United States v. Justin Werle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-36005
Plaintiff-Appellee,
D.C. Nos.
v. 2:20-cv-00184-WFN
2:14-cr-00041-WFN-1
JUSTIN CURTIS WERLE,
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted October 4, 2021
Seattle, Washington

Filed June 3, 2022

Before: A. WALLACE TASHIMA, MILAN D. SMITH,
JR., and JACQUELINE H. NGUYEN, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 UNITED STATES V. WERLE

SUMMARY *

28 U.S.C. § 2255

The panel vacated the district court’s summary denial of
a 28 U.S.C. § 2255 motion in which Justin Curtis Werle
seeks to vacate his felon-in-possession-of-a-firearm
conviction under 18 U.S.C. §§ 924(a)(2) and 922(g)(1), and
remanded for an evidentiary hearing.

Werle sought to vacate the conviction because he pled
guilty without being informed of the mens rea element
announced in Rehaif v. United States, 139 S. Ct. 2191
(2019)—i.e., that the Government must prove not only that
the defendant knew he possessed a firearm, but also that he
knew he was a felon when he possessed the firearm. Since
Werle did not challenge the omission of this element in the
district court or on direct appeal, his claim is procedurally
defaulted, such that the district court may not consider the
merits of the claim unless Werle can overcome the default
by showing (1) cause for not raising the error sooner; and
(2) prejudice, which means a reasonable probability that
Werle would not have pled guilty had he been properly
informed of the elements of the offense.

The district court summarily denied the motion without
supplementing the record, holding an evidentiary hearing, or
making factual findings. In doing so, the district court
necessarily concluded that the motion and the files and
records of the case conclusively show that Werle is entitled
to no relief. The district court reasoned that because Werle
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. WERLE 3

had been sentenced to one year and one day in prison five
years before possessing the firearm at issue, he could not
establish prejudice.

The panel held that the district court’s summary denial
was erroneous.

The panel wrote that, as the parties agreed, the district
court erred by applying plain-error analysis.

The panel held that Werle established cause necessary to
overcome the procedural default because any argument that
the Government was required to prove he knew he had been
convicted of a crime punishable by more than one year in
prison at the time he possessed the firearm would have been
futile at the time he pled guilty, when every court to address
that argument had rejected it. In so holding, the panel
rejected the Government’s argument that Bousley v. United
States, 523 U.S. 614 (1998), overruled Reed v. Ross, 468
U.S. 1 (1984), in which the Supreme Court held that the
cause requirement may be satisfied under certain
circumstances, including when the Supreme Court overturns
a longstanding and widespread practice to which the
Supreme Court has not spoken, but which a near-unanimous
body of lower court authority has expressly approved.

Before analyzing the parties’ prejudice arguments, the
panel wrote that in the context of a § 2255 motion,
procedural default is an affirmative defense, and the district
court may deny the petition without a hearing only if the
record conclusively establishes the defendant cannot
overcome the procedural default. The panel held that the
record in this case does not conclusively establish prejudice.
Rejecting the Government’s specific arguments, the panel
held (1) neither the fact that Werle was sentenced to more
4 UNITED STATES V. WERLE

than one year in prison, nor his acknowledgment at his
sentencing hearing that he had been “convicted of felonies,”
is conclusive evidence that he would have pled guilty even
if he were informed of all of the elements of the offense; and
(2) the potential loss of an acceptance-of-responsibility
reduction is not so great that it alone conclusively establishes
that Werle would have pled guilty to the felon-in-possession
count even if he were properly informed of the of the
elements of the offense.

Emphasizing that its discussion is not meant to suggest
that the district court must reach a particular conclusion, the
district court remanded for an evidentiary hearing.

COUNSEL

Houston Goddard (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.

Timothy J. Ohms (argued), Assistant United States
Attorney; Joseph H. Harrington, Acting United States
Attorney; United States Attorney’s Office, Spokane,
Washington; for Plaintiff-Appellee.
 UNITED STATES V. WERLE 5

OPINION

M. SMITH, Circuit Judge:

In Rehaif v. United States, 139 S. Ct. 2191 (2019), the
Supreme Court held that for firearm-possession prosecutions
pursuant to 18 U.S.C. § 924(a)(2) and § 922(g), the
Government must prove “that the defendant knew he
possessed a firearm and also that he knew he had the relevant
status [under § 922(g)] when he possessed it.” Id. at 2194.
This means that for prosecutions under § 924(a)(2) and
§ 922(g)(1), which are colloquially referred to as felon-in-
possession prosecutions, “the Government must prove not
only that the defendant knew he possessed a firearm, but also
that he knew he was a felon when he possessed the firearm.”
Greer v. United States, 141 S. Ct. 2090, 2095 (2021). By
interpreting the statute this way, the Supreme Court upended
the unanimous and well-settled law of at least ten circuit
courts of appeals, which had held for decades that the
Government need not prove that a defendant knew of his
status. See Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J.,
dissenting) (collecting cases); see also United States v.
Miller, 105 F.3d 552, 555 (9th Cir. 1997) (“We agree with
the decisions from other circuits that the § 924(a) knowledge
requirement applies only to the possession element of
§ 922(g)(1), not . . . to felon status.”).

