United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 1999 Decided January 25, 2000
No. 98-3120
United States of America,
Appellee
v.
Wilbert Jerome Drew,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00471-01)
Howard B. Katzoff, appointed by the court, argued the
cause for the appellant.
Florence Pan, Assistant United States Attorney, argued
the cause for the appellee. Wilma A. Lewis, United States
Attorney, and John R. Fisher, Assistant United States Attor-
ney, were on brief for the appellee.
Before: Edwards, Chief Judge, Silberman and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Opinion filed by Chief Judge Edwards concurring in the
judgment.
Karen LeCraft Henderson, Circuit Judge: Wilbert J.
Drew pleaded guilty to one count of possession of a firearm
while subject to a court order in violation of 18 U.S.C.
s 922(g)(8). For the first time on appeal Drew argues that
section 922(g)(8) is unconstitutional under the Second and
Fifth Amendments to the United States Constitution. Drew
also argues that the district court made several sentencing
errors: (1) in finding under the United States Sentencing
Guidelines (U.S.S.G. or Guidelines) that Drew's relevant con-
duct included attempted first degree murder; (2) in applying
the cross-reference provisions, sections 2K2.1 and 2X1.1, of
the Guidelines; (3) in violating his right to due process by
sentencing him based on attempted first degree murder
supported by hearsay evidence; and (4) in applying the two-
level enhancement for restraint of victim pursuant to U.S.S.G.
s 3A1.3. We conclude that, because of his guilty plea, Drew
waived his right to challenge the constitutionality of 18 U.S.C.
s 922(g)(8). We further conclude that the district court
properly applied the Guidelines' cross-reference provisions
and that Drew's due process challenge to his conviction is
meritless. Because we believe the district court improperly
applied section 3A1.3's two-level enhancement for restraint of
victim, however, we remand for resentencing without the
enhancement.
I.
On December 2, 1997 a grand jury returned a single-count
indictment charging Drew with violation of 18 U.S.C.
s 922(g)(8). Two days later the government filed a thirteen-
count superseding indictment charging inter alia burglary,
kidnapping and violation of a protective order. The charges
arose from Drew's armed forced entry into his estranged
wife's house and his subsequent actions. At the time of the
offense Drew had been married to Renay Short-Drew for
eleven years. He had physically abused her at least four
times by "smacking, hitting, punching [and] kicking" her.
PSR 4.1 On October 14, 1997 Mrs. Drew petitioned the
District of Columbia (District) Superior Court for a civil
protection order (CPO) against Drew and obtained a tempo-
rary protection order pending a hearing. On October 27,
1997 the Superior Court issued a one-year CPO with standard
conditions, using the form used by the Family Division of the
Superior Court. The CPO required Drew to vacate the
family premises and retrieve his belongings therefrom with a
police escort, ordered Drew to stay at least 100 feet away
from his wife and their three children, ordered Drew not to
"assault, threaten, harass or physically abuse" his wife or the
children in any manner and allowed Drew to contact her only
through counsel. Id. Family counseling was also ordered
and was scheduled to begin on November 19, 1997.
On November 2, 1997 Drew telephoned Mrs. Drew at about
2:30 a.m. Distraught, Drew said that he needed help right
away and could not wait until the November 19th family
counseling session. Drew told her that the system had failed
him, everyone was turning their back on him and he was
contemplating suicide. See id. Mrs. Drew suggested he
contact their family doctor. See id. When she told him that
she intended to hang up, he threatened to do something
"drastic." Id. A few minutes later, Drew broke into their
house by shattering a window. Mrs. Drew heard the sounds
of breaking glass and someone running up the stairs. She
locked her bedroom door, grabbed her portable phone and
hid in a closet. She dialed 911 and requested help. While
she was on the telephone with the emergency dispatcher,
Drew broke through the bedroom door and then through the
closet door. He pointed a shotgun in her face and said,
__________
1 "PSR" refers to the amended presentence investigation report.
"A" refers to the Public Appendix and Record Material. "R. Drew
Tr." refers to the grand jury testimony of Renay Short-Drew.
"Szala Tr." refers to the grand jury testimony of Paul Szala, a law
enforcement officer with the District of Columbia Metropolitan
Police Department (MPD).
