PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSEPH LEE CHATWIN, Defendant - Appellant. No. 21-4003

________________ _________________ Appeal from the United States District Court for the District of Utah (D.C. Nos. 2:16 -CV-00932-RJS & 2:12-CR-00617-RJS-1)

________________ _________________ Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with hi m on the briefs), Salt Lake City, Utah, for Defendant-Appellant. Nathan H. Hack, Assistant United States Attorney (Andrea T. Martinez, United States Attorney, with hi m on the brief), Salt Lake City, Utah, for PlaintiffAppellee.

________________ _________________ Before PHILLIPS , Circuit Judge, LUCERO , Senior Circuit Judge, and McHUGH , Circuit Judge.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### February 17, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 12 Joseph Lee Chatwin appeal s the district court’s denial and dismissal of his 28 U.S.C. § 2255 motion. Ex ercising jurisdiction under 28 U.S.C. §§ 1291 and 1253, we reverse and remand.
BACKGROUND In 2013, Chatwin pleaded guilty to two counts: (1) bank fraud (“Count 3”) and (2) using or carrying (and brandishing) a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c )(1)(A)(ii) (“Count 9”). As part of the plea agreement, the government recommended dismissal of seven other charged counts, and Chatwin waived any right to colla terally attack his sentence (though not his convictions). In 2016, Chatwin filed a pro se § 2255 motion challenging his § 924(c)(1)(A)(ii) conviction and sent encing as unconstitutional under Johnson v. United States , 576 U.S. 591 (2016) (hol ding that 18 U.S.C. § 924(e)(2)(B)(ii)’s residual clause was unconstitutionally vague). As “supporting facts,” Chatwin simply wr ote that “police ch ase not a violent crime.” R. vol. 1, at 9. The government moved to dism iss the § 2255 motion as insufficiently pleaded. Choo sing not to address the me rits of the motion, the government argued (1 ) that Chatwin had “knowingly and voluntarily waived his § 2255 rights in a Rule 11(c)(1)(C) plea agreement and that waiver is valid and enforceable;” and (2) that he had not filed his motion “within one year of the judgment” as required by § 2255(f)(1) and without an exception applying under Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 23 § 2255(f)(3). Id. at 86. The governmen t “deferred for late r briefing” “other defenses and merits arguments.” Id. at 87. In 2020, by th en represented by counsel, Chatwin moved to amend his motion after the issuance of United States v. Davis , 139 S. Ct. 2319, 2336 (2019) (holding that § 924(c)(3)(B)’s residual clause was unconstitutionally vague). Though neither th e plea agreement nor the pl ea colloquy stated whether the court based the § 924(c) conviction on § 924(c)(3)(A)’s elements clause, § 924(c)(3)(B)’s residual clause, or both , Chatwin contended that the district court relied solely on the residual clau se (a question not ye t resolved by the district court). From that, he argued under Davis that the district court needed to vacate his § 924(c) c onviction and resentence him. In response, the government repeated its argu ment that Chatwin’s collate ral-attack wa iver in the plea agreement defeated any § 22 55 claim, including one based on Davis

. 1 The district court agreed with the government’s collateral-attack-waiver argument and dismissed Chatwin’s § 2255 motion. Chatwin v. United States , No. 2:16-CV-932-RJS , 2020 WL 7212148, at *4–6 (D. Utah D ec. 7, 2020). In doing so, the court took its cue from the parties and evaluated the enforceability of the co llateral-attack waiver under the rule in United States v.

1 Though the district court did not address it, the government this time tagged on a short argument that th e court had based Chatwin’s § 924(c) conviction on his “assault on federal officers using a dangerous or deadly weapon under 18 U.S.C. § 111(b), as alleged in Count 8 of the Indictment.” Id. at 218. It asserted that under Tenth Circ uit caselaw, § 111(b) qualifies as a crime of violence for § 924(c) purposes. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 34 Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Id. at *6–7. Addressing Hahn ’s first prong, the court noted th at “Chatwin does not argue his due process claim falls outside the waiver.” Id. at *3. It th en turned to Hahn ’s third prong, the one Chatwin relied on in his briefing. Id. at *4–6. There, the court considered whether enforcing the collateral-attack waiver would amount to a miscarriage of justice. Id. The district court thorou ghly analyzed Chatwin’s argument on this point before rejectin g it, denying Chatwin’s motion to amend his § 2255 motion, and di smissing the case. Id. Seeking relief in our court, Ch atwin moved for a certificate of appealability and filed a brief in support. 2 This time, Chatwin raised a new argument—that his collateral-attack waiver must fail under the first Hahn prong, on grounds that his conviction-based § 2255 motion fell outside the scope of his collateral-att ack waiver in the plea agreement. He argued that his waiver barred any collateral attacks to his sentence but not to his convictions

