United States of America v. Daniel Ray Dace

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL RAY DACE,
Defendant - Appellant.
No. 20-1343
(D.C. No. 1:16-CR-00383-RBJ-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.
_________________________________
Daniel Ray Dace pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Two years later, the Supreme Court held in
Rehaif v. United States, 139 S. Ct. 2191, 2199-2200 (2019), that an element of a
§ 922(g) offense requires that the defendant knew his prohibited status—here, that
Mr. Dace was a felon—at the time he possessed the firearm. Based on Rehaif,
Mr. Dace moved to vacate his conviction and sentence under 28 U.S.C. § 2255,
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 28, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 1

-- 1 of 11 --

2
claiming his guilty plea was invalid because he was not advised that knowledge of
his status is an element of the offense. The district court initially granted the motion
but then denied it on reconsideration, ruling the claim was procedurally defaulted.
Nonetheless, the court granted a certificate of appealability (COA), and Mr. Dace
appealed. Exercising jurisdiction under 28 U.S.C §§ 1291 and 2255(d), we affirm.
I
Mr. Dace was arrested on an outstanding warrant during a traffic stop. He was
a passenger in the vehicle, had over $1,800 on his person, and initially gave police a
fictitious name. A consensual search of the vehicle turned up two firearms, a digital
scale, hundreds of plastic baggies, and 331 grams of methamphetamine. Mr. Dace
later called his mother from jail and during a recorded conversation told her to “go
get my guns,” which he intended to sell. R., vol. 1 at 17 (internal quotation marks
omitted). Based on that call, police obtained a warrant for his mother’s home, where
they recovered seven additional firearms, all of which Mr. Dace admitted were his.
He also admitted that the drugs and guns recovered during the traffic stop were his
and that he sold the drugs for “pure profit.” Id. (internal quotation marks omitted).
At the time of his arrest, Mr. Dace had been previously convicted of a felony for
which he received a deferred sentence and served no prison time.
Based on these circumstances, Mr. Dace pleaded guilty to two counts of
possession of a firearm by a previously convicted felon in violation of §§ 922(g)(1)
and 924(a)(2), one count of possession of a controlled substance with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), and one count of
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 2

-- 2 of 11 --

3
possession of a firearm during and in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). The plea agreement stated the elements of a
§ 922(g)(1) violation as follows:
First: the Defendant knowingly possessed a firearm.
Second: the Defendant was convicted of a felony, that is, a crime
punishable by imprisonment for a term exceeding one year, before he
possessed the firearm; and
Third: before the Defendant possessed the firearm, the firearm had
moved at some time from one state to another.
R., vol. 1 at 12-13.
At the change of plea hearing, the district court advised Mr. Dace that the
elements of § 922(g)(1) required: “first . . . that you knowingly possessed a firearm;
second, that you were convicted of a felony before you possessed the firearm; and,
third, that th[e] firearm had moved at some point in interstate commerce.” R., vol. 3
at 9. Mr. Dace did not object to the advisement, and he admitted he was guilty of a
crime with these elements. The district court accepted his guilty plea and sentenced
him to 108 months in prison on the trafficking count, concurrent with 108 months
each on the two § 922(g) counts, and consecutive to a mandatory minimum term of
60 months on the § 924(c) count, for an aggregate sentence of 168 months in prison.
Mr. Dace unsuccessfully challenged the substantive reasonableness of his sentence
on direct appeal, but he did not challenge the validity of his plea. See United States
v. Dace, 720 F. App’x 961, 962, 964 (10th Cir. 2018).
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 3

