* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0282P (6th C ir.) File Name: 04a02 82p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R OBER T A LLE N W AUCA USH , Petitione r-Appell ant,

v.

U NITED S TAT ES OF A MERICA , Respondent-Appellee. X

- - - -
> , - - N No. 03-1072

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-73671—Nancy

G. Edmunds, District Judge. Argued: March 19, 2004 Decided and Filed: August 26, 2004

Befor e: COLE and GI

LMAN , Circuit Jud

ges; SCHWARZER, Senior District Judge. *

_________________ COUNSEL

ARGUED: John A. Shea, Ann Arbo r, Mich igan, for Appellan t. William J. Sauget, ASSISTA N T UNITED 2 Waucaush v. United States No. 03-1072

STATES AT TORN EY, Detroit, Michigan, for Appellee. ON BRIE F: J ohn A. Shea, Ann Arbor, Michigan, for Appellan t. William J. Sauget, ASSISTANT UNI TED STATES ATTORNEY, Detroit, Michigan, for Appellee.
COLE, J., delivered the opinion of the cour t, in which GIL MAN, J., jo ined. SCHWARZER, D. J. (pp. 21-25), delivered a separate dissenting opinion.

_________________ OPINION

_________________ R. GUY C OLE, JR., Circuit Judge. This case reminds us t hat names can be deceiving. We must determine whe the r , under the Ra cketee r Influen ced Co rrupt Orga niza tions Act (“RICO”), 18 U.S. C. § 1962, the activities of a Detroit-area street gang known as t

he Cash F low Posse (“CFP”) had a substantial effect

on the nation’s cash flow. Petitioner Robert Waucaush

challenges, via 28 U.S.C. § 2255, his convict i on and sentenc e resulti

ng from his pleading

guilty to conspiring to violate RICO. Heargues that in light of Congress’s limited authority und er the Commerce C lause, the conduct underly ing hi s convi ctions fell short of RICO’s requirement that the regulated enterpr ise “af fect inte rstate or foreign commerce.” The district c ourt disa

greed and denie d his p etit ion; we REVERSE

. I. BACKGROUND

OnJuly 1 6, 1997, f

ederal prosecu tors u nv eiled an indictmentagains tsev en members of the CFP, including Waucaush, charg i ng in relevant part that they violated and conspired to violate RICO. Said statute prohibits “any person employed by or associ ated with

any enterpr ise engaged in, or activities of

whichaffec t, interst

ate or f oreign commerc e, to conduct or particip ate, dir

ectly or indire ctly , in

the conduct of suchenterprise’s affairs throug h a pa ttern of racketeeringNo. 03-1072 Waucaush v. United States 3

acti vity [.]” The indictment alleged that, to protect their turf, Waucaush

and his colleagues murdered, conspired to murder, and (during less successful outings) assaulte d, with inte

nt to murder, mem bers of two rival gangs that soug ht to expand their operations in Detro i t. On Apri l 16, 1998, Waucaush moved to dismiss the indictment. He argued that, within the meaning of

the statut e and the Constitution, those acts did not affect int erstat e commerce. The district court denied the motion five days late

r, and, on May 7, 1998, Waucaush pled guilty to RICO conspiracy . Waucaush later had second thoughts

. On June 9, 19 98, actin g as his own la

wyer, he moved to withdraw his plea, claiming that it was unknowing and involunta

ry . Disag

reeing , the distr

ict cour t denied h

is motion, and

on March 9, 1999, sentenced Waucaush to prison for life. With n ew counsel, Waucaush appealed, and in an unpublished

opinion, see Uni ted

St at es v . Wa uca ush , 2000 WL 1478361 (6th Cir. Sept. 27, 2000), we affirmed.

InMay 2000, the Supreme Court de cided two cases (further discussed below) that articulated additional restrictio ns on the scope of the Co mmerce Clause. See United States v. Morrison , 529 U.S. 59 8 (2000); Jones v. United States , 529 U.S. 848 (2000 ). Follow

ing thes e decisi ons, cha

rges a gainst
o n e of Waucaush’s co-defendants, whom the district court had yet to sentence, were dismissed. But Waucaush—who on Septemb er

2 7, 2001, pursuant to 28 U.S.C. § 2255, collater ally challenged his conviction, rely ing on the s a me commerce argume

nts as did h

is co-def endant—d

id not fare as well. On December 9, 2002, the district cou rt d enied his pet ition. Receiving a certificate of a ppealability fro m th e districtcourt on a

ll of his cla

ims, Waucaush timely appea led.

II. ANALY SIS

Waucaush

argues that his plea was unintelligent, and thus void, due to his a

nd th e district court’s misunderstanding of the reach of RICO’s c ommerce elem ent. A t the time o f his plea, the scope of Congre ss’s commer ce power was controlled by United States v. Lopez , 514 U.S. 549 (1995). Following 4 Waucaush v. United States No. 03-1072

his plea, the

Supreme C ourt, in

M orris on and Jones , further restricted the reach of the Commerce Clause. And in Bousley

v. United States , 523 U.S. 614 , 620 (199 8), the Co urt held that a constitu

tional ch alleng e to a gu

il ty p le a may invoke subsequent

“decisions of [the Supr

eme Court

] holding t

hat a substan tiv e federa

l crimina l statute d

oes not re ach cer

tain conduct.”

A. Procedu ral Defaul

t Waucaush, however, did not challenge the intelligence of his p lea on direct appeal, and the Court held in Bousley tha t “even the voluntariness and intelligence of a g uilty plea can be attacked on collateral review only if first ch allen ge d on direct review.” Id . at 621. Altho ugh Waucaush would normally have lost his chance to challenge the plea, Bousley detailed two circ umsta nces t hat would excuse a defendant’s fa ilure to raise such a claim on direct appeal: (1) there wa s both “cause” for thedefault and “prejud ice” tha t would re sult fr om failing to consider the challenge; or (2) the defe ndan t
was “actua

lly innocent” of the crime to which he pled. Id. at 622. We first consider the exception for actual innocence. “To establish actual innocence, [Waucaus h] must demonstrate that inlight of all the ev idence, it i s more likely than not that no
reasona ble juror would have convict ed him.” Id. (internal quotations omitted). In other word s, we must look at all the evidence in the r ecord , and determine whether—as a matter of law—the G overnme

nt could est

ablish tha

t Waucaush violated the RICO statute.

