held that the district court’s failure to advise him of the mens rea requirement in Rehaif satisfied plain error review because such an error is structural and per se affects a defendant’s substantial rights.
SCOTUS stated that the question it must answer “is whether Greer and Gary are entitled to plain-error relief for their Rehaif claims.” It ruled “that they are not.”
Federal Rule of Criminal Procedure 51(b) provides that a defendant can preserve an error “by informing the court” of the alleged error when the relevant “court ruling or order is made or sought.” Where the defendant has “an opportunity to object” but fails to do so, the claim is forfeited. Id. In the event the defendant subsequently raises the claim of error on appeal, the plain-error standard of Rule 51(b) applies. See Puckett v. United States, 556 U.S. 129 (2009).
In both cases under review, the defendants forfeited their claim of error regarding mens rea because they didn’t properly preserve them under Rule 51(b), the SCOTUS stated.
However, under Rule 52(b), a “plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” But “Rule 52(b) is permissive, not mandatory.” United States v. Olano, 507 U.S. 725 (1993).
For a defendant to be eligible for plain-error relief, he must satisfy three threshold requirements. See Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). The defendant must establish: (1) there is an error, (2) the error must be plain, and (3) the error must affect “substantial rights,” meaning there’s a “reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Id. If the defendant satisfies those threshold requirements, “an appellate court may grant relief if it concludes that the error had a serious effect on ‘the fairness, integrity or public reputation of judicial proceedings,’” according to SCOTUS. Id.; see also Olano.
The defendant bears the burden of proof for all four elements of the plain-error test. United States v. Dominguez Benitez, 542 U.S. 74 (2004). SCOTUS has cautioned that satisfying the test “is difficult.” Puckett.
Turning to the two cases currently before SCOTUS, it stated that both defendants satisfied the first two prongs of the plain-error test. So the focus was on the third prong—whether the mens rea errors affected their substantial rights.
In order to meet the “substantial rights” prong of the plain-error analysis, SCOTUS said that Greer had to show that, “if the district court correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a reasonable probability that he would have been acquitted.” For Gary, SCOTUS said he had to show that, “if the district court had correctly advised him of the mens rea element of the offense, there is a reasonable probability that he would not have pled guilty.”
SCOTUS recognized, and the Government conceded, that there are cases where a defendant may not be aware of his felon status, but unless the error is preserved, it said he faces an “uphill climb” in trying to satisfy the substantial rights prong.
SCOTUS explained: “The reason is simple: If a person is a felon, he ordinarily knows he is a felon. Felony status is simply not the kind of thing that one forgets. That simple truth is not lost upon juries. Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon. A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.”
Turning to the present cases, SCOTUS concluded that Greer and Gary failed to satisfy their burden of establishing that the mens rea errors affected their substantial rights, reasoning that both had been convicted of multiple felonies prior to the conviction in question. Those prior convictions “are substantial evidence that they knew they were felons,” SCOTUS stated, adding that neither can establish that but for the Rehaif error “there is a reasonable probability” that the result would have been different.
SCOTUS ended by instructing: “In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes 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 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.”
Neither Greer nor Gary made any such argument on appeal. Thus, SCOTUS held that they failed to satisfy the plain-error test.
Accordingly, SCOTUS affirmed the judgment of the Eleventh Circuit and reversed the judgment of the Fourth Circuit. See: Greer v. United States, 141 S. Ct. 2090 (2021).
Writer’s note: I want to shed some light on why the plain-error standard applied to the appeal of Gary’s challenge to his guilty plea. Typically, a motion to withdraw a guilty plea is filed in district court, which leads to appeal if denied. However, when no motion to withdraw is filed and the challenge is first made on appeal, then the harsh plain-error standard applies. Since Rehaif was decided after Gary had pleaded and was sentenced, his only option was to challenge his guilty plea on appeal for the first time.
I also want to point out that some courts have granted relief under 28 U.S.C. § 2255, holding that Rehaif rendered the movant actually innocent, which overcame the procedural default for not raising the Rehaif error on appeal. Williams v. United States, 2021 U.S. Dist. LEXIS 206016 (W.D. Wash. Oct. 25, 2021). This is important because it seems that those who did not raise a Rehaif claim on direct appeal can still get § 2255 relief from their conviction.
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Related legal cases
Greer v. United States
|Cite||141 S. Ct. 2090 (2021)|
Rosales-Mireles v. United States
|Cite||138 S. Ct. 1897 (2018)|
Puckett v. U.S.
|Cite||556 U.S. 129 (U.S. Supreme Court 2009)|
556 U.S.129; 129 S.Ct. 1423; 173 L.Ed.2d 266; 2009 U.S. LEXIS 2330
JAMES BENJAMIN PUCKETT, PETITIONER v. UNITED STATES
January 14, 2009, Argued
March 25, 2009, Decided
NOTICE: The LEXIS pagination of this document is subject to change pending release of the final published version.
PRIOR HISTORY: [*1]
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
DISPOSITION: 505 F.3d 377, affirmed.
