            Case: 18-10423   Date Filed: 04/09/2020     Page: 1 of 18



                                                            [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                         No. 18-10423; 18-13448
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:17-cr-00036-SLB-GMB-1



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

versus

VIRGIL DEIA NICKENS,

                                                 Defendant - Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Middle District of Alabama
                       ________________________

                               (April 9, 2020)

Before ED CARNES, Chief Judge, WILSON and HULL, Circuit Judges.

PER CURIAM:
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       Virgil Nickens appeals his conviction and sentence for possession of a

firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g),

asserting four errors. He contends that: (1) the United States did not comply with

its discovery obligations under Brady v. Maryland; (2) the district court incorrectly

applied a sentencing enhancement that increased his offense level by two points;

(3) the district court erred in denying his posttrial motion to unseal; and (4) his

conviction must be vacated in light of the Supreme Court’s ruling in Rehaif v.

United States, 139 S. Ct. 2191 (2019). We reject all of Nickens’ arguments and

affirm his conviction and sentence.

                                                  I.

       A jury convicted Virgil Nickens of possession of a firearm and ammunition

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The conviction was

based on Nickens’ sale of a gun to Mario Cobb, a confidential informant. Cobb

testified at trial that Nickens sold him the gun and ammunition.

       At several points before trial, the government, upon Nickens’ request,

disclosed Brady1 information about Cobb to Nickens. First, on August 2, 2017, the

government notified Nickens that it had a pending, unindicted case against Cobb




       1
         Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution”).
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arising from a September 2014 search of Cobb’s residence that uncovered drugs

and a gun. The government also disclosed Cobb’s record of prior convictions, his

cooperation history, and information about his current and past cooperation

agreements.

      Four days before trial, Nickens filed a motion to compel discovery, seeking

more information about the pending, unindicted federal charges Cobb was facing.

Specifically, Nickens sought information about the “drug type and quantity” that

Cobb had allegedly possessed, arguing that the information was crucial to his

ability to fully cross-examine Cobb because the type and quantity of drugs Cobb

allegedly possessed could mean that he faced a lengthy mandatory minimum

sentence. The district court granted Nickens’ motion and ordered the government

to disclose the drug type and quantity and the amount of prison time Cobb could be

facing. Two days before trial, the government told Nickens that “there was not

much drugs found [sic]” in Cobb’s possession, and the “only specific amount” the

government could find reference to was “one ounce of marijuana.” But the

government said it could not tell Nickens the exact drug type and quantity because

no toxicology report had ever been completed.

      The next day (the day before trial), the government sent Nickens a copy of

the search warrant return from the 2014 search of Cobb’s home. The return

indicated that the search uncovered a significant quantity of drugs and drug


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paraphernalia, contradicting the government’s previous statement about the amount

of drugs.2 Based on that information, Nickens moved to dismiss the indictment,

alleging that the government had violated Brady. In the alternative, he sought a

continuance. In response, the government asked the district court to conduct an in

camera inspection of its 91-page investigative file on Cobb to determine whether

complying with Brady would require it to disclose the entire file to Nickens.

       The district court granted the government’s request and inspected the file

during a closed hearing at which only the government was present. After the

closed portion of the hearing, with Nickens and his counsel present, the court

acknowledged some discrepancies between the government’s earlier

representations about the potential charges Cobb faced and what the investigative

file revealed. The court nonetheless denied Nickens’ motion to dismiss or for a

continuance, explaining that Nickens would still be able to fully cross-examine

Cobb on the potential benefits he could gain from cooperation. The court did not

find that the government needed to reveal its entire file to comply with Brady.




       2
         The search warrant return listed, among other things, a bank bag containing an
unspecified amount of MDMA and marijuana, a bag of suspected MDMA, a suspected MDMA
capsule, an unspecified amount of marijuana, another container containing marijuana, suspected
crack, a digital scale, and two-and-a-half glass marijuana pipes.


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       Trial began the next day, and Cobb testified that he had bought a gun and

ammunition from Nickens.3 Nickens’ attorney cross-examined Cobb extensively.