In response, Justin Werle moved to vacate his conviction
for violating § 924(a)(2) and § 922(g)(1) because he pled
guilty without being informed of the mens rea element the
Supreme Court announced in Rehaif. Since Werle did not
challenge the Government or the district court’s omission of
this element in the district court or on direct appeal, his claim
is procedurally defaulted, meaning that the district court may
not consider the merits of the claim unless Werle can
overcome the default. See United States v. Pollard, 20 F.4th
6 UNITED STATES V. WERLE

1252, 1255–56 (9th Cir. 2021). One way to overcome a
procedural default is by showing cause for not raising the
error sooner and prejudice, which, in this context, means a
reasonable probability that Werle would not have pled guilty
had he been properly informed of the elements of the
offense. See id. 1

The district court summarily denied Werle’s motion
without supplementing the record, holding an evidentiary
hearing, or making factual findings. In doing so, the district
court necessarily concluded that “the motion and the files
and records of the case conclusively show that [Werle] is
entitled to no relief.” 28 U.S.C. § 2255(b). The district court
reasoned that because Werle had been sentenced to one year
and one day in prison five years before possessing the
firearm at issue here, he could not establish prejudice. We
hold that the district court’s summary denial of Werle’s
motion was erroneous.

I

On December 26, 2013, the Spokane Police Department
received a report that Justin Werle, who police knew to be a
felon, was in possession of a weapon. When officers located
him, they observed a brown wooden handle of a firearm
sticking out of his jacket pocket. The officers removed the
firearm and determined it was a Savage/Stevens 12 gauge
short-barreled shotgun with an obliterated serial number.

1
“Alternatively, a petitioner can show actual innocence to overcome
procedural default.” Pollard, 20 F.4th at 1256 n.2. Werle argued in the
district court that he could show that he is actually innocent, but did not
raise that argument in his opening brief on appeal, so we do not address
it.
 UNITED STATES V. WERLE 7

Werle was indicted for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 924(a)(2) and
§ 922(g)(1), and for possessing an unregistered firearm, in
violation of 26 U.S.C. § 5861(d). He pled guilty to both
counts. Five years later, the Supreme Court decided Rehaif,
in which it held that “in a prosecution under 18 U.S.C.
§ 922(g) and § 924(a)(2), the Government must prove both
that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred
from possessing a firearm.” 139 S. Ct. at 2200. Thus, for
prosecutions pursuant to § 922(g)(1), the Government must
prove that the defendant knew that he had been convicted of
a crime “punishable by imprisonment for a term exceeding
one year,” § 922(g)(1), “when he possessed” the firearm,
Rehaif, 139 S. Ct. at 2194. See also Greer, 141 S. Ct. at 2095.

Because Rehaif had not yet been decided and we had
held that the Government need not prove the defendant’s
knowledge of his status, the Government did not include this
element in Werle’s indictment, and neither Werle’s attorney
nor the district court informed him of it. After the Supreme
Court decided Rehaif, Werle filed a motion pursuant to
28 U.S.C. § 2255 arguing, among other things, that his plea
was not knowing and voluntary because he was not informed
of all of the elements of the offense before pleading guilty.
See Bousley v. United States, 523 U.S. 614, 618–19 (1998).

The Government argued that the district court could not
reach the merits of Werle’s claim because he had not raised
the Rehaif error at trial or on direct appeal. Werle argued that
the court could reach the merits of the claim because he
could show cause and prejudice necessary to overcome the
procedural default. Because he had not served more than one
year in prison, Werle contended, it was “at least plausible”
that he did not recall that his sentences were longer than one
8 UNITED STATES V. WERLE

year, and therefore there was a reasonable probability that he
would have proceeded to trial on the felon-in-possession
count.