Actual inno ce nce does not mean that Waucaush must be innocent of all bad deeds. The question before usis whether Waucaush

is ac tually innocent of violating RI CO. Put another way, the inquiry

is whether the record contains evidence that the CFP, the e nterpr ise in question, affected
comm erce within the meaning of RICO. I n rebutting the claim of actual innocenc e, “the G overnme nt [is] permit

ted toNo. 03-1072 Waucaush v. United States 5

present any admissible evidenc e of [Wauca ush’s] gu ilt even if that evidence was not presented during [Waucaush’s] plea colloquy and would not normally have be en offered before [the Supreme Court’s decisions in Morrison and Jones .]” Id. at 624. We look not just at the facts to which Wauca us h admitted when he pl ed gu il ty, but also at any other e vidence of his guilt that

the Government has marshaled. Waucaush is actu all y innocent , and ther

efore e ntitled to bring the

otherwis e defaulted challen ge to his plea, onl y if the entire record before us fails to demonstrate that he violated RICO. Contrary to the positions of

the Government and the district
co urt, Waucaush may be a ctually innocent eve

n though h e admitted as part o f his p lea that his activities “affected interstate commerce.” To illustrate : imagine that Wauc aush had admitted to stealing apples from the P ost Off ice, was advised by hi s c ounsel and the court that apples were vegeta bles, and pl ed gu ilty

to “stealin

g veg etables

from a federal building.” If the Supreme Court late r h eld t hat, as a matter of law, apples were not

vegeta bles, Wauc aush woul d be actually innoce

nt of “stealing ve get ables.” Just as Waucaush’s misinformed admission of a legal conclusion would not have t

urned ap ples intovegeta

bles, his g

uilty plea intoday’s ca se could not have created an eff ect on commerce that the law did not otherwise recognize.

At the co re, Waucaush argues that he is actua lly innocent of violating RICO b ecause

the statute reaches only

enterprises “enga ged in, or the activities of which affect, interstate o r foreign commerce.” 18 U.S.C. § 1962(c). The Government does not contend that the CFP was itsel f “e ngaged in” intersta te commerce. See United States v. Robertson
, 514 U.S. 669 (1995 ) (per c

uriam). I t argue s only

th at the CFP ’s activities “affect[ed]” interstate commerce. Bec ause we should avoid inte

rpreting a statute to prohibi

tconduct which Congre ss may not

constituti onally

regulate, RICO’ s meaning of “affe ct[ing] int

erstate or foreign commerce” c annot exceed the bounds of the Commerce Clause. See Jones 529 U.S. at 852 (inte rpret ing c omm erce e lement of federa l arson sta

tute 6 Waucaush v. United States No. 03-1072

to be coextensive with Commerce Clause). This means that
we may draw on c ases tha

t interpr et (in li ght of th e Commerce Clause) t

he comme

rce ele ment of sta

tutes other thanRICO, as well a s cases t hat in t erpret the Commerce Clause directly.

RICO regula

tes ente rprises, not people . Althoug h RICO “does not require the viol ent ac ts themselves to have any
conn ection to interstate commerce other than that they were committed

for the pur

pose o f esta blis hing o r main taini ng a position within the

enterpr is e, ” United States v. Crenshaw
, 359 F.3d 977, 984 (8th Cir. 2004), the predica te actsmust still further the goa ls of an enterprise that itself affects commerc e. The indictment in our ca se defines the ente rprise a s Waucaush and his collea gues, w ho bande d together to form a street gang inDetroit. Accordingly , when we determine whether the enterpr ise affect edinterstate commerce, we look to the activitie s of the CF P.

The parties disagree whether the CFP’s effect on

commerce must be substantial, or whether a minimal effect will suffice. The Government co ntends that it need show only that the CFP’s activities had

a minimal effect on commerce. It relies
on United Sta tes v. Rid

dle , 249 F.3d

5 29 (6th Cir. 2001), whichstated that “a de mi nimis connection suffices for a R ICO enterprise that ‘affects interstate commer ce.’” Id. at 53 7. But a minimal connection sufficed in Riddl e onl y because the ent erp rise itse lf had en gage d in economic activity

— it operated an illegal gambling business, extorted
mo ne y, and fenced stolen merchandise. Id. at 537. See also, e.g. , Crenshaw , 359 F.3d at 986 (upholdingRICOconviction when intrastate acts of viol enc e furthe red economic enterprise); United Sta tes v. Esp inoza , 2002 WL 31769470,
a t*3 (7th Cir. Dec. 5, 2002) (same); United Sta tes v

. Feliciano
, 223 F.3d 102, 118 (2d Cir. 2000 ) (s ame); United States v. Miller , 116 F.3d 641, 674 (2d Cir. 1997) (same). As the Ninth Ci rcuit pu t it, in upholding a RICO conviction p redic ated

on only a de minimis effect on commerce, “the heart of [the defendant’s] cr imes, drug trafficking andNo. 03-1072 Waucaush v. United States 7

extortion, are quintessential illegal economic activities.” United States v. Shryock

, 342 F.3d 948, 984 n.6 (9th Cir. 2003).

The problem w

ith the Government’s reliance on Riddle and its cousin s is tha t unlike tho se case s, there is no evide

nce in
our case tha t the CFP was in

volved in a

ny s ort of ec onomic enterprise. The Supre

me Cour t in Morrison “reject[ed] the argu ment that Cong

ress may regula te nonec onomic, vi ole n t criminal conduct b ased sole ly on that con duct’s a ggre gate effect on interstate commerce.” Morr ison , 529 U.S. at 617- 18. Although on e CFP member had previously been arrested for trafficking drugs, an ac tivity that is economic, Unite d States v. T

u cker , 90 F.3d 1135, 1140 (6th Cir. 1996), the Government

admits tha

t these dr ug cha rges w ere unr

elated to the activities of

the CFP. Nor has the Government produced evidence indi ca ting tha

t CFP did an

yth ing like peddle cigar ettes, see United States v. Abdullah
, 162 F. 3d 897, 901 ( 6th Cir. 1998)(upholdin

g fede ral authority

to prohibi

t intrasta te traffi cking o f unta xed c iga ret tes); inst igate c redit fraud, see United States v. Valenzeno , 123 F.3d 365, 367-68 (6th Cir. 1997)(samefor

fraudulently obtaining

consumer credit); org anize

gambling, see United Sta tes v. W all , 92 F.3d 1444, 1447-52 (6th Cir. 1996) (same for operating ga mbling business), or anything

else econom i c. All that is l eft is violence qua violence—which the Sup rem e Court in Morrison , 529 U.S. at 613, plainly classified as conduct of the noneconomic strain. Consequ ently
, in our ca se, wher e the ent erprise itself did notengage in econ omic activity, a minimal effe ct on
commerce will not do. More signi ficant in terstate
com mercial ripples might have arisen, for instance, had the CFP attacked individuals or o rga nizations who were conducting or assisti

ng inter state bus iness. See United States

v. Laton , 352 F.3d 286, 301-02 (6th Cir. 2003) (upholding federal authority

to prohibit a

rson of f ire stati on that bot

h puts outfires besetting businesses and affects local insuranc e rat es); United States v. Dupree , 323 F.3d 480, 485 (6t h Cir

