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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–8709 and 20–444
_________________
GREGORY GREER, PETITIONER
19–8709
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the eleventh circuit
UNITED STATES, PETITIONER
20–444
v.
MICHAEL ANDREW GARY
on writ of certiorari to the united states
court of appeals for the fourth circuit
[June 14, 2021]
Justice Kavanaugh delivered the opinion of the
Court.
Federal law prohibits the possession of firearms
by certain categories of individuals, including by those who have
been convicted of a crime punishable by more than one year in
prison. See 18 U. S. C. §§922(g), 924(a)(2). In
Rehaif v.
United States, 588 U. S. ___ (2019),
this Court clarified the
mens rea requirement for
firearms-possession offenses, including the felon-in-possession
offense. In felon-in- possession cases after
Rehaif, the
Government must prove not only that the defendant knew he possessed
a firearm, but also that
he knew he was a felon when
he possessed the firearm. See
id., at ___ (slip op., at
11).
As many courts have recognized and as common
sense suggests, individuals who are convicted felons ordinarily
know that they are convicted felons. That simple point turns out to
be important in the two cases before us.
Before this Court decided
Rehaif, Gregory
Greer and Michael Gary were separately convicted of
felon-in-possession offenses.
Greer’s case arose when police officers began
talking to him in a hotel hallway. The officers suspected that
Greer was involved in a prostitution ring. Greer ran from the
officers and led them on a chase down a stairwell. The officers
found a gun discarded in the stairwell and caught Greer shortly
thereafter. Greer was wearing an empty holster clipped inside his
waistband. At the time of the incident, Greer was a convicted
felon. The Federal Government charged him in federal court with
being a felon in possession of a firearm, and the case went to
trial. Greer’s defense was that he had never possessed the gun that
the police found in the stairwell. Greer did not request—and the
District Court did not give—a jury instruction requiring the jury
to find that Greer knew he was a felon when he possessed the
firearm. The jury found Greer guilty.
Gary’s case arose out of two separate encounters
with police. Both times, officers found Gary with a firearm. At the
time of the incidents, Gary was a convicted felon. The Federal
Government charged him in federal court with two counts of being a
felon in possession of a firearm. Gary pled guilty. During the plea
colloquy, the District Court did not advise Gary that, if he went
to trial, a jury would have to find that he knew he was a felon
when he possessed the firearms.
After Greer’s trial and Gary’s plea, this Court
decided
Rehaif. Based on
Rehaif, both Greer and Gary
raised new
mens rea arguments on appeal. Greer argued that
he was entitled to a new trial because the District Court failed to
instruct the jury that he had to know he was a felon. Gary
similarly argued that his guilty plea must be vacated because the
District Court failed to advise him during the plea colloquy that,
if he went to trial, a jury would have to find that he knew he was
a felon. The Eleventh Circuit rejected Greer’s argument, 798 Fed.
Appx. 483 (2020), while the Fourth Circuit agreed with Gary’s
argument, 954 F.3d 194 (2020). We granted certiorari in both cases.
See 592 U. S. ___ (2021).
* * *
The question for this Court is whether Greer
and Gary are entitled to plain-error relief for their unpreserved
Rehaif claims. We conclude that they are not. We therefore
affirm the judgment of the Eleventh Circuit and reverse the
judgment of the Fourth Circuit.
Under Rule 51(b) of the Federal Rules of
Criminal Procedure, a defendant can preserve a claim of error “by
informing the court” of the claimed error when the relevant “court
ruling or order is made or sought.” If the defendant has “an
opportunity to object” and fails to do so, he forfeits the claim of
error.
Ibid. If the defendant later raises the forfeited
claim on appeal, Rule 52(b)’s plain-error standard applies. See
Puckett v.
United States,
556
U.S. 129, 135 (2009).
Here, both defendants forfeited their
mens
rea claims by failing to properly preserve them under Rule
51(b). We therefore conduct plain-error review under Rule
52(b).
Rule 52(b) provides: “A plain error that affects
substantial rights may be considered even though it was not brought
to the court’s attention.” “Rule 52(b) is permissive, not
mandatory.”
United States v.
