United States v. Gary

• Decision Date: 25 March 2020
• Docket Number: No. 18-4578,18-4578
• Citation: 954 F.3d 194
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Michael Andrew GARY, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

954 F.3d 194

UNITED STATES of America, Plaintiff – Appellee,

v.Michael Andrew GARY, Defendant – Appellant.

No. 18-4578

United States Court of Appeals, Fourth Circuit.

Argued: December 11, 2019

Decided: March 25, 2020

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Alyssa Leigh Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before GREGORY, Chief Judge, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Thacker joined.

GREGORY, Chief Judge:

Michael Andrew Gary appeals his sentence following a guilty plea to two counts of possession of a firearm and ammunition by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Gary contends that two recent decisions—the Supreme Court’s decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), where the Court held that the government must prove not only that a defendant charged pursuant to § 922(g) knew he possessed a firearm, but also that he knew he belonged to a class of persons barred from possessing a firearm, and this Court’s en banc decision in United States v. Lockhart , 947 F.3d 187 (4th Cir. 2020), in which this Court considered the impact of Rehaif on a defendant’s guilty plea—require that his plea be vacated.

Upon consideration of the parties’ arguments, we hold that Gary’s guilty plea was not knowingly and intelligently made because he did not understand the essential elements of the offense to which he pled guilty. Because the court accepted Gary’s plea without giving him notice of an element of the offense, the court’s error is structural. We therefore vacate his guilty plea and convictions and remand the case to the district court for further proceedings.

I.

On January 17, 2017, Gary was arrested following a traffic stop for driving on a suspended license. Gary’s cousin, Denzel Dixon, was a passenger in the vehicle. During an inventory search of the vehicle, officers recovered a loaded firearm and a small plastic bag containing nine grams of marijuana. Gary admitted to possession of both the gun and marijuana and was charged under state law with possession of a firearm by a convicted felon.

Five months later, on June 16, 2017, officers encountered Gary and Dixon outside a motel room while patrolling the motel’s parking lot. The officers detected the odor of marijuana, and as they approached, Gary and Dixon entered the back seat of a vehicle. Dixon had a marijuana cigarette in his lap. The men consented to a personal search, and the officers found large amounts of cash on both men and a digital scale in Dixon’s pocket. After receiving permission to search the vehicle, the officers found a stolen firearm, ammunition, "a large amount" of marijuana in the trunk, and baggies inside a backpack. J.A. 105. Gary claimed the gun was his and admitted that he regularly carried a firearm for protection. Dixon claimed ownership of the marijuana. Gary was arrested and charged under state law with possession of a stolen handgun. Gary had, at the time of his arrests, a prior felony conviction for which he had not been pardoned.

Gary was indicted in federal court and later pled guilty without a plea agreement to two counts of possession of a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).¹ During his Rule 11 plea colloquy, the government recited facts related to each of his firearm possession charges. The court also informed Gary of the elements it understood the government would be required to prove if he went to trial: (1) that Gary had "been convicted of a crime punishable by imprisonment for a term exceeding one year;" (2) that he "possessed a firearm;" (3) that the firearm "travelled in interstate or foreign commerce;" and (4) that he "did so knowingly; that is that [he] knew the item was a firearm and [his] possession of that firearm was voluntarily [sic] and intentional." J.A. 31. Gary was not informed that an additional element of the offense was that "he knew he had the relevant status when he possessed [the firearm]." Rehaif , 139 S. Ct. at 2194. The district court accepted Gary’s plea and sentenced him to 84 months on each count, to run concurrently.

Gary appealed his sentence to this Court.² During the pendency of his appeal, Gary filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) asserting that the Supreme Court’s recent decision in Rehaif , 139 S. Ct. at 2191, is relevant to his appeal. See Fed. R. App. P. 28(j). Gary further noted that this Court, sitting en banc , heard oral argument in Lockhart , in which counsel argued the impact of Rehaif on the defendant’s guilty plea. Gary asserted that Rehaif , as well as this Court’s opinion in Lockhart , would likely impact his case because he pled guilty to two counts of possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) without being informed, as required by Rehaif , that an element of his offense was that he knew his prohibited status at the time he possessed the firearm.

We invited the parties to file supplemental briefs addressing what impact, if any, Rehaif may have on Gary’s convictions.³ This Court has since decided Lockhart , but limited its holding to its unique facts, finding that the two errors committed in Lockhart’s case—the failure to properly advise him of his sentencing exposure under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and the Rehaif error—"in the aggregate" were sufficient to establish prejudice for purposes of plain error review. Lockhart , 947 F.3d at 197. We answer today the question Lockhart did not: "whether a standalone Rehaif error requires automatic vacatur of a defendant’s [guilty] plea, or whether such error should be reviewed for prejudice under [ United States v. ] Olano [, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ]." Lockhart , 947 F.3d at 196. We find that a standalone Rehaif error satisfies plain error review because such an error is structural, which per se affects a defendant’s substantial rights. We further find that the error seriously affected the fairness, integrity and public reputation of the judicial proceedings and therefore must exercise our discretion to correct the error.

II.

Because Gary 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. Olano , 507 U.S. at 732, 113 S.Ct. 1770 ; United States v. Knight , 606 F.3d 171, 177 (4th Cir. 2010). 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." Olano , 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks omitted). With this standard in mind, we turn to the instant case.

Gary argues the first two prongs of plain error analysis are established by the decision in Rehaif itself—that an error occurred and that it was plain. He contends that the third prong, which requires Gary to show an effect on his substantial rights, is satisfied as well. Without notice that the government was required to prove an additional element not previously disclosed at the time of his guilty plea, Gary argues that he could not have knowingly and intelligently pled guilty, rendering his plea constitutionally invalid.⁴

The government concedes that the district court committed plain error in failing to inform Gary of the Rehaif element, but contends that omission of this element from the plea colloquy did not affect Gary’s substantial rights because there is overwhelming evidence that he knew of his felony status prior to possessing the firearms.⁵ The government also notes that since Rehaif was decided, numerous circuits applying Olano ’s plain error standard have determined that there is no effect on a defendant’s substantial rights where the evidence shows that the defendant knew of his status as a prohibited person at the time of his gun possession. See, e.g. , United States v. Burghardt , 939 F.3d 397, 404 (1st Cir. 2019) (plain error did not affect substantial rights where there was "overwhelming proof" defendant had previously been sentenced to more than one year in prison).⁶

But the decisions cited by the government are distinguishable from Gary’s case in at least one key respect—the courts did not consider whether the district court’s acceptance of a guilty plea without informing the defendant of every element of the offense was a constitutional error that rendered his guilty plea invalid. Consequently, no circuit has yet addressed the question of whether this error is a structural error that affects the substantial rights of the defendant. We find that Gary did not knowingly and intelligently plead guilty because he was not fully informed during his plea colloquy of the elements the government had to prove to convict him of the § 922(g) offenses, and that this type of error—this denial of due process—is a structural error that requires the vacatur of Gary’s guilty plea and convictions.

III.

A.

We agree with the parties that the first two prongs of Olano plain error review have been met by the district court’s failure to give Gary notice of the Rehaif element of the § 922(g) offense. First, the district court’s acceptance of Gary’s plea was error. Federal Rule of Criminal Procedure 11 requires that before accepting a plea of guilty, the court must inform a defendant of, and confirm that he...