United States of America v. Lynell Guyton

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-3093
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UNITED STATES OF AMERICA
v.
LYNELL GUYTON,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-17-cr-00215-001)
District Judge: Honorable David S. Cercone
____________
Argued on June 3, 2025
Before: HARDIMAN, BIBAS, and FISHER, Circuit Judges.
(Filed: July 18, 2025)
Abigail E. Horn [Argued]
Federal Community Defender Office for the Eastern District of
Pennsylvania
The Curtis Center, Suite 540 West

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601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant
Adam N. Hallowell [Argued]
Laura S. Irwin
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
A jury convicted Lynell Guyton of nine drug-
trafficking, firearm, and money-laundering offenses. Guyton
appeals his judgment of conviction and sentence, citing a host
of errors. Most of the arguments he now raises were
unpreserved, and some raise questions of first impression. For
the reasons that follow, we will affirm the judgment in all
respects except one: we will vacate a firearms charge and
remand for the District Court to enter a judgment of acquittal
on that count.

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I
A
Before this federal prosecution, Guyton had many run-
ins with the state criminal justice system. Because those state
crimes are relevant to Guyton’s federal sentence in this case,
we recount them in detail.
In March 2009, Pittsburgh Police conducted a
controlled purchase of drugs from Guyton but did not arrest
him then. On April 8, 2009, Guyton was detained on unrelated
charges. Seven months later, while still in custody, Guyton was
charged under Pennsylvania law with possession with intent to
deliver a controlled substance for the March 2009 transaction.
See 35 P.S. § 780-113(a)(30). Guyton posted bond for that
charge the same day but remained imprisoned on the unrelated
offenses. On December 10, 2009, he pleaded guilty to the
unrelated charges and was sentenced to the time he served from
April 8 to December 10. Guyton was released on bond for the
March 2009 offense on December 20, 2009.
Nearly two years later, Guyton was convicted of the
March 2009 offense and sentenced to 18 to 36 months’
imprisonment followed by three years’ probation. The
sentencing court credited Guyton with 256 days—the time he
was imprisoned from April 8, 2009, to December 20, 2009. His
sentence was later reduced to one year, one month, and fifteen
days under Pennsylvania’s recidivism risk reduction incentive.
Guyton was released on July 22, 2012, 220 days after he was
sentenced.

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B
Five years after he was released from state prison,
Guyton engaged in conduct that caught the attention of federal
law enforcement: he used Skype to order large quantities of
fentanyl analogues from China. In one exchange, Guyton
asked the Chinese suppliers for “fentanyl products,” and they
promised him “a good product of opioids” with a “very strong”
effect. Supp. App. 14. Guyton repeatedly asked his suppliers
how they “camouflage[d]” the drugs, expressing concern that
United States “Customs [has] been very strict lately.” Supp.
App. 13, 25–26. One supplier sent Guyton “MoneyGram
Payment Details” so he could pay for the drugs. Supp. App. 12.
MoneyGram records showed that Guyton sent multiple wire
transfers to China.
Meanwhile, U.S. Customs and Border Protection
intercepted a suspicious package sent from Hong Kong that
was addressed to “Avon Barksdale” in Pittsburgh. App. 152–
53. The package contained about 100 grams of methoxyacetyl
and cyclopropyl fentanyl. Law enforcement replaced the drugs
with sham substances and delivered the package as addressed.
Minutes later, Guyton arrived on a gold hoverboard, retrieved
the package, and was immediately arrested.
After he was released, Guyton continued to deal drugs.
He was found in possession of cyclopropyl fentanyl during two
different traffic stops. And he continued to mix and package
drugs in his neighborhood, sometimes using the homes of
Anthony Lozito and James Defide.
As the federal investigation progressed, law
enforcement conducted trash pulls at several houses. They
found drug paraphernalia in Lozito’s and Defide’s trash and

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two firearms in Guyton’s trash. Authorities then executed
search warrants at each house. At Guyton’s, they found drug
paraphernalia, a ballistic vest, and a receipt for ammunition.
Law enforcement also searched an apparently abandoned
house next door to Guyton’s residence. Inside that house, they
recovered two firearms in a duffel bag. At Lozito’s house, law
enforcement found Guyton along with cyclopropyl fentanyl
and other drug paraphernalia.
C
A federal grand jury indicted Guyton on nine charges:
conspiracy to distribute 100 grams or more of a fentanyl
analogue in violation of 21 U.S.C. §§ 841(b)(1)(A)(vi) and 846
(Count 1); possession with intent to distribute 100 grams or
more of a mixture containing a fentanyl analogue in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vi) (Count 2);
possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g)(1) (Counts 3 and 4); possession with intent to
distribute a mixture containing a fentanyl analogue in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts 5 and 6);
attempt to distribute ten or more grams of a mixture containing
a fentanyl analogue in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(vi) (Count 7); and international money
laundering in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts
8 and 9).
The Government filed an information under 21 U.S.C.
§ 851(a) alleging that Guyton’s 2011 conviction triggered the
recidivist sentencing enhancements of § 841(b). Those charges
were included in the superseding indictment. And the grand
jury found that, as to Counts 1, 2, and 7, Guyton was convicted
in 2011 for possession with intent to deliver, delivery, or
manufacture a controlled substance in violation of

