Petition for Writ of Certiorari — Edin Anael Solis-Rodriguez, Petitioner v. United States

No. ____

_____________

In The

Supreme Court of the United States

______________________________

EDIN ANAEL SOLIS-RODRIGUEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Fourth Circuit

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

John G. Baker

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Joshua B. Carpenter

Appellate Chief

Counsel of Record

One Page Avenue, Suite 210

Asheville, NC 28801

Telephone: (828) 232-9992

Joshua_Carpenter@fd.org

Ashley A. Askari

Assistant Federal Public Defender

129 West Trade Street, Suite 300

Charlotte, NC 28202

Telephone: (704) 374-0720

Ashley_Askari@fd.org

QUESTION PRESENTED

A district court violates Rule 11 if it fails to provide the defendant with accurate information about the statutory minimum and maximum penalties at the time

of the defendant’s guilty plea. See Fed. R. App. P. 11(b)(1)(H)-(I). If a defendant fails

to object to such an error in the district court, any claim for relief on appeal is subject

to the rigorous four-prong test under the plain-error standard of review. See United

States v. Olano, 507 U.S. 725, 732 (1993). The question presented, on which the circuits are divided, is:

Does a defendant’s failure to object to a Rule 11(b)(1)(H)-(I) error count against

him twice, not only by subjecting him to the rigorous plain-error standard in the first

place, but also by serving as a factor that weighs against a showing of prejudice under

the standard’s third prong?

i

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

DECISIONS BELOW .................................................................................................... 1

JURISDICTION............................................................................................................. 1

RELEVANT STATUTORY PROVISIONS ................................................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE ....................................................................................... 4

REASONS FOR GRANTING THE PETITION ............................................................ 9

I.

The circuits are split on the application of the plain error

double-counting rule. ............................................................................................ 9

II.

The double-counting rule applied by the decision below

is wrong. ............................................................................................................. 12

III. The question presented is important and recurring, and

this case presents a clean vehicle to resolve it. ................................................ 15

CONCLUSION............................................................................................................. 17

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Greer v. United States,

593 U.S. 503 (2021) ................................................................................................... 15

Lafler v. Cooper,

566 U.S. 156 (2012) ................................................................................................... 15

Molina-Martinez v. United States,

578 U.S. 189 (2016) ............................................................................. 4, 14, 15, 16, 17

Puckett v. United States,

556 U.S. 129 (2009) ................................................................................................... 15

Rosales-Mireles v. United States,

585 U.S. 129 (2018) ................................................................................................... 15

United States v. Alvarado-Casas,

715 F.3d 945 (5th Cir. 2013) ..................................................................................... 10

United States v. Borowy,

595 F.3d 1045 (9th Cir. 2010) ................................................................................... 10

United States v. Davila,

569 U.S. 597 (2013) ................................................................................... 4, 13, 14, 16

United States v. Dixon,

308 F.3d 229 (3rd Cir. 2002)..................................................................................... 12

United States v. Dominguez-Benitez,

542 U.S. 74 (2004) ..................................................................................... 3, 12, 13, 17

United States v. Hatcher,

947 F.3d 383 (6th Cir. 2020) ................................................................................. 4, 13

United States v. Hogue,

998 F.3d 745 (7th Cir. 2020) ..................................................................................... 12

United States v. Marcus,

560 U.S. 258 (2010) ........................................................................................... 2, 4, 13

iii

United States v. Massenburg,

564 F.3d 337 (4th Cir. 2009) ............................................................................... 11, 14

United States v. Monie,

858 F.3d 1029 (6th Cir. 2017) ................................................................................... 11

United States v. Morales,

152 F.4th 31 (1st Cir. 2025) ...................................................................................... 10

United States v. Olano,

507 U.S. 725 (1993) ........................................................................................... ii, 3, 13

