Ryan Thomas Bergsieker, Andrew A. Vogt, Office of the United States Attorney, Denver, CO, for Plaintiff–Appellee. David E. Johnson, Raymond P. Moore, Federal Public Defender, Jill M. Wichlens, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, CO, for Defendant–Appellant.
Before BRISCOE, Chief Judge, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON, Circuit Judges.

ORDER

This matter is before the court on appellant's Petition for Rehearing En Banc. We also have a response from the appellee. The en banc request and response were circulated to all the judges of the court who are in regular active service. A poll was called, and a majority of the court declined to grant en banc review. Consequently, the petition request is denied. SeeFed. R.App. P. 35(a). Judges Tymkovich, Gorsuch, Holmes, and Matheson would grant the petition for rehearing en banc. MURPHY, Circuit Judge, concurring in the denial of rehearing en banc.

I join the order denying en banc review (the “Order”). I write to clarify why it is appropriate to deny Games–Perez's petition for rehearing en banc.

It is only at this very late stage in the proceedings that this case has come to be about whether the plain language of two provisions of the United States Code, 18 U.S.C. §§ 922(g)(1) and 924(a)(2)—which respectively prohibit possession of a firearm by a felon and set out the penalty for that criminal conduct —require for conviction knowledge by a defendant of his status as a felon. The Dissent asserts the answer to this late-arriving question is unquestionably “yes” and the failure of the en banc court to take it up works an obvious injustice. Dissenting Op. at 1116–17. Before the panel, however, Games–Perez never asserted the plain-language argument identified by the Dissent. Instead, after recognizing this court previously held that knowledge of felonious status is not an element of the crime set out in § 922(g)(1), United States v. Capps, 77 F.3d 350, 352 (10th Cir.1996), Games–Perez asserted Capps, and the cases Capps relied on, were not controlling because they involved mistakes of law, while he is asserting a mistake of fact.

The panel majority rejected Games–Perez's arguments and affirmed his conviction. Relying on this court's decision in Capps, and noting every circuit court to address the question had reached the same conclusion, the panel majority reaffirmed that knowledge of felonious status is not an element of the crime set out in § 922(g)(1). United States v. Games–Perez, 667 F.3d 1136, 1140–42 (10th Cir.2012); see also Capps, 77 F.3d at 352 (“[T]he only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm.” (quotation omitted)).

In a separate concurring opinion, Judge Gorsuch opined that Capps was wrongly decided. Games–Perez, 667 F.3d at 1142–43 (Gorsuch, J., concurring). In particular, he asserted “Capps's holding—that the government doesn't have to prove a defendant knew he was a felon—simply can't be squared with the text of the relevant statutes.” Id. at 1143. But see Cone v. Bell, 556 U.S. 449, 482, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) ( “Appellate courts generally do not reach out to decide issues not raised by the appellant.”). Nevertheless, because the panel was bound by the decision in Capps, Judge Gorsuch concurred in the judgment. Id. at 1142.

Games–Perez thereafter filed the instant petition for rehearing en banc asserting for the very first time that Capps was wrongly decided because the plain language of § 924(a)(2) unambiguously requiresthe government to prove knowledge of felonious status to obtain a conviction under § 922(g)(1). But see United States v. Charley, 189 F.3d 1251, 1264 n. 16 (10th Cir.1999) (“It is axiomatic that petitions for rehearing are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief.” (quotation and alterations omitted)). A majority of this court has now voted to deny rehearing en banc. In response, the Dissent asserts this court's refusal to set aside Capps subjects both Games–Perez and criminal defendants generally to a continuing injustice. Dissenting Op. at 1116–17.

Before addressing the Dissent's assertion of injustice and concomitant claim that the merits of its plain-language argument are undeniably correct, it is necessary to identify substantial procedural impediments to addressing the issue set out in the Dissent. As noted above, the crux of the Dissent is its assertion that, taken together, §§ 922(g)(1) and 924(a)(2) plainly and unambiguously require the government to prove a defendant's awareness of his felonious status to obtain a conviction for violating the terms of § 922(g)(1). Dissenting Op. at 1117–19. As recognized by the Dissent, however, the very first time this issue was raised in this case was in the panel concurrence. Id. at 1117–18. To be clear, at no point in its filings before the district court did Games–Perez ever assert Capps was wrongly decided. Instead, in his motion in limine, he argued only that his case was distinguishable from Capps because Capps involved a mistake of law and he was asserting a mistake of fact.

