Opposition Brief — United States, Petitioner v. Michael Andrew Gary

Supreme Court briefDec 8, 2020

Ask Donna

What actually matters in this document.

Text

No. 20-444

_____________

IN THE

SUPREME COURT OF THE UNITED STATES

United States of America,

Petitioner,

Michael Andrew Gary,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

Kimberly Harvey Albro

OFFICE OF THE FEDERAL PUBLIC

DEFENDER

1901 Assembly Street, Suite 200

Columbia, SC 29201

Jeffrey L. Fisher

Counsel of Record

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

QUESTION PRESENTED

Respondent Michael Andrew Gary was charged with possessing a firearm as a

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At his guilty plea colloquy,

the district court told him that this charge required proof that he had a prior felony

conviction. But, in line with the unanimous view of the federal courts of appeals at

the time, the court did not advise Mr. Gary that the charge required proof that he

knew that his prior conviction barred him from possessing a firearm. While this case

was pending on direct appeal, this Court rejected the circuits’ unanimous

understanding of the felon-in-possession statute, holding in Rehaif v. United States,

139 S. Ct. 2191 (2019), that an element of the felon-in-possession offense is the

defendant’s “know[ledge] of his status as a person barred from possessing a firearm,”

id. at 2195. Mr. Gary then asked the Fourth Circuit to vacate his guilty plea. Although

he had not objected at his plea colloquy to the district court’s omission of the

knowledge-of-status element, Mr. Gary argued that the district court’s Rehaif error

rendered his plea invalid. The court of appeals agreed and vacated his plea.

The question presented is whether the court of appeals correctly held that the

Rehaif error in Mr. Gary’s case entitles him to relief, irrespective of whether he could

show a reasonable probability that, but for the error, he would have gone to trial.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

STATEMENT OF THE CASE....................................................................................... 1

REASONS FOR DENYING THE WRIT ....................................................................... 5

The question presented has minimal practical import ..................................... 5

A. This issue arises in only a narrow sliver of felon-in-possession

prosecutions .................................................................................................. 6

B. The Fourth Circuit’s holding imposes no significant burden on the

federal courts ................................................................................................ 9

II.

The Rehaif error here is a poor setting in which to expound upon the

plain-error doctrine ........................................................................................... 10

A. The plain-error standard should not apply here at all ............................. 11

B. Mr. Gary would satisfy the Government’s proposed standard ................. 14

III.

The Fourth Circuit’s decision is correct ........................................................... 18

A. The constitutional error at Mr. Gary’s plea colloquy affected his

substantial rights ....................................................................................... 18

B. The error seriously affected the fairness, integrity, or public

reputation of judicial proceedings.............................................................. 25

CONCLUSION............................................................................................................. 26

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ballard v. Commissioner, 544 U.S. 40 (2005) ............................................................. 11

Bousley v. United States, 523 U.S. 614 (1998) ............................................... 19, 21, 25

Boykin v. Alabama, 395 U.S. 238 (1969) .............................................................. 20, 21

Bradshaw v. Stumpf, 545 U.S. 175 (2005) .................................................................. 20

Chapman v. California, 386 U.S. 18 (1967) ................................................................ 23

Faretta v. California, 422 U.S. 806 (1975).................................................................. 22

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ....................................................... 24

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) ................................................... 11

Henderson v. Morgan, 426 U.S. 637 (1976) .......................................................... 19, 20

Henderson v. United States, 568 U.S. 266 (2013) ...................................................... 13

Johnson v. United States, 520 U.S. 461 (1997) .......................................................... 14

LeBron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995) ...................................... 11

Lee v. United States, 137 S. Ct. 1958 (2017) .............................................................. 23

Martinez v. Ct. of Appeal, 528 U.S. 152 (2000) .......................................................... 24

McCarthy v. United States, 394 U.S. 459 (1969) ....................................................... 19

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ......................................................... 21, 22

Neder v. United States, 527 U.S. 1 (1999) ...................................................... 23, 24, 26

Powell v. United States, 2020 WL 2199622 (E.D.N.C. May 6, 2020) .......................... 7

Puckett v. United States, 556 U.S. 129 (2009) ........................................................... 10

Reed v. Ross, 468 U.S. 1 (1984) ................................................................................... 13

Rehaif v. United States, 139 S. Ct. 2191 (2019) ..................................................passim

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) .......................................... 26

Rose v. Clark, 478 U.S. 570 (1986).............................................................................. 24

Salinas v. Texas, 570 U.S. 178 (2013) ......................................................................... 11

Smith v. O’Grady, 312 U.S. 329 (1941) ................................................................. 19, 25

Smith v. Phillips, 455 U.S. 209 (1982) ........................................................................ 11

Teague v. Lane, 489 U.S. 288 (1989) .......................................................................... 11

United States v. Asmer, 2020 WL 6827829 (D.S.C. Nov. 20, 2020) ............................ 6

United States v. Baker, 489 F.3d 366 (D.C. Cir. 2007) .............................................. 12

United States v. Barnett, 398 F.3d 516 (6th Cir. 2005) ............................................. 10

United States v. Baumgardner, 85 F.3d 1305 (8th Cir. 1996) ................................... 12

United States v. Belk, 346 F.3d 305 (2d Cir. 2003) .................................................... 12

United States v. Blick, 408 F.3d 162 (4th Cir. 2005) ................................................... 8

United States v. Bryant, 523 F.3d 349 (D.C. Cir. 2008) ............................................ 12

United States v. Collins, ___ F.3d ___, 2020 WL 7062467 (4th Cir. 2020) .................. 7

United States v. Colon-Pagan, 1 F.3d 80 (1st Cir. 1993) ........................................... 10

United States v. Cotton, 535 U.S. 625 (2002) ....................................................... 25, 26

United States v. David, 83 F.3d 638 (4th Cir. 1996) .............................................. 3, 24

United States v. Dominguez Benitez, 542 U.S. 74 (2004) .......................... 9, 14, 20, 21

United States v. Frady, 456 U.S. 152 (1982) ................................................................ 6

United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012) ................................ 12

United States v. Gaudin, 515 U.S. 506 (1995)............................................................ 14

United States v. Grubbs, 547 U.S. 90 (2006) .............................................................. 11

United States v. Huet, 665 F.3d 588 (3d Cir. 2012) ................................................... 12

United States v. Jackson, 120 F.3d 1226 (11th Cir. 1997)......................................... 12

