United States Court of Appeals For the First Circuit

No. 19-1486

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN ANIBAL PATRONE, a/k/a Juan Anibal, a/k/a Juan Anibal Patrone-González, a/k/a Flacco, a/k/a Poppo, a/k/a Carlos,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Thompson, Lipez, and Kayatta, Circuit Judges.

Leonard E. Milligan III, with whom Jin-Ho King and Milligan Rona Duran & King LLC were on brief, for appellant. Theodore B. Heinrich, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

January 14, 2021 KAYATTA, Circuit Judge. We consider on plain error

review another appeal raising an unpreserved objection to a Rule 11

colloquy conducted prior to the United States Supreme Court's

decision in Rehaif v. United States,

(2019). In

Rehaif, the Court held that a conviction for the illegal possession

of a gun under

(g) requires proof beyond a

reasonable doubt that the defendant "knew he belonged to the

relevant category of persons barred from possessing a firearm."

Rehaif,

. As we recently explained in United

States v. Burghardt,

(1st Cir. 2019), and again in

United States v. Guzmán-Merced, No. 18-2146,

(1st

Cir. Dec. 22, 2020), failure to advise a defendant of that

requirement in accepting a plea constitutes clear error. As we

also explained, in the absence of any timely objections to the

plea colloquy, such an error will warrant vacating the conviction

and withdrawing the plea only if the defendant can establish a

"reasonable probability" that, but for the error, the defendant

would not have pled guilty to the offense. Burghardt,

; Guzmán-Merced,

, at *1–2.

Applying this precedent, we find that defendant Juan

Anibal Patrone fails to establish a reasonable probability that he

would not have pled guilty had he been advised as Rehaif requires.

For independent reasons, we also reject his objections to his

sentence. Our reasoning follows.

- 2 - I.

Patrone, a citizen of Italy and of the Dominican

Republic, lawfully entered the United States on a tourist visa and

settled in Lawrence, Massachusetts, in 2009 or 2010. At some

point, his visa expired, although the record does not specify when

this occurred. He subsequently obtained a work permit and was "in

the midst of applying to remain in the United States" at the time

of his arrest in the instant action.

In April 2016, the Drug Enforcement Administration

commenced an investigation into a drug trafficking organization in

Lawrence, Massachusetts. In the course of this investigation, the

government gathered overwhelming evidence that Patrone had been

involved in the widespread distribution and sale of fentanyl and

other drugs for several years. The government also seized a loaded

10 millimeter firearm from his bed at the time of his arrest.

The government charged Patrone with one count of

conspiracy to distribute and possess with intent to distribute

drugs, including cocaine, heroin, and more than 400 grams of

fentanyl, in violation of

, 841(a)(1), and

(b)(1)(A), and one count of possessing a firearm as an alien

unlawfully present in the United States, in violation of

(g)(5)(A). The indictment did not allege that Patrone knew

he was an alien who was unlawfully in the United States. See 18

- 3 - U.S.C. § 922(g)(5)(A). On September 19, 2018, he pled guilty to

both counts without benefit of a plea agreement.

Before accepting his guilty plea, the district court

informed Patrone that a conviction for violating

section 922(g)(5)(A) required the government to prove that Patrone

was unlawfully in the United States and that he possessed the

firearm and loaded magazine referenced in the firearm count.

Neither the district court nor the government informed Patrone

that the government would have to prove his knowledge of his

unlawful immigration status in order to sustain a conviction on

the firearm count. Patrone was subsequently sentenced to

144 months' imprisonment on the drug count and 120 months'

imprisonment on the firearm count, to be served concurrently.

A month after Patrone's sentencing, the United States

Supreme Court issued its opinion in Rehaif. As relevant here,

Rehaif's holding means that had Patrone gone to trial, the

government would have needed to prove beyond a reasonable doubt

that when he possessed the gun, he knew that he was unlawfully in

the United States. Rehaif,

. As is customary

in criminal law, we refer to the degree of such knowledge as

"scienter,"

, or (in this instance) "scienter-of-

status." See Burghardt,

.

