Greer v. United States

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 2
Pages 503–521
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 14, 2021
REBECCA A. WOMELDORF
reporter of decisions
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503
Syllabus
GREER v. UNITED STATES
certiorari
to the united states court of appeals for
the eleventh circuit
No. 19–8709. Argued April 20, 2021—Decided June 14, 2021*
In Rehaif v. United States, 588 U. S. –––, the Court clarifed the mens rea
requirement for frearms-possession offenses under 18 U. S. C. § 922(g).
After Rehaif, the Government in a felon-in-possession case must prove
not only that the defendant knew he possessed a frearm, but also that
he knew he was a felon when he possessed the frearm. See 588 U. S.,
at –––. Prior to Rehaif, Gregory Greer and Michael Gary were sepa-
rately convicted of being felons in possession of a frearm in violation of
§ 922(g)(1). Greer's conviction resulted from a jury trial during which
Greer did not request—and the District Court did not give—a jury in-
struction requiring the jury to fnd that Greer knew he was a felon when
he possessed the frearm. Gary pled guilty to two counts of being a
felon in possession of a frearm. During Gary's plea colloquy, the Dis-
trict Court did not advise Gary that, if he went to trial, a jury would
have to fnd that he knew he was a felon when he possessed the frearms.
On appeal, both Greer and Gary raised new mens rea arguments based
on Rehaif. Greer requested a new trial based on the District Court's
failure to instruct the jury that Greer had to know he was a felon to be
found guilty. Applying plain-error review, the Eleventh Circuit re-
jected that argument. Gary argued that his guilty plea must be va-
cated because the District Court failed to advise him that, if he went to
trial, a jury would have to fnd that he knew he was a felon. The
Fourth Circuit agreed with Gary, holding that the failure to advise him
of that mens rea element was a structural error that required automatic
reversal even though Gary had not raised the argument in the District
Court.
Held: In felon-in-possession cases, a Rehaif error is not a basis for plain-
error relief unless the defendant frst makes a suffcient argument or
representation on appeal that he would have presented evidence at trial
that he did not in fact know he was a felon.
Under Rule 51(b) of the Federal Rules of Criminal Procedure, a de-
fendant who has “an opportunity to object” to an alleged error and fails
to do so forfeits the claim of error. If, as with Greer and Gary here, a
*Together with No. 20–444, United States v. Gary, on certiorari to the
United States Court of Appeals for the Fourth Circuit.

504 GREER
v. UNITED STATES
Syllabus
defendant later raises the forfeited claim on appeal, Rule 52(b)'s plain-
error
standard applies. See Puckett v. United States, 556 U. S. 129, 135.
To establish eligibility for plain-error relief, a defendant must show (i)
that there was an error, (ii) that the error was plain, and (iii) that the
error affects “substantial rights,” i. e., that there is “a reasonable proba-
bility that, but for the error, the outcome of the proceeding would have
been different.” Rosales-Mireles v. United States, 585 U. S. –––, –––.
If the defendant satisfes those three prongs, an appellate court may
grant relief only if it also concludes that the error had a serious effect
on “the fairness, integrity or public reputation of judicial proceedings.”
Ibid. (internal quotation marks omitted).
Here, it is undisputed that Rehaif errors occurred during Greer's and
Gary's district court proceedings and that the errors were plain. To
satisfy the “substantial rights” prong, Greer must show that, if the Dis-
trict Court had correctly instructed the jury on the mens rea element
of a felon-in-possession offense, there is a “reasonable probability” that
he would have been acquitted. Gary must show that, if the District
Court had correctly advised him of the mens rea element of the offense,
there is a “reasonable probability” that he would not have pled guilty.
Greer and Gary have not carried that burden. Both had been con-
victed of multiple felonies prior to their respective felon-in-possession
offenses. Those prior convictions are substantial evidence that they
knew they were felons. And neither defendant argued or made a repre-
sentation on appeal that he would have presented evidence at trial that
he did not in fact know he was a felon when he possessed a frearm.
