United States v. Malik Nasir

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-2888

_____________

UNITED STATES OF AMERICA

v.

MALIK NASIR,

Appellant

_______________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-16-cr-00015-001)

District Judge: Hon. Leonard P. Stark

_______________

Argued on November 12, 2019 before Merits Panel

Argued En Banc on June 24, 2020

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

*

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.

2

Jared McClain

New Civil Liberties Alliance

1225 19th 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**

**

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,

3

_______________

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, 139 S. Ct. 2191 (2019), we will vacate his conviction as

a felon in possession of a firearm and remand for a new trial on

that charge, as well as for resentencing on the remaining counts

of conviction.

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.

4

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.1

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.

1

Nasir had initially agreed to rent unit C43, but soon

after transferred to unit C69.

5

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

6

illegally possessed a firearm. Pursuant to Old Chief v. United

States, 519 U.S. 172 (1997),2 he stipulated that, prior to the date

when he allegedly possessed the firearm, he had been

“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.”3 (Supp. App. at 21.) The

jury convicted him on all three counts of the indictment.

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.

7

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. DISCUSSION4

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.)

4

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.

8

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.5 Nasir did not preserve that argument in the District

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.

9

Court, so we review the denial of his motion for judgment of

acquittal for plain error.6 United States v. Olano, 507 U.S. 725,

731 (1993). We will reverse for plain error only if there was

an actual error that is plain, that affects “the outcome of the

district court proceedings,” and that “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

Id. at 734-36 (citations and internal quotation marks omitted)

(alteration in original).

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

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.

10

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. Subsection

(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).

11

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 Nasir’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.7 We conclude that the District Court

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.

12

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, 556 U.S. at 343 (citation and internal quotation

marks omitted). Whether viewed as a question of probable

cause to arrest Nasir or probable cause to search the SUV under

the automobile exception, however, the pertinent facts and the

outcome are the same.

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, 462 U.S. 213, 242 (1983) (“[A]n officer may

rely upon information received through an informant, rather

than upon his direct observations, so long as the informant’s

statement is reasonably corroborated by other matters within

the officer’s knowledge.” (citation and internal quotation

marks omitted)). They discharged that duty in this case. The

13

arresting officers personally knew the following at the time of

the arrest and related search of the vehicle: according to a

background check, Nasir had a history of drug dealing; the

owner of the storage facility had reported Nasir engaged in

suspicious activity at unit C69, including making numerous

trips to the storage unit, sometimes several in a day; the owner

had taken a photograph that showed items in the unit consistent

with drug distribution; an officer had seen Nasir put a bag in

the back of his car and drive toward the storage facility; and a

narcotics dog had positively alerted to drugs at unit C69.

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.8 We will therefore affirm the District

Court’s denial of Nasir’s motion to suppress.

C. The Ruling on Alleged Juror Bias

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.” (App. 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.

14

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-

guessing 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 that 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

15

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?

[GOVERNMENT’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

16

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 respect 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

17

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, 880 F.3d 80, 83 (3d Cir. 2018). We agree with Nasir

that the plain language of the guidelines does not include

inchoate crimes, so he must be resentenced.

1. The Definition of “Controlled Substance

Offenses” 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

18

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 guidelines’ 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.

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 punishment.” Offense, Black’s Law

Dictionary (11th ed. 2019). Inchoate offenses include, for

example, the attempt, conspiracy, or solicitation to commit a

crime. Id.

19

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.11

2. The Effect of the Commentary on our

Interpretation of the Guidelines

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.

20

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,12 governs the effect to be given to the guidelines

commentary.

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 Administration’s interpretation of the

regulation. Seminole Rock, 325 U.S. at 417. Seminole Rock

thus became shorthand for the doctrine of deference to an

administrative agency’s interpretation of its own regulations.

21

Our precedent has followed that course. In United

States v. Hightower, 25 F.3d 182 (3d Cir. 1994), we applied the

principles set forth in Stinson to determine whether inchoate

crimes are covered by sections 4B1.1 and 4B1.2 of the

sentencing guidelines. We asked “whether the Sentencing

Commission exceeded its statutory authority by expanding the

definition of a controlled substance offense” when it included

inchoate offenses as part of the definition of the term

“controlled substance offense” in the commentary to section

4B1.2. Hightower, 25 F.3d at 184 (internal quotation marks

omitted). We determined that the commentary to 4B1.2 was

explanatory and therefore binding. Id. at 185-87. Specifically,

although we admitted that the inclusion of inchoate crimes was

an “expansion of the definition of a controlled substance

offense[,]” we said that the expansion was “not ‘inconsistent

with, or a plainly erroneous reading of,’ § 4B1.2(2) of the

[s]entencing [g]uidelines, and that it does not ‘violate[ ] the

Constitution or a federal statute.’” Id. at 187 (second two

alterations in original) (quoting Stinson, 508 U.S. at 38). We

later followed that precedent in United States v. Glass, 904

F.3d 319 (3d Cir. 2018), in which we held that a conviction

under a Pennsylvania “attempt” statute qualified as a predicate

controlled substance offense for the career offender

enhancement under the guidelines.

