Can a person be convicted of conspiracy to violate a statute containing an element increasing the offense's severity, where that element is not actually met and no two conspirators believed or agreed it was met?

QUESTIONS PRESENTED FOR REVIEW Felix Cisneros, Jr. was convicted of conspiracy to help an aggravated felon enter the United States, 8 U.S.C. § 1327, despite the fact that the person he assisted was not an aggravated felon, and Cisneros never agreed with any co-conspirator that he was an aggravated felon. Though Cisneros’s opening brief on appeal argued that the government’s evidence was insufficient to support the conspiracy conviction because it failed to show an agreement to violate § 1327, the panel held Cisneros had waived the more specific argument that the government’s evidence was insufficient to show an agreement as to § 1327’s aggravated felon element, because that specific argument was not sufficiently developed in his opening brief. The questions presented are: 1. Can a person be convicted of conspiracy to violate a statute containing an element increasing the offense’s severity, where that element is not actually met and no two conspirators believed or agreed it was met? 2. Can a person be convicted of conspiracy to violate a statute containing a severity-increasing element that is not actually met, where no member of the alleged conspiracy believed it was met? 3. This Court held in Lebron v. Natl Railroad Passenger Corp., 513 U.S. 374, 379 (1995), that “once a federal claim is properly presented, a party can make any argument in support of that claim,” and in United States v. Olano, 507 U.S. 725, 733 (1993) that arguments cannot be unintentionally waived. Are those holdings inconsistent with circuit rules deeming arguments “waived” if inadvertently omitted from a party’s opening brief on appeal, even if they are subsumed in a larger claim the brief raises? i Statement of