                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 17-10252
          Plaintiff-Appellee,
                                        D.C. No.
             v.                  3:16-cr-00251-WHA-1

LAMAR JOHNSON,
       Defendant-Appellant.               OPINION

   On Remand From the United States Supreme Court

         Argued and Submitted March 12, 2020
              San Francisco, California

                   Filed June 25, 2020

  Before: J. Clifford Wallace, Johnnie B. Rawlinson,
         and Paul J. Watford, Circuit Judges.

               Opinion by Judge Watford
2                 UNITED STATES V. JOHNSON

                          SUMMARY *


                          Criminal Law

   On remand from the Supreme Court for further
consideration in light of Rehaif v. United States, 139 S. Ct.
2191 (2019), the panel affirmed convictions for being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).

    Rehaif held that a defendant may be convicted under
§ 922(g) only if the government proves that the defendant
“knew he belonged to the relevant category of persons
barred from possessing a firearm” – in this case, those
convicted of a crime punishable by more than one year of
imprisonment.

     Because the defendant did not raise his sufficiency-of-
the-evidence challenge in the district court, the panel
reviewed for plain error. The government conceded that the
first two prongs of plain-error review (an error that was clear
or obvious) are met, and the panel assumed without deciding
that the third prong (the error affected the defendant’s
substantial rights) are satisfied.

     The panel held that in assessing the fourth prong – that
the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings – this court may consider
the entire record on appeal, not just the record adduced at
trial. The panel explained that if a hypothetical retrial is
certain to end in the same way as the first one, then refusing

    *
      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. JOHNSON                     3

to correct an unpreserved error will, by definition, not result
in a miscarriage of justice, and that choosing to correct the
error in those circumstances would produce the very sort of
wasteful reversals that Fed. R. Crim. P. 52(b) aims to avoid.

    With that understanding of the inquiry required, the
panel saw no basis in this case for limiting its review to the
record adduced at trial, as the record on appeal contains
additional evidence the government would introduce to
prove that the defendant knew of his status as a convicted
felon. Given the overwhelming and uncontroverted nature
of that evidence, the panel concluded that the defendant
cannot show that refusing to correct the district court’s error
would result in a miscarriage of justice.



                         COUNSEL

Robin Packel (argued), Assistant Federal Public Defender;
Steven G. Kalar, Federal Public Defender; Office of the
Federal Public Defender Oakland, California; for
Defendant-Appellant.

Alexis J. Loeb (argued) and Philip Kopczynski, Assistant
United States Attorneys; Merry Jean Chan, Chief, Appellate
Section, Criminal Division; David L. Anderson, United
States Attorney; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellee.
4                UNITED STATES V. JOHNSON

                          OPINION

WATFORD, Circuit Judge:

    When this case was last before us, we affirmed Lamar
Johnson’s convictions for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). United States
v. Johnson, 913 F.3d 793 (9th Cir. 2019). After we issued
our opinion, the Supreme Court decided Rehaif v. United
States, 139 S. Ct. 2191 (2019). There, the Court held that a
defendant may be convicted under § 922(g) only if the
government proves that the defendant “knew he belonged to
the relevant category of persons barred from possessing a
firearm”—in our case, those convicted of a crime punishable
by more than one year of imprisonment. Id. at 2200.
Johnson filed a petition for certiorari in which he argued for
the first time that the government failed to prove at trial that
he knew of his status as a convicted felon. The Supreme
Court granted his petition, vacated the judgment, and
remanded the case for further consideration in light of
Rehaif. 140 S. Ct. 440 (2019).

    Following remand, we received supplemental briefs
from the parties and heard oral argument. After considering
the parties’ contentions regarding the effect of Rehaif, we
again affirm Johnson’s convictions.

    The background facts may be briefly summarized. The
government charged Johnson with various drug and firearms
offenses, including two counts of being a felon in possession
of a firearm. Johnson moved to suppress the firearms and
other evidence found during searches of his home and car.
The district court denied the motion. To facilitate appellate
review of that ruling, Johnson waived his right to a jury trial
and agreed to proceed with a stipulated-facts bench trial. In
lieu of calling witnesses, the parties submitted a written
                UNITED STATES V. JOHNSON                     5

stipulation describing the agreed-upon facts, which
included, as relevant here, that two different firearms were
found in Johnson’s possession on separate dates and that,
prior to the dates in question, he “had been convicted of a
felony, i.e., a crime punishable by imprisonment for a term
exceeding one year.” On the basis of the stipulated facts, the
district court found Johnson guilty of violating 18 U.S.C.
§ 922(g)(1).

