United States v. Lockhart

• Decision Date: 10 January 2020
• Docket Number: No. 16-4441,16-4441
• Citation: 947 F.3d 187
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Jesmene LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene Lockhart, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

947 F.3d 187

UNITED STATES of America, Plaintiff - Appellee,

v.Jesmene LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene Lockhart, Defendant - Appellant.

No. 16-4441

United States Court of Appeals, Fourth Circuit.

Argued: September 19, 2019

Decided: January 10, 2020

ON REHEARING EN BANC

BARBARA MILANO KEENAN, Circuit Judge:

Jesmene Lockhart appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and his mandatory minimum 15-year sentence of imprisonment imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). Lockhart contends that the magistrate judge plainly erred by failing to advise him during the Rule 11 plea colloquy of his potential exposure to the 15-year mandatory minimum sentence. Lockhart asserts that if he had been properly informed of his sentencing exposure, there is a "reasonable probability" that he would not have pleaded guilty. He also argues that the Supreme Court’s intervening decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), renders his guilty plea involuntary, because he did not understand the essential elements of the offense to which he pleaded guilty.

Upon consideration of the parties’ arguments, we hold that Lockhart has established prejudice for purposes of plain error review. We therefore vacate his conviction and remand the case to the district court for further proceedings.

I.

In September 2014, officers with the Charlotte-Mecklenburg Police Department in North Carolina responded to a report of suspicious activity involving individuals in a parked car. When they arrived at the scene, an officer saw Lockhart sitting in the driver’s seat of the vehicle. The officer observed Lockhart use his right hand to provide his identification, "while reaching down by his left leg with his left hand, where the officer saw the butt of [a] gun with a magazine clip." The officers recovered the loaded handgun and an additional magazine from the driver’s side of the car, and the authorities later determined that the firearm was stolen.

Lockhart pleaded guilty without a written plea agreement to a single count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). During the Rule 11 plea colloquy, the magistrate judge asked the government to "summarize the charge and the penalty."

The government responded that the "maximum penalty" Lockhart faced was 10 years’ (120 months’) imprisonment. At no time during the plea colloquy did the court or the government clarify that Lockhart’s criminal history could result in a 15-year (180-month) mandatory minimum sentence under the ACCA.

The probation officer prepared a presentence report (PSR), and recommended sentencing Lockhart as an armed career criminal under the ACCA based on three prior convictions for North Carolina robbery with a dangerous weapon. All his convictions were based on offenses committed in a one-week time period when Lockhart was 16 years old. In the PSR, the probation officer explicitly highlighted the error in the plea colloquy, noting that Lockhart "was informed that his statutory penalties ... were not more than ten years[’] imprisonment," but that "based on [Lockhart’s] three prior convictions for violent felonies, [his] statutory penalties ... are not less than fifteen years[’] imprisonment."

Lockhart’s counsel objected to the proposed ACCA designation on the grounds that (1) Lockhart’s North Carolina convictions, which were consolidated for judgment, should count as a single ACCA predicate, and (2) an ACCA sentence would violate the Eighth Amendment because Lockhart was a juvenile when he committed the offenses. Lockhart did not assert that he previously had been unaware of his potential ACCA designation, nor did he seek to withdraw his guilty plea.

After overruling the objections of Lockhart’s counsel, the district court concluded that Lockhart qualified as an armed career criminal under the ACCA and imposed the mandatory minimum term of 180 months’ imprisonment. Following the court’s imposition of sentence, Lockhart’s counsel conferred with the government’s counsel and informed the court:

I’m going back to his plea colloquy. He didn’t plead to 924(e) [ACCA] it was not on the Bill of Indictment. But I went over it beforehand. So I just want to put it on the record that he was fully aware of that. I just thought about it.

The government’s counsel added, "We just wanted to make a record of that." The district court did not ask counsel to elaborate on the issue, and did not confirm with Lockhart whether he was aware of his potential ACCA exposure before pleading guilty.

Lockhart appealed, represented by new appellate counsel. A panel of this Court affirmed Lockhart’s conviction. See United States v. Lockhart , 917 F.3d 259 (4th Cir. 2019), vacated by 771 F. App'x 204 (4th Cir. 2019). Upon Lockhart’s request for rehearing, we vacated the panel’s opinion and now consider the case en banc.

