Reply Brief — Rodney Lavalais, Petitioner v. United States

No. 20-5489

IN THE

Supreme Court of the United States

RODNEY LAVALAIS,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

CLAUDE J. KELLY

Federal Public Defender

Eastern District of Louisiana

CELIA C. RHOADS

Assistant Federal Public Defender

Counsel of Record

500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

Celia_Rhoads@fd.org

Counsel for Petitioner

TABLE OF CONTENTS

Table of Authorities ....................................................................................................... ii

Argument ....................................................................................................................... 1

I.

As the government acknowledges, Mr. Lavalais’s case does not

suffer from any vehicle defects that would impede this Court’s

review. ....................................................................................................... 2

II.

Mr. Lavalais’s petition is the best vehicle for review of this issue. ........ 4

III.

This Court should grant Mr. Lavalais’s petition or, in the

alternative, consolidate Mr. Lavalais’s case with United States v.

Gary and grant both petitions. ................................................................ 6

Conclusion ...................................................................................................................... 8

i

TABLE OF AUTHORITIES

Cases

Cutter v. Wilkinson, 544 U. S. 709 (2005) ..................................................................... 4

Rehaif v. United States, 139 S. Ct. 2191 (2019) .................................................... 1, 4, 6

United States v. Coleman, 961 F.3d 1024 (8th Cir. 2020) ............................................ 5

United States v. Hicks, 958 F.3d 399 (5th Cir. 2020) ................................................... 5

United States v. Lavalais, 960 F.3d 180 (5th Cir. 2020) .................................... passim

United States v. Trujuillo, 960 F.3d 1196 (10th Cir. 2020).......................................... 5

ii

ARGUMENT

The government concedes that there is a firmly rooted circuit split over the

issue raised in Mr. Lavalais’s petition—namely, the circumstances warranting

vacatur of felon-in-possession-of-a-firearm guilty pleas made without notice or

understanding of the knowledge-of-status element recognized in Rehaif v. United

States, 139 S. Ct. 2191 (2019). U.S. Br. 10, 12‒14. The government agrees that this

conflict affects a large number of defendants, whose convictions will remain uncertain

until this Court intervenes. Id. at 14‒15. Thus, the government rightfully urges this

Court to grant review this Term and agrees that Mr. Lavalais’s petition—which now

is fully briefed and ready to proceed—is a suitable vehicle for doing so. Id. at 15‒16.

Although the government expresses a preference for its own recently filed petition in

United States v. Gary, No. 20-444 (filed Oct. 5, 2020), it acknowledges that waiting

for certiorari-stage briefing in Gary to finish would delay resolution of this important

question and offers Mr. Lavalais’s case a reasonable course as well. U.S. Br. 10‒11,

15‒16; see also Pet. 24‒25, Gary, supra (No. 20-444).

In fact, Mr. Lavalais’s petition is a superior vehicle to Gary, a case that not

only lags behind this one, but also suffers from vehicle concerns that may interfere

with this Court’s review. Thus, this Court should grant Mr. Lavalais’s petition now

rather than wait on a less suitable vehicle, particularly in light of the government’s

agreement that going forward with Mr. Lavalais’s case instead is a reasonable option.

At the very least, this Court should grant both petitions and consolidate the two for

argument, as the government suggests as an alternative.

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I.

As the government acknowledges, Mr. Lavalais’s case does not

suffer from any vehicle defects that would impede this Court’s

review.

The government agrees that Mr. Lavalais’s petition is a suitable vehicle for

resolution of this critically important question, which now is the subject of numerous

requests for review, including by the government.1 U.S. Br. 10‒11, 15‒16. In fact, the

government is able to identify only two plausible vehicle-related issues to support its

preferred course of granting review in Gary—both of which the government

acknowledges are not true barriers to this Court’s review and would not preclude this

Court from alternatively granting review in this case instead. U.S. Br. 16‒18.

