TERRY v. UNITED STATES

Certiorari To The United States Court Of Appeals For The Eleventh Circuit

No. 20–5904. Argued May 4, 2021—Decided June 14, 2021

Petitioner Tarahrick Terry contends that he is eligible to receive a sentence reduction for his 2008 crack cocaine conviction. In 1986, Congress established mandatory-minimum penalties for certain drug offenses. That legislation defined three relevant penalties for possession with intent to distribute cocaine. The first two carried mandatory minimum sentences based on drug quantity: a 5-year mandatory minimum (triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine) and a 10-year mandatory minimum (triggered by either 50 grams of crack or 5 kilograms of powder). 100 Stat. 3207–2, 3207–3. The third penalty differed from the first two: it did not carry a mandatory minimum sentence, did not treat crack and powder cocaine offenses differently, and did not depend on drug quantity. Id., at 3207–4. Petitioner was subjected to this third penalty when he pleaded guilty in 2008 to possession with intent to distribute an unspecified amount of crack. The District Court determined that his offense involved about 4 grams of crack.

Two years later, Congress passed the Fair Sentencing Act of 2010, which increased the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum. §2(a), 124 Stat. 2372. But Congress did not make this change retroactive until 2018, when it enacted the First Step Act. After that, Petitioner sought resentencing on the ground that he was convicted of a crack offense modified by the Fair Sentencing Act. The District Court denied his motion, and the Eleventh Circuit affirmed.

Held: A crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. The First Step Act makes an offender eligible for a sentence reduction only if the offender previously received “a sentence for a covered offense.” §404(b), 132 Stat. 5222. The Act defines “ ‘covered offense’ ” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” certain provisions in the Fair Sentencing Act. §404(a), ibid. The Fair Sentencing Act modified the statutory penalties for offenses that triggered mandatory minimum penalties because a person charged with the same conduct today no longer would face the same statutory penalties that they would have faced before 2010. For example, a person charged with knowing or intentional possession with intent to distribute at least 50 grams of crack was subject to a 10-year mandatory minimum before 2010. Now, he would be subject only to a 5-year mandatory minimum. But the Fair Sentencing Act did not modify the statutory penalties for petitioner’s offense. Before 2010, a person charged with petitioner’s offense—knowing or intentional possession with intent to distribute an unspecified amount of a schedule I or II drug—was subject to statutory penalties of imprisonment of 0-to-20 years and up to a $1 million fine, or both, and a period of supervised release. After 2010, a person charged with this conduct is subject to the exact same statutory penalties. Petitioner thus is not eligible for a sentence reduction. Pp. 5–8.

828 Fed. Appx. 563, affirmed.

 Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment.


GREER v. UNITED STATES

Certiorari To The United States Court Of Appeals For The Eleventh Circuit

No. 19–8709. Argued April 20, 2021—Decided June 14, 2021 1

In Rehaif v. United States, 588 U. S. ___, the Court clarified the mens rea requirement for firearms-possession offenses under 18 U. S. C. §922(g). After Rehaif, the Government in a felon-in-possession case must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm. See 588 U. S., at ___. Prior to Rehaif, Gregory Greer and Michael Gary were separately convicted of being felons in possession of a firearm in violation of §922(g)(1). Greer’s conviction resulted from a jury trial during which Greer did not request—and the District Court did not give—a jury instruction requiring the jury to find that Greer knew he was a felon when he possessed the firearm. Gary pled guilty to two counts of being a felon in possession of a firearm. During Gary’s plea colloquy, the District Court did not advise Gary that, if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearms. On appeal, both Greer and Gary raised new mens rea arguments based on Rehaif. Greer requested a new trial based on the District Court’s failure to instruct the jury that Greer had to know he was a felon to be found guilty. Applying plain-error review, the Eleventh Circuit rejected that argument. Gary argued that his guilty plea must be vacated because the District Court failed to advise him that, if he went to trial, a jury would have to find that he knew he was a felon. The Fourth Circuit agreed with Gary, holding that the failure to advise him of that mens rea element was a structural error that required automatic reversal even though Gary had not raised the argument in the District Court.

Held: In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.

 Under Rule 51(b) of the Federal Rules of Criminal Procedure, a defendant who has “an opportunity to object” to an alleged error and fails to do so forfeits the claim of error. If, as with Greer and Gary here, a defendant later raises the forfeited claim on appeal, Rule 52(b)’s plain-error standard applies. See Puckett v. United States, 556 U. S. 129, 135. To establish eligibility for plain-error relief, a defendant must show (i) that there was an error, (ii) that the error was plain, and (iii) that the error affects “substantial rights,” i.e., that there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Rosales-Mireles v. United States, 585 U. S. ___, ___. If the defendant satisfies those three prongs, an appellate court may grant relief only if it also concludes that the error had a serious effect on “the fairness, integrity or public reputation of judicial proceedings.” Ibid. (internal quotation marks omitted).

 Here, it is undisputed that Rehaif errors occurred during Greer’s and Gary’s district court proceedings and that the errors were plain. To satisfy the “substantial rights” prong, Greer must show that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Gary must show that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty.

 Greer and Gary have not carried that burden. Both had been convicted of multiple felonies prior to their respective felon-in-possession offenses. Those prior convictions are substantial evidence that they knew they were felons. And neither defendant argued or made a representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon when he possessed a firearm.

 Greer’s and Gary’s counterarguments are unpersuasive. Greer primarily argues that an appellate court conducting plain-error review of a Rehaif instructional error may examine only the trial record, and may not consider, for example, information about a defendant’s prior convictions contained in a pre-sentence report. But the undisputed fact that Greer was a felon is in the trial record. In any event, that argument contravenes both logic and precedent. See, e.g., United States v. Vonn, 535 U. S. 55, 58–59.

 Gary argues that he is exempt from ordinary plain-error review under Rule 52(b) for one of two alternative reasons. Gary first argues that a narrow “futility” exception to Rule 52(b) applies because it would have been futile to object to the omission of the mens rea element from his plea colloquy given the pre-Rehaif state of the law. For that reason, Gary argues that his claim should be governed by the more lenient harmless-error standard of Rule 52(a) rather than the more exacting plain-error standard of Rule 52(b). Gary’s proposed futility exception lacks any support in the text of the Federal Rules of Criminal Procedure or in this Court’s precedents, which distinguish between harmless-error and plain-error review based on preservation. See, e.g., Johnson v. United States, 520 U. S. 461. Gary also asserts that Rehaif errors are “structural” and require automatic vacatur in every case without regard to whether a defendant can otherwise satisfy the plain-error test. The Court disagrees. Rehaif errors fit comfortably within the “general rule” that “a constitutional error does not automatically require reversal of a conviction.” Arizona v. Fulminante, 499 U. S. 279, 306. Pp. 3–11.

No. 19–8709, 798 Fed. Appx. 483, affirmed; No. 20–444, 954 F. 3d 194, reversed.

 Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, Alito, Kagan, Gorsuch, and Barrett, JJ., joined. Sotomayor, J., filed an opinion, concurring in part and dissenting in part.

Notes
1 Together with No. 20–444, United States v. Gary, on certiorari to the United States Court of Appeals for the Fourth Circuit.