In response to the attorney’s questioning, Cobb admitted that he: had been a

confidential informant since around 2006, and had acted as an informant for the

Montgomery Police Department, the DEA, and the ATF; had started working with

the MPD and DEA because he was facing criminal charges and a potentially

lengthy prison sentence; had two prior felony convictions when he started working

with the MPD and DEA; avoided charges in 2007 because of his work as an

informant; began working for the ATF as an informant in 2014 because he was

caught selling drugs; had been charged in a seven-count indictment in 2016 in

Autauga County for drug charges stemming from his 2014 drug-selling activity;

had been facing between 10 and 99 years in prison because of the 2016 indictment,

but only served several months because he agreed to work as an informant; was

facing serious federal charges stemming from a 2014 search of his home that

uncovered drugs — including marijuana, MDMA, and hydrocodone — and a gun,

and the threat of those charges spurred him to become an informant again; and had

still not been arrested or gone to court on the federal charges. Cobb acknowledged


       3
         Although Cobb provided the only direct evidence that Nickens had sold him the gun,
the government also presented evidence that Nickens owned the Ford Explorer an ATF agent had
seen Nickens get into to buy the gun, that the phone number Cobb used to contact the person
Cobb said was Nickens was associated with Nickens’ Facebook account, and that the firearm
Cobb purchased was “very similar” to a common firearm pictured on Nickens’s Facebook page.

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that he had done “a lot of work for the ATF,” and that he did so hoping he would

not be indicted on federal drug and gun charges. He admitted to being paid for his

work as an informant, although he could not recall the amount of money he

received. He also testified that he would get credit for his work as an informant

only if he bought a firearm and identified the individual who had sold him a gun.

      Nickens presented no evidence, and the jury convicted him of the sole

charge of possession of a firearm and ammunition by a convicted felon.

      In preparation for sentencing, the probation office prepared a Presentence

Investigation Report. As relevant on appeal, the PSR recommended a two-level

enhancement to Nickens’ base offense level under U.S.S.G. § 2K2.1(b)(4)(A)

because the firearm Nickens possessed was stolen. The recommendation was

based on the following statements in the PSR:

      [T]he serial number of the firearm revealed the handgun was purchased
      . . . by Regina Ryals on November 9, 2010. An ATF investigation
      revealed that Regina Ryals first noticed her firearm was missing on
      May 30, 2016, from her purse. Regina Ryals attempted to file a report
      with Prattville Police Department, Prattville, Alabama, but was
      informed her address was in the city limits of Montgomery, Alabama.
      Regina Ryals then attempted to file a police report with Montgomery
      Police Department, Montgomery, Alabama, but was told she needed to
      show proof of ownership. Regina Ryals obtained a purchase
      receipt . . . , but was told that would not be enough to prove ownership.

      Nickens objected to application of the enhancement, arguing that there was

no credible evidence the firearm had been stolen. He pointed to Ryals’ admission

that she had never reported the gun stolen and to the absence of any police report

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indicating that it had been stolen. Nickens argued that Ryals told the ATF agents

that she had taken the gun out of her purse, placed it on her truck, and “may have

driven off with the gun still on the back bumper of her truck.”4 In part because

Ryals was uncertain what had happened to her gun, Nickens argued that there was

“no evidence of who possessed this gun after Ms. Ryals and no evidence of how

this gun came to be in Mr. Nickens’ possession.”

       The district court overruled Nickens’ objection and applied the two-level

enhancement. Relying heavily on an Eighth Circuit case that held the

enhancement applied to a gun that had been mislaid when its owner left it in a bar

bathroom, the court said:

              Well, I don’t see any difference in that and this. This gun was
       in a case. If it fell off the back of a truck — I mean it’s the same
       thing. Whoever found it, it would — it was clearly not — it was a
       gun, in a case even. I mean, it was not just thrown away in a garbage
       can.
The court adopted the factual findings and guidelines calculation in the PSR, and

sentenced Nickens to 51 months imprisonment followed by 3 years of supervised

release. Nickens appeals.




       4
        Nickens was apparently relying on information from an ATF report of an interview with
Ryals. Nickens’ sentencing memorandum references the report as an attachment, but the
attachment is not in the record.
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                                         III.

      Nickens first contends that he is entitled to a new trial because the

government violated Brady by failing to disclose the “type, quantity, and status of

the drugs involved” in Cobbs’ unindicted federal offenses. Nickens has not

established a Brady violation.

      We review an alleged Brady violation de novo. United States v. Brester,

786 F.3d 1335, 1338 (11th Cir. 2015). To establish a Brady violation, Nickens

must show that the government withheld favorable information and that he was

prejudiced as a result. Id. at 1339; Strickler v. Greene, 527 U.S. 263, 281–82

(1999). Although Brady requires the government to provide the defense with

impeachment information, when that material is not disclosed, the defendant

cannot establish prejudice if he “fully explored the extent of” the impeachment

evidence. Bueno-Sierra, 99 F.3d at 380. Nor can a defendant establish prejudice if

the impeachment evidence is “cumulative of other impeachment evidence.”

Brester, 786 F.3d at 1339.