With respect to the government’s first point—the formatting of the question

presented as two questions, instead of one—this Court is free to reformulate a single

question that best addresses the specific issues the Court wishes to resolve, as the

government itself notes. U.S. Br. 17. The government is right that the disagreement

raised by Mr. Lavalais’s petition and others is a “holistic issue.” Id. At base, all parties

seek an articulation and explanation of the analysis applicable to the type of error

that arose in Mr. Lavalais’s case. Thus, Mr. Lavalais understands that the second

question presented in his petition is not necessarily an independent inquiry, but

1 As the government notes, there are a number of other pending petitions seeking

review of this issue. See U.S. Br. 11 n.1 (collecting petitions). As of this filing, the government

has responded in opposition to two of them, noting that both cases contain vehicle defects

that could interfere with this Court’s review. See U.S. Br. 12-13, Blackshire v. United States,

No. 19-8816; U.S. Br. 14-16, Stokeling v. United States, No. 20-5157. The government sought

and received extensions of the response deadlines in the remaining cases. See Rolle v. United

States, No. 20-5499; Ross v. United States, No. 20-5404; Hobbs v. United States, No. 20-171;

Sanchez-Rosado v. United States, No. 20-5453.

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instead is a subsidiary of and fairly encompassed by the broader, first question.

If this Court agrees with the government that bifurcation of the question in

Mr. Lavalais’s petition unnecessarily overcomplicates the issue, the entirety of the

inquiry easily can be articulated in a single question:

Whether a guilty plea that was not knowing and intelligently made due

to lack of notice, admission, and understanding of the essential elements

of the offense qualifies as structural error mandating automatic reversal

and, if not, what circumstances that error warrants vacatur under the

plain error standard.

This formulation not only is simpler than the government’s proposal, but also avoids

its shortcomings. The question proposed by the government presumes that this brand

of error qualifies as a mere plea colloquy defect, and it separately presumes the

correctness of the appellate court’s formulation and application of the review

standard below.2 In other words, the government’s question would appear to preclude

examination of the underlying standard itself and assume its correctness. Of course,

as the government acknowledges, this Court may ultimately determine that the

proper course is to remand Mr. Lavalais’s case in light of its newly articulated review

framework, rather than to apply that standard in the first instance. U.S. Br. 17. But

that does not mean—particularly at this juncture—that this Court should adopt a

question presented that might wholly preclude it from examining the review standard

2 See U.S. Br. I (defining the question presented as “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”).

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applied by the Fifth Circuit. As the government itself notes, that standard does not

just affect criminal defendants with Rehaif-based claims, but is broadly applicable

and impactful. See U.S. Br. 15.

Finally, as to the government’s second vehicle point, Mr. Lavalais agrees that

this Court’s review is not impeded by the government’s footnote about the fourth

element of plain error review in its appellate briefing below. See U.S. Br. 18.

II.

Mr. Lavalais’s petition is the best vehicle for review of this issue.

Mr. Lavalais’s case is not just suitable for this Court’s review; it is the best—

and fastest—vehicle for resolving this critical issue. Although the government may

have a slight preference for its own petition in Gary, certiorari-stage briefing in that

case has just begun and, as the government concedes, waiting on Gary to ripen would

delay resolution of this conflict. For that reason alone, this Court should simply grant

review in Mr. Lavalais’s case now rather than wait on Gary—a course that the

government suggests as a reasonable alternative option. U.S. Br. 10‒11, 15‒16; Pet.

24‒25, Gary, supra (20-444).

Even setting aside timing concerns, Gary is a less suitable vehicle for review

of this issue. Of course, this Court is “a court of review, not of first view,” and therefore

tends to avoid issues not first addressed by the Court of Appeals below. Cutter v.

Wilkinson, 544 U. S. 709, 718 n.7 (2005). Notably though, the Fourth Circuit’s opinion

in Gary was narrow and did not address the full scope of the question now presented

to this Court. Specifically, the opinion was limited to determining that Rehaif error

is structural and then engaging in plain error review in light of that determination.

