The Tenth Circuit denied Games-Perez’s petition for rehearing en banc. He made a conditional guilty plea to being a felon on possession of a firearm in violation of 18 U.S.C. § 922(g)(1), but reserved the right to appeal the court’s denial of his motion in limine that sought a pre-trial ruling that the government was required to prove that he actually knew he was a felon.
The penalty for violation of § 922(g)(1) is found in 18 U.S.C. § 924(a)(2), which requires a knowing violation. In his initial appeal, he argued mistake of fact. At the time of his arrest for possessing the firearm, he was on a deferred judgment of a felony for attempted robbery.
The Tenth Circuit in United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996), as well as all other circuits to rule on the issue, held that knowledge of felony status is not an element of § 922(g)(1); that “knowing” applies only to possession of the firearm. In Games-Perez’s petition for rehearing en banc, he argued for the first time that Capps was wrongly decided and that the plain language of § 924(a)(2) requires the government to prove knowledge of felony status.
Because the defendant did not preserve the plain language issue in his conditional plea or make a plain error argument, and given the importance of stare decisis and a lack of split in the circuits, rehearing en banc was not proper. The concurring opinion addresses the lengthy dissent, which argued Capps was wrongly decided.