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

Supreme Court briefMar 18, 2021

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No. 20-444

IN THE

UNITED STATES OF AMERICA,

Petitioner,

MICHAEL ANDREW GARY,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR RESPONDENT

Kimberly H. Albro

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

1901 Assembly Street

Suite 200

Columbia, SC 29201

Jeremy Maltby

Kendall Turner

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

Jeffrey L. Fisher

Counsel of Record

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@law.stanford.edu

QUESTION PRESENTED

Whether the court of appeals correctly held that

the Rehaif error in Mr. Gary’s case requires vacatur

of his guilty plea, irrespective of any case-specific

demonstration of prejudice.

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES .......................................iv

BRIEF FOR RESPONDENT ....................................... 1

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

SUMMARY OF THE ARGUMENT............................. 6

ARGUMENT ................................................................ 8

Mr. Gary need not make a record-specific

showing of prejudice because Rule 52(a)

governs, and the due process error here

automatically satisfies that rule .......................... 8

A. Rule 52(a), not Rule 52(b)’s plain-error

doctrine, governs here ..................................... 8

B. A Rehaif violation in conjunction with

taking a guilty plea is structural error ........ 22

1. The constitutional error here meets

all three tests for structural error .......... 22

2. This Court’s precedent concerning

omitted elements during guilty pleas

confirms the error is structural .............. 35

III. Even if Rule 52(b)’s plain-error doctrine

applies, Mr. Gary need not make a casespecific showing of prejudice .............................. 40

A. Because the error here is structural, it

necessarily affects substantial rights ........... 40

B. The due process violation here

necessarily had a serious effect on the

fairness, integrity or public reputation

of judicial proceedings ................................... 43

iii

C. The Government’s “practical” concerns

fall flat ........................................................... 50

CONCLUSION ........................................................... 52

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. United States,

762 F.3d 787 (8th Cir. 2014) ............................... 16

Barrett v. United States,

423 U.S. 212 (1976).............................................. 31

Bethesda Hosp. Ass’n v. Bowen,

485 U.S. 399 (1988).............................................. 15

Bousley v. United States,

523 U.S. 614 (1998)............................ 14, 33, 34, 42

Boykin v. Alabama,

395 U.S. 238 (1969).................................. 26, 28, 38

Bradshaw v. Stumpf,

545 U.S. 175 (2005)............................ 25, 26, 36, 37

Brady v. United States,

397 U.S. 742 (1970).............................................. 24

Camberling v. McCall,

2 U.S. 280 (1797).................................................. 14

Cary v. Curtis,

44 U.S. 236 (1845)................................................ 14

Chapman v. California,

386 U.S. 18 (1967)................................................ 29

Cheek v. United States,

498 U.S. 192 (1991).............................................. 31

Class v. United States,

138 S. Ct. 798 (2018) ........................................... 36

Commonwealth v. Mendes,

974 N.E.2d 606 (Mass. 2012)............................... 21

Craft v. State,

314 S.E.2d 330 (S.C. 1984) .................................. 49

Crawford v. Washington,

541 U.S. 36 (2004)................................................ 15

Cruzan v. Director, Mo. Dep’t of Health,

497 U.S. 261 (1990).............................................. 27

Cutter v. Wilkinson,

544 U.S. 709 (2005).............................................. 46

District of Columbia v. Heller,

554 U.S. 570 (2008).............................................. 31

Downs v. United States,

879 F.3d 688 (6th Cir. 2018) ............................... 16

Faretta v. California,

422 U.S. 806 (1975)........................................ 23, 24

Gannett Co. v. DePasquale,

443 U.S. 368 (1979).............................................. 22

Great N. Ry. Co. v. Sunburst Oil & Refining Co.,

287 U.S. 358 (1932).............................................. 10

Greer v. United States,

S. Ct. No. 19-8709 .......................................... 46, 48

Gros v. United States,

136 F.2d 878 (9th Cir. 1943) ............................... 11

Hall v. Hall,

138 S. Ct. 1118 (2018)............................................ 9

Henderson v. Morgan,

426 U.S. 637 (1976)............................ 35, 36, 37, 38

Henderson v. United States,

568 U.S. 266 (2013).............................................. 21

Hormel v. Helvering,

312 U.S. 552 (1941).............................................. 11

Hudson v. United States,

522 U.S. 93 (1997)................................................ 15

James v. Andrews,

No. 21-6159 (4th Cir.) .......................................... 51

In re Jeffers,

No. 19-359 (4th Cir.) ............................................ 51

Johnson v. Conley,

2018 WL 4224076 (D. Conn. Sept. 5, 2018) ........ 25

Johnson v. United States,

520 U.S. 461 (1997).................................. 17, 44, 45

Knowles v. Mirzayance,

556 U.S. 111 (2009).............................................. 16

Lafler v. Cooper,

566 U.S. 156 (2012).............................................. 35

LeBron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995)................................................ 8

Lee v. United States,

137 S. Ct. 1958 (2017).......................................... 30

Magwood v. Patterson,

561 U.S. 320 (2010)................................................ 9

McCarthy v. United States,

394 U.S. 459 (1969)........................................ 26, 39

McCoy v. Louisiana,

138 S. Ct. 1500 (2018).................................. passim

McKaskle v. Wiggins,

465 U.S. 168 (1984).............................................. 23

Montejo v. Louisiana,

556 U.S. 778 (2009).............................................. 15

Morissette v. United States,

342 U.S. 246 (1952)........................................ 30, 31

vii

Neder v. United States,

527 U.S. 1 (1999)................................ 22, 32, 45, 46

Nwani v. Molly,

2018 WL 2461987 (E.D. Pa. May 31, 2018) ........ 25

Ohio v. Roberts,

448 U.S. 56 (1980)................................................ 14

Osborne v. State,

715 N.W.2d 436 (Minn. 2006) ....................... 12, 21

Patterson v. Alabama,

294 U.S. 600 (1935).......................................... 9, 10

People v. Black,

161 P.3d 1130 (Cal. 2007).................................... 20

Ratslaf v. United States,

510 U.S. 135 (1994).............................................. 31

Reed v. Ross,

468 U.S. 1 (1984)............................................ 14, 15

Rehaif v. United States,

139 S. Ct. 2191 (2019).................................. passim

Rosales-Mirales v. United States,

138 S. Ct. 1897 (2018).......................................... 43

Rose v. Clark,

478 U.S. 570 (1986)........................................ 32, 35

Silber v. United States,

370 U.S. 717 (1962) (per curiam) ........................ 11

Smith v. O’Grady,

312 U.S. 329 (1941).......................................... 7, 43

Smylie v. State,

823 N.E.2d 679 (Ind. 2005).................................. 21

Solorio v. United States,

483 U.S. 435 (1987).............................................. 15

viii

Star Athletica, L.L.C. v. Varsity Brands, Inc.,

137 S. Ct. 1002 (2017).......................................... 46

State v. Burke,

522 A.2d 725, 731 (R.I. 1987) .............................. 21

State v. Carter,

114 P.3d 1001 (Mont. 2005)................................. 21

State v. Goodrich,

2006 WL 9534 (Minn. Ct. App. Jan. 3, 2006) ..... 21

State v. Harris,

224 P.3d 830 (Wash. Ct. App. 2010) ................... 21

State v. Ledbetter,

881 A.2d 290 (Conn. 2005) ................................. 21

State v. Nelson,

196 A.2d 52 (N.H. 1963) ...................................... 21

State v. Nguyen,

133 P.3d 1259 (Kan. 2006) .................................. 21

Strickland v. Washington,

466 U.S. 668 (1984).............................................. 42

Sullivan v. Louisiana,

508 U.S. 275 (1993)........................................ 29, 34

Taylor v. Illinois,

484 U.S. 400 (1988).............................................. 44

Thornley v. Penton Publ’g, Inc.,

104 F.3d 26 (2d Cir. 1997) ................................... 13

Unger v. State,

48 A.3d 242 (Md. 2012)........................................ 21

United States v. Balde,

943 F.3d 73 (2d Cir. 2019) ................................... 34

United States v. Barnes,

No. 19-4259 (4th Cir.) .......................................... 51

United States v. Barnett,

398 F.3d 516 (6th Cir. 2005) ............................... 40

United States v. Baumgardner,

85 F.3d 1305 (8th Cir. 1996) ......................... 12, 19

United States v. Becerra,

939 F.3d 995 (9th Cir. 2019) ............................... 40

United States v. Bell,

70 F.3d 495 (7th Cir. 1995) ................................. 19

United States v. Brown,

663 F.2d 229 (D.C. Cir. 1981).............................. 16

United States v. Byers,

740 F.2d 1104 (D.C. Cir. 1984)............................ 19

United States v. Coleman,

961 F.3d 1024 (8th Cir. 2020) ............................. 34

United States v. Colon-Pagan,

1 F.3d 80 (1st Cir. 1993) ...................................... 40

United States v. Cotton,

535 U.S. 625 (2002)........................................ 44, 45

United States v. Cronic,

466 U.S. 648 (1984).............................................. 16

United States v. David,

83 F.3d 638 (4th Cir. 1996) ............................. 4, 41

United States v. Davis,

139 S. Ct. 2319 (2019).......................................... 43

United States v. Debowale,

498 F. Appx. 447 (5th Cir. 2012) ......................... 33

United States v. Dominguez Benitez,

542 U.S. 74 (2004)................................................ 38

United States v. Frady,

456 U.S. 152 (1982).............................................. 16

United States v. Gaudin,

515 U.S. 506 (1995)........................................ 17, 26

United States v. Harris,

No. 19-6915 (4th Cir.) .......................................... 51

United States v. Holden,

No. 18-4804 (4th Cir.) .......................................... 51

United States v. Indiviglio,

352 F.2d 276 (2d Cir. 1965) ................................. 19

United States v. Mahaffy,

693 F.3d 113 (2d Cir. 2012) ................................. 20

United States v. Martoma,

894 F.3d 64 (2d Cir. 2017) ................................... 20

United States v. Monteleone,

257 F.3d 210 (2d Cir. 2001) ................................. 20

United States v. Olano,

507 U.S. 725 (1993)...................................... passim

United States v. Parks,

No. 18-4369 (4th Cir.) .......................................... 51

United States v. Perkins,

161 F.3d 66 (D.C. Cir. 1998)................................ 20

United States. v. Ramirez-Castillo,

748 F.3d 205 (4th Cir. 2014) ............................... 40

United States v. Sloan,

No. 18-4782 (4th Cir.) .......................................... 51

United States v. Staggers,

961 F.3d 745 (5th Cir. 2020) ............................... 34

United States v. Triggs,

963 F.3d 710 (7th Cir. 2020) ............................... 34

United States v. Uscanga-Mora,

562 F.3d 1289 (10th Cir. 2009) ........................... 21

United States v. Washington,

12 F.3d 1128 (D.C. Cir. 1994)........................ 12, 19

United States v. Watson,

820 F. Appx. 397 (6th Cir. 2020) ......................... 34

United States v. Weiner,

3 F.3d 17 (1st Cir. 1993) ...................................... 19

United States v. Weston,

708 F.2d 302 (7th Cir. 1983) ............................... 16

United States v. Wyles,

102 F.3d 1043 (10th Cir. 1996) ........................... 40

United States v. Zeigler,

19 F.3d 486 (10th Cir. 1994) ............................... 13

Washington v. Recuenco,

548 U.S. 212 (2006).............................................. 45

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017).................................. passim

