United States Court of Appeals
                     For the First Circuit


No. 21-1713

                        MARLON GUARDADO,

                     Petitioner, Appellant,

                               v.

                    UNITED STATES OF AMERICA,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Timothy S. Hillman, U.S. District Judge]


                             Before

                       Barron, Chief Judge,
                Selya and Howard, Circuit Judges.


     Mark W. Shea, with whom Jean C. LaRocque and Shea & LaRocque,
LLP were on brief, for petitioner.
     Randall E. Kromm, Assistant United States Attorney, with whom
Rachael S. Rollins, United States Attorney, was on brief, for
respondent.


                         August 7, 2023
            HOWARD, Circuit Judge.         Marlon Guardado appeals from an

order of the district court denying his motion to vacate, set

aside, or correct his sentence, filed pursuant to 

.

On October 30, 2013, he pleaded guilty to seven counts of being a

felon in possession of ammunition and/or firearms in violation of

(g)(1).       Following his guilty plea, the Supreme

Court held in Rehaif v. United States that to convict a defendant

of violating § 922(g), the government must prove that he knew that

he had a relevant prohibited status (here, that he knew that he

was a convicted felon) when committing the underlying offense or

offenses.    

 (2019).             Guardado then filed a

§ 2255 petition    arguing in relevant part that               he would have

proceeded to trial had he been told by the district court of that

mens rea requirement.        The district court denied his petition.

After careful consideration, we affirm.

                                      I.

            We briefly recite the factual and procedural background

of this appeal.    As further detailed below, Guardado was convicted

of numerous state offenses in Massachusetts and New York between

2003 and 2010.     In 2012, he was indicted on -- and eventually

pleaded   guilty   to   --   seven    federal    felon    in   possession   of

ammunition   and/or     firearms     charges.     

(g)(1).

Guardado was sentenced on May 12, 2014, to concurrent sentences of

96 months' imprisonment and 2 years of supervised release on each


                                     - 2 -
count.

              In 2019, the Supreme Court held that, to sustain a

conviction under § 922(g), the government must prove that "the

defendant knew he possessed a firearm and also that he knew he had

[a] relevant [prohibited] status when he possessed it."            Rehaif,

.       On June 22, 2020, Guardado moved to vacate

under    

   his    felon-in-possession   convictions,

arguing in relevant part that he would have proceeded to trial had

he been informed of that mens rea requirement at his plea colloquy.1

              A person is a convicted felon for purposes of § 922(g)(1)

if he or she "has been convicted in any court of[] a crime

punishable by imprisonment for a term exceeding one year."              

(g)(1).      Guardado committed the underlying § 922(g)(1)

offenses from May 2010 to February 2011.            As set forth in the

presentence investigation report ("PSR"), he had been convicted of

the following crimes that were punishable by more than one year

before that time:         2003 -- two counts of criminal sale of a

controlled substance (4th degree, unspecified degree) (sentenced



     1 Guardado does not appear to challenge on appeal the omission
of the mens rea requirement from the indictment itself; only the
district court's failure to inform him of that mens rea requirement
at his plea colloquy.    Moreover, and in any event, "[a] guilty
plea waives all non-jurisdictional challenges to an indictment[,]"
United States v. Burghardt, 

 (1st Cir. 2019), and
there is no reason to excuse the waiver in this case. On the other
hand, "[a] guilty plea does not waive all challenges to the plea
itself." 

 (emphasis added).


                                       - 3 -
to one year) (N.Y.); 2005 -- possession with intent to distribute

a Class A controlled substance (Mass.); 2007 -- assault with a

dangerous weapon (handgun) (Mass.); 2008 -- assault and battery

("A&B") (Mass.) (served six months); 2008 -- assault and battery

with a dangerous weapon ("ABDW") (bar stool) (Mass.) (served six

months); 2009 -- A&B (Mass.) (served 60 days); 2010 -- 2 counts

A&B (Mass.) (suspended sentence of 1 year, violated probation,

sentenced to 2.5 years in March 2012).          See also United States v.

