United States v. Wilcox

Appellate Case: 20-7047 Document: 010110700612 FILEDPage: 1
Date Filed: 06/23/2022
United States Court of Appeals
Tenth Circuit

June 23, 2022
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-7047
(D.C. No. 6:19-CR-00093-RAW-1)
DAVID WILLIAM WILCOX, (E.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HARTZ, HOLMES, and EID, Circuit Judges.

Defendant-Appellant David William Wilcox appeals from the district

court’s denial of his motion to withdraw his guilty plea. Mr. Wilcox argues that

the district court abused its discretion when it found that his assertion of

innocence was not credible based on Mr. Wilcox’s previous admission that he

knew he was required to register as a sex offender and that he did not do so when

he arrived in Oklahoma. Specifically, Mr. Wilcox argues that the district court

erred because he never admitted to knowing that he was not “properly registered”

*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
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at the time of the offense. Exercising jurisdiction under 28 U.S.C. § 1291, and

for the reasons that follow, we affirm.

I

In 2014, Mr. Wilcox was convicted of a sex offense in North Dakota state

court. This required him to register as a sex offender under both state and federal

law. After his release from prison for the sex crime, Mr. Wilcox remained in

North Dakota. While there, he complied with the sex-offender registration

requirements. This included acknowledging that he was required to register with

local law enforcement within three days of entering another city, county, or state

where he intended to reside.

In September 2018, Mr. Wilcox told North Dakota law enforcement that he

intended to move to Muskogee, Oklahoma, with “an intended activation date of

September 21, 2018.” R., Vol. III, ¶ 8 at 2 (Presentence Investigation Report,

dated May 19, 2020) [hereinafter “PSR”]. Mr. Wilcox last updated his

registration in North Dakota on September 19, 2018. In the same registration

form, he again acknowledged that he was required to register with law

enforcement within three days of entering a new jurisdiction or every three days if

he became homeless.

Mr. Wilcox never registered as a sex offender in Oklahoma. On September

16, 2019, he was arrested. He told the police that “he had not made contact with

any law enforcement after arriving in Oklahoma and was under the impression

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that once he left North Dakota he did not have to register as a sex offender.” Id. ¶

10 at 2.

Mr. Wilcox was charged with traveling “in interstate commerce and

knowingly fail[ing] to register and update his registration” from October 21,

2018, to September 16, 2019, as required by the Sex Offender Registration and

Notification Act (“SORNA”) in violation of 18 U.S.C. § 2250(a). R., Vol. I, at 9

(Indictment, filed Dec. 11, 2019). A few months after being charged, Mr. Wilcox

notified the court that he intended to plead guilty.

After conducting the advisements required by Federal Rule of Criminal

Procedure 11 at the change of plea hearing, the court 1 asked Mr. Wilcox whether

his attorney had discussed with him the “essential elements of the charge” and

whether he understood them. R., Vol. II, at 21 (Change of Plea Hr’g Tr., dated

Mar. 4, 2020). Mr. Wilcox answered “yes” to both inquiries. Id. The court then

told Mr. Wilcox to explain “what [he] did or how did [he] commit the acts in

connection with the charge made against [him].” Id. at 21–22. Mr. Wilcox

explained:

I had been convicted of a felony offense in the state of North
Dakota, which required me to register as a sex offender.
Between October the 18th and September 16th of 2019, I was
required to register as a sex offender. I moved to the state of
Oklahoma where I am required to register as a sex offender.

1
With consent, a magistrate judge presided over Mr. Wilcox’s change
of plea hearing.

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While in Oklahoma, I failed to update my registration
information with local law enforcement.

Id. at 22. The court asked “what dates were [you] involved in that?” Id. Mr.

Wilcox responded, “October 21st of 2018 and September the 16th of 2019”—i.e.,

the date range for the offense charged in the indictment. Id. The court then asked

if Mr. Wilcox’s statement constituted all of the elements of the underlying

offense, and the prosecutor answered, “yes.” Id. The court accepted Mr.