United States v. Johnson, 812 Fed. Appx. 126 (4th Cir. 2020) .................................... 8

United States v. Kind, 194 F.3d 900 (8th Cir. 1999) .................................................. 12

United States v. Knoll, 116 F.3d 994 (2d Cir. 1997) ............................................ 13, 14

United States v. Kyle, 734 F.3d 956 (9th Cir. 2013) .................................................. 12

United States v. Lane, 267 F.3d 715 (7th Cir. 2001).................................................. 12

United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc)............................... 12

United States v. Marc, 806 Fed. Appx. 820 (11th Cir. 2020) ....................................... 8

United States v. Medley, 972 F.3d 399 (4th Cir.), reh’g en banc

granted, 828 Fed. Appx. 923 (2020) .................................................................... 6, 7

United States v. Miller, 105 F.3d 552 (9th Cir. 1997) ................................................ 12

United States v. Olano, 507 U.S. 725 (1993) .......................................................passim

United States v. Olender, 338 F.3d 629 (6th Cir. 2003)............................................. 12

United States v. Rose, 587 F.3d 695 (5th Cir. 2009) .................................................. 12

United States v. Smith, 940 F.2d 710 (1st Cir. 1991) ................................................ 12

United States v. Speight, 812 Fed. Appx. 160 (4th Cir. 2020) ..................................... 8

United States v. Uscanga-Mora, 562 F.3d 1289 (10th Cir. 2009) ........................ 12, 13

United States v. Wilkinson, 137 F.3d 214 (4th Cir. 1998) ......................................... 13

United States v. Wyles, 102 F.3d 1043 (10th Cir. 1996) ............................................ 10

Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) .......................................... 21, 23, 24

Constitutional Provisions

U.S. Const., amend. IV ................................................................................................ 11

U.S. Const., amend. XIV, Due Process Clause ........................................................... 19

Statutes

18 U.S.C. § 922(g) .................................................................................................passim

18 U.S.C. § 922(g)(1) ............................................................................................. i, 1, 14

18 U.S.C. § 924(a) ....................................................................................................... i, 1

U.S.S.G. § 3E1.1........................................................................................................... 24

S.C. Code Ann. § 16-23-20 ....................................................................................... 1, 17

S.C. Code Ann. § 16-23-30(C) ........................................................................................ 1

Rules and Regulations

Fed. R. App. P. 28(j) ....................................................................................................... 2

Fed. R. Crim. P. 11............................................................................................... 2, 4, 20

Fed. R. Crim. P. 52............................................................................................. 3, 24, 25

Fed. R. Crim. P. 52(a) .................................................................................................. 24

Fed. R. Crim. P. 52(b) .................................................................................................. 25

Other Authorities

Carroll, Jenny E., Pretrial Detention in the Time of Covid-19, 115 Nw.

U. L. Rev. Online 59 (2020) ................................................................................... 16

Kilgore, James William, Understanding Mass Incarceration (2015) .......................... 8

King, Nancy J. & Michael E. O’Neill, Appeal Waivers and the Future

of Sentencing Policy, 55 Duke L.J. 209 (2005) ....................................................... 7

Klein, Susan R., et al., Waiving the Criminal Justice System: An

Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73 (2015) ............. 7

Street, Lindsay, Some Say It’s Time to Review the Efficacy of Jail

Bonds, Statehouse Rep’t (Dec. 3, 2020) ................................................................ 16

STATEMENT OF THE CASE

1. In January of 2017, police officers in South Carolina conducted a traffic stop

of respondent Michael Andrew Gary and found a gun in his car. Pet. App. 3a. The

State of South Carolina subsequently charged him with the misdemeanor offense of

violating S.C. Code Ann. § 16-23-20. That provision forbids “anyone to carry about

the person any handgun” unless the person falls into a specific class of exempted

persons, including police officers and fishermen. S.C. Code Ann. § 16-23-20. 1

Five months later, after another vehicle search by local law enforcement, Mr.

Gary admitted to possessing a second gun. Pet. App. 2a-3a. This time around, state

authorities charged him with violating a different provision of South Carolina law:

S.C. Code Ann. § 16-23-30(C). That provision forbids any person from possessing “any

stolen handgun or one from which the original serial number has been removed or

obliterated.” S.C. Code Ann. § 16-23-30(C).

2. Based on the same events underlying these state charges, a federal grand

jury in the District of South Carolina indicted Mr. Gary on two counts of possessing

a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Pet. App. 3a.

As relevant here, the Government alleged that he was forbidden from possessing a

firearm because he had been convicted in 2014 of second-degree burglary. Id. 6a-7a

1 The Fourth Circuit mistakenly characterized this as a “charge[] under state

law with possession of a firearm by a convicted felon,” Pet. App. 2a, perhaps because

the Presentence Report (PSR) made the same mistake. See PSR ¶ 37; C.A. J.A. 114.

The Government repeats this error in its petition. Pet. 2, 11. Counsel for Mr. Gary

has now obtained the original state court records and confirmed that he was charged

with violating Section 16-23-20, not any felon-in-possession statute.

& n.5. Mr. Gary had spent 691 days in pretrial detention in connection with that

charge. Id. 7a n.5. After pleading guilty, he was immediately released under the terms

of an eight-year suspended sentence. Id.; PSR ¶ 30; C.A. J.A. 111-112.

Mr. Gary opted to plead guilty to the two federal charges without a plea

agreement. Pet. App. 3a. During his Rule 11 plea colloquy, the district court told Mr.

Gary—consistent with “uniform” precedent in the federal courts of appeals at the

time, Pet. 3—that, if he went to trial, the Government would have to prove the

following elements: “(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 firearm and [his] possession of that

firearm was voluntarily [sic] and intentional.” Pet. App. 3a (punctuation omitted); see

also Pet. 3. Mr. Gary acknowledged that he understood those elements and that his

conduct satisfied them. C.A. J.A. 30-32, 47.

The district court accepted Mr. Gary’s plea and sentenced him to 84 months in

prison per count, to run concurrently. Pet. App. 3a. Local prosecutors later dismissed

the state-law charges. Id. 3a n.1.

3. Mr. Gary appealed. While his appeal was pending, this Court held in Rehaif

v. United States, 139 S. Ct. 2191 (2019), that in a federal prosecution for illegal

possession of a firearm, the Government must prove that the defendant “kn[ew] of

his status as a person barred from possessing a firearm.” Id. at 2195. Mr. Gary then

filed a letter under Federal Rule of Appellate Procedure 28(j) asserting that his guilty

plea should be vacated in light of Rehaif because he was not informed at his plea

colloquy of “all the elements of the offenses.” Pet. 5.

