Memorandum — Virgil Nickens, Petitioner v. United States

No. 20-5645

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

VIRGIL NICKENS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

MEMORANDUM FOR THE UNITED STATES

_______________

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

_______________

No. 20-5645

VIRGIL NICKENS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

MEMORANDUM FOR THE UNITED STATES

_______________

Petitioner contends (Pet. 5-10) 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); Mack v.

United States, No. 20-5407 (filed Aug. 14, 2020); Smith v. United

States, No. 20-5558 (filed Aug. 24, 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. 2

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 question that requires this

Court’s immediate intervention.

As the government observed in Greer, see Gov’t Greer Br. at

15-17, the Fourth Circuit’s decision in United States v. Medley,

972 F.3d 399 (2020), appears to be at odds with the decision below

on the substantive question of whether to recognize forfeited

Rehaif errors even when the defendant’s criminal record and period

of incarceration demonstrate his awareness of his status as a

convicted felon at the time he possessed the firearm.

But it does

not,

of

at

least

explicitly,

foreclose

consideration

matters

outside the trial record when addressing forfeited Rehaif claims

under the plain-error standard.

Id. at 417.

Moreover, the Fourth

Circuit recently granted the government’s petition for rehearing

en banc in Medley.

See Order, Medley, supra (No. 18-4789) (Nov.

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); Burden v. United States, No. 20-5939 (filed Sept.

30, 2020); Scott v. United States, No. 20-5949 (filed Sept. 30,

2020).

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

brief in opposition in Greer.

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12, 2020).

Accordingly, Medley does not provide a basis for

granting the petition for a writ of certiorari here.

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.

Although the

guilty plea and trial contexts are not identical, resolution of

the

question

presented

in

Gary

resolution of the petition here.

could

potentially

affect

the

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. 3

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

NOVEMBER 2020

The government waives any further response to the

petition for a writ of certiorari unless this Court requests

otherwise.

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