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
2

Before: SMITH, Chief Judge, McKEE, AMBRO, 

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., 

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, 

MATEY, PHIPPS, SCIRICA,* and RENDELL,* Circuit 

Judges.

(Filed: December 1, 2020)

_______________

Leigh M. Skipper

Brett G. Sweitzer

Keith M. Donoghue [ARGUED]

Federal Community Defender Office

 For the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center – Suite 540 West

Philadelphia, PA 19106

 Counsel for Appellant

Ilya Shapiro

Cato Institute

1000 Massachusetts Avenue, NW

Washington, DC 20001

 Counsel for Amicus Cato Institute

*

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.
3

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, 
4

_______________

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.
5

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.
6

While awaiting the warrant, several police officers 

remained at the storage unit, and one surveilled Nasir’s home. 

The officer at the home saw Nasir place a large black bag in 

the back of a Mercury Mariner SUV and drive in the direction 

of the storage facility. Nasir in fact went to the facility, and, 

when he arrived, the officers stopped him as he entered the row 

of units including numbers C69 and C43. After handcuffing

him and putting him in the back of a patrol car, they searched 

his SUV, where they found a black duffle bag and a key to unit 

C69. 

That same night, a search warrant issued and was 

executed. In unit C69, the police found more than three 

kilograms of marijuana, as well as scales and packaging 

materials. The next day, they applied for and received a search 

warrant for Nasir’s home and any vehicles on the property. 

While executing the warrant, the officers found $5,000 in cash 

in a grocery bag in the house and several handguns with 

ammunition in a Dodge Charger parked on the property. 

Nasir was indicted for violating 21 U.S.C. § 856(a)(1), 

part of what is commonly known as the crack house statute 

(Count One), and was also charged under 

21 U.S.C. §§ 841(a)(1) and (b)(1)(D) for possession of 

marijuana with intent to distribute (Count Two), and under 18 

U.S.C. §§ 922(g)(1) and 924(a)(2) as a felon in possession of a 

firearm (Count Three). He moved to suppress the evidence 

obtained from the searches of the storage unit, his house, and 

his vehicles. The District Court held hearings on that motion

and denied it. 

At trial, and of particular relevance now, Nasir entered 

a stipulation with the government as to the charge that he 
7

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

States, 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. 
8

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.
9

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.
10

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.
11

his lights, since he was storing illegal drugs, he should be safe 

from conviction under (a)(1). But even if we were inclined to 

accept that subsection (a)(1) does not cover storage, that does 

not help Nasir. No sensible reading of the statute allows one 

to distribute drugs just because one is also storing them. 

Within unit C69, besides the drugs themselves, there was drug 

distribution paraphernalia, namely scales and packaging 

materials such as food storage bags. In addition to that 

evidence, there was the testimony of the facility owner about 

Nasir’s frequent and suspicious trips to the unit. 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).
12

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. 
13

correctly approached the issue as being a search incident to 

arrest. Even when, like Nasir, an arrestee is detained and not 

within reach of his vehicle, the police may conduct “a search 

incident to a lawful arrest when it is reasonable to believe 

evidence relevant to the crime of arrest might be found in the 

vehicle.” Gant, 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 
14

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.
15

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 “secondguessing 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 
16

for them, you know, and I feel that for the most 

part they all do a good job, and they try to be fair. 

I think I might tend to believe what they say. I 

don’t know.

THE COURT: Do you think if I instruct you that 

you have to be fair and impartial and assess 

everybody’s credibility as best as you can that 

you would be able to do that?

A JUROR: I would think I would. I would hope 

I would.

(App. at 305.) Then, outside the juror’s presence the 

Court and counsel had this further conversation:

[NASIR’S ATTORNEY]: Your Honor, I move 

to strike on the basis that she -- her daughter is 

dating a state police officer and she would tend 

to believe the officer and police testimony.

THE COURT: What is the government’s 

position?

[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 
17

I think she would follow the instructions. So I’m 

denying the motion to strike.

(App. at 306-07). Nasir argues that the statements “I would

think I would” and “I would hope I would” are not sufficiently

strong affirmations of impartiality. 

Because the juror admitted to her concern about

partiality, the District Court quite rightly asked follow-up

questions to determine whether she was actually biased. Cf.

United States v. Mitchell, 690 F.3d 137, 142 (3d Cir. 2012)

(holding that actual bias is “the existence of a state of mind that

leads to an inference that the person will not act with entire

impartiality[,]” unlike implied bias, which is “presumed as [a]

matter of law” (citations and internal quotation marks

omitted)). Here, Juror 27’s acknowledgement that she “ha[s]

a lot of 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 
18

received the enhancement because one of his two prior 

qualifying convictions was an inchoate drug offense, which

does not qualify as a predicate offense under the plain language 

of the guidelines. The interpretation of the guidelines is a legal 

question, so we exercise plenary review. United States v. 

Wilson, 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 
19

to distribute.

9

 Nasir was accordingly sentenced as a career 

offender. 

He argues that his conviction in 2000 for attempting to 

possess with intent to distribute cocaine should not qualify as 

a “controlled substance offense” under section 4B1.1 because 

the 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.
20

U.S.S.G. § 4B1.2(b). Nasir notes this definition plainly does 

not mention inchoate crimes, and consequently asserts that his 

inchoate “attempt” crime should not qualify as a predicate 

offense for the career offender enhancement. The analytical 

problem is more complicated than that, however, because the 

commentary to section 4B1.2 appears to expand the definition 

of “‘controlled substance offense’ [to] include the offenses of 

aiding and abetting, conspiring, and attempting to commit such 

offenses.” U.S.S.G. § 4B1.2 cmt. n.1. That section of the 

commentary, and, importantly, our precedent on the 

application of the commentary to the interpretation of the 

guidelines, informed the District Court’s decision to apply the 

career offender enhancement. The question, then, is whether

the more expansive commentary should be given controlling 

weight in interpreting the narrower guideline at issue here.

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-andpublications/annual-reports-and-sourcebooks/2018/2018-

Annual-Report.pdf.
21

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, socalled 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. 
22

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.
23

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 
24

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 
25

violence” in the previous subsection. That definition in section 

4B1.2(a) does explicitly include inchoate crimes, see U.S.S.G. 

§ 4B1.2(a) (“The term ‘crime of violence’ means any offense 

... that – (1) has as an element the use, attempted use, or 

threatened use of physical force against the person of 

another[.]” (emphasis added)), which further suggests that the 

omission of inchoate crimes from the very next subsection was 

intentional. 

That suggestion is separately bolstered by the fact that

section 4B1.2(b) affirmatively lists many other offenses that do 

qualify as controlled substance offenses. As a familiar canon 

of construction states, expressio unius est exclusio alterius: the 

expression of one thing is the exclusion of the other. Applying 

that canon has led at least one court of appeals to conclude that 

section 4B1.2(b) does not include inchoate crimes. See United 

States v. Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 2018) 

(“Section 4B1.2(b) presents a very detailed ‘definition’ of 

controlled substance offense that clearly excludes inchoate 

offenses.”). 

There is an important additional policy advantage to the

plain-text approach: it protects the separation of powers. If we 

accept that the commentary can do more than interpret the 

guidelines, that it can add to their scope, we allow

circumvention of the checks Congress put on the Sentencing 

Commission, a body that exercises considerable authority in 

setting rules that can deprive citizens of their liberty. Unlike 

the 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 
26

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 
27

firearm. After Nasir filed his opening brief, the Supreme Court 

decided Rehaif v. United States, holding that, “in a prosecution 

under ... § 922(g) ..., the Government must prove both that the 

defendant knew he possessed a firearm and that he knew he 

belonged to the relevant category of persons barred from 

possessing a firearm.” 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 oftinvoked 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, 
28

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-ofstatus 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 

2-4.) In particular, the Dissent says that we “seem[] to suggest 

a presumption in favor of error-correction.” (Dissent at 4.) 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. 
29

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 3.) 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 

4.) Regardless of whether the knowledge-of-status element 
30

he knew he was a felon, and the District Court did not instruct 

the jury that such proof was necessary. Since Rehaif, the 

government has claimed that the evidence admitted at the trial

in this case was adequate to prove that, when Nasir was found 

with guns in his possession, he knew he was a felon and hence 

a person prohibited from possessing a firearm. But, perhaps 

recognizing how unconvincing that characterization of the 

evidence is, the government has spent the majority of its efforts

in this appeal on a more plausible but still ultimately 

unsuccessful argument: that, even if the record is devoid of 

proof on the knowledge-of-status element, we should not 

recognize and correct the error on plain-error review because 

Nasir surely did know that he was a felon. 

That brings us to the difficult and dividing issue in this 

case, one that has elicited a variety of responses from other 

courts of appeals dealing with the aftermath of Rehaif. The 

was widely recognized before Rehaif, the government’s burden 

of proving that element, and every other element of the 

§ 922(g) charge, was the same. Nothing that Nasir did or didn’t 

do at trial affected that. Failure to object at trial begets plainerror 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. 
31

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 plainerror 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 
32

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 7), that is precisely the 

effect of their position. If no facts were given to the jury from 
33

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

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.
34

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 8.) 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.
35

461 (1997). The defendant in that case was convicted of 

perjury, but, before her direct appeal to the Eleventh Circuit 

was concluded, the Supreme Court handed down an opinion 

holding that the materiality of a false statement had to be 

decided by a jury rather than the trial judge. Id. at 463-64. The 

defendant had not objected at trial to the judge being the one 

who made the decision on materiality, because no one at the 

time knew there was such an objection to be made. Id. at 464. 

The Eleventh Circuit decided that the error inherent in the 

judge rather than the jury making the materiality decision did 

not affect the defendant’s substantial rights. Id. In other 

words, it decided the case at Olano step three. It made that 

decision, though, not in spite of a government failure to carry 

the constitutionally mandated burden of proof but precisely 

because the government had carried its burden so fully. As 

described by the Supreme Court, the Eleventh Circuit 

conducted an “independent review of the record and 

determin[ed] that ... ‘overwhelming’ evidence of materiality” 

had been provided to the jury, so “[n]o reasonable juror” could 

have decided the materiality question in any way other than as 

the trial judge did. Id. at 465 (second alteration in original). 

The Supreme Court agreed with the outcome but took a 

different analytical path. It did not address the plain-error 

analysis in Johnson at Olano step three, as the court of appeals 

had. Instead, it went directly to step four, and, accepting that

the evidence on materiality in the trial record was so 

“overwhelming” that a rational jury could not reach any 

conclusion but guilt, the Court decided that the fairness, 

integrity, and reputation of the judicial process could not be 

called into question by the conviction. Id. at 469-70. The 

argument for reversal on plain error failed, in other words, 

based on the trial record. Johnson thus highlights the 
36

importance of the government carrying its constitutional 

burden at trial.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 6.) 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 
37

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 plainerror 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 
38

knowledge-of-status element in a 922(g) prosecution is plain 

error have decided that it is not. They have reached that result

based on their preliminary conclusion that they are permitted 

to look outside the trial record to find evidence to plug the gap 

left by the prosecution at trial. The justifications offered for 

that view are not all of a piece. See United States v. 

Huntsberry, 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).
39

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).
40

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 
41

the essential elements of guilt.” Winship, 397 U.S. at 361 

(citation omitted). In that procedural setting, due process and 

Sixth Amendment considerations compel us to focus our 

inquiry on the information presented to the trier of fact – in this 

case, the jury. Vonn is inapposite where, as here, we are 

concerned not with the facts possessed by the defendant and 

their effect on the voluntariness of his plea but with the 

information presented to the fact-finder to prove an element of 

the charged offense. Put differently, when there has been a 

plea rather than a trial, no one is concerned about or mentions 

the adequacy of the trial record because there is none. 

Likewise, however, when there has been a trial and an utter 

status from his prior guilty plea.” (Dissent at 9 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 9 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.
42

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 14-15.) 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 
43

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, 
44

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. 
45

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 
46

Court has never suggested that we are categorically barred 

from taking into account evidence not introduced at trial in 

considering whether an instructional error satisfies the fourth 

prong of plain-error review.” Lara, 2020 WL 4668535, at * 

13. Although the Court acknowledged the due process 

concerns in “revis[ing] the basis on which a defendant is 

convicted simply because the same result would likely obtain 

on retrial,” id. at *14 (citation omitted), it nonetheless 

characterized a reversal in this context as “wasteful” and 

declined to exercise its discretion to notice the error on the 

fourth prong of plain-error review, id. at *13-14.

