FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30056
Plaintiff-Appellee,
D.C. No.
v. 2:19-cr-00035-
RAJ-1
RHETT IRONS, AKA Luck, AKA
Lucky,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted June 10, 2021
Seattle, Washington
Filed April 11, 2022
Before: William A. Fletcher, Paul J. Watford, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins;
Dissent by Judge Watford
2 UNITED STATES V. IRONS
SUMMARY *
Criminal Law
The panel affirmed the defendant’s convictions, after a
jury trial, on charges of conspiracy to distribute fentanyl
(21 U.S.C. § 846) and possession of fentanyl with intent to
distribute (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vi));
reversed his conviction on a charge of possession of a
firearm in furtherance of that drug trafficking (18 U.S.C.
§ 924(c)); and remanded for a new trial on the § 924(c)
charge.
The defendant contended that the district court's
instructions failed adequately to explain the elements of the
§ 924(c) offense. His chief complaint was that, while the
statute required the jury to find that he possessed a firearm
“in furtherance of” a drug trafficking crime, the court gave a
supplemental instruction, in response to a jury note, that
allowed the jury to convict merely by finding that
defendant’s possession of the gun had a “connection” to the
trafficking.
The panel held that the defendant failed to adequately
preserve this objection and that, as a result, the panel’s
review is only for plain error. In so holding, the panel
construed Fed. R. Crim. P. 30(d)’s requirement that an
objection be made “before the jury retires to deliberate” as
applicable to a situation in which the court or a party
proposes to give a supplemental jury instruction in response
to a note from a jury that is already deliberating. The panel
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. IRONS 3
wrote that the fact that the defendant had previously
proposed instructions that happened to bear on the point
raised in the jury’s note is not sufficient to preserve the
position that those instructions should then be given in
response to the jury’s note.
Reviewing for plain error, the panel held:
1. The district court erred by instructing the jury that the
“in furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A)
means that “there must be a connection between the firearm”
and the alleged drug trafficking offense, thereby improperly
permitting the jury to convict without finding that the
defendant possessed the firearm with the intent that it further
or advance a determination crime.
2. The error is plain. Noting that the district court relied
on an unpublished decision of this court that directly
supported its position, the panel explained that Henderson v.
United States, 568 U.S. 266 (2013), requires this court to
assess whether this court’s analysis reveals the question at
issue to have a “plain” answer with the benefit of hindsight.
With the advantage of that hindsight, the panel concluded
that its textual analysis is sufficiently one-sided, and
sufficiently dictates the answer, that the district court’s error
is “plain.”
3. The defendant carried his burden to show that the
error affected his substantial rights because the error in the
instruction effectively removed from the jury’s
consideration the only disputed issue concerning the
§ 924(c) charge—the defendant’s intent in having the gun
under his mattress while living in his home.
4 UNITED STATES V. IRONS
4. Reversal is warranted because the evidence is not so
overwhelming that reversal would impugn the integrity or
fairness of the proceedings.
As to the defendant’s other arguments concerning his
§ 924(c) conviction, the panel concluded that a reasonable
jury could find beyond a reasonable doubt that the defendant
possessed the firearms in furtherance of his drug trafficking;
and that on remand the district court must make the requisite
reliability findings before admitting any expert testimony
concerning general practices of drug traffickers.
As to the predicate drug trafficking convictions, the
panel rejected the defendant’s arguments (1) that the
district court erred in instructing the jury that, in determining
the amount of drugs involved in the conspiracy charge and
the possession-with-intent-to-distribute charge, the
“government does not have to prove that the defendant knew
the quantity of the controlled substance”; and (2) that the
district court plainly erred by instructing the jury that “a
defendant who is a member of a conspiracy to distribute
controlled substances, including fentanyl, is responsible for
. . . the amount of fentanyl distributed or intended to be
distributed by coconspirators, if the defendant could
reasonably foresee that amount to be a necessary or natural
consequence of the unlawful agreement.”
Dissenting in part, Judge Watford would affirm the
defendant’s § 924(c) conviction because, in his view, the
defendant cannot show that the instructional error affected
his substantial rights, given that the government’s evidence
as to the “in furtherance of” element was quite strong, and
the defendant did not show a reasonable probability that, but
for the error, the jury would have reached a different result.
UNITED STATES V. IRONS 5
COUNSEL
Dennis Carrol (argued), Assistant Federal Public Defender,
Office of the Federal Public Defender, Seattle, Washington,
for Defendant-Appellant.
Michael S. Morgan (argued), Assistant United States
Attorney; Brian T. Moran, United States Attorney; United
States Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
OPINION
COLLINS, Circuit Judge:
Rhett Irons was convicted, after a jury trial, on charges
of conspiracy to distribute fentanyl, possession of fentanyl
with intent to distribute, and possession of a firearm in
furtherance of that drug trafficking. We affirm his
convictions on the two drug trafficking charges. However,
we reverse his conviction on the firearms charge due to a
faulty jury instruction, and we remand for a new trial on that
count only.
I
A
After a cooperator who had been involved in trafficking
fentanyl identified Rhett Irons as his supplier, an undercover
agent purchased 199 fentanyl pills from Irons for $4,600 on
June 22, 2018. Thereafter, in February 2019, agents
obtained and executed a search warrant on Irons’ home. The
agents conducting the search found 542 fentanyl pills and
341 oxycodone pills in Irons’ master bedroom. Agents also
6 UNITED STATES V. IRONS
discovered a loaded Glock .380 caliber semiautomatic pistol
underneath the queen-sized mattress in that bedroom. The
gun was in a holster that contained two fully-loaded
magazines, and its grip was visible outside of the holster. In
the master bathroom adjacent to Irons’ bedroom, agents
found cocaine residue, a scale, small baggies, credit cards,
and a rolled-up hundred-dollar bill. Agents discovered
additional cash totaling more than $52,000 in various other
locations throughout the house.
In November 2019, Irons was indicted on three charges:
(1) conspiracy to distribute 400 grams or more of a substance
containing fentanyl in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(vi), 846; (2) possession, with intent to
distribute, of 40 grams or more of a substance containing
fentanyl in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B)(vi); and (3) possession of a firearm in
furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c)(1)(A)(i). The indictment identified the
two drug trafficking counts as the predicate drug trafficking
crimes on which the § 924(c) charge was based.