"Bitch, get up. Get out of this closet." R. Drew Tr. 9. She
pleaded with Drew, saying "Please, please don't shoot me.
Don't kill me. Don't shoot me with the shotgun." Id. When
she attempted to stall by saying that she had to put on her
shoes, Drew declared, "You don't need shoes where you are
going." A 117. At gunpoint, Drew forced his wife to walk
out of the bedroom and into the upstairs hallway. There they
met their 19-year-old son, Tamarkus, and their 15-year-old
son, Jerral. Still pointing the gun at his wife, Drew said,
"Bitch, walk." R. Drew Tr. 10. Drew went down the stairs
in front of Mrs. Drew, continuing to point the shotgun at her,
and told her again to come downstairs. See A 39. Eventual-
ly she walked down the stairs, stopping a few steps from the
bottom. Their two sons also walked downstairs, trying to
talk to Drew. Drew again complained that he was tired, the
system had failed him and he couldn't take it anymore. He
seemed "unfocused" and his "eyes were glazed over." Mrs.
Drew cried out again, "Please don't shoot me." A 118. At
one point, Drew pointed the gun in his wife's face. See R.
Drew Tr. 11. He also pulled the trigger of the gun. See
Szala Tr. 7, 8. Mrs. Drew heard a "tick" or a "pop" but the
gun did not discharge. See R. Drew Tr. 11.2 When the gun
did not discharge, Mrs. Drew and her sons jumped on Drew
and attempted to take the gun away from him. MPD Officer
Paul Szala arrived as they were struggling with Drew and
with his assistance they subdued Drew and Szala placed
Drew under arrest.
The government and defense counsel entered into plea
negotiations. The government initially offered to allow Drew
to plead guilty to two charges--Count One (possession of a
firearm while subject to a court order in violation of 18 U.S.C.
s 922(g)(8)) and an Information charging burglary while
armed--noting that the Guidelines' base offense level for
Count One would "probably be 24." Tr. 5/5/98 at 17. Drew
rejected the offer. The government then offered to let him
__________
2 Forensic testing subsequently established that one of the shells
had been struck by the firing pin, confirming that the trigger had
been pulled. See Szala Tr. 7.
plead guilty to Count One only. Drew first declined and
informed the trial court that he no longer wished to be
represented by his counsel. After an on the record discus-
sion involving the court, all counsel and Drew, Drew's counsel
and Drew agreed to confer again. When the parties ap-
peared in court again, one of Drew's lawyers, Assistant
Federal Defender Gregory William Spencer, advised the
court that, pursuant to a written plea agreement, Drew
wanted to plead guilty to Count One. In exchange for Drew's
guilty plea, the government dismissed all other charges
against him. The plea agreement reserved the government's
right of allocution at Drew's sentencing but provided that the
government would not oppose a three-level reduction in
Drew's offense level for acceptance of responsibility. Spencer
also indicated:
I believe that I was able to review for him the calcula-
tions that we believe would be appropriate in this case. I
believe that I was able to discuss with him the calcula-
tions that we have tried to foresee that the government
may argue, including various reasons for upward depar-
tures and various reasons for downward departures.
Tr. 6/2/98 at 28. Before accepting Drew's guilty plea, the
district court referred to the proffer of facts and informed
Drew that, by pleading guilty, he waived the right to appeal
his conviction but retained the right to appeal an illegal
sentence. Drew agreed with the factual proffer and stated
that he understood he was waiving his right to appeal his
conviction. See Tr. 6/2/98 at 42. The court then accepted
Drew's guilty plea.
On September 28, 1998 the district court sentenced Drew
to 80 months in prison followed by three years of supervised
release. In sentencing Drew pursuant to the Guidelines'
cross-reference provisions for firearm offenses, U.S.S.G.
ss 2K2.1 and 2X1.1, the court applied the base offense level
for attempted first degree murder, added a two-level en-
hancement for restraint of victim under U.S.S.G. s 3A1.3 and
allowed a three-level reduction based on acceptance of re-
sponsibility, resulting in a total offense level of 27 and a
Guidelines range of 70-87 months.
II.
