United States v. Perez-Perez

992 F.3d 970

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 29, 2021
• Docket: 19-2154
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 29, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-2154

ABIEL PEREZ-PEREZ,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-CR-03241-JCH-1) _________________________________

Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Tiffany Walters, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges. _________________________________

EBEL, Circuit Judge. _________________________________

Defendant-Appellant Abiel Perez-Perez (referred to by the parties and here as

Perez) pled guilty to being an alien in possession of a firearm in violation of

18 U.S.C. § 922(g)(5). On appeal, he challenges the district court’s failure to advise

him of two elements of that offense: (1) the alien is illegally or unlawfully present in the United States; and (2) the alien knows that he is illegally or unlawfully present.

Perez failed to raise this issue below and this Court thus reviews for plain error. The

government concedes that the omission of these elements constitutes error that is now

plain on appeal. The only dispute is whether Perez satisfied the third and fourth

prongs of plain-error review.

We conclude that Perez cannot satisfy the third prong because he cannot show

that the error affected his substantial rights. Although Perez has a credible claim

that, at the time of the offense, he did not know he was unlawfully present in the

United States, he has failed to show a reasonable probability that he would not have

pled guilty but for the district court’s error. This is because the context of Perez’s

guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences

attached to charges the government dismissed in exchange for the guilty plea. Perez

fails to show how the district court’s error impacted that choice, and he thus fails to

satisfy the third plain-error prong. Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we affirm his conviction.

I. BACKGROUND

Perez’s Immigration Status

Perez was born in Mexico. His family was very poor and struggled with

homelessness. Perez has only a sixth-grade education, can barely read, and can

barely write his own name. He does not speak English. He has worked as a painter

and a blacksmith. In 2009, when he was thirty-three years old, Perez unlawfully

entered the United States in the hope of obtaining better employment.

2 Since then, Perez has remained in the United States as an undocumented alien,

working “under the table.” R., Vol. 3 at 74. In 2011, Perez married a U.S. citizen,

but he did not take any immediate steps to obtain lawful residency status based on

that marriage. In 2012, Immigration and Customs Enforcement charged Perez with

illegal entry, but no criminal charges were filed.

In 2016, Perez was placed in removal proceedings in immigration court.

Perez’s wife and her family bonded him out and he then began the process of

adjusting his residency status to lawful based on his marriage to a U.S. citizen. In

February 2017, Perez’s bond money was returned. Perez was not removed. There is

no evidence that Perez ever completed the process to achieve lawful status based on

his marriage or ever obtained any lawful status.

Drug Investigation and Arrest

In August 2017, the Drug Enforcement Agency (DEA) began investigating

Perez for heroin distribution. The DEA determined that Perez was operating a drug-

trafficking organization, aided by two associates. The investigation culminated in

raids on Perez’s stash house, where agents located 187 grams of heroin, and Perez’s

residence, where agents found 15 firearms, including high-capacity firearms, and

ammunition.

3 District Court Proceedings

A federal grand jury indicted Perez, charging him with distribution of at least

100 grams of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(B), and with conspiracy

to do so under 21 U.S.C. § 846. Each charge carried a five-year mandatory

minimum. Perez was not initially charged with any firearms-related offenses.

Eighteen months later, the parties reached a plea agreement. Perez agreed to

plead guilty to an information charging him with (1) distributing an unspecified

quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2; and

(2) “being an alien, who was illegally and unlawfully in the United States,” in

possession of a firearm in violation of 18 U.S.C. § 922(g)(5). R., Vol. 1 at 135–37.

Neither charge carried a mandatory minimum sentence. In exchange, the government

agreed to dismiss the charges in the original indictment.

Perez’s plea agreement erroneously described the elements of his firearms

offense as (1) “the defendant knowingly possessed a firearm”; (2) “the defendant was

an alien at the time he possessed the firearm”; and (3) the firearm moved in interstate

commerce. Id. at 143. It did not inform Perez of the element requiring that the alien

be “illegally or unlawfully in the United States.” See 18 U.S.C. § 922(g)(5). Perez

acknowledged he was an alien but did not admit he was in the country unlawfully.

He did, however, consent to removal following the completion of his sentence.

At his plea hearing, Perez confirmed that he had read and understood the

charges in his information and that his attorney had read him the elements of the

4 offenses. However, Perez was never informed that some non-citizens are allowed to

possess firearms and that illegal or unlawful status was an element of § 922(g)(5).

Additionally, when Perez pled guilty to that offense, the government only had

to establish the elements of (1) status as an alien illegally or unlawfully present in the

United States, and (2) knowing possession of a firearm that traveled in interstate

commerce. See United States v. Games-Perez, 667 F.3d 1136, 1140 (10th Cir. 2012)

(rejecting that a defendant must knowingly possess the prohibited status at the time

of the offense). Thus, the government did not have to prove Perez knew his

prohibited status. Accordingly, Perez’s guilty plea did not include any mention of

proof of his knowledge of his prohibited status.

After Perez pled guilty but before he was sentenced, the Supreme Court

decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s

knowledge of his prohibited status is a required element the government must prove

under § 922(g). Id. at 2194. Thus, the government had to prove that Perez knew he

was illegally or unlawfully in the United States at the time of the offense. Perez was

never informed of this element.

At sentencing, Perez’s offense level was based primarily on the drug charge,

but an additional offense level was added because of the firearms offense under the

guidelines rules regarding grouping and multiple count adjustments. This resulted in

an advisory guidelines range of 78 to 97 months in prison. Perez argued for a

downward variance and a below-guidelines sentence of 37 months, but the district

court sentenced him to 78 months on each count to run concurrently. This appeal

5 followed. On appeal, Perez argues that the district court erred by failing to inform

him of two elements of the § 922(g)(5) offense before accepting his guilty plea.

