Certiorari granted by Supreme Court, January 8, 2021
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`PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 18-4578
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`UNITED STATES OF AMERICA,
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`MICHAEL ANDREW GARY,
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`Plaintiff – Appellee,
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`v.
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`Defendant – Appellant.
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`Appeal from the United States District Court for the District of South Carolina, at
`Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:17-cr-00809-JFA-1)
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`Argued: December 11, 2019
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`Decided: March 25, 2020
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`Before GREGORY, Chief Judge, FLOYD, and THACKER, Circuit Judges.
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`Vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in
`which Judge Floyd and Judge Thacker joined.
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`ARGUED:
` Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
`DEFENDER, Columbia, South Carolina, for Appellant. Alyssa Leigh Richardson,
`OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
`Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, OFFICE OF THE
`UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
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`GREGORY, Chief Judge:
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`Michael Andrew Gary appeals his sentence following a guilty plea to two counts of
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`possession of a firearm and ammunition by a person previously convicted of a felony, in
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`violation of 18 U.S.C. § 922(g)(1). Gary contends that two recent decisions—the Supreme
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`Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), where the Court held
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`that the government must prove not only that a defendant charged pursuant to § 922(g)
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`knew he possessed a firearm, but also that he knew he belonged to a class of persons barred
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`from possessing a firearm, and this Court’s en banc decision in United States v. Lockhart,
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`947 F.3d 187 (4th Cir. 2020), in which this Court considered the impact of Rehaif on a
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`defendant’s guilty plea—require that his plea be vacated.
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`Upon consideration of the parties’ arguments, we hold that Gary’s guilty plea was not
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`knowingly and intelligently made because he did not understand the essential elements of the
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`offense to which he pled guilty. Because the court accepted Gary’s plea without giving him
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`notice of an element of the offense, the court’s error is structural. We therefore vacate his
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`guilty plea and convictions and remand the case to the district court for further proceedings.
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`I.
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`On January 17, 2017, Gary was arrested following a traffic stop for driving on a
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`suspended license. Gary’s cousin, Denzel Dixon, was a passenger in the vehicle. During
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`an inventory search of the vehicle, officers recovered a loaded firearm and a small plastic
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`bag containing nine grams of marijuana. Gary admitted to possession of both the gun and
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`2
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`marijuana and was charged under state law with possession of a firearm by a convicted
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`felon.
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`Five months later, on June 16, 2017, officers encountered Gary and Dixon outside
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`a motel room while patrolling the motel’s parking lot. The officers detected the odor of
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`marijuana, and as they approached, Gary and Dixon entered the back seat of a vehicle.
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`Dixon had a marijuana cigarette in his lap. The men consented to a personal search, and
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`the officers found large amounts of cash on both men and a digital scale in Dixon’s pocket.
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`After receiving permission to search the vehicle, the officers found a stolen firearm,
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`ammunition, “a large amount” of marijuana in the trunk, and baggies inside a backpack.
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`J.A. 105. Gary claimed the gun was his and admitted that he regularly carried a firearm
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`for protection. Dixon claimed ownership of the marijuana. Gary was arrested and charged
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`under state law with possession of a stolen handgun. Gary had, at the time of his arrests, a
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`prior felony conviction for which he had not been pardoned.
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`Gary was indicted in federal court and later pled guilty without a plea agreement to
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`two counts of possession of a firearm and ammunition after having been convicted of a
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`felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).1 During his Rule 11 plea
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`colloquy, the government recited facts related to each of his firearm possession charges.
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`The court also informed Gary of the elements it understood the government would be
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`required to prove if he went to trial: (1) that Gary had “been convicted of a crime
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`punishable by imprisonment for a term exceeding one year;” (2) that he “possessed a
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`1 The state law charges against Gary were nolle prossed.
`3
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`firearm;” (3) that the firearm “travelled in interstate or foreign commerce;” and (4) that he
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`“did so knowingly; that is that [he] knew the item was a firearm and [his] possession of
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`that firearm was voluntarily [sic] and intentional.” J.A. 31. Gary was not informed that an
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`additional element of the offense was that “he knew he had the relevant status when he
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`possessed [the firearm].” Rehaif, 139 S. Ct. at 2194. The district court accepted Gary’s
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`plea and sentenced him to 84 months on each count, to run concurrently.