Greer's and Gary's counterarguments are unpersuasive. Greer pri-
marily argues that an appellate court conducting plain-error review of
a Rehaif instructional error may examine only the trial record, and may
not consider, for example, information about a defendant's prior convic-
tions contained in a pre-sentence report. But the undisputed fact that
Greer was a felon is in the trial record. In any event, that argument
contravenes both logic and precedent. See, e. g., United States v. Vonn,
535 U. S. 55, 58–59.
Gary argues that he is exempt from ordinary plain-error review under
Rule 52(b) for one of two alternative reasons. Gary frst argues that a
narrow “futility” exception to Rule 52(b) applies because it would have
been futile to object to the omission of the mens rea element from his
plea colloquy given the pre-Rehaif state of the law. For that reason,
Gary argues that his claim should be governed by the more lenient
harmless-error standard of Rule 52(a) rather than the more exacting
plain-error standard of Rule 52(b). Gary's proposed futility exception
lacks any support in the text of the Federal Rules of Criminal Procedure
or in this Court's precedents, which distinguish between harmless-error
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and plain-error review based on preservation. See, e. g., Johnson v.
U
nited States, 520 U. S. 461. Gary also asserts that Rehaif errors are
“structural” and require automatic vacatur in every case without regard
to whether a defendant can otherwise satisfy the plain-error test. The
Court disagrees. Rehaif errors ft comfortably within the “general rule”
that “a constitutional error does not automatically require reversal of a
conviction.” Arizona v. Fulminante, 499 U. S. 279, 306. Pp. 507–515.
No. 19–8709, 798 Fed. Appx. 483, affrmed; No. 20–444, 954 F. 3d 194,
reversed.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Breyer, Alito, Kagan, Gorsuch, and Barrett, JJ.,
joined. Sotomayor, J., fled an opinion concurring in part and dissenting
in part, post, p. 515.
M. Allison Guagliardo argued the cause for petitioner.
With her on the brief were James T. Skuthan, Meghan Ann
Collins, Rosemary Cakmis, Conrad Kahn, and Jeffrey T.
Green.
Benjamin W. Snyder argued the cause for the United
States. With him on the brief were Acting Solicitor Gen-
eral Prelogar, Acting Assistant Attorney General McQuaid,
Deputy Solicitor General Feigin, Joshua K. Handell, and
David M. Lieberman.*
Justice Kavanaugh delivered the opinion of the Court.
Federal law prohibits the possession of frearms by certain
categories of individuals, including by those who have been
convicted of a crime punishable by more than one year in
prison. See 18 U. S. C. §§ 922(g), 924(a)(2). In Rehaif v.
United States, 588 U. S. ––– (2019), this Court clarifed
the mens rea requirement for frearms-possession offenses,
i ncludi ng the felon-in-possessi on offense. In felon-i n-
possession cases after Rehaif, the Government must prove
not only that the defendant knew he possessed a frearm, but
*Clifford W. Berlow, Grace C. Signorelli-Cassady, and Jonathan D.
Hacker fled a brief for the National Association of Criminal Defense Law-
yers as amicus curiae urging reversal.

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also that he knew he was a felon when he possessed the
frear
m. See id., at –––.
As many courts have recognized and as common sense sug-
gests, individuals who are convicted felons ordinarily know
that they are convicted felons. That simple point turns out
to be important in the two cases before us.
Before this Court decided Rehaif, Gregory Greer and Mi-
chael Gary were separately convicted of felon-in-possession
offenses.
Greer's case arose when police offcers began talking to
him in a hotel hallway. The offcers suspected that Greer
was involved in a prostitution ring. Greer ran from the of-
fcers and led them on a chase down a stairwell. The offcers
found a gun discarded in the stairwell and caught Greer
shortly thereafter. Greer was wearing an empty holster
clipped inside his waistband. At the time of the incident,
Greer was a convicted felon. The Federal Government
charged him in federal court with being a felon in possession
of a frearm, and the case went to trial. Greer's defense was
that he had never possessed the gun that the police found in
the stairwell. Greer did not request—and the District
Court did not give—a jury instruction requiring the jury to
fnd that Greer knew he was a felon when he possessed the
frearm. The jury found Greer guilty.
Gary's case arose out of two separate encounters with po-
lice. Both times, offcers found Gary with a frearm. At
the time of the incidents, Gary was a convicted felon. The
Federal Government charged him in federal court with two
counts of being a felon in possession of a frearm. Gary pled
guilty. During the plea colloquy, the District Court did not
advise Gary that, if he went to trial, a jury would have to fnd
that he knew he was a felon when he possessed the frearms.
