UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTWAN HEYWARD, Defendant - Appellant.
No. 18-4819
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 3, 2022
PUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:16-cr-00940-DCN-1)
Argued: May 4, 2022 Decided: August 3, 2022
Before KING, AGEE, and HEYTENS, Circuit Judges.
Vacated and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge King joined. Judge Agee wrote a dissenting opinion.
ARGUED: Emily Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Kathleen Michelle Stoughton, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United
TOBY HEYTENS, Circuit Judge:
Antwan Heyward pleaded guilty to “knowingly” possessing a firearm after being convicted of “a crime punishable by imprisonment for a term exceeding one year.”
I.
In 2014, Heyward was arrested after he fired two shots from the front porch of the house where he resided, killing a person in a car parked outside. Heyward was initially charged in South Carolina state court with murder and possession of a weapon during the commission of a crime. Before that case went to trial, however, federal authorities charged Heyward with various firearms and narcotics offenses and the state charges were dropped.
In 2017, Heyward pleaded guilty in federal court to one count of violating
Heyward appealed, initially challenging only his sentence.1 After briefing was complete, the Supreme Court decided Rehaif, which abrogated this Court‘s holding in Langley. See Greer, 141 S. Ct. at 2095 (“after Rehaif, 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“). The parties filed supplemental briefs addressing how Rehaif impacts this case.
II.
Two points of common ground frame our inquiry. First, everyone agrees that, given Rehaif, the district court erred in failing to advise Heyward that he could not be guilty unless he knew—at the time
Although one could question whether it makes sense to treat defendants in radically different ways based on whether their lawyers made objections that would have been flatly inconsistent with then-controlling authority,2 the Supreme Court has repeatedly directed that we do just that. See, e.g., Greer, 141 S. Ct. at 2099; United States v. Cotton, 535 U.S. 625, 631 (2002); Johnson v. United States, 520 U.S. 461, 465-67 (1997). So, because the Rehaif error in this case was not “brought to the [district court‘s] attention,” we review only for “plain error.”
A.
Beyond conceding error, the government also concedes the plainness point. To those unfamiliar with the twists and turns of plain error doctrine, that may seem odd. After all, at the time of the plea colloquy, this Court had specifically held that the government need not prove that defendants like Heyward knew of their felony status when they possessed the firearm in question. See Langley, 62 F.3d at 604-07. For that reason, one might wonder how the district court committed “clear” or “obvious” error in accepting Heyward‘s plea. United States v. Olano, 507 U.S. 725, 734 (1993) (quotation marks omitted). But, here too, well-settled Supreme Court authority provides the answer, holding that—regardless of “whether a legal question was settled or unsettled at the time” of the trial court proceedings—“it is enough that an error be ‘plain’ at the time of appellate consideration.” Henderson v. United States, 568 U.S. 266, 279 (2013) (quotation marks omitted). And because it is now clear that the government must prove that a defendant “knew he was a felon when he possessed the firearm,” Greer, 141 S. Ct. at 2095 (emphasis omitted), we conclude the district court plainly erred in not advising Heyward of that requirement before accepting his guilty plea.
B.
That brings us to the next requirement: whether the error affected Heyward‘s “substantial rights.” Greer, 141 S. Ct. at 2096. Heyward bears the burden of proof on this requirement and “faces an uphill climb in trying to satisfy” it. Id. at 2097. The reason is straightforward: “If a person is a felon, he ordinarily knows he is a felon” because “[f]elony status is simply not the kind of thing that one forgets.” Id. (quotation marks omitted).
The nature of the substantial rights inquiry also differs depending on the context in which the error occurred. To be eligible for relief based on a ”Rehaif error in the jury instructions,” a defendant must demonstrate “a reasonable probability that a jury would have acquitted him.” Greer, 141 S. Ct. at 2098. But because the decision whether to plead guilty always belongs to the defendant, see, e.g., Florida v. Nixon, 543 U.S. 175, 187 (2004), to obtain relief for a ”Rehaif error during [a] plea colloquy,” a defendant must demonstrate “a reasonable probability that“—had he been correctly advised—“he would have gone to trial rather than plead guilty,” Greer, 141 S. Ct. at 2098, without taking on the added burden of establishing that he probably would have been acquitted at trial.
Heyward‘s burden to show only a reasonable probability that he would have gone to trial distinguishes his situation from our post-Greer decisions denying relief to defendants whose Rehaif claims arose from jury instructions. In United States v. Caldwell, 7 F.4th 191 (4th Cir. 2021), this Court concluded that a defendant who had been found guilty by a jury in a felon-in-possession case could not show that a Rehaif error had affected his substantial rights because the fact that the defendant “had, on several occasions, served sentences longer than a year—including two stints of more than five years each in federal prison—ma[de] it virtually impossible to believe he did not know he had been convicted of crimes punishable by such sentences.” Id. at 213. And our decision in United States v. Moody, 2 F.4th 180 (4th Cir. 2021), is even further afield because that case did not address the substantial rights prong at all. Instead, Moody‘s Rehaif claim failed because he asserted a classic (and classically flawed) mistake-of-law defense, insisting that the government should have been required to prove not only that he understood the nature of his previous conviction but also that he knew his conviction had made it illegal for him to possess a firearm. Id. at 197-98. Here, in contrast, the question is not what a jury should have been told or what it could have concluded based on the evidence. Instead, it is whether—absent the Rehaif error—there is a reasonable probability that Heyward would have made a different decision about whether to plead guilty. See Greer, 141 S. Ct. at 2097 (specifically drawing this distinction).
