                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 08-2645
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JASON LOFTON,
                                              Appellant
                                     ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. No. 2-06-cr-00304-001)
                     District Judge: Honorable William H. Walls
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 14, 2010

              Before: RENDELL, FISHER and GARTH, Circuit Judges.

                              (Filed: September 15, 2010)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Jason Lofton appeals his conviction for possession of a firearm by a person

previously convicted of a felony. We will affirm.
                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       In January 2006, police officers in Jersey City, New Jersey, observed Lofton

engaged in what they perceived to be suspicious activity, chased him after he noticed that

he was under observation and ran away, and apprehended him shortly thereafter. While

in flight, Lofton had discarded what turned out to be a loaded shotgun with a sawed-off

barrel. Lofton was transported to a police station, where he signed a Miranda waiver and

admitted to having possessed the shotgun. In September 2007, Lofton was charged in a

superseding indictment with possession of a firearm by a person previously convicted of a

felony in violation of 18 U.S.C. § 922(g)(1) and possession of an unregistered firearm in

violation of 26 U.S.C. § 5861(d). In November 2007, a jury found Lofton guilty of both

offenses. The District Court thereafter sentenced him to concurrent prison terms of 120

months for the § 922(g)(1) conviction and 48 months for the § 5861(d) conviction.

Lofton has timely appealed the District Court’s judgment but challenges only his

§ 922(g)(1) conviction.1




       1
       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.

                                              2
                                             II.

       To prove that Lofton was guilty of violating § 922(g)(1), the government had to

establish the following elements: “(1) that [Lofton] had previously been convicted of a

crime punishable by imprisonment for a term exceeding one year; (2) that [Lofton]

knowingly possessed a firearm; and (3) that the firearm had passed in interstate

commerce.” United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000). Lofton does not

question the jury’s verdict with respect to the second two elements. Instead, his

assignment of error pertains only to the first element. Specifically, he points to the

government’s introduction into evidence at trial of not just one but three prior felony

convictions in an effort to meet its burden of proving that he “had previously been

convicted of a crime punishable by imprisonment for a term exceeding one year.” 2 In

Lofton’s view, the District Court should have used its authority under Federal Rule of

Evidence 403 to restrict the government’s proffer to one prior conviction to prove its

§ 922(g)(1) charge.3

       Lofton concedes that he did not object to the government’s proffer at trial and that,

as a consequence, our review is only for plain error. See, e.g., United States v. Leo, 941

F.2d 181, 193 (3d Cir. 1991). Accordingly, to prevail on appeal Lofton must show that:

       2
        The government asserts that it asked Lofton to stipulate to the existence of a prior
felony conviction but that Lofton refused.
       3
       Rule 403 authorizes a district court to exclude evidence whose probative value is
outweighed by, among other things, its potential to unfairly prejudice the defendant. Fed.
R. Evid. 403; United States v. Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010).

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(1) the District Court’s failure to sua sponte restrict the government’s proffer constituted

error; (2) the error was plain; and (3) the error affected his substantial rights. United

States v. Brown, 595 F.3d 498, 519 (3d Cir. 2010). Lofton carries the burden of making

this showing. United States v. Barbosa, 271 F.3d 438, 454 (3d Cir. 2001). If we

determine that he has done so, we may in our discretion grant him relief if we find that the

error he complains of “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Brown, 595 F.3d at 519-20 (quotation marks, other alteration and

citation omitted).

       Lofton spends the lion’s share of his energy focusing on the District Court’s failure

to conduct an on-the-record balancing test under Rule 403, the result of which, he

contends, should have been the exclusion of two of his prior convictions. As noted,

Lofton must demonstrate to us that the non-exclusion of two of his prior convictions

constituted plain error. “An error is plain if it is ‘clear’ or ‘obvious’ under current law.”

United States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009) (quoting United States v. Olano,

507 U.S. 725, 734 (1993)). Lofton has not referred us to a single relevant legal authority

definitively holding that the government’s introduction of more than one prior conviction

to prove the first element of a § 922(g)(1) charge constitutes error per se, and we know of

no such authority.4 As such, he has fallen far short of his burden of showing that the


       4
        Lofton places great weight on a non-precedential opinion of this Court where the
panel agreed with the defendant that, as a general matter, prosecutors need not “pile on”
prior convictions to meet their burden of proof. While Lofton is not precluded from

                                               4
District Court committed error, much less error that is plain, in admitting evidence of his

three prior convictions. See United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006) (no

plain error in the absence of a decision from either the Supreme Court or this Court on the

precise question presented); United States v. Clark, 237 F.3d 293, 298-99 (3d Cir. 2001)

(no plain error where the defendant could point to little case law decisively supporting his

position); cf. United States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007) (finding plain error

where, at the time of trial, this Court as well as other circuits had squarely decided the

issue in favor of the defendant).

       Even if we found plain error on this record, we would perceive no basis for

upsetting Lofton’s conviction. First, the District Court instructed the jurors on the

inferences they could permissibly draw from his three prior convictions, explaining to

them that those convictions could not be used to find Lofton guilty of the offenses

charged in this case. We ordinarily presume that jurors understand and follow

instructions, see United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010), and we see no



citing that case to us, see Fed. R. App. P. 32.1(a), we, of course, are not bound by it, see
Third Circuit Internal Operating Procedure 5.7; Berne Corp. v. Gov’t of the Virgin
Islands, 570 F.3d 130, 136 n.11 (3d Cir. 2009). Furthermore, even if that case were
mandatory authority in this circuit, it would not carry the day for Lofton, as it comes
nowhere near establishing a rule that the introduction of more than one prior felony
conviction is necessarily improper. For similar reasons, Lofton’s reliance on United
States v. Weiland, 420 F.3d 1062 (9th Cir. 2005), and United States v. Breitkreutz, 8 F.3d
688 (9th Cir. 1993), abrogated on other grounds by Old Chief v. United States, 519 U.S.
172 (1997), does him little good, as neither of those cases was decided on plain-error
review, both were resolved based on the precise factual scenarios presented, and neither
suggests that the per se rule Lofton urges in fact exists.

                                              5
reason to abandon that presumption here. And second, the evidence of Lofton’s guilt was

substantial, consisting of the prior convictions themselves, testimony from police officers

about Lofton’s having discarded an object while fleeing from the officers, and Lofton’s

own admission that that object was in fact the firearm he was charged with possessing.

See United States v. Irizarry, 341 F.3d 273, 298-99 (3d Cir. 2003) (declining to reverse on

plain-error grounds “because of the overwhelming evidence of [the defendant’s] guilt”).

       Under these circumstances, we find it highly unlikely that the introduction of

Lofton’s three prior convictions “affected the outcome of the . . . proceedings.” Olano,

507 U.S. at 734 (citations omitted). We would therefore decline to exercise our discretion

in Lofton’s favor even assuming the existence of plain error. See United States v.

Gordon, 290 F.3d 539, 545 (3d Cir. 2002) (declining to exercise discretion on plain-error

review because the error “did not prejudice the outcome nor did the error seriously affect

the fairness, integrity, or public reputation of the judicial system” (footnote omitted)); cf.

United States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008) (“While the Court of Appeals has

the authority to order correction when [the plain-error standard is] met, it is not required

to do so.” (emphasis added and quotation marks and citation omitted)).

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




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