Opposition Brief — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)

| Supra: us.

FLED

Li:

DCC 20 2C%6

No. 16-424 RT eo

In the Supreme Court of the Anited States

RODNEY CLASS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR/

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

IAN HEATH GERSHENGORN

Acting Solicitor General

Counsel of Record

LESLIE R. CALDWELL

Assistant Attorney General

FINNUALA K. TESSIER

Attorney

awn of Justice

2.C. 20530-0001

Su efs@usdoj.gov

(202) 514 2217 a

QUESTION PRESENTED

Whether petitioner is entitled to challenge the con-

stitutionality of his statute of conviction on appeal,

notwithstanding his voluntary and knowing entry of

an unconditional guilty plea in which he did not seek

to preserve any right to pursue such a challenge.

(1)

TABLE OF CONTENTS

Page

EEE REELS ee ee 1

SE TE 1

a sessecinenanmetionanadimencass l

CE EEE 6

EE ELE 18

TABLE OF AUTHORITIES

Cases:

Blackledge v. Perry, 417 U.S. 21 (1974) .......cccccccccccseeseeeees 8,9

Bonidy v. United States Postal Serv., 790 F.3d 1121

(10th Cir. 2015), cert. denied, 136 S. Ct. 1486 (2016)....... 15

Brady v. United States, 397 U.S. 742 (1970)...........cccccc0eeseeee 7

Chicot Cnty. Drainage Dist. v. Baxter State Bank,

CC EE i)

District of Columbia v. Heller, 554 U.S. 570

EES ESS 3, 15

GlobeRanger Corp. v. Software AG USA, Inc.,

886 F.8d 477 (Gth Cir. 2016).........00.-0..ccsssercccesceseresneeeseces 12

Halbert v. Michigan, 545 U.S. 605 (2005) .0...........cceeees 10

Haynes v. United States, 390 U.S. 85 (1968) .................. 9, 10

Hill v. Lockhart, 474 U.S. 52 (1985) .......-...--.....ccecceseeeeeeees 18

McDonald v. City of Chi., 561 U.S. 742 (2010) ................... 15

Menna v. New York, 423 U.S. 61 (1975).................. 7,8, 9,17

Palmer v. District of Columbia, 59 F. Supp. 3d 173

DS 3

People v. Bulger, 614 N.W.2d 103 (Mich.),

cert. denied, 531 U.S. 994 (2000) .............ccccccccceseesecereneee eee 10

Ricketts v. Adamson, 483 U.S. 1 (1987) .....2.....cccccceccceceneees 17

Steel Co. v. Citizens for a Better Env't, 523 U.S. 88

EE 13

Cases—Continued: Page

Tollett v. Henderson, 411 U.S. 258 (1978) ..............ccceeeeeesseeee 7

United States v. Aranda, 612 Fed. Appx. 177

EEE EE 12

United States v. Baucum, 80 F.3d 539 (D.C. Cir.

hci rca cnnratesiins 13

United States v. Bell, 70 F.3d 495 (7th Cir. 1995).............. 12

United States v. Bishop, 66 F.3d 569 (3d Cir.),

cert. denied, 516 U.S. 1082 (1995) and 516 U.S. 1066

EES en SS ER A a 11

United States v. Broce, 488 U.S. 563 (1989).....................- 6, 7

United States v. Broncheau, 597 F.2d 1260 (9th Cir.),

cert. denied, 444 U.S. 859 (1979) ...........c..cccseeeeserseeeereeeeenee 12

United States v. De Vaughn, 694 F.3d 1141 (10th Cir.

2012), cert. denied, 133 S. Ct. 2383 (2013).................... 9,11

United States v. Delgado-Garcia, 374 F.3d 1337

(D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005) ...... 6, 15

United States v. Diaz-Doncel, 811 F.3d 517 (1st Cir.

EER ne eA oe 11

United States v. Knowles, 29 F.3d 947 (5th Cir.

ET ne Se 12, 17, 18

United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993),

LB TE Ae ea ae 18

United States v. Marcus, 560 U.S. 258 (2010) .................... 16

United States v. Masciandaro, 638 F.3d 458

(4th Cir.), cert. denied, 132 S. Ct. 756 (2011) ................... 16

United States v. Mezzanatto, 513 U.S. 196 (1995) ............... x

United States v. Miranda, 780 F.3d 1185 (D.C. Cir.

ETE ESSE SI SO kate 8, 15

United States v. Palacios-Casquete, 55 F.3d 557

(11th Cir. 1995), cert. denied, 516 U.S. 1120 (1996)......... 13

United States v. Phillips, 645 F.3d 859 (7th Cir.