More than fifty years later, in Auer v. Robbins, 519 U.S. 452

(1997), the Court reinforced that doctrine. The doctrine is thus

sometimes referred to as Seminole Rock deference, after the

case that introduced it, and at other times referred to as Auer

deference, the more recent reiteration of the doctrine.

22

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, 139 S. Ct. 2400

(2019), it is clear that such an interpretation is not warranted.

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 deference.” 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

23

independent inquiry into whether the character and context of

the agency interpretation entitles it to controlling weight[,]”

including whether it is the agency’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 interpretation 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

strengthened when contrasted with the definition of “crime of

24

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 guidelines, the commentary “never passes through the

gauntlets of congressional review or notice and comment.”

United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en

banc) (per curiam); see also United States v. Swinton, 797 F.

App’x 589, 602 (2d Cir. 2019) (quoting same and remanding

25

for resentencing with an instruction for the district court to

“consider again whether, in light of the concerns addressed in

Havis and Winstead, the career offender [g]uideline applies” to

a defendant whose predicate offenses for the career offender

enhancement include a conviction for attempted criminal sale

of a controlled substance).

On that basis, along with the plain text of the guidelines,

another of our sister courts of appeals has rejected the notion

that commentary to 4B1.2(b) can expand the guidelines’ scope.

See Havis, 927 F.3d at 386. (Because it has not been approved

by Congress, “commentary has no independent legal force—it

serves only to interpret the [g]uidelines’ text, not to replace or

modify it.”). We too agree that separation-of-powers concerns

advise against any interpretation of the commentary that

expands the substantive law set forth in the guidelines

themselves. Cf. 28 U.S.C. § 995(a)(20) (granting the

Sentencing Commission power to “make recommendations to

Congress concerning modification or enactment of statutes

relating to sentencing[.]” (emphasis added)).

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

26

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.” 139 S. Ct. at 2200. The latter half of

that holding – that the government must prove that the

defendant knew of his status as a person prohibited from

having a gun – announced a newly found element of the crime.

For a defendant like Nasir, a previously convicted felon, that

knowledge-of-status element means that the government has to

prove that he knew he was a “person … who has been

convicted … of … a crime punishable by imprisonment for a

term exceeding one year.” 18 U.S.C. § 922(g)(1). Proving

that a felon knew he possessed a gun remains necessary but is

no longer sufficient for a conviction. Proof of knowledge of

status is now essential.

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 affected “the outcome of the district court

proceedings,” and (4) that “seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.” Olano,

27

507 U.S. at 734-36 (citations omitted). Even if the first three

steps of the test are met, the fourth step grants us a degree of

discretion in determining whether to correct the error. 13

Whether the alleged error is plain is evaluated based on the law

at “the time of appellate review[,]” regardless of whether it was

plain at the time of trial. Henderson v. United States, 568 U.S.

266, 269 (2013). The government concedes that, in light of

Rehaif’s applicability in this case, Nasir has satisfied the first

two steps of Olano. The dispute here is whether the third and

fourth steps are satisfied.

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

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.” (Dissent 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.

28

no proof of it was required.14 It is hardly surprising, then, that

the government did not offer any evidence at Nasir’s trial that

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 Dissent’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.” 139 S. Ct. at 2201.

So we think our emphasis on the unexpected and striking

impact of Rehaif is fully justified.

What is not justified is the Dissent’s suggestion that

Nasir’s failure to object “deprived the government and trial

court of … opportunities” to “supplement the record with

additional evidence of Nasir’s mens rea.” (Dissent at

5.) Regardless of whether the knowledge-of-status element

29

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.

30

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 will vacate Nasir’s conviction for being a felon in

possession of a firearm and will remand for a new trial on that

charge.15

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, 418 U.S. 87, 117 (1974)

(“It is generally sufficient that an indictment set forth the

offense in the words of the statute itself, as long as ‘those words

of themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements necessary

to constitute the offence intended to be punished.’” (quoting

31

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, “the

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.16 4 William

United States v. Carll, 105 U.S. 611, 612 (1882)). Because the

language of the indictment is not uncertain or ambiguous, there

was no error, much less plain error, in allowing prosecution of

the § 922(g) count of the indictment.

16

On this point, we are in full agreement with the

concurrence of our colleague Judge Matey, which eloquently

emphasizes the right to trial by jury. Although our colleagues

in dissent 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

32

Blackstone, Commentaries on the Laws of England, *343-44.

The 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.

33

approach. To the contrary, given the dictates of the Due

Process Clause, as described in Winship, 397 U.S. at 364, our

inquiry must necessarily focus on whether the

government did prove – or at least introduced sufficient

evidence to prove – each element of the offense beyond a

reasonable doubt at the actual trial. And Nasir’s right to trial

by jury reinforces that point: “Consistent with the jury-trial

guarantee, the question [that precedent] instructs the reviewing

court to consider is not what effect the constitutional error

might generally be expected to have upon a reasonable jury,

but rather what effect it had upon the guilty verdict in the case

at hand.” Sullivan v. Louisiana, 508 U.S. 275, 280 (1993)

(emphasis added).

