PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ABIEL PEREZ-PEREZ, 

 Defendant - Appellant. 

No. 19-2154 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:17-CR-03241-JCH-1)

_________________________________ 

Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public 

Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant. 

Tiffany Walters, Assistant United States Attorney (John C. Anderson, United States 

Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee. 

_________________________________ 

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges. 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

Defendant-Appellant Abiel Perez-Perez (referred to by the parties and here as 

Perez) pled guilty to being an alien in possession of a firearm in violation of 

18 U.S.C. § 922(g)(5). On appeal, he challenges the district court’s failure to advise 

him of two elements of that offense: (1) the alien is illegally or unlawfully present in 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 29, 2021

Christopher M. Wolpert 

Clerk of Court
2 

the United States; and (2) the alien knows that he is illegally or unlawfully present. 

Perez failed to raise this issue below and this Court thus reviews for plain error. The 

government concedes that the omission of these elements constitutes error that is now 

plain on appeal. The only dispute is whether Perez satisfied the third and fourth 

prongs of plain-error review. 

 We conclude that Perez cannot satisfy the third prong because he cannot show 

that the error affected his substantial rights. Although Perez has a credible claim 

that, at the time of the offense, he did not know he was unlawfully present in the 

United States, he has failed to show a reasonable probability that he would not have 

pled guilty but for the district court’s error. This is because the context of Perez’s 

guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences 

attached to charges the government dismissed in exchange for the guilty plea. Perez 

fails to show how the district court’s error impacted that choice, and he thus fails to 

satisfy the third plain-error prong. Exercising jurisdiction under 28 U.S.C. § 1291 

and 18 U.S.C. § 3742(a), we affirm his conviction.

I. BACKGROUND 

Perez’s Immigration Status 

Perez was born in Mexico. His family was very poor and struggled with 

homelessness. Perez has only a sixth-grade education, can barely read, and can 

barely write his own name. He does not speak English. He has worked as a painter 

and a blacksmith. In 2009, when he was thirty-three years old, Perez unlawfully 

entered the United States in the hope of obtaining better employment. 
3 

Since then, Perez has remained in the United States as an undocumented alien, 

working “under the table.” R., Vol. 3 at 74. In 2011, Perez married a U.S. citizen, 

but he did not take any immediate steps to obtain lawful residency status based on 

that marriage. In 2012, Immigration and Customs Enforcement charged Perez with 

illegal entry, but no criminal charges were filed. 

In 2016, Perez was placed in removal proceedings in immigration court. 

Perez’s wife and her family bonded him out and he then began the process of 

adjusting his residency status to lawful based on his marriage to a U.S. citizen. In 

February 2017, Perez’s bond money was returned. Perez was not removed. There is 

no evidence that Perez ever completed the process to achieve lawful status based on 

his marriage or ever obtained any lawful status. 

Drug Investigation and Arrest 

In August 2017, the Drug Enforcement Agency (DEA) began investigating 

Perez for heroin distribution. The DEA determined that Perez was operating a drugtrafficking organization, aided by two associates. The investigation culminated in 

raids on Perez’s stash house, where agents located 187 grams of heroin, and Perez’s 

residence, where agents found 15 firearms, including high-capacity firearms, and 

ammunition. 

 
4 

District Court Proceedings

A federal grand jury indicted Perez, charging him with distribution of at least 

100 grams of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(B), and with conspiracy 

to do so under 21 U.S.C. § 846. Each charge carried a five-year mandatory 

minimum. Perez was not initially charged with any firearms-related offenses. 

Eighteen months later, the parties reached a plea agreement. Perez agreed to 

plead guilty to an information charging him with (1) distributing an unspecified 

quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2; and 

(2) “being an alien, who was illegally and unlawfully in the United States,” in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(5). R., Vol. 1 at 135–37. 

Neither charge carried a mandatory minimum sentence. In exchange, the government 

agreed to dismiss the charges in the original indictment. 

Perez’s plea agreement erroneously described the elements of his firearms 

offense as (1) “the defendant knowingly possessed a firearm”; (2) “the defendant was 

an alien at the time he possessed the firearm”; and (3) the firearm moved in interstate 

commerce. Id. at 143. It did not inform Perez of the element requiring that the alien 

be “illegally or unlawfully in the United States.” See 18 U.S.C. § 922(g)(5). Perez 

acknowledged he was an alien but did not admit he was in the country unlawfully. 

He did, however, consent to removal following the completion of his sentence. 

At his plea hearing, Perez confirmed that he had read and understood the 

charges in his information and that his attorney had read him the elements of the 
5 

offenses. However, Perez was never informed that some non-citizens are allowed to 

possess firearms and that illegal or unlawful status was an element of § 922(g)(5). 

Additionally, when Perez pled guilty to that offense, the government only had 

to establish the elements of (1) status as an alien illegally or unlawfully present in the 

United States, and (2) knowing possession of a firearm that traveled in interstate 

commerce. See United States v. Games-Perez, 667 F.3d 1136, 1140 (10th Cir. 2012) 

(rejecting that a defendant must knowingly possess the prohibited status at the time 

of the offense). Thus, the government did not have to prove Perez knew his 

prohibited status. Accordingly, Perez’s guilty plea did not include any mention of 

proof of his knowledge of his prohibited status. 

After Perez pled guilty but before he was sentenced, the Supreme Court 

decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s 

knowledge of his prohibited status is a required element the government must prove 

under § 922(g). Id. at 2194. Thus, the government had to prove that Perez knew he 

was illegally or unlawfully in the United States at the time of the offense. Perez was 

never informed of this element. 

At sentencing, Perez’s offense level was based primarily on the drug charge, 

but an additional offense level was added because of the firearms offense under the 

guidelines rules regarding grouping and multiple count adjustments. This resulted in 

an advisory guidelines range of 78 to 97 months in prison. Perez argued for a 

downward variance and a below-guidelines sentence of 37 months, but the district 

court sentenced him to 78 months on each count to run concurrently. This appeal 
6 

followed. On appeal, Perez argues that the district court erred by failing to inform 

him of two elements of the § 922(g)(5) offense before accepting his guilty plea. 