Without holding an evidentiary hearing, the district court
denied Werle’s motion in a two-page order. Applying plain-
error analysis, the district court held that Werle was not
entitled to relief because five years before he possessed the
firearm at issue here a state court sentenced Werle to one
year and one day in prison, and Werle signed a document
entitled “Felony Judgment and Sentence” that listed his
sentence. Therefore, the district court held, “a jury would
conclude that, Mr. Werle knew, or should have known, he
had been convicted of a crime punishable by more than a
year.” The district court also held that the fact that Werle
served only seven months and two days of that sentence was
“inapposite” because Rehaif does not require that a
defendant actually serve more than one year in prison. The
district court issued a certificate of appealability, and Werle
timely appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and § 2253(a). We review the district court’s denial
of Werle’s § 2255 motion de novo and its denial of an
evidentiary hearing for abuse of discretion. United States v.
Chacon-Palomares, 208 F.3d 1157, 1158 (9th Cir. 2000).

II

On appeal, the parties agree that the district court erred
by applying plain-error analysis, and they are correct. We
apply plain-error review when a defendant urges us on direct
appeal to correct an error the defendant did not raise in the
district court. See Fed. R. Crim. P. 52(b); United States v.
Frady, 456 U.S. 152, 162–64 (1982). But when a defendant
raises an error for the first time on collateral review, the
defendant must generally show cause for not raising the error
sooner and actual prejudice resulting from the error before a
 UNITED STATES V. WERLE 9

court can consider the claim on the merits. Id. at 167–68.
Therefore, the district court applied the wrong legal
standard. See id. at 166.

The Government argues that we may affirm the district
court’s judgment on other grounds because Werle cannot
establish cause sufficient to overcome his procedural default,
and even if he could, he cannot show that he was prejudiced.

A

Werle argues that he has demonstrated cause because
any argument that the Government was required to prove he
knew he had been convicted of a crime punishable by more
than one year in prison at the time he possessed the firearm
“would have been futile in 2014” because “every court to
address [this] argument had rejected it.” The Government
responds that the Supreme Court has “flatly rejected . . .
futility of a claim, by itself, as sufficient cause to excuse a
procedural default.” We agree with Werle.

The Supreme Court first addressed what constitutes
cause to overcome a procedural default in Engle v. Isaac,
456 U.S. 107 (1982). In Isaac, the Court held that “the
futility of presenting an objection to the state courts cannot
alone constitute cause for a failure to object at trial.” Id.
at 130. The Court reasoned that a state court that has
previously rejected an argument might change its mind, and
that recognizing futility as cause might encourage litigants
to deliberately “bypass the state courts” whenever they
believe the federal courts will be more amenable to their
claims. Id. Allowing them to do so would deprive the states
of any “chance to mend their own fences and avoid federal
intrusion.” Id. at 129. Therefore, the Court held that
“perceived futility alone cannot constitute cause.” Id. at 130
n.36.
10 UNITED STATES V. WERLE

Two years later, the Court backed away from this
categorical language. It held in Reed v. Ross, 468 U.S. 1
(1984), that “the cause requirement may be satisfied under
certain circumstances when a procedural failure is not
attributable to an intentional decision by counsel made in
pursuit of his client’s interests.” Id. at 14. A defendant’s
“failure to raise a claim for which there was no reasonable
basis in existing law” is one such circumstance because it
“does not seriously implicate any of the concerns that might
otherwise require deference to a State’s procedural bar.” Id.
at 15. The Court identified a non-exhaustive list of situations
that would qualify: (1) when the Supreme Court “explicitly”
overrules one of its precedents, (2) when the Supreme Court
“overturn[s] a longstanding and widespread practice to
which [the] Court has not spoken, but which a near-
unanimous body of lower court authority has expressly
approved,” and (3) when the Supreme Court “disapprove[s]
a practice [it] arguably has sanctioned in prior cases.” Id. at
17 (cleaned up). The Court held that “when a case falling
into one of the first two categories is given retroactive
application, there will almost certainly have been no
reasonable basis upon which an attorney previously could
have urged a state court to adopt the position that [the
Supreme] Court ultimately adopted.” Id. Therefore, “the
failure of a defendant’s attorney to have pressed such a claim
before a state court is sufficiently excusable to satisfy the
cause requirement.” 2 Id.

