Respondents Brief — Rodney Lavalais, Petitioner v. United States

Supreme Court briefOct 5, 2020

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No. 20-5489

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RODNEY LAVALAIS, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney General

SCOTT A.C. MEISLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTIONS PRESENTED

Whether petitioner, who pleaded guilty to possessing a

firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and

924(a)(2), was entitled to plain-error relief because the district

court did not advise him during the plea colloquy that one element

of that offense is knowledge of his status as a felon, where the

court of appeals determined that he had failed to show that the

district court’s error affected the outcome of the proceedings.

Whether the district court correctly applied a two-level

enhancement for possession of a stolen firearm under Sentencing

Guidelines § 2K2.1(b)(4)(A) (2016).

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (E.D. La.):

United States v. Lavalais, No. 17-cr-243 (Feb. 21, 2019)

United States Court of Appeals (5th Cir.):

United States v. Lavalais, No. 19-30161 (May 22, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-5489

RODNEY LAVALAIS, PETITIONER

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-12) is

reported at 960 F.3d 180.

JURISDICTION

The judgment of the court of appeals was entered on May 22,

2020.

20,

The petition for a writ of certiorari was filed on August

2020.

The

jurisdiction

this

Court

invoked

under

28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court

for the Eastern District of Louisiana, petitioner was convicted on

one count of possessing a firearm as a felon, in violation of 18

U.S.C. 922(g)(1) and 924(a)(2).

Judgment 1.

The district court

sentenced petitioner to 105 months of imprisonment, to be followed

by three years of supervised release.

appeals affirmed.

Pet. App. 5.

The court of

Id. at 1-12.

In November 2016, police in Kenner, Louisiana, conducted

a sting operation targeting illegal escort services operating at

local hotels.

C.A. ROA 36.

Police arranged for an undercover

officer to meet an escort named Chyna at a hotel.

Ibid.

The

officer met Chyna, identified her as an escort, and gave her $300

for her services.

Pet. App. 2.

But before the police could arrest

Chyna, she fled with the money to an awaiting silver Ford Explorer.

Id. at 2-3.

Officers obtained the Explorer’s license plate number

as it left the scene.

Id. at 3.

They later identified it as a

rental from Avis and identified petitioner as the renter.

Ibid.

Police successfully arranged a second meeting with Chyna.

Pet. App. 3.

That time, they arrested both Chyna and petitioner,

who was serving as her driver.

Ibid.

Police then obtained a

warrant to search the car that petitioner was driving.

Near the

driver’s seat, they found a .40 caliber Glock pistol loaded with

one round in the chamber and 11 rounds in the magazine, as well as

a cellphone that contained a video of petitioner using a pistol

similar to the Glock at a shooting range.

C.A. ROA 36-37.

Officers later learned that the Glock had been purchased not

by petitioner but by a woman who was working with petitioner on

recording a music video.

Report (PSR) ¶ 13.

Pet. App. 3; Presentence Investigation

That woman had rented another car from Avis

and had allowed petitioner to drive the car after leaving some

personal items, including her Glock pistol, inside of it.

App. 3.

Pet.

Petitioner, however, never returned either the rental car

or the Glock to her.

Ibid.

Avis eventually located the missing

rental car at the address listed on petitioner’s driver’s license.

Ibid.

When Avis contacted the renter to inform her that her rental

car had been found, the renter sent an email asking if Avis had

also found the Glock and stating that, if not, then she would “have

to file a police report that it is missing.”

felon,

Petitioner was charged with possessing a firearm as a

violation

Indictment 1-2.

the

Ibid.

time

U.S.C.

922(g)(1)

and

924(a)(2).

The indictment alleged, among other things, that

that

petitioner

possessed

the

firearm,

had

previously been convicted of a crime punishable by more than one

year of imprisonment -- specifically, furnishing and exhibiting a

false, fictitious, and misrepresented identification in connection

with the acquisition of a firearm, in violation of 18 U.S.C.