Accordingly, he asks this Court to vacate his guilty plea to that offense.1

 

II. STANDARD OF REVIEW 

Because Perez did not raise this argument below, we review for plain error. 

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc). 

Under plain-error review, “the defendant must establish that (1) the district court 

committed error; (2) the error was plain—that is, it was obvious under current 

well-settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the 

error seriously affected the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Dalton, 918 F.3d 1117, 1129–30 (10th Cir. 2019) 

(quoting United States v. Chavez-Morales, 894 F.3d 1206, 1214 (10th Cir. 2018)). 

This Court applies plain-error review “less rigidly” when reviewing a potential 

constitutional error. Id. at 1130 (quoting United States v. Weeks, 653 F.3d 1188, 

1198 (10th Cir. 2011)). 

Here, the government concedes that Perez has satisfied the first two plain-error 

prongs by establishing that the district court committed an error that became “clear or 

obvious at the time of the appeal.” Gonzalez-Huerta, 403 F.3d at 732. Thus, the 

issue is whether Perez has met the third and fourth plain-error prongs. 

1

 Perez does not challenge the validity of his drug-distribution conviction. 
7 

To satisfy the third prong, Perez “must show a reasonable probability that, but 

for the error, he would not have entered the plea.” United States v. Trujillo, 960 F.3d 

1196, 1208 (10th Cir. 2020).2 This is a lesser standard than proof by a preponderance 

of the evidence, and it is satisfied by “a probability sufficient to undermine 

confidence in the outcome.” United States v. Bustamante-Conchas, 850 F.3d 1130, 

1138 (10th Cir. 2017) (en banc) (quoting United States v. Hasan, 526 F.3d 653, 665 

(10th Cir. 2008)). If Perez fails to satisfy the third plain-error prong, the Court need 

not reach the fourth prong. Trujillo, 960 F.3d at 1208. 

III. DISCUSSION 

Perez asserts that his guilty plea is constitutionally invalid because he was not 

informed of two elements of the firearms offense: (1) that the defendant alien is 

illegally or unlawfully present in the United States; and (2) that the defendant knew 

of his unlawful status. A guilty plea must be voluntary and intelligent, which 

requires that the defendant receive “real notice of the true nature of the charge 

against him.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v. 

O’Grady, 312 U.S. 329, 334 (1941)). This requires notice of the elements of the 

crime charged. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th Cir. 2008). 

2

 Perez filed his opening brief the day before this Court issued Trujillo. In his 

brief, he argued for a different standard, under which the third prong is satisfied by a 

Rehaif error unless “the defendant was made aware of the missing elements through 

other means, or if the record contains an admission that would satisfy the elements.” 

Aplt. Br. 12. In his reply brief, Perez conceded that this argument is foreclosed by 

Trujillo. 
8 

Accordingly, the district court plainly erred by accepting Perez’s guilty plea 

despite Perez not being informed of two elements of § 922(g)(5). Yet Perez agreed 

to plead guilty to that charge (and the unspecified-quantity heroin-distribution 

charge) in exchange for the dismissal of charges that carried five-year mandatory 

minimums. Perez hoped that his plea to the substitute charges would result in a 

sentence below that five-year threshold. It did not. So Perez now tries to get out 

from his plea agreement by arguing Rehaif error. But the Rehaif error has no impact 

on the reason Perez took the plea deal, so he cannot show a reasonable probability 

that, but for the error, he would not have pleaded guilty. For that reason, as 

explained in more detail below, the Court concludes that Perez fails to satisfy 

plain-error review. 

In reaching that conclusion, we first consider Perez’s argument that he has a 

credible claim that he was not aware, at the time of his offense, that he was 

unlawfully present in the United States or that he could not lawfully possess a 

firearm. Accepting that argument, we then turn to whether it establishes a reasonable 

probability that, but for the district court’s error, Perez would not have pled guilty. 

And that is where Perez’s argument fails. 

A. Perez has a credible claim that, at the time of his offense, he was not 

aware that he was unlawfully present in the United States. 

In the uninformed-guilty-plea context, a defendant might be able to satisfy the 

third prong of plain-error review by establishing a plausible defense based on an 

erroneously omitted element. See United States v. Dominguez Benitez, 542 U.S. 74, 
9 

85 (2004); Trujillo, 960 F.3d at 1208. For a defendant claiming a Rehaif error, such 

a plausible defense may be based on a claim of ignorance of the prohibited status. 

See United States v. Fisher, 796 F. App’x 504, 510 (10th Cir. 2019) (unpublished). 

Here, we believe that Perez has a colorable argument that, at the time of the 

offense, he was not aware that he was unlawfully present in the United States. The 

record provides ample support for this potential defense: (1) Perez had been in the 

United States for at least seven years at the time of his offense; (2) Perez was married 

to a U.S. citizen; (3) Perez’s U.S. citizen wife had initiated the process for him to 

adjust his residency status to lawful based on their marriage; (4) Perez’s 2017 bond 

money was returned to him and the removal proceedings concluded, apparently, 

without him being removed;3

 and (5) Perez was illiterate, unsophisticated, and 

unfamiliar with the complexities of immigration law. 

In light of these facts, Perez may well not have known at the time of the 

offense that he was unlawfully present in the United States. Although it is 

undisputed that Perez never had lawful status, he could have believed that he had 

some sort of lawful status in 2017 based on the above facts—or at least he could have 

credibly argued to a jury that he so believed. 

These circumstances are sufficient to support a plausible defense, and Perez 

need not assert now on appeal that at the time of the offense he actually believed he 

had lawful status. Our determination is not based on “post hoc assertions from a 

3

 The record does not explain why the bail money was returned or how the 

removal proceedings concluded. 
10 

defendant about how he would have pleaded,” but on “contemporaneous evidence to 

substantiate a defendant’s expressed preferences.” Lee v. United States, 137 S. Ct. 

