United States v. Lara

United States Court of Appeals
For the First Circuit

No. 17-1957

UNITED STATES,

Appellee,

v.

VICTOR LARA, JR.,

Defendant, Appellant.

No. 17-1964

UNITED STATES,

Appellee,

v.

KOURTNEY WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Thompson, Stahl, and Barron,
Circuit Judges.

Luke S. Rioux for Victor Lara, Jr.
Jessica LaClair for Kourtney Williams.
 Benjamin M. Block, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.

August 12, 2020
 BARRON, Circuit Judge. In these consolidated appeals,

Victor Lara and Kourtney Williams challenge various federal

convictions -- and the resulting sentence -- that each received in

connection with a 2014 robbery in Maine. We affirm their

convictions, except for the one that each received for violating

18 U.S.C. § 924(c), which makes it a crime to use a firearm "during

and in relation to" a "crime of violence," id. § 924(c)(1)(A).

The reversal of those convictions requires that we also vacate

Lara's and Williams's sentences.

I.

Lara was arrested and detained on state charges by local

law enforcement authorities in Maine on August 6, 2014, and so,

too, was Williams days later on August 9. The arrests were made

in connection with the robbery that year in Minot, Maine, of the

residence of Ross Tardif, an alleged dealer of oxycodone and other

controlled substances.

A federal complaint in connection with the robbery of

Tardif's residence was filed in the District of Maine against Lara

on March 18, 2015, at which point the state charges against him in

connection with the robbery were dismissed and he was taken into

federal custody. Then, on April 7, 2015, a federal grand jury in

the District of Maine indicted both him and Williams, as well as

a third person, Ishmael Douglas, on federal criminal charges

arising out the robbery.

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 The federal indictment charged Douglas, Lara, and

Williams each with one count of conspiracy to possess with intent

to distribute controlled substances -- specifically,

oxycodone -- under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C);

one count of conspiracy to commit Hobbs Act robbery under 18 U.S.C.

§ 1951(a); and one count of use of a firearm during and in relation

to a "crime of violence" under 18 U.S.C. § 924(c)(1)(A)(ii). The

federal indictment also charged Williams and Douglas each with one

count of possession of a firearm by a felon under 18 U.S.C.

§§ 922(g)(1) and 924(e).

Over the course of the next roughly eighteen months,

Lara, Williams, and Douglas filed various pre-trial motions in the

District Court. Then, in August of 2016, Douglas entered a

conditional guilty plea to the counts for conspiracy to commit

Hobbs Act robbery and for violating § 924(c), and the remaining

charges against him were dismissed. Lara and Williams, however,

proceeded to trial, and the jury in their case returned its verdict

in September of 2016. The jury found them not guilty of conspiracy

to possess with intent to distribute a controlled substance in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C), but

guilty on the other counts. The District Court entered judgments

of convictions against both Lara and Williams and proceeded to

sentencing.

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 The District Court sentenced Lara to 100 months of

imprisonment for his conviction for conspiracy to commit Hobbs Act

robbery and eighty-four months of imprisonment for his conviction

for violating § 924(c), with each of these sentences to run

consecutively. Lara thus received a total prison sentence of 184

months. The District Court sentenced Williams to a 100-month

prison sentence for his conviction for conspiracy to commit Hobbs

Act robbery, which was to run concurrently with his fifty-month

prison sentence for his conviction for being a felon in possession

of a firearm and consecutively to his eighty-four-month prison

sentence for his conviction for violating § 924(c). Thus, like

Lara, Williams also received a 184-month prison sentence.

Both defendants filed timely appeals, which were

consolidated for our review.

II.

We start with the challenges that Lara and Williams each

bring to their convictions for use of a firearm "during and in

relation" to a "crime of violence." 18 U.S.C. § 924(c)(1)(A).

The alleged "crime of violence" was conspiracy to commit Hobbs Act

robbery. At the time that Lara and Williams were each convicted

of this offense, the applicable definition of a "crime of violence"

contained both a "force clause" and a "residual clause." See id.

§ 924(c)(3); see also United States v. Cruz-Rivera, 904 F.3d 63,

65 (1st Cir. 2018). The latter clause denominated as a "crime of

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violence" a felony "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." 18 U.S.C.

§ 924(c)(3)(B).1

After the parties filed their initial briefs to us in

these then-pending consolidated appeals, however, the United

States Supreme Court decided United States v. Davis, 139 S. Ct.

2319 (2019). In that case, the Court struck down the "residual

clause" as unconstitutionally vague. See id. at 2336. We

requested supplemental briefing to address Davis's impact, if any,

on Williams's and Lara's § 924(c) convictions. In their

supplemental briefs, Lara and Williams argue that in consequence

of Davis, conspiracy to commit Hobbs Act robbery does not qualify

as a "crime of violence" under § 924(c), because what remains of

the "crime of violence" definition does not encompass that offense.

The government agrees. We thus reverse the conviction pursuant to

§ 924(c) that Lara and Williams each received.

III.

We next consider a set of challenges based on various

instructional errors that Williams brings to his stand-alone

conviction for conspiracy to commit Hobbs Act robbery. Lara did

1
The "force clause" defines a "crime of violence" as a felony
that "has as an element the use, attempted use, or threatened use
of physical force against the person or property of another." 18
U.S.C. § 924(c)(3)(A).

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not make these challenges in his opening brief to us, but he

purports to join in them through his reply brief.

We assume Lara has not waived these challenges by raising

them only in his reply brief. See United States v. Mkhsian, 5

F.3d 1306, 1310 n.2 (9th Cir. 1993). But see United States v.

Leoner-Aguirre, 939 F.3d 310, 319 n.11 (1st Cir. 2019) (finding

arguments raised for the first time in a reply brief waived). For

ease of exposition, though, we describe these challenges as if

they are Williams's alone. We do so in part because Lara purported

to join in them merely in one sentence in his reply brief. He

thus gives no reason as to why his challenges do not rise and fall

with Williams's arguments, even if some of them were waived below

by representations that Williams's counsel made to the District

Court while representing his client alone.

A.

We start with the contention that the District Court

incorrectly instructed the jury that it only needed to find that

Williams intended to obtain "drugs or drug trafficking proceeds"

to find him guilty of conspiracy to commit Hobbs Act robbery.

Williams points out that the indictment charged him with having

"knowingly and intentionally conspired . . . to obstruct, delay

and affect commerce and the movement of articles in commerce,

namely illegal drugs and drug trafficking proceeds, by robbery"

but then added that, "[s]pecifically, the defendants agreed

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together and with others to steal Percocet (oxycodone) pills and

any proceeds from the trafficking of such illegal drugs." Williams

contends that the instruction constructively amended the

indictment by describing the object of the charged conspiracy too

generally. See United States v. Pierre, 484 F.3d 75, 81-82 (1st

Cir. 2007) (discussing constructive amendments).

