                                     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: November 15, 2018                                  Decided: February 27, 2019


Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion stating the judgment of
the Court. Chief Judge Gregory wrote a separate opinion, concurring in the judgment.
Judge Floyd wrote a separate opinion, concurring in the judgment.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., 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
DEFENDERS OF WESTERN NORTH CAROLINA, INC., 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. 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.

          Our holding today is restricted by this Court’s decision in United States v.

Massenburg, 564 F.3d 337 (4th Cir. 2009), which imposes an extreme burden on a

defendant seeking plain error review of a court’s failure to provide correct sentencing

information before accepting a guilty plea. Under Massenburg, irrespective of the extent

of the court’s error, a defendant on plain error review affirmatively must show a

reasonable probability that he would not have pleaded guilty if he had been correctly

advised of his sentencing exposure. See id. at 343-46. The defendant is held to this

standard even though the Rule 11 error committed by the district court left him in the

dark regarding one of the most critical considerations in the guilty plea calculus, namely,

his sentencing exposure. But because we are bound by the holding in Massenburg, we

conclude that Lockhart has failed to satisfy his evidentiary burden and we affirm the

district court’s judgment.



                                            3
                                            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

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’ 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 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. 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[’]



                                            4
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) his 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. Notably, Lockhart 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 15 years’ imprisonment. Following the court’s imposition

of sentence, Lockhart’s counsel conferred with the government 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 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 now

appeals, represented by new appellate counsel.



                                              II.

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

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


                                               5
364 (4th Cir. 2018). To succeed under plain error review, a defendant bears the burden to

show that: (1) an error occurred; (2) the error was plain; and (3) the error affected his

substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). This Court retains

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.” Massenburg, 564 F.3d at

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

       Lockhart argues that if he had known he would be facing a 15-year minimum

sentence under the ACCA, rather than the 10-year 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 request a trial to try to avoid the 15-year ACCA sentence. 1

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

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

government contends that Lockhart 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). Applying

Massenburg, we agree with the government.

       1
         In support of this argument, Lockhart maintains that: (1) the three-level reduction
in his Guidelines calculation for acceptance of responsibility reduced the bottom of his
Guidelines range by only eight months; (2) mitigating factors in his background,
including his youth at the time of the predicate offenses, would have supported a
downward variance irrespective whether he pleaded guilty; and (3) if he had not pleaded
guilty to the felon in possession charge, the government might have offered him a more
favorable plea deal for possession of a stolen firearm, in violation of 18 U.S.C. § 922(j),
which charge would not have triggered the ACCA enhancement.

                                              6
       Initially, we agree with the parties that the first two prongs of plain error review

are satisfied here. 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 (plain error when defendant 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). Accordingly, we conclude that by

failing to inform Lockhart of his potential eligibility for a mandatory minimum 15-year

sentence under the ACCA, the magistrate judge committed error that was plain.

       To establish that a Rule 11 error affected his substantial rights, 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. This standard is a demanding one,

requiring a defendant to “satisfy the judgment of the reviewing 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. (citations omitted).


                                            7
       In Massenburg, 564 F.3d 337, we directly addressed this “reasonable probability”

standard in the context of incorrect sentencing information provided at a Rule 11 plea

colloquy. There, in circumstances nearly identical to the case now before us, a district

court failed to inform the defendant during his plea colloquy that he might receive an

enhanced ACCA sentence, contrary to later information in the PSR that the defendant’s

record qualified him to receive such a sentence. Id. at 340. We declined to impose a

presumption of prejudice for that error, despite the significant increase in sentencing

exposure caused by the ACCA designation.            Id. at 341, 344-46.   In adopting this

approach, we emphasized that the confines of plain error review reflect the importance of

timely raising objections in the district court. Id. at 345-46.

       In considering whether Massenburg had shown an effect on his substantial rights

for purposes of plain error review, we reviewed the record in accordance with Supreme

Court precedent and emphasized three main considerations: (1) whether there were any

“statements on the record . . . suggesting that [the defendant] would not have pleaded

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

faced”; (2) whether the defendant moved to withdraw his guilty plea after learning from

the PSR that he could be sentenced under the ACCA; and (3) the strength of the

government’s case against him. Id. at 343-44. Applying those factors, we observed that

there was an “absence of any evidence in the record suggesting that [Massenburg] would

not have entered his plea in the absence of the error,” and that the government’s evidence

was strong. Id. at 344. We therefore concluded that Massenburg had not satisfied the

“reasonable probability” standard. Id. at 339, 343-46.

