PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 23-2125

_______________________

UNITED STATES OF AMERICA

v.

TAHJAIR DORSEY, 

 Appellant

_______________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

District Court No. 4-22-cr-00056-001

District Judge: Honorable Matthew W. Brann

__________________________

Argued April 18, 2024

Before: HARDIMAN, PHIPPS, and SMITH, Circuit Judges

(Filed: June 24, 2024)

Jason F. Ullman [ARGUED]

Office of Federal Public Defender
2

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Patrick J. Bannon 

Office of United States Attorney

235 N Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

William Glaser [ARGUED]

United States Department of Justice

Criminal Division

Room 1264

950 Pennsylvania Avenue NW

Washington, DC 20530

Carlo D. Marchioli 

Office of United States Attorney

Middle District of Pennsylvania

Sylvia H. Rambo United States Courthouse

1501 N 6th Street, 2nd Floor

P.O. Box 202

Harrisburg, PA 17102

Counsel for Appellee

_____________________

OPINION

_____________________
3

SMITH, Circuit Judge.

Tahjair Dorsey appeals his conviction for possession of 

a firearm by a convicted felon pursuant to 18 U.S.C. 

§ 922(g)(1). He argues that § 922(g)(1) is unconstitutional as 

applied to him under the Second Amendment. Yet Dorsey did 

not raise an objection on Second Amendment grounds at any 

stage of the District Court proceedings. We therefore review 

for plain error, and because Dorsey has not shown that any 

error here was plain, we will affirm. 

I.

In September 2020, Dorsey pleaded guilty to carrying a 

firearm without a license in violation of 18 Pa. Cons. Stat. 

§ 6106(a)(1). The firearm, a Glock 19 9mm handgun with a 

fully loaded, extended magazine holding 30 rounds, had been 

stolen from someone in Georgia. Under Pennsylvania law, a 

violation of § 6106(a)(1) is a felony conviction punishable by 

up to seven years’ imprisonment. 18 Pa. Cons. Stat. § 1103(3). 

Dorsey was sentenced to serve between six and twenty-three 

and a half months in prison and was paroled on June 1, 2021.1

In August 2021, members of the Lycoming County 

Narcotics Enforcement Unit and agents from the Bureau of 

Alcohol, Tobacco, Firearms, and Explosives began to 

investigate suspected gang activity in Williamsport, 

Pennsylvania. On August 30, 2021, agents observed Dorsey 

and another individual leaving a residence which was being 

monitored as a part of that investigation. The pair then entered 

a vehicle. When officers stopped the vehicle, Dorsey fled on 

foot. He was soon apprehended and officers recovered a Smith 

1 After his arrest for the instant offense in August 2021, the 

state trial court revoked his parole. 
4

& Wesson 9mm handgun nearby. The handgun, which had 

been stolen from someone in North Carolina, resembled a 

handgun that Dorsey had been depicted holding in a post on 

social media. Subsequent testing revealed that Dorsey’s DNA 

was on the handgun. 

On February 10, 2022, a federal grand jury returned a 

one-count indictment against Dorsey charging him as a felon 

in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

As set forth below, our decision in Range v. Attorney General, 

69 F.4th 96 (3d Cir. 2023) (en banc) controls the outcome of 

this case. A petition for rehearing en banc in Range was granted 

on January 6, 2023. A full month after that petition was 

granted, on February 7, 2023, Dorsey pleaded guilty pursuant 

to a written plea agreement. On June 6, 2023, we issued our en 

banc decision in Range. Id. at 96. The very next day, the 

District Court sentenced Dorsey to time served and three years 

of supervised release.2 At no time, from his indictment to his 

sentencing—a period just shy of 16 months—did Dorsey raise 

an objection to the constitutionality of § 922(g)(1). Dorsey 

timely appealed.

II.

The District Court had jurisdiction pursuant to 18 

U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. 

§ 1291. Because Dorsey did not raise his Second Amendment 

challenge before the District Court, we review for plain error

pursuant to Federal Rule of Criminal Procedure 52(b). 

2 Although Dorsey’s guideline range was 15-21 months, at the 

time of sentencing he had already been incarcerated for 21 

months and 8 days. 
5

To prevail under the plain-error framework, an 

appellant must satisfy the four-prong test set forth in United 

States v. Olano, 507 U.S. 725, 732 (1993). The Olano test 

requires an appellant to show (1) a legal error (2) that is plain 

and (3) that has affected his substantial rights. Id. at 732-33; 

see also Puckett v. United States, 556 U.S. 129, 135 (2009). If 

an appellant satisfies the first three Olano prongs, the court has 

discretion to correct the error if (4) it seriously affects the 

fairness, integrity, or reputation of judicial proceedings. Olano, 

507 U.S. at 732.

A legal error is a “[d]eviation from a legal rule” that has 

not been waived. Id. at 732-33.3 An error is “plain” if it is “clear 

or obvious, rather than subject to reasonable dispute.” Puckett, 

556 U.S. at 135 (citation omitted). In “most cases,” Olano’s 

third prong, requiring an appellant to show that the error 

affected his substantial rights, “means that the error must have

been prejudicial: It must have affected the outcome of the 

3 The Olano Court began by noting that rights, constitutional 

or otherwise, can be forfeited by a failure to timely raise the 

right before the judge handling a case. 507 U.S. at 731. Thus,

Rule 52(b) “provides a court of appeals a limited power to 

correct errors that were forfeited because not timely raised in 

district court.” Id. (emphasis added); see also Hamer v. 

Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 n.1 (2017) 

(“The terms waiver and forfeiture—though often used 

interchangeably by jurists and litigants—are not synonymous. 

Forfeiture is the failure to make the timely assertion of a right; 

waiver is the intentional relinquishment or abandonment of a 

known right.”) (cleaned up). 
6

district court proceedings.” Olano, 507 U.S. at 734.4 Our 

inquiry at the fourth prong of the Olano test, into the influence

of the error on the fairness, integrity, or reputation of judicial 

proceedings, is “case[] specific and fact[] intensive.” Puckett, 

556 U.S. at 142.

“Meeting all four prongs” of the Olano test “is difficult, 

as it should be.” Puckett, 556 U.S. at 135 (cleaned up). At the 

same time, even though “Rule 52(b) is permissive, not 

mandatory, it is well established that courts should correct a 

forfeited plain error that affects substantial rights” if the fourth 

prong of Olano is satisfied. Rosales-Mireles v. United States, 

585 U.S. 129, 137 (2018) (cleaned up) (emphasis added).

Yet courts must still bear in mind that the Supreme 

Court has “repeatedly cautioned” against any “‘unwarranted 

extension’ of the authority granted by Rule 52(b),” noting that 

the Rule “strikes” a “careful balance . . . between judicial 

efficiency and the redress of injustice.” Puckett, 556 U.S. at

135 (quoting United States v. Young, 470 U.S. 1, 15 (1985)). 

And though it is not entirely uncommon for a court to 

4 There is also a “limited class” of “structural errors,” Johnson 

v. United States, 520 U.S. 461, 468-69 (1997), that “can be 

corrected regardless of their effect on the outcome,” United 

States v. Cotton, 535 U.S. 625, 632 (2002) (quoting Olano, 507 

U.S. at 735). “Structural errors are a very limited class of errors 

that affect the framework within which the trial proceeds such 

that it is often difficult to assess the effect of the error.” United 

States v. Marcus, 560 U.S. 258, 263 (2010) (cleaned up and 

internal citations omitted). The Supreme Court has found 

structural error in cases involving, inter alia, total deprivation 

of trial counsel, lack of an impartial trial judge, and violation 

of the right to a public trial. Id. (collecting cases).
7

determine, on plain error-review, that a constitutional error 

requiring correction has occurred,

5 we must approach 

constitutional challenges to statutes with particular care.

6

5 See, e.g., United States v. Woods, 14 F.4th 544, 559-60 (6th 

Cir. 2021) (convictions for both attempted murder and assault 

with a dangerous weapon, under Violent Crimes in Aid of 

Racketeering Act, based on same shooting at same victim at 

same moment violated Double Jeopardy clause and was plain 

error); United States v. Morrissey, 895 F.3d 541, 547-49 (8th 

Cir. 2018) (failure of district court to instruct the jury that it 

could not convict defendant for both possession and receipt of 

child pornography based on the same facts violated Double 

Jeopardy clause and was plain error); United States v. Suarez,

879 F.3d 626, 635-38 (5th Cir. 2018) (imposition of ten-year 

mandatory minimum sentence when fact in issue not submitted 

to a jury and found beyond a reasonable doubt violated 

defendant’s Sixth Amendment rights and was plain error); 

United States v. Cesare, 581 F.3d 206, 207 (3d Cir. 2009) 

(entry of dual convictions for bank robbery and armed bank 

robbery arising from the same offense violated Double 

Jeopardy clause and was plain error); United States v. Bruno, 

383 F.3d 65, 78, 81 (2d Cir. 2004) (admission of hearsay 

testimony which violated the Confrontation Clause was plain 

error).

6

In Government of Virgin Islands v. Vanterpool, 767 F.3d 157 

(3d Cir. 2014), we denied a First Amendment challenge to a 

Virgin Islands statute, noting that, although we had not 

“expressly commented” on the issue, our sister circuits had 

regularly “denied relief when an appellant . . . raised a 

constitutional challenge to a statute for the first time on 

appeal.” Id. at 162.
8

Federal statutes are, after all, presumed to be constitutional.

Reno v. Condon, 528 U.S. 141, 148 (2000).