The problem for Williams is that, in a colloquy that

preceded this instruction, the government proposed that the

District Court use the word "property" to describe the conspiracy's

object, and Williams's counsel proposed instead that the District

Court use the phrase "drugs or drug proceeds." Thus, Williams

targets language in the instruction that is not materially

different from the language that his counsel requested.

Accordingly, the challenge has been waived. See United States v.

Acevedo, 882 F.3d 251, 264 (1st Cir. 2018).

B.

Williams next challenges the response that the District

Court gave to a question that the jury asked during deliberations

about this same count. The jury's question related to a theory

that Williams had put forward at trial concerning a mismatch

between what the evidence at trial had showed to be the object of

the conspiracy and the object of the conspiracy charged in the

indictment. Specifically, Williams had argued at trial that the

evidence showed that the object of the conspiracy was inheritance

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money belonging to Tardif, while the indictment described its

object as "Percocet (oxycodone) pills and any proceeds from the

trafficking of such illegal drugs."

The jury's question was: "[C]an we convict on just

conspiracy, without convicting specifically under [H]obbs [A]ct

[r]obbery for oxycodone pills and proceeds (question of

inheritance as motive)?" The District Court responded: "[Y]ou

cannot convict either defendant under [this count] unless you find

that the defendant was part of [a] conspiracy that intended to

obtain drugs or drug trafficking proceeds . . . by robbery."

Williams does not dispute that the District Court's

response correctly instructed the jury that it could not find him

guilty on this count if the object of the conspiracy did not

concern "drugs" at all. But, he contends, the instruction still

wrongly instructed the jury, because it instructed the jury that

it could find him guilty of this count without finding that the

conspiracy's object concerned "Percocet (oxycodone)" specifically.

By describing the conspiracy's object as generally as the answer

to the jury's question did, Williams argues, the District Court

constructively amended the indictment. See Pierre, 484 F.3d at

81-82.

We agree with the government that here, too, waiver

stands in the way of Williams's challenge. See Acevedo, 882 F.3d

at 264. The record shows that the District Court discussed how to

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respond to the jury's question with counsel for both parties before

answering it and that Williams's counsel stated during that

colloquy that he "[a]greed" with the response that the District

Court gave.2

Williams separately challenges the District Court's

response to this question on the ground that it wrongly suggested

that the jury needed to find only that the conspiracy, rather than

Williams, intended to obtain drugs or drug trafficking proceeds.

See United States v. Gonzalez, 570 F.3d 16, 24 (1st Cir. 2009)

("Under our law, 'the requisite intent' needed for a conspiracy

conviction is that 'the defendant intended to join in the

conspiracy and intended the substantive offense to be committed.'"

(quoting United States v. Henderson, 320 F.3d 92, 110 (1st Cir.

2003))). But, because Williams's counsel agreed to the District

Court's response, this challenge, too, is waived. See Acevedo,

882 F.3d at 264.

Moreover, if this challenge is not waived, it is at least

forfeited. Thus, our review is at most only for plain error. See

United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000).

2 Williams contends that, after his counsel agreed to this
instruction, the attorney later told the District Court "I sort of
withdraw what I said previously." Based on this statement,
Williams argues that his challenge to the District Court's response
to the jury's question was not waived. But, the transcript reveals
that the attorney expressed this hesitance when discussing a
separate question that the jury had asked during its deliberations.

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To show an error of that kind, Williams must show, among other

things, that it was "clear or obvious." Gonzalez, 570 F.3d at 21.

But, prior to answering the jury's question, the District Court

instructed the jury that it needed to find that "the defendant

knowingly and willfully conspired to obtain drugs or drug

trafficking proceeds" in order to find Williams guilty of this

conspiracy offense. Thus, it is not "clear or obvious" that "[t]he

charge [to the jury], taken as a whole" failed adequately to

"convey[] the idea that [Williams] must have personally and

intentionally joined the agreement." Id. at 24.

C.

Williams's final challenge in this set of claimed

instructional errors rests on the contention that the District

Court engaged in impermissible factfinding in responding to a

separate question that the jury asked during its deliberations.

The question concerned the testimony of a key witness for the

government, Heidi Hutchinson, who both participated in the initial

conversations about the robbery of Tardif's residence and served

as the driver in carrying it out.

The jury asked the following question about the

testimony: "Does Heidi [Hutchinson] mention or imply in her

transcript that [Tardif] had Perc 30's [oxycodone]?" The District

Court replied: "Yes."

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 Williams points out that Hutchinson did not testify that

she had personal knowledge that Tardif had oxycodone. Instead,

she testified that a person named Myles Hartford, who had

participated in the initial conversations about robbing Tardif's

residence but who did not testify at trial, had said in her

presence that Tardif had oxycodone. Williams contends that the

District Court usurped the role of the jury by stating that

Hutchinson herself had "mention[ed]" or "impl[ied]" that Tardif

had oxycodone, when, in fact, the record shows that she testified

only that Hartford had made a representation in her presence that

Tardif had that drug.

Williams further contends that the District Court's

answer was highly prejudicial. He points out that Hutchinson had

participated in the robbery but that Hartford had backed out of

doing so. He contends that testimony from someone who participated

in the robbery that Tardif had oxycodone provided more support for

the jury finding that the object of the conspiracy concerned that

drug than did that same testimony from someone who ultimately

backed out of the robbery.

The parties dispute whether this challenge, too, was

waived below. But, it was at least forfeited, as Williams concedes

he failed to object below, and so our review is at most for plain

error. See Mojica-Baez, 229 F.3d at 311. Williams has failed to

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show, however, that the District Court's answer to the jury

constituted an error of that kind.

The District Court could have provided the jury with a

more precise description of Hutchinson's testimony. But,

Hutchinson did testify that Hartford said that Tardif had

oxycodone. We thus cannot say that the District Court's pithy

answer so mischaracterized Hutchinson's testimony that it

constituted, as the plain error standard requires in the absence

of contemporaneous objection, a "clear or obvious" error. See

United States v. Sabetta, 373 F.3d 75, 80-81 (1st Cir. 2004)

(finding no clear or obvious error on plain error review even

though the district court's response to a jury's question about

testimony was not "ideal").

IV.

We now turn to a challenge that Williams brings to an

evidentiary ruling that the District Court made at trial that he

contends requires that we vacate his conviction for conspiracy to

commit Hobbs Act robbery. Here, too, Lara did not bring this

challenge in his opening brief to us. He purports to join in it

solely through his reply brief. We once again assume that Lara

has not waived this challenge on appeal, though, again, we describe

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it -- for ease of exposition -- as if it has been brought by

Williams alone.3

In the evidentiary ruling at issue, the District Court

permitted the introduction at trial of Hutchinson's testimony

about statements that Hartford -- the person who Hutchinson had

said told her that Tardif had oxycodone -- made during the planning

phase of the conspiracy to commit the robbery. Williams argues

that it was wrong for the District Court to have done so, because

that testimony from Hutchinson was hearsay. We do not agree.

