As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g). An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.” § 922(g)(1).
In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires the vacatur of [his] guilty plea and conviction” on plain error review. Id. at *4. This is so even if the defendant previously served more than a year in prison.
As the Fourth Circuit explained, “the Supreme Court has recognized that a conviction based on a constitutionally invalid guilty plea cannot be saved ‘even by overwhelming evidence that the defendant would have pleaded guilty regardless.’” Id. at *5 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 84 n.10 (2004)). And a guilty plea “does not qualify as intelligent unless a criminal defendant first receives ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’” Id. (quoting Bousley v. United States, 523 U.S. 614, 618 (1998)). Thus, the error of not informing a defendant who pleads guilty to § 922(g) that the statute requires that he “knew he belonged to the relevant category of persons barred from possessing a firearm,” Rehaif, 139 S. Ct. at 2200, falls into “‘a special category of forfeited errors that can be corrected regardless of their effect on the outcome,’ [as] ‘not in every case’ does a defendant have to ‘make a specific showing of prejudice to satisfy the “affecting substantial rights” prong’” of plain error review. Gary, 2020 WL 1443528, at *6 (quoting United States v. Olano, 507 U.S. 725, 735 (1993)). “Such errors are referred to as ‘structural’ because they are ‘fundamental flaws’ that ‘undermine the structural integrity of [a] criminal tribunal.’” Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)).
“[S]uch errors necessarily affect substantial rights.” Id. at *7. Indeed, “the district court failed to inform Gary that knowledge of his prohibited status was an element of the offense, denying him any opportunity to decide whether he could or desired to mount a defense to this element of his § 922(g)(1) charges— as it was his sole right to do. Thus, in accepting his uninformed plea, the court denied Gary’s right to make a knowing and intelligent decision regarding his own defense.” Id. at *8. “To allow a district court to accept a guilty plea from a defendant who has not been given notice of an element of the offense in violation of his Fifth Amendment due process rights ‘would surely cast doubt upon the integrity of our judicial process.’ We cannot envision a circumstance where, faced with such constitutional infirmity and deprivation of rights as presented in this case, we would not exercise our discretion to recognize the error and grant relief.” Id. at *9 (citation omitted).
Takeaways for the Defense Bar
1. Defendants who pleaded guilty to § 922(g) and are on direct appeal can argue the conviction should be vacated as plain structural error given Gary. This argument is currently foreclosed in the Second Circuit, where a defendant alleging plain Rehaif error on appeal with respect to a guilty plea must show a “reasonable probability that, had he been properly advised of what we now have been instructed are the elements of the offense, he would not have entered the plea.” United States v. Balde, 943 F.3d 73, 98 (2d Cir. 2019) (internal punctuation and citation omitted). Nevertheless, a defendant can seek en banc and/or Supreme Court review and argue Gary is right.
2. Defendants convicted at trial of § 922(g) already have a basis to seek a new trial or argue plain error on appeal. See the blog post here.
3. The one-year deadline for filing a petition under 28 U.S.C. § 2255 to vacate a § 922(g) conviction based on Rehaif is fast approaching: June 21, 2020. Defendants wishing to file such a petition — or move to add a Gary claim to a pending Rehaif petition — should file (or move to amend), concede that Balde currently forecloses relief, and request a certificate of appealability. Contact me for details.