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Pennsylvania law. It further found that he “served a term of
imprisonment of more than twelve months” for the 2011
conviction and was released “within fifteen years of the
commencement of” the offenses charged in Counts 1, 2, and 7.
App. 49.
At trial, the prosecutor opened by telling the jury that
Defide would testify that Guyton used the derelict house next
door as a “mix spot.” App. 145. But on the witness stand,
Defide did not deliver as promised: he said that he and Guyton
never discussed the house. And though Defide identified the
firearms from the trash bag outside Guyton’s home, he did not
offer any testimony about the ones recovered from the derelict
house.
The Government also introduced into evidence
MoneyGram documents. A spreadsheet showed wire transfers
from “Guyton” to several recipients in different cities,
including “Beijing” and “Wuhanshi.” App. 668, 672. It also
contained columns labeled, among other things, “Snd Status,”
“Rcv Date,” and “Rcv Time.” App. 667, 671. Specific dates
and times were listed under the “Rcv Date” and “Rcv Time”
columns. A special agent with Homeland Security
Investigations described the MoneyGram spreadsheet to the
jury, explaining that Guyton sent $500 to Junyang Lu in
Beijing, China, and $450 to Piao Cheng in Wuhanshi, China.
At the close of evidence, Guyton moved for a judgment
of acquittal, which the District Court denied. 1 The District
Court then instructed the jury. On the knowledge requirement
1 Guyton elected to proceed pro se. Midway through trial, he
asked standby counsel to take over his representation, which
counsel did for the rest of the proceedings.

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for the drug possession and distribution counts (Counts 1, 2, 5,
6, and 7), the District Court issued the following instruction:
Knowingly does not require that the Defendant
knew that the acts charged and surrounding facts
amounted to a crime . . .
The phrase “knowingly or intentionally,” as used
in the offense charged, requires the Government
to prove beyond a reasonable doubt that Mr.
Guyton knew that what he possessed with the
intent to distribute was a controlled substance or
was an analogue of a controlled substance, that
is, that the Defendant knew either the legal status
of the substance, or the chemical structure and
physiological effects of that substance.
App. 597. In addition, the District Court instructed the jury on
the elements of domestic money laundering under 18 U.S.C.
§ 1956(a)(1)(A)(i), even though Counts 8 and 9 of the
indictment had charged international money laundering under
18 U.S.C. § 1956(a)(2)(A).
The jury returned a guilty verdict on all counts. The jury
was not asked to find any facts relating to Guyton’s 2011
convictions.

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D
Based on the § 851 information, the Presentence
Investigation Report (PSR) concluded, in relevant part, that the
recidivist enhancements in 21 U.S.C. § 841(b)(1)(A) and (B)
applied to Counts 1, 2, and 7. Those enhancements increased
the mandatory minimum term of imprisonment from 10 to 15
years on Counts 1 and 2. See 21 U.S.C. § 841(b)(1)(A). And
on Count 7, the mandatory minimum term of imprisonment
increased from 5 to 10 years, and the statutory maximum
increased from 40 years’ to life imprisonment. 21 U.S.C.
§ 841(b)(1)(B). Guyton did not object to the PSR.
At sentencing, the District Court adopted the PSR’s
findings. The Court imposed a sentence of 360 months’
imprisonment on Counts 1 and 2 and a concurrent 120-month
sentence on the remaining counts, followed by 10 years’
supervised release.
Guyton timely appealed.
II2
We begin with Guyton’s argument that the District
Court erred in denying his motion for judgment of acquittal on
Count 3, one of the two felon-in-possession-of-firearms
charges. See 18 U.S.C. § 922(g)(1). He contends that there is
insufficient evidence to support his conviction for the two guns
found in the derelict house. Guyton concedes he was near the
2 The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

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house (because he lived next door) and had access to it
(because the back door was open). But he maintains that there
was no evidence that he exercised dominion or control over the
house or otherwise knew of the firearms. So he says no
reasonable juror could have convicted him of constructively
possessing those firearms. We agree.
To prove constructive possession, the Government was
required to demonstrate that Guyton knew about the guns and
exercised dominion and control over the area where they were
found.3 United States v. Jenkins, 90 F.3d 814, 818 (3d Cir.
1996). Viewing the evidence in the light most favorable to the
Government, a reasonable jury could not find that Guyton
constructively possessed the firearms stored in the derelict
house. See United States v. Wolfe, 245 F.3d 257, 261 (3d Cir.
2001). No witness testified to that effect: when asked if Guyton
owned any firearms, Defide identified only the ones found in
Guyton’s trash. And there is no forensic evidence tying Guyton
to the guns in the house next door: the Government tested the
firearms for fingerprints and DNA but found none. While law
enforcement did seize a bulletproof vest and a receipt for
ammunition from Guyton’s house, no evidence connected
those items to the firearms in the derelict house.
Nor was there evidence that Guyton was ever present at
the derelict house, much less that he exercised dominion or
control over it. See Jenkins, 90 F.3d at 818 (noting that “mere
3 The Government suggests that the jury could have found
actual possession. But the Government offered no proof that
Guyton “exercised direct physical control over the weapon[s].”
United States v. Caldwell, 760 F.3d 267, 278 (3d Cir. 2014).
So the Government was limited to a constructive possession
theory.

