UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

DREW, WILBERT JEROME


98-3120a

D.C. Cir. 2000


*	*	*


Karen LeCraft Henderson, Circuit Judge: Wilbert J.  Drew pleaded guilty
to one count of possession of a firearm  while subject to a court
order in violation of 18 U.S.C.  s 922(g)(8). For the first time on
appeal Drew argues that  section 922(g)(8) is unconstitutional under
the Second and  Fifth Amendments to the United States Constitution.
Drew  also argues that the district court made several sentencing 
errors: (1) in finding under the United States Sentencing  Guidelines
(U.S.S.G. or Guidelines) that Drew's relevant con- duct included
attempted first degree murder; (2) in applying  the cross-reference
provisions, sections 2K2.1 and 2X1.1, of  the Guidelines; (3) in
violating his right to due process by  sentencing him based on
attempted first degree murder  supported by hearsay evidence; and (4)
in applying the two- level enhancement for restraint of victim
pursuant to U.S.S.G.  s 3A1.3. We conclude that, because of his guilty
plea, Drew  waived his right to challenge the constitutionality of 18
U.S.C.  s 922(g)(8). We further conclude that the district court 
properly applied the Guidelines' cross-reference provisions  and that
Drew's due process challenge to his conviction is  meritless. Because
we believe the district court improperly  applied section 3A1.3's
two-level enhancement for restraint of  victim, however, we remand for


I.


On December 2, 1997 a grand jury returned a single-count  indictment
charging Drew with violation of 18 U.S.C.  s 922(g)(8). Two days later
the government filed a thirteen- count superseding indictment charging
inter alia burglary,  kidnapping and violation of a protective order.
The charges  arose from Drew's armed forced entry into his estranged 
wife's house and his subsequent actions. At the time of the 


offense Drew had been married to Renay Short-Drew for  eleven years. He
had physically abused her at least four  times by "smacking, hitting,
punching [and] kicking" her.  PSR 4.1 On October 14, 1997 Mrs. Drew
petitioned the  District of Columbia (District) Superior Court for a
civil  protection order (CPO) against Drew and obtained a tempo- rary
protection order pending a hearing. On October 27,  1997 the Superior
Court issued a one-year CPO with standard  conditions, using the form
used by the Family Division of the  Superior Court. The CPO required
Drew to vacate the  family premises and retrieve his belongings
therefrom with a  police escort, ordered Drew to stay at least 100
feet away  from his wife and their three children, ordered Drew not to
 "assault, threaten, harass or physically abuse" his wife or the 
children in any manner and allowed Drew to contact her only  through
counsel. Id. Family counseling was also ordered  and was scheduled to
begin on November 19, 1997.


On November 2, 1997 Drew telephoned Mrs. Drew at about  2:30 a.m.
Distraught, Drew said that he needed help right  away and could not
wait until the November 19th family  counseling session. Drew told her
that the system had failed  him, everyone was turning their back on
him and he was  contemplating suicide. See id. Mrs. Drew suggested he 
contact their family doctor. See id. When she told him that  she
intended to hang up, he threatened to do something  "drastic." Id. A
few minutes later, Drew broke into their  house by shattering a
window. Mrs. Drew heard the sounds  of breaking glass and someone
running up the stairs. She  locked her bedroom door, grabbed her
portable phone and  hid in a closet. She dialed 911 and requested
help. While  she was on the telephone with the emergency dispatcher, 
Drew broke through the bedroom door and then through the  closet door.
He pointed a shotgun in her face and said, 




__________

n 1 "PSR" refers to the amended presentence investigation report.  "A"
refers to the Public Appendix and Record Material. "R. Drew  Tr."
refers to the grand jury testimony of Renay Short-Drew.  "Szala Tr."
refers to the grand jury testimony of Paul Szala, a law  enforcement
officer with the District of Columbia Metropolitan  Police Department
(MPD).


