                             ON REHEARING EN BANC

                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4441


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JESMENE LOCKHART, a/k/a Jesmene Laquin-Montre Lockhart, a/k/a Jasmene
Lockhart,

                     Defendant - Appellant.


Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr, District Judge. (3:15-cr-00034-RJC-1)


Argued: September 19, 2019                                     Decided: January 10, 2020


Before GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, AGEE,
KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON,
QUATTLEBAUM, and RUSHING, Circuit Judges.


Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion,
in which Chief Judge Gregory, Judge Wilkinson, Judge Motz, Judge King, Judge Wynn,
Judge Diaz, Judge Floyd, Judge Thacker, Judge Harris, and Judge Richardson joined.
Judge Wilkinson wrote a concurring opinion. Judge Wynn wrote a concurring opinion.
Judge Rushing wrote a dissenting opinion, in which Judge Niemeyer, Judge Agee, and
Judge Quattlebaum joined.
ARGUED: Joshua B. Carpenter, FEDERAL PUBLIC DEFENDERS OF WESTERN
NORTH CAROLINA, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL PUBLIC
DEFENDERS OF WESTERN NORTH CAROLINA, Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.




                                     2
BARBARA MILANO KEENAN, Circuit Judge:

       Jesmene Lockhart appeals his conviction for possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1), and his mandatory minimum 15-year sentence

of imprisonment imposed under the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(ACCA). Lockhart contends that the magistrate judge plainly erred by failing to advise

him during the Rule 11 plea colloquy of his potential exposure to the 15-year mandatory

minimum sentence.      Lockhart asserts that if he had been properly informed of his

sentencing exposure, there is a “reasonable probability” that he would not have pleaded

guilty. He also argues that the Supreme Court’s intervening decision in Rehaif v. United

States, 139 S. Ct. 2191 (2019), renders his guilty plea involuntary, because he did not

understand the essential elements of the offense to which he pleaded guilty.

       Upon consideration of the parties’ arguments, we hold that Lockhart has established

prejudice for purposes of plain error review. We therefore vacate his conviction and

remand the case to the district court for further proceedings.



                                             I.

       In September 2014, officers with the Charlotte-Mecklenburg Police Department in

North Carolina responded to a report of suspicious activity involving individuals in a

parked car. When they arrived at the scene, an officer saw Lockhart sitting in the driver’s

seat of the vehicle. The officer observed Lockhart use his right hand to provide his

identification, “while reaching down by his left leg with his left hand, where the officer

saw the butt of [a] gun with a magazine clip.” The officers recovered the loaded handgun

                                             3
and an additional magazine from the driver’s side of the car, and the authorities later

determined that the firearm was stolen.

        Lockhart pleaded guilty without a written plea agreement to a single count of

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). During

the Rule 11 plea colloquy, the magistrate judge asked the government to “summarize the

charge and the penalty.” The government responded that the “maximum penalty” Lockhart

faced was 10 years’ (120 months’) imprisonment. At no time during the plea colloquy did

the court or the government clarify that Lockhart’s criminal history could result in a 15-

year (180-month) mandatory minimum sentence under the ACCA.

       The probation officer prepared a presentence report (PSR), and recommended

sentencing Lockhart as an armed career criminal under the ACCA based on three prior

convictions for North Carolina robbery with a dangerous weapon. All his convictions were

based on offenses committed in a one-week time period when Lockhart was 16 years old.

In the PSR, the probation officer explicitly highlighted the error in the plea colloquy, noting

that Lockhart “was informed that his statutory penalties . . . were not more than ten years[’]

imprisonment,” but that “based on [Lockhart’s] three prior convictions for violent felonies,

[his] statutory penalties . . . are not less than fifteen years[’] imprisonment.”

       Lockhart’s counsel objected to the proposed ACCA designation on the grounds that

(1) Lockhart’s North Carolina convictions, which were consolidated for judgment, should

count as a single ACCA predicate, and (2) an ACCA sentence would violate the Eighth

Amendment because Lockhart was a juvenile when he committed the offenses. Lockhart



                                               4
did not assert that he previously had been unaware of his potential ACCA designation, nor

did he seek to withdraw his guilty plea.

         After overruling the objections of Lockhart’s counsel, the district court concluded

that Lockhart qualified as an armed career criminal under the ACCA and imposed the

mandatory minimum term of 180 months’ imprisonment. Following the court’s imposition

of sentence, Lockhart’s counsel conferred with the government’s counsel and informed the

court:

         I’m going back to his plea colloquy. He didn’t plead to 924(e) [ACCA] it
         was not on the Bill of Indictment. But I went over it beforehand. So I just
         want to put it on the record that he was fully aware of that. I just thought
         about it.

The government’s counsel added, “We just wanted to make a record of that.” The district

court did not ask counsel to elaborate on the issue, and did not confirm with Lockhart

whether he was aware of his potential ACCA exposure before pleading guilty.

         Lockhart appealed, represented by new appellate counsel. A panel of this Court

affirmed Lockhart’s conviction. See United States v. Lockhart, 917 F.3d 259 (4th Cir.

2019), vacated by 771 F. App’x 204 (4th Cir. 2019). Upon Lockhart’s request for

rehearing, we vacated the panel’s opinion and now consider the case en banc.


                                             II.

         Because Lockhart did not attempt to withdraw his guilty plea in the district court,

we review his plea challenge for plain error. United States v. McCoy, 895 F.3d 358, 364

(4th Cir. 2018). To succeed under plain error review, a defendant must show that: (1) an

error occurred; (2) the error was plain; and (3) the error affected his substantial rights.

                                              5
United States v. Olano, 507 U.S. 725, 732 (1993). We retain the discretion to correct such

an error but will do so “only if the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Massenburg, 564 F.3d 337, 343 (4th

Cir. 2009) (quoting Olano, 507 U.S. at 732) (internal quotation marks omitted).

       Lockhart argues that if he had known he was facing a 180-month minimum sentence

under the ACCA, rather than the 120-month maximum stated at the plea hearing, he likely

would not have pleaded guilty. Lockhart asserts that the benefit he gained from pleading

guilty was “so small as to be virtually non-existent” and, thus, that he would have had a

strong incentive to proceed to a trial in an attempt to avoid the 180-month ACCA sentence.

Lockhart separately argues that the Supreme Court’s decision in Rehaif, 139 S. Ct. 2191,

issued after the panel opinion in this case, constitutes an intervening change in the law that

requires vacatur of his guilty plea.

