UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MICHAEL ANDREW GARY, Defendant – Appellant.
No. 18-4578
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 25, 2020
PUBLISHED. Argued: December 11, 2019. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:17-cr-00809-JFA-1)
Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Alyssa Leigh Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Michael Andrew Gary appeals his sentence following a guilty plea to two counts of possession of a firearm and ammunition by a person previously convicted of a felony, in violation of
Upon consideration of the parties’ arguments, we hold that Gary‘s guilty plea was not knowingly and intelligently made because he did not understand the essential elements of the offense to which he pled guilty. Because the court accepted Gary‘s plea without giving him notice of an element of the offense, the court‘s error is structural. We therefore vacate his guilty plea and convictions and remand the case to the district court for further proceedings.
I.
On January 17, 2017, Gary was arrested following a traffic stop for driving on a suspended license. Gary‘s cousin, Denzel Dixon, was a passenger in the vehicle. During an inventory search of the vehicle, officers recovered a loaded firearm and a small plastic bag containing nine grams of marijuana. Gary admitted to possession of both the gun and
Five months later, on June 16, 2017, officers encountered Gary and Dixon outside a motel room while patrolling the motel‘s parking lot. The officers detected the odor of marijuana, and as they approached, Gary and Dixon entered the back seat of a vehicle. Dixon had a marijuana cigarette in his lap. The men consented to a personal search, and the officers found large amounts of cash on both men and a digital scale in Dixon‘s pocket. After receiving permission to search the vehicle, the officers found a stolen firearm, ammunition, “a large amount” of marijuana in the trunk, and baggies inside a backpack. J.A. 105. Gary claimed the gun was his and admitted that he regularly carried a firearm for protection. Dixon claimed ownership of the marijuana. Gary was arrested and charged under state law with possession of a stolen handgun. Gary had, at the time of his arrests, a prior felony conviction for which he had not been pardoned.
Gary was indicted in federal court and later pled guilty without a plea agreement to two counts of possession of a firearm and ammunition after having been convicted of a felony, in violation of
Gary appealed his sentence to this Court.2 During the pendency of his appeal, Gary filed a letter pursuant to
II.
Because Gary did not attempt to withdraw his guilty plea in the district court, we review his plea challenge for plain error. United States v. McCoy, 895 F.3d 358, 364 (4th Cir. 2018). To succeed under plain error review, a defendant must show that: (1) an error
Gary argues the first two prongs of plain error analysis are established by the decision in Rehaif itself—that an error occurred and that it was plain. He contends that the third prong, which requires Gary to show an effect on his substantial rights, is satisfied as well. Without notice that the government was required to prove an additional element not previously disclosed at the time of his guilty plea, Gary argues that he could not have knowingly and intelligently pled guilty, rendering his plea constitutionally invalid.4
The government concedes that the district court committed plain error in failing to inform Gary of the Rehaif element, but contends that omission of this element from the plea colloquy did not affect Gary‘s substantial rights because there is overwhelming
But the decisions cited by the government are distinguishable from Gary‘s case in at least one key respect—the courts did not consider whether the district court‘s acceptance of a guilty plea without informing the defendant of every element of the offense was a
III.
A.
We agree with the parties that the first two prongs of Olano plain error review have been met by the district court‘s failure to give Gary notice of the Rehaif element of the
Moreover, the error was plain. To be “plain,” an error must be “clear or obvious at the time of appellate consideration.” United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014) (citations and internal quotation marks omitted); see also Olano, 507 U.S. at 734; Henderson v. United States, 568 U.S. 266, 273 (2013);
This was the case here. At the time of Gary‘s guilty plea, the parties and the district court relied on this Court‘s decision in United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc), abrogated by Rehaif, 139 S. Ct. at 2191, wherein this Court had held that knowledge of one‘s prohibited status was not a required element of a
B.
