Tenth Circuit holds it was plain error to not advise defendant pursuant to Rehaif, but finds defendant cannot prove his substantial rights were affected

United States v. Perez, 2021 WL 1166393 (10th Cir. March 29, 2021): the panel majority finds that after Rehaif, the district court plainly erred in not advising Perez that the government had to prove that when he possessed the firearm he knew he was an alien illegally or unlawfully in the country. However, the panel did not set aside Perez's conviction and sentence because he could not prove plain error's third element, that his substantial rights were affected. Although he had a plausible defense to the charge, the context of his guilty plea demonstrated he pleaded guilty to avoid the minimum mandatory prison term attached to the charges the government dismissed. Even though the majority ruled against Perez, its opinion, like the dissent’s, contains findings that can be helpful when proving plain error’s third element, that there is a reasonable probability that the accused would not have pleaded guilty but for the court’s error. The majority found that Perez had a colorable claim that at the time of the offense he was unaware that he was unlawfully in the country. After all, he had been in the country for 7 years; he was married to a citizen; his wife had started the process to adjust his status based on the marriage; his immigration bond money was returned to him and removal proceedings were concluded; and Perez was illiterate, unsophisticated and unfamiliar with immigration law’s complexities. The panel said Perez did not have to assert on appeal that at the time of the offense “he actually believed he had lawful status.” Citing Lee v. United States, 137 S.Ct. 1958, 1967 (2017), the panel said it looks at evidence contemporaneous with the decision he had to make to substantiate his expressed preference for a trial. It added that Perez did not have to prove his actual innocence, simply showing the government would have had a difficult time proving his guilt is enough to establish plain error’s third element. The majority pushed back on the government’s claim that Perez failed to prove the third element because there was no evidence Perez adjusted his status, completed the process or got a green card or other documentation. Not important, says the panel - even if true, it doesn’t prove that Perez “never thought he had lawful status.” It stressed that there was “no evidence that Perez knew the government could prove its case against him” and there was no direct evidence to contradict Perez’s claims. The majority also rejected the government’s argument that the complaint gave Perez notice of the knowledge element. That was not enough because the plea agreement misrepresented the element. There, Perez was told that the government needed to prove only that he was an alien when he possessed the firearm, not that he was here unlawfully and illegally. Additionally, the panel disagreed with the government that Perez’s failure to object to the PSR’s repeated reference to his illegal status was an admission that he knew all along he was here illegally. Perez never had any reason to argue he thought had legal status because the district court told him the offense applied to all aliens, regardless of status. Ultimately, according to the majority, Perez’s plain error argument was undone by the plea agreement he negotiated. The indictment did not include the firearm charge, only 2 drug charges with minimum mandatory prison terms. Under the plea agreement he would plead guilty to distribution of an unspecified quantity of heroin and unlawful possession of a firearm. In this way, he would avoid the minimum mandatory sentence and could argue for a downward variance. Thus, the panel concluded, even if Perez had known of the omitted elements, “there is no reason to believe that would have impacted his decision to plead, because it would not have impacted his motivation.” The dissenting Judge Bacharach, disagreed with this reasoning. The government never argued the court’s error did not effect Perez’s substantial rights because he benefitted from the plea agreement. Had it made the argument that with the plea agreement he avoided a minimum mandatory prison term, Perez could have countered it in his reply. The panel majority was wrong then not to consider the infirmity of the government’s drug charges. It did not engage in this analysis because it said Perez didn’t raise it in his briefing. J. Bacharach said that wasn’t Perez’s problem - the government waited until oral argument to suggest it could have proven Perez possessed 100 or more grams of heroin. He would not have upheld Perez’s sentence because the government did not develop this argument until oral argument and it lacks support in the record. Thus, the majority’s conclusion that the government agreed to drop the original charges at Perez’s insistence is just speculation. It is equally plausible it did so because its evidence was weak. Indeed, the record showed Perez had a strong defense to both the gun and drug charges. J. Bacharach said the government’s evidence that Perez knew he fell “within a category of person barred from possessing a firearm” was weak. Like the majority, he pointed to numerous factors that illustrated Perez would have thought he was lawfully in the country. He also found that the government could not have proven Perez possessed a threshold amount of heroin because it had no evidence that the heroin found in an apartment Perez shared with others belonged to him. The government would have had to rely on a constructive possession theory but it had no evidence he had the power to exercise dominion or control over the heroin or had actually intended to exercise control over it.