United States Court of Appeals For the First Circuit
No. 19-1486
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ANIBAL PATRONE, a/k/a Juan Anibal, a/k/a Juan Anibal Patrone-González, a/k/a Flacco, a/k/a Poppo, a/k/a Carlos,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Thompson, Lipez, and Kayatta, Circuit Judges.
Leonard E. Milligan III, with whom Jin-Ho King and Milligan Rona Duran & King LLC were on brief, for appellant. Theodore B. Heinrich, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
January 14, 2021 KAYATTA, Circuit Judge. We consider on plain error
review another appeal raising an unpreserved objection to a Rule 11
colloquy conducted prior to the United States Supreme Court's
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). In
Rehaif, the Court held that a conviction for the illegal possession
of a gun under 18 U.S.C. § 922(g) requires proof beyond a
reasonable doubt that the defendant "knew he belonged to the
relevant category of persons barred from possessing a firearm."
Rehaif, 139 S. Ct. at 2200. As we recently explained in United
States v. Burghardt, 939 F.3d 397 (1st Cir. 2019), and again in
United States v. Guzmán-Merced, No. 18-2146, 2020 WL 7585176 (1st
Cir. Dec. 22, 2020), failure to advise a defendant of that
requirement in accepting a plea constitutes clear error. As we
also explained, in the absence of any timely objections to the
plea colloquy, such an error will warrant vacating the conviction
and withdrawing the plea only if the defendant can establish a
"reasonable probability" that, but for the error, the defendant
would not have pled guilty to the offense. Burghardt, 939 F.3d at
403; Guzmán-Merced, 2020 WL 7585176, at *1–2.
Applying this precedent, we find that defendant Juan
Anibal Patrone fails to establish a reasonable probability that he
would not have pled guilty had he been advised as Rehaif requires.
For independent reasons, we also reject his objections to his
sentence. Our reasoning follows.
- 2 - I.
Patrone, a citizen of Italy and of the Dominican
Republic, lawfully entered the United States on a tourist visa and
settled in Lawrence, Massachusetts, in 2009 or 2010. At some
point, his visa expired, although the record does not specify when
this occurred. He subsequently obtained a work permit and was "in
the midst of applying to remain in the United States" at the time
of his arrest in the instant action.
In April 2016, the Drug Enforcement Administration
commenced an investigation into a drug trafficking organization in
Lawrence, Massachusetts. In the course of this investigation, the
government gathered overwhelming evidence that Patrone had been
involved in the widespread distribution and sale of fentanyl and
other drugs for several years. The government also seized a loaded
10 millimeter firearm from his bed at the time of his arrest.
The government charged Patrone with one count of
conspiracy to distribute and possess with intent to distribute
drugs, including cocaine, heroin, and more than 400 grams of
fentanyl, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
(b)(1)(A), and one count of possessing a firearm as an alien
unlawfully present in the United States, in violation of 18 U.S.C.
§ 922(g)(5)(A). The indictment did not allege that Patrone knew
he was an alien who was unlawfully in the United States. See 18
- 3 - U.S.C. § 922(g)(5)(A). On September 19, 2018, he pled guilty to
both counts without benefit of a plea agreement.
Before accepting his guilty plea, the district court
informed Patrone that a conviction for violating
section 922(g)(5)(A) required the government to prove that Patrone
was unlawfully in the United States and that he possessed the
firearm and loaded magazine referenced in the firearm count.
Neither the district court nor the government informed Patrone
that the government would have to prove his knowledge of his
unlawful immigration status in order to sustain a conviction on
the firearm count. Patrone was subsequently sentenced to
144 months' imprisonment on the drug count and 120 months'
imprisonment on the firearm count, to be served concurrently.
A month after Patrone's sentencing, the United States
Supreme Court issued its opinion in Rehaif. As relevant here,
Rehaif's holding means that had Patrone gone to trial, the
government would have needed to prove beyond a reasonable doubt
that when he possessed the gun, he knew that he was unlawfully in
the United States. Rehaif, 139 S. Ct. at 2198. As is customary
in criminal law, we refer to the degree of such knowledge as
"scienter," id. at 2195, or (in this instance) "scienter-of-
status." See Burghardt, 939 F.3d at 400.