       In response, the government concedes that the magistrate judge committed plain

error in failing to advise Lockhart of his correct sentencing exposure. However, the

government contends that this error did not affect Lockhart’s substantial rights, because he

has failed to show a “reasonable probability” that he would not have pleaded guilty if the

court had advised him of his correct sentencing range. See United States v. Dominguez

Benitez, 542 U.S. 74, 76 (2004). The government also asserts that the Supreme Court’s

decision in Rehaif does not require that Lockhart’s conviction be vacated.

       In addressing these arguments, we first consider the magistrate judge’s failure to

advise Lockhart of the increased sentence he faced due to his potential ACCA eligibility.

Both parties aver, and we agree, that the first two prongs of plain error review on this issue

                                              6
are satisfied. Under Federal Rule of Criminal Procedure 11, a district court must advise a

defendant of “any maximum possible penalty,” as well as “any mandatory minimum

penalty,” before accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(H), (I).

       And even if a district court is not certain whether a defendant will qualify for an

enhanced sentence under the ACCA, the court nevertheless must “anticipate the possibility

and explain to [the defendant] the sentence that would be applicable if he had prior

qualifying convictions.” United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008); see

also Massenburg, 564 F.3d at 343 (error was plain when defendant was not advised of

potential ACCA sentence before pleading guilty). As the Supreme Court has explained:

       If the judge told the defendant that the maximum possible sentence was 10
       years and then imposed a sentence of 15 years based on ACCA, the defendant
       would have been sorely misled and would have a ground for moving to
       withdraw the plea.

United States v. Rodriquez, 553 U.S. 377, 384 (2008).           Such erroneous sentencing

information given during a Rule 11 colloquy cannot be cured by contrary information later

contained in a PSR. United States v. Goins, 51 F.3d 400, 404 (4th Cir. 1995).

       To establish that a Rule 11 error affected his substantial rights under the third prong

of plain error review, a defendant bears the burden to show “a reasonable probability that,

but for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83.

Although the reasonable probability standard is a demanding one, a defendant need not

“prove by a preponderance of the evidence that but for error things would have been

different.” Id. at 83 n.9. Instead, a defendant must “satisfy the judgment of the reviewing




                                              7
court, informed by the entire record, that the probability of a different result is ‘sufficient

to undermine confidence in the outcome’ of the proceeding.” Id. at 83 (citations omitted).

       In Massenburg, 564 F.3d 337, we applied this “whole record” prejudice inquiry to

the same error presented here, namely, the district court’s failure to advise a defendant of

his potential exposure to an enhanced sentence under the ACCA. And, as here, the

defendant’s PSR included a statement that his criminal history qualified him to receive a

sentence of 180 months to life imprisonment. Id. at 340. Had he pleaded guilty without

the ACCA designation, Massenburg faced a statutory maximum of 120 months’

imprisonment, and a guidelines range of between 77 and 96 months. 1 Applying the

heightened statutory and guidelines ranges imposed by the ACCA, the district court

sentenced Massenburg to a term of 210 months’ imprisonment. Id. at 339.

       Despite this significant increase in his sentence, we held under plain error review

that Massenburg had not shown that the Rule 11 error affected his substantial rights. 564

F.3d at 346. After considering the entire record, we emphasized several facts indicating

that the error had not affected Massenburg’s decision to plead guilty: (1) Massenburg had

not made any “statements on the record . . . suggesting that [he] would not have pleaded

guilty if the district court had properly informed him of the sentencing exposure that he

faced”; (2) Massenburg had not moved to withdraw his guilty plea after learning from the

PSR that he could be sentenced under the ACCA; and (3) the parties did not dispute that

the evidence of Massenburg’s guilt was “strong.” Id. at 343-44.


       1
         This guidelines range accounts for a three-level reduction for acceptance of
responsibility. See USSG Ch. 5 pt. A.
                                              8
         Critical to our analysis was the fact that Massenburg “presented no evidence

suggesting that the [error] affected his decision to plead.” Id. at 346 (emphasis added).

Given this “absence of any evidence in the record” supporting Massenburg’s claim of

prejudice, we concluded that he had not satisfied his burden to show that there was a

“reasonable probability” that he would not have pleaded guilty had he been advised

properly of his sentencing exposure. Id. at 339, 343-46; see Dominguez Benitez, 542 U.S.

at 76.

         With this precedent in mind, we turn to consider the facts in the record before us to

determine whether Lockhart has shown a reasonable probability that he would not have

entered his guilty plea in the absence of the erroneous information he received during the

Rule 11 colloquy. Like Massenburg, Lockhart did not object to the Rule 11 error in the

district court. Nor did he seek to withdraw his guilty plea after learning of his ACCA

exposure. And, like most defendants who plead guilty, the government’s evidence against

Lockhart indisputably was strong.

         Nevertheless, the magistrate judge’s failure to inform Lockhart of the correct

sentencing range was an obvious and significant mistake. Such an error undermines the

very purpose of Rule 11 that a defendant be fully informed of the nature of the charges

against him and of the consequences of his guilty plea. See Massenburg, 564 F.3d at 346;

Hairston, 522 F.3d at 340-41. As a result of this error, Lockhart had every reason to think

after the plea hearing that he would receive a sentence within the stated statutory range of

between zero and 120 months’ imprisonment, with an advisory guidelines range of between

46 and 57 months. 18 U.S.C. § 924(a)(2). This guidelines range included the primary

                                               9
benefit of pleading guilty, namely, a three-level reduction in the base offense level, which

would have lowered Lockhart’s guidelines range from the otherwise-applicable range of

between 63 and 78 months’ imprisonment.

       Additionally, it was reasonable for Lockhart to think that he might receive a

sentence on the low end of his 46 to 57-month guidelines range, because his prior criminal

history was limited to offenses committed within a short time frame while he was a

juvenile. See 18 U.S.C. § 3553(a). Indeed, Lockhart objected to the classification of his

prior convictions as ACCA predicates based in part on his youth at the time they were

committed.

       Lockhart’s “designation as an armed career criminal, however, completely changed

the sentencing calculus” in several notable ways. Hairston, 522 F.3d at 341. First, as

discussed above, the ACCA substantially increased Lockhart’s sentencing exposure, a

crucial consideration for a defendant considering whether to plead guilty. Instead of facing

a statutory range of between zero and 120 months’ imprisonment, Lockhart faced a

minimum sentence of 180 months and a maximum sentence of life imprisonment. 18

U.S.C. § 924(a)(2), (e). His ACCA designation also significantly increased his guidelines

range to between 188 and 235 months in prison, before credit for acceptance of

responsibility. This increase represented a 125-month difference at the bottom of the range.

Such a substantial increase in sentencing exposure obviously would have impacted

Lockhart’s “assessment of his strategic position.” Dominguez Benitez, 542 U.S. at 85.

