United States v. Michael Gary

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-4578

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL ANDREW GARY,

Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:17-cr-00809-JFA-1)

Argued: December 11, 2019 Decided: March 25, 2020

Before GREGORY, Chief Judge, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
which Judge Floyd and Judge Thacker joined.

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Alyssa Leigh Richardson,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
GREGORY, Chief Judge:

Michael Andrew Gary appeals his sentence following a guilty plea to two counts of

possession of a firearm and ammunition by a person previously convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1). Gary contends that two recent decisions—the Supreme

Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), where the Court held

that the government must prove not only that a defendant charged pursuant to § 922(g)

knew he possessed a firearm, but also that he knew he belonged to a class of persons barred

from possessing a firearm, and this Court’s en banc decision in United States v. Lockhart,

947 F.3d 187 (4th Cir. 2020), in which this Court considered the impact of Rehaif on a

defendant’s guilty plea—require that his plea be vacated.

Upon consideration of the parties’ arguments, we hold that Gary’s guilty plea was not

knowingly and intelligently made because he did not understand the essential elements of the

offense to which he pled guilty. Because the court accepted Gary’s plea without giving him

notice of an element of the offense, the court’s error is structural. We therefore vacate his

guilty plea and convictions and remand the case to the district court for further proceedings.

I.

On January 17, 2017, Gary was arrested following a traffic stop for driving on a

suspended license. Gary’s cousin, Denzel Dixon, was a passenger in the vehicle. During

an inventory search of the vehicle, officers recovered a loaded firearm and a small plastic

bag containing nine grams of marijuana. Gary admitted to possession of both the gun and

2
marijuana and was charged under state law with possession of a firearm by a convicted

felon.

Five months later, on June 16, 2017, officers encountered Gary and Dixon outside

a motel room while patrolling the motel’s parking lot. The officers detected the odor of

marijuana, and as they approached, Gary and Dixon entered the back seat of a vehicle.

Dixon had a marijuana cigarette in his lap. The men consented to a personal search, and

the officers found large amounts of cash on both men and a digital scale in Dixon’s pocket.

After receiving permission to search the vehicle, the officers found a stolen firearm,

ammunition, “a large amount” of marijuana in the trunk, and baggies inside a backpack.

J.A. 105. Gary claimed the gun was his and admitted that he regularly carried a firearm

for protection. Dixon claimed ownership of the marijuana. Gary was arrested and charged

under state law with possession of a stolen handgun. Gary had, at the time of his arrests, a

prior felony conviction for which he had not been pardoned.

Gary was indicted in federal court and later pled guilty without a plea agreement to

two counts of possession of a firearm and ammunition after having been convicted of a

felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 During his Rule 11 plea

colloquy, the government recited facts related to each of his firearm possession charges.

The court also informed Gary of the elements it understood the government would be

required to prove if he went to trial: (1) that Gary had “been convicted of a crime

punishable by imprisonment for a term exceeding one year;” (2) that he “possessed a

1
The state law charges against Gary were nolle prossed.
3
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.” J.A. 31. 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].” Rehaif, 139 S. Ct. at 2194. The district court accepted Gary’s

plea and sentenced him to 84 months on each count, to run concurrently.

Gary appealed his sentence to this Court. 2 During the pendency of his appeal, Gary

filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) asserting that the

Supreme Court’s recent decision in Rehaif, 139 S. Ct. at 2191, is relevant to his appeal.

See Fed. R. App. P. 28(j). Gary further noted that this Court, sitting en banc, heard oral

argument in Lockhart, in which counsel argued the impact of Rehaif on the defendant’s

guilty plea. Gary asserted that Rehaif, as well as this Court’s opinion in Lockhart, 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.

2
At sentencing, the district court, over Gary’s objection, imposed a four-level
specific offense enhancement for possessing a gun in connection with another felony
offense—possession with intent to distribute marijuana—based on the “large amount” of
marijuana Dixon possessed on June 16, 2017. Gary objected to the enhancement on the
grounds that (1) he had no knowledge of the marijuana, (2) Dixon, not Gary, was charged
with possession with intent to distribute the marijuana, and (3) Dixon admitted the
marijuana was his. Because we find that the invalidity of Gary’s guilty plea is dispositive
of this appeal, we cannot and do not address the appropriateness of any sentence imposed
based on the plea.