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presence on the property” where the contraband is located is
insufficient to show dominion or control (citation omitted)).
Guyton did not own, rent, or live in the house. He did not
possess a key or keep personal belongings in the house. And
despite the Government’s promises during its opening
statement, Defide did not testify that Guyton used the house as
a “mix spot.” App. 145. To the contrary, Defide testified that
he and Guyton never discussed the house. In short, the
“decisive nexus of dominion and control between the
defendant and the contraband” is absent here. Jenkins, 90 F.3d
at 820.
The Government concedes that Defide “did not connect
Guyton to the abandoned house or the firearms inside.” Gov’t
Br. 29. But it contends that Guyton’s proximity plus his motive
to conceal contraband was enough to show dominion or
control. We disagree.
The Government relies on our decision in United States
v. Foster, 891 F.3d 93 (3d Cir. 2018), but that case is
distinguishable. There, one of the defendants had been seen
several times in the driver’s seat of a stolen car involved in an
armed robbery. Id. at 111–12. Shortly after the defendant
exited the vehicle, law enforcement recovered a firearm from
the back seat. Id. at 100–02. We held that the defendant’s
proximity to the firearm, along with his motive to possess the
gun for armed robbery, evasive conduct, and presence in the
driver’s seat supported the constructive possession conviction.
Id. at 112.
Unlike Foster, this record contains no evidence that
Guyton was present where the contraband was found. No one
testified about seeing him at or in the derelict house, and he did

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not own or rent it.4 While Foster does indicate that a
defendant’s attempts to hide or destroy contraband may
establish dominion and control, there is no such evidence here.
The record shows only that Guyton tried to hide other
contraband: the firearms in the trash in front of his house and
the drug paraphernalia at his associates’ homes. It does not
follow from that conduct that any firearms found in the
neighborhood can be attributed to Guyton. Nor does his
general motive to evade authorities, without more, permit such
an inference. That is especially true here, where there were
nearly a dozen other defendants involved in this drug-
trafficking conspiracy and the drug operations involved many
houses in the same neighborhood.
On this record, a reasonable jury could not infer that
Guyton constructively possessed the two firearms found in the
derelict house. So we will vacate Guyton’s conviction on
Count 3 and remand for the District Court to enter a judgment
of acquittal on that count.
4 For that same reason, the other cases the Government cites
are inapt. In United States v. Benjamin, the firearm was found
in the defendant’s basement, and the evidence showed that the
defendant had previously used that firearm. 711 F.3d 371, 377
(3d Cir. 2013). Similarly, in United States v. Walker, the
firearm was found on the floorboard of the car the defendant
was driving. 545 F.3d 1081, 1088 (D.C. Cir. 2008). And the
record in United States v. Ingram showed the defendant’s
dominion and control over a handgun found below an
apartment window: he had been spotted throwing drugs over
the apartment’s balcony, there was a handgun case and manual
inside the apartment, and the window screen of the apartment
was ajar. 207 F. App’x. 147, 150, 154–55 (3d Cir. 2006).

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III
Guyton also argues that the District Court erroneously
charged the jury on the mens rea element of his drug-
trafficking charges. He contends that the instructions did not
follow McFadden v. United States, which sets forth the
requirements for proving knowledge of Analogue Act
violations.5 576 U.S. 186 (2015). We agree. But because
Guyton never objected to these instructions as required by Fed.
R. Crim. P. 52(b), plain error applies. We will reverse only if
(1) there was an “error”; (2) the error was “plain”; (3) the error
prejudiced or “affect[ed] substantial rights”; and (4) not
correcting the error would “seriously affect[] the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (citation modified).
As we shall explain, Guyton cannot satisfy prong three.
A
To convict Guyton under 21 U.S.C. § 841, the
Government had to prove knowledge. McFadden, 576 U.S. at
194. Because Guyton was charged with distributing and
possessing analogue substances, the Government could prove
its case by showing: (1) that Guyton knew the substance was
“actually listed on the federal drug schedules or treated as such
by operation of the Analogue Act” or (2) that he knew of
“features” that made it an analogue, such as chemical structure
5 The Controlled Substance Analogue Enforcement Act of
1986 “identifies a category of substances substantially similar
to those listed on the federal controlled substance schedules”
and “instructs courts to treat those analogues” as schedule I
controlled substances if they are intended for human
consumption. McFadden, 576 U.S. at 188.

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or physiological effects that are “substantially similar” to those
of a controlled substance. Id. The District Court’s instructions
were mistaken with respect to both options.
1
The District Court’s instruction on the first McFadden
option contained two errors. The Court instructed the jury that
Guyton need not know the acts charged “amounted to a crime.”
App. 597. That was incorrect because McFadden’s first option
requires proof that the defendant knew he was violating some
federal law. See 576 U.S. at 195 n.3. The Government insists
that the District Court’s “amounted to a crime” language
referred only to McFadden’s second option, but that reading of
the record is untenable. The District Court gave that charge
before giving both McFadden instructions. It did not restrict
the charge to the second McFadden option, so it applied
equally to the first.
The District Court also erred by instructing the jury that
it could find knowledge if Guyton knew the “legal status of the
substance.” App. 597. That is because McFadden requires that
the defendant know that the analogue substance is controlled
under a federal law, not just “some law.” 576 U.S. at 195. The
Government rejoins that “in the context of the overall charge,”
the instructions clearly referred to federal law. Gov’t Br. 18
(citation omitted). It argues that the phrase “legal status”
referred back to “the status of being a ‘controlled substance’
and ‘analogue,’ which are terms of federal law.” Gov’t Br. 17
(citations omitted). So, the Government suggests, the jury
understood that the mens rea element required Guyton to know
the analogue’s status under federal drug laws. That argument
is unpersuasive.