      Nickens’ Brady claim fails because he cannot show that he was prejudiced

by the government’s failure to disclose the type, quantity, and status of the drugs

seized from Cobb’s home in 2014. That information was cumulative of

impeachment evidence Nickens already had. Nickens thoroughly and exhaustively

impeached Cobb on cross-examination. Cobb discussed the benefits he received in


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exchange for testifying against Nickens. He acknowledged his lengthy history of

informing and admitted that he was motivated to inform only when facing his own

charges or for his own financial gain. He confirmed the significant sentencing

benefits he had received in exchange for his past work as an informant. And he

admitted that the threat of serious charges stemming from the 2014 search of his

home had motivated Cobb to start informing again. Any additional impeachment

value Nickens would have gained from being able to state the specific drug

quantities and the precise amount of time Cobb was facing is duplicative. Nickens

cannot show that he was prejudiced, so his Brady argument fails. See Bueno-

Sierra, 99 F.3d at 375; Brester, 786 F.3d at 1339.

                                         IV.

      Nickens also contends that the district court erred in enhancing his offense

level under U.S.S.G. § 2K2.1(b)(4)(A) based on its finding that the firearm he

possessed was stolen. He argues that the record shows only that Ryals misplaced

the gun, not that it was stolen. The government argues that it has shown that the

gun was stolen because it proved that: (1) Ryals purchased the gun, (2) Ryals went

to two different police departments in an attempt to report the gun stolen; and

(3) the gun was never turned in to law enforcement. We agree.

      We review the district court’s factual findings for clear error and its

“application of the Guidelines to the facts with ‘due deference.’” United States v.


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White, 335 F.3d 1314, 1317 (11th Cir. 2003). The “‘due deference’ standard is,

itself, tantamount to clear error review.” United States v. Rothenberg, 610 F.3d

621, 624 (11th Cir. 2010). A finding is clearly erroneous if we are “left with a

definite and firm conviction that a mistake has been committed.” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The government bears

the burden of establishing by a preponderance of the evidence the facts necessary

to support a sentencing enhancement. United States v. Smith, 480 F.3d 1277,

1280–81 (11th Cir. 2017).

      Section 2K2.1(b)(4)(A) directs courts to enhance a defendant’s base offense

level by two levels if the firearm involved in the offense was stolen. The guideline

does not define stolen, and we have not addressed in a published opinion the test

for determining whether a firearm has been “stolen” under § 2K2.1(b)(4)(A). But

we need not decide that issue today because, even accepting the test Nickens points

to, the district court did not clearly err in concluding that the firearm was stolen.

      The only legal definition of “stolen” Nickens points to is from United States

v. Bates, 584 F.3d 1105 (8th Cir. 2009). In Bates, the Eighth Circuit considered a

defendant’s challenge to the application of § 2K2.1(b)(4)(A). The gun’s owner

claimed that he had left his gun in the bathroom of a bar. Bates, 584 F.3d at 1109.

He testified that he had “never authorized anyone to take [it], never sold it, and

never gave it away as a gift.” Id. Although there was no evidence about “exactly


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when, where, or under what circumstances the gun went missing,” the Eighth

Circuit nonetheless affirmed the district court’s conclusion that the gun was stolen.

Id. at 1109–10.

      In doing so, the court applied the Supreme Court’s definition of the term

“stolen” from the National Motor Vehicle Theft Act, reasoning that the context of

both the NMVTA and § 2K2.1(b)(4)(A) “require[d] a broad interpretation of

‘stolen.’” Id. at 1109. Instead of adopting the more narrow common-law

definition for larceny, the Eighth Circuit held that “stolen” must include “all

felonious or wrongful takings with the intent to deprive the owner of the rights and

benefits of ownership.” Id.

      Under that broader definition of theft, keeping “lost or mislaid property can

be a wrongful taking when there are readily available” ways to track down the

property’s “rightful owner.” Id. at 1110. There had been a “readily ascertainable

means of ascertaining the owner of the gun” in Bates — an unaltered, traceable

serial number — but it had nonetheless ended up in the defendant’s hands, so the

Eight Circuit held that the gun had been “felonious[ly] or wrongful[ly] tak[en] with

the intent to deprive the owner of the rights and benefits of ownership.” Id.

      Applying Bates’ definition, the district court did not clearly err in finding

that the firearm Nickens sold to Cobb was stolen. The district court found the




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following facts about the firearm.5 A National Crime Information Center report

identified Regina Ryals as the owner but did not indicate that the gun had been

reported stolen or turned in to law enforcement. Ryals first realized the gun was

missing on May 30, 2016, when she noticed that it was not in her purse. She likely

lost the firearm when she set it, in its case, on the back of her truck and drove

away. She tried to report the gun stolen with both the Prattville and Montgomery

Police Departments, but neither police department would accept her report.

