PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

SCOTT RAYMOND TIGNOR, 

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

Defendant-Appellant. 

Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United 

States Attorney, with him on the brief), Denver, Colorado, for the PlaintiffAppellee. 

_________________________________ 

Before LUCERO, KELLY, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

 This appeal involves a guilty plea for possessing a firearm after a 

felony conviction. 18 U.S.C. § 922(g)(1). When defendant Mr. Scott Tignor 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 1, 2020

Christopher M. Wolpert 

Clerk of Court
2 

pleaded guilty, our case law said that someone would incur guilt by 

knowingly possessing a firearm after obtaining a felony conviction. United 

States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). Under this case 

law, defendants would remain guilty even if they hadn’t known that their 

prior convictions involved felonies. United States v. Games-Perez, 667 

F.3d 1136, 1140–42 (10th Cir. 2012). 

But soon after Mr. Tignor pleaded guilty, the case law changed when 

the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019). 

There the Supreme Court held that the government needed to prove that the 

defendant had known that his status prohibited possession of a firearm. 139 

S. Ct. at 2200. Given the holding in Rehaif, the government needed to 

prove that Mr. Tignor had known that his prior conviction was punishable 

by more than a year in prison. United States v. Trujillo, 960 F.3d 1196, 

1200–01 (10th Cir. 2020). 

Invoking Rehaif, Mr. Tignor urges vacatur of his guilty plea because 

he wasn’t told about the newly recognized element. For this issue, the 

parties agree that the plain-error standard applies. Under this standard, we 

consider whether Mr. Tignor showed a reasonable probability that he 

would not have pleaded guilty if he’d known that the government needed to 

prove knowledge of his prohibited status. Id. at 1207–08. We answer “no” 

because Mr. Tignor lacked a plausible defense. We thus affirm his 

conviction. 
3 

I. Mr. Tignor’s prior conviction was punishable by over a year in 

prison. 

In 2002, Mr. Tignor was convicted in Texas of aggravated assault 

causing serious bodily injury. Under Texas law, aggravated assault 

constituted a second-degree felony punishable by 2 to 20 years’ 

imprisonment. See Tex. Penal Code §§ 22.02(a)(1), (b), 12.33(a). 

For the conviction on aggravated assault, Mr. Tignor was sentenced 

to 10 years of shock probation.1

 But the court later revoked probation and 

imposed a prison term of 7 years. Mr. Tignor served about 2 years of that 

sentence and was released about 13 years ago. After obtaining release, he 

moved to Colorado. 

While living in Colorado, Mr. Tignor asked for someone in the 

Sheriff’s Department to come to his house to investigate a theft. 

Unbeknownst to Mr. Tignor, the officers had a warrant for his arrest. So 

they came to his house prepared to arrest him. Unaware of the warrant, Mr. 

Tignor announced that he had a firearm. The officers retrieved the firearm, 

which led to a federal charge of unlawfully possessing a firearm after a 

felony conviction. See 18 U.S.C. § 922(g)(1). The charge culminated in a 

1

 At that time, Texas used the term “shock probation” to refer to a term 

of probation after the defendant had already spent time in confinement. 

State v. Garza, 442 S.W.3d 585, 587–88 (Tex. App. 2014). 
4 

guilty plea. Afterward, Mr. Tignor said that he had known about a Texas 

law that he thought would allow him to possess a firearm at his home. 

II. Mr. Tignor’s forfeiture of his appellate argument triggers plainerror review. 

Mr. Tignor did not raise his appellate argument in district court, so 

we apply the plain-error standard. United States v. Trujillo, 960 F.3d 1196, 

1201 (10th Cir. 2020). Under this standard, Mr. Tignor must show an 

obvious error that affects his substantial rights and “seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting United States v. Samora, 954 F.3d 1286, 1293 (10th Cir. 2020)). 

III. The district court committed an obvious error. 

The government concedes the existence of an obvious error, and we 

accept this concession. The Federal Rules of Criminal Procedure require 

district courts to inform a defendant of the nature of the charge before 

accepting a guilty plea. Fed. R. Crim. P. 11(b)(1)(G). Given this 

requirement, the court must inform defendants of the elements before 

accepting their guilty pleas. Hicks v. Franklin, 546 F.3d 1279, 1284 (10th 

Cir. 2008). 

Despite this requirement, the district court accepted Mr. Tignor’s 

guilty plea without telling him that the government needed to prove 

knowledge of his prohibited status. The omission is understandable, but it 

is still an obvious error under current law. See Trujillo, 960 F.3d at 1201 
5 

(“While the district court correctly applied the law as it existed at the time, 

the court’s failure to inform Defendant of the knowledge-of-status element 

constitutes error that is plain on appeal.”). 