Patrone asks that we vacate his conviction on the firearm

count because the government did not charge him with, and he did

- 4 - not plead guilty to, knowing the facts that made him a person

prohibited from possessing a firearm, as Rehaif now requires. In

addition, Patrone requests a remand for resentencing, claiming

that the district court mistakenly applied a two-level sentencing

enhancement for criminal livelihood on the drug charge under U.S.

Sentencing Guideline Section 2D1.1(b)(16)(E). We address each

challenge in turn.

II.

A.

Before accepting a guilty plea, a district court must

conduct a colloquy with the defendant to ensure that he

"understands the elements of the charges that the prosecution would

have to prove at trial." Burghardt,

(quoting

United States v. Gandia-Maysonet,

(1st Cir. 2000));

see also Fed. R. Crim. P. 11(b)(1)(G) ("[T]he court must inform

the defendant of, and determine that the defendant

understands, . . . the nature of each charge to which the

defendant is pleading."). A defendant who pleads guilty does not

waive all challenges to the adequacy of the plea colloquy.

Burghardt,

. Where, as here, a defendant waits

until an appeal to raise such a challenge, we review that challenge

only for plain error. See United States v. Dominguez Benitez,

(2004); Burghardt, 939 F.3d at 402—03; United States

v. Hernández-Maldonado,

(1st Cir. 2015). Under

- 5 - the plain error standard, a defendant must show "(1) an error,

(2) that is clear or obvious, (3) which affects his substantial

rights . . . , and which (4) seriously impugns the fairness,

integrity, or public reputation of the proceeding." United States

v. Correa-Osorio,

(1st Cir. 2015).

The parties agree that, after Rehaif, the district

court's (understandable) failure to ascertain whether Patrone knew

that he was an alien unlawfully in the United States constitutes

clear error. So our inquiry hinges on prongs three and four of

the plain error standard -- whether the district court's error

prejudiced Patrone (i.e., were his substantial rights affected)

and whether the error "seriously impugns the fairness, integrity,

or public reputation of the proceeding." Correa-Osorio,

. In a case such as this, an assessment of prejudice will

usually turn on whether the defendant can show a "reasonable

probability that, but for the purported error, he would not have

pled guilty." Burghardt,

(quoting United States

v. Diaz-Concepción,

, 38 (1st Cir. 2017)); see generally

Dominguez Benitez,

(2004).

Claiming to accede to plain error review, Patrone

actually argues for a variant of that review. That variant treats

the third prong as always satisfied when the discussion of an

offense during a plea colloquy omits an element of the offense,

regardless of whether the omission actually played any role in the

- 6 - defendant's decision to plead. The Fourth Circuit recently adopted

such a variant, calling Rehaif error a structural error that per

se adversely affects a defendant's substantive rights. United

States v. Gary,

, 203–05 (4th Cir. 2020) ("[T]his Court

has held that [structural errors] necessarily affect substantial

rights, satisfying [the plain error standard's] third prong."),

cert. granted, No. 20-444,

(Jan. 8, 2021).

We have already crossed this bridge, but in the opposite

direction, requiring that a defendant who asserts an unpreserved

claim of Rehaif error must demonstrate prejudice in the form of "a

reasonable probability that, but for this purported error, he would

not have pled guilty." Burghardt,

. Nor do we see

good reason to reverse our path. The Supreme Court itself gestures

in the direction we have taken. See Dominguez Benitez,

n.6 ("The omission of a single Rule 11 warning without more

is not colorably structural."). And at least two other circuits

have rejected Gary's adoption of Patrone's proffered version of

plain error review in cases such as this. United States v. Hicks,

, 401—02 (5th Cir. 2020) (rejecting the Fourth

Circuit's structural error holding in Gary); United States v.