The District Court provisionally admitted Hutchinson's

testimony, in accordance with United States v. Petrozziello, 548

F.2d 20, 23 (1st Cir. 1977), under the co-conspirator hearsay

exception that Federal Rule of Evidence 801(d)(2)(E) sets forth.

That exception to the hearsay bar "provides that a statement made

by a defendant's coconspirator 'during the course of and in

furtherance of the conspiracy' may be introduced as the nonhearsay

admission of a party opponent." United States v. Ciresi, 697 F.3d

19, 25 (1st Cir. 2012) (quoting Fed. R. Evid. 801(d)(2)(E)). The

District Court then later ruled -- after the close of

evidence -- that Hutchinson's testimony about what Hartford had

said in her presence was admissible under that same exception.

3 While Lara does develop this challenge to an extent on his
own in his reply brief, his arguments overlap with those raised by
Williams. Thus, here as well we describe the arguments as if they
are the contentions of Williams alone.

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 We review preserved challenges to the admission of

statements under Rule 801(d)(2)(E) for either clear error or abuse

of discretion. United States v. Merritt, 945 F.3d 578, 586 (1st

Cir. 2019). We need not decide which standard applies in this

case, as Williams's challenge fails under either standard. See

id.

The District Court summarized Hutchinson's testimony as

relating to statements that Hartford made "on or around July 26th

of 2014, both in-person at Hutchins[on's] apartment and then

subsequently over the phone." The District Court further explained

that:

The substance of the hearsay included the idea
that Ross Tardif's house would be a good
target for a robbery because Hartford knew
Tardif to be a drug dealer who had money and
drug proceeds in his house, and also that
Hartford described the layout of the inside of
Tardif's house, which is information which
would be important to planning a robbery.

Hutchinson testified, for instance, that Hartford "came

up with the idea that he knows somebody [named Ross Tardif] that

he used to get drugs off of that has money and drug proceeds in

his house," and that Hartford proposed robbing Tardif's house.

Hutchinson also testified that Lara, Williams, and Hartford agreed

that they "were gonna go into Ross's house and rob him," although

there is no dispute that the record shows that Hartford ultimately

backed out and did not participate in the robbery.

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 Williams does not make clear which precise portions of

Hutchinson's testimony he is contending were inadmissible as

hearsay. But, the testimony described above potentially

undermined Williams's defense at trial that the government had

failed to show that -- as the indictment alleged -- the conspiracy

to rob Tardif's residence had as its object obtaining Percocet

(oxycodone) pills and drug trafficking proceeds rather than money

that Tardif had inherited.

In challenging the admission of the testimony, Williams

rightly contends that, to admit out-of-court statements made by a

defendant's co-conspirator that otherwise would be barred as

hearsay, a district court "must determine by a preponderance of

the evidence that the declarant and the defendant were members of

the same conspiracy and that the statement was made in furtherance

of the conspiracy." Merritt, 945 F.3d at 586 (quoting United

States v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015)). He also

rightly contends that the government could not rely solely on

Hutchinson's testimony about Hartford's statements to determine

that Hartford was a member of the same conspiracy as Williams,

such that Hartford's statements could be admitted pursuant to the

co-conspirator exception to the hearsay bar. See United States v.

Piper, 298 F.3d 47, 52 (1st Cir. 2002) (explaining that

"coconspirator statements are not deemed self-elucidating").

Williams then winds up this challenge by arguing that the District

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Court erred because there was insufficient corroborating evidence

that Hartford was a member of the same conspiracy as the one in

which Williams was alleged to have been a participant.

To support this contention, Williams first asserts that

the evidence shows that Hartford was not involved in the robbery

conspiracy at all -- whatever its object -- because he did not

participate in the robbery itself. But, that contention is without

merit, as a conspirator's "culpability may be constant though

responsibilities are divided" and thus "the government does not

need to show . . . that a given defendant took part in all aspects

of the conspiracy." United States v. Sepulveda, 15 F.3d 1161,

1173 (1st Cir. 1993).

Williams also suggests that even if Hartford initially

participated in the conspiracy, he then withdrew from it well

before the robbery occurred by ignoring the defendants' phone calls

and not otherwise manifesting any involvement in it thereafter.

But, that contention is also mistaken. Williams does not argue

that Hartford ever "act[ed] affirmatively either to defeat or

disavow the purposes of the conspiracy," Leoner-Aguirre, 939 F.3d

at 318 (quoting Ciresi, 697 F.3d at 27); see also Piper, 298 F.3d

at 53 (explaining that withdrawal typically "requires 'either

. . . a full confession to authorities or a communication by the

accused to his co-conspirators that he has abandoned the enterprise

and its goals'" (alteration in original) (quoting United States v.

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Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987))), and Hartford's

"[m]ere cessation of activity in furtherance of the conspiracy

does not constitute withdrawal," Leoner-Aguirre, 939 F.3d at 319

(alteration in original) (quoting Ciresi, 697 F.3d at 27).

That leaves only Williams's contention that, even if

Hartford participated along with him in the conspiracy to rob

Tardif's residence, the evidence did not show by a preponderance

that they both conspired to commit that robbery to obtain Percocet

(oxycodone) and drug trafficking proceeds, because of the evidence

that indicated that at least one of them conspired at most to rob

the residence to obtain Tardif's inheritance money.4 Thus,

Williams contends the record does not show by a preponderance that

he and Hartford belonged to the same conspiracy.

To support this contention, Williams highlights the fact

that Hutchinson testified that she herself had no

knowledge -- apart from what she testified Hartford said in her

presence -- that Tardif sold oxycodone. Williams also points out

that Douglas, his co-defendant who pleaded guilty to conspiracy to

4
"[T]he rigors of Rule 801(d)(2)(E) may be satisfied by
showing that both the declarant and the defendant belonged to some
conspiracy other than the substantive conspiracy charged in the
indictment." Piper, 298 F.3d at 54-55 (citing United States v.
Lara, 181 F.3d 183, 196 (1st Cir. 1999)). But, here, the
government did not argue that Hartford's statements were
admissible based on the broader conspiracy to rob Tardif's house.
So we assume, as Williams argues, that the government had to show
that he and Hartford shared the goal to rob oxycodone and drug
proceeds, specifically.

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commit Hobbs Act robbery in connection with the robbery of Tardif's

residence, testified that Williams's goal was to steal inheritance

money. Finally, Williams notes that the record shows that no

Percocet (oxycodone) pills were taken from Tardif's residence

during the robbery.

But, under the deferential standard of review that we

must apply -- whether abuse of discretion or clear error -- the

record suffices to support the District Court's finding that the

preponderance of the evidence shows that the object of the

conspiracy of which Williams was a part concerned Percocet

(oxycodone) and drug trafficking proceeds. Hutchinson testified,

in statements that are not challenged on appeal, that during

meetings to plan the robbery, Lara and Williams discussed that

they intended to get "Perc 30s" -- oxycodone -- from Tardif's house

and "to sell them to get money." Additionally, the government

points out that a victim of the robbery testified that the robbers

entered the home yelling "DEA, DEA" and asked repeatedly "where's

the shit?"