After supplemental briefing, the Fourth Circuit vacated Mr. Gary’s convictions

and remanded to the district court for further proceedings. Pet. App. 1a-23a. It began

by presuming that “[b]ecause Gary did not attempt to withdraw his guilty plea in the

district court,” his claim was reviewable only for “plain error.” Pet. App. 5a. The plainerror doctrine requires the defendant to show that “(1) an error occurred; (2) the error

was plain; and (3) the error affected his substantial rights.” Id. (citing United States

v. Olano, 507 U.S. 725, 732 (1993)). If these showings are made and (4) the error

“seriously affects the fairness, integrity or public reputation of judicial proceedings,”

the appellate court may grant relief. Id. 5a-6a (quoting Olano, 507 U.S. at 732).

The parties agreed (as did the court of appeals) that the first two prongs of this

test were met: “[A]n error occurred,” and “it was plain.” Pet. App. 6a, 8a-9a.

The Fourth Circuit accordingly turned to the third prong of the plain error

inquiry—whether “the error affected [Mr. Gary’s] substantial rights.” Pet. App. 10a.

As Judge Luttig explained in an earlier opinion, this prong of the Olano test derives

from the same language in Federal Rule of Criminal Procedure 52 as does the test for

structural error: “affects substantial rights.” See United States v. David, 83 F.3d 638,

647 (4th Cir. 1996). Thus, under longstanding Fourth Circuit precedent, an error

necessarily affects substantial rights if it is “structural” in nature. Pet. App. 15a-16a.

The Fourth Circuit then concluded that a guilty plea taken in violation of

Rehaif meets each of the three independent tests for structural error. First, the error

“violated Gary’s right to make a fundamental choice regarding his own defense.” Pet.

App. 16a. This violation of his “autonomy” rendered the strength of the prosecution’s

case “irrelevant.” Id. 16a-17a. Second, the court of appeals found that a guilty plea

taken in violation of Rehaif “has consequences that are necessarily unquantifiable

and indeterminate.” Id. 17a (internal quotation marks and citation omitted). Third,

the court of appeals ruled that “fundamental unfairness results when a defendant is

convicted of a crime based on a constitutionally invalid guilty plea.” Id. 18a.

Finally, the Fourth Circuit held that a guilty plea taken in violation of Rehaif

satisfies the fourth prong of the Olano framework. Having “acknowledge[d] that not

every Rule 11 violation resulting in a constitutional error requires the automatic

reversal of a conviction,” Pet. App. 15a n.7, the court of appeals emphasized that “the

structural integrity of the judicial process is not only at stake but undermined” when

a defendant is not made aware of a mens rea element of an offense to which he pleads

guilty. Id. 21a. Where “life and liberty are at stake,” defendants must be “fully

informed” of the charge, “[e]ven where evidence in the record might tend to prove a

defendant’s guilt.” Id. 21a-22a.

5. The Government filed a petition for rehearing en banc, which the court of

appeals denied. Pet. App. 24a. Judge Wilkinson wrote a concurrence, joined by four

other judges. He maintained that the panel’s decision was incorrect but said that he

voted to deny en banc to speed the case’s path to this Court. Id. 25a. Judge Wilkinson

noted the circuits are split over the issue in this case. Id. And without citing any

statistics or any other empirical evidence, he asserted that the panel’s decision would

affect “[m]any, many cases” and “strain the resources” of prosecutors and district

courts. Id. 25a, 31a.

REASONS FOR DENYING THE WRIT

The circuits admittedly are divided over whether the plain-error standard

requires a defendant asserting a Rehaif error at his plea colloquy to show that, if

properly advised, he would potentially have gone to trial. But that conflict is not

enough to justify a spot on this Court’s docket. The Fourth Circuit’s decision affects

only a small slice of felon-in-possession convictions, and it has no ongoing significance

beyond that closed set of cases. Furthermore, the Rehaif error here provides a poor

setting in which to elaborate on the plain-error doctrine—in part because the doctrine

should not apply to the error here in the first place. Finally, the Fourth Circuit’s

decision is well-grounded in this Court’s precedent. In particular, a defendant has a

fundamental autonomy interest in knowing, before surrendering himself to years

behind bars, every element that the Government would have to prove against him at

trial. A violation of that interest, in and of itself, necessitates relief.

The question presented has minimal practical import.

The Government in this case does not ask this Court to mint any new rule of

law. Instead, its argument for certiorari is primarily a consequentialist one. The

Government asks this Court to resolve how two prongs of the well-established plainerror framework apply to guilty pleas taken in violation of Rehaif, asserting that the

matter presents “a frequently arising issue of significant practical importance.” Pet.

21. Neither part of the Government’s assertion is correct.

This issue arises in only a narrow sliver of felon-in-possession

prosecutions.

Felon-in-possession is no doubt “one of the most frequently prosecuted federal

offenses.” Pet. 23. But the question presented arises in only a narrow—and now

closed—slice of such prosecutions.

1. The question presented potentially affects only a narrow sliver of defendants

in the federal system—namely, those who entered guilty pleas and were sentenced

before June 21, 2019 (the day Rehaif was decided), and whose cases are still on direct

review. This is because the plain-error doctrine does not apply to defendants whose

convictions have become final. United States v. Frady, 456 U.S. 152, 166 (1982); see

also, e.g., United States v. Asmer, 2020 WL 6827829, at *2-10 (D.S.C. Nov. 20, 2020)

(refusing to extend decision below to collateral review). And in the wake of Rehaif,

the error that occurred below—the failure to advise a defendant of the knowledge-ofstatus element of 18 U.S.C. § 922(g)—has long stopped occurring. For the past

eighteen months, all defendants charged with felon-in-possession have presumably

been receiving adequate advisements at plea hearings.

2. Even within the group of felon-in-possession cases that are still on direct

review, the question presented seldom arises. To begin, the question presented affects

only defendants “who pleaded guilty,” not those who were convicted in trials. Pet. (I).

