UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene Lockhart, Defendant - Appellant.
No. 16-4441
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 10, 2020
ON REHEARING EN BANC
PUBLISHED
Appeal from the
Argued: September 19, 2019 Decided: January 10, 2020
Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Chief Judge Gregory, Judge Wilkinson, Judge Motz, Judge King, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker, Judge Harris, and Judge Richardson joined. Judge Wilkinson wrote a concurring opinion. Judge Wynn wrote a concurring opinion. Judge Rushing wrote a dissenting opinion, in which Judge Niemeyer, Judge Agee, and Judge Quattlebaum joined.
ARGUED: Joshua B. Carpenter, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
Jesmene Lockhart appeals his conviction for possession of a firearm by a convicted felon, in violation of
Upon consideration of the parties’ arguments, we hold that Lockhart has established prejudice for purposes of plain error review. We therefore vacate his conviction and remand the case to the district court for further proceedings.
I.
In September 2014, officers with the Charlotte-Mecklenburg Police Department in North Carolina responded to a report of suspicious activity involving individuals in a parked car. When they arrived at the scene, an officer saw Lockhart sitting in the driver‘s seat of the vehicle. The officer observed Lockhart use his right hand to provide his identification, “while reaching down by his left leg with his left hand, where the officer saw the butt of [a] gun with a magazine clip.” The officers recovered the loaded handgun and an additional magazine from the driver‘s side of the car, and the authorities later determined that the firearm was stolen.
Lockhart pleaded guilty without a written plea agreement to a single count of possession of a firearm by a convicted felon, in violation of
The probation officer prepared a presentence report (PSR), and recommended sentencing Lockhart as an armed career criminal under the ACCA based on three prior convictions for North Carolina robbery with a dangerous weapon. All his convictions were based on offenses committed in a one-week time period when Lockhart was 16 years old. In the PSR, the probation officer explicitly highlighted the error in the plea colloquy, noting that Lockhart “was informed that his statutory penalties . . . were not more than ten years[‘] imprisonment,” but that “based on [Lockhart‘s] three prior convictions for violent felonies, [his] statutory penalties . . . are not less than fifteen years[‘] imprisonment.”
Lockhart‘s counsel objected to the proposed ACCA designation on the grounds that (1) Lockhart‘s North Carolina convictions, which were consolidated for judgment, should count as a single ACCA predicate, and (2) an ACCA sentence would violate the Eighth Amendment because Lockhart was a juvenile when he committed the offenses. Lockhart did not assert that he previously had been unaware of his potential ACCA designation, nor did he seek to withdraw his guilty plea.
After overruling the objections of Lockhart‘s counsel, the district court concluded that Lockhart qualified as an armed career criminal under the ACCA and imposed the mandatory minimum term of 180 months’ imprisonment. Following the court‘s imposition of sentence, Lockhart‘s counsel conferred with the government‘s counsel and informed the court:
I‘m going back to his plea colloquy. He didn‘t plead to 924(e) [ACCA] it was not on the Bill of Indictment. But I went over it beforehand. So I just want to put it on the record that he was fully aware of that. I just thought about it.
The government‘s counsel added, “We just wanted to make a record of that.” The district court did not ask counsel to elaborate on the issue, and did not confirm with Lockhart whether he was aware of his potential ACCA exposure before pleading guilty.
Lockhart appealed, represented by new appellate counsel. A panel of this Court affirmed Lockhart‘s conviction. See United States v. Lockhart, 917 F.3d 259 (4th Cir. 2019), vacated by 771 F. App‘x 204 (4th Cir. 2019). Upon Lockhart‘s request for rehearing, we vacated the panel‘s opinion and now consider the case en banc.
II.
Because Lockhart 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 occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). We retain the discretion to correct such an error but will do so “only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (quoting Olano, 507 U.S. at 732) (internal quotation marks omitted).
In response, the government concedes that the magistrate judge committed plain error in failing to advise Lockhart of his correct sentencing exposure. However, the government contends that this error did not affect Lockhart‘s substantial rights, because he has failed to show a “reasonable probability” that he would not have pleaded guilty if the court had advised him of his correct sentencing range. See United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). The government also asserts that the Supreme Court‘s decision in Rehaif does not require that Lockhart‘s conviction be vacated.
