United States v. Games-Perez

1104 195(a)(1). 195(a)(1) § der would otherwise affirm DeChristopher’s § acts. I Cf. States, judgment. v. United U.S.

Williams 3088, 73 L.Ed.2d 767 (“Absent history support legislative proposition was ‘de- application to

signed general to have checks,’

passing of we are not worthless

prepared pro- petitioner’s to hold conduct (cita- by

scribed statute.” particular omitted)). reading

tion correct subject statute is not reasonable dis- America, UNITED STATES agreement; group activity require- Plaintiff-Appellee, plain ment based on the compelled wording v. of the statute. See United States Ruiz-Gea, Miguel GAMES-PEREZ, Defendant- Cir.2003). Because the statute of convic- Appellant. activity, requires group tion and because it No. 11-1011. undisputed DeChristopher acted alone, DeChristopher was convicted based Court of Appeals, guilt. on insufficient evidence of All four Circuit. Tenth prongs plain of the test are error satisfied in this “a case because conviction Sept. absence of guilt sufficient evidence of Ryan Bergsieker, Thomas Andrew A. plainly error, clearly prejudiced Vogt, Attorney, Office of the United States defendant, always man- almost creates Denver, CO, injustice.” Goode, Plaintiff-Appellee. ifest United States (10th Cir.2007) n. Johnson, Moore, Raymond David E. P. (footnote banc). the court adopted by en Wichlens, Defender, Federal Public Jill M. history legislative Given the of FOO- Defender, Assistant Federal Public Office provision, GLRA’s enforcement there can Defender, Denver, of the Federal Public Congress be no doubt that was targeting CO, Defendant-Appellant. operations boiler-room run scheming oil gas speculators, not the actions of a BRISCOE, Before Judge, Chief solitary intermeddler an auction. If KELLY, LUCERO, MURPHY, HARTZ, 195(a)(1) Congress passed § to make ac- O’BRIEN, TYMKOVICH, GORSUCH, unlawful, DeChristopher’s tions such as “it HOLMES, MATHESON, Circuit did a peculiar language so with choice of Judges. and in an unusually backhanded manner.” Williams, S.Ct. 3088. ORDER standard, Even under the error De- This matter is before the court on Christopher’s appel- conviction for violation of Rehearing lant’s En upheld cannot Petition Banc. We be the ab- activity. proof group response appellee. sence of also have a from the The en request response banc were Ill judges circulated to all the of the court judgment regular I who are in active A poll would reverse service. called, district court regards majority conviction un- was and a of the court law, mistakes of while he is involved banc review. Conse- grant en declined n fact. asserting a mistake of denied. request petition quently, 35(a). Tymko- Judges P. R.App. See Fed. rejected panel majority Games-Per- Gorsuch, Holmes, vich, and Matheson affirmed his conviction. arguments ez’s rehearing en for petition grant would in Relying Capps, on this court’s decision banc. every noting circuit court address reached the same conclu- had

MURPHY, in Judge, concurring Circuit sion, majority reaffirmed that panel en banc. rehearing the denial is not an knowledge of felonious status 922(g)(1). § out in element of the crime set denying en banc review join I the order Games-Perez, United States “Order”). (the clarify why I it is write (10th Cir.2012); 1136, 1140-42 see also peti- deny Games-Perez’s appropriate (“[T]he only Capps, 77 F.3d knowl- en banc. for tion 922(g) §a conviction is edge required for stage in the late It is possessed knowledge that the instrument come to be that this case has proceedings omitted)). (quotation a firearm.” of two plain language whether about concurring opinion, Judge In a separate Code, 18 of the United provisions opined Capps wrongly was Gorsuch 924(a)(2) 922(g)(1) §§ U.S.C. —which Games-Perez, 1142- 667 F.3d at decided. a fire possession of prohibit respectively (Gorsuch, J., concurring). particu- In for penalty out the by a felon and set arm lar, holding “Capps’s he asserted —that require for convic that criminal conduct1— prove have to a defen- government doesn’t of his sta knowledge by a defendant tion simply can’t be dant knew he was felon— asserts the The Dissent as a felon. tus the text of the relevant stat- squared with un late-arriving question is to this answer Bell, But utes.” Id. at 1143. see Cone failure of the “yes” and the questionably 449, 482, 129 S.Ct. an up works court to take en banc (2009) (“Appellate gen- courts L.Ed.2d Dissenting Op. at 1116— injustice. obvious not erally reach out to decide issues do not however, panel, Before Games- 17.. Nevertheless, by appellant.”). raised plain-language Perez never asserted by the deci- was bound because In by the Dissent. identified Judge Gorsuch concurred Capps, sion stead, previ this court recognizing after 1142. judgment. Id. at sta knowledge of felonious ously held filed the instant thereafter of the crime set out Games-Perez tus is not an element asserting rehearing en Capps, banc § States v. 922(g)(1), Capps was Cir.1996), very first time that Games-Per lan- wrongly decided because Capps the cases Capps, and ez asserted 924(a)(2) re- unambiguously § on, guage of controlling because relied were years, or both.” lacking imprisoned not more than ten 922(g)(1), provision 1. Section Dissent, 924(a)(2). rea, According § possession Id. express criminalizes the mens prosecuted under was court Games-Perez one "convicted of a firearm " violat[ing]‘ ‘knowingly § imprisonment punishable by of[ ] crime 922(g).” Dissenting Op. at In con- § exceeding year.” 18 U.S.C. a term assertion, 924(a)(2), the indictment provision trast to the Dissent's 922(g)(1). § Section 924(a)(2). § makes no mention of in this case setting penalties for violations of out Instead, makes clear that the indictment know- 922(g)(1), provides "[w]hoever violating charged was with (g) Games-Perez ... ... of section ingly subsection violates title, 922(g)(1). provided in this fined as 922 shall be prove knowledge distinguishable his case was from quires Capps to obtain a conviction of felonious status because Capps involved mistake of law § 922(g)(1).2 under But see United States asserting and he was a mistake of fact. 1251, 1264 n. 16 Charley, affirmatively Games-Perez waived the Cir.1999) (“It that petitions is axiomatic for petition issue set out in his rehearing for parties to permitted are enable guilty when he entered his in plea district correct, notify, to errors of fact or court. The record makes clear Games- already presented; law on the issues guilty plea Perez entered into a conditional permit parties are not meant to to assert pursuant to the terms of Fed.R.Crim.P. grounds (quotation new for relief.” 11(a)(2). “Although may a defendant omitted)). majority A alterations this normally appeal plead- his conviction after deny rehearing court has now voted to en ‘[wjith guilty, ing the consent of the court response, banc. In the Dissent asserts government, and the defendant en- Capps this court’s refusal to set aside sub plea guilty ter a conditional jects or nolo both Games-Perez and criminal de contendere, generally continuing injus reserving writing fendants in right Dissenting Op. tice. at 1116-17. appellate to have an court review an ad- specified

verse determination of a pretrial ” Anderson, motion.’ United States v. (10th Cir.2004). According- addressing Before the Dissent’s asser- ly, injustice Games-Perez is entitled to raise tion of and concomitant claim that his plain-language argument plain-language argument only merits of its belated if he correct, undeniably are necessary it is to reserved that issue in his conditional guilty identify substantial procedural impedi- plea. Id. addressing ments to the issue set out in In motion his to enter a conditional above, the Dissent. As noted the crux of guilty plea, Games-Perez indicated as fol- that, the Dissent is its assertion taken lows: “Defendant this motion[ ] seeks together, §§ 922(g)(1) and plainly ‘in writing’ right reserve to have an unambiguously require govern- appellate court review this Court’s adverse prove defendant’s