Wilcox’s guilty plea.

About seven weeks after entering his guilty plea, Mr. Wilcox told the court

in a pro se letter that he found the registration requirements “confusing” and “had

to rely on the officials” at the police department in North Dakota to explain them

to him. R., Vol. I, at 26 (Second Pro Se Letter, filed Apr. 24, 2020). In the same

letter, Mr. Wilcox said an officer in North Dakota told him that “everything was

tak[en] care of” in Oklahoma, and once he got to Oklahoma, he would have to

update his registration once a year. Id. at 26–27. Mr. Wilcox stated that—based

on that advice about the purported one-year registration requirement—at the time

of his arrest, he “still thought [that] [he] had a month to update [his]

registr[ation]” because he arrived in Oklahoma “on October 28, 2018.” Id. at 27.

In this regard, Mr. Wilcox proclaimed that he “truly did not believe [he] was

breaking any laws.” Id.

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Three months later, Mr. Wilcox’s attorney withdrew, and the court

appointed new counsel. Shortly after being appointed, the new counsel filed a

motion to withdraw Mr. Wilcox’s guilty plea. The motion focused on Mr.

Wilcox’s assertion of innocence. Specifically, Mr. Wilcox argued that “he

thought he was properly registered in Oklahoma,” and, therefore, “Defendant is

making a good faith assertion of his innocence.” Id. at 40 (Def.’s Mot. to

Withdraw[] Plea of Guilty and Br. in Supp., filed July 24, 2020).

At the sentencing hearing, the court considered Mr. Wilcox’s motion to

withdraw his guilty plea. After hearing from both parties, the court denied the

motion to withdraw the guilty plea. The court noted that “at the plea hearing, the

defendant said under oath that he knew about the registration requirement and

while in Oklahoma [Mr. Wilcox] failed to update [his] registration information

with local law enforcement, which belies his statement now that he thought he

was registered.” R., Vol. II, at 31 (Mot. and Sentencing Hr’g Tr., dated Aug. 5,

2020).

After denying the motion to withdraw the guilty plea, the court asked the

parties whether they had any objections to the PSR. There being none, the court

accepted it as the factual basis for the court’s sentence. The court sentenced Mr.

Wilcox to a term of 33 months’ imprisonment. Mr. Wilcox appeals.

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II

“Defendants do not have an absolute right to withdraw a guilty plea.”

United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). After a court has

accepted a guilty plea, but before it has imposed a sentence, a defendant may

withdraw his plea by showing “a fair and just reason for requesting the

withdrawal.” F ED . R. C RIM . P. 11(d)(2)(B). It is the defendant’s burden to

establish “a fair and just reason for requesting the withdrawal.” United States v.

Hamilton, 510 F.3d 1209, 1214 (10th Cir. 2007) (quoting F ED . R. C RIM . P.

11(d)(2)(B))). This is because “[w]ere withdrawal automatic in every case . . . ,

the guilty plea would become a mere gesture, a temporary and meaningless

formality . . . . In fact, however, a guilty plea is no such trifle, but a ‘grave and

solemn act,’ which is ‘accepted only with care and discernment.’” United States

v. Hyde, 520 U.S. 670, 677 (1997) (quoting F ED . R. C RIM . P. 32, advisory

committee note to 1983 amendment). Therefore, a defendant “is not entitled to

withdraw his plea simply because he possesses a non-frivolous defense theory;

rather, on appeal, he must show that the district court ‘acted unjustly or

unfairly.’” United States v. Garcia, 577 F.3d 1271, 1274 (10th Cir. 2009)

(quoting Hamilton, 510 F.3d at 1214).