. DISCUSSION
I. The standard of review on appeal is plain error. The district court dismissed Chatwi n’s § 2255 motion without deciding its merits. Chatwin , 2020 WL 7212148, at *6. It relied on the plea agreement’s

2 Judge Eid granted a certificate of appealability on the question of “whether waiver of the ri ght to collaterally challe nge a sentence prevents a collateral challenge to the underlying conviction.” United States v. Chatwin , No. 21-4003 (Dec. 15 , 2021). Though the Davis issue wasn’t briefed, it obviously serves as th e constitutional claim under lying Chatwin’s § 2255 motion. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 45 collateral-attack waiver. Id. Because the district court dismissed without reaching the merits, and beca use Chatwin has first raised his “scope” of waiver on appeal, we review unde r the plain-error standard. See United States v. Frady , 456 U.S. 152, 166 n.15 (1982) (“[T ]he ‘plain error’ st andard [may] be applied by a court of appeals on direct review of a district court’s conduct of the § 2255 hearing itself.”).
II. Plain-Error Review To show plain error, Chatwin must s how: “(1) error that is (2) plain, (3) affects substantial rights, and (4) seri ously affects the fairness, integrity, or public reputation of judicial proceedings.” Abernathy v. Wandes , 713 F.3d 538, 553 (10th Cir. 2013) (quoting United States v. DeChristopher , 695 F.3d 1082, 1091 (10th Cir. 2012)). An error is plain if it is clear or obvious. United States v. Olano , 507 U.S. 725, 734 (1993) (citations omitted).
A. Chatwin has shown the first two prongs of the plain-error standard. The government doesn’t comment on the first two prongs of the plainerror standard (apparently conceding them ) on its way to the th ird. But we will address all four prongs of the stan dard. Examining th e language of the collateral-attack waiver, we conclude th at the district court plainly erred by dismissing based on a misreading of the waiver. As mentioned, the waiver bars Chatwin from collateral challenges to hi s sentence, not to his convictions: I also knowingly, voluntarily, an d expressly waive my right to challenge my sentence , except [where the co urt imposes a sentence Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 56 above the maximum penalty], in any collateral review motion, writ or other procedure, including bu t not limited to a motion brought under 28 U.S.C. § 2255, except on the issue of counsel’s ineffective assistance in negotiating or entering this plea or this waiver as set forth in United States v. Cockerham , 237 F.3d 1179, 1187 (10th Cir. 2001). R. vol. 2, at 27 (emphasis added). The collateral-attack waiver does not bar Chatwin from collaterally challenging his conviction . The waiver’s language is so clear that we could not seriousl y consider it amenable to a rival interpretation. Thus, Chatwin ha s shown error that is plain. 3
B. Chatwin has shown that the err or affected his substantial rights. For an error to affect substantial righ ts, it must be prej udicial, meaning it generally must have “affected the outcom e of the district court proceedings.” Olano , 507 U.S. at 734. So Ch atwin must show “a reas onable probab ility that, but for the error claimed, the result of the proceeding would have been different.” United States v. Gonzalez-Huerta , 403 F.3d 727, 733 (10th Cir. 2005) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004)). Here, the district-court “pro ceeding” was to decide th e government’s motion to

3 In arguing that he has met the plai n-error standard, Chatwin directs us to United States v. Loumoli , 13 F.4th 1006 ( 10th Cir. 2021). There, we ruled that a substantively identi cal collateral-attack waiver did not bar a collateral attack to the defe ndant’s conviction. Id. at 1010. Though Loumoli is consistent with our holding today, we rely on the precise term s of Chatwin’s collateralattack waiver, not on that decision, which we i ssued nine months after the district court’s decision here. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 67 dismiss (presented on the collateral-att ack waiver, rather th an on the merits). 4
Chatwin , 2020 WL 7212148, at *3–6. Accordingly, we hold that the “outcome of the proceeding” here means the out come of the motion to dismiss—not matters beyond that. In contrast, the government cont ends that “the outcome of the proceedings” still reaches the ultimate ruli ng on the merits of the § 2255 motion, despite the district court’s dism issal of the case on collateral-attackwaiver grounds. As support, the government offers cases of a different ilk than Chatwin’s—ordinary cases in which a dist rict court decided th e merits but made an analytical misstep along the way. Pred ictably, the plain e rror in those sorts of cases does not always affect the outcome of the district court’s merits adjudication. But the government offers no cases in which the district court hasn’t decided the underlying merits, le t alone any cases in that posture in which the appellate court ha s interceded to re solve the merits by itself in the first instance. 5

4 Had the district court denied the government’s motion to dismiss, it would have needed to decide Chatwin’s Davis -based motion to amend his § 2255 motion.