"Bitch, get up. Get out of this closet." R. Drew Tr. 9. She  pleaded
with Drew, saying "Please, please don't shoot me.  Don't kill me.
Don't shoot me with the shotgun." Id. When  she attempted to stall by
saying that she had to put on her  shoes, Drew declared, "You don't
need shoes where you are  going." A 117. At gunpoint, Drew forced his
wife to walk  out of the bedroom and into the upstairs hallway. There
they  met their 19-year-old son, Tamarkus, and their 15-year-old  son,
Jerral. Still pointing the gun at his wife, Drew said,  "Bitch, walk."
R. Drew Tr. 10. Drew went down the stairs  in front of Mrs. Drew,
continuing to point the shotgun at her,  and told her again to come
downstairs. See A 39. Eventual- ly she walked down the stairs,
stopping a few steps from the  bottom. Their two sons also walked
downstairs, trying to  talk to Drew. Drew again complained that he was
tired, the  system had failed him and he couldn't take it anymore. He 
seemed "unfocused" and his "eyes were glazed over." Mrs.  Drew cried
out again, "Please don't shoot me." A 118. At  one point, Drew pointed
the gun in his wife's face. See R.  Drew Tr. 11. He also pulled the
trigger of the gun. See  Szala Tr. 7, 8. Mrs. Drew heard a "tick" or a
"pop" but the  gun did not discharge. See R. Drew Tr. 11.2 When the
gun  did not discharge, Mrs. Drew and her sons jumped on Drew  and
attempted to take the gun away from him. MPD Officer  Paul Szala
arrived as they were struggling with Drew and  with his assistance
they subdued Drew and Szala placed  Drew under arrest.


The government and defense counsel entered into plea  negotiations. The
government initially offered to allow Drew  to plead guilty to two
charges--Count One (possession of a  firearm while subject to a court
order in violation of 18 U.S.C.  s 922(g)(8)) and an Information
charging burglary while  armed--noting that the Guidelines' base
offense level for  Count One would "probably be 24." Tr. 5/5/98 at 17.
Drew  rejected the offer. The government then offered to let him 




__________

n 2 Forensic testing subsequently established that one of the shells 
had been struck by the firing pin, confirming that the trigger had 
been pulled. See Szala Tr. 7.


plead guilty to Count One only. Drew first declined and  informed the
trial court that he no longer wished to be  represented by his
counsel. After an on the record discus- sion involving the court, all
counsel and Drew, Drew's counsel  and Drew agreed to confer again.
When the parties ap- peared in court again, one of Drew's lawyers,
Assistant  Federal Defender Gregory William Spencer, advised the 
court that, pursuant to a written plea agreement, Drew  wanted to
plead guilty to Count One. In exchange for Drew's  guilty plea, the
government dismissed all other charges  against him. The plea
agreement reserved the government's  right of allocution at Drew's
sentencing but provided that the  government would not oppose a
three-level reduction in  Drew's offense level for acceptance of


I believe that I was able to review for him the calcula- tions that we
believe would be appropriate in this case. I  believe that I was able
to discuss with him the calcula- tions that we have tried to foresee
that the government  may argue, including various reasons for upward
depar- tures and various reasons for downward departures.


Tr. 6/2/98 at 28. Before accepting Drew's guilty plea, the  district
court referred to the proffer of facts and informed  Drew that, by
pleading guilty, he waived the right to appeal  his conviction but
retained the right to appeal an illegal  sentence. Drew agreed with
the factual proffer and stated  that he understood he was waiving his
right to appeal his  conviction. See Tr. 6/2/98 at 42. The court then
accepted  Drew's guilty plea.


On September 28, 1998 the district court sentenced Drew  to 80 months
in prison followed by three years of supervised  release. In
sentencing Drew pursuant to the Guidelines'  cross-reference
provisions for firearm offenses, U.S.S.G.  ss 2K2.1 and 2X1.1, the
court applied the base offense level  for attempted first degree
murder, added a two-level en- hancement for restraint of victim under
U.S.S.G. s 3A1.3 and  allowed a three-level reduction based on


sponsibility, resulting in a total offense level of 27 and a 
Guidelines range of 70-87 months.


II.