922(a)(6)

and

924(a)(2).

C.A.

ROA

Petitioner

had

been

sentenced to 24 months of imprisonment for that offense and had

served more than one year in prison.

PSR ¶ 33 (petitioner

sentenced in April 2008 and released in September 2009).

In March 2018, petitioner pleaded guilty to the single charge

in the indictment without a plea agreement.

C.A. ROA 110-111.

Petitioner admitted in writing that he had possessed a firearm,

that the firearm traveled in and affected interstate commerce, and

that he had been convicted of a felony in federal court in 2008.

Pet. App. 3; C.A. ROA 35-38.

At the change-of-plea hearing, the

district court informed petitioner that if he proceeded to trial,

the government would need to prove that petitioner knowingly

possessed a firearm, that the firearm had traveled in or affected

interstate commerce, and that he had previously been convicted of

a crime punishable by a term of imprisonment greater than one year.

C.A. ROA 93.

Consistent with the courts of appeals’ uniform

interpretation of the felon-in-possession offense at that time,

the district court did not advise petitioner that the government

would also need to prove that he was aware that he was a felon

when he possessed the firearm.

See United States v. Schmitt, 748

F.2d 249, 252 (5th Cir. 1984) (holding that knowledge of status is

not an element of an offense under 18 U.S.C. 922(g) and 924(a)(2)),

cert. denied, 471 U.S. 1104 (1985), abrogated by Rehaif v. United

States, 139 S. Ct. 2191 (2019); see also Rehaif, 139 S. Ct. at

2195 (noting prior uniformity).

After petitioner acknowledged

that he understood the charge, the district court accepted the

plea.

C.A. ROA 110-111.

calculated

The Probation Office prepared a presentence report that

petitioner’s

total

offense

level

under

the

advisory Sentencing Guidelines. Pet. App. 4. The Probation Office

began with a base offense level of 14 under Sentencing Guidelines

§ 2K2.1(a)(6)(A)

and

then

applied

two-level

increase

under

Section 2K2.1(b)(4)(A) (2016) because the firearm was stolen, and

four-level

increase

under

Section

2K2.1(b)(6)(B)

because

petitioner allegedly used the gun while engaging in another felony

(commercial sex trafficking).

Pet. App. 4.

With a three-point

reduction for acceptance of responsibility and a criminal history

category of III, the Probation Office calculated an advisory

sentencing range of 30 to 37 months.

Ibid.

Both parties objected to the Probation Office’s calculations.

Petitioner

objected

the

proposed

two-

and

four-point

enhancements, while the government argued that the court should

apply a two-level increase for obstruction of justice.

The

government

argued

particular

that

Pet. App.

petitioner

had

attempted to obstruct the investigation when, a few weeks after

his arrest, he called Chyna from prison and persuaded her to submit

an affidavit in state proceedings representing that the gun found

in the car was hers.

C.A. ROA 173-178.

The government also urged

the district court to impose a sentence above the Guidelines range

on the ground that petitioner had continued to engage in repeated

criminal conduct since his arrest in this case.

C.A. ROA 69.

At the sentencing hearing, the district court agreed with the

government

that

the

two-point

warranted.

Sent. Tr. 9-15.

obstruction

enhancement

was

As to petitioner’s objections, it

sustained the objection to the four-point enhancement for using

the firearm in furtherance of another felony, but overruled the

objection to the two-point enhancement for possessing a stolen

firearm.

Id. at 3-9.

The court observed that both parties had

cited decisions that defined the word “stolen” for purposes of the

Guidelines

provision

reaching

“all

felonious

wrongful

takings with the intent to deprive the owner of the rights and

benefits of ownership, regardless of whether or not the theft

constitutes common-law larceny.”

Id. at 7.

And the court found

it “clear that [petitioner]” had the “requisite intent

* * *

deprive the owner of her firearm, even if not permanently.”

at 8.

Id.

