United States v. Chatwin

 motion. Exercising jurisdiction under

28 U.S.C. §§ 1291


 and 1253, we reverse and remand.

                                BACKGROUND

       In 2013, Chatwin pleaded guilty to two counts: (1) bank fraud (“Count 3”)

 and (2) using or carrying (and brandishing) a firearm during and in relation to a

 crime of violence, in violation of

(c)(1)(A)(ii) (“Count 9”). As

 part of the plea agreement, the government recommended dismissal of seven

 other charged counts, and Chatwin waived any right to collaterally attack his

 sentence (though not his convictions).

       In 2016, Chatwin filed a pro se § 2255 motion challenging his

 § 924(c)(1)(A)(ii) conviction and sentencing as unconstitutional under Johnson

 v. United States,

576 U.S. 591

 (2016) (holding that

(e)(2)(B)(ii)’s residual clause was unconstitutionally vague). As

 “supporting facts,” Chatwin simply wrote that “police chase not a violent

 crime.” R. vol. 1, at 9. The government moved to dismiss the § 2255 motion as

 insufficiently pleaded. Choosing not to address the merits of the motion, the

 government argued (1) that Chatwin had “knowingly and voluntarily waived his

 § 2255 rights in a Rule 11(c)(1)(C) plea agreement and that waiver is valid and

 enforceable;” and (2) that he had not filed his motion “within one year of the

 judgment” as required by § 2255(f)(1) and without an exception applying under



                                          2
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 § 2255(f)(3). Id. at 86. The government “deferred for later briefing” “other

 defenses and merits arguments.” Id. at 87.

       In 2020, by then represented by counsel, Chatwin moved to amend his

 motion after the issuance of United States v. Davis,

139 S. Ct. 2319, 2336


 (2019) (holding that § 924(c)(3)(B)’s residual clause was unconstitutionally

 vague). Though neither the plea agreement nor the plea colloquy stated whether

 the court based the § 924(c) conviction on § 924(c)(3)(A)’s elements clause,

 § 924(c)(3)(B)’s residual clause, or both, Chatwin contended that the district

 court relied solely on the residual clause (a question not yet resolved by the

 district court). From that, he argued under Davis that the district court needed

 to vacate his § 924(c) conviction and resentence him. In response, the

 government repeated its argument that Chatwin’s collateral-attack waiver in the

 plea agreement defeated any § 2255 claim, including one based on Davis. 1

       The district court agreed with the government’s collateral-attack-waiver

 argument and dismissed Chatwin’s § 2255 motion. Chatwin v. United States,

 No. 2:16-CV-932-RJS,

2020 WL 7212148

, at *4–6 (D. Utah Dec. 7, 2020). In

 doing so, the court took its cue from the parties and evaluated the

 enforceability of the collateral-attack waiver under the rule in United States v.


       1
         Though the district court did not address it, the government this time
 tagged on a short argument that the court had based Chatwin’s § 924(c)
 conviction on his “assault on federal officers using a dangerous or deadly
 weapon under

18 U.S.C. § 111

(b), as alleged in Count 8 of the Indictment.”

Id. at 218

. It asserted that under Tenth Circuit caselaw, § 111(b) qualifies as a
 crime of violence for § 924(c) purposes.
                                         3
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 Hahn,

359 F.3d 1315, 1325

 (10th Cir. 2004) (en banc) (per curiam).

Id.

 at *6–7.

 Addressing Hahn’s first prong, the court noted that “Chatwin does not argue his

 due process claim falls outside the waiver.” Id. at *3. It then turned to Hahn’s

 third prong, the one Chatwin relied on in his briefing. Id. at *4–6. There, the

 court considered whether enforcing the collateral-attack waiver would amount

 to a miscarriage of justice. Id. The district court thoroughly analyzed Chatwin’s

 argument on this point before rejecting it, denying Chatwin’s motion to amend

 his § 2255 motion, and dismissing the case. Id.

       Seeking relief in our court, Chatwin moved for a certificate of

 appealability and filed a brief in support. 2 This time, Chatwin raised a new

 argument—that his collateral-attack waiver must fail under the first Hahn

 prong, on grounds that his conviction-based § 2255 motion fell outside the

 scope of his collateral-attack waiver in the plea agreement. He argued that his

 waiver barred any collateral attacks to his sentence but not to his convictions.