4
 We invited the parties to file supplemental briefs addressing what impact, if any,

Rehaif may have on Gary’s convictions. 3 This Court has since decided Lockhart, but limited

its holding to its unique facts, finding that the two errors committed in Lockhart’s case—the

failure to properly advise him of his sentencing exposure under the Armed Career Criminal

Act, 18 U.S.C. § 924(e), and the Rehaif error—“in the aggregate” were sufficient to establish

prejudice for purposes of plain error review. Lockhart, 947 F.3d at 197. We answer today

the question Lockhart did not: “whether a standalone Rehaif error requires automatic vacatur

of a defendant’s [guilty] plea, or whether such error should be reviewed for prejudice under

[United States v.] Olano[, 507 U.S. 725, 732 (1993)].” Lockhart, 947 F.3d at 196. We find

that a standalone Rehaif error satisfies plain error review because such an error is structural,

which per se affects a defendant’s substantial rights. We further find that the error seriously

affected the fairness, integrity and public reputation of the judicial proceedings and therefore

must exercise our discretion to correct the error.

II.

Because Gary 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

3
“[W]hen an intervening decision of this Court or the Supreme Court affects
precedent relevant to a case pending on direct appeal, an appellant may timely raise a new
argument, case theory, or claim based on that decision while his appeal is pending without
triggering the abandonment rule.” United States v. White, 836 F.3d 437, 443–44 (4th Cir.
2016), abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399 (2018).
5
occurred; (2) the error was plain; and (3) the error affected his substantial rights. Olano,

507 U.S. at 732; United States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010). 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.” Olano, 507 U.S. at 732

(internal quotation marks omitted). With this standard in mind, we turn to the instant case.

Gary argues the first two prongs of plain error analysis are established by the

decision in Rehaif itself—that an error occurred and that it was plain. He contends that the

third prong, which requires Gary to show an effect on his substantial rights, is satisfied as

well. Without notice that the government was required to prove an additional element not

previously disclosed at the time of his guilty plea, Gary argues that he could not have

knowingly and intelligently pled guilty, rendering his plea constitutionally invalid. 4

The government concedes that the district court committed plain error in failing to

inform Gary of the Rehaif element, but contends that omission of this element from the

plea colloquy did not affect Gary’s substantial rights because there is overwhelming

4
Gary also states that the government’s omission of the knowledge-of-status
element from his indictment further supports a finding that he was not informed of the true
nature of the offense and therefore could not knowingly and intelligently plead guilty.
Appellee’s Supp. Br. 7. He contends that a conviction based on an indictment where
neither the grand jury nor the defendant was informed of all the elements of the offense,
together with the omission of the same element from both the indictment and the plea
colloquy, affected his substantial rights. Id. at 8. Beyond these statements, however, Gary
presents no argument regarding the sufficiency of his indictment or whether it constitutes
a separate ground for the vacatur of his guilty plea. As “[i]t is not the practice of this court
to consider an argument that has not been developed in the body of a party’s brief,” Gary’s
failure to address the validity of the indictment is deemed an abandonment of the issue.
Kinder v. White, 609 F. App’x 126, 133 (4th Cir. 2015); see also Fed. R. App. P.
28(a)(8)(A); White, 836 F.3d at 443.

6
evidence that he knew of his felony status prior to possessing the firearms. 5 The

government also notes that since Rehaif was decided, numerous circuits applying Olano’s

plain error standard have determined that there is no effect on a defendant’s substantial

rights where the evidence shows that the defendant knew of his status as a prohibited person

at the time of his gun possession. See, e.g., United States v. Burghardt, 939 F.3d 397, 404

(1st Cir. 2019) (plain error did not affect substantial rights where there was “overwhelming

proof” defendant had previously been sentenced to more than one year in prison). 6

But the decisions cited by the government are 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

