Circuit Judge, with whom Judge WESLEY joins, concurring:
Judge Wesley and I concur with the per curiam opinion because its conclusions are compelled by the current law of this circuit. We write separately because we be*103lieve this Court’s precedent with regard to plain-error review of ex post facto violations does not fully align with the principles inhering in the Supreme Court’s recent applications of plain-error review.
Under plain-error review, an appellate court cannot correct an error not raised at trial unless there is “(1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and citation omitted). In its recent applications of plain-error review, the Supreme Court has stated that where a trial court commits an error that is plain, that error does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings if the error concerns an “essentially uncontroverted” issue. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Johnson, 520 U.S. at 470, 117 S.Ct. 1544. Ornease law appears to conflict with this precedent because it requires a retrial whenever there is any possibility that an improperly instructed jury could have convicted a defendant based exclusively on conduct committed prior to the enactment of the relevant statute, see United States v. Torres, 901 F.2d 205, 229 (2d Cir.1990), even where it is “essentially uncontroverted” that the defendant’s relevant conduct before and after the statute’s enactment was materially indistinguishable. We write to bring this issue to our Court’s attention and to explain how this difference affects the outcome of this appeal.1
In Johnson, the defendant was convicted of perjury under 18 U.S.C. § 1623. One element of that crime — the materiality of the defendant’s false statement — was unconstitutionally decided by the trial judge, rather than by the jury. See Johnson, 520 U.S. at 463-64, 117 S.Ct. 1544; see also United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Supreme Court nevertheless affirmed the conviction, explaining that the error did not affect the fairness, integrity, or public reputation of the judicial proceedings because the evidence of materiality was “overwhelming” and “essentially uncontroverted.” 520 U.S. at 469-70, 117 S.Ct. 1544. Because Johnson had “no plausible argument that the false statement under oath for which she was convicted ... was somehow not material,” the Supreme Court concluded there was no “miscarriage of justice” in not taking notice of the error. Id. at 470, 117 S.Ct. 1544.
Likewise, in Cotton, the defendants were convicted of conspiring to distribute and to possess with intent to distribute a detectable amount of cocaine and crack cocaine. The indictment, however, failed to allege drug quantity, a fact that increased the statutory maximum penalty, rendering the defendants’ enhanced sentences unconstitutional. See Cotton, 535 U.S. at 632, 122 S.Ct. 1781; see also Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” (internal quotation marks omitted)). Again, the Supreme Court held this error did not affect the fairness, integrity, or public rep*104utation of the proceedings because the evidence that the drug conspiracy involved at least 50 grams of cocaine base was “overwhelming” and “essentially uncontroverted Cotton, 535 U.S. at 633, 122 S.Ct. 1781; see also id. (“Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base.”). “The real threat ... to the ‘fairness, integrity, and public reputation of judicial proceedings,’ ” the Supreme Court explained, “would be if [the defendants], despite the overwhelming and un-controverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.” Id. at 634, 122 S.Ct. 1781.
These cases embody the Supreme Court’s view that there is no “miscarriage of justice” in refusing to notice forfeited errors that did not affect the judgment. See Johnson, 520 U.S. at 470, 117 S.Ct. 1544. This is true even if the errors fall within the “limited class” of “structural errors” that “affect[ ] the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 468, 117 S.Ct. 1544. We see no reason why this principle should not apply to the context of ex post facto violations. While the Ex Post Facto Clause is certainly fundamental to our notions of justice, see Marks v. United States, 430 U.S. 188, 191-192, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), it is no more so than the Fifth and Sixth Amendment rights at issue in Johnson and Cotton. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (describing the right to trial by jury in serious criminal cases to be “fundamental to the American scheme of justice”).
Thus, where there is no reasonable possibility that an error not objected to at trial had an effect on the judgment, the Supreme Court counsels us against exercising our discretion to notice that error. Within the context of the Ex Post Facto Clause, we believe this means that where the evidence is “overwhelming” or “essentially uncontroverted” that the defendant’s relevant pre- and post-enactment conduct is materially indistinguishable, such that a reasonable jury would not have convicted the defendant based solely on pre-enactment conduct, a retrial is unwarranted. In other words, the defendant must meet the low threshold of offering a plausible explanation as to how relevant pre- and post-enactment conduct differed, thereby demonstrating a reasonable possibility that the jury might have convicted him or her based exclusively on pre-enactment conduct. When this requirement is not met, the error does not seriously affect the fairness, integrity, or public reputation of the judicial proceedings.
Our standard — announced in Torres, 901 F.2d at 229, and repeated in United States v. Harris, 79 F.3d 223, 229 (2d Cir.1996), and United States v. Monaco, 194 F.3d 381, 386 (2d Cir.1999) — appears to conflict with the Cotton and Johnson decisions because it requires a retrial whenever there is any factual possibility that a jury could have convicted a defendant based exclusively on pre-enactment conduct, even if such a scenario is highly implausible. Our Court has never directly addressed this possible conflict. Indeed, our opinion in Torres preceded the Cotton and Johnson decisions, and we did not apply the Supreme Court’s current four-part plain-error analysis in crafting our standard. We have since had no occasion to evaluate whether the Torres standard comports with Johnson and Cotton because we concluded in both Monaco and Harris that there was no error even under the Torres “any possibility” standard. Accordingly, *105our Court may wish to reexamine its precedent to ensure that it does not conflict with Supreme Court precedent.2
Were this Court to adopt a reasonable possibility standard, we believe that we should exercise our discretion to notice the forfeited ex post facto error for Glenn Marcus’s sex-trafficking conviction, but not for his forced-labor conviction.3 With regard to the sex-trafficking conviction, Marcus’s relevant conduct differed materially before and after October 2000, such that there is a reasonable possibility that the jury may have convicted him based exclusively on pre-enactment conduct. The sex-trafficking statute makes it illegal to knowingly, in or affecting interstate commerce, recruit, entice, harbor, transport, provide, or obtain by any means a person knowing that force, fraud, or coercion will be used to cause the person to engage in a commercial sex act. 18 U.S.C. § 1591. The government alleged that Marcus engaged in several trafficking activities with the requisite mens rea: (1) that he recruited, enticed, and obtained Jodi when he met her online in late 1998; (2) that he transported Jodi from Maryland to New York in January 2000; and (3) that he harbored Jodi from 1999 until 2001. Only the harboring activity occurred after the October 2000 effective date of the statute. Thus, if the jury concluded that Marcus did not harbor Jodi within the meaning of the statute,4 but did recruit, enticé, or obtain *106her in 1998 or transport her in 2000, it would have convicted him based only on pre-enactment conduct. This material difference in conduct demonstrates a reasonable possibility that the jury may have relied exclusively on pre-enactment conduct. Under such circumstances, a retrial is necessary.