Constitutional Provisions

U.S. Const., amend. II................................................ 31

U.S. Const., amend. VI ........................................ 15, 24

Statutes

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

18 U.S.C. § 922(g)(1) ........................................ 2, 48, 50

18 U.S.C. § 924(a)(2) .................................................... 2

Cal. Penal Code § 1259 .............................................. 20

S.C. Code § 16-1-100(A) and (B) ................................ 50

S.C. Code § 16-3-600(D)(1) ......................................... 50

S.C. Code § 16-3-600(D)(2) ......................................... 50

S.C. Code § 16-23-20 .................................................... 1

xii

S.C. Code § 16-23-20(9) .............................................. 50

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

S.C. Code § 24-19-20 .................................................. 49

S.C. Code § 24-19-30 .................................................. 49

S.C. Code § 24-19-50 .................................................. 49

S.C. Code § 24-19-60 .................................................. 49

Rules and Regulations

Fed. R. App. P. 28(j) ..................................................... 3

Fed. R. Civ. P. 61........................................................ 10

Fed. R. Crim. P. 2 ................................................. 11, 13

Fed. R. Crim. P. 11 ....................................................... 2

Fed. R. Crim. P. 11(c)(3)(B) ....................................... 38

Fed. R. Crim. P. 51 ............................................... 10, 13

Fed. R. Crim. P. 52 ............................................. passim

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

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

U.S.S.G. § 3E1.1 ......................................................... 33

Minn. R. Crim. P. 31.02 ............................................. 21

Other Authorities

Bailey, Lee & Kenneth J. Fishman, Criminal

Trial Techniques (2020)................................. 32, 33

Blackstone, William, Commentaries on the

Laws of England (1769) ................................. 30, 31

Broom, Herbert, A Selection of Legal Maxims

(7th ed. 1874) ....................................................... 14

xiii

Carroll, Jenny E., Pretrial Detention in the

Time of Covid-19, 115 Nw. U. L. Rev.

Online 59 (2020) .................................................. 47

Federal Bureau of Prisons, BOP Policies,

Policy No. 1060.11 (Oct. 30, 2017) ...................... 24

Federal Bureau of Prisons, Growing Inmate

Crowding Negatively Affects Inmates,

Staff, and Infrastructure (Sept. 12, 2012) .......... 24

Federal Bureau of Prisons, Inmate Information

Handbook (Nov. 2012) ......................................... 25

Federal Procedure: Intervening Change in Law

and the Waiver of Constitutional Claims,

66 Colum. L. Rev. 386 (1966) ........................ 10, 11

Gilna, Derek, Damage to South Carolina

Prisons Shifts Prisoners to Lewisburg,

Pennsylvania, Prison Legal News (Oct. 1,

2020) ..................................................................... 25

Newton, Brent E., An Argument for Reviving

the Actual Futility Exception to the

Supreme Court’s Procedural Default

Doctrine, 4 J. App. Prac. & Process 521

(2002).................................................................... 14

Orfield, Lester Bernardt, Criminal Appeals in

America (1939) ..................................................... 10

Street, Lindsay, Some Say It’s Time to Review

the Efficacy of Jail Bonds, Statehouse Rep’t

(Nov. 2, 2018) ....................................................... 47

Wright, Charles A. et al., Fed. Practice &

Procedure (3d ed. 2002) ....................................... 13

BRIEF FOR RESPONDENT

Respondent Michael Andrew Gary respectfully

requests that this Court affirm the judgment of the

court of appeals.

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. 2a. The State of South Carolina

subsequently charged him with the misdemeanor

offense of violating S.C. Code § 16-23-20. J.A. 12-13.

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.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,

state authorities charged him with violating S.C.

Code § 16-23-30(C). J.A. 14-15.2 That provision

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 J.A. 130. The

Government repeated this error in its petition for certiorari. Pet.

2, 11. Having now had the error identified, see BIO at 1 n.1, the

Government asserts that Mr. Gary was “arrested” for felon-inpossession. U.S. Br. 2. It is hard to see why, even if true, that

would matter.

Page 15 of the Joint Appendix contains a typo. It says

“Section 16-23-020” where it should read “Section 16-23-030(C).”

forbids possessing “any stolen handgun or one from

which the original serial number has been removed

or obliterated.”

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. In

both counts, the indictment alleged simply that “the

Defendant, MICHAEL ANDREW GARY, having been

convicted of a crime punishable by imprisonment for

a term exceeding one year, knowingly did possess in

and affecting commerce, a firearm and ammunition,

. . . all of which had been shipped and transported in

interstate and foreign commerce.” J.A. 20-21. The

indictment made no mention of any requirement that

Mr. Gary knew of his status that prohibited him from

possessing a firearm.

Instead, the Government proceeded as if it had

charged a strict-liability offense. And to prove the

existence of a qualifying prior conviction, the

Government relied on a single conviction: Mr. Gary’s

conviction in 2014 for second-degree burglary. Pet.

App. 6a-7a & n.5; see also infra at 47-48. Mr. Gary

had spent 691 days in pretrial detention in

connection with that burglary charge. Pet. App. 7a

n.5. After pleading guilty, he was immediately

released under the terms of an eight-year suspended

sentence. Id.; J.A. 123-25.

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, U.S.

Br. 4—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 U.S. Br. 4. As with

the indictment, the district court made no mention of

any requirement on the Government’s part to prove

that Mr. Gary knew at the relevant times that he had

previously been convicted of a felony.

Mr. Gary acknowledged that he understood the

elements the district court laid out, and that his

conduct satisfied them. J.A. 40-42, 56.

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). He asserted that his

guilty plea should be vacated in light of Rehaif

because he was never informed in the district court of

“all the elements of the offenses.” C.A. Doc. 36, at 1-2

(Oct. 9, 2019).

After supplemental briefing, the Fourth Circuit

vacated Mr. Gary’s convictions and remanded to the

district court for further proceedings. Pet. App. 1a23a. It assumed that “[b]ecause Gary did not attempt

to withdraw his guilty plea in the district court,” his

claim was reviewable only for “plain error.” Id. 5a.

The plain-error 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,” an

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, 8a9a.

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. 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. Pet. App. 15a-16a.

The Fourth Circuit 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 Fourth Circuit ruled that

“fundamental unfairness results when a defendant is

convicted of a crime based on a constitutionally

invalid guilty plea.” Id. 18a.

Finally, the court of appeals held that a guilty

plea taken in violation of Rehaif satisfies the fourth

prong of the Olano framework. It reasoned 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. Pet. App. 21a. Where “life and

liberty are at stake,” defendants must be “fully

informed” of the charge before pleading guilty, even

where evidence at the prosecution’s disposal “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 that he preferred to speed

the case’s path to this Court. Id. 25a. Without citing

any statistics or any other empirical evidence, he also

asserted that the panel’s decision would affect

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

prosecutors and district courts. Id. 25a, 31a.

SUMMARY OF THE ARGUMENT

Mr. Gary is entitled to relief, without having to

demonstrate case-specific prejudice, from his

unconstitutionally procured guilty plea.

I. It would have been utterly futile for Mr. Gary

to have objected in the trial court to the omission of

Section 922(g)’s knowledge-of-status element, and he

raised the claim on appeal as soon as the law

supported it. Accordingly, his claim is subject to

Criminal Rule 52(a), not Rule 52(b)’s plain-error

doctrine. Rule 52 codified a system of appellate

review that had developed over several decades. That

system did not penalize parties for failing to have

objected where, as here, every federal court of

appeals had rejected the claim. Holding otherwise

now would frustrate—not facilitate—efficient and

fair process, requiring defense counsel in every case

to make endless, seemingly hopeless objections,

motions, and demands for evidentiary hearings.

A defendant is entitled to relief under Rule 52(a)

without any case-specific showing of prejudice if the

error was structural. The constitutional error here

was indeed structural. Procuring a guilty plea from

Mr. Gary without telling him everything the

Government would have had to prove at trial

deprived him of the personal autonomy to make the

fundamental choices regarding his defense. The

consequences of the error are also impossible to

measure. And allowing Mr. Gary’s guilty plea to

stand would be fundamentally unfair. A defendant

should not be deemed to have surrendered his liberty,

subjecting himself to years in a concrete cell, without

understanding the true nature of the charge against

him.

II. Even if Rule 52(b)’s plain-error doctrine

applied here, Mr. Gary would still not need to show

case-specific prejudice to obtain relief. The plain text

of Rule 52 dictates that constitutional errors that are

structural, by definition, “affect[] substantial rights.”

Fed. R. Crim. P. 52(b). The constitutional error here

also necessarily has a seriously effect on the fairness,

integrity, or public reputation of judicial proceedings.

“The first and most universally recognized

requirement of due process”—well known to lawyers

and laypersons alike—is that every defendant must

receive “real notice of the true nature of the charge

against him.” Smith v. O’Grady, 312 U.S. 329, 334

(1941). This time-honored principle is at war with

allowing a panel of federal judges to decide for

themselves whether it would have been wise for Mr.

Gary to defend against the “crucial element” of the

Section 922(g) charge—the element “separating

innocent from wrongful conduct.” Rehaif v. United

States, 139 S. Ct. 2191, 2197 (2019).

The Government lastly claims that automatically

granting relief under the circumstances here would

impose unjustified burdens on the judiciary. But the

reverse is true. Under the automatic vacatur rule the

court of appeals established, each federal district

judge would need to revisit, on average, only one

case. And if the Government is right that defendants

“will rarely view the knowledge-of-status element as

a reason to go to trial,” U.S. Br. 39, most of those

defendants will readily plead guilty again. On the

other hand, applying the plain-error doctrine here

and requiring a case-specific showing of prejudice to

obtain relief would trigger a cascade in every

criminal case of protective motions, frivolous

objections, and foreclosed legal arguments. Such a

transformation of federal criminal practice would be

far more consequential and deleterious than anything

this Court might have to say about the distinctive

and fleeting class of Rehaif violations at issue here.

ARGUMENT

Mr. Gary need not make a record-specific

showing of prejudice because Rule 52(a)

governs, and the due process error here

automatically satisfies that rule.

The Government implicitly acknowledges that a

threshold issue—“fairly included” in the question

presented, LeBron v. Nat’l R.R. Passenger Corp., 513

U.S. 374, 378-88 (1995)—is whether Criminal Rule

52(b)’s plain-error doctrine applies here in the first

place. See U.S. Br. 25-27; Cert. Reply 6-8; see also

BIO 11-14 (flagging this issue). It does not. Rule 52(a)

governs and requires relief unless the Government

can show that the due process error here—taking Mr.