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`Gary appealed his sentence to this Court.2 During the pendency of his appeal, Gary
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`filed a letter pursuant to Federal Rule of Appellate Procedure 28(j) asserting that the
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`Supreme Court’s recent decision in Rehaif, 139 S. Ct. at 2191, is relevant to his appeal.
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`See Fed. R. App. P. 28(j). Gary further noted that this Court, sitting en banc, heard oral
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`argument in Lockhart, in which counsel argued the impact of Rehaif on the defendant’s
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`guilty plea. Gary asserted that Rehaif, as well as this Court’s opinion in Lockhart, would
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`likely impact his case because he pled guilty to two counts of possession of a firearm after
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`having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) without being
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`informed, as required by Rehaif, that an element of his offense was that he knew his
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`prohibited status at the time he possessed the firearm.
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`2 At sentencing, the district court, over Gary’s objection, imposed a four-level
`specific offense enhancement for possessing a gun in connection with another felony
`offense—possession with intent to distribute marijuana—based on the “large amount” of
`marijuana Dixon possessed on June 16, 2017. Gary objected to the enhancement on the
`grounds that (1) he had no knowledge of the marijuana, (2) Dixon, not Gary, was charged
`with possession with intent to distribute the marijuana, and (3) Dixon admitted the
`marijuana was his. Because we find that the invalidity of Gary’s guilty plea is dispositive
`of this appeal, we cannot and do not address the appropriateness of any sentence imposed
`based on the plea.
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`4
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`We invited the parties to file supplemental briefs addressing what impact, if any,
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`Rehaif may have on Gary’s convictions.3 This Court has since decided Lockhart, but limited
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`its holding to its unique facts, finding that the two errors committed in Lockhart’s case—the
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`failure to properly advise him of his sentencing exposure under the Armed Career Criminal
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`Act, 18 U.S.C. § 924(e), and the Rehaif error—“in the aggregate” were sufficient to establish
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`prejudice for purposes of plain error review. Lockhart, 947 F.3d at 197. We answer today
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`the question Lockhart did not: “whether a standalone Rehaif error requires automatic vacatur
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`of a defendant’s [guilty] plea, or whether such error should be reviewed for prejudice under
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`[United States v.] Olano[, 507 U.S. 725, 732 (1993)].” Lockhart, 947 F.3d at 196. We find
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`that a standalone Rehaif error satisfies plain error review because such an error is structural,
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`which per se affects a defendant’s substantial rights. We further find that the error seriously
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`affected the fairness, integrity and public reputation of the judicial proceedings and therefore
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`must exercise our discretion to correct the error.
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`II.
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`Because Gary did not attempt to withdraw his guilty plea in the district court, we
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`review his plea challenge for plain error. United States v. McCoy, 895 F.3d 358, 364 (4th
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`Cir. 2018). To succeed under plain error review, a defendant must show that: (1) an error
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`3 “[W]hen an intervening decision of this Court or the Supreme Court affects
`precedent relevant to a case pending on direct appeal, an appellant may timely raise a new
`argument, case theory, or claim based on that decision while his appeal is pending without
`triggering the abandonment rule.” United States v. White, 836 F.3d 437, 443–44 (4th Cir.
`2016), abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399 (2018).
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`occurred; (2) the error was plain; and (3) the error affected his substantial rights. Olano,
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`507 U.S. at 732; United States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010). We retain the
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`discretion to correct such an error but will do so only if the error “seriously affects the
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`fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732
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`(internal quotation marks omitted). With this standard in mind, we turn to the instant case.
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`Gary argues the first two prongs of plain error analysis are established by the
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`decision in Rehaif itself—that an error occurred and that it was plain. He contends that the
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`third prong, which requires Gary to show an effect on his substantial rights, is satisfied as
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`well. Without notice that the government was required to prove an additional element not
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`previously disclosed at the time of his guilty plea, Gary argues that he could not have
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`knowingly and intelligently pled guilty, rendering his plea constitutionally invalid.4
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`The government concedes that the district court committed plain error in failing to
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`inform Gary of the Rehaif element, but contends that omission of this element from the
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`plea colloquy did not affect Gary’s substantial rights because there is overwhelming
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`4 Gary also states that the government’s omission of the knowledge-of-status
`element from his indictment further supports a finding that he was not informed of the true
`nature of the offense and therefore could not knowingly and intelligently plead guilty.
