United States v. Games-Perez

FILED
United States Court of Appeals
Tenth Circuit

January 23, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 11-1011
MIGUEL GAMES-PEREZ,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:10-CR-00263-PAB-1)

John Mosby, Denver, Colorado, Attorney for Appellant.

Ryan T. Bergsieker, Assistant United States Attorney (John F. Walsh, United
States Attorney, with him on the brief) for Appellee.

Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant and appellant Miguel Games-Perez was indicted for possession

of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Claiming that he

was unaware that he was actually a felon, Mr. Games-Perez filed a motion in
limine, seeking a pre-trial ruling that the government was required to prove that

he actually knew he was a felon. When that motion was denied, Mr. Games-Perez

filed a motion to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2),

asking to reserve the right to appeal the district court’s denial of his motion in

limine. The district court granted Mr. Games-Perez’s motion, pursuant to which

he entered a conditional guilty plea. The district court sentenced him to fifty-

seven months’ imprisonment, followed by three years of supervised release.

Mr. Games-Perez appeals his sentence, which we affirm.

BACKGROUND

On July 24, 2009, Mr. Games-Perez plead guilty to felony attempted

robbery in a Colorado state court. In that state court proceeding, Mr. Games-

Perez and the state government filed a motion and stipulation for a deferred

judgment and sentence, which the state court granted. The state court’s order

granting the motion and stipulation stated that entry of judgment would be

deferred for a two-year period. During that time, Mr. Games-Perez would be

supervised by the Colorado Probation Department. Once he had satisfactorily

completed his term of probation, he would be allowed to withdraw his guilty plea

and the charges against him would be dismissed.

The motion and stipulation contained an express provision that “the

Defendant shall not possess any firearms, destructive or dangerous devices or

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weapons.” R. Vol. 1 at 98. Both Mr. Games-Perez and his attorney signed the

motion and stipulation, and Mr. Games-Perez’s signature line was directly

underneath a sentence stating, “I swear or affirm that I have read and understand

this entire document, and every representation I have made is true.” Id. at 99.

Mr. Games-Perez simultaneously filed a request to plead guilty. It

contained the following language:

I understand that if the Court accepts my guilty plea to a felony I will
stand convicted of a felony. I understand that this felony conviction
may be used against me in any future proceedings under the habitual
criminal laws. I also understand that my felony conviction may be
used against me in any future proceeding concerning my credibility.
If I have entered into a Stipulation of a Deferred Judgment and
Sentence, and I have not yet completed the terms of that agreement,
my guilty plea may be used against me in any future proceeding. I
understand if I have entered into a Stipulation of a Deferred
Judgment and Sentence and I violate the terms of that agreement, I
may stand convicted of a felony and then I will be re-sentenced by
the Court.

Id. at 105, ¶ 13. Mr. Games-Perez initialed this paragraph, both Mr. Games-Perez

and his attorney signed the request, and Mr. Games-Perez again averred that he

had read and understood everything in the document.

In the subsequent plea colloquy, the following exchange took place:

THE COURT: Are you comfortable with understanding what
you are giving up and what the consequences are of this plea so that
you want to take this plea today?

THE DEFENDANT: Yes, ma’am.

THE COURT: Here is what will happen today, if I accept your
plea today, hopefully you will leave this courtroom not convicted of

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a felony and instead granted the privilege of a deferred judgment,
which means you will be supervised by the Department of Probation
for a period of two years.
But what I want you to understand is, because you are waiving
your right to proceed to a jury trial for all time today, if something
goes wrong during this deferred judgment and you don’t do what we
ask you to do, it is possible that you could be returned into court and
at that time you can’t ask me to go to a jury trial, do you understand
that?

THE DEFENDANT: Yes, ma’am.

THE COURT: Because you are giving that up for all time and
the likelihood is that you may end up being convicted of this felony
even though you don’t have a trial. Do you understand that?

THE DEFENDANT: Okay, ma’am.

