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
omitted).
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
omitted).
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.
15