Sr ithceniconidnahicieehetcieshinaiaitieieshihatcebiepetaeiadieaataateenaneabeanint 12

Cases—Continued: Page

United States v. Rodia, 194 F.3d 465 (3d Cir. 1999),

cert. denied, 529 U.S. 1131 (2000) .0............2..cccceceeerseeereeee 11

United States v. Saac, 632 F.3d 1203 (11th Cir.),

cert. denied, 132 S. Ct. 139 (2011) ..............ccesceeeeeeesererees 11

United States v. Sandsness, 988 F.2d 970 (9th Cir.

Pi ish ieetesinccepinsenintestiabieesnniecinsniniinibasimisaindatieninnitrememnnesess 11

United States v. Sealed Appellant, 526 F 3d 241

(5th Cir.), cert. denied, 555 U.S. 1009 (2008) ................... 12

United States v. Seay, 620 F.3d 919 (8th Cir. 2010),

cert. denied, 562 U.S. 1191 (2011) .0.............ccecceceeneeeeeoeees 11

United States v. Skinner, 25 F.3d 1314 (6th Cir.

ai ienctsiectenseensnnssatuinihieniunitiapsenaiuapeninbiauiigieinmmemecemennacen 11

United States v. Whited, 311 F.3d 259 (3d Cir. 2002),

cert. denied, 538 U.S. 10665 (2008) ............cccccceccseeeceererennens 11

United States v. Williams, 341 U.S. 58 (1961) ............0000 9

United States v. Williams, 553 U.S. 285 (2008) ................. 16

Wisniewski v. United States, 353 U.S. 901 (1957)............. 13

Constitution, statutes and rules:

U.S. Const.:

EE eee re 3, 5, 14, 15, 16

coe Tre ea 17

eel 18

EEE ee a a 16

NT 3

ce 2,3

D.C. Code § 22-4504(a) (2012) ............cc-secerecccenseeeserereeesatees 2,3

Fed. R. Crim. P.:

Ea 5, 7, 10, 13, 14, 17

Rule 11 advisory committee’s note (1983) .......... 7,10, 14

Jn the Supreme Court of the United States

No. 16-424

RODNEY CLASS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

5a) is not published in the Federal Reporter. The

district court’s oral order denying petitioner’s motion

to dismiss the indictment (Pet. App. 6a-9a) is unre-

ported. The district court’s opinion and order defer-

ring in part and denying in part petitioner’s motion to

dismiss the indictment (Pet. App. 10a-16a) is reported

at 38 F. Supp. 3d 19.

JURISDICTION

The judgment of the court of appeals was entered

on July 5, 2016. The petition for a writ of certiorari

was filed on September 30, 2016. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States Dis-

trict Court for the District of Columbia, petitioner was

(1)

2

convicted on one count of unlawfully carrying and

having readily accessible a firearm on Capitol grounds,

in violation of 40 U.S.C. 5104(e)(1). C.A. App. 165. He

was sentenced to 24 days of imprisonment, to be fol-

lowed by 12 months of supervised release. /d. at 166-

167. The court of appeals affirmed. Pet. App. la-5a.

1. On May 30, 2013, petitioner parked his car “in

the 200 block of Maryland Avenue, 8.W., Washington,

D.C., which is part of the Capitol Grounds.” C.A. App.

162. An agent of the United States Capitol Police

observed that the car lacked authorization to park in

the area. /bid. Upon further inspection, the agent

observed what she believed to be a large blade and a

gun holster in the car. /bid.

When petitioner returned to his car, he admitted

that he had weapons in it. C.A. App. 162. After the

agent obtained a search warrant, the police found,

inter alia, a 9mm Ruger firearm loaded with eight

rounds, including one round in the chamber; several

loaded magazines containing 35 additional 9mm

rounds; a box of 50 additional 9mm rounds; a .44 cali-

ber Taurus firearm loaded with seven rounds, includ-

ing one round in the chamber; an additional 90 rounds

of .44 caliber ammunition; a .44 caliber Henry firearm

loaded with 11 rounds, including one round in the

chamber; and an additional 55 rounds of .44 caliber

ammunition. /d. at 162-163.

2. A grand jury indicted petitioner on one count of

unlawfully carrying or having readily accessible a

firearm on Capitol Grounds, in violation of 40 U.S.C.