Gary’s guilty plea without advising him of the mens

rea element recognized in Rehaif v. United States,

139 S. Ct. 2191 (2019)—did not affect substantial

rights. The Government cannot make any such

showing because the error is structural.

A. Rule 52(a), not Rule 52(b)’s plain-error

doctrine, governs here.

When Mr. Gary’s plea colloquy occurred, every

court of appeals with criminal jurisdiction had held—

some for as many as 30 years—that the prosecution

did not have to prove under 18 U.S.C. § 922(g) that a

defendant knew of his status as a person barred from

possessing a firearm. U.S. Br. 4; Rehaif, 139 S. Ct. at

2201 (Alito, J., dissenting). Under these extreme

circumstances, objecting would have been futile.

Failing to have done so, therefore, should not subject

Mr. Gary’s claim to plain-error review.

1. Rule 52 contains two subsections. Subsection

(a) provides that any error that “does not affect

substantial rights must be disregarded.” Subsection

(b) provides that an appellate court “may” grant relief

based on “a plain error that affects substantial rights

. . . even though it was not brought to the court’s

attention.” Taken together, these provisions make

clear that appellate courts may grant relief based on

claims that were not pressed in district court. But

they do not expressly say whether unpreserved

claims may be addressed only under Rule 52(b), or

whether certain unpreserved claims may be properly

considered under Rule 52(a).

To answer that question, it is necessary to look to

the legal roots of the phrase “plain error.” Rule 52 “is

a restatement” of a preexisting system of plain-error

review. Fed. R. Crim. P. 52(b), Advisory Committee

Note (1944). Because Rule 52 codifies a legal term of

art, the term “brings the old soil with it,” “carr[ying]

forward the same meaning” this Court previously

“ascribed to it.” Hall v. Hall, 138 S. Ct. 1118, 1128

(2018); see also, e.g., Magwood v. Patterson, 561 U.S.

320, 331-33 (2010) (construing AEDPA’s phrase

“second or successive” according to preexisting law).

The law that Rule 52(b) codified makes clear that

plain-error review does not apply under the

circumstances here. For example, in Patterson v.

Alabama, 294 U.S. 600 (1935), this Court held,

without any mention of plain error, that “the Court is

bound to consider any change, either in fact or in law,

which has supervened since the judgment was

entered,” so long as it “may affect the result.” Id. at

607. In Great Northern Railway Co. v. Sunburst Oil

& Refining Co., 287 U.S. 358 (1932), the Court

likewise explained that the general rule that a party

must raise a claim in district court to avoid forfeiture

on appeal does not apply where an intervening

decision “suppl[ies] a new and unexpected basis for a

claim by the defeated party of the denial of a federal

right.” Id. at 367 (citing cases).3

Secondary sources at the time Rule 52 was

promulgated were in accord. One 1939 text stated

that appellate courts could review claims not raised

below, without applying the strictures of plain error,

where the claims rested on law that “only ar[o]se

after the case ha[d] come to the appellate court.” 1

Lester Bernardt Orfield, Criminal Appeals in

America 96 (1939). A law review article published

after Rule 52 was adopted confirmed the point. The

article explained that “appealing parties are

ordinarily deemed to have waived any contentions as

to fact or law not presented before the first tribunal

having jurisdiction to hear them.” Federal Procedure:

Intervening Change in Law and the Waiver of

Constitutional Claims, 66 Colum. L. Rev. 386, 386

(1966). But where “an intervening decision of the

Supreme Court has enunciated a fundamental

change in constitutional law, thereby creating a

Although Great Northern Railway is a civil case, the

Advisory Committee Notes make clear that the rules governing

objections and appellate review were intended to “be the same

in civil and criminal cases.” Fed. R. Crim. P. 51, Advisory

Comm. Notes (1944); see also Fed. R. Crim. P. 52, Advisory

Comm. Notes (1944) (Rule 52 “similar” to preexisting Federal

Rule of Civil Procedure 61).

defense not previously thought available and thus not

argued below, an appealing party may usually assert

the newly-proclaimed right for the first time on

appeal” without having it treated as “waived.” Id.4

2. The broader structure of the Federal Rules of

Criminal Procedure confirms that plain-error review

should not apply where uniform precedent foreclosed

the claim in the district court.

a. Rule 2 instructs that the Rules “are to be

interpreted to provide for the just determination of

every criminal proceeding, to secure simplicity in

procedure and fairness in administration, and to

eliminate unjustifiable expense and delay.” Fed. R.

Crim. P. 2. Each of these directives renders the plainerror standard inappropriate in the setting of this

case.

i. Subjecting claims like this one to the ordinary

harmless-error framework is necessary “to secure

simplicity in procedure” and “eliminate unwarranted

In a few other decisions before and after Rule 52(b)’s

codification, this Court and others treated futility in cases like

this as an application of, rather than an exception to, the plainerror doctrine. See Silber v. United States, 370 U.S. 717, 717-18

(1962) (per curiam); Hormel v. Helvering, 312 U.S. 552, 557-60

(1941); Gros v. United States, 136 F.2d 878, 880-81 (9th Cir.

1943). It would make no material difference here to

conceptualize futility that way instead. In the parlance of this

Court’s modern case law, declining to grant relief because a

defendant failed to offer a pointless objection would “seriously

affect the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993)

(internal quotation marks omitted); see Hormel, 312 U.S. at 560

(denying relief in this situation “would defeat rather than

promote the ends of justice”).

expense and delay.” Otherwise, defense counsel

would always be obligated to imagine every possible

change in constitutional and statutory law that has

the remotest chance of occurring over the next

several years. The resulting motions, objections, and

demands for evidentiary hearings would make every

stage of criminal prosecutions—from pretrial motion

practice to trial to sentencing—costlier and lengthier,

as defense counsel would need to insist on raising one

foreclosed claim after another. And all to no useful

end: District court judges would be unable to disobey

“settled law to the contrary.” United States v.

Baumgardner, 85 F.3d 1305, 1309 (8th Cir. 1996).

What’s more, such objections would not just

“imped[e] the proceeding and wast[e] judicial

resources.” Id. They would also dilute the ability of

judges to pay attention to defense objections that

might actually be meritorious.

ii. Applying Rule 52(a) here, rather than plainerror review, would also ensure fairer procedures and

produce more just outcomes. Courts “cannot expect a

defendant to foresee a new rule of law when we have

consistently rejected that rule.” Osborne v. State, 715

N.W.2d 436, 442 (Minn. 2006) (suspending state-law

plain-error

review

this

circumstance).

Consequently, “it would be unfair” to penalize a

defendant for failing “to object at trial where existing

law appears so clear as to foreclose any possibility of

success.” United States v. Washington, 12 F.3d 1128,

1139 (D.C. Cir. 1994). Instead, the ordinary rules

governing appellate review should apply in this

setting. That approach would ensure that defendants

whose cases are on direct review receive the benefit

of dramatic changes in the law, while still precluding

relief for those who cannot satisfy Rule 52(a).5

b. Declining to apply the plain-error rule in these

circumstances also accords with Rule 51—Rule 52’s

next-door neighbor. Rule 51 makes clear that

“exceptions” are not required. An “exception” is an

objection after a court has already rejected an

argument. In keeping with Rule 2, exceptions are not

required because they are “a mere formality, with no

reasonable likelihood of convincing the court to

change its mind on the issue.” Thornley v. Penton

Publ’g, Inc., 104 F.3d 26, 30 (2d Cir. 1997); see

Charles A. Wright et al., Fed. Practice & Procedure

§§ 841, 2472 (3d ed. 2002) (characterizing an

exception as an empty “ritual”).

Requiring an objection under the extreme

circumstances here would be no different from

requiring an exception. The objection would be a pure

formality, as the district court would be powerless to

grant any relief and would simply reject the claim out

of hand. Furthermore, unlike a scenario where there

is a circuit split or only a few courts have considered

the issue, the district court in the situation here

would almost certainly perceive the objection to be so

meritless that it would have no reason to consider

Recognizing an exception to plain-error review in these

circumstances would benefit the Government as well as criminal

defendants. See, e.g., United States v. Zeigler, 19 F.3d 486, 494

(10th Cir. 1994) (applying similar approach where Government

objected to defendant’s sentence for the first time on appeal

based on intervening Supreme Court decision that abrogated

circuit precedent).

alternative holdings or other adjustments to trial. In

short, if exceptions are unnecessary, the same should

be true for rote objections in the face of uniform

circuit precedent.

3. Background legal principles confirm that

plain-error review is inapplicable here.

a. This Court has long recognized that the law

does not require useless acts—a concept often called

lex non cogit ad inutilia. See, e.g., Ohio v. Roberts,

448 U.S. 56, 74 (1980); Cary v. Curtis, 44 U.S. 236,

246 (1845); Camberling v. McCall, 2 U.S. 280, 283

(1797). This rule “has been a fundamental tenet in

Anglo-American jurisprudence for centuries.” Brent

E. Newton, An Argument for Reviving the Actual

Futility Exception to the Supreme Court’s Procedural

Default Doctrine, 4 J. App. Prac. & Process 521, 52223 & n.8 (2002); see also, e.g., Herbert Broom, A

Selection of Legal Maxims 252 (7th ed. 1874) (“[T]he

law will not, in the language of the old reports,

enforce any one to do a thing which will be vain and

fruitless.” (citing cases)).

This Court has applied this principle in

numerous ways. For example, under the habeas

“cause” standard, a petitioner is not excused on

“futility” grounds for failing to object merely because

his claim “was unacceptable to [a] particular court at

[a] particular time.” Bousley v. United States, 523

U.S. 614, 623 (1998) (internal quotation marks and

citation omitted). But a petitioner’s failure to have

raised an objection in earlier proceedings is excused

when he faced a “longstanding and widespread” body

of adverse lower court decisions. Reed v. Ross, 468

U.S. 1, 10, 16-17 (1984) (citation omitted). A contrary

rule, the Court has explained, would “disrupt state-

court proceedings by encouraging defense counsel to

[raise] any and all remotely plausible constitutional

claims that could, some day, gain recognition.” Id. at

16.6

More generally, this Court routinely entertains

arguments to overrule its own cases when petitioners

did not press such arguments below. See, e.g.,

Montejo v. Louisiana, 556 U.S. 778 (2009); Crawford

v. Washington, 541 U.S. 36 (2004); Hudson v. United

States, 522 U.S. 93 (1997); Solorio v. United States,

483 U.S. 435 (1987). The Court does not appear to

have explained why it considers such arguments

outside of the strictures of plain-error review. But its

practice seems to be a tacit recognition that raising

such claims below would have been futile.

This same principle exists in the context of

administrative exhaustion. Plaintiffs in federal court

need not have made pressed claims before agencies

where “any attempt[s] to persuade” the agencies

“would [have been] futile.” Bethesda Hosp. Ass’n v.