       Considering all these facts, the district court did not clearly err in concluding

that the government had proven it was more likely than not that the firearm had

been taken “with the intent to deprive the owner of the rights and benefits of

ownership.” Id. at 1109. The evidence indicated that the gun was in a case when

Ryals lost it, so, as the district court noted, “it was not just thrown away in a

garbage can.” The serial number on the gun was linked to Ryals, who had

attempted to report it stolen. And the NCIC report did not indicate that the gun had



       5
          Nickens acknowledges that “the district court apparently accepted [his] characterization
of the facts,” but asserts in a footnote that if the district court did not accept his facts, it had
“imposed a sentence enhancement without requiring the government to present evidence to
support a disputed, underlying fact,” and we should vacate and remand.

         Our review of the record confirms that the district court accepted Nickens’ version of the
facts, including that Ryals placed the gun in its case on the back of her truck and drove off. But
even if it did not accept his facts, Nickens likely forfeited any challenge he otherwise had to the
district court’s factual findings by raising it in such a cursory manner. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 6778, 681 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim when he either makes only passing references to it or raises it in a perfunctory
manner without supporting arguments and authority.”).
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been turned in to any law enforcement agency. These facts indicate that, as in

Bates, there was a “readily available means of ascertaining” the gun’s owner, so

“whoever gained possession of the gun knew that it was lost or mislaid, and took

no steps to return it.” Id. at 1110. The district court did not clearly err in applying

§ 2K2.1(b)(4) to enhance Nickens’ guidelines range.

                                                V.

       After filing his notice of appeal raising the arguments we have discussed,

Nickens sought in the district court a transcript of the court’s in camera inspection

of the government’s investigative file of Cobb. The district court denied his

request, citing the government’s open and ongoing investigation of Cobb. Nickens

appeals that ruling, invoking his due process right to appeal and the public’s First

Amendment and common law rights to access of trial proceedings.

       We easily reject Nickens’ right-to-appeal argument because the cases he

cites don’t support his argument. 6 We also reject his First Amendment and

common law arguments. The district court did not abuse its discretion by finding

that the government demonstrated good cause for keeping the file under seal.




       6
          Nickens points to decisions holding that an indigent defendant may not be denied trial
transcripts on appeal simply because of an inability to pay for them, see Hardy v. United States,
375 U.S. 277 (1964); Griffin v. Illinois, 351 U.S. 12 (1956), but he identifies no case addressing
a situation similar to the one here. The authorities Nickens cite do not stretch as far as he wants
them to.
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      The media and general public have a “firmly established” First Amendment

right of access to criminal proceedings. Chi. Tribune Co. v. Bridgestone/Firestone,

Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). When the First Amendment right-of-

access applies, a court may exclude the public from a criminal proceeding only if it

is “shown that the [exclusion] is necessitated by a compelling governmental

interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co. v.

Superior Court of Cty. of Norfolk, 457 U.S. 596, 603 (1982). The common law

also provides a right of access to judicial proceedings. See Romero v. Drummond

Co., Inc., 480 F.3d 1234, 1245 (11th Cir. 2007). The common law right of access

“includes the right to inspect and copy public records and documents.” Chi.

Tribune Co., 263 F.3d at 1311.

      Discovery materials, however, do not fall within the scope of either the First

Amendment or the common law right of access. Chi. Tribune Co., 263 F.3d at

1310, 1312; Romero, 480 F.3d at 1245. Instead, “[p]ublic disclosure of discovery

material is subject to the discretion of the trial court and the federal rules that

circumscribe that discretion.” Chi. Tribune Co., 263 F.3d at 1310. So a party

seeking to shield discovery material from disclosure to a third party need only

show good cause for the sealing. Id.; cf. Fed. R. Crim. P. 16(d)(1) (“At any time

the court may, for good cause, deny, restrict, or defer discovery or inspection, or

grant other appropriate relief.”).


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      The proceeding for which Nickens seeks a transcript — the district court’s in

camera inspection of the government’s investigative file to determine if it

contained Brady material — is a quintessential discovery proceeding. The

government requested the hearing so that the district court could determine the

extent of its discovery obligations under Brady. The Supreme Court has endorsed

this sort of proceeding to resolve Brady-related discovery issues. See United

States v. Agurs, 427 U.S. 97, 106 (1976) (“Although there is, of course, no duty to

provide defense counsel with unlimited discovery of everything known by the

prosecutor, if the subject matter of such a request is material, or indeed if a

substantial basis for claiming materiality exists, it is reasonable to require the

prosecutor to respond either by furnishing the information or by submitting the

problem to the trial judge.”) (emphasis added).