II.

Because Lockhart did not attempt to withdraw his guilty plea in the district court, we review his plea challenge for plain error. United States v. McCoy , 895 F.3d 358, 364 (4th Cir. 2018). To succeed under plain error review, a defendant must show that: (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We retain the discretion to correct such an error but will do so "only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Massenburg , 564 F.3d 337, 343 (4th Cir. 2009) (quoting Olano , 507 U.S. at 732, 113 S.Ct. 1770 ) (internal quotation marks omitted).

Lockhart argues that if he had known he was facing a 180-month minimum sentence under the ACCA, rather than the 120-month maximum stated at the plea hearing, he likely would not have pleaded guilty. Lockhart asserts that the benefit he gained from pleading guilty was "so small as to be virtually non-existent" and, thus, that he would have had a strong incentive to proceed to a trial in an attempt to avoid the 180-month ACCA sentence. Lockhart separately argues that the Supreme Court’s decision in Rehaif , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594, issued after the panel opinion in this case, constitutes an intervening change in the law that requires vacatur of his guilty plea.

In response, the government concedes that the magistrate judge committed plain error in failing to advise Lockhart of his correct sentencing exposure. However, the government contends that this error did not affect Lockhart’s substantial rights, because he has failed to show a "reasonable probability" that he would not have pleaded guilty if the court had advised him of his correct sentencing range. See United States v. Dominguez Benitez , 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The government also asserts that the Supreme Court’s decision in Rehaif does not require that Lockhart’s conviction be vacated.

In addressing these arguments, we first consider the magistrate judge’s failure to advise Lockhart of the increased sentence he faced due to his potential ACCA eligibility. Both parties aver, and we agree, that the first two prongs of plain error review on this issue are satisfied. Under Federal Rule of Criminal Procedure 11, a district court must advise a defendant of "any maximum possible penalty," as well as "any mandatory minimum penalty," before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(H), (I).

And even if a district court is not certain whether a defendant will qualify for an enhanced sentence under the ACCA, the court nevertheless must "anticipate the possibility and explain to [the defendant] the sentence that would be applicable if he had prior qualifying convictions." United States v. Hairston , 522 F.3d 336, 340 (4th Cir. 2008) ; see also Massenburg , 564 F.3d at 343 (error was plain when defendant was not advised of potential ACCA sentence before pleading guilty). As the Supreme Court has explained:

If the judge told the defendant that the maximum possible sentence was 10 years and then imposed a sentence of 15 years based on ACCA, the defendant would have been sorely misled and would have a ground for moving to withdraw the plea.

United States v. Rodriquez , 553 U.S. 377, 384, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). Such erroneous sentencing information given during a Rule 11 colloquy cannot be cured by contrary information later contained in a PSR. United States v. Goins , 51 F.3d 400, 404 (4th Cir. 1995).

To establish that a Rule 11 error affected his substantial rights under the third prong of plain error review, a defendant bears the burden to show "a reasonable probability that, but for the error, he would not have entered the plea." Dominguez Benitez , 542 U.S. at 83, 124 S.Ct. 2333. Although the reasonable probability standard is a demanding one, a defendant need not "prove by a preponderance of the evidence that but for error things would have been different." Id. at 83 n.9, 124 S.Ct. 2333. Instead, a defendant must "satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is ‘sufficient to undermine confidence in the outcome’ of the proceeding." Id. at 83, 124 S.Ct. 2333 (citations omitted).

In Massenburg , 564 F.3d 337, we applied this "whole record" prejudice inquiry to the same error presented here, namely, the district court’s failure to advise a defendant of his potential exposure to an enhanced sentence under the ACCA. And, as here, the defendant’s PSR included a statement that his criminal history qualified him to receive a sentence of 180 months to life imprisonment. Id. at 340. Had he pleaded guilty without the ACCA designation, Massenburg faced a statutory maximum of 120 months’ imprisonment, and a guidelines range of between 77 and 96 months.¹ Applying the...