Plain error is a deferential standard, to be sure, but it

does not alter fundamental constitutional precepts.17

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.

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.

34

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

35

importance of the government carrying its constitutional

burden at trial.18

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 issue.” 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.’” 527 U.S. at 16. So again, it was not in spite

36

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,19 other courts of appeals that have

considered whether 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.

19

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

government “provided substantial post-trial evidence

37

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, 956 F.3d 270, 284 (5th Cir. 2020) (“We note that

our sister courts have taken different paths on this issue.”).

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, 957 F.3d 691, 695 & n.1 (6th Cir. 2020);

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019).

A second rationale holds that a reviewing court is limited to the

trial record on the first three steps of plain-error review but may

look to the entire record at the fourth step, which involves the

exercise of discretion in considering potential harm to the

reputation of the judiciary. United States v. Owens, 966 F.3d

700, 706-07 (8th Cir. 2020); United States v. Maez, 960 F.3d

949, 961 (7th Cir. 2020); United States v. Miller, 954 F.3d 551,

supporting [the defendant’s] knowledge of his prohibited

status” but “declin[ing] the Government’s invitation to engage

in the level of judicial factfinding that would be required to

affirm,” given the trial record), while the dissent appears to

have assumed that it was not so limited, id. at 419-20

(Quattlebaum, J., dissenting) (asserting that the conviction

should be sustained because the defendant had previously

served more than twelve years in prison for second-degree

murder, information that was not presented to the jury).

38

560 (2d Cir. 2020). We respectfully disagree with both of

those perspectives, neither of which can comfortably co-exist

with our own precedent, nor, to our thinking, with due process,

the Sixth Amendment, or relevant Supreme Court authority.

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. 941 F.3d at 1019. When the

case reached the Supreme Court on certiorari, the Court

vacated the judgment and sent the matter back for further

proceedings consistent with Rehaif. Id. On remand, the

Eleventh Circuit determined that, even though it was reviewing

a conviction after a jury trial, it could nonetheless “consult the

whole record when considering the effect of any error on [the

defendant’s] substantial rights.” Id. at 1021. As authority for

that premise, the Court cited Vonn, which held that, when a

defendant has entered a guilty plea and later asserts on appeal

that there was a failure to ensure the plea’s voluntariness

through a colloquy under Rule 11 of the Federal Rules of

Criminal Procedure,20 “a [previously] silent defendant has the

burden to satisfy the plain-error rule and that a reviewing court

may consult the whole record when considering the effect of

any error on substantial rights.” 535 U.S. at 59; see Reed, 941

F.3d at 1021. Other circuits have cited Reed for the premise

that, on plain-error review, an appeals court may satisfy itself

of an element with evidence that was never presented to a jury.

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).

39

See United States v. Mancillas, 789 F. App’x 549, 550 (7th Cir.

2020); cf. Ward, 957 F.3d at 695 n.1 (6th Cir. 2020) (citing

Vonn, 535 U.S. at 59).

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 the 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

proceeding21 – its burden to “convince the trier [of fact] of all

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

40

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.

41

failure of proof is at issue, it is simply beside the point to rely

on case law dealing with the voluntariness of plea colloquies.22

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

42

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.23

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.

23

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 convictions. See

Huntsberry, 956 F.3d at 285-86. Subsequently, however, the

Fifth Circuit decided that it is permitted to look outside the trial

record at the fourth step. See United States v. Staggers, 961

F.3d 745, 756 (5th Cir. 2020); see also United States v. Burden,

964 F.3d 339, 348 n.8 (5th Cir. 2020). In another post-Rehaif

case, the First Circuit similarly indicated that judicial notice

might be a proper path to resolution, but in the end, it did not

take that path. United States v. Lara, --- F.3d ---, Nos. 17-1957,

43

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 the 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, 2020 WL 4668535, at *13 (1st Cir. Aug. 12, 2020)

(noting that “the government had available to it evidence of

[the defendant’s] four recent and serious convictions from

Maine,” and although it did not present that evidence at trial,

“we regularly take judicial notice of … state court records

given their presumed reliability”). For the reasons discussed

herein, however, we are unpersuaded that judicial notice can

properly be used as a means to circumvent a defendant’s rights

to due process and trial by jury.

44

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, 960 F.3d at 961. It

reasoned that such a “restriction to the jury record flows

logically from the nature of a substantial-rights inquiry on

direct review.” Id. When asking whether a trial error affected

substantial rights, “[t]he more abstract question of the

defendant’s actual guilt or innocence is not the issue. Rather,

the appellate court asks what effect the error could have had on

the verdict in the trial actually conducted.” Id. But the court

then decided that, because the fourth step of plain-error review

is a separate, discretionary step, reviewing courts may, and

perhaps should, consider claims of actual innocence. Id. at

962. Having determined that appellate courts “have broad

discretion under prong four to leave even plain errors

uncorrected where we have no doubt as to the ultimate result

of further proceedings[,]” the court decided that step-four

“discretion necessarily implies some power to look beyond the

trial record to assess an error’s effect, at least for the errors

argued here, where … [Old Chief] prevented the government

from offering a great deal of circumstantial evidence showing”

knowledge-of-status.24 Id. at 963. The only authority cited for

looking beyond the trial record was the Second Circuit’s

decision in Miller.25 Id.