The court observed that petitioner had taken “the firearm

from the owner’s rental car without her permission and never

returned it”; that the owner had denied giving petitioner the

firearm or knowing that he had it; and that rather than attempting

to return the firearm to the owner after his arrest, petitioner

had convinced Chyna “to inform court personnel that it belonged to

her, when he knew that it did not.”

Ibid.

After calculating a total offense level of 15 and a revised

criminal history category of V, the district court determined that

petitioner’s advisory Guidelines range was 37 to 46 months.

Tr. 15-16.

above

Sent.

The court then determined that a term of imprisonment

that

range

was

appropriate

because

the

range

underrepresented the seriousness of petitioner’s criminal history

and likelihood that he would reoffend.

Id. at 19-23.

The court

ultimately sentenced petitioner to 105 months of imprisonment, to

be followed by three years of supervised release.

Id. at 25.

The court of appeals affirmed.

Pet. App. 1-12.

The court of appeals first determined that petitioner

was not entitled to relief under this Court’s decision in Rehaif,

which

was

decided

after

the

district

court

had

accepted

petitioner’s plea but before petitioner filed his opening brief on

appeal.

See Pet. App. 1-3, 6-9.

In Rehaif, this Court concluded that the courts of appeals

had erred in their interpretation of the mens rea required to prove

unlawful firearm possession under 18 U.S.C. 922(g) and 924(a)(2).

Abrogating the precedent of every circuit, the Court held that the

government not only “must show that the defendant knew he possessed

a firearm,” but “also that he knew he had the relevant status” -e.g., that he was a felon -- “when he possessed it.”

139 S. Ct.

at 2194; see Pet. App. 6 (recognizing abrogation).

Petitioner

argued that, in light of Rehaif, his indictment was defective and

his guilty plea was not knowing and voluntary, because neither had

made reference to his knowledge of his status as a felon.

Pet.

C.A. Br. 20-32; Pet. C.A. Reply Br. 1-13.

The court of appeals observed that petitioner’s unpreserved

“challenge to the validity of the guilty plea” was reviewable only

“for plain error.”

Pet. App. 5.

The court explained that, to

prevail on plain-error review, petitioner bore the burden of

showing “(1) an error, (2) that is clear or obvious, and (3) that

affects [his] substantial rights,” and that, if he made that

showing, the court could “exercise its discretion to grant relief

if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Ibid. The court noted

the government’s concession that petitioner satisfied the first

two of those components because the “failure to inform [him] of

the knowledge element as required in Rehaif” was, by the time of

appeal, “an obvious error.”

Id. at 6. The court determined,

however, that petitioner could not satisfy either “the third [or]

fourth prongs of plain error review.”

Ibid.

The court of appeals found that petitioner had not established

the prejudice required to satisfy the third plain-error element

because he could not show “a reasonable probability that he would

not

have

pled

requirement.

guilty

had

known

of”

Rehaif’s

knowledge

Pet. App. 7 (quoting United States v. Hicks, 958

F.3d 399, 402 (5th Cir. 2020)). The court observed that petitioner

had twice admitted to his previous federal felony conviction; that

“the [presentence report] listed his prior felony offense and its

two-year sentence”; and that petitioner had not alleged either

that this “conviction was somehow new information” unknown to him

at the time of his offense “or that the absence of this information

in any way impacted his decision to plead guilty.”

Ibid.

And on

the fourth plain-error requirement, the court explained that the

error did “not remotely -- let alone seriously -- affect the

fairness,

integrity,

public

reputation

judicial

proceedings,” because it is not unfair to affirm a defendant’s

“‘conviction when the record contains substantial evidence that he

knew his felon status.’”

reaching

that

Id. at 8 (citation omitted).

result,

the

court

appeals

rejected

petitioner’s reliance on United States v. Gary, 954 F.3d 194

(2020), in which the Fourth Circuit held that a defendant need not

“demonstrate

error.”

narrow

prejudice”

Pet. App. 7.

categories”

because

“Rehaif

error

[i]s

structural

The court of appeals reviewed the “three

structural

errors

that

this

Court

has

recognized, and saw “no basis for fitting Rehaif error into any

of” them.

