200 F.3d 871 (D.C. Cir. 2000)
United States of America, Appelleev.Wilbert Jerome Drew, Appellant
No. 98-3120
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 1999Decided January 25, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Columbia(No. 97cr00471-01)
Howard B. Katzoff, appointed by the court, argued the  cause for the appellant.
Florence Pan, Assistant United States Attorney, argued  the cause for the appellee.  Wilma A. Lewis, United States  Attorney, and John R. Fisher, Assistant United States Attorney, were on brief for the appellee.
Before:  Edwards, Chief Judge, Silberman and Henderson,  Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Opinion filed by Chief Judge Edwards concurring in the  judgment.
Karen LeCraft Henderson, Circuit Judge:


1
Wilbert J.  Drew pleaded guilty to one count of possession of a firearm  while subject to a court order in violation of 18 U.S.C.   922(g)(8).  For the first time on appeal Drew argues that  section 922(g)(8) is unconstitutional under the Second and  Fifth Amendments to the United States Constitution.  Drew  also argues that the district court made several sentencing  errors:  (1) in finding under the United States Sentencing  Guidelines (U.S.S.G. or Guidelines) that Drew's relevant conduct included attempted first degree murder;  (2) in applying  the cross-reference provisions, sections 2K2.1 and 2X1.1, of  the Guidelines;  (3) in violating his right to due process by  sentencing him based on attempted first degree murder  supported by hearsay evidence;  and (4) in applying the two level enhancement for restraint of victim pursuant to U.S.S.G.   3A1.3.  We conclude that, because of his guilty plea, Drew  waived his right to challenge the constitutionality of 18 U.S.C.   922(g)(8).  We further conclude that the district court  properly applied the Guidelines' cross-reference provisions  and that Drew's due process challenge to his conviction is  meritless.  Because we believe the district court improperly  applied section 3A1.3's two-level enhancement for restraint of  victim, however, we remand for resentencing without the  enhancement.

I.

2
On December 2, 1997 a grand jury returned a single-count  indictment charging Drew with violation of 18 U.S.C.   922(g)(8).  Two days later the government filed a thirteen count superseding indictment charging inter alia burglary,  kid napping and violation of a protective order.  The charges  arose from Drew's armed forced entry into his estranged  wife's house and his subsequent actions.  At the time of the offense Drew had been married to Renay Short-Drew for  eleven years.  He had physically abused her at least four  times by "smacking, hitting, punching [and] kicking" her. PSR 4.1 On October 14, 1997 Mrs. Drew petitioned the  District of Columbia (District) Superior Court for a civil  protection order (CPO) against Drew and obtained a temporary protection order pending a hearing.  On October 27,  1997 the Superior Court issued a one-year CPO with standard  conditions, using the form used by the Family Division of the  Superior Court.  The CPO required Drew to vacate the  family premises and retrieve his belongings there from with a  police escort, ordered Drew to stay at least 100 feet away  from his wife and their three children, ordered Drew not to  "assault, threaten, harass or physically abuse" his wife or the  children in any manner and allowed Drew to contact her only  through counsel.  Id.  Family counseling was also orderedand was scheduled to begin on November 19, 1997.


