Fourth Circuit Fires Away at Defective Felon-in-Possession Convictions

By Stuart Berman, Guest Contributor

In June 2019, the Supreme Court held in Rehaif v. United States, 139 S.Ct. 2191 (2019), that in federal prosecutions of illegal aliens for knowingly possessing a firearm, the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” As expected, Rehaif was quickly applied to other categories of “prohibited persons,” including one of the most commonly-prosecuted federal crimes, “felon in possession” – knowing possession of a firearm that had moved in interstate or foreign commerce by a person previously convicted of a crime punishable by more than one year of imprisonment, under 18 U.S.C. § 922(g)(1).

The trickier issue was whether Rehaif would be applied retroactively. In a post about the decision in July 2019, I noted the potential for thousands of motions to vacate convictions under 28 U.S.C. § 2255 and observed that “[w]hile the standard for retroactive application of Supreme Court decisions to collateral attacks on convictions is high under Teague v. Lane, 489 U.S. 288 (1989), it may not be unsurmountable.” Neither the Supreme Court nor the Fourth Circuit have applied Rehaif retroactively. But as recent Fourth Circuit case suggests, that day may be approaching.

In United States v. Gary, ___ F.3d ___, No. 18-4578 (4th Cir. March 25, 2020), the defendant was a convicted felon who during 2017 managed to get caught twice within six months possessing a firearm, once during a traffic stop and once in a motel room. Gary pled guilty to two counts under § 922(g)(1) and its companion provision, 18 U.S.C. § 924(a)(2) (establishing maximum sentence for person who knowingly violate certain subsections of § 922(g)). During the Rule 11 plea hearing, he admitted that (1) he had previously been convicted of a crime punishable by imprisonment for more than a year, (2) possessed a firearm, and (3) that the firearm had traveled in interstate or foreign commerce. But Gary was not told about and did not admit what Rehaif now requires – that “he knew he had the relevant status” as a convicted felon when he possessed the guns.

Despite Gary’s failure to raise the issue in the district court, the Fourth Circuit, in an opinion written by Chief Judge Gregory, reversed his conviction, finding that a Rehaif violation constitutes structural error, which per se violates a defendant’s substantial rights, and therefore satisfies the usually-unconquerable plain error standard. Under that standard, if a defendant shows (1) error that was (2) plain and (3) affected his substantial rights, an appellate court may exercise its discretion to correct an error that “seriously affects the fairness, integrity or public reputation of judicial proceedings.” While many other courts of appeals had declined to find plain error in Rehaif cases where there was evidence that the defendant had known he was a prohibited person, the Fourth Circuit focused on a different question – “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.”

In light of Rehaif, the government acknowledged that the district court had committed error that was plain, but denied that the error affected Gary’s substantial rights, citing ample evidence, including nearly two years of jail time, that proved Gary knew he was a convicted felon. The court of appeals had little difficulty rejecting that argument, on the grounds that the district court’s action fell into the category of “structural errors” which can be corrected regardless of their effect on the outcome and regardless of whether they were preserved. It offered three separate justifications: (1) “the error violated Gary’s right to make a fundamental choice regarding his own defense in violation of his Sixth Amendment autonomy interest”; (2) “deprivation of Gary’s autonomy interest under the Fifth Amendment due process clause has consequences that ‘are necessarily unquantifiable and indeterminate’”; and (3) “fundamental unfairness results when a defendant is convicted of a crime based on a constitutionally invalid guilty plea.” Having made those findings, the court readily exercised its discretion to vacate Gary’s convictions, stating that it “cannot imagine a circumstance where, faced with such constitutional infirmity and deprivation of rights as presented in this case, we would not exercise our discretion to recognize error and grant relief.”

For the moment, Gary only applies to a limited category of cases, where the district court conducted guilty plea proceedings prior to Rehaif and the defendant filed a timely appeal that was barred by the type of appeal waiver required by the plea agreements that most United States Attorney’s offices – including Maryland’s – utilize. Still, even though Gary was a direct appeal, and district courts in the Fourth Circuit to date have not applied Rehaif retroactively in collateral proceedings, the wind may be blowing in that direction. Under the well-known Teague v. Lane framework, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Rehaif involved a question of statutory interpretation, not a constitutional rule. But the Fourth Circuit’s emphasis on the Fifth and Sixth Amendment issues at stake when the defendant is not advised of all elements of the offense certainly raises the possibility that Rehaif errors might fall within the Teague v. Lane exceptions for new substantive rules or “watershed” procedural rules that implicate the fundamental fairness and accuracy of criminal proceedings.

When Rehaif was decided, I speculated whether federal courts still bailing out from collateral challenges to sentences imposed under invalidated provisions governing career offender and armed career criminal classifications might soon need “to order more buckets.” It’s still premature to place that bucket order, but there’s every reason to believe the courts may have years of bailing ahead of them.