ment awareness of determination September issued on his felonious status to obtain a conviction (Doc. 39)[, i.e., court’s] district violating 922(g)(1). the terms of Dis- order denying Defendant’s Motion in Li- senting atOp. recognized by 1117-19. As (Doc. 27) mine August filed on 2010.” Dissent, however, very first time Dissent, As recognized by the the issue this issue was raised in this case was in the Games-Perez now seeks bring before panel concurrence. Id. at 1117-18. To be clear, the court was not included in at no Games-Per- point filings its before the district court ez’s motion in limine. Dissenting Op. did Games-Perez ever assert Capps Instead, was wrongly (recognizing decided. that the first time the limine, his motion in argued only he issue was raised was when it was raised 2. A panel review of Games-Perez’s proposed jury briefs re- erred when denied his in- 924(a)(2), single veals not a citation to Instead, narrowly struction. Games-Perez statutory provision the Dissent relies on in arguments Capps limits his to the contention pressing Likewise, "plain language” argument. its did not control his case because he was as- panel briefing Games-Perez’s never serting Capps a mistake of fact and involved "plain language,” uses the anything term mistake of law. comparable, asserting the district court concurrence).3 terms of his conditional The district tent with the panel did not guilty plea, Games-Perez raise be memorializing the minute order court’s fore the issue now before specifically- plea the conditional terms Nevertheless, pan the en banc court. being reserved that “the issue noted reached out and raised the el concurrence motion to in defendant’s appeal is stated on behalf Games-Perez. Thus, the rec plea.” a conditional enter green light ig Having given been pre did not clear Games-Perez ord makes plea set out in his obligations nore the he seeks en upon the issue which serve raised the issue agreement, Games-Perez Furthermore, because review. banc first time in his clearly within the late-arriving argument is rehearing. Charley, But see 189 F.3d at waiver,4 product of a of the was scope that, (“It petitions n. 16 is axiomatic 1264 voluntary guilty plea, knowing permitted par are to enable justice,5 of miscarriage not result in a does correct, notify, ties to and to errors of fact en banc summary denial of Games-Perez’s already presented; or law on the issues Anderson, 374 appropriate. is permit parties are not meant 957-59, 957. F.3d at grounds (quotation assert new for relief.” Dissent, govern According omitted)).6 Now, and alterations because on this prevailing is foreclosed from ment has not asserted a waiver it not raised a Rule 11 theory because “has response defense in to an issue raised for Dis objection by on its own motion.” court in a panel waiver first time concurrence, senting Op. procedural gov at 1122. Given the the dissent asserts the case, 11 history sugges of this the Dissent’s ernment waived the Rule waiver. But Justice, Dep’t v. 668 regard surprising. in this Consis see Jordan tion of 3. Games-Perez’s ing herein!,] solutely specifically "incorporates, mine at 2010) Capps, serve charge). [district court] 09-00531, the correctness of as a defense to a (specifically recognizing validity of but clear was not 4; whether a mistake of 2010 WL see United States asserting argument and he in Matlack.” Motion in Li- motion in limine makes ab- 2682110, it did not address Capps. That motion as 922(g)(1) weapons any way challeng- reasoning if at *3 fully Matlack, fact set forth (D.Colo. could No. 6.The Dissent statutory invalid, negotiation of the waiver renders the waiver low Games-Perez to raise the he never raised argument appropriate to Charley, let alone otherwise unlawful” panel. Setting aside for the moment the ^[3] maximum, now before where the sentence exceeds the never disregard before acknowledges attempts or the en banc court when ^[4] (quotation the district court or where the waiver that rule and al- plain-language justify why omitted)). holding it 4. See United States v. 5. See reserved raised the district factor such as under argument cifically defining miscarriage sistance District Anderson, a different (10th Cir.2004) (rejecting defendant’s Court, raise his current following of counsel in connection appellate rights "that, suppression-of-the-evidence court relied on an it falls within the race, even theory 374 F.3d at 959 four situations: ^[2] Anderson, though he did below”). where ineffective as- justice because he impermissible 374 F.3d scope "[1] before (narrowly including with the where timely of his claim spe- waiver embodied in Games-Perez's condition- Riley, 522 F.3d by impediment to him serving rectness of that claim of error (same); al VanDam, Cir.2007) (same). United States v. plea, existing (10th Cir.2008) (same); United States v. Brown v. Tenth Circuit en binding n. 1 failed because banc precedent); Lowery (10th Antonio-Agusta, 672 F.3d Sirmons, preserving review nature Cir.2012) precedent, challenge 1198 n. (10th Cir.2008) Capps the issue. F.3d (conceding was bound but Cnty. was to cor- pre- Cf. no Cir.2011) (“We If serve the issue. he fails to do so in a long manner, said that we affirm on basis timely his claim for relief from record, if it requires in the even supported forfeited.”). appel- the error is To obtain by ruling arguments not reached late relief on a claim of error forfeited presented to us on district court or even court, appellant satisfy the district must added)). (emphasis The Dissent’s appeal.” 52(b) exacting dictates of Rule dem- disregard procedural impedi selective of a onstrating “plain the existence error.” reaching the merits of Games- ments Puckett, 134-35, waived, late-arriving, Perez’s and forfeited 1423. “Plain error occurs when there is plain-language argument, coupled with its (1) (2) (3) error, that is which plain, affects av procedural refusal to consider alternate rights, seriously substantial and which affirming enues for the district court’s fairness, integrity, public affects the judgment, perfectly dangers illustrate the reputation judicial proceedings.” Unit- ignoring process the adversarial Gonzalez-Huerta, ed States v. syst serves as the foundation of our (10th Cir.2005) (en banc) (quota- em.7 omitted). tion Because Games-Perez setting flowing Even aside the waiver raised this issue for the first time in his guilty from his plea, significant another petition rehearing, for he has never even procedural impediment precludes this acknowledged applicability the of plain the granting court from on Games-Perez relief doctrine, attempted error let alone to sat- belatedly the issue raised his isfy requirements. its Richison v. Ernest rehearing. for Because Games-Perez nev- Inc., 1123, Group, er raised the district court the va- before Cir.2011) (“[Appellant] hasn’t even at- lidity Capps plain language of vis-a-vis the tempted theory to show how his new legal 924(a)(2), §§ 922(g)(1) of the issue is plain satisfies the error standard. And the 52(b); forfeited. Fed.R.Crim.P. Puckett argue failure to do so—the failure to States, 134, 129, 556 U.S. 129 S.Ct. plain application appeal— error and its (2009) (“If litigant 173 L.Ed.2d 266 surely (to marks the end of the road for an believes that an error has occurred his detriment) judicial presented for reversal not first during pro- a federal court.”). ceeding, object he pre- must order to to the district proce- Given this nothing irreg- obligation 7. The Dissent there legal disputes asserts was to resolve em- powers ular about the disregard concurrence's decision this court to the terms of a raise, Games-Perez, argu- guilty plea on behalf of the conditional in order to address legal question parties ment now at bring issue before the en banc court. the did not before Dissent, all, According entirely to the "it very purpose is con- us. After of Rule 11(a)(2) generally process preserve prosecutorial sistent with our judi- adversarial is to nothing irregular give by allowing at all for a court parties cial resources plain language voice controlling “identify precisely pretrial of a what issues by Congress parties statute preserved appellate written even if the been Fed. review.” comm, 11(a)(2) Dissenting Op. fail to do so.” advisory at 1122 n. 5 R.Crim.P. sponte as a basis for conviction, an issue sua raise before her appeal Johnson’s but Bell, Circuit, court. Cone v. reversing Supreme the district Eleventh 449, 482, materiality 129 173 “held that the of a false S.Ct. Court gen- jury statement must be submitted to the (“Appellate courts L.Ed.2d 701 no doubt follows from the deference we explained the basis for the 8. This court has appel- differing appellants judgments treatment of and the owe to district courts reach, lees as follows: years they many only after times parties system endows the expensive proceedings. Our adversarial Be- involved and duty opportunity craft with the anytime involved cause of the cost and risk —to —and legal for relief in the their own theories judgment, upset we we a court’s reasoned district court. ready are to affirm whenever record significant job It but limited of our appellants must allows it. So it is by appellate system to correct errors made always heavy they shoulder a must burden — assessing legal court in theo- the district ready come both to show the district court's it, presented not to serve as sec- ries and, necessary, explain why error when secondary, back-up where ond-shot forum support grounds can affirmance of no other may be mounted for the first time. theories the district court’s decision. And this bur- Affording plenary appellate newly review to rightfully higher when the den is all the would do much to un- raised theories argument present- for reversal wasn’t even appellate dermine this adversarial and or- ed to the lower court. der. ... Inc., Group, Richison v. Ernest do-overs in This reluctance to command Cir.2011). Richison makes clear 1130 why argu- is also we treat the district court appellants carry a like Games-Perez burden affirming differ- ments for the district court by only rebutting grounds relied on reversing ently arguments it. We than ruling appellee, court in but a district any long may have said that we affirm on “heavy rebutting potential record, also a burden” by supported even if it basis actually grounds affirmance not relied on requires ruling arguments not reached on Richison, by the court. 634 F.3d at presented district by even to us the district court or appeal. preference 1130. This for affirmance on 1110 by cause it was not raised by judge.” than the trial

rather decided Gaudin, States v. response in its Id. United (citing at 1121-22. This Dissenting Op. 132 L.Ed.2d en banc. U.S. (1995)). objection has, however, though rejected Even a trial court the notion have most cer part of Johnson would appellant ignore that an can its own forfei given existing Elev tainly been overruled merits brief. McKis in an opening ture Yuen, precedent, Supreme enth Circuit Court sick v. plain- McKissick, applied Cir.2010). the Rule 52

