United States v. Werle

• Decision Date: 03 June 2022
• Docket Number: 20-36005
• Citation: 35 F.4th 1195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Justin Curtis WERLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

35 F.4th 1195

UNITED STATES of America, Plaintiff-Appellee,

v.Justin Curtis WERLE, Defendant-Appellant.

No. 20-36005

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2021 Seattle, Washington

Filed June 3, 2022

Houston Goddard (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

Timothy J. Ohms (argued), Assistant United States Attorney; Joseph H. Harrington, Acting United States Attorney; United States Attorney's Office, Spokane, Washington; for Plaintiff-Appellee.

Before: A. WALLACE TASHIMA, MILAN D. SMITH, JR., and JACQUELINE H. NGUYEN, Circuit Judges.

M. SMITH, Circuit Judge:

In Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), the Supreme Court held that for firearm-possession prosecutions pursuant to 18 U.S.C. § 924(a)(2) and § 922(g), the Government must prove "that the defendant knew he possessed a firearm and also that he knew he had the relevant status [under § 922(g) ] when he possessed it." Id. at 2194. This means that for prosecutions under § 924(a)(2) and § 922(g)(1), which are colloquially referred to as felon-in-possession prosecutions, "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." Greer v. United States , ––– U.S. ––––, 141 S. Ct. 2090, 2095, 210 L.Ed.2d 121 (2021). By interpreting the statute this way, the Supreme Court upended the unanimous and well-settled law of at least ten circuit courts of appeals, which had held for decades that the Government need not prove that a defendant knew of his status. See Rehaif , 139 S. Ct. at 2210 n.6 (Alito, J., dissenting) (collecting cases); see also United States v. Miller , 105 F.3d 552, 555 (9th Cir. 1997) ("We agree with the decisions from other circuits that the § 924(a) knowledge requirement applies only to the possession element of § 922(g)(1), not ... to felon status.").

In response, Justin Werle moved to vacate his conviction for violating § 924(a)(2) and § 922(g)(1) because he pled guilty without being informed of the mens rea element the Supreme Court announced in Rehaif. Since Werle did not challenge the Government or the district court's omission of this element in the district court or on direct appeal, his claim is procedurally defaulted, meaning that the district court may not consider the merits of the claim unless Werle can overcome the default. See United States v. Pollard , 20 F.4th 1252, 1255–56 (9th Cir. 2021). One way to overcome a procedural default is by showing cause for not raising the error sooner and prejudice, which, in this context, means a reasonable probability that Werle would not have pled guilty had he been properly informed of the elements of the offense. See id.¹

The district court summarily denied Werle's motion without supplementing the record, holding an evidentiary hearing, or making factual findings. In doing so, the district court necessarily concluded that "the motion and the files and records of the case conclusively show that [Werle] is entitled to no relief." 28 U.S.C. § 2255(b). The district court reasoned that because Werle had been sentenced to one year and one day in prison five years before possessing the firearm at issue here, he could not establish prejudice. We hold that the district court's summary denial of Werle's motion was erroneous.

I

On December 26, 2013, the Spokane Police Department received a report that Justin Werle, who police knew to be a felon, was in possession of a weapon. When officers located him, they observed a brown wooden handle of a firearm sticking out of his jacket pocket. The officers removed the firearm and determined it was a Savage/Stevens 12 gauge short-barreled shotgun with an obliterated serial number.

Werle was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. § 924(a)(2) and § 922(g)(1), and for possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d). He pled guilty to both counts. Five years later, the Supreme Court decided Rehaif , in which it held that "in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), 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. Thus, for prosecutions pursuant to § 922(g)(1), the Government must prove that the defendant knew that he had been convicted of a crime "punishable by imprisonment for a term exceeding one year," § 922(g)(1), "when he possessed" the firearm, Rehaif , 139 S. Ct. at 2194. See also Greer , 141 S. Ct. at 2095.