The standard of review applicable to Drew's constitutional  challenge
to his conviction is discussed infra. We review the  district court's
application of the Guidelines as follows:  "[P]urely legal questions
are reviewed de novo; factual find- ings are to be affirmed unless
'clearly erroneous'; and [the  Court] give[s] 'due deference' to the
district court's applica- tion of the guidelines to facts." United
States v. Becraft, 117  F.3d 1450, 1451 (D.C. Cir. 1997) (quotation


A. Waiver


Drew argues that his conviction should be vacated because  the statute
under which he pleaded guilty, 18 U.S.C.  s 922(g)(8), violates the
Second and Fifth Amendments to the  United States Constitution. The
government responds that,  by pleading guilty, Drew waived his
constitutional challenge.  "It is well settled that a voluntary and
intelligent plea of  guilty made by an accused person, who has been
advised by  competent counsel, may not be collaterally attacked."
Bous- ley v. United States, 523 U.S. 614, 621 (1998) (quotation 
omitted). The United States Supreme Court has recognized  one
exception to the general rule where the defendant's  claimed right is
"the right not to be haled into court at all  upon the felony
charges." United States v. Broce, 488 U.S.  563, 574-75 (1989)
(quoting Blackledge v. Perry, 417 U.S. 21,  30-31 (1974)); see also
Menna v. New York, 423 U.S. 61, 62- 63 n.2 (1975) ("[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.").
Drew contends  that his constitutional challenge falls within the 
Blackledge/Menna exception. We disagree. In United  States v. Baucum,
80 F.3d 539 (D.C. Cir. 1996), we noted the  error in labeling a
challenge to the constitutionality of a  statute a jurisdictional
issue. In Baucum we did not apply  the Blackledge/Menna exception
because Baucum challenged  a sentencing statute. But subsequent cases


that Drew waived his constitutional challenge to 18 U.S.C.  s 922(g)(8)
because he failed to raise his challenge below.  See United States v.
Badru, 97 F.3d 1471, 1476 (D.C. Cir.  1996) ("[B]ecause Ishmeal
Badru's facial constitutional chal- lenge to the 'school-yard
statute,' ... is raised for the first  time on appeal, it is barred
by" Baucum, 80 F.3d 539)  (internal citation omitted.); see also
United States v. David,  96 F.3d 1477, 1482 (D.C. Cir. 1996) ("We do
not reach David's  Commerce Clause challenge to his 18 U.S.C. s
922(g)(1)  conviction because he failed to raise the claim in the


B. Attempted First Degree Murder


Drew argues that no evidence established that he pulled  the shotgun
trigger while pointing the gun at his wife.  Because the district
court's determination that Drew attempt- ed to commit first degree
murder is a factual finding, we  review it for "clear error" and
accord it "due deference." See  id.3 Mrs. Drew's grand jury testimony
supports the finding  that Drew attempted to murder her:


[Prosecutor]: But what I do need to ask you, you told me  that at one
point your husband had the gun pointed at  you, and you heard the
trigger?


[Mrs. Drew]: Yeah.


R. Drew Tr. 11. Furthermore, Officer Szala testified before  the grand
jury that Mrs. Drew told him that Drew had  pointed the gun at her
face and pulled the trigger. See Szala  Tr. 7-8. At sentencing Drew
did not contest that the gun  was pointed at Mrs. Drew when he pulled
the trigger. Also  at sentencing the government introduced in evidence
the  shotgun recovered from the Drew residence the night of the 
offense as well as the indented shell. Based on this evidence,  the
sentencing court did not err, at least not clearly so, in  finding
that Drew "took sufficiently premeditated actions to 




__________

n 3 The district court noted that although sentencing facts must be 
proved by a preponderance of the evidence, the findings here had  been
proved "beyond a reasonable doubt." United States v. Drew,  23 F.
Supp. 2d 39, 43 n.2 (D.D.C. 1998).


constitute attempted first degree murder." Drew, 23  F. Supp. 2d at
44.


C. Cross-Reference Provisions


Under the Guidelines, the sentence for a violation of 18  U.S.C. s
922(g) is calculated by reference to section 2K2.1,  entitled
"Unlawful Receipt, Possession, or Transportation of  Firearms or
Ammunition." Section 2K2.1 is divided into  three subsections:
subsection (a) assigns the base offense  level for firearms offenses;
subsection (b) lists specific of- fense characteristics to increase or
decrease the base offense  level; and subsection (c) is a
cross-reference provision, which,  as an alternative to subsections
(a) and (b), assigns a poten- tially higher base offense level to a
defendant who uses or  possesses a firearm in connection with the
commission or  attempted commission of another crime. Section 2K2.1
pro- vides in relevant part: (a) Base Offense Level (Apply the


.... 


(6) 14, if the defendant ... is a prohibited person;


.... 


(b) Specific Offense Characteristics


.... 