Accordingly, he asks this Court to vacate his guilty plea to that offense.1

II. STANDARD OF REVIEW

Because Perez did not raise this argument below, we review for plain error.

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc).

Under plain-error review, “the defendant must establish that (1) the district court

committed error; (2) the error was plain—that is, it was obvious under current

well-settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Dalton, 918 F.3d 1117, 1129–30 (10th Cir. 2019)

(quoting United States v. Chavez-Morales, 894 F.3d 1206, 1214 (10th Cir. 2018)).

This Court applies plain-error review “less rigidly” when reviewing a potential

constitutional error. Id. at 1130 (quoting United States v. Weeks, 653 F.3d 1188,

1198 (10th Cir. 2011)).

Here, the government concedes that Perez has satisfied the first two plain-error

prongs by establishing that the district court committed an error that became “clear or

obvious at the time of the appeal.” Gonzalez-Huerta, 403 F.3d at 732. Thus, the

issue is whether Perez has met the third and fourth plain-error prongs.

1 Perez does not challenge the validity of his drug-distribution conviction. 6 To satisfy the third prong, Perez “must show a reasonable probability that, but

for the error, he would not have entered the plea.” United States v. Trujillo, 960 F.3d

1196, 1208 (10th Cir. 2020).2 This is a lesser standard than proof by a preponderance

of the evidence, and it is satisfied by “a probability sufficient to undermine

confidence in the outcome.” United States v. Bustamante-Conchas, 850 F.3d 1130,

1138 (10th Cir. 2017) (en banc) (quoting United States v. Hasan, 526 F.3d 653, 665

(10th Cir. 2008)). If Perez fails to satisfy the third plain-error prong, the Court need

not reach the fourth prong. Trujillo, 960 F.3d at 1208.

III. DISCUSSION

Perez asserts that his guilty plea is constitutionally invalid because he was not

informed of two elements of the firearms offense: (1) that the defendant alien is

illegally or unlawfully present in the United States; and (2) that the defendant knew

of his unlawful status. A guilty plea must be voluntary and intelligent, which

requires that the defendant receive “real notice of the true nature of the charge

against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v.

O’Grady, 312 U.S. 329, 334 (1941)). This requires notice of the elements of the

crime charged. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th Cir. 2008).

2 Perez filed his opening brief the day before this Court issued Trujillo. In his brief, he argued for a different standard, under which the third prong is satisfied by a Rehaif error unless “the defendant was made aware of the missing elements through other means, or if the record contains an admission that would satisfy the elements.” Aplt. Br. 12. In his reply brief, Perez conceded that this argument is foreclosed by Trujillo. 7 Accordingly, the district court plainly erred by accepting Perez’s guilty plea

despite Perez not being informed of two elements of § 922(g)(5). Yet Perez agreed

to plead guilty to that charge (and the unspecified-quantity heroin-distribution

charge) in exchange for the dismissal of charges that carried five-year mandatory

minimums. Perez hoped that his plea to the substitute charges would result in a

sentence below that five-year threshold. It did not. So Perez now tries to get out

from his plea agreement by arguing Rehaif error. But the Rehaif error has no impact

on the reason Perez took the plea deal, so he cannot show a reasonable probability

that, but for the error, he would not have pleaded guilty. For that reason, as

explained in more detail below, the Court concludes that Perez fails to satisfy

plain-error review.

In reaching that conclusion, we first consider Perez’s argument that he has a

credible claim that he was not aware, at the time of his offense, that he was

unlawfully present in the United States or that he could not lawfully possess a

firearm. Accepting that argument, we then turn to whether it establishes a reasonable

probability that, but for the district court’s error, Perez would not have pled guilty.

And that is where Perez’s argument fails.

A. Perez has a credible claim that, at the time of his offense, he was not aware that he was unlawfully present in the United States.

In the uninformed-guilty-plea context, a defendant might be able to satisfy the

third prong of plain-error review by establishing a plausible defense based on an

erroneously omitted element. See United States v. Dominguez Benitez, 542 U.S. 74,

8 85 (2004); Trujillo, 960 F.3d at 1208. For a defendant claiming a Rehaif error, such

a plausible defense may be based on a claim of ignorance of the prohibited status.

See United States v. Fisher, 796 F. App’x 504, 510 (10th Cir. 2019) (unpublished).

Here, we believe that Perez has a colorable argument that, at the time of the

offense, he was not aware that he was unlawfully present in the United States. The

record provides ample support for this potential defense: (1) Perez had been in the

United States for at least seven years at the time of his offense; (2) Perez was married

to a U.S. citizen; (3) Perez’s U.S. citizen wife had initiated the process for him to

adjust his residency status to lawful based on their marriage; (4) Perez’s 2017 bond

money was returned to him and the removal proceedings concluded, apparently,

without him being removed;3 and (5) Perez was illiterate, unsophisticated, and

unfamiliar with the complexities of immigration law.

In light of these facts, Perez may well not have known at the time of the

offense that he was unlawfully present in the United States. Although it is

undisputed that Perez never had lawful status, he could have believed that he had

some sort of lawful status in 2017 based on the above facts—or at least he could have

credibly argued to a jury that he so believed.

These circumstances are sufficient to support a plausible defense, and Perez

need not assert now on appeal that at the time of the offense he actually believed he

had lawful status. Our determination is not based on “post hoc assertions from a

3 The record does not explain why the bail money was returned or how the removal proceedings concluded. 9 defendant about how he would have pleaded,” but on “contemporaneous evidence to

substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct.

