Firearm Offenses/922(g) – In possession-of-a-firearm-by-a-felon cases, failing to advise a defendant at a plea hearing and failing to instruct a jury at trial that the government must prove a defendant knew they were a felon at the time they possessed a firearm constitutes plain error but is not a basis for relief unless the defendant makes a sufficient showing that he could have presented evidence at trial that he did not know he was a felon.
The Supreme Court granted certiorari in two different cases. In Greer, Gregory Greer was convicted by a jury of being a felon in possession of a firearm. At trial, the district court did not instruct the jury that it had to find that the defendant knew he was a felon at the time he possessed the firearm in order to convict. In Gary,Michael Gary pleaded guilty to two counts of felon-in-possession. During the plea colloquy, the District Court did not advise Gary that if he went to trial, the jury would have to find that he was aware he was a felon when he possessed the firearm. Rehaif was decided after the trial/sentencing phases in both cases and both defendants cited the mens rea holding in Rehaif in their appeals. The Eleventh circuit affirmed Greer’s conviction while the Fourth Circuit reversed Gary’s conviction, holding that the failure to advise a defendant of the mens rea element of his offense is a structural error that requires automatic reversal.
In an almost unanimous opinion, Supreme Court first held that the plain error standard of review applied in both cases because neither Greer nor Gary objected. While it was “undisputed” that the district courts in these cases committed Rehaif errors and that those errors were plain, the Court ultimately held that neither defendant was entitled to relief because neither had met their burden of making a sufficient showing that absent the error, there was a reasonable probability that the outcome of their case would have been different.
Specifically, the Court held that there was not a reasonable probability Greer would have been acquitted or that Gary would not have pled guilty. Both defendants had multiple prior felony convictions, which the Court described as “substantial evidence that they knew they were felons,” and neither of them had argued or made a representation at the district court level or on appeal that they did not know they were felons.
The Court also rejected Greer’s argument that an appellate court conducting plain error review of a Rehaif error is limited to reviewing the trial record rather than the entire record, including documents like the PSR. With respect to Gary, the Court rejected his argument that plain error review did not apply given that it would have been futile to object pre-Rehaif and that Rehaif errors are structural errors requiring automatic vacatur in every case. Rather, a Rehaif error falls under the general rule that a constitutional error does not automatically require reversal of a conviction.
Concurring in part and dissenting in part, Justice Sotomayor concurred with the majority that Greer could not show the trial error affected his substantial rights, but emphasized two limits of the majority’s opinion: (1) the Court’s analysis did not extend to harmless error review where a defendant contemporaneously objected at trial, and (2) the knowledge-of-status element is an element just like any other that the Government must prove beyond a reasonable doubt.
As to Gary, Justice Sotomayor agreed with the majority that the Fourth Circuit erred, and Gary was not automatically entitled to relief under plain-error review. However, she would have vacated the judgment and remanded to the Fourth Circuit to determine whether Gary can make a case-specific showing that the error affected his substantial rights.
Opinion by Kavanaugh, joined by Roberts, Thomas, Kagan, Breyer, Alito, Gorsuch, and Barrett.
Sotomayor concurring concurring in part and dissenting in part.
Click here to read the opinion.