(4) If any firearm was stolen, or had an altered or  obliterated serial
number, increase by 2 levels.[4]


(5) If the defendant used or possessed any firearm or  ammunition in
connection with another felony offense  ..., increase by 4 levels.


.... 


(c) Cross Reference


(1) If the defendant used or possessed any firearm or  ammunition in
connection with the commission or at- tempted commission of another
offense ..., apply--


(A) s 2X1.1 (Attempt, Solicitation, or Conspiracy)  in respect to that
other offense, if the resulting  


__________

n 4 The shotgun had an obliterated serial number.


offense level is greater than that determined  above.


Section 2X1.1 in turn provides:


(a) Base Offense Level: The base offense level from the  guideline for
the substantive offense, plus any adjust- ments from such guideline
for any intended offense  conduct that can be established with
reasonable certain- ty.[5]


.... 


(c) Cross Reference


(1) When an attempt, solicitation, or conspiracy is  expressly covered
by another offense guideline section,  apply that guideline section.


Under section 2K2.1(c), the cross-reference provision, a de- fendant
who uses a firearm to commit or attempt to commit  another crime is
assigned the offense level that corresponds  "to that other offense,
if the resulting offense level is greater  than that determined" under
subsections (a) and (b). Specifi- cally, section 2K2.1(c) provides
that the defendant's offense  level should be determined under section
2X1.1. Section  2X1.1, in turn, provides that the base offense level
for a crime  involving attempt, solicitation or conspiracy should be
calcu- lated either by reference to the offense level of the substan-
tive offense, see U.S.S.G. s 2X1.1(a), or "[w]hen an attempt, 
solicitation, or conspiracy is expressly covered by another  offense
guideline section, apply that guideline section," id.  s 2X1.1(c).


Drew argues that the district court erred in applying the 
cross-reference provisions of sections 2K2.1 and 2X1.1 to  sentence
him under the attempted murder guideline. See  Drew, 23 F. Supp. 2d at
43-44. Drew contends that he  should have been sentenced under section
2K2.1(a) & (b)(5)  and that the sentence imposed by the district court
violated  his right to due process. 


__________

n 5 Application Note 2 of section 2X1.1 defines "substantive offense" 
as "the offense that the defendant was convicted of ... attempting 
... to commit."


1. Application of sections 2K2.1 and 2X1.1


The district court's interpretation of sections 2K2.1 and  2X1.1
involves a question of law that we review de novo. See  Becraft, 117
F.3d at 1451. We must first determine which  subsection of 2K2.1 to
apply. Drew argues that under sub- sections (a) and (b), his total
offense level should be 17 and  his sentencing range should be 30 to
37 months.6 Subsection  (c) of section 2K2.1, however, is the
applicable provision  because: (1) Drew "used or possessed [the]
firearm or ammu- nition in connection with the commission or attempted
com- mission of another offense" namely, attempted first degree 
murder, and (2) the resulting base offense level under subsec- tion
(c) would be greater than 17. Section 2K2.1(c) then  refers the


Section 2X1.1(c) instructs the court to apply the guideline,  if any,
that "expressly cover[s]" an attempt to commit "anoth- er offense" as
used in section 2K2.1(c). The government  argues that, as the district
court determined, Drew attempted  to commit first degree murder
because "he had the requisite  state of mind, and took sufficiently
premeditated actions to  constitute attempted first degree murder."
Drew, 23  F. Supp. 2d at 44. As discussed supra, we conclude that the 
district court did not clearly err in determining that Drew's 
relevant conduct constituted attempted first degree murder.  Referring
to the guideline for "Assault With Intent to Com- mit Murder;
Attempted Murder," U.S.S.G. s 2A2.1,7 the 




__________

n 6 The level 17 is calculated from the base offense level of 14 
because Drew was a prohibited person, see U.S.S.G. s 2K2.1(a), to 
which is added a two-level adjustment for the gun's obliterated 
serial number, see id. s 2K2.1(b)(4), and a four-level adjustment for 
use of the weapon in connection with another felony offense. See  id.
s 2K2.1(b)(5). With a three-level credit for acceptance of re-
sponsibility, see id. ss 3E1.1(a) and (b), Drew's offense level would 
be 17. We agree with Drew that the district court erroneously  added a
two-level adjustment for physical restraint of the victim  pursuant to
section 3A1.3 of the Guidelines. See infra at 13-14.