                                  DISCUSSION

 I.    The standard of review on appeal is plain error.

       The district court dismissed Chatwin’s § 2255 motion without deciding

 its merits. Chatwin,

2020 WL 7212148

, at *6. It relied on the plea agreement’s


       2
         Judge Eid granted a certificate of appealability on the question of
 “whether waiver of the right to collaterally challenge a sentence prevents a
 collateral challenge to the underlying conviction.” United States v. Chatwin,
 No. 21-4003 (Dec. 15, 2021). Though the Davis issue wasn’t briefed, it
 obviously serves as the constitutional claim underlying Chatwin’s § 2255
 motion.
                                         4
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 collateral-attack waiver. Id. Because the district court dismissed without

 reaching the merits, and because Chatwin has first raised his “scope” of waiver

 on appeal, we review under the plain-error standard. See United States v.

 Frady,

456 U.S. 152

, 166 n.15 (1982) (“[T]he ‘plain error’ standard [may] be

 applied by a court of appeals on direct review of a district court’s conduct of

 the § 2255 hearing itself.”).

 II.   Plain-Error Review

       To show plain error, Chatwin must show: “(1) error that is (2) plain,

 (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or

 public reputation of judicial proceedings.” Abernathy v. Wandes,

713 F.3d 538, 553

 (10th Cir. 2013) (quoting United States v. DeChristopher,

695 F.3d 1082, 1091

 (10th Cir. 2012)). An error is plain if it is clear or obvious. United States

 v. Olano,

507 U.S. 725, 734

 (1993) (citations omitted).

       A.     Chatwin has shown the first two prongs of the plain-error
              standard.

       The government doesn’t comment on the first two prongs of the plain-

 error standard (apparently conceding them) on its way to the third. But we will

 address all four prongs of the standard. Examining the language of the

 collateral-attack waiver, we conclude that the district court plainly erred by

 dismissing based on a misreading of the waiver. As mentioned, the waiver bars

 Chatwin from collateral challenges to his sentence, not to his convictions:

       I also knowingly, voluntarily, and expressly waive my right to
       challenge my sentence, except [where the court imposes a sentence

                                           5
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       above the maximum penalty], in any collateral review motion, writ
       or other procedure, including but not limited to a motion brought
       under

, except on the issue of counsel’s ineffective
       assistance in negotiating or entering this plea or this waiver as set
       forth in United States v. Cockerham,

237 F.3d 1179, 1187

 (10th Cir.
       2001).

 R. vol. 2, at 27 (emphasis added). The collateral-attack waiver does not bar

 Chatwin from collaterally challenging his conviction. The waiver’s language is

 so clear that we could not seriously consider it amenable to a rival

 interpretation. Thus, Chatwin has shown error that is plain. 3

       B.     Chatwin has shown that the error affected his substantial
              rights.

       For an error to affect substantial rights, it must be prejudicial, meaning it

 generally must have “affected the outcome of the district court proceedings.”

 Olano,

507 U.S. at 734

. So Chatwin must show “a reasonable probability that,

 but for the error claimed, the result of the proceeding would have been

 different.” United States v. Gonzalez-Huerta,

403 F.3d 727, 733

 (10th Cir.

 2005) (quoting United States v. Dominguez Benitez,

542 U.S. 74, 82

 (2004)).

 Here, the district-court “proceeding” was to decide the government’s motion to




       3
          In arguing that he has met the plain-error standard, Chatwin directs us
 to United States v. Loumoli,

13 F.4th 1006

 (10th Cir. 2021). There, we ruled
 that a substantively identical collateral-attack waiver did not bar a collateral
 attack to the defendant’s conviction.

Id. at 1010

. Though Loumoli is consistent
 with our holding today, we rely on the precise terms of Chatwin’s collateral-attack waiver, not on that decision, which we issued nine months after the
 district court’s decision here.

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 dismiss (presented on the collateral-attack waiver, rather than on the merits). 4

 Chatwin,

2020 WL 7212148

, at *3–6. Accordingly, we hold that the “outcome

 of the proceeding” here means the outcome of the motion to dismiss—not

 matters beyond that.

        In contrast, the government contends that “the outcome of the

 proceedings” still reaches the ultimate ruling on the merits of the § 2255

 motion, despite the district court’s dismissal of the case on collateral-attack-

 waiver grounds. As support, the government offers cases of a different ilk than

 Chatwin’s—ordinary cases in which a district court decided the merits but made

 an analytical misstep along the way. Predictably, the plain error in those sorts

 of cases does not always affect the outcome of the district court’s merits

 adjudication. But the government offers no cases in which the district court

 hasn’t decided the underlying merits, let alone any cases in that posture in

 which the appellate court has interceded to resolve the merits by itself in the

 first instance. 5



        4
        Had the district court denied the government’s motion to dismiss, it
 would have needed to decide Chatwin’s Davis-based motion to amend his
 § 2255 motion.
        5
          As mentioned, Frady,