In addressing these arguments, we first consider the magistrate judge‘s failure to advise Lockhart of the increased sentence he faced due to his potential ACCA eligibility. Both parties aver, and we agree, that the first two prongs of plain error review on this issue are satisfied. Under
And even if a district court is not certain whether a defendant will qualify for an enhanced sentence under the ACCA, the court nevertheless must “anticipate the possibility and explain to [the defendant] the sentence that would be applicable if he had prior qualifying convictions.” United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008); see also Massenburg, 564 F.3d at 343 (error was plain when defendant was not advised of potential ACCA sentence before pleading guilty). As the Supreme Court has explained:
If the judge told the defendant that the maximum possible sentence was 10 years and then imposed a sentence of 15 years based on ACCA, the defendant would have been sorely misled and would have a ground for moving to withdraw the plea.
United States v. Rodriquez, 553 U.S. 377, 384 (2008). Such erroneous sentencing information given during a Rule 11 colloquy cannot be cured by contrary information later contained in a PSR. United States v. Goins, 51 F.3d 400, 404 (4th Cir. 1995).
To establish that a Rule 11 error affected his substantial rights under the third prong of plain error review, a defendant bears the burden to show “a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. Although the reasonable probability standard is a demanding one, a defendant need not “prove by a preponderance of the evidence that but for error things would have been different.” Id. at 83 n.9. Instead, a defendant must “satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is ‘sufficient
In Massenburg, 564 F.3d 337, we applied this “whole record” prejudice inquiry to the same error presented here, namely, the district court‘s failure to advise a defendant of his potential exposure to an enhanced sentence under the ACCA. And, as here, the defendant‘s PSR included a statement that his criminal history qualified him to receive a sentence of 180 months to life imprisonment. Id. at 340. Had he pleaded guilty without the ACCA designation, Massenburg faced a statutory maximum of 120 months’ imprisonment, and a guidelines range of between 77 and 96 months.1 Applying the heightened statutory and guidelines ranges imposed by the ACCA, the district court sentenced Massenburg to a term of 210 months’ imprisonment. Id. at 339.
Despite this significant increase in his sentence, we held under plain error review that Massenburg had not shown that the Rule 11 error affected his substantial rights. 564 F.3d at 346. After considering the entire record, we emphasized several facts indicating that the error had not affected Massenburg‘s decision to plead guilty: (1) Massenburg had not made any “statements on the record . . . suggesting that [he] would not have pleaded guilty if the district court had properly informed him of the sentencing exposure that he faced“; (2) Massenburg had not moved to withdraw his guilty plea after learning from the PSR that he could be sentenced under the ACCA; and (3) the parties did not dispute that the evidence of Massenburg‘s guilt was “strong.” Id. at 343-44.
Critical to our analysis was the fact that Massenburg “presented no evidence suggesting that the [error] affected his decision to plead.” Id. at 346 (emphasis added). Given this “absence of any evidence in the record” supporting Massenburg‘s claim of prejudice, we concluded that he had not satisfied his burden to show that there was a “reasonable probability” that he would not have pleaded guilty had he been advised properly of his sentencing exposure. Id. at 339, 343-46; see Dominguez Benitez, 542 U.S. at 76.
With this precedent in mind, we turn to consider the facts in the record before us to determine whether Lockhart has shown a reasonable probability that he would not have entered his guilty plea in the absence of the erroneous information he received during the Rule 11 colloquy. Like Massenburg, Lockhart did not object to the Rule 11 error in the district court. Nor did he seek to withdraw his guilty plea after learning of his ACCA exposure. And, like most defendants who plead guilty, the government‘s evidence against Lockhart indisputably was strong.
Nevertheless, the magistrate judge‘s failure to inform Lockhart of the correct sentencing range was an obvious and significant mistake. Such an error undermines the very purpose of Rule 11 that a defendant be fully informed of the nature of the charges against him and of the consequences of his guilty plea. See Massenburg, 564 F.3d at 346; Hairston, 522 F.3d at 340-41. As a result of this error, Lockhart had every reason to think after the plea hearing that he would receive a sentence within the stated statutory range of between zero and 120 months’ imprisonment, with an advisory guidelines range of between 46 and 57 months.
