United States v. Lynell Guyton

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-3093

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UNITED STATES OF AMERICA

v.

LYNELL GUYTON,

Appellant

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-17-cr-00215-001)

District Judge: Honorable David S. Cercone

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Argued on June 3, 2025

Before: HARDIMAN, BIBAS, and FISHER, Circuit Judges.

(Filed: July 18, 2025)

Abigail E. Horn [Argued]

Federal Community Defender Office for the Eastern District of

Pennsylvania

The Curtis Center, Suite 540 West

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellant

Adam N. Hallowell [Argued]

Laura S. Irwin

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

A jury convicted Lynell Guyton of nine drug-

trafficking, firearm, and money-laundering offenses. Guyton

appeals his judgment of conviction and sentence, citing a host

of errors. Most of the arguments he now raises were

unpreserved, and some raise questions of first impression. For

the reasons that follow, we will affirm the judgment in all

respects except one: we will vacate a firearms charge and

remand for the District Court to enter a judgment of acquittal

on that count.

2

I

A

Before this federal prosecution, Guyton had many run-

ins with the state criminal justice system. Because those state

crimes are relevant to Guyton’s federal sentence in this case,

we recount them in detail.

In March 2009, Pittsburgh Police conducted a

controlled purchase of drugs from Guyton but did not arrest

him then. On April 8, 2009, Guyton was detained on unrelated

charges. Seven months later, while still in custody, Guyton was

charged under Pennsylvania law with possession with intent to

deliver a controlled substance for the March 2009 transaction.

See 35 P.S. § 780-113(a)(30). Guyton posted bond for that

charge the same day but remained imprisoned on the unrelated

offenses. On December 10, 2009, he pleaded guilty to the

unrelated charges and was sentenced to the time he served from

April 8 to December 10. Guyton was released on bond for the

March 2009 offense on December 20, 2009.

Nearly two years later, Guyton was convicted of the

March 2009 offense and sentenced to 18 to 36 months’

imprisonment followed by three years’ probation. The

sentencing court credited Guyton with 256 days—the time he

was imprisoned from April 8, 2009, to December 20, 2009. His

sentence was later reduced to one year, one month, and fifteen

days under Pennsylvania’s recidivism risk reduction incentive.

Guyton was released on July 22, 2012, 220 days after he was

sentenced.

3

B

Five years after he was released from state prison,

Guyton engaged in conduct that caught the attention of federal

law enforcement: he used Skype to order large quantities of

fentanyl analogues from China. In one exchange, Guyton

asked the Chinese suppliers for “fentanyl products,” and they

promised him “a good product of opioids” with a “very strong”

effect. Supp. App. 14. Guyton repeatedly asked his suppliers

how they “camouflage[d]” the drugs, expressing concern that

United States “Customs [has] been very strict lately.” Supp.

App. 13, 25–26. One supplier sent Guyton “MoneyGram

Payment Details” so he could pay for the drugs. Supp. App. 12.

MoneyGram records showed that Guyton sent multiple wire

transfers to China.

Meanwhile, U.S. Customs and Border Protection

intercepted a suspicious package sent from Hong Kong that

was addressed to “Avon Barksdale” in Pittsburgh. App. 152–

53. The package contained about 100 grams of methoxyacetyl

and cyclopropyl fentanyl. Law enforcement replaced the drugs

with sham substances and delivered the package as addressed.

Minutes later, Guyton arrived on a gold hoverboard, retrieved

the package, and was immediately arrested.

After he was released, Guyton continued to deal drugs.

He was found in possession of cyclopropyl fentanyl during two

different traffic stops. And he continued to mix and package

drugs in his neighborhood, sometimes using the homes of

Anthony Lozito and James Defide.

As the federal investigation progressed, law

enforcement conducted trash pulls at several houses. They

found drug paraphernalia in Lozito’s and Defide’s trash and

4

two firearms in Guyton’s trash. Authorities then executed

search warrants at each house. At Guyton’s, they found drug

paraphernalia, a ballistic vest, and a receipt for ammunition.

Law enforcement also searched an apparently abandoned

house next door to Guyton’s residence. Inside that house, they

recovered two firearms in a duffel bag. At Lozito’s house, law

enforcement found Guyton along with cyclopropyl fentanyl

and other drug paraphernalia.

C

A federal grand jury indicted Guyton on nine charges:

conspiracy to distribute 100 grams or more of a fentanyl

analogue in violation of 21 U.S.C. §§ 841(b)(1)(A)(vi) and 846

(Count 1); possession with intent to distribute 100 grams or

more of a mixture containing a fentanyl analogue in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vi) (Count 2);

possession of a firearm by a felon in violation of 18 U.S.C.

§ 922(g)(1) (Counts 3 and 4); possession with intent to

distribute a mixture containing a fentanyl analogue in violation

of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts 5 and 6);

attempt to distribute ten or more grams of a mixture containing

a fentanyl analogue in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(vi) (Count 7); and international money

laundering in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts

8 and 9).

The Government filed an information under 21 U.S.C.