Olano,
507 U.S.
725, 735 (1993). To establish eligibility for plain-error
relief, a defendant must satisfy three threshold requirements. See
Rosales-Mireles v.
United States, 585 U. S. ___,
___–___ (2018) (slip op., at 3–4).
First, there must be an
error.
Second, the error must be plain.
Third, the
error must affect “substantial rights,” which generally means that
there must be “a reasonable probability that, but for the error,
the outcome of the proceeding would have been different.”
Id., at ___ (slip op., at 4) (internal quotation marks
omitted). If those three requirements are met, an appellate court
may grant relief if it concludes that the error had a serious
effect on “the fairness, integrity or public reputation of judicial
proceedings.”
Ibid. (internal quotation marks omitted); see
also
Olano, 507 U. S., at 735–737.
The defendant has “the burden of establishing
entitlement to relief for plain error.”
United States v.
Dominguez Benitez,
542 U.S.
74, 82 (2004). That means that the defendant has the burden of
establishing each of the four requirements for plain-error relief.
Satisfying all four prongs of the plain-error test “is difficult.”
Puckett, 556 U. S., at 135.
In the two cases before us, all agree that
Rehaif errors occurred during both defendants’ district
court proceedings and that the errors were plain, thus satisfying
the first two prongs of the plain-error test. We address the third
prong: whether the
Rehaif errors affected the defendants’
“substantial rights.” Greer has the burden of showing that, if the
District Court had correctly instructed the jury on the
mens
rea element of a felon-in-possession offense, there is a
“reasonable probability” that he would have been acquitted.
Dominguez Benitez, 542 U. S., at 83. And Gary has the
burden of showing that, if the District Court had correctly advised
him of the
mens rea element of the offense, there is a
“reasonable probability” that he would not have pled guilty.
Ibid.
In a felon-in-possession case where the
defendant was in fact a felon when he possessed firearms, the
defendant faces an uphill climb in trying to satisfy the
substantial-rights prong of the plain-error test based on an
argument that he did not know he was a felon. The reason is simple:
If a person is a felon, he ordinarily knows he is a felon. “Felony
status is simply not the kind of thing that one forgets.” 963 F.3d
420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh’g
en banc). That simple truth is not lost upon juries. Thus, absent a
reason to conclude otherwise, a jury will usually find that a
defendant
knew he was a felon based on the fact that he
was a felon. A defendant considering whether to plead guilty
would recognize as much and would likely factor that reality into
the decision to plead guilty. In short, if a defendant was in fact
a felon, it will be difficult for him to carry the burden on
plain-error review of showing a “reasonable probability” that, but
for the
Rehaif error, the outcome of the district court
proceedings would have been different.
Of course, there may be cases in which a
defendant who is a felon can make an adequate showing on appeal
that he would have presented evidence in the district court that he
did not in fact know he was a felon when he possessed firearms. See
Fed. Rule App. Proc. 10(e). Indeed, at oral argument, the
Government conceded that there are circumstances in which a
defendant might make such a showing. See Tr. of Oral Arg. in No.
19–8709, pp. 42–43, 50–51, 61–62; Tr. of Oral Arg. in No.
20–444, pp. 16–17. But if a defendant does not make such an
argument or representation on appeal, the appellate court will have
no reason to believe that the defendant would have presented such
evidence to a jury, and thus no basis to conclude that there is a
“reasonable probability” that the outcome would have been different
absent the
Rehaif error.
Here, Greer and Gary have not carried the burden
of showing that the
Rehaif errors in their respective cases
affected their substantial rights. Before their respective
felon-in-possession offenses, both Greer and Gary had been
convicted of multiple felonies. Those prior convictions are
substantial evidence that they knew they were felons. Neither
defendant has ever disputed the fact of their prior convictions. At
trial, Greer stipulated to the fact that he was a felon. And Gary
admitted that he was a felon when he pled guilty. Importantly, on
appeal, neither Greer nor Gary has argued or made a representation
that they would have presented evidence at trial that they did not
in fact know they were felons when they possessed firearms.