Of course, common sense dictates that “[a] defendant considering whether to plead guilty would recognize” jurors’ tendency
We conclude this is the rare case where a defendant has satisfied his burden of showing that, had the district court “correctly advised him of the mens rea element of the offense, there is a ‘reasonable probability’ that he would not have pled guilty.” Greer, 141 S. Ct. at 2097. Examining “the entire record,” id. at 2098, we see that Heyward repeatedly insisted that he had not known of the relevant fact—that is, his status as a felon—that made it unlawful for him to possess a firearm.3
The first occasion was during a hearing on the ultimately dismissed state charges, a transcript of which was made part of the district court record during sentencing. At that hearing, the state prosecutor asked Heyward if he was “legally allowed to have a gun.” Sealed JA (SJA) 266.4 Heyward
The second instance occurred during the change of plea hearing before the district court. After reciting the factual basis for Heyward‘s plea, the government stated: “I‘ll tell the Court also that at the time this incident occurred, as I mentioned earlier, he was a convicted felon.” JA 25. The district court asked Heyward if he “agree[d] with the prosecutor‘s summary of the—that you were [a] convicted felon on July 18th and 19th, 2014, and at that time you had this .357 magnum in your possession?” JA 25-26. Heyward
did not immediately respond, stating “I would like to refer that question to my attorney.” JA 26. “After that consultation,” U.S. Supp. Br. 6, defense counsel directed Heyward to answer the question, and Heyward said, “Yes.” JA 26.
A third example appears in a letter Heyward wrote the district court in connection with his sentencing. In that letter, Heyward stated: “I didn[‘]t have any felon[ies] in the state only 3 [misdemeanors]. I did get 6 months probation when I was 21 years old in 2006 for unlawful carry of a gun that was register[ed] to me in my name with simple poss[ession] of [cocaine] which made me a prohibited person to have a gun but other than that my record is clean.” SJA 435 (emphasis added).
Taken together, these examples paint a consistent picture. In response to leading questions by a prosecutor and advice from his lawyer, Heyward acknowledged that he had not—in reality—been allowed to possess a firearm at the time of the underlying incident. But Heyward persistently denied having known at the time he possessed the firearm that his previous conviction had the characteristics necessary to trigger the felon-in-possession statute, repeatedly noting that he had been convicted of a misdemeanor for which he had received a six-month sentence. SJA 266-67, 435.
A comparison to the companion case the Supreme Court decided along with Greer clinches the point. Like Heyward, Michael Gary pleaded guilty to a felon-in-possession offense without being advised of the knowledge requirement later announced in Rehaif. See 141 S. Ct. at 2096. Like Heyward, Gary had not “disputed the fact of [his] prior conviction[]” and had “admitted that he was a felon when he pled guilty.” Id. at 2098. But the Supreme Court did not treat those two facts as dispositive. Instead, the Court also specifically deemed it “[i]mportant[]” that—even “on appeal“—Gary had not “argued or made a representation that” he would have presented evidence that he had “not in fact know[n]” he was a “felon[] when [he] possessed [the] firearm[.]” Id. Heyward, in contrast, goes even further by maintaining that the existing record suggests he had not known of the facts that made it unlawful for him to possess a firearm at the relevant time.
The government insists that the exchanges recounted above demonstrate that Heyward had the requisite knowledge. But none of the exchanges squarely confronts
The nature of this knowledge requirement explains why the government‘s reliance on Heyward‘s testimony in state court about a “gun act” form fails. SJA 267. The question under Rehaif is whether Heyward knew “he belonged to the relevant category of persons,” 139 S. Ct. at 2200, not whether he knew the “legal consequences” of his conviction, Moody, 2 F.4th at 198. (And even if Heyward‘s understanding of the legal consequences of his conviction mattered, Heyward testified that the form in question said he “cannot possess ammunition,” but ”didn‘t say [he] can‘t own a firearm.” SJA 267 (emphasis added).)
Another misstep involves timing—specifically, when Heyward must have understood the nature of his previous conviction. The government focuses heavily on an exchange during the state court hearing where Heyward responded “I guess so” after the prosecutor asserted that his previous drug conviction “carrie[d] over a year” and asked, “so federally you are not allowed to possess a gun; correct?” SJA 267. But the relevant inquiry
is not what Heyward knew by the time of the hearing—it is what he knew at the time of the offense. See Greer, 141 S. Ct. at 2095 (defendant must have known ”he was a felon when he possessed the firearm“). Neither the government‘s question nor Heyward‘s answer focuses on that last issue, a fact that seems especially notable given that
The same problem plagues the government‘s reliance on Heyward‘s statements during his change-of-plea hearing and in the letter he wrote the district court (again, all of which predated Rehaif). Although Heyward ultimately admitted both times that he had a qualifying prior conviction, neither statement addressed whether Heyward had the relevant knowledge at the time of the underlying incident. And in his briefing before us, Heyward asserts that he wrote the letter after “repeatedly” being “told he had a qualifying felony conviction for purposes of
The circumstances of Heyward‘s prior convictions lend further strength to his argument that he did not know at the critical time that the crimes were “‘punishable by imprisonment for a term exceeding one year.‘” Rehaif, 139 S. Ct. at 2198 (quoting
All of this tends to show that Heyward would have been able to mount a potentially credible argument at trial that he lacked the necessary knowledge to be convicted. And there is also evidence that Heyward‘s contemporaneous preference would have been to hold the government to its burden. Heyward hesitated during the plea colloquy when asked about the critical element, and shortly thereafter wrote a letter to the district court further attempting to clarify exactly what he knew and when. These events, combined with Heyward‘s consistent denial that he knew of his status in 2014, establish there is at least “a ‘reasonable probability’ that he would not have pled guilty” had the district court “correctly advised him of the mens rea element of the offense.” Greer, 141 S. Ct. at 2097.6
C.