The standard of review applicable to Drew's constitutional
challenge to his conviction is discussed infra. We review the
district court's application of the Guidelines as follows:
"[P]urely legal questions are reviewed de novo; factual find-
ings are to be affirmed unless 'clearly erroneous'; and [the
Court] give[s] 'due deference' to the district court's applica-
tion of the guidelines to facts." United States v. Becraft, 117
F.3d 1450, 1451 (D.C. Cir. 1997) (quotation omitted).
A. Waiver
Drew argues that his conviction should be vacated because
the statute under which he pleaded guilty, 18 U.S.C.
s 922(g)(8), violates the Second and Fifth Amendments to the
United States Constitution. The government responds that,
by pleading guilty, Drew waived his constitutional challenge.
"It is well settled that a voluntary and intelligent plea of
guilty made by an accused person, who has been advised by
competent counsel, may not be collaterally attacked." Bous-
ley v. United States, 523 U.S. 614, 621 (1998) (quotation
omitted). The United States Supreme Court has recognized
one exception to the general rule where the defendant's
claimed right is "the right not to be haled into court at all
upon the felony charges." United States v. Broce, 488 U.S.
563, 574-75 (1989) (quoting Blackledge v. Perry, 417 U.S. 21,
30-31 (1974)); see also Menna v. New York, 423 U.S. 61, 62-
63 n.2 (1975) ("[A] plea of guilty to a charge does not waive a
claim that--judged on its face--the charge is one which the
State may not constitutionally prosecute."). Drew contends
that his constitutional challenge falls within the
Blackledge/Menna exception. We disagree. In United
States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996), we noted the
error in labeling a challenge to the constitutionality of a
statute a jurisdictional issue. In Baucum we did not apply
the Blackledge/Menna exception because Baucum challenged
a sentencing statute. But subsequent cases have made clear
that Drew waived his constitutional challenge to 18 U.S.C.
s 922(g)(8) because he failed to raise his challenge below.
See United States v. Badru, 97 F.3d 1471, 1476 (D.C. Cir.
1996) ("[B]ecause Ishmeal Badru's facial constitutional chal-
lenge to the 'school-yard statute,' ... is raised for the first
time on appeal, it is barred by" Baucum, 80 F.3d 539)
(internal citation omitted.); see also United States v. David,
96 F.3d 1477, 1482 (D.C. Cir. 1996) ("We do not reach David's
Commerce Clause challenge to his 18 U.S.C. s 922(g)(1)
conviction because he failed to raise the claim in the lower
court.").
B. Attempted First Degree Murder
Drew argues that no evidence established that he pulled
the shotgun trigger while pointing the gun at his wife.
Because the district court's determination that Drew attempt-
ed to commit first degree murder is a factual finding, we
review it for "clear error" and accord it "due deference." See
id.3 Mrs. Drew's grand jury testimony supports the finding
that Drew attempted to murder her:
[Prosecutor]: But what I do need to ask you, you told me
that at one point your husband had the gun pointed at
you, and you heard the trigger?
[Mrs. Drew]: Yeah.
R. Drew Tr. 11. Furthermore, Officer Szala testified before
the grand jury that Mrs. Drew told him that Drew had
pointed the gun at her face and pulled the trigger. See Szala
Tr. 7-8. At sentencing Drew did not contest that the gun
was pointed at Mrs. Drew when he pulled the trigger. Also
at sentencing the government introduced in evidence the
shotgun recovered from the Drew residence the night of the
offense as well as the indented shell. Based on this evidence,
the sentencing court did not err, at least not clearly so, in
finding that Drew "took sufficiently premeditated actions to
__________
3 The district court noted that although sentencing facts must be
proved by a preponderance of the evidence, the findings here had
been proved "beyond a reasonable doubt." United States v. Drew,
23 F. Supp. 2d 39, 43 n.2 (D.D.C. 1998).
constitute attempted first degree murder." Drew, 23
F. Supp. 2d at 44.
C. Cross-Reference Provisions
Under the Guidelines, the sentence for a violation of 18
U.S.C. s 922(g) is calculated by reference to section 2K2.1,
entitled "Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition." Section 2K2.1 is divided into
three subsections: subsection (a) assigns the base offense
level for firearms offenses; subsection (b) lists specific of-
fense characteristics to increase or decrease the base offense
level; and subsection (c) is a cross-reference provision, which,
as an alternative to subsections (a) and (b), assigns a poten-
tially higher base offense level to a defendant who uses or
possesses a firearm in connection with the commission or
attempted commission of another crime. Section 2K2.1 pro-
vides in relevant part:
(a) Base Offense Level (Apply the Greatest):
....
