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 Defe nder (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denv er, Colorado, for Defendant-Appellant. Tiffany Walters, Assistant Unite d States Attorney (John C. Anderson, United States Attorney, with her on th e brief), Denver, Colorado, for Plaintiff-Appellee.

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

________________ _________________ EBEL , Circuit Judge.

________________ _________________ Defendant-Appellant Abiel Perez-Perez (ref erred to by the parties and here as Perez) pled guilty to being an alien in possession of a firear m in violation of 18 U.S.C. § 922(g)(5). On appeal, he challe nges the district court’ s failure to advise him of two elements of that offense: (1) the alien is illeg ally or unlawfully present in FILED United States Court of Appeals Tenth Circuit 

### March 29, 2021 Christopher M. Wolpert Clerk of Court2 the United States; and (2) the al ien knows that he is illega lly or unlawfully present. Perez failed to raise this i ssue below and this Court thus reviews for plain error. The government concedes that the omission of th ese elements constitute s error that is now plain on appeal. The only dispute is whet her 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 affect ed his substantial rights. Alt hough Perez has a credible claim that, at the time of the offe nse, he did not know he wa s unlawfully present in the United States, he has failed to show a re asonable probability that he would not have pled guilty but for the district court’s error. This is be cause the context of Perez’s guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences attached to charges the govern ment 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-erro r prong. Exercising jurisd iction 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-grad e 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 h ope of obtaining better employment.3 Since then, Perez has remained in the Un ited States as an undocumented alien, working “under the table.” R ., Vol. 3 at 74. In 2011, Pe rez married a U.S. citizen, but he did not take any imme diate steps to obtain lawful residency status based on that marriage. In 2012, Immigration a nd Customs Enforcement charged Perez with illegal entry, but no criminal charges were filed. In 2016, Perez was placed in removal proceedings in immi gration 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 return ed. Perez was not removed. There is no evidence that Perez ever completed the process to achie ve lawful status based on his marriage or ever obt ained any lawful status. Drug Investigation and Arrest In August 2017, the Drug Enforcemen t Agency (DEA) began investigating Perez for heroin distribution. The DEA determined that Perez was operating a drugtrafficking organization, aide d by two associates. The i nvestigation culminated in raids on Perez’s stash house, where agents located 187 gr ams 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, ch arging 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 fi ve-year mandatory minimum. Perez was not initially charge d with any firearms-related offenses. Eighteen months later, the parties reached a plea agr eement. Perez agreed to plead guilty to an information charging hi m 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 a nd 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 ma ndatory minimum sentence. In exchange, the government agreed to dismiss th e charges in the orig inal indictment. Perez’s plea agreement erroneously desc ribed the elements of his firearms offense as (1) “the defendant knowingly possessed a firear m”; (2) “the defendant was an alien at the time he possess ed the firearm”; and (3) the firearm moved in interstate commerce. Id. at 143. It did not inform Perez of the element re quiring that the alien be “illegally or unlawfully in the United St ates.” 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 comp letion of his sentence. At his plea hearing, Perez confirmed that he had read and understood the charges in his information and that his a ttorney had read him the elements of the5 offenses. However, Perez wa s never informed that some non-citizens are allowed to possess firearms and that i llegal or unlawful status was an element of § 922(g)(5). Additionally, when Perez pled guilty to that offense, th e government only had to establish the elements of (1) status as an alien illegally or unl awfully present in the United States, and (2) knowing possession of a firearm that travel ed 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 pr ove 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 Stat es, 139 S. Ct. 2191 (2019), holding that a defendant’s knowledge of his prohibited status is a required elemen t 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 Stat es 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 firear ms offense under the guidelines rules regard ing grouping and multiple count ad justments. This resulted in an advisory guidelines range of 78 to 97 months in prison. Perez argued for a downward variance and a below-guidelines se ntence of 37 months, but the district court sentenced him to 78 months on each c ount to run concurrently. This appeal6 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 acceptin g 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 mu st 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 s ubstantial rights; and (4) the error seriously affected th e fairness, integrity, or pub lic 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 “l ess 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 c ourt committed an error that became “clear or obvious at the time of the appeal.” G onzalez-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 “mus t 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 (10t h 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 Stat es v. Bustamante-C onchas, 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 plai