3
On November 2, 1997 Drew telephoned Mrs. Drew at about  2:30 a.m.  Distraught, Drew said that he needed help right  away and could not wait until the November 19th family  counseling session.  Drew told her that the system had failed  him, everyone was turning their back on him and he was  contemplating suicide.  See id.  Mrs. Drew suggested he  contact their family doctor.  See id.  When she told him that  she intended to hang up, he threatened to do something  "drastic."  Id.  A few minutes later, Drew broke into their  house by shattering a window.  Mrs. Drew heard the sounds  of breaking glass and someone running up the stairs.  She  locked her bedroom door, grabbed her portable phone and  hid in a closet.  She dialed 911 and requested help.  While  she was on the telephone with the emergency dispatcher,  Drew broke through the bedroom door and then through the  closet door.  He pointed a shotgun in her face and said, "Bitch, get up.  Get out of this closet."  R. Drew Tr. 9.  She  pleaded with Drew, saying "Please, please don't shoot me. Don't kill me.  Don't shoot me with the shotgun."  Id.  When  she attempted to stall by saying that she had to put on her  shoes, Drew declared, "You don't need shoes where you are  going."  A 117.  At gunpoint, Drew forced his wife to walk  out of the bedroom and into the upstairs hallway.  There they  met their 19-year-old son, Tamarkus, and their 15-year-old  son, Jerral.  Still pointing the gun at his wife, Drew said,  "Bitch, walk."  R. Drew Tr. 10.  Drew went down the stairs  in front of Mrs. Drew, continuing to point the shotgun at her,  and told her again to come downstairs.  See A 39.  Eventually she walked down the stairs, stopping a few steps from the  bottom.  Their two sons also walked downstairs, trying to  talk to Drew.  Drew again complained that he was tired, the  system had failed him and he couldn't take it anymore.  He  seemed "unfocused" and his "eyes were glazed over."  Mrs.  Drew cried out again, "Please don't shoot me."  A 118.  At one point, Drew pointed the gun in his wife's face.  See R.  Drew Tr. 11.  He also pulled the trigger of the gun.  See  Szala Tr. 7, 8.  Mrs. Drew heard a "tick" or a "pop" but the  gun did not discharge.  See R. Drew Tr. 11.2  When the gun  did not discharge, Mrs. Drew and her sons jumped on Drew  and attempted to take the gun away from him.  MPD Officer  Paul Szala arrived as they were struggling with Drew and  with his assistance they subdued Drew and Szala placed  Drew under arrest.


4
The government and defense counsel entered into plea  negotiations.  The government initially offered to allow Drew  to plead guilty to two charges--Count One (possession of a  firearm while subject to a court order in violation of 18 U.S.C.   922(g)(8)) and an Information charging burglary while  armed--noting that the Guidelines' base offense level for  Count One would "probably be 24."  Tr. 5/5/98 at 17.  Drew  rejected the offer.  The government then offered to let him plead guilty to Count One only.  Drew first declined and  informed the trial court that he no longer wished to be  represented by his counsel.  After an on the record discussion involving the court, all counsel and Drew, Drew's counsel  and Drew agreed to confer again.  When the parties appeared in court again, one of Drew's lawyers, Assistant  Federal Defender Gregory William Spencer, advised the  court that, pursuant to a written plea agreement, Drew  wanted to plead guilty to Count One.  In exchange for Drew's  guilty plea, the government dismissed all other charges  against him.  The plea agreement reserved the government's  right of allocution at Drew's sentencing but provided that the  government would not oppose a three-level reduction in  Drew's offense level for acceptance of responsibility.  Spencer also indicated:I believe that I was able to review for him the calculations that we believe would be appropriate in this case.  I believe that I was able to discuss with him the calculations that we have tried to foresee that the government may argue, including various reasons for upward departures and various reasons for downward departures.


5
Tr. 6/2/98 at 28.  Before accepting Drew's guilty plea, the  district court referred to the proffer of facts and informed  Drew that, by pleading guilty, he waived the right to appeal  his conviction but retained the right to appeal an illegal  sentence.  Drew agreed with the factual proffer and stated  that he understood he was waiving his right to appeal his  conviction.  See Tr. 6/2/98 at 42.  The court then accepted  Drew's guilty plea.


6
On September 28, 1998 the district court sentenced Drew  to 80 months in prison followed by three years of supervised  release.  In sentencing Drew pursuant to the Guidelines'  cross-reference provisions for firearm offenses, U.S.S.G.   2K2.1 and 2X1.1, the court applied the base offense level  for attempted first degree murder, added a two-level enhancement for restraint of victim under U.S.S.G.  3A1.3 and  allowed a three-level reduction based on acceptance of responsibility, resulting in a total offense level of 27 and a  Guidelines range of 70-87 months.

II.

7
The standard of review applicable to Drew's constitutional  challenge to his conviction is discussed infra.  We review the  district court's application of the Guidelines as follows:"[P]urely legal questions are reviewed de novo;  factual findings are to be affirmed unless 'clearly erroneous';  and [the  Court] give[s] 'due deference' to the district court's application of the guidelines to facts."  United States v. Becraft, 117  F.3d 1450, 1451 (D.C. Cir. 1997) (quotation omitted).

