Respondents Brief — Class v. United States, 137 S. Ct. 1065 (2017) (No. 16-424)
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No. 16-424
In the of the @inited States
RODNEY CLASS, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE UNITED STATES
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
KENNETH A. BLANCO
Acting Assistant Attorney
General
MICKAEL R. DREEBEN
Deputy Solicitor General
ERIc J. FEIGIN
Assistant to the Solicitor
General
JOHN-ALEX ROMANO
Attorney
Department of Juxtice
WwW : .C. 20530-0001
SupremeCtBriefs@usdoj. gov
(202) 514-2217
QUESTION PRESENTED
Whether petitioner is entitled to challenge the con-
stitutionality of his statute of conviction on appeal, not-
withstanding his entry of an unconditional guilty plea in
which he did not seek to preserve any right to pursue
such a challenge.
(T)
TABLE OF CONTENTS
Rule involved ..
Statement...
Summary of argument....
Argument:
Petitioner’s appellate challenge to his statute of
conviction is foreclosed by his unconditional —
plea.... - eailenaindenbe
A. A challenge to ‘the constitutionality of
a substantive criminal statute is a
nonjurisdictional claim that can be
Ee
B. Federal Rule of Criminal Procedure 11(a)(2)
requires a defendant to enter a conditional
plea in order to challenge the constitutionality
of the statute of conviction on appeal .....................
1. Rule 11(a)(2) precludes appeal of pretrial
issues that were not expressly reserved in
the defendant’s guilty plea ..................c0:0c00000+
2. Rule 11(a)(2)’s preservation requirement
applies to a claim that the statute of
conviction is unconstitutional ............................
3. Requiring express preservation of
constitutional challenges to statutes
through a conditional plea furthers the
interests underlying Rule 11(a)(2)....................
C. An unconditional guilty plea inherently
relinquishes an appellate challenge to the
constitutionality of the statute of conviction ..........
1. Aconstitutional challenge to the statute
of conviction is inconsistent with
unconditional consent to a judgment of
conviction that presumes legal guilt .................
(IIT)
14
33
IV
Table of Contents—Continued: Page
2. No exception to the preclusive effect of a
guilty plea allows for an appellate
challenge to the constitutionality of the
statute of CONVICTION............000:-00-csccrsssccsessesseeseess 39
3. Petitioner’s reliance on Blackledge and
Menna is misplaced .............cccceeeeeeeeeresenereeeseereee 44
D. Petitioner knowingly waived his appellate
= ins the _— ssisasnd ccidpeatucdeineasctnenimentie 48
Conclusion... aidiiiaiiibidtpnssnialibibemmapinvinupeneianebie .-. 62
Appendix... ..la
TABLE OF AUTHORITIES
Cases:
Abney v. United States, 431 U.S. 651 (1977) .......... 21, 22, 41
Bank of Nova Scotia v. United States,
EE 22, 29
Blackledge v. Allison, 431 U.S. 63 (1977) .....c0ceccseseevenersees 15
Blackledge v. Perry, 417 U.S. 21 (1974) .0.......ccccccesee passim
Bond v. United States, 134 S. Ct. 2077 (2014) ............00000- 32
Bonidy v. United States Postal Serv., 790 F.3d 1121
(10th Cir. 2015), cert. denied, 136 S. Ct. 1486 (2016)....... 21
Bousley v. United States, 523 U.S. 614 (1998)........ 20, 37, 38
Boykin v. Alabama, 395 U.S. 238 (1969)..........0.-.......0- 34, 45
Brady v. United States,
4: knee 34, 35, 36, 38, 47
Carr v. United States, 560 U.S. 438 (2010) .0...0.....ccccccceceeee 33
Carroll v. United States, 354 U.S. 394 (1957) .............000004. 22
Continental Cas. Co. v. United States,
a. cssenesensoesnnsciionn 24
Cooper Indus., Inc. v. Aviall Servs., Inc.,
iain iitelietncidecindanpensasnasenpenentecncsons 23
Custis v. United States, 511 U.S. 485 (1994).........cccccceceeee 17
Vv
Cases—Continued: Page
Davila v. Davis, No. 16-6219 (June 26, 2017)............0.00008 21
Davis v. United States, 417 U.S. 333 (1974) .0........:cc.ccccc0ee 20
District of Columbia v. Heller, 554 U.S. 570 (2008)....... 5, 21
Ellis v. Dyson, 421 U.S. 426 (197B).........c:ccccseceesseereeeseereneees 43
Florida v. Nixon, 543 U.S. 175 (2004) .0........:.cccecceecees 34, 36
Friedenstein v. United States, 125 U.S. 224 (1888)........... 22
Haring v. Prosise, 462 U.S. 306 (1983) ................cccceeeee 45
Haynes v. United States, 390 U.S. 85 (1968)........... 29, 47, 48
Hill v. Lockhart, 474 U.S. 52 (1985) .........ccccccecceseeseeseee 39, 51
Hohn v. United States, 524 U.S. 236 (1998)................ccc0008 48
Johnson v. United States, 135 S. Ct. 2551 (2015) .......... 21
Kercheval v. United States, 274 U.S. 220 (1927)................. 34
Lefkowitz v. Newsome, 420 U.S. 283 (1975)............ 14, 30, 35
Libretti v. United States, 516 U.S. 29 (1995) ............ccccceeee 36
Loving v. Virginia, 388 U.S. 1 (1967) ........ccecerrereeenreeeeees 48
Machibroda v. United States, 368 U.S. 487 (1962) ............ 34
Manrique v. United States, 137 S. Ct. 1266 (2017)............ 22
Martinez v. Court of Appeal, 528 U.S. 152 (2000).............. 22
McCutcheon v. FEC, 184 S. Ct. 1484 (2014) ..........2..cccceeseee 48
McDonald v. City of Chicago, 561 U.S. 742 (2010) ............ 21
McManzxn v. Richardson, 397 U.S. 759 (1970)................00+ 34
Menna v. New York, 423 U.S. 61 (1975)......0icccrceeevree passim
Michigan v. DeFillippo, 443 U.S. 31 (1979) ........ccceeceeevee 41
Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017).............0+ 29
Montgomery v. Louisiana,
i Laan 14, 19, 42
North Carolina v. Alford, 400 U.S. 25 (1970)......... 36, 37, 45
Palmer v. District of Columbia, 59 F. Supp. 3d 173
CEE: HIT declreicnrennccienniteiidtbbebiseaitinmiaindnaateunieemmnecsneceennesmnnen 4
Parker v. North Carolina, 397 U.S. 790 (1970) ........:00000+- 38
Peretz v. United States, 501 U.S. 923 (1991)................cs000 17
Vi
Cases—Continued: Page
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1996)........ 18
Santobello v. New York, 404 U.S. 257 (1971) .........c0cccec000 42
Shaffer v. United States, 435 F.2d 168 (9th Cir. 1970) ...... 27
Siebold, Ex parte, 100 U.S. 371 (1880) ...................... 16, 42
Small v. United States, 544 U.S. 385 (2005) .............0......... 33
Steel Co. v. Citizens for a Better Env't,
i. ssestnsnenenintiie 16
Tollett v. Henderson, 411 U.S. 258 (1973) ..............00. passim
Toucey v. New York Life Ins. Co.,
ES 48
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)....... 31
United States v. Alvarez, 567 U.S. 709 (2012) ..............0000 33
United States v. Baucum, 80 F.3d 539 (D.C. Cir.),
cert. denied, 519 U.S. 897 (1996) ...............ccecccccececeeseeeeenees 18
United States v. Broce, 488 U.S. 563 (1989)............... passim
United States v. Cotton, 535 U.S. 625 (2002).......... 16, 17, 26
United States v. Cox, 464 F.2d 937 (6th Cir. 1972) ...... 27, 29
United States v. De Vaughn, 694 F.3d 1141
(10th Cir. 2012), cert. denied,
EE 36, 40, 45
United States v. Delgado-Garcia, 374 F.3d 1337
(D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005) ...... 9, 10
United States v. Di Re, 382 U.S. 581 (1948) .........-...c 19
United States v. Dominguez Benitez,
a seusnnensonsenaotinites 25
United States vy. Hollywood Motor Car Co.,
REELS AES 41
United States v. Jackson, 390 U.S. 570 (1968) ................... 47
United States v. Marcus, 560 U.S. 258 (2010).................... 18
United States v. Masciandaro, F.3d 458
(4th Cir.), cert. denied, 565 U.S. 1058 (2011)................... 21
Vil
Cases—Continued: Page
United States v. Miranda, 780 F.3d 1185
ES Re 41
United States v. Olano, 507 U.S. 725 (1998) ..........cccccceceeeee 17
United States v. Ruiz, 586 U.S. 622 (2002) ............0.000- 38, 51
United States v. Ury, 106 F.2d 28 (2d Cir. 1989) ............... 29
United States v. Vonn, 535 U.S. 56 (2002) ............0..00..- 25, 50
United States v. Watson, 423 U.S. 411 (1976) ..0.........00.. 19
United States v. Williams,
ae 10, 16, 18, 41, 42, 43
Wainwright v. Sykes, 433 U.S. 72 (1977) ........-.ccceceeeceeeenees 17
Welch v. United States, 136 S. Ct. 1257 (2016).............. 14,19
Wood v. Allen, 558 U.S. 290 (2010) ...........cccccccccccseceeeee 50, 51
Yakus v. United States, 321 U.S. 414 (1944)... ee 17
Yee v. City of Escondido, 503 U.S. 519 (1992).................. 51
Constitution, statutes, and rules:
U.S. Const.:
ETE Se Ne eee ROO DEE ee 33
ERT RES EC nce Oe 4, 5, 8, 21, 32
Amend. IV SE a Deen NCO 46
Amend. V (Double Jeopardy Clause) ..................39, 40
[ESE A se 32
Amend. XIV (Due Process Clause) .......................... 39
CS RE TCE Ae ee een 22
a EE nC eee ES 22
EERE SEE RSE er enn ne roe a 14, 19, 20
A ET 20
EE ee 8, 22
ee 2,4,5
VIil
Rules—Continued: Page
Fed. R. Crim. P.:
IE Ce eee aR al 24, 25, 50
a i naeaeial passti
Se TRE ace aaa REE ee RENIN Ser 61
I ae aanciens 24
ET Ne aa ee ee eRe TON 25
Rule 11 advisory committee’s note (1983)........ passim
LETS wey EOP SLT. fo 14
EE Snr eer eee CEE heap Ee 14
ENE a eae Meee een eo oer 14
ERC eee eRe 24
ESRI SRG om renner 24
sho cin ini tadaicitiedainiadieninegindianpininminiiie 24
SEES ER UAE Onecare a amar nn 25
ics taincesciensthtpioteesencicieaneonsinnpnibiqnangeaineamiaiis 51
Miscellaneous:
Black’s Law Dictionary:
RES EE A aces ae eee NCAR tr 26
(10th ed. 2014)... eka cosas
John D. Botsford, Peaidut Conditioned Guilty
Pleas, 26 UCLA L. Rev. 360 (1978) .............ccccccsceeseeees 27
In the Supreme Court of the GAnited States
No. 16-424
RODNEY CLASS, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE UNITED STATES
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 unreported. The dis-
trict court’s opinion and order deferring in part and
denying in part petitioner’s motion to dismiss the indict-
ment (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, and the petition was
granted on February 21, 2017. The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).
(1)
2
RULE INVOLVED
Federal Rule of Criminal Procedure 11(a)(2) pro-
vides:
Conditional plea. With the consent of the court and
the government, a defendant may enter a conditional
plea of guilty or nolo contendere, reserving in writ-
ing the right to have an appellate court review an ad-
verse determination of a specified pretrial motion. A
defendant who prevails on appeal may then withdraw
the plea.
STATEMENT
Following a guilty plea in the United States District
Court for the District of Columbia, petitioner was con-
victed on one count of unlawfully carrying and having
readily accessible a firearm on Capitol Grounds, in vio-
lation of 40 U.S.C. 5104(e)(1). C.A. App. 165. He was
sentenced to 24 days of imprisonment, to be followed by
12 months of supervised release. /d. at 166-167. The
court of appeals affirmed. Pet. App. la-5a.
1. Shortly before noon on a weekday, petitioner
parked his Jeep in a permit-only parking lot on “the 200
block of Maryland Avenue, SW, Washington, D.C.,
which is part of the Capitol Grounds.” J.A. 24; see Gov’t
C.A. Br. 5. That parking lot, which petitioner chose for
its proximity to congressional office buildings, is re-
served for employees of the House of Representatives.
Gov't C.A. Br. 5. The parking lot had signs warning that
it was open only to permit-holders, and street barriers,
a guard station, and other indicators of restricted access
were visible. /bid.; see Pet. Br. 6.
After parking there, petitioner walked to the Capitol
and to the House and Senate office buildings in order to
have paperwork appointing him a “Private Attorney
General” stamped at the offices of various committees
3
and Members of Congress. Gov’t C.A. Br. 5. While pe-
titioner was inside, an agent of the United States Capi-
tol Police noticed that his Jeep was parked in the
employees-only lot without a permit. /d. at 6. Through
the Jeep’s side windows, the agent saw what appeared
to be a large blade and a gun holster. /bid.; J.A. 24. She
called for backup. Gov’t C.A. Br. 6. She also ran a back-
ground check on the Jeep, discovering that it was reg-
istered to petitioner. /bid.