1958, 1967 (2017); see also United States v. Kennedy, 225 F.3d 1187, 1191 (10th 

Cir. 2000) (“This court will not consider material outside the record before the 

district court.”). Moreover, Perez does not need to assert or prove his actual 

innocence. Trujillo, 960 F.3d at 1201. Even if Perez was actually guilty of the 

omitted elements, he could still potentially satisfy the third plain-error prong by 

showing that the government would have had a difficult time proving his guilt. 

See id. at 1207–08. 

Perez has made that showing, and the government’s arguments fail to establish 

otherwise. The government merely reiterates that whatever Perez’s efforts to adjust 

his status to lawful, there is no evidence that he completed the process and he never 

obtained a green card or other documentation of lawful status. This is true, but it 

only proves that Perez never had lawful status, not that he never thought he had 

lawful status. The government does not have any direct evidence to contradict 

Perez’s claims, and it could not force him to testify. There is simply no evidence that 

Perez knew the government could prove its case against him absent his cooperation 

and an admission that he knew, at the time of the offense, of his prohibited status. 

Under similar circumstances, our sister circuits have found the third 

plain-error prong satisfied. See United States v. Jawher, 950 F.3d 576, 580–81 (8th 

Cir. 2020); United States v. Russell, 957 F.3d 1249, 1253–54 (11th Cir. 2020); 

United States v. Balde, 943 F.3d 73, 97–98 (2d Cir. 2019). In each case, the court 
11 

found the third plain-error prong satisfied where the defendant had a credible claim 

that he thought he had lawful status, or, “[a]t the very least, . . . reasonable grounds 

on which to contest his knowledge of his prohibited status to a jury.” Jawher, 

950 F.3d at 580. Here too, Perez at least has reasonable grounds to contest this 

element to a jury. 

The government fails to distinguish those cases. It attempts to do so by 

pointing out that each defendant had argued below that he had legal status, whereas 

Perez did not. But here, unlike those cases, Perez was told that he was guilty merely 

for being an alien in possession of a firearm, regardless of whether he was in the 

United States lawfully or unlawfully. Thus, Perez had no reason to argue about his 

status, because he could not dispute that he was an alien. 

That Perez has a colorable argument to satisfy the third prong is further 

supported by comparison to the Rehaif-fix cases the government cites in which courts 

found this prong not satisfied. Those courts relied on overwhelming evidence of 

guilt for the omitted element. For example, in Trujillo, a felon-in-possession case, 

this Court found that the defendant could not “credibly claim he was unaware that he 

was a felon” where he had been previously convicted of six felonies and sentenced to 

twenty-four years in prison. 960 F.3d at 1208. Similarly, in United States v. Puri, 

797 F. App’x 859 (5th Cir. 2020) (unpublished), an alien-in-possession case, the 

defendant admitted that at the time of the offense he believed that he was unlawfully 

present. Id. at 864. 
12 

Perez has admitted no such knowledge at the time of the offense and he has a 

credible claim that he lacked that knowledge. The government could gather further 

evidence and argue against Perez’s claim at trial, and a jury might well reject it, but 

“we cannot conclude on the present record that the government’s arguments are so 

strong that [Perez] would have had no plausible defense at trial and no choice but to 

plead guilty.” Balde, 943 F.3d at 97. 

We reject each of the government’s arguments to the contrary, but we consider 

two of note.4

 The first addresses the district court’s failure to inform Perez that only 

unlawfully present aliens, not all aliens, are prohibited from possessing firearms. 

The government argues that this error was non-prejudicial because Perez received 

actual notice of that element from the information, which included the factual 

allegation that Perez was “an alien, who was illegally and unlawfully in the United 

States.” R., Vol. 1 at 135. That allegation was the only mention of that element in 

the record. 

The government cites United States v. Ferrel, 603 F.3d 758 (10th Cir. 2010), 

as support for its notice theory. But in Ferrel, this Court found no effect on 

substantial rights where an omitted element was (1) alleged in the indictment, 

(2) repeated in the plea agreement, (3) repeated in the defendant’s plea statement, and 

(4) discussed by the defendant with his attorney. Id. at 763–64. All that is 

4

 In addition to these two arguments, which were raised in the government’s 

brief, at oral argument the government alluded to other offenses with which it could 

have charged Perez. Those hypothetical charges are not supported by the record and 

we do not consider them. 
13 

significantly more substantial evidence of actual notice than exists here, where 

claimed notice is based solely on a factual allegation in the information. 

In further contrast with Ferrel, the pertinent element here was not just omitted, 

it was affirmatively misrepresented. Perez’s plea agreement described the element as 

“the defendant was an alien at the time he possessed the firearm.” R., Vol. 1 at 143. 

This inaccurate description of the element nullifies any notice provided by the factual 

allegation in the information. For these reasons, we reject the government’s 

argument that Perez cannot satisfy the third prong because the information gave him 

actual notice of this element.5

The government’s second argument is based on its assertion that Perez 

admitted below to being an unlawfully present alien. The government sees that 

“admission” in (1) Perez’s failure to object to the PSR’s listing of his immigration 

status as “illegal alien” and (2) various statements by Perez acknowledging that he is 

undocumented and worked “under the table.” Aple. Br. 7, 12. The government 

argues that this admission and Perez’s failure to raise any claim as to his lawful 

status indicates that he knew all along he was illegal. But as mentioned above, 

because Perez was told that the offense applied to all aliens, he never had reason to 

argue that he had lawful status or that he thought he did. 

5

 Even if the factual allegation in the information had provided actual notice, 

that would only apply to the error for the omitted element “an alien unlawfully or 

illegally present in the United States,” not the omitted knowledge-of-status element. 

Thus, this argument would not be fatal to Perez’s claim in any event. 
14 

In addition, Perez’s “admissions” at the time of sentencing in 2019 are of 

questionable significance as to his knowledge of his status at the time of the offense 

in 2017. Perez admits that he now knows that he is unlawfully present and even 

concedes that it is “very likely” he was unlawfully present at the time of the offense. 