nevertheless In at appellant specifically error standard because John tempted appeal to raise on an just objection an at lodge son failed such Id. at not raised before the district court. 465-66, Id. 1544. This trial. S.Ct. 1189. This court held her failure set similarly unwilling has been to allow court appropriate out the standard of review and appellants unambiguous to avoid the dic argue her entitlement to relief under that of Rule 52 in situations similar to the tates appeal: standard doomed her Gonzalez-Huerta, present case. F.3d develop Ms. McKissick’s failure to her Schleibaum, States v. 732; arguments adequately the district (10th Cir.1997).9 (if court either forfeited her failure was unintentional) (if The Dissent asserts this court should or waived her failure intentional) disregard forfeiture be was them in that court. Games-Perez’s suggests binding duly enacted The Dissent there exist re- statute Con- specificity objections gress, laxed standard for the and federal courts no more discre- objection disregard when an would be inconsistent with tion to Rule’s mandate than [a] binding precedent. Dissenting Op. disregard circuit statutory do to constitutional or ” ("Does party seeking 1122-23 n. 6 to distin- provisions.’ (quoting Id. Bank Nova Sco- guish precedent States, 250, 255, adverse waive or forfeit the tia v. United logically (1988)). antecedent whether S.Ct. 101 L.Ed.2d 228 erroneous?”). precedent [is] itself As set out Likewise, suggesting the Dissent errs in above, however, specifically rejected Johnson anytime appellant attempts distinguish any plain exceptions the creation of to the court, precedent preserved from this he has Johnson, 52(b). language of Rule 520 at for en banc review an attack on the correct- 466, ("Even appropriate 117 S.Ct. 1544 less precedent. Dissenting Op. of that ness expansion than an unwarranted of the Rule 1122-23 n. 6. Federal Rule of Criminal Proce- would be the creation out of whole cloth of an provides preserve a dure 51 that to claim of it, exception exception to an which we have specifically error a defendant must inform the make.”); authority no to see also v. Jimenez grounds objection. district court of the 841, (5th Cir.2011) Cnty., Wood 660 F.3d 846 51(b). precedents Fed.R.Crim.P. This court's (en banc) ("The language of Civil Rules [the objection are "clear that an must be definite 52(b) analog involving jury to Rule instruc-. enough to indicate to the district court the clearly requirements tions] sets forth the for precise ground party’s complaint.” for a preserving exception error makes no for Winder, 1129, United States v. 1136 objection situations where futile would be be- (10th Cir.2009) omitted); (quotations see also controlling precedent.”). cause of more, Further- Bass, United States v. 1303 Supreme none of the Court cases cited (10th Cir.2011); Bedford, United States v. by potential the Dissent as evidence of this (10th Cir.2008); F.3d 1153 n. relaxed standard involve Federal Rules. cf. Richison, (discussing 634 F.3d at 1129-30 Instead, court-developed those cases involve length injustice allowing appellants the un- Jimenez, appellate waiver. rules See right appeal "legal fettered assert on theo- (rejecting argument nearly F.3d at 846 n. 8 ries” different from those raised the district theory by identical to the advanced the Dis- Thus, court). sent). up the Dissent has offered no “Whereas courts are free to carve out support futility exception plain exceptions appellate for its novel to their own rules of waiver, procedure federal rules of are 'as error review. is, however, they plain we cannot tell. No how survive the error stan itWhich doubt, prefer for arguments Ms. McKissick would dard waives the in this court. feiture, appel where at least error out, A count party pick cannot on us to than waiv possible, rather late review for, argue apply a standard of re appellate may review be lost er where initiative, it view for on our own without altogether. See United States Cruz- process, the benefit of the adversarial (10th Rodriguez, 570 F.3d 1183-84 any opportunity and without for the ad Cir.2009). opening appellate But her versely party affected to be heard on the neither identifies which standard of brief question. City See Herrera v. Albu pertains argu review she thinks to her (10th querque, 589 F.3d Cir. any defense of that provides ment nor 2009); Solomon, United States v. application. despite standard’s This our Hill, Cir.2005); F.3d cf. longstanding requiring parties rules that, (noting 478 F.3d at 1251 when left identify they where in the record raised briefing parties, without from the courts they seek to correct point error improvident “run the risk of an or ill- 28.2(C)(2), 10th R. appeal, Cir. opinion, given dependence advised our of review think state what standard as an Article III court on the adversarial point of that applies to review (internal process” quotation marks omit eiTor, 28(a)(9)(B), R.App. P. and to Fed. ted)). develop argument for reversal (footnote omitted). Id. 1189-90 As was opening appellate their brief or risk hav McKissick, true Games-Perez never set waived, Kemp, Hill v. ing held see Cir.2007); petition out in his en banc F.3d 1250-51 appropriate 24 the standard of review Corp., Headrick Rockwell Int’l nor (10th Cir.1994) developed for relief under the (White, J., sitting by designation). Nor, applicable according standard.10 McKissick, doing is he excused from circumstances, so