Games–Perez affirmatively waived the issue set out in his petition for rehearing when he entered his guilty plea in district court. The record makes clear Games–Perez entered into a conditional guilty plea pursuant to the terms of Fed.R.Crim.P. 11(a)(2). “Although a defendant may not normally appeal his conviction after pleading guilty, ‘[w]ith the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.’ ” United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004). Accordingly, Games–Perez is entitled to raise his belated plain-language argument only if he reserved that issue in his conditional guilty plea. Id.

In his motion to enter a conditional guilty plea, Games–Perez indicated as follows: “Defendant by this motion[ ] seeks to reserve ‘in writing’ the right to have an appellate court review this Court's adverse determination issued on September 10, 2010 (Doc. 39)[, i.e., the district court's] order denying Defendant's Motion in Limine (Doc. 27) filed on August 18, 2010.” As recognized by the Dissent, the issue Games–Perez now seeks to bring before the court was not included in Games–Perez's motion in limine. Dissenting Op. at 1117–18 (recognizing that the first time the issue was raised was when it was raised in the panel concurrence). The district court's minute order memorializing the terms of the conditional plea specifically noted that “the issue being reserved for appeal is stated in defendant's motion to enter a conditional plea.” Thus, the record makes clear Games–Perez did not preserve the issue upon which he seeks en banc review. Furthermore, because this late-arriving argument is clearly within the scope of the waiver, was the product of a knowing and voluntary guilty plea, and does not result in a miscarriage of justice, summary denial of Games–Perez's en banc petition is appropriate. Anderson, 374 F.3d at 957–59, 957.

According to the Dissent, the government is foreclosed from prevailing on this theory because it “has not raised a Rule 11 waiver objection on its own motion.” Dissenting Op. at 1122. Given the procedural history of this case, the Dissent's suggestion in this regard is surprising. Consistent with the terms of his conditional guilty plea, Games–Perez did not raise before the panel the legal issue now before the en banc court. Nevertheless, the panel concurrence reached out and raised the argument on behalf of Games–Perez. Having been given the green light to ignore the obligations set out in his plea agreement, Games–Perez raised the issue for the very first time in his petition for rehearing. But see Charley, 189 F.3d at 1264 n. 16 (“It is axiomatic that petitions for rehearing are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief.” (quotation and alterations omitted)). Now, because the government has not asserted a waiver defense in response to an issue raised for the very first time by this court in a panel concurrence, the dissent asserts the government waived the Rule 11 waiver. But see Jordan v. U.S. Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir.2011) (“We have long said that we may affirm on any basis supported in the record, even if it requires ruling on arguments not reached by the district court or even presented to us on appeal.” (emphasis added)). The Dissent's selective disregard of procedural impediments to reaching the merits of Games–Perez's late-arriving, waived, and forfeited plain-language argument, coupled with its refusal to consider alternate procedural avenues for affirming the district court's judgment, perfectly illustrate the dangers of ignoring the adversarial process that serves as the foundation of our legal system.

Even setting aside the waiver flowing from his guilty plea, another significant procedural impediment precludes this court from granting Games–Perez relief on the issue belatedly raised in his petition for rehearing. Because Games–Perez never raised before the district court the validity of Capps vis-à-vis the plain language of §§ 922(g)(1) and 924(a)(2), the issue is forfeited. Fed.R.Crim.P. 52(b); Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (“If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited.”). To obtain appellate relief on a claim of error forfeited in the district court, an appellant must satisfy the exacting dictates of Rule 52(b) by demonstrating the existence of a “plain error.” Puckett, 556 U.S. at 134–35, 129 S.Ct. 1423. “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez–Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc) (quotation omitted). Because Games–Perez raised this issue for the first time in his petition for rehearing, he has never even acknowledged the applicability of the plain error doctrine, let alone attempted to satisfy its requirements. Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130–31 (10th Cir.2011) ( “[Appellant] hasn't even attempted to show how his new legal theory satisfies the plain error standard. And the failure to do so—the failure to argue for plain error and its application on appeal—surely marks the end of the road for an argument for reversal not first presented to the district court.”). Given this proceduralstate of affairs, this case is simply not an appropriate vehicle to now take up the issue addressed at length in the Dissent.

This court has “long said that we may affirm on any basis supported in the record, even if it requires arguments not reached by the district court or even presented to us on appeal.” Jordan v. U.S. Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir.2011) (emphasis added). Thus, it is neither unusual nor unjust for this court to identify a procedural impediment to reversing the district court's judgment in this case, i.e., Games–Perez has forfeited the issue upon which he seeks en banc review and has not even attempted to satisfy the plain-error requirements. Dissenting Op. at 1121–22 & n. 5. Instead, what is highly irregular is for this court to raise an issue sua sponte as a basis for reversing the district court. Cone v. Bell, 556 U.S. 449, 482, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (“Appellate courts generally do not reach out to decide issues not raised by the appellant.”).

