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 Pub lic Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Offi ce of the Federal Public Defender for the District of Colorado, Denver, Co lorado, appearing for Appellant. Ryan D. Tenney, Assistant United States Attorney (John W. Hu ber, United States Attorney, with him on the brief), Office of the United St ates 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 ap peals 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 Court2 documents and by failing to make case-specific findings regard ing 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 suppleme nt 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, Vo l. I, at 20–23. At his combined plea and sentencing hearing, th e 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 “conc erned about the [plea] supplement” and asked “for permission to file the plea ag reement without the [p lea] supplement. Id. at 43– 44. The district court respo nded, “We do file the suppleme nt 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 Distri ct of Utah local rule, which provides that “[a]ll plea agreements shall be accompan ied by a sealed document entitled ‘Plea Supplement,’” filed “electronically . . . under seal.” DUCrimR 11-1. The plea supplement describes the nature of the defe ndant’s cooperation with the government or lack thereof; thus, because Mr. Bacon’s pl ea agreement did not contain a substantial assistance clause or a cooper ation agreement, ROA, Vol. I, at 20–27, his plea supplement states that “there is no cooperation ag reement 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 so mething sealed inside your paperwork and the yard gets the paperwork and they see you’ve got a seal ed document, they th ink 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, st ating, “We’re trying to get uniformity among the districts so that everybo dy 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, followe d by five years of supervised release. Id. at 64. This five-year supervis ed 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, 20 18 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 par ties 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 file d . . . a sealed pleading which states that there was no coopera tion agreement in volved in the case. Mr. Bacon claims that a sealed documen t 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 re quest, arguing that it is the policy of the District of Utah to file a sealed plea supplement in ev ery 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 partie s 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 th e people in the prison, and it causes him a security problem . . . I’m not sure all the inmates in the prison know that a seal ed 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 wit hdrawn 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 supple ment filed under seal, ruling, in full:5 As to the issue of striking the sealed plea supplement, this has been a matter of study nationall y and by this Court, and we continue to study it at a nationa l 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 ha rm, to both defendants and witnesses, resulting from us e of court documents to id entify cooperators.” Fed. Judicial Ctr., Survey of Harm to Coop erators: 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 de fendant/offender as a cooperator,” id. at 13, and that “the presence of sealed documents a nd 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 Ca se Management Committee (CACM) provided interim guidance, recommending that all district co urts 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/file s/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 Comm ittee 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 ri sk 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 s eal or unseal documents.” 2 United States v. Pickard , 733 F.3d 1297, 1302 (10th Cir. 2013). The government c ontends 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 firs t time on appeal legal theories not raised before the district court, even wh en 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 defe ndant’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 consid er 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 th e district court as a motion to strike, see Supp. ROA, Vol. II, at 4–5, there is no di spute 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 regardi ng whether to seal or unseal documents”) (internal quotation marks omitted). Further, when ruling on the motion, the district court focused its analysis on whether th e 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 th e 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 dist rict 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 j udicial records” or conduct “the balancing test that flows from” that presum ption. Aplt. Br. at 20, 22, 26; see Aplt. Rep. Br. at 6 (acknowledging that Mr. Bac on “did not invoke the common la w right of public access in the district court”). Thus, he has forfeited th is argument. Nonetheless, we can review forfeited arguments for plain error where, lik e 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 th ere 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 qu estion” in two ways, id. at 20–21. First, he contends the district court erred by “fail[ing] to cons ider 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 base d 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 recogni zed 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 Ci r. 1997) (“It is clearly established that court documents are c overed by a common law right of access.”); see also United States v. Hickey , 767 F.2d 705, 706, 708 (10t h 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 di sclaimed any relianc e on a potential First Amendment right for purpos es 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) (“B ecause we conclude that Defendants can seek to have the DEA records unsealed under the common law, we have no occasion here to address whethe r they also have a First Amendment right to have the DEA file unsealed.”).9 omitted), there is a “str ong 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 distri ct court, in exercising its discretion [to seal or unseal judicial r ecords], must ‘weigh the intere sts of the public, which are presumptively paramount, against t hose 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 pres umption 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 c ourt already previously determined that those documents should be sealed.” Id. Therefore, the burden is on the government, as the party opposing disclosure of th e plea supplement, “to articul ate a sufficiently significant interest that will justify continuing to overri de 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 manne r in which it considered Mr. Bacon’s request to unseal the plea supplement in two ways. First, the district court “did not apply th e presumption that judicial records should be open to the public.” Id. (reversing the district cour t’s decision denying a motion to10 unseal). 4 The district court kept Mr. Bacon’s pl ea supplement filed under seal because “no decision ha[d] been made to change the [s ealing] policy or the [local] rule.” ROA, Vol. III, at 19. Therefore, rather than “r equiring the United States to articulate a significant government interest to justif y 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. 2 016) (“The district court’s ruling [denying the defendant’s request to un seal his plea agreement], based on a blanket policy, does not satisfy either the c onstitutional or common law standards.”). The district court also erre d by failing to support its se aling decision with casespecific findings. We have held that a di strict 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 pl ea 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 detail s 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 agr eements 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 stat e 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 genera l information that was not on the record and the District of Utah’s local rules. See ROA, Vol. III, at 18–19 (d iscussing “some compelling information” from a “presentation” and deny ing Mr. Bacon’s request to unseal the plea supplement because “no decisi on ha[d] been made to change the [sealing] policy or the [local] rule”). The district court’s genera lized sealing analysis does not satisfy the common law standard or provide us with an adequate foundation for appellate review. 6 The government contends, however, th at 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-s pecific 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 stat ed, “[L]est the common-law presumption of access be rendered a dead letter . . . courts cannot justify denying disclosure by endorsing . . . generalized governmental inte rests. They must analyze th e government’s interests in the context of the specific case . . . and explicitly undergird their conclusions with fact-specific analysis.” (vacating the distri ct court’s sealing or der and remanding for further proceedings because “[a] bsent a particularized analysis . . . a district court has no sound legal basis for ruli ng on the sealing question”).

