United States v. Patrone

• Decision Date: 14 January 2021
• Docket Number: No. 19-1486,19-1486
• Citation: 985 F.3d 81
• Parties: UNITED STATES of America, Appellee, v. Juan Anibal PATRONE, a/k/a Juan Anibal, a/k/a Juan Anibal Patrone-González, a/k/a Flacco, a/k/a Poppo, a/k/a Carlos, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

985 F.3d 81

UNITED STATES of America, Appellee,

v.Juan Anibal PATRONE, a/k/a Juan Anibal, a/k/a Juan Anibal Patrone-González, a/k/a Flacco, a/k/a Poppo, a/k/a Carlos, Defendant, Appellant.

No. 19-1486

United States Court of Appeals, First Circuit.

January 14, 2021

Leonard E. Milligan III, Boston, MA, with whom Jin-Ho King and Milligan Rona Duran & King LLC were on brief, for appellant.

Theodore B. Heinrich, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Thompson, Lipez, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

We consider on plain error review another appeal raising an unpreserved objection to a Rule 11 colloquy conducted prior to the United States Supreme Court's decision in Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). In Rehaif, the Court held that a conviction for the illegal possession of a gun under 18 U.S.C. § 922(g) requires proof beyond a reasonable doubt that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm." Rehaif, 139 S. Ct. at 2200. As we recently explained in United States v. Burghardt, 939 F.3d 397 (1st Cir. 2019), and again in United States v. Guzmán-Merced, No. 18-2146, ––– F.3d ––––, 2020 WL 7585176 (1st Cir. Dec. 22, 2020), failure to advise a defendant of that requirement in accepting a plea constitutes clear error. As we also explained, in the absence of any timely objections to the plea colloquy, such an error will warrant vacating the conviction and withdrawing the plea only if the defendant can establish a "reasonable probability" that, but for the error, the defendant would not have pled guilty to the offense. Burghardt, 939 F.3d at 403 ; Guzmán-Merced, ––– F.3d at –––– – ––––, 2020 WL 7585176, at *1–2.

Applying this precedent, we find that defendant Juan Anibal Patrone fails to establish a reasonable probability that he would not have pled guilty had he been advised as Rehaif requires. For independent reasons, we also reject his objections to his sentence. Our reasoning follows.

I.

Patrone, a citizen of Italy and of the Dominican Republic, lawfully entered the United States on a tourist visa and settled in Lawrence, Massachusetts, in 2009 or 2010. At some point, his visa expired, although the record does not specify when this occurred. He subsequently obtained a work permit and was "in the midst of applying to remain in the United States" at the time of his arrest in the instant action.

In April 2016, the Drug Enforcement Administration commenced an investigation into a drug trafficking organization in Lawrence, Massachusetts. In the course of this investigation, the government gathered overwhelming evidence that Patrone had been involved in the widespread distribution and sale of fentanyl and other drugs for several years. The government also seized a loaded 10 millimeter firearm from his bed at the time of his arrest.

The government charged Patrone with one count of conspiracy to distribute and possess with intent to distribute drugs, including cocaine, heroin, and more than 400 grams of fentanyl, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A), and one count of possessing a firearm as an alien unlawfully present in the United States, in violation of 18 U.S.C. § 922(g)(5)(A). The indictment did not allege that Patrone knew he was an alien who was unlawfully in the United States. See 18 U.S.C. § 922(g)(5)(A). On September 19, 2018, he pled guilty to both counts without benefit of a plea agreement.

Before accepting his guilty plea, the district court informed Patrone that a conviction for violating section 922(g)(5)(A) required the government to prove that Patrone was unlawfully in the United States and that he possessed the firearm and loaded magazine referenced in the firearm count. Neither the district court nor the government informed Patrone that the government would have to prove his knowledge of his unlawful immigration status in order to sustain a conviction on the firearm count. Patrone was subsequently sentenced to 144 months' imprisonment on the drug count and 120 months' imprisonment on the firearm count, to be served concurrently.

A month after Patrone's sentencing, the United States Supreme Court issued its opinion in Rehaif. As relevant here, Rehaif's holding means that had Patrone gone to trial, the government would have needed to prove beyond a reasonable doubt that when he possessed the gun, he knew that he was unlawfully in the United States. Rehaif, 139 S. Ct. at 2198. As is customary in criminal law, we refer to the degree of such knowledge as "scienter," id. at 2195, or (in this instance) "scienter-of-status." See Burghardt, 939 F.3d at 400.

