United States v. Farmer

• Decision Date: 16 February 2021
• Docket Number: No. 19-1603,19-1603
• Citation: 988 F.3d 55
• Parties: UNITED STATES of America, Appellee, v. Anthony FARMER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

988 F.3d 55

UNITED STATES of America, Appellee,

v.Anthony FARMER, Defendant, Appellant.

No. 19-1603

United States Court of Appeals, First Circuit.

February 16, 2021

Jessica LaClair, West Chesterfield, NH, for appellant.

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

Before Thompson, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

We consider another attempt to undo a guilty plea based on the Supreme Court's decisions in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) and United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). Anthony Farmer pled guilty to six counts stemming from a robbery of a federal confidential informant during a guns-for-cash deal, including one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and one count of aiding and abetting the use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c). He was sentenced to 198 months’ imprisonment. Relying on Rehaif, Farmer challenges the indictment on jurisdictional grounds and the plea for 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 under 18 U.S.C. § 922(g)(1). Relying on Davis, Farmer also contends he should be entitled to withdraw his plea to the section 924(c) count. In the alternative, Farmer argues he is entitled to a remand for resentencing because the prosecutor breached the plea agreement and because his sentence is procedurally and substantively unreasonable.

For the following reasons, we affirm both Farmer's conviction and the sentence imposed by the district court.

I.

Because this appeal follows a guilty plea, we take the facts from the undisputed portions of the presentence report ("PSR") and the transcripts of key court hearings. United States v. Romero, 906 F.3d 196, 198-99 (1st Cir. 2018).

In 2014, Farmer was convicted of armed robbery and conspiracy to commit armed robbery under New Hampshire law. See N.H. Rev. Stat. Ann. § 636:1. During the course of that robbery, the victim suffered a gunshot wound to his head. Farmer was sentenced to three to six years in state prison for the armed robbery and served over three years in custody.¹

Just three months after being released on parole, Farmer made clear that he had not been rehabilitated. On August 17, 2017, Farmer and two co-defendants, Aaron Sperow and Raymond Perez, agreed to sell three firearms to a person who, unbeknownst to them, was a confidential informant for the Bureau of Alcohol, Tobacco and Firearms. Perez arranged for the sale to occur at his house. Farmer provided the guns. After the informant gave Farmer the money for the firearms, Farmer revealed that the supposed sale was actually a robbery. He gave a gun to Sperow, who pointed it at the informant and told him "you've been beat." Farmer explained they were retaliating for a theft by the informant's cousin. Farmer then struck the informant with his hands, knocking him to the ground, and continued to pummel him, only stopping when Perez's mother entered the room.

A short time later, all three defendants were arrested after being pulled over in a vehicle registered to Farmer. Farmer had $700 of the informant's previously marked "buy" money, while Perez and Sperow each had $400. Agents searched the car and found a backpack like the one Farmer had worn during the robbery that contained two firearms, ammunition, a ski mask, gloves, and approximately seventy-one grams of cocaine.

Farmer and his co-defendants were indicted on several counts. Because of his felony record, Farmer was charged with violating the federal felon-in-possession statute. As was then common, the indictment did not assert that Farmer knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year. See 18 U.S.C. § 922(g)(1). Farmer was also charged with aiding and abetting the use of a firearm during and in relation to a crime of violence, see 18 U.S.C. §§ 2, 924(c)(1)(A), and the indictment specified "robbery of a person having lawful charge, control and custody of money of the United States," see 18 U.S.C. § 2114(a), and "assault on a person assisting a federal officer or employee in the performance of official duties," see 18 U.S.C. § 111(a)(1), (b), as the predicate crimes of violence.² In addition, Farmer was charged with aiding and abetting those predicate offenses, as well as with conspiracy to commit robbery of money of the United States, in violation of 18 U.S.C. §§ 371, 2114(a), and with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841.

Farmer entered into a plea agreement under which the government agreed to recommend that Farmer be sentenced at the bottom of the sentencing guidelines range. Before accepting his plea of guilty to all counts, the district court informed Farmer that a conviction for violating section 922(g) required the government to prove three elements: (1) that Farmer had been convicted of a crime punishable by imprisonment of a term exceeding one year; (2) that he knowingly possessed the firearm described in the indictment; and (3) that the firearm was connected with interstate commerce. As was common prior to Rehaif, the district court did not inform Farmer that the government would also have to prove that Farmer knew when he possessed the firearms that he had previously been convicted of a crime punishable by more than a year in prison.

Neither party objected to the PSR prepared by the United States Probation Office, which calculated Farmer's guideline sentencing range as sixty-three to seventy-eight months, plus a consecutive, mandatory minimum seven-year sentence on the section 924(c) count. After hearing from counsel for each party, as well as Farmer himself, the district court sentenced Farmer to an upwardly-variant ten-year sentence on the section 924(c) count, and to the high end of the guidelines range on the remaining counts, to be served consecutively for a total sentence of 198 months’ imprisonment.

Less than a month after the district court sentenced Farmer, the Supreme Court decided Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) and United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In Rehaif, the Court held that "in a prosecution under 18 U.S.C. § 922(g) ... the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." 139 S. Ct. at 2200. As relevant here, Rehaif’s holding means that had Farmer gone to trial on the section 922(g)(1) count, the government would have needed to prove beyond a reasonable doubt that he knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year when he possessed the gun. See id. at 2198. We have previously referred to this knowledge requirement as the "scienter-of-status" element of a section 922(g) offense. See United States v. Burghardt, 939 F.3d 397, 400 (1st Cir. 2019).

In Davis, the Court invalidated the residual clause of 18 U.S.C. § 924(c). 139 S. Ct. at 2324. Consequently, had Farmer gone to trial on the section 924(c) count, the government would have needed to show that the predicate crimes of violence "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A).

II.

We turn now to the merits of the challenges Farmer raises in this appeal, starting with his Rehaif-based challenge to his conviction under 18 U.S.C. § 922(g)(1).

A.

Farmer advances two arguments based on Rehaif. First, he contends that because his indictment made no mention of his scienter of status, the district court never acquired jurisdiction over the section 922(g)(1) charge against him, and jurisdictional defects are not waived by a plea. Second, he contends that the plea colloquy and the acceptance of his plea were defective due to the failure to mention the government's need to prove his scienter of status.

1.

Farmer's jurisdictional argument does not get out of the starting blocks. As we observed in Burghardt, the Supreme Court has already explained that "defects in an indictment do not deprive a court of its power to adjudicate a case." 939 F.3d at 402 (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ).

Although Farmer attempts to distinguish Cotton, we have previously relied on Cotton in holding that a "failure adequately to plead scienter in the indictment" of an Analogue Act violation is a "non-jurisdictional" defect. See United States v. Ketchen, 877 F.3d 429, 433 n.2 (1st Cir. 2017) ; see also United States v. Urbina-Robles, 817 F.3d 838, 842 (1st Cir. 2016) (holding indictment's omission of element of carjacking offense to be non-jurisdictional defect). So too here, the government's failure to allege the scienter-of-status element in the indictment did not deprive the district court of jurisdiction.³

2.

Farmer's challenge to his plea colloquy fares little better. A guilty plea does not preclude an attack on the plea's voluntariness. See United States v. Ortiz-Torres, 449 F.3d 61, 68 (1st Cir. 2006). Because Farmer did not raise this objection below, however, we review his claim for plain error. See Burghardt, 939 F.3d at 402-03 ; United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Under that familiar 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, 18 (1st Cir. 2015).

The parties agree that, in...