United States of America v. Tahjair Dorsey

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 23-2125
_______________________
UNITED STATES OF AMERICA
v.
TAHJAIR DORSEY,
Appellant
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 4-22-cr-00056-001
District Judge: Honorable Matthew W. Brann
__________________________
Argued April 18, 2024
Before: HARDIMAN, PHIPPS, and SMITH, Circuit Judges
(Filed: June 24, 2024)
Jason F. Ullman [ARGUED]
Office of Federal Public Defender

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100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Patrick J. Bannon
Office of United States Attorney
235 N Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
William Glaser [ARGUED]
United States Department of Justice
Criminal Division
Room 1264
950 Pennsylvania Avenue NW
Washington, DC 20530
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
_____________________
OPINION
_____________________

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SMITH, Circuit Judge.
Tahjair Dorsey appeals his conviction for possession of
a firearm by a convicted felon pursuant to 18 U.S.C.
§ 922(g)(1). He argues that § 922(g)(1) is unconstitutional as
applied to him under the Second Amendment. Yet Dorsey did
not raise an objection on Second Amendment grounds at any
stage of the District Court proceedings. We therefore review
for plain error, and because Dorsey has not shown that any
error here was plain, we will affirm.
I.
In September 2020, Dorsey pleaded guilty to carrying a
firearm without a license in violation of 18 Pa. Cons. Stat.
§ 6106(a)(1). The firearm, a Glock 19 9mm handgun with a
fully loaded, extended magazine holding 30 rounds, had been
stolen from someone in Georgia. Under Pennsylvania law, a
violation of § 6106(a)(1) is a felony conviction punishable by
up to seven years’ imprisonment. 18 Pa. Cons. Stat. § 1103(3).
Dorsey was sentenced to serve between six and twenty-three
and a half months in prison and was paroled on June 1, 2021.1
In August 2021, members of the Lycoming County
Narcotics Enforcement Unit and agents from the Bureau of
Alcohol, Tobacco, Firearms, and Explosives began to
investigate suspected gang activity in Williamsport,
Pennsylvania. On August 30, 2021, agents observed Dorsey
and another individual leaving a residence which was being
monitored as a part of that investigation. The pair then entered
a vehicle. When officers stopped the vehicle, Dorsey fled on
foot. He was soon apprehended and officers recovered a Smith
1 After his arrest for the instant offense in August 2021, the
state trial court revoked his parole.

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& Wesson 9mm handgun nearby. The handgun, which had
been stolen from someone in North Carolina, resembled a
handgun that Dorsey had been depicted holding in a post on
social media. Subsequent testing revealed that Dorsey’s DNA
was on the handgun.
On February 10, 2022, a federal grand jury returned a
one-count indictment against Dorsey charging him as a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
As set forth below, our decision in Range v. Attorney General,
69 F.4th 96 (3d Cir. 2023) (en banc) controls the outcome of
this case. A petition for rehearing en banc in Range was granted
on January 6, 2023. A full month after that petition was
granted, on February 7, 2023, Dorsey pleaded guilty pursuant
to a written plea agreement. On June 6, 2023, we issued our en
banc decision in Range. Id. at 96. The very next day, the
District Court sentenced Dorsey to time served and three years
of supervised release.2 At no time, from his indictment to his
sentencing—a period just shy of 16 months—did Dorsey raise
an objection to the constitutionality of § 922(g)(1). Dorsey
timely appealed.
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C.
§ 1291. Because Dorsey did not raise his Second Amendment
challenge before the District Court, we review for plain error
pursuant to Federal Rule of Criminal Procedure 52(b).
2 Although Dorsey’s guideline range was 15-21 months, at the
time of sentencing he had already been incarcerated for 21
months and 8 days.

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To prevail under the plain-error framework, an
appellant must satisfy the four-prong test set forth in United
States v. Olano, 507 U.S. 725, 732 (1993). The Olano test
requires an appellant to show (1) a legal error (2) that is plain
and (3) that has affected his substantial rights. Id. at 732-33;
see also Puckett v. United States, 556 U.S. 129, 135 (2009). If
an appellant satisfies the first three Olano prongs, the court has
discretion to correct the error if (4) it seriously affects the
fairness, integrity, or reputation of judicial proceedings. Olano,
507 U.S. at 732.
A legal error is a “[d]eviation from a legal rule” that has
not been waived. Id. at 732-33.3 An error is “plain” if it is “clear
or obvious, rather than subject to reasonable dispute.” Puckett,
556 U.S. at 135 (citation omitted). In “most cases,” Olano’s
third prong, requiring an appellant to show that the error
affected his substantial rights, “means that the error must have
been prejudicial: It must have affected the outcome of the
3 The Olano Court began by noting that rights, constitutional
or otherwise, can be forfeited by a failure to timely raise the
right before the judge handling a case. 507 U.S. at 731. Thus,
Rule 52(b) “provides a court of appeals a limited power to
correct errors that were forfeited because not timely raised in
district court.” Id. (emphasis added); see also Hamer v.
Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 n.1 (2017)
(“The terms waiver and forfeiture—though often used
interchangeably by jurists and litigants—are not synonymous.
Forfeiture is the failure to make the timely assertion of a right;
waiver is the intentional relinquishment or abandonment of a
known right.”) (cleaned up).

