Petition for Writ of Certiorari — Savannah Rolle, Petitioner v. United States

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

____________

SAVANNAH ROLLE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

____________

PETITION FOR WRIT OF CERTIORARI

____________

Donna Lee Elm

Federal Defender

Rosemary Cakmis

Senior Litigator

Conrad Kahn, Counsel of Record

Assistant Federal Defender

201 South Orange Avenue, Suite 300

Orlando, Florida 32801

Telephone: (407) 648-6338

Facsimile: (407) 648-6765

Email: Conrad_Kahn@fd.org

QUESTION PRESENTED

Whether a defendant’s guilty plea entered before Rehaif v. United States, 139

S. Ct. 2191 (2020), in which the defendant was not advised of the essential elements

of the crime with which he was charged, constitutes a due process violation requiring

vacatur of the guilty plea.

i

LIST OF PARTIES

Petitioner, Savannah Rolle, was the defendant in the district court and the

appellant in the court of appeals.

Respondent, the United States of America, was

the plaintiff in the district court and the appellee in the court of appeals.

ii

TABLE OF CONTENTS

Question Presented......................................................................................................... i

List of the Parties .......................................................................................................... ii

Table of Authorities ...................................................................................................... iv

Petition for a Writ of Certiorari .................................................................................... 1

Opinion and Order Below .............................................................................................. 1

Jurisdiction .................................................................................................................... 1

Relevant Constitutional and Statutory Provisions ...................................................... 1

Statement of the Case ................................................................................................... 2

Reasons for Granting the Writ ...................................................................................... 6

I.

The circuits are split on whether a constitutionally invalid guilty

plea in light of Rehaif is reversible per se ................................................. 6

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

Appendices

Eleventh Circuit Opinion

Rolle v. United States, Case No. 19-10726 ......................................................... A

District Court’s Final Judgment

Rolle v. United States, Case No. 8:18-cr-350-T-23JSS ...................................... B

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Rehaif v. United States, 139 S. Ct. 2191 (2020).................................................. passim

United States v. Coleman, 961 F.3d 1024 (8th Cir. 2020) ............................................ 6

United States v. Gary, 954 F.3d 194 (4th Cir.), reh’g en banc denied, 963 F.3d

420 (4th Cir. 2020) ................................................................................................. 6, 7

United States v. Hicks, 958 F.3d 399 (5th Cir. 2020) ................................................... 6

United States v. Jackson, 120 F.3d 1226 (11th Cir. 1997) ........................................... 6

United States v. Lavalais, 960 F.3d 180 (5th Cir. 2020) .............................................. 6

United States v. Olano, 507 U.S. 725 (1993) ................................................................ 5

United States v. Ross, 807 F. App’x 984 (11th Cir. 2020), pet for cert. filed.,

No. 20-5404 (U.S. Aug. 14, 2020)............................................................................... 7

United States v. Stokeling, 798 F. App’x 443 (11th Cir. 2020), pet. for cert.

filed, No. 20-5157 (U.S. July 24, 2020) ...................................................................... 7

United States v. Trujillo, 960 F.3d 1196 (10th Cir. 2020) ............................................ 6

Constitutional and Statutory Provisions

U.S. Const. amend V...................................................................................................... 1

18 U.S.C. § 922(g) ...................................................................................................... 1, 3

18 U.S.C. § 924(a)(2) .................................................................................................. 2, 3

18 U.S.C. § 3553(a) ........................................................................................................ 5

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

28 U.S.C. § 1291 ............................................................................................................. 1

iv

PETITION FOR A WRIT OF CERTIORARI

Savannah Rolle respectfully petitions for a writ of certiorari to review the

judgment of the Eleventh Circuit.

OPINION AND ORDER BELOW

The Eleventh Circuit’s unpublished opinion is in Appendix A.

The district

court’s final judgment is in Appendix B.

JURISDICTION

The Middle District of Florida had original jurisdiction over Mr. Rolle’s

criminal case under 18 U.S.C. § 3231.

The Eleventh Circuit had jurisdiction to

review the district court’s final judgment under 28 U.S.C. § 1291, and on March 26,

2020, the Eleventh Circuit affirmed the district court’s final judgment.

Appendix A.

This Court may review the Eleventh Circuit’s judgment under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the U.S. Constitution provides, in relevant part:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of

a Grand Jury . . . ; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law.

Section 922(g) of Title 18 of the U.S. Code provides, in relevant part:

It shall be unlawful for any person–

(1)

who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one

year . . .

1

to . . . possess in or affecting commerce, any firearm or

ammunition.

Section 924(a)(2) of Title 18 provides:

Whoever knowingly violates subsection . . . (g) . . . of section

922 shall be fined as provided in this title, imprisoned not

more than 10 years, or both.

STATEMENT OF THE CASE

On the morning of June 26, 2018, in Plant City, Florida, Savannah Rolle was

sitting in the front passenger seat of a parked car. 1 A nearby officer with the Plant

City Police Department smelled marijuana coming from the vehicle’s passenger

compartment and approached the car.

