UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4255
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANTHONY MCEACHIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:18-cr-00240-NCT-2)
Submitted: August 24, 2021 Decided: September 7, 2021
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Todd A. Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Kyle D. Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
In September 2018, Michael Anthony McEachin pled guilty, pursuant to a written
plea agreement, to possession of a firearm as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). The district court sentenced McEachin to 70 months’
imprisonment and 3 years of supervised release. The district court entered the underlying
criminal judgment in March 2019, only a few months prior to the Supreme Court’s
landmark decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).
McEachin timely appealed, and counsel initially submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there were no meritorious issues
for appeal, but asking us to review the validity of McEachin’s guilty plea and the
reasonableness of his sentence. Following McEachin’s submission of a pro se
supplemental brief identifying Rehaif as a possible basis for relief, counsel submitted a
supplemental merits brief raising two arguments based on Rehaif. Specifically, McEachin
argued that, in light of Rehaif, the underlying indictment was invalid and that his guilty
plea should be reversed because the district court committed plain error in accepting the
plea without advising McEachin of the knowledge-of-status element of the § 922(g)
charge.
This appeal was first placed in abeyance for our decision in United States v.
Lockhart, No. 16-4441, following which McEachin filed a second supplemental brief. The
appeal was then placed in abeyance pending issuance of our mandate in United States v.
Gary, No. 18-4578.
2 After the Supreme Court decided Greer v. United States, 141 S. Ct. 2090 (2021),
the Government moved to remove this case from abeyance and filed a formal response
brief. Although afforded the opportunity to file a supplemental reply, McEachin has
declined to do so. The appeal is now ripe for disposition. For the reasons explained below,
we affirm the judgment in part as to McEachin’s conviction, but vacate the judgment as to
McEachin’s sentence and remand this case to the district court for resentencing consistent
with United States v. Rogers, 961 F.3d 291, 296-301 (4th Cir. 2020).
I.
We turn first to McEachin’s Rehaif challenge to his guilty plea. Because McEachin
did not raise this argument in the district court, our review is limited to plain error. See
United States v. Caldwell, No. 19-4019, 2021 WL 3356951, at *13 (4th Cir. Aug. 3, 2021)
(observing that “plain-error review applies to unpreserved Rehaif errors”).
In Greer, which involved two defendants—Gary and Greer—who, prior to Rehaif,
were convicted of violating 18 U.S.C. § 922(g)(1), the Supreme Court considered whether
the defendants “[were] entitled to plain-error relief for their unpreserved Rehaif claims.”
141 S. Ct. at 2096; see id. at 2095. A federal jury convicted Greer following a trial, and
Gary pled guilty. Id. at 2096. The Supreme Court concluded that neither defendant was
entitled to relief, id., holding, as relevant here, that Gary had not met his “burden of
showing that, if the [d]istrict [c]ourt had correctly advised him of the mens rea element of
the offense, there [was] a ‘reasonable probability’ that he would not have pled guilty,” id.
at 2098. In reaching this conclusion, the Supreme Court found relevant that, “[b]efore [his]
felon-in-possession offense[], . . . Gary had been convicted of multiple felonies,” id. at
3 2097; Gary had not contested “the fact of [his] prior convictions”; Gary conceded his status
as a felon at his plea hearing; and he neither argued nor presented any evidence establishing
that he was unaware of his status as a convicted felon, id. at 2098. The Supreme Court
opined, quite simply, that the existence of Gary’s “prior convictions [was] substantial
evidence” that Gary indeed knew that he was a felon. Id. at 2097-98.
Considered within this framework, we conclude that McEachin’s Rehaif plain-error
argument fails. Like Gary, McEachin admitted during his plea colloquy that he was a
convicted felon at the time he possessed a firearm. Also like Gary, McEachin has not
presented any evidence showing that he was then unaware of his felon status. At the most,
McEachin twice contends in footnotes “that he would have exercised his right to trial had
he known that the Government had to prove that he knew that he was in a barred class of
people allowed to own firearms.” (Supp. Br. (ECF No. 22) at 7 n.3 & 11 n.5). But this
type of unsupported assertion is not sufficient to carry the defendant’s burden under Greer.
