                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          February 21, 2020

                                                                            Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-4163

 MICHAEL ALEXANDER BACON,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                               for the District of Utah
                          (D.C. No. 2:14-CR-00563-DN-1)
                       _________________________________

Veronica S. Rossman, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with her on the briefs), Office of the Federal Public Defender for the
District of Colorado, Denver, Colorado, appearing for Appellant.

Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Utah, Salt Lake City, Utah, appearing for Appellee.
                        _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       Defendant-Appellant Michael A. Bacon appeals the district court’s decision to

keep the supplement to his plea agreement filed under seal. Mr. Bacon contends that the

district court erred by failing to consider the common law right of access to court
documents and by failing to make case-specific findings regarding sealing on the record.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we vacate the district court’s

decision to keep Mr. Bacon’s plea supplement filed under seal and remand for further

proceedings.

                                              I

       In 2015, Mr. Bacon pleaded guilty to two counts of bank robbery and one count of

robbing a credit union, pursuant to a written plea agreement. ROA, Vol. I, at 20–23. At

his combined plea and sentencing hearing, the district court asked Mr. Bacon if he had

signed the documents relating to his plea agreement. Id. at 43. After responding that he

had not, the district court directed Mr. Bacon to sign the documents. Id. Mr. Bacon’s

counsel explained that Mr. Bacon was “concerned about the [plea] supplement” and

asked “for permission to file the plea agreement without the [plea] supplement. Id. at 43–

44. The district court responded, “We do file the supplement under seal in every case,

and we do that to protect the rare person who does cooperate.” Id. at 44.

       The district court was referring to a District of Utah local rule, which provides that

“[a]ll plea agreements shall be accompanied by a sealed document entitled ‘Plea

Supplement,’” filed “electronically . . . under seal.” DUCrimR 11-1. The plea

supplement describes the nature of the defendant’s cooperation with the government or

lack thereof; thus, because Mr. Bacon’s plea agreement did not contain a substantial

assistance clause or a cooperation agreement, ROA, Vol. I, at 20–27, his plea supplement

states that “there is no cooperation agreement between the United States and the

defendant.” Supp. ROA, Vol. I, at 4.

                                             2
        Mr. Bacon ultimately refused to sign his plea supplement, and his counsel signed

it on his behalf. ROA, Vol. I, at 45. Mr. Bacon explained to the court that “[w]hen you

go off to prison and you’ve got something sealed inside your paperwork and the yard gets

the paperwork and they see you’ve got a sealed document, they think you cooperated, and

they want to hurt you.” Id. at 44–45. The district court ordered the plea supplement filed

under seal over Mr. Bacon’s objection, stating, “We’re trying to get uniformity among

the districts so that everybody has a sealed supplement.” Id. at 45. Mr. Bacon’s plea

supplement appears on the docket as follows:




Id. at 6.

        Mr. Bacon was sentenced to 80 months’ imprisonment, followed by five years of

supervised release. Id. at 64. This five-year supervised release term exceeded the 36-

month statutory maximum for his offenses, an issue Mr. Bacon raised in his habeas

petition. See Bacon v. United States, No. 2:16-cv-00724-DN, 2018 WL 2709212, at *10

(D. Utah June 5, 2018). The partial grant of Mr. Bacon’s habeas petition resulted in a

resentencing hearing in 2018.

        At Mr. Bacon’s resentencing, the parties did not dispute that Mr. Bacon’s

supervised release term should be reduced to 36 months. See ROA, Vol. III, at 14–16.

Nonetheless, there was a dispute over the sealed plea supplement. In a pre-hearing filing,

defense counsel explained,

                                             3
              Mr. Bacon . . . did not want filed . . . a sealed pleading which
              states that there was no cooperation agreement involved in the
              case. Mr. Bacon claims that a sealed document shown in the
              docket raises questions and inferences at a correctional
              facility, that there has actually been cooperation. Mr. Bacon
              requests that the Court strike that particular document from
              the docket as he never signed it.

Supp. ROA, Vol. II, at 4–5.

       The government objected to Mr. Bacon’s request, arguing that it is the policy of

the District of Utah to file a sealed plea supplement in every criminal case and that the

policy is “actually for the defendant/prisoner’s benefit.” ROA, Vol. I, at 87. The

government asked the district court to keep Mr. Bacon’s plea supplement filed under seal

“as a matter of integrity to [the] local rules” and as “a matter of safety of cooperators.”

Id. at 88.