7 U.S.S.G. s 2A2.1 provides:


court applied the base offense level (28) for attempted first  degree
murder. After the two-level increase for restraint of  victim and the
three-level reduction for acceptance of respon- sibility, Drew's total
offense level is 27 and his sentencing  range is 70 to 87 months. See
Drew, 23 F. Supp. 2d at 44.


Drew further argues, however, that even if section 2K2.1(c)  is
applicable, the sentencing court erred in interpreting sec- tion
2K2.1(c)'s cross reference to section 2X1.1 because sec- tion 2X1.1(a)
uses the offense level for the "substantive  offense." Application
Note 2 of section 2X1.1 defines "sub- stantive offense" as "the
offense that the defendant was  convicted of ... attempting ... to
commit." Therefore, in  Drew's view, the sentencing court should have
applied the  base offense level for the offense of conviction
only--posses- sion of a firearm by a prohibited person. Instead, the 
sentencing court, applying section 2X1.1(c), used the base  offense
level for attempted first degree murder. Drew's  argument rests upon
the applicability of "substantive of- fense." But "substantive
offense" relates only to section  2X1.1(a) and (b); "substantive
offense" is not mentioned in  section 2X1.1(c). Application Note 2,
which defines "substan- tive offense," "applies only if section 2X1.1
is applied directly,  rather than as a cross-reference from section
2K2.1." United  States v. Branch, 91 F.3d 699, 743 (5th Cir. 1996)
(quotation  omitted); see also United States v. Fleming, 8 F.3d 1264, 
1266 (8th Cir. 1993). Therefore, section 2X1.1(c) requires the  court
to apply the offense level for attempted first degree  murder


2. Due process


Drew next argues that his sentence violates his right to due  process
because the district court "[i]n effect ... convicted  appellant of
attempted murder, and then sentenced him to  the far greater offense,"
see Petitioner's Br. 26, and relied  upon hearsay evidence in doing
so. Drew concedes that he  never raised his due process claim below
but argues that his 




__________

n (a) Base Offense Level:


(1) 28, if the object of the offense would have constituted  first
degree murder.


general challenge to the applicability of the cross-reference 
provisions preserved the issue. See id. 25. Nevertheless,  because the
district court lacked the opportunity to rule on  the issue, we review
Drew's challenge for plain error only.  See United States v. Broxton,
926 F.2d 1180, 1183 (D.C. Cir.  1991). In the sentencing context, we
have held that error is  "plain" where it "is obvious under settled
law and would  result in grave prejudice or a miscarriage of justice
if not  corrected on appeal." United States v. Watson, 57 F.3d 1093, 
1097 & n.6 (D.C. Cir. 1995) (citation omitted). Drew's chal- lenge
falls substantially short of this standard.


First, the United States Supreme Court has held that a  sentencing
court may consider a defendant's conduct apart  from his offense
conduct without violating due process. See  United States v. Watts,
519 U.S. 148, 151-53 (1997); Witte v.  United States, 515 U.S. 389,
395 (1995) (consideration of  "relevant conduct" under Guidelines
bears on character of  offense of conviction and does not punish for
different of- fense); Nichols v. United States, 511 U.S. 738, 747
(1994)  (reaffirming propriety of sentencing court's consideration of 
"a defendant's past criminal behavior, even if no conviction  resulted
from that behavior"); see also 18 U.S.C. s 3661 ("No  limitation shall
be placed on the information concerning the  background, character,
and conduct of a person convicted of  an offense which a court of the
United States may receive and  consider for the purpose of imposing an
appropriate sen- tence.").


Second, the district court indeed relied in part on Szala's  hearsay
testimony. His testimony corroborated Mrs. Drew's  testimony regarding
Drew's actions. The Supreme Court has  specifically held that the
rules of evidence do not restrict the  evidence a sentencing court may
consider. See Nichols, 511  U.S. at 747 ("As a general proposition, a
sentencing judge  may appropriately conduct an inquiry broad in scope,
largely  unlimited either as to the kind of information he may consid-
er, or the source from which it may come."). The sentencing  court did
not consider any prohibited evidence in sentencing  Drew and,
accordingly, we reject his due process claim.


