PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL ALEXANDER BACON, 

 Defendant - Appellant. 

No. 18-4163 

_________________________________ 

Appeal from the United States District Court 

for the District of Utah 

(D.C. No. 2:14-CR-00563-DN-1)

_________________________________ 

Veronica S. Rossman, Assistant Federal Public Defender (Virginia L. Grady, Federal 

Public Defender, with her on the briefs), Office of the Federal Public Defender for the 

District of Colorado, Denver, Colorado, appearing for Appellant. 

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States 

Attorney, with him on the brief), Office of the United States Attorney for the District of 

Utah, Salt Lake City, Utah, appearing for Appellee. 

_________________________________ 

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

BRISCOE, Circuit Judge. 

_________________________________ 

 Defendant-Appellant Michael A. Bacon appeals the district court’s decision to 

keep the supplement to his plea agreement filed under seal. Mr. Bacon contends that the 

district court erred by failing to consider the common law right of access to court 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 21, 2020

Christopher M. Wolpert 

Clerk of Court
2 

documents and by failing to make case-specific findings regarding sealing on the record. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we vacate the district court’s 

decision to keep Mr. Bacon’s plea supplement filed under seal and remand for further 

proceedings. 

I 

 In 2015, Mr. Bacon pleaded guilty to two counts of bank robbery and one count of 

robbing a credit union, pursuant to a written plea agreement. ROA, Vol. I, at 20–23. At 

his combined plea and sentencing hearing, the district court asked Mr. Bacon if he had 

signed the documents relating to his plea agreement. Id. at 43. After responding that he 

had not, the district court directed Mr. Bacon to sign the documents. Id. Mr. Bacon’s 

counsel explained that Mr. Bacon was “concerned about the [plea] supplement” and 

asked “for permission to file the plea agreement without the [plea] supplement. Id. at 43–

44. The district court responded, “We do file the supplement under seal in every case, 

and we do that to protect the rare person who does cooperate.” Id. at 44. 

 The district court was referring to a District of Utah local rule, which provides that 

“[a]ll plea agreements shall be accompanied by a sealed document entitled ‘Plea 

Supplement,’” filed “electronically . . . under seal.” DUCrimR 11-1. The plea 

supplement describes the nature of the defendant’s cooperation with the government or 

lack thereof; thus, because Mr. Bacon’s plea agreement did not contain a substantial 

assistance clause or a cooperation agreement, ROA, Vol. I, at 20–27, his plea supplement 

states that “there is no cooperation agreement between the United States and the 

defendant.” Supp. ROA, Vol. I, at 4. 
3 

Mr. Bacon ultimately refused to sign his plea supplement, and his counsel signed 

it on his behalf. ROA, Vol. I, at 45. Mr. Bacon explained to the court that “[w]hen you 

go off to prison and you’ve got something sealed inside your paperwork and the yard gets 

the paperwork and they see you’ve got a sealed document, they think you cooperated, and 

they want to hurt you.” Id. at 44–45. The district court ordered the plea supplement filed 

under seal over Mr. Bacon’s objection, stating, “We’re trying to get uniformity among 

the districts so that everybody has a sealed supplement.” Id. at 45. Mr. Bacon’s plea 

supplement appears on the docket as follows: 

Id. at 6. 

Mr. Bacon was sentenced to 80 months’ imprisonment, followed by five years of 

supervised release. Id. at 64. This five-year supervised release term exceeded the 36-

month statutory maximum for his offenses, an issue Mr. Bacon raised in his habeas 

petition. See Bacon v. United States, No. 2:16-cv-00724-DN, 2018 WL 2709212, at *10 

(D. Utah June 5, 2018). The partial grant of Mr. Bacon’s habeas petition resulted in a 

resentencing hearing in 2018. 

At Mr. Bacon’s resentencing, the parties did not dispute that Mr. Bacon’s 

supervised release term should be reduced to 36 months. See ROA, Vol. III, at 14–16. 