1958, 1967 (2017); see also United States v. Kennedy, 225 F.3d 1187, 1191 (10th

Cir. 2000) (“This court will not consider material outside the record before the

district court.”). Moreover, Perez does not need to assert or prove his actual

innocence. Trujillo, 960 F.3d at 1201. Even if Perez was actually guilty of the

omitted elements, he could still potentially satisfy the third plain-error prong by

showing that the government would have had a difficult time proving his guilt.

See id. at 1207–08.

Perez has made that showing, and the government’s arguments fail to establish

otherwise. The government merely reiterates that whatever Perez’s efforts to adjust

his status to lawful, there is no evidence that he completed the process and he never

obtained a green card or other documentation of lawful status. This is true, but it

only proves that Perez never had lawful status, not that he never thought he had

lawful status. The government does not have any direct evidence to contradict

Perez’s claims, and it could not force him to testify. There is simply no evidence that

Perez knew the government could prove its case against him absent his cooperation

and an admission that he knew, at the time of the offense, of his prohibited status.

Under similar circumstances, our sister circuits have found the third

plain-error prong satisfied. See United States v. Jawher, 950 F.3d 576, 580–81 (8th

Cir. 2020); United States v. Russell, 957 F.3d 1249, 1253–54 (11th Cir. 2020);

United States v. Balde, 943 F.3d 73, 97–98 (2d Cir. 2019). In each case, the court

10 found the third plain-error prong satisfied where the defendant had a credible claim

that he thought he had lawful status, or, “[a]t the very least, . . . reasonable grounds

on which to contest his knowledge of his prohibited status to a jury.” Jawher,

950 F.3d at 580. Here too, Perez at least has reasonable grounds to contest this

element to a jury.

The government fails to distinguish those cases. It attempts to do so by

pointing out that each defendant had argued below that he had legal status, whereas

Perez did not. But here, unlike those cases, Perez was told that he was guilty merely

for being an alien in possession of a firearm, regardless of whether he was in the

United States lawfully or unlawfully. Thus, Perez had no reason to argue about his

status, because he could not dispute that he was an alien.

That Perez has a colorable argument to satisfy the third prong is further

supported by comparison to the Rehaif-fix cases the government cites in which courts

found this prong not satisfied. Those courts relied on overwhelming evidence of

guilt for the omitted element. For example, in Trujillo, a felon-in-possession case,

this Court found that the defendant could not “credibly claim he was unaware that he

was a felon” where he had been previously convicted of six felonies and sentenced to

twenty-four years in prison. 960 F.3d at 1208. Similarly, in United States v. Puri,

797 F. App’x 859 (5th Cir. 2020) (unpublished), an alien-in-possession case, the

defendant admitted that at the time of the offense he believed that he was unlawfully

present. Id. at 864.

11 Perez has admitted no such knowledge at the time of the offense and he has a

credible claim that he lacked that knowledge. The government could gather further

evidence and argue against Perez’s claim at trial, and a jury might well reject it, but

“we cannot conclude on the present record that the government’s arguments are so

strong that [Perez] would have had no plausible defense at trial and no choice but to

plead guilty.” Balde, 943 F.3d at 97.

We reject each of the government’s arguments to the contrary, but we consider

two of note.4 The first addresses the district court’s failure to inform Perez that only

unlawfully present aliens, not all aliens, are prohibited from possessing firearms.

The government argues that this error was non-prejudicial because Perez received

actual notice of that element from the information, which included the factual

allegation that Perez was “an alien, who was illegally and unlawfully in the United

States.” R., Vol. 1 at 135. That allegation was the only mention of that element in

the record.

The government cites United States v. Ferrel, 603 F.3d 758 (10th Cir. 2010),

as support for its notice theory. But in Ferrel, this Court found no effect on

substantial rights where an omitted element was (1) alleged in the indictment,

(2) repeated in the plea agreement, (3) repeated in the defendant’s plea statement, and

(4) discussed by the defendant with his attorney. Id. at 763–64. All that is

4 In addition to these two arguments, which were raised in the government’s brief, at oral argument the government alluded to other offenses with which it could have charged Perez. Those hypothetical charges are not supported by the record and we do not consider them. 12 significantly more substantial evidence of actual notice than exists here, where

claimed notice is based solely on a factual allegation in the information.

In further contrast with Ferrel, the pertinent element here was not just omitted,

it was affirmatively misrepresented. Perez’s plea agreement described the element as

“the defendant was an alien at the time he possessed the firearm.” R., Vol. 1 at 143.

This inaccurate description of the element nullifies any notice provided by the factual

allegation in the information. For these reasons, we reject the government’s

argument that Perez cannot satisfy the third prong because the information gave him

actual notice of this element.5

The government’s second argument is based on its assertion that Perez

admitted below to being an unlawfully present alien. The government sees that

“admission” in (1) Perez’s failure to object to the PSR’s listing of his immigration

status as “illegal alien” and (2) various statements by Perez acknowledging that he is

undocumented and worked “under the table.” Aple. Br. 7, 12. The government

argues that this admission and Perez’s failure to raise any claim as to his lawful

status indicates that he knew all along he was illegal. But as mentioned above,

because Perez was told that the offense applied to all aliens, he never had reason to

argue that he had lawful status or that he thought he did.

5 Even if the factual allegation in the information had provided actual notice, that would only apply to the error for the omitted element “an alien unlawfully or illegally present in the United States,” not the omitted knowledge-of-status element. Thus, this argument would not be fatal to Perez’s claim in any event. 13 In addition, Perez’s “admissions” at the time of sentencing in 2019 are of

questionable significance as to his knowledge of his status at the time of the offense

in 2017. Perez admits that he now knows that he is unlawfully present and even

concedes that it is “very likely” he was unlawfully present at the time of the offense.

