Petition for Writ of Certiorari — Robert Louis Brandon, Petitioner v. United States

No.

In the

Supreme Court of the United States

ROBERT LOUIS BRANDON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Nelson S. Ebaugh

Nelson S. Ebaugh, P.C.

3730 Kirby Dr, Ste 1200

Houston, Texas 77098

Tel. (713) 752-0700

Fax (713) 739-0500

nebaugh@ebaughlaw.com

Attorney for Petitioner

QUESTIONS PRESENTED

The questions presented are:

1. Is a district court’s error under Rehaif v. United States, 139 S. Ct. 2191

(2019), a structural error that warrants automatic reversal of a guilty plea, as

the Fourth Circuit has held, or is there no structural error in the context of

Rehaif, as most other circuits have held?1

2. Relatedly, what prejudice inquiry (if any) applies to appellate review of

an unknowing and involuntary guilty plea?2

The Petitions for a Writ of Certiorari in Isaac L. Hobbs v. United States, No. 20-171

(cert. petition filed Aug. 13, 2020) and United States v. Rodney Lavalais, No. 205489 (cert. petition filed Aug. 24, 2020) raise the same issue.

2

The Petition for a Writ of Certiorari in United States v. Rodney Lavalais, No. 205489 (cert. petition filed Aug. 24, 2020) raises the same issue.

1

i

RELATED PROCEEDINGS

Proceedings directly on review:

United States v. Brandon, No. 7:18-cr-00232-DC-1

(W.D.T.X. Mar. 13, 2019)

United States v. Brandon, No. 19-50227

(5th Cir. Jul. 14, 2020)

ii

TABLE OF CONTENTS

Page

Questions Presented .................................................................................................. i

Related Proceedings.................................................................................................. ii

Table of Contents .....................................................................................................iii

Table of Citations...................................................................................................... v

Prayer ........................................................................................................................ 1

Opinions Below ......................................................................................................... 1

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

Constitution and Statutory Provision Involved ...................................................... 1

Statement of the Case .............................................................................................. 3

Petitioner’s State Conviction

(Felon-in-Possession Predicate Conviction) .................................................. 3

Petitioner’s Felon-in-Possession Conviction ................................................. 3

The Rehaif Decision ....................................................................................... 4

Petitioner’s Appeal to the Fifth Circuit......................................................... 5

Reasons for Granting the Writ ................................................................................. 7

I.

The Fourth Circuit’s decision in Gray “creates a circuit split

of yawning proportions” that “the Supreme Court should

consider . . . promptly.” .......................................................................... 7

A.

The Fourth Circuit is alone in holding that a Rehaif

error is a structural error that warrants automatic

reversal of a guilty plea ............................................................... 7

B.

The court of appeals are incapable of resolving this

frequently recurring conflict ....................................................... 8

iii

II.

C.

The decision below conflicts in principal, if not

directly, with Rehaif .................................................................... 9

D.

This case presents the right opportunity for resolving

the circuit conflict ...................................................................... 10

Even if Rehaif error does not mandate automatic reversal,

this Court should clarify the prejudice framework

applicable to unknowing and involuntary guilty pleas ...................... 11

Conclusion ............................................................................................................... 13

Appendices

Appendix A:

Court of Appeals Opinion

(5th Cir. Jul. 14, 2020) ...................................................................................... 1a

Appendix B:

District Court Judgment

(W.D.T.X. Mar. 13, 2019) ................................................................................ 10a

Appendix C:

Order Adopting Magistrate Judge’s Findings of

Fact and Recommendation of Felony Guilty Plea

Regarding Count One of the Indictment ............................................................. 16a

Appendix D:

Findings of Fact and Recommendation on Felony

Guilty Plea Before the U.S. Magistrate Judge .................................................... 18a

Appendix E:

Rearraignment/Plea Transcript ........................................................................... 20a

iv

TABLE OF CITATIONS

CASES

Page

Bousley v. United States,

523 U.S. 614 (1998) ............................................................................................. 2

Boykin v. Alabama,

395 U.S. 238 (1969) ............................................................................................. 2

Descamps v. United States,

570 U.S. 254 (2013) ........................................................................................... 12

In re Winship,

397 U.S. 358 (1970) ............................................................................................. 2

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................................................... passim

