MARLON GUARDADO, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee.
No. 21-1713
United States Court of Appeals For the First Circuit
August 7, 2023
Before Barron, Chief Judge, Selya and Howard, Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for respondent.
HOWARD, Circuit Judge. Marlon Guardado appeals from an order of the district court denying his motion to vacate, set aside, or correct his sentence, filed pursuant to
I.
We briefly recite the factual and procedural background of this appeal. As further detailed below, Guardado was convicted of numerous state offenses in Massachusetts and New York between 2003 and 2010. In 2012, he was indicted on -- and eventually pleaded guilty to -- seven federal felon in possession of ammunition and/or firearms charges.
In 2019, the Supreme Court held that, to sustain a conviction under
A person is a convicted felon for purposes of
As correctly summarized by the district court, Guardado had never “served or [been] sentenced to serve more than one year in prison for a single state offense before the underlying federal offense[s] (he was sentenced to 2.5 years for the probation violation one month after the charged firearms sales in this case concluded in February 2011).” Id. at 58-59. The district court nevertheless denied Guardado‘s
II.
We review the district court‘s legal conclusions denying a
Guardado claims error on the basis of the district court‘s failure during his plea colloquy to advise him of
To show actual prejudice in cases that result in a plea rather than a trial, a petitioner “must show that there is a reasonable probability that but for [the] errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Establishing prejudice on plain error review on direct appeal is described in similar terms as establishing actual prejudice for purposes of collateral review; nevertheless, the latter showing is more demanding. See Ramirez-Burgos v. United States, 313 F.3d 23, 32 & n.12 (1st Cir. 2002); United States v. Frady, 456 U.S. 152, 166 (1982).
Following Rehaif, we have issued several decisions involving direct appeals of defendants who alleged plain error because they were not advised of the Rehaif requirement before pleading guilty. See, e.g., United States v. Guzman-Merced, 984 F.3d 18, 19 (1st Cir. 2020); United States v. Burghardt, 939 F.3d 397, 400 (1st Cir. 2019). Although Guardado makes his claim on collateral review, those cases are nevertheless instructive. In such cases, we have found four basic principles important as to whether a defendant had shown actual prejudice: (1) the level of proof that a defendant knew that he had previously been convicted of offenses punishable by more than a year in prison, such as whether he was sentenced to over a year‘s imprisonment for any of the relevant previous offenses or whether he would have been informed of the maximum possible sentence for such crimes; (2) whether he would have lost any benefits in foregoing his guilty plea; (3) the time between the previous offenses rendering him a convicted felon and the
III.
Turning to Guardado‘s case, there is no dispute here that he never served a sentence of imprisonment of over a year (nor was he ever sentenced to serve such a term of imprisonment) before the underlying federal offenses. The government also argues, and Guardado does not dispute, that he would have lost the three-level sentencing reduction for acceptance of responsibility by proceeding to trial. Guardado nevertheless advances three principal arguments on appeal: (1) that he was not informed that his state convictions carried possible sentences of greater than a year; (2) that aspects of the Massachusetts court and prison systems further discussed below meant that he could not have understood that he was a convicted felon; and (3) that his history of mental illness and limited educational history curtailed his ability to understand the implications of his state convictions. We address each contention in turn.
A.
We start with whether Guardado was informed of the maximum possible sentence attached to at least some of the relevant Massachusetts crimes of which he was convicted. Under
The government did not, however, present evidence of that fact, nor specify the specific crimes to which he pleaded guilty. Nevertheless, Guardado did not contest in any manner the government‘s assertion. The district court thus concluded that Guardado had pleaded guilty to at least “some of his [] prior Massachusetts [] convictions, and therefore on several occasions [] would have been informed by a judge in state court that the offense he
On appeal, the government contends that, although we may rely on that uncontested assertion, we may also take judicial notice of state court records establishing that fact (that is, that Guardado pleaded guilty to several of the relevant Massachusetts crimes).
As an initial matter, we agree that, even without taking judicial notice of such records, we could rely on the district court‘s finding that on several occasions between 2004 and 2010 -- the earliest and latest dates of the relevant Massachusetts guilty pleas -- Guardado was informed that an offense to which he was pleading guilty carried a possible sentence of more than a year‘s imprisonment. Specifically, Guardado did not in any manner contest that assertion by the government in the
[T]here may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms. . . . But if a defendant does not make such an argument or representation on appeal, [we] will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error.
Greer v. United States, 141 S. Ct. 2090, 2097 (2021).