Aplt. Reply Br. 5–6. But that does not mean that at the time of the offense he knew 

he was unlawfully present, and that is what the government would have had to prove. 

In summary, we conclude that Perez has established a plausible defense to the 

§ 922(g)(5) offense, because he has a credible claim that, at the time of the offense, 

he was not aware that he was unlawfully present in the United States. We next 

consider whether that plausible defense is sufficient to establish a reasonable 

probability that, but for the district court’s error, he would not have pled guilty.

B. Despite his plausible defense, Perez has not established a reasonable 

probability that, but for the district court’s error, he would not have pled 

guilty. 

In some Rehaif-fix cases, establishing a plausible defense based on the omitted 

element might be sufficient to show that the error affected the defendant’s substantial 

rights. But in light of the particular circumstances of Perez’s plea agreement, his 

plausible-defense argument is not sufficient to make such a showing here. 

We first consider the context of Perez’s plea agreement. In one sort of 

plea-deal case, a defendant is charged with a particular offense and accepts a plea 

deal because he thinks he has no defense to that charge and he hopes to receive some 

sort of consideration for his plea, such as a reduced sentence. See, e.g., United States 

v. Sanchez, 983 F.3d 1151, 1157 (10th Cir. 2020) (describing a defendant claiming 
15 

Rehaif error after pleading guilty to being a felon in possession of a firearm after his 

motion to suppress evidence was denied); see also U.S.S.G. § 3E1.1(a) (decreasing 

the offense level for a defendant who “clearly demonstrates acceptance of 

responsibility for his offense”). In such a case, we may presume that a plausible 

defense based on an erroneously omitted element is enough to satisfy the third 

plain-error prong. See Trujillo, 960 F.3d at 1207. But this is not that sort of case. 

Here, Perez was not initially indicted for the firearms offense, he was indicted 

for (1) distribution of at least 100 grams of heroin under 21 U.S.C. § 841(a)(1) and 

(b)(1)(B); and (2) conspiracy to distribute at least 100 grams of heroin under 

21 U.S.C. § 846. Those charges each carry a five-year mandatory minimum. In 

exchange for the dismissal of those charges, Perez agreed to plead to an information 

charging him with (1) the § 922(g)(5) firearms offense; and (2) distributing an 

unspecified quantity of heroin under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Both of 

those charges lacked mandatory minimum sentences. 

In light of those facts, we review what the plea agreement did for Perez and 

what it did not do, and how those considerations speak to Perez’s motivations for 

accepting the agreement. To start, the plea deal replaced the quantity-specific 

distribution and conspiracy drug charges with an unspecified-quantity distribution 

charge. This reveals two things: First, that Perez’s motivation could not have been 

avoiding a drug charge, because the plea deal retained such a charge. Second, that 

the new drug charge was uniquely tailored to Perez’s needs in that it omitted a 

specific quantity of drugs. Although an unspecified-quantity charge is not unheard 
16 

of, we think it uncommon. Such a charge does not implicate mandatory minimum 

sentences. The unusualness of not having a specified quantity suggests that the new 

charge was tailored to Perez’s desire to avoid mandatory minimums. 

In addition to modifying the drug charges, the plea agreement added a new 

charge: the firearms offense under § 922(g)(5). Under the Sentencing Guidelines, 

that offense did not group with the unspecified-quantity drug charge, resulting in a 

multiple count adjustment increasing Perez’s base offense level by one level. In 

contrast, the original drug charges in the indictment would have grouped, resulting in 

no adjustment for multiple counts. See U.S.S.G. § 3D1.2. The additional offense 

level resulting from the non-grouping charges translated to an increase in the overall 

advisory guidelines range, from 70 to 87 months to 78 to 97 months. Thus, accepting 

the plea agreement resulted in a higher guidelines range than would have pleading to 

the original charges. 

In sum, the plea agreement (1) did not allow Perez to avoid a drug charge, 

(2) added the new charge under § 922(g)(5), and (3) increased Perez’s guidelines 

range by 8 to 10 months. It did, however, confer one significant benefit upon Perez 

by allowing him to avoid any mandatory minimum sentence. Because the charges 

implicating mandatory minimums were dismissed, Perez was able to argue for a 

below-guideline sentence of 37 months, well below both the 78-to-97-month advisory 

range he faced on the plea agreement charges and the five-year minimum he faced on 

the original charges. Absent the plea agreement, Perez could not have argued for that 

sentence. These circumstances make clear that Perez’s motivation for accepting the 
17 

plea agreement was to avoid the mandatory minimums in the hope of obtaining a 

downward variance and reducing his incarceration period. We can confidently 

conclude this was Perez’s motivation because it was the only advantage offered to 

Perez under the new plea offer that he accepted. 

In essence, Perez gambled in accepting an 8-to-10-month increase in his 

advisory range (from 70 to 87 months to 78 to 97 months) in exchange for avoiding 

the 60-month mandatory minimums. Although Perez’s counsel suggested during oral 

argument that the increased advisory range shows that the plea deal was not such a 

great deal for Perez, that increase actually cuts against Perez’s case. By accepting a 

higher advisory range in his plea agreement, Perez made clear that his motivation in 

accepting the agreement was to avoid mandatory minimums so that he could argue 

for a below-guidelines sentence. 

Perez lost his gamble, as the district court rejected his downward-variance 

argument and sentenced him to 78 months, at the bottom of the advisory range but 

above the mandatory minimum he would have faced under the original charge. 