Therefore, Greer cannot show that, but for the
Rehaif error
in the jury instructions, there is a reasonable probability that a
jury would have acquitted him. And Gary likewise cannot show that,
but for the
Rehaif error during the plea colloquy, there is
a reasonable probability that he would have gone to trial rather
than plead guilty.
In sum, as the Fifth Circuit aptly stated,
demonstrating prejudice under
Rehaif “will be difficult for
most convicted felons for one simple reason: Convicted felons
typically know they’re convicted felons.”
United States v.
Lavalais, 960 F.3d 180, 184 (2020). So it is here.
In response, Greer and Gary advance several
arguments, none of which is persuasive.
Greer’s primary argument is that an appellate
court conducting plain-error review of a
Rehaif
instructional error may examine only the trial record, not the
entire record. Thus, as relevant here, Greer contends that an
appellate court may not consider information about a defendant’s
prior convictions contained in a pre-sentence report. But the
undisputed fact that Greer was a felon is in the trial record.
Indeed, Greer stipulated to that fact. See
Old Chief v.
United States,
519 U.S.
172 (1997). And importantly, Greer has never argued or made any
representation on appeal—either to the Eleventh Circuit or to this
Court—that he did not know he was a felon when he possessed a
firearm. We therefore need not look to the pre-sentence report to
resolve the plain-error question in this case.
In any event, Greer’s argument that plain-error
review must focus exclusively on the trial record contravenes both
logic and precedent. Recall that the question at the
substantial-rights prong of plain-error review is whether there is
a reasonable probability that, if the jury had been given the
proper
mens rea instruction, Greer would have been
acquitted. Greer asks us to assume a scenario where the proper
instruction was given, but where the Government did not introduce
additional evidence to prove that Greer knew he was a felon. That
is not a realistic scenario.
Greer’s argument is also inconsistent with
precedent. This Court has repeatedly stated that an appellate court
conducting plain-error review may consider the
entire
record—not just the record from the
particular proceeding
where the error occurred. See,
e.g.,
United States v.
Vonn,
535 U.S.
55, 58–59, 74–75 (2002); see also
Puckett, 556
U. S., at 142–143;
Dominguez Benitez, 542 U. S.,
at 84–85;
United States v.
Cotton,
535 U.S.
625, 632–633, and n. 3 (2002). Therefore, when an
appellate court conducts plain-error review of a
Rehaif
instructional error, the court can examine relevant and reliable
information from the entire record—including information contained
in a pre-sentence report.
To be sure, if a defendant believes that
particular information in the record is irrelevant or unreliable,
she may urge the appellate court to discount that information. But
concerns about relevance and reliability should be addressed
through case-by-case adjudication rather than through a categorical
bar against considering evidence outside the trial record.
For his part, Gary argues that he is exempt from
ordinary plain-error review for one of two alternative reasons.
First, Gary contends that his unpreserved
Rehaif claim is not subject to ordinary plain-error review
because his claim falls within a narrow “futility” exception to
Rule 52(b). Gary notes that, at the time of his guilty plea, every
Court of Appeals to consider the issue had held that knowledge of
one’s felon status was not an element of a felon-in- possession
offense. Given that uniform wall of precedent, he says that it
would have been futile for him to contemporaneously object to the
omission of that element from his plea colloquy. For that reason,
he argues that his claim should be governed by the more lenient
harmless-error standard of Rule 52(a) rather than the more exacting
plain-error standard of Rule 52(b).
The problem for Gary is that his proposed
futility exception lacks any support in the text of the Federal
Rules of Criminal Procedure or in this Court’s precedents.
Start with Rule 52, which addresses the
standards for harmless-error and plain-error review in federal
criminal appeals. Rule 52 is divided into two subsections. Rule
52(a) deals with harmless error. Rule 52(b) addresses plain error.
Rule 52(b) specifically addresses unpreserved errors, while Rule
52(a) makes no mention of such errors. Thus, Rule 52(a) and Rule
52(b) together indicate that unpreserved errors must be analyzed
for plain error under Rule 52(b).
Consider also Rule 51, which provides that a
party’s failure to make a contemporaneous objection does not
prejudice the party if he did “not have an opportunity” to raise
the objection. Rule 51’s focus on a party’s
opportunity to
object—rather than a party’s likelihood of
prevailing on the
objection—also undercuts Gary’s proposed futility exception.