Bowen, 485 U.S. 399, 404-05 (1988).

b. Applying Rule 52(a) rule here also comports

with Sixth Amendment jurisprudence. Under current

law, defense counsel is not constitutionally deficient

for failing “to pursue every claim or defense,

The Government responds that Reed is not comparable

because a habeas petitioner may not assert an unpreserved

claim unless he also demonstrates “prejudice.” U.S. Br. 26-27.

But a prejudice requirement exists here as well. As noted above

and below, if Rule 52(b)’s plain-error standard does not apply,

then Rule 52(a)’s “affect[ed] substantial rights” test still

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

regardless of its merit, viability, or realistic chance

for success.” Knowles v. Mirzayance, 556 U.S. 111,

123 (2009); see United States v. Cronic, 466 U.S. 648,

656 n.19 (1984). The federal courts of appeals thus

hold that counsel is not ineffective for failing “to

anticipate a change in the law” or otherwise make

futile objections. Anderson v. United States, 762 F.3d

787, 794 (8th Cir. 2014).7

If, however, this Court were to hold that the

plain-error rule applies under the circumstances

here, it is hard to see how failing to file seemingly

hopeless motions that might someday prove

meritorious would be “reasonable” performance. In

order to discharge their constitutional duties (and

presumably ethical duties as well), trial counsel

would need to scour things like concurring and

dissenting opinions in appellate courts and law

reviews to discern any and all legal arguments that

might possibly draw favor in coming years.

4. Declining to apply plain-error review here also

accords with this Court’s post-Rule 52 precedent.

Plain-error review is designed to deal with error

so obvious that “the trial judge and prosecutor were

derelict in countenancing it, even absent the

defendant’s timely assistance in detecting it.” United

States v. Frady, 456 U.S. 152, 163 (1982). That

objective is completely inapposite here. Certainly

neither the judge nor prosecutor was derelict for

See also, e.g., Downs v. United States, 879 F.3d 688, 691

(6th Cir. 2018); United States v. Weston, 708 F.2d 302, 307 (7th

Cir. 1983); United States v. Brown, 663 F.2d 229, 231 (D.C. Cir.

1981).

conducting the plea colloquy as they did. In fact, if

Mr. Gary had objected that Section 922(g) contained

a knowledge-of-status element, the objection would

have occasioned nothing but a boilerplate denial

(probably from an irritated judge).

The Government nevertheless suggests that

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

requires the Court to treat Mr. Gary’s Rehaif claim as

forfeited. U.S. Br. 25. Johnson, however, did not

consider whether the plain-error doctrine applies

where uniform circuit precedent foreclosed the claim

in district court. Rather, the defendant in Johnson

failed to object on an issue on which the circuits had

split. See United States v. Gaudin, 515 U.S. 506, 527

(1995) (Rehnquist, C.J., concurring) (noting conflict).

Requiring an objection in district court where a

circuit split exists makes sense: Where there is a

circuit split, defendants have notice that the issue is

debatable and can infer that unfavorable law may

change in the near future. Even where the particular

court in which the defendant is being prosecuted

would be bound by circuit precedent to reject a claim,

objecting on a ground on which the circuits are split

puts the district court on notice that it may wish to

avoid the issue—or resolve it in a way that would not

create reversible error on appeal if this Court ends up

disagreeing with then-extant circuit precedent. But

where, as here, every single circuit has weighed in

and rejected the argument, it makes little sense to

saddle defendants with plain-error review if they do

not raise the issue in district court.

The Government also notes that the defendant in

Rehaif objected despite the fact that substantial

precedent cut against his claim. U.S. Br. 26. But

Rehaif was different from this case, too. There, the

Eleventh Circuit had not yet decided whether Section

922’s particular subsection dealing with immigration

status contained a mens rea element. So there was no

precedent “directly on point” even in the court in

which the defendant was litigating. See Appellant Br.

11-16, United States v. Rehaif, 2016 WL 7474621

(11th Cir. Dec. 27, 2016).

Finally, the Government provides one example of

a defendant in Texas objecting, a few months before

this Court decided Rehaif, that the prosecution

needed to prove knowledge of felon status. U.S. Br.

26. But one stray objection hardly demonstrates that

plain-error review is appropriate for everyone else. To

the contrary, that the Government scares up only a

single objection over the past several years confirms

that defendants like Mr. Gary did not believe the

argument was available to them.

5. The Government also references lower-court

case law. U.S. Br. 25-26. But to the extent there is

such relevant precedent, it supports Mr. Gary.

The Government says that “the courts of appeals

have consistently rejected arguments that plain-error

review is inapplicable where circuit precedent would

have foreclosed the unpreserved claim.” U.S. Br. 2526. But that does not fully describe the situation

here. This case concerns the scenario in which every

single court of appeals had rejected the issue. That is

a far more uncommon and dramatic scenario.

The Government also recognizes that lower

courts withhold plain-error review where an objection

would have been “futile.” Cert. Reply 8; see also U.S.

Br. 26. But it says that precedent is limited to

situations in which the defendant unsuccessfully

objected once and then failed to “reassert” the

argument. Id. That is incorrect.

Courts of appeals have applied the futility

concept—allowing defendants to raise a new

argument on appeal, without being subject to the

plain-error rule—“where the Supreme Court’s ruling

comes out of the blue and could not have been

anticipated” because there was “settled law to the

contrary” at the time of the district court proceedings.

United States v. Weiner, 3 F.3d 17, 24 n.5 (1st Cir.

1993); see also, e.g., United States v. Baumgardner,

85 F.3d 1305, 1309 (8th Cir. 1996); United States v.

Bell, 70 F.3d 495, 497 (7th Cir. 1995); United States

v. Indiviglio, 352 F.2d 276, 280 & n.7 (2d Cir. 1965)

(noting that courts withhold plain-error review

where, “under the law existing at the time of the

trial, objection would have been futile and when error

was asserted on review on the basis of a subsequent

appellate decision”); United States v. Byers, 740 F.2d

1104, 1132 n.53 (D.C. Cir. 1984) (Robinson, C.J.,

concurring in the judgment) (similar).

The D.C. Circuit calls this the “superveningdecision doctrine.” Washington, 12 F.3d at 1138-39.

Under the doctrine, a court of appeals may consider

issues not raised below, unencumbered by the plainerror rule, “where a supervening decision has

changed the law in appellant’s favor and the law was

so well-settled at the time of trial that any attempt to

challenge it would have appeared pointless.”

Washington, 12 F.3d at 1139; see also Byers, 740

F.2d at 1115-16 nn.6 & 11 (en banc) (Scalia, J.,

writing for a plurality). And the Second Circuit has

twice in recent years granted relief to criminal

defendants based on its “modified plain-error rule,”

which requires “the government, not the defendant”

to show “that the error . . . was harmless” where the

claim is based on a supervening decision. United

States v. Mahaffy, 693 F.3d 113, 136 (2d Cir. 2012)

(internal citation omitted) (alteration in original); see

United States v. Monteleone, 257 F.3d 210, 223 (2d

Cir. 2001).

To be sure, some courts of appeals have

questioned such approaches after Johnson. See, e.g.,

United States v. Martoma, 894 F.3d 64, 72 n.4 (2d

Cir. 2017); United States v. Perkins, 161 F.3d 66, 7273 (D.C. Cir. 1998); U.S. Br. 26 (citing cases). But as

just explained, Johnson is distinguishable. See supra

at 17. In any event, that the courts of appeals long

took the approach Mr. Gary advocates shows that it

is both consistent with the concerns motivating plainerror review and workable in the federal system.

The practice of several states confirms as much.

California, for instance, has a plain-error rule much

like Rule 52(b), which allows an appellate court to

review unpreserved claims if the alleged error

affected “the substantial rights of the defendant.”

Cal. Penal Code § 1259. Yet California recognizes

that, where an intervening decision changed the law

“so unforeseeably that it is unreasonable to expect

trial counsel to have anticipated the change,” an

appellate court may review the claim under the

ordinary standard of review, even if the claim was

not raised in trial court. People v. Black, 161 P.3d

1130, 1136-37 (Cal. 2007). Similarly, Minnesota’s

plain-error rule allows an appellate court to consider

“[p]lain error affecting a substantial right,” “even if it

was not brought to the trial court’s attention.” Minn.

R. Crim. P. 31.02. Yet Minnesota courts do not apply

this rule to new claims on appeal where the relevant

“case law had consistently rejected” the claim at the

time of trial court proceedings. Osborne, 715 N.W.2d

at 441-42; see also State v. Goodrich, 2006 WL 9534,

at *2 (Minn. Ct. App. Jan. 3, 2006) (citing cases).8

Moreover, the concerns that motivate the futility

exception that the Government does recognize—i.e.,

the rule that a defendant need not re-raise a claim

that his judge has already rejected, see U.S. Br. 26—

apply equally in this setting. Whether a claim is

futile because the judge has already rejected it or

because precedent across the circuits forecloses it, a

defendant “is not remiss for failing to bring his claim

of error to the court’s attention” because “[i]t would

be futile.” Henderson v. United States, 568 U.S. 266,

284 (2013) (Scalia, J., dissenting on other grounds);

see United States v. Uscanga-Mora, 562 F.3d 1289,

1294 (10th Cir. 2009) (Gorsuch, J.). A defendant

should be praised—not saddled with plain-error

review—for not wasting the court’s time with

numerous objections based on a distant hope that

this Court will reject an overwhelming body of

precedent before the case becomes final.

Many other states follow this basic approach. See, e.g.,

State v. Ledbetter, 881 A.2d 290, 307 (Conn. 2005), rev’d on

other grounds by State v. Harris, 191 A.3d 119 (Conn. 2018);

Smylie v. State, 823 N.E.2d 679, 690 n.16 (Ind. 2005); State v.

Nguyen, 133 P.3d 1259, 1270 (Kan. 2006); Unger v. State, 48

A.3d 242, 246-47 (Md. 2012); Commonwealth v. Mendes, 974

N.E.2d 606, 611 (Mass. 2012); State v. Carter, 114 P.3d 1001,

1004 (Mont. 2005); State v. Nelson, 196 A.2d 52, 57 (N.H. 1963);

State v. Burke, 522 A.2d 725, 731 (R.I. 1987); State v. Harris,

224 P.3d 830, 832 (Wash. Ct. App. 2010).

B. A Rehaif violation in conjunction with taking

a guilty plea is structural error.

An error necessarily “affect[s] substantial rights”

under Rule 52(a) if it is “structural.” See Neder v.

United States, 527 U.S. 1, 7 (1999). The Court has

identified three general categories of structural error:

(1) when “the right at issue is not designed to protect

the defendant from erroneous conviction but instead

protects some other interest”; (2) when the “effects of

the error are simply too hard to measure”; and (3)

when the “error always results in fundamental

unfairness.” Weaver v. Massachusetts, 137 S. Ct.

1899, 1908 (2017). The court of appeals here correctly

concluded that the omission of the knowledge-ofstatus element of Section 922(g) from a plea colloquy

independently satisfies all three tests. This Court’s

precedent relating to the omission of elements

confirms this analysis.