456 U.S. at 166

 n.15, directs us that “the ‘plain
 error’ standard [may] be applied by a court of appeals on direct review of a
 district court’s conduct of the § 2255 hearing itself.” Yet if the government
 were correct here that “the outcome of the proceedings” means the likely
 ultimate disposition of Chatwin’s § 2255 motion, Chatwin would need to meet
 the cause-and-prejudice standard for any arguments he did not raise on direct
 appeal. See id. at 167–68. Taken to its logical end, the government’s approach
                                          7
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       The government’s two primary cases are plain-error cases on direct

 review. In them, the district courts plainly erred while deciding the underlying

 merits. Both cases—Puckett v. United States,

556 U.S. 129

 (2009), and Olano,

 507 U.S. 725—are distinguishable from Chatwin’s.

       In Puckett, the Court reviewed for plain error a district court’s failure to

 enforce a plea-agreement term for an acceptance-of-responsibility reduction

 after the government opposed the reduction, even though the government

 initially promised to support it.

556 U.S. at 133

. The Court ruled that though

 the defendant had shown the first two prongs of plain error, he failed on the

 third prong, which requires prejudice.

Id. at 141

. Based on the defendant’s

 criminal conduct committed after the plea agreement, the Court ruled that a

 defendant fails to show prejudice if “he likely would not have obtained those

 benefits in any event (as is seemingly the case here).”

403 F.3d 1147, 1174, 1178

 at 142 & n.4.

       In other words, the district court erred in an analytical step when

 resolving the merits, but the error didn’t affect the outcome of the sentence

 imposed. The key takeaway is that Puckett is a poor analog for Chatwin’s case,

 because though the adjudicated merits of Puckett’s prison sentence would

 remain unchanged, the outcome of Chatwin’s case was not decided. In Puckett,

 the plain error related to the outcome of the case. For Chatwin’s situation to



 would render Frady’s direction to use the plain-error standard meaningless in
 this situation.

                                          8
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 parallel Puckett’s, the district court would have had to plainly err on the

 “scope-of-the-collateral-attack-waiver” issue but not in a way that would affect

 the outcome-of-the-scope issue. 6

       In Olano, the Court reviewed for plain error a district court’s seating

 alternative jurors during deliberations.

507 U.S. at 737

. Again, though finding

 plain error in that procedure, the Court concluded that the defendant had failed

 to show prejudice under the third prong of the plain-error analysis, reasoning

 that “the record before us contains no direct evidence that the alternative jurors

 influenced the verdict.”

Id. at 734, 737

. Again, the district court resolved the

 merits by seating the jurors. Nothing equivalent happened in Chatwin’s case.

       We conclude that Chatwin has shown substantial prejudice based on the

 dismissal of his § 2255 motion. He has shown that the outcome of “the

 proceeding” would have been different in that the district court could not have

 dismissed on the issue of the collateral-attack waiver’s scope. Absent plainly

 erring on the waiver’s scope, the district court could not have dismissed on that

 ground.




       6
        See also Resp. Br. 13 (citing United States v. Mendoza,

698 F.3d 1303, 1310

 (10th Cir. 2012) (finding no prong-three prejudice despite the
 government’s breaching the plea agreement by recommending a higher
 sentence, because the defendant could not show “a reasonable probability that
 he would have received a lesser sentence absent the government’s breach”)).

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        We express no view on the ultimate merits of the § 2255 motion but

  remand to the district court for its determination. 7 We decline the government’s

  invitation to resolve matters beyond the district court’s dismissal of the § 2255

  motion. Though the government offers its assurance that “Chatwin’s claim is

  meritless,” “because this Court has already held that the same predicate “crime

  of violence” for Chatwin’s § 924(c) conviction—18 U.S.C. § 111(b)—is in fact

  a crime of violence,” Resp. Br. 17–18, any argument on the merits is best first

  presented to the district court. If we decided them in the first instance on

  appeal, we might unfairly deny Chatwin an opportunity to make his case. We

  are uncertain what arguments he might raise. He filed a counseled motion to

  amend his pro se § 2255 motion. Though we know what it sought to amend

  months ago, we don’t know whether Chatwin would limit his legal theories to

  those previously expounded when prevented from going forward. The proper

  place for these matters is in the district court. Rather than rush to decide the

  merits, when the district court hasn’t yet done so, we should let the process

  play out in district court.

        C.     Chatwin has shown that the error affected the fairness of the
               judicial proceedings.




        7
          We note that the parties have not addressed whether Chatwin’s guilty
  plea may bar consideration of the merits of his claim under Tollett v.
  Henderson,

411 U.S. 258

 (1973), and Class v. United States,

138 S. Ct. 798

  (2018). On remand, the district court should consider that issue.
                                          10
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        Under the fourth prong of the plain-error standard, Chatwin must show

  that the district court’s dismissal of his § 2255 motion “seriously affect[s] the

  fairness, integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 732

 (alteration in original) (quoting United States v. Young,

470 U.S. 1, 15

 (1985)). Chatwin is entitled to proper resolution of his Davis claim. See

  United States v. Dazey,

 (10th Cir. 2005) (stating that

  we conduct plain-error review “less rigidly when reviewing a potential

  constitutional error” (internal citation omitted)). Exercising our discretion, we

  conclude that the district court’s error affected the fairness of the judicial

  proceedings in the district court.