Coleman,

, 1029—30 (8th Cir. 2020) (rejecting the

argument that a plea suffering from a Rehaif error is structural

error and applying a reasonable probability standard to the third

prong of plain error review). Six other circuits proceed more or

- 7 - less as we have, albeit without expressly considering an argument

that a Rehaif error is a structural error that automatically

satisfies the third prong of plain error review. See United States

v. Balde,

, 97—98 (2d Cir. 2019) (noting that in some

cases a Rehaif error may have no effect on a defendant's conviction

or decision to plead guilty); United States v. Sanabria-Robreno,

, 82—83 (3d Cir. 2020) (applying a reasonable

probability standard to the third prong of plain error review);

United States v. Hobbs,

, 857—58 (6th Cir. 2020)

(same); United States v. Williams,

(7th Cir.

2020) (rejecting a defendant's argument that the government should

bear the burden of persuasion in Rehaif cases and applying a

reasonable probability standard to the third prong of plain error

review); United States v. Fisher,

, 510 (10th Cir.

2019) (applying a reasonable probability standard to the third

prong of plain error review); United States v. McLellan,

, 1119—20 (11th Cir. 2020) (same).

We see no error in the structure of the proceedings in

the district court that necessarily impacted Patrone's substantial

rights; rather, we see an error in describing an offense, the

likely effect of which can often be reasonably discerned from the

facts of the case. Compare Burghardt,

(finding

that there was no reasonable probability that the defendant would

have pled otherwise), with Guzmán-Merced,

, at *2

- 8 - (finding that there was a reasonable probability the defendant

would not have entered a guilty plea had he known of the scienter-

of-status requirement). Under Patrone's proposed approach, a

defendant not informed that an offense requires proof of his

knowledge that he was not legally within the United States at the

time of his offense could withdraw his plea even if he was carrying

a copy of his affirmed order of removal at the time of the offense.

Finding that such an outcome fits poorly with Rule 52, we opt to

stay the course. Our decision in this case, as in Burghardt and

Guzman, therefore turns on whether there is a reasonable

probability that, but for the error, the outcome of the proceedings

would have been different.

Patrone contends that he would not have pled guilty to

the firearm offense had he known about the scienter-of-status

element, because there was little or no evidence that he knew that

his presence in the United States was unlawful. Certainly the

record as it stood at the plea colloquy was sparse on this

question: It merely established that his arrest occurred long

after his tourist visa had likely expired, and after he had applied

to remain in the United States. This is far from the "overwhelming

proof" of guilt that led us to find no prejudice in Burghardt.

. Perhaps Patrone believed his pending application

to remain in the United States rendered his presence lawful. Of

course, Patrone would have had to consider what additional evidence

- 9 - of scienter-of-status the government might have gathered and

presented, had it known it would be required to do so to secure a

conviction at trial. But at this juncture, the government does

not and cannot reasonably contend that it certainly would have

prevailed at trial had Patrone not pled guilty to the

section 922(g) charge.

Our inquiry, though, does not end with weighing the

likelihood of a conviction in light of the scienter-of-status

element that the government must prove. Other considerations may

also bear heavily on a defendant's decision to plead guilty. For

example, in this case, Patrone had no reasonable option but to

plead guilty to the related and more serious drug charge, for which

the government's proof was overwhelming. Indeed, Patrone makes no

claim that he would not have pled guilty to the drug count had he

thought he might beat the firearm possession count. Even on this

appeal, he does not seek to withdraw his plea on the drug count,

asking for resentencing only if we first find that his GSR must be

recalculated without the two-level leadership enhancement imposed

by the district court. Patrone must have known when he decided to

plead guilty that the drug count would determine the length of his

imprisonment: Both parties -- and Probation, in the PSR --

correctly anticipated that the firearms charge would generate only

a lower, concurrent sentence. And Patrone does not claim that he

anticipated that the firearm count might add any term to his

- 10 - conditions of imprisonment or release after his period of

incarceration. When he pled guilty, Patrone almost certainly knew

that he did not stand to gain anything from proceeding to trial on

the firearms charge, even if an acquittal on that charge was very

likely.