In these even if Ms. government’s failure to raise the issue arguments McKissick’s duress were here, response in its merely forfeited before the district case, court, rehearing. being That no explain open- her failure to her matter why questionable ing appellate plain-lan- brief this is so merits his According process, any op- to the Dissent: adversarial and without portunity adversely party affected Games-Perez well be able to satis- fy plain error review if he had to. See question.”). Although be heard on the 52(b) (courts may Fed.R.Crim.P. correct regard Dissent's merits in this are assertions "plain though error ... even it was not debatable, what is not debatable is Games- all, attention”). brought to the court's After argue Perez’s utter failure to raise and argued petition he has to us in his plain entitlement to relief under the error rehearing, plain the error here is on the clear, "plain,” standard. To be the words face, statute's it affects his substantial "fairness, rights,” integrity, "substantial rights, many and it is difficult to think of public reputation judicial proceedings” of reflecting poorly errors more on our appear never in Games-Perez's system imprisoning than a man without Likewise, rehearing en banc. there is not a requiring first him to be tried under the 52(b) single cite to Rule in Games-Perez's Congress expressly prescribed. terms circumstances, petition. Under such it can- Dissenting Op. at 1122. But McKissick cf. suggesting not be that the Games- Dissent Yuen, (10th Cir.2010) late-arriving plain-language theory Perez’s out, ("A party pick cannot count on us to for, plain-error serves the additional role of a ar- argue apply review for standard of initiative, gument it on our own without the benefit of gov pre- eause our circuit’s case law allows not entitled to argument, he is guage appeal. put proving vail on them there without ernment statutorily element of specified Today crime. this court votes charged procedural the substantial setting Even side, are numer- narrowly, against revisiting there 6 to impediments to counseling additional considerations ous Dissenting Op. at 1116— state of affairs.” To case en banc. against reviewing this injus of 17. The Dissent’s tacit assertion injustice is assertion of begin, the Dissent’s convincing. The assertion of tice is not In compelling. particular, particularly not injustice depends entirely on the Dissent’s ignorance of assertion of Games-Perez’s And, as set out at view of the merits. is dubious and his felonious status below, length there is serious reason failed to demonstrate Dissent has that the stat doubt the Dissent’s assertion any here recurs with question at issue unambigu utes at issue here are Furthermore, the merits frequency. Furthermore, ous their face.11 the rec theory are far plain-language the Dissent’s ord the court in this case contains before Additionally, clear. the decision from hypothetical no mention of the Dissent’s well-entrenched, Capps long-standing, prisoners. Nor does the Dissent cite and, importantly, consistent with views involving cases from this court a credi question. circuit to address the every ignorance ble claim of of felonious status. considerations, all these this is Given fact, out and cre- appropriate case to reach In asserts in his Games-Perez split. a circuit ate briefing that this court has never before ignorance claim of factual faced credible begins by asserting in its The Dissent Appellant’s Reply “People prison sit in be of felonious status.12 first sentence: every ly injustice 11. It bears repeating that circuit court abstract assertion of universal question worthy to address this has reached the same little to this issue is does demonstrate knowledge Capps: R.App. result as this court in P. of en banc review. Fed. felonious status is not an element of a (providing en banc review is "not favored” 922(g)(1) offense. United States v. Games- granted proceed- and will not be unless "the Perez, Cir. ing exceptional impor- involves a is, tance”). That asks this court Dissent 2012). regularity individu- to assume that with some In an effort to demonstrate this case is despite prison als are a credible claim sent review, worthy of en banc the Dissent asserts ignorance contrary of felonious status. A legal question now at issue in this case assumption can is far more defensible: one Dissenting touches numerous individuals. safely felony assume an individual with a con- 1116-17, Op. at n. 4. As the Dissent always he viction will almost know is con- however, acknowledges, this assertion does felon. evidence victed Absent some credible any support not find in the record of this case contrary, highly unlikely signifi- it is or other cases from this circuit. Id. at 1121 individuals, any, cant number if are sent to ("[Ajdmittedly, n. 4 I have not tried to delve prison igno- in the face of a credible claim of identify exactly into old case files to how rance of felonious status. many were denied a other individuals triable asserting Nor is Dissent correct Congress law wrote. But defense under the "[djefendants in other cases in our several enough it’s evident Mr. Games-Perez was— unsuccessfully sought require circuit have many.”); and one such case is one too see proving government of can, well, to bear its burden (”[W]e only guess how also id. they Dissenting Op. knew were felons.” many more defendants with a triable claim assertion, support n. 4. In of this forgoing up pleading guilty ended a have Capps, winning argument Dissent cites to United States v. Rodri- potentially at trial or on (10th Cir.2003), existing precedents guez, Fed.Appx. appeal because erroneous Matlack, 09-00531, it.”). high- Capps Dissent's and United States v. No. like foreclose Games-Perez, fundamentally, felony at 4. there is a state conviction.13 Brief More 1142; reason to doubt 667 F.3d at also strong principled see id. (Gorsuch, J., ignorance of his concurring judgment) claimed Games-Perez’s majority (recognizing as a felon. The the record contained “a cer status clearly that tain quite suggesting indicates Games- amount of evidence opinion of Mr. Perez knew he would lose benefit Games-Perez was aware he had a conviction”). bargain possess felony being if he were to a All plea his case, for a deferred it is difficult to take too weapon probation seriously while (D.Colo.). Capps gument ignorance 2010 WL 2682110 As makes of the law is a defense clear, argue did possession shotgun the defendant in that case aof sawed-off instead, status. 77 holding, he was unaware his felonious requires only that "mens rea of. Instead, Capps ig- F.3d at 353. asserted his knowledge of the facts that make conduct law, ignorance norance of the rather than of ignorance illegal; of the law itself is no de- status, his felonious excused his violation of prosecution”). to criminal fense 922(g)(1). ("Capps Id. asserts that his rea- misinterpretation sonable of the effect of state aptly panel majority opin- 13. As noted in the negates an ele- law on his federal conviction ion: However, ment of the offense. we have held claims that [Games-Perez] he ... was prior a that whether conviction serves as a operating a mistaken view of the .under predicate 922(g)(1) a under facts, upon ambiguities based he was told Therefore, complaint essentially law. his attorney judge his and the at the time of ignorance thought one of of the law—T his deferred conviction in state court. We ”). Thus, applied differently law than it does.’ disagree with this view. [Games-Perez] asserting government rather than had to repeatedly, orally was informed both and in prove he was aware of his felonious status to writing, that he needed to follow all the conviction, Capps asserting a obtain was provisions probation of his if he wished to prove had to he aware it was was advantage opportunity take of the to have illegal possess weapon for him to obtain felony his conviction erased. He was told Rodriguez, opinion conviction. Id. As to repeatedly, orally writing, both and in gives absolutely no indication whether the possession of a firearm awas clear viola- ignorance claimed re- felonious status was probation. tion of his motely Finally, credible. the district court So, regardless of whatever else [Games- specifically recognizes decision in Matlack thought, pellucidly Perez] it was allowing decision a factual-innocence defense clear to him that he could not violate his practical applicability” limited "has because a firearm, probation, by possessing a legitimate claim of factual innocence will be escape consequences felony of his Matlack, exceedingly rare. United States v. expressly conviction. He was told those 09-00531, No. 2010 WL at *3 consequences affecting could include (D.Colo. case, 2010). July being That subsequent conviction. He informed the this court is left with the Dissent's ab- length court that he had talked at to his injustice. stract assertion of That abstraction matter, attorney about the and the court simply not sufficient to render this case repeatedly asked him about his under- exceptionally important. R.App. Fed. P. standing proceedings, 35(a). of the to which he understanding. assured the court of his Relying on dicta from this court's decision Thus, knew, Platte, Mr. Games-Perez as a matter in United States v. 401 F.3d fact, (10th Cir.2005), losing that he was the benefit of the Dissent asserts it matters law, bargain picked up gun his when he Capps not that involved a mistake of probation. just while on He did not because either a mistake of law or of fact can negate consequences up know the question. the mens rea the crime it— years prison. Dissenting Op. problem, ten 1121 n. 4. The federal That is sim- course, law, ply ignorance is that it is far ... from clear the dicta in which has any application disobeyance Platte has never excused facts of this law. Mains, Games-Perez, case. United States v. Cf. (10th Cir.1994) (10th Cir.2012). (rejecting 1229-30 ar- 924(a), than into the § rather denial U.S.C. that the court’s assertion Dissent’s of criminalizing posses the act provision in a clear and results review of en banc felon, a firearm a convicted sion of injustice. obvious 62 F.3d at 922(g)(1). Langley, § U.S.C. of the the resolution importantly, More appeal on was wheth (stating issue for in the presented issue in a “knowingly” the term insertion of er as the not as clear simply is gun crimes setting penalties provision asserts The Dissent suggests. Dissent as to each element scienter mandated question, on the decision that the seminal offense); (Phillips, id. at 610-11 922(g)(1) 62 F.3d 602 Langley, (concluding, J., dissenting) and concurring Cir.1995), unpersuasive is because oddity of discussing length after any for con- supplies reason court never requirement into a a mens rea inserting into a of a mens rea cluding the insertion appropriate it that was penalty provision, of the the reach renders penalty provision history “because legislative to resort Dis- ambiguous. requirement mens rea see also statutory ambiguous”);14 text is quick n. 2. A at 1119-20 & senting Op. Sherbondy, United States contrary Langley verifies Cir.1988) (“The review of amend FOPA unanimously The Fourth Circuit confusing. Normally, true. somewhat ments are am- statutory scheme was part a crime set out as concluded mens rea for offense, part not as the insertion of scien- the substantive based on biguous Thus, provision____”).15 provision, penalties a penalty into requirement ter doubt, under the lesser a reasonable but Langley "never that 14. The Dissent asserts applicable ambigui- preponderance to sen- any standard reason for the claimed supplies asserting, Op. ty." Dissenting tencing at 1119. In so he had committed factors—that unanimity ignores "knowing” the Dissent with a state of that offense that the statutes reading Circuit’s conclusion Fourth court’s mind. The district lengthy ambiguous are and plausibility, at issue here superficial statute has some why Langley dissent as to in the discussion nor- rea elements of a crime are the mens (Phil- Langley, 62 F.3d at 610-11 that is true. mally provisions that define set out in the J., concurring dissenting). lips, and The Dis- itself, sepa- offense not in the substantive very recognize that the con- also fails to sent penalty provisions. could not But this rate Langley appeal demonstrates the text of the by Congress been what was intended have ambiguity: court in that case con- the district here. "knowingly” the term the insertion of cluded J., (Phillips, Langley, F.3d at 610 concur- 924(a)(2) any bearing § did not ring dissenting). neverthe- The Dissent requirement any of- substantive mens rea Langley is irrele- less asserts this discussion fense. (1) it vant for two reasons: comes "from dissent, majority”; not the it does holding ... was based The district court’s all, ambiguity but in- address the issue 924(a) reasoning § does not that itself on its "knowingly” language stead to whether offenses, any substantive criminal define Dissenting sentencing factor. is a penalties simply provides for offenses but assertion Op. at 1120 n. 2. The Dissent's first Chapter which are defined elsewhere recognize Circuit that the Fourth fails Congress could not have intended statutory provi- unanimously concluded the "knowingly” provi- in such its insertion ambiguous. simply were Its second is sions bearing any on the mens rea sion to have wrong, passage quoted above demon- as the requirements for substantive offense. place the Instead, It is the decision to Congress strates. thought the court penalty provision provision in the "knowingly” language mens rea had intended ambiguity. pro- only specific penalties that creates the mean 924(a) imposed upon an could be vided in note, Sherbondy Langley Chapter As both of a 44 offense individual convicted statutory oddity com- beyond particular is further proved if the —not imply rights. not accurate to the Fourth FMLA simply By adopting the Tenth ignored statutory ..., text and holding Circuit Circuit’s today decision in in directly legislative history turned avoids a circuit split.”); United States v. 924(a)(2). 922(g)(1) Alexander, §§ terpreting (9th Cir. 2002) (“Absent a strong so, reason to do Nor, aptly by for those reasons stated so we will not create a direct conflict with Langley Sherbondy, the courts in can other (quotation circuits.” and alteration confidently language declare omitted)); see also The Soc’y Wilderness §§ 922(g)(1) is so in Kane Cnty., 632 F.3d imposing a requirement mens rea as to a Cir.2011) (en banc) (Lucero, J., dissenting) defendant’s status as a felon that all the (criticizing majority for creating circuit other circuits addressing question split); Workman, Wilson v. undoubtedly wrong were in turning leg- (10th Cir.2009) (en banc) (Gorsuch, J., history islative interpretation to aid (same). dissenting) in As noted the panel Further, these statutes. recognized majority opinion, every circuit court to ad panel concurring opinion, legisla- dress this issue has reached a result con history tive with ample “stocked artil- Games-Perez, sistent with Capps. Games-Perez, lery everyone.” F.3d at 1141. The avoidance of (Gorsuch, J., unneces at 1144 concurring F.3d sary splits circuit furthers the legitimacy Thus, judgment). the Dissent’s asser- judiciary and reduces friction flow tion that the resolution of the issue in ing from application of different rules this case is so clear and obvious as to be to similarly situated individuals based sole beyond simply doubt is not so. ly geographic on their location. coupled When with two additional con siderations, clarity Second, this lack of as to the recognized the rule strongly against merits counsels opinion en banc has been the law in this circuit foremost, review. First and 352-53, circuits since Capps, 77 F.3d at have historically been loath to create a universally has been accepted in the cir- See, split where none e.g., time, exists. Throne cuits for a length similar Games- Perez, berry v. Cnty. Hosp., McGehee Desha 667 F.3d at 1141. That being the Cir.2005) (“[T]he case, Tenth the distinctive strand of stare decisis Circuit’s decision ... is the applicable decision to statutory interpretation coun- from a circuit clearly addressing court against altering sels long- this court’s whether the FMLA mandates strict liabili standing construction of the relevant stat- ty any employee’s interference with an utes absent compelling circumstances. Cf. pounded by presence 924(a)(2). of 18 U.S.C. meaning § about the Dissenting 924(e), provides § penalties Op. which Supreme enhanced at 1119-20. As the Court has clear, however, types for certain of criminal recidivists: “In made “individual sections of person single case of a who togeth- violates section statute should be construed 922(g) States, previous of this title Erlenbaugh and has three er.” v. United 239, 244, felony convictions ... for violent or a seri- 34 L.Ed.2d 446 offense, both, drug (1972). person ous ... such The absence of a mens rea in the shall imprisoned statutory provision be fined under this title and setting pen- out enhanced years...." important less than fifteen It is alties for the most serious violations of 924(e), apply 924(e), §