Heyward also has met his burden to establish the final requirement—that “the error had a serious effect on the
Because of the Rehaif error, however, Heyward offered the relevant stipulation after having been misinformed about a material aspect of the offense to which he was pleading guilty. That much, of course, is true of all Rehaif errors in plea colloquies. We emphasize that such errors are “not structural” and that the omission of a single element from a plea colloquy does not “necessarily render” the proceedings fundamentally unfair. Greer, 141 S. Ct. at 2100 (emphasis omitted). Instead, the final plain error requirement “is meant to be applied on a case-specific and fact-intensive basis.” Puckett, 556 U.S. at 142.
That is what we do here. Based on all the facts and circumstances of this case, we conclude it is appropriate to exercise our discretion to correct this particular Rehaif error. That error resulted in Heyward unknowingly agreeing that the government need not advance proof of the knowledge-of-status element, notwithstanding his persistent and contemporaneous assertions that he had not known of his legal status at the relevant time. Because these circumstances raise obvious—and troubling—questions about whether Heyward would have so agreed had he been fully and correctly informed, allowing the current plea to stand without further inquiry would seriously affect the fairness, integrity, and public reputation of judicial proceedings.
*
*
*
“Satisfying all four prongs of the plain-error test is difficult,” and the ultimate decision to grant relief is always discretionary. Greer, 141 S. Ct. at 2096-97 (quotation marks omitted). But this case is far from ordinary and the evidence in this record is sufficient to warrant relief even under plain error review. Accordingly, we vacate Heyward‘s conviction and remand to the district court for further proceedings consistent with this opinion.
VACATED AND REMANDED
AGEE, Circuit Judge, dissenting:
The majority correctly identifies the principles governing Heyward‘s claim of plain error based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Heyward has the burden to prove that “there is a reasonable probability that,” absent the district court‘s plain error, “he would have gone to trial rather than plead guilty.” Greer v. United States, 141 S. Ct. 2090, 2098 (2021). To meet that burden, he must proffer evidence showing that he did not know his prior South Carolina conviction was ”punishable” by the requisite term of imprisonment. Rehaif, 139 S. Ct. at 2198 (quoting
Under the record in this case, Heyward has failed to meet his burden and is not entitled to plain-error relief. After conferring with counsel during his Rule 11 colloquy, he admitted he was “[a] convicted felon” for purposes of
But the majority goes further. This Court already permitted the Government to supplement the record on appeal with additional evidence relevant to Heyward‘s Rehaif claim—evidence which only confirms that Heyward cannot meet his burden. Undeterred, the majority vacates this ruling in a footnote and categorically refuses to consider any of the Government‘s supplemental record evidence. Majority Op. 8 n.3 (citation omitted). That ad hoc decision sets us apart from all other circuits to have addressed this issue, which permit the Government to supplement the record on appeal when presented with a Rehaif claim on plain-error review.
I therefore respectfully dissent. This is not the “rare” case where Rehaif relief is established on plain-error review. Est. of Larkins ex rel. Larkins v. Farrell Lines, Inc., 806 F.2d 510, 514 (4th Cir. 1986).
I.
A.
On July 18, 2014, Heyward spent the night, in his words, “getting high” on marijuana and cocaine at a friend‘s house. Sealed J.A. 248. During the early morning hours that followed on July 19, Heyward fired several shots from a .357 revolver toward a vehicle that had recently parked in the residence‘s driveway, killing the driver, Collette Warren. Heyward was charged with Warren‘s murder in South Carolina state court. Those charges were later dropped and Federal authorities picked up where the State left off.
A federal grand jury indicted Heyward for two violations of federal law: possession with the intent to distribute cocaine, see
Initially, Heyward pleaded not guilty to the charges in the federal indictment and was appointed counsel. He then changed his plea to guilty on the
THE COURT: Mr. Heyward, do you agree with the prosecutor‘s summary of the—that you were [a] convicted felon on July 18th and 19th, 2014, and at that time you had this .357 magnum in your possession?
[HEYWARD]: I would like to refer that question to my attorney.
[COUNSEL]: Answer the questions.
[HEYWARD]: Yes.
J.A. 25-26 (emphases added). The district court accordingly accepted Heyward‘s plea.