Patrone asks that we vacate his conviction on the firearm count 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, as Rehaif now requires. In addition, Patrone requests a remand for resentencing, claiming that the district court mistakenly applied a two-level sentencing enhancement for criminal livelihood on the drug charge under U.S. Sentencing Guideline Section 2D1.1(b)(16)(E). We address each challenge in turn.

II.

A.

Before accepting a guilty plea, a district court must conduct a colloquy with the defendant to ensure that he "understands the elements of the charges that the prosecution would have to prove at trial." Burghardt, 939 F.3d at 402 (quoting United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000) ); see also Fed. R. Crim. 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."). A defendant who pleads guilty does not waive all challenges to the adequacy of the plea colloquy. Burghardt, 939 F.3d at 402. Where, as here, a defendant waits until an appeal to raise such a challenge, we review that challenge only for plain error. See United States v. Dominguez Benitez, 542 U.S. 74, 80, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ; Burghardt, 939 F.3d at 402—03 ; United States v. Hernández-Maldonado, 793 F.3d 223, 226 (1st Cir. 2015). Under the plain error 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, after Rehaif, the district court's (understandable) failure to ascertain whether Patrone knew that he was an alien unlawfully in the United States constitutes clear error. So our inquiry hinges on prongs three and four of the plain error standard -- whether the district court's error prejudiced Patrone (i.e., were his substantial rights affected) and whether the error "seriously impugns the fairness, integrity, or public reputation of the proceeding." Correa-Osorio, 784 F.3d at 18. In a case such as this, an assessment of prejudice will usually turn on whether the defendant can show a "reasonable probability that, but for the purported error, he would not have pled guilty." Burghardt, 939 F.3d at 403 (quoting United States v. Diaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017) ); see generally Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

Claiming to accede to plain error review, Patrone actually argues for a variant of that review. That variant treats the third prong as always satisfied when the discussion of an offense during a plea colloquy omits an element of the offense, regardless of whether the omission actually played any role in the defendant's decision to plead. The Fourth Circuit recently adopted such a variant, calling Rehaif error a structural error that per se adversely affects a defendant's substantive rights. United States v. Gary, 954 F.3d 194, 203–05 (4th Cir. 2020) ("[T]his Court has held that [structural errors] necessarily affect substantial rights, satisfying [the plain error standard's] third prong."), cert. granted, No. 20-444, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 77245 (Jan. 8, 2021).

We have already crossed this bridge, but in the opposite direction, requiring that a defendant who asserts an unpreserved claim of Rehaif error must demonstrate prejudice in the form of "a reasonable probability that, but for this purported error, he would not have pled guilty." Burghardt, 939 F.3d at 403. Nor do we see good reason to reverse our path. The Supreme Court itself gestures in the direction we have taken. See Dominguez Benitez, 542 U.S. at 81 n.6, 124 S.Ct. 2333 ("The omission of a single Rule 11 warning without more is not colorably structural."). And at least two other circuits have rejected Gary's adoption of Patrone's proffered version of plain error review in cases such as this. United States v. Hicks, 958 F.3d 399, 401—02 (5th Cir. 2020) (rejecting the Fourth Circuit's structural error holding in Gary ); United States v. Coleman, 961 F.3d 1024, 1029—30 (8th Cir. 2020) (rejecting the argument that a plea suffering from a Rehaif error is structural error and applying a reasonable probability standard to the third prong of plain error review). Six other circuits proceed more or less as we have, albeit without expressly considering an argument that a Rehaif error is a structural error that automatically satisfies the third prong of plain error review. See United States v. Balde, 943 F.3d 73, 97—98 (2d Cir. 2019) (noting that in some cases a Rehaif error may have no effect on a defendant's conviction or decision to plead guilty); United States v. Sanabria-Robreno, 819 F. App'x 80, 82—83 (3d Cir. 2020) (applying a reasonable probability standard to the third prong of plain error review); United States v. Hobbs, 953 F.3d 853, 857—58 (6th Cir. 2020) (same); United States v. Williams, 946 F.3d 968, 975 (...