Id. at 7-8.

The court noted that the Fourth Circuit in

Gary understood Rehaif error to fall within, inter alia, the

category of errors whose “effects are too hard to measure.”

at 8.

Id.

The court of appeals observed, however, that “[i]f the

effects of Rehaif error are too hard to measure, it’s because it’s

almost always harmless -- because convicted felons typically know

they’re convicted felons.”

The

court

Ibid.

appeals

also

affirmed

the

two-level

enhancement under Sentencing Guidelines § 2K2.1(b)(4)(A) (2016)

for possessing a “stolen” firearm.

Pet. App. 9-10.

The court

joined other courts of appeals in defining “stolen” to require an

“intended deprivation of the rights and benefits of ownership of

the gun.”

Id. at 10.

And the court determined that the district

judge had “properly found

* * *

by a preponderance of the

evidence”

had

requisite

that

petitioner

the

intent,

because

petitioner “took the Glock from the car without permission,” “did

not let its true owner know of its whereabouts,” and, after his

arrest, “asked another person

owned the Glock.”

* * *

to falsely claim that she

Id. at 9-10.

DISCUSSION

The court of appeals correctly determined that petitioner is

not entitled to vacatur of his felon-in-possession conviction

because he cannot satisfy either the third or fourth prerequisites

for plain-error relief.

As petitioner observes (Pet. 10, 16-17),

however, the circuits are divided as to whether a defendant who

pleaded guilty to possessing a firearm as a felon, in violation of

18 U.S.C. 922(g)(1) and 924(a)(2), is automatically entitled to

plain-error relief if the district court failed to advise him that

one element of that offense is knowledge of his status as a felon.

That

conflict

warrants

the

Court’s

review

this

Term.

Contemporaneously with this brief, the government is filing a

petition for a writ of certiorari in United States v. Gary, No.

20-___ (Gary Pet.), seeking further review of that issue. Although

Gary presents the best vehicle for considering the issue, this

case would also be a suitable vehicle.

The Court should therefore

either hold the petition here for the petition in Gary and dispose

of it accordingly; grant the petition here on the first question

as formulated on page I of this brief (potentially without awaiting

the completion of certiorari-stage briefing in Gary); or grant

both cases and consolidate them for briefing and argument on the

merits. 1

Certiorari is not, however, warranted on any other issue

in this case.

For

the

reasons

stated

pages

the

government’s petition for a writ of certiorari in Gary, a defendant

who pleaded guilty to possessing a firearm as a felon in violation

of 18 U.S.C. 922(g)(1) and 924(a)(2) without being advised that

knowledge

status

element

that

offense

automatically entitled to relief on plain-error review.

not

Rather,

the defendant may obtain such relief only if he can make a casespecific showing on both the third and fourth prerequisites for

plain-error relief.

The court of appeals correctly denied plain-

error relief to petitioner, who cannot satisfy either of those

requirements.

A defendant is entitled to plain-error relief only if he can

show (1) “an error” (2) that is “clear or obvious, rather than

subject

substantial

reasonable

rights,”

and

dispute,”

(4)

that

(3)

that

“seriously

“affected

[his]

affect[ed]

the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Marcus, 560 U.S. 258, 262 (2010) (citation and

internal quotation marks omitted).

For a defendant who pleaded

guilty to a felon-in-possession offense without being advised that

The same issue is also presented by the petitions for

writs of certiorari in Rolle v. United States, No. 20-5499 (filed

Aug. 21, 2020); Ross v. United States, No. 20-5404 (filed Aug. 14,

2020); Hobbs v. United States, No. 20-171 (filed Aug. 13, 2020);

Sanchez-Rosado v. United States, No. 20-5453 (filed Aug. 6, 2020);

Stokeling v. United States, No. 20-5157 (filed July 9, 2020); and

Blackshire v. United States, No. 19-8816 (filed June 22, 2020).

conviction requires proof that he knew his felon status, this

Court’s decision in Rehaif v. United States, 139 S. Ct. 2191

(2019), suffices to establish the first two requirements, because

it shows an error that was clear or obvious at “the time of

appellate review.”

