FILED United States Court of Appeals Tenth Circuit
UNITED STATES COURT OF APPEALS April 29, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 19-1198 v. (D.C. No. 1:18-CR-00263-RM-1) (D. Colo.) DEMONTRAE WILSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HOLMES, SEYMOUR, and PHILLIPS, Circuit Judges.
In January 2019, defendant-appellant Demontrae Wilson was convicted of
receiving and possessing a stolen firearm, in violation of 18 U.S.C. § 922(j), and of
possessing ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to ninety-six months’ imprisonment. In this appeal, Mr. Wilson raises
five distinct challenges to his trial and sentence. Most (but not all) of his
challenges relate to the district court’s decision to admit into evidence subpoenaed
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. records from two Facebook accounts.
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we
affirm in part and reverse in part.
I
On February 6, 2018, thirteen firearms were stolen from the ACME
pawnshop in Colorado Springs, Colorado. On the day of the burglary, a Facebook
user named “BigTop Cox” posted three photographs of one of the stolen
firearms—a Windham Weaponry AR-15—to his Facebook page. “BigTop Cox”
also posted photographs of several other guns stolen from the ACME pawnshop on
February 6. Later that day, a different Facebook user, “YG Vito Bandolini” sent
“BigTop Cox” photographs of the same stolen firearms, with the pawnshop price
tags still attached to the rifles.
On March 21, 2018, a Colorado Springs police officer stopped Mr. Wilson’s
Audi sedan after witnessing a traffic violation. At the time, Mr. Wilson had an
outstanding bench warrant. Mr. Wilson was in the front passenger seat, and a large
white bandage covered part of his left ear. In the back seats were a Mr. Deshawn
Watson, who gave the officer a false name, and a Ms. Laina Curtis. The police
officer arrested Mr. Wilson on the bench warrant. The officer thereafter discovered
the stolen Windham Weaponry AR-15, loaded, in the back seat of Mr. Wilson’s car.
The officer found loose rounds of ammunition throughout the vehicle, and a rifle
2 case for the stolen AR-15 in the trunk.
The police officer also arrested Mr. Watson for giving him a false name.
Police later searched Mr. Watson’s cell phone and found a photograph that matched
the photograph of the stolen Windham Weaponry AR-15 that “BigTop Cox” had
posted to Facebook the day of the ACME pawnshop burglary. The police also
discovered that the public profile photograph for the Facebook page of “BigTop
Cox” was a picture of Mr. Watson.
The Colorado Springs police eventually served a search warrant on
Facebook, requesting copies of certain records of posts and communications by
Facebook users “YG Vito Bandolini” and “BigTop Cox.” Facebook complied with
the warrant. It also provided a certificate of authenticity—signed under penalty of
perjury by a Facebook custodian of records—that declared that the contents of the
subpoenaed records were “made at or near the time the information was transmitted
by the Facebook user.” Suppl. R. at 39 (Certificate of Authenticity, dated Nov. 20,
2018).
The Facebook records appeared to link Mr. Wilson to the “YG Vito
Bandolini” Facebook account. The account’s public profile photographs were of
Mr. Wilson and his wife. The account’s registered email address seemingly
mirrored part of Mr. Wilson’s first name, and the user’s current location was listed
as Colorado Springs. The account contained other photographs of Mr. Wilson and
3 his wife, and communications between “YG Vito Bandolini” and Mr. Wilson’s
wife. The Facebook records also appeared to explain the large white bandage
covering part of Mr. Wilson’s ear at the time of his arrest. “YG Vito Bandolini”
told one user that he had been “shot in the head,” and later sent a photograph of a
bullet wound behind the top part of his left ear. Id. at 44 (Facebook Business R.,
generated Apr. 27, 2018).
During their investigation, police also searched an apartment that Ms. Curtis
recently vacated. The rug on the bathroom floor of the apartment appeared very
similar to the rug in photographs posted to Facebook by “BigTop Cox” of the
Windham Weaponry AR-15, among certain other firearms from the ACME
pawnshop. In the bathroom medicine cabinet of the apartment, police found two
prescription drug bottles with Mr. Wilson’s name on them. The police also found
ammunition identical to the kind found in Mr. Wilson’s vehicle on the day of his
arrest.
II
Mr. Wilson was indicted for (1) receipt and possession of a stolen firearm, in
violation of 18 U.S.C. § 922(j); (2) possession of a firearm as a felon, in violation
of 18 U.S.C. § 922(g)(1); and (3) possession of ammunition as a felon, also in
4 violation of 18 U.S.C. § 992(g)(1).1 The date range for the two firearm-possession
charges spanned February 6, 2018 (the date of the pawnshop burglary) to March 21,
2018 (the date of Mr. Wilson’s arrest, when police found the stolen AR-15 in his
vehicle).
At trial, the government sought to introduce Facebook records from the
accounts of “YG Vito Bandolini” and “BigTop Cox.”2 The government offered the
certificates of authenticity from Facebook record custodians to establish the
authenticity of the account records. Mr. Wilson objected. He argued that the
records were not self-authenticating under FED R. EVID . 802–803 and 902, and did
not constitute business records. The government responded that the certificates
were offered only to show that the Facebook records were provided in response to
the subpoena. The certificates did not identify the owners of the two accounts.