Similarly, the Ninth Circuit has decided that 

examination of evidence outside the trial record is permissible 

to avoid “wasteful reversals.” United States v. Johnson, No. 

17-10252, 2020 WL 6268027, at *4 (9th Cir. Oct. 26, 2020)

(quoting United States v. Dominguez Benitez, 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. 
47

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. 
48

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 19.) 

“[I]n the face of overwhelming, reliable information 

supporting Nasir’s conviction” (Dissent at 19), our persistence 

is explained as “a reflexive inclination ... to reverse because of 

unpreserved error[.]” (Dissent at 19 (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).
49

concern for punishing crime without heeding the mode by 

which it is accomplished.” Bollenbach v. United States, 326 

U.S. 607, 614-15 (1946). The Constitution puts procedural 

safeguards in place to protect against just such an approach. 

Given the imperative of due process, and “[i]n view of the 

place of importance that trial by jury has in our Bill of Rights,”

it should not be supposed that “the belief of appellate judges in 

the guilt of an accused, however justifiably engendered by the 

dead record, [can be substituted] for ascertainment of guilt by 

a jury under appropriate judicial guidance, however 

cumbersome that process may be.” Id. at 615. 

In sum, we disagree with both variants of the rationales 

that other courts of appeals have adopted to justify unmooring 

themselves from the trial record when conducting plain-error 

review.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 13.) 

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 
50

rights at issue, our analysis of Nasir’s claim of plain error will 

be confined to the trial record and the evidence the government 

actually presented to the jury. 

3. Applying Plain-Error Review

Turning to the trial record, and with the first two steps 

of the plain-error test from Olano not in dispute, the only 

questions left for our consideration are whether the admitted 

plain error of a conviction on proof of less than all of the 

elements of the 922(g) charge affected Nasir’s substantial 

rights (Olano step three) and whether we should exercise our 

discretion to notice the error (Olano step four). On this record, 

the answer to both questions is yes.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 
51

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 11.) 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 11.) 

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 
52

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

Benitez, 542 U.S. 74, 76 (2004)). As to his sufficiency-of-theevidence 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[.]”). 
53

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 
54

be admissible for any purpose beyond proving status,” so that 

“if, indeed, there were a justification for receiving evidence of 

[the conviction] on some issue other than status (i.e., to prove 

. . . ‘knowledge, . . .’), [then Federal Rule of Evidence] 404(b) 

[would] guarantee[] the opportunity to seek its admission.” 

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

Nor did Old Chief preclude adding a simple knowledgeof-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. 
55

that line of reasoning.33 The Supreme Court said there that it 

did not believe “Congress would have expected defendants 

under § 922(g) ... to know their own status[ ].” Rehaif, 139 S. 

Ct. at 2197. If one were to conclude otherwise, the Court said, 

“these provisions might apply to a person who was convicted 

of a prior crime but sentenced only to probation, who does not 

know that the crime is ‘punishable by imprisonment for a term 

exceeding one year.’” Id. at 2198 (quoting 18 U.S.C. 

§ 922(g)(1)). 

In the natural course, a defendant agrees to an Old Chief

stipulation after having committed the crime of unlawfully 

possessing a firearm. Nasir’s stipulation, for example, postdates 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 
56

of the sort submitted in this case will not, on its own, suffice to 

prove that, at the relevant time, the defendant had knowledge 

of his status as a person prohibited to possess a firearm.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 15-16 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). 
57

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. 
58

obviously not an option. Rehaif declares knowledge of status

to be an element of a § 922(g) offense, and that cannot be 

ignored.

The Fourth Circuit has recently come to the same 

conclusion. In United States v. Medley, 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.
59

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 RosalesMireles that an error need not “shock the conscience” or 

amount to a “powerful indictment of the system” to be “worthy 

of correction” at step four of a plain-error analysis. 138 S. Ct. 
60

at 1906-07 (internal quotation marks omitted). Again, the 

Court said that “Olano rejected a narrower rule that would have 

called for relief only” in cases “where a defendant is actually 

innocent.” Id. at 1906. It recognized instead “a broader 

category of errors that warrant correction on plain-error 

review.” Id. Innocence or guilt, insofar as we may think we 

apprehend them based on the trial record, may have relevance, 

but our analysis at the fourth step “focus[es] ... on principles 

of fairness, integrity, and public reputation[.]” Id.

That means that sometimes the errors to be corrected are

“inadvertent or unintentional errors of the court or the parties 

below.” Id. In Rosales-Mireles, the error was the District 

Court’s miscalculation of the guidelines range at sentencing. 

Id. at 1905. Such errors had already been recognized as being 

likely to affect a defendant’s substantial rights, when 

considered under the third step of plain-error review. See

Molina-Martinez, 136 S. Ct. at 1345 (“When a defendant is 

sentenced under an incorrect [g]uidelines range—whether or 

not the defendant’s ultimate sentence falls within the correct 

range—the error itself can, and most often will, be sufficient to 

show a reasonable probability of a different outcome absent the 

error.”). The Supreme Court extended that reasoning to Olano

step four, saying that “‘[t]o a prisoner,’ th[e] prospect of 

additional ‘time behind bars is not some theoretical or 

mathematical concept’ ... [and] thus warrants serious 

consideration in a determination whether to exercise discretion 

under Rule 52(b).” Rosales-Mireles, 138 S.C.t at 1907 

(quoting Barber v. Thomas, 560 U.S. 474, 504 (2010) 

(Kennedy, J., dissenting)). The Court observed that “[i]t is

crucial in maintaining public perception of fairness and 

integrity in the justice system that courts exhibit regard for 
61

fundamental rights and respect for prisoners as people.” Id. at 

1907 (internal quotation marks omitted).

If a guidelines miscalculation warrants recognition of 

plain error, surely a plain error of constitutional dimension 

going to the conviction itself deserves to be recognized and 

corrected.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 8 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 9 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 
62

consider whether the government had proven him guilty 

beyond a reasonable doubt on every element of the § 922(g) 

charge. As forcefully described in the concurrence on this 

point, upholding that outcome would amount to an appellate 

court, in the jury’s stead, “mak[ing] a factual determination on 

an unproven element of an offense by considering documents 

outside the evidentiary record,” in derogation of the Sixth 

Amendment. (J. Matey Concurrence at 2.) Whether viewed as 

a matter of the Fifth Amendment’s 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. 
63

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 5.) 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, 
64

That is a message likely to call into question the fairness, 

integrity, and reputation of the justice system. We will 

therefore exercise our discretion to recognize the plain error in 

Nasir’s § 922(g) conviction.

4. The Remedy for the Plain Error

We view this case as a misapprehension about the law 

– one shared by everyone in the courtroom, and perhaps across 

the nation, until Rehaif. That misapprehension led to the 

government’s failure to present sufficient evidence to sustain 

the conviction.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.
65

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 posttrial 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.”).
66

to, and hence did not, present evidence to the jury to prove that 

the defendant knew he was a felon when he possessed a 

firearm. Likewise, the burden on the busy District Court is 

regrettable, since it too was operating on the then-widely 

shared understanding of the elements of a § 922(g) offense. 

Nevertheless, “[t]he prosecution’s failure to prove an essential 

element of the charged offense [is] plain error [and]... a 

miscarriage of justice.” United States v. Castro, 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.
1

BIBAS, Circuit Judge, concurring in part.

Judges interpret the law. That applies to the U.S. Sentencing Guidelines too. If the Sentencing Commission’s commentary sweeps more broadly than the plain language of the guideline 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’ careeroffender 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 enhancement, 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 followed the Supreme Court’s guidance in Stinson. That meant 

we gave nearly dispositive weight to the Sentencing Commission’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 interpretations 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. Anything 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 
2

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 tempered 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 Interpretation 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. 
3

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 Marshall explained, the rule of lenity stems from “the plain principle 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 distaste 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, 
4

lenity is a longstanding safeguard against excessive punishment. John F. Stinneford, Dividing Crime, Multiplying Punishments, 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 Commission and its commentary. Stinson, 508 U.S. at 44–46. But 

no more. Now, before a court defers to an agency interpretation, first it “must exhaust all the ‘traditional tools’ of construction.” 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 reading 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 advisory, 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 (reporting that last year, 75% of offenders received sentences that 

were either within the Guidelines range or justified by a Guidelines ground for departure). So courts must still attend to the 

rule and its animating principles.
5

Lenity’s third, key purpose applies here. True, one can debate the relevance of its first two purposes: whether the commentary gives enough notice and whether congressional approval of guidelines with their commentary respects the separation 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 ambiguous, the rule of lenity calls for adopting the more lenient of 

two plausible readings. It helps ensure that “criminal punishment ... represents the moral condemnation of the community.” United States v. Bass, 404 U.S. 336, 348 (1971).

There is no compelling reason to defer to a Guidelines comment that is harsher than the text. Whatever the virtues of giving 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 requires justice tethered to the past. The rule of lenity takes precedence 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 provisions 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.
6

* * * * *

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.
1

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 
2

the issue before us today, an issue that has in recent years 

appeared throughout the federal courts. And I believe it 

requires us to properly frame the question presented. On the 

one hand, we can view the issue as whether the fourth prong of 

Olano’s standard of review for plain error should allow an 

appellate court to “look outside the record” to find proof of 

guilt that would affirm an otherwise invalid conviction. On the 

other hand, we can ask whether the Sixth Amendment as 

originally understood includes an exception to the guarantee 

that an impartial jury determines a defendant’s guilt. An 

exception that allows appellate courts to independently find an 

element of an offense proven beyond a reasonable doubt, using 

proof never presented to the jury.

It is an important distinction because when confronted 

with a novel question of constitutional law, that is, one not 

directly controlled by precedent, we should ask if the original 

understanding of the Constitution tolerates a certain result. No 

court, it appears, has considered whether the Sixth 

Amendment, as originally understood, allows judges to make 

a factual determination on an unproven element of an offense 

by considering documents outside the evidentiary record.

Applying that test, I have sufficient doubt that the scope of 

judicial authority imagined by the Framers reaches past the 

horizon of the Sixth Amendment’s guarantee. And I do not 

read Olano, as best understood in light of the history of the 

plain error doctrine, to allow for a result contrary to the original 

understanding of the Sixth Amendment. For those reasons, as 

I explain below, I concur.1

1 This distinction—whether precedent already answers 

the question—accounts for the outcome in United States v. 
3

I. THE SIXTH AMENDMENT

A. The Original Understanding of the Right to a Jury 

Trial

“Only a jury, acting on proof beyond a reasonable 

doubt, may take a person’s liberty. That promise stands as one 

of the Constitution’s most vital protections against arbitrary 

government.” United States v. Haymond, 139 S. Ct. 2369, 2373 

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

Americans skeptically—and belatedly—agreed to sturdier 

national power as long as certain stipulations bound their new 

government. Among them, the guarantee that criminal guilt is 

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

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

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

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

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

Jabateh, where the panel held that prior decisions precluded 

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

(3d Cir. 2020).