Additionally, it was reasonable for Lockhart to think that he might receive a sentence on the low end of his 46 to 57-month guidelines range, because his prior criminal history was limited to offenses committed within a short time frame while he was a juvenile. See
Lockhart‘s “designation as an armed career criminal, however, completely changed the sentencing calculus” in several notable ways. Hairston, 522 F.3d at 341. First, as discussed above, the ACCA substantially increased Lockhart‘s sentencing exposure, a crucial consideration for a defendant considering whether to plead guilty. Instead of facing a statutory range of between zero and 120 months’ imprisonment, Lockhart faced a minimum sentence of 180 months and a maximum sentence of life imprisonment.
Second, unlike the sentencing considerations present in Massenburg, the 180-month statutory minimum fixed by the ACCA severely restricted any benefit Lockhart could have received by pleading guilty. As explained above, Lockhart expected to receive an adjustment for acceptance of responsibility due to his guilty plea, reducing the low end of his guidelines range by 17 months, from 63 to 46 months, a 27% reduction. However, due to the ACCA‘s 180-month mandatory minimum, the acceptance of responsibility adjustment only reduced the bottom of his guidelines range by eight months, from 188 to 180 months, a 4.2% reduction.2 Notably, this reduction in benefit was far greater than the detrimental impact resulting from the ACCA enhancement in Massenburg. There, because of Massenburg‘s more extensive criminal history, he received about a 23% reduction of the bottom of his guidelines range due to his acceptance of responsibility, both with and without the ACCA enhancement.
There is no evidence in the present record that Lockhart obtained any benefit as a result of his decision to plead guilty other than the acceptance of responsibility adjustment to his guidelines calculation. Lockhart was charged with a single count under Section 922(g), and, thus, the government did not dismiss any additional charges in return for Lockhart‘s agreement to plead guilty. Accordingly, once designated an armed career criminal, the benefit Lockhart received from pleading guilty was an eight-month reduction of the bottom of his guidelines range. To reiterate, instead of 46 months at the low end of his guidelines range, Lockhart faced a non-negotiable 180-month minimum with the ACCA designation. This statutorily imposed minimum also precluded Lockhart from
requesting a downward variance based on his youth at the time he committed
Rather than accepting a plea with little benefit, Lockhart could have exercised his right to require the government to prove at trial all the elements of the offense beyond a reasonable doubt. And importantly, unlike counsel for Massenburg, Lockhart‘s appellate counsel has represented to this Court that if we vacate Lockhart‘s guilty plea, Lockhart will proceed to trial in the district court. Cf. Massenburg, 564 F.3d at 343 (“Even on appeal, Massenburg has not alleged that he would have gone to trial in the absence of the district court‘s error.“). Thus, considering the totality of the circumstances relevant to Lockhart‘s potential sentence, we conclude that the required warning about his ACCA exposure would have had a significant effect on his “assessment of his strategic position.”3 Dominguez Benitez, 542 U.S. at 85.
We find no merit in the government‘s contention that the impact of this Rule 11 error is rendered doubtful by defense counsel‘s eleventh-hour statement to the district court that Lockhart knew about his ACCA designation. Defense counsel made this claim at the end of the sentencing hearing after conferring with the government‘s counsel. We have no way of evaluating the credibility of defense counsel‘s statement. Nor can we assess the substance of any alleged conversation or whether Lockhart understood his ACCA exposure as a result. The district court did not ask counsel any clarifying questions, acknowledge the Rule 11 error, or seek to confirm counsel‘s allegation with Lockhart himself. We thus conclude that counsel‘s statement is minimally probative on the question of prejudice.