“We have identified some considerations that can help illuminate whether a

particular request qualifies . . . .” United States v. Soto, 660 F.3d 1264, 1267

(10th Cir. 2011). Specifically, to determine whether a defendant has met his

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burden to show a fair and just reason for withdrawing his guilty plea, we consider

the following seven factors: “(1) whether the defendant has asserted his

innocence, (2) prejudice to the government, (3) delay in filing defendant’s

motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6)

whether the plea is knowing and voluntary, and (7) waste of judicial resources.”

United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). But “we have also

recognized that the Rule’s standard—inviting and even commanding a general

inquiry into fairness and justice—is not so easily captured and

compartmentalized.” Soto, 660 F.3d at 1267. Therefore, “we have explained, it

always and ultimately lies ‘within the sound discretion of the district court to

determine’ on a case by case basis when the standard is and isn’t met.” Id.

(quoting Gordon, 4 F.3d at 1572). Consequently, even though a motion to

withdraw a guilty plea should be “freely allowed,” we will only reverse a district

court when the defendant has shown the court acted “unjustly or unfairly.”

United States v. Marceleno, 819 F.3d 1267, 1272 (10th Cir. 2016) (quoting

Garcia, 577 F.3d at 1274).

In accord with these legal principles, we review a district court’s denial of

a motion to withdraw a guilty plea under “our ‘deferential’ abuse-of-discretion

standard.” 2 United States v. Dominguez, 998 F.3d 1094, 1103 (10th Cir. 2021)

2
We have recognized that two Gordon factors—“whether the plea was
knowing and voluntary and, if reviewable on direct appeal, whether counsel
(continued...)

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(quoting United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009)); see also

Soto, 660 F.3d at 1267 (“[W]e retain our traditional function to review the district

court’s decision for an abuse of discretion and to delineate appropriate rules

regarding when ‘the defendant can [and cannot] show that the court acted unjustly

or unfairly.’” (second alteration in original) (quoting Gordon, 4 F.3d at

1572–73)).

We have “traditionally understood [the abuse of discretion standard] to

mean that we will reverse a determination only if the court ‘exceeded the bounds

of permissible choice,’ given the facts and the applicable law in the case at hand.”

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United

States v. Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). In this regard,

frequently, “there will be a range of possible outcomes [that] the facts and law at

issue can fairly support; rather than pick and choose among them ourselves, we

will defer to the district court’s judgment so long as it falls within the realm of

these rationally available choices.” Id. Nevertheless, “we will not hesitate to

2
(...continued)
provided effective assistance”—are reviewed de novo. Marceleno, 819 F.3d at
1272. On the other hand, we “have been careful to avoid singling out individual
Gordon factors for more deferential review.” Id. (explaining that although “[t]he
district court styled its conclusions regarding [the defendant’s] assertion of
innocence as ‘findings of fact’. . . which we typically review only for clear error .
. . [t]o review the district court’s overall conclusion on the credibility of [the
defendant’s] assertion of innocence only for clear error would deviate from our
previous treatment of motions to withdraw a guilty plea” (emphasis added)
(citations omitted)).

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find abuse where a decision is either ‘based on a clearly erroneous finding of fact

or an erroneous conclusion of law or manifests a clear error of judgment.’” Id. at

1054 (quoting Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995)).

III

Mr. Wilcox argues that the district court erred in denying his motion to

withdraw his guilty plea because he thought he was “properly registered” at the

time of the offense, and therefore, was innocent. We will first summarize the

legal standard for assessing the merits of an assertion of innocence claim—the

only element that Mr. Wilcox contests. Then, we will explain why Mr. Wilcox

cannot show the district court abused its discretion in denying his motion.

A

To prevail on an assertion of innocence claim, a defendant must make an

argument that is both credible and supportive of a legally cognizable defense.