The government therefore acknowledged that the certificates alone were not
sufficient to show who posted the photographs and messages, and that it would
need to present more evidence to that end for the records to be admitted into
1 After an objection by Mr. Wilson, the government elected to proceed on the ammunition-related felon-in-possession charge based solely on the ammunition found in Mr. Wilson’s vehicle on the date of his arrest—and not, also, on the ammunition found in Ms. Curtis’s apartment. 2 Earlier in the pre-trial proceedings, the district court excluded three photographs of Mr. Wilson holding a firearm other than the stolen Windham Weaponry AR-15 on the grounds that the photographs constituted improper evidence under FED . R. EVID . 404(b).
5 evidence.
The district court thus admitted the certificates solely “to establish that the
records are authentic Facebook account records.” R., Vol. VI, at 454 (Trial Tr.,
dated Jan. 29, 2019). And the court made it clear that the government would need
to present further foundation before it would admit the records themselves. The
government later successfully did so. The district court found that the government
had provided a sufficient basis for the jury to infer that Mr. Wilson was “YG Vito
Bandolini” for several reasons: (1) the account’s registered email address,
montrae47w@yahoo.com, appeared to be derived from Mr. Wilson’s first name,
Demontrae; (2) the account listed Colorado Springs, Colorado, as the user’s current
location (a location associated with Mr. Wilson); and (3) the account contained
multiple pictures of Mr. Wilson, including the public profile photograph. The court
further explained that what made this matter “an easy issue” was that “YG Vito
Bandolini” had clearly suffered the same unique gunshot to the head as Mr. Wilson.
Id. at 452. The court eventually admitted the Facebook records for “YG Vito
Bandolini” and “BigTop Cox.”3
3 The district court did not similarly explain its decision to admit the photographs from the “BigTop Cox” Facebook account. Yet, prior to its decision, the court had heard that the account’s public profile photograph was of Mr. Watson, that Mr. Watson had on his cell phone one of the photographs of a stolen firearm that “BigTop Cox” had posted to Facebook, and that the firearms in the “BigTop Cox” Facebook photos were the ones stolen from the pawnshop.
6 Importantly, Mr. Wilson had also moved to exclude certain firearms
photographs both under FED . R. EVID . 404(b) and as hearsay. But the district court
overruled Mr. Wilson’s Rule 404(b) objection. It admitted the contested
photographs “to show access to the weapons, in a timeframe that suggests
knowledge of their theft.” Id. at 546. The court likewise overruled the hearsay
objection to the photographs, concluding that they did not make any apparent
assertion.
In its final jury instructions, the district court specified that the same stolen
firearm—the Windham Weaponry AR-15—was the subject of counts one and two
against Mr. Wilson, receipt and possession of a stolen firearm and possession of a
firearm as a felon. The court also specified that the ammunition recovered from
Mr. Wilson’s car was the subject of count three, possession of ammunition as a
felon. For purposes of the two felon-in-possession charges, the parties stipulated
that Mr. Wilson previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year. The jury was not instructed that to convict Mr.
Wilson of the two felon-in-possession charges they had to find that, at the time of
the offenses, Mr. Wilson knew that he had previously been convicted of a felony
(i.e., a crime punishable by more than one year in prison). But Mr. Wilson did not
object at trial to this omission in the instructions.
7 The jury convicted Mr. Wilson of receiving and possessing a stolen firearm
and of possessing ammunition as a felon. However, the jury acquitted Mr. Wilson
of possessing a firearm as a felon.
The Presentence Investigation Report (“PSR”) found that Mr. Wilson had
two prior adult convictions for a “crime of violence” within the meaning of the
U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”),4 including a
conviction under Colorado’s law of third-degree assault. Mr. Wilson timely
objected to the PSR’s conclusion that his third-degree assault conviction was a
“crime of violence” under the Guidelines. He argued that we previously had
rejected such a conclusion in United States v. Perez-Vargas, 414 F.3d 1282 (10th
Cir. 2005). Mr. Wilson further insisted that Colorado’s third-degree assault statute
does not require violent force.
The district court rejected Mr. Wilson’s objection. It concluded that the PSR
correctly determined that Mr. Wilson’s total offense level was twenty-eight and his
criminal history category was V, resulting in a Guidelines range of 130 to 162
months’ imprisonment. Yet, the court granted Mr. Wilson’s motion to depart
downward from the Guidelines range. Tacitly referencing Guidelines § 4A1.3(b),
4 The U.S. Probation Office used the 2018 edition of the Guidelines in calculating Mr. Wilson’s advisory Guidelines sentence. Mr. Wilson does not object to this choice on appeal. Therefore, we also rely on this edition of the Guidelines, as needed, in resolving the issues in this appeal.
8 the court determined that criminal history category V substantially overstated the
seriousness of Mr. Wilson’s criminal history and reasoned that a criminal history
category of IV “makes more sense.” R., Vol VII, at 49 (Tr. Sentencing Hr’g, dated
May 29, 2019). The court adjusted Mr. Wilson’s Guidelines range down to 110 to
137 months’ imprisonment, and then ultimately sentenced him to ninety-six months
in prison. This timely appeal followed.