Having established that the first two prongs have been met, we must consider whether Gary has established the third prong of an Olano inquiry—that the error affected his substantial rights. See Olano, 507 U.S. at 732.
1.
The government argues that although the court‘s failure to inform Gary of the additional element of the offense was error, it did not affect his substantial rights because there is overwhelming evidence in the record that he was aware he had been convicted of
In response, Gary argues that his guilty plea is “constitutionally invalid” because the court misinformed him regarding the elements of his offense. Relying on Supreme Court precedent, he contends that a constitutionally invalid plea affects substantial rights as a per se matter and supports the conclusion that a defendant need not make a case-specific showing of prejudice even in the face of overwhelming evidence that he would have pled guilty.
Further, Gary asserts that the district court‘s error in accepting his unintelligent guilty plea is structural because it infringed upon his autonomy interest in “mak[ing] his own choices about the proper way to protect his own liberty.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1907–08 (2017). He contends this violation is comparable to the infringement that occurs when a defendant is denied the right to self-representation or the right to the counsel of his choice—and therefore affects his substantial rights regardless of the strength of the prosecution‘s evidence or whether the error affected the ultimate outcome of the proceedings.
We find Gary‘s argument persuasive. “In most cases,” the phrase “affects substantial rights” means that “the error must have been prejudicial“—that is, “[i]t must have affected the outcome of the district court proceedings.” Ramirez-Castillo, 748 F.3d at 215 (citing Olano, 507 U.S. at 734). Stated differently, to establish that a Rule 11 error
But the Supreme Court has recognized that a conviction based on a constitutionally invalid guilty plea cannot be saved “even by overwhelming evidence that the defendant would have pleaded guilty regardless.” Dominguez Benitez, 542 U.S. 74, 84 n.10. For example, in Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court held that a guilty plea is constitutionally valid only to the extent it is “voluntary” and “intelligent.” Id. at 618. A plea does not qualify as intelligent unless a criminal defendant first receives “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Id. (citing Smith v. O‘Grady, 312 U.S. 329, 334 (1941)).
Similarly, in Henderson v. Morgan, 426 U.S. 637, 645 (1976), the Supreme Court invalidated a guilty plea to second degree murder where the defendant was not informed of the mens rea requirement. Such a plea, the Court held, could not support a judgment of guilt unless it was “voluntary in a constitutional sense,” and the plea could not be voluntary, i.e. an intelligent admission that he committed the offense, unless the defendant received “real notice of the true nature of the charge against him.” Id. at 645–46. The Court assumed the prosecutor had overwhelming evidence of the defendant‘s guilt, but found that nothing in the record, not even the defendant‘s admission that he killed the victim, could
Gary‘s argument is supported by the Supreme Court‘s long-held view that there is “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” and that “not in every case” does a defendant have to “make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong . . . .” Olano, 507 U.S. at 735. This Court has recognized that this language refers to “structural errors.” United States v. David, 83 F.3d 638, 647 (4th Cir. 1996); see also United States v. Marcus, 560 U.S. 258, 263 (2010) (certain “structural errors” might affect substantial rights regardless of their actual impact on an appellant‘s trial); United States v. White, 405 F.3d 208, 221 (4th Cir. 2005) (Olano recognizes a “special category of unpreserved errors . . . that may be noticed ‘regardless of their effect on the outcome‘“). Such errors are referred to as “structural” because they are “fundamental flaws” that “undermine[] the structural integrity of [a] criminal tribunal.” See Vasquez v. Hillery, 474 U.S. 254, 263–64 (1986).