Just as Heyward admitted during his plea hearing, the Presentence Report (“PSR“) stated that “[a] review of Heyward‘s criminal history confirmed his status as a convicted felon.” Sealed J.A. 418. Heyward filed only one objection to the PSR,2 arguing there was an erroneous cross-reference to the Guideline for second-degree murder in calculating his total offense level. See generally U.S.S.G. § 2K2.1(c)(1)(B) (2016) (directing courts to cross-reference “the most analogous offense guideline from Chapter Two, Part A, Subpart 1 (Homicide)” if death results from a firearm possession offense). Instead, Heyward posited that voluntary manslaughter was the more appropriate Guideline cross-reference. This cross-reference dispute was the parties’ sole focus at sentencing.
The district court held a hearing on Heyward‘s objection, but the parties produced no live witnesses. Instead, they agreed to submit only a transcript of a 2014 state court hearing after the State first charged Heyward with Warren‘s murder (“the Duncan hearing”3) and the state court judge‘s attendant written ruling.
Much of the Duncan hearing transcript is irrelevant to Heyward‘s instant Rehaif claim, except for an exchange between the Assistant Solicitor and Heyward about how he came into possession of the firearm he used to shoot Warren:
[STATE]: . . . So how did you get this gun?
[HEYWARD]: It was a gift from Mr. Foreman.
. . .
[STATE]: Are you legally allowed to have a gun? Have you been convicted of anything—
[HEYWARD]: I already—I have owned a gun before in my name, ma‘am, yes.
[STATE]: Okay.
[HEYWARD]: And I am not a felon right now, so I can get one.
[STATE]: Isn‘t it true that you were convicted of possession of cocaine and unlawful carrying of a pistol in the past? [HEYWARD]: Yeah, but I pleaded to a misdemeanor and got six month [sic] probation.
[STATE]: But you have been convicted of possession of cocaine which is—carries over a year, so federally you are not allowed to possess a gun; correct?
[HEYWARD]: I guess so. It says on my gun act I pleaded to a misdemeanor and I cannot possess ammunition. But it didn‘t say I can‘t own a firearm.
Sealed J.A. 266–67 (emphases added).
The district court eventually overruled Heyward‘s cross-reference objection. After that decision, but before sentencing, Heyward sent the district court a letter “asking for mercy,” Sealed J.A. 435, and purporting to clarify some factual matters that came up at the hearing on his objection to the court‘s decision to use a “cross reference to 2nd degree murder,” Sealed J.A. 432. Relevant here, Heyward addressed his prior conviction and ability to possess a firearm:
Your Honor I plead [sic] guilty to the charge of
922G which is 0-10 years[.] I didn[‘]t have any feloneys [sic] in the state only 3 [misdemeanors.] I did get 6 months[‘] probation when I was 21 years old in 2006 for unlawful carry of a gun that was register[e]d to me in my name with simple poss[ession] of [cocaine] which made me a prohibited person to have a gun but other than that my [r]ecord is clean.
Id. (emphasis added).
Ultimately, the district court sentenced him to 120 months’ imprisonment, the Guidelines range for his offense. Heyward timely noted an appeal.
B.
On appeal, Heyward initially argued only that the district court erroneously cross-referenced the Guideline for second-degree murder in calculating his total offense level. But while his appeal was pending, the Supreme Court decided Rehaif. A panel of this Court granted his motion for leave to file supplemental briefing so he could assert a Rehaif claim, but his case was held in abeyance for nearly two years while we considered other potentially dispositive post-Rehaif appeals.
Before filing a supplemental response brief, the Government moved to supplement the record with four items of evidence totaling sixteen pages in a supplemental joint appendix. Typically, the record on appeal is limited to that which the parties developed before the district court. See
Heyward opposed the Government‘s motion. He asserted that his Rehaif claim was “not a pure question of law but rather a question of fact” that would require weighing evidence and testimony for the first time, which “should occur in a trial court, not in a court of review.” ECF No. 51 at 6. And because ”
This Court granted the motion to supplement the record by order dated January 3, 2022. ECF No. 52. As a result, the record on appeal now includes documents related to Heyward‘s intake process when he began his probationary period for his South Carolina cocaine possession conviction.
During the intake process, Heyward met with South Carolina Department of Probation, Parole and Pardon Services (“SC PPP“) Agent Kelly Polic Savage. Supp. J.A. 3. Agent Savage submitted an affidavit affirming that during this meeting, she went over a “Project Ceasefire” form with him in accordance with SC PPP policy. Supp. J.A. 10, 16. Though a copy of Heyward‘s form is unavailable due to the lapse in time, Agent Savage provided a “substantially identical” one from 2007 (differing only “cosmetic[ally]” from the one Heyward signed). Supp. J.A. 16. The Project Ceasefire form excerpts in full the language of
I am aware that in view of the above law, I am disqualified from owning or having possession of any firearms, ammunition, or other weapons. I understand that if I have a firearm, ammunition, or other type of weapon that I have to disclose these to my agent this date.
Supp. J.A. 13. Agent Savage asserted that in accordance with this form, she “always instruct[ed] [supervisees] that as a result of their conviction, because of federal law, they are prohibited from possessing firearms and ammunition. If they are found in possession of either they can be prosecuted federally.” Supp. J.A. 16. And, she specified, “I would have instructed Mr. Heyward in this same manner.” Id.
The parties proceeded with their briefing. The Government filed its supplemental response brief, making arguments relying on both the supplemental joint appendix and the original district court record. Heyward then replied, opposing the Government‘s arguments and attacking the reliability of its supplemental evidence.