       The court heard argument from the parties on this issue at the resentencing

hearing. Defense counsel stated,

              Mr. Bacon has served time in the penitentiary . . . and it’s his
              experience that when you have a sealed pleading in your
              record, that becomes known to the people in the prison, and it
              causes him a security problem . . . I’m not sure all the inmates
              in the prison know that a sealed pleading is filed in every
              case, and . . . it doesn’t mean he’s cooperating. That’s why
              he doesn’t want that sealed pleading in this case, and he
              would like to have that withdrawn because it’s put him in
              danger.

Id., Vol. III, at 14–15. Mr. Bacon addressed the court, himself, regarding the sealed plea

supplement, stating, “If I don’t wan’t [sic] to place my life in jeopardy, I don’t see how

the federal government can force me to do that.” Id. at 18.

       The district court ordered the plea supplement filed under seal, ruling, in full:

                                              4
                 As to the issue of striking the sealed plea supplement, this has
                 been a matter of study nationally and by this Court, and we
                 continue to study it at a national level, and while there may be
                 changes, it is the practice, in many, if not most, districts to
                 file a plea supplement in every case. I recognize the problems
                 that you have brought up, and there have been issues of
                 inmate violence unfortunately. I attended a really good
                 presentation on this, where we had someone who had actually
                 interviewed prisoners about this, and there was some
                 compelling information, but so far no decision has been made
                 to change the policy or the rule and so I’m not going to strike
                 the sealed supplement.

Id. at 18–19.1




       1
         The district court was referring to a 2016 Federal Judicial Committee (FJC)
study concluding that there is “a substantial amount of harm, to both defendants and
witnesses, resulting from use of court documents to identify cooperators.” Fed.
Judicial Ctr., Survey of Harm to Cooperators: Final Report (2016), at 31, available at
https://www.fjc.gov/content/310414/survey-harm-cooperators-final-report. The FJC
found that “[t]he plea agreement or plea supplement was the document most
frequently used to identify a defendant/offender as a cooperator,” id. at 13, and that
“the presence of sealed documents and gaps in docket sequence numbers by
themselves are considered enough by other inmates to identify cooperators and put
them at risk of harm,” id. at 30–31. In light of this study, the Judicial Conference’s
Court Administration and Case Management Committee (CACM) provided interim
guidance, recommending that all district courts adopt a blanket approach where each
defendant has a sealed plea supplement regardless of whether the defendant
cooperated with the government. CACM, Interim Guidance for Cooperator
Information (2016) (CACM Memo), at 245, available at
https://www.uscourts.gov/sites/default/files/2016-09-criminal-agenda_book_0.pdf.
The Criminal Rules Committee decided not to implement CACM’s guidance. Hon.
Donald W. Molloy, Report of the Advisory Committee on the Criminal Rules (Dec. 8,
2017), at 119, available at https://www.uscourts.gov/sites/default/files/2018-01-
standing-agenda-book.pdf. As a result, many districts do not require sealed plea
supplements, leaving “a real risk that . . . measures to protect cooperators in one
court might result in criminal dockets that indicate cooperation . . . when compared to
those of another court.” CACM Memo at 247.
                                                5
       Mr. Bacon timely appealed, challenging the district court’s ruling keeping his plea

supplement filed under seal.

                                                II

       Generally, “[w]e review for an abuse of discretion the district court’s decisions

regarding whether to seal or unseal documents.”2 United States v. Pickard, 733 F.3d

1297, 1302 (10th Cir. 2013). The government contends that our review is for plain error

because Mr. Bacon relies on a legal theory not raised below—specifically, “the common

law right of public access.” Aple. Br. at 14.

       We agree with the government that our review is for plain error. This court has

“repeatedly declined to allow parties to assert for the first time on appeal legal theories

not raised before the district court, even when they fall under the same general rubric as

an argument presented to the district court.” United States v. A.B., 529 F.3d 1275, 1279

n.4 (10th Cir. 2008) (reviewing the defendant’s arguments under the plain error

standard); see also United States v. Buonocore, 416 F.3d 1124, 1128 (10th Cir. 2005)

(“[T]his court will not consider a theory on appeal not raised or ruled on below”); United

States v. Anderson, 374 F.3d 955, 958 (10th Cir. 2004) (“This is not a novel concept. We

have held . . . that a party may not raise on appeal specific theories he did not present



       2
         While Mr. Bacon labeled his motion at the district court as a motion to strike,
see Supp. ROA, Vol. II, at 4–5, there is no dispute that, in substance, he asked the
court to unseal the plea supplement. Compare Aplt. Rep. Br. at 2 (“[Mr. Bacon]
asked the court to unseal the plea supplement.”), with Aple. Br. at 9 (stating our
standard of review for “decisions regarding whether to seal or unseal documents”)
(internal quotation marks omitted). Further, when ruling on the motion, the district
court focused its analysis on whether the plea supplement should remain sealed.
                                                6
before the district judge.”). Mr. Bacon objected to the district court’s decision to keep his

plea supplement as a sealed document on the ground that the presence of a sealed plea

supplement in his court records would endanger him. See ROA, Vol. III, at 14–15, 18.

