*2 Before: SMITH, Chief Judge , McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, SCIRICA,* and RENDELL, [*] Circuit Judges.
(Filed: December 1, 2020) _______________ Leigh M. Skipper
Brett G. Sweitzer
Keith M. Donoghue [ARGUED]
Federal Community Defender Office For the Eastern District of Pennsylvania 601 Walnut Street
The Curtis Center Suite 540 West Philadelphia, PA 19106
Counsel for Appellant
Ilya Shapiro
Cato Institute
1000 Massachusetts Avenue, NW
Washington, DC 20001
Counsel for Amicus Cato Institute *3 Jared McClain
New Civil Liberties Alliance
1225 19 th Street, NW – Suite 450
Washington, DC 20036
Counsel for Amicus New Civil Liberties Alliance Evan A. Young
Baker Botts
98 San Jacinto Boulevard – Suite 1500 Austin, TX 78701
Counsel for National Association of Home Builders, American Farm Bureau Federation, National Cattlemens Beef Association, and National Mining Association David C. Weiss
Robert F. Kravetz [ARGUED]
Whitney C. Cloud [ARGUED]
Daniel E. Logan, Jr.
Office of United States Attorney
1313 North Market Street
Hercules Bldg. Ste. 400
Wilmington, DE 19801
Counsel for Appellee
_______________ OPINION OF THE COURT [**]
_______________
JORDAN, Circuit Judge .
On a tip, Malik Nasir was arrested near a storage unit in
which he kept the marijuana he was selling. He was
subsequently charged with, and convicted of, two drug
offenses and a firearm offense. At sentencing, the District
Court applied a career offender enhancement. Nasir now
appeals his convictions and challenges the application of that
enhancement. We will affirm Nasir’s convictions in part but,
in light of the Supreme Court’s decision in
Rehaif v. United
States
,
to the extent the Conclusion addresses subjects considered in Sections II.D and II.E. Judge Bibas has written a concurring opinion as to Section II.D., and Judge Matey has written a concurring opinion as to Section II.E. The opinions of Chief Judge Smith and Judges Chagares, Hardiman, Shwartz, Bibas, Porter, and Phipps are reflected in the Partial Dissent authored by Judge Porter and in Sections I and II.D. of the Majority Opinion, and in the Conclusion in Section III, to the extent the Conclusion addresses the subject considered in Section II.D. The remaining portions of the Majority Opinion represent the precedential decision of the original panel in this case, consisting of Judges Jordan, Scirica, and Rendell.
I. BACKGROUND
On December 21, 2015, the owner of a storage facility in Dover, Delaware reported to the police suspicious activity at one of the storage units, number C69. The owner asked the police to visit the storage facility to discuss what he believed to be “ drug occurrences ” on his property. (App. at 90.) When the police arrived, he told them that, over the past several months, someone had visited that unit frequently, as often as five times a day. Each time, the man – whom he identified as Nasir would enter the storage unit and close the door behind him. Shortly thereafter, he would reemerge and leave the facility. Concerned about illegal activity, the owner had taken a photograph of the inside of the unit, which he showed the officers. It revealed two large coolers, two closed buckets, a box of baggies, a large bag, and an aerosol spray can. The owner provided a copy of a rental agreement signed by Nasir and a photocopy of Nasir’s driver’s license . The rental agreement listed Nasir’s storage unit as C43, not C69, but the police apparently did not notice that discrepancy.
Following up on the information provided by the facility owner, the police ran a criminal history check on Nasir and learned that he had a criminal record that included felony drug convictions. They visited unit C69 with a drug detection dog, and the dog positively alerted to the presence of drugs there. Based on the accumulated evidence, the detectives applied for a search warrant for that unit.
While awaiting the warrant, several police officers remained at the storage unit, and one surveilled Nasir’s home. The officer at the home saw Nasir place a large black bag in the back of a Mercury Mariner SUV and drive in the direction of the storage facility. Nasir in fact went to the facility, and, when he arrived, the officers stopped him as he entered the row of units including numbers C69 and C43. After handcuffing him and putting him in the back of a patrol car, they searched his SUV, where they found a black duffle bag and a key to unit C69.
That same night, a search warrant issued and was executed. In unit C69, the police found more than three kilograms of marijuana, as well as scales and packaging materials. The next day, they applied for and received a search warrant for Nasir’s home and any vehicles on the property. While executing the warrant, the officers found $5,000 in cash in a grocery bag in the house and several handguns with ammunition in a Dodge Charger parked on the property.
Nasir was indicted for violating 21 U.S.C. § 856(a)(1), part of what is commonly known as the crack house statute (Count One), and was also charged under 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) for possession of marijuana with intent to distribute (Count Two), and under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) as a felon in possession of a firearm (Count Three). He moved to suppress the evidence obtained from the searches of the storage unit, his house, and his vehicles. The District Court held hearings on that motion and denied it.
At trial, and of particular relevance now, Nasir entered
a stipulation with the government as to the charge that he
*7
illegally possessed a firearm. Pursuant to
Old Chief v. United
States
,
After the trial, Nasir filed a motion to set aside the verdict and a motion for a new trial, both of which were denied. The District Court sentenced him to 210 months of imprisonment and three years of supervised release, having determined that he qualified as a career offender under the United States Sentencing Guidelines (the “guidelines”) because of two earlier convictions in Virginia, one from the year 2000 for attempting to possess cocaine with intent to distribute and one from 2001 for possession of cocaine and marijuana. This timely appeal followed.
II. DISCUSSION
Nasir raises five arguments. First, he says that there was insufficient evidence to sustain his conviction under the crack house statute because the section of the statute under which he was convicted does not make it unlawful to store drugs. Second, he argues that the officer who searched the Mercury Mariner did not have probable cause to justify that search, so the evidence found there should have been suppressed. Third, he contends that a member of his jury was avowedly partial, so seating her deprived him of a fair trial. Fourth, he asserts that the career offender enhancement under the guidelines should not have factored into his sentencing because one of his prior felony convictions does not qualify as a “ controlled substance offense, ” as that term is defined in the guidelines. Finally, he (Supp. App. at 21.) The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
argues that the government did not prove that he knew he was a felon, as is now required by Rehaif in a prosecution under 18 U.S.C. § 922(g), 139 S. Ct. at 2194, so his conviction under that statute for being a felon in possession of a firearm cannot stand.
We will affirm the District Court’s denial of Nasir’s motion for acquittal as to Counts 1 and 2 and accordingly affirm those convictions. In doing so, we reject Nasir’s first three arguments. However, we agree that he does not qualify for the career offender enhancement and must be resentenced. We also hold that his conviction for being a felon in possession of a firearm must be vacated and remanded for a new trial on that count of the indictment.
A. The Crack House Conviction
Nasir first challenges his conviction under the crack
house statute, specifically 21 U.S.C. § 856(a)(1), which makes
it unlawful to “knowingly … lease, rent, use , or maintain any
place … for the purpose of manufacturing, distributing, or
using any controlled substance. ” Despite the breadth of that
language, Nasir argues that his conviction should be reversed
because, he says, that subsection was not meant to cover
storage. Nasir did not preserve that argument in the District
*10
Court, so we review the denial of his motion for judgment of
acquittal for plain error.
United States v. Olano
,
Nasir’s argument rests on the contrast between subsection (a)(1) of the crack house statute, which he was convicted of violating, and subsection (a)(2), under which he was not charged. That latter subsection declares it unlawful to “ manage or control any place, whether permanently or temporarily, … and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing , distributing, or using a controlled substance. ” 21 U.S.C. § 856(a)(2) (emphasis added).
According to Nasir, because “storing” is listed as a prohibited activity in subsection (a)(2) but is not mentioned in subsection (a)(1), it was intentionally excluded from (a)(1). By *11 his lights, since he was storing illegal drugs, he should be safe from conviction under (a)(1). But even if we were inclined to accept that subsection (a)(1) does not cover storage, that does not help Nasir. No sensible reading of the statute allows one to distribute drugs just because one is also storing them. Within unit C69, besides the drugs themselves, there was drug distribution paraphernalia, namely scales and packaging materials such as food storage bags. In addition to that evidence, there was the testimony of the facility owner about Nasir’s frequent and suspicious trips to the unit. S ubsection (a)(1) expressly prohibits “distributing” a controlled substance from any rented place, and the jury was presented with more than ample evidence that Nasir was doing just that. The District Court properly instructed the jury that it could find Nasir guilty of violating section 856(a)(1) if he used a “place for the purpose of manufacturing, distributing , or using any controlled substance. ” (App. at 615 (emphasis added).) There was thus an obvious and legitimate basis for his conviction under the crack house statute, and the District Court’s denial of Nasir’s motion for a judgment of acquittal was not error at all, let alone plain error.
B. The Motion to Suppress Evidence from the SUV
Nasir also appeals the denial of his motion to suppress the evidence retrieved in the search of his Mercury Mariner SUV. He repeats the argument he made in the District Court, saying that the officer who searched the SUV lacked probable cause. We review de novo whether there was probable cause to justify police action. United States v. Vasquez-Algarin , 821 F.3d 467, 471 (3d Cir. 2016).
The legal theories offered in opposition to and support of the SUV search have morphed over time. They began with Nasir objecting to the search as the proverbial fruit of the poisonous tree. He said the “[p]olice did not have cause to arrest [him] at the time he arrived at the storage facility parking lot and accordingly all statements made by him and any evidence found subsequent to his arrest should be suppressed.” (App. at 47.) In responding to that motion, the government said that the search of the SUV “was a lawful search incident to a valid arrest pursuant to Arizona v. Gant , 556 U.S. 332 (2009).” (App. at 60 n.21.) The government also stated that, at the suppression hearing, it “would present evidence that the search … was a valid inventory search[,] ” although apparently it did not do so. (App. at 60 n.21.) In his post-hearing rebuttal briefing before the District Court, Nasir argued that the search of the SUV was unlawful as a search incident to arrest and as an inventory search. The District Court ultimately classified the search as being incident to Nasi r’s arrest but noted that, even if the search had occurred prior to the arrest, “the search of the vehicle appears to have been within the scope of the automobile exception” to the warrant requirement of the Fourth Amendment. (App. at 21 n.4 (citations omitted).)
On appeal, Nasir simply asserts that there was no
probable cause to search the SUV, without specifying the legal
framework for analysis. We conclude that the District Court
*13
correctly approached the issue as being a search incident to
arrest. Even when, like Nasir, an arrestee is detained and not
within reach of his vehicle, the police may conduct “ a search
incident to a lawful arrest when it is reasonable to believe
evidence relevant to the crime of arrest might be found in the
vehicle.”
Gant
,
In challenging the search of the SUV, Nasir says that the evidence uncovered in that vehicle – a black duffle bag and the key to unit C69 should have been suppressed because the investigating officers did not corroborate the tip from the storage facility owner. Nasir characterizes the owner as an unknown and unreliable informant, and he lays particular emphasis on the incorrect unit number on the rental agreement the owner provided to the police. Nasir also argues that the District Court impermissibly attributed information known only to officers not present at the search to the officer who actually conducted the search. His arguments are unpersuasive.
When the police receive information from an informant
for the first time, they have a duty to independently corroborate
at least some of the information the informant provides.
See
Illinois v. Gates
,
Given the totality of those circumstances known to the officers who arrested Nasir, there was certainly probable cause, reasonably corroborated, for Nasir’s arrest , and it was reasonable to believe that evidence of his drug dealing would be found in the SUV. We will therefore affirm the District Court’s denial of Nasir’s motion to suppress.
C. The Ruling on Alleged Juror Bias
Nasir next claims that he was deprived of a fair and impartial jury because one of the jurors at his trial, Juror 27, did not unequivocally affirm that she would be impartial. Our review of a ruling on a motion to strike a juror for cause is for manifest error a most deferential standard. Skilling v. United States , 561 U.S. 358, 396 (2010). The Supreme Court has emphasized that jury selection is “particularly within the province of the trial judge” and cautioned against “second - guessin g the trial judge’s estimation of a juror’s impartiality[.]” Id. at 386 (citation and internal quotation marks omitted).
During voir dire, one of the questions the District Court asked to determine juror partiality was, “Would you give more or less weight to the testimony of a law enforcement agent or police officer than you would give to that of a civilian witness, simply because he or she is employed as a law enforcement agent or police officer?” (App. at 237 -38.) Because Juror 27 answered “yes” to th at question, the following colloquy ensued:
A JUROR: […] But the other thing that I kind of answered “yes” to was police officer and a person on the street. I would like to think I would be partial (sic) , but I don’t know.
THE COURT: You would like to think you would be impartial and fair to both sides?
A JUROR: Yes, impartial that is what I would like to say.
THE COURT: What is your concern you wouldn’t be?
A JUROR: Well, my daughter dates a state police officer. And I really have a lot of respect *16 for them, you know, and I feel that for the most part they all do a good job, and they try to be fair. I think I might tend to believe what they say. I don’t know.
THE COURT: Do you think if I instruct you that you have to be fair and impartial and assess everybody’s credibility as best as you can that you would be able to do that?
A JUROR: I would think I would. I would hope I would.
(App. at 305.) Then, outside the juror’s presence the Court and counsel had this further conversation:
[NASIR’S ATTORNEY] : Your Honor, I move to strike on the basis that she -- her daughter is dating a state police officer and she would tend to believe the officer and police testimony.
THE COURT: What is the government’s position?
[GOVERNME NT’S ATTORNEY] : Your Honor, I don’t have a real strong one. That she would answer any questions that she was instructed [sic]. She could stay impartial. She confronted all those issues. I certainly understand why [Defense counsel] is objecting. THE COURT: Any response?
[NASIR’S ATTORNEY] : No response, Your Honor.
THE COURT: I’m going to deny the motion. I felt sufficient confidence that she would work as hard as anyone could to be fair and impartial, and *17 I think she would follow the instructions. So I’m denying the motion to strike.
(App. at 306-07). Nasir argues that the statements “I would think I would ” and “ I would hope I would” are not sufficiently strong affirmations of impartiality.
Because the juror admitted to her concern about partiality, the District Court quite rightly asked follow-up questions to determine whether she was actually biased. Cf. United States v. Mitchell , 690 F.3d 137, 142 (3d Cir. 2012) (holding that actual bias is “the existence of a state of mind that leads to an inference that the person will not act with entire impartiality[,] ” unlike implied bias, which is “ presumed as [a] matter of law ” (citations and internal quotation marks omitted)). Here, Juror 27’s acknowledgement that she “ha [s] a lot of resp ect for” police officers and “might tend to believe what they say” prompted the District Court to emphasize her obligation to be fair and impartial and to weigh the evidence equally. (App. at 305.) She responded with assurances that she would follow the Court’s instructions. Her declaration that she “would think” and “would hope” (App. at 305) that she could be impartial – combined, it seems, with the way in which she said it allowed the District Court, observing her behavior and mannerisms first hand, to have “sufficient confidence that she would work as hard as anyone could to be fair and impartial.” (App. at 306 -07.) That decision, on this record, is not manifestly erroneous.
D. The Career Offender Enhancement
Nasir next challenges the enhancement he received at
sentencing pursuant to the “career offender” provision of the
sentencing guidelines. He argues that he should not have
*18
received the enhancement because one of his two prior
qualifying convictions was an inchoate drug offense, which
does not qualify as a predicate offense under the plain language
of the guidelines. The interpretation of the guidelines is a legal
question, so we exercise plenary review.
