United States v. Wilson

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This order and judgment is not binding precedent, except under the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

31