to note that 922(g)(1), § § which will surely 18 U.S.C. creates 924(a), § some cases to the exclusion of meaning does some about the of the mens provision. requirement not contain mens rea provision setting rea in the out Dissent penalties asserts the omission of a mens rea for the more mundane violations of 924(e) requirement 924(a)(2). § nothing 922(g)(1), from tells us 18 U.S.C. case of Comm’n, strong a factual in the face of on Ry. Pub. v. S.C. Hilton Further- -status. ignorance L.Ed.2d 560 of felonious of stare decisis (“Considerations refused to more, has failed or Congress statutory of in the area here over force at issue special have amend the statutes here, in the con unlike the cir- interpretation, history during which sixteen-year interpretation, of constitutional uniformly text limited the scienter courts cuit Con implicated, and power legislative knowledge the instrument to requirement have to alter what we free remains gress Finally, Supreme a firearm. possessed is omitted)).16 (quotation done.” to cor- review is available certiorari Court interpretation statutory rect an erroneous presented Thus, banc court the en Accord- circuit courts. part of the coun- strongly factors list of lengthy with a argu- where the this is not case ingly, review. The issue en banc seling against overcome en banc review was not ments in favor of en banc court now before is, “not fa- review is trial court and there- rule that en banc raised before 35(a). fore, Having R.App. P. and waived. raised vored.” Fed. forfeited in his the first time issue for banc, has rehearing en Games-Perez GORSUCH, joined by Judge, Circuit satisfy exacting- attempted not even HOLMES, dissenting from Judge, Circuit panel of Rule 52. As requirements banc: en the denial clear, the record makes majority opinion circuit’s because our People prison sit well was aware indicates Games-Perez put law allows the case Likewise, the Dissent felonious status. his statutorily proving without them there single case from has not identified crime. charged of the specified element circuit, apparently there is no such and narrowly, to6 Today, this court votes case, pris- individual was sent to where an prove awareness of justifica- a defendant’s ernment to thinks little of these 16. The Dissent status, every to consider the circuit voting deny banc consider- felonious en tions for contrary question has reached a conclusion. Dissenting ar- Op. at 1122-25. In so ation. Furthermore, however, proper resolution of if the guing, falls back on its Dissent by posited the Dis- were as evident as case are so clear issue the merits of this insistence sent, would would think Games-Perez to take the case en banc defies that the refusal and in the district court have raised it before very purpose of en banc review. Id. Dissenting Op. at (“But appellate briefs. assuming his even some circumstance Cf. government's to of- (arguing the failure might legitimately in which we decline exists solely up on the unambiguous congres- fer based apply terms of a 924(a)(2) 922(g)(1) “says language §§ and disagreement avoid with sional statute something good, something, not at all highly proposition and doubtful other circuits—a precedent”). plausibility If about the begin surely cannot be that some- with-—it truly were clear cut as the Dissent prison just we can avoid the case go to so one must be, ap- undoubtedly be paints it to it would treating other circuits him better than those in the face of the put away.”); propriate to en banc it even incorrectly allowed to be creating split. ("[T]he pro- potential a circuit As noted point en banc id. above, however, existence, subject cess, to seri- the merits are is to reason for its debate; long- precedents are this court’s grave panel precedents when ous correct errors in entrenched; firmly the ar- standing apparent, panel prec- even if the become by raised guments at issue here were question happen to be old or involve edents in concurrence, being rather than raised statutory regulatory interpre- questions circumstances, tation.”). In these in this re- Games-Perez. The Dissent’s assertions avoid unneces- Although of the desire to gard the Dis- consideration are dubious best. stabilizing splits influence sary and the plain language of circuit is certain the sent perfectly appropriate. gov- obligates the of stare decisis 922(g)(1) §§ against revisiting this state of affairs. grammatical gravity So defies linguistic bars, Mr. will remain behind logic. Ordinarily, all, Games-Perez after when crimi- opportunity present without to a nal statute introduces the elements of a jury argument that he committed no his crime with the “knowingly,” word that crime at all under the law of the land. Of requirement mens rea applied must be “to course, rehearing only en banc is reserved subsequently all listed [substantive] questions exceptional importance. elements of the Flores-Figueroa crime.” 35.1(A). fully 10th R. And I appreci- Cir. States, 646, 650, United my ate the judgment considered col- (2009) S.Ct. 173 L.Ed.2d 853 (empha- leagues against reconsidering who vote our added). sis and alteration all, precedent: long- circuit after it is both This court’s govern- failure to hold the standing rulings and consistent with the ment to its congressionally specified bur- so, respectful- several other courts. Even I den of proof means Mr. Games-Perez ly extraordinary submit this situation war- might very well wrongfully imprisoned. be rants reconsideration. all, (if After judge state court repeatedly mistakenly) represented to him that Mr. prosecuted Games-Perez was under state court judgment deferred on which for “knowingly 18 U.S.C. vio his current conviction hinges did not con- lat[ing]” 922(g), statute that turn felony stitute a conviction. See Games- (1) (2) prohibits a convicted felon from Perez, (Gorsueh, J., 667 F.3d at 1145 con- possessing firearm interstate com curring). Given these repeated misstate- merce. But to win a conviction under itself, ments from the court Mr. Games- governing panel precedent Perez surely has a triable claim he didn’t Capps, States v. 77 F.3d 350 Cir. know his state court judgment deferred 1996), government prove only had to felony Yet, amounted to a conviction. be- that Mr. Games-Perez possessed knew he precedent cause of our in Capps, gov- firearm, not that he also knew he was a ernment never had to face a trial on this convicted felon. question; it never had to prove its case For reasons already explained I’ve and that Mr. Games-Perez knew of his felon here, won’t belabor in detail it is difficult status. It was allowed imprison instead to to see how might “knowingly someone vio him without being even § 922(g) knowing ]” without he satis late! asked. fies all the substantive elements that make can graver injustices There be fewer especially his conduct criminal — first society governed by the rule of law than substantive element Congress expressly imprisoning a man requiring without proof identified. For the reader interested in this, guilt his under more all the written laws of my concurring panel opin land. ion Yet is what Capps permits, offers it. United States v. Games- Perez, excusing government proving from Cir. 2012) (Gorsueh, J., essential element of concurring). Congress For cur the crime purposes, just recognized. rent stating Capps’s When the case holding was before the problem panel, makes the clear I was enough: by Capps its inter bound forced my pretation reading Congress’s duty precedent mens rea to countenance its — requirement injustice. Now, as leapfrogging though, over the first the case is before statutorily specified Here, element touching the en banc court. Capps does not down at the second listed my element— control require vote or the perpetua- all with this is hidden problem I wrong, and here believe of this tion expressed ones. trump intentions never be overruled. should judi may give to weight courts Whatever noteworthy at this particularly What’s predecessor statutes interpretations cial no offers stage is ambiguous, when current statute is After my pan- Capps. defense of colorable defunct interpretations those of now prior about that doubts el concurrence raised the lan carry no when weight statutes language precedent’s consistency with current is clear. statute guage of 924(a)(2), Mr. 922(g)' §§ Games- language current statute’s is When the rehearing asking petition filed a for Perez clear, Congress just be as it must enforced In court reconsider it. his en banc to the Trustee, Lamie v. wrote it. See U.S. argued that petition, Mr. Games-Perez 526, 534, 124 S.Ct. 157 L.Ed.2d U.S. statutory the inconsistent with Capps is (2004) (“The in discern starting point the proper and with language inconsistent existing the ing congressional intent is statutory the canons usual application text, statutory predecessor and the not even when confronted interpretation. Yet It is well established when statutes. this, government’s response the to all with language the plain, the statute’s sole rehearing does not even petition the the courts ... is to enforce it function of the Capps to basis attempt defend (quotation to its terms.” marks according not statutory language at issue. While the omitted)); Gateway and citations RadLAX — meaning, the this Bank, statute’s dispositive Hotel, Amalgamated LLC v. surely says something, —, glaring omission 132 S.Ct. (while the something good, pre-enactment

