Courthouse Steps Oral Argument Teleforum: United States v. Gary

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On April 20, 2021, the Supreme Court will hear oral argument in the case of United States v. Gary.  In this case, defendant Gary pled guilty in federal court to two counts of possession of a firearm as a convicted felon in violation of 18 U.S.C. 922(g)(1) and 924(a)(2) then appealed his sentence.  

During the interim following his appeal, the Supreme Court decided Rehaif v. United States and held that for conviction under 922(g)(1) and 924(a)(2), the United States must prove both (1) knowing possession of the firearm and (2) knowledge of felon-status.  Gary supplemented his appeal with the Rehaif decision, arguing he had not been informed of the knowing-felon-status element of the crime when he pled guilty. 

The Ninth Circuit found the district court’s omission of the knowing-felon-status element was plain error, vacated Gary’s conviction, and remanded even though Gary did not show he would not have taken the plea but for the district court’s omission. 

The Supreme Court will decide whether Gary is automatically entitled to the relief awarded by the Ninth Circuit even where Gary does not attempt to show prejudice caused by the district court’s failure to inform Gary on the knowing-felon-status element. 


Robert Leider, Assistant Professor of Law, Antonin Scalia Law School, George Mason University


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Nick Marr:  Welcome everyone to this Federalist Society Teleforum conference call, the last Teleforum conference call this busy day. So thanks all for joining us as this afternoon, April 21st, 2021, we're having another Courthouse Steps Oral Argument Teleforum, last but certainly not least, of a case called United States v. Gary. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.


      As always, please note that the expressions of opinion on our call today are those of our experts.


      And we're very pleased to be joined this afternoon by Professor Robert Leider. He's an Assistant Professor of Law at Antonin Scalia Law School of George Mason University. Without further ado, Professor, thanks very much for being with us. I'll give the floor to you.


Prof. Robert Leider:  Thank you. So federal law prohibits the possession of a firearm by a convicted felon among certain other categories of individuals, and the federal government routinely prosecutes the offense. Felon and possession cases make up about 6,000 criminal cases a year, nearly 10% of the federal criminal docket. The penalty for violating the prohibition is steep, up to 10 years in prison and so are the real world sentences. The average sentence is about six years and this distribution is bi-modal. So for those who have qualifying convictions under the Armed Career Criminal Act the average is 15 years. For those who don't fall within the Armed Career Criminal A ct, the average is about four years in prison. But in comparison with what state law generally punishes for a gun possession, federal penalties are pretty steep.


      Now in many cases, individuals may not realize that they fall within a prohibited category. So, for example, the felon-in-possession ban generally prohibits the possession of a firearm by a person who is convicted of a crime punishable by more than one year. But many cases given the way the criminal statutes are structured, the theoretical maximum penalty a person could have received is unclear or is at least unclear for the defendant. So it often depends on which elements and sentencing factors are applied. The defendant himself may not know if sentences, especially in state court, are often only a small fraction of the statutory maximum.


      So the defendant might've only received say a probation or short jail term and have no idea that his crime had a three-year statutory maximum. And adding to the confusion, states define the misdemeanor felony distinction differently. So in Pennsylvania, for example, the misdemeanor of the first degree is punishable by up to five years in prison. So a person could very well think that he has only been convicted of a misdemeanor not realizing that some misdemeanors count as felonies under federal law. And making it even worse than that, in some jurisdictions the maximum potential penalty isn't clear. The state might still have common law crimes or the state may not spell out exactly what the maximum penalty is in the statute.


      Two years ago, in a case called Rehaif v. United States, the Supreme Court held that Section 922(g), which holds all of these status prohibitors, was not a strict liability offense. Now, that case didn't involve a felon; it involved somebody who was charged for being an alien unlawfully in the United States and possessing a firearm. The case involved a non-immigrant student who was on a student visa and left his school. And because he didn't re-enroll in a different school, his immigration status was terminated. And since he didn't leave the country, he was then unlawfully present in the United States. And so after the government learned that he had shot two firearms on a shooting range, the government indicted him for unlawful possession of a firearm by an alien unlawfully in the United States.