       Second, unlike the sentencing considerations present in Massenburg, the 180-month

statutory minimum fixed by the ACCA severely restricted any benefit Lockhart could have

                                            10
received by pleading guilty.     As explained above, Lockhart expected to receive an

adjustment for acceptance of responsibility due to his guilty plea, reducing the low end of

his guidelines range by 17 months, from 63 to 46 months, a 27% reduction. However, due

to the ACCA’s 180-month mandatory minimum, the acceptance of responsibility

adjustment only reduced the bottom of his guidelines range by eight months, from 188 to

180 months, a 4.2% reduction. 2 Notably, this reduction in benefit was far greater than the

detrimental impact resulting from the ACCA enhancement in Massenburg. There, because

of Massenburg’s more extensive criminal history, he received about a 23% reduction of

the bottom of his guidelines range due to his acceptance of responsibility, both with and

without the ACCA enhancement.

       There is no evidence in the present record that Lockhart obtained any benefit as a

result of his decision to plead guilty other than the acceptance of responsibility adjustment

to his guidelines calculation. Lockhart was charged with a single count under Section

922(g), and, thus, the government did not dismiss any additional charges in return for

Lockhart’s agreement to plead guilty. Accordingly, once designated an armed career

criminal, the benefit Lockhart received from pleading guilty was an eight-month reduction

of the bottom of his guidelines range. To reiterate, instead of 46 months at the low end of

his guidelines range, Lockhart faced a non-negotiable 180-month minimum with the

ACCA designation. This statutorily imposed minimum also precluded Lockhart from



       2
        We focus on the bottom end of Lockhart’s guidelines range because, as discussed
above, Lockhart had every reason to think he would receive a sentence at the low end of
the range.
                                             11
requesting a downward variance based on his youth at the time he committed his predicate

offenses, or on any other mitigating factors that he otherwise could have asserted in

accordance with 18 U.S.C. § 3553(a).

       Rather than accepting a plea with little benefit, Lockhart could have exercised his

right to require the government to prove at trial all the elements of the offense beyond a

reasonable doubt. And importantly, unlike counsel for Massenburg, Lockhart’s appellate

counsel has represented to this Court that if we vacate Lockhart’s guilty plea, Lockhart will

proceed to trial in the district court. Cf. Massenburg, 564 F.3d at 343 (“Even on appeal,

Massenburg has not alleged that he would have gone to trial in the absence of the district

court’s error.”). Thus, considering the totality of the circumstances relevant to Lockhart’s

potential sentence, we conclude that the required warning about his ACCA exposure would

have had a significant effect on his “assessment of his strategic position.” 3 Dominguez

Benitez, 542 U.S. at 85.




       3
         Consistent with this conclusion, nationwide data show that federal defendants who
are designated armed career criminals decline to plead guilty with noticeable frequency.
U.S. Sentencing Commission, Mandatory Minimum Penalties for Federal Firearms
Offenses in the Federal Criminal Justice System 37 (March 2018), available at
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2018/20180315_Firearms-Mand-Min.pdf. Overall, across all types of cases,
defendants proceed to trial less than 3% of the time. Id. Yet, defendants subject to the
180-month mandatory minimum imposed by the ACCA exercise their right to a trial in
13.5% of cases, more than four times the rate of offenders generally. Id. This trial rate is
higher than that of defendants subject to mandatory minimum sentences generally, and
higher even than defendants subject to the severe mandatory minimum penalties applicable
to convictions under 18 U.S.C. § 924(c). Id. These statistics illustrate the commonsense
conclusion that defendants like Lockhart who have little to gain by pleading guilty are more
likely to take their chances at trial.
                                             12
       We find no merit in the government’s contention that the impact of this Rule 11

error is rendered doubtful by defense counsel’s eleventh-hour statement to the district court

that Lockhart knew about his ACCA designation. Defense counsel made this claim at the

end of the sentencing hearing after conferring with the government’s counsel. We have no

way of evaluating the credibility of defense counsel’s statement. Nor can we assess the

substance of any alleged conversation or whether Lockhart understood his ACCA exposure

as a result. The district court did not ask counsel any clarifying questions, acknowledge

the Rule 11 error, or seek to confirm counsel’s allegation with Lockhart himself. We thus

conclude that counsel’s statement is minimally probative on the question of prejudice.

       We similarly give little weight to the government’s description of Lockhart’s

potential sentencing exposure at the arraignment hearing in this case. Lockhart’s counsel

waived a formal reading of the indictment. While advocating for Lockhart’s pretrial

detention, the government’s counsel stated that the ACCA enhancement “might indeed”

apply to Lockhart, while acknowledging that Lockhart’s criminal history had not yet been

computed. The government also noted that Lockhart’s criminal history consisted of a

single consolidated judgment, which might or might not qualify as multiple ACCA

predicates. Given the government’s assertion at the plea hearing three months later that

Lockhart faced a 10-year maximum, we think the government’s ambiguous reference at

the arraignment hearing plainly was insufficient to provide Lockhart substantive notice of

his ACCA exposure.

       Based on this record, we decline to assume that Lockhart knew of his ACCA

exposure before he pleaded guilty, especially given that he was not trained in the law, the

                                             13
indictment did not reference Section 924(e), he was deprived of his right to be advised

correctly by the court during the Rule 11 hearing, and counsel did not object to the obvious

error made during the plea colloquy.

           Lockhart’s contention of prejudice is strengthened further by the Supreme Court’s

decision in Rehaif, 139 S. Ct. 2191, an intervening change in the law relevant to the validity

of Lockhart’s guilty plea under Section 922(g). 4 In Rehaif, the Supreme Court held that,

to obtain a conviction under Section 922(g), the government “must prove both that the

defendant knew he possessed a firearm and that he knew he belonged to the relevant

category of persons barred from possessing a firearm.” Id. at 2200. The Court’s holding

in Rehaif abrogated the prior precedent of this Circuit, which did not require proof of a

defendant’s knowledge that he belonged to the relevant category. See United States v.

Langley, 62 F.3d 602, 604-06 (4th Cir. 1995), abrogated by Rehaif, 139 S. Ct. 2191.