III.

Dorsey has not shown plain error because he cannot 

satisfy the second prong of Olano. That is, even if Dorsey’s 

conviction can be said to have violated the Second 

Amendment, any such error here was not plain. 

This Court’s en banc decision in Range, as noted above,

controls the outcome of this case. Dorsey argues that the 

unambiguous rule announced by Range is that § 922(g)(1) 

cannot be constitutionally applied to an individual who has a 

single, non-violent felony conviction regardless of the nature 

and timing of the prior offense and the defendant’s parole 

status at the time of the offense conduct. That argument 

overstates the breadth of our holding. Range held only that 

disarming an individual with a single, almost-thirty-year-old 

criminal conviction for food stamp fraud was not consistent 

with the Second Amendment. See 69 F.4th at 98-99, 106. 

Because Dorsey cannot show that it is beyond dispute that he 

is similarly situated to Range for Second Amendment 

purposes, any Second Amendment error here was not plain.

A.

To repeat: the second prong of the Olano test requires 

us to determine whether an error is “plain—that is to say, clear 

or obvious.” United States v. Aguirre-Miron, 988 F.3d 683, 

688 (3d Cir. 2021) (quoting Rosales-Mireles, 585 U.S. at 134). 

An error is “clear or obvious” when the underlying legal 

proposition is not “subject to reasonable dispute.” Puckett, 556 
9

U.S. at 135. Whether an error is plain must be evaluated based 

on the state of the law while the case under review is on appeal. 

United States v. Henderson, 64 F.4th 111, 120 (3d Cir. 2023).

The parties agree that two cases govern the outcome of 

this appeal: New York State Rifle & Pistol Ass’n v. Bruen, 597 

U.S. 1 (2022), and Range v. Attorney General, 69 F.4th 96 (3d 

Cir. 2023) (en banc).7 Bruen represented a sea-change in 

Second Amendment jurisprudence. In Bruen, the Supreme 

Court rejected means-end scrutiny in the Second Amendment 

context and articulated a new, two-step analytical approach for 

courts confronting such challenges. See Bruen, 597 U.S. at 22-

23; Lara v. Comm’r Pa. State Police, 91 F.4th 122, 129 (3d 

Cir. 2024).

Under Bruen’s first step, a court must determine 

whether “the Second Amendment’s plain text covers an 

individual’s conduct.” Bruen, 597 U.S. at 17. If the court 

concludes that the challenger is among “the people” who have 

7 Dorsey’s counsel also suggested at oral argument that the 

Court should look to then-Judge Barrett’s dissenting opinion in 

Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., 

dissenting). Yet that out-of-circuit case predates Bruen and is 

only a dissent. It can hardly be relied upon to demonstrate that

the District Court’s purported error was obvious.

Moreover, though Dorsey’s counsel referenced both Binderup 

v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), 

and Judge Hardiman’s concurrence in that case, Binderup was 

abrogated by Bruen. Range, 69 F.4th at 100-01. Thus, neither 

the majority opinion nor Judge Hardiman’s concurrence can be 

relied upon to support a conclusion that plain error occurred. 
10

Second Amendment rights and the text of the Second 

Amendment applies to the conduct at issue, the Constitution 

presumptively protects that conduct. See id.; Lara, 91 F.4th at 

129; Range, 69 F.4th at 101-03. 

At Bruen’s second step, the court must determine 

whether the restriction in question “is consistent with the 

Nation’s historical tradition of firearm regulation.” Bruen, 597 

U.S. at 24. The Government “must affirmatively prove that its 

firearms regulation is part of the historical tradition that 

delimits the outer bounds of the right to keep and bear arms.” 

Id. at 19. “Historical tradition can be established by analogical 

reasoning, which ‘requires only that the government identify a 

well-established and representative historical analogue, not a 

historical twin.’” Range, 69 F.4th at 103 (quoting id. at 30).

Beyond setting forth the proper analytical framework 

for evaluating Second Amendment objections, Bruen tells us 

little about how to evaluate Dorsey’s challenge. Bruen

involved a state law requiring applicants for unrestricted 

concealed-carry licenses to demonstrate a special need for selfdefense. 597 U.S. at 8-13. Thus, Bruen’s step-two analysis 

focused on whether the Government’s proffered historical 

analogues could support restrictions on public carry. See id. at 

39-70. Bruen said nothing about who may be disarmed and for 

how long that disarmament may last. See id. at 72 (Alito, J., 

concurring) (“Our holding decides nothing about who may 

lawfully possess a firearm.”). 

Thus, Bruen decided a “where” question rather than a 

“who” question. See Range, 69 F.4th at 100. In Range, this 

court was required to adjudicate a “who” question. The issue 

in Range was whether § 922(g)(1) could constitutionally be 

applied to an individual with a single, nearly thirty-year-old

criminal conviction for making a false statement to obtain food 
11

stamps in violation of 62 Pa. Stat. Ann. § 481(a). Id. at 98. We 

held that it could not. Id. at 106. 