United States v.
Wilson
,
1. The Definition of “ Controlled Substance Offense s” in the Guidelines Under section 4B1.1 of the sentencing guidelines, an adult defendant is a career offender if “the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and … the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). If a defendant is a career offender, that designation increases the offense level of the crime for which he is to be sentenced and mandates a criminal history ranking of Category VI. U.S.S.G. § 4B1.1(b).
The District Court determined that one of Nasir’s three convictions in this case is a controlled substance offense, namely his conviction on Count Two for possession of marijuana with intent to distribute. After evaluating Nasir’s criminal history, the Court concluded that two of his prior convictions in Virginia state court also qualify as predicate controlled substance offenses: a 2000 conviction for an attempt to possess with intent to distribute cocaine and a 2001 conviction for possession of marijuana and cocaine with intent *19 to distribute. [9] Nasir was accordingly sentenced as a career offender.
He argues that his conviction in 2000 for attempting to possess with intent to distribute cocaine should not qualify as a “controlled substance offense” under section 4B1.1 because the g uidelines’ definition of a “controlled substance offense” does not include inchoate crimes. [10] In particular, Nasir points out that section 4B1.2 of the sentencing guidelines defines the term “controlled substance offense , ” to mean
an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
*20 U.S.S.G. § 4B1.2(b). Nasir notes this definition plainly does not mention inchoate crimes, and consequently asserts that his inchoate “attempt” crime should not qualify as a predicate offense for the career offender enhancement. The analytical problem is more complicated than that, however, because the commentary to section 4B1.2 appears to expand the definition of “‘controlled substance offense’ [to] include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1. That section of the commentary, and, importantly, our precedent on the application of the commentary to the interpretation of the guidelines, informed the District Court ’s decision to apply the career offender enhancement. The question, then, is whether the more expansive commentary should be given controlling weight in interpreting the narrower guideline at issue here.
2. The Effect of the Commentary on our Interpretation of the Guidelines
The extent to which the guidelines ’ commentary controls our interpretation of the guidelines themselves is informed by principles of administrative law. In Stinson v. United States , 508 U.S. 36 (1993), the Supreme Court considered how to classify the commentary to the sentencing guidelines and whether and when it should be given binding interpretive effect. Because the guidelines are written by the Sentencing Commission, a body that straddles both the legislative and judicial branches of the government, the Court determined that the commentary to the guidelines is more akin to an agency regulation than a statute. Id. at 44. Consequently, the Court determined that the commentary should “be treated as an agency’s interpretation of its own legislative rule . ” Id. Relying on its opinion in Bowles v. Seminole Rock & Sand Co. , the Court said that such determinations should be given deference unless they are “ plainly erroneous or inconsistent with the regulation.” Id. at 45 (quoting Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414 (1945)). Further, the Court instructed that, “if the guideline which the commentary interprets will bear the construction,” the commentary can expand the guidelines, particularly when the commentary is “interpretive and explanatory.” Id. at 46-47. Accordingly, so- called Seminole Rock deference, also sometimes called Auer deference, governs the effect to be given to the guidelines commentary.
Our precedent has followed that course. In
United
States v. Hightower
,
More than fifty years later, in
Auer v. Robbins
,
Our interpretation of the commentary at issue in
Hightower
the same commentary before us now – was
informed by the then-prevailing understanding of the deference
that should be given to agency interpretations of their own
regulations.
Thus, although we recognized that the
commentary expanded and did not merely interpret the
definition of “controlled substance offense,” we nevertheless
gave it binding effect. In doing so, we may have gone too far
in affording deference to the guidelines ’ commentary under the
standard set forth in
Stinson
. Indeed, after the Supreme
Court’s decision last year in
Kisor v. Wilkie
,
In Kisor , the Court cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations and explained that Auer , or Seminole Rock , deference should only be applied when a regulation is genuinely ambiguous. Id. at 2414-15. Kisor instructs that “a court must carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer de ference.” Id. at 2415 (citation, brackets, and quotation marks omitted). Thus, before deciding that a regulation is “genuinely ambiguous, a court must exhaust all the traditional tools of construction.” Id. (citation and quotation marks omitted).
Even when a regulation is ambiguous, there are limits to deference. The agency’s reading must be “reasonable [,] ” as informed by “[t]he text, structure, history, and so forth [,] ” which “ establish the outer bounds of permissible interpretation.” Id. at 2415-16. A court “must make an *24 independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight[,] ” including whether it is the age ncy’s “official position [.] ” Id. at 2416. Moreover , an agency’s interpretation must “ in some way implicate its substantive expertise” if it is to be given controlling weight, since “[s]ome interpretive issues may fall more naturally into a judge’s bailiwick.” Id. at 2417. Finally, the reading must “reflect fair and considered judgment” and not simply be a “convenient litigating position.” Id. (citations and quotation marks omitted). In short, the degree of deference to be given an agency’s interpretat ion of its own regulations is now context dependent.
3. Plain Text and Policy The definition of “controlled substance offense” in section 4B1.2(b) of the guidelines is, again, in pertinent part as follows:
[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). The guideline does not even mention inchoate offenses. That alone indicates it does not include them. The plain-text reading of section 4B1.2(b) is strength ened when contrasted with the definition of “crime of *25 violence” in the previous subsection . That definition in section 4B1.2(a) does explicitly include inchoate crimes, see U.S.S.G. § 4B1.2(a) (“The term ‘crime of violence’ means any offense … that – (1) has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” (emphasis added) ), which further suggests that the omission of inchoate crimes from the very next subsection was intentional.
That suggestion is separately bolstered by the fact that section 4B1.2(b) affirmatively lists many other offenses that do qualify as controlled substance offenses. As a familiar canon of construction states, expressio unius est exclusio alterius : the expression of one thing is the exclusion of the other. Applying that canon has led at least one court of appeals to conclude that section 4B1.2(b) does not include inchoate crimes. See United States v. Winstead , 890 F.3d 1082, 1091 (D.C. Cir. 2018) (“Section 4B1.2(b) presents a very detailed ‘definition’ of controlled substance offense that clearly excludes inchoate offenses.”).
There is an important additional policy advantage to the
plain-text approach: it protects the separation of powers. If we
accept that the commentary can do more than interpret the
guidelines, that it can add to their scope, we allow
circumvention of the checks Congress put on the Sentencing
Commission, a body that exercises considerable authority in
setting rules that can deprive citizens of their liberty. Unlike
the g uidelines, the commentary “never passes through the
gauntlets of congressional review or notice and comment.”
United States v. Havis
,
On that basis, along with the plain text of the guidelines,
another of our sister courts of appeals has rejected the notion
that com mentary to 4B1.2(b) can expand the guidelines’ scope.
See Havis
,
In light of Kisor ’s limitations on deference to administrative agencies, we conclude that inchoate crimes are not included in the definition of “ controlled substance offenses ” given in section 4B1.2(b) of the sentencing guidelines. Therefore, sitting en banc, we overrule Hightower , and accordingly, will vacate Nasir’s sentence and remand for resentencing without his being classified as a career offender.
E. The Felon-in-Possession Conviction
The final issue on appeal concerns Nasir’s conviction
under 18 U.S.C. § 922(g) for being a felon in possession of a
*27
firearm. After Nasir filed his opening brief, the Supreme Court
decided
Rehaif v. United States
, holding that, “ in a prosecution
under … § 922(g) … , the Government must prove both that the
defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm .”
Rehaif represents a reevaluation of an old and oft- invoked criminal statute. Nasir responded to the Supreme Court’s opinion by promptly filing a supplemental brief, arguing that his conviction as a felon in possession of a firearm cannot stand since the government did not provide any evidence to prove the knowledge-of-status element of the crime. He admits, though, that he did not voice an objection to that at trial. We therefore review for plain error.
Again, the test for plain error under
United States v.
Olano
proceeds in four steps and requires the defendant to
prove that there was (1) an actual error (2) that is plain or
obvious, (3) that affect ed “the outcome of the district court
proceedings,” and (4) that “seriously affect[ ed] the fairness,
integrity or public reputation of judicial proceedings.”
Olano
,
*28
Before directly addressing those steps, however, it bears repeating that, until Rehaif , § 922(g) had not been understood as the Supreme Court interpreted it there. No knowledge-of- status element had previously been perceived in the statute, and *29 no proof of it was required. It is hardly surprising, then, that the government did not offer any evidence at N asir’s trial that *30 he knew he was a felon, and the District Court did not instruct the jury that such proof was necessary. Since Rehaif , the government has claimed that the evidence admitted at the trial in this case was adequate to prove that, when Nasir was found with guns in his possession, he knew he was a felon and hence a person prohibited from possessing a firearm. But, perhaps recognizing how unconvincing that characterization of the evidence is, the government has spent the majority of its efforts in this appeal on a more plausible but still ultimately unsuccessful argument: that, even if the record is devoid of proof on the knowledge-of-status element, we should not recognize and correct the error on plain-error review because Nasir surely did know that he was a felon.
That brings us to the difficult and dividing issue in this case, one that has elicited a variety of responses from other courts of appeals dealing with the aftermath of Rehaif . The was widely recognized before Rehaif , the government ’s burden of proving that element, and every other element of the § 922(g) charge, was the same. Nothing that Nasir did or didn’t do at trial affected that. Failure to object at trial begets plain- error review on appeal; it does not reverse the constitutionally mandated burden of proof and does not put the government on moral high ground in our assessment of the consequences of plain error, as the Dissent seems to think. If the Dissent wants to think in terms of fault – an exercise that seems unproductive, especially in light of the marked change in the law wrought by Rehaif then surely some fault must fall on the government for failing to recognize that knowledge-of-status is an element of the offense and therefore failing to introduce evidence about Nasir’s knowledge of his prior felony.
assertion that Nasir knew he was a felon is founded entirely on information that his jury never saw or heard, so the question is whether an appellate court on plain-error review is restricted to the trial record or is instead free to consider evidence that was not presented to the jury. We conclude that, even on plain- error review, basic constitutional principles require us to consider only what the government offered in evidence at the trial, not evidence it now wishes it had offered. Accordingly, we wil l vacate Nasir’s conviction for being a felon in possession of a firearm and will remand for a new trial on that charge.
1. Due Process and the Right to Trial by Jury Limit our Review to the Trial Record
As stated by the Supreme Court in
In re Winship
, “t he
Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged. ”
397 U.S. 358, 364 (1970). The government has to prove its
case to the “proper factfinder,” and “[d] ue process commands
that no man shall lose his liberty unless the Government has
borne the burden of … convincing the factfinder of his guilt. ”
Id.
In the context of a jury trial such as Nasir’s, the
requirements of due process are further bolstered by the Sixth
Amendment, which allocates the role of “proper factfinder” to
the jury, and to the jury alone. Indeed, going back at least as
far as Blackstone, it has been a given that the jury – not
appellate judges after the fact must find “ the truth of every
accusation ” for a conviction to be sustained . 4 William
United States v. Carll
,
concurrence of our colleague Judge Matey, which eloquently emphasizes the right to trial by jury. Although our colleagues in dissen t say that they “do not purport to ‘find facts’ in order to overcome a deficiency in the evidence and on that basis pronounce the defendant’s conviction while relieving the government of its burden” (Dissent at 9), that is precisely the effect of their position. If no facts were given to the jury from *33 Blackstone, Commentaries on the Laws of England , *343-44. T he jury has “an unquestionable right” to decide the case, “for, if the judge’s opinion must rule the verdict, the trial by jury would be useless.” Id. at *354-55. Accordingly, to secure a conviction that is consistent with its constitutional obligations, the government must present evidence to the jury to prove beyond a reasonable doubt every single element of the crime.
Notably, no one questions that if we were reviewing a sufficiency-of-the-evidence objection that had been preserved at trial, our review would be confined to the trial record. Only evidence and argument that had actually been proffered would matter. That foundational point, rooted as it is in the Due Process Clause of the Fifth Amendment, serves as a bright-line rule, buttressed by the Sixth Amendment’s guarantee of trial by jury. The question before us thus becomes whether the plain-error standard of review permits us to disregard the demands of the Due Process Clause and the Sixth Amendment and to affirm a conviction when no evidence was presented to the jury on one of the elements of the charged offense. We think the answer to that question has to be no.
To rule otherwise would give us free rein to speculate whether the government could have proven each element of the offense beyond a reasonable doubt at a hypothetical trial that established a different trial record. But no precedent of the Supreme Court or our own has ever sanctioned such an which the existence of an element of the charged crime can be determined, and if the appellate court then searches outside the trial record to discover facts that will fill that void, those appellate judges are indeed finding facts to decide the case. That is antithetical to the right to a jury trial.
approach. To the contrary, given the dictates of the Due
Process Clause, as described in
Winship
,
Plain error is a deferential standard, to be sure, but it does not alter fundamental constitutional precepts. Accordingly, the Supreme Court has limited itself to the trial record in analogous cases. The exact procedural posture we are in now was present in Johnson v. United States , 520 U.S. *35 461 (1997). The defendant in that case was convicted of perjury, but, before her direct appeal to the Eleventh Circuit was concluded, the Supreme Court handed down an opinion holding that the materiality of a false statement had to be decided by a jury rather than the trial judge. Id. at 463-64. The defendant had not objected at trial to the judge being the one who made the decision on materiality, because no one at the time knew there was such an objection to be made. Id. at 464. The Eleventh Circuit decided that the error inherent in the judge rather than the jury making the materiality decision did not affect the defendant’s substantial rights. Id. In other words, it decided the case at Olano step three. It made that decision, though, not in spite of a government failure to carry the constitutionally mandated burden of proof but precisely because the government had carried its burden so fully. As described by the Supreme Court, the Eleventh Circuit conducted an “independent review of the record and determin[ed] that … ‘overwhelming’ evidence of materiality” had been provided to the jury, so “[n]o reasonable juror” could have decided the materiality question in any way other than as the trial judge did. Id. at 465 (second alteration in original).
The Supreme Court agreed with the outcome but took a different analytical path. It did not address the plain-error analysis in Johnson at Olano step three, as the court of appeals had. Instead, it went directly to step four, and, accepting that the evidence on materiality in the trial record was so “overwhelming” that a rational jury could not reach any conclusion but guilt, the Court decided that the fairness, integrity, and reputation of the judicial process could not be called into question by the conviction. Id. at 469-70. The argument for reversal on plain error failed, in other words, based on the trial record. Johnson thus highlights the *36 importance of the government carrying its constitutional burden at trial.
Given the due process and Sixth Amendment concerns in play here, we are not free to suppose what the government could have proven at a different trial. The only relevant question, even on plain-error review, is what the government did prove at this trial. Nevertheless, while the constitutional implications of Rehaif seem clear to us, they are not beyond dispute, as the close division among us in this en banc appeal shows and as is further evidenced by decisions from our sister circuits.
2. The Differing Approaches of Other Courts of Appeals With one exception, other courts of appeals that have considered wh ether the government’s failure to prove the of the government’s failure to carry its burden of proof but rather because it had carried its burden so overwhelmingly that the Court upheld the conviction. In United States v. Medley , 972 F.3d 399 (4th Cir.
2020), the Fourth Circuit vacated a defendant’s jury trial
conviction on plain-error review after
Rehaif
because the
indictment did not allege knowledge-of-status, the government
had presented no evidence of knowledge-of-status at trial, and
the jury was not instructed to find knowledge-of-status.