Games–Perez's forfeiture of this issue is not excused merely because the district court did not have the power to overrule Capps. The Supreme Court has specifically rejected the creation of exceptions to the plain language of Rule 52(b). See Johnson v. United States, 520 U.S. 461, 465–66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also Richison, 634 F.3d at 1129 (“[T]he Supreme Court has cautioned us (repeatedly) against creating unwarranted exceptions to plain error review in the criminal context.”). Johnson involved a prosecution for perjury. Id. at 463, 117 S.Ct. 1544. Pursuant to then-extant Eleventh Circuit precedent, the district court instructed the jury that the question of materiality was one of law for the court to decide. Id. at 464, 117 S.Ct. 1544. After Johnson's conviction, but before her appeal to the Eleventh Circuit, the Supreme Court “held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge.” Id. (citing United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)). Even though a trial objection on the part of Johnson would have most certainly been overruled given existing Eleventh Circuit precedent, the Supreme Court nevertheless applied the Rule 52 plain-error standard specifically because Johnson failed to lodge just such an objection at trial. Id. at 465–66, 117 S.Ct. 1544. This court has been similarly unwilling to allow appellants to avoid the unambiguous dictates of Rule 52 in situations similar to the present case. Gonzalez–Huerta, 403 F.3d at 732;United States v. Schleibaum, 130 F.3d 947, 949 (10th Cir.1997).

The Dissent asserts this court should disregard Games–Perez's forfeiture because it was not raised by the government in its response to the petition for rehearing en banc. Dissenting Op. at 1121–22. This court has, however, rejected the notion that an appellant can ignore its own forfeiture in an opening merits brief. McKissick v. Yuen, 618 F.3d 1177, 1189–90 (10th Cir.2010). In McKissick, the appellant attempted to raise on appeal an argument not raised before the district court. Id. at 1189. This court held her failure to set out the appropriate standard of review and argue her entitlement to relief under that standard doomed her appeal:

Ms. McKissick's failure to develop her arguments adequately in the district court either forfeited (if her failure was unintentional) or waived (if her failure was intentional) them in that court. Which it is, however, we cannot tell. No doubt, Ms. McKissick would prefer forfeiture, where at least plain error appellate review is possible, rather than waiver where appellate review may be lost altogether. See United States v. Cruz–Rodriguez, 570 F.3d 1179, 1183–84 (10th Cir.2009). But her opening appellate brief neither identifies which standard of review she thinks pertains to her argument nor provides any defense of that standard's application. This despite our longstanding rules requiring parties to identify where in the record they raised the point of error they seek to correct on appeal, 10th Cir. R. 28.2(C)(2), to state what standard of review they think applies to our review of that point of error, Fed. R.App. P. 28(a)(9)(B), and to develop any argument for reversal in their opening appellate brief or risk having it held waived, see Hill v. Kemp, 478 F.3d 1236, 1250–51 (10th Cir.2007); Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 1277–78 (10th Cir.1994) (White, J., sitting by designation).

In these circumstances, even if Ms. McKissick's duress arguments were merely forfeited before the district court, her failure to explain in her opening appellate brief why this is so and how they survive the plain error standard waives the arguments in this court. A party cannot count on us to pick out, argue for, and apply a standard of review for it on our own initiative, without the benefit of the adversarial process, and without any opportunity for the adversely affected party to be heard on the question. See Herrera v. City of Albuquerque, 589 F.3d 1064, 1075 (10th Cir.2009); United States v. Solomon, 399 F.3d 1231, 1238 (10th Cir.2005); cf. Hill, 478 F.3d at 1251 (noting that, when left without briefing from the parties, courts “run the risk of an improvident or ill-advised opinion, given our dependence as an Article III court on the adversarial process” (internal quotation marks omitted)).
Id. at 1189–90 (footnote omitted). As was true in McKissick, Games–Perez never set out in his petition for rehearing en banc the appropriate standard of review nor developed an argument for relief under the applicable standard. Nor, according to McKissick, is he excused from doing so by the government's failure to raise the issue here, in its response to the petition for rehearing. That being the case, no matter the questionable merits of his plain-languageargument, he is not entitled to prevail on appeal.