About two hours after he had arrived, petitioner
emerged from the Capitol and returned to the re-
stricted lot. Gov’t C.A. Br. 6. When the Capitol Police
intercepted him, he admitted that he was the owner of
the Jeep and that the Jeep contained weapons. J/bid.
After he withdrew his initial consent for a search of the
Jeep, the officers obtained a search warrant. /d. at 6-7.
The search uncovered, inter alia, a 9mm Ruger pistol
loaded with eight rounds, including one round in the
chamber; several loaded magazines containing 35 addi-
tional 9mm rounds; a box of 50 additional 9mm rounds;
a .44 caliber Taurus pistol loaded with seven rounds, in-
cluding one round in the chamber; an additional 90
rounds of .44 caliber ammunition; a .44 caliber Henry
rifle loaded with 11 rounds, including one round in the
chamber; and an additional 55 rounds of .44 caliber am-
munition. J.A. 25; C.A. App. 70 n.1. All of the guns and
ammunition were stored in unlocked bags in either the
passenger area or between that area and the rear of the
Jeep. J.A. 25.
Petitioner was later questioned by the F BI at Capi-
tol Police headquarters. Gov’t C.A. Br. 7. He said that
he was a “Constitutional Bounty Hunter” and a “Private
Attorney General” who traveled the nation with guns
and other weapons to enforce federal criminal law
4
against judges whom he believed had acted unlawfully.
Ibid. He explained that he had come to the Capitol and
the House and Senate Office Buildings to have a “Com-
mission by Declaration” signed. /bid. He also told the
agents that he was planning to take his weapons with
him to bring charges against a federal judge in Penn-
sylvania, although he disclaimed any intention to use
the weapons against the judge. /bid.
2. A grand jury indicted petitioner on one count of
unlawfully carrying or having readily accessible fire-
arms on the 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) (LexisNexis 2001).
J.A. 20-21. The latter charge was ultimately dismissed
after the United States District Court for the District
of Columbia, in another case, held the D.C. Code provi-
sion unconstitutional. C.A. App. 122-123; C.A. Supp.
App. 134; see Palmer v. District of Columbia, 59 F. Supp.
3d 173 (D.D.C. 2014).
Petitioner eventually waived his right to counsel and
was appointed standby counsel. J.A. 2-3. Petitioner
filed a number of pro se motions seeking, inter alia, dis-
missal of his case. Pet. App. lla-16a. He included as-
sertions about the Second Amendment. C.A. App. 32-
33; see id. at 36, 42-43, 46. Petitioner also faulted the
government for not posting signs that would have in-
formed him of the unlawfulness of his conduct, but he
did not directly argue that Section 5104(e)(1) was
unconstitutionally vague, nor did the government per-
ceive him to be raising such an argument. See id. at 39,
65, 128; see id. at 124, 130, 138; see also Gov’t C.A. Br.
29-31. The district court denied most of petitioner’s mo-
tions, likewise without perceiving him to have raised a
due process vagueness claim. C.A. App. 70-100. The
5
court did, however, order a substantive response from
the government “to the extent [petitioner] challenges
his prosecution under the Second Amendment” and on
certain other issues. Pet. App. 16a; see C.A. App. 70-
100.
At a subsequent motions hearing, the district court
“generously” construed petitioner’s minimal “asser-
tions” that the D.C. city ordinance included in his origi-
nal indictment “‘is unconstitutional’” as a Second
Amendment challenge to the federal charge 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 re-
jected that challenge. /d. at 8a. The court observed that
this Court’s decision in District of Columbia v. Heller,
554 U.S. 570 (2008), which had held a different D.C. or-
dinance unconstitutional, had been “careful in empha-
sizing 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 gov-
ernment buildings” and had “stressed that such laws
are presumptively lawful, regulatory measures.” Pet.
App. 8a.
3. Petitioner’s case was originally scheduled for a
trial, but petitioner (who had been released on bond)
failed to appear for it, notifying the district court by let-
ter that he would no longer participate in the proceed-
ings. Gov't C.A. Br. 4. Petitioner was arrested on a
bench warrant and reindicted on one count of violating
Section 5104(e)(1). Jbid. He subsequently entered an
unconditional guilty plea, pursuant to a plea agreement,
to that count. Pet. App. 2a; J.A. 29-47.
a. The plea agreement provided that in considera-
tion for petitioner’s guilty plea, the government agreed,
inter alia, not to prosecute petitioner for his “failure
6
to appear for trial *** in violation of 18 U.S.C.
§ 3146(a)(1).” J.A. 31. The government also agreed to
seek a sentence at the low end of the estimated Sentenc-
ing Guidelines range, which was zero to six months of
imprisonment and a $500 to $5000 fine. J.A. 33-35.
The plea agreement included a “Waivers” section
that informed petitioner that his guilty plea constituted
an “agree[ment] to waive certain rights afforded by the
Constitution of the United States and/or by statute or
rule.” J.A. 38-39. The section describing the various
“Trial Rights” that petitioner waived included “the
right to appeal [a] conviction” had he been “found guilty
after a trial.” J.A. 39-40. The section describing peti-
tioner’s waiver of “Appeal Rights” included a specific
“waivelr|” 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 appli-
cable. J.A. 40-41.
b. The district court held a plea hearing, at which it
“conducted a full inquiry pursuant to Federal Rule of
Criminal Procedure 11.” Pet. App. 2a; see J.A. 48-94.
Petitioner pleaded guilty unconditionally, without in-
voking the procedures of Rule 11(a)(2), whereby “[wl]ith
the consent of the court and the government, a defend-
ant may enter a conditional plea of guilty or nolo con-
tendere, reserving in writing the right to have an appel-
late court review an adverse determination of a speci-
fied pretrial motion.” Fed. R. Crim. P. 11(a)(2).
The district court explained to petitioner that by en-
tering his plea, he “would be generally giving up [his]
rights to appeal.” J.A. 63. Petitioner indicated that he
understood. /bid. The court then described “excep-
7
tions” to that general rule: for an appeal of his convic-
tion “if [he] believe[d] that [his] guilty plea was some-
how unlawful or involuntary or if there [were] some
other fundamental defect in the[] guilty-plea proceed-
ings,” and for an appeal of his sentence “if [he] thLought |
the sentence [was] illegal.” Jbid. Asked if he under-
stood, petitioner responded, “Yeah. Pretty much.”
Ibid.
The district court then added, “[njow, if you plead
guilty in this case and I accept your guilty plea, you'll
give up all of the rights I just explained to you, aside
from the exceptions that I mentioned, because there
will not be any trial, and there will probably be no ap-
peal.” J.A. 64. The court informed petitioner that he
“may also have a right to appeal [his] sentence if it ex-
ceeds the Sentencing Guideline Range” and that he
“could also challenge [his] conviction or sentence based
on newly discovered evidence or a claim of ineffective
assistance of counsel.” /iid. Petitioner indicated that
he understood. /bid.
After confirming that petitioner was willing to “give
up” his trial rights, the district court had the following
exchange with petitioner:
THE COURT: Do you want to give up most of your
rights to an appeal as well?
[PETITIONER]: Other than what you mentioned,
yes.
THE COURT: Aside from those exceptions.
J.A. 66.
Later in the colloquy, the district court discussed
with petitioner the appeal-waiver provisions of his plea
agreement. J.A. 76. The court told petitioner that “un-
der this plea agreement, you are giving up your right to
8
appeal your conviction and challenge the sentence I im-
pose, unless the sentence exceeds the statutory maxi-
mum of the Guidelines Range or you claim newly dis-
covered evidence or ineffective assistance of counsel.”
Ibid. Asked if he understood, petitioner responded,
“Yes.” J.A. 76-77.
The district court accepted the plea, finding that pe-
titioner “was competent and capable of making a deci-
sion, that he understood the nature and consequences
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.” J.A.
96. The court sentenced petitioner to time served
(24 days of imprisonment), to be followed by 12 months
of supervised release, and a $250 fine. J.A. 11.
4. Petitioner appealed his conviction and filed a pro
se opening brief, asserting factual, procedural, and sub-
stantive errors in the district-court proceedings. Pet.
C.A. Br. 12-32. He relied on, inter alia, the Second
Amendment. See id. at 12-13, 23-26.
a. The court of appeals appointed an amicus, whose
arguments petitioner adopted. See Pet. 9 & n.4. The
amicus brief argued that the federal statute under
which petitioner had been convicted, 40 U.S.C. 5104(e),
“violates the Second Amendment, as applied to a law-
abiding adult citizen’s right to keep legally-owned fire-
arms in his vehicle parked in an unsecured, publicly-
accessible parking lot” on the Capitol Grounds. C.A. Ami-
cus Br. 1. It also argued that the statute was “unconsti-
tutionally vague” because it is “exceedingly difficult for
someone to determine that the Maryland Avenue park-
ing lot is part of the Capitol Grounds” and the statute
does not require proof of scienter. Jd. at 4, 51.
9
The government’s brief contended, inter alia, that
petitioner’s unconditional guilty plea, which had not in-
voked the conditional-plea procedures prescribed by
Federal Rule of Criminal Procedure 11(a)(2), precluded
him from raising those arguments on appeal. Gov’t C.A.
Br. 21-29. The government also observed that “(nJeither
Appellant nor Amicus argues that, under the Second
Amendment, the firearms provision of the Capitol
Grounds security statute is facially unconstitutional,”
id. at 26 n.14, and contended that the vagueness argu-
ment had been forfeited by petitioner’s failure to raise
it in district court, id. at 29-31.
b. The court of appeals affirmed. Pet. App. la-5a.
The court perceived petitioner to be “assert{ing] three
grounds of constitutional error and a further claim of
statutory error,” but held that “[njone of them” was
“properly before” the court on appeal. /d. at 3a.
The court of appeals observed that “[a]lthough the
Federal Rules of Criminal Procedure provide for condi-
tional pleas wherein a pleading defendant may ‘reserve
in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion,’”
Pet. App. 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 are knowing and intelligent waive the pleading de-
fendant’s claims of error on appeal, even constitutional
claims.’” Jd. at 3a (brackets and ellipsis omitted) (quot-
ing United 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
10
claim ‘that the court below lacked subject-matter juris-
diction over the case’”—“applies here.” /d. at 4a (quot-
ing Delgado-Garcia, 374 F.3d at 1341).
SUMMARY OF ARGUMENT
The court of appeals correctly held that petitioner
was not entitled to consent unconditionally to his con-
viction in district court, then attack the statute under-
lying his conviction on appeal. Petitioner had ample
ways to preserve and present his constitutional claims.
But he availed himself of none of them. Instead, peti-
tioner relinquished his current claims by his failure to
follow the conditional-plea procedure ii. Federal Rule of
Criminal Procedure 11(a)(2). Raising those claims on
appeal is also inconsistent with his admission of legal
guilt and unconditional consent to entry of a judgment
of conviction. And he additionally waived the right to
appeal on those claims during his plea colloquy. Con-
trary to petitioner’s contention, neither Blackledge v.
Perry, 417 U.S. 21 (1974), which involved a prosecutorial-
vindictiveness claim, nor Menna v. New York, 423 U.S.
61, 62 (1975) (per curiam), which involved a double-
jeopardy claim, allows a defendant automatically to
challenge his statute of conviction on appeal, irrespec-
tive of any forfeiture, admission, or waiver. The judg-
ment should be affirmed.
A. As petitioner appears to acknowledge (Br. 30
n.4), a constitutional challenge to the statute underlying
a criminal charge is not jurisdictional, does not impli-
cate the power of the court to hear the case, and can be
forfeited, waived, or otherwise precluded. See United
States v. Williams, 341 U.S. 58, 66-69 (1951); Pet. Br. 30
n.4. Courts regularly decline to entertain such chal-
lenges, or review them only for plain error, when they
have not been preserved. Petitioner’s argument that
11
such claims deserve special exemption from normal
waiver principles relies on retroactivity doctrines that
are inapplicable here. If petitioner were attacking his
conviction based on a recent binding judicial decision
definitively establishing a new retroactive constitu-
tional rule, he might well be entitled to relief. Although
a defendant can forfeit, waive, or relinquish his right
personally to pursue a legally uncertain claim—and
does so by pleading guilty—a guilty plea does not im-
plicitly or explicitly acquiesce in a punishment that has
clearly been shown to lack any tenable legal basis. But
a defendant seeking to substantively invalidate his con-
viction in the first instance on appeal, without having
reserved the right to do so, cannot evade standard for-
feiture, waiver, and relinquishment doctrines that pre-
clude such appeals.
B. The exclusive procedure for preserving a consti-
tutional] challenge to a federal criminal] statute to which
a defendant pleads guilty is the conditional-plea proce-
dure set forth in Federal Rule of Criminal Procedure
11(a)(2). Under that Rule, “[w]ith the consent of the
court and the government, a defendant may enter a con-
ditional 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). The Rule enhances the final-
ity of guilty pleas by “clarifying the fact that traditional,
unqualified pleas do constitute a waiver of nonjurisdic-
tional defects,” Fed. R. Crim. P. 11 advisory commit-
tee’s note (1983), like the defects petitioner asserts
here. Neither the text of the Rule nor the Advisory
Committee Notes contains any exception for appellate
claims challenging the constitutionality of the statute of
conviction. The Advisory Notes instead make clear that
12
the Rule is designed to preclude, as broadly as possible,
a defendant from silently reserving issues for appeal
without first notifying the court and the government of
the respects in which he views his guilty plea to be in-
conclusive. The courts and the government agree in
many cases to conditional pleas that preserve constitu-
tional claims, including claims that the charging statute
is unconstitutional. Petitioner was not entitled to by-
pass that procedure while obtaining its benefits.