On appeal, however, he argues that “the district court erred in the manner in which it

decided the sealing question,” contending that the district court did not “consider the

presumptive [common law] right of access to judicial records” or conduct “the balancing

test that flows from” that presumption. Aplt. Br. at 20, 22, 26; see Aplt. Rep. Br. at 6

(acknowledging that Mr. Bacon “did not invoke the common law right of public access in

the district court”). Thus, he has forfeited this argument. Nonetheless, we can review

forfeited arguments for plain error where, like here, the appellant asks for plain error

review and puts forth arguments concerning its application. See United States v. Zander,

794 F.3d 1220, 1232 n.5 (10th Cir. 2015) (“We hold that Defendant adequately addressed

the issue of plain error review in his reply to the government’s brief, after arguing in his

opening brief that his objections below were sufficiently raised to be preserved for review

on appeal.”).

       “Plain error occurs when there is (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.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (quotation marks omitted).




                                               7
                                             III

                                              A

       Mr. Bacon relies on the “common-law public right of access to judicial records,”

Aplt. Br. at 23, to argue that the district court plainly “erred in the manner in which it

decided the sealing question” in two ways, id. at 20–21. First, he contends the district

court erred by “fail[ing] to consider the presumptive right of access to judicial records in

reaching its sealing conclusion.” Id. at 22. Next, he argues that the district court erred

because its “sealing conclusion is not based on the facts and circumstances of Mr.

Bacon’s case”—an analysis he asserts is “compelled by the common law presumption of

access.” Id. at 28–29.

       “Courts have long recognized a common-law right of access to judicial records.”

Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (quotation marks

omitted); see United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (“It is clearly

established that court documents are covered by a common law right of access.”); see

also United States v. Hickey, 767 F.2d 705, 706, 708 (10th Cir. 1985) (applying the

common law right of access to “the details of [a defendant’s] plea bargain”).3 Although

this common law “right is not absolute,” Colony Ins., 698 F.3d at 1241 (quotation marks


       3
         Mr. Bacon only asserts that he has a right to have his plea supplement
unsealed under the common law. He has disclaimed any reliance on a potential First
Amendment right for purposes of this appeal. See Aplt. Br. at 23 n.16. As such, we
have no occasion to address whether such a constitutional right exists. See United
States v. Pickard, 733 F.3d 1297, 1302 n.4 (10th Cir. 2013) (“Because we conclude
that Defendants can seek to have the DEA records unsealed under the common law,
we have no occasion here to address whether they also have a First Amendment right
to have the DEA file unsealed.”).
                                              8
omitted), there is a “strong presumption in favor of public access,” Mann v. Boatright,

477 F.3d 1140, 1149 (10th Cir. 2007). This strong presumption of openness can “be

overcome where countervailing interests heavily outweigh the public interests in access”

to the judicial record. Colony Ins., 698 F.3d at 1241 (internal quotation marks omitted);

see McVeigh, 119 F.3d at 811. “Therefore, the district court, in exercising its discretion

[to seal or unseal judicial records], must ‘weigh the interests of the public, which are

presumptively paramount, against those advanced by the parties.’” United States v.

Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (quoting Helm v. Kansas, 656 F.3d 1277,

1292 (10th Cir. 2011)).

       “Consistent with this presumption that judicial records should be open to the

public, the party seeking to keep records sealed bears the burden of justifying that

secrecy, even where, as here, the district court already previously determined that those

documents should be sealed.” Id. Therefore, the burden is on the government, as the

party opposing disclosure of the plea supplement, “to articulate a sufficiently significant

interest that will justify continuing to override the presumption of public access” to the

plea supplement at issue here. Id. at 1303. Applying those legal principles here, we

conclude the district court erred in the manner in which it considered Mr. Bacon’s request

to unseal the plea supplement in two ways.

