PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SCOTT RAYMOND TIGNOR, Defe ndant - Appellant. No. 19-1158

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18- CR-00524-PAB-1)

________________ _________________ Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, wi th her on the briefs), Denver, Colora do, for the Defendant-Appellant. Karl L. Schock, Assistant United Stat es Attorney (Jas on R. Dunn, United States Attorney, with hi m on the brief), Denver, Co lorado, for the PlaintiffAppellee.

________________ _________________ Before LUCERO , KELLY, and BACHARACH , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ This appeal involves a guilty plea for posse ssing a firearm after a felony conviction. 18 U. S.C. § 922(g)(1). When de fendant Mr. Scott Tignor FILED United States Court of Appeals Tenth Circuit 

### December 1, 2020 Christopher M. Wolpert Clerk of Court2 pleaded guilty, our case law said that someon e would incur guilt by knowingly possessing a fi rearm after obtaining a felony conviction. United States v. Griffin , 389 F.3d 1100, 1104 (10th Ci r. 2004). Under this case law, defendants wo uld remain guilty even if they hadn ’t known that their prior convictions involved felonies. United States v. Games-Perez , 667 F.3d 1136, 1140–42 ( 10th Cir. 2012). But soon after Mr. Tigno r pleaded guilty, the case law changed when the Supreme Court decided Rehaif v. United States , 139 S. Ct. 2191 (2019). There the Supreme Court he ld that the government n eeded to prov e that the defendant had known that hi s status prohibit ed possession of a firearm. 139 S. Ct. at 2200. Given the holding in Rehaif , the government needed to prove that Mr. Tignor ha d known that his prior c onviction wa s punishable by more than a year in prison. United States v. Trujillo , 960 F.3d 1196, 1200–01 (10th Cir. 2020). Invoking Rehaif , Mr. Tignor urges vacatur of his guilty plea because he wasn’t told about the newly recogn ized element. For this issue, the parties agree that the plai n-error standard applies. Under this standard, we consider whether Mr. Tignor showed a reasonable probability that he would not have pleaded gu ilty if he’d known that the government needed to prove knowledge of hi s prohibited status. Id. at 1207–08. We answer “no” because Mr. Tignor lacked a plausible defense. We thus affirm his conviction.3 I. Mr. Tignor’s prior conviction wa s punishable by over a year in prison. In 2002, Mr. Tignor was convicted in Texas of aggravated assault causing serious bod ily injury. Under Texas law, aggravated assault constituted a second-deg ree felony punishable by 2 to 20 years’ imprisonment. See Tex. Penal Code §§ 22. 02(a)(1), (b), 12.33(a). For the conviction on ag gravated assault, Mr. Tignor was sentenced to 10 years of shock probation. 1 But the court later revoked probation and imposed a prison term of 7 years. Mr . Tignor served abou t 2 years of that sentence and was released about 13 year s ago. After obtaining release, he moved to Colorado. While living in Colo rado, Mr. Tignor asked for someone in the Sheriff’s Department to come to his house to investigate a theft. Unbeknownst to Mr. Tignor, the officers had a wa rrant for his arrest. So they came to his house prepared to ar rest him. Unaware of the warrant, Mr. Tignor announced that he ha d a firearm. The officers retrieved the firearm, which led to a federal ch arge of unlawfully po ssessing a firearm after a felony conviction. See 18 U.S.C. § 922(g)(1). Th e charge culminated in a