We similarly give little weight to the government‘s description of Lockhart‘s potential sentencing exposure at the arraignment hearing in this case. Lockhart‘s counsel waived a formal reading of the indictment. While advocating for Lockhart‘s pretrial detention, the government‘s counsel stated that the ACCA enhancement “might indeed” apply to Lockhart, while acknowledging that Lockhart‘s criminal history had not yet been computed. The government also noted that Lockhart‘s criminal history consisted of a single consolidated judgment, which might or might not qualify as multiple ACCA predicates. Given the government‘s assertion at the plea hearing three months later that Lockhart faced a 10-year maximum, we think the government‘s ambiguous reference at the arraignment hearing plainly was insufficient to provide Lockhart substantive notice of his ACCA exposure.
Lockhart‘s contention of prejudice is strengthened further by the Supreme Court‘s decision in Rehaif, 139 S. Ct. 2191, an intervening change in the law relevant to the validity of Lockhart‘s guilty plea under Section 922(g).4 In Rehaif, the Supreme Court held that, to obtain a conviction under Section 922(g), the government “must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 2200. The Court‘s holding in Rehaif abrogated the prior precedent of this Circuit, which did not require proof of a defendant‘s knowledge that he belonged to the relevant category. See United States v. Langley, 62 F.3d 602, 604-06 (4th Cir. 1995), abrogated by Rehaif, 139 S. Ct. 2191.
At the time Lockhart entered his plea, no one in the courtroom, including Lockhart, his counsel, the government, or the magistrate judge, understood the essential elements of the Section 922(g) offense. See Bousley v. United States, 523 U.S. 614, 618-19 (1998); see also
essential elements of the offense to which he pleads guilty is rooted in fundamental principles of due process. See Bousley, 523 U.S. at 618-19; Henderson v. Morgan, 426 U.S. 637, 644-45 (1976). Given the wholesale misunderstanding of the law at the time of his plea, Lockhart argues that his guilty plea was involuntary and must be vacated. See Bousley, 523 U.S. at 618-19; Henderson, 426 U.S. at 644-45.
The government concedes, and we agree, that the magistrate judge plainly erred in accepting Lockhart‘s guilty plea based on this pre-Rehaif understanding of the law. See Henderson v. United States, 568 U.S. 266, 268-69 (2013) (question whether an error is “plain” is determined based on the law at the time of appeal, not at the time the district court acted). The government argues, however, that we should require Lockhart to show he was prejudiced by the Rehaif error pursuant to our traditional plain error review, because the claim was not preserved in the district court. See Olano, 507 U.S. 725.
We need not, and do not, decide today whether a standalone Rehaif error requires automatic vacatur of a defendant‘s plea, or whether such error should be reviewed for prejudice under Olano, because Lockhart has satisfied the more demanding Olano standard based on the two errors before us. Therefore, given the procedural
Before a defendant enters a plea of guilty, he is entitled to understand the nature of the offense to which he is admitting guilt and the consequences of his plea. See Bousley, 523 U.S. at 618-19; Hairston, 522 F.3d at 340;
III.
For these reasons, we vacate Lockhart‘s plea and conviction, and remand the case to the district court for further proceedings.
VACATED AND REMANDED
WILKINSON, Circuit Judge, concurring:
I am pleased to concur in Judge Keenan‘s fine opinion in this case. The unusual circumstances here persuade me that the proper remedy is to vacate Lockhart‘s guilty plea. Under the facts presented, I believe the majority has rightly found “a reasonable probability that, but for the error, [Lockhart] would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).
I.
There are many reasons why guilty pleas are ordinarily deemed final in our criminal justice system. See United States v. Davila, 569 U.S. 597, 608 (2013) (underscoring “the particular importance of the finality of guilty pleas“) (quoting Dominguez Benitez, 542 U.S. at 82). For one, a guilty plea is uniquely susceptible to buyer‘s remorse. A veritable barrage of what-ifs will naturally befall a defendant biding his time in the penitentiary—not least of which is the possibility, however unrealistic, that the jury may have found him innocent. Without a meaningful concept of finality, courts would find themselves confronting the reopening of countless cases.