B
In his opening statement at the ensuing jury trial, Irons’
counsel conceded that Irons was involved in a drug
trafficking conspiracy, that he possessed fentanyl with the
intent to distribute, that he possessed a firearm, and that he
sold or possessed at least 100 grams of fentanyl. However,
he argued that (1) Irons did not possess the firearm “in
furtherance of” a drug trafficking crime, as required to
convict under the § 924(c) charge, see 18 U.S.C.
§ 924(c)(1)(A); and (2) Irons was not responsible for the
quantity of drugs alleged in the conspiracy charge, i.e.,
“400 grams or more” of a substance containing fentanyl, see
21 U.S.C. § 841(b)(1)(A)(vi). Irons’ counsel thus indicated
UNITED STATES V. IRONS 7
that Irons contested only the conspiracy and firearms charges
and not the possession-with-intent-to-distribute charge.
Likewise, in closing arguments, Irons’ counsel contested
only these two specific issues and told the jury that “I’m
going to leave it up [to] your deliberative process as to the
rest of the counts.”
The Government introduced testimony from a number of
persons who were involved in Irons’ drug trafficking
activities, and they stated that many of these transactions
took place in Irons’ bedroom or the adjoining master
bathroom. For example, over an eight-month period,
Nicholas Startzman bought thousands of fentanyl pills from
Irons for nearly $470,000, and Startzman testified that these
transactions occurred “[m]ainly in the master bathroom.”
Irons’ former girlfriend, Deana West, testified that, on any
given day, two to four people would go into Irons’ bedroom
or bathroom to buy drugs. Barry Horn testified that he sold
drugs for Irons while living at his house and that, at any point
in time, approximately five different people were regularly
coming to the home to purchase drugs for redistribution.
The jury heard testimony that the firearm that was under
Irons’ mattress was readily accessible and would not take
long to fire. A detective involved in the search stated that it
took “just a couple of seconds” to lift the mattress
completely. He also testified that, although there was “no
round in the chamber,” it would take “less than a second” to
chamber a round from the gun’s loaded magazine. Another
police officer testified to the same effect.
The Government did not present any evidence that Irons
had ever held, brandished, or discharged the firearm during
a drug transaction. Startzman testified that he had never seen
the gun before. West stated that she had seen the gun once
when changing the sheets in Irons’ bedroom and that Irons
8 UNITED STATES V. IRONS
once told her that he was bringing “a gun” with him during
a visit to Disneyland. Horn testified that one time when he
woke up Irons at his prior residence, Irons reached under the
mattress for his pistol in “hysteria.” Horn “laughed it off,”
asking Irons, “Were you going to shoot me?” and Irons said
no.
Over Irons’ objection, Detective Brandon James was
permitted to testify as an expert on drug traffickers’ use of
firearms. James testified that “because of the inherent
dangerousness in the drug world,” drug traffickers “will
oftentimes arm themselves with weapons, including firearms
to protect themselves and their product and cash.” He stated
that drug traffickers often have large amounts of cash on
hand and that they are frequently robbed. He stated that
when they are robbed, they typically do not report the
robbery to the police because “[i]t’s an odd 911 call to say
that you’ve been robbed of your drugs.”
Irons called a single witness at trial, Matthew Alway.
Alway testified that he had sold Irons the firearm because
Alway was moving out of Washington and did not have a
place to store it. Alway stated that he intended to buy back
the gun at some point but that he never did. Alway testified
that the sale did not “have anything at all to do with a drug
transaction of any sort.”
The jury convicted Irons on all charges and, by special
verdict, expressly found that Irons conspired to distribute
400 grams or more of a substance containing fentanyl and
that he possessed with intent to distribute 40 grams or more.
Irons received concurrent sentences of 120 months on the
two drug trafficking charges, which was the mandatory
minimum sentence for the conspiracy offense. See
21 U.S.C. §§ 841(b)(1)(A)(vi), 846. He was sentenced to
the additional mandatory consecutive term of 60 months on
UNITED STATES V. IRONS 9
the § 924(c) firearm charge. See 18 U.S.C.
§ 924(c)(1)(A)(i), (D)(ii). Irons timely appealed.
II
Irons contends that the district court’s instructions failed
adequately to explain the elements of the § 924(c) offense.
His chief complaint is that, while the statute required the jury
to find that Irons possessed a firearm “in furtherance of” a
drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)
(emphasis added), the court gave a supplemental instruction,
in response to a jury note, that allowed the jury to convict
merely by finding that Irons’ possession of the gun had a
“connection” to the trafficking. We agree with Irons that the
supplemental instruction was flawed and that reversal is
warranted.
A
As a preliminary matter, we address the parties’ vigorous
dispute over whether Irons sufficiently preserved below the
jury-instruction objections he now raises and whether, as a
result, we should review these objections only for plain
error. See FED. R. CRIM. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”); United States v. Powell,
955 F.2d 1206, 1210 (9th Cir. 1992) (“We review an
instruction for plain error when the defendant has not raised
a proper objection at trial.”). To properly evaluate this issue,
we set forth the relevant proceedings concerning the court’s
jury instructions in some detail.
1
The relevant language of § 924(c) imposes criminal
punishment on any person “who, in furtherance of any such
10 UNITED STATES V. IRONS
crime”—i.e., a “crime of violence or drug trafficking
crime”—“possesses a firearm.” 18 U.S.C. § 924(c)(1)(A).
The Government’s proposed instruction on the § 924(c)
charge was based on the then-applicable Ninth Circuit
pattern jury instruction, and it did not contain any definition
of the phrase “in furtherance of.” Irons initially proposed
two alternative instructions defining that phrase. The first
defined this element as follows:
“In furtherance of” means furthering,
advancing or helping forward.
Evidence that a defendant merely
possessed a firearm at a drug trafficking
crime scene is insufficient. There must be
proof that the defendant intended that the
weapon promote or facilitate the underlying
crimes of conspiracy to distribute fentanyl or
possession with intent to distribute fentanyl.