Aplt. Reply Br. 5–6. But that does not mean that at the time of the offense he knew

he was unlawfully present, and that is what the government would have had to prove.

In summary, we conclude that Perez has established a plausible defense to the

§ 922(g)(5) offense, because he has a credible claim that, at the time of the offense,

he was not aware that he was unlawfully present in the United States. We next

consider whether that plausible defense is sufficient to establish a reasonable

probability that, but for the district court’s error, he would not have pled guilty.

B. Despite his plausible defense, Perez has not established a reasonable probability that, but for the district court’s error, he would not have pled guilty.

In some Rehaif-fix cases, establishing a plausible defense based on the omitted

element might be sufficient to show that the error affected the defendant’s substantial

rights. But in light of the particular circumstances of Perez’s plea agreement, his

plausible-defense argument is not sufficient to make such a showing here.

We first consider the context of Perez’s plea agreement. In one sort of

plea-deal case, a defendant is charged with a particular offense and accepts a plea

deal because he thinks he has no defense to that charge and he hopes to receive some

sort of consideration for his plea, such as a reduced sentence. See, e.g., United States

v. Sanchez, 983 F.3d 1151, 1157 (10th Cir. 2020) (describing a defendant claiming

14 Rehaif error after pleading guilty to being a felon in possession of a firearm after his

motion to suppress evidence was denied); see also U.S.S.G. § 3E1.1(a) (decreasing

the offense level for a defendant who “clearly demonstrates acceptance of

responsibility for his offense”). In such a case, we may presume that a plausible

defense based on an erroneously omitted element is enough to satisfy the third

plain-error prong. See Trujillo, 960 F.3d at 1207. But this is not that sort of case.

Here, Perez was not initially indicted for the firearms offense, he was indicted

for (1) distribution of at least 100 grams of heroin under 21 U.S.C. § 841(a)(1) and

(b)(1)(B); and (2) conspiracy to distribute at least 100 grams of heroin under

21 U.S.C. § 846. Those charges each carry a five-year mandatory minimum. In

exchange for the dismissal of those charges, Perez agreed to plead to an information

charging him with (1) the § 922(g)(5) firearms offense; and (2) distributing an

unspecified quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Both of

those charges lacked mandatory minimum sentences.

In light of those facts, we review what the plea agreement did for Perez and

what it did not do, and how those considerations speak to Perez’s motivations for

accepting the agreement. To start, the plea deal replaced the quantity-specific

distribution and conspiracy drug charges with an unspecified-quantity distribution

charge. This reveals two things: First, that Perez’s motivation could not have been

avoiding a drug charge, because the plea deal retained such a charge. Second, that

the new drug charge was uniquely tailored to Perez’s needs in that it omitted a

specific quantity of drugs. Although an unspecified-quantity charge is not unheard

15 of, we think it uncommon. Such a charge does not implicate mandatory minimum

sentences. The unusualness of not having a specified quantity suggests that the new

charge was tailored to Perez’s desire to avoid mandatory minimums.

In addition to modifying the drug charges, the plea agreement added a new

charge: the firearms offense under § 922(g)(5). Under the Sentencing Guidelines,

that offense did not group with the unspecified-quantity drug charge, resulting in a

multiple count adjustment increasing Perez’s base offense level by one level. In

contrast, the original drug charges in the indictment would have grouped, resulting in

no adjustment for multiple counts. See U.S.S.G. § 3D1.2. The additional offense

level resulting from the non-grouping charges translated to an increase in the overall

advisory guidelines range, from 70 to 87 months to 78 to 97 months. Thus, accepting

the plea agreement resulted in a higher guidelines range than would have pleading to

the original charges.

In sum, the plea agreement (1) did not allow Perez to avoid a drug charge,

(2) added the new charge under § 922(g)(5), and (3) increased Perez’s guidelines

range by 8 to 10 months. It did, however, confer one significant benefit upon Perez

by allowing him to avoid any mandatory minimum sentence. Because the charges

implicating mandatory minimums were dismissed, Perez was able to argue for a

below-guideline sentence of 37 months, well below both the 78-to-97-month advisory

range he faced on the plea agreement charges and the five-year minimum he faced on

the original charges. Absent the plea agreement, Perez could not have argued for that

sentence. These circumstances make clear that Perez’s motivation for accepting the

16 plea agreement was to avoid the mandatory minimums in the hope of obtaining a

downward variance and reducing his incarceration period. We can confidently

conclude this was Perez’s motivation because it was the only advantage offered to

Perez under the new plea offer that he accepted.

In essence, Perez gambled in accepting an 8-to-10-month increase in his

advisory range (from 70 to 87 months to 78 to 97 months) in exchange for avoiding

the 60-month mandatory minimums. Although Perez’s counsel suggested during oral

argument that the increased advisory range shows that the plea deal was not such a

great deal for Perez, that increase actually cuts against Perez’s case. By accepting a

higher advisory range in his plea agreement, Perez made clear that his motivation in

accepting the agreement was to avoid mandatory minimums so that he could argue

for a below-guidelines sentence.

Perez lost his gamble, as the district court rejected his downward-variance

argument and sentenced him to 78 months, at the bottom of the advisory range but

above the mandatory minimum he would have faced under the original charge.

Because Perez’s strategic choice did not pay off, he now wants to back out of his plea

deal. But even had Perez known of the omitted elements, there is no reason to

believe that would have impacted his decision to plead, because it would not have

impacted his motivation. Perez made a calculated decision to accept this plea

agreement in order to avoid the mandatory minimums. That calculus does not change

depending on whether or not Perez had a chance to beat the firearms offense, when

he was not charged with that offense in the first instance.