2 For examples of this history, begin with the outrages 

that drove the Stamp Act Congress of 1765 to pronounce that 

“trial by jury is the inherent and invaluable right of every

British subject in these colonies.” Resolutions of the Stamp Act 

Congress § 7 (1765) reprinted in Select Charters and Other 

Documents Illustrative of American History 

1606–1775, 315 (William McDonald ed., 1906); see also “To 

Benjamin Franklin from Charles Thomson, Sept. 24, 1765,” 

Founders Online, National Archives, https://founders

.archives.gov/documents/Franklin/01-12-02-0149 (“It is not 
4

property only we contend for. Our Liberty and most essential 

privileges are struck at: Arbitrary courts are set over us, and 

trials by juries taken away.”); and see “To Benjamin Franklin 

from Thomas Wharton, June 24, 1765,” Founders Online, 

National Archives, https://founders.archives.gov/documents

/Franklin/01-12-02-0091 (objecting to a single judge deciding 

what was “heretofore only to be Assertained by a trial by Jury; 

and thereby depriving Us, of one of the most Essential 

priviledges of An Englishman.”). This “essential privilege” 

enjoyed by the colonists “by the immutable laws of nature” 

included entitlement “to the common law of England, and 

more especially to the great and inestimable privilege of being 

tried by their peers of the vicinage, according to the course of 

that law.” Declaration and Resolves of the First Continental 

Congress Resolution 5 (1774), available at https://avalon.law

.yale.edu/18thcentury/resolves.asp; see also Declaration and 

Resolves of the First Continental Congress (noting that Britain 

passed “several acts” which “deprive the American subject of 

trial by jury” and “deprive[] the American subject of a 

constitutional trial by jury of the vicinage”). As the evidence 

for independence mounted, the right to jury trial emerged as 

profound motivation for the colonies to join in revolt. “IV. The 

Declaration as Adopted by Congress, [6 July 1775],” Founders 

Online, National Archives, https://founders.archives.gov

/documents/Jefferson/01-01-02-0113-0005 (“Statutes have 

been passed . . . for depriving us of the accustomed and 

inestimable Privilege of Trial by Jury in Cases affecting both 

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

Government,” one of the foundational principles “most likely 

to effect . . . Safety and Happiness.” The Declaration of 
5

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

of the benefits of Trial by Jury”). 

With freedom won, the future of the right to trial by jury 

became a central cause for supporters and opponents of the 

Constitution. Writing as Phocion to persuade New York to 

ratify, Alexander Hamilton urged, “Let us not forget that the 

constitution declares that trial by jury in all cases in which it 

has been formerly used, should remain inviolate forever[].” 

Second Letter from Phocion, [Apr. 1784], Founders Online, 

National Archives, https://founders.archives.gov/documents

/Hamilton/01-03-02-0347. Fearing a loss of the jury stirred 

Anti-Federalist Patrick Henry to exclaim: “Why do we love 

this trial by jury? Because it prevents the hand of oppression 

cutting you off.” 3 Debates on the Adoption of the Federal 

Constitution 545 (Philadelphia, Jonathan Elliot ed., 1836) 

(1787) (statement of Patrick Henry)); see also Nathaniel 

Breading, Edmund Randolph, and Samuel Bryan, 

Observations on the Proposed Constitution for the United 

States of America 23, 1788 (“We abhor the idea of losing the 

transcendent privilege of trial by jury.”). Indeed, “[t]he friends 

and adversaries of the plan of the Convention, if they agree in 

nothing else, concur at least in the value they set upon the trial 

by jury; or if there is any difference between them it consists 

in this: the former regard it as a valuable safeguard to liberty;

the latter represent it as the very palladium of free 

government.” Alexander Hamilton, The Federalist No. 83. And 

so the Anti-Federalists campaigned vigorously to formally 

recognize the right to jury trial as “essential in every free 

country, that common people should have a part and share of 

influence, in the judicial as well as in the legislative 

department.” Letters From The Federal Farmer (IV), in 2 The 
6

person could be found guilty of a serious crime unless ‘the truth 

of every accusation . . . should . . . be confirmed by the 

unanimous suffrage of twelve of his equals and neighbors, 

indifferently chosen, and superior to all suspicion.’” Ramos v. 

Louisiana, 140 S. Ct. 1390, 1395 (2020) (citing 4 W. 

Blackstone, Commentaries on the Laws of England *343 

(1769)). And so the Constitution’s jury trial guarantee 

“reflect[s] a fundamental decision about the exercise of official 

power—a reluctance to entrust plenary powers over the life and 

liberty of the citizen to one judge or to a group of judges.”

Duncan v. Louisiana, 391 U.S. 145, 156 (1968). It is a belief 

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

W. Blackstone, Commentaries *349.

The Sixth Amendment provides, “as its most important 

element, the right to have the jury, rather than the judge, reach 

Complete Anti-Federalist 249 (Herbert J. Storing ed., 1981); 

see also Letters From The Federal Farmer (XV), in 2 The 

Complete Anti-Federalist 320 (Herbert J. Storing ed., 1981) 

(“Juries are constantly and frequently drawn from the body of 

the people, and freemen of the country; and by holding the 

jury’s right to return a general verdict in all cases sacred, we 

secure to the people at large, their just and rightful controul in

the judicial department.”). As summed up by Thomas 

Jefferson, “[a]nother apprehension is that a majority cannot be 

induced to adopt the trial by jury; and I consider that as the only 

anchor, ever yet imagined by man, by which a government can 

be held to the principles of its constitution.” “From Thomas 

Jefferson to Thomas Paine, 11 July 1789,” Founders Online, 

National Archives, https://founders.archives.gov/documents

/Jefferson/01-15-02-0259.
7

the requisite finding of ‘guilty.’” Sullivan v. Louisiana, 508 

U.S. 275, 277 (1993) (citing Sparf v. United States, 156 U.S. 

51, 105–06 (1895)). From this flows the “unmistakable” 

condition that a “jury must reach a unanimous verdict in order 

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

be unanimous, the Fifth Amendment requires a unanimous

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

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

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

Constitution gives a criminal defendant the right to have a jury 

determine, beyond a reasonable doubt, his guilt of every 

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

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

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

perpetual current that otherwise defines our Republic. 

B. Judicial Interpretations of the Jury Trial Right

As Justice Scalia so aptly analogized, “[w]hen this 

Court deals with the content of th[e] [right to jury] guarantee—

the only one to appear in both the body of the Constitution and 

the Bill of Rights—it is operating upon the spinal column of 

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

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

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

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

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

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

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

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

however, can throw another part out of alignment. Similar 

consequences often follow judicial interpretations of our 

constitutional guarantees. For instance, consider a defendant 
8

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

prosecution remains convinced the jury got it wrong. It brought 

forth a mountain of evidence that proved guilt beyond a 

reasonable doubt and wants to appeal. Unlike a group of 

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

unquestionably find for the prosecution. Can the government 

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

because of the Double Jeopardy Clause of the Fifth 

Amendment.

Now suppose the defendant is tried for first-degree 

murder. The defendant acknowledges he is the killer, but the 

jury finds that he did not act with malice aforethought, and 

returns a not guilty verdict. Wait, argues the government, all 

the elements for an uncharged lesser crime are found in the 

record. So the prosecution appeals and asks those same wise 

judges to simply find the defendant guilty of another crime. No 

again, answers the student. Or perhaps the jury just can’t decide 

one way or another. Nine say that he definitely did it; three say 

that there’s no way. Like a low inside curve, can a judge make 

the call that decides the matter? No, because the jury verdict 

must be unanimous, a point recently steadied by the Supreme 

Court. Ramos, 140 S. Ct. at 1395.

What about a defendant acquitted over an “erroneous 

addition of a statutory element”? Evans v. Michigan, 568 U.S. 

313, 316 (2013) (emphasis added). Can the government 

appeal? No, because “our cases have defined an acquittal to 

encompass any ruling that the prosecution’s proof is 

insufficient to establish criminal liability for an offense,” even 

if that purported insufficiency turns on an extraneous element 

of the offense. Id. at 318. Indeed, an acquittal must stand even 

if “predicated upon a clear misunderstanding of what facts the 
9

[prosecution] needed to prove under [governing] law,” without 

regard to “whether the court’s decision flowed from an 

incorrect antecedent ruling of law,” and even when “the 

product of an erroneous interpretation of governing legal 

principles.” Id. at 320 (internal quotation marks omitted).

Try another: suppose after the defendant is convicted it 

becomes clear that the prosecution charged and proved less 

than every essential element of the offense. No problem, says 

the government, most of the elements were proven. And a 

guilty verdict that “omits an element of the offense,” the 

Supreme Court has concluded, “does not necessarily render a

criminal trial fundamentally unfair.” Neder, 527 U.S. at 9. 

After all, it would be awfully burdensome to retry the case just 

to prove what everyone seemingly already knows. 

But this time, the government notes, there’s a catch: 

there is no evidence in the record that could prove the missing 

element. There is other reliable proof, however, outside the 

trial record that establishes the unproven portion of the crime.

3

Can a court consider this material—information everyone 

agrees the jury never saw—and then find the defendant guilty 

beyond a reasonable doubt? Well, the answer is complex. In 

the past, tests have weighed cardinal constitutional guarantees 

against judicial efficiency and the chance of success on retrial. 

See id. at 15 (“We do not think the Sixth Amendment requires 

3 Perhaps, for example, the evidence was suppressed. Or 

the parties stipulated to bar its introduction. Maybe the 

prosecution did not choose to offer the evidence. Maybe none 

of the parties, or the court, thought the evidence was relevant. 

Whatever the reason, the result is the same: the jury never saw 

it.
10

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

without any consideration of the effect of the error upon the 

verdict[.]”). More recently, the Supreme Court recoiled at even 

the suggestion of such a balancing test. See Ramos, 140 S. Ct. 

at 1402 (“When the American people chose to enshrine [the 

Sixth Amendment] in the Constitution, they weren’t 

suggesting fruitful topics for future cost-benefit analysis.”). All 

of which brings us to Malik Nasir.

II. THE DOCTRINE OF PLAIN ERROR REVIEW

There is no disagreement about the road leading to this 

case. In Rehaif v. United States, the Supreme Court held “that 

the Government must prove that a defendant charged with 

violating [18 U.S.C.] § 922(g) knew both that he possessed a 

firearm and that he belonged to the relevant class of persons 

barred from possessing a firearm.” In re Sampson, 954 F.3d 

159, 161 (3d Cir. 2019) (per curiam) (citing Rehaif v. United 

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

did not allege,

4

and the Government did not prove, that Nasir 

knew about his prohibited status.

5 Those errors are 

4 Count Three of the indictment charged that Nasir “did 

knowingly possess in and affecting interstate and foreign 

commerce, firearms . . . after having been convicted of a crime

punishable by imprisonment for a term exceeding one year, in 

the United States District Court for the Eastern District of 

Virginia, in violation of Title 18, United States Code, Sections 

922(g)(1) and 924(a)(2).” (App. at 40–41.)

5 The District Court instructed the jury that “in order to 

find the defendant guilty of [18 U.S.C. § 922(g)], you must find 

that the government proved each of the following three 
11

unsurprising since, before Rehaif, “every single Court of 

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

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

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

But it was still erroneous and, since Rehaif arrived while 

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

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

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

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

could not have received the guarantees of the Fifth and Sixth 

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

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

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

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

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

changes in constitutional law after conviction).6

elements beyond a reasonable doubt: First, that the defendant 

has been convicted of a felony, that is, a crime punishable by 

imprisonment for a term exceeding one year; Second, that after 

this conviction, the defendant knowingly possessed the firearm 

described in Count Three of the Indictment; and Third, that the 

defendant’s possession was in or affecting interstate or foreign 

commerce.” (App. at 615–16.)

6 But see Rehaif, 139 S. Ct. at 2201, 2213 (Alito, J., 

dissenting) (“A great many convictions will be subject to 

challenge, threatening the release or retrial of dangerous 

individuals whose cases fall outside the bounds of 

harmless-error review,” and “[t]hose for whom direct review 

has not ended will likely be entitled to a new trial.” (emphasis 

added)).
12

A. The Original Understanding of Plain Error Review

The current authority of a federal appellate court to 

notice unpreserved error grew from the early practices of the 

Supreme Court. By the late nineteenth century, the Court’s 

general rule confining review “to a discussion of the errors 

stated” still permitted the Court, “at its discretion, [to] notice 

any other errors appearing in the record.” 78 U.S. (11 Wall.) x 

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

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

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

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

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

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

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

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

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

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

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

explained, the plain error rule focused on mistakes “affecting

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

Using that authority, the Court applied the plain error 

rule to invalidate a constitutionally infirm conviction. Wiborg 

v. United States, 163 U.S. 632, 658 (1896). In Wiborg, the 

Court spoke of the judicial “liberty” to review questions “not 

properly raised” if “a plain error was committed in a matter so 

absolutely vital to defendants.” Id. The Court reaffirmed that 

perspective in Clyatt v. United States, holding that Wiborg

“justifies us in examining the question in case a plain error has 

been committed in a matter so vital to the defendant.” 197 U.S. 

207, 221–22 (1905). See also Crawford v. United States, 212 
13

U.S. 183, 194 (1909) (“[Courts] will, in the exercise of a sound 

discretion, sometimes notice error in the trial of a criminal case, 

although the question was not properly raised at the trial by 

objection and exception.”); Brasfield v. United States, 272 U.S.

