United States of America v. Abiel Perez-Perez

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABIEL PEREZ-PEREZ,
Defendant - Appellant.
No. 19-2154
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CR-03241-JCH-1)
_________________________________
Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.
Tiffany Walters, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Defendant-Appellant Abiel Perez-Perez (referred to by the parties and here as
Perez) pled guilty to being an alien in possession of a firearm in violation of
18 U.S.C. § 922(g)(5). On appeal, he challenges the district court’s failure to advise
him of two elements of that offense: (1) the alien is illegally or unlawfully present in
FILED
United States Court of Appeals
Tenth Circuit
March 29, 2021
Christopher M. Wolpert
Clerk of Court
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the United States; and (2) the alien knows that he is illegally or unlawfully present.
Perez failed to raise this issue below and this Court thus reviews for plain error. The
government concedes that the omission of these elements constitutes error that is now
plain on appeal. The only dispute is whether Perez satisfied the third and fourth
prongs of plain-error review.
We conclude that Perez cannot satisfy the third prong because he cannot show
that the error affected his substantial rights. Although Perez has a credible claim
that, at the time of the offense, he did not know he was unlawfully present in the
United States, he has failed to show a reasonable probability that he would not have
pled guilty but for the district court’s error. This is because the context of Perez’s
guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences
attached to charges the government dismissed in exchange for the guilty plea. Perez
fails to show how the district court’s error impacted that choice, and he thus fails to
satisfy the third plain-error prong. Exercising jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a), we affirm his conviction.
I. BACKGROUND
Perez’s Immigration Status
Perez was born in Mexico. His family was very poor and struggled with
homelessness. Perez has only a sixth-grade education, can barely read, and can
barely write his own name. He does not speak English. He has worked as a painter
and a blacksmith. In 2009, when he was thirty-three years old, Perez unlawfully
entered the United States in the hope of obtaining better employment.
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Since then, Perez has remained in the United States as an undocumented alien,
working “under the table.” R., Vol. 3 at 74. In 2011, Perez married a U.S. citizen,
but he did not take any immediate steps to obtain lawful residency status based on
that marriage. In 2012, Immigration and Customs Enforcement charged Perez with
illegal entry, but no criminal charges were filed.
In 2016, Perez was placed in removal proceedings in immigration court.
Perez’s wife and her family bonded him out and he then began the process of
adjusting his residency status to lawful based on his marriage to a U.S. citizen. In
February 2017, Perez’s bond money was returned. Perez was not removed. There is
no evidence that Perez ever completed the process to achieve lawful status based on
his marriage or ever obtained any lawful status.
Drug Investigation and Arrest
In August 2017, the Drug Enforcement Agency (DEA) began investigating
Perez for heroin distribution. The DEA determined that Perez was operating a drug-
trafficking organization, aided by two associates. The investigation culminated in
raids on Perez’s stash house, where agents located 187 grams of heroin, and Perez’s
residence, where agents found 15 firearms, including high-capacity firearms, and
ammunition.
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District Court Proceedings
A federal grand jury indicted Perez, charging him with distribution of at least
100 grams of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(B), and with conspiracy
to do so under 21 U.S.C. § 846. Each charge carried a five-year mandatory
minimum. Perez was not initially charged with any firearms-related offenses.
Eighteen months later, the parties reached a plea agreement. Perez agreed to
plead guilty to an information charging him with (1) distributing an unspecified
quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2; and
(2) “being an alien, who was illegally and unlawfully in the United States,” in
possession of a firearm in violation of 18 U.S.C. § 922(g)(5). R., Vol. 1 at 135–37.
Neither charge carried a mandatory minimum sentence. In exchange, the government
agreed to dismiss the charges in the original indictment.
Perez’s plea agreement erroneously described the elements of his firearms
offense as (1) “the defendant knowingly possessed a firearm”; (2) “the defendant was
an alien at the time he possessed the firearm”; and (3) the firearm moved in interstate
commerce. Id. at 143. It did not inform Perez of the element requiring that the alien
be “illegally or unlawfully in the United States.” See 18 U.S.C. § 922(g)(5). Perez
acknowledged he was an alien but did not admit he was in the country unlawfully.
He did, however, consent to removal following the completion of his sentence.