After Greer's trial and Gary's plea, this Court decided Re-
haif. Based on Rehaif, both Greer and Gary raised new
mens rea arguments on appeal. Greer argued that he was
entitled to a new trial because the District Court failed to

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Opinion of the Court
instruct the jury that he had to know he was a felon. Gary
si
milarly argued that his guilty plea must be vacated be-
cause the District Court failed to advise him during the
plea colloquy that, if he went to trial, a jury would have to
fnd that he knew he was a felon. The Eleventh Circuit re-
jected Greer's argument, 798 Fed. Appx. 483 (2020), while
the Fourth Circuit agreed with Gary's argument, 954 F. 3d
194 (2020). We granted certiorari in both cases. See 592
U. S. ––– (2021).
***
The question for this Court is whether Greer and Gary
are entitled to plain-error relief for their unpreserved Rehaif
claims. We conclude that they are not. We therefore af-
frm the judgment of the Eleventh Circuit and reverse the
judgment of the Fourth Circuit.
Under Rule 51(b) of the Federal Rules of Criminal Proce-
dure, a defendant can preserve a claim of error “by informing
the court” of the claimed error when the relevant “court rul-
ing or order is made or sought.” If the defendant has “an
opportunity to object” and fails to do so, he forfeits the claim
of error. Ibid. If the defendant later raises the forfeited
claim on appeal, Rule 52(b)'s plain-error standard applies.
See Puckett v. United States, 556 U. S. 129, 135 (2009).
Here, both defendants forfeited their mens rea claims by
failing to properly preserve them under Rule 51(b). We
therefore conduct plain-error review under Rule 52(b).
Rule 52(b) provides: “A plain error that affects substantial
rights may be considered even though it was not brought to
the court's attention.” “Rule 52(b) is permissive, not man-
datory.” United States v. Olano, 507 U. S. 725, 735 (1993).
To establish eligibility for plain-error relief, a defendant
must satisfy three threshold requirements. See Rosales-
Mireles v. United States, 585 U. S. –––, ––– – ––– (2018).
First, there must be an error. Second, the error must be
plain. Third, the error must affect “substantial rights,”
which generally means that there must be “a reasonable prob-
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508 GREER
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Opinion of the Court
ability that, but for the error, the outcome of the proceeding
wou
ld have been different.” Id., at ––– (internal quotation
marks omitted). If those three requirements are met, an
appellate court may grant relief if it concludes that the error
had a serious effect on “the fairness, integrity or public repu-
tation of judicial proceedings.” Ibid. (internal quotation
marks omitted); see also Olano, 507 U. S., at 735–737.
The defendant has “the burden of establishing entitlement
to relief for plain error.” United States v. Dominguez Beni-
tez, 542 U. S. 74, 82 (2004). That means that the defendant
has the burden of establishing each of the four requirements
for plain-error relief. Satisfying all four prongs of the plain-
error test “is diffcult.” Puckett, 556 U. S., at 135.
In the two cases before us, all agree that Rehaif errors
occurred during both defendants' district court proceedings
and that the errors were plain, thus satisfying the frst two
prongs of the plain-error test. We address the third prong:
whether the Rehaif errors affected the defendants' “substan-
tial rights.” Greer has the burden of showing that, if the
District Court had correctly instructed the jury on the mens
rea element of a felon-in-possession offense, there is a “rea-
sonable probability” that he would have been acquitted.
Dominguez Benitez, 542 U. S., at 83. And Gary has the bur-
den of showing that, if the District Court had correctly ad-
vised him of the mens rea element of the offense, there is a
“reasonable probability” that he would not have pled guilty.
Ibid.
In a felon-in-possession case where the defendant was in
fact a felon when he possessed frearms, the defendant faces
an uphill climb in trying to satisfy the substantial-rights
prong of the plain-error test based on an argument that he
did not know he was a felon. The reason is simple: If a per-
son is a felon, he ordinarily knows he is a felon. “Felony
status is simply not the kind of thing that one forgets.” 963
F. 3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial
of reh'g en banc). That simple truth is not lost upon juries.

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Opinion of the Court
Thus, absent a reason to conclude otherwise, a jury will usu-
a
lly fnd that a defendant knew he was a felon based on the
fact that he was a felon. A defendant considering whether
to plead guilty would recognize as much and would likely
factor that reality into the decision to plead guilty. In short,
if a defendant was in fact a felon, it will be diffcult for him
to carry the burden on plain-error review of showing a “rea-
sonable probability” that, but for the Rehaif error, the out-
come of the district court proceedings would have been
different.