448, 450 (1926) (“[F]ailure of petitioners’ counsel to 

particularize an exception to the court’s inquiry does not 

preclude this Court from correcting the error.”). And this focus 

on issues “vital” to the defendant flows directly from the 

guarantees of the Constitution. Those commitments make the 

plain error rule “not a rigid one,” and courts have had “less 

reluctance to act under it when rights are asserted which are of 

such high character as to find expression and sanction in the 

Constitution or Bill of Rights.” Weems v. United States, 217 

U.S. 349, 362 (1910). The plain error rule, as first applied by 

the Supreme Court, recognizes “[t]he right of trial by Jury is a 

fundamental law, made sacred by the Constitution,” and 

enjoyed by all persons before the Founding. Vanhorne’s Lessee 

v. Dorrance, 2 Dall. 304, 309 (Patterson, Circuit Justice, 

C.C.D.Pa.1795) (discussing the language of the 1790 

Constitution of the Commonwealth of Pennsylvania mirroring 

the Sixth Amendment). Jury trials are a firewall against a

process that would devalue natural rights, unsuitable for 

sacrifice on the altar of efficiency.

But though conceived as a reminder of the highest 

principles of ordered liberty, the plain error doctrine pivoted in 

United States v. Atkinson, 297 U.S. 157 (1936). Departing from 

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

Atkinson turned to concerns about the integrity of judicial 

proceedings. This new theory of plain error produced an 

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

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

their own motion, notice errors to which no exception has been 
14

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

affect the fairness, integrity, or public reputation of judicial 

proceedings.” Id. at 160.

B. The Text of Rule 52(b)

The turn did not take. Rule 52(b) codified the plain error 

doctrine in 1944, choosing fundamental rights over structural 

anxieties by shedding the baggage of Atkinson in favor of a 

straightforward definition: “[a] plain error that affects 

substantial rights may be considered even though it was not 

brought to the court’s attention.” Fed. R. Crim. P. 52(b). It is, 

of course, “the text of the Rule that controls.” Krupski v. Costa 

Crociere S.p.A., 560 U.S. 538, 557 (2010) (Scalia, J., 

concurring in part). Rule 52(b) limits the power to notice 

unpreserved errors to only those affecting “substantial rights.” 

That language traces straight back to Wiborg. See, e.g., 

Storgard v. France & Canada S.S. Corp., 263 F. 545, 546 (2d 

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

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

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

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

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

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

defendants in criminal cases have always been amply 

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

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

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

conclude that Rule 52(b) disregarded the traditional meaning 

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

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

(explaining the canon of interpretation that “statutes will not 

be interpreted as changing the common law unless they effect 
15

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

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

concurring in part and concurring in the judgment), the 

commentary provided by the Advisory Committee confirms 

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

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

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

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

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

Advisory Committee’s insights into the proper interpretation 

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

commentary.”).

C. The Olano Framework

Despite all of this, the Court would later state that “the 

‘standard laid down in United States v. Atkinson [was] codified 

in [Rule] 52(b).’” United States v. Olano, 507 U.S. 725, 736 

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

our standard today. Courts may provide remedies under Rule 

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

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

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

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

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

the fairness, integrity or public reputation of judicial 

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

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

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

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

illusory.” Id. at 736–37.
16

Recent applications of Rule 52(b) have focused on its 

discretionary character. See Johnson, 520 U.S. at 469–70 

(“When the first three parts of Olano are satisfied, an appellate 

court must then determine whether the forfeited error 

‘seriously affect[s] the fairness, integrity or public reputation 

of judicial proceedings’ before it may exercise its discretion to 

correct the error.”) (citing Olano, 507 U.S. at 736). These cases 

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

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

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

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

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

new, as the original application of plain error always assumed 

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

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

658. But the Court expressly tied that probing inquiry to 

violations of natural, substantial rights “of such high character 

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

Rights.” Weems, 217 U.S. at 362.

That, in my view, is the best reading of Olano, one that 

harmonizes the guarantees of the Sixth Amendment and the 

tradition of noticing errors that, though unpreserved, uniquely 

threaten fundamental rights. Not one that licenses endless 

tradeoffs to efficiency. Rather, as the Supreme Court recently 

cautioned, while “[t]here may be instances where 

countervailing factors satisfy the court of appeals that the 

fairness, integrity, and public reputation of the proceedings 

will be preserved absent correction,” we must perform a 

“searching” inquiry. Rosales-Mireles v. United States, 138 S. 

Ct. 1897, 1909 (2018) (emphasis added). Searching should, as 

always, begin with the original public understanding of the 

right in question. Looking to that history, I conclude that 
17

allowing an appellate court to find facts and inferences outside 

the record to rescue a conviction that all agree lacked an 

essential element of proof usurps the role of the jury and 

therefore cannot be a countervailing factor under Olano. Put 

simply, it is difficult to imagine a countervailing consideration 

more fundamental than the fundamental right to a trial by jury 

secured by the Constitution.

III. CONTRACTING PLAIN ERROR REVIEW IS

INCONSISTENT WITH HISTORY AND TRADITION

In many respects, we have already traveled far from the 

guarantees of the Sixth Amendment to the conclusion that 

failing to submit every element of a crime to the jury does not 

“seriously affect the fairness, integrity, or public reputation of 

judicial proceedings.” Johnson, 520 U.S. at 469–70; see also

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

Johnson, we need not resolve whether respondents satisfy this 

element of the plain-error inquiry, because even assuming 

respondents’ substantial rights were affected, the error did not 

seriously affect the fairness, integrity, or public reputation of 

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

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

necessarily render a criminal trial fundamentally unfair or an 

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

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

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

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

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

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

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

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

relying on “overwhelming record evidence”); Cotton, 535 U.S. 
18

at 633 (finding no plain error where record evidence was 

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

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

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

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

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

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

concurring in part and dissenting in part).

But we have no such evidence to reach for. To uphold 

Nasir’s conviction, we must supplement the evidentiary record 

with information never presented to the jury. “The most [we] 

can conclude is that a jury would surely have found petitioner 

guilty beyond a reasonable doubt—not that the jury’s actual 

finding of guilty beyond a reasonable doubt would surely not 

have been different absent the constitutional error.” Sullivan, 

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

first understood to provide courts the power “to hypothesize a 

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

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

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

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

suspicion” of government power and drove the demand for

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

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

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

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

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

of violence and vindictiveness on the part of the people” 

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

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

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

course there is a double security against the prejudices of 
19

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

government, and against the passions of the multitude, who 

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

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

without juries both in England and in the Colonies and have 

always been held to be exempt from the otherwise 

comprehensive language of the Sixth Amendment’s jury trial 

provisions. There is no substantial evidence that the Framers 

intended to depart from this established common-law 

practice.”).

This history is reason alone to decline a fresh 

contraction of the plain error doctrine. The theory of plain error 

review exists, as must all laws, as a validation of our natural 

and fundamental rights. It is best imagined as a shield against 

arbitrary expansions of government, not a sword of efficiency 

striking at the very impediments to easier oppression 

demanded by the Framers, Ratifiers, and People. Failing to 

notice error here would necessarily contravene the original 

understanding of the Sixth Amendment and, therefore, 

necessarily flout the rule of Olano prohibiting courts to ignore 

errors that “seriously affect the fairness, integrity or public 

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

Many courts have held differently. Some say it is of no 

moment that the government did not prove knowledge because 

it is obvious the defendant knew he was a felon. Reliable 

records tell us so, they say, and disregarding what a jury did 

not see would jeopardize the fairness, integrity, and reputation 

of the proceedings. See, e.g., United States v. Miller, 954 F.3d 

551, 558 (2d Cir. 2020). Others conclude that “because 

convicted felons typically know they’re convicted felons,” any 

error is “almost always harmless.” United States v. Lavalais, 
20

960 F.3d 180, 188 (5th Cir. 2020); see also United States v. 

Gary, 963 F.3d 420, 423 (4th Cir. 2020) (Wilkinson, J., 

concurring) (“[T]he vast majority of defendants who will seek 

to take advantage of a structural Rehaif error are perfectly 

aware of their felony status. Felony status is simply not the kind 

of thing that one forgets.”). Still others find post-Rehaif

extra-record review to be a natural evolution to reviewing

documents outside the record at sentencing. See United States 

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

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

Perhaps. But I do not read these post-Rehaif cases to 

proceed from the common law tradition of plain error review 

and, as a corollary, the original understanding of the Sixth 

Amendment. I find no evidence that the guarantees enumerated 

in the Bill of Rights are measured for modern efficiency. To 

the contrary, our Framers expected these rights would protect 

us all from encroachment by the government they hesitantly 

accepted. That fear explains why, “[w]hen our more immediate 

ancestors removed to America, they brought this great 

privilege with them, as their birth-right and inheritance, as a 

part of that admirable common law, which had fenced round, 

and interposed barriers on every side against the approaches of 

arbitrary power.” 3 J. Story, Commentaries on the Constitution 

of the United States § 1773, at 652–53 (1833); see also

Thompson v. Utah, 170 U.S. 343, 350 (1898) (“The trial per 

pais, or by a jury of one’s country, is justly esteemed one of the 

principal excellencies of our constitution; for what greater 

security can any person have in his life, liberty, or estate than 

to be sure of the being devested of nor injured in any of these 

without the sense and verdict of twelve honest and impartial 

men of his neighborhood?” (quoting Juries, 3 Matthew Bacon, 

A New Abridgment of the Law (1736)). Put simply: “If you’re 
21

charged with a crime, the Sixth Amendment guarantees you the 

right to a jury trial. From this, it follows that the prosecutor 

must prove to a jury all of the facts legally necessary to support 

your term of incarceration.” Hester v. United States, 139 S. Ct. 

509, 509 (2019) (Gorsuch, J., dissenting).

For that reason, I prefer the certainty of the “great 

rights” Madison captured in the Constitution, including “trial 

by jury, freedom of the press, [and] liberty of conscience.” 1 

Annals of Cong. 453 (1789) (Joseph Gales ed., 1834). Rather 

than see them eroded, I find “it is proper that every 

Government should be disarmed of powers which trench upon 

those particular rights.” Id. at 458. While that differs from the 

conclusions of other courts, we should recall that “[t]hose who 

wrote our constitution[] knew from history and experience that 

it was necessary to protect against unfounded criminal charges 

. . . and against judges too responsive to the voice of higher 

authority.” Duncan, 391 U.S. at 156.

IV. CONCLUSION

I readily acknowledge that retrying defendants like 

Nasir might end up with juries returning the same verdict of 

guilt. But isn’t that the point? Like Justice Scalia, and

Blackstone long before him, I bear deep reservations about any 

holding that “scorn[s]” our “formal requirements . . . when they 

stand in the way of expediency.” Neder, 527 U.S. at 39–40 

(citing 4 W. Blackstone, Commentaries *350 (“[H]owever 

convenient [intrusions on the jury right] may appear at first, 

(as, doubtless, all arbitrary powers, well executed, are the most 

convenient,) yet let it be again remembered that delays and 

little inconveniences in the forms of justice are the price that 

all free nations must pay for their liberty in more substantial 
22

matters[.]”). Pillars of liberty are rarely toppled, but sanded 

down into forms unrecognizable to their creator. The right to 

be judged by impartial peers under the due process of law 

stands as an antagonist against such erosion, and “[s]o long

. . . as this palladium remains sacred and inviolable, the 

liberties of a free government cannot wholly fall.” 3 J. Story, 

supra § 1774, at 653 (citing 4 Blackstone Commentaries at 

*349–50).

For all these reasons, I conclude that “[i]n the end, the 

best anyone can seem to muster . . . is that, if we dared to admit 

in his case what we all know to be true about the Sixth 

Amendment, we might have to say the same in some others.”

Ramos, 140 S. Ct. at 1408 (plurality opinion). I therefore

concur.
18

judicial proceedings. Id. at 1021–22. Because the defendant’s 

presentence report “stated that he had been incarcerated for 

lengthy terms before possessing the firearm,” id. at 1020, he 

could not prove that the error affected “the fairness, integrity, 

or public reputation of his trial,” id. at 1022. Accordingly, the 

Eleventh Circuit declined to set aside his conviction. Id. at 

1022.

The majority chides the Eleventh Circuit for relying on

United States v. Vonn, 535 U.S. 55 (2002), and concluding that 

a court need not confine itself to the trial record at prong four, 

because Vonn involved review of a guilty plea rather than a 

conviction after a jury trial. Maj. Op. 39–40. But the majority 

ignores the Eleventh Circuit’s discussion of United States v. 

Young. See Reed, 941 F.3d at 1021. In Young, the Supreme

Court denied plain-error relief where a prosecutor made improper comments during rebuttal because the remarks were 

made in response to defense counsel’s own improper remarks 

during summation and “were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of 

justice.” 470 U.S. at 16–19. The Court explained that it could 

not “properly evaluate [the defendant’s claims of error] except 

by viewing [them] against the entire record,” id. at 16 (emphasis added), because Rule 52(b) “authorizes the Courts of Appeals to correct only ‘particularly egregious errors,’” id. at 15

(quoting Frady, 456 U.S. at 163). 

The Supreme Court has never held that the “entire record” that Young instructs us to examine means just the trial record.8 That would make no sense: reasonable people will 

8

In Makiel v. Butler, 782 F.3d 882 (7th Cir. 2015), the Seventh 

Circuit discussed the difference between the “entire record” 

and the “trial record” in a case involving the materiality 
19

consider all relevant information in assessing whether our decision to affirm Nasir’s conviction works a miscarriage of justice that is inconsistent with fairness, integrity, and the good 

reputation of our judicial system. And unlike the majority, they 

will not arbitrarily ignore the indisputable fact of Nasir’s scienter and guilt. Maj. Op. 59–64. In deciding whether to exercise our discretion, we should consider reliable materials 

within and outside of the trial record just as thoughtful members of the public certainly will.

9

standard of the Compulsory Process Clause. Id. at 908–10. Although Makiel was not a plain-error case, the court’s discussion 

assists our consideration of the scope of discretionary review 

prescribed by Olano. Similar to our task at prong four, the court 

in Makiel had to evaluate the defendant’s argument in light of 

public interests such as “the integrity of the adversary process, 

the interest in the fair and efficient administration of justice, 

and the potential prejudice to the truth-determining function of 

the trial process.” Id. at 909. The Seventh Circuit concluded 

that when the Supreme Court instructs circuit courts to evaluate 

claims of trial error in the context of the “entire record,” that is 

broader than the “trial record.” Id.

9 Consider the prong-four significance of Nasir’s Old Chief

stipulation, which of course was part of the trial record. The 

majority suggests that it could never be even circumstantial evidence of his scienter, Maj. Op. 55–57, but that assertion is not 

compelled by Rehaif. And it wars against common sense and 

experience. As a strictly logical proposition, it is true that 

Nasir’s stipulation proved only that he knew of his felon status 

as of the date of the stipulation; it did not necessarily prove that 

he knew he was a felon when he was arrested with the gun. But

just as a factual statement can be strictly true and yet fraudulent 
20

The majority also assails the Second Circuit’s decision 

in Miller and the Seventh Circuit’s decision in Maez. Its criticism of the approach taken by those two circuits is similarly 

unpersuasive.

Miller involved a defendant whose presentence investigation report showed that he spent several years in prison 

prior to his firearm possession, rendering it obvious that he 

knew he was a felon at the time of possession. 954 F.3d at 560. 

The Second Circuit “ha[d] no doubt that, had the Rehaif issue 

been foreseen by the district court, [the defendant] would have 

stipulated to knowledge of his felon status to prevent the jury 

from hearing evidence of his actual sentence.” Id. at 560. So, 

the court concluded, the fairness, integrity, and public reputation of the judicial system would not be seriously affected by 

upholding the conviction; in fact, the defendant was so obviously guilty that vacating his conviction “would have that effect.” Id. at 559. In Maez, the Seventh Circuit largely adopted 

the Second Circuit approach, concluding that vacating the convictions of two defendants whose presentence reports indicated 

that they served more than one year in prison on prior felony 

because of a material omission, Nasir’s stipulation does not 

foreclose the possibility that he also understood that he was a 

felon every day after his knowing and voluntary guilty pleas in 

2000, 2001, and 2007. 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. Such an inference, though not logically required, would be patently sensible to many people. And surely, many will consider his stipulation in this light when evaluating our discretionary decision 

whether to notice the plain error created by Rehaif.
21

convictions would negatively affect the fairness, integrity, and 

public reputation of judicial proceedings. 960 F.3d at 964–66. 

The majority faults the Second and Seventh Circuits for

“treat[ing] judicial discretion as powerful enough to override 

the defendant’s right to put the government to its proof when it 

has charged him with a crime.” Maj. Op. 46–47. But Nasir has 

not been deprived of that right. He had the opportunity to insist 

that the government be required to prove that he knew he was 

a felon at the time of his firearm possession. He did not do so, 

instead agreeing that no such proof need be presented. As a 

direct result of that choice, the government did not introduce 

evidence as to Nasir’s knowledge of his status at the time of 

possession though such evidence was readily available. I do

not see why Nasir’s failure to object to the jury instruction and 

decision to instead avail himself of an Old Chief stipulation 

should continue to redound to his benefit now that we are exercising remedial discretion.

F. Nasir does not satisfy Olano’s step-four standard for error-correction

Our sister circuits’ approach does not “imply that relief 

on plain-error review is available only to the innocent.” Maj. 

Op. 47.10 If, for example, an error so corrupts a judicial 

10 Indeed, as the Seventh Circuit recognized, “defendants can 

sometimes show an effect on fairness or integrity without a 

claim of innocence.” Maez, 960 F.3d at 962. But “though a defendant’s likelihood of actual guilt or innocence does not necessarily control the third prong of plain-error review, it may 

play a role at prong four.” Id. That is because a court has “broad 

discretion under prong four to leave even plain errors 
22

proceeding as to make its verdict completely unreliable, no 

court would require a defendant to prove on appeal that he was 

actually innocent before vacating a conviction resulting from 

such a proceeding. See Medley, 972 F.3d at 424–25 (Quattlebaum, J., dissenting) (explaining that “central” to prong-four

analysis in a criminal case “is a determination of whether, 

based on the record in its entirety, the proceedings against the 

accused resulted in a fair and reliable determination of guilt” 

(internal quotation marks omitted) (quoting United States v. 

Ramirez-Castillo, 748 F.3d 205, 217 (4th Cir. 2014))). That is 

because the Third Branch would not want to put its imprimatur 

on a proceeding that makes a mockery of justice and reduces 

the system’s standing in the eyes of the public. But that is not 

a problem here. A simple, unobjected-to error in jury instructions, where the defendant’s conviction would have been certain had an objection been made at the proper time, does not 

cry out for an exercise of our discretion.

Remanding this case for retrial is unnecessarily burdensome and seriously undermines the fairness and public reputation of judicial proceedings. That broad inquiry is the standard 

governing our exercise of discretion. The majority compounds 

its error by explicitly limiting our prong-four discretion to 

Nasir’s trial, which, it insists, “is the only judicial proceeding 

at issue.” Maj. Op. 41 n.22. Not so. At prong four we ask 

whether refusing to cure the plain error would “seriously affect 

the fairness, integrity or public reputation of judicial proceedings” generally, not merely the particular defendant’s proceeding. Puckett, 556 U.S. at 135. As the Court elaborated in 

Puckett, we consider whether affirming Nasir’s conviction 

uncorrected where [it has] no doubt as to the ultimate result of 

further proceedings.” Id. at 963.
23

would call into question “the integrity of the system” and be so 

ludicrous as to “compromise the public reputation of judicial 

proceedings.” Id. at 142–43 (emphasis added); see also United 

States v. Edgell, 914 F.3d 281, 291 (4th Cir. 2019); United 

States v. Marroquin, 884 F.3d 302, 304 (5th Cir. 2018) (Smith, 

J., dissenting from denial of rehearing en banc); United States

v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005) (en 

banc); id. at 742 (Ebel, J., concurring); id. at 747 (Hartz, J., 

concurring). Because the majority asks the wrong prong-four 

question, it refuses to consider information that would suggest 

the correct answer.

Even if we improperly limited our prong-four inquiry to 

what the majority erroneously describes as “the actual field of 

play – the trial,” Maj. Op. 41 n.22, we should still affirm. When 

asked twice at oral argument how Nasir would attempt to disprove the knowledge-of-status element if the case were sent 

back for retrial, his counsel was unable to give a responsive 

answer. (That is not a criticism of counsel’s performance; there 

is no plausible explanation.) Instead, counsel allowed that 

Nasir would strategically use a remand to try to negotiate a better plea deal. In light of that revelation, I believe that thoughtful 

members of the public would view the majority’s judgment and 

Nasir’s windfall with bemused cynicism rather than reputationenhancing admiration.

G. We are bound by the Supreme Court’s plainerror precedent

The majority at least purports to apply Olano and its 

progeny. Judge Matey’s opinion strikes out in an entirely different direction, citing first principles. I endorse that approach 

in cases where lower court judges write on a blank slate, but in 

this appeal we are guided by ample Supreme Court precedent.
24

In any event, although we have not had the benefit of originalist briefing and argument, I doubt that Rule 52(b)’s remedial 

discretion as currently applied offends the Sixth Amendment 

and note that Justices Scalia and Thomas both joined Olano

without any reservation, originalist or otherwise. Cf. Concurring Op. 13–16 (criticizing Atkinson and Olano as allegedly 

unwarranted expansions of original plain-error doctrine).

Moreover, I fail to grasp how a purportedly originalist application of plain-error review can affirm the conviction of noncriminal conduct but disallows the conviction of conduct that 

was certainly criminal but not properly proven. Cf. United 

States v. Jabateh, 974 F.3d 281, 287 (3d Cir. 2020).

*****

The Supreme Court has disapproved “a reflexive inclination by appellate courts to reverse because of unpreserved 

error,” a tendency contrary to the “strictly circumscribed” 

appellate-court authority to remedy unpreserved error only 

where necessary due to exceptional circumstances. Puckett, 

556 U.S. at 134 (internal quotation marks omitted) (quoting 

United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005) 

(Boudin, C.J., concurring)). Yet the majority persists in the 

face of overwhelming, reliable information supporting Nasir’s 

conviction. Its error stems from a basic misunderstanding of 

the nature of plain-error review. I respectfully dissent from 

Section II.E of the majority opinion.
1

PORTER, Circuit Judge, joined by SMITH, Chief Judge, 

CHAGARES, HARDIMAN, SHWARTZ, BIBAS, and 

PHIPPS, Circuit Judges, concurring in part and dissenting in 

part.

I concur with Sections I and II.D of the majority opinion. But I depart from the majority’s plain-error discussion in 

Section II.E because it is profoundly mistaken, it dismisses the 

collective wisdom of nearly every other circuit court, and—

ironically—it derogates the fairness, integrity, and public reputation of judicial proceedings. After reviewing the entire record, I would affirm Malik Nasir’s conviction rather than remand it for a pointless retrial.

I. ADDITIONAL BACKGROUND

A. Nasir pleaded guilty to felony charges on 

three separate occasions and actually served 

over seven years’ imprisonment

On September 6, 2000, Nasir pleaded guilty to attempting to possess cocaine with intent to distribute. As a result of 

his guilty plea and felony conviction, Nasir was sentenced to 

seven years’ imprisonment. After serving one year in prison, 

his sentence was suspended, and he was placed on supervised 

probation.

On June 21, 2001, Nasir pleaded guilty to possession of 

cocaine with intent to distribute. As a result of his guilty plea 

and felony conviction, Nasir was sentenced to ten years’ and 

thirty days’ imprisonment. After serving eighteen months in 

prison, his sentence was suspended and he was placed on supervised probation.
2

On June 20, 2007, Nasir pleaded guilty to possession of 

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

§ 922(g)(1). As a result of his guilty plea and felony conviction, Nasir was sentenced to eighty-four months’ imprisonment. He actually served five and one-half years of that sentence before being released on December 14, 2012.

B. Nasir stipulated to his prior felony conviction 

and did not make a scienter objection at trial

In 2015, Nasir was indicted for violating the felon-inpossession statute, together with several drug-related charges. 