At his plea hearing, Perez confirmed that he had read and understood the
charges in his information and that his attorney had read him the elements of the
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offenses. However, Perez was never informed that some non-citizens are allowed to
possess firearms and that illegal or unlawful status was an element of § 922(g)(5).
Additionally, when Perez pled guilty to that offense, the government only had
to establish the elements of (1) status as an alien illegally or unlawfully present in the
United States, and (2) knowing possession of a firearm that traveled in interstate
commerce. See United States v. Games-Perez, 667 F.3d 1136, 1140 (10th Cir. 2012)
(rejecting that a defendant must knowingly possess the prohibited status at the time
of the offense). Thus, the government did not have to prove Perez knew his
prohibited status. Accordingly, Perez’s guilty plea did not include any mention of
proof of his knowledge of his prohibited status.
After Perez pled guilty but before he was sentenced, the Supreme Court
decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s
knowledge of his prohibited status is a required element the government must prove
under § 922(g). Id. at 2194. Thus, the government had to prove that Perez knew he
was illegally or unlawfully in the United States at the time of the offense. Perez was
never informed of this element.
At sentencing, Perez’s offense level was based primarily on the drug charge,
but an additional offense level was added because of the firearms offense under the
guidelines rules regarding grouping and multiple count adjustments. This resulted in
an advisory guidelines range of 78 to 97 months in prison. Perez argued for a
downward variance and a below-guidelines sentence of 37 months, but the district
court sentenced him to 78 months on each count to run concurrently. This appeal
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followed. On appeal, Perez argues that the district court erred by failing to inform
him of two elements of the § 922(g)(5) offense before accepting his guilty plea.
Accordingly, he asks this Court to vacate his guilty plea to that offense. 1
II. STANDARD OF REVIEW
Because Perez did not raise this argument below, we review for plain error.
See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc).
Under plain-error review, “the defendant must establish that (1) the district court
committed error; (2) the error was plain—that is, it was obvious under current
well-settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Dalton, 918 F.3d 1117, 1129–30 (10th Cir. 2019)
(quoting United States v. Chavez-Morales, 894 F.3d 1206, 1214 (10th Cir. 2018)).
This Court applies plain-error review “less rigidly” when reviewing a potential
constitutional error. Id. at 1130 (quoting United States v. Weeks, 653 F.3d 1188,
1198 (10th Cir. 2011)).
Here, the government concedes that Perez has satisfied the first two plain-error
prongs by establishing that the district court committed an error that became “clear or
obvious at the time of the appeal.” Gonzalez-Huerta, 403 F.3d at 732. Thus, the
issue is whether Perez has met the third and fourth plain-error prongs.
1 Perez does not challenge the validity of his drug-distribution conviction.
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To satisfy the third prong, Perez “must show a reasonable probability that, but
for the error, he would not have entered the plea.” United States v. Trujillo, 960 F.3d
1196, 1208 (10th Cir. 2020). 2 This is a lesser standard than proof by a preponderance
of the evidence, and it is satisfied by “a probability sufficient to undermine
confidence in the outcome.” United States v. Bustamante-Conchas, 850 F.3d 1130,
1138 (10th Cir. 2017) (en banc) (quoting United States v. Hasan, 526 F.3d 653, 665
(10th Cir. 2008)). If Perez fails to satisfy the third plain-error prong, the Court need
not reach the fourth prong. Trujillo, 960 F.3d at 1208.
III. DISCUSSION
Perez asserts that his guilty plea is constitutionally invalid because he was not
informed of two elements of the firearms offense: (1) that the defendant alien is
illegally or unlawfully present in the United States; and (2) that the defendant knew
of his unlawful status. A guilty plea must be voluntary and intelligent, which
requires that the defendant receive “real notice of the true nature of the charge
against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v.
O’Grady, 312 U.S. 329, 334 (1941)). This requires notice of the elements of the
crime charged. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th Cir. 2008).
2 Perez filed his opening brief the day before this Court issued Trujillo. In his
brief, he argued for a different standard, under which the third prong is satisfied by a
Rehaif error unless “the defendant was made aware of the missing elements through
other means, or if the record contains an admission that would satisfy the elements.”
Aplt. Br. 12. In his reply brief, Perez conceded that this argument is foreclosed by
Trujillo.