In fact, choosing to proceed to trial on the firearm

charge instead of pleading guilty may well have put Patrone in a

worse position at sentencing, as his ability to retain the three-

level offense reduction for acceptance of responsibility that he

received under the Guidelines would have been uncertain at best.

This circuit has yet to decide whether a defendant indicted on

multiple counts can receive an acceptance of responsibility

reduction when pleading to fewer than all of the counts. See

United States v. Deppe,

(1st Cir. 2007) (declining

to determine whether "acceptance of responsibility is an all[-

]or[-]nothing proposition and [whether] a rebuttable presumption

of non-availability . . . applies where a defendant pleads guilty

to some but not all of the crimes charged in a multi-count

indictment"). But most other circuits addressing this issue have

held either that an all-or-nothing approach should be taken --

that failure to plead to all counts irrevocably removes the

possibility for acceptance-of-responsibility credits -- or that

such credits are lost when the charges pled to and charges

contested unsuccessfully at trial are grouped for purposes of

- 11 - sentencing. See United States v. Hargrove,

(4th

Cir. 2007); United States v. Williams,

(3d

Cir. 2003); United States v. Thomas,

(11th

Cir. 2001); United States v. Chambers,

, 277–79 (6th

Cir. 1999); United States v. Ginn,

(9th Cir.

1996); United States v. Kleinebreil,

(5th Cir.

1992).

So the actual decision Patrone faced was this: Given

that he was pleading guilty to the drug count, should he also plead

guilty to the gun charge, adding nothing to his sentence and

locking in a lower Guidelines sentencing range (GSR),1 or should

he go to trial on the gun charge, thereby triggering a potentially

higher GSR on the drug count? In short, should he go to trial

with no hope of lowering his sentence and a real risk that he might

lengthen it? For virtually all defendants, the choice would be

easy and the answer clear -- plead to both counts in order to lock

in the reduction for acceptance of responsibility to the extent

possible, unless, perhaps, victory was certain.

Patrone counters by suggesting that by avoiding

conviction on the gun charge, he might have garnered a lower GSR

by availing himself of the safety valve provision of 18 U.S.C.

1 The three-level reduction for acceptance of responsibility reduced the GSR from a recommendation of life imprisonment to a recommended range of 324 to 405 months' imprisonment.

- 12 - § 3553(f), which was unavailable to him because of his possession

of a firearm.

(f)(2). But it was Patrone's

possession of the gun -- not the unlawful nature of the possession

-- that rendered the safety valve unavailable. See United States

v. McLean,

(1st Cir. 2005) (holding that "a

defendant who has constructively possessed a firearm in connection

with a drug trafficking offense is ineligible for the safety valve

provisions set forth at

(f)"); see also United

States v. Munyenyezi,

(1st Cir. 2015) ("[A] judge

can find facts for sentencing purposes by a preponderance of the

evidence[.]"). And Patrone has not disputed, either below or on

appeal, that the evidence of his constructive possession of the

firearm in connection with the drug offense was both overwhelming

and unaffected by any need to prove that Patrone knew his

immigration status.

* * *

For the foregoing reasons, Patrone fails to establish

that his substantial rights were affected by the district court's

failure to anticipate Rehaif.2

2 This conclusion obviates the need to consider the fourth prong of plain error review: whether the error "seriously impugns the fairness, integrity, or public reputation of the proceeding." Correa-Osorio,

.

- 13 - B.

We next turn to Patrone's challenge to the livelihood

enhancement that he received at sentencing. The effect of this

enhancement was to raise his GSR from 262—327 months' imprisonment

to 324–405 months'.