Irons’ second, alternative instruction retained only the first
sentence and deleted the further explanation in the second
paragraph.
After receiving Irons’ proposed jury instructions, the
Government argued that “in furtherance of” should not be
defined but that, if the court disagreed, it should instruct the
jury to determine “whether the firearm was possessed to
advance or promote the drug trafficking offense based on the
totality of the circumstances, including the strategic location
of the firearms, and its proximity and accessibility to the
drugs.”
The district court subsequently circulated a proposed set
of jury instructions to the parties and held a conference to
UNITED STATES V. IRONS 11
address any remaining objections. 1 The court’s proposed
instructions included a definition of “in furtherance of,” but
it did not exactly track either side’s proposals. Instead, the
court’s wording happened to closely track the language of an
instruction that we upheld in our unpublished decision in
United States v. Nichols, 786 F. App’x 624 (9th Cir. 2019). 2
Specifically, the court proposed defining “in furtherance of”
as follows:
“In furtherance of” means there must be a
connection between the firearm and the drug
trafficking crime. In determining whether a
firearm was possessed in furtherance of a
drug trafficking crime, you may consider the
totality of the circumstances, including the
proximity, accessibility, and strategic
location of the firearm.
Irons did not object to defining “in furtherance of” to mean
“a connection between the firearm and the drug trafficking
crime.” 3 Instead, he objected only to the portion of the
1
We grant Irons’ motion to supplement the record with a copy of
the court’s proposed jury instructions that were discussed at that
conference.
2
As we explain below, subsequent events suggest that this
congruence was not an accident, but at this initial conference on jury
instructions, the district court did not yet identify Nichols as the source
of this proposed language.
3
Irons described the court’s definition as “an addition that the
government proposed.” That was not quite correct, because the
Government’s proposed instruction would have defined “in furtherance
of” to mean “to advance or promote,” whereas the court’s instruction
merely required a “connection.” Irons apparently overlooked this
change in language.
12 UNITED STATES V. IRONS
instruction that “narrows the circumstances down to
proximity, accessibility, [and] strategic location” and asked
the court to strike everything from the word “‘including,’ to
the end of that last sentence.” Irons also noted that he had
submitted a supplemental proposed jury instruction for the
§ 924(c) count—in addition to the two alternatives he had
submitted earlier—and this third alternative omitted any
definition of “in furtherance of.” Irons stated that he “would
object to the court not giving that one.” After taking the
objections under submission, the court issued final jury
instructions that omitted any definition of the phrase “in
furtherance of.”
As it turned out, during deliberations the jury requested
clarification of the word “furtherance” as used in the
§ 924(c) instruction. The Government argued that the court
should instruct the jury with the language that the court had
proposed initially. Irons, however, stated that “the court
should not answer the question. Simply tell them that they
have all of their instructions.” The district court at this point
raised the Nichols decision, stating that it was “squarely on
point on the issue that’s now before th[e] court.” Noting that
Nichols had upheld a particular definition of “in furtherance
of,” the district court stated that, “unless there’s further
argument, it’s just a question of how much” of the Nichols
instruction “will we incorporate into responding to the jury.”
Specifically, Nichols had upheld the following instruction of
“in furtherance of” as used in § 924(c):
In furtherance of means there must be a
connection between the firearm and the
defendant’s possession of methamphetamine
with intent to distribute. In determining
whether a firearm was possessed in
furtherance of possession of
UNITED STATES V. IRONS 13
methamphetamine with intent to distribute,
you may consider the totality of the
circumstances, including the proximity,
accessibility, and strategic location of the
firearm as part of the defendant’s possession
of a distribution amount of
methamphetamine.
Id. at 629. 4 Irons responded that Nichols “is not a published
case, that it is advisory, at best, and the established case law
is that there are no additional definitions required.”
Accordingly, Irons stated that, to the extent that the court
intended to give an instruction based on Nichols, “it would
be under our objection.”
The court rejected Irons’ proposal that no response be
given, and it then asked Irons, subject to that objection,
“what language is appropriate to go back to the jury?” In
response, Irons noted that he had previously objected to the
similar list of factors (i.e., proximity, accessibility, and
strategic location) that had been included in “the court’s first
proposed instruction,” and he similarly requested that that
language be stricken from the court’s current proposed
instruction based on Nichols. However, Irons again
apparently did not notice, and did not call the court’s
attention to, the fact that the court’s current proposed
instruction, like the prior one, merely required a “connection
between the firearm” and the drug trafficking offense.
The district court declined to delete the list of factors,
stating that it intended to give an instruction adopting some
4
As noted earlier, this instruction closely tracked what the district
court had originally proposed before the jury was initially instructed. See
supra at 11.
14 UNITED STATES V. IRONS
form of the language from Nichols “without much variance.”
The court, however, gave Irons one last opportunity to
propose modified language. Irons responded by asking only
that the court use the phrase “including but not limited to,”
rather than just “including.” The Government did not object
to that request. The instruction was then read verbatim into
the record, and Irons’ only comment was to note that, when
the instruction was typed up, the phrase “‘in furtherance’
should be in quotes.” The court then summarized its
understanding of the parties’ positions by stating:
The parties had the opportunity to review the
exact language that came out of [Nichols],
and counsel for the defendant still objected to
the court giving any instruction to the jury,
but upon further direction from the court that
I was going to give a form of this opinion to
the jury in response to the specific question,
the following language will go back:
“In furtherance of” means there must be a
connection between the firearm and Count 1
[the conspiracy charge] or Count 3 [the
possession-with-intent-to-distribute charge].
In determining whether a firearm was
possessed in furtherance of Count 1 or
Count 3, you may consider the totality of the
circumstances, including but not limited to
the proximity, accessibility, and strategic
location of the firearm.
The court then asked, “Is that accurate?” Counsel for both
sides responded “Yes, Your Honor.” The court then sent its
written instruction to the jury.
UNITED STATES V. IRONS 15
About an hour after receiving the instruction, the jury
sent a note asking the court whether “possessing a gun with
intent to protect illegally possessed drugs and money
acquired through selling drugs qualify as having the gun ‘in
furtherance of.’” With the agreement of both sides, the court
responded by directing the jury to reread their instructions.