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Accordingly, the district court plainly erred by accepting Perez’s guilty plea
despite Perez not being informed of two elements of § 922(g)(5). Yet Perez agreed
to plead guilty to that charge (and the unspecified-quantity heroin-distribution
charge) in exchange for the dismissal of charges that carried five-year mandatory
minimums. Perez hoped that his plea to the substitute charges would result in a
sentence below that five-year threshold. It did not. So Perez now tries to get out
from his plea agreement by arguing Rehaif error. But the Rehaif error has no impact
on the reason Perez took the plea deal, so he cannot show a reasonable probability
that, but for the error, he would not have pleaded guilty. For that reason, as
explained in more detail below, the Court concludes that Perez fails to satisfy
plain-error review.
In reaching that conclusion, we first consider Perez’s argument that he has a
credible claim that he was not aware, at the time of his offense, that he was
unlawfully present in the United States or that he could not lawfully possess a
firearm. Accepting that argument, we then turn to whether it establishes a reasonable
probability that, but for the district court’s error, Perez would not have pled guilty.
And that is where Perez’s argument fails.
A. Perez has a credible claim that, at the time of his offense, he was not
aware that he was unlawfully present in the United States.
In the uninformed-guilty-plea context, a defendant might be able to satisfy the
third prong of plain-error review by establishing a plausible defense based on an
erroneously omitted element. See United States v. Dominguez Benitez, 542 U.S. 74,
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85 (2004); Trujillo, 960 F.3d at 1208. For a defendant claiming a Rehaif error, such
a plausible defense may be based on a claim of ignorance of the prohibited status.
See United States v. Fisher, 796 F. App’x 504, 510 (10th Cir. 2019) (unpublished).
Here, we believe that Perez has a colorable argument that, at the time of the
offense, he was not aware that he was unlawfully present in the United States. The
record provides ample support for this potential defense: (1) Perez had been in the
United States for at least seven years at the time of his offense; (2) Perez was married
to a U.S. citizen; (3) Perez’s U.S. citizen wife had initiated the process for him to
adjust his residency status to lawful based on their marriage; (4) Perez’s 2017 bond
money was returned to him and the removal proceedings concluded, apparently,
without him being removed; 3 and (5) Perez was illiterate, unsophisticated, and
unfamiliar with the complexities of immigration law.
In light of these facts, Perez may well not have known at the time of the
offense that he was unlawfully present in the United States. Although it is
undisputed that Perez never had lawful status, he could have believed that he had
some sort of lawful status in 2017 based on the above facts—or at least he could have
credibly argued to a jury that he so believed.
These circumstances are sufficient to support a plausible defense, and Perez
need not assert now on appeal that at the time of the offense he actually believed he
had lawful status. Our determination is not based on “post hoc assertions from a
3 The record does not explain why the bail money was returned or how the
removal proceedings concluded.
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defendant about how he would have pleaded,” but on “contemporaneous evidence to
substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct.
1958, 1967 (2017); see also United States v. Kennedy, 225 F.3d 1187, 1191 (10th
Cir. 2000) (“This court will not consider material outside the record before the
district court.”). Moreover, Perez does not need to assert or prove his actual
innocence. Trujillo, 960 F.3d at 1201. Even if Perez was actually guilty of the
omitted elements, he could still potentially satisfy the third plain-error prong by
showing that the government would have had a difficult time proving his guilt.
See id. at 1207–08.
Perez has made that showing, and the government’s arguments fail to establish
otherwise. The government merely reiterates that whatever Perez’s efforts to adjust
his status to lawful, there is no evidence that he completed the process and he never
obtained a green card or other documentation of lawful status. This is true, but it
only proves that Perez never had lawful status, not that he never thought he had
lawful status. The government does not have any direct evidence to contradict
Perez’s claims, and it could not force him to testify. There is simply no evidence that
Perez knew the government could prove its case against him absent his cooperation
and an admission that he knew, at the time of the offense, of his prohibited status.
Under similar circumstances, our sister circuits have found the third
plain-error prong satisfied. See United States v. Jawher, 950 F.3d 576, 580–81 (8th
Cir. 2020); United States v. Russell, 957 F.3d 1249, 1253–54 (11th Cir. 2020);
United States v. Balde, 943 F.3d 73, 97–98 (2d Cir. 2019). In each case, the court
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found the third plain-error prong satisfied where the defendant had a credible claim
that he thought he had lawful status, or, “[a]t the very least, . . . reasonable grounds
on which to contest his knowledge of his prohibited status to a jury.” Jawher,
950 F.3d at 580. Here too, Perez at least has reasonable grounds to contest this
element to a jury.