    Johnson did not argue in the district court that the
evidence was insufficient to sustain his convictions, which
is understandable. At the time of Johnson’s trial, our
circuit’s law did not require the government to prove that a
defendant knew of his status as a convicted felon. See
United States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997).
The Supreme Court’s intervening decision in Rehaif has of
course changed the law in that regard. Nevertheless, because
Johnson did not raise his sufficiency-of-the-evidence
challenge in the district court, we review that challenge for
plain error under Federal Rule of Criminal Procedure 52(b).
See United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir.
2019).

     To establish plain error, Johnson must show that (1) there
was an error, (2) the error is clear or obvious, (3) the error
affected his substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. Id. The government concedes that the
first two prongs are met: The district court erred by not
requiring the government to prove Johnson’s knowledge of
his status as a convicted felon, and that error is now clear
following Rehaif. We will further assume without deciding
that the district court’s error affected Johnson’s substantial
rights, thereby satisfying the third prong. Only the fourth
prong remains in dispute.
6                UNITED STATES V. JOHNSON

     The central issue we must decide is whether, in assessing
the fourth prong of the plain-error standard, we may consider
the entire record on appeal or only the record developed at
trial. If we are limited to considering the trial record alone,
as Johnson urges, his case for reversal appears strong. The
factual stipulation submitted by the parties does not state
whether Johnson knew he had been convicted of a crime
punishable by imprisonment for more than a year. It merely
states, as a matter of historical fact, that Johnson had
previously been convicted of “a crime punishable by
imprisonment for a term exceeding one year.” Without more
information about the nature of the crime or the length of the
sentence imposed, a rational trier of fact would be hard
pressed to infer that Johnson knew of his prohibited status as
required under Rehaif. And that failure of proof might well
be deemed to affect the fairness or integrity of the judicial
proceedings resulting in his convictions. See United States
v. Cruz, 554 F.3d 840, 851 (9th Cir. 2009).

     As Johnson correctly notes, when deciding whether
sufficient evidence supports a conviction, our review
ordinarily is confined to the evidence submitted to the trier
of fact. We ask whether “the record evidence adduced at the
trial” was sufficient to permit a rational trier of fact to find
the defendant guilty beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 324 (1979); see United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). The
same standard frames our review of sufficiency-of-the-
evidence challenges under the plain-error standard as well.
See United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011).

    One of the plain-error cases on which Johnson relies,
United States v. James, 987 F.2d 648 (9th Cir. 1993), starkly
illustrates application of the rule limiting review to the
evidence adduced at trial. In that case, the defendant
                 UNITED STATES V. JOHNSON                      7

stipulated to the federally insured status of the victim bank,
but the prosecutor forgot to read the stipulation to the jury.
We reversed the defendant’s conviction because, as a result
of the prosecutor’s mistake, the trial record lacked any
evidence to support an essential element of the crime—even
though, we assumed, undisputed proof of that element
existed in the form of the defendant’s own stipulation. Id. at
650–51. (We did not explicitly state that we were applying
plain-error review, but Rule 52(b) undoubtedly governed
given that the defendant had not raised his sufficiency-of-
the-evidence challenge in the district court. See id. at 654
(Alarcon, J., dissenting).)

    The rule confining our review to the trial record, as
applied in James, is derived from the dictates of the Double
Jeopardy Clause. If the government introduces insufficient
proof at trial to sustain a conviction, a retrial at which the
government could cure the evidentiary deficiency is not
permitted; instead, the defendant is entitled to reversal of his
conviction and entry of a judgment of acquittal. See Burks
v. United States, 437 U.S. 1, 11 (1978). As we stated in
United States v. Weems, 49 F.3d 528 (9th Cir. 1995), “the
‘core’ of the Double Jeopardy Clause’s prohibition on
multiple prosecutions is denying the prosecution a second
opportunity ‘to supply evidence which it failed to muster in
the first proceeding.’” Id. at 531 (quoting Tibbs v. Florida,
457 U.S. 31, 41 (1982)). Thus, even when a defendant
challenges the sufficiency of the evidence for the first time
on appeal, the validity of the defendant’s conviction must
rise or fall on the record submitted to the trier of fact, and no
retrial will follow if the government’s evidence is found
wanting.

