Structural Error: Felon in Possession of a Weapon

The 4th Circuit made an important ruling regarding structural error. In United States vs. Michael Gary, No. 18-4578. The Court has broken with the other circuits that have ruled on whether a person could be found guilty of federal felon in possession of firearm charges without the additional offense element of whether "he knew he had the relevant status when he possessed [the firearm]."

History of Gary Case

Gary was arrested after a traffic stop for driving on a suspended license. Another person, Dixon, was also in the car. Officers recovered a loaded firearm and marijuana. Gary admitted to possession of both the gun and the marijuana.

Five months later Gary and Dixon were encountered by officers outside a motel room. The officers detected the odor of marijuana and Gary and Dixon entered the back seat of a vehicle. The men consented to a search of the vehicle. The officers found marijuana and a firearm.

Gary claimed the gun was his and he used it for protection. He had been found guilty of a felony before both of these events. Gary was indicted on federal charges of felon in possession of a firearm. He pled guilty.

Elements of the Crime

The court informed Gary of the elements of the crime that the government would have to prove. Those were:

(1) that Gary had “been convicted of a crime punishable by imprisonment for a term exceeding one year;”
(2) that he “possessed a firearm;”
(3) that the firearm “travelled in interstate or foreign commerce;” and
(4) that he “did so knowingly; that is that [he] knew the item was a firearm and [his] possession of that firearm was voluntarily [sic] and intentional.”

Gary was not informed that an additional element of the offense was that “he knew he had the relevant status when he possessed [the firearm].” Gary was sentenced to 84 months overall. Gary appealed, filing a letter pursuant to Federal Rule of Appellate Procedure 28(j). He alleged that Rehaif was relevant to his appeal.

Gary asserted that Rehaif…, “would likely impact his case because he pled guilty to two counts of possession of a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) without being informed, as required by Rehaif, that an element of his offense was that he knew his prohibited status at the time he possessed the firearm.”

Plain Error Analysis

The court used the plain error standard because the Rehaif issue was not brought up in the district court.

“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…[in addition, the court] retain[s] 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.’”

Gary argued that Rehaif itself satisfied the first two prongs of the Plain Error Analysis. The government conceded that the district court committed plain error but that “omission of this element from the plea colloquy did not affect Gary’s substantial rights because there is overwhelming evidence that he knew of his felony status prior to possessing the firearms.”

Is This a Structural Error?

The Fourth Circuit indicated that the cases that the government cited were “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 constitutional error that rendered his guilty plea invalid. Consequently, no circuit has yet addressed the question of whether this error is a structural error that affects the substantial rights of the defendant.”

The court determined that the first two prongs were met (that an error occurred and that the error was plain) because the Fourth Circuit had recently decided Lockhart, 947 F.3d 187 (4th Cir. 2020), holding that it was plain error to accept a guilty plea without the knowledge of one’s prohibited status serving as a required element of a § 922(g) offense.

In finding that the error affected his substantial rights, the court noted that a defendant must “show a reasonable probability that, but for the error, he would not have entered the plea . . . [and] satisfy the judgment of the reviewing court, informed by the entire record, that the probability of a different result is ‘sufficient to undermine the confidence in the outcome’ of the proceeding.”

The Supreme court has also 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.” The court went on to note “a guilty plea is constitutionally valid only to the extent it is ‘voluntary’ and ‘intelligent.’” In other cases, the Supreme Court has held that a plea cannot be voluntary unless the defendant received “real notice of the true nature of the charge against him.”

The Fourth Circuit has also noted that Gary’s argument was 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 . . . .” This is what is known as a structural error.

Three Structural Rationales

The court went on to note that “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.’” There is a limited class of errors that have been deemed structural. The Supreme Court has determined that there are three broad rationales for identifying errors as structural:

“‘[First, t]he 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.’”

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.’”

“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…, or in the failure to give a reasonable doubt instruction.

Structural Error in Gary

The Fourth Circuit held that under each of these three rationales that the district court’s error in Gary’s case was structural.

The first rationale was met because “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 determine the best way to protect his liberty.”

The second rationale was met because “[the court found] that the district court’s error [was] structural because the deprivation of Gary’s autonomy interest under the Fifth Amendment due process clause has consequences that ‘are necessarily unquantifiable and indeterminate,’ … rendering the impact of the district court’s error simply too difficult to measure.

Finally, the court determined that “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.”

In Conclusion

As a result of those findings, the court determined that the district court’s error was structural and affected Gary’s substantial rights, meeting the third prong.

The court then proceeded to the fourth prong. The court can grant relief only when “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” The court found that because life and liberty were at stake the court should could not “allow a district court to accept a guilty plea from a defendant who has not been given notice of an element of the offense in violation of his Fifth Amendment due process rights” because that “would surely cast doubt on the integrity of the judicial process.” Because of that the court found that the constitutionally invalid guilty plea “seriously affects the fairness, integrity or public reputation of judicial proceedings.”

The Fourth Circuit VACATED Gary’s plea and convictions and remanded the case back to the district court for further proceedings. No. 18-4578