United States v. Tignor ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 1, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1158
SCOTT RAYMOND TIGNOR,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CR-00524-PAB-1)
_________________________________
Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with her on the briefs), Denver, Colorado, for the
Defendant-Appellant.
Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United
States Attorney, with him on the brief), Denver, Colorado, for the Plaintiff-
Appellee.
_________________________________
Before LUCERO, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal involves a guilty plea for possessing a firearm after a
felony conviction. 18 U.S.C. § 922(g)(1). When defendant Mr. Scott Tignor
pleaded guilty, our case law said that someone would incur guilt by
knowingly possessing a firearm after obtaining a felony conviction. United
States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). Under this case
law, defendants would remain guilty even if they hadn’t known that their
prior convictions involved felonies. United States v. Games-Perez, 667
F.3d 1136, 1140–42 (10th Cir. 2012).
But soon after Mr. Tignor pleaded guilty, the case law changed when
the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019).
There the Supreme Court held that the government needed to prove that the
defendant had known that his status prohibited possession of a firearm. 139
S. Ct. at 2200. Given the holding in Rehaif, the government needed to
prove that Mr. Tignor had known that his prior conviction was punishable
by more than a year in prison. United States v. Trujillo, 960 F.3d 1196,
1200–01 (10th Cir. 2020).
Invoking Rehaif, Mr. Tignor urges vacatur of his guilty plea because
he wasn’t told about the newly recognized element. For this issue, the
parties agree that the plain-error standard applies. Under this standard, we
consider whether Mr. Tignor showed a reasonable probability that he
would not have pleaded guilty if he’d known that the government needed to
prove knowledge of his prohibited status. Id. at 1207–08. We answer “no”
because Mr. Tignor lacked a plausible defense. We thus affirm his
conviction.
2
I. Mr. Tignor’s prior conviction was punishable by over a year in
prison.
In 2002, Mr. Tignor was convicted in Texas of aggravated assault
causing serious bodily injury. Under Texas law, aggravated assault
constituted a second-degree felony punishable by 2 to 20 years’
imprisonment. See Tex. Penal Code §§ 22.02(a)(1), (b), 12.33(a).
For the conviction on aggravated assault, Mr. Tignor was sentenced
to 10 years of shock probation. 1 But the court later revoked probation and
imposed a prison term of 7 years. Mr. Tignor served about 2 years of that
sentence and was released about 13 years ago. After obtaining release, he
moved to Colorado.
While living in Colorado, Mr. Tignor asked for someone in the
Sheriff’s Department to come to his house to investigate a theft.
Unbeknownst to Mr. Tignor, the officers had a warrant for his arrest. So
they came to his house prepared to arrest him. Unaware of the warrant, Mr.
Tignor announced that he had a firearm. The officers retrieved the firearm,
which led to a federal charge of unlawfully possessing a firearm after a
felony conviction. See 18 U.S.C. § 922(g)(1). The charge culminated in a
1
At that time, Texas used the term “shock probation” to refer to a term
of probation after the defendant had already spent time in confinement.
State v. Garza, 442 S.W.3d 585, 587–88 (Tex. App. 2014).
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guilty plea. Afterward, Mr. Tignor said that he had known about a Texas
law that he thought would allow him to possess a firearm at his home.
II. Mr. Tignor’s forfeiture of his appellate argument triggers plain-
error review.
Mr. Tignor did not raise his appellate argument in district court, so
we apply the plain-error standard. United States v. Trujillo, 960 F.3d 1196,
1201 (10th Cir. 2020). Under this standard, Mr. Tignor must show an
obvious error that affects his substantial rights and “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id.(quoting United States v. Samora, 954 F.3d 1286, 1293 (10th Cir. 2020)).
III. The district court committed an obvious error.
The government concedes the existence of an obvious error, and we
accept this concession. The Federal Rules of Criminal Procedure require
district courts to inform a defendant of the nature of the charge before
accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(G). Given this
requirement, the court must inform defendants of the elements before
accepting their guilty pleas. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th
Cir. 2008).
Despite this requirement, the district court accepted Mr. Tignor’s
guilty plea without telling him that the government needed to prove
knowledge of his prohibited status. The omission is understandable, but it
is still an obvious error under current law. See Trujillo, 960 F.3d at 1201
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(“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.”).