See United States v. Gary, 954 F.3d 194, 202‒08 (4th Cir. 2020). The court did not

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decide what form of plain error review should apply in the event Rehaif error is not

structural. That makes the Fourth Circuit’s decision atypical among other circuits to

have addressed this issue.3

By contrast, the Fifth Circuit’s decision in Mr. Lavalais’s case presents two

holdings, both of which are well developed for this Court’s review, and the opinion is

more representative of appellate treatment of this issue. The Fifth Circuit, like the

Fourth Circuit, addressed the structural error question (rejecting that argument), but

also defined and applied an alternative plain error review framework—analysis

necessarily missing from Gary. See United States v. Lavalais, 960 F.3d 180, 186‒88

(5th Cir. 2020). If this Court grants the government’s petition in Gary and then

determines that Rehaif error does not qualify as structural—and thus must identify

an alternative review standard—it would do so in the first instance, unmoored from

an appellate decision below. Accordingly, unlike Gary, Mr. Lavalais’s case provides

the benefit of a fully developed appellate record and full appellate analysis.

Relatedly,

the

Fourth

Circuit’s

analysis

in

Gary

was

necessarily

underdeveloped because that opinion issued before other Courts of Appeals had

spoken on the structural error question and, therefore, the opinion did not address

other courts’ views on the issue. See Gary, 954 F.3d at 201. By contrast, the Fifth

Circuit’s decision came later, and the court’s opinion expressly addressed the Fourth

3 See, e.g., United States v. Coleman, 961 F.3d 1024 (8th Cir. 2020); United States v.

Trujuillo, 960 F.3d 1196 (10th Cir. 2020); see also United States v. Hicks, 958 F.3d 399 (5th

Cir. 2020).

5

Circuit’s analysis. Lavalais, 960 F.3d at 187‒88.

Finally, Mr. Lavalais’s petition has the additional benefit of providing a vehicle

that is not merely theoretical and an error that is not merely a technicality.

Mr. Lavalais is not among the class of petitioners for whom there is some form of

admission in the record of Rehaif’s mens rea element—i.e., knowledge of felony

status.4 For some petitioners, the question presented could become a mere academic

exercise in the event this Court determines that automatic reversal is inappropriate.

Not so for Mr. Lavalais and the group of defendants he exemplifies—for whom

knowledge of status is at least ambiguous and the question of prejudice is actually

complicated, depending on the contours of the standard. See Pet. 4. That is not to say

that this Court need apply its announced standard to the underlying facts in the first

instance—only that this Court’s determination of the review standard applicable to

Rehaif error actually matters in Mr. Lavalais’s case.

At the very least, as discussed below, the analytical and factual contrasts

between this case and Gary are benefits that may counsel in favor of consolidating

the two cases for review together.

III.

This Court should grant Mr. Lavalais’s petition or, in the

alternative, consolidate Mr. Lavalais’s case with United States v.

Gary and grant both petitions.

Because Mr. Lavalais’s case presents the best and fastest vehicle for

4 See, e.g., Pet. 4-5, Gary, supra (No. 20-444); U.S. Br. 3, Blackshire, supra (No. 19-

8816).

6

addressing this time-sensitive question, this Court should simply grant his petition

now. There is no reason to wait for completion of certiorari-stage briefing in Gary—

an inferior vehicle, with still yet-to-be-known defects, on an uncertain timeline.

At the very least, this Court should alternatively grant both petitions, as the

government suggests, and consolidate the cases for argument. Although consolidation

would not eliminate the unnecessary delay associated with waiting on final certiorari

briefing in Gary, it would at least moderate the various vehicle concerns with that

case. Moreover, consolidation would lessen the danger of one vehicle becoming

unsuitable before this Court’s determination of the merits. And, finally, consolidation

would provide the benefit of contrasting factual backgrounds and appellate court

reasoning to more concretely illustrate potential dispositions and applications.

Finally, if this Court does not intend to grant certiorari in Mr. Lavalais’s case

but does intend to review the issue he raises, he asks that his petition be held pending

resolution of this Court’s chosen vehicle, whether that vehicle is Gary or a different

case.

7

CONCLUSION

For the foregoing reasons, as well as those contained in the Petition for a Writ

of Certiorari, Mr. Lavalais’s Petition should be granted.

Respectfully submitted October 14, 2020,

/s/ Celia C. Rhoads

CELIA C. RHOADS

Assistant Federal Public Defender

Office of the Federal Public Defender

500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

celia_rhoads@fd.org

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