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district court proceedings.” Olano, 507 U.S. at 734.4 Our
inquiry at the fourth prong of the Olano test, into the influence
of the error on the fairness, integrity, or reputation of judicial
proceedings, is “case[] specific and fact[] intensive.” Puckett,
556 U.S. at 142.
“Meeting all four prongs” of the Olano test “is difficult,
as it should be.” Puckett, 556 U.S. at 135 (cleaned up). At the
same time, even though “Rule 52(b) is permissive, not
mandatory, it is well established that courts should correct a
forfeited plain error that affects substantial rights” if the fourth
prong of Olano is satisfied. Rosales-Mireles v. United States,
585 U.S. 129, 137 (2018) (cleaned up) (emphasis added).
Yet courts must still bear in mind that the Supreme
Court has “repeatedly cautioned” against any “‘unwarranted
extension’ of the authority granted by Rule 52(b),” noting that
the Rule “strikes” a “careful balance . . . between judicial
efficiency and the redress of injustice.” Puckett, 556 U.S. at
135 (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
And though it is not entirely uncommon for a court to
4 There is also a “limited class” of “structural errors,” Johnson
v. United States, 520 U.S. 461, 468-69 (1997), that “can be
corrected regardless of their effect on the outcome,” United
States v. Cotton, 535 U.S. 625, 632 (2002) (quoting Olano, 507
U.S. at 735). “Structural errors are a very limited class of errors
that affect the framework within which the trial proceeds such
that it is often difficult to assess the effect of the error.” United
States v. Marcus, 560 U.S. 258, 263 (2010) (cleaned up and
internal citations omitted). The Supreme Court has found
structural error in cases involving, inter alia, total deprivation
of trial counsel, lack of an impartial trial judge, and violation
of the right to a public trial. Id. (collecting cases).

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determine, on plain error-review, that a constitutional error
requiring correction has occurred,5 we must approach
constitutional challenges to statutes with particular care.6
5 See, e.g., United States v. Woods, 14 F.4th 544, 559-60 (6th
Cir. 2021) (convictions for both attempted murder and assault
with a dangerous weapon, under Violent Crimes in Aid of
Racketeering Act, based on same shooting at same victim at
same moment violated Double Jeopardy clause and was plain
error); United States v. Morrissey, 895 F.3d 541, 547-49 (8th
Cir. 2018) (failure of district court to instruct the jury that it
could not convict defendant for both possession and receipt of
child pornography based on the same facts violated Double
Jeopardy clause and was plain error); United States v. Suarez,
879 F.3d 626, 635-38 (5th Cir. 2018) (imposition of ten-year
mandatory minimum sentence when fact in issue not submitted
to a jury and found beyond a reasonable doubt violated
defendant’s Sixth Amendment rights and was plain error);
United States v. Cesare, 581 F.3d 206, 207 (3d Cir. 2009)
(entry of dual convictions for bank robbery and armed bank
robbery arising from the same offense violated Double
Jeopardy clause and was plain error); United States v. Bruno,
383 F.3d 65, 78, 81 (2d Cir. 2004) (admission of hearsay
testimony which violated the Confrontation Clause was plain
error).
6 In Government of Virgin Islands v. Vanterpool, 767 F.3d 157
(3d Cir. 2014), we denied a First Amendment challenge to a
Virgin Islands statute, noting that, although we had not
“expressly commented” on the issue, our sister circuits had
regularly “denied relief when an appellant . . . raised a
constitutional challenge to a statute for the first time on
appeal.” Id. at 162.