5
In support of its argument, the government notes that Gary’s presentence report
lists a 2014 conviction for second degree burglary, for which Gary was sentenced to eight
years suspended upon service of three years. Three of those eight suspended years were
later revoked for a probation violation. And at the time of that conviction, Gary had already
served 691 days in custody and received credit for time served for the burglary charge.
J.A. 107–113.
6
See also, e.g., United States v. Denson, 774 F. App’x 184, 184–85 (5th Cir. 2019)
(unpublished) (error did not affect substantial rights where defendant stipulated he had
been convicted of a felony offense before possessing a firearm); United States v. Bowens,
938 F.3d 790, 797 (6th Cir. 2019) (“defendants cannot show that but for the error, the
outcome of the proceeding would have been different”); United States v. Williams, 946
F.3d 968, 973 (7th Cir. 2020) (finding no effect on substantial rights where defendant
served over a decade in prison for murder before committing firearm offense); United
States v. Hollingshed, 940 F.3d 410, 415–16 (8th Cir. 2019) (substantial rights not affected
where defendant sentenced to 78 months and served four years and thus had to have been
aware of his felony status); United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019)
(substantial rights prong not met where defendant spent nine years in prison on various
felony convictions before his firearm arrest); United States v. Reed, 941 F.3d 1018, 1021–
22 (11th Cir. 2019) (defendant failed to establish errors affected his substantial rights where
he had eight previous felony convictions and had served at least 18 years in prison before
he was arrested for possession of a firearm).
7
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. We find that Gary did not knowingly and intelligently plead guilty

because he was not fully informed during his plea colloquy of the elements the government

had to prove to convict him of the § 922(g) offenses, and that this type of error—this denial

of due process—is a structural error that requires the vacatur of Gary’s guilty plea and convictions.

III.

A.

We agree with the parties that the first two prongs of Olano plain error review have

been met by the district court’s failure to give Gary notice of the Rehaif element of the

§ 922(g) offense. First, the district court’s acceptance of Gary’s plea was error. Federal

Rule of Criminal Procedure 11 requires that before accepting a plea of guilty, the court

must inform a defendant of, and confirm that he understands, the nature of the charge to

which he is pleading. Fed. R. Crim. P. 11(b)(G). Rule 11’s purpose is to ensure that a

defendant is fully informed of the nature of the charges against him and the consequences

of his guilty plea. See Fed. R. Crim. P. 11(b). Certainly, the district court’s acceptance of

Gary’s plea without informing him the government was required to prove an additional

element was error that violated the requirements of Rule 11. See Lockhart, 497 F.3d at 196.

Moreover, the error was plain. To be “plain,” an error must be “clear or obvious at

the time of appellate consideration.” Ramirez-Castillo, 748 F.3d at 215 (citations and

internal quotation marks omitted); see also Olano, 507 U.S. at 734; Henderson, 133 S. Ct.

8
at 1130 (internal quotation marks omitted). An error is clear or obvious “if the settled law

of the Supreme Court or this circuit establishes that an error has occurred.” Ramirez-

Castillo, 748 F.3d at 215 (citing United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)).

This was the case here. At the time of Gary’s guilty plea, the parties and the district

court relied on this Court’s decision in United States v. Langley, 62 F.3d 602, 606 (4th Cir.

1995) (en banc), abrogated by Rehaif, 139 S. Ct. at 2191, wherein this Court had held that

knowledge of one’s prohibited status was not a required element of a § 922(g) offense. But

after the Supreme Court rendered its decision in Rehaif, and while Gary’s appeal was

pending, this Court decided Lockhart, holding that it is plain error to accept a guilty plea

based on a pre-Rehaif understanding of the elements of a § 922(g)(1) offense. Lockhart,

947 F.3d at 196. These cases now represent the settled law by which this Court must

measure whether the error is “plain” at the time of Gary’s appeal. Ramirez-Castillo, 748

F.3d at 215. In light of the Supreme Court’s decision in Rehaif, and this Court’s

determination in Lockhart, we conclude the error in this case is plain.

B.

Having established that the first two prongs have been met, we must consider

whether Gary has established the third prong of an Olano inquiry—that the error affected

his substantial rights. See Olano, 507 U.S. at 732.

1.

The government argues that although the court’s failure to inform Gary of the

additional element of the offense was error, it did not affect his substantial rights because

there is overwhelming evidence in the record that he was aware he had been convicted of

9
a crime punishable by imprisonment for a term exceeding one year at the time he possessed

the firearms, including a felony burglary conviction for which he served 691 days in

custody. Thus, according to the government, Gary has not demonstrated a reasonable

probability that, but for the error, he would not have pled guilty.