United States v. Rodriguez,

725 F.3d 271 (2nd Cir. 2013) .................................................................................... 10

United States v. Sanchez-Cruz,

392 F.3d 1196 (10th Cir. 2004) ................................................................................. 10

United States v. Sanya,

774 F.3d 812 (4th Cir. 2014) ..................................................................................... 12

United States v. Solis-Rodriguez,

144 F.4th 617 (4th Cir. 2025) .................................................................................... 1, 6

United States v. Thompson,

770 F.3d 689 (8th Cir. 2014) ..................................................................................... 10

United States v. Todd,

521 F.3d 891 (8th Cir. 2008) ..................................................................................... 14

United States v. Vaval,

404 F.3d 144 (2nd Cir. 2005) .................................................................... 9, 10, 11, 15

United States v. Vonn,

535 U.S. 55 (2002) ............................................................................................... 15, 16

Statutes

18 U.S.C. § 922(g) ............................................................................................ 4, 5, 6, 11

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

iv

Rules

Fed. R. App. P. 11(b)(1)(H)-(I) ....................................................................................... ii

Fed. R. Crim. P. 11(b)(1)(H)-(I) ......................................................................... 1, 2, 3, 7

Fed. R. Crim. P. 52(b) ............................................................................ 2, 12, 13, 14, 15

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Edin Solis-Rodriguez respectfully petitions for writ of certiorari to

review the judgment of the United States Court of Appeals for the Fourth Circuit in

this case.

DECISIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit is

published at 144 F.4th 617 (4th Cir. 2025), and reprinted at App. 1-27. The sentencing

order of the district court is unpublished and reprinted at App. 29-35.

JURISDICTION

The Court of Appeals entered judgment on July 23, 2025. App 28. On October

2, 2025, the Chief Justice extended the time in which to file a petition for writ of

certiorari through December 20, 2025. This Court has jurisdiction under 28 U.S.C. §

1254(1).

RELEVANT STATUTORY PROVISIONS

Rule 11(b)(1)(H)-(I) of the Federal Rules of Criminal Procedure, in relevant

part, provides:

(b) CONSIDERING AND ACCEPTING A GUILTY OR NOLO CONTENDERE

PLEA.

(1) Advising and Questioning the Defendant. Before the court

accepts a plea of guilty or nolo contendere, the defendant may

be placed under oath, and the court must address the defendant personally in open court. During this address, the court

must inform the defendant of, and determine that the defendant understands, the following:

...

1

(H) any maximum possible penalty, including imprisonment,

fine, and term of supervised release;

(I) any mandatory minimum penalty; . . .

Rule 52 of the Federal Rules of Criminal Procedure provides:

(a) HARMLESS ERROR. Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.

(b) PLAIN ERROR. A plain error that affects substantial rights may

be considered even though it was not brought to the court's attention.

INTRODUCTION

Despite this Court’s repeated rejection of burden-altering categorical rules under the plain-error standard, the circuit courts remain “trapped … in an analytic

maze.” United States v. Marcus, 560 U.S. 258, 270–71 (2010) (Stevens, J., dissenting).

The issue in this case arises under the standard’s third prong where a circuit majority

has coalesced around a double-counting rule that effectively precludes relief for a significant category of appellate claims. Under this rule, circuit courts consider a defendant’s failure to object to a district court’s error twice—first to set the standard of

review and again to deny relief. This double-counting rule conflicts with the plain text

of the federal rules and this Court’s precedent.

To explain the issue, we must first lay out the legal groundwork. Before a defendant enters a plea of guilty, the federal rules require the district court to advise

the defendant of certain critical information, including the “maximum possible penalty” and “any mandatory minimum penalty.” Fed. R. Crim. P. 11(b)(1)(H)-(I). Where

the court fails to properly advise a defendant, it commits a so-called Rule 11 error

2

that may render the guilty plea invalid. See, e.g., United States v. Dominguez-Benitez,

542 U.S. 74 (2004). If a defendant asserts such an error on appeal, the standard of

review is determined by a single question—did the defendant object? If the answer is

no, the issue is unpreserved or “forfeited,” and the plain-error standard applies. Under plain-error review, a defendant only receives relief where he establishes: (1) there

was error, (2) the error was plain, (3) the error affected his substantial rights, and (4)

the error “seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).