Finally, we observe that information contained in McEachin’s presentence report—
including McEachin’s prior state and federal felony convictions, that McEachin was on
unsupervised probation for a misdemeanor state offense at the time he committed the
underlying federal crime, and a statement McEachin made upon his arrest—undercuts the
notion advanced here that McEachin was unaware of his felon status when he was found
in possession of a firearm. See Greer, 141 S. Ct. at 2098 (explaining that, “when an
appellate court conducts plain-error review of a Rehaif instructional error, the court can
examine relevant and reliable information from the entire record—including information
contained in a pre-sentence report”).
4 Upon review, we hold that McEachin does not have a viable basis on which to
contend that he did not know of his felon status. Accordingly, we reject McEachin’s
substantive Rehaif challenge to his conviction.
We turn, briefly, to McEachin’s secondary Rehaif arguments. Specifically,
McEachin first asserts that the indictment was insufficient to confer subject matter
jurisdiction on the district court because it did not include the knowledge-of-status element
of the § 922(g) charge. However, it is well settled that a defect in an indictment does “not
deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625,
630 (2002). And, while not binding on us, we note that the First Circuit recently relied on
Cotton to reject essentially the same jurisdictional argument McEachin advances here. See
United States v. Farmer, 988 F.3d 55
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4255
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ANTHONY MCEACHIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:18-cr-00240-NCT-2)
Submitted: August 24, 2021 Decided: September 7, 2021
Before NIEMEYER, KING, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Todd A. Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Kyle D. Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
In September 2018, Michael Anthony McEachin pled guilty, pursuant to a written
plea agreement, to possession of a firearm as a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). The district court sentenced McEachin to 70 months’
imprisonment and 3 years of supervised release. The district court entered the underlying
criminal judgment in March 2019, only a few months prior to the Supreme Court’s
landmark decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).
McEachin timely appealed, and counsel initially submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring that there were no meritorious issues
for appeal, but asking us to review the validity of McEachin’s guilty plea and the
reasonableness of his sentence. Following McEachin’s submission of a pro se
supplemental brief identifying Rehaif as a possible basis for relief, counsel submitted a
supplemental merits brief raising two arguments based on Rehaif. Specifically, McEachin
argued that, in light of Rehaif, the underlying indictment was invalid and that his guilty
plea should be reversed because the district court committed plain error in accepting the
plea without advising McEachin of the knowledge-of-status element of the § 922(g)
charge.
This appeal was first placed in abeyance for our decision in United States v.
Lockhart, No. 16-4441, following which McEachin filed a second supplemental brief. The
appeal was then placed in abeyance pending issuance of our mandate in United States v.
Gary, No. 18-4578.
2 After the Supreme Court decided Greer v. United States, 141 S. Ct. 2090 (2021),
the Government moved to remove this case from abeyance and filed a formal response
brief. Although afforded the opportunity to file a supplemental reply, McEachin has
declined to do so. The appeal is now ripe for disposition. For the reasons explained below,
we affirm the judgment in part as to McEachin’s conviction, but vacate the judgment as to
McEachin’s sentence and remand this case to the district court for resentencing consistent
with United States v. Rogers, 961 F.3d 291, 296-301 (4th Cir. 2020).
I.
We turn first to McEachin’s Rehaif challenge to his guilty plea. Because McEachin
did not raise this argument in the district court, our review is limited to plain error. See
United States v. Caldwell, No. 19-4019, 2021 WL 3356951, at *13 (4th Cir. Aug. 3, 2021)
(observing that “plain-error review applies to unpreserved Rehaif errors”).