THE COURT: That also means it is a Class 5 felony if you
end up convicted. So it is all up to you. As you can tell what I’m
saying, if you end up convicted, the Court could impose a prison
term between one and three years in the Department of Corrections
with a two-year period of mandatory parole.
Do you understand that that is the worst case scenario and it
could happen in this case?

THE DEFENDANT: Yes, ma’am.

THE COURT: Do you have any questions for me about how
that works?

THE DEFENDANT: No, ma’am.

THE COURT: Have you spent enough time meeting with your
attorneys so that you feel you understand what your options are?

THE DEFENDANT: Yes, ma’am.

THE COURT: Was she able to answer all of your questions to
your satisfaction?

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 THE DEFENDANT: Yes, ma’am.

THE COURT: Are you satisfied with her representation?

THE DEFENDANT: Yes, ma’am.

THE COURT: Are you thinking clearly this morning?

THE DEFENDANT: Yes, ma’am.

Tr. of Providence Hearing/Sentencing, R. Vol. 1 at 32-34. After further colloquy,

the district court then stated, “All right. Then I accept the plea of guilty. I find it

knowing, intelligent and voluntary. I have made written findings consistent with

that determination. I am not entering judgment of conviction at this time,

hopefully, I never will.” Id. at 38.

Finally, the court admonished Mr. Games-Perez to comply with everything

required by the deferred judgment documents, and informed him further:

THE COURT: So please, please, be patient. This is such a
really good offer, I would hate to see you throw this away, because
eventually, if you come back to this courtroom on July 21, 2011, if
you have done everything we have asked you to do, we are going to
dismiss this case; but more importantly, you can have this removed
from your record. It is a big deal. So please take advantage of it,
okay?

THE DEFENDANT: Okay, ma’am.

Id. at 41-42.

On July 27, 2009, following the first meeting between Mr. Games-Perez

and his probation officer, Mr. Games-Perez signed two documents. The first was

a “Waiver of Extradition as a Condition of Probation,” which begins with “I,

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Games-PEREZ, MIGUEL have been convicted of a Felony offense on July 24,

2009[.]” Id. at 116. The second document stipulated the conditions of

Mr. Games-Perez’s probation, and it stated “You shall not possess any firearm,

explosive or other destructive device, or any other dangerous weapon, unless you

obtain written permission from the Court.” Id. at 119. Mr. Games-Perez put his

initials beside this sentence and signed the document.

Less than one year later, on May 9, 2010, Mr. Games-Perez encountered

members of the Denver police force when he was walking away from a park in

Denver where multiple gunshots had apparently just been fired. When the

officers tried to talk to him, he fled. The police caught Mr. Games-Perez, who

was holding one hand up in the air while his other hand held, by the barrel, a fully

loaded Hi-Point .380 caliber pistol with an obliterated serial number. Mr. Games-

Perez was taken into custody.

Upon further investigation, police officers determined that he had been at

the park with an individual whose gunshots hit another person. The caliber of the

firearm recovered from Mr. Games-Perez did not match the caliber of the rounds

found in the wounded individual. This incident led to the felon-in-possession

charge at issue in this case.

On May 13, 2010, Mr. Games-Perez made an initial appearance before a

magistrate judge. After advising him about the charge filed against him and the

maximum penalties possible, the following exchange occurred:

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 THE COURT: . . . I want to tell you about the charges against
you and the rights that you have in this court.

THE DEFENDANT: Yes, ma’am.

THE COURT: You’ve been charged with one count of
possession of a firearm by a previously convicted felon. The penalty
on that count is not more than ten years imprisonment, a $250,000
fine, or both, not more than three years’ of supervised release, and a
$100 special assessment fee.
Do you understand the general nature of the charge against
you?

THE DEFENDANT: Not really, ma’am, but . . .

THE COURT: What part don’t you understand?

THE DEFENDANT: Like why is like a lot of time with the,
you know, the charge? I understand I’m a previous felon.

THE COURT: Yes.

