PUBLISHED

                                                                      FILED: July 7, 2020

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                    ___________________

                                         No. 18-4578
                                    (3:17-cr-00809-JFA-1)
                                    ___________________

UNITED STATES OF AMERICA

             Plaintiff - Appellee

v.

MICHAEL ANDREW GARY

             Defendant - Appellant

                                    ___________________

                                         ORDER
                                    ___________________

       Appellee filed a petition for rehearing en banc, and Appellant filed a response in

opposition. The petition and response were circulated to the full Court. Judge Richardson

recused himself from the case. No member of the Court requested a poll on the petition

for en banc review. Therefore, the petition for rehearing en banc is denied.

       Entered at the direction of Chief Judge Gregory.

                                           For the Court

                                           /s/ Patricia S. Connor, Clerk
WILKINSON, Circuit Judge, with whom Judges NIEMEYER, AGEE, QUATTLEBAUM,

and RUSHING join, concurring in the denial of rehearing en banc:

       I concur in the denial of rehearing en banc for one reason and one reason only. The

panel’s holding is so incorrect and on an issue of such importance that I think the Supreme

Court should consider it promptly. Any en banc proceedings would only be a detour.

Many, many cases await the resolution of this question.

       This court’s decision is far-reaching in its implications. It not only creates a circuit

split of yawning proportions, but also an equally profound schism with the Supreme

Court’s whole approach to error review and remediation. Is it eight—or nine—circuits that

disagree with us? I have lost count, but the ranks are growing. ∗

       In Rehaif v. United States, 

, 2194 (2019), the Supreme Court held

that the government must prove that a defendant knew about his felony status as an element

of an 18 U.S.C. § 922(g) offense. Now our court holds that Rehaif error is a structural error

that is not amenable to harmless or to plain-error review. United States v. Gary, 954 F.3d


       ∗
         Until now, no other circuit has treated a Rehaif error as structural when applying
plain-error review. Rather, the circuits have uniformly held that a defendant cannot show
an effect on his substantial rights where the evidence shows that the defendant knew of his
status as a felon at the time of his gun possession. See United States v. Burghardt, 

, 403-05 (1st Cir. 2019); United States v. Balde, 

, 97 (2d Cir. 2019);
United States v. Denson, 774 F. App’x 184, 185 (5th Cir. 2019); United States v. Hobbs,

, 857-58 (6th Cir. 2020); United States v. Williams, 

, 973-75 (7th
Cir. 2020); United States v. Hollingshed, 

, 415-16 (8th Cir. 2019); United
States v. Fisher, 796 F. App’x 504, 510-11 (10th Cir. 2019); United States v. McLellan,

, at *6-7 (11th Cir. May 6, 2020); see also United States v. Benamor,

, 1189 (9th Cir. 2019). Indeed, the Fifth Circuit has only recently rejected
this court’s structural error holding. United States v. Hicks, – F.3d –, 

,
at *2 (5th Cir. May 8, 2020).

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194, 200 (4th Cir. 2020). Facts are so often the foundation of law. But the panel opinion,

put simply, takes flight from the facts in each and every case.

       The retreat from the facts is especially egregious here. There is not a chance that

Gary’s claim would survive the third or fourth prongs of Olano or satisfy the reasonable-

probability test of Dominguez Benitez. Prior to the instant felon-in-possession offenses,

Gary was convicted of second-degree burglary and two counts of assault, each punishable

by more than one year in prison. For these offenses, he spent upwards of nine years in

prison. Moreover, at his sentencing hearing in 2017, Gary admitted that he knew it was

wrong for him to have a firearm. The Rehaif error could thus not have affected his

substantial rights because there is no possibility, not to mention a reasonable probability,

that Gary would not have pled guilty had he been informed of that which the government

could so easily have proven. And as to the fourth prong of Olano, the question simply

answers itself. In other words, considering the facts here, nothing about Gary’s Rehaif

claim has so much as a grain of merit.

       The Supreme Court has made clear that structural errors are few and far between.