The government fails to distinguish those cases. It attempts to do so by
pointing out that each defendant had argued below that he had legal status, whereas
Perez did not. But here, unlike those cases, Perez was told that he was guilty merely
for being an alien in possession of a firearm, regardless of whether he was in the
United States lawfully or unlawfully. Thus, Perez had no reason to argue about his
status, because he could not dispute that he was an alien.
That Perez has a colorable argument to satisfy the third prong is further
supported by comparison to the Rehaif-fix cases the government cites in which courts
found this prong not satisfied. Those courts relied on overwhelming evidence of
guilt for the omitted element. For example, in Trujillo, a felon-in-possession case,
this Court found that the defendant could not “credibly claim he was unaware that he
was a felon” where he had been previously convicted of six felonies and sentenced to
twenty-four years in prison. 960 F.3d at 1208. Similarly, in United States v. Puri,
797 F. App’x 859 (5th Cir. 2020) (unpublished), an alien-in-possession case, the
defendant admitted that at the time of the offense he believed that he was unlawfully
present. Id. at 864.
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Perez has admitted no such knowledge at the time of the offense and he has a
credible claim that he lacked that knowledge. The government could gather further
evidence and argue against Perez’s claim at trial, and a jury might well reject it, but
“we cannot conclude on the present record that the government’s arguments are so
strong that [Perez] would have had no plausible defense at trial and no choice but to
plead guilty.” Balde, 943 F.3d at 97.
We reject each of the government’s arguments to the contrary, but we consider
two of note. 4 The first addresses the district court’s failure to inform Perez that only
unlawfully present aliens, not all aliens, are prohibited from possessing firearms.
The government argues that this error was non-prejudicial because Perez received
actual notice of that element from the information, which included the factual
allegation that Perez was “an alien, who was illegally and unlawfully in the United
States.” R., Vol. 1 at 135. That allegation was the only mention of that element in
the record.
The government cites United States v. Ferrel, 603 F.3d 758 (10th Cir. 2010),
as support for its notice theory. But in Ferrel, this Court found no effect on
substantial rights where an omitted element was (1) alleged in the indictment,
(2) repeated in the plea agreement, (3) repeated in the defendant’s plea statement, and
(4) discussed by the defendant with his attorney. Id. at 763–64. All that is
4 In addition to these two arguments, which were raised in the government’s
brief, at oral argument the government alluded to other offenses with which it could
have charged Perez. Those hypothetical charges are not supported by the record and
we do not consider them.
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significantly more substantial evidence of actual notice than exists here, where
claimed notice is based solely on a factual allegation in the information.
In further contrast with Ferrel, the pertinent element here was not just omitted,
it was affirmatively misrepresented. Perez’s plea agreement described the element as
“the defendant was an alien at the time he possessed the firearm.” R., Vol. 1 at 143.
This inaccurate description of the element nullifies any notice provided by the factual
allegation in the information. For these reasons, we reject the government’s
argument that Perez cannot satisfy the third prong because the information gave him
actual notice of this element. 5
The government’s second argument is based on its assertion that Perez
admitted below to being an unlawfully present alien. The government sees that
“admission” in (1) Perez’s failure to object to the PSR’s listing of his immigration
status as “illegal alien” and (2) various statements by Perez acknowledging that he is
undocumented and worked “under the table.” Aple. Br. 7, 12. The government
argues that this admission and Perez’s failure to raise any claim as to his lawful
status indicates that he knew all along he was illegal. But as mentioned above,
because Perez was told that the offense applied to all aliens, he never had reason to
argue that he had lawful status or that he thought he did.
5 Even if the factual allegation in the information had provided actual notice,
that would only apply to the error for the omitted element “an alien unlawfully or
illegally present in the United States,” not the omitted knowledge-of-status element.
Thus, this argument would not be fatal to Perez’s claim in any event.
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In addition, Perez’s “admissions” at the time of sentencing in 2019 are of
questionable significance as to his knowledge of his status at the time of the offense
in 2017. Perez admits that he now knows that he is unlawfully present and even
concedes that it is “very likely” he was unlawfully present at the time of the offense.