In Greer, which involved two defendants—Gary and Greer—who, prior to Rehaif,
were convicted of violating 18 U.S.C. § 922(g)(1), the Supreme Court considered whether
the defendants “[were] entitled to plain-error relief for their unpreserved Rehaif claims.”
141 S. Ct. at 2096; see id. at 2095. A federal jury convicted Greer following a trial, and
Gary pled guilty. Id. at 2096. The Supreme Court concluded that neither defendant was
entitled to relief, id., holding, as relevant here, that Gary had not met his “burden of
showing that, if the [d]istrict [c]ourt had correctly advised him of the mens rea element of
the offense, there [was] a ‘reasonable probability’ that he would not have pled guilty,” id.
at 2098. In reaching this conclusion, the Supreme Court found relevant that, “[b]efore [his]
felon-in-possession offense[], . . . Gary had been convicted of multiple felonies,” id. at
3 2097; Gary had not contested “the fact of [his] prior convictions”; Gary conceded his status
as a felon at his plea hearing; and he neither argued nor presented any evidence establishing
that he was unaware of his status as a convicted felon, id. at 2098. The Supreme Court
opined, quite simply, that the existence of Gary’s “prior convictions [was] substantial
evidence” that Gary indeed knew that he was a felon. Id. at 2097-98.
Considered within this framework, we conclude that McEachin’s Rehaif plain-error
argument fails. Like Gary, McEachin admitted during his plea colloquy that he was a
convicted felon at the time he possessed a firearm. Also like Gary, McEachin has not
presented any evidence showing that he was then unaware of his felon status. At the most,
McEachin twice contends in footnotes “that he would have exercised his right to trial had
he known that the Government had to prove that he knew that he was in a barred class of
people allowed to own firearms.” (Supp. Br. (ECF No. 22) at 7 n.3 & 11 n.5). But this
type of unsupported assertion is not sufficient to carry the defendant’s burden under Greer.
Finally, we observe that information contained in McEachin’s presentence report—
including McEachin’s prior state and federal felony convictions, that McEachin was on
unsupervised probation for a misdemeanor state offense at the time he committed the
underlying federal crime, and a statement McEachin made upon his arrest—undercuts the
notion advanced here that McEachin was unaware of his felon status when he was found
in possession of a firearm. See Greer, 141 S. Ct. at 2098 (explaining that, “when an
appellate court conducts plain-error review of a Rehaif instructional error, the court can
examine relevant and reliable information from the entire record—including information
contained in a pre-sentence report”).
4 Upon review, we hold that McEachin does not have a viable basis on which to
contend that he did not know of his felon status. Accordingly, we reject McEachin’s
substantive Rehaif challenge to his conviction.
We turn, briefly, to McEachin’s secondary Rehaif arguments. Specifically,
McEachin first asserts that the indictment was insufficient to confer subject matter
jurisdiction on the district court because it did not include the knowledge-of-status element
of the § 922(g) charge. However, it is well settled that a defect in an indictment does “not
deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625,
630 (2002). And, while not binding on us, we note that the First Circuit recently relied on
Cotton to reject essentially the same jurisdictional argument McEachin advances here. See
United States v. Farmer, 988 F.3d 55, 60-61 & n.3 (1st Cir.), petition for cert. filed (U.S.
July 6, 2021) (No. 21-5011). Relatedly, McEachin claims that the indictment is invalid or
defective in that, as pled, McEachin is exposed to a potential double jeopardy violation in
that he could be charged separately for the same criminal conduct. But McEachin does not
fully expand on this claim or point us to any supporting authority. We thus reject both of
McEachin’s ancillary Rehaif claims.
II.