Moreover, whether our review is for abuse of discretion

or clear error, the evidence also sufficed to support the District

Court's finding that a preponderance of the evidence showed that

Hartford was a member of that same conspiracy. Tardif testified

that he was a known Percocet (oxycodone) dealer, that he had been

selling drugs for years prior to the robbery, and, critically,

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that Hartford had previously tried to buy drugs from him. That

testimony in turn corroborated Hartford's statement to Williams

and Lara, just before they agreed to rob Tardif, that he knew that

Tardif sold drugs and that he had drug money in his house.

Moreover, Hutchinson testified, based on her own recollection,

that Hartford "masterminded" the robbery and that he was one of

the people who was in the room during the planning meetings. Thus,

considering the evidence as a whole, a reasonable factfinder

supportably could determine that it was more likely than not that

all the participants in the conspiracy were after Tardif's Percocet

(oxycodone) rather than his inheritance money.

Accordingly, to the extent that the challenged testimony

is hearsay, we find that the District Court did not abuse its

discretion or clearly err in admitting Hutchinson's testimony

about Hartford's statements under Rule 801(d)(2)(E). We thus

reject this ground for challenging Williams's conviction for

conspiracy to commit Hobbs Act robbery.

V.

Lara alone brings the next challenge that we address,

which takes aim at all his convictions. He contends that his right

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under the Sixth Amendment to the United States Constitution to a

speedy trial on his federal charges was violated.5

The Sixth Amendment guarantees that all criminal

defendants "shall enjoy the right to a speedy and public trial."

U.S. Const. amend. VI. "If the government violates this . . .

right, [then] the criminal charges must be dismissed." United

States v. Dowdell, 595 F.3d 50, 60 (1st Cir. 2010).

To assess whether a defendant's Sixth Amendment right

has been violated, we consider four factors: (1) "the length of

delay"; (2) "the reason assigned by the government for the delay";

(3) "the defendant's responsibility to assert his right"; and

(4) "prejudice to the defendant, particularly 'to limit the

possibility that the defense will be impaired.'" United States v.

Handa, 892 F.3d 95, 101 (1st Cir. 2018) (quoting Barker v. Wingo,

407 U.S. 514, 532 (1972)).

Lara does not dispute that our precedent requires that

we apply the abuse of discretion standard to review this claim.

See id. (noting that the abuse of discretion standard is "in

tension with the rules of other circuits, as well as this circuit's

5 Lara also alleges a violation of his right to due process
under the Fifth Amendment to the United State Constitution on the
same basis, but, because he offers no distinct arguments to support
his Fifth Amendment claim, we analyze both of his claims in
parallel under the Sixth Amendment framework. We note as well
that Lara does not allege a violation of the Speedy Trial Act, see
18 U.S.C. §§ 3161-3174, to this Court, and that the District Court
found that he had waived any claim under that statute.

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standard of review when considering other similar issues" (quoting

United States v. Irizarry-Colón, 848 F.3d 61, 68 (1st Cir. 2017))).

We thus conduct our review under that relatively deferential

standard.

A.

The inquiry into the first factor -- delay -- entails

what amounts to a "double enquiry," as delay is "both . . . a

'triggering mechanism for the rest of the [speedy trial] analysis,

and a factor in that analysis.'" Id. (second alteration in

original) (first quoting Doggett v. United States, 505 U.S. 647,

651 (1992), and then quoting United States v. Carpenter, 781 F.3d

599, 609 (1st Cir. 2015)). We thus first ask in assessing the

delay factor whether "the time between accusation . . . and trial

'has crossed the threshold dividing ordinary from presumptively

prejudicial delay.'" Id. (quoting Irizarry-Colón, 848 F.3d at

68). If the delay does, then we must further ask how long it

lasted. See id.

Delays of around a year or longer are presumptively

prejudicial. Id. In the event of such a delay, we balance all

four of the factors to determine whether there has been a

violation, as none carries "any talismanic power." Dowdell, 595

F.3d at 60.

The parties agree that the delay before Lara's trial on

the federal charges was itself at least one year and thus

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presumptively prejudicial. See Handa, 892 F.3d at 101. But, Lara

contends the delay should be measured from the time of arrest on

the state charges in August of 2014, because he contends that

"federal investigators were involved," even at that early point.

Thus, he contends that he experienced a delay of about twenty-five

months before the commencement of his trial in September of 2016,

and that the District Court, which measured the period of pre-

trial delay from the time of his federal arrest in March of 2015,

erred in finding that the delay was only seventeen months and

twenty days.

In Dowdell, however, we held that "[t]he speed of a

federal trial is measured from the federal accusation on which it

is based." 595 F.3d at 62. Moreover, Dowdell explained that this

general rule applies even when a "federal indictment was

essentially a continuation of . . . state proceedings." Id.

Lara counters that Dowdell was based on dual sovereignty

concerns rooted in the Double Jeopardy Clause and that we have

subsequently cast "skepticism" on an attempt to "import Double

Jeopardy principles into our Sixth Amendment speedy trial

jurisprudence." Handa, 892 F.3d at 105. But, while Dowdell

recognized that the dual sovereignty principles it was applying

were "perhaps most recognizable from the double jeopardy context,"

it expressly held that the same principles "animate our

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constitutional speedy trial jurisprudence, as well." 595 F.3d at

61.

Nor is our subsequent decision in Handa to the contrary.

To the extent that we expressed "skepticism" about importing Double

Jeopardy principles into the speedy trial analysis in that case,

we did so only in rejecting the government's contention that a

federal charge added in a superseding federal indictment "reset[]

the speedy trial clock as to that charge so long as, under Double

Jeopardy principles, the additional charge is not for the 'same

offense' as one of the original charges." 892 F.3d at 105

(footnote omitted); see also id. at 100-01. Thus, Handa accords

with Dowdell.

Lara also argues that Dowdell does not control the way

that we must measure the delay in this case because it was based

on a misreading of United States v. MacDonald, 456 U.S. 1 (1982),

which he contends "stands for the proposition that the right [to

a speedy trial] attaches at the time of accusation -- not

necessarily [the] federal accusation." He thus appears to argue

that, under a proper reading of MacDonald, his speedy trial right

attached at the time of the state accusation, because he was in

continuous custody from the time at which the state charges were

filed in August of 2014 until his trial in September of 2016. Not

so. We are bound by Dowdell under the law-of-the-circuit doctrine,

see United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018),

- 24 -
and, in any event, Dowdell itself recognized that MacDonald

expressly noted that "an arrest or indictment by one sovereign

would not cause the speedy trial guarantees to become engaged as

to possible subsequent indictments by another sovereign," 595 F.3d

at 61 (quoting MacDonald, 456 U.S. at 10 n.11).6

Lara's last argument for concluding that the delay was

much greater than roughly eighteen months rests on cases that have

concluded that a superseding federal indictment does not reset the

speedy trial clock. See, e.g., Handa, 892 F.3d at 102-04. But,

these cases are entirely consistent with the conclusion, based on

Dowdell, that his state charges are irrelevant to when the speedy

clock starts here.