At his 2017 trial, Nasir stipulated that he had been “convicted 

of a felony crime punishable by imprisonment for a term exceeding one year, in the United States District Court for the 

Eastern District of Virginia.” S.A. 21. Although Nasir’s stipulation did not specify the prior felony conviction, it was for

possession of a firearm by a convicted felon in violation of 18 

U.S.C. § 922(g)(1)—the same crime for which he was being 

tried. Nasir’s stipulation prevented the government from introducing evidence to prove the nature and circumstances of his 

prior felony conviction. See Old Chief v. United States, 519 

U.S. 172, 174–75 (1997).

Under the law at the time of Nasir’s trial, the government adduced sufficient evidence to secure a conviction under 

§ 922(g)(1) and the district court properly instructed the jury 

on the elements of that crime. Nasir did not object to the district 

court’s jury instruction or to the sufficiency of the government’s evidence on the § 922(g)(1) charge. But while his appeal was pending the Supreme Court decided Rehaif v. United 

States, 139 S. Ct. 2191 (2019), holding that in order to secure 

a conviction under § 922(g), the government must prove that 

the defendant “knew he belonged to the relevant category of 
3

persons barred from possessing a firearm.” Id. at 2200. Nasir

then supplemented his briefing by adding new arguments 

based on Rehaif.

II. NASIR CANNOT SATISFY OLANO PRONG FOUR, SO 

HIS CONVICTION SHOULD BE AFFIRMED

A. The purpose of plain-error review

The majority duly notes that because Nasir did not object to the sufficiency of the evidence on the knowledge-ofstatus element, we review for plain error. Maj. Op. 27. But the 

majority fails to consider the reason for plain-error review and 

how that reason informs our decision. Federal Rule of Criminal 

Procedure 52(b) exists to promote compliance with claimpresentation rules. When a defendant forfeits an issue by failing to timely object, we have discretion to correct the plain error. But that discretion is bounded by the four factors discussed 

in United States v. Olano, 507 U.S. 725, 732–36 (1993), particularly the prong-four focus on the fairness, integrity, and 

public reputation of judicial proceedings.

The link between forfeiture and plain-error review is 

relevant here because Nasir failed to raise a knowledge-of-status objection at his trial. True, the Supreme Court did not 

change the rule until two years later when it decided Rehaif. 

But even if a solid wall of circuit authority makes objection at 

trial apparently futile, Rule 52(b) applies when the source of 

plain error is a supervening decision. Johnson v. United States, 

520 U.S. 461, 468 (1997). Contra United States v. Keys, 95 

F.3d 874, 878 (9th Cir. 1996) (Rule 52(a), rather than Rule 

52(b), governs appellate review of unpreserved error when defendant “faced with a solid wall of circuit authority” at trial), 

vacated, 520 U.S. 1226 (1997). 
4

Contrary to the majority’s suggestion, Maj. Op. 28–30, 

the scienter issue was hardly a secret at the time of Nasir’s trial. 

The Supreme Court highlighted the constitutional importance 

of mens rea in Staples v. United States, 511 U.S. 600, 619–20

(1994) (government required to prove that defendant knew that 

the features of his AR-15 rifle brought it within the scope of 

machine-gun provision of National Firearms Act), and United 

States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (in 

prosecution under Protection of Children Against Sexual 

Exploitation Act, government required to prove that defendant 

knew he was sending or receiving pictures of minors engaged 

in sexually explicit conduct). In 1995, a divided Fourth Circuit 

held that the government need not prove that the defendant in 

a § 922(g)(1) prosecution had the requisite scienter regarding 

his felony status. United States v. Langley, 62 F.3d 602 (4th

Cir. 1995) (en banc). Subsequently, the scienter issue in 

§ 922(g) cases continued to percolate in courts throughout the 

country. See, e.g., United States v. Games-Perez, 695 F.3d 

1104, 1116–24 (10th Cir. 2012) (Gorsuch, J., dissenting from 

denial of rehearing en banc); United States v. Games-Perez, 

667 F.3d 1136, 1140–42 (10th Cir. 2012); United States v. 

Butler, 637 F.3d 519, 523–25 (5th Cir. 2011); United States v. 

Olender, 338 F.3d 629, 637 (6th Cir. 2003); United States v. 

Enslin, 327 F.3d 788, 798–99 (9th Cir. 2003); United States v. 

Wilson, 159 F.3d 280, 293–96 (7th Cir. 1998) (Posner, J., dissenting).

In our circuit, a district court anticipated Rehaif by a 

decade, holding that in a § 922(g)(1) prosecution the government must prove that the defendant knew of his felon status. 

United States v. Kitsch, No. 03-594-01, 2008 WL 2971548, at 

*7 (E.D. Pa. Aug. 1, 2008). And in prosecutions for the closely

related charge of aiding and abetting a violation of § 922(g)(1),
5

we have long required the government to prove beyond a reasonable doubt that the defendant knew the possessor’s status as 

a felon. United States v. Xavier, 2 F.3d 1281, 1286–87 (3d Cir. 

1993).

Even though a timely scienter-based objection would 

likely have been overruled in 2017, the objection itself could 

have prompted the government to supplement the record with 

additional evidence of Nasir’s mens rea. See Pfeifer v. Jones & 

Laughlin Steel Corp., 678 F.2d 453, 457 n.1 (3d Cir. 1982) 

(contemporaneous objection rule “affords an opportunity for 

correction and avoidance in the trial court in various ways: it 

gives the adversary the opportunity either to avoid the challenged action or to present a reasoned defense of the trial 

court’s action; and it provides the trial court with the alternative of altering or modifying a decision or of ordering a more 

fully developed record for review”), judgment vacated on other 

grounds, 462 U.S. 523 (1983). But Nasir—unlike Rehaif—did 

not preserve his scienter-based objection, so he deprived the

government and trial court of these opportunities.

B. The nature of plain-error review

Rule 52(b) gives us discretion to correct plain error in 

such cases, but the rule is “permissive, not mandatory.” Olano, 

507 U.S. at 735. And our discretionary authority to remedy a 

forfeited error is “strictly circumscribed,” Puckett v. United 

States, 556 U.S. 129, 134 (2009), though not as the majority 

appears to believe. The majority asserts that we have only “a 

degree of discretion in determining whether to correct [plain] 

error,” which seems to suggest a presumption in favor of errorcorrection and that our discretion to ignore plain error is quite 

narrow. Maj. Op. 27.
6

The majority’s parsimonious view of our Rule 52(b) 

discretion is contrary to Supreme Court precedent. We are to 

correct plain errors “sparingly,” Jones v. United States, 527 

U.S. 373, 389 (1999), and only in “exceptional circumstances,” 

United States v. Atkinson, 297 U.S. 157, 160 (1936), where it 

is necessary to set aside “particularly egregious errors,” United 

States v. Young, 470 U.S. 1, 15 (1985) (internal quotation 

marks omitted) (quoting United States v. Frady, 456 U.S. 152, 

163 (1982)). Meeting all four prongs of the plain-error standard 

“is difficult, ‘as it should be.’” Puckett, 556 U.S. at 135 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 

(2004)). That is particularly true when, as here, curing the plain 

error would require the district court to conduct a burdensome 

jury retrial. Rosales-Mireles v. United States, 138 S. Ct. 1897, 

1909 (2018).

The reviewing court’s exercise of prong-four discretion 

is an independent barrier to relief on a forfeited claim of error.

Even “a plain error affecting substantial rights does not, without more, satisfy the Atkinson standard, for otherwise the discretion afforded by Rule 52(b) would be illusory.” Olano, 507 

U.S. at 737. Regrettably, we have sometimes conflated prongs 

three and four with little to no separate prong-four analysis. See 

United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) 

(suggesting, without any prong-four analysis, that the plain error automatically satisfied prong four); Xavier, 2 F.3d at 1287

(same). 

This case affords a rare opportunity for the en banc 

Court to disavow such imprecision and fine-tune its approach 

to plain-error review. Alas, the majority exacerbates the problem by declaring that the plain error in Nasir’s case derogated 

his substantial rights thus satisfying Olano step four. Maj. Op. 

62 (citing Gaydos, 108 F.3d at 509). Rather than conduct “a 
7

case-specific and fact-intensive” review in light of the entire 

record, Puckett, 556 U.S. at 142, the majority simply assumes 

that plain error of an undefined “magnitude” categorically requires correction at Olano prong four. Maj. Op. 62.

C. Plain-error review requires consideration of 

the entire record

Casting aside the case-specific and fact-intensive approach required by Puckett, the majority asserts that “constitutional norms” require error-correction because the Supreme 

Court’s decision in Rehaif retroactively created due process 

concerns. Maj. Op. 62. But framing the plain error as a dueprocess violation does not automatically satisfy Olano prong 

three or four. See United States v. Marcus, 560 U.S. 258, 264–

66 (2010). That is because even constitutional rights “may be 

forfeited in criminal as well as civil cases by the failure to make 

timely assertion of the right before a tribunal having jurisdiction to determine it.” Olano, 507 U.S. at 731 (internal quotation 

marks omitted) (quoting Yakus v. United States, 321 U.S. 414, 

444 (1944)). So a defendant’s failure to object at trial, even 

though the error was not plain at the time, “may well count 

against the grant of Rule 52(b) relief.” Henderson v. United 

States, 568 U.S. 266, 278–79 (2013).

The Court in Johnson held only that an error that was 

not plainly incorrect at the time of trial becomes plain when the 

law is subsequently clarified. Johnson, 520 U.S. at 468. That 

is, the timing question concerned the “plainness” of the error, 

which relates only to Olano prong two. See Henderson, 568 

U.S. at 279 (time-of-review rule adopted in Johnson and 

Henderson applies specifically to the second part of the fourpart Olano test). The majority’s insistence that our prong-four 

analysis is likewise limited to the time of trial (as memorialized 
8

in the trial record) is unwarranted and finds no support in 

Johnson. 

Indeed, having found that the error was plain, the Court 

in Johnson assumed without deciding that Olano prong three 

was satisfied and denied relief under prong four because the 

error did not “seriously affect[] the fairness, integrity or public 

reputation of judicial proceedings.” Johnson, 520 U.S. at 469–

70 (internal quotation marks omitted) (quoting Olano, 507 U.S. 

at 736). Two aspects of the Court’s discussion are relevant 

here. First, the Court itself—and not the jury—found that the 

record contained enough evidence on materiality that no reasonable juror could have decided the materiality question1

in 

any other way. Id. at 470; see also United States v. Johnson, 

899 F.3d 191, 200 (3d Cir. 2018) (finding the trial record contained sufficient evidence to support defendant’s conviction 

and declining to cure plain error at prong four, even though the 

jury was not instructed to find, and did not find, a required element).

Second, in making that finding the Court did not confine 

its review to information available only at the time of trial. Rather, it noted that “[m]ateriality was essentially uncontroverted 

at trial and has remained so on appeal.” Johnson, 520 U.S. at 

470 (emphasis added) (footnote omitted). Reviewing the case 

under the prong-four standard, the Court considered whether 

petitioner made a plausible showing2—not just at trial but 

1 The plain error in Johnson concerned the trial court’s failure 

to submit materiality to the jury, as subsequently required in 

United States v. Gaudin, 515 U.S. 506 (1995). Johnson, 520 

U.S. at 464.

2 We have also previously used a “no-plausible-argument” or 

“no-plausible-explanation” test in deciding plain-error cases at 
9

afterwards, before the Eleventh Circuit or the Supreme 

Court—that the false statement for which she was convicted 

was not material. Id. Satisfied that she had not, the Court affirmed the court of appeals’ exercise of its discretion to decline 

to correct the plain error. So while the “plainness” of an error 

(prong two) is pegged to the time of trial, the broader question 

whether the plain error seriously affects the fairness, integrity, 

and public reputation of judicial proceedings (prong four) has 

a longer time horizon extending throughout the appeal process.

See Henderson, 568 U.S. at 275 (the reviewing court examines 

Olano’s third and fourth criteria by “looking at the circumstances that now are,” i.e., at the time of the appeal rather than 

by looking back to the time of trial).

The majority attempts to narrow the discretion provided 

by Rule 52(b) by ignoring its expansive text and cabining its 

temporal scope. Throughout its opinion, the majority insists 

that the discretion afforded by Rule 52(b) must be restricted to 

the time of the trial itself and to facts in the trial record. This is 

necessary, the majority warns, to avoid trampling on Fifth and 

Sixth Amendment rights in violation of In re Winship, 397 U.S. 