IV. Mr. Tignor hasn’t proven a reasonable probability that he would 

have pleaded not guilty without the error. 

Even though an obvious error took place, Mr. Tignor needed to show 

that the error had affected his substantial rights. Id. The required showing 

entails a reasonable probability that, without the error, Mr. Tignor would 

have pleaded not guilty. Id. at 1208. 

A. Mr. Tignor did not waive this argument. 

The government argues that Mr. Tignor waived this argument by 

failing to address it in his opening brief. There he argued that the district 

court had committed a structural error, requiring reversal of the conviction 

even if he couldn’t show a reasonable probability of a different result. At 

the time, we hadn’t decided whether to characterize this error as a 

structural error and a circuit split existed elsewhere. Compare United 

States v. Williams, 946 F.3d 968, 972–73 (7th Cir. 2020) (concluding that 

this error was not structural), with United States v. Gary, ___ F.3d ___, 2020 

WL 1443528, at *4 (4th Cir. Mar. 25, 2020) (concluding that this error was 

structural). Given this circuit split, the government argued that we should 

join those courts declining to characterize this error as structural. After the 

briefing was complete, we decided the issue, agreeing with the government 
6 

that the error was not structural. United States v. Trujillo, 960 F.3d 1196, 

1207–08 (10th Cir. 2020). But the government then argued that Mr. Tignor 

had waived this argument by failing to address it in his opening brief. We 

disagree. 

When briefing was complete, we hadn’t yet decided whether this 

error was structural. Given the circuit split, Mr. Tignor could reasonably 

urge the existence of a structural error and he did. Under these 

circumstances, Mr. Tignor reasonably replied to the government by arguing 

that he’d satisfied the standard embraced by the government. See United 

States v. Zander, 794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (allowing the 

appellant to urge plain error in the reply brief after urging in the opening 

brief that the error had been preserved). We thus address the argument that 

Mr. Tignor newly presented in his reply brief. 

B. Mr. Tignor has not shown a reasonable probability that he 

would have pleaded not guilty without the error. 

Mr. Tignor urges a reasonable probability that he would have pleaded 

differently if he had known that the government needed to prove 

knowledge of his prohibited status. According to Mr. Tignor, he would 

have pleaded not guilty because he 

 had not known that his Texas offense was punishable by more 

than one year imprisonment and 

 had believed that the government restored all of his civil rights. 
7 

See 18 U.S.C. § 921(a)(20) (defining a “crime punishable by imprisonment 

for a term exceeding one year” to exclude “[a]ny conviction . . . for which 

a person . . . has had civil rights restored”). 

1. A crime punishable by more than one year in prison 

Mr. Tignor argues that the government couldn’t prove knowledge that 

his prior offense was punishable by over a year in prison. In support, he 

argues that 

 he may have forgotten the details of his Texas conviction 

because it had been imposed roughly sixteen years earlier and 

 the original sentence entailed ten years of shock probation (not 

imprisonment) and he served two years in prison only after his 

probation had been revoked. 

 

Given these facts, Mr. Tignor argues that he could have plausibly defended 

on the current charge by denying knowledge that his Texas crime had 

carried a potential prison sentence exceeding a year. We disagree. 

Even if Mr. Tignor had forgotten some of the details, he knew that he 

was a convicted felon. For example, Mr. Tignor argued at sentencing that 

he thought that a Texas law allowed him to possess a firearm. But that law 

applied only to convicted felons. See Tex. Penal Code § 46.04(a)(1)–(2) 

(stating that individuals convicted of a felony commit a crime by 

possessing a firearm outside their homes more than five years after release 

from confinement). 
8 

Of course, if the current case had gone to trial, it wouldn’t have been 

enough for the government to prove knowledge of a felony conviction; the 

government would also have needed to prove knowledge that the 

conviction entailed “a crime punishable by imprisonment for a term 

exceeding one year.” 18 U.S.C. § 922(g)(1). But two pieces of evidence 

suggest that Mr. Tignor had known that the Texas felony was punishable 

by more than a year in prison. 

First, when Mr. Tignor’s probation was revoked, he was sentenced to 

seven years’ imprisonment. For this sentence, he served roughly two years 

in prison. Mr. Tignor presumably wouldn’t forget that he’d spent well over 

a year in prison after obtaining the conviction. 

Second, when Mr. Tignor pleaded guilty to aggravated assault, Texas 

law required the state court to inform him of the possible sentencing range. 