However, the Court did not address the issue we confront here,
namely whether we are restricted to the trial record on plain-
error review of a jury conviction. It is noteworthy, though, that
the majority in that case appeared to take it as given that it was
limited to the trial record,
id.
at 417 (noting that the
g overnment “provided substantial post -trial evidence
*38
knowledge-of-status element in a 922(g) prosecution is plain
error have decided that it is not. They have reached that result
based on their preliminary conclusion that they are permitted
to look outside the trial record to find evidence to plug the gap
left by the prosecution at trial. The justifications offered for
that view are not all of a piece.
See United States v.
Huntsberry
,
Under one line of thinking, the Supreme Court’s
decision in
United States v. Vonn
, 535 U.S. 55 (2002),
authorizes consideration of the entire record, not just the trial
record, at step three of plain-error review of a jury verdict, even
though
Vonn
was decided in the context of a guilty plea.
United States v. Ward
,
The trailblazer on the first path – the one resting on the
Supreme Court’s decision in
Vonn
was the Eleventh Circuit
in
United States v. Reed
, a case initially decided on the basis of
the pre-
Rehaif
state of the law.
The problem with Reed and the cases that follow it, however, is that Vonn involved review of the voluntariness of a guilty plea, a procedural posture that is completely unlike the review of a conviction following trial. In Vonn , the Supreme Court held that, in ascertaining the adequacy of a Rule 11 colloquy, a reviewing court may look beyond the colloquy to the record created at a defendant’s initial appearance and arraignment “[b]ecause … defendants may be presumed to recall information provided to them prior to the plea proceeding[.]” Vonn , 535 U.S. at 75. The focus was, appropriately, on the information known to the defendant at the time of the plea because, when a defendant pleads guilty, the district court must ensure that the plea is knowing and voluntary . That’s the job at th e plea stage because it is what due process demands in that context. McCarthy v. United States , 394 U.S. 459, 466 (1969) (“[I] f a defendant ’ s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. ”). And the reviewing court’s job is to make sure of the same thing, which makes it logical to look at what a defendant was told at earlier stages of the criminal proceedings.
The question is quite different when reviewing whether the government has borne at a trial – or even at a plea proceeding its burden to “convince the trier [of fact] of all *41 the essential elements of guilt.” Winship , 397 U.S. at 361 (citation omitted). In that procedural setting, due process and Sixth Amendment considerations compel us to focus our inquiry on the information presented to the trier of fact – in this case, the jury. Vonn is inapposite where, as here, we are concerned not with the facts possessed by the defendant and their effect on the voluntariness of his plea but with the information presented to the fact-finder to prove an element of the charged offense. Put differently, when there has been a plea rather than a trial, no one is concerned about or mentions the adequacy of the trial record because there is none. Likewise, however, when there has been a trial and an utter status from his prior guilty plea.” (Dissent at 12 n.5.) The Dissent therefore faults us for refusing to consider Nasir’s three prior guilty pleas especially one for a felon-in-possession charge. That conviction is one that our colleagues especially emphasize as a “central reason” not to correct the plain error here. (Dissent at 12 n.5.) But the fact that a guilty plea must be knowing and voluntary has no bearing on whether we may consider a guilty plea that was never presented to the jury. What divides us has nothing to do with the strength of the evidence outside the trial record. It has everything to do with whether, consistent with constitutional safeguards, we can properly go outside the trial record. And to the extent the Dissent suggests that the government is free to ignore the elements of the charged offense at a plea colloquy, we disagree with that as well. The government must always make a record demonstrating a factual basis for the crime to which the plea is entered.
failure of proof is at issue, it is simply beside the point to rely on case law dealing with the voluntariness of plea colloquies.
The second rationale adopted by some courts for going beyond the trial record acknowledges that a reviewing court is restricted to the trial record at the first three steps of plain-error review, but then holds that the fourth step changes the scope of review. Since the fourth step of Olano calls for the exercise of discretion, and since that discretion must account for potential harm to the reputation of the judiciary, those courts say it is fine to look outside the trial record because the public will. The reasoning is, in effect, that the defendant is obviously guilty and the justice system will not appear to have served justice if, through no fault of the prosecution, the defendant is freed on the technicality that proof of a previously unknown element of the offense was not offered in evidence.
which one rightly can look if what is being considered is the trial supposedly under review. For purposes of Olano step four, and for this type of error, the trial is the only judicial proceeding at issue. Applying a different version of this approach, the
Fifth Circuit at first declined to answer whether it was limited
to the trial record on plain-error review but determined that it
could judicially recognize facts at the fourth step of plain-error
review, including a defendant’s prior state conviction s.
See
Huntsberry
,
The Second Circuit took essentially that approach in United States v. Miller . In analyzing a Rehaif challenge to jury instructions, the court decided that “the substantial -rights analysis [, i.e. , the Olano step three question,] in [the defendant’s] case is a difficult one, given the paucity of factual development at trial pertaining to a question that was not discerned before Rehaif was decided.” 954 F.3d at 559. Because the step-three question was difficult, the court chose “to resolve [the] case on t he fourth prong of plain-error review[,] … which does not necessarily confine us to the trial record.” Id. The court cited no authority for that postulate about being free to roam beyond the trial record. It asserted it and then, noting that the presentence investigation report provided ample evidence that the defendant must have known he was a felon, and referencing his stipulation at trial, concluded that the fairness and integrity of the judicial system would not be questioned, even though there was a “paucity” of evidence of his guilt presented at trial. Id. at 559-60.
The Seventh Circuit has adopted the same kind of
approach. In
United States v. Maez
, it began by explaining why
Vonn
is not applicable when reviewing jury convictions,
17-1964,
distinguishing that case as we have above and saying, “[t]he
Supreme Court has made clear that harmless-error analysis
[performed at
Olano
step three] looks only to the trial record
to measure the effect of trial error. ”
Maez
,
*46 Court has never suggested that we are categorically barred from taking into account evidence not introduced at trial in considering whether an instructional error satisfies the fourth prong of plain- error review.” Lara , 2020 WL 4668535, at * 13. Although the Court acknowledged the due process concerns in “revis[ing] the basis on which a defendant is convicted simply because the same result would likely obtain on retrial,” id. at *14 (citation omitted), it nonetheless characterized a reversal in this context as “wasteful” and declined to exercise its discretion to notice the error on the fourth prong of plain-error review, id. at *13-14.
Similarly,
the Ninth Circuit has decided
that
examination of evidence outside the trial record is permissible
to avoid “wasteful reversals.”
United States v. Johnson
, No.
17-10252, 2020 WL 6268027, at *4 (9th Cir. Oct. 26, 2020)
(quoting
United States v. Dominguez Benitez
,
Our disagreement with this fourth-step approach is that
it treats judicial discretion as powerful enough to override the
defendant’s right to put the government to its proof when it has
charged him with a crime. We do not think judicial discretion
trumps that constitutional right, and neither
Miller
nor
Maez
cite any pre-
Rehaif
authority supporting a contrary conclusion.
Moreover, those decisions and the ones that follow them are
independently troubling to the extent they imply that relief on
*48
plain-error review is available only to the innocent. That is a
proposition the Supreme Court put to rest in
Rosales-Mireles
v. United States
,
And as for any objection that technicalities can be overlooked on plain-error review, we do not accept that the question of whether we are confined to the trial record is a mere technicality. It is, in our view, a matter of the highest importance. The word “technicality” is too often used to denigrate a principle that stands between an advocate and a preferred result . “A ll law is technical if viewed solely from *49 concern for punishing crime without heeding the mode by which it is accomplished. ” Bollenbach v. United States , 326 U.S. 607, 614-15 (1946). The Constitution puts procedural safeguards in place to protect against just such an approach. Given the imperative of due process, and “ [i]n view of the place of importance that trial by jury has in our Bill of Rights, ” it should not be supposed that “ the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, [can be substituted] for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be. ” Id . at 615.
In sum, we disagree with both variants of the rationales that other courts of appeals have adopted to justify unmooring themselves from the trial record when conducting plain-error review. Given our view of the due process and jury trial *50 rights at issue, our analysis of Nasir’s claim of plain error will be confined to the trial record and the evidence the government actually presented to the jury.
3. Applying Plain-Error Review Turning to the trial record, and with the first two steps of the plain-error test from Olano not in dispute, the only questions left for our consideration are whether the admitted plain error of a conviction on proof of less than all of the elements of the 922(g) charge affected Nasir’s substantial rights ( Olano step three) and whether we should exercise our discretion to notice the error ( Olano step four). On this record, the answer to both questions is yes.
Supreme Court seeing an issue the same way and, given the Supreme Court’s position in our judicial hierarchy , all of them being wrong. That is not to say that all post- Rehaif cases should be
resolved in favor of the defendant. Despite the Dissent’s
assertions to the contrary, we are not advocating nor effectively
establishing a
per se
rule. Each case must be decided on its
own facts. For example, there have been cases where sufficient
evidence was presented at trial to show that the defendant was
aware of his status as a felon at the time of the crime.
See, e.g.,
United States v. Moss
, 812 F. App’x 108, 111 (4th Cir. 2020)
(rejecting a
Rehaif
-based challenge because “[d]uring his
direct testimony, [the defendant] stated that he was well aware
of his prohibited status because of his prior convictions.”);
United States v. Velázquez-Aponte
,
a)
Olano
step three
To show that an error affected his substantial rights,
Nasir must “‘show a reasonable probability that, but for the
error,’ the outcome of the proceeding would have been
different.”
Molina-Martinez v. United States
, 136 S. Ct.
certified copy of a prior Puerto Rico court judgment reflecting
that [the defendant] was convicted of a f elony in state court” at
trial and “read portions of it to the jury,” including the
sentence). The Dissent asserts that these cases are “inapposite”
because they did not feature
Old Chief
stipulations. (Dissent
at 14.) But whether there is an
Old Chief
stipulation is
irrelevant.
Old Chief
was explicit that it does not prevent the
introduction of evidence of a prior conviction “for any purpose
beyond proving status, ”
instruction on the elements of a § 922(g) offense, but we need
not consider those arguments, given our disposition of the
sufficiency-of-the-evidence challenge. Failure to instruct the
jury as to an element of the crime is trial error, and “[t]he
prosecution therefore is free to retry [the] defendant.”
McMullen v. Tennis
,
reasonably probable, if not certain, that the jury would not have found there was proof beyond a reasonable doubt of the knowledge-of-status element, if it had known it was required to consider that element.
The government nevertheless argues that the situation
here calls for a different result because the defendant stipulated
that he was a felon, pursuant to
Old Chief
, 519 U.S. 172.
According to the government, it was prohibited from giving
any further details about Nasir’s criminal record, so it could not
have adduced evidence that he knew of his status. That
argument echoes a concern raised by Justice Alito in his dissent
in
Rehaif
, in which he said that, now that the government has
to prove knowledge-of- status, “ under … [
Old Chief
], it is
questionable whether a defendant, by offering to stipulate that
he has a prior conviction, can prevent the prosecution from
offering evidence about the nature of that offense. And the
admission of that information may work to a § 922(g)
defendant ’ s detriment. ”
Rehaif
,
We do not, however, read anything in
Rehaif
, or
Old
Chief
itself, as suggesting that the government could not have
introduced knowledge-of-status evidence at trial. To the
contrary, the Supreme Court was explicit in
Old Chief
that its
restrictions on evidence concerning the defendant’s previous
felony applied “ only when the record of conviction would not
*54
be admissible for any purpose beyond proving status, ” so that
“ if, indeed, there were a justification for receiving evidence of
[the conviction] on some issue other than status (
i.e.
,
to prove
. . . ‘knowledge
, . . . ’ ), [then Federal Rule of Evidence] 404(b)
[would] guarantee[] the opportunity to seek its admission. ”
Nor did
Old Chief
preclude adding a simple knowledge-
of-status statement to the stipulations the government regularly
enters with defendants in § 922(g) cases. By its plain terms,
Old Chief
only prevents the government from presenting
evidence about the name or nature of t he defendant’s prior
felony conviction. A knowledge-of-status statement included
in a stipulation addresses neither of those things. Indeed, such
additional language need not reveal any information about a
defendant’s felonious past, only that he was awa re of it at the
time of the offense under consideration. Events in the real
world bear that out. As the Seventh Circuit has noted, “[i]n the
wake of
Rehaif
, defendants and the government have begun
agreeing to modified
Old Chief
stipulations that also include
knowledge of felon status.”
Maez
,
The government also argues that a fair inference, especially on plain- error review, is that Nasir’s acknowledgement of his conviction in the Old Chief stipulation means he also acknowledged he knew of his status as a felon ever since becoming one. But Rehaif itself blocks *55 that line of reasoning. [33] The Supreme Court said there that it did not believe “Congress would have expected defendants under § 922(g) … to know their own status[ ].” Rehaif , 139 S. Ct. at 2197. If one were to conclude otherwise, the Court said, “these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘ punishable by imprisonment for a term exceeding one year.’” Id. at 2198 (quoting 18 U.S.C. § 922(g)(1)).
In the natural course, a defendant agrees to an
Old Chief
stipulation after having committed the crime of unlawfully
possessing a firearm. Nasir’s stipulation, for example, post -
dates his offense by sixteen months. All the stipulation
demonstrates is that he knew he was a felon at the time he
signed the stipulation; based on the stipulation alone, it cannot
rightly be said that he knew of his status as a felon when he
possessed the firearms at issue.
[34]
In other words, a stipulation
*56
of the sort submitted in this case will not, on its own, suffice to
prove that, at the relevant time, the defendant had knowledge
of his status as a person prohibited to possess a firearm. was arrested with the gun[,]” it nonetheless asserts that “[a]
thoughtful observer drawing upon her reason, experience, and
common sense might easily infer from Nasir’s June 2017
stipulation that he knew of his felon status when apprehended
with a gun in December 2015.” (Dissent at 1 9-20 n.9.) How a
thoughtful observer would get to that conclusion at all, let
alone easily, can only be explained by going outside the trial
record. On the basis of what is in that record, only an illogical
leap could get to that conclusion. Again, Nasir entered into his
Old Chief
stipulation long after he was apprehended with the
guns, and he stipulated only that he was a felon; he did not
stipulate to his state of knowledge at the time of the alleged
crime. A thoughtful observer, therefore, would not – indeed
could not rightly infer knowledge-of-status at the relevant
time from the
Old Chief
stipulation, either alone or in
combination with anything else the Dissent can point to. There
simply is no basis for that inference in the trial record.
The government also argues that, because Nasir
agreed to an
Old Chief
stipulation, the situation is analogous to
one where the defendant invited the error. But that argument
is a non-starter since, under our precedent, the invited-error
doctrine does not apply where the law changes between trial
and appeal.
United States v. Andrews
,
The government tries to get around its lack of evidence by saying that, at trial, it showed Nasir was furtive about his drug dealing and so he must have known when he possessed his guns that he was a convicted felon. [36] But the inference simply does not follow. Criminal behavior is nearly always furtive; it’s in the very nature of the thing. Criminals know enough to hide their criminality, if they can. Nasir’s furtiveness proves only that he knew his drug dealing could get him into trouble, not that he knew he was a previously convicted felon. [37] If the government’s argument were accepted, prosecutors in a typical case involving drugs and guns could put on no more evidence than was offered before Rehaif and then, by calling the defendant’s behavior furtive, gain a conviction. That would render Rehaif a nullity and is *58 obviously not an option. Rehaif declares knowledge of status to be an element of a § 922(g) offense, and that cannot be ignored.