United States v. Balde,

943 F.3d 73 (2d Cir. 2019) ................................................................................... 8

United States v. Benamor,

937 F.3d 1182 (9th Cir. 2019) ............................................................................. 8

United States v. Burghardt,

939 F.3d 397 (1st Cir. 2019) ................................................................................ 8

United States v. Denson,

774 F. App'x 184 (5th Cir. 2019) ......................................................................... 8

United States v. Dominguez Benitez,

542 U.S. 74 (2004) ....................................................................................... 11, 12

United States v. Fisher,

796 F. App'x 504 (10th Cir. 2019) ....................................................................... 8

United States v. Games-Perez,

667 F.3d 1136 (10th Cir. 2012) ........................................................................... 9

United States v. Garcia – Paulin,

627 F. 3d 127 (5th Cir. 2010) ............................................................................ 10

v

United States v. Gray,

954 F.3d 194 (4th Cir. 2020) ......................................................................... 7, 10

United States v. Gray,

963 F.3d 420 (4th Cir. 2020)

(Wilkinson, J., concurring in denial of rehearing en banc)................................ 7

United States v. Guidry,

406 F.3d 314 (5th Cir. 2005) ............................................................................... 5

United States v. Hicks,

958 F.3d 399 (5th Cir. 2020) ............................................................................... 8

United States v. Hobbs,

953 F.3d 853 (6th Cir. 2020) ............................................................................... 8

United States v. Hollingshed,

940 F.3d 410 (8th Cir. 2019) ............................................................................... 8

United States v. McLellan,

958 F.3d 1110 (11th Cir. 2020) ........................................................................... 8

United States v. Olano,

507 U.S. 725 (1993) ......................................................................................... 1, 2

United States v. Williams,

946 F.3d 968 (7th Cir. 2020) ............................................................................... 8

Weaver v. Massachusetts,

137 S. Ct. 1819 (2017) ................................................................................... 2, 11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................................................................................ 2

STATUES & RULES

18 U.S.C. § 922(g) ............................................................................................. 4, 8, 9

18 U.S.C. § 922(g)(1) ................................................................................. 2, 3, 4, 5, 9

18 U.S.C. § 924(a)(2) ................................................................................................. 9

vi

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

Fed. R. Crim. P. 11.................................................................................................. 11

Fed. R. Crim. P. 52(b) ............................................................................................... 1

vii

PRAYER

Petitioner Robert Louis Brandon respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals (App. 1a-9a) is published at United States

v. Brandon, 965 F.3d 427 (5th Cir. 2020). The relevant orders of the district court

(App. 16a-46a) are unpublished.

JURISDICTION

The court of appeals entered its judgment on July 14, 2020. In light of the

ongoing COVID-19 pandemic, the Court extended the time to file this Petition to 150

days from the date of the lower court judgment. On September 25, 2020, petitioner

timely filed this Petition. The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISION INVOLVED

Federal Rule of Criminal Procedure 52(b) permits an appellate court to correct

a trial court’s plain error, even though the defendant did not object to that error in

the trial-court proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). Plain

error review requires the appellant to show that: (1) an error occurred; (2) the error

was plain; and (3) the error affected his or her substantial rights. If the appellant

can meet this test, the appellate court has discretion to grant relief. Id.

By contrast, errors that are closely linked to “certain basic, constitutional

guarantees that define . . . the framework of any criminal trial,” are deemed

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“structural,” Weaver v. Massachusetts, 137 S. Ct. 1819, 1907-08 (2017), and may

satisfy the third prong of plain-error review, regardless of their actual effect on the

outcome of the proceedings. See Olano, 507 U.S. at 735.

The Fifth Amendment makes plain that no person shall be deprived of life,

liberty, or property without due process of law. This command requires courts to

ensure that a defendant's guilty plea is made knowingly and voluntarily. Boykin v.

Alabama, 395 U.S. 238, 242 (1969). To that end, the government must prove every

element of each offense charged beyond a reasonable doubt. In re Winship, 397 U.S.

358, 361 (1970). A defendant's guilty plea is out of sync with his due-process rights

if the defendant did not understand “the essential elements of the crime with which

he was charged.” Bousley v. United States, 523 U.S. 614, 618-19 (1998).

Title 18 U.S.C. § 922(g)(1), the offense under which petitioner was convicted,

prohibits certain persons from knowingly possessing firearms. The Court set forth

four essential elements of this offense in Rehaif v. United States, 139 S. Ct. 2191

(2019). For a valid conviction under § 922(g)(1), the government must show that: (1)

the defendant belonged to the category of persons barred from possessing firearms;

(2) the defendant knew that he belonged to the category of persons barred from

possessing firearms; (3) the defendant knowingly possessed a firearm; and (4) the

firearm traveled in or affected interstate commerce. Id. at 2195-96.