Of course, there may be cases in which a defendant who is
a felon can make an adequate showing on appeal that he
would have presented evidence in the district court that
he did not in fact know he was a felon when he possessed
frearms. See Fed. Rule App. Proc. 10(e). Indeed, at oral
argument, the Government conceded that there are circum-
stances in which a defendant might make such a showing.
See Tr. of Oral Arg. in No. 19–8709, pp. 42–43, 50–51, 61–62;
Tr. of Oral Arg. in No. 20–444, pp. 16–17. But if a defendant
does not make such an argument or representation on ap-
peal, the appellate court will have no reason to believe that
the defendant would have presented such evidence to a jury,
and thus no basis to conclude that there is a “reasonable
probability” that the outcome would have been different ab-
sent the Rehaif error.
Here, Greer and Gary have not carried the burden of show-
ing that the Rehaif errors in their respective cases affected
their substantial rights. Before their respective felon-in-
possession offenses, both Greer and Gary had been convicted
of multiple felonies. Those prior convictions are substantial
evidence that they knew they were felons. Neither defend-
ant has ever disputed the fact of their prior convictions. At
trial, Greer stipulated to the fact that he was a felon. And
Gary admitted that he was a felon when he pled guilty. Im-
portantly, on appeal, neither Greer nor Gary has argued or
made a representation that they would have presented evi-

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510 GREER
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Opinion of the Court
dence at trial that they did not in fact know they were felons
when
they possessed frearms. Therefore, Greer cannot
show that, but for the Rehaif error in the jury instructions,
there is a reasonable probability that a jury would have ac-
quitted him. And Gary likewise cannot show that, but for
the Rehaif error during the plea colloquy, there is a reason-
able probability that he would have gone to trial rather than
plead guilty.
In sum, as the Fifth Circuit aptly stated, demonstrating
prejudice under Rehaif “will be diffcult for most convicted
felons for one simple reason: Convicted felons typically know
they're convicted felons.” United States v. Lavalais, 960
F. 3d 180, 184 (2020). So it is here.
In response, Greer and Gary advance several arguments,
none of which is persuasive.
Greer's primary argument is that an appellate court con-
ducting plain-error review of a Rehaif instructional error
may examine only the trial record, not the entire record.
Thus, as relevant here, Greer contends that an appellate
court may not consider information about a defendant's prior
convictions contained in a pre-sentence report. But the un-
disputed fact that Greer was a felon is in the trial record.
Indeed, Greer stipulated to that fact. See Old Chief v.
United States, 519 U. S. 172 (1997). And importantly, Greer
has never argued or made any representation on appeal—
either to the Eleventh Circuit or to this Court—that he did
not know he was a felon when he possessed a frearm. We
therefore need not look to the pre-sentence report to resolve
the plain-error question in this case.
In any event, Greer's argument that plain-error review
must focus exclusively on the trial record contravenes
both logic and precedent. Recall that the question at the
substantial-rights prong of plain-error review is whether
there is a reasonable probability that, if the jury had been
given the proper mens rea instruction, Greer would have

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been acquitted. Greer asks us to assume a scenario where
the
proper instruction was given, but where the Government
did not introduce additional evidence to prove that Greer
knew he was a felon. That is not a realistic scenario.
Greer's argument is also inconsistent with precedent.
This Court has repeatedly stated that an appellate court con-
ducting plain-error review may consider the entire record—
not just the record from the particular proceeding where the
error occurred. See, e. g., United States v. Vonn, 535 U. S.
55, 58–59, 74–75 (2002); see also Puckett, 556 U. S., at 142–
143; Dominguez Benitez, 542 U. S., at 84–85; United States
v. Cotton, 535 U. S. 625, 632–633, and n. 3 (2002). Therefore,
when an appellate court conducts plain-error review of a
Rehaif instructional error, the court can examine relevant
and reliable information from the entire record—including
information contained in a pre-sentence report.
To be sure, if a defendant believes that particular informa-
tion in the record is irrelevant or unreliable, she may urge the
appellate court to discount that information. But concerns
about relevance and reliability should be addressed through
case-by-case adjudication rather than through a categorical
bar against considering evidence outside the trial record.
For his part, Gary argues that he is exempt from ordinary
plain-error review for one of two alternative reasons.
First, Gary contends that his unpreserved Rehaif claim is
not subject to ordinary plain-error review because his claim
falls within a narrow “futility” exception to Rule 52(b).