Marceleno, 819 F.3d at 1273; see Hamilton, 510 F.3d at 1214 (“[T]he mere

assertion of a legal defense is insufficient; the defendant must present a credible

claim of legal innocence.”). “A district court need not accept a defendant’s

version of the facts as true for purposes of evaluating whether a defendant’s

assertion of innocence is credible.” Marceleno, 819 F.3d at 1274–75. We have

explained that “[t]o hold otherwise would undermine Rule 11 by removing the

discretion granted to district courts on motions to withdraw a guilty plea.” Id. at

1275. Instead, we have explained that a credible claim is one that “‘has the

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quality or power of inspiring belief,’ and ‘tends to either defeat the elements in

the government’s prima facie case or make out a successful affirmative defense.’”

Id. (quoting United States v. Thompson-Riviere, 561 F.3d 345, 353 (4th Cir.

2009)). In keeping with our overall standard of review for a denial of a motion to

withdraw a guilty plea, we review the court’s determination as to the

assertion-of-innocence factor for an abuse of discretion. See id. at 1272 (noting

we have declined to adopt a clear error standard to review a district court’s

overall conclusion on the credibility of a defendant’s assertion of innocence

because doing so “would deviate from our previous treatment” of “avoid[ing]

singling out individual Gordon factors for more deferential review” when

considering motions to withdraw a guilty plea).

B

Reviewing the district court’s denial of Mr. Wilcox’s motion to withdraw

his guilty plea for an abuse of discretion, we conclude that the district court did

not act “unjustly or unfairly” or otherwise abuse its discretion when it concluded

that Mr. Wilcox’s assertion of innocence was not credible in light of his previous

statements at the change of plea hearing. The district court’s finding that Mr.

Wilcox’s assertion of innocence was not credible reflects—at the very least—a

plausible view of the import of his statements at that hearing. As the district

court saw it, those statements belied (i.e., were inconsistent with) Mr. Wilcox’s

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assertion of innocence. In sum, the court did not abuse its discretion by denying

Mr. Wilcox’s motion to withdraw his guilty plea.

To decide this issue, we must determine what Mr. Wilcox is and is not

arguing. As to the latter, it is notable that Mr. Wilcox does not argue that he is

innocent because he does not satisfy the legal mens rea requirement for

knowingly failing to register as a sex offender; indeed, he explicitly asks us not to

consider this mens-rea question. See Aplt.’s Opening Br. at 7 n.2. Specifically,

Mr. Wilcox notes that we have not defined what the “knowingly” element means

in the context of § 2250(a). Id. (citing United States v. Forster, 549 F. App’x

757, 762 n.2 (10th Cir. 2013)). He points out that “[t]he circuits to have

addressed the issue have held that the ‘knowingly’ element of section 2250(a)

requires only that a defendant have knowledge that he was legally required to

register as a sex offender.” Id.; see, e.g, United States v. Vasquez, 611 F.3d 325,

328 (7th Cir. 2010) (“Today we join the Fourth, Fifth, Eighth, and Eleventh

Circuits . . . and hold that SORNA merely requires that a defendant have

knowledge that he was required by law to register as a sex offender.”); id. at 329

(“To that end, a defendant can be convicted under SORNA if the government can

prove that he knew he was required to register as a sex offender.”). Mr. Wilcox

says that we need “not [decide the mens rea question] here.” Aplt.’s Opening Br.

at 7 n.2. He explains that this would be unnecessary because he “claims not that

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he was unaware of SORNA’s requirements in particular but that he generally

believed he was properly registered.” Id.

Mr. Wilcox frames his challenge as a factual one. He argues that the

district court found his assertion of innocence not to be credible “based on a

misreading of the record.” Id. at 8. In his motion to withdraw his guilty plea,

Mr. Wilcox argued that he was actually innocent because he did not knowingly

fail to register as a sex offender and instead “thought that he was properly

registered in Oklahoma.” R., Vol. I, at 39. The district court did not find this

credible in light of his testimony at the change of plea hearing where he admitted

that he knew that he was required to register as a sex offender and that he did not

do so upon arriving in Oklahoma. So here, Mr. Wilcox argues that the district

court abused its discretion because the court based its conclusion on a clearly

erroneous reading of the record—specifically, that nowhere in the record did Mr.