D. Physical restraint


Finally, Drew argues that the sentencing court improperly  added a
two-level adjustment under U.S.S.G. s 3A1.3 for  "physically
restrain[ing] [the victim]"8 because he did not  physically touch his
wife and any restraint was part of the  offense itself. The government
responds that Drew physical- ly restrained Mrs. Drew by ordering her
to leave her bed- room and walk down the stairs at gunpoint. Whether
the  district court properly added the two-level adjustment is a 
mixed question of law and fact. On a mixed question of law  and fact
we use a sliding scale depending on the "mix" of the  question. See
United States v. Kim, 232 F.3d 513, 517 (D.C.  Cir. 1994). Because the
facts on this issue are not significant- ly in dispute, the issue is
primarily a question of law and  therefore review closer to de novo is


Application Note 1 to section 3A1.3 defines "physically  restrained,"
referencing commentary to section 1B1.1, as "the  forcible restraint
of the victim such as by being tied, bound,  or locked up." U.S.S.G. s
1B1.1. We agree that "the use of  the modifier 'such as' in the
definition of 'physical restraint'  found in s 1B1.1, Application Note
1(i), indicates that the  illustrations of physical restraint are
listed by way of example  rather than limitation." United States v.
Anglin, 169 F.3d  154, 163 (2d Cir. 1999) (citation and internal
quotation marks  omitted). Nevertheless, the phrase "being tied,
bound, or  locked up" indicates that physical restraint requires the
de- fendant either to restrain the victim through bodily contact or 
to confine the victim in some way. See United States v.  Harris, 959
F.2d 246, 265 (D.C. Cir. 1992) (victim was "physi- cally restrained"
when defendant's coconspirators beat victim  and detained him for
seven days). While the Ninth Circuit  has decided that forcing someone
to move by gunpoint consti- tutes physical restraint, see United
States v. Thompson, 109  F.3d 639, 641 (9th Cir. 1997), no other
circuit has found  physical restraint without some type of confinement
accompa- nying the forced movement at gunpoint. See Anglin, 169 




__________

n 8 U.S.S.G. s 3A1.3 states, "If a victim was physically restrained in 
the course of the offense, increase by 2 levels."


F.3d at 163-64. As the Second Circuit noted in Anglin, "The  most
pertinent definition of 'physical' is 'of the body as  opposed to the
mind, as, physical exercise.' " Id. at 164  (quoting Webster's Deluxe
Unabridged Dictionary (1979) at  1353) (emphasis in original). The
required restraint must, as  the language plainly recites, be
physical. While Mrs. Drew  no doubt felt restrained by Drew, she was
"not subject to  physical restraint, as we interpret the Guideline's
use of that  phrase." Id. at 164-65. Any other interpretation would 
effectively add the two-level adjustment to almost any at- tempted
murder because presumably any victim would feel  restrained if
directed to move at gunpoint. Because we  conclude that Drew's actions
did not include physical re- straint, we remand to the district court
to resentence without  the two-level adjustment.


For the foregoing reasons, we affirm Drew's conviction.  We vacate his
sentence, however, because of the incorrect  addition of a two-level
adjustment for physical restraint of the  victim and remand for
resentencing in accordance with this  opinion.


So ordered.


Edwards, Chief Judge, concurring in the judgment: I  concur in the
judgment of the court. I write separately,  however, because I feel
that the court's disposition of the so- called Blackledge/Menna issue
under the rubric of "waiver"  warrants further explanation.


Appellant Drew has argued to the court that his conviction  for
violating 18 U.S.C. s 922(g)(8), pursuant to a plea of  guilty, must
be vacated because the statute, both on its face  and as applied in
this case, violates the Second and Fifth  Amendments to the
Constitution. The Government, citing  United States v. Broce, 488 U.S.
563 (1989), argues that Drew  is barred from raising these
constitutional challenges, be- cause, normally, a guilty plea is not
subject to later challenge  before an appellate court. Drew, citing
Blackledge v. Perry,  417 U.S. 21 (1974), and Menna v. New York, 423
U.S. 61  (1975), responds that a defendant normally retains the right 
to challenge the constitutionality of a statute even following a 


The majority opinion holds that Drew's attempt to invoke  the
Blackledge/Menna exception fails for two reasons: first,  the
constitutional issues now raised by Drew were "waived"  when he failed
to raise them first with the trial court; and,  second, the
constitutional questions need not be reached by  this court, because
they do not present a "jurisdictional"  question. I fail to comprehend
this line of analysis in light of  my understanding of the