In fact, the Fourth Circuit recently granted rehearing en banc in a separate case to

address the distinct question how the plain-error doctrine applies to Rehaif errors at

trial. See United States v. Medley, 972 F.3d 399 (4th Cir.), reh’g en banc granted, 828

Fed. Appx. 923 (2020). A judge who sat on the panel in that case explained that

convictions obtained at trial pose a different issue than this case, and the Government

has never claimed otherwise. See 972 F.3d at 424 n.2 (Quattlebaum, J., dissenting);

see also United States v. Collins, ___ F.3d ___, 2020 WL 7062467, at *3 (4th Cir. 2020)

(denying plain-error relief on claim that jury instructions at the close of trial violated

Rehaif); infra at 19-26 (explaining how the guilty plea context is critical to decision

below).

Yes, most people charged with federal crimes plead guilty instead of going to

trial. But the Government, like Judge Wilkinson, overlooks the fact that the vast

majority of defendants who plead guilty also waive their right to appeal. See Nancy

J. King & Michael E. O’Neill, Appeal Waivers and the Future of Sentencing Policy,

55 Duke L.J. 209, 212 (2005). Indeed, a recent analysis found that nearly 80% of

standard plea agreements contain such appellate waivers. Susan R. Klein, et al.,

Waiving the Criminal Justice System: An Empirical and Constitutional Analysis, 52

Am. Crim. L. Rev. 73, 87 (2015). And beyond such boilerplate language, the

Government can—and often does—insist on case-specific waivers.

The predominance of appeal waivers appears to be especially pronounced

within the Fourth Circuit. Many U.S. Attorney’s Offices in the jurisdiction have firm

policies of insisting upon appeal waivers. For example, in the Eastern District of

North Carolina, appeal waivers attached to guilty pleas are robust, and contain no

language that indicates a change in law can provide grounds to challenge a guilty

plea. 2 Courts have held that waivers like this are enforceable even when an

intervening decision from this Court makes clear that the defendant’s constitutional

rights were violated, see United States v. Blick, 408 F.3d 162, 170-71 (4th Cir. 2005),

and have enforced waivers specifically with respect to Rehaif claims, see, e.g., United

States v. Marc, 806 Fed. Appx. 820, 823-24 (11th Cir. 2020).

Finally, only a fraction of those defendants who pleaded guilty before Rehaif

but still can appeal their convictions on Rehaif grounds have chosen to do so. Some

defendants have simply failed to raise Rehaif on appeal in a timely manner. See, e.g.,

United States v. Johnson, 812 Fed. Appx. 126, 127 n.* (4th Cir. 2020). Others have

elected for personal reasons to expressly renounce the issue. See, e.g., United States

v. Speight, 812 Fed. Appx. 160, 161 (4th Cir. 2020). “Most people who have spent any

length of time incarcerated prefer prison to jail.” James William Kilgore,

Understanding Mass Incarceration 106 (2015). And having one’s guilty plea vacated

typically results in being removed from ongoing prison programming and transported

back to crowded local jails. Accordingly, many defendants who are unlikely to obtain

meaningful relief in the end from a Rehaif claim (because they will simply be

convicted again and given the same or a similar sentence as before) have seemingly

concluded that the personal and psychological toll of reopening their cases outweighs

any possible benefit.

2 The only exceptions given in the general appeal waiver are “an appeal or

motion based upon grounds of ineffective assistance of counsel or prosecutorial

misconduct not known to [the defendant] at the time of [the defendant’s] guilty plea.”

Powell v. United States, 2020 WL 2199622, at *1 (E.D.N.C. May 6, 2020).

The Fourth Circuit’s holding imposes no significant burden on the

federal courts.

The Government concedes that defendants are entitled to plain-error relief

where they can show “a reasonable probability” that, but for Rehaif errors in their

cases, they “would not have entered” their guilty pleas. Pet. 10 (quoting United States

v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). So the practical impact of the question

presented is limited to cases currently pending on direct review in which defendants

cannot satisfy the Government’s proposed test. That impact is slight.

1. According to the Government, defendants “will rarely view the knowledgeof-status element as a reason to go to trial.” Pet. 11. If that is correct, virtually all of

the defendants whose pleas are subject to vacatur under the decision below, but who

cannot satisfy the Government’s proposed test, will presumably readily plead guilty

on remand anyway. Put another way, if the Government is right that the evidence

against most of the defendants in Mr. Gary’s position is so strong that no reasonable

person would insist on a trial, then one must assume that the Government will easily

procure guilty pleas on remand in this finite group of cases.

2. The Government argues that the Fourth Circuit’s holding below

“potentially” has implications “beyond Rehaif-related error.” Pet. 23. But in the

nearly thirty years that the plain-error framework has existed, the lower courts have

never before had to apply it to guilty pleas taken in violation of an intervening

decision like Rehaif—that is, a decision where this Court did not simply construe a

criminal statute more narrowly than lower courts had, but declared that lower courts

unanimously had overlooked an entire element of an offense. If the Fourth Circuit’s

decision ever turns out to have relevance beyond Rehaif, and the circumstances

otherwise warrant review, the Court could step in then. At this point, that prospect

appears highly unlikely.

That leaves the Government’s short discussion of a more general question that

this Court has previously reserved—namely, whether structural error automatically

satisfies prong three of the plain-error test. Pet. 15 (citing Puckett v. United States,

556 U.S. 129, 140 (2009)). Because the Government’s primary argument is that the

error here is not structural at all, this case would not be an appropriate vehicle for

addressing that general question. In any event, that general question is not worthy

of this Court’s attention. There is no split on the issue. Every court of appeals to

consider it has agreed with the Fourth Circuit’s position that “if an error is

determined to be structural, the third prong of [the plain-error framework] is

satisfied.” Pet. App. 16a; see also United States v. Barnett, 398 F.3d 516, 526-27 (6th

Cir. 2005); United States v. Wyles, 102 F.3d 1043, 1057 (10th Cir. 1996); United

States v. Colon-Pagan, 1 F.3d 80, 81-82 (1st Cir. 1993) (Breyer, C.J.). That consensus

is clearly correct. See infra at 24-25.

II.

The Rehaif error here is a poor setting in which to expound upon the

plain-error doctrine.

The Government’s petition also falters because the small category of cases at

issue here does not present an appropriate platform for elaborating on the plain-error

doctrine. The doctrine should not apply under the circumstances here at all. And even

if it did, Mr. Gary would satisfy the Government’s proposed standard.

The plain-error standard should not apply here at all.

The Government’s question presented asks whether Mr. Gary is “entitled to

plain-error relief” under the circumstances here. Pet. (I). But a “prior issue,” fairly

included in that question, is whether plain error review applies at all. See LeBron v.