In response, Gary argues that his guilty plea is “constitutionally invalid” because

the court misinformed him regarding the elements of his offense. Relying on Supreme

Court precedent, he contends that a constitutionally invalid plea affects substantial rights

as a per se matter and supports the conclusion that a defendant need not make a case-

specific showing of prejudice even in the face of overwhelming evidence that he would

have pled guilty.

Further, Gary asserts that the district court’s error in accepting his unintelligent

guilty plea is structural because it infringed upon his autonomy interest in “mak[ing] his

own choices about the proper way to protect his own liberty.” Weaver v. Massachusetts,

137 S. Ct. 1899, 1907–08 (2017). He contends this violation is comparable to the

infringement that occurs when a defendant is denied the right to self-representation or the

right to the counsel of his choice—and therefore affects his substantial rights regardless of

the strength of the prosecution’s evidence or whether the error affected the ultimate

outcome of the proceedings.

We find Gary’s argument persuasive. “In most cases,” the phrase “affects

substantial rights” means that “the error must have been prejudicial”—that is, “[i]t must

have affected the outcome of the district court proceedings.” Ramirez-Castillo, 748 F.3d

at 215 (citing Olano, 507 U.S. at 734). Stated differently, to establish that a Rule 11 error

10
has affected substantial rights, 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.” United States

v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (citing Strickland v. Washington, 466 U.S.

668, 694 (1984)).

But the Supreme Court has 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.” Dominguez Benitez, 542 U.S. 74, 84 n.10. For

example, in Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court held that a

guilty plea is constitutionally valid only to the extent it is “voluntary” and “intelligent.” Id.

at 618. A plea does not qualify as intelligent unless a criminal defendant first receives “real

notice of the true nature of the charge against him, the first and most universally recognized

requirement of due process.” Id. (citing Smith v. O’Grady, 312 U.S. 329, 334 (1941)).

Similarly, in Henderson v. Morgan, 426 U.S. 637, 645 (1976), the Supreme Court

invalidated a guilty plea to second degree murder where the defendant was not informed

of the mens rea requirement. Such a plea, the Court held, could not support a judgment of

guilt unless it was “voluntary in a constitutional sense,” and the plea could not be voluntary,

i.e. an intelligent admission that he committed the offense, unless the defendant received

“real notice of the true nature of the charge against him.” Id. at 645–46. The Court

assumed the prosecutor had overwhelming evidence of the defendant’s guilt, but found that

nothing in the record, not even the defendant’s admission that he killed the victim, could

11
substitute for a finding or voluntary admission that he had the requisite intent. Id. at 646;

see also United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007) (defendant’s

misunderstanding of what was necessary to find him guilty of the offense “resulted in a

flawed guilty plea that affected [his] substantial rights.”).

Gary’s argument is 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 . . . .” Olano, 507 U.S. at

735. This Court has recognized that this language refers to “structural errors.” United

States v. David, 83 F.3d 638, 647 (4th Cir.1996); see also United States v. Marcus, 560

U.S. 258, 263 (2010) (certain “structural errors” might affect substantial rights regardless

of their actual impact on an appellant’s trial); United States v. White, 405 F.3d 208, 221

(4th Cir. 2005) (Olano recognizes a “special category of unpreserved errors . . . that may

be noticed ‘regardless of their effect on the outcome’”). Such errors are referred to as

“structural” because they are “fundamental flaws” that “undermine[] the structural integrity

of [a] criminal tribunal.” See Vasquez v. Hillery, 474 U.S. at 263–64.

“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.’” Weaver, 137

S. Ct. at 1907–08 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Structural

errors are “defects in the constitution of the trial mechanism which defy analysis by

12
‘harmless-error’ standards,” Fulminante, 499 U.S. at 309, and “deprive defendants of

‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence . . . and no criminal punishment may be

regarded as fundamentally fair.’” Neder v. United States, 527 U.S. 1, 8–9 (1999) (quoting

Rose v. Clark, 478 U.S. 570, 577–78 (1986)).

The Supreme Court has identified a “limited class” of errors as structural. Johnson

v. United States, 520 U.S. 461, 468–69 (1997). See, e.g., McCoy v. Louisiana, 138 S. Ct.