                                              8
       To obtain relief on plain error review, a defendant who has been given materially

incorrect sentencing information at his plea colloquy must show that there is a reasonable

probability he would not have pleaded guilty if he had been correctly advised. Id. at 343

(citing Dominguez Benitez, 542 U.S. at 83). Under Massenburg, this showing must

appear affirmatively on the record, notwithstanding that the essence of plain error review

is the defendant’s failure to object to such error in the trial court. See id. at 343-44; Fed.

R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.” (emphasis added)); see generally

Olano, 507 U.S. at 733-34. Thus, a defendant who has been misled by the court’s

misinformation regarding his sentencing exposure effectively is penalized on plain error

review by the very nature of the court’s plain error.

       As a matter of simple logic, the problem created by such an error, namely, the

entry of a guilty plea that is not knowing and voluntary, cannot be cured by contrary

information later provided in a PSR. United States v. Goins, 51 F.3d 400, 404 (4th Cir.

1995). A defendant has a right to rely on the accuracy of the information provided by the

court on which his plea is based. A plea that is predicated on a defendant’s ignorance of

his sentencing exposure strikes at the very heart of our criminal justice system. And,

while plain error review reflects the defendant’s failure to preserve his objection to the

trial court’s error, Massenburg strongly suggests that to succeed on plain error review,

the defendant must have stated on the record in the trial court that the error affected his

plea decision, and that he must have moved to withdraw his plea after learning of his

actual sentencing exposure.

                                              9
       Under Dominguez Benitez, a defendant is not required to make such an affirmative

statement on the trial record or to move to withdraw his plea after learning of his true

sentencing exposure. Instead, under the Supreme Court’s holding, a defendant who has

been advised incorrectly by the court at his Rule 11 hearing can demonstrate an effect on

his substantial rights by showing based on the totality of the circumstances in the record,

that there is a reasonable likelihood he would have gone to trial if the court had advised

him correctly. See 542 U.S. at 83 (holding that a defendant must “satisfy the judgment of

the reviewing court, informed by the entire record, that the probability of a different

result is ‘sufficient to undermine confidence in the outcome’ of the proceeding” (citations

omitted)). But this Court in Massenburg has required more. 2

       Under Massenburg, we are constrained to conclude that Lockhart has not shown

that his substantial rights were affected by the district court’s error. As in Massenburg,

Lockhart did not make any statement on the record indicating that he would have

proceeded to trial if he had been given the correct sentencing information. See 564 F.3d

at 343-44. Nor did Lockhart express surprise at the statement in the PSR of a potential


       2
          Absent the holding in Massenburg, we would further consider whether the
magnitude of the present error created a reasonable probability of a different result by
impairing Lockhart’s ability to evaluate the relative risks and benefits of pleading guilty
versus proceeding to trial. See United States v. Rivera-Maldonado, 560 F.3d 16, 17, 20-
21 (1st Cir. 2009) (vacating guilty plea on plain error review when court informed the
defendant that he faced a three-year maximum term of supervised release, when he
actually faced a maximum term of life, because “the erroneous information dramatically
altered the sentencing stakes for the defendant”); United States v. Monie, 858 F.3d 1029,
1032-34 (6th Cir. 2017) (citing Rivera-Maldonado, 560 F.3d at 21) (vacating guilty plea
on plain error review when defendant was not informed of ACCA exposure).


                                            10
ACCA designation or seek to withdraw his plea on that basis. And the government

proffered strong evidence supporting the felon in possession charge, based on recovery of

a firearm and ammunition from the driver’s side of a vehicle while Lockhart was sitting

in the driver’s seat. Accordingly, bound by the holding of Massenburg, we conclude that

Lockhart has failed to demonstrate plain error affecting his substantial rights.



                                             III.

       We affirm the district court’s judgment.



                                                                                   AFFIRMED




                                             11
GREGORY, Chief Judge, concurring in the judgment:

       According to the record evidence, Jesmene Lockhart entered into a guilty plea

without the district court properly informing him of his true sentencing exposure. In

contract cases involving a property interest, this Court would likely grant a party in

Lockhart’s position rescission based on unilateral mistake.       Unfortunately, this is a

criminal case, and the liberty interests of defendants such as Lockhart are not afforded the

same level of relief. The majority operates under the mistaken belief that the scales of

justice are constrained by United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009) and

the circular logic it employs. Consequently, despite the majority’s trepidation about the

injustice Massenburg represents, it still acquiesces to an analysis that reflexively

prohibits defendants from obtaining a second chance to make an informed choice after

being misinformed by the district court.