See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (stating that “[p]rior to 

accepting a plea of guilty . . . , the court shall admonish the defendant of” 

“the range of the punishment attached to the offense”). That range was 2 to 

20 years’ imprisonment. See Tex. Penal Code §§ 22.02(a)(1) and (b), 

12.33(a). So Mr. Tignor likely knew that aggravated assault was punishable 

by more than one year in prison. See United States v. Burghardt, 939 F.3d 

397, 404 (1st Cir. 2019) (noting that when a state’s law “requires a judge 

to make sure that a defendant knows the maximum possible sentence when 

entering a guilty plea,” it was “virtually certain” that he was so informed). 
9 

For both reasons, Mr. Tignor faces an “uphill battle” to show that the 

error affected his substantial rights: 

[A]ny § 922(g) defendant who served more than a year in prison 

on a single count of conviction will face an uphill battle to show 

that a Rehaif error in a guilty plea affected his substantial 

rights—at least on a silent record. [The Defendant] faces an even 

steeper climb because his record is not truly silent, and the little 

evidence available further supports the conclusion that he would 

have decided to plead guilty even if he had been informed of the 

government’s burden of proof. 

United States v. Williams, 946 F.3d 968, 974 (7th Cir. 2020) (citing United 

States v. Vonn, 535 U.S. 55, 74 (2002)). 

Mr. Tignor points out that he obtained the seven-year sentence only 

after the state court revoked his probation. But Mr. Tignor didn’t just get 

his probation revoked; he also spent roughly two years in prison. Because 

he actually served roughly two years in prison, he knew that the prior 

conviction ultimately led to a prison term of over a year. See id. at 973 

(stating that a defendant who served more than a year in prison on a 

conviction “cannot plausibly argue that he did not know his conviction had 

a maximum punishment exceeding a year”); see also Trujillo, 960 F.3d at 

1208 (concluding that the defendant could not show a reasonable 

probability that, if he had been advised of the government’s need to prove 

knowledge of his prohibited status, he would not have pleaded guilty 

because he had “served a total of four years in prison for six felony 

offenses”). We thus conclude that Mr. Tignor lacked a plausible argument 
10 

that he hadn’t known that his prior conviction was punishable by more than 

a year in prison. 

2. Restoration of civil rights after a conviction 

Mr. Tignor points out that defendants can possess firearms after 

obtaining restoration of their civil rights. 18 U.S.C. § 921(a)(20). Relying 

on this provision, Mr. Tignor argues that he could have defended based on 

a belief that his civil rights had been restored. In support, Mr. Tignor cites 

 the Texas law, which permits convicted felons to possess a 

firearm at their own homes more than five years after release 

(Tex. Penal Code § 46.04(a)(1)–(2)), 

 a Texas election law, which defines a “qualified voter” to 

include convicted felons who have “fully discharged” their 

sentences (Tex. Elec. Code § 11.002), and 

 his statement to the arresting officers that he was armed. 

We have not yet decided whether the government must prove 

knowledge that the defendant hadn’t obtained restoration of his civil 

rights. But even if the government had this burden, Mr. Tignor’s arguments 

would fail for two reasons. 

First, Texas law didn’t apply. The crime was federal, and Mr. Tignor 

possessed the firearm after he’d already moved from Texas to Colorado. 

Second, Mr. Tignor presumably knew that some of his civil rights 

had not been restored. In United States v. Flower, 29 F.3d 530 (10th Cir. 

1994), we considered whether a defendant had obtained restoration of his 

civil rights. The defendant had a previous Utah felony conviction, which 
11 

prevented him from serving on a jury. Id. at 536. Because of this one 

unavailable right, he hadn’t had his civil rights restored. Id. So defendants 

obtain restoration of their civil rights only if they have reacquired all of 

their civil rights. 

 Mr. Tignor couldn’t plausibly assert a belief that all of his civil 

rights had been restored. Indeed, he relies on a law that prevented him 

from taking the firearm anywhere outside his home. See Tex. Penal Code 

§ 46.04(a)(1)–(2). So Mr. Tignor presumably knew that at least some of his 

civil rights hadn’t been restored. 

* * * 

For these reasons, we conclude that Mr. Tignor failed to show a 

reasonable probability that he would have pleaded not guilty if he’d known 

of the newly recognized element.2

 Mr. Tignor thus failed to show a 

reasonable probability that he would have pleaded not guilty in the absence 

of the error. So we affirm his conviction. 

2

 The government makes three additional arguments: (1) Mr. Tignor 

obtained a three-level sentence reduction for accepting responsibility when 

he pleaded guilty, (2) the evidence of guilt was overwhelming, and (3) the 

underlying facts of the prior conviction would have been admissible at trial 

to show knowledge that the crime was punishable by more than one year. 

We need not address these additional arguments.