Gary notes that, at the time of his guilty plea, every Court
of Appeals to consider the issue had held that knowledge of
one's felon status was not an element of a felon-in-possession
offense. Given that uniform wall of precedent, he says that
it would have been futile for him to contemporaneously
object to the omission of that element from his plea collo-
quy. For that reason, he argues that his claim should be
governed by the more lenient harmless-error standard of
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512 GREER
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Opinion of the Court
Rule 52(a) rather than the more exacting plain-error stand-
ard
of Rule 52(b).
The problem for Gary is that his proposed futility excep-
tion lacks any support in the text of the Federal Rules of
Criminal Procedure or in this Court's precedents.
Start with Rule 52, which addresses the standards for
harmless-error and plain-error review in federal criminal ap-
peals. Rule 52 is divided into two subsections. Rule 52(a)
deals with harmless error. Rule 52(b) addresses plain error.
Rule 52(b) specifcally addresses unpreserved errors, while
Rule 52(a) makes no mention of such errors. Thus, Rule
52(a) and Rule 52(b) together indicate that unpreserved
errors must be analyzed for plain error under Rule 52(b).
Consider also Rule 51, which provides that a party's failure
to make a contemporaneous objection does not prejudice
the party if he did “not have an opportunity” to raise the
objection. Rule 51's focus on a party's opportunity to
object—rather than a party's likelihood of prevailing on the
objection—also undercuts Gary's proposed futility exception.
Consistent with the text of Rules 51 and 52, this Court's
precedents have long drawn a bright line between harmless-
error and plain-error review based on preservation. See
Olano, 507 U. S., at 731. In Johnson v. United States, 520
U. S. 461 (1997), for example, the Court applied plain-error
review to a claim that was the subject of an 11 to 1 split in
authority among the Circuits, with only one Court of Appeals
accepting the defendant's position. The “near-uniform prec-
edent both from this Court and from the Courts of Appeals,”
id., at 467–468, did not affect the application of Rule 52(b).
All that mattered was that the defendant had failed to raise
a contemporaneous objection. See id., at 465–466.
In sum, both the Federal Rules and this Court's prece-
dents confrm that unpreserved Rehaif claims are subject to
plain-error review under Rule 52(b).
Second, Gary asserts that Rehaif errors (at least when
they occur during a plea proceeding) are “structural” and
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Opinion of the Court
require automatic vacatur in every case without regard
to
whether a defendant can otherwise satisfy the plain-
error test.
As this Court has repeatedly made clear, however, the
“general rule” is that “a constitutional error does not
automatically require reversal of a conviction.” Arizona v.
Fulminante, 499 U. S. 279, 306 (1991). Only in a “very lim-
ited class of cases” has the Court concluded that an error is
structural, and “thus subject to automatic reversal” on ap-
peal. Neder v. United States, 527 U. S. 1, 8 (1999) (internal
quotation marks omitted).
Structural errors are errors that affect the “entire conduct
of the [proceeding] from beginning to end.” Fulminante,
499 U. S., at 309. The “highly exceptional” category of
structural errors includes, for example, the “denial of counsel
of choice, denial of self-representation, denial of a public trial,
and failure to convey to a jury that guilt must be proved
beyond a reasonable doubt.” United States v. Davila, 569
U. S. 597, 611 (2013).
By contrast, discrete defects in the criminal process—such
as the omission of a single element from jury instructions
or the omission of a required warning from a Rule 11 plea
colloquy—are not structural because they do not “necessar-
ily render a criminal trial fundamentally unfair or an unreli-
able vehicle for determining guilt or innocence.” Neder, 527
U. S., at 9 (omission of element from jury instructions); see
also Dominguez Benitez, 542 U. S., at 81, n. 6 (omission of
Rule 11 warning from plea colloquy).
As the Court's precedents make clear, the omission of a
single element from jury instructions is not structural. See,
e. g., Neder, 527 U. S., at 7–10. A Rehaif error in jury instruc-
tions is therefore not structural. And it follows that a Re-
haif error in a plea colloquy is likewise not structural. The
omission of that mens rea element from a plea colloquy—
like the omission of that mens rea element from jury
instructions—does not affect the entire framework within
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514 GREER
v. UNITED STATES
Opinion of the Court
which the proceeding occurs. See 527 U. S., at 8. And un-
l
ike the errors that this Court has found structural, the omis-
sion of a single element from a plea colloquy does not “de-
prive defendants of basic protections without which a
criminal [proceeding] cannot reliably serve its function as a
vehicle for determination of guilt or innocence.” Id., at 8–9
(internal quotation marks omitted). In short, Rehaif errors
ft comfortably within the “general rule” that “a constitu-
tional error does not automatically require reversal of a con-
viction.” Fulminante, 499 U. S., at 306. Rather, a defend-
ant such as Gary must satisfy the ordinary plain-error test.