5104(e)(1); and one count of carrying a pistol in public,

in violation of D.C. Code § 22-4504(a) (2012). Indict-

ment 1-2. The latter charge was ultimately dismissed

after the United States District Court for the District

3

of Columbia, in another case, held D.C. Code § 22-

4504(a) to be unconstitutional. C.A. App. 122-123, 141;

C.A. Supp. App. 134; see Palmer v. District of Colum-

bia, 59 F. Supp. 3d 178 (D.D.C. 2014).

Petitioner, who eventually decided to waive his

right to counsel, filed a number of pro se motions

seeking, inter alia, dismissal of his case. Pet. App.

lla-16a. The district court denied most of his mo-

tions, but ordered a substantive response from the

government “to the extent [petitioner] challenges his

prosecution under the Second Amendment.” /d. at 16a;

see C.A. App. 70-100. At a subsequent motions hear-

ing, the court “generously” construed petitioner’s bare

“assertions” that the D.C. city ordinance “‘is unconsti-

tutional’” as a Second Amendment challenge to the

remaining count of carrying a firearm on Capitol

Grounds, in violation of 40 U.S.C. 5104(e)(1). Pet.

App. 9a; see id. at 7a. The court rejected that chal-

lenge, observing that this Court’s decision in District

of Columbia v. Heller, 554 U.S. 570 (2008), which had

held a different D.C. gun law to be unconstitutional,

had been “careful in emphasizing that nothing in

[that] opinion should be taken to cast doubt on

longstanding laws forbidding the carrying of firearms

in sensitive places such as schools and government

buildings” and had “stressed that such laws are pre-

sumptively lawful, regulatory measures.” Pet. App.

8a.

3. Petitioner subsequently entered an uncondition-

al guilty plea, pursuant to a plea agreement, to the

Section 5104(e)(1) count. Pet. App. 2a; C.A. App. 152-

161. The plea agreement included a “Waivers” sec-

tion, in which petitioner was informed that his guilty

plea constituted an “agree[ment] to waive certain

4

rights afforded by the Constitution of the United

States and/or by statute or rule.” C.A. App. 156. The

section describing the various “Trial Rights” that

petitioner was waiving included “the right to appeal

[a] conviction” had he been “found guilty after a trial.”

Id. at 156-157. The section describing petitioner’s

waiver of “Appeal Rights” included a specific “waive[r}”

of “the right to appeal the sentence in this case * * *

except to the extent” that the district court imposed a

sentence “above the statutory maximum or guidelines

range” that the court determined to be applicable. /d.

at 157.

The district court, at petitioner’s plea hearing,

“conducted a full inquiry pursuant to Federal Rule of

Criminal Procedure 11.” Pet. App. 2a. During that

colloquy, petitioner acknowledged that he understood

he was “generally giving up [his] rights to appeal.”

Ibid.; see id. at 3a. The court then explained the “ex-

ceptions” to that general waiver rule, informing peti-

tioner that he could “appeal a conviction after a guilty

plea if [he] believe[d] that [his] guilty plea was some-

how unlawful or involuntary or if there is some other

fundamental defect in the[] guilty-plea proceedings”

and that he could appeal his sentence if he “th[ought]

the sentence is illegal.” Jd. at 3a. Petitioner acknowl-

edged that he understood the court’s explanation. Jbid.

The district court accepted the plea, finding that

petitioner “was competent and capable of making a

decision, that he understood the nature and conse-

quences of what he was doing, that he entered his plea

knowingly and voluntarily and of his own free will, and

that there was a factual basis for his entering a plea of

guilty.” C.A. Supp. App. 135. The court sentenced

petitioner to 24 days of imprisonment, to be followed

5

by 12 months of supervised release. C.A. App. 166-

167.

4. Petitioner appealed his conviction and filed a pro

se opening brief, in which he appeared to raise, inter

alia, a Second Amendment challenge to the D.C. ordi-

nance that had formed the basis for a charge in the

original indictment that had later been dismissed. See

Pet. C.A. Br. 12-13, 23-26. A court-appointed amicus

curiae filed a brief, whose arguments petitioner

adopted, see Pet. 9 n.4, contending that the federal

statute under which petitioner had been convicted

“violates the Second Amendment, as applied to a law-

abiding adult citizen’s right to keep legally-owned

firearms in his vehicle parked in an unsecured, public-

ly-aecessible parking lot” and was “unconstitutionally

vague” because it is “exceedingly difficult for someone

to determine that the Maryland Avenue parking lot is

part of the Capitol Grounds” and no proof of scienter

is required. Amicus C.A. Br. 1, 51; see id. at 15-56.