. 8 Waucaush v. United States No. 03-1072

2003) (upholding federal authority to prohibit robbery of a

n

“ a rmored car mes senge

r, eng aged in

the perf ormance of his duties, inside a

department store on his regular route .... [who] had just taken possession of $130,01 4.03 in cash and checks”); Norton v. Ashc roft , 298 F.3d 547, 557 (6th Cir. 2002) (upho ldin g fede ral authority to prohibit phy sical obstruction and destruc tion of a busines s); United States v. Smith
, 182 F.3d 452, 456 (6th Cir. 1999) (upholding federal authority to prohi bit rob bery of store s that sold substantial amounts of produc

ts shipped from out-of-state). Along th ese lines, the Government argues that the CFP’s intrastate a cts of violence substantially affec ted commerce because the murder of rival gang mem

bers prevent

ed them f rom sellin

g drug s. Cf. United States v. Rodriguez , 360 F.3d 949, 95 3 (9t h Cir. 200 4) (uph olding f

ederal authority under the

Hobbs Ac t to punish “defen dants who agree d to rob co caine f rom the sta sh house of narcotics traffickers”)

. But as evidence that the victims sold narcotics, the Government

offers only a

decision from an intermediat e appella te court in I

llinois. See P eople v. Jamesson , 768 N.E.2d. 817 (Ill.App. 2001). Bousley , however, stressed that the Government’s evidenc e refut ing act ual innoc ence mus tbe admissible. Bousley , 523 U.S. at 624. An opinion’s “Facts ” sectionplainly is not. I

n an y event, the opinion which the Government

cl ass ifies as “evidence” tells us only that the Illi nois chapter of one of the CFP’s targe ted gangs “ha[ s ] been [involved] in numerous violent incidents involving narcoti cs, batterie s, agg ravate d batte ries , assaults, and
numerous ot her

criminal activities.” Jamesson , 768 N.E.2d at 821. Tha t t he Detroit-area victims belonged to a g ang whoseaffilia

tes in Illinois sold an

unkno wn qua ntit y of drugs with an unknown frequency

at an unknow

n point in time tells
us noth ing abo ut whe ther an d to wh at ex tent d rugs were sold by the Detroit g ang members targeted by the CFP.

This is a probl em, give

n the Gove

rnment’s oblig at ion to show that the CFP’s effect on commerce was sub st ant ial . In Jones , the Supre

me Court held

that, in light of the CommerceNo. 03-1072 Waucaush v. United States 9

Clause, the incineration of a private r esidence did not affect interstate commerce within the meaning of the federal arson statute. Jones , 529 U.S. at 850. Pres uma bly, the owners of the torched

home held

jobs and bo

ught inte rstate goods as pa rt of their d

ay -to-day lives, but

the Court d

eemed th es e attenuated

effects on commerce insuffici ent. Like wise, in Wang , we found tha

t no substa

ntial eff ect on int

erstate
comm erce resulted

when the

defenda nt “robbe d private
c itizens in a private residence of approximately $4,2 00, a mere $1,200 of

which be longed

to a resta urant doi ng busin ess ininterstate commerce. ” W ang , 222 F.3d at 240. See also United States v. Corp , 236 F.3d 325, 33 2 (6th Cir. 2001) (federal g overnment may not re gulate mere possession of homemade child

pornography

). Even if w e assume

that some of the people that the CFP killed were drug-dea lers, we have
no evide nce th at the y were deali ng drugs or carr ying dru g money when they we

re killed, or that the ir de aths signific antly

disrupte d the inte

rstate ma rket for drugs. It is certain ly c once ivable th at the CF P’s rivals sold sizable quantities of drugs, or

that their deaths affected the drug trade

. But on this

question, the rec ord is sile nt.
The Governm

e nt’s final argument is that, as the district court found, the CFP “eventually became associated w ith a national gang.” Neither

the Government nor

the district court fleshed out the inte

rstate c ommerce

implications of this f

act, butthe arg

ument pre suma

bl y w ould be that by associating with these national gangs, the CFP would have affe cted intersta te commerce through corr espo ndence, travel and the like. As with its bedfellows, this line of rea soni ng— as applied to this particular case, at

least—fa ils to unear

th effe cts
on interstate commerce that are more than minima

l. The only evidence of any interstate activity by

the CFP is that in 1996,
som e of i ts members talked o ver ga ng busin ess while

in Mexico Ci ty. Matched up alongside the ten-y ear period covered by t

he indict ment, this l one insta

nce of c rossing state lines is a needle in a hay stack. 10 Waucaush v. United States No. 03-1072

Indeed, most individ

uals and organizations cannot help but buy pro du cts that traveled in interstate commerce, or occasionally

talk to colleagues in, or travel to, other statesfor
some reason or

another. If we were

to label these occasional acts of interstate commerce as “subst antial,” federa l authorit y under the Commerc e Clause wo uld be vir

tually limitless. “Allowing the gov ernment to me et the interstate commerce requirement

[in a fede ral crim inal pros ecution] th

rough only
a nom in al showing of a connection to interstate commerce would do as much

to ‘comple

tely oblitera te’ the d istincti o n between natio nal and local authority a s if no jurisdictional requirement

existed at all.” United States v. Odom
, 252 F.3d 1289, 1296 (11th Cir. 2001).

