Memorandum — Dominique Mack, Petitioner v. United States

No. 20-5407

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IN THE SUPREME COURT OF THE UNITED STATES

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DOMINIQUE MACK, PETITIONER

v.

UNITED STATES OF AMERICA

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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MEMORANDUM FOR THE UNITED STATES

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JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

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IN THE SUPREME COURT OF THE UNITED STATES

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No. 20-5407

DOMINIQUE MACK, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

MEMORANDUM FOR THE UNITED STATES

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Petitioner contends (Pet. 21-26) that the court of appeals

erred in rejecting, based on an examination of the record as a

whole, his claim that Rehaif v. United States, 139 S. Ct. 2191

(2019), entitled him to vacatur of his conviction under 18 U.S.C.

922(g)(1) and 924(a)(2) following trial and sentencing. 1

For the

Other pending petitions for writs of certiorari raise

similar questions. See Greer v. United States, No. 19-8709 (filed

June 8, 2020); Reed v. United States, No. 19-8679 (filed June 8,

2020); Kachina v. United States, No. 20-5400 (filed June 11, 2020);

Pugh v. United States, No. 20-5037 (filed July 15, 2020); Smith v.

United States, No. 20-5558 (filed Aug. 24, 2020); Nickens v. United

States, No. 20-5645 (filed Sept. 4, 2020); Owens v. United States,

No. 20-5646 (filed Sept. 4, 2020); Heard v. United States, No. 201

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reasons explained on pages 8 through 12 of the government’s brief

in response to the petition for a writ of certiorari in Greer v.

United States, No. 19-8709 (Gov’t Greer Br.), that contention lacks

merit and does not warrant this Court’s review at this time.

Although courts have not adopted identical approaches to reviewing

plain error in the context of Rehaif claims following trials, no

conflict currently exists on that issue that requires this Court’s

immediate intervention.

See id. at 13-17. 2

The petition for a writ of certiorari should nevertheless be

held

pending

the

Court’s

consideration

of

the

government’s

petition in United States v. Gary, No. 20-444 (filed Oct. 5, 2020).

Gary presents the question whether a defendant who pleaded guilty

after a plea colloquy during which he was not informed of the

knowledge-of-status element discussed in Rehaif is automatically

entitled to relief on plain-error review, without regard to whether

the error affected the outcome of the proceedings.

Petitioner

errs in suggesting (Pet. 25-26) that the decision in this case

directly conflicts with the decision in Gary, as the Fourth Circuit

has itself treated the plea and trial contexts separately. Compare

United States v. Gary, 954 F.3d 194 (2020), with United States v.

Medley, 972 F.3d 399 (2020).

But although the guilty plea and

5742 (filed Sept. 8, 2020); Haynes v. United States, No. 20-5747

(filed Sept. 15, 2020); McGee v. United States, No. 20-5773 (filed

Sept. 17, 2020).

We have served petitioner with a copy of the government’s

brief in opposition in Greer.

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trial contexts are separate, resolution of the question presented

in Gary could potentially affect the resolution of the petition

here. The petition in this case should accordingly be held pending

the Court’s disposition in Gary and then disposed of as appropriate

in light of Gary.

See Gov’t Greer Br. at 17-18, supra (No. 19-

8709). 3

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

OCTOBER 2020

The government waives any further response to the

petition for a writ of certiorari unless this Court requests

otherwise.

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