Guardado, 

, 58 & n.6 (D. Mass. 2021) (district

court's summary).2

          As correctly summarized by the district court, Guardado

had never "served or [been] sentenced to serve more than one year

in prison for a single state offense before the underlying federal

offense[s]   (he   was   sentenced   to   2.5   years   for the   probation

violation one month after the charged firearms sales in this case

concluded in February 2011)."        

.      The district court

nevertheless denied Guardado's § 2255 petition, having found in

relevant part that Guardado failed to make the required showing

that the Rehaif error in his plea colloquy had "prejudiced him

under the First Circuit's plain error test." Id. at 60.                This

appeal followed.




     2  We have included the amount of time sentenced or served
for each offense where the PSR included that information.


                                 - 4 -
                                         II.

              We review the district court's legal conclusions denying

a § 2255 claim de novo, and its findings of fact for clear error.

Ellis v. United States, 

 (1st Cir. 2002).                     Where,

as here, the district court dismisses the petition "without holding

an evidentiary hearing, we take as true the sworn allegations of

fact set forth in the petition unless those allegations are merely

conclusory, contradicted by the record, or inherently incredible."

              Guardado claims error on the basis of the district

court's   failure      during     his   plea     colloquy    to    advise      him   of

§ 922(g)(1)'s        mens   rea   requirement.       He     did    not   raise    that

objection until he filed his § 2255 petition, which results in a

procedural default on collateral review unless he can demonstrate

cause   for    the    default     and   actual    prejudice       from   the   error.

See Bousley v. United States, 

 (1998).                          Here,

there is no dispute that there was cause for the default, because

Rehaif was decided after Guardado pleaded guilty, and that an error

occurred;     the    only    question    is     whether   that     error    actually

prejudiced him.

              To show actual prejudice in cases that result in a plea

rather than a trial, a petitioner "must show that there is a

reasonable probability that but for [the] errors, he would not

have pleaded guilty and would have insisted on going to trial."


                                        - 5 -
Hill v. Lockhart, 

 (1985).      Establishing prejudice

on plain error review on direct appeal is described in similar

terms as establishing actual prejudice for purposes of collateral

review; nevertheless, the latter showing is more demanding.          See

Ramirez-Burgos v. United States, 

, 32 & n.12 (1st Cir.

2002); United States v. Frady, 

 (1982).

         Following   Rehaif,    we   have   issued   several   decisions

involving direct appeals of defendants who alleged plain error

because they were not advised of the Rehaif requirement before

pleading guilty.   See, e.g., United States v. Guzmán-Merced, 

 (1st Cir. 2020); United States v. Burghardt, 

 (1st Cir. 2019).      Although Guardado makes his claim on

collateral review, those cases are nevertheless instructive.         In

such cases, we have found four basic principles important as to

whether a defendant had shown actual prejudice:       (1) the level of

proof that a defendant knew that he had previously been convicted

of offenses punishable by more than a year in prison, such as

whether he was sentenced to over a year's imprisonment for any of

the relevant previous offenses or whether he would have been

informed of the maximum possible sentence for such crimes; (2)

whether he would have lost any benefits in foregoing his guilty

plea; (3) the time between the previous offenses rendering him a

convicted felon and the § 922(g)(1) offense; and (4) his personal

profile, such as his    age, education, and background,          on the


                                - 6 -
understanding   that   those   factors       could   affect   a   defendant's

ability   to    understand     the     consequences     of    his    previous

convictions, even if they were explained to him.              See Burghardt,

; Guzmán-Merced, 

.

                                     III.

          Turning to Guardado's case, there is no dispute here

that he never served a sentence of imprisonment of over a year

(nor was he ever sentenced to serve such a term of imprisonment)

before the underlying federal offenses.               The government also

argues, and Guardado does not dispute, that he would have lost the

three-level sentencing reduction for acceptance of responsibility

by proceeding to trial.        Guardado nevertheless advances three

principal arguments on appeal: (1) that he was not informed that

his state convictions carried possible sentences of greater than

a year; (2) that aspects of the Massachusetts court and prison

systems further discussed below meant that he could not have

understood that he was a convicted felon; and (3) that his history

of mental illness and limited educational history curtailed his

ability to understand the implications of his state convictions.