As to the state court records proving that fact, Guardado contends in his reply brief that the government has waived its right to introduce them because in the proceedings below it “addressed solely what was in the presentence report,” which did not distinguish as to whether Guardado‘s previous convictions were the result of guilty pleas or jury verdicts. But we have generally permitted the government to supplement the record on appeal with state court records susceptible to judicial notice, such as where the government has sought to introduce on appeal documents underlying alleged predicate convictions that were missing from the district court record to support sentencing enhancements under the Armed Career Criminal Act. See, e.g., United States v. Farrell, 672 F.3d 27, 30-31 (1st Cir. 2012) (noting that although the defendant did not contest consideration of the documents, he also “conced[ed] at oral argument that had he objected below, the evidence would likely have been submitted to the district court“); United States v. Huntsberry, 956 F.3d 270, 284 (5th Cir. 2020) (noting in the context of a Rehaif error asserted on direct appeal that it was appropriate to “judicially notice the facts of Huntsberry‘s prior felony conviction“).
Accordingly, we take judicial notice of the state court docket entries submitted by the government. Those records show that Guardado pleaded guilty to four of the relevant offenses in Massachusetts state court: (1) possession of a Class A substance with intent to distribute on June 2, 2005; (2) A&B on December 5, 2008; (3) ABDW on December 22, 2008; and (4) A&B on October 27, 2009. Because Guardado has offered no reason to believe that the Massachusetts state judges did not comply with
B.
Guardado contends that, in spite of such evidence, we should nevertheless find that he has met his burden of proof because of certain features of the Massachusetts criminal justice system.
Specifically, in all of his relevant Massachusetts state cases, Guardado was prosecuted in Massachusetts district courts. Massachusetts law defines a felony as a crime that is punishable by death or imprisonment in state prison, by contrast to a house of corrections,
As a preliminary matter, Guardado has not explained which if any of his crimes were misdemeanors under state law, and we have not canvassed all of them. Nevertheless, it appears to us that at least A&B is, because the maximum sentence for it is 2.5 years in a house of corrections.
But, more generally, Guardado‘s argument misses the point. It does not matter whether it was explained to Guardado that his crimes were felonies or misdemeanors
For those reasons, we reject Guardado‘s argument that the fact that he was prosecuted for his Massachusetts convictions in Massachusetts district court establishes a reasonable probability that he would have proceeded to trial had he been advised of
C.
Guardado further contends that his history of mental illness affected his ability to understand the maximum sentences attached to his relevant convictions, and that he has proved a reasonable probability that he would not have pleaded guilty but for the Rehaif error on that basis.
The district court correctly characterized Guardado‘s history of mental illness as “extensive and well-documented.” Guardado, 552 F. Supp. 3d at 59. It is a staggering history. It appears that he first began mental health treatment shortly after he was sexually abused at the age of 9; since then, he has been hospitalized in state hospitals a total of eight times and he reported that he has had a total of 11 suicide attempts. He has been diagnosed with Bipolar Disorder with Psychotic Features and Antisocial Personality Disorder, among other conditions.
In his briefs, Guardado argues that his mental illness makes this case similar to that of Guzman-Merced. 984 F.3d at 19. We agree that Guardado‘s history is serious and deserves attention. But, nevertheless, that case was different from this one in several ways that are significant. Here,
That is not to say, of course, that a history of mental illness can never make a difference in a case like this. And, here, it may be reasonable to discount the strength of some of the government‘s evidence in light of Guardado‘s mental illness. At oral argument, Guardado‘s counsel made such an argument, noting that Guardado had been hospitalized on December 1, 2008, following several “suicide gestures.” He was under “close observation” for approximately 17 days thereafter, and on discharge, was diagnosed with Adjustment Disorder with Depressed Mood and Polysubstance Abuse. During that time, on December 5 and December 22, 2008, he pleaded guilty to A&B and ABDW. We assume, therefore, for present purposes, that a reasonable juror might reasonably doubt on that
basis that at such hearings he was able to understand that he was pleading guilty to offenses punishable by more than a year‘s imprisonment.6 And we assume that that may be true notwithstanding that a judge would have explained the possible consequences to him in accordance with
But, even so, the Massachusetts court records here show that he also pleaded guilty to
seven years).7 And on October 27, 2009, approximately 6
On that basis, among others, we conclude that Guardado has failed to carry his burden of establishing that it is reasonably probable that he would not have pleaded guilty but for the Rehaif error. That conclusion is based on a combination of
four factors. First, Guardado provides no reason to cast doubt on the fact that the Massachusetts judges would have explained to him that he was pleading guilty to crimes for which he could be sentenced to 2.5 years in a house of corrections on at least two occasions -- occasions for which the record reveals no reason that a reasonable juror would have doubted his ability to understand that explanation. Second, one of those occasions was only approximately 6 months to 1.5 years before he committed the underlying offenses. Third, the sheer number of crimes punishable by more than a year‘s imprisonment of which he was convicted discredits the notion that he would not have known that he was a convicted felon at the relevant time. And, finally, he would have given up a 3-level reduction under the Guidelines for his acceptance of responsibility by not pleading guilty. The combination of those factors convince us that, here, it is not reasonably probable that Guardado would have pleaded guilty if he had been informed of
IV.
For the foregoing reasons, we affirm the district court‘s denial of Guardado‘s