This case falls into the second category. At the time
Werle pled guilty, all ten circuits that had addressed the

2
Although Isaac and Reed involved habeas petitions pursuant to
28 U.S.C. § 2254 based on state convictions, the Supreme Court has
applied the same framework to a § 2255 motion based on a federal
conviction. See, e.g., Bousley, 523 U.S. at 622–23.
 UNITED STATES V. WERLE 11

issue, including our court, had held that the Government was
not required to prove that a defendant knew of his status as
a felon at the time the defendant possessed the firearm. See
Rehaif, 139 S. Ct. at 2210 n.6 (Alito, J., dissenting)
(collecting cases). By that time, at least six circuits had been
unified on this issue for nearly seventeen years. See id.
Under these circumstances, there was no reasonable basis for
Werle to have argued that the Government was required to
prove that he knew of his status as a felon at the time he
possessed the firearm. See Reed, 468 U.S. at 17.

The Government argues that the Supreme Court
overruled Reed in Bousley v. United States, 523 U.S. 614
(1998). There, like here, a defendant argued in a § 2255
motion that his guilty plea was not knowing and voluntary
because the Supreme Court construed the statute under
which he was convicted more narrowly after his conviction
became final. See id. at 616–18. The defendant argued that
he could demonstrate cause for his failure to raise the issue
sooner because he believed that the Eighth Circuit had
previously rejected his argument. See id. at 623; Brief for
Petitioner at 35, Bousley v. United States, 523 U.S. 614
(1998) (No. 96-8516), 1997 WL 728537, at *35. The
Supreme Court held that the alleged futility of raising the
argument did not constitute cause for his failure to object. Its
entire analysis of the issue was as follows:

As we clearly stated in Engle v. Isaac,
456 U.S. 107, 102 S. Ct. 1558, 71 L.Ed.2d
783 (1982), “futility cannot constitute cause
if it means simply that a claim was
‘unacceptable to that particular court at that
particular time.’”
12 UNITED STATES V. WERLE

Id. at 623 (quoting Isaac, 456 U.S. at 130 n.35). The
Government argues that this language overruled Reed.

But Bousley did not analyze, much less overrule, Reed.
Indeed, Bousley cited Reed only once, and only for the
proposition that a defendant may establish cause for a
procedural default if the legal basis for the claim was not
reasonably available at the time it should have been raised.
See Bousley, 523 U.S. at 622. We are “bound to follow a
controlling Supreme Court precedent until it is explicitly
overruled by that Court.” Nunez-Reyes v. Holder, 646 F.3d
684, 692 (9th Cir. 2011) (citation omitted). The Supreme
Court did not explicitly overrule Reed in Bousley, and it has
not done so since.

Even if we were permitted to assume that the Supreme
Court implicitly overruled Reed, we would not do so based
on Bousley because Reed and Bousley co-exist comfortably.
After Bousley, futility cannot constitute cause when it means
“simply that a claim was ‘unacceptable to [a] particular court
at [a] particular time,’” Bousley, 523 U.S. at 623, but futility
can constitute cause if it means that a claim has been
unacceptable to a near-unanimous body of lower courts for
a sustained period, see Reed, 468 U.S. at 17. See also
Pollard, 20 F.4th at 1262 (Forrest, J., concurring)
(explaining that Bousley did not address a situation “where a
claim has been uniformly rejected by every circuit to
consider it for a sustained period of time”).

We therefore hold that Werle has established cause
necessary to overcome the procedural default. Because
Werle has established cause, we turn to whether he can
establish prejudice.
 UNITED STATES V. WERLE 13

B

Before analyzing the parties’ prejudice arguments, it is
important to first understand the procedural posture of this
case. When a defendant files a § 2255 motion, the district
court must determine whether “the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). If they do not, the
court must order the Government to answer the motion and,
if necessary, hold an evidentiary hearing and make factual
findings sufficient to rule on the motion. 3 Id.; see also
Rules 4(b), 7, 8 of the Rules Governing Section 2255
Proceedings for the United States District Courts (2255
Rules).

In the context of a § 2255 motion, procedural default is
an affirmative defense. See United States v. Withers,
638 F.3d 1055, 1064 (9th Cir. 2011). That means the
defendant does not bear the burden of pleading cause and
prejudice in his motion. Id. Instead, the Government bears
the burden of raising the procedural default defense. Id.
Once the Government establishes a defendant’s procedural
default, the burden shifts to the defendant to demonstrate
cause and prejudice sufficient to overcome it. See Bousley,
523 U.S. at 622. Only if the record conclusively establishes
the defendant cannot overcome the procedural default, may

3
District courts may also obtain necessary evidence without holding
an evidentiary hearing by directing the parties “to expand the record by
submitting additional materials.” 2255 Rule 7(a). But “[w]hen the issue
is one of credibility, resolution on the basis of affidavits can rarely be
conclusive.” Blackledge v. Allison, 431 U.S. 63, 82 n.25 (1977) (quoting
Advisory Committee’s Note to 1976 adoption of Rule 7 of the Rules
Governing Section 2254 Cases in United States District Courts).
14 UNITED STATES V. WERLE

the district court deny the petition without a hearing. See
28 U.S.C. § 2255(b).

