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United States v. Perez-Perez.

No. 19-2154.  D.N.M. Judge Ebel. Alien in Possession of a Firearm—Failure to Advise of all Elements—Plain Error Review—Reasonable Probability of Entering Plea in Absence of Error.

March 29, 2021

In 2009 defendant entered the United States unlawfully. He married a US citizen in 2011 but did not take immediate steps to obtain lawful residency. After removal proceedings commenced in 2016, defendant began the process of adjusting his residency status to lawful based on his marriage, but he did not complete the process.

In 2017, the Drug Enforcement Agency determined that defendant was operating a drug-trafficking organization. When agents raided his house, they found 187 grams of heroin and 15 firearms. Defendant was initially charged with distribution of at least 100 grams of heroin and conspiracy to distribute. Each charge carried a five-year mandatory minimum sentence. Defendant then entered a plea agreement under which he pleaded guilty to distributing an unspecified quantity of heroin and being an alien in possession of a firearm in violation of 18 USC § 922(g)(5). Neither of these charges carried a mandatory minimum sentence. It was undisputed that the district court failed to advise defendant of two elements of the firearms offense: (1) that the alien is illegally or unlawfully present in the United States, and (2) that the alien knows he is illegally or unlawfully present. Defendant requested a downward variance from the sentencing guidelines, but the district court sentenced him, at the low end of the guidelines range, to 78 months on each count to run concurrently.

On appeal, defendant argued that the district court erred by failing to inform him of the two § 922(g)(5) elements before accepting his guilty plea and, accordingly, the plea must be vacated. Because defendant failed to raise the issue in district court, the Tenth Circuit reviewed for plain error. The government conceded that defendant satisfied the first two plain error prongs. As to the third prong, defendant was required to show “a reasonable probability that, but for the error, he would not have entered the plea.” In the uninformed-guilty-plea context, a defendant may satisfy the third prong of plain error review by establishing a plausible defense based on an erroneously omitted element. Here, the district court plainly erred by accepting defendant’s guilty plea without advising him of two § 922(g)(5) elements. And defendant established a plausible defense to the § 922(g)(5) offense because his claim that at the time of the offense, he was not aware that he was unlawfully present in the United States is credible. However, defendant agreed to plead guilty in exchange for the dismissal of charges that carried five-year mandatory minimums in hopes that this would result in a sentence below the five-year threshold. While defendant’s strategic choice did not succeed, the error has no impact on the reason defendant took the plea deal, so he cannot show a reasonable probability that, but for the error, he would not have pleaded guilty. Therefore, defendant failed to satisfy plain error review.

The conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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