Nine minutes later, the jury returned a verdict finding Irons
guilty on each count.
2
On appeal, Irons raises two primary objections to the
district court’s jury instructions on the § 924(c) count. The
first can be readily rejected, leaving us to then to consider
what standard of review applies to the second.
Irons’ first contention is that the district court erred in
failing to give one of the two instructions defining “in
furtherance of” that Irons had initially proposed, before the
jury retired to deliberate. He argues that his submission of
these instructions, together with the authority supporting
them, is sufficient to preserve his objections to the court’s
failure to give them. Those instructions, he argues, would
have clarified for the jury that (1) “in furtherance of” means
“furthering, advancing, or helping forward”; (2) Irons must
have intended that his possession of the firearm promote or
facilitate an underlying drug trafficking offense; and
(3) mere possession, without more, is insufficient. Even
assuming, without deciding, that we should review this
contention de novo, we conclude that it fails. Under directly
controlling precedent, the district court did not err in
rejecting Irons’ proposed instructions in favor of the simpler
instruction it initially gave to the jury, which left the phrase
“in furtherance of” undefined. See United States v. Lopez,
477 F.3d 1110, 1115 (9th Cir. 2007) (“The district court did
not err, much less plainly err, by failing separately to define
16 UNITED STATES V. IRONS
‘in furtherance’ in its instruction to the jury on possession of
a firearm in furtherance of a drug trafficking offense.”).
Irons also contends that the court’s supplemental
instruction in response to the jury note was flawed because
it allowed the jury to convict based on a mere “connection”
between the firearm and the drug trafficking, which is a
weaker showing than the phrase “in furtherance of” requires.
We conclude that Irons failed to adequately preserve this
objection below and that, as a result, our review is only for
plain error.
Federal Rule of Criminal Procedure 30(d) states that a
“party who objects to any portion of the instructions or to a
failure to give a requested instruction must inform the court
of the specific objection and the grounds for the objection
before the jury retires to deliberate.” We do not construe the
rule’s requirement to object “before the jury retires to
deliberate” to mean that the requirement embodied in the
rule has no application to a situation, such as here, in which
the court or a party proposes to give a supplemental jury
instruction in response to a note from a jury that is already
deliberating. That requirement continues to apply and,
mutatis mutandis, it requires a comparably specific objection
to such a supplemental instruction before that instruction is
given to the jury to use in its further deliberations. See
United States v. Dorri, 15 F.3d 888, 891 (9th Cir. 1994)
(stating that when a jury requests clarification of an
instruction, “the requirement under [Rule] 30 still applies”
and “counsel must state ‘distinctly the matter to which that
party objects and the grounds of the objection’”).
Accordingly, in response to the jury’s note and the
suggestion that a supplemental instruction be given, it was
incumbent on Irons to explain, with specificity, what he then
wanted the court to do. The mere fact that Irons had
UNITED STATES V. IRONS 17
previously proposed instructions that happened to bear on
the point raised in the jury’s note is not sufficient to preserve
the position that those instructions should then be given in
response to the jury’s note. As we have explained, Irons’
prior instructions had been properly rejected before the jury
began its deliberations, and so if Irons believed that the court
should now revisit that issue in light of the jury’s note, he
needed to say so. He did not. Instead, Irons stood on his
objection that no additional instruction should be given.
Although we cannot say that the district court would have
abused its discretion had it likewise adhered to that position,
we find no abuse of discretion in the court’s conclusion that,
in light of the jury’s note, some further instruction should be
given. United States v. Solomon, 825 F.2d 1292, 1295 (9th
Cir. 1987) (stating that the necessity for a supplemental
instruction “in response to jury inquiries” is a matter that
“lies within the discretion of the trial court”).
Having properly so ruled, the court then appropriately
proceeded to ask Irons to state what he thought that
supplemental instruction should say. The court began with
the language of the instruction that had been used in Nichols,
and it asked the parties to suggest whatever changes they
thought were appropriate. At that point, Irons first requested
that the court eliminate the list of suggested factors that the
jury should consider in determining whether the “in
furtherance of” requirement had been met. He noted that he
had made a similar request in response to the instruction that
the court had initially proposed. After the court declined to
delete the list, Irons then asked for only one further change—
namely, that the list should be preceded by the phrase
“including but not limited to” rather than just “including.”
The court accepted that change.
18 UNITED STATES V. IRONS
Under these circumstances, Irons failed to preserve the
objection that the district court’s supplemental instruction
improperly allowed the jury to convict him of possession of
a firearm “in furtherance of” a drug trafficking offense based
on a mere “connection” between the firearm and that
trafficking. Our review is therefore only for plain error
under Rule 52(b). See FED. R. CRIM. P. 30(d) (“Failure to
object in accordance with this rule precludes appellate
review, except as permitted under Rule 52(b).”).
B
Federal Rule of Criminal Procedure 52(b) provides that
“[a] plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.” “Rule 52(b) is permissive, not mandatory.”
United States v. Olano, 507 U.S. 725, 735 (1993). “To
establish eligibility for plain-error relief, a defendant must
satisfy three threshold requirements. First, there must be an
error. Second, the error must be plain. Third, the error must
affect ‘substantial rights,’ which generally means that there
must be ‘a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.’”
Greer v. United States, 141 S. Ct. 2090, 2096 (2021)
(citations omitted). “If those three requirements are met, an
appellate court may grant relief if it concludes that the error
had a serious effect on ‘the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 2096–97 (citation
omitted). The Supreme Court has made clear that “the
burden of establishing entitlement to relief for plain error is
on the defendant claiming it.” United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004).
UNITED STATES V. IRONS 19
1
Addressing the first prong of this test, we conclude that
the district court erred by instructing the jury that the “in
furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A)
means that “there must be a connection between the firearm”
and the alleged drug trafficking offense.