`Appellee’s Supp. Br. 7. He contends that a conviction based on an indictment where
`neither the grand jury nor the defendant was informed of all the elements of the offense,
`together with the omission of the same element from both the indictment and the plea
`colloquy, affected his substantial rights. Id. at 8. Beyond these statements, however, Gary
`presents no argument regarding the sufficiency of his indictment or whether it constitutes
`a separate ground for the vacatur of his guilty plea. As “[i]t is not the practice of this court
`to consider an argument that has not been developed in the body of a party’s brief,” Gary’s
`failure to address the validity of the indictment is deemed an abandonment of the issue.
`Kinder v. White, 609 F. App’x 126, 133 (4th Cir. 2015); see also Fed. R. App. P.
`28(a)(8)(A); White, 836 F.3d at 443.
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`evidence that he knew of his felony status prior to possessing the firearms.5 The
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`government also notes that since Rehaif was decided, numerous circuits applying Olano’s
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`plain error standard have determined that there is no effect on a defendant’s substantial
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`rights where the evidence shows that the defendant knew of his status as a prohibited person
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`at the time of his gun possession. See, e.g., United States v. Burghardt, 939 F.3d 397, 404
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`(1st Cir. 2019) (plain error did not affect substantial rights where there was “overwhelming
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`proof” defendant had previously been sentenced to more than one year in prison).6
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`But the decisions cited by the government are distinguishable from Gary’s case in
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`at least one key respect—the courts did not consider whether the district court’s acceptance
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`of a guilty plea without informing the defendant of every element of the offense was a
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`5 In support of its argument, the government notes that Gary’s presentence report
`lists a 2014 conviction for second degree burglary, for which Gary was sentenced to eight
`years suspended upon service of three years. Three of those eight suspended years were
`later revoked for a probation violation. And at the time of that conviction, Gary had already
`served 691 days in custody and received credit for time served for the burglary charge.
`J.A. 107–113.
`6 See also, e.g., United States v. Denson, 774 F. App’x 184, 184–85 (5th Cir. 2019)
`(unpublished) (error did not affect substantial rights where defendant stipulated he had
`been convicted of a felony offense before possessing a firearm); United States v. Bowens,
`938 F.3d 790, 797 (6th Cir. 2019) (“defendants cannot show that but for the error, the
`outcome of the proceeding would have been different”); United States v. Williams, 946
`F.3d 968, 973 (7th Cir. 2020) (finding no effect on substantial rights where defendant
`served over a decade in prison for murder before committing firearm offense); United
`States v. Hollingshed, 940 F.3d 410, 415–16 (8th Cir. 2019) (substantial rights not affected
`where defendant sentenced to 78 months and served four years and thus had to have been
`aware of his felony status); United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019)
`(substantial rights prong not met where defendant spent nine years in prison on various
`felony convictions before his firearm arrest); United States v. Reed, 941 F.3d 1018, 1021–
`22 (11th Cir. 2019) (defendant failed to establish errors affected his substantial rights where
`he had eight previous felony convictions and had served at least 18 years in prison before
`he was arrested for possession of a firearm).
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`constitutional error that rendered his guilty plea invalid. Consequently, no circuit has yet
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`addressed the question of whether this error is a structural error that affects the substantial
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`rights of the defendant. We find that Gary did not knowingly and intelligently plead guilty
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`because he was not fully informed during his plea colloquy of the elements the government
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`had to prove to convict him of the § 922(g) offenses, and that this type of error—this denial
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`of due process—is a structural error that requires the vacatur of Gary’s guilty plea and convictions.
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`III.
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`A.