C. Even aside from Rule 11(a)(2), a defendant’s
unconditional consent to entry of a judgment of convic-
tion is inherently incompatible with the implicit reser-
vation of a claim that relies on unestablished law to con-
test his guilt. “A plea of guilty and the ensuing convic-
tion comprehend all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt
and a lawful sentence.” United States v. Broce, 488 U.S.
563, 569 (1989). In the absence of a new substantive
constitutional rule, a defendant may not renounce the
fundamental premise of his plea—his consent to the en-
try of legal judgment against him—by attacking the
statute on which the judgment is premised. A defend-
ant who voluntarily pleads guilty has made a strategic
choice in which he accepts an adverse legal judgment in
return for sentencing considerations and other poten-
tial benefits. So long as his plea knowingly and intelli-
gently acquiesces to his conviction—which does not re-
quire his subjective awareness of potential defenses
that the plea forecloses—it precludes an appellate at-
tack on the presumptively lawful basis for that convic-
tion.
Because a challenge to the statute of conviction is an
attack on the conviction, rather than on the initiation of
the proceedings through which the plea was obtained, it
13
is different in kind from the types of claims that this
Court identified in Blackledge and Menna as exceptions
to the general preclusive effect of a guilty plea. The
prosecutorial-vindictiveness and double-jeopardy claims
in those cases contended that the prosecution was “pre-
cluded *** from haling a defendant into court on a
charge.” Menna, 423 U.S. at 62; see Blackledge, 417 U.S.
21. They thus challenged the act of commencing the
prosecution and thereby forcing the defendant to enter
a plea—an act to which the ensuing plea cannot be
deemed to consent. Here, in contrast, the act of bring-
ing a prosecution under a presumptively valid statute is
not itself subject to attack. An appellate challenge to
the statute’s constitutionality contests not the filing of
the charge but the conviction—the very thing to which
the defendant acquiesced by pleading guilty.
D. The particular guilty plea in this case precludes
petitioner’s appeal for the additional reason that it was
entered following multiple judicial warnings about its
preclusive effect. The district court explained, and pe-
titioner said he understood, that an appeal following the
plea would generally be barred. None of the exceptions
the court listed can fairly be construed to cover the
claims that petitioner now raises. Petitioner’s sugges-
tion that his plea was not knowing and intelligent be-
cause he was unaware of its preclusive effect is outside
the question presented, factually incorrect, and legally
meritless. Even assuming petitioner did not fully com-
prehend the district court’s explanation of the plea’s
preclusive scope, such perfect understanding is not re-
quired for the plea to be valid.
14
ARGUMENT
PETITIONER’S APPELLATE CHALLENGE TO HIS
STATUTE OF CONVICTION IS FORECLOSED BY HIS
UNCONDITIONAL GUILTY PLEA
A federal defendant who wishes to raise a constitu-
tional challenge to the substantive criminal statute un-
derlying his prosecution has multiple potential avenues
for doing so. As an initial matter, he can bring the chal-
lenge in a pretrial motion to dismiss the indictment.
Fed. R. Crim. P. 12(b)(1). If that motion is unsuccessful,
he can preserve his claim for appeal by going to trial
(where he can raise the claim again by moving for ac-
quittal, see Fed. R. Crim. P. 29(a) and (c)); by offering
to stipulate the facts necessary to prove guilt while
maintaining his constitutional claim to legal innocence,
see Lefkowitz v. Newsome, 420 U.S. 283, 290 n.7 (1975);
or by seeking to enter a conditional plea in which his
acceptance of legal guilt is qualified by his continued
reservation of his constitutional claim, see Fed. R.
Crim. P. 11(a)(2). A defendant can also later seek the
benefit of a judicial decision that retroactively validates
his claim and vitiates the government’s authority to con-
tinue to punish him. See 28 U.S.C. 2255; see also, e.g.,
Welch v. United States, 136 S. Ct. 1257, 1264-1265
(2016); Montgomery v. Louisiana, 136 S. Ct. 718, 732
(2016).
What a defendant cannot do is unqualifiedly consent
to conviction by entering an unconditional plea of guilty,
then turn around and attack that conviction on appeal
by challenging the presumptive validity of the statute
underlying it. The many systemic benefits of guilty
pleas—prompt resolution of criminal charges, conser-
vation of judicial and prosecutorial resources, and the
potential for more favorable sentencing terms—“can be
15
secured * * * only if dispositions by guilty plea are ac-
corded a great measure of finality.” Blackledge v. Alli-
son, 431 U.S. 63, 71 (1977). Permitting petitioner here
to challenge his conviction on appeal on grounds that he
did not reserve in a conditional plea under Federal Rule
of Criminal Procedure 11(a)(2), that are inconsistent
with his admission of legal guilt, and that he expressly
waived his right to raise during the plea colloquy would
undermine both the finality of guilty pleas and the or-
derly procedures developed to ensure it.
Petitioner errs in relying on the Court’s treatment of
the prosecutorial-vindictiveness and double-jeopardy
claims in Blackledge v. Perry, 417 U.S. 21 (1974), and
Menna vy. New York, 423 U.S. 61, 62 (1975) (per curiam),
to argue that an appellate challenge to a statute of con-
viction automatically survives all plea-related relin-
quishment and need not be preserved. Neither Black-
ledge nor Menna identifies such a challenge as jurisdic-
tional, or otherwise immune to relinquishment. The
drafters of Rule 11(a)(2) accordingly did not view such
challenges to be outside the scope of the Rule’s manda-
tory preservation procedures, even though they thought
that the specific claims in Blackledge and Menna were.
Furthermore, the exception that Blackledge and Menna
recognize to the inherent preclusive effect of a guilty
plea does not encompass challenges to the statute of
conviction, which attack the very legal guilt that the de-
fendant has admitted, rather than the act of filing the
charges that required the defendant to appear in court
and enter a plea. And nothing in Blackledge and Menna
forecloses the possibility of an express waiver of appel-
late claims.
16
A. A Challenge To The Constitutionality Of A Substantive
Criminal Statute Is A Nonjurisdictional Claim That
Can Be Forfeited Or Waived
As petitioner appears to acknowledge (Br. 30 n.4), a
claim that a criminal statute is unconstitutional, either
on its face or as applied, does not present an issue of
“jurisdiction” that involves “the courts’ statutory or
constitutional power to adjudicate the case,” United
States v. Cotton, 535 U.S. 625, 630 (2002) (emphasis
omitted) (quoting Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89 (1998)). It is thus a type of claim
that can “be forfeited or waived.” Jbid.
1. This Court’s decision in United States v. Wil-
liams, 341 U.S. 58 (1951), makes clear that the constitu-
tionality of the statute under which a defendant is
charged and convicted is not a question of subject-matter
jurisdiction. Jd. at 66-69. The Court held in Williams
that a district court is “authorized to render judgment
on the indictment” even when the charges in the indict-
ment are legally defective. Jd. at 66. The Court ex-
plained that “[e]ven the unconstitutionality of the stat-
ute under which the proceeding is brought does not oust
a court of jurisdiction.” Jbid. “Though the trial court
or an appellate court may conclude that the statute is
wholly unconstitutional,” it nevertheless “has proceeded
with jurisdiction.” /d. at 68-69.
The Court’s explication of that principle in Williams
postdates, and for relevant purposes supersedes, the
discussion in E'x parte Siebold, 100 U.S. 371 (1880), cited
by petitioner (Br. 26, 29-30). Siebold addressed the
scope of a court’s “criminal jurisdiction” only for pur-
poses of delimiting Court’s own habeas jurisdiction un-
der the law as it existed at that time. See 100 U.S. at
17
376 (citation omitted). In the era when Siebold was de-
cided, such habeas review was limited to claims that
“the convicting court had no jurisdiction to render the
judgment which it gave,” Cotton, 535 U.S. at 630 (cita-
tion and internal quotation marks omitted), and direct
review of a criminal conviction in this Court did not ex-
ist, 2bid. As the Court has since recognized, the Court
accordingly relied on a “somewhat expansive notion of
‘jurisdiction,’” Custis v. United States, 511 U.S. 485, 494
(1994), to address constitutional claims on habeas. By
the middle of the twentieth century, however, this
Court “finally abandoned the kissing of the jurisdic-
tional book,” id. at 509 (Souter, J., dissenting) (citation
omitted), and openly entertained constitutional claims
on habeas without maintaining a jurisdictional “fiction,”
Wainwright v. Sykes, 483 U.S. 72, 79 (1977).
2. Because a constitutional challenge to a statute of
conviction is not “jurisdiction[al] in the modern sense,”
Pet. Br. 30 n.4, it is subject to forfeiture, waiver, and
preclusion. “‘No procedural principle is more familiar
to this Court than that a constitutional right,’ or a right
of any other sort, ‘may be forfeited in criminal as well
as civil cases by the failure to make timely assertion of
the right before a tribunal having jurisdiction to deter-
mine it.’” United States v. Olano, 507 U.S. 725, 731
(1993) (quoting Yakus v. United States, 321 U.S. 414,
444 (1944)). Similarly, even the “most basic rights of
criminal defendants are *** subject to waiver.”
Peretz v. United States, 501 U.S. 923, 936 (1991); see id.
at 936-937 (listing examples).
Like most other constitutional claims, a challenge to
a statute’s constitutionality can be relinquished. “{N |one
would suggest that a litigant may never waive the defense
that a statute is unconstitutional.” Plaut v. Spendthrift
18
Farm, Inc., 514 U.S. 211, 231 (1995). And “virtually all
circuits” have faced forfeited “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 deter-
mining that the lower court’s failure to address them
constituted ‘plain error.’” United States v. Baucum,
80 F.3d 539, 541 (D.C. Cir.) (per curiam), cert. denied,
519 U.S. 897 (1996); see id. at 541 n.2 (citing cases).
Those results would not be possible if the constitutionality
of the statute of conviction were a jurisdictional issue.
3. Petitioner’s suggestion (Br. 26-27, 29-34) that
challenges to a statute of conviction warrant special
treatment with respect to preservation is misplaced.
Although an unconstitutional law can in some sense be
described as “void” (e.g., Pet. Br. 26 (citation omitted)),
this Court has made clear that a constitutional chal-
lenge to a law—especially an as-applied challenge—
does not suggest that the law is a complete nullity for
all purposes. See Williams, 341 U.S. at 66, 68-69.
Claims that a particular conviction implicates conduct
beyond Congress’s power to criminalize are just as sub-
ject to preservation rules as other claims. The Court
has recognized, for example, that a claim that a defend-
ant may have been “convicted based exclusively on non-
criminal conduct,” is subject to forfeiture when it is not
raised in district court. See United States v. Marcus,
560 U.S. 258, 265 (2010); see id. at 260, 262, 264-265.
Petitioner’s reliance (Br. 29-34) on this Court’s ret-
roactivity jurisprudence is inapt. The retroactivity in-
quiry concerns the scope of a judicial decision that has
already definitively established a defendant-favorable
constitutional rule, asking whether that rule should ex-
19
tend to cases in which direct review has already con-
cluded. See, e.g., Welch, 136 S. Ct. at 1264-1265. In the
context of that inquiry, the Court has held that when a
decision creates a new rule invalidating the substantive
basis for a defendant’s punishment—e.g., by holding the
statute of conviction unconstitutional—the defendant
may potentially rely on that decision to seek collateral
relief. See, ¢.g., Montgomery, 136 S. Ct. at 729-732.
Nothing in the Court’s retroactivity doctrine, however,
entitles a defendant who is challenging his statute of
conviction on grounds that are not yet settled to disre-
gard standard rules of waiver, forfeiture, and preclu-
sion. Although such a challenge, if ultimately vindi-
cated, could potentially produce a retroactive legal rule,
that does not excuse the defendant from adherence to
normal litigation standards along the way. To the con-
trary, treating a defendant’s efforts to challenge a stat-
ute as if he had already prevailed would upend the
“strong presumption of constitutionality due to an Act
of Congress,” United States v. Watson, 423 U.S. 411,
416 (1976) (quoting United States v. Di Re, 332 U.S. 581,
585 (1948)).
4. The distinction between challenges seeking to
make new law and retroactive application of established
law also illustrates the error in petitioner’s contention
(Br. 34-35) that defendants like him will have no re-
course unless his position in this case prevails. Ifa later
judicial decision were definitively to establish the sub-
stantive unconstitutionality of such a defendant’s con-
viction, the imposition of punishment on the defendant
would no longer be presumptively (or actually) lawful.
See Montgomery, 136 S. Ct. at 729-730. The defendant
could thus seek appropriate relief, such as by filing a
motion under 28 U.S.C. 2255 collaterally attacking his
20
conviction and sentence. See Davis v. United States,
417 U.S. 333, 346-347 (1974) (recognizing that Section
2255 authorizes claim that defendant was convicted “for
an act that the law does not make criminal”); see also
28 U.S.C. 2255(f)(3) (fresh statute of limitations for
claims based on retroactive decisions of this Court).