    There is an exception to this general rule, however, and
it applies in the circumstances present here. We held in
8                UNITED STATES V. JOHNSON

Weems that the Double Jeopardy Clause does not bar a retrial
when the government’s evidence was sufficient to sustain a
conviction at the time of trial, but has subsequently been
rendered insufficient due to an intervening change in the law.
Id. In Weems, the government introduced sufficient
evidence to sustain a conviction under the law as it stood at
the time of trial, but the Supreme Court subsequently held
that the charged offense required proof of an additional
knowledge element. Id. at 530. We noted that “[t]he
government had no reason to introduce such evidence
because, at the time of trial, under the law of our circuit, the
government was not required to prove that a defendant knew
that structuring was illegal.” Id. at 531. In those
circumstances, we concluded, the Double Jeopardy Clause
does not bar a retrial because the government “is not being
given a second opportunity to prove what it should have
proved earlier.” Id.

    The exception established in Weems applies here
because the evidence submitted during the stipulated-facts
bench trial was more than sufficient to support Johnson’s
convictions under the law existing at the time of trial. The
evidence was rendered insufficient only by the Supreme
Court’s subsequent decision in Rehaif, which means the
government would be permitted to retry Johnson. In our
view, the fact that a retrial is authorized distinguishes this
case from James and permits us to review the entire record
on appeal—not just the record adduced at trial—in assessing
whether Johnson has satisfied the fourth prong of plain-error
review.

    Under the fourth prong, Johnson must show that the
district court’s error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.               That
requirement helps enforce one of Rule 52(b)’s core policies,
                 UNITED STATES V. JOHNSON                     9

which is to “reduce wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.”
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
As the Supreme Court has stated, Rule 52(b) authorizes
courts to correct unpreserved errors, but that power “is to be
‘used sparingly, solely in those circumstances in which a
miscarriage of justice would otherwise result.’” United
States v. Young, 470 U.S. 1, 15 (1985) (quoting United States
v. Frady, 456 U.S. 152, 163 n.14 (1982)).

    To satisfy the fourth prong when a retrial would be
permissible, a defendant must offer a plausible basis for
concluding that an error-free retrial might end more
favorably. For if the hypothetical retrial is certain to end in
the same way as the first one, then refusing to correct an
unpreserved error will, by definition, not result in a
miscarriage of justice. Indeed, choosing to correct the error
in those circumstances would produce the very sort of
“wasteful reversals” that Rule 52(b) aims to avoid.
Dominguez Benitez, 542 U.S. at 82.

    The Supreme Court’s most analogous plain-error cases
support this view, albeit without analyzing the issue
explicitly in these terms. In Johnson v. United States,
520 U.S. 461 (1997), the Court was asked to decide whether
the district court’s plain error in failing to submit an element
of the offense to the jury warranted relief under Rule 52(b).
Id. at 463. The Court assumed that the error affected the
petitioner’s substantial rights but held that she could not
satisfy the fourth prong of plain-error review because the
evidence supporting the omitted element—materiality—was
“overwhelming” and “essentially uncontroverted.” Id.
at 469–70. The Court stressed that, even in her briefs on
appeal, “petitioner has presented no plausible argument that
the false statement under oath for which she was convicted
10               UNITED STATES V. JOHNSON

. . . was somehow not material to the grand jury
investigation.” Id. at 470. Presumably, if the petitioner had
articulated a plausible argument for why the jury could have
found in her favor on materiality, remand for a retrial at
which the jury was required to decide that element would
have been warranted. But in the absence of any such
argument, the Court concluded that no miscarriage of justice
would result by leaving the district court’s error uncorrected.
See id.

    The Court reached the same conclusion in United States
v. Cotton, 535 U.S. 625 (2002). That case involved a drug-
trafficking prosecution in which the indictment failed to
allege a fact—drug quantity—required under the rule
established in Apprendi v. New Jersey, 530 U.S. 466 (2000).
See Cotton, 535 U.S. at 627–28. As in Johnson, the Court
assumed that the defendants’ substantial rights were affected
by the error but found the fourth prong of plain-error review
had not been satisfied. Id. at 632–33. Relying on the
“overwhelming and uncontroverted” evidence establishing
that the defendants had trafficked in quantities well above
the relevant thresholds, the Court held that the error did not
seriously affect the fairness, integrity, or public reputation of
their proceedings. Id. at 633–34. After cataloging the
evidence introduced at trial, the Court observed: “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.” Id. at 633. In other words, no
point would have been served by reversing the defendants’
convictions and requiring the prosecution to begin anew with
an indictment issued by a properly instructed grand jury.