       First, the district court “did not apply the presumption that judicial records should

be open to the public.” Id. (reversing the district court’s decision denying a motion to




                                              9
unseal).4 The district court kept Mr. Bacon’s plea supplement filed under seal because

“no decision ha[d] been made to change the [sealing] policy or the [local] rule.” ROA,

Vol. III, at 19. Therefore, rather than “requiring the United States to articulate a

significant government interest to justify keeping the [plea supplement] sealed,” Pickard,

733 F.3d at 1303, the district court relied on a local rule mandating sealed supplements in

every case. This ruling does not satisfy the common law standard. See id.; see also

United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016) (“The district court’s

ruling [denying the defendant’s request to unseal his plea agreement], based on a blanket

policy, does not satisfy either the constitutional or common law standards.”).

       The district court also erred by failing to support its sealing decision with case-

specific findings. We have held that a district court, in deciding whether specific

documents should be sealed, “must consider the relevant facts and circumstances of the

particular case and weigh the relative interests of the parties.” Hickey, 767 F.2d at 708

(emphasis added) (addressing whether the court erred in “foreclosing access to the details

of Mr. Hickey’s plea bargain”); see Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599

(1978) (“[T]he decision as to access is one best left to the sound discretion of the trial


       4
         There is no dispute that Mr. Bacon’s plea supplement is a judicial record.
Compare Aplt. Br. at 24 (“The document at issue here – the supplement to Mr.
Bacon’s plea agreement – is a judicial record.”), with Aple. Br. at 25 (noting that
DUCrimR 11-1, which requires sealing of plea supplements, “governs who has
access to the records of Utah’s courts”) (emphasis added). As noted, this court held
that the common law right of access applies to “the details of [a defendant’s] plea
bargain” in Hickey, 767 F.2d at 706, 708. See also United States v. DeJournett, 817
F.3d 479, 485 (6th Cir. 2016) (“plea agreements are the quintessential judicial
record”); In re Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008) (plea
agreement’s cooperation addendum is a judicial record).
                                             10
court, a discretion to be exercised in light of the relevant facts and circumstances of the

particular case.”) (emphasis added); see also DeJournett, 817 F.3d at 485 (“remand[ing]

the case so that the district court may state its case-specific [sealing] findings on the

record”).5 Here, the district court did not weigh the interests of the parties or provide any

case-specific explanation for its decision to keep Mr. Bacon’s plea supplement under

seal. Instead, it relied on general information that was not on the record and the District

of Utah’s local rules. See ROA, Vol. III, at 18–19 (discussing “some compelling

information” from a “presentation” and denying Mr. Bacon’s request to unseal the plea

supplement because “no decision ha[d] been made to change the [sealing] policy or the

[local] rule”). The district court’s generalized sealing analysis does not satisfy the

common law standard or provide us with an adequate foundation for appellate review.6

       The government contends, however, that we can “adjust [the] ‘common law

doctrine[],’” Aple. Br. at 44, (quoting Williams v. Trammell, 782 F.3d 1184, 1195 (10th

Cir. 2015)), so that the “case-specific analysis requirement [does not] apply to” plea



       5
        In an unpublished case, United States v. Apperson, 642 F. App’x 892, 900
(10th Cir. 2016), we stated, “[L]est the common-law presumption of access be
rendered a dead letter . . . courts cannot justify denying disclosure by endorsing . . .
generalized governmental interests. They must analyze the government’s interests in
the context of the specific case . . . and explicitly undergird their conclusions with
fact-specific analysis.” (vacating the district court’s sealing order and remanding for
further proceedings because “[a]bsent a particularized analysis . . . a district court has
no sound legal basis for ruling on the sealing question”).
       6
        For this reason, we cannot address Mr. Bacon’s alternative argument that the
government did not satisfy its burden of proof. See Aplt. Br. at 31 n.19 (“If this
Court determines that the district court erred as a matter of law in the manner in
which it decided the sealing question, it need not reach this argument . . . .”).
                                              11
supplements, id. at 46, despite admitting that “some (or even all) past common law public

access decisions imposed a case-specific analysis requirement,” id. at 44. We reject this

argument. “[W]e must follow Supreme Court and Tenth Circuit precedent,” United

States v. Courtney, 816 F.3d 681, 686 (10th Cir. 2016), and our caselaw has not provided

for such an exception. See Hickey, 767 F.2d at 706, 708 (holding that the “common law

right . . . to inspect and copy judicial records” applies to “the details of [a defendant’s]

plea bargain”).