n-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 presen t in the United States; and (2) that the defendant knew of his unlawful status. A guilty plea mu st be voluntary and intelligent, which requires that the defendant receive “real no tice of the true nature of the charge against him.” Bousley v. United States, 5 23 U.S. 614, 618 (1998) (quoting Smith v. O’Grady, 312 U.S. 329, 334 (1 941)). This requires noti ce 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 befo re this Court issued Trujillo. In his brief, he argued for a different standard, un der which the third prong is satisfied by a Rehaif error unless “the defendant was ma de aware of the missing elements through other means, or if the record contains an admission that w ould satisfy the elements.” Aplt. Br. 12. In his reply br ief, Perez conceded that th is argument is foreclosed by Trujillo.8 Accordingly, the district court plai nly erred by accepting Perez’s guilty plea despite Perez not being informed of two elem ents of § 922(g)(5). Yet Perez agreed to plead guilty to that ch arge (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 charge s 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 erro r. 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 ha ve pleaded guilty. For that reason, as explained in more detail below, the Cour t concludes that Pere z fails to satisfy plain-error review. In reaching that conclusion, we first c onsider Perez’s argum ent that he has a credible claim that he was not aware, at the time of his offense, that he was unlawfully present in the Un ited States or that he c ould not lawfully possess a firearm. Accepting that argumen t, we then turn to whethe r it establishes a reasonable probability that, but for the di strict court’s error, Perez would not have pled guilty. And that is where Perez’s argument fails.
A. Perez has a credible claim th at, at the time of hi s offense, he was not aware that he was unlawfully present in the United States. In the uninformed-guilty-plea context, a de fendant might be able to satisfy the third prong of plain-error review by esta blishing a plausible defense based on an erroneously omitted element. See United St ates 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 clai m 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 colora ble argument that, at the time of the offense, he was not aware that he was unl awfully present in th e United States. The record provides ample support for this poten tial defense: (1) Perez had been in the United States for at least seven years at th e time of his offense; (2) Perez was married to a U.S. citizen; (3) Perez’s U.S. citizen wife had initiated th e process for him to adjust his residency status to lawful based on their ma rriage; (4) Perez’s 2017 bond money was returned to him and the rem oval proceedings concluded, apparently, without him being removed; 3 and (5) Perez was illite rate, unsophis ticated, and unfamiliar with the complex ities 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 su fficient 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 dete rmination 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 woul d have pleaded,” but on “c ontemporaneous evidence to substantiate a defendant’s e xpressed 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 outsi de 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 th e third plain-error prong by showing that the government would have had a difficu lt time proving his guilt. See id. at 1207–08. Perez has made that showin g, and the government’s ar guments fail to establish otherwise. The government me rely reiterates that whatever Perez’s efforts to adjust his status to lawful, there is no evidence th at he completed the process and he never obtained a green card or other documentation of lawful stat us. This is true, but it only proves that Perez never had lawful st atus, not that he ne ver thought he had lawful status. The government does not ha ve 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 sist er 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 court11 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 l east, . . . reas onable grounds on which to contest his knowledge of his pr ohibited status to a jury.” Jawher, 950 F.3d at 580. Here too, Perez at leas t has reasonable grounds to contest this element to a jury. The government fails to distinguish t hose cases. It attempts to do so by pointing out that each defenda nt 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 firear m, regardless of whether he was in the United States lawfully or unlawfully. T hus, Perez had no reason to argue about his status, because he could not di spute that he was an alien. That Perez has a colorable argument to satisfy the third prong is further supported by comparison to th e Rehaif-fix cases the governme nt cites in which courts found this prong not satisf ied. 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 de fendant could not “credibly cl aim he was unaware that he was a felon” where he had been previously convicted of si x 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) (unpublis hed), 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 lack ed that knowledge. The government could gather further evidence and argue against Perez’s claim at tr ial, 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 plausi ble defense at trial and no choice but to plead guilty.” Balde, 943 F.3d at 97. We reject each of the government’s argumen ts to the contrary, but we consider two of note. 4 The first addresses the district cour t’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 be cause 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 theo ry. But in Ferrel, this Court found no effect on substantial rights where an omitted elem ent was (1) alleged in the indictment, (2) repeated in the plea agreement, (3) rep eated in the defendant’s plea statement, and (4) discussed by the defendant with his a ttorney. Id. at 763– 64. All that is