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,

970 F.3d 866 (7th Cir. 2020).

25

The First Circuit has also recently joined the ranks of

the Second and Seventh Circuits, saying that “the Supreme

45

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, 542 U.S. 74, 82

(2004)). The court’s Johnson decision had an earlier iteration

in which the expressed rationale for looking outside the trial

record was the availability of a retrial in the case and the court’s

conclusion (suspect, in our view) that the Double Jeopardy

Clause is the source of the ordinary prohibition on going

beyond the trial record when conducting appellate review.

United States v. Johnson, 963 F.3d 847, 851 (9th Cir. 2020)

(vacated). While the unusual Double Jeopardy rationale may

have made a cameo appearance in the most recent version of

Johnson, see 2020 WL 6268027, at *4 (“To satisfy the fourth

prong when a retrial would be permissible, a defendant must

offer a plausible basis for concluding that an error-free retrial

might end more favorably.” (emphasis added)), the court’s

stated basis for looking past the government’s proof at trial is

now more in line with the Olano prong four analysis in Miller

and Maez.

46

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.26 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

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.

47

plain-error review is available only to the innocent.27 That is a

proposition the Supreme Court put to rest in Rosales-Mireles

v. United States, 138 S. Ct. 1897 (2018), when it observed that

“Olano rejected a narrower rule that would have called for

relief only … where a defendant is actually innocent.” Id. at

1906.

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. “All law is technical if viewed solely from

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).

48

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.28 Given our view of the due process and jury trial

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 16.)

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, 704 F.3d 125, 138 (3d

Cir. 2013) (citation omitted) (collecting cases). More to the

point, however, we are making an independent judgment, as

we are required to do, and counting up judges who see the issue

differently does not alter our obligation. The answer to the old

saw that “fifty million Frenchmen can’t be wrong” is yes, they

can. Rehaif itself is an example of everyone except the

49

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.29

Supreme Court seeing an issue the same way and, given the

Supreme Court’s position in our judicial hierarchy, all of them

being wrong.

29

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, 940 F.3d 785, 800 (1st Cir.

2019) (reciting evidence supporting a § 922(g) conviction after

Rehaif and noting that, at trial, “the government submitted a

50

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.”30 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 felony 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,” 519 U.S. at 190, so proving knowledge

of status was never forbidden by Old Chief and is expressly

sanctioned by Federal Rule of Evidence 404(b), which states

that “[e]vidence of a crime, wrong, or other act is … admissible

for … proving … knowledge[.]” Therefore, as explained

further herein, Old Chief stipulations do not prevent the

government from introducing knowledge-of-status evidence,

as is evident from their continued use post-Rehaif. The Dissent

engages in pure speculation when it insists that, but for the

stipulation in this case, the government would have introduced

such evidence, or that the trial court would have sustained an

objection to it. (See Dissent at 14-15.)

30

Although we agree with Nasir that his conviction

under § 922(g) was plainly erroneous after Rehaif, we do not

agree with his assertion that the error was structural. The

Supreme Court has said that “structural errors are a very

51

1338, 1343 (2016) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 76 (2004)). As to his sufficiency-of-the-

evidence challenge,31 we ask whether the evidence the

government presented at trial would have been sufficient to

sustain a conviction on the knowledge-of-status element.

Because literally no evidence was presented concerning

Nasir’s knowledge of his status as a felon, it is at least

limited class of errors[.]” United States v. Marcus, 560 U.S.

258, 263 (2010) (citation and internal quotation marks

omitted). Those circumstances are not present here, and we are

not inclined to extend the structural error doctrine. We have

already said that “[t]rial errors resulting from a failure to

submit an element of an offense to the jury are not structural

defects, but instead, are subject to harmless or plain error

analysis.” United States v. Vazquez, 271 F.3d 93, 103 (3d Cir.

2001) (en banc). That is consistent with the Supreme Court’s

decisions in Neder and Johnson, which held that a judge’s

mistake in taking from the jury the responsibility to determine

the existence of an element of the crime was not structural

error. (See supra II.E.1.)

31

Nasir also alleges plain error with respect to the jury

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, 562 F.3d 231, 237 (3d Cir. 2009); see also

United States v. Cohen, 301 F.3d 152, 158 (3d Cir. 2002)

(Alito, J.) (“The usual remedy for an error in a jury instruction

is retrial[.]”).

52

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, 139 S. Ct. at 2209 (Alito, J.,

dissenting). We understand Justice Alito as making the point

that discovering a knowledge-of-status element in § 922(g)

was potentially inconsistent with the protections the Supreme

Court intended Old Chief to extend to defendants, and that

inconsistency, Justice Alito indicated, stood as another reason

why the Court’s interpretation of § 922(g) in Rehaif was

incorrect.

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

53

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.”

519 U.S. at 190 (emphasis added).

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 the 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 aware 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, 960 F.3d at 959.

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

stipulation32 means he also acknowledged he knew of his status

as a felon ever since becoming one. But Rehaif itself blocks

32

For the language of the stipulation in its entirety, see

supra note 3.

54

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

33

That is not to say that the government’s argument is

without support. See Ward, 957 F.3d at 696 (“A rational juror

could also have inferred that [the defendant] knew he was a

felon when he possessed the gun. [He] made an Old Chief

stipulation at trial, pursuant to which he acknowledged that he

‘was a convicted felon on and prior to the date of the charged

conduct[.]’ [His] lawyer also told the jury that [the defendant]

was ‘stipulating that he has a felony. So you can check that

one off the box.’ The jury could have inferred from these

statements that [the defendant] also knew that he was a

felon.”).

34

While the Dissent agrees that the stipulation does not

“necessarily prove that [Nasir] knew he was a felon when he

55

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.35

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 19-20 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.

35

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, 681 F.3d 509, 517 n.4

(3d Cir. 2012); United States v. West Indies Transp., Inc., 127

F.3d 299, 305 (3d Cir. 1997).

56

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

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 firearms.” (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.

57

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, 972 F.3d 399 (4th Cir.

2020), it recognized plain error when the government

presented no evidence to sustain a conviction on the

knowledge-of-status element. 38 Id. at 402-03. There too, the

government asserted that the defendant’s Old Chief stipulation

was evidence of knowledge-of-status, as was his “attempt to

evade the police[.]” Id. at 414-15. The court disagreed, noting

that “[i]nferring that someone knew he was prohibited from

possessing a firearm at the time of the offense based on a

stipulation at trial that he was in fact a prohibited person would

render the Supreme Court’s language in Rehaif pointless.” Id.

at 414. It also noted that the defendant’s “attempt to evade the

police … does not indicate—much less overwhelmingly

prove—that he knew his prohibited status under federal law.”

Id. at 415.

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.

58

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, 108 F.3d 505, 509 (3d Cir.

1997) (quoting Olano, 507 U.S. at 732) (first alteration in

original). That conclusion is “consistent with the Supreme

Court’s instruction that due process requires ‘proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which [the defendant] is charged.’” United States v.

Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) (quoting Winship,

397 U.S. at 364.). Nasir’s substantial rights were thus

definitely affected by his conviction upon proof of less than all

of the elements of the offense outlawed by § 922(g), and he has

carried his burden at Olano step three.

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.

59

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

60

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.39 Nasir was deprived of the right to have a jury

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, 812 F. App’x at 111; Velázquez-Aponte, 940 F.3d at 800.

Thus, it is not a foregone conclusion that every defendant

convicted before Rehaif under § 922(g) – even every such

defendant who entered into an Old Chief stipulation – will

succeed on plain error review. Old Chief stipulations do not

now prevent, nor have they ever prevented, the government

from introducing knowledge-of-status evidence. To the

contrary, the government has already begun including

61

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 guarantee 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,

108 F.3d at 509 (quoting Olano, 507 U.S. at 732).

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, 520 U.S. at 468

(plainness of a trial error must be judged “at the time of

appellate consideration”). True enough, the rules of the game

changed here, when the decision in Rehaif came down after the

trial. That, however, does not change our constitutional norms.

Members of the public know that the government is supposed

to prove a defendant’s guilt at trial. Everybody acknowledges

that that was not done in this case, though it was nobody’s

“fault.” Were we to ignore that breach of due process and then

try to explain our choice by saying, “well, we all know he’s

knowledge-of-status affirmations within Old Chief

stipulations. Maez, 960 F.3d at 959. The variable, therefore,

never was the stipulation; it was the government’s lack of

awareness that it had to prove the knowledge-of-status

element.

62

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.40

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,

63

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.41 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 conviction 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 asking 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 prong [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.

41

See supra note 31.

64

the law has changed on appeal.42 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

42

See, e.g., United States v. Ford, 703 F.3d 708, 711-12

(4th Cir. 2013) (granting a new trial where “the evidence

presented at trial has been rendered insufficient only by a post-

trial change in law … [and] was therefore akin to a reversal for

trial error, [so] retrial did not run afoul of the Double Jeopardy

Clause.” (internal quotation marks and citations omitted));

United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1995)

(“Moreover, the government here cannot be held responsible

for ‘failing to muster’ evidence sufficient to satisfy a standard

which did not exist at the time of trial.” (citation omitted));

United States v. Weems, 49 F.3d 528, 531 (9th Cir. 1995)

(holding that “double jeopardy protections do not bar retrial”

when “[t]he government had no reason to introduce such

evidence because, at the time of trial, under the law of our

circuit, the government was not required to prove” that

element); see also Rehaif, 139 S. Ct. at 2201 (Alito, J.,

dissenting) (noting that, following the majority’s decision, “[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.”).

65

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, 704 F.3d 125,

138 (3d Cir. 2013) (citations omitted).

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.

66

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,

108–09 (3d Cir. 2011); United States v. Boggi, 74 F.3d 470,

474–75 (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

1

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. THE RULE OF LENITY’S VIRTUES

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, 18 U.S. (5 Wheat.) 76, 95 (1820). It first

arose to mitigate draconian sentences. As English statutes kept

expanding the death penalty and curtailing mercy, courts tem-

pered them by construing them narrowly. Livingston Hall,

Strict or Liberal Construction of Penal Statutes, 48 Harv. L.