At the end of the day , we are left with an enter prise who se activity was intrastate, noneconomic, and without substantial effec ts on intersta

te commerc e. The CF P’s violen t enterp rise surely affect ed inter state co mmerce i n some wa

y—a corpse cannot shop, after all. But we may not “follow the but-for causal chain fr

om the initi al occur

rence o f violent c

rime (the suppressionof

wh ic h h as al wa ys been the prime object of the St a tes’ police power) to every attenuated effect upon interst ate commerce.” Morrison , 529 U.S. a t 615. Be cause a reasonable jury

cou ld not conclude that Waucaush’s enterprise, the CFP, affected interstate commerce
, Waucaush is actually innoce

ntof violating RICO. His actual innocence
excuses his failure to challenge his plea on direct appeal, such that we may c onsider the challenge now.

B. Intelligence of the Plea

We are asked to consider t h e intelligence of Waucaush’s admission during t

he plea c olloquy

that his ac

tiv it ies “affected intersta te commerce.” According to Bousley , a plea is constitutionally unintelligent if “the re cord r e veals that neither [Waucaush], nor his counsel, nor the co urt corr

ectly understood

the esse ntial ele ments of the crime with which he
was charged.” Id

. at 618-19. Waucaush contends that altho ugh he admitte d that his c onduct “a ffecte d intersta

teNo. 03-1072 Waucaush v. United States 11

commerce,” he, along with his lawyer, the prose cutor, and the di strict court, was mistaken about the legal significa nce o f that element.
When he ple d gu il ty, Waucaush believed, a nd in fact was told b y the district court, that a pur ely intrastate a

ct of violence that had only

minimal, indirec t effects on inters tate
commerce could nonetheles s satisfy—as a matter of law—the “affect[ed] interstate commerce” element of RICO. But

as we explained above, Lopez

suggested, and Morri

son and Jones later confirmed, that this unders tan ding of the statute was legall y erron eous: the effect on commerce ca used by the CFP’s acts of violence

were, a s a

matter of law, insuf

ficientl y “substantial” to establish a violation of RICO. And because he had an incorrect understanding of the rea ch o f RICO’s requirement

that the enterpr

ise “affect interstate commerce,” Waucaush

pled guilt

y to conduct w

hich was simply not a federal crime. This type of misunderstanding—a misconceptionabout the

statute’ s l egal sc ope that r esults in the defenda

nt pleadi ng gui lty t

o conduc t whic h was not a crime—typifies an unintellig ent guilty plea

. The diss ent argu es that when Waucaush pled guilty , “he understood

that to convict him the government would be required to prove t

hat the Ca sh Flow Pos se’s a ctivities substantia lly affected interstate commerce.” (Dissent at 23) Yet the requ irement t hat a gu ilty plea be i nte lligentwould evapora te if intellig ence is defin ed only as the ab ility

to articulat e the governing legal r ule—however deprived of cont ext that rule may

be. For this reason, the Supreme Court has admonished that a guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of thelaw in relation to the fac ts .” Boykin v. Alabama , 395 U.S. 238, 243 n.5 (1969) (citations omitted) (emphasis added). I n the similar context of qualified

immunity , the Supre

me Court has explained that when measuring whether an ac tor understands the legal landscape, the formal ability to recite the

governing standard is no substitute for a mean i ngful understanding of the substance of that standard. For instance, “the rig ht to due 12 Waucaush v. United States No. 03-1072

process of lawis quite clearly e stablished by the Due Pr

ocess Clause, and thus there is a sense in w hich any ac

tion that violates that Clause (no matter how unclear it may be that the particular action is a

violation) violates a clearly established right. Much the same cou l d be said of any other constitutional or statutory violation.” Anderson v. Creighton
, 483 U.S. 635, 639 (1987). See also Asher v. Baxter Int’l Inc. ,

— F.3d — (7th Cir. July 29, 2004) (Ea ste rbrook, J.) (“The fundame ntal problem is that the statutory require ment of ‘meaning ful cautionary statemen ts’ is not itself meaningful.”). That Waucaush knew generally that RICO required a “substantial effect on interstate commerce” she d s litt le light on whether he meaningfully understood the governing law.

If there is any doubt that Wauca ush’ s plea was unintellig ent, we need

look no fur

ther tha n the histo ry

of this very case—in which

the district court affirmatively ruled that the conduct alleged (and to which Waucaush la ter admitted)
s atisfied RICO’ s “affe cting c ommerce ” eleme nt. Alth oug h the dissentcontends that there is no support in the record that the district court misinformed Wauca ush about the scope of RICO’s “affecting commerce ” e lement, the dissent’s conclusi on is at odds with much of the case’s procedural hi st or y. Waucaush

and his co -defen

dants initi all y re lied on Lopez inmoving to dismiss their indictments on the grounds that Congre ss lacked the authority to regulate their conduct under the Commer

ce Clause . The distr

ict cour t reject ed their motions, holding that Congress could inde ed r egulat e their
con duct because [the facts to which Waucaush would lat e r admit] “suffice to demonstrate an interstate commerce nexus sufficie nt to suppor

t the indictment.” I

n essenc e, Wauca

ush asked the district co urt “D oes the conduct to which I am admitting satisfy

RICO’ s ‘affe ct[ing] comme rc e’ el em en t?” and the district court answered “Yes!” Having already

once told Wau caush

that the c onduct to whichhe would be admitting would satisfy RI CO’s “affecting commerce” element, the district court then accepted Waucaush’s plea

of guil ty. In so doi ng, the district court wasNo. 03-1072 Waucaush v. United States 13

a gain required to determine that the conduct to whi c h Waucaush

was admitting had satisfied each a nd ev ery element of RICO, for “[w]hen the district court accepted [the defenda nt’s] plea, it had

a duty . . . to ensure that the plea was bothv oluntary . . . and supported by a sufficient fact ua l basis. ” In re Hanserd

, 123 F.3d 922, 927 (6th Cir. 1997) (emphas is added). See a lso F ED

. R. C RIM

. P. 11(f) (“Notwithstanding the ac ce pt an ce of a p le a o f g ui lt y, the court should not enter a judgment upon such plea without making such inquiry asshall satisfy it that there is a factual basis for the plea.”). Of course, there cann ot be a sufficient factual basis for th e plea un

less the f acts to wh

ich the de fendant

is admitting satisfy eac

h and every element of the statu te—in cludi ng, in this case, the statute’s requirement that the enterprise “affect[ed] interstate commerce .” We no w know—and

even the dissent agrees—that the facts did not satisfy this element, and that t

he distric t court wa s simply mistaken. In concluding that Wauca ush’s plea of

guilty was intellig ent, the di sse nt assumes that Waucaush had insight into the law that

exceeded even the very

district court that had convicte d him.