Even setting the substantial procedural impediments to the side, there are numerous additional considerations counseling against reviewing this case en banc. To begin, the Dissent's assertion of injustice is not particularly compelling. In particular, Games–Perez's assertion of ignorance of his felonious status is dubious and the Dissent has failed to demonstrate the question at issue here recurs with any frequency. Furthermore, the merits of the Dissent's plain-language theory are far from clear. Additionally, the decision in Capps is long-standing, well-entrenched, and, importantly, consistent with the views of every circuit to address the question. Given all these considerations, this is not the appropriate case to reach out and create a circuit split.

The Dissent begins by asserting in its first sentence: “People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today this court votes narrowly, 6 to 4, against revisiting this state of affairs.” Dissenting Op. at 1116–17. The Dissent's tacit assertion of injustice is not convincing. The assertion of injustice depends entirely on the Dissent's view of the merits. And, as set out at length below, there is serious reason to doubt the Dissent's assertion that the statutes at issue here are plain and unambiguous on their face. Furthermore, the record before the court in this case contains no mention of the Dissent's hypothetical prisoners. Nor does the Dissent cite to any cases from this court involving a credible claim of ignorance of felonious status. In fact, Games–Perez asserts in his panel briefing that this court has never before faced a credible claim of factual ignorance of felonious status. Appellant's Reply Brief at 4. More fundamentally, there is a strong and principled reason to doubt Games–Perez's claimed ignorance of his status as a felon. The panel majority opinion indicates quite clearly that Games–Perez knew he would lose the benefit of his plea bargain if he were to possess a weapon while on probation for a deferred state felony conviction. Games–Perez, 667 F.3d at 1142;see also id. at 1145 (Gorsuch, J., concurring in the judgment) (recognizing the record contained “a certain amount of evidence suggesting that Mr. Games–Perez was aware he had a felony conviction”). All this being the case, it is difficult to take too seriously the Dissent's assertion that the court's denial of en banc review results in a clear and obvious injustice.

More importantly, the resolution of the legal issue presented in the petition for rehearing is simply not as clear as the Dissent suggests. The Dissent asserts that the seminal decision on the question, United States v. Langley, 62 F.3d 602 (4th Cir.1995), is unpersuasive because the court never supplies any reason for concluding the insertion of a mens rea into a penalty provision renders the reach of the mens rea requirement ambiguous. Dissenting Op. at 1119–20 & n. 2. A quick review of Langley verifies the contrary is true. The Fourth Circuit unanimously concluded the statutory scheme was ambiguous based on the insertion of a scienter requirement into a penalty provision, 18 U.S.C. § 924(a), rather than into the provision criminalizing the act of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Langley, 62 F.3d at 604–05 (stating issue on appeal was whether insertion of the term “knowingly” in a provision setting penalties for gun crimes mandated a scienter as to each element of a 922(g)(1) offense); id. at 610–11 (Phillips, J., concurring and dissenting) (concluding, after discussing at length the oddity of inserting a mens rea requirement into a penalty provision, that it was appropriate to resort to legislative history “because the statutory text is ambiguous”); see also United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir.1988) (“The FOPA amendments are somewhat confusing. Normally, the mens rea for a crime is set out as part of the substantive offense, not as part of a penalties provision....”). Thus, it is simply not accurate to imply the Fourth Circuit ignored the statutory text and turned directly to legislative history in interpreting §§ 922(g)(1) and 924(a)(2).

Nor, for those reasons stated so aptly by the courts in Langley and Sherbondy, can one confidently declare that the language of §§ 922(g)(1) and 924(a)(2) is so plain in imposing a mens rea requirement as to a defendant's status as a felon that all the other circuits addressing this question were undoubtedly wrong in turning to legislative history to aid interpretation of these statutes. Further, as recognized in the panel concurring opinion, the legislative history is “stocked with ample artillery for everyone.” Games–Perez, 667 F.3d at 1144 (Gorsuch, J., concurring in the judgment). Thus, the Dissent's assertion that the resolution of the legal issue in this case is so clear and obvious as to be beyond doubt is simply not so.

When coupled with two additional considerations, this lack of clarity as to the merits counsels strongly against en banc review. First and foremost, the circuits have historically been loath to create a split where none exists. See, e.g., Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 979 (8th Cir.2005) (“[T]he Tenth Circuit's decision ... is the only decision from a circuit court clearly addressing whether the FMLA mandates strict liability for any interference with an employee's FMLA rights. By adopting the Tenth Circuit's holding ..., our decision today avoids a circuit split.”); United States v. Alexander, 287 F.3d 811, 820 (9th Cir.2002) (“Absent a strong reason to do so, we will not create a direct conflict with other circuits.” (quotation and alteration omitted)); see also The Wilderness Soc'y v. Kane Cnty., 632 F.3d 1162, 1187 (10th Cir.2011) (en banc) (Lucero, J., dissenting) (criticizing majority for creating circuit split); Wilson v. Workman, 577 F.3d 1284, 1317 (10th Cir.2009) (en banc) (Gorsuch, J., dissenting) (same). As noted in the panel majority opinion, every circuit court to address this issue has reached a result consistent with Capps. Games–Perez, 667 F.3d at 1141. The avoidance of unnecessary circuit splits furthers the legitimacy of the judiciary and reduces friction flowing from the application of different rules to similarly situated individuals based solely on their geographic location.

Second, the rule recognized in the panel opinion has been the law in this circuit since 1996, Capps, 77 F.3d at 352–53, and has been universally accepted in the circuits for a similar length of time, Games–Perez, 667 F.3d at 1141. That being the case, the distinctive strand of stare decisis applicable to statutory interpretation counsels against altering this court's long-standing construction of the relevant statutes absent compelling circumstances. Cf. Hilton v. S.C. Pub. Ry. Comm'n, 502 U.S. 197, 202, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) (“Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.” (quotation omitted)).

Thus, the en banc court is presented with a lengthy list of factors strongly counseling against en banc review. The issue now before the en banc court was not raised before the trial court and is, therefore, forfeited and waived. Having raised the issue for the first time in his petition for rehearing en banc, Games–Perez has not even attempted to satisfy the exacting requirements of Rule 52. As the panel majority opinion makes clear, the record indicates Games–Perez was well aware of his felonious status. Likewise, the Dissent has not identified a single case from this circuit, and there apparently is no such case, where an individual was sent to prison in the face of a strong factual case of ignorance of felonious status. Furthermore, Congress has failed or refused to amend the statutes at issue here over a sixteen-year history during which the circuit courts uniformly limited the scienter requirement to knowledge the instrument possessed is a firearm. Finally, Supreme Court certiorari review is available to correct an erroneous statutory interpretation on the part of the circuit courts. Accordingly, this is not a case where the arguments in favor of en banc review overcome the rule that en banc review is “not favored.” Fed. R.App. P. 35(a). GORSUCH, Circuit Judge, joined by HOLMES, Circuit Judge, dissenting from the denial of rehearing en banc:

People sit in prison because our circuit's case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games–Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land. Of course, rehearing en banc is reserved only for questions of exceptional importance. 10th Cir. R. 35.1(A). And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.

* * *

Mr. Games–Perez was prosecuted under 18 U.S.C. § 924(a)(2) for “knowingly violat[ing]” § 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent in United States v. Capps, 77 F.3d 350 (10th Cir.1996), the government had to prove only that Mr. Games–Perez knew he possessed a firearm, not that he also knew he was a convicted felon.

For reasons I've already explained and won't belabor in detail here, it is difficult to see how someone might “knowingly violate[ ]” § 922(g) without knowing he satisfies all the substantive elements that make his conduct criminal—especially the first substantive element Congress expressly identified. For the reader interested in more on all this, my concurring panel opinion offers it. United States v. Games–Perez, 667 F.3d 1136, 1143–45 (10th Cir.2012) (Gorsuch, J., concurring). For current purposes, just stating Capps's holding makes the problem clear enough: its interpretation—reading Congress's mens rea requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic. Ordinarily, after all, when a criminal statute introduces the elements of a crime with the word “knowingly,” that mens rea requirement must be applied “to all the subsequently listed [substantive] elements of the crime.” Flores–Figueroa v. United States, 556 U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (emphasis and alteration added).

This court's failure to hold the government to its congressionally specified burden of proof means Mr. Games–Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. See Games–Perez, 667 F.3d at 1145 (Gorsuch, J., concurring). Given these repeated misstatements from the court itself, Mr. Games–Perez surely has a triable claim he didn't know his state court deferred judgment amounted to a felony conviction. Yet, because of our precedent in Capps, the government never had to face a trial on this question; it never had to prove its case that Mr. Games–Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.

There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what Capps permits, excusing the government from proving an essential element of the crime Congress recognized. When the case was before the panel, I was bound by Capps and forced by my duty to precedent to countenance its injustice. Now, though, the case is before the en banc court. Here, Capps does not control my vote or require the perpetuationof this wrong, and here I believe it should be overruled.