The circuit conflict here arises from the third prong—the substantial rights

question—in cases where the district court misadvises a defendant about the applicable minimum or maximum penalties. Ordinarily, a defendant meets the prongthree burden if the “entire record” establishes a “reasonable probability” that, but for

the error, the defendant would not have pleaded guilty. United States v. DominguezBenitez, 542 U.S. 74, 83 (2004).

A majority of circuits depart from this ordinary practice in cases that involve

a district court’s failure to properly advise a defendant of the statutory maximum or

minimum penalties under Rule 11(b)(1)(H)-(I). In this context, these circuits—including the decision below—employ a double-counting rule that effectively prohibits relief

for an unpreserved Rule 11(b)(1)(H)-(I) error. Under this rule, the courts begin by

correctly holding that a defendant’s failure to object to the Rule 11 error subjects the

appellate claim to the more rigorous plain-error standard. But the courts then consider the failure to object again at prong three, weighing it as a factor that effectively

3

prohibits a defendant from satisfying his third-prong burden. As the Sixth Circuit

properly recognized, this rule is flawed because it “render[s] superfluous the application of plain-error review[.]” United States v. Hatcher, 947 F.3d 383, 393 (6th Cir.

2020).

The double-counting rule echoes past categorical rules that this Court has rejected because they created outcome determinative presumptions on prong-three of

the plain-error standard. See Molina-Martinez v. United States, 578 U.S. 189 (2016);

United States v. Davila, 569 U.S. 597, 600-01, 612 (2013); United States v. Marcus,

560 U.S. 258, 263 (2010). This Court’s intervention is again needed to ensure the

plain-error standard is correctly applied.

STATEMENT OF THE CASE

Edin Solis-Rodriguez is a Honduran citizen who attended a small school in

Honduras school until the fourth grade. CAJA150. 1 He has no education beyond that.

CAJA150. When he pleaded guilty in 2022, he was 22 years old and had only one

prior contact with the criminal court system due to a misdemeanor immigration offense. CAJA141.

Because he was unlawfully present in the United States, Solis-Rodriguez was

prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5). CAJA13. Despite

knowing that he was in the United States unlawfully, Solis-Rodriguez intentionally

possessed two firearms for which he was federally charged. CAJA142.

1 Citations to “CAJA” refer to the Joint Appendix filed in the Court of Appeals

4

Without a plea agreement, Solis-Rodriguez pleaded guilty to two counts of violating § 922(g)(5). CAJA15-29. A Spanish-language interpreter assisted Solis-Rodriguez at the plea hearing. CAJA15. The magistrate judge explained the charges to

Solis-Rodriguez, saying: “Each of these counts alleges the same offense, possession of

a firearm by an illegal alien. The difference between the counts is that they occurred

on different dates.” CAJA18. When it was time to explain the maximum penalty to

Solis-Rodriguez, the magistrate asked the prosecutor, “what’s the maximum penalty

for that offense?” CAJA19. The prosecutor responded, “The maximum term of imprisonment of 10 years, a $250,000 fine, and up to three years of supervised release.”

CAJA19. Then, after concluding that the 15-year mandatory-minimum under the

Armed Career Criminal Act would not apply, the magistrate court told Solis-Rodriguez: “It sounds like the maximum penalty for these offenses would be 10 years imprisonment, $250,000 fine, or both, and period of supervised release.” CAJA20.

After advising Solis-Rodriguez that the maximum penalty was 10 years in

prison, the court said: “those are the charges that you’re pleading to and the maximum penalties that could apply,” and asked, “Do you understand that information?”