§ 851(a) alleging that Guyton’s 2011 conviction triggered the

recidivist sentencing enhancements of § 841(b). Those charges

were included in the superseding indictment. And the grand

jury found that, as to Counts 1, 2, and 7, Guyton was convicted

in 2011 for possession with intent to deliver, delivery, or

manufacture a controlled substance in violation of

5

Pennsylvania law. It further found that he “served a term of

imprisonment of more than twelve months” for the 2011

conviction and was released “within fifteen years of the

commencement of” the offenses charged in Counts 1, 2, and 7.

App. 49.

At trial, the prosecutor opened by telling the jury that

Defide would testify that Guyton used the derelict house next

door as a “mix spot.” App. 145. But on the witness stand,

Defide did not deliver as promised: he said that he and Guyton

never discussed the house. And though Defide identified the

firearms from the trash bag outside Guyton’s home, he did not

offer any testimony about the ones recovered from the derelict

house.

The Government also introduced into evidence

MoneyGram documents. A spreadsheet showed wire transfers

from “Guyton” to several recipients in different cities,

including “Beijing” and “Wuhanshi.” App. 668, 672. It also

contained columns labeled, among other things, “Snd Status,”

“Rcv Date,” and “Rcv Time.” App. 667, 671. Specific dates

and times were listed under the “Rcv Date” and “Rcv Time”

columns. A special agent with Homeland Security

Investigations described the MoneyGram spreadsheet to the

jury, explaining that Guyton sent $500 to Junyang Lu in

Beijing, China, and $450 to Piao Cheng in Wuhanshi, China.

At the close of evidence, Guyton moved for a judgment

of acquittal, which the District Court denied. 1 The District

Court then instructed the jury. On the knowledge requirement

1

Guyton elected to proceed pro se. Midway through trial, he

asked standby counsel to take over his representation, which

counsel did for the rest of the proceedings.

6

for the drug possession and distribution counts (Counts 1, 2, 5,

6, and 7), the District Court issued the following instruction:

Knowingly does not require that the Defendant

knew that the acts charged and surrounding facts

amounted to a crime . . .

The phrase “knowingly or intentionally,” as used

in the offense charged, requires the Government

to prove beyond a reasonable doubt that Mr.

Guyton knew that what he possessed with the

intent to distribute was a controlled substance or

was an analogue of a controlled substance, that

is, that the Defendant knew either the legal status

of the substance, or the chemical structure and

physiological effects of that substance.

App. 597. In addition, the District Court instructed the jury on

the elements of domestic money laundering under 18 U.S.C.

§ 1956(a)(1)(A)(i), even though Counts 8 and 9 of the

indictment had charged international money laundering under

18 U.S.C. § 1956(a)(2)(A).

The jury returned a guilty verdict on all counts. The jury

was not asked to find any facts relating to Guyton’s 2011

convictions.

7

D

Based on the § 851 information, the Presentence

Investigation Report (PSR) concluded, in relevant part, that the

recidivist enhancements in 21 U.S.C. § 841(b)(1)(A) and (B)

applied to Counts 1, 2, and 7. Those enhancements increased

the mandatory minimum term of imprisonment from 10 to 15

years on Counts 1 and 2. See 21 U.S.C. § 841(b)(1)(A). And

on Count 7, the mandatory minimum term of imprisonment

increased from 5 to 10 years, and the statutory maximum

increased from 40 years’ to life imprisonment. 21 U.S.C.

§ 841(b)(1)(B). Guyton did not object to the PSR.

At sentencing, the District Court adopted the PSR’s

findings. The Court imposed a sentence of 360 months’

imprisonment on Counts 1 and 2 and a concurrent 120-month

sentence on the remaining counts, followed by 10 years’

supervised release.

Guyton timely appealed.

II 2

We begin with Guyton’s argument that the District

Court erred in denying his motion for judgment of acquittal on

Count 3, one of the two felon-in-possession-of-firearms

charges. See 18 U.S.C. § 922(g)(1). He contends that there is

insufficient evidence to support his conviction for the two guns

found in the derelict house. Guyton concedes he was near the

2

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(a).

8

house (because he lived next door) and had access to it

(because the back door was open). But he maintains that there

was no evidence that he exercised dominion or control over the

house or otherwise knew of the firearms. So he says no

reasonable juror could have convicted him of constructively

possessing those firearms. We agree.

To prove constructive possession, the Government was

required to demonstrate that Guyton knew about the guns and

exercised dominion and control over the area where they were

found. 3 United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.

1996). Viewing the evidence in the light most favorable to the

Government, a reasonable jury could not find that Guyton

constructively possessed the firearms stored in the derelict

house. See United States v. Wolfe, 245 F.3d 257, 261 (3d Cir.

2001). No witness testified to that effect: when asked if Guyton

owned any firearms, Defide identified only the ones found in

Guyton’s trash. And there is no forensic evidence tying Guyton

to the guns in the house next door: the Government tested the

firearms for fingerprints and DNA but found none. While law

enforcement did seize a bulletproof vest and a receipt for

ammunition from Guyton’s house, no evidence connected

those items to the firearms in the derelict house.

Nor was there evidence that Guyton was ever present at

the derelict house, much less that he exercised dominion or

control over it. See Jenkins, 90 F.3d at 818 (noting that “mere

3

The Government suggests that the jury could have found

actual possession. But the Government offered no proof that

Guyton “exercised direct physical control over the weapon[s].”

United States v. Caldwell, 760 F.3d 267, 278 (3d Cir. 2014).

So the Government was limited to a constructive possession

theory.