In exchange for petitioner Puckett's guilty plea, the Government agreed to request (1) a three-level reduction in his offense level under the Federal Sentencing Guidelines on the ground that he had accepted responsibility for his crimes; and (2) a sentence at the low end of the applicable Guidelines range. The District Court accepted the plea, but before Puckett was sentenced he assisted in another crime. As a result, the Government opposed any reduction in Puckett's offense level, and the District Court denied the three-level reduction. On appeal, Puckett raised for the first time the argument that by backing away from its reduction request, the Government had broken the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below; applied Federal Rule of Criminal Procedure Rule 52(b)'s plain-error standard for unpreserved claims of error; and held that, although the error had occurred and was obvious, Puckett had not satisfied the third prong of plain-error analysis in that he failed to demonstrate that his ultimate sentence was affected, [*2] especially since the District Judge had found that acceptance-of-responsibility reductions for defendants who continued to engage in criminal activity were so rare as "to be unknown."
Held: Rule 52(b)'s plain-error test applies to a forfeited claim, like Puckett's, that the Government failed to meet its obligations under a plea agreement, and applies in the usual fashion. Pp. 4-14.
(a) In federal criminal cases, Rule 51(b) instructs parties how to preserve claims of error: "by informing the court -- when [a] ruling . . . Is made or sought -- of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection." A party's failure to preserve a claim ordinarily prevents him from raising it on appeal, but Rule 52(b) recognizes a limited exception for plain errors. "Plain-error review" involves four prongs: (1) there must be an error or defect that the appellant has not affirmatively waived, United States v. Olano, 507 U.S. 725, 732-733; (2) it must be clear or obvious, see id., at 734; (3) it must have affected the appellant's substantial rights, i.e., "affected the outcome of the district court proceedings," ibid.; and (4) [*3] if the three other prongs are satisfied, the court of appeals has the discretion to remedy the error if it "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,'" id., at 736. The question here is not whether plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but what conceivable reason exists for disregarding its evident application. The breach undoubtedly violates the defendant's rights, but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others. Pp. 4-6.
(b) Neither Puckett's doctrinal arguments nor the practical considerations that he raises counsel against applying plain-error review in the present context. The Government's breach of the plea agreement does not retroactively cause the defendant's guilty plea to have been unknowing or involuntary. This Court's decision in Santobello v. New York, 404 U.S. 257, does not govern, since the question whether an error can be found harmless is different from the question [*4] whether it can be subjected to plain-error review. Puckett is wrong in contending that no purpose is served by applying plain-error review: There is much to be gained by inducing the objection to be made at the trial court level, where (among other things) the error can often be remedied. And not all plea breaches will satisfy the doctrine's four prongs. Pp. 7-14.
505 F.3d 377, affirmed.
JUDGES: SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS, J., joined.
JUSTICE SCALIA delivered the opinion of the Court.
The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.
In July 2002, James Puckett was indicted by a grand jury in the Northern District of Texas on one count of armed bank robbery, 18 U.S.C. § 2113(a), (d), and one count of using a firearm during and in relation to a crime of violence, § 924(c)(1). He negotiated a plea agreement with the Government, which was [*5] filed with the District Court on September 3, 2003. As part of that deal, Puckett agreed to plead guilty to both counts, waive his trial rights, and cooperate with the Government by being truthful regarding his participation in criminal activities. App. 51a-53a. In exchange, the Government agreed to the following two terms:
"8. The government agrees that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level.
"9. The government also agrees to request that Puckett's sentence be placed at the lowest end of the guideline level deemed applicable by the Court." Id., at 54a.
To satisfy the first of these obligations, the Government filed a motion in the District Court pursuant to § 3E1.1 of the United States Sentencing Commission's Guidelines Manual (Nov. 2003) (USSG). That provision directs sentencing courts to decrease a defendant's offense level under the Guidelines by two levels if he "clearly demonstrates acceptance of responsibility for his offense," and by a third level "upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely [*6] notifying authorities of his intention to enter a plea of guilty." Two weeks later, the District Court held a plea colloquy, see Fed. Rule Crim. Proc. 11(b), and accepted Puckett's plea.
Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years. In the interim, Puckett assisted another man in a scheme to defraud the Postal Service, and confessed that assistance (under questioning) to a probation officer. The officer prepared an addendum to Puckett's presentence report recommending that he receive no § 3E1.1 reduction for acceptance of responsibility, on the theory that true acceptance of responsibility requires termination of criminal conduct. See USSG § 3E1.1, comment., n. 1(b).
When sentencing finally did take place on May 4, 2006, Puckett's counsel objected to the addendum, pointing out that the Government had filed a motion requesting that the full three-level reduction in offense level be granted. The District Judge turned to the prosecutor, who responded that the motion was filed "a long time ago," App. 79a, before Puckett had engaged in the additional criminal behavior. She made clear that the Government opposed any reduction [*7] in Puckett's offense level for acceptance of responsibility. The probation officer then added his view that under the Guidelines, a reduction would be improper.