17 Indeed, what really mattered was the government’s ability to prove the initial

drug charges, not its ability to prove the substitute firearms offense. Critically,

however, Perez never argues that the government would have had any difficulty in

proving those initial charges. Perez simply overlooks this point, arguing only that

because he has now established a plausible defense to the new gun charge, he

satisfies the third plain-error prong.6 This fails to satisfy his obligation under that

prong.

We read the dissent as disagreeing with us on two main points. First, the

dissent deems Perez’s plausible-defense argument to the gun charge sufficient to

satisfy the third plain-error prong. We think this fails to appreciate the circumstances

under which Perez accepted the plea agreement, which was to avoid the mandatory-

minimum requirements of the initial drug charges. (See Aplt. Br. 2 (“[Perez] pled

guilty to both charges in the information in exchange for dismissal of the two

indicted counts.”).)

Second, in response to our reasoning, the dissent undertakes its own analysis

of the government’s ability to prove the initial drug charges, concluding that the

government would have had “extraordinary difficulty” in proving those charges.

(Dissent 8.) Accordingly, the dissent finds “a reasonable probability that absent the

6 The government additionally points out that Rehaif came out before Perez was sentenced, such that Perez could have tried to withdraw his guilty plea on that basis, but instead chose to stand by it in the hope of reduced sentencing. We reject this argument because it would only have weight if Perez had actual knowledge of Rehaif, and there is no such evidence. 18 error, [Perez] wouldn’t have pleaded guilty because of (1) the weakness of the

government’s evidence showing knowledge of his unlawful status and (2) the

government’s inability to prove [Perez’s] constructive possession of at least

100 grams of heroin.” (Id. at 15–16.)

We cannot agree. To be sure, the dissent makes a credible argument that the

government might have had difficulty proving the initial drug charges. But because

Perez did not make that argument, this approach would require us to reverse under

plain-error review based on a ground not argued by the defendant. We decline to do

so. Instead, we affirm because it is Perez’s burden to establish that his substantial

rights were affected, and, by not arguing that the government would have had

difficulty in proving the initial drugs charges, he has not met his burden of proving

plain error.

In light of Perez’s motivation for taking the plea deal—a motivation that is

unchanged by Rehaif—he has not established a reasonable probability that, but for

the omitted elements, he would not have pleaded guilty. Thus, Perez fails to satisfy

the third prong of plain-error review. Because Perez does not satisfy that prong, we

need not consider the fourth prong. See Trujillo, 960 F.3d at 1208.

* * *

We conclude that the district court did not commit reversible plain error by

accepting Perez’s uninformed guilty plea because Perez fails to establish a reasonable

19 probability that, but for the error, he would not have pleaded guilty. Accordingly, we

affirm his guilty plea and conviction.7

IV. CONCLUSION

For the reasons provided above, we AFFIRM the district court on all issues

presented on appeal.

7 Perez had additionally argued that the district court’s error regarding the firearms offense also required vacating the sentence for the unspecified-quantity drug offense along with the sentence for the firearms offense. However, because we affirm Perez’s firearms conviction, we also affirm the unspecified-quantity drug sentence. 20 United States v. Abiel Perez-Perez, No. 19-2154 BACHARACH, J., dissenting.

The defendant, Mr. Abiel Perez-Perez, pleaded guilty to being a

prohibited person in possession of a firearm and ammunition. 18 U.S.C.

§ 922(g)(5)(A). But the prohibition applies only when defendants know

that they fall within a category of persons barred from possessing a

firearm. United States v. Benton, No. 20–6023, slip op. at 2, 23 (10th Cir.

Feb. 23, 2021) (to be published). Mr. Perez-Perez’s plea agreement didn’t

mention the need for the government to prove the knowledge required for a

conviction.

I agree with the majority that the omission in this plea agreement

constitutes an obvious error. But the majority concludes that the error did

not affect Mr. Perez-Perez’s substantial rights. I respectfully disagree. If

Mr. Perez-Perez had known of the knowledge element, there is a

reasonable probability that he would not have pleaded guilty. I thus

respectfully dissent.

I. Mr. Perez-Perez pleads guilty based on an incorrect recitation of the elements.

The government initially charged Mr. Perez-Perez with two drug-

trafficking offenses:

1. Possession of at least 100 grams of heroin with intent to distribute (21 U.S.C. § 841(a)(1), (b)(1)(B)(i))

2. Conspiracy to possess at least 100 grams of heroin with intent to distribute (21 U.S.C. § 846) Upon conviction, the mandatory minimum sentence would be five years’

imprisonment. 21 U.S.C. § 841(b)(1)(B)(i).

Instead of pursuing these charges, the government entered into a plea

agreement with Mr. Perez-Perez. This agreement required the government

to dismiss the initial charges and Mr. Perez-Perez to plead guilty on two

new charges:

1. Distributing an unspecified quantity of heroin (21 U.S.C. § 841(a)(1), (b)(1)(C)) and aiding and abetting the distribution (18 U.S.C. § 2)

2. Possessing a firearm and ammunition despite a status that prohibits possession (18 U.S.C. § 922(g)(5))

The new charges carried no mandatory minimum sentence.

For the second charge, Mr. Perez-Perez’s plea agreement included an

element that “the defendant was an alien at the time he possessed the

firearm or ammunition.” R. vol. 1, at 143. But the plea agreement didn’t

mention the elements of

 unlawful presence in the United States and

 knowledge of his unlawful status.

Nor were these elements mentioned in the written factual basis for Mr.