4 In addition to these two arguments, wh ich were raised in the government’s brief, at oral argument the government all uded 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 f actual allegation in the information. In further contrast with Fe rrel, 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 po ssessed the firearm.” R., Vol. 1 at 143. This inaccurate description of the elemen t nullifies any notice provided by the factual allegation in the information. For th ese reasons, we reje ct the government’s argument that Perez cannot satisfy the thir d 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 pres ent alien. The gove rnment sees that “admission” in (1) Perez’s fa ilure to object to the PSR’s listing of his immigration status as “illegal alien” a nd (2) various statements by Pe rez acknowledging that he is undocumented and worked “under the table. ” Aple. Br. 7, 12. The government argues that this admission a nd Perez’s failure to raise a ny claim as to his lawful status indicates that he knew all along he was illega l. But as mentioned above, because Perez was told that the offense app lied 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 th e information had provided actual notice, that would only apply to the error for th e omitted element “an alien unlawfully or illegally present in th e United States,” not the omitted knowledge-of-status element. Thus, this argument would not be fata l 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 unl awfully 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 wh at 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 es tablish a reasonable probability that, but for the district court’ s error, he would not have pled guilty.
B. Despite his plausible defense, P erez has not established a reasonable probability that, but for th e district court’s error, he would not have pled guilty. In some Rehaif-fix cases, establishi ng a plausible defense based on the omitted element might be sufficient to show that th e error affected the de fendant’s substantial rights. But in light of the particular circumstances of Perez’s plea agreement, his plausible-defense argument is not suffi cient 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 ha s 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) (des cribing a defendant claiming15 Rehaif error after pleading guilty to being a felon in possession of a firearm after his motion to suppress evidence wa s 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 el ement 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 distri bute at least 100 grams of heroin under 21 U.S.C. § 846. Those charges each ca rry 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) fir earms 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 manda tory minimum sentences. In light of those facts, we review what the plea ag reement 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 repl aced the quantity-specific distribution and conspiracy drug charges w ith 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 char ge. Second, that the new drug charge was uniquely tailored to Perez’s needs in that it omitted a specific quantity of drugs. Although an uns pecified-quantity charge is not unheard16 of, we think it uncommon. Such a char ge does not implicate mandatory minimum sentences. The unusualness of not having a specified qua ntity suggests that the new charge was tailored to Perez’s de sire to avoid mandatory minimums. In addition to modifying the drug ch arges, 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 unspeci fied-quantity drug charge, resulting in a multiple count adjustment in creasing Perez’s base offens e level by one level. In contrast, the original drug ch arges in the indictment woul d 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 tr anslated to an incr ease in the overall advisory guidelines range, from 70 to 87 m onths to 78 to 97 months. Thus, accepting the plea agreement resulted in a higher guide lines 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 dism issed, 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 charge s and the five-year mi nimum he faced on the original charges. Absent the plea agreement, Perez c ould not have argued for that sentence. These circumstan ces make clear that Perez’ s motivation for accepting the17 plea agreement was to avoid the mandatory minimums in the hope of obtaining a downward variance and reducing his incarcer ation period. We can confidently conclude this was Perez’s motivation becau se it was the only advantage offered to Perez under the new plea offer that he accepted. In essence, Perez gambled in accepti ng 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. Althou gh Perez’s counsel s uggested 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 mandat ory 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 unde r the original charge. Because Perez’s strategic choice did not pay off, he now wants to back out of his plea deal. But e ven had Perez known of the omitted elements, there is no reason to believe that would have impacted his d ecision to plead, because it would not have impacted his motivation. Perez made a calculated decisi on to accept this plea agreement in order to avoid the mandatory minimums. That calculus does not change depending on whether or not Pe rez had a chance to beat th e firearms offense, when he was not charged with that offense in the first instance.18 Indeed, what really matte red was the government’s ab ility to prove the initial drug charges, not its ability to prove the substitute fir earms offense. Critically, however, Perez never argues that the govern ment would have had any difficulty in proving those initial charges. Perez simply overlooks th is point, arguing only that because he has now established a plausi ble 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 ar gument to the gun char ge sufficient to satisfy the third plain-error pr ong. We think this fails to appreciate the circumstances under which Perez accepted the plea agreem ent, which was to avoid the mandatoryminimum requirements of the initial drug ch arges. (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, th e 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 probab ility 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 th e 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 ha ve pleaded guilty because of (1) the weakness of the government’s evidence show ing knowledge of his unlaw ful 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 diss ent makes a credible argument that the government might have had difficulty provi ng the initial drug charges. But because Perez did not make that argument, this a pproach would require us to reverse under plain-error review based on a ground not ar gued by the defendant. We decline to do so. Instead, we affirm because it is Pere z’s burden to establish that his substantial rights were affected, and, by not argui ng that the government would have had difficulty in proving the initial drugs charge s, he has not met hi s burden of proving plain error. In light of Perez’s motivation for taki ng the plea deal—a motivation that is unchanged by Rehaif—he has not establishe d a reasonable probability that, but for the omitted elements, he would not have plead ed guilty. Thus, Perez fails to satisfy the third prong of plain-error review. Be cause Perez does not satisfy that prong, we need not consider the fourth pro ng. See Trujillo, 960 F.3d at 1208.
* * * We conclude that the dist rict court did not commit reversible plain error by accepting Perez’s uninformed guilty plea because Perez fails to es tablish a reasonable20 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 AFFI RM the district court on all issues presented on appeal.