5 As mentioned, Frady , 456 U.S. at 166 n.15, dire cts us that “the ‘plain error’ standard [may] be applie d by a court of appeals on direct review of a district court’s conduct of the § 2255 hearing itself.” Yet if the government were correct here that “the outcome of the proceedings ” means the likely ultimate disposition of Chat win’s § 2255 motion, Chatwi n would need to meet the cause-and-prejudice standard for any arguments he did not raise on direct appeal. See id. at 167–68. Taken to its logical end, the government’s approach Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 78 The government’s two primary cases are plain-error cases on direct review. In them, the district courts pl ainly erred while deciding the underlying merits. Both cases— Puckett v. United States , 556 U.S. 129 (2009), and Olano , 507 U.S. 725—are distinguis hable from Chatwin’s.
In Puckett , the Court reviewed for plain erro r a district court’s failure to enforce a plea-agreement te rm for an acceptance-o f-responsibility reduction after the government oppo sed the reduction, even though the government initially promised to support it. 556 U.S. at 133. Th e Court ruled that though the defendant had shown the first two pr ongs of plain error, he failed on the third prong, which re quires prejudice. Id. at 141. Based on the defendant’s criminal conduct committed after the pl ea agreement, the Co urt ruled that a defendant fails to show prejudice if “h e likely would not have obtained those benefits in any event (as is seemingly the case here).” Id. at 142 & n.4. In other words, the district court erred in an analy tical step when resolving the merits, but the error didn’t affect th e outcome of the sentence imposed. The key takeaway is that Puckett is a poor analog for Chatwin’s case, because though the adjudicated merits of Puckett’s prison sentence would remain unchanged, the ou tcome of Chatwin’s case was not decided. In Puckett , the plain error related to the outcome of the case. Fo r Chatwin’s situation to

would render Frady ’s direction to use the plain-error standard meaningless in this situation. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 89 parallel Puckett’s, the district court would have had to plainly err on the “scope-of-the-collateral-attack-waiver” i ssue but not in a way that would affect the outcome-of-the-scope issue

. 6
In Olano , the Court reviewed for plain e rror a district court’s seating alternative jurors during deliberations. 507 U.S. at 737. Again, though finding plain error in that procedure, the Cour t concluded that the defendant had failed to show prejudice under the third prong of the plain-error analysis, reasoning that “the record before us contains no direct evidence that the alternative jurors influenced the verdict.” Id. at 734, 737. Again, the di strict court resolved the merits by seating the juro rs. Nothing equivalent happened in Chatwin’s case. We conclude that Chatwin has show n substantial prejudice based on the dismissal of his § 2255 motion. He ha s shown that the outcome of “the proceeding” would have been different in that the district court could not have dismissed on the issue of the collateral-attack waiver ’s scope. Absent plainly erring on the waiver’s scope, the district court could not have dismissed on that ground.

6 See also Resp. Br. 13 (citing United States v. Mendoza , 698 F.3d 1303, 1310 (10th Cir. 2012) (find ing no prong-three pr ejudice despite the government’s breaching th e plea agreement by r ecommending a higher sentence, because the defend ant could not show “a r easonable probability that he would have recei ved a lesser sentence absent the government’s breach”))

. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 910 We express no view on the ultimate merits of the § 2255 motion but remand to the district court for its determination. 7 We decline the government’s invitation to resolve matters beyond the district court’s dismissal of the § 2255 motion. Though the governm ent offers its assurance th at “Chatwin’s claim is meritless,” “because this Court has alread y held that the sa me predicate “crime of violence” for Chatwin’s § 924(c) conv iction—18 U.S.C. § 111(b)—is in fact a crime of violence,” Resp. Br. 17–18, any argument on th e merits is best first presented to the district court. If we decided them in the first instance on appeal, we might unfairly deny Chatwin an opportunity to make his case. We are uncertain what argument s he might raise. He file d a counseled motion to amend his pro se § 2255 motion. Though we know what it s ought to amend months ago, we don’t know whether Chat win would limit his legal theories to those previously expounded when preven ted from going forw ard. The proper place for these matters is in the district court. Rather than rush to decide the merits, when the district court hasn’t yet done so, we shou ld let the process play out in district court.
C. Chatwin has shown that the error affected the fairness of the judicial proceedings.