CAJA20. Solis-Rodriguez responded, “Yes,” and he also said “yes” when asked

whether he had talked with his counsel “about that.” CAJA20. The magistrate judge

accepted Solis-Rodriguez’s plea, finding that “the defendant’s plea is knowingly and

voluntarily made, and that the defendant understands the charges, potential penalties, and consequences of his plea.” CAJA27. Solis-Rodriguez did not object to the

magistrate’s acceptance of his guilty plea.

5

After the magistrate accepted Solis-Rodriguez’s guilty plea, a U.S. Probation

Officer prepared a presentence investigation report recommending a prison sentence

longer than 10 years. CAJA151. The PSR: (1) advised that the maximum sentence for

each of the two § 922(g)(5) counts was 10 years, CAJA151, (2) calculated a Guidelines

sentencing range of 151 to 188 months’ imprisonment based on a cross-reference to

attempted murder, CAJA146, CAJA151, and (3) recommended running the sentences

consecutively to impose a sentence higher than the 10 years’ imprisonment the magistrate judge advised was the maximum penalty for the offenses. CAJA151.

The PSR’s sentencing calculations were based on a statement of relevant conduct provided by the United States Attorney’s Office which stated that on the night

of November 14, 2021, Solis-Rodriguez shot C.S. outside a restaurant causing serious

injuries. JA143-JA144. According to the person who had given Solis-Rodriguez a ride

to the restaurant, C.S. and Solis-Rodriguez “exchanged words” while the men were

in the restaurant. CAJA144. And when questioned by a Spanish-speaking officer,

Solis-Rodriguez immediately admitted shooting C.S. and said he did so because the

man threatened to follow him home and kill his family. CAJA145.

Defense counsel objected to the PSR’s cross-reference, asserting that the state

had not prosecuted murder-related charges and that Solis-Rodriguez acted in selfdefense. CAJA138-139. Counsel also objected on grounds that a jury hadn’t determined beyond a reasonable doubt the underlying conduct that “increases his potential

sentence above the statutory maximum of 10 years.” CAJA137 (emphasis in original).

6

At the sentencing hearing, the district court had to explain that defense counsel was incorrect because “there’s two different convictions here, two separate convictions, each with a statutory maximum of 10 years, which means he can be sentenced

up to 20 years.” CAJA50.The court ultimately concluded that Solis-Rodriguez’s

Guidelines range was 151 to 188 months, CAJA106—approximately 2.5-5.5 years beyond what the magistrate judge told Solis-Rodriguez he faced at the time he pleaded

guilty. The court then imposed a sentence of “120 months on Count 1 and 60 months

on Count 2, each count consecutive, for a total sentence of 180 months.” CAJA116.

Solis-Rodriguez appealed his conviction and sentence to the Fourth Circuit.

CAJA136.

On appeal, Solis-Rodriguez argued that the magistrate judge failed to advise

him of the correct statutory maximum sentence as required under Federal Rule of

Criminal Procedure 11(b)(1)(H). Se Op. Br. (Doc. 17), United States v. Solis-Rodriguez, No. 22-4654 (May 10, 2023), at 12-20. Solis-Rodriguez acknowledged that his

claim was subject to plain error review, id., at 12, but laid out the circumstantial

evidence demonstrating a “reasonable probability” that, had he known he was facing

20 rather than 10 years in prison, he would not have pleaded guilty. Id at 18-20. This

included:

•

The fact that he pleaded guilty without a plea agreement. Had he understood he was facing a statutory maximum sentence of 10 years on each of

the two counts, he would have pursued a plea agreement. Id. at 19.

•

The fact that the record contained evidence supporting a self-defense theory

on Count II of the indictment, which could have been presented as an affirmative defense at trial. Id. at 7 (citing CAJA138-39).

7

•

The fact that he, and his counsel, did not understand that he was facing 20

years, double what he was told, until the middle of sentencing. Id. at 19.