Perez-Perez’s guilty plea. Instead, the factual basis reflected only Mr.

Perez-Perez’s admission that he “was not a citizen or national of the

United States.” Id. at 145.

2 Because he pleaded guilty to the additional firearm charge along with

the drug offense, Mr. Perez-Perez’s guideline range increased for the

multiple counts. With the firearm charge, the guideline range was 78–97

months. Without the firearm charge, the guideline range would have been

only 70–87 months. But if convicted on the initial drug charge, Mr. Perez-

Perez would have faced a mandatory minimum of five years’ imprisonment.

II. We review for plain error.

After Mr. Perez-Perez pleaded guilty, the Supreme Court held in

Rehaif v. United States that conviction of the firearm offense (violation of

18 U.S.C. § 922(g)) requires proof of the defendants’ knowledge of their

unlawful status. 139 S. Ct. 2191, 2200 (2019). Because the Supreme Court

decided Rehaif after Mr. Perez-Perez had pleaded guilty, he hadn’t raised

the issue in district court. So we review for plain error. United States v.

Trujillo, 960 F.3d 1196, 1201 (10th Cir. 2020).

For plain-error review, the defendant must show that (1) an error

took place, (2) the error was plain, (3) the error affected the defendant’s

“substantial rights,” and (4) the error “seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.” E.g., United States

v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (citation

omitted).

The government concedes that Mr. Perez-Perez satisfied the first two

requirements. I agree with this concession, for the district court committed

3 an obvious error 1 by failing to inform Mr. Perez-Perez that the government

needed to prove not only his unlawful presence in the United States but

also his knowledge at the time of this unlawful status.

III. The error affected Mr. Perez-Perez’s substantial rights.

The defendant must show that but for the obvious error, a reasonable

probability existed that he would not have pleaded guilty to unlawful

possession of a firearm. Trujillo, 960 F.3d at 1201. Under this test, he

needed only to show “a probability sufficient to undermine confidence in

the outcome.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138

(10th Cir. 2017) (en banc) (quoting United States v. Hasan, 526 F.3d 653,

665 (10th Cir. 2008)). In my view, Mr. Perez-Perez satisfied this burden.

A. The government had only weak evidence of Mr. Perez- Perez’s knowledge of his unlawful status.

The government contends that Mr. Perez-Perez knew of his unlawful

status, so informing him of the element wouldn’t have affected his decision

to plead guilty. But Mr. Perez-Perez argues that the government would

have had difficulty proving knowledge of his unlawful status when he

possessed the firearm.

I agree with Mr. Perez-Perez. In light of his background and the

complex procedural steps in his removal proceedings, the government

1 The error is obvious only in retrospect because the district court understandably relied on our precedents existing at that time. The district court lacked the benefit of Rehaif. 4 would have had a difficult time proving knowledge of his unlawful status.

Given that difficulty, there is a reasonable probability that Mr. Perez-Perez

would not have pleaded guilty to the firearm charge.

We have previously addressed the impact of failing to inform

defendants that guilt required knowledge of their unlawful status. United

States v. Trujillo, 960 F.3d 1196 (10th Cir. 2020). In that case, we

concluded that the omission hadn’t affected substantial rights because the

defendant couldn’t credibly deny awareness of his felony status: He had

been convicted of multiple felonies, had served time in prison, and had

admitted his felony status. Id. at 1208. So we assumed that the defendant

would have pleaded guilty even if he had known of the government’s

burden to prove knowledge of his unlawful status. Id.

But we acknowledged that “if the evidence of a defendant’s

knowledge of his felony status is weak, we can presume his substantial

rights were affected because he might have proceeded to trial if he had

known the government would be required to prove he knew he was a

felon.” Id. at 1207. This presumption would be equally applicable if the

government had only weak evidence of the defendant’s knowledge of his

immigration status. See United States v. Balde, 943 F.3d 73, 97 (2d Cir.

2019) (concluding that the defendant’s substantial rights were affected

because his immigration status was “hotly contested”).

5 In determining the strength or weakness of the evidence involving

Mr. Perez-Perez’s knowledge of his immigration status, we must consider

the nature of his removal proceedings. The government started removal

proceedings in 2016, but Mr. Perez-Perez was never removed. 2 He began

the process of adjusting to lawful status based on his marriage to a U.S.

citizen, and the government returned his bond money to him. No one told

him to leave the United States, and nothing further took place in the

removal proceedings. 3 Why would Mr. Perez-Perez have thought that he

was still unlawfully in the United States?

Wouldn’t anyone in his shoes think that his status had changed? In

2016, Mr. Perez-Perez had presumably known that he had been

undocumented, arrested, and administratively charged with unlawful

presence. But the circumstances changed by the time that he was found

with a firearm. By then, the government had returned his bond money, his

marriage to a U.S. citizen had provided a pathway to citizenship, he had

begun the process to obtain an adjustment of status, and no one had told

him to leave the United States.

2 The presentence report also notes that in 2012, Mr. Perez-Perez “was charged by Immigration and Customs Enforcement for Illegal Entry, but no charges were filed.” R. vol. 2, at 309. 3 Mr. Perez-Perez states that the removal proceedings were closed, but the record does not say that the proceedings were closed. 6 This court has acknowledged the technicalities and complexity of our

immigration laws. See, e.g., United States v. Chang Hong, 671 F.3d 1147,

1153 (10th Cir. 2011). Even a well-educated layperson might have

struggled to understand that he was unlawfully present under these

circumstances. But Mr. Perez-Perez was not well-educated: He had only a

sixth-grade education, could barely read, and didn’t speak English.