Because Perez’s strategic choice did not pay off, he now wants to back out of his plea 

deal. But even had Perez known of the omitted elements, there is no reason to 

believe that would have impacted his decision to plead, because it would not have 

impacted his motivation. Perez made a calculated decision to accept this plea 

agreement in order to avoid the mandatory minimums. That calculus does not change 

depending on whether or not Perez had a chance to beat the firearms offense, when 

he was not charged with that offense in the first instance. 
18 

Indeed, what really mattered was the government’s ability to prove the initial 

drug charges, not its ability to prove the substitute firearms offense. Critically, 

however, Perez never argues that the government would have had any difficulty in 

proving those initial charges. Perez simply overlooks this point, arguing only that 

because he has now established a plausible defense to the new gun charge, he 

satisfies the third plain-error prong.6

 This fails to satisfy his obligation under that 

prong. 

We read the dissent as disagreeing with us on two main points. First, the 

dissent deems Perez’s plausible-defense argument to the gun charge sufficient to 

satisfy the third plain-error prong. We think this fails to appreciate the circumstances 

under which Perez accepted the plea agreement, which was to avoid the mandatoryminimum requirements of the initial drug charges. (See Aplt. Br. 2 (“[Perez] pled 

guilty to both charges in the information in exchange for dismissal of the two 

indicted counts.”).) 

Second, in response to our reasoning, the dissent undertakes its own analysis 

of the government’s ability to prove the initial drug charges, concluding that the 

government would have had “extraordinary difficulty” in proving those charges. 

(Dissent 8.) Accordingly, the dissent finds “a reasonable probability that absent the 

6

 The government additionally points out that Rehaif came out before Perez 

was sentenced, such that Perez could have tried to withdraw his guilty plea on that 

basis, but instead chose to stand by it in the hope of reduced sentencing. We reject 

this argument because it would only have weight if Perez had actual knowledge of 

Rehaif, and there is no such evidence. 
19 

error, [Perez] wouldn’t have pleaded guilty because of (1) the weakness of the 

government’s evidence showing knowledge of his unlawful status and (2) the 

government’s inability to prove [Perez’s] constructive possession of at least 

100 grams of heroin.” (Id. at 15–16.) 

We cannot agree. To be sure, the dissent makes a credible argument that the 

government might have had difficulty proving the initial drug charges. But because 

Perez did not make that argument, this approach would require us to reverse under 

plain-error review based on a ground not argued by the defendant. We decline to do 

so. Instead, we affirm because it is Perez’s burden to establish that his substantial 

rights were affected, and, by not arguing that the government would have had 

difficulty in proving the initial drugs charges, he has not met his burden of proving 

plain error. 

In light of Perez’s motivation for taking the plea deal—a motivation that is 

unchanged by Rehaif—he has not established a reasonable probability that, but for 

the omitted elements, he would not have pleaded guilty. Thus, Perez fails to satisfy 

the third prong of plain-error review. Because Perez does not satisfy that prong, we 

need not consider the fourth prong. See Trujillo, 960 F.3d at 1208. 

* * * 

We conclude that the district court did not commit reversible plain error by 

accepting Perez’s uninformed guilty plea because Perez fails to establish a reasonable 
20 

probability that, but for the error, he would not have pleaded guilty. Accordingly, we 

affirm his guilty plea and conviction.7

IV. CONCLUSION 

For the reasons provided above, we AFFIRM the district court on all issues 

presented on appeal. 

7

 Perez had additionally argued that the district court’s error regarding the 

firearms offense also required vacating the sentence for the unspecified-quantity drug 

offense along with the sentence for the firearms offense. However, because we 

affirm Perez’s firearms conviction, we also affirm the unspecified-quantity drug 

sentence. 
United States v. Abiel Perez-Perez, No. 19-2154 

BACHARACH, J., dissenting. 

 The defendant, Mr. Abiel Perez-Perez, pleaded guilty to being a 

prohibited person in possession of a firearm and ammunition. 18 U.S.C. 

§ 922(g)(5)(A). But the prohibition applies only when defendants know 

that they fall within a category of persons barred from possessing a 

firearm. United States v. Benton, No. 20–6023, slip op. at 2, 23 (10th Cir. 

Feb. 23, 2021) (to be published). Mr. Perez-Perez’s plea agreement didn’t 

mention the need for the government to prove the knowledge required for a 

conviction. 

I agree with the majority that the omission in this plea agreement 

constitutes an obvious error. But the majority concludes that the error did 

not affect Mr. Perez-Perez’s substantial rights. I respectfully disagree. If 

Mr. Perez-Perez had known of the knowledge element, there is a 

reasonable probability that he would not have pleaded guilty. I thus 

respectfully dissent. 

I. Mr. Perez-Perez pleads guilty based on an incorrect recitation of 

the elements. 

The government initially charged Mr. Perez-Perez with two drugtrafficking offenses: 

1. Possession of at least 100 grams of heroin with intent to 

distribute (21 U.S.C. § 841(a)(1), (b)(1)(B)(i)) 

2. Conspiracy to possess at least 100 grams of heroin with intent 

to distribute (21 U.S.C. § 846) 
2 

Upon conviction, the mandatory minimum sentence would be five years’ 

imprisonment. 21 U.S.C. § 841(b)(1)(B)(i). 

 Instead of pursuing these charges, the government entered into a plea 

agreement with Mr. Perez-Perez. This agreement required the government 

to dismiss the initial charges and Mr. Perez-Perez to plead guilty on two 

new charges: 

1. Distributing an unspecified quantity of heroin (21 U.S.C. 

§ 841(a)(1), (b)(1)(C)) and aiding and abetting the distribution 

(18 U.S.C. § 2) 

2. Possessing a firearm and ammunition despite a status that 

prohibits possession (18 U.S.C. § 922(g)(5)) 

The new charges carried no mandatory minimum sentence. 

 For the second charge, Mr. Perez-Perez’s plea agreement included an 

element that “the defendant was an alien at the time he possessed the 

firearm or ammunition.” R. vol. 1, at 143. But the plea agreement didn’t 

mention the elements of 

 unlawful presence in the United States and 

 knowledge of his unlawful status. 

Nor were these elements mentioned in the written factual basis for Mr. 

Perez-Perez’s guilty plea. Instead, the factual basis reflected only Mr. 