III
Mr. Wilson raises five arguments on appeal. First, he insists that the district
court abused its discretion by admitting into evidence unauthenticated Facebook
posts. Second, he contends that the court violated FED . R. EVID . 404(b) and the
rule against hearsay by admitting into evidence the Facebook photographs of
firearms. Third, he argues that the court erred in failing to raise sua sponte a
duplicity problem allegedly posed by the Facebook evidence in count one—the
receipt and possession of a stolen firearm. Fourth, he maintains that the court erred
in failing to instruct the jury that, in order to find him guilty of the charged felon-
in-possession offenses, they had to find that, at the time of the offenses, he knew
that he occupied the status of felon—that is, he knew that he had been convicted of
a crime punishable by more than one year in prison. Finally, he argues that the
court erred in finding that Mr. Wilson’s third-degree-assault conviction under
Colorado law was a “crime of violence” under the Guidelines. For the reasons set
9 forth below, we reject all of Mr. Wilson’s contentions of error, except for his jury-
instruction challenge to the felon-in-possession instructions. As to that
instructional challenge, we conclude that Mr. Wilson has established, under the
plain-error rubric, that he is entitled to relief. Accordingly, we affirm in part and
reverse in part.
A
Mr. Wilson first argues that the district court erred in admitting into
evidence Facebook account materials from users “YG Vito Bandolini” and “BigTop
Cox.” According to Mr. Wilson, the court made two errors: it wrongly treated the
Facebook materials as “self-authenticating” because of the certificates of
authenticity that Facebook provided, and it failed to require “external
circumstantial evidence” to establish that Mr. Wilson was the user of the “YG Vito
Bandolini” account. Aplt.’s Opening Br. at 15, 21. Because we review this alleged
error for abuse of discretion, we will only overturn the district court’s decision if
“we are firmly convinced that the district court ‘made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.’” United States v.
Magleby, 241 F.3d 1306, 1315 (10th Cir. 2001) (quoting Moothard v. Bell, 21 F.3d
1499, 1504 (10th Cir. 1994)).
Mr. Wilson has failed to show that the district court abused its discretion by
admitting the Facebook evidence. His argument rests on an erroneous view of the
10 trial record. The district court never held that Facebook’s certificates of
authenticity somehow self-authenticated the contents of the Facebook users’
posts—much less established the identities of the users themselves. Instead, the
court held that the certificates of authenticity merely “establish[ed] that the records
are authentic Facebook account records, that’s all.” R., Vol. VI, at 454. It is
precisely for this reason that the court ruled that further foundation would be
necessary before it would admit any messages or photographs from the accounts.
With respect to the materials from the “YG Vito Bandolini” account, the court
expressly told the government that it had to provide sufficient evidence to establish
that the account was Mr. Wilson’s.
Mr. Wilson also wrongly suggests that the district court relied solely on the
contents of the Facebook materials—and not external circumstantial evidence—to
authenticate the materials and establish their relevance. The court did not admit the
Facebook posts from “BigTop Cox” into evidence until the manager of the ACME
pawnshop verified that the firearms depicted in the user’s photographs were the
same ones stolen from the pawnshop. And the court similarly relied on the fact
that Mr. Wilson and “YG Vito Bandolini” were both “shot in the head” and had the
same unique bullet wound when it admitted into evidence the “YG Vito Bandolini”
account materials. Id. at 452. It is therefore wrong to suggest that the court failed
to rely on any external evidence to authenticate and admit the Facebook evidence.
11 In sum, Mr. Wilson’s first challenge fails because he incorrectly imputes to
the district court errors that the record does not reveal.
B
Mr. Wilson next argues that the district court violated FED . R. EVID . 404(b)
and the rule against hearsay by admitting into evidence the Facebook photographs
of the stolen firearms. He insists that the photographs amounted to improper Rule
404(b) evidence because the government “made no record as to [the photographs’]
proper purpose.” Aplt.’s Opening Br. at 23. But here, too, Mr. Wilson adopts a
mistaken view of the record.
To prove the § 922(j) charge, the government had to show that Mr. Wilson
received and possessed a stolen firearm “knowing or having reasonable cause to
believe” that the firearm was stolen. 18 U.S.C. § 922(j). The district court thus
appropriately held that “an unmistakable purpose” of the government’s use of the
firearms photographs was “to show not only that the guns were, in fact, stolen, but
that [Mr. Wilson] knew or had reasonable cause to believe that they were stolen.”
R., Vol. VI, at 90 (Tr. Hr’g, dated Jan. 10, 2019). Even assuming that the
admissibility of the photographs was subject to the strictures of Rule 404(b),5 the
5 The government has argued alternatively that the photographs were “intrinsic to the charged crime” and, accordingly, that their admission was “not subject to Rule 404(b).” Aplee.’s Resp. Br. at 28; see also United States v. Kupfer, 797 F.3d 1233, 1238 (10th Cir. 2015) (noting that “[w]hen we apply Rule 404(b), we distinguish between evidence that is extrinsic or intrinsic to the charged crime”
12 district court did not abuse its discretion in finding that they were admissible to
prove knowledge—a permissible use under Rule 404(b). See, e.g., United States v.