7 Perez had additionally argued that the district court’s e rror regarding the firearms offense also require d vacating the sentence for the unspecified-quantity drug offense along with the sentence for the fi rearms 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. Ab iel Perez-Perez, plea ded guilty to being a prohibited person in po ssession of a firearm and ammunition. 18 U.S.C. § 922(g)(5)(A). But the prohibition ap plies only when defend ants 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 pl ea agreement didn’t mention the need for th e government to prove the knowledg e required for a conviction. I agree with the majority that th e omission in th is plea agreement constitutes an obvious error. But the majority concludes that the error did not affect Mr. Pere z-Perez’s substantial rights . I respectfully disagree. If Mr. Perez-Perez had known of the knowledge element, there is a reasonable probability th at 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-Pe rez with two drugtrafficking offenses:
1. Possession of at leas t 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 manda tory minimum sentence would be five years’ imprisonment. 21 U.S.C. § 841(b)(1)(B)(i). Instead of pursuing thes e 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 unspeci fied 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 ammun ition 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 defe ndant 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 th e United States and

 knowledge of his un lawful status. Nor were these elements mentioned in the written factual basis for Mr. Perez-Perez’s guilty plea. Instead, the factual ba sis reflected only Mr. Perez-Perez’s admission th at he “was not a citizen or national of the United States.” Id. at 145.3 Because he pleaded guilty to the additional firearm ch arge along with the drug offense, Mr. Perez-Perez’ s guideline range increased for the multiple counts. With th e firearm charge, the guideline range was 78–97 months. Without the firearm charge, th e guideline range would have been only 70–87 months. Bu t if convicted on the initial drug charge, Mr. PerezPerez would have faced a mandatory mini mum of five years’ imprisonment.
II. We review for plain error. After Mr. Perez-Perez pleaded guilty, the Supreme Court held in Rehaif v. Un ited 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 mu st show that (1) an error took place, (2) th e error was plain, (3) the er ror affected th e 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 (10t h Cir. 2014) (citation omitted). The government concedes that Mr. Pe rez-Perez satisfied the first two requirements. I agree with this conce ssion, for the distri ct court committed4 an obvious error 1 by failing to info rm 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 fo r the obvious erro r, a reasonable probability existed that he would not have plea ded guilty to unlawful possession of a firearm. Trujillo , 960 F.3d at 1201. U nder this test, he needed only to s how “a probability sufficient to undermine confidence in the outcome.” United States v. Bustamante-Conchas , 850 F.3d 1130, 1138 (10th Cir. 2017) (e n 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 we ak evidence of Mr. PerezPerez’s knowledge of his unlawful status. The government contends that Mr. Perez-Perez kn ew of his unlawful status, so informing him of the elemen t wouldn’t have affected his decision to plead guilty. But Mr . Perez-Perez argues th at the government would have had difficulty proving knowledge of his un lawful status when he possessed the firearm. I agree with Mr. Per ez-Perez. In light of his background and the complex procedural steps in his re moval proceedings, the government

1 The error is obvious only in retrospect beca use the district court understandably relied on our precedents ex isting at that time. The district court lacked the benefit of Rehaif

