A fractured en banc panel of the 3rd Circuit issued two important holdings in United States v. Nasir, but not before issuing four separate opinions totaling 125 pages. Easily, by comparison, the panel ruled that the comments to the Sentencing Guidelines are no longer entitled to Seminole Rock deference or Auer deference in light of Kisor v. Wilkie, 139 S.Ct. 2400 (2019). For the defendant, that ruling meant that his earlier inchoate conviction was not a controlled substance offense for the career offender enhancement because inchoate offenses are mentioned only in the comments, not the guidelines themselves. But the panel struggled to find common ground when interpreting Rehaif v. United States, 139 S.Ct. 2191 (2018), which held that the Government must prove a defendant knows he is among the relevant category of persons prohibited of possessing a firearm to sustain a conviction under 18 U.S.C. 922(g). Rehalf was issued while this appeal was pending, so its applicability was raised for the first time in a supplemental brief from the defense and was reviewed under the plain error standard. The majority of the panel adopted the minority view under plain error standard and held that a reviewing court cannot look beyond the trial record. Since the trial record could not show the necessary scienter, the defendant’s Section 922(g) conviction was vacated.