1. The constitutional error here meets all

three tests for structural error.

a. Personal autonomy. First and foremost, a

guilty plea taken in violation of Rehaif violates a

constitutional right that “protects some other

interest” aside from the risk of erroneous conviction,

Weaver, 137 S. Ct. at 1908—the defendant’s

autonomy interest in making the fundamental choice

whether to defend himself at trial.

i. As this Court has recognized, a defendant must

be the “master of his own defense.” Gannett Co. v.

DePasquale, 443 U.S. 368, 382 n.10 (1979). For good

reason: It is the defendant’s “individual liberty” that

is “at stake.” McCoy v. Louisiana, 138 S. Ct. 1500,

1505 (2018). Where, therefore, a constitutional right

safeguards a defendant’s ability “to make

fundamental choices about his own defense, id. at

1511, “harm is irrelevant” to the defendant’s

entitlement to relief, Weaver, 137 S. Ct. at 1908.

In McCoy, for instance, this Court held that “a

defendant has the right to insist that counsel refrain

from admitting guilt.” 138 S. Ct. at 1505. A violation

of this right requires reversal “without any need to

show prejudice,” id. at 1511—“even when counsel’s

experienced-based view is that confessing guilt offers

the defendant the best chance to avoid the death

penalty,” id. at 1505. Given “the fundamental legal

principle that a defendant must be allowed to make

his own choices about the proper way to protect his

own liberty,” a court’s acceptance of an admission of

guilt over the defendant’s objection inescapably

violates a defendant’s “autonomy” and thus

constitutes structural error. Id. at 1508, 1510-11

(quoting Weaver, 137 S. Ct. at 1908).

The self-representation doctrine recognized in

Faretta v. California, 422 U.S. 806 (1975), is cut from

the same cloth. “It is undeniable that in most

criminal prosecutions defendants could better defend

with counsel’s guidance than by their own unskilled

efforts.” Id. at 834. But a defendant “must be free

personally to decide whether in his particular case

counsel is to his advantage.” Id. Thus, depriving a

defendant of an opportunity to make a knowing and

voluntary decision about whether to represent

himself constitutes structural error. See Weaver, 137

S. Ct. at 1908; see also McKaskle v. Wiggins, 465

U.S. 168, 177 n.8 (1984) (case-specific prejudice

irrelevant with respect to Faretta violations). No

other rule would honor the vision of the Framers,

who “understood the inestimable worth of free

choice.” Faretta, 422 U.S. at 834-35.

ii. Mr. Gary’s right to autonomy was similarly

violated by the failure to inform him, before he

entered a guilty plea, of the mens rea element of

Section 922(g) that separates wrongful from

potentially innocent conduct.

Pleading guilty—relinquishing the panoply of

Fifth and Sixth Amendment protections and

accepting a term of imprisonment—is “a grave and

solemn act.” Brady v. United States, 397 U.S. 742,

748 (1970). It is also a highly personal one that

belongs only to the defendant. McCoy, 138 S. Ct. at

1508. A person who submits himself to a term of

imprisonment effectively gives up all freedom of

movement and self-determination. The standard

medium-security cell in a federal prison is 75 square

feet, or 8.5-by-8.5 feet.9 When a six-foot-tall prisoner

lies down in such a cell to sleep, he has eighteen

inches of space from his feet to the door and even less

between his head and the wall. The prisoner also is

likely to share a cell with at least one other person,

since overcrowding and triple-bunking are common.10

See Federal Bureau of Prisons, BOP Policies, Policy No.

1060.11 (Rated Capacities for Bureau Facilities), at 5,

https://www.bop.gov/PublicInfo/execute/policysearch?todo=query

# (last updated Oct. 30, 2017). Furthermore, single-occupancy

rooms in medium-security prisons may be “less than 70 square

feet.” Id.

See id. (cells of 70 square feet or more may be “rated for

double occupancy”); Federal Bureau of Prisons, Growing Inmate

Crowding Negatively Affects Inmates, Staff, and Infrastructure,

at 10-12. https://www.gao.gov/assets/650/ 648123.pdf.

What is more, “it is commonplace in prisons to have

toilets within double cells that have no partitions

between the toilet and rest of the cell,” rendering

even a prisoner’s most intimate bodily functions no

longer private.11

A person who pleads guilty to a federal crime

also largely relinquishes his personal liberty to

interact with loved ones and others in society.

Prisoners are separated from their families and

friends, sometimes by hundreds or thousands of

miles, and are often moved to different facilities with

little notice.12 Even when loved ones have the means

to visit, visiting times are constrained and physical

contact is strictly limited, or sometimes even barred.

Finally, a prisoner is under constant surveillance,

subject to “unannounced and random” searches of his

person or belongings “at any time by any staff

member.”13

Given all that is at stake, the decision to plead

guilty must be made “voluntarily, knowingly, and

intelligently.” Bradshaw v. Stumpf, 545 U.S. 175, 183

(2005). And “[w]here a defendant pleads guilty to a

See Johnson v. Conley, 2018 WL 4224076, at *7 (D.

Conn. Sept. 5, 2018); Nwani v. Molly, 2018 WL 2461987, at *9

(E.D. Pa. May 31, 2018).

See, e.g., Derek Gilna, Damage to South Carolina Prisons

Shifts Prisoners to Lewisburg, Pennsylvania, PRISON LEGAL

NEWS, Oct. 1, 2020, https://www.prisonlegalnews.org/news/2020/

oct/1/damage-south-carolina-prisons-shifts-prisoners-lewisburgpennsylvania/.

Federal Bureau of Prisons, Inmate Information

Handbook (“BOP Handbook”), at 15, https://www.bop.gov/

locations/institutions/spg/SPG_aohandbook.pdf.

crime without having been informed of the crime’s

elements,” the knowing and voluntary “standard is

not met and the plea is invalid.” Id. at 183; see also

McCarthy v. United States, 394 U.S. 459, 466 (1969)

(same). A guilty plea “is an admission of all the

elements of a formal criminal charge,” Boykin v.

Alabama, 395 U.S. 238, 243 n.5 (1969) (citation

omitted). If the defendant is unaware of one or more

elements of a charge, he cannot truly plead guilty to

the charge. See Gaudin, 515 U.S. at 511.

Here, the failure to inform Mr. Gary of the mens

rea element of Section 922(g) prevented him from

pleading guilty “voluntarily, knowingly, and

intelligently.” Bradshaw, 545 U.S. at 183.

Furthermore, this constitutional violation deprived

Mr. Gary of his autonomy interest in deciding

whether to submit to a term of imprisonment or

defend himself against the Government’s charge at

trial. When Mr. Gary made the decision to plead

guilty, he thought that he was declining to defend

himself against only the set of elements presented to

him. He was never made aware of all the

Government would have had to prove to convict him

of violating Section 922(g).

Put another way, the Government is now seeking

to convict Mr. Gary of a different crime than the one

to which he thought he pleaded guilty. Mr. Gary

thought he was pleading guilty to a strict-liability

offense—one that rendered it irrelevant whether he

knew he had a status forbidding him from possessing

a firearm. Yet the Government is now seeking to

convict him for possessing a gun while knowing he

was not allowed to do so. This is akin to procuring a

defendant’s plea after reciting the elements of

negligent homicide and then later asking an

appellate court to convict him of murder. If anything,

what the Government is seeking here is worse: It is

not even clear that the facts Mr. Gary admitted at his

plea colloquy constituted any federal crime at all. See

Rehaif, 139 S. Ct. at 2197.

iii. In a single paragraph, the Government tries

to brush aside the autonomy violation here. The

Government contends that the error here does not

implicate a defendant’s autonomy because the choice

to plead guilty “does not become someone else’s choice

simply because the colloquy was deficient.” U.S. Br.

33 (emphasis added). This contention is doubly

misguided.

First, a person’s autonomy can be violated

without giving his ability to decide something to

someone else. Take, for example, the “informed

consent” doctrine in medicine—a doctrine that

protects the autonomy interest in “bodily integrity.”

Cruzan v. Director, Mo. Dep’t of Health, 497 U.S.

261, 268-69 (1990). If a person consents to a medical

procedure without being advised of a major side

effect, it violates his autonomy just as surely as if

someone else agreed to the procedure for him. So too

here: It violates a defendant’s autonomy to negate his

own ability to choose knowingly and intelligently

whether to submit to a deprivation of liberty. And

here, Mr. Gary was deprived of the ability to decide—

based on a full understanding of the Section 922(g)

charge—whether to defend against the charge and

the deprivation of liberty a conviction would entail.

Second, even if transferring autonomy to another

party were required for structural error, that is

exactly what the Government is asking the Court to

do here. The Government is asking for a federal

judge, not Mr. Gary, to decide whether it would have

been sensible for him to defend against Section

922(g)’s knowledge-of-status element—the element

that separates “wrongful” from potentially innocent

conduct. Rehaif, 139 S. Ct. at 2197.

The Government resists this straightforward

logic, protesting that this Court has “drawn a clear

distinction between elements-based errors like the

one at issue here and errors that in fact infringe on

the defendant’s right to choose his own path.” U.S.

Br. 33. According to the Government, the only

autonomy interest a defendant has during a plea

colloquy is in choosing whether to plead guilty

“overall”—not whether to defend against any

particular element (or elements). Id. This argument

misses the mark. In McCoy, the only case the

Government cites for this supposedly “clear line,” the

majority reserved the question whether a violation of

the right to defend against “an element of a charged

offense” would be structural error. 138 S. Ct. at 1510.

The dissenters did not answer it either; they merely

observed that McCoy’s holding would be more

consequential if it extended to single elements. Id. at

1516-17 (Alito, J., dissenting).

Whatever the answer to the precise question

reserved in McCoy, there is no basis in the context of

guilty pleas for distinguishing “overall” offenses from

elements. A defendant cannot “plead guilty” to a

single element of a crime. A defendant either pleads

guilty to the Government’s charge—that is, “all the

elements of a formal criminal charge,” Boykin, 395

U.S. at 243 n.5 (emphasis added)—or he does not.

Accordingly, the only sensible way to understand the

current state of the record is that Mr. Gary never

pleaded guilty to violating Section 922(g).

Even if the knowledge-of-status issue could

somehow be separated from Mr. Gary’s plea, it would

not matter. The Government’s request for a federal

judge to decide whether it would have been in Mr.

Gary’s interest to defend against that element would

still infringe upon Mr. Gary’s “right to make the

fundamental choices about his own defense.” McCoy,

138 S. Ct. at 1511. A defendant surely has an

autonomy interest in deciding whether to challenge

an allegation that separates wrongful conduct—

punishable by years in prison—from potentially

innocent behavior. No constitutional system that

considers “respect for the individual” to be “the

lifeblood of the law,” id. at 1507, could posit

otherwise.

b. Inability to measure. The constitutional

violation here also 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)).

i. Mr. Gary had no notice that, to convict him of

violating Section 922(g), the Government had to

prove that he was aware of his felon status. As a

result, the question whether “the same” guilty plea

would have been rendered absent the constitutional

error cannot meaningfully be answered. Sullivan v.

