United States v. Dace

D.C. No. 1:16-CR-00383-RBJ-1 (D. Colo.)

Before TYMKOVICH, Chief Judge, KELLY, and HOLMES, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Jerome A. Holmes, Circuit Judge

Daniel Ray Dace pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Two years later, the Supreme Court held in Rehaif v. United States, 139 S.Ct. 2191, 2199-2200 (2019), that an element of a § 922(g) offense requires that the defendant knew his prohibited status-here, that Mr. Dace was a felon-at the time he possessed the firearm. Based on Rehaif, Mr. Dace moved to vacate his conviction and sentence under 28 U.S.C. § 2255,

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claiming his guilty plea was invalid because he was not advised that knowledge of his status is an element of the offense. The district court initially granted the motion but then denied it on reconsideration, ruling the claim was procedurally defaulted. Nonetheless, the court granted a certificate of appealability (COA), and Mr. Dace appealed. Exercising jurisdiction under 28 U.S.C §§ 1291 and 2255(d), we affirm.

I

Mr. Dace was arrested on an outstanding warrant during a traffic stop. He was a passenger in the vehicle, had over $1, 800 on his person, and initially gave police a fictitious name. A consensual search of the vehicle turned up two firearms, a digital scale, hundreds of plastic baggies, and 331 grams of methamphetamine. Mr. Dace later called his mother from jail and during a recorded conversation told her to "go get my guns," which he intended to sell. R., vol. 1 at 17 (internal quotation marks omitted). Based on that call, police obtained a warrant for his mother's home, where they recovered seven additional firearms, all of which Mr. Dace admitted were his. He also admitted that the drugs and guns recovered during the traffic stop were his and that he sold the drugs for "pure profit." Id. (internal quotation marks omitted). At the time of his arrest, Mr. Dace had been previously convicted of a felony for which he received a deferred sentence and served no prison time.

Based on these circumstances, Mr. Dace pleaded guilty to two counts of possession of a firearm by a previously convicted felon in violation of §§ 922(g)(1) and 924(a)(2), one count of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), and one count of

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possession of a firearm during and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). The plea agreement stated the elements of a § 922(g)(1) violation as follows:

First: the Defendant knowingly possessed a firearm

Second: the Defendant was convicted of a felony that is, a crime punishable by imprisonment for a term exceeding one year, before he possessed the firearm; and

Third: before the Defendant possessed the firearm the firearm had moved at some time from one state to another

R., vol. 1 at 12-13.

At the change of plea hearing, the district court advised Mr. Dace that the elements of § 922(g)(1) required: "first . . . that you knowingly possessed a firearm; second, that you were convicted of a felony before you possessed the firearm; and, third, that th[e] firearm had moved at some point in interstate commerce." R., vol. 3 at 9. Mr. Dace did not object to the advisement, and he admitted he was guilty of a crime with these elements. The district court accepted his guilty plea and sentenced him to 108 months in prison on the trafficking count, concurrent with 108 months each on the two § 922(g) counts, and consecutive to a mandatory minimum term of 60 months on the § 924(c) count, for an aggregate sentence of 168 months in prison. Mr. Dace unsuccessfully challenged the substantive reasonableness of his sentence on direct appeal, but he did not challenge the validity of his plea. See United States v. Dace, 720 Fed.Appx. 961, 962, 964 (10th Cir. 2018).

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When the district court advised Mr. Dace on the elements of a § 922(g) violation, the law did not require the government to prove he knew his status as a felon to obtain a conviction. See, e.g., United States v. Silva, 889 F.3d 704, 711 (10th Cir. 2018). Two years later, however, the Supreme Court held in Rehaif that a defendant's knowledge of his prohibited status is an element of § 922(g). 139 S.Ct. 2199-2200. Thus, based on Rehaif, Mr. Dace filed his § 2255 motion, claiming his guilty plea should be vacated because the district court failed to accurately advise him on the nature of the offense.^[1]