                                   CONCLUSION


        We reverse the district court’s dismissal order and remand for further

  proceedings to decide Chatwin’s § 2255 motion.




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  21-4003, United States v. Chatwin

  McHUGH, Circuit Judge, dissenting:

         This court improvidently granted a certificate of appealability (“COA”), and I

  would vacate it. Alternatively, I would affirm the dismissal of Mr. Chatwin’s § 2255

  motion because the claimed error fails to satisfy the third and fourth prongs of our plain

  error standard.

                    I.   THE COA WAS IMPROVIDENTLY GRANTED

         Mr. Chatwin’s request for a COA did not meet the statutory requirements for

  granting a COA. Therefore, I would vacate the COA and dismiss for lack of jurisdiction.

         Congress authorizes us to review the denial of a motion under


  only where the movant obtains a COA.

28 U.S.C. § 2253

(c)(1)(B). A COA may issue

  “only if the applicant has made a substantial showing of the denial of a constitutional

  right.”

28 U.S.C. § 2253

(c)(2) (emphasis added). Where, as here,

         the district court denies a habeas petition on procedural grounds without
         reaching the prisoner’s underlying constitutional claim, a COA should issue
         when the prisoner shows, at least, that jurists of reason would find it
         debatable whether the petition states a valid claim of the denial of a
         constitutional right and that jurists of reason would find it debatable
         whether the district court was correct in its procedural ruling.

  Slack v. McDaniel,

529 U.S. 473, 484

 (2000) (emphasis added). “Section 2253 mandates

  that both showings be made before the court of appeals may entertain the appeal.”

Id. at 485

 (emphasis added).

         We do not routinely revisit the decision to grant a COA, and for good reason. “[I]t

  would be passing strange if, after a COA has issued, each court of appeals adjudicating
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  an appeal were dutybound to revisit the threshold showing and gauge its substantiality to

  verify its jurisdiction. That inquiry would be largely duplicative of the merits question

  before the court.” Gonzalez v. Thaler,

565 U.S. 134, 143

 (2012) (internal quotation marks

  and alteration omitted). But, where we have belatedly realized a COA should not have

  been granted for failure to satisfy some prerequisite, we have vacated such COAs.1

         Mr. Chatwin made only one substantial showing in his COA request: a procedural

  error. To satisfy our test for a COA, he had to show both a procedural error and denial of

  a constitutional right. Mr. Chatwin failed even to squarely argue the second prong of the

  COA test, let alone satisfy it. Mr. Chatwin has now fleshed out his constitutional

  argument somewhat, but the Supreme Court has admonished that “both showings”

  required for a COA from a procedural dismissal must be made “before the court of

  appeals may entertain the appeal.” Slack,

529 U.S. at 485

 (emphasis added). Mr. Chatwin

  failed to do so, and I would accordingly vacate the COA.

         Now that a COA has issued—even if improvidently—we have jurisdiction to

  entertain the appeal. See Gonzalez,

565 U.S. at 143

 (explaining that, while the

  requirement to obtain a COA is jurisdictional, the statutory criteria on which a COA may

  issue are non-jurisdictional). For the reasons I now explain, I would affirm the dismissal

  because the alleged error fails to satisfy the third and fourth prongs of the plain error test.


         1
           See, e.g., Holcomb v. Whitten,

836 F. App’x 682

, 690 (10th Cir. 2020)
  (unpublished) (vacating appellate-court-granted COA due to later determination that
  applicant had procedurally defaulted the claim); United States v. McGee,

760 F. App’x 610

, 612 (10th Cir. 2019) (unpublished) (vacating appellate-court-granted COA due to
  later realization that applicant had waived the claim).

                                                 2
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      II.    THE UNDERLYING CONSTITUTIONAL CLAIM IS MERITLESS

         I begin by observing that Mr. Chatwin’s underlying constitutional claim is

  meritless as a matter of law. Mr. Chatwin’s sole constitutional claim rests on the premise

  that the predicate offense for his § 924(c) conviction was § 111(a). This is based on an

  erroneous reading of the indictment and plea agreement, which instead indicate that the

  predicate offense was necessarily § 111(b), not § 111(a). The distinction between

  § 111(a) and § 111(b) is use of a deadly or dangerous weapon, with § 111(b) subjecting

  the crimes in § 111(a) to a sentencing enhancement when committed with such a

  weapon.2 In pleading guilty to the § 924(c) crime alleged in Count 9, Mr. Chatwin

  admitted to brandishing—i.e., using—a firearm. See United States v. Bowen,

527 F.3d 1065, 1074

 (10th Cir. 2008) (“[O]ne necessarily ‘uses’ a firearm while ‘brandishing’ such

  a weapon.”). Thus, he necessarily violated § 111(b).