Nor does the dissent adequat el y answer the obvious question raised

by i ts position: If it

was so cle ar to Wauc aush that the facts to which he was admitting did not constitute a federal crime, why

did he plead guilty ? Relying on Brady v. United States , 397 U.S. 742, 757 (1970), the dissent su gges ts that Waucaush

merely misjudge d th e stre ngth of the Government’s case, and

that “[a] voluntary

plea of guilty

does notbecome vulnerable because l ater developments indic ate that the plea rested on

an insufficient

factual basis.” (Dissent
a t25 n.2) Ye

t Brady says no such thing. T here, th e defendant pled guilty to avoid facing the death penalty

, which subsequent dec isions made clear would have

been una vail abl e even if th e defendant had gone to trial. The Court held that his plea was intelligent, however, beca use althou gh he had misjudged

the potential sentence he could have rece ived if he
was convicted at trial, he did not misunderstand the substantive law underlying his offense. See Brady , 397 U.S. 14 Waucaush v. United States No. 03-1072

at 756-58. Unlike the defendant in B r ady , who misjudged only the collateral conseque nces o f his plea , Waucaush mistakenl y believe d that the

conduct t

o wh ich he was admitting satisfied each element of the statute under which he was charged.

Nor does Brady ’s language require a different result. The dissentquotes fr

om a passa ge in Brady , 397 U.S. at 757, in whichthe SupremeCourt explained that “[w]e find no requirement

in the Constitution that a de fendant must be permitted to disown his solemn admissions in open court that h e com mitted the

act with w

hich he is

charg ed simply because it later d evelops t

hat the State would have had a weaker case than the defendant thought.” Thus, if Wa ucaush had admitted i

n open co

urt that the CFP ran a c ommercial gamblingenterprise, he would not be ab le to resc ind this admission if it later turned out that the Government did not have any evidence of this. Cf. Parker v. North Carolina , 397 U.S. 790, 796-98 (1970) (rejecting a challenge to a guilty

plea basedbecause defendant’s misjudg ment abou t th e admissibil ity

of his confession

to a burglary

went only to the streng thof the factu al evidence that the g overnme nt could produce ). What would be key in this situation—the ty pe of situ ation id en ti fi ed by Brady —is that the facts to wh ic h Waucaush

admitted at

the time would have satisfied RICO’s “affecting commerce

element.”

The situation in our case is ex ac tly the opposite, and has nothing to do with the rule articu lated in Brady . Our d e terminationthat Waucuash’s plea was unintelligent turns neither on newly discover

ed evidence nor from a conclusion that the existing evidence i s no longe r credi ble. The facts to which Wau

caush ad mits now ar

e the same facts

to whichhe admitted wh en he pl ed gu il ty. As even the dissent acknowledg es , those facts alone—the only facts to which Waucaush

has ever admitted—make him actually innocent of violating RICO. The only change in Wauc aush’s understanding has come from the legal significance of those facts: his admission that his conduct violated RICO, and theNo. 03-1072 Waucaush v. United States 15

district c ourt’s a

ccepta nce of hi s plea ba sed on tha t conduct
, was simply incorrec

t as a matter of law. Thus, our case mirrors Hanserd . There, the defendant pled gu ilty to using a firearm in furtherance of a drug-trafficki

n g offense. Following the Supreme Court’s decision in Bailey v. United States , 516 U.S. 137 (1995), a decision that limited the type of conduct that

constitutes “use,” it became clear that the factual conduct to which the defen da nt admitted did not constitute a crime w

ithin the meaning of

the statut e. We held that th e d ef en da nt ’s pl ea wa s i nv ol un ta ry b ecause the subsequent

decision in Bailey“ma[de] it clear that the c ourt, counsel, and accused were all opera ting under

what we now know was a too -inclu si ve view of § 924(c)’s reach.” Hanserd
, 123 F.3d at

92 7. The same mistake infected Waucaush’s plea: j udge, counsel, and acc used wer e all operating under a too-inclusive view of RICO’s reach. Like inour case, the facts to which the defendant admitted had not
c hanged, but the defendant’s understanding of the lega l significance of those facts had. Attempting to disting

uish Bousley

and Hanserd

, the dissent argues that “in Hanserd

, a post-plea decision determined for the first time that the government would have t o provide additional proof (that

the defendant used

the gun ‘during and inrelation’ to the drug offense) to obtain a c onviction, a fact notknown to Hanserd when he pled.” (Dissent at

24-25) The dis sen t’s distinction is misplac ed along two dimens ions. First, a plea

can be unintelligent even if the law was clear a t the time: the question is not whether the lawwas clear, but whether the de f endant was aware of the law (c lear or otherwise). If a defenda

nt who stole a

pencil from Wal-Mart pled guilty to murder solely

on that basis, surely the dissent would not argue tha

t the defendant simply misjudge d the streng thof the Government’s case. Se e id

. (“The o verly broad interpretation of the scope of § 92 4(c) was as wrong before Baileyas it is now. Bailey did not change the statute’s meaning; it clarified what § 924(c) has always meant since its enactme nt. ” (emphas is added)). Indeed, Hanserd itself rested 16 Waucaush v. United States No. 03-1072

its holding on the fact that “[o]n the record before us, . . . the carry prong c annot supp ort e it her of th e [defen dant’s] convictions.” Id . According to Hanserd , “[t]hat Baileyhad yet to be decided when Hanserd ente red h is ple a ser ve[d] only to strengthen this co nclusion.” Id . (emphasis added) The court in Hanserd

thus made explici t that its hol ding wou ld have been the same even if Baileyhad been decided at t he time of the defendant’s plea; that Baileycame later was mere gr av y. Second, even if we did not mean what we held in Hanserd
, and the dissent’s old/new dicho tomy were dispositive, the dissentis incorre ct that Morrison and Jones broke no new ground