The district court initially granted the motion but then denied relief on the government's request for reconsideration. The court determined that Mr. Dace's Rehaif claim was procedurally defaulted because he failed to raise it on direct appeal, and although he had cause for failing to raise the claim, he could not show prejudice to excuse the default. The court acknowledged that his previous felony conviction resulted in a deferred sentence and no prison time, but the court also recognized that he did not dispute that he was informed under Colorado Rule of Criminal Procedure 11(b)(4) of the potential penalty he faced when he pleaded guilty to his prior felony.^[2]Given this advisement under Colorado law, the court determined the government would have faced only "slight evidentiary difficulties" proving the Rehaif element.

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R., vol. 1 at 90. Moreover, the court noted that Mr. Dace agreed that his "primary concern" in negotiating his plea agreement "was limiting his eventual sentence, which was driven entirely by the drug charge and the § 924(c) charge." Id. (internal quotation marks omitted). Indeed, "[he] admit[ted] that the § 922(g) convictions did not affect the sentencing range," and thus the court was unconvinced that "he would have fought including those charges in his plea agreement." Id. (brackets and internal quotation marks omitted). Consequently, the court concluded that Mr. Dace failed to show a reasonable probability that he would have gone to trial on the § 922(g) charges but for the Rehaif error and, therefore, he could not establish prejudice to excuse the procedural default. Nonetheless, the court issued a COA, and Mr. Dace appealed.

II

"In a § 2255 appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (internal quotation marks omitted). "A plea of guilty is constitutionally valid only to the extent it is voluntary and intelligent." Bousley v. United States, 523 U.S. 614, 618 (1998) (internal quotation marks omitted). "[A] plea does not qualify as intelligent unless a criminal defendant first receives real notice of the true nature of the charge against him." Id. (internal quotation marks omitted). Nonetheless, the "intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Id. at 621. Failure to raise a claim on direct appeal results in procedural default, which precludes relief on habeas

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review unless "the defendant can first demonstrate [both] cause and actual prejudice." Id. at 621-22 (internal quotation marks omitted).^[3]

We need not decide whether Mr. Dace can show cause because he cannot establish he was prejudiced by the district court's failure to advise him under Rehaif. See United States v. Frady, 456 U.S. 152, 168 (1982) (declining to consider cause because petitioner could not show prejudice). Prejudice requires "an error of constitutional dimensions that worked to his actual and substantial disadvantage." United States v. Snyder, 871 F.3d 1122, 1128 (10th Cir. 2017) (internal quotation marks omitted). The mere "possibility of prejudice" is not enough to excuse a procedural default. Frady, 456 U.S. at 170 (italics omitted). A movant must show "there is a reasonable probability that, but for [the error], he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). A movant may establish prejudice with "evidence tending to show that had he been advised [properly], he would have elected to proceed to trial." United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004).

Mr. Dace fails to meet his burden. See Frady, 456 U.S. at 170 (recognizing it is the movant's burden to show prejudice). He does not contend that he would have presented evidence that he did not know he was a felon. See Greer v. United States, 141 S.Ct. 2090, 2097 (2021) (holding that on plain-error review, if a defendant does not argue that he would have presented evidence that he did not know he was a felon,

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"the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a 'reasonable probability' that the outcome would have been different absent the Rehaif error"). Instead, Mr. Dace first contends that we may infer he would not have pleaded guilty but for the Rehaif error because the government's evidence was "extremely weak." Aplt. Br. at 11. He points out that he received only a deferred sentence for his prior felony and never went to jail, so the government might have had difficulty proving he knew he had been previously convicted of a crime punishable by more than a year in prison. There are at least two problems with this argument.

First, by relying on what Mr. Dace says is the government's "extremely weak" evidence, see id., Mr. Dace attempts to improperly shift the burden to the government to show he would not have gone to trial but for the Rehaif error. But on collateral review, it is his burden-not the government's-to show a reasonable probability that he would have gone to trial but for the Rehaif error. See Hill...