Aplt. Reply Br. 5–6. But that does not mean that at the time of the offense he knew
he was unlawfully present, and that is what the government would have had to prove.
In summary, we conclude that Perez has established a plausible defense to the
§ 922(g)(5) offense, because he has a credible claim that, at the time of the offense,
he was not aware that he was unlawfully present in the United States. We next
consider whether that plausible defense is sufficient to establish a reasonable
probability that, but for the district court’s error, he would not have pled guilty.
B. Despite his plausible defense, Perez has not established a reasonable
probability that, but for the district court’s error, he would not have pled
guilty.
In some Rehaif-fix cases, establishing a plausible defense based on the omitted
element might be sufficient to show that the error affected the defendant’s substantial
rights. But in light of the particular circumstances of Perez’s plea agreement, his
plausible-defense argument is not sufficient to make such a showing here.
We first consider the context of Perez’s plea agreement. In one sort of
plea-deal case, a defendant is charged with a particular offense and accepts a plea
deal because he thinks he has no defense to that charge and he hopes to receive some
sort of consideration for his plea, such as a reduced sentence. See, e.g., United States
v. Sanchez, 983 F.3d 1151, 1157 (10th Cir. 2020) (describing a defendant claiming
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Rehaif error after pleading guilty to being a felon in possession of a firearm after his
motion to suppress evidence was denied); see also U.S.S.G. § 3E1.1(a) (decreasing
the offense level for a defendant who “clearly demonstrates acceptance of
responsibility for his offense”). In such a case, we may presume that a plausible
defense based on an erroneously omitted element is enough to satisfy the third
plain-error prong. See Trujillo, 960 F.3d at 1207. But this is not that sort of case.
Here, Perez was not initially indicted for the firearms offense, he was indicted
for (1) distribution of at least 100 grams of heroin under 21 U.S.C. § 841(a)(1) and
(b)(1)(B); and (2) conspiracy to distribute at least 100 grams of heroin under
21 U.S.C. § 846. Those charges each carry a five-year mandatory minimum. In
exchange for the dismissal of those charges, Perez agreed to plead to an information
charging him with (1) the § 922(g)(5) firearms offense; and (2) distributing an
unspecified quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Both of
those charges lacked mandatory minimum sentences.
In light of those facts, we review what the plea agreement did for Perez and
what it did not do, and how those considerations speak to Perez’s motivations for
accepting the agreement. To start, the plea deal replaced the quantity-specific
distribution and conspiracy drug charges with an unspecified-quantity distribution
charge. This reveals two things: First, that Perez’s motivation could not have been
avoiding a drug charge, because the plea deal retained such a charge. Second, that
the new drug charge was uniquely tailored to Perez’s needs in that it omitted a
specific quantity of drugs. Although an unspecified-quantity charge is not unheard
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of, we think it uncommon. Such a charge does not implicate mandatory minimum
sentences. The unusualness of not having a specified quantity suggests that the new
charge was tailored to Perez’s desire to avoid mandatory minimums.
In addition to modifying the drug charges, the plea agreement added a new
charge: the firearms offense under § 922(g)(5). Under the Sentencing Guidelines,
that offense did not group with the unspecified-quantity drug charge, resulting in a
multiple count adjustment increasing Perez’s base offense level by one level. In
contrast, the original drug charges in the indictment would have grouped, resulting in
no adjustment for multiple counts. See U.S.S.G. § 3D1.2. The additional offense
level resulting from the non-grouping charges translated to an increase in the overall
advisory guidelines range, from 70 to 87 months to 78 to 97 months. Thus, accepting
the plea agreement resulted in a higher guidelines range than would have pleading to
the original charges.
In sum, the plea agreement (1) did not allow Perez to avoid a drug charge,
(2) added the new charge under § 922(g)(5), and (3) increased Perez’s guidelines
range by 8 to 10 months. It did, however, confer one significant benefit upon Perez
by allowing him to avoid any mandatory minimum sentence. Because the charges
implicating mandatory minimums were dismissed, Perez was able to argue for a
below-guideline sentence of 37 months, well below both the 78-to-97-month advisory
range he faced on the plea agreement charges and the five-year minimum he faced on
the original charges. Absent the plea agreement, Perez could not have argued for that
sentence. These circumstances make clear that Perez’s motivation for accepting the
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plea agreement was to avoid the mandatory minimums in the hope of obtaining a
downward variance and reducing his incarceration period. We can confidently
conclude this was Perez’s motivation because it was the only advantage offered to
Perez under the new plea offer that he accepted.
