United States v. Trujillo, No. 19-2057

• Decision Date: 27 May 2020
• Docket Number: No. 19-2057
• Citation: 960 F.3d 1196
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Frank TRUJILLO, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

960 F.3d 1196

UNITED STATES of America, Plaintiff - Appellee,

v.Frank TRUJILLO, Defendant - Appellant.

No. 19-2057

United States Court of Appeals, Tenth Circuit.

FILED May 27, 2020

Submitted on the briefs:^*

Virginia L. Grady, Federal Public Defender, and Kathleen Shen, Assistant Federal Public Defender, Denver Colorado, for Defendant-Appellant.

John C. Anderson, United States Attorney, and Dustin C. Segovia, Assistant United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.

BALDOCK, Circuit Judge.

On September 25, 2018, Defendant pleaded guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Thereafter, the district court sentenced him to a term of 120 months’ imprisonment followed by three years of supervised release. Now, Defendant appeals both his conviction and sentence. With respect to his conviction, Defendant argues his guilty plea is constitutionally invalid because he was not advised of the true nature of his charge. As to his sentence, Defendant argues the district court plainly erred by applying U.S.S.G. § 2K2.1(a)(1) to calculate his base offense level because he did not commit the instant offense "subsequent to" sustaining at least two felony convictions for crimes of violence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Defendant’s conviction and remand for resentencing only.

I.

We turn first to Defendant’s argument that his guilty plea is constitutionally invalid. At the time Defendant entered his plea, the law of this circuit required the Government to prove three elements to secure Defendant’s conviction under 18 U.S.C. § 922(g)(1) : (1) that Defendant had previously been convicted of a felony; (2) that Defendant thereafter knowingly possessed a firearm or ammunition; and (3) that the possession was in or affecting interstate commerce. See United States v. Silva , 889 F.3d 704, 711 (10th Cir. 2018) (citing United States v. Benford , 875 F.3d 1007, 1015 (10th Cir. 2017) ). During the pendency of this appeal, however, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Rehaif changed the established law such that, now, to secure a conviction under 18 U.S.C. § 922(g)(1), the Government must also prove that the defendant knew "he had the relevant status" as a felon when he possessed the firearm. Id. at 2194 ; see also United States v. Fisher , 796 F. App'x 504, 510 (10th Cir. 2019) (unpublished) (acknowledging Rehaif changed the established law). Given this change in the law, Defendant argues his guilty plea is constitutionally invalid because he was not advised of the true nature of his charge. That is, the district court did not inform Defendant that, if he proceeded to trial, the Government must also prove he knew he was a felon when he possessed the firearm and ammunition.

Because Defendant did not raise this issue before the district court, we review for plain error. To establish plain error, Defendant must show there is (1) an error, (2) that is plain, and (3) which affects his substantial rights. United States v. Samora , 954 F.3d 1286, 1292 (10th Cir. 2020) ; see also United States v. Oldbear , 568 F.3d 814, 820 (10th Cir. 2009) (applying plain error review to due process claims raised for the first time on appeal). If Defendant establishes these three conditions, we will correct the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Samora , 954 F.3d at 1293 (quoting Benford , 875 F.3d at 1016 ). We apply plain error "less rigidly when reviewing a potential constitutional error." Samora , 954 F.3d at 1293 (quoting United States v. James , 257 F.3d 1173, 1182 (10th Cir. 2001) ).

The Government concedes Defendant has established the first two prongs of plain error review—that is, the district court committed error that is plain. We agree. Rule 11 of the Federal Rules of Criminal Procedure requires the court to advise a defendant of "the nature of each charge to which the defendant is pleading" before accepting the defendant’s guilty plea. Fed. R. Crim. P. 11(b)(1)(G). In this case, the district court did not advise Defendant that he was required to know he was a felon to be convicted under 18 U.S.C. § 922(g)(1). At the time, such knowledge was not an element of the offense. See Silva , 889 F.3d at 711. But when the Supreme Court decided Rehaif , the settled law changed, and it became clear that a defendant must be aware of his status as a felon. Rehaif , 139 S. Ct. at 2194. While the district court correctly applied the law as it existed at the time, the court’s failure to inform Defendant of the knowledge-of-status element constitutes error that is plain on appeal. See United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (explaining an error is "plain" if it is "clear or obvious" at the time of the appeal). Accordingly, Defendant has established the first two prongs of plain error review, and we turn to whether the error affected his substantial rights.

