I have breaking news about two cases we have been watching very closely. Today, the Supreme Court decided Class v. United States, 16-424. At issue in Class was whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction. The Supreme Court held today that a guilty plea does not waive the ability to challenge the statute of conviction on constitutional grounds.

In addition, yesterday the Fifth Circuit decided United States v. Herrold, 14-1317. In a hotly contested en banc decision (8-7), the Fifth Circuit held that burglary under Texas Penal Code 30.02 is not a “violent felony” for ACCA purposes.

These decisions have huge potential.




certiorari to the United States Court of Appeals for the District of Columbia Circuit

No. 16–424. Argued October 4, 2017—Decided February 21, 2018

A federal grand jury indicted petitioner, Rodney Class, for possessing firearms in his locked jeep, which was parked on the grounds of the United States Capitol in Washington, D. C. See 40 U. S. C. 5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a firearm”). Appearing pro se, Class asked the District Court to dismiss the indictment. He alleged that the statute, 5104(e), violates the Second Amendment and the Due Process Clause. After the District Court dismissed both claims, Class pleaded guilty to “Possession of a Firearm on U. S. Capitol Grounds, in violation of 40 U. S. C. 5104(e).” App. 30. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he agreed to waive. The agreement said nothing about the right to challenge on direct appeal the constitutionality of the statute of conviction. After conducting a hearing pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the District Court accepted Class’ guilty plea and sentenced him. Soon thereafter, Class sought to raise his constitutional claims on direct appeal. The Court of Appeals held that Class could not do so because, by pleading guilty, he had waived his constitutional claims.

Held: A guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. Pp. 3–11.

(a) This holding flows directly from this Court’s prior decisions. Fifty years ago, in Haynes v. United States, the Court addressed a similar claim challenging the constitutionality of a criminal statute. Justice Harlan’s opinion for the Court stated that the defendant’s “plea of guilty did not, of course, waive his previous [constitutional] claim.” 390 U. S. 85 , n. 2. That clear statement reflects an understanding of the nature of guilty pleas that stretches, in broad outline, nearly 150 years. Subsequent decisions have elaborated upon it. In Blackledge v. Perry, 417 U. S. 21, the Court recognized that a guilty plea bars some “ ‘antecedent constitutional violations,’ ” related to events (such as grand jury proceedings) that “ ‘occu[r] prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U. S. 258 –267). However, where the claim implicates “the very power of the State” to prosecute the defendant, a guilty plea cannot by itself bar it. 417 U. S., at 30. Likewise, in Menna v. New York, 423 U. S. 61, the Court held that because the defendant’s claim was that “the State may not convict [him] no matter how validly his factual guilt is established,” his “guilty plea, therefore, [did] not bar the claim.” Id., at 63, n. 2. In more recent years, the Court has reaffirmed the Menna-Blackledge doctrine’s basic teaching that “ ‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’ ” United States v. Broce, 488 U. S. 563 (quoting Menna, supra, at 63, n. 2). Pp. 3–7.

(b) In this case, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. As this Court understands them, the claims at issue here do not contradict the terms of the indictment or the written plea agreement and they can be resolved “on the basis of the existing record.” Broce, supra, at 575. Class challenges the Government’s power to criminalize his (admitted) conduct and thereby calls into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Ibid. (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. Pp. 7–8.

(c) Federal Rule of Criminal Procedure 11(a)(2), which governs “conditional” guilty pleas, cannot resolve this case. By its own terms, the Rule does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitutional claim following a guilty plea. And the Rule’s drafters acknowledged that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty” and specifically stated that Rule 11(a)(2) “has no application” to the “kinds of constitutional objections” that may be raised under the “Menna-Blackledge doctrine.” Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 912. Because the applicability of the Menna-Blackledge doctrine is at issue here, Rule 11(a)(2) cannot resolve this case. Pp. 8–10.

Reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Kennedy and Thomas, JJ., joined.


In this case, the Fifth Circuit was tasked with determining whether burglary under Texas Penal Code 30.02(a)(1) and (3) are indivisible for the purpose of categorical analysis and if so, whether the two provisions are broader than the generic definition of burglary under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1).

Herrold was found to be an ACCA eligible based on three prior convictions: (1) unlawful possession of LSD with intent to distribute; (2) burglary of a building; (3) burglary of a habitation. Herrold argued before the district court that none of the aforementioned priors qualified as ACCA-predicate offenses. The district court disagreed, but noted that Herrold had made “forceful arguments” that the enhancement should not apply and requested guidance from the Fifth Circuit on appeal. Herrold was sentenced to 211 months imprisonment with the ACCA enhancement.

On direct appeal, the Fifth Circuit affirmed Herrold’s ACCA sentence based on prior circuit precedent. The Supreme Court then vacated the Fifth Circuit’s judgment and remanded for consideration in light of Mathis v. United States. On remand, Herrold argued that Mathis foreclosed the possibility that his two Texas burglary convictions can serve as ACCA predicates. The Fifth Circuit again affirmed, this time on the basis of an earlier post-Mathis decision, United States v. Uribe. Herrold petitioned for rehearing en banc, which the Fifth Circuit subsequently granted.

In a highly contested 8-7 decision, the Fifth Circuit held that Texas Penal Code 30.02(a)(1) and (a)(3) are indivisible. “While the Texas burglary statute itself lacks any trait that the Supreme Court deemed relevant to the divisibility inquiry, Texas case law settles the question. Indeed, Texas courts have repeatedly held that a jury need not unanimously agree on whether Texas Penal Code 30.02(a)(1) or (a)(3) applies in order to sustain a conviction for burglary.”

The Fifth Circuit went on to note that the Uribe panel relied on different Texas state court decisions to reach the contrary conclusion. Ultimately, the court concluded that “the lower courts have fleshed out Day and Devaughn and told us what they mean in this precise context: jury unanimity, the issue that Mathis deems dispositive, is not required between Texas Penal Code 30.02(a)(1) and (a)(3).”

Having decided that the Texas burglary statute is indivisible, the court was next tasked with determining whether the state’s statute is broader than the generic ACCA definition. Because the statutes are indivisible, the court employed the categorical approach to examine the viability of Herrold’s two burglary convictions under the ACCA. Ultimately, the majority found the Texas statutes to be overly broad, thus holding that Texas burglary cannot be used as a “violent felony” predicate conviction for ACCA purposes.

Note: Class and Herrold are very important decisions that have great potential. I think it is very likely that the government will appeal the decision in Herrold, and we will have to wait and see if the Supreme Court will accept the case. In the interim, I will continue to keep you posted on any new developments.