       We also reject the government’s assertion that the district court did not err because

the District of Utah’s local rule “supplants any conflicting common law right of public

access.” Aple. Br. at 21. According to the government, “the common law can be

supplanted by statute or rule” when “the statute or rule ‘speak[s] directly to the question

addressed by the common law.’” Id. at 23 (emphasis added) (quoting United States v.

Burkholder, 816 F.3d 607, 618 (10th Cir. 2016)). Reliance on Burkholder is misplaced.

Burkholder held that “to abrogate a common-law principle, the statute must speak

directly to the question addressed by the common law.” 816 F.3d at 618 (emphasis

added) (internal quotation marks omitted). Burkholder did not say that a rule,

promulgated not by Congress but by a district court, could abrogate the common law.

And the government admits that “Congress has not passed a law specifically addressing

whether the public has a right of access to cooperation agreements.” Aple. Br. at 24.

Accordingly, the District of Utah’s local rule did not abrogate the common law right of

access to judicial records.



                                              12
                                              B

       We next consider whether the district court’s errors were plain. An error is plain

“when it is contrary to well-settled law.” United States v. Whitney, 229 F.3d 1296, 1309

(10th Cir. 2000). “For us to characterize a proposition of law as well-settled, we

normally require precedent directly [o]n point from the Supreme Court or our circuit or a

consensus in the other circuits.” United States v. Smith, 815 F.3d 671, 675 (10th Cir.

2016). We agree with Mr. Bacon that the district court’s errors in this case were plain.

       This court specifically addressed the issue of a district court’s failure to consider

the presumption of access when sealing a judicial record in Pickard. In Pickard, we

stated that “the district court erred in the manner” in which it decided the sealing question

because it “did not apply the presumption that judicial records should be open to the

public.” 733 F.3d at 1303. Pickard made clear that a district court must consider the

presumption of openness in deciding whether to seal a judicial record “even where, as

here, the district court already previously determined that [the] documents should be

sealed.” Id. at 1302 (noting that “the party seeking to keep records sealed bears the

burden of justifying that secrecy”).

       Pickard also made clear that the district court, “in exercising its discretion [to seal

a judicial record], must ‘weigh the interests of the public, which are presumptively

paramount, against those advanced by the parties.’” Id. (emphasis added) (quoting Helm,

656 F.3d at 1292); see also Nixon, 435 U.S. at 599 (discretion to seal is “to be exercised

in light of the relevant facts and circumstances of the particular case”) (emphasis added).

The district court plainly erred in keeping Mr. Bacon’s plea supplement under seal by

                                             13
failing to consider the presumptive right of access and by failing to make case-specific

findings on the record.

       The government argues, however, that Mr. Bacon’s claim “fails for lack of

obvious error” because Mr. Bacon “points to no Supreme Court or published Tenth

Circuit decision that holds that a district cannot adopt a rule that automatically seals a

particular kind of categorically sensitive information.” Aple. Br. at 21. This argument

misses the point. Mr. Bacon does not challenge “the facial validity of the local rule or the

District of Utah’s authority to adopt it.” Aplt. Rep. Br. at 4. Rather, Mr. Bacon

challenges the district court’s application of the local rule in this case as inconsistent with

the legal standards for sealing judicial documents. See id.; see Aplt. Br. at 26 (relying on

United States v. Doe, 870 F.3d 991, 1002 (9th Cir. 2017), which held that “nothing in our

precedent prevents district courts from” adopting the practice of requiring a sealed plea

supplement in every case “as long as district courts decide motions to seal or redact on a

case-by-case basis”).7




       7
         In a similar vein, the government contends that the district court could adopt
DUCrimR 11-1 because the “government has a compelling interest in protecting
cooperators,” which it argues is “sufficient to overcome the presumption of openness and
satisfy the burden of proof.” Aple. Br. at 27. But again, the District of Utah’s authority
to adopt a local rule is not at issue in this case. To the extent the government is
attempting to satisfy its burden of proof on appeal, it cannot do so. The “analysis of the
question of limiting access is necessarily fact-bound,” Hickey, 767 F.2d at 708, and “an
appellate court is not a fact-finding body,” United States v. Castellanos-Barba, 648 F.3d
1130, 1133 (10th Cir. 2011). See Apperson, 642 F. App’x at 902 (“we decline to
undertake in the first instance a sealing analysis to resolve the question”).