and not at all about L.Ed.2d 967 interpreta practice “can be relevant to the ap- and the plausibility precedent of our no ambiguous tion of an text” it has force of Mr. con- propriateness Games-Perez’s clear). when text is And whatever the the viction. legislative history may may suggest not or more, argu extra-textual What’s (put “intent” Congress’s about collective government press in re ment does trying say ting the difficulties of aside hardly sponse to the definitive about the intent of 535 anything government fills the void. The seeks executive, legislators and putting and Capps entirely on basis of defend power aside the Langley as well dissent’s history exegesis found in the legislative putative ful rejoinders Congress’s about Fourth Circuit’s divided decision United case), the intent in this law before us that Langley, Cir. gauntlet survived the bicameralism and (en banc). 1995) According govern By presentment plainer. couldn’t be their that, ment, Langley although shows terms, express §§ and do 922(g) 922(g)’s predecessor statutes did U.S.C. government imprison not authorize rea, an mens courts explicit not contain like him un people Mr. Games-Perez required govern them interpreting government can less and until the show prove ment to that the defendant knew the they of their felon status at time knew object possessed he was a firearm —but government offense. The alleged knew of not that defendant his felon much attempt prove did here. Langley, status. See 62 F.3d at 604. And all we to know. Con that is need this, surmises, government From when law different gress could have written the Congress “knowingly” did, added the word to ly always and it free to than it 924(a), adopt it must meant it But rewrite the law when wishes. it the courts to judicial gloss no more. order role of written, apply the law as it is not some 128 S.Ct. 171 L.Ed.2d 637 (2008). Yet, Congress might law have written part government different its might explains write in the future. never past disputed how a much legis lative record can longstand overcome this Besides, even if the could ing interpretive presumption.1 squeeze ambiguity manage somehow us, statutory text out of the before problem.

faces another intractable The With all the looming problems facing Supreme long recognized Capps government’s Court has and the failure to pro- “presumption” grounded it, in our vide convincing common defense of the con- today currence requirement supplement law tradition a mens rea seeks to government’s case statutory arguments attaches to “each of the with elements its arguments own. These principled that criminalize innocent are otherwise con thoughtful merit duct.” United States v. careful consider- X-Citement Vid eo, end, however, ation. In Inc., 64, 72, I respectfully submit, justifies (1994); retaining none an errone- Staples L.Ed.2d 372 see also v. precedent ous States, sustaining 600, 610-12, Mr. Games- United 511 U.S. 114 Perez’s conviction holding without (1994); gov- S.Ct. 128 L.Ed.2d608 ernment to its statutorily prescribed Co., bur- Gypsum U.S. 438 U.S. proof. den of 437-38, 98 S.Ct. 57 L.Ed.2d 854 (1978); States, Morissette v. United 342 First, the concurrence suggests that 246, 250-53, U.S. S.Ct. 96 L.Ed. Langley and United States v. Sherbondy, (1952). §§ Together 922(g) (9th Cir.1988), 865 F.2d 996 provide Capps 924(a)(2) operate posses to criminalize the government and the with their missing any gun. gun sion of kind of But posses analysis. textual Concurring See Op. at sion is often lawful and sometimes even 1113-15. And certainly it’s true that protected as a matter of constitutional Langley say seems to that the statutes at right. only statutory sepa element issue before us ambiguous, are and that (even rating innocent constitutionally pro ambiguity justifies expedition its into tected) gun possession from criminal con legislative history thicket. The diffi- 924(a) §§ duct in 922(g) prior is a is, culty Langley supplies any never rea- felony presumption conviction. So the ambiguity. son for the claimed The two government prove that the must (62 mens rea pages Langley of the concurrence cites here applies 604-05) with full force. Staples, See F.3d at simply note the defen- 613-14, 1793; S.Ct. Dis plain language argument, say dant’s “[w]e Heller, trict Columbia v. 554 U.S. disagree,” and then proceed without fur- J., 1. A recent divided era banc dissenting). majority decision from an Even for the the crit counseling against ical fact point. a mens rea re other circuit illustrates the See United quirement was the fact that Burwell, "machine (D.C.Cir. States v. 690 F.3d 500 gun” only distinguishing element was not the 2012). provision At issue there was another factor between innocent and criminal con § penalty 924 that increases the for those Instead, duct. also had to carry gun committing who machine while prove intentionally the defendant used or car statutory provision crime of violence. That ried a firearm in connection with a violent express requirement, includes no mens rea was, crime. Id. at 506-07. So it dissenting judges but even so three concluded majority, knowledge require the absence of a Staples proof demanded the defendant ensnaring ment there didn't risk otherwise weapon knew the he carried was a machine same, course, innocent individuals. The J., gun. (Rogers, Id. at dissenting); 517-20 statutory provisions cannot be said of the J., Tatel, (Kavanaugh, joined by id. at 526-31 before us. he is a study statutory history. sion statute if he doesn’t know delay to a ther felon Games-Perez, 667 Langley— possession? fact in See just implacable It’s (Gorsuch, J., concurring). gov which Capps, the foundation on out an entire ernment, points in this The concurrence and all circuit case law § ly separate provision effort 924—subsection meaningful no area rests —contains 922(g) § (e) punishes statu those who violate meaning of the to confront the — or serious prior And Sher after three violent felonies tory text at before us.2 issue offenses, explicit help drug than and does so without bondy does less that to even requirement. mens rea ly imposing case is another That about government. if But Concurring Op. the defen n. 15. problem and different —whether meaning us dant, anything of the facts this tells about the knowing addition conduct does contain a mens circumstances that made his —which criminal, contrasting language that federal rea element —the must also be aware strengthens giving the case sub being posses a felon law criminalizes (a)(2) plain meaning. at 1001-02. that score section its See Sosa sion. 865 F.2d On Alvarez-Machain, 692, 711 n. ambiguous statute be as Sher might bondy suggests. Sherbondy But nowhere L.Ed.2d (let answer) (“[Wjhen certain lan legislature address alone uses purports 924(a)(2)’s express guage part of the statute and differ question whether another, applies language rea a defen ent the court assumes requirement mens intended.”).3 In meanings dant’s felon status. different were event, any any or not mens rea whether Second, points the concurrence 924(e) §in might properly imposed be that “knowingly fact the term violates” judicial as a matter of is cases construction § in than appears rather entirely an question of course different 1. 922(g). Concurring § at 1105 n. Op. See See, day. at e.g., Staples, another how explain But concurrence does not 604-05,114 S.Ct. 1793. might it Capps. anything, this fact save If Third, that, just opposite, suggesting does the concurrence insists 924(a)(2)’s “knowingly” wholly apart statutory interpreta- § rea re- from the mens question, all the ele- is quirement inappropriate modifies substantive tion this case an § ments of and least its banc 922(g) surely at candidate for en review because all, After can a “know- “a person strong principled first. how there’s reason ingly 922(g) felon-in-posses- § violate” ignorance doubt Games-Perez’s claimed footnote, I.A) (Part question points ing 2. In a two concurrence while the discus- pages Langley says more con- from question us sion of mens rea now before “lengthy a why tain discussion” the statute (Part I.B). appears elsewhere ambiguous. Concurring Op. n. See at 1114 11) (Phil- (citing Langley, 62 F.3d at 610— footnote, 3. In a the concurrence asserts that it J., lips, concurring dissenting). But these 924(a) § questionable would be as read dissent, pages majori- come from the not containing greater requirement mens rea Thus, ty. majority why explain does not 924(e) § provision than when the car- latter ambiguous. pages statute And the Concurring Op. ries at harsher sentences. entirely address different issue— 924(e) § applies 1114-15 n. 15. But to defen- proof whether the defendant acted prior dants with three or more convictions "knowingly” is an element of a essential 924(a) applies just with while to offenders 922(g) merely sentencing offense or factor prior hardly And it unusu- conviction. only by proved preponderance that must be Indeed, harshly al the law to treat more those with they appear of the in an evidence. entirely prior multiple distinct section of dissent address- offenses. Concurring Op. edged as felon.” that Mr. Games-Perez “an ex his status has But, respectfully, province it is tremely equitable 1113. good argument.” R. jury to factual 174; resolve colorable And, Vol. I. at see also id. at 159-60. my panel And as disputes. concurrence too, the tellingly government pur does not detail, trial greater the state explains sue the harmless error con Mr. felo- judge predicate Games-Perez’s presses on currence now its behalf.4 repeatedly him his de- ny told case Fourth, the concurrence proce- raises felony convic- judgment was not a ferred that, impediments says, dural preclude Games-Perez, 1145. tion. reaching from us merits of the case. judge The state informed Mr. Games-Per- rehearing, In his no there’s accept today, hope- “if I your plea ez that dispute that Mr. Games-Perez asks clearly will leave this courtroom not fully you But, Capps. us to overrule the concur- felony.” of a after ac- convicted Id. And out, points rence Mr. Games-Perez never said, “I cepting plea, judge the state asked court to Capps the district overrule entering judgment am not of conviction part permitted challenge of his Rule 11 time, hopefully, I this never will.” Id. that, to his conviction. And the concur- facts, un- these Mr. Given Games-Perez reasons, means rence he either waived triable, doubtedly possibly has a quite issue. forfeited the winnable, case that know of he did not difficulty The first with this line of rea- Tellingly, reviewing status. his felon after soning fact the state court the able is the has the relevant materials itself judge objec- district acknowl- waiver federal this case raised or forfeiture here) Relatedly, says that I negates concurrence the mistake of law the mental required state identify "any question. from crime in See failed to [other] cases Platte, involving igno- ... a credible claim of court (10th Cir.2005). The concurrence seeks to felony Concurring Op. rance of status.” See dicta, dismiss Platte's discussion as Con- And, see admittedly, tried at 1112. I have not 12, curring Op. at 1112-13 n. no but offers identify exactly into old case files to delve rejoinder quality reasoning. See to its many other denied a how individuals were Jr., Scott, Wayne & R. LaFave Austin W. Congress defense under the law wrote. triable 1, Criminal Substantive Law 5. at 575-76 enough evident But it’s Mr. Games-Perez (1986) (pursuing reasoning the same line of as many. one such was—and case is one too See Platte). Blackstone, William 4 *358 Commentaries know, Beyond our own circuit cases we ("Better guilty persons escape that ten than too, ) (despite Capps that when a district court suffer.”). that innocent government recently required prove the the to well, enough, prob- evident It is as that knowledge of defendant’s his felon status this case has and will lem in occurred before case, yet government quickly another dis- again. recur Defendants in several other prosecution admitting missed its that "due to unsuccessfully in our cases circuit have ruling, government Court's cannot require sought government to bear its proceed prosecution its with at this time.” proving they were burden knew fel- Indictment, See Motion to Dismiss United See, 351-53; e.g., Capps, ons. 77 F.3d at Matlack, (D.Colo. No. States v. 09-00531 Rodriguez, Fed.Appx. States v. United 63 15, 2010). Sept. And we know that the issue (10th Cir.2003) (unpublished). While many has arisen times in other circuits: suggests the concurrence these were points very to these and concurrence cases "legal" igno- rather cases rance, than "factual” dispositions suggests large their and numbers explain why it does not this distinction can, well, weight add to its view. We fact, matters. In and has al- as this court guess many how more tri- defendants with a ready explained, a of law defendant’s mistake up pleading guilty able ended claim have (here, a legal mistake about the of a forgoing winning status potentially argument a at conviction) precludes prior every existing a conviction appeal trial or because erroneous (as precedents Capps much as a mistake where bit as of fact like foreclose it. 1122 (courts 52(b) to. had See Fed.R.Crim.P.

