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 him on the briefs), Salt Lake City, Utah, 

for Defendant-Appellant. 

Nathan H. Hack, Assistant United States Attorney (Andrea T. Martinez, United 

States Attorney, with him 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

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Joseph Lee Chatwin appeals the district court’s denial and dismissal of 

his 28 U.S.C. § 2255 motion. Exercising 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 collaterally 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 sentencing as unconstitutional under Johnson 

v. United States, 576 U.S. 591 (2016) (holding that 18 U.S.C. 

§ 924(e)(2)(B)(ii)’s residual clause was unconstitutionally vague). As 

“supporting facts,” Chatwin simply wrote that “police chase not a violent 

crime.” R. vol. 1, at 9. The government moved to dismiss the § 2255 motion as 

insufficiently pleaded. Choosing not to address the merits 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 

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§ 2255(f)(3). Id. at 86. The government “deferred for later briefing” “other 

defenses and merits arguments.” Id. at 87. 

In 2020, by then 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 the plea agreement nor the plea 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 clause (a question not yet resolved by the 

district court). From that, he argued under Davis that the district court needed 

to vacate his § 924(c) conviction and resentence him. In response, the 

government repeated its argument that Chatwin’s collateral-attack waiver in the 

plea agreement defeated any § 2255 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 Dec. 7, 2020). In 

doing so, the court took its cue from the parties and evaluated the 

enforceability of the collateral-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 the 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 Circuit caselaw, § 111(b) qualifies as a 

crime of violence for § 924(c) purposes. 

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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 that “Chatwin does not argue his 

due process claim falls outside the waiver.” Id. at *3. It then 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 thoroughly analyzed Chatwin’s 

argument on this point before rejecting it, denying Chatwin’s motion to amend 

his § 2255 motion, and dismissing the case. Id.

Seeking relief in our court, Chatwin 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-attack 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 Chatwin’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 right to collaterally challenge 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 the constitutional claim underlying Chatwin’s § 2255 

motion. 

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collateral-attack waiver. Id. Because the district court dismissed without 

reaching the merits, and because Chatwin has first raised his “scope” of waiver 

on appeal, we review under the plain-error standard. See United States v. 

Frady, 456 U.S. 152, 166 n.15 (1982) (“[T]he ‘plain error’ standard [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 show: “(1) error that is (2) plain, 

(3) affects substantial rights, and (4) seriously 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 third. But we will 

address all four prongs of the standard. Examining the language of the 

collateral-attack waiver, we conclude that the district court plainly erred by 

dismissing based on a misreading of the waiver. As mentioned, the waiver bars 

Chatwin from collateral challenges to his sentence, not to his convictions: 

I also knowingly, voluntarily, and expressly waive my right to 

challenge my sentence, except [where the court imposes a sentence 

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above the maximum penalty], in any collateral review motion, writ 

or other procedure, including but 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 seriously consider it amenable to a rival 

interpretation. Thus, Chatwin has shown error that is plain.3

 

B. Chatwin has shown that the error affected his substantial 

rights. 

For an error to affect substantial rights, it must be prejudicial, meaning it 

generally must have “affected the outcome of the district court proceedings.” 

Olano, 507 U.S. at 734. So Chatwin must show “a reasonable probability 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 “proceeding” was to decide the government’s motion to 

3

 In arguing that he has met the plain-error standard, Chatwin directs us 

to United States v. Loumoli, 13 F.4th 1006 (10th Cir. 2021). There, we ruled 

that a substantively identical collateral-attack waiver did not bar a collateral 

attack to the defendant’s conviction. Id. at 1010. Though Loumoli is consistent 

with our holding today, we rely on the precise terms of Chatwin’s collateralattack waiver, not on that decision, which we issued nine months after the 

district court’s decision here. 

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dismiss (presented on the collateral-attack waiver, rather than on the merits).4

Chatwin, 2020 WL 7212148, at *3–6. Accordingly, we hold that the “outcome 

of the proceeding” here means the outcome of the motion to dismiss—not 

matters beyond that.

