United States Court of Appeals For the First Circuit

No. 18-2146

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS J. GUZMÁN-MERCED,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta, Circuit Judge, and Casper,* District Judge.

Vivian Shevitz for appellant. David Christian Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief, for appellee.

December 22, 2020

* Of the District of Massachusetts, sitting by designation. KAYATTA, Circuit Judge.

(g)(1) makes it

a crime for a convicted felon to possess a firearm. In Rehaif v.

United States,

(2019), the United States

Supreme Court held that a conviction for that crime requires proof

beyond a reasonable doubt that when the defendant possessed the

gun, he knew he was a felon -- i.e., he knew he had previously

been convicted of an offense punishable by more than a year in

prison. Last year, we explained how to apply Rehaif to a post-

conviction appeal by a defendant who pled guilty to unlawfully

possessing a firearm under section 922(g)(1) without having been

informed of this requirement. United States v. Burghardt,

, 403–06 (1st Cir. 2019). On plain error review, we

rejected that defendant's appeal. We found that there was no

"reasonable probability" that that defendant would have proceeded

to trial had he been told by the district court that the government

need prove that he knew when he possessed the gun that the crime

of which he had previously been convicted was punishable by more

than a year in prison.

at 405–06. In this case, we apply

that same test to materially different facts, finding that there

is a reasonable probability that Carlos J. Guzmán-Merced would not

have pled guilty had he been advised of this essential element of

the government's burden of proof. Our reasoning follows.

- 2 - I.

Guzmán fared poorly as a child in school: He was

diagnosed with learning disabilities early on, and he failed

seventh grade twice before dropping out of school altogether. By

age sixteen, he had found his way into the juvenile justice system.

In 2012, at age seventeen, Guzmán was charged as an adult with one

count of using violence against a public authority and two counts

of carrying and using a firearm without a license, all felonies

punishable by more than one year in prison under Puerto Rico law.

In 2013, he was convicted of all three counts and sentenced to

exactly one year of imprisonment on each, but he served no time in

prison because his sentence was suspended to a term of probation.

That brings us to the conviction giving rise to this

appeal. In 2017, at age twenty-two, Guzmán was caught engaging in

a shoot-out at a barber shop. He pled guilty in March 2018 to one

count of violating section 922(g)(1). Both parties agree that,

without the benefit of the June 2019 Rehaif decision, the district

court did not advise Guzmán that the government would need to prove

beyond a reasonable doubt that he knew the facts that made it

unlawful for him to possess a gun. Both parties also agree that

Guzmán made no relevant objection to the adequacy of his Rule 11

colloquy before the district court.

- 3 - II.

As in Burghardt, Guzmán's guilty plea waived his

challenge to the sufficiency of the indictment, and we find no

compelling reason to excuse that waiver. See

.

With respect to Guzmán's challenge to the plea itself, plain error

review applies given the absence of any objection below. See

at 402–03. We now know, with hindsight, that the district court's

failure to advise Guzmán of Rehaif's knowledge requirement was

clear error. So we turn first to the question of prejudice, which

depends on whether there is a reasonable probability that Guzmán

would not have pled guilty had he been informed in accordance with

Rehaif. See

.

In Burghardt we found no such probability for two basic

reasons. First, the record "reveal[ed] no reason to think that

the government would have had any difficulty at all in offering

overwhelming proof that Burghardt knew that he had previously been

convicted of offenses punishable by more than a year in prison."

. Second, pleading guilty garnered Burghardt a "three-

level reduction under the Guidelines for his acceptance of

responsibility."

.

The overwhelming proof of the requisite knowledge in

Burghardt included the finding in the presentence report that

Burghardt had been sentenced to 2-10 years on two prior offenses,

7.5-15 years on another, and 2-5 years on a fourth.

.

- 4 - There was no reason to doubt the accuracy of this report. See

Nor was there reason to doubt that a person actually sentenced to

several years in prison knew that his crime was punishable by more

than a year in prison. See

Here, too, the record is clear that Guzmán was convicted

of three offenses that were punishable by more than one year. And,

as in Burghardt, there is no reason to suspect that the sentencing

court failed to explain the maximum penalties available. See

But Guzmán did not serve even a day in prison for his prior

offenses, and the suspended sentence he was given did not exceed

one year for any of the three felony counts he was convicted of.

See Rehaif,

(recognizing that "a person who was

convicted of a prior crime but sentenced only to probation" might

not know that his crime was punishable by more than one year in

prison); United States v. Bryant,

(2d Cir. 2020)

(indicating that a defendant's conviction may be vacated under

Rehaif if he was not sentenced to more than one year in prison on

the prior felony). Moreover, Guzmán was only eighteen years old

when he was convicted and sentenced for his prior offenses, and he

has a limited education and diagnosed learning disabilities.

Finally, four years passed between the date Guzmán was convicted

of his prior offenses and the date he allegedly violated

section 922(g)(1). All in all, one can see how a person in his

shoes could plausibly think that he had a decent shot of convincing

- 5 - at least one juror to reasonably doubt whether he knew in 2017

that his prior offenses were punishable by more than a year in

prison.

That still leaves the opportunity cost of foregoing the

three-level reduction for acceptance of responsibility. As we

observed in Burghardt, "[t]he benefit received . . . from pleading

is often a factor in our analysis of the likelihood that a

defendant might have decided not to plead guilty."

. The three-level reduction Guzmán received reduced his

Guidelines sentencing range from 57–71 months to 41–51 months. By

contrast, a successful defense and acquittal on the section

922(g)(1) charge -- the sole count in the indictment -- would have

resulted in no sentence at all. So, given the circumstances of

his prior convictions, it is easy to see how Guzmán might have

thought the risk of a longer sentence would have been worth the

potential gain of an acquittal.

The decision to plead guilty is supposed to be voluntary

and informed. See United States v. Figueroa-Ocasio,

(1st Cir. 2015). And it is the defendant's right, once so

informed, to make the decision. On this record, with at least a

plausible defense for trial, there is a reasonable probability

that Guzmán would not have pled guilty had he been told what the

government would need to prove in order to convict him at trial.

- 6 - One question remains under our review for plain error:

Does the error "seriously impugn[] the fairness, integrity or

public reputation of the proceeding"? Burghardt,

(quoting United States v. Correa-Osorio,

, 17–18 (1st

Cir. 2015)). We are confident that the answer is "yes." The

district court's failure to explain the mens rea necessary to

support a conviction under section 922(g)(1) during the plea

colloquy calls into question whether Guzmán fully understood the

nature of the charges against him, which is necessary for a plea

to be knowing and voluntary. See Figueroa-Ocasio,

. And, when combined with the sparseness of the evidence

offered on appeal by the government with respect to Guzmán's

knowledge of his felon status, it creates a risk that Guzmán was

actually innocent of the charge against him and was convicted only

because of a misunderstanding of the applicable law. See United

States v. Gandia-Maysonet,

(1st Cir. 2000).

III.

For the foregoing reasons, we vacate Guzmán's guilty

plea, conviction, and sentence and remand for further proceedings

in accord with this opinion.1

1 Because the sentence is vacated, we need not address Guzmán's claim that it was procedurally and substantively unreasonable.

- 7 -