A. Waiver

8
Drew argues that his conviction should be vacated because  the statute under which he pleaded guilty, 18 U.S.C.   922(g)(8), violates the Second and Fifth Amendments to the  United States Constitution.  The government responds that,  by pleading guilty, Drew waived his constitutional challenge."  It is well settled that a voluntary and intelligent plea of  guilty made by an accused person, who has been advised by  competent counsel, may not be collaterally attacked."  Bousley v. United States, 523 U.S. 614, 621 (1998) (quotation  omitted).  The United States Supreme Court has recognized  one exception to the general rule where the defendant's  claimed right is "the right not to be haled into court at all  upon the felony charges."  United States v. Broce, 488 U.S.  563, 574-75 (1989) (quoting Blackledge v. Perry, 417 U.S. 21,  30-31 (1974));  see also Menna v. New York, 423 U.S. 61, 6263 n.2 (1975) ("[A] plea of guilty to a charge does not waive a  claim that--judged on its face--the charge is one which the  State may not constitutionally prosecute.").  Drew contends  that his constitutional challenge falls within the  Blackledge/Menna exception.  We disagree.  In United  States v. Baucum, 80 F.3d 539 (D.C. Cir. 1996), we noted the  error in labeling a challenge to the constitutionality of a  statute a jurisdictional issue.  In Baucum we did not apply  the Blackledge/Menna exception because Baucum challenged  a sentencing statute.  But subsequent cases have made clear that Drew waived his constitutional challenge to 18 U.S.C.   922(g)(8) because he failed to raise his challenge below. See United States v. Badru, 97 F.3d 1471, 1476 (D.C. Cir.  1996) ("[B]ecause Ishmeal Badru's facial constitutional challenge to the 'school-yard statute,' ... is raised for the first  time on appeal, it is barred by" Baucum, 80 F.3d 539)  (internal citation omitted.);  see also United States v. David,  96 F.3d 1477, 1482 (D.C. Cir. 1996) ("We do not reach David's  Commerce Clause challenge to his 18 U.S.C.  922(g)(1)  conviction because he failed to raise the claim in the lower  court.").

B. Attempted First Degree Murder

9
Drew argues that no evidence established that he pulled  the shotgun trigger while pointing the gun at his wife. Because the district court's determination that Drew attempted to commit first degree murder is a factual finding, we review it for "clear error" and accord it "due deference."  See  id.3  Mrs. Drew's grand jury testimony supports the finding  that Drew attempted to murder her:


10
[Prosecutor]:  But what I do need to ask you, you told me that at one point your husband had the gun pointed at you, and you heard the trigger?[Mrs. Drew]:  Yeah.


11
R. Drew Tr. 11.  Furthermore, Officer Szala testified before  the grand jury that Mrs. Drew told him that Drew had  pointed the gun at her face and pulled the trigger.  See Szala  Tr. 7-8.  At sentencing Drew did not contest that the gun  was pointed at Mrs. Drew when he pulled the trigger.  Also  at sentencing the government introduced in evidence the  shotgun recovered from the Drew residence the night of the  offense as well as the indented shell.  Based on this evidence,  the sentencing court did not err, at least not clearly so, in  finding that Drew "took sufficiently premeditated actions to constitute attempted first degree murder."  Drew, 23  F. Supp. 2d at 44.

C. Cross-Reference Provisions

12
Under the Guidelines, the sentence for a violation of 18  U.S.C.  922(g) is calculated by reference to section 2K2.1,  entitled "Unlawful Receipt, Possession, or Transportation of  Firearms or Ammunition."  Section 2K2.1 is divided into  three subsections:  subsection (a) assigns the base offense  level for firearms offenses;  subsection (b) lists specific offense characteristics to increase or decrease the base offense  level;  and subsection (c) is a cross-reference provision, which,  as an alternative to subsections (a) and (b), assigns a potentially higher base offense level to a defendant who uses or  possesses a firearm in connection with the commission or  attempted commission of another crime.  Section 2K2.1 provides in relevant part:


13
(a) Base Offense Level (Apply the Greatest):....


14
(6) 14, if the defendant ... is a prohibited person;....


15
(b) Specific Offense Characteristics....


16
(4) If any firearm was stolen, or had an altered or obliterated serial number, increase by 2 levels.4(5) If the defendant used or possessed any firearm or ammunition in connection with another felony offense..., increase by 4 levels.....