Nonetheless, there was a dispute over the sealed plea supplement. In a pre-hearing filing, 

defense counsel explained, 
4 

Mr. Bacon . . . did not want filed . . . a sealed pleading which 

states that there was no cooperation agreement involved in the 

case. Mr. Bacon claims that a sealed document shown in the 

docket raises questions and inferences at a correctional 

facility, that there has actually been cooperation. Mr. Bacon 

requests that the Court strike that particular document from 

the docket as he never signed it. 

Supp. ROA, Vol. II, at 4–5. 

The government objected to Mr. Bacon’s request, arguing that it is the policy of 

the District of Utah to file a sealed plea supplement in every criminal case and that the 

policy is “actually for the defendant/prisoner’s benefit.” ROA, Vol. I, at 87. The 

government asked the district court to keep Mr. Bacon’s plea supplement filed under seal 

“as a matter of integrity to [the] local rules” and as “a matter of safety of cooperators.” 

Id. at 88. 

The court heard argument from the parties on this issue at the resentencing 

hearing. Defense counsel stated, 

Mr. Bacon has served time in the penitentiary . . . and it’s his 

experience that when you have a sealed pleading in your 

record, that becomes known to the people in the prison, and it 

causes him a security problem . . . I’m not sure all the inmates 

in the prison know that a sealed pleading is filed in every 

case, and . . . it doesn’t mean he’s cooperating. That’s why 

he doesn’t want that sealed pleading in this case, and he 

would like to have that withdrawn because it’s put him in 

danger. 

Id., Vol. III, at 14–15. Mr. Bacon addressed the court, himself, regarding the sealed plea 

supplement, stating, “If I don’t wan’t [sic] to place my life in jeopardy, I don’t see how 

the federal government can force me to do that.” Id. at 18. 

The district court ordered the plea supplement filed under seal, ruling, in full: 
5 

As to the issue of striking the sealed plea supplement, this has 

been a matter of study nationally and by this Court, and we 

continue to study it at a national level, and while there may be 

changes, it is the practice, in many, if not most, districts to 

file a plea supplement in every case. I recognize the problems 

that you have brought up, and there have been issues of 

inmate violence unfortunately. I attended a really good 

presentation on this, where we had someone who had actually 

interviewed prisoners about this, and there was some 

compelling information, but so far no decision has been made 

to change the policy or the rule and so I’m not going to strike 

the sealed supplement. 

Id. at 18–19.1

 

 

 1

 The district court was referring to a 2016 Federal Judicial Committee (FJC) 

study concluding that there is “a substantial amount of harm, to both defendants and 

witnesses, resulting from use of court documents to identify cooperators.” Fed. 

Judicial Ctr., Survey of Harm to Cooperators: Final Report (2016), at 31, available at 

https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report. The FJC 

found that “[t]he plea agreement or plea supplement was the document most 

frequently used to identify a defendant/offender as a cooperator,” id. at 13, and that 

“the presence of sealed documents and gaps in docket sequence numbers by 

themselves are considered enough by other inmates to identify cooperators and put 

them at risk of harm,” id. at 30–31. In light of this study, the Judicial Conference’s 

Court Administration and Case Management Committee (CACM) provided interim 

guidance, recommending that all district courts adopt a blanket approach where each 

defendant has a sealed plea supplement regardless of whether the defendant 

cooperated with the government. CACM, Interim Guidance for Cooperator 

Information (2016) (CACM Memo), at 245, available at 

https://www.uscourts.gov/sites/default/files/2016-09-criminal-agenda_book_0.pdf. 

The Criminal Rules Committee decided not to implement CACM’s guidance. Hon. 

Donald W. Molloy, Report of the Advisory Committee on the Criminal Rules (Dec. 8, 

2017), at 119, available at https://www.uscourts.gov/sites/default/files/2018-01-

standing-agenda-book.pdf. As a result, many districts do not require sealed plea 

supplements, leaving “a real risk that . . . measures to protect cooperators in one 

court might result in criminal dockets that indicate cooperation . . . when compared to 

those of another court.” CACM Memo at 247. 
6 

Mr. Bacon timely appealed, challenging the district court’s ruling keeping his plea 

supplement filed under seal. 