      And Rehaif contended that he didn't know he was in the country unlawfully and the Supreme Court reversed his conviction and held that the government must prove that a person was aware of those facts that constitute the prohibiting factor. Justice Alito issued a strong dissent which in part warned about the fallout that the majority's decision would cause.


      The Court's oral arguments yesterday were about that fallout. In United States v. Gary, which is today's Teleforum, the Court was presented with whether defendant who pleaded guilty was automatically entitled to plain-error relief if the district court did not explain to him that if the case went to trial, the government would be required to prove beyond a reasonable doubt that he was aware of his status as a convicted felon.


      Now, the backstory on Gary was that a South Carolina police officer pulled him over for running a red light. He was with his cousin at the time, and Gary informed the officer that he was driving on a suspended license, which caused the officer to arrest him. The police later found a loaded gun and marijuana during inventory search of his vehicle. He was arrested under state law for possession of the gun by a convicted felon and he was later charged under South Carolina law, which makes it generally illegal to carry a handgun.


      Five months later while Gary was out on bond, police officers ran into Gary and the same cousin and the cousin had a marijuana cigarette in his lap. Gary and his cousin gave the officers permission to search their personals and their vehicle and the search turned up a large quantity of cash, a digital scale, and in the car, a stolen firearm ammunition and a large amount of marijuana.


      The police then charged Gary again under state law this time for possession of a stolen firearm. But on this incident, Gary caught the attention of federal prosecutors who charged him with two counts of unlawful possession of a firearm under federal law. And he pleaded guilty to both charges and he was sentenced to 84 months in prison. The state charges were ultimately dropped.


      Now during the plea colloquy, the trial court informed Gary that the government would have to prove that he had been convicted of a crime punishable by imprisonment for a term exceeding one year, that he possessed a firearm, that the firearm had traveled in interstate or foreign commerce, and that he did sell knowingly; that is, that he knew that the item was a firearm and his possession of that firearm was voluntary and intentional.


      The district court in accordance with the prevailing law of every circuit at that time, did not inform Gary that the government would have to prove that he knew his status as convicted felon.


      Now, among the facts, the government had offered evidence that Gary had been convicted of seven previous felonies. Gary agreed with all those facts and he did not preserve any argument that the government had to prove his knowledge of his previous felonies.


      Now, when a person fails to object courts still have some power to correct the mistake. So Federal Rule of Criminal Procedure 52, states that a plain error that affects substantial rights may be considered, even though it was not brought to the court's attention. And the Court now looks at four prongs; first, whether there was an error which wasn't waived, second that it's clear or obvious, third that it affected the appellate’s substantial rights. And if those three criteria are met, then fourth, that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Now, when Rehaif intervened in Gary's favor, Gary sought to get the benefit of the decision on direct appeal.


      And on appeal to the Fourth Circuit, both sides agree that the judge's instruction constituted plain error, because it admitted that the government had to prove the defendant status as a convicted felon beyond a reasonable doubt -- or sorry, that the defendant knew of his status beyond a reasonable doubt. So that left whether the conviction effected the appellate's substantial rights. The government argued, no, Gary was a convicted felon multiple times over; he obviously knew his status. But the Fourth Circuit held that it didn't matter. It held that the error to explain the elements properly constituted a structural error in the proceeding. Now structural errors, the Supreme Court has explained, constitute a special category of forfeited errors that can be corrected regardless of their effect on the outcome in the individual case.


      And so these are errors such as racial discrimination and grand jury selection, the denial of the right of self-representation at trial, a lawyer who admits his client's guilt over the defendant's objection. So it's a very narrow set of categories of fundamental errors, and the Court itself has been hesitant to expand this category. But the Fourth Circuit said that the failure to give him the element deprived Gary of a meaningful choice whether to plead guilty. And that invalidated his plea; he didn't need to show any case specific prejudice. The court denied a petition for rehearing en banc. In a somewhat unusual opinion, Judge Wilkinson joined by three other judges -- sorry, four other judges, concurred on the ground that the decision was so wrong that they shouldn't waste time with an en banc proceeding; it merited immediate Supreme Court reversal. That appears likely to happen.