THE DEFENDANT: That goes – like if I get caught with a
firearm, that’s the minimum I get?

THE COURT: Are you asking about the penalty?

THE DEFENDANT: Yeah.

THE COURT: Yes. Yes, this is the penalty that applies for
this charge, which is possession of a firearm by a previously
convicted felon. Yes, it’s not more than ten years . . . .

R. Vol. 1 at 121-22.

Mr. Games-Perez then filed a motion in limine, as stated above, seeking a

pre-trial order that the jury be instructed that the government must prove that he

knew he was a felon at the time of the instant offense. He argued that, because of

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the ambiguity in the colloquy with the state court judge regarding his deferred

conviction, he did not know he was a convicted felon. Thus, although he

acknowledges that our court has expressly held that “the only knowledge required

for a § 922(g) conviction is knowledge that the instrument possessed is a

firearm,” United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996), he argues

his case is distinguishable from Capps and/or Capps was simply wrongly decided.

The district court denied Mr. Games-Perez’s motion in limine, stating,

“Essentially this case is controlled by Capps. Capps stated quite clearly that the

only knowledge required by a Section 922(g) conviction is knowledge that the

instrument possessed is a firearm. And moreover, the Court in Capps was quite

aware of the [United States v.]Langley[, 62 F.3d 602 (4th Cir. 1995)] decision

because the Court in Capps talks about the Langley decision.” Tr. of Hr’g on

Motions at 18, R. Vol. 1 at 171. 1 This appeal followed, in which Mr. Games-

Perez argues the government must prove that he knew he was a convicted felon.

DISCUSSION

18 U.S.C. § 922(g)(1) provides, in relevant part, as follows:

It shall be unlawful for any person . . . who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or foreign

1
Mr. Games-Perez relies heavily on the dissenting and concurring decision
in Langley for his argument that § 922(g) requires the government to prove that
he knew he was a convicted felon. We discuss Langley further, infra.

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 commerce, or possess in or affecting commerce, any firearm or
ammunition which has been shipped or transported in interstate or
foreign commerce.

The statute does not include any conviction “which has been expunged, or set

aside or for which a person has been pardoned or has had civil rights restored.

. . .” 18 U.S.C. § 921(a)(20).

In 1986, Congress enacted the Firearms Owners’ Protection Act (“FOPA”),

Pub. L. 99-308, 100 Stat. 449, which consolidated various laws placing firearm

restrictions on felons. While FOPA did not add a scienter or “mens rea”

requirement to the operative provisions of the statutory scheme (in this case,

§ 922(g)(1)), it did modify the related penalty provisions, 18 U.S.C. § 924(a)(2),

by adding the word “knowingly.” Thus, as modified, § 924(a)(2) now reads,

“whoever knowingly violates subsection (a)(6), (d), (g),(i), (j) or (o) of section

922 shall be fined as provided in this title, imprisoned not more than 10 years, or

both.”

The question presented in this case, and in others, has been whether the

“knowingly” requirement should extend to the element of the statute regarding

felony status, so that a § 922(g)(1) conviction will not stand if the defendant does

not “know” he is a felon. Put another way, the question is whether the

government must prove that the defendant had the requisite scienter or mens rea

regarding his felony status.

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 Our circuit has expressly held that “the only knowledge required for a

§ 922(g) conviction is knowledge that the instrument possessed is a firearm.”

Capps, 77 F.3d at 352 (quoting United States v. Mains, 33 F.3d 1222, 1228 (10th

Cir. 1994)); see also, United Sates v. Flower, 29 F.3d 530, 534 (10th Cir. 1994);

United States v. Shunk, 881 F.2d 917, 921 (10th Cir. 1989). “Indeed, in setting

forth the elements in Shunk, we relied upon United States v. Dancy, 861 F.2d 77,

81 (5th Cir. 1988), where, upon examining the legislative history and statutory

predecessors of § 922(g), the Fifth Circuit explicitly held that the government

need not prove that the defendant had knowledge that he was a felon.” Capps, 77

F.3d at 352. In reaching this conclusion, we expressly relied upon the reasoning

of the Fifth Circuit in Dancy and the Fourth Circuit in Langley.

