Thursday, February 28, 2019

Court Applies Precedent in Rule 11 Plain Error Case, Calls for Revision

US v. Lockhart: Lockhart was charged with being a felon in possession of a firearm and pleaded guilty. During the Rule 11 colloquy, the magistrate judge informed Lockhart that the maximum sentence he faced was ten years in prison. There was no mention of a possible 15-year mandatory minimum sentence under the Armed Career Criminal Act. Sure enough, Lockhart qualified for sentencing under ACCA. Although the probation officer took note of the oversight in the PSR and Lockhart objected to the ACCA classification, he did not object to the failure to be informed of the ACCA statutory changes during his plea or seek to withdraw his plea. After being sentenced to the required 15-year term, Lockhart’s counsel explained that he “went over [ACCA] beforehand” and Lockhart was “fully aware of that.”

On appeal, Lockhart argued, under plain error, that the magistrate judge had erred by failing to advise him of the ACCA impact on his sentencing exposure. The Fourth Circuit panel very reluctantly affirmed Lockhart’s sentence. Writing for the panel, Judge Keenan held that their hands were tied by the court’s 2009 decision in Massenburg. Applying an earlier Supreme Court decision that requires a person to show there was a “reasonable probability” that he would have not pleaded guilty but for the error, Massenburg requires that such a showing “must appear affirmatively on the record.” Judge Keenan points out that this essentially requires a defendant to prove plain error by using the very record evidence that is absence because of the error. Nonetheless, because Massenburg is controlling, Lockhart loses on the third plain-error prong.

Chief Judge Gregory and Judge Floyd both concurred, arguing that Massenburg needs to be revisited.

UPDATE: The court granted rehearing en banc in this case and vacated Lockhart's plea.

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