The reason a defendant could seek such relief is be-
cause a district court’s entry of judgment, whether it
follows a guilty plea or otherwise, necessarily presup-
poses the existence of at least some tenable legal basis
for the defendant’s conviction and sentence. So long as
such a tenable basis exists, a defendant can validly for-
feit, waive, or otherwise relinquish his personal right to
advance a legally uncertain challenge to it—as he does
by electing to enter a plea in which he ceases to contest
his legal guilt. See, e.g., United States v. Broce, 488 U.S.
563, 569-574 (1989); see Part C, infra. But such relin-
quishment does not extend to a future clarification of
the law that unequivocally removes the substantive ba-
sis for criminal liability. In that situation, the admis-
sions in the plea cannot transform unlawful imprison-
ment into a lawful sentence.
Although a defendant’s failure to challenge a statute
on direct review following a guilty plea would constitute
procedural default for purposes of collateral review, see
Bousley v. United States, 523 U.S. 614, 621 (1998), that
bar does not apply when a defendant is “actually inno-
cent” of any substantive crime for which he could validly
be punished, id. at 623-624, which will be the case when
the only conduct for which he could have been convicted
is constitutionally protected. Furthermore, the govern-
ment has the ability to waive the procedural bar in cases
where defendants have meritorious substantive claims,
as it has done with defendants whose sentences rest on
21
the statutory enhancement that this Court held to be
unconstitutieonally vague in Johnson v. United States,
135 S. Ct. 2551, 2555, 2563 (2015).
5. Petitioner does not seek collateral relief in reli-
ance on a settled principle of constitutional law. He in-
stead seeks to challenge on appeal the constitutionality
of prohibiting firearms on the Capitol Grounds based on
arguments that are unsupported by this Court’s deci-
sions and that have been rejected by other courts of ap-
peals. See McDonald v. City of Chicago, 561 U.S. 742,
786 (2010) (plurality opinion) (explaining that Court’s
jurisprudence does “not cast doubt on such longstand-
ing regulatory measures as ** * ‘laws forbidding the
carrying of firearms in sensitive places such as schools
and government buildings’”) (quoting District of Co-
lumbia v. Heller, 554 U.S. 570, 626 (2008)); see, e.g.,
Bonidy v. United States Postal Serv., 790 F.3d 1121,
1125-1127 (10th Cir. 2015) (rejecting Second Amend-
ment challenge to prohibition on firearms in parking lot
adjacent to post 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, 565 U.S. 1058
(2011). He also seeks to raise a vagueness argument
that he did not present to the district court. See Gov't
C.A. Br. 29-31.
Petitioner has no affirmative constitutional right to
raise those arguments on appeal. See Davila v. Davis,
No. 16-6219 (June 26, 2017), slip op. 8 (“The Constitu-
tion * * * does not guarantee the right to an appeal at
all.”). To the contrary, the “right of appeal, as we pres-
ently know it in criminal cases, is purely a creature of
statute.” Abney v. United States, 431 U.S. 651, 656
22
(1977). Accordingly, complete or partial limitations on
the opportunity to raise an argument in an appellate fo-
rum have a long historical pedigree. See, e.g., Martinez
v. Court of Appeal, 528 U.S. 152, 159 & n.7 (2000);
Abney, 431 U.S. at 656 n.3; Carroll v. United States,
354 U.S. 394, 400 n.9 (1957). In particular, it has long
been the case that a potential appellate claim can be for-
feited, waived, or precluded. See, e.g., Friedenstein v.
United States, 125 U.S. 224, 230 (1888) (concluding that
argument that defendant had failed properly to raise in
district court “must be regarded as having been waived,
or as having been cured by the verdict”).
B. Federal Rule Of Criminal Procedure 11(a)(2) Requires
A Defendant To Enter A Conditional Plea In Order
To Challenge The Constitutionality Of The Statute Of
Conviction On Appeal
Petitioner relinquished his right to challenge
40 U.S.C. 5104(e) on appeal by failing to preserve his
claims through a conditional plea under Federal! Rule of
Criminal Procedure 11(a)(2). A defendant’s statutory
right to appeal is subject to this Court’s delegated
“power to prescribe general rules of practice and proce-
dure * * * for cases in the United States district courts
*** and courts of appeals.” 28 U.S.C. 2072(a). Al-
though such rules may “not abridge, enlarge or modify
any substantive right,” 28 U.S.C. 2072(b), they are “as
binding as any statute duly enacted by Congress” on
matters of procedure, Bank of Nova Scotia v. United
States, 487 U.S. 250, 255 (1988). They can thus be ap-
plied to foreclose or limit an appeal. See, e.g., Manrique
v. United States, 137 S. Ct. 1266, 1271-1274 (2017) (en-
forcing rule-based timing requirement for criminal ap-
peals). Here, Rule 11(a)(2) requires that a defendant
explicitly preserve any constitutional challenge to his
23
statute of conviction in order to raise that challenge on
appeal following a guilty plea.
1. Rule 11(a)(2) precludes appeal of pretrial issues that
were not expressly reserved in the defendant’s guilty
plea
Rule 11(a)(2) provides that “[w]ith the consent of the
court and the government, a defendant may enter a con-
ditional 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); see ibid. (“A defendant who
prevails on appeal may then withdraw the plea.”).
When a defendant follows that procedure, he ensures
that the parties and the court have a mutual under-
standing of the respects in which he does not intend his
plea to be final. When, however, he forgoes that proce-
dure, he relinquishes appeal rights he might otherwise
have preserved.
a. Rule 11(a)(2) allows a defendant to designate
his plea as “conditional” on the appellate resolution of
an issue that was the subject of an “adverse determina-
tion of a specified pretrial motion.” Fed. R. Crim. P.
11(aX(2). In order to do so, the defendant must
“reserv(e] in writing the right to have an appellate court
review” that issue. Jbid. The natural implication of
those textual preconditions is that a defendant who
pleads guilty cannot challenge his conviction on appeal
on a forfeitable or waivable ground that he either failed
to present to the district court or failed to reserve in
writing. See, e.g., Cooper Indus., Inc. v. Aviall Servs.,
Inc., 543 U.S. 157, 166 (2004) (concluding that the “nat-
ural meaning” of a statute allowing someone to “‘seek
contribution ... during or following’” a particular type
of “‘civil action’” was “that contribution may only be
24
sought subject to the specified conditions”) (emphasis
and citation omitted); Continental Cas. Co. v. United
States, 314 U.S. 527, 533 (1942) (“The statement of the
conditions negatives action without the satisfaction of
those requirements.”).
That textual implication is reinforced by other fea-
tures of the Rules. For example, Rule 32 requires a dis-
trict court to advise a defendant of his “right to appeal
the conviction” only when he has “pleaded not guilty,”
Fed. R. Crim. P. 32(j)(1)(A); a defendant who has
pleaded guilty is advised only of his “right to appeal the
sentence,” Fed. R. Crim. P. 32(j)(1)(B). Similarly, Rule
11 itself requires a district court conducting a plea
colloquy to discuss with the defendant only a “plea-
agreement provision waiving the right to appeal or to
collaterally attack the sentence,” Fed. R. Crim. P.
11(b)(1)(N), suggesting that a plea-agreement provision
waiving rights to appeal the conviction would generally
be redundant of preexisting limitations.
b. Where the Rules do anticipate appeals of plea-
based convictions, they do so only with respect to pro-
cedural issues concerning the plea itself, not the sub-
stance of the conviction. And even then they circum-
scribe the scope of appellate review to advance the
strong systemic interest in finality.
Rule 11(h) explicitly provides that a “variance from
the requirements” of Rule 11 itself, which governs plea
procedures, are subject to harmless-error review on ap-
peal. Fed. R. Crim. P. 11(h); see, e.g., United States v.
Vonn, 535 U.S. 55, 58 (2002). The Advisory Committee,
while acknowledging that the “interest in finality” of
guilty pleas “is of somewhat lesser weight when a direct
appeal is involved” than “in the collateral attack con-
25
text,” nevertheless found the finality interest “suffi-
ciently compelling” in the appellate setting to warrant
limitations on review. Fed. R. Crim. P. 11 advisory com-
mittee’s note (1983).
In addition, this Court has itself interpreted the Fed-
eral Rules, with “finality” concerns in mind, to foreclose
appellate relief for claims of Rule 11 error that were not
raised in district court, unless the stringent plain-error
requirements of Rule 52(b) are satisfied. Vonn, 535 U.S.
at 72-74. The Court has further explained that the ap-
plication of that plain-error standard “should respect
the particular importance of the finality of guilty pleas,
which usually rest, after all, on a defendant’s profession
of guilt in open court, and are indispensable in the op-
eration of the modern criminal justice system.” United
States v. Dominguez Benitez, 542 U.S. 74, 82-83 (2004).
2. Rule 11(a)(2)’s preservation ‘equirement applies
to a claim that the statute of conviction is
unconstitutional
Rule 11(a)(2)’s prerequisites apply, without qualifi-
cation, to any forfeitable issue that may be raised in a
“pretrial motion.” Fed. R. Crim. P. 11(a)(2). Nothing
in the text of the Rule creates or suggests an exception
to its procedural requirements for challenges to a de-
fendant’s statute of conviction. And the Advisory Com-
mittee Notes confirm that no such exception was in-
tended.
a. The Notes explain that “the availability of a con-
ditional plea under specified circumstances will aid in
clarifying the fact that traditional, unqualified pleas do
constitute a waiver of nonjurisdictional defects.” Fed.
R. Crim, P. 11 advisory committee’s note (1983). That
explanation reinforces the Rule’s unqualified text by
26
making clear that the Committee intended an uncondi-
tional guilty plea to renounce all waivable claims—a set
that includes a claim challenging the constitutionality of
the statute of conviction.
The standard definition of “jurisdictional” in the ju-
dicial context, both when Rule 11(a)(2) was enacted and
now, refers to “the authority by which courts and judi-
cial officers take cognizance of and decide cases.”
Black’s Law Dictionary 766 (5th ed. 1979) (defining “ju-
risdiction”); see ibid. (similar alternative definitions of
“jurisdiction”); ibid. (defining “jurisdictional,” as rele-
vant here, to mean “[pjertaining or relating to jurisdic-
tion”); id. at 336 (defining “criminal jurisdiction” as
“[plower of tribunal to hear and dispose of criminal
cases”); see also Black’s Law Dictionary 980 (10th ed.
2014). A defect that is “jurisdictional”—+.e., one that
goes to the court’s “power to adjudicate”—is one that
“can never be forfeited or waived.” Cotton, 535 U.S. at
630 (emphasis omitted).
The Committee’s statement thus illustrates that
Rule 11(a)(2) was designed to bring as much finality and
certainty as possible to guilty pleas by ensuring that an
unconditional plea would foreclose any subsequent ap-
pellate claim that is subject to forfeiture. The Commit-
tee viewed such a “traditional plea of guilty” as having
“complete finality,” because it admits both “legal guilt”
and “factual guilt.” Fed. R. Crim. P. 11 advisory com-
mittee’s note (1983) (citation omitted). And it viewed a
conditional plea as having nearly as much finality, be-
cause it admits “factual guilt” and the defendant’s ad-
mission of “legal guilt” will be disturbed only “if the re-
served issue is ultimately decided in the government’s
favor” on appeal. /bid. (citation omitted). The Commit-
tee did not, however, intend to leave open the additional
27
possibility of reversal on appeal of a nonjurisdictional
claim that the defendant failed to reserve, such as a
challenge to the constitutionality of the statute of con-
viction.
b. Had the Committee intended such a challenge to
be exempt from the Rule’s requirements, and thus to
intrude on the finality of a plea, it would have said so.
But the unqualified text of the Rule, and the Notes’ use
of the term “nonjurisdictional,” convey the opposite,
particularly given the drafters’ intent that defendants
“identify precisely what pretrial issues have been pre-
served for appellate review.” Fed. R. Crim. P. 11 advi-
sory committee’s note (1983).
Indeed, although some sources cited in the Notes er-
roneously described challenges to a statute of convic-
tion as “jurisdictional,” the Committee itself did not re-
peat, let alone endorse, such inaccuracy. Compare, ¢..,
United States v. Cox, 464 F.2d 937, 940-941 (6th Cir.
1972), and John D. Botsford, Comment, Conditioned
Guilty Pleas, 26 UCLA L. Rev. 360, 360 n.1 (1978), with
Fed. R. Crim. P. 11 advisory committee’s note (1983).
The Committee could not have intended silently to de-
part from Williams’s understanding about the nonjuris-
dictional nature of such challenges, particularly when
circuit practices about allowing such challenges after a
plea were not entirely uniform, see Shaffer v. United
States, 435 F.2d 168, 168 (9th Cir. 1970) (per curiam)
(holding that plea precluded collateral as-applied con-
stitutional challenge to statute of conviction).
ec. Petitioner errs in reading (Br. 37-38) the Notes’
brief discussion of Menna v. New York, supra, and
Blackledge v. Perry, supra, to implicitly exempt consti-
tutional challenges to a statute of conviction from Rule
1l1(a)(2). The Committee observed, citing Menna and
28
Blackledge, that this Court had “held that certain kinds
of constitutional objections may be raised after a plea of
guilty.” Fed. R. Crim. P. 11 advisory committee’s note
(1983). It parenthetically described Menna as involving
a “double jeopardy violation” and Blackledge as involv-
ing a “due process violation by charge enhancement fol-
lowing [a] defendant’s exercise of [a] right to trial de
novo.” Ibid. The Committee explained that Rule
11(a)(2) “has no application to such situations, and
should not be interpreted as either broadening or nar-
rowing the Menna-Blackledge doctrine or as establish-
ing procedures for its application.” bid.