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Federal statutes are, after all, presumed to be constitutional.
Reno v. Condon, 528 U.S. 141, 148 (2000).
III.
Dorsey has not shown plain error because he cannot
satisfy the second prong of Olano. That is, even if Dorsey’s
conviction can be said to have violated the Second
Amendment, any such error here was not plain.
This Court’s en banc decision in Range, as noted above,
controls the outcome of this case. Dorsey argues that the
unambiguous rule announced by Range is that § 922(g)(1)
cannot be constitutionally applied to an individual who has a
single, non-violent felony conviction regardless of the nature
and timing of the prior offense and the defendant’s parole
status at the time of the offense conduct. That argument
overstates the breadth of our holding. Range held only that
disarming an individual with a single, almost-thirty-year-old
criminal conviction for food stamp fraud was not consistent
with the Second Amendment. See 69 F.4th at 98-99, 106.
Because Dorsey cannot show that it is beyond dispute that he
is similarly situated to Range for Second Amendment
purposes, any Second Amendment error here was not plain.
A.
To repeat: the second prong of the Olano test requires
us to determine whether an error is “plain—that is to say, clear
or obvious.” United States v. Aguirre-Miron, 988 F.3d 683,
688 (3d Cir. 2021) (quoting Rosales-Mireles, 585 U.S. at 134).
An error is “clear or obvious” when the underlying legal
proposition is not “subject to reasonable dispute.” Puckett, 556

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U.S. at 135. Whether an error is plain must be evaluated based
on the state of the law while the case under review is on appeal.
United States v. Henderson, 64 F.4th 111, 120 (3d Cir. 2023).
The parties agree that two cases govern the outcome of
this appeal: New York State Rifle & Pistol Ass’n v. Bruen, 597
U.S. 1 (2022), and Range v. Attorney General, 69 F.4th 96 (3d
Cir. 2023) (en banc).7 Bruen represented a sea-change in
Second Amendment jurisprudence. In Bruen, the Supreme
Court rejected means-end scrutiny in the Second Amendment
context and articulated a new, two-step analytical approach for
courts confronting such challenges. See Bruen, 597 U.S. at 22-
23; Lara v. Comm’r Pa. State Police, 91 F.4th 122, 129 (3d
Cir. 2024).
Under Bruen’s first step, a court must determine
whether “the Second Amendment’s plain text covers an
individual’s conduct.” Bruen, 597 U.S. at 17. If the court
concludes that the challenger is among “the people” who have
7 Dorsey’s counsel also suggested at oral argument that the
Court should look to then-Judge Barrett’s dissenting opinion in
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J.,
dissenting). Yet that out-of-circuit case predates Bruen and is
only a dissent. It can hardly be relied upon to demonstrate that
the District Court’s purported error was obvious.
Moreover, though Dorsey’s counsel referenced both Binderup
v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc),
and Judge Hardiman’s concurrence in that case, Binderup was
abrogated by Bruen. Range, 69 F.4th at 100-01. Thus, neither
the majority opinion nor Judge Hardiman’s concurrence can be
relied upon to support a conclusion that plain error occurred.

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Second Amendment rights and the text of the Second
Amendment applies to the conduct at issue, the Constitution
presumptively protects that conduct. See id.; Lara, 91 F.4th at
129; Range, 69 F.4th at 101-03.
At Bruen’s second step, the court must determine
whether the restriction in question “is consistent with the
Nation’s historical tradition of firearm regulation.” Bruen, 597
U.S. at 24. The Government “must affirmatively prove that its
firearms regulation is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.”
Id. at 19. “Historical tradition can be established by analogical
reasoning, which ‘requires only that the government identify a
well-established and representative historical analogue, not a
historical twin.’” Range, 69 F.4th at 103 (quoting id. at 30).
Beyond setting forth the proper analytical framework
for evaluating Second Amendment objections, Bruen tells us
little about how to evaluate Dorsey’s challenge. Bruen
involved a state law requiring applicants for unrestricted
concealed-carry licenses to demonstrate a special need for self-
defense. 597 U.S. at 8-13. Thus, Bruen’s step-two analysis
focused on whether the Government’s proffered historical
analogues could support restrictions on public carry. See id. at
39-70. Bruen said nothing about who may be disarmed and for
how long that disarmament may last. See id. at 72 (Alito, J.,
concurring) (“Our holding decides nothing about who may
lawfully possess a firearm.”).
Thus, Bruen decided a “where” question rather than a
“who” question. See Range, 69 F.4th at 100. In Range, this
court was required to adjudicate a “who” question. The issue
in Range was whether § 922(g)(1) could constitutionally be
applied to an individual with a single, nearly thirty-year-old
criminal conviction for making a false statement to obtain food