2

STATEMENT OF THE CASE

Petitioner Robert Louis Brandon’s direct appeal to the Fifth Circuit raised a

question in light of Rehaif that has not yet been resolved by this Court: Can a Rehaif

error resulting in a constitutionally invalid plea qualify as a structural error? The

Fifth Circuit's Opinion below, along with its prior precedent, answers in the negative.

The Fifth Circuit and most other circuits contradict the Fourth Circuit. Accordingly,

petitioner now asks this Court to grant certiorari, resolve the circuit split, and provide

guidance to the lower courts.

Petitioner’s State Conviction

(Felon-in-Possession Predicate Conviction)

In 2008, petitioner pleaded guilty to burglary of a building, a felony, in state

court. The judge imposed three years’ probation. However, petitioner’s “probation

was revoked due to failing to report to a probation officer, failing to pay fees and fines,

failing to complete community service, and changing residence without permission.”

App. 3a-4a. Upon revocation, the state court sentenced petitioner to seven months in

prison. App. 4a. In short, petitioner never served more than a seven-month term of

imprisonment in connection with his state burglary conviction.

Petitioner’s Felon-in-Possession Conviction

On October 24, 2018, the government filed in the U.S. District Court for the

Western District of Texas, Midland-Odessa Division, a single count indictment

against petitioner. The indictment charged him of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The indictment alleges nothing about

whether, on the day of the alleged crime, petitioner knew that he was a prior felon.

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On December 17, 2018, petitioner pleaded guilty to count 1 of the indictment.

App. 44a. There was no plea agreement. App. 21a.

On March 12, 2019, the court sentenced petitioner to serve 30 months in the

custody of the Bureau of Prisons “to run consecutively to any sentence imposed in the

pending felony charge of prohibited substance in a correctional facility in the 142nd

Judicial District Court under Cause Number CR-51860.” App. 10a-11a.

Petitioner was convicted and sentenced without ever having been informed by

the government that he was a prior felon within the meaning of § 922(g)(1), or that

knowing his felon status at the time of his possession was an element of § 922(g)(1).

App. 20a-47a. Petitioner did not specifically object on this basis because the Court

had not yet issued its decision in Rehaif.

The Rehaif Decision

Six months after petitioner entered his guilty plea and just months after

sentencing, the United States Supreme Court held that convictions under § 922(g)

require proof the defendant “knew he belonged to the relevant category of persons

barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200

(June 21, 2019). In other words, the Supreme Court confirmed that § 922(g) has a

knowledge-of-status element. In petitioner’s case, that element requires the

government to allege and prove that he “actually knew—not should have known or

even strongly suspected but actually knew” that he was previously convicted of a

crime that that had a punishment of imprisonment exceeding one year. Id. at 2208

(Alito, J., dissenting).

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Before, the Fifth Circuit required the government to prove three elements for

a § 922(g)(1) conviction: (1) that the defendant previously had been convicted of a

felony; (2) that he possessed a firearm; and (3) that the firearm traveled in or affected

interstate commerce.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005).

Thus, Rehaif added a fourth, knowledge-of-status element to this equation.

Petitioner’s Appeal to the Fifth Circuit

Petitioner timely appealed the district court’s sentence imposed on March 12,

2019, as reflected in the notice of appeal entered on March 15, 2019. The U.S. District

Court for the Western District of Texas appointed counsel under the Criminal Justice

Act to represent petitioner on appeal.

Petitioner raised two issues on appeal.

Both issues were based on the

government’s failure to inform petitioner of the knowledge-of-status element under §

922(g)(1), as Rehaif requires.

First, does the evidence establish that petitioner knew on the date alleged in

the indictment that he had been previously convicted for an offense “punishable by

imprisonment for more than one year”?

Second, if not, did the district court plainly err by accepting his guilty plea in

the absence of such evidence?

The court held that petitioner “is not entitled to relief because he has not shown

‘a reasonable probability that, but for the error, he would not have entered the plea’

and therefore has not shown the district court’s error affected his substantial rights.”

5

App. 6a. Had the Fifth Circuit applied a proper structural-error test its analysis and

its outcome would have been different.

This petition follows.

6

REASONS FOR GRANTING THE WRIT

I.