-- 3 of 11 --

4
When the district court advised Mr. Dace on the elements of a § 922(g)
violation, the law did not require the government to prove he knew his status as a
felon to obtain a conviction. See, e.g., United States v. Silva, 889 F.3d 704, 711
(10th Cir. 2018). Two years later, however, the Supreme Court held in Rehaif that a
defendant’s knowledge of his prohibited status is an element of § 922(g). 139 S. Ct.
2199-2200. Thus, based on Rehaif, Mr. Dace filed his § 2255 motion, claiming his
guilty plea should be vacated because the district court failed to accurately advise
him on the nature of the offense. 1
The district court initially granted the motion but then denied relief on the
government’s request for reconsideration. The court determined that Mr. Dace’s
Rehaif claim was procedurally defaulted because he failed to raise it on direct appeal,
and although he had cause for failing to raise the claim, he could not show prejudice
to excuse the default. The court acknowledged that his previous felony conviction
resulted in a deferred sentence and no prison time, but the court also recognized that
he did not dispute that he was informed under Colorado Rule of Criminal Procedure
11(b)(4) of the potential penalty he faced when he pleaded guilty to his prior felony. 2
Given this advisement under Colorado law, the court determined the government
would have faced only “slight evidentiary difficulties” proving the Rehaif element.
1 We assume without deciding that Rehaif applies retroactively in an initial
§ 2255 motion.
2 The court noted, however, that the record does not conclusively establish that
he received the advisement.
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 4

-- 4 of 11 --

5
R., vol. 1 at 90. Moreover, the court noted that Mr. Dace agreed that his “primary
concern” in negotiating his plea agreement “was limiting his eventual sentence,
which was driven entirely by the drug charge and the § 924(c) charge.” Id. (internal
quotation marks omitted). Indeed, “[he] admit[ted] that the § 922(g) convictions did
not affect the sentencing range,” and thus the court was unconvinced that “he would
have fought including those charges in his plea agreement.” Id. (brackets and
internal quotation marks omitted). Consequently, the court concluded that Mr. Dace
failed to show a reasonable probability that he would have gone to trial on the
§ 922(g) charges but for the Rehaif error and, therefore, he could not establish
prejudice to excuse the procedural default. Nonetheless, the court issued a COA, and
Mr. Dace appealed.
II
“In a § 2255 appeal, we review the district court’s findings of fact for clear
error and its conclusions of law de novo.” United States v. Lewis, 904 F.3d 867, 870
(10th Cir. 2018) (internal quotation marks omitted). “A plea of guilty is
constitutionally valid only to the extent it is voluntary and intelligent.” Bousley v.
United States, 523 U.S. 614, 618 (1998) (internal quotation marks omitted). “[A]
plea does not qualify as intelligent unless a criminal defendant first receives real
notice of the true nature of the charge against him.” Id. (internal quotation marks
omitted). Nonetheless, the “intelligence of a guilty plea can be attacked on collateral
review only if first challenged on direct review.” Id. at 621. Failure to raise a claim
on direct appeal results in procedural default, which precludes relief on habeas
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 5

-- 5 of 11 --

6
review unless “the defendant can first demonstrate [both] cause and actual
prejudice.” Id. at 621-22 (internal quotation marks omitted). 3
We need not decide whether Mr. Dace can show cause because he cannot
establish he was prejudiced by the district court’s failure to advise him under Rehaif.
See United States v. Frady, 456 U.S. 152, 168 (1982) (declining to consider cause
because petitioner could not show prejudice). Prejudice requires “an error of
constitutional dimensions that worked to his actual and substantial disadvantage.”
United States v. Snyder, 871 F.3d 1122, 1128 (10th Cir. 2017) (internal quotation
marks omitted). The mere “possibility of prejudice” is not enough to excuse a
procedural default. Frady, 456 U.S. at 170 (italics omitted). A movant must show
“there is a reasonable probability that, but for [the error], he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). A movant may establish prejudice with “evidence tending to show that had
he been advised [properly], he would have elected to proceed to trial.” United States
v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004).
Mr. Dace fails to meet his burden. See Frady, 456 U.S. at 170 (recognizing it
is the movant’s burden to show prejudice). He does not contend that he would have
presented evidence that he did not know he was a felon. See Greer v. United States,
141 S. Ct. 2090, 2097 (2021) (holding that on plain-error review, if a defendant does
not argue that he would have presented evidence that he did not know he was a felon,
3 A movant may also assert his actual innocence, see United States v. Hisey,
12 F.4th 1231, 1235 (10th Cir. 2021), but Mr. Dace asserts no such theory.
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 6