Finally, in a
II.
As the majority correctly notes, Heyward‘s Rehaif claim is analyzed for plain error. To be entitled to plain-error relief, Heyward must show (1) there was in fact an error during his
“[I]n most cases,” an error that affects substantial rights is a “prejudicial” one—that is, it “affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.4 Specific to guilty pleas, the operative inquiry is whether the defendant has shown “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); accord Greer, 141 S. Ct. at 2098. The Supreme Court fashioned this “difficult” standard, Puckett, 556 U.S. at 135, to “respect the particular importance of the finality of guilty pleas, which usually rest, after all, on a defendant‘s profession of guilt in open court,” Dominguez Benitez, 542 U.S. at 82–83.
Indeed, those solemn and sworn declarations of guilt “are indispensable in the operation of the modern criminal justice system.” Dominguez Benitez, 542 U.S. at 83; see also United States v. Bowman, 348 F.3d 408, 417 (4th Cir. 2003) (“[A]n appropriately conducted
In Greer, the Supreme Court demonstrated how appellate courts should analyze whether a Rehaif error impacted a defendant‘s substantial rights. The Court began by reiterating that on plain-error review, it is the defendant‘s burden to show that the Rehaif error actually impacted his substantial rights. Greer, 141 S. Ct. at 2097–98. That burden is effectively heightened in felon-in-possession cases, the Court explained, because “[i]f a person is a felon, he ordinarily knows he is a felon.” Id. at 2097. “Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.” Id. “[T]hat reality,” the Court poignantly observed, will typically “factor . . . into the [defendant‘s] decision to plead guilty.” Id.
Nonetheless, the Court recognized that “there 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 [a] firearm[].” Id. But that “adequate showing” must come from record evidence. See United States v. Lockhart, 947 F.3d 187, 192–93 (4th Cir. 2020) (en banc) (“[A] defendant must satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.” (emphasis added) (cleaned up)). As we have long held, there must be a “nonspeculative basis” in “the record as a whole” for a defendant to show that a plain error affected his substantial rights. United States v. White, 405 F.3d 208, 223 (4th Cir. 2005). Further, “the mere existence of an error” alone cannot satisfy that burden. United States v. Massenburg, 564 F.3d 337, 344 (4th Cir. 2009).5
Federal law prohibits several categories of individuals from possessing firearms, including any person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.”
As the majority correctly notes, before 2019, in this Circuit the Government did not need to prove that the defendant knew of his
Yet the Rehaif Court did not precisely explain what it meant for a defendant to “know” of his “status.” We subsequently explained in United States v. Moody that a defendant need only know of the facts giving rise to his
In accordance with Greer and Moody, then, Heyward must produce some evidence tending to show that he did not know that his South Carolina cocaine possession offense was punishable by a term of imprisonment exceeding two years to be entitled to plain-error relief. He has not done so. None of the evidence in the district
A.
1.
Assuming the majority correctly limited its analysis to just the evidence the parties developed in the district court, that “record as a whole provides no nonspeculative basis for concluding,” White, 405 F.3d at 223, “that, but for the [Rehaif] error, [Heyward] would not have entered the plea,” Dominguez Benitez, 542 U.S. at 83.
In the consolidated Greer case, the Supreme Court considered the appeal of Michael Gary, who pleaded guilty to a
These same two facts are present here. Heyward admitted during his
Heyward has also “[n]ever disputed the fact of [his] prior conviction[].” Greer, 141 S. Ct. at 2098. To the contrary, he readily admitted in his letter to the district court that his 2006 conviction “made [him] a prohibited person to have a gun.” Sealed J.A. 435. And while he objected to the PSR‘s use of the second-degree murder cross-reference, he did not object to its notation that he was a convicted felon at the time of the offense. See Greer, 141 S. Ct. at 2098 (noting that “information contained in a [PSR]” may be “relevant and reliable” to the court‘s inquiry).
Even more importantly, nowhere in the record did Heyward ever question the fact that his prior South Carolina conviction was punishable by more than two years in prison. One would expect such a protest to have arisen during the Duncan hearing when the Assistant Solicitor confronted Heyward with the fact that his cocaine possession offense “carrie[d] over a year [in prison].” Sealed J.A. 267. But he did not question that factual premise. Rather, Heyward only disputed the legal conclusion the Assistant Solicitor drew from that fact—that “federally [he was] not allowed to possess a gun“—stating, “I guess so. It says on my gun act I pleaded to a misdemeanor and I cannot possess ammunition. But it didn‘t say I can‘t own a firearm.” Id. So even at the most natural point in the record in which one would expect to find Heyward to contest his knowledge about the maximum possible penalty for his prior South Carolina conviction, there is nothing to be found. Accord Majority Op. 13 (agreeing that “[n]either the [G]overnment‘s question nor Heyward‘s answer focuses on” “what [Heyward] knew at the
All told, the record shows that Heyward recognized that he incurred a prior state conviction and admitted, under oath, that it made him a “felon” for
2.