Because Rehaif had not yet been decided and we had held that the Government need not prove the defendant's knowledge of his status, the Government did not include this element in Werle's indictment, and neither Werle's attorney nor the district court informed him of it. After the Supreme Court decided Rehaif , Werle filed a motion pursuant to 28 U.S.C. § 2255 arguing, among other things, that his plea was not knowing and voluntary because he was not informed of all of the elements of the offense before pleading guilty. See Bousley v. United States , 523 U.S. 614, 618–19, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

The Government argued that the district court could not reach the merits of Werle's claim because he had not raised the Rehaif error at trial or on direct appeal. Werle argued that the court could reach the merits of the claim because he could show cause and prejudice necessary to overcome the procedural default. Because he had not served more than one year in prison, Werle contended, it was "at least plausible" that he did not recall that his sentences were longer than one year, and therefore there was a reasonable probability that he would have proceeded to trial on the felon-in-possession count.

Without holding an evidentiary hearing, the district court denied Werle's motion in a two-page order. Applying plain-error analysis, the district court held that Werle was not entitled to relief because five years before he possessed the firearm at issue here a state court sentenced Werle to one year and one day in prison, and Werle signed a document entitled "Felony Judgment and Sentence" that listed his sentence. Therefore, the district court held, "a jury would conclude that, Mr. Werle knew, or should have known, he had been convicted of a crime punishable by more than a year." The district court also held that the fact that Werle served only seven months and two days of that sentence was "inapposite" because Rehaif does not require that a defendant actually serve more than one year in prison. The district court issued a certificate of appealability, and Werle timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253(a). We review the district court's denial of Werle's § 2255 motion de novo and its denial of an evidentiary hearing for abuse of discretion. United States v. Chacon-Palomares , 208 F.3d 1157, 1158 (9th Cir. 2000).

II

On appeal, the parties agree that the district court erred by applying plain-error analysis, and they are correct. We apply plain-error review when a defendant urges us on direct appeal to correct an error the defendant did not raise in the district court. See Fed. R. Crim. P. 52(b) ; United States v. Frady , 456 U.S. 152, 162–64, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). But when a defendant raises an error for the first time on collateral review, the defendant must generally show cause for not raising the error sooner and actual prejudice resulting from the error before a court can consider the claim on the merits. Id. at 167–68, 102 S.Ct. 1584. Therefore, the district court applied the wrong legal standard. See id. at 166, 102 S.Ct. 1584.

The Government argues that we may affirm the district court's judgment on other grounds because Werle cannot establish cause sufficient to overcome his procedural default, and even if he could, he cannot show that he was prejudiced.

A

Werle argues that he has demonstrated cause because any argument that the Government was required to prove he knew he had been convicted of a crime punishable by more than one year in prison at the time he possessed the firearm "would have been futile in 2014" because "every court to address [this] argument had rejected it." The Government responds that the Supreme Court has "flatly rejected ... futility of a claim, by itself, as sufficient cause to excuse a procedural default." We agree with Werle.

The Supreme Court first addressed what constitutes cause to overcome a procedural default in Engle v. Isaac , 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In Isaac , the Court held that "the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial." Id. at 130, 102 S.Ct. 1558. The Court reasoned that a state court that has previously rejected an argument might change its mind, and that recognizing futility as cause might encourage litigants to deliberately "bypass the state courts" whenever they believe the federal courts will be more amenable to their claims. Id. Allowing them to do so would deprive the states of any "chance to mend their own fences and avoid federal intrusion." Id. at 129, 102 S.Ct. 1558. Therefore, the Court held that "perceived futility alone cannot constitute cause." Id. at 130 n.36, 102 S.Ct. 1558.

Two years later, the Court backed away from this categorical language. It held in Reed v. Ross , 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), that "the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client's interests." Id. at 14, 104 S.Ct. 2901. A defendant's "failure to raise a claim for which there was no reasonable basis in existing law" is one such circumstance because it "does not...