Henderson v. United States, 568 U.S. 266, 269

(2013).

As the court of appeals here correctly recognized, however,

a defendant who asserts such an error must still make case-specific

showings of prejudice and an effect on the fairness, integrity, or

public reputation of judicial proceedings.

To satisfy the third

element, the defendant must show a reasonable probability that he

would have proceeded to trial had he been so advised.

Pet. 9-18. 2

See Gary

And the fourth element is not satisfied where it is

evident that the defendant was in fact aware of his status as a

felon.

See id. at 18-21.

correctly

determined

(Pet.

Accordingly, the court of appeals

App.

1-2,

5-9)

that

petitioner’s

inability to show a reasonable probability that he would have

insisted on a trial, as well as petitioner’s actual imprisonment

for more than a year for a previous crime, foreclosed plain-error

relief here.

Although

the

decision

below

correct,

this

Court

should grant review this Term to address the circumstances in which

plain-error relief is warranted for a defendant who asserts Rehaif

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

petition for a writ of certiorari in Gary.

error in his plea colloquy.

As petitioner observes (Pet. 3-4, 16-

17), the courts of appeals are in conflict as to whether a

defendant in a Section 922(g) case is automatically entitled to

plain-error relief when the district court has not advised him of

the knowledge-of-status element during his plea colloquy, without

regard

whether

proceedings.

that

error

affected

See Gary Pet. 21-22.

the

outcome

the

That conflict requires this

Court’s intervention.

As petitioner observes (Pet. 10-11), the Fourth Circuit held

in United States v. Gary, 954 F.3d 194 (2020), that failure to

inform a defendant of the knowledge-of-status element articulated

in Rehaif is a structural constitutional error that automatically

entitles a defendant to relief under Federal Rule of Criminal

Procedure 52(b).

954 F.3d at 198, 202-208.

The Fourth Circuit

subsequently denied the government’s petition for rehearing en

banc, over a statement joined by five judges calling that view “so

incorrect and on an issue of such importance that” this “Court

should consider it promptly.”

United States v. Gary, 963 F.3d

420, 420 (4th Cir. 2020) (Wilkinson, J., joined by Niemeyer, Agee,

Quattlebaum,

and

Rushing,

rehearing en banc).

JJ.,

concurring

the

denial

The Fourth Circuit’s entrenched decision

conflicts with the decision below in this case, as well as with

the determination of every other circuit to consider the question.

See id. at 420 n.*.

Three courts of appeals -- the Fifth Circuit (in the decision

below), the Eighth Circuit, and the Tenth Circuit -- have expressly

rejected Gary’s structural-error holding in precedential opinions.

Pet. App. 1, 7-9 (following United States v. Hicks, 958 F.3d 399,

401-402 (5th Cir. 2020)); United States v. Coleman, 961 F.3d 1024,

1029 n.3 (8th Cir. 2020); United States v. Trujillo, 960 F.3d 1196,

1205-1207

(10th

Cir.

2020).

The

result

Gary

also

irreconcilable with decisions of at least five other courts of

appeals that have required defendants raising forfeited challenges

to their guilty pleas under Rehaif to make a case-specific showing

that the error affected the outcome of the proceedings. See United

States v. Burghardt, 939 F.3d 397, 403-405 (1st Cir. 2019), cert.

denied, 140 S. Ct. 2550 (2020); United States v. Balde, 943 F.3d

73, 97 (2d Cir. 2019); United States v. Hobbs, 953 F.3d 853, 857858 (6th Cir. 2020), petition for cert. pending, No. 20-171 (filed

Aug. 13, 2020); United States v. Williams, 946 F.3d 968, 973-975

(7th Cir. 2020); United States v. Bates, 960 F.3d 1278, 1296

(11th Cir. 2020); see also United States v. Sanabria-Robreno, 819

Fed. Appx. 80, 83-84 (3d Cir. 2020).