Notwithstanding that clear conclusion, there are two views presented on appeal in opposition—the one Heyward asserts in his supplemental briefing, and the one the majority asserts on his behalf. Heyward asserts that he is entitled to plain-error relief because the record shows he never definitively knew that he could not possess a firearm. The majority holds that he is entitled to plain-error relief for a different reason: he did not know that his prior South Carolina conviction was punishable by a term of imprisonment exceeding two years. Applying the plain-error standard as instructed by the Supreme Court, neither view withstands scrutiny.
Relying most prominently on his Duncan hearing testimony, Heyward argues in his briefing that he “did not believe his prior state misdemeanor conviction disqualified him from possessing a gun in 2014.” Supp. Opening Br. 10.7 But as previously stated, that is not the relevant inquiry.8 Heyward‘s “mistake-of-law defense” mirrors the one we rejected in Moody. See 2 F.4th at 197–98. That should end this case.
The majority ignores this determinative point by opining that Heyward‘s sporadic references in his supplemental briefing to his “felon” status addressed the controlling inquiry: whether he knew that his 2006 South Carolina conviction was punishable by a term of imprisonment exceeding two years. It blames “an overly broad shorthand for what the statute actually forbids” as the source of confusion. Majority Op. 11. But there is no confusion about how Heyward needed to frame his argument because Moody was published several months before Heyward filed his Supplemental Opening Brief. We are
not in the practice of making arguments for litigants; we address only those arguments squarely presented for our review. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (noting that courts—even when dealing with pro se litigants—should not “conjure up questions never squarely presented” or “construct full blown claims from sentence fragments“). The majority has therefore exceeded its proper role by
Equally erroneous is the majority‘s subsequent merits analysis. Despite recognizing that none of Heyward‘s proffered evidence “squarely confronts precisely what the [G]overnment would have been required to prove at a trial,” Majority Op. 11—whether he knew his 2006 conviction was punishable by a term of imprisonment exceeding two years—it nonetheless finds that Heyward is entitled to plain-error relief. To reach that conclusion, the majority cites: (1) Heyward‘s statements that he did not know that his prior conviction barred him from owning a firearm under federal law; (2) the Government‘s failure to cite evidence that Heyward knew that his prior conviction was punishable by a term of imprisonment exceeding two years; (3) speculation about Heyward having been “told” by some unnamed individuals that he was a covered person under
First, as previously noted, binding precedent precludes the majority‘s reliance upon Heyward‘s statements that he did not know his 2006 conviction made it illegal for him to own a firearm. As Moody instructed, the only relevant question is whether “Heyward knew, when he possessed the firearm, that his prior state conviction was punishable by more than two years of imprisonment.” Majority Op. 12; see Moody, 2 F.4th at 198. And the majority correctly recognizes that none of the record evidence answers that factual question. See id. at 12–13 (detailing how each piece of evidence lacks any probative value into “what [Heyward] knew at the time of the offense“). Notwithstanding, the majority concludes that Heyward is entitled to plain-error relief solely because he “consistent[ly] deni[ed]” in 2014 that his prior conviction made it illegal for him to possess a firearm. Id. at 14. That holding ignores what the majority itself seems to recognize was Moody‘s clear mandate: such evidence is irrelevant to the Rehaif analysis. See Moody, 2 F.4th at 197–98; see also Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021) (“[W]e are bound by prior panel decisions.“).
Second, in a similar vein, the majority wrongly faults the Government for Heyward‘s inability to proffer evidence relevant to the question of whether he knew his prior South Carolina conviction was punishable by a term of imprisonment exceeding two years. After conceding that the record evidence does not at all prove “what [Heyward] knew at the time of the offense,” Majority Op. 13, the majority posits that this ambiguity “plagues the [G]overnment‘s reliance” on that evidence to rebut Heyward‘s case for plain-error relief, id. That logic turns the plain-error standard on its head. It is not the Government‘s burden to prove that Heyward knew about his status. It is Heyward‘s “difficult” task to proffer enough evidence to convince us that there is a reasonable probability that he would have chosen to go to trial rather than plead guilty. Puckett, 556 U.S. at 135; see United States v. McCullock, 991 F.3d 313, 319 (1st Cir. 2021) (“McCullock‘s reply brief faults the [G]overnment for not proving with record-based facts that the [proceedings below would have resulted differently absent the plain error]. But it is on McCullock to prove all four plain-error factors, not on the [G]overnment to disprove them.“).
For starters, whether Heyward was “repeatedly” told about the legal effect of his prior South Carolina conviction is irrelevant because it does not tend to prove that he lacked knowledge that his 2006 South Carolina conviction was punishable by more than two years in prison. If the Government is blameworthy for relying on Heyward‘s knowledge of the “‘legal consequences’ of his conviction,” Majority Op. 12 (quoting Moody, 2 F.4th at 198), that same evidence cannot also bolster Heyward‘s case for plain-error relief.
More fundamentally, my colleagues’ characterization of the letter‘s purpose finds no support in the record. Heyward wrote the letter to clarify factual assertions the Government made during the hearing on the second-degree murder cross-reference that he believed “were untrue or [taken] out of context.” Sealed J.A. 432. To that end, he detailed the circumstances of the shooting, Sealed J.A. 432–33, and described his personal history so that the court could “get a better perspective of who and what type of person that I am and not the way things appear on paper.” Sealed J.A. 433–35. During that latter discussion, he informed the court of his criminal history, including the cocaine possession offense that ”made [him] a prohibited person to have a gun.” Sealed J.A. 435 (emphasis added). He concluded by asking the court “for merc[]y and to please consider sentencing me under my [G]uidelines on the day of my sentencing.” Id. Simply put, Heyward did not intend for the letter to “clarify exactly what he knew and when” as to his felon status, as the majority asserts. Majority Op. 14. It was a plea “for merc[]y” during sentencing, specifically and repeatedly directed at the cross-reference that significantly increased his advisory Guidelines range. Sealed J.A. 435. The circumstances under which Heyward wrote this letter thus do not support his argument for plain-error relief.
