Antwan Heyward pleaded guilty in 2017 to being a felon in possession of a firearm. The predicate felony underlying his conviction was a 2006 South Carolina conviction for possession of cocaine, for which state law authorized punishment up to 3 years’ imprisonment. Heyward had received a 1-year sentence, however, suspended upon successful completion of 6 months of probation.
After pleading guilty, Heyward appealed his sentence on separate grounds. While on appeal, the Supreme Court decided Rehaif, expanding the requisite scienter of a felon in possession offense to include proof that the individual knew of their prohibited status.
Applying plain error review, the Fourth Circuit found Heyward satisfied his burden of proving prejudice—that, but for the error, a reasonable probability exists that he would not have plead guilty. In vacating his conviction, the majority found persuasive statements Heyward had made on the record between his arrest and sentencing that: (1) when asked during a pretrial hearing whether he could lawfully possess a firearm, Heyward responded affirmatively—that he was not a felon since he had been convicted of a misdemeanor for which he received 6 months’ probation; (2) that he stopped to ask his attorney’s advice during the plea colloquy before answering whether he was a convicted felon on the dates alleged in the indictment; and (3) that, in allocution, Heyward professed to having no felonies, only state misdemeanor(s).
Agee wrote a robust dissenting opinion, believing the majority to be plainly wrong on the merits. Not only would it have found Heyward not to have satisfied his burden of persuasion under plain error review, but the dissent also takes issue with several procedural decisions the majority made in reaching its conclusion. The dissent was critical of the majority for ignoring an affidavit by a South Carolina probation officer stating she had advised Heyward of his state court conviction’s impact on his right to possess a firearm under federal law and for creating a circuit split with the First, Second, and Fifth Circuits.
Appeal from the District of South Carolina
Opinion by Heytens, joined by King
Dissent by Agee
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