In contrast, with respect to the forced-labor conviction, Marcus has no plausible argument as to why the jury would have differentiated between his conduct before and after the enactment of the statute. Here, the government alleged that from January 2000 until at least the spring of 2001, Marcus forced Jodi, through threat of serious physical harm and actual physical harm, to create and maintain a commercial BDSM website. Jodi testified that throughout this time period she was forced to work eight to nine hours a day maintaining the website and that Marcus would punish her whenever she failed to update the site quickly enough.5 Marcus has been unable to offer any explanation of how his pre- and post-enactment conduct differed in any relevant way.6 Indeed, his central argument on the forced-labor charge appears to be that “because of the volatile evidence in the sex trafficking prosecution, which included the admission of highly prejudicial photographs and graphic images, there was a very serious spillover impact on the forced labor charges.” Because it is “essentially uncontroverted” that Marcus’s relevant conduct was materially indistinguishable before and after the enactment of the statute, there is no reasonable possibility that the jury would have convicted him based only on his pre-enactment conduct and not on his post-enactment conduct. In other words, a rational jury would have either convicted Marcus for his conduct during this entire period or not at all. Because the district court’s error in failing to instruct the jury on the Ex Post Facto Clause did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings, his conviction should not be vacated for this error.
Nevertheless, we join the per curiam opinion in vacating both of Marcus’s convictions because the Torres standard remains the law of this circuit. See Bd. of Educ. v. Hufstedler, 641 F.2d 68, 70 (2d Cir.1981) (“A panel of this court is bound by a previous panel’s opinion, until the decision is overruled en banc or by the Supreme Court.”). For the reasons discussed, however, we believe that our precedent warrants reexamination.
. We note that our concern here applies only to our review of ex post facto violations under the plain-error standard.
.Whether or not we reexamine our precedent, further guidance from the Supreme Court on this issue may be helpful, especially in light of the various plain-error standards applied by our sister circuits for ex post facto violations. See United States v. Munoz-Franco, 487 F.3d 25, 57-58 (1st Cir.2007) (noting the split in the circuit standards). For example, the Third Circuit has applied our standard from Torres, examining whether there is any possibility that the jury could have convicted the defendant based exclusively on pre-enactment conduct. See United States v. Tykarsky, 446 F.3d 458, 481-82 (3d Cir.2006). The First Circuit, however, has held that a retrial is unwarranted where there was "nothing to differentiate appellants' pre-enactment conduct from subsequent conduct” and thus "a reasonable jury would not have convicted the appellants based solely on pre-enactment conduct.” Munoz-Franco, 487 F.3d at 57-58. Similarly, the Seventh Circuit, in a continuing conspiracy case, explained its plain-error standard as whether a reasonable jury, properly instructed on this point, could have concluded that the conspiracy had ended before the relevant date or that the defendant had withdrawn from the conspiracy before that date. See United States v. Julian, 427 F.3d 471, 482-83 (7th Cir.2005). Finally, the Fifth Circuit has examined whether the bulk of the evidence focused on events occurring after the enactment of the statute. See United States v. Todd, 735 F.2d 146, 150 (5th Cir.1984).
. As explained in the per curiam opinion, Marcus was convicted of sex trafficking, 18 U.S.C. § 1591, and forced labor, 18 U.S.C. § 1589, based on his conduct from January 1999 until October 2001. Neither of these statutes was effective until October 28, 2000. As a result, the district court’s failure to instruct the jury that Marcus could not be convicted based on his conduct before this date was plainly erroneous in light of the Ex Post Facto Clause’s prohibition against making an act a crime that was legal when committed, see Harris, 79 F.3d at 228. Because the government presented evidence that Marcus had fulfilled all the elements of both crimes before October 2000, thus making it factually possible that the jury could have convicted him based exclusively on pre-enactment conduct, we must vacate both convictions under Torres.
. We note that the evidence of harboring was not "overwhelming.” While it is undisputed that Marcus set Jodi up with a place to live at his friend's apartment in New York from January 2000 until 2001, Marcus never personally provided Jodi with housing, and the jury could have found that his actions did not amount to harboring. Alternatively, the juty may have never reached this issue, instead basing its findings on other alleged trafficking activities.
. In fact, the government presented evidence that one of the most severe punishments Marcus imposed on Jodi for her work on the website occurred in April 2001.
. Marcus notes that Jodi designed the website before the enactment of the statute and only maintained the site after the effective date. This distinction, however, is immaterial for purposes of the forced-labor statute.