7 We note that the parties have no t addressed whether Chatwin’s guilty plea may bar consideration of th e merits of his claim under Tollett v. Henderson , 411 U.S. 25 8 (1973), and Class v. United States , 138 S. Ct. 798 (2018). On remand, the district co urt should consid er that issue. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 1011 Under the fourth prong of the plain- error standard, Chatwin must show that the district court’s dismissal of hi s § 2255 motion “serio usly affect[s] the fairness, integrity or public repu tation of judicial proceedings.” Olano , 507 U.S. at 732 (alteration in original) (quoting United States v. Young , 470 U.S. 1, 15 (1985)). Chatwin is entitled to proper resolution of his Davis claim. See United States v. Dazey , 403 F.3d 1147, 1174, 1178 (10th Cir. 2005) (stating that we conduct plain-error review “less rigidly when revi ewing a potential constitutional error” (internal citation omitted)). Exercising our discretion, we conclude that the district court’s erro r affected the fairness of the judicial proceedings in the district court.
CONCLUSION

We reverse the district court’s di smissal order and remand for further proceedings to decide Chatwin’s § 2255 motion. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 1121-4003, United States v. Chatwin
McHUGH , Circuit Judge, dissenting: This court improvide ntly granted a certificate of appealability (“COA”), and I would vacate it. Alternatively, I would affi rm the dismissal of Mr. Chatwin’s § 2255 motion because the claimed error fails to satisfy the third and fourth prongs of our plain error standard.
I. THE COA WAS IMPROV IDENTLY GRANTED Mr. Chatwin’s request for a COA did not meet the statutory requirements for granting a COA. Therefore, I would vacate the COA and dismiss for lack of jurisdiction. Congress authorizes us to review the deni al of a motion under 28 U.S.C. § 2255 only where the movant obtains a COA. 28 U.S.C. § 2253(c)(1 )(B). A COA may issue

“ only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (emp hasis added). Where, as here, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying cons titutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was corre ct in its procedural ruling. Slack v. McDaniel , 529 U.S. 473, 484 ( 2000) (emphasis added). “Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal.” Id. at 485 (emphasis added). We do not routinely revisit the decision to grant a COA, and fo r good reason. “[I]t would be passing strange if, af ter a COA has issued, each co urt of appeals adjudicating Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 122 an appeal were dutybound to revisit the threshold showing an d gauge its substantiality to verify its jurisdiction. That inquiry would be largely duplicative of the merits question before the court.” Gonzalez v. Thaler , 565 U.S. 134, 143 (2012) (internal quotation marks and alteration omitted). But, wh ere we have belatedly realized a COA should not have been granted for failu re to satisfy some prerequisite , we have vacated such COAs. 1 Mr. Chatwin made only one substantial s howing in his COA request: a procedural error. To satisfy our test for a COA, he had to show both a procedural error and denial of a constitutional right. Mr. Chatwin failed even to squarely argue the second prong of the COA test, let alone satisfy it. Mr. Chat win has now fleshed out his constitutional argument somewhat, but the Supreme Cour t has admonished that “both showings” required for a COA from a procedural dismissal must be made “ before the court of appeals may entertain the appeal.” Slack , 529 U.S. at 485 (emphasis added). Mr. Chatwin failed to do so, and I would accordingly vacate the COA. Now that a COA has issued—even if im providently—we have jurisdiction to entertain the appeal. See Gonzalez , 565 U.S. at 143 (explaining that, while the requirement to obtain a COA is jurisdictiona l, the statutory criteria on which a COA may issue are non-jurisdictional). For the reasons I now explain, I would affirm the dismissal because the alleged error fails to satisfy the third and fourth pr ongs of the plain error test.

1 See, e.g. , Holcomb v. Whitten , 836 F. App’x 682, 690 (10th Cir. 2020) (unpublished) (vacating appellate-court-grante d COA due to later determination that applicant had procedurally defaulted the claim); United States v. McGee , 760 F. App’x 610, 612 (10th Cir. 2019) (unpublished) (v acating appellate-court-granted COA due to later realization that applic ant had waived the claim). Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 133 II. THE UNDERLYING CONSTITUTI ONAL CLAIM IS MERITLESS I begin by observing that Mr. Chatwi n’s underlying constitutional claim is meritless as a matter of law. Mr. Chatwin’s sole constitutional claim rests on the premise that the predicate offense for his § 924(c) c onviction was § 111(a). This is based on an erroneous reading of the indict ment and plea agreement, whic h instead indicate that the predicate offense was necessarily § 111(b ), not § 111(a). The distinction between § 111(a) and § 111(b) is use of a deadly or dangerous weapon, with § 111(b) subjecting the crimes in § 111(a) to a sentencing enhancement when co mmitted with such a
weapon. 2 In pleading guilty to the § 924(c) cr ime alleged in Count 9, Mr. Chatwin admitted to brandishing— i.e. , using—a firearm. See United States v. Bowen , 527 F.3d 1065, 1074 (10th Cir. 2008) (“[O ]ne necessarily ‘uses’ a fir earm while ‘brandishing’ such a weapon.”). Thus, he necessa rily violated § 111(b). Furthermore, the predicate offense for a § 924(c) conviction must be a felony. 3
Section 111 contains three o ffenses—misdemeanor § 111(a), felony § 111(a), and felony

2 “Whoever, in the commission of any acts descri bed in subsection (a), uses a deadly or dangerous weapon . . . shall be fined under this title or imprisoned not more than 20 years, or both.” 18 U.S.C. § 111(b).