Most other circuits have been in agreement. See, e.g., United States v.

Olender, 338 F.3d 629, 637 (6th Cir. 2003); United States v. Miller, 105 F.3d 552,

555 (9th Cir. 1997), overruled on other grds, Caron v. United States, 524 U.S. 308

(1998); United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc); United

States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991); United States v. Sherbondy,

865 F.2d 996, 1001 (9th Cir. 1988); Dancy, 861 F.2d 77.

There are, nonetheless, some courts who disagree, and hold a scienter

requirement must be fulfilled, and Mr. Games-Perez not surprisingly relies

heavily on those authorities. See, e.g., Langley, (Phillips, Senior Circuit Judge,

concurring and dissenting); United States v. Matlack, 2010 WL 2682110 (D.

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Colo. July 1, 2010) (unpublished); United States v. Kitsch, 2008 WL 2971548

(E.D. Pa. 2008). These courts have made various, and often overlapping,

arguments in favor of a scienter requirement. They note, for example, that two

Supreme Court decisions, United States v. Staples, 511 U.S. 600 (1994) and

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), require a re-analysis

of the issue.

In Staples, the Supreme Court considered whether there is a scienter

requirement in 26 U.S.C. § 5861(d), which criminalizes the possession of a

“machine gun.” The question presented was whether § 5861(d) required the

government to prove that the defendant knew that the firearm at issue had the

actual characteristics to make it a “machine gun” under the statute. The majority

held it did, noting that “offenses which require no mens rea are generally

disfavored,” and that “some indication of congressional intent, express or implied,

is required to dispense with mens rea as an element of a criminal offense.”

Staples, 511 U.S. at 606.

X-Citement Video, Inc. involved 18 U.S.C. § 2252, which prohibited the

sending or receiving of visual depictions of minors engaged in sexually explicit

conduct. While the statute included the word “knowingly,” the statute, like § 924,

arguably placed the word in such a location that it was unclear whether the

government had to prove that the defendant knew the pictures were of minors,

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rather than adults. The majority held, by use of traditional presumptions and the

dislike of non-mens rea statutes, that the government had to do so.

We expressly rejected these same post-Staples and post-X-Citement Video

arguments in Capps. In doing so, we relied upon the majority opinion in Langley,

which provided three broad grounds for its view that the two cases required no

importation of a scienter requirement into § 922(g)(1) convictions. 2

Besides the Staples/X-Citement Video arguments, the Langley dissent also

engaged in a lengthy analysis of the legislative history of § 922(g) and the

traditional presumptions applied in criminal law to support its view that the

statute contains a scienter requirement. The Kitsch court considered the factual

2
The first reason is that “in contrast to an ordinary citizen possessing a
firearm unaware of its automatic firing capability or trafficking in sexually
explicit materials involving adults, a person convicted of a felony cannot
reasonably expect to be free from regulation when possessing a firearm.” Capps,
77 F.3d at 353 (citing Langley). Second, the statutes at issue in Staples and X-
Citement Video:

did not have long-standing, firmly entrenched, uniform judicial
interpretations that necessitated the application of the presumption
that “Congress acts with knowledge of existing law, and that absent a
clear manifestation of contrary intent, a newly-enacted or revised
statute is presumed to be harmonious with existing law and its
judicial construction.”

Id. (quoting Langley, 62 F.3d at 607-08). We noted that this fact was in contrast
to the statutory predecessors of § 922(g)(1), which “were consistently interpreted
not to require proof of defendant’s knowledge of . . . felony status.” Id. Finally,
we observed that the arguments in the two Supreme Court cases were of a
different nature than those in Capps, in which Capps essentially argued ignorance
of the law, which is an ineffective defense.