       Massenburg relies on the Supreme Court’s holding in United States v. Dominguez

Benitez, 542 U.S. 74 (2004). There, the Supreme Court held “that a defendant who seeks

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

committed plain error under Rule 11, must show a reasonable probability that, but for the

error, he would not have entered the plea. A defendant must thus satisfy the judgment of

the reviewing court, informed by the entire record, that the probability of a different

result is sufficient to undermine confidence in the outcome of the proceeding.” 542 U.S.

at 83 (internal quotation marks and citations omitted).

       Applying Dominguez Benitez, this Court in Massenburg conducted a plain error

review of the entire record, examining (1) whether there were any “statements on the

                                            12
record . . . suggesting that [the defendant] would not have pleaded guilty if the district

court had properly informed him of the sentencing exposure that he faced”; (2) whether

the defendant moved to withdraw his guilty plea after learning from the PSR that he

could be sentenced under the ACCA; and (3) the strength of the government’s case

against him. 564 F.3d at 343-44.

      Upon a closer examination, the considerations used by this Circuit in Massenburg

create a circular logic that prevents defendants from successfully pursuing appellate

relief. On the one hand, the defendant’s silence at the time of the Rule 11 proceedings

compels us to use the plain error standard. On the other hand, we use the defendant’s

silence, as evidenced by lack of statements in the record and a lack of an attempt to

withdraw the guilty plea, to also deny the defendant relief. It is unjust that the same

silence that compels this Court to use plain error review also compels us to deny relief

under that same standard of review. The Massenburg Court also looks at the strength of

the Government’s case against the defendant. However, Rule 11 cases always occur in

the context of a defendant taking a guilty plea, and defendants generally do not plead

guilty when the case against them is weak. This is yet another example of how the

Massenburg Court employs a nonsensical rubric against a defendant. As the majority

points out, defendants seeking relief under plain error review should face a higher

burden, but Massenburg makes this burden impossible to meet.

      A proper review of the entire record in this case materially affects the outcome in

Lockhart. See Dominguez Benitez, 542 U.S. at 80 (explaining that in assessing the effect

of Rule 11 error, a reviewing court must look to the entire record, not to the plea


                                               13
proceedings alone).    The majority notes that at the end of the sentencing hearing

Lockhart’s lawyer and the United States Attorney conferred in order to make the court

aware that Lockhart was allegedly informed of the ACCA enhancement even though the

court had not informed him of it, and the Bill of Indictment did not list it. Though

Lockhart’s attorney represented to the court that he had informed Lockhart of his

sentencing exposure, a pro se notice of appeal filed by Lockhart a mere five days later

indicates otherwise. In that notice, Lockhart requested that the court appoint a new

lawyer “because my last lawyer did not____me right.” *

      This portion of the record viewed in context indicates Lockhart’s dissatisfaction

with the advice of his counsel. Indeed, the attorney’s eleventh-hour attempt to address

the omission of the ACCA enhancement in the Bill of Indictment strongly supports the

inference that Lockhart was not fully or properly advised by the court or his attorney of

the criminal consequences of his plea.      Moreover, the grievance against Lockhart’s

attorney communicated in his pro se notice of appeal can only be related to advice and

communication surrounding his guilty plea given that this case never went to trial.

      The deficiencies in communication to Lockhart, both by the court and his attorney,

undermine the confidence this Court should have in the integrity of the sentencing court’s

proceedings and strongly suggests that misinformation materially impacted Lockhart’s

substantial rights. This is especially true because the ACCA enhancement meant that

Lockhart faced a maximum of life imprisonment even with the guilty plea. Given that

      *
        The electronic record obfuscates the missing word and the original record was
destroyed.


                                               14
Lockhart actually faced life imprisonment, rather than the ten years the district court

communicated to him, there is a reasonable probability that but for being misinformed, he

would not have entered into the plea. This satisfies the contested third prong of the plain

error analysis and demonstrates that the error “affect[ed] the substantial rights” of

Lockhart. United States v. Olano, 507 U.S. 725, 732 (1993).

       Lockhart entered a guilty plea based on misinformation.         It resulted in five

additional years of jail time but could have resulted in life imprisonment. This Court

chooses to uphold the circular logic of Massenburg and further buttress a system that tells

defendants that our failure to inform you about your criminal liability does not impact

your ability to choose to enter a guilty plea or stand trial. The Massenburg Court and

now the Lockhart Court tells defendants that even if we misinform you, you are still

better off taking a plea, a proposition that flies in the face of a criminal justice system

where willful, voluntary, and informed choices are the bedrock of a system where

transparency and accountability are of paramount importance. Nonetheless, given our

flawed precedent, I am constrained to concur in the judgment and deny Lockhart the

opportunity to make a properly informed decision about whether to exercise his

constitutional right to stand trial. Now may be the time for this Court to remove the

cloud of Massenburg that obscures a better understanding of the Supreme Court’s

holding in Dominguez Benitez so that defendants receive the protections that our

Constitution promises them.