17
(c) Cross Reference(1) If the defendant used or possessed any firearm or ammunition in connection with the commission or at-tempted commission of another offense ..., apply--


18
(A)  2X1.1 (Attempt, Solicitation, or Conspiracy)in respect to that other offense, if the resulting offense level is greater than that determined above.

Section 2X1.1 in turn provides:

19
(a) Base Offense Level:  The base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty5.


20
....(c) Cross Reference(1) When an attempt, solicitation, or conspiracy is expressly covered by another offense guideline section, apply that guideline section.


21
Under section 2K2.1(c), the cross-reference provision, a defendant who uses a firearm to commit or attempt to commit  another crime is assigned the offense level that corresponds  "to that other offense, if the resulting offense level is greater  than that determined" under subsections (a) and (b).  Specifically, section 2K2.1(c) provides that the defendant's offense  level should be determined under section 2X1.1.  Section  2X1.1, in turn, provides that the base offense level for a crime  involving attempt, solicitation or conspiracy should be calculated either by reference to the offense level of the substantive offense, see U.S.S.G.  2X1.1(a), or "[w]hen an attempt,  solicitation, or conspiracy is expressly covered by another  offense guideline section, apply that guideline section," id.   2X1.1(c).


22
Drew argues that the district court erred in applying the  cross-reference provisions of sections 2K2.1 and 2X1.1 to  sentence him under the attempted murder guideline.  See  Drew, 23 F. Supp. 2d at 43-44.  Drew contends that he  should have been sentenced under section 2K2.1(a) & (b)(5)  and that the sentence imposed by the district court violated  his right to due process.

1.  Application of sections 2K2.1 and 2X1.1

23
The district court's interpretation of sections 2K2.1 and  2X1.1 involves a question of law that we review de novo.  See  Becraft, 117 F.3d at 1451.  We must first determine which  subsection of 2K2.1 to apply.  Drew argues that under subsections (a) and (b), his total offense level should be 17 and  his sentencing range should be 30 to 37 months.6  Subsection  (c) of section 2K2.1, however, is the applicable provision  because:  (1) Drew "used or possessed [the] firearm or ammunition in connection with the commission or attempted commission of another offense" namely, attempted first degree  murder, and (2) the resulting base offense level under subsection (c) would be greater than 17.  Section 2K2.1(c) then  refers the sentencing court to section 2X1.1.


24
Section 2X1.1(c) instructs the court to apply the guideline,  if any, that "expressly cover[s]" an attempt to commit "another offense" as used in section 2K2.1(c).  The government  argues that, as the district court determined, Drew attempted  to commit first degree murder because "he had the requisite  state of mind, and took sufficiently premeditated actions to  constitute attempted first degree murder."  Drew, 23  F. Supp. 2d at 44.  As discussed supra, we conclude that the  district court did not clearly err in determining that Drew's  relevant conduct constituted attempted first degree murder. Referring to the guideline for "Assault With Intent to Commit Murder;  Attempted Murder," U.S.S.G.  2A2.1,7  the court applied the base offense level (28) for attempted first  degree murder.  After the two-level increase for restraint of  victim and the three-level reduction for acceptance of responsibility, Drew's total offense level is 27 and his sentencing  range is 70 to 87 months.  See Drew, 23 F. Supp. 2d at 44.


25
Drew further argues, however, that even if section 2K2.1(c)  is applicable, the sentencing court erred in interpreting section 2K2.1(c)'s cross reference to section 2X1.1 because section 2X1.1(a) uses the offense level for the "substantive  offense."  Application Note 2 of section 2X1.1 defines "substantive offense" as "the offense that the defendant was  convicted of ... attempting ... to commit."  Therefore, in  Drew's view, the sentencing court should have applied the  base offense level for the offense of conviction only--possession of a firearm by a prohibited person.  Instead, the  sentencing court, applying section 2X1.1(c), used the base  offense level for attempted first degree murder.  Drew's  argument rests upon the applicability of "substantive offense."  But "substantive offense" relates only to section  2X1.1(a) and (b);  "substantive offense" is not mentioned in  section 2X1.1(c).  Application Note 2, which defines "substantive offense," "applies only if section 2X1.1 is applied directly,  rather than as a cross-reference from section 2K2.1."  United States v. Branch, 91 F.3d 699, 743 (5th Cir. 1996) (quotation  omitted);  see also United States v. Fleming, 8 F.3d 1264,  1266 (8th Cir. 1993).  Therefore, section 2X1.1(c) requires the  court to apply the offense level for attempted first degree  murder prescribed in section 2A2.1.

