# United States v. Malik Nasir

> Court of Appeals for the Third Circuit · December 1, 2020 · 982 F.3d 144

URL: https://www.frixlaw.com/law-library/cases/4638660

## Case

- **Court:** Court of Appeals for the Third Circuit
- **Decided:** December 1, 2020
- **Citations:** 982 F.3d 144
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by Greer v. United States, 593 U.S. 503 (2021).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4638660

## How later opinions describe it (automated extraction)

- noting that the substantial-rights portion of plain error review “is essentially harmless-error analysis, and as the majority itself acknowledges, all agree that it is based on the trial record”
- concluding that “inchoate crimes are not included in the definition of ‘controlled substance offenses’”
- holding that inchoate offenses are not included in the definition of “controlled substance offenses”
- noting that the similar definition of crime of violence under the United States Sentencing Guidelines § 4B1.2(a) does explicitly include inchoate crimes

## Opinion text

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 a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4638660. Public record. Not legal advice.