The court of appeals affirmed in an unpublished

per curiam opinion. Pet. App. la-5a. The court per-

ceived petitioner to be “assert{ing] three grounds of

constitutional error and a further claim of statutory

error,” but found “[njone of them” to be “properly

before” the court on appeal. /d. at 3a. The court ob-

served that “[ajlthough the Federal Rules of Criminal

Procedure provide for conditional pleas wherein a

pleading defendant may ‘reserve in writing the right

to have an appellate court review an adverse determi-

nation of a specified pretrial motion,’” id. at 3a-4a

(brackets omitted) (quoting Fed. R. Crim. P. 11(a)(2)),

petitioner’s “plea in the present case contains no such

reservation.” id. at 4a. The court cited “well-

established law that ‘unconditional guilty pleas that

6

are knowing and intelligent waive the pleading de-

fendant’s claims of error on appeal, even constitution-

al claims.’” /d. at 3a (brackets and ellipsis omitted)

(quoting l/nited States v. Delgado-Garcia, 374 F.3d

1337, 1341 (D.C. Cir. 2004)), cert. denied, 544 U.S. 950

(2005). And it determined that neither of the “two

recognized exceptions to this rule”—namely, “‘the

defendant’s claimed right not to be haled into court at

all,’ and a claim ‘that the court below lacked subject-

matter jurisdiction over the case’”—“applies here.”

Id. at 4a (quoting Delgado-Garcia, 374 F.3d at 1341).

ARGUMENT

Petitioner contends (Pet. 12-31) that, notwithstand-

ing his unconditional guilty plea, he was entitled to

challenge the constitutionality of his statute of convic-

tion on appeal. The court of appeals’ unpublished

cisposition is correct; this case would he a poor vehicle

for reviewing the question presented; and no further

review is warranted. This Court recently denied a

petition for a writ of certiorari presenting similar

issues, see Purrilla-Fuentes v. United States, No. 16-

5055 (Nov. 14, 2016), and should do the same here.’

1. Petitioner’s unconditional guilty plea bars him

from challenging the constitutionality of his statute of

conviction on appeal. “By entering a plea of guilty,

the accused is not simply stating that he did the dis-

crete acts described in the indictment; he is admitting

guilt of a substantive crime.” United States v. Broce,

488 U.S. 563, 570 (1989). Accordingly, “[w]hen a crim-

inal defendant has solemnly admitted in open court

' The petitions in Carrasquillo-Peraloza v. United States, No.

16-6076 (filed Sept. 19, 2016), and Muhlenberg v. United States,

No. 16-6135 (filed Sept. 20, 2016), present similar questions.

7

that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional

rights that occurred prior to the entry of the guilty

plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).

Even apart from any view of the guilty plea as a

“waiver” of constitutional claims, Menna v. New York,

423 U.S. 61, 62 n.2 (1975) (per curiam), the defendant’s

admissions preclude any argument inconsistent with

the premise that he violated the substantive criminal

law as described in the indictment. See Broce, 488

U.S. at 570-571; Brady v. United States, 397 U.S. 742,

748 (1970) (“[T]he plea is more than an admission of

past conduct; it is the defendant’s consent that judg-

ment of conviction may be entered without a trial.”).

The Federal Rules of Criminal Procedure addition-

ally make clear that, in the federal system, “tradition-

al, unqualified pleas do constitute a waiver of nonju-

risdictional defects.” Fed. R. Crim. P. 11 advisory

committee’s note (1983) (emphasis added). Under

Rule 11(a)(2), a defendant may, with the consent of the

court and the government, “enter a conditional plea of

guilty or nolo contendere, reserving in writing the

right to have an appellate court review an adverse

determination of a specified pretrial motion.” Fed. R.

Crim. P. 11(a)(2). That Rule was added, in part, to

“aid in clarifying” that an unconditional plea would be

treated as waiving nonjurisdictional arguments. Fed.

R. Crim. P. 11 advisory committee’s note (1983). In

accordance with that principle, petitioner’s plea collo-

quy here included his acknowledgement that an un-

conditional guilty plea meant “generally giving up

[his] rights to appeal,” except for claims that the

“guilty plea was somehow unlawful or involuntary,”

8

that the “guilty-plea proceedings” exhibited “some

other fundamental defect,” or that “the sentence [was}

illegal.” Pet. App. 2a-3a.

2. Petitioner does not dispute that both the statu-

tory right to appeal, and constitutional claims more

generally, are subject to waiver. See, eg., United

States v. Mezzanatto, 513 U.S. 196, 200-201 (1995)

(defendant may waive “many of the most fundamental

protections afforded by the Constitution”). Nor does

he dispute that an unconditional guilty plea in most

circumstances bars a defendant from challenging his

conviction or sentence on direct appeal. He contends

(Pet. 26-31), however, that the bar should not apply to

a constitutional challenge to the statute of conviction.