(6) 14, if the defendant ... is a prohibited person;
....
(b) Specific Offense Characteristics
....
(4) If any firearm was stolen, or had an altered or
obliterated serial number, increase by 2 levels.[4]
(5) If the defendant used or possessed any firearm or
ammunition in connection with another felony offense
..., increase by 4 levels.
....
(c) Cross Reference
(1) If the defendant used or possessed any firearm or
ammunition in connection with the commission or at-
tempted commission of another offense ..., apply--
(A) s 2X1.1 (Attempt, Solicitation, or Conspiracy)
in respect to that other offense, if the resulting
__________
4 The shotgun had an obliterated serial number.
offense level is greater than that determined
above.
Section 2X1.1 in turn provides:
(a) Base Offense Level: The base offense level from the
guideline for the substantive offense, plus any adjust-
ments from such guideline for any intended offense
conduct that can be established with reasonable certain-
ty.[5]
....
(c) Cross Reference
(1) When an attempt, solicitation, or conspiracy is
expressly covered by another offense guideline section,
apply that guideline section.
Under section 2K2.1(c), the cross-reference provision, a de-
fendant who uses a firearm to commit or attempt to commit
another crime is assigned the offense level that corresponds
"to that other offense, if the resulting offense level is greater
than that determined" under subsections (a) and (b). Specifi-
cally, section 2K2.1(c) provides that the defendant's offense
level should be determined under section 2X1.1. Section
2X1.1, in turn, provides that the base offense level for a crime
involving attempt, solicitation or conspiracy should be calcu-
lated either by reference to the offense level of the substan-
tive offense, see U.S.S.G. s 2X1.1(a), or "[w]hen an attempt,
solicitation, or conspiracy is expressly covered by another
offense guideline section, apply that guideline section," id.
s 2X1.1(c).
Drew argues that the district court erred in applying the
cross-reference provisions of sections 2K2.1 and 2X1.1 to
sentence him under the attempted murder guideline. See
Drew, 23 F. Supp. 2d at 43-44. Drew contends that he
should have been sentenced under section 2K2.1(a) & (b)(5)
and that the sentence imposed by the district court violated
his right to due process.
__________
5 Application Note 2 of section 2X1.1 defines "substantive offense"
as "the offense that the defendant was convicted of ... attempting
... to commit."
1. Application of sections 2K2.1 and 2X1.1
The district court's interpretation of sections 2K2.1 and
2X1.1 involves a question of law that we review de novo. See
Becraft, 117 F.3d at 1451. We must first determine which
subsection of 2K2.1 to apply. Drew argues that under sub-
sections (a) and (b), his total offense level should be 17 and
his sentencing range should be 30 to 37 months.6 Subsection
(c) of section 2K2.1, however, is the applicable provision
because: (1) Drew "used or possessed [the] firearm or ammu-
nition in connection with the commission or attempted com-
mission of another offense" namely, attempted first degree
murder, and (2) the resulting base offense level under subsec-
tion (c) would be greater than 17. Section 2K2.1(c) then
refers the sentencing court to section 2X1.1.
Section 2X1.1(c) instructs the court to apply the guideline,
if any, that "expressly cover[s]" an attempt to commit "anoth-
er offense" as used in section 2K2.1(c). The government
argues that, as the district court determined, Drew attempted
to commit first degree murder because "he had the requisite
state of mind, and took sufficiently premeditated actions to
constitute attempted first degree murder." Drew, 23
F. Supp. 2d at 44. As discussed supra, we conclude that the
district court did not clearly err in determining that Drew's
relevant conduct constituted attempted first degree murder.