The Fourth Circuit’s decision in Gray “creates a circuit split of

yawning proportions” that “the Supreme Court should consider . . .

promptly.”

United States v. Gray, 954 F.3d 194 (4th Cir. 2020) “is far-reaching in its

implications. It not only creates a circuit split of yawning proportions, but also an

equally profound schism with the Supreme Court's whole approach to error review

and remediation.”

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

(Wilkinson, J., concurring in denial of rehearing en banc). In fact, according to Judge

Harvie Wilkinson of the Fourth Circuit, “the Supreme Court should consider it

promptly.” Id.

A.

The Fourth Circuit is alone in holding that a Rehaif error is a

structural error that warrants automatic reversal of a guilty

plea.

In Gray, the Fourth Circuit held that “a standalone Rehaif error satisfies plain

error review because such an error is structural, which per se affects a defendant's

substantial rights.” United States v. Gray, 954 F.3d 194, 200 (4th Cir. 2020). The

Fourth Circuit further found “that the error seriously affected the fairness, integrity

and public reputation of the judicial proceedings and therefore [it] must exercise our

discretion to correct the error.” Id.

As noted by Judge Wilkinson, “eight—or nine—circuits . . . disagree with” the

Fourth Circuit decision in Gray and the “ranks are growing.” Gray, 963 F.3d at 420

(4th Cir. 2020) (Wilkinson, J., concurring in denial of rehearing en banc). Outside the

Fourth Circuit, “the circuits have uniformly held that a defendant cannot show an

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effect on his substantial rights where the evidence shows that the defendant knew of

his status as a felon at the time of his gun possession.” Id. at n. (citing United States

v. Burghardt, 939 F.3d 397, 403-05 (1st Cir. 2019); United States v. Balde, 943 F.3d

73, 97 (2d Cir. 2019); United States v. Denson, 774 F. App'x 184, 185 (5th Cir. 2019);

United States v. Hobbs, 953 F.3d 853, 857-58 (6th Cir. 2020); United States v.

Williams, 946 F.3d 968, 973-75 (7th Cir. 2020); United States v. Hollingshed, 940 F.3d

410, 415-16 (8th Cir. 2019); United States v. Fisher, 796 F. App'x 504, 510-11 (10th

Cir. 2019); United States v. McLellan, 958 F.3d 1110, 1118-20 (11th Cir. 2020); United

States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019); United States v. Hicks, 958

F.3d 399, 401-402 (5th Cir. 2020)).

B.

The court of appeals are incapable of resolving this frequently

recurring conflict.

The decisions discussed in Part I(A) of this petition show that courts of appeals

have repeatedly been confronted with the issue of whether there is structural error

in the context of Rehaif. That is hardly surprising. As noted by Justice Alito, Rehaif

“create[s] a mountain of problems with respect to the thousands of prisoners currently

serving terms for § 922(g) convictions.”

Rehaif, 139 S. Ct. at 2201 (Alito, J.,

dissenting). What the courts of appeals’ opinions reveal, beyond the fact that issues

regarding Rehaif error arise frequently and have produced a “circuit split of yawning

proportions,” is that the Fourth Circuit and the other circuits are not converging on

a consistent approach.

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C.

The decision below conflicts in principal, if not directly, with

Rehaif.

In Rehaif, this Court held that it did not “believe that Congress would have

expected defendants under §922(g) and §924(a)(2) to know their own statuses.”

Rehaif, 139 S. Ct. at 2197. “If the provisions before us were construed to require no

knowledge of status, they might well apply to . . . a person who was convicted of a

prior crime but sentenced only to probation, who does not know that the crime is

“punishable by imprisonment for a term exceeding one year.” Id. at 2197-98 (citing §

922(g)(1) (emphasis added); see also United States v. Games-Perez, 667 F.3d 1136,

1138 (10th Cir. 2012) (defendant held strictly liable regarding his status as a felon

even though the trial judge had told him repeatedly—but incorrectly—that he would

“leave this courtroom not convicted of a felony”)). This case falls within this scenario.

Here, before his arrest for violating the federal felon-in-possession statute,

petitioner had only been convicted of one felony offense, burglary of a building. For

his burglary conviction, the state court initially sentenced petitioner to three years of

probation. App. 3a-4a. After petitioner violated the terms of his probation, the state

court sentenced petitioner to only seven months of incarceration. App. 4a. Based on

these facts alone, petitioner did not necessarily know that his burglary conviction

subjected him to punishment “by imprisonment for a term exceeding one year.” 18

U.S.C. § 922(g)(1).

