Rehaif given crabbed interpretation by Tenth

United States v. Tignor, 981 F.3d 826 (10th Cir., December 1, 2020): The panel interprets Rehaif v. United States, 139 S.Ct. 2191 (2019), to require only that the government prove an accused knew that his prior conviction was punishable by more than a year in prison. The panel finds the district court plainly erred in not telling Tignor this was an element of the offense to which he was pleading guilty. But Tignor was not entitled to have his guilty plea set aside because he did not show he could plausibly defend against this element at trial. First, when his sentence was revoked on the underlying offense, the state court sentenced him to 7 years in prison, 2 of which he actually served. The panel notes he would not have forgotten the length of that stretch in prison. Second, when he pleaded guilty to the underlying offense, state law required the court to tell Tignor of the possible imprisonment range. According to the state statute, that range was 2 to 20 years of imprisonment. Therefore, it was likely Tignor knew the offense was punishable by more than one year. Third, any belief that his civil rights had been restored by the state in which he was convicted was unfounded: he did not possess the firearm in that state, which allowed felons to possess firearms only inside their homes. Of note: The circuit has not really embraced Rehaif. A keen reader of the circuit’s decisions noted that in United States v. Benton, 2021 WL 687940 (10th Cir., February 23, 2021), the panel significantly limited its value to the defense. There, the panel held that not knowing that one’s prior conviction makes one ineligible to possess a firearm is not an element of the offense. According to the panel, the government has to prove only that the accused was aware that he was convicted of a particular offense. In context, all the government had to prove was that Benton knew he was convicted of a misdemeanor domestic violence offense, not that he knew it prohibited him from possessing a firearm. Therefore, the trial court was not required to instruct the jury that it must find the government proved Benton knew he was prohibited from possessing a firearm as a result of his domestic violence conviction. Although the panel believes its holding is consistent with Rehaif, it is difficult to reconcile its holding with Rehaif’s requirement that the government prove the accused knew he belonged to the relevant category of persons barred from possessing a firearm. It may be worth preserving this issue by asking that the jury instruction include a requirement that the government prove the accused knew that his conviction (or status) made him a person prohibited from possessing a firearm. At least one Albuquerque district judge is using Benton as a guide for jury instructions. The Supreme Court is not done with Rehaif. It granted certiorari in two cases derived from Rehaif. In United States v. Gary, No. 20-444, it will decide whether a defendant who pleaded guilty to possessing a firearm as a felon, is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings. If it rules in Gary’s favor, it will necessarily overrule Tignor and United States v. Trujillo, 960 f.3d 1196 (10th Cir. 2020). In Greer v. United States, 19-8709, the question presented notes that Rehaif held that the government must prove not only that the defendant knew he possessed a firearm, but also that he knew he belonged to the relevant category of persons barred from possessing a firearm. The specific question the Court will address is whether when applying plain-error review based upon an intervening Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial? Arguably, a favorable ruling for Greer puts Tignor's continuing validity in question.