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SCOTUS to address how plain error doctrine applies to defective plea colloquy

United States v. Gary, No. 20-444, cert granted 1/8/21; SCOTUSblog page

Question presented:

Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.

This is a companion to Greer. Gary pled guilty to 2 counts of felon in possession of contrary to 18 U.S.C. §922(g)(1) and §924(a)(2). During his plea colloquy, the court did not advise Gary that the government would need to prove that he was aware that he was a felon when he possessed a firearm. At the time, this was not a requirement.

Gary appealed his sentence, but not his conviction. While his appeal was pending, SCOTUS decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that the government must prove both that the defendant knew he possessed a firearm and that he knew he had the relevant status.

The 4th Circuit held that a standalone, unpreserved Rehaif error requires automatic vacatur of a defendant’s guilty plea under the plain error doctrine. That doctrine permits an appellate court to review a forfeited error where: (1) an error in fact occurred; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation fo judicial proceedings. United States v. Olano, 507 U.S. 725 (1993).

The 4th Circuit further held that vacatur is necessary even where the defendant cannot show a reasonable probability that he would have gone to trial if the trial court had advised him correctly at the plea colloquy. This type of error is structural, and thus the defendant does not have to prove prejudice.

The Solicitor General argues that pleas to violations of 18 U.S.C. 922(g)(1) and 924(a)(2) are among the most common sources of criminal convictions in the federal system. If this decision is allowed to stand it will result in vacatur of a substantial number of convictions in the 4th Circuit.

Wisconsin’s felon-in-possession statute is different from the federal statute. See our post on Rehaif and Wisconsin law here. However, SCOTUS’s decision may influence how Wisconsin courts apply our plain error doctrine to defective guilty pleas.

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