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“Controlled substance” and “analogue” are not
exclusively federal statutory terms. See, e.g., 35 P.S. §§ 780-
102, 780-104 (scheduling “controlled substances” and
“analogues,” respectively). Indeed, just before the charge at
issue, the District Court defined “controlled substance” for the
jury as “some kind of a prohibited drug,” without reference to
federal law. App. 596. That ambiguity was exacerbated by the
various references to Pennsylvania’s controlled substance laws
throughout trial. So it is far from clear that “legal status”
referred exclusively to federal drug laws, as required by
McFadden.6
2
The District Court’s instruction on McFadden’s second
option was also erroneous. The Court correctly instructed the
jury that it could find knowledge if Guyton knew “the chemical
structure and physiological effects of that substance.” App.
597. But that instruction was incomplete because McFadden
requires a comparison: that the defendant knew the analogue
substance had a chemical structure or a physiological effect
6 The Government advances two additional arguments. First, it
says that the District Court “never suggested that Guyton could
be convicted based on his knowledge of state law.” Gov’t Br.
17. But the lack of explicit reference to state law does not
amount to an affirmative reference to federal law, which
McFadden requires. Second, the Government emphasizes that
the District Court’s abridged instruction mirrored language in
the Fourth Circuit’s McFadden opinion on remand from the
Supreme Court. But elsewhere in the opinion, the Fourth
Circuit described the correct legal standard in full. See United
States v. McFadden, 823 F.3d 217, 223–28 (4th Cir. 2016).

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substantially similar to that of a controlled substance. 576 U.S.
at 194.
The Government again argues that, when reviewed in
context, this instruction was proper. Earlier in its instructions,
the District Court had defined a fentanyl analogue as having a
“chemical structure which is substantially similar to the
chemical structure of fentanyl,” and “a stimulant, depressant,
or hallucinogenic effect on the central nervous system that is
substantially similar to or greater than” that of fentanyl. App.
596. The Government argues that this definition was
“permissibly incorporated” into the later charge on the
knowledge element. Gov’t Br. 19. Once again, we are not
persuaded.
The District Court defined “analogue of fentanyl” while
instructing the jury on the object of the underlying offense, a
distinct element from mens rea. App. 596. And the District
Court did not cross reference that definition when it gave the
subsequent mens rea instruction. On this record, it is not
apparent that the earlier definition was incorporated into the
later charge, and we will not assume that the jury drew such an
inference.
* * *
The upshot is that the District Court erred in instructing
the jury on the mens rea requirement on Counts 1, 2, 5, 6, and
7. And the error was plain because it was “clear” under
McFadden. United States v. Adams, 252 F.3d 276, 286 (3d Cir.
2001) (citation modified).

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B
At Olano’s third prong, Guyton must show prejudice:
“a reasonable probability” that “the outcome of the proceeding
would have been different” with properly worded instructions.
Molina-Martinez v. United States, 578 U.S. 189, 194 (2016)
(citation modified). Guyton cannot make that showing here
because there is overwhelming evidence that he knew he was
trafficking federally controlled substances, which satisfies
McFadden’s first option.
Guyton knew his drugs were “subject to seizure at
customs.” McFadden, 576 U.S. at 192 n.1. He told Chinese
suppliers to “camouflage” his opioid shipments “to pass U.S.
customs,” which he noted had “been very strict lately.” Supp.
App. 25–26. And in an inculpatory homage to the drug-
trafficking kingpin of the acclaimed television series The Wire,
Guyton instructed that the shipment be mailed to “Avon
Barksdale.” Supp. App. 16–17. These efforts to dodge
Customs, along with the “concealment of his activities” and
other “evasive behavior,” provided compelling evidence that
Guyton knew the drugs in the intercepted shipment—the basis
for Count 7—were federally controlled. McFadden, 576 U.S.
at 192 n.1.7
Because the evidence shows that Guyton had the
requisite knowledge under § 841(b), he has not established that
7 That evidence also supports Guyton’s other drug-related
convictions (Counts 1, 2, 5, and 6) because he trafficked the
same substance found in the intercepted shipment—
cyclopropyl fentanyl. So he continued to know that his
substances were subject to seizure by Customs, and thus
controlled under federal law.

