United States of America v. Brandon Lafraye Nelson

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON LAFRAYE NELSON,
Defendant - Appellant.
No. 20-1340
(D.C. No. 1:16-CR-00192-RBJ-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and HOLMES, Circuit Judges.
_________________________________
Brandon LaFraye 1 Nelson filed a 28 U.S.C. § 2255 motion, seeking to vacate
his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He claimed his plea was invalid because the district court failed to
advise him under Rehaif v. United States, 139 S. Ct. 2191 (2019), that the
government had to prove, as an element of the offense, that he knew his prohibited
* 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1 The record indicates that Mr. Nelson’s middle name is “LAdraye,” e.g.,
R., vol. 1 at 53-54, but consistent with the parties’ briefing, we use “LaFraye.”
FILED
United States Court of Appeals
Tenth Circuit
October 28, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 1

-- 1 of 10 --

2
status—viz., that he was a felon, when he possessed the firearm. The district court
denied the motion, ruling the claim was procedurally defaulted because Mr. Nelson
failed to raise it on direct appeal, but the court granted a certificate of appealability
(COA). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2255(d), we affirm.
I
In 2016, police responded to reports of gunshots fired in a Denver, Colorado
neighborhood. Shortly after police arrived on scene, an officer spotted Mr. Nelson
approximately one-half mile away. He matched the general description of the
suspect, and as the officer approached, Mr. Nelson ran, drew a gun from his waist,
and threw it onto the front porch of a residence. He was apprehended when he fell,
and police immediately recovered the gun, which was loaded, from the porch. Shell
casings matching the gun were found at the location where the shots were fired, and
Mr. Nelson admitted that he possessed the gun, although he denied that he was the
person who fired it. At that time, he had two prior felony convictions for possession
of a weapon by a previous offender and distribution of a controlled substance.
Mr. Nelson was indicted on two counts of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to
the first count, and in exchange for his plea, the government agreed to dismiss the
second count. The plea agreement described the elements of the offense 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
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 2

-- 2 of 10 --

3
Third: Before the defendant possessed the firearm, the firearm had
moved across state lines.
R., vol. 1 at 11. At the change of plea hearing, the district court advised Mr. Nelson
that the government had to prove each of these elements to convict him under
§ 922(g)(1). He did not object to the advisement, and he admitted that he had been
twice previously convicted of a felony. His applicable sentencing guideline range
was 46-57 months in prison, and after accepting his plea, the district court sentenced
him to 51 months in prison. Consistent with his plea agreement, Mr. Nelson did not
appeal. 2
When Mr. Nelson pleaded guilty, the law did not require that he know he was
a felon at the time he possessed the gun to convict him under § 922(g)(1). See, e.g.,
United States v. Silva, 889 F.3d 704, 711 (10th Cir. 2018). Afterwards, however, the
Supreme Court held in Rehaif that a defendant’s knowledge of his prohibited status is
an element of a § 922(g) offense. 139 S. Ct. at 2199-2200. Thus, based on Rehaif,
Mr. Nelson filed an amended § 2255 motion, seeking to vacate his guilty plea
because the district court failed to advise him that he needed to know he was a felon
at the time he possessed the gun to convict him under § 922(g)(1). 3 The district
court, by minute order, denied the motion, ruling Mr. Nelson procedurally defaulted
2 Mr. Nelson’s plea agreement contained a waiver of both his right to an
appeal and his right to bring a collateral attack under 28 U.S.C. § 2255, but the
government does not seek to enforce the § 2255 waiver. See Aplee. Br. at 7 n.2.
3 The government concedes for purposes of this appeal that Rehaif applies
retroactively to cases on collateral review. See Resp. Br. at 7.
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 3

-- 3 of 10 --

4
his claim by failing to raise it on direct appeal and, in any event, he stipulated he had
been previously convicted of a crime punishable by more than one year in prison.
The court reaffirmed its decision on reconsideration but granted a COA.
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). However, 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 collateral
review unless “the defendant can first demonstrate [both] cause and actual
prejudice.” Id. at 621-22 (internal quotation marks omitted). 4
We need not decide whether Mr. Nelson 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
4 A movant also may overcome procedural default by demonstrating actual
innocence, see, e.g., United States v. Hisey, 12 F.4th 1231, 1235 (10th Cir. 2021), but
Mr. Nelson does not pursue an actual-innocence theory, see Aplt. Br. at 3 n.2.
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 4

-- 4 of 10 --

5
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. Nelson fails to meet his burden. See Frady, 456 U.S. at 170 (recognizing
it is the movant’s burden to show prejudice). He first contends the district court
erred in deducing that he knew he was a felon at the time he possessed the gun
because he stipulated he was a felon at the time he pleaded guilty. He argues that
despite his stipulation, he may not have known he was a felon earlier when he
actually possessed the gun. While his stipulation may not conclusively establish that
he knew he was a felon at the time he possessed the gun, some courts, including this
one, have recognized that a defendant’s stipulation to his prior felony permits the
inference that he did know of his prohibited status. See United States v. Arthurs,
823 F. App’x 692, 696 (10th Cir. 2020) (noting a defendant’s stipulation to his prior
felony, “though not dispositive, can provide a basis for a jury to infer that the
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 5