In his view, the success of such a challenge would

imply a right “to prevent a trial from taking place at

all,” Pet. 28, and this case should therefore be con-

trolled by two decisions—Blackledge v. Perry, 417 U.S.

21 (1974), and Menna v. New York, supra—in which

this Court permitted a defendant who unconditionally

pleaded guilty to challenge the prosecution’s authority

to “halle| [the] defendant into court.” Menna, 423

U.S. at 62 & n.2; see Blackledge, 417 U.S. at 30-31.

Petitioner’s argument is misconceived. “In Black-

ledge and Meuna, * * * the very act of haling the

defendants into court completed the constitutional

violation.” United States v. Miranda, 780 F.3d 1185,

1190 (D.C. Cir. 2015). Blackledge involved a claim of

vindictive prosecution based on increased charges, the

premise of which was that “|t]he very initiation of the

proceedings against [the defendant] in the Superior

Court * * * operated to deny him due process of

law.” 417 U.S. at 30-31. Similarly, Menna involved a

double-jeopardy claim, the premise of which was that

9

the State was “precluded by the United States Consti-

tution from haling [the] defendant into court on [the]

charge.” 423 U.S. at 62. “Neither Blackledge nor

Menna involved claims that a criminal statute violated

the Constitution,” and such a claim does not “fit into

Blackledge and Menna’s exception for claims involv-

ing ‘the very power of the State to bring the defendant

into court.’” United States v. De Vaughn, 694 F.3d

1141, 1154 (10th Cir. 2012) (quoting Blackledge, 417

U.S. at 30), cert. denied, 1383 S. Ct. 2383 (2013). This

Court has recognized that a district court is “author-

ized to render judgment on the indictment” even when

the charges in the indictment are legally defective.

United States v. Williams, 341 U.S. 58, 66 (1951); see

id. at 61.

This Court has, in particular, made clear that the

constitutionality of the statute under which a defend-

ant is charged and convicted is not a question of sub-

ject-matter jurisdiction. Subject-matter jurisdiction

relates to the court’s “power to decide a justiciable

controversy,” Williams, 341 U.S. at 66 (citation omit-

ted), not Congress’s power to enact a statute. As this

Court has explained, “[e]ven the unconstitutionality of

the statute under which the proceeding is brought

does not oust a court of jurisdiction.” Ibid. “Though

the trial court or an appellate court may conclude that

the statute is wholly unconstitutional, * * * it has

proceeded with jurisdiction.” Jd. at 68-69; see Chicot

Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S.

371, 373-378 (1940) (according res judicata effect to

decision notwithstanding that statute under which

court acted was subsequently found unconstitutional).

Petitioner’s citation (Pet. 28-29) of Haynes v. United

States, 390 U.S. 85 (1968), is misplaced. In Haynes, a

10

defendant had raised in district court, before pleading

guilty, an as-applied constitutional challenge to the

statute under which he had been charged, and the

Court permitted the renewal of that challenge on

appeal. See id. at 86-87 & n.2. The government did

not challenge that procedure, however, and the Court

did not analyze it beyond citing a court of appeals

decision. Haynes, moreover, predates the enactment

of Rule 11(a)(2), which provides explicit procedures

for conditional appeals and clarifies that “traditional,

unqualified pleas do constitute a waiver of nonjuris-

dictional defects.” Fed. R. Crim. P. 11 advisory com-

mittee’s note (1983). The drafters of that Rule recog-

nized that this Court had held that “certain kinds of

constitutional objections may be raised after a plea of

guilty” under “the Menna-Blackledge doctrine” and

stated that the conditional plea procedures did not

affect or apply to that doctrine. /bid. (amendment

“should not be interpreted as either broadening or

narrowing the Menna-Blackledge doctrine”). But they

also made clear that merely raising an objection—

even a constitutional one outside the scope of Menna

and Blackledge—does not preserve the right to raise

it on appeal following a guilty plea unless the pre-

scribed procedures for a conditional plea are ob-

served. See Fed. R. Crim. P. 11(a)(2).?