After hearing these submissions, the District Judge concluded that even assuming he had the discretion to grant the reduction, he would not do so. "[I]t's so rare [as] to be unknown around here where one has committed a crime subsequent to the crime for which they appear before the court and for them even then to get the three points." Id., at 80a-81a. He agreed, however, to follow the recommendation that the Government made, pursuant to its commitment in the plea agreement, that Puckett be sentenced at the low end of the applicable Guidelines range, which turned out to be 262 months in prison for the armed bank robbery and a mandatory minimum consecutive term of 84 months for the firearm crime. Had the District Court granted the three-level reduction for acceptance of responsibility, the bottom of the Guidelines range would have been 188 months for the robbery; the firearm sentence would not have been affected.
Importantly, at no time during the exchange did Puckett's counsel object that the Government was violating its obligations [*8] under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett's plea on grounds that the Government had broken its sentencing promises.
On appeal to the United States Court of Appeals for the Fifth Circuit, Puckett did argue, inter alia, that the Government violated the plea agreement at sentencing. The Government conceded that by objecting to the reduction for acceptance of responsibility, it had violated the obligation set forth in paragraph 8 of the agreement, but maintained that Puckett had forfeited this claim by failing to raise it in the District Court. The Court of Appeals agreed, and applied the plain-error standard that Rule 52(b) makes applicable to unpreserved claims of error. 505 F.3d 377, 384 (2007). It held that although error had occurred and was obvious, Puckett had not satisfied the third prong of the plain-error analysis by demonstrating that the error affected his substantial rights, i.e., caused him prejudice. Id., at 386. Especially in light of the District Judge's statement that granting a reduction when the defendant had continued to engage in criminal [*9] conduct was "so rare [as] to be unknown," Puckett could not show that the Government's breach had affected his ultimate sentence. The Court of Appeals accordingly affirmed the conviction and sentence. Id., at 388.
We granted certiorari, 554 U.S. ___ (2008), to consider a question that has divided the Federal Courts of Appeals: whether Rule 52(b)'s plain-error test applies to a forfeited claim, like Puckett's, that the Government failed to meet its obligations under a plea agreement. See In re Sealed Case, 356 F.3d 313, 315-318 (CADC 2004) (discussing conflict among the Circuits). Concluding that Rule 52(b) does apply and in the usual fashion, we now affirm.
If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited. "No procedural principle is more familiar to this Court than that a . . . Right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444 (1944).
If [*10] an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; "anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal." United States v. Padilla, 415 F.3d 211, 224 (CA1 2005) (en banc) (Boudin, C. J., concurring).
This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from "'sandbagging'" the court -- remaining silent about his objection and belatedly raising the error only if the case does not conclude [*11] in his favor. Cf. Wainwright v. Sykes, 433 U.S. 72, 89 (1977); see also United States v. Vonn, 535 U.S. 55, 72 (2002).
In federal criminal cases, Rule 51(b) tells parties how to preserve claims of error: "by informing the court -- when the court ruling or order is made or sought -- of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection." Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of trial error. See United States v. Young, 470 U.S. 1, 15, and n. 12 (1985). Rule 52(b), however, recognizes a limited exception to that preclusion. The Rule provides, in full: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."
We explained in United States v. Olano, 507 U.S. 725 (1993), that Rule 52(b) review -- so-called "plain-error review" -- involves four steps, or prongs. First, there must be an error or defect -- some sort of "[d]eviation from a legal rule" -- that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Id., at 732-733. [*12] Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. See id., at 734. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it "affected the outcome of the district court proceedings." Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error -- discretion which ought to be exercised only if the error "'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id., at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Meeting all four prongs is difficult, "as it should be." United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 (2004).
We have repeatedly cautioned that "[a]ny unwarranted extension" of the authority granted by Rule 52(b) would disturb the careful balance it strikes between judicial efficiency and the redress of injustice, see Young, supra, at 15; and that the creation of an unjustified exception to the Rule would be "[e]ven less appropriate," Johnson v. United States, 520 U.S. 461, 466 (1997). The real question in this case is not whether [*13] plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but rather what conceivable reason exists for disregarding its evident application. Such a breach is undoubtedly a violation of the defendant's rights, see Santobello v. New York, 404 U.S. 257, 262 (1971), but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others.
Puckett puts forward several possible reasons why plain-error review should not apply in the present context. We understand him to be making effectively four distinct arguments: two doctrinal, two practical. We consider each set in turn.
Puckett's primary precedent-based argument proceeds as follows: When the Government breaks a promise that was made to a defendant in the course of securing a guilty plea, the knowing and voluntary character of that plea retroactively vanishes, because (as it turns out) the defendant was not aware of its true consequences. Since guilty pleas must be knowing and voluntary to be valid, McCarthy v. United States, 394 U.S. 459, 466 (1969), [*14] the guilty plea is thus void, along with the defendant's correspo