In Rehaif, v. United States, this Court held that the government establishes that a defendant aided and abetted an 18 U.S.C. § 924(c) offense only if it proves that "the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission." 572 U.S. 65, 67 (2014). Since then, the federal Courts of Appeals have taken divergent approaches to plain error review of pre-Rehaif jury verdicts. As the Eleventh, Sixth, Eighth, and Ninth Circuits have held, may the appellate court consider the entire record—including materials that were never presented to the jury—to determine whether the error affected the defendant's substantial rights under the third prong of plain error review? Or as the Seventh and Second Circuits have held, is this non-jury evidence properly considered only under the fourth prong of plain error review, when the court considers whether to exercise its discretion to correct the error? Or, as yet another Circuit has held, is a Rehaif-related constitutional error a "structural" error that automatically satisfies the third prong of plain error review?

The question presented is: Can the appellate courts' divergent approaches to plain error review of pre-Rehaif jury verdicts be reconciled with one another? Are the federal Courts of Appeals applying plain error review in a manner that is contrary to this Court's precedent in United States v. Olano, 507 U.S. 725 (1993)?

Can the appellate courts' divergent approaches to plain error review of pre-Rehaif jury verdicts be reconciled with one another?