United States v. Gary

LII note: the oral arguments in United States v. Gary are now available from Oyez.


Is a criminal defendant who pleads guilty to possession of a firearm by a felon automatically entitled to plain-error relief if the district court failed to advise the defendant that a necessary element of the offense was knowledge of his status as a felon?

Oral argument: 
April 20, 2021

This case asks the Supreme Court to decide whether a defendant who has pled guilty to the possession of a firearm should receive automatic plain-error relief if the defendant was not advised that an element of the offense is that he knew of his status as a felon. Petitioner United States argues that the guilty plea should not be reversed because plain-error review applies and insists that Respondent did not make the requisite showing of case-specific prejudice. Respondent Michael Andrew Gary counters that the guilty plea should be reversed because plain-error review does not apply in this case and that in the event that it does apply, case-specific prejudice is not required due to the error’s classification as “structural.” The outcome of this case will affect the obligations and strategies of criminal defendants and prosecutors, as well as the burden on the judicial system.

Questions as Framed for the Court by the Parties 

Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.


On January 17, 2017, Michael Andrew Gary, who had previously been convicted of a felony, was discovered with a gun in his vehicle following a traffic stop. United States v. Gary at 2. Gary was charged with being a felon in possession of a firearm and subsequently released on bond. Id. at 3. Five months later, officers encountered Gary in a parking lot and, upon searching his vehicle, discovered a stolen gun, which Gary admitted to possessing. Id. Gary was again arrested and charged with possession of a stolen handgun. Id. As a result of this incident, Gary was indicted by a federal grand jury in the United States District Court for the District of South Carolina. Id.

To resolve the federal indictment, Gary opted to plead guilty in district court to two counts of possession of a firearm and ammunition by a convicted felon. Id. at 3. During his plea colloquy, the prosecution informed Gary of the facts relevant to the charges, while the court informed him of the elements of the charged offenses that the prosecution would need to prove at trial. Id. Regarding the mens rea element of knowledge, the court instructed Gary that the prosecution would only need to show that he voluntarily and intentionally possessed an object that he knew to be a firearm. Id. at 4. The court then accepted Gary’s guilty plea and sentenced him to 84 months in prison. Id. Gary appealed his sentence to the United States Court of Appeals for the Fourth Circuit. Id.

While his appeal was pending, the Supreme Court of the United States decided the case Rehaif v. United States, which held that the mens rea for a felon-in-possession offense required proof that the defendant knew of his status as a felon when in possession of the firearm. Id. at 4. Gary then filed a letter to the Court of Appeals for the Fourth Circuit, arguing that the Rehaif decision was relevant to his appeal because the district court had not informed him that knowledge of his felony status at the time of possession was a necessary element of the crime charged. Id.

The Court of Appeals for the Fourth Circuit agreed to consider Gary’s challenge to his conviction and requested that Gary and the United States government submit supplemental briefing on what impact, if any, the Rehaif decision should have on Gary’s case. Id. at 5. The court determined that the district court’s failure to inform Gary of the knowledge element of the charged offense constituted a reversible error under Rehaif and vacated Gary’s guilty plea. Id. at 5, 21.

On October 5, 2020, the United States petitioned the Supreme Court for a writ of certiorari, which the Court granted on January 8, 2021.



The United States argues that Federal Rule of Criminal Procedure 52(b)’s plain-error review applies to Rehaif errors, or errors in which a trial court found that a defendant had unlawfully possessed firearms under 18 U.S.C. 922(g) without also determining whether the defendant knew of their status as a felon under the statute. Brief for Petitioner, United States at 7, 25. The United States contends that the Court does not have the jurisdiction to make an exception to Rule 52(b) for Rehaif errors, noting that the Court previously stated in Johnson v. United States, that an exception to Rule 52(b) was “an exception which [the Court] ha[s] no authority to make.” Id. at 27.

The United States further argues that Rehaif errors do not qualify for an exception to plain-error review because Rehaif errors are not “structural.” Id. at 28. Firstly, the United States notes that structural errors are only found in a few limited cases including “denial of counsel of choice, denial of self-representation, denial of a public trial, and denial of a reasonable-doubt instruction.” Id. at 29. The United States argues that Rehaif errors do not meet any of the features used to identify an error as structural because structural errors are typically difficult to measure, have fundamentally unfair results, or exist in cases where the right is created to protect the defendant from an error besides wrongful conviction. Id. at 30–31. Here, the United States notes, the error can be measured using the evidence, the admission, and the benefits of pleading guilty. Id. at 31. The result of Rehaif errors, the United States argues, is not always fundamentally unfair because the degree of harm varies based on the facts of the case. Id. at 32. The United States further contends that Rehaif errors do not interfere with a defendant’s autonomy because the decision to make a guilty plea is still the defendant’s even if an error occurs, further illustrating that Rehaif errors are not structural. Id. at 33. Additionally, the United States argues that Rehaif errors that a defendant does not object to at the trial level are subject to the requirements of plain-error review even if they are structural errors. Id. at 34. While the United States acknowledges that the Court has never addressed this specific issue, the United States maintains that the term “structural error” does not hold special significance requiring a court to avoid plain-error review, and that guilty pleas should generally be honored in the interest of finality. Id. at 34–35.