***
The bottom line of these two cases is straightforward. In
felon-in-possession cases, a Rehaif error is not a basis for
plain-error relief unless the defendant frst makes a suffcient
argument or representation on appeal that he would have
presented evidence at trial that he did not in fact know he
was a felon. When a defendant advances such an argument
or representation on appeal, the court must determine
whether the defendant has carried the burden of showing a
“reasonable probability” that the outcome of the district
court proceeding would have been different. Because Greer
and Gary did not make any such argument or representation
on appeal in these cases, they have not satisfed the plain-
error test.*
*The partial dissent contends that we should vacate and remand for the
Fourth Circuit to consider whether Gary can “make a case-specifc show-
ing ” that the outcome of his plea proceedings would have been different
absent the Rehaif error. Post, at 520. But Gary already had that oppor-
tunity before the Fourth Circuit and did not make such a showing. Before
the Fourth Circuit, Gary did not claim that he did not know he was a felon
or suggest that he would not have pled guilty absent the Rehaif error.
He argued only that a Rehaif error during a plea colloquy is a structural
error that requires automatic reversal even if there is “overwhelming evi-
dence that the defendant would have pleaded guilty regardless.” Supp.
Brief for Appellant in No. 18–4578 (CA4), p. 10 (internal quotation marks
omitted).
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515
Opinion of Sotomayor, J.
We affrm the judgment of the U. S. Court of Appeals for
the
Eleventh Circuit, and we reverse the judgment of the
U. S. Court of Appeals for the Fourth Circuit.
It is so ordered.
Justice Sotomayor, concurring as to No. 19–8709, and
concurring in part, dissenting in part, and dissenting from
the judgment as to No. 20–444.
For years, all 12 Courts of Appeals with criminal jurisdic-
tion agreed that a defendant need not know he is a felon to
be guilty of being a felon in possession of a frearm under 18
U. S. C. §§ 922(g)(1) and 924(a)(2). This Court came to
the opposite conclusion in Rehaif v. United States, 588
U. S. ––– (2019). Gregory Greer's and Michael Gary's felon-
in-possession convictions were not yet fnal when Rehaif was
decided. The District Court did not inform Gary of the
knowledge-of-status element at his plea colloquy, and Greer's
District Court did not instruct the jury that it had to make
a knowledge-of-status fnding to convict. Neither Greer nor
Gary objected to those omissions. The question now is
whether they have shown that their convictions should be
vacated under plain-error review.
I agree with the Court that Greer is not entitled to such
relief because he cannot show that the trial error affected
his substantial rights. I write separately to highlight
two limits on today's decision. First, the Court's analysis
in Greer's case does not extend to the distinct context of
harmless-error review, which applies when defendants con-
temporaneously object at trial. Second, the knowledge-of-
status element is an element just like any other. The
Government must prove it beyond a reasonable doubt, and
defendants seeking relief based on Rehaif errors bear only
the usual burden on plain-error review. With that under-
standing, I join the portions of the Court's opinion address-
ing Greer's case and affrming the judgment of the Court of
Appeals for the Eleventh Circuit.
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516 GREER
v. UNITED STATES
Opinion of Sotomayor, J.
As to Gary, I agree with the Court that the Court of Ap-
pea
ls for the Fourth Circuit erred in holding that the District
Court's failure to inform Gary of the knowledge-of-status
element automatically entitled him to relief on plain-error
review. Unlike this Court, I would not decide in the frst
instance whether Gary can make a case-specifc showing that
the error affected his substantial rights. I would instead
vacate the judgment below and remand for the Fourth Cir-
cuit to address that question. I therefore respectfully dis-
sent from the judgment as to Gary.
I
A
Greer was found guilty by a jury that was not instructed
on the knowledge-of-felon-status element required by Re-
haif. To obtain relief on plain-error review, Greer must
show, among other things, that the error affected his sub-
stantial rights. Here, that means Greer must show a rea-
sonable probability that a correctly instructed jury would
have reasonably doubted that he knew he was a felon when
he possessed the gun. Greer has not carried that burden.