We address each contention in turn.

                                      A.

          We start with whether Guardado was informed of the

maximum possible sentence attached to at least some of the relevant

Massachusetts crimes of which he was convicted.


                                     - 7 -
          Under    Massachusetts    Rule     of   Criminal   Procedure   12,

judges are required to advise defendants entering guilty pleas or

admissions   to   sufficient    facts   of   their   potential   sentencing

exposure to ensure that their pleas are knowing, intelligent, and

voluntary.   See Mass. R. Crim. P. 12(a)(3) & (c)(3).3              In the

§ 2255 proceedings below, the government asserted that Guardado

had pleaded guilty to "at least some, if not all" of the relevant

previous Massachusetts charges, and therefore would have been

advised that he could be sentenced to over a year's imprisonment

for those offenses.

          The government did not, however, present evidence of

that fact, nor specify the specific crimes to which he pleaded

guilty.   Nevertheless, Guardado did not contest in any manner the

government's assertion.        The district court thus concluded that

Guardado had pleaded guilty to at least "some of his [] prior

Massachusetts [] convictions, and therefore on several occasions

[] would have been informed by a judge in state court that the

offense he was pleading guilty to carr[ied] a maximum length of

more than one year."    Guardado, 552 F. Supp. 3d at 59.

          On appeal, the government contends that, although we may

rely on that uncontested assertion, we may also take judicial


    3   Because admitting to sufficient facts and pleading guilty
are treated the same for purposes of Rule 12, hereinafter we do
not distinguish between the two, and refer to them both as guilty
pleas.


                                   - 8 -
notice of state court records establishing that fact (that is,

that       Guardado   pleaded   guilty   to    several   of   the   relevant

Massachusetts crimes).

              As an initial matter, we agree that, even without taking

judicial notice of such records, we could rely on the district

court's finding that on several occasions between 2004 and 2010 -

- the earliest and latest dates of the relevant Massachusetts

guilty pleas -- Guardado was informed that an offense to which he

was pleading guilty carried a possible sentence of more than a

year's imprisonment.       Specifically, Guardado did not in any manner

contest that assertion by the government in the § 2255 proceedings

below (even if simply to say that the government should be required

to introduce evidence of it) and did not in any way address the

district court's finding to that effect in his opening brief on

appeal.       Jackson v. Marshall, 

, 8 n.4 (1st Cir. 2017)

(applying appellate waiver to an appeal from a petition for a writ

of habeas under 

).4           Indeed, as the Supreme Court

has noted in the context of plain error review:



       4At oral argument, Guardado's counsel for the first time
argued that it is possible that the Massachusetts judges in
Guardado's cases did not comply with the Rule 12 requirement. But
"except in extraordinary circumstances, arguments . . . raised for
the first time at oral argument are considered waived." United
States v. Pizarro-Berríos, 

 (1st Cir. 2006). There
are no such extraordinary circumstances here because, among other
reasons, Guardado's counsel did not proffer any evidence in support
of that assertion.


                                    - 9 -
           [T]here may be cases in which a defendant who
           is a felon can make an adequate showing on
           appeal that he would have presented evidence
           in the district court that he did not in fact
           know he was a felon when he possessed
           firearms. . . . But if a defendant does not
           make such an argument or representation on
           appeal, [we] 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.

Greer v. United States, 

 (2021).

           As to the state court records proving that fact, Guardado

contends in his reply brief that the government has waived its

right to introduce them       because in the proceedings below          it

"addressed solely what was in the presentence report," which did

not distinguish as to whether Guardado's previous convictions were

the result of guilty pleas or jury verdicts.       But we have generally

permitted the government to supplement the record on appeal with

state court records susceptible to judicial notice, such as where

the   government   has   sought   to   introduce   on   appeal   documents

underlying alleged predicate convictions that were missing from

the district court record to support sentencing enhancements under

the Armed Career Criminal Act.             See, e.g., United States v.

