Argued: September 19, 2019
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr, District Judge. (3:15-cr-00034-RJC-1)
B. Carpenter, FEDERAL PUBLIC DEFENDERS OF WESTERN NORTH
CAROLINA, Asheville, North Carolina, for Appellant.
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Anthony Martinez, Federal Public Defender, FEDERAL PUBLIC
DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North
Carolina, for Appellant.
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING,
AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON,
QUATTLEBAUM, and RUSHING, Circuit Judges.
REHEARING EN BANC
BARBARA MILANO KEENAN, CIRCUIT JUDGE
Lockhart appeals his conviction for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §
922(g)(1), and his mandatory minimum 15-year sentence of
imprisonment imposed under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (ACCA). Lockhart contends that the
magistrate judge plainly erred by failing to advise him
during the Rule 11 plea colloquy of his potential exposure to
the 15-year mandatory minimum sentence. Lockhart asserts that
if he had been properly informed of his sentencing exposure,
there is a "reasonable probability" that he would
not have pleaded guilty. He also argues that the Supreme
Court's intervening decision in Rehaif v. United
States, 139 S.Ct. 2191 (2019), renders his guilty plea
involuntary, because he did not understand the essential
elements of the offense to which he pleaded guilty.
consideration of the parties' arguments, we hold that
Lockhart has established prejudice for purposes of plain
error review. We therefore vacate his conviction and remand
the case to the district court for further proceedings.
September 2014, officers with the Charlotte-Mecklenburg
Police Department in North Carolina responded to a report of
suspicious activity involving individuals in a parked car.
When they arrived at the scene, an officer saw Lockhart
sitting in the driver's seat of the vehicle. The officer
observed Lockhart use his right hand to provide his
identification, "while reaching down by his left leg
with his left hand, where the officer saw the butt of [a] gun
with a magazine clip." The officers recovered the loaded
handgun and an additional magazine from the driver's side
of the car, and the authorities later determined that the
firearm was stolen.
pleaded guilty without a written plea agreement to a single
count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). During the Rule 11
plea colloquy, the magistrate judge asked the government to
"summarize the charge and the penalty." The
government responded that the "maximum penalty"
Lockhart faced was 10 years' (120 months')
imprisonment. At no time during the plea colloquy did the
court or the government clarify that Lockhart's criminal
history could result in a 15-year (180-month) mandatory
minimum sentence under the ACCA.
probation officer prepared a presentence report (PSR), and
recommended sentencing Lockhart as an armed career criminal
under the ACCA based on three prior convictions for North
Carolina robbery with a dangerous weapon. All his convictions
were based on offenses committed in a one-week time period
when Lockhart was 16 years old. In the PSR, the probation
officer explicitly highlighted the error in the plea
colloquy, noting that Lockhart "was informed that his
statutory penalties . . . were not more than ten years[']
imprisonment," but that "based on [Lockhart's]
three prior convictions for violent felonies, [his] statutory
penalties . . . are not less than fifteen years[']
counsel objected to the proposed ACCA designation on the
grounds that (1) Lockhart's North Carolina convictions,
which were consolidated for judgment, should count as a
single ACCA predicate, and (2) an ACCA sentence would violate
the Eighth Amendment because Lockhart was a juvenile when he
committed the offenses. Lockhart did not assert that he
previously had been unaware of his potential ACCA
designation, nor did he seek to withdraw his guilty plea.
overruling the objections of Lockhart's counsel, the
district court concluded that Lockhart qualified as an armed
career criminal under the ACCA and imposed the mandatory
minimum term of 180 months' imprisonment. Following the
court's imposition of sentence, Lockhart's counsel
conferred with the government's counsel and informed the
I'm going back to his plea colloquy. He didn't plead
to 924(e) [ACCA] it was not on the Bill of Indictment. But I
went over it beforehand. So I just want to put it on the
record that he was fully aware of that. I just thought about
government's counsel added, "We just wanted to make
a record of that." The district court did not ask
counsel to elaborate on the issue, and did not confirm with
Lockhart whether he was aware of his potential ACCA exposure
before pleading guilty.
appealed, represented by new appellate counsel. A panel of
this Court affirmed Lockhart's conviction. See United
States v. Lockhart, 917 F.3d 259 (4th Cir. 2019),
vacated by 771 Fed.Appx. 204 (4th Cir. 2019). Upon
Lockhart's request for rehearing, we vacated the
panel's opinion and now consider the case en banc.
Lockhart did not attempt to withdraw his guilty plea in the
district court, we review his plea challenge for plain error.
United States v. McCoy, 895 F.3d 358, 364 (4th Cir.
2018). To succeed under plain error review, a defendant must
show that: (1) an error occurred; (2) the error was plain;
and (3) the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). We retain the
discretion to correct such an error but will do so "only
if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings." United
States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009)
(quoting Olano, 507 U.S. at 732) (internal quotation
argues that if he had known he was facing a 180-month minimum
sentence under the ACCA, rather than the 120-month maximum
stated at the plea hearing, he likely would not have pleaded
guilty. Lockhart asserts that the benefit he gained from
pleading guilty was "so small as to be virtually
non-existent" and, thus, that he would have had a strong
incentive to proceed to a trial in an attempt to avoid the
180-month ACCA sentence. Lockhart separately argues that the
Supreme Court's decision in Rehaif, 139 S.Ct.
2191, issued after the panel opinion in this case,
constitutes an intervening change in the law that requires
vacatur of his guilty plea.
response, the government concedes that the magistrate judge
committed plain error in failing to advise Lockhart of his
correct sentencing exposure. However, the government contends
that this error did not affect Lockhart's substantial
rights, because he has failed to show a "reasonable
probability" that he would not have pleaded guilty if
the court had advised him of his correct sentencing range.
See United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004). The government also asserts that the Supreme
Court's decision in Rehaif does not require that
Lockhart's conviction be vacated.
addressing these arguments, we first consider the magistrate
judge's failure to advise Lockhart of the increased
sentence he faced due to his potential ACCA eligibility. Both
parties aver, and we agree, that the first two prongs of
plain error review on this issue are satisfied. Under Federal
Rule of Criminal Procedure 11, a district court must advise a
defendant of "any maximum possible penalty," as
well as "any mandatory minimum penalty," before
accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(H), (I).
even if a district court is not certain whether a defendant
will qualify for an enhanced sentence under the ACCA, the
court nevertheless must "anticipate the possibility and
explain to [the defendant] the sentence that would be
applicable if he had prior qualifying convictions."
United States v. Hairston, 522 F.3d 336, 340 (4th
Cir. 2008); see also Massenburg, 564 F.3d
at 343 (error was plain when defendant was not advised of
potential ACCA sentence before pleading guilty). As the
Supreme Court has explained:
If the judge told the defendant that the maximum possible
sentence was 10 years and then imposed a sentence of 15 years
based on ACCA, the defendant would have been sorely misled
and would have a ground for moving to withdraw the plea.
United States v. Rodriquez, 553 U.S. 377, 384
(2008). Such erroneous sentencing information given during a
Rule 11 colloquy cannot be cured by contrary information
later contained in a PSR. United States v. ...