For the Defense - Vol. 6, Issue 2 - 17

THE THIRD CIRCUIT'S EN BANC
DECISION IN U.S. v. NASIR: NOT THE
LAST WORD
C
riminal defense lawyers and prosecutors in
Pennsylvania are by now aware of the Third
Circuit's recent en banc decision in United States v.
Nasir1 that addressed two significant issues of criminal
law, both of which dealt with the effect of recent
Supreme Court cases.
Overruling its own precedent, the Nasir court first
held that inchoate crimes may no longer serve as a
predicate offense for the career offender enhancement
under § 4B1.1(a) of the federal sentencing guidelines.
The second issue involved the application of Rehaif v.
United States2
which held that the government's burden
of proof under 18 U.S.C. § 922(g) includes a showing that
the defendant knew both that he possessed a gun and
that he belonged to the relevant category of persons
barred from possessing a gun, a requirement that had
Caroline Cinquanto
and Amy Montemarano
not existed before Rehaif. The Third Circuit in Nasir held
that when reviewing on appeal a defense argument
under Rehaif that the government had failed to prove
the second element of the defendant's knowledge,
the court's examination is limited to the trial record on
plain error review. Thus, if there is no evidence on the
trial record that could have led a jury to convict on both
elements of knowledge, plain error has been shown.
Both of those rulings, which are discussed in more
detail below, add to the complexity of career offender
enhancements, § 922(g), and plain error review. That
complexity is represented not only by the several
concurrences, concurrences in part, and a dissent in part
in Nasir itself,3
but also by the disagreements among
several Circuits about the approach taken by Nasir.
Vol. 6, Issue 2 l For The Defense 17

For the Defense - Vol. 6, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2

For the Defense - Vol. 6, Issue 2 - 1
For the Defense - Vol. 6, Issue 2 - 2
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For the Defense - Vol. 6, Issue 2 - 4
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For the Defense - Vol. 6, Issue 2 - 6
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For the Defense - Vol. 6, Issue 2 - 17
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For the Defense - Vol. 6, Issue 2 - 41
For the Defense - Vol. 6, Issue 2 - 42
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