Thus, we agree with the District Court that Lara

experienced a delay of about eighteen months. We have

characterized such a delay as "not at the extreme end of the

spectrum" but one that might nevertheless weigh somewhat in the

defendant's favor in the overall calculus. United States v. Souza,

749 F.3d 74, 82 (1st Cir. 2014). The government does not disagree.

6
We have noted that a limited exception to this rule may
exist where a "state prosecution is 'merely a tool of the federal
authorities'" and thus "one sovereign was a pawn of the other."
Dowdell, 595 F.3d at 63 (first quoting Bartkus v. Illinois, 359
U.S. 121, 123-24 (1959), then quoting United States v. Guzman, 85
F.3d 823, 827 (1st Cir. 1996)). But, Lara does not argue that
this exception applies in his case.

- 25 -
We proceed on that understanding in moving on to the next factor

under the speedy trial test.

B.

This second factor concerns the explanation for the

delay, and it is the "focal inquiry." Id. (quoting United States

v. Munoz-Franco, 487 F.3d 25, 60 (1st Cir. 2007)). The District

Court found that the primary causes of the delay were the pre-

trial motions filed by Lara's co-defendants and Lara's

unsuccessful motion to sever.7 Lara does not identify any evidence

that the delay was a product of bad faith or inefficiency on the

government's part. Thus, because the delay is "largely due to the

needs of codefendants, rather than any slothfulness on the

government's part," this second factor points against finding a

speedy trial violation. United States v. Vega Molina, 407 F.3d

511, 533 (1st Cir. 2005); see also United States v. Casas, 425

F.3d 23, 34 (1st Cir. 2005) ("[T]he joint prosecution of defendants

involved in the same drug trafficking conspiracy is justified as

a means of serving the efficient administration of justice.

Accordingly, we find that the reasons for the delay are sound and

weigh against a finding of Sixth Amendment violation.").

7
As the District Court found, Lara's two co-defendants filed
numerous motions to extend the time for filing pre-trial motions,
a motion to reopen a detention hearing, a motion to suppress,
motions to sever, a partial motion to dismiss, motions in limine,
a motion to continue the trial date, and a change in plea.

- 26 -
 C.

The third factor concerns whether the defendant asserted

the speedy trial right. The government concedes that Lara

repeatedly did so in the District Court. Thus, this factor points

in Lara's favor.

D.

The fourth and final factor concerns prejudice. The

Court has recognized three types of prejudice: "'oppressive

pretrial incarceration,' 'anxiety and concern of the accused,' and

'the possibility that the [accused's] defense will be impaired' by

dimming memories and loss of exculpatory evidence." Doggett, 505

U.S. at 654 (alteration in original) (quoting Barker, 407 U.S. at

532). Lara asserts that his case was affected by all three, but

he focuses his arguments to us on the third type, which concerns

the extent to which the delay impaired his defense.

Lara first notes that Hartford, who Hutchinson testified

had participated in the planning stages of the robbery before

backing out, died before trial. But, Hartford died in December

2014, prior to Lara's federal indictment in 2015. Thus, the delay

itself could not have prejudiced Lara in that regard.

Lara also argues that the government's case was

unusually dependent on witness testimony. But, his contention

that the delay impacted witness's memories is almost entirely

speculative, and "[t]he passage of time alone . . . is not

- 27 -
conclusive evidence of prejudice." United States v. Colombo, 852

F.2d 19, 26 (1st Cir. 1988). To the extent that he makes any

concrete argument on this front, he contends that the witness

testimony was inconsistent. These assertions are not backed up,

however, with any specific instances of inconsistencies.

Lara does argue that one important government

witness -- Douglas, the co-defendant who pleaded guilty before

trial -- agreed to testify only on the eve of trial. But, the

fact that a witness did testify as a result of the delay is not,

at least on its own, the sort of prejudice that the speedy trial

right is designed to protect against. See United States v.

Trueber, 238 F.3d 79, 91 (1st Cir. 2001) ("[The defendant] does

not point to a single authority to support the novel proposition

that the potential strength the government's case may acquire over

time amounts to prejudice against the defendant."); United States

v. Abad, 514 F.3d 271, 275 (2d Cir. 2008) (noting that the

procurement of cooperating witnesses during a delay "does not, on

its own, amount to prejudice" in the speedy trial analysis).

Finally, Lara argues that he faced prejudice of the first

two types -- "oppressive pretrial incarceration" and "anxiety and

concern of the accused." Doggett, 505 U.S. at 654. But, he points

to no case where we have found that a defendant was prejudiced

when there was a delay of this duration, no evidence of bad faith

by the government, and no evidence that the defense was impaired.

- 28 -
Thus, this factor points against finding a speedy trial right

violation.

E.

Putting the full speedy trial analysis together, this

case is not unlike those in which we have found no speedy trial

right violation. See Vega Molina, 407 F.3d at 533 (no violation

where an eighteen-month delay was caused by co-defendants and did

not cause prejudice). We thus reject this challenge.

VI.

The final challenge to a conviction that we must address

concerns Williams's under 18 U.S.C. § 922(g)(1) for being a felon

in possession of a firearm. Section 924(a)(2) provides that

"[w]hoever knowingly violates" certain subsections of § 922,

including the subsection at issue in this

case -- § 922(g) -- "shall be fined . . . , imprisoned not more

than 10 years, or both." Id. § 924(a)(2) (emphasis added). In

turn, § 922(g) provides that it is "unlawful for any person . . .

who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to . . . possess

. . . any firearm." Id. § 922(g)(1).

Following Williams's conviction for this offense and the

parties' filing of their initial briefs, the United States Supreme

Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019).

There, the Court held that the word "knowingly" in § 924(a)(2),

- 29 -
when applied to the elements of the crime listed in § 922(g)(1),

required the government to show not only "that the defendant knew

he possessed a firearm" but "also that he knew he had the relevant

status when he possessed it." 139 S. Ct. at 2194, 2196. We asked

Williams and the government to address the impact of Rehaif on

Williams's felon-in-possession conviction in their supplemental

briefs.

Based on Rehaif, Williams contends, on a number of

distinct grounds, that his felon-in-possession conviction cannot

stand. First, he contends that insufficient evidence supported

the conviction, because there was insufficient evidence to satisfy

the knowledge-of-status element. Second, he argues that the

indictment was deficient because it neither referenced § 924(a)(2)

nor otherwise indicated that the government needed to show

Williams's knowledge of his status as a felon at the time of his

firearms possession. Finally, he contends that the jury

instructions did not mention the knowledge-of-status element of

the offense.