-- 6 of 11 --

7
“the appellate court will have no reason to believe that the defendant would have
presented such evidence to a jury, and thus no basis to conclude that there is a
‘reasonable probability’ that the outcome would have been different absent the Rehaif
error”). Instead, Mr. Dace first contends that we may infer he would not have
pleaded guilty but for the Rehaif error because the government’s evidence was
“extremely weak.” Aplt. Br. at 11. He points out that he received only a deferred
sentence for his prior felony and never went to jail, so the government might have
had difficulty proving he knew he had been previously convicted of a crime
punishable by more than a year in prison. There are at least two problems with this
argument.
First, by relying on what Mr. Dace says is the government’s “extremely weak”
evidence, see id., Mr. Dace attempts to improperly shift the burden to the government
to show he would not have gone to trial but for the Rehaif error. But on collateral
review, it is his burden—not the government’s—to show a reasonable probability that
he would have gone to trial but for the Rehaif error. See Hill, 474 U.S. at 59; Frady,
456 U.S. at 170. Thus, even if the government may have had some difficulty proving
he knew he was a felon, that alone does not establish a reasonable probability that he
would have gone to trial.
Second, contrary to Mr. Dace’s assertion, the government’s evidence on the
Rehaif element was not weak. The district court determined the government would
have faced only “slight evidentiary difficulties” proving he knew he was a felon
because Colorado Rule of Criminal Procedure 11(b)(4) conditioned the state court’s
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 7

-- 7 of 11 --

8
acceptance of his guilty plea to his prior felony on the state court’s advisement of the
potential penalties he faced and his confirmation that he understood those penalties.
R., vol. 1 at 90. Mr. Dace does not deny that the state court complied with this rule.
Instead, he asserts the district court overemphasized the probative weight of the
advisement, which he may not have remembered two years later when he was
arrested with the guns during the traffic stop. But the Supreme Court recently
explained, in evaluating a pair of Rehaif claims under the plain-error standard
governing unpreserved claims raised on direct appeal, that a felon’s faulty memory is
usually insufficient to establish he did not know he was a felon:
In a felon-in-possession case where the defendant was in fact a felon
when he possessed firearms, the defendant faces an uphill climb in
trying to satisfy the substantial-rights prong of the plain-error test based
on an argument that he did not know he was a felon. The reason is
simple: If a person is a felon, he ordinarily knows he is a felon. Felony
status is simply not the kind of thing that one forgets. That simple truth
is not lost upon juries. Thus, absent a reason to conclude otherwise, a
jury will usually find that a defendant knew he was a felon based on the
fact that he was a felon.
Greer, 141 S. Ct. at 2097 (internal quotation marks and citation omitted).
Mr. Dace does not deny that he was properly advised under Colorado law that
his predicate conviction was a felony. He admitted he had been convicted of a felony
when he pleaded guilty to the § 922(g) violation. He has offered no evidence
indicating he did not know he was a felon when he possessed the guns. See id. at
2098 (noting defendants did not argue or represent “that they would have presented
evidence at trial that they did not in fact know they were felons when they possessed
firearms”). And his burden on collateral review is even more onerous than the
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 8