To establish prejudice, Werle must demonstrate a
reasonable probability that he would have proceeded to trial
had he been properly informed of the elements of the
offense. Pollard, 20 F.4th at 1256. Whether there is a
reasonable probability a defendant would have proceeded to
trial is a factual question that often depends on evidence
outside the record, such as what influenced the defendant’s
decision to plead guilty. See Lee v. United States, 137 S. Ct.
1958, 1966 (2017) (holding that the prejudice inquiry in this
context “focuses on a defendant’s decisionmaking”).
Therefore, an evidentiary hearing may be required to
determine whether a defendant would have proceeded to trial
if he were fully informed of the elements of the offense. See
id. at 1963, 1967–68 (examining testimony from the
defendant and defendant’s plea-stage counsel regarding the
defendant’s decision to plead guilty); United States v.
Manzo, 675 F.3d 1204, 1210 (9th Cir. 2012) (reversing and
remanding because the “record [did] not contain the
historical views of defense counsel or of Manzo” regarding
“whether if correctly advised Manzo would have pleaded
guilty anyway”); Iaea v. Sunn, 800 F.2d 861, 865–66 (9th
Cir. 1986) (remanding “for an evidentiary hearing to
determine whether there is a reasonable probability Iaea
would not have pled guilty absent counsel’s erroneous
advice”). We therefore decide only whether the district court
abused its discretion by summarily denying Werle’s motion
without holding an evidentiary hearing. We do not (and
cannot) decide at this stage whether Werle is entitled to
relief. See Machibroda v. United States, 368 U.S. 487, 495
(1962) (“Not by the pleadings and the affidavits, but by the
whole of the testimony, must it be determined whether the
petitioner has carried his burden of proof and shown his right
 UNITED STATES V. WERLE 15

to a discharge.”) (quoting Walker v. Johnston, 312 U.S. 275,
287 (1941)).

The Government argues that the district court’s summary
denial was proper because there is “overwhelming” evidence
that Werle knew he had been convicted of a crime
punishable by more than one year in prison at the time he
possessed the firearm, and no rational person in Werle’s
circumstances would have risked forfeiting a three-level
Sentencing Guidelines reduction for acceptance of
responsibility by proceeding to trial. We disagree. While
some people in Werle’s circumstances might rationally
choose to plead guilty, others might rationally choose to go
to trial. To determine which category Werle falls into, the
district court must hold an evidentiary hearing.

1

The Government first argues that the record conclusively
establishes Werle would not have gone to trial because there
is “overwhelming evidence” that he knew that he had been
convicted of a crime punishable by more than one year in
prison at the time he possessed the firearm. We disagree.

Recall that the Government was required to prove
beyond a reasonable doubt that Werle knew, at the time he
possessed the firearm on December 26, 2013, that he had
been convicted of a crime punishable by more than one year
in prison. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); Rehaif,
139 S. Ct. at 2200. That he knew that he had been convicted
of a crime or that he was not supposed to possess a firearm
do not suffice. 4 What matters is whether Werle knew that the

4
There are many reasons one might be prohibited from possessing
a firearm. For example, individuals who are dishonorably discharged
16 UNITED STATES V. WERLE

maximum potential sentence to which he was exposed for
his previous crimes exceeded one year in prison. See
18 U.S.C. § 922(g)(1); Rehaif, 139 S. Ct. at 2194; United
States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019).

The Supreme Court has recognized that this is the kind
of information one might be unaware of or forget. See Greer,
141 S. Ct. at 2097 (“Of course, there may be cases in which
a defendant who is a felon can make an adequate showing
. . . that he would have presented evidence in the district
court that he did not in fact know he was a felon when he
possessed firearms.”); Rehaif, 139 S. Ct. at 2198 (observing
that “a person who was convicted of a prior crime but
sentenced only to probation” might not know that he was a
felon). Werle may have been able to make a colorable
argument at trial that this is what happened to him.

By the time he possessed the firearm on December 26,
2013, Werle had been convicted of at least twenty crimes.
However, the parties agree that only two of those convictions
qualify as § 922(g)(1) predicates. And although Werle was
sentenced to one year and one day in prison for each of them,

from the military, addicted to controlled substances, or who have been
convicted of misdemeanor domestic violence crimes may not possess
firearms. See 18 U.S.C. § 922(g)(3), (6), (9). Thus, the fact that a
defendant knows that he may not possess a firearm is not conclusive
evidence that he knows that he has been convicted of a crime punishable
by more than one year in prison.