       At the time Lockhart entered his plea, no one in the courtroom, including Lockhart,

his counsel, the government, or the magistrate judge, understood the essential elements of

the Section 922(g) offense. See Bousley v. United States, 523 U.S. 614, 618-19 (1998); see

also Fed. R. Crim. P. 11(b)(1)(G) (court must advise defendant of “the nature of each

charge to which [he] is pleading” guilty). The requirement that a defendant understand the



       4
         We disagree with the government’s assertion that Lockhart waived his Rehaif
argument by failing to raise it in his opening brief, which was filed before Rehaif was
decided. As we have explained, “an appellant can only ‘abandon’ an argument that was
actually available to him,” and thus may raise a new argument based on an intervening
change in the law during the pendency of an appeal. United States v. White, 836 F.3d 437,
443 (4th Cir. 2016), abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399
(2018).
                                             14
essential elements of the offense to which he pleads guilty is rooted in fundamental

principles of due process. See Bousley, 523 U.S. at 618-19; Henderson v. Morgan, 426

U.S. 637, 644-45 (1976). Given the wholesale misunderstanding of the law at the time of

his plea, Lockhart argues that his guilty plea was involuntary and must be vacated. See

Bousley, 523 U.S. at 618-19; Henderson, 426 U.S. at 644-45.

       The government concedes, and we agree, that the magistrate judge plainly erred in

accepting Lockhart’s guilty plea based on this pre-Rehaif understanding of the law. See

Henderson v. United States, 568 U.S. 266, 268-69 (2013) (question whether an error is

“plain” is determined based on the law at the time of appeal, not at the time the district

court acted). The government argues, however, that we should require Lockhart to show

he was prejudiced by the Rehaif error pursuant to our traditional plain error review, because

the claim was not preserved in the district court. See Olano, 507 U.S. 725.

       We need not, and do not, decide today whether a standalone Rehaif error requires

automatic vacatur of a defendant’s plea, or whether such error should be reviewed for

prejudice under Olano, because Lockhart has satisfied the more demanding Olano standard

based on the two errors before us.         Therefore, given the procedural and factual

circumstances of this case, we hold that the magistrate judge’s failure to properly advise

Lockhart of his ACCA exposure, together with the Rehaif error, in the aggregate are

“sufficient to undermine confidence in the outcome of the proceeding.” Dominguez

Benitez, 542 U.S. at 83 (citation and internal quotation marks omitted).

       Before a defendant enters a plea of guilty, he is entitled to understand the nature of

the offense to which he is admitting guilt and the consequences of his plea. See Bousley,

                                             15
523 U.S. at 618-19; Hairston, 522 F.3d at 340; Fed. R. Crim. P. 11(b)(1)(G)-(I). The errors

that occurred in this case prevented Lockhart from engaging in the calculus necessary to

enter a plea on which this Court can rely in confidence. We therefore hold that those errors

“seriously affect[] the fairness, integrity or public reputation of judicial proceedings.”

Olano, 507 U.S. at 732 (citation and internal quotation marks omitted). Accordingly, we

exercise our discretion on plain error review and provide Lockhart with the remedy of

vacating his guilty plea and conviction. Id.



                                                 III.

       For these reasons, we vacate Lockhart’s plea and conviction, and remand the case

to the district court for further proceedings.

                                                            VACATED AND REMANDED




                                                 16
WILKINSON, Circuit Judge, concurring:

       I am pleased to concur in Judge Keenan’s fine opinion in this case. The unusual

circumstances here persuade me that the proper remedy is to vacate Lockhart’s guilty plea.

Under the facts presented, I believe the majority has rightly found “a reasonable probability

that, but for the error, [Lockhart] would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 76 (2004).

                                              I.

       There are many reasons why guilty pleas are ordinarily deemed final in our criminal

justice system. See United States v. Davila, 569 U.S. 597, 608 (2013) (underscoring “the

particular importance of the finality of guilty pleas”) (quoting Dominguez Benitez, 542 U.S.

at 82). For one, a guilty plea is uniquely susceptible to buyer’s remorse. A veritable barrage

of what-ifs will naturally befall a defendant biding his time in the penitentiary—not least

of which is the possibility, however unrealistic, that the jury may have found him innocent.

Without a meaningful concept of finality, courts would find themselves confronting the

reopening of countless cases.

       A second reason for finality is that guilty pleas inure to the benefit of defendants

and prosecutors alike. From the defendant’s point of view, pleas offer an option of

measured leniency—valuable leverage in negotiations for a lighter sentence or a dismissal

of charges. Defendants can dangle before beleaguered prosecutors the tempting prospect

of dispensing with the delays and burdens of a trial. And the finality of a plea ironically

can protect defendants from themselves, and the harsher consequences that may await the

rescission of a beneficial bargain. As for the government, the system of guilty pleas is


                                             17
“indispensable in the operation of the modern criminal justice system,” Dominguez Benitez,

542 U.S. at 83. Pleas afford the government the ability to seek prompt resolution of cases

through a regularized process that has its share of critics, to be sure, but one that bears the

earmarks of justice, among them the presence of defense counsel and the necessity of

voluntary and knowledgeable consent.

       In short, courts should honor the terms of these deals much as they do a contract.

See Garza v. Idaho, 139 S. Ct. 738, 744 (2019) (observing that “plea bargains are

essentially contracts”) (internal citation omitted). As with any contract, plea negotiations

come freighted with external pressures, among them the relative strength of the

government’s case. And guilty pleas, like any other binding agreement, rest on a tradeoff

between present certainty and future risk. Parties are willing to gain the surety of today in

exchange for foregoing the promise and hazards of tomorrow. The stability of law rests in

no small part on the sanctity of contract, and these bargains warrant respect.

       In keeping with these observations, I do not lightly join the majority in vacating

Lockhart’s plea. But the errors in this case, as I see it, warped two inputs central to a

defendant’s decision to waive or to exercise his right to trial: his sentencing exposure and

the strength of the government’s case against him. Taking the first, the majority rightly

acknowledges that a defendant’s sentencing exposure is “a crucial consideration for a

defendant considering whether to plead guilty.” Maj. Op. at 10. And the magistrate judge

in this case committed plain error under Federal Rule of Criminal Procedure Rule 11 by

misadvising Lockhart about this consideration. Lockhart, to wit, was led to believe that he

faced a 10-year maximum sentence when he in fact faced a 15-year mandatory minimum

                                              18
with a maximum of life in prison under ACCA. Indeed, once we account for the correct

exposures, it is clear that Lockhart gained rather little by pleading guilty. As the majority

notes, “once designated an armed career criminal, the benefit Lockhart received from

pleading guilty was an eight-month reduction of the bottom of his guidelines range.” Maj.

Op. at 11.

       While the PSR with which Lockhart confirmed his familiarity at sentencing

corrected this error, the district court never spelled out to Lockhart the magistrate judge’s

mistake. See J.A. 35-53. In view of the overall strength of the government’s case, however,

which included the fact that the police saw him trying to dispose of the Glock nine-

millimeter pistol under the car seat as they approached, it is difficult to believe that this

error by itself affected Lockhart’s decision not to go to trial. In other words, it should not

by itself entitle Lockhart to relief. For the “burden should not be too easy” for defendants

on plain-error review, Dominguez Benitez, 542 U.S. at 82, else they could sandbag trial

courts by pointing out errors long after the opportunity to take curative action has passed.