The Fourth Circuit has recently come to the same
conclusion. In
United States v. Medley
,
As was the Fourth Circuit in
Medley
, we are faced here
with a case in which there is no evidence at all on an essential
element of the felon-in-possession charge, and yet the case was
submitted to the jury and there was a conviction. We have said
in unmistakable terms that “ affirming a conviction where the
government has failed to prove each essential element of the
crime beyond a reasonable doubt ‘ affect[s] substantial
rights[.] ’”
United States v. Gaydos
,
b) Olano step four The final question, at Olano step four, is whether we should exercise our discretion to notice the error because it is of a sort that would “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Olano , 507 U.S. at 736. Given the significant due process and Sixth Amendment concerns at issue, which we have already discussed at length, we are convinced that it is indeed that sort of error.
The Supreme Court recently affirmed in Rosales- Mireles that an error need not “shock the conscience” or amount to a “powerful indictment of the system” to be “worthy of correction” at step four of a plain-error analysis. 138 S. Ct. *60 at 1906-07 (internal quotation marks omitted). Again, the Court said that “ Olano rejected a narrower rule that would have called for relief only” in cases “where a defendant is actually innocent.” Id. at 1906. It recognized instead “ a broader category of errors that warrant correction on plain-error review.” Id. Innocence or guilt, insofar as we may think we apprehend them based on the trial record, may have relevance, but our analysis at the fourth step “focus[ es] … on principles of fairness, integrity, and public reputation[.]” Id.
That means that sometimes the errors to be corrected are “inadvertent or unintentional errors of the court or the parties below.” Id. In Rosales-Mireles , the error was the District Court ’s miscalculation of the guidelines range at sentencing. Id. at 1905. Such errors had already been recognized as being likely to affect a defendant’s substantial rights , when considered under the third step of plain-error review. See Molina-Martinez , 136 S. Ct. at 1345 ( “ When a defendant is sentenced under an incorrect [g]uidelines range — whether or not the defendant’s ultimate sentence falls within the correct range — the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” ). The Supreme Court extended that reasoning to Olano step four, saying that “‘[t]o a prisoner,’ th[e] prospect of additional ‘ time behind bars is not some theoretical or mathematical concept’ … [and] thus warrants serious consideration in a determination whether to exercise discretion under Rule 52(b).” Rosales-Mireles , 138 S.C.t at 1907 (quoting Barber v. Thomas , 560 U.S. 474, 504 (2010) (Kennedy, J., dissenting)). The Court observed that “[ i]t is crucial in maintaining public perception of fairness and integrity in the justice system that courts exhibit regard for *61 fundamental rights and respect for prisoners as people.” Id. at 1907 (internal quotation marks omitted).
If a guidelines miscalculation warrants recognition of
plain error, surely a plain error of constitutional dimension
going to the conviction itself deserves to be recognized and
corrected. Nasir was deprived of the right to have a jury
*62
consider whether the government had proven him guilty
beyond a reasonable doubt on every element of the § 922(g)
charge. As forcefully described in the concurrence on this
point, upholding that outcome would amount to an appellate
court, in the jury’s stead, “mak[ing] a factual determination on
an unproven element of an offense by considering documents
outside the evidentiary record, ” in derogation of the Sixth
Amendment. (J. Matey Concurrence at 2.) Whether viewed as
a matter of the Fifth Amendment’s g uarantee of due process or
the Sixth Amendment ’s promise of trial by jury, or both, a
deprivation of those essential rights “seriously impugns ‘the
fairness,
integrity and public reputation of
judicial
proceedings[,] ’” and thus satisfies step four of
Olano
.
Gaydos
,
That cannot be swept aside because of dissatisfaction
with the rule that plain error is decided on the basis of the law
as it stands at the time of appeal.
See Johnson
,
guilty,” it should not sit well with thoughtful members of the public. Nor should our taking over the jury’s role, for the sake of efficiency. Disregarding constitutional norms may be taken as tantamount to saying that rules constraining the government really don’t count when we just know someone is guilty. *64 That is a message likely to call into question the fairness, integrity, and reputation of the justice system. We will therefore exercise our discretion to recognize the plain error in Nasir’s § 922(g) conviction.
4. The Remedy for the Plain Error We view this case as a misapprehension about the law one shared by everyone in the courtroom, and perhaps across the nation, until Rehaif . That misapprehension led to the government’s failure to present sufficient evidence to sustain the conviction. Though a failure of proof usually results in acquittal, the Double Jeopardy Clause is not implicated when as it is here, we believe it does bring the judicial process into disrepute to ignore what the Constitution requires. See id. (“[A]ffirming a c onviction where the government has failed to prove each essential element of the crime beyond a reasonable doubt … seriously impugns the fairness, integrity and public reputation of judicial proceedings.” (internal quotation marks omitted)). We are not as king for anything to be “automatic” but are taking this case on its facts, as the government and the defendant developed those facts at trial. That, we believe, is what the Supreme Court meant when it said in Puckett v. United States that “the fourth pron g [of Olano ] is meant to be applied on a case-specific and fact- intensive basis.” 556 U.S. 129, 142 (2009). By contrast, the Dissent does seem to have an automatic approach: invoking Olano automatically makes every constitutional protection a matter of pure discretion, for judges to ignore if they choose. See supra note 31.
the law has changed on appeal. Retrial is thus allowed and warranted. We will therefore vacate Nasir’s conviction on the § 922(g) count of the indictment, and we will remand for a new trial on that charge, at the government’s discretion.
III. CONCLUSION
The frustration of diligent prosecutors in this case is to
be expected and is fully justified. They did not know they had
*66
to, and hence did not, present evidence to the jury to prove that
the defendant knew he was a felon when he possessed a
firearm. Likewise, the burden on the busy District Court is
regrettable, since it too was operating on the then-widely
shared understanding of the elements of a § 922(g) offense.
Nevertheless, “[t]he prosecution’s failure to prove an essential
element of the charged offense [is] plain error [and]… a
miscarriage of justice.”
United States v. Castro
,
In sum, we will affirm Nasir’s conviction under the crack house statute and for possession with intent to distribute marijuana. We will vacate his sentence, as it was based on the application of the career offender enhancement that we have here concluded should not be applied, and we will vacate his conviction as a felon in possession of a firearm. Accordingly, we will remand for a new trial on that charge and for resentencing.
BIBAS, Circuit Judge , concurring in part.
Judges interpret the law. That applies to the U.S. Sentenc- ing Guidelines too . If the Sentencing Commission’s commen- tary sweeps more broadly than the plain language of the guide- line it interprets, we must not reflexively defer. The judge’s lodestar must remain the law’s text, not what the Commission says about that text.
So too here . The plain text of the Guidelines’ career - offender enhancement does not include inchoate crimes. The commentary says that it does. The majority rightly rejects this extra-textual invitation to expand a serious sentencing en- hancement, and I join Part II.D of its opinion.
But the narrow scope of today’s holding hints at a broader problem. For decades, we and every other circuit have fol- lowed the Supreme Court’s guidance in Stinson . That meant we gave nearly dispositive weight to the Sentencing Commis- sion’s commentary, not the Guidelines’ plain text. 508 U.S. at 44 – 46; see also, e.g. , United States v. Keller , 666 F.3d 103, – 09 (3d Cir. 2011); United States v. Boggi , 74 F.3d 470, 75 (3d Cir. 1996).
Now the winds have changed. In Kisor , the Supreme Court awoke us from our slumber of reflexive deference: agency in- terpretations might merit deference, but only when the text of a regulation is truly ambiguous. Before deferring, we must first exhaust our traditional tools of statutory construction. Any- thing less is too narrow a view of the judicial role.
We must look at things afresh. Old precedents that turned to the commentary rather than the text no longer hold. See *68 Hassen v. Gov’t of the V.I. , 861 F.3d 108, 114 n.5 (3d Cir. 2017) (noting that we may revisit our precedents when they conflict with intervening Supreme Court precedent). Tools of statutory interpretation have thus been thrust to the fore. And one tool among many stands out as well suited to the task: the rule of lenity. As we rework our Sentencing Guidelines cases, lenity is the tool for the job.
I. T HE R ULE OF L ENITY ’ S V IRTUES
As Chief Justice Marshall explained, the rule of lenity is
venerable. “The rule that penal laws are to be construed strictly,
is perhaps not much less old than construction itself.”
United
States v. Wiltberger
,
Under the rule of lenity, courts must construe penal laws
strictly and resolve ambiguities in favor of the defendant.
See,
e.g.
,
Liparota v. United States
,
The rule of lenity serves three core values of the Republic.
First, it is entwined with notice and thus due process.
See
McBoyle v. United States
,
Second is the separation of powers. As Chief Justice Mar- shall explained, the rule of lenity stems from “the plain princi- ple that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.” Wiltberger , 18 U.S. (5 Wheat.) at 95. If Congress wants to criminalize certain conduct or set certain penalties, it must do so clearly.
And third but perhaps most importantly, the rule of lenity
serves our nation’s strong preference for liberty. As Judge
Henry Friendly explained, lenity expresses our “instinctive dis-
taste against men languishing in prison unless the lawmaker
has clearly said they should.” Henry J. Friendly,
Mr. Justice
Frankfurter and the Reading of Statutes
,
in
Benchmarks 196,
209 (1967). That approach fits with one of the core purposes
of our Constitution, to “secure the Blessings of Liberty” for all
citizens. U.S. Const. pmbl. Penal laws pose the most severe
threats to life and liberty, as the Government seeks to brand
people as criminals and lock them away. To guard against
those threats, the rule of lenity favors respect for individual
rights.
Wiltberger
,
II. L ENITY , S ENTENCING , AND K ISOR
A n agency’s reading of its own regulation used to be almost
dispositive. That applied equally to the U.S. Sentencing Com-
mission and its commentary.
Stinson
,
A key tool in that judicial toolkit is the rule of lenity. Rather
than defer to the commentary, we should use lenity to interpret
ambiguous Guidelines. Even though the Guidelines are advi-
sory, they exert a law-like gravitational pull on sentences.
See
United States v. Booker
,
Lenity’s third, key purpose applies here. True, one can de-
bate the relevance of its first two purposes: whether the com-
mentary gives enough notice and whether congressional ap-
proval of guidelines with their commentary respects the sepa-
ration of powers.
Compare Mistretta v. United States
, 488 U.S.
361, 380 411 (1989),
with id.
at 422 – 27 (Scalia, J., dissenting).
But in any event, the presumption of liberty remains crucial to
guarding against overpunishment. When a guideline is ambig-
uous, the rule of lenity calls for adopting the more lenient of
two plausible readings. It hel ps ensure that “criminal punish-
ment . . . represents the moral condemnation of the commu-
nity.”
United States v. Bass
,
There is no compelling reason to defer to a Guidelines com- ment that is harsher than the text. Whatever the virtues of giv- ing experts flexibility to adapt rules to changing circumstances in civil cases, in criminal justice those virtues cannot outweigh life and liberty. Efficiency and expertise do not trump justice. Though expertise improves things for the future, sentencing re- quires justice tethered to the past. The rule of lenity takes prec- edence as a shield against excessive punishment and stigma.
That does not mean that lenity displaces all commentary. Only when a comment to an otherwise ambiguous guideline has a clear tilt toward harshness will lenity tame it. Some pro- visions may have no consistent tilt across all defendants. If so, Auer deference might still apply.
Here, however, the guideline’s plain text does not include inchoate offenses. The commentary says it does, making it harsher. So we rightly refuse to defer.
* * * * *
Courts play a vital role in safeguarding liberty and checking punishment. That includes reading the Sentencing Guidelines. Some provisions are ambiguous. But as Kisor teaches, instead of deferring to the commentary the moment ambiguity arises, judges must first exhaust our legal toolkit. This will require work; our old precedents relying strictly on the commentary no longer bind. In undertaking this task, we must not forget the rule of lenity.
MATEY, Circuit Judge , concurring.
I concur in the majority opinion in full and write separately as to Part II.E.
Start with this question: how many people serving on a jury in the United States know exactly what it means to be “ a felon? ” Most, we can guess, know that a felon has run into some trouble with the law. Others, that the person has been convicted of a crime. A particularly serious crime, at least some might say. But how many of the twelve would know the precise definition used by Congress in 18 U.S.C. § 922(g)(1), someone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ”? No matter, of course. The government will explain it all as it proves the elements of § 922(g). And along the way, a few jurors will be surprised to learn that a felony is a very particular kind of crime. That despite countless depictions in culture, both popular and timeless, a “felon” is not just a “villain . ” See, e.g. , Felon , Webster’s Third New International Dictionary 836 (1993).
Now ask a harder question: if at least some of those jurors need the arguments of a lawyer to get to the right meaning of “felon,” then will they all, unanimously and inevitably, conclude that the defendant knew it, too? Perhaps the government’s evidence does not add up. Recollections fade, records fail to materialize, witnesses flounder. Might not the defendant’s attorney find a chance to sow doubt?
Then, end with the most challenging question: what if those jurors never heard any evidence that the defendant knew he met the exacting definition of “felon” in § 922(g)? That is *74 the issue before us today, an issue that has in recent years appeared throughout the federal courts. And I believe it requires us to properly frame the question presented. On the one hand, we can view the issue as whether the fourth prong of Olano ’s standard of review for plain error should allow an appellate court to “look outside the record” to find proof of guilt that would affirm an otherwise invalid conviction. On the other hand, we can ask whether the Sixth Amendment as originally understood includes an exception to the guarantee that an impartial jury determines a defendant ’s guilt. An exception that allows appellate courts to independently find an element of an offense proven beyond a reasonable doubt, using proof never presented to the jury.
It is an important distinction because when confronted with a novel question of constitutional law, that is, one not directly controlled by precedent, we should ask if the original understanding of the Constitution tolerates a certain result. No court, it appears, has considered whether the Sixth Amendment, as originally understood, allows judges to make a factual determination on an unproven element of an offense by considering documents outside the evidentiary record. Applying that test, I have sufficient doubt that the scope of judicial authority imagined by the Framers reaches past the horizon of the Sixth Amendment’s guarantee . And I do not read Olano , as best understood in light of the history of the plain error doctrine, to allow for a result contrary to the original understanding of the Sixth Amendment. For those reasons, as I explain below, I concur.
I. T HE S IXTH A MENDMENT
A. The Original Understanding of the Right to a Jury
Trial
“Only a jury, acting on proof beyond a reasonable
doubt, may take a person’s liberty. That promise stands as one
of the Constitution’s most vital protections against arbitrary
government.”