Rev. 748, 749–51 (1935). The canon was well established by

the time of Blackstone. 1 William Blackstone, Commentaries

*88. And it took root in our law soon thereafter. Wiltberger, 18

U.S. (5 Wheat.) at 95.

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, 471 U.S. 419, 427 (1985); see

also Antonin Scalia & Bryan A. Garner, Reading Law: The In-

terpretation of Legal Texts 296 (2012). The touchstone is the

text: the “ordinary,” evidently intended meaning of “the words

of the statute.” Wiltberger, 18 U.S. (5 Wheat.) at 95.

2

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, 283 U.S. 25, 27 (1931) (Holmes, J.);

United States v. R.L.C., 503 U.S. 291, 309 (1992) (Scalia, J.,

concurring). It gives citizens fair warning of what conduct is

illegal, ensuring that ambiguous statutes do not reach beyond

their clear scope.

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, 18 U.S. (5 Wheat.) at 95. Together with the

Double Jeopardy and Cruel and Unusual Punishments Clauses,

3

lenity is a longstanding safeguard against excessive punish-

ment. John F. Stinneford, Dividing Crime, Multiplying Punish-

ments, 48 U.C. Davis L. Rev. 1955, 1982–2001 (2015).

II. LENITY, SENTENCING, AND KISOR

An 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, 508 U.S. at 44–46. But

no more. Now, before a court defers to an agency interpreta-

tion, first it “must exhaust all the ‘traditional tools’ of construc-

tion.” Kisor, 139 S. Ct. at 2415 (quoting Chevron USA Inc. v.

NRDC, 467 U.S. 837, 843 n.9 (1984)). “[O]nly when that legal

toolkit is empty and the interpretive question still has no single

right answer” may we give Auer deference to an agency’s read-

ing of its own rule. Id.; see Auer v. Robbins, 519 U.S. 452, 461

(1997).

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, 543 U.S. 220, 265 (2005) (Breyer, J.,

remedial majority opinion); Peugh v. United States, 569 U.S.

530, 543–44 (2013); U.S. Sentencing Comm’n, 2019 Annual

Report and Sourcebook of Federal Sentencing Statistics 8 (re-

porting that last year, 75% of offenders received sentences that

were either within the Guidelines range or justified by a Guide-

lines ground for departure). So courts must still attend to the

rule and its animating principles.

4

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 helps ensure that “criminal punish-

ment . . . represents the moral condemnation of the commu-

nity.” United States v. Bass, 404 U.S. 336, 348 (1971).

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.

5

*****

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.

6

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

1

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.1

1

This distinction—whether precedent already answers

the question—accounts for the outcome in United States v.

2

I. THE SIXTH AMENDMENT

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, 139 S. Ct. 2369, 2373

(2019). Ever distrustful of authority, the first generation of

Americans skeptically—and belatedly—agreed to sturdier

national power as long as certain stipulations bound their new

government. Among them, the guarantee that criminal guilt is

determined only by an “impartial jury.” U.S. Const. amend. VI.

Hardly an American innovation, this “ancient rule,” Haymond,

139 S. Ct. at 2376, between free persons and their governments

has “extend[ed] down centuries,” Apprendi v. New Jersey, 530

U.S. 466, 477 (2000).2 Indeed, “[a]s Blackstone explained, no

Jabateh, where the panel held that prior decisions precluded

application of the plain error rule. See 974 F.3d 281, 298–300

(3d Cir. 2020).

2

For examples of this history, begin with the outrages

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

1606–1775, 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

3

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 American 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 Property”). It would become a cornerstone of a “new

Government,” one of the foundational principles “most likely

to effect . . . Safety and Happiness.” The Declaration of

4

Independence ¶ 1, 19 (1776) (“For depriving us in many cases,

of the benefits of Trial by 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 losing 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

recognize 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

5

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 the 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, 391 U.S. 145, 156 (1968). It is a belief

that Blackstone called “the grand bulwark of . . . libert[y].” 4

W. Blackstone, Commentaries *349.

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.

6

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 “jury must reach a unanimous verdict in order

to convict.” See Ramos, 140 S. Ct. at 1395. And for a jury to

be unanimous, the Fifth Amendment requires a unanimous

finding of guilt on “all elements” of the charged offense.

Sullivan, 508 U.S. at 277–78. “Together, these pillars of the

Bill of Rights,” Haymond, 139 S. Ct. at 2376, ensure that “[t]he

Constitution gives a criminal defendant the right to have a jury

determine, beyond a reasonable doubt, his guilt of every

element of the crime with which he is charged.” United States

v. Gaudin, 515 U.S. 506, 522–23 (1995) (emphasis added). It

is, in short, a bedrock precept that remains unmoved by the

perpetual current that otherwise defines our Republic.

B. Judicial Interpretations of the Jury Trial Right

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 democracy.” Neder v. United States, 527 U.S. 1, 30

(1999) (Scalia, J., concurring in part and dissenting in part).