3 As relevant here, 18 U.S.C. § 924(c)(1 )(A) enhances the penalty for “any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm.” In turn, 18 U.S.C. § 924(c)(3) defines “crime of violence” as “an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature , involves a substantia l risk that physical force against the person or property of anot her may be used in the course of committing the offense.” (emphasis added). Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 144 § 111(b). United States v. Hathaway , 318 F.3d 1001, 1007–09 (10th Cir. 2003). Felony § 111(a) requires physical contact or intent to commit another felony. United States v. Wolfname , 835 F.3d 1214, 1218 (10th Cir. 2016). Fe lony § 111(b) requires, instead, use of “a deadly or dangerous weapon.” 18 U. S.C. § 111(b). Mr. Chatwin was not charged with and did not admit to physical contac t or intent to commit another felony. He was charged with and did admit to use of a deadly or da ngerous weapon. Accordingly, the only § 111 felony whose elements Mr. Chatwin admitted to is § 111(b). For these reasons, the only possible predicate offense for Mr. Chatwin’s § 924(c) conviction was § 111(b), not § 111(a). And because § 111(a) was not the predicate offense for Mr. Chatwin’s § 924(c) convicti on, his argument that § 111(a) is not categorically a crime of violence provide s no basis for relief from his § 924(c) conviction. 4
III. THE ALLEGED PROCEDURAL ER ROR DOES NOT MEET THE PLAIN ERROR STANDARD We review an argument raised for the first time on appeal for plain error only. United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005). To show plain error, a party must show “(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.” Id. All four prongs must be satisfied be fore we can exercise our discretion

4 My colleagues suggest Mr. Chatwin might make new arguments on remand

. But the burden on plain error review is Mr. Chatwin’s, United States v. Gonzalez-Huerta , 403 F.3d 727, 733 (10th Cir. 2005), and the only ar gument he makes is that § 111(a) is not categorically a crime of violence. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 155 to correct an error that was not timely raised. Johnson v. United States , 520 U.S. 461, 466–67 (1997). The Government conced es error in light of our ruling in United States v. Loumoli , 13 F.4th 1006, 1009–10 ( 10th Cir. 2021), and does not dispute the second and fourth plain error prongs. The Government co rrectly argues the claimed error fails the third prong, and, as I e xplain below, the error also fails the fourth prong. A. Prong Two: The Majority’s Rationale is Insufficient I would not reach the second plain error prong but, because my colleagues discuss it, I note my disagreement with their rationale. “An error is plain if it is clear or obvious under current, well-settled law.” Utah Physicians for a Health y Env’t v. Diesel Power Gear, LLC , 21 F.4th 1229, 1252 (10th Cir. 2021) (i nternal quotation marks and citation omitted). “Plain” error has been called error so plain a court would be “derelict in countenancing it, even absent the defe ndant’s timely assistance detecting it.” United States v. Frady , 456 U.S. 152, 163 (1982 ). The error need not have been plain at the time of the district court’s decision; “it is eno ugh that an error be ‘plain’ at the time of appellate consideration.” Johnson , 520 U.S. at 468; see also Gonzalez-Huerta , 403 F.3d
at 732. The majority relies on the language of the waiver to conclude it covers only Mr. Chatwin’s sentence and not his convictio n. This shows error, but it does not show plainness. The waiver was open to a variety of reasonable interpretations, including the Government’s reading of a n early identical waiver in Loumoli as barring challenges to Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 166 both the sentence and the conviction. 5 Without identifying “clear, well-settled law” that requires us to accept the majority ’s interpretation instead of a reasonable alternative, the majority has not shown the error was plain. Although I disagree with the majority’s reas oning, I agree with its conclusion that the error is plain. Loumoli held that a waiver of the right to challenge a sentence does not waive the right to challenge a conviction, 13 F.4th at 1010, clearly showing the district court erred in finding Mr. Chatwi n’s appeal waiver to bar his challenge to his conviction. The majority notes Loumoli was decided after the district court’s decision in this case, but we judge the plainness of an error on direct appeal by the law in effect at the time of the appeal, not at the time of the district court’s decision. See Johnson , 520 U.S. at 468; Gonzalez-Huerta , 403 F.3d at 732. The majority appears concerned that applying Loumoli would be inconsistent with the contrary rule that a party seeking collateral review does not receive the benefit of interv ening law. But Mr. Chat win does not point to Loumoli to argue he was erroneously denied hab eas relief based on an error committed at trial or sentencing; rather, he points to Loumoli to show the distri ct court erred in dismissing his case based on his appeal wa iver during the habeas proceedings. Put another way, we are not performing collatera l review of the trial court proceedings