Referring to the guideline for "Assault With Intent to Com-
mit Murder; Attempted Murder," U.S.S.G. s 2A2.1,7 the
__________
6 The level 17 is calculated from the base offense level of 14
because Drew was a prohibited person, see U.S.S.G. s 2K2.1(a), to
which is added a two-level adjustment for the gun's obliterated
serial number, see id. s 2K2.1(b)(4), and a four-level adjustment for
use of the weapon in connection with another felony offense. See
id. s 2K2.1(b)(5). With a three-level credit for acceptance of re-
sponsibility, see id. ss 3E1.1(a) and (b), Drew's offense level would
be 17. We agree with Drew that the district court erroneously
added a two-level adjustment for physical restraint of the victim
pursuant to section 3A1.3 of the Guidelines. See infra at 13-14.
7 U.S.S.G. s 2A2.1 provides:
court applied the base offense level (28) for attempted first
degree murder. After the two-level increase for restraint of
victim and the three-level reduction for acceptance of respon-
sibility, Drew's total offense level is 27 and his sentencing
range is 70 to 87 months. See Drew, 23 F. Supp. 2d at 44.
Drew further argues, however, that even if section 2K2.1(c)
is applicable, the sentencing court erred in interpreting sec-
tion 2K2.1(c)'s cross reference to section 2X1.1 because sec-
tion 2X1.1(a) uses the offense level for the "substantive
offense." Application Note 2 of section 2X1.1 defines "sub-
stantive offense" as "the offense that the defendant was
convicted of ... attempting ... to commit." Therefore, in
Drew's view, the sentencing court should have applied the
base offense level for the offense of conviction only--posses-
sion of a firearm by a prohibited person. Instead, the
sentencing court, applying section 2X1.1(c), used the base
offense level for attempted first degree murder. Drew's
argument rests upon the applicability of "substantive of-
fense." But "substantive offense" relates only to section
2X1.1(a) and (b); "substantive offense" is not mentioned in
section 2X1.1(c). Application Note 2, which defines "substan-
tive offense," "applies only if section 2X1.1 is applied directly,
rather than as a cross-reference from section 2K2.1." United
States v. Branch, 91 F.3d 699, 743 (5th Cir. 1996) (quotation
omitted); see also United States v. Fleming, 8 F.3d 1264,
1266 (8th Cir. 1993). Therefore, section 2X1.1(c) requires the
court to apply the offense level for attempted first degree
murder prescribed in section 2A2.1.
2. Due process
Drew next argues that his sentence violates his right to due
process because the district court "[i]n effect ... convicted
appellant of attempted murder, and then sentenced him to
the far greater offense," see Petitioner's Br. 26, and relied
upon hearsay evidence in doing so. Drew concedes that he
never raised his due process claim below but argues that his
__________
(a) Base Offense Level:
(1) 28, if the object of the offense would have constituted
first degree murder.
general challenge to the applicability of the cross-reference
provisions preserved the issue. See id. 25. Nevertheless,
because the district court lacked the opportunity to rule on
the issue, we review Drew's challenge for plain error only.
See United States v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir.
1991). In the sentencing context, we have held that error is
"plain" where it "is obvious under settled law and would
result in grave prejudice or a miscarriage of justice if not
corrected on appeal." United States v. Watson, 57 F.3d 1093,
1097 & n.6 (D.C. Cir. 1995) (citation omitted). Drew's chal-
lenge falls substantially short of this standard.
First, the United States Supreme Court has held that a
sentencing court may consider a defendant's conduct apart
from his offense conduct without violating due process. See
United States v. Watts, 519 U.S. 148, 151-53 (1997); Witte v.
United States, 515 U.S. 389, 395 (1995) (consideration of
"relevant conduct" under Guidelines bears on character of
offense of conviction and does not punish for different of-
fense); Nichols v. United States, 511 U.S. 738, 747 (1994)
(reaffirming propriety of sentencing court's consideration of
"a defendant's past criminal behavior, even if no conviction
resulted from that behavior"); see also 18 U.S.C. s 3661 ("No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of
an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sen-
tence.").
Second, the district court indeed relied in part on Szala's
hearsay testimony. His testimony corroborated Mrs. Drew's
testimony regarding Drew's actions. The Supreme Court has
specifically held that the rules of evidence do not restrict the
evidence a sentencing court may consider. See Nichols, 511
U.S. at 747 ("As a general proposition, a sentencing judge
may appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consid-
er, or the source from which it may come."). The sentencing
court did not consider any prohibited evidence in sentencing
Drew and, accordingly, we reject his due process claim.