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`We agree with the parties that the first two prongs of Olano plain error review have
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`been met by the district court’s failure to give Gary notice of the Rehaif element of the
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`§ 922(g) offense. First, the district court’s acceptance of Gary’s plea was error. Federal
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`Rule of Criminal Procedure 11 requires that before accepting a plea of guilty, the court
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`must inform a defendant of, and confirm that he understands, the nature of the charge to
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`which he is pleading. Fed. R. Crim. P. 11(b)(G). Rule 11’s purpose is to ensure that a
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`defendant is fully informed of the nature of the charges against him and the consequences
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`of his guilty plea. See Fed. R. Crim. P. 11(b). Certainly, the district court’s acceptance of
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`Gary’s plea without informing him the government was required to prove an additional
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`element was error that violated the requirements of Rule 11. See Lockhart, 497 F.3d at 196.
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`Moreover, the error was plain. To be “plain,” an error must be “clear or obvious at
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`the time of appellate consideration.” Ramirez-Castillo, 748 F.3d at 215 (citations and
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`internal quotation marks omitted); see also Olano, 507 U.S. at 734; Henderson, 133 S. Ct.
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`at 1130 (internal quotation marks omitted). An error is clear or obvious “if the settled law
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`of the Supreme Court or this circuit establishes that an error has occurred.” Ramirez-
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`Castillo, 748 F.3d at 215 (citing United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)).
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`This was the case here. At the time of Gary’s guilty plea, the parties and the district
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`court relied on this Court’s decision in United States v. Langley, 62 F.3d 602, 606 (4th Cir.
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`1995) (en banc), abrogated by Rehaif, 139 S. Ct. at 2191, wherein this Court had held that
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`knowledge of one’s prohibited status was not a required element of a § 922(g) offense. But
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`after the Supreme Court rendered its decision in Rehaif, and while Gary’s appeal was
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`pending, this Court decided Lockhart, holding that it is plain error to accept a guilty plea
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`based on a pre-Rehaif understanding of the elements of a § 922(g)(1) offense. Lockhart,
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`947 F.3d at 196. These cases now represent the settled law by which this Court must
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`measure whether the error is “plain” at the time of Gary’s appeal. Ramirez-Castillo, 748
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`F.3d at 215. In light of the Supreme Court’s decision in Rehaif, and this Court’s
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`determination in Lockhart, we conclude the error in this case is plain.
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`B.
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`Having established that the first two prongs have been met, we must consider
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`whether Gary has established the third prong of an Olano inquiry—that the error affected
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`his substantial rights. See Olano, 507 U.S. at 732.
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`1.
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`The government argues that although the court’s failure to inform Gary of the
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`additional element of the offense was error, it did not affect his substantial rights because
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`there is overwhelming evidence in the record that he was aware he had been convicted of
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`a crime punishable by imprisonment for a term exceeding one year at the time he possessed
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`the firearms, including a felony burglary conviction for which he served 691 days in
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`custody. Thus, according to the government, Gary has not demonstrated a reasonable
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`probability that, but for the error, he would not have pled guilty.
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`In response, Gary argues that his guilty plea is “constitutionally invalid” because
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`the court misinformed him regarding the elements of his offense. Relying on Supreme
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`Court precedent, he contends that a constitutionally invalid plea affects substantial rights
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`as a per se matter and supports the conclusion that a defendant need not make a case-
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`specific showing of prejudice even in the face of overwhelming evidence that he would
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`have pled guilty.
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`Further, Gary asserts that the district court’s error in accepting his unintelligent
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`guilty plea is structural because it infringed upon his autonomy interest in “mak[ing] his
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`own choices about the proper way to protect his own liberty.” Weaver v. Massachusetts,
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`137 S. Ct. 1899, 1907–08 (2017). He contends this violation is comparable to the
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`infringement that occurs when a defendant is denied the right to self-representation or the
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`right to the counsel of his choice—and therefore affects his substantial rights regardless of
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`the strength of the prosecution’s evidence or whether the error affected the ultimate
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`outcome of the proceedings.
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`We find Gary’s argument persuasive. “In most cases,” the phrase “affects
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`substantial rights” means that “the error must have been prejudicial”—that is, “[i]t must
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`have affected the outcome of the district court proceedings.” Ramirez-Castillo, 748 F.3d
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`at 215 (citing Olano, 507 U.S. at 734). Stated differently, to establish that a Rule 11 error
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`10
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`has affected substantial rights, a defendant must “show a reasonable probability that, but
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`for the error, he would not have entered the plea . . . [and] satisfy the judgment of the
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`reviewing court, informed by the entire record, that the probability of a different result is
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`‘sufficient to undermine the confidence in the outcome’ of the proceeding.” United States
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`v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (citing Strickland v. Washington, 466 U.S.