1 At that time, Texas used the term “shock probation” to refer to a term of probation after the defendant had already spent time in confinement. State v. Garza , 442 S.W.3d 585, 587–88 (Tex. App. 2014).4 guilty plea. Afterward, Mr. Tignor sa id that he had known about a Texas law that he thought would allow him to possess a firearm at his home.
II. Mr. Tignor’s forfeiture of his appe llate argument triggers plainerror review. Mr. Tignor did not raise his appellat e argument in district court, so we apply the plai n-error standard. United States v. Trujillo , 960 F.3d 1196, 1201 (10th Cir. 2020 ). Under this standard, Mr. Tignor must show an obvious error that affects his substant ial rights and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting United States v. Samora , 954 F.3d 1286, 1293 (10th Cir. 2020)).
III. The district court committed an obvious error. The government concedes the existen ce of an obvious error, and we accept this concession. The Federal Ru les of Criminal Procedure require district courts to inform a defendant of the nature of the charge before accepting a guilty pl ea. Fed. R. Crim. P. 11(b)(1)(G). Given this requirement, the court must inform defendants of the elemen ts before accepting their guilty pleas. Hicks v. Franklin , 546 F.3d 1279, 1284 (10th Cir. 2008). Despite this requiremen t, the district cour t accepted Mr. Tignor’s guilty plea without telli ng him that the governme nt needed to prove knowledge of his proh ibited status. The omission is understandable, but it is still an obvious er ror under current law. See Trujillo , 960 F.3d at 12015 (“While the district court correctly applied the law as it existed at the time, the court’s failure to in form Defendant of the know ledge-of-status element constitutes error that is plain on appeal.”). IV. Mr. Tignor hasn’t prov en a reasonable prob ability that he would have pleaded not guilty without the error. Even though an obv ious error took place, Mr. Tignor needed to show that the error had affected his substantial rights. Id. The requir ed showing entails a reasonable prob ability that, without the error, Mr. Tignor would have pleaded not guilty. Id. at 1208. A. Mr. Tignor did not waive this argument. The government argues that Mr. Tignor waived th is argument by failing to address it in hi s opening brief. There he argued that the district court had committed a structural error, requiring reversal of the conviction even if he couldn’t show a reasonable probability of a different result. At the time, we hadn’t decided whether to characterize this error as a structural error and a circui t split existed elsewhere. Compare United States v. Williams , 946 F.3d 968, 972–73 (7th Cir. 2020) (c oncluding that this error was not structural), with United States v. Gary , ___ F.3d ___, 2020 WL 1443528, at *4 (4th Cir. Mar. 25, 2020 ) (concluding that this error was structural). Given this circuit split, the governme nt argued that we should join those courts declining to character ize this error as structural. After the briefing was complete, we decided the issue, agreeing w ith the gov ernment6 that the error wa s not structural. United States v. Trujillo , 960 F.3d 1196, 1207–08 (10th Cir. 2020). Bu t the government then argued that Mr. Tignor had waived this argument by failing to address it in his opening brief. We disagree. When briefing was complete, we hadn’t yet decided whether this error was structural. Give n the circuit split, Mr. Tignor could reasonably urge the existence of a structural error and he did. Under these circumstances, Mr. Tignor reasonably replied to th e government by arguing that he’d satisfied the standard embrac ed by the government

. See United States v. Zander , 794 F.3d 1220, 1232 n.5 (10t h Cir. 2015) (allowing the appellant to urge plain error in the re ply brief after urgi ng in the opening brief that the error had been preserve d). We thus address the argument that Mr. Tignor newly presente d in his reply brief.
B. Mr. Tignor has not shown a rea sonable probability that he would have pleaded not guilty without the error. Mr. Tignor urges a reason able probability that he would have pleaded differently if he ha d known that the governm ent needed to prove knowledge of his prohibit ed status. According to Mr. Tignor, he would have pleaded not guilty because he

 had not known that hi s Texas offense was punishable by more than one year imprisonment and

 had believed that the gove rnment restored all of his civil rights.7 See 18 U.S.C. § 921(a)(20 ) (defining a “crime pun ishable by imprisonment for a term exceeding one ye ar” to exclude “[ a]ny conviction . . . for which a person . . . has had ci vil rights restored”). 1. A crime punishable by more th an one year in prison Mr. Tignor argues that the government couldn’t prove knowledge that his prior offense was punish able by over a year in prison. In support, he argues that

 he may have forgotten the deta ils of his Texas conviction because it had been imposed r oughly sixteen years earlier and

