United States v. Burghardt

• Decision Date: 03 October 2019
• Docket Number: No. 18-1767,18-1767
• Citation: 939 F.3d 397
• Parties: UNITED STATES of America, Appellee, v. Michael Roman BURGHARDT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

939 F.3d 397

UNITED STATES of America, Appellee,

v.Michael Roman BURGHARDT, Defendant, Appellant.

No. 18-1767

United States Court of Appeals, First Circuit.

October 3, 2019

Christine DeMaso, Assistant Federal Public Defender, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Thompson, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

Michael Roman Burghardt pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to fifteen years' imprisonment, the mandatory minimum under the Armed Career Criminal Act (ACCA). On appeal, Burghardt claims plain error because the government did not charge him with, and he did not plead guilty to, knowing the facts that made him a person prohibited from possessing a firearm. In the alternative, he argues that he was ineligible for sentencing under the ACCA and that the district court miscalculated his base offense level under the Sentencing Guidelines.

For the following reasons, we affirm Burghardt's conviction and sentence. In so doing we explain how plain error review works when a defendant claims that he would not have pled guilty had he been informed at his acceptance-of-plea proceeding that the government need prove that he knew that his prior offense had been punishable by more than a year in prison. We also hold that a conviction for selling a controlled substance under New Hampshire law, N.H. Rev. Stat. § 318-B:2(I), is a "serious drug offense" under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii).

I.

In 2010, Burghardt was convicted under state law of three counts of selling a controlled drug (less than a gram of heroin on two dates and more than five grams of heroin on a third) and one count of possessing a controlled drug with the intent to sell (more than five grams of heroin).¹ See N.H. Rev. Stat. § 318-B:2(I). In 2011, Burghardt was also convicted of robbery under New Hampshire law.² See id. § 636:1.

In 2017, Burghardt ran afoul of the law again. During a search of Burghardt incident to arrest, officers found an unloaded pistol under his coat. Because of his felony record, Burghardt was charged with violating the federal felon-in-possession statute. The indictment stated that Burghardt, "having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting interstate commerce" a .380 caliber pistol, in violation of 18 U.S.C. § 922(g)(1). The indictment did not assert that Burghardt knew that he had been convicted of a crime punishable by imprisonment for a term exceeding one year (the "scienter-of-status element").

Burghardt initially pled not guilty, but eventually changed his plea to guilty. Before accepting that guilty plea, the district court informed Burghardt that a conviction for violating § 922(g) required the government to prove four elements: (1) that Burghardt possessed a firearm; (2) that the possession was knowing and intentional; (3) that the firearm (or some part of it) had been transported at some point in interstate commerce; and (4) that Burghardt's possession of the firearm took place after he had been convicted of a crime punishable by a term of imprisonment exceeding one year. With the acquiescence of all counsel, and without the benefit of the Supreme Court's recent decision in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), the district court did not inform Burghardt that the government would additionally have to prove the scienter-of-status element in order to sustain a conviction. Burghardt pled guilty to the single count of violating § 922(g).

The United States Probation Office recommended that the district court sentence Burghardt under the ACCA. Under the ACCA, "a person who violates [the felon-in-possession statute] and has three previous convictions ... for a violent felony or a serious drug offense ... shall be ... imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). The district court, over Burghardt's objections, concluded that Burghardt's convictions under New Hampshire law for selling a controlled substance were "serious drug offenses" as defined by the ACCA. The district court also acknowledged Burghardt's challenge to the Probation Office's base-offense-level calculation but noted that it "need not reach this question" in light of the ACCA determination. The district court sentenced Burghardt to fifteen years' imprisonment, the ACCA's mandatory minimum.