D. Physical restraint
Finally, Drew argues that the sentencing court improperly
added a two-level adjustment under U.S.S.G. s 3A1.3 for
"physically restrain[ing] [the victim]"8 because he did not
physically touch his wife and any restraint was part of the
offense itself. The government responds that Drew physical-
ly restrained Mrs. Drew by ordering her to leave her bed-
room and walk down the stairs at gunpoint. Whether the
district court properly added the two-level adjustment is a
mixed question of law and fact. On a mixed question of law
and fact we use a sliding scale depending on the "mix" of the
question. See United States v. Kim, 232 F.3d 513, 517 (D.C.
Cir. 1994). Because the facts on this issue are not significant-
ly in dispute, the issue is primarily a question of law and
therefore review closer to de novo is required. See id.
Application Note 1 to section 3A1.3 defines "physically
restrained," referencing commentary to section 1B1.1, as "the
forcible restraint of the victim such as by being tied, bound,
or locked up." U.S.S.G. s 1B1.1. We agree that "the use of
the modifier 'such as' in the definition of 'physical restraint'
found in s 1B1.1, Application Note 1(i), indicates that the
illustrations of physical restraint are listed by way of example
rather than limitation." United States v. Anglin, 169 F.3d
154, 163 (2d Cir. 1999) (citation and internal quotation marks
omitted). Nevertheless, the phrase "being tied, bound, or
locked up" indicates that physical restraint requires the de-
fendant either to restrain the victim through bodily contact or
to confine the victim in some way. See United States v.
Harris, 959 F.2d 246, 265 (D.C. Cir. 1992) (victim was "physi-
cally restrained" when defendant's coconspirators beat victim
and detained him for seven days). While the Ninth Circuit
has decided that forcing someone to move by gunpoint consti-
tutes physical restraint, see United States v. Thompson, 109
F.3d 639, 641 (9th Cir. 1997), no other circuit has found
physical restraint without some type of confinement accompa-
nying the forced movement at gunpoint. See Anglin, 169
__________
8 U.S.S.G. s 3A1.3 states, "If a victim was physically restrained in
the course of the offense, increase by 2 levels."
F.3d at 163-64. As the Second Circuit noted in Anglin, "The
most pertinent definition of 'physical' is 'of the body as
opposed to the mind, as, physical exercise.' " Id. at 164
(quoting Webster's Deluxe Unabridged Dictionary (1979) at
1353) (emphasis in original). The required restraint must, as
the language plainly recites, be physical. While Mrs. Drew
no doubt felt restrained by Drew, she was "not subject to
physical restraint, as we interpret the Guideline's use of that
phrase." Id. at 164-65. Any other interpretation would
effectively add the two-level adjustment to almost any at-
tempted murder because presumably any victim would feel
restrained if directed to move at gunpoint. Because we
conclude that Drew's actions did not include physical re-
straint, we remand to the district court to resentence without
the two-level adjustment.
For the foregoing reasons, we affirm Drew's conviction.
We vacate his sentence, however, because of the incorrect
addition of a two-level adjustment for physical restraint of the
victim and remand for resentencing in accordance with this
opinion.
So ordered.
Edwards, Chief Judge, concurring in the judgment: I
concur in the judgment of the court. I write separately,
however, because I feel that the court's disposition of the so-
called Blackledge/Menna issue under the rubric of "waiver"
warrants further explanation.
Appellant Drew has argued to the court that his conviction
for violating 18 U.S.C. s 922(g)(8), pursuant to a plea of
guilty, must be vacated because the statute, both on its face
and as applied in this case, violates the Second and Fifth
Amendments to the Constitution. The Government, citing
United States v. Broce, 488 U.S. 563 (1989), argues that Drew
is barred from raising these constitutional challenges, be-
cause, normally, a guilty plea is not subject to later challenge
before an appellate court. Drew, citing Blackledge v. Perry,
417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61
(1975), responds that a defendant normally retains the right
to challenge the constitutionality of a statute even following a
guilty plea.