At the time the Notes were written, the Committee
may well have believed that the particular “kinds of
constitutional objections” at issue in Blackledge and
Menna were unwaivable and thus beyond the permissi-
ble scope of the preservation procedures that the Rule’s
unqualified text requires. It was not until four years
later that this Court’s “decision in Ricketts v. Adamson,
483 U. S. 1 (1987), made clear that the protection
against double jeopardy is subject to waiver.” Broce,
488 U.S. at 568; see ibid. (noting a court of appeals’ mis-
take on this point); see also Menna, 423 U.S. at 62 n.2
(disavowing holding on general waivability of double-
jeopardy claims). The nonjurisdictional nature of a con-
stitutional challenge to a statute of conviction, in con-
trast, had been clarified in Williams, long before Rule
11(a)(2) was promulgated. That is presumably why the
Committee, while highlighting two “kinds of constitu-
tional objections” as exempt from the Rule, omitted any
similar mention of constitutional challenges to statutes.
Particularly damaging to petitioner’s view is the
Committee’s omission of any reference to Haynes v.
29
United States, 390 U.S. 85 (1968). In Haynes, the de-
fendant had raised an as-applied constitutional chal-
lenge to a criminal statute in district court before plead-
ing guilty, and this Court—without objection from the
government or analysis beyond citation of a single cir-
cuit decision—permitted the renewal of that challenge
on appeal. Jd. at 86-87, 90 & n.2 (citing United States v.
Ury, 106 F.2d 28 (2d Cir. 1939)). The Advisory Commit-
tee was doubtless aware of Haynes—which was cited in
decisions mentioned in the Notes, see, e.g., Cox, 464
F.2d at 940-941—but did not associate it with Black-
ledge and Menna or separately identify it as exemplify-
ing a procedure that it viewed to be permissible. To the
contrary, the Committee made clear that a procedure of
the sort employed in Haynes, in which the filing of a
pretrial motion was alone deemed sufficient to preserve
an issue for a post-plea appeal, would not be allowed un-
der Rule 11(a)(2). See Fed. R. Crim. P. 11 advisory com-
mittee’s note (1983) (explaining that Rule 11(a)(2) would
“avoid * * * post-plea claims by the defendant that his
plea should be deemed conditional merely because it oc-
curred after denial of his pretrial motions”); see also
Bank of Nova Scotia, 487 U.S. at 254 (recognizing that
Federal Rules displace courts’ supervisory authority).
3. Requiring express preservation of constitutional
challenges to statutes through a conditional plea
furthers the interests underlying Rule 11(a)(2)
Allowing a challenge to the statute of conviction on
appeal in the absence of a conditional plea under Rule
11(a)(2) would subvert the Rule’s goals. Cf. Microsoft
Corp. v. Baker, 137 S. Ct. 1702, 1707 (2017) (rejecting
procedural “tactic” for appealing an issue that would,
inter alia, “subvert the balanced solution ** * putin
place” by a Federal Rule of Civil Procedure).
30
a. The Committee intended Rule 11(a)(2) “to con-
serve prosecutorial and judicial resources and advance
speedy trial objectives,” by “avoid[ing] the necessity for
trials which are undertaken for the sole purpose of pre-
serving pretrial objections.” Fed. R. Crim. P. 11 advi-
sory committee’s note (1983). In designing the Rule’s
procedures, the Committee respected the “interest in
achieving finality,” by limiting an appeal following a
plea to the “reserved issue.” /bid. (citation omitted). It
also respected the interest in clarity, by requiring doc-
umentation “that a particular plea was in fact condi-
tional,” with a record of the “precise[] *** pretrial
issues [that] have been preserved.” /bid.
Exempting claims that the statute of conviction is
unconstitutional from the conditional-plea procedure
would undermine the interests in efficiency, finality,
and clarity that the Rule promotes. The goal of a con-
ditional plea is that it be “entered with the clear under-
standing and expectation by the [government], the de-
fendant, and the courts that it will not foreclose judicial
review of the merits of the [reserved] alleged constitu-
tional violations.” Lefkowitz, 420 U.S. at 290. Such an
understanding is particularly helpful when the plea is
the product of negotiation, so that the government
knows exactly what it gets for its concessions in the plea
agreement. See Broce, 488 U.S. at 576 (noting potential
for a “plea bargain which incorporates concessions by
the Government” to “heighten|] the already substantial
interest the Government has in the finality of the plea”)
(emphasis omitted).
The Rule’s requirement that the court and the gov-
ernment agree with the defendant that a particular is-
sue should be reserved for a post-plea appeal also plays
an important role. See Fed. R. Crim. P. 11(a)(2). The
31
Committee recognized that allowing a defendant to re-
serve issues unilaterally could result in wasteful litiga-
tion. A defendant might, for example, attempt to appeal
“on a matter which can only be fully developed by pro-
ceeding to trial.” Fed. R. Crim. P. 11 advisory commit-
tee’s note (1983). Or he might seek to raise an issue that
would not “dispose of the case” and would “only serve
to postpone the trial and require the government to try
the case after substantial delay.” /bid. The court and
the government provide an effective screen against
such unproductive appeals. /bid.
b. Petitioner contends (Br. 38) that “[i]t would make
little sense” to require the government’s concurrence in
a conditional plea that seeks to preserve a challenge to
the statute of conviction. But the Committee explained
that although “the conditional plea device will be most
commonly employed” in relation to a “motion to sup-
press evidence,” the “objectives of the rule are well
served by extending it to other pretrial rulings as well.”
Fed. R. Crim. P. 11 advisory committee’s note (1983).
That includes pretrial rulings rejecting a constitutional!
challenge to the underlying criminal statute.
Such a challenge will not automatically be fit for
appellate review. It may, for example, not be “case-
dispositive,” Fed. R. Crim. P. 11 advisory committee’s
note (1983), as where it relates to only one of multiple
means by which the government might prove that the
defendant committed the charged offense. Or constitu-
tional challenges, particularly as-applied challenges,
may benefit from factual development that did not occur
in the context of any pretrial proceedings. See ibid.; see
also, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
626-627 (1994) (remanding case challenging constitu-
tionality of statute for further factual development).
32
Here, for example, petitioner’s own arguments suggest
that his Second Amendment or vagueness claims may
be informed by, inter alia, the precise location in which
he parked his Jeep, the presence of visible indications
that the area was on the Capitol Grounds, and enforce-
ment practices under the statute. See, e.g., C.A. Amicus
Br. 32, 538. But even if no further factual development
were necessary, appeal would still be precluded in light
of petitioner’s failure to provide the court and the gov-
ernment with an upfront understanding of, and oppor-
tunity to address, the proper scope of appellate review.
c. As ageneral matter, the government may not typ-
ically offer, or always be open to, conditional pleas. See,
e.g., NACDL Amicus Br. 20-21 (citing small number of
cases discussing issue in context of suppression claims).
But petitioner errs in suggesting (Br. 38) that the Rule
must be interpreted to exempt challenges to a statute
of conviction from the requirement that the government
concur in a conditional plea. Petitioner provides no em-
pirical evidence that the government habitually with-
holds consent for conditional pleas in the rare cases in
which a defendant raises a colorable legal challenge to
the constitutionality of the charging statute. And he
identifies no practical justification for singling out those
cases as ones in which the consent requirement would
be problematic.
An appendix to this brief lists more than 50 decisions
from the federal courts of appeals that expressly note
the use of a conditional plea to preserve an appellate
challenge to the constitutionality of the statute of con-
viction. Several recent opinions in this Court have sim-
ilarly explicitly mentioned the use of that procedure to
preserve such claims. See, e.g., Bond v. United States,
134 S. Ct. 2077, 2085-2086 (2014) (Tenth Amendment
33
challenge); United States v. Alvarez, 567 U.S. 709, 713-
716 (2012) (plurality opinion) (First Amendment chal-
lenge); Carr v. United States, 560 U.S. 438, 441-442
(2010) (ex post facto challenge); see also, e.g., Small v.
United States, 544 U.S. 385, 387 (2005) (challenge to
statute’s scope). No reason exists to presume that con-
ditional pleas based on constitutional challenges to stat-
utes are being unreasonably blocked by the govern-
ment’s failure to consent.
C. An Unconditional Guilty Plea Inherently Relinquishes
An Appellate Chailenge To The Constitutionality Of
The Statute Of Conviction
The procedural requirements of Rule 11(a)(2) are
alone sufficient to resolve this case. Petitioner identi-
fies no affirmative right that would entitle a defendant
who has failed to preserve a constitutional challenge
to his statute of conviction in accordance with Rule
11(a)(2) to nevertheless raise such a challenge on ap-
peal. He contends (Br. 1) only that such a challenge is
not “inherently waived or foreclosed” by the unconii-
tional plea itself. Even that, however, is incorrect. The
natural consequence of a defendant’s unconditional
acquiescence to a legal judgment of conviction is to
foreclose constitutional claims incompatible with that
judgment—including challenges to the statute underly-
ing it, insofar as they seek to make new law.
1. Aconstitutional challenge to the statute of conviction
is inconsistent with unconditional consent to a
judgment of conviction that presumes legal guilt
a. The inherent finality of a guilty plea is achieved
by defining the plea as an acknowledgment of both fac-
tual and legal guilt that is in itself sufficient to support
the entry of judgment. “By entering a plea of guilty,
34
the accused is not simply stating that he did the discrete
acts described in the indictment; he is admitting guilt of
a substantive crime.” Broce, 488 U.S. at 570. The plea
thus represents “the defendant’s consent that judgment
of conviction may be entered without a trial.” Brady v.
United States, 397 U.S. 742, 748 (1970); see, e.g., Flor-
ida v. Nixon, 543 U.S. 175, 187 (2004) (explaining that a
guilty plea is “itself a conviction”) (quoting Boykin v.
Alabama, 395 U.S. 238, 242 (1969)). Once the court has
accepted the plea, “nothing remains but to give judg-
ment and determine punishment.” Boykin, 395 U.S. at
242; see Macihibroda y. United States, 368 U.S. 487, 492
(1962); Kercheval v. United States, 274 U.S. 220, 224
(1927).
The inherent conclusiveness of a plea-based convic-
tion limits the ways in which that conviction may be at-
tacked. “[W]hen the judgment of conviction upon a
guilty plea has become final and the offender seeks to
reopen the proceeding, the inquiry is ordinarily con-
fined to whether the underlying plea was both coun-
seled and voluntary.” Broce, 488 U.S. at 569. “If the
answer is in the affirmative then the conviction and the
plea, as a general rule, foreclose the collateral attack.”
Ibid. The Court has accordingly held that a guilty plea
precludes, for example, post-plea claims alleging that
the charging statute had an unconstitutional penalty
provision, see, ¢e.g., Brady, 397 U.S. at 749-758; that a
confession was coerced, see McManu v. Richardson,
397 U.S. 759, 771 (1970); that a grand jury was improp-
erly constituted, see Tollett v. Henderson, 411 U.S. 258,
266-267 (1973); and that a defendant was unconstitu-
tionally convicted of two offenses instead of one, see
Broce, 488 U.S. at 565. See Tollett, 411 U.S. at 266 (ex-
35
plaining that Brady and McMann “foreclose direct in-
quiry into the merits of claimed antecedent constitu-
tional violations” as well as claims that they affected the
plea’s voluntariness).
That preclusion principle applies even without a
“conscious waiver * * * with respect to each potential
defense relinquished by [the] plea of guilty.” Broce,
488 U.S. at 573. “Relinquishment,” this Court has ex-
plained, “derives not from any inquiry into a defend-
ant’s subjective understanding of the range of potential!
defenses, but from the admissions necessarily made
upon entry of a voluntary plea.” Jd. at 573-574. And
because the relinquishment is inherent in the plea itself,
preclusion applies not only on collateral review, but also
on direct appeal. See, ¢.g., Pet. Br. 21-22 (making no
distinction between collateral and direct review). This
Court has recognized, for example, a default rule in
state court that a defendant “must plead not guilty and
go to trial to preserve the opportunity for state appel-
late review of his constitutional challenges to arrest, ad-
missibility of various pieces of evidence, or the volun-
tariness of a confession.” Lefkowitz, 420 U.S. at 289.
“Once the defendant chooses to bypass the orderly pro-
cedure for litigating his constitutional claims in order to
take the benefits, if any, of a plea of guilty, the State
acquires a legitimate expectation of finality in the con-
viction thereby obtained.” /bid. The same default rule
applies in the federal system. See id. at 288 (deriving
the rule from, inter alia, Brady v. United States,
supra); Pet. Br. 16-34 (relying interchangeably on state
and federal cases).
b. Unless he is relying on a newly established rule of
constitutional law that is necessarily beyond the scope
36
of the plea, see p. 20, supra, a defendant who uncondi-
tionally accepts the entry of judgment from the district
court premised on his legal guilt cannot then seek to
undo the judgment on appeal by contesting legal guilt.
“A plea of guilty and the ensuing conviction compre-
hend all of the factual and legal elements necessary to
sustain a binding, final judgment of guilt and a lawful
sentence.” Broce, 488 U.S. at 569. One of the “legal el-
ements necessary to sustain a binding, final judgment
of guilt and a lawful sentence,” ibid., is the defendant’s
“admission of guilt of a substantive criminal offense as
charged in [the] indictment,” Libretti v. United States,
516 U.S. 29, 38 (1995). Although that admission would
not preclude reliance on a future retroactive rule that
eliminates any current legal basis for punishment, it
necessarily concedes that the conviction is not barred
by then-applicable law and consents to the entry of a
valid judgment. A defendant’s about-face on appeal to
seek a new legal rule that invalidates judgment on the
substantive offense charged in the indictment, there-
fore, repudiates the core premise of his plea.