We turn, then, to the issues raised in counsel’s Anders brief. First, counsel asks us
to review the validity of McEachin’s guilty plea. Before accepting a guilty plea, the district
court must conduct a colloquy in which it informs the defendant of, and determines that he
understands, the nature of the charges to which he is pleading guilty, any mandatory
minimum penalty, the maximum penalty he faces, and the rights he relinquishes by
5 pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v. Williams, 811 F.3d 621, 622
(4th Cir. 2016). The court also must ensure that the defendant’s plea is voluntary in that it
did not result from force, threats, or promises outside the plea agreement, and is supported
by an independent factual basis. Fed. R. Crim. P. 11(b)(2)-(3); Williams, 811 F.3d at 622;
see also United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991). Because
McEachin did not move to withdraw his guilty plea or otherwise preserve any error in the
plea proceedings, we review the adequacy of the plea colloquy for plain error. Williams,
811 F.3d at 622.
Our review of the transcript confirms that, apart from the Rehaif issue addressed in
Part I, the district court substantially complied with the requirements of Fed. R. Crim. P.
11, that a factual basis supported the plea, and that McEachin’s plea was knowingly and
voluntarily entered. Accordingly, McEachin’s guilty plea is valid, and we therefore affirm
his conviction.
The final issues for our consideration relate to the imposed 70-month term of
incarceration and 3-year term of supervised release. In the Anders brief, counsel asks that
we review the overall reasonableness of McEachin’s sentence, but does not identify any
particular area of concern. We review a sentence “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under this standard, a sentence
is reviewed for both procedural and substantive reasonableness. Id. at 51. In determining
procedural reasonableness, we consider, among other things, whether the district court
properly calculated the defendant’s Sentencing Guidelines range. Id. If a sentence is free
6 of “significant procedural error,” then we review it for substantive reasonableness,
“tak[ing] into account the totality of the circumstances.” Id.
Our review of the sentencing transcript confirms that the district court accurately
calculated McEachin’s advisory Guidelines range, gave the parties the opportunity to
present argument and McEachin the opportunity to allocute, considered the 18 U.S.C.
§ 3553(a) factors it deemed most relevant, and adequately explained its reasons for
imposing the custodial term of imprisonment. However, our Anders review in this case
revealed a significant sentencing error related to the three-year term of supervised release.
Specifically, in announcing the terms of supervised release, the court only specified
a few “special” conditions of supervised release. However, in its written judgment, the
district court, in addition to these special conditions and the statutorily imposed mandatory
conditions, included 13 “standard” conditions of supervision, which the court did not
announce during the sentencing hearing. These “standard” conditions are those
recommended by U.S. Sentencing Guidelines Manual § 5D1.3(c), p.s. (2018).
We review de novo whether the sentence imposed in the written judgment is
consistent with the district court’s oral pronouncement of the sentence. Rogers, 961 F.3d
at 295-96. While a district court need not orally pronounce all mandatory conditions at the
sentencing hearing, “all non-mandatory conditions of supervised release must be
announced at a defendant’s sentencing hearing.” Id. at 296. The district court “may satisfy
its obligation to orally pronounce discretionary conditions through incorporation” by
reference to, for example, the standard conditions recommended by the Guidelines. Id. at
299. We recently clarified that the appropriate remedy when the district court fails to
7 announce the discretionary conditions of supervised release that are later included in the
written judgment is to vacate the sentence and remand for a full resentencing hearing. See
United States v. Singletary, 984 F.3d 341, 346 & n.4 (4th Cir. 2021).
Here, the district court failed to pronounce at McEachin’s sentencing hearing the 13
standard conditions imposed in the written judgment. Nor did the court incorporate these
conditions by reference to the Guidelines during the hearing. We conclude, therefore, that
McEachin’s sentence must be vacated. See id.
III.
In accordance with Anders, we have reviewed the entire record and have found no
other meritorious grounds for appeal. Therefore, for the reasons outlined above, while we
affirm McEachin’s conviction, we vacate his sentence and remand for resentencing. This
court requires that counsel inform McEachin, in writing, of the right to petition the
Supreme Court of the United States for further review. If McEachin requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on McEachin. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED