United States of America v. Kordell Payne

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2384
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
KORDELL PAYNE ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2018-CR-172-PP — Pamela Pepper, Chief Judge.
____________________
SUBMITTED J UNE 9, 2020* — D ECIDED J ULY 8, 2020
____________________
Before S YKES, Chief Judge, and K ANNE and BRENNAN, Cir-
cuit Judges.
BRENNAN, Circuit Judge. A defendant pleaded guilty to the
crime of felon in possession of a firearm. The law now re-
quires that the defendant’s knowledge of his felon status be
* We granted the parties’ joint motion to waive oral argument, and the
appeal is therefore submitted on the briefs and the record. F ED . R. APP.
P. 34(a)(2)(C).

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2 No. 19-2384
reviewed as part of such a plea, which was not done. We con-
sider whether, but for that clear and obvious error, there is a
reasonable probability the defendant would not have entered
a guilty plea. Such a probability exists when, given the entire
record, a jury might believe the defendant was plausibly ig-
norant of his status as a felon.
I
One night in June 2018, Milwaukee police officers heard
gunshots. They sped toward the sounds and saw two men
crossing the street. Upon seeing the officers, one of the men,
Kordell Payne, ran. The officers pursued him and saw him
throw a pistol into a yard. After catching up with Payne and
arresting him, the officers recovered the pistol, which was
loaded.
Once in custody, Payne attempted to hide his identity; he
told the officers his name was “Jeffrey Demps” and provided
a false birthdate. He also said he was not a felon. After finger-
printing, the officers learned Payne had outstanding warrants
for absconding from state probation and three prior felony
convictions.
In 2008, when Payne was 20-years old, he was convicted of
child abuse (he admitted to breaking his girlfriend’s child’s
arm) and driving a stolen vehicle (he was stopped in a stolen
car while on pre-trial release). See W IS . STAT . §§ 943.23(3)(a)
(felony operating vehicle without owner’s consent),
948.03(2)(b) (felony physical abuse of a child). For these two
felonies Payne received concurrent sentences of 15 months’
imprisonment with 15 months’ supervision, but the sentences
were stayed pending successful completion of three years’
probation with six months in the Milwaukee County House

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No. 19-2384 3
of Correction. Payne’s probation was eventually revoked in
both cases, so he served 13 months in confinement on the con-
current sentences. In 2014, Payne was convicted of a third fel-
ony, failure to comply with a police officer; he hid from offic-
ers who were attempting to take him into custody for holding
hostage a domestic partner and her child. See WIS . STAT .
§ 946.415(2). Payne also was convicted of misdemeanor bat-
tery for the injuries he caused to his partner. See W IS . STAT .
§ 940.19(1). For the felony, Payne was sentenced to exactly one
year in state prison, and for the misdemeanor he was sen-
tenced to 225 days in the House of Correction.
After being charged for possessing a firearm as a felon,
18 U.S.C. §§ 922(g), 924(a)(2), Payne pleaded guilty without a
plea agreement. The district court conducted a thorough col-
loquy to determine whether Payne’s guilty plea was knowing
and voluntary, and it confirmed Payne’s admissions that he
possessed a firearm that had traveled in interstate commerce
and that he previously had been convicted of a crime punish-
able by a term of imprisonment exceeding one year. Nothing
in the colloquy revealed definitively whether Payne had
known he was a convicted felon at the time he possessed the
gun.
Payne asked the district court to mitigate his sentence
based on his low educational attainment and mental-health
issues. He had been placed in special education at an early
age, he had earned only 0.25 high school credits, and he had
diagnosed bipolar disorder, anxiety, and depression. He also
posited his early and heavy marijuana use may have stinted
his brain development. Citing Payne’s mental-health condi-
tion, the district court sentenced him to 41 months in prison,

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4 No. 19-2384
10 months below the bottom of his Guidelines range of 51 to
63 months’ imprisonment.
Ten days after Payne was sentenced, the Supreme Court
held that to be convicted of such a status offense, a defendant
must have known “he belonged to the relevant category of
persons barred from possessing a firearm.” Rehaif v. United
States, 139 S. Ct. 2191, 2200 (2019). Payne argues there is a rea-
sonable probability he would not have pleaded guilty had he
known about this element, and he requests, for the first time
on appeal, to withdraw his guilty plea.
II
In Rehaif the Supreme Court held that a defendant’s
knowledge of the status that prevents his legal possession of
a firearm is an element of a crime under 18 U.S.C. §§ 922(g),
924(a)(2). 139 S. Ct. at 2195–96; see also United States v. Maez,
960 F.3d 949, 954–55 (7th Cir. 2020) (knowledge of status, not
knowledge of criminal prohibition, is required). Although
Rehaif involved a defendant’s knowledge of his immigration
status, the Supreme Court acknowledged its decision’s appli-
cation to a defendant who is unaware of his felon status, for
example because he “was convicted of a prior crime but sen-
tenced only to probation.” 139 S. Ct. at 2198. This decision up-
set not only the law of this circuit but the unanimous conclu-
sion of all the courts of appeals. United States v. Williams,
946 F.3d 968, 970 (7th Cir. 2020).
Based on this change in the law, Payne asks this court to
vacate his conviction and allow him to withdraw his guilty
plea. Given the timing of Rehaif, Payne never moved to with-
draw his plea in the district court, so his request to do so now
must be reviewed for plain error. See id. at 971 (citing F ED. R.