A second reason for finality is that guilty pleas inure to the benefit of defendants and prosecutors alike. From the defendant‘s point of view, pleas offer an option of measured leniency—valuable leverage in negotiations for a lighter sentence or a dismissal of charges. Defendants can dangle before beleaguered prosecutors the tempting prospect of dispensing with the delays and burdens of a trial. And the finality of a plea ironically can protect defendants from themselves, and the harsher consequences that may await the rescission of a beneficial bargain. As for the government, the system of guilty pleas is “indispensable in the operation of the modern criminal justice system,” Dominguez Benitez, 542 U.S. at 83. Pleas afford the government the ability to seek prompt resolution of cases through a regularized process that has its share of critics, to be sure, but one that bears the earmarks of
In short, courts should honor the terms of these deals much as they do a contract. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (observing that “plea bargains are essentially contracts“) (internal citation omitted). As with any contract, plea negotiations come freighted with external pressures, among them the relative strength of the government‘s case. And guilty pleas, like any other binding agreement, rest on a tradeoff between present certainty and future risk. Parties are willing to gain the surety of today in exchange for foregoing the promise and hazards of tomorrow. The stability of law rests in no small part on the sanctity of contract, and these bargains warrant respect.
In keeping with these observations, I do not lightly join the majority in vacating Lockhart‘s plea. But the errors in this case, as I see it, warped two inputs central to a defendant‘s decision to waive or to exercise his right to trial: his sentencing exposure and the strength of the government‘s case against him. Taking the first, the majority rightly acknowledges that a defendant‘s sentencing exposure is “a crucial consideration for a defendant considering whether to plead guilty.” Maj. Op. at 10. And the magistrate judge in this case committed plain error under Federal Rule of Criminal Procedure Rule 11 by misadvising Lockhart about this consideration. Lockhart, to wit, was led to believe that he faced a 10-year maximum sentence when he in fact faced a 15-year mandatory minimum with a maximum of life in prison under ACCA. Indeed, once we account for the correct exposures, it is clear that Lockhart gained rather little by pleading guilty. As the majority notes, “once designated an armed career criminal, the benefit Lockhart received from pleading guilty was an eight-month reduction of the bottom of his guidelines range.” Maj. Op. at 11.
While the PSR with which Lockhart confirmed his familiarity at sentencing corrected this error, the district court never spelled out to Lockhart the magistrate judge‘s mistake. See J.A. 35-53. In view of the overall strength of the government‘s case, however, which included the fact that the police saw him trying to dispose of the Glock nine-millimeter pistol under the car seat as they approached, it is difficult to believe that this error by itself affected Lockhart‘s decision not to go to trial. In other words, it should not by itself entitle Lockhart to relief. For the “burden should not be too easy” for defendants on plain-error review, Dominguez Benitez, 542 U.S. at 82, else they could sandbag trial courts by pointing out errors long after the opportunity to take curative action has passed. A reviewing court, then, “must look to the entire record, not to the plea proceedings alone,” in assessing whether it is reasonably probable that a defendant would have gone to trial absent the error. Id. at 80.
The majority‘s probing review of the record is faithful to that instruction: It identifies a “possible defense[] that appear[s] from the record,” which bears on the “overall strength of the Government‘s case“—namely, Lockhart‘s Rehaif defense to his § 922(g) felon-in-possession charge. Id. at 85. In Rehaif v. United States, 139 S. Ct. 2191 (2019), the Supreme Court held that a felon-in-possession charge under § 922(g) requires the government to prove not only that a defendant knew he possessed a firearm, but also that he knew his status as a felon when he possessed it, id. at 2194. On this front, Lockhart argues that he had little reason to know, as the statute requires, that he
I am skeptical of this assertion for several reasons. First, Lockhart‘s allocution statement seems to admit that he knew he was a felon when he committed the charged crime. J.A. 47. Second, Lockhart who claims no knowledge of his felon status spent well over a year in prison for his prior state convictions. Again, if Lockhart‘s Rehaif defense was all there was, that alone in my view would not have indicated a reasonable probability that Lockhart would have gone to trial absent the error. As with the Rule 11 error, the presence of this Rehaif defense would not by itself entitle Lockhart to relief.