tion, does on only the concurrence though ... even “plain correct error prec And behalf. under government’s not to the court’s atten brought a it was edents, failure to raise government’s tion”). argued all, as he has After objection on its own motion Rule 11 waiver rehearing, least, in his for error objec an us argument is fatal to face, it affects plain here is on the statute’s by its omission. United forgone tion See and it is difficult to Hahn, rights, his substantial v. States banc) more Cir.2004) (en curiam); many reflecting poor think of errors (per White, imprisoning than a ly legal system on our 947 n. v. (10th Cir.2009).5 him to tried requiring man without first be expressly pres Congress under terms problematically, equally but Separately cribed.6 is the when it comes to forfeiture there if day, potential At may be end of the fact well Mr. Games-Perez argument of our own if he waiver or forfeiture satisfy plain able error review even L.Ed.2d spirited passage, the concurrence ar- In a (2008), very point, reversing gues exception precedents. to these for an makes this raising argu- contends that it should be court of a waivable appeals The concurrence government government a Rule 11 that the allowed to raise waiver ment for the my government panel concur- because Neither in did raise for itself. event voice "reached out” to concern tie why rence it clear we would want to ourselves Capps objection with the cannot be reconciled statute’s press a waivable mast terms, process "ignoring” in the doing yields so when the in- pro- posing ”danger[]” to the "adversarial day justice denying individual the that serves as the foundation of our cess promised by Congress. court to him Certain- 1108; system.” Concurring Op. at see also ly the concurrence’s citation United States (calling "irregular”). id. But it is at 10 Cir.1999), Charley, entirely generally with our adver- consistent (let to recommend alone doesn’t do much nothing irregular process and all sarial Concurring compel) Op. that course. See plain language give voice to the of a court to Charley even 1107-08. does not address Rule controlling Congress if statute written even 11, waivability, longstanding prac- its or our parties See fail to do so. United States enforcing congressional following tice of Am., Indep. Agents Ins. Nat. Bank Ore. parties even when the statutes as written 439, 448, Inc., S.Ct. don’t ask us to. (1993) (courts may ”refus[e] L.Ed.2d 402 accept stipulation [is] what in effect on a suggests Richison 6. The concurrence v. Ernest Charles, law”); question of United States v. 1123, Inc., Group, 634 F.3d 1130-31 1060, (10th Cir.2009) (the par- 576 F.3d Yuen, and McKissick v. 618 F.3d Cir.2011), positions meaning dictate ties' do "not 1177, Cir.2010), preclude us law”). only thing a The this case federal in plain recognizing even a See from error. might possibly be in tension with our 1108-09, Concurring Op. They at 1110-11. process generally adversarial the concur- appellees do not. civil cases the In those press suggestion this court a waivable rence’s appellants invoked and the didn’t forfeiture government. objection peti- After the proceed identify any plain error. to Whatever rehearing expressly court tion for asked this be, power plain error we to correct government Capps, was un- overrule explained compelled develop we weren’t equivocally on notice nature of appellants. By argument for the error Yet, argument response it faced. in its it brief contrast, criminal case the this pursue objection, did not choose to Rule 11 argument has not even raised a forfeiture (and generally process and in our adversarial us or Mr. to address. Games-Perez White) precedents Hahn we under our duty an have no to make such for it. concurrence's self-directed waiver/for- extensively arguments ques- other the concurrence cites feiture tions, raise curious The case footnote, States, party example, seeking its v. United too. For does Greenlaw taking just long the best reason for not solved enough invention is so Mr. Games- banc, it that’s the appears this case en statutorily Perez never receives his guar- view, everyone least concurrence’s day in anteed court. that, notice to avoid now on notice. On Fifth, vein, and in a different the concur by proce- seeing gummed up their cases argues rence unworthy this case is of en might defenses this court assert on dural banc might review because it result in a behalf, defense government’s wary circuit split up treating and wind similarly counsel in future cases should undertake differently situated individuals “based sole entirely gesture the —otherwise futile — ly on their geographic location.” See Con asking panels district courts and of this curring atOp. assuming 1115. But even this, All Capps. court to overrule some circumstance exists in which we course, statutory ques- ensures same might legitimately to apply decline the un way tion or later will sooner find its back ambiguous a congressional terms of stat very spot today. same it is in And ute disagreement avoid with other no district court or is au-

because highly proposition circuits —a doubtful up question thorized to take of overrul- begin with —it surely cannot be some ing Capps, question any won’t be bet- go prison just must so we can briefed, tested, avoid adversarially ter or more treating him better than those cir ready for decision than it is in other this case. incorrectly But all cuits have this will least ensure the issue is allowed to put be eventually heard if it away.7 remains unre- —even distinguish precedent really carry govern- adverse waive surmount if we wanted to logically question or forfeit the antecedent arguments ment’s waiver and forfeiture precedent whether itself erroneous? our own backs. appellate up Even if means court winds issuing precedential opinion that rests on a suggest my 7. The concurrence seems to dis See, faulty legal premise? e.g.,Kamen v. Kem- Workman, sent in Wilson v. Servs., 90, 99, per Fin. 500 U.S. 111 S.Ct. (10th Cir.2009), supports contrary its (1991) (suggesting ap- 114 L.Ed.2d 152 Concurring Op. view. Respect at 1115-16. pellate independent pow- courts ] "retainf fully, my point in Wilson was two-fold and logically question er” to decide a antecedent first, majority’s different: that the deci challenged of law on which the lower court split sion to with sister circuits was in error on FEC, rests);

judgment United v. Citizens (the Supreme the merits Court later ruled 876, 893, U.S. (2010) (same); 130 S.Ct. 175 L.Ed.2d 753 and, against position split); our court's in the Billups, United States v. second, that a decision on the issue of federal (7th Cir.2008) (same in the law could have been avoided context); criminal United States v. Guzman- expedient certifying predicate ques Padilla, (9th Cir.2009) 877 n. 1 (an tion law option of state to a state court (same). The concurrence's reliance on John- here). suggest unavailable I did not States, son v. United disregard statutory court should a clear com (1997), Concurring 137 L.Ed.2d 718 see split. mand in order to avoid a circuit Like 1109-10, Op. doesn't answer of these wise, quotes while the concurrence cases questions but invites others. Is distin- counseling against from other circuits creat guishing precedent really an adverse the same ing split strong a circuit "absent a reason to all, saying nothing as as was the case in so,” 1115, Concurring Op. inconsistency do might Johnson? Or cases like Kamen and unambiguous statutory with an direction from suggest United instead that the mech- Citizens Congress surely qualifies just as such a preserving objection anism for under See, "strong e.g., reason.” Zimmerman v. Ore. expansive Rules 51 and 52 is more than the Justice, 1169, (9th Dep’t 170 F.3d 1184 concurrence would have it? I do not claim 1999) ("Although questions, identify Cir. we answers to these but them are hesitant to create simply point many split], to [a out the difficult issues circuit ... we must follow the unam would, fairness, biguously we in expressed Congress.”). have to confront and intent of In 1124 of the statute.” Unit- comprise a violation overstating