358 (1970). Maj. Op. 32–33.

The majority misapprehends the nature and purpose of 

plain-error review, particularly at prong four. We do not 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. Rather, as is 

clear from the entire line of plain-error cases before and after 

Olano, there is a material difference between our remedial 

prong four. See, e.g., United States v. Greenspan, 923 F.3d 

138, 154–56 (3d Cir. 2019); United States v. W. Indies Transp., 

Inc., 127 F.3d 299, 306 (3d Cir. 1997).
10

discretion under Rule 52(b) and the jury’s factfinding role at 

trial. At prong four, we answer a question that no jury could 

ever appropriately entertain: whether, considering the entire 

record, reasonable observers would conclude that declining to 

correct the plain error creates a miscarriage of justice or would 

seriously affect the fairness, integrity, and public reputation of 

judicial proceedings generally. 

Conversely, remanding for retrial on an uncontestable 

element may be “[t]he real threat” to fairness and undermine 

the reputation of judicial proceedings—a powerful truism that 

the majority does not acknowledge. United States v. Cotton, 

535 U.S. 625, 634 (2002); see also Dominguez Benitez, 542 

U.S. at 82 (plain-error review should enforce Rule 52(b)’s policy of reducing “wasteful reversals”).

The majority’s misconception of plain-error review infects its entire discussion of the record that we review under 

Rule 52(b). Because the majority regards plain-error review as 

a kind of extension of the jury trial rather than a discretionary

act tethered to Rule 51(b)’s forfeiture rule, it fixates on 

Winship’s requirement of proof beyond a reasonable doubt in 

criminal trials. Maj. Op. 32–37.

3 Were we reviewing Nasir’s 

conviction for sufficiency of the evidence, the majority’s scruples would be more persuasive. But we are merely exercising 

remedial discretion over a forfeited objection, so unless the 

3

In response, the majority contends that what separates us is 

nothing less than fidelity to the “Constitution itself.” Maj. Op. 

34 n.17. But the majority ignores the thrust of my criticism. In 

a different case the majority’s fixation on Winship would be 

salutary, but here it is misplaced because plain-error review is 

not a continuation of the jury trial. 
11

majority intends to attack the constitutionality of Rule 52(b)

generally, its analysis is misdirected.4

D. By limiting plain-error review to the trial record, the majority creates a per se rule requiring error correction

We evaluate a claim of plain error “against the entire 

record” because “[i]t is simply not possible for an appellate 

court to assess the seriousness of the claimed error by any other 

means.” Young, 470 U.S. at 16. This case nicely illustrates why 

it is “simply not possible” to perform a prong-four assessment 

without considering the whole record. At prong three, we review only the trial record to determine whether the error affected the outcome of the district court proceedings. See United 

States v. Maez, 960 F.3d 949, 961 (7th Cir. 2020). If it did, then 

we move to Olano prong four. But if at prong four we continue 

to limit our consideration to the trial record we see only the 

prejudice that satisfied prong three in the first place. We cannot

see—or more precisely, we pretend not to notice—Nasir’s 

4 We do not “[d]isregard[] constitutional norms” in refusing to 

remand a case to the district court on plain-error review when 

the jury’s verdict was obviously correct. Maj. Op. 62. Surely 

the majority is not suggesting that plain-error review is inapplicable whenever important constitutional rights are at issue; 

nor (I hope) is it suggesting that nearly all of our sister circuits 

are so unconcerned with the preservation of constitutional 

guarantees that they would disregard an obvious Sixth 

Amendment violation just for the sake of keeping a person behind bars. See infra at 12–13. Simply put, the majority’s approach challenges the constitutionality of Rule 52(b)’s plainerror standard as explicated in Supreme Court decisions.
12

three prior felony guilty pleas5and his seven and one-half years 

of imprisonment. Thus blinkered, we cannot adopt the broader, 

outward-looking perspective necessary to determine whether

public perceptions of fairness, integrity, and the reputation of 

judicial proceedings require us to cure the error. 

The majority’s crucial move—limiting the scope of our 

prong-four review—is dispositive in appeals from Rehaifinfected felon-in-possession convictions where, as here, the defendant stipulated to his felon status. Because of Nasir’s stipulation, the government was precluded from adducing evidence 

relating to the nature and circumstances of his prior felony convictions. Old Chief, 519 U.S. at 174–75. For the reasons 

5 The majority is comfortable inferring a defendant’s 

knowledge-of-felon status from his prior guilty plea because 

“when a defendant pleads guilty, the district court must ensure 

that the plea is knowing and voluntary.” Maj. Op. 40. But the 

majority refuses to apply that same logic to Nasir, who knowingly and voluntarily pleaded guilty to felony charges on three 

separate occasions. Indeed, he even pleaded guilty to a prior 

felon-in-possession charge. So as the majority acknowledges, 

when he was tried for the same offense in this case he necessarily knew that he was a felon. This is precisely the sort of 

information that should inform our discretionary judgment at 

prong four. See, e.g., United States v. Huntsberry, 956 F.3d 

270, 285 (5th Cir. 2020); United States v. Ward, 957 F.3d 691, 

695 (6th Cir. 2020). Nasir’s plea to a felon-in-possession 

charge, which is the offense embodied in the Old Chief stipulation, is a central reason why this case is not one where allowing the conviction to stand would impugn the fairness, integrity, or reputation of judicial proceedings. See also infra at 16–

18.
13

explained in Old Chief, shielding Nasir in that manner was appropriate at his jury trial. But post-trial, the unfair-prejudice

and jury-misleading rationales of Federal Rule of Evidence

403 no longer obtain, which highlights the tension between 

Rehaif and Old Chief that Justice Alito noted in his Rehaif dissent. Rehaif, 139 S. Ct. at 2209 (Alito, J., dissenting). The majority’s restriction of our prong-four review to the trial record

effectively converts Nasir’s Old Chief stipulation from a jurytrial shield into an appellate sword preventing this Court from 

considering facts relating to his scienter.

Allowing Nasir to deploy Old Chief offensively itself 

adversely affects the fairness, integrity, and public reputation 

of judicial proceedings. But limiting our prong-four review to 

the trial record is even more consequential. By short-circuiting 

the Olano analysis at step three, the majority predestines the 

result in appeals of Rehaif-infected felon-in-possession convictions involving an Old Chief stipulation—always in favor of 

error-correction. The combination of Old Chief and the majority’s insistence that we may consider only the trial record, even 

at prong four, creates a per se rule requiring remand in every 

such case. That is precisely the type of “flawed” approach that 

the Supreme Court has disapproved because it renders our 

prong-four discretion “illusory.” Olano, 507 U.S. at 737; 

Young, 470 U.S. at 16 n.14.

Given the Supreme Court’s clear and repeated admonitions, the majority offers assurance that it is not advocating the 

adoption of a per se rule. Maj. Op. 50 n.29. But that disclaimer 

is meaningless; whether the majority intends to “advocate” the 

adoption of a per se rule, it has in fact created one. Gamely 

trying to demonstrate the flexibility of its per se rule, the majority offers two examples “where sufficient evidence was presented at trial to show that the defendant was aware of his status 
14

as a felon at the time of the crime.” Id. (citing United States v. 

Moss, 812 F. App’x 108, 111 (4th Cir. 2020), and United States 

v. Velázquez-Aponte, 940 F.3d 785, 800 (1st Cir. 2019)). Both 

cases are inapposite, however, because in neither did the defendant invoke the Old Chief bar by stipulating to his prior felony conviction. 

Throughout its opinion, the majority discounts the impact of Nasir’s Old Chief stipulation. Maj. Op. 47 n.26 (“[W]e 

think the existence of an Old Chief stipulation has little relevance to the analysis . . . .”). That is a massive blind spot.

Because defendants typically avail themselves of 

Old Chief when they have multiple or damning 

felony records, it should come as no surprise that 

a reviewing court, conducting plain-error review, 

will find that the fairness, integrity, or public reputation of judicial proceedings has not been affected, when considering evidence of the defendant’s felony status beyond just the trial record.

United States v. Miller, 954 F.3d 551, 559 n.23 (2d Cir. 2020).

That is true here, as well. But by limiting our review to the trial 

record—which of course includes the Old Chief bar—the majority makes it impossible for us to perform the required prongfour analysis. 

The majority has no answer to the outsized role of Old 

Chief in this case, except to implausibly suggest that Nasir’s 

stipulation did not prevent the government from introducing 

his knowledge-of-status at trial. Maj. Op. 50 n.29. But precisely because of Nasir’s stipulation, the trial court would almost certainly have sustained the inevitable unfair-prejudice 

objection because the evidence proving his felon status and 
15

knowledge of status is substantially the same, or at least inextricably intertwined. 

E. The “entire record” is broader than the trial 

record

The majority leans heavily on Johnson for its holding 

that we may consider only the trial record on plain-error review, rather than the entire record. Maj. Op. 34–35. But 

Johnson was not a felon-in-possession case, so the trial record 

was not constrained by Old Chief. As a result, the evidence 

supporting materiality was so “overwhelming” that petitioner 

had “no plausible argument” at trial or on appeal. Johnson, 520 

U.S. at 470. The lack of an Old Chief stipulation is highly relevant to the analysis in Johnson and distinguishes it from this 

case. 

The majority’s discussion of Neder v. United States, 

527 U.S. 1 (1999), is even less persuasive. Maj. Op. 35 n.18. 

Neder was a harmless-error case decided under Rule 52(a), not 

a Rule 52(b) plain-error case. 527 U.S. at 7–8. Olano step three 

is essentially harmless-error analysis, and as the majority itself 

acknowledges, all agree that it is based on the trial record. Maj. 

Op. 44–45 (discussing Maez). But the move from step three to 

step four distinguishes this and other plain-error cases from 

Neder, and it is at step four that we are required to evaluate the 

case “against entire record.” Young, 470 U.S. at 16. The majority’s reliance on Neder in support of its trial-record-only 

holding underscores its persistent tendency to conflate Olano

prongs three and four.6

6 The majority’s emphasis on the amount of evidence in the 

Neder trial record is curious, considering its heavy reliance on 
16

Our sister circuits understand this quite well. As the majority concedes, the Second, Fifth, Sixth, Seventh, Eighth, 

Ninth, and Eleventh Circuits have repeatedly affirmed jury verdicts in § 922(g) cases and rejected arguments similar to those 

accepted by the majority. Miller, 954 F.3d at 560; Huntsberry, 

956 F.3d at 285–87; Ward, 957 F.3d at 695; Maez, 960 F.3d at 

963–64; United States v. Owens, 966 F.3d 700, 706–07 (8th 

Cir. 2020); United States v. Benamor, 937 F.3d 1182, 1188–89

(9th Cir. 2019); United States v. Reed, 941 F.3d 1018, 1021–

22 (11th Cir. 2019). Even United States v. Medley, 972 F.3d 

399 (4th Cir. 2020), which the majority enlists for support, 

Maj. Op. 57–58, does not explicitly foreclose consideration of 

matters outside the trial record when addressing forfeited 

Rehaif claims under the plain-error standard. Medley, 972 F.3d 

at 417. Medley is already an outlier; the majority would go even 

further and place this Court beyond the pale. 

At last count, 140 appellate judges and 15 district judges 

sitting by designation have voted to uphold a felon-in-possession conviction on plain-error review of a Rehaif claim. How 

could so many federal judges approve the obvious violation of 

important Fifth Amendment and Sixth Amendment rights? The

In re Winship. Maj. Op. 35 n.18. The defendant’s Sixth 

Amendment right is to have all evidence proven beyond a reasonable doubt to a jury, not simply to have the government put 

a surfeit of evidence into a record. Yet, applying the harmlesserror standard the Supreme Court affirmed Neder’s conviction 

because there was enough evidence in the record to find an element of the offense—even though the jury never made such a 

finding. 527 U.S. at 16–18. Neder thus undermines rather than 

supports the majority’s primary rationale in this plain-error 

case. 
17

answer is that they haven’t; our colleagues overwhelmingly 

understand the difference between judicial factfinding and 

plain-error remedial discretion.7

By holding that we may not review the whole record at 

prong four, the majority positions us on the short end of a lopsided circuit split.It fails to identify a “compelling basis” to do 

so, in defiance of our Court’s “general[] reluctan[ce]” to create 

such splits. In re Asbestos Prod. Liab. Litig. (No. VI), 921 F.3d 

98, 109 (3d Cir. 2019) (internal quotation marks omitted)

(quoting Parker v. Montgomery Cty. Corr. Facility/Bus. Office 

Manager, 870 F.3d 144, 152 (3d Cir. 2017)). More importantly, the majority’s criticisms of our sister circuits’ positions are mistaken.