The circuit conflict concerns an important and recurring

issue that requires prompt resolution in this Court.

Even when

considered only in relation to claims based on Rehaif, the issue

affects convictions for one of the most frequently prosecuted

federal

offenses,

significant

defendant’s guilty plea.

number

which

rest

the

See Gary, 963 F.3d at 420 (Wilkinson,

J., concurring in the denial of rehearing en banc) (observing that

“[m]any, many cases await resolution of this question”); see also

Rehaif, 139 S. Ct. at 2212-2213 (Alito, J., dissenting); United

States Sentencing Commission, Quick Facts, Felon in Possession of

a Firearm (2019), https://www.ussc.gov/sites/default/files/pdf/

research-and-publications/quick-facts/Felon_In_Possession_FY19.pdf

(reporting

that

approximately

10%

cases

reported

the

Sentencing Commission in Fiscal Year 2019 involved convictions

under 18 U.S.C. 922(g)).

And beyond Rehaif-related errors, the

question has potential application to other circumstances in which

this Court, or a court of appeals, construes a federal criminal

statute in a manner that increases the proof required to satisfy

the elements of a given offense.

approach,

those

Under the Fourth Circuit’s

statutory-interpretation

decisions,

too,

may

presage automatic relief for any defendant who pleaded guilty and

whose

case

direct

defendant was prejudiced.

review,

irrespective

whether

the

Immediate review is warranted to avoid

that result, which creates a “profound schism with [this] Court’s

whole approach to error review and remediation,” and would add

“major burdens to our system” of justice.

Gary, 963 F.3d at 420,

424 (Wilkinson, J., concurring in the denial of rehearing en banc).

As noted above, the government is filing a petition for

a writ of certiorari in Gary contemporaneously with the submission

of this brief.

That case would be the best vehicle for this

Court’s review of the plain-error issue, but this case would also

suitable

vehicle

(and

would

allow

the

Court

grant

certiorari now without waiting for the certiorari-stage briefing

in Gary to conclude).

The decisions in both cases are precedential and directly

address the application of both the third and fourth prerequisites

for plain-error relief to a defendant who pleaded guilty without

being advised of the knowledge-of-status requirement of the felonin-possession offense.

202-208.

See Pet. App. 5-9; see Gary, 954 F.3d at

Gary has a more extended discussion of the issue, which

includes the views of Fourth Circuit judges who were not on the

panel but who addressed the issue in response to the government’s

rehearing petition.

See Gary, 954 F.3d at 202-208; Gary, 963 F.3d

at 420-424 (Wilkinson, J., concurring in the denial of rehearing

en banc).

But the decision below here expressly acknowledges Gary

and briefly explains its disagreement with the Fourth Circuit’s

reasoning and result.

See Pet. App. 8-9.

Granting review in

either case would thus put squarely before the Court a decision

that addresses all components of the plain-error inquiry in a

reasoned opinion.

Two factors suggest that Gary is a preferable vehicle, but

neither factor would preclude the Court from alternatively -- or

additionally -- granting review in this case.

First, if the Court

were to grant certiorari in this case, it would be necessary to

reformulate the question presented in the manner suggested at

p. I, supra.

The first two questions as presented in the petition

itself do not focus on the specific question, about advisement of

an offense element, that has divided the courts of appeals.

Pet. ii.

See

And the petition’s presentation of the issue in two

questions, rather than one, risks bifurcating a holistic issue -the circumstances (if any) in which Rehaif error warrants plainerror relief from a guilty plea.

Although

petitioner

would

separate

consideration

the

specific prejudice standard that should apply under the third

prerequisite of plain-error review, the only circuit conflict he

identifies is the overarching conflict about whether to conduct a

case-specific prejudice inquiry at all.