                                               15
FLOYD, Circuit Judge, concurring in the judgment:

    Like my colleagues, I believe that the outcome of Lockhart’s appeal is constrained by

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

believe that there are sound reasons for this Court to revisit Massenburg and limit its

precedential scope.

    In Massenburg, we correctly stated that in order to prevail on plain-error review, an

appellant like Lockhart must show a “reasonable probability” that he would not have

pleaded guilty if he had been correctly informed of his sentencing exposure. 564 F.3d at

343 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). Personally, I

find that rule-statement somewhat difficult to reconcile with Massenburg’s analysis.

Indeed, if we were to go through Massenburg and replace each instance of “reasonable

probability” with “virtual certainty,” it seems to me that the opinion would read quite

well. Therein lies the problem. Although our opinion in Massenburg correctly recites

the rule of Dominguez Benitez, its three-factor analysis has the regrettable effect of

setting the bar too high for appellants in Lockhart’s position.

    Were we to apply Dominguez Benitez to this case directly, rather than filtering it

through the prism of Massenburg, I cannot help but think that we would have ample

reason to vacate Lockhart’s conviction. After all, unlike in Dominguez Benitez, it is quite

easy to see here how the court’s error during Lockhart’s Rule 11 hearing “could have had

an effect on [Lockhart’s] assessment of his strategic position.” 542 U.S. at 85. Lockhart

tells us that from the start, he expected a sentence at the low end of the recommended

range.   His expectation was not unreasonable, considering the relatively innocuous


                                             16
circumstances of his offense. Since it was reasonable for him to expect a sentence at the

low end of the recommended range, it was also reasonable for him to try to shave as

many years off the low end of the recommended range as possible. A guilty plea would

have been a rational way to accomplish that goal before he knew that he would be

sentenced as an armed career criminal, but not after.

    Consider the percentages.       Taking Lockhart’s PSR and the 2016 Sentencing

Guidelines as our benchmark, it appears likely that if Lockhart had not been sentenced as

an armed career criminal, his guilty plea would have dropped the low end of the

recommended sentencing range from 5.25 years to 3.83 years—a 26.9% reduction. But

because Lockhart was sentenced as an armed career criminal, his guilty plea had a much

smaller effect and made much less sense, given his goal: his plea dropped the low end of

his sentencing exposure from 15.67 years to 15 years—a mere 4.2% reduction. In

essence, the initial rationale underlying Lockhart’s guilty plea was rendered all-but

nonsensical by his later designation as an armed career criminal. 1

    Added to this numerical analysis is the starkly odd behavior of Lockhart’s counsel,

and Lockhart’s apparent displeasure with same (which my colleagues have aptly

highlighted). These factors convince me that if we were not constrained by Massenburg,

we would grant relief to Lockhart. This is particularly so given that, as I understand it,

“reasonably probable” does not mean “more likely than not.” See Dominguez Benitez,

       1
        These numbers are necessarily estimates, and I do not mean to suggest that we
should use this sort of quantitative analysis to decide all cases like the one at bar. The
percentages referenced here are useful only insofar as they help to illustrate the logic of
an argument that Lockhart makes on appeal.


                                            17
542 U.S. at 86–87 (Scalia, J., concurring); Strickland v. Washington, 466 U.S. 668, 693-

94 (1984) (distinguishing between “reasonable probability” and “more likely than not,”

and clarifying that the former is less demanding than the latter).

    Finally, I agree with my colleagues that holding a defendant’s silence against him in

these circumstances is improper. When a defendant, by his apparent silence, fails to

preserve his objection to a mistake made during a Rule 11 hearing, the consequence is

that we review for plain error. Once we have entered the realm of plain-error review, it

makes no sense to continue to hold the defendant’s silence against him. Yet Massenburg

urges us to do exactly that. “The defendant failed to register any surprise or dismay on

the record,” we say. “Therefore, we review for plain error. In reviewing for plain error,

we note that the defendant expressed neither surprise nor dismay when informed of his

actual sentencing exposure, which weighs against him now.” This is quicksand; we

should distance ourselves from it.

    I believe that our decision in Massenburg has had the unintended effect of chipping

away at our ability to safeguard the legitimacy of criminal-justice proceedings. This case

presents an excellent opportunity for us to do some mild course-correction.




                                             18