Farrell, 

 (1st Cir. 2012) (noting that although

the defendant did not contest consideration of the documents, he

also "conced[ed] at oral argument that had he objected below, the

evidence would likely have been submitted to the district court");


                                  - 10 -
United States v. Huntsberry, 

 (5th Cir. 2020)

(noting in the context of a Rehaif error asserted on direct appeal

that    it   was   appropriate   to    "judicially   notice   the   facts   of

Huntsberry's prior felony conviction").          And it would seem odd to

find that the government waived the right to supplement the record

where the defendant did not contest its assertion below, and the

defendant has the burden.

             Accordingly, we take judicial notice of the state court

docket entries submitted by the government.            Those records show

that Guardado pleaded guilty to four of the relevant offenses in

Massachusetts state court:       (1) possession of a Class A substance

with intent to distribute on June 2, 2005; (2) A&B on December 5,

2008; (3) ABDW on December 22, 2008; and (4) A&B on October 27,

2009.    Because Guardado has offered no reason to believe that the

Massachusetts state judges did not comply with Rule 12, he has not

shown that there would be a basis at a trial for even casting doubt

on the evidence that he had been advised on multiple occasions

that his crimes of conviction were punishable by more than a year's

imprisonment. See Burghardt, 

 (noting that although

records could in theory show that the defendant was not so advised,

the fact that he had not submitted any such records "cut[] against

him" because he had the burden of proof).            And we note that the

records for the December 5, 2008, plea include a waiver of rights

signed by Guardado on that same day attesting that he was "aware


                                      - 11 -
of the nature and range of the possible sentence(s)."

                                B.

          Guardado contends that, in spite of such evidence, we

should nevertheless find that he has met his burden of proof

because of certain features of the Massachusetts criminal justice

system.

          Specifically, in all of his relevant Massachusetts state

cases, Guardado was prosecuted in Massachusetts district courts.

Massachusetts law defines a felony as a crime that is punishable

by death or imprisonment in state prison, by contrast to a house

of corrections, 

, and a defendant may

not be sentenced to state prison time unless he is indicted by a

grand jury, Commonwealth v. Smith, 

 (2005).

Furthermore, only a superior court can impose a sentence involving

state prison time; district courts lack that authority.   See 

.   Thus, Guardado contends that he would

not have known that any of the crimes of which he was convicted

were felonies under state law (and that all of them were deemed

felonies under federal law) because any Rule 12 notice he received

in the Massachusetts district court would not have included a

discussion of a state prison sentence because he was prosecuted in

district court and therefore could not be sentenced to imprisonment

in a state prison.

          As a preliminary matter, Guardado has not explained


                              - 12 -
which if any of his crimes were misdemeanors under state law, and

we have not canvassed all of them.                Nevertheless, it appears to us

that at least A&B is, because the maximum sentence for it is 2.5

years in a house of corrections.                Mass. Gen. Laws ch. 265, § 13A.

There is an exception to § 922(g)(1) in 

(a)(20)(B)

for certain state misdemeanors.                 Specifically, "any State offense

classified by the laws of the State as a misdemeanor and punishable

by a term of imprisonment of two years or less" is not a "crime

punishable    by       imprisonment       for    a    term      exceeding    one   year."

§ 921(a)(20)(B)         (emphasis     added).             A&B   does   not    meet     that

exception;     thus,      it     is   a    federal        felony    for     purposes     of

§ 922(g)(1).

            But, more          generally,       Guardado's       argument misses the

point.   It does not matter whether it was explained to Guardado

that his crimes were felonies or misdemeanors under state law.                           At

issue is whether he knew that he was a convicted felon under

§ 922(g)(1) -- that is, whether he knew that he had been convicted

of crimes that were punishable by more than a year's imprisonment.