A reviewing court, then, “must look to the entire record, not to the plea proceedings alone,”

in assessing whether it is reasonably probable that a defendant would have gone to trial

absent the error. Id. at 80.

       The majority’s probing review of the record is faithful to that instruction: It

identifies a “possible defense[] that appear[s] from the record,” which bears on the “overall

strength of the Government’s case”—namely, Lockhart’s Rehaif defense to his § 922(g)

felon-in-possession charge. Id. at 85. In Rehaif v. United States, 139 S. Ct. 2191 (2019),

the Supreme Court held that a felon-in-possession charge under § 922(g) requires the

                                             19
government to prove not only that a defendant knew he possessed a firearm, but also that

he knew his status as a felon when he possessed it, id. at 2194. On this front, Lockhart

argues that he had little reason to know, as the statute requires, that he was a felon. Indeed,

his prior convictions arose from a single state-court judgment when he was 16 years old

and this fact, he argues, would make proving the mens rea for this element a non-trivial lift

for the government.

       I am skeptical of this assertion for several reasons. First, Lockhart’s allocution

statement seems to admit that he knew he was a felon when he committed the charged

crime. J.A. 47. Second, Lockhart who claims no knowledge of his felon status spent well

over a year in prison for his prior state convictions. Again, if Lockhart’s Rehaif defense

was all there was, that alone in my view would not have indicated a reasonable probability

that Lockhart would have gone to trial absent the error. As with the Rule 11 error, the

presence of this Rehaif defense would not by itself entitle Lockhart to relief.

       I agree with the majority opinion, however, that “in the aggregate” these errors “‘are

sufficient to undermine confidence in the outcome of the proceeding.’” Maj. Op. at 15

(quoting Domingez Benitez, 542 U.S. at 83). Whereas neither error considered in isolation

would, as I see it, entitle Lockhart to relief under the reasonable probability standard, the

two factors in combination are more troubling than either standing alone. And that is not

all. As precedent requires, see Dominguez Benitez, 542 U.S. at 83, the record contains

affirmative evidence that this proceeding, taken as a whole, affected the defendant’s

calculus.



                                              20
       On that score, Lockhart’s counsel exhibited “starkly odd behavior” in conferring

with the Assistant United States Attorney and volunteering to the district court that

Lockhart knew about his potential ACCA enhancement—after the sentencing hearing had

already concluded. Lockhart, 917 F.3d at 268 (Floyd, J., concurring in the judgment).

While Lockhart’s counsel may have been acting in an effort to protect what he saw as a

beneficial plea agreement, the fact that Lockhart never had the opportunity during the

pendency of sentencing proceedings to personally confirm or deny his knowledge of the

ACCA enhancement is, when combined with the earlier confusion, problematic. See J.A.

35-53. A few days later, Lockhart filed a pro se notice of appeal requesting a new lawyer.

Because Lockhart’s case never went to trial, this request may well have related to

miscommunications surrounding Lockhart’s guilty plea. And, if construed in Lockhart’s

favor, it suggests that Lockhart’s counsel, as well as the magistrate judge, gave him bad

advice.

       In short, too much went wrong here. Plea and sentencing proceedings need not be

styled to perfection, but they must be fair. See Fed. R. Crim. P. 11(h) (subjecting Rule 11

mistakes to harmless error review). And just as different facts may counsel hesitation

before we disturb the finality of guilty pleas, so also may a different result be required for

ostensibly similar cases arising in a different procedural posture. The greatest degree of

caution is required before we permit withdrawal of guilty pleas on collateral review. The

Supreme Court has long recognized the diminished finality interests accorded to a criminal

conviction on direct review. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)

(“The reason most frequently advanced in our cases for distinguishing between direct and

                                             21
collateral review is the State’s interest in the finality of convictions that have survived

direct review within the state court system.”). This applies with equal force to guilty pleas.

In fact, “[t]he interest in finality of guilty pleas . . . is of somewhat lesser weight when a

direct appeal is involved.” Fed. R. Crim. P. 11 advisory committee’s note (1983).

       The majority is right to say that “the reasonable probability standard is a demanding

one” for a defendant wishing to upset the finality of a guilty plea. Maj. Op. at 7. But that

standard does not leave us bereft of the ability to correct serious misfires in the plea

bargaining process. Because this case arises on direct review, and because the particular

circumstances surrounding the intervening Rehaif decision and the original Rule 11 error

are enough in combination to establish a “reasonable probability” under Dominguez

Benitez, I believe this is one of those unusual cases where vacating a defendant’s plea is

appropriate.




                                             22
WYNN, Circuit Judge, concurring:

       I concur fully in the majority opinion’s thorough analysis of the district court’s

failure to properly advise Lockhart of the potential sentence he faced under the Armed

Career Criminal Act. I also join the majority’s conclusion that “the magistrate judge

plainly erred in accepting Lockhart’s guilty plea based on [a] pre-Rehaif understanding of

the law.” Maj. Op. at 15 (referring to Rehaif v. United States, 139 S. Ct. 2191 (2019)).

However, the majority does not—but should—take this opportunity to answer a central

question that Rehaif left unaddressed: What standard should courts use to decide whether

to vacate a conviction tainted by Rehaif error?

       As the majority notes, at the third step of the Olano inquiry, a defendant must show

that the error affected his substantial rights. Maj. Op. at 5-6 (citing United States v. Olano,

507 U.S. 725, 732 (1993)). “[I]n most cases,” for an error to have affected substantial

rights under Federal Rule of Criminal Procedure 52(a) or (b), it “must have been

prejudicial: It must have affected the outcome of the district court proceedings.” Olano,

507 U.S. at 734. However, there is “a limited class of fundamental constitutional errors

that . . . are so intrinsically harmful as to require automatic reversal . . . without regard to

their effect on the outcome.” Neder v. United States, 527 U.S. 1, 7 (1999) (citing Fed. R.

Crim. P. 52(a)). Under Rule 52(b) plain-error review, this Court has held that such

“structural errors” “necessarily affect substantial rights, satisfying Olano’s third prong.”

United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014) (citing United States

v. David, 83 F.3d 638, 647 (4th Cir. 1996)). This Court has not yet determined whether a

Rehaif error is a structural error.


                                              23
       The majority explicitly avoids this question by finding sufficient prejudice in the

Rehaif error combined with the erroneous sentencing information Lockhart received during

the Rule 11 colloquy. In effect, the majority opinion adds very little to the jurisprudence

interpreting Rehaif because Lockhart was prejudiced by the Rule 11 error standing alone.