1500 (2018) (attorney admission of defendant’s guilt over defendant’s objection); Sullivan

v. Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-doubt instruction); Vasquez, 474

U.S. at 254 (racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S.

39 (1984) (violation of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168

(1984) (right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963)

(total deprivation of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial

trial judge). “The precise reason why a particular error is not amenable to [harmless error]

analysis—and thus the precise reason why the Court has deemed it structural—varies in a

significant way from error to error,” Weaver, 137 S. Ct. at 1907–08, but the Supreme Court

has adopted at least three broad rationales for identifying errors as structural.

First, an error has been deemed structural in instances where “‘the 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.’” McCoy, 138 S.

Ct. at 1511 (quoting Weaver, 137 S. Ct. at 1908). Deprivations of the Sixth Amendment

13
right to self-representation are structural errors not subject to harmless error review because

“[t]he right is either respected or denied; its deprivation cannot be harmless.” McCoy, 138

S. Ct. at 1511 (quoting McKaskle, 465 U.S. at 177 n.8).

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.’”

United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (quoting Vasquez, 474 U.S. at

263). Such is the case where the consequences of a constitutional deprivation “are

necessarily unquantifiable and indeterminate,” Gonzalez-Lopez, 548 U.S. at 150. For

example, when a defendant is denied the right to select his or her own attorney, the

government will, as a result, find it almost impossible to show that the error was “harmless

beyond a reasonable doubt.” Weaver, 137 S. Ct. at 1908 (citing Chapman v. California,

386 U.S. 18, 24 (1967)).

“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 in Gideon, 372

U.S. at 343–45, or in the failure to give a reasonable doubt instruction as in Sullivan, 508

U.S. at 279. In these circumstances, it “would therefore be futile for the government to try

to show harmlessness.” Weaver, 137 S. Ct. at 1908.

These three categories are not rigid; more than one of these rationales may be part

of the explanation for why an error is deemed structural. Weaver, 137 S. Ct. at 1908. Thus,

an error can count as structural even if the error does not lead to fundamental unfairness in

every case. Id., see Gonzalez-Lopez, 548 U.S. at 149, n.4 (rejecting the idea that structural

errors “always or necessarily render a trial fundamentally unfair and unreliable”).

14
 2.

The Supreme Court has expressly reserved the question of whether structural errors

automatically satisfy the third prong of Olano, see Puckett v. United States, 556 U.S. 129,

140–41 (2009), but this Court has held that such errors necessarily affect substantial rights,

satisfying Olano’s third prong. 7 See David, 83 F.3d at 647 (failure to instruct jury on an

element of the offense is within the “special category” of forfeited errors). Therefore, if an

error is determined to be structural, the third prong of Olano is satisfied. Ramirez-Castillo,

748 F.3d at 215. Against this backdrop, we must determine whether the constitutional error

in this case is a structural error that satisfies the third prong of an Olano inquiry.

Under each of the Supreme Court’s rationales, we find the district court’s error is

structural. First, the error violated Gary’s right to make a fundamental choice regarding

his own defense in violation of his Sixth Amendment autonomy interest. Indeed, the Sixth

Amendment contemplates that “the accused . . . is the master of his own defense,” and thus

certain decisions, including whether to waive the right to a jury trial and to plead guilty,

are reserved for the defendant. McCoy, 138 S. Ct. at 1508.

Gary had the right to make an informed choice on whether to plead guilty or to

exercise his right to go to trial. 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

7
We acknowledge that not every Rule 11 violation resulting in a constitutional error
requires the automatic reversal of a conviction. But a Rule 11 error is not harmless when
it affects a defendant’s substantial rights. See Fulminante, 499 U.S. at 306 (citing
Chapman, 386 U.S. at 21–22); see Fed. R. Crim P. 11(h). Indeed, structural errors affect
the “entire conduct of the trial from beginning to end,” and therefore cannot be harmless.
Fulminante, 499 U.S. at 309.
15
determine the best way to protect his liberty. Gary need not demonstrate prejudice resulting

from the error because harm to a defendant is irrelevant to the principles underlying his

autonomy right and liberty interests. McKaskle, 465 U.S. at 177 n. 8. Thus, the error is

structural regardless of the strength of the prosecution’s evidence or whether the error

would have affected the ultimate outcome of the proceedings. Id.