The evidence at trial showed that, while Greer was talking
to police offcers, he “touched the right side of his waistband
repeatedly” and then sprinted away when the offcers said
they were going to pat him down for weapons. 798 Fed.
Appx. 483, 485 (CA11 2020) (per curiam). Two offcers
followed him into a stairwell and “heard the dull sound of a
heavy object fall to the ground.” Ibid. A third found a
pistol lying on the landing. Ibid.
Greer's presentence report shows that, before he pos-
sessed the gun at issue, “he accrued fve felony convictions”
and “served separate sentences of 36 months and of 20
months in prison.” Id., at 486. He was released from cus-
tody just six months before his arrest in this case. Greer
was an adult when he was convicted of these felonies and
when he served these two separate sentences of well over a
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517
Opinion of Sotomayor, J.
year. As the Court explains, this evidence outside the trial
record
is relevant to whether Greer has shown an effect on
his substantial rights.
On appeal, Greer had notice of the Rehaif requirement and
an opportunity to rebut the force of this evidence. He has
not done so. He therefore has not shown a reasonable prob-
ability that the jury in an error-free trial would reasonably
doubt that he knew of his felon status when he possessed the
gun. As a result, the error did not affect his substantial
rights.
B
Critically, this type of analysis is not permissible in the
“harmless error” context. When a defendant contempora-
neously objects and is wrongly overruled, appellate courts
generally review for harmless error. See Fed. Rule Crim.
Proc. 52(a). Under that standard, the Government retains
the burden to show that any constitutional error is harmless
beyond a reasonable doubt. See Neder v. United States, 527
U. S. 1, 7 (1999). Considering evidence outside the record
and placing any evidentiary weight on the defendant's silence
would be patently unfair in that context.
On harmless-error review, defendants have not forfeited
any of their rights, including their right to have a jury decide
whether there is reasonable doubt as to any element of the
crime charged. For that reason, a constitutional error is
harmless only if there is no reasonable doubt about whether
it affected the jury's actual verdict in the actual trial. See,
e. g., Sullivan v. Louisiana, 508 U. S. 275, 279 (1993) (review-
ing courts must determine “what effect [the error] had upon
the guilty verdict in the case at hand”). Incriminating evi-
dence the jury never considered is irrelevant to that inquiry.
See Yates v. Evatt, 500 U. S. 391, 404–406 (1991) (courts
“must ask what evidence the jury actually considered in
reaching its verdict” to decide the basis on which “the jury
actually rested its verdict”). Appellate courts cannot fnd
errors harmless simply because they believe that inculpatory
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518 GREER
v. UNITED STATES
Opinion of Sotomayor, J.
evidence the Government never put before the jury (like
Greer
's presentence report) is suffcient to fnd the defend-
ant guilty.
Nor have defendants on harmless-error review forfeited
their right to require the Government to prove its case be-
yond a reasonable doubt. The Court places great weight on
the fact that Greer has not explained how he might convince
a jury to doubt that he knew he was a felon. See ante,
at 510. On harmless-error review, courts cannot put such
weight on a defendant's failure to make an affrmative case.
The burden of proof beyond a reasonable doubt remains
squarely with the Government.
In sum, if the Government fails to carry its burden, over
the defendant's objection, appellate courts cannot correct
that shortcoming by looking to incriminating evidence the
Government never submitted to the jury or by relying on
the defendant's failure to demonstrate his own innocence on
appeal. Cf. In re Winship, 397 U. S. 358, 364 (1970) (a “free
society” requires that “every individual . . . have confdence
that his government cannot adjudge him guilty of a criminal
offense without convincing a proper factfnder of his guilt
with utmost certainty”). The Court's approach in Greer's
case is a function of the shifted burden of persuasion under
the substantial-rights prong of plain-error review. It has no
application in the harmless-error context.
C
Today's decision also should not be read to create a legal
presumption that every individual convicted of a felony un-
derstands he is a felon. The Government must prove the
knowledge-of-status element beyond a reasonable doubt, just
like any other element. Standing alone, the fact of a prior
felony conviction is hardly enough to meet that exacting
standard. Individuals convicted of crimes carrying a poten-
tial term of incarceration of more than one year may “ordi-
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519
Opinion of Sotomayor, J.
narily” or “typically” know that fact. Ante, at 506, 508, 510.
But
that is a far cry from proof beyond a reasonable doubt
that any individual person on trial knew his status when he
possessed a gun.