Nat’l R.R. Passenger Corp., 513 U.S. 374, 378-83 (1995) (logically antecedent issue

was fairly included within the question presented); see also e.g., Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 173 n.1 (2009) (same); United States v. Grubbs, 547 U.S.

90, 94 n.1 (2006) (same); Ballard v. Commissioner, 544 U.S. 40, 47 n.2 (2005) (same).

In Grubbs, for instance, the Court observed that “[i]t ma[de] little sense to address

what the Fourth Amendment requires of anticipatory search warrants if it does not

allow them at all.” 547 U.S. at 93 n.1. So too here; it would make little sense to address

how the plain-error doctrine applies to guilty pleas taken in violation of Rehaif (but

before Rehaif was decided) if the doctrine does not apply to this scenario at all. 3

The answer to that threshold question is no: The strictures of plain-error

review should not apply where every court of appeals with criminal jurisdiction had

already rejected the argument. And here, as the Government itself is at pains to

emphasize (Pet. 3), every such court had indeed held at the time of Mr. Gary’s plea

3 Even if this threshold issue were not fairly included within the question

presented, Mr. Gary, as respondent, would still be entitled to “defend the judgment

below on any ground which the law and the record permit, provided the asserted

ground would not expand the relief which has been granted.” Smith v. Phillips, 455

U.S. 209, 215 n.6 (1982); see also, e.g., Salinas v. Texas, 570 U.S. 178, 183 (2013)

(plurality opinion) Teague v. Lane, 489 U.S. 288, 300 (1989) (plurality opinion).

that the felon-in-possession statute did not contain a mens rea element respecting

the relevant status. 4

Courts have recognized that a defendant should “not be stuck with plain error

review for having failed to voice an objection when doing so would have been futile.”

United States v. Uscanga-Mora, 562 F.3d 1289, 1294 (10th Cir. 2009) (Gorsuch, J.);

see also, e.g., United States v. Kyle, 734 F.3d 956, 962 n.3 (9th Cir. 2013) (“A failure

to raise a futile objection does not waive the objection.”). “[T]o require a defendant to

raise all possible objections at trial despite settled law to the contrary would

encourage frivolous arguments, impeding the proceeding and wasting judicial

resources.” United States v. Baumgardner, 85 F.3d 1305, 1309 (8th Cir. 1996). It

would also place the defendant in a predicament “with no good options.” United States

v. Baker, 489 F.3d 366, 372 (D.C. Cir. 2007). “If he objects,” he may “risk[] angering

the judge” and “possibly encourage[] the court to impose a more severe sentence.” Id.

But if he does not object, the defendant would consign himself to the restricted scope

of appellate review for plain error.

Where the circuits uniformly agreed that the defendant’s legal position was

wrong, the futility exception should apply. As Justice Scalia put it in a related

4 Pet. 3; see also United States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991);

United States v. Belk, 346 F.3d 305, 311 (2d Cir. 2003); United States v. Huet, 665

F.3d 588, 596 (3d Cir. 2012); United States v. Langley, 62 F.3d 602, 604-08 (4th Cir.

1995) (en banc); United States v. Rose, 587 F.3d 695, 705-06 & n.9 (5th Cir. 2009);

United States v. Olender, 338 F.3d 629, 637 (6th Cir. 2003); United States v. Lane,

267 F.3d 715, 720 (7th Cir. 2001); United States v. Kind, 194 F.3d 900, 907 (8th Cir.

1999); United States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997); United States v.

Games-Perez, 667 F.3d 1136, 1142-43 (10th Cir. 2012); United States v. Jackson, 120

F.3d 1226, 1229 (11th Cir. 1997); United States v. Bryant, 523 F.3d 349, 354 (D.C.

Cir. 2008).

context, “[w]hen the law is settled against a defendant at trial he is not remiss for

failing to bring his claim of error to the court’s attention. It would be futile.”

Henderson v. United States, 568 U.S. 266, 284 (2013) (Scalia, J., dissenting on other

grounds). In fact, public defenders might properly be praised for declining in every

single criminal case to make dozens, if not hundreds, of seemingly frivolous,

boilerplate objections—all based on the faintest flicker of hope that this Court might

reject an overwhelming body of precedent before the case becomes final. Nor should

defendants be required to be clairvoyant; “plain error review should not be like a

hidden mantrap, encountered without warning yet often deadly.” Uscanga-Mora, 562

F.3d at 1294 (Gorsuch, J.).

In fact, this Court has already established a similar futility exception in an

analogous area of law. Under the habeas “cause” standard—which, like plain error

review, is designed to protect interests in the “accuracy and efficiency” of trial

proceedings—a defendant’s failure to raise an objection is excused when the he faced

a “‘near-unanimous body’” of adverse lower court decisions. Reed v. Ross, 468 U.S. 1,

10, 16-17 (1984) (citation omitted). All the more so under the even more extreme

circumstances here, where the body of lower court decisions was not just “nearunanimous” but entirely unanimous—and where the defendant is still on direct

review, rather than raising a collateral attack on a conviction that has become final.

Notwithstanding this reasoning, some courts of appeals have held, even when

defendants were faced with “solid wall[s] of circuit authority,” that plain-error review

applied in the absence of objections. See, e.g., United States v. Knoll, 116 F.3d 994,

1000 (2d Cir. 1997); see also United States v. Wilkinson, 137 F.3d 214, 229 (4th Cir.

1998) (citing Knoll, 116 F.3d at 1001). In so holding, those courts have relied

primarily on Johnson v. United States, 520 U.S. 461 (1997), a case in which the Court

applied the plain-error doctrine even though circuit precedent at the time of trial

foreclosed the defendant’s claim. But the facts of Johnson were different from the

situation Mr. Gary faced. At the time of Johnson’s trial, the circuits were split on the

underlying question of law at issue. See United States v. Gaudin, 515 U.S. 506, 527

(1995) (Rehnquist, C.J., concurring) (noting conflict). Where there is an active circuit

split on an issue, defendants are fairly on notice that the issue is debatable and that

this Court might take it up and resolve it. Thus, they should be expected to raise

salient objections. Where, by contrast, every single circuit has weighed in and rejected

the argument, it makes no sense to saddle defendants with the plain-error standard.

Mr. Gary would satisfy the Government’s proposed standard.