The majority opinion holds that Drew's attempt to invoke
the Blackledge/Menna exception fails for two reasons: first,
the constitutional issues now raised by Drew were "waived"
when he failed to raise them first with the trial court; and,
second, the constitutional questions need not be reached by
this court, because they do not present a "jurisdictional"
question. I fail to comprehend this line of analysis in light of
my understanding of the Blackledge/Menna exception.
There are a number of potential theories of "waiver" and
"forfeiture" in the criminal context. One is the well-known
"plain-error" rule, most recently explained in full in United
States v. Olano, 507 U.S. 725, 731 (1993). As the Court noted
there, "[n]o procedural principle is more familiar to this Court
than that a constitutional right, or a right of any other sort,
may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it." Id. (citations and inter-
nal quotation marks omitted). Absent "plain error," objec-
tions not timely raised at trial normally cannot be raised on
appeal.
Another theory of forfeiture/waiver arises in the context of
post-trial, collateral attacks. In such cases, absent a showing
of "cause and prejudice," a defendant is barred from raising a
constitutional challenge that could have been raised at trial.
See, e.g., United States v. Frady, 456 U.S. 152, 167 (1982).
An entirely different line of inquiry arises with respect to
challenges that follow a guilty plea. As noted above, the
general rule in such cases is that a conviction pursuant to a
guilty plea is not subject to later challenge bfore an appellate
court. See Bousley v. United States, 523 U.S. 614, 621 (1998).
The principal exception to this rule is the so-called Black-
ledge/Menna principle that "a plea of guilty to a charge does
not waive a claim that--judged on its face--the charge is one
which the State may not constitutionally prosecute." Menna,
423 U.S. at 62-63 n.2. The Blackledge/Menna exception does
not depend upon whether the objection is labeled "jurisdic-
tional," at least the Supreme Court has never said this.
Rather, the critical issue seems to be whether the constitu-
tional challenge involves a claimed right by the defendant
"not to be haled into court at all upon the felony charge."
Broce, 488 U.S. at 575 (quoting Blackledge, 417 U.S. at 30-
31). In Broce, the Court made it clear that the Black-
ledge/Menna exception is not without limits, holding that a
guilty plea barred a later double jeopardy claim where the
violation was not clear on the face of the indictment. 488
U.S. at 576.
The question that we face is whether there should be an
additional barrier to the invocation of the Blackledge/Menna
exception, i.e., whether a defendant must raise the constitu-
tional objection before the trial court first in order to be able
to raise it later before an appellate court. The Supreme
Court has never addressed this issue.
Nor has this court ever addressed this issue. The majori-
ty's reliance on United States v. Baucum, 80 F.3d 539 (D.C.
Cir. 1996), United States v. Badru, 97 F.3d 1471 (D.C. Cir.
1996), and United States v. David, 96 F.3d 1477 (D.C. Cir.
1996), is misplaced. Baucum, Badru, and David are simple
"plain error" cases. Even though they talk in terms of
"waiver" and "bar," they can mean nothing more than "forfei-
ture." As the Supreme Court said in Olano, "[w]aiver is
different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right." 507 U.S.
725, 733 (1993) (citations and internal quotation marks omit-
ted). If the majority means to suggest that, in a post-trial
context, constitutional challenges raised on appeal that were
not raised below are automatically waived--with no possible
inquiry into plain error--that is simply wrong. The Supreme
Court has made it clear that "[a] rigid and undeviating
judicially declared practice under which courts of review
would invariably and under all circumstances decline to con-
sider all questions which had not previously been specifically
urged would be out of harmony with ... the rules of funda-
mental justice." Id. at 732 (quoting Hormel v. Helvering, 312
U.S. 552, 557 (1941)). The forfeiture analysis as articulated in
Olano is the law of the land, and our circuit has no authority
to change it to some rigid standard of waiver.
In any case, Baucum, Badru, and David have nothing
whatsoever to do with the application of the Blackledge/
Menna exception. The court in Baucum discussed
Blackledge/Menna because the defendant in that case raised
the novel question of whether a facial challenge to the consti-
tutionality of a criminal statute is a jurisdictional question
that can be raised at any time. 80 F.3d at 540. The panel in
Baucum recognized that the Blackledge/Menna line of au-
thority lent some support to the defendant's claim. But
Baucum does not purport to apply the Blackledge/Menna
exception. In fact, Blackledge/Menna has no direct bearing
on the issues in Baucum--it is discussed merely by way of
analogy. So I fail to understand the majority's reliance on
these three cases in its resolution of the Blackledge/Menna
issue.