In sum, Solis-Rodriguez argued that these factors established a reasonable

probability that, if he had known he was facing up to 20 years of incarceration, the

outcome would have been different in that he would have pursued a plea agreement

or gone to trial. Op. Br. at 17-20.

The Fourth Circuit rejected Solis-Rodriguez’s Rule 11 claim. As an initial matter, the court agreed that, because he had not objected to the Rule 11 error in the

district court, the claim was subject to the plain-error standard. App. 9. The court

then assumed that an error had occurred (prong one) and that the error was plain

(prong two). App. 10. It held, however, that Solis-Rodriguez could not carry his burden on the third prong. Citing its prior precedent in Massenburg, which applies the

double-counting rule, the court placed a heavy emphasis on Solis-Rodriguze’s failure

to object to the Rule 11 error:

Unlike the defendant in Hairston [a harmless error case]—and

like the defendant in Massenburg [a plain error case]—Solis-Rodriguez neither objected to, nor moved to withdraw, his guilty

plea below. Nor did he indicate any surprise at the sentencing

hearing when presented with the possibility of 20 years’ imprisonment.

App. 13 (brackets and text contained therein added) (citing United States v.

Massenburg, 564 F.3d 337, 340 (4th Cir. 2009)). Aside from its focus on the failure to

object, the court’s prong-three analysis included only a brief reference to the strength

of the government’s evidence and that a plea produced a lower guidelines range (due

to the acceptance-of-responsibility reduction). App. 13. The court did not address

8

Solis-Rodriguez’s arguments or record evidence establishing that he met his “reasonable probability” burden under prong three of the plain error analysis. App.9-14.

REASONS FOR GRANTING THE PETITION

This case presents a recurring and intractable issue that a majority of the circuits get wrong. In the class of plain error cases where circuit courts review a minimum/maximum Rule 11 error, most circuits apply a categorical double-counting rule

that effectively precludes relief on prong three of the plain error analysis. The rule

collapses the plain error standard in an entire class of cases. And it ignores this

Court’s repeated rejection of any categorical rule that eliminates the individualized,

case-specific analysis required under prong three of the plain error analysis.

I.

The circuits are split on the application of the plain error doublecounting rule.

The circuits are divided into two camps on the question presented here. In a

majority of circuits, the failure to object to a minimum/maximum Rule 11 error is

double counted against the defendant, subjecting him not only to the rigorous plainerror standard but also weighing as a factor that effectively precludes relief on the

standard’s third prong. A minority of circuits reject this double-counting rule.

The Second Circuit’s decision in United States v. Vaval, 404 F.3d 144, 152 (2nd

Cir. 2005), which addresses a similar Rule 11 error, is illustrative of the majority

approach. There, the district court failed to advise Vaval that the court may order

restitution, which was required under Rule 11(b)(1)(K). Id. at 151. At sentencing, the

court imposed $6,500 in restitution. Id. Vaval neither objected nor moved to withdraw

his plea. See id. On appeal, Vaval sought relief based on the Rule 11 error. Because

9

he had not objected in the district court, the Second Circuit applied the plain-error

standard of review. Id. Then, after acknowledging that it was “undisputed” that the

district court erred, the Second Circuit again relied on the failure to object as the

basis for denying relief under the third prong. The court’s reasoning was categorical:

“Where a defendant, before sentencing, learns of information erroneously omitted in

violation of Rule 11 but fails to attempt to withdraw his plea based on that violation,

there can be no reasonable probability that, but for the [Rule 11 violation], he would

not have entered the plea, and the plain error standard is not met.” Vaval, 404 F.3d

152 (cleaned up). Under this rationale, then, a defendant’s failure to object to a Rule

11 error effectively precludes any possibility of relief under the plain-error standard

of review.