* Petitioner’s passing citation (Pet. 29) of Halbert v. Michigan,

545 U.S. 605, 621-622 (2005), is also misplaced. That case con-

cerned a right to counsel in appellate proceedings and did not

address the question presented here. See id. at 609-610. The

quotation in the petition, moreover, is not a “holding” (Pet. 29) of

this Court, but instead a restatement of a passage from a dissent-

ing opinion by a state-court judge discussing state convictions. See

Halbert, 545 U.S. at 621-622 (quoting People v. Bulger, 614 N.W.2d

11

3. The court of appeals’ conclusion (Pet. App. 3a-

4a) that constitutional challenges to the statute of

conviction may not be raised on appeal following an

unconditional guilty plea accords with the decisions of

other circuits. See United States v. Diaz-Doncel, 811

F.3d 517, 518 (1st Cir. 2016) (“[A] constitutional chal-

lenge to Congress’s ‘jurisdiction’ to pass [a statute]

pursuant to its Article I powers is not a challenge to a

district court’s subject matter jurisdiction over a crim-

inal case brought under [that statute].”); De Vaughn,

694 F.3d at 1153 (“A claim that a criminal statute is

unconstitutional does not implicate a court’s subject

matter jurisdiction.”).

Some circuits have at least in certain circumstances

permitted a federal criminal defendant to raise a con-

stitutional challenge to a criminal statute underlying

the charges to which he has pleaded guilty, based on

the view that the constitutional argument is “jurisdic-

tional.” See, e.g., United States v. Saac, 632 F.3d

1208, 1208 (11th Cir.) (facial challenge), cert. denied,

132 S. Ct. 139 (2011); United States v. Seay, 620 F.3d

919, 922 (8th Cir. 2010) (facial challenge), cert. denied,

562 U.S. 1191 (2011); United States v. Whited, 311

F.3d 259, 262-264 (3d Cir. 2002) (as-applied challenge),

cert. denied, 538 U.S. 1065 (2003); United States v.

Rodia, 194 F.3d 465, 469 (3d Cir. 1999) (facial chal-

lenge), cert. denied, 529 U.S. 1131 (2000); United

States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir.) (facial

challenge), cert. denied, 516 U.S. 1032 (1995) and 516

U.S. 1066 (1996); United States v. Skinner, 25 F.3d

1314, 1317 (6th Cir. 1994) (facial challenge); United

States v. Sandsness, 988 F.2d 970, 971 (9th Cir. 1993)

103, 1383-134 (Mich.), cert. denied, 531 U.S. 994 (2000) (Cavanaugh,

J., dissenting)).

12

(citing United States v. Broncheau, 597 F.2d 1260,

1262 n.1 (9th Cir.) (stating that guilty plea “does not

bar appeal of claims that the applicable statute is

unconstitutional”) (facial and as-applied challenges),

cert. denied, 444 U.S. 859 (1979)); see also United

States v. Bell, 70 F.3d 495, 497 (7th Cir. 1995) (permit-

ting facial challenge “in the circumstances of this

case”).* None of those decisions, however, has recon-

ciled the view that the constitutionality of the statute

of conviction is “jurisdictional” with the contrary au-

thority from this Court, see p. 9, supra.

The Seventh Circuit has stated that it uses the

term “jurisdictional” in this context not in reference to

subject-matter jurisdiction, but as shorthand for any

issue “that stands in the way of conviction—even when

factual guilt is validly established—and prevents a

court from entering any judgment in the case, includ-

ing an acquittal.” United States v. Phillips, 645 F.3d

* Petitioner's citation of unpublished circuit decisions—

particularly ones in which the issue was not disputed, see United

States v. Araudu, 612 Fed. Appx. 177, 178 n.1 (4th Cir. 2015)—

does not demunstrate any established circuit practice that would

bind future circuit panels. Petitioner also faila to show such a

practice by citing (Pet. 18) United States v. Knorries, 29 F.3d 947

(Sth Cir. 1994). That decision, which permitted a constitutional

challenge tv a statute of conviction following an unconilitional

guilty plea, is at oclds with a later decision from the same circuit,

United States v. Sealed Appellant, 526 F.3d 241 (Sth Cir.), cert.

denied, 555 U.S. 1009 (2008), which found a constitutional chal-

lenge to be waived by an unconditivnal guilty plea on the ground

that the challenge was nonjurisdictional. Compare Sealed Appel-

lent, 526 F 3d at 243, with Anoreles, 29 F 3d at 952. Although the

Fifth Circuit follows the earlier pane! decision in the event of a

conflict. GlobeRanger Corp. v. Software AG USA, lae., 836 F.3d

477, 497 (2016), the intracircuit conflict demonstrates that the issue

is not fully settled in that court.