Patrone asks that we vacate his conviction on the firearm
count because the government did not charge him with, and he did
- 4 - not plead guilty to, knowing the facts that made him a person
prohibited from possessing a firearm, as Rehaif now requires. In
addition, Patrone requests a remand for resentencing, claiming
that the district court mistakenly applied a two-level sentencing
enhancement for criminal livelihood on the drug charge under U.S.
Sentencing Guideline Section 2D1.1(b)(16)(E). We address each
challenge in turn.
II.
A.
Before accepting a guilty plea, a district court must
conduct a colloquy with the defendant to ensure that he
"understands the elements of the charges that the prosecution would
have to prove at trial." Burghardt, 939 F.3d at 402 (quoting
United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir. 2000));
see also Fed. R. Crim. P. 11(b)(1)(G) ("[T]he court must inform
the defendant of, and determine that the defendant
understands, . . . the nature of each charge to which the
defendant is pleading."). A defendant who pleads guilty does not
waive all challenges to the adequacy of the plea colloquy.
Burghardt, 939 F.3d at 402. Where, as here, a defendant waits
until an appeal to raise such a challenge, we review that challenge
only for plain error. See United States v. Dominguez Benitez, 542
U.S. 74, 80 (2004); Burghardt, 939 F.3d at 402—03; United States
v. Hernández-Maldonado, 793 F.3d 223, 226 (1st Cir. 2015). Under
- 5 - the plain error standard, a defendant must show "(1) an error,
(2) that is clear or obvious, (3) which affects his substantial
rights . . . , and which (4) seriously impugns the fairness,
integrity, or public reputation of the proceeding." United States
v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir. 2015).
The parties agree that, after Rehaif, the district
court's (understandable) failure to ascertain whether Patrone knew
that he was an alien unlawfully in the United States constitutes
clear error. So our inquiry hinges on prongs three and four of
the plain error standard -- whether the district court's error
prejudiced Patrone (i.e., were his substantial rights affected)
and whether the error "seriously impugns the fairness, integrity,
or public reputation of the proceeding." Correa-Osorio, 784 F.3d
at 18. In a case such as this, an assessment of prejudice will
usually turn on whether the defendant can show a "reasonable
probability that, but for the purported error, he would not have
pled guilty." Burghardt, 939 F.3d at 403 (quoting United States
v. Diaz-Concepción, 860 F.3d 32, 38 (1st Cir. 2017)); see generally
Dominguez Benitez, 542 U.S. 74 (2004).
Claiming to accede to plain error review, Patrone
actually argues for a variant of that review. That variant treats
the third prong as always satisfied when the discussion of an
offense during a plea colloquy omits an element of the offense,
regardless of whether the omission actually played any role in the
- 6 - defendant's decision to plead. The Fourth Circuit recently adopted
such a variant, calling Rehaif error a structural error that per
se adversely affects a defendant's substantive rights. United
States v. Gary, 954 F.3d 194, 203–05 (4th Cir. 2020) ("[T]his Court
has held that [structural errors] necessarily affect substantial
rights, satisfying [the plain error standard's] third prong."),
cert. granted, No. 20-444, 2021 WL 77245 (Jan. 8, 2021).
We have already crossed this bridge, but in the opposite
direction, requiring that a defendant who asserts an unpreserved
claim of Rehaif error must demonstrate prejudice in the form of "a
reasonable probability that, but for this purported error, he would
not have pled guilty." Burghardt, 939 F.3d at 403. Nor do we see
good reason to reverse our path. The Supreme Court itself gestures
in the direction we have taken. See Dominguez Benitez, 542 U.S.
at 81 n.6 ("The omission of a single Rule 11 warning without more
is not colorably structural."). And at least two other circuits
have rejected Gary's adoption of Patrone's proffered version of
plain error review in cases such as this. United States v. Hicks,
958 F.3d 399, 401—02 (5th Cir. 2020) (rejecting the Fourth
Circuit's structural error holding in Gary); United States v.