. Lopez

certainly spa

rked a new era in Commerce Clausejurisprudence, explicitly holding for the first time that the Commerce Clause extends to purel y i ntrastat e activit y only when that activity “substan tial ly a ffects” intersta te
commerc e. The Government had argued that the statute at issue
, the Gun Free School Zone Act, whic h prohibited th e possession of a firearm within 1,000 y ards of a s chool, substantia lly affected interstate co mme rce because guns carried the risk of

viole nce, whi ch might

interfe re with students’ education, which would render them less equipped for the workforce. See Lopez , 514 U.S. at 564. In reject in g that argument, the Court refused to “pile infe rence upon inference i n a mann er that would bid fair to convert cong ressi onal authority under the Commerc e Clause to a general police power of the sort

retained by the

States.” Id. at 567. Yet the hold ing o f Lopez was, at the time, constrained to its facts: it established no categorical prohibition o n the federal regu lati on of the aggreg ate commercial effects of noncommercial activity, suc h as violence. Contemporaneous scholarship c o nfirmed this limited understand ing of Lopez . Writing after Lopez but before Morrison , Professor Tri be questioned whether “future applications of Lopez

will turn entirely, or ev e n pr ed om in at el y, on decidi ng whet her a re gulate d activity

is sufficie ntly ‘commercial’ to qualify for the ‘substantialNo. 03-1072 Waucaush v. United States 17

effec ts’ test

and the aggreg ation principle. The Lopez Court did not expressly hold that only economic or commerci a l activities could be regulated by Congress whenever they meet these impact te

sts. ” 1 L AURENCE H. T RIBE , A MERI CAN C ONST ITUTION AL L AW 823 (3d ed. 2000) (emphasis added). After concluding that the holding of Lopez did not itse lf compel what we now know to be the holding of Morrison —and

the basis for our invalidation of

Waucaush’s conviction— Pr ofessor

Tribe not

ed that “

Lopez ’s larger significance must therefore remain, at least for now, a matter of spec ula tion.” Id. at 832. See also, e.g. , John Copeland Nagle, The Commerc e Clause M eets the Delhi San ds FlowerLoving Fly , 97 M ICH

. L. R EV

. 174, 176 (1998) (“Whether Lopez marks a dramatic shift in Commerc e Cla use jurisprudence or

is instead

destined to be a ‘but see’ citation remains to be seen.”).

Whatis important, of course, is not so muchthat Jones and Morriso n broke new ground, but that the new g round the y broke is the basis upon which we hold that the CFP’s conduct di d not substantially affect interstate commerce. Lop ezdi d nothold thatall noneconomic intrastate activity was beyond the pale of

the Commer

ce Clause , nor did it

hold cate gorica

lly that purely intrastate violence was off-limits to regulation by the federal government. Rather , the statute invalidated by Lopez was unsus tainable

because it regulated the possession of a device that might

lead to violence, in a

setting where that violence might

interfere with learning, with the result that dimini shed learni ng might —at some point well into the f uture —inhibit

interstate commerce. Before Jones and Mo rris on , such a spe culative chain of causati on was ea sily distingu ishable from the facts in

our case, in which the defenda nts were alleged actually to have murdered seve ral ind ividualson the city streets (a nd thereby pr

eventing th e victims from w orkin g, shop ping, or doi ng anythin g el se commercial).

It w as Jones and Morrison that definitively preve nted Congre ss from regulating the CFP’s conduct. I n Jones , 529 18 Waucaush v. United States No. 03-1072

U.S. at 857, the Supreme Court held t hat in li ght of the C ommerce Clause, the feder al arson statute c ould not b e construed to encompass the arson of a p rivate, nonco mmercial dwell ing. Becau se losin g one’s house has obvious commercial effects, the refusal to distinguish Lopez on that basis i ndica ted that Lopez would be r

ead broa dly . Prior to Jones , this was by no meansassur ed, as evidenced by the contrary hol ding of the unanimous lower court decision which Jones reversed. See United States v. Jones , 178 F.3d 479, 480 (7th Cir. 1999) (Easterbrook, J.) (“ Lopez sa ys that the power of Congre ss is limited to activities that substantially affect commerce, while proof of a s ma ll effect will satisfy the statute.” (internal citation omitted)). And in Morrison , th e Courtheld that

Congress lacked authority to provide a federal
cause of action to victims of

gender-motivated violence. The
e vidence in Morrison indicated that the economic impact of actual gender-motivated violence was fa r more direct and apparent than that of mere possession of a weapon near a school. That the former did not “substantially affect intersta te
comm erc e” reveal ed aga in that Lopez

could not be constra ined to its f

acts.

Most importantly, Morr ison debuted t he cate gorica

l rule that directly controls the case before us: “We ac cordingly reject the arg ument tha t Congre ss may reg

ulate noneconomic, violent, criminal conduct based sol ely on that conduct’s aggr egate effect on interstate commerce.” Morrison , 529 U.S. at 617. See also id. at 656 (Brey er, J., dissenting) (“The majority holds thatthe federal commerce power doe s not extendto such non economic activities as noneconomic, violentcrimi nal co nduct that s ign ific antly affec ts interst

ate
commerce only

if we agg reg ate t he in ters tate effe ct[s] o f ind ividual instances.” (internal quotations omitted)); Jul i e Goldschei d, Unit ed States v. Morrison and the Civ il Rights Remedy of the Violence Against Women Act: A Civil Rights Law Struck

Down in the

Name of Fe

deralism , 86 C ORNELL L. R EV

. 109, 111 (2000) (“[

Morrison ] establish ed that Con gress cannot enact laws under the Commerc e Cl ause tha t regul ate noneconomic, violent criminal c onduct b ased o nly on theNo. 03-1072 Waucaush v. United States 19

con duct’s aggrega

te effect on interstate commerce.” )

. Morrison built on Lopez , but also e xpanded it.

F or this reas on, the dis sent’s ob servation that Morri so n “relied on” Lopez , (dis sent at 23) is irrelevant to whether Waucaush

meanin gf

ully understood the substance of the charges against him. As commentators recognized following its release, “[

Lopez ] d id not say

absolute ly that only commercial activities can be reached by the ‘affects’ branch of Congress’s ‘commerce authority ’ . . . . It only indicated that it would be

harder to so reach it. But

how much harder? Whatmore would be ne cessary before the Court will allow Congre ss to reach an activity , not itself commercial, but whichaffects interstate com merce ?” Lawr ence Less ig, Tr anslating

Federalism: United States v. Lopez, 1995 S U P

. C T

. R EV

. 125, 203 (1995). See also, e.g. , Larry Kramer, The Supreme Court, 20 00 Term—Forw ard: W e the Cour

t , 115 H ARV

. L. R EV

. 4, 141 (2 001) (“ [In Lopez , t]he Justices had notyet clarif

ied how they planne d

to de te rm in e s ub st an ti al it y, other than to suggest what looked like a principle of proximate

causation[.]”); Charles Fried, The Supreme Court, 1995 Term—Forward: Revoluti ons? , 109 H ARV

. L. R EV

. 13, 41 (1995) (“The projectivepower of the pr

eceden t will depend on how Lopez 's conc lusion tha t the statu te 's relation to commerce was no t substantial will be understood and applied.”). Morris on a ddressed these questions—which went to t he heart

of the charges

agains t Waucaush—for the first time.