In ordinary usage, an action is in “furtherance” of
something if it “facilitat[es] the progress of something” or
“mak[es] it more likely to occur.” Furtherance, BLACK’S
LAW DICTIONARY (11th ed. 2019). The phrase thus denotes
the idea of “promotion or advancement” of an objective. Id.;
see also Furtherance, AMERICAN HERITAGE DICTIONARY
(5th ed. 2018) (“[t]he act of furthering, advancing, or helping
forward”); Furtherance, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (1981 ed.) (“a helping
forward: ADVANCEMENT, PROMOTION”). In accordance with
that ordinary meaning, we have expressly held that a
“conviction for possession of a firearm ‘in furtherance of’ a
drug trafficking offense or crime of violence under § 924(c)
requires proof that the defendant possessed the weapon to
promote or facilitate the underlying crime.” United States
v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004) (emphasis
added). “In other words, this element of § 924(c) turns on
the intent of the defendant.” Id.
While an action that promotes, facilitates, or advances an
objective will thereby necessarily have a “connection” to
that goal, the converse is not true: not everything that has a
“connection” to something advances or facilitates its
progress. Cf. Krouse, 370 F.3d at 966 (stating that “in
furtherance of” requires a “sufficient nexus” between the gun
and the predicate offense) (emphasis added). The phrase “in
furtherance of” thus refers to a particular type of connection,
20 UNITED STATES V. IRONS
and that critical aspect of the phrase is not captured by an
instruction that merely requires a “connection.”
This understanding of “in furtherance of” is confirmed
by examining § 924(c)’s structure and the manner in which
Congress amended that statute in response to judicial
construction of it. See Parker Drilling Mgmt. Servs., Ltd. v.
Newton, 139 S. Ct. 1881, 1892 (2019) (consulting “the
statute’s text, structure, and history” of amendments in
construing its meaning).
At the time of the Supreme Court’s decision in Bailey v.
United States, 516 U.S. 137 (1995), the operative language
of § 924(c) imposed criminal punishment on “[w]hoever,
during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm.” 18 U.S.C.
§ 924(c) (1994) (emphasis added). Two years earlier, the
Court had already held that the “phrase ‘in relation to’ is
expansive,” but that it “at least” means that the firearm “must
facilitate or have the potential of facilitating the drug
trafficking offense.” Smith v. United States, 508 U.S. 223,
237–38 (1993) (simplified) (emphasis added). In Bailey, the
Court resolved a circuit split over the meaning of the term
“uses” in § 924(c) and held that it requires “more than mere
possession of a firearm by a person who commits a drug
offense.” 516 U.S. at 143 (emphasis added). As the Court
explained, “[h]ad Congress intended possession alone to
trigger liability under § 924(c)(1), it easily could have so
provided” by using “the term ‘possess,’” which was
“frequent[ly] use[d]” in other “gun-crime statutes to
describe prohibited gun-related conduct.” Id.
In “direct response to th[e] Court’s decision in Bailey,”
Congress amended § 924(c) in 1998 to “add[] the word
‘possesses’ to the principal paragraph” of a restructured
§ 924(c). United States v. O’Brien, 560 U.S. 218, 232–33
UNITED STATES V. IRONS 21
(2010). The statute now provides, in relevant part, that “any
person who, during and in relation to any crime of violence
or drug trafficking crime . . . uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm,
shall” be punished as provided. 18 U.S.C. § 924(c)(1)(A).
Notably, Congress did not simply add the word “possesses”
to the then-existing main clause of the statute, so that it
would punish whoever, “during and in relation to any crime
of violence or drug trafficking crime . . . possesses, uses, or
carries a firearm.” See id. That would have been the
simplest way to abrogate Bailey, and that phrasing would
have required only that the possession be “in relation to” the
predicate crime, i.e., that it have a sufficient connection to
that crime. Instead, Congress added a new separate clause
that covered possession, and it used a different phrase to
describe the requisite link between possession of the firearm
and the predicate offense—namely, that the possession must
be “in furtherance of” the predicate offence. When, as here,
Congress uses distinct language in one section of a statute
that is omitted “in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello
v. United States, 464 U.S. 16, 23 (1983) (citation omitted).
That reinforces what the text already makes clear, which is
that “in furtherance of” has a different—and narrower—
meaning than “in relation to.”
By stating that possession of a firearm was “in
furtherance of” drug trafficking if there was “a connection
between the firearm” and a predicate drug trafficking
offense, the district court’s supplemental instruction in this
case improperly permitted the jury to convict Irons without
finding that he possessed the firearm with the intent that it
further or advance a drug trafficking crime.
22 UNITED STATES V. IRONS
2
Turning to the second element of the plain-error test, we
would be hard-pressed to say that the district court’s error on
this score was “plain” at the time it ruled, because the court
relied on an unpublished memorandum decision of this court
that directly supported its position. See Nichols, 786 F.
App’x at 629–30. Indeed, the position we adopt today more
closely resembles that of the concurring judge in Nichols.
See id. at 631 (Berzon, J., concurring) (asserting that the
“plain language” of the statute required “more than just an
amorphous ‘connection’ between the firearm and the drug
trafficking crime—a purpose to facilitate, promote, or
advance the commission of a drug trafficking crime was
needed”).
But the Supreme Court has made clear that whether an
error is “plain” for purposes of Rule 52(b) is judged “at the
time of review” by the appellate court and not at the “time of
error.” Henderson v. United States, 568 U.S. 266, 273
(2013). The question, then, is whether the district court’s
instruction, “even if now wrong (in light of the new appellate
holding),” should now be characterized as “questionabl[y]”
wrong rather than “plainly wrong.” Id. at 278. As we
understand Henderson, it requires us assess, with the benefit
of hindsight, whether our analysis reveals the question at
issue to have a “plain” answer or whether that analysis
confirms that we have instead answered a close and difficult
question. With the advantage of that hindsight, we conclude
that our textual analysis is sufficiently one-sided, and
sufficiently dictates the answer, that the district court’s error
is “plain.” To be sure, it seems quite unfair to conclude that
the district court “plainly erred” when it followed an
unpublished decision of this court, but the Court has made
“clear that plain-error review is not a grading system for trial
UNITED STATES V. IRONS 23
judges.” Id. “It has broader purposes, including in part
allowing courts of appeals better to identify those instances
in which the application of a new rule of law to cases on
appeal will meet the demands of fairness and judicial
integrity.” Id.