Mr. Rolle got out of the car with a black

backpack and ran away. 2 He ran for several blocks, and through several yards, until

another officer captured him.

The officers found two small plastic baggies on Mr. Rolle—one in his front shirt

pocket that contained synthetic cannabis and one in his pants pocket that contained

2.6 grams of actual cannabis. 3 In the backpack, the officers found several empty

clear plastic baggies, a metal grinder with marijuana residue, a digital scale with

marijuana residue, an Amazon tablet, three cell phones, $112 in cash, and a handgun

1 The car was parked next to a closed business, and an unknown woman was in the

driver’s seat.

2 To be more specific, when Mr. Rolle got out of the car, he began to walk backwards

away from the officer. The officer said, “Savannah Rolle, don’t even think about

running.” But Mr. Rolle ran. And when he did, the officer yelled for him to stop.

Mr. Rolle, however, does not remember the officer telling him not to run or to stop.

3 Mr. Rolle told police he ran because he has “K2” on him.

2

holster with the “Punisher” logo on it. In Mr. Rolle’s flight path, the officers found a

fourth cell phone, another baggie containing synthetic cannabis, and Mr. Rolle’s

wallet.

Unbeknownst to Mr. Rolle or the officers, a concerned citizen captured part of

the flight on his home surveillance camera. In the video, Mr. Rolle is seen tossing a

handgun on to the citizen’s roof and the officer chasing Mr. Rolle come into view

seconds later.

The citizen called the PCPD later that same day, and the handgun

was retrieved from the roof. 4 The handgun—a Glock 17 9mm—had been reported

stolen, and the magazine in the gun could hold 17 rounds of ammunition. 5 The gun

also had a cloth “Punisher” logo around its grip, matching the logo on the holster in

Mr. Rolle’s backpack.

The government charged Mr. Rolle with possessing a gun as a felon, in

violation of §§ 922(g)(1) and 924(a)(2).

Count one (the only count) stated:

On or about June 26, 2018, in the Middle District of Florida, the

defendant,

SAVANNAH ROLLE,

having been previously convicted in any court of a crime punishable by

imprisonment for a term exceeding one year, including

1. Robbery, on or about June 5, 2005;

2. Grand Theft Motor Vehicle, on or about October 1, 2007;

3. Fleeing and Attempting to Elude, on or about September 7,

2010;

4 The citizen was at work when Mr. Rolle ran through his yard.

He learned about

the incident from a friend who called him at work and told him about the police

activity in his neighborhood earlier that morning.

5 The magazine was loaded with only 16 rounds.

3

4. Burglary of an Unoccupied Conveyance, on or about

September 7, 2010; and

5. Grant Theft Motor Vehicle¸ on or about September 7, 2010,

Did knowingly possess, in and affecting interstate and foreign

commerce, a firearm and ammunition, that is, a 9-millimeter Glock

pistol loaded with 16, 9-millimeter rounds of ammunition.

Mr. Rolle pled guilty without a plea agreement.

As to the elements of the

offense, the following colloquy occurred:

The District Court: Now I need to explain to you the essential

elements the Government would need to prove if your case went to trial.

And those are the following:

First, the Government would be required to prove that you knowingly

possessed a firearm or ammunition in or affecting interstate or foreign

commerce; and, second, before possessing the firearm or ammunition,

you had been convicted of a felony, which is a crime punishable by

imprisonment for more than one year.

Having said that, do you understand what the Government would be

required to prove if your case went to trial?

Mr. Rolle:

Yes, Your Honor.

The government then set forth a factual basis for the offense, including much of the

offense conduct discussed above. 6 Mr. Rolle, however, agreed only that he possessed

a firearm and ammunition that traveled in interstate commerce, and before doing so,

he had been convicted of a felony.

He then pled guilty as charged.

Mr. Rolle’s sentencing was on February 25, 2019.

After hearing Mr. Rolle’s

allocution and argument from the parties about the applicability of the 18 U.S.C.

6 The government’s factual basis also included that: (1) the firearm and ammunition

were examined and determined to have been manufactured outside Florida; and (2)

before possessing the gun and ammunition, Mr. Rolle had been convicted of the

felonies listed in the indictment.

4

§ 3553(a) factors, the district court imposed the statutory maximum sentence—120

months’ imprisonment and three years’ supervised release.

See Appendix B.

On appeal, Mr. Rolle argued that given this Court’s then-recent decision in

Rehaif v. United States, 139 S. Ct. 2191 (2019), his plea was constitutionally invalid

and violated Rule 11’s core concerns.

Therefore, the district court plainly erred in

accepting it.

Under plain-error review, Mr. Rolle had to show: (1) there was error: (2) the

error was plain; and (3) the error affected his substantial rights.

Olano, 507 U.S. 725, 732 (1993).

United States v.