As far as the government

is aware, every circuit that applies a prejudice standard applies

the same standard that the court of appeals applied here -- namely,

the standard from United States v. Dominguez Benitez, 542 U.S. 74

(2004),

which

requires

defendant

show

“a

reasonable

probability that, but for the error claimed, the result of the

proceeding would have been different.”

Pet. App. 6 (quoting

Dominguez-Benitez, 542 U.S. at 81) (brackets omitted).

Petitioner

appears to disagree with that standard, but does not specifically

suggest another.

And while petitioner contends (Pet. 17-18) that

the decision below in actuality deviated from that standard, that

fact-bound contention does not warrant separate review.

It would

instead naturally be addressed by a decision of this Court that

affirms the decision below, reverses it, or vacates it and remands

for reconsideration under a different standard.

Second, in a footnote in its appellate brief below, the

government stated that “[s]hould [the court of appeals] determine

that the error affects [petitioner’s] substantial rights, the

government concedes in this case that the [court of appeals] may

remedy the error.”

Gov’t C.A. Br. 11 n.4.

That statement was not

a concession that the fourth requirement of plain-error review is

inapplicable; rather, it reflected that the specific arguments

made in the court of appeals about why petitioner’s substantial

rights

were

not

affected

were

closely

tied

the

considerations that would be relevant in assessing that whether

the fourth requirement was met.

See id. at 9-11.

Accordingly,

rather than interpreting the government’s statement to concede

that the fourth requirement for plain-error review had been met,

the court of appeals correctly recognized that both the third and

fourth

requirements

precluded

relief.

The

statement

the

government’s brief below would therefore not impede the Court from

following the approach that it has taken in certain other plainerror cases, in which it has assumed an effect on substantial

rights and made clear that relief is in any event unwarranted under

the fourth requirement.

See United States v. Cotton, 535 U.S.

625, 633-634 (2002); Johnson v. United States, 520 U.S. 461, 468469

(1997).

Nevertheless,

the

extent

that

the

Court

concerned that the footnote might preclude the full range of

options in this case, that would be a reason to grant certiorari

in Gary instead.

If the Court does grant certiorari in Gary, it should hold

the petition here pending Gary’s resolution.

alternatively

The Court could

grant both petitions and consolidate the cases for

argument, or hold the petition in Gary pending its resolution of

this case.

But regardless of whether the Court grants review in

this case, in Gary, or in both cases, the Court should consider

and decide the question presented this Term in light of the large

number of cases potentially affected by such a decision.

Whatever course the Court follows on the plain-error

issue, it should deny certiorari on the third question presented

in the petition here.

With respect to that question, petitioner

contends (Pet. 18-21) that the court of appeals erred in affirming

the imposition of a two-level enhancement for possession of a

“stolen”

firearm

(2016).

That contention, which concerns only the application of

the

advisory

under

Sentencing

Guidelines,

Guidelines

does

not

§ 2K2.1(b)(4)(A)

warrant

further

review.

As an initial matter, this Court ordinarily leaves issues of

Sentencing Guidelines application in the hands of the Sentencing

Commission, which is charged with “periodically review[ing] the

work of the courts” and making “whatever clarifying revisions to

the

Guidelines

conflicting

judicial

decisions

might

Braxton v. United States, 500 U.S. 344, 348 (1991).

suggest.”

Given that

the Sentencing Commission can amend the Guidelines to eliminate a

conflict or correct an error, this Court ordinarily does not review

decisions interpreting the Guidelines.

See ibid.

Adherence to

that principle is particularly appropriate in this case, where

petitioner does not assert that the decision below conflicts with

any decision of this Court or another court of appeals.

See Pet.

19-20.

any

event,

petitioner’s

contention

lacks

merit.

Sentencing Guidelines § 2K2.1(b)(4)(A) (2016) provides for a twolevel enhancement in felon-in-possession prosecutions where the

gun that the defendant possessed was “stolen.”