“The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it ‘affect[s] the framework within which the trial proceeds,’ rather than being ‘simply an error in the trial process itself.‘” Weaver, 137 S. Ct. at 1907–08 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Structural errors are “defects in the constitution of the trial mechanism which defy analysis by
The Supreme Court has identified a “limited class” of errors as structural. Johnson v. United States, 520 U.S. 461, 468–69 (1997). See, e.g., McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (attorney admission of defendant‘s guilt over defendant‘s objection); Sullivan v. Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-doubt instruction); Vasquez, 474 U.S. at 254 (racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S. 39 (1984) (violation of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168 (1984) (right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (total deprivation of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial trial judge). “The precise reason why a particular error is not amenable to [harmless error] analysis—and thus the precise reason why the Court has deemed it structural—varies in a significant way from error to error,” Weaver, 137 S. Ct. at 1907–08, but the Supreme Court has adopted at least three broad rationales for identifying errors as structural.
First, an error has been deemed structural in instances where “‘the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,’ such as ‘the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.‘” McCoy, 138 S. Ct. at 1511 (quoting Weaver, 137 S. Ct. at 1908). Deprivations of the Sixth Amendment
Second, an error has been deemed structural if the effects of the error are simply too hard to measure; i.e. where “the precise ‘effect of the violation cannot be ascertained.‘” United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (quoting Vasquez, 474 U.S. at 263). Such is the case where the consequences of a constitutional deprivation “are necessarily unquantifiable and indeterminate,” Gonzalez-Lopez, 548 U.S. at 150. For example, when a defendant is denied the right to select his or her own attorney, the government will, as a result, find it almost impossible to show that the error was “harmless beyond a reasonable doubt.” Weaver, 137 S. Ct. at 1908 (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
“Third, an error has been deemed structural if the error always results in fundamental unfairness,” such as in the denial of the right to an attorney in Gideon, 372 U.S. at 343–45, or in the failure to give a reasonable doubt instruction as in Sullivan, 508 U.S. at 279. In these circumstances, it “would therefore be futile for the government to try to show harmlessness.” Weaver, 137 S. Ct. at 1908.
These three categories are not rigid; more than one of these rationales may be part of the explanation for why an error is deemed structural. Weaver, 137 S. Ct. at 1908. Thus, an error can count as structural even if the error does not lead to fundamental unfairness in every case. Id., see Gonzalez-Lopez, 548 U.S. at 149, n.4 (rejecting the idea that structural errors “always or necessarily render a trial fundamentally unfair and unreliable“).
The Supreme Court has expressly reserved the question of whether structural errors automatically satisfy the third prong of Olano, see Puckett v. United States, 556 U.S. 129, 140–41 (2009), but this Court has held that such errors necessarily affect substantial rights, satisfying Olano‘s third prong.7 See David, 83 F.3d at 647 (failure to instruct jury on an element of the offense is within the “special category” of forfeited errors). Therefore, if an error is determined to be structural, the third prong of Olano is satisfied. Ramirez-Castillo, 748 F.3d at 215. Against this backdrop, we must determine whether the constitutional error in this case is a structural error that satisfies the third prong of an Olano inquiry.
Under each of the Supreme Court‘s rationales, we find the district court‘s error is structural. First, the error violated Gary‘s right to make a fundamental choice regarding his own defense in violation of his Sixth Amendment autonomy interest. Indeed, the Sixth Amendment contemplates that “the accused . . . is the master of his own defense,” and thus certain decisions, including whether to waive the right to a jury trial and to plead guilty, are reserved for the defendant. McCoy, 138 S. Ct. at 1508.
