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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0713%3A03. Public record. Not legal advice.