United States v. Nasir (3rd Cir. November 2021)

The Federal Docket

December 13, 2021

Following a jury trial, Malik Nasir was convicted of maintaining a drug-involved premises under 21 U.S.C. § 856(a)(1); possession of marijuana with intent to distribute under 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); and being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court held him to be a career offender based on two state-level predicate drug offenses, and sentenced him to 210 months in prison.

Nasir appealed, and, in its first ruling on his case, the Third Circuit sitting en banc vacated his firearms conviction under Rehaif and also remanded for resentencing on all charges, holding that the career-offender enhancement was not properly applied. The Government then sought and obtained certiorari to the Supreme Court, which vacated the judgment in light of the intervening decision in Greer—where the Court had held that Rehaif errors can only be a basis for plain-error relief if the defendant can show that they would have presented evidence at trial that they were unaware of their felon status.

On remand from the Supreme Court decision, the Third Circuit affirmed all of Nasir’s convictions but still remanded for resentencing, reiterating its prior ruling that he did not qualify for the career-offender enhancement. The plain language of the guidelines does not include inchoate “attempt” drug crimes like the one that was used as one of Nasir’s predicate offenses.

Appeal from the District of Delaware
En banc opinion by Jordan

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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