Argued: November 15, 2018
from the United States District Court No. 3:15-cr-00034-RJC-1
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., District Judge.
B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
BARBARA MILANO KEENAN, CIRCUIT JUDGE.
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.
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
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.
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.
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['] imprisonment," but that "based on
[Lockhart's] three prior convictions for violent
felonies, [his] statutory penalties . . . are not less than
fifteen years['] imprisonment."
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.
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 ...