3
To satisfy the third element of the plain-error test, Irons
must show that the error affected his “substantial rights.”
See FED. R. CRIM. P. 52(b). In the context of this case, that
requires Irons to show that, if the district court had provided
a correct jury instruction, “there is a reasonable probability
that a jury would have acquitted him.” Greer, 141 S. Ct. at
2098. A probability is “reasonable” in this sense if it is
“‘sufficient to undermine confidence in the outcome’ of the
proceeding.” Dominguez Benitez, 542 U.S. at 83 (citation
omitted). “The reasonable-probability standard is not the
same as, and should not be confused with, a requirement that
a defendant prove by a preponderance of the evidence that
but for error things would have been different.” Id. at 83 n.9
(emphasis added). In determining whether such a reasonable
probability has been shown, we “may consider the entire
record—not just the record from the particular proceeding
where the error occurred.” Greer, 141 S. Ct. at 2098.
Applying these standards, we conclude that Irons has made
the requisite showing.
On this record, the error in the instruction effectively
removed from the jury’s consideration the only disputed
issue concerning the § 924(c) charge. As noted earlier, a
firearm has a connection to a drug trafficking offense if it
has the objective “potential of facilitating the drug
trafficking offense.” Smith, 508 U.S. at 238 (simplified)
(making this observation concerning the distinct “in relation
to” clause of § 924(c)); see supra at 19–20. The district
24 UNITED STATES V. IRONS
court’s supplemental instruction clearly framed the
“connection” inquiry in objective terms, because it
mentioned only a series of objective factors for the jury to
consider in determining whether that connection had been
established—namely, “proximity, accessibility, and
strategic location.” But the issue of an objective connection
was not seriously disputed at Irons’ trial. The essential facts
about the condition of the gun and its location in Irons’
bedroom were undisputed, and Irons similarly did not
seriously contest that he engaged in drug trafficking in that
bedroom and its adjacent bathroom over an extended period
of time. On the undisputed facts at trial, the gun thus plainly
had an objective “connection” to Irons’ drug trafficking in
the ordinary sense of that term.
What was sharply disputed at trial was Irons’ intent in
having the gun under the mattress while living in his home.
Irons presented a witness who, if believed, supported the
conclusion that Irons had agreed to buy the gun from him for
subjective reasons that had nothing to do with drug
trafficking. See supra at 8. Irons further argues that West’s
testimony that Irons mentioned bringing a gun to Disneyland
for protection further supports a reasonable doubt as to
whether Irons possessed the gun merely for protection
generally and not to facilitate his drug trafficking. Cf. United
States v. Potter, 630 F.3d 1260, 1261 (9th Cir. 2011) (stating
that a firearm is possessed “in furtherance of” drug
trafficking if one of the defendant’s purposes is to facilitate
drug trafficking, even if an additional purpose is to protect
the home generally). But under the instructions as given, the
jury did not need to make any finding as to this disputed
issue of Irons’ subjective intent; an objective connection was
enough. Viewed that way, the supplemental instruction
UNITED STATES V. IRONS 25
elided the parties’ dispute over subjective intent and all but
directed a verdict on the “in furtherance of” issue. 5
Recognizing that Irons does not have to show that it is
more likely than not that a jury would have acquitted him,
we conclude that, on this record, the issue of Irons’
subjective intent was sufficiently triable that its de facto
removal from the jury’s consideration undermines
confidence in the outcome. Dominguez Benitez, 542 U.S.
at 83 & n.9. That is, there is a reasonable possibility that a
properly instructed jury would have had a reasonable doubt
as to the issue of subjective intent. Irons has carried his
burden to show that the error affected his substantial rights.
See Greer, 141 S. Ct. at 2098.
4
The last remaining element is whether we should
exercise our discretion to grant relief, which turns on
whether “the error had a serious effect on ‘the fairness,
integrity or public reputation of judicial proceedings.”
Greer, 141 S. Ct. at 2096–97 (citation omitted). We
conclude that, under that standard, reversal is warranted.
Removing the key disputed issue at trial from the jury’s
consideration certainly casts doubt on the fairness of the
proceedings, even if Irons’ own counsel failed to catch the
error. Indeed, counsel’s failure to detect this plain error in
the supplemental instruction arguably implicates Irons’ right
5
The dissent is therefore wrong in contending that, if the jury had
agreed with Irons’ arguments concerning his subjective intent, “it would
have acquitted [him] even under the erroneous supplemental instruction
the district court gave.” See Dissent at 34. Under the supplemental
instruction, all the jury had to find to convict was an objective connection
between the firearm and the drug trafficking.
26 UNITED STATES V. IRONS
to effective assistance of counsel, which is a consideration
that bears upon the integrity and public reputation of the
proceedings. However, there are important countervailing
considerations that must also be considered. In particular,
“[w]e have recognized that where it is extremely unlikely
that, if properly instructed, the jury would not have
convicted the defendant, then the greater threat to the
integrity and fairness of judicial proceedings would arise
from the reversal of a conviction on flawed jury instructions
rather than from affirming an imperfect verdict.” United
States v. Turchin, 21 F.4th 1192, 1202 (9th Cir. 2022)
(citations and internal quotation marks omitted). We agree
that the evidence of an objective connection between the
firearm and Irons’ drug trafficking was strong. But the
defect here relates to the issue of Irons’ subjective intent.
Although we might have found the Government’s reading of
the evidence more persuasive if we were the trier of fact, we
conclude that the evidence is “not so overwhelming that
reversal here would impugn the integrity or fairness of the
proceedings.” Id. at 1203. 6
Accordingly, we reverse Irons’ conviction under
§ 924(c) and remand for a new trial on that charge.
6
Nor are we persuaded by the Government’s suggestion that the
jury’s second note indicated that it had found that Irons “possess[ed] a
gun with intent to protect illegally possessed drugs and money acquired
through selling drugs.” See supra at 15. The fact that the jury asked a
hypothetical about such a factual scenario does not necessarily mean that
it had unanimously concluded that this case fell within that hypothetical
scenario. Although the note may suggest that many jurors held that view,
its import is ultimately too speculative to weigh heavily in the balance
here.