II 

Generally, “[w]e review for an abuse of discretion the district court’s decisions 

regarding whether to seal or unseal documents.”2

 United States v. Pickard, 733 F.3d 

1297, 1302 (10th Cir. 2013). The government contends that our review is for plain error 

because Mr. Bacon relies on a legal theory not raised below—specifically, “the common 

law right of public access.” Aple. Br. at 14. 

We agree with the government that our review is for plain error. This court has 

“repeatedly declined to allow parties to assert for the first time on appeal legal theories 

not raised before the district court, even when they fall under the same general rubric as 

an argument presented to the district court.” United States v. A.B., 529 F.3d 1275, 1279 

n.4 (10th Cir. 2008) (reviewing the defendant’s arguments under the plain error 

standard); see also United States v. Buonocore, 416 F.3d 1124, 1128 (10th Cir. 2005) 

(“[T]his court will not consider a theory on appeal not raised or ruled on below”); United 

States v. Anderson, 374 F.3d 955, 958 (10th Cir. 2004) (“This is not a novel concept. We 

have held . . . that a party may not raise on appeal specific theories he did not present 

 2

 While Mr. Bacon labeled his motion at the district court as a motion to strike, 

see Supp. ROA, Vol. II, at 4–5, there is no dispute that, in substance, he asked the 

court to unseal the plea supplement. Compare Aplt. Rep. Br. at 2 (“[Mr. Bacon] 

asked the court to unseal the plea supplement.”), with Aple. Br. at 9 (stating our 

standard of review for “decisions regarding whether to seal or unseal documents”) 

(internal quotation marks omitted). Further, when ruling on the motion, the district 

court focused its analysis on whether the plea supplement should remain sealed. 
7 

before the district judge.”). Mr. Bacon objected to the district court’s decision to keep his 

plea supplement as a sealed document on the ground that the presence of a sealed plea 

supplement in his court records would endanger him. See ROA, Vol. III, at 14–15, 18. 

On appeal, however, he argues that “the district court erred in the manner in which it 

decided the sealing question,” contending that the district court did not “consider the 

presumptive [common law] right of access to judicial records” or conduct “the balancing 

test that flows from” that presumption. Aplt. Br. at 20, 22, 26; see Aplt. Rep. Br. at 6 

(acknowledging that Mr. Bacon “did not invoke the common law right of public access in 

the district court”). Thus, he has forfeited this argument. Nonetheless, we can review 

forfeited arguments for plain error where, like here, the appellant asks for plain error 

review and puts forth arguments concerning its application. See United States v. Zander, 

794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (“We hold that Defendant adequately addressed 

the issue of plain error review in his reply to the government’s brief, after arguing in his 

opening brief that his objections below were sufficiently raised to be preserved for review 

on appeal.”). 

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects 

substantial rights, and which (4) seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 

(10th Cir. 2005) (quotation marks omitted). 
8 

III 

A 

Mr. Bacon relies on the “common-law public right of access to judicial records,” 

Aplt. Br. at 23, to argue that the district court plainly “erred in the manner in which it 

decided the sealing question” in two ways, id. at 20–21. First, he contends the district 

court erred by “fail[ing] to consider the presumptive right of access to judicial records in 

reaching its sealing conclusion.” Id. at 22. Next, he argues that the district court erred 

because its “sealing conclusion is not based on the facts and circumstances of Mr. 

Bacon’s case”—an analysis he asserts is “compelled by the common law presumption of 

access.” Id. at 28–29. 

 “Courts have long recognized a common-law right of access to judicial records.” 

Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (quotation marks 

omitted); see United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly 

established that court documents are covered by a common law right of access.”); see 

also United States v. Hickey, 767 F.2d 705, 706, 708 (10th Cir. 1985) (applying the 

common law right of access to “the details of [a defendant’s] plea bargain”).3

 Although 

this common law “right is not absolute,” Colony Ins., 698 F.3d at 1241 (quotation marks 

 3

 Mr. Bacon only asserts that he has a right to have his plea supplement 

unsealed under the common law. He has disclaimed any reliance on a potential First 

Amendment right for purposes of this appeal. See Aplt. Br. at 23 n.16. As such, we 

have no occasion to address whether such a constitutional right exists. See United 

States v. Pickard, 733 F.3d 1297, 1302 n.4 (10th Cir. 2013) (“Because we conclude 

that Defendants can seek to have the DEA records unsealed under the common law, 

we have no occasion here to address whether they also have a First Amendment right 

to have the DEA file unsealed.”). 
9 

omitted), there is a “strong presumption in favor of public access,” Mann v. Boatright, 

477 F.3d 1140, 1149 (10th Cir. 2007). This strong presumption of openness can “be 

overcome where countervailing interests heavily outweigh the public interests in access” 

to the judicial record. Colony Ins., 698 F.3d at 1241 (internal quotation marks omitted); 

see McVeigh, 119 F.3d at 811. “Therefore, the district court, in exercising its discretion 

[to seal or unseal judicial records], must ‘weigh the interests of the public, which are 

presumptively paramount, against those advanced by the parties.’” United States v. 

Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (quoting Helm v. Kansas, 656 F.3d 1277, 

1292 (10th Cir. 2011)). 

“Consistent with this presumption that judicial records should be open to the 

public, the party seeking to keep records sealed bears the burden of justifying that 

secrecy, even where, as here, the district court already previously determined that those 

documents should be sealed.” Id. Therefore, the burden is on the government, as the 

party opposing disclosure of the plea supplement, “to articulate a sufficiently significant 

interest that will justify continuing to override the presumption of public access” to the 

plea supplement at issue here. Id. at 1303. Applying those legal principles here, we 

conclude the district court erred in the manner in which it considered Mr. Bacon’s request 

to unseal the plea supplement in two ways.

First, the district court “did not apply the presumption that judicial records should 

be open to the public.” Id. (reversing the district court’s decision denying a motion to 
10 

unseal).4

 The district court kept Mr. Bacon’s plea supplement filed under seal because 

“no decision ha[d] been made to change the [sealing] policy or the [local] rule.” ROA, 

Vol. III, at 19. Therefore, rather than “requiring the United States to articulate a 

significant government interest to justify keeping the [plea supplement] sealed,” Pickard, 

733 F.3d at 1303, the district court relied on a local rule mandating sealed supplements in 

every case. This ruling does not satisfy the common law standard. See id.; see also 

United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016) (“The district court’s 

ruling [denying the defendant’s request to unseal his plea agreement], based on a blanket 

policy, does not satisfy either the constitutional or common law standards.”). 

The district court also erred by failing to support its sealing decision with casespecific findings. We have held that a district court, in deciding whether specific 

documents should be sealed, “must consider the relevant facts and circumstances of the 

particular case and weigh the relative interests of the parties.” Hickey, 767 F.2d at 708 

(emphasis added) (addressing whether the court erred in “foreclosing access to the details 

of Mr. Hickey’s plea bargain”); see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 

(1978) (“[T]he decision as to access is one best left to the sound discretion of the trial 

 4

 There is no dispute that Mr. Bacon’s plea supplement is a judicial record. 

Compare Aplt. Br. at 24 (“The document at issue here – the supplement to Mr. 