         Furthermore, the predicate offense for a § 924(c) conviction must be a felony.3

  Section 111 contains three offenses—misdemeanor § 111(a), felony § 111(a), and felony



         2
          “Whoever, in the commission of any acts described in subsection (a), uses a
  deadly or dangerous weapon . . . shall be fined under this title or imprisoned not more
  than 20 years, or both.”

18 U.S.C. § 111

(b).
         3
           As relevant here,

(c)(1)(A) enhances the penalty for “any person
  who, during and in relation to any crime of violence . . . for which the person may be
  prosecuted in a court of the United States, uses or carries a firearm.” In turn,

(c)(3) defines “crime of violence” as “an offense that is a felony and—(A) has as an
  element the use, attempted use, or threatened use of physical force against the person or
  property of another, or (B) 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.” (emphasis added).

                                               3
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  § 111(b). United States v. Hathaway,

318 F.3d 1001

, 1007–09 (10th Cir. 2003). Felony

  § 111(a) requires physical contact or intent to commit another felony. United States v.

  Wolfname,

835 F.3d 1214, 1218

 (10th Cir. 2016). Felony § 111(b) requires, instead, use

  of “a deadly or dangerous weapon.”

18 U.S.C. § 111

(b). Mr. Chatwin was not charged

  with and did not admit to physical contact or intent to commit another felony. He was

  charged with and did admit to use of a deadly or dangerous weapon. Accordingly, the

  only § 111 felony whose elements Mr. Chatwin admitted to is § 111(b).

         For these reasons, the only possible predicate offense for Mr. Chatwin’s § 924(c)

  conviction was § 111(b), not § 111(a). And because § 111(a) was not the predicate

  offense for Mr. Chatwin’s § 924(c) conviction, his argument that § 111(a) is not

  categorically a crime of violence provides no basis for relief from his § 924(c)

  conviction.4

  III.    THE ALLEGED PROCEDURAL ERROR DOES NOT MEET THE PLAIN
                          ERROR STANDARD

         We review an argument raised for the first time on appeal for plain error only.

  United States v. Gonzalez-Huerta,

403 F.3d 727, 732

 (10th Cir. 2005). To show plain

  error, a party must show “(1) error, (2) that is plain, which (3) affects substantial rights,

  and which (4) seriously affects the fairness, integrity, or public reputation of judicial

  proceedings.”

 All four prongs must be satisfied before we can exercise our discretion


         4
          My colleagues suggest Mr. Chatwin might make new arguments on remand. But
  the burden on plain error review is Mr. Chatwin’s, United States v. Gonzalez-Huerta,

403 F.3d 727, 733

 (10th Cir. 2005), and the only argument he makes is that § 111(a) is not
  categorically a crime of violence.

                                                 4
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  to correct an error that was not timely raised. Johnson v. United States,

520 U.S. 461

,

  466–67 (1997). The Government concedes error in light of our ruling in United States v.

  Loumoli,

13 F.4th 1006

, 1009–10 (10th Cir. 2021), and does not dispute the second and

  fourth plain error prongs. The Government correctly argues the claimed error fails the

  third prong, and, as I explain below, the error also fails the fourth prong.

                  A.     Prong Two: The Majority’s Rationale is Insufficient

            I would not reach the second plain error prong but, because my colleagues discuss

  it, I note my disagreement with their rationale. “An error is plain if it is clear or obvious

  under current, well-settled law.” Utah Physicians for a Healthy Env’t v. Diesel Power

  Gear, LLC,

21 F.4th 1229, 1252

 (10th Cir. 2021) (internal quotation marks and citation

  omitted). “Plain” error has been called error so plain a court would be “derelict in

  countenancing it, even absent the defendant’s timely assistance detecting it.” United

  States v. Frady,

456 U.S. 152, 163

 (1982). The error need not have been plain at the time

  of the district court’s decision; “it is enough that an error be ‘plain’ at the time of

  appellate consideration.” Johnson,

520 U.S. at 468

; see also Gonzalez-Huerta,

403 F.3d at 732

.

            The majority relies on the language of the waiver to conclude it covers only

  Mr. Chatwin’s sentence and not his conviction. This shows error, but it does not show

  plainness. The waiver was open to a variety of reasonable interpretations, including the

  Government’s reading of a nearly identical waiver in Loumoli as barring challenges to




                                                 5
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  both the sentence and the conviction.5 Without identifying “clear, well-settled law” that

  requires us to accept the majority’s interpretation instead of a reasonable alternative, the

  majority has not shown the error was plain.