5 The language of these waivers tracks the language of 28 U.S.C. § 2255, which authorizes challenges to “sentences,” not “convictions.” Yet federal courts interpret § 2255 to allow challenges to convictions as well. See United States v. Loumoli , 13 F.4th 1006, 1010 (10th Cir. 2021) (citing Sandusky v. Goetz , 944 F.3d 1240, 1246 (10th Cir. 2019)). Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 177 resulting in Mr. Chatwin’s sentence or conviction; 6 we are performing what the Supreme Court refers to as “direct review” of the dist rict court’s procedural decision in a habeas

case. Frady , 456 U.S. at 166 n.15 (explaining th at, although plain error is not an appropriate standard on colla teral review, it may be applie d “by a court of appeals on direct review of a district court’s conduct of the § 2255 [proceedi ngs]”). Therefore, we employ plain error as we would on direct appeal. Id. (“A court of appeals . . . could invoke the ‘plain error’ standard on direct review of a distri ct court’s conduct of a § 2255 hearing, if the court of appeals found a sufficiently egregious error in the § 2255 proceeding itself that had not be en brought to the attention of the district court.”). Thus, I would conclude the error is plain based on our decision in Loumoli

. B. Prong Three: The Error Did Not Affect Substantial Rights To satisfy the third prong of the plain e rror test, a defendant must “satisfy the judgment of the reviewing cour t, informed by the entire reco rd, that the probability of a different result is sufficient to unde rmine confidence in the outcome.” United States v. Dominguez Benitez , 542 U.S. 74, 83 (2004) (interna l quotation marks and citation omitted). The Supreme Court has advised that th e standard we apply to the third prong of plain error review “should enforce the polic ies that underpin Rule 52(b) generally, to encourage timely objections and reduce wa steful reversals by demanding strenuous

6 In the context of collateral review, th e Supreme Court has explained that the review of an unpreserved trial error in habe as proceedings is governed by the rules of “cause and actual prejudice,” not plain error. United States v. Frady , 456 U.S. 152, 166 (1982). Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 188 exertion to get relief for unpreserved error.” Id. at 82 (citation omitted). Among the factors we may consider is whether the e rror invaded a constitutio nal right or merely violated a procedural rule. Id. at 83 (“[I]n this case, these reasons [for finding insufficient prejudice to meet third prong] are complement ed by the fact, worth repeating, that the violation claimed was of Rule 11, not of due process.”). The majority finds the third prong satisfied because the district court did not have the opportunity to revi ew the merits in the first inst ance. My colleagues do not specify which right of Mr. Chatwin this affected, nor do they explain why such a right was “substantial.” They simply equate dismissal with prejudice. In my view, more is required. Sending this case back to the district cour t without requiring Mr. Chatwin to demonstrate harm beyond the procedural error itself does not encourage timely objections. Finding the third plain error prong met here also does not discourage wasteful reversals—because Mr. Chatwin’s substantive claim is meritless as a matter of la w, it is wasteful to remand for further proceedings in the district court. Complemen ting these observations is the fact that the claimed “plain error” is a mere procedural erro r as to the scope of an appeal waiver, not a constitutional error. Although my colleagues are correct that Puckett v. United States is not perfectly on point, its analysis is instructiv e. 556 U.S. 129, 140–41 (2009). In Puckett , the Supreme Court evaluated a procedural error at sent encing under the plain error standard and explained: A plea breach does not necessarily re nder a criminal tr ial fundamentally unfair or an unreliable vehicle for determining guilt or innocence; it does not defy analysis by harmless-erro r standards by affecting the entire Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 199 adjudicatory framework; and the difficulty of assessing the effect of the error is no greater with respect to plea breaches at sentencing than with respect to other procedural errors at sentencing, which are routinely subject to harmlessness review

. Id. at 141 (internal quotation marks and citati ons omitted) (emphasis added). The majority rejected the dissent’s position that th ere is always an impairment of substantial rights under the third prong where a defendant is convicted “in the absence of trial or compliance with the term s of a plea agreement.” Id. at 142. The Court explained: [T]hat is simply an ipse dixit recasting the conceded error—breach of the plea agreement—as the effect on substa ntial rights. Any trial error can be said to impair substantial rights if th e harm is defined as “being convicted at a trial tainted with [fill-in-the-blank] error.” Nor does th e fact that there is a “protected liberty interest” at stake render this case different. That interest is always at stake in crimin al cases. Eliminating the third plainerror prong through semantics makes a nullity of Olano ’s instruction that a defendant normally “must make a speci fic showing of prejudice” in order to obtain relief. Id. at 142 (quoting Olano , 507 U.S. 725, 735 (1993)). Thus , the majority firmly rejected the notion that prejudice can be shown mere ly from denial of proceedings free from the

