United States v. Games-Perez

• Decision Date: 23 January 2012
• Docket Number: No. 11–1011.,11–1011.
• Citation: 667 F.3d 1136
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Miguel GAMES–PEREZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

667 F.3d 1136

UNITED STATES of America, Plaintiff–Appellee,

v.Miguel GAMES–PEREZ, Defendant–Appellant.

No. 11–1011.

United States Court of Appeals, Tenth Circuit.

Jan. 23, 2012.

John Mosby, Denver, CO, Attorney for Appellant.

Ryan T. Bergsieker, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief) for Appellee.

Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant and appellant Miguel Games–Perez was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Claiming that he was unaware that he was actually a felon, Mr. Games–Perez filed a motion in limine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon. When that motion was denied, Mr. Games–Perez filed a motion to enter a conditional guilty plea under Fed.R.Crim.P. 11(a)(2), asking to reserve the right to appeal the district court's denial of his motion in limine. The district court granted Mr. Games–Perez's motion, pursuant to which he entered a conditional guilty plea. The district court sentenced him to fifty-seven months' imprisonment, followed by three years of supervised release. Mr. Games–Perez appeals his sentence, which we affirm.

BACKGROUND

On July 24, 2009, Mr. Games–Perez plead guilty to felony attempted robbery in a Colorado state court. In that state court proceeding, Mr. Games–Perez and the state government filed a motion and stipulation for a deferred judgment and sentence, which the state court granted. The state court's order granting the motion and stipulation stated that entry of judgment would be deferred for a two-year period. During that time, Mr. Games–Perez would be supervised by the Colorado Probation Department. Once he had satisfactorily completed his term of probation, he would be allowed to withdraw his guilty plea and the charges against him would be dismissed.

The motion and stipulation contained an express provision that “the Defendant shall not possess any firearms, destructive or dangerous devices or weapons.” R. Vol. 1 at 98. Both Mr. Games–Perez and his attorney signed the motion and stipulation, and Mr. Games–Perez's signature line was directly underneath a sentence stating, “I swear or affirm that I have read and understand this entire document, and every representation I have made is true.” Id. at 99.

Mr. Games–Perez simultaneously filed a request to plead guilty. It contained the following language:

I understand that if the Court accepts my guilty plea to a felony I will stand convicted of a felony. I understand that this felony conviction may be used against me in any future proceedings under the habitual criminal laws. I also understand that my felony conviction may be used against me in any future proceeding concerning my credibility. If I have entered into a Stipulation of a Deferred Judgment and Sentence, and I have not yet completed the terms of that agreement, my guilty plea may be used against me in any future proceeding. I understand if I have entered into a Stipulation of a Deferred Judgment and Sentence and I violate the terms of that agreement, I may stand convicted of a felony and then I will be re-sentenced by the Court.

Id. at 105, ¶ 13. Mr. Games–Perez initialed this paragraph, both Mr. Games–Perez and his attorney signed the request, and Mr. Games–Perez again averred that he had read and understood everything in the document.

In the subsequent plea colloquy, the following exchange took place:

THE COURT: Are you comfortable with understanding what you are giving up and what the consequences are of this plea so that you want to take this plea today?

THE DEFENDANT: Yes, ma'am.

THE COURT: Here is what will happen today, if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony and instead granted the privilege of a deferred judgment, which means you will be supervised by the Department of Probation for a period of two years.

But what I want you to understand is, because you are waiving your right to proceed to a jury trial for all time today, if something goes wrong during this deferred judgment and you don't do what we ask you to do, it is possible that you could be returned into court and at that time you can't ask me to go to a jury trial, do you understand that?

THE DEFENDANT: Yes, ma'am.

THE COURT: Because you are giving that up for all time and the likelihood is that you may end up being convicted of this felony even though you don't have a trial. Do you understand that?

THE DEFENDANT: Okay, ma'am.

THE COURT: That also means it is a Class 5 felony if you end up convicted. So it is all up to you. As you can tell what I'm saying, if you end up convicted, the Court could impose a prison term between one and three years in the Department of Corrections with a two-year period of mandatory parole.

Do you understand that that is the worst case scenario and it could happen in this case?

THE DEFENDANT: Yes, ma'am.

THE COURT: Do you have any questions for me about how that works?

THE DEFENDANT: No, ma'am.