         Although I disagree with the majority’s reasoning, I agree with its conclusion that

  the error is plain. Loumoli held that a waiver of the right to challenge a sentence does not

  waive the right to challenge a conviction, 13 F.4th at 1010, clearly showing the district

  court erred in finding Mr. Chatwin’s appeal waiver to bar his challenge to his conviction.

         The majority notes Loumoli was decided after the district court’s decision in this

  case, but we judge the plainness of an error on direct appeal by the law in effect at the

  time of the appeal, not at the time of the district court’s decision. See Johnson,

520 U.S. at 468

; Gonzalez-Huerta,

403 F.3d at 732

. The majority appears concerned that applying

  Loumoli would be inconsistent with the contrary rule that a party seeking collateral

  review does not receive the benefit of intervening law. But Mr. Chatwin does not point to

  Loumoli to argue he was erroneously denied habeas relief based on an error committed at

  trial or sentencing; rather, he points to Loumoli to show the district court erred in

  dismissing his case based on his appeal waiver during the habeas proceedings. Put

  another way, we are not performing collateral review of the trial court proceedings




         5
          The language of these waivers tracks the language of

, which
  authorizes challenges to “sentences,” not “convictions.” Yet federal courts interpret
  § 2255 to allow challenges to convictions as well. See United States v. Loumoli,

13 F.4th 1006

, 1010 (10th Cir. 2021) (citing Sandusky v. Goetz,

944 F.3d 1240, 1246

 (10th Cir.
  2019)).

                                                6
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  resulting in Mr. Chatwin’s sentence or conviction;6 we are performing what the Supreme

  Court refers to as “direct review” of the district court’s procedural decision in a habeas

  case. Frady,

456 U.S. at 166

 n.15 (explaining that, although plain error is not an

  appropriate standard on collateral review, it may be applied “by a court of appeals on

  direct review of a district court’s conduct of the § 2255 [proceedings]”). Therefore, we

  employ plain error as we would on direct appeal. Id. (“A court of appeals . . . could

  invoke the ‘plain error’ standard on direct review of a district court’s conduct of a § 2255

  hearing, if the court of appeals found a sufficiently egregious error in the § 2255

  proceeding itself that had not been brought to the attention of the district court.”).

         Thus, I would conclude the error is plain based on our decision in Loumoli.

             B.     Prong Three: The Error Did Not Affect Substantial Rights

         To satisfy the third prong of the plain error test, a defendant must “satisfy the

  judgment of the reviewing court, informed by the entire record, that the probability of a

  different result is sufficient to undermine confidence in the outcome.” United States v.

  Dominguez Benitez,

542 U.S. 74, 83

 (2004) (internal quotation marks and citation

  omitted). The Supreme Court has advised that the standard we apply to the third prong of

  plain error review “should enforce the policies that underpin Rule 52(b) generally, to

  encourage timely objections and reduce wasteful reversals by demanding strenuous



         6
          In the context of collateral review, the Supreme Court has explained that the
  review of an unpreserved trial error in habeas proceedings is governed by the rules of
  “cause and actual prejudice,” not plain error. United States v. Frady,

456 U.S. 152, 166

(1982).

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exertion to get relief for unpreserved error.” Id. at 82 (citation omitted). Among the

factors we may consider is whether the error invaded a constitutional right or merely

violated a procedural rule. Id. at 83 (“[I]n this case, these reasons [for finding insufficient

prejudice to meet third prong] are complemented by the fact, worth repeating, that the

violation claimed was of Rule 11, not of due process.”).

The majority finds the third prong satisfied because the district court did not have

the opportunity to review the merits in the first instance. My colleagues do not specify

which right of Mr. Chatwin this affected, nor do they explain why such a right was

“substantial.” They simply equate dismissal with prejudice. In my view, more is required.

Sending this case back to the district court without requiring Mr. Chatwin to demonstrate

harm beyond the procedural error itself does not encourage timely objections. Finding the

third plain error prong met here also does not discourage wasteful reversals—because

Mr. Chatwin’s substantive claim is meritless as a matter of law, it is wasteful to remand

for further proceedings in the district court. Complementing these observations is the fact

that the claimed “plain error” is a mere procedural error as to the scope of an appeal

waiver, not a constitutional error.

Although my colleagues are correct that Puckett v. United States is not perfectly

on point, its analysis is instructive.