error. As my colleagues point out, Puckett was a direct appeal from a criminal conviction, not an appeal from dismissal of a habeas motion. But the Supreme Court in Frady clarified that the standard on direct re view of a procedural error made during collateral proceedings where the argument was not preserved is plain error, 456 U.S. at 166 n.15—the same as in Puckett . And Puckett supports the proposition that, on plain error review, remand is not required where correcting the procedural error would not change the substantive outcome. Ou r circuit precedent is the same. See, e.g. , United Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2010 States v. Chavez-Morales, 894 F.3d 1206, 1216–17 (10t h Cir. 2018) (holding plain procedural sentencing error failed prong th ree because it did not impact substantial rights); United States v. Begaye, 635 F.3d 456, 471 (10t h Cir. 2011) (same); United States v. Mendoza, 543 F.3d 1186, 1194 ( 10th Cir. 2008) (same). In adopting a rule that a pro cedural error resulting in dism issal of a habeas claim is

per se prejudicial, my colleagues do exactly what Puckett admonished against. Any procedurally erroneous dismissal can be said to impair substantial rights if the harm is defined as the dismissal itself. That is not a “specific showing of prejudice” as required by Olano but an “ ipse dixit recasting the [procedural erro r] as the effect on substantial rights.” 556 U.S. at 142. This is a case in point. The argument for finding the third prong met here is at least as weak as in Puckett because, even if the procedural error is corrected, as a matter of law Mr. Chatwin w ill not be entitled to relief. His argument that the predicate offense for his § 924(c) convicti on was § 111(a) is meritless. Thus, even if Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2111 the dismissal was procedurally erroneous, it did not affect his substantial rights. 7 This is not, as my colleagues suggest, an improper “rush to de cide the merits”; it is straightforward third-prong plain error review. I do not advocate a full merits determinati on on the third plain error prong in every case of arguable plain error. There are often factual questions to be resolved in the district

court. See, e.g. , United States v. Brown , 640 F. App’x 752 (10th Cir. 2016) (unpublished) (McHugh, Circuit Judge) (finding third prong met where procedural error prevented the district court from reaching the merits and factual issues essential to resolving the merits needed to be developed on remand). It may al so be that we are not well positioned to rule on the merits of some purely legal questions, whether because they ha ve not been briefed or for other reasons. But where a claim has be en briefed and is meritless as a matter of law, and no further factfindi ng by the district court coul d change that outcome, the procedural error was not prejudicial and theref ore cannot meet the third plain error prong.

7 Even under de novo review , we deny remand for proce dural errors where there is no likelihood of success on the merits. See, e.g. , United States v. Gonzalez-Fierro , 949 F.3d 512, 522–24 (10th Cir. 2020) (explaining that to demonstrate prejudice from a procedural error in deporta tion proceedings the alien must show at least a reasonable probability that he would no t have been deported in the absence of the error); Anderson v. United Tel. Co. of Kan. , 933 F.2d 1500, 1503–04 (10th Ci r. 1991) (determining that even if district court procedurally erred in gr anting a judgment notwithstanding the verdict on grounds not presented with sufficient specif icity, remand was unwarranted because the district court correctly analyzed the issue); see also United States v. Luna , 436 F.3d 312, 314–15, 321–23 (1st Cir. 2006) (holding that immigration judge’s procedural error of refusing to consider the merits of an ap plication for relief fro m deportation did not prejudice alien because he wo uld not have prevailed on hi s arguments against deportation even had they been ad judicated). It is inconsistent with the varying difficulty imposed by our standards of review to remand on plai n error where the appellant cannot, as a matter of law, succeed on the merits, but deny remand on de novo review. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2212 Here, the indictment and the plea agreem ent conclusively resolve Mr. Chatwin’s claim. The predicate offense for his convic tion was not § 111(a). Nothing the district court might do will change that . Because there is no possibility Mr. Chatwin can prevail on his substantive claim, the procedural error did not affect his substantial rights and, in my view, this prong of plain error is unmet. Nor am I persuaded by my colleagues’ suggestion that we do not know what arguments Mr. Chatwin may raise in the district court. We know exactly what his argument is. In his proposed amended § 22 55 motion, Mr. Chatwin argued that his § 924(c) conviction was predicated on § 111(a ), and § 111(a) was not categorially a crime of violence. In his opening brie f in this court, he tells us he will make the same argument on remand. Appellant’s Br. at 9 n.2 (“[O]n remand, Mr. Chatwin will show that the § 924(c) conviction was actually based on § 111(a) . . . , whic h this court has held does not categorically require the use of violen t force.”). He devotes four pages of his appellate reply brief to this same argu ment. If Mr. Chatwin had other potentially meritorious arguments that might justify rema nd, the burden was his to present them to