What's particularly noteworthy at this stage is that the government offers no colorable defense of Capps. After my panel concurrence raised doubts about that precedent's consistency with the language of §§ 922(g) and 924(a)(2), Mr. Games–Perez filed a petition for rehearing asking the en banc court to reconsider it. In his petition, Mr. Games–Perez argued that Capps is inconsistent with the statutory language and inconsistent with the proper application of the usual canons of statutory interpretation. Yet even when confronted with all this, the government's response to the petition for rehearing does not even attempt to defend Capps on the basis of the statutory language at issue. While not dispositive of the statute's meaning, this glaring omission surely says something, and something not at all good, about the plausibility of our precedent and the appropriateness of Mr. Games–Perez's conviction.

What's more, the extra-textual argument the government does press in response to the petition for rehearing hardly fills the void. The government seeks to defend Capps entirely on the basis of a legislative history exegesis found in the Fourth Circuit's divided decision in United States v. Langley, 62 F.3d 602 (4th Cir.1995) ( en banc). According to the government, Langley shows that, although 18 U.S.C. § 922(g)'s predecessor statutes did not contain an explicit mens rea, courts interpreting them required the government to prove that the defendant knew the object he possessed was a firearm—but not that the defendant knew of his felon status. See Langley, 62 F.3d at 604. From this, the government surmises, when Congress added the word “knowingly” to § 924(a), it must have meant only to adopt this judicial gloss and no more.

The problem with all this is that hidden intentions never trump expressed ones. Whatever weight courts may give to judicial interpretations of predecessor statutes when the current statute is ambiguous, those prior interpretations of now defunct statutes carry no weight when the language of the current statute is clear. When the current statute's language is clear, it must be enforced just as Congress wrote it. See Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“The starting point in discerning congressional intent is the existing statutory text, and not the predecessor statutes. It is well established that when the statute's language is plain, the sole function of the courts ... is to enforce it according to its terms.” (quotation marks and citations omitted)); RadLAX Gateway Hotel, LLC v. Amalgamated Bank, ––– U.S. ––––, 132 S.Ct. 2065, 2073, 182 L.Ed.2d 967 (2012) (while pre-enactment practice “can be relevant to the interpretation of an ambiguous text” it has no force when the text is clear). And whatever the legislative history may or may not suggest about Congress's collective “intent” (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive, and putting aside as well the Langley dissent's powerful rejoinders about Congress's putative intent in this case), the law before us that survived the gauntlet of bicameralism and presentment couldn't be plainer. By their express terms, §§ 922(g) and 924(a)(2) do not authorize the government to imprison Mr. Games–Perez and people like him unless and until the government can show they knew of their felon status at the time of the alleged offense. The government did not attempt to prove as much here. And that is all we need to know. Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes. But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.

Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X–Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); see also Staples v. United States, 511 U.S. 600, 610–12, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 437–38, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 250–53, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force. See Staples, 511 U.S. at 613–14, 114 S.Ct. 1793;District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Yet, for its part the government never explains how a much disputed legislative record can overcome this longstanding interpretive presumption.

With all the looming problems facing Capps and the government's failure to provide any convincing defense of it, the concurrence today seeks to supplement the government's case with arguments of its own. These arguments are principled and thoughtful and they merit careful consideration. In the end, however, I respectfully submit, none justifies retaining an erroneous precedent and sustaining Mr. Games–Perez's conviction without holding the government to its statutorily prescribed burden of proof.

First, the concurrence suggests that Langley and United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988), provide Capps and the government with their missing textual analysis. See Concurring Op. at 1113–15. And it's certainly true that Langley seems to say that the statutes at issue before us are ambiguous, and that this ambiguity justifies its expedition into the legislative history thicket. The difficulty is, Langley never supplies any reason for the claimed ambiguity. The two pages of Langley the concurrence cites (62 F.3d at 604–05) simply note the defendant's plain language argument, say “[w]e disagree,” and then proceed without furtherdelay to a study of statutory history. It's just an implacable fact that Langley—the foundation on which Capps, the government, and all circuit case law in this area rests—contains no meaningful effort to confront the plain meaning of the statutory text at issue before us. And Sherbondy does even less than that to help the government. That case is about another and different problem—whether the defendant, in addition to knowing of the facts and circumstances that made his conduct criminal, must also be aware that federal law criminalizes being a felon in possession. 865 F.2d at 1001–02. On that score the statute might be ambiguous as Sherbondy suggests. But Sherbondy nowhere purports to address (let alone answer) the question whether § 924(a)(2)'s express mens rea requirement applies to a defendant's felon status.

