United States v. Charles Williams ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1358
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CHARLES WILLIAMS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17‐cr‐00446‐1 — Virginia M. Kendall, Judge.
____________________
ARGUED DECEMBER 12, 2019 — DECIDED JANUARY 10, 2020
____________________
Before BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. The Supreme Court’s recent decision
in Rehaif v. United States, 139 S. Ct. 2191 (2019), upset what was
once a seemingly settled question of federal law. The Courts
of Appeals had unanimously concluded that 18 U.S.C.
§ 922(g), which prohibits several classes of people from pos‐
sessing a firearm or ammunition, required the government to
prove a defendant knowingly possessed a firearm or ammu‐
nition, but not that he knew he belonged to one of the
2 No. 19‐1358
prohibited classes. See, e.g., United States v. Lane, 267 F.3d 715,
720 (7th Cir. 2001). The Supreme Court in Rehaif corrected this
misinterpretation and held that under 18 U.S.C. §§ 922(g),
924(a)(2), the government must show “that the defendant
knew he possessed a firearm and also that he knew he had the
relevant status when he possessed it.” 139 S. Ct. at 2194.
Charles Williams had already pleaded guilty to possessing a
firearm after a felony conviction when the Court issued Rehaif,
and his plea reflected the law as it was in this Circuit before
that decision. He seeks now, for the first time on direct appeal,
to withdraw his plea. We conclude that he bears the burden
of showing that his erroneous understanding of the elements
of § 922(g) affected his substantial rights—his decision to
plead guilty—before he may do so. He has failed to carry that
burden, so we affirm the judgment.
I.
In 1998, an Illinois state court convicted Williams, then a
teenager, of first‐degree murder and sentenced him to thirty
years’ imprisonment. Williams was paroled in 2008, but had
his parole revoked for the last few months of 2011 based on a
domestic battery charge. He pleaded guilty to this offense and
served 180 days in jail. Because of his murder conviction, the
court could have sentenced him to up to three years’ impris‐
onment. See 720 ILCS 5/12‐3.2(b); 730 ILCS 5/5‐4.5‐45.
Williams had no other criminal history until 2017, when
he traded cocaine to his employer for a firearm. His employer
cooperated with the government and conducted a controlled
buy to purchase the gun back from Williams. For this transac‐
tion, a grand jury indicted Williams on one count of posses‐
sion of a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2).
No. 19‐1358 3
Williams pleaded guilty without a plea agreement, and
the district court conducted a thorough colloquy to determine
whether this plea was knowing and voluntary. The court con‐
firmed Williams’s admission that he possessed a firearm; that
prior to his possessing that firearm, it had traveled in inter‐
state commerce; and that he had been convicted of a crime
punishable by a term of imprisonment exceeding one year.
Nothing at the plea colloquy revealed definitively whether
Williams had known, at the time he possessed the gun, that
he had been so convicted. The district court later sentenced
him to 96 months’ imprisonment, a year below the bottom of
his Guidelines range.
Four months later, the Supreme Court decided Rehaif and
held that an element of a conviction under 18 U.S.C. §§ 922(g),
924(a)(2), is the defendant’s knowledge of his status (at least
for felons and aliens illegally in the United States). 139 S. Ct.
at 2200. For Williams, that means the government would have
needed to prove—or he to admit—that he knew he had “been
convicted in any court of[] a crime punishable by imprison‐
ment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).
II.
Williams asks this court to vacate his conviction and allow
him to withdraw his guilty plea. Given the timing of Rehaif,
Williams never moved to withdraw his plea in the district
court, so we review his request to do so now only for plain
error. Fed. R. Crim. P. 52(b); United States v. Vonn, 535 U.S. 55,
59 (2002); United States v. Zacahua, 940 F.3d 342, 344 (7th Cir.
2019). Plain error has four elements: (1) there was an error, (2)
the error is clear and obvious, (3) the error affected the de‐
fendant’s substantial rights, and (4) the error seriously affects
the fairness, integrity, or public reputation of judicial
4 No. 19‐1358
proceedings. Zacahua, 940 F.3d at 344. The parties agree that,
under Rehaif, the district court’s failure to inquire into Wil‐
liams’s knowledge of his status or to confirm a factual basis
for that element of the offense was an obvious error. See Hen‐
derson v. United States, 568 U.S. 266, 269 (2013) (holding that
plain error is determined based on law at time of review).