13

859, 862 (2011). The view that any such issue is ap-

pealable following an unconditional guilty plea, how-

ever, overreads Blackledge and Menna. See pp. 8-9,

supra. Similarly, the Eleventh Circuit (in dictum) has

attempted to justify permitting constitutional chal-

lenges on appeal by reference solely to this Court’s

decision in Haynes. See United States v. Palacios-

Casquete, 55 F.3d 557, 561 (1995), cert. denied, 516

U.S. 1120 (1996). Haynes, however, cannot bear that

much weight in this context. See pp. 9-10, supra. And

neither the Seventh nor the Eleventh Circuit decisions

discussed or accounted for Rule 11(a)(2).

Any approach that automatically permits review of

a constitutional challenge to a statute of conviction

notwithstanding an unconditional guilty plea is in

tension with the fact that “virtually all circuits * * *

have addressed constitutional challenges to criminal

statutes and have either refused to address them

because the defendants had neglected to raise them

below, or decided to reach them only upon determin-

ing that the lower court’s failure to address them

constituted ‘plain error,’” United States v. Baucum,

80 F.3d 539, 541 (D.C. Cir. 1996) (per curiam). See id.

at 541 n.2 (citing cases). The disposition of such con-

stitutional claims on waiver or plain-error grounds is

not consistent with the view that such challenges raise

questions of “the courts’ statutory or constitutional

power to adjudicate the case,” which courts would be

obligated to consider and required to review de novo.

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89

(1998); see id. at 98-102. That internal inconsistency

in some circuits’ practices should be addressed in the

first instance by the courts of appeals themselves.

14

See Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam).

4. In any event, the unpublished decision below

would provide a poor vehicle for considering the ques-

tion presented. First, petitioner is particularly ill-

situated to contend that his guilty plea did not consti-

tute a waiver of his constitutional claims. His pre-plea

motions indicate that he was aware of the possibility

of bringing such claims. See p. 3, supra. Yet he plead-

ed guilty notwithstanding the district court’s warning

that by doing so, he would generally be forgoing any

appellate challenges to the conviction not directly tied

to the plea itself, see Pet. App. 2a-3a. Although he in-

dicated that he understood that warning, see ibdid.,

petitioner made no attempt to enter a conditional plea.‘

Second, it is far from clear that petitioner is correct

in suggesting (Pet. 25) that this case would provide

the Court with the opportunity to address the ques-

tion presented in the context of both as-applied and

facial constitutional claims. Petitioner supports the

assertion that both types of arguments were raised in

the court of appeals by citing the amicus brief, whose

arguments he adopted. See Pet. 25 n.8. That brief

raised an as-applied Second Amendment claim, see

Amicus C.A. Br. 1 (stating issue as whether petition-

* Petitioner objects (Pet. 25) that Rule 11(a)(2) requires the gov-

ernment’s consent to a conditional plea. But that requirement

exists to “ensure that conditional pleas will be allowed only when

the decision of the court of appeals will dispose of the case either

by allowing the plea to stand or by such action as compelling

dismixsal of the indictment or suppressing essential evidence,”

something the government “is in a unique position to determine.”

Fed. R. Crim. P. 11 advisory committee’s note (1983).

15

er’s conviction “violates the Second Amendment, as

applied”), and a vagueness argument focused primari-

ly on whether the statute gave adequate notice that

the particular parking lot used by petitioner was part

of the Capitol Grounds, see id. at 50-56. Although the

government’s own brief apparently treated the vague-

ness argument as facial, Gov’t C.A. Br. 26 n.14, it is

not readily apparent that it should in fact be classified

as such, or that the court of appeals itself viewed it

that way. The court’s unpublished decision in this

case relied on precedent that (like its other published

precedent) addresses only whether a defendant is

barred from raising an as-applied constitutional chal-

lenge on appeal following an unconditional guilty plea.

See United States v. Delgado-Garcia, 374 F.3d 1337,

1343 (D.C. Cir. 2004) (cited at Pet. 3a-4a), cert. denied,

544 U.S. 950 (2005); see also Miranda, 780 F.3d at

1189.

Third, petitioner’s constitutional challenges to the

ban on firearms on the Capitol Grounds are insubstan-

tial. With respect to his Second Amendment claim,

this Court explained in District of Columbia v. Heller,

554 U.S. 570 (2008), that “the right secured by the

Second Amendment is not unlimited” and that

“longstanding prohibitions on * * * the carrying of

firearms in sensitive places such as schools and gov-

ernment buildings” are “presumptively lawful.” /d. at

626, 627 n.26; see McDonald v. City of Chi., 561 U.S.