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differences between the different decisions. The Matlack court did not engage in

a lengthy analysis, but found its situation distinguishable from that in Capps.

Mr. Games-Perez argues his case is also distinguishable, and therefore not

bound by, Capps. While we express no opinion on the views of the Langley

dissent (having expressly agreed with the Langley majority in Capps) or the

Kitsch or Matlack courts’ discussions of the unique facts presented in those cases,

we do disagree with Mr. Games-Perez’s attempt to distinguish his case from

Capps.

He argues that in Capps, the defendant argued a purely legal question

–“whether a state’s restoration of civil rights nullified [his] known [and] admitted

felonies.” Appellant’s Op. Br. at 9. He claims that he, by contrast, was operating

under a mistaken view of the facts, based upon ambiguities he was told by his

attorney and the judge at the time of his deferred conviction in state court. We

disagree with this view. Mr. Games-Perez was informed repeatedly, both orally

and in writing, that he needed to follow all the provisions of his probation if he

wished to take advantage of the opportunity to have his felony conviction erased.

He was told repeatedly, both orally and in writing, that possession of a firearm

was a clear violation of his probation.

So, regardless of whatever else Mr. Games-Perez may have thought, it was

pellucidly clear to him that he could not violate his probation, by possessing a

firearm, and escape the consequences of his felony conviction. He was expressly

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told those consequences could include affecting a subsequent conviction. He

informed the court that he had talked at length to his attorney about the matter,

and the court repeatedly asked him about his understanding of the proceedings, to

which he assured the court of his understanding. Thus, Mr. Games-Perez knew,

as a matter of fact, that he was losing the benefit of his bargain when he picked

up a gun while on probation. He just did not know the legal consequences of

it–up to ten years in federal prison. That is simply ignorance of the law, which,

as in Capps, has never excused disobeyance of a law. Capps directly controls on

that matter and binds us to affirm the denial of Mr. Games-Perez’s motion in

limine.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision.

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11-1011, United States v. Games-Perez

GORSUCH, J., Circuit Judge, concurring in the judgment.

Our duty to follow precedent sometimes requires us to make mistakes.

Unfortunately, this is that sort of case. In United States v. Capps, 77 F.3d 350

(10th Cir. 1996), this court considered 18 U.S.C. §§ 922(g) & 924(a) and their

collective rule forbidding felons from keeping guns, ultimately holding that “the

only knowledge required for a [criminal] conviction is knowledge that the

instrument possessed is a firearm.” Id. at 352-53 (quotation omitted). In the case

before us, Mr. Games-Perez concedes he knowingly possessed a firearm but

protests that he had no idea he was a convicted felon. In light of Capps this is an

easy case and we must affirm the conviction because Mr. Games-Perez’s protests,

whatever their merit, are beside the point. As my colleagues rightly observe, it

matters not at all under Capps whether Mr. Games-Perez ever knew about his

felon status. But just because our precedent indubitably commands this result

doesn’t mean this result is indubitably correct.

The first of Capps’s several problems is perhaps the most apparent but least

consequential. Should a defendant try to disprove knowledge of his felony status,

Capps says there is a “vast difference” between a lack of knowledge caused by a

mistake of fact and one caused by a mistake of law. Capps, 77 F.3d at 353. But

trying to distinguish what qualifies as a mistake of fact rather than one of law is a
weary and wasteful business. In describing this mistaken mess, Professor Wayne

LaFave got it just right:

No area of the substantive criminal law has traditionally been surrounded
by more confusion than that of ignorance or mistake of fact or law. . . . In
actuality, the basic rule is extremely simple: ignorance or mistake of fact or
law is a defense when it negatives the existence of a mental state essential
to the crime charged. . . . Instead of speaking of ignorance or mistake of
fact or law as a defense, it would be just as easy to note simply that the
defendant cannot be convicted when it is shown that he does not have the
mental state required by law.