United States v. Haymond
,
that drove the Stamp Act Congress of 1765 to pronounce that “trial by jury is the inherent and invaluable right of every British subject in these colonies.” Resolutions of the Stamp Act Congress § 7 (1765) reprinted in Select Charters and Other Documents Illustrative of American History 1775, 315 (William McDonald ed., 1906); see also “To Benjamin Franklin from Charles Thomson, Sept. 24, 1765,” Founders Online , National Archives, https://founders .archives.gov/documents/Franklin/01-12-02-0149 (“It is not *76 property only we contend for. Our Liberty and most essential privileges are struck at: Arbitrary courts are set over us, and trials by juries taken away.”); and see “To Benjamin Franklin from Thomas Wharton, June 24, 1765 ,” Founders Online , National Archives, https://founders.archives.gov/documents /Franklin/01-12-02-0091 (objecting to a single judge deciding what was “heretofore only to be Assertained by a trial by Jury; and thereby depriving Us, of one of the most Essential priviledges of An Englishman.”). This “essential privilege” enjoyed by the colonists “by the immutable laws of nature” included entitlement “ to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.” Declaration and Resolves of the First Continental Congress Resolution 5 (1774), available at https://avalon.law .yale.edu/18thcentury/resolves.asp; see also Declaration and Resolves of the First Continental Congress (noting that Britain passed “several acts” which “deprive the American subject of trial by jury” and “deprive[] the Americ an subject of a constitutional trial by jury of the vicinage”). As the evidence for independence mounted, the right to jury trial emerged as profound motivation for the colonies to join in revolt. “IV. The Declaration as Adopted by Congress, [6 July 1775], ” Founders Online , National Archives, https://founders.archives.gov /documents/Jefferson/01-01-02-0113-0005 ( “Statutes have been passed . . . for depriving us of the accustomed and inestimable Privilege of Trial by Jury in Cases affecting both Life and Pro perty”). It would become a cornerstone of a “new Government,” one of the foundational principles “most likely to effect . . . Safety and Happiness.” The Declaration of *77 Independence ¶ 1, 19 (1776) (“For depriving us in many cases, of the benefits of Trial b y Jury”).
With freedom won, the future of the right to trial by jury
became a central cause for supporters and opponents of the
Constitution. Writing as
Phocion
to persuade New York to
ratify, Alexander Hamilton urged, “Let us not forget that the
constitution declares that trial by jury in all cases in which it
has been formerly used, should remain inviolate forever[].”
Second Letter from Phocion, [Apr. 1784],
Founders Online
,
National Archives, https://founders.archives.gov/documents
/Hamilton/01-03-02-0347. Fearing a loss of the jury stirred
Anti- Federalist Patrick Henry to exclaim: “Why do we love
this trial by jury? Because it prevents the hand of oppression
cutting you off.” 3 Debates on the Adoption of the Federal
Constitution 545 (Philadelphia, Jonathan Elliot ed., 1836)
(1787) (statement of Patrick Henry));
see also
Nathaniel
Breading, Edmund Randolph, and Samuel Bryan,
Observations on the Proposed Constitution for the United
States of America 23 , 1788 (“We abhor the idea of losi ng the
transcendent privilege of trial by jury.”). Indeed, “[t]he friends
and adversaries of the plan of the Convention, if they agree in
nothing else, concur at least in the value they set upon the trial
by jury; or if there is any difference between them it consists
in this: the former regard it as a valuable safeguard to liberty;
the latter represent it as the very palladium of free
government.” Alexander Hamilton, The Federalist No. 83. And
so the Anti-Federalists campaigned vigorously to formally
recog nize the right to jury trial as “essential in every free
country, that common people should have a part and share of
influence, in the judicial as well as in the legislative
department.” Letters From The Federal Farmer (IV), in 2 The
*78
person could be found guilty of a serious crime unless ‘the truth
of every accusation . . . should . . . be confirmed by the
unanimous suffrage of twelve of his equals and neighbors,
indifferently chosen, and superior to all suspicion.’”
Ramos v.
Louisiana
, 140 S. Ct. 1390, 1395 (2020) (citing 4 W.
Blackstone, Commentaries on the Laws of England *343
(1769)). And so t he Constitution’s jury trial guarantee
“reflect[s] a fundamental decision about the exercise of official
power — a reluctance to entrust plenary powers over the life and
liberty of the citizen to one judge or to a group of judges.”
Duncan v. Louisiana
,
The Sixth Amendment provides, “ as its most important element, the right to have the jury, rather than the judge, reach Complete Anti-Federalist 249 (Herbert J. Storing ed., 1981); see also Letters From The Federal Farmer (XV), in 2 The Complete Anti-Federalist 320 (Herbert J. Storing ed., 1981) (“Juries are constantly and frequently drawn from the body of the people, and freemen of the country; and by holding the jury ’ s right to return a general verdict in all cases sacred, we secure to the people at large, their just and rightful controul in the judicial department.”). As summed up by Thomas Jefferson, “[a]nother apprehension is that a majority cannot be induced to adopt the trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.” “From Thomas Jefferson to Thomas Paine, 11 July 1789,” Founders Online , National Archives, https://founders.archives.gov/documents /Jefferson/01-15-02-0259.
the requisite finding of ‘guilty.’”
Sullivan v. Louisiana
, 508
U.S. 275, 277 (1993) (citing
Sparf v. United States,
156 U.S.
51, 105 – 06 (1895)). From this flows the “unmistakable”
condition that a “j ury must reach a unanimous verdict in order
to convict.”
See Ramos
,
As Justice Scalia so aptly analogized, “[w]hen this
Court deals with the content of th[e] [right to jury] guarantee —
the only one to appear in both the body of the Constitution and
the Bill of Rights — it is operating upon the spinal column of
American democr acy.”
Neder v. United States
,
Now suppose the defendant is tried for first-degree
murder. The defendant acknowledges he is the killer, but the
jury finds that he did not act with malice aforethought, and
returns a not guilty verdict. Wait, argues the government, all
the elements for an uncharged lesser crime are found in the
record. So the prosecution appeals and asks those same wise
judges to simply find the defendant guilty of another crime. No
again, answers the student. Or perhaps the jury just can’t decide
one way or another. Nine say that he definitely did it; three say
that there’s no way. Like a low inside curve, can a judge make
the call that decides the matter? No, because the jury verdict
must be unanimous, a point recently steadied by the Supreme
Court.
Ramos
,
What about a defendant acquitted over an “erroneous addition of a statutory element”? Evans v. Michigan , 568 U.S. 313, 316 (2013) (emphasis added). Can the government appeal? No, because “our cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense,” even if that purported insufficiency turns on an extraneous element of the offense. Id. at 318. Indeed, an acquittal must stand even if “predicated upon a clear misunderstanding of what facts the *81 [prosecution] needed to prove under [governing] law,” without regard to “whether the court’s decision flowed from an incorrect antecedent ruling of law,” and even when “the product of an erroneous interpretation of governing legal principles.” Id. at 320 (internal quotation marks omitted).
Try another: suppose after the defendant is convicted it becomes clear that the prosecution charged and proved less than every essential element of the offense. No problem, says the government, most of the elements were proven. And a guilty verdict that “omits an element of the offense,” the Supreme Court has concluded , “does not necessarily render a criminal trial fundamen tally unfair.” Neder , 527 U.S. at 9. After all, it would be awfully burdensome to retry the case just to prove what everyone seemingly already knows.
But this time, the government notes, there’s a catch: there is no evidence in the record that could prove the missing element. There is other reliable proof, however, outside the trial record that establishes the unproven portion of the crime. Can a court consider this material — information everyone agrees the jury never saw — and then find the defendant guilty beyond a reasonable doubt? Well, the answer is complex. In the past, tests have weighed cardinal constitutional guarantees against judicial efficiency and the chance of success on retrial. See id. at 15 (“We do not think the Sixth Amendment requires *82 us to veer away from settled precedent” to grant “[r]eversal without any consideration of the effect of the error upon the verdic t[.]”) . More recently, the Supreme Court recoiled at even the suggestion of such a balancing test. See Ramos , 140 S. Ct. at 1402 (“When the American people chose to enshrine [the Sixth Amendment] in the Constitution, they weren’t suggesting fruitful topics for future cost- benefit analysis.”) . All of which brings us to Malik Nasir.
II. T HE D OCTRINE OF P LAIN E RROR R EVIEW
There is no disagreement about the road leading to this
case. In
Rehaif v. United States
, the Supreme Court held “that
the Government must prove that a defendant charged with
violating [18 U.S.C.] § 922(g) knew both that he possessed a
firearm and that he belonged to the relevant class of persons
barred from possessing a firearm. ”
In re Sampson
, 954 F.3d
159, 161 (3d Cir. 2019) (per curiam) (citing
Rehaif v. United
States
,
elements beyond a reasonable doubt: First, that the defendant has been convicted of a felony, that is, a crime punishable by imprisonment for a term exceeding one year; Second, that after this conviction, the defendant knowingly possessed the firearm described in Count Three of the Indictment; and Third, that the defendant ’ s possession was in or affecting interstate or foreign commerce.” (App. at 615 16.) But see Rehaif , 139 S. Ct. at 2201, 2213 (Alito, J.,
dissenting) (“A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of harmless-error review ,” and “[t]hose for whom direct review has not ended will likely be entitled to a new trial.” (emphasis added)).
A. The Original Understanding of Plain Error Review
The current authority of a federal appellate court to
notice unpreserved error grew from the early practices of the
Supreme Court. By the late nineteenth c entury, the Court’s
general rule confining review “ to a discussion of the errors
stated ” still permitted the Court, “ at its discretion, [to] notice
any other errors appearing in the record.”
Using that authority, the Court applied the plain error rule to invalidate a constitutionally infirm conviction. Wiborg v. United States , 163 U.S. 632, 658 (1896). In Wiborg , the Court spoke of the judicial “liberty” to review questions “not properly raised” if “ a plain error was committed in a matter so absolutely vital to defendants.” Id . The Court reaffirmed that perspective in Clyatt v. United States , holding that Wiborg “justifies u s in examining the question in case a plain error has been committed in a matter so vital to the defendant. ” 197 U.S. 207, 221 22 (1905). See also Crawford v. United States , 212 *85 U.S. 183, 194 (1909) ( “[Courts] will, in the exercise of a sound discretion, sometimes notice error in the trial of a criminal case, although the question was not properly raised at the trial by objection and exception. ” ); Brasfield v. United States , 272 U.S. 448, 450 (1926) ( “ [F]ailure of petitioners ’ counsel to particularize an exception to the court ’ s inquiry does not preclude this Court from correcting the error .” ). And this focus on issues “vital” to the defendant flows directly from the guarantees of the Constitution. Those commitments make the plain error rule “n ot a rigid one, ” and courts have had “ less reluctance to act under it when rights are asserted which are of such high character as to find expression and sanction in the Constitution or Bill of Rights. ” Weems v. United States , 217 U.S. 349, 362 (1910). The plain error rule, as first applied by the Supreme Court, recognizes “[t]he right of trial by Jury is a fundamental law, made sacred by the Constitution,” and enjoyed by all persons before the Founding. Vanh orne’s Lessee v. Dorrance , 2 Dall. 304, 309 (Patterson, Circuit Justice, C.C.D.Pa.1795) (discussing the language of the 1790 Constitution of the Commonwealth of Pennsylvania mirroring the Sixth Amendment). Jury trials are a firewall against a process that would devalue natural rights, unsuitable for sacrifice on the altar of efficiency.
But though conceived as a reminder of the highest
principles of ordered liberty, the plain error doctrine pivoted in
United States v. Atkinson
,
B. The Text of Rule 52(b)
The turn did not take. Rule 52(b) codified the plain error
doctrine in 1944, choosing fundamental rights over structural
anxieties by shedding the baggage of
Atkinson
in favor of a
straightforward definition: “[a] plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.” Fed. R. Crim. P. 52(b). It is,
of course, “the text of the Rule that controls.”
Krupski v. Costa
Crociere S.p.A.
, 560 U.S. 538, 557 (2010) (Scalia, J.,
concurring in part). Rule 52(b) limits the power to notice
unpreserved errors to only those affecting “substantial rights.”
That language traces straight back to
Wiborg
.
See, e.g.
,
Storgard v. France & Canada S.S. Corp.
,
C. The Olano Framework
Despite all of this, the Court would later state that “the
‘standard laid down in
United States v. Atkinson
[was] codified
in [Rule] 52(b).’”
United States v. Olano
,
Recent applications of Rule 52(b) have focused on its
discretionary character.
See Johnson
, 520 U.S. at 469 – 70
(“When the first three parts of
Olano
are satisfied, an appellate
court must then determine whether the forfeited error
‘seriously affect[s] the fairness , integrity or public reputation
of judicial proceedings’ before it may exercise its discretion to
correct the error.”) (citing
Olano
,
That, in my view, is the best reading of Olano , one that harmonizes the guarantees of the Sixth Amendment and the tradition of noticing errors that, though unpreserved, uniquely threaten fundamental rights. Not one that licenses endless tradeoffs to efficiency. Rather, as the Supreme Court recently cautioned, while “[t]here may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction,” we must perform a “searching” inquiry. Rosales-Mireles v. United States , 138 S. Ct. 1897, 1909 (2018) (emphasis added). Searching should, as always, begin with the original public understanding of the right in question. Looking to that history, I conclude that *89 allowing an appellate court to find facts and inferences outside the record to rescue a conviction that all agree lacked an essential element of proof usurps the role of the jury and therefore cannot be a countervailing factor under Olano . Put simply, it is difficult to imagine a countervailing consideration more fundamental than the fundamental right to a trial by jury secured by the Constitution.
III. C ONTRACTING P LAIN E RROR R EVIEW IS
I NCONSISTENT WITH H ISTORY AND T RADITION
In many respects, we have already traveled far from the
guarantees of the Sixth Amendment to the conclusion that
failing to submit every element of a crime to the jury does not
“ seriously affect the fairness, integrity, or public reputation of
judicial proceedings.”
Johnson
,
But we have no such evidence to reach for. To uphold
Nasir’s conviction, we must supplement the evidentiary record
with information never presented to the jury. “ The most [we]
can conclude is that a jury
would surely have found
petitioner
guilty beyond a reasonable doubt —not that the jury’s actual
finding of guilty beyond a reasonable doubt
would surely not
have been different
absent the constitutional error.”
Sullivan
,
This history is reason alone to decline a fresh
contraction of the plain error doctrine. The theory of plain error
review exists, as must all laws, as a validation of our natural
and fundamental rights. It is best imagined as a shield against
arbitrary expansions of government, not a sword of efficiency
striking at the very impediments to easier oppression
demanded by the Framers, Ratifiers, and People. Failing to
notice error here would necessarily contravene the original
understanding of the Sixth Amendment and, therefore,
necessarily flout the rule of
Olano
prohibiting courts to ignore
errors that “seriously affect the fairness, integrity or public
repu tation of judicial proceedings.”
Olano
,
Many courts have held differently. Some say it is of no
moment that the government did not prove knowledge because
it is obvious the defendant knew he was a felon. Reliable
records tell us so, they say, and disregarding what a jury did
not see would jeopardize the fairness, integrity, and reputation
of the proceedings.
See, e.g.
,
United States v. Miller
, 954 F.3d
551, 558 (2d Cir. 2020). Others conclude that “because
convicted felons typically know they’re convicted felons,” any
error is “almost always harmless.”
United States v. Lavalais
,
*92
960 F.3d 180, 188 (5th Cir. 2020);
see also United States v.
Gary
, 963 F.3d 420, 423 (4th Cir. 2020) (Wilkinson, J.,
concurring) ( “[T] he vast majority of defendants who will seek
to take advantage of a structural
Rehaif
error are perfectly
aware of their felony status. Felony status is simply not the kind
of thing that one forgets. ”). Still others find post-
Rehaif
extra-record review to be a natural evolution to reviewing
documents outside the record at sentencing.