This point has been made not once but repeatedly. The Court has found structural error

only in a “very limited class of cases,” Johnson v. United States, 

, 468 (1997),

and has instead “adopted the general rule that a constitutional error does not automatically

require reversal of a conviction,” Arizona v. Fulminante, 

, 306 (1991).

       The narrow band of structural errors is distinct because they inherently taint the

integrity of a trial from beginning to end. See, e.g., United States v. Gonzalez-Lopez, 

, 150 (2006) (denial of right to counsel); Sullivan v. Louisiana, 

, 281-
                                             3
82 (1993) (defective reasonable-doubt instruction); Vasquez v. Hillery, 

, 263-

64 (1986) (racial discrimination in grand jury selection); Tumey v. Ohio, 

, 535

(1927) (lack of impartial judge).

       Structural errors are to be limited, in other words, to the kind of error that by itself

invalidates the criminal proceeding. See Weaver v. Massachusetts, 

, 1907

(2017) (defining structural error as one that “affects the framework within which the trial

proceeds, rather than being simply an error in the trial process itself”) (internal markings

and quotation omitted). A denial of the right to counsel, racial bias in criminal justice

proceedings, and an infirm reasonable doubt instruction are easily identified as the category

of error that sweeps across any particular offense, and speaks overarchingly to the kind of

flaws that any citizen would instinctively know to be both unlawful and unfair. Put

otherwise, structural errors are innately infectious, necessarily impugning each part of a

trial, rather than potentially consequential, depending on the facts and circumstances of a

given case. Because such errors lack a ready way to quantify their impact, they defy

analysis by harmless or plain-error review.

       A Rehaif error comes nowhere near this level. It is not even close. Rather, it belongs

with the large category of errors that the Court has deemed non-structural, in recognition

of the fact that the illusory search for perfection in the criminal justice process can so easily,

as the saying goes, become the enemy of the good. See, e.g., Delaware v. Van Arsdall,

, 681-82 (1986) (holding that a restriction on defendant’s ability to cross-

examine witness in violation of Sixth Amendment was non-structural error); United States

v. Hasting, 

, 509 (1983) (same for improper remark regarding defendant’s
                                                4
silence at trial in violation of Fifth Amendment); Chambers v. Maroney, 

, 52-

53 (1970) (same for admission of evidence taken in violation of Fourth Amendment); see

also 

(collecting cases). To borrow from the Van Arsdall

Court, these cases stand for “the principle that the central purpose of a criminal trial is to

decide the factual question of the defendant’s guilt or innocence, and promote[] public

respect for the criminal process by focusing on the underlying fairness of the trial rather

than on the virtually inevitable presence of immaterial error.” Van 

.

       Nor does Rehaif error gain admittance into the gallery of structural error because it

pertains to an element of a charge. I intend no disrespect to the Supreme Court’s fine

decision in Rehaif to note that the appearance of what our court now terms a structural

defect has come rather late in the day, after many decades of prior practice to the contrary—

a fact that should weigh not only against retroactive review, but against recognition of the

error as a structural one as well.

       To that end, the Supreme Court has plainly resisted the linkage between elements

errors and structural error. Take Neder v. United States, for example. 

(1999).

There, the trial court incorrectly omitted from the jury instructions an element of the

offense charged against Neder. The Court squarely rejected the argument that such an error

was structural, and instead reviewed for harmless error because “an instruction that omits

an element of the offense does not necessarily render a criminal trial fundamentally unfair

or an unreliable vehicle for determining guilt or innocence.”

Indeed, time and

again, the Court has applied harmless error review to elements errors. See, e.g., 

; California v. Roy, 

, 5 (1996); Yates v. Evatt, 

,
                                              5
393 (1991); Carella v. California, 

, 266 (1989); Pope v. Illinois, 

,

502-503 (1987).