Coleman, 961 F.3d 1024, 1029—30 (8th Cir. 2020) (rejecting the
argument that a plea suffering from a Rehaif error is structural
error and applying a reasonable probability standard to the third
prong of plain error review). Six other circuits proceed more or
- 7 - less as we have, albeit without expressly considering an argument
that a Rehaif error is a structural error that automatically
satisfies the third prong of plain error review. See United States
v. Balde, 943 F.3d 73, 97—98 (2d Cir. 2019) (noting that in some
cases a Rehaif error may have no effect on a defendant's conviction
or decision to plead guilty); United States v. Sanabria-Robreno,
819 F. App'x 80, 82—83 (3d Cir. 2020) (applying a reasonable
probability standard to the third prong of plain error review);
United States v. Hobbs, 953 F.3d 853, 857—58 (6th Cir. 2020)
(same); United States v. Williams, 946 F.3d 968, 975 (7th Cir.
2020) (rejecting a defendant's argument that the government should
bear the burden of persuasion in Rehaif cases and applying a
reasonable probability standard to the third prong of plain error
review); United States v. Fisher, 796 F. App'x 504, 510 (10th Cir.
2019) (applying a reasonable probability standard to the third
prong of plain error review); United States v. McLellan, 958 F.3d
1110, 1119—20 (11th Cir. 2020) (same).
We see no error in the structure of the proceedings in
the district court that necessarily impacted Patrone's substantial
rights; rather, we see an error in describing an offense, the
likely effect of which can often be reasonably discerned from the
facts of the case. Compare Burghardt, 939 F.3d at 404 (finding
that there was no reasonable probability that the defendant would
have pled otherwise), with Guzmán-Merced, 2020 WL 7585176, at *2
- 8 - (finding that there was a reasonable probability the defendant
would not have entered a guilty plea had he known of the scienter-
of-status requirement). Under Patrone's proposed approach, a
defendant not informed that an offense requires proof of his
knowledge that he was not legally within the United States at the
time of his offense could withdraw his plea even if he was carrying
a copy of his affirmed order of removal at the time of the offense.
Finding that such an outcome fits poorly with Rule 52, we opt to
stay the course. Our decision in this case, as in Burghardt and
Guzman, therefore turns on whether there is a reasonable
probability that, but for the error, the outcome of the proceedings
would have been different.
Patrone contends that he would not have pled guilty to
the firearm offense had he known about the scienter-of-status
element, because there was little or no evidence that he knew that
his presence in the United States was unlawful. Certainly the
record as it stood at the plea colloquy was sparse on this
question: It merely established that his arrest occurred long
after his tourist visa had likely expired, and after he had applied
to remain in the United States. This is far from the "overwhelming
proof" of guilt that led us to find no prejudice in Burghardt.
939 F.3d at 404. Perhaps Patrone believed his pending application
to remain in the United States rendered his presence lawful. Of
course, Patrone would have had to consider what additional evidence
- 9 - of scienter-of-status the government might have gathered and
presented, had it known it would be required to do so to secure a
conviction at trial. But at this juncture, the government does
not and cannot reasonably contend that it certainly would have
prevailed at trial had Patrone not pled guilty to the
section 922(g) charge.
Our inquiry, though, does not end with weighing the
likelihood of a conviction in light of the scienter-of-status
element that the government must prove. Other considerations may
also bear heavily on a defendant's decision to plead guilty. For
example, in this case, Patrone had no reasonable option but to
plead guilty to the related and more serious drug charge, for which
the government's proof was overwhelming. Indeed, Patrone makes no
claim that he would not have pled guilty to the drug count had he
thought he might beat the firearm possession count. Even on this
appeal, he does not seek to withdraw his plea on the drug count,
asking for resentencing only if we first find that his GSR must be
recalculated without the two-level leadership enhancement imposed
by the district court. Patrone must have known when he decided to
plead guilty that the drug count would determine the length of his
imprisonment: Both parties -- and Probation, in the PSR --
correctly anticipated that the firearms charge would generate only
a lower, concurrent sentence. And Patrone does not claim that he
anticipated that the firearm count might add any term to his
- 10 - conditions of imprisonment or release after his period of
incarceration. When he pled guilty, Patrone almost certainly knew
that he did not stand to gain anything from proceeding to trial on
the firearms charge, even if an acquittal on that charge was very
likely.