Ac co rd in gl y, and

most importantly, the district court’s own conduct in this cas e confir

ms that Morrison and Jones added to the und erstand

ing of th e Commerc e Clause t hat Lopez initially set forth. Priorto Morrison and Jones , the district court refuse d to dismiss the

charg es aga

inst Wauca

ush and his co-def endantson the basis of Lopez alone. A fte r Morri

son and Jones were decided, the district court granted a rehearing to one of Waucaush’s codef endant s who had not yet bee n sen ten ced. The district court then ruled that “the recent Supreme Courtauth ority

[( Morrison and Jones )] relied upon 20 Waucaush v. United States No. 03-1072

by [Garcia] compels the conclu sion th at this Court lacks jurisdiction to decide the R ICO cha rges brought by

the Go vernment

in this cas e” and f

urther noted that

those ca se s “place[d] limitations on the reach of federal jurisdiction over non-economic crimes.”

Fi na ll y, to prohibi

t Waucaush from t aking advantage of Morrison and Jones would ignore the reason that the Supreme Courthas app lie d retroactively decisions that narrow the substantive scope of

criminal statutes: to do otherw

ise would “produce a class of

persons convicted of

conduct the law does notmake criminal.” Schriro v . Summer lin , 124 S. Ct. 2519 , 2523 (2004). Because Waucaush’s misunderstanding of the law led him to plead guilty to conduct which the law had not made a crime, his pl e a was unintelligent and his conviction cannot stand.

III. CONCL USION

The district c ourt’s judgment is therefore REV ERSED , and the case is REMANDED

to the district court for entry of an order granting Waucaush’s pe tition.No. 03-1072 Waucaush v. United States 21

1 In Bousley, the Supreme Co urt elaborated the parameters governing a colla teral att ack on the int elli gence of a guil ty pl ea:
[Petit ioner contends] that nei ther he, nor hi s counsel, nor the court correctly under stood the esse ntial elements of th e cr ime with which he was c harg ed. We re this cont ention proven, peti ti oner’ s pl ea woul d be . . . con sti tut ional ly inv ali d.

Our decisions in Bra dy v. Un it ed States
, McM ann v. Richards on and Parker v . Nort h Carolina

. . . are not to the

con trary. Each of those cases inv olved a criminal defendant who plead ed gu ilty after be ing co rrectly info rmed as to the es senti al

______________ DISSENT

______________ W IL LI AM W SCHWARZER, S enior United States District Judge, dissenting. I respectfully dissent. While I agree that Waucaush

can overcome the procedural

bar to his claim, I am unable to agre e with the

majority ’s concl

usio n that his plea
was constitutional ly unintellig ent. W aucaush, his counsel and the dis trict co urt were aware of United States v. Lopez , 514 U.S

. 549 (1995 ), which established the ba sic Comm erc e Clausejurisprudence under which this

court ha s continuo

usly operated. Waucaush

thus pled guilty under a

jurisprudential regime that remains unchanged

to da y, and he cannot be found t o have misunderstood the essential elements of the c rim e with which he was charged.

As th e majorit

y op inion cor

rectly points out, “a plea

is constituti onally

unintellig ent if

‘. . . neither [Waucaush], nor his counsel, nor the court correctly understood the es se ntial elemen ts of the crime with which he was charged.’” Slip op. at 10 (c i ting Bousley v. United States , 523 U.S. 614, 618-19 (1998)) (emphas is added) ; see also I n re Hanse

rd
, 123 F.3d 922, 92 6 ( 6t h C ir . 1 99 7) (“ [A ] g ui lt y p lea is involuntary where the defendant lacks knowledge of one of the elements required for conviction.”). 1 Thus, the critical que sti on in 22 Waucaush v. United States No. 03-1072

n ature of the charge ag ainst him. Tho se defend ants l ate r atte mpted to cha llenge the ir guilty ple as w hen it beca me evident that they had misjudged the s trength of the Go vernmen t’s case

. . . . For

exampl e, Brady , who pleade d gui lty t o k idn aping, maintained tha t his p lea was neither voluntary nor i ntelli gent because it

was i nduced by

a deat h pe nalt y pro vision la ter held

unco nstitutiona l. We rejected Brad y’s voluntariness argum ent, explaining that a “p le a of g uil ty ent ered by one f ull y awa re of the direct conseq uences” of the plea is vol untary i n a
con stitutional se nse . . . . W e further he ld that Brady’s pl ea was intell igent because, although lat er judi cial decisi ons indi cated that at t he ti me of his plea he “ did not co rrect ly as sess every relevant fac tor e nter ing int o his deci sion ,” .

. . he was advi sed by competent counsel, was in cont r ol of his mental faculti es, and “was m ade aware of the na ture of the charg e aga inst him.”

523 U .S. at 618-19 (citat ions omitted). determining whether

Waucaush ’s plea w as uninte lligent i s whether he “corr ec tly understood the essential ele ments” of the RICO charg e.
The majo r ity asserts that “Wauca ush believed, and in fact
was told by

the distri ct court , th at a purel y intrastate ac t of violence that had

only minimal, indirect e ffects on intersta te
commerce could nonetheles s satisfy—as a matter of law—the ‘affect[ed] interstate commerce’ element of RICO.” Slip op. at 11. Ther e is no supp ort in

the rec ord for t

his assertion. To t he contrary , prior to entering his plea, Waucaush joine d i n his codefendant Rodriguez’s mot i on to dismiss the indictmen t. J.A. at 141 . The m otio n argued , citi ng L ope z , that the g overnme

nt was re quired to

prove that

the activities of the alleged RICO e

nterprise “sub s tantially affe cted” int ers tate commerce, but that “[e]ven accepting the government’s other al legati ons a s tru e, it can not possibl

y e stablis h that the activities of the alleged enterprise, e ven aggrega ted, affected interstate commerce in even the smalle st way .” J.A. at 132- 34. And the district c ourt advi se d Waucaush

at the plea colloquy that a

ttrial “[t]he governmentNo. 03-1072 Waucaush v. United States 23

would . . . have to prove tha

t the Cash Flow Posse was engaged in and its activities affe cted interstate commerce.” Thus, when Waucaush pled guilt y he understo od that to convict him the government

would be required to prove that the Ca sh Fl ow Posse’s activities substantially affe cted intersta te commerce. He alsoknew that the Lopez Court had announced

the principl e that

Congressional regulation of noneconomic ac ti vi ty c anno t be upheld on the theory tha t the activi ty, “viewe d in the ag greg ate, subs tantially

affec ts intersta te commerce.” Lopez , 514 U.S. a t 5 61. Lopez therefore infor med hi m that , becau se the RICO cha rge involved non-economic ac tivity

by the Cash Flow Posse, the government

would not be perm itted to employ the aggr egation theory

to prove a

substantia

l effect.