The majority of circuits follow this same approach across cases addressing minimum/maximum Rule 11 errors. Although Vaval articulates the rule most explicitly,

other circuits routinely weigh a defendant’s failure to object as a factor that effectively

precludes relief under the third prong in a minimum/maximum Rule 11 case. See,

e.g., United States v. Morales, 152 F.4th 31, 41-42 (1st Cir. 2025); United States v.

Rodriguez, 725 F.3d 271, 276-77 (2nd Cir. 2013); United States v. Massenburg, 564

F.3d 337, 343-44 (4th Cir. 2009); United States v. Alvarado-Casas, 715 F.3d 945, 95455 (5th Cir. 2013); United States v. Todd, 521 F.3d 891, 897 (8th Cir. 2008); United

States v. Thompson, 770 F.3d 689 (8th Cir. 2014); United States v. Borowy, 595 F.3d

1045, 1049 (9th Cir. 2010); United States v. Sanchez-Cruz, 392 F.3d 1196, 1200 (10th

Cir. 2004).

10

The decision below relied on this same double-counting approach in denying

Solis-Rodriguez’s claim for plain-error relief. Consistent with prior circuit precedent

in Massenburg, the court held that Solis-Rodriguez failed to meet his prong-three

burden by primarily focusing on his failure to object, move to withdraw his plea, or

express surprise. App.10 (citing Massenburg, 564 F.3d at 343-44 (denying plain error

relief on prong three noting “no statements on the record … suggest[ed] that Massenburg would not have pleaded guilty if the district court had properly informed him of

the sentencing exposure” and finding “significant Massenburg’s failure to move to

withdraw his guilty plea”).

By contrast, three circuits refuse to double count a defendant’s failure to object

in this manner. Let’s start with United States v. Monie, 858 F.3d 1029, 1030 (6th Cir.

2017). There the defendant pleaded guilty to 18 U.S.C. § 922(g)(1)—felon-in-possession of a firearm. During the plea colloquy, the district court failed to advise Monie of

the statutory minimum 15-year sentence, which applied because Monie qualified for

the Armed Career Criminal enhancement, and instead told Monie the maximum sentence was 10 years in prison. Id. At sentencing, Monie received 15 years on the felonin-possession count. Id.

Because Monie had not objected in the district court, the Sixth Circuit applied

the plain-error standard of review. Id. at 1031. Consistent with cases like Vaval, the

government urged the court to rely on the failure to object as a factor weighing

against the “reasonable probability” showing required at the third prong. But the

Sixth Circuit refused, explaining that a defendant’s “failure to object to the error …

11

of course provides the reason why he must meet the rigorous plain error standard.

But this failure, in and of itself, does not provide a basis for concluding that the defendant failed to demonstrate a reasonable probability that his substantial rights

were affected.” Id. at 1032 (brackets omitted) (quoting United States v. Sanya, 774

F.3d 812, 818 (4th Cir. 2014)). 2

At least two other circuits have followed this same approach by refusing to

weigh a defendant’s failure to object as a factor under the third prong of a minimum/maximum Rule 11 case. See United States v. Dixon, 308 F.3d 229, 235 (3rd Cir.

2002) (applying plain error rule later adopted in Dominguez-Benitez and no practice

of double counting); United States v. Hogue, 998 F.3d 745, 751 (7th Cir. 2020) (no

double counting).

II.

The double-counting rule applied by the decision below is wrong.

The decision below—and the majority approach it reflects—cannot be recon-

ciled with the plain text of Rule 52 or this Court’s precedent. In case after case, this

Court has eschewed categorical or quasi-categorical rules that undercut the individualized, case-specific review required under the plain-error standard.

The Sixth Circuit has specifically recognized the problem with the majority

approach. In a case addressing a related Rule 11 error, the court reasoned that the

double-counting rule “would render superfluous the application of plain-error review—there would be no inquiry into whether the defendant's substantial rights were

2 In Sanya, the Fourth Circuit rejected the government’s request to double count in a case involving a

different type of Rule 11 error, a violation of Rule 11(c), which prohibits judicial involvement in plea

negotiations.