Even if this case were governed by the plain-error framework—and even if the

Government were correct that the determinative question under that framework is

whether there is “a reasonable probability that, but for the error, [Mr. Gary] would

not have entered the plea,” Pet. 10 (quoting United States v. Dominguez Benitez, 542

U.S. 74, 83 (2004))—Mr. Gary would still meet any fair application of that standard.

1. Section 922(g) requires a defendant charged with possessing a firearm as a

felon to know that he was previously convicted of a crime “punishable by

imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1); see also Rehaif,

139 S. Ct. at 2194. In the Fourth Circuit, the Government briefly referenced “several

[previous] convictions for which Gary faced a maximum penalty in excess of one year.”

Gov’t C.A. Supp. Br. 4. In this Court, the Government likewise makes a variety of

assertions about Mr. Gary’s criminal history, including two convictions in November

of 2015 for assault and battery. Pet. 4, 11. But when asked directly at oral argument

in the Fourth Circuit for its evidence regarding Section 922(g)’s knowledge-of-status

element, the Government pinned its argument exclusively on Mr. Gary’s prior

conviction in 2014 for second-degree burglary, for which he spent 691 days in jail. The

Government’s “no prejudice” argument consequently turns solely on that prior

conviction. 5

Mr. Gary’s knowledge regarding that 2014 conviction does not definitively

establish that he knew he had previously been convicted of a crime punishable by

When the Fourth Circuit asked what evidence supported Mr. Gary’s

knowledge of his status as a felon, the Government responded: “In this case, the 691

days Mr. Gary spent in jail on a prior offense.” CA4 Oral Arg. Recording 26:25-26:39.

A few minutes later, the court asked the Government to clarify the extent of its

evidence on the knowledge-of-status element: “So the Government, in these cases

now, in order to prove the Rehaif element, is simply, um, putting in evidence of

incarceration beyond one year. And that’s it . . . the Government’s not [putting in a]

probation document that he signed that says ‘and as a felon you’re prohibited from

owning, uh, or possessing a firearm?’” The Government admitted that documentary

evidence of that kind, if it existed, would be superior: “Your Honor, that is absolutely

the better evidence.” “But that is not what the Government is doing?” repeated the

court. The Government replied that it had no other evidence. “We don’t have that in

Mr. Gary’s case, and so we’re falling back on the amount of time that he did in fact

serve.” CA4 Oral Arg. Recording 29:22-30:05.

In any event, the charges that resulted in the 2015 plea would not make any

difference here. Those charges led to two three-year sentences and a three-year

probation revocation sentence, all of which ran concurrently. But Mr. Gary served

less than one year in custody following his guilty plea to those offenses. PSR ¶ 33.

Even if one also accounts for time he may have spent in pretrial detention (the PSR

does not say whether he was detained between his arrest and plea), Mr. Gary would

still have spent less than three years in custody. Id. He could have understood that

overall period of time in custody as three separate one-year sentences, none of which

exceeded one year in length.

more than one year in prison. All of the 691 days Mr. Gary spent in jail in connection

with that charge were in pretrial detention, not following his conviction. PSR ¶ 30.

And it is common for people to spend a significantly “longer” period of time in jail

awaiting completion of their prosecution than conviction on the pending charge(s)

would allow in terms of a prison sentence. Jenny E. Carroll, Pretrial Detention in the

Time of Covid-19, 115 Nw. U. L. Rev. Online 59, 67 (2020); see also Lindsay Street,

Some Say It’s Time to Review the Efficacy of Jail Bonds, Statehouse Rep’t (Dec. 3,

2020) (describing South Carolina practices). 6 When accepting Mr. Gary’s guilty plea

in 2014, the court counted his nearly two years of pretrial detention toward an eightyear suspended sentence. But Mr. Gary—who did not complete high school and has

no legal training—could reasonably have understood this series of events to mean

that his conviction in 2014 carried no prison time at all. Particularly from his

standpoint, a suspended sentence was not the same as serving time in prison.

2. In its petition, the Government relies on three further aspects of the record

to argue that the district court’s failure to advise Mr. Gary of the knowledge-of-status

plea element could not have “affected his plea decision.” Pet. 11. In light of the

Government’s representations in the court of appeals, these arguments are waived.

At any rate, none of the material the Government cites demonstrates overwhelming

evidence of guilt.

First, the Government asserts that “by the time of the second arrest at issue

here,” Mr. Gary “had already been charged as a felon-in-possession under state law

https://www.statehousereport.com/2018/11/02/news-some-say-its-time-toreevaluate-efficacy-of-jail-bonds/.

as a result of the arrest five months earlier.” Pet. 11. That is incorrect. Mr. Gary was

charged after his first arrest with violating S.C. Code Ann. § 16-23-20. That statute

is not a felon-in-possession statute; in fact, it does not refer to prior offenses at all.

See supra at 1 & n.1. That charge, therefore, could not have put Mr. Gary on notice

about his relevant status.

Second, the Government references Mr. Gary’s statement during his allocution

that “‘I know I was wrong for having the firearm.’” Pet. 5. Yet this after-the-fact

expression of remorse—made after he had been arrested, charged, and repeatedly

told by the Government and the court that he had acted illegally—reveals nothing

about what Mr. Gary knew at the time of the offense. This is especially true given

that the district court never told him that the crime to which he was pleading guilty

required knowledge of relevant status.

Third, the Government points to the statement in Mr. Gary’s sentencing

memorandum that he “‘was aware that he was not supposed to have a weapon.’” Pet.

5. This after-the-fact statement is no more relevant than the one in his allocution. A

belief that one is “not supposed” to have a weapon—for whatever reason—is not

sufficient to satisfy Section 922(g)’s requirement that a person know specifically that

he “belonged to the relevant category of persons barred from possessing a firearm.”

Rehaif, 139 S. Ct. at 2200. Mr. Gary’s statement likely referred to nothing more than

his awareness of his two (dismissed) gun charges under South Carolina state law,

neither of which was based on having previously been convicted of a crime punishable

by more than one year in prison. See supra at 1 & n.1.

III.

The Fourth Circuit’s decision is correct.

In United States v. Olano, 507 U.S. 725 (1993), this Court established a four-

part framework for granting plain-error relief. To find plain error, there must first

“indeed be an error.” Id. at 732 (internal quotation marks omitted). Second, that error

must be “plain,” or “obvious.” Id. at 734. Third, the error must “affect [the] substantial

rights” of the defendant. Id. If all three of these criteria are met, then a court is

entitled at the fourth step to use its discretion to correct such errors when they

“seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736 (citation omitted).