Gary counters that Rule 52(a)’s harmless-error review should apply in this case rather than Rule 52(b)’s plain-error review. Brief for Respondent, Michael Andrew Gary at 8–9. Gary notes that he had not made an objection in district court because at the time, courts did not require proof “that a defendant knew of his status as a person barred from possessing a firearm.” Id. at 8. Since the Court created this requirement in Rehaif, Gary argues that he should be able to raise this argument on appeal while using the ordinary harmless-error review rather than plain-error review. Id. at 11. Gary further contends that it would be unfair to penalize defendants for failing to object when the law at the time would preclude any relief on a particular claim. Id. at 12. Gary notes that plain-error review is designed to only deal with errors “so obvious” that trial judges and prosecutors were neglectful in not addressing them even without any objection. Id. at 16. Gary further acknowledges that it makes sense to require an objection at the trial level in cases in which there is a circuit split, but he distinguishes circuit splits from cases in which all the circuits have rejected the argument. Id. at 16.

Gary also counters that a Rehaif error is a structural error because it is difficult to measure the resulting harm, they always have fundamentally unfair outcomes, and the right at issue is meant to protect an interest other than wrongful conviction. Id. at 22. The resulting harm, Gary argues, is difficult to measure because it is impossible to know whether the same guilty plea would have occurred if Gary had full knowledge of the elements of the crime. Id. at 29. While the United States argues that harm can be measured using the evidence and admissions at the trial level, Gary contends that the trial record may have been different if he had been correctly informed of the elements of the crime. Id. at 29–30. Gary further argues that Rehaif errors are structural errors because they are fundamentally unfair. Id. at 35. Gary contends that it is fundamentally unfair to enforce an admission for a defendant who did not have notice of a “critical mens rea element of the charged offense” because the defendant will have never understood the charge against him. Id. at 34–35. Gary also argues that Rehaif errors are structural errors because they violate the defendant’s right to personal autonomy and that, in his case, the error deprived him of autonomy by preventing him from making a “knowing and voluntary” plea. Id. at 22, 26.


The United States argues that Gary should not receive plain-error relief under Federal Rule of Criminal Procedure 52(b) because Gary cannot show that the court’s failure to advise him of the element of the crime caused him prejudice or seriously affected the fairness of the proceeding. Brief for Petitioner at 15–16. The United States notes that in cases in which the defendant does not timely object to an error, the court of appeals engages in plain-error review which requires the defendant to prove that there was a reasonable probability that the proceeding outcome would be different but for the alleged error. Id. at 17. The United States argues that this showing is required even for constitutional errors. Id. at 18. Specifically, the United States contends that Supreme Court precedent establishes that standard appellate review is used for “elements-related plea-colloquy errors” that allegedly violate a defendant’s constitutional rights. Id. at 19. The United States acknowledges that a showing of prejudice would be unnecessary in cases in which plea colloquy is completely absent, but argues that cases in which a court excludes one element from plea colloquy are distinguishable from cases in which a court avoids plea colloquy entirely. Id. at 21–22. Whereas in the latter, appellate courts would have to “‘presume’ a nonexistent waiver of rights in order to affirm the conviction,” the United States notes that in cases where only one element is missing, an appellate court must merely decide whether knowledge of the additional element would have reasonably affected a defendant’s decision. Id. at 22–23. The United States also puts forth that the error does not affect the fairness of the judicial proceedings because Gary was unlikely to win at trial, so honoring his pretrial plea is a fair outcome. Id. at 23–24.

