UNITED STATES OF AMERICA, Appellee, v. JUAN ANIBAL PATRONE, a/k/a Juan Anibal, a/k/a Juan Anibal Patrone-González, a/k/a Flacco, a/k/a Poppo, a/k/a Carlos, Defendant, Appellant.
No. 19-1486
United States Court of Appeals For the First Circuit
January 14, 2021
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
Before Thompson, Lipez, and Kayatta, Circuit Judges.
Leonard E. Milligan III, with whom Jin-Ho King and Milligan Rona Duran & King LLC were on brief, for appellant.
Theodore B. Heinrich, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
Applying this precedent, we find that defendant Juan Anibal Patrone fails to establish a reasonable probability that he would not have pled guilty had he been advised as Rehaif requires. For independent reasons, we also reject his objections to his sentence. Our reasoning follows.
I.
Patrone, a citizen of Italy and of the Dominican Republic, lawfully entered the United States on a tourist visa and settled in Lawrence, Massachusetts, in 2009 or 2010. At some point, his visa expired, although the record does not specify when this occurred. He subsequently obtained a work permit and was “in the midst of applying to remain in the United States” at the time of his arrest in the instant action.
In April 2016, the Drug Enforcement Administration commenced an investigation into a drug trafficking organization in Lawrence, Massachusetts. In the course of this investigation, the government gathered overwhelming evidence that Patrone had been involved in the widespread distribution and sale of fentanyl and other drugs for several years. The government also seized a loaded 10 millimeter firearm from his bed at the time of his arrest.
Before accepting his guilty plea, the district court informed Patrone that a conviction for violating section
A month after Patrone‘s sentencing, the United States Supreme Court issued its opinion in Rehaif. As relevant here, Rehaif‘s holding means that had Patrone gone to trial, the government would have needed to prove beyond a reasonable doubt that when he possessed the gun, he knew that he was unlawfully in the United States. Rehaif, 139 S. Ct. at 2198. As is customary in criminal law, we refer to the degree of such knowledge as “scienter,” id. at 2195, or (in this instance) “scienter-of-status.” See Burghardt, 939 F.3d at 400.
Patrone asks that we vacate his conviction on the firearm count because the government did not charge him with, and he did not plead guilty to, knowing the facts that made him a person prohibited from possessing a firearm, as Rehaif now requires. In addition, Patrone requests a remand for resentencing, claiming that the district court mistakenly applied a two-level sentencing enhancement for criminal livelihood on the drug charge under
II.
A.
Before accepting a guilty plea, a district court must conduct a colloquy with the defendant to ensure that he “understands the elements of the charges that the prosecution would have to prove at trial.” Burghardt, 939 F.3d at 402 (quoting United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000)); see also
The parties agree that, after Rehaif, the district court‘s (understandable) failure to ascertain whether Patrone knew that he was an alien unlawfully in the United States constitutes clear error. So our inquiry hinges on prongs three and four of the plain error standard -- whether the district court‘s error prejudiced Patrone (i.e., were his substantial rights affected) and whether the error “seriously impugns the fairness, integrity, or public reputation of the proceeding.” Correa-Osorio, 784 F.3d at 18. In a case such as this, an assessment of prejudice will usually turn on whether the defendant can show a “reasonable probability that, but for the purported error, he would not have pled guilty.” Burghardt, 939 F.3d at 403 (quoting United States v. Diaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017)); see generally Dominguez Benitez, 542 U.S. 74 (2004).
Claiming to accede to plain error review, Patrone actually argues for a variant of that review. That variant treats the third prong as always satisfied when the discussion of an offense during a plea colloquy omits an element of the offense, regardless of whether the omission actually played any role in the defendant‘s decision to plead. The Fourth Circuit recently adopted such a variant, calling Rehaif error a structural error that per se adversely affects a defendant‘s substantive rights. United States v. Gary, 954 F.3d 194, 203-05 (4th Cir. 2020) (“[T]his Court has held that [structural errors] necessarily affect substantial rights, satisfying [the plain error standard‘s] third prong.“), cert. granted, No. 20-444, 2021 WL 77245 (Jan. 8, 2021).