6 For this reason, we cannot address Mr . Bacon’s alternativ e 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 e rred as a matter of law in the manner in which it decided the sealing question, it ne ed not reach this argument . . . .”).12 supplements, id. at 46, despite admitting that “some (o r even all) past common law public access decisions imposed a case-specific analysis requirement,” id. at 44. We reject this argument. “[W]e must fo llow Supreme Court and Tenth Circuit precedent,” United States v. Courtney , 816 F.3d 681, 686 (10t h 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 “t he details of [a defendant’s] plea bargain”). We also reject the government’s assertion th at the district court did not err because the District of Utah’s local rule “supplan ts 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 (10t h 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 quot ation 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 ha s 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 ru le did not abrogate th e 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 poin t 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 s ealing 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 re cords 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 deci ding whether to seal a judici al record “even where, as here, the district court alrea dy previously determined that [the] documents should be sealed.” Id. at 1302 (noting that “the party seek ing to keep record s sealed bears the burden of justifying that secrecy”). Pickard also made clear that the district cour t, “in exercising its discretion [to seal a judicial record], must ‘weigh the interests of the public, which are presumptively paramount, against those adva nced 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 circumstance s of the particular case”) (emphasis added). The district court plainly erred in keepin g Mr. Bacon’s plea supplement under seal by14 failing to consider the presumptive right of access and by failing to make case-specific findings on the record. The government argues, however, that M r. 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 ca nnot adopt a rule that automatically seals a particular kind of categorically sensitive info rmation.” Aple. Br. at 21. This argument misses the point. Mr. Bacon does not challenge “the facial valid ity 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” adop ting 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 conten ds that the district court could adopt DUCrimR 11-1 because the “government ha s 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 a ppeal, 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 90 2 (“we decline to undertake in the first instance a seali ng analysis to resolve the question”).15 More specifically, the government cont ends that Mr. Bacon has not shown obvious error for “his burden of proof and ca se-specific-analysis arguments.” Aple. Br. at 17–18. The government a ttempts to distinguish both Nixon and Pickard , arguing that

“ Nixon dealt with a district court’s decision to prohibit public acce ss to the Watergate tapes . . . while Pickard dealt with a district court’s decision to seal a confidential informant’s file pursuant to its ‘inherent su pervisory 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 decisi on 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 distri ct court’s ability to adopt (and enforce) a categorical rule that automatically se als 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 un der 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 “eve n in the absence of a statute or rule, courts themselves have created their own sea ling or redaction regimes for particular kinds of sensitive information.” Aple. Br. at 19 (n oting, for example, that a party seeking access to records of gra nd jury proceedings carries the burde n of establishing the need for disclosure). While that may be true for cer tain 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 argumen ts 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 th at, but for the error claimed, the result of the proceedi ng would have been different.’” Id. (quoting United States v. Andrews , 447 F.3d 806, 811 (10t h Cir. 2006)). To satis fy this burden, Mr. Bacon “must show a reasonable probability su fficient to undermin e confidence in the outcome at [his] [re]sentencing.” United States v. Yurek , 925 F.3d 423, 446 (10th Cir. 2019). “Confidence in the out come can be undermined even if [Mr. Bacon’s] showing would not satisfy the preponderan ce-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 reasonabl e probability that, but for the district court’s error, Mr. Bacon’s plea supplem ent would not have been filed under seal. Moreover, the district court did not conduc t any case-specific balancing to determine whether the government’s intere st “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) rath er than relying sole ly on the local rule,17 there is a reasonable probability that Mr. B acon’s plea supplement would not have been filed under seal.
D To satisfy the fourth prong of plain erro r, 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 overri ding 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 th e 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 Judi cial Independence , 53 V ILL

. L. R EV . 939, 940 (2008) (“Secret proceedings, including unwarranted or excessi ve sealing of court records, engender suspicion, mistrust and a lack of confidence in the judicial pr ocess . . . .”). We conclude that Mr. Bacon has satisfied th e 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.