Wilcox admit that he knew at the time of the offense that he was not “properly

registered” in Oklahoma. Aplt.’s Opening Br. at 6.

We disagree with Mr. Wilcox’s contention that the district court abused its

discretion by finding that his assertion of innocence was not credible because it

misread the record. As the district court plausibly (indeed, reasonably) explained,

“in his statement of the factual basis at the plea hearing, the defendant said under

oath that he knew about the registration requirement and while in Oklahoma [he]

failed to update [his] registration information with local law enforcement, which

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belies his statement now that he thought he was registered.” R., Vol. II, at 31; see

id. at 22 (“I had been convicted of a felony offense . . . which required me to

register as a sex offender. Between October the 18th [of 2018] and September

16th of 2019, I was required to register as a sex offender. . . . While in Oklahoma,

I failed to update my registration information with local law enforcement.”); id.

(replying to “what dates were [you] involved in that,” Mr. Wilcox answered,

“October 21st of 2018 and September the 16th of 2019”).

In other words, the court plausibly found that, based on his statements, Mr.

Wilcox had effectively admitted at the change of plea hearing (1) that he knew

about the registration requirement and (2) while in Oklahoma, he had failed to

register. The court concluded that Mr. Wilcox’s subsequent assertion of

innocence was belied by these statements; that is, his assertion was not credible.

This conclusion is grounded in a permissible reading of the record—even if it is

not the only plausible reading of the record—and, therefore, the court did not

clearly err. See, e.g., Anderson v. City of Bessemer City, 470 U.S. 564, 574

(1985); accord United States v. Ellis, 23 F.4th 1228, 1241 (10th Cir. 2022). And

the court did not otherwise act “unjustly or unfairly” in rejecting Mr. Wilcox’s

argument for relief. See Garcia, 577 F.3d at 1274 (quoting Hamilton, 510 F.3d at

1214).

Yet Mr. Wilcox contends that there was no contradiction between his

statements at the change of plea hearing and his subsequent assertion of

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innocence. As Mr. Wilcox reasons, that is because he never admitted that he

knew that, at the time of the charged offense, he was not “properly registered” in

Oklahoma. And it is undisputed that the district court did not purport to make

any finding—much less an adverse one—concerning whether Mr. Wilcox knew

that he was “properly registered” at the time of the offense.

However, Mr. Wilcox fails to demonstrate the relevancy of this “properly

registered” contention to the factual challenge that he has presented here: that is,

his challenge to the district court’s determination—based on its reading of his

statements at the change of plea hearing—that his assertion of innocence was not

credible. More specifically, to understand why Mr. Wilcox’s argument that he

did not know he was not “properly registered” while in Oklahoma does not save

his assertion of innocence claim, it is important first to understand what Mr.

Wilcox means by “properly registered.” To Mr. Wilcox, “properly registered”

means that, at the time of his charged offense, he did not know that by not

registering in Oklahoma he was not in compliance with his SORNA registration

requirement.

In effect, Mr. Wilcox argues that he had to know at the time of the offense

that he was not in a lawful registration status (i.e., “properly registered”). See,

e.g., Aplt.’s Opening Br. at 1 (“[H]e was unaware at the time of the alleged

offense that he was not properly registered as a sex offender. . . . Mr. Wilcox

never admitted at the change of plea hearing to knowing he was not properly

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registered at the time the offense allegedly occurred.”); id. at 3 (“But he did not

admit that he had known he was not properly registered at the time of the alleged

offense.”); id. at 4–5 (“Mr. Wilcox ‘thought he was properly registered in

Oklahoma’. . . . Mr. Wilcox averred that he had repeatedly explained to his

previous lawyer that he thought he ‘had properly registered.’”); see also Aplt.’s