9

presence on the property” where the contraband is located is

insufficient to show dominion or control (citation omitted)).

Guyton did not own, rent, or live in the house. He did not

possess a key or keep personal belongings in the house. And

despite the Government’s promises during its opening

statement, Defide did not testify that Guyton used the house as

a “mix spot.” App. 145. To the contrary, Defide testified that

he and Guyton never discussed the house. In short, the

“decisive nexus of dominion and control between the

defendant and the contraband” is absent here. Jenkins, 90 F.3d

at 820.

The Government concedes that Defide “did not connect

Guyton to the abandoned house or the firearms inside.” Gov’t

Br. 29. But it contends that Guyton’s proximity plus his motive

to conceal contraband was enough to show dominion or

control. We disagree.

The Government relies on our decision in United States

v. Foster, 891 F.3d 93 (3d Cir. 2018), but that case is

distinguishable. There, one of the defendants had been seen

several times in the driver’s seat of a stolen car involved in an

armed robbery. Id. at 111–12. Shortly after the defendant

exited the vehicle, law enforcement recovered a firearm from

the back seat. Id. at 100–02. We held that the defendant’s

proximity to the firearm, along with his motive to possess the

gun for armed robbery, evasive conduct, and presence in the

driver’s seat supported the constructive possession conviction.

Id. at 112.

Unlike Foster, this record contains no evidence that

Guyton was present where the contraband was found. No one

testified about seeing him at or in the derelict house, and he did

10

not own or rent it. 4 While Foster does indicate that a

defendant’s attempts to hide or destroy contraband may

establish dominion and control, there is no such evidence here.

The record shows only that Guyton tried to hide other

contraband: the firearms in the trash in front of his house and

the drug paraphernalia at his associates’ homes. It does not

follow from that conduct that any firearms found in the

neighborhood can be attributed to Guyton. Nor does his

general motive to evade authorities, without more, permit such

an inference. That is especially true here, where there were

nearly a dozen other defendants involved in this drug-

trafficking conspiracy and the drug operations involved many

houses in the same neighborhood.

On this record, a reasonable jury could not infer that

Guyton constructively possessed the two firearms found in the

derelict house. So we will vacate Guyton’s conviction on

Count 3 and remand for the District Court to enter a judgment

of acquittal on that count.

4

For that same reason, the other cases the Government cites

are inapt. In United States v. Benjamin, the firearm was found

in the defendant’s basement, and the evidence showed that the

defendant had previously used that firearm. 711 F.3d 371, 377

(3d Cir. 2013). Similarly, in United States v. Walker, the

firearm was found on the floorboard of the car the defendant

was driving. 545 F.3d 1081, 1088 (D.C. Cir. 2008). And the

record in United States v. Ingram showed the defendant’s

dominion and control over a handgun found below an

apartment window: he had been spotted throwing drugs over

the apartment’s balcony, there was a handgun case and manual

inside the apartment, and the window screen of the apartment

was ajar. 207 F. App’x. 147, 150, 154–55 (3d Cir. 2006).

11

III

Guyton also argues that the District Court erroneously

charged the jury on the mens rea element of his drug-

trafficking charges. He contends that the instructions did not

follow McFadden v. United States, which sets forth the

requirements for proving knowledge of Analogue Act

violations. 5 576 U.S. 186 (2015). We agree. But because

Guyton never objected to these instructions as required by Fed.

R. Crim. P. 52(b), plain error applies. We will reverse only if

(1) there was an “error”; (2) the error was “plain”; (3) the error

prejudiced or “affect[ed] substantial rights”; and (4) not

correcting the error would “seriously affect[] the fairness,

integrity or public reputation of judicial proceedings.” United

States v. Olano, 507 U.S. 725, 732 (1993) (citation modified).

As we shall explain, Guyton cannot satisfy prong three.

A

To convict Guyton under 21 U.S.C. § 841, the

Government had to prove knowledge. McFadden, 576 U.S. at

194. Because Guyton was charged with distributing and

possessing analogue substances, the Government could prove

its case by showing: (1) that Guyton knew the substance was

“actually listed on the federal drug schedules or treated as such

by operation of the Analogue Act” or (2) that he knew of

“features” that made it an analogue, such as chemical structure

5

The Controlled Substance Analogue Enforcement Act of

1986 “identifies a category of substances substantially similar

to those listed on the federal controlled substance schedules”

and “instructs courts to treat those analogues” as schedule I

controlled substances if they are intended for human

consumption. McFadden, 576 U.S. at 188.

12

or physiological effects that are “substantially similar” to those

of a controlled substance. Id. The District Court’s instructions

were mistaken with respect to both options.

1

The District Court’s instruction on the first McFadden

option contained two errors. The Court instructed the jury that

Guyton need not know the acts charged “amounted to a crime.”

App. 597. That was incorrect because McFadden’s first option

requires proof that the defendant knew he was violating some

federal law. See 576 U.S. at 195 n.3. The Government insists

that the District Court’s “amounted to a crime” language

referred only to McFadden’s second option, but that reading of

the record is untenable. The District Court gave that charge

before giving both McFadden instructions. It did not restrict

the charge to the second McFadden option, so it applied

equally to the first.