The opinion should go further and evaluate whether, and on what basis, the Rehaif error

provides an alternative justification for vacating Lockhart’s guilty plea and conviction.

       Courts will need to decide what defendants must show in order to obtain relief under

Rehaif—that is, if defendants who can demonstrate Rehaif errors on plain-error review can

automatically satisfy the third prong of Olano, or if such defendants must show prejudice

arising from the error. Rather than leave this important issue to a future panel, in my view,

this en banc Court should confront it. The question is squarely presented in this case. The

Court should not save for another day what it can do now. Instead, the Court should take

this opportunity to provide clarity for parties facing uncertainty after Rehaif.




                                             24
RUSHING,       Circuit    Judge,    with    whom      Judges    NIEMEYER,         AGEE,      and

QUATTLEBAUM join, dissenting:

       I respectfully dissent. This Court’s authority to vacate a guilty plea and conviction

is strictly circumscribed where, as here, the defendant did not move to withdraw his guilty

plea in the district court or attempt to bring the errors complained of on appeal to the district

court’s attention in any fashion. The limits on our authority are not discretionary—they

are imposed by the Federal Rules of Criminal Procedure, Supreme Court decisions, and

precedent from this Court. In my view, faithful application of those limits requires

affirmance. Lockhart has not satisfied his burden to show that the Rule 11 error or the

Rehaif error, separately or combined, affected his substantial rights.

                                               I.

       If a defendant believes that an error has occurred to his detriment in a federal

criminal proceeding, “he must object in order to preserve the issue.” Puckett v. United

States, 556 U.S. 129, 134 (2009); see Fed. R. Crim. P. 51(b). “If he fails to do so in a

timely manner, his claim for relief from the error is forfeited.” Puckett, 556 U.S. at 134;

see United States v. Olano, 507 U.S. 725, 731 (1993); Yakus v. United States, 321 U.S.

414, 444 (1944). “If an error is not properly preserved, appellate-court authority to remedy

the error . . . is strictly circumscribed.” Puckett, 556 U.S. at 134.

       Rule 52(b) of the Federal Rules of Criminal Procedure creates “a limited exception”

to the appellate preclusion that follows a defendant’s forfeiture of an error in the district

court. Puckett, 556 U.S. at 135. Under Rule 52(b), “[a] plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention.” The


                                               25
Supreme Court has instructed that so-called “plain-error review” has four requirements:

(1) an error; (2) that is clear; (3) that affected the defendant’s “substantial rights,” which

ordinarily requires that the error “‘affected the outcome’” of the proceedings; and (4) that

“‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.’”

Puckett, 556 U.S. at 135 (first alteration in original) (quoting Olano, 507 U.S. at 734, 736).

If the first three requirements are not satisfied, a court of appeals “ha[s] no authority to

correct” the error. Olano, 507 U.S. at 741. Even if those requirements are satisfied, the

court may remedy the error at its discretion only if the fourth requirement is also satisfied.

Puckett, 556 U.S. at 135; Olano, 507 U.S. at 732. The defendant bears the burden of

establishing entitlement to relief at every step of the analysis. United States v. Dominguez

Benitez, 542 U.S. 74, 82 (2004); see United States v. Vonn, 535 U.S. 55, 59 (2002).

       To establish the prejudice required at the third step of this analysis, “a defendant

who seeks reversal of his conviction after a guilty plea, on the ground that the district court

committed plain error [in accepting his plea] under Rule 11, must show a reasonable

probability that, but for the error, he would not have entered the plea.” Dominguez Benitez,

542 U.S. at 83. Relief on appeal from a guilty plea is “difficult to get” under this standard,

“as it should be.” Id. at 83 n.9. By design, this standard “demand[s] strenuous exertion to

get relief for unpreserved error,” in order to “encourage timely objections,” “reduce

wasteful reversals,” and accord proper respect to “the finality of guilty pleas,” which are

“indispensable” to “the modern criminal justice system” and “usually rest, after all, on a

defendant’s profession of guilt in open court.” Id. at 82–83. An appellate court must

consider “the entire record,” not merely the plea hearing, in assessing whether the

                                              26
defendant has carried his burden to show that it is reasonably probable he would not have

pleaded guilty absent the error. Id. at 83; see Vonn, 535 U.S. at 59.

                                             II.

       Lockhart pleaded guilty to possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1), and was sentenced to the mandatory minimum term of imprisonment

applicable to his crime in light of his history as an armed career criminal. See 18 U.S.C.

§ 924(e). On appeal, Lockhart identifies two errors in the district court proceedings that

he did not raise below. First, during the plea colloquy, the magistrate judge did not advise

Lockhart of the increased sentence he could face because of his potential eligibility under

the Armed Career Criminal Act (ACCA). I agree with the majority that this was a clear

error under Rule 11(b)(1)(H) and (I). See United States v. Hairston, 522 F.3d 336, 340–

341 (4th Cir. 2008) (holding that, although a district court “could not [be] certain” about

whether ACCA would apply at the time of a Rule 11 proceeding, the court nevertheless

must “anticipate the possibility” and inform the defendant ACCA “could” potentially

apply). Second, no one informed Lockhart that the crime to which he pleaded guilty

required the Government to prove, or Lockhart to admit, that he knew, when he possessed

the firearm, that he had previously been convicted of a crime punishable by imprisonment

for more than one year. I agree with the majority that, in light of the Supreme Court’s

recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), this was also an error

that was clear by the time of our en banc deliberation in this case. I part ways with the

majority at the third step of the analysis—the prejudice inquiry. Lockhart has not shown a

reasonable probability that, but for these errors, he would not have entered his plea.

                                             27
                                            A.

       Beginning with the Rule 11 error, the Court must consider the entire record to

determine whether Lockhart has shown a reasonable probability that, but for the magistrate

judge’s failure to correct the Government’s misstatement of Lockhart’s sentencing

exposure during the plea colloquy, he would not have pleaded guilty. See Dominguez

Benitez, 542 U.S. at 83. The Court is not at liberty to “upset a plea solely because of post

hoc assertions from a defendant about how he would have pleaded” absent the error; rather,

the Court must “look to contemporaneous evidence to substantiate a defendant’s expressed

preferences.” Lee v. United States, 137 S. Ct. 1958, 1967 (2017). As the Supreme Court

has instructed, the Court should consider evidence that Lockhart was correctly informed

elsewhere about his sentencing exposure. See Vonn, 535 U.S. at 75 (considering evidence

that the defendant was informed of his right to trial counsel before the plea proceeding);

Dominguez Benitez, 542 U.S. at 84–85 (requiring consideration of “other facts that may

have borne on [the defendant’s] choice regardless of any Rule 11 error”).