IV. Mr. Tignor hasn’t proven a reasonable probability that he would
have pleaded not guilty without the error.
Even though an obvious error took place, Mr. Tignor needed to show
that the error had affected his substantial rights. Id. The required showing
entails a reasonable probability that, without the error, Mr. Tignor would
have pleaded not guilty. Id. at 1208.
A. Mr. Tignor did not waive this argument.
The government argues that Mr. Tignor waived this argument by
failing to address it in his opening brief. There he argued that the district
court had committed a structural error, requiring reversal of the conviction
even if he couldn’t show a reasonable probability of a different result. At
the time, we hadn’t decided whether to characterize this error as a
structural error and a circuit split existed elsewhere. Compare United
States v. Williams, 946 F.3d 968, 972–73 (7th Cir. 2020) (concluding that
this error was not structural), with United States v. Gary, ___ F.3d ___, 2020
WL 1443528, at *4 (4th Cir. Mar. 25, 2020) (concluding that this error was
structural). Given this circuit split, the government argued that we should
join those courts declining to characterize this error as structural. After the
briefing was complete, we decided the issue, agreeing with the government
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that the error was not structural. United States v. Trujillo, 960 F.3d 1196,
1207–08 (10th Cir. 2020). But the government then argued that Mr. Tignor
had waived this argument by failing to address it in his opening brief. We
disagree.
When briefing was complete, we hadn’t yet decided whether this
error was structural. Given the circuit split, Mr. Tignor could reasonably
urge the existence of a structural error and he did. Under these
circumstances, Mr. Tignor reasonably replied to the government by arguing
that he’d satisfied the standard embraced by the government. See United
States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (allowing the
appellant to urge plain error in the reply brief after urging in the opening
brief that the error had been preserved). We thus address the argument that
Mr. Tignor newly presented in his reply brief.
B. Mr. Tignor has not shown a reasonable probability that he
would have pleaded not guilty without the error.
Mr. Tignor urges a reasonable probability that he would have pleaded
differently if he had known that the government needed to prove
knowledge of his prohibited status. According to Mr. Tignor, he would
have pleaded not guilty because he
 had not known that his Texas offense was punishable by more
than one year imprisonment and
 had believed that the government restored all of his civil rights.
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See 18 U.S.C. § 921(a)(20) (defining a “crime punishable by imprisonment
for a term exceeding one year” to exclude “[a]ny conviction . . . for which
a person . . . has had civil rights restored”).
1. A crime punishable by more than one year in prison
Mr. Tignor argues that the government couldn’t prove knowledge that
his prior offense was punishable by over a year in prison. In support, he
argues that
 he may have forgotten the details of his Texas conviction
because it had been imposed roughly sixteen years earlier and
 the original sentence entailed ten years of shock probation (not
imprisonment) and he served two years in prison only after his
probation had been revoked.
Given these facts, Mr. Tignor argues that he could have plausibly defended
on the current charge by denying knowledge that his Texas crime had
carried a potential prison sentence exceeding a year. We disagree.
Even if Mr. Tignor had forgotten some of the details, he knew that he
was a convicted felon. For example, Mr. Tignor argued at sentencing that
he thought that a Texas law allowed him to possess a firearm. But that law
applied only to convicted felons. See Tex. Penal Code § 46.04(a)(1)–(2)
(stating that individuals convicted of a felony commit a crime by
possessing a firearm outside their homes more than five years after release
from confinement).
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Of course, if the current case had gone to trial, it wouldn’t have been
enough for the government to prove knowledge of a felony conviction; the
government would also have needed to prove knowledge that the
conviction entailed “a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1). But two pieces of evidence
suggest that Mr. Tignor had known that the Texas felony was punishable
by more than a year in prison.
First, when Mr. Tignor’s probation was revoked, he was sentenced to
seven years’ imprisonment. For this sentence, he served roughly two years
in prison. Mr. Tignor presumably wouldn’t forget that he’d spent well over
a year in prison after obtaining the conviction.
Second, when Mr. Tignor pleaded guilty to aggravated assault, Texas
law required the state court to inform him of the possible sentencing range.