See United States
v. Reed
,
Perhaps. But I do not read these post- Rehaif cases to proceed from the common law tradition of plain error review and, as a corollary, the original understanding of the Sixth Amendment. I find no evidence that the guarantees enumerated in the Bill of Rights are measured for modern efficiency. To the contrary, our Framers expected these rights would protect us all from encroachment by the government they hesitantly accepted. That fear explains why, “ [w]hen our more immediate ancestors removed to America, they brought this great privilege with them, as their birth-right and inheritance, as a part of that admirable common law, which had fenced round, and interposed barriers on every side against the approaches of arbitrary power.” 3 J. Story, Commentaries on the Constitution of the United States § 1773, at 652 53 (1833); see also Thompson v. Utah , 170 U.S. 343, 350 (1898) ( “ The trial per pais, or by a jury of one ’ s country, is justly esteemed one of the principal excellencies of our constitution; for what greater security can any person have in his life, liberty, or estate than to be sure of the being devested of nor injured in any of these without the sense and verdict of twelve honest and impartial men of his neighborhood? ” (quoting Juries, 3 Matthew Bacon, A New Abridgment of the Law (1736)). Put simply: “If you’re *93 charged with a crime, the Sixth Amendment guarantees you the right to a jury trial. From this, it follows that the prosecutor must prove to a jury all of the facts legally necessary to support your term of incarceration.” Hester v. United States , 139 S. Ct. 509, 509 (2019) (Gorsuch, J., dissenting).
For that reason, I prefer the certainty of the “great
rights” Madison captured in the Constitution, including “trial
by jury, freedom of the press, [and] liberty of conscience. ” 1
Annals of Cong. 453 (1789) (Joseph Gales ed., 1834). Rather
than see them eroded, I find “it is proper that every
Government should be disarmed of powers which trench upon
those particular rights.”
Id.
at 458. While that differs from the
conclusions of other courts, we should recall that “[t]hose who
wrote our constitution[] knew from history and experience that
it was necessary to protect against unfounded criminal charges
. . . and against judges too responsive to the voice of higher
authority.”
Duncan
,
IV. C ONCLUSION
I readily acknowledge that retrying defendants like Nasir might end up with juries returning the same verdict of guilt. But isn’t that the point? Like Justice Scalia, and Blackstone long before him, I bear deep reservations about any holding that “scorn[s]” our “formal requirements . . . whe n they stand in the way of expediency.” Neder , 527 U.S. at 39 40 (citing 4 W. Blackstone, Commentaries *350 (“[H]owever convenient [intrusions on the jury right] may appear at first, (as, doubtless, all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial *94 matters[.] ”). Pillars of liberty are rarely toppled, but sanded down into forms unrecognizable to their creator. The right to be judged by impartial peers under the due process of law stands as an antagonist against such erosion, and “[s]o long . . . as this palladium remains sacred and inviolable, the liberties of a free govern ment cannot wholly fall.” 3 J. Story, supra § 1774, at 653 (citing 4 Blackstone Commentaries at *349 50).
For all these reasons, I conclude that “ [i]n the end, the best anyone can seem to muster . . . is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. ” Ramos , 140 S. Ct. at 1408 (plurality opinion). I therefore concur.
PORTER, Circuit Judge , joined by SMITH, Chief Judge , CHAGARES, HARDIMAN, SHWARTZ, BIBAS, and PHIPPS, Circuit Judges , concurring in part and dissenting in part.
I concur with Sections I and II.D of the majority opin- ion. But I depart from the majority’s plain -error discussion in Section II.E because it is profoundly mistaken, it dismisses the collective wisdom of nearly every other circuit court, and — ironically — it derogates the fairness, integrity, and public rep- utation of judicial proceedings. After reviewing the entire rec- ord, I would affirm Malik Nasir’s conviction rather than re- mand it for a pointless retrial.
I. A DDITIONAL B ACKGROUND
A. Nasir pleaded guilty to felony charges on three separate occasions and actually served over seven years ’ imprisonment On September 6, 2000, Nasir pleaded guilty to attempt- ing to possess cocaine with intent to distribute. As a result of his guilty plea and felony conviction, Nasir was sentenced to seven years ’ imprisonment. After serving one year in prison, his sentence was suspended, and he was placed on supervised probation.
On June 21, 2001, Nasir pleaded guilty to possession of cocaine with intent to distribute. As a result of his guilty plea and felony conviction, Nasir was sentenced to ten years ’ and thirty days ’ imprisonment. After serving eighteen months in prison, his sentence was suspended and he was placed on su- pervised probation.
On June 20, 2007, Nasir pleaded guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). As a result of his guilty plea and felony convic- tion, Nasir was sentenced to eighty-four months ’ imprison- ment. He actually served five and one-half years of that sen- tence before being released on December 14, 2012.
B. Nasir stipulated to his prior felony conviction and did not make a scienter objection at trial In 2015, Nasir was indicted for violating the felon-in- possession statute, together with several drug-related charges. At his 2017 trial, Nasir stipulated that he had been “convicted of a felony crime punishable by imprisonment for a term ex- ceeding one year, in the United States District Court for the Eastern District of Virginia.” S.A. 21. Although Nasir’s stipu- lation did not specify the prior felony conviction, it was for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) — the same crime for which he was being tried. Nasir’s stipulation prevented the government from intro- ducing evidence to prove the nature and circumstances of his prior felony conviction. See Old Chief v. United States , 519 U.S. 172, 174 75 (1997).
Under the law at the time of Nasir’s trial, t he govern-
ment adduced sufficient evidence to secure a conviction under
§ 922(g)(1) and the district court properly instructed the jury
on the elements of that crime. Nasir did not object to the district
court’s jury instruction or to the sufficiency of the govern-
ment’s evidence on the § 922(g)(1) charge. But while his ap-
peal was pending the Supreme Court decided
Rehaif v. United
States
,
II. N ASIR C ANNOT S ATISFY O LANO P RONG F OUR , S O
H IS C ONVICTION S HOULD B E A FFIRMED A. The purpose of plain-error review
The majority duly notes that because Nasir did not ob-
ject to the sufficiency of the evidence on the knowledge-of-
status element, we review for plain error. Maj. Op. 27. But the
majority fails to consider the reason for plain-error review and
how that reason informs our decision. Federal Rule of Criminal
Procedure 52(b) exists to promote compliance with claim-
presentation rules. When a defendant forfeits an issue by fail-
ing to timely object, we have discretion to correct the plain er-
ror. But that discretion is bounded by the four factors discussed
in
United States v. Olano
,
The link between forfeiture and plain-error review is
relevant here because Nasir failed to raise a knowledge-of-sta-
tus objection at his trial. True, the Supreme Court did not
change the rule until two years later when it decided
Rehaif
.
But even if a solid wall of circuit authority makes objection at
trial apparently futile, Rule 52(b) applies when the source of
plain error is a supervening decision.
Johnson v. United States
,
520 U.S. 461, 468 (1997).
Contra United States v. Keys
, 95
F.3d 874, 878 (9th Cir. 1996) (Rule 52(a), rather than Rule
52(b), governs appellate review of unpreserved error when de-
fendant “ faced with a solid wall of circuit authority” at trial),
vacated
,
Contrary to the majority’s suggestion , Maj. Op. 28 – 30,
the scienter issue was hardly a secret at the time of Nasir’s trial .
The Supreme Court highlighted the constitutional importance
of
mens rea
in
Staples v. United States
,
In our circuit, a district court anticipated
Rehaif
by a
decade, holding that in a § 922(g)(1) prosecution the govern-
ment must prove that the defendant knew of his felon status.
United States v. Kitsch
, No. 03-594-01,
Even though a timely scienter-based objection would
likely have been overruled in 2017, the objection itself could
have prompted the government to supplement the record with
additional evidence of Nasir’s
mens rea
.
See Pfeifer v. Jones &
Laughlin Steel Corp.
, 678 F.2d 453, 457 n.1 (3d Cir. 1982)
( contemporaneous objection rule “affords an opportunity for
correction and avoidance in the trial court in various ways: it
gives the adversary the opportunity either to avoid the chal-
lenged action or to present a reasoned defense of the trial
court’s action; and it provides the trial court with th e alterna-
tive of altering or modifying a decision or of ordering a more
fully developed record for review”),
judgment vacated on other
grounds
,
B. The nature of plain-error review
Rule 52(b) gives us discretion to correct plain error in
such cases, but the rule is “permissive, not mandatory.”
Olano
,
The majority’s parsimonious view of our Rule 52(b)
discretion is contrary to Supreme Court precedent. We are to
correct plain errors “sparingly,”
Jones v. United States
, 527
U.S. 373, 389 (1999), and only in “exceptional circumstances , ”
United States v. Atkinson
,
The reviewing court’s exercise of prong-four discretion
is an independent barrier to relief on a forfeited claim of error.
Even “a plain error affecting substantial rights does not, with-
out more, satisfy the
Atkinson
standard, for otherwise the dis-
cretion afforded by Rule 52(b) would be illusory.”
Olano
, 507
U.S. at 737. Regrettably, we have sometimes conflated prongs
three and four with little to no separate prong-four analysis.
See
United States v. Gaydos
, 108 F.3d 505, 509 (3d Cir. 1997)
(suggesting, without any prong-four analysis, that the plain er-
ror automatically satisfied prong four);
Xavier
,
This case affords a rare opportunity for the en banc
Court to disavow such imprecision and fine-tune its approach
to plain-error review. Alas, the majority exacerbates the prob-
lem by declaring that the plain error in Nasir’s case derogated
his substantial rights
thus
satisfying
Olano
step four. Maj. Op.
62 (citing
Gaydos
, 108 F.3d at 509). Rather than conduct “a
*101
case-specific and fact- intensive” review in light of the entire
record,
Puckett
,
C. Plain-error review requires consideration of the entire record
Casting aside the case-specific and fact-intensive ap-
proach required by
Puckett
, the majority asserts that “constitu-
tional norms” require error -correction because the Supreme
Court ’s decision in
Rehaif
retroactively created due process
concerns. Maj. Op. 62. But framing the plain error as a due-
process violation does not automatically satisfy
Olano
prong
three or four.
See United States v. Marcus
,
The Court in
Johnson
held only that an error that was
not plainly incorrect at the time of trial becomes plain when the
law is subsequently clarified.
Johnson
,
Indeed, having found that the error was plain, the Court
in
Johnson
assumed without deciding that
Olano
prong three
was satisfied and denied relief under prong four because the
error did not “seriously affect [] the fairness, integrity or public
reputation of judicial proceedings.”
Johnson
,
Second, in making that finding the Court did not confine
its review to information available only at the time of trial. Ra-
ther, it noted that “[ m]ateriality was essentially uncontroverted
at trial
and has remained so on appeal
.”
Johnson
, 520 U.S. at
470 (emphasis added) (footnote omitted). Reviewing the case
under the prong-four standard, the Court considered whether
petitioner made a plausible showing
[2]
— not just at trial but
*103
afterwards, before the Eleventh Circuit or the Supreme
Court — that the false statement for which she was convicted
was not material.
Id.
Satisfied that she had not, the Court af-
firmed the court of appeals’ exercise of i ts discretion to decline
to correct the plain error. So while the “ plainness ” of an error
(prong two) is pegged to the time of trial, the broader question
whether the plain error seriously affects the fairness, integrity,
and public reputation of judicial proceedings (prong four) has
a longer time horizon extending throughout the appeal process.
See Henderson
,
The majority attempts to narrow the discretion provided by Rule 52(b) by ignoring its expansive text and cabining its temporal scope. Throughout its opinion, the majority insists that the discretion afforded by Rule 52(b) must be restricted to the time of the trial itself and to facts in the trial record. This is necessary, the majority warns, to avoid trampling on Fifth and Sixth Amendment rights in violation of In re Winship , 397 U.S. 358 (1970). Maj. Op. 32 – 33.
The majority misapprehends the nature and purpose of
plain-error review, particularly at prong four. We do not pur-
port to “find facts” in order to overcome a deficiency in the
evidence and on that basis pronounce th e defendant’s convic-
tion while relieving the government of its burden. Rather, as is
clear from the entire line of plain-error cases before and after
Olano
, there is a material difference between our remedial
prong four.
See, e.g.
,
United States v. Greenspan
, 923 F.3d
138, 154 56 (3d Cir. 2019);
United States v. W. Indies Transp.,
Inc.
,
discretion under Rule 52(b) and the jury’s factfinding role at trial. At prong four, we answer a question that no jury could ever appropriately entertain: whether, considering the entire record, reasonable observers would conclude that declining to correct the plain error creates a miscarriage of justice or would seriously affect the fairness, integrity, and public reputation of judicial proceedings generally.
Conversely, remanding for retrial on an uncontestable element may be “[t]he real threat” to fairness and undermine the reputation of judicial proceedings — a powerful truism that the majority does not acknowledge. United States v. Cotton , 535 U.S. 625, 634 (2002); see also Dominguez Benitez , 542 U.S. at 82 (plain- error review should enforce Rule 52(b)’s pol- icy of reducing “wasteful reversals”).
The majority’s misconception of plain-error review in- fects its entire discussion of the record that we review under Rule 52(b). Because the majority regards plain-error review as a kind of extension of the jury trial rather than a discretionary act tethered to Rule 51(b)’s forfeiture rule, it fixates on Winship ’s requirement of proof beyond a reasonable doubt in criminal trials. Maj. Op. 32 37. Were we reviewing Nasir’s conviction for sufficiency of the evidence, the majority’s scru- ples would be more persuasive. But we are merely exercising remedial discretion over a forfeited objection, so unless the *105 majority intends to attack the constitutionality of Rule 52(b) generally, its analysis is misdirected.
D. By limiting plain-error review to the trial rec-
ord, the majority creates a per se rule requir-
ing error correction
We evaluate a claim of plain error “against the entire
record” because “[i]t is simply not possible for an appellate
court to assess the seriousness of the claimed error by any other
means.”
Young
,
The majority’s crucial move— limiting the scope of our
prong-four review — is dispositive in appeals from
Rehaif
-
infected felon-in-possession convictions where, as here, the de-
fendant stipulated to his felon status. Because of Nasir’s stipu-
lation, the government was precluded from adducing evidence
relating to the nature and circumstances of his prior felony con-
victions.
Old Chief
, 519 U.S. at 174 75. For the reasons
*107
explained in
Old Chief
, shielding Nasir in that manner was ap-
propriate at his jury trial. But post-trial, the unfair-prejudice
and jury-misleading rationales of Federal Rule of Evidence
403 no longer obtain, which highlights the tension between
Rehaif
and
Old Chief
that Justice Alito noted in his
Rehaif
dis-
sent.
Rehaif
,
Allowing Nasir to deploy
Old Chief
offensively itself
adversely affects the fairness, integrity, and public reputation
of judicial proceedings. But limiting our prong-four review to
the trial record is even more consequential. By short-circuiting
the
Olano
analysis at step three, the majority predestines the
result in appeals of
Rehaif
-infected felon-in-possession convic-
tions involving an
Old Chief
stipulation — always in favor of
error-correction. The combination of
Old Chief
and the major-
ity’s insistence that we may consider only the trial record , even
at prong four, creates a per se rule requiring remand in every
such case . That is precisely the type of “flawed” approach that
the Supreme Court has disapproved because it renders our
prong- four discretion “illusory.”