Courts throughout the country have been grappling with

similar challenges in the wake of Rehaif, as their precedent, like

ours, did not require proof of knowledge of status prior to Rehaif.

See, e.g., United States v. Maez, 960 F.3d 949, 953 (7th Cir.

2020). These challenges raise a number of questions about, in

particular, the application of the plain error standard of review,

- 30 -
which provides that a clear or obvious error should be corrected

if it "seriously affects the fairness, integrity or public

reputation of judicial proceedings." Rosales-Mireles v. United

States, 138 S. Ct. 1897, 1905 (2018) (quoting Molina-Martinez v.

United States, 136 S. Ct. 1338, 1343 (2016)); see, e.g., United

States v. Johnson, 963 F.3d 847, 851-54 (9th Cir. 2020)

(considering what evidence an appellate court should review when

addressing a Rehaif-based challenge on plain error review); Maez,

960 F.3d at 959-66 (collecting cases and holding that, when

reviewing Rehaif-based challenges to indictments and jury

instructions under prong four of plain error review, an appellate

court may consider evidence that was not before, respectively, the

grand jury and jury). We consider each of the three Rehaif-based

challenges that Williams brings in turn, though we find that none

supplies a basis for overturning the conviction.

A.

Williams first argues that there was insufficient

evidence to convict him of violating § 922(g)(1) and § 924(a)(2)

because, based on the evidence introduced at trial, no rational

juror could have found the knowledge-of-status element of the

offense that Rehaif now makes clear a jury must find. When

considering sufficiency challenges that are properly preserved, we

examine the record evidence "in the light most favorable to the

prosecution" and determine whether, considered in that light, the

- 31 -
"body of proof, as a whole, has sufficient bite to ground a

reasoned conclusion that the government proved each of the elements

of the charged crime beyond a reasonable doubt." United States v.

Lara, 181 F.3d 183, 200 (1st Cir. 1999). But, Williams did not

raise this challenge below, and so he must show that there was a

"clear and gross injustice," United States v. Morel, 885 F.3d 17,

22 (1st Cir. 2018) (quoting United States v. Marston, 694 F.3d

131, 134 (1st Cir. 2012)), which means that he must show at a

minimum that the evidence was plainly insufficient to support the

conviction, United States v. Valenzuela, 849 F.3d 477, 484 (1st

Cir. 2017) (explaining that the "clear and gross injustice"

standard is a "particularly exacting variant of plain error review"

(quoting United States v. Foley, 783 F.3d 7, 12 (1st Cir. 2015))).

He has not done so.

The evidence that the jury considered included, as the

government notes, a stipulation that "Williams had been previously

convicted of at least one crime punishable by a term of

imprisonment exceeding one year." It also included, the government

adds, both Hutchinson's testimony that Williams asked her to

purchase ammunition for him about a week before the robbery because

he claimed that he did not have identification and her testimony

that he asked her to store two firearms for him after the robbery.

Thus, we agree with the government that the record was not so

clearly insufficient that affirming the verdict would work a clear

- 32 -
and gross injustice, given the inference that the jury could have

drawn about Williams's knowledge of his status as a felon at the

time of his possession of the firearms from the fact that it knew

that he was a felon at that time and the testimony that it had

heard about his requests that Hutchinson purchase the ammunition

and store the firearms. See Maez, 960 F.3d at 967 (finding

sufficient evidence under de novo review to uphold a § 922(g)

conviction after Rehaif based on the defendant's stipulation and

"evasive behavior" when law enforcement conducted a search and

found firearms).

B.

Williams next trains his focus on the indictment, which

was handed up by the grand jury prior to Rehaif. It stated in

relevant part:

On about August 2, 2014, in the District of
Maine, the Defendant, Kourtney Williams[,]
having been convicted of the following crimes
punishable by a term of imprisonment exceeding
one year, specifically, [three counts of
Larceny from a Person and four counts of
Assault with a Dangerous Weapon in violation
of Massachusetts law, and three counts of
Assault and one count of Robbery with a
Dangerous Weapon in violation of Maine law]
knowingly possessed, in and affecting
commerce, two firearms, specifically, [two 9mm
semi-automatic pistols]. Thus, the Defendant
violated Title 18, United States Code,
Sections 922(g)(1) and 924(e).

Williams contends that the indictment did not charge him with the

felon-in-possession offense, because it failed to allege, per

- 33 -
Rehaif, that he had knowledge of his status as a felon at the time

of his firearms possession.

As an initial challenge, Williams contends that the

District Court had no jurisdiction to enter a judgment of

conviction for this felon-in-possession offense due to this defect

in the indictment. He further contends that, because a challenge

to a jurisdictional defect in an indictment is not subject to

waiver or forfeiture, the government is wrong to argue that this

challenge is subject to plain error review. See Mojica-Baez, 229

F.3d at 311.

Williams's jurisdictional challenge rests entirely on a

passage in United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir.

2003), in which we stated that "[a] federal court . . . lacks

jurisdiction to enter a judgment of conviction when the indictment

charges no offense under federal law." Id. at 36. But, we have

subsequently explained that this passage's reference to

"jurisdiction" was "an awkward locution" that "used the word

'jurisdiction' to refer to what the court considered a non-waivable

defect . . . not to the district court's power to adjudicate the

case." United States v. George, 676 F.3d 249, 259-60 (1st Cir.

2012); see also id. at 259 (explaining that courts have sometimes

used the term jurisdiction colloquially). As the United States

Supreme Court has explained, "defects in an indictment do not

deprive a court of its power to adjudicate a case." United States

- 34 -
v. Cotton, 535 U.S. 625, 630 (2002). For that reason, in United

States v. Burghardt, 939 F.3d 397 (1st Cir. 2019), we found the

district court had jurisdiction to accept the defendant's plea of

guilty to being a felon in possession of a firearm even though the

indictment, like Williams's, failed to allege that the defendant

had known he was a felon when he possessed the firearm. Id. at

400, 402. Thus, the District Court had jurisdiction here.

Williams separately contends that, even still, the

indictment was deficient and that our review is not for plain

error, as the government argues it is. He bases this contention

on his assertion that the indictment's omission of the reference

to the "knowingly" element of the offense constituted a structural

error, because he contends that it violated both his right under

the Fifth Amendment to the United States Constitution to be

indicted by a grand jury and his right under the Sixth Amendment

to the United States Constitution to be informed of the accusation

against him. See United States v. Rivera-Rodriguez, 617 F.3d 581,

604 (1st Cir. 2010) (explaining that the Supreme Court "has

classified an error as structural in only a very limited class of

cases," such as when there was a "complete denial of counsel,

presence of a biased trial judge, racial discrimination in the

selection of a grand jury, denial of self-representation at trial,

denial of a public trial, and offering a defective reasonable doubt

- 35 -
instruction" (quoting United States v. Fazal-Ur-Raheman-Fazal, 355

F.3d 40, 48 (1st Cir. 2004))).

