No. 18-2888 _____________

UNITED STATES OF AMERICA

v.

MALIK NASIR, Appellant _______________

On Appeal from the United States District Court for the District of Delaware (D.C. No. 1-16-cr-0015-01) District Judge: Hon. Leonard P. Stark _______________

Argued on November 12, 2019 before Merits Panel Argued En Banc on June 24, 2020 Remanded by the Supreme Court of the United States On October 4, 2021 Submitted on Remand (November 5, 2021) Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, SCIRICA,* and RENDELL,* Circuit Judges.

(Filed: November 8, 2021) _______________ Keith M. Donoghue [ARGUED] Brett G. Sweitzer Federal Community Defender Office For the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center – Suite 540 West Philadelphia, PA 19106 Counsel for Appellant Whitney C. Cloud [ARGUED] Robert F. Kravetz [ARGUED] Daniel E. Logan, Jr. Office of United States Attorney 1313 North Market Street Hercules Bldg. – Ste. 400 Wilmington, DE 19801 Counsel for Appellee

* Judges Scirica and Rendell have elected to participate as members of the en banc court pursuant to Third Circuit I.O.P. 9.6.4.

2 Ilya Shapiro Cato Institute 1000 Massachusetts Avenue, NW Washington, DC 20001 Counsel for Amicus Cato Institute Jared McClain New Civil Liberties Alliance 1225 19th Street, NW – Suite 450 Washington, DC 20036 Counsel for Amicus New Civil Liberties Alliance Evan A. Young Baker Botts 98 San Jacinto Boulevard – Suite 1500 Austin, TX 78701 Counsel for National Association of Home Builders, American Farm Bureau Federation, National Cattlemens Beef Association, and National Mining Association _______________

OPINION OF THE COURT _______________ JORDAN, Circuit Judge.

On a tip, Malik Nasir was arrested near a storage unit in which he kept the marijuana he was selling. He was subsequently charged with, and convicted of, two drug offenses and a firearm offense. At sentencing, the District Court applied a career offender enhancement found in the United States Sentencing Guidelines (the “guidelines”). Nasir

3 appealed his convictions and challenged the application of that enhancement. For the reasons that follow, we reject the challenge to his convictions and reiterate that the sentencing enhancement was not properly applied.1 We will therefore

1 This is not our first effort to address Nasir’s appeal. A panel of the Court heard argument from the parties on November 12, 2019. We then sua sponte determined to rehear the case en banc. While several issues were to be decided, we focused our en banc attention on two questions in particular: first, whether the career offender enhancement was properly applied, and, second, whether his firearms conviction could be upheld after the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). We were unanimous in deciding the first issue in the negative, and, though closely divided on the second issue, we concluded that the firearms conviction could not stand. We thus vacated Nasir’s conviction as a felon in possession of a firearm and remanded for a new trial on that charge, as well as for resentencing on the remaining counts of conviction. United States v. Nasir, 982 F.3d 144, 150 (3d Cir. 2020), cert. granted, judgment vacated, No. 20-1522, 2021 WL 4507560 (U.S. Oct. 4, 2021). The government then sought a writ of certiorari. Following oral argument in a pair of different cases, Greer v. United State