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`668, 694 (1984)).
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`But the Supreme Court has recognized that a conviction based on a constitutionally
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`invalid guilty plea cannot be saved “even by overwhelming evidence that the defendant
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`would have pleaded guilty regardless.” Dominguez Benitez, 542 U.S. 74, 84 n.10. For
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`example, in Bousley v. United States, 523 U.S. 614 (1998), the Supreme Court held that a
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`guilty plea is constitutionally valid only to the extent it is “voluntary” and “intelligent.” Id.
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`at 618. A plea does not qualify as intelligent unless a criminal defendant first receives “real
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`notice of the true nature of the charge against him, the first and most universally recognized
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`requirement of due process.” Id. (citing Smith v. O’Grady, 312 U.S. 329, 334 (1941)).
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`Similarly, in Henderson v. Morgan, 426 U.S. 637, 645 (1976), the Supreme Court
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`invalidated a guilty plea to second degree murder where the defendant was not informed
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`of the mens rea requirement. Such a plea, the Court held, could not support a judgment of
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`guilt unless it was “voluntary in a constitutional sense,” and the plea could not be voluntary,
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`i.e. an intelligent admission that he committed the offense, unless the defendant received
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`“real notice of the true nature of the charge against him.” Id. at 645–46. The Court
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`assumed the prosecutor had overwhelming evidence of the defendant’s guilt, but found that
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`nothing in the record, not even the defendant’s admission that he killed the victim, could
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`substitute for a finding or voluntary admission that he had the requisite intent. Id. at 646;
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`see also United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007) (defendant’s
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`misunderstanding of what was necessary to find him guilty of the offense “resulted in a
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`flawed guilty plea that affected [his] substantial rights.”).
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`Gary’s argument is supported by the Supreme Court’s long-held view that there is
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`“a special category of forfeited errors that can be corrected regardless of their effect on the
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`outcome,” and that “not in every case” does a defendant have to “make a specific showing
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`of prejudice to satisfy the ‘affecting substantial rights’ prong . . . .” Olano, 507 U.S. at
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`735. This Court has recognized that this language refers to “structural errors.” United
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`States v. David, 83 F.3d 638, 647 (4th Cir.1996); see also United States v. Marcus, 560
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`U.S. 258, 263 (2010) (certain “structural errors” might affect substantial rights regardless
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`of their actual impact on an appellant’s trial); United States v. White, 405 F.3d 208, 221
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`(4th Cir. 2005) (Olano recognizes a “special category of unpreserved errors . . . that may
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`be noticed ‘regardless of their effect on the outcome’”). Such errors are referred to as
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`“structural” because they are “fundamental flaws” that “undermine[] the structural integrity
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`of [a] criminal tribunal.” See Vasquez v. Hillery, 474 U.S. at 263–64.
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`“The purpose of the structural error doctrine is to ensure insistence on certain basic,
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`constitutional guarantees that should define the framework of any criminal trial. Thus, the
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`defining feature of a structural error is that it ‘affect[s] the framework within which the
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`trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Weaver, 137
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`S. Ct. at 1907–08 (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Structural
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`errors are “defects in the constitution of the trial mechanism which defy analysis by
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`‘harmless-error’ standards,” Fulminante, 499 U.S. at 309, and “deprive defendants of
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`‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a
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`vehicle for determination of guilt or innocence . . . and no criminal punishment may be
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`regarded as fundamentally fair.’” Neder v. United States, 527 U.S. 1, 8–9 (1999) (quoting
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`Rose v. Clark, 478 U.S. 570, 577–78 (1986)).
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`The Supreme Court has identified a “limited class” of errors as structural. Johnson
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`v. United States, 520 U.S. 461, 468–69 (1997). See, e.g., McCoy v. Louisiana, 138 S. Ct.