Second, the concurrence points to the fact that the term “knowingly violates” appears in § 924(a)(2) rather than § 922(g). See Concurring Op. at 1105 n. 1. But the concurrence does not explain how this fact might save Capps. If anything, it does just the opposite, suggesting § 924(a)(2)'s “knowingly” mens rea requirement modifies all the substantive elements of § 922(g) and surely at least its first. After all, how can a person “knowingly violate” the § 922(g) felon-in-possession statute if he doesn't know he is a felon in possession? See Games–Perez, 667 F.3d at 1145 (Gorsuch, J., concurring). The concurrence points out that an entirely separate provision of § 924—subsection (e)—punishes those who violate § 922(g) after three prior violent felonies or serious drug offenses, and does so without explicitly imposing any mens rea requirement. Concurring Op. at 1114–15 n. 15. But if this tells us anything about the meaning of § 924(a)(2)—which does contain a mens rea element—the contrasting language only strengthens the case for giving subsection (a)(2) its plain meaning. See Sosa v. Alvarez–Machain, 542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (“[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.”). In any event, whether or not any mens rea might properly be imposed in § 924(e) cases as a matter of judicial construction is of course an entirely different question for another day. See, e.g., Staples, 511 U.S. at 604–05, 114 S.Ct. 1793.

Third, the concurrence insists that, wholly apart from the statutory interpretation question, this case is an inappropriate candidate for en banc review because there's “a strong and principled reason to doubt Games–Perez's claimed ignorance of his status as a felon.” Concurring Op. at 1113. But, respectfully, it is the province of the jury to resolve colorable factual disputes. And as my panel concurrence explains in greater detail, the state trial judge in Mr. Games–Perez's predicate felony case repeatedly told him that his deferred judgment was not a felony conviction. Games–Perez, 667 F.3d at 1145. The state judge informed Mr. Games–Perez that “if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony.” Id. And after accepting the plea, the state judge said, “I am not entering judgment of conviction at this time, hopefully, I never will.” Id. Given these facts, Mr. Games–Perez undoubtedly has a triable, and quite possibly a winnable, case that he did not know of his felon status. Tellingly, after reviewing the relevant state court materials the able federal district judge in this case acknowledged that Mr. Games–Perez has “an extremely good equitable argument.” R. Vol. I. at 174; see also id. at 159–60. And, tellingly too, the government does not pursue the harmless error argument the concurrence now presses on its behalf.

Fourth, the concurrence raises procedural impediments that, it says, preclude us from reaching the merits of the case. In his petition for rehearing, there's no dispute that Mr. Games–Perez clearly asks us to overrule Capps. But, the concurrence points out, Mr. Games–Perez never asked the district court to overrule Capps as part of his permitted Rule 11 challenge to his conviction. And that, the concurrence reasons, means he either waived or forfeited the issue.

The first difficulty with this line of reasoning is the fact the government itself has not raised any waiver or forfeiture objection,only the concurrence does on the government's behalf. And under our precedents, the government's failure to raise a Rule 11 waiver objection on its own motion is fatal to that argument at least, an objection forgone by its omission. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.2004) ( en banc) (per curiam); United States v. White, 584 F.3d 935, 947 n. 5 (10th Cir.2009).

Separately but equally problematically, when it comes to forfeiture there is the fact Mr. Games–Perez very well may be able to satisfy plain error review even if he had to. SeeFed.R.Crim.P. 52(b) (courts may correct “plain error ... even though it was not brought to the court's attention”). After all, and as he has argued to us in his petition for rehearing, the error here is plain on the statute's face, it affects his substantial rights, and it is difficult to think of many errors reflecting more poorly on our legal system than imprisoning a man without first requiring him to be tried under the terms Congress expressly prescribed.

At the end of the day, if a potential waiver or forfeiture argument of our own invention is the best reason for not taking this case en banc, and it appears that's the concurrence's view, at least everyone is now on notice. On notice that, to avoid seeing their cases gummed up by procedural defenses this court might assert on the government's behalf, wary defense counsel in future cases should undertake the—otherwise entirely futile—gesture of asking district courts and panels of this court to overrule Capps. All this, of course, ensures the same statutory question sooner or later will find its way back to the very same spot it is in today. And because no district court or panel is authorized to take up the question of overruling Capps, the question won't be any better briefed, adversarially tested, or more ready for decision than it is in this case. But all this will at least ensure the issue is heard eventually—even if it remains unresolved just long enough so Mr. Games–Perez never receives his statutorily guaranteed day in court.

Fifth, and in a different vein, the concurrence argues this case is unworthy of en banc review because it might result in a circuit split and wind up treating similarly situated individuals differently “based solely on their geographic location.” See Concurring Op. at 1115. But even assuming some circumstance exists in which we might legitimately decline to apply the unambiguous terms of a congressional statute only to avoid disagreement with other circuits—a highly doubtful proposition to begin with—it surely cannot be that someone must go to prison just so we can avoid treating him better than those other circuits have incorrectly allowed to be put away.