Gary counters that if the plain-error doctrine applies, Gary does not need to make a case-specific showing of prejudice. Brief for Respondent at 40. Gary notes that appellate courts may consider plain errors that “affect[] substantial rights” regardless of whether the issue was raised at the trial level. Id. at 41. Gary argues that structural errors, such as the omission of the element from his plea colloquy, “affect substantial rights” even in cases in which the defendant does not provide a case-specific showing of prejudice. Id. at 42. In support of this, Gary notes that every court of appeals opinion on this issue has ruled that structural errors automatically satisfy the “affects substantial rights” requirement of plain-error review. Id. at 40. Gary also argues that the omission seriously affected the fairness of the proceedings by violating the defendant’s right to take notice of the charge against him. Id. at 43. Gary notes that notice is of fundamental importance for a defendant’s due process rights and, thus, the trial court violated his due process rights by omitting a “crucial” element of the offense from the plea colloquy. Id. at 43–44. Gary further argues that preserving the plea would damage public perception of the courts because Gary was not offered the opportunity to present a defense on the omitted element. Id. If the Court does decide that case-specific prejudice is required, Gary argues that the case should be remanded, so that the Fourth Circuit Court of Appeals can examine whether case-specific prejudice was present. Id. at 46.



The United States asserts that allowing Rehaif errors to escape plain-error review will incentivize defendants to wait until the eleventh hour to raise Rehaif errors. Brief for Petitioner, United States at 43. The United States argues that, because defendants may have been unlikely to convince a jury they were unaware of their felony status, defendants instead may choose to wait to raise that issue until long after their plea, when witness memories and evidence have diminished to the point that prosecutors will no longer be able to prove the crime the defendant previously admitted. Id. Similarly, the United States contends defendants may use this strategy in the hopes that prosecutors will simply drop the charges against them to avoid the hassle of a new trial. Id.

Several former district court judges (“the Judges”), in support of Gary, counter that sitting on objections that were supported by law during trial, such as the Rehaif error was in this case, provides no strategic benefit to the defense. Brief of Amici Curiae Former United States District Court Judges, in Support of Respondent at 10. The Judges argue that this practice of ignoring errors in proceedings as a basis for appeal, known as sandbagging, is only beneficial when the defendant is certain that a reversible error has occurred. Id. Therefore, the Judges contend there is almost no risk that the defense will choose to delay raising an issue when it is unknown when, if ever, the law will change to declare that such an issue was an error. Id.


The United States further contends that refusing to allow plain-error review of Rehaif errors will provide defendants with unjust windfalls. Brief for Petitioner at 38. The United States argues that it is highly unlikely that a defendant who is willing to admit to their felon status would choose to go to trial to contest their knowledge of that status. Id. at 39. Moreover, the United States asserts that defendants who do go to trial often choose to stipulate to their status as felons to avoid evidence of their prior crimes or imprisonment being presented to the jury. Id. Thus, the United States argues that allowing reversal of a conviction under the guise that defendants may have contested whether they knew they were felons would be unfair. Id. at 41.

The National Association of Criminal Defense Lawyers (“NACDL”), in support of Gary, counters that reversal is the just result in Rehaif error cases. Brief of Amicus Curiae National Association of Criminal Defense Lawyers, in Support of Respondent at 12. NACDL asserts that defendants are protected from conviction when the facts alleged (and, in the case of pleas, admitted) do not constitute a crime because conviction requires every element of an offense to be established. Id. NACDL further contends that subjecting Rehaif errors to plain-error review would allow the prosecution to omit necessary elements from plea agreements, so long as they could persuasively hypothesize that the defendant would have pled guilty anyway. Id. at 19–20. Therefore, NACDL argues that such a rule would unfairly advantage prosecutors by alleviating them of their burden to prove every element of a crime beyond a reasonable doubt. Id.


The United States argues that reversals of Rehaif errors would place significant burdens on the judicial system. Brief for Petitioner at 42. The United States asserts that felon-in-possession is one of the most commonly prosecuted federal crimes, accounting for 10% of all cases reported to the United States Sentencing Commission in 2019. Id. Moreover, the United States points out that there are over 80 cases involving Rehaif errors currently pending before appellate courts. Id. Therefore, the United States contends that allowing reversal without plain error in these cases would require the devotion of a significant amount of judicial resources to initiate new proceedings to simply reobtain the same conviction and sentence. Id. at 43.

Law professor Stuart Banner, in support of Gary, contends that it is subjecting Rehaif errors to plain-error review that will burden the courts with unnecessary litigation. Brief of Amicus Curiae Stuart Banner, in Support of Respondent at 16. Banner asserts that such a policy would force defense attorneys to object to every unfavorable ruling, even when such an objection is clearly meritless and bound to be unsuccessful, in order to preserve the issue for appeal should the law change in the future, thus unduly prolonging court proceedings. Id. Additionally, the National Association of Public Defenders, in support of Gary, further contends that requiring defense counsel to make such objections only to be overruled time and time again will cause that attorney to appear incompetent, which will in turn further burden the courts by spurring a variety of motions by defendants seeking new counsel. Brief of Amicus Curiae National Association of Federal Defenders, in Support of Respondent at 23.

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