I agree with the majority opinion, however, that “in the aggregate” these errors “‘are sufficient to undermine confidence in the outcome of the proceeding.‘” Maj. Op. at 15 (quoting Domingez Benitez, 542 U.S. at 83). Whereas neither error considered in isolation would, as I see it, entitle Lockhart to relief under the reasonable probability standard, the two factors in combination are more troubling than either standing alone. And that is not all. As precedent requires, see Dominguez Benitez, 542 U.S. at 83, the record contains affirmative evidence that this proceeding, taken as a whole, affected the defendant‘s calculus.
On that score, Lockhart’s counsel exhibited “starkly odd behavior” in conferring with the Assistant United States Attorney and volunteering to the district court that Lockhart knew about his potential ACCA enhancement—after the sentencing hearing had already concluded. Lockhart, 917 F.3d at 268 (Floyd, J., concurring in the judgment). While Lockhart’s counsel may have been acting in an effort to protect what he saw as a beneficial plea agreement, the fact that Lockhart never had the opportunity during the pendency of sentencing proceedings to personally confirm or deny his knowledge of the ACCA enhancement is, when combined with the earlier confusion, problematic. See J.A. 35-53. A few days later, Lockhart filed a pro se notice of appeal requesting a new lawyer. Because Lockhart’s case never went to trial, this request may well have related to miscommunications surrounding Lockhart’s guilty plea. And, if construed in Lockhart’s favor, it suggests that Lockhart’s counsel, as well as the magistrate judge, gave him bad advice.
In short, too much went wrong here. Plea and sentencing proceedings need not be styled to perfection, but they must be fair. See
The majority is right to say that “the reasonable probability standard is a demanding one” for a defendant wishing to upset the finality of a guilty plea. Maj. Op. at 7. But that standard does not leave us bereft of the ability to correct serious misfires in the plea bargaining process. Because this case arises on direct review, and because the particular circumstances surrounding the intervening Rehaif decision and the original Rule 11 error are enough in combination to establish a “reasonable probability” under Dominguez Benitez, I believe this is one of those unusual cases where vacating a defendant’s plea is appropriate.
WYNN, Circuit Judge, concurring:
I concur fully in the majority opinion’s thorough analysis of the district court’s failure to properly advise Lockhart of the potential sentence he faced under the Armed Career Criminal Act. I also join the majority’s conclusion that “the magistrate judge plainly erred in accepting Lockhart’s guilty plea based on [a] pre-Rehaif understanding of the law.” Maj. Op. at 15 (referring to Rehaif v. United States, 139 S. Ct. 2191 (2019)). However, the majority does not—but should—take this opportunity to answer a central question that Rehaif left unaddressed: What standard should courts use to decide whether to vacate a conviction tainted by Rehaif error?
As the majority notes, at the third step of the Olano inquiry, a defendant must show that the error affected his substantial rights. Maj. Op. at 5-6 (citing United States v. Olano, 507 U.S. 725, 732 (1993)). “[I]n most cases,” for an error to have affected substantial rights under
The majority explicitly avoids this question by finding sufficient prejudice in the Rehaif error combined with the erroneous sentencing information Lockhart received during the Rule 11 colloquy. In effect, the majority opinion adds very little to the jurisprudence interpreting Rehaif because Lockhart was prejudiced by the Rule 11 error standing alone. The opinion should go further and evaluate whether, and on what basis, the Rehaif error provides an alternative justification for vacating Lockhart’s guilty plea and conviction.
Courts will need to decide what defendants must show in order to obtain relief under Rehaif—that is, if defendants who can demonstrate Rehaif errors on plain-error review can automatically satisfy the third prong of Olano, or if such defendants must show prejudice arising from the error. Rather than leave this important issue to a future panel, in my view, this en banc Court should confront it. The question is squarely presented in this case. The Court should not save for another day what it can do now. Instead, the Court should take
RUSHING, Circuit Judge, with whom Judges NIEMEYER, AGEE, and QUATTLEBAUM join, dissenting:
I respectfully dissent. This Court’s authority to vacate a guilty plea and conviction is strictly circumscribed where, as here, the defendant did not move to withdraw his guilty plea in the district court or attempt to bring the errors complained of on appeal to the district court’s attention in any fashion. The limits on our authority are not discretionary—they are imposed by the Federal Rules of Criminal Procedure, Supreme Court decisions, and precedent from this Court. In my view, faithful application of those limits requires affirmance. Lockhart has not satisfied his burden to show that the Rule 11 error or the Rehaif error, separately or combined, affected his substantial rights.