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`1500 (2018) (attorney admission of defendant’s guilt over defendant’s objection); Sullivan
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`v. Louisiana, 508 U.S. 275 (1993) (erroneous reasonable-doubt instruction); Vasquez, 474
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`U.S. at 254 (racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S.
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`39 (1984) (violation of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168
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`(1984) (right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335 (1963)
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`(total deprivation of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (lack of an impartial
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`trial judge). “The precise reason why a particular error is not amenable to [harmless error]
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`analysis—and thus the precise reason why the Court has deemed it structural—varies in a
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`significant way from error to error,” Weaver, 137 S. Ct. at 1907–08, but the Supreme Court
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`has adopted at least three broad rationales for identifying errors as structural.
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`First, an error has been deemed structural in instances where “‘the right at issue is
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`not designed to protect the defendant from erroneous conviction but instead protects some
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`other interest,’ such as ‘the fundamental legal principle that a defendant must be allowed
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`to make his own choices about the proper way to protect his own liberty.’” McCoy, 138 S.
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`Ct. at 1511 (quoting Weaver, 137 S. Ct. at 1908). Deprivations of the Sixth Amendment
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`right to self-representation are structural errors not subject to harmless error review because
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`“[t]he right is either respected or denied; its deprivation cannot be harmless.” McCoy, 138
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`S. Ct. at 1511 (quoting McKaskle, 465 U.S. at 177 n.8).
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`Second, an error has been deemed structural if the effects of the error are simply too
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`hard to measure; i.e. where “the precise ‘effect of the violation cannot be ascertained.’”
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`United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (quoting Vasquez, 474 U.S. at
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`263). Such is the case where the consequences of a constitutional deprivation “are
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`necessarily unquantifiable and indeterminate,” Gonzalez-Lopez, 548 U.S. at 150. For
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`example, when a defendant is denied the right to select his or her own attorney, the
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`government will, as a result, find it almost impossible to show that the error was “harmless
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`beyond a reasonable doubt.” Weaver, 137 S. Ct. at 1908 (citing Chapman v. California,
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`386 U.S. 18, 24 (1967)).
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`“Third, an error has been deemed structural if the error always results in
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`fundamental unfairness,” such as in the denial of the right to an attorney in Gideon, 372
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`U.S. at 343–45, or in the failure to give a reasonable doubt instruction as in Sullivan, 508
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`U.S. at 279. In these circumstances, it “would therefore be futile for the government to try
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`to show harmlessness.” Weaver, 137 S. Ct. at 1908.
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`These three categories are not rigid; more than one of these rationales may be part
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`of the explanation for why an error is deemed structural. Weaver, 137 S. Ct. at 1908. Thus,
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`an error can count as structural even if the error does not lead to fundamental unfairness in
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`every case. Id., see Gonzalez-Lopez, 548 U.S. at 149, n.4 (rejecting the idea that structural
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`errors “always or necessarily render a trial fundamentally unfair and unreliable”).
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`14
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`2.
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`The Supreme Court has expressly reserved the question of whether structural errors
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`automatically satisfy the third prong of Olano, see Puckett v. United States, 556 U.S. 129,
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`140–41 (2009), but this Court has held that such errors necessarily affect substantial rights,
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`satisfying Olano’s third prong.7 See David, 83 F.3d at 647 (failure to instruct jury on an
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`element of the offense is within the “special category” of forfeited errors). Therefore, if an
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`error is determined to be structural, the third prong of Olano is satisfied. Ramirez-Castillo,
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`748 F.3d at 215. Against this backdrop, we must determine whether the constitutional error
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`in this case is a structural error that satisfies the third prong of an Olano inquiry.
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`Under each of the Supreme Court’s rationales, we find the district court’s error is
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`structural. First, the error violated Gary’s right to make a fundamental choice regarding
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`his own defense in violation of his Sixth Amendment autonomy interest. Indeed, the Sixth
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`Amendment contemplates that “the accused . . . is the master of his own defense,” and thus
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`certain decisions, including whether to waive the right to a jury trial and to plead guilty,
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`are reserved for the defendant. McCoy, 138 S. Ct. at 1508.