UNITED STATES V. IRONS 27
III
Irons raises two other arguments concerning his § 924(c)
conviction, which we need only briefly address.
A
First, Irons challenges the sufficiency of the evidence
against him on the § 924(c) charge. Although we have
reversed that conviction, “we must address the sufficiency
of the evidence supporting it, for if the evidence were
insufficient, retrial is barred by the Double Jeopardy
Clause.” United States v. Lewis, 787 F.2d 1318, 1323 (9th
Cir. 1986). For purposes of resolving this issue, we consider
all the evidence admitted at trial, regardless of whether Irons
challenges its admissibility. Lockhart v. Nelson, 488 U.S.
33, 40–41 (1988). We have little difficulty concluding that
a reasonable jury could find beyond a reasonable doubt that
Irons possessed the firearm in furtherance of his drug
trafficking. See Jackson v. Virginia, 443 U.S. 307, 319
(1979) (holding that “the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”).
Viewing the evidence in the light most favorable to the
Government, a reasonable jury could reject Alway’s
testimony as not credible or persuasive and could draw a
circumstantial inference of intent arising from the objective
connection between the location and condition of the firearm
and the drug trafficking. That is enough to meet the lenient
standard for evidentiary sufficiency under Jackson. See,
e.g., United States v. Norwood, 603 F.3d 1063, 1072 (9th
Cir. 2010) (finding sufficient evidence to uphold a
conviction under § 924(c)(1) when a firearm was found
under a mattress a few feet away from drugs); United States
28 UNITED STATES V. IRONS
v. Hector, 474 F.3d 1150, 1158–59 (9th Cir. 2007) (finding
sufficient evidence to uphold a conviction under § 924(c)
when a firearm was underneath a futon near an entryway
where drugs were sold).
B
Second, Irons contends that the district court improperly
admitted Detective James’ expert testimony concerning
certain general practices of drug traffickers without
assessing the reliability of the opinions that he would
express. In particular, the district court allowed Detective
James to testify that “[d]rug traffickers will oftentimes arm
themselves with weapons, including firearms to protect
themselves and their product and cash.” Irons objected to
the admission of Detective James’ testimony and requested
an admissibility hearing pursuant to Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). The court overruled
Irons’ objection, declined to conduct a Daubert hearing, and
admitted Detective James’ testimony.
Although we have held that the sort of matters addressed
by Detective James may properly be the subject of expert
testimony in appropriate cases, see, e.g., United States v.
Anchrum, 590 F.3d 795, 804 (9th Cir. 2009), we have also
held that a district court “necessarily abuses its discretion[]
when it makes no reliability findings,” which are required to
satisfy its “gatekeeping duty” for determining the
admissibility of expert testimony under Federal Rule of
Evidence 702. See United States v. Valencia-Lopez,
971 F.3d 891, 898–99 & n.6 (9th Cir. 2020) (citation
omitted). We have further stated that “[a]n implicit
reliability finding is not sufficient” and that “the court must
make an explicit reliability finding.” Id. at 899 n.6 (citations
and internal quotation marks omitted). The Government
acknowledges these holdings, but it argues that “this type of
UNITED STATES V. IRONS 29
error is harmless if the record provides a basis for
determining the expert’s reliability” and that “[s]uch is the
case here.” In view of our reversal, we need not decide
whether any such error was harmless. On remand, the
district court must make the reliability findings required by
Valencia-Lopez before admitting any such expert testimony.
IV
Irons’ opening brief challenges his two predicate drug
trafficking convictions on the ground that the district court
erred in instructing the jury that, in determining the amount
of drugs involved in the conspiracy charge and the
possession-with-intent-to-distribute charge, the
“government does not have to prove that the defendant knew
the quantity of the controlled substance.” In his reply brief,
however, Irons concedes that our recent decision in United
States v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (en banc),
forecloses his argument as to the possession charge. There,
we held that in order to obtain an enhanced quantity-based
sentence under 21 U.S.C. § 841(b) for an offense in violation
of § 841(a) (which prohibits, inter alia, possession of
unlawful drugs with intent to distribute), “the government
must prove beyond a reasonable doubt the specific type and
the quantity of substance involved in the offense, but not the
defendant’s knowledge of (or intent) with respect to that type
and quantity.” Id. at 1329 (emphasis added).
Although Irons argues that Collazo’s holding was “less
clear” as to a drug conspiracy charge under 21 U.S.C. § 846,
that is wrong. Collazo squarely held that, “[f]or a conspiracy
offense under § 846, the government need not prove a level
of criminal intent greater than that for the underlying
offense.” 984 F.3d at 1320 n.10. And because “the
government need not prove that a defendant knew (or had an
intent) with respect to a specific drug type and quantity in
30 UNITED STATES V. IRONS
order to secure a conviction under § 841(a) and penalties
under § 841(b)(1),” it follows that “the government likewise
need not prove such knowledge or intent for purposes of
§ 846.” Id.
Lastly, Irons argues that the district court plainly erred
by instructing the jury that “a defendant who is a member of
a conspiracy to distribute controlled substances, including
fentanyl, is responsible for . . . the amount of fentanyl
distributed or intended to be distributed by coconspirators, if
the defendant could reasonably foresee that amount to be a
necessary or natural consequence of the unlawful
agreement.” We disagree. In Collazo, we held that the
enhanced quantity-based penalties in § 841(b) apply if “the
government has proven beyond a reasonable doubt that the
underlying § 841(a)(1) offense”—i.e., the offense that was
the object of the conspiracy—“involved the drug type and
quantity set forth in § 841(b)(1)(A)–(B).” 984 F.3d at 1336.
It was therefore error, we held, to instruct the jury that it
should rely on the quantity of drugs that “was reasonably
foreseeable to [the defendant] or fell within the scope of his
particular agreement.” Id. Here, by contrast, the above-
quoted wording of the instructions limited the quantity of
drugs for purposes of the § 841(b)’s enhanced penalties to
“the amount of fentanyl distributed or intended to be
distributed by coconspirators.” By thus defining the relevant
quantity, the instructions properly limited that quantity to
what was “involved” in the “underlying § 841(a)(1) offense”
that was the object of the conspiracy. See Collazo, 984 F.3d
at 1336. The fact that the instructions went further—
requiring the jury to find both that the quantity alleged in the
indictment was “the amount of fentanyl distributed or
intended to be distributed by coconspirators” and that that
amount was the reasonably foreseeable “necessary or natural
consequence of the unlawful agreement”—provides no
UNITED STATES V. IRONS 31
grounds for reversal. At worst, the instruction required the
Government to prove more than Collazo required, but not
less. Consequently, there was no plain error on this score.