For that reason, “(w]hen a defendant admits guilt of
a substantive crime, he cannot reverse course on appeal
and claim the criminal statute is unconstitutional.”
United States v. De Vaughn, 694 F.3d 1141, 1154 (10th
Cir. 2012), cert. denied, 133 S. Ct. 2383 (2013). A guilty
plea reflects a defendant’s “strategic choice” to accept
“conviction,” Niason, 543 U.S. at 187, on the expectation
that it is in his best interest (e.g., for sentencing pur-
poses) to do so. See, ¢.g., North Carolina v. Alford,
400 U.S. 25, 32, 36 (1970); Brady, 397 U.S. at 752. In
entering such a plea, a defendant accepts that he may
be treated as legally guilty, even if additional proceed-
ings might have established that he is not. See, e.g.,
37
Broce, 483 U.S. at 571 (holding that defendants’ guilty
plea to two conspiracy charges was in lieu of an “at-
tempt to show the existence of only one conspiracy in a
trial-type proceeding”). Indeed, this Court has recog-
nized that a defendant may validly acquiesce in treat-
ment consistent with legal guilt even without explicitly
acknowledging such guilt. Alford, 400 U.S. at 33-39.
“(T}he Constitution does not bar imposition of a prison
sentence upon an accused who is unwilling expressly to
admit his guilt but who, faced with grim alternatives, is
willing to waive his trial and accept the sentence.” /d.
at 36.
c. A plea, and its corresponding concessions, are
valid so long as “the plea represents a voluntary and in-
telligent choice among the alternative courses of action
open to the defendant.” Alford, 400 U.S. at 31. Once “a
crimina} defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged,” he may “attack the voluntary and intelligent
character of the guilty plea” itself, Tollett, 411 U.S. at
267, but generally may not attack the law and facts un-
dergirding the conviction, ibid.; see Broce, 488 U.S. at
569.
A challenge to the statute of conviction does not im-
pugn the voluntary and intelligent nature of the plea, or
otherwise suggest that the plea was defective. Al-
though “a plea does not qualify as intelligent unless a
criminal defendant first receives real notice of the true
nature of the charge against him,” the defendant’s re-
ceipt of a copy of his indictment, “standing alone, give(s |
rise to a presumption” that such notice was provided.
Bousley, 523 U.S. at 618 (citation and internal quotation
marks omitted). Additional circumstances may rebut
38
that presumption; a defendant can, for example, chal-
lenge the knowing and intelligent nature of his plea on
appeal when the district court affirmatively “misin-
formed” him about “the essential elements of the crime
with which he was charged.” Jbid.; see id. at 621-622.
But a knowing and intelligent plea does not require that
the district court inform the defendant, or that the de-
fendant comprehend, potential constitutional chal-
lenges to the underlying statute.
The Court “has found that the Constitution, in re-
spect to a defendant’s awareness of relevant circum-
stances, does not require complete knowledge of the rel-
evant circumstances, but permits a court to accept a
guilty plea, with its accompanying waiver of various
constitutional rights, despite various forms of misap-
prehension under which a defendant might labor.”
United States v. Ruiz, 536 U.S. 622, 630 (2002). In par-
ticular, a plea may be knowing, intelligent, and valid
notwithstanding a defendant’s misapprehension about
the availability of a “potential defense,” ibid. (citing
Broce, 488 U.S. at 573), including a constitutional de-
fense that would if successful preclude conviction on a
particular charge, see Broce, 488 U.S. at 573-574 (double-
jeopardy claim). The Court has also rejected challenges
to the knowing and voluntary nature of a plea where the
defendant was charged under a statute with a death-
penalty provision later held unconstitutional, the effect
of which was to make a guilty plea the only way to avoid
the possibility of a death sentence. See Brady, 397 U.S.
at 749-758; see also Parker v. North Carolina, 397 U.S.
790, 794-795 (1970) (same).
A defendant’s lack of awareness of unproven consti-
tutional objections when he pleaded guilty would at
most give rise to a claim of ineffective assistance of
39
counsel. See Broce, 488 U.S. at 574; Tollett, 411 U.S. at
267; see also, e.g., Hill v. Lockhart, 474 U.S. 52, 59-60
(1985). It would not entitle the defendant to contravene
the “admissions necessarily made upon entry of a vol-
untary plea of guilty,” Broce, 488 U.S. at 573-574, by
challenging the constitutionality of the statute support-
ing the judgment of legal guilt to which he voluntarily
consented.
2. No exception to the preclusive effect of a guilty
plea allows for an appellate challenge to the
constitutionality of the statute of conviction
This Court’s decisions in Blackledge and Menna rec-
ognized “[a]n exception” to the general preclusive effect
of a guilty plea. Broce, 488 U.S. at 574. That exception
does not encompass a defendant’s claim that the statute
underlying the conviction is unconstitutional. Black-
ledge addressed a claim of prosecutorial vindictiveness
under the Due Process Clause; Menna addressed a
claim under the Double Jeopardy Clause. In both cases,
the Court viewed the relevant constitutional violation to
be the filing of the charges that forced the defendant to
enter a plea, not the substance of the conviction itself.
a. In Blackledge, the defendant pleaded guilty to a
felony charge filed by the State in retaliation for the de-
fendant’s appeal of a conviction on a misdemeanor
charge for the same conduct. 417 U.S. at 22-22. The
“nature of the *** constitutional infirmity” asserted
on federal habeas review was that “the State * * * was,
under the facts of thle] case, simply precluded by the
Due Process Clause from calling upon [the defendant]
to answer to the more serious charge.” /d. at 30. The
Court concluded that the guilty plea “did not foreclose
a subsequent challenge because * * * the defendant’s
right was ‘the right not to be haled into court at all upon
40
the felony charge’” to which he had pleaded, and “‘[t]he
very initiation of proceedings against him ... thus op-
erated to deny him due process of law.’” Broce, 488 U.S.
at 574-575 (quoting Blackledge, 417 U.S. at 30-31). The
Court distinguished the defendant’s claim from claims
that it had previously held to be precluded by a guilty
plea on the ground that none of the precluded claims
“went to the very power of the State to bring the de-
fendant into court to answer the charge brought against
him.” Blackledge, 417 U.S. at 30.
In Menna, the defendant pleaded guilty to a charge
of refusing to answer grand-jury questions, after having
already been subject to a contempt adjudication for the
same conduct. 423 U.S. at 61; see id. at 62 n.2. On direct
review, this Court summarily reversed a state appellate
court’s determination that the defendant’s claim under
the Double Jeopardy Clause had “been ‘waived’ by [his]
counseled plea of guilty.” Jd. at 62. The Court ex-
plained, citing Blackledge, that “[wljhere the State is
precluded by the United States Constitution from hal-
ing a defendant into court on a charge, federal law re-
quires that a conviction on that charge be set aside even
if the conviction was entered pursuant to a counseled
plea of guilty.” Jbid. The Court “h[{eld] that a plea of
guilty to a charge does not waive a claim that—judged
on its face—the charge is one which the State may not
constitutionally prosecute.” /d. at 63 n.2.
b. “Only a broad reading of Blackledge and Menna,
unmoored from their factual and legal bases, would sup-
port the conclusion that the right ‘not to be haled into
court’ extends to claims that criminal statutes are un-
constitutional.” De Vaughn, 694 F.3d at 1154.
41
The claims at issue in Blackledge and Menna chal-
lenged the prosecutorial act of filing the charges. Com-
pare Williams, 341 U.S. at 66, 68-69, with Menna,
423 U.S. at 61-62, and Blackledge, 417 U.S. at 30-31.
Each charge, “judged on its face,” was asserted to be
“one which the State [could] not constitutionally prose-
cute,” Menna, 423 U.S. at 63 n.2, and thus “the very act
of haling the defendants into court completed the con-
stitutional violation” that was alleged, United States v.
Miranda, 780 F.3d 1185, 1190 (D.C. Cir. 2015); see
Menna, 423 U.S. at 62; Blackledge, 417 U.S. at 30.
A double-jeopardy claim, as was at issue in Menna, is
so intrinsically directed at “the very authority of
the Government to hale [the defendant] into court to
face trial,” and so “completely independent of his guilt
or innocence,” that its denial may be appealed even be-
fore trial begins. Abney, 431 U.S. at 659-660. And the
prosecutorial-vindictiveness claim at issue in Black-
ledge, while not subject to interlocutory appeal, see
United States v. Hollywood Motor Car Co., 458 U.S.
263, 264, 268 (1982) (per curiam), was closely akin to a
double-jeopardy claim, see Blackledge, 417 U.S. at 31,
and likewise challenged “the very initiation of the pro-
ceedings,” id. at 30.
An attack on the constitutionality of the statute of
conviction, in contrast, does not challenge “the very in-
itiation of the proceedings”; it challenges the result of
those proceedings—the entry of a conviction. At least
in the absence of any binding decisional law dictating
that a statute is unconstitutional on its face or as ap-
plied, the presumption that a statute is constitutional
attaches to the initiation of a prosecution for the con-
duct it criminalizes. Cf., e.g., Michigan v. DeFillippo,
443 U.S. 31, 38 (1979) (recognizing that police officers
42
can rely on the presumptive constitutionality of the
statutes that they enforce). And when such charges are
filed, the district court has authority to hear the case.
See Williams, 341 U.S. at 66-69. A challenge to the con-
stitutionality of the statute is therefore not a challenge
to “the very power of the State to bring the defendant
into court to answer the charge brought against him.”
Blackledge, 417 U.S. at 30. It is instead a claim that,
because the government “enforce{d] a proscription or
penalty barred by the Constitution, the resulting con-
viction or sentence is *** unlawful.” Montgomery,
136 S. Ct. at 729-730 (emphasis added); see, e.g., id. at
730 (“A conviction under an unconstitutional law * * *
‘is illegal and void, and cannot be a legal cause of impris-
onment.’”) (quoting Siebold, 100 U.S. at 376-377).
The distinction is critical, because it is the conviction,
not the filing of the charges, to which the defendant con-
sents by pleading guilty. A defendant who is unlawfully
brought before the court and forced to choose between
a plea or a trial has not acquiesced in the lawfulness of
the act that put him to that very choice. See Broce,
488 U.S. at 575 (“In Blackledge, the concessions implicit
in the defendant’s guilty plea were simply irrelevant,
because the constitutional infirmity in the proceedings
lay in the State’s power to bring any indictment at all.”);
Blackledge, 417 U.S. at 30; ef. Santobello v. New York,
404 U.S. 257, 262 (1971) (“The plea must, of course, be
voluntary.”). Due to the invalidity of that act, “the court
ha[s] no power to enter the conviction or impose the sen-
tence,” Broce, 488 U.S. at 569, inasmuch as it should not
even have received the case. The situation is different,
however, when the alleged defect is not with the act of
initiating the proceedings, but instead with the substan-
43
tive law underlying the conviction. In that circum-
stance, “a federal court has power * ** to proceed to
a determination on the merits,” Williams, 341 U.S. at
68, and a defendant can fairly be held to his decision to
accept, rather than contest, a judgment of legal guilt.
c. The opinions in Ellis v. Dyson, 421 U.S. 426 (1975),
which were issued in the 18 months between Blackledge
and Menna, demonstrate the Court’s awareness of the
relevant distinction between challenges to a statute
of conviction and double-jeopardy or prosecutorial-
vindictiveness claims. In Ellis, the defendants had
pleaded nolo contendere to a criminal charge, but later
filed a civil suit seeking, inter alia, to expunge their rec-
ords of conviction on the ground that the underlying
criminal law was unconstitutional. See id. at 428-430.
The majority opinion left open whether such relief
would be proper, see id. at 435, but Justice Powell ad-
dressed the issue in a dissenting opinion joined by Jus-
tice Stewart, the author of Blackledge, see id. at 437-
452. In explaining his view that such relief would be un-
available, Justice Powell distinguished Blackledge on
the ground that the “alleged constitutional infirmity” in
a challenge to a substantive criminal law “lies not in the
‘initiation of the proceedings’ but in the eventual impo-
sition of punishment that, assertedly, the State cannot
constitutionally exact.” Jd. at 442 n.7 (quoting Black-
ledge, 417 U.S. at 30). Although Justice Powell was not
speaking for the Court in Ellis, his separate writing
shows that Members of the Court identified the distinc-
tion; illustrates Justice Powell’s and Justice Stewart's
understanding of Justice Stewart’s majority opinion in
Blackledge; and cautions against reading the six-Justice
per curiam opinion in Menna, which both of those Jus-
tices joined half a year later, in an overly broad manner.
44
3. Petitioner’s reliance on Blackledge and Menna is
misplaced
Petitioner appears to recognize that Blackledge and
Menna hold only “that where a defendant pleads guilty,
but then asserts a right that would have prevented the
government from prosecuting him at all—such as the
right not to be vindictively prosecuted or to be put into
double jeopardy—the assertion of that right is not in-
herently waived or foreclosed by the guilty plea.” Br. 1
(emphasis added). He errs in his view that a “defend-
ant’s right not to be convicted pursuant to an unconsti-
tutional statute plainly falls into this category,” ibid.