In contrast, the government contends that “the outcome of the 

proceedings” still reaches the ultimate ruling on the merits of the § 2255 

motion, despite the district court’s dismissal 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 district court decided the merits but made 

an analytical misstep along the way. Predictably, the plain error 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, let alone any cases in that posture in 

which the appellate court has interceded to resolve 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, directs us that “the ‘plain 

error’ standard [may] be applied 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 Chatwin’s § 2255 motion, Chatwin 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 

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The government’s two primary cases are plain-error cases on direct 

review. In them, the district courts plainly erred while deciding the underlying 

merits. Both cases—Puckett v. United States, 556 U.S. 129 (2009), and Olano, 

507 U.S. 725—are distinguishable from Chatwin’s. 

In Puckett, the Court reviewed for plain error a district court’s failure to 

enforce a plea-agreement term for an acceptance-of-responsibility reduction 

after the government opposed the reduction, even though the government 

initially promised to support it. 556 U.S. at 133. The Court ruled that though 

the defendant had shown the first two prongs of plain error, he failed on the 

third prong, which requires prejudice. Id. at 141. Based on the defendant’s 

criminal conduct committed after the plea agreement, the Court ruled that a 

defendant fails to show prejudice if “he 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 analytical step when 

resolving the merits, but the error didn’t affect the 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 outcome of Chatwin’s case was not decided. In Puckett, 

the plain error related to the outcome of the case. For Chatwin’s situation to 

would render Frady’s direction to use the plain-error standard meaningless in 

this situation. 

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parallel Puckett’s, the district court would have had to plainly err on the 

“scope-of-the-collateral-attack-waiver” issue but not in a way that would affect 

the outcome-of-the-scope issue.

6

In Olano, the Court reviewed for plain error a district court’s seating 

alternative jurors during deliberations. 507 U.S. at 737. Again, though finding 

plain error in that procedure, the Court 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 district court resolved the 

merits by seating the jurors. Nothing equivalent happened in Chatwin’s case.

We conclude that Chatwin has shown substantial prejudice based on the 

dismissal of his § 2255 motion. He has 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) (finding no prong-three prejudice despite the 

government’s breaching the plea agreement by recommending a higher 

sentence, because the defendant could not show “a reasonable probability that 

he would have received a lesser sentence absent the government’s breach”)).

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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 government offers its assurance that “Chatwin’s claim is 

meritless,” “because this Court has already held that the same predicate “crime 

of violence” for Chatwin’s § 924(c) conviction—18 U.S.C. § 111(b)—is in fact 

a crime of violence,” Resp. Br. 17–18, any argument on the 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 arguments he might raise. He filed a counseled motion to 

amend his pro se § 2255 motion. Though we know what it sought to amend 

months ago, we don’t know whether Chatwin would limit his legal theories to 

those previously expounded when prevented from going forward. 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 should 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 not addressed whether Chatwin’s guilty 

plea may bar consideration of the merits of his claim under Tollett v. 

Henderson, 411 U.S. 258 (1973), and Class v. United States, 138 S. Ct. 798 

(2018). On remand, the district court should consider that issue. 

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Under the fourth prong of the plain-error standard, Chatwin must show 

that the district court’s dismissal of his § 2255 motion “seriously affect[s] the 

fairness, integrity or public reputation 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 reviewing a potential 

constitutional error” (internal citation omitted)). Exercising our discretion, we 

conclude that the district court’s error affected the fairness of the judicial 

proceedings in the district court. 

CONCLUSION 

We reverse the district court’s dismissal order and remand for further 

proceedings to decide Chatwin’s § 2255 motion. 

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21-4003, United States v. Chatwin 

McHUGH, Circuit Judge, dissenting: 

This court improvidently granted a certificate of appealability (“COA”), and I 

would vacate it. Alternatively, I would affirm 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 IMPROVIDENTLY 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 denial 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) (emphasis added). Where, as here, 

the district court denies a habeas petition on procedural grounds without 

reaching the prisoner’s underlying constitutional 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 correct 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 for good reason. “[I]t 

would be passing strange if, after a COA has issued, each court of appeals adjudicating 

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an appeal were dutybound to revisit the threshold showing and 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, where we have belatedly realized a COA should not have 

been granted for failure to satisfy some prerequisite, we have vacated such COAs.1

Mr. Chatwin made only one substantial showing 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. Chatwin has now fleshed out his constitutional 

argument somewhat, but the Supreme Court 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 improvidently—we have jurisdiction to 

entertain the appeal. See Gonzalez, 565 U.S. at 143 (explaining that, while the 

requirement to obtain a COA is jurisdictional, 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 prongs 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-granted 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) (vacating appellate-court-granted COA due to 

later realization that applicant had waived the claim). 