Further, we find that the district court’s error is structural because the deprivation

of Gary’s autonomy interest under the Fifth Amendment due process clause has

consequences that “are necessarily unquantifiable and indeterminate,” see Gonzalez-Lopez,

548 U.S. at 150, rendering the impact of the district court’s error simply too difficult to

measure. See id. at 149 n.4 (quoting Vasquez, 474 U.S. at 263) (finding structural error

where “the precise ‘effect of the violation cannot be ascertained.’”)

Here, as in Gonzalez-Lopez, “we rest our conclusion of structural error upon the

difficulty of assessing the effect of the error.” 548 U.S. at 149 n.4; see also Waller, 467

U.S. at 49 n.9 (error not subject to harmless error review where the benefits of the right

infringed “are frequently intangible, difficult to prove, or a matter of chance.”). The error

here occurred in the context of a guilty plea and thus is not the type of error that “‘may be

quantitatively assessed in the context of other evidence presented [at trial] in order to

determine whether [the error was] harmless beyond a reasonable doubt.’” Gonzalez-Lopez,

548 U.S. at 148 (citing Fulminante, 499 U.S. at 307–08). And unlike Rule 11 errors

amounting to “small errors or defects that have little if any, likelihood of having changed

the result of the [proceeding],” see Chapman, 386 U.S. at 22, the impact of this error—an

undisputed constitutional violation where Gary was misinformed about the nature of the

16
charges against him—is instead the type that is fundamental to the judicial process. When

Gary pled guilty, he waived, among other rights, his right to a trial by jury, his privilege

against self-incrimination, and his right to confront his accusers. The impact of his

unknowing waiver of his trial rights based on an unconstitutional guilty plea, just like the

denial of other trial rights previously identified by the Supreme Court as structural error, is

unquantifiable. It is impossible to know how Gary’s counsel, but for the error, would have

advised him, what evidence may have been presented in his defense, and ultimately what

choice Gary would have made regarding whether to plead guilty or go to trial. With no

way to gauge the intangible impact that results from a guilty plea premised on a

constitutional violation, see Waller, 467 U.S. at 49 n.9, we “find it almost impossible to

show that the error was ‘harmless beyond a reasonable doubt.’” Weaver, 137 S. Ct. at 1908

(citing Chapman, 386 U.S. at 24).

Finally, we independently find 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. Gary waived his trial rights after he was misinformed regarding the

nature of a § 922 offense and the elements the government needed to prove to find him

guilty. Indeed, under the provisions of § 922(g), “the defendant’s status is the ‘crucial

element’ separating innocent from wrongful conduct.” Rehaif, 139 S. Ct. at 2197 (citing

United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994). Yet the district court

failed to inform Gary that knowledge of his prohibited status was an element of the offense,

denying him any opportunity to decide whether he could or desired to mount a defense to

this element of his § 922(g)(1) charges—as it was his sole right to do. Thus, in accepting

17
his uninformed plea, the court denied Gary’s right to make a knowing and intelligent

decision regarding his own defense.

Regardless of evidence in the record that would tend to prove that Gary knew of his

status as a convicted felon, it is in the interest of justice that Gary knowingly and

intelligently “engag[e] in the calculus necessary to enter a plea on which this Court can

rely in confidence.” Lockhart, 947 F.3d at 197. Any conviction resulting from a

constitutionally invalid plea “cannot reliably serve its function as a vehicle for

determination of guilt or innocence, . . . and no criminal punishment [based on such a plea]

may be regarded as fundamentally fair.” See Neder, 527 U.S. at 8–9 (quoting Rose, 478

U.S. at 577–78).

Accordingly, we conclude that the district court’s constitutional error is structural

and affects Gary’s substantial rights, satisfying the third prong of the Olano inquiry.

C.

Finally, having found that Gary has satisfied the three prongs under Olano, this

Court must determine whether it should exercise its discretion to correct the error. 507

U.S. at 732. The fact that the district court’s error affected Gary’s substantial rights does

not alone warrant the exercise of our discretion. We are “not obligated to notice even

structural error on plain error review.” Id. at 737. We exercise our discretion on plain

error review only when “the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 736. “Central to this inquiry is a determination

of whether, based on the record in its entirety, the proceedings against the accused resulted

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in a fair and reliable determination of guilt.” Ramirez-Castillo, 748 F.3d at 217 (citing

United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996)).