We have already crossed this bridge, but in the opposite direction, requiring that a defendant who asserts an unpreserved claim of Rehaif error must demonstrate prejudice in the form of “a reasonable probability that, but for this purported error, he would not have pled guilty.” Burghardt, 939 F.3d at 403. Nor do we see good reason to reverse our path. The Supreme Court itself gestures in the direction we have taken. See Dominguez Benitez, 542 U.S. at 81 n.6 (“The omission of a single Rule 11 warning without more is not colorably structural.“). And at least two other circuits have rejected Gary‘s adoption of Patrone‘s proffered version of plain error review in cases such as this. United States v. Hicks, 958 F.3d 399, 401-02 (5th Cir. 2020) (rejecting the Fourth Circuit‘s structural error holding in Gary); United States v. Coleman, 961 F.3d 1024, 1029–30 (8th Cir. 2020) (rejecting the argument that a plea suffering from a Rehaif error is structural error and applying a reasonable probability standard to the third prong of plain error review). Six other circuits proceed more or less as we have, albeit without expressly considering an argument that a Rehaif error is a structural error that automatically satisfies the third prong of plain error review. See United States v. Balde, 943 F.3d 73, 97-98 (2d Cir. 2019) (noting that in some cases a Rehaif error may have no effect on a defendant‘s conviction or decision to plead guilty); United States v. Sanabria-Robreno, 819 F. App‘x 80, 82-83 (3d Cir. 2020) (applying a reasonable probability standard to the third prong of plain error review); United States v. Hobbs, 953 F.3d 853, 857-58 (6th Cir. 2020) (same); United States v. Williams, 946 F.3d 968, 975 (7th Cir. 2020) (rejecting a defendant‘s argument that the government should bear the burden of persuasion in Rehaif cases and applying a reasonable probability standard to the third prong of plain error review); United States v. Fisher, 796 F. App‘x 504, 510 (10th Cir. 2019) (applying a reasonable probability standard to the third prong of plain error review); United States v. McLellan, 958 F.3d 1110, 1119–20 (11th Cir. 2020) (same).
We see no error in the structure of the proceedings in the district court that necessarily impacted Patrone‘s substantial rights; rather, we see an error in describing an offense, the likely effect of which can often be reasonably discerned from the facts of the case. Compare Burghardt, 939 F.3d at 404 (finding that there was no reasonable probability that the defendant would have pled otherwise), with Guzmán-Merced, 2020 WL 7585176, at *2 (finding that there was a reasonable probability the defendant would not have entered a guilty plea had he known of the scienter-of-status requirement). Under Patrone‘s proposed approach, a defendant not informed that an offense requires proof of his knowledge that he was not legally within the United States at the time of his offense could withdraw his plea even if he was carrying a copy of his affirmed order of removal at the time of the offense. Finding that such an outcome fits poorly with Rule 52, we opt to stay the course. Our decision in this case, as in Burghardt and Guzman, therefore turns on whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different.