      The sealing of the transcript was therefore appropriate so long as the

government demonstrated good cause for it. See Chi. Tribune Co., 263 F.3d at

1310; Romero, 480 F.3d at 1245. The district court found that sealing the

transcript balanced the government’s interest in maintaining the confidentiality of

its investigative report with Nickens’ need for Brady information. It “balance[d]

the asserted right of access against the other party’s interest in keeping the

information confidential,” which is sufficient to show good cause. Chi. Tribune




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Co., 263 F.3d at 1309. The district court did not abuse its discretion in denying

Nickens’ motion to unseal.7

                                             VI.

       Nickens filed a supplemental brief arguing that his conviction must be

vacated in light of Rehaif v. United States, 139 S. Ct. 2191 (2019), because his

indictment did not charge, the jury was not instructed, and the United States did

not prove beyond a reasonable doubt that Nickens knew he was a convicted felon

at the time he possessed the firearm. But Nickens cannot show that the trial court’s

error affected his substantial rights, so he is not entitled to relief.

       In Rehaif, the Supreme Court held that a defendant’s knowledge of his status

as a felon is an element of the crime of possession of a firearm by a convicted

felon. 139 S. Ct. at 2200 (“[I]n a prosecution under 18 U.S.C. § 922(g) and

§ 924(a)(2), the Government must prove both that the defendant knew he

possessed a firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.”).




       7
         Besides, Nickens has likely forfeited any argument that the government did not show
good cause because he made only constitutional and common-law right-of-access arguments on
appeal. See AT&T Broadband v. Tech. Commc’ns., Inc., 381 F.3d 1309, 1320 n.14 (11th Cir.
2004) (“Issues not raised on appeal are considered abandoned.”).


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       Nickens makes his Rehaif argument for the first time on appeal, so we

review only for plain error.8 See Reed, 941 F.3d at 1020. To prevail on plain error

review, Nickens must prove that an error occurred that was both plain and that

affected his substantial rights. See United States v. Olano, 507 U.S. 725, 732

(1993). If he makes this showing, we may, in our discretion, correct the error if it

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (alteration adopted) (citation and quotation marks omitted). We

may consider the entire record when determining whether an error affected

Nickens’ substantial rights. See Reed, 941 F.3d at 1021.

       At trial, Nickens stipulated to the fact that he was a convicted felon. At

sentencing, Nickens did not object to (and therefore admitted) the portions of his

PSR that indicated he had two felony convictions, one for Unlawful Distribution of



       8
          Nickens argues that our review is de novo even though he did not make this argument
below because his Rehaif argument raises a jurisdictional challenge to the indictment. Nickens
is wrong. Jurisdiction concerns “the courts’ statutory or constitutional power to adjudicate the
case.” United States v. Cotton, 535 U.S. 625, 630 (2002). Congress empowered district courts
to try “all offenses against the laws of the United States,” 18 U.S.C. § 3231, so “all that matter[s]
for purposes of the district court’s subject-matter jurisdiction [is] that the United States file[] an
indictment charging [the defendant] with violating ‘laws of the United States,’ ” United States v.
Brown, 752 F.3d 1344, 1348 (11th Cir. 2014) (alteration adopted) (citation and quotation marks
omitted). The government did that in this case, and even Nickens does not argue otherwise.

        Nickens also argues that our review is de novo because he challenged the sufficiency of
the evidence at the close of the government’s case. But that challenge did not preserve for de
novo review an entirely separate issue that he did not raise. See United States v. Baston, 818
F.3d 651, 664 (11th Cir. 2016) (“When a defendant raises specific challenges to the sufficiency
of the evidence in the district court, but not the specific challenge he tries to raise on appeal, we
review his argument for plain error.”).
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a Controlled Substance, and one for Receiving Stolen Property. And Nickens’

PSR indicated that he had served almost three years in prison on the Unlawful

Distribution conviction. Each of those facts — and certainly those facts combined

— are enough for a reasonable jury to “have inferred that [Nickens] knew he was a

felon.” Reed, 941 F.3d at 1022. Because Nickens cannot show a reasonable

probability that, but for the Rehaif error, the outcome of his trial would have been

different, he cannot show that the error affected his substantial rights. See Molina-

Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); Reed, 941 F.3d at 1022.

Nickens’ argument fails under plain error review.

      AFFIRMED.




                                         18
