United States v. Perez-Perez, 19-2154

• Citation: 992 F.3d 970
• Decision Date: 29 March 2021
• Docket Number: No. 19-2154,19-2154
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Abiel PEREZ-PEREZ, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

992 F.3d 970

UNITED STATES of America, Plaintiff - Appellee,

v.Abiel PEREZ-PEREZ, Defendant - Appellant.

No. 19-2154

United States Court of Appeals, Tenth Circuit.

FILED March 29, 2021

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), Denver, Colorado, 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 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.

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.

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 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, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (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 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.

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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941) ). This requires notice of the elements of the crime charged. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th Cir. 2008).

Accordingly, the district court plainly erred by accepting...