See United States v. Austin, 

 (1st Cir. 2021)

(explaining that proof of "subjective knowledge that he [was]

violating the law" is not required -- rather, what is required is

proof of "the defendant's knowledge that he had been previously

convicted    of    a    crime    punishable          by   imprisonment       for   a   term

exceeding one year" (internal quotation marks omitted) (citing


                                          - 13 -
Burghardt, 

)).         All of the crimes to which Guardado

pleaded guilty include a possible sentence of 2.5 years in a house

of   corrections.      See   Mass.    Gen.    Laws   ch.   94C,       § 32   (2005)

(possession   with    intent   to    distribute      a   Class    A    controlled

substance) (maximum sentence of imprisonment in state prison for

not more than 10 years or in a house of corrections for not more

than 2.5 years); Mass. Gen. Laws ch. 265, § 13A (2008) (A&B)

(maximum sentence of imprisonment in a house of corrections for

not more than 2.5 years); Mass. Gen. Laws ch. 265, § 15A (2008)

(ABDW) (maximum sentence of imprisonment in a house of corrections

for not more than 2.5 years or in state prison for not more than

10 years).     And under Massachusetts law, a defendant may be

sentenced for up to 2.5 years in a house of corrections in a

district court.      

; 

.       Thus, Guardado would have been advised that he

could be sentenced to 2.5 years in a house of corrections for his

crimes (even assuming he would not have been advised of possible

state prison sentences).

           For those reasons, we reject Guardado's argument that

the fact that he was prosecuted for his Massachusetts convictions

in   Massachusetts     district      court     establishes        a    reasonable

probability that he would have proceeded to trial had he been




                                     - 14 -
advised of § 922(g)'s mens rea requirement.5

                                C.

          Guardado further contends that his history of mental

illness affected his ability to understand the maximum sentences

attached to his relevant convictions, and that he has proved a

reasonable probability that he would not have pleaded guilty but

for the Rehaif error on that basis.

          The district court correctly characterized Guardado's

history of mental illness as "extensive and well-documented."

Guardado, 552 F. Supp. 3d at 59.     It is a staggering history.   It

appears that he first began mental health treatment shortly after

he was sexually abused at the age of 9; since then, he has been

hospitalized in state hospitals a total of eight times and he

reported that he has had a total of 11 suicide attempts.     He has

been diagnosed with Bipolar Disorder with Psychotic Features and

Antisocial Personality Disorder, among other conditions.

         In his briefs, Guardado argues that his mental illness

makes this case similar to that of Guzmán-Merced.    

.

We agree that Guardado's history is serious and deserves attention.


     5   We follow the parties in focusing only on Guardado's
relevant felony convictions under Massachusetts law. As noted, he
was also convicted of crimes punishable by more than a year's
imprisonment under New York law. But the record is silent as to
whether (1) the New York criminal system shares the same allegedly
confusing features as Massachusetts's system, (2) his convictions
under New York law were the result of guilty pleas, and (3) New
York has the same requirements as Mass. R. Crim. P. 12.


                              - 15 -
But, nevertheless, that case was different from this one in several

ways that are significant.         Here, there is no evidence that

Guardado has any learning disabilities, and he completed the ninth

grade (three more years than Guzmán-Merced did).               

.

Unlike Guzmán-Merced, who had never spent a day in prison, Guardado

has served several prison sentences.         

.   And Guardado was

in   his   early   to   mid-twenties    at   the   time   of    the    relevant

Massachusetts offenses, while Guzmán-Merced was 18.              

    All of

those facts make it less plausible here that a juror might have

reasonably doubted that Guardado did not know that his previous

state offenses were punishable by more than a year's imprisonment

when he committed the underlying federal offenses.

            That is not to say, of course, that a history of mental

illness can never make a difference in a case like this.                  And,

here, it may be reasonable to discount the strength of some of the

government's evidence in light of Guardado's mental illness.                 At

oral argument, Guardado's counsel made such an argument, noting

that Guardado had been hospitalized on December 1, 2008, following

several "suicide gestures."      He was under "close observation" for

approximately 17 days thereafter, and on discharge, was diagnosed

with Adjustment Disorder with Depressed Mood and Polysubstance

Abuse.     During that time, on December 5 and December 22, 2008, he

pleaded guilty to A&B and ABDW.        We assume, therefore, for present

purposes, that a reasonable juror might reasonably doubt on that


                                 - 16 -
basis that at such hearings he was able to understand that he was

pleading guilty to offenses punishable by more than a year's

imprisonment.6 And we assume that that may be true notwithstanding

that a judge would have explained the possible consequences to him

in accordance with Mass. R. Crim. P. 12, and notwithstanding that

he signed a waiver acknowledging that he understood the range of

possible sentences as to the December 5, 2008, plea or admission.