Reply Br. at 1 (“While his admission demonstrates that he knew he had failed to

properly register at the time he pled guilty, it does not show that he knew he

wasn’t properly registered at the time of the alleged offense.” (emphases

omitted)); id. (“[B]y the time he pleaded guilty, Mr. Wilcox had been appointed

an attorney who undoubtedly reviewed the discovery with him and explained that,

in fact, he had not been properly registered, regardless of what he had thought at

the time.”); id. at 2 (“Because Mr. Wilcox’s admissions at the change of plea

hearing would not compel a finding that he knew he wasn’t properly registered at

the time of the alleged offense, it certainly would not exceed the bounds of

permissible choice for the court to decline to make that finding.”).

This argument is consistent with Mr. Wilcox’s prior claim in his pro se

letter to the district court that “[he] truly did not believe [he] was breaking any

laws.” R., Vol. I, at 27. But it is worth underscoring that Mr. Wilcox is not

arguing that he did not have knowledge of the registration requirement or that he

believed he had actually registered in Oklahoma. See 18 U.S.C. § 2250(a)

(“Whoever . . . is required to register under [SORNA]. . . and (3) knowingly fails

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to register or update a registration as required by [SORNA] . . . shall be fined

under this title or imprisoned . . . .”).

As we see it, then, Mr. Wilcox’s argument that the district court misread

the record in perceiving a contradiction between his statements at the change of

plea hearing and his subsequent assertion of innocence is tacitly predicated on a

particular theory regarding the nature of the mens-rea requirement of his

registration offense. Under this theory, not only does a defendant need to know

that he was legally required to register as a sex offender, but also that, when the

crime was committed, he was not “properly” registered—that is, not lawfully

registered.

However, even under Mr. Wilcox’s own reading of the caselaw, our sister

circuits have repeatedly adopted a different mens-rea theory, see Vasquez, 611

F.3d at 328, and we have not opined on the specific subject, see Aplt.’s Opening

Br. at 7 n.2. And more problematic still for Mr. Wilcox, he has expressly

disclaimed any intention of challenging the district court’s view of the mens-rea

standard and, indeed, has told us there is no need for us to reach the issue of the

proper mens-rea standard. See Aplt.’s Opening Br. at 7 n.2. That is, Mr. Wilcox

has not argued on appeal that the district court committed legal error by not

adopting a particular mens-rea theory—including the one he tacitly endorses

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here—and he expressly disclaims any interest in us reaching this conclusion. 3

3
Though Mr. Wilcox explicitly tells us that we need not opine on the
nature of the mens-rea requirement for his SORNA offense, he seems to tacitly
pursue a contrary course through a 28(j) letter. Following our decision in United
States v. Perez-Perez, 992 F.3d 970 (10th Cir. 2021), Mr. Wilcox filed a 28(j)
letter arguing that his admission of improper registration “at the time of his guilty
plea is ‘of questionable significance as to his knowledge of his status at the time
of the offense,’ because the mere fact that he ‘now knows’ he was not properly
registered ‘does not mean’ that he was aware of his failure to properly register ‘at
the time of the offense.’” Aplt.’s 28(j) Letter at 2. Mr. Wilcox’s reliance on
Perez-Perez, however, is unavailing. First, Mr. Wilcox fails to cite any legal
authority that would call for the application of the holding of Perez-Perez here;
and second, Mr. Wilcox did not expressly advance his particular mens-rea
theory—which he intimates is similar to the defendant’s theory in Perez-
Perez—in his opening brief and therefore it is waived.