-- 8 of 11 --

9
“difficult” plain-error standard that governed in Greer, 141 S. Ct. at 2097 (internal
quotation marks omitted). See United States v. Bailey, 286 F.3d 1219, 1222-23
(10th Cir. 2002) (concluding that appellant could not show actual prejudice for
purposes of obtaining collateral relief where he failed to satisfy the less onerous
standard of plain-error review). Thus, his unsupported assertion that he may not have
remembered he was a felon is insufficient to show a reasonable probability he would
have gone to trial but for the Rehaif error.
Even still, Mr. Dace contends he might have negotiated a more favorable plea
agreement if he had been advised the government was required to prove he knew he
was a felon. He says the § 922(g) counts did not affect his guideline range and thus
the Rehaif element would have given him additional leverage to negotiate a plea that
excluded those counts. But whatever leverage he might have had based on the Rehaif
element would have been undermined by the advisement he should have received
regarding the potential penalties he faced when he pleaded guilty to his prior felony
in state court. And in any event, the record indicates he was not concerned with
negotiating a plea agreement that excluded the § 922(g) counts. Rather, the district
court determined that “his primary concern was limiting his eventual sentence, which
was driven entirely by the drug charge and the § 924(c) charge.” R., vol. 1 at 90
(internal quotation marks omitted). Indeed, Mr. Dace acknowledges that his
sentencing range was “driven by the drug charge . . . and the § 924(c) count,” Aplt.
Br. at 13, and the evidence on those counts was overwhelming. Mr. Dace admitted
the guns and drugs recovered during the traffic stop were his and that he was selling
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 9

-- 9 of 11 --

10
the methamphetamine for profit. He also “admit[ted] that the § 922(g) convictions
did not affect the sentencing range at all.” R., vol. 1 at 90 (brackets and internal
quotation marks omitted). Given these circumstances, the district court questioned
why he would have sought to exclude the § 922 counts from his plea agreement.
Mr. Dace cites no evidence suggesting a reasonable probability that he would have.
At the same time, by accepting the plea agreement with the § 922(g) counts,
Mr. Dace realized a substantial benefit because the government agreed to a three-
level reduction in his offense level and to recommend a sentence no greater than
fifteen years. This reduced his overall exposure from 151-188 months in prison (plus
the mandatory consecutive 60-month term for the § 924(c) count) to 108-135 months
(plus the 60 months). And the fact that he accepted the plea agreement with the
§ 922(g) counts believing they did not affect his guideline range confirms that his
principal motivation was to reduce his overall sentence, which he admits was driven
by the drug charge and the § 924(c) count.
Nonetheless, Mr. Dace contends the district court improperly discounted his
interests in trying to exclude the § 922(g) counts from his plea. He says they were
likely aggravating factors in the district court’s sentencing analysis under 18 U.S.C.
§ 3553(a) and he faced the possibility of consecutive terms if convicted. But he also
must have considered the three-point reduction in his offense level that he obtained
by pleading guilty, which substantially lowered his sentencing range. The district
court would have specifically accounted for this lower guideline range in its
§ 3553(a) analysis. See 18 U.S.C. § 3553(a)(4). The district court also would have
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 10

-- 10 of 11 --

11
considered the government’s concession not to recommend a sentence greater than
fifteen years in prison. Nothing about these sentencing considerations suggests the
Rehaif error altered Mr. Dace’s motivation for pleading guilty. Thus, he fails to
show a reasonable probability that, but for the error, he would not have pleaded
guilty. It follows, then, that Mr. Dace cannot establish prejudice to excuse his
procedural default. 4
III
Accordingly, the judgment of the district court is affirmed. 5
Entered for the Court
Jerome A. Holmes
Circuit Judge
4 Mr. Dace seeks to preserve an argument that failure to advise a defendant
under Rehaif is structural error warranting automatic reversal. However, this
argument is foreclosed by Greer, which held that “Rehaif errors fit comfortably
within the general rule that a constitutional error does not automatically require
reversal of a conviction,” 141 S. Ct. at 2100 (internal quotation marks omitted).
5 In light of our disposition, we need not consider the parties’ harmless-error
arguments.
Appellate Case: 20-1343 Document: 010110596931 Date Filed: 10/28/2021 Page: 11

-- 11 of 11 --