Louisiana, 508 U.S. 275, 280 (1993).

The Government insists that harmlessness can

be measured in cases like this by looking to the

“government’s evidence” and “the defendant’s

admissions.” U.S. Br. 31 (internal quotation marks

and citation omitted). But relying on this information

would assume that the record would have been the

same had Mr. Gary been aware of the knowledge-ofstatus element. No such assumption is warranted. If

Mr. Gary had realized that he had to know of his

status that rendered him unable to from possess a

firearm, he may well have disputed the arguments

the Government makes now.

On a more general level, the Government

incorrectly assumes that a defendant’s decision

whether to plead guilty turns on nothing more than

an assessment of the strength of the prosecution’s

case. As this Court recently noted, however, “common

sense . . . recognizes that there is more to consider”

when deciding whether to plead guilty “than simply

the likelihood of success at trial.” Lee v. United

States, 137 S. Ct. 1958, 1966 (2017). Even if it is

“almost certain[]” that a jury would find him guilty,

an individual may still reasonably decide to insist

upon a trial. Id. An individual, for example, may

“wish to avoid, above all else, the opprobrium that

comes with admitting” that he committed the

particular crime with which he is charged. McCoy,

138 S. Ct. at 1508.

The desire that defendants sometimes have to

refuse to admit, in open court, that they knowingly

violated the law is particularly salient here. A

requirement that a defendant “understand the

wrongful nature of [his] act,” Rehaif, 139 S. Ct. at

2196, reflects the “belief in freedom of the human will

and a consequent ability and duty of the normal

individual to choose between good and evil.”

Morissette v. United States, 342 U.S. 246, 250 (1952);

see also 4 William Blackstone, Commentaries on the

Laws of England 21 (1769) (knowledge element

ensures that a defendant in fact possessed “a vicious

will”). Consequently, admitting that he possessed the

necessary mens rea here would have been a

concession that, when confronted with a choice

“between good and evil,” Morissette, 342 U.S. at 250,

Mr. Gary intentionally acted with a “culpable mental

state,” Rehaif, 139 S. Ct. at 2195. There are strong

reasons, deeply embedded in the human psyche and

cultural norms, why defendants may not want to

concede such behavior.14

Worse yet, the Government’s blithe treatment of

the mens rea element here would not in any way be

limited to Section 922(g). For example, federal law

criminalizes certain financial activities, such as

“structuring” cash payments, that are “not inevitably

nefarious.” Ratslaf v. United States, 510 U.S. 135,

144 (1994). Largely for that reason, such statutes

often require proof “that the defendant acted with

knowledge that his conduct was unlawful.” Id. at 137;

see also Cheek v. United States, 498 U.S. 192, 199200 (1991) (noting that “certain federal criminal tax

offenses” require that the defendant possess the

“specific intent to violate the law”). Imagine a

financial analyst who is charged with such an

What’s more, possession of a firearm is, as this Court has

held, a right that is generally protected by the Second

Amendment. See District of Columbia v. Heller, 554 U.S. 570,

626 (2008). A defendant may prefer not to admit that he knew

he was a member of a class of persons so “potentially

irresponsible and dangerous” that he could be denied a valued

constitutional right. Barrett v. United States, 423 U.S. 212, 218

(1976).

offense. He might approach the decision whether to

plead guilty very differently, without regard for the

evidence against him, depending on whether he

believed the crime had a robust mens rea element or

was a strict-liability offense. Among other

considerations, he might believe that pleading guilty

to knowingly violating the law in a regulated

industry would harm his future job prospects in a

way that pleading guilty to a strict liability offense

would not. Yet the Government’s theory would ignore

all of this, asking only whether strong evidence of

guilt existed. That cannot be right.

ii. The Government is also wrong that this

Court’s precedent sanctions its proposed approach.

Neder v. United States, 527 U.S. 1 (1999), stands at

most 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 it finds that the prosecution presented

overwhelming evidence regarding the element.

This principle has no purchase when applied to a

guilty plea. Evidence admitted at trial is subject to a

panoply of rules designed to guard against

unreliability. When the Government introduces

damning evidence at trial, the defendant also has “a

full opportunity to put on [responsive] evidence.”

Rose v. Clark, 478 U.S. 570, 579 (1986). And he often

has a strong incentive to do so, even when he does

not think that the evidence pertains directly to an

element. Juries are sometimes swayed by context,

atmospherics, and the perceived character of the

defendant. See, e.g., 2 F. Lee Bailey & Kenneth J.

Fishman, Criminal Trial Techniques § 44:2 (2020)

(“The more respectable and dignified your client

appears, the more credible he or she will be.”).

By contrast, during the guilty plea process, the

defendant has little opportunity to challenge any

assertions the Government makes. See supra at 30.

Indeed, once a defendant decides to plead guilty,

challenging the Government’s allegations can

jeopardize a sentence reduction for the “acceptance of

responsibility.” U.S.S.G. § 3E1.1; see also United

States v. Debowale, 498 F. Appx. 447, 447 (5th Cir.

2012) (denial of credit for acceptance of responsibility

after a defendant “told the court he had accepted

responsibility but disavowed knowledge of wrong

doing”). A “record” from a guilty plea proceeding thus

does not provide an acceptable platform from which

to conduct a harmless-error inquiry.

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

does not help the Government either. In Bousley, the

defendant pleaded guilty to using a firearm. Years

later, this Court defined “use” more narrowly than

the district court did during Bousley’s plea colloquy.

The Court then held that defendants like Bousley—

whose convictions had become final and were seeking

collateral relief—were eligible for such relief only if

they could establish that the errors in their plea

hearings “probably resulted in the conviction of one

who is actually innocent.” 523 U.S. at 623 (internal

quotation marks and citation omitted).

According to the Government, the fact that the

Court in Bousley directed a prejudice-type inquiry is

instructive here because this case, like Bousley,

involves a “misdescription” of an element during a

plea colloquy. U.S. Br. 21. But the Government’s

characterization of this case is inaccurate. The

scenario here—as all of the courts of appeals have

recognized—involves the total omission of an

element.15 And omitting an element is different from

the mere misdescription that occurred in Bousley.

Bousley was well-aware when he pleaded guilty that

“use” was an element of the charged offense, see 523

U.S. at 622, giving him notice that—however the

element might precisely be understood by a judge or

jury—the way he allegedly handled the gun

mattered. Here, by contrast, Mr. Gary was led to

understand that Section 922(g) contained no scienter

element at all respecting his status. He understood

the issue to be one of strict liability, with no potential

basis for dispute regarding his mental state. In this

situation, there is truly “no object, so to speak, upon

which harmless-error scrutiny can operate.” Sullivan,

508 U.S. at 280.

c. Fundamental unfairness. Finally, a guilty plea

taken in violation of Rehaif “always results in

fundamental unfairness.” Weaver, 137 S. Ct. at 1908.

Where, as here, the defendant has no notice of the

See, e.g., United States v. Balde, 943 F.3d 73, 97 (2d Cir.

2019) (discussing “the element announced in Rehaif ”); United

States v. Staggers, 961 F.3d 745, 754 (5th Cir.) (“We now

know . . . that knowledge of felon status is an element of a

§ 922(g)(1) offense.”), cert. denied, 141 S. Ct. 388 (2020); United

States v. Watson, 820 F. Appx. 397, 399 (6th Cir. 2020)

(discussing a “defective felon-in-possession indictment that

omitted Rehaif ’s knowledge-of-status element”); United

States v. Triggs, 963 F.3d 710, 712 (7th Cir. 2020) (Rehaif’s

“second knowledge element is new; no one was aware of it when

Triggs pleaded guilty”); United States v. Coleman, 961 F.3d

1024, 1027 (8th Cir. 2020) (“Rehaif held that the government

must also prove a fourth element.”).

critical mens rea element of the charged offense, no

resulting admission of guilt “may be regarded as

fundamentally fair.” Rose, 478 U.S. at 578; cf. Lafler

v. Cooper, 566 U.S. 156, 168-70 (2012) (concerns

regarding the “fairness and regularity” of the pleabargaining process extend beyond whether evidence

indicates that the defendant is “guilty”).

The Government responds that the “kind and

degree of harm” that Rehaif errors in the guilty plea

context create can “vary” depending on the facts and

record of each case. U.S. Br. 32. But that contention

takes an unduly limited view of the consequences

that inevitably flow from the constitutional violation

here. A guilty plea taken in violation of Rehaif does

not just create the potential for a factually unfounded

guilty plea. It also occasions a defendant’s surrender

of his liberty and conviction of a crime without his

ever understanding the true nature of the charge

against him. That is something our Constitution

cannot tolerate.

2. This Court’s precedent concerning

omitted elements during guilty pleas

confirms the error is structural.

Beyond arguing first principles, the Government

maintains that this Court’s precedent forecloses

categorizing the error here as structural. To the

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

holds that when a defendant pleads guilty without

being informed of a critical element of the offense,

vacatur is required without a showing of prejudice.

The Government’s other authorities do not establish

otherwise.

a. In Henderson, the defendant, Morgan, pleaded

guilty to second-degree murder and did not appeal.

But there was a fatal defect in his plea colloquy:

Morgan, like Mr. Gary, was never made “aware that

intent was an essential element of the crime.” 426

U.S. at 639. Confronted with this missing mens rea

element, this Court held that “the judgment of

conviction was entered without due process of law.”

Id. at 647.

With respect to the remedy for this fair-notice

violation, this Court assumed that “the prosecutor

had overwhelming evidence of guilt available.” Id. at

644. Indeed, New York then had a rule in seconddegree murder prosecutions that a defendant “must

be presumed to have intended the natural

consequence of his act,” id. at 646 n.17 (citation

omitted), seemingly confirming that Morgan’s guilt as

to the missing intent element “would almost

inevitably have been inferred” by a jury had he gone

to trial, id. at 645. No matter. This Court affirmed

the vacatur of Morgan’s conviction without requiring

any showing that informing him of the missing mens

rea element might have changed the outcome of his

case.

Henderson predates this Court’s use of the term

“structural error.” But concluding that an error

renders a conviction invalid without regard to the

strength of the prosecution’s case is the very

definition of structural error. Indeed, the Court has

described Henderson as holding that “[w]here a

defendant pleads guilty to a crime without having

been informed of the crime’s elements, . . . the plea is

invalid.” Bradshaw, 545 U.S. at 183 (emphasis

added); see also Class v. United States, 138 S. Ct.

798, 814 (2018) (Alito, J., dissenting) (explaining that

in Henderson, the Court “held that if a defendant

does not understand that he is admitting his conduct

satisfies each element of the crime, his guilty plea is

involuntary and unintelligent and therefore invalid.”

(emphasis altered)).