On appeal, Burghardt raised in his opening brief three challenges to his sentence: (1) selling a controlled substance under New Hampshire law is not a "serious drug offense" and therefore cannot be a predicate act for purposes of triggering the ACCA's mandatory minimum sentence; (2) robbery under New Hampshire law is not a "crime of violence" under the Guidelines and therefore should not have increased his base offense level; and (3) imposing the ACCA's mandatory minimum sentence violated his Sixth Amendment rights because his prior convictions were not charged in the indictment or proven beyond a reasonable doubt. We do not address Burghardt's Sixth Amendment argument, as he acknowledges that it is foreclosed by binding precedent, see Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and he correctly concedes that he raises the issue solely "to preserve it for possible Supreme Court review."

A fourth challenge then arose when the Supreme Court decided Rehaif after the government and Burghardt filed their reply briefs. In Rehaif, the Supreme Court held that under § 922(g) the government "must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status [as a prohibited person] when he possessed it." 139 S. Ct. at 2194. We granted the parties leave to file supplemental briefing addressing Rehaif's impact. In his supplemental brief, Burghardt urges that Rehaif requires us to vacate his plea and conviction and either dismiss the indictment against him or, alternatively, remand for further proceedings.

II.

We turn now to the merits of the four challenges Burghardt raises on this appeal, beginning first with his challenge based on Rehaif.

A.

Burghardt contends that the holding in Rehaif exposes a common defect in both the indictment against him and in the acceptance of his plea. We address each in turn.

1.

A guilty plea waives all non-jurisdictional challenges to an indictment. United States v. Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016). And "defects in an indictment do not deprive a court of its power to adjudicate a case." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Burghardt nevertheless argues that he could not have waived his challenge to the indictment because "waiver is the intentional relinquishment or abandonment of a known right," United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citation omitted), and the Supreme Court did not recognize the scienter-of-status element until after his sentencing.³ But we have not limited waiver doctrine in that way. Indeed, we have characterized as "waived arguments" even those that "become available only as a result of intervening changes in law." United States v. Sevilla-Oyola, 770 F.3d 1, 14 (1st Cir. 2014). Of course even waived arguments may be reviewed in the event that we choose to "engage[ ] in the rare exercise of [our] power to excuse waiver." Igartúa v. United States, 626 F.3d 592, 603 (1st Cir. 2010). But because we do not see -- nor does Burghardt provide -- any compelling reason for so exercising our discretion in this case, we will not entertain Burghardt's challenge to the indictment.

2.

A guilty plea does not waive all challenges to the plea itself. See, e.g., United States v. Ortiz-Torres, 449 F.3d 61, 68 (1st Cir. 2006) (noting that "a guilty plea does not preclude an attack on the plea's voluntariness" (internal quotation marks omitted)). One of the "core concern[s]" of a plea colloquy pursuant to Federal Rule of Criminal Procedure 11 is "ensuring that the defendant understands the elements of the charges that the prosecution would have to prove at trial." United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000) ; Fed. R. Cr. P. 11(b)(1)(G) ("[T]he court must inform the defendant of, and determine that the defendant understands, ... the nature of each charge to which the defendant is pleading."). Burghardt protests the district court's undisputed (but understandable) failure during the plea colloquy to inform him of the scienter-of-status element. Because Burghardt did not offer to the district court the Rule 11 objection he now raises on appeal, we review his argument for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ; United States v. Hernàndez-Maldonado, 793 F.3d 223, 226 (1st Cir. 2015). Under this standard, a defendant must show "(1) an error, (2) that is clear or obvious, (3) which affects his substantial rights ... , and which (4) seriously impugns the fairness, integrity or public reputation of the proceeding." United States v. Correa-Osorio, 784 F.3d 11, 17–18 (1st Cir. 2015). The parties agree that the first two prongs of this analysis have been met, in light of Rehaif. For that reason, we turn to the prejudice prong by considering whether the error affected his substantial rights.

Showing prejudice requires demonstrating "a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different." United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006) (alteration in original) (quoting United States v. Padilla, 415 F.3d 211, 221 (1st Cir. 2005) ). In the context of an appeal challenging an unpreserved error in accepting a guilty plea, the ...