In essence, Perez gambled in accepting an 8-to-10-month increase in his
advisory range (from 70 to 87 months to 78 to 97 months) in exchange for avoiding
the 60-month mandatory minimums. Although Perez’s counsel suggested during oral
argument that the increased advisory range shows that the plea deal was not such a
great deal for Perez, that increase actually cuts against Perez’s case. By accepting a
higher advisory range in his plea agreement, Perez made clear that his motivation in
accepting the agreement was to avoid mandatory minimums so that he could argue
for a below-guidelines sentence.
Perez lost his gamble, as the district court rejected his downward-variance
argument and sentenced him to 78 months, at the bottom of the advisory range but
above the mandatory minimum he would have faced under the original charge.
Because Perez’s strategic choice did not pay off, he now wants to back out of his plea
deal. But e ven had Perez 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. Perez made a calculated decision to accept this plea
agreement in order to avoid the mandatory minimums. That calculus does not change
depending on whether or not Perez had a chance to beat the firearms offense, when
he was not charged with that offense in the first instance.
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Indeed, what really mattered was the government’s ability to prove the initial
drug charges, not its ability to prove the substitute firearms offense. Critically,
however, Perez never argues that the government would have had any difficulty in
proving those initial charges. Perez simply overlooks this point, arguing only that
because he has now established a plausible defense to the new gun charge, he
satisfies the third plain-error prong. 6 This fails to satisfy his obligation under that
prong.
We read the dissent as disagreeing with us on two main points. First, the
dissent deems Perez’s plausible-defense argument to the gun charge sufficient to
satisfy the third plain-error prong. We think this fails to appreciate the circumstances
under which Perez accepted the plea agreement, which was to avoid the mandatory-
minimum requirements of the initial drug charges. (See Aplt. Br. 2 (“[Perez] pled
guilty to both charges in the information in exchange for dismissal of the two
indicted counts.”).)
Second, in response to our reasoning, the dissent undertakes its own analysis
of the government’s ability to prove the initial drug charges, concluding that the
government would have had “extraordinary difficulty” in proving those charges.
(Dissent 8.) Accordingly, the dissent finds “a reasonable probability that absent the
6 The government additionally points out that Rehaif came out before Perez
was sentenced, such that Perez could have tried to withdraw his guilty plea on that
basis, but instead chose to stand by it in the hope of reduced sentencing. We reject
this argument because it would only have weight if Perez had actual knowledge of
Rehaif, and there is no such evidence.
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error, [Perez] wouldn’t have pleaded guilty because of (1) the weakness of the
government’s evidence showing knowledge of his unlawful status and (2) the
government’s inability to prove [Perez’s] constructive possession of at least
100 grams of heroin.” (Id. at 15–16.)
We cannot agree. To be sure, the dissent makes a credible argument that the
government might have had difficulty proving the initial drug charges. But because
Perez did not make that argument, this approach would require us to reverse under
plain-error review based on a ground not argued by the defendant. We decline to do
so. Instead, we affirm because it is Perez’s burden to establish that his substantial
rights were affected, and, by not arguing that the government would have had
difficulty in proving the initial drugs charges, he has not met his burden of proving
plain error.
In light of Perez’s motivation for taking the plea deal—a motivation that is
unchanged by Rehaif—he has not established a reasonable probability that, but for
the omitted elements, he would not have pleaded guilty. Thus, Perez fails to satisfy
the third prong of plain-error review. Because Perez does not satisfy that prong, we
need not consider the fourth prong. See Trujillo, 960 F.3d at 1208.
* * *
We conclude that the district court did not commit reversible plain error by
accepting Perez’s uninformed guilty plea because Perez fails to establish a reasonable
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probability that, but for the error, he would not have pleaded guilty. Accordingly, we
affirm his guilty plea and conviction. 7
IV. CONCLUSION
For the reasons provided above, we AFFIRM the district court on all issues
presented on appeal.
7 Perez had additionally argued that the district court’s error regarding the
firearms offense also required vacating the sentence for the unspecified-quantity drug
offense along with the sentence for the firearms offense. However, because we
affirm Perez’s firearms conviction, we also affirm the unspecified-quantity drug
sentence.
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