 the original sentence entailed ten years of shock probation (not imprisonment) and he served two years in prison only after his probation had been revoked. Given these facts, Mr. Tigno r argues that he could have plausibly defended on the current charge by denying knowledge that his Texas crime had carried a potential prison sentence exceeding a year. We disagree. Even if Mr. Tignor had fo rgotten some of the de tails, he knew that he was a convicted felon. For example, Mr . Tignor argued at sentencing that he thought that a Texas la w allowed him to possess a firearm. But that law applied only to convicted felons. See Tex. Penal Code § 46.04(a)(1)–(2) (stating that individu als convicted of a fe lony commit a crime by possessing a firearm outsid e their homes more than five years after release from confinement).8 Of course, if the current case had gon e to trial, it wo uldn’t have been enough for the government to prove know ledge of a felony conviction; the government would also have needed to prove knowle dge that the conviction entailed “a crime punishable by impr isonment for a term exceeding one year.” 18 U.S.C. § 922 (g)(1). But two pi eces of evidence suggest that Mr. Tignor had known that the Te xas felony was punishable by more than a year in prison. First, when Mr. Tignor’s probation was revoked, he wa s sentenced to seven years’ imprisonment. For this sentence, he served roughly two years in prison. Mr. Tignor pres umably wouldn’t forget that he’d spent well over a year in prison after obtaining the conviction. Second, when Mr. Tignor pleaded guilty to aggravated assault, Texas law required the state cour t to inform him of the possible sentencing range.
See Tex. Code Crim. Proc. Ann. art. 26 .13(a)(1) (stating that “[p]rior to accepting a plea of guilty . . . , the court shall ad monish the defendant of” “the range of the punishmen t attached to the offens e”). That range was 2 to 20 years’ imprisonment. See Tex. Penal Code §§ 22.02(a)(1) and (b), 12.33(a). So Mr. Tignor li kely knew that aggravated assault was punishable by more than one year in prison. See United States v. Burghardt , 939 F.3d 397, 404 (1st Cir. 2019) (no ting that when a state’ s law “requires a judge to make sure that a de fendant knows the maximum possible sentence when entering a guilty plea,” it was “virtua lly certain” that he was so informed).9 For both reasons, Mr. Ti gnor faces an “uphill batt le” to show that the error affected his substantial rights: [A]ny § 922(g) defendant who served more than a year in prison on a single count of c onviction will face an uphill battle to show that a Rehaif error in a guilty plea af fected his substantial rights—at least on a s ilent record. [The Defe ndant] faces an even steeper climb beca use his record is not truly silent, and the little evidence available furt her supports the conclu sion that he would have decided to plead guilty even if he had been informed of the government’s burd en of proof. United States v. Williams , 946 F.3d 968 , 974 (7th Cir. 2020) (citing United
States v. Vonn , 535 U.S. 55, 74 (2002)). Mr. Tignor points out that he obtained the seve n-year sentence only after the state court revoked his proba tion. But Mr. Tignor didn’t just get his probation revoked; he also spent roughly two ye ars in prison. Because he actually served roughly two years in prison, he knew that the prior conviction ultimately led to a prison te rm of over a year. See id. at 973 (stating that a defendan t who served more than a year in prison on a conviction “cannot plausi bly argue that he did not know his conviction had a maximum punishment exceeding a year”); see also Trujillo , 960 F.3d at 1208 (concluding that th e defendant could not show a reasonable probability that, if he ha d been advised of the gov ernment’s need to prove knowledge of his prohibit ed status, he would not have pleaded guilty because he had “served a total of fo ur years in pris on for six felony offenses”). We thus conclude that Mr. Tignor lacked a plausible argument10 that he hadn’t known that his prior conviction was punishable by more than a year in prison. 2. Restoration of civil rights after a conviction Mr. Tignor points out that defendan ts can possess firearms after obtaining restoration of their civil ri ghts. 18 U.S.C. § 921(a)(20). Relying on this provision, Mr. Ti gnor argues that he could have defended based on a belief that his civil righ ts had been restored. In support, Mr. Tignor cites

 the Texas law, which permits convicted fe lons to possess a firearm at their own homes more than five years after release (Tex. Penal Code § 46.04(a)(1)–(2)),

 a Texas election law, which defines a “qualified voter” to include convicted felons who ha ve “fully discharged” their sentences (Tex. Elec. Code § 11.002), and

 his statement to the arresting officers that he was armed. We have not yet decided whet her the governmen t must prove knowledge that the defendant hadn’t ob tained restoration of his civil rights. But even if the government ha d this burden, Mr. Tignor’s arguments would fail for two reasons. First, Texas law didn’t apply. Th e crime was federal, and Mr. Tignor possessed the firearm after he’d alread y moved from Texa s to Colorado. Second, Mr. Tignor presumably knew that some of his civil rights had not been restored. In United States v. Flower , 29 F.3d 530 (10th Cir. 1994), we considered whether a defendant had ob tained restoration of his civil rights. The defendant had a prev ious Utah felony conviction, which11 prevented him from serving on a jury. Id. at 536. Because of this one unavailable right, he hadn’t had his civil rights restored. Id. So defendants obtain restoration of th eir civil rights only if they have reacquired all of their civil rights. Mr. Tignor couldn’t plau sibly assert a belief th at all of his civil rights had been restored. Indeed, he relies on a law th at prevented him from taking the firearm a nywhere outside his home. See Tex. Penal Code § 46.04(a)(1)–(2). So Mr. Tignor presumably knew that at least some of his civil rights hadn’t been restored.
* * * For these reasons, we conclude that Mr. Tignor failed to show a reasonable probabi lity that he would have plea ded not guilty if he’d known of the newly recognized element. 2 Mr. Tignor thus failed to show a reasonable probabi lity that he would have plea ded not guilty in the absence of the error. So we affirm his conviction.

2 The government makes three add itional arguments : (1) Mr. Tignor obtained a three-level se ntence reduction for accepting responsibility when he pleaded guilty, (2) the evidence of guilt was overwhel ming, and (3) the underlying facts of the prior conviction would have been admissible at trial to show knowledge that the crime wa s punishable by more than one year. We need not address th ese additional arguments.