The Government acknowledges that a guilty plea taken in violation of Rehaif

satisfies the first two prongs of this test. Pet. 9. The Government thus focuses solely

on Olano’s third and fourth prongs, arguing that the Fourth Circuit incorrectly

determined that those prongs also are necessarily satisfied in this context. The court

of appeals’ determinations, however, are correct.

The constitutional error at Mr. Gary’s plea colloquy affected his

substantial rights.

1. The third prong of the plain-error test “requires the same kind of inquiry”

as the Court has established for determining whether an error is structural. Olano,

507 U.S. at 734. Put another way, an error necessarily affects a defendant’s

“substantial rights” if it is not susceptible to harmless-error review. And this Court’s

precedent, as well as first principles, establish that a guilty plea taken in violation of

Rehaif is structural error.

a. Precedent. ‘The first and most universally recognized requirement of due

process” is that every defendant receive “real notice of the true nature of the charge

against him.” Henderson v. Morgan, 426 U.S. 637, 645 (1976) (quoting Smith v.

O’Grady, 312 U.S. 329, 334 (1941)); see also Bousley v. United States, 523 U.S. 614,

618 (1998); McCarthy v. United States, 394 U.S. 459, 466 (1969). That being so, the

Court held in Henderson that where a trial court failed at a plea colloquy to inform

the defendant of an intent element regarding the charge, accepting the defendant’s

guilty plea violated the Due Process Clause’s requirement that guilty pleas be

knowing and voluntary. 426 U.S. at 646. Furthermore, the Henderson Court held that

the violation of this constitutional principle required the defendant’s guilty plea to be

set aside, even “assum[ing] . . . that the prosecutor had overwhelming evidence of

guilt available.” Id. at 644.

The Henderson Court also noted that the defendant’s “unusually low mental

capacity . . . foreclose[d] the conclusion that the error was harmless beyond a

reasonable doubt.” 426 U.S. at 647. But contrary to the Government’s contention (Pet.

16), that passage does not mean that a harmless-error analysis is required when a

trial court omitted a mens rea element from a plea colloquy. The Court simply

observed, given the defendant’s low mental capacity in that case, that any potential

argument that the error was harmless was “foreclose[d].” 426 U.S. at 647. At any

rate, the only argument the Government actually makes for why the error here is

subject to harmless-error review is that “the government’s evidence” on the mens rea

element was overwhelming. Pet. 11, 14 (internal quotation marks and citation

omitted). But that is exactly what the Court ruled in Henderson was irrelevant to

whether relief should be granted, for reasons having nothing to do with the particular

defendant’s mental capacity. See 426 U.S. at 644-46; see also Bradshaw v. Stumpf,

545 U.S. 175, 183 (2005) (citing Henderson for the rule that “[w]here a defendant

pleads guilty to a crime without having been informed of the crime’s elements,” the

knowing and voluntary standard “is not met, and the plea is invalid”) (emphasis

added).

The Government also contends that United States v. Dominguez Benitez, 542

U.S. 74 (2004), suggests that the error here is subject to harmless-error analysis

because the Court in that case conducted such an analysis in the context of an

imperfect Rule 11 colloquy. Pet. 18-19. The Government is wrong. Dominguez dealt

with a nonconstitutional violation of Rule 11 (namely, a violation of the requirement

that the defendant be advised that he could not withdraw his plea if the court rejected

the prosecution’s recommended sentence), not a violation of the constitutional

requirement that guilty pleas be knowing and voluntary. In fact, Dominguez

expressly “contrast[ed]” cases involving “the constitutional question whether a

defendant’s guilty plea was knowing and voluntary.” 542 U.S. at 84 n.10. The Court

emphasized it was not suggesting that such pleas could “be saved even by

overwhelming evidence that the defendant would have pleaded guilty regardless.” Id.

The Government tries to minimize this express distinction in Dominguez,

maintaining that the Court was distinguishing only the situation in Boykin v.

Alabama, 395 U.S. 238 (1969). In Boykin, the Court held that the defendant’s plea

was not knowing and voluntary because the record showed no evidence that he was

advised of “any of the constitutional rights that he gave up through his plea.” Pet. 18.

But the Government ignores that the Court in Dominguez characterized Boykin

merely as an “example” of the kind of constitutional error that “must be reversed”

regardless of the strength of the prosecution’s evidence. Dominguez, 542 U.S. at 84

n.10. And the Court in Boykin itself explained that because “a guilty plea is an

admission of all the elements of a formal criminal charge, it cannot be truly voluntary

unless the defendant possesses an understanding of the law in relation to the facts.”

395 U.S. at 243 n.5 (citation omitted). That passage captures this case. Mr. Gary was

never advised of the mens rea aspect of the “crucial” element of the charged offense.

Rehaif, 139 S. Ct. at 2197. The error here is thus very different from a trial court

simply misdescribing one of the elements of the offense, while advising the defendant

of all the elements. Compare, e.g., Bousley, 523 U.S. at 616-17.

b. First principles. Omission of the knowledge-of-status element of Section

922(g) from a plea colloquy also constitutes structural error as a matter of first

principles. The Court has identified three categories of structural errors: (a) those

where the right at issue is “not designed to protect the defendant from erroneous

conviction but instead protects some other interest”; (b) those where the “effects of

the error are simply too hard to measure”; and (c) those where the error “always

results in fundamental unfairness.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1908

(2017). The Fourth Circuit correctly held that the Rehaif error here is structural

under each of those independent tests.

First and foremost, a guilty plea taken in violation of Rehaif contravenes a

defendant’s interest in “mak[ing] the fundamental choices about his own defense.”

McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018). In McCoy, the Court held that a

violation of a defendant’s constitutional right to decide whether to admit guilt at trial

constitutes structural error. It explained that even when counsel believes “that

confessing guilt offers the defendant the best chance to avoid the death penalty,” a

defendant must have the autonomy to “insist that counsel refrain from admitting

guilt.” Id. at 1505. Similarly, in Faretta v. California, 422 U.S. 806 (1975), the Court

held that a defendant “must be free personally to decide whether in his particular

case counsel is to his advantage,” even if refusing counsel is “ultimately to his own

detriment.” Id. at 834. These holdings reflect the Framers’ belief in “the inestimable

worth of free choice.” Id.