(emphasis added). Petitioner’s asserted equivalence be-
tween a right to avoid having to plead at all and a right
to avoid conviction is misconceived.
a. To the extent petitioner reads (e.g., Br. 23) lan-
guage from a footnote in Menna as limiting the preclu-
sive effect of a guilty plea solely to issues of factual
guilt, that limitation cannot be squared with this Court’s
later decision in United States v. Broce, supra.
In a footnote, Menna rejected the proposition that
certain prior cases “st[ood] for the proposition that
counseled guilty pleas inevitably ‘waive’ all antecedent
constitutional violations.” 423 U.S. at 62 n.2 (citing Tol-
lett, 411 U.S. 258, and cases cited therein). “The point
of these cases,” the Court stated, “is that a counseled
plea of guilty is an admission of factual guilt so reliable
that, where voluntary and intelligent, it quite validly re-
moves the issue of factual guilt from the case.” J/bid.
(emphasis omitted). “In most cases,” the Court contin-
ued, “factual guilt is a sufficient basis for the State’s im-
position of punishment,” and a “guilty plea, therefore,
simply renders irrelevant those constitutional viola-
45
tions not logically inconsistent with the valid establish-
ment of factual guilt and which do not stand in the way
of conviction, if factual guilt is validly established.”
Ibid. The Court contrasted such violations with the vio-
lation alleged in Menna itself, which suggested that
“the State may not convict [the defendant] no matter
how validly his factual guilt is established.” Jd. at 63
n.2.
Although the Menna footnote focused on factual
guilt, “Broce made clear that a guilty plea admits more
than simply the facts underlying guilt.” De Vaughn,
694 F.3d at 1154. Broce explained that a “plea of guilty
and the ensuing conviction comprehend all of the factual
and legal elements necessary to sustain a binding, final
judgment of guilt and a lawful sentence.” 488 U.S. at
569 (emphasis added); see id. at 570. Broce’s own dis-
cussion of the summary disposition in Menna accord-
ingly omits any mention of the fact-focused discussion
in the footnote—which, if read in the broad manner sug-
gested by petitioner, would be at odds with other ple
nary decisions of this Court as well. See id. at 575; see,
e.g., Alford, 400 U.S. at 32 (guilty plea “usually sub-
sumes both” the defendant’s “admission that he com-
mitted the crime charged against him and his consent
that judgment be entered without a trial of any kind”);
Boykin, 395 U.S. at 242 (guilty plea “is more than a con-
fession which admits that the accused did various acts;
it is itself a conviction; nothing remains but to give judg-
ment and determine punishment”).
The only decision of this Court that quotes the rele-
vant portion of the Menna footnote is another pre-
Broce decision, Haring v. Prosise, 462 U.S. 306 (1983).
See id. at 321. In that case, the Court concluded that a
46
guilty plea does not foreclose a later civil claim for dam-
ages against law enforcement officers for Fourth
Amendment violations committed while investigating
the crime. See id. at 308, 323. The Court reasoned, in
part, that the preclusive effect of a guilty plea with re-
spect to a Fourth Amendment claim “does not rest on
any notion of waiver, but rests on the simple fact that
the claim is irrelevant to the constitutional validity of
the conviction.” Jd. at 321. The Court did not consider
whether, let alone hold that, a defendant who uncondi-
tionally concedes the substantive validity of a conviction
in district court may nevertheless challenge that valid-
ity on appeal.
b. Petitioner also errs (e.g., Br. 11, 31-32) in reading
Blackledge to limit the preclusive effect of a guilty
plea to claims of “procedural” defects that could “be
‘cured’ by the government” if it prosecuted the case in
a different manner. Petitioner appears to derive that
limitation from a distinction Blackledge drew between
the prosecutorial-vindictiveness claim in that case and
two types of claims it had previously held to be pre-
cluded by a guilty plea. The Court noted that whereas
the prosecutorial-vindictiveness claim “went to the very
power of the State to bring the defendant into court to
answer the charge brought against him,” defendants
claiming coerced confessions “could surely have been
brought to trial without the use of the allegedly coerced
confessions,” and “even a tainted indictment” returned
by an improperly constituted grand jury “could have
been ‘cured’ through a new indictment by a properly se-
lected grand jury.” 417 U.S. at 30.
That discussion, which identifies one salient feature
of claims that challenge the commencement of proceed-
47
ings, does not suggest that a guilty plea only relin-
quishes claims that the government could have “cured”
by initiating or conducting the proceedings in some
other way. Indeed, any such interpretation is difficult
to square with Brady v. United States, supra, which
held that a guilty plea precludes a claim that the charg-
ing statute contained an unconstitutional death-penalty
provision. See 397 U.S. at 746, 749-758; see also Tollett,
411 U.S. at 265-266 (discussing scope of Brady’s hold-
ing). That constitutional defect can only be “cured”
through judicial invalidation of the unlawful provision.
See United States v. Jackson, 390 U.S. 570, 591 (1968).
c. Finally, petitioner is mistaken in contending (Br.
27) that his broad reading of Blackledge and Menna is
supported by this Court’s decision in Haynes. Haynes
involved a defendant’s claim—which he raised before
pleading guilty, then pressed in the court of appeals and
this Court—that the charging statute violated his right
against compelled self-incrimination. See 390 U.S. at
86-87 & nn.1-2. The government briefed the merits of
the claim without arguing that it was precluded, see
U.S. Br. at 4-32, Haynes, supra (No. 67-236), and the
Court’s decision included a one-sentence footnote, cit-
ing a single court of appeals decision, stating that the
defendant’s “plea of guilty did not, of course, waive his
previous claim of the constitutional privilege.” 390 U.S.
at 87 n.z.
As petitioner appears to recognize by deploying it
only in a supporting role, that one-sentence footnote
(which would not even apply to the vagueness claim that
petitioner failed to raise in district court) does not con-
trol this case. As a threshold matter, the footnote does
not represent a considered determination of this Court
following briefing and argument. See McCutcheon v.
4&8
FEC, 134 S. Ct. 1434, 1447 (2014) (plurality opinion)
(reasoning, under the circumstances, that “this case
cannot be resolved merely by pointing to three sen-
tences in [a prior decision] that were written without
the benefit of full briefing or argument on the issue”)
(citing Toucey v. New York Life Ins. Co., 314 U.S. 118,
139-140 (1941); Hohn v. United States, 524 U.S. 236, 251
(1998)). It is thus entitled to little more weight than
other cases in which no preclusion issue was considered.
See Pet. Br. 28-29 (discussing Loving v. Virginia,
388 U.S. 1 (1967)). It also predates this Court’s deci-
sions recognizing the inherent preclusive effect of guilty
pleas, none of which (including Blackledge and Menna)
discusses or even cites Haynes. In fact, the Haynes
footnote has not been cited by any subsequent decision
of this Court.
In any event, Haynes at most reflects this Court’s
view, at that time, that a defendant who raised a consti-
tutional claim before pleading guilty should not be
deemed to have “waive[d]” it by pleading guilty, 390 U.S.
at 87 n.2, and could raise it in an appellate forum, when
the government did not object. Even assuming that
practice were consistent with the later adoption of Rule
11(a)(2), see p. 29, supra, it would have no application
where the government does seek to hold the defendant
to the admissions inherent in his plea.
D. Petitioner Knowingly Waived His Appellate Rights
During the Plea Colloquy
In this particular case, petitioner’s relinquishment of
his right to raise his constitutional claims on appeal is
independently supported by the circumstances of his
plea. Although petitioner correctly notes (Br. 18-20)
that he did not waive his claims in his written plea
49
agreement, he was warned during the plea colloquy that
his guilty plea would have that effect.
1. At the plea colloquy, petitioner explicitly agreed to
“give up most of [his] rights to an appeal,” subject only
to particular “exceptions” that had been “mentioned” by
the district court. J.A. 66. The court told petitioner that
if he pleaded guilty, “there will probably be no appeal.”
J.A. 64. It explained that if he entered a guilty plea, he
“would be generally giving up [his] rights to appeal,”
except “if [he] believe|d] that [his] guilty plea was some-
how unlawful or involuntary or if there [were] some
other fundamental defect in the[] guilty-plea proceed-
ings.” J.A. 63. It qualified that admonishment only by
later adding that he “could also challenge [his] convic-
tion based on newly discovered evidence or a claim of
ineffective assistance of counsel.” J.A. 64. It also sub-
sequently described petitioner’s written plea agree-
ment as “giving up [his] right to appeal [his] conviction
and challenge the sentence [the court] imposef{d], unless
the sentence exceeds the statutory maximum of the
Guidelines Range or [he] claim[ed] newly discovered ev-
idence or ineffective assistance of counsel.” J.A. 76.
Although that was not an accurate description of the
plea agreement itself, which did not include a waiver of
petitioner’s right to appeal his conviction, it was congru-
ent with the court’s description of the default effect of
his plea. At all relevant points, petitioner indicated that
he understood the district court’s warnings. See J.A.
63-64, 66, 77.
In the course of the colloquy, the district court identi-
fied no exception to the appeal bar that would allow for
constitutional! challenges to the statute of conviction. Pe-
titioner now relies (Br. 45) on the exception for a claim
50
that the “guilty plea was somehow unlawful or involun-
tary or if there [were] some other fundamental defect in
the[] guilty-plea proceedings,” J.A. 63. But that excep-
tion expressly relates to claims of defects in the “pro-
ceedings,” ibid., not claims of defects in the substance
of the charge. Only by narrowly focusing (Br. 45) on the
first half of the sentence is petitioner able to suggest an
interpretation under which any claim about the plea’s
“unlawful[ness]” would be allowed—an unreasonable
interpretation that would swallow the rule that the
court clearly announced.
Petitioner’s pre-plea motions indicate that he was
subjectively aware of the possibility of raising a substan-
tive constitutional challenge to the statute under which
he was charged. See pp. 4-5, supra. Yet at no point dur-
ing the plea colloquy did he evince a belief that, notwith-
standing his plea, he would be able to renew his constitu-
tional claims on appeal, or to raise new ones (like his
vagueness claim). Although petitioner notes (Br. 45) that
“he was pro se when he pled guilty,” his voluntary elec-
tion to represent himself (with the assistance of standby
counsel) does not negate the appeal limitations of which
he was expressly informed. Cf. Vonn, 535 U.S. at 73 n.10
(defendant who chooses self-representation is held to
plain-error review for failing to object to a Rule 11 error;
“silence is one of the perils {the pro se defendant] as-
sumes”).
2. Petitioner contends (Br. 44-46) that the district
court’s warnings were so inadequate that his plea should
be vacated on the ground that it was not knowing and
intelligent. That contention was not raised in the peti-
tion, is outside the scope of the question presented, and
accordingly does not provide a valid basis for disturbing
the decision below. See, e.g., Wood v. Allen, 558 U.S. 290,
51
304 (2010); Yee v. City of Escondido, 503 U.S. 519, 535-
538 (1992); Sup. Ct. R. 14.1(a).
In any event, petitioner’s argument .? not only factu-
ally unsupported, for the reasons described above, but
also legally untenable. Petitioner identifies no constitu-
tional principle, statute, rule, or judicial decision that re-
quires that a defendant be subjectively aware of every
potential appellate claim he is relinquishing in order for
his guilty plea to be valid. That would effectively add a
new, onerous, and unwarranted requirement to the plea-
colloquy warnings listed in Rule 11(b). It would also pro-
vide an end-around to the guilty-plea-preclusion doctrine
by allowing a defendant with any claim—even a claim of
a sort that this Court has already directly held to be pre-
cluded by entry of a guilty plea—to undo his plea by
denying subjective awareness of that doctrine.
A defendant who pleads guilty under a misapprehen-
sion about his appeal rights could potentially try to es-
tablish that his counsel was constitutionally deficient in
failing to advise him about the procedural consequences
of the plea and that he would not have entered the plea
but for the deficient advice. See Hill, 474 U.S. at 59-60.
He cannot, however, claim that he was entitled to a spe-
cific warning or that his plea was not knowing and intel-
ligent. See Ruiz, 536 U.S. at 630 (knowing and intelli-
gent plea “does not require complete knowledge of the
relevant circumstances” and can be entered “despite
various forms of misapprehension under which a de-
fendant might labor”).
52
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
KENNETH A. BLANCO
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
ERIC J. FEIGIN
Assistant to the Solicitor
General
JOHN-ALEX ROMANO
Attorney
JULY 2017
APPENDIX
FEDERAL APPELLATE DECISIONS EXPRESSLY
NOTING THE PRESERVATION OF CONSTITUTIONAL
CHALLENGES TO A STATUTE OF CONVICTION
THROUGH A CONDITIONAL PLEA
1. United States v. Taylor, No. 16-2542, 2017 WL
2543376, at *1 (8th Cir. June 13, 2017) (as-applied Sec-
ond Amendment challenge to 18 U.S.C. 922(g)(1)).
2. United States v. Anderson, 771 F.3d 1064, 1066
(8th Cir. 2014) (Commerce Clause challenge to the Sex
Offender Registration and Notification Act, 42 U.S.C.
16901 et seq.), cert. denied, 135 S: Ct. 1575 (2015).
3. United States v. Cabrera-Gutierrez, 756 F.3d 1125,
1128 (9th Cir.) (Commerce Clause challenge to the Sex
Offender Registration and Notification Act, 42 U.S.C.
