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Sotomayor Pens Lone Dissent in Response to Kavanaugh’s ‘Common Sense’ Ruling Against Convicted Felons in Possession of Guns


Associate Justice Sonia Sotomayor sits during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

The Supreme Court on Monday all-but unanimously rolled back the forms of relief available for a narrow class of criminal defendants convicted of federal gun crimes in two consolidated cases.

Justice Brett Kavanaugh delivered the opinion of a unanimous court in regards to the first, and namesake, case in Greer v. United States. Meanwhile Justice Sonia Sotomayor, who clarified her reservations while ultimately agreeing with the majority in Greer, dissented from the ruling in the second case stylized as United States v. Gary.

In each case, the defendants were convicted of violating a federal law prohibiting people from possessing a gun if they have been convicted of a crime that can be punished with more than one year in prison.

Greer was convicted after a jury trial. Gary pleaded guilty.

The appeals process played out in each case due to the recent high court decision in Rehaif v. United States which held the government must prove two things in order to win convictions based on the so-called “felon in-possession offense”: (1) that the defendant knew they possessed a firearm; and (2) that the defendant knew they belonged to the relevant category of persons barred from possessing a firearm.

Each of the defendants were convicted prior to the Rehaif ruling and raised arguments on appeal based on the notion that the knowledge requirements had been changed and would have been instrumental to their cases. Gregory Greer argued he might not have been convicted if the now-necessary jury instructions were used in his case. Michael Andrew Gary similarly argued that he wouldn’t have pleaded guilty.

In real terms, the law changed so neither defendant was: (1) aware of the actual state of the law; or (2) able to preserve the relevant procedural objections at the time.

The legal reality was different.

Here, each of the defendants: (1) technically “forfeited” the claims that made up the basis of their appeals; because (2) they failed “to preserve” the necessary objections based on the changed law at the relevant time under the Federal Rules of Criminal Procedure–again, which they couldn’t have possibly known about at the time the law says they had to have made such objections for them to count.

Justice Kavanaugh explains how the justices view the state of the law:

Under Rule 51(b) of the Federal Rules of Criminal Procedure, a defendant can preserve a claim of error “by informing the court” of the claimed error when the relevant “court ruling or order is made or sought.” If the defendant has “an opportunity to object” and fails to do so, he forfeits the claim of error. If the defendant later raises the forfeited claim on appeal, Rule 52(b)’s plain-error standard applies.

Here, both defendants forfeited their mens rea [mental state] claims by failing to properly preserve them under Rule 51(b). We therefore conduct plain-error review under Rule 52(b).

In these two cases, all nine justices determined that there were errors during the district court proceedings and that those errors were plain–satisfying two-thirds of the relevant rule at stake. Where the majority and the dissent part ways is the determination of whether or not those plain errors impacted the defendants’ “substantial rights.”

Kavanaugh explains the court’s determination:

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily knows he is a felon. “Felony status is simply not the kind of thing that one forgets.”

“Here, Greer and Gary have not carried the burden of showing that the Rehaif errors in their respective cases affected their substantial rights,” the majority opinion continues. “Before their respective felon-in-possession offenses, both Greer and Gary had been convicted of multiple felonies. Those prior convictions are substantial evidence that they knew they were felons. Neither defendant has ever disputed the fact of their prior convictions.”

Sotomayor, on the other hand, doesn’t rely on the majority opinion’s invocation of “common sense” to reach her decisions but rather procedural points of law.

In Greer’s case, where she agreed with the court but clarified a different method to obtain the same result, she notes that the defendant “had notice of the Rehaif requirement and an opportunity to rebut the force of this evidence [but] [h]e has not done so.”

“He therefore has not shown a reasonable probability that the jury in an error-free trial would reasonably doubt that he knew of his felon status when he possessed the gun,” the left-wing justice goes on. “As a result, the error did not affect his substantial rights.”

In Gary’s case, however, Sotomayor dissented in full.

On appeal, Gary essentially won in the Fourth Circuit. The nation’s high court remanded with instructions that Gary lost. Sotomayor believes the case should be remanded back down to the Fourth Circuit but she would not have given the appellate judges specific instructions on how to dispose of the case.

“I agree that automatic relief is inappropriate,” she notes. “Gary must therefore make a case-specific showing that the error affected his substantial rights. Unlike Greer, Gary argues he can do so.”

In other words, Sotomayor is pointing out that Gary has raised the relevant procedural safeguards at the relevant times in light of the Rehaif ruling to the best of his possible ability and would have simply given him a chance to prove his case again.

Sotomayor also added a lot of dicta about the seemingly unfair application of the law–essentially upbraiding the majority’s “common sense” theory:

Today’s decision also should not be read to create a legal presumption that every individual convicted of a felony understands he is a felon. The Government must prove the knowledge-of-status element beyond a reasonable doubt, just like any other element. Standing alone, the fact of a prior felony conviction is hardly enough to meet that exacting standard. Individuals convicted of crimes carrying a potential term of incarceration of more than one year may “ordinarily” or “typically” know that fact. But that is a far cry from proof beyond a reasonable doubt that any individual person on trial knew his status when he possessed a gun.

Nor does today’s decision impose a uniquely heavy burden on defendants who must establish that a Rehaif error affected their substantial rights. Such defendants must make only the same showing as any other defendant at this stage: a reasonable probability of a different outcome. Defendants who show a reasonable probability that a properly instructed jury would have had reasonable doubts about the knowledge-of-status element are entitled to relief.

There are many reasons a defendant might not know a prior conviction could have led to a sentence of more than a year in prison. Most obviously, as the Court recognized in Rehaif, “a person who was convicted of a prior crime but sentenced only to probation [may] not know that the crime [was] ‘punishable by imprisonment for a term exceeding one year.’”

[image via Erin Schaff-Pool/Getty Images]

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