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stamps in violation of 62 Pa. Stat. Ann. § 481(a). Id. at 98. We
held that it could not. Id. at 106.
Applying the Bruen standard, we first concluded that
Range was among “the people” who have Second Amendment
rights, despite his prior conviction, and that Range’s request
“to possess a rifle to hunt and a shotgun to defend himself at
home [] tracks the constitutional right as defined by Heller.”
Id. at 101-03 (citing District of Columbia v. Heller, 554 U.S.
570, 582 (2008)).
At the second step of the Bruen test, we held that the
Government failed to carry its burden to show that § 922(g)(1),
as applied to Range, “is part of the historical tradition that
delimits the outer bounds of the right to keep and bear arms.”
Id. at 103-06.8 We declined to set forth a “touchstone” attribute
that the Government could rely upon to justify disarmament,
such as dangerousness, noting that the Government failed to
carry its burden as to Range, whether the analysis was
“grounded in dangerousness or not.” Id. at 104 n.9. We further
emphasized that our decision was a “narrow one” because the
Government failed to show that the Republic has a
longstanding history and tradition of depriving “people like
Range” of their firearms. Id. at 106.
8 We concluded that the Government’s proffered analogues—
status-based restrictions disarming Loyalists and Native
Americans at the Founding, the historical practice of capital
punishment, and forfeiture laws—were insufficient to carry the
Government’s burden given the specifics of Range’s situation.
Id. at 104-06.

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B.
Range is of little aid to Dorsey unless he can show that
there can be no reasonable disagreement as to whether he is
similarly situated to the appellant in Range for Second
Amendment purposes. He cannot make that showing for at
least three reasons.
As a starting point, Dorsey’s statute of conviction and
the nature of his prior offense are meaningfully different from
Range’s. Dorsey was convicted of violating a state firearm law,
while Range was convicted of food stamp fraud. The former
represents a failure to comply with a state law regulating the
possession and use of deadly weapons; the latter is essentially
a crime of dishonesty. It is far from clear that those offenses
are similar for Second Amendment purposes. Moreover, Range
explicitly left open the possibility that the Second Amendment
permits an individual convicted of a “dangerous” felony to be
disarmed. Id. at 104 n.9. Failure to comply with a state firearm
law is at least arguably dangerous. Dorsey’s disarmament on
the basis of his firearm offense is therefore not glaringly
inconsistent with Range.
Dorsey’s prior conviction is also far more recent than
Range’s prior conviction. Dorsey’s prior conviction was
entered less than four years ago, while Range’s prior
conviction was nearly thirty years old at the time of this Court’s
en banc decision. See id. at 98. Thus, it is not obvious, based
on Range, that the Second Amendment forbids a legislature
from constitutionally disarming a felon only four years after
the entry of his conviction.9
9 Because Range was decided on a narrow, as-applied basis,
the relevance, for Second Amendment purposes, of the

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Finally, and significantly, Dorsey was on state parole at
the time of the offense conduct. “A person . . . on parole . . . is
in fact still serving out his sentence.” Commonwealth v.
Frankenhauser, 375 A.2d 120, 122 (Pa. Super. Ct. 1977)
(citing Commonwealth ex rel. Banks v. Cain, 28 A.2d 897 (Pa.
1945)). “Parolees are in a position different from the general
population because they are still subject to an extant term of
imprisonment.” Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d
634, 638 (Pa. Commw. Ct. 2005). Range himself was not
serving an ongoing term of parole or its federal counterpart,
supervised release. Thus, our decision in his case provides no
guidance on the relevance of an undischarged criminal
sentence to the constitutionality of a felon possessing a firearm.
We conclude that, at the very least, there can be reasonable
debate as to whether an individual who has been released from
prison but is still serving his criminal sentence can be disarmed
consistent with the Second Amendment. Such uncertainty
demonstrates that any error here was not plain.
***
Given the sea-change effected by Bruen, and
considering the narrowness of our decision in Range, we
conclude that there can be reasonable debate as to whether the
Second Amendment permits disarmament of an individual
with a four-year-old conviction for possession of a firearm
interplay between the nature of a prior conviction and its
recency is unclear. Though Range held that a legislature cannot
constitutionally disarm an individual with a single conviction
for food stamp fraud thirty years after his conviction, it said
nothing about whether an individual with a more serious (or
more dangerous, or more violent) conviction could be
disarmed for the same (thirty-year) period. See 69 F.4th at 106.

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without a license and who was laboring under a criminal
sentence at the time of the offense conduct. Any Second
Amendment error inherent in Dorsey’s conviction therefore
was not plain. We will affirm.

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