Indeed, “together with the right to vote, those who wrote our

Constitution considered the right to trial by jury ‘the heart and

lungs’ . . . of our liberties, without which ‘the body must die.’”

Haymond, 139 S. Ct. at 2375 (quoting Letter from Clarendon

to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R.

Taylor ed. 1977)). Complex surgery on one part of the body,

however, can throw another part out of alignment. Similar

consequences often follow judicial interpretations of our

constitutional guarantees. For instance, consider a defendant

7

on trial for murder. The jury finds him not guilty. But the

prosecution remains convinced the jury got it wrong. It brought

forth a mountain of evidence that proved guilt beyond a

reasonable doubt and wants to appeal. Unlike a group of

laypersons, a panel of jurists, far more learned and wiser, will

unquestionably find for the prosecution. Can the government

appeal? Of course not, any first-year law student will answer,

because of the Double Jeopardy Clause of the Fifth

Amendment.

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, 140 S. Ct. at 1395.

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

8

[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 fundamentally 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.3

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

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.

9

us to veer away from settled precedent” to grant “[r]eversal

without any consideration of the effect of the error upon the

verdict[.]”). 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. THE DOCTRINE OF PLAIN ERROR REVIEW

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, 139 S. Ct. 2191, 2200 (2019)). But Nasir’s indictment

did not allege,4 and the Government did not prove, that Nasir

knew about his prohibited status.5 Those errors are

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

10

unsurprising since, before Rehaif, “every single Court of

Appeals” relied on the same “long-established interpretation”

attributed to 18 U.S.C.§ 922(g) “in thousands of cases for more

than 30 years.” Rehaif, 139 S. Ct. at 2201 (Alito, J., dissenting).

But it was still erroneous and, since Rehaif arrived while

Nasir’s direct appeal remained pending, “we apply [Rehaif]

retroactively.” Johnson v. United States, 520 U.S. 461, 467

(1997). That, one might assume, is the end of the story. Since

the jury did not decide a necessary element of § 922(g), Nasir

could not have received the guarantees of the Fifth and Sixth

Amendments as originally understood. See Sullivan, 508 U.S.

at 277–78. Not so, owing to the ever-expanding discretion

afforded courts under the plain error doctrine. See, e.g., United

States v. Maez, 960 F.3d 949, 956 (7th Cir. 2020) (explaining

that under Johnson, courts are to apply plain-error review to

changes in constitutional law after conviction).6

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.)

6

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)).

11

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 century, 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.” 78 U.S. (11 Wall.) x

(1871) (adopting Sup. Ct. R. 21 (amended 81 U.S. (14 Wall.)

xi, xii (1872), repealed 1939)). In 1874, the Court cabined that

discretion and coined the now familiar “plain error” doctrine.

See Sup. Ct. R. 21 § 8, 16 (1874) (“Without such an assignment

of errors, counsel will not be heard, except at the request of the

court, and errors not assigned according to this rule will be

disregarded, though the court, at its option, may notice a plain

error not assigned.”); see O’Neil v. Vermont, 144 U.S. 323, 365

(1892) (Field, J., dissenting) (explaining “[t]he right of the

court to consider [an] alleged error of its own motion is within

its authority under the [plain error] rule”). As Justice Field

explained, the plain error rule focused on mistakes “affecting

the liberty of the citizen.” Id. at 360.

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 us 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

12

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 “not 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. Vanhorne’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, 297 U.S. 157 (1936). Departing from

its prior focus on “vital” errors impacting foundational rights,

Atkinson turned to concerns about the integrity of judicial

proceedings. This new theory of plain error produced an

oft-cited principle: “In exceptional circumstances, especially in

criminal cases, appellate courts, in the public interest, may, of

their own motion, notice errors to which no exception has been

13

taken, if the errors are obvious, or if they otherwise seriously

affect the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 160.

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., 263 F. 545, 546 (2d

Cir. 1920) (“[A]ppellate courts may consider plain errors, not

excepted to nor assigned, though this is rarely done except in

criminal cases” that impact “substantial rights.”) (citing

Oppenheim v. United States, 241 F. 625, 628 (2d Cir. 1917)

(citing Wiborg and Crawford)); McCormick v. United States, 9

F.2d 237, 240 (8th Cir. 1925) (“The substantial rights of

defendants in criminal cases have always been amply

protected. . . . [W]here plain error has been committed in a

matter vital to defendants, . . . it is considered.”) (citing

Wiborg). Against that backdrop, there is little reason to

conclude that Rule 52(b) disregarded the traditional meaning

of the plain error rule. See Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of Legal Texts 318 (2012)

(explaining the canon of interpretation that “statutes will not

be interpreted as changing the common law unless they effect

14

the change with clarity”). And while “not authoritative,” Black

v. United States, 561 U.S. 465, 475 (2010) (Scalia, J.,

concurring in part and concurring in the judgment), the

commentary provided by the Advisory Committee confirms

that is the best reading of the rule. See Fed. R. Crim. P. 52

advisory committee’s note to subsection (b) (“Th[e] [plain

error] rule is a restatement of existing law[.]”) (citing Wiborg,

163 U.S. at 658); see also Krupski, 560 U.S. at 557 (Scalia, J.,

concurring in part and concurring in the judgment) (“The

Advisory Committee’s insights into the proper interpretation

of a Rule’s text are useful to the same extent as any scholarly

commentary.”).