                                              14
       More specifically, the government contends that Mr. Bacon has not shown

obvious error for “his burden of proof and case-specific-analysis arguments.” Aple. Br.

at 17–18. The government attempts to distinguish both Nixon and Pickard, arguing that

“Nixon dealt with a district court’s decision to prohibit public access to the Watergate

tapes . . . while Pickard dealt with a district court’s decision to seal a confidential

informant’s file pursuant to its ‘inherent supervisory authority over its own files.’” Id. at

18 (quoting Pickard, 733 F.3d at 1300). According to the government, Mr. Bacon’s case

is different because he “is not challenging a district court’s decision to seal information

that was based on a case-specific reason or derived from the court’s common law

authority. Instead, he’s challenging a district court’s ability to adopt (and enforce) a

categorical rule that automatically seals a certain kind of information.” Id. The

government’s argument again misses the point. Mr. Bacon is challenging the district

court’s decision to keep a specific document under seal, not its authority to enact a local

rule. Moreover, the district court’s failure to articulate case-specific reasons for its

sealing decision is, in part, why Mr. Bacon seeks remand.

       The government also points out that “even in the absence of a statute or rule,

courts themselves have created their own sealing or redaction regimes for particular kinds

of sensitive information.” Aple. Br. at 19 (noting, for example, that a party seeking

access to records of grand jury proceedings carries the burden of establishing the need for

disclosure). While that may be true for certain kinds of documents, we have no such

regime for plea agreements. To the contrary, we have held that the common law right of

access applies to “the details of [a defendant’s] plea bargain.” Hickey, 767 F.2d at 706,

                                              15
708. The government’s arguments regarding the plainness of the district court’s errors

are unavailing.

                                              C

       The third prong of plain error concerns whether the error affects the defendant’s

“substantial rights.” United States v. Hasan, 526 F.3d 653, 664 (10th Cir. 2008). In this

analysis, “we ask only whether there is ‘a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different.’” Id. (quoting United

States v. Andrews, 447 F.3d 806, 811 (10th Cir. 2006)). To satisfy this burden, Mr.

Bacon “must show a reasonable probability sufficient to undermine confidence in the

outcome at [his] [re]sentencing.” United States v. Yurek, 925 F.3d 423, 446 (10th Cir.

2019). “Confidence in the outcome can be undermined even if [Mr. Bacon’s] showing

would not satisfy the preponderance-of-the-evidence standard.” Id.

       Mr. Bacon has satisfied the third prong of plain error. A presumption of openness

must be overcome for a judicial record to remain under seal. See Pickard, 733 F.3d at

1302. The record demonstrates that the district court did not consider this presumption of

access to judicial records. As such, there is a reasonable probability that, but for the

district court’s error, Mr. Bacon’s plea supplement would not have been filed under seal.

Moreover, the district court did not conduct any case-specific balancing to determine

whether the government’s interest “heavily outweigh[ed]” the public interest in access.

Id. (quotation marks omitted). Had the district court considered the government’s interest

in the context of the specific case (including the undisputed evidence that Mr. Bacon was

endangered by the sealed plea supplement) rather than relying solely on the local rule,

                                             16
there is a reasonable probability that Mr. Bacon’s plea supplement would not have been

filed under seal.

                                               D

       To satisfy the fourth prong of plain error, Mr. Bacon must show that the district

court’s error “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Bustamante-Conchas, 850 F.3d 1130, 1144 (10th Cir.

2017). Mr. Bacon has made this showing.

       We have held that the common law right of access to judicial records “is an

important aspect of the overriding concern with preserving the integrity of the law

enforcement and judicial processes.” Hickey, 767 F.2d at 708 (citing United States v.

Hubbard, 650 F.2d 293, 315 (D.C. Cir. 1980)). The “common law right is not some

arcane relic of ancient English law. To the contrary, the right is fundamental to the

democratic state.” Hubbard, 650 F.2d at 315 n.79 (quoting United States v. Mitchell, 551

F.2d 1252, 1258 (D.C. Cir. 1976)); see Hon. T. S. Ellis, III, Sealing, Judicial

Transparency and Judicial Independence, 53 VILL. L. REV. 939, 940 (2008) (“Secret

proceedings, including unwarranted or excessive sealing of court records, engender

suspicion, mistrust and a lack of confidence in the judicial process . . . .”). We conclude

that Mr. Bacon has satisfied the fourth prong of plain error.

                                              IV

       For the foregoing reasons, we VACATE the district court’s decision to keep Mr.

Bacon’s plea supplement filed under seal and REMAND for further proceedings.



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