In fact, choosing to proceed to trial on the firearm
charge instead of pleading guilty may well have put Patrone in a
worse position at sentencing, as his ability to retain the three-
level offense reduction for acceptance of responsibility that he
received under the Guidelines would have been uncertain at best.
This circuit has yet to decide whether a defendant indicted on
multiple counts can receive an acceptance of responsibility
reduction when pleading to fewer than all of the counts. See
United States v. Deppe, 509 F.3d 54, 61 (1st Cir. 2007) (declining
to determine whether "acceptance of responsibility is an all[-
]or[-]nothing proposition and [whether] a rebuttable presumption
of non-availability . . . applies where a defendant pleads guilty
to some but not all of the crimes charged in a multi-count
indictment"). But most other circuits addressing this issue have
held either that an all-or-nothing approach should be taken --
that failure to plead to all counts irrevocably removes the
possibility for acceptance-of-responsibility credits -- or that
such credits are lost when the charges pled to and charges
contested unsuccessfully at trial are grouped for purposes of
- 11 - sentencing. See United States v. Hargrove, 478 F.3d 195, 200 (4th
Cir. 2007); United States v. Williams, 344 F.3d 365, 379-81 (3d
Cir. 2003); United States v. Thomas, 242 F.3d 1028, 1034 (11th
Cir. 2001); United States v. Chambers, 195 F.3d 274, 277–79 (6th
Cir. 1999); United States v. Ginn, 87 F.3d 367, 371 (9th Cir.
1996); United States v. Kleinebreil, 966 F.2d 945, 954 (5th Cir.
1992).
So the actual decision Patrone faced was this: Given
that he was pleading guilty to the drug count, should he also plead
guilty to the gun charge, adding nothing to his sentence and
locking in a lower Guidelines sentencing range (GSR),1 or should
he go to trial on the gun charge, thereby triggering a potentially
higher GSR on the drug count? In short, should he go to trial
with no hope of lowering his sentence and a real risk that he might
lengthen it? For virtually all defendants, the choice would be
easy and the answer clear -- plead to both counts in order to lock
in the reduction for acceptance of responsibility to the extent
possible, unless, perhaps, victory was certain.
Patrone counters by suggesting that by avoiding
conviction on the gun charge, he might have garnered a lower GSR
by availing himself of the safety valve provision of 18 U.S.C.
1 The three-level reduction for acceptance of responsibility reduced the GSR from a recommendation of life imprisonment to a recommended range of 324 to 405 months' imprisonment.
- 12 - § 3553(f), which was unavailable to him because of his possession
of a firearm. 18 U.S.C. § 3553(f)(2). But it was Patrone's
possession of the gun -- not the unlawful nature of the possession
-- that rendered the safety valve unavailable. See United States
v. McLean, 409 F.3d 492, 501 (1st Cir. 2005) (holding that "a
defendant who has constructively possessed a firearm in connection
with a drug trafficking offense is ineligible for the safety valve
provisions set forth at 18 U.S.C. § 3553(f)"); see also United
States v. Munyenyezi, 781 F.3d 532, 544 (1st Cir. 2015) ("[A] judge
can find facts for sentencing purposes by a preponderance of the
evidence[.]"). And Patrone has not disputed, either below or on
appeal, that the evidence of his constructive possession of the
firearm in connection with the drug offense was both overwhelming
and unaffected by any need to prove that Patrone knew his
immigration status.
* * *
For the foregoing reasons, Patrone fails to establish
that his substantial rights were affected by the district court's
failure to anticipate Rehaif.2
2 This conclusion obviates the need to consider the fourth prong of plain error review: whether the error "seriously impugns the fairness, integrity, or public reputation of the proceeding." Correa-Osorio, 784 F.3d at 18.
- 13 - B.
We next turn to Patrone's challenge to the livelihood
enhancement that he received at sentencing. The effect of this
enhancement was to raise his GSR from 262—327 months' imprisonment
to 324–405 months'.