The majority opinion appears to suggest that the mere
failure to raise a constitutional challenge before the trial court
automatically "waives" a defendant's right to pursue the
issues in a subsequent attack under the Blackledge/Menna
exception. The Supreme Court has never said this, and, so
far as I can tell, none of our sister circuits subscribe to such a
rule.
If a court faces a situation in which a defendant has pled
guilty to a charge with respect to which it is facially clear that
he could not be prosecuted--i.e., as that is understood under
the Blackledge/Menna principle--it would be an extraordi-
nary proposition to say that the defendant will nonetheless go
to jail because he failed to object before the trial court. The
Fifth Circuit seemed to recognize this problem in United
States v. Knowles, 29 F.3d 947 (5th Cir. 1994). The defen-
dant there pled guilty to possession of a firearm in a school
zone. Shortly after judgment in Knowles, the court of ap-
peals, in another case, ruled that the underlying statute upon
which the charge in Knowles was based was unconstitutional,
because Congress had not properly invoked its power under
the Commerce Clause when it enacted the statute. The
defendant in Knowles never raised this constitutional chal-
lenge before the trial court. The court of appeals, however,
first employed the "plain error" rule to determine whether to
entertain the challenge, then, finding no forfeiture, the court
considered the claim on the merits pursuant to the
Blackledge/Menna exception. The Fifth Circuit flatly reject-
ed the Government's claim that the defendant's guilty plea
barred consideration of the constitutional claim:
Noting that a guilty plea generally waives defects in the
underlying proceedings, the government also claims that
Knowles's conviction on Count Two is proper because
Knowles pleaded guilty. This argument is not persua-
sive. We have reversed other convictions against defen-
dants who had pleaded guilty to charges brought under
the Gun Free School Zones Act. See United States v.
Handy, 8 F.3d 20 (5th Cir. 1993) (unpublished). We
have done so for the well-established reason that a guilty
plea does not waive the right of the defendant to chal-
lenge the constitutionality of the statute under which he
is convicted. See Menna v. New York, 423 U.S. 61, 62-
63 n.2, 96 S. Ct. 241, 242 n.2, 46 L.Ed.2d 195 (1975) ("[A]
plea of guilty to a charge does not waive a claim that--
judged on its face--the charge is one which the State
may not constitutionally prosecute.").
Id. at 952.
In other words, the court in Knowles addressed the forfei-
ture issue through the normal "plain error" lens, and then
applied the Supreme Court's "judged on its face/the charge is
one which the State may not constitutionally prosecute" test
in allowing an invocation of the Blackledge/Menna exception.
I think this is the correct approach. There are not many
cases in which a defendant is going to be able to satisfy both
the plain error rule and the Blackledge/Menna standard to
gain review where no objection has been raised in the trial
court. Nonetheless, the Knowles approach ensures protec-
tion for those few defendants whose alleged "guilt" is illusory,
because it is clear on the face of the charge that the State had
no constitutionally sound basis upon which to prosecute.
Drew argues that section 922(g)(8) violates the Second and
the Fifth Amendments. These challenges raise no plain
error. As the Supreme Court has noted, a challenge not
raised below will not meet the plain error standard unless it
"seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings." Olano, 507 U.S. at 732 (citations
and internal quotation marks omitted). The issues raised by
Drew do not come close to meeting the high standards of
plain error. Indeed, as the Government noted in its brief,
Drew's constitutional challenges are largely baseless. See
Br. and Addendum for Appellee at 11 n.5.
I concur in the judgment in the instant case, not simply
because Drew failed to raise his constitutional claims before
the trial court, but because he has failed to demonstrate any
plain error in the judgment based on his guilty plea. Absent
plain error, I agree that Drew forfeited his right to raise his
claims before this court. Because there is no plain error in
this case, there is no reason to address whether Drew's claim
on its face implicates the constitutional power of the Govern-
ment to prosecute. In short, Drew cannot resort to the
Blackledge/Menna exception to raise his constitutional claims.