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the District Court’s instructional errors affected his substantial
rights. So we find no reversible error on this point.
IV
Guyton argues that the District Court constructively
amended Counts 8 and 9 of the indictment. Those counts
charged him with international money laundering under 18
U.S.C. § 1956(a)(2)(A), alleging that he “transmit[ed] and
transfer[ed] funds from a place in the United States to a place
outside the United States” to promote drug trafficking. App.
47–48. But when instructing the jury, the District Court
charged domestic money laundering under 18 U.S.C.
§ 1956(a)(1)(A)(i). The Court instructed the jury to decide
whether “Guyton conducted, or attempted to conduct, a
financial transaction, which affected interstate commerce,”
with criminal proceeds to promote drug trafficking. App. 610.
Guyton contends that this instruction amounted to a
constructive amendment because it permitted the jury to
convict him of an offense different from the one charged in the
indictment. See United States v. Daraio, 445 F.3d 254, 259–60
(3d Cir. 2006) (explaining that a constructive amendment
occurs when evidence, arguments, or jury instructions “modify
essential terms of the charged offense” so that “there is a
substantial likelihood that the jury may have convicted the
defendant for an offense differing from” what the indictment
“actually charged”).
Relying on United States v. Carey, Guyton contends
that his motion for judgment of acquittal—which did not
mention a constructive amendment—preserved his argument.
72 F.4th 521 (3d Cir. 2023). We disagree because Carey held
that “attacking the sufficiency of the evidence” in a Rule 29
motion preserved a challenge to an improper variance, not a

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constructive amendment. Id. at 529 & n.9 (explaining that an
improper variance occurs when the trial evidence materially
differs from the facts alleged in the indictment); see Fed. R.
Crim. P. 29. Constructive amendments and variances are
distinct arguments that stem from different constitutional
provisions. United States v. Vosburgh, 602 F.3d 512, 532 n.20
(3d Cir. 2010). In other contexts, Rule 29 motions have been
held not to preserve new arguments on appeal. See, e.g., United
States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002) (holding
that a new argument about the sufficiency of the evidence was
unpreserved). Guyton does not provide any good reason to
depart from that rule, so we will review for plain error. See Fed.
R. Crim. P. 52(b). And we need not decide whether the District
Court constructively amended the indictment, whether it did so
plainly, or whether any error prejudiced Guyton. That is
because even if Olano’s first three prongs are all met, its fourth
prong is not.
At Olano’s fourth prong, we may decline to exercise our
discretion to reverse constructive-amendment errors “if (1) the
charged and uncharged crimes were closely linked and (2) the
evidence of guilt on the closely linked but uncharged crime is
overwhelming and essentially uncontroverted.” United States
v. Greenspan, 923 F.3d 138, 153 (3d Cir. 2019) (citation
modified). Both factors are satisfied here.
First, the two acts of money laundering penalized in
each subsection are closely linked. The indictment charged that
Guyton “knowingly transmit[ted] and transfer[red] funds from
a place in the United States to a place outside the United States”
with intent to promote drug trafficking. App. 47–48; see 18
U.S.C. § 1956(a)(2)(A). The unindicted act in the jury
instructions charged “conduct[ing]”—such as “initiating,
concluding, or participating” in—a “financial transaction” with

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the intent “to promote the carrying on of illegal drug
trafficking.” App. 611; see 18 U.S.C. § 1956(a)(1)(A)(i),
(c)(4). As is apparent from the text of the two subsections, the
differences between them are “slight.” United States v. Carr,
25 F.3d 1194, 1204 (3d Cir. 1994). Their objects—the
promotion of drug trafficking—are the same. Compare 18
U.S.C. § 1956(a)(1)(A)(i), with id. § 1956(a)(2)(A). And the
prohibited acts—transmittal/transferal and conducting—are
“so closely linked here that we are convinced that the fairness,
integrity or public reputation of judicial proceedings is not
implicated.” United States v. Gonzalez Edeza, 359 F.3d 1246,
1252 (10th Cir. 2004) (citation modified).
Second, evidence of the unindicted crime—that Guyton
“conducted” a “financial transaction” to promote drug
trafficking—is “essentially uncontroverted.” Greenspan, 923
F.3d at 153. In Skype messages to foreign suppliers, Guyton
requested “fentanyl products” and was told that he would
receive “a good product of opioids.” Supp. App. 14. He
repeatedly asked suppliers how they “camouflage[d]” the
drugs to evade Customs, expressing concern that U.S.
“Customs [has] been very strict lately.” Supp. App. 12–13, 26.
One supplier sent Guyton “MoneyGram Payment Details” so
he could pay for the drugs. Supp. App. 12. MoneyGram
records reflect those payments, indicating that multiple
monetary transfers made in Guyton’s name were sent to
recipients in China. Columns in the MoneyGram spreadsheet
entitled “Rcv Date” and “Rcv Time” list dates and times next
to those transfers, indicating that the transactions were
completed. App. 671.
Taken together, this evidence shows that Guyton both
“initiat[ed]” and “conduct[ed]” monetary transfers to foreign
recipients in exchange for synthetic opioids. App. 611; see 18

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U.S.C. § 1956(c)(4). Because the unindicted conduct is closely
linked to the indicted conduct, and the evidence of the
unindicted conduct was overwhelming and essentially
uncontroverted, the trial’s fairness, integrity, or public
reputation would not be affected by letting the alleged error
stand. See Greenspan, 923 F.3d at 153–54. So the error does
not warrant reversal.
V
Guyton also claims, for the first time on appeal, that the
District Court erred by imposing recidivist enhancements to
three of his drug convictions (Counts 1, 2, and 7) under 21
U.S.C. § 841(b)(1)(A) and (B). The Government filed an
information under 21 U.S.C. § 851(a), alleging that Guyton’s
2011 conviction under 35 P.S. § 780-113(a)(30) triggered the
recidivist sentencing provisions of § 841(b). But the District
Court failed to give him a hearing as required by 21 U.S.C.
§ 851(b). Guyton says this constitutes reversible error.
A
To begin, we must decide a question of first impression
for this Court: “whether plain error review should apply if the
defendant fails to object to § 851[b] deficiencies.” United
States v. Isaac, 655 F.3d 148, 156 (3d Cir. 2011). Ordinarily,
unpreserved errors are reviewed for plain error. Fed. R. Crim.
P. 52(b). See Olano, 507 U.S. at 731. But Guyton, relying on a
decision of another court, argues that we should depart from
that rule and apply de novo review. See United States v.