See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (stating that “[p]rior to
accepting a plea of guilty . . . , the court shall admonish the defendant of”
“the range of the punishment attached to the offense”). That range was 2 to
20 years’ imprisonment. See Tex. Penal Code §§ 22.02(a)(1) and (b),
12.33(a). So Mr. Tignor likely knew that aggravated assault was punishable
by more than one year in prison. See United States v. Burghardt, 939 F.3d
397, 404 (1st Cir. 2019) (noting that when a state’s law “requires a judge
to make sure that a defendant knows the maximum possible sentence when
entering a guilty plea,” it was “virtually certain” that he was so informed).
8
For both reasons, Mr. Tignor faces an “uphill battle” to show that the
error affected his substantial rights:
[A]ny § 922(g) defendant who served more than a year in prison
on a single count of conviction will face an uphill battle to show
that a Rehaif error in a guilty plea affected his substantial
rights—at least on a silent record. [The Defendant] faces an even
steeper climb because his record is not truly silent, and the little
evidence available further supports the conclusion that he would
have decided to plead guilty even if he had been informed of the
government’s burden of proof.
United States v. Williams, 946 F.3d 968, 974 (7th Cir. 2020) (citing United
States v. Vonn, 535 U.S. 55, 74 (2002)).
Mr. Tignor points out that he obtained the seven-year sentence only
after the state court revoked his probation. But Mr. Tignor didn’t just get
his probation revoked; he also spent roughly two years in prison. Because
he actually served roughly two years in prison, he knew that the prior
conviction ultimately led to a prison term of over a year. See id. at 973
(stating that a defendant who served more than a year in prison on a
conviction “cannot plausibly argue that he did not know his conviction had
a maximum punishment exceeding a year”); see also Trujillo, 960 F.3d at
1208 (concluding that the defendant could not show a reasonable
probability that, if he had been advised of the government’s need to prove
knowledge of his prohibited status, he would not have pleaded guilty
because he had “served a total of four years in prison for six felony
offenses”). We thus conclude that Mr. Tignor lacked a plausible argument
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that he hadn’t known that his prior conviction was punishable by more than
a year in prison.
2. Restoration of civil rights after a conviction
Mr. Tignor points out that defendants can possess firearms after
obtaining restoration of their civil rights. 18 U.S.C. § 921(a)(20). Relying
on this provision, Mr. Tignor argues that he could have defended based on
a belief that his civil rights had been restored. In support, Mr. Tignor cites
 the Texas law, which permits convicted felons to possess a
firearm at their own homes more than five years after release
(Tex. Penal Code § 46.04(a)(1)–(2)),
 a Texas election law, which defines a “qualified voter” to
include convicted felons who have “fully discharged” their
sentences (Tex. Elec. Code § 11.002), and
 his statement to the arresting officers that he was armed.
We have not yet decided whether the government must prove
knowledge that the defendant hadn’t obtained restoration of his civil
rights. But even if the government had this burden, Mr. Tignor’s arguments
would fail for two reasons.
First, Texas law didn’t apply. The crime was federal, and Mr. Tignor
possessed the firearm after he’d already moved from Texas to Colorado.
Second, Mr. Tignor presumably knew that some of his civil rights
had not been restored. In United States v. Flower, 29 F.3d 530 (10th Cir.
1994), we considered whether a defendant had obtained restoration of his
civil rights. The defendant had a previous Utah felony conviction, which
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prevented him from serving on a jury. Id. at 536. Because of this one
unavailable right, he hadn’t had his civil rights restored. Id. So defendants
obtain restoration of their civil rights only if they have reacquired all of
their civil rights.
Mr. Tignor couldn’t plausibly assert a belief that all of his civil
rights had been restored. Indeed, he relies on a law that prevented him
from taking the firearm anywhere outside his home. See Tex. Penal Code
§ 46.04(a)(1)–(2). So Mr. Tignor presumably knew that at least some of his
civil rights hadn’t been restored.
* * *
For these reasons, we conclude that Mr. Tignor failed to show a
reasonable probability that he would have pleaded not guilty if he’d known
of the newly recognized element. 2 Mr. Tignor thus failed to show a
reasonable probability that he would have pleaded not guilty in the absence
of the error. So we affirm his conviction.
2
The government makes three additional arguments: (1) Mr. Tignor
obtained a three-level sentence reduction for accepting responsibility when
he pleaded guilty, (2) the evidence of guilt was overwhelming, and (3) the
underlying facts of the prior conviction would have been admissible at trial
to show knowledge that the crime was punishable by more than one year.
We need not address these additional arguments.
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