1 Wayne LaFave, Substantive Criminal Law § 5.6(a), at 394-95 (2d ed. 2003); see

also Model Penal Code § 2.04(1). Exactly so. Either a mistake “of law” or one

“of fact” can preclude a criminal conviction so long as the mistake negates the

mens rea required for the offense in question.

Moving a step closer to the heart of the problem, Capps’s walkabout in the

land of mistakes turns out to be needless. After (and before) talking about the

relative importance of a defendant’s mistake of law or fact concerning his felony

status, Capps unambiguously holds that a defendant’s knowledge of his felony

status is inessential to secure a conviction. Id. at 352-53. So all its discussion

about a defendant who mistakes his felon status either as a matter of law or fact

isn’t just mistaken. It is simply neither here nor there.

And this takes us to the nub of the matter. Capps’s holding — that the

government doesn’t have to prove a defendant knew he was a felon — simply

can’t be squared with the text of the relevant statutes. Section 922(g)(1) makes

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unlawful the possession of a gun when three elements are met — (1) the

defendant was previously convicted of a felony, (2) the defendant later possessed

a firearm, and (3) the possession was in or affecting interstate commerce. But

§ 922(g) doesn’t send anyone to prison for violating its terms. That job is left to

§ 924(a)(2), which authorizes prison terms for “[w]hoever knowingly violates”

§ 922(g). Despite this, Capps reads the word “knowingly” as leapfrogging over

the very first § 922(g) element and touching down only at the second. This

interpretation defies linguistic sense — and not a little grammatical gravity.

Ordinarily, after all, when a “criminal statute . . . introduces the elements of a

crime with the word ‘knowingly,’” we “apply[] that word to each element.”

Flores-Figueroa v. United States, 129 S. Ct. 1886, 1891 (2009) (emphasis added).

Neither can I see a way around the problem. To be sure, statutory mens rea

requirements are not always read to apply to “jurisdictional” elements like the

final, interstate commerce element in § 922(g). But, just as surely, that rule of

interpretation supplies courts with no license to ignore the applicability of

§ 924(a)’s mens rea requirement to § 922(g)’s first — plainly essential, not

merely jurisdictional — element. See, e.g., United States v. X-Citement Video,

Inc., 513 U.S. 64, 72 & n.3 (1994); United States v. Prince, 647 F.3d 1257, 1267-

68 (10th Cir. 2011).

Nor is this a case where some other complicating feature of statutory

context suggests that § 924(a)’s mens rea requirement might apply only to the

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firearm possession element. See Flores-Figueroa, 129 S. Ct. at 1895 (Alito, J.,

concurring). This isn’t, for example, a situation where “knowingly” begins a long

statutory phrase containing several elements and a reasonable question arises how

far into the thicket the “knowingly” adverbial modifier extends. If the statute

before us had said “whoever knowingly possesses a firearm after being convicted

of a crime,” it might be possible to argue that “knowingly” modifies only

“possesses a firearm” and not the later prepositional phrase, “after being

convicted of a crime.” But that’s just not the grammar we face here. Here,

Congress gave us three elements in a particular order. And it makes no sense to

read the word “knowingly” as so modest that it might blush in the face of the very

first element only to regain its composure and reappear at the second.

To be fair to Capps, it rested its holding on the Fourth Circuit’s majority

opinion in United States v. Langley, 62 F.3d 602 (4th Cir. 1995) (en banc). So

maybe we should turn there for some answer to Capps’s plain language problem.

But doing so only reveals another dead end. As it turns out, the Langley majority

and dissent wage an epic battle not on the field of plain language but

congressional intent. And their extensive back-and-forth barrages ultimately

serve to illustrate only that the relevant legislative history is stocked with ample

artillery for everyone. The Langley fight is hard fought, each inch of the

historical terrain is heavily contested, but in the end almost no ground is taken by

either side. Both offer entirely plausible readings of the legislative record.