Besides, one can easily risk overstating the state and strength of the case law in this area. The concurrence stresses, repeatedly, the supposed weight and uniformity of case law in this area. See, e.g., Concurring Op. at 1105, 1111–13, 1112 n. 11, 1113–15. But while the Fourth Circuit in Langley rejected Mr. Games–Perez's argument and some other circuits have more or less simply followed where Langley led, none has paused to address the plain language, structural, and canonical arguments he presses in his petition for rehearing. It's hard to say, then, that his arguments have yet received their due. In one form or another, his position has, as well, won endorsement from the lengthy en banc dissent in Langley joined by four judges, and from at least two district courts, see United States v. Matlack, No. 09–cr–00531, 2010 WL 2682110 (D.Colo. July 1, 2010); United States v. Kitsch, No. 03–594–01, 2008 WL 2971548 (E.D.Pa. Aug. 1, 2008), and its strength has been acknowledged explicitly or implicitly by at least two other circuits, see United States v. Reyes, 194 Fed.Appx. 69, 70 (2d Cir.2006) (unpublished) ( Langley dissent “has some persuasive force”); United States v. Gardner, 488 F.3d 700, 715, n. 2 (6th Cir.2007) (“[K]nowledge of felony status is arguably an element of the crime in many different species of felon in possession cases.”) (internal quotation marks omitted). Unsurprisingly, too, more than one circuit has taken a plain language approach to the phrase “knowingly violates” when it appears in other statutes, interpreting the term to require “knowledge of facts and attendant circumstances that comprise a violation of the statute.” United States v. Weintraub, 273 F.3d 139, 147 (2d Cir.2001); see also United States v. Lynch, 233 F.3d 1139, 1143 (9th Cir.2000). It's far from safe to say, then, that what authority that does exist in this area against Mr. Games–Perez is either fully considered or unqualified.

Approaching from a slightly different angle, the concurrence suggests the prudential doctrine of stare decisis should stay our hand. Concurring Op. at 1105, 1115–16 & n. 16. No doubt stare decisis and precedential considerations are most serious ones. As a member of the panel in this case, I was obliged to concur in its judgment because our outcome was settled by an earlier and so binding panel precedent. But it is surely uncontroversial to suggest that the point of the en banc process, the very reason for its existence, is to correct grave errors in panel precedents when they become apparent, even if the panel precedents in question happen to be old or involve questions of statutory or regulatory interpretation. See, e.g., United States v. Aguon, 851 F.2d 1158, 1167 n. 5 (9th Cir.1988) (en banc) (“The province and obligation of the en banc court is to review the current validity of challenged prior decisions.”), overruled on other grounds, Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992); Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C.Cir.1992) ( en banc ) ( en banc court may set aside precedent “if, on reexamination ... it decides that the panel's holding on an important question of law was fundamentally flawed”). The concurrence itself acknowledges that “[i]f the case truly were as clear cut as the Dissent paints it to be, it would undoubtedly be appropriate to en banc it even in the face of the potential of creating a circuit split.” Concurring Op. at 1116 n. 16. Plainly, then our disagreement is on the merits, not on the appropriate role of stare decisis. We actually agree that nothing in stare decisis doctrine teaches against rehearing en banc a panel precedent inconsistent with clear statutory directions from Congress.

In the end, I do not for a moment question that the standard for rehearing en banc is a high one or that the arguments one might muster against rehearing are thoughtful or principled. In my judgment, however, none of these arguments compels us to perpetuate the injustice of disregarding the plain terms of the law Congress wrote and denying defendants the day in court that law promises them. To the contrary, this case presents the surely exceptional situation where rehearing is appropriate to “give effect to [Congress's] plain command, even if doing that will reverse ... longstanding practice.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (internal citations omitted). The Supreme Court has told us time and again that “[a]ge is no antidote to clear inconsistency with a statute.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 300, 115 S.Ct. 2144, 132 L.Ed.2d 226 (1995). And while we must and do always take special care before expressing disagreement with other circuits and reversing our own panel precedents, sometimes these things are done because they must be done. The Supreme Court has not hesitated to give effect to the unambiguous meaning of a congressional command even when all circuits to have addressed the question have failed to abide the statute's express terms. See, e.g., Lexecon, 523 U.S. at 32, 118 S.Ct. 956;Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 177, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). Respectfully, I submit, this is a case where we should follow the Court's lead, enforce the law as Congress wrote it, and grant Mr. Games–Perez the day in court the law guarantees him.

* * *

* * *

* * *

* * *