Perez-Perez’s admission that he “was not a citizen or national of the 

United States.” Id. at 145. 
3 

 Because he pleaded guilty to the additional firearm charge along with 

the drug offense, Mr. Perez-Perez’s guideline range increased for the 

multiple counts. With the firearm charge, the guideline range was 78–97 

months. Without the firearm charge, the guideline range would have been 

only 70–87 months. But if convicted on the initial drug charge, Mr. PerezPerez would have faced a mandatory minimum of five years’ imprisonment. 

II. We review for plain error. 

After Mr. Perez-Perez pleaded guilty, the Supreme Court held in 

Rehaif v. United States that conviction of the firearm offense (violation of 

18 U.S.C. § 922(g)) requires proof of the defendants’ knowledge of their 

unlawful status. 139 S. Ct. 2191, 2200 (2019). Because the Supreme Court 

decided Rehaif after Mr. Perez-Perez had pleaded guilty, he hadn’t raised 

the issue in district court. So we review for plain error. United States v. 

Trujillo, 960 F.3d 1196, 1201 (10th Cir. 2020).

For plain-error review, the defendant must show that (1) an error 

took place, (2) the error was plain, (3) the error affected the defendant’s 

“substantial rights,” and (4) the error “seriously affect[ed] the fairness, 

integrity, or public reputation of judicial proceedings.” E.g., United States 

v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (citation 

omitted). 

The government concedes that Mr. Perez-Perez satisfied the first two 

requirements. I agree with this concession, for the district court committed 
4 

an obvious error1

 by failing to inform Mr. Perez-Perez that the government 

needed to prove not only his unlawful presence in the United States but 

also his knowledge at the time of this unlawful status. 

III. The error affected Mr. Perez-Perez’s substantial rights. 

The defendant must show that but for the obvious error, a reasonable 

probability existed that he would not have pleaded guilty to unlawful 

possession of a firearm. Trujillo, 960 F.3d at 1201. Under this test, he 

needed only to show “a probability sufficient to undermine confidence in 

the outcome.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 

(10th Cir. 2017) (en banc) (quoting United States v. Hasan, 526 F.3d 653, 

665 (10th Cir. 2008)). In my view, Mr. Perez-Perez satisfied this burden. 

A. The government had only weak evidence of Mr. PerezPerez’s knowledge of his unlawful status. 

The government contends that Mr. Perez-Perez knew of his unlawful 

status, so informing him of the element wouldn’t have affected his decision 

to plead guilty. But Mr. Perez-Perez argues that the government would 

have had difficulty proving knowledge of his unlawful status when he 

possessed the firearm. 

I agree with Mr. Perez-Perez. In light of his background and the 

complex procedural steps in his removal proceedings, the government 

1

 The error is obvious only in retrospect because the district court 

understandably relied on our precedents existing at that time. The district 

court lacked the benefit of Rehaif. 
5 

would have had a difficult time proving knowledge of his unlawful status. 

Given that difficulty, there is a reasonable probability that Mr. Perez-Perez 

would not have pleaded guilty to the firearm charge. 

We have previously addressed the impact of failing to inform 

defendants that guilt required knowledge of their unlawful status. United 

States v. Trujillo, 960 F.3d 1196 (10th Cir. 2020). In that case, we 

concluded that the omission hadn’t affected substantial rights because the 

defendant couldn’t credibly deny awareness of his felony status: He had 

been convicted of multiple felonies, had served time in prison, and had 

admitted his felony status. Id. at 1208. So we assumed that the defendant 

would have pleaded guilty even if he had known of the government’s 

burden to prove knowledge of his unlawful status. Id.

But we acknowledged that “if the evidence of a defendant’s 

knowledge of his felony status is weak, we can presume his substantial 

rights were affected because he might have proceeded to trial if he had 

known the government would be required to prove he knew he was a 

felon.” Id. at 1207. This presumption would be equally applicable if the 

government had only weak evidence of the defendant’s knowledge of his 

immigration status. See United States v. Balde, 943 F.3d 73, 97 (2d Cir. 

2019) (concluding that the defendant’s substantial rights were affected 

because his immigration status was “hotly contested”). 
6 

In determining the strength or weakness of the evidence involving 

Mr. Perez-Perez’s knowledge of his immigration status, we must consider 

the nature of his removal proceedings. The government started removal 

proceedings in 2016, but Mr. Perez-Perez was never removed.2

 He began 

the process of adjusting to lawful status based on his marriage to a U.S. 

citizen, and the government returned his bond money to him. No one told 

him to leave the United States, and nothing further took place in the 

removal proceedings.3

 Why would Mr. Perez-Perez have thought that he 

was still unlawfully in the United States? 

Wouldn’t anyone in his shoes think that his status had changed? In 

2016, Mr. Perez-Perez had presumably known that he had been 

undocumented, arrested, and administratively charged with unlawful 

presence. But the circumstances changed by the time that he was found 

with a firearm. By then, the government had returned his bond money, his 

marriage to a U.S. citizen had provided a pathway to citizenship, he had 

begun the process to obtain an adjustment of status, and no one had told 

him to leave the United States. 

2

 The presentence report also notes that in 2012, Mr. Perez-Perez “was 

charged by Immigration and Customs Enforcement for Illegal Entry, but no 

charges were filed.” R. vol. 2, at 309. 

3 Mr. Perez-Perez states that the removal proceedings were closed, but 

the record does not say that the proceedings were closed. 
7 

This court has acknowledged the technicalities and complexity of our 

immigration laws. See, e.g., United States v. Chang Hong, 671 F.3d 1147, 

1153 (10th Cir. 2011). Even a well-educated layperson might have 

struggled to understand that he was unlawfully present under these 

circumstances. But Mr. Perez-Perez was not well-educated: He had only a 

sixth-grade education, could barely read, and didn’t speak English. 

Under these circumstances, defense counsel could persuasively argue 

that at the time of the offense, Mr. Perez-Perez had believed that he was 

lawfully in the United States. Countering that argument would likely have 

proven difficult, and the government would have had to prove knowledge 

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); see 

p. 9, 11–12, below. 