In Pollard, we cited the fact that the defendant admitted he
“possessed a firearm [he] wasn’t supposed to have” as evidence that he
knew of his status, but we did not hold that that evidence standing alone
was conclusive. 20 F.4th at 1257. Further, the defendant’s statement in
Pollard was unusually probative because the defendant acknowledged
that the reason he “wasn’t supposed to have” a firearm was because he
was “a felon” and he “didn’t have the right to have it no more.” Id.
 UNITED STATES V. WERLE 17

he served less than a year of each sentence (215 and
288 days), and his most recent felony sentencing hearing
was nearly two years before he possessed the firearm at issue
here. If Werle misremembered the length of these sentences
as slightly less than one year and one day in prison or as the
time he actually served in prison, he would not have the mens
rea necessary for a jury to convict. Further, Werle alleged
that he “suffered irreversible brain damage as a young
child,” which may have affected his memory. 5 Indeed, at his
federal sentencing hearing the district court asked Werle
about his first qualifying conviction and Werle said, “I don’t
[remember] off the top of my head the length of it. I do
remember that there was a plea attached to that . . . . I do
believe it was a sign-and-get-out-that-day type of deal.”
This, of course, is incorrect—Werle was sentenced to
366 days in prison and served 215 days. In sum, that Werle
may have forgotten that he was sentenced to more than one
year in prison two and five years after his sentencing
hearings is not so implausible that we can conclude that the
record conclusively establishes he would have pled guilty
even if he were fully informed of the elements of the offense.

5
Werle cited to the PSR which states that Werle “experienced a
grand mal seizure” when he was 18 months old and “he was provided an
adult dose of Phenobarbitol which resulted in him suffering brain
damage and being in a coma for approximately 13 days.” Werle’s mother
told the Probation Office that Werle had “undergone many tests and
treatments that showed his brain suffered irreversible damage due to the
seizure he suffered.” (To the extent this information is sealed, we unseal
it for purposes of this opinion only.) Nothing in the record conclusively
establishes that Werle’s memory was unaffected by this brain damage,
so the district court erred by summarily denying Werle’s motion without
addressing it, either by expanding the record or holding an evidentiary
hearing. See 2255 Rules 7, 8.
18 UNITED STATES V. WERLE

We disagree with the Government’s assertion that we
should look only to Werle’s sentence and that the amount of
time he spent in prison is “inapposite.” The Government is
correct that defendants who are sentenced to more than one
year in prison “ordinarily” will not be able to establish
prejudice. United States v. Johnson, 979 F.3d 632, 639 (9th
Cir. 2020). But we decline to “elevat[e] this general
proposition to a per se rule.” Lee, 137 S. Ct. at 1966. The
reason a defendant who was sentenced to more than one year
in prison “ordinarily” will not be able to establish prejudice
is that defendants sentenced to more than one year in prison
ordinarily serve more than one year in prison, and spending
more than one year in prison is not something one is likely
to forget. It is not because, as the Government seems to
suggest, being sentenced is such an important moment in a
criminal proceeding that no defendant will ever forget it,
regardless of how long he actually spends in prison.

Accordingly, in Johnson, we held that the defendant had
not established prejudice because he had been sentenced to
more than two years in prison on three separate occasions
and “had in fact already served three prior prison sentences
exceeding one year.” 979 F.3d at 639 (contrasting the
Supreme Court’s observation in Rehaif, 139 S. Ct. at 2198,
that a defendant sentenced only to probation and who served
no prison time might not know he was a felon). And at least
four of the five cases we cited for this proposition in Johnson
involved defendants who had served more than one year in
prison for a felony conviction. See United States v. Benamor,
937 F.3d 1182, 1189 (9th Cir. 2019) (defendant “spent more
than nine years in prison on his [seven] felony convictions
before his arrest for possessing the shotgun”); United States
v. Maez, 960 F.3d 949, 964 (7th Cir. 2020) (defendant was
convicted of a felony for which he served over nine years in
prison), id. at 965–66 (second defendant “served a year or
 UNITED STATES V. WERLE 19

more in prison on three . . . convictions”), id. at 968 (third
defendant spent “over one year in prison” for “at least one”
felony conviction); United States v. Miller, 954 F.3d 551,
560 (2d Cir. 2020) (defendant with “a total effective
sentence of ten years’ imprisonment, with execution
suspended after three years”); United States v. Williams,
946 F.3d 968, 973 (7th Cir. 2020) (“Williams served a term
of imprisonment longer than a year—than a decade even—
for murder before he possessed the firearm.”). In the fifth
case, the court acknowledged that a defendant’s “knowledge
as to the length of time he was serving for any single
conviction” was relevant to whether the defendant had
established prejudice for a Rehaif error. United States v.
Burghardt, 939 F.3d 397, 404 n.4 (1st Cir. 2019). 6