There are a number of potential theories of "waiver" and  "forfeiture"
in the criminal context. One is the well-known  "plain-error" rule,
most recently explained in full in United  States v. Olano, 507 U.S.
725, 731 (1993). As the Court noted  there, "[n]o procedural principle
is more familiar to this Court  than that a constitutional right, or a
right of any other sort,  may be forfeited in criminal as well as
civil cases by the  failure to make timely assertion of the right
before a tribunal  having jurisdiction to determine it." Id.
(citations and inter- nal quotation marks omitted). Absent "plain
error," objec- tions not timely raised at trial normally cannot be


Another theory of forfeiture/waiver arises in the context of 
post-trial, collateral attacks. In such cases, absent a showing 


of "cause and prejudice," a defendant is barred from raising a 
constitutional challenge that could have been raised at trial.  See,
e.g., United States v. Frady, 456 U.S. 152, 167 (1982).


An entirely different line of inquiry arises with respect to 
challenges that follow a guilty plea. As noted above, the  general
rule in such cases is that a conviction pursuant to a  guilty plea is
not subject to later challenge bfore an appellate  court. See Bousley
v. United States, 523 U.S. 614, 621 (1998).  The principal exception
to this rule is the so-called Black- ledge/Menna principle 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." Menna,  423 U.S. at 62-63 n.2. The Blackledge/Menna
exception does  not depend upon whether the objection is labeled
"jurisdic- tional," at least the Supreme Court has never said this. 
Rather, the critical issue seems to be whether the constitu- tional
challenge involves a claimed right by the defendant  "not to be haled
into court at all upon the felony charge."  Broce, 488 U.S. at 575
(quoting Blackledge, 417 U.S. at 30- 31). In Broce, the Court made it
clear that the Black- ledge/Menna exception is not without limits,
holding that a  guilty plea barred a later double jeopardy claim where
the  violation was not clear on the face of the indictment. 488  U.S.


The question that we face is whether there should be an  additional
barrier to the invocation of the Blackledge/Menna  exception, i.e.,
whether a defendant must raise the constitu- tional objection before
the trial court first in order to be able  to raise it later before an
appellate court. The Supreme  Court has never addressed this issue.


Nor has this court ever addressed this issue. The majori- ty's reliance
on United States v. Baucum, 80 F.3d 539 (D.C.  Cir. 1996), United
States v. Badru, 97 F.3d 1471 (D.C. Cir.  1996), and United States v.
David, 96 F.3d 1477 (D.C. Cir.  1996), is misplaced. Baucum, Badru,
and David are simple  "plain error" cases. Even though they talk in
terms of  "waiver" and "bar," they can mean nothing more than "forfei-
ture." As the Supreme Court said in Olano, "[w]aiver is  different
from forfeiture. Whereas forfeiture is the failure to  make the timely
assertion of a right, waiver is the intentional 


relinquishment or abandonment of a known right." 507 U.S.  725, 733
(1993) (citations and internal quotation marks omit- ted). If the
majority means to suggest that, in a post-trial  context,
constitutional challenges raised on appeal that were  not raised below
are automatically waived--with no possible  inquiry into plain
error--that is simply wrong. The Supreme  Court has made it clear that
"[a] rigid and undeviating  judicially declared practice under which
courts of review  would invariably and under all circumstances decline
to con- sider all questions which had not previously been specifically
 urged would be out of harmony with ... the rules of funda- mental
justice." Id. at 732 (quoting Hormel v. Helvering, 312  U.S. 552, 557
(1941)). The forfeiture analysis as articulated in  Olano is the law
of the land, and our circuit has no authority  to change it to some


In any case, Baucum, Badru, and David have nothing  whatsoever to do
with the application of the Blackledge/  Menna exception. The court in
Baucum discussed  Blackledge/Menna because the defendant in that case
raised  the novel question of whether a facial challenge to the
consti- tutionality of a criminal statute is a jurisdictional question
 that can be raised at any time. 80 F.3d at 540. The panel in  Baucum
recognized that the Blackledge/Menna line of au- thority lent some
support to the defendant's claim. But  Baucum does not purport to
apply the Blackledge/Menna  exception. In fact, Blackledge/Menna has
no direct bearing  on the issues in Baucum--it is discussed merely by
way of  analogy. So I fail to understand the majority's reliance on 
these three cases in its resolution of the Blackledge/Menna  issue.