us. Gonzalez-Huerta , 403 F.3d at 733. He did not. Be cause Mr. Chatwin’s only argument must fail, the district court’s dismissal did not affect any substantial right and the third plain error prong is unmet. Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2313 C. Prong Four: The Error Was Not Egre gious and Declining to Remand Would Not Result in a Miscarriage of Justice Even if the alleged procedural error satis fied the third plain error prong, it would fail the fourth prong. We have said: Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. As such, we will not notice a non-constitutional e rror, such as the one in the case before us, unless it is both particularly egregiou s and our failure to notice the error would result in a miscarriage of justice. This is a demanding standard[.]
Gonzalez-Huerta , 403 F.3d at 736– 37 (internal quotation mark s and citations omitted) (emphasis added). We have previously no ted that the Supreme Court “consistently applie[s]” the fourth plai n error prong “rigorously.” Id. at 737 (citing Johnson , 520 U.S. at 469–70). The appellant bears the burden of showing this standard is met. Id.
In Gonzalez-Huerta , we rejected the appellant’s conclusory statement that “to leave standing this sentence imposed under th e mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity, or public reputation of judicial proceedings,” calling this “a far cry from estab lishing that a miscarriage of justice would occur if we do not remand.” Id. at 739. Rather, we held that the procedural error— mandatory application of the Sentencing Guidelines—did no t satisfy the fourth plain error prong for several reasons. Id. at 737–39. First, although the rule had underpinnings in the Sixth Amendment, the error itself did not violate any constitutional right. Id. at 738. Second, the appellant’s sentence was within the national no rm and there was no record evidence to sup port a lower sentence. Id. at 738–39. Third, the error did not Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2414 jeopardize “basic notions of justice.” Id. at 739. “[B]ased upon the culmination of these factors,” we decided the error failed to satisfy the fourth plain error prong. Id. Notably, we concluded Prong Four was unmet even if the error had affected the appellant’s substantial rights on the third prong. Id. at 736.
In United States v. Mitchell , we similarly declined to reverse for plain error where the claimed error was failure to apply the excl usionary rule, despite the rule’s foundation in the Fourth Amendment. 783 F.2d 9 71, 978 (10th Cir. 1 986). We reasoned: [U]nder the plain error inquiry, reve rsal is mandated only to correct particularly egregious errors, thos e errors that seriously effect [ sic ] the fairness, integrity or public reputation of judicial proceedings. . . . Although an individual has a personal privacy intere st in the protections of the Fourth Amendment, the exclusionary rule is a judi cially created remedy rather than a personal constitutional right of the aggrieved individual. It is incumbent on an aggrieved party to raise the issue . . . . The exclusionary rule is not, therefore, a constitutional matter that involves the plain error rule in all cases. To so hold would make superfluous the requirement of a pretrial motion to suppress.
Id. at 977–78 (internal quota tion marks and citations om itted) (emphasis added). My colleagues do not explain how Mr. Ch atwin meets his burden on the fourth prong, stating simply, “Exercising our discreti on, we conclude that the district court’s error affected the fairness of the judicial pr oceedings.” I would hold to the contrary that the error Mr. Chatwin alleges—enforci ng the waiver beyond its scope—is not “particularly egregious.” At the time of the district court’s decision, we had not yet ruled that waiving challenges to a sentence does not also waive challenges to a conviction. See Loumoli , 13 F.4th 1006. Furthermore, as explai ned, the constitutional claim erroneously dismissed is meritless as a ma tter of law. If the errors in Gonzalez-Huerta or Mitchell Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 2515 were not “particularly egregious” even wh ere they were contrary to Supreme Court authority or had clear constitutio nal dimensions, the procedural error here was surely not egregious enough to overcome the responsibility of a party to first raise the issue in district court. My colleagues also do not explain how declining to remand a meritless claim would result in a miscarriage of justice. It would not. “In consider ing the fourth prong, the seriousness of the error must be examined in the context of the case as a whole.” United States v. Bustamante-Conchas , 850 F.3d 1130, 1141 (10th Cir. 2017) (internal quotation marks omitted). I see no benefit in exercising our discretion to remand a case where the error resulted in a procedural de ficiency on the way to the inevitable and proper denial of relief. 8 Thus, I conclude the claimed erro r fails to meet the fourth prong of our plain error standard. For these reasons, I respectfully dissent.

8 Conversely, I see significant benefit in “avoiding a remand to the district court for a detailed explanation of what is by now patently obvious.” Requena v. Roberts , 893 F.3d 1195, 1206 (10th Cir. 2018). Appellate Case: 21-4003 Document: 010110814422 Date Filed: 02/17/2023 Page: 26