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, 507 U.S. 725, 736

(1993). Olano provides a four-pronged inquiry that remains

our standard today. Courts may provide remedies under Rule

52(b) only if (1) there is an “error[,]” (2) the error is “plain[,]”

and (3) the plain error “affect[s] substantial rights.” Id. at 732–

34; see also Johnson, 520 U.S. at 466–67 (1997). Satisfying all

three prongs creates discretion to (4) “correct a plain forfeited

error affecting substantial rights if the error ‘seriously affect[s]

the fairness, integrity or public reputation of judicial

proceedings.’” Olano, 507 U.S. at 736 (citing Atkinson, 297

U.S. at 160). So now, “a plain error affecting substantial rights

does not, without more, satisfy the Atkinson standard, for

otherwise the discretion afforded by Rule 52(b) would be

illusory.” Id. at 736–37.

15

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, 507 U.S. at 736). These cases

make clear that any “per se approach to plain-error review is

flawed,” United States v. Young, 470 U.S. 1, 16 n.14 (1985),

because “[t]he fourth prong is meant to be applied on a

case-specific and fact-intensive basis.” Puckett v. United

States, 556 U.S. 129, 142 (2009). That, of course, is nothing

new, as the original application of plain error always assumed

searching scrutiny. See Weems, 217 U.S. at 362; Crawford, 212

U.S. at 194; Clyatt, 197 U.S. at 221–22; Wiborg, 163 U.S. at

658. But the Court expressly tied that probing inquiry to

violations of natural, substantial rights “of such high character

as to find expression and sanction in the Constitution or Bill of

Rights.” Weems, 217 U.S. at 362.

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

16

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. CONTRACTING PLAIN ERROR REVIEW IS

INCONSISTENT WITH HISTORY AND TRADITION

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, 520 U.S. at 469–70; see also

United States v. Cotton, 535 U.S. 625, 632–33 (2002) (“As in

Johnson, we need not resolve whether respondents satisfy this

element of the plain-error inquiry, because even assuming

respondents’ substantial rights were affected, the error did not

seriously affect the fairness, integrity, or public reputation of

judicial proceedings.”) (citation omitted); Neder, 527 U.S. at 9

(“[A]n instruction that omits an element of the offense does not

necessarily render a criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.”). Now,

even under harmless-error review, an appellate court is free to

step into the role of the jury and peruse the record for facts

supporting the missing element of a crime. Id. at 17. At least,

the court may step in for now, so long as those facts are

“overwhelming,” “uncontroverted,” and “[o]n [the] record.”

Johnson, 520 U.S. at 470 (internal quotation marks omitted);

see also Neder, 520 U.S. at 16–17 (upholding conviction

relying on “overwhelming record evidence”); Cotton, 535 U.S.

17

at 633 (finding no plain error where record evidence was

“overwhelming” and “essentially uncontroverted”). So while

“we do not know . . . how many elements can be taken away

from the jury with impunity, so long as appellate judges are

persuaded that the defendant is surely guilty,” we know we

would be free to affirm Nasir’s conviction looking solely to

evidence in the record. Neder, 527 U.S. at 33 (Scalia, J.,

concurring in part and dissenting in part).

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,

508 U.S. at 280. I am doubtful that the Sixth Amendment was

first understood to provide courts the power “to hypothesize a

guilty verdict that was never in fact rendered.” Id. at 279. Some

might find it tempting to glance outside the record for proof,

perhaps even compelling proof, that Nasir knew he was a felon.

But that is just the sort of temptation that informed a “healthy

suspicion” of government power and drove the demand for

written confirmation of our most sacred rights. Neder, 527 U.S.

at 32 (Scalia, J., concurring in part and dissenting in part); see

also 3 J. Story, Commentaries on the Constitution of the United

States § 1774, at 653 (1833) (“[Protection] against a spirit of

oppression and tyranny on the part of rulers, and against a spirit

of violence and vindictiveness on the part of the people”

demands “the severe control of courts of justice, and by the

firm and impartial verdict of a jury sworn to do right and

guided solely by legal evidence and a sense of duty. In such a

course there is a double security against the prejudices of

18

judges, who may partake of the wishes and opinions of the

government, and against the passions of the multitude, who

may demand their victim with a clamorous precipitancy.”); cf.

Duncan, 391 U.S. at 160 (“So-called petty offenses were tried

without juries both in England and in the Colonies and have

always been held to be exempt from the otherwise

comprehensive language of the Sixth Amendment’s jury trial

provisions. There is no substantial evidence that the Framers

intended to depart from this established common-law

practice.”).

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

reputation of judicial proceedings.” Olano, 507 U.S. at 736.

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,

19

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, 941 F.3d 1018, 1021 (11th Cir. 2019) (quoting United

States v. Vonn, 535 U.S. 55, 59 (2002)).

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 gr

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