2.  Due process

26
Drew next argues that his sentence violates his right to due  process because the district court "[i]n effect ... convicted  appellant of attempted murder, and then sentenced him to  the far greater offense," see Petitioner's Br. 26, and relied  upon hearsay evidence in doing so.  Drew concedes that he  never raised his due process claim below but argues that his general challenge to the applicability of the cross-reference  provisions preserved the issue.  See id. 25.  Nevertheless, because the district court lacked the opportunity to rule on the issue, we review Drew's challenge for plain error only. See United States v. Broxton, 926 F.2d 1180, 1183 (D.C. Cir.  1991).  In the sentencing context, we have held that error is  "plain" where it "is obvious under settled law and would  result in grave prejudice or a miscarriage of justice if not  corrected on appeal."  United States v. Watson, 57 F.3d 1093,  1097 & n.6 (D.C. Cir. 1995) (citation omitted).  Drew's challenge falls substantially short of this standard.


27
First, the United States Supreme Court has held that a  sentencing court may consider a defendant's conduct apart  from his offense conduct without violating due process.  See  United States v. Watts, 519 U.S. 148, 151-53 (1997);  Witte v.  United States, 515 U.S. 389, 395 (1995) (consideration of  "relevant conduct" under Guidelines bears on character of  offense of conviction and does not punish for different offense);  Nichols v. United States, 511 U.S. 738, 747 (1994)  (reaffirming propriety of sentencing court's consideration of  "a defendant's past criminal behavior, even if no conviction  resulted from that behavior");  see also 18 U.S.C.  3661 ("No  limitation shall be placed on the information concerning the  background, character, and conduct of a person convicted of  an offense which a court of the United States may receive and  consider for the purpose of imposing an appropriate sentence.").


28
Second, the district court indeed relied in part on Szala's  hearsay testimony.  His testimony corroborated Mrs. Drew's  testimony regarding Drew's actions.  The Supreme Court has  specifically held that the rules of evidence do not restrict the  evidence a sentencing court may consider.  See Nichols, 511  U.S. at 747 ("As a general proposition, a sentencing judge  may appropriately conduct an inquiry broad in scope, largely  unlimited either as to the kind of information he may consider, or the source from which it may come.").  The sentencing  court did not consider any prohibited evidence in sentencing  Drew and, accordingly, we reject his due process claim.

D. Physical restraint

29
Finally, Drew argues that the sentencing court improperly  added a two-level adjustment under U.S.S.G.  3A1.3 for  "physically restrain[ing] [the victim]"8 because he did not  physically touch his wife and any restraint was part of the  offense itself.  The government responds that Drew physically restrained Mrs. Drew by ordering her to leave her bedroom and walk down the stairs at gunpoint.  Whether the  district court properly added the two-level adjustment is a  mixed question of law and fact.  On a mixed question of law  and fact we use a sliding scale depending on the "mix" of the  question.  See United States v. Kim, 232 F.3d 513, 517 (D.C.  Cir. 1994).  Because the facts on this issue are not significantly in dispute, the issue is primarily a question of law and  therefore review closer to de novo is required.  See id.