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No. 19-2384 5
C RIM. P. 52(b)). Plain error has four elements: (1) an error,
which (2) was clear and obvious, (3) affected the defendant’s
substantial rights, and (4) seriously affects the fairness, integ-
rity, or public reputation of judicial proceedings. Id.;
see also United States v. Olano, 507 U.S. 725, 732 (1993).
The parties agree that the failure to acknowledge the sta-
tus element was a clear and obvious error, so this case turns
on whether the error affected Payne’s substantial rights and
the integrity of the judicial proceedings. See Henderson
v. United States, 568 U.S. 266, 269 (2013) (plain error is deter-
mined based on law at time of review). Payne bears the bur-
den of persuasion on the first question. See Williams, 946 F.3d
at 973. To meet it, he “must show a reasonable probability
that, but for the error, he would not have entered the plea.”
Id. at 971 (quoting United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004)). We have determined such a probability exists
when a defendant would have had, post-Rehaif, a “plausible
ignorance defense,” meaning a jury might believe, despite
prior felony convictions, that the defendant was ignorant of
his sentencing exposure. Id. at 973–74. To assess whether
Payne could mount such a defense, we consider the entire rec-
ord, including Payne’s criminal history, not just the transcript
of the plea proceedings. See Maez, 960 F.3d at 960 (citing
Dominguez Benitez, 542 U.S. at 80).
Based on the presentence investigation report—to which
Payne did not object—it is highly implausible Payne was ig-
norant of his felon status. At the time of his arrest for firearm
possession, Payne had been convicted of three felonies in state
court, each of which resulted in a sentence exceeding one
year. True, for the first two of those convictions, Payne’s con-
current sentences of 15 months’ imprisonment were stayed in

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6 No. 19-2384
favor of 3 years of probation. But his probation was revoked
and his stayed sentence was imposed, resulting in him actu-
ally serving 13 months in confinement. And for his third fel-
ony, Payne was sentenced to a year in Wisconsin State Prison.
As the dockets in Payne’s three state court cases reveal,
Payne was told he could not possess firearms as a felon during
sentencing for each of his prior felony convictions. Wiscon-
sin’s criminal law so requires: W IS . STAT . § 973.176(1) provides
“FIREARM P OSSESSION. Whenever a court imposes a sentence
or places a defendant on probation regarding a felony convic-
tion, the court shall inform the defendant of the requirements
and penalties applicable to him or her … .” While failure to
give this warning does not prevent a conviction, State v. Phil-
lips, 172 Wis. 2d 391, 395 (Ct. App. 1992), we can strongly pre-
sume, from the express statements in the three docket sheets
and the common practice in the courts in which he was con-
victed, that this firearms admonition was given at each of
Payne’s felony sentencings. See United States v. Huntsberry,
956 F.3d 270, 285 (5th Cir. 2020) (presuming state court fol-
lowed state law requiring it to inform defendant of penalties
of his conviction); United States v. Burghart, 939 F.3d 397, 405
(1st Cir. 2019) (same). These admonitions would have made
Payne aware not only of his status, but also of the criminal
prohibition against his possessing a firearm because of his sta-
tus, more than is required to prove the Rehaif element.
See Maez, 960 F.3d at 954–55.
Payne contends these state court records would not have
affected his plea decision in this case because he would have
objected to their admission at trial. But as we have noted,
when we review alleged errors in guilty plea proceedings, the
record is not circumscribed by admissibility. See id. at 960.

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No. 19-2384 7
And it is well-settled that we may judicially notice court rec-
ords as evidence of prior judicial actions. Huntsberry, 956 F.3d
at 285 (citing 21B Charles Alan Wright & Arthur R. Miller, Fed-
eral Practice and Procedure § 5106.4 (2d ed. 2019)); see also FED.
R. EVID. 201(b) (we may judicially notice any “fact that is not
subject to reasonable dispute because it ... can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned”).
Payne argues a jury may well believe he did not under-
stand his felon status, despite what he was told during
sentencing for his prior convictions, because of his low-edu-
cational attainment, early and heavy marijuana use, and
childhood mental-illness diagnoses. But the limited evidence
that Payne has provided is insufficient to support a jury find-
ing that he was unable to understand the state judges’ instruc-
tions. As examples, he has not shown that he ever challenged
a prior conviction on the basis of his competency, see W IS .
STAT . § 971.14, or that he ever pleaded not guilty by reason of
mental disease or defect, see WIS . STAT . § 971.15. And Payne
does not suggest that he would be able to produce additional
evidence of his limited mental capacity on remand.1 Although
it is possible cognitive or psychological issues might impair a
defendant’s understanding of his sentencing exposure, with-
out more of a factual or procedural predicate that argument
does not rise here to the level of plausibility.
We can conceive of fact patterns and procedural histories
on which a plausible ignorance defense on a status crime
could conceivably allow for the withdrawal of a guilty plea.
1 We considered but rejected a limited remand of this case for that
purpose.

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8 No. 19-2384
See, e.g., United States v. Triggs, 2020 WL 3466909 (7th Cir. July
1, 2020). But because Payne was convicted of three felonies
before he was charged, and he was present at various hearings
at which Wisconsin’s statutory firearms prohibition would
have been read, we conclude he has not established a plausi-
ble ignorance defense.
One final note: for the first time in his reply brief, Payne
argues the error here was structural. Except in limited circum-
stances, arguments raised by criminal defendants for the first
time in reply are waived, United States v. Desotell, 929 F.3d
821, 826 (7th Cir. 2019), and Payne does not suggest any ex-
ception applies. In any event, we recently ruled that omission
of the Rehaif element is not a structural error. Maez, 960 F.3d
at 957–58.
AFFIRMED

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