       During his arraignment proceeding—before he entered a plea—Lockhart was

correctly advised that “the ordinary maximum punishment is up to 10 years[’]

imprisonment” but that, “if [he had] three previous convictions for a violent felony or

serious drug offense, the minimum term would be 15 years and the maximum sentence

[would be] life imprisonment.” J.A. 13. The Government specifically advised that,

“[w]hile his criminal history [had not] been computed,” the Government “[thought] that

[the enhanced penalty] might indeed apply here.” J.A. 13. In response, Lockhart’s counsel

previewed that he “would argue that it’s 10 years.” J.A. 15.

                                            28
       The presentence report—prepared after Lockhart pleaded guilty—correctly advised

Lockhart that, under ACCA, he was subject to a mandatory minimum of 15 years in prison

and a maximum of life. J.A. 80–82, 86. The presentence report specifically noted that,

during the plea hearing, Lockhart had been misinformed that his maximum sentencing

exposure was 10 years in prison when in fact his mandatory minimum sentence was 15

years. J.A. 87. Lockhart received the presentence report and filed objections, including

objecting to the application of ACCA on the grounds that he was a juvenile at the time of

the predicate offenses and that the offenses were part of one continuous string of robberies.

J.A. 63–64. But Lockhart never objected to the application of ACCA on the ground that

he had been misinformed about his sentencing exposure at the time he pleaded guilty. Nor

did Lockhart attempt to withdraw his guilty plea after the presentence report correctly

informed him of his sentencing range, despite his right to withdraw his plea before

sentencing for “a fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B).

       At sentencing, Lockhart was again correctly informed about the mandatory

minimum sentence and expressed no surprise or confusion. To the contrary, he confirmed

that he had read the presentence report, reviewed it with his attorney, and understood it.

The district court sentenced Lockhart to the mandatory minimum of 15 years in prison

pursuant to ACCA. After the court pronounced the sentence, Lockhart’s counsel asked to

confer with the Government’s attorney. After he did so, Lockhart’s counsel stated: “I’m

going back to his plea colloquy. He didn’t plead to [ACCA;] it was not on the Bill of

Indictment. But I went over it beforehand. So I just want to put it on the record that he

was fully aware of that. I just thought about it.” J.A. 51–52. That statement is consistent

                                             29
with the record, and no one has questioned counsel’s credibility. But see Maj. Op., supra,

at 13 (“We have no way of evaluating the credibility of defense counsel’s statement.”).

Lockhart did not dispute the accuracy of his attorney’s representation at sentencing, nor

has he disputed it on appeal. 1 The arraignment, the presentence report, defense counsel’s

statement, and the absence of any adverse response from Lockhart are powerful indicators

that Lockhart would have persisted in his guilty plea even if he had been given correct

information about his potential sentencing exposure during the plea hearing.

       The Court should also consider “the overall strength of the Government’s case and

any possible defenses that appear from the record,” as the Supreme Court has instructed.

Dominguez Benitez, 542 U.S. at 85. Police found Lockhart sitting in the front seat of a car

with a loaded pistol beside him and an extra magazine in the pocket of the driver’s side

door. Lockhart told the officers he was trying to push the gun under the seat when they

arrived. Lockhart had been convicted of multiple felonies punishable by one year or more

in prison at the time he possessed the gun and, as will be discussed, see infra II.B., the

evidence indicates that Lockhart knew he was a felon at the time. In light of these facts,

one could fairly ask what Lockhart “could gain by going to trial.” Dominguez Benitez, 542

U.S. 85. In contrast, by pleading guilty, Lockhart shaved eight months off the bottom of

his Guideline sentencing range, moving the range as low as possible in light of the statutory


       1
        Judge Wilkinson notes that Lockhart requested a new attorney on appeal. Conc.
Op., supra, at 21. We do not know the reason for this request, which could have related to
any number of grievances, including “buyer’s remorse.” Conc. Op., supra, at 17.
Importantly, Lockhart does not claim that he requested new counsel because his prior
counsel misspoke when he told the court Lockhart was “fully aware” of the ACCA
enhancement.
                                             30
mandatory minimum. Cf. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018)

(“Any amount of actual jail time is significant . . . .” (internal quotation marks and

alteration omitted)).

       The majority correctly observes that that the most closely analogous precedent is

our decision in United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009). Maj. Op.,

supra, at 8. Massenburg was also misinformed at his plea hearing that he faced a ten-year

maximum prison sentence for pleading guilty to being a felon in possession of a firearm

when, in fact, ACCA applied and subjected him to a 15-year mandatory minimum. As

here, the presentence report included the correct ACCA calculation. The district court

sentenced Massenburg to 210 months in prison. On appeal, we concluded that Massenburg

had failed to demonstrate prejudice under plain-error review. As the majority correctly

summarizes, we emphasized several facts, each of which applies equally here:

“(1) Massenburg had not made any statements on the record suggesting that he would not

have pleaded guilty if the district court had properly informed him of the sentencing

exposure that he faced; (2) Massenburg had not moved to withdraw his guilty plea after

learning from the [presentence report] that he could be sentenced under the ACCA; and

(3) the parties did not dispute that the evidence of Massenberg’s guilt was strong.” Maj.

Op., supra, at 8 (internal quotations marks and alterations omitted). This Court’s decision

in Massenburg compels the conclusion that Lockhart also has not carried his burden to

demonstrate prejudice.

       Indeed, Lockhart’s case for prejudice is even weaker than Massenberg’s.          In

addition to the shared facts listed above, Lockhart was correctly informed at his

                                            31
arraignment—before pleading guilty—that ACCA’s increased sentencing range could

apply to him. And Lockhart’s attorney—who attended the arraignment—later represented

to the district court in Lockhart’s presence that counsel “went over [ACCA] beforehand”

with Lockhart and Lockhart “was fully aware” that ACCA’s enhanced penalty may apply.

J.A. 51–52. In light of Massenburg, Lockhart surely has failed to show “a reasonable

probability that, but for the error [at his plea hearing], he would not have entered the plea.”

Dominguez Benitez, 542 U.S. at 83.