30
Application Note 1 to section 3A1.3 defines "physically  restrained," referencing commentary to section 1B1.1, as "the  forcible restraint of the victim such as by being tied, bound,  or locked up."  U.S.S.G.  1B1.1.  We agree that "the use of  the modifier 'such as' in the definition of 'physical restraint'  found in  1B1.1, Application Note 1(i), indicates that the  illustrations of physical restraint are listed by way of example  rather than limitation."  United States v. Anglin, 169 F.3d  154, 163 (2d Cir. 1999) (citation and internal quotation marks  omitted).  Nevertheless, the phrase "being tied, bound, or  locked up" indicates that physical restraint requires the defendant either to restrain the victim through bodily contact or  to confine the victim in some way.  See United States v.  Harris, 959 F.2d 246, 265 (D.C. Cir. 1992) (victim was "physically restrained" when defendant's coconspirators beat victim  and detained him for seven days).  While the Ninth Circuit  has decided that forcing someone to move by gunpoint constitutes physical restraint, see United States v. Thompson, 109  F.3d 639, 641 (9th Cir. 1997), no other circuit has found  physical restraint without some type of confinement accompanying the forced movement at gunpoint.  See Anglin, 169 F.3d at 163-64.  As the Second Circuit noted in Anglin, "The  most pertinent definition of 'physical' is 'of the body as  opposed to the mind, as, physical exercise.' "  Id. at 164  (quoting Webster's Deluxe Unabridged Dictionary (1979) at  1353) (emphasis in original).  The required restraint must, as  the language plainly recites, be physical.  While Mrs. Drew  no doubt felt restrained by Drew, she was "not subject to  physical restraint, as we interpret the Guideline's use of that  phrase."  Id. at 164-65.  Any other interpretation would  effectively add the two-level adjustment to almost any attempted murder because presumably any victim would feel  restrained if directed to move at gunpoint.  Because we  conclude that Drew's actions did not include physical restraint, we remand to the district court to resentence without  the two-level adjustment.


31
For the foregoing reasons, we affirm Drew's conviction. We vacate his sentence, however, because of the incorrect  addition of a two-level adjustment for physical restraint of the  victim and remand for resentencing in accordance with this  opinion.


32
So ordered.



Notes:


1
 "PSR" refers to the amended presentence investigation report."A" refers to the Public Appendix and Record Material.  "R. Drew  Tr." refers to the grand jury testimony of Renay Short-Drew."  Szala Tr." refers to the grand jury testimony of Paul Szala, a law  enforcement officer with the District of Columbia Metropolitan  Police Department (MPD).


2
 Forensic testing subsequently established that one of the shells  had been struck by the firing pin, confirming that the trigger had  been pulled.  See Szala Tr. 7.


3
 The district court noted that although sentencing facts must be  proved by a preponderance of the evidence, the findings here had  been proved "beyond a reasonable doubt."  United States v. Drew,  23 F. Supp. 2d 39, 43 n.2 (D.D.C. 1998).


4
 The shotgun had an obliterated serial number.


5
 Application Note 2 of section 2X1.1 defines "substantive offense"  as "the offense that the defendant was convicted of ... attempting  ... to commit."


6
 The level 17 is calculated from the base offense level of 14  because Drew was a prohibited person, see U.S.S.G.  2K2.1(a), to  which is added a two-level adjustment for the gun's obliterated  serial number, see id.  2K2.1(b)(4), and a four-level adjustment for  use of the weapon in connection with another felony offense.  See  id.  2K2.1(b)(5).  With a three-level credit for acceptance of responsibility, see id.  3E1.1(a) and (b), Drew's offense level would  be 17.  We agree with Drew that the district court erroneously added a two-level adjustment for physical restraint of the victim  pursuant to section 3A1.3 of the Guidelines.  See infra at 13-14.


7
 U.S.S.G.  2A2.1 provides:
(a) Base Offense Level:(1) 28, if the object of the offense would have constituted first degree murder.


8
 U.S.S.G.  3A1.3 states, "If a victim was physically restrained in  the course of the offense, increase by 2 levels."



33
Edwards, Chief Judge, concurring in the judgment:


34
I  concur in the judgment of the court.  I write separately,  however, because I feel that the court's disposition of the socalled  Blackledge /Menna issue under the rubric of "waiver"  warrants further explanation.


35
Appellant Drew has argued to the court that his conviction  for violating 18 U.S.C.  922(g)(8), pursuant to a plea of  guilty, must be vacated because the statute, both on its face and as applied in this case,violates the Second and Fifth  Amendments to the Constitution.  The Government, citing  United States v. Broce, 488 U.S. 563 (1989), argues that Drew  is barred from raising these constitutional challenges, because, normally, a guilty plea is not subject to later challenge  before an appellate court.  Drew, citing Blackledge v. Perry,  417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61  (1975), responds that a defendant normally retains the right  to challenge the constitutionality of a statute even following a  guilty plea.