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`Gary had the right to make an informed choice on whether to plead guilty or to
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`exercise his right to go to trial. In accepting Gary’s guilty plea after misinforming him of
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`the nature of the offense with which he was charged, the court deprived him of his right to
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`7 We acknowledge that not every Rule 11 violation resulting in a constitutional error
`requires the automatic reversal of a conviction. But a Rule 11 error is not harmless when
`it affects a defendant’s substantial rights. See Fulminante, 499 U.S. at 306 (citing
`Chapman, 386 U.S. at 21–22); see Fed. R. Crim P. 11(h). Indeed, structural errors affect
`the “entire conduct of the trial from beginning to end,” and therefore cannot be harmless.
`Fulminante, 499 U.S. at 309.
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`determine the best way to protect his liberty. Gary need not demonstrate prejudice resulting
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`from the error because harm to a defendant is irrelevant to the principles underlying his
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`autonomy right and liberty interests. McKaskle, 465 U.S. at 177 n. 8. Thus, the error is
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`structural regardless of the strength of the prosecution’s evidence or whether the error
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`would have affected the ultimate outcome of the proceedings. Id.
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`Further, we find that the district court’s error is structural because the deprivation
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`of Gary’s autonomy interest under the Fifth Amendment due process clause has
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`consequences that “are necessarily unquantifiable and indeterminate,” see Gonzalez-Lopez,
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`548 U.S. at 150, rendering the impact of the district court’s error simply too difficult to
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`measure. See id. at 149 n.4 (quoting Vasquez, 474 U.S. at 263) (finding structural error
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`where “the precise ‘effect of the violation cannot be ascertained.’”)
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`Here, as in Gonzalez-Lopez, “we rest our conclusion of structural error upon the
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`difficulty of assessing the effect of the error.” 548 U.S. at 149 n.4; see also Waller, 467
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`U.S. at 49 n.9 (error not subject to harmless error review where the benefits of the right
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`infringed “are frequently intangible, difficult to prove, or a matter of chance.”). The error
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`here occurred in the context of a guilty plea and thus is not the type of error that “‘may be
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`quantitatively assessed in the context of other evidence presented [at trial] in order to
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`determine whether [the error was] harmless beyond a reasonable doubt.’” Gonzalez-Lopez,
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`548 U.S. at 148 (citing Fulminante, 499 U.S. at 307–08). And unlike Rule 11 errors
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`amounting to “small errors or defects that have little if any, likelihood of having changed
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`the result of the [proceeding],” see Chapman, 386 U.S. at 22, the impact of this error—an
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`undisputed constitutional violation where Gary was misinformed about the nature of the
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`charges against him—is instead the type that is fundamental to the judicial process. When
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`Gary pled guilty, he waived, among other rights, his right to a trial by jury, his privilege
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`against self-incrimination, and his right to confront his accusers. The impact of his
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`unknowing waiver of his trial rights based on an unconstitutional guilty plea, just like the
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`denial of other trial rights previously identified by the Supreme Court as structural error, is
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`unquantifiable. It is impossible to know how Gary’s counsel, but for the error, would have
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`advised him, what evidence may have been presented in his defense, and ultimately what
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`choice Gary would have made regarding whether to plead guilty or go to trial. With no
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`way to gauge the intangible impact that results from a guilty plea premised on a
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`constitutional violation, see Waller, 467 U.S. at 49 n.9, we “find it almost impossible to
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`show that the error was ‘harmless beyond a reasonable doubt.’” Weaver, 137 S. Ct. at 1908
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`(citing Chapman, 386 U.S. at 24).
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`Finally, we independently find the error is structural on the ground that fundamental
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`unfairness results when a defendant is convicted of a crime based on a constitutionally
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`invalid guilty plea. Gary waived his trial rights after he was misinformed regarding the
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`nature of a § 922 offense and the elements the government needed to prove to find him
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`guilty. Indeed, under the provisions of § 922(g), “the defendant’s status is the ‘crucial
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`element’ separating innocent from wrongful conduct.” Rehaif, 139 S. Ct. at 2197 (citing
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`United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994). Yet the district court
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`failed to inform Gary that knowledge of his prohibited status was an element of the offense,
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`denying him any opportunity to decide whether he could or desired to mount a defense to
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`this el