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II. THE UNDERLYING CONSTITUTIONAL CLAIM IS MERITLESS 

I begin by observing that Mr. Chatwin’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) conviction was § 111(a). This is based on an 

erroneous reading of the indictment and plea agreement, which 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 committed with such a 

weapon.2

 In pleading guilty to the § 924(c) crime 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 firearm while ‘brandishing’ such 

a weapon.”). Thus, he necessarily violated § 111(b). 

Furthermore, the predicate offense for a § 924(c) conviction must be a felony.3

Section 111 contains three offenses—misdemeanor § 111(a), felony § 111(a), and felony 

2

 “Whoever, in the commission of any acts described 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 substantial risk that physical 

force against the person or property of another may be used in the course of committing 

the offense.” (emphasis added). 

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§ 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). Felony § 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 contact or intent to commit another felony. He was 

charged with and did admit to use of a deadly or dangerous 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) conviction, his argument that § 111(a) is not 

categorically a crime of violence provides no basis for relief from his § 924(c) 

conviction.4

III. THE ALLEGED PROCEDURAL ERROR 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 before 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 argument he makes is that § 111(a) is not 

categorically a crime of violence. 

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to correct an error that was not timely raised. Johnson v. United States, 520 U.S. 461, 

466–67 (1997). The Government concedes 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 correctly argues the claimed error fails the 

third prong, and, as I explain 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 Healthy Env’t v. Diesel Power 

Gear, LLC, 21 F.4th 1229, 1252 (10th Cir. 2021) (internal quotation marks and citation 

omitted). “Plain” error has been called error so plain a court would be “derelict in 

countenancing it, even absent the defendant’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 enough 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 conviction. 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 nearly identical waiver in Loumoli as barring challenges to 

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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 reasoning, 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. Chatwin’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 intervening law. But Mr. Chatwin does not point to 

Loumoli to argue he was erroneously denied habeas relief based on an error committed at 

trial or sentencing; rather, he points to Loumoli to show the district court erred in 

dismissing his case based on his appeal waiver during the habeas proceedings. Put 

another way, we are not performing collateral 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)). 

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resulting in Mr. Chatwin’s sentence or conviction;6

 we are performing what the Supreme 

Court refers to as “direct review” of the district court’s procedural decision in a habeas 

case. Frady, 456 U.S. at 166 n.15 (explaining that, although plain error is not an 

appropriate standard on collateral review, it may be applied “by a court of appeals on 

direct review of a district court’s conduct of the § 2255 [proceedings]”). 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 district 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 been 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 error test, a defendant must “satisfy the 

judgment of the reviewing court, informed by the entire record, that the probability of a 

different result is sufficient to undermine confidence in the outcome.” United States v. 

Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal quotation marks and citation 

omitted). The Supreme Court has advised that the standard we apply to the third prong of 

plain error review “should enforce the policies that underpin Rule 52(b) generally, to 

encourage timely objections and reduce wasteful reversals by demanding strenuous 

6

 In the context of collateral review, the Supreme Court has explained that the 

review of an unpreserved trial error in habeas proceedings is governed by the rules of 

“cause and actual prejudice,” not plain error. United States v. Frady, 456 U.S. 152, 166 

(1982). 

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exertion to get relief for unpreserved error.” Id. at 82 (citation omitted). Among the 

factors we may consider is whether the error invaded a constitutional 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 complemented 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 review the merits in the first instance. 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 court 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 law, it is wasteful to remand 

for further proceedings in the district court. Complementing these observations is the fact 

that the claimed “plain error” is a mere procedural error 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 instructive. 556 U.S. 129, 140–41 (2009). In Puckett, the Supreme 

Court evaluated a procedural error at sentencing under the plain error standard and 

explained: 

A plea breach does not necessarily render a criminal trial fundamentally 

unfair or an unreliable vehicle for determining guilt or innocence; it does 

not defy analysis by harmless-error standards by affecting the entire 

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9 

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 citations omitted) (emphasis added). The 

majority rejected the dissent’s position that there 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 terms 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 substantial rights. Any trial error can be 

said to impair substantial rights if the harm is defined as “being convicted 

at a trial tainted with [fill-in-the-blank] error.” Nor does the fact that there 

is a “protected liberty interest” at stake render this case different. That 

interest is always at stake in criminal cases. Eliminating the third plainerror prong through semantics makes a nullity of Olano’s instruction that a 

defendant normally “must make a specific 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 merely 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 review 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. Our circuit precedent is the same. See, e.g., United 

