United States v. Games–Perez

• Decision Date: 17 September 2012
• Docket Number: No. 11–1011.,11–1011.
• Citation: 695 F.3d 1104
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Miguel GAMES–PEREZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

695 F.3d 1104

UNITED STATES of America, Plaintiff–Appellee,

v.Miguel GAMES–PEREZ, Defendant–Appellant.

No. 11–1011.

United States Court of Appeals, Tenth Circuit.

Sept. 17, 2012.

Ryan Thomas Bergsieker, Andrew A. Vogt, Office of the United States Attorney, Denver, CO, for Plaintiff–Appellee.

David E. Johnson, Raymond P. Moore, Federal Public Defender, Jill M. Wichlens, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, CO, for Defendant–Appellant.

Before BRISCOE, Chief Judge, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON, Circuit Judges.

ORDER

This matter is before the court on appellant's Petition for Rehearing En Banc. We also have a response from the appellee. The en banc request and response were circulated to all the judges of the court who are in regular active service. A poll was called, and a majority of the court declined to grant en banc review. Consequently, the petition request is denied. SeeFed. R.App. P. 35(a). Judges Tymkovich, Gorsuch, Holmes, and Matheson would grant the petition for rehearing en banc.

MURPHY, Circuit Judge, concurring in the denial of rehearing en banc.

I join the order denying en banc review (the “Order”). I write to clarify why it is appropriate to deny Games–Perez's petition for rehearing en banc.

It is only at this very late stage in the proceedings that this case has come to be about whether the plain language of two provisions of the United States Code, 18 U.S.C. §§ 922(g)(1) and 924(a)(2)—which respectively prohibit possession of a firearm by a felon and set out the penalty for that criminal conduct ¹—require for conviction knowledge by a defendant of his status as a felon. The Dissent asserts the answer to this late-arriving question is unquestionably “yes” and the failure of the en banc court to take it up works an obvious injustice. Dissenting Op. at 1116–17. Before the panel, however, Games–Perez never asserted the plain-language argument identified by the Dissent. Instead, after recognizing this court previously held that knowledge of felonious status is not an element of the crime set out in § 922(g)(1), United States v. Capps, 77 F.3d 350, 352 (10th Cir.1996), Games–Perez asserted Capps, and the cases Capps relied on, were not controlling because they involved mistakes of law, while he is asserting a mistake of fact.

The panel majority rejected Games–Perez's arguments and affirmed his conviction. Relying on this court's decision in Capps, and noting every circuit court to address the question had reached the same conclusion, the panel majority reaffirmed that knowledge of felonious status is not an element of the crime set out in § 922(g)(1). United States v. Games–Perez, 667 F.3d 1136, 1140–42 (10th Cir.2012); see also Capps, 77 F.3d at 352 (“[T]he only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm.” (quotation omitted)).

In a separate concurring opinion, Judge Gorsuch opined that Capps was wrongly decided. Games–Perez, 667 F.3d at 1142–43 (Gorsuch, J., concurring). In particular, he asserted “Capps's holding—that the government doesn't have to prove a defendant knew he was a felon—simply can't be squared with the text of the relevant statutes.” Id. at 1143.But see Cone v. Bell, 556 U.S. 449, 482, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) ( “Appellate courts generally do not reach out to decide issues not raised by the appellant.”). Nevertheless, because the panel was bound by the decision in Capps, Judge Gorsuch concurred in the judgment. Id. at 1142.

Games–Perez thereafter filed the instant petition for rehearing en banc asserting for the very first time that Capps was wrongly decided because the plain language of § 924(a)(2) unambiguously requiresthe government to prove knowledge of felonious status to obtain a conviction under § 922(g)(1).²But see United States v. Charley, 189 F.3d 1251, 1264 n. 16 (10th Cir.1999) (“It is axiomatic that petitions for rehearing are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief.” (quotation and alterations omitted)). A majority of this court has now voted to deny rehearing en banc. In response, the Dissent asserts this court's refusal to set aside Capps subjects both Games–Perez and criminal defendants generally to a continuing injustice. Dissenting Op. at 1116–17.