Bacon’s plea agreement – is a judicial record.”), with Aple. Br. at 25 (noting that 

DUCrimR 11-1, which requires sealing of plea supplements, “governs who has 

access to the records of Utah’s courts”) (emphasis added). As noted, this court held 

that the common law right of access applies to “the details of [a defendant’s] plea 

bargain” in Hickey, 767 F.2d at 706, 708. See also United States v. DeJournett, 817 

F.3d 479, 485 (6th Cir. 2016) (“plea agreements are the quintessential judicial 

record”); In re Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008) (plea 

agreement’s cooperation addendum is a judicial record). 
11 

court, a discretion to be exercised in light of the relevant facts and circumstances of the 

particular case.”) (emphasis added); see also DeJournett, 817 F.3d at 485 (“remand[ing] 

the case so that the district court may state its case-specific [sealing] findings on the 

record”).5

 Here, the district court did not weigh the interests of the parties or provide any 

case-specific explanation for its decision to keep Mr. Bacon’s plea supplement under 

seal. Instead, it relied on general information that was not on the record and the District 

of Utah’s local rules. See ROA, Vol. III, at 18–19 (discussing “some compelling 

information” from a “presentation” and denying Mr. Bacon’s request to unseal the plea 

supplement because “no decision ha[d] been made to change the [sealing] policy or the 

[local] rule”). The district court’s generalized sealing analysis does not satisfy the 

common law standard or provide us with an adequate foundation for appellate review.6

 The government contends, however, that we can “adjust [the] ‘common law 

doctrine[],’” Aple. Br. at 44, (quoting Williams v. Trammell, 782 F.3d 1184, 1195 (10th 

Cir. 2015)), so that the “case-specific analysis requirement [does not] apply to” plea 

 5

 In an unpublished case, United States v. Apperson, 642 F. App’x 892, 900 

(10th Cir. 2016), we stated, “[L]est the common-law presumption of access be 

rendered a dead letter . . . courts cannot justify denying disclosure by endorsing . . . 

generalized governmental interests. They must analyze the government’s interests in 

the context of the specific case . . . and explicitly undergird their conclusions with 

fact-specific analysis.” (vacating the district court’s sealing order and remanding for 

further proceedings because “[a]bsent a particularized analysis . . . a district court has 

no sound legal basis for ruling on the sealing question”). 

6

 For this reason, we cannot address Mr. Bacon’s alternative argument that the 

government did not satisfy its burden of proof. See Aplt. Br. at 31 n.19 (“If this 

Court determines that the district court erred as a matter of law in the manner in 

which it decided the sealing question, it need not reach this argument . . . .”). 
12 

supplements, id. at 46, despite admitting that “some (or even all) past common law public 

access decisions imposed a case-specific analysis requirement,” id. at 44. We reject this 

argument. “[W]e must follow Supreme Court and Tenth Circuit precedent,” United 

States v. Courtney, 816 F.3d 681, 686 (10th Cir. 2016), and our caselaw has not provided 

for such an exception. See Hickey, 767 F.2d at 706, 708 (holding that the “common law 

right . . . to inspect and copy judicial records” applies to “the details of [a defendant’s] 

plea bargain”). 

We also reject the government’s assertion that the district court did not err because 

the District of Utah’s local rule “supplants any conflicting common law right of public 

access.” Aple. Br. at 21. According to the government, “the common law can be 

supplanted by statute or rule” when “the statute or rule ‘speak[s] directly to the question 

addressed by the common law.’” Id. at 23 (emphasis added) (quoting United States v. 

Burkholder, 816 F.3d 607, 618 (10th Cir. 2016)). Reliance on Burkholder is misplaced. 

Burkholder held that “to abrogate a common-law principle, the statute must speak 

directly to the question addressed by the common law.” 816 F.3d at 618 (emphasis 

added) (internal quotation marks omitted). Burkholder did not say that a rule, 

promulgated not by Congress but by a district court, could abrogate the common law. 

And the government admits that “Congress has not passed a law specifically addressing 

whether the public has a right of access to cooperation agreements.” Aple. Br. at 24. 

Accordingly, the District of Utah’s local rule did not abrogate the common law right of 

access to judicial records. 
13 

B 

We next consider whether the district court’s errors were plain. An error is plain 

“when it is contrary to well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309 

(10th Cir. 2000). “For us to characterize a proposition of law as well-settled, we 

normally require precedent directly [o]n point from the Supreme Court or our circuit or a 

consensus in the other circuits.” United States v. Smith, 815 F.3d 671, 675 (10th Cir. 