I.
If a defendant believes that an error has occurred to his detriment in a federal criminal proceeding, “he must object in order to preserve the issue.” Puckett v. United States, 556 U.S. 129, 134 (2009); see
To establish the prejudice required at the third step of this analysis, “a defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error [in accepting his plea] under Rule 11, must show a reasonable probability that, but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. Relief on appeal from a guilty plea is “difficult to get” under this standard, “as it should be.” Id. at 83 n.9. By design, this standard “demand[s]
II.
Lockhart pleaded guilty to possession of a firearm by a felon, in violation of
A.
Beginning with the Rule 11 error, the Court must consider the entire record to determine whether Lockhart has shown a reasonable probability that, but for the magistrate judge’s failure to correct the Government’s misstatement of Lockhart’s sentencing exposure during the plea colloquy, he would not have pleaded guilty. See Dominguez Benitez, 542 U.S. at 83. The Court is not at liberty to “upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded” absent the error; rather, the Court must “look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct. 1958, 1967 (2017). As the Supreme Court has instructed, the Court should consider evidence that Lockhart was correctly informed elsewhere about his sentencing exposure. See Vonn, 535 U.S. at 75 (considering evidence that the defendant was informed of his right to trial counsel before the plea proceeding); Dominguez Benitez, 542 U.S. at 84–85 (requiring consideration of “other facts that may have borne on [the defendant’s] choice regardless of any Rule 11 error”).
The presentence report—prepared after Lockhart pleaded guilty—correctly advised Lockhart that, under ACCA, he was subject to a mandatory minimum of 15 years in prison and a maximum of life. J.A. 80–82, 86. The presentence report specifically noted that, during the plea hearing, Lockhart had been misinformed that his maximum sentencing exposure was 10 years in prison when in fact his mandatory minimum sentence was 15 years. J.A. 87. Lockhart received the presentence report and filed objections, including objecting to the application of ACCA on the grounds that he was a juvenile at the time of the predicate offenses and that the offenses were part of one continuous string of robberies. J.A. 63–64. But Lockhart never objected to the application of ACCA on the ground that he had been misinformed about his sentencing exposure at the time he pleaded guilty. Nor did Lockhart attempt to withdraw his guilty plea after the presentence report correctly informed him of his sentencing range, despite his right to withdraw his plea before sentencing for “a fair and just reason.”
At sentencing, Lockhart was again correctly informed about the mandatory minimum sentence and expressed no surprise or confusion. To the contrary, he confirmed that he had read the presentence report, reviewed it with his attorney, and understood it. The district court sentenced Lockhart to the mandatory minimum of 15 years in prison pursuant to ACCA. After the court pronounced the sentence, Lockhart’s counsel asked to confer with the Government’s attorney. After he did so, Lockhart’s counsel stated: “I’m going back to his plea colloquy. He didn’t plead to [ACCA;] it was not on the Bill of Indictment. But I went over it beforehand. So I just want to put it on the record that he was fully aware of that. I just thought about it.” J.A. 51–52. That statement is consistent with the record, and no one has questioned counsel’s credibility. But see Maj. Op., supra, at 13 (“We have no way of evaluating the credibility of defense counsel’s statement.”). Lockhart did not dispute the accuracy of his attorney’s representation at sentencing, nor has he disputed it on appeal.1 The arraignment, the presentence report, defense counsel’s statement, and the absence of any adverse response from Lockhart are powerful indicators that Lockhart would have persisted in his guilty plea even if he had been given correct information about his potential sentencing exposure during the plea hearing.
The Court should also consider “the overall strength of the Government’s case and any possible defenses that appear from the record,” as the Supreme Court
mandatory minimum. Cf. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018) (“Any amount of actual jail time is significant . . . .” (internal quotation marks and alteration omitted)).