The District Court also erred by instructing the jury that

it could find knowledge if Guyton knew the “legal status of the

substance.” App. 597. That is because McFadden requires that

the defendant know that the analogue substance is controlled

under a federal law, not just “some law.” 576 U.S. at 195. The

Government rejoins that “in the context of the overall charge,”

the instructions clearly referred to federal law. Gov’t Br. 18

(citation omitted). It argues that the phrase “legal status”

referred back to “the status of being a ‘controlled substance’

and ‘analogue,’ which are terms of federal law.” Gov’t Br. 17

(citations omitted). So, the Government suggests, the jury

understood that the mens rea element required Guyton to know

the analogue’s status under federal drug laws. That argument

is unpersuasive.

13

“Controlled substance” and “analogue” are not

exclusively federal statutory terms. See, e.g., 35 P.S. §§ 780-

102, 780-104 (scheduling “controlled substances” and

“analogues,” respectively). Indeed, just before the charge at

issue, the District Court defined “controlled substance” for the

jury as “some kind of a prohibited drug,” without reference to

federal law. App. 596. That ambiguity was exacerbated by the

various references to Pennsylvania’s controlled substance laws

throughout trial. So it is far from clear that “legal status”

referred exclusively to federal drug laws, as required by

McFadden. 6

2

The District Court’s instruction on McFadden’s second

option was also erroneous. The Court correctly instructed the

jury that it could find knowledge if Guyton knew “the chemical

structure and physiological effects of that substance.” App.

597. But that instruction was incomplete because McFadden

requires a comparison: that the defendant knew the analogue

substance had a chemical structure or a physiological effect

6

The Government advances two additional arguments. First, it

says that the District Court “never suggested that Guyton could

be convicted based on his knowledge of state law.” Gov’t Br.

17. But the lack of explicit reference to state law does not

amount to an affirmative reference to federal law, which

McFadden requires. Second, the Government emphasizes that

the District Court’s abridged instruction mirrored language in

the Fourth Circuit’s McFadden opinion on remand from the

Supreme Court. But elsewhere in the opinion, the Fourth

Circuit described the correct legal standard in full. See United

States v. McFadden, 823 F.3d 217, 223–28 (4th Cir. 2016).

14

substantially similar to that of a controlled substance. 576 U.S.

at 194.

The Government again argues that, when reviewed in

context, this instruction was proper. Earlier in its instructions,

the District Court had defined a fentanyl analogue as having a

“chemical structure which is substantially similar to the

chemical structure of fentanyl,” and “a stimulant, depressant,

or hallucinogenic effect on the central nervous system that is

substantially similar to or greater than” that of fentanyl. App.

596. The Government argues that this definition was

“permissibly incorporated” into the later charge on the

knowledge element. Gov’t Br. 19. Once again, we are not

persuaded.

The District Court defined “analogue of fentanyl” while

instructing the jury on the object of the underlying offense, a

distinct element from mens rea. App. 596. And the District

Court did not cross reference that definition when it gave the

subsequent mens rea instruction. On this record, it is not

apparent that the earlier definition was incorporated into the

later charge, and we will not assume that the jury drew such an

inference.

* * *

The upshot is that the District Court erred in instructing

the jury on the mens rea requirement on Counts 1, 2, 5, 6, and

7. And the error was plain because it was “clear” under

McFadden. United States v. Adams, 252 F.3d 276, 286 (3d Cir.

2001) (citation modified).

15

B

At Olano’s third prong, Guyton must show prejudice:

“a reasonable probability” that “the outcome of the proceeding

would have been different” with properly worded instructions.

Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)

(citation modified). Guyton cannot make that showing here

because there is overwhelming evidence that he knew he was

trafficking federally controlled substances, which satisfies

McFadden’s first option.

Guyton knew his drugs were “subject to seizure at

customs.” McFadden, 576 U.S. at 192 n.1. He told Chinese

suppliers to “camouflage” his opioid shipments “to pass U.S.

customs,” which he noted had “been very strict lately.” Supp.

App. 25–26. And in an inculpatory homage to the drug-

trafficking kingpin of the acclaimed television series The Wire,

Guyton instructed that the shipment be mailed to “Avon

Barksdale.” Supp. App. 16–17. These efforts to dodge

Customs, along with the “concealment of his activities” and

other “evasive behavior,” provided compelling evidence that

Guyton knew the drugs in the intercepted shipment—the basis

for Count 7—were federally controlled. McFadden, 576 U.S.

at 192 n.1. 7

Because the evidence shows that Guyton had the

requisite knowledge under § 841(b), he has not established that

7

That evidence also supports Guyton’s other drug-related

convictions (Counts 1, 2, 5, and 6) because he trafficked the

same substance found in the intercepted shipment—

cyclopropyl fentanyl. So he continued to know that his

substances were subject to seizure by Customs, and thus

controlled under federal law.

16

the District Court’s instructional errors affected his substantial

rights. So we find no reversible error on this point.

IV

Guyton argues that the District Court constructively

amended Counts 8 and 9 of the indictment. Those counts

charged him with international money laundering under 18

U.S.C. § 1956(a)(2)(A), alleging that he “transmit[ed] and

transfer[ed] funds from a place in the United States to a place

outside the United States” to promote drug trafficking. App.

47–48. But when instructing the jury, the District Court

charged domestic money laundering under 18 U.S.C.