Consistent with the text of Rules 51 and 52,
this Court’s precedents have long drawn a bright line between
harmless-error and plain-error review based on preservation. See
Olano, 507 U. S., at 731. In
Johnson v.
United States,
520 U.S.
461 (1997), for example, the Court applied plain-error review
to a claim that was the subject of an 11 to 1 split in authority
among the Circuits, with only one Court of Appeals accepting the
defendant’s position. The “near-uniform precedent both from this
Court and from the Courts of Appeals,”
id., at 467–468, did
not affect the application of Rule 52(b). All that mattered was
that the defendant had failed to raise a contemporaneous objection.
See
id., at 465–466.
In sum, both the Federal Rules and this Court’s
precedents confirm that unpreserved
Rehaif claims are
subject to plain-error review under Rule 52(b).
Second, Gary asserts that
Rehaif
errors (at least when they occur during a plea proceeding) are
“structural” and require automatic vacatur in
every case
without regard to whether a defendant can otherwise satisfy the
plain-error test.
As this Court has repeatedly made clear,
however, the “general rule” is that “a constitutional error does
not automatically require reversal of a conviction.”
Arizona
v.
Fulminante,
499 U.S.
279, 306 (1991). Only in a “very limited class of cases” has
the Court concluded that an error is structural, and “thus subject
to automatic reversal” on appeal.
Neder v.
United
States,
527 U.S.
1, 8 (1999) (internal quotation marks omitted).
Structural errors are errors that affect the
“entire conduct of the [proceeding] from beginning to end.”
Fulminante, 499 U. S., at 309. The “highly exceptional”
category of structural errors includes, for example, the “denial of
counsel of choice, denial of self-representation, denial of a
public trial, and failure to convey to a jury that guilt must be
proved beyond a reasonable doubt.”
United States v.
Davila,
569 U.S.
597, 611 (2013).
By contrast, discrete defects in the criminal
process—such as the omission of a single element from jury
instructions or the omission of a required warning from a Rule 11
plea colloquy—are not structural because they do not
“
necessarily render a criminal trial fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.”
Neder, 527 U. S., at 9 (omission of element from jury
instructions); see also
Dominguez Benitez, 542 U. S.,
at 81, n. 6 (omission of Rule 11 warning from plea
colloquy).
As the Court’s precedents make clear, the
omission of a single element from jury instructions is not
structural. See,
e.g.,
Neder, 527 U. S., at
7–10. A
Rehaif error in jury instructions is therefore not
structural. And it follows that a
Rehaif error in a plea
colloquy is likewise not structural. The omission of that
mens
rea element from a plea colloquy—like the omission of that
mens rea element from jury instructions—does not affect the
entire framework within which the proceeding occurs. See 527
U. S., at 8. And unlike the errors that this Court has found
structural, the omission of a single element from a plea colloquy
does not “deprive defendants of basic protections without which a
criminal [proceeding] cannot reliably serve its function as a
vehicle for determination of guilt or innocence.”
Id., at
8–9 (internal quotation marks omitted). In short,
Rehaif
errors fit comfortably within the “general rule” that “a
constitutional error does not automatically require reversal of a
conviction.”
Fulminante, 499 U. S., at 306. Rather, a
defendant such as Gary must satisfy the ordinary plain-error
test.
* * *
The bottom line of these two cases is
straightforward. In felon-in-possession cases, a
Rehaif
error is not a basis for plain-error relief unless the defendant
first makes a sufficient argument or representation on appeal that
he would have presented evidence at trial that he did not in fact
know he was a felon. When a defendant advances such an argument or
representation on appeal, the court must determine whether the
defendant has carried the burden of showing a “reasonable
probability” that the outcome of the district court proceeding
would have been different. Because Greer and Gary did not make any
such argument or representation on appeal in these cases, they have
not satisfied the plain-error test.[
1]
We affirm the judgment of the U. S. Court
of Appeals for the Eleventh Circuit, and we reverse the judgment of
the U. S. Court of Appeals for the Fourth Circuit.
It is so ordered.
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