    Johnson and Cotton confirm that the fourth prong of
plain-error review is designed, in part, to weed out cases in
which correction of an unpreserved error would ultimately
                 UNITED STATES V. JOHNSON                    11

have no effect on the judgment. In those two cases, the Court
was not attempting to determine whether the grand and petit
juries had actually made the findings required for indictment
or conviction, notwithstanding the challenged errors. It was
undisputed that the juries had not done so, because they had
not been asked to make those findings. The Court was thus
engaged in making a predictive judgment about whether, if
the defendants’ convictions were reversed and the
prosecution or trial had to start over, the outcome would
potentially be any different. In the face of overwhelming
and uncontroverted evidence suggesting that the answer was
no, and with the defendants offering no plausible argument
to conclude otherwise, the Court held that the errors in
question did not seriously affect the fairness, integrity, or
public reputation of judicial proceedings. In fact, the Court
stated, “it would be the reversal of [the defendant’s
conviction] which would have that effect.” Johnson,
520 U.S. at 470 (emphasis added); see Cotton, 535 U.S. at
634.

     With that understanding of the inquiry required here, we
see no basis for limiting our review under the fourth prong
to the record adduced at trial. To be sure, in most cases
involving       unpreserved         sufficiency-of-the-evidence
challenges, the portions of the record on appeal outside the
trial record will be irrelevant to the analysis. In the ordinary
case, as in James, a retrial will not be permitted if the
government’s evidence is found insufficient, so the validity
of the defendant’s conviction must be judged based on the
trial record alone. Even in cases subject to the exception
created in Weems, the record on appeal will often not
disclose what additional evidence the government might
possess to prove an element that it had no reason to prove
during the first trial. But if the record on appeal does
disclose what that evidence consists of, and the evidence is
12               UNITED STATES V. JOHNSON

uncontroverted, we can think of no sound reason to ignore it
when deciding whether refusal to correct an unpreserved
error would result in a miscarriage of justice.

     In this case, the record on appeal contains additional
evidence the government would introduce to prove that
Johnson knew of his status as a convicted felon. And given
the overwhelming and uncontroverted nature of that
evidence, Johnson cannot show that refusing to correct the
district court’s error would result in a miscarriage of justice.
According to the presentence report prepared in this case, at
the time he possessed the firearms, Johnson had sustained
the following convictions: a 1998 felony conviction for
which he received a sentence of 28 months in prison; a 2004
felony conviction for which he received a sentence of two
years in prison; and a 2007 felony conviction for which he
was again sentenced to two years in prison. In his
supplemental brief, Johnson does not dispute the accuracy of
the presentence report’s description of his criminal history.
In light of the sentences imposed in his earlier cases, Johnson
cannot plausibly argue that a jury (or judge, if he opted again
for a bench trial) would find that he was unaware of his status
as someone previously convicted of an offense punishable
by more than a year in prison. After all, he had in fact
already served three prior prison sentences exceeding one
year. Cf. Rehaif, 139 S. Ct. at 2198 (noting that a defendant
“who was convicted of a prior crime but sentenced only to
probation” might be able to claim that he did not know he
had been convicted of a crime punishable by more than a
year of imprisonment).

   Several of our sister circuits have relied on
uncontroverted evidence that a defendant was sentenced to
more than a year in prison when rejecting post-Rehaif
challenges to trial verdicts under plain-error review. See,
                   UNITED STATES V. JOHNSON                           13

e.g., United States v. Maez, __ F.3d __, 2020 WL 2832113,
at *11 (7th Cir. 2020); United States v. Miller, 954 F.3d 551,
559–60 (2d Cir. 2020); see also Benamor, 937 F.3d at 1189. 1
We conclude that such evidence will ordinarily preclude a
defendant from satisfying the fourth prong of plain-error
review when challenging the sufficiency of the evidence that
he knew of his status as a convicted felon.

    AFFIRMED.




    1
      Courts have relied on similar evidence in rejecting post-Rehaif
challenges in the guilty-plea context as well. See, e.g., United States v.
Williams, 946 F.3d 968, 973–74 (7th Cir. 2020); United States v.
Burghardt, 939 F.3d 397, 404 (1st Cir. 2019); but see United States v.
Gary, 954 F.3d 194 (4th Cir. 2020).