Applying the Bruen standard, we first concluded that 

Range was among “the people” who have Second Amendment 

rights, despite his prior conviction, and that Range’s request 

“to possess a rifle to hunt and a shotgun to defend himself at 

home [] tracks the constitutional right as defined by Heller.” 

Id. at 101-03 (citing District of Columbia v. Heller, 554 U.S. 

570, 582 (2008)). 

At the second step of the Bruen test, we held that the 

Government failed to carry its burden to show that § 922(g)(1), 

as applied to Range, “is part of the historical tradition that 

delimits the outer bounds of the right to keep and bear arms.” 

Id. at 103-06.8 We declined to set forth a “touchstone” attribute 

that the Government could rely upon to justify disarmament, 

such as dangerousness, noting that the Government failed to 

carry its burden as to Range, whether the analysis was 

“grounded in dangerousness or not.” Id. at 104 n.9. We further

emphasized that our decision was a “narrow one” because the 

Government failed to show that the Republic has a 

longstanding history and tradition of depriving “people like 

Range” of their firearms. Id. at 106. 

8 We concluded that the Government’s proffered analogues—

status-based restrictions disarming Loyalists and Native 

Americans at the Founding, the historical practice of capital 

punishment, and forfeiture laws—were insufficient to carry the 

Government’s burden given the specifics of Range’s situation. 

Id. at 104-06.
12

B.

Range is of little aid to Dorsey unless he can show that 

there can be no reasonable disagreement as to whether he is 

similarly situated to the appellant in Range for Second 

Amendment purposes. He cannot make that showing for at 

least three reasons.

As a starting point, Dorsey’s statute of conviction and 

the nature of his prior offense are meaningfully different from 

Range’s. Dorsey was convicted of violating a state firearm law, 

while Range was convicted of food stamp fraud. The former 

represents a failure to comply with a state law regulating the 

possession and use of deadly weapons; the latter is essentially 

a crime of dishonesty. It is far from clear that those offenses 

are similar for Second Amendment purposes. Moreover, Range 

explicitly left open the possibility that the Second Amendment 

permits an individual convicted of a “dangerous” felony to be 

disarmed. Id. at 104 n.9. Failure to comply with a state firearm 

law is at least arguably dangerous. Dorsey’s disarmament on 

the basis of his firearm offense is therefore not glaringly 

inconsistent with Range.

Dorsey’s prior conviction is also far more recent than 

Range’s prior conviction. Dorsey’s prior conviction was 

entered less than four years ago, while Range’s prior 

conviction was nearly thirty years old at the time of this Court’s 

en banc decision. See id. at 98. Thus, it is not obvious, based 

on Range, that the Second Amendment forbids a legislature 

from constitutionally disarming a felon only four years after 

the entry of his conviction.9

9 Because Range was decided on a narrow, as-applied basis, 

the relevance, for Second Amendment purposes, of the 
13

Finally, and significantly, Dorsey was on state parole at 

the time of the offense conduct. “A person . . . on parole . . . is 

in fact still serving out his sentence.” Commonwealth v. 

Frankenhauser, 375 A.2d 120, 122 (Pa. Super. Ct. 1977) 

(citing Commonwealth ex rel. Banks v. Cain, 28 A.2d 897 (Pa. 

1945)). “Parolees are in a position different from the general 

population because they are still subject to an extant term of 

imprisonment.” Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 

634, 638 (Pa. Commw. Ct. 2005). Range himself was not 

serving an ongoing term of parole or its federal counterpart, 

supervised release. Thus, our decision in his case provides no 

guidance on the relevance of an undischarged criminal 

sentence to the constitutionality of a felon possessing a firearm. 

We conclude that, at the very least, there can be reasonable 

debate as to whether an individual who has been released from 

prison but is still serving his criminal sentence can be disarmed 

consistent with the Second Amendment. Such uncertainty

demonstrates that any error here was not plain.

***

Given the sea-change effected by Bruen, and 

considering the narrowness of our decision in Range, we 

conclude that there can be reasonable debate as to whether the 

Second Amendment permits disarmament of an individual 

with a four-year-old conviction for possession of a firearm 

interplay between the nature of a prior conviction and its 

recency is unclear. Though Range held that a legislature cannot 

constitutionally disarm an individual with a single conviction 

for food stamp fraud thirty years after his conviction, it said 

nothing about whether an individual with a more serious (or 

more dangerous, or more violent) conviction could be 

disarmed for the same (thirty-year) period. See 69 F.4th at 106.
14

without a license and who was laboring under a criminal 

sentence at the time of the offense conduct. Any Second 

Amendment error inherent in Dorsey’s conviction therefore 

was not plain. We will affirm.