12

affected, by virtue of failing to object and thereby failing to show prejudice.” United

States v. Hatcher, 947 F.3d 383, 393 (6th Cir. 2020). Put another way, the doublecounting rule creates a non-sensical circularity:

•

If you did not object, your claim is reviewed for plain error.

•

Under plain error prong three, you cannot meet your burden if you did

not object.

•

So, to obtain relief under plain error, you must object.

•

But if you object, your claim is not reviewed under the plain-error standard; it is subject to the more favorable harmless-error standard.

In effect, then, the circuit majority applies a categorical rule that renders plainerror relief unavailable for an entire category of unpreserved errors. But that rule

conflicts with the text of Rule 52, which expressly provides for the possibility of relief

if the defendant can establish that the error “affect[ed] substantial rights.” Fed. R.

Crim. P. 52(b). This rule is tantamount to treating the unpreserved error as waived

rather than forfeited, an approach expressly rejected by this Court. See Olano, 507

U.S. at 733-34; Dominguez-Benitez, 542 U.S. at 83 (applying plain error review to

forfeited, i.e., unpreserved, Rule 11 errors).

This Court has repeatedly rejected similar categorical rules under the plainerror standard. In Marcus and Davila, for example, the Court rejected judge-crafted

rules that reduced or eliminated a defendant’s prong-three burden. Marcus, 560 U.S.

at 263 (rejecting prong-three standard that would “set aside a conviction whenever

there exists ‘any possibility, no matter how unlikely,’ that the jury could have convicted based exclusively on pre-enactment conduct.” (emphasis in original)); Davila,

13

569 U.S. at 600-01, 612 (rejecting presumptive vacatur where lower court improperly

participated in plea discussions because “the Court of Appeals should have considered

whether it was reasonably probable that, but for [the error], Davila would have exercised his right to go to trial.”).

And in Molina-Martinez, the Court rejected a rule that increased a defendant’s

prong-three burden in a subset of Guidelines error. There, the Fifth Circuit implemented an “additional evidence” burden at prong three of the plain error analysis.

Molina-Martinez, 578 U.S. at 191. This new burden applied where a district court

erred in calculating the guidelines, but the defendant’s sentence fell “within what

would have been the correct Guidelines range[.]” Id. at 189-190. The circuit court

reasoned that, in this scenario, and absent additional evidence, a defendant could not

“demonstrate he [was] prejudiced by the error.” Id. at 191.

This Court rejected the “additional evidence” burden, stating “[n]othing in the

text of Rule 52(b), its rationale, or the Court’s precedents support” the circuit court’s

rule. Id. at 198. The Court further noted that “the defendants in these cases should

not be prevented by a categorical rule from establishing on appeal that there is a

reasonable probability the [lower court’s error] had an effect on their within-Guidelines sentence.” Id. at 201.

The Court’s holding in Molina-Martinez applies with equal force here. The “additional evidence” burden and double-counting practice employ the same type of irrebuttable presumption that a defendant cannot satisfy the prong-three standard:

14

Additional Evidence

Absent additional evidence, a defendant

could not “demonstrate he [was]

prejudiced by the error.” MolinaMartinez, 578 U.S. at 191 (emphasis

added).

Double Counting

Where a defendant … fails to attempt to

withdraw his plea … there can be no

reasonable probability … he would

not have entered the plea, and the plain

error standard is not met.” Vaval, 404

F.3d 152 (emphasis added).

In sum, the majority of circuits—including the decision below—are once again

applying “exactly the sort of strict, categorical rule against which [this Court has]

warned[.]” Molina-Martinez, 578 U.S. at 208 (Alito, J., concurring in part and concurring in judgment). This Court’s intervention is needed.

III.

The question presented is important and recurring, and this case

presents a clean vehicle to resolve it.