Consider the majority’s handling of the Eleventh 

Circuit’s decision in United States v. Reed. The defendant in 

Reed was convicted by a jury of possessing a firearm as a felon, 

and the Eleventh Circuit affirmed his conviction. 941 F.3d at 

1019. The Supreme Court vacated the Eleventh Circuit’s judgment of affirmance in light of Rehaif and remanded for reconsideration. Id. On remand, the Eleventh Circuit once again affirmed. Id. at 1022. It held that an appellate court may review 

the whole record when assessing a Rehaif error’s effect, or lack 

thereof, on the fairness, integrity, or public reputation of 

7 The majority sniffs that its decision is based upon “independent judgment” rather than simple nose-counting. Maj. Op. 49

n.28. That misses the point. Respectfully, my suggestion is that 

in exercising its independent judgment the majority has inadequately considered the extreme unlikelihood that so many of 

our judicial colleagues have somehow missed, or would casually ignore, the due process and Sixth Amendment concerns 

that the majority finds so troubling.
18

judicial proceedings. Id. at 1021–22. Because the defendant’s 

presentence report “stated that he had been incarcerated for 

lengthy terms before possessing the firearm,” id. at 1020, he 

could not prove that the error affected “the fairness, integrity, 

or public reputation of his trial,” id. at 1022. Accordingly, the 

Eleventh Circuit declined to set aside his conviction. Id. at 

1022.

The majority chides the Eleventh Circuit for relying on

United States v. Vonn, 535 U.S. 55 (2002), and concluding that 

a court need not confine itself to the trial record at prong four, 

because Vonn involved review of a guilty plea rather than a 

conviction after a jury trial. Maj. Op. 39–40. But the majority 

ignores the Eleventh Circuit’s discussion of United States v. 

Young. See Reed, 941 F.3d at 1021. In Young, the Supreme

Court denied plain-error relief where a prosecutor made improper comments during rebuttal because the remarks were 

made in response to defense counsel’s own improper remarks 

during summation and “were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of 

justice.” 470 U.S. at 16–19. The Court explained that it could 

not “properly evaluate [the defendant’s claims of error] except 

by viewing [them] against the entire record,” id. at 16 (emphasis added), because Rule 52(b) “authorizes the Courts of Appeals to correct only ‘particularly egregious errors,’” id. at 15

(quoting Frady, 456 U.S. at 163). 

The Supreme Court has never held that the “entire record” that Young instructs us to examine means just the trial record.8 That would make no sense: reasonable people will 

8

In Makiel v. Butler, 782 F.3d 882 (7th Cir. 2015), the Seventh 

Circuit discussed the difference between the “entire record” 

and the “trial record” in a case involving the materiality 
19

consider all relevant information in assessing whether our decision to affirm Nasir’s conviction works a miscarriage of justice that is inconsistent with fairness, integrity, and the good 

reputation of our judicial system. And unlike the majority, they 

will not arbitrarily ignore the indisputable fact of Nasir’s scienter and guilt. Maj. Op. 59–64. In deciding whether to exercise our discretion, we should consider reliable materials 

within and outside of the trial record just as thoughtful members of the public certainly will.

9

standard of the Compulsory Process Clause. Id. at 908–10. Although Makiel was not a plain-error case, the court’s discussion 

assists our consideration of the scope of discretionary review 

prescribed by Olano. Similar to our task at prong four, the court 

in Makiel had to evaluate the defendant’s argument in light of 

public interests such as “the integrity of the adversary process, 

the interest in the fair and efficient administration of justice, 

and the potential prejudice to the truth-determining function of 

the trial process.” Id. at 909. The Seventh Circuit concluded 

that when the Supreme Court instructs circuit courts to evaluate 

claims of trial error in the context of the “entire record,” that is 

broader than the “trial record.” Id.

9 Consider the prong-four significance of Nasir’s Old Chief

stipulation, which of course was part of the trial record. The 

majority suggests that it could never be even circumstantial evidence of his scienter, Maj. Op. 55–57, but that assertion is not 

compelled by Rehaif. And it wars against common sense and 

experience. As a strictly logical proposition, it is true that 

Nasir’s stipulation proved only that he knew of his felon status 

as of the date of the stipulation; it did not necessarily prove that 

he knew he was a felon when he was arrested with the gun. But

just as a factual statement can be strictly true and yet fraudulent 
20

The majority also assails the Second Circuit’s decision 

in Miller and the Seventh Circuit’s decision in Maez. Its criticism of the approach taken by those two circuits is similarly 

unpersuasive.

Miller involved a defendant whose presentence investigation report showed that he spent several years in prison 

prior to his firearm possession, rendering it obvious that he 

knew he was a felon at the time of possession. 954 F.3d at 560. 

The Second Circuit “ha[d] no doubt that, had the Rehaif issue 

been foreseen by the district court, [the defendant] would have 

stipulated to knowledge of his felon status to prevent the jury 

from hearing evidence of his actual sentence.” Id. at 560. So, 

the court concluded, the fairness, integrity, and public reputation of the judicial system would not be seriously affected by 

upholding the conviction; in fact, the defendant was so obviously guilty that vacating his conviction “would have that effect.” Id. at 559. In Maez, the Seventh Circuit largely adopted 

the Second Circuit approach, concluding that vacating the convictions of two defendants whose presentence reports indicated 

that they served more than one year in prison on prior felony 

because of a material omission, Nasir’s stipulation does not 

foreclose the possibility that he also understood that he was a 

felon every day after his knowing and voluntary guilty pleas in 

2000, 2001, and 2007. 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. Such an inference, though not logically required, would be patently sensible to many people. And surely, many will consider his stipulation in this light when evaluating our discretionary decision 

whether to notice the plain error created by Rehaif.
21

convictions would negatively affect the fairness, integrity, and 

public reputation of judicial proceedings. 960 F.3d at 964–66. 

The majority faults the Second and Seventh Circuits for

“treat[ing] judicial discretion as powerful enough to override 

the defendant’s right to put the government to its proof when it 

has charged him with a crime.” Maj. Op. 46–47. But Nasir has 

not been deprived of that right. He had the opportunity to insist 

that the government be required to prove that he knew he was 

a felon at the time of his firearm possession. He did not do so, 

instead agreeing that no such proof need be presented. As a 

direct result of that choice, the government did not introduce 

evidence as to Nasir’s knowledge of his status at the time of 

possession though such evidence was readily available. I do

not see why Nasir’s failure to object to the jury instruction and 

decision to instead avail himself of an Old Chief stipulation 

should continue to redound to his benefit now that we are exercising remedial discretion.

F. Nasir does not satisfy Olano’s step-four standard for error-correction

Our sister circuits’ approach does not “imply that relief 

on plain-error review is available only to the innocent.” Maj. 

Op. 47.10 If, for example, an error so corrupts a judicial 

10 Indeed, as the Seventh Circuit recognized, “defendants can 

sometimes show an effect on fairness or integrity without a 

claim of innocence.” Maez, 960 F.3d at 962. But “though a defendant’s likelihood of actual guilt or innocence does not necessarily control the third prong of plain-error review, it may 

play a role at prong four.” Id. That is because a court has “broad 

discretion under prong four to leave even plain errors 
22

proceeding as to make its verdict completely unreliable, no 

court would require a defendant to prove on appeal that he was 

actually innocent before vacating a conviction resulting from 

such a proceeding. See Medley, 972 F.3d at 424–25 (Quattlebaum, J., dissenting) (explaining that “central” to prong-four

analysis in a criminal case “is a determination of whether, 

based on the record in its entirety, the proceedings against the 

accused resulted in a fair and reliable determination of guilt” 

(internal quotation marks omitted) (quoting United States v. 

Ramirez-Castillo, 748 F.3d 205, 217 (4th Cir. 2014))). That is 

because the Third Branch would not want to put its imprimatur 

on a proceeding that makes a mockery of justice and reduces 

the system’s standing in the eyes of the public. But that is not 

a problem here. A simple, unobjected-to error in jury instructions, where the defendant’s conviction would have been certain had an objection been made at the proper time, does not 

cry out for an exercise of our discretion.

Remanding this case for retrial is unnecessarily burdensome and seriously undermines the fairness and public reputation of judicial proceedings. That broad inquiry is the standard 

governing our exercise of discretion. The majority compounds 

its error by explicitly limiting our prong-four discretion to 

Nasir’s trial, which, it insists, “is the only judicial proceeding 

at issue.” Maj. Op. 41 n.22. Not so. At prong four we ask 

whether refusing to cure the plain error would “seriously affect 

the fairness, integrity or public reputation of judicial proceedings” generally, not merely the particular defendant’s proceeding. Puckett, 556 U.S. at 135. As the Court elaborated in 

Puckett, we consider whether affirming Nasir’s conviction 

uncorrected where [it has] no doubt as to the ultimate result of 

further proceedings.” Id. at 963.
23

would call into question “the integrity of the system” and be so 

ludicrous as to “compromise the public reputation of judicial 

proceedings.” Id. at 142–43 (emphasis added); see also United 

States v. Edgell, 914 F.3d 281, 291 (4th Cir. 2019); United 

States v. Marroquin, 884 F.3d 302, 304 (5th Cir. 2018) (Smith, 

J., dissenting from denial of rehearing en banc); United States

v. Gonzalez-Huerta, 403 F.3d 727, 739 (10th Cir. 2005) (en 

banc); id. at 742 (Ebel, J., concurring); id. at 747 (Hartz, J., 

concurring). Because the majority asks the wrong prong-four 

question, it refuses to consider information that would suggest 

the correct answer.

Even if we improperly limited our prong-four inquiry to 

what the majority erroneously describes as “the actual field of 

play – the trial,” Maj. Op. 41 n.22, we should still affirm. When 

asked twice at oral argument how Nasir would attempt to disprove the knowledge-of-status element if the case were sent 

back for retrial, his counsel was unable to give a responsive 

answer. (That is not a criticism of counsel’s performance; there 

is no plausible explanation.) Instead, counsel allowed that 

Nasir would strategically use a remand to try to negotiate a better plea deal. In light of that revelation, I believe that thoughtful 

members of the public would view the majority’s judgment and 

Nasir’s windfall with bemused cynicism rather than reputationenhancing admiration.

G. We are bound by the Supreme Court’s plainerror precedent

The majority at least purports to apply Olano and its 

progeny. Judge Matey’s opinion strikes out in an entirely different direction, citing first principles. I endorse that approach 

in cases where lower court judges write on a blank slate, but in 

this appeal we are guided by ample Supreme Court precedent.
24

In any event, although we have not had the benefit of originalist briefing and argument, I doubt that Rule 52(b)’s remedial 

discretion as currently applied offends the Sixth Amendment 

and note that Justices Scalia and Thomas both joined Olano

without any reservation, originalist or otherwise. Cf. Concurring Op. 13–16 (criticizing Atkinson and Olano as allegedly 

unwarranted expansions of original plain-error doctrine).

Moreover, I fail to grasp how a purportedly originalist application of plain-error review can affirm the conviction of noncriminal conduct but disallows the conviction of conduct that 

was certainly criminal but not properly proven. Cf. United 

States v. Jabateh, 974 F.3d 281, 287 (3d Cir. 2020).

*****

The Supreme Court has disapproved “a reflexive inclination by appellate courts to reverse because of unpreserved 

error,” a tendency contrary to the “strictly circumscribed” 

appellate-court authority to remedy unpreserved error only 

where necessary due to exceptional circumstances. Puckett, 

556 U.S. at 134 (internal quotation marks omitted) (quoting 

United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005) 

(Boudin, C.J., concurring)). Yet the majority persists in the 

face of overwhelming, reliable information supporting Nasir’s 

conviction. Its error stems from a basic misunderstanding of 

the nature of plain-error review. I respectfully dissent from 

Section II.E of the majority opinion.