.5 would have had a difficult time proving knowle dge 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 th e impact of failing to inform defendants that guilt required knowledg e 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 pl eaded guilty even if he had known of the government’s burden to prove knowledge of his unlawful status. Id. But we acknowledged that “if th e evidence of a defendant’s knowledge of his felony status is we ak, we can presume his substantial rights were affected beca use he might have proceeded to trial if he had known the government would be required to prov e he knew he was a felon.” Id. at 1207. This presumption would be equally app licable if the government had only weak evidence of the defend ant’s knowledge of his immigration status. See United States v. Balde , 943 F.3d 73, 97 (2d Cir. 2019) (concluding that the defendant’s substantia l rights were affected because his immigration status was “hotly contested”).6 In determining the strength or w eakness of the evid ence involving Mr. Perez-Perez’s knowledge of his immi gration status, we must consider the nature of his remo val proceedings. The govern ment started removal proceedings in 2016, but Mr. Perez-Perez was never removed. 2 He began the process of adjusting to lawful st atus based on his marriage to a U.S. citizen, and the gov ernment return ed 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-Per ez have thought that he was still unlawfully in the United States? Wouldn’t anyone in his shoes think that his st atus had changed? In 2016, Mr. Perez-Perez had presumably known that he had been undocumented, arrested, and administ ratively charged with unlawful presence. But the circumstances cha nged by the time that he was found with a firearm. By then, the gov ernment 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 adjust ment of status, and no one had told him to leave th e United States.

2 The presentence report also notes that in 2012, Mr. Perez-Perez “was charged by Immigration and Customs En forcement for Illegal Entry, but no charges were filed.” R. vol. 2, at 309.

3 Mr. Perez-Perez states that the re moval proceedings were closed, but the record does not say that the proceedings were closed.7 This court has acknowledg ed the technicalities an d 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 unlawfull y present under these circumstances. But Mr. Pe rez-Perez was not well-ed ucated: 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 o ffense, Mr. Perez-Perez ha d believed that he was lawfully in the United States. Counte ring that argument would likely have proven difficult, and th e government would have had to prov e knowledge beyond a reason able 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 presum e that the failure to inform him of this element a ffected 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 difficult y in proving Mr. Perez-Perez’s constructive possession of 100 grams or more of heroin. Despite this presumption, the majo rity affirms, reasoning that Mr. Perez-Perez would likely have pleaded guilty anyway because the agreement with the government relie ved him of a pote ntial mandatory minimum term of five years. In my view, however, th e government would8 have had extraordinary difficulty in proving Mr. Perez-Perez’s possession of enough heroin to trigge r 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.” Governme nt’s Resp. Br. at 18; see pp. 12–13, below. For th is assertion, the gove rnment relied on the presentence report’s attribution of “r esponsibility” to Mr. Perez-Perez for 462 grams of heroin. But Mr. Perez-Perez was never char ged with distributing 462 grams. He was initially charged only with distributing 100 gr ams or more on October 25, 2017. Accordin g to the presentence re port, the only heroin found that day was roughly 186 grams in a shoe an d roughly 1 gram on a kitchen table. Mr. Perez-Perez acknowledges that pa rt of “the calculus” is the relative strength of th e government’s evidence th at Mr. Pere z-Perez had possessed enough heroin on October 25 , 2017, to trigger the mandatory minimum. Oral Argum ent at 2:14. The only way to evaluate the strength of that evidence is to assess the a ppellate record. See United States v. Dussard , 967 F.3d 149, 156–57 (2d Cir. 2020) (evaluating the appellate record to determine the effect on th e defendant’s substa ntial rights based on a negotiated guilty plea that had eliminat ed the possibility of a ten-year mandatory minimum sentence).9 At sentencing, the district cour t considered Mr. Perez-Perez’s relevant conduct to in clude 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 on ly possible th eory of guilt would involve constr uctive possession. See, e.g. , United States v. McCullough , 457 F.3d 1150, 1168 (10th Cir. 2006). For constructive possession, the governmen t would have needed to prove beyond a reasonable doubt th at Mr. Perez-Perez (1) ha d knowingly possessed the power to exercise dominion or control over th e 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 wo uld likely have be en unab le to prove Mr. Perez-Perez’s po ssession 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 minimu m, the governmen t needed to pr ove Mr. PerezPerez’s constructive poss ession of roughly 99 mo re grams. 21 U.S.C. § 841(a)(1), (b)(1)(B)(i). Law-enforcement officers found r oughly 186 grams of heroin in a shoe in the closet of another room. But Mr. Perez-Perez has consistently10 denied that this heroin was his. For example, he argued in district court that the eviden ce hadn’t tied him to the he roin found in the shoe: [D]uring a post arrest interview, Torres stated that he was responsible for what was in th e bedroom, meaning that he was responsible for the heroin in ther e. 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 be droom demonstrate an y ownership to Mr. Perez. Also, throughout law enfo rcement’s oper ation, which included three controll ed buys and surveillance of the apartment, no evidence ever poin ted that Mr. Torres and Mr. Perez were involved in the same operation. Mr. Perez-Perez’s Objection to Pr esentence Report at 5–6 (citations omitted). If prosecutors had pursued the initial char ge, they woul d 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 Memo randum at 3.
4. Mr. Torres-Ledesma stated that he lived in the apartment. E.g. , United States’ Sentenci ng Memorandum at 5.11 5. Mr. Torres-Ledesma admitted seve ral times that the heroin in the shoe was his. Presentence Report at 8 (noting that Mr. Torres-Ledesma “state d that he was respon sible for what was found in the bedroom ” and later “restate d 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 th at he was worki ng 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 “w as not rented to Mr. PerezPerez’s name”). The government pointed out that Mr . Perez-Perez ha d a key to the apartment. United States’ Sentencing Memo randum 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-Pe rez’s access but also his intent to exercise dom inion 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-Led esma was sleeping, and