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 Worse still, in the heat and smoke generated in Langley’s battle over

congressional intent an elemental rule of interpretation gets lost. Whatever

Congress’s intent may have been, any statutory interpretation must take

reasonable account of the language Congress actually adopted. See, e.g.,

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our inquiry must cease if

the statutory language is unambiguous and the statutory scheme is coherent and

consistent.”) (internal quotation marks omitted). Yet, Langley nowhere pauses to

explain how it might be possible as a matter of plain language to read

“knowingly” as modifying only the second of § 922(g)’s enumerated elements,

skipping the first element altogether.

Without any help from Langley on our plain language problem, I suppose

we might consider trying to rescue Capps by resorting to the absurd results

doctrine, asking whether some implausible result might follow from (and thus

perhaps allow us to overcome) the statute’s clear textual direction. See, e.g.,

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6

(2000) (discussing absurd results doctrine).

But it’s hard to see how that might be the case here. Following the

statutory text would simply require the government to prove that the defendant

knew of his prior felony conviction. And there’s nothing particularly strange

about that. After all, there is “a long tradition of widespread lawful gun

ownership by private individuals in this country,” and the Supreme Court has held

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the Second Amendment protects an individual’s right to own firearms and may

not be infringed lightly. Staples v. United States, 511 U.S. 600, 610 (1994);

District of Columbia v. Heller, 554 U.S. 570 (2008). At the same time, of course,

the Court has expressly indicated that laws dispossessing felons are consistent

with the Constitution. Heller, 554 U.S. at 626; but see United States v. McCane,

573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring)

(questioning the Court’s analysis on this score). And given all this, it is hardly

crazy to think that in a § 922(g)(1) prosecution Congress might require the

government to prove that the defendant had knowledge of the only fact (his felony

status) separating criminal behavior from not just permissible, but constitutionally

protected, conduct.

In fact, this result isn’t just plausible, it is presumptive. The Supreme

Court has long held that courts should “presum[e]” a mens rea requirement

attaches to “each of the statutory elements that criminalize otherwise innocent

conduct,” and following this rule the Court has often enforced a mens rea

requirement even when none appears in the statutory language. X-Citement

Video, 513 U.S. at 72; see also Staples, 511 U.S. at 610-12; Morissette v. United

States, 342 U.S. 246, 250-53 (1952). How can it be that courts elsewhere read a

mens rea requirement into statutory elements criminalizing otherwise lawful

conduct, yet when Congress expressly imposes just such a mens rea requirement

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in §§ 922(g) and 924(a) we turn around and read it out of the statute? Here again,

Capps offers no good explanation for its topsy turvy result.

At the end of all this one might ask if Capps’s error makes any difference

to the outcome of this particular case. After all, as the majority notes, there’s a

certain amount of evidence suggesting that Mr. Games-Perez was aware he had a

felony conviction. But even assuming some sort of harmless error analysis

applies to conditional guilty plea appeals like this one, see United States v.

Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005) (majority and dissent discussing

this question), there’s simply not enough evidence to call the error here harmless.

While it’s true that Mr. Games-Perez signed two documents acknowledging he

was a felon, the state court explicitly told him otherwise: “if I accept your plea

today, hopefully you will leave this courtroom not convicted of a felony and

instead granted the privilege of a deferred judgment.” R. Vol. 1 at 32 (emphasis

added). Then, after accepting Mr. Games-Perez’s plea, the court returned to and

reemphasized the point, adding “I am not entering judgment of conviction at this

time, hopefully, I never will.” Id. at 38. Surely in these circumstances a triable

question exists whether or not Mr. Games-Perez had the requisite knowledge that

his deferred judgment was a felony conviction.

I recognize that precedent compels me to join the court’s judgment. But

candor also compels me to suggest that we might be better off applying the law

Congress wrote than the one Capps hypothesized. It is a perfectly clear law as it

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is written, plain in its terms, straightforward in its application. Of course, if

Congress wishes to revise the plain terms of § 922(g) and § 924(a), it is free to do

so anytime. But there is simply no right or reason for this court to be in that

business.

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