§ 1956(a)(1)(A)(i). The Court instructed the jury to decide

whether “Guyton conducted, or attempted to conduct, a

financial transaction, which affected interstate commerce,”

with criminal proceeds to promote drug trafficking. App. 610.

Guyton contends that this instruction amounted to a

constructive amendment because it permitted the jury to

convict him of an offense different from the one charged in the

indictment. See United States v. Daraio, 445 F.3d 254, 259–60

(3d Cir. 2006) (explaining that a constructive amendment

occurs when evidence, arguments, or jury instructions “modify

essential terms of the charged offense” so that “there is a

substantial likelihood that the jury may have convicted the

defendant for an offense differing from” what the indictment

“actually charged”).

Relying on United States v. Carey, Guyton contends

that his motion for judgment of acquittal—which did not

mention a constructive amendment—preserved his argument.

72 F.4th 521 (3d Cir. 2023). We disagree because Carey held

that “attacking the sufficiency of the evidence” in a Rule 29

motion preserved a challenge to an improper variance, not a

17

constructive amendment. Id. at 529 & n.9 (explaining that an

improper variance occurs when the trial evidence materially

differs from the facts alleged in the indictment); see Fed. R.

Crim. P. 29. Constructive amendments and variances are

distinct arguments that stem from different constitutional

provisions. United States v. Vosburgh, 602 F.3d 512, 532 n.20

(3d Cir. 2010). In other contexts, Rule 29 motions have been

held not to preserve new arguments on appeal. See, e.g., United

States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002) (holding

that a new argument about the sufficiency of the evidence was

unpreserved). Guyton does not provide any good reason to

depart from that rule, so we will review for plain error. See Fed.

R. Crim. P. 52(b). And we need not decide whether the District

Court constructively amended the indictment, whether it did so

plainly, or whether any error prejudiced Guyton. That is

because even if Olano’s first three prongs are all met, its fourth

prong is not.

At Olano’s fourth prong, we may decline to exercise our

discretion to reverse constructive-amendment errors “if (1) the

charged and uncharged crimes were closely linked and (2) the

evidence of guilt on the closely linked but uncharged crime is

overwhelming and essentially uncontroverted.” United States

v. Greenspan, 923 F.3d 138, 153 (3d Cir. 2019) (citation

modified). Both factors are satisfied here.

First, the two acts of money laundering penalized in

each subsection are closely linked. The indictment charged that

Guyton “knowingly transmit[ted] and transfer[red] funds from

a place in the United States to a place outside the United States”

with intent to promote drug trafficking. App. 47–48; see 18

U.S.C. § 1956(a)(2)(A). The unindicted act in the jury

instructions charged “conduct[ing]”—such as “initiating,

concluding, or participating” in—a “financial transaction” with

18

the intent “to promote the carrying on of illegal drug

trafficking.” App. 611; see 18 U.S.C. § 1956(a)(1)(A)(i),

(c)(4). As is apparent from the text of the two subsections, the

differences between them are “slight.” United States v. Carr,

25 F.3d 1194, 1204 (3d Cir. 1994). Their objects—the

promotion of drug trafficking—are the same. Compare 18

U.S.C. § 1956(a)(1)(A)(i), with id. § 1956(a)(2)(A). And the

prohibited acts—transmittal/transferal and conducting—are

“so closely linked here that we are convinced that the fairness,

integrity or public reputation of judicial proceedings is not

implicated.” United States v. Gonzalez Edeza, 359 F.3d 1246,

1252 (10th Cir. 2004) (citation modified).

Second, evidence of the unindicted crime—that Guyton

“conducted” a “financial transaction” to promote drug

trafficking—is “essentially uncontroverted.” Greenspan, 923

F.3d at 153. In Skype messages to foreign suppliers, Guyton

requested “fentanyl products” and was told that he would

receive “a good product of opioids.” Supp. App. 14. He

repeatedly asked suppliers how they “camouflage[d]” the

drugs to evade Customs, expressing concern that U.S.

“Customs [has] been very strict lately.” Supp. App. 12–13, 26.

One supplier sent Guyton “MoneyGram Payment Details” so

he could pay for the drugs. Supp. App. 12. MoneyGram

records reflect those payments, indicating that multiple

monetary transfers made in Guyton’s name were sent to

recipients in China. Columns in the MoneyGram spreadsheet

entitled “Rcv Date” and “Rcv Time” list dates and times next

to those transfers, indicating that the transactions were

completed. App. 671.

Taken together, this evidence shows that Guyton both

“initiat[ed]” and “conduct[ed]” monetary transfers to foreign

recipients in exchange for synthetic opioids. App. 611; see 18

19

U.S.C. § 1956(c)(4). Because the unindicted conduct is closely

linked to the indicted conduct, and the evidence of the

unindicted conduct was overwhelming and essentially

uncontroverted, the trial’s fairness, integrity, or public

reputation would not be affected by letting the alleged error

stand. See Greenspan, 923 F.3d at 153–54. So the error does

not warrant reversal.

V

Guyton also claims, for the first time on appeal, that the

District Court erred by imposing recidivist enhancements to

three of his drug convictions (Counts 1, 2, and 7) under 21

U.S.C. § 841(b)(1)(A) and (B). The Government filed an

information under 21 U.S.C. § 851(a), alleging that Guyton’s

2011 conviction under 35 P.S. § 780-113(a)(30) triggered the

recidivist sentencing provisions of § 841(b). But the District

Court failed to give him a hearing as required by 21 U.S.C.

