United States v. Lamar Johnson, 963 F.3d 847

Johnson was convicted at a stipulated-facts bench trial of being a felon in possession of firearms under 18 U.S.C. § 922(g)(1).
The parties’ stipulation established Johnson had a prior felony conviction punishable by more than one year, but said nothing about whether Johnson knew of that status.
After this court affirmed, the Supreme Court decided Rehaif v. United States, which requires proof that a § 922(g) defendant knew he belonged to the prohibited category; the Supreme Court granted certiorari, vacated, and remanded.
Because Johnson did not raise a sufficiency challenge below, the Ninth Circuit reviewed for plain error under Fed. R. Crim. P. 52(b); the government conceded error and that it is now clear under Rehaif, and the parties assumed the third prong might be met, leaving only the fourth prong in dispute.
The court addressed whether, under the fourth prong, review is limited to the trial record or may include the broader appellate record when an intervening change in law permits retrial (Weems exception).
The appellate record included an uncontested presentence report showing three prior prison sentences exceeding one year; the court held this evidence foreclosed a finding that the unpreserved Rehaif error seriously affected the fairness, integrity, or public reputation of proceedings and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plain-error review (fourth prong) is limited to the trial record or may consider the entire appellate record when retrial would be allowed	Limit review to trial record; Double Jeopardy prevents reliance on outside materials; trial record lacks proof of knowledge	Court may consider full appellate record when Weems exception permits retrial because government may present additional evidence	Court may consider the entire record on appeal where retrial is permitted (Weems exception applies)
Whether Johnson satisfied the fourth prong (error seriously affects fairness, integrity, or reputation)	Stipulated facts lacked evidence of knowledge of felon status; therefore the error was reversible	Presentence report (uncontested) shows multiple >1‑year prison sentences; no plausible argument outcome would differ at retrial	Johnson failed to show a miscarriage of justice under the fourth prong; convictions affirmed

Rehaif v. United States, 139 S. Ct. 2191 (2019) (requires government to prove defendant knew his prohibited status under § 922(g))
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency-of-the-evidence review)
Burks v. United States, 437 U.S. 1 (1978) (double jeopardy bars retrial when evidence at trial is insufficient)
United States v. Weems, 49 F.3d 528 (9th Cir. 1995) (intervening change in law permitting retrial when government had no reason to present the newly required proof at trial)
United States v. James, 987 F.2d 648 (9th Cir. 1993) (limits sufficiency review to trial record; illustrative double jeopardy concerns)
Johnson v. United States, 520 U.S. 461 (1997) (fourth-prong requires plausible argument that error could have affected outcome)
United States v. Cotton, 535 U.S. 625 (2002) (plain-error fourth-prong may be unsatisfied where overwhelming, uncontroverted evidence makes retrial futile)
Dominguez Benitez v. United States, 542 U.S. 74 (2004) (Rule 52(b) relief is sparingly applied to avoid wasteful reversals)