United States v. Heyward

Decision Date03 August 2022
Docket Number18-4819
Citation42 F.4th 460
Parties UNITED STATES of America, Plaintiff - Appellee, v. Antwan HEYWARD, Defendant - Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Kathleen Michelle Stoughton, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, Florence, South Carolina, Corey F. Ellis, United States Attorney, Columbia, South Carolina, Nathan Williams, Assistant United States Attorney, Sean Kittrell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Before KING, AGEE, and HEYTENS, Circuit Judges.

Vacated and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge King joined. Judge Agee wrote a dissenting opinion.

TOBY HEYTENS, Circuit Judge:

Antwan Heyward pleaded guilty to "knowingly" possessing a firearm after being convicted of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. §§ 922(g)(1), 924(a)(2). Two years later, the Supreme Court held that "the word ‘knowingly’ applies both to the defendant's conduct and to the defendant's status." Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019) (emphasis added). Heyward was not advised of the second knowledge requirement before pleading guilty, and his lawyer made no objection to that omission. Because Heyward is the rare defendant who can make the "difficult" showing that, had he been properly advised, "there is a reasonable probability that he would not have pled guilty," Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 2097, 210 L.Ed.2d 121 (2021) (quotation marks omitted), we vacate his conviction and remand for further proceedings.


In 2014, Heyward was arrested after he fired two shots from the front porch of the house where he resided, killing a person in a car parked outside. Heyward was initially charged in South Carolina state court with murder and possession of a weapon during the commission of a crime. Before that case went to trial, however, federal authorities charged Heyward with various firearms and narcotics offenses and the state charges were dropped.

In 2017, Heyward pleaded guilty in federal court to one count of violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Consistent with then-controlling precedent from this Court, Heyward was not advised that, at trial, the government would have to prove beyond a reasonable doubt that he knew of his felon status when he possessed the firearm. See United States v. Langley , 62 F.3d 602, 604–07 (4th Cir. 1995) (en banc) (specifically rejecting such a requirement). The district court accepted Heyward's plea and sentenced him to 120 months of imprisonment, the statutory maximum. 18 U.S.C. § 924(a)(2).

Heyward appealed, initially challenging only his sentence.1 After briefing was complete, the Supreme Court decided Rehaif , which abrogated this Court's holding in Langley . See Greer , 141 S. Ct. at 2095 ("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"). The parties filed supplemental briefs addressing how Rehaif impacts this case.


Two points of common ground frame our inquiry. First, everyone agrees that, given Rehaif , the district court erred in failing to advise Heyward that he could not be guilty unless he knew—at the time he possessed the firearm—that he previously had been convicted of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). Second, everyone agrees that neither Heyward nor his counsel objected to this omission at the time of the guilty plea.

Although one could question whether it makes sense to treat defendants in radically different ways based on whether their lawyers made objections that would have been flatly inconsistent with then-controlling authority,2 the Supreme Court has repeatedly directed that we do just that. See, e.g., Greer , 141 S. Ct. at 2099 ; United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ; Johnson v. United States , 520 U.S. 461, 465–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). So, because the Rehaif error in this case was not "brought to the [district court's] attention," we review only for "plain error." Fed. R. Crim. P. 52(b) ; see Greer , 141 S. Ct. at 2096. Under that standard, Heyward may not obtain relief unless: (a) the error was "plain"; (b) the error affected "substantial rights," meaning that there is "a reasonable probability that, but for the error, the outcome of the proceeding would have been different"; and (c) "the error had a serious effect on the fairness, integrity or public reputation of judicial proceedings." Id. at 2096–97 (quotation marks omitted). This standard is "difficult" to satisfy. Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).


Beyond conceding error, the government also concedes the plainness point. To those unfamiliar with the twists and turns of plain error doctrine, that may seem odd. After all, at the time of the plea colloquy, this Court had specifically held that the government need not prove that defendants like Heyward knew of their felony status when they possessed the firearm in question. See Langley , 62 F.3d at 604–07. For that reason, one might wonder how the district court committed "clear" or "obvious" error in accepting Heyward's plea. United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation marks omitted). But, here too, well-settled Supreme Court authority provides the answer, holding that—regardless of "whether a legal question was settled or unsettled at the time" of the trial court proceedings—"it is enough that an error be ‘plain’ at the time of appellate consideration." Henderson v. United States , 568 U.S. 266, 279, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (quotation marks omitted). And because it is now clear that the government must prove that a defendant "knew he was a felon when he possessed the firearm," Greer , 141 S. Ct. at 2095 (emphasis omitted), we conclude the district court plainly erred in not advising Heyward of that requirement before accepting his guilty plea.


That brings us to the next requirement: whether the error affected Heyward's "substantial rights." Greer , 141 S. Ct. at 2096. Heyward bears the burden of proof on this requirement and "faces an uphill climb in trying to satisfy" it. Id. at 2097. The reason is straightforward: "If a person is a felon, he ordinarily knows he is a felon" because "[f]elony status is simply not the kind of thing that one forgets." Id. (quotation marks omitted).

At the same time, however, the Supreme Court has emphasized that "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." Greer , 141 S. Ct. at 2097 ; see id. (noting the government had "conceded" at oral argument "that there are circumstances in which a defendant might make such a showing"). In Rehaif , for example, the Court specifically referenced "a person who was ... sentenced only to probation" and "who does not know that the crime is punishable by imprisonment for a term exceeding one year." 139 S. Ct. at 2197–98 (quotation marks omitted); accord United States v. Caldwell , 7 F.4th 191, 213 (4th Cir. 2021) (noting that "[s]uch a defendant may not have been aware of what punishments were permitted for his prior conviction, and thus that he was considered a felon under § 922(g)(1)"). Alternatively, "a defendant may not understand that ... a misdemeanor under state law can be a felony for purposes of federal law." Greer , 141 S. Ct. at 2103 (Sotomayor, J., concurring in part).

The nature of the substantial rights inquiry also differs depending on the context in which the error occurred. To be eligible for relief based on a " Rehaif error in the jury instructions," a defendant must demonstrate "a reasonable probability that a jury would have acquitted him." Greer , 141 S. Ct. at 2098. But because the decision whether to plead guilty always belongs to the defendant, see, e.g., Florida v. Nixon , 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), to obtain relief for a " Rehaif error during [a] plea colloquy," a defendant must demonstrate "a reasonable probability that"—had he been correctly advised—"he would have gone to trial rather than plead guilty," Greer , 141 S. Ct. at 2098, without taking on the added burden of establishing that he probably would have been acquitted at trial.

Heyward's burden to show only a reasonable probability that he would have gone to trial distinguishes his situation from our post- Greer decisions denying relief to defendants whose Rehaif claims arose from jury instructions. In United States v. Caldwell , 7 F.4th 191 (4th Cir. 2021), this Court concluded that a defendant who had been found guilty by a jury in a felon-in-possession case could not show that a Rehaif error had affected his substantial rights because the fact that the defendant "had, on several occasions, served sentences longer than a year—including two stints of more than five years each in federal prison—ma[de] it virtually impossible to believe he did not know he had been convicted of crimes punishable by such sentences." Id. at 213. And our decision in United States v. Moody , 2 F.4th 180 (4th Cir. 2021), is even further afield because that case did not address the substantial rights prong at all. Instead, Moody's Rehaif claim failed because he asserted a classic (and classically flawed) mistake-of-law defense, insisting that the government should have been required to prove not only that he...

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