            But, even so, the Massachusetts court records here show

that he also pleaded guilty to § 922(g)(1) predicate crimes on

June 2, 2005, and October 27, 2009.         And other than his general

argument based on his mental health history, he has not explained

why he would not have understood the possible range of sentences

he could receive when he was advised of them on those occasions.

Moreover, the record shows that between approximately 1993 and

2007, he had no hospitalizations or documented treatment. Although

his June 2, 2005, plea was approximately five to six years before

the underlying federal offenses in May 2010 to February 2011, that

is approximately the same gap in time between the prior offenses

and   the   underlying   federal    offenses   as   in   Burghardt.   See

Burghardt, 

 (time gap of approximately six or


      6 Guardado's counsel raised that argument for the first time
at oral argument.    Except in "extraordinary circumstances," an
argument made for the first time at oral argument is considered
waived. Pizarro-Berrios, 

. Nevertheless, for present
purposes, we will assume that this case might warrant such an
exception.


                                   - 17 -
seven years).7      And on October 27, 2009, approximately 6 months to

1.5 years before the underlying offenses, Guardado pleaded guilty

to A&B, and thus would have again been advised that he was

admitting to a crime with a possible sentence of 2.5 years in a

house of corrections.8

          On that basis, among others, we conclude that Guardado

has   failed   to   carry   his   burden    of   establishing   that   it   is

reasonably probable that he would not have pleaded guilty but for

the Rehaif error.       That conclusion is based on a combination of



      7 It is true that, in Burghardt, there was the additional
fact that the defendant had been sentenced to more than a year's
imprisonment for his previous state offenses (though there was no
evidence that he had ever served more than a year's imprisonment
for any individual count). Burghardt, 

 & n.4. But,
as explained below, unlike the defendant in Burghardt, Guardado
also received a Mass. R. Crim. P. 12 notice only six months to 1.5
years before the underlying federal offenses. And the inquiry in
Burghardt was whether the defendant had shown actual prejudice on
direct appeal, while here, the inquiry is actual prejudice on
collateral review, which is a more demanding requirement. Ramirez-
Burgos, 313 F.3d at 32 n.12.
      8 We note that Guardado was hospitalized on June 16, 2009,
following an attempted suicide, and was diagnosed with Bipolar
Disorder Severe with Psychotic Features and Antisocial Personality
Disorder, among other conditions, during that stay. The PSR does
not specify how long he remained in the hospital thereafter (though
his other hospital stays appear to have ranged from 8 days to 1.5
months).
     Guardado did not develop any argument based on that
hospitalization in his briefs or at oral argument. In addition,
it took place approximately four months before his October 27,
2009, admission. Thus, without any argument to the contrary by
Guardado, we will not assume that he might have thought that a
reasonable juror would plausibly think that he lacked the ability
to understand the October 27, 2009, proceedings on that basis.


                                   - 18 -
four factors.          First, Guardado provides no reason to cast doubt on

the fact that the Massachusetts judges would have explained to him

that he was pleading guilty to crimes for which he could be

sentenced to 2.5 years in a house of corrections on at least two

occasions -- occasions for which the record reveals no reason that

a reasonable juror would have doubted his ability to understand

that    explanation.         Second,     one    of     those   occasions    was   only

approximately 6 months to 1.5 years before he committed the

underlying offenses.          Third, the sheer number of crimes punishable

by more than a year's imprisonment of which he was convicted

discredits the notion that he would not have known that he was a

convicted felon at the relevant time.                And, finally, he would have

given    up   a    3-level    reduction        under    the    Guidelines   for   his

acceptance        of    responsibility    by     not     pleading   guilty.       The

combination of those factors convince us that, here, it is not

reasonably probable that Guardado would have pleaded guilty if he

had been informed of § 922(g)(1)'s mens rea requirement.

                                         IV.

       For the foregoing reasons, we affirm the district court's

denial of Guardado's § 2255 petition.




                                       - 19 -