Watson, 766 F.3d 1219, 1237 (10th Cir. 2014) (noting that the evidence was
admitted for “proper purposes under Rule 404(b),” inter alia, “to prove [the
defendant’s] knowledge and intent to join the charged conspiracy”).
Mr. Wilson’s contention that the firearms photographs amounted to hearsay
fares no better. Mr. Wilson insists that because some of the firearms contained
price tags, those tags allegedly “impl[ied] their negotiation and sale non-verbally.”
Aplt.’s Opening Br. at 27. Yet, Mr. Wilson does not explain how these largely
illegible tags could be an assertion of an offer to sell; nor does he show, more
generally, that the photographs of the tags were introduced by the government and
admitted by the court for the truth of the matter asserted—that is, for the truth of
such an offer to sell. See, e.g., United States v. Ibarra-Diaz, 805 F.3d 908, 924
(10th Cir. 2015) (“Because it was not offered for the truth of the matter asserted,
the testimony did not constitute hearsay . . . .”). Indeed, only one price tag was
clearly legible. And the record indicates that this photograph with the legible price
tag was admitted for a non-hearsay purpose—namely, to show that the tag was
and that Rule 404(b) “does not cover evidence that is considered” the latter). Given our manner of resolving Mr. Wilson’s challenge to the admission of the photographs, however, we have no need to consider the merits of this alternative argument.
13 unique to the pawn shop from which the firearms were stolen. Accordingly, there
is no sign that this, or the other photographs of the tags, were admitted for a
hearsay purpose; thus, they were not hearsay.
C
Mr. Wilson further maintains that the district court erred in failing to raise
sua sponte an alleged duplicity problem that the Facebook evidence created in the
§ 922(j) charge—receipt and possession of a stolen firearm. He argues that
different members of the jury could have found that he received and possessed the
stolen Windham Weaponry AR-15 at different, non-overlapping times.
However, Mr. Wilson has waived this issue by failing to raise it in a pretrial
motion under FED . R. CRIM . P. 12(b)(3)(B)(i) and by failing to argue on appeal that
he had good cause for not raising it in a timely manner. See United States v.
Bowline, 917 F.3d 1227, 1237 (10th Cir. 2019) (holding that “we will not review an
untimely Rule 12 argument absent good cause”); FED . R. CRIM . P. 12(b)(3)(B)(i)
(providing that “duplicity,” or “joining two or more offenses in the same count,” is
a Rule 12 argument). Mr. Wilson’s failure to argue good cause in either his
opening brief or reply brief is a fatal omission of this argument on appeal.
D
Mr. Wilson argues that the jury was “improperly instructed” on the elements
of the felon-in-possession offense “in light” of the Supreme Court’s decision in
14 Rehaif v. United States, --- U.S. ----, 139 S. Ct. 2191 (2019), and his felon-in-
possession conviction must therefore be overturned. Aplt.’s Opening Br. at 32
(bold-face font and capitals omitted). Approximately six months after the jury
found Mr. Wilson guilty of his felon-in-possession offense (involving possession of
ammunition), the Court held in Rehaif that, to convict a defendant under 18 U.S.C.
§ 922(g), the government “must show that the defendant knew he possessed a
firearm and also that he knew he had the relevant [prohibited] status when he
possessed it.” 139 S. Ct. at 2194; see United States v. Benton, 988 F.3d 1231,
1236–39 (10th Cir. 2021) (examining the contours of Rehaif’s holding).
As applied here, this means that the government was required to prove not
only that Mr. Wilson was in fact a convicted felon at the time that he possessed the
ammunition, but also that he knew that he was a felon—that is, he knew that he had
been convicted of a crime punishable by a prison term exceeding one year. But, as
Mr. Wilson points out, the district court’s instructions to the jury concerning the
felon-in-possession offense elided the knowledge-of-status element; in other words,
they did not require the jury to find that Mr. Wilson knew of his felon status at the
time he possessed the ammunition. Given the timing of Rehaif, the district court’s
failure to instruct regarding the knowledge-of-status element is “understandable,”
but nevertheless we recognize that the felon-in-possession instructions were legally
erroneous. United States v. Tignor, 981 F.3d 826, 828 (10th Cir. 2020).
15 That said, we agree with the government’s conclusion that Mr. Wilson
forfeited (that is, never raised) this instructional objection before the district court.
Nor does Mr. Wilson acknowledge this forfeiture in his opening brief. Ordinarily,
as a consequence of such failings, we would not consider Mr. Wilson’s
instructional objection at all—deeming it “effectively waived.” Havens v. Colo.
Dep’t of Corr., 897 F.3d 1250, 1259 (10th Cir. 2018); see United States v. Leffler,
942 F.3d 1192, 1196 (10th Cir. 2019) (“When an appellant fails to preserve an
issue and also fails to make a plain-error argument on appeal, we ordinarily deem
the issue waived (rather than merely forfeited) and decline to review the issue at
all—for plain error or otherwise.”). However, in his reply brief, Mr. Wilson does
not dispute his forfeiture; instead, he seeks to “run the gauntlet created by our
rigorous plain-error standard of review.” United States v. McGehee, 672 F.3d 860,
876 (10th Cir. 2012).
