Greer v. United States

• Decision Date: 14 June 2021
• Docket Number: 20-444, No. 20-444,No. 19-8709,19-8709
• Citation: 210 L.Ed.2d 121,141 S.Ct. 2090
• Parties: Gregory GREER, Petitioner v. UNITED STATES; United States, Petitioner v. Michael Andrew Gary
• Court: U.S. Supreme Court

141 S.Ct. 2090

210 L.Ed.2d 121

Gregory GREER, Petitioner

v.UNITED STATES;

United States, Petitioner

v.Michael Andrew Gary

No. 19-8709

No. 20-444

20-444

Supreme Court of the United States.

Argued April 20, 2021

Decided June 14, 2021¹

Elizabeth B. Prelogar, Acting Solicitor General Counsel of Record, Nicholas L. McQuaid, Acting Assistant Attorney General, Eric J. Feigin, Deputy Solicitor General, Rebecca Taibleson, Assistant to the Solicitor General, Scott A.C. Meisler, Thomas E. Booth, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Kimberly H. Albro, Office of the Federal, Public Defender, Columbia, SC, Jeremy Maltby, Kendall Turner, O'Melveny & Myers LLP, Washington, DC, Jeffrey L. Fisher, Counsel of Record, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, for Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Justice KAVANAUGH delivered the opinion of the Court.

Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison. See 18 U.S.C. §§ 922(g), 924(a)(2). In Rehaif v. United States , 588 U.S. ––––, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense. In felon-in-possession cases after Rehaif , the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm. See id. , at ––––, 139 S.Ct. at 2199–2200.

As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons. That simple point turns out to be important in the two cases before us.

Before this Court decided Rehaif , Gregory Greer and Michael Gary were separately convicted of felon-in-possession offenses.

Greer's case arose when police officers began talking to him in a hotel hallway. The officers suspected that Greer was involved in a prostitution ring. Greer ran from the officers and led them on a chase down a stairwell. The officers found a gun discarded in the stairwell and caught Greer shortly thereafter. Greer was wearing an empty holster clipped inside his waistband. At the time of the incident, Greer was a convicted felon. The Federal Government charged him in federal court with being a felon in possession of a firearm, and the case went to trial. Greer's defense was that he had never possessed the gun that the police found in the stairwell. Greer did not request—and the District Court did not give—a jury instruction requiring the jury to find that Greer knew he was a felon when he possessed the firearm. The jury found Greer guilty.

Gary's case arose out of two separate encounters with police. Both times, officers found Gary with a firearm. At the time of the incidents, Gary was a convicted felon. The Federal Government charged him in federal court with two counts of being a felon in possession of a firearm. Gary pled guilty. During the plea colloquy, the District Court did not advise Gary that, if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearms.

After Greer's trial and Gary's plea, this Court decided Rehaif . Based on Rehaif , both Greer and Gary raised new mens rea arguments on appeal. Greer argued that he was entitled to a new trial because the District Court failed to instruct the jury that he had to know he was a felon. Gary similarly argued that his guilty plea must be vacated because the District Court failed to advise him during the plea colloquy that, if he went to trial, a jury would have to find that he knew he was a felon. The Eleventh Circuit rejected Greer's argument, 798 Fed.Appx. 483 (2020), while the Fourth Circuit agreed with Gary's argument, 954 F.3d 194 (2020). We granted certiorari in both cases. See 592 U.S. ––––, 141 S.Ct. 974, 208 L.Ed.2d 509 (2021).

* * *

The question for this Court is whether Greer and Gary are entitled to plain-error relief for their unpreserved Rehaif claims. We conclude that they are not. We therefore affirm the judgment of the Eleventh Circuit and reverse the judgment of the Fourth Circuit.

Under Rule 51(b) of the Federal Rules of Criminal Procedure, a defendant can preserve a claim of error "by informing the court" of the claimed error when the relevant "court ruling or order is made or sought." If the defendant has "an opportunity to object" and fails to do so, he forfeits the claim of error. Ibid. If the defendant later raises the forfeited claim on appeal, Rule 52(b)'s plain-error standard applies. See Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Here, both defendants forfeited their mens rea claims by failing to properly preserve them under Rule 51(b). We therefore conduct plain-error review under Rule 52(b).

Rule 52(b) provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." "Rule 52(b) is permissive, not mandatory." United States v. Olano , 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish eligibility for plain-error relief, a defendant must satisfy three threshold requirements. See Rosales-Mireles v. United States , 585 U.S. ––––, –––– – ––––, 138 S.Ct. 1897, 1904–1905, 201 L.Ed.2d 376 (2018). First , there must be an error. Second , the error must be plain. Third , the error must affect "substantial rights," which generally means that there must be "a reasonable probability that, but for the error, the outcome of the proceeding would have been different." Id. , at ––––, 138 S.Ct. at 1904–1905 (internal quotation marks omitted). If those three requirements are met, an appellate court may grant relief if it concludes that the error had a serious effect on "the fairness, integrity or public reputation of judicial proceedings." Ibid. (internal quotation marks omitted); see also Olano , 507 U.S. at 735–737, 113 S.Ct. 1770.

The defendant has "the burden of establishing entitlement to relief for plain error." United States v. Dominguez Benitez , 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). That means that the defendant has the burden of establishing each of the four requirements for plain-error relief. Satisfying all four prongs of the plain-error test "is difficult." Puckett , 556 U.S. at 135, 129 S.Ct. 1423.

In the two cases before us, all agree that Rehaif errors occurred during both defendants' district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test. We address the third prong: whether the Rehaif errors affected the defendants' "substantial rights." Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a "reasonable probability" that he would have been acquitted. Dominguez Benitez , 542 U.S. at 83, 124 S.Ct. 2333. And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a "reasonable probability" that he would not have pled guilty. Ibid.

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily knows he is a felon. "Felony status is simply not the kind of thing that one forgets." 963 F.3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh'g en banc). That simple truth is not lost upon juries. Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon. A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty. In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a "reasonable probability" that, but for the Rehaif error, the outcome of the district court proceedings would have been different.

Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms. See Fed. Rule App. Proc. 10(e). Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing. See Tr. of Oral Arg. in No. 19–8709, pp. 42–43, 50–51, 61–62; Tr. of Oral Arg. in No. 20–444, pp. 16–17. But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a "reasonable probability" that the outcome would have been different absent the Rehaif error.

Here, Greer and Gary have not carried the burden of showing that the Rehaif errors in their respective cases affected their substantial rights. Before their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions. At trial, Greer stipulated to the fact that he was a felon. And Gary admitted that he was a felon when he pled guilty. Importantly, on appeal, neither Greer nor Gary has argued or made a representation that they would have presented evidence at trial that they did not in...