 in an apartment rented to Mr. Ma rtinez (not Mr. Perez-Perez).12 See Alleyne v. United States , 570 U.S. 99 , 107–08 (2013) (re quirement of proof beyond a reasonab le doubt because of th e resulting mandatory minimum sentence). Give n the difficulty of that burden, the government might not even have tr ied to prove Mr. Perez- Perez’s constructive possession of the he roin in the shoe. If the gove rnment had persisted with the charge, however, Mr. Perez-Pere z would likely have obtained an acquittal. The majority notes that Mr. Pe rez-Perez did no t argue in his appellate briefing that the government would have had difficulty proving the initial heroin charge. There’s a reason fo r that. The gover nment waited until oral argument to develop an argument that it could have proven possession of 100 or mo re grams of heroin. In briefing, Mr. Perez- Perez argued that th e government probably could not have proven know ledge of his unlawful st atus. I agree with him. Given the government’s likely inab ility to prove Mr. Perez-Perez’s knowledge of his unlawf ul 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 presumpt ion, the government re sponded that (1) Mr. Perez-Perez had not contested his status and (2 ) the government could have proven knowledge of his prohibited status. The government ma de only a13 single, cursory reference to Mr. Pe rez-Perez’s benef it from the plea agreement; even that cursory reference appeared only in the course of an argument that Mr. Perez- Perez should have sough t to change his plea before the sentencing. See p. 8, above. Had the government clearly argued th at 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 inqui ry 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 th e government might also have dropped the initial charge on drug quantity because of doubt that it could prove Mr. Perez-Perez’s intent to exerci se dominion ov er 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. Specu lation aside, our presumption remains. See pp. 5–6, above.14 * * * I would not uphold the se ntence based on an argument that (1) the government did not develop until oral argu ment and (2) l acks support in the record. We have previously articulated a presumption that a defendant’s substantial rights are affected when the government has only weak eviden ce on knowledge of pr ohibited status. We ha ve little reason to jettison that presumption here. That pr esumption would comp el us to find a substantial effect on Mr. Per ez-Perez’s substantial rights.
IV. The error seriously affects the fairness, integr ity, or public reputation of judicial proceedings. The omission also satisfi es the fourth prong of the plain-error test by affecting the fairness, integrity, or public re putation of judicial proceedings. The third an d fourth prongs are indepe ndent 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 sa tisfied when the error causes the conviction or senten cing 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 pr oving actual innocence. Id. Mr. Perez-Perez has satisfied this prong because the government15 probably couldn’t prove hi s knowledge of prohibited st atus or constructive possession of the hero in in the shoe. Given the likelihood of an acquittal, affirm ance would create a miscarriage of justice. B ecause of the court’s failu re 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 plea ded not guilty if he had known of the government’s burd en to prove knowledge of hi s prohibited status. The obvious error thus a ffects the fairness, integr ity, or public reputation of the judicial proceedings.
V. Conclusion In my view, there is a reasonable probability th at absent the error, Mr. Perez-Perez wouldn’t have pleade d 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-Per ez’s constructive possession of at least 100 grams of heroin.
Because Mr. Perez-Pe rez has satisfied his burden under all four prongs of the plain-erro r test, I would vacate hi s conviction and remand with instructions for the district court to impose a ne w sentence on the remaining heroin charge.