§ 851(b). Guyton says this constitutes reversible error.

A

To begin, we must decide a question of first impression

for this Court: “whether plain error review should apply if the

defendant fails to object to § 851[b] deficiencies.” United

States v. Isaac, 655 F.3d 148, 156 (3d Cir. 2011). Ordinarily,

unpreserved errors are reviewed for plain error. Fed. R. Crim.

P. 52(b). See Olano, 507 U.S. at 731. But Guyton, relying on a

decision of another court, argues that we should depart from

that rule and apply de novo review. See United States v.

20

Baugham, 613 F.3d 291, 296 (D.C. Cir. 2010) (per curiam).

We disagree.

In Baugham, the D.C. Circuit held that harmless error

review applied to an unpreserved challenge to a district court’s

failure to colloquy a defendant under § 851(b). Id. at 295–96.

In reaching that conclusion, the Baugham Court appealed to

the purpose of § 851(b): “to place the procedural onus on the

district court to ensure defendants are fully aware of their

rights.” Id. at 296. It reasoned that penalizing the defendant for

the district court’s oversight would “pervert the statute.” Id.

But see id. at 297 (Brown, J., concurring in the judgment)

(arguing that plain-error review should apply).

The Ninth Circuit—the only other appellate court to

consider the standard of review for unpreserved § 851(b)

objections—went the other way and applied plain error review.

See United States v. Severino, 316 F.3d 939, 947 & n.7 (9th

Cir. 2003) (en banc). Severino acknowledged that it was “a bit

strange to require that a defendant object to the district court’s

failure to give him an admonition” under § 851(b). Id. at 947

n.7. But the Ninth Circuit “fe[lt] bound by” a Supreme Court

decision applying plain error review to defective plea

colloquies under Rule 11 of the Federal Rules of Criminal

Procedure. Id. (citing United States v. Vonn, 535 U.S. 55, 73

(2002)).

The Ninth Circuit’s approach tracks with decisions of

our sister courts that have addressed the standard of review for

unpreserved objections to § 851(a) errors. See, e.g., United

States v. Lewis, 597 F.3d 1345, 1346–47 (7th Cir. 2010)

(applying plain-error review where the Government failed to

file an information under § 851(a)); United States v. Beasley,

21

495 F.3d 142, 145–46 (4th Cir. 2007) (same); United States v.

Dodson, 288 F.3d 153, 159–161 (5th Cir. 2002) (same).

We now join the Ninth Circuit and hold that plain-error

review applies to unpreserved objections to § 851(b)

deficiencies. In doing so, we adhere to the “bright line between

harmless-error and plain-error review based on preservation.”

Greer v. United States, 593 U.S. 503, 512 (2021). And we

abide by the Supreme Court’s repeated admonition against

“any unwarranted expansion of Rule 52(b)” of the Federal

Rules of Criminal Procedure. Johnson v. United States, 520

U.S. 461, 466 (1997); see also Puckett v. United States, 556

U.S. 129, 135–36 (2009) (“The real question . . . is not whether

plain-error review applies when a defendant fails to preserve a

claim . . . but rather what conceivable reason exists for

disregarding its evident application.”).

Guyton counters that applying plain-error review here

would “penalize a defendant for not alerting the district court

to its failure to alert him” about his rights. Guyton Br. 48

(citation omitted). But the Supreme Court has rejected this

argument in a similar context, stressing “that is always the

point of the plain-error rule: the value of finality requires

defense counsel to be on his toes, not just the judge.” Vonn,

535 U.S. at 73; see also Puckett, 556 U.S. at 139 (expressing

doubt that “policy concerns can ever authorize a departure

from the Federal Rules”). That logic applies with equal force

here. While we recognize that the District Court’s failure to

colloquy Guyton is a serious matter, “the seriousness of the

error claimed does not remove consideration of it from the

ambit of the Federal Rules of Criminal Procedure.” Johnson,

520 U.S. at 466. So we decline to create an exception to the

plain-error rule for unpreserved objections to § 851(b)

deficiencies.

22

B

Applying plain-error review, we agree with Guyton that

the District Court’s § 851(b) error satisfies Olano’s first and

second prongs. The Government sought enhanced penalties for

Guyton’s drug convictions under 21 U.S.C. § 841(b) and filed

an information under 21 U.S.C. § 851(a). That triggered the

requirement that the District Court

inquire of the person with respect to whom the

information was filed whether he affirms or

denies that he has been previously convicted as

alleged in the information, and [] inform him that

any challenge to a prior conviction which is not

made before sentence is imposed may not

thereafter be raised to attack the sentence.

21 U.S.C. § 851(b). In disregarding this straightforward

command, the District Court plainly erred.

C

Guyton’s claim falters at Olano’s third step, however.

He must show “a reasonable probability that, but for the error,

the outcome of the proceeding would have been different.”

Molina-Martinez, 578 U.S. at 194 (citation modified). Guyton

argues that he has met that burden: the enhanced penalties that

the District Court imposed do not apply, and but for those

enhancements, his sentence would have been less severe. We

are not persuaded.