Similarly, in each of our published opinions denying
relief for Rehaif errors we have cited the fact that a defendant
actually served more than one year in prison as a reason for
concluding that the defendant knew that he had been
convicted of a crime punishable by more than one year in
prison. See United States v. Davis, 33 F.4th 1236, 2022 WL
1511321, at *3 (9th Cir. 2022) (“Because Davis had been
incarcerated for more than three years for his prior felony
convictions, it defies common sense to suggest that he was
unaware of his felon status at the time he possessed the
firearm at issue.”); Pollard, 20 F.4th at 1257 (“Pollard had
served over five years in prison for committing numerous

6
In Burghardt, the defendant was convicted of four drug crimes,
sentenced to several years in prison for each, and then “paroled after
serving two years.” 939 F.3d at 404 & n.4. The court concluded that the
fact that the defendant was serving time for four separate crimes “could
have impacted his knowledge as to the length of time he was serving for
any single conviction,” so the court did not rely on “evidence that he
served over a year for a single charge” to support its conclusion that he
had not established prejudice. Id. at 404 n.4.
20 UNITED STATES V. WERLE

felonies.”); United States v. Door, 996 F.3d 606, 618 (9th
Cir. 2021) (“Having served more than a year in prison, Door
cannot (and does not attempt to) argue that a jury would find
that he was unaware of his status . . . .”); United States v.
King, 979 F.3d 1218, 1220 (9th Cir. 2020) (noting that King
“pleaded guilty to two felonies and served sentences of
greater than one year for each”); United States v. Tuan Ngoc
Luong, 965 F.3d 973, 989 (9th Cir. 2020) (noting that Luong
had been “incarcerated for more than a decade”); Benamor,
937 F.3d at 1189 (“Defendant spent more than nine years in
prison on his various felony convictions before his arrest for
possessing the shotgun.”). As these cases illustrate, the
length of time one serves in prison bears on whether one is
likely to remember that one’s convictions were punishable
by more than one year in prison.

This is not to say that a defendant’s sentence is
irrelevant. That Werle was sentenced to one year and one
day in prison is powerful evidence that he knew that the
crimes of which he was convicted were punishable by more
than one year in prison at the time of sentencing. And it
suggests that he was more likely to know that he had been
convicted of a felony than another similarly situated
defendant who was sentenced to less than one year in prison.
But Rehaif requires the Government to prove that Werle
knew that he was convicted of a felony “when he possessed
the firearm,” which, in this case, was nearly two years after
Werle’s most recent sentencing hearing and five years after
the only hearing the district court considered. Greer, 141 S.
Ct. at 2095. That he knew of that fact years earlier does not
necessarily mean he remembered it at the time he possessed
the firearm. Therefore, the fact that Werle was sentenced to
more than one year in prison does not conclusively establish
that he would have pled guilty even if he were informed of
all of the elements of the offense.
 UNITED STATES V. WERLE 21

The Government also argues that Werle’s
acknowledgement at his sentencing hearing that he had been
“convicted of felonies” is conclusive evidence that he would
have pled guilty, but this argument is not persuasive either.
Although a violation of § 924(a)(2) and § 922(g)(1) is
colloquially referred to as being a “felon in possession of a
firearm,” the word “felon” does not appear in the relevant
statutory provisions. Instead, Section 922(g)(1) identifies the
fact the defendant must know: that he has been convicted of
“a crime punishable by imprisonment for a term exceeding
one year.” That a state labels a crime a “felony” for purposes
of state law does not necessarily mean that it is “punishable
by imprisonment for a term exceeding one year.” For
example, we have held that to determine whether a
Washington state conviction was punishable by more than
one year in prison we do not simply look to the label the state
attached to the crime or to the maximum sentence authorized
by statute, but rather to the maximum sentence to which the
defendant was “actually exposed . . . under the state’s
mandatory sentencing scheme.” McAdory, 935 F.3d at 843.
That means that a defendant convicted of a “felony” under
Washington law may not have been convicted of a felony for
purposes of § 922(g)(1). See id. at 840 (reversing § 922(g)(1)
conviction because defendant convicted of three felonies
under Washington law, including “felony harassment,” had
not committed a crime punishable by more than one year in
prison). This is not to say that a defendant’s
acknowledgement that he has been convicted of a felony is
irrelevant. It is undoubtedly probative evidence that a
factfinder may consider in determining whether the
defendant had the requisite mens rea. But this evidence
standing alone is not necessarily conclusive under the
circumstances present here. Therefore, we cannot affirm the
district court’s summary denial of Werle’s motion on this
basis.
22 UNITED STATES V. WERLE

