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Criminal – Plea vacated, defendant didn’t understand elements of offense

A defendant who pleaded guilty to two firearms charges did not understand the essential elements of the offense to which he pleaded. Because the district court accepted the plea without giving the defendant notice of an element of the offense, as required by the Supreme Court, its error was structural and the plea was vacated.


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.


Because Gary did not attempt to withdraw his guilty plea in the district court, the court reviews his plea challenge for plain error.

The court agrees with the parties that the first two prongs of 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. Moreover, in light of the Supreme Court’s decision in Rehaif, and this court’s determination in Lockhart, the court concludes the error in this case is plain.

Having established that the first two prongs have been met, the court must consider whether Gary has established that the error affected his substantial rights. Under each of the Supreme Court’s rationales, the court concludes that the district court’s constitutional error is structural and affects Gary’s substantial rights, satisfying the third prong of the plain error inquiry.

Finally, this court must determine whether it should exercise its discretion to correct the error. 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 court cannot envision a circumstance where, faced with such constitutional infirmity and deprivation of rights as presented in this case, the court would not exercise its discretion to recognize the error and grant relief.

The court holds that the district court’s erroneous acceptance of a constitutionally invalid guilty plea “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Accordingly, the court exercises our discretion to notice the error and vacate Gary’s guilty plea and convictions.

Vacated and remanded.

United States v. Gary (Lawyers Weekly No. 001-048-20, 21 pp.) (Roger Gregory, C.J.) Case No. 18-4578. March 25, 2020. From D.S.C. (Joseph Fletcher Anderson Jr., S.J.) Kimberly Harvey Albro for Appellant, Alyssa Leigh Richardson for Appellee.

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