      At oral argument yesterday, the government argued that Rehaif errors are not automatically prejudicial and that there was no exceptions to the plain-error requirement, even for those claims foreclosed by circuit precedent. That seemed to get a warm reception. On questioning from the Chief Justice, the government contended that omitting an element would never constitute structural error, that it may of course be relevant to whether the defendant can show prejudice, but the government was not willing to concede that this sort of error merited automatic reversal. The government said that there might be some cases where the colloquy was so defective that it would merit structural error but that this was far away from that.


      For Gary, Judge Fisher argued that there should be automatic reversal because failing to advise Gary on an element interfered with his basic due process rights, including his autonomy about whether to plead guilty or not. And Fisher repeatedly pressed that this was the molten core of due process. But Fisher receives some difficult questions about the rule. Fisher's rule seem to only apply when the circuits were unanimously against the defendant. And he received some questions from the Chief Justice about what that meant, but here Fisher said that all the circuits were lined up against him and not just all the circuits that had decided it, but literally every circuit. Justice Alito asked why elements are unique. What about other material emissions in the plea colloquy.


      Justice Kagan seemed suspicious about whether to allow automatic reversals even in cases where it was abundantly clear that the defendant would not have done anything differently in pleading guilty. And Justice Gorsuch also pressed him whether defense counsel had some notice about whether knowledge of the convicted status would be required. And when Justice Gorsuch was a court of appeals judge, he had drafted an opinion suggesting that the knowledge elements should be applied to the knowledge of the prohibited status.


      But the oral argument went rather briefly. A lot of the justices did not ask questions of one or the other advocate, and it appears likely that we're headed for a 9-0 reversal of the court of appeals. So with that, I will --


Nick Marr: Yeah, thanks very much Robert. So now we'll open the floor to audience questions and seeing no questions yet, Robert, you addressed my go-to question, which is can you kind of read the tea leaves, see where this is going. But looks like we might be headed for 9-0 reversal here. Any points that you didn't touch on, anything you were surprised by, any questions you were surprised by, anything like that?


Prof. Robert Leider:  I mean, I think the one thing I was surprised by most was the lack of questions. Argument went pretty quickly. There didn't seem to be a spirited debate. In terms of the underlying theory of it, I think this case is probably easier than the jury analog of this case. So there was a case in late ‘90s called Nader v. United States where the Supreme Court held that the failure to instruct the jury on an element of an offense did not constitute structural error over a spirited dissent from Justice Scalia. But I think the reasons for which Justice Scalia may have been right in that opinion don't really apply to the plea colloquy contacts. Having juries properly instructed on all the elements is essential, not just for the jury's role as a fact finder, but also for the jury's ability to show mercy in individual cases.


      So one of the classic things juries have done historically, for example, is to nullify in part if they think sentences are too harsh. And so the kind of famous 18th century example is that juries would down value of goods that were stolen to prevent the death penalty from being imposed. But those kinds of actions are impossible if the jury isn't instructed on an element and the judge just takes judicial notice of it. And to the extent that plea bargaining now takes place in the shadow of the jury, having that jury power on all elements of the offense is essential. But it seems less essential when the question is just one of pleading guilty presumably.


      You know, virtually all of these cases the defendant -- I wouldn’t say virtually. Most of these cases, the status of a convicted felon is known to the defendant. And so it's not really going to influence which direction to go. But the power and the likely outcome of a jury trial, I think is much more essential for determining helpfully negotiations will play out.


      And the Court in Nader said that the failure to instruct was a structural error, and it would seem anomalous if it held that it was structural error in the plea bargaining context.


Nick Marr: Great. Then I don't [Inaudible 00:16:55]. So we don’t have any question. One just popped up so we’ll go to it now.


Caller 1: Thanks for very informative recounting of the case. My question is, does this idea of structural defect or structural error, does that have any history or basis in statute or constitutional precedent or is that some fairly new invention or where did that come from?