Nor does today's decision impose a uniquely heavy burden
on defendants who must establish that a Rehaif error af-
fected their substantial rights. Such defendants must make
only the same showing as any other defendant at this stage:
a reasonable probability of a different outcome. Defendants
who show a reasonable probability that a properly instructed
jury would have had reasonable doubts about the knowledge-
of-status element are entitled to relief.
There are many reasons a defendant might not know a
prior conviction could have led to a sentence of more than a
year in prison. Most obviously, as the Court recognized in
Rehaif, “a person who was convicted of a prior crime but
sentenced only to probation [may] not know that the crime
[was] `punishable by imprisonment for a term exceeding one
year.' ” 588 U. S., at –––. Even if a defendant was incarcer-
ated for over a year, moreover, that does not necessarily
eliminate reasonable doubt that he knew of his felon status.
For example, a defendant may not understand that a convic-
tion in juvenile court or a misdemeanor under state law can
be a felony for purposes of federal law. Or he likewise
might not understand that pretrial detention was included in
his ultimate sentence.
1
Confusion along these lines becomes
more likely as time passes.
1
Presentence reports can also be materially wrong or incomplete in
ways that did not matter at sentencing but might be critical to a Rehaif
defense. For instance, they might incorrectly describe the time a defend-
ant spent actually incarcerated, or not refect a defendant's mental illness
or the fact that a prior court erroneously described the consequences of
conviction. As the Court recognizes and the Government repeatedly rep-
resented at oral argument, see ante, at 509; Tr. of Oral Arg. in No. 19–8709,
pp. 42–43, 50–51, 61–62; Tr. of Oral Arg. in No. 20–444, pp. 16–17, defendants
may rely on new evidence to support any arguments like these on appeal.
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520 GREER
v. UNITED STATES
Opinion of Sotomayor, J.
If a defendant demonstrates why a jury in an error-free
tr
ial might have reasonable doubts as to the knowledge-of-
felon-status element, he has shown a reasonable probability
of a different outcome. That is so even if the fact of a prior
felony conviction is uncontested, and even if the reviewing
court would still vote to convict were it sitting on the jury
in the frst instance. After all, reasonable judges and juries
often disagree.
2
With these clarifcations, I join the portions of the Court's
opinion affrming the judgment of the Eleventh Circuit.
II
I dissent from the judgment as to Gary. The question the
United States asked the Court to answer is “[w]hether a de-
fendant who pleaded guilty to possessing a frearm as a felon
. . . is automatically entitled to plain-error relief if the district
court did not advise him that one element of that offense is
knowledge of his status as a felon.” Pet. for Cert. in
No. 20–444, p. I. That was the sole basis for the Fourth
Circuit's decision that the Rehaif error affected Gary's sub-
stantial rights, see 954 F. 3d 194, 203–208 (2020).
For the reasons the Court articulates, I agree that auto-
matic relief is inappropriate. Gary must therefore make a
case-specifc showing that the error affected his substantial
rights. Unlike Greer, Gary argues he can do so. See Brief
for Respondent in No. 20–444, pp. 46–50; Tr. of Oral Arg.
in No. 20–444, pp. 38–40. The Government addresses these
contentions on the merits, with no mention of forfeiture.
2
Compare, e. g., United States v. Lockhart, 947 F. 3d 187, 206 (CA4 2020)
(en banc) (Rushing, J., dissenting) (predicting the Government would not
have “ `any diffculty at all in offering overwhelming proof that [the de-
fendant] knew' ” his status in light of his more than “six years in prison”),
with Electronic Case Filing in No. 3:15–cr–34 (WDNC) (ECF), Doc. 72,
pp. 14–16 (defense closing argument at trial on remand, arguing exclu-
sively that the defendant did not know of his status based on juvenile
convictions); ECF Doc. 68 ( jury verdict of not guilty).
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See Reply Brief in No. 20–444, pp. 7–9. “Any further consid-
erati
on of that question is properly addressed by the [Court
of Appeals] on remand, subject to ordinary principles of
waiver and forfeiture.” McDonough v. Smith, 588 U. S.
–––, –––, n. 3 (2019); see also Retirement Plans Comm. of
IBM v. Jander, 589 U. S. –––, ––– (2020) (per curiam) (“[T]he
Court of Appeals should have an opportunity to decide
whether to entertain these arguments in the frst instance”).
I would limit our decision to the question presented and
would vacate and remand for the Fourth Circuit to decide all
remaining issues. I respectfully dissent from the judgment
as to Gary.
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