Olano
, 507 U.S. at 737;
Young
,
Given the Supreme Court’s clear and repeated admoni-
tions, the majority offers assurance that it is not advocating the
adoption of a per se rule. Maj. Op. 50 n.29. But that disclaimer
is meaningless; whether the majority intends to “advocate” the
adoption of a per se rule, it has in fact created one. Gamely
trying to demonstrate the flexibility of its per se rule, the ma-
jority offers two examples “where sufficient e vidence was pre-
sented at trial to show that the defendant was aware of his status
*108
as a felon at the time of the crime. ”
Id.
(citing
United States v.
Moss
,
Throughout its opinion, the majority discounts the im- pact of Nasir’s Old Chief stipulation. Maj. Op. 47 n.26 (“[W]e think the existence of an Old Chief stipulation has little rele- vance to the analysis . . . .”). That is a massive blind spot.
Because defendants typically avail themselves of
Old Chief
when they have multiple or damning
felony records, it should come as no surprise that
a reviewing court, conducting plain-error review,
will find that the fairness, integrity, or public rep-
utation of judicial proceedings has not been af-
fected, when considering evidence of the defend-
ant’s felony status beyond just the trial record.
United States v. Miller
,
The majority has no answer to the outsized role of Old Chief in this case, except to implausibly suggest that Nasir’s stipulation did not prevent the government from introducing his knowledge-of-status at trial. Maj. Op. 50 n.29. But pre- cisely because of Nasir’s stipulation, t he trial court would al- most certainly have sustained the inevitable unfair-prejudice objection because the evidence proving his felon status and *109 knowledge of status is substantially the same, or at least inex- tricably intertwined.
E. The “entire record” is broader than the trial record
The majority leans heavily on Johnson for its holding that we may consider only the trial record on plain-error re- view, rather than the entire record. Maj. Op. 34 – 35. But Johnson was not a felon-in-possession case, so the trial record was not constrained by Old Chief . As a result, the evidence supporting materiality was so “overwhelming” that petitioner had “no plausible argument” at trial or on appeal. Johnson , 520 U.S. at 470. The lack of an Old Chief stipulation is highly rel- evant to the analysis in Johnson and distinguishes it from this case.
The majority’s discussion of
Neder v. United States
,
Our sister circuits understand this quite well. As the ma-
jority concedes, the Second, Fifth, Sixth, Seventh, Eighth,
Ninth, and Eleventh Circuits have repeatedly affirmed jury ver-
dicts in § 922(g) cases and rejected arguments similar to those
accepted by the majority.
Miller
,
At last count, 140 appellate judges and 15 district judges
sitting by designation have voted to uphold a felon-in-posses-
sion conviction on plain-error review of a
Rehaif
claim. How
could so many federal judges approve the obvious violation of
important Fifth Amendment and Sixth Amendment rights? The
In re Winship
. Maj. Op. 35 n.18 . The defendant’s Sixth
Amendment right is to have all evidence proven beyond a rea-
sonable doubt
to a jury
, not simply to have the government put
a surfeit of evidence into a record. Yet, applying the harmless-
error standard the Supreme Court affirmed Neder’s conviction
because there was enough evidence in the record to find an el-
ement of the offense — even though
the jury
never made such a
finding.
answer is that they haven’t ; our colleagues overwhelmingly understand the difference between judicial factfinding and plain-error remedial discretion.
By holding that we may not review the whole record at prong four, the majority positions us on the short end of a lop- sided circuit split. It fails to identify a “compelling basis” to do so, in defiance of our Court’s “general[] reluctan[ce]” to create such splits. In re Asbestos Prod. Liab. Litig. (No. VI) , 921 F.3d 98, 109 (3d Cir. 2019) (internal quotation marks omitted) (quoting Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager , 870 F.3d 144, 152 (3d Cir. 2017)). More im- portantly, t he majority’s criticisms of our sister circuits’ posi- tions are mistaken.
Consider the majority’s handling of the Eleventh Circuit’s decision in United States v. Reed . The defendant in Reed was convicted by a jury of possessing a firearm as a felon, and the Eleventh Circuit affirmed his conviction. 941 F.3d at 1019. The Supreme Court vacated the Eleventh Circuit’s judg- ment of affirmance in light of Rehaif and remanded for recon- sideration. Id. On remand, the Eleventh Circuit once again af- firmed. Id. at 1022. It held that an appellate court may review the whole record when assessing a Rehaif error’s effect, or lack thereof, on the fairness, integrity, or public reputation of *112 judicial proceedings. Id. at 1021 –22. Because the defendant’s presentence report “stated that he had been incarcerated for lengthy terms before possessing the firearm,” id. at 1020, he could not prove that the error affected “the fairness, integrity, or public reputation of his trial,” id. at 1022. Accordingly, the Eleventh Circuit declined to set aside his conviction. Id. at 1022.
The majority chides the Eleventh Circuit for relying on
United States v. Vonn
,
The Supreme Court has never held that the “entire rec- ord” that Young instructs us to examine means just the trial rec- ord. That would make no sense: reasonable people will *113 consider all relevant information in assessing whether our de- cision to affirm Nasir ’s conviction works a miscarriage of jus- tice that is inconsistent with fairness, integrity, and the good reputation of our judicial system. And unlike the majority, they will not arbitrarily ignore the indisputable fact of Nasir’s sci- enter and guilt. Maj. Op. 59 – 64. In deciding whether to exer- cise our discretion, we should consider reliable materials within and outside of the trial record just as thoughtful mem- bers of the public certainly will.
standard of the Compulsory Process Clause. Id. at 908 – 10. Alt- hough Makiel was not a plain- error case, the court’s discuss ion assists our consideration of the scope of discretionary review prescribed by Olano . Similar to our task at prong four, the court in Makiel had to evaluate the defendant’s argument in light of public interests such as “the integrity of the adversary pro cess, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process.” Id. at 909. The Seventh Circuit concluded that when the Supreme Court instructs circuit courts to evaluate claims of trial error in the context of the “entire record,” that is broader than the “trial record.” Id. Consider the prong-four significance of Nasir’s Old Chief
stipulation, which of course was part of the trial record. The majority suggests that it could never be even circumstantial ev- idence of his scienter, Maj. Op. 55 57, but that assertion is not compelled by Rehaif . And it wars against common sense and experience. As a strictly logical proposition, it is true that Nasir’s stipulation proved only that he knew of his felon status as of the date of the stipulation; it did not necessarily prove that he knew he was a felon when he was arrested with the gun. But just as a factual statement can be strictly true and yet fraudulent
The majority also assails the Second Circuit’s decision in Miller and the Seventh Circuit’s decision in Maez . Its criti- cism of the approach taken by those two circuits is similarly unpersuasive.
Miller
involved a defendant whose presentence inves-
tigation report showed that he spent several years in prison
prior to his firearm possession, rendering it obvious that he
knew he was a felon at the time of possession.
The majority faults the Second and Seventh Circuits for “treat[ing] judicial discretion as powerful enough to override the defendant’s right to put the government to its proof when it has charged him with a crime .” Maj. Op. 46 47. But Nasir has not been deprived of that right. He had the opportunity to insist that the government be required to prove that he knew he was a felon at the time of his firearm possession. He did not do so, instead agreeing that no such proof need be presented. As a direct result of that choice, the government did not introduce evidence as to Nasir’s knowledge of his status at the time of possession though such evidence was readily available. I do not see why Nasir’s failure to object to the jury instruction and decision to instead avail himself of an Old Chief stipulation should continue to redound to his benefit now that we are ex- ercising remedial discretion.
F. Nasir does not satisfy
Olano
’s step-four stand-
ard for error-correction
Our sister circuits’ approach does not “imply that relief
on plain- error review is available only to the innocent.” Maj.
Op. 47. If, for example, an error so corrupts a judicial
*116
proceeding as to make its verdict completely unreliable, no
court would require a defendant to prove on appeal that he was
actually innocent before vacating a conviction resulting from
such a proceeding.
See Medley
,
Remanding this case for retrial is unnecessarily burden- some and seriously undermines the fairness and public reputa- tion of judicial proceedings. That broad inquiry is the standard governing our exercise of discretion. The majority compounds its error by explicitly limiting our prong-four discretion to Nasir’s trial, which, it insists , “is the only judicial proceeding at issue.” Maj. Op. 41 n.22. Not so. At prong four we ask whether refusing to cure the plain error would “seriously affect the fairness, integrity or public reputation of judicial proceed- ings ” generally , not merely the particular defendant’s proceed- ing. Puckett , 556 U.S. at 135. As the Court elaborated in Puckett , we consider whether affirming Nasir’s conviction uncorrected where [it has] no doubt as to the ultimate result of further proceedings.” Id. at 963.
would call into question “the integrity of
the system
” and be so
ludicrous as to “compromise the public reputation of
judicial
proceedings
.”
Id.
at 142 – 43 (emphasis added);
see also United
States v. Edgell
, 914 F.3d 281, 291 (4th Cir. 2019);
United
States v. Marroquin
,
Even if we improperly limited our prong-four inquiry to what the majority erroneously describes as “the actual field of play the trial,” Maj. Op. 41 n.22, we should still affirm. When asked twice at oral argument how Nasir would attempt to dis- prove the knowledge-of-status element if the case were sent back for retrial, his counsel was unable to give a responsive answer. (That is not a criticism of counsel’s performance ; there is no plausible explanation.) Instead, counsel allowed that Nasir would strategically use a remand to try to negotiate a bet- ter plea deal. In light of that revelation, I believe that thoughtful members of the public would view the majority’s judgment and Nasir’s windfall with bemused cynicism rather than reputation- enhancing admiration.
G. We are bound by the Supreme Court’s plain - error precedent
The majority at least purports to apply
Olano
and its
progeny. Judge Matey’s opinion strikes out in an entirely dif-
ferent direction, citing first principles. I endorse that approach
in cases where lower court judges write on a blank slate, but in
this appeal we are guided by ample Supreme Court precedent.
*118
In any event, although we have not had the benefit of original-
ist briefing and argument, I doubt that Rule 52(b)’s remedial
discretion as currently applied offends the Sixth Amendment
and note that Justices Scalia and Thomas both joined
Olano
without any reservation, originalist or otherwise.
Cf.
Concur-
ring Op. 13 16 (criticizing
Atkinson
and
Olano
as allegedly
unwarranted expansions of original plain-error doctrine).
Moreover, I fail to grasp how a purportedly originalist applica-
tion of plain-error review can affirm the conviction of
non-
criminal conduct
but disallows the conviction of conduct that
was certainly criminal but not properly proven.
Cf. United
States v. Jabateh
,
*****
The Supreme Court has disapproved “a reflexive incli- nation by appellate courts to reverse because of unpreserved error, ” a tendency contrary to the “strictly circumscribed” appellate-court authority to remedy unpreserved error only where necessary due to exceptional circumstances. Puckett , 556 U.S. at 134 (internal quotation marks omitted) (quoting United States v. Padilla , 415 F.3d 211, 224 (1st Cir. 2005) (Boudin, C.J., concurring)). Yet the majority persists in the face of overwhelming, reliable information supporting Nasir’s conviction. Its error stems from a basic misunderstanding of the nature of plain-error review. I respectfully dissent from Section II.E of the majority opinion.
Notes
[*] Judges Scirica and Rendell have elected to participate as a member of the en banc court pursuant to Third Cir. I.O.P. 9.6.4.
[**] The opinions of Judges McKee, Ambro, Jordan, Greenaway, Jr., Krause, Restrepo, Matey, Scirica, and Rendell are reflected in this Majority Opinion in Sections I, II.D., and II.E., as well as in the Conclusion in Section III of the Opinion,
[1] Nasir had initially agreed to rent unit C43, but soon after transferred to unit C69.
[2] Old Chief held that defendants in prosecutions under 18 U.S.C. § 922(g)(1) are entitled to enter a stipulation establishing their status as felons (and thus as persons prohibited from possessing firearms), in which case the government cannot introduce evidence establishing what the prior offense was. “The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission … .” 519 U.S. at 174, 190 91.
[3] In its entirety, the stipulation stated: The United States of America, by and through its undersigned attorneys, and James Brose, attorney for Defendant Nasir, hereby stipulate and agree to the following: Prior to December 21, 2015, the date alleged in Count Three of the Indictment, Defendant Malik Nasir was convicted of a felony crime punishable by imprisonment for a term exceeding one year, in the United States District Court for the Eastern District of Virginia.
[5] Nasir does not argue that 21 U.S.C. § 856(a)(1) does not cover storage units; instead, he says that it does not cover the activity of storing. The distinction he attempts to draw is irrelevant here because, as we will explain, there was ample evidence to support the finding that Nasir was not merely storing drugs, he was distributing drugs from a rented place.
[6] Nasir claims he preserved his position when he raised a sufficiency-of-the- evidence challenge. At trial, Nasir’s attorney said, “ [s]uccinctly, it’s our position that the government has not proved Mr. Nasir in possession of either the firearms or the marijuana.” (App. at 549.) But counsel’s generic statement, which made no reference to 21 U.S.C. § 856, was not sufficient to preserve a claim of error on this issue.
[7] Although Nasir pointed out in his briefing that the arresting officer said he “[b]asically … looked at [the search] as an inventory search,” (App. at 138,) that does not appear to have been the theory that the government pursued before the District Court or now pursues on appeal.
[8] We note, as did the District Court, that even if the search had been performed prior to Nasir’s arrest, “the search of the vehicle appears to have been within the scope of the automobile exception.” (Ap p. at 21 n.4 (citations omitted).) It is well established that under the automobile exception to the warrant requirement, the police may search a vehicle if they have probable cause to believe that the vehicle contains evidence of criminal activity. Carroll v. United States , 267 U.S. 132, 155-56 (1925). Here, the same facts that gave rise to probable cause for an arrest can rightly be seen as independently giving rise to probable cause for a search of the vehicle.
[9] Nasir has other prior convictions, but the government and Nasir appear to agree than none of them qualify as predicate offenses.
[10] An inchoate offense is “[a] step toward the commission of another crime, the step itself being serious enough to merit punis hment.” Offense, Black’s Law Dictionary (11th ed. 2019). Inchoate offenses include, for example, the attempt, conspiracy, or solicitation to commit a crime. Id.
[11] The Sentencing Commission has proposed an amendment to the guidelines to explicitly include inchoate offenses in section 4B1.2(b). Notice of Proposed Amendments , 83 Fed. Reg. 65400-01, 65412-15 (Dec. 20, 2018). The proposed change has been submitted for notice and comment, and the time for notice and comment has closed. Id. However, the Commission does not currently have a quorum (and has not had one since at least 2018), so it cannot act on that issue. U.S. Sentencing Commission, 2018 Annual Report 2-3, available at https://www.ussc.gov/sites/default/files/pdf/research-and- publications/annual-reports-and-sourcebooks/2018/2018- Annual-Report.pdf.
[12] In 1945, the Supreme Court upheld a regulation from
the Office of Price Administration in
Bowles v. Seminole Rock
,
after it determined that the language of the regulation was
consistent with Admi nistration’s
interpretation of
the
regulation.