       The majority attempts to distinguish Massenburg and finds prejudice from the Rule

11 error based on the fact that “ACCA substantially increased Lockhart’s sentencing

exposure” and “severely restricted any benefit Lockhart could have received by pleading

guilty.”   Maj. Op., supra, at 10–11.        Of course, ACCA “substantially increased”

Massenburg’s sentencing exposure too, and it typically will—that is its purpose. Compare

18 U.S.C. § 924(a)(2) with 18 U.S.C. § 924(e)(1). And a defendant’s “assessment of his

strategic position” certainly is relevant to discerning whether he would have pleaded guilty

absent the Rule 11 error. Dominguez Benitez, 542 U.S. at 85. But in my view, these

strategic considerations cannot carry Lockhart’s burden in light of the evidence that he was

repeatedly correctly informed of his sentencing exposure and yet, despite knowing his

strategic position full well, never objected to the Rule 11 error, never moved to withdraw

his guilty plea, and never indicated that he would not have pleaded guilty absent the error




                                              32
in his plea hearing. 2 To rely on abstract strategic considerations alone and turn a blind eye

to countervailing facts in the record about Lockhart’s actual decisions in the district court

borders on presuming prejudice, and it gives short shrift to the Supreme Court’s instruction

that the reviewing court’s judgment should be “informed by the entire record.” Dominguez

Benitez, 542 U.S. at 83. As we recognized in Massenburg, “[d]efendants plead guilty for

various reasons, many of which are wholly unrelated to the length of a potential sentence.”

564 F.3d at 344. Lockhart has not told us why he pleaded guilty, and he is not required to.

But neither has he given us reason to believe that, but for the magistrate judge’s error in

the plea hearing, he would not have entered his plea.

                                             B.

       Moving to the Rehaif error, I cannot conclude that Lockhart has shown that this

error “‘affected the outcome of the district court proceedings.’” Puckett, 556 U.S. at 135

(quoting Olano, 507 U.S. at 734). I assume, as the majority does, that the Rehaif error is

subject to plain-error review. See Maj. Op., supra, at 15. Indeed, “while Rehaif’s impact

is only beginning to be addressed, courts have thus far unanimously applied a plain error

standard in addressing convictions obtained before that decision.” United States v. Balde,


       2
         The majority cites United States v. Hairston, 522 F.3d 336 (4th Cir. 2008), in
which the district court also failed to correctly inform the defendant of his sentencing
exposure under ACCA. Application of the ACCA enhancement in that case “seemed to
take the parties by surprise.” Id. at 339. The defendant moved to withdraw his guilty plea,
explaining to the district court that he would not have pleaded guilty had he been aware of
his ACCA exposure because “[his] kids would never see [him] again.” Id. There was
“nothing in the record to show that [the defendant] otherwise had knowledge” of the ACCA
enhancement. Id. at 341–342. Because the defendant preserved his objection in the district
court, plain-error review did not apply, and the Government bore the burden on appeal to
demonstrate that the error was harmless.
                                             33
943 F.3d 73, 92 (2d Cir. 2019). Despite purporting to apply plain-error review, however,

the majority does not identify any additional prejudice it believes Lockhart suffered from

the Rehaif error. See Maj. Op., supra, at 15. I would hold that Lockhart has not carried

his burden.

       The Court must again evaluate the error against the entire record. See Dominguez

Benitez, 542 U.S. at 83; Vonn, 535 U.S. at 59. Lockhart admitted in the factual basis for

his plea that he had been convicted of an offense punishable by more than one year in

prison and that his firearm rights had not been restored. J.A. 21. The record shows that in

2006, Lockhart pleaded guilty in state court to six counts of robbery with a dangerous

weapon and four counts of conspiracy to commit robbery with a dangerous weapon. J.A.

72–73; S.J.A. 1–5. The “transcript of plea” from the state court indicates that each of these

offenses is a felony and the “maximum punishment” for each is more than one year of

imprisonment. S.J.A. 5. Lockhart received two consecutive sentences of between 38 and

55 months in prison for these convictions, which were consolidated into two judgments.

Lockhart spent over six years in prison for these offenses. Roughly three years after his

release, Lockhart was arrested on the instant felon-in-possession charge. When the officers

arrested Lockhart, he told them that he was trying to push the gun under the seat of the car,

apparently to hide it.    J.A. 21.   And at his sentencing, Lockhart admitted that he

“possess[ed] a firearm when [he] knew [he] was a felon,” explaining that he kept the gun

because he felt “like [his] family’s life was in danger.” J.A. 47.

       This evidence that Lockhart knew he had been convicted of a crime punishable by

imprisonment exceeding one year when he possessed the firearm, see 18 U.S.C.

                                             34
§ 922(g)(1), strongly suggests that he would have persisted in his guilty plea even if he had

been correctly instructed in accord with Rehaif. Lockhart argues that, if he had known of

this element, he could have decided to put the Government to its proof at trial. But the

preceding review of the record “reveals no reason to think that the government would have

had any difficulty at all in offering overwhelming proof that [Lockhart] knew that he had

previously been convicted of offenses punishable by more than a year in prison.” United

States v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019); see Rehaif, 139 S. Ct. at 2198

(noting that a defendant’s knowledge of his status can be inferred from circumstantial

evidence). Like our sister circuits have held in similar cases concerning Rehaif errors in

convictions under 18 U.S.C. § 922(g)(1), I would hold that Lockhart has failed to prove

the prejudice required to vacate his guilty plea on plain-error review. See Burghardt, 939

F.3d at 405–406 (rejecting challenge to Rehaif error in guilty plea on plain-error review in

light of the whole record); United States v. Williams, 776 Fed. App. 387, 388 (8th Cir.

2019) (per curiam) (same); United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019)

(rejecting challenge to Rehaif error in jury trial on plain-error review in light of the whole

record); United States v. Hollingshed, 940 F.3d 410, 415–416 (8th Cir. 2019) (same);

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (same); United States v.

Mancillas, No. 19-1151, 2020 WL 88794, at *1–2 (7th Cir. Jan. 7, 2020) (same); United

States v. Johnson, 781 Fed. App. 370, 371 (5th Cir. 2019) (per curiam) (rejecting challenge

to Rehaif error in factual basis for guilty plea on plain-error review in light of the whole

record); United States v. Denson, 774 Fed. App. 184, 185 (5th Cir. 2019) (per curiam)



                                             35
(same); United States v. Fisher, No. 18-3234, 2019 WL 6522869, at *5 (10th Cir. Dec. 4.

2019) (same).

                                            C.

      Having concluded that Lockhart has failed to show a reasonable probability that he

would not have pleaded guilty but for the Rule 11 error or the Rehaif error, I also do not

find his case for prejudice to be strengthened by combining those errors. “Errors are

commonplace, . . . and our affection for procedural perfection cannot operate to the

detriment of our commitment to other, equally important, principles of adjudication.”

Massenburg, 564 F.3d at 345. Those principles include the limits on our power as a

reviewing court to remedy unpreserved errors. Because Lockhart has not shown that the

errors in this case affected the outcome of the proceedings, this Court “ha[s] no authority

to correct [them].” Olano, 507 U.S. at 741. I would affirm.




                                            36