* * *
Accordingly, we AFFIRM Irons’ drug trafficking
convictions (Counts 1 and 3). We REVERSE his conviction
under § 924(c) and REMAND for a new trial on that charge.
WATFORD, Circuit Judge, dissenting in part:
I would affirm the judgment in full. Given the
limitations imposed by plain error review, I think Rhett
Irons’s conviction for possessing a firearm in furtherance of
a drug-trafficking crime should stand.
I agree with my colleagues that our court erred in United
States v. Nichols, 786 F. App’x 624 (9th Cir. 2019), by
approving a supplemental instruction that defined the phrase
“in furtherance of” to require only “a connection” between
the defendant’s firearm possession and the underlying drug-
trafficking crime. I joined the unpublished disposition in
Nichols, but in retrospect I regret having done so. As Judge
Berzon’s concurrence in that case persuasively explains, see
id. at 631–32, our circuit has long held that the “in
furtherance of” element of 18 U.S.C. § 924(c) requires more
than a mere “connection” between firearm possession and
commission of a drug-trafficking crime. As we held in
United States v. Krouse, 370 F.3d 965 (9th Cir. 2004), “[a]
conviction for possession of a firearm ‘in furtherance of’ a
drug trafficking offense or crime of violence under § 924(c)
requires proof that the defendant possessed the weapon to
promote or facilitate the underlying crime.” Id. at 967
32 UNITED STATES V. IRONS
(emphasis added). We have consistently adhered to that
view in cases decided since Krouse. See, e.g., United States
v. Rios, 449 F.3d 1009, 1012 (9th Cir. 2006) (“[T]he
government must show that the defendant intended to use the
firearm to promote or facilitate the drug crime.”); United
States v. Lopez, 477 F.3d 1110, 1115 (9th Cir. 2007) (same);
United States v. Mahan, 586 F.3d 1185, 1187 (9th Cir. 2009)
(same).
Our court plainly erred in Nichols when we endorsed an
instruction stating that “in furtherance of” means “there must
be a connection between the firearm and the defendant’s
[drug-trafficking crime].” 786 F. App’x at 629–30. The
district court in this case cannot be faulted for following the
erroneous guidance we provided in Nichols, but Nichols
itself departed from well-settled circuit precedent. As a
result, when the district court gave the same supplemental
instruction we approved in Nichols, it committed an error,
and that error was both clear and obvious. Irons has thus
satisfied the first two prongs of plain error review. See
United States v. Olano, 507 U.S. 725, 733–34 (1993).
I would nevertheless affirm Irons’s § 924(c) conviction
because, in my view, he cannot show that the error affected
his substantial rights, as required by the third prong of plain
error review. Under the third prong, Irons must show “a
reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different.” United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
The government’s evidence as to the “in furtherance of”
element may not have been overwhelming, but it was quite
strong. Irons kept a loaded Glock firearm within easy reach
under the mattress in his bedroom, and he conducted most of
his drug sales in that bedroom or the adjoining bathroom, the
UNITED STATES V. IRONS 33
entrance to which was just a few feet from his bed. When
agents searched Irons’s home, they found fentanyl pills,
oxycodone pills, and cocaine in the bedroom and adjoining
bathroom. They also found $3,110 in cash on Irons and
recovered roughly $53,000 in cash from three locations
within the home, two of which were a safe in the bedroom
closet and a drawer in the adjoining bathroom. The
testimony at trial established that Irons conducted a
substantial drug-trafficking operation out of his bedroom
and adjoining bathroom, which involved large quantities of
fentanyl pills and large sums of cash. One of Irons’s co-
conspirators testified that in the nine-month period
preceding Irons’s arrest, he purchased more than 13,000
fentanyl pills from Irons worth nearly $470,000. Irons sold
significant quantities of fentanyl pills to other co-
conspirators as well.
Based on this evidence, the government argued that Irons
possessed the Glock at least in part for the purpose of
protecting his sizeable stash of drugs and cash. Irons does
not dispute that possessing a firearm for that purpose would
promote or facilitate the drug-trafficking crimes in which he
was engaged.
Instructing the jury that it could convict upon finding “a
connection” between Irons’s possession of the Glock and his
drug-trafficking crimes concededly did not convey the full
extent of the government’s burden. The instruction was
accurate in the sense that the government must indeed prove
a connection between the two, but of course not just any
connection will suffice in this context. The government
must prove a specific type of connection—namely, that
possession of the firearm promoted or facilitated the
underlying drug-trafficking crime.
34 UNITED STATES V. IRONS
The problem for Irons is this: There simply was no other
type of “connection” that the jury could have found between
Irons’s possession of the Glock and his drug-trafficking
crimes. The only connection the government argued to the
jury—that Irons possessed the Glock to protect his drugs and
cash—did involve promotion or facilitation of his drug-
trafficking crimes. Irons’s defense at trial was that he used
the Glock solely for general personal protection, for such
things as long road trips to Disneyland that were unrelated
to drug trafficking. In other words, he argued that there was
no connection at all between his possession of the Glock and
his drug-trafficking operation. If the jury had accepted that
argument, however, it would have acquitted Irons even
under the erroneous supplemental instruction the district
court gave.
Had we been reviewing the instructional error at issue
here under the harmless error standard, which requires the
government to prove that the error was harmless beyond a
reasonable doubt, I might have been inclined to agree with
my colleagues that reversal of Irons’s § 924(c) conviction
was warranted. But under the plain error standard we must
apply instead, Irons had the burden to show a reasonable
probability that, but for the instructional error, the jury
would have reached a different result. See Dominguez
Benitez, 542 U.S. at 81–82. On the record before us, I see
no such reasonable probability, nor anything that would
undermine confidence in the outcome of the trial.