United States v. Greenwood

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 7, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-1271
(D.C. No. 1:11-CR-00393-CMA-1)
NOVON GREENWOOD, (D. Colo.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Novon Greenwood was indicted for one count of knowingly possessing a firearm
after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). He moved
to require the Government to prove that he knew he had been convicted of a felony.1 He
*After examining Appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
1
The motion was styled as a motion to dismiss, arguing that the government could
not prove he had a prior felony, and, in the alternative, a motion in limine to require that
Continued . . .
later entered a conditional guilty plea. He now appeals the denial of his motion.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
On April 29, 2009, Mr. Greenwood pawned a stolen Sony Playstation 3. He was
charged in Arapahoe County, Colorado, with providing false information to a
pawnbroker, a felony.
On May 14, 2010, Mr. Greenwood pled guilty in Arapahoe County Court. He and
the state stipulated to a deferred judgment and sentence. If he complied with the
conditions of supervision for two years, the state would consent to a court order allowing
him to withdraw his guilty plea and would move for dismissal of the charge with
prejudice. The stipulation also stated that if Mr. Greenwood breached any of the
conditions, the court would enter judgment and impose sentence.2
On April 13, 2011, less than a year after his guilty plea, agents of the Bureau of
Alcohol, Tobacco and Firearms and the Aurora Police Department conducted a controlled
the Government prove that he knew he had been convicted of a felony. Mr. Greenwood
appeals only the motion in limine, and we do not discuss the dismissal motion in our
review of the procedural history or our analysis.
2
Under Colorado law, a deferred judgment results in a conviction but not a
judgment of conviction. M.T. v. People, 269 P.3d 1219, 1221-22 (Colo. 2012) (en banc)
(“The court’s acceptance of the guilty plea yields a conviction,” which is withdrawn upon
completion of the deferred judgment’s terms, but “defers judgment and sentencing.”);
People v. Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (same, in case involving Colorado’s
possession of a weapon by a previous offender law); cf. United States v. Cox, 934 F.2d
1114, 1124 (10th Cir. 1991) (a deferred judgment under Colorado law properly counted
in computing criminal history under federal Sentencing Guidelines).
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purchase of a firearm from Mr. Greenwood. On October 6, 2011, he was arrested.
According to the plea agreement’s stipulation of facts, he admitted in a post-arrest
interview that he had a felony conviction under a deferred judgment.
On October 3, 2011, a federal grand jury indicted Mr. Greenwood for one count of
knowingly possessing a firearm after having been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1). On November 18, 2011, he filed a motion in limine. He
requested a pre-trial order requiring that the Government prove, to obtain a conviction
under 18 U.S.C. § 922(g)(1), that Mr. Greenwood knew he had a prior felony conviction.
On January 23, 2012, we decided United States v. Games-Perez, 667 F.3d 1136
(10th Cir. 2012), a case substantially similar to this one. There, we followed our
precedent “that ‘the only knowledge required for a § 922(g) conviction is knowledge that
the instrument possessed is a firearm.’” Id. at 1139-40 (quoting United States v. Capps,
77 F.3d 350, 352 (10th Cir. 1996)). In a hearing on February 2, 2012, the district court
stated that it was inclined to deny Mr. Greenwood’s motion in light of Games-Perez.
Mr. Greenwood and the Government then agreed to a conditional plea agreement
whereby Mr. Greenwood would reserve the right to appeal the denial of the motion in
limine. Should he prevail on appeal, he would be permitted to withdraw his guilty plea.
The district court accepted the plea agreement, denied the motion in limine, and
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sentenced Mr. Greenwood to 18 months in prison and 3 years of supervised release.3
II. DISCUSSION
The issue is whether the Government must prove that Mr. Greenwood knew he
had been convicted of a felony. See 18 U.S.C. § 922(g)(1) (unlawful for a person “who
has been convicted . . . of[] a crime punishable by imprisonment for a term exceeding one
year” to possess a firearm). He concedes circuit precedent is against him, but brings this
appeal to preserve the issue for en banc or Supreme Court review.
We held under substantially similar circumstances “that ‘the only knowledge
required for a § 922(g) conviction is knowledge that the instrument possessed is a
firearm.’” Games-Perez, 667 F.3d at 1139-40 (quoting Capps, 77 F.3d at 352). As the
parties recognize, we may not overrule the decision of a prior panel “absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.” United States
v. Loughrin, 710 F.3d 1111, 1117 (10th Cir. 2013) (quotations omitted).
For this reason, we affirm.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
3
At the change of plea hearing, the district court deferred the decision to accept
the guilty plea until the sentencing hearing. At the sentencing hearing, the district court
stated that the record “show[ed] that . . . pursuant to a plea agreement, [Mr. Greenwood]
entered a plea of guilty and [was] convicted of . . . possession of a firearm by a prohibited
person.” ROA II at 48. After Mr. Greenwood responded that this was correct, the district
court stated, “All right,” and proceeded with the sentencing. Id.
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