THE COURT: Have you spent enough time meeting with your attorneys so that you feel you understand what your options are?

THE DEFENDANT: Yes, ma'am.

THE COURT: Was she able to answer all of your questions to your satisfaction?

THE DEFENDANT: Yes, ma'am.

THE COURT: Are you satisfied with her representation?

THE DEFENDANT: Yes, ma'am.

THE COURT: Are you thinking clearly this morning?

THE DEFENDANT: Yes, ma'am.

Tr. of Providence Hearing/Sentencing, R. Vol. 1 at 32–34. After further colloquy, the district court then stated, “All right. Then I accept the plea of guilty. I find it knowing, intelligent and voluntary. I have made written findings consistent with that determination. I am not entering judgment of conviction at this time, hopefully, I never will.” Id. at 38.

Finally, the court admonished Mr. Games–Perez to comply with everything required by the deferred judgment documents, and informed him further:

THE COURT: So please, please, be patient. This is such a really good offer, I would hate to see you throw this away, because eventually, if you come back to this courtroom on July 21, 2011, if you have done everything we have asked you to do, we are going to dismiss this case; but more importantly, you can have this removed from your record. It is a big deal. So please take advantage of it, okay?

THE DEFENDANT: Okay, ma'am.

Id. at 41–42.

On July 27, 2009, following the first meeting between Mr. Games–Perez and his probation officer, Mr. Games–Perez signed two documents. The first was a “Waiver of Extradition as a Condition of Probation,” which begins with “I, Games–PEREZ, MIGUEL have been convicted of a Felony offense on July 24, 2009[.]” Id. at 116. The second document stipulated the conditions of Mr. Games–Perez's probation, and it stated “You shall not possess any firearm, explosive or other destructive device, or any other dangerous weapon, unless you obtain written permission from the Court.” Id. at 119. Mr. Games–Perez put his initials beside this sentence and signed the document.

Less than one year later, on May 9, 2010, Mr. Games–Perez encountered members of the Denver police force when he was walking away from a park in Denver where multiple gunshots had apparently just been fired. When the officers tried to talk to him, he fled. The police caught Mr. Games–Perez, who was holding one hand up in the air while his other hand held, by the barrel, a fully loaded Hi–Point .380 caliber pistol with an obliterated serial number. Mr. Games–Perez was taken into custody.

Upon further investigation, police officers determined that he had been at the park with an individual whose gunshots hit another person. The caliber of the firearm recovered from Mr. Games–Perez did not match the caliber of the rounds found in the wounded individual. This incident led to the felon-in-possession charge at issue in this case.

On May 13, 2010, Mr. Games–Perez made an initial appearance before a magistrate judge. After advising him about the charge filed against him and the maximum penalties possible, the following exchange occurred:

THE COURT: ... I want to tell you about the charges against you and the rights that you have in this court.

THE DEFENDANT: Yes, ma'am.

THE COURT: You've been charged with one count of possession of a firearm by a previously convicted felon. The penalty on that count is not more than ten years imprisonment, a $250,000 fine, or both, not more than three years' of supervised release, and a $100 special assessment fee.

Do you understand the general nature of the charge against you?

THE DEFENDANT: Not really, ma'am, but ...

THE COURT: What part don't you understand?

THE DEFENDANT: Like why is like a lot of time with the, you know, the charge? I understand I'm a previous felon.

THE COURT: Yes.

THE DEFENDANT: That goes—like if I get caught with a firearm, that's the minimum I get?

THE COURT: Are you asking about the penalty?

THE DEFENDANT: Yeah.

THE COURT: Yes. Yes, this is the penalty that applies for this charge, which is possession of a firearm by a previously convicted felon. Yes, it's not more than ten years....

R. Vol. 1 at 121–22.

Mr. Games–Perez then filed a motion in limine, as stated above, seeking a pre-trial order that the jury be instructed that the government must prove that he knew he was a felon at the time of the instant offense. He argued that, because of the ambiguity in the colloquy with the state court judge regarding his deferred conviction, he did not know he was a convicted felon. Thus, although he acknowledges that our court has expressly held that “the only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm,” United States v. Capps, 77 F.3d 350, 352 (10th Cir.1996), he argues his case is distinguishable from Capps and/or Capps was simply wrongly decided.

The district court denied Mr. Games–Perez's motion in...