If Mr. Rolle satisfies those three requirements, the

appellate court could remedy the error only if the error seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.

Id.

Mr. Rolle argued that when it comes to infirm guilty pleas such as his,

automatic reversal was required if he satisfied the first two prongs of plain-error

review, without the need to show how the error prejudiced him.

Circuit disagreed.

But the Eleventh

In affirming his conviction, the Eleventh Circuit found Mr. Rolle

satisfied the first two prongs of plain error review, but it found Mr. Rolle needed to

show the error affected his substantial right, which Mr. Rolle could not do.

Appendix A.

5

See

REASONS FOR GRANTING THE WRIT

I.

The circuits are split on whether a constitutionally invalid guilty plea

in light of Rehaif is reversible per se

Before Rehaif, the courts of appeals had uniformly held that the government

had to prove the defendant’s knowledge only as to his possession, not as to his status.

See, e.g., United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997); Rehaif, 139

S. Ct. at 2210 n.6 (Alito, Thomas, JJ., dissenting) (citing decisions, including

Jackson).

In guilty pleas entered before this Court’s decision in Rehaif, the lower

courts therefore did not advise the defendant of an additional, essential element of

the offense—knowledge of status.

Following Rehaif, the circuits are divided on

whether such guilty pleas are reversible per se.

The Fourth Circuit has held that

such guilty pleas violate due process and constitute “structural error” requiring

reversal.

See United States v. Gary, 954 F.3d 194, 200-08 (4th Cir.), reh’g en banc

denied, 963 F.3d 420 (4th Cir. 2020) (en banc).

Other circuits have disagreed,

acknowledging the circuit split that has resulted. 7

7 See, e.g., United States v. Lavalais, 960 F.3d 180, 184 (5th Cir. 2020) (“The circuits

are already split over how Rehaif claims should be analyzed for plain error. The

Fourth Circuit has held that Rehaif error is structural error, warranting reversal

even in the absence of evidence of prejudice. See United States v. Gary, 954 F.3d 194,

203 (4th Cir. 2020). But we have held the opposite—that defendants must show that

any error under Rehaif actually prejudiced the outcome. See United States v. Hicks,

958 F.3d 399 (5th Cir. 2020).”); United States v. Coleman, 961 F.3d 1024, 1029–30 &

n.3 (8th Cir. 2020) (“The circuit courts that have considered the issue are split, with

the Fifth, Sixth, and Tenth Circuits holding that a constitutionally invalid plea is not

structural error, while the Fourth Circuit holds otherwise”) (citations omitted);

United States v. Trujillo, 960 F.3d 1196, 1205 (10th Cir. 2020) (disagreeing with the

Fourth Circuit’s decision in Gary).

6

The Eleventh Circuit, including in Mr. Rolle’s case, has repeatedly affirmed

pre-Rehaif guilty pleas based on its determination that the error was harmless. 8

The Eleventh Circuit’s decision below thus conflicts with the Fourth Circuit’s decision

in Gary.

Indeed, had Mr. Rolle’s case been before the Fourth Circuit, his guilty plea

would have been vacated.

See Gary, 954 F.3d at 200–01.

The Fourth Circuit’s decision in Gary is binding precedent in that circuit, as

the Fourth Circuit denied the government’s petition for rehearing en banc.

United States v. Gary, 963 F.3d 420 (4th Cir. 2020).

See

Mr. Rolle therefore requests

this Court’s review of this important issue that has intractably divided the circuits.

Alternatively, Mr. Rolle asks that this Court hold his petition pending resolution of

the other petitions raising this issue. 9

8 See, e.g., United States v. Stokeling, 798 F. App’x 443, 446–47 (11th Cir. 2020), pet.

for cert. filed, No. 20-5157 (U.S. July 24, 2020); United States v. Ross, 807 F. App’x

984, 987–88 (11th Cir. 2020), pet for cert. filed., No. 20-5404 (U.S. Aug. 14, 2020).

9 See, e.g., Gary, 963 F.3d at 420 (Wilkinson, Niemeyer, Agee, Quattlebaum, Rushing,

JJ., concurring in the denial of rehearing en banc) (“I concur in the denial of rehearing

en banc for one reason and one reason only. The panel’s holding is so incorrect and

on an issue of such importance that I think the Supreme Court should consider it

promptly. Any en banc proceedings would only be a detour. Many, many cases

await the resolution of this question.”).

7

CONCLUSION

For the above reasons, Mr. Rolle respectfully requests that this Court grant

his petition.

Respectfully submitted,

James T. Skuthan

Acting Federal Defender

Rosemary Cakmis

Senior Litigator

/s/ Conrad Kahn

Conrad Kahn

Assistant Federal Defender Attorney

201 S. Orange Avenue, Suite 300

Orlando, FL 32801

Telephone 407-648-6338

Facsimile 407-648-6095

Email: Conrad_Kahn@fd.org

Counsel of Record for Petitioner

8