The majority opinion appears to suggest that the mere  failure to raise
a constitutional challenge before the trial court  automatically
"waives" a defendant's right to pursue the  issues in a subsequent
attack under the Blackledge/Menna  exception. The Supreme Court has
never said this, and, so  far as I can tell, none of our sister
circuits subscribe to such a  rule.


If a court faces a situation in which a defendant has pled  guilty to a
charge with respect to which it is facially clear that 


he could not be prosecuted--i.e., as that is understood under  the
Blackledge/Menna principle--it would be an extraordi- nary proposition
to say that the defendant will nonetheless go  to jail because he
failed to object before the trial court. The  Fifth Circuit seemed to
recognize this problem in United  States v. Knowles, 29 F.3d 947 (5th
Cir. 1994). The defen- dant there pled guilty to possession of a
firearm in a school  zone. Shortly after judgment in Knowles, the
court of ap- peals, in another case, ruled that the underlying statute
upon  which the charge in Knowles was based was unconstitutional, 
because Congress had not properly invoked its power under  the
Commerce Clause when it enacted the statute. The  defendant in Knowles
never raised this constitutional chal- lenge before the trial court.
The court of appeals, however,  first employed the "plain error" rule
to determine whether to  entertain the challenge, then, finding no
forfeiture, the court  considered the claim on the merits pursuant to
the  Blackledge/Menna exception. The Fifth Circuit flatly reject- ed
the Government's claim that the defendant's guilty plea  barred
consideration of the constitutional claim:


Noting that a guilty plea generally waives defects in the  underlying
proceedings, the government also claims that  Knowles's conviction on
Count Two is proper because  Knowles pleaded guilty. This argument is
not persua- sive. We have reversed other convictions against defen-
dants who had pleaded guilty to charges brought under  the Gun Free
School Zones Act. See United States v.  Handy, 8 F.3d 20 (5th Cir.
1993) (unpublished). We  have done so for the well-established reason
that a guilty  plea does not waive the right of the defendant to chal-
lenge the constitutionality of the statute under which he  is
convicted. See Menna v. New York, 423 U.S. 61, 62- 63 n.2, 96 S. Ct.
241, 242 n.2, 46 L.Ed.2d 195 (1975) ("[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.").


Id. at 952.


In other words, the court in Knowles addressed the forfei- ture issue
through the normal "plain error" lens, and then 


applied the Supreme Court's "judged on its face/the charge is  one
which the State may not constitutionally prosecute" test  in allowing
an invocation of the Blackledge/Menna exception.  I think this is the
correct approach. There are not many  cases in which a defendant is
going to be able to satisfy both  the plain error rule and the
Blackledge/Menna standard to  gain review where no objection has been
raised in the trial  court. Nonetheless, the Knowles approach ensures
protec- tion for those few defendants whose alleged "guilt" is
illusory,  because it is clear on the face of the charge that the
State had  no constitutionally sound basis upon which to prosecute.


Drew argues that section 922(g)(8) violates the Second and  the Fifth
Amendments. These challenges raise no plain  error. As the Supreme
Court has noted, a challenge not  raised below will not meet the plain
error standard unless it  "seriously affect[s] the fairness, integrity
or public reputation  of judicial proceedings." Olano, 507 U.S. at 732
(citations  and internal quotation marks omitted). The issues raised
by  Drew do not come close to meeting the high standards of  plain
error. Indeed, as the Government noted in its brief,  Drew's
constitutional challenges are largely baseless. See  Br. and Addendum
for Appellee at 11 n.5.


I concur in the judgment in the instant case, not simply  because Drew
failed to raise his constitutional claims before  the trial court, but
because he has failed to demonstrate any  plain error in the judgment
based on his guilty plea. Absent  plain error, I agree that Drew
forfeited his right to raise his  claims before this court. Because
there is no plain error in  this case, there is no reason to address
whether Drew's claim  on its face implicates the constitutional power
of the Govern- ment to prosecute. In short, Drew cannot resort to the 
Blackledge/Menna exception to raise his constitutional claims.