Under these circumstances, defense counsel could persuasively argue

that at the time of the offense, Mr. Perez-Perez had believed that he was

lawfully in the United States. Countering that argument would likely have

proven difficult, and the government would have had to prove knowledge

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); see

p. 9, 11–12, below.

Given the government’s difficulty in proving Mr. Perez-Perez’s

knowledge of his unlawful status, we should presume that the failure to

inform him of this element affected his substantial rights. United States v.

Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see p. 5, above.

B. The government would also have faced difficulty in proving Mr. Perez-Perez’s constructive possession of 100 grams or more of heroin.

Despite this presumption, the majority affirms, reasoning that Mr.

Perez-Perez would likely have pleaded guilty anyway because the

agreement with the government relieved him of a potential mandatory

minimum term of five years. In my view, however, the government would

7 have had extraordinary difficulty in proving Mr. Perez-Perez’s possession

of enough heroin to trigger the mandatory minimum.

In a single sentence, the government asserted that “the government

could easily have established a drug quantity above the 100-gram threshold

for the drug charges in the indictment.” Government’s Resp. Br. at 18; see

pp. 12–13, below. For this assertion, the government relied on the

presentence report’s attribution of “responsibility” to Mr. Perez-Perez for

462 grams of heroin.

But Mr. Perez-Perez was never charged with distributing 462 grams.

He was initially charged only with distributing 100 grams or more on

October 25, 2017. According to the presentence report, the only heroin

found that day was roughly 186 grams in a shoe and roughly 1 gram on a

kitchen table.

Mr. Perez-Perez acknowledges that part of “the calculus” is the

relative strength of the government’s evidence that Mr. Perez-Perez had

possessed enough heroin on October 25, 2017, to trigger the mandatory

minimum. Oral Argument at 2:14. The only way to evaluate the strength of

that evidence is to assess the appellate record. See United States v.

Dussard, 967 F.3d 149, 156–57 (2d Cir. 2020) (evaluating the appellate

record to determine the effect on the defendant’s substantial rights based

on a negotiated guilty plea that had eliminated the possibility of a ten-year

mandatory minimum sentence).

8 At sentencing, the district court considered Mr. Perez-Perez’s

relevant conduct to include the heroin found in the shoe. U.S.S.G.

§ 1B1.3(a)(1)(A)–(B). But Mr. Perez-Perez didn’t actually possess any

heroin on October 25, 2017; the government’s only possible theory of guilt

would involve constructive possession. See, e.g., United States v.

McCullough, 457 F.3d 1150, 1168 (10th Cir. 2006). For constructive

possession, the government would have needed to prove beyond a

reasonable doubt that Mr. Perez-Perez (1) had knowingly possessed the

power to exercise dominion or control over the contraband and (2) had

actually intended to exercise control. See United States v. Little, 829 F.3d

1177, 1182 (10th Cir. 2016) (elements); In re Winship, 397 U.S. 358, 364

(1970) (proof beyond a reasonable doubt).

Given this burden, the government would likely have been unable to

prove Mr. Perez-Perez’s possession of 100 grams of heroin. On the day in

question, Mr. Perez-Perez and another man were standing in the kitchen.

The only heroin in the kitchen totaled a little over 1 gram (1.094 grams).

For the mandatory minimum, the government needed to prove Mr. Perez-

Perez’s constructive possession of roughly 99 more grams. 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(i).

Law-enforcement officers found roughly 186 grams of heroin in a

shoe in the closet of another room. But Mr. Perez-Perez has consistently

9 denied that this heroin was his. For example, he argued in district court

that the evidence hadn’t tied him to the heroin found in the shoe:

[D]uring a post arrest interview, Torres stated that he was responsible for what was in the bedroom, meaning that he was responsible for the heroin in there. During the interview, in no way did Mr. Torres indicate that Mr. Perez was involved with his 187.09 grams of heroin. Further, nothing in the bedroom points that Mr. Perez was using the room. None of the documents nor items found in the bedroom demonstrate any ownership to Mr. Perez. Also, throughout law enforcement’s operation, which included three controlled buys and surveillance of the apartment, no evidence ever pointed that Mr. Torres and Mr. Perez were involved in the same operation. Mr. Perez-Perez’s Objection to Presentence Report at 5–6 (citations

If prosecutors had pursued the initial charge, they would have had

eight problems in trying to show Mr. Perez-Perez’s constructive possession

of this heroin:

1. The 186 grams of heroin was found inside a shoe in the bedroom closet. Presentence Report at 7; Transcript of Sentencing at 19 (Testimony of DEA Agent David Nutley).

2. The shoe was a size ten, and Mr. Perez-Perez contends that he wears a size 11 shoe. Amended Criminal Complaint at 3; Report of Investigation at 3, 6; Transcript of Sentencing at 20.

3. Mr. Perez-Perez was not in the bedroom at the time of the arrest. Asleep in the bedroom was another man, Mr. Diego Torres-Ledesma. E.g., Amended Criminal Complaint at 2–3; Transcript of Sentencing at 18, 24 (Testimony of DEA Agent David Nutley); United States’ Sentencing Memorandum at 3.

4. Mr. Torres-Ledesma stated that he lived in the apartment. E.g., United States’ Sentencing Memorandum at 5.

10 5. Mr. Torres-Ledesma admitted several times that the heroin in the shoe was his. Presentence Report at 8 (noting that Mr. Torres-Ledesma “stated that he was responsible for what was found in the bedroom” and later “restated that it was his heroin”); Amended Criminal Complaint at 3; Transcript of Sentencing at 23 (Testimony of DEA Agent David Nutley).