742, 786 (2010) (same). Accordingly, courts of appeals

have consistently rejected Second Amendment chal-

lenges like petitioner’s. See, e.g., Bonidy v. United

States Postal Serv., 790 F.3d 1121, 1125-1127 (10th

Cir. 2015) (rejecting Second Amendment challenge to

prohibition on firearms in parking lot adjacent to post

16

office), cert. denied, 136 S. Ct. 1486 (2016); United

States v. Masciandaro, 638 F.3d 458, 460, 473-474 (4th

Cir.), (rejecting Second Amendment challenge to

conviction for possessing a firearm in a national-park

parking lot), cert. denied, 132 S. Ct. 756 (2011).

With respect to petitioner’s vagueness claim, he

faces a particularly high hurdle, because he forfeited

the claim by failing to raise it in district court. See

Gov't C.A. Br. 29-31. He thus could prevail on appeal

only if he satisfies the stringent requirements of plain-

error review, see Fed. R. Crim. P. 52(b), including

that any error was both “obvious” and “seriously af-

fect(cd| the fairness, integrity or public reputation of

judicial proceedings,” United States v. Marcus, 560

U.S. 258, 262 (2010) (citation and internal quotation

marks omitted). Petitioner cannot show any obvious

error—or, indeed, any error at all—in his conviction,

when the term “Capitol Grounds” is clearly defined hy

statute to inelude “all grounds” bounded by certain

strects, 40 U.S.C. 5102(c)(1)(C), thereby “providling] a

person of ordinary intelligence fair notice” of what is

covered, United States v. Williams, 553 U.S. 285, 304

(2008). Nor ean he show any fundamental unfairness

in his conviction, when the parking lot in question is

clearly marked as for permit-holders only and was

chosen by petitioner specifically because it gave him

ready access to congressional buildings. See Gov't

C.A. Br. 5. Review of petitioner’s procedural claim is

unwarranted in a case in which his underlying merits

arguments so clearly lack merit.

5. Not only is review unwarranted here because

petitioner's underlying claims lack merit, but review is

unwarranted to address any systemic concerns in

17

federal criminal justice.” The only cases that could

even potentially be affected would be those in which a

defendant has not expressly preserved his ability to

raise a constitutional claim on appeal by entering a

conditional plea under Rule 11(a)(2). Many of those,

however, will involve written plea agreements with

explicit appeal waivers that would independently bar a

challenge to the statute of conviction on appeal, re-

gardless of how the question presented in this case is

resolved. See, e.g., Br. in Opp. at 5-7, Parrilla-

Fuentes, supra (No. 16-5055); Br. in Opp. at 5-8,

Muhlenberg v. United States, No. 16-4135 (filed Sept.

20, 2016); compare Menna, 423 U.S. at 61-62 (double-

jeopardy claim may be raised on appeal following

unconditional guilty plea), with Ricketts v. Adamson,

483 U.S. 1, 8-10 (1987) (double-jeopardy claim may be

expressly waived in plea agreement).

Of the remaining cases, it is highly unlikely that

many defendants would ultimately benefit from the

ability to challenge their statutes of conviction on

direct review. In only one of the circuit decisions cited

by petitioner (Pet. 17-23) as allowing a constitutional

challenge to the statute of conviction on appeal follow-

ing an unconditional guilty plea—l/nited States v.

Knowles, 29 F.3d 947 (5th Cir. 1994)—did the court of

appeals actually reverse the conviction based on that

challenge. And the court in that case noted that the

recent circuit precedent on which it relied to find a

® Petitioner does not claim that this Court's intervention to re-

solve the question presented would necessarily govern state prac-

tice. Although both Menna and Blackledge arose from state

convictions, neither decision purported to displace the usual state

prerogative to adopt rules to govern the proper presentation and

preservation of federal claims following a guilty plea.

18

constitutional infirmity in the statute, Uiited States v.

Lopez, 2 F.3d 1342 (5th Cir. 1993), aff’d, 514 U.S. 549

(1995), would have justified relief (as a substantive

rule) even on collateral postconviction review, see

Kunoieles, 29 F.3d at 951. A defendant who seeks the

benefit of a substantive ruling establishing that the

statute of conviction is unconstitutional could aceord-

ingly seek relief under 28 U.S.C. 2255. The same is

true of any defendant whose decision to plead was the

product of counsel’s erroneous failure to identify a

substantial constitutional claim. See Hill v. Lockhart,

474 U.S. 52 (1985). The question whether a defendant

who pleaded guilty unconditionally may himself raise

a constitutional challenge to the statute of conviction

through the particular mechanism of a direct appeal is

accordingly of limited practical importance.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

IAN HEATH GERSHENGORN

Acting Solicitor General

LESLIE R. CALDWELI.

Assistant Attorucy Geonucral

FINNUALA K, TESSIER

Attorney

DECEMBER 2016