They dispute whether the error affected Williams’s substan‐
tial rights and the integrity of judicial proceedings.
The defendant ordinarily bears the burden of persuasion
on the question whether an error affected substantial rights.
Molina‐Martinez v. United States, 136 S. Ct. 1338, 1348 (2016);
United States v. Olano, 507 U.S. 725, 734 (1993). This is true
even for errors going to the validity of a guilty plea. United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004); Vonn, 535
U.S. at 59. To meet this burden, “a defendant who seeks re‐
versal of his conviction after a guilty plea, on the ground that
the district court committed plain error under Rule 11, must
show a reasonable probability that, but for the error, he would
not have entered the plea.” Dominguez, 542 U.S. at 83.
Williams argues that he should not be subject to the stand‐
ard in Dominguez. He proposes that we adopt a new test that
he calls “the supervening‐decision doctrine,” under which the
government would bear the burden of proving that an error
did not affect the defendant’s rights (i.e., that it was harmless)
if a supervening decision reverses settled precedent and alters
the elements of an offense to which he pleaded guilty.
Williams identifies United States v. Washington, 12 F.3d
1128 (D.C. Cir. 1994), as the basis for this rule. The D.C. Circuit
there applied something called the “supervening‐decision
doctrine,” but it bears little resemblance to Williams’s pro‐
posal. In Washington, the D.C. Circuit found the district court’s
No. 19‐1358 5
error affected Washington’s substantial rights but neverthe‐
less affirmed because the error “was not ‘plain’ or ‘obvious’
under current law at the time of trial.” Id. at 1138. The super‐
vening‐decision doctrine provided an escape hatch for this
latter conclusion: the court would correct errors that were
plain only at the time of appeal, but only if an objection would
have been frivolous (and Washington’s would not have been).
Id. at 1138–39. The Supreme Court has since obsoleted this es‐
cape hatch—courts now must always analyze whether an er‐
ror is plain based on the law at the time of review. Henderson,
568 U.S. at 269. The supervening‐decision doctrine, thus,
serves no purpose here. Cf. United States v. David, 83 F.3d 638,
646 & n.11 (4th Cir. 1996) (adopting plain‐at‐time‐of‐review
rule for the same reasons the D.C. Circuit created its doctrine).
The Second Circuit, however, has adopted Williams’s pro‐
posal, although under the name of the “modified plain error
rule” instead. Under that doctrine, the overturning of settled
precedent shifts the burden to the government to prove that
any error was not prejudicial. See United States v. Viola, 35 F.3d
37, 42 (2d Cir. 1994). The Second Circuit has reserved the
question whether this modified rule is consistent with the Su‐
preme Court’s decision in Johnson v. United States, 520 U.S. 461(1997). See, e.g., United States v. Botti, 711 F.3d 299, 309 (2d Cir.
2013). It did so most recently in United States v. Balde, 943 F.3d
73, 96 n.6 (2d Cir. 2019), another case involving a Rehaif error.
The Second Circuit did not need to decide who carried the
burden of persuasion because Souleymane Balde had shown
an effect on substantial rights even if he had the burden. Balde
had entered a guilty plea conditioned on his right to appeal
the district court’s determination that he was “an alien … ille‐
gally or unlawfully in the United States” under 18 U.S.C.
6 No. 19‐1358
§ 922(g)(5)(A). 943 F.3d at 79. Balde’s immigration status was
complicated. The government had granted him advanced pa‐
role to leave the country while his request for adjustment of
status was pending, but it revoked that parole and denied ad‐
justment while he was overseas. Shortly after he returned, the
government ordered him removed, but it could not effect his
deportation after his foreign passport expired. Id. at 78–79. Be‐
cause Balde’s status was “hotly contested” (he had argued,
unsuccessfully, that he was either legally present or not “in”
the United States) there was a “significant possibility” that he
might not be guilty at all. Id. at 97. This possibility more than
carried his burden of demonstrating an effect on his substan‐
tial rights and the integrity of judicial proceedings. Id. at 98.
We cannot so easily avoid the issue of burden placement,
because the record here is nearly silent on Williams’s
knowledge of his uncontested felon status. Williams argues
that this silence should favor him because the Dominguez
Court emphasized that “the violation claimed was of Rule 11,
not of due process.” 542 U.S. at 83. He contends (and the gov‐
ernment does not dispute) that a misunderstanding of the el‐
ements of an offense, shared by the defendant, the lawyers,
and the judge, is evidence of an unknowing and involuntary
plea that is not just a violation of Rule 11, but also of due pro‐
cess. See, e.g., Bousley v. United States, 523 U.S. 614, 618–19
(1998); Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).