In such circumstances, we have exercised our discretion to review forfeited
arguments—albeit only for plain error. See United States v. Zander, 794 F.3d
1220, 1232 n.5 (10th Cir. 2015) (concluding that “Defendant adequately addressed
the issue of plain error review in his reply to the government’s brief, after arguing
in his opening brief that his objections below were sufficiently raised to be
preserved for review on appeal”); see also Tignor, 981 F.3d at 829 (addressing the
defendant’s Rehaif-based plain-error argument that was “newly presented in his
16 reply brief”); United States v. MacKay, 715 F.3d 807, 831 n.17 (10th Cir. 2013)
(noting that “we do not discount the possibility that we may consider a plain error
argument made for the first time in an appellant’s reply brief”). And we do so
here.
To satisfy the rigorous plain-error standard, Mr. Wilson must show “(1) an
error, (2) that is plain, which means clear or obvious under current law, and (3) that
affects substantial rights. If he satisfies these criteria, this Court may exercise
discretion to correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Goode, 483 F.3d 676, 681
(10th Cir. 2007) (quoting United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.
2003)). Importantly, “[w]e apply plain error ‘less rigidly when reviewing a
potential constitutional error,’ as is the case here because ‘an improper instruction
on an element of the offense violates the Sixth Amendment’s jury trial guarantee.’”
United States v. Samora, 954 F.3d 1286, 1293 (10th Cir. 2020) (citation omitted)
(first quoting United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001), then
quoting Neder v. United States, 527 U.S. 1, 12 (1999)); see also United States v.
Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005).
The government candidly “concedes the first two prongs of plain error.”
Aplee.’s Resp. Br. at 40. That is, it accepts that the district court’s felon-in-
possession instructions are clearly or obviously erroneous under current law
17 because they omit the knowledge-of-status element. See, e.g., United States v.
Cordery, 656 F.3d 1103, 1107 (10th Cir. 2011) (noting that “plain error is
measured at the time of appeal”). But the government insists that Mr. Wilson
cannot satisfy the remainder of the plain-error factors, and, consequently, that he is
not entitled to relief. Having carefully considered the matter, we are constrained to
disagree. We turn now to consider those plain-error factors.
Recall that under the third prong of the plain-error standard, Mr. Wilson
“must show [that] the error affected his substantial rights.” Samora, 954 F.3d at
1293. More specifically, he must demonstrate that there is a “‘reasonable
probability that, but for the error,’ the outcome of the proceeding[s] would have
been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)); accord
United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir. 2005) (en banc).
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” United States v. Wolfname, 835 F.3d 1214, 1222 (10th Cir. 2016)
(quoting United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)).
In conducting this reasonable-probability inquiry—an inquiry focused on the
potential that the alleged error prejudiced the defendant, see Gonzalez-Huerta, 403
F.3d at 733—the judgment of “the reviewing court” is “informed by the entire
record.” Dominguez Benitez, 542 U.S. at 83; see United States v. Edgar, 348 F.3d
18 867, 872 (10th Cir. 2003) (“We may consult the whole record when considering the
effect of any error on substantial rights.”); see also United States v. Reed, 941 F.3d
1018, 1021 (11th Cir. 2019) (considering the entire record in conducting the
reasonable-probability plain-error inquiry, where the defendant alleged Rehaif-
related trial error).6
“When a district court gives a legally incorrect jury instruction on the
principal elements of the offense or a defense, we often have concluded that the
legal error affected the outcome of the trial proceedings.” United States v.
6 In making their plain-error arguments—under both the third and fourth prongs of the plain-error standard—both parties rely on not only the trial record, but also information in the PSR. See Aplt.’s Reply Br. at 22; Aplee.’s Resp. Br. at 41–44; see also Aplt.’s Opening Br. at 34. We recognize that construing the scope of entire-record review, in the context of a plain-error assessment of Rehaif trial error, as review extending beyond the trial record (i.e., the evidence before the jury) to include other reliable record information, such as the PSR, is not a universal practice—at least when considering both the third and fourth prongs. See, e.g., United States v. Maez, 960 F.3d 949, 960 (7th Cir. 2020) (“The circuits have taken different approaches to the record for plain-error review of jury verdicts in light of Rehaif.”); see also United States v. Nasir, 982 F.3d 144, 164–65 (3d Cir. 2020) (en banc) (“[C]ourts of appeals that have considered whether the government’s failure to prove the knowledge-of-status element in a 922(g) prosecution is plain error . . . . have reached that result based on their preliminary conclusion that they are permitted to look outside the trial record to find evidence to plug the gap left by the prosecution at trial. The justifications offered for that view are not all of a piece.”). However, the Tenth Circuit does not appear to have opined on this matter in controlling precedent. Consequently, we are content for purposes of resolving this case to follow the parties’ lead. “[A] future panel may need to resolve whether courts in similar circumstances can look beyond the trial record.” United States v. Arthurs, 823 F. App’x 692, 696 n.7 (10th Cir. 2020) (unpublished).