556 U.S. 129

, 140–41 (2009). In Puckett, the Supreme

  Court evaluated a procedural error at sentencing under the plain error standard and

  explained:

         A plea breach does not necessarily render a criminal trial fundamentally
         unfair or an unreliable vehicle for determining guilt or innocence; it does
         not defy analysis by harmless-error standards by affecting the entire

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           adjudicatory framework; and the difficulty of assessing the effect of
           the error is no greater with respect to plea breaches at sentencing than with
           respect to other procedural errors at sentencing, which are routinely
           subject to harmlessness review.

Id. at 141

 (internal quotation marks and citations omitted) (emphasis added). The

  majority rejected the dissent’s position that there is always an impairment of substantial

  rights under the third prong where a defendant is convicted “in the absence of trial or

  compliance with the terms of a plea agreement.”

Id. at 142

. The Court explained:

           [T]hat is simply an ipse dixit recasting the conceded error—breach of the
           plea agreement—as the effect on substantial rights. Any trial error can be
           said to impair substantial rights if the harm is defined as “being convicted
           at a trial tainted with [fill-in-the-blank] error.” Nor does the fact that there
           is a “protected liberty interest” at stake render this case different. That
           interest is always at stake in criminal cases. Eliminating the third plain-error prong through semantics makes a nullity of Olano’s instruction that a
           defendant normally “must make a specific showing of prejudice” in order
           to obtain relief.

 at 142 (quoting Olano,

507 U.S. 725, 735

 (1993)). Thus, the majority firmly rejected

  the notion that prejudice can be shown merely from denial of proceedings free from the

  error.

           As my colleagues point out, Puckett was a direct appeal from a criminal

  conviction, not an appeal from dismissal of a habeas motion. But the Supreme Court in

  Frady clarified that the standard on direct review of a procedural error made during

  collateral proceedings where the argument was not preserved is plain error,

456 U.S. at 166

 n.15—the same as in Puckett. And Puckett supports the proposition that, on plain

  error review, remand is not required where correcting the procedural error would not

  change the substantive outcome. Our circuit precedent is the same. See, e.g., United


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  States v. Chavez-Morales,

894 F.3d 1206

, 1216–17 (10th Cir. 2018) (holding plain

  procedural sentencing error failed prong three because it did not impact substantial

  rights); United States v. Begaye,

635 F.3d 456, 471

 (10th Cir. 2011) (same); United

  States v. Mendoza,

543 F.3d 1186, 1194

 (10th Cir. 2008) (same).

         In adopting a rule that a procedural error resulting in dismissal of a habeas claim is

  per se prejudicial, my colleagues do exactly what Puckett admonished against. Any

  procedurally erroneous dismissal can be said to impair substantial rights if the harm is

  defined as the dismissal itself. That is not a “specific showing of prejudice” as required

  by Olano but an “ipse dixit recasting the [procedural error] as the effect on substantial

  rights.”

556 U.S. at 142

. This is a case in point. The argument for finding the third prong

  met here is at least as weak as in Puckett because, even if the procedural error is

  corrected, as a matter of law Mr. Chatwin will not be entitled to relief. His argument that

  the predicate offense for his § 924(c) conviction was § 111(a) is meritless. Thus, even if




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  the dismissal was procedurally erroneous, it did not affect his substantial rights.7 This is

  not, as my colleagues suggest, an improper “rush to decide the merits”; it is

  straightforward third-prong plain error review.

         I do not advocate a full merits determination on the third plain error prong in every

  case of arguable plain error. There are often factual questions to be resolved in the district

  court. See, e.g., United States v. Brown,

640 F. App’x 752

 (10th Cir. 2016) (unpublished)

  (McHugh, Circuit Judge) (finding third prong met where procedural error prevented the

  district court from reaching the merits and factual issues essential to resolving the merits

  needed to be developed on remand). It may also be that we are not well positioned to rule

  on the merits of some purely legal questions, whether because they have not been briefed

  or for other reasons. But where a claim has been briefed and is meritless as a matter of

  law, and no further factfinding by the district court could change that outcome, the

  procedural error was not prejudicial and therefore cannot meet the third plain error prong.


         7
            Even under de novo review, we deny remand for procedural errors where there is
  no likelihood of success on the merits. See, e.g., United States v. Gonzalez-Fierro,

949 F.3d 512

, 522–24 (10th Cir. 2020) (explaining that to demonstrate prejudice from a
  procedural error in deportation proceedings the alien must show at least a reasonable
  probability that he would not have been deported in the absence of the error); Anderson v.
  United Tel. Co. of Kan.,

933 F.2d 1500

, 1503–04 (10th Cir. 1991) (determining that even
  if district court procedurally erred in granting a judgment notwithstanding the verdict on
  grounds not presented with sufficient specificity, remand was unwarranted because the
  district court correctly analyzed the issue); see also United States v. Luna,

436 F.3d 312

,
314–15, 321–23 (1st Cir. 2006) (holding that immigration judge’s procedural error of
refusing to consider the merits of an application for relief from deportation did not
prejudice alien because he would not have prevailed on his arguments against deportation
even had they been adjudicated). It is inconsistent with the varying difficulty imposed by
our standards of review to remand on plain error where the appellant cannot, as a matter
of law, succeed on the merits, but deny remand on de novo review.