This difference, he argues, mandates a modified rule.
Reframing the error as a due process violation provides no
reason to shift the burden of persuasion onto the government.
Dominguez emphasized the difference between Rule 11 and
due process not in discussing the placement of the burden,
but in the difficulty of meeting that burden. Dominguez, 542
No. 19‐1358 7
U.S. 74, 82–83 (“[T]he burden of establishing entitlement to
relief for plain error is on the defendant claiming it, and for
several reasons, we think that burden should not be too easy
for defendants ….”). These are different questions. See Molina‐
Martinez, 136 S. Ct. at 1348 (drawing this distinction). As the
Second Circuit has hinted, shifting the burden to the govern‐
ment is inconsistent with the Supreme Court’s statement in
Johnson that the judiciary has “no authority” to make excep‐
tions to Rule 52(b). 520 U.S. at 461. Rule 52(b) states “[a] plain
error that affects substantial rights may be considered even
though it was not brought to the court’s attention.” The text
of the Rule mandates that the defendant prove the error did
affect substantial rights; it is not the government’s burden to
prove that it did not. See Olano, 507 U.S. at 734–35 (explaining
textual origins of this burden). The Rule applies just as well to
constitutional errors as to any other. The Supreme Court held
as much in United States v. Marcus, 560 U.S. 258 (2010), which
abrogated a different Second Circuit rule altering the plain‐
error burden. See id. at 263. The Second Circuit’s rule there
was based on what it perceived as a violation of the Ex Post
Facto Clause, but the Court clarified that it was, if anything, a
violation of the Due Process Clause. Id. at 264. “[H]owever
Marcus’ claim is labeled,” though, there was no reason not to
require “a showing of individual prejudice.” Id. at 264–65.
We therefore agree with the First Circuit that the burden
of persuasion rests on the defendant seeking to withdraw his
plea based on a Rehaif error. United States v. Burghardt, 939
F.3d 397, 405 (1st Cir. 2019); see also United States v. Green, __
F.3d __, No. 18‐3589, 2019 WL 7198504, at *7 n.4 (8th Cir. Dec.
27, 2019). To meet this burden, a defendant must show a rea‐
sonable probability that he would not have pleaded guilty if
he knew of Rehaif. In reviewing the record, we “can fairly ask
8 No. 19‐1358
… what he might ever have thought he could gain by going
to trial,” though we will not “second‐guess a defendant’s ac‐
tual decision,” if the record shows it is reasonably probable
that he would have taken a chance at trial, even foolishly.
Dominguez, 542 U.S. at 85.
This burden is not, as Williams contends, insurmountable
in all cases. Some defendants’ likelihood of acquittal—and by
extension their willingness to plead guilty—shifted substan‐
tially after Rehaif. Cf. United States v. Davies, 942 F.3d 871, 874
(8th Cir. 2019) (vacating jury conviction for defendant who
possessed firearm after felony conviction but before sentenc‐
ing). The Supreme Court even gave a possible example: “a
person who was convicted of a prior crime but sentenced only
to probation.” Rehaif, 139 S. Ct. at 2198 (citing United States v.
Games‐Perez, 667 F.3d 1136, 1138 (10th Cir. 2012)). The govern‐
ment might have some trouble proving beyond a reasonable
doubt that this probationer knew he had been convicted of a
crime punishable by a term of imprisonment exceeding one
year. A reviewing court could therefore infer that it is reason‐
ably probable he would not have pleaded guilty (or pleaded
quite as easily) after Rehaif—especially given that the reason‐
able probability standard is not the equivalent of “a require‐
ment that a defendant prove by a preponderance of the evi‐
dence that but for error things would have been different.”
Dominguez, 542 U.S. at 83 n.9.
We need not decide a hypothetical like this, though, be‐
cause Williams’s case could hardly be further from it. Putting
to one side his felony domestic battery conviction, Williams
served a term of imprisonment longer than a year—than a
decade even—for murder before he possessed the firearm. In
that respect, this case is far easier than Burghardt, where the
No. 19‐1358 9
record did not reveal definitively if the defendant had ever
spent more than a year in prison on any one of his convictions.