To satisfy the third prong of plain error review, a defendant must typically show the error affected his substantial rights. Samora , 954 F.3d at 1292. In the context of a guilty plea, this means the defendant must show "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez , 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Nevertheless, "for certain structural errors undermining the fairness of a criminal proceeding as a whole" a defendant satisfies the third prong "without regard to the mistake’s effect on the proceeding."

Id. at 81, 124 S.Ct. 2333. In those cases, not even "overwhelming evidence that the defendant would have pleaded guilty regardless" can save the conviction. Id. at 84 n.10, 124 S.Ct. 2333. Defendant urges the district court’s failure to advise him of the nature of the charge constituted structural error because it rendered his plea unknowing and involuntary. To show his plea was unknowing and involuntary, Defendant relies on Henderson v. Morgan , 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and Hicks v. Franklin , 546 F.3d 1279 (10th Cir. 2008).

In Henderson , the Supreme Court held the defendant’s plea to second-degree murder was involuntary because the defendant was not advised that second-degree murder required him to have the intent to cause the death of his victim. 426 U.S. at 645, 96 S.Ct. 2253. During his plea colloquy, the defendant (a person classified as "retarded" by the state) asserted "that his plea was based on the advice of his attorneys, that he understood he was accused of killing Mrs. Francisco in Fulton County, that he was waiving his right to a jury trial, and that he would be sent to prison." Id. at 642, 96 S.Ct. 2253. But "[t]here was no discussion of the elements of the offense of second-degree murder, no indication that the nature of the offense had ever been discussed with the [defendant], and no reference of any kind to the requirement of intent to cause the death of the victim." Id. at 642–43, 96 S.Ct. 2253. In fact, there was some indication that the defendant did not intend to kill his victim, as defense counsel stated at sentencing that the defendant "meant no harm to that lady." Id. at 643, 96 S.Ct. 2253. Thereafter, the defendant filed a collateral attack on his conviction, arguing his plea was involuntary because he was not advised that intent to cause death was an element of second-degree murder. Id. at 638–39, 96 S.Ct. 2253.

Upon review, the Supreme Court held the plea was involuntary and entered without due process of law. Id. at 647, 96 S.Ct. 2253. While the Court acknowledged that a trial court may not be required to read the defendant "a ritualistic litany of the formal legal elements," it held that a reviewing court must nonetheless "examine the totality of the circumstances" and satisfy itself that "the substance of the charge, as opposed to its technical elements, was conveyed to the accused." Id. at 644, 96 S.Ct. 2253. Because the defendant was not advised of the required intent for second-degree murder, the Court held his plea was involuntary. Id. at 645, 96 S.Ct. 2253. The Court found the defendant’s low mental capacity "foreclose[d] the conclusion that the error was harmless," because it lent support to the defendant’s theory that he did not intend to kill his victim. Id. at 647, 96 S.Ct. 2253.

In Hicks , we relied on Henderson to vacate a second-degree murder conviction where the Oklahoma state court failed to advise the defendant that "a depraved mind was an element of murder in the second degree." Hicks , 546 F.3d at 1287. We explained that a defendant can show his plea was involuntary under Henderson if he: (1) establishes that the omitted element was a critical element of the crime charged; (2) overcomes the presumption that his attorney explained the element to him at some time prior to his guilty plea; and (3) shows that, prior to entering his plea, he did not receive notice of the element from any other source. Id. at 1284 (citing Allen v. Mullin , 368 F.3d 1220, 1241 (10th Cir. 2004) ). Given a context "closely analogous to Henderson ," we found the defendant in Hicks carried his burden of showing his plea was involuntary. Hicks , 546 F.3d at 1287. We nonetheless cautioned that our decision "should not be construed to invite collateral attacks" on guilty pleas because "[i]t is a rare circumstance to have a critical element of the charge completely misstated by the trial court." Id. at 1287 n.6. It just so happened this case "present[ed] that rare situation." Id.

With this precedent in mind, we turn to the facts of this case. Defendant argues the outcome of this case is squarely governed by Henderson and Hicks . Like in Henderson and Hicks , the district court failed to advise Defendant of all...