19 Benford, 875 F.3d 1007, 1017 (10th Cir. 2017) (quoting United States v. Duran,
133 F.3d 1324, 1333 (10th Cir. 1998)); accord Samora, 954 F.3d at 1293. Indeed,
in assessing whether there is a reasonable probability that the legal instructional
error affected the outcome in analogous circumstances involving a missing offense
element, we have considered whether the evidence concerning the element was
strong enough that “a jury would be compelled to find” the missing element
satisfied. Benford, 875 F.3d at 1018; see Samora, 954 F.3d at 1294–95
(highlighting Benford’s compelled-to-find language, and concluding that the
evidence was “not sufficient to convince us that the jury would have reached the
same conclusion if properly instructed” and, consequently, that “the instructional
error affected Defendant’s substantial rights”).
Here, “the comparatively weak[] evidence on [the knowledge-of-status
element] undermines our confidence in the outcome,” Benford, 875 F.3d at 1018,
and leaves us unable to conclude that “the jury would have reached the same
conclusion if properly instructed,” Samora, 954 F.3d at 1294. Consequently, we
determine that Mr. Wilson has satisfied the third prong of the plain-error test.
Specifically, as most relevant to our disposition, Mr. Wilson highlights in his
opening brief that there were facts in the record that called into serious question
whether he knew he was a felon at the time of the offense. In this regard, he notes
that “[v]irtually all of [his] prior convictions were juvenile adjudications,” and his
20 only felony adult conviction “occurred when he was 18 years old and resulted in a
sentence to the Youthful Offender Services.” Aplt.’s Opening Br. at 34. And,
given these circumstances, Mr. Wilson contends that “[t]here is significant reason
to believe that [he] might not have interpreted this sentence as one qualifying him a
prohibited person.” Id.
In his reply brief, Mr. Wilson reinforces this argument. He notes that
delinquency adjudications in Colorado are not criminal in nature, and that “Mr.
Wilson is a young man whose ‘criminal’ history consists of juvenile adjudications
in Colorado.” Aplt.’s Reply Br. at 22 (citing C.B. v. People, 122 P.3d 1065,
1065–66 (Colo. App. 2005)). As he reasons, “[t]he question is whether Mr. Wilson
was aware that his sentence to the youthful offender system when he was 18 years
old, was a crime rather than an adjudication,” and he concludes that “[t]here is no
indication that Mr. Wilson understood this distinction.” Id.
In substance, we believe that the foregoing arguments from Mr. Wilson are
persuasive. And, though vigorously presented, the government’s contrary
arguments are unavailing. The key facets of the government’s position are
captured in this passage of its brief:
The violent nature of Wilson’s prior crime, the eight-year sentence he received, the four-year youthful offender system sentence he served, and the advisement that presumably accompanied his guilty plea all leave little doubt that Wilson knew his prior conviction was for “a crime punishable by imprisonment for a term exceeding one year.”
21 Aplee.’s Resp. Br. at 42–43 (quoting 18 U.S.C. § 922(g)(1)).
The government suggests that because Mr. Wilson’s one adult felony
conviction was for a serious violent crime, for which he was sentenced to a lengthy
term of imprisonment (i.e., eight years), a reasonable jury would have concluded
that Mr. Wilson must have known his status as a convicted felon. The government
correctly notes in this regard that the adult felony involved “attempted aggravated
robbery with a deadly weapon” and, more specifically, that Mr. Wilson “robbed a
14-year-old boy at gunpoint, pointing his gun at the boy’s temple.” Id. at 41.
However, the sad truth is that Mr. Wilson has displayed a proclivity for serious
violent conduct, even as a juvenile; his record of juvenile adjudications clearly
attests to this. This record includes adjudications for committing at the early age of
fifteen offenses involving (1) aggravated robbery with a fake pistol, during which
Mr. Wilson purported to brandish a handgun at a store teller, and (2) assault with
reckless infliction of injury, during which Mr. Wilson punched, kicked, and
stomped the victim on his ribs. Therefore, there is a reasonable probability that a
reasonable jury would not find that the violent nature of Mr. Wilson’s adult felony
offense, standing alone, would have alerted him to the fact that he had entered the
criminal big leagues and was now a convicted felon.
Moreover, though Mr. Wilson received a longer sentence of imprisonment
for his adult felony offense—eight years—than he had heretofore ever received for
22 juvenile offenses, the picture of the true character of his offense arguably became
blurry when that eight-year sentence was suspended and he was allowed to
alternatively serve a four-year term in Youthful Offender Services. Mr. Wilson
completed that four-year sentence (with credit for 180 days of time served) under
the wing of Youthful Offender Services, and apparently never served any of his
eight-year prison sentence. This is important and cuts against the idea that Mr.
Wilson would have understood from the magnitude of the punishment he received
for his offense that he was a convicted felon (i.e., subject to being punished by
imprisonment for more than one year).
In roughly analogous circumstances, in holding that the defendant “lacked a
plausible argument that he hadn’t known that his prior conviction was punishable
by more than a year in prison,” we stressed that the defendant “actually served
roughly two years in prison.” Tignor, 981 F.3d at 830–31. There, following his
“conviction on aggravated assault, [the defendant] was sentenced to 10 years of
shock probation.” Id. at 828. However, “the court later revoked probation and
imposed a prison term of 7 years. [The defendant] served about 2 years of that
sentence . . . .” Id. The defendant—in contending that he lacked knowledge that
his conviction was punishable by imprisonment for more than one year (i.e. that he
was a felon)—highlighted that his initial sentence was only to shock probation, and
the seven-year prison sentence only came after the court revoked his probation.