939 F.3d at 404 & n.4. Unlike the hypothetical probationer or
the defendant in Davies, someone in Williams’s position can‐
not plausibly argue that he did not know his conviction had a
maximum punishment exceeding a year. A jury might well
believe a defendant was ignorant of sentencing law to which
he was never subjected. Williams, though, would have to con‐
vince a jury that he either had no knowledge of where he
spent twelve years of his life, or that he honestly believed Illi‐
nois had imprisoned him eleven years more than the maxi‐
mum punishment for first‐degree murder—a crime that even
the most legally ignorant would know is subject to substantial
penalties well beyond a year of imprisonment. Indeed, the or‐
dinary defendant would want to avoid letting the jury know
he is a convicted murderer at nearly any cost. By putting his
knowledge at issue, though, Williams would be allowing the
government to introduce evidence about the nature of his
conviction that would otherwise be too prejudicial. See Old
Chief v. United States, 519 U.S. 172, 190 (1997). The chance of a
Rehaif‐based argument succeeding on this record is nil. Cf.
United States v. Reed, 941 F.3d 1018, 1022 (11th Cir. 2019) (find‐
ing no effect on substantial rights in appeal of jury conviction
because defendant admitted he served eighteen years in
prison); United States v. Hollingshed, 940 F.3d 410, 415–6 (8th
Cir. 2019) (same for defendant who served four years); United
States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019) (same for
defendant who served five years for felon‐in‐possession con‐
viction).
This lack of a plausible ignorance defense means that any
§ 922(g) defendant who served more than a year in prison on
a single count of conviction will face an uphill battle to show
10 No. 19‐1358
that a Rehaif error in a guilty plea affected his substantial
rights—at least on a silent record. Williams faces an even
steeper climb because his record is not truly silent, and the
little evidence available further supports the conclusion that
he would have decided to plead guilty even if he had been
informed of the government’s burden of proof. See Vonn, 535
U.S. at 74 (permitting court to review entire record on plain‐
error review). In his sentencing memorandum, Williams ex‐
plained how his status as a felon made it difficult for him to
obtain work with anyone other than his employer‐turned‐in‐
formant—essentially conceding he knew of his status when
he possessed the gun. His sentencing memorandum also em‐
phasized his confession, cooperation with the government,
and acceptance of responsibility—themes that Williams him‐
self repeated in his allocution, and that the district court high‐
lighted in imposing its below‐Guidelines sentence. These
facts lead us to doubt Williams’s assertion that he would risk
a longer sentence for a miniscule chance of acquittal at trial.
Again, this case is easier than Burghardt, where the defendant
received the minimum sentence and may not have benefited
from acceptance of responsibility at all. See 939 F.3d at 405 &
n.5.
Williams insists that it is his right to take a chance at trial,
even if he is all but guaranteed to be convicted and sentenced
to a longer term of imprisonment. He is, of course, correct. It
was his choice whether to go to trial, even if doing so would
have been foolish, Dominguez, 542 U.S. at 85, but he did not
make that choice when it was first offered to him. Because he
has not explained how Rehaif has made going to trial a less
foolish choice, his only other option is to explain why Rehaif
has made him choose more foolishly. He has not done so. Wil‐
liams has not even asserted in his briefs that he would not
No. 19‐1358 11
have pleaded guilty if he had known about Rehaif. He says
that he wishes to withdraw his plea but does not explain why
Rehaif caused that desire (only why it should make it easier
for him to succeed). Williams points to nothing, and we see
nothing, in the record from which we can infer that he would
have been more likely to throw a “Hail Mary,” Lee v. United
States, 137 S. Ct. 1958, 1967 (2017), or “roll the dice,” DeBartolo
v. United States, 790 F.3d 775, 778–80 (7th Cir. 2015), after Re‐
haif than before it. Therefore, Williams has not shown the Re‐
haif error affected his substantial rights or the fairness, integ‐
rity, or public reputation of judicial proceedings, as required
for this court to correct a plain error.
Williams’s solution to this unfavorable record is to ask for
a limited remand to provide additional evidence. We adopted
a limited remand procedure in United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), because it was impossible to deter‐
mine whether a district court would have sentenced a defend‐
ant differently in light of United States v. Booker, 543 U.S. 220(2005), as “sentencing is not either‐or; it is the choice of a point
within a range.” 401 F.3d at 482. The withdrawal of plea, how‐
ever, is an “either‐or” determination that can be—and has
been—resolved on the existing record. We leave for another
day whether limited remand or vacatur is the appropriate
remedy for a closer case.
AFFIRMED