The government raises a fair question concerning whether

Patrone preserved any objection to the availability of the

livelihood enhancement. We sidestep that question by holding that,

even if preserved, the objection fails. Our reasoning follows.

U.S. Sentencing Guideline Section 2D1.1(b)(16)(E) adds

two levels to the Guidelines calculation if a defendant is subject

to section 3B1.1 and "committed the offense as part of a pattern

of criminal conduct engaged in as a livelihood." U.S.S.G.

§ 2D1.1(b)(16)(E). "'[P]attern of criminal conduct' and 'engaged

in as a livelihood' have the meaning given such terms in § 4B1.3."

U.S.S.G. § 2D1.1, cmt. n.20(c). Application Note One to

section 4B1.3 states that "[p]attern of criminal conduct" means

"planned criminal acts occurring over a substantial period of time.

Such acts may involve a single course of conduct or independent

offenses." U.S.S.G. § 4B1.3, cmt. n.1. Application Note Two to

§ 4B1.3 defines "[e]ngaged in as a livelihood" as

A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly minimum wage under federal law; and (B) the totality of

- 14 - circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment[,] or the defendant's legitimate employment was merely a front for the defendant's criminal conduct).

Id., cmt. n.2.

Patrone claims that he was not engaged in the business

of selling fentanyl for long enough to render it a "livelihood"

under section 4B1.3. But Patrone pled guilty to conducting his

charged conduct for over a year -- from the government's first

purchase, in a series of controlled buys beginning on May 20, 2016,

until his arrest on May 30, 2017, at which time the government

seized 387 grams from his courier. He points to no authority that

suggests that such a period of time is too short to qualify. And

while we have not addressed the issue, at least five other circuits

have found that periods of even less than twelve months can be

"substantial" for purposes of section 4B1.3. See, e.g., United

States v. Pristell,

(2d Cir. 2019) ("[S]ix months

is consistent with the plain meaning of the phrase 'substantial

period of time.' . . . Indeed, had the sentencing commission

intended to define 'substantial period of time' as no less than

twelve months, it could have chosen to do so, but did not.");

United States v. Cryer,

(5th Cir. 1991)

(describing the application note to § 4B1.3 as "quite clear,"

requiring "only that '[the pattern of] criminal conduct' be the

- 15 - defendant's 'primary occupation' during the relevant twelve-month

span, not that the defendant engage in crime for an entire year,"

and finding that four months of activity was sufficient); United

States v. Reed,

(6th Cir. 1991) ("The seven-month

period [of criminal activity] is long enough to constitute 'a

substantial period of time[]' [under U.S.S.G. § 4B1.3]."); United

States v. Hearrin,

(8th Cir. 1990) (imposing a

criminal livelihood enhancement for criminal conduct over "a

substantial time period of eight months"); United States v. Irvin,

(10th Cir. 1990) (interpreting "the phrase 'a

substantial period of time' in [the application notes accompanying

section 4B1.3] to require more than a short, quick, one-time

offense" and finding that five to seven months of activity was

sufficient).

Additionally, the language in the Guidelines and the

relevant application notes does not support Patrone's

interpretation. "Pattern of criminal conduct" includes the

requirement that the planned criminal acts occurred "over a

substantial period of time." U.S.S.G. § 4B1.3 cmt. n.1. "Engaged

in as a livelihood" includes the requirement that the income

derived in any twelve-month period exceeded 2,000 times the then-

existing hourly minimum wage under federal law and that the

criminal conduct was the defendant's primary occupation in that

twelve-month period. Id. cmt. n.2. The "engaged in as a

- 16 - livelihood" factor does not require that a defendant engaged in

criminal conduct for the entirety of twelve months -- one large

criminal activity, resulting in significant profit, could suffice,

if that was a defendant's primary occupation during that time

period. Consequently, there is no reason why we would apply a

twelve-month requirement to the "substantial period of time"

prong.

III.

Based on the foregoing, we affirm Patrone's conviction

and sentence.

- 17 -