23 Yet, we rebuffed the suggestion that these circumstances undermined the
conclusion that the defendant possessed the requisite knowledge of his prohibited
felon status, noting that the defendant “didn’t just get his probation revoked; he
also spent roughly two years in prison.” Id. at 830; see also id. (noting that the
defendant “presumably wouldn’t forget that he’d spent well over a year in prison
after obtaining the conviction”).
The facts here are quite distinguishable—and in ways that suggest that Mr.
Wilson’s sentence to more than one year of imprisonment for his adult felony
conviction would not have brought home to him, in the way that it did the Tignor
defendant, that he occupied a prohibited status as a convicted felon. Though Mr.
Wilson was sentenced to eight years’ imprisonment for his adult felony conviction,
in virtually the same breath, the court remanded Mr. Wilson to the custody of
Youth Offender Services in lieu of that sentence, and Mr. Wilson never left that
custody—discharging his obligation on his conviction in a juvenile facility, not an
adult prison. Therefore, it cannot be said here, as in Tignor, that Mr. Wilson
“lacked a plausible argument that he hadn’t known that his prior conviction was
punishable by more than a year in prison.” Id. at 831.
In sum, under these unique circumstances, we cannot say that a reasonable
“jury would be compelled to find” that Mr. Wilson knew—based on this eight-year
sentence—that he was a convicted felon. Benford, 875 F.3d at 1018. More to the
24 point, there is a reasonable probability that a reasonable jury would not have found
that he knew his felon status based on the unique circumstances of the sentence the
court imposed for his adult felony. And the cases that the government has
identified do not arise in such unique circumstances. See Aplt.’s Reply Br. at 23
(noting that the government’s authorities “do not address the juvenile/adult,
adjudication/crime distinction”).
Moreover, where those cases have held that the defendants have not satisfied
their prejudice burden at prong three of the plain-error standard, the defendants
actually had served prison terms based on their prior convictions that exceeded one
year. See United States v. Hollingshed, 940 F.3d 410, 415–16 (8th Cir. 2019)
(“[The defendant] pleaded guilty to possession with intent to distribute cocaine in
2001, was sentenced to 78 months’ imprisonment, and was imprisoned for about
four years before he began his supervised release.”), cert. denied, --- U.S. ----, 140
S. Ct. 2545 (2020); United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019)
(“When Defendant possessed the shotgun, he had been convicted of seven felonies
in California state court, including three felonies for which sentences of more than
one year in prison were actually imposed on him . . . . Defendant spent more than
nine years in prison on his various felony convictions before his arrest for
possessing the shotgun.”), cert. denied, --- U.S. ----, 140 S. Ct. 818 (2020).
And, though further removed from these circumstances than Tignor, in
25 finding that a defendant’s showing at the third prong of the plain-error standard
was insufficient, we also have focused on whether the defendant actually served
more than one year in prison. See United States v. Trujillo, 960 F.3d 1196, 1208
(10th Cir. 2020) (“Defendant was convicted of six felonies and sentenced to a term
of 24 years’ imprisonment, with 20 years suspended. Defendant thus served a total
of four years in prison for six felony offenses.” (citation omitted)).
Lastly, regarding the portion of the government’s argument predicated on
“the advisement that presumably accompanied his guilty plea,” the government
highlights that Mr. Wilson’s adult conviction stemmed from a guilty plea, and
“Colorado law precludes a court from accepting a plea unless the defendant
understands the maximum penalty for the offense.” Aplee.’s Resp. Br. at 42.
Thus, the government suggests that a reasonable jury would have found that it is
almost certain that “the state court judge who accepted Wilson’s plea told Wilson
at the time that his crime was punishable by more than a year in prison,” and,
consequently, that Mr. Wilson knew that, as a consequence of his plea, he would
occupy the status of convicted felon. Id. (citing United States v. Burghardt, 939
F.3d 397, 404 (1st Cir. 2019), cert. denied, --- U.S. ----, 140 S. Ct. 2550 (2020)).
We are not persuaded.
To be sure, relying as does the government on the First Circuit’s decision in
Burghardt, we have been open to similar reasoning and, consequently, have
26 considered legally prescribed state court plea practices. Tignor, 981 F.3d at 830
(noting that the defendant “pleaded guilty to aggravated assault” and “Texas law
required the state court to inform him of the possible sentencing range”). However,
in Tignor, such state court practices—involving advising the defendant “of the
possible sentencing range”—were far from dispositive regarding the defendant’s
knowledge of his status as a prohibited felon, even though the authorized range was
more than one year. Id. (noting that the “range was 2 to 20 years’ imprisonment”).
Arguably, it was considerably more important to our holding in Tignor—and,
certainly, it was at least equally as important as the state court plea practices—that
the defendant had in fact “spent roughly two years in prison.” Id.; see also id.
(“Because he actually served roughly two years in prison, he knew that the prior
conviction ultimately led to a prison term of over a year.” (emphases added)). In
other words, it was the fact of the defendant’s actual service of a prison term
exceeding one year that we underscored in determining that the defendant “lacked a
plausible argument that he hadn’t known that his prior conviction was punishable
by more than a year in prison.” Id. at 831. As noted, however, that central fact is
missing here: as a function of the court’s unique sentence for his adult felony
conviction, Mr. Wilson completed a four-year term (with credit for 180 days of
time served) under the wing of Youthful Offender Services, and apparently never
served any of his eight-year prison sentence in an adult penal institution—let alone
27 serve more than one year in such an institution due to his conviction.
