988 F.3d 55
1st Cir.2021Background
- Anthony Farmer, previously convicted of armed robbery (served >3 years), participated in a 2017 guns-for-cash scheme that was a robbery of a federal confidential informant; agents recovered firearms, ammunition, a ski mask, gloves, and ~71g of cocaine.
- Indicted on multiple counts including 18 U.S.C. § 922(g)(1) (felon-in-possession), 18 U.S.C. §§ 2, 924(c) (use/brandishing firearm in relation to a crime of violence with predicates under 18 U.S.C. §§ 111 and 2114), conspiracy, and drug distribution.
- Farmer pleaded guilty pursuant to a plea agreement under which the government agreed to recommend the bottom of the guidelines range; the district court’s Rule 11 colloquy did not advise of the scienter-of-status element later required by Rehaif.
- Sentenced to a total of 198 months (upward variance on the § 924(c) count plus high-end guidelines on other counts). After sentencing, Supreme Court decided Rehaif and Davis, prompting Farmer’s challenges to his conviction and plea acceptance and several sentencing claims.
- The First Circuit affirmed Farmer’s convictions and sentence, rejecting his Rehaif- and Davis-based attacks and his sentencing challenges.
Issues
| Issue | Farmer's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether omission of scienter-of-status from the indictment deprived the court of jurisdiction | Omission is jurisdictional; plea does not waive jurisdictional defects | Indictment defects are non-jurisdictional; Cotton and circuit precedent control | Non-jurisdictional; indictment omission did not divest court of jurisdiction; claim fails |
| Whether failure during plea colloquy to advise scienter-of-status (Rehaif) rendered plea involuntary (plain-error review) | Plea involuntary; Rehaif error requires reversal or relief | Even assuming error, Farmer cannot show reasonable probability he wouldn’t have pled given his prior multi-year sentence and sentencing risks | No plain error—Farmer failed to show prejudice (no reasonable probability he would have gone to trial) |
| Whether Davis invalidation of the residual clause undermines the § 924(c) plea because predicates might not qualify as crimes of violence | Predicates (esp. 2114(a) or aiding/abetting) could rely on the residual clause; plea acceptance defective | § 111(b) plainly qualifies under the elements clause; aiding/abetting and the court’s description made conviction under elements clause likely | No clear error; at least one predicate (§ 111(b)) satisfied the elements clause post-Davis; plea stands |
| Sentencing claims: (a) alleged breach of plea recommendation; (b) grouping/multiple-count adjustment; (c) substantive reasonableness/disparity; (d) failure to file Statement of Reasons | (a) Prosecutor failed to "affirmatively" recommend bottom-of-guidelines; (b) counts should have been grouped under §3D1.2(d); (c) upward variance and disparity with co-defendant were unreasonable and racially biased; (d) missing SOR prejudiced Farmer | (a) Prosecutor’s overall conduct met the agreement; (b) offenses not plainly same general type so grouping not required; (c) variance justified by Farmer’s violent history, additional drug offense, and record; (d) SOR is administrative and omission caused no prejudice | (a) No breach; (b) No plain error in grouping decision; (c) Sentence was reasonable and disparity explained by facts and history; (d) SOR omission harmless |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (government must prove defendant knew status that made him a prohibited person under § 922(g))
- United States v. Davis, 139 S. Ct. 2319 (2019) (struck down § 924(c) residual clause as unconstitutionally vague)
- United States v. Cotton, 535 U.S. 625 (2002) (indictment defects do not necessarily divest a court of jurisdiction)
- United States v. Burghardt, 939 F.3d 397 (1st Cir. 2019) (applying Rehaif in plain-error context)
- United States v. Guzmán-Merced, 984 F.3d 18 (1st Cir. 2020) (analyzing prejudice under Rehaif for plea withdrawal)
- United States v. Taylor, 848 F.3d 476 (1st Cir. 2017) (holding § 111(b) is a crime of violence under § 924(c) elements clause)
- United States v. Ubiles-Rosario, 867 F.3d 277 (1st Cir. 2017) (evaluating prosecutor compliance with plea recommendation)