36
The majority opinion holds that Drew's attempt to invoke  the Blackledge/Menna exception fails for two reasons:  first,  the constitutional issues now raised by Drew were "waived"  when he failed to raise them first with the trial court;  and,  second, the constitutional questions need not be reached by  this court, because they do not present a "jurisdictional"  question.  I fail to comprehend this line of analysis in light of  my understanding of the Blackledge/Menna exception.


37
There are a number of potential theories of "waiver" and  "forfeiture" in the criminal context.  One is the well-known  "plain-error" rule, most recently explained in full in United  States v. Olano, 507 U.S. 725, 731 (1993).  As the Court noted  there, "[n]o procedural principle is more familiar to this Court  than that a constitutional right, or a right of any other sort,  may be forfeited in criminal as well as civil cases by the  failure to make timely assertion of the right before a tribunal  having jurisdiction to determine it."  Id. (citations and internal quotation marks omitted).  Absent "plain error," objections not timely raised at trial normally cannot be raised on  appeal.


38
Another theory of forfeiture/waiver arises in the context of  post-trial, collateral attacks.  In such cases, absent a showing of "cause and prejudice," a defendant is barred from raising a  constitutional challenge that could have been raised at trial. See, e.g., United States v. Frady, 456 U.S. 152, 167 (1982).


39
An entirely different line of inquiry arises with respect to  challenges that follow a guilty plea.  As noted above, the  general rule in such cases is that a conviction pursuant to a  guilty plea is not subject to later challenge bfore an appellate  court.  See Bousley v. United States, 523 U.S. 614, 621 (1998).The principal exception to this rule is the so-called Blackledge/Menna principle that "a plea of guilty to a charge does  not waive a claim that--judged on its face--the charge is one  which the State may not constitutionally prosecute."  Menna,  423 U.S. at 62-63 n.2.  The Blackledge/Menna exception does  not depend upon whether the objection is labeled "jurisdictional," at least the Supreme Court has never said this. Rather, the critical issue seems to be whether the constitutional challenge involves a claimed right by the defendant  "not to be haled into court at all upon the felony charge."Broce, 488 U.S. at 575 (quoting Blackledge, 417 U.S. at 3031).  In Broce, the Court made it clear that the Blackledge/Menna exception is not without limits, holding that a  guilty plea barred a later double jeopardy claim where the  violation was not clear on the face of the indictment.  488  U.S. at 576.


40
The question that we face is whether there should be an  additional barrier to the invocation of the Blackledge/Menna  exception, i.e., whether a defendant must raise the constitutional objection before the trial court first in order to be able  to raise it later before an appellate court.  The Supreme  Court has never addressed this issue.


41
Nor has this court ever addressed this issue.  The majority's reliance on United States v. Baucum, 80 F.3d 539 (D.C.  Cir. 1996), United States v. Badru, 97 F.3d 1471 (D.C. Cir.  1996), and United States v. David, 96 F.3d 1477 (D.C. Cir.  1996), is misplaced.Baucum, Badru, and David are simple  "plain error" cases.  Even though they talk in terms of  "waiver" and "bar," they can mean nothing more than "forfeiture."  As the Supreme Court said in Olano, "[w]aiver is  different from forfeiture.  Whereas forfeiture is the failure to  make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right."  507 U.S.  725, 733 (1993) (citations and internal quotation marks omitted).  If the majority means to suggest that, in a post-trial  context, constitutional challenges raised on appeal that were  not raised below are automatically waived--with no possible  inquiry into plain error--that is simply wrong.  The Supreme  Court has made it clear that "[a] rigid and undeviating  judicially declared practice under which courts of review  would invariably and under all circumstances decline to consider all questions which had not previously been specifically  urged would be out of harmony with ... the rules of fundamental justice."  Id. at 732 (quoting Hormel v. Helvering, 312  U.S. 552, 557 (1941)).  The forfeiture analysis as articulated in  Olano is the law of the land, and our circuit has no authority  to change it to some rigid standard of waiver.


42
In any case, Baucum, Badru, and David have nothing  whatsoever to do with the application of the Blackledge/  Menna exception.  The court in Baucum discussed  Blackledge/Menna because the defendant in that case raised  the novel question of whether a facial challenge to the constitutionality of a criminal statute is a jurisdictional question  that can be raised at any time.  80 F.3d at 540.  The panel in  Baucum recognized that the Blackledge/Menna line of authority lent some support to the defendant's claim.  But  Baucum does not purport to apply the Blackledge/Menna  exception.  In fact, Blackledge/Menna has no direct bearing  on the issues in Baucum--it is discussed merely by way of  analogy. So I fail to understand the majority's reliance on  these three cases in its resolution of the Blackledge/Menna issue.