Finally, the majority often cites Justice Sotomayor‘s separate opinion in Greer, not joined by any other Justice, which asserted that it may be relevant to a Rehaif claim that all of a defendant‘s prior convictions were misdemeanors. Majority Op. 5–6, 13 (citing Greer, 141 S. Ct. at 2103 (Sotomayor, J., concurring in part and dissenting in part)). No similar viewpoint appears in the Greer majority opinion and, with respect to Justice Sotomayor‘s solitary view, Moody precludes the majority‘s reliance upon it. It does not matter if Heyward thought his 2006 conviction was a misdemeanor or a felony. All that matters is if he knew it was punishable by a term of imprisonment exceeding two years, and the majority recognizes there is no probative evidence on that particular question.
In sum, the only fact potentially supporting the result the majority reaches is that Heyward‘s one-year actual sentence was suspended in toto. But there is no record evidence that “squarely confronts” whether he knew he could have received a sentence exceeding two years’ imprisonment. Majority Op. 11. The majority is thus left only to speculate about what Heyward might or might not have known when he possessed the firearm that caused Warren‘s death. Yet speculation alone cannot warrant plain-error relief and Heyward is due none here. See, e.g., United States v. Knight, 606 F.3d 171, 179 (4th Cir. 2010)
B.
The majority‘s missteps do not end there. The Government has submitted—and this Court has already accepted—additional evidence relevant to Heyward‘s Rehaif claim that confirms that he is not entitled to relief. Our prior ruling was in accord with the settled practice of our sister circuits, which in turn was endorsed in Greer. But in a single footnote, the majority diverges from this settled practice. I would not and for good reason.
1.
As a general rule, federal circuit courts of appeal avoid creating circuit splits without a “strong” or “compelling” reason for doing so. See United States v. Thomas, 939 F.3d 1121, 1130 (10th Cir. 2019) (collecting cases from the First, Second, Third, Fifth, Seventh, Ninth, and Federal Circuits). The reason is simple: “federal law . . . is supposed to be unitary.” Wash. Energy Co. v. United States, 94 F.3d 1557, 1561 (Fed. Cir. 1996) (citation omitted). That caution must be amplified when, as here, no party ever formally requested us to take a position on the issue.9 Cf. Herrera v. Churchill McGee, LLC, 680 F.3d 539,
552 n.9 (6th Cir. 2012) (refusing to consider sua sponte a “purely legal issue” because doing so would have required the court take a position on an already existing circuit split).
The source of this dispute is
To paraphrase those courts’ persuasive rationales, it is not the Government‘s fault that it did not proffer evidence showing Heyward‘s knowledge of the facts giving rise to his felon status. The parties and district court all followed then-existing (albeit incorrect) circuit precedent about that element of the offense. See Langley, 62 F.3d at 604–07 (holding that a prosecution under
“error” caused the Government to not proffer that evidence during the
Given this weight of authority, I would conclude that when a defendant asserts a Rehaif claim for the first time on appeal,
But the majority takes a different view. After reciting
In sum, the consequences of the majority‘s decision are far greater than its one-footnote treatment of this issue would imply. The majority creates a circuit split while at the same time setting the precedent that this Court‘s “inherent equitable authority to supplement the record on appeal,” Majority Op. 8 n.3 (citation omitted), is not worth exercising even when the Government has proffered reliable evidence that “establish[es] beyond any doubt” that a defendant is not entitled to plain-error relief. CSX Transp., Inc., 235 F.3d at 1330. If these facts do not permit the Government to supplement the record on appeal, it is hard to envision those that do.
2.
The supplemental record evidence confirms what was already evident from the district court record: there is no reasonable probability that Heyward would have elected to go to trial had his
Recall that during an exchange with the Assistant Solicitor during his state Duncan hearing, Heyward initially disputed the claim that “federally [he was] not allowed to possess a gun” by testifying as follows: “I guess so. It says on my gun act I pleaded to a misdemeanor and I cannot possess ammunition. But it didn‘t say I can‘t own a firearm.” Sealed J.A. 267. As the parties acknowledged during oral argument, Heyward‘s reference to his “gun act” is directed to the Project Ceasefire form that he signed during his intake with the SC PPP. Indeed, a Scheduling Entry from SC PPP‘s system shows that Heyward “completed” “[a]ll forms” during his intake, including “Project Ceasefire.” Supp. J.A. 3.
