Warning From Alito Hangs Over Felony-Gun Possession Appeal

Two years after the conservative justice said that the court had opened the flood gates, a five-time felon caught with a firearm made an unlikely bid Tuesday to benefit from the precedent.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

(CN) — The Supreme Court appears ready to uphold a 10-year sentence for a Florida man who says he didn’t know his status as a five-time felon made it illegal for him to get a gun.

Justice Sonia Sotomayor pointed out at oral arguments this morning that the challenger, Gregory Greer, had been released from prison just six months before he was arrested on the felon-in-possession charge.

“It’s impossible to believe that there’s any reasonable doubt that he could have put this knowledge in contention,” Sotomayor said.

Greer was convicted of the gun charge in 2018 — only a year before the Supreme Court ruled 7-2 in Rehaif v. United States that such convictions must show both that the individual knows he has a gun and is aware that his gun possession is illegal.

The court had found no such showing against the defendant in Rehaif, an Emirati student who began frequenting a gun range after flunking out of school, in violation of the terms of his visa.

Justice Samuel Alito warned in a dissent at the time that “tens of thousands of prisoners,” many of whom pleaded guilty, would now have cause to appeal their convictions.

Justice Stephen Breyer echoed these concerns Tuesday.

“I fear that we start getting into the rule-making business in this area – what you can look at and what you can’t. Do you see what I’m afraid of? A mess, in other words,” he said.

Though the 11th Circuit applied a “plain error” test in finding that errors in Greer’s indictment and trial did not deprive him of his substantial rights, Greer argues that the Atlanta-based federal appeals court unfairly took into account his five prior felony convictions and a pre-sentencing report that had not been introduced at trial.

His public defender, Mara Allison Guagliardo, argued at Tuesday’s hearing that the “pertinent record” with respect to an insufficient-evidence claim like Greer’s is limited to the evidence introduced at trial.

“We’re simply asking the court to focus the appellate courts and limit their review to the evidence actually introduced against the defendant at trial,” Guagliardo explained.

An attorney for the government urged the court Tuesday not to “re-work plain error doctrine” in an “essentially arbitrary and fundamentally unfair way.”

Justice Stephen Breyer questioned Tuesday what the limitations should be on which documents are considered part of the trial record.

“There could’ve been something that happened in the middle of the trial to which it’s highly relevant what happened before the trial. There could be something on the list of witnesses, there could be a limitation on what’s going to be asked, the limitation having been worked out with counsel or the judge before the jury was impaneled,” Breyer explained. “The possibilities are endless. So where does this idea come from that you can only look at certain things?

“I’m totally at sea as to why or how to draw some line,” he added.

Assistant U.S. Solicitor General General Benjamin Snyder said Greer’s conviction must be affirmed. The court has “never constrained plain error review” in the way Greer asks, “and it should not start here,” he argued.

“Plain-error doctrine is intensely practical, asking about substantive outcomes and fundamental fairness,” Snyder said. “The court has always analyzed those questions in light of all the evidence available to it. … Petitioner has identified no principled reason why a court … must ignore the undisputed evidence in the record about his own convictions and prison time.”

Snyder argued that siding with Greer would “require nearly automatic reversal” for other defendants who “do not and cannot plausibly claim that they would’ve disputed their knowledge of status at an error-free trial but seek windfall relief based on an artificially constrained view of the evidence.”

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