Accordingly, irrespective of whether, pursuant to Colorado law, Mr. Wilson
received a proper advisement of the maximum sentence for his adult felony
offense—under the unique circumstance here—we do not believe this factor
significantly avails the government. Stated otherwise, the legal requirements of
Colorado law concerning guilty-plea advisements are not enough—alone or in
combination with the other factors the government identifies—to “convince us that
the jury would have reached the same conclusion if properly instructed.” Samora,
954 F.3d at 1294. More fundamentally, Mr. Wilson has satisfied us that there is a
reasonable probability that—if the jury had been properly instructed—the result of
the proceeding would have been different.
Thus, we conclude that Mr. Wilson satisfies the third prong of the plain-error
standard. And, “[w]hile a district court’s failure to properly instruct the jury
‘won’t always satisfy the fourth prong of the plain-error test,’ when the evidence of
an omitted element is ‘neither overwhelming nor uncontroverted,’ the fourth prong
is met.” Id. at 1295 (quoting Wolfname, 835 F.3d at 1223); see Benford, 875 F.3d
at 1020 (“We concluded the failure to instruct the jury not only affected [the
defendant’s] substantial rights, but also affected the fairness, integrity, or public
reputation of the judicial proceedings ‘because the government’s evidence on intent
was not overwhelming.’” (quoting United States v. Simpson, 845 F.3d 1039,
28 1062–63 (10th Cir. 2017))). That is the state of the evidence here concerning the
omitted knowledge-of-status element: it is not overwhelming. And, notably, the
government relies on “the same reasons,” Aplee.’s Resp. Br. at 44, that we have
found insufficient as to the third prong of the plain-error standard to support its
contention that Mr. Wilson cannot satisfy the fourth prong. Thus, we conclude that
Mr. Wilson has satisfied the fourth prong, too.
In sum, we determine that Mr. Wilson has met the stringent requirements of
the plain-error standard and, therefore, he is entitled to relief as to his felon-in-
possession conviction.7
E
Finally, Mr. Wilson argues that his prior conviction of third-degree assault
under Colorado law was not a “crime of violence” under § 4B1.2(a)(1) of the
Guidelines in light of our decision in United States v. Perez-Vargas, 414 F.3d 1282
(10th Cir. 2005). Whether a prior offense is a crime of violence under the
Guidelines is a question of law that we ordinarily review de novo. See United
States v. Rivera-Oros, 590 F.3d 1123, 1125 (10th Cir. 2009).
Mr. Wilson’s argument might seem quite promising on its face. After all, in
Perez-Vargas, we held that third-degree assault under Colorado law is not a crime
7 In attacking his felon-in-possession conviction based on Rehaif error, Mr. Wilson makes or alludes to a few other lines of argument. In light of our disposition, we have no need to consider the merits of such arguments.
29 of violence under the Guidelines. Yet, Mr. Wilson neglects to note that we
expressly overruled Perez-Vargas in United States v. Ontiveros, 875 F.3d 533, 536
(10th Cir. 2017). In Ontiveros, we concluded that Perez-Vargas was no longer
good law in light of the Supreme Court’s decision in United States v. Castleman,
572 U.S. 157 (2014), which rejected the argument that “one can cause bodily injury
‘without the “use of physical force.”’” Castleman, 572 U.S. at 170 (quoting App.
to Pet. for Cert. 41a). In light of Castleman and Ontiveros, Mr. Wilson simply has
not provided us any credible reason to conclude that a person can commit third-
degree assault under Colorado law without using physical force.
Relatedly, Mr. Wilson also argues for the first time on appeal that
Colorado’s third-degree assault crime does not necessarily involve the use of
physical force because “[b]odily injury” under the relevant state statute includes
“impairment of . . . mental condition.” Colo. Rev. Stat § 18-1-901(3)(c). Mr.
Wilson forfeited this argument before the district court, and because he “did not
present this argument to the district court, . . . our review is limited to plain error.”
United States v. Garcia–Caraveo, 586 F.3d 1230, 1232 (10th Cir. 2009). But Mr.
Wilson fails to argue plain error in either his opening or reply briefs. As noted,
ordinarily, this circumstance sounds the death knell for such a forfeited argument.
See, e.g., Leffler, 942 F.3d at 1196; see also Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its
30 application on appeal . . . surely marks the end of the road for an argument for
reversal not first presented to the district court.”). We therefore deem this
argument effectively waived and do not consider it further. In sum, Mr. Wilson’s
crime-of-violence sentencing challenge fails.
IV
For the foregoing reasons, we affirm in part and reverse in part. We
reject all of Mr. Wilson’s challenges except for his jury-instruction challenge to his
felon-in-possession conviction based on Rehaif. More specifically, as to that
Rehaif instructional challenge, we reverse and remand the case with instructions
to vacate the felon-in-possession conviction and conduct further proceedings
consistent with this order and judgment.
ENTERED FOR THE COURT
Jerome A. Holmes Circuit Judge