The Fifth Amendment guarantees a criminal defendant due process in the course of

criminal proceedings that could deprive him of life, liberty, or property. U.S. Const.,

amend. V. Although trial by jury is guaranteed specifically by the Sixth Amendment, the

right is often waived through the court’s acceptance of a guilty plea. A guilty plea is by

far the most common criminal proceeding, rendering it “indispensable in the operation of

the modern criminal justice system.” See Dominguez Benitez, 542 U.S. at 75. Indeed, the

vast majority of federal criminal cases are resolved through guilty pleas. In fiscal year

2018, nearly 90% of federal criminal defendants nationwide pled guilty. Judicial

Business—September 2018, Table D-4, available at https://www.uscourts.gov/statistics/table/d-

4/judicial-business/2018/09/30 (last viewed Mar. 9, 2020) (saved as ECF opinion

attachment). Within the Fourth Circuit the percentage is even greater—96.4 percent. See

U.S. Sentencing Commission, “Statistical Information Packet, Fiscal Year

2018, Fourth Circuit,” Table 2, available at https://www.ussc.gov/research/data-

reports/geography/2018-federal-sentencing-statistics (last viewed Mar. 9, 2020) (saved as

ECF opinion attachment).

Accordingly, the integrity of our judicial process demands that each defendant who

pleads guilty receive the process to which he is due. It is the duty of the court to ensure

that each defendant who chooses to plead guilty enters a knowing and voluntary plea.

The impact of a guilty plea upon a defendant’s fundamental rights cannot be

overstated. An individual’s choice to plead guilty is his alone to make—after he has been

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fully informed by the nature of the charges against him and the consequences of his plea.

The waiver of Fifth and Sixth Amendment trial rights based on a constitutionally invalid

plea undermines the credibility and public reputation of judicial proceedings and fails to

foster confidence that they will result in a “fair and reliable determination of guilt” rather

than a conviction obtained contrary to constitutional principles. Even where evidence in

the record might tend to prove a defendant’s guilt, his right to due process when pleading

guilty must remain paramount. See Cedelle, 89 F.3d at 186 n.4 (recognizing that

“circumstances may exist where the proceedings contain an error that seriously affects the

fairness, integrity, or public reputation of the judiciary even though the record demonstrates

that the defendant is guilty”).

We recognize that there is an importance in respecting the finality of guilty pleas

and the laudable purpose they serve as part of our criminal justice system. Indeed, our

system encourages guilty pleas; they benefit both defendants, for whom they may result in

lesser penalties and the dismissal of additional charges, and the government, which favors

judicial economy. Accordingly, we must proceed with caution when permitting their

vacatur. But the structural integrity of the judicial process is not only at stake but

undermined when we permit convictions based on constitutionally invalid guilty pleas to

stand. There should be no instance where such a plea is accepted for the sake of obtaining

a conviction, particularly where a defendant who did not receive notice of the true nature

of an offense might unknowingly forgo the opportunity to raise an available defense.

As Olano makes clear, a reviewing court should exercise its discretion to grant plain

error review “in those circumstances in which a miscarriage of justice would otherwise

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result.” 507 U.S. at 736. But justice is not only a result. In criminal proceedings where

life and liberty are at stake, it is certainly our intent that “justice” be achieved in the result,

but it is our mandate that “justice” be achieved in the process afforded the accused. To

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 “would

surely cast doubt upon the integrity of our judicial process . . . .” See Mastrapa, 509 F.3d

at 661. We cannot envision a circumstance where, faced with such constitutional infirmity

and deprivation of rights as presented in this case, we would not exercise our discretion to

recognize the error and grant relief.

We therefore hold that the district court’s erroneous acceptance of a constitutionally

invalid guilty plea “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Olano, 507 U.S. at 732. Accordingly, we exercise our discretion to notice

the error and vacate Gary’s guilty plea and convictions.

IV.

For these reasons, we vacate Gary’s plea and convictions, and remand the case to

the district court for further proceedings.

VACATED AND REMANDED

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