The exact form Heyward signed was unavailable, so the Government introduced a copy of the form that went into effect in 2007, one year after his intake. Given this, the parties dispute to some extent what Heyward‘s Project Ceasefire form said about the legal consequences of his cocaine possession conviction. Compare Supp. J.A. 13 (the 2007 form‘s affirmation statement requiring the supervisee to certify that he knew he was “disqualified from owning or having possession of any firearms“), with
What does matter—and is also undisputed—is that Heyward “completed” a form that reflected he was now governed by
The Government‘s supplemental evidence provides reliable and probative guidance on the only controlling inquiry here—whether Heyward knew at the time of his offense that he was convicted of an offense carrying a maximum term of imprisonment exceeding two years. It thus was properly accepted into the record on appeal, and confirms that Heyward has not satisfied his burden on plain-error review.
C.
Finally, pursuant to
The Government has cited decisions from the First, Second, and Fifth Circuits in which a defendant asserted on plain-error review that he did not know about the facts that made his prior state conviction a “felony” for purposes of
Heyward does not challenge this aspect of South Carolina law, but instead counters that the Government has waived reliance on these authorities by not citing them in its merits briefing. See, e.g., United States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013) (explaining that litigants may not use
The latter two factors strongly counsel in favor of excusing the Government‘s alleged waiver here. Applying the uncontroverted import of Burghardt, Bryant, and Huntsberry would provide even more certainty to the analysis of Heyward‘s plain-error claim, a result that gives full credence to the Supreme Court‘s demand that appellate courts “consider the entire record” on plain-error review. Greer, 141 S. Ct. at 2098. Moreover, enforcing the Government‘s alleged waiver now would be futile because on remand, it would simply direct the factfinder to this same controlling principle of state law to reach the same conclusion that can already be drawn on the existing record. Resolving the issue now on plain-error review would therefore “promote judicial economy,” Holness, 706 F.3d at 593, and the fairness, integrity, and public reputation of judicial proceedings, see United States v. Cotton, 535 U.S. 625, 634 (2002) (observing that “[t]he real threat . . . to the ‘fairness, integrity, and public reputation of judicial proceedings‘” would be to afford a defendant plain-error relief despite “overwhelming and uncontroverted evidence” of his guilt (citation omitted)).12
As noted, South Carolina requires state court judges to inform a defendant of an offense‘s maximum punishment before accepting his guilty plea. Pittman, 524 S.E.2d at 624. It therefore “seems virtually certain” that Heyward was told “face-to-face what his maximum sentence could be, an inference bolstered by his lack of appeal of [that] plea[] at the time for failure to comply with [South Carolina] law.” Burghardt, 939 F.3d at 404. Indeed, nowhere in the modest record developed by the parties does Heyward ever intimate that his state court plea hearing violated this mandate. These facts, when considered in conjunction with all of the evidence previously discussed, leave “little possibility that [Heyward] was ignorant of” the facts giving rise to his status. Huntsberry, 956 F.3d at 285; accord Bryant, 976 F.3d at 176. There is simply no good reason to turn a blind eye to this relevant and reliable evidence on plain-error review.
IV.
Despite bearing the burden of persuasion, Heyward supports his plain-error argument with no evidence of his own. He mostly relies on negative inferences drawn from evidence that the Government has proffered. And what evidence he does rely upon lends no insight into whether he knew when he committed the instant
of imprisonment exceeding two years. Heyward has not come close to meeting his burden of
I therefore respectfully dissent and would affirm the judgment of the district court.13
Notes
Rule 10(e) “does not grant a license to build a new record” on appeal, United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (quotation marks omitted), and we decline to exercise any “inherent equitable authority to supplement the record on appeal” we may have beyond the scope of that rule, Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1012 (6th Cir. 2003). Although our sister circuits have sometimes permitted the government to supplement the record with judicially noticeable documents that existed at the time of the conviction, see United States v. Lara, 970 F.3d 68, 88 (1st Cir. 2020); United States v. Brandon, 965 F.3d 427, 432 n.2 (5th Cir. 2020); United States v. Miller, 954 F.3d 551, 559-60 (2d Cir. 2020), that is a far cry from seeking to add an affidavit created long after Heyward‘s conviction and even after he filed his opening supplemental brief on appeal. We thus resolve this case based solely on the record before the district court and vacate our earlier single-judge order to the extent it conflicts with this decision. See
Even assuming the district court committed legal error by applying the principles governing an “imperfect self-defense” theory under South Carolina law to the cross-reference issue, any such error was harmless. See United States v. Hargrove, 701 F.3d 156, 161 (4th Cir. 2012) (explaining that procedural sentencing errors are reviewed for harmlessness). Heyward claimed only that voluntary manslaughter was the appropriate cross-reference because he feared that he was being robbed when he shot Warren. But the district court found as fact that this story was “incredible,” instead finding that Heyward “was engaged in a drug deal” and acted “in a drug-induced paranoia” when he shot Warren. J.A. 123; see also J.A. 116–29. That finding is reviewed only for clear error, United States v. Lynn, 912 F.3d 212, 216 (4th Cir. 2019), a standard that requires giving considerable deference to the district court as the factfinder, Anderson v. City of Bessemer City, 470 U.S. 564, 573–75 (1985). Moreover, within this already deferential standard, “credibility determinations are deserving of the highest degree of appellate deference.” Teleguz v. Zook, 806 F.3d 803, 812 (4th Cir. 2015) (emphasis added) (cleaned up). Heyward cannot surmount this heavy burden. Sufficient evidence supported the district court‘s finding that his story was incredible, which in turn justified its cross-reference to the second-degree murder guideline when calculating Heyward‘s Guidelines range.