To be sure, when petitioner pleaded guilty to the burglary charge, he did sign

a judgment which identified burglary as a “felony offense” and was admonished

concerning the range of punishment at his guilty plea hearing. At most, however,

9

these facts establish only that he was made aware of the statutory maximum on June

25, 2008, the date of his sentencing for burglary. Whether he remembered these facts

over a decade later on September 23, 2018, the day he violated the federal felon-inpossession statute, is unclear from this record, and to hold otherwise would be to

accept with regard to factual bases an inference this Court rejected with regard to

congressional intent. See Rehaif, 139 S. Ct. at 2197-98.

In short, the district court was required to develop facts to support each

element of the offense charged below, United States v. Garcia – Paulin, 627 F. 3d 127,

131 (5th Cir. 2010), but the record fails to establish knowledge of prohibited status,

see Rehaif, 139 S. Ct. at 2200. Accordingly, the decision below conflicts in principal,

if not directly, with Rehaif.

D.

This case presents the right opportunity for resolving the

circuit conflict.

This case presents a perfect opportunity for this Court to decide whether a

Rehaif error is a structural error that warrants automatic reversal of a guilty plea.

Significantly, the circuit conflict identified above was outcome determinative in this

case. The Fourth Circuit vacated a conviction that was in the same posture as

petitioner’s, holding that “[i]t is the duty of the court to ensure that each defendant

who chooses to plead guilty enters a knowing and voluntary plea.” Gray, 954 F.3d at

207-08.

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II.

Even if Rehaif error does not mandate automatic reversal, this Court

should clarify the prejudice framework applicable to unknowing and

involuntary guilty pleas.

Even if this Court ultimately disagrees that an unknowing and involuntary

plea is reversible per se, it should clarify the prejudice inquiry applicable to that

special brand of constitutional error. In petitioner’s case, the Fifth Circuit—like most

other circuits—simply squeezed the defect into an ill-fitting Rule 11 mold. But “the

concept of prejudice is defined in different ways depending on the context in which it

appears.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1911 (2017). And United States

v. Dominguez Benitez, 542 U.S. 74 (2004)—at the very least—made clear that its

prejudice analysis was limited to the Rule 11 context and should not be stretched to

encompass constitutional errors like the one in this case.

At the very least, if this Court does intend to permit continued use of the

Dominguez Benitez prejudice framework in this context, the contours of that standard

must be carefully defined. The Fifth Circuit took liberties with its application—

imposing an actual innocence standard that imagined the outcome of a theoretical

trial, rather than focusing on the soundness of petitioner’s decision-making at the

time of his plea. In essence, the Fifth Circuit concluded that the constitutional

validity of a guilty plea and resulting unlawful conviction is of no consequence so long

as the defendant is unable to scrap together conclusive proof from an underdeveloped

record that he would have prevailed at trial. Importantly, “[t]he reasonable

probability standard is not the same as, and should not be confused with, a

11

requirement that a defendant prove by a preponderance of the evidence that but for

error things would have been different.” Dominguez Benitez, 542 U.S. at 83 n.9.

Moreover, the Fifth Circuit’s approach is particularly dangerous in this

context, in which defendants are unaware of the government’s additional burden and

therefore have no reason to develop record evidence relevant to the missing element

or dispute incorrect record evidence that may appear to support it. See Descamps v.

United States, 570 U.S. 254, 270 (2013) (“A defendant, after all, often has little

incentive to contest facts that are not elements of the charged offense.”). And, most

fundamentally, the constitutional ill in this context is not the wrongful conviction,

but instead the invalid adjudication itself. The Fifth Circuit’s approach to

constitutional error transforms reviewing courts into mere deciders of guilt or

innocence, rather than custodians of fair process.

Accordingly, regardless of this Court’s leanings on the structural error

question, it is critical—at the very least—to clarify the prejudice standard applicable

to appellate review of unknowing and involuntary guilty pleas.

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CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

Nelson S. Ebaugh

State Bar No. 24007139

Nelson S. Ebaugh, P.C.

3730 Kirby Drive, Suite 1200

Houston, Texas 77098

Tel. (713) 752-0700

Fax (713) 739-0500

nebaugh@ebaughlaw.com

Attorney for Petitioner – CJA counsel,

appointed under 18 U.S.C. § 3006A

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