Seminole Rock
,
[13] Our dissenting colleagues say that, in addressing whether to correct the conceded plain error in this case, we have failed to appreciate the purpose of plain error review under Federal Rule of Criminal Procedure 52(b). (Dissent at 3-5.) In particular, the Dissent says that we “seem[] to suggest a presumption in favor of error-correction. ” (Diss ent at 5.) But we’ve said nothing of the sort. The import of our statement here should be clear: it is not enough to win on the first three prongs of Olano , because you can still lose at prong four. The implication is quite the opposite of what the Dissent attributes to us. The disagreement between our opinion and the Dissent hinges not on what Rule 52(b) means but, as we shall explain, on whether, given the type of error under consideration, we are free to look beyond the trial record when deciding if we should exercise our discretion under that rule.
[14] The Dissent implies that the knowledge-of-status
element was somehow well known before
Rehaif
. But to say,
as our dissenting colleagues do, that “ the scienter issue was
hardly a secret at the time of Nasir’s trial , ” is to set up a straw
man. (Dissent at 4.) It is true that scienter was understood to
be a required point of proof in a § 922(g) prosecution, but the
knowledge that had to be proven was the defendant’s
knowledge that he possessed a firearm. While the Dissent has
been able to identify a very few three – dissenting opinions
in appellate cases suggesting a knowledge-of-status element,
such scienter was not a holding in any case, it appears, except
for a single unreported district court case from many years ago.
The small handful of judges who anticipated the Supreme
Court’s turn by a dozen years deserve credit, but that hardly
warrants the D issent’s effort to paint the knowledge -of-status
element as something that was current in conversation within
the bench and bar. Far from it. As Justice Alito noted in his
dissent in
Rehaif
, the Supreme Court majority in that watershed
case “overturn[ed] the long -established interpretation of an
important criminal statute, ... an interpretation that ha[d] been
adopted by every single Court of Appeals to address the
question” and an interpretation that “ha[d] been used in
thousands of cases for more than 30 years.”
[15] Nasir raises three
Rehaif
-based challenges to his
conviction: that the indictment was defective for omitting
knowledge-of-status as an element of the crime, that the jury
was not properly instructed that knowledge-of-status is an
element of the crime, and that the government did not present
sufficient evidence of knowledge-of-status. While we are
persuaded by Nasir’s last argument and recognize some merit
in the second, we see no merit at all in the first. The language
of the indictment echoes the language of the statute, stating that
Nasir “did knowingly possess in and affecting interstate and
foreign commerce, firearms … after having been convicted of
a crime punishable by imprisonment for a term exceeding one
year[.]” (App. at 40 -41.) The indictment thus mirrors the
language of the statute by listing the “knowingly” mens rea
element first, allowing it to modify the other elements of the
crime.
See Hamling v. United States
,
[17] This may be where our views and those of our dissenting colleagues diverge most dramatically. The Dissent says we are “fixate[d] on Winship ’s requirement of proof beyond a reasonable doubt in criminal trials” and have a “misconception of plain -error review [that] infects [our] entire discussion of the record … .” (Dissent at 10.) Since Winship only said what the Constitution itself requires, the Dissent might just as well say we are fixated on the Constitution. The intimation is that, if we really understood plain-error review under Rule 52(b), we would not be so bothered by someone ’s being convicted without a shred of proof having been introduced at trial on one of the elements of the charged offense.
[18] The Dissent asserts that our “insistence that [the
Olano
] prong- four analysis is … limited to the time of trial (as
memorialized in the trial record) is unwarranted and finds no
support in
Johnson
.” (Dissent at 7-8.) We will leave to
thoughtful readers to decide who has more faithfully
considered the text of
Johnson
. Suffice it to say that our
reading finds ample support in that text and makes perfect
sense, particularly
in
light of
later Supreme Court
pronouncements, like those in
Neder v. United States,
527 U.S.
1 (1999).
In
Neder
, a similar legal error was at issue. As in
Johnson
, the district court wrongly decided the issue of the
materiality of false statements, this time in a case that included
the filing of false tax returns. Over the defendant’s objection,
the district judge had instructed the jury that the question of
materiality was for the court alone to decide. Looking at the
evidence produced by the government
at trial
, the trial judge
found that “the evidence established the materiality of all the
false statements at is sue.”
Id.
at 6. The Eleventh Circuit
affirmed the conviction. On review, the Supreme Court
applied the harmless-error standard from
Chapman v.
California
, 386 U.S. 18 (1967), because the defendant had
lodged an objection to the ruling at issue (in contrast to Nasir
and the defendant in
Johnson
, both of whom were left with
plain-error review because they failed to object). In the end,
the Supreme Court said that the jury-instruction error was
harmless because there was so much evidence of materiality
in
the trial record
that “no jury could reasonably find that Neder’s
failure to report substantial amounts of income … was not a
‘material matter.’”
[20] Under Rule 11, if the defendant has pled guilty, “the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(2).
[21] Because we of course acknowledge that a guilty plea must be knowing and voluntary, the Dissent concludes that we are “comfortable inferring a defendant’s knowledge -of-felon
[22] The Dissent asserts that United States v. Young , 470 U.S. 1 (1985), supports its position, and the position taken in Reed , 941 F.3d at 1020-21, that we must consider evidence outside the trial record when applying Olano step four. (Dissent at 15.) Not so. Although Young does refer to “the entire record,” it does so in a way that, in context, makes plain that what the Supreme Court was referring to was the entire trial record. The full quote from Young reads as follows: Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record. We have been reminded: “ In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure . To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution. ” It is simply not possible for an appellate court to assess the seriousness of the claimed error by any other means. 470 U.S. at 16 (emphasis added) (internal citation and quotation marks omitted). Far from supporting the Dissent or Reed , that statement emphasizes that our focus is supposed to be on the actual field of play the trial – to see whether the government has fulfilled its constitutional obligations in a way that preserves the fairness and integrity of the prosecution and maintains the confidence of the public. The trial record is the only place to
[24] Subsequently, the Seventh Circuit has exercised its
discretion to recognize the plain error in a post-
Rehaif
challenge to a § 922(g) conviction.
See United States v. Cook
,
[25] The First Circuit has also recently joined the ranks of the Second and Seventh Circuits, saying that “the Supreme
[26] As discussed below, we think the existence of an Old Chief stipulation has little relevance to the analysis and, thus, disagree with the Seventh Circuit’s conclusion that it was justified in straying from the trial record on that basis. To the extent that either the Second or Seventh Circuit (or any other court of appeals) sought to make a broader point that going beyond the trial record was permissible because the government presented all of the evidence it needed to, given the state of the law prior to Rehaif , our views again diverge. Whether fair to the government or not, it does not matter that the change in the law came after trial. The Supreme Court has said that the error must be measured based on the law at the time of appeal. See Henderson , 568 U.S. at 273 (“ Johnson explicitly rejects applying the words ‘ plain error ’ as of the time when the trial judge acted. Instead, Johnson deems it ‘ enough that an error be “ plain ” at the time of appellate consideration ’ for that error to fall within Rule 52(b) ’ s category of ‘ plain error. ’” (quoting Johnson , 520 U.S. at 468)). There will be cases that fall in the gap between the state of the law at trial and the state of the law on appeal. This is one.
[27] The Dissent suggests the same. Indeed, the consistent theme of the Dissent is that, when evidence outside the trial record is considered, it is so obvious that Nasir is guilty that we are “profoundly mistaken” (Dissent at 1) in “persist[ing]” in our desire to correct a plain error of constitutional magnitude that has affected Nasir’s substantial rights . (Dissent at 24.) “[I]n the face of overwhelming, reliable information supporting Nasir’s conviction” (Dissent at 24), our persistence is explained as “a reflexive inclination … to reverse because of unpreserved error[.]” (Dissent at 24 (quoting Puckett v. United States , 556 U.S. 129, 134 (2009)).) Our view, however, is more reflective than reflexive and is consistent with the Supreme Court’s instruction that “ the public legitimacy of our justice system relies on procedures that are neutral, accurate, consistent, trustworthy, and fair, and that provide opportunities for error correction.” Rosales-Mireles v. United States , 138 S. Ct. 1897, 1908 (2018) (internal quotation marks and citation omitted).
[28] The Dissent relies heavily on the several cases we
have just discussed and others following them, counting the
number of courts and judges and asking, “[h]ow could so many
federal judges approve the obvious violation of important Fifth
Amendment and Sixth Amendment rights?” (Dissent at 1 6.)
We are certainly aware that thoughtful people can analyze the
plain-error conundrum here differently than we have. But then,
not long ago, there was a contrary consensus that plain-error
relief is warranted when the trial record is “devoid of
evidence.”
See United States v. Castro
,
[32] For the language of the stipulation in its entirety, see supra note 3.
[33] That is not to say that t he government’s argument is
without support.
See Ward
,
[34] While the Dissent agrees that the stipulation does not “ necessarily prove that [Nasir] knew he was a felon when he
[36] Specifically, the government points to “the evidence of subterfuge involving the use of the separate storage facility to store drugs and drug paraphernalia [and] the fact that he had a secondary vehicle in which he had an arsenal of five semiautomatic fir earms.” (En Banc Oral Argument at 1:03:45 1:04:35; see also App. at 393 – 94 (trial testimony describing Nasir’s behavior at the storage facility as involving “frequent visits” to a “small unit” where Nasir “would go inside and come back out”). )
[37] The government further argues that the fact Nasir kept his weapons hidden and locked in the trunk of his car shows he knew he was prohibited from possessing firearms. If we were to accept that argument, it might imply that a gun owner who responsibly keeps his guns safely locked away is somehow admitting his ownership of them is illicit. We think the inference unwarranted.
[38] In Medley , the Fourth Circuit found plain error and prejudice in the indictment, in the jury instructions, and in the sufficiency of the evidence presented at trial. Id. at 419. It then exercised its discretion to recognize the error at step four of plain-error review, in light of the cumulative effect of those three errors. Id. Rather than delving into our agreements or disagreements with the majority and dissenting opinions in that case, we note that we certainly agree with the foundation of the majority’s analytical approach that due process and the right to a jury trial are implicated here.
[39] We do not suggest, as the Dissent contends, that
“plain -error review is inapplicable whenever important
constitutional rights are at issue.” (Dissent at 11 n.4.) Instead,
we faithfully apply our discretion at
Olano
step four within the
confines of the trial record, evaluating whether the
constitutional deprivation at issue seriously impugns the
fairness,
integrity, and public reputation of
judicial
proceedings. By limiting the scope of our review to the trial
record, we decline to act as a factfinder or to do the
government’s job for it . That exercise of judicial restraint does
not create a
per se
rule, nor does it “challenge[ ] the
constitutionality of Rule 52(b)’s plain -error standard as
explicated in Supreme Court decisions[,]” as the Dissent
charges. (Dissent at 11 n.4).) There are cases, as we’ve
previously noted (
supra
note 29), in which sufficient evidence
was presented at trial to show that a defendant was aware of
his status as a felon at the time of the crime charged.
See
,
e.g.
,
Moss
,
[40] Faulting us for adhering firmly to the demands of due process, the Dissent asserts that “framing the plain error as a due-process violation does not automatically satisfy Olano prong three or four.” (Dissent at 7.) We agree. Labels are not what matter; substance is. To recap, looking at what happened in this case, and considering Olano prong three, not even our dissenting colleagues try to say that the government actually offered at trial any evidence of Nasir’s knowledge of his status as a previously convicted felon. So, again, there was a complete failure of proof on that essential element of the § 922(g) charge, and it ought to be a matter of common understanding that a failure to prove all the elements of an offense does affect substantial rights, as our past precedent tells us. See United States v. Jones, 471 F.3d 478, 480 (3d Cir. 2006) (“[A]ffirming a conviction where the government has failed to prove each essential element of the crime beyond a reasonable doubt affect[s] substantial rights … .” (internal quotation marks omitted) (second alteration in original)). So prong three is satisfied here, not because we are “framing” the government’s failure as one of due process but because it indisputably is a matter of due process, implicating one of the most fundamental protections afforded to an accused. As for prong four of Olano , we likewise are not saying that labels carry the day. We are focused on the fundamental right, enshrined in the Due Process Clause, that no one will be deprived of liberty without the government carrying its burden to prove guilt beyond a reasonable doubt. When that is at issue,
[42]
See
,
e.g
.,
United States v. Ford
,
[1] This distinction — whether precedent already answers the question — accounts for the outcome in United States v.
[3] Perhaps, for example, the evidence was suppressed. Or the parties stipulated to bar its introduction. Maybe the prosecution did not choose to offer the evidence. Maybe none of the parties, or the court, thought the evidence was relevant. Whatever the reason, the result is the same: the jury never saw it.
[4] Count Three of the indictment charged that Nasir “did knowingly possess in and affecting interstate and foreign commerce, firearms . . . after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in the United States District Court for the Eastern District of Virginia, in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).” (App. at 40– 41.)
[5] The District Court instructed the jury that “in order to find the defendant guilty of [18 U.S.C. § 922(g)], you must find that the government proved each of the following three
[1] The plain error in Johnson concerned the trial court’s failure to submit materiality to the jury, as subsequently required in United States v. Gaudin , 515 U.S. 506 (1995). Johnson , 520 U.S. at 464.
[2] We have also previously used a “no -plausible- argument” or “no -plausible- explanation” test in deciding plain -error cases at
[3] In response, the majority contends that what separates us is nothing less than fidelity to the “ Constitution itself. ” Maj. Op. 34 n.17. But the majority ignores the thrust of my criticism. In a dif ferent case the majority’s fixation on Winship would be salutary, but here it is misplaced because plain-error review is not a continuation of the jury trial.
[4] We do not “[d]isregard[] constitutional norms” in refusing to remand a case to the district court on plain-error review when the jury’s verdict was obviously correct. Maj . Op. 62. Surely the majority is not suggesting that plain-error review is inap- plicable whenever important constitutional rights are at issue; nor (I hope) is it suggesting that nearly all of our sister circuits are so unconcerned with the preservation of constitutional guarantees that they would disregard an obvious Sixth Amendment violation just for the sake of keeping a person be- hind bars. See infra at 16 17. Simply put, the majority’s ap- proach challenges the constitutionality of Rule 52(b)’s plain - error standard as explicated in Supreme Court decisions.
[5] The majority is comfortable inferring a defendant’s
knowledge-of-felon status from his prior guilty plea because
“when a d efendant pleads guilty, the district court must ensure
that the plea is knowing and voluntary.” Maj. Op. 40. But the
majority refuses to apply that same logic to Nasir, who know-
ingly and voluntarily pleaded guilty to felony charges on three
separate occasions. Indeed, he even pleaded guilty to a prior
felon-in-possession charge. So as the majority acknowledges,
when he was tried for the same offense in this case he
neces-
sarily
knew that he was a felon. This is precisely the sort of
information that should inform our discretionary judgment at
prong four.
See, e.g.
,
United States v. Huntsberry
, 956 F.3d
270, 285 (5th Cir. 2020);
United States v. Ward
,
[6] The majority’s emphasis on the amount of evidence in the Neder trial record is curious, considering its heavy reliance on
[7] The majority sniffs that its decision is based upon “independ- ent judgment” rather than simple nose-counting. Maj. Op. 49 n.28. That misses the point. Respectfully, my suggestion is that in exercising its independent judgment the majority has inade- quately considered the extreme unlikelihood that so many of our judicial colleagues have somehow missed, or would casu- ally ignore, the due process and Sixth Amendment concerns that the majority finds so troubling.
[8] In
Makiel v. Butler
,
[10] Indeed, as the Seventh Circuit recognized, “defendants can
sometimes show an effect on fairness or integrity without a
claim of innocence.”
Maez
,