2016). We agree with Mr. Bacon that the district court’s errors in this case were plain. 

This court specifically addressed the issue of a district court’s failure to consider 

the presumption of access when sealing a judicial record in Pickard. In Pickard, we 

stated that “the district court erred in the manner” in which it decided the sealing question 

because it “did not apply the presumption that judicial records should be open to the 

public.” 733 F.3d at 1303. Pickard made clear that a district court must consider the 

presumption of openness in deciding whether to seal a judicial record “even where, as 

here, the district court already previously determined that [the] documents should be 

sealed.” Id. at 1302 (noting that “the party seeking to keep records sealed bears the 

burden of justifying that secrecy”). 

Pickard also made clear that the district court, “in exercising its discretion [to seal 

a judicial record], must ‘weigh the interests of the public, which are presumptively 

paramount, against those advanced by the parties.’” Id. (emphasis added) (quoting Helm,

656 F.3d at 1292); see also Nixon, 435 U.S. at 599 (discretion to seal is “to be exercised

in light of the relevant facts and circumstances of the particular case”) (emphasis added). 

The district court plainly erred in keeping Mr. Bacon’s plea supplement under seal by 
14 

failing to consider the presumptive right of access and by failing to make case-specific 

findings on the record. 

The government argues, however, that Mr. Bacon’s claim “fails for lack of 

obvious error” because Mr. Bacon “points to no Supreme Court or published Tenth 

Circuit decision that holds that a district cannot adopt a rule that automatically seals a 

particular kind of categorically sensitive information.” Aple. Br. at 21. This argument 

misses the point. Mr. Bacon does not challenge “the facial validity of the local rule or the 

District of Utah’s authority to adopt it.” Aplt. Rep. Br. at 4. Rather, Mr. Bacon 

challenges the district court’s application of the local rule in this case as inconsistent with 

the legal standards for sealing judicial documents. See id.; see Aplt. Br. at 26 (relying on 

United States v. Doe, 870 F.3d 991, 1002 (9th Cir. 2017), which held that “nothing in our 

precedent prevents district courts from” adopting the practice of requiring a sealed plea 

supplement in every case “as long as district courts decide motions to seal or redact on a 

case-by-case basis”).7

 7

 In a similar vein, the government contends that the district court could adopt 

DUCrimR 11-1 because the “government has a compelling interest in protecting 

cooperators,” which it argues is “sufficient to overcome the presumption of openness and 

satisfy the burden of proof.” Aple. Br. at 27. But again, the District of Utah’s authority 

to adopt a local rule is not at issue in this case. To the extent the government is 

attempting to satisfy its burden of proof on appeal, it cannot do so. The “analysis of the 

question of limiting access is necessarily fact-bound,” Hickey, 767 F.2d at 708, and “an 

appellate court is not a fact-finding body,” United States v. Castellanos-Barba, 648 F.3d 

1130, 1133 (10th Cir. 2011). See Apperson, 642 F. App’x at 902 (“we decline to 

undertake in the first instance a sealing analysis to resolve the question”). 
15 

More specifically, the government contends that Mr. Bacon has not shown 

obvious error for “his burden of proof and case-specific-analysis arguments.” Aple. Br. 

at 17–18. The government attempts to distinguish both Nixon and Pickard, arguing that 

“Nixon dealt with a district court’s decision to prohibit public access to the Watergate 

tapes . . . while Pickard dealt with a district court’s decision to seal a confidential 

informant’s file pursuant to its ‘inherent supervisory authority over its own files.’” Id. at 

18 (quoting Pickard, 733 F.3d at 1300). According to the government, Mr. Bacon’s case 

is different because he “is not challenging a district court’s decision to seal information 

that was based on a case-specific reason or derived from the court’s common law 

authority. Instead, he’s challenging a district court’s ability to adopt (and enforce) a 

categorical rule that automatically seals a certain kind of information.” Id. The 

government’s argument again misses the point. Mr. Bacon is challenging the district 

court’s decision to keep a specific document under seal, not its authority to enact a local 

rule. Moreover, the district court’s failure to articulate case-specific reasons for its 

sealing decision is, in part, why Mr. Bacon seeks remand. 