The plain error standard of review applies, however,

even to challenges to structural errors if they were not raised

below. See Johnson v. United States, 520 U.S. 461, 466 (1997).

Thus, we must consider whether Williams can show that there was a

plain error here due to the Rehaif-based defect in the indictment

that he highlights.

We agree with Williams that the first two prongs of the

plain error standard -- "(1) an error, (2) that is clear or

obvious," United States v. Correa-Osorio, 784 F.3d 11, 18 (1st

Cir. 2015) -- are met. The indictment clearly failed to allege an

element of the offense. See Hamling v. United States, 418 U.S.

87, 117 (1974). The indictment references § 924(e) but not

§ 924(a)(2), which contains the language that sets forth the

knowledge-of-status element. And while the indictment uses the

word "knowingly" in describing the offense, it uses that word to

modify only "possessed . . . two firearms." The indictment thus

charged Williams only with knowledge of possession of the firearms,

not knowledge of his status as a felon at the time of his possession

of the firearms. See Rehaif, 139 S. Ct. at 2196. Accordingly, we

are not persuaded by the government's argument that there was no

clear or obvious defect here. See Henderson v. United States, 568

U.S. 266, 268-69 (2013) (explaining that an error can be "plain"

- 36 -
under Federal Rule of Criminal Procedure 52(b) if it is plain at

"the time of appellate review").

The third prong of the plain error standard requires

that the defendant show that a clear and obvious error "affect[ed]

his substantial rights." Correa-Osorio, 784 F.3d at 18. To make

that showing, a defendant must ordinarily "'show a reasonable

probability that, but for the error,' the outcome of the proceeding

would have been different." Molina-Martinez, 136 S. Ct. at 1343

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82

(2004)).

In Mojica-Baez, we reserved the possibility that an

indictment that omits an element might constitute structural error

for failing to provide the defendant fair notice of the offense

that he was charged with violating. 229 F.3d at 310-11. Here,

Williams's indictment, unlike the indictment in Mojica-Baez, did

not include a reference to the statutory provision that contained

the element that it omitted. See id. at 310. Nevertheless, we

need not decide whether Williams is right that, in consequence,

the error is structural, such that Williams need not show the

omission affected his substantial rights. For, we still must

assess whether the error "seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings," Cotton,

535 U.S. at 632-33; see also Mojica-Baez, 229 F.3d at 310, and we

conclude that it does not.

- 37 -
 The indictment presented to the grand jury identified

the following crimes of which Williams had been convicted that

were punishable by a term exceeding one year: one count of Larceny

from a Person under Massachusetts law, of which he was convicted

on November 26, 2007; four counts of Assault with a Dangerous

Weapon under Massachusetts law, of which he was convicted on

September 22, 2008; two counts of Larceny from a Person under

Massachusetts law, of which he was convicted on September 22, 2008;

and three counts of Assault and one count of Robbery with a

Dangerous Weapon under Maine law, of which he was convicted on

September 20, 2013. In light of at least the four relatively

recent and serious Maine convictions,8 as well as the judgment and

8 Williams argued after briefing was complete that his
Massachusetts convictions were not for felony offenses and that at
least four of the convictions -- the three counts of Assault and
one count of Robbery with a Dangerous Weapon under Maine law -- do
not show that he knew of his status as a felon at the time of his
firearms possession because he tendered a plea of nolo contendere
to each of these offenses. It is not clear that his arguments on
this point are directed at his indictment challenge, let alone at
the fourth prong of plain error review with respect to that
challenge. But, in addition to the fact that they are waived
because he made them so late, see Leoner-Aguirre, 939 F.3d at 319
(finding arguments raised after the completion of briefing
waived), they are also undeveloped, as he points to no case law to
support the conclusion that a conviction based on a nolo plea
precludes a conviction for a felony offense from constituting a
conviction for a felony under Maine law or for the conclusion that,
because he entered a nolo plea to those crimes, he would not have
known that the felonies of which he was convicted in consequence
of the nolo pleas were felonies, see United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

- 38 -
commitment order for them -- in which Williams signed off that he

had received a copy of the order and understood the sentence

(eighteen months for each conviction, to run concurrently) that

had been imposed -- "the grand jury" "[s]urely" "would have also

found" the omitted element.9 Cotton, 535 U.S. at 633; see also

Johnson, 963 F.3d at 851-54; Maez, 960 F.3d at 966. His conclusory

assertions that a defendant's state of mind is hard to prove and

that the nature of his prior convictions was ambiguous do not show

otherwise. Nor does he develop any argument as to how the lack of

notice stemming from the omitted knowledge-of-status element

mattered, given this evidence of his prior criminal history.

To be sure, this is not a case where the defendant slept

on his rights, but, like Mojica-Baez, it also not one "where the

prosecutor failed to indict in accordance with the current state

of the law." Mojica-Baez, 229 F.3d at 310. Rather, it is a case

where the "indictment . . . was entirely proper at the time" that

it was put before the grand jury, as "[n]either the prosecution

nor defense counsel . . . anticipated that the Supreme Court would

rule as it did in [Rehaif]." Id. Here, as there, we conclude

9 Williams notes that this evidence was not introduced at
trial. But, he fails to develop an argument for why the fact that
the petit jury was unable to consider this evidence bears on the
question of whether it is appropriate for us to take this evidence
into account in deciding whether the omission of the knowledge-
of-status element from the indictment issued by the grand jury
constitutes plain error. See Zannino, 895 F.2d at 17.

- 39 -
that the defect in the indictment is not one that must be corrected

on plain error review, id. at 307-12; see also Cotton, 535 U.S. at

633, because the evidence that the element that was omitted has

been satisfied is nevertheless "'overwhelming' and 'essentially

uncontroverted'" and thus "there [is] 'no basis for concluding

that the error seriously affected the fairness, integrity or public

reputation of judicial proceedings,'" Cotton, 535 U.S. at 633

(quoting Johnson, 520 U.S. at 470).

C.

Williams's final Rehaif-based challenge to his felon-

in-possession conviction is to the District Court's instructions

on the elements of this offense. Those instructions, which were

given prior to Rehaif, did not include a reference to the

knowledge-of-status element of the offense. Williams did not

object to the jury instructions, however, and he makes no argument

on appeal for why the plain error standard would not apply to our

review of this claim. Thus, we again conduct our review only for

plain error, see United States v. Pennue, 770 F.3d 985, 989 (1st

Cir. 2014), and we again find none.

The government concedes that the failure to instruct the

jury on the knowledge element was clearly wrong under Rehaif. The

only questions on appeal, therefore, concern prongs three and

four -- whether Williams has shown both that the error "affected

[his] substantial rights" and that it "seriously impaired the

- 40 -
fairness[,] integrity, or public reputation of judicial

proceedings." United States v. Severino-Pacheco, 911 F.3d 14, 20

(1st Cir. 2018) (quoting United States v. Perretta, 804 F.3d 53,

57 (1st Cir. 2015)).