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Baugham, 613 F.3d 291, 296 (D.C. Cir. 2010) (per curiam).
We disagree.
In Baugham, the D.C. Circuit held that harmless error
review applied to an unpreserved challenge to a district court’s
failure to colloquy a defendant under § 851(b). Id. at 295–96.
In reaching that conclusion, the Baugham Court appealed to
the purpose of § 851(b): “to place the procedural onus on the
district court to ensure defendants are fully aware of their
rights.” Id. at 296. It reasoned that penalizing the defendant for
the district court’s oversight would “pervert the statute.” Id.
But see id. at 297 (Brown, J., concurring in the judgment)
(arguing that plain-error review should apply).
The Ninth Circuit—the only other appellate court to
consider the standard of review for unpreserved § 851(b)
objections—went the other way and applied plain error review.
See United States v. Severino, 316 F.3d 939, 947 & n.7 (9th
Cir. 2003) (en banc). Severino acknowledged that it was “a bit
strange to require that a defendant object to the district court’s
failure to give him an admonition” under § 851(b). Id. at 947
n.7. But the Ninth Circuit “fe[lt] bound by” a Supreme Court
decision applying plain error review to defective plea
colloquies under Rule 11 of the Federal Rules of Criminal
Procedure. Id. (citing United States v. Vonn, 535 U.S. 55, 73
(2002)).
The Ninth Circuit’s approach tracks with decisions of
our sister courts that have addressed the standard of review for
unpreserved objections to § 851(a) errors. See, e.g., United
States v. Lewis, 597 F.3d 1345, 1346–47 (7th Cir. 2010)
(applying plain-error review where the Government failed to
file an information under § 851(a)); United States v. Beasley,

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495 F.3d 142, 145–46 (4th Cir. 2007) (same); United States v.
Dodson, 288 F.3d 153, 159–161 (5th Cir. 2002) (same).
We now join the Ninth Circuit and hold that plain-error
review applies to unpreserved objections to § 851(b)
deficiencies. In doing so, we adhere to the “bright line between
harmless-error and plain-error review based on preservation.”
Greer v. United States, 593 U.S. 503, 512 (2021). And we
abide by the Supreme Court’s repeated admonition against
“any unwarranted expansion of Rule 52(b)” of the Federal
Rules of Criminal Procedure. Johnson v. United States, 520
U.S. 461, 466 (1997); see also Puckett v. United States, 556
U.S. 129, 135–36 (2009) (“The real question . . . is not whether
plain-error review applies when a defendant fails to preserve a
claim . . . but rather what conceivable reason exists for
disregarding its evident application.”).
Guyton counters that applying plain-error review here
would “penalize a defendant for not alerting the district court
to its failure to alert him” about his rights. Guyton Br. 48
(citation omitted). But the Supreme Court has rejected this
argument in a similar context, stressing “that is always the
point of the plain-error rule: the value of finality requires
defense counsel to be on his toes, not just the judge.” Vonn,
535 U.S. at 73; see also Puckett, 556 U.S. at 139 (expressing
doubt that “policy concerns can ever authorize a departure
from the Federal Rules”). That logic applies with equal force
here. While we recognize that the District Court’s failure to
colloquy Guyton is a serious matter, “the seriousness of the
error claimed does not remove consideration of it from the
ambit of the Federal Rules of Criminal Procedure.” Johnson,
520 U.S. at 466. So we decline to create an exception to the
plain-error rule for unpreserved objections to § 851(b)
deficiencies.

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B
Applying plain-error review, we agree with Guyton that
the District Court’s § 851(b) error satisfies Olano’s first and
second prongs. The Government sought enhanced penalties for
Guyton’s drug convictions under 21 U.S.C. § 841(b) and filed
an information under 21 U.S.C. § 851(a). That triggered the
requirement that the District Court
inquire of the person with respect to whom the
information was filed whether he affirms or
denies that he has been previously convicted as
alleged in the information, and [] inform him that
any challenge to a prior conviction which is not
made before sentence is imposed may not
thereafter be raised to attack the sentence.
21 U.S.C. § 851(b). In disregarding this straightforward
command, the District Court plainly erred.
C
Guyton’s claim falters at Olano’s third step, however.
He must show “a reasonable probability that, but for the error,
the outcome of the proceeding would have been different.”
Molina-Martinez, 578 U.S. at 194 (citation modified). Guyton
argues that he has met that burden: the enhanced penalties that
the District Court imposed do not apply, and but for those
enhancements, his sentence would have been less severe. We
are not persuaded.
1
Under 21 U.S.C. § 841(b)(1)(B), the government may
seek enhanced penalties if the defendant has a prior conviction