The Guidelines do

not define the word “stolen.” In analogous circumstances in United

States v. Turley, 352 U.S. 407 (1957), which addressed the term in

the context of the National Motor Vehicle Theft Act, 18 U.S.C.

2312, this Court recognized that the word “has no accepted commonlaw meaning” and must be given “the meaning consistent with the

context in which it appears.”

Turley, 352 U.S. at 411, 413.

Turley accordingly rejected a narrow construction of the term,

instead defining it to reach “all felonious takings of motor

vehicles with intent to deprive the owner of the rights and

benefits of ownership, regardless of whether or not the theft

constitutes common-law larceny.”

Id. at 417.

Relying on Turley, as well as the basic rationale underlying

the

stolen-firearm

recognized

that

2K2.1(b)(4)(A)

enhancement,

“stolen”

should

the

within

similarly

circuits

the

have

meaning

defined

uniformly

Section

“include[]

all

felonious or wrongful takings with the intent to deprive the owner

of the rights and benefits of ownership, regardless of whether or

not the theft constitutes common-law larceny.”

United States v.

Bates, 584 F.3d 1105, 1109 (8th Cir. 2009); accord Pet. App. 9;

United States v. Colby, 882 F.3d 267, 272 (1st Cir.), cert. denied,

138 S. Ct. 2664 (2018); United States v. Jackson, 401 F.3d 747,

749-750 (6th Cir. 2005).

And the courts below in this case

correctly determined that petitioner possessed a “stolen” firearm

under that definition.

Pet. App. 9; Sent. Tr. 5-9.

Petitioner

took the gun from the owner’s car without permission; used it for

at least a month; did not alert the owner to its whereabouts at

any point, prompting the owner to write to the rental car company

out of concern that the “gun had been stolen” from the car that

she had rented; and urged someone (Chyna) other than the rightful

owner to claim the gun.

Petitioner’s

Pet. App. 9; Sent. Tr. 8.

challenges

determination lack merit.

the

lower

courts’

fact-bound

He suggests (Pet. 19) that it was not

enough for the district court to find an intent to deprive the gun

owner of the benefits of ownership, see Pet. App. 9-10, because

some authorities define theft to require an intent to deprive

permanently or for a lengthy period.

Even putting aside that

petitioner withheld the gun from its owner for at least a month,

see PSR ¶¶ 7-11, other relevant sources do not “suggest that a

permanent

deprivation

property is ‘stolen.’”

required

order

Jackson, 401 F.3d at 750.

conclude

that

Petitioner also

asserts (Pet. 20) that the term “stolen” is sufficiently ambiguous

that a more demanding intent standard should be required under the

rule of lenity.

But it is questionable whether the rule of lenity

applies to a Guidelines provision such as Section 2K2.1(b)(4)(A),

given this Court’s holding that the vagueness doctrine -- which

bears important similarities to the rule of lenity -- does not

apply to the advisory Guidelines.

See Beckles v. United States,

137 S. Ct. 886, 890 (2017); see also United States v. Gordon, 852

F.3d 126, 130 n.4 (1st Cir.), cert. denied, 138 S. Ct. 256 (2017).

And even if it did, the word “stolen” does not suffer from the

type of “grievous ambiguity” needed to trigger the rule, United

States v. Castleman, 572 U.S. 157, 173 (2014) (citation omitted),

as demonstrated by the lower court decisions interpreting that

term uniformly.

See pp. 20-21, supra; cf. Turley, 352 U.S. at

413-417 (finding a broad reading of “stolen” to be consistent with

the rule of lenity).

CONCLUSION

The petition for a writ of certiorari should be held pending

consideration of the government’s petition for a writ of certiorari

in United States v. Gary, No. 20-__, and then disposed of as

appropriate in light of the Court’s disposition in that case.

the alternative, the Court should grant the petition, limited to

the first question as formulated on page I of this brief.

The

petition should otherwise be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

BRIAN C. RABBITT

Acting Assistant Attorney General

SCOTT A.C. MEISLER

Attorney

OCTOBER 2020

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