United States v. Patrone
985 F.3d 81
| 1st Cir. | 2021Background
- Patrone, an Italian and Dominican citizen, entered the U.S. on a tourist visa; his visa later expired and he had a pending application to remain when arrested.
- DEA investigation (2016–2017) produced voluminous evidence of distribution of fentanyl and other drugs; a loaded 10 mm firearm was seized from his bed at arrest.
- Indictment charged conspiracy to distribute drugs (21 U.S.C. §§ 846, 841) and possession of a firearm as an alien unlawfully present (18 U.S.C. § 922(g)(5)(A)); the indictment did not allege knowledge of unlawful status.
- Patrone pled guilty to both counts in September 2018 after a Rule 11 colloquy that did not inform him the government must prove he knew his presence was unlawful (the Rehaif scienter-of-status requirement).
- He was sentenced to concurrent terms (drug: 144 months; firearm: 120 months). The Supreme Court decided Rehaif a month after sentencing.
- On appeal Patrone challenged (1) the unpreserved Rule 11/Rehaif error (seeking vacatur of the § 922(g)(5)(A) conviction) and (2) the two-level "criminal livelihood" Guidelines enhancement under U.S.S.G. § 2D1.1(b)(16)(E).
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Patrone) | Held |
|---|---|---|---|
| Whether the district court's failure during the Rule 11 colloquy to advise of the Rehaif scienter-of-status element requires vacatur of the § 922(g)(5)(A) plea (plain-error review) | The omission is clear error under Rehaif but did not prejudice Patrone because overwhelming evidence on the drug count, concurrent sentencing, and desire to preserve acceptance-of-responsibility made it unlikely he would decline the plea | He would not have pleaded guilty to the firearm count had he known the government had to prove he knew his presence was unlawful; the indictment/colloquy omitted an element required by Rehaif | Applying plain-error review (reasonable-probability standard from Burghardt), the court found no reasonable probability Patrone would have proceeded to trial on the firearm count given (a) overwhelming drug-case evidence, (b) concurrent sentencing driven by the drug count, and (c) sentencing benefits tied to pleading; conviction affirmed |
| Whether the two-level "criminal livelihood" enhancement under U.S.S.G. § 2D1.1(b)(16)(E) was improperly applied | The enhancement properly applies: Patrone admitted conduct spanning over a year and application notes permit "substantial period" findings shorter than a literal 12 months where income/primary-occupation criteria are met | The period of activity was too short to qualify as a "livelihood"; enhancement inappropriate | The court upheld the enhancement: the charged conduct covered over a year, the Guidelines/notes do not require continuous 12 months, and circuit precedent accepts periods shorter than 12 months as "substantial" |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (Supreme Court holding § 922(g) requires proof that defendant knew he belonged to a prohibited class)
- United States v. Burghardt, 939 F.3d 397 (1st Cir. 2019) (applying reasonable-probability plain-error standard to unpreserved Rehaif Rule 11 errors)
- United States v. Dominguez Benitez, 542 U.S. 74 (2004) (plain-error standard for Rule 11 omissions and prejudice assessed by reasonable probability of different outcome)
- United States v. Correa-Osorio, 784 F.3d 11 (1st Cir. 2015) (plain-error framework articulated)
- United States v. Gary, 954 F.3d 194 (4th Cir. 2020) (holding Rehaif Rule 11 omission structural — discussed and distinguished)
- United States v. Hicks, 958 F.3d 399 (5th Cir. 2020) (rejected Gary's structural-error approach; applied prejudice inquiry)
- United States v. Deppe, 509 F.3d 54 (1st Cir. 2007) (discussing acceptance-of-responsibility when pleading to fewer than all counts)
- United States v. McLean, 409 F.3d 492 (1st Cir. 2005) (possession of a firearm in connection with drug trafficking makes defendant ineligible for the safety-valve)
- United States v. Pristell, 941 F.3d 44 (2d Cir. 2019) (application-note interpretation: periods shorter than 12 months may be a "substantial period of time")