Besides, easily risk one can Weintraub, 139, 147 in v. the case law ed States strength of the state stresses, (2d Cir.2001); v. re also United States see concurrence area. The this Cir.2000). (9th unifor weight and F.3d supposed Lynch, 233 1143 peatedly, See, e.g., then, in this area. that what say, law safe to mity of case It’s far from 1105, 1111-13, n. 1112 in this area Concurring Op. that does exist authority Circuit But while the Fourth fully 1113-15. either against Mr. Games-Perez rejected Mr. Games-Perez’s Langley in unqualified. or considered other circuits some argument and slightly different from Approaching Lang followed simply less where more or pru suggests concurrence angle, the led, paused none has address ley decisis should doctrine stare dential structural, and canonical language, plain Concurring Op. at stay hand. in presses his arguments he n. No doubt stare decisis & 16. then, that his say, rehearing. It’s hard most considerations are precedential In due. yet received their arguments have in panel As a member serious ones. has, another, as position his form or in case, concur its obliged I was lengthy well, from the won endorsement outcome was settled because our judgment joined by four Langley in en banc dissent binding panel prece by an and so earlier from at least district judges, and two surely it uncontroversial dent. But Matlack, v. No. courts, States see United pro of the en banc suggest point that the (D.Colo. 09-cr-00531, 2682110 2010 WL existence, cess, for its reason Kitsch, 1, 2010); v. No. July United States precedents in grave errors correct (E.D.Pa. 03-594-01, WL 2971548 2008 if the apparent, even when become 1, 2008), strength has been and its Aug. to be question happen panel precedents by at implicitly acknowledged explicitly statutory or questions of old or involve circuits, see United least two other See, e.g., Unit regulatory interpretation. (2d 69, 70 Cir. Reyes, Fed.Appx. 194 n. F.2d Aguon, ed States 2006) (Langley dissent “has (unpublished) (“The Cir.1988) (en banc) province force”); States v. persuasive some court is to obligation of the en banc Gardner, 700, 715, n. 2 Cir. validity challenged review the current 2007) felony is ar (“[Kjnowledge of status decisions.”), on other prior overruled many of the crime guably an element States, 504 U.S. grounds, Evans v. United species possession of felon different (1992); L.Ed.2d 57 S.Ct. cases.”) (internal omit quotation marks NRC, Project v. Energy Mass ted). too, Critical more than one Unsurprisingly, (en banc) (en (D.C.Cir.1992) language ap has taken a circuit “if, on aside precedent violates” banc set phrase “knowingly court proach to pan ... that the statutes, it decides inter reexamination appears other when holding important question on an “knowledge of el’s require preting term flawed”).8 fundamentally law was circumstances facts attendant Sturm, fact, acknowledges years: United States v. last itself few the concurrence (10th Cir.2012) (reversing interpre- at 1113. much. See F.3d 891 infra pornography statute even tation of child point plain. practice makes the 8. Our recent longer though operative); no Contrer- statute process routinely the en banc to revis- We use Holder, (10th as-Bocanegra v. 678 F.3d 811 seriously statutory regulatory flawed Cir.2012) (reversing interpretation of statuto- age interpretations, with even those some allowing deported to re- ry provision aliens them; just examples here a few from are

1125 that acknowledges reversing itself cuits our own panel prece- “[i]f concurrence truly dents, as the were as clear cut these things the case sometimes are done be, paints it to it would undoubted- Dissent because must be done. Supreme The in ly to en banc it even appropriate be not hesitated give Court has effect to of a circuit potential creating face the unambiguous meaning of a congres- at 1116 n. 16. Concurring Op. split.” even sional command when all circuits disagreement then our is on the Plainly, question have addressed the have failed merits, appropriate not on the role of stare See, express abide the statute’s terms. actually agree nothing decisis. We Lexecon, 956; 32, 523 e.g., U.S. 118 S.Ct. against doctrine teaches re- stare decisis Denver, Central Bank N.A. v. First panel precedent en banc a incon- hearing Denver, N.A., Bank Interstate 511 U.S. statutory with clear directions from sistent 164, 177, 1439, 128 119 L.Ed.2d Congress. (1994). submit, I Respectfully, is a we

case where should follow the Court’s lead, it, the law Congress enforce wrote end, I do not a moment In the grant day Mr. Games-Perez that the standard for guarantees court the law him. high argu- is a one or that the en banc might against rehearing muster ments thoughtful principled. my judg- In

are however,

ment, arguments none of these injustice

compels perpetuate us plain

disregarding terms of law wrote and

Congress denying defendants day promises court that law them. contrary, presents To the this case America, UNITED STATES surely exceptional situation where rehear- Plaintiff-Appellee, appropriate ing “give [Con- effect command, doing if gress’s] even practice.” ... longstanding

will reverse Tracy HARRIS, Defendant-Appellant. Inc. v. Milberg Lexecon Weiss Bershad No. 10-3173. Lerach, 26, 35, & 523 118 Hynes S.Ct. (1998) (internal 956, 140 L.Ed.2d 62 cita- Appeals, United States Court of omitted). Supreme Court has

tions Tenth Circuit. again “[a]ge time and is no told us Sept. inconsistency to clear a stat- antidote with Metropolitan v. Ram- ute.” Stevedore Co.

bo, 115 132 S.Ct. (1995). we

L.Ed.2d And while must always special take before

and do care disagreement with other cir-

expressing cases); Yeates, open Payne, their United States v. olina Ins. Co. v. Cas. (10th Cir.2011) (revers (10th Cir.2009) (reversing year prece 1113 n. old ing year interpretation regula .interpreting trucking old 28 U.S.C. interstate dent Mersmann, 2255); tions); Bowling, United States v. No. 08- In re 505 F.3d 1033 * Cir.2007) (overturning prior 2009 WL at *1 Cir. n. decision on 23, 2009) (reversing prece year judicata Chapter old effect of Dec. res confirmed cases); jury bankruptcy plan). Car dent on instruction fraud notes Thus, (1983). 11(a)(2) (citing United States Nat. Bank Ore. v. Inde- contemplates Rule America, Inc., pendent Agents parties bring only specified Ins. will issues to this 439, 448, court, leaving legal disputes 124 L.Ed.2d 402 unreviewed other Charles, by parties part process and United States v. F.3d settled (10th Cir.2009)). problem negotiating plea agreement. The Dissent's with the wipes away Dissent's assertion is that neither of novel view of error correction subject issue-specific these cases address an issue ato con- nature of the Rule con- And, importantly, plea, ditional waiver. empowering more ditional this court to sua single indicating sponte Dissent has not parties' cited case redraft contract. affairs, erally not reach out to decide issues not simply do this case state of dural by appellant.”). raised up to now take vehicle appropriate not an length in the Dis- issue addressed of this issue Games-Perez’s forfeiture sent. merely not excused because the district power not have the to overrule court did that we “long has said This court Supreme specifical- has Capps. The Court in the rec supported basis affirm on exceptions to ly rejected the creation of ord, arguments not requires if it even 52(b). Rule plain language See pre even district court or reached States, v. United U.S. Johnson appeal.” Jordan to us on sented 465-66, 117 S.Ct. 137 L.Ed.2d 718 Justice, 1188, 1200 Dep’t Richison, (1997); see also added).8 Cir.2011) Thus, it is (emphasis (“[T]he has cautioned us Supreme Court court to unjust nor for this neither unusual (repeatedly) against creating unwarranted to re impediment identify procedural exceptions error review judgment district court’s versing the context.”). involved a criminal Johnson case, i.e., has forfeited Games-Perez perjury. Id. at prosecution he seeks en banc upon which the issue 1544. Pursuant to then-extant Elev- S.Ct. attempted to sat and has not even review precedent, the district court enth Circuit Dis requirements. isfy plain-error jury instructed the Instead, 1121-22 & n. 5. senting Op. at materiality was one of law for the court to is for this court to highly irregular what decide. Id. at 117 S.Ct. 1544. After

Case Details

Case Name: United States v. Games-Perez

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 17, 2012

Citation: 695 F.3d 1104

Docket Number: 11-1011

Court Abbreviation: 10th Cir.