6. Mr. Torres-Ledesma never said that he was working with or for Mr. Perez-Perez. Transcript of Sentencing at 23 (Testimony of DEA Agent David Nutley).

7. Mr. Perez-Perez’s primary residence was elsewhere. Presentence Report at 6.

8. The apartment (where the heroin was found) was rented in the name of another individual, Mr. Cesar Martinez—not Mr. Perez-Perez. Transcript of Sentencing at 22 (DEA Agent’s admission that the investigation found that “the apartment was not rented by Mr. Perez”); id. at 44 (the government’s concession that the property “was not rented to Mr. Perez- Perez’s name”).

The government pointed out that Mr. Perez-Perez had a key to the

apartment. United States’ Sentencing Memorandum at 4. And no one

questions his access to the apartment. But the government needed to prove

beyond a reasonable doubt not just Mr. Perez-Perez’s access but also his

intent to exercise dominion over heroin

 found inside a shoe in a closet,

 in a shoe that wouldn’t have fit Mr. Perez-Perez’s foot,

 claimed multiple times by another man, Mr. Torres-Ledesma,

 found in a bedroom where Mr. Torres-Ledesma was sleeping, and

 in an apartment rented to Mr. Martinez (not Mr. Perez-Perez).

11 See Alleyne v. United States, 570 U.S. 99, 107–08 (2013) (requirement of

proof beyond a reasonable doubt because of the resulting mandatory

minimum sentence). Given the difficulty of that burden, the government

might not even have tried to prove Mr. Perez-Perez’s constructive

possession of the heroin in the shoe. If the government had persisted with

the charge, however, Mr. Perez-Perez would likely have obtained an

acquittal.

The majority notes that Mr. Perez-Perez did not argue in his

appellate briefing that the government would have had difficulty proving

the initial heroin charge. There’s a reason for that. The government waited

until oral argument to develop an argument that it could have proven

possession of 100 or more grams of heroin.

In briefing, Mr. Perez-Perez argued that the government probably

could not have proven knowledge of his unlawful status. I agree with him.

Given the government’s likely inability to prove Mr. Perez-Perez’s

knowledge of his unlawful status, we would presume a reasonable

probability that he would not have pleaded guilty to the firearm charge.

See United States v. Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see

also p. 5, above.

Despite this presumption, the government responded that (1) Mr.

Perez-Perez had not contested his status and (2) the government could have

proven knowledge of his prohibited status. The government made only a

12 single, cursory reference to Mr. Perez-Perez’s benefit from the plea

agreement; even that cursory reference appeared only in the course of an

argument that Mr. Perez-Perez should have sought to change his plea

before the sentencing. See p. 8, above.

Had the government clearly argued that Mr. Perez-Perez would have

pleaded guilty to the firearm offense to avoid a mandatory minimum, he

could have countered the argument in his reply brief. But the government

waited until oral argument to develop an argument that the original charges

bore on the inquiry into Mr. Perez-Perez’s substantial rights.

As Mr. Perez-Perez pointed out, we have no way of knowing why the

government dropped the original charges. Oral Argument at 12:06–12:35.

The majority’s explanation might be right: The government might have

dropped the charges at Mr. Perez-Perez’s insistence (for reasons that we

can only speculate about). But the government might also have dropped the

initial charge on drug quantity because of doubt that it could prove Mr.

Perez-Perez’s intent to exercise dominion over heroin

 in someone else’s shoe

 in someone else’s bedroom

 in someone else’s apartment.

Without substantive briefing on this issue, we can only speculate on

why the government agreed to amend the charges. Speculation aside, our

presumption remains. See pp. 5–6, above. 13 * * *

I would not uphold the sentence based on an argument that (1) the

government did not develop until oral argument and (2) lacks support in

the record. We have previously articulated a presumption that a

defendant’s substantial rights are affected when the government has only

weak evidence on knowledge of prohibited status. We have little reason to

jettison that presumption here. That presumption would compel us to find a

substantial effect on Mr. Perez-Perez’s substantial rights.

IV. The error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The omission also satisfies the fourth prong of the plain-error test by

affecting the fairness, integrity, or public reputation of judicial

proceedings. The third and fourth prongs are independent inquiries, and the

fourth prong is satisfied only when an error is “particularly egregious” and

inaction would result in a “miscarriage of justice.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc) (citation

For example, the fourth prong is satisfied when the error causes the

conviction or sentencing of an actually innocent defendant. United States

v. Trujillo-Terrazas, 405 F.3d 814, 820 n.1 (10th Cir. 2005). But a

defendant can satisfy the fourth prong without proving actual innocence.

Id. Mr. Perez-Perez has satisfied this prong because the government

14 probably couldn’t prove his knowledge of prohibited status or constructive

possession of the heroin in the shoe.

Given the likelihood of an acquittal, affirmance would create a

miscarriage of justice. Because of the court’s failure to fully inform Mr.

Perez-Perez of the elements of the firearm charge, he pleaded guilty

despite the probability that

 the government couldn’t prove guilt and

 he would have pleaded not guilty if he had known of the government’s burden to prove knowledge of his prohibited status.

The obvious error thus affects the fairness, integrity, or public reputation

of the judicial proceedings.

V. Conclusion

In my view, there is a reasonable probability that absent the error,

Mr. Perez-Perez wouldn’t have pleaded guilty because of (1) the weakness

of the government’s evidence showing knowledge of his unlawful status

and (2) the government’s inability to prove Mr. Perez-Perez’s constructive

possession of at least 100 grams of heroin.

Because Mr. Perez-Perez has satisfied his burden under all four

prongs of the plain-error test, I would vacate his conviction and remand

with instructions for the district court to impose a new sentence on the

remaining heroin charge.