Gary had the right to make an informed choice on whether to plead guilty or to exercise his right to go to trial. In accepting Gary‘s guilty plea after misinforming him of the nature of the offense with which he was charged, the court deprived him of his right to
Further, we find that the district court‘s error is structural because the deprivation of Gary‘s autonomy interest under the Fifth Amendment due process clause has consequences that “are necessarily unquantifiable and indeterminate,” see Gonzalez-Lopez, 548 U.S. at 150, rendering the impact of the district court‘s error simply too difficult to measure. See id. at 149 n.4 (quoting Vasquez, 474 U.S. at 263) (finding structural error where “the precise ‘effect of the violation cannot be ascertained.‘“)
Here, as in Gonzalez-Lopez, “we rest our conclusion of structural error upon the difficulty of assessing the effect of the error.” 548 U.S. at 149 n.4; see also Waller, 467 U.S. at 49 n.9 (error not subject to harmless error review where the benefits of the right infringed “are frequently intangible, difficult to prove, or a matter of chance.“). The error here occurred in the context of a guilty plea and thus is not the type of error that “‘may be quantitatively assessed in the context of other evidence presented [at trial] in order to determine whether [the error was] harmless beyond a reasonable doubt.‘” Gonzalez-Lopez, 548 U.S. at 148 (citing Fulminante, 499 U.S. at 307–08). And unlike Rule 11 errors amounting to “small errors or defects that have little if any, likelihood of having changed the result of the [proceeding],” see Chapman, 386 U.S. at 22, the impact of this error—an undisputed constitutional violation where Gary was misinformed about the nature of the
Finally, we independently find the error is structural on the ground that fundamental unfairness results when a defendant is convicted of a crime based on a constitutionally invalid guilty plea. Gary waived his trial rights after he was misinformed regarding the nature of a
Regardless of evidence in the record that would tend to prove that Gary knew of his status as a convicted felon, it is in the interest of justice that Gary knowingly and intelligently “engag[e] in the calculus necessary to enter a plea on which this Court can rely in confidence.” Lockhart, 947 F.3d at 197. Any conviction resulting from a constitutionally invalid plea “cannot reliably serve its function as a vehicle for determination of guilt or innocence, . . . and no criminal punishment [based on such a plea] may be regarded as fundamentally fair.” See Neder, 527 U.S. at 8–9 (quoting Rose v. Clark, 478 U.S. at 577–78).
Accordingly, we conclude that the district court‘s constitutional error is structural and affects Gary‘s substantial rights, satisfying the third prong of the Olano inquiry.
C.
Finally, having found that Gary has satisfied the three prongs under Olano, this Court must determine whether it should exercise its discretion to correct the error. 507 U.S. at 732. The fact that the district court‘s error affected Gary‘s substantial rights does not alone warrant the exercise of our discretion. We are “not obligated to notice even structural error on plain error review.” Id. at 737. We exercise our discretion on plain error review only when “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736. “Central to this inquiry is a determination of whether, based on the record in its entirety, the proceedings against the accused resulted
The Fifth Amendment guarantees a criminal defendant due process in the course of criminal proceedings that could deprive him of life, liberty, or property.
Accordingly, the integrity of our judicial process demands that each defendant who pleads guilty receive the process to which he is due. It is the duty of the court to ensure that each defendant who chooses to plead guilty enters a knowing and voluntary plea.
The impact of a guilty plea upon a defendant‘s fundamental rights cannot be overstated. An individual‘s choice to plead guilty is his alone to make—after he has been
We recognize that there is an importance in respecting the finality of guilty pleas and the laudable purpose they serve as part of our criminal justice system. Indeed, our system encourages guilty pleas; they benefit both defendants, for whom they may result in lesser penalties and the dismissal of additional charges, and the government, which favors judicial economy. Accordingly, we must proceed with caution when permitting their vacatur. But the structural integrity of the judicial process is not only at stake but undermined when we permit convictions based on constitutionally invalid guilty pleas to stand. There should be no instance where such a plea is accepted for the sake of obtaining a conviction, particularly where a defendant who did not receive notice of the true nature of an offense might unknowingly forgo the opportunity to raise an available defense.
As Olano makes clear, a reviewing court should exercise its discretion to grant plain error review “in those circumstances in which a miscarriage of justice would otherwise
We therefore hold that the district court‘s erroneous acceptance of a constitutionally invalid guilty plea “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732. Accordingly, we exercise our discretion to notice the error and vacate Gary‘s guilty plea and convictions.
IV.
For these reasons, we vacate Gary‘s plea and convictions, and remand the case to the district court for further proceedings.
VACATED AND REMANDED