If, as McCoy and Faretta hold, a deprivation of a defendant’s right to decide

how he will put forward his defense impinges a defendant’s autonomy, it necessarily

follows that an impingement of a defendant’s right to determine whether he puts

forward a defense likewise violates a vital autonomy interest. Before giving up his

liberty and agreeing to spend years in prison—separated from his family and friends

and housed in a concrete cell—Mr. Gary had the right to be informed of every fact the

Government would have to prove at a jury trial. Only with that complete information

could Mr. Gary make a “choice on whether to plead guilty” that truly respected his

autonomy. Pet. App. 16a.

The Government responds that Mr. Gary’s autonomy interest was not

violated—and thus the error here is not structural—because his power to decide

whether to defend himself with respect to Section 922(g)’s status element was not

transferred to “someone else[],” such as his counsel. Pet. 14. But this misses the point.

It violates a defendant’s autonomy to thwart his ability to choose knowingly and

voluntarily whether to plead guilty, regardless of whether that power is transferred

to someone else. At any rate, affirming Mr. Gary’s conviction would involve

transferring his decision-making power to another entity. The federal judiciary would

have to decide that it would not have been in Mr. Gary’s interest to challenge the

knowledge-of-status element and go to trial. It should be Mr. Gary’s decision, not a

federal court’s, whether to put up a defense on the mens rea component of a felon-inpossession prosecution that “separat[es] innocent from wrongful conduct.” Rehaif,

139 S. Ct. at 2197 (citation and internal quotation marks omitted).

Second, the Rehaif error here makes it “impossible” to determine whether the

error was ‘harmless beyond a reasonable doubt.’” Weaver, 137 S. Ct. at 1908 (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). Because the Government has never

put Mr. Gary on proper notice or presented evidence of his knowledge of his status,

there is real no way to know “what choice Gary would have made,” if properly advised,

“regarding whether to plead guilty or go to trial.” Pet. App. 18a; see also Lee v. United

States, 137 S. Ct. 1958, 1966 (2017) (noting “there is more to consider” when deciding

whether to plead guilty “than simply the likelihood of success at trial”). Certainly a

court lacks the capacity with such a limited record to pronounce that a defendant in

Mr. Gary’s position would not have gone to trial.

The Government says that Neder v. United States, 527 U.S. 1 (1999), dictates

that harmless-error analysis is nevertheless possible here. But Neder stands only for

the proposition that when an element was omitted from instructions given to a jury

at the close of trial, a court may permit a guilty verdict to stand where the trial court

found the element was satisfied and the prosecution presented overwhelming

evidence in that regard. See id. at 6-15. A full trial is worlds apart from a guilty plea.

Evidence admitted at trial is introduced in an adversarial setting and is subject to a

panoply of rules designed to ensure its accuracy. Pleading guilty, by contrast, is an

inherently conciliatory process in which the defendant has no incentive, and little

opportunity, to challenge the prosecution’s allegations. Indeed, doing so can be

harmful to defendants and jeopardize sentence reductions for the “acceptance of

responsibility.” U.S.S.G. § 3E1.1.

Third, a guilty plea taken in violation of Rehaif is structural error because it

“always results in fundamental unfairness.” Weaver, 137 S. Ct. at 1908. The

Constitution contemplates “a norm in which the accused” alone is the “master of his

own defense.” Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979). Implicit in

this norm is the presumption that the criminal defendant must be “fully informed” in

order to evaluate “his own best interests.” Martinez v. Ct. of Appeal, 528 U.S. 152,

165 (2000) (Scalia, J., concurring in judgment). If the defendant is not advised of the

critical mens rea element of the charged offense, no resulting “punishment may be

regarded as fundamentally fair.” Rose v. Clark, 478 U.S. 570, 578 (1986).

2. As a fallback argument, the Government briefly asserts that even if the error

here is structural, it still does not satisfy Olano’s third prong. Pet. 15. According to

the Government, a cost-benefit analysis suggests that guilty pleas taken in violation

of Rehaif need not always be vacated on direct review. Id. This suggestion overlooks

the text of Rule 52. The “plain language” of that Rule dictates that a structural error

necessarily “affects substantial rights.” United States v. David, 83 F.3d 638, 647 (4th

Cir. 1996) (Luttig, J.) (quoting Fed. R. Crim. P. 52(a)). That is the exact same test

that, under Rule 52(b), governs prong three of the Olano framework. 7 The

Government’s argument also ignores the fact that autonomy interests are not subject

to cost-benefit analyses.

The error seriously affected the fairness, integrity, or public

reputation of judicial proceedings.

The Fourth Circuit also correctly determined that the Rehaif error here

seriously affected the “fairness, integrity, or public reputation of judicial

proceedings.” Olano, 507 U.S. at 736 (citation omitted). As noted above, the rule that,

before pleading guilty, a criminal defendant must receive “real notice of the true

nature of the charge against him” is “the first and most universally recognized

requirement of due process.” Bousley, 523 U.S. at 618 (quoting Smith, 312 U.S at

334). That longstanding principle was violated here. Consequently, “the structural

integrity of the judicial process” would be undermined if Mr. Gary’s “conviction[]

based on [a] constitutionally invalid guilty plea[ were allowed] to stand.” Pet. App.

21a.

The Government’s sole challenge to this analysis is a “case-specific and factintensive” argument. Pet. 20 (citation omitted). Comparing this case to Johnson and

United States v. Cotton, 535 U.S. 625 (2002), the Government contends that the

omission of the crucial element from Mr. Gary’s plea colloquy is tolerable because the

evidence on the element “would have been uncontestable.” Pet. 19-20. But Johnson

7 Rule 52 provides in full: (a) Harmless Error. Any error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded. (b) Plain

Error. A plain error that affects substantial rights may be considered even though it

was not brought to the court’s attention.” (emphases added).

and Cotton, like Neder, involved trials, not guilty pleas. And the Court has explained

that “[a]n error may ‘seriously affect the fairness, integrity or public reputation of

judicial proceedings’ independent of the defendant’s innocence.” Olano, 507 U.S. at

736-37 (emphasis added). “By focusing instead on principles of fairness, integrity, and

public reputation, the Court recognized a broader category of errors that warrant

correction on plain-error review.” Rosales-Mireles v. United States, 138 S. Ct. 1897,

1906 (2018). The autonomy violation here during Mr. Gary’s plea colloquy falls into

that broader category.

In any event, the evidence against Mr. Gary was not, in fact, overwhelming.

See supra at 14-17.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be denied.

Respectfully submitted,