In United States v. Simmons, issued on December 6, 2013, Jonathan Simmons was not only charged with a crime that does not exist; he pled guilty to it. No-one – not his lawyer, the prosecutor, or the judge who took the plea – noticed that the law does not in fact penalize the possession of a firearm “during or in relation to” a drug trafficking crime. Rather, the relevant crimes are either “us[ing] or carr[ying] a firearm” “during and in relation to any . . . drug trafficking crime” or “possess[ing] a firearm” “in furtherance of any such crime.”

The difference between the two crimes had real meaning for Mr. Simmons – and indeed the Eighth Circuit reprimanded the government for arguing that the two were virtually indistinguishable. The law requires a nexus between the gun possession and the drug distribution. Here, Simmons argued, there was no such nexus, since the firearms recovered were locked in a safe and he stated he used them for “home protection.” Had the district court complied with Rule 11 to properly inform him of the elements of the possession charge, “he would have recognized the shortcomings in the government’s case and would have put the government to its burden of proof at trial.”

The Eighth Circuit agreed with Simmons that the district court committed plain error when it failed to inform him of the legal elements of the firearms charge. The Court, however, found the error did not affect Simmons’ “substantial rights” because there was no “reasonable probability” that but for the error, “he would have declined to plead guilty, relinquished the substantial benefits of his plea agreement, and insisted on proceeding to trial on all three original Counts of the indictment.”

It is worth noting that Simmons could not have “insisted” on proceeding to trail on all three original counts, since one was subject to dismissal as a matter of law. Moreover, it is important to note that this “beneficial” plea agreement was obtained on the basis of bilateral errors and erroneous advice. The question is whether Simmons defense counsel could have negotiated a better deal had s/he understood in advance that Simmons was charged with a crime that didn’t exist, and arguably his conduct did not come within the reach of the crimes the prosecutor had intended to charge.