The federal criminal justice system “is for the most part a system of pleas,”

with “[n]inety-seven percent of federal convictions” coming as “the result of guilty

pleas.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). As a result, federal courts at every

level are routinely tasked with addressing issues related to the validity of guilty

pleas. And this Court’s intervention is routinely needed to resolve the resulting conflicts. See Greer v. United States, 593 U.S. 503 (2021) (resolving conflict regarding

structural nature of trial and Rule 11 Rehaif errors); Rosales-Mireles v. United States,

585 U.S. 129 (2018) (resolving conflict regarding burden at prong four of plain error

analysis); Puckett v. United States, 556 U.S. 129 (2009) (resolving conflict regarding

application of plain-error standard to forfeited claims of government plea breach);

United States v. Vonn, 535 U.S. 55 (2002) (resolving circuit splits regarding application of plain error review in Rule 11 cases and whether courts look to entire record

for prong-three analysis).

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This case presents a clean vehicle to address the question presented and resolve the circuit conflict on the double-counting rule. As an initial matter, the decision

below relied exclusively on a holding that Solis-Rodriguez’s Rule 11 claim failed on

the third prong of plain-error review. App. 14. The court explicitly assumed that

prongs one and two were satisfied, and the court did not make any alternative holding

regarding prong four. App. 13-14. Accordingly, the third-prong analysis—and its improper reliance on the double-counting rule—is dispositive in this case.

If Solis-Rodriguez had presented his claim in the Sixth Circuit, which prohibits

double counting in the minimum/maximum Rule 11 context, he would have satisfied

his third-prong burden. In fact, this case demonstrates the “unworkable nature” of

the Fourth Circuit’s rule. Molina-Martinez, 578 U.S. at 202. By double counting, the

circuit court “cut off consideration of the particular facts of [Solis-Rodriguez’s] case.”

Davila, 569 U.S. at 612. Instead, the sole factors cited in the court’s prong-three analysis—the government’s strong evidence and the guidelines reduction due to a plea—

are present in virtually every guilty plea case. See App. 13. But as this Court has

recognized, the “particular facts and circumstances matter.” Id. at 611.

Had the Fourth Circuit properly considered the “entire record,” Vonn, 535 U.S.

at 59, it would have been required to address the evidence establishing why SolisRodriguez failed to object. This included undisputed evidence that Solis had less than

a fourth grade education in his native Honduras, CAJA150, his limited contact with

the judicial system, CAJA147, and his inability to understand or speak English.

CAJA150. The court also disregarded the ample record evidence that defense counsel,

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himself, did not understand that Solis-Rodriguez faced 20 years in prison until the

middle of sentencing—long after he pleaded guilty. CAJA50-59; CAJA137-138.

Finally, by employing its double-counting rule, the circuit court ignored portions of the record that “satisf[ied] [Solis-Rodriguez’s] burden with circumstantial evidence[.]” Molina-Martinez. at 208 (Alito, J., concurring in part and concurring in

judgment). “But there is no good reason to preclude defendants from showing prejudice via … circumstantial evidence.” Id.

The plain error standard is “not … too easy.” Dominguez-Benitez, 542 U.S.

at 82. But it is not impossible. The circuit courts’ categorical double-counting

rule, however, renders plain error relief impossible. Molina-Martinez, 578 U.S. at

201. This Court should, again, step in to ensure the circuits employ the kind of

case-specific analysis that the plain-error standard requires. Id.

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

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Respectfully submitted,

John G. Baker

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

/s/Joshua B. Carpenter______

Joshua B. Carpenter

Appellate Chief

Counsel of Record

One Page Avenue, Suite 210

Asheville, NC 28801

(828) 232-9992

Joshua_Carpenter@fd.org

Ashley A. Askari

Assistant Federal Public Defender

129 West Trade Street, Suite 300

Charlotte, NC 28202

(704) 374-0720

Ashley_Askari@fd.org

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