The

Government disputes this reading of

Henderson. It points (U.S. Br. 20) to the Court’s

statement at the end of the opinion that Morgan’s

“unusually low mental capacity . . . foreclose[d] the

conclusion that the error was harmless,” 426 U.S. at

647. But against the backdrop of the Court’s earlier

assumption that the evidence against Morgan was

“overwhelming,” that sentence is best understood as

suggesting that reversal might not have been

required if Morgan had known of the omitted

element’s existence, despite the judge’s failure to

advise him regarding it. See Bradshaw, 545 U.S. at

183 (the “constitutional prerequisites of a valid plea

may be satisfied where the record accurately reflects

that the nature of the charge and the elements of the

crime were explained to the defendant by his own,

competent counsel”). Justice White’s concurrence,

joined by three other Justices, supports this limited

understanding of the sentence. He explained that he

“join[ed] the opinion of the Court” in part because

“[i]t cannot be ‘harmless error’” to “permit a guilty

plea to be entered against a defendant” without his

being advised of an element of the offense.

Henderson, 426 U.S. at 650 (emphasis added).

At any rate, Henderson makes clear that the only

harmless-error argument the Government advances

here is off-limits. The Government argues that Mr.

Gary suffered no prejudice because evidence in the

presentence report shows that Mr. Gary “could not

have realistically hoped to persuade a jury” that he

lacked knowledge of felon status. U.S. Br. 24. Yet

Henderson squarely holds that “overwhelming

evidence of guilt” is not a permissible basis to uphold

a plea where the defendant was never advised of a

critical mens rea element. 426 U.S. at 644.

b. The Government also invokes United States v.

Dominguez Benitez, 542 U.S. 74 (2004). In that case,

the Court applied harmless-error analysis to the

district court’s failure to advise a defendant,

consistent with Rule 11(c)(3)(B), that he could not

“withdraw his guilty plea if the court did not accept

the Government’s [sentencing] recommendations.” Id.

at 79. The Government argues that the due process

violation here requires the same treatment because it

also occurred during a plea colloquy. U.S. Br. 18, 22.

But Dominguez Benitez itself says exactly the

opposite. The Court expressly “contrast[ed]” its

holding with cases involving “the constitutional

question whether a defendant’s guilty plea was

knowing and voluntary.” 542 U.S. at 84 n.10.

Convictions flowing from such errors, the Court

explained, cannot be “saved even by overwhelming

evidence that the defendant would have pleaded

guilty regardless.” Id. Mr. Gary’s guilty plea belongs

to precisely this class of constitutional errors.

The Government responds that the Dominguez

Benitez Court intended to suggest only that a

“completely uninformed plea,” as in Boykin v.

Alabama, 395 U.S. 238 (1969), is exempt from

harmless-error scrutiny. U.S. Br. 22. But the Court

was clear that Boykin merely provided one “example”

of a constitutional violation requiring automatic

vacatur of a plea. Dominguez Benitez, 542 U.S. at 84

n.10. A single-item list does not require “example[s].”

In short, the dividing line in the realm of fairnotice violations during plea colloquies between

errors requiring automatic reversal and those that

can be subjected to harmless-error-type inquiries is

not—as the Government would have it—between

failing to advise regarding any elements and omitting

just one element. Instead, the line is between

omissions and misdescriptions of elements—at least

where, as here, the omitted element “separate[s]

wrongful from innocent acts.” Rehaif, 139 S. Ct. at

2197. At least in that circumstance, the defendant

has a vital autonomy interest in deciding whether to

concede having knowingly engaged in wrongful

conduct. And in that situation, the decision whether

to submit to a multi-year prison sentence is so deeply

personal and fraught that it is impossible to know

whether any given defendant would have done so if

properly advised.

Any other conclusion would create vexing

administrability problems. If, as the Government

says, one omitted element can be subjected to

harmless-error scrutiny—even when it separates

wrongful from innocent conduct—what about two

elements? Or three? Surely at some point the

omission of some, but not all, of the elements renders

it impossible to say that “the defendant possesse[d]

an understanding of the law in relation to the facts,”

thus rendering the guilty plea automatically “void.”

McCarthy, 394 U.S. at 466. What if the offense

itself—such as assault or theft—has only two or three

elements and one is omitted? Would the omission of a

“crucial” element in that context, Rehaif, 139 S. Ct. at

2197, really be subject to harmless-error analysis?

The Government offers no answers to these

questions, and none are apparent.

II. Even if Rule 52(b)’s plain-error doctrine

applies, Mr. Gary need not make a case-specific

showing of prejudice.

Even if the plain-error doctrine applied here, the

result would be the same. In United States v. Olano,

507 U.S. 725 (1993), the Court established a four-part

framework for assessing claims of plain error. First,

there must “indeed be an error.” Id. at 732 (internal

quotation marks omitted). Second, the error must be

“plain,” or “obvious.” Id. at 734. Third, the error must

“affect [the] substantial rights” of the defendant. Id.

Finally, if these three criteria are met, then a court

may 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 concedes that the

first two prongs are satisfied. But it argues that the

third and fourth prongs are not automatically met

under the circumstances here. The Government is

incorrect.

A. Because the error here is structural, it

necessarily affects substantial rights.

Every court of appeals to consider the issue—

including in opinions written by then-Judge Breyer

and Judge Luttig—has held that structural errors

automatically satisfy prong three of the plain-error

test. See United States v. Colon-Pagan, 1 F.3d 80, 8182 (1st Cir. 1993) (Breyer, C.J.); United States v.

Ramirez-Castillo, 748 F.3d 205, 214 (4th Cir. 2014);

United States v. Barnett, 398 F.3d 516, 526-27 (6th

Cir. 2005); United States v. Becerra, 939 F.3d 995,

1005-06 (9th Cir. 2019); United States v. Wyles, 102

F.3d 1043, 1057 (10th Cir. 1996). The “plain

language” of Rule 52—which the Government

ignores—demonstrates that the lower court

consensus is correct. United States v. David, 83 F.3d

638, 647 (4th Cir. 1996) (Luttig, J.) (citation omitted).

1. Under Rule 52(a), “[a]ny error, defect,

irregularity, or variance that does not affect

substantial rights must be disregarded.” Fed. R.

Crim. P. 52(a) (emphasis added). Rule 52(b)—the

provision allowing appellate courts to notice plain

errors—uses “the same language.” Olano, 507 U.S. at

734. It provides that “a plain error that affects

substantial rights may be considered even though it

was not brought to the court’s attention.” Fed. R.

Crim. P. 52(b) (emphasis added). As a result, the

third prong of the plain-error test “requires the same

kind of inquiry” as the Court has established under

Rule 52(a) for determining whether an error is

susceptible to harmless-error scrutiny. Olano, 507

U.S. at 734. And, as noted above, an error is not

susceptible to harmless-error scrutiny if it is

“structural.” See supra at 22.

2. Instead of attending to Rule 52’s text, the

Government discusses Weaver v. Massachusetts, 137

S. Ct. 1899 (2017). According to the Government, that

case enables courts, in the context of plain-error

review, to require showings of prejudice to obtain

relief for structural errors. U.S. Br. 35. But Weaver is

inapposite.

Weaver was an ineffective-assistance-of-counsel

case on collateral review. 137 S. Ct. at 1905. Weaver

argued that his counsel’s failure to object at trial

when the courtroom was “closed to the public for two

days of the jury selection process” entitled him to

relief on ineffective-assistance grounds. Id. He

maintained that because violations of the right to a

public trial constitute structural error, he was

automatically entitled to relief based on his lawyer’s

deficient performance. The Court rejected that

argument, holding that Weaver still had to show he

suffered case-specific prejudice. Id.

This holding does not apply here. As the Court

stressed in Weaver, the “ultimate” test for ineffectiveassistance relief is whether the trial was

“fundamentally unfair”—a test that under Strickland

v. Washington, 466 U.S. 668 (1984), requires a casespecific showing of “prejudice.” Weaver, 137 S. Ct. at

1911. The Strickland test, however, does not govern

plain-error review. Rather, the test for plain error is

whether the error “affects substantial rights.” Fed. R.

Crim. P. 52(b). As explained above, structural errors

satisfy that test regardless of whether defendants are

able to make case-specific showings of prejudice. See

supra at 40-41.

The Government is likewise mistaken in

suggesting (U.S. Br. 21) that Bousley v. United

States, 523 U.S. 614 (1998), demands a case-specific

showing of prejudice under Rule 52(b). In Bousley,

the defendant was bringing a successive motion for

collateral relief. He thus had to show that he was

“actually innocent,” 523 U.S. at 622—a test that

necessitates a showing of prejudice. By contrast, the

question under plain-error review is whether the

error “affects substantial rights.” Once again:

structural errors necessarily satisfy that test.16

Because the question presented is limited to whether the

type of error here “automatically” entitles defendants to relief,

B. The due process violation here necessarily

had a serious effect on the fairness,

integrity or public reputation of judicial

proceedings.

Even without any case-specific showing of

prejudice, the constitutional violation here “seriously

affect[ed] the fairness, integrity or public reputation

of judicial proceedings.” Olano, 507 U.S. at 736

(citation omitted).

1. An error warrants relief under prong four

when its correction is important to “maintaining

public perception of fairness and integrity in the

justice system.” Rosales-Mirales v. United States, 138

S. Ct. 1897, 1907 (2018). That is necessarily the case

here. “The first and most universally recognized

requirement of due process”—well known to lawyers

and laypersons alike—is that every defendant must

receive “real notice of the true nature of the charge

against him.” Smith v. O’Grady, 312 U.S. 329, 334

(1941); see also United States v. Davis, 139 S. Ct.

2319, 2325 (2019) (fair notice is “the first essential” of

due process) (citation omitted). Indeed, “the

adversary process could not function effectively”

without “provid[ing] each party with a fair chance to

assemble and submit evidence to contradict or

U.S. Br. I, Mr. Gary does not address whether he could satisfy

prong three because prejudice should be “presumed” in his case

and that presumption is not rebutted, or because he can

somehow demonstrate prejudice. See Olano, 507 U.S. at 735. If

this Court were to reverse, those would be questions for the

court of appeals to address in the first instance on remand.

explain the opponent’s case.” Taylor v. Illinois, 484

U.S. 400, 410-11 (1988).

These core principles were transgressed here.

Mr. Gary lacked any notice of the “crucial” element of

the charged offense—the one separating “wrongful”

from possibly innocent conduct. Rehaif, 139 S. Ct. at

2197. Nor was he afforded any meaningful chance to

present or dispute evidence regarding the element.

Surely the public perception of the judicial system

would suffer if a plea under these circumstances were

allowed to stand.

The Government resists this conclusion, citing

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

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

neither of those cases involved guilty pleas, and the

defendants in both cases had opportunities to

challenge the prosecution’s evidence. In Johnson, the

trial court neglected to instruct the jury on an

element of the offense and instead found for itself

that the element was satisfied. 520 U.S. at 469. This

Court held that prong four of the Olano test was not

met, stressing that the element “was essentially

uncontroverted at trial.” Id. at 470. Similarly, in

Cotton, the trial court failed to instruct on an

element and instead found during sentencing

proceedings that the element was satisfied. 535 U.S.

at 628. This Court then relied on the “overwhelming”

evidence the prosecution submitted to conclude that

prong four was not met. Id. at 633.