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States v. Chavez-Morales, 894 F.3d 1206, 1216–17 (10th Cir. 2018) (holding plain 

procedural sentencing error failed prong three because it did not impact substantial 

rights); United States v. Begaye, 635 F.3d 456, 471 (10th Cir. 2011) (same); United 

States v. Mendoza, 543 F.3d 1186, 1194 (10th Cir. 2008) (same). 

In adopting a rule that a procedural error resulting in dismissal 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 error] 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 will not be entitled to relief. His argument that 

the predicate offense for his § 924(c) conviction was § 111(a) is meritless. Thus, even if 

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the dismissal was procedurally erroneous, it did not affect his substantial rights.7 This is 

not, as my colleagues suggest, an improper “rush to decide the merits”; it is 

straightforward third-prong plain error review. 

I do not advocate a full merits determination 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 also be that we are not well positioned to rule 

on the merits of some purely legal questions, whether because they have not been briefed 

or for other reasons. But where a claim has been briefed and is meritless as a matter of 

law, and no further factfinding by the district court could change that outcome, the 

procedural error was not prejudicial and therefore cannot meet the third plain error prong. 

7

 Even under de novo review, we deny remand for procedural 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 deportation proceedings the alien must show at least a reasonable 

probability that he would not have been deported in the absence of the error); Anderson v. 

United Tel. Co. of Kan., 933 F.2d 1500, 1503–04 (10th Cir. 1991) (determining that even 

if district court procedurally erred in granting a judgment notwithstanding the verdict on 

grounds not presented with sufficient specificity, 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 application for relief from deportation did not 

prejudice alien because he would not have prevailed on his arguments against deportation 

even had they been adjudicated). It is inconsistent with the varying difficulty imposed by 

our standards of review to remand on plain error where the appellant cannot, as a matter 

of law, succeed on the merits, but deny remand on de novo review. 

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Here, the indictment and the plea agreement conclusively resolve Mr. Chatwin’s 

claim. The predicate offense for his conviction 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 § 2255 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 brief 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) . . . , which this court has held does 

not categorically require the use of violent force.”). He devotes four pages of his 

appellate reply brief to this same argument. If Mr. Chatwin had other potentially 

meritorious arguments that might justify remand, the burden was his to present them to 

us. Gonzalez-Huerta, 403 F.3d at 733. He did not. Because 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. 

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C. Prong Four: The Error Was Not Egregious and Declining to Remand Would 

Not Result in a Miscarriage of Justice

Even if the alleged procedural error satisfied 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 error, such as the one in the case before us, 

unless it is both particularly egregious 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 marks and citations omitted) 

(emphasis added). We have previously noted that the Supreme Court “consistently 

applie[s]” the fourth plain 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 the 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 establishing 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 not 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 norm and there was no 

record evidence to support a lower sentence. Id. at 738–39. Third, the error did not 

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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 exclusionary rule, despite the rule’s foundation 

in the Fourth Amendment. 783 F.2d 971, 978 (10th Cir. 1986). We reasoned: 

[U]nder the plain error inquiry, reversal is mandated only to correct 

particularly egregious errors, those errors that seriously effect [sic] the 

fairness, integrity or public reputation of judicial proceedings. . . . Although 

an individual has a personal privacy interest in the protections of the Fourth 

Amendment, the exclusionary rule is a judicially 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 quotation marks and citations omitted) (emphasis added). 

My colleagues do not explain how Mr. Chatwin meets his burden on the fourth 

prong, stating simply, “Exercising our discretion, we conclude that the district court’s 

error affected the fairness of the judicial proceedings.” I would hold to the contrary that 

the error Mr. Chatwin alleges—enforcing 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 explained, the constitutional claim erroneously 

dismissed is meritless as a matter of law. If the errors in Gonzalez-Huerta or Mitchell

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were not “particularly egregious” even where they were contrary to Supreme Court 

authority or had clear constitutional 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 considering 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 deficiency on the way to the inevitable and 

proper denial of relief.8 Thus, I conclude the claimed error 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). 

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