More specifically, there is no legal basis for Mr. Wilcox to equate his
circumstances to those in Perez-Perez. In Perez-Perez, we concluded that the
defendant’s guilty plea was invalid because he was not informed at the time of his
plea that the government would have to prove that he “knew he was illegally or
unlawfully in the United States at the time of the offense.” Perez-Perez, 992 F.3d
at 973. Mr. Wilcox essentially seeks to analogize his circumstances to those of
the defendant in Perez-Perez: as his argument seems to go, just as Mr. Wilcox did
not admit at the change of plea hearing that he knew he was not “properly
registered” at the time of his offense, the defendant in Perez-Perez did not admit
that he knew he was illegally or unlawfully in the United States at the time of his
offense. However, notably, the Perez-Perez’s defendant’s knowledge of his
unlawful status in this regard was a legally relevant fact—indeed, a requisite
element of his offense. In contrast, Mr. Wilcox has presented no legal authority
to even suggest that his knowledge that he was not, at the time of the offense,
“properly registered”—i.e., not lawfully registered—was likewise a legally
relevant fact to his plea, much less a requisite element of his offense. Indeed, as
he seemingly recognizes, other circuits to consider this question uniformly have
reached a contrary conclusion—that “SORNA merely requires that a defendant
have knowledge that he was required by law to register as a sex offender.”
Vasquez, 611 F.3d at 328. In any event, as mentioned above, Mr. Wilcox
explicitly indicated that we need not opine on the nature of the mens-rea element
of his SORNA offense—which would include the mens-rea theory that he tacitly
endorses here. Consequently, Mr. Wilcox has waived any argument for reversal
(continued...)

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At bottom, then, Mr. Wilcox fails to explain why it is relevant to the

challenge that he has presented that he failed to admit when he pleaded guilty that

he knew at the time of the charged offense that he was not “properly registered”

in Oklahoma. More specifically, Mr. Wilcox does not tell us why—as a factual

matter—the absence of such an admission rendered the district court’s conclusion

an abuse of discretion, that is, its conclusion that Mr. Wilcox’s assertion of

innocence was not credible and specifically belied by his previous statements at

the change of plea hearing. In this regard, we are hard pressed to understand how

the district court could be deemed to have abused its discretion for failing to view

Mr. Wilcox’s change of plea statements—and lack of admissions—through the

prism of a legal theory that Mr. Wilcox himself acknowledges we have not

previously opined on, and one he does not even urge us to adopt now. Stated

otherwise, based on the factual challenge that is properly before us, we cannot

conclude that the district court abused its discretion by relying on Mr. Wilcox’s

prior statements to determine that his later assertion of innocence was not

credible. See Marceleno, 819 F.3d at 1274 (“If the movant’s factual contentions .

3
(...continued)
based on the similarity between his mens-rea theory and the theory espoused by
the defendant in Perez-Perez; at Mr. Wilcox’s own explicit suggestion, his theory
is not part of our decisional calculus. See Wyoming v. Livingston, 443 F.3d 1211,
1216 (10th Cir. 2006) (“Wyoming did not address this issue in its opening
appellate brief. The issue is therefore waived.”); United States v. Black, 369 F.3d
1171, 1176 (10th Cir. 2004) (holding “[f]ailure to raise an issue in the opening
appellate brief waives that issue” [when the issue was raised in] “a ‘supplemental
memorandum brief’ filed almost two months after [the] reply brief”).

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Appellate Case: 20-7047 Document: 010110700612 Date Filed: 06/23/2022 Page: 19

. . make out no legally cognizable defense to the charges, he has not effectively

denied his culpability.” (quoting Hamilton, 510 F.3d at 1214–15)).

In sum, resolving Mr. Wilcox’s appellate challenge on the terms he has

defined—i.e., with the outcome of the challenge depending on whether the district

court misread the record—we conclude that the district court’s rejection of Mr.

Wilcox’s assertion of innocence as not credible was not based on a clearly

erroneous understanding of the record and did not otherwise evince an abuse of

discretion. Accordingly, we uphold the district court’s order denying Mr.

Wilcox’s motion to withdraw his guilty plea.

IV

For the foregoing reasons, we AFFIRM the district court’s judgment. 4

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

4
Mr. Wilcox’s recent filing, styled “Motion to Expedite Judgment,” is
denied as moot.

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