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Here, the indictment and the plea agreement conclusively resolve Mr. Chatwin’s

claim. The predicate offense for his conviction was not § 111(a). Nothing the district

court might do will change that. Because there is no possibility Mr. Chatwin can prevail

on his substantive claim, the procedural error did not affect his substantial rights and, in

my view, this prong of plain error is unmet.

Nor am I persuaded by my colleagues’ suggestion that we do not know what

arguments Mr. Chatwin may raise in the district court. We know exactly what his

argument is. In his proposed amended § 2255 motion, Mr. Chatwin argued that his

§ 924(c) conviction was predicated on § 111(a), and § 111(a) was not categorially a crime

of violence. In his opening brief in this court, he tells us he will make the same argument

on remand. Appellant’s Br. at 9 n.2 (“[O]n remand, Mr. Chatwin will show that the

§ 924(c) conviction was actually based on § 111(a) . . . , which this court has held does

not categorically require the use of violent force.”). He devotes four pages of his

appellate reply brief to this same argument. If Mr. Chatwin had other potentially

meritorious arguments that might justify remand, the burden was his to present them to

us. Gonzalez-Huerta,

403 F.3d at 733

. He did not. Because Mr. Chatwin’s only argument

  must fail, the district court’s dismissal did not affect any substantial right and the third

  plain error prong is unmet.




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  C.      Prong Four: The Error Was Not Egregious and Declining to Remand Would
                           Not Result in a Miscarriage of Justice

         Even if the alleged procedural error satisfied the third plain error prong, it would

  fail the fourth prong. We have said:

         Under the fourth prong of plain-error review, a court may exercise its
         discretion to notice a forfeited error only if it seriously affects the fairness,
         integrity, or public reputation of judicial proceedings. As such, we will not
         notice a non-constitutional error, such as the one in the case before us,
         unless it is both particularly egregious and our failure to notice the error
         would result in a miscarriage of justice. This is a demanding standard[.]

  Gonzalez-Huerta, 403 F.3d at 736–37 (internal quotation marks and citations omitted)

  (emphasis added). We have previously noted that the Supreme Court “consistently

  applie[s]” the fourth plain error prong “rigorously.”

Id.

 at 737 (citing Johnson, 520 U.S.

  at 469–70). The appellant bears the burden of showing this standard is met.

Id.


         In Gonzalez-Huerta, we rejected the appellant’s conclusory statement that “to

  leave standing this sentence imposed under the mandatory guideline regime, we have no

  doubt, is to place in jeopardy the fairness, integrity, or public reputation of judicial

  proceedings,” calling this “a far cry from establishing that a miscarriage of justice would

  occur if we do not remand.”

Id. at 739

. Rather, we held that the procedural error—

  mandatory application of the Sentencing Guidelines—did not satisfy the fourth plain

  error prong for several reasons.

Id.

 at 737–39. First, although the rule had underpinnings

  in the Sixth Amendment, the error itself did not violate any constitutional right.

Id. at 738

. Second, the appellant’s sentence was within the national norm and there was no

  record evidence to support a lower sentence.

Id.

 at 738–39. Third, the error did not


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  jeopardize “basic notions of justice.”

Id. at 739

. “[B]ased upon the culmination of these

  factors,” we decided the error failed to satisfy the fourth plain error prong.

Id.

 Notably,

  we concluded Prong Four was unmet even if the error had affected the appellant’s

  substantial rights on the third prong.

Id. at 736

.

         In United States v. Mitchell, we similarly declined to reverse for plain error where

  the claimed error was failure to apply the exclusionary rule, despite the rule’s foundation

  in the Fourth Amendment.

783 F.2d 971, 978

 (10th Cir. 1986). We reasoned:

         [U]nder the plain error inquiry, reversal is mandated only to correct
         particularly egregious errors, those errors that seriously effect [sic] the
         fairness, integrity or public reputation of judicial proceedings. . . . Although
         an individual has a personal privacy interest in the protections of the Fourth
         Amendment, the exclusionary rule is a judicially created remedy rather
         than a personal constitutional right of the aggrieved individual. It is
         incumbent on an aggrieved party to raise the issue. . . . The exclusionary
         rule is not, therefore, a constitutional matter that involves the plain error
         rule in all cases. To so hold would make superfluous the requirement of a
         pretrial motion to suppress.