Cases decided

after Wa

ucaush’ s plea did

nothing t

o u ndermin e or add to t

hese re quireme

nts. The Su

preme Court’s decisions in United States v. Morrison , 529 U.S. 598 (2000), and Jones v. United States , 529 U.S. 84 8 (2 000), on whichthe major

ity r ests its ar gument, simply applied and elaborated the principle of Lopez . In Morrison , the Court struck down 42 U.S.C. § 13981 as beingbeyond Congress’s Commerce Clause power. It found the ca se to be “controlled by [the] decision[] in Lopez ,” 529 U.S. at 602 , stat ing: “Since Lopez most recently ca

nvassed and clarified our case law governing this third c ategor

y of Commerce

Clauseregulation [relating to those activities that substantia

lly a ffect in terstate
comme rce] , it provides the proper framework for conducting the require d analy

sis of §139 81.” Id . at 609. The Court observed that—as with the statute at issue in Lopez

—§ 13981 regulated noneconomic criminal conduc t and contained no express jurisdictional statement. Id . at 613. The Courtrelied
on Lopez in rejecting the argument that a substantial e ffect on intersta te commerce may

be shown by tally

ing the agg

regat e effec ts of noneconomic activities. Id . at 615-17. Thus, in Morrison the Co urt mere ly a pplied the

Commerce

Clause analysis it had alrea

dy set forth in Lopez

. 24 Waucaush v. United States No. 03-1072

The Jones Court similarly rested its analy sis on Lopez . The Courtrejecte d a constr

uction of a feder al a rson statute that would allow pro se cu ti on of

ar so ni st s w ho bu rn pr iv at el yowned buildings that

have n o direct

connec tion to inte

rstate commerce, holding that, “[g]iven the concerns brought to the fore in Lopez , it is appropriate to avoid the constitutional question.” 529 U.S. at

857-58. T

he Court f ound that a

broad constructionof the statute would run afoul of Lopez ’s holding be cause it would al low untra mmeled Con

gressi o na l regulation of noneconomic criminal conduct. Id . at 858. Thus, at the time of Waucaush’s plea, t he law was established—and

kn own to him—that

to be subje ct to regulation, an activity m

ust “sub stant ially affe ct[]” intersta te
commerce. Lopez , 514 U.S. at 559. Nothing in Morrison or Jones changed that standard.

The maj ority’s relianc e on Hanserd , slip op. at 13, 15-16, is symptomatic of the err

or that underlies its analysis. There
, the defend ant ha d pled guilt y to a charge of using a f irearm i n a drug trafficking offe

nse in violation of

18 U.S.C. § 924(c). 123 F .3d at 924. After Hanserd’s plea, the Supreme Court decided Bailey

v. United States
, 516 U.S. 137 (1995), holding that “[t]o sustain a conviction under the ‘ use ’ prong of § 924(c)(1), the Govern

m ent must prove that the defendant active ly employed the fire arm during and in relation to the predicate crime.” Id . at 150. Hanserd had not been charged with any substantive drug

offense . This court found that, as
a consequence of the intervening decision in Bailey
, Hanserd “lac k[ed] knowledge of one of the elements re quired for conviction” at the time of his plea, and because his “plea was notmade with an adequate understanding of the law, it was not voluntary.” Hanserd

, 123 F.3d at 926-27.

Th e obvious distinction between Hanserd and the instan t
caseis that in Hanserd

, a post-plea dec ision determined for t h e first time that the government would have to provide additional proof

(that the defendant used

the gun “during and inrelation” to the drug offense) to obtain a c onviction, a factNo. 03-1072 Waucaush v. United States 25

2 The majority

confus es the iss ue when i t argu es tha t the court had a duty to ensure tha t th e plea was both volu ntary an d supp orted by a suffi cient fac tual

basi s. Sli p op. at 12 -14. A volunt ary pl ea of gui lty does not beco me vulnera ble beca use lat er developments indic ate t hat t he plea

res ted on an insufficient fac tual ba sis. Brady v. United St ates , 397 U.S

. 742, 7 57 ( 197 0) (“W e find no requ ireme nt in the C onstitutio n th at a defendant must be per mitt ed to dis own his solemn admis sions in open court that he com mitted the act w ith which he is cha rged simply because it late r dev elop s that the S tate wo uld ha ve had a wea ker ca se th an th e defendant had th ough t.”); see als o United States v. Turner , 272 F. 3d 380, 389 -9 0 (6th Cir. 200 1) (stating that a guilty plea waives a l l nonj urisdic tional d efense s to an ind ictmen t, and holding that “t he fail ure of th e gov ern ment

to p rove a ne xus bet weenth e cr ime and interstate

commerce is not juri sdict ional in a s ense that i t depri ves the distr ict court of subject matter jur isdicti on”). Thus, even if t he facts proff

ered by the government in s upport of t he pl e a were insufficient to sustain a v erdic t, that does not render the plea subject to collateralattack. notknown to Hanserd when he pled. In this case, by c ontrast, Waucaush

knew all of t

he elem ents of the crime, and no subsequent

casechanged the proofs necessa ry for conviction. Thus, the record does not show t hat Waucaush was “misinformed

as to the true

nature o f the cha

rge against

him.” Bousley , 523 U.S. at 619. 2

Insum, this is simply not a case of a defe ndant’s “misunderstandingof the la w” as i t stood at the time of the plea. Slip op. at 19. Nor is it a ca se of a s ubseq uent c hange of the law rendering the

prior conviction

one “for conduct that
was notillegal.” Hanserd
, 123 F.3d at 924. I would theref ore affirm t he judg ment.