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for a “serious drug felony” as defined in 21 U.S.C. § 802(58).
That statute, in turn, provides that a “serious drug felony” is an
offense described in 18 U.S.C. § 924(e)(2) “for which (A) the
offender served a term of imprisonment of more than 12
months; and (B) the offender’s release from any term of
imprisonment was within 15 years of the commencement of
the instant offense.” Id. § 802(58).
The Government’s § 851 information alleged that
Guyton’s 2011 conviction qualified as a serious drug felony.
Recall the background of the predicate offense. In March 2009,
Guyton committed drug-related offenses but was not
immediately arrested. On April 8, 2009, he was detained for
charges pertaining to an unrelated case. Seven months later,
while still in custody for the unrelated case, Guyton was
charged with the predicate offense. He posted bond the same
day but remained in jail on the unrelated case. Guyton pleaded
guilty to the charges in the unrelated case on December 10 and
was sentenced to time served: the pretrial detention he had
served from April 8 to December 10. He remained imprisoned
until December 20, 2009.
In 2011, Guyton was convicted of the predicate state
offense. He was sentenced to 18 to 36 months’ imprisonment
on that offense on December 15, 2011. But under
Pennsylvania’s recidivism risk reduction incentive, that
sentence was reduced to one year, one month, and fifteen days.
As part of that sentence, the state court credited Guyton with
the 256 days he was imprisoned from April 9 to December 20,
2009, even though most of that time had been previously
credited to the unrelated conviction. Because of that leniency,

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Guyton was released on July 22, 2012, after serving only 220
days from the day he was sentenced.8
Guyton argues that his 2011 conviction does not qualify
as a “serious drug felony” because he did not serve “a term of
imprisonment of more than 12 months.” 21 U.S.C. § 802(58).
Even if pretrial detention counts toward a “term of
imprisonment,” Guyton reasons, it should not count here
because most of the pretrial detention was served on an
unrelated offense. Without those 256 days, Guyton argues, he
served only 220 days, a term of imprisonment less than 12
months.
2
To resolve this convoluted issue, we must decide
another question of first impression: whether “term of
imprisonment” in § 802(58) includes time served in pretrial
detention later credited to the sentence. We hold that it does.
Start with the text of § 802(58). The statute does not
define “term of imprisonment.” We generally presume that
8 On appeal, Guyton has submitted state prison records that
(1) confirm that his recidivism risk reduction incentive
minimum sentence for his 2011 conviction was one year, one
month, and fifteen days and (2) demonstrate that he was
released on July 22, 2012. Although these records were not
before the District Court, we take notice of them. See In re
Indian Palms Assoc., 61 F.3d 197, 205–06 (3d Cir. 1995)
(“Judicial notice may be taken at any stage of the proceeding,
including on appeal, as long as it is not unfair to a party to do
so and does not undermine the trial court’s factfinding
authority.” (citation modified)).

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terms used in statutes carry the same meaning that they have in
ordinary usage at the time Congress adopted them. See Niz-
Chavez v. Garland, 593 U.S. 155, 160 (2021). And at the time
Congress created the category “serious drug felony,”
“imprisonment” meant “[t]he act of confining a person,” “[t]he
quality, state, or condition of being confined,” or “[t]he period
during which a person is not at liberty.” Black’s Law
Dictionary 875 (10th ed. 2014). These definitions comfortably
encompass pretrial detention.
Moreover, nothing in the statute distinguishes time
served before conviction from time served after the imposition
of the sentence. Had Congress intended to draw such a line, it
could have used narrower language, such as “after a
conviction” or “following a conviction.” See e.g., Bail Reform
Act of 1984, Pub. L. No. 98-473, § 209(d)(4), 98 Stat. 1837,
1987 (adding Federal Rule of Criminal Procedure 46(h),
allowing courts to direct forfeiture of property “after
conviction of the offense charged” (emphasis added)).
Sensibly read, “term of imprisonment” includes pretrial
detention later credited to the sentence imposed.
Guyton insists that even if “term of imprisonment”
includes pretrial detention, it does not do so here because the
prearrest detention credited to him was for charges unrelated
to the 2011 conviction. He emphasizes that the predicate
offense must be the one “for which” he served more than 12
months. Reply Br. 25 (quoting 21 U.S.C. § 802(58)).
That argument does not get Guyton far. “[F]or which”
refers to the “serious drug felony”—here, Guyton’s drug-
related conviction for the March 2009 conduct. 21 U.S.C.
§ 802(58)(B). And Guyton did serve “a term of imprisonment
of more than 12 months” for that offense: the 256 days before