       Moreover, there are many reasons to think that the guilty plea context is an

especially poor one for recognizing an elements error as structural. Indeed, the Court has

already decided as much. See Henderson v. Morgan, 

, 645-46 (1976)

(surveying factual record before vacating defendant’s plea on the ground that he was

misinformed as to a key element of the charge against him); Bousley v. United States, 

, 622-23 (1998) (applying fact-bound exceptions for excusing procedural default

to defendant’s claim that his guilty plea was invalid because he was misinformed as to the

government’s burden of proof at time of his plea).

       In fact, the guilty plea context is one in which the Court has assiduously resisted

automatic vacatur of a plea. The standard for vacatur is quite fact-dependent. It asks

whether there is a “reasonable probability” that absent the error the defendant would not

have entered the plea. United States v. Dominguez Benitez, 

, 83 (2004); see

also

n.6 (noting single Rule 11 error “not colorably structural”). I see no reason

whatsoever why this standard, so widely adopted and so pervasively relied upon, should

be rendered nugatory on the basis of the kind or character of the error asserted rather than

its impact on the particular proceeding. The Supreme Court’s standard stands in stark

contrast to the novel standard adopted in this case. The reasonable probability standard is

conscientiously attentive to facts. Our court’s opinion is wholly oblivious to them.

       Furthermore, the guilty plea context is one where the Supreme Court, again in

contrast to this court, has been especially attentive to finality. United States v. Davila, 569
                                              

, 608 (2013) (stressing the “particular importance of the finality of guilty pleas”)

(internal markings and quotation omitted). The reason for the finality of guilty pleas could

not be more evident or obvious. Not only are they uniquely susceptible to buyer’s remorse;

they rest on a well-understood tradeoff—one where the defendant receives the certainty of

present benefits in exchange for forgoing the possibility of some future benefit down the

road. Rehaif is exactly the sort of future decisional benefit a routine guilty plea ordinarily

waives. The panel opinion now seeks to undo all this. For if Rehaif is deemed structural,

it could be used to overturn a wealth of pleas at some future point in time, given that the

courts are more likely to give structural errors retroactive application.

       The costs to criminal justice of the panel’s ruling are immense. If they were offset

by some gain in the administration of justice, that would be one thing. But, as Gary’s case

shows, the vast majority of defendants who will seek to take advantage of a structural

Rehaif error are perfectly aware of their felony status. Felony status is simply not the kind

of thing that one forgets. It is, after all, a § 922(g) offense that one has pled guilty to, a

plea that would wholly lack a factual basis before or after Rehaif if the defendant were not

a felon. For those very few who claim plausibly to be unaware of their felony status, the

reasonable probability standard in Dominguez-Benitez stands ready to pick them up.

       I hesitate to raise such a mundane consideration as the resources available to judges

and litigants in discussing this issue, but it remains the fact that the resources of our system

are finite. The erosion of finality in the context of such basic criminal offenses as § 922(g)

and 18 U.S.C. § 924(c) will strain the resources of the lower federal courts in no small

measure.    Not only that, but prosecutorial resources will be tested to the limits by
                                               7
multitudes of defendants seeking to withdraw and renegotiate their pleas. Not only that,

but the resources of public defenders will be tested as well, as they try to balance their

obligations to existing clients who face serious charges and the legions of defendants who

seek to redo past bargains. We are adding not just one, but two major burdens to our

system. The first arises from the sheer volume of guilty pleas. The second arises from the

fact that § 922(g) is at or near the top of our most frequently charged criminal offenses.

       In many instances, the reform of the criminal justice system is salutary. The First

Step Act is an example of a long-overdue reform, see Pub. L. No. 115-391, 132 Stat. 5194

(2018), notwithstanding the fact that it adds to the business of our justice system. But there

are limits to the extent that each new twist and turn in decisional law should spark a crisis

of volume in criminal justice administration.

       Volume diminishes those qualities of conscientious deliberation for which, I

suspect, each of us who plays some part in criminal justice proceedings would like to be

known. This court’s ruling is unfortunate in so many ways. I respect the decisions of my

colleagues, but I do hope that the Supreme Court will undo the error here and align us with

the other circuits in our country.




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