The situation here is fundamentally different.

The whole point of classifying a constitutional error

as an autonomy violation is that it is inappropriate to

conduct a case-specific prejudice inquiry. See supra

at 22-24. The impossibility of dependably conducting

harmless-error scrutiny in this setting also, by

definition, forecloses a meaningful assessment of the

Government’s evidence. See id. at 29-32. Those

problems were not present following the jury trials in

Johnson or Cotton. See Neder v. United States, 527

U.S. 1, 8-15 (1999); Washington v. Recuenco, 548 U.S.

212, 218-22 (2006). But here, these problems preclude

conducting a harm-based inquiry under prong four.

Any other conclusion would allow the Government to

argue through the back door what it cannot argue

through the front.

Additionally, in Johnson, the defendant had the

incentive and an opportunity to present all the

evidence she could to defeat the materiality element.

520 U.S. at 470 n.2. In Cotton, too, the prosecution

introduced a significant amount of evidence at trial

concerning the omitted element, and the defendants

knew such evidence could affect their punishments.

Yet they “never argued” that the prosecution’s

evidence was inaccurate. 535 U.S. at 633 n.3. Mr.

Gary, by contrast, had no incentive or meaningful

opportunity to present any evidence in conjunction

with pleading guilty. See supra at 30, 33 It would

therefore impugn the integrity of the criminal justice

system to require him to show prejudice by pointing

to a record he had no reason to develop.

2. If the Court nevertheless concludes that a

showing of prejudice is required here under prong

four, it should stop there and remand.

The Government invites this Court to undertake

a fact-specific adjudication of Mr. Gary’s case. U.S.

Br. 39-40. But the question presented is simply

whether the Fourth Circuit correctly concluded that

Rehaif error “automatically” entitles a defendant to

relief. Id. at I; see also id. at 11 (asking this Court to

reverse the Fourth Circuit’s holding that the Rehaif

error here “‘requires automatic vacatur,’” “even when

the error had no practical effect”) (quoting Pet. App.

5a). The court of appeals has never considered

whether Mr. Gary could show case-specific prejudice.

Accordingly, if the error does not require

automatic vacatur, then the case should be sent back

to the court of appeals for an assessment of casespecific prejudice, along with other relevant

considerations under prong four. This is “a court of

review, not of first view.” Cutter v. Wilkinson, 544

U.S. 709, 718 n.7 (2005). And the Government does

not offer any reason for this Court to depart from its

“normal practice” of allowing lower courts, “in the

first instance,” to apply the law to the facts. Neder,

527 U.S. at 25; see also, e.g., Star Athletica, L.L.C. v.

Varsity Brands, Inc., 137 S. Ct. 1002, 1009 (2017).

Such a departure would be particularly inappropriate

here because, even as Mr. Gary is writing this brief,

it is not clear which of the documents the

Government relies on can be properly considered in

any assessment of prejudice. That remains to be

decided in Greer v. United States, No. 19-8709.

3. In any event, the Government’s case-specific

prejudice argument is flawed on multiple levels.

As an initial matter, the Government suggests

that Mr. Gary’s April 7, 2014 burglary conviction

shows that he must have known he had been

previously convicted of a felony because he was

“incarcerated for . . . 691 consecutive days” in

connection with that conviction. U.S. Br. 23. But all

of the 691 days Mr. Gary spent in jail were in pretrial

detention. J.A. 123-25. 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 (Nov. 2, 2018) (describing

South Carolina practices).17

The Government notes that when accepting

Gary’s guilty plea for the burglary offense, the court

imposed an eight-year sentence. U.S. Br. 5. But the

court suspended all of the time not already served. So

Mr. Gary—who did not complete high school and has

no legal training, J.A. 68—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” after pleading guilty was not the same as

“imprisonment.” 18 U.S.C. § 922(g)(1).

The Government also points to other prior

convictions listed in Mr. Gary’s Presentence Report

(PSR). U.S. Br. 5, 23-24. But the Government’s

reliance on those convictions is misguided in three

ways.

First, the Government has waived its ability to

rely on any prior conviction other than the 2014

burglary conviction. In the Fourth Circuit, the

Government briefly referenced “several [previous]

convictions for which Gary faced a maximum penalty

https://www.statehousereport.com/2018/11/02/newssome-say-its-time-to-reevaluate-efficacy-of-jail-bonds/.

in excess of one year.” Gov’t C.A. Supp. Br. 4. But

when asked directly at oral argument for its evidence

regarding Section 922(g)’s knowledge-of-status

element, the Government pinned its argument

exclusively on Mr. Gary’s 2014 burglary conviction.

The

Government’s “no

prejudice” argument

consequently must turn solely on that conviction.18

Second, the Government relies on parts of the

record compiled after Mr. Gary pleaded guilty—

namely, aspects of the PSR and Mr. Gary’s

sentencing memorandum. But for the reasons

elaborated in petitioner’s brief in Greer, the plainerror standard does not allow the Court to rely on

those materials. See Greer Petr. Br. at 8-19.

Third, the other convictions the Government

references do not show sufficient knowledge of felon

status anyway. The Government cites convictions for

third-degree burglary, committed when Mr. Gary was

only 17 years old, and for two second-degree

burglaries. U.S. Br. 5-6, 23-24. But Mr. Gary was

convicted for all three on the same day under South

Carolina’s Youthful Offender Act (“YOA”), and

purportedly received a sentence not to exceed five

When asked in the Fourth Circuit 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 26:2526:39. 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.” CA4 Oral Arg.

Recording 29:22-30:05.

years in custody, suspended on two years of

probation.19 When his probationary sentence was

converted, the PSR reflects that he was sentenced to

only four months. J.A. 116-18, 119-21.

Nor do Mr. Gary’s convictions in 2015 for seconddegree assault and battery prove he knew of his

prohibited status. His convictions were for violations

of S.C. Code § 16-3-600(D)(1). As classified in South

Carolina, these crimes are misdemeanors. S.C. Code

§ 16-3-600(D)(2); see also S.C. Code § 16-1-100(A) and

(B). To be sure, Section 922(g) is technically keyed to

“a crime punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 922(g)(1). But the

Section 922(g) offense is often called “felon-inpossession”—the phrase the Government itself uses

throughout its brief. See, e.g., U.S. Br. I, 2-4, 6, 14-15,

26, 35, 37, 39, 41. Accordingly, Mr. Gary might have

thought his prior conviction needed to be classified as

an actual felony.

At any rate, the 2015 charges led to two threeyear sentences and a three-year probation revocation

sentence, all of which ran concurrently. But Mr. Gary

served only eight months in custody following his

guilty plea to the offenses. J.A. 126-28. Even if one

Under South Carolina’s YOA, a defendant receives an

indeterminate sentence which cannot exceed six years or the

statutory maximum that would govern if an adult were

convicted. Craft v. State, 314 S.E.2d 330, 331 (S.C. 1984); S.C.

Code § 24-19-50. The court cannot impose a definite sentence, as

the Youthful Offender Division, part of the South Carolina

Department of Corrections, is responsible for executing the

YOA’s purpose of treatment and decides when release is

appropriate. Id.; S.C. Code §§ 24-19-20, 24-19-30, 24-19-60.

also accounts for time he may have spent in pretrial

detention (the PSR does not indicate 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.

Finally, the Government quotes Mr. Gary’s

statement in his sentencing memorandum that he

“was aware that he was not supposed to have a

weapon.” J.A. 68. But this statement says nothing

about why Mr. Gary thought he was not supposed to

possess a gun. He might simply have realized the gun

was not properly permitted, see S.C. Code § 16-2320(9), or that it was stolen property, see J.A. 15.

C. The Government’s “practical” concerns fall

flat.

The Government lastly argues that the burdens

the Fourth Circuit’s automatic vacatur rule would

impose outweigh the benefits. U.S. Br. 38-44. The

Government does not explain why it thinks that Rule

52(b) permits an assessment of “practical

consequences,” U.S. Br. 38, unmoored from the

strictures of Olano’s prongs three and four.

Regardless, the Government’s arguments are

unconvincing.

1. An automatic vacatur rule here would not

impose “substantial burdens” on the judicial system,

U.S. Br. 38.

According to the Government, “[t]he felon-inpossession offense is one of the most frequently

prosecuted federal crimes” and “plea-colloquy Rehaif

errors are at issue in more than 80 pending appeals”

in the Fourth Circuit. U.S. Br. 42. This count actually

includes several cases that involve jury verdicts or

requests for post-conviction relief.20 Such cases do not

implicate the question presented. Even so, 80 cases

would average out to about one case per district judge

within the Fourth Circuit, among hundreds of

criminal cases on a typical judge’s docket at any

given time.

What’s more, if the Government is right that

defendants in Mr. Gary’s position will “typically”

know they had prior felony convictions—and thus

“will rarely view the knowledge-of-status element as

a reason to go to trial,” U.S. Br. 39 (citation

omitted)—then such defendants will presumably

readily plead out again on remand.

The Government says that some defendants

“may hope that dimmed memories and stale or

misplaced evidence” may leave the Government at a

disadvantage on remand. Id. at 43. But the

Government offers no actual support for its

speculation. Nor would there be much basis for a

defendant to harbor such hope; almost all of the cases

raising the question presented were filed in the past

few years, between 2018 and 2020. The typical civil

case with such a filing date would not even have gone

Upon Mr. Gary’s request, the Government provided a list

of citations purportedly supporting its assertion in its brief. Mr.

Gary spot-checked the list and found that the following cases

involve jury verdicts: United States v. Barnes, No. 19-4259,

United States v. Sloan, No. 18-4782, United States v. Holden,

No. 18-4804, and United States v. Parks, No. 18-4369. The

following cases involve requests for collateral relief: United

States v. Harris, No. 19-6915, In re Jeffers, No. 19-359, and

James v. Andrews, No. 21-6159.

to trial by now. Finally, if there is the occasional case

in which a remand requires the Government and a

judge to exert some effort, that seems a small price to

pay for honoring a bedrock due process guarantee.

2. The Government also asserts that an

automatic vacatur rule would undermine the

interests in the “prompt resolution of criminal

charges” and the “conservation of judicial and

prosecutorial resources.” U.S. Br. 35. But if the

guiding light of the Court’s analysis here should be

the prompt and efficient resolution of criminal

charges, then the Government cannot possibly

prevail. Whatever benefits the justice system may

procure in the short run by subjecting errors like the

one here to plain-error review and requiring a

showing of prejudice would be dwarfed by the burden

the Government’s rule would impose: a constant

stream in all future criminal prosecutions of motions,

objections, and demands for evidentiary hearings at

every stage of litigation, all grounded in the faintest

hope that each precedent unfavorable to the defense

could conceivably be changed in the future. See supra

at 12.

In sum, ruling for the Government would steer

the judicial system away from a minor speedbump

and into grinding rush-hour traffic. There is no good

reason to chart that course.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,