Patrone contends that he would not have pled guilty to the firearm offense had he known about the scienter-of-status element, because there was little or no evidence that he knew that his presence in the United States was unlawful. Certainly the record as it stood at the plea colloquy was sparse on this question: It merely established that his arrest occurred long after his tourist visa had likely expired, and after he had applied to remain in the United States. This is far from the “overwhelming proof” of guilt that led us to find no prejudice in Burghardt, 939 F.3d at 404. Perhaps Patrone believed his pending application to remain in the United States rendered his presence lawful. Of course, Patrone would have had to consider what additional evidence of scienter-of-status the government might have gathered and presented, had it known it would be required to do so to secure a conviction at trial. But at this juncture, the government does not and cannot reasonably contend that it certainly would have prevailed at trial had Patrone not pled guilty to the section
Our inquiry, though, does not end with weighing the likelihood of a conviction in light of the scienter-of-status element that the government must prove. Other considerations may also bear heavily on a defendant‘s decision to plead guilty. For example, in this case, Patrone had no reasonable option but to plead guilty to the related and more serious drug charge, for which the government‘s proof was overwhelming. Indeed, Patrone makes no claim that he would not have pled guilty to the drug count had he thought he might beat the firearm possession count. Even on this appeal, he does not seek to withdraw his plea on the drug count, asking for resentencing only if we first find that his GSR must be recalculated without the two-level leadership enhancement imposed by the district court. Patrone must have known when he decided to plead guilty that the drug count would determine the length of his imprisonment: Both parties -- and Probation, in the PSR -- correctly anticipated that the firearms charge would generate only a lower, concurrent sentence. And Patrone does not claim that he anticipated that the firearm count might add any term to his conditions of imprisonment or
In fact, choosing to proceed to trial on the firearm charge instead of pleading guilty may well have put Patrone in a worse position at sentencing, as his ability to retain the three-level offense reduction for acceptance of responsibility that he received under the Guidelines would have been uncertain at best. This circuit has yet to decide whether a defendant indicted on multiple counts can receive an acceptance of responsibility reduction when pleading to fewer than all of the counts. See United States v. Deppe, 509 F.3d 54, 61 (1st Cir. 2007) (declining to determine whether “acceptance of responsibility is an all[-]or[-]nothing proposition and [whether] a rebuttable presumption of non-availability . . . applies where a defendant pleads guilty to some but not all of the crimes charged in a multi-count indictment“). But most other circuits addressing this issue have held either that an all-or-nothing approach should be taken -- that failure to plead to all counts irrevocably removes the possibility for acceptance-of-responsibility credits -- or that such credits are lost when the charges pled to and charges contested unsuccessfully at trial are grouped for purposes of sentencing. See United States v. Hargrove, 478 F.3d 195, 200 (4th Cir. 2007); United States v. Williams, 344 F.3d 365, 379-81 (3d Cir. 2003); United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001); United States v. Chambers, 195 F.3d 274, 277-79 (6th Cir. 1999); United States v. Ginn, 87 F.3d 367, 371 (9th Cir. 1996); United States v. Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992).
So the actual decision Patrone faced was this: Given that he was pleading guilty to the drug count, should he also plead guilty to the gun charge, adding nothing to his sentence and locking in a lower Guidelines sentencing range (GSR),1 or should he go to trial on the gun charge, thereby triggering a potentially higher GSR on the drug count? In short, should he go to trial with no hope of lowering his sentence and a real risk that he might lengthen it? For virtually all defendants, the choice would be easy and the answer clear -- plead to both counts in order to lock in the reduction for acceptance of responsibility to the extent possible, unless, perhaps, victory was certain.
Patrone counters by suggesting that by avoiding conviction on the gun charge, he might have garnered a lower GSR by availing himself of the safety valve provision of
* * *
For the foregoing reasons, Patrone fails to establish that his substantial rights were affected by the district court‘s failure to anticipate Rehaif.2
B.
We next turn to Patrone‘s challenge to the livelihood enhancement that he received at sentencing. The effect of this enhancement was to raise his GSR from 262-327 months’ imprisonment to 324-405 months‘.
The government raises a fair question concerning whether Patrone preserved any objection to the availability of the livelihood enhancement. We sidestep that question by holding that, even if preserved, the objection fails. Our reasoning follows.
A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of
circumstances shows that such criminal conduct was the defendant‘s primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment[,] or the defendant‘s legitimate employment was merely a front for the defendant‘s criminal conduct).
Patrone claims that he was not engaged in the business of selling fentanyl for long enough to render it a “livelihood” under section
Additionally, the language in the Guidelines and the relevant application notes does not support Patrone‘s interpretation. “Pattern of criminal conduct” includes the requirement that the planned criminal acts occurred “over a substantial period of time.”
III.
Based on the foregoing, we affirm Patrone‘s conviction and sentence.
17