Before addressing the Dissent's assertion of injustice and concomitant claim that the merits of its plain-language argument are undeniably correct, it is necessary to identify substantial procedural impediments to addressing the issue set out in the Dissent. As noted above, the crux of the Dissent is its assertion that, taken together, §§ 922(g)(1) and 924(a)(2) plainly and unambiguously require the government to prove a defendant's awareness of his felonious status to obtain a conviction for violating the terms of § 922(g)(1). Dissenting Op. at 1117–19. As recognized by the Dissent, however, the very first time this issue was raised in this case was in the panel concurrence. Id. at 1117–18. To be clear, at no point in its filings before the district court did Games–Perez ever assert Capps was wrongly decided. Instead, in his motion in limine, he argued only that his case was distinguishable from Capps because Capps involved a mistake of law and he was asserting a mistake of fact.

Games–Perez affirmatively waived the issue set out in his petition for rehearing when he entered his guilty plea in district court. The record makes clear Games–Perez entered into a conditional guilty plea pursuant to the terms of Fed.R.Crim.P. 11(a)(2). “Although a defendant may not normally appeal his conviction after pleading guilty, ‘[w]ith the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.’ ” United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004). Accordingly, Games–Perez is entitled to raise his belated plain-language argument only if he reserved that issue in his conditional guilty plea. Id.

In his motion to enter a conditional guilty plea, Games–Perez indicated as follows: “Defendant by this motion[ ] seeks to reserve ‘in writing’ the right to have an appellate court review this Court's adverse determination issued on September 10, 2010 (Doc. 39)[, i.e., the district court's] order denying Defendant's Motion in Limine (Doc. 27) filed on August 18, 2010.” As recognized by the Dissent, the issue Games–Perez now seeks to bring before the court was not included in Games–Perez's motion in limine. Dissenting Op. at 1117–18 (recognizing that the first time the issue was raised was when it was raised in the panel concurrence).³ The district court's minute order memorializing the terms of the conditional plea specifically noted that “the issue being reserved for appeal is stated in defendant's motion to enter a conditional plea.” Thus, the record makes clear Games–Perez did not preserve the issue upon which he seeks en banc review. Furthermore, because this late-arriving argument is clearly within the scope of the waiver,⁴ was the product of a knowing and voluntary guilty plea, and does not result in a miscarriage of justice,⁵ summary denial of Games–Perez's en banc petition is appropriate. Anderson, 374 F.3d at 957–59, 957.

According to the Dissent, the government is foreclosed from prevailing on this theory because it “has not raised a Rule 11 waiver objection on its own motion.” Dissenting Op. at 1122. Given the procedural history of this case, the Dissent's suggestion in this regard is surprising. Consistent with the terms of his conditional guilty plea, Games–Perez did not raise before the panel the legal issue now before the en banc court. Nevertheless, the panel concurrence reached out and raised the argument on behalf of Games–Perez. Having been given the green light to ignore the obligations set out in his plea agreement, Games–Perez raised the issue for the very first time in his petition for rehearing. But see Charley, 189 F.3d at 1264 n. 16 (“It is axiomatic that petitions for rehearing are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief.” (quotation and alterations omitted)).⁶ Now, because the government has not asserted a waiver defense in response to an issue raised for the very first time by this court in a panel concurrence, the dissent asserts the government waived the Rule 11 waiver. But see Jordan v. U.S. Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir.2011) (“We have long said that we may affirm on any basis supported in the record, even if it requires ruling on arguments not reached by the district court or even presented to us on appeal.” (emphasis added)). The Dissent's selective disregard of procedural impediments to reaching the merits of Games–Perez's late-arriving, waived, and forfeited plain-language argument, coupled with its refusal to consider alternate procedural avenues for affirming the district court's judgment, perfectly illustrate the dangers of ignoring the adversarial process that serves as the foundation of our legal system.⁷

Even setting aside the waiver flowing from his guilty plea, another significant procedural impediment precludes this court from granting Games–Perez relief on the issue belatedly raised in his petition for rehearing. Because Games–Perez never raised before the district court the validity of Capps vis-à-vis the plain language of §§ 922(g)(1) and 924(a)(2), the issue is forfeited. Fed.R.Crim.P. 52(b); Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (“If a litigant believes that an error has occurred (to his...