43
The majority opinion appears to suggest that the mere  failure to raise a constitutional challenge before the trial court  automatically "waives" a defendant's right to pursue the  issues in a subsequent attack under the Blackledge/Menna  exception.  The Supreme Court has never said this, and, so  far as I can tell, none of our sister circuits subscribe to such a  rule.


44
If a court faces a situation in which a defendant has pled  guilty to a charge with respect to which it is facially clear that he could not be prosecuted--i.e., as that is understood under  the Blackledge/Menna principle--it would be an extraordinary proposition to say that the defendant will nonetheless go  to jail because he failed to object before the trial court.  The  Fifth Circuit seemed to recognize this problem in United  States v. Knowles, 29 F.3d 947 (5th Cir. 1994).  The defendant there pled guilty to possession of a firearm in a school  zone.  Shortly after judgment in Knowles, the court of appeals, in another case, ruled that the underlying statute upon  which the charge in Knowles was based was unconstitutional,  because Congress had not properly invoked its power under  the Commerce Clause when it enacted the statute.  The  defendant in Knowles never raised this constitutional challenge before the trial court.  The court of appeals, however,  first employed the "plain error" rule to determine whether to  entertain the challenge, then, finding no forfeiture, the court  considered the claim on the merits pursuant to the  Blackledge/Menna exception.  The Fifth Circuit flatly rejected the Government's claim that the defendant's guilty plea  barred consideration of the constitutional claim:


45
Noting that a guilty plea generally waives defects in the underlying proceedings, the government also claims that Knowles's conviction on Count Two is proper because Knowles pleaded guilty.  This argument is not persuasive.  We have reversed other convictions against defendants who had pleadedguilty to charges brought under the Gun Free School Zones Act.  See United States v. Handy, 8 F.3d 20 (5th Cir. 1993) (unpublished).  We have done so for the well-established reason that a guilty plea does not waive the right of the defendant to challenge the constitutionality of the statute under which he is convicted.  See Menna v. New York, 423 U.S. 61, 62-63 n.2, 96 S. Ct. 241, 242 n.2, 46 L.Ed.2d 195 (1975) ("[A]plea of guilty to a charge does not waive a claim that--judged on its face--the charge is one which the State may not constitutionally prosecute.").


46
Id. at 952.


47
In other words, the court in Knowles addressed the forfeiture issue through the normal "plain error" lens, and then applied the Supreme Court's "judged on its face/the charge is  one which the State may not constitutionally prosecute" test  in allowing an invocation of the Blackledge/Menna  exception. I think this is the correct approach.  There are not many  cases in which a defendant is going to be able to satisfy both  the plain error rule and the Blackledge/Menna standard to  gain review where no objection has been raised in the trial  court.  Nonetheless, the Knowles approach ensures protection for those few defendants whose alleged "guilt" is illusory,  because it is clear on the face of the charge that the State had  no constitutionally sound basis upon which to prosecute.


48
Drew argues that section 922(g)(8) violates the Second and  the Fifth Amendments.  These challenges raise no plain  error.  As the Supreme Court has noted, a challenge not  raised below will not meet the plain error standard unless it  "seriously affect[s] the fairness, integrity or public reputation  of judicial proceedings."  Olano, 507 U.S. at 732 (citations  and internal quotation marks omitted).  The issues raised by  Drew do not come close to meeting the high standards of  plain error.  Indeed, as the Government noted in its brief,  Drew's constitutional challenges are largely baseless.  See  Br. and Addendum for Appellee at 11 n.5.


49
I concur in the judgment in the instant case, not simply  because Drew failed to raise his constitutional claims before  the trial court, but because he has failed to demonstrate any  plain error in the judgment based on his guilty plea.  Absent  plain error, I agree that Drew forfeited his right to raise his  claims before this court.  Because there is no plain error in  this case, there is no reason to address whether Drew's claim  on its face implicates the constitutional power of the Government to prosecute.  In short, Drew cannot resort to the  Blackledge/Menna exception to raise his constitutional claims.