1

Under 21 U.S.C. § 841(b)(1)(B), the government may

seek enhanced penalties if the defendant has a prior conviction

23

for a “serious drug felony” as defined in 21 U.S.C. § 802(58).

That statute, in turn, provides that a “serious drug felony” is an

offense described in 18 U.S.C. § 924(e)(2) “for which (A) the

offender served a term of imprisonment of more than 12

months; and (B) the offender’s release from any term of

imprisonment was within 15 years of the commencement of

the instant offense.” Id. § 802(58).

The Government’s § 851 information alleged that

Guyton’s 2011 conviction qualified as a serious drug felony.

Recall the background of the predicate offense. In March 2009,

Guyton committed drug-related offenses but was not

immediately arrested. On April 8, 2009, he was detained for

charges pertaining to an unrelated case. Seven months later,

while still in custody for the unrelated case, Guyton was

charged with the predicate offense. He posted bond the same

day but remained in jail on the unrelated case. Guyton pleaded

guilty to the charges in the unrelated case on December 10 and

was sentenced to time served: the pretrial detention he had

served from April 8 to December 10. He remained imprisoned

until December 20, 2009.

In 2011, Guyton was convicted of the predicate state

offense. He was sentenced to 18 to 36 months’ imprisonment

on that offense on December 15, 2011. But under

Pennsylvania’s recidivism risk reduction incentive, that

sentence was reduced to one year, one month, and fifteen days.

As part of that sentence, the state court credited Guyton with

the 256 days he was imprisoned from April 9 to December 20,

2009, even though most of that time had been previously

credited to the unrelated conviction. Because of that leniency,

24

Guyton was released on July 22, 2012, after serving only 220

days from the day he was sentenced. 8

Guyton argues that his 2011 conviction does not qualify

as a “serious drug felony” because he did not serve “a term of

imprisonment of more than 12 months.” 21 U.S.C. § 802(58).

Even if pretrial detention counts toward a “term of

imprisonment,” Guyton reasons, it should not count here

because most of the pretrial detention was served on an

unrelated offense. Without those 256 days, Guyton argues, he

served only 220 days, a term of imprisonment less than 12

months.

2

To resolve this convoluted issue, we must decide

another question of first impression: whether “term of

imprisonment” in § 802(58) includes time served in pretrial

detention later credited to the sentence. We hold that it does.

Start with the text of § 802(58). The statute does not

define “term of imprisonment.” We generally presume that

8

On appeal, Guyton has submitted state prison records that

(1) confirm that his recidivism risk reduction incentive

minimum sentence for his 2011 conviction was one year, one

month, and fifteen days and (2) demonstrate that he was

released on July 22, 2012. Although these records were not

before the District Court, we take notice of them. See In re

Indian Palms Assoc., 61 F.3d 197, 205–06 (3d Cir. 1995)

(“Judicial notice may be taken at any stage of the proceeding,

including on appeal, as long as it is not unfair to a party to do

so and does not undermine the trial court’s factfinding

authority.” (citation modified)).

25

terms used in statutes carry the same meaning that they have in

ordinary usage at the time Congress adopted them. See Niz-

Chavez v. Garland, 593 U.S. 155, 160 (2021). And at the time

Congress created the category “serious drug felony,”

“imprisonment” meant “[t]he act of confining a person,” “[t]he

quality, state, or condition of being confined,” or “[t]he period

during which a person is not at liberty.” Black’s Law

Dictionary 875 (10th ed. 2014). These definitions comfortably

encompass pretrial detention.

Moreover, nothing in the statute distinguishes time

served before conviction from time served after the imposition

of the sentence. Had Congress intended to draw such a line, it

could have used narrower language, such as “after a

conviction” or “following a conviction.” See e.g., Bail Reform

Act of 1984, Pub. L. No. 98-473, § 209(d)(4), 98 Stat. 1837,

1987 (adding Federal Rule of Criminal Procedure 46(h),

allowing courts to direct forfeiture of property “after

conviction of the offense charged” (emphasis added)).

Sensibly read, “term of imprisonment” includes pretrial

detention later credited to the sentence imposed.

Guyton insists that even if “term of imprisonment”

includes pretrial detention, it does not do so here because the

prearrest detention credited to him was for charges unrelated

to the 2011 conviction. He emphasizes that the predicate

offense must be the one “for which” he served more than 12

months. Reply Br. 25 (quoting 21 U.S.C. § 802(58)).

That argument does not get Guyton far. “[F]or which”

refers to the “serious drug felony”—here, Guyton’s drug-

related conviction for the March 2009 conduct. 21 U.S.C.

§ 802(58)(B). And Guyton did serve “a term of imprisonment

of more than 12 months” for that offense: the 256 days before

26

he was sentenced plus the 220 days after he was sentenced. See

Spina v. Dep’t of Homeland Sec., 470 F.3d 116, 128 (2d Cir.

2006) (noting the “common understanding” among the 50

States, the District of Columbia, and the federal government is

that “any credited pre-conviction detention effectively

becomes time served on the imposed term of imprisonment”).

That the sentencing court retroactively converted Guyton’s

prearrest detention on an unrelated charge to time served on the

2011 conviction makes no difference under § 802(58)(B).

Once the sentencing order credited that time to Guyton’s

sentence, it became part of his “term of imprisonment.” Cf.

Moreno-Cebrero v. Gonzales, 485 F.3d 395, 398–400 (7th Cir.