At trial, the government did not introduce any evidence

of Williams's prior convictions beyond the stipulation, which the

government entered into on the correct understanding that, under

our then-prevailing precedent, it did not need to prove the

defendant's knowledge of his status of being a felon at the time

of his possession of the firearms. See Burghardt, 939 F.3d at 402

n.3; United States v. Miller, 954 F.3d 551, 559-60 (2d Cir. 2020).

But, as noted, the government had available to it evidence of

Williams's four recent and serious convictions from Maine, the

judgment and commitment order for those convictions, and

Williams's acknowledgement in that order that he had received it

and understood his sentence.

That evidence, it is true, is not in the trial record.

We note, however, that we regularly take judicial notice of such

state court records given their presumed reliability. See, e.g.,

United States v. Mercado, 412 F.3d 243, 247 (1st Cir. 2005); see

also Fed. R. Evid. 201(b)(2).

Moreover, the Supreme Court has never suggested that we

are categorically barred from taking into account evidence not

introduced at trial in considering whether an instructional error

- 41 -
satisfies the fourth prong of plain error review. Rather, it has

indicated that the hurdles such review imposes are intended in

large part to "reduce wasteful reversals." United States v.

Dominguez Benitez, 542 U.S. 74, 75 (2004); see also United States

v. Morosco, 822 F.3d 1, 21 (1st Cir. 2016) (holding that, for a

defendant to show plain error, there must at least be a "threat of

a miscarriage of justice" (quoting United States v. Torres-

Rosario, 658 F.3d 110, 116 (1st Cir. 2011))). It has held,

furthermore, that such a wasteful reversal takes place if, after

a trial judge failed, without objection, to submit an element of

the offense to the jury, an appellate court vacated the conviction

for that offense in spite of "overwhelming" and "essentially

uncontroverted" evidence that the element was satisfied. Johnson,

520 U.S. at 470. And while Johnson involved overwhelming and

uncontroverted evidence that all appears to have been introduced

at trial, see id. at 464-65, 470 & n.2; Petition for Certiorari at

4a-5a, 9a, Johnson v. United States, 520 U.S. 461 (1997) (No. 96-

203), the Supreme Court at no point suggested that its holding was

so limited. Rather, the Court's reluctance to vacate the

conviction of a defendant with "no plausible argument" that the

facts underlying the contested element of her offense of conviction

did not occur would seem to apply equally to Williams's appeal.

Id. at 470.

- 42 -
 For that same reason, while it is true that, as Williams

notes, due process generally demands that we not "revise the basis

on which a defendant is convicted simply because the same result

would likely obtain on retrial," Dunn v. United States, 442 U.S.

100, 107 (1979); see also United States v. Didonna, 866 F.3d 40,

50 (1st Cir. 2017); Cola v. Reardon, 787 F.2d 681, 688, 701 (1st

Cir. 1986), that contention is not helpful to him. Dunn, Didonna,

and Cola did not involve an application of plain error review, and

thus did not have occasion to consider, in addition to whether a

constitutional violation occurred, whether the fairness,

integrity, or public reputation of judicial proceedings were

impacted by that violation. See Cotton, 535 U.S. at 634 ("[A]

constitutional right may be forfeited in criminal as well as civil

cases by the failure to make timely assertion of the right . . . ."

(alteration in original) (quoting Yakus v. United States, 321 U.S.

414, 444 (1944))). But, that is the precise inquiry that we must

engage in here.

We find it significant, moreover, that the government's

failure to introduce additional evidence of Williams's knowledge

of his status as a felon was not a problem of its own making.

Under our precedent at the time of trial, the government did not

have to introduce evidence that Williams knew of the nature of his

prior conviction to prove his guilt of the felon-in-possession

offense. See Burghardt, 939 F.3d at 402 n.3. The law at the time,

- 43 -
then, only allowed the government to introduce evidence of those

convictions insofar as it helped to show that Williams was actually

a felon, not to show that he was aware he was one. So, in providing

only the limited evidence it did concerning his convictions at

trial, the government was acting in accord with the requirements

of proof at the time. See Old Chief v. United States, 519 U.S.

172, 191-92 (1997) (setting forth limits on evidence that may be

used to prove a defendant's status as a felon at the time of

firearms possession when the defendant stipulates to being a felon

at that time).

Thus, at least here, it would be the overturning, and

not the affirming, of the conviction on the basis of the newly

raised challenge under Rehaif that would "seriously affect the

fairness, integrity, or public reputation of judicial

proceedings." Johnson, 963 F.3d at 852-54 (discussing Johnson,

520 U.S. at 470, and Cotton, 535 U.S. at 633-34, in concluding

that "the fourth prong of plain-error review is designed, in part,

to weed out cases in which correction of an unpreserved error would

ultimately have no effect on the judgment"); see also Miller, 954

F.3d at 559-60 (relying on, at prong four of plain error review,

"reliable evidence in the record on appeal that was not a part of

the trial record," including evidence of a prior conviction, to

reject a defendant's post-Rehaif challenge to his § 922(g)

conviction based on erroneous jury instructions); United States v.

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Hollingshed, 940 F.3d 410, 415-16 (8th Cir. 2019) (considering a

defendant's convictions that were not before the jury, among other

evidence, in declining to reverse a defendant's § 922(g)

conviction post-Rehaif based on an erroneous jury instruction).10

VII.

There remains, then, only the challenges that Williams

brings to the sentence that the District Court imposed. Williams

argues that the District Court erred in sentencing him to a

mandatory minimum prison sentence of eighty-four months for his

§ 924(c) conviction. Lara purported to join this sentencing

challenge in his reply brief, and we again assume that Lara has

not waived the challenge, but describe the challenge as Williams's

alone. The government agrees that, because Williams's conviction

under § 924(c) must be reversed in light of Davis, his challenge

to the sentence imposed for this conviction is moot. We thus do

not address the merits of this challenge.

Additionally, Williams argues that the District Court

erred in: (1) determining that he was a career offender under

U.S.S.G. § 4B1.1; and (2) calculating his offense level; and

(3) determining his criminal history category. The government and

Williams agree that, because Williams's sentence as a whole must

10 For the reasons already mentioned, see supra note 8,
Williams's belated contention that his convictions do not show his
knowledge of status fails.

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be vacated due to our reversal of his § 924(c) conviction, this

Court need not address Williams's remaining sentencing

challenges.11

VIII.

We thus affirm all of Lara's and Williams's convictions,

save for their convictions for violating § 924(c), which are

reversed, and remand this case to the District Court for

resentencing.

11
The government has agreed that, if this Court remands this
case for resentencing without addressing these additional
sentencing issues that Williams raised, Williams can raise these
arguments again before the District Court. Additionally, at oral
argument, the government agreed that, if Williams files a notice
of appeal following resentencing and raises the sentencing issues
that he had raised to this Court in briefing, the government will
not argue that this Court is barred from hearing the claims based
on the law-of-the-case doctrine.

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