Given the government’s difficulty in proving Mr. Perez-Perez’s 

knowledge of his unlawful status, we should presume that the failure to 

inform him of this element affected his substantial rights. United States v. 

Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see p. 5, above. 

B. The government would also have faced difficulty in proving 

Mr. Perez-Perez’s constructive possession of 100 grams or 

more of heroin. 

Despite this presumption, the majority affirms, reasoning that Mr. 

Perez-Perez would likely have pleaded guilty anyway because the 

agreement with the government relieved him of a potential mandatory 

minimum term of five years. In my view, however, the government would 
8 

have had extraordinary difficulty in proving Mr. Perez-Perez’s possession 

of enough heroin to trigger the mandatory minimum. 

In a single sentence, the government asserted that “the government 

could easily have established a drug quantity above the 100-gram threshold 

for the drug charges in the indictment.” Government’s Resp. Br. at 18; see 

pp. 12–13, below. For this assertion, the government relied on the 

presentence report’s attribution of “responsibility” to Mr. Perez-Perez for 

462 grams of heroin. 

But Mr. Perez-Perez was never charged with distributing 462 grams. 

He was initially charged only with distributing 100 grams or more on 

October 25, 2017. According to the presentence report, the only heroin 

found that day was roughly 186 grams in a shoe and roughly 1 gram on a 

kitchen table. 

Mr. Perez-Perez acknowledges that part of “the calculus” is the 

relative strength of the government’s evidence that Mr. Perez-Perez had 

possessed enough heroin on October 25, 2017, to trigger the mandatory 

minimum. Oral Argument at 2:14. The only way to evaluate the strength of 

that evidence is to assess the appellate record. See United States v. 

Dussard, 967 F.3d 149, 156–57 (2d Cir. 2020) (evaluating the appellate 

record to determine the effect on the defendant’s substantial rights based 

on a negotiated guilty plea that had eliminated the possibility of a ten-year 

mandatory minimum sentence). 
9 

At sentencing, the district court considered Mr. Perez-Perez’s 

relevant conduct to include the heroin found in the shoe. U.S.S.G. 

§ 1B1.3(a)(1)(A)–(B). But Mr. Perez-Perez didn’t actually possess any 

heroin on October 25, 2017; the government’s only possible theory of guilt 

would involve constructive possession. See, e.g., United States v. 

McCullough, 457 F.3d 1150, 1168 (10th Cir. 2006). For constructive 

possession, the government would have needed to prove beyond a 

reasonable doubt that Mr. Perez-Perez (1) had knowingly possessed the 

power to exercise dominion or control over the contraband and (2) had 

actually intended to exercise control. See United States v. Little, 829 F.3d 

1177, 1182 (10th Cir. 2016) (elements); In re Winship, 397 U.S. 358, 364 

(1970) (proof beyond a reasonable doubt). 

Given this burden, the government would likely have been unable to 

prove Mr. Perez-Perez’s possession of 100 grams of heroin. On the day in 

question, Mr. Perez-Perez and another man were standing in the kitchen. 

The only heroin in the kitchen totaled a little over 1 gram (1.094 grams). 

For the mandatory minimum, the government needed to prove Mr. PerezPerez’s constructive possession of roughly 99 more grams. 21 U.S.C. 

§ 841(a)(1), (b)(1)(B)(i). 

Law-enforcement officers found roughly 186 grams of heroin in a 

shoe in the closet of another room. But Mr. Perez-Perez has consistently 
10 

denied that this heroin was his. For example, he argued in district court 

that the evidence hadn’t tied him to the heroin found in the shoe: 

[D]uring a post arrest interview, Torres stated that he was 

responsible for what was in the bedroom, meaning that he was 

responsible for the heroin in there. During the interview, in no 

way did Mr. Torres indicate that Mr. Perez was involved with his 

187.09 grams of heroin. Further, nothing in the bedroom points 

that Mr. Perez was using the room. None of the documents nor 

items found in the bedroom demonstrate any ownership to Mr. 

Perez. Also, throughout law enforcement’s operation, which 

included three controlled buys and surveillance of the apartment, 

no evidence ever pointed that Mr. Torres and Mr. Perez were 

involved in the same operation. 

Mr. Perez-Perez’s Objection to Presentence Report at 5–6 (citations 

omitted). 

If prosecutors had pursued the initial charge, they would have had 

eight problems in trying to show Mr. Perez-Perez’s constructive possession 

of this heroin: 

1. The 186 grams of heroin was found inside a shoe in the 

bedroom closet. Presentence Report at 7; Transcript of 

Sentencing at 19 (Testimony of DEA Agent David Nutley). 

2. The shoe was a size ten, and Mr. Perez-Perez contends that he 

wears a size 11 shoe. Amended Criminal Complaint at 3; 

Report of Investigation at 3, 6; Transcript of Sentencing at 20. 

3. Mr. Perez-Perez was not in the bedroom at the time of the 

arrest. Asleep in the bedroom was another man, Mr. Diego 

Torres-Ledesma. E.g., Amended Criminal Complaint at 2–3; 

Transcript of Sentencing at 18, 24 (Testimony of DEA Agent 

David Nutley); United States’ Sentencing Memorandum at 3. 

4. Mr. Torres-Ledesma stated that he lived in the apartment. E.g., 

United States’ Sentencing Memorandum at 5. 
11 

5. Mr. Torres-Ledesma admitted several times that the heroin in 

the shoe was his. Presentence Report at 8 (noting that Mr. 

Torres-Ledesma “stated that he was responsible for what was 

found in the bedroom” and later “restated that it was his 

heroin”); Amended Criminal Complaint at 3; Transcript of 

Sentencing at 23 (Testimony of DEA Agent David Nutley). 

6. Mr. Torres-Ledesma never said that he was working with or for 

Mr. Perez-Perez. Transcript of Sentencing at 23 (Testimony of 

DEA Agent David Nutley). 