-- 5 of 10 --

6
defendant knew of his or her prohibited status”); 5 United States v. Raymore, 965 F.3d
475, 485-86 (6th Cir. 2020) (recognizing on plain-error review that, “while [the
defendant’s] stipulation does not automatically establish [his] knowledge of his
status, it is strongly suggestive of it” (brackets and internal quotation marks
omitted)). In fact, the Supreme Court recently evaluated a pair of Rehaif claims
under the plain-error standard governing unpreserved claims raised on direct appeal
and observed that, ordinarily, a felon knows he is 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 v. United States, 141 S. Ct. 2090, 2097 (2021) (internal quotation marks and
citation omitted).
Mr. Nelson cites no evidence indicating he did not know he was a felon when
he possessed the gun. 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”). He stipulated that he had been twice
convicted of a felony when he pleaded guilty to the § 922(g) violation. And his
5 We may cite unpublished decisions for their persuasive value. See Fed. R.
App. P. 32.1; 10th Cir. R. 32.1(A).
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 6

-- 6 of 10 --

7
burden on collateral review is even more onerous than the “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). Nothing about this argument suggests a reasonable probability that
Mr. Nelson would have gone to trial if he had known of the Rehaif element. See Hill,
474 U.S. at 59.
Mr. Nelson also contends the government’s evidence on the Rehaif element
was weak. He says he was sentenced only to 60 days in jail and to probation,
respectively, for his prior felonies, and thus, he might not have known his convictions
were felonies punishable by more than one year in prison because he was not
sentenced, and did not serve, more than a year in prison. But it is his burden to show
a reasonable probability that he would have gone to trial but for the Rehaif error. See
id.; Frady, 456 U.S. at 170. This argument attempts to improperly shift the burden to
the government to show he would not have gone to trial if he had been correctly
advised. And even if the government may have had some difficulty proving
Mr. Nelson knew his prohibited status, that alone does not show a reasonable
probability that he would have gone to trial.
Finally, Mr. Nelson suggests he may not have known he was prohibited from
possessing a gun under federal law because one of his prior felonies—possession of a
weapon by a previous offender—was based on his state juvenile adjudications. But
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 7

-- 7 of 10 --

8
his juvenile adjudications are irrelevant here. This is not a case in which the record
suggests the petitioner may have been confused that a single adult felony conviction
was one of several violent juvenile adjudications. Cf. United States v. Wilson,
853 F. App’x 297, 305-06 (10th Cir. 2021). Mr. Nelson had three felony juvenile
adjudications, several adult infractions, and two adult felony convictions. The adult
felony convictions were the exclusive predicate for his guilty plea for violating
§ 922(g)(1). See R., vol. 1 at 13. Although he was sentenced to less than a year in
prison and was convicted of one of those adult felony offenses—possession of a
weapon by a previous offender—at the age of 18, he was 23 when he pleaded guilty
in 2012 to his second adult felony for distribution of a controlled substance, see id. at
35. 6 Given these circumstances, there is no plausible argument that he was confused
that his second adult felony conviction was a juvenile adjudication. And his service
of less than one year in prison is not, by itself, enough to sustain his burden. The
question before us, then, remains whether he has shown a reasonable probability that
he would have demanded a trial if he had been advised that the government needed to
prove, as an element of the § 922(g) offense, that he knew he was a felon when he
possessed the gun. Again, Mr. Nelson offers no evidence indicating he would have
6 The record does not definitively indicate that Mr. Nelson was 23 when he
pleaded guilty to his second adult felony conviction, but the district court noted he
was 21 in 2010, so we assume he was 23 two years later when he pleaded guilty to
the second adult felony in 2012. Our analysis would be the same, however, even if
he was still 22 when he was convicted of the second adult felony.
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 8

-- 8 of 10 --

9
made that choice. To the contrary, the record suggests he would not have gone to
trial, even if he had known the government needed to prove the Rehaif element.
Indeed, Mr. Nelson admitted that he possessed the gun. He also stipulated that
he had two prior felony convictions. When the police approached him, he fled on
foot, drew the gun from his waist, and threw it onto the front porch of the residence.
This behavior, consistent with his admissions, strongly suggests that he knew he was
a felon at the time he possessed the gun. See United States v. Innocent, 977 F.3d
1077, 1083 (11th Cir. 2020) (noting defendant “behaved in a way that suggested he
knew he was not allowed to possess a gun when he immediately dropped the gun into
someone else’s car and left the scene when he saw police approaching”), cert. denied,
2021 WL 2519342 (U.S. June 21, 2021); United States v. Brandon, 965 F.3d 427,
433 (5th Cir. 2020) (concluding that “circumstantial evidence,” including defendant’s
admission that he handed the firearm to a passenger for concealment when police
approached, showed defendant’s “aware[eness] of his prohibited status when he
possessed the firearm”), cert. denied, 2021 WL 2519212 (U.S. June 21, 2021). In
light of this and other evidence, Mr. Nelson entered into a plea agreement by which
he obtained a three-point reduction to his offense level and the dismissal of the
second § 922(g)(1) count. Under these circumstances, we fail to see a reasonable
probability that Mr. Nelson would have gone to trial but for the Rehaif error.
Therefore, he has not shown prejudice to excuse the procedural default. 7
7 Mr. Nelson seeks to preserve an argument asserting that the failure to advise
a defendant under Rehaif is a structural error that warrants automatic reversal. This
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 9

-- 9 of 10 --

10
III
The judgment of the district court is affirmed. 8
Entered for the Court
Jerome A. Holmes
Circuit Judge
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).
8 In light of our disposition, we need not consider the parties’ harmless-error
arguments.
Appellate Case: 20-1340 Document: 010110596927 Date Filed: 10/28/2021 Page: 10

-- 10 of 10 --