2007) (pre-conviction detention credited to defendant’s

sentence counts toward the five-year “term of imprisonment”

under 8 U.S.C. § 1182(c)). 9

9

Guyton also contends that his pretrial detention cannot

constitute part of the “term of imprisonment” because most of

those 256 days were credited to a previous sentence for an

unrelated conviction. Because federal sentencing law prohibits

this kind of double counting, he argues that “term of

imprisonment” should not be read to encompass it. Guyton

raised this argument for the first time in his reply brief, so it is

forfeited. United States v. James, 955 F.3d 336, 345 n.8 (3d

Cir. 2020); see also Fed. R. App. P. 28(a)(5). In any event, the

argument is unpersuasive. “[T]erm of imprisonment” refers

only to time actually “served.” 21 U.S.C. § 802(58).

Procedural defects like double-counting are not germane to

that inquiry. And if that weren’t enough, Guyton’s

interpretation would have the perverse effect of penalizing a

recidivist who had committed only one crime more severely

than a repeat offender like Guyton.

27

In sum: we hold that when, as in this case, a defendant

is credited with time served in pretrial detention—thereby

reducing the time he will have to serve on his term of

imprisonment following conviction—that detention is part of

the “term of imprisonment” “for which” the offender “served”

under 21 U.S.C. § 802(58). As a result, Guyton served more

than 12 months’ imprisonment for his 2011 conviction and was

subject to the “serious drug felony” enhancements in 21 U.S.C.

§ 841(b)(1)(A) and (B). So the District Court’s failure to

colloquy him under § 851(b) did not affect the outcome of the

proceedings.

VI

In the alternative, Guyton argues that the recidivist

enhancements violated his Fifth and Sixth Amendment rights

under Alleyne v. United States, 570 U.S. 99 (2013), and

Apprendi v. New Jersey, 530 U.S. 466 (2000). He did not

preserve these arguments, so we review them for plain error.

Under Apprendi, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” 530 U.S. at

490. That rule also applies to facts that increase the statutory

minimum sentence for a crime. Alleyne, 570 U.S. at 116. Here,

the indictment stated that Guyton “served a term of

imprisonment of more than twelve months” for the 2011

conviction and was released “within fifteen years of the

commencement of” the instant federal offenses. App. 49.

Those two facts were necessary for the 2011 conviction to

constitute a “serious drug felony.” 21 U.S.C. § 802(58). But

28

the jury was not asked to find them. That was plain error under

Apprendi and Alleyne, which the Government concedes.

But Guyton cannot satisfy Olano’s third prong: that this

error affected the outcome of the proceeding. See Molina-

Martinez, 578 U.S. at 194. To make that determination, we

must first assess whether the Apprendi/Alleyne violation was a

mixed trial and sentencing error or a pure sentencing error.

United States v. Johnson, 899 F.3d 191, 198 (3d Cir. 2018).

That classification informs the scope of our prejudice analysis:

if the error is a pure sentencing one, we may not consider the

trial record; otherwise, we may. See id. at 201. A trial error

“occurs when the defendant is charged with, convicted of, and

sentenced for a crime, but one of the elements of that crime is

not submitted to the jury.” Id. By contrast, a pure sentencing

error occurs when “a defendant is charged with and convicted

of one crime, but sentenced for another.” Id.

The Apprendi/Alleyne violation here was a mixed “trial

and sentencing” error. Johnson, 899 F.3d at 198 n.2. The facts

increasing the mandatory minimum and maximum sentences

were charged in the indictment. But the jury was not asked to

find them, either in the instructions or on the verdict form. The

District Court imposed a sentence based on those facts anyway.

Because this was not a pure sentencing error, we may properly

consider the trial record on plain-error review. See id. at 201.

And the District Court’s “failure to instruct on an element

listed in the indictment is not plain error if we determine that it

is clear beyond a reasonable doubt that a rational jury would

have found the element in question absent the error.” Id. at 200

(citation modified).

Applying that standard, we conclude that the

Alleyne/Apprendi error did not prejudice Guyton. The record

29

shows that Guyton served more than a year for the 2011

conviction and that he was released in 2012, well within fifteen

years of his 2017 offenses that gave rise to this case. See Greer,

593 U.S. at 511 (explaining that “an appellate court conducting

plain-error review may consider the entire record,” including

PSRs). In short, there is no reasonable probability that a

properly instructed jury would have failed to find the two facts

necessary to trigger the recidivist enhancements. So Guyton

has not shown an effect on his substantial rights to satisfy the

third prong of plain-error review. 10 See Johnson, 899 F.3d at

200.

* * *

Guyton’s appellate counsel thoroughly examined the

record below and skillfully identified many errors in the trial

court. But none are reversible except the denial of Guyton’s

motion for judgment of acquittal on Count 3. Accordingly, we

will vacate that conviction and remand for the District Court to

enter a judgment of acquittal on Count 3. We will affirm the

remaining eight counts and the judgment of sentence.

10

Guyton also brings facial and as-applied challenges to his

§ 922(g) convictions (Counts 3 and 4) under the Second

Amendment. As he concedes, these arguments are foreclosed

by United States v. Dorsey, 105 F.4th 526, 532–33 (3d Cir.

2024). We acknowledge that those arguments are preserved for

further review.

30