7. Mr. Perez-Perez’s primary residence was elsewhere. 

Presentence Report at 6. 

8. The apartment (where the heroin was found) was rented in the 

name of another individual, Mr. Cesar Martinez—not Mr. 

Perez-Perez. Transcript of Sentencing at 22 (DEA Agent’s 

admission that the investigation found that “the apartment was 

not rented by Mr. Perez”); id. at 44 (the government’s 

concession that the property “was not rented to Mr. PerezPerez’s name”). 

The government pointed out that Mr. Perez-Perez had a key to the 

apartment. United States’ Sentencing Memorandum at 4. And no one 

questions his access to the apartment. But the government needed to prove 

beyond a reasonable doubt not just Mr. Perez-Perez’s access but also his 

intent to exercise dominion over heroin 

 found inside a shoe in a closet, 

 in a shoe that wouldn’t have fit Mr. Perez-Perez’s foot, 

 claimed multiple times by another man, Mr. Torres-Ledesma, 

 found in a bedroom where Mr. Torres-Ledesma was sleeping, 

and 

 in an apartment rented to Mr. Martinez (not Mr. Perez-Perez). 
12 

See Alleyne v. United States, 570 U.S. 99, 107–08 (2013) (requirement of 

proof beyond a reasonable doubt because of the resulting mandatory 

minimum sentence). Given the difficulty of that burden, the government 

might not even have tried to prove Mr. Perez-Perez’s constructive 

possession of the heroin in the shoe. If the government had persisted with 

the charge, however, Mr. Perez-Perez would likely have obtained an 

acquittal. 

The majority notes that Mr. Perez-Perez did not argue in his 

appellate briefing that the government would have had difficulty proving 

the initial heroin charge. There’s a reason for that. The government waited 

until oral argument to develop an argument that it could have proven 

possession of 100 or more grams of heroin. 

In briefing, Mr. Perez-Perez argued that the government probably 

could not have proven knowledge of his unlawful status. I agree with him. 

Given the government’s likely inability to prove Mr. Perez-Perez’s 

knowledge of his unlawful status, we would presume a reasonable 

probability that he would not have pleaded guilty to the firearm charge. 

See United States v. Trujillo, 960 F.3d 1196, 1207 (10th Cir. 2020); see 

also p. 5, above. 

Despite this presumption, the government responded that (1) Mr. 

Perez-Perez had not contested his status and (2) the government could have 

proven knowledge of his prohibited status. The government made only a 
13 

single, cursory reference to Mr. Perez-Perez’s benefit from the plea 

agreement; even that cursory reference appeared only in the course of an 

argument that Mr. Perez-Perez should have sought to change his plea 

before the sentencing. See p. 8, above. 

Had the government clearly argued that Mr. Perez-Perez would have 

pleaded guilty to the firearm offense to avoid a mandatory minimum, he 

could have countered the argument in his reply brief. But the government 

waited until oral argument to develop an argument that the original charges 

bore on the inquiry into Mr. Perez-Perez’s substantial rights. 

As Mr. Perez-Perez pointed out, we have no way of knowing why the 

government dropped the original charges. Oral Argument at 12:06–12:35. 

The majority’s explanation might be right: The government might have 

dropped the charges at Mr. Perez-Perez’s insistence (for reasons that we 

can only speculate about). But the government might also have dropped the 

initial charge on drug quantity because of doubt that it could prove Mr. 

Perez-Perez’s intent to exercise dominion over heroin 

 in someone else’s shoe 

 in someone else’s bedroom 

 in someone else’s apartment. 

Without substantive briefing on this issue, we can only speculate on 

why the government agreed to amend the charges. Speculation aside, our 

presumption remains. See pp. 5–6, above. 
14 

* * * 

I would not uphold the sentence based on an argument that (1) the 

government did not develop until oral argument and (2) lacks support in 

the record. We have previously articulated a presumption that a 

defendant’s substantial rights are affected when the government has only 

weak evidence on knowledge of prohibited status. We have little reason to 

jettison that presumption here. That presumption would compel us to find a 

substantial effect on Mr. Perez-Perez’s substantial rights. 

IV. The error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. 

The omission also satisfies the fourth prong of the plain-error test by 

affecting the fairness, integrity, or public reputation of judicial 

proceedings. The third and fourth prongs are independent inquiries, and the 

fourth prong is satisfied only when an error is “particularly egregious” and 

inaction would result in a “miscarriage of justice.” United States v. 

Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc) (citation 

omitted). 

For example, the fourth prong is satisfied when the error causes the 

conviction or sentencing of an actually innocent defendant. United States 

v. Trujillo-Terrazas, 405 F.3d 814, 820 n.1 (10th Cir. 2005). But a 

defendant can satisfy the fourth prong without proving actual innocence. 

Id. Mr. Perez-Perez has satisfied this prong because the government 
15 

probably couldn’t prove his knowledge of prohibited status or constructive 

possession of the heroin in the shoe. 

Given the likelihood of an acquittal, affirmance would create a 

miscarriage of justice. Because of the court’s failure to fully inform Mr. 

Perez-Perez of the elements of the firearm charge, he pleaded guilty 

despite the probability that 

 the government couldn’t prove guilt and 

 he would have pleaded not guilty if he had known of the 

government’s burden to prove knowledge of his prohibited 

status. 

The obvious error thus affects the fairness, integrity, or public reputation 

of the judicial proceedings. 

V. Conclusion 

In my view, there is a reasonable probability that absent the error, 

Mr. Perez-Perez wouldn’t have pleaded guilty because of (1) the weakness 

of the government’s evidence showing knowledge of his unlawful status 

and (2) the government’s inability to prove Mr. Perez-Perez’s constructive 

possession of at least 100 grams of heroin. 

 Because Mr. Perez-Perez has satisfied his burden under all four 

prongs of the plain-error test, I would vacate his conviction and remand 

with instructions for the district court to impose a new sentence on the 

remaining heroin charge.