Prof. Robert Leider:  I think it came from the Court's efforts to determine which errors, merit automatic reversal and which don't. In the earlier days, all errors, no matter how trivial, would result in the reversal of a verdict. And the trend since the late 1800s and early 1900s has been not to reverse jury verdicts for petty technical reasons that did not affect the substance of the proceeded. And so in the old days you had any error in the instruction, you would get a do over. But that position or that rule ended up causing a lot of waste of resources and wasn't seen as one that was conducive to justice. And so the rule had been well, if it doesn't affect substantial rights, then disregard the error on appeal.


      And I think the courts -- the terms like structural error are definitely modern terms, but I think they are aimed at denoting a limited class of errors that would be essentially, inherently prejudicial and the types of things that might've been a clear paradigm case for reversal in earlier days. But today with the disregarding of harmless error, it's kind of a core set of errors that the Court wants to preserve automatic reversal on and not have to do an individual case by case showing. So I think the kind of convoluted answer to your question is that structural error it's a modern construct, but it's probably rooted in determining which elements of a trial are so fundamental that even in an error of harmless error analysis, there are certain errors that we're not willing to let slide.


Caller 1: Okay, thanks.


Nick Marr: Okay. That was a great question. So Robert, seeing no questions right now, [Inaudible 00:19:38] could review the case and the oral arguments. Is there anything else you'd like to add, or if you’d just like to offer some closing remarks and we might close up a little bit early this afternoon.


Prof. Robert Leider:  All right. Well, thank you. I don't have too much more to add to that. I mean, if you look at some of the arguments that were made in Gary's favor in the briefing, a lot of them have to do with concerns that plea bargaining is the modern criminal trial. And so what procedures are necessary to guard what is in essence the modern trial, which is a contract between the prosecutor and the defendant. But even here, I'm still -- as I indicated my prior remarks, I'm still somewhat skeptical that disregarding or reversing any plea on a technical defect, will meaningfully change the plea colloquy dynamic. I mean, I think there are legitimate concerns with the way that modern plea bargaining and the modern criminal justice system that adjudicate cases. But I'm not sure that Gary's position is really an answer to those problems.


      And I think the Court was also impressed with just the sheer disruptiveness that the automatic reversal role would cause. It's noted felon in possession cases by themselves are 10% of the federal docket. It's just extraordinary fraction for a single offense. And the court I think is not willing to see do overs in any case that was pending on appeal. Let alone having to sort out all the habeas and collateral review that would be required if it's suddenly put this whole area in doubt. Especially since in the mine run of cases, people are going to know that – defendants are going to know their status. You know, for every person convicted of say driving under the influence of alcohol, where it was ambiguous, whether the maximum sentence was one year or a year and a half or two years, there are many, many, more defendants who have been convicted of a very serious violent crimes or drug trafficking crimes.


      And I think the Court is reluctant to give those defendants a windfall just for this kind of technicality. Now, Fisher argued that it wouldn't necessarily result in a windfall. A lot of these defendants would plead out anyway, but that's not always true. And the longer proceedings go on, the more likely it is that evidence gets lost or witnesses forget or disappear. So it would have had a very disrupted impact. And I think what the Court is saying is that going forward the Rehaif rule be applied but then it's not willing to jeopardize all the previous convictions, especially in cases where the vast majority of cases in which the Rehaif error caused no prejudice whatsoever to the defendant.


Nick Marr:  Thank you very much, Robert. [Inaudible 00:28:58] That seems like it as good of a place as any. Thanks very much for your time and remarks. On behalf of The Federalist Society, I particularly want to offer you thanks for the benefits of your valuable time and expertise this afternoon. Of course, some audience are calling in, some great question we got. Just a reminder, we welcome your feedback by email at Also check your email accounts and our website for announcements about upcoming Teleforum calls like this one, Supreme Court arguments and decision coverage and registration for Zoom panel discussions. Until next time, thank you all for joining us. We are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at