The government raises a fair question concerning whether
Patrone preserved any objection to the availability of the
livelihood enhancement. We sidestep that question by holding that,
even if preserved, the objection fails. Our reasoning follows.
U.S. Sentencing Guideline Section 2D1.1(b)(16)(E) adds
two levels to the Guidelines calculation if a defendant is subject
to section 3B1.1 and "committed the offense as part of a pattern
of criminal conduct engaged in as a livelihood." U.S.S.G.
§ 2D1.1(b)(16)(E). "'[P]attern of criminal conduct' and 'engaged
in as a livelihood' have the meaning given such terms in § 4B1.3."
U.S.S.G. § 2D1.1, cmt. n.20(c). Application Note One to
section 4B1.3 states that "[p]attern of criminal conduct" means
"planned criminal acts occurring over a substantial period of time.
Such acts may involve a single course of conduct or independent
offenses." U.S.S.G. § 4B1.3, cmt. n.1. Application Note Two to
§ 4B1.3 defines "[e]ngaged in as a livelihood" as
A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of
- 14 - circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment[,] or the defendant's legitimate employment was merely a front for the defendant's criminal conduct).
Id., cmt. n.2.
Patrone claims that he was not engaged in the business
of selling fentanyl for long enough to render it a "livelihood"
under section 4B1.3. But Patrone pled guilty to conducting his
charged conduct for over a year -- from the government's first
purchase, in a series of controlled buys beginning on May 20, 2016,
until his arrest on May 30, 2017, at which time the government
seized 387 grams from his courier. He points to no authority that
suggests that such a period of time is too short to qualify. And
while we have not addressed the issue, at least five other circuits
have found that periods of even less than twelve months can be
"substantial" for purposes of section 4B1.3. See, e.g., United
States v. Pristell, 941 F.3d 44, 52 (2d Cir. 2019) ("[S]ix months
is consistent with the plain meaning of the phrase 'substantial
period of time.' . . . Indeed, had the sentencing commission
intended to define 'substantial period of time' as no less than
twelve months, it could have chosen to do so, but did not.");
United States v. Cryer, 925 F.2d 828, 830 (5th Cir. 1991)
(describing the application note to § 4B1.3 as "quite clear,"
requiring "only that '[the pattern of] criminal conduct' be the
- 15 - defendant's 'primary occupation' during the relevant twelve-month
span, not that the defendant engage in crime for an entire year,"
and finding that four months of activity was sufficient); United
States v. Reed, 951 F.2d 97, 101 (6th Cir. 1991) ("The seven-month
period [of criminal activity] is long enough to constitute 'a
substantial period of time[]' [under U.S.S.G. § 4B1.3]."); United
States v. Hearrin, 892 F.2d 756, 758 (8th Cir. 1990) (imposing a
criminal livelihood enhancement for criminal conduct over "a
substantial time period of eight months"); United States v. Irvin,
906 F.2d 1424, 1426 (10th Cir. 1990) (interpreting "the phrase 'a
substantial period of time' in [the application notes accompanying
section 4B1.3] to require more than a short, quick, one-time
offense" and finding that five to seven months of activity was
sufficient).
Additionally, the language in the Guidelines and the
relevant application notes does not support Patrone's
interpretation. "Pattern of criminal conduct" includes the
requirement that the planned criminal acts occurred "over a
substantial period of time." U.S.S.G. § 4B1.3 cmt. n.1. "Engaged
in as a livelihood" includes the requirement that the income
derived in any twelve-month period exceeded 2,000 times the then-
existing hourly minimum wage under federal law and that the
criminal conduct was the defendant's primary occupation in that
twelve-month period. Id. cmt. n.2. The "engaged in as a
- 16 - livelihood" factor does not require that a defendant engaged in
criminal conduct for the entirety of twelve months -- one large
criminal activity, resulting in significant profit, could suffice,
if that was a defendant's primary occupation during that time
period. Consequently, there is no reason why we would apply a
twelve-month requirement to the "substantial period of time"
prong.
III.
Based on the foregoing, we affirm Patrone's conviction
and sentence.
- 17 -