FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 29, 2021 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 19-2154 ABIEL PEREZ-PEREZ, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-CR-03241-JCH-1) _________________________________ Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant. Tiffany Walters, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee. _________________________________ Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges. _________________________________ EBEL, Circuit Judge. _________________________________ Defendant-Appellant Abiel Perez-Perez (referred to by the parties and here as Perez) pled guilty to being an alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). On appeal, he challenges the district court’s failure to advise him of two elements of that offense: (1) the alien is illegally or unlawfully present in the United States; and (2) the alien knows that he is illegally or unlawfully present. Perez failed to raise this issue below and this Court thus reviews for plain error. The government concedes that the omission of these elements constitutes error that is now plain on appeal. The only dispute is whether Perez satisfied the third and fourth prongs of plain-error review. We conclude that Perez cannot satisfy the third prong because he cannot show that the error affected his substantial rights. Although Perez has a credible claim that, at the time of the offense, he did not know he was unlawfully present in the United States, he has failed to show a reasonable probability that he would not have pled guilty but for the district court’s error. This is because the context of Perez’s guilty plea makes clear that he pled guilty to avoid mandatory minimum sentences attached to charges the government dismissed in exchange for the guilty plea. Perez fails to show how the district court’s error impacted that choice, and he thus fails to satisfy the third plain-error prong. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm his conviction. I. BACKGROUND Perez’s Immigration Status Perez was born in Mexico. His family was very poor and struggled with homelessness. Perez has only a sixth-grade education, can barely read, and can barely write his own name. He does not speak English. He has worked as a painter and a blacksmith. In 2009, when he was thirty-three years old, Perez unlawfully entered the United States in the hope of obtaining better employment. 2 Since then, Perez has remained in the United States as an undocumented alien, working “under the table.” R., Vol. 3 at 74. In 2011, Perez married a U.S. citizen, but he did not take any immediate steps to obtain lawful residency status based on that marriage. In 2012, Immigration and Customs Enforcement charged Perez with illegal entry, …
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