2

The Government next argues that Werle would have pled
guilty because he was also charged with possessing an
unregistered firearm, he had no reasonable defense to that
charge, and by proceeding to trial on the felon-in-possession
count, he would forfeit a three-level Guidelines reduction for
acceptance of responsibility. According to the Government,
doing so would increase the Guidelines range Werle faced
from 130–162 months to 168–210 months.

We do not believe that the potential loss of the
acceptance-of-responsibility reduction is so great that it
alone conclusively establishes that Werle would have pled
guilty to the felon-in-possession count even if he were
properly informed of the elements of the offense. Werle
faced a statutory maximum sentence of 10 years in prison for
the unregistered firearm count. 26 U.S.C. §§ 5861(d), 5871.
So even if he were to plead guilty to that count, he could
rationally choose to go to trial on the felon-in-possession
count because if he were to prevail, he would ensure that his
sentence would be no longer than 10 years. Since his
sentence would be capped at 10 years (120 months), an
increase in his Guidelines range from 130–162 months to
168–210 months would be immaterial.

What Werle would do depends on his risk preferences
and views regarding his likelihood of prevailing on the
felon-in-possession count at trial. If Werle believed he had a
reasonable chance of prevailing, he could rationally
conclude that the prospect of locking in a sentence no longer
than 10 years was worth the risk of increasing the Guidelines
range. This is particularly so because the Guidelines are
advisory, so an increase in the range may not result in a
longer sentence. See United States v. Booker, 543 U.S. 220,
245 (2005). On the other hand, if Werle were to go to trial
 UNITED STATES V. WERLE 23

on the felon-in-possession count and win, he would be
guaranteed to keep his sentence at 10 years or less.

The record suggests that Werle was willing to take risks.
Before he pled guilty, the Government offered to dismiss the
felon-in-possession count if Werle would withdraw a
pending suppression motion and plead guilty to the
unregistered firearm count. Accepting the Government’s
offer would have limited Werle’s sentencing exposure to ten
years in prison. Rejecting it would have risked up to twenty
years in prison, and, potentially, a fifteen-year mandatory
minimum sentence because the Government intended to
argue that Werle was subject to an Armed Career Criminal
Act sentencing enhancement for the felon-in-possession
count. See 18 U.S.C. § 924(e)(1). Even so, Werle rejected
the offer and elected to proceed to the suppression hearing.

***

Our discussion of the evidence throughout this opinion
is not meant to suggest that the district court must reach a
particular conclusion at the evidentiary hearing, but rather to
illustrate that the record does not conclusively establish that
Werle would have pled guilty if he were properly informed
of the elements of the offense. We emphasize that the district
court’s task at this stage is to determine whether there is a
reasonable probability that this defendant would have
proceeded to trial. If so, he was prejudiced, even if the
Government or the court believes that he likely would have
been convicted at trial or that the decision to go to trial “may
24 UNITED STATES V. WERLE

have been foolish.” United States v. Dominguez Benitez,
542 U.S. 74, 85 (2004). 7

CONCLUSION

We hold that Werle has established cause sufficient to
overcome his procedural default, and that the record in this
case does not conclusively establish prejudice, i.e., that
Werle would have pled guilty even if he were properly
informed of the elements of the offense. We therefore vacate
the district court’s judgment and remand for an evidentiary
hearing.

VACATED and REMANDED.

7
This is not to say that every defendant challenging a guilty plea
based on a Rehaif error is entitled to an evidentiary hearing. Like Werle
has done here, a defendant raising a Rehaif error must identify some
objective basis in the record to support his assertion in a § 2255
proceeding that he would have proceeded to trial if he were properly
informed of the elements of the offense. See Lee, 137 S. Ct. at 1967
(“Courts should not upset a plea solely because of post hoc assertions
from a defendant about how he would have pleaded . . . .”); compare
Pollard, 20 F.4th at 1257–58 (affirming denial of § 2255 motion without
an evidentiary hearing where the defendant did not point to “any
objective indications in his underlying criminal proceedings” to support
his assertion he would not have pled guilty).