The government also points out that “even in the absence of a statute or rule, 

courts themselves have created their own sealing or redaction regimes for particular kinds 

of sensitive information.” Aple. Br. at 19 (noting, for example, that a party seeking 

access to records of grand jury proceedings carries the burden of establishing the need for 

disclosure). While that may be true for certain kinds of documents, we have no such 

regime for plea agreements. To the contrary, we have held that the common law right of 

access applies to “the details of [a defendant’s] plea bargain.” Hickey, 767 F.2d at 706, 
16 

708. The government’s arguments regarding the plainness of the district court’s errors 

are unavailing. 

C 

The third prong of plain error concerns whether the error affects the defendant’s 

“substantial rights.” United States v. Hasan, 526 F.3d 653, 664 (10th Cir. 2008). In this 

analysis, “we ask only whether there is ‘a reasonable probability that, but for the error 

claimed, the result of the proceeding would have been different.’” Id. (quoting United 

States v. Andrews, 447 F.3d 806, 811 (10th Cir. 2006)). To satisfy this burden, Mr. 

Bacon “must show a reasonable probability sufficient to undermine confidence in the 

outcome at [his] [re]sentencing.” United States v. Yurek, 925 F.3d 423, 446 (10th Cir. 

2019). “Confidence in the outcome can be undermined even if [Mr. Bacon’s] showing 

would not satisfy the preponderance-of-the-evidence standard.” Id. 

Mr. Bacon has satisfied the third prong of plain error. A presumption of openness 

must be overcome for a judicial record to remain under seal. See Pickard, 733 F.3d at 

1302. The record demonstrates that the district court did not consider this presumption of 

access to judicial records. As such, there is a reasonable probability that, but for the 

district court’s error, Mr. Bacon’s plea supplement would not have been filed under seal. 

Moreover, the district court did not conduct any case-specific balancing to determine 

whether the government’s interest “heavily outweigh[ed]” the public interest in access. 

Id. (quotation marks omitted). Had the district court considered the government’s interest 

in the context of the specific case (including the undisputed evidence that Mr. Bacon was 

endangered by the sealed plea supplement) rather than relying solely on the local rule, 
17 

there is a reasonable probability that Mr. Bacon’s plea supplement would not have been 

filed under seal. 

D 

 To satisfy the fourth prong of plain error, Mr. Bacon must show that the district 

court’s error “seriously affects the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1144 (10th Cir. 

2017). Mr. Bacon has made this showing. 

 We have held that the common law right of access to judicial records “is an 

important aspect of the overriding concern with preserving the integrity of the law 

enforcement and judicial processes.” Hickey, 767 F.2d at 708 (citing United States v. 

Hubbard, 650 F.2d 293, 315 (D.C. Cir. 1980)). The “common law right is not some 

arcane relic of ancient English law. To the contrary, the right is fundamental to the 

democratic state.” Hubbard, 650 F.2d at 315 n.79 (quoting United States v. Mitchell, 551 

F.2d 1252, 1258 (D.C. Cir. 1976)); see Hon. T. S. Ellis, III, Sealing, Judicial 

Transparency and Judicial Independence, 53 VILL. L. REV. 939, 940 (2008) (“Secret 

proceedings, including unwarranted or excessive sealing of court records, engender 

suspicion, mistrust and a lack of confidence in the judicial process . . . .”). We conclude 

that Mr. Bacon has satisfied the fourth prong of plain error. 

IV 

 For the foregoing reasons, we VACATE the district court’s decision to keep Mr. 

Bacon’s plea supplement filed under seal and REMAND for further proceedings.