The majority correctly observes that that the most closely analogous precedent is our decision in United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009). Maj. Op., supra, at 8. Massenburg was also misinformed at his plea hearing that he faced a ten-year maximum prison sentence for pleading guilty to being a felon in possession of a firearm when, in fact, ACCA applied and subjected him to a 15-year mandatory minimum. As here, the presentence report included the correct ACCA calculation. The district court sentenced Massenburg to 210 months in prison. On appeal, we concluded that Massenburg had failed to demonstrate prejudice under plain-error review. As the majority correctly summarizes, we emphasized several facts, each of which applies equally here: “(1) Massenburg had not made any statements on the record suggesting that he would not have pleaded guilty if the district court had properly informed him of the sentencing exposure that he faced; (2) Massenburg had not moved to withdraw his guilty plea after learning from the [presentence report] that he could be sentenced under the ACCA; and (3) the parties did not dispute that the evidence of Massenberg’s guilt was strong.” Maj. Op., supra, at 8 (internal quotations marks and alterations omitted). This Court’s decision in Massenburg compels the conclusion that Lockhart also has not carried his burden to demonstrate prejudice.
Indeed, Lockhart’s case for prejudice is even weaker than Massenberg’s. In addition to the shared facts listed above, Lockhart was correctly informed at his arraignment—before pleading guilty—that ACCA’s increased sentencing range could apply to him. And Lockhart’s attorney—who attended the arraignment—later represented to the district court in Lockhart’s presence that counsel “went over [ACCA] beforehand” with Lockhart and Lockhart “was fully aware” that ACCA’s enhanced penalty may apply. J.A. 51–52. In light of Massenburg, Lockhart surely has failed to show “a reasonable probability that, but for the error [at his plea hearing], he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83.
The majority attempts to distinguish Massenburg and finds prejudice from the Rule 11 error based on the fact that “ACCA substantially increased Lockhart’s sentencing exposure” and “severely restricted any benefit Lockhart could have received by pleading guilty.” Maj. Op., supra, at 10–11. Of course, ACCA “substantially increased” Massenburg’s sentencing exposure too, and it typically will—that is its purpose. Compare
B.
Moving to the Rehaif error, I cannot conclude that Lockhart has shown that this error “‘affected the outcome of the district court proceedings.’” Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 734). I assume, as the majority does, that the Rehaif error is subject to plain-error review. See Maj. Op., supra, at 15. Indeed, “while Rehaif’s impact is only beginning to be addressed, courts have thus far unanimously applied a plain error standard in addressing convictions obtained before that decision.” United States v. Balde, 943 F.3d 73
92 (2d Cir. 2019). Despite purporting to apply plain-error review, however, the majority does not identify any additional prejudice it believes Lockhart suffered from the Rehaif error. See Maj. Op., supra, at 15. I would hold that Lockhart has not carried his burden.
The Court must again evaluate the error against the entire record. See Dominguez Benitez, 542 U.S. at 83; Vonn, 535 U.S. at 59. Lockhart admitted in the factual basis for his plea that he had been convicted of an offense punishable by more than one year in prison and that his firearm rights had not been restored. J.A. 21. The record shows that in 2006, Lockhart pleaded guilty in state court to six counts of robbery with a dangerous weapon and four counts of conspiracy to commit robbery with a dangerous weapon. J.A. 72–73; S.J.A. 1–5. The “transcript of plea” from the state court indicates that each of these offenses is a felony and the “maximum punishment” for each is more than one
This evidence that Lockhart knew he had been convicted of a crime punishable by imprisonment exceeding one year when he possessed the firearm, see
C.
Having concluded that Lockhart has failed to show a reasonable probability that he would not have pleaded guilty but for the Rule 11 error or the Rehaif error, I also do not find his case for prejudice to be strengthened by combining those errors. “Errors are commonplace, . . . and our affection for procedural perfection cannot operate to the detriment of our commitment to other, equally important, principles of adjudication.” Massenburg, 564 F.3d at 345. Those principles include the limits on our power as a reviewing court to remedy unpreserved errors. Because Lockhart has not shown that the errors in this case affected the outcome of the proceedings, this Court “ha[s] no authority to correct [them].” Olano, 507 U.S. at 741. I would affirm.