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he was sentenced plus the 220 days after he was sentenced. See
Spina v. Dep’t of Homeland Sec., 470 F.3d 116, 128 (2d Cir.
2006) (noting the “common understanding” among the 50
States, the District of Columbia, and the federal government is
that “any credited pre-conviction detention effectively
becomes time served on the imposed term of imprisonment”).
That the sentencing court retroactively converted Guyton’s
prearrest detention on an unrelated charge to time served on the
2011 conviction makes no difference under § 802(58)(B).
Once the sentencing order credited that time to Guyton’s
sentence, it became part of his “term of imprisonment.” Cf.
Moreno-Cebrero v. Gonzales, 485 F.3d 395, 398–400 (7th Cir.
2007) (pre-conviction detention credited to defendant’s
sentence counts toward the five-year “term of imprisonment”
under 8 U.S.C. § 1182(c)).9
9 Guyton also contends that his pretrial detention cannot
constitute part of the “term of imprisonment” because most of
those 256 days were credited to a previous sentence for an
unrelated conviction. Because federal sentencing law prohibits
this kind of double counting, he argues that “term of
imprisonment” should not be read to encompass it. Guyton
raised this argument for the first time in his reply brief, so it is
forfeited. United States v. James, 955 F.3d 336, 345 n.8 (3d
Cir. 2020); see also Fed. R. App. P. 28(a)(5). In any event, the
argument is unpersuasive. “[T]erm of imprisonment” refers
only to time actually “served.” 21 U.S.C. § 802(58).
Procedural defects like double-counting are not germane to
that inquiry. And if that weren’t enough, Guyton’s
interpretation would have the perverse effect of penalizing a
recidivist who had committed only one crime more severely
than a repeat offender like Guyton.

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In sum: we hold that when, as in this case, a defendant
is credited with time served in pretrial detention—thereby
reducing the time he will have to serve on his term of
imprisonment following conviction—that detention is part of
the “term of imprisonment” “for which” the offender “served”
under 21 U.S.C. § 802(58). As a result, Guyton served more
than 12 months’ imprisonment for his 2011 conviction and was
subject to the “serious drug felony” enhancements in 21 U.S.C.
§ 841(b)(1)(A) and (B). So the District Court’s failure to
colloquy him under § 851(b) did not affect the outcome of the
proceedings.
VI
In the alternative, Guyton argues that the recidivist
enhancements violated his Fifth and Sixth Amendment rights
under Alleyne v. United States, 570 U.S. 99 (2013), and
Apprendi v. New Jersey, 530 U.S. 466 (2000). He did not
preserve these arguments, so we review them for plain error.
Under Apprendi, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. at
490. That rule also applies to facts that increase the statutory
minimum sentence for a crime. Alleyne, 570 U.S. at 116. Here,
the indictment stated that Guyton “served a term of
imprisonment of more than twelve months” for the 2011
conviction and was released “within fifteen years of the
commencement of” the instant federal offenses. App. 49.
Those two facts were necessary for the 2011 conviction to
constitute a “serious drug felony.” 21 U.S.C. § 802(58). But

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the jury was not asked to find them. That was plain error under
Apprendi and Alleyne, which the Government concedes.
But Guyton cannot satisfy Olano’s third prong: that this
error affected the outcome of the proceeding. See Molina-
Martinez, 578 U.S. at 194. To make that determination, we
must first assess whether the Apprendi/Alleyne violation was a
mixed trial and sentencing error or a pure sentencing error.
United States v. Johnson, 899 F.3d 191, 198 (3d Cir. 2018).
That classification informs the scope of our prejudice analysis:
if the error is a pure sentencing one, we may not consider the
trial record; otherwise, we may. See id. at 201. A trial error
“occurs when the defendant is charged with, convicted of, and
sentenced for a crime, but one of the elements of that crime is
not submitted to the jury.” Id. By contrast, a pure sentencing
error occurs when “a defendant is charged with and convicted
of one crime, but sentenced for another.” Id.
The Apprendi/Alleyne violation here was a mixed “trial
and sentencing” error. Johnson, 899 F.3d at 198 n.2. The facts
increasing the mandatory minimum and maximum sentences
were charged in the indictment. But the jury was not asked to
find them, either in the instructions or on the verdict form. The
District Court imposed a sentence based on those facts anyway.
Because this was not a pure sentencing error, we may properly
consider the trial record on plain-error review. See id. at 201.
And the District Court’s “failure to instruct on an element
listed in the indictment is not plain error if we determine that it
is clear beyond a reasonable doubt that a rational jury would
have found the element in question absent the error.” Id. at 200
(citation modified).
Applying that standard, we conclude that the
Alleyne/Apprendi error did not prejudice Guyton. The record

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shows that Guyton served more than a year for the 2011
conviction and that he was released in 2012, well within fifteen
years of his 2017 offenses that gave rise to this case. See Greer,
593 U.S. at 511 (explaining that “an appellate court conducting
plain-error review may consider the entire record,” including
PSRs). In short, there is no reasonable probability that a
properly instructed jury would have failed to find the two facts
necessary to trigger the recidivist enhancements. So Guyton
has not shown an effect on his substantial rights to satisfy the
third prong of plain-error review.10 See Johnson, 899 F.3d at
200.
* * *
Guyton’s appellate counsel thoroughly examined the
record below and skillfully identified many errors in the trial
court. But none are reversible except the denial of Guyton’s
motion for judgment of acquittal on Count 3. Accordingly, we
will vacate that conviction and remand for the District Court to
enter a judgment of acquittal on Count 3. We will affirm the
remaining eight counts and the judgment of sentence.
10 Guyton also brings facial and as-applied challenges to his
§ 922(g) convictions (Counts 3 and 4) under the Second
Amendment. As he concedes, these arguments are foreclosed
by United States v. Dorsey, 105 F.4th 526, 532–33 (3d Cir.
2024). We acknowledge that those arguments are preserved for
further review.

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