UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KORDELL PAYNE, Defendant-Appellant.
No. 19-2384
United States Court of Appeals For the Seventh Circuit
SUBMITTED JUNE 9, 2020 — DECIDED JULY 8, 2020
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2018-CR-172-PP — Pamela Pepper, Chief Judge.
Before SYKES, Chief Judge, and KANNE and BRENNAN, Circuit Judges.
I
One night in June 2018, Milwaukee police officers heard gunshots. They sped toward the sounds and saw two men crossing the street. Upon seeing the officers, one of the men, Kordell Payne, ran. The officers pursued him and saw him throw a pistol into a yard. After catching up with Payne and arresting him, the officers recovered the pistol, which was loaded.
Once in custody, Payne attempted to hide his identity; he told the officers his name was “Jeffrey Demps” and provided a false birthdate. He also said he was not a felon. After fingerprinting, the officers learned Payne had outstanding warrants for absconding from state probation and three prior felony convictions.
In 2008, when Payne was 20-years old, he was convicted of child abuse (he admitted to breaking his girlfriend’s child’s arm) and driving a stolen vehicle (he was stopped in a stolen car while on pre-trial release). See
After being charged for possessing a firearm as a felon,
Payne asked the district court to mitigate his sentence based on his low educational
Ten days after Payne was sentenced, the Supreme Court held that to be convicted of such a status offense, a defendant must have known “he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Payne argues there is a reasonable probability he would not have pleaded guilty had he known about this element, and he requests, for the first time on appeal, to withdraw his guilty plea.
II
In Rehaif the Supreme Court held that a defendant’s knowledge of the status that prevents his legal possession of a firearm is an element of a crime under
Based on this change in the law, Payne asks this court to vacate his conviction and allow him to withdraw his guilty plea. Given the timing of Rehaif, Payne never moved to withdraw his plea in the district court, so his request to do so now must be reviewed for plain error. See id. at 971 (citing
The parties agree that the failure to acknowledge the status element was a clear and obvious error, so this case turns on whether the error affected Payne’s substantial rights and the integrity of the judicial proceedings. See Henderson v. United States, 568 U.S. 266, 269 (2013) (plain error is determined based on law at time of review). Payne bears the burden of persuasion on the first question. See Williams, 946 F.3d at 973. To meet it, he “must show a reasonable probability that, but for the error, he would not have entered the plea.” Id. at 971 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). We have determined such a probability exists when a defendant would have had, post-Rehaif, a “plausible ignorance defense,” meaning a jury might believe, despite prior felony convictions, that the defendant was ignorant of his sentencing exposure. Id. at 973–74. To assess whether Payne could mount such a defense, we consider the entire record, including Payne’s criminal history, not just the transcript of the plea proceedings. See Maez, 960 F.3d at 960 (citing Dominguez Benitez, 542 U.S. at 80).
Based on the presentence investigation report—to which Payne did not object—it is highly implausible Payne was ignorant of his felon status. At the time of his arrest for firearm possession, Payne had been convicted of three felonies in state court, each of which resulted in a sentence exceeding one year. True, for the first two of those convictions, Payne’s concurrent sentences of 15 months’ imprisonment were stayed in favor of 3 years of probation. But his probation was revoked and his stayed sentence was imposed, resulting in him actually serving 13 months in confinement. And for his third felony, Payne was sentenced to a year in Wisconsin State Prison.
As the dockets in Payne’s three state court cases reveal, Payne was told he could not possess firearms as a felon during sentencing for each of his prior felony convictions. Wisconsin’s criminal law so requires:
Payne contends these state court records would not have affected his plea decision in this case because he would have objected to their admission at trial. But as we have noted, when we review alleged errors in guilty plea proceedings, the record is not circumscribed by admissibility. See id. at 960. And it is well-settled that we may judicially notice court records as evidence of prior judicial actions. Huntsberry, 956 F.3d at 285 (citing 21B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5106.4 (2d ed. 2019)); see also
Payne argues a jury may well believe he did not understand his felon status, despite what he was told during sentencing for his prior convictions, because of his low-educational attainment, early and heavy marijuana use, and childhood mental-illness diagnoses. But the limited evidence that Payne has provided is insufficient to support a jury finding that he was unable to understand the state judges’ instructions. As examples, he has not shown that he ever challenged a prior conviction on the basis of his competency, see
We can conceive of fact patterns and procedural histories on which a plausible ignorance defense on a status crime could conceivably allow for the withdrawal of a guilty plea.
See, e.g., United States v. Triggs, 2020 WL 3466909 (7th Cir. July 1, 2020). But because Payne was convicted of three felonies before he was charged, and he was present at various hearings at which Wisconsin’s statutory firearms prohibition would have been read, we conclude he has not established a plausible ignorance defense.
One final note: for the first time in his reply brief, Payne argues the error here was structural. Except in limited circumstances, arguments raised by criminal defendants for the first time in reply are waived, United States v. Desotell, 929 F.3d 821, 826 (7th Cir. 2019), and Payne does not suggest any exception applies. In any event, we recently ruled that omission of the Rehaif element is not a structural error. Maez, 960 F.3d at 957–58.
AFFIRMED