16901 et seq.), cert. denied, 135 S. Ct. 124 (2014).
4. United States v. Shill, 740 F.3d 1347, 1349, 1351,
1355 (9th Cir.) (vagueness challenge to 18 U.S.C. 2422(b)),
cert. denied, 135 S. Ct. 147 (2014).
5. United States v. Chovan, 735 F.3d 1127, 1129-1131
(9th Cir. 2013) (facial and as-applied Second Amendment
challenges to 18 U.S.C. 922(g)(9)), cert. denied, 135 S. Ct.
187 (2014).
6. United States v. Chapman, 666 F.3d 220, 224 (4th Cir.
2012) (as-applied Second Amendment challenge to
18 U.S.C. 922(g)(8)).
7. United States v. Staten, 666 F.3d 154, 157 (4th Cir.
2011) (as-applied Second Amendment challenge to
18 U.S.C. 922(g)(9)), cert. denied, 566 U.S. 950 (2012).
(la)
2a
8. United States v. Lucas, 419 Fed. Appx. 690, 690-691
(8th Cir. 2011) (per curiam) (Commerce Clause, due pro-
cess, ex post facto, and nondelegation challenges to the
Sex Offender Registration and Notification Act, 42 U.S.C.
16901 et seq.), vacated, 565 U.S. 1189 (2012).
9. United States v. Portillo-Munoz, 643 F.3d 437, 439,
442 (5th Cir. 2011) (Second Amendment challenge to
18 U.S.C. 922(g)(5)), cert. denied, 566 U.S. 963 (2012).
10. United States v. Lowe, 416 Fed. Appx. 579, 579-580
(8th Cir. 2011) (per curiam) (Commerce Clause, Tenth
Amendment, ex post facto, and nondelegation challenges
to the Sex Offender Registration and Notification Act,
42 U.S.C. 16901 et seq.).
11. United States v. Leach, 639 F.3d 769, 771 (7th Cir.
2011) (ex post facto challenge to the Sex Offender Reg-
istration and Notification Act, 42 U.S.C. 16901 et seq.).
12. United States v. Booker, 644 F.3d 12, 15, 22 (Ast Cir.
2011) (facial Second Amendment challenge to 18 U.S.C.
922(g)(9)), cert. denied, 565 U.S. 1204 (2012).
13. United States v. Walker, 411 Fed. Appx. 947, 948
(8th Cir.) (per curiam) (Commerce Clause challenge to
the Sex Offender Registration and Notification Act,
42 U.S.C. 16901 et seg. and 18 U.S.C. 2250), cert. denied,
565 U.S. 852 (2011).
14. United States v. Curry, 627 F.3d 312, 314 (8th Cir.
2010) (per curiam) (Commerce Clause, due process, and
nondelegation challenges to the Sex Offender Registra-
tion and Notification Act, 42 U.S.C. 16901 et seq.), vacated,
565 U.S. 1189 (2012).
3a
15. United States v. Fuller, 627 F.3d 499, 500-502, 508
(2d Cir. 2010) (Commerce Clause, ex post facto, and non-
delegation challenges to the Sex Offender Registration
and Notification Act, 42 U.S.C. 16901 et sey.), vacated,
565 U.S. 1189 (2012).
16. United States v. Begay, 622 F.3d 1187, 1192-1193,
1198 (9th Cir. 2010) (ex post facto and due process chal-
lenges to the Sex Offender Registration and Notification
Act, 42 U.S.C. 16901 et seqg.), cert. denied, 564 U.S. 1023
(2011).
17. United States v. Sanders, 622 F.3d 779, 782 (7th Cir.
2010) (Commerce Clause challenge to the Sex Offender
Registration and Notification Act, 42 U.S.C. 16901 et seq.),
cert. denied, 562 U.S. 1193 (2011).
18. United States v. Huls, 353 Fed. Appx. 176, 177
(10th Cir. 2009) (Commerce Clause, Tenth Amendment,
and due process challenges to the Sex Offender Regis-
tration and Notification Act, 42 U.S.C. 16901 et seq.).
19. United States v. Zuniga, 579 F.3d 845, 847-848
(8th Cir. 2009) (per curiam) (Commerce Clause, Tenth
Amendment, ex post facto, and nondelegation challenges
to the Sex Offender Registration and Notification Act,
42 U.S.C. 16901 et seq.), cert. denied, 560 U.S. 954 (2010).
20. United States v. Whaley, 577 F.3d 254, 256, 258, 261,
263 (5th Cir. 2009) (Commerce Clause, due process, and
nondelegation challenges to the Sex Offender Registra-
tion and Notification Act, 42 U.S.C. 16901 ct seq.).
21. United States v. Ambert, 561 F.3d 1202, 1204-1205,
1207-1210, 1212 (11th Cir. 2009) (Commerce Clause, ex
post facto, due process, nondelegation, and right-to-
travel challenge to the Sex Offender Registration and
Notification Act, 42 U.S.C. 16901 et seg.).
4a
22. United States v. Pauli, 551 F.3d 516, 519-520
(6th Cir.) (vagueness challenge to Child Pornography
Protection Act, 18 U.S.C. 2252 et seq.), cert. denied,
558 U.S. 827 (2009).
23. United States v. Hinckley, 550 F.3d 926, 927-928
(10th Cir. 2008) (Commerce Clause, due process, and
nondelegation challenges to the Sex Offender Registra-
tion and Notification Act, 42 U.S.C. 16901 et segq.), cert.
denied, 556 U.S. 1240 (2009).
24. United States v. Madera, 528 F.3d 852, 854 (11th Cir.
2008) (per curiam) (Commerce Clause, ex post facto, due
process, and nondelegation challenges to the Sex Offender
Registration and Notification Act, 42 U.S.C. 16901 et seg.).
25. United States v. Bly, 510 F.3d 453, 455, 457 (4th Cir.
2007) (First Amendment challenge to prosecution under
18 U.S.C. 876(b) for particular statements).
26. United States v. Latu, 479 F.3d 1153, 1154-1155
(9th Cir.) (as-applied Commerce Clause challenge to
18 U.S.C. 922(g)(5)), cert. denied, 552 U.S. 868 (2007).
27. United States v. Earle, 216 Fed. Appx. 824, 824-825
(10th Cir. 2007) (as-applied Commerce Clause challenge
to the Protection of Children Against Sexual Exploita-
tion Act of 1977, 18 U.S.C. 2251 et seq.).
28. United States v. Cramer, 213 Fed. Appx. 138, 139-
140 (3d Cir.) (as-applied Commerce Clause challenge to
the Protection of Children Against Sexual Exploitation
Act of 1977, 18 U.S.C. 2251 et seg.), cert. denied, 550 U.S.
949 (2007).
29. United States v. Wingfield, 206 Fed. Appx. 208, 209-
210 (3d Cir. 2006) (facial Commerce Clause challenge to
18 U.S.C. 922(g)), cert. denied, 550 U.S. 970 (2007).
5a
30. United States v. Pountney, 191 Fed. Appx. 679, 680-
681 (10th Cir. 2006) (facial and as-applicd Commerce
Clause challenges to the Protection of Children Against
Sexual Exploitation Act of 1977, 18 U.S.C. 2251 et seq.).
31. United States v. Sullivan, 451 F.3d 884, 886 (D.C. Cir.
2006) (as-applied Commerce Clause challenge to the
Protection of Children Against Sexual Exploitation Act
of 1977, 18 U.S.C. 2252A(a)(5)(B)).
32. United States v. Patton, 451 F.3d 615, 619-620
(10th Cir. 2006) (Commerce Clause and due process
challenges to 18 U.S.C. 931), cert. denied, 549 U.S. 1213
(2007).
33. United States v. Grimmett, 439 F.3d 12638, 1266-
1267, 1271 (10th Cir. 2006) (facial and as-applied Com-
merce Clause challenges to the Protection of Children
Against Sexual Exploitation Act of 1977, 18 U.S.C. 2251
et seq.).
34. United States v. Wilson, 118 Fed. Appx. 974, 975
(7th Cir. 2004) (Commerce Clause, Tenth Amendment,
and equal-protection challenges to 18 U.S.C. 922(¢)(1)),
cert. denied, 545 U.S. 1122 (2005).
35. United States v. Bredimus, 352 F.3d 200, 203 & n.4,
208 (5th Cir. 2003) (Commerce Clause, First Amend-
ment, Fifth Amendment, and Eighth Amendment chal-
lenges to 18 U.S.C. 2423(b)), cert. denied, 541 U.S. 1044
(2004).
36. United States v. Bournes, 339 F.3d 396, 396 (6th Cir.
2003) (Second Amendment and due process challenges
to 26 U.S.C. 5861(d) and 18 U.S.C. 922(0)), cert. denied,
540 U.S. 1113 (2004).
6a
37. United States v. Moreno-Morillo, 334 F.3d 819, 824-
826 (9th Cir. 2003) (Commerce Clause challenge to the
Maritime Drug Law Enforcement Act, Pub. L. No.
96-350, 94 Stat. 1159), cert. denied, 540 U.S. 1156 (2004).
38. United States v. Pritchett, 327 F.3d 1183, 1184-1185
(11th Cir.) (Commerce Clause challenge to 18 U.S.C.
922(j)), cert. denied, 540 U.S. 893 (2003).
39. United States v. McCoy, 323 F.3d 1114, 1115 (9th Cir.
2003) (as-applied Commerce Clause challenge to the
Protection of Children Against Sexual Exploitation Act
of 1977, 18 U.S.C. 2251 et seq.).
40. United States v. Ballinger, 312 F.3d 1264, 1265-
1266, 1268 (11th Cir. 2002) (facial and as-applied Com-
merce Clause challenges to 18 U.S.C. 247), rev’d on
reh’g en banc, 395 F.3d 1218 (11th Cir.), cert. denied,
546 U.S. 829 (2005).
41. United States v. Lemons, 302 F.3d 769, 770 (7th Cir.)
(Commerce Clause challenge to 18 U.S.C. 922(g)(1)),
cert. denied, 537 U.S. 1049 (2002).
42. United States v. Warren, 51 Fed. Appx. 843, 844
(10th Cir. 2002) (Commerce Clause challenge to 18 U.S.C.
922(g)(1)).
43. United States v. Ramos, 47 Fed. Appx. 471, 472
(9th Cir. 2002) (Commerce Clause and due process chal-
lenges to the Maritime Drug Law Enforcement Act,
Pub. L. No. 96-350, 94 Stat. 1159), cert. denied, 540 U.S.
826 (2003).
44. United States v. Hardman, 297 F.3d 1116, 1119
(10th Cir. 2002) (en banc) (Free Exercise Clause and
Establishment Clause challenges to the Migratory Bird
Treaty Act, 16 U.S.C. 703 et seq.).
Ta
45. United States v. Spruill, 292 F.3d 207, 208, 211-212,
215 (5th Cir. 2002) (Second Amendment and Fifth Amend-
ment challenges to 18 U.S.C. 922(g)(8)).
46. United States v. Napier, 233 F.3d 394, 396-397
(6th Cir. 2000) (Commerce Clause, Second Amendment,
and Fifth Amendment challenges to 18 U.S.C. 922(g¢)(8)).
47. United States v. Matthews, 209 F.3d 338, 341
(4th Cir.) (as-applied First Amendment and facial due
process challenges to the Protection of Children Against
Sexual Exploitation Act of 1977, 18 U.S.C. 2251 et 3e¢.,
cert. denied, 531 U.S. 910 (2000).
48. United States v. Kovach, 208 F.3d 1215, 1216
(10th Cir. 2000) (Commerce Clause challenge to 18 U.S.C.
513(a)).
49. United States v. Beavers, 206 F.3d 706, 708 (6th Cir.)
(due process challenge to 18 U.S.C. 922(g)(9)), cert.
denied, 529 U.S. 1121 (2000).
50. United States v. Lue, 134 F.3d 79, 80-81 (2d Cir.
1998) (Article I, Tenth Amendment, and equal protec-
tion challenges to the Act for the Prevention and Punish-
ment of the Crime of Hostage-Taking, 18 U.S.C. 1203).
51. United States v. Hampshire, 95 F.3d 999, 1001
(10th Cir. 1996) (Commerce Clause and Tenth Amend-
ment challenges to the Child Support Recovery Act of
1992, Pub. L. No. 102-521, 106 Stat. 3403), cert. denied,
519 U.S. 1084 (1997).
52. United States v. Wali, 92 F.3d 1444, 1445-1446
(6th Cir. 1996) (Commerce Clause challenge to 18 U.S.C.
1955), cert. denied, 519 U.S. 1059 (1997).
Sa
53. United States v. Kirk, 70 F.3d 791, 793 (5th Cir.
1995) (Commerce Clause challenge to 18 U.S.C. 922(0)),
cert. denied, 522 U.S. 808 (1997).
54. United States v. Bohai Trading Co., 45 F.3d 577,
578-579 (1st Cir. 1995) (vagueness challenge to 18 U.S.C.
2320(a)).
5d. United States v. Guthrie, 50 F.3d 936, 937, 940
(11th Cir. 1995) (nondelegation challenge to Lacey Act
Amendments of 1981, 16